United States v. Solon

FILED
United States Court of Appeals
Tenth Circuit

February 17, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 09-8018

NATHANIEL SOLON,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D. Ct. No. 2:07-CR-00032-CAB-1)

Megan L. Hayes, Laramie, Wyoming, appearing for Appellant.

James C. Anderson, Assistant United States Attorney (Kelly H. Rankin, United
States Attorney, with him on the brief), Office of the United States Attorney for
the District of Wyoming, Cheyenne, Wyoming, appearing for Appellee.

Before TACHA, SEYMOUR, and LUCERO, Circuit Judges.

TACHA, Circuit Judge.

Defendant-appellant Nathaniel Solon was convicted of possession and

attempted receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(1),

(a)(5)(B), and (b)(2). He was sentenced to concurrent terms of 72 months’
imprisonment. In this appeal, Mr. Solon argues that: (1) the government denied

him the right to present a complete defense; (2) a six-minute absence by the trial

judge constituted structural error; and (3) he was denied his right to a speedy

trial. We have jurisdiction under 28 U.S.C. § 1291, and we AFFIRM.

I. BACKGROUND

On January 18, 2007, Mr. Solon was charged by indictment with possession

of child pornography. He entered a plea of guilty to that charge on October 2,

2007. During his sentencing hearing on January 3, 2008, Mr. Solon stated that he

was innocent and the only reason he had pleaded guilty was because he did not

have the financial resources to hire an expert witness to investigate his defense.

The district court continued the proceeding, appointed Mr. Solon’s private

attorney to represent him, and indicated that it would provide funding for an

expert witness to help Mr. Solon prepare a defense.

Mr. Solon requested the court’s approval to retain Tami Loehrs, an out-of-

state expert with experience in computer forensic analysis. The district court

approved Ms. Loehrs as an expert witness, and authorized payment for “a total

billing not to exceed $20,000 unless further ordered by the Court.” Subsequently,

Mr. Solon filed a motion requesting payment of Ms. Loehrs’s initial bill of

$10,603.90, which covered travel, lodging, and compensation for three days of

work. Although the court noted that the bill seemed “unusually high,” it paid the

initial request. Because of the court’s concern over Ms. Loehrs’ fees, however, it

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withdrew its prior authorization of a $20,000 maximum for her services and

ordered that all future requests should be supported by specific cost estimates and

evidence of the need for and reasonableness of such services prior to incurring

additional costs.

At a hearing on April 16, 2008, Mr. Solon cited Ms. Loehrs’s preliminary

expert report as grounds for withdrawing his guilty plea. In her report, Ms.

Loehrs opined that there was no evidence that the images of child pornography on

Mr. Solon’s computer were ever opened, viewed, or saved to another location.

Furthermore, she believed that a virus may have compromised the system and

allowed access to the computer by outside sources, although she had not yet

determined to what extent, if any, that had actually occurred.

While the court considered Mr. Solon’s motion to withdraw his guilty plea,

he filed a motion to dismiss for violation of the Speedy Trial Act. The court

allowed Mr. Solon to withdraw his guilty plea but denied his motion to dismiss.

The court also agreed to pay for Ms. Loehrs to testify at the trial and for four

hours of pretrial consultation.

Mr. Solon’s trial commenced on November 3, 2008. During defense

counsel’s closing argument, the judge excused himself from the bench, instructing

the attorneys to “go right ahead.” Defense counsel did not object, but decided to

wait for the judge’s return before completing his closing argument. The judge

returned just under six minutes later, apologized for his absence, and explained

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that it was his secretary’s afternoon to play canasta and he had to get a couple of

letters out. The jury convicted Mr. Solon later that day, and the court sentenced

him to 72 months’ imprisonment.

Mr. Solon filed a motion for a new trial, asserting that the judge’s absence

constituted structural error because the jury may have inferred from his conduct

that Mr. Solon’s argument was not worth listening to. The trial court denied the

motion, concluding that if there was any error it was harmless. This timely

appeal followed.

