       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    United States v. Burke                      No. 02-5470
    ELECTRONIC CITATION: 2003 FED App. 0349P (6th Cir.)
                File Name: 03a0349p.06                    FEDERAL PUBLIC DEFENDER FOR THE WESTERN
                                                          DISTRICT OF TENNESSEE, Memphis, Tennessee, for
                                                          Appellant. Frederick H. Godwin, ASSISTANT UNITED
UNITED STATES COURT OF APPEALS                            STATES ATTORNEY, Memphis, Tennessee, for Appellee.
              FOR THE SIXTH CIRCUIT                                           _________________
                _________________
                                                                                  OPINION
 UNITED STATES OF AMERICA , X                                                 _________________
             Plaintiff-Appellee, -                          ROGERS, Circuit Judge. Defendant-Appellant Leon Burke
                                   -
                                   -  No. 02-5470         pleaded guilty to being a felon in possession of a weapon, in
            v.                     -                      violation of 18 U.S.C. § 922(g). He now appeals the
                                    >                     judgment against him and his sentence, arguing that the
                                   ,                      district court erred by conducting a suppression hearing via
 LEON BURKE ,                      -
          Defendant-Appellant. -                          video-conferencing, by applying a four-level sentencing
                                                          enhancement under United States Sentencing Guidelines
                                  N                       (USSG) § 2K2.1(b)(5) for possessing a firearm in connection
       Appeal from the United States District Court       with another felony offense, and by applying a two-level
    for the Western District of Tennessee at Memphis.     enhancement for obstruction of justice, under USSG § 3C1.1.
    No. 01-20191—Robert H. Cleland, District Judge.       Finding no merit to his claims, we affirm.

                Argued: August 6, 2003                                                Facts

          Decided and Filed: October 1, 2003                 In September of 1996, Tennessee state officers were
                                                          investigating members of the Burke family, including two
Before: NORRIS, BATCHELDER, and ROGERS, Circuit           brothers, Leon Burke (“Leon”) and Billy Burke (“Billy”).
                    Judges.                               Together the Burkes operated Burke’s General Auto Repair
                                                          (“Auto Shop”) in Memphis. The officers suspected that they
                  _________________                       were stealing cars, taking them to the Auto Shop, installing in
                                                          the stolen cars the vehicle identification number (“VIN”)
                       COUNSEL                            plates from junked cars the Burkes purchased inexpensively
                                                          at Memphis Police Department (“MPD”) salvage auctions,
ARGUED: J. Patten Brown III, OFFICE OF THE                and reselling the cars to innocent buyers. This process of
FEDERAL PUBLIC DEFENDER FOR THE WESTERN                   exchanging the VIN plates of wrecked cars for those of stolen
DISTRICT OF TENNESSEE, Memphis, Tennessee, for            cars is known as “flipping.”
Appellant. Frederick H. Godwin, ASSISTANT UNITED
STATES ATTORNEY, Memphis, Tennessee, for Appellee.          The officers obtained a search warrant for the Auto Shop,
ON BRIEF: J. Patten Brown III, OFFICE OF THE              located at 3338 Weaver Road, and for the adjacent house that

                            1
No. 02-5470                      United States v. Burke      3    4     United States v. Burke                       No. 02-5470

Leon and Billy lived in, at 3340 Weaver Road. Inside the          should move the car somewhere else because police were
house they found various items that incriminated the brothers.    trying to track down all cars bearing the VINs of cars Leon
Stowed between a refrigerator and the wall was an SKS             had bought at MPD auctions. Jimmy also told the officers
Norinco 7.62 x 39 millimeter military assault rifle, with a 30-   where he and Leon had parked the car, and there they found
round banana clip magazine that held six live rounds. In a        it—stolen and with the VIN flipped, as expected.
metal wall-locker in a bedroom they found a fully loaded .44
magnum Astra revolver, an unloaded Browning .22 caliber             The following year, Tennessee convicted Leon of theft of
rifle, and a 12-gauge Mossberg pump shotgun that contained        property worth over $500, and he was sentenced to two three-
six live rounds in the magazine and one spent round in the        year sentences, to run concurrently. Leon served his sentence
chamber. The shotgun was noteworthy because, like a police        and was released. Federal authorities then indicted Leon for
assault shotgun, its shoulder-stock had been removed and a        being a felon in possession of a weapon, and both Leon and
pistol grip added, so the gun could only be fired like a two-     Billy for conspiring to tamper with VIN numbers and steal
handed pistol. Also in the metal locker were four VIN plates,     cars, and for actually tampering with VINs on several
an envelope that said “84 Olds” and had “Leon Burke”              occasions in violation of 18 U.S.C. § 511(a).
stamped on a corner and contained a fifth VIN plate, ten
applications for certificates of title, and other documents          After the federal proceedings commenced, Leon
having to do with vehicle titles. Elsewhere in the house they     (hereinafter “Burke”) filed a motion to suppress the evidence
found a book explaining how to modify certain guns to make        seized at his house, arguing that the search had been
them fully automatic, and another book describing how to          unconstitutional for various reasons. A hearing was
make functional silencers. Behind the house, in a trailer, the    scheduled, but because there was a severe shortage of judges
officers found four more firearms. And scattered around the       in the Western District of Tennessee just then, it was arranged
property were pieces of cars and stripped car bodies, some of     that Judge Robert Cleland of the Eastern District of Michigan
which were pierced with bullet holes.                             would hear the case as a visiting judge. Prior to the hearing,
                                                                  Judge Cleland notified the parties that he would be presiding
  Four days after the search, Sergeant Farris McCarthy, the       over the case from Michigan, participating in the proceedings
officer who had led the search, drove to the home of Jimmy        via live two-way video, with a two-way audio feed so he
Burke (“Jimmy”), another brother of Leon. McCarthy was            could hear the parties and also talk to them, and everything
interested in Jimmy because Jimmy held the title to a car         else would be normal, with the parties and witnesses together
bearing the VIN of a certain 1980 Chevrolet Impala that Leon      in the court room in Memphis. Burke’s counsel did not object
had bought at a MPD auction, and McCarthy suspected that          until the hearing itself was underway, at which time he argued
Jimmy’s car was actually a stolen 1980 Impala into which          that the use of video violated what was then Rule 26 of the
Leon had installed the auctioned-car’s VIN. McCarthy drove        Federal Rules of Criminal Procedure, which provides that
past Jimmy’s house and saw the Impala in question parked          “[i]n all trials the testimony of witnesses shall be taken orally
out front, but instead of going in by himself he parked down      in open court.” After discussing the objection, Judge Cleland
the street and called for some uniformed officers to support      denied it, and went on to deny the motion to suppress as well.
