United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
February 22, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-20087
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN SIDNEY HILLSMAN,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Defendant argues that his Sixth Amendment right to counsel was
violated when the district court responded to a jury note without
first giving defense counsel an opportunity to object to the
response. We affirm.
I
John Hillsman was indicted with three counts of possession of
crack cocaine, possession of a firearm in furtherance of a drug
trafficking offense, and felon in possession. He pleaded guilty
to the last count, but denying possession of crack, demanded a jury
trial on counts one and two.
He was convicted on both counts. The prosecution’s case
turned entirely on the testimony of officer Oliver, who watched
Hillsman “drop[] a clear plastic bag of crack cocaine into a metal
trash can.” This testimony was, in the prosecution’s own words,
“the sole[] evidence of Mr. Hillsman’s alleged possession of the
crack cocaine.”
After five hours of jury deliberations, the jury sent out a
written note to the district court, which read: “Is there any other
information about Officer Oliver? Account of incident that we may
consider?” The case manager showed the note to both counsel and
asked them, off the record and outside the presence of the judge,
for their suggested responses. Defense counsel suggested that the
court respond: “No. Please refer to your jury instructions.” The
prosecutor agreed. The case manager informed the attorneys that
the jury would break for the day. The case manager then informed
the judge of defense counsel’s proposed response to the note.
That same afternoon, before the jury left, the judge submitted
the following written response: “No. I am sorry.” Neither counsel
was advised of the judge’s response nor given a chance to object to
its content. Defense counsel found out about the response after
the verdict was returned, and objected to it in a motion for new
trial, arguing that the court’s failure to disclose its response to
2
the jury note violated his client’s Sixth Amendment right to
counsel.
II
We review the district court’s decision to deny relief de
novo.1 Before reaching the merits, we must first address the
government's contention that our review should be for plain error
only because the defendant did not object to the court's
instruction until his motion for new trial. The defendant responds
with the obvious: he didn't even know about the court's
supplemental instruction until after the verdict was announced.
The government relies on Combs, in which the Sixth Circuit
conducted plain-error review in a similar case.2 But in Combs the
court actually notified the parties, through a law clerk, of its
proposed response and directed the parties to submit objections to
the clerk. The Combs court decided that plain-error review was
appropriate because defense counsel had relayed her objections to
the law clerk, but never asked to have the district judge take the
bench, nor otherwise tried to create a record of her objections.
Here defense counsel was not informed of the court's intention to
submit the instruction. We will ask first, then, if there was
legal error, and in its absence, we will review for abuse of
discretion.
1
United States v. Cronic, 466 U.S. 648, 654 (1984).
2
United States v. Combs, 33 F.3d 667, 669 (6th Cir. 1994).
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III
The Sixth Amendment guarantees that “(i)n all criminal
prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence.” It is well established
that the accused is entitled to the assistance of counsel not only
at the trial itself, but at all “critical stages” of his
prosecution.3 If counsel for the accused is totally absent during
a critical stage, then there is a presumption of prejudice under
Cronic, and “reversal is automatic.”4
Other Circuits have held that a district court’s re-
instruction of the jury is a critical stage at which counsel must
be present.5 Yet even by these precedents, Hillsman is not
entitled to Cronic’s presumption of prejudice. For these same
circuits recognize a distinction between the primary set of
instructions contained in the court’s charge and later repetition
of instructions, explaining that the “rereading of identical jury
instructions is not a critical stage of a criminal trial” and that
“reading instructions to the jury is not a critical stage of the
3
See Van v. Jones, __ F.3d __, 2007 WL 91660, (6th Cir. 2007); Coleman v.
Alabama, 399 U.S. 1 (1970); United States v. Wade, 388 U.S. 218 (1967);
Gilbert v. California, 388 U.S. 263 (1967); Hamilton v. Alabama, 368 U.S. 52
(1961).
4
Holloway v. Arkansas, 435 U.S. 475 (1978); Cronic, 466 U.S. at 659
n.25.
5
United States v. Tolliver, 330 F.3d 607, 613 (3d Cir. 2003); Hudson v.
Jones, 351 F.3d 212 (6th Cir. 2003); Curtis v. Duval, 124 F.3d 1, 4 (1st Cir.
1997). But see United States v. Widgery, 778 F.2d 325 (7th Cir. 1985) ("a
judge's failure to show jurors' notes to counsel and allow them to comment
before responding violates Fed.R.Crim.P. 43(a), not the constitution.").
4
proceedings if trial counsel has previously agreed to the
instructions.”6
The district court presented the jury’s note to counsel, and
the court responded to the note with an instruction that was not
materially different from that sought by counsel. In context, the
surplus phrase “I'm sorry” was no more than a polite expression
added to the negative response. As we see it, with the omitted
phrase, “please refer to your jury instructions,” the district
court simply refused to further instruct the jury, albeit outside
the presence of the defendant and his counsel.
Nor do we think that a reasonable juror would have understood
the judge to be expressing his disappointment in being unable to
disclose information about Officer Oliver or the incident that was
not in the record. The jury was instructed and reminded in court
and by counsel throughout the trial that its verdict must be based
only on the evidence in the case. The response, “No. I am sorry,”
to the inquiry of whether it could do otherwise, to the extent that
it instructs, is no more than a polite adherence to his earlier
instructions. In sum, this was not a critical stage, and there was
no Sixth Amendment violation.
The judgment of conviction is AFFIRMED.
6
Hudson, 351 F.3d at 217. See also Gonzalez-Gonzalez v. United States,
No. 02-1243, 2002 WL 31416029, 49 Fed. Appx. 322 (1st Cir. Oct. 29, 2002);
United States v. Toliver, 330 F.3d 607 (3d Cir. 2003).
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