II. DISCUSSION

A. Complete Defense

Mr. Solon first alleges the district court infringed on his Fifth Amendment

right to present a complete defense and his rights under the Criminal Justice Act

(“CJA”) when it modified its prior approval of funding for his expert witness. He

argues that the court’s order effectively halted the expert’s work and struck her

funding, thereby impeding his ability to develop and put on a complete defense.

The government contends that it was permissible for the district court to require

Mr. Solon to provide documentation prior to obtaining additional funding and that

the district court did not violate Mr. Solon’s rights because it never denied a

request for funding.

1. Criminal Justice Act

The CJA authorizes district courts to pay for indigent defendants’ counsel

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and “investigative, expert, and other services necessary for adequate

representation.” 18 U.S.C. § 3006A(e)(1). “In order to obtain services under this

provision, the defendant must do more than allege that the services would be

helpful.” United States v. Kennedy, 64 F.3d 1465, 1470 (10th Cir. 1995). Rather,

as the statute clearly states, the defendant must convince the court that the

expert’s services are “necessary to an adequate defense.” United States v.

Greschner, 802 F.2d 373, 376 (10th Cir. 1986). Under the CJA, if the cost of an

expert exceeds $1,600, not taking into account actual expenses, it will not be paid

unless “certified by the court . . . as necessary to provide fair compensation for

services of an unusual character or duration . . . .” 18 U.S.C. § 3006A(e)(3).

“Appointing an expert is within the discretion of the [c]ourt,” United States v.

Ready, 574 F.2d 1009, 1015 (10th Cir. 1978); therefore, we review the denial of a

CJA funding request for an abuse of discretion. Kennedy, 64 F.3d at 1470.

Here, the district court did not abuse its discretion, because, as the

government points out, the district court never actually denied a funding request.

Indeed, the district court granted the only funding request Mr. Solon made.

Therefore, Mr. Solon’s argument necessarily fails. Furthermore, § 3006A(e)(3)

expressly provides a district court with the discretion to determine whether high

costs are “fair compensation for services of unusual character or duration.” In

this case, the defense expert, Ms. Loehrs, submitted a bill of more than $10,000

for three days of work. The district court, understandably concerned by the high

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costs, altered its earlier approval of expenses and required Ms. Loehrs to provide

the court with an “affidavit itemizing expenses incurred on behalf of [Mr. Solon]

prior to . . . preauthorization of expert expenses.” This change was intended to

provide the court with a chance to “scrutinize and approve reasonable expenses

incurred,” and is consistent with the district court’s discretion to approve expert

fees under § 3006A(e)(3).

Because the district court never denied a funding request and because the

court’s requirement of an affidavit from Mr. Solon and his expert finds implicit

support in § 3006A(e)(3), we hold that the district court did not abuse its

discretion with respect to its provision of defense expert fees under the CJA.

2. Fifth Amendment Right to Due Process

“The Fifth Amendment’s guarantee of fundamental fairness entitles

indigent defendants to a fair opportunity to present their defense at trial.”

Kennedy, 64 F.3d at 1473. “An indigent defendant is not entitled to all the

assistance that a wealthier counterpart might buy, but rather only the basic and

integral tools.” Id. We determine what services constitute “basic tools” by

considering three factors: (1) the effect on the defendant’s interest in the accuracy

of trial if the requested service is not provided; (2) the burden on the

government’s interest if the service is provided; and (3) the probable value of the

additional service and the risk of error in the proceeding if the service is not

offered. Id. Importantly, these factors are all based upon a request by the

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defendant for additional services.

The fact that Mr. Solon failed to request additional funding is again

dispositive. The district court granted all of Mr. Solon’s requests for expert

witness funding and provided him with the means to request further funding.

Regardless of whether he believed the court was inclined to provide such funding,

Mr. Solon’s failure to make such requests negates any alleged constitutional

violation by the court.

