PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-2170
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UNITED STATES OF AMERICA
v.
JOHN R. JOHNSON,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 09-cr-00501)
District Judge: Honorable Eduardo C. Robreno
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Submitted Under Third Circuit LAR 34.1(a)
April 10, 2012
Before: HARDIMAN, GREENAWAY, JR., and
GREENBERG, Circuit Judges.
(Filed: April 19, 2012)
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Nathan J. Schadler
Robert A. Zauzmer
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Attorneys for Plaintiff-Appellee
Thomas C. Egan, III
621 Swede Street
Norristown, PA 19401-0000
Attorney for Defendant-Appellant
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OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
John Johnson appeals his judgment of conviction and
sentence following a jury trial. Although he raises four
assignments of error, Johnson‘s most significant claim is that the
District Court‘s individual voir dire procedure violated his
constitutional rights and the Federal Rules of Criminal
Procedure. Because we are persuaded by neither Johnson‘s
principal argument nor his ancillary claims, we will affirm the
judgment and sentence of the District Court.
I
On February 3, 2007, police officers from Cheltenham
Township, Pennsylvania, enlisted a confidential informant to
arrange a controlled purchase of cocaine from his usual supplier,
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who was later identified as John Johnson. That evening, Officer
Tom Fahy and the confidential informant purchased a bag of
cocaine from Johnson in the parking lot of a Home Depot. Six
days later, the informant arranged a controlled purchase in
Philadelphia, where officers arrested Johnson as he approached
the informant‘s car. A search of Johnson‘s person yielded $200,
a loaded semi-automatic handgun, two bags of white powder,
and a cell phone associated with the phone number that the
informant had called to arrange the buys. Laboratory testing
later confirmed that the substances recovered during both buys
amounted to 8.76 grams of cocaine.
Johnson was tried before a jury and convicted of cocaine
distribution and possession of cocaine with intent to distribute in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Counts One
and Two), using and carrying a firearm during a drug-trafficking
offense in violation of 18 U.S.C. § 924(c)(1) (Count Three), and
possession of a firearm by a convicted felon in violation of 18
U.S.C. § 922(g)(1) (Count Four). Johnson was later sentenced
to 120 months‘ imprisonment, six years of supervised release, a
$1000 fine, and a $400 special assessment.
Johnson raises four issues on appeal, claiming: (1) the
District Court violated his constitutional rights and Federal Rule
of Criminal Procedure 43 by questioning prospective jurors at
sidebar outside his presence, (2) the Court abused its discretion
in denying his motion to disclose the identity of the confidential
informant, (3) the evidence was insufficient to support his
conviction on Count Three, and (4) the Court erred by imposing
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an upward variance. We evaluate each argument in turn.1
II
During jury selection, the District Court followed the
customary procedure of questioning prospective jurors first in
open court and later individually at sidebar. Johnson remained
at the defense table during the sidebar proceedings, which were
on the record. The District Court ruled on challenges for cause
at sidebar, and thereafter counsel returned to their tables to mark
their peremptory challenges.
Johnson argues that this procedure violated his
constitutional right to be present at all stages of his trial. But
neither Johnson nor his counsel objected to the procedure during
jury selection, even when prompted to do so by the District
Court. The decision not to object to voir dire conducted at
sidebar and outside the presence of the defendant is a tactical
decision similar to the one at issue in Gonzalez v. United States,
553 U.S. 242 (2008). In Gonzalez, the Supreme Court held that
―express consent by counsel suffices to permit a magistrate
judge to preside over jury selection in a felony trial.‖ Id. at 250.
Noting that ―acceptance of a magistrate judge at the jury
selection phase is a tactical decision that is well suited for the
attorney‘s own decision,‖ the Court explained that
[a] magistrate judge‘s or a district judge‘s
particular approach to voir dire both in
substance—the questions asked—and in tone—
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The District Court exercised jurisdiction pursuant to 18
U.S.C. § 3231. We have jurisdiction over this appeal pursuant
to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
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formal or informal—may be relevant in light of
the attorney‘s own approach. The attorney may
decide whether to accept the magistrate judge
based in part on these factors. As with other
tactical decisions, requiring personal, on-the-
record approval from the client could necessitate a
lengthy explanation the client might not
understand at the moment and that might distract
from more pressing matters as the attorney seeks
to prepare the best defense.
