                                                            PUBLISH



            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT

                     ________________________

                               No. 94-8074
                      ________________________
              D. C. Docket No. 5:92-00082-CR-MAC (WDO)



UNITED STATES OF AMERICA,


                                                     Plaintiff-Appellee,

                               versus

CALVIN MAURICE BOYD, a.k.a., “Mee Tee”;
PINKNEY CLOWERS, III, a.k.a. “Boo Boo”,
a.k.a. “Dog”, a.k.a “Cameiko”,


                                                Defendants-Appellants.
                      ________________________

                             No. 94-8612
                      ________________________

             D. C. Docket No. 5:92-00082-CR-MAC (WDO)

UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                versus

CALVIN M. BOYD,

                                                    Defendant-Appellant.



                      ________________________

                             No. 95-9167
                      ________________________

                  D. C. Docket No. 5:92-CR-82-2 (WDO)

UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                versus

PINKNEY CLOWERS, III,
a.k.a. Dog
a.k.a. Boo Boo,
                                                    Defendant-Appellant.
                               ________________________

                                      No. 95-9187
                               ________________________

                         D. C. Docket No. 5:92-CR-82-8 (WDO)

UNITED STATES OF AMERICA,

                                                                           Plaintiff-Appellee,

                                            versus

CALVIN BOYD,
a.k.a. Mee Tee,

                                                                       Defendant-Appellant.



                               ________________________

                     Appeals from the United States District Court
                         for the Middle District of Georgia
                           _________________________

                                   (December 18, 1997)

Before COX and BARKETT, Circuit Judges, and HUNT*, District Judge.

PER CURIAM:




       *
         Honorable Willis B. Hunt, Jr., U.S. District Judge for the Northern District of Georgia,
sitting by designation.

                                               3
      Calvin M. Boyd and Pinkney Clowers III appeal their convictions and sentences

on various charges relating to a crack cocaine conspiracy in Macon, Georgia. For the

reasons stated below, we vacate Clowers’ drug conspiracy conviction and sentence

and remand for resentencing; we affirm in all other respects.

                   I. FACTS AND PROCEDURAL HISTORY

      After the breakup of the Macon, Georgia drug ring of which he was a member,

Pinkney Clowers decided to go into business for himself. In early 1990 Clowers

formed a partnership with Arleigh Carrington, one of the leaders of the old drug ring.

The two bought cocaine powder from suppliers in Atlanta and Miami and “cooked”

the powder into crack for sale. At first Clowers and Carrington sold the crack

themselves; when their profits grew they recruited other people, including Calvin

Boyd, to do the street-level dealing and to commit robberies to finance their drug

operations. In addition to selling crack on the street, Boyd served as the group’s

“enforcer.” In November 1991 Clowers was arrested after a consent search of his

automobile following a traffic stop revealed a revolver, the end of a smoked marijuana

cigarette, a ledger tracking drug transactions, and a bag containing thousands of

dollars in cash. The other members of the group were arrested later.




                                          4
       A grand jury returned a twenty-count indictment against the members of the

conspiracy. Boyd and Clowers were tried jointly,1 and a jury convicted each of them

on (a) one count of conspiring to distribute cocaine base (Count 1) in violation of 21

U.S.C. § 846; (b) one count of conspiring to interfere with commerce by threats or

violence (Count 2) in violation of 18 U.S.C. § 951 (Hobbs Act); and (c) one count of

conspiring to use or carry firearms during/in relation to drug trafficking crimes or

crimes of violence (Count 3) in violation of 18 U.S.C. § 924(c). Clowers also was

convicted on one count of operating a continuing criminal enterprise (CCE) (Count

18), in violation of 21 U.S.C. § 948. Boyd and Clowers filed timely notices of appeal.

       During the pendency of their original appeals, Boyd and Clowers also moved

for new trials. The district court ordered an evidentiary hearing on the motions. At

the time of this activity, Boyd was incarcerated at the United States Prison in

Florence, Colorado. Boyd’s counsel notified him that he would not be permitted to

attend the evidentiary hearing. In response, Boyd filed pro se with this court an

emergency motion to be present at the evidentiary hearing. He also filed a pro se

“Motion to Proceed Pro Se,” claiming that he would have no choice but to represent




       1
       Four other members of the conspiracy either pleaded guilty or were tried separately. Co-
defendant Richard Glover does not appeal his conviction.

                                              5
himself at the evidentiary hearing should we deny his earlier emergency motion. This

court denied both motions.

