                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-3080
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                Donald K. Washburn

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                      Appeal from United States District Court
                  for the Northern District of Iowa - Cedar Rapids
                                   ____________

                              Submitted: May 17, 2013
                               Filed: August 27, 2013
                                   ____________

Before SHEPHERD, BEAM, and MELLOY, Circuit Judges.
                           ____________

BEAM, Circuit Judge.

      Donald Washburn appeals his jury conviction for wire fraud, money laundering
and making false statements to the United States Probation Office, the resulting
sentence imposed by the district court,1 as well as the district court's rulings on his


      1
       The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
combined motion for judgment of acquittal and motion for new trial. He claims the
court erred at trial in admitting certain evidence and that he was denied his right to
"conflict-free" counsel and a fair trial. For the reasons stated herein, we affirm the
conviction and sentence, and dismiss Washburn's claim for ineffective assistance of
counsel without prejudice.2

I.    BACKGROUND

       While on probation for wire fraud and money laundering convictions related to
prior commercial enterprises, Washburn again solicited investors in commercial
opportunities (namely a dice game to be marketed to casinos and investments in the
mining industry) in which Washburn erroneously claimed he had an interest.3 The
government charged Washburn in a 49-count indictment, including charges for wire
fraud, money laundering and making false statements to the probation office. Prior
to trial, the government offered Washburn a plea, in which it agreed to drop all
remaining charges if Washburn pled guilty to two counts. Washburn initialed each
paragraph of the plea agreement, signed the document, and returned it to the
prosecution. In a letter to the court concerning the change of plea hearing, the
government described the nature of the plea agreement. The day before the scheduled
change of plea hearing, Washburn sought an indefinite continuance due to an
"emergency medical necessity," "until such time as more thorough and certain medical
information as to [Washburn's] condition and prognosis is available." The district
court granted Washburn's motion but admonished that the trial remained set for about
one month later and the burden was on Washburn to reset the change of plea hearing.

      2
      Also pending on appeal are Appellant's Motion to Supplement the Record and
Appellee's Motion to Strike Portions of Appellant's Brief. Both are denied, as they
concern evidence not admitted before the district court and primarily inform
Appellant's argument regarding his assistance of counsel claim that we dismiss.
      3
      For a more complete picture of Washburn's prior convictions, see United States
v. Washburn, 444 F.3d 1007 (8th Cir. 2006).

                                         -2-
At some point, Washburn chose not to plead guilty so the hearing never took place
and the plea agreement was never offered into evidence at such a hearing.

       Washburn proceeded to trial, during which the government offered the signed
and initialed factual stipulation contained in the plea agreement as evidence in its case
against Washburn. The jury found Washburn guilty of 47 charges. Washburn
appeals, claiming the district court erred in admitting the plea agreement's factual
stipulation at trial. Washburn also challenges the district court's pretrial denial of his
motion for severance. And, Washburn claims the district court's failure to appoint
"conflict-free" counsel violated his rights under the Sixth Amendment. Finally,
Washburn claims the district court's failure to halt trial when Washburn was seriously
injured and briefly hospitalized near the end of trial violated his constitutional rights
and his rights under Federal Rule of Criminal Procedure 43. Each challenge is
discussed in detail below.

II.   DISCUSSION

      A.     Use of Plea Stipulation

             1.     Rule 410

       The determination regarding whether a statement was made in the course of
plea negotiations is a mixed question of law and fact reviewed de novo. United States
v. Young, 223 F.3d 905, 908 (8th Cir. 2000). A determination as to whether a waiver
of rights is valid is a question of law reviewed de novo. Id. at 909.