him. When the uniformed officers arrived, however, the car
was gone. The officers questioned Jimmy, who explained              Burke thereafter entered into a Rule 11 plea agreement
that he had bought the car from Leon, and that Leon had           under which he agreed to plead guilty to the felon in
appeared at his house that morning and told him that he           possession charge, and the government agreed to drop the
No. 02-5470                        United States v. Burke        5    6        United States v. Burke                          No. 02-5470

other charges against him. The agreement additionally                 Cir. 1998). In evaluating Burke’s Rule 26 claim, which he
provided that Burke could appeal the adverse suppression              did timely raise, we review the district court de novo, because
finding.                                                              the claim concerns a matter of law. See United States v.
                                                                      Roman-Zarate, 115 F.3d 778, 781 (10th Cir. 1997)
  Judge Cleland held a sentencing hearing, in person this             (“Interpretation of the Federal Rules of Criminal Procedure is
time. He applied a four-level enhancement pursuant to USSG            a legal issue subject to de novo review.”).
§ 2K2.1(b)(5) for possessing a firearm in connection with
another felony (i.e., in connection with VIN flipping), a two-            A. Rule 43
level enhancement pursuant to USSG § 3C1.1 for obstructing
justice by telling Jimmy to move his car, and a three-level             We begin our analysis with Rule 43, because this is where
reduction for accepting responsibility, but he denied Burke’s         Burke concentrates his argument on appeal, and because it is
request for a downward departure. In the end, he sentenced            under this rule that most cases involving video-conferencing
Burke to the bottom of the Guidelines range: 78 months, plus          have arisen. At the time of Burke’s hearing, Rule 43(a)
three years of supervised release. Burke now appeals.                 provided that “[t]he defendant shall be present at the
                                                                      arraignment, at the time of the plea, at every stage of the trial
                            Analysis                                  including the impaneling of the jury and the return of the
                                                                      verdict, and at the imposition of sentence, except as otherwise
I. The Propriety of Holding the Suppression Hearing Via               provided by this rule.”1 Burke’s argument fails because the
   Video-Conference                                                   rule does not extend to pre-trial motions.
  Burke argues that the judgment in this case should be                  Four Courts of Appeals have held that video-conferencing
reversed and the case remanded for resentencing because the           in the context of a proceeding that is covered by Rule 43 does
district court’s use of video-conferencing violated Rules 26          not satisfy the rule’s requirement that the defendant be
and 43 of the Federal Rules of Criminal Procedure, and                “present.” See United States v. Torres-Palma, 290 F.3d 1244,
because it violated constitutional due process. The arguments         1248 (10th Cir. 2002) (holding that video-conferencing at
are without merit.                                                    sentencing violated Rule 43); United States v. Lawrence, 248
                                                                      F.3d 300, 303–04 (4th Cir. 2001) (same); United States v.
   At the outset, we note that at Burke’s video-conferenced           Navarro, 169 F.3d 228, 235–39 (5th Cir. 1999) (same);
suppression hearing, his counsel objected solely on the basis         Valenzuela-Gonzalez v. United States Dist. Court for Dist. of
of Rule 26, and he did not mention Rule 43 or the
Constitution. Consequently, we review his Rule 43 and
constitutional arguments only for plain error. See Rule 52(b);
                                                                           1
United States v. Crouch, 288 F.3d 907, 909 (6th Cir. 2002).                 This version of Rule 43 was revised in December 200 2, when the
To prevail on these claims, Burke must show “(1) that an              Advisory Committee changed the rules to provide explicitly for video-
error occurred in the district court; (2) that the error was plain,   conferencing in initial appearances and arraignm ents. See Rule 5 (f)
                                                                      (2003) (providing that for initial appearances, “[v]ideo teleconferencing
i.e., obvious or clear; (3) that the error affected his substantial   may be used to conduct an appearance unde r this rule if the defendant
rights; and (4) that this adverse impact seriously affected the       consents”); Rule 1 0(c) (2003) (“Vid eo teleconferencing may b e used to
fairness, integrity or public reputation of his suppression           arraign a defendant if the defendant consents.”); Rule 43(a) (2003)
hearing.” United States v. Koeberlein, 161 F.3d 946, 949 (6th         (“Unless . . . Rule 5, or Rule 1 0 provides otherwise, the defendant must
                                                                      be present . . . .”).