B. Structural Error

Mr. Solon also argues that the district judge’s brief absence from the bench

during defense counsel’s closing argument constitutes structural error requiring

automatic reversal. The government concedes that it was error for the judge to

leave the bench, but maintains that it is trial error and thus subject to harmless-

error review.

Although most constitutional errors can be harmless, some are so offensive

to our judicial system that they require automatic reversal. Arizona v.

Fulminante, 499 U.S. 279, 306–09 (1991). “These violations, termed ‘structural

errors,’ involve defects in the ‘trial mechanism’ and affect ‘the framework within

which the trial proceeds’ ‘from beginning to end.’” United States v. Lott, 433

F.3d 718, 722 (10th Cir. 2006) (quoting Fulminante, 499 U.S. at 309–10)).

“Structural errors deprive defendants of ‘basic protections’ without which ‘a

criminal trial cannot reliably serve its function as a vehicle for determination of

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guilt or innocence, and no criminal punishment may be regarded as fundamentally

fair.’” United States v. Gonzalez-Huerta, 403 F.3d 727, 733 (10th Cir. 2005)

(quoting Rose v. Clark, 478 U.S. 570, 577–78 (1986)). “[A] defining feature of

structural error is that the resulting unfairness or prejudice is necessarily

unquantifiable and indeterminate, such that any inquiry into its effect on the

outcome of the case would be purely speculative.” Id. (internal quotations

omitted). On the other hand, trial errors which are not deemed structural remain

subject to harmless error review. See Fulminante, 499 U.S. at 306–07.

The Supreme Court has only deemed errors structural in a “very limited

class of cases.” Johnson v. United States, 520 U.S. 461, 468–69 (1997). These

include: a total deprivation of the right to counsel; the lack of an impartial trial

judge; the unlawful exclusion of grand jurors of defendant’s race; a deprivation of

the right to self-representation at trial; the denial of the right to a public trial; and

an erroneous reasonable-doubt jury instruction. See id. (citations omitted).

Neither the Supreme Court nor this circuit has ever decided whether a judge’s

absence from the bench constitutes structural error. The Third, Fourth, Fifth, and

Ninth Circuits, however, have considered the issue but have reached differing

conclusions.

In support of his position, Mr. Solon cites United States v. Mortimer, 161

F.3d 240 (3d Cir. 1998) and Riley v. Deeds, 56 F.3d 1117 (9th Cir. 1995). In

Mortimer, the judge disappeared from the bench during defense counsel’s closing

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argument. 161 F.3d at 241. The judge did not announce his departure and

nobody noticed his absence until the prosecutor made an objection. Id. The

judge gave no reason for his disappearance and was back on the bench “in time to

thank defense counsel for her speech and call the prosecutor for her rebuttal.” Id.

The Third Circuit noted the importance of a judge’s presence during trial

and held that “[o]n the facts of this case . . . structural error occurred.” Id.

Similarly, in Riley the judge disappeared during jury deliberations. 56 F.3d

at 1118. When the jury asked the court to read back part of the trial testimony,

the judge could not be located. Id. In the judge’s absence, his law clerk granted

and presided over the readback proceeding. Id. The Ninth Circuit held that “the

state trial judge’s failure to rule on whether the victim’s direct examination

should have been read back, coupled with his absence and unavailability during

the readback proceeding, resulted in structural error . . . .” Id.

In contrast, the government cites Heflin v. United States, 125 F.2d 700 (5th

Cir. 1942) and United States v. Love, 134 F.3d 595 (4th Cir. 1998) for the

position that the absence of a judge from the bench is not necessarily structural

error. In Heflin, the Fifth Circuit held that the absence of a trial judge “for two or

three minutes” during the defendant’s closing argument did not result in

prejudice. 125 F.2d at 701. Although the judge did not announce his departure,

there were no objections or motions made during his absence, and thus no

prejudice to the defendant. Id.

