United States v. William Cordova

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 17, 2015 Decided November 24, 2015

No. 11-3034

UNITED STATES OF AMERICA,
APPELLEE

v.

WILLIAM CORDOVA, ALSO KNOWN AS MARIO, ALSO KNOWN AS
CENTINELLA,
APPELLANT

Consolidated with 11-3043, 11-3044

Appeals from the United States District Court
for the District of Columbia
(No. 1:08-cr-00167-1)
(No. 1:08-cr-00167-2)
(No. 1:08-cr-00167-4)

Robert S. Becker, Anthony D. Martin, and Mary E. Davis,
all appointed by the court, argued the causes and filed the
joint briefs for Appellants. Sherlock V. Grigsby entered an
appearance.

Lauren R. Bates, Assistant U.S. Attorney, argued the
cause for Appellee. With her on the brief were Ronald C.
Machen Jr., U.S. Attorney at the time the brief was filed, and
 2
Elizabeth Trosman, Elizabeth H. Danello, Gilberto Guerrero,
Jr., and Nihar Ranjan Mohanty, Assistant U.S. Attorneys.

Before: TATEL, MILLETT, and WILKINS, Circuit Judges.

PER CURIAM: William Cordova, Jose Gutierrez, and
Melvin Sorto appeal their convictions for conspiracy, violent
crimes in aid of racketeering, murder, assault, and federal and
District of Columbia weapons offenses. They raise eight
claims, four of which we address here; the others we address
in a judgment issued contemporaneously with this opinion.
Finding none of the challenges examined herein meritorious,
we affirm as to these issues.

I.

Cordova, Gutierrez, and Sorto (collectively “Appellants”)
belong to Mara Salvatrucha, an international criminal gang
also known as MS-13. All three men are originally from El
Salvador. When Cordova and Gutierrez arrived in the District
of Columbia, they moved in with Misael Esquina-Flores and
his parents, Feliciana Esquina-Flores and Tomas Esquina,
whom they had known in El Salvador. Local MS-13
members treated Cordova and Gutierrez deferentially because
they came from El Salvador. Believing that the local gang
presence was weak, Cordova and Gutierrez actively
encouraged members to commit more violent crimes to
improve MS-13’s status in the local gang hierarchy.

On the evening of July 30, 2006, Cordova and Gutierrez
pulled up next to another car, announced to the three men
inside that they were MS-13 members, ordered the men not to
move, and then opened fire, injuring those inside. None of
the victims died.
 3
On April 22, 2007, Cordova and Gutierrez struck again,
this time joined by Sorto. In retaliation for an attack on MS-
13 by members of a rival gang, the three men trailed the rival
gang members back to their home turf. They then opened fire
on the group, killing Edwin Ventura and severely wounding
Nelson Maldonado.

Later in 2007, Cordova and Gutierrez shot Feliciana
Esquina-Flores while she was waiting for a bus. Although
Feliciana survived the shooting, she is now blind.

Based on these three armed assaults, the government
charged Appellants with conspiracy, violent crimes in aid of
racketeering, murder, assault, and federal and District of
Columbia weapons offenses. A jury convicted Appellants on
all counts.

II.

Cordova, Gutierrez, and Sorto argue that court-imposed
restrictions limiting their personal access to certain discovery
documents deprived them of their Sixth Amendment rights to
effective representation and to assist in their defense.
Because they suffered no plausible prejudice, we reject the
argument.

A.

At a pretrial conference, the District Court ordered the
government to disclose to Appellants every Thursday any
prior statements of witnesses who would be called to testify
the following week. Those prior statements are commonly
referred to as “Jencks Act materials,” 18 U.S.C. § 3500. The
District Court’s order was more favorable to Appellants in
that regard than the Jencks Act’s requirement of disclosure
 4
after a government witness testifies on direct examination, id.
§ 3500(b); see also FED. R. CRIM. P. 26.2.

The District Court subsequently issued a protective order
directing that Appellants could only review the Jencks Act
materials in the physical presence of counsel or, as later
clarified, defense paralegals or investigators. The order
forbade Appellants’ possession of the materials or copies of
them. For some unknown reason, the record contains nothing
at all about the entry of this protective order. There is no
protective order in the record, no notice of its entry on the
docket, no trace of an in-court, on-the-record discussion
concerning the order’s entry, and no written or transcribed
explanation of the bases for the judge’s decision to adopt the
order. All that the record and briefing indicate is that there
was such a protective order and that all parties were aware of
its terms. None of the parties had any explanation for why the
protective order and all material surrounding its entry are
missing from the record.

Midway through the second week of trial, counsel for
Gutierrez asked the court to reconsider the protective order.
Gutierrez, whose English was limited, sought to “have the
Jencks [materials] so that he could study it so that [meetings
with counsel] would go a lot quicker.” Trial Tr. 3 (Nov. 3,
2010, Afternoon Session). His attorney explained that,
“instead of [counsel] translating the documents, [Gutierrez]
would have had a chance to review them and think about
them, and make our meeting[s] shorter and also more
productive.” Id.

The government opposed the request, citing concerns
about security and the safety of witnesses involved in this
prosecution of alleged MS-13 gang members. The
government insisted that, “for those men to have that [Jencks]
 5
information back at the D.C. jail, floating around, free rein,
from inmate to inmate, is a disaster.” Id. at 62.

Gutierrez responded that the protective order could not
rest upon alleged concerns about the identity of witnesses
because that information was already known to Appellants
and could easily be shared with others regardless of any
restrictions on their access to the Jencks Act materials. The
requested modification, Gutierrez’s counsel emphasized, was
only to “get a copy when he leaves here in the evening of the
Jencks material” for upcoming witnesses “so that he could
review those, and . . . we could discuss them.” Id. at 62-63.

The District Court denied Gutierrez’s request “for the
reasons previously articulated” – reasons that, alas, are not
preserved anywhere in the record. Id. at 63.

