                             PUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                  v.                               No. 02-4833
JOSEPH WAYNE PRATT,
             Defendant-Appellant.
                                       
           Appeal from the United States District Court
         for the Eastern District of Virginia, at Richmond.
            Richard L. Williams, Senior District Judge.
                            (CR-02-59)

                       Argued: September 26, 2003

                       Decided: December 5, 2003

    Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.



Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Luttig joined. Judge Motz joined in Parts I, II, IV, and
V of the opinion and wrote a separate opinion dissenting from Part
III and from the judgment.


                              COUNSEL

ARGUED: Paul Geoffrey Gill, Assistant Federal Public Defender,
Richmond, Virginia, for Appellant. Sara Elizabeth Flannery, Assistant
United States Attorney, Richmond, Virginia, for Appellee. ON
BRIEF: Frank W. Dunham, Jr., Federal Public Defender, Richmond,
Virginia, for Appellant. Paul J. McNulty, United States Attorney,
Richmond, Virginia, for Appellee.
2                       UNITED STATES v. PRATT
                               OPINION

NIEMEYER, Circuit Judge:

   Joseph Wayne Pratt was convicted on five drug trafficking counts:
one count of conspiracy to traffic in cocaine, three counts of attempt
to possess cocaine with the intent to distribute it, and one count of
using a communication facility — a telephone — to facilitate one of
the attempt violations. The district court sentenced Pratt to 188
months’ imprisonment.

   On appeal, Pratt contends (1) that the evidence was insufficient to
support the convictions on the three attempt counts and that, with
their dismissal, the court must also dismiss the count charging him
with using a communication facility to aid in one of the attempts; (2)
that his right to due process was violated when the district court per-
mitted a government agent to enter the jury room to "cue up" an audi-
otape on the tape recording machine to a portion requested by the
jury; (3) that the district court abused its discretion in admitting audi-
otape transcripts; (4) that the district court abused its discretion in
refusing to grant a multiple-conspiracy instruction; (5) that the district
court abused its discretion in refusing to grant an entrapment instruc-
tion; (6) that Pratt was entitled to a new trial because of the cumula-
tive effect of various allegations of pretrial misconduct by the
government; and (7) that the district court, in sentencing Pratt, errone-
ously enhanced his Criminal History Category by taking into account
two orders of "civil contempt for failure to pay child support."

    For the reasons that follow, we affirm.

                                    I

   Joseph Pratt was involved in a longtime cocaine-distribution con-
spiracy, beginning in the spring of 1996 and continuing to February
2002, which involved Christopher Lamont Hill, Mark Beale, Curtis
Campbell, Larry Kelly, and others. Kelly was arrested, pleaded guilty
in 1999 to drug conspiracy, and was sentenced to 210 months’ impris-
onment. After his sentence, he agreed to cooperate with a law
enforcement investigation in Westmoreland County, Virginia, in
exchange for a promise to have his sentence reduced.
                       UNITED STATES v. PRATT                        3
   During the period of cooperation, Kelly traveled with the co-
conspirators, wearing an audio recording device by which he recorded
conversations with Pratt, beginning in September 1999 and ending in
the spring of 2000. Upon completion of this investigation, a grand
jury indicted Pratt on counts of conspiracy, attempted trafficking on
September 9, 1999, February 10, 2000, and March 30, 2000, and use
of a communication facility to aid and facilitate the March 30 attempt.
A jury convicted Pratt on all counts, and following sentencing, Pratt
filed this appeal.

                                  II

   Pratt’s principal argument on appeal challenges the sufficiency of
evidence on Counts 3, 4, 5, and 6. Counts 3 through 5, which incorpo-
rated the conspiracy allegations of Count 1, alleged additional con-
duct specific to September 9, 1999, February 10, 2000, and March 30,
2000, stating that on each occasion Pratt attempted to possess cocaine
with the intent of distributing it or aiding and abetting such posses-
sion, each in violation of 21 U.S.C. § 846, 21 U.S.C. § 841(a)(1), and
18 U.S.C. § 2. Count 6 charged Pratt with using a telephone in the
commission of the March 30 attempt violation charged in Count 5, in
violation of 21 U.S.C. § 843(b).