      Whether the district court erred in admitting the plea stipulation of facts at trial
is a layered inquiry. Federal Rule of Criminal Procedure 11(f) states, "[t]he
admissibility or inadmissibility of a plea, a plea discussion, and any related statement
is governed by Federal Rule of Evidence 410." Rule 410 provides that the following

                                           -3-
are inadmissible: a guilty plea that was later withdrawn, and a statement made during
plea discussions with an attorney for the prosecuting authority that did not result in
a guilty plea or they resulted in a later-withdrawn guilty plea. Fed. R. Evid. 410(a)(1),
(a)(4). There is no dispute by the parties that the factual stipulation contained in the
plea agreement offered at trial was made during the course of plea discussions. To
allow into evidence this plea stipulation in the face of its general inadmissibility, then,
the district court had to find that Washburn waived his rights under Rule 410. It is a
determination regarding such waiver that drives our analysis on appeal.

      "The Supreme Court has recognized that the protections offered by Federal
Rule of Evidence 410 and Federal Rule of Criminal Procedure 11(e)(6) are
presumptively waivable." Young, 223 F.3d at 909. "[A]bsent some affirmative
indication that the agreement was entered into unknowingly or involuntarily, an
agreement to waive the exclusionary provisions of the plea-statement Rules is valid
and enforceable." United States v. Mezzanatto, 513 U.S. 196, 210 (1995).

       Washburn claims the prosecution never advised him that the government would
attempt to use the stipulation of facts at trial if he failed to enter or withdraw his plea.
Additionally, he posits that this court must determine that even if it existed, the waiver
language was hidden in the small print thus rendering it impossible for Washburn to
make a knowing and intelligent waiver. He claims the plea memorandum contained
no clear warning, and contained conflicting statements and vague references. At
bottom, though, Washburn's claims that he involuntarily and unknowingly waived his
rights under Rule 410 are unpersuasive on appeal.

      The plea agreement initialed and signed by Washburn contained language
regarding Washburn's waiver of rights. Language relied upon by the district court
includes the following:




                                            -4-
      Paragraph 1: Defendant will plead guilty to Counts 13 and 46 of the
      [indictment.]

      Paragraph 8: By initialing each of the following paragraphs, defendant
      stipulates to the following facts. Defendant agrees these facts are true
      and may be used to establish a factual basis for defendant's guilty plea
      and sentence. Defendant has been advised by defendant's attorney of
      defendant's rights under Federal Rule of Criminal Procedure 11(f) and
      Federal Rule of Evidence 410. Defendant waives these rights and agrees
      this stipulation may be used against defendant at any time in any
      proceeding should defendant violate or refuse to follow through on this
      plea agreement, regardless of whether the plea agreement has been
      accepted by the Court. Defendant agrees that the stipulation below is a
      summary of the facts against defendant and does not constitute all of the
      facts the government would be able to prove at trial and may be able to
      prove to the Court in accordance with this agreement.

      Paragraph 30: If defendant violates any term or condition of this plea
      agreement, in any respect, the entire agreement will be deemed to have
      been breached and may be rendered null and void by the United States.
      Defendant understands, however, the government may elect to proceed
      with the guilty plea and sentencing. These decisions shall be in the sole
      discretion of the United States. If defendant does breach this agreement,
      defendant faces the following consequences: (1) all testimony and other
      information defendant has provided at any time (including any
      stipulations in this agreement) to attorneys, employees, or law
      enforcement officers of the government, to the Court, or to the federal
      grand jury may and will be used against defendant in any prosecution or
      proceeding; (2) the United States will be entitled to reinstate previously
      dismissed charges and/or pursue additional charges against defendant
      and to use any information obtained directly or indirectly from defendant
      in those additional prosecutions; and (3) the United States will be
      released from any obligations, agreements, or restrictions imposed upon
      it under this plea agreement.

(boldface in original; italicization added).


