No. 98-1404
In the Supreme Court of the United States
OCTOBER TERM, 1998
WILLIAM OSCAR ROYSTER, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
JAMES K. ROBINSON
Assistant Attorney General
NINA GOODMAN
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether petitioner was entitled to collateral relief under 28 U.S.C. 2255
(1994 & Supp. III 1997) because the trial judge was absent from the
bench during a portion of the prosecutor's closing argument at petitioner's
trial.
In the Supreme Court of the United States
OCTOBER TERM, 1998
No. 98-1404
WILLIAM OSCAR ROYSTER, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 29a-30a) is unpublished,
but the judgment is noted at 165 F.3d 22 (Table). An earlier opinion of
the court of appeals (Pet. App. 1a-8a) is also unpublished, and the judgment
is noted at 61 F.3d 901 (Table). The opinion of the district court (Pet.
App. 9a-28a) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on October 15, 1998. A
petition for rehearing was denied on December 28, 1998. The petition for
a writ of certiorari was filed on March 3, 1999. The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
Following a jury trial in the United States District Court for the Eastern
District of North Carolina, petitioner was convicted of conspiring to possess
cocaine with intent to distribute it, in violation of 21 U.S.C. 846; extortion,
in violation of 18 U.S.C. 1951; witness tampering, in violation of 18 U.S.C.
1512(b)(3); and making false statements before a federal grand jury, in
violation of 18 U.S.C. 1623. He was sentenced to 293 months' imprisonment.
The court of appeals affirmed on direct appeal. Pet. App. 1a-8a. Thereafter,
petitioner filed a motion to vacate his sentence under 28 U.S.C. 2255 (1994
& Supp. III 1997). The district court denied the motion, Pet. App. 9a-28a,
and the court of appeals affirmed, Pet. App. 29a-30a.
1. While petitioner was a police officer in Oxford, North Carolina, he accepted
more than $100,000 in payoffs from the leader of a local cocaine distribution
operation in exchange for police protection and confidential police information.
Petitioner told a co-conspirator, Jimmy Chavis, that he should lie to a
grand jury about the cocaine distribution organization. Petitioner also
made false statements in his own grand jury testimony concerning his contacts
with Chavis and other members of the organization. Pet. App. 2a, 6a.
A federal grand jury returned an indictment charging petitioner with conspiracy
to possess and distribute cocaine, extortion, witness tampering, and perjury
before the grand jury. Pet. App. 2a. At petitioner's trial, before the prosecutor
began his closing argument, the district court stated to the jury:
Finally, let me say to you that during the course of the arguments I may
not stay here at the bench. I may go back into chambers and work on other
matters, my charge or other matters that I have to attend to. But if I leave
the bench, I'll be in ear shot of what's going on. If one of the lawyers
should object to something that the other said, why, they know to stop their
arguments until I can come back into the courtroom and rule on whatever
the objections might be.
As you know, the lawyers are officers of the court, and they follow the
rules of the court in every respect.
Id. at 11a. The judge left the bench during a portion of the prosecutor's
argument, but returned to the courtroom at the end of the argument, and,
after a recess, was present for the defense counsel's closing argument and
the prosecutor's rebuttal argument. Id. at 13a-15a. The jury found petitioner
guilty of all the charges against him, id. at 2a, and the court of appeals
affirmed his convictions, id. at 1a-8a.
2. Petitioner then filed a motion under 28 U.S.C. 2255 (1994 & Supp.
III 1997), claiming, among other things, that the trial judge's "selective
absence from the bench" during part of the prosecutor's closing indicated
to the jury that the prosecutor, but not defense counsel, could be trusted
in his absence, and therefore amounted to "vouching" for the integrity
of the prosecutor. Pet. App. 14a-15a. Petitioner also contended that his
trial counsel was ineffective in failing to object to the judge's absence
from the bench, and that his appellate counsel was likewise ineffective
in failing to argue on direct appeal that the judge's absence required reversal
of his convictions. Id. at 10a-11a.
The district court denied petitioner's motion. Pet. App. 9a-28a. As an initial
matter, the court rejected petitioner's assertion that the trial judge's
"selective absence" from the bench amounted to "vouching"
for the prosecutor's integrity. The court found that claim to be "purely
speculative" and "unsupported by any evidence of record,"
noting that the judge had been in the courtroom during the prosecutor's
rebuttal argument. Id. at 11a- 15a, 18a. The court also declined to adopt
a "per se rule that a trial judge's absence from the courtroom at any
stage of a criminal trial is reversible error," finding it more likely
that the court of appeals would require a defendant seeking post-conviction
relief "to demonstrate prejudice resulting from a trial judge's absence
from the bench, * * * especially when there was no contemporaneous objection
to the court's announced intention to step out of the courtroom during closing
arguments." Id. at 17a-18a. In this case, the district court concluded,
petitioner had not shown that he was prejudiced by the judge's absence from
the bench during a portion of the prosecutor's closing argument. Id. at
18a.
3. The court of appeals affirmed. Pet. App. 29a-30a. Citing its prior decision
in United States v. Love, 134 F.3d 595 (4th Cir.), cert. denied, 118 S.
Ct. 2332 (1998), the court held that petitioner "did not demonstrate
that the trial judge's absence from the bench during the [g]overnment's
closing argument was prejudicial." Pet. App. 30a.