No. 02-5470                               United States v. Burke              7    8       United States v. Burke                               No. 02-5470

Ariz., 915 F.2d 1276, 1280 (9th Cir. 1990) (finding a violation                    hearing could be covered by Rule 43 is if the hearing
where video-conferencing was used in an arraignment, based                         somehow qualified as a “stage of the trial.”3
on a combination of Rule 10’s requirement that arraignments
be held in “open court” and Rule 43’s requirement that the                           The background of Rule 43 makes it clear that a pre-trial
defendant be “present”). But see Navarro, 169 F.3d at                              motion hearing is not a “stage of the trial.” The Advisory
240–41 (Politz, J., dissenting) (arguing that Rule 43 permits                      Committee Notes to the 1944 adoption of Rule 43 explained
sentencing by video-conference).2                                                  that “[t]he first sentence of the rule setting forth the necessity
                                                                                   of the defendant’s presence at arraignment and trial is a
  But Rule 43 does not apply to Burke’s suppression hearing.                       restatement of existing law.” Rule 43, 1944 Advisory
By its text, the rule applies through “every stage of the trial”                   Committee Notes, ¶1 (citing Lewis v. United States, 146 U.S.
beginning with the impaneling of the jury, and it applies to                       370 (1892), and Diaz v. United States, 223 U.S. 442 (1912)).
only two pre-trial events—the arraignment and the plea.                            The Notes added, next, that “[t]his principle does not apply to
Consequently, the only way Burke’s pre-trial suppression                           hearings on motions made prior to or after trial.” Id.
                                                                                   (emphasis added) (citing United States v. Lynch, 132 F.2d 111
                                                                                   (2d Cir. 1942)).
    2
      These decisions rely primarily upon the plain, common-sense,                   An investigation into this “existing law” that the rule
dictionary meaning of “prese nt” as “physical existence in the same place          codified reveals, predictably enough, that “trial” denoted the
as whatever act is done there.” Navarro, 169 F.3d at 236; see also
Torres-Palma, 290 F.3d at 1247 (agreeing with Navarro’s analysis);
                                                                                   time between the impaneling of the jury and the delivery of
Lawrence, 248 F.3d at 303 (“[D]ictionaries confirm that presence means             the sentence. For example, in the Lewis case cited in the
physical prese nce.”); Valenzuela-Gonzalez, 915 F.2d at 128 1 (“[W ]e hold
that the plain language of the rules must be followed.”). These decisions
have also relied on four other factors to support their interpretation: (1)            3
the Confrontation C lause ge nerally requires that a defendant be able                    Burke’s counsel argues that under Rule 43, a defendant has the right
physically to confront the witnesses against him, and Rule 4 3’s                   to be present not only at “every stage of the trial,” as Rule 43 provide s,
protections—mo re extensive than those of the Confrontation Clause—are             but also at every “critical stage” of the judicial pro ceedings taken as a
nonetheless given context by that Clause, see Navarro, 169 F.3d at                 whole. Support for this conclusion is found in dictum in United States v.
236–37; (2) R ule 43 (b)(3 ) notes that the defendant can be physically            Johnson, 859 F.2d 1 289 (7th Cir. 1988). In Johnson, which was a Rule
excluded from “the co urtroo m” for being disrup tive, and for this to             43 case challenging the defendant’s absence from a suppression hearing,
happen it must be the case that the defendant initially had the right to be        the court noted that “[t]he parties do not dispute that an accused person
physically present in “the courtroom,” see id.; Lawrence, 248 F.3d at              has a right to b e present at every critical stage of a criminal proceeding
303–04; (3) various passages from the Advisory Committee Notes to Rule             against him and that a pretrial suppression hearing is a critical stage.” Id.
43 evidence that “presence” means “physical presence,” see Navarro, 169            at 1294. The court, then, assumed that the suppression hearing was a part
F.3d at 237–39 ; and (4) television is not the same thing as physical              of the “trial” for purposes of Rule 43, because it was a “critical stage,” but
presence, see Lawrence, 248 F.3d at 304 (“[V ]irtual reality is rarely a           went on to hold that the exception to Rule 43 for a “ conference or
substitute for actual presence and . . . even in an age of advancing               argument upon a question of law” applied. Id. at 1294–95. W e disagree
techno logy, watching an event on the screen remains less than the                 with the “critical stage” d ictum, ho wever. Though the right to have
com plete equivalent of actually attending it.”). In contrast, Judge Politz,       counsel present depends upon whether a judicial proceeding is a “critical
dissenting on this point in Navarro, argues that “present” for Rule 43             stage,” see, e.g ., Coleman v. Alabama, 399 U.S. 1, 7 (197 0), this standard
purposes should be given the alternative dictionary meaning of “within             does not ap ply to Rule 43 beca use Rule 43 sets out its own, different,
sight or call” and that such a de finition would “giv[e] appropriate effect        standard: the defendant has the right to be present at “every stage of the
to the clear intent of Rule 2 . . . directing us to construe the R ules so as to   trial.” Further, we know o f no other Rule 43 cases that employ the
eliminate unjustifiable expense and delay[.]” 169 F.3d at 240.                     “critical stage” standard.