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Likewise, in Love the Fourth Circuit held that a district judge’s absence

during portions of closing arguments was harmless error. 134 F.3d at 604–05.

The judge told both parties that he would “on occasion be in his chambers,

working on other matters,” but he would be available to rule on objections should

any be made. Id. at 604. Neither party objected to the judge’s absence and the

defendant could not point to any “specific comments made in the district judge’s

absence that affected the trial’s fairness.” Id. Nevertheless, the defendant alleged

that the absence itself gave the jury the impression that the judge had made up his

mind. Id. at 605. The Fourth Circuit refused to consider the absence structural

error noting that unlike in Riley, there was no “complete abdication of judicial

control over the process.” Id. It further concluded that the error was harmless

because the judge was absent “during both sides’ closing arguments” and

“explained to the jury why he would leave the courtroom.” Id.

Here, the district judge left the bench for just under six minutes in the

middle of defense counsel’s closing argument and his clerk informed the parties

that he was still available to rule on objections. Although the record conveys the

parties’ confusion, at no point did Mr. Solon object to the judge’s absence.

Furthermore, counsel were aware that the judge was leaving the bench, and

despite his instruction to “go right ahead” nothing occurred during his absence.

Finally, upon his return to the bench, the judge explained his brief absence to the

court. Therefore, unlike in Mortimer and Riley, the judge in this case was

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available if needed and there were no objections to rule on or decisions for him to

make while he was away from the bench. Based on the record and the above-

cited case law, we cannot conclude that the judge’s absence in this case affected

the framework within which the trial proceeded from beginning to end. Under

these circumstances the absence of the judge did not constitute structural error. 1

Accordingly, this trial error is subject to harmless error review. Generally,

“[t]he government bears the burden of proving the error is harmless beyond a

reasonable doubt.” United States v. Rogers, 556 F.3d 1130, 1141 (10th Cir.

2009). When the defendant fails to timely object to an alleged error, however, we

review only for plain error and “[i]t is the defendant rather than the Government

who bears the burden of persuasion with respect to prejudice.” United States v.

Olano, 507 U.S. 725, 734 (1993). Mr. Solon failed to object to the district

judge’s absence, therefore, he must show that “there is (1) error (2) that is plain,

which (3) affects substantial rights, and which (4) seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Gonzalez-Huerta, 403

F.3d at 732.

The government has conceded and we strongly agree that the judge’s

departure from the bench was error. Furthermore, we hold that such error was

1
We do not decide today whether a judge’s absence from the bench might
constitute structural error in a case where the facts indicate a “complete
abdication of judicial control over the process.” See Riley, 56 F.3d at 1118. We
only decide that based on the facts of this case, the judge’s absence did not rise to
the level of structural error.

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also clear and obvious. Nevertheless, Mr. Solon has not satisfied the third prong

of plain-error review. In order to do so, he “must show a reasonable probability

that, but for the error claimed, the result of the proceeding would have been

different.” Id. at 733.

Mr. Solon contends that the “context and timing of the judge’s departure

from the courtroom” resulted in sufficient prejudice to call into question the result

of the proceeding. He argues that when combined with prior comments made

about Ms. Loehrs, the judge’s departure from the bench “reflected on the

credibility of the entire defense case.” The record does not support Mr. Solon’s

position. Although the judge made several disparaging comments about Ms.

Loehrs and her rates, only one such comment was made in front of the jury.

When Ms. Loehrs testified that her work had been “stopped,” the judge gave the

following instruction:

Members of the jury, the witness just said that she was stopped and
coupled with her testimony yesterday there is the implication that the
court stopped her from working. That is absolutely untrue. It is a
falsity, and you are instructed to ignore it. And we will hear no more
such testimony. I never did stop this witness from working. I did
stop her from submitting excessive bills to the United States, and
that’s all I ever did.