   Pratt contends that the "words" that were recorded on the audi-
otapes and offered to prove the offenses alleged in Counts 3 through
5 constituted the only evidence to support his convictions on those
counts and that they are insufficient proof of the crime of attempt. He
asserts:

    There is no evidence that Pratt possessed the specified drugs
    or money necessary to effect the transactions discussed on
    those dates . . . or that he brought together someone [with]
    someone else who actually did have the specified drugs to
    sell in the same place as a prospective purchaser who actu-
    ally had the money to buy. There was therefore insufficient
    proof of the "substantial step" required by law to support
    those convictions.

   An attempt to commit a crime, which is recognized as a crime dis-
tinct from the crime intended by the attempt, punishes conduct that
4                       UNITED STATES v. PRATT
puts in motion events that would, from the defendant’s point of view,
result in the commission of a crime but for some intervening circum-
stance. And 21 U.S.C. § 846 specifically punishes an attempt to vio-
late the drug trafficking laws. While the statute does not define the
elements of an attempt, the crime is nonetheless well understood in
the law, and its elements are not generally disputed.

   To establish that a defendant committed the crime of attempt, the
government must prove that (1) the defendant had the requisite intent
to commit a crime; (2) the defendant undertook a direct act in a
course of conduct planned to culminate in his commission of the
crime; (3) the act was substantial, in that it was strongly corroborative
of the defendant’s criminal purpose; and (4) the act fell short of the
commission of the intended crime due to intervening circumstances.
See, e.g., United States v. Neal, 78 F.3d 901, 906 (4th Cir. 1996);
United States v. Sutton, 961 F.2d 476, 478 (4th Cir. 1992); United
States v. McFadden, 739 F.2d 149, 152 (4th Cir. 1984) (developing
Fourth Circuit’s standard from § 5.01 of the Model Penal Code);
Model Penal Code § 5.01(1)(c); Clark and Marshall’s Treatise on the
Law of Crimes § 4.06 (Melvin F. Wingersky ed., 6th ed. 1958). The
Model Penal Code, from which this court’s formulation was origi-
nally drawn, provides the following list of acts strongly corroborating
a defendant’s criminal purpose:

      (a) lying in wait, searching for or following the contem-
    plated victim of the crime;

       (b) enticing or seeking to entice the contemplated vic-
    tim of the crime to go to the place contemplated for its com-
    mission;

      (c) reconnoitering the place contemplated for the com-
    mission of the crime;

      (d) unlawful entry of a structure, vehicle or enclosure in
    which it is contemplated that the crime will be committed;

      (e) possession of materials to be employed in the com-
    mission of a crime, that are specially designed for such
                        UNITED STATES v. PRATT                          5
     unlawful use or that can serve no lawful purpose of the actor
     under the circumstances;

       (f) possession, collection or fabrication of materials to
     be employed in the commission of the crime, at or near the
     place contemplated for its commission, if such possession,
     collection or fabrication serves no lawful purpose of the
     actor under the circumstances;

       (g) soliciting an innocent agent to engage in conduct
     constituting an element of the crime.

Model Penal Code § 5.01(2).

   Mere preparation for the commission of a crime, however, does not
constitute an attempt to commit a crime. But if preparation comes so
near to the accomplishment of the crime that it becomes probable that
the crime will be committed absent an outside intervening circum-
stance, the preparation may become an attempt. Thus the line between
mere preparation and a substantial act done toward the commission
of a crime is inherently fact-intensive, and it is not always a clear one.
See Neal, 78 F.3d at 906 (citing United States v. Coplon, 185 F.2d
629, 633 (2d Cir. 1950) (Learned Hand, C.J.) ("The decisions are too
numerous to cite, and would not help much anyway, for there is, and
obviously can be, no definite line [between preparation and
attempt]")). To determine whether conduct is preparation or an
attempt, a court must assess how probable it would have been that the
crime would have been committed — at least as perceived by the
defendant — had intervening circumstances not occurred. Applying
this standard, it becomes clear that the direct, substantial act toward
the commission of a crime need not be the last possible act before its
commission. An attempt comprises any substantial act in a progres-
sion of conduct that is meant to culminate in the commission of the
crime intended.

   Thus, while words and discussions would usually be considered
preparations for most crimes, a specific discussion could be so final
in nature that it left little doubt that a crime was intended and would
be committed. In Neal, we held that the discussion leading to an
agreement to engage in crack cocaine transactions, along with corrob-
6                       UNITED STATES v. PRATT
orative evidence, was a substantial step toward the commission of the
drug transaction when the defendant Neal left the discussion with a
final, unconditional agreement that he would obtain the crack cocaine.
78 F.3d at 906. We found it helpful to the finding in that case that
when Neal was arrested, he tried to evade police, and after his arrest,
police discovered drugs and paraphernalia about his mother’s house.
Id. at 907; see also Model Penal Code § 5.01(2)(g) (providing that a
substantial step may be the "solicit[ation] [of] an innocent agent to
engage in conduct constituting an element of the crime").