      During Boyd’s pro se activity with this court, his attorney filed a motion in the

district court to require Boyd’s presence at the evidentiary hearing. The district court

denied this motion, relying in part on its conclusion that no evidence had been

presented which demonstrated that Boyd had any relevant information known only to

him. Boyd then filed with the district court a pro se motion to waive counsel and

proceed pro se at the evidentiary hearing only. The district court held that Boyd had

waived his right to proceed pro se by filing his motion for new trial through counsel,

and alternatively that Boyd improperly sought hybrid representation and was filing the

motion solely for the purpose of evading the court’s denial of his earlier motion to be

present. The district court eventually held the evidentiary hearing without Boyd’s

presence, and denied Boyd and Clowers’ motions for new trial; Boyd and Clowers

appealed from this ruling as well. However, in the interim a panel of this court

already had heard oral argument on Boyd and Clowers’ original appeals. In addition,

the Supreme Court had decided Rutledge v. United States, ___ U.S. ___, 116 S. Ct.

1241 (1996), the holding of which is relevant to Clowers’ appeal. We decided to

rehear Boyd and Clowers’ original appeals along with their new appeals, and ordered

supplemental briefing by the parties on the Rutledge issue.


                                           6
                                  II. ISSUES ON APPEAL

        Boyd and Clowers each raise numerous issues on appeal. We address only

three here:2 (1) whether Boyd’s Fifth and Sixth Amendment rights were violated by

his exclusion from the evidentiary hearing on his motion for new trial; (2) whether the

recent holding in Rutledge v. United States, ___ U.S. ___, 116 S. Ct. 1241 (1996)

requires us to vacate Clowers’ conviction of conspiring to distribute cocaine base or

his CCE conviction; and (3) whether Boyd and Clowers were denied a fair trial due

to statements made by the prosecutor in her closing argument.

                                      III. DISCUSSION

        A.     Boyd’s Exclusion from the Evidentiary Hearing

        Boyd argues that his exclusion from the evidentiary hearing on his motion for

new trial violated his constitutional right of presence. A number of older decisions

squarely address this question, stating that a criminal defendant has no right to be

present at a hearing on a motion for new trial. See, e.g., Council v. Clemmer, 177 F.2d

22, 24-25 (D.C. Cir. 1949); United States v. Lynch, 132 F.2d 111, 113 (3d Cir. 1942);

Alexis v. United States, 129 F. 60, 64-65 (5th Cir. 1904); see also L.S. Rogers,

Annotation, Absence of Convicted Defendant During Hearing or Argument of Motion



        2
         All other issues raised are without merit and do not warrant discussion. See 11TH CIR. R.
36-1.

                                                7
for New Trial or in Arrest of Judgment, 69 A.L.R.2d 835 (1960 & Supp. 1997)

(collecting cases). We write today to address the subject in light of more recent

Supreme Court authority.

       A defendant’s constitutional right to presence largely stems from the

Confrontation Clause of the Sixth Amendment, see, e.g., United States v. Gagnon, 470

U.S. 522, 526, 105 S. Ct. 1482, 1484 (1985), but the Supreme Court also has

recognized that some aspects of this right are protected by due process, see Kentucky

v. Stincer, 482 U.S. 730, 745, 107 S. Ct. 2658, 2667 (1987). For the reasons stated

below, we hold that the district court did not violate Boyd’s Confrontation Clause or

due process rights in denying his request to be present at the evidentiary hearing.3


       3
          Fed R. Crim. P. 43 mandates that a defendant “shall be present at the arraignment, at the
time of the plea, at every stage of the trial including the impaneling of the jury and the return of the
verdict, and at the imposition of sentence.” FED. R. CRIM. P. 43. It is clear that Rule 43 did not
entitle Boyd to attend the evidentiary hearing: The rule does not mention post-trial proceedings; and
in fact the Advisory Committee’s note to the original enactment notes that the principle behind the
rule “does not apply to hearings on motions made prior to or after trial.” FED. R. CRIM. P. 43
advisory committee’s note (1944 Adoption).
         Congress’ intent in enacting Rule 43 was to codify then-existing case law regarding a
criminal defendant’s right to be present, and the rule has been amended over time to reflect changes
in the law. See FED. R. CRIM. P. 43 advisory committee’s note (1944 Adoption, 1974 Amendment,
1977 Enactment, 1995 Amendments). Other circuit courts of appeals have concluded that Rule 43’s
protections are broader than those afforded both by the Sixth Amendment and by due process, and
thus if the rule does not require a defendant’s presence at a given proceeding, neither does the
Constitution. See United States v. Washington, 705 F.2d 489, 497 n.5 (D.C. Cir. 1983); United
States v. Christopher, 700 F.2d 1253, 1262 (9th Cir. 1983); United States v. Alessandrello, 637 F.2d
131, 138 (3d Cir. 1980); United States v. Brown, 571 F.2d 980, 986-87 (6th Cir. 1978); see also Hall
v. Wainwright, 733 F.2d 766, 786 n.3 (11th Cir. 1984) (Hill, J., dissenting) (advancing same
proposition); cf. United States v. Alikpo, 944 F.2d 206, 208 (5th Cir. 1991) (stating that Rule 43
incorporates Confrontation Clause rights; due process not addressed). However, while the reasoning