                                          -5-
       Washburn violated paragraph 1 of the agreement, which stated that Washburn
would plead guilty to two counts, and he otherwise refused to follow through with the
plea agreement in violation of paragraph 8. Accordingly, the stipulation of facts
contained in the plea agreement was fair game for use at trial per the agreement. In
opposition to this conclusion, Washburn places great emphasis on the fact that the
agreement was never approved and accepted by the court, and questions whether this
plea agreement was binding the moment he added his initials and signature. However,
Washburn offers no applicable legal precedent directly supporting the validity of his
defensive assertions. He states more than once that "no plea was ever entered by
[him]." However, this is not the crucial issue. The court's discussion in Young belies
the importance of Washburn's argument that "no plea was ever entered by [him]," or
that this plea language is too ambiguous. The plea agreement was binding at the time
Washburn added his initials and signature. United States v. Miller, 295 F.3d 824, 827
(8th Cir. 2002) ("'A plea agreement is contractual in nature and generally governed
by ordinary contract principles.'" (quoting United States v. Van Thournout, 100 F.3d
590, 594 (8th Cir. 1996)).

      As to whether Washburn waived his Rule 410 rights knowingly and voluntarily,
"'[w]e look to the circumstances surrounding the signing and entry of the plea
agreement to determine whether the defendant willfully agreed to its terms.'" Young,
223 F.3d at 909 (quoting United States v. Michelsen, 141 F.3d 867, 871 (8th Cir.
1998)). In Young, the defendant entered into a plea agreement and provided a signed
affidavit along with it, in part, so that he would be allowed to remain free on bond
pending the plea and sentencing hearing. Id. at 907. The day before the change of
plea hearing, arrest warrants were issued for Young and his co-defendants for
absconding from pretrial supervision. Id. The government sought to introduce the
affidavit signed by Young in its case against him, which the district court denied. Id.
at 908. This court determined that the affidavits utilized by the government were
made in the course of plea negotiations and were thus subject to the edicts of Rule 410
and Rule 11(e)(6). Id. The substantive issue on appeal in Young, as here, was

                                         -6-
whether Young knowingly and voluntarily waived his rights under the plea-statement
rule–whether the signed plea agreement could be used against him at trial. Id. at 909.
Relying upon similarly worded plea agreement language as that contained in
Washburn's plea, this court held that Young's waiver of his plea-statement rights was
knowing and voluntary, as there was no evidence that Young entered into the
agreement involuntarily or unknowingly. Id. at 911.

        Like Young, there is no evidence in the record that Washburn entered into this
agreement involuntarily or unknowingly. Washburn does not dispute that he signed
the plea agreement. He does not contend that he was coerced to enter into the plea or
that it was the product of duress. Washburn argues instead that the judge was required
to conduct an inquiry into the voluntariness of Washburn's waiver prior to allowing
the factual stipulation into evidence. While the court could have conducted such an
inquiry, it was not required to do so on these facts. Indeed, Washburn's arguments to
the district court in resistance to the government's motion regarding the admissibility
of the factual stipulation in the plea did not mention, or challenge, Washburn's waiver
at all. He never questioned the voluntary and knowing nature of this waiver before
the district court.4 Regardless, notwithstanding the fact that Washburn failed to raise
the issue, a dialogue between the district court and the defendant regarding the
knowing and voluntary nature of a plea agreement that usually occurs at a change of
plea hearing "is not a prerequisite for a valid waiver" of a particular right. Michelsen,
141 F.3d at 871.

       The language of the plea agreement constitutes a valid waiver of Washburn's
plea-statement rights, as it clearly states that Washburn understood the provisions
therein, among which was the acknowledgment that a consequence of failing to follow
through with the plea could be that "this stipulation may be used against defendant at

      4
        In fact, at trial, Washburn painstakenly made clear that "just so the record is
clear, defendant has never maintained the statement, the factual stipulation, was not
entered knowing [sic] and voluntary." Trial Tr. vol. III, 411.

                                          -7-
any time in any proceeding." "[I]mplicit in advice regarding the consequences of
foregoing a right is the knowledge that a right exists." Young, 223 F.3d at 911. "We
do not believe that the failure to include a rote recitation of the rules in the plea
agreement constitutes an 'affirmative indication that the agreement was entered into
unknowingly or involuntarily.'" Id. (quoting Mezzanatto, 513 U.S. at 210). Despite
Washburn's arguments to the contrary, the government "said what it meant" in the plea
itself and nothing further was required.