The next day, after learning that a defense investigator
had previously and mistakenly left some Jencks Act materials
with Sorto at the jail and that Sorto had carried the documents
“back and forth” to trial, id. at 65, the District Court instructed
the Marshals not to permit Appellants to take any papers to or
from the court at any time. Counsel then expressed concern
that this new restriction would prevent Appellants from being
able to keep and review their own notes from the trial or, once
back at the jail, to write down thoughts or questions to bring
to counsel the following day. That led to an in camera
meeting between the District Court, counsel, and the Marshals
Service, during which the parties agreed that:

At the end of each court date, the counsel for the
defendants will collect all papers of whatever kind
that may have been either brought to court or used
between counsel and their client, and keep it in their
possession – counsel’s possession – overnight. With
regard to returning to court the next day, the
 6
defendants will be permitted, if they wish, to make
notations or jot down their thoughts on paper that
they happen to have access to at the prison for the
purposes of follow-up discussions with their counsel
when they return to court whenever the next day the
court is in session.

Trial Tr. 78-79 (Nov. 4, 2010, Afternoon Session). The
District Court reiterated that Appellants would not be
permitted to “leave the court with anything at the end of the
day” and that “under no circumstances shall there be any
additional copies of the discovery that are presented to the
defense that are made for working purpose or for anyone else
to see, nor under any circumstances are [defense paralegals,
investigators, and associates] to provide a copy to the
defendants to keep and take with them back to the jail.” Id. at
79-80.

B.

Under the Sixth Amendment, criminal defendants have a
constitutional right to “be confronted with the witnesses
against [them], . . . and to have the assistance of counsel for
[their] defense.” U.S. CONST. amend. VI. Appellants assert
that the protective order’s restrictions on their access to
Jencks Act materials violated their Sixth Amendment rights
by hampering counsel’s ability to mount, and Appellants’
ability to participate in, an effective defense against the
government’s witnesses. More specifically, Appellants argue
that requiring defense team members to superintend their
review of discovery materials pressured the defense into
either (1) devoting time to sitting with Appellants as they
reviewed papers rather than dedicating that time to other trial
preparations, or (2) cabining the time Appellants had to
review the papers. Either way, Appellants argue, the order
 7
deprived counsel of the full benefit of Appellants’ individual
input on the Jencks Act materials, which could have
contributed important contextual information and
impeachment evidence. Appellants also contend that, had
they been afforded greater access to the Jencks Act materials,
they would have been able to assist their attorneys in
identifying potential credibility issues and new topics for
investigation.

The Federal Rules of Criminal Procedure give district
courts the discretion to enter protective orders (subject always
to the Sixth Amendment’s limitations). “At any time the
court may, for good cause, deny, restrict, or defer discovery or
inspection, or grant other appropriate relief.” FED. R. CRIM.
P. 16(d). Moreover, a “trial court can and should, where
appropriate, place a defendant and his counsel under
enforceable orders against unwarranted disclosure of the
materials which they may be entitled to inspect.” Alderman v.
United States, 394 U.S. 165, 185 (1969). The burden of
showing “good cause” is on the party seeking the order, and
“among the considerations to be taken into account by the
court will be the safety of witnesses and others, a particular
danger of perjury or witness intimidation, [and] the protection
of information vital to national security[.]” FED. R. CRIM. P.
16(d) Advisory Committee’s Note to 1966 Amendment to
Former Subdivision (e); see also 2 CHARLES ALAN WRIGHT &
PETER J. HENNING, FEDERAL PRACTICE AND PROCEDURE
§ 262 (4th ed. 2009).

We ordinarily review a district court’s balancing of those
factors in issuing a protective order for an abuse of discretion.
See United States v. Mejia, 448 F.3d 436, 456 (D.C. Cir.
2006); cf. United States v. Celis, 608 F.3d 818, 829-40 (D.C.
Cir. 2010) (no Sixth Amendment violation where “[t]he
protective order and its management by the district court
 8
reflect an appropriate balancing of interests in the relevant
case-specific context”). But here, the complete dearth of
information in the record regarding the issuance of the
protective order confounds that effort. There is no visible
exercise of discretion or balancing of factors by the District
Court for us to review. Cf. United States v. Williams, 951
F.2d 1287, 1290 (D.C. Cir. 1991) (“The purpose of an appeal
is to review the judgment of the district court, a function we
cannot properly perform when we are left to guess at what it
is we are reviewing.”).

Likewise, in reviewing Appellants’ challenge to the
protective order’s limitations on their access to the Jencks Act
materials, we ordinarily would apply harmless error review if
Appellants had preserved an objection to the order below and
plain error review if they had not. However, the complete
absence of any record of the order’s entry – and thus
necessarily of any objections to it – upends that inquiry. It
would seem less than fair to hold Appellants’ feet to the fire
for not documenting their prior objections to an
undocumented order entered for undocumented reasons.

No matter. Even assuming that entry of the protective
order was an abuse of discretion, there must be some material
prejudice to Appellants to establish either harmless or plain
error. United States v. Olano, 507 U.S. 725, 732 (1993) (to
establish plain error, defendants must show, inter alia, that the
error affected their “substantial rights”); United States v.
Merlos, 8 F.3d 48, 50 (D.C. Cir. 1993) (“[B]oth harmless
error and plain error review require us to determine whether
the error was prejudicial.”); FED. R. CRIM. P. 52(a) & (b)
(same for both harmless error and plain error). The
government has demonstrated beyond a reasonable doubt that
there was no such prejudice here.
 9
To begin with, even though Appellants’ individual use
and access were subject to conditions, the effects of those
limitations were counterbalanced by the District Court’s
decision to afford them four to eight days’ advance receipt of
the materials when the Sixth Amendment and Jencks Act only
require disclosure after the witness has testified. See 18
U.S.C. § 3500; Palermo v. United States, 360 U.S. 343, 353
n.11 (1959) (“The statute as interpreted does not reach any
constitutional barrier.”); see also Scales v. United States, 367
U.S. 203, 257-58 (1961) (“That the procedure set forth in the
[Jencks Act] statute does not violate the Constitution . . . was
assumed by us in Palermo[.]”); United States v. Stanfield, 360
F.3d 1346, 1356-58 (D.C. Cir. 2004) (noting that “the time
allotted for review of Jencks material is often relatively brief,”
and finding no abuse of discretion where district court gave
defense counsel only nine minutes to review “a very thick
stack of papers” after witness’s direct testimony). The
District Court, in other words, built in a window of time that
ameliorated the practical impact of the access conditions.

Moreover, defense counsel had full and unfettered access
to the Jencks materials at all relevant times, and the protective
order did not otherwise limit their ability to discuss the
materials with Appellants or to obtain their input.