No. 02-5470                               United States v. Burke              9    10       United States v. Burke                                No. 02-5470

Notes, the Supreme Court reversed a death sentence for                             proceedings held before the jury was impaneled, courts
murder where the defendant had not been allowed to be                              considering such circumstances have consistently held that a
present in court during preliminary challenges to the jury.                        defendant’s absence does not violate Rule 43.6 This is true
See 146 U.S. at 372–73. The Court relied upon and quoted                           even with respect to post-trial evidentiary hearings—in
from Hopt v. Utah, 110 U.S. 574 (1884), which rejected a                           proceedings, that is, where the Rule 43(c)(3) exception for
government argument that the trial did not begin until the jury                    “when the proceeding involves only a conference or hearing
was sworn in, and which instead held that “where the                               upon a question of law” did not apply. 7
indictment is for a felony, the trial commences at least from
the time when the work of empanelling the jury begins.”                               Overall, the authorities are nearly unanimous that Rule 43’s
Hopt, 110 U.S. at 578; see also Lewis, 146 U.S. at 373-74.                         right to be present does not apply to pre-trial suppression
The Lewis case, then, which Rule 43 was built upon,
supported the proposition that the “trial” begins with jury
impaneling. This proposition is strengthened by the other
                                                                                   43(b)(1) [the exception for a defendant’s voluntary absence after ‘trial has
cases that the Notes cite.4                                                        commenced ’], a ‘trial has comm enced’ when the jury selection pro cess
                                                                                   has begun”); United States v. Krout, 56 F.3d 643, 646 (5th Cir. 1995)
  Cases handed down since the enactment of Rule 43 have                            (finding for the same purpose that trial begins with jury selection and
typically construed the word “trial” in a similarly restrictive                    noting that “our research[] does not reveal a contrary interpretation of the
fashion.5 Though none of the cases cited so far dealt with                         Rule”); see also Ganne tt Co. v. DeP asquale, 443 U.S. 368, 394 (1979)
                                                                                   (Burger, C.J., concurring) (“By d efinition, a hearing on a motion before
                                                                                   trial to suppress evidence is not a trial; it is a pretrial hearing.”) (emph asis
                                                                                   omitted).
    4
       See Diaz, 223 U.S. at 45 5 (“In cases of felony our courts, with                 6
substantial acco rd, have regarded [the d efendant’s right to be present] as              See, e.g., United States v. Pepe, 747 F.2d 63 2, 653 (11th Cir. 1984)
extending to every stage of the trial, inclusive of the empaneling of the          (“The first advisory committee note shows clearly that proceedings such
jury and the reception of the verdict, and as being scarcely less important        as [pretrial hearings to determine the admissibility of the evidence the
to the accused than the right of trial itself.” (emp hasis ad ded )); Lynch, 132   government intends to offer at trial] do not fall into the Rule 43 catch-all,
F.2d at 113 (“We do not understand that the right of a defendant to be             ‘every stage of the trial.’”); Taylor v. United States, 385 F.2d 835, 836
present in court throughout his trial has ever been considered to embrace          (8th Cir. 1967) (in which the defendant complained that Rule 43 had been
a right to be present also at the argument of motions prior to trial or            violated because he had not been present at several preliminary motions
subsequent to verd ict.”); see also Sny der v. Ma ssach usetts, 291 U.S. 97,       disposed of prior to commencement of trial, and the court responded that
107 (1934) (noting “the distinction everywhere drawn between                       “it is doubtful whe ther such motions co nstitute a part of defendant’s
proceedings at the trial and those before and after,” and observing that           trial”).
“[m]any motions before trial are heard in the defendant’s absence, and
many motions after trial or in the prosecution of appeals”) (overruled on               7
                                                                                         See, e.g., United States v. Boyd, 131 F.3d 951, 953 n.3 (11th Cir.
other ground s, Malloy v. Hogan, 378 U.S. 1 (19 64)).                        See   1997) (“It is clear that R ule 43 did no t entitle Boyd to attend the [po st-
gen erally Crosby v. United States, 506 U.S. 255, 259 (199 3) (discussing          trial] evidentiary hearing: The rule does not mention post-trial
the law that Rule 43 was meant to restate).                                        proceedings, and in fact the Advisory Committee’s note to the original
    5
                                                                                   enactment notes that the principle behind the rule ‘doe s not ap ply to
      See, e.g., United States v. Bra dford, 237 F.3d 130 6, 13 09– 10 (11th       hearings on motions mad e prio r to or after trial.’”); United States v.
Cir. 2001) (noting that “every other circuit to address the issue” has “held       Gradsky, 434 F.2d 8 80, 882 (5th Cir. 1970 ) (“The Sixth Amendment and
that a trial commences unde r Rule 43 when jury selection begins,” and             Fed.Rules Cr.Proc. 43 do guarantee a defendant the right to be present at
stating that “[a]fter reviewing this precedent from other circuits, we find        the arraignment and ‘at every stage of the trial.’ No appellate court has
their reasoning compelling and conclude that, for purposes of Rule                 extended this right to an evidentiary hearing.”).
No. 02-5470                              United States v. Burke          11     12    United States v. Burke                       No. 02-5470

hearings.8 Consequently, we conclude that Burke did not                         Cir. 2001) (“This Court deems issues presented in a
enjoy Rule 43’s right to be “present,” and his Rule 43                          perfunctory manner on appeal to have been waived.”).
challenge to the use of video-conferencing at those
proceedings must fail. In light of this conclusion, it is                          Even if Burke had not forfeited this argument, we would
unnecessary to proceed to harmless-error review, which                          reject it on the merits. The only support for Burke’s
would otherwise be the next step. See, e.g., United States v.                   contention that the term “open court” precludes video-
Harris, 9 F.3d 493, 499 (6th Cir. 1993) (“As we previously                      conferencing is found in the Ninth Circuit’s
have held, the rule requiring a defendant’s presence at every                   Valenzuela-Gonzalez case, in which the court partially based
stage of the trial must be considered with Rule 52(a) of the                    its no-video-arraignment holding on Rule 10’s provision that
Federal Rules of Criminal Procedure, [which provides] that                      “[a]rraignment shall be conducted in open court.” 915 F.2d at
harmless error is to be disregarded.”).                                         1280 (emphasis added). There is no need for us to consider
                                                                                the persuasiveness of this reasoning, however, because Rule
  B. Rule 26                                                                    26, like Rule 43, applies by its terms to “trials,” and Burke’s
                                                                                suppression hearing was a pre-trial proceeding.