   We believe that the factual record presented in this case is analo-
gous to the record presented to the court in Neal and supports the
jury’s conviction of Pratt on Counts 3, 4, and 5. In this case, Pratt had
over several years trafficked in cocaine as a buyer, seller, and middle-
man, working with multiple co-conspirators. As the indictment
charged:

    The defendants [including Pratt] and their co-conspirators
    played different roles, took upon themselves different tasks,
    and participated in the affairs of the conspiracy through var-
    ious criminal acts. The defendants made themselves and
    their services available at times throughout the conspiracy
    and would participate in the selected purchases and sales of
    cocaine hydrochloride and cocaine base, commonly known
    as "crack," on an as-needed basis. The defendants and their
    co-conspirators adopted and carried out various roles at vari-
    ous times during the life of the conspiracy.

The government presented evidence to support these allegations.

    In the context of this conspiratorial conduct, Counts 3, 4, and 5
charged Pratt with attempts to function as a middleman in intended
drug transactions on September 9, February 10, and March 30. The
evidence presented by the government included both the evidence
with respect to the general conspiracy and evidence supplied by audi-
otape recordings consisting of discussions and actions taken by Pratt
on September 9, 1999, February 10, 2000, and March 30, 2000, and
it tended to prove Pratt’s function as a middleman in drug trafficking.

   The evidence showed that on September 9, after Kelly and Pratt
reached agreement that Kelly would sell cocaine that Pratt would
                        UNITED STATES v. PRATT                         7
obtain from Lamont Hill, Kelly drove Pratt in Kelly’s car to meet
Mark Beale, the intended purchaser of the drugs. Pratt gave Kelly
instructions, as they drove, on how to get to Beale’s residence. After
they arrived, Pratt introduced Beale to Kelly, and the group confirmed
the price. Specifically, when Beale entered the car and joined Kelly
and Pratt, Beale confirmed the agreement that he would purchase
"Quarter pound. Eighth [of a kilogram] of base" at "thirty-six hundred
[dollars]." Completion of the deal had to await Beale’s obtaining the
cash from his customer. Beale promised to get back by "tomorrow,"
"[t]omorrow evening, for sure." In the context of Pratt’s overall con-
spiratorial conduct, those specific actions establish a "substantial
step" directed toward the commission of a drug transaction in which
Pratt intended to be the middleman, aiding or abetting the transaction.
See 18 U.S.C. § 2; 21 U.S.C. § 841(a)(1); Model Penal Code
§ 5.01(3) (providing that "[a] person, who engages in conduct
designed to aid another to commit a crime that would establish his
complicity . . . if the crime were committed by such other person, is
guilty of an attempt").

   Similarly, on February 10, 2000, Pratt again performed his middle-
man role, presenting to Kelly an offer from Pratt’s cousin to sell Kelly
62 grams of cocaine for $2,000. The evidence showed personal effort
on the part of Pratt to facilitate the deal. When Kelly resisted the high
price, Pratt assured him that with his seller, "He give[s] you extra
every time." Pratt and Kelly eventually agreed that in the proposed
transaction, Kelly would accompany Pratt to meet the seller. Thus,
Pratt presented the offer to Kelly, encouraged him to accept it, and
agreed to the details of the transaction. Again performing as a middle-
man, Pratt took steps toward the intended completion of a drug trans-
action to which he would have been an aider and abettor.

   Finally, on March 30, 2000, Pratt again attempted to bring about
a drug transaction when he called Kelly by telephone to set a final
time of "two o’clock tomorrow," "exactly two o’clock now," for the
transaction. By establishing the specific time for the deal to take place
and passing the information on to Kelly, Pratt not only took substan-
tial steps toward completion of the transaction but completed his
function as middleman in a deal for which, had it transpired, he would
again have been liable for aiding and abetting.
8                       UNITED STATES v. PRATT
   The incidents on September 9, February 10, and March 30 involved
more than mere words or preparation. The evidence is sufficient for
a rational jury to conclude that Pratt was a drug dealer who had been
participating in a longtime drug conspiracy and that, during these
incidents, he functioned as a middleman, intending that drug transac-
tions take place and assisting the conspirators to complete them.
There can be little doubt that, but for outside intervention, the transac-
tions that Pratt intended would have occurred, in violation of 21
U.S.C. § 841, and that Pratt would have been an aider and abettor, in
violation of 18 U.S.C. § 2. The evidence in the record is therefore suf-
ficient to enable a rational jury to find Pratt guilty beyond a reason-
able doubt of criminal attempt, in violation of 21 U.S.C. § 846.