                                                   8
               1.      Sixth Amendment/Confrontation Clause

       The Supreme Court on numerous occasions has referred to a defendant’s

Confrontation Clause right to be present as a “trial right,” see Stincer, 482 U.S. at 738

n.9, 107 S. Ct. at 2663 n.9 (collecting cases), recognizing that the right is designed to

promote reliability at trial, see, e.g., id. at 737, 107 S. Ct. at 2663. While the

evidentiary hearing may have resulted in a new trial for Boyd, nothing said or done

at the evidentiary hearing could have affected the reliability of Boyd’s original trial,

which had been concluded. The evidentiary hearing had no “direct relationship with

[Boyd’s] trial,” id. at 740, 107 S. Ct. at 2664, and his exclusion from the hearing did

not “interfere[] with his opportunity for effective cross-examination” of the trial

witnesses, see id. As such, Boyd’s exclusion from the hearing did not violate his

Confrontation Clause right to be present.

               2.      Due Process Clause

       In addition to acknowledging a criminal defendant’s Confrontation Clause right

to be present at all stages of his trial, the Supreme Court has recognized a seemingly

broader due process right to be present “at any stage of the criminal proceeding that

is critical to its outcome if his presence would contribute to the fairness of the



behind these decisions is instructive, the issue of the possible overlap between the constitutional
right to be present and that under Rule 43 is not properly before us, and we decline to decide it here.

                                                  9
procedure.” See Stincer, 482 U.S. at 745, 107 S. Ct. at 2667. The evidentiary hearing

in Boyd’s case focused on (a) whether the government had made a deal with Curtis

Francis, a government witness, and (b) whether the government knowingly had

allowed Francis to give allegedly perjured testimony.        Boyd had no personal

knowledge or relevant information regarding either the government’s alleged

negotiations with Francis or the truth of Francis’ testimony. He has made no

argument, except in the form of a conclusory statement, that he could have assisted

either his counsel or the court in a way that would have resulted in a more reliable

hearing. We conclude that Boyd’s presence at the hearing would have been “useless,

or the benefit but a shadow,” Snyder v. Massachusetts, 291 U.S. 97, 108, 54 S. Ct.

330, 333 (1934), and thus his exclusion did not violate his due process rights.

      B.     Clowers’ Conspiracy and CCE Convictions

      Clowers was convicted both of conspiring to distribute cocaine base in violation

of 21 U.S.C. § 846, and of operating a continuing criminal enterprise (CCE) in

violation of 21 U.S.C. § 948. The Supreme Court recently ruled that a § 846 drug

conspiracy is a lesser included offense of operating a CCE when the “in concert”

element of the CCE conviction rests on the same agreement as the “agreement”

underlying the conspiracy conviction. See Rutledge v. United States, ___ U.S. ___,

___, 116 S. Ct. 1241, 1247 (1996). Clowers contends, and the government agrees,


                                         10
that the CCE charged in Count 18 of the indictment rests on the same agreement as

the conspiracy charged in Count 1. Clowers argues that Rutledge requires us to vacate

both of his convictions and sentences, while the government asserts that the

conviction and sentence of the lesser included offense should be vacated.