  Rule 26 provides that “[i]n all trials the testimony of
witnesses shall be taken orally in open court, unless otherwise                   C. Constitutional Arguments
provided[.]” We reject Burke’s contention that this rule
applied to his suppression hearing, and that the use of video-                    The use of video-conferencing at Burke’s suppression
conferencing violated the rule’s “open court” requirement.                      hearing, moreover, did not violate Burke’s fair trial right to
                                                                                have the judge “present.” Nor did it violate Burke’s
  Though Burke discussed Rule 26 at the suppression                             constitutional right to be “present” himself at trial. We will
hearing, on appeal he refers to Rule 26 only in his Summary                     consider these arguments in turn.
of Argument, and then only in a conclusory fashion.
See Burke Br. at 16 (“The defendant was not ‘present’ in                           Burke relies upon his constitutional right to “have all
‘open court’ because the district court was absent from the                     critical stages of a criminal trial conducted by a person with
courtroom.”). We find, then, that he has forfeited this ground.                 jurisdiction to preside.” Gomez v. United States, 490 U.S.
See Smoot v. United Transp. Union, 246 F.3d 633, 647 (6th                       858, 876 1989) (invalidating a magistrate’s conduct of jury
                                                                                selection on statutory grounds and reversing the conviction
                                                                                for that structural error). Burke analogizes his situation to
                                                                                that in United States v. Mortimer, 161 F.3d 240 (3d Cir.
    8
       Interestingly, the W right & Miller treatise d isagree s with this       1998), in which the judge was unaccountably absent during
conclusion, suggesting that Rule 43 should apply in such circumstances          counsel’s summation and unable to consider an objection by
desp ite the Ad visory C omm ittee’s 1944 note. See 3A W R IG HT ET AL.,        opposing counsel. Id. at 241. The Third Circuit found that
F EDERAL P RACTICE & P ROCEDURE § 72 1.1; see also United States v. Da lli,     this was a structural error, reasoning that “[a] trial consists of
424 F.2d 45, 48 (2d Cir. 1970) (dictum citing W right & Miller for the          a contest between litigants before a judge. When the judge is
proposition that “a defendant has a right to be presen t at a suppression
hearing where testimony is to be taken,” but finding that the defendant         absent at a ‘critical stage’ the forum is destroyed.” Id.
had waived this right). But the Wright & M iller treatise does not justify
its conclusion, except to state that “it would seem that defendant has a          It is true that courts have held that a judge’s actual absence
right to be present,” and it cites no federal cases besides Da lli that adopt   from certain phases of the trial can constitute a structural
such a holding.
No. 02-5470                       United States v. Burke     13    14   United States v. Burke                     No. 02-5470

error, depriving a defendant of the right to a fair trial. But     against him.” See United States v. Gagnon, 470 U.S. 522,
Burke has failed to cite any cases establishing that this right    526 (1985) (“The constitutional right to presence is rooted to
is violated where the judge is present through video-              a large extent in the Confrontation Clause of the Sixth
conferencing, nor do we know of any. Indeed, United States         Amendment[.]”).        Of the various elements to the
v. Kone, 307 F.3d 430 (6th Cir. 2002), a somewhat more             confrontation right—“physical presence, oath,
closely analogous case that involved the use of a                  cross-examination, and observation of demeanor by the trier
speakerphone, suggests that there was no violation in this         of fact”—physical presence, or a defendant’s right to confront
case. In Kone the trial judge needed to leave immediately for      the witnesses against him face-to-face, forms “the core of the
a judicial conference, so he arranged for another federal          values furthered” by the Clause. Maryland v. Craig, 497 U.S.
judge, in a different city, to handle jury questions that might    836, 846–47 (1990); see also Coy v. Iowa, 487 U.S. 1012,
arise during deliberations and to receive the verdict and poll     1016 (1988) (finding a violation of the right to confront
the jurors via speakerphone. See id. at 441–42. Relying upon       witnesses where a screen was placed between the defendant
a series of Second Circuit cases, this court distinguished         and two child witnesses in a child abuse case). But the
Mortimer and found no structural error, holding that “[t]his is    physical confrontation right is not absolute, and alternatives
not the case of a judge who completely abdicated his judicial      such as video-confrontation may be acceptable where
responsibilities, as in Mortimer, but rather the case of a judge   “necessary to further an important policy.” See Craig, 497
who presided telephonically at important stages of the trial.”     U.S. at 852 (holding that “use of [a] one-way closed circuit
Id. at 443.                                                        television procedure, where necessary to further an important
                                                                   state interest, does not impinge upon the truth-seeking or
  Furthermore, whatever right Burke had to the presence of         symbolic purposes of the Confrontation Clause”); see also
the judge, this right is implicated to a lesser degree in a        United States v. Bell, 464 F.2d 667, 672 (2d Cir. 1972)
suppression hearing than it is in an actual trial. See, e.g.,      (finding no Confrontation Clause violation where a defendant
United States v. Raddatz, 447 U.S. 667, 679 (1980) (“[T]he         was excluded from part of his suppression hearing while a
process due at a suppression hearing may be less demanding         certain witness testified, a witness whose testimony the
and elaborate than the protections accorded the defendant at       government wanted to keep secret). Further, the Supreme
the trial itself.”). In this case the judge could see, hear, and   Court has repeatedly explained that “[t]he right to
speak to the witnesses, and they could see, hear, and speak to     confrontation is basically a trial right.” Barber v. Page, 390
him. Though presence through a television is not the same          U.S. 719, 725 (1968); see also Pennsylvania v. Ritchie, 480
thing as direct physical presence, in this case the difference     U.S. 39, 52-53 (1987) (plurality opinion); California v.
between the two was not of constitutional dimension. The           Green, 399 U.S. 149, 157 (1970).