   Because the evidence was sufficient to support the convictions on
Counts 3, 4, and 5, it was also sufficient to support the conviction on
Count 6, charging that the attempt described in Count 5 was facili-
tated by a telephone, as there is no dispute that a telephone was used
in the March 30 incident.

                                   III

   Pratt next contends that his right to due process was violated when
the district court directed a government agent to enter the jury room
and "cue up" an audiotape on the tape recorder to a specific location
requested by the jury without also providing for Pratt’s presence dur-
ing the process.

   During deliberations, the jury sent the district judge a note stating,
"We cannot find the dialogue on tape 10 B. We want to listen to line
91. Can we obtain assistance in finding this section of the tape?" The
district judge directed the tape-recorder technician, a special agent of
the Drug Enforcement Administration, to find the place on the tape
requested by the jury, and he ordered that a court security officer
accompany the technician "to watch him, and he is to have no conver-
sation with the jury and try to influence them in any way." The tech-
nician completed the task within a few minutes, and jury deliberations
resumed.

  Pratt’s counsel, who was in the courtroom but not in the jury room
where the audiotape was cued up, objected.
                        UNITED STATES v. PRATT                          9
   Pratt now contends that ordering the technician and the court secur-
ity officer to the jury room without Pratt’s being present with counsel
violated Federal Rule of Criminal Procedure 43. He argues that this
conduct is more egregious than simply playing an entire tape for the
jury because the technician here was "in effect directing jurors to a
particular piece of tape evidence, and not merely conducting the min-
isterial task of playing an entire tape." Pratt notes that even playing
an entire tape requires a new trial, citing United States v. Freeman,
634 F.2d 1267 (10th Cir. 1980), and our unpublished decision in
United States v. Jayson, No. 93-5879, 1995 WL 234249 (4th Cir. Apr.
21, 1995).

   Rule 43(a) requires that the defendant "be present at . . . every trial
stage, including jury impanelment and the return of the verdict."*
Cases interpreting this rule have held that playing a tape for the jury
outside of the defendant’s presence violates the rule. See United
States v. Brown, 832 F.2d 128 (9th Cir. 1987); Freeman, 634 F.2d at
1267. A violation of Rule 43 is subject to harmless-error review, and
the judgment "may stand only if there is no reasonable possibility that
the practice complained of might have contributed to the conviction."
United States v. Camacho, 955 F.2d 950, 955 (4th Cir. 1992) (citing
United States v. Hasting, 461 U.S. 499, 506 (1983)).

   There is no suggestion in this case that the district court’s order
was not carried out as directed by the court, and we presume therefore
that it was because the court assured compliance through the presence
of the court’s own security officer. Under the court’s order, as
enforced by the court’s security officer, the technician entered a jury
room, cued up the audiotape to the designated spot, and exited, with-
out conversing with the jury or remaining present during its delibera-
tions. In these circumstances, the technician would not have
overheard or affected any deliberations, nor would he have done any-
thing other than the ministerial task of cuing up the audiotape. The
technician’s task might be analogized to replacing a burned out light

  *The form of Rule 43(a) that applied at the time of trial in this case
required that the defendant "be present at . . . every stage of the trial
including the impaneling of the jury and the return of the verdict," but
no change of meaning was effected by the 2002 amendments to this rule.
10                      UNITED STATES v. PRATT
bulb in the jury room or carrying into the jury room a large exhibit
that had been admitted into evidence.

   The incident in this case is unlike a situation where a technician
plays a tape to a jury while the jury listens to the evidence as part of
its deliberations. Cf., e.g., Freeman, 634 F.2d at 1268. In such a cir-
cumstance, the technician would be present during actual delibera-
tions, and the burden on the government to demonstrate harmlessness
would be significantly greater.