       When Washburn initialed the paragraphs of the factual stipulation contained in
the plea memorandum and signed the document, "he was aware of the benefits he was
securing, the rights he was foregoing, and the consequences of breaching the
agreement." Id. Washburn does not highlight any evidence, persuasive or otherwise,
that he entered into the agreement involuntarily or unknowingly. We conclude that
Washburn's plea-statement waiver was knowing and voluntary and thus the district
court did not err in allowing the government to successfully offer the plea agreement
factual stipulation as evidence against Washburn.

             2.     Rule 403

      Washburn alternatively argues that even if this court finds that he made a
knowing waiver of his Rule 410 rights, the factual stipulation should have been
excluded under Federal Rule of Evidence 403 as unduly prejudicial. Rule 403
provides:

      The court may exclude relevant evidence if its probative value is
      substantially outweighed by a danger of one or more of the following:
      unfair prejudice, confusing the issues, misleading the jury, undue delay,
      wasting time, or needlessly presenting cumulative evidence.

     The district court admitted the evidence, ruling that Washburn failed to
demonstrate that evidence of the stipulations as to the two counts would cause the jury

                                         -8-
to find Washburn's guilt on a ground different from proof specific to the offense
charged. The court further held that Washburn failed to demonstrate that the
probative value of the plea agreement factual stipulation was substantially outweighed
by the danger that the government would present needlessly cumulative evidence. In
fact, ruled the district court, admission of the stipulations had the opposite effect of
streamlining the government's presentation of evidence.

       On appeal Washburn falls well short of the threshold required for us to reverse
the district court's evidentiary ruling. Lucas v. Jerusalem Café, LLC, No. 12-2170,
2013 WL 3868144, at * (8th Cir. July 29, 2013) ("Our review of the district court's
evidentiary rulings is highly deferential, 'particularly . . . with respect to [Federal Rule
of Evidence] 403' because the district court is better positioned than we are to weigh
the probative value of a piece of evidence, in context, against its prejudicial effect."
(quoting Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008)
(alterations in original)). Washburn argues that the stipulation was admitted without
limitation and laments that the court never gave a limiting instruction. However,
Washburn fails to articulate how, in fact, the stipulation was unfairly prejudicial and,
possibly more critically, never requested any limiting instruction whatsoever, nor
objected to the proposed instructions as relevant to this claim. This claim is thus
forfeited, as Washburn makes no showing of plain error. United States v. Natale, 719
F.3d 719, 729 (7th Cir. 2013) ("[W]hen a defendant does not object to a jury
instruction before the jury retires to deliberate, the defendant may later attack that
instruction only for plain error."). Indeed, the jury acquitted Washburn of two counts
despite Washburn's stipulations admitting facts relevant to the charges. Accordingly,
we affirm the district court's admission of the factual stipulation under Rule 403.




                                            -9-
      B.     Pretrial Motion for Severance

       Prior to trial, Washburn moved to sever the financial counts (the wire fraud and
money laundering charges) from charges relating to alleged false statements to the
United States Probation Office. Before the district court, Washburn claimed that the
use of his prior fraud conviction and incarceration as evidence for the prosecution in
the false statements case would only cloud the wire fraud and money laundering
prosecutions and would thus be exploited by the government at trial and greatly
prejudice Washburn. Additionally, Washburn claimed that had the court severed the
charges, he would have testified in his defense in the false statements trial. The
district court denied the motion and, as a result, Washburn argues he was prejudiced.



        Even if charges are properly joined under Federal Rule of Criminal Procedure
8, a district court may exercise its discretion and sever the charges if the defendant
will be prejudiced by the joinder of them. Fed. R. Crim. P. 14. The parties here
dispute the proper standard of review this court should apply to the district court's
denial of Washburn's pretrial motion to sever. The government argues that the review
is for plain error because Washburn did not renew his motion for a separate trial at the
close of the government's case nor raise it in his motion for new trial. United States
v. Kirk, 528 F.3d 1102, 1107 (8th Cir. 2008). Washburn, on the other hand, claims
that this issue was, indeed, preserved and that our review is de novo. United States
v. Tyndall, 263 F.3d 848, 849 (8th Cir. 2001).