Id.
An attorney‘s obligation to consult with his client ―does
not require counsel to obtain the defendant‘s consent to ‗every
tactical decision.‘‖ Florida v. Nixon, 543 U.S. 175, 187 (2004)
(quoting Taylor v. Illinois, 484 U.S. 400, 417–18 (1988)). As
with the choice to proceed before a magistrate judge during voir
dire, the decision to have a criminal defendant present—and in
close proximity to individual jurors—during individual voir dire
conducted at sidebar is tactical and does not require the
defendant‘s express consent. Like counsel in Gonzalez,
Johnson‘s lawyer consented to the jury selection procedures and
thereby waived his client‘s right to challenge them. See United
States v. Sherwood, 98 F.3d 402, 407 (9th Cir. 1996)
(―Sherwood waived his right to be present [during the attorney-
conducted voir dire at sidebar] by failing to indicate to the
district court that he wished to be present at side bar.‖);
Cardinal v. Gorczyk, 81 F.3d 18, 20 (2d Cir. 1996) (―Cardinal
waived his Sixth Amendment right to observe the individual
voir dire by failing to assert that right.‖); see also Nixon, 543
U.S. at 192 (―When counsel informs the defendant of the
strategy counsel believes to be in the defendant‘s best interest
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and the defendant is unresponsive, counsel‘s strategic choice is
not impeded by any blanket rule demanding the defendant‘s
explicit consent.‖).
Because no objection was made to the jury selection
process, Johnson‘s claim of a Rule 43 violation is also waived.
Rule 43 requires that a defendant be present at ―every trial stage,
including jury impanelment.‖ Fed. R. Crim. P. 43(a). The
Supreme Court has held that ―failure by a criminal defendant to
invoke his right to be present under [Rule 43] at a conference
which he knows is taking place between the judge and a juror in
chambers constitutes a valid waiver of that right.‖ United States
v. Gagnon, 470 U.S. 522, 529 (1985). ―The district court need
not get an express ‗on the record‘ waiver from the defendant for
every trial conference which a defendant may have a right to
attend. . . . A defendant knowing of such a discussion must
assert whatever right he may have under Rule 43 to be present.‖
Id. at 528.
Likewise, we have found that ―[a] defendant need not be
warned expressly of his or her rights under Rule 43, nor must a
waiver exist on the record [because] the simple failure to assert
the right constitutes a waiver.‖ United States v. Bertoli, 40 F.3d
1384, 1399 (3d Cir. 1994). As the Courts of Appeals for the
First, Fourth, Eighth, and Ninth Circuits have found, we now
hold that Gagnon applies to voir dire. See, e.g., United States v.
Fernandez-Hernandez, 652 F.3d 56, 65 (1st Cir. 2011) (―The
court‘s questioning of the prospective jurors outside the
presence of the Defendant[] was justified, and, in any event,
[Defendant] waived any right to be present pursuant to Rule 43
by his failure to object at trial.‖); United States v. Ford, 88 F.3d
1350, 1369 (4th Cir. 1996) (―We agree that the defendants had
the right to be present during the bench conferences with the
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jurors, but we conclude that the defendants waived their right by
failing to object before the district court swore in the jury.‖);
Kilmartin v. Dormire, 161 F.3d 1125, 1127 (8th Cir. 1998)
(―[Kilmartin‘s] right to attend and to participate in his trial . . .
was not violated [by his absence from bench conferences with
jurors because] Kilmartin was not excluded from the courtroom,
and his counsel was present . . . [and he] voiced neither a desire
to be present nor an objection to his absence.‖); United States v.
McClendon, 782 F.2d 785, 788–89 (9th Cir. 1986) (―Appellants
[who] did not object to their exclusion from in-chambers
conferences at any time in the proceeding . . . waived their right
to be present at the in-chambers voir dire.‖). Because Gagnon
applies to voir dire, Johnson‘s claim that the District Court
violated Rule 43 fails.