      Clowers misreads Rutledge, which requires that only “one of the convictions

. . . must be vacated.” Rutledge, ___ U.S. at ___, 116 S. Ct. at 1250-51 (quoting Ball

v. United States, 470 U.S. 856, 864, 105 S. Ct. 1668, 1673 (1987) (per curiam))

(alterations in original omitted). The proper remedy for convictions on both greater

and lesser included offenses is to vacate the conviction and the sentence of the lesser

included offense. See, e.g., United States v. Jones, 918 F.2d 909, 911 (11th Cir. 1990)

(per curiam). Therefore, we vacate Clowers’ conviction on the drug conspiracy

charge (Count 1), vacate his sentences on all counts, and remand for resentencing on

all counts other than Count 1. See United States v. Rosen, 764 F.2d 763, 767 (11th

Cir. 1985) (“Multiple count convictions present the trial judge with the need for a

sentencing scheme which takes into consideration the total offense characteristics of

a defendant's behavior. When that scheme is disrupted because it has incorporated an

illegal sentence, it is appropriate that the entire case be remanded for sentencing.”).

      C.     Prosecutor’s Closing Argument in Rebuttal




                                          11
        Boyd and Clowers both argue that they were denied a fair trial by inflammatory

and prejudicial remarks made by the prosecutor during her closing argument in

rebuttal. The contested remarks are:

                We, right here in this community, in this land, are involved in the
        most pernicious war that we will ever be involved in and it is not Desert
        Storm and it is not Bosnia and it is the second war that has ever been
        fought on our land and it is fought on our streets, it is fought in our
        schools and it has been fought in this Courtroom for the past week, and
        that is the war on drugs. And make no mistake, ladies and gentlemen, it
        is a war. If you doubt that, you look at these guns, you look at Leroy
        Sams who could’ve been killed, you look at Sara Thomas’ children who
        almost died, and you look at the blood of Reginald Bembry, who was a
        victim of that war. And unless we win the war, we will all be doomed.
        These people, as well as everyone listed in that indictment, are the
        enemy and they are the enemy of every man, woman, and child in this
        country because they don’t care what they do. They don’t care [sic] the
        pain and the misery and the hurt and the death that they cause because
        they only want one thing, and that’s money for themselves.
(R.11 at 1215).

        Remarks made in the course of a prosecutor’s closing argument will warrant

reversal if the challenged remarks are (1) improper and (2) prejudicial to a substantial

right of the defendant. See United States v. Blakey, 14 F.3d 1557, 1560 (11th Cir.

1994). As the government admits in its brief, the comments quoted above are

improper. See United States v. Beasley, 2 F.3d 1551, 1560 (11th Cir. 1993) (similar

remarks held improper).4 However, the government argues: (1) that these remarks

        4
         The government points out that Beasley was decided after Boyd and Clowers’ trial. See
Brief for the United States at 43. Implicit in this statement is the argument that the prosecutor in this

                                                  12
did not prejudice Boyd and Clowers’ substantial rights when they are viewed in the

context of the entire record; (2) that the district court’s jury instructions rectified the

erroneous statements; and (3) that any injury to the defendants was harmless in view

of the overwhelming evidence of their guilt. We agree with the government that the

error was harmless, as the evidence of Boyd and Clowers’ guilt was overwhelming.

See, e.g., United States v. Butera, 677 F.2d 1376, 1383 (11th Cir. 1982).

       The fact that we do not reverse the convictions in these cases does not mean that

we condone remarks of this kind. We repeatedly have expressed concern over how

often we are presented with improper prosecutorial comments as grounds for review.

See Butera, 677 F.2d at 1383 (listing cases). As we did in Butera, we encourage the

district courts to be watchful for improper remarks, to give appropriate curative

instructions, and to consider more formal disciplinary action to deter persistent or

flagrant misconduct. See id.

                                     IV. CONCLUSION




case had no notice that her argument might be improper because Beasley had not yet been decided.
However, while the remarks complained of in Beasley were similar to those here, Beasley merely
applied the age-old rule that prosecutorial comments calculated to inflame a jury are improper, see
id. at 1560 & n.24 (citing United States v. Bascaro, 742 F.2d 1335, 1354 (11th Cir. 1984)), and the
remarks at issue here clearly were intended to make the jury angry at Boyd and Clowers.
Prosecutors have a responsibility not only to prosecute cases diligently, but also to refrain from
using improper methods in doing so. See, e.g., Berger v. United States, 295 U.S. 78, 88, 55 S. Ct.
629, 633 (1935).

                                               13
      Clowers’ conviction on the charge of conspiracy to distribute cocaine base, in

violation of 21 U.S.C. § 846 (Count 1) is VACATED; his sentences on all counts are

VACATED, and his case is REMANDED for resentencing on all counts other than

Count 1. The district court is AFFIRMED with respect to all other issues.

      VACATED AND REMANDED IN PART; AFFIRMED IN PART.




                                        14
