United States v. Lourdes Garcia (11th Cir. October 2018)
Fifth Amendment/Sixth Amendment – Trial court’s decision to allow the government to introduce inculpatory evidence while both the defendant and her lawyer were absent was constitutional error but did not prejudice the defendant under plain-error analysis.
Lourdes Garcia was convicted of tax fraud after a ten-day jury trial. On the sixth day of that trial, the government called its last witness, IRS agent Angela Arevalo, who had extensively investigated Garcia’s financial transactions.
Agent Arevalo’s testimony was important in explaining Exhibit 6, the government’s summary of Garcia’s fraudulent transactions and the taxable income Garcia failed to report. This testimony came in while Garcia and her counsel were present.
After a recess for lunch, the Government continued its direct examination of Arevalo, though the defense team had not yet returned to the courtroom. Counsel did not return until three minutes after Arevalo had been testifying; Garcia returned ten minutes after. During that, Arevalo went over multiple expenditures Garcia had made.
Garcia’s counsel did not object when she returned to courtroom or during a sidebar colloquy specifically discussing the inculpatory evidence admitted in the defense team’s absence. In fact, counsel expressly declined to object.
After Garcia was convicted and sentenced, Garcia appealed, arguing that her Sixth and Fifth Amendment rights to confront witnesses, present a defense, and be present during the proceedings were violated. The Eleventh Circuit affirmed Garcia’s conviction and sentence, despite finding that there was “no question” that a “plain and obvious” constitutional error had occurred.
After finding the District Court erred, the Court then had to determine what standard of review to apply—either the structural error standard or the plain-error standard, since Garcia’s counsel had expressly declined to object at trial.
Garcia argued that the Court should adopt and apply the structural error standard, under which prejudice is presumed if a defendant can establish that an error actually occurred. Structural errors are defined as errors that violate constitutional protections “whose precise effects are unmeasurable, but without which a criminal trial cannot reliably serve its function.” Applying this standard would be significant in Garcia’s appeal, since a structural error essentially requires an automatic reversal. In support of her argument, Garcia relied on the egregious nature of the error.
Citing last year’s en banc opinion in United States v. Roy, 855 F.3d 1133, however, the Eleventh Circuit declined to apply the structural error standard after a qualitative and quantitative analysis of the testimony given in the defense team’s absence.
Turning to that testimony, the Court listed the financial transactions Agent Arevalo described and concluded that these “minor payments” only represented “a small sampling of nearly 400 personal expenditures.” The Court noted that the testimony was only “some six pages of the trial transcript out of a total of 1,559 pages.” What’s more, the Court added, the defendant was only absent for “.33535 percent of the trial’s 49.7 hours.” A defendant’s absence during such an insignificant part of trial, the Court reasoned, is simply not enough to presume error under the structural error standard.
Therefore, the Court applied the plain-error standard, under which a conviction is only reversed if a defendant shows his or her substantial rights were affected by the error in question. So, Garcia would have to show that she was prejudiced by her and her counsel’s absence.
The Court held she was not prejudiced by the district court’s “plain and obvious” error. Just like its rationale for declining to apply the structural error standard, the Court pointed to the short length of time the defense team was absent, and the fact that the evidence tendered during their absence was not relatively significant to the case. Essentially, the Court held that, since the defense team didn’t miss anything that important, the defendant wasn’t prejudiced.
Appeal from the Southern District of Florida
Opinion by Marcus, joined by Wilson and Graham (by designation from S.D. Ohio)