The dissent recites other statements by the judge; however, because those

statements were made outside the presence of the jury, they could not have

affected the jury’s perception of Ms. Loehrs or her testimony and therefore have

no bearing on our analysis. Additionally, although the judge left the bench during

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defense counsel’s closing argument, it was during a point at which counsel was

comparing the testimony of defense and prosecution witnesses in general, not just

Ms. Loehrs’s. Defense counsel had already mentioned Ms. Loehrs’s testimony

several times during his argument and went on to address her testimony in further

detail after the judge’s return. Even in light of the judge’s prior statement, we

cannot agree with Mr. Solon that the district judge’s absence could only be

interpreted as discrediting Ms. Loehrs’s testimony or Mr. Solon’s defense.

Additionally, the government’s case was strong. Mr. Solon’s computer was

observed online offering child pornography for download on June 23 and August

9, 10, and 11, 2006. A search of Mr. Solon’s computer’s hard drive revealed that

on September 20, 2006, forty-six files with names consistent with child

pornography were downloaded using Limewire, a peer-to-peer file sharing

program. Furthermore, Mr. Solon admitted to using Limewire on September 20 to

attempt to download two computer games. Additionally, the government

presented evidence that Mr. Solon was playing online poker on his computer less

than five minutes before the child pornography files were downloaded. In light of

the brevity of the judge’s absence as well as the strength of the government’s

case, Mr. Solon has not established a reasonable probability that, but for the

judge’s absence, the jury would not have convicted him.

Because Mr. Solon has failed to satisfy plain-error review, he is not entitled

to relief on this claim. Nevertheless, we note that it is serious error for a judge to

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leave the bench without safeguards. Ordinarily, when a judge needs to leave the

bench, the court should take a recess. If for some reason the court does not take a

recess, the judge should, at a minimum, provide notice to counsel and an

admonition to the members of the jury concerning the nature of his absence and

the fact that they should make no inference from his departure. These safeguards

help to prevent prejudice to either party and to maintain the integrity of the

judicial system.

C. Speedy Trial Act

Finally, Mr. Solon claims he was denied his statutory right to a speedy trial

under 18 U.S.C. § 3161. Specifically, he argues that the speedy trial clock began

running thirty days after the district court took his motion to withdraw his guilty

plea under advisement. The government argues that pursuant to § 3161(i), the

clock did not begin to run until Mr. Solon’s motion was granted. We review the

district court’s compliance with the Act de novo. United States v. Dirden, 38

F.3d 1131, 1135 (10th Cir. 1994).

“The Speedy Trial Act is designed to protect a criminal defendant’s

constitutional right to a speedy trial and serve the public interest in bringing

prompt criminal proceedings.” United States v. Thompson, 524 F.3d 1126, 1131

(10th Cir. 2008). It generally requires that the trial of a defendant commence

within seventy days from the later of the filing date of the information or

indictment or the defendant’s initial appearance. 18 U.S.C. § 3161(c)(1). That

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time period only applies, however, “[i]n any case in which a plea of not guilty is

entered.” Id. When, as in this case, a plea of guilty is entered but later

withdrawn, “the defendant shall be deemed indicted . . . on the day the order

permitting withdrawal of the plea becomes final,” thereby starting the seventy-day

clock. Id. § 3161(i).

Accordingly, under the plain language of the Act, the speedy trial clock

began running on September 17, 2008, the date on which the district court granted

Mr. Solon’s motion. Trial commenced on November 3, 2008, well within the

seventy-day time limit. Therefore, the district court properly denied Mr. Solon’s

motion to dismiss based a violation of the Act.

III. CONCLUSION

For the foregoing reasons, we AFFIRM Mr. Solon’s conviction.

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09-8018, United States v. Solon

LUCERO, J., concurring in part and dissenting in part).