judge’s presence via video-conferencing did not deprive
Burke of due process by rendering his suppression hearing            In this case, even ignoring the fact that the video-
fundamentally unfair, and it did not constitute a structural       conferencing was at a suppression hearing rather than during
error.                                                             a trial, Burke’s right to confront the witnesses against him
                                                                   physically was not implicated. Unlike in cases where the
  Burke’s companion argument that the Constitution requires        defendant is present only via video-conferencing, Burke was
the defendant to be present is largely based on the Sixth          in the courtroom, physically facing the witnesses, and it was
Amendment Confrontation Clause, which guarantees that the          only the judge who was remote.
accused has the right “to be confronted with the witnesses
No. 02-5470                       United States v. Burke     15    16   United States v. Burke                      No. 02-5470

   The other constitutional foundation of the right of             II. The USSG § 2K2(b)(5) Enhancement for Use of A
defendant to be present is the Fifth Amendment Due Process             Firearm in Connection With Another Felony Offense
clause, and the Supreme Court has held that this clause
guarantees “that a defendant be allowed to be present ‘to the         We review for clear error the district court’s factual
extent that a fair and just hearing would be thwarted by his       findings, and accord “due deference” to the district court’s
absence[.]’” Kentucky v. Stincer, 482 U.S. 730, 745 (1987)         determination that the USSG § 2K2.1(b)(5) enhancement
(quoting Snyder v. Massachusetts, 291 U.S. 97, 108 (1934));        applies. See 18 U.S.C. § 3742(e); United States v. Ennenga,
see also id. at 745–46 (holding that due process guarantees        263 F.3d 499, 502 (6th Cir. 2001). Section 2K2.1(b)(5)
were not violated where a defendant was excluded from a            instructs a court to increase a defendant’s felony offense by
witness competency hearing, and noting that the hearing did        four levels “[i]f the defendant used or possessed any firearm
not concern the witnesses’ substantive testimony); Gagnon,         or ammunition in connection with another felony offense[.]”
470 U.S. at 526 (“[W]e have recognized that [the] right [to be     A court can apply this enhancement “only . . . if the
present] is protected by the Due Process Clause in some            Government establishes by a preponderance of the evidence
situations where the defendant is not actually confronting         that the defendant possessed or used a gun in connection with
witnesses or evidence against him.”); United States v. Brown,      another felony.” United States v. Hardin, 248 F.3d 489, 495
571 F.2d 980, 986 (6th Cir. 1978) (“The Constitution only          (6th Cir. 2001). The section “was created in response to a
grants to the criminal defendant the ‘right to be present at all   concern about the increased risk of violence when firearms
stages of the trial where his absence might frustrate the          are used or possessed during the commission of another
fairness of the proceedings[.]’” (quoting Faretta v. California,   felony.” United States v. McDonald, 165 F.3d 1032, 1037
422 U.S. 806, 819 n. 15 (1975))). Here again, however, the         (6th Cir. 1999) (emphasis omitted).
Court has held that “the process due at a suppression hearing
may be less demanding and elaborate than the protections             In this case, the district court did not err in applying this
accorded the defendant at the trial itself.” Raddatz, 447 U.S.     enhancement. The court found a sufficient connection
at 679.                                                            between the guns in Burke’s house and the VIN-flipping
                                                                   operation based on a number of factors: Burke was running
  It is questionable whether Burke’s right to a fair and just      the VIN-flipping operation from the Auto Shop, which was
hearing would have been thwarted even had he been entirely         located just across the driveway from the house; three of the
excluded from his suppression hearing. See, e.g., Yates v.         guns were found in the same metal cabinet that held detached
United States, 418 F.2d 1228, 1229 (6th Cir. 1969) (“It is . . .   VIN numbers and other VIN-flipping evidence; the metal
claimed that the appellant’s constitutional rights were violated   cabinet was kept in the master bedroom, and people who have
because he was excluded from the hearing to suppress               significant contraband tend to keep such things in their
evidence. We find no merit to this claim.”). Given that            bedrooms; Burke’s VIN-flipping business appears to have
Burke was physically present at the hearing, and it was only       been his chief source of income during this time; some of the
the judge who was in any sense “absent,” Burke’s Fifth             weapons were loaded, and one had been discharged; and the
Amendment right to be present was not violated. On this            Mossberg shotgun had been modified to make it more like an
constitutional ground, as in the other constitutional arguments    assault weapon. On the basis of this evidence, the judge
Burke asserts, the district court committed no error, let alone    concluded that “[i]t is abundantly clear to me far beyond any
plain error.                                                       preponderance of the evidence that these firearms were
No. 02-5470                        United States v. Burke      17    18   United States v. Burke                       No. 02-5470

possessed in connection with another felony offense,                 reliance on the theory in this case and adhere to the text of
specifically, auto theft and VIN-flipping[.]”                        § 2K2.1(b)(5), simply asking whether the government met its
                                                                     burden of showing that “the defendant . . . possessed any
   In making its finding, the judge also found that the “fortress    firearm or ammunition in connection with another felony
theory” applied at least to some extent, even though no drugs        offense,” and remembering that possession can be actual or
were involved here. This theory originated in cases involving        constructive. See Covert, 117 F.3d at 948. The fortress
18 U.S.C. § 924(c)(1), which provision penalizes anyone              theory played a role in relation to § 924(c)(1) because in that
who, “during and in relation to any crime of violence or drug        context there was a leap to be made: using a weapon is
trafficking crime[,] . . . uses or carries a firearm.” The theory    different from merely possessing one, and the theory
was a means for courts to find that a defendant “used” a             permitted courts to infer use from possession. But the theory
firearm, even where there was no evidence that the defendant         is less useful where § 2K2.1(b)(5) is concerned, because
had fired, brandished, or even picked up the weapon. See             § 2K2.1(b)(5) already says “possession,” and there is no leap
United States v. Grant, 545 F.2d 1309, 1312 (2d Cir. 1976)           to be made; rather, the government must merely establish a
(finding “use,” based on the fact that the social club that          factual connection by a preponderance of the evidence.