III
Johnson raises three additional issues. As they are
neither difficult to resolve nor of precedential import, we discuss
them only briefly.
A
Johnson claims the District Court abused its discretion in
denying his motion to disclose the identity of the confidential
informant. ―We review the District Court‘s refusal to order
disclosure of [a] confidential informant‘s identity for abuse of
discretion.‖ United States v. Johnson, 302 F.3d 139, 149 (3d
Cir. 2002). While such disclosure is required where ―an
informer‘s identity, or . . . the contents of his communication, is
relevant and helpful to the defense of an accused, or is essential
to a fair determination of a cause,‖ Roviaro v. United States, 353
U.S. 53, 60–61 (1957), the burden to demonstrate the need for
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disclosure rests on the defendant, United States v. Jiles, 658
F.2d 194, 197 (3d Cir. 1981).
Johnson has failed to meet this burden. ―The mere
speculation that an eyewitness may have some evidence helpful
to defendant‘s case is not sufficient to show the specific need
required by Roviaro.‖ Id. Though the confidential informant
was an eyewitness to the two drug transactions, Johnson‘s
suggestion that his testimony would support a mistaken-identity
defense is speculative because Officer Fahy, who was present at
both buys, positively identified Johnson, as did the officers who
observed Johnson approach the informant‘s car on February 9,
2007. Because Johnson did not meet his burden under Roviaro,
the District Court was well within its discretion in denying his
motion.
B
Johnson‘s penultimate argument challenges the
sufficiency of the evidence supporting his conviction for
possession of a firearm in furtherance of a drug-trafficking
offense. When evaluating whether a jury verdict rests on legally
sufficient evidence, we apply ―a particularly deferential standard
of review.‖ United States v. Dent, 149 F.3d 180, 187 (3d Cir.
1998); see also United States v. Coyle, 63 F.3d 1239, 1243 (3d
Cir. 1995) (―A claim of sufficiency of evidence places a very
heavy burden on the appellant.‖). We review evidence in the
light most favorable to the Government and ―must affirm the
conviction[] if a rational trier of fact could have found [the]
defendant guilty beyond a reasonable doubt, and the verdict is
supported by substantial evidence.‖ Coyle, 63 F.3d at 1243.
When evaluating the reasonableness of a jury‘s finding
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that a defendant possessed a gun in furtherance of a drug-
trafficking offense, we consider
the type of drug activity that [was] being
conducted, accessibility of the firearm, the type of
the weapon, whether the weapon [was] stolen, the
status of the possession (legitimate or illegal),
whether the gun [was] loaded, proximity to drugs
or drug profits, and the time and circumstances
under which the gun [was] found.
United States v. Sparrow, 371 F.3d 851, 853 (3d Cir. 2004).
Reviewing the evidence in the light most favorable to the
Government, we hold that Johnson‘s illegal possession of a
loaded handgun in his waistband while trafficking drugs
provided substantial evidence to support the jury‘s conclusion
that he used the weapon in furtherance of the offense. See
Coyle, 63 F.3d at 1243.
C
Finally, Johnson challenges the substantive
reasonableness of his sentence. We review this claim for abuse
of discretion, United States v. Doe, 617 F.3d 766, 769 (3d Cir.
2010), and ―will affirm it unless no reasonable sentencing court
would have imposed the same sentence on that particular
defendant for the reasons the district court provided,‖ United
States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc).
Johnson‘s Sentencing Guidelines range was 97 to 106
months, and he received a sentence of 120 months‘
imprisonment. The record demonstrates that the District Court
carefully reviewed the relevant sentencing factors of 18 U.S.C.
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§ 3553(a). In doing so, the Court noted that Johnson‘s prior
sentences did not ―appear to have captured completely the
seriousness of those offenses or the punishment that the Judges
in those cases wished to impose upon [him].‖ The failure of
those shorter sentences to deter Johnson, his unwillingness to
accept responsibility, and his long history of criminal behavior
all support the District Court‘s upward variance. Accordingly,
we find no abuse of discretion.
IV
For the reasons stated, we will affirm the District Court‘s
judgment of conviction and sentence.
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