Were this case simply about an innocent game of canasta, I would readily

join the opinion of my majority colleagues outright. However, the abrupt

departure of the trial judge from the bench while defense counsel was discussing

the testimony of defendant’s star witness, when coupled with the court’s earlier

admonitions to the jury that the same witness’s testimony was “absolutely untrue”

and a “falsity,” can only be interpreted as a clear message to the jury that the

witness was not credible or worthy of the court and jury’s unbiased consideration.

Although I agree with the majority’s disposition of Solon’s speedy trial and

complete defense claims, I would hold that the judge’s actions were a clear

violation of Solon’s due process rights and constituted reversible plain error.

Thus, I respectfully dissent.

To understand the district court’s actions in this case, some context is

necessary. As the majority notes, the district court approved payment of up to

$20,000 for Tami Loehrs’ expert services. (Majority Op. 2.) Following

submission of Loehrs’ initial bill, the court stated “that woman is outrageous in

her charges for what she did to travel from Arizona up to Casper.” Although the

trial judge acknowledged he had authorized payment of up to $20,000, the judge
continued that “it is going to be a cold day in hell before I ever authorize”

payment to Loehrs of $15,000. In a later hearing, the court again commented on

Loehrs, claiming to “have never heard a more abrasive witness than that.” It then

advised defense counsel that he did not need to use “this woman with pretty

exalted ideas of her worth.”

The court’s derision of Loehrs continued into trial. When asked if she had

reviewed certain virus logs, Loehrs responded, “Actually, this is about the point

in my exam where I was stopped.” The government objected and requested that

the comment be stricken, but the district court went well beyond the government’s

request. Sua sponte, the court instructed the jury:

Against this backdrop, the court’s actions during closing take on added

significance. Defense counsel began to discuss what he viewed as a “double

standard in this courtroom with regard to what people say and then holding them

to it,” implying that the prosecutor unfairly took Loehrs to task for

inconsistencies in her testimony although the testimony of several government

witnesses contained similar inconsistencies. Counsel then identified “a couple of

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mistakes” Loehrs had made in her testimony, which he deemed “inconsequential.”

At that point, the judge left the courtroom, telling counsel to “just go right

ahead.” Defense counsel declined the court’s invitation, explaining to the jury

that if he “were to say something that caused [the prosecutor] to have some grief,

and [the prosecutor] stood up and made an objection, there would be no one to

rule.” The prosecutor took control of the courtroom, suggesting the jury use the

break “to get up and stretch, relax.” A little more than five minutes later, the

judge returned. He stated:

Sorry for the interruption, but I did not intend for there to be one.
But my secretary had announced just as I was leaving to start court
that this was her afternoon to play canasta, and I had to get a couple
letters out.

The judge’s contempt for Loehrs is patent from the cold transcript. After

instructing the jury that Loehrs was lying on the stand and had attempted to raid

the federal treasury by submitting “excessive bills,” the court simply could not

bear to listen to defense counsel’s discussion of her reliability. The judge’s

comments upon return only compounded the error, in that they were likely taken

and understood by the jury as implying that a secretary’s canasta game was more

important than Solon’s defense theory. Although I am not unsympathetic to the

trial judge’s frustration regarding the high cost of litigation and experts fees, the

matter of Loehrs’ fees should not have been handled in such an unorthodox

manner.

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II

Because Solon’s counsel, likely flummoxed by the incredible events he

witnessed, failed to object to the judge’s absence, I agree with the majority that

we review only for plain error. Further, I agree that Solon has failed to

demonstrate that the judge’s actions constituted structural error. See United

States v. Gonzalez-Huerta, 403 F.3d 727, 734 (10th Cir. 2005) (en banc). The

judge’s actions did not “affect the composition of the record,” Rose v. Clark, 478

U.S. 570, 580 n.7 (1986), and we are “capable of finding that the error caused

prejudice upon reviewing the record,” Gonzalez-Huerta, 403 F.3d at 734. This

case is unlike those upon which Solon relies for his structural error arguments,

United States v. Mortimer, 161 F.3d 240 (3d Cir. 1998), and Riley v. Deeds, 56

F.3d 1117 (9th Cir. 1995). The harm here was not the judge’s absence at a

critical stage in trial, but his unspoken commentary to the jury.