The proof that the District Court’s balance did not
prejudice Appellants is in the pudding. The District Court
invited Appellants to ask for extra time or a continuance if
needed to review and investigate the Jencks Act materials.
See Pretrial Conference Tr. 46-47 (October 14, 2010) (after
counsel for Cordova represented that he would “be moving
for a break in the trial” if a “real difficulty in investigating”
arose, District Court said: “That’s fine. And you will get it”);
id. at 47 (District Court indicated that if the defense “need[s]
time to explore it, we will suspend the trial”); id. at 48
 10
(District Court assured defense counsel, “I am not going to let
you be sandbagged”). The record does not indicate that any
Appellant ever expressed a need for that additional time. Nor
– as the government points out – in all the intervening time,
have Appellants identified a single concrete instance in which
their cross-examination or any other aspect of their defense
would have changed if they had been given unconditional
access to the Jencks Act materials. Cf. United States v. Emor,
573 F.3d 778, 785-86 (D.C. Cir. 2009) (any error in
government’s failure to produce potential Jencks Act material
was harmless because defendant failed to show disclosure
would have affected the trial’s outcome); Celis, 608 F.3d at
839-40 (no error in trial court’s refusal to grant defendant
continuances to review Jencks Act materials where the court
adjusted the trial schedule to afford the defense additional
time, defendant did not identify what additional information
she hoped to uncover or how it would have affected the result
at trial, and counsel vigorously and effectively cross-
examined the witness in question). The record thus forecloses
any colorable claim of actual prejudice, and that is fatal to
Appellants’ Sixth Amendment claim.

III.

Cordova, Gutierrez, and Sorto argue that the trial judge
erred when he denied Gutierrez’s motion to recuse himself in
response to an allegedly threatening letter.

A.

Prior to trial, in a search conducted pursuant to a separate
investigation, the government found a letter Gutierrez had
written to an acquaintance named Liliana. The letter asked
Liliana to “help me with the Lady of Sivar to silence everyone
who is against me.” Opp. to Def.’s Recusal Mo. 3. The letter
 11
then listed the judge, the prosecutors, potential witnesses, and
Gutierrez’s codefendants in this case.

Concerned that the letter could constitute a threat, the
government informed the District Court about the letter’s
existence and its plan to investigate further. After reviewing
the letter, the government’s MS-13 expert in El Salvador
opined that the letter’s reference to the “Lady of Sivar” could
be referring to “a shot caller or a program runner from San
Salvador” who would have the authority to order the named
individuals killed. Id. at 4. The government also located
Liliana, who interpreted the letter to mean that Gutierrez
wanted her to send the names to a “witch doctor in El
Salvador who would use magic to determine if one of the
names listed was ‘snitching’ on Gutierrez.” Id. Unable to
afford the witch doctor’s fee, however, Liliana never followed
up.

Gutierrez moved for the trial judge’s recusal on the basis
of the letter. The judge denied the motion, explaining that
given Liliana’s statement and the fact that Gutierrez had
written the letter “well over a year ago,” he had “no basis to
think whatsoever that any of these defendants [were] . . .
intending or trying in any way to be harmful to this Court or
anyone else.” Pretrial Conf. Tr. 50 (Oct. 14, 2010); see also
Trial Tr. 17-18 (Oct. 18, 2010). Therefore, the judge did not
“believe it would affect my conducting of this trial and ruling
on evidence and ruling on Motions in any way.” Pretrial
Conf. Tr. 50 (Oct. 14, 2010). He also rejected any additional
security for himself, his family, or the trial.

When the government later sought to introduce the letter
as evidence of Gutierrez’s consciousness of guilt, the judge
refused to admit it on the ground that it was substantially
more prejudicial than probative under Federal Rule of
 12
Evidence 403’s balancing test. He reasoned that the “total
lack of clarity as to what exactly” Gutierrez’s intent had been
in writing the letter and the consequent “interpretation by
experts” would only confuse the jury. Trial Tr. 17 (Nov. 17,
2010, Morning Session).

B.

The recusal statute, 28 U.S.C. § 455(a), requires that a
judge “disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.” We review a
district court’s denial of a motion to recuse for abuse of
discretion, “appl[ying] an ‘objective’ standard: Recusal is
required when ‘a reasonable and informed observer would
question the judge’s impartiality.’” S.E.C. v. Loving Spirit
Found. Inc., 392 F.3d 486, 493 (D.C. Cir. 2004) (quoting
United States v. Microsoft Corp., 253 F.3d 34, 114 (D.C. Cir.
2001) (en banc) (per curiam)). This standard requires that we
take the perspective of a fully informed third-party observer
who “understand[s] all the relevant facts” and has “examined
the record and the law.” United States v. Holland, 519 F.3d
909, 914 (9th Cir. 2008) (internal quotation marks omitted)
(alteration in original).

This Circuit has never decided a recusal claim based on
an alleged threat against the trial judge. But other circuits
have, and they recognize that even a legitimate threat does not
necessarily require recusal. In re Basciano, 542 F.3d 950,
956 (2d Cir. 2008) (“Although a plot or threat, real or feigned,
may create a situation in which a judge must recuse himself,
recusal is not ordinarily or routinely required. Even where a
threat is serious . . . a judge may appropriately decline to
recuse himself, at least in some circumstances.” (internal
citations omitted)); United States v. Gamboa, 439 F.3d 796,
817 (8th Cir. 2006), abrogated on other grounds by United
 13
States v. O’Brien, 560 U.S. 218 (2010) (“While a defendant’s
threat against a judge may in some cases raise a sufficient
question concerning bias on the part of that judge, recusal is
not automatic on the mere basis of the judge’s knowledge of
the threat.”); United States v. Cooley, 1 F.3d 985, 993-94
(10th Cir. 1993) (noting that “threats or other attempts to
intimidate the judge” “will not ordinarily satisfy the
requirements for disqualification under § 455(a)”). Rather,
the trial judge “must evaluate the threat itself to determine
how much risk there is that it may be carried out and how
much harm there would be if it were” to determine if the
threat would cause a reasonable observer to question the
judge’s impartiality. Holland, 519 F.3d at 914. “If it is a
close case, the balance tips in favor of recusal.” Id. at 912.