housed the defendants’ drug operation was a “veritable               Further, in the present case the theory has only introduced
fortress”); see also United States v. Henry, 878 F.2d 937, 944       confusion, inciting the parties to argue about the meaning and
(6th Cir. 1989) (“[I]f it reasonably appears that the firearms       extension of the theory, and diverting attention from the real
found on the premises controlled or owned by a defendant             question, whether § 2K2.1(b)(5) itself has been satisfied.
and in his actual or constructive possession are to be used to
protect the drugs or otherwise facilitate a drug transaction,           Based on the above-noted evidence relied upon by the
then such firearms are used ‘during and in relation to’ a drug       district court, we find that the court did not clearly err in
trafficking crime.” (quoting 18 U.S.C. § 924(c)(1))). Though         concluding that Burke’s possession of the various firearms in
the Supreme Court has curtailed the theory in relation to            his house was connected with his VIN-flipping operation.
§ 924(c)(1) by holding that the term “use” in § 924(c)(1)            Unlike where drugs are involved, there is no widely
means “active employment” and not merely possession, see             acknowledged consensus that VIN-flipping is a dangerous
Bailey v. United States, 516 U.S. 137, 150 (1995), the theory        activity that frequently involves guns. Nevertheless, the guns
is still applicable in § 2K2.1(b)(5) cases because the latter        and the VIN paraphernalia were found in close proximity, the
provision contains the additional word “possessed.” See              illegal operation could have been protected by guns (e.g., to
United States v. Covert, 117 F.3d 940, 947–48 (6th Cir. 1997)        fend off disgruntled car buyers, to deter thieves, and to defend
(holding that the theory continues to apply under                    the operation from the police), and overall there was
§ 2K2.1(b)(5) post-Bailey).                                          sufficient evidence for the district court reasonably to
                                                                     conclude that the guns and the operation were connected.
   A difficulty in applying the theory in the present case is that
it normally comes into play where drugs are involved, and            III. The USSG § 3C1.1 Enhancement for Obstruction of
there were no drugs here. Burke argues that this difficulty               Justice
means that the theory is inoperative, and the enhancement
was therefore improper. The government argues that the                 We also uphold the district court’s sentencing enhancement
theory should be extended into non-drug cases. In our                for obstruction of justice, based on Burke’s having told
opinion, however, the more sensible course is to forgo any           Jimmy to move a car so that the police would not find
No. 02-5470                             United States v. Burke          19   20     United States v. Burke                               No. 02-5470

evidence of VIN-flipping. Insofar as the district court made                 Appendix C, Amend. 581 (setting out the amendment, and
factual determinations in finding that the USSG § 3C1.1                      explaining the rationale). Prior to that time, however, the
enhancement applied to Burke, we review for clear error. See                 circuits adopted one position or the other.
United States v. Jackson-Randolph, 282 F.3d 369, 390 (6th
Cir. 2002). Insofar as the court’s interpretation of the                       This court has tipped its hat to both sides of the split. In
Guidelines was purely legal, we review de novo. See United                   United States v. Horry, 49 F.3d 1178 (6th Cir. 1995), we held
States v. Canestraro, 282 F.3d 427, 431 (6th Cir. 2002).                     that the term “instant offense” in § 3C1.1 required that “the
                                                                             obstruction must occur solely with respect to the offense of
  Though § 3C1.1was substantially amended in 1998, the                       conviction.” Id. at 1180–81. Subsequently, however, in
pre-amendment version of the guideline applied at Burke’s                    United States v. Nesbitt, 90 F.3d 164 (6th Cir. 1996), we held
sentencing. It provided that “[i]f the defendant willfully                   that the enhancement could be upheld if the evidence of
obstructed or impeded, or attempted to obstruct or impede,                   obstruction of justice is “sufficiently related” to the offense of
the administration of justice during the investigation,                      conviction.10
prosecution, or sentencing of the instant offense, increase the
offense level by 2 levels.” USSG § 3C1.1 (1995); see also                      In Nesbitt, the defendant had been convicted of money
id., cmt. n.3 (listing, as an example of obstructive conduct,                laundering for using drug proceeds to purchase a Mercedes
“procuring another person to . . . conceal evidence that is                  Benz and having it titled in the name of his girlfriend. Id. at
material to an official investigation or judicial proceeding”).              168. In a related charge that was dropped pursuant to a plea
In the 1990s, a circuit split developed over whether “instant
offense” referred to obstruction in both the defendant’s case
and in other cases closely related to the defendant’s case—so
that the enhancement would apply if the defendant obstructed                 USSG § 3C1.1 (20 02).
justice in a co-defendant’s case, see, e.g., United States v.
Acuna, 9 F.3d 1442, 1446 (9th Cir. 1993)—or whether                               10
                                                                                     Horry was also limited in United States v. Walker, 119 F.3d 403
“instant offense” meant “offense of conviction,” so that the                 (6th Cir. 1997), a case that the Sentencing Commission would later cite
enhancement would apply only where the obstruction                           as an exa mple of the view adopted in the amended § 3C 1.1. See USSG
specifically related to the offense for which the defendant was              Supp. to Appendix C, Amend. 581. In Walker the defendant, Mr. Walker,
convicted. The Sentencing Commission in 1998 resolved the                    was indicted along with a co-defendant for consp iring to distribute
                                                                             cocaine and for possessing a gun in connection with the conspiracy. 119
split in favor of the former position.9 See USSG Supp. to                    F.3d at 405. W hen they were arrested they were together at W alker’s
                                                                             apartment, with some drugs sitting on the table; Walker pointed a pistol
                                                                             at the officers and, in self-defense, they opened fire. Id. Walker survived,
   9
                                                                             and after he pleaded guilty he falsely testified at his co-defendant’s trial
       The present version provid es that                                    that the co-defendant had nothing to do with the drugs and that Walker
                                                                             had not po inted the gun at the police but instead had d ropped it. Id.