Although the majority holds that the district court’s actions constituted

clear and obvious error, it concludes that Solon failed to demonstrate prejudice.

(Majority Op. 11-13.) I must disagree. There is no denying that the

government’s case was strong. As the majority accurately recounts, child

pornography was found on Solon’s computer, and Solon admits to being online

the night that pornography was downloaded. (Majority Op. 12-13.)

Nonetheless, Solon mounted a defense that a jury could have credited. He

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argued that the child pornography was placed on his computer as a result of a

computer virus or Trojan. Loehrs testified:

[Solon’s] computer had all of the symptoms, all of the things that
you could need to have a vulnerable computer. He had Limewire.
He had his IP address out there. He had no password. He had open
ports. He had evidence of viruses and Trojans that further made his
computer vulnerable.

I have not done all of the investigation to prove that this
computer was hacked into, but it looks really bad. It is very, very
open, and very, very unsecure [sic].

This defense theory has been successfully employed in other cases, and has been

the subject of some media attention. See Laurel J. Sweet, Probe Shows Kiddie

Porn Rap Was Bogus, Boston Herald, June 16, 2008, at 5; John Schwartz,

Acquitted Man Says Virus Put Pornography on Computer, N.Y. Times, Aug. 11,

2003, at C1.

The majority holds that Solon has not established “a reasonable probability

that, but for the error claimed, the result of the proceeding would have been

different.” (Majority Op. 12 (quoting Gonzalez-Huerta, 403 F.3d at 733).)

Although it is treacherous for appellate judges to attempt to predict the votes of

jurors, I would hold that Solon has met his burden under the third prong of our

plain error analysis. That is, he has shown that the error “affect[ed] substantial

rights.” United States v. Olano, 507 U.S. 725, 734 (1993) (quoting Fed. R. Crim.

P. 52(b)). The inquiry is whether Solon has shown that, but for the court’s error,

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there was a reasonable probability of acquittal. See United States v. Hasan, 526

F.3d 653, 665 (10th Cir. 2008). “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. (quotation omitted).

Solon does not bear the burden of proving he is actually innocent; instead, “the

touchstone is simply whether the ultimate verdict is one worthy of confidence.”

United States v. Robinson, 583 F.3d 1265, 1270-71 (10th Cir. 2009) (quotation

omitted).

I have no confidence in the jury verdict under review. Had at least one

juror credited Loehrs’ testimony, Solon’s jury may well have found reasonable

doubt. But the jury was unfairly prejudiced against Loehrs by the comments and

actions of the district court. In our adversarial system, a criminal defendant is

entitled to stage a credibility contest refereed by a jury of his peers. Solon was

not given this opportunity. Instead, the district court instructed the jury that

Solon’s primary witness was dishonest and that Solon’s theory was unworthy of

the court’s time. It may as well have directed a verdict of guilty.

Because the majority decides this case on the third prong of plain error

review, it does not address whether the court’s actions “seriously affect[ed] the

fairness, integrity, or public reputation of judicial proceedings.” Gonzalez-

Huerta, 403 F.3d at 732 (quotation omitted). I would hold that Solon has satisfied

this prong as well. The district court went beyond what might simply be

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described as negative feelings toward a defense witness, actively impeaching

Loehrs by word and deed in derogation of its duty of neutrality. When judges

behave in such a manner, our entire judicial system suffers. Neutrality in judges:

preserves both the appearance and reality of fairness, generating the
feeling, so important to a popular government, that justice has been
done by ensuring that no person will be deprived of his interests in
the absence of a proceeding in which he may present his case with
assurance that the arbiter is not predisposed to find against him.

Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980) (quotation omitted).

III

For the foregoing reasons, I respectfully dissent.

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