Our sister circuits have identified several helpful factors
to determine whether the trial judge should have recused
himself. The Ninth Circuit listed three in United States v.
Holland: (1) “[t]he defendant’s capacity to carry out the
threat,” including whether the defendant has taken “concrete
steps” or has accomplices; (2) “[t]he defendant’s demeanor
and the context of the threat,” including whether the
defendant was “serious in carrying out the threat”; and (3)
whether the “perceived purpose of the threat” was to “force
recusal and manipulate the judicial system.” Id. at 914-15.
Under the third factor, receipt of a threat from an
“extrajudicial source” decreases the risk that the defendant is
attempting to manipulate the process and accordingly “has a
higher potential for generating a situation where the judge’s
impartiality might reasonably be questioned.” United States
v. Greenspan, 26 F.3d 1001, 1006-07 (10th Cir. 1994) (citing
Liteky v. United States, 510 U.S. 540 (1994)). The Second
and Tenth Circuits have identified a fourth factor: whether the
threat resulted in any conduct by the court other than matter-
of-course judicial rulings that could be viewed as prejudicial
 14
toward the defendant. See id. (reasoning that the district
court’s decision to accelerate sentencing and its refusal to
grant a continuance of the sentencing hearing “could have
contributed to an appearance that the trial court was
prejudiced against Greenspan” after receiving a death threat,
as such measures made it “obvious[] [that the judge] took the
threat very seriously”); Basciano, 542 F.3d at 957 (finding no
error in refusal to recuse in part because the court did nothing,
other than ruling against the defendant, that would “reveal
partiality”). Underlying several of these factors is an
understanding that the judge’s subjective response to an
alleged threat is relevant to our determination of whether an
independent observer would expect the threat to impact the
court’s rulings. See Greenspan, 26 F.3d at 1006-07.

Here, Appellants argue that the judge’s refusal to recuse
“violated the spirit, if not the requirements of [Section]
455(a)” because (1) he continued to enforce the protective
order, which implied that he believed Appellants were
dangerous, despite his conclusion that there was no active
threat against him and (2) the government continued to argue
that the letter was threatening when it sought to introduce the
letter as evidence of Gutierrez’s consciousness of guilt.
Appellants’ Br. 27-32. Applying the factors identified by our
sister circuits, we reject these arguments.

It is true that Gutierrez had the “capacity to carry out” a
threat, as he was a respected member of a violent international
criminal organization with a broad geographic reach. See
Holland, 519 F.3d at 914-15. And because the government
discovered the letter during an unrelated investigation, it is
highly unlikely that Gutierrez intended just to delay or disrupt
the proceedings in this case or force the judge to recuse
himself. See Greenspan, 26 F.3d at 1006-07. Contrary to
Appellants’ contention, however, the judge’s rulings on the
 15
protective order suggest no bias. The government introduced
ample evidence regarding witness safety to support the order,
including witnesses’ testimony that MS-13 members would
kill them for testifying, the seizure from one Appellant’s cell
of jail records containing witnesses’ names and locations
within the jail, and Cordova’s recorded telephone call
threatening witnesses. See Basciano, 542 F.3d at 957; see
also Liteky, 510 U.S. at 556 (Judicial conduct “consist[ing] of
judicial rulings, routine trial administration efforts, and
ordinary admonishments . . . to counsel and to witnesses” that
“neither (1) rel[y] upon knowledge acquired outside such
proceedings nor (2) display[] deep-seated and unequivocal
antagonism that would render fair judgment impossible”
cannot form the basis for recusal.). This evidence stood in
contrast to the stale letter – more than a year old – and
nothing in the record indicates that Gutierrez or anyone else
took affirmative steps toward carrying out any threat. See
Holland, 519 F.3d at 916. Further, although the government
argued that the letter was threatening, the U.S. Marshals and
the judge credited Liliana’s statement that the letter had no
threatening purpose and the judge requested no additional
security for himself, his family, or the trial. See id. (noting
that “[t]he district court did not consider the threats or
Holland’s capacity to carry them out serious enough to refer
the incident to the FBI, nor did he request additional security
from the U.S. Marshal’s service”); cf. In re Nettles, 394 F.3d
1001 (7th Cir. 2005) (holding that recusal was required where
the defendant made an unquestionably legitimate threat to
bomb the Seventh Circuit courthouse).

The circumstances show that a reasonable and informed
observer would not perceive the letter to give rise to a
“significant risk” that the trial judge would “resolve the case
on a basis other than the merits.” Holland, 519 F.3d at 914.
 16
We therefore conclude that he did not abuse his discretion in
declining to recuse himself.

IV.

Cordova, Gutierrez, and Sorto contend that the District
Court’s decision to conduct a preliminary conference on jury
instructions in chambers – outside of their presence –
amounted to a violation of their constitutional right to be
present throughout their trial, and of Federal Rule of Criminal
Procedure 43. Appellants further argue that the District
Court’s failure to create a record deprived them of effective
representation before this Court.

A.

On the morning of November 29, 2010, the District Court
held an in camera, off-the-record conference with counsel to
discuss proposed jury instructions. When proceedings
continued on the record later that afternoon, the District Court
summarized what had occurred, noting that the judge and
attorneys had met to review the latest draft of the jury
instructions “and to determine which, if any of them, required
oral argument because of differences of opinion between the
government and the defense with regard to the content of the
instructions as currently constructed.” Trial Tr. 4 (Nov. 29,
2010). The District Court reported that the “overwhelming
majority of the instructions . . . were not controversial and
didn’t require follow-up discussion on the record and
argument,” though he did acknowledge the “fairly sizable”
list of potential instructions that did warrant follow-up and
advocacy on the record, “and that’s why we’re here right
now.” Id. No objection was made to the off-the-record
nature of the proceeding at this time, and the District Court
and parties proceeded to review the disputed instructions on
the record.
 17
Two years after the trial had concluded, appellate counsel
requested a hearing to reconstruct the record of the November
29 in camera conference. During this hearing, the trial court,
trial defense counsel, and the prosecution attempted to
recount exactly what had occurred during the off-the-record
conference, though the recollections were not much more
informative than the District Court’s summary immediately
following the conference. The District Court did reflect upon
the purpose for holding the instruction conference as it did,
explaining that

the Court wanted to get in an informal setting where
we could have a quick exchange back and forth, try
to determine where there would be objections and
where there wouldn’t. And where there would be
objections, then we would obviously come in to
court and they would be voiced on the record and
argued on the record; both sides could present their
arguments.

