                            In the

    United States Court of Appeals
               For the Seventh Circuit

                    December 1, 2015
                         Before


            DIANE P. WOOD, Chief Judge
            RICHARD A. POSNER, Circuit Judge
            JOEL M. FLAUM, Circuit Judge
            FRANK H. EASTERBROOK, Circuit Judge
            MICHAEL S. KANNE, Circuit Judge
            ILANA DIAMOND ROVNER, Circuit Judge
            ANN CLAIRE WILLIAMS, Circuit Judge
            DIANE S. SYKES, Circuit Judge
            DAVID F. HAMILTON, Circuit Judge



Nos. 13-2078 & 13-2982
UNITED STATES OF AMERICA,
                                            Plaintiff-Appellee,

                              v.

TERRANCE DANIELS and DAVEED DEAN,
                                       Defendants-Appellants.
                  ____________________
2                                           Nos. 13-2078 & 13-2982

         Appeals from the United States District Court for the
           Northern District of Illinois, Eastern Division.
          No. 09 CR 446 — Samuel Der-Yeghiayan, Judge.
                     ____________________


                               ORDER
    On October 14, 2015, defendants-appellants filed a peti-
tion for rehearing and for rehearing en banc, and on Novem-
ber 6, 2015, plaintiff-appellee filed an answer to the petition.
A vote of the active members of the court on whether to
grant rehearing en banc was requested and a majority of the
judges have voted to deny the petition.1
    The petition is therefore DENIED.




1Judge Posner, Judge Rovner, and Judge Williams voted to grant the
petition for rehearing en banc.
Nos. 13-2078 & 13-2982                                          3

    WILLIAMS, Circuit Judge, with whom POSNER and ROVNER,
Circuit Judges join, dissenting from denial of rehearing en
banc. “One of the most basic of the rights guaranteed by the
Confrontation Clause [of the Sixth Amendment] is the ac-
cused’s right to be present in the courtroom at every stage of
his trial.” Illinois v. Allen, 397 U.S. 337, 338 (1970). A defend-
ant can lose that right by being disruptive—but only if he is
very disruptive.
    In Allen, the defendant badgered prospective jurors, tore
up defense counsel’s files and threw them on the courtroom
floor, explicitly said that his actions were designed to pre-
vent trial, and (most outrageously) threatened to kill the
judge. Id. at 339–40. Finding that he lost his right to attend
trial, the Court held that while “courts must indulge every
reasonable presumption against the loss of constitutional
rights,” a defendant can be excluded “if, after he has been
warned by the judge that he will be removed if he continues
his disruptive behavior, he nevertheless insists on conduct-
ing himself in a manner so disorderly, disruptive, and disre-
spectful of the court that his trial cannot be carried on with
him in the courtroom.” Id. at 343. In my view, the panel opin-
ion distorts this standard and inverts the presumption, evis-
cerating an important constitutional right.
    Daniels sat silently at 10 of the 13 pretrial hearings he at-
tended; this is not mentioned by the panel. More important-
ly, he did not continue any disruptive behavior, much less be-
havior that was so disruptive that trial could not go on in his
presence. Instead, he annoyed the judge by: filing numerous
documents on his own, despite being represented by a law-
yer; taking frivolous legal positions characteristic of so-called
“sovereign citizens”; and giving long, unintelligible answers
4                                       Nos. 13-2078 & 13-2982

to questions that the judge asked him directly. He was dis-
ruptive one time, by yelling, “Are you denying me my right
to speak?” at the end of a pretrial hearing. The district judge
seized the opportunity and decided to exclude Daniels un-
less he affirmatively promised not to be disruptive at trial.
    So the worst thing Daniels did was yell at the end of a
pretrial hearing. If that justifies his exclusion then Allen’s di-
rective to “indulge every reasonable presumption against
the loss of constitutional rights” is meaningless. See United
States v. Ward, 598 F.3d 1054, 1058 (8th Cir. 2010) (holding it
is an abuse of discretion to exclude a defendant where his
disruptive behavior consists of talking too loudly in the
courtroom during trial); Tatum v. United States, 703 A.2d
1218, 1223–24 (D.C. 1997) (vacating conviction where de-
fendant was excluded based on laughing and nodding his
head in response to witnesses’ answers and clarifying a wit-
ness’s answer for the court reporter); see also Jones v. Murphy,
694 F.3d 225, 238 (2d Cir. 2012) (noting that the defendant
“insisted on speaking personally with the court despite be-
ing represented by counsel and [] persisted in arguing with
the court about its rulings—behavior that, while contentious
and improper, would not in itself warrant the extreme re-
sponse of involuntary exclusion”).
    Aside from the single incident of yelling at a pretrial con-
ference, the conduct mentioned by the panel is entirely irrel-
evant. By filing numerous documents, advancing silly legal
theories, and giving unintelligible answers to the judge’s
questions, Daniels no doubt annoyed the judge more than
the typical criminal defendant. But none of that provides any
basis for finding that trial could not be carried on in his pres-
ence. Importantly, all of Daniels’s conduct took place in pre-
Nos. 13-2078 & 13-2982                                       5

trial hearings and much of it resulted from the judge’s own
decision to ask questions of Daniels directly, even though he
had a lawyer. Of particular note, the panel erred by relying
on Daniels’s refusal to promise that he would not be disrup-
tive. Allen requires courts to indulge every reasonable pre-
sumption against the loss of constitutional rights. 397 U.S. at
343. The presumption is turned on its head if a judge, an-
noyed and sensing potential trouble, can bar a defendant
from trial unless he affirmatively promises (in a manner that
convinces the judge) that he will behave.
   Excluding a defendant from his own criminal trial is
“[d]eplorable.” Allen, 397 U.S. at 347. Because the panel opin-
ion makes it too easy to do so, we should have reheard this
case en banc and corrected the error. I respectfully dissent
from our failure to do so.