   The risk attendant to the practice of sending a person into the jury
room to cue up an audiotape on a tape recorder is sufficiently great
that we do not condone it. The jury’s request undoubtedly could have
been accommodated without raising a Rule 43 question. On the
record before us, however, we conclude that there is no "reasonable
possibility" that the technician’s cuing up the tape and then leaving
the jury room had any effect on the outcome of Pratt’s trial. See
Camacho, 955 F.2d at 955.

                                  IV

   The only other argument advanced by Pratt meriting some discus-
sion is his contention that the district court erred in enhancing his
Criminal History Category during sentencing by taking into account
what Pratt characterizes as "two civil non-support proceedings" in
which Pratt was found in contempt and ordered to serve time in
prison. He argues that because the sentences were for "civil con-
tempt," they should not be included as part of Pratt’s "prior criminal
behavior." U.S.S.G. chap. 4, pt. A, introductory cmt. (2002).

   Section 4A1.1 of the Sentencing Guidelines, which specifies how
a defendant’s prior criminal history is used to determine the defen-
dant’s Criminal History Category, provides that two criminal history
points are to be added for each "prior sentence of imprisonment of at
least sixty days," U.S.S.G. § 4A1.1(b), and sentences of imprisonment
for "contempt of court" and "non-support" qualify as such prior sen-
tences, provided they are for "at least thirty days," id. § 4A1.2(c)(1).

  In this case, the record shows that Pratt appeared before State court
on November 12, 1998, in response to a show cause order for his fail-
                        UNITED STATES v. PRATT                         11
ure to pay child support. The court then established that Pratt had
accumulated an arrearage in child support payments and ordered him
to begin making supplemental support payments to reduce the arrear-
age. Two months later, when Pratt had failed to comply with the
court’s order, the court "sentenced the defendant to serve six months
in jail."

   A few months after Pratt was released from jail, he again accumu-
lated a significant arrearage in nonsupport payments. On August 25,
1999, the State court "ordered the defendant to serve 6 months in
jail," but it also ordered that the sentence could be purged "if the
defendant paid $1,500 to the petitioner." Pratt appealed that order but
did not post the required bond and the case was remanded to the
domestic relations court. At the September 27, 1999 disposition hear-
ing that followed, Pratt did not appear, and the court issued a warrant
to the sheriff to arrest Pratt "for service of the 6-month jail sentence."
Pratt was never apprehended, and the record shows that he "re-
main[ed] on an ‘escape status.’"

   Thus, the record reveals that Pratt was punished twice by a six-
month sentence for a definite period with no mention of any opportu-
nity to purge the sentence. While the second order initially entitled
Pratt to purge the sentence, it was converted into a definite six-month
jail sentence when Pratt failed to appear.

   While Pratt argues that these sentences were for "civil contempt,"
the record belies his claim, indicating that they were six-month sen-
tences entered for punishment and therefore were criminal contempt
sentences. The distinction between a sentence for civil contempt and
a sentence for criminal attempt is well established. A civil contempt
sentence aims to "coerce the defendant to do the thing required,"
whereas a sentence for criminal contempt "operates . . . solely as pun-
ishment for the completed act of disobedience." Gompers v. Bucks
Stove & Range Co., 221 U.S. 418, 442-43 (1911); accord Hicks v.
Feiock, 485 U.S. 624, 631-33 (1988); Carbon Fuel Co. v. United
Mine Workers, 517 F.2d 1348, 1349 (4th Cir. 1975). In Hicks, the
Supreme Court articulated the test for making the distinction: "[I]t is
remedial if ‘the defendant stands committed unless and until he per-
forms the affirmative act required by the court’s order,’ and is puni-
12                      UNITED STATES v. PRATT
tive if ‘the sentence is limited to imprisonment for a definite period.’"
Hicks, 485 U.S. at 632 (quoting Gompers, 221 U.S. at 442).

   It is readily apparent that both six-month sentences imposed on
Pratt for failing to comply with court orders were "for a definite
period" and could not be purged by any affirmative act. The district
court did not err in considering Pratt’s two six-month sentences for
criminal contempt in determining his Criminal History Category.

                                   V

   Pratt’s other arguments do not merit extensive discussion. First, he
objects to the government’s use at trial of transcripts of taped conver-
sations, but he has not demonstrated that the transcripts were in mate-
rial variance with the audiotapes introduced into evidence. Moreover,
the district court gave the jury an instruction that in the event of a
variance between tapes and transcripts, the tapes controlled, thus pro-
tecting against any potential prejudice if a variance did exist. See
United States v. Collazo, 732 F.2d 1200, 1203 (4th Cir. 1984).