       Having determined that Washburn did not, in fact, renew his motion to sever
at the close of the government's case-in-chief or at the close of the evidence, we
acknowledge "what appears to be a split in authority on the appropriate standard of
review" in these circumstances. United States v. Garrett, 648 F.3d 618, 625-26 n.5
(8th Cir. 2011) (noting that in similar circumstances courts of this circuit have applied
an abuse of discretion standard as well as plain error review). We need not settle the

                                          -10-
matter, however, because whether reviewing for either plain error or for an abuse of
discretion, the outcome in this case remains the same. See United States v. Carter,
481 F.3d 601, 606 n.3 (8th Cir. 2007). Applying an abuse of discretion standard,
which, of the two, would be most favorable to Washburn, "we will reverse only when
that abuse of discretion results in severe or clear prejudice." United States v.
Reynolds, No. 12-2968, 2013 WL 3466822, at *2 (8th Cir. July 11, 2013). "'Severe
prejudice occurs when a defendant is deprived of an appreciable chance for an
acquittal.'" Id. (quoting United States v. Brown, 653 F.3d 656, 662 (8th Cir. 2011)).

      The district court held that evidence of Washburn's prior convictions was
admissible on the challenged counts under Federal Rule of Evidence 404(b). "[S]ince
Defendant's prior conviction would be admissible in a separate trial on Counts 1
through 36, Defendant will not be unduly prejudiced by the joinder of Counts 1
through 49. In the event he proceeds to trial, any prejudice to Defendant's case will
be adequately lessened when the court instructs the jury on the appropriate use of Rule
404(b) evidence."5 Too, the court held that Washburn's claim that he "may very well
wish" to testify failed to provide the court with sufficient information to conduct the
necessary inquiry.

       We affirm the court's denial of Washburn's motion to sever because the district
court did not abuse its discretion in its determination that Washburn's prior conviction
for wire fraud and money laundering would be admissible on all charges and would
not be unduly prejudicial. The prior conviction entailed a scheme almost identical to


      5
        On appeal, Washburn also claims that the district court erred by failing to give
a limiting instruction on the use of Rule 404(b) evidence as it indicated but Washburn
did not offer such an instruction nor object to the proposed instructions during the
conference with the court. Accordingly, this claim is forfeited, as Washburn makes
no showing of plain error. Natale, 719 F.3d at 729 ("[W]hen a defendant does not
object to a jury instruction before the jury retires to deliberate, the defendant may later
attack that instruction only for plain error.").

                                           -11-
the charged schemes and would thus be probative of motive, intent, plan, identity, and
absence of mistake. Relevant here, this court has held in similar circumstances that
the unfair prejudice did not substantially outweigh the probative value of a defendant's
prior conviction for similar schemes because the close similarity of the prior incidents
made the evidence especially probative on the question of the defendant's intent and
the absence of accident. United States v. Shillingstad, 632 F.3d 1031, 1035 (8th Cir.
2011). As a matter of course, Washburn cannot demonstrate that a joint trial caused
him severe prejudice since his prior conviction would have been probative and
admissible in a separate trial on counts 1 through 36. Accordingly, we affirm the
district court's denial of Washburn's pretrial motion to sever.

      C.     Sixth Amendment Challenge

       Washburn argues for the first time on appeal that during trial, the district court
identified evidence that contradicted the stipulation of facts already admitted into
evidence. Upon this discovery, according to Washburn, the court admonished defense
counsel that if counsel had possession of the documents at the time he allowed his
client to sign the plea agreement, he committed malpractice, as the documents were
exculpatory to the false statement charges. On appeal, Washburn argues that the court
should have, sua sponte, realized that its statements created a potential conflict for
Washburn's trial counsel. He claims the failure of the district court to further inquire
about counsel's conflict and/or have Washburn sign a waiver of some sort
acknowledging that his counsel was not conflict-free, after making such an
admonishment, violated his Sixth Amendment rights. Because Washburn failed to
raise the issue below, we review for plain error. United States v. Thornberg, 676 F.3d
703, 706 (8th Cir. 2012) ("An error by the trial court, even one affecting a
constitutional right, is forfeited if not timely asserted. Accordingly, our review is for
plain error."), cert. denied, 133 S. Ct. 1654 (2013).