Status Conf. Tr. 29 (Feb. 6, 2013). Counsel for the
government agreed with the District Court’s recollection that
“a lot of it was boilerplate” and without objection, id. at 30,
but also noted that where there were substantive exchanges
“we came back into the courtroom and we did it all over again
so that there was no misunderstanding as to . . . what positions
either side had with respect to the . . . jury instructions,” id. at
32.

B.

Because no objection to the in camera discussion was
made – either prior to the conference taking place, or once the
proceedings resumed on the record – we examine this issue
only for plain error. See United States v. Purvis, 706 F.3d
 18
520, 522 (D.C. Cir. 2013). An appellate court may exercise
its discretion to notice a forfeited error if there is (1) error, (2)
that is plain, and (3) that affects substantial rights, but only if
(4) the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.; accord Johnson v.
United States, 520 U.S. 461, 466-67 (1997); see also FED. R.
CRIM. P. 52(b). Appellants have not shown plain error here.

A defendant’s constitutional right to be present during
trial proceedings, while largely rooted in the Sixth
Amendment’s Confrontation Clause, is protected by the Due
Process Clause of the Fifth Amendment in situations where
the defendant is not actually confronting a witness or
evidence against him. United States v. Gagnon, 470 U.S. 522,
526 (1985) (per curiam). A defendant has a due process right
to be present “whenever his presence has a relation,
reasonably substantial, to the fullness of his opportunity to
defend against the charge.” Snyder v. Massachusetts, 291
U.S. 97, 105-06 (1934), overruled in part on other grounds by
Malloy v. Hogan, 378 U.S. 1 (1964); accord Gagnon, 470
U.S. at 526. Indeed, this Court has recognized that “due
process clearly guarantees that the defendant be allowed to be
present ‘to the extent that a fair and just hearing would be
thwarted by his absence.’” United States v. Gordon, 829 F.2d
119, 123 (D.C. Cir. 1987) (quoting Snyder, 291 U.S. at 108);
see also Kentucky v. Stincer, 482 U.S. 730, 745 (1987) (“[A]
defendant is guaranteed the right to be present at any stage of
the criminal proceeding that is critical to its outcome if his
presence would contribute to the fairness of the procedure.”);
Gagnon, 470 U.S. at 526; Faretta v. California, 422 U.S. 806,
819 n.15 (1975) (“[A]n accused has a right to be present at all
stages of the trial where his absence might frustrate the
fairness of the proceedings.”). But, as the Supreme Court
noted in Snyder, the right to be present is guaranteed only to
the extent that a fair and just hearing would be thwarted by a
 19
defendant’s absence, “and to that extent only.” Snyder, 291
U.S. at 108 (emphasis added). There is no guaranteed right to
presence “‘when presence would be useless, or the benefit but
a shadow.’” Gordon, 829 F.2d at 123 (quoting Snyder, 291
U.S. at 106-07).

The right to presence has been codified in Federal Rule
of Criminal Procedure 43. Gordon, 829 F.2d at 123; see also
United States v. Harris, 491 F.3d 440, 452 n.5 (D.C. Cir.
2007). As relevant here, Rule 43 gives a defendant a right to
be present at “every trial stage, including jury impanelment
and the return of the verdict.” FED. R. CRIM. P. 43(a)(2).
Certain exceptions, however, are identified by the Rule.
Notably, the Rule carves out an exception to the presence
requirement when “[t]he proceeding involves only a
conference or hearing on a question of law.” FED. R. CRIM. P.
43(b)(3). In such a case, the defendant need not be present.
Id.

The application of the above authority to the instant case
reveals several reasons why the District Court did not plainly
err by holding its preliminary jury instruction conference
outside the presence of Appellants.

First, there was no plain error under the Due Process
Clause. Appellants have failed to show that a fair and just
hearing was thwarted by their absence from the preliminary
jury instruction conference. See Gordon, 829 F.2d at 123.
Appellants have not pointed to any objection they would have
raised had they been present for the in-chambers conference.
Appellants have not demonstrated that their presence would
have added anything to the discussion, nor have they shown
that their presence would have had a reasonably substantial
relation to their opportunity to defend against the charges
against them.
 20
Second, the preliminary jury instruction conference in
this case falls within the “conference or hearing on a question
of law” exception laid out in Rule 43(b)(3). See United States
v. Perez, 612 F.3d 879, 883 (7th Cir. 2010) (“The content of
jury instructions is a question of law, and as such the jury
instruction conference, assuming arguendo it was a stage of
trial, fell within the . . . exception for a conference or hearing
on a question of law.” (internal quotation marks omitted));
United States v. Rivera, 22 F.3d 430, 438-39 (2d Cir. 1994)
(“The content of the instructions to be given to the jury is
purely a legal matter, and a conference to discuss those
instructions is thus a conference on a question of law at which
a defendant need not be present.” (internal citation omitted));
United States v. Sherman, 821 F.2d 1337, 1339 (9th Cir.
1987) (“We hold that a hearing outside the presence of the
jury concerning the selection of jury instructions is a
‘conference or argument upon a question of law’ . . . .”);
United States v. Graves, 669 F.2d 964, 972 (5th Cir. 1982)
(“A defendant does not have a federal constitutional or
statutory right to attend a conference between the trial court
and counsel concerned with the purely legal matter of
determining what jury instructions the trial court will issue.”);
see also United States v. Jones, 674 F.3d 88, 94 (1st Cir.
2012) (counsel’s meeting with judge to consider a response to
a jury request for re-instruction fell within the Rule 43(b)(3)
exception). As recounted by the District Court and counsel
both immediately after the hearing and two years later during
the hearing to reconstruct the record, it is clear that the
preliminary discussion of jury instructions sought only to
identify agreement or disagreement on the lengthy proposed
instructions, and thus only dealt with detailed and technical
legal questions.