   Pratt also contends that the district court abused its discretion in
refusing to grant his requests for instructions on multiple conspiracies
and entrapment. But he has failed to point to evidence that justified
his requests. With respect to whether multiple conspiracies were
shown, the evidence indicates that the three defendants had extensive
drug-related ties to one another and that they had the same objectives,
methods, and products in the same geographical area, thus participat-
ing in a single conspiracy. See United States v. Crockett, 813 F.2d
1310, 1316-17 (4th Cir. 1987). And with respect to entrapment, Pratt
failed to show that the government’s use of Kelly as an informant
induced him to commit a crime that he was previously indisposed to
do. See United States v. DeVore, 423 F.2d 1069, 1071 (4th Cir. 1970).

   Pointing to what he contends were an array of delays, peculiar
strategies, discovery failures, and other pretrial conduct by the gov-
ernment, Pratt argues that the "cumulative effect" of the government’s
activities amounted to vindictive prosecution. We have considered
each of Pratt’s contentions and also taken them in the aggregate, yet
we find that his contentions fall substantially short of what is required
                        UNITED STATES v. PRATT                         13
to carry his burden. See United States v. Williams, 47 F.3d 658, 662-
65 (4th Cir. 1995).

                                   VI

  For the reasons given, we affirm the judgment of the district court.

                                                             AFFIRMED

DIANA GRIBBON MOTZ, Circuit Judge, dissenting:

   Without the consent or presence of Pratt or his counsel, the district
court facilitated a government agent’s access to the jury during its
deliberations. The Government has utterly failed to demonstrate that
this conceded error is harmless. Thus, I must respectfully dissent.

   Unquestionably, the district court erred in directing an important
government witness, unaccompanied by any defense representative,
to enter the jury room absent the defendant’s consent to this proce-
dure. The majority implicitly acknowledges this; the Government
expressly does so. Thus, the only question before us is whether this
error is harmless.

   Because Pratt’s counsel objected at trial to this procedure, it is the
Government’s burden to prove harmlessness beyond a reasonable
doubt. Fed. R. Crim. P. 52(a). That is, the Government must prove
beyond a reasonable doubt that the jury would have returned guilty
verdicts absent this error. See United States v. Camacho, 955 F.2d
950, 955 (4th Cir. 1992). Accordingly, the "judgment may stand only"
if the Government demonstrates that "there is no reasonable possibil-
ity that the practice complained of might have contributed to the con-
viction[s]." Id. I submit that any fair reading of the record in this case
can yield only one conclusion: the Government has failed to carry this
burden.

  The record in this case contains only these facts:

        (1) in response to the jury’s request for assistance with
     the tape, the district court asked the prosecutor if she "ha[d]
     a technician," and the prosecutor responded "[r]ight here";
14                       UNITED STATES v. PRATT
         (2) the district court then ordered someone named Dal-
      las to "go back" with that "technician" to the jury room and
      "watch him and he is to have no conversation with the jury
      and try to influence them in anyway"; and

         (3) after a recess of an unspecified length, the jury
      returned with an unrelated question.

J.A. 300-01. Critically, the record does not reveal: how long the
"technician," a Drug Enforcement Administration agent who served
as the Government’s designated representative and expert witness at
Pratt’s trial, was in the jury room or whether the agent listened to por-
tions of the tape with the jurors in the jury room or whether the agent
ever talked, signaled, smiled, nodded, etc., to the jurors during this ex
parte process.1

   Indeed, the record in this case is so bereft of evidence supporting
the Government’s position that, first the Government in its brief, and
now the majority in its opinion, have had to create facts. Thus, with-
out any support in the record, the Government asserts:

         (1) "[i]mmediately after locating the spot on the audio
      tape, the agent left the jury room before the tape was
      played," Br. of Appellee at 25; see also id. at 18;

        (2) "[t]here was no discussion by jurors or the agent
      while they were in the room," id. at 18; and

         (3) the district court ordered that the recording was not
      "to be played for the jury’s hearing while the agent was in
      the room." Id. at 26.
  1
   The record does not even disclose the identity of Dallas or the techni-
cian. Pratt, however, has waived any objection on this ground by
acknowledging in his appellate brief that Dallas was a court security offi-
cer and the technician was the Government’s designated representative,
DEA Agent Richard Youngbood, who testified as a government expert
at Pratt’s trial.
                        UNITED STATES v. PRATT                         15
The majority adopts, as fact, these assertions, stating "[u]nder the
court’s order, as enforced by the court’s security officer, the techni-
cian entered a jury room, cued up the audiotape to the designated
spot, and exited, without conversing with the jury or remaining pres-
ent during its deliberations." See ante at 9. Indeed, the majority goes
a step beyond adopting the Government’s nonfacts and invents one of
its own, asserting that the court security officer "enforced" the district
court’s order. Ante at 9. Again, no record evidence supports any of
these assertions.