   [i]f (A) the defendant willfully obstructed or impeded, or                W alker received a § 3C1.1 enhancement on the basis of his perjured
   attempted to obstruct or impede, the administration of justice            testimony, and on appeal he argued that his perjury could not have been
   during the course of the investigation, prosecution, or sentencing        during the “instant offense” because he did it after he had pleaded guilty.
   of the instant offense of conviction, and (B) the obstructive             Id. at 406. We rejected this argument, holding that the enhancement can
   conduct related to (i) the defendant’s offense of conviction and          app ly in a separate but related proceeding, and finding that it did apply
   any relevant conduct; or (ii) a closely related offense, increase         because “defendant and code fendant were inextricably related in the
   the offense level by 2 levels.                                            criminal offenses charged against both.” Id. at 406–07.
No. 02-5470                              United States v. Burke          21     22    United States v. Burke                              No. 02-5470

bargain, the defendant was charged with using drug money to                     the same government investigation that eventually resulted in
purchase a different Mercedes that he registered in his aunt’s                  Burke’s plea bargain and conviction. It was clearly related to
name. Id. The district court granted an obstruction                             the VIN-flipping charge that the government dropped against
enhancement, based on the defendant’s alleged perjury (and                      Burke as part of the plea bargain. It was, moreover, related to
his instructions to his aunt to commit perjury) at a civil                      the VIN-flipping charge that Burke’s co-defendant, his
forfeiture proceeding regarding the second Mercedes. Id. On                     brother Billy, was convicted of.12
appeal, the defendant argued that the district court had
violated Horry, because the forfeiture proceeding in which he                     We recognize that the gun possession and VIN-flipping in
committed his obstructive conduct was not his “offense of                       this case are not as obviously related as the criminal money-
conviction.” Id. at 168–69. This court rejected his argument,                   laundering and civil forfeiture cases in Nesbitt. Indeed, the
and distinguished Horry:                                                        district court in this case indicated that it would take the
                                                                                marginal nature of the connection into account in determining
  unlike the Horry case, [the defendant’s] behavior in                          where to sentence within the guidelines range. And we do not
  relation to the [dismissed] charge should not be viewed                       hold that proceedings resulting from the same government
  as collateral conduct irrelevant to the “instant offense.”                    investigation will in all circumstances be related for purposes
  Instead, this conduct was related to the “instant offense”                    of applying the pre-amendment version of § 3C1.1. But here,
  in that it was intended to impede the same government                         as indicated in the previous section, the district court
  investigation that eventually resulted in [the defendant’s]                   reasonably found a connection between the weapons and the
  plea bargain and conviction.                                                  VIN-flipping activity. The weapons charge grew directly out
                                                                                of the VIN-flipping investigation. The guilty plea on the
Id. at 169 (emphasis added).                                                    weapons charge was based in part on dismissal of the VIN-
  The district court in this case properly relied upon our
holding in Nesbitt.11 Burke’s action was intended to impede
                                                                                quoted Horry’s rule—that “the obstruction must occur solely with respect
                                                                                to the offense of conviction,” id. (quoting Ho rry, 49 F.3d at
    11                                                                          118 0–8 1)— this did not mean that we were thereby changing the position
       Burke also argues that a more recent pre-am endment case, United
States v. Koeberlein, 161 F.3d 946 (6th Cir. 1998), reaffirmed Horry’s          we adopted in Nesb itt and Walker, that obstruction applies both to the
narrow “offense of conviction” requirement. In Koeberlein the defendant,        offense of conviction and to related conduct. Rather, Koeberlein merely
Mr. Koeberlein, was convicted for stealing a rented front-end loader. 161       reaffirmed something that we had established prior to Horry, and that we
F.3d at 948. The district court applied the § 3C1.1 enhancem ent because        reaffirmed in Nesb itt: that “related conduct” must be conduct that
Ko eberlein— in incidents that happened prior to the front-end loader           occurred “during the investigation, prosecution, and sentencing of the
theft—had failed to appear in state court for prosecutions of similar thefts,   instant offense[.]” Koeberlein, 161 F.3d at 95 1 (quoting United States v.
and had evaded officers who were pursuing him for one of these thefts.          Crou sore, 1 F.3d 382, 384 (6th Cir. 1993)); see also Nesbitt, 90 F.3d at
See id. at 950–51. Koeberlein appealed, arguing that “although he had           169. Consequently, Koeberlein does not make generally applicable the
missed court dates related to state prosecutions, he did not fail to appear     restrictive “offense of conviction” rule from Horry that subsequent cases
for any proceedings related to the instant offense, which is what the           limited. See Walker, 119 F.3d at 407 (distinguishing Horry, and holding
Sentencing Guideline’s language contemplates.” Id. at 951. We agreed,           that “this circuit has given a broad reading to the ‘instant offense’
finding that the obstructive conduct had to have occurred no sooner than        language”).
the investigation of the offense of co nviction , and since K oeb erlein’s           12
conduct had occurred prior to his front-end loader theft, the district court           This conc lusion is suppo rted b y our d ecision in Walker.    See
erred. See 161 F.3d at 95 1. Though in the cour se of this holding we           footnote 10, supra.
No. 02-5470                      United States v. Burke    23

flipping charge. And a co-defendant was convicted on a VIN-
flipping charge. In the presence of these factors, the holding
of Nesbitt permits our conclusion that the district court
properly applied the obstruction enhancement.
                        Conclusion
  For the foregoing reasons, we AFFIRM the judgment and
the sentence of the district court.