Finally, Appellants have failed to show prejudice in
support of their claim that the off-the-record proceeding
 21
deprived them of effective representation. Ineffective
assistance of counsel can result when the court “interferes in
certain ways with the ability of counsel to make independent
decisions about how to conduct the defense.” Strickland v.
Washington, 466 U.S. 668, 686 (1984) (citing cases). But a
violation of the right to effective representation requires a
defendant to establish prejudice. See United States v.
Gonzalez-Lopez, 548 U.S. 140, 146-47 (2006). In order to
prove prejudice, the defendant must show that there is a
“reasonable probability” – “a probability sufficient to
undermine confidence in the outcome” – “that the result of the
proceeding would have been different” absent the alleged
error. Strickland, 466 U.S. at 694. While Appellants attack
the reasoning behind the District Court’s decision to hold the
preliminary jury instruction conference off the record, they
have not demonstrated any probability that the result of the
proceeding would have been any different had the conference
been held on the record. The absence of prejudice is
particularly apparent here, where the in-chambers conference
did not involve substantive discussion about the content of
instructions, but rather involved only identifying the specific
instructions that were not agreed upon by the parties so that
substantive discussion as to those instructions could occur in
the courtroom (and in Appellants’ presence).

We nonetheless add a word of caution about conducting a
jury instruction conference of this kind off the record. As
Appellants have argued, off-the-record proceedings have the
potential of impeding the ability of the appellate court to do
its job. This case would have been much more complicated if
the attorneys and the District Court had articulated conflicting
recollections of what occurred off the record, or if Appellants
had claimed that the off-the-record discussion strayed from
simply “we object” to substantive discussion of grounds of an
objection that was not later captured on the record, or if
 22
Appellants had claimed that an objection was overruled in
chambers but the ruling was not repeated in precisely the
same manner during the subsequent on-the-record proceeding.
In such a case, we would be presented with the awkward task
of resolving a factual dispute about what happened below, a
difficult exercise for this Court. “There can never be effective
appellate review if the reviewing court is not able to obtain a
clear picture of the precise nature of the alleged errors in the
court below.” Lee v. Habib, 424 F.2d 891, 897 (D.C. Cir.
1970). As the Seventh Circuit has recognized in a case
similar to this one, “[i]t is possible that this procedure could
injure the defense if it obscured the nature of the objections
made and reasons for giving the instructions.” United States
v. Murphy, 768 F.2d 1518, 1536 (7th Cir. 1985). Fortunately,
there was no violation of due process or Rule 43 in this case
because Appellants have identified no prejudice from a
conference that involved only discussions of undisputed
questions of law and for which there was no dispute about
what transpired off-the-record, but the risk that such a dispute
could arise in the future does give us pause.

V.

Cordova, Gutierrez, and Sorto assert that they are entitled
to a new trial because they were denied their right to two
attorneys under 18 U.S.C. § 3005, even after the government
filed notice that it did not intend to seek the death penalty.
We find that the District Court’s dismissal of Appellants’
second appointed attorneys was neither contrary to the statute
nor an abuse of discretion.

A.

Appellants were indicted on June 10, 2008 for, inter alia,
murder in aid of racketeering in violation of 18 U.S.C.
§ 1959(a)(1), which can be punishable by death, id. Within
 23
approximately two months after indictment, each Appellant
was appointed two attorneys.

The government filed notice on February 16, 2010, that it
did not intend to seek the death penalty as to each Appellant.
At a hearing on March 18, 2010, the District Court announced
that, following the government’s notice, it had consulted with
the Federal Public Defender, who had indicated to the court
that “since it is not going to be a death penalty case, the public
is not required to pay for two lawyers for each defendant.”
Status Conf. Tr. 8 (March 18, 2010). As such, the District
Court determined that Appellants, while welcome to have a
second lawyer at their own expense, would only be appointed
one lawyer “at taxpayer expense.” Id. Defense counsel
argued in response that they believed that the status had not
changed because the government was still seeking life
sentences, the case was complex, and the second appointed
lawyer was particularly useful in this case because they had
one Spanish-speaking lawyer and one non-Spanish-speaking
lawyer for each Appellant (all of whom are native Spanish-
speakers). The District Court assured defense counsel that
translation assistance would be made available as needed, and
that, with respect to the second attorney, it was possible – but
not very likely – that he would change his mind.

On May 12, 2010, Sorto sought reconsideration of the
District Court’s decision in the form of a motion to appoint a
second defense attorney pursuant to 18 U.S.C. § 3005. The
District Court denied the request on June 24, 2010.

B.

We review questions of statutory interpretation de novo.
United States v. Wishnefsky, 7 F.3d 254, 256 (D.C. Cir. 1993).
The proper meaning of 18 U.S.C. § 3005 is a matter of first
impression in this Circuit. To the extent that Appellants argue
 24
that, even if not obligated by statute, the District Court should
have exercised discretion to appoint a second attorney, we
review that decision for abuse of discretion. See generally
United States v. Donato, 99 F.3d 426, 429 (D.C. Cir. 1996).

“As always, we begin with the text of the statute.”
United States v. Hite, 769 F.3d 1154, 1160 (D.C. Cir. 2014)
(citing United States v. Ron Pair Enters., Inc., 489 U.S. 235,
241 (1989); United States v. Barnes, 295 F.3d 1354, 1359
(D.C. Cir. 2002)). “Where the language is clear, that is the
end of judicial inquiry ‘in all but the most extraordinary
circumstances.’” United States v. Braxtonbrown-Smith, 278
F.3d 1348, 1352 (D.C. Cir. 2002) (quoting Estate of Cowart v.
Nicklos Drilling Co., 505 U.S. 469, 474 (1992)); see also
Caminetti v. United States, 242 U.S. 470, 485 (1917) (“It is
elementary that the meaning of a statute must, in the first
instance, be sought in the language in which the act is framed,
and if that is plain, and if the law is within the constitutional
authority of the lawmaking body which passed it, the sole
function of the courts is to enforce it according to its terms.”).

With these principles in mind, we turn to the statutory
text at issue here:

Whoever is indicted for treason or other capital
crime shall be allowed to make his full defense by
counsel; and the court before which the defendant is
to be tried, or a judge thereof, shall promptly, upon
the defendant’s request, assign 2 such counsel, of
whom at least 1 shall be learned in the law applicable
to capital cases, and who shall have free access to the
accused at all reasonable hours. In assigning counsel
under this section, the court shall consider the
recommendation of the Federal Public Defender
organization, or, if no such organization exists in the
 25
district, of the Administrative Office of the United
States Courts. The defendant shall be allowed, in his
defense to make any proof that he can produce by
lawful witnesses, and shall have the like process of
the court to compel his witnesses to appear at his
trial, as is usually granted to compel witnesses to
appear on behalf of the prosecution.