                                          -12-
       As highlighted by Washburn, it is readily established that when a court
determines that a defendant is deprived of conflict-free counsel, the failure of the court
to appoint separate counsel or to otherwise take adequate steps to ascertain whether
the risk is too remote to warrant separate counsel, deprives the defendant of the
guarantee of assistance of counsel. Holloway v. Arkansas, 435 U.S. 475, 484 (1978)
(holding that the district court's failure to appoint separate counsel when counsel had
repeatedly represented to the court that representation of the three defendants in a
single trial could not be done without conflict). Certainly the right to counsel's
undivided loyalty is a critical component of the right to assistance of counsel and that
any deprivation thereof violates the Sixth Amendment. United States v. Edelmann,
458 F.3d 791, 806-07 (8th Cir. 2006). This line of jurisprudence, however, is
inapposite as to the facts here.

       As gleaned from the district court record, the documents that are the topic of
this discussion are handwritten pages Washburn gave to his attorney prior to trial that
were allegedly submitted as attachments to Washburn's monthly reports to the
probation office and that refute each false statement charge, count by count, as alleged
in the indictment. The district court, on the record, described these alleged
exculpatory documents as "suspicious," unsure of exactly what they would prove, and
surmised in the abstract that "[i]t would be attorney malpractice and ineffective
assistance to let somebody enter into a plea agreement if you had evidence that was
directly contrary, which these [exhibit C documents] purport to be. And I'll be curious
to hear the foundation on these, if they were not in the records of the Probation Office
along with the monthly reports." The colloquy between the parties' counsel and the
court concerning these documents was general in nature, discussing the documents'
existence and what they were comprised of, and left any conclusion regarding their
later admission to trial counsel, dependent upon a legal determination as to their
veracity and the ability to lay foundation in support of their admission at trial.




                                          -13-
        The court did not "[find] that a potential conflict existed," as Washburn claims,
but rather noted with curiosity the nature and circumstances surrounding the
documents' creation and use. Contrary to Washburn's gloss on the colloquy, upon
hearing these words by the district court, his trial counsel was not faced with the
choice of admitting documents and having the court conclude trial counsel was
ineffective and had committed malpractice, or not introducing the evidence and
avoiding such grave possibilities. The statements by the district court do not suggest
that malpractice or ineffective assistance occurred, nor do they lead to an analysis of
whether they created a situation of conflict contemplated by this court's Sixth
Amendment jurisprudence. Accordingly, Washburn is unable to demonstrate that his
trial counsel had a potential conflict of interest and Washburn's claim on appeal fails,
as the district court had "no further obligation." Edelmann, 458 F.3d at 807. There
is no plain error here.

       Despite Washburn's adamant claim otherwise, to the extent this claim could be
construed as a post-conviction ineffective assistance argument claim cloaked as a
constitutional one on direct appeal as the government argues, the matter is dismissed
without prejudice. A defendant may only bring an ineffective assistance claim on
direct appeal "'where the record has been fully developed, where not to act would
amount to a plain miscarriage of justice, or where counsel's error is readily apparent.'"
United States v. Thompson, 690 F.3d 977, 992 (8th Cir. 2012) (quoting United States
v. Hubbard, 638 F.3d 866, 869 (8th Cir. 2011)), cert. denied, 133 S. Ct. 1611 (2013).
This court has, "on occasion," reviewed ineffective assistance of counsel claims on
direct appeal when "the trial court was able, either through its own observations or via
testimony from a hearing, to observe the performance of defense counsel and draw
relatively unbiased conclusions about the quality of that performance." Id. at 992-93.
In that vein, the record is not fully developed enough on this issue to hold that a plain
miscarriage of justice occurred and we therefore dismiss this claim without prejudice.

