                                                                   NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   _____________

                                        No. 08-2423
                                       _____________

                             UNITED STATES OF AMERICA

                                              v.

                                      DENNIS HICKS,
                                               Appellant

                         Appeal from the United States District Court
                           for the Eastern District of Pennsylvania
                                (Crim. No. 2-07-cr-00083-001)
                             District Judge: Hon. James T. Giles
                                  Argued: November 8, 2010


        Before: McKEE, Chief Judge, SLOVITER, and COWEN, Circuit Judges

RAYMOND J. RIGAT, ESQ. (Argued)
Two Penn Center Plaza, Suite 200
1500 JFK Blvd.
Philadelphia, PA 19102-1706

Attorney for Appellant

ZANE DAVID MEMEGER
United States Attorney
ROBERT A. ZAUZMER
Assistant United States Attorney
Chief of Appeals
BERNADETTE MCKEON (Argued)
MELANIE B. WILMOTH
Assistant United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Attorneys for Appellee



                                          OPINION

McKEE, Chief Judge.

       Dennis Hicks appeals the district court’s judgment of conviction and sentence.

For the reasons that follow, we will affirm .

       We write primarily for the parties and therefore will only set forth those facts that

are helpful to our brief discussion of the issues.1 Hicks argues that the district court erred

in denying his motion to suppress evidence found in his car, and that the district court

erred in requiring that he be shackled if he chose to observe the selection of jurors for the

venire. We can quickly dispose of the first issue, as we find that the district court

properly denied the motion to suppress.

       The testimony introduced at the suppression hearing clearly established that the

police acted appropriately in initially detaining Hicks for an investigative stop pursuant to

Terry v. Ohio, 392 U.S. 1 (1968). Once the officers saw the empty holster on Hicks’

waistband, they acted reasonably in removing Hicks from the car and searching the

passenger compartment for weapons. See Carroll v. United States, 267 U.S. 132 (1925),

and New York v. Belton, 453 U.S. 454 (1981).

       Our concern lies with the second issue – whether the district court committed plain

error by requiring Hicks to be shackled if he chose to attend the mechanical selection of

1
 We have jurisdiction pursuant to 28 U.S.C. § 1291. An objection that a defendant fails
to preserve at trial is reviewed for plain error. United States v. Couch, 291 F.3d 251, 252-
53 (3d Cir. 2002).
the persons who would thereafter undergo voir dire selection of jurors. Hicks contends

that his inability to attend without being shackled violated his constitutional right to be

present during all stages of the proceedings.

          A criminal defendant has a constitutional right “to be present at all stages of the

trial where his absence might frustrate the fairness of the proceedings.” Faretta v.

California, 422 U.S. 806, 819 n.15 (1975). This includes a right to be present for the

selection of jurors. See Gomez v. United States, 490 U.S. 858, 873 (1989). However,

there is no constitutional right to be present where the defendant’s presence “would be

useless, or the benefit but a shadow.” Snyder v. Massachusetts, 291 U.S. 97, 106-07

(1934).

         It is uncontested that the procedure involved here does not involve voir dire or any

other interaction with prospective jurors. Rather, it was represented to us at oral

argument, without contradiction, that the process involves nothing more than the

technological equivalent of drawing names from a hat. Although we have not previously

considered whether a defendant has a constitutional right to attend this initial

administrative process, other courts have. In United States v. Bordallo, 857 F.2d 519,

523 (9th Cir. 1988), the Court of Appeals for the Ninth Circuit commented that the

defendant's right to be present “does not mean . . . that the judge of a court cannot

organize his court and qualify his prospective jurors generally, without bringing into

court for such a proceeding each and every defendant who may be tried during the entire

term.”
       Similarly, the Court of Appeals for the Second Circuit has held that “routine

administrative procedures relating to jury selection are not part of the true jury

empanelment process in which parties and counsel have a right to participate.” United

States v. Greer, 285 F.3d 158, 167 (2d Cir. 2002); see also Cohen v. Senkowski, 290 F.3d

485, 490 (2d Cir. 2002) (distinguishing the right of a defendant to attend a jury selection

panel where there would be substantive questioning from an “administrative

empanelment process” where jurors would be asked questions about personal hardship in

serving). We agree.

       Hicks’ presence at this preliminary stage could not in any way have affected the

proceedings or impacted the selection of the jury. Accordingly, he had no constitutional

right to be there. Because Hicks had no constitutional right to be present when names

were selected, his absence did not violate his due process rights.

       Although we must reject Hicks’ claim of a constitutional deprivation, we are

nevertheless troubled that the district court never explained why Hicks needed to be

shackled, and it does not appear that the court considered other alternatives that would

have allowed him to be present without being shackled.

       Although this case does not involve shackling a defendant during a trial, we

nevertheless note that it is well settled that “no person should be tried while shackled . . .

except as a last resort.” Illinois v. Allen, 397 U.S. 337, 344 (1970). The Supreme Court

has explained that shackling a defendant is inherently prejudicial because it implicates

three fundamental principles: (1) the presumption of innocence; (2) the right to counsel,

including the right to participate in one’s defense and the right to testify; and (3) judicial
responsibility for the dignity and decorum that preserves the judicial process. Deck v.

Missouri, 544 U.S. 622, 630-31 (2005). Although the first two concerns are not

implicated here, we cannot ignore that shackling even at this early administrative step

does implicate the “judicial responsibility for the dignity and decorum that preserves the

judicial process[,]” as explained in Deck.

    Accordingly, a judge who orders a defendant to be shackled “must make a case

specific and individualized assessment” of the defendant on trial, taking into account

special security needs or the escape risk of the defendant. United States v. Baker, 432

F.3d 1189, 1244 (11th Cir. 2005). A judge should also consider alternatives to shackling.

See Allen, 397 U.S. at 344; see also Szuchon v. Lehman, 273 F.3d 299, 314 (3d Cir. 2001)

(holding that the trial court properly ordered that the defendant be shackled after he

violently assaulted a witness in front of the jury and after carefully considering

alternatives, such as “barring [the defendant] from the courtroom or issuing a contempt

citation”).

       Here, the district court never explained why the use of shackles was necessary, nor

did it consider alternatives to shackling. Although the Assistant United States Attorney

did attempt to explain the necessity of shackling during this phase of the proceedings at

oral argument, there is nothing on the record to suggest that the district court considered

and rejected any steps that may have been less intrusive and less dehumanizing that

would still have addressed any concerns about security.

       The government contends that the reasons for conditioning Hicks’ presence upon

his being shackled are “obvious” – namely, that the selection of the jury panel occurred in
the jury room and not in a secured courtroom, and Hicks would be in proximity of

hundreds of potential jurors, making shackles necessary for safety reasons and in order to

prevent escape. The government also points out that Hicks’ counsel did not object to the

district court’s directive that Hicks be shackled if he chose to observe the selection of

jurors’ names.

       However, the government’s representations are a poor substitute for a record that

would show that this Hobson’s choice was only tendered as a “last resort.” Allen, 397

U.S. at 344.

       Nevertheless, notwithstanding our misgivings, it is clear that there was no plain

error here because Hicks did not have a constitutional right to be present at this phase of

the proceedings in the first place. Accordingly, given the circumstances here, our

concerns do not rise to the level of a due process violation, and we will therefore affirm

the district court=s order of judgment of conviction and sentence.