18 U.S.C. § 3005.

While a plain reading of the statute supports Appellants’
position that the trigger to initiate and guarantee the right to a
second lawyer is the return of an indictment of a “capital
crime,” see United States v. Boone, 245 F.3d 352, 359-60 (4th
Cir. 2001), such a reading does not answer the question in this
case – that is, whether the statute requires the retention of the
second lawyer after the government has conclusively
determined that it will not seek the death penalty. In this
regard, the statute is silent and therefore ambiguous. See
Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (“Our
first step in interpreting a statute is to determine whether the
language at issue has a plain and unambiguous meaning with
regard to the particular dispute in the case.” (emphasis
added)); see also United States v. Wilson, 290 F.3d 347, 353
(D.C. Cir. 2002) (“In determining the ‘plainness or ambiguity
of statutory language’ we refer to ‘the language itself, the
specific context in which that language is used, and the
broader context of the statute as a whole.’” (quoting
Robinson, 519 U.S. at 341)).

To address this ambiguity, we look to the statutory
purpose. Braxtonbrown-Smith, 278 F.3d at 1352 (“Where the
language is subject to more than one interpretation and the
meaning of Congress is not apparent from the language itself,
the court may be forced to look to the general purpose of
 26
Congress in enacting the statute and to its legislative history
for helpful clues.”). We “must avoid an interpretation that
undermines congressional purpose considered as a whole
when alternative interpretations consistent with the legislative
purpose are available.” Id. (citing United States v. Am.
Trucking Ass’ns, Inc., 310 U.S. 534, 543 (1940)). “[E]ven
when the plain meaning [does] not produce absurd results but
merely an unreasonable one ‘plainly at variance with the
policy of the legislation as a whole’” we must “follow[] that
purpose, rather than the literal words.” Am. Trucking Ass’ns,
310 U.S. at 543 (quoting Ozawa v. United States, 260 U.S.
178, 194 (1922)).

The language used by Congress suggests that the purpose
of the statute would be best met by applying the mandate for
two attorneys only as long as the death penalty is actually
being pursued. The statute demands that at least one of the
two appointed counsel “shall be learned in the law applicable
to capital cases.” 18 U.S.C. § 3005 (emphasis added). The
reference to “capital cases” is significant, because even
though Congress did not define the term in this section,
Congress has repeatedly used “capital case” to mean a
proceeding in which the death penalty has been imposed or a
case in which the death penalty is being or could be sought.
See, e.g., 18 U.S.C. § 3510(b) (right of victim to attend trial
even if she may appear as witness at subsequent sentencing
phase in a death penalty case); 28 U.S.C. § 2266 (special
habeas corpus procedures for cases where a death sentence
was imposed); 42 U.S.C. § 14163 (grants to states to improve
representation in cases where a death sentence may be sought
or has been imposed). The Supreme Court and lower federal
courts have historically used the term “capital case” in the
same manner. See, e.g., Wiggins v. Smith, 539 U.S. 510, 524
(2003); United States v. Parker, 103 F.2d 857, 861-62 (3rd
Cir. 1939). Congress and the courts have imposed procedural
 27
safeguards in cases where the death penalty is at issue that are
distinct from the procedures required in noncapital cases, see,
e.g., O’Dell v. Netherland, 521 U.S. 151, 167 (1997); Gilmore
v. Taylor, 508 U.S. 333, 342 (1993), because “there is a
significant constitutional difference between the death penalty
and lesser punishments,” Beck v. Alabama, 447 U.S. 625, 637
(1980).

Thus, by requiring that at least one attorney be “learned
in the law applicable to capital cases,” Congress indicated that
the purpose of the second lawyer is to provide additional
support and expertise to defendants facing the possibility of
the death penalty, precisely because defending those cases
requires a separate and unique base of knowledge, training,
and experience. Thus understood, the statute reflects
Congress’s policy decision that defendants relying on
appointed counsel need even more help – and more
specialized help – when their life hangs in the balance. If the
death penalty is not on the table for a particular case, such
expertise is no longer absolutely necessary for a fair
proceeding to result. Cf. United States v. Waggoner, 339 F.3d
915, 918 (9th Cir. 2003) (reflecting that “the purpose of the
two-attorney right is to reduce the chance that an innocent
defendant would be put to death because of inadvertence or
errors in judgment of his counsel” (internal quotation marks
omitted)).

Further support for this conclusion is found in the
amendment history of the statute. The provision now found at
18 U.S.C. § 3005 was originally enacted as Section 29 of the
Crimes Act of April 30, 1790, 1 Stat. 118-19. The provision
was included in the Revised Statutes at R.S. § 1034 (1878),
and then placed in the United States Code at 18 U.S.C. § 563
(1925-26). In 1948, changes were made in phraseology, and
the statute was moved from 18 U.S.C. § 563 to 18 U.S.C.
 28
§ 3005, see 62 Stat. 814. Throughout this time, no truly
substantive changes were made, and no discernable
explanatory commentary was ever provided. See Boone, 245
F.3d at 365 (Kiser, J., concurring in part and dissenting in
part) (noting “dearth” of legislative history); In re Sterling-
Suárez, 306 F.3d 1170, 1173 & n.2 (1st Cir. 2002) (stating
that the court can only speculate about changes to the
provision “[a]bsent legislative history”).