      D.     District Court's Failure to Delay Trial

                                          -14-
       Finally, on the day the court was to consider jury instructions, it learned that
Washburn was in the hospital, suffering from a self-inflicted nail gun injury that
Washburn claims he endured accidentally while trying to affix molding during a
remodel project at home, early on the morning of trial. The court sought specific
information from those closer to Washburn and his treating doctors and heard
testimony from the supervising probation officer that spoke with one of Washburn's
physicians, the hospital social worker, and the deputy that had responded to the 911
call. Based upon the information gleaned from these individuals, the district court
determined that Washburn's absence at trial that day was voluntary and thus Washburn
waived his Rule 43 and constitutional rights to be present at every trial stage. The
court further concluded that the public interest in proceeding outweighed any delay
to accommodate Washburn's absence. The parties, without Washburn, conducted the
jury instructions conference and the government gave its closing argument. Washburn
returned to court after his release from the hospital in time to be present for his own
closing argument.

        This court reviews the lower court's finding of voluntary absence for clear error,
and the decision to continue with the trial in absentia for an abuse of discretion.
United States v. Wallingford, 82 F.3d 278, 280 (8th Cir. 1996); United States v.
Novaton, 271 F.3d 968, 996 (11th Cir. 2001). "In deciding whether to proceed with
trial in absentia, a district court must determine and make appropriate findings (1)
whether the defendant's absence is knowing and voluntary, and (2) if so, whether the
public interest in the need to proceed clearly outweighs that of the voluntarily absent
defendant in attending the trial." Wallingford, 82 F.3d at 280 (internal quotation
omitted). "However, it is clear that 'a violation of Rule 43 may in some circumstances
be harmless error.'" Id. (quoting Rogers v. United States, 422 U.S. 35, 40 (1975)).

       It seems as though, especially in this instance, the district court was in the best
position to discern whether Washburn's brief absence was voluntary or not. Having
made that determination, it was likewise not an abuse of discretion to conclude that

                                          -15-
the public interest in the need to proceed outweighed Washburn's interest in attending
the final parts of his trial. And, in this instance, even if it were error, it was harmless
because Washburn attended the entire trial through the close of evidence and was even
able to return to witness his defense counsel's closing arguments. Most importantly,
Washburn does not articulate any prejudice suffered by this brief absence, other than
it violated his constitutional right to be present. Peterson v. United States, 411 F.2d
1074, 1080 (8th Cir. 1969) ("[I]f no prejudice to a defendant's substantial rights
resulted from his absence at a stage of the proceedings, the courts will not overturn his
conviction.").

       The district court's conclusion is thorough and telling:

       In this case, the court held a hearing to determine whether Defendant was
       voluntarily absent. . . . Following the hearing, the court made the factual
       finding that Defendant intentionally injured himself. The court based
       this finding on the improbability of accidental injury given the safety
       features of the nail gun. In addition, the court was skeptical of
       Defendant's story that he was installing trim in his laundry room very
       early in the morning and just hours before he was due in court,
       particularly in light of the fact that only a week earlier he claimed that he
       was in such poor health that he required twenty-four hour supervision.
       Adding to the court's skepticism was the fact that the nail with which
       Defendant injured himself was not appropriate for securing trim to
       drywall and the door frame. Finally, the court relied on Defendant's
       history of malingering, both in this case and in his prior 2005 case. After
       reviewing the evidence, the court affirms its prior ruling that Defendant
       voluntarily absented himself and, consequently, waived his right to be
       present at trial.

       We affirm the district court's decision to continue with trial despite Washburn's
brief absence.

III.   CONCLUSION

                                           -16-
For the reasons stated herein, we affirm.
                 ______________________________




                            -17-