   The majority compounds its erroneous reliance on nonfacts by
determining that it can "presume" that "the district court’s order was
. . . carried out" because purportedly "[t]here is no suggestion" that
it was not. Id. Yet, by contending that the conceded error here "com-
pels reversal," Br. of Appellant at 28, Pratt does "suggest" that "the
district court’s order was not carried out." True, in so arguing, Pratt
offers no evidence of prejudice but, of course, it is not his burden to
do so. In "presuming" Pratt suffered no prejudice, the majority
improperly transfers the Government’s burden of proof to Pratt. Thus,
the majority requires Pratt to prove prejudice, rather than requiring
the Government to prove no prejudice.

   The majority must improperly shift the burden of proof in this
manner to reach its result because the Government did not even
attempt to meet its burden. Faced with defense counsel’s objection to
an error that may have caused "[a]ny number of prejudicial events [to]
have taken place" in the jury room, United States v. Brown, 832 F.2d
128, 130 (9th Cir. 1987), the Government did nothing. It did not
request the district court to conduct a hearing to determine whether
Pratt had been prejudiced by the Government agent’s contact with the
jury, or make any other attempt to establish a record as to what tran-
spired when the agent entered the jury room. The Government did not
even offer an affidavit or declaration from its agent to substantiate its
position that his presence, without any defense representative, caused
Pratt no prejudice.

   To be sure, such measures might have been insufficient to prove,
beyond a reasonable doubt, that the presence of the Government agent
in the jury room did not prejudice Pratt. Other courts have so held in
similar circumstances. See Brown, 832 F.2d at 130 (holding declara-
16                      UNITED STATES v. PRATT
tion of agent "fails to convince us beyond a reasonable doubt that no
prejudicial contact occurred"); United States v. Pittman, 449 F.2d
1284, 1285 (9th Cir. 1971) (holding trial court’s post hoc hearing "to
determine whether appellants had been prejudiced by the Government
agent’s presence in the jury room" insufficient to demonstrate harm-
lessness). But in those cases the Government offered at least some
evidence to support its contention that the error was harmless. Here
the Government offers none.

   In sum, the majority can hold the insidious error in this case harm-
less only by extensively relying on "facts" that lack any evidentiary
support in the record, by "presum[ing]" Pratt suffered no prejudice,
and by relieving the Government of its burden of proof.2 Because the
Government has offered no evidence, let alone proof beyond a rea-
sonable doubt, that "there is no reasonable possibility" that the con-
ceded error "might have contributed to" Pratt’s convictions, we
should vacate those convictions, as we did in Camacho, 955 F.2d at
955.

  2
    My colleagues’ cavalier treatment of the conceded error in this case
(at one point they analogize the error to a technician screwing in a light
bulb, ante at 9-10) may stem from a view that the improper ex parte
presence in the jury room of a Government agent does not give rise to
significant risk of prejudice and will never, therefore, be ground for
reversal absent proof by the defendant of actual prejudice. Such an
approach not only disregards Fed. R. Crim. P. 52(a), it also ignores the
potent risk inherent in "permitting a Government agent," particularly one
who has played an important role in the criminal trial, "to invade the
sanctity of the jury room." Pittman, 449 F.2d at 1285; see also Frank v.
Mangum, 237 U.S. 309, 349 (1915) (Holmes, J., dissenting) (noting the
likelihood of jurors "to be impregnated" by outside influences). My col-
leagues forget that even a slight improper jury contact may prejudice a
defendant, and that "[s]uch contact could be very subtle, such as a nod
at a significant portion of the tape" that was "unintended or even unno-
ticed by the case agent himself." Brown, 832 F.2d at 130. Their failure
to recognize this is particularly troubling here given the weakness of the
Government’s case, i.e., the jury could not reach a verdict as to Pratt’s
codefendant and the evidence offered to sustain Pratt’s attempt convic-
tions barely suffices.