In 1994, Congress made the first substantive changes to
the statute as part of the Violent Crime Control and Law
Enforcement Act of 1994. See Pub. L. No. 103-322, § 60026,
108 Stat. 1796, 1982 (1994). It was at this time that Congress
imposed the requirement in Section 3005 that at least one
counsel “learned in the law applicable to capital cases” be
provided to defendants indicted for capital crimes. The
amendment also opted for the word “promptly” in place of the
word “immediately” as to the timing of counsel’s
appointment, and further introduced the requirement that the
court consider counsel recommendations of the Federal Public
Defender organizations or the Administrative Office of the
United States Courts. Concurrent with these changes,
Congress also enacted the Federal Death Penalty Act of the
Violent Crime Control and Law Enforcement Act of 1994.
See Pub. L. No. 103-322, § 60002, 108 Stat. at 1959 (codified
at 18 U.S.C. §§ 3591 to 3598). Among other things, the
Federal Death Penalty Act requires that the government serve
notice on a defendant charged with a death-penalty-eligible
offense indicating whether the government believes that the
death penalty is justified in that particular case. 18 U.S.C.
§ 3593(a). Such notice must be made “a reasonable time
before the trial or before acceptance by the court of a plea of
guilty.” Id. The notice must: (1) state “that the government
believes that the circumstances of the offense are such that, if
the defendant is convicted, a sentence of death is justified . . .
 29
and that the government will seek the sentence of death; and
(2) set[] forth the aggravating factor or factors that the
government, if the defendant is convicted, proposes to prove
as justifying a sentence of death.” Id. The Department of
Justice has established comprehensive death penalty
procedures based on the Federal Death Penalty Act. See U.S.
DEP’T OF JUSTICE, U.S. ATTORNEYS’ MANUAL, § 9-10.020
(April 2014).

This notice requirement underscores the importance of
the “prompt” appointment of the second attorney in death-
penalty-eligible cases – that is, before the government makes
its determination as to whether to seek a death sentence. Even
among courts that disagree as to whether the second attorney
is required after the government announces that it will not
seek the death penalty, there is agreement that “prompt”
means promptly after indictment, and not later. This is
because the goal of the defense in this early stage of the
proceedings is to convince the Attorney General not to seek
the death penalty in the first place. See, e.g., In re Sterling
Suárez, 306 F.3d at 1173 (second attorney learned in the law
of capital punishment “is likely to be especially useful in
making and supporting arguments about mitigating and
aggravating factors, primarily made at the stage when the
Attorney General is determining whether or not to seek the
death penalty and (still later) when the jury is determining the
sentence”); Boone, 245 F.3d at 360 (“[T]he appointment of a
second lawyer helps the defendant during this preliminary
process when that investigation into relevant factors and
presentment of information to the United States Attorney
occurs. Surely, if the government decides not to seek the
death penalty, then the penalty phase is won before trial, and a
second lawyer has proven his worth.”). While the death
penalty is still on the table, there is a specific role for an
attorney “learned in the law applicable to capital cases” to
 30
play in the defense, but once the Attorney General has made a
determination not to seek the death penalty, the requirement
of counsel with such specialized expertise no longer serves
that specific role.

Simply put, when we consider how federal capital
prosecutions work in practice – practices that were established
in 1994 contemporaneously with the amendment requiring at
least one lawyer to be “learned in the law applicable to capital
cases” – it is clear that the congressional purpose is best
served by reading Section 3005 to require two attorneys only
while the defendant faces the death penalty as a potential
option. Once the government has decided not to seek the
death penalty, the trial court retains the discretion to keep or
dismiss the second attorney, but it is not per se error for the
court to choose dismissal.

This conclusion is in accord with the majority of our
sister circuit courts that have considered the issue. See United
States v. Douglas, 525 F.3d 225, 237 (2d Cir. 2008) (“[O]nce
the government has formally informed the court and the
defendant of its intention not to seek the death penalty, the
matter is no longer a capital case within the meaning of
§ 3005 and that section does not require the district court to
continue the appointment of a second attorney.”); Waggoner,
339 F.3d at 917-18 (term “capital crime” did not encompass
the underlying offense when capital punishment could not be
imposed and thus government’s formal and irrevocable
renunciation of intent to seek a conviction for capital murder
justified denial of defendant’s motion for continued
representation by a second court-appointed lawyer); United
States v. Casseus, 282 F.3d 253, 256 (3d Cir. 2002) (any error
in the failure of the district court to act on the defendants’
requests to appoint death-penalty qualified counsel was
harmless where the requests were rendered moot by the
 31
government’s decision not to seek the death penalty); United
States v. Grimes, 142 F.3d 1342, 1347 (11th Cir. 1998)
(defendant was not entitled to two court-appointed lawyers
where the government had stated, on the record prior to trial,
that it would not seek the death penalty; court determined that
at that point the proceeding was transformed from a capital
case into a noncapital case); see also In re Sterling-Suárez,
306 F.3d at 1175 (“[I]n this case there are practical reasons to
treat the case as capital from indictment forward, for purposes
of appointing learned counsel, until it becomes clear that the
death penalty is no longer an option.” (second emphasis
added)). Further support for our conclusion comes from those
opinions interpreting Section 3005 in the wake of Furman v.
Georgia, 408 U.S. 238 (1972). See United States v. Dufur,
648 F.2d 512, 514-15 (9th Cir. 1980) (invalidation of death
penalty provision in 18 U.S.C. § 1111 eliminated defendant’s
right to two attorneys in prosecution for “capital crimes”);
United States v. Shepherd, 576 F.2d 719, 727-29 (7th Cir.
1978) (holding that because “there is no possibility that the
death penalty can be imposed,” this provision granting
defendants a right to two counsel in capital cases was
inapplicable); United States v. Weddell, 567 F.2d 767, 770-71
(8th Cir. 1977) (defendant accused of murder was not entitled
to appointment of second attorney where Furman precluded
imposition of death penalty and case thus lost its capital
nature); but see United States v. Watson, 496 F.2d 1125,
1127-29 (4th Cir. 1973) (offense of first-degree murder still a
“capital crime,” and thus defendant charged with such offense
had absolute statutory right to two attorneys on request,
notwithstanding that under Furman the death penalty could
not constitutionally be imposed).

The only circuit that has come to a different conclusion is
the Fourth Circuit, see Boone, 245 F.3d at 359-60; Watson,
496 F.2d at 1129, but for the reasons stated above, we
 32
respectfully disagree with its conclusion that Section 3005
unambiguously mandates that the second defense attorney
must be retained after the prosecution irrevocably removes the
possibility of a death sentence. For various reasons, such as
the complexity of the issues or the amount of necessary
investigation, it may be prudent for the District Court to allow
the second lawyer to continue to assist with the
representation, but the statute does not require it. Other than
arguing that the District Court was required by statute to
retain two attorneys for each Appellant through trial – a
contention we reject – Appellants have not identified any
basis to find an abuse of discretion by the District Court in
dismissing the second appointed attorneys, and we find none.

VI.

For the foregoing reasons, we affirm the judgment of the
District Court with respect to the four claims addressed
herein.

So ordered.