ARGUMENT
Petitioner contends (Pet. 8-15) that the trial judge's absence from the
courtroom during a portion of the prosecutor's closing argument constituted
"structural error" that is not subject to harmless-error analysis,
and further contends that the court of appeals' contrary decision conflicts
with the decisions of other courts. Neither contention has merit.
1. This Court's cases establish a "strong presumption" that constitutional
errors are subject to harmless-error inquiry. See Rose v. Clark, 478 U.S.
570, 579 (1986). Nonetheless, the Court has recognized a narrow class of
fundamental constitutional errors-sometimes referred to as "structural
errors"-that are intrinsically harmful and thus require reversal without
inquiry into their effect on the trial's outcome. See Arizona v. Fulminante,
499 U.S. 279, 309-310 (1991). Unlike ordinary trial errors, structural errors
generally affect "[t]he entire conduct of the trial from beginning
to end" and "the framework within which the trial proceeds."
Ibid.; see also Brecht v. Abrahamson, 507 U.S. 619, 630 (1993) (constitutional
errors are intrinsically harmful only where they "infect the entire
trial process"). The Court has found such error "only in a very
limited class of cases." Johnson v. United States, 520 U.S. 461, 468
(1997). See, e.g., Sullivan v. Louisiana, 508 U.S. 275 (1993) (defective
reasonable-doubt instruction); Vasquez v. Hillery, 474 U.S. 254 (1986) (racial
discrimination in grand jury); Waller v. Georgia, 467 U.S. 39, 49 n.9 (1984)
(denial of public trial); McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984)
(denial of self-representation); Gideon v. Wainwright, 372 U.S. 335 (1963)
(complete denial of counsel); Tumey v. Ohio, 273 U.S. 510 (1927) (biased
judge).
The error at issue in this case-the trial judge's absence from the bench
during a portion of the prosecutor's closing argument-bears no relation
to the pervasive and fundamental errors that the Court has held to be intrinsically
harmful. To the contrary, the judge's temporary absence did not affect the
entire conduct of the trial, and is amenable to traditional methods of harmless-error
review. This is not a case in which the trial judge abdicated his Article
III responsibility to rule on issues of law and otherwise ensure fundamental
fairness. Instead, the judge simply announced that, rather than monitoring
some portions of closing arguments from the bench, he would do so from nearby-remaining
within "ear shot" and available to rule on any objections raised
by counsel. Pet. App. 11a. Petitioner did not object to the judge's proposal
that he monitor proceedings from a location other than the bench; and petitioner
does not suggest that he was prejudiced by any statement made by the prosecutor
while the judge was so doing. Indeed, no issues requiring the judge's decision
were raised during the judge's absence. As a result, any error was plainly
harmless.
2. Although petitioner argues that state and federal courts are in conflict
on whether a trial judge's absence from the bench during a portion of trial
is "reversible error per se" that can never be harmless, Pet.
10-12, no such conflict exists. In fact, petitioner cites no decision adopting
the per se rule he proposes.
In the first case relied upon by petitioner, Riley v. Deeds, 56 F.3d 1117
(9th Cir. 1995), see Pet. 11, the trial judge had left the courthouse during
the jury's deliberations, and the judge's law clerk granted the jury's request
to have portions of the trial testimony read back by the court reporter.
56 F.3d at 1118-1122. Finding a "complete abdication of judicial control
over the process," id. at 1121, the court of appeals invalidated the
conviction. The court of appeals, however, specifically declined to decide
"whether a judge's absence during the course of a trial, regardless
of the nature of the proceeding from which he is absent and the duration
of his absence, amounts to structural error which is reversible per se."
Id. at 1120.
The court of appeals in Riley, moreover, specifically noted that, where
there is an "express or implied waiver of the right to the judge's
presence," or where "the judge, while technically absent, remained
in 'effective control' of the proceedings," courts have refused to
reverse convictions absent a showing of prejudice. 56 F.3d at 1121 (citing
cases). Both of those conditions were present here. The judge here did not
cede control over contested proceedings. Rather, he monitored the trial
and exercised control from within "ear shot" rather than from
the bench. See Pet. App. 11a (trial judge would "be in ear shot of
what's going on" and would "rule on whatever * * * objections
might be" raised). And, even though the judge announced his intention
to monitor the trial and exercise control from nearby rather than from the
bench, no party objected, and no legal issue requiring the judge's decision
arose. Since petitioner did not resist the judge's proposal that he monitor
proceedings from nearby, and the judge retained effective control over the
proceedings in any event, Riley actually supports the court of appeals'
decision to require a showing of prejudice in this case.
Petitioner's claim that the decision below also conflicts with United States
v. Mortimer, 161 F.3d 240 (3d Cir. 1998), see Pet. 11, is similarly without
basis. There, the court of appeals concluded that the district court's wholly
unexplained "disappear[ance]" from the bench during the defense
attorney's closing argument, with "no notice to counsel or the jury
that he was about to depart," was structural error "[o]n the facts
of this case." 161 F.3d at 241. There, unlike here, the trial court
judge was not within earshot and was not able to maintain control over the
proceedings. (Indeed, the prosecutor made an objection during the judge's
absence, "only to withdraw it with the exclamation '[t]he judge is
not here.'" Ibid.) The court of appeals, moreover, expressly distinguished
cases like this one, in which the parties expressly or impliedly consented
to the judge's absence, explaining that the trial "structure normally
stands if the parties consent to excuse the presence of a judge." Ibid.
Indeed, the court of appeals in Mortimer expressly distinguished United
States v. Love, 134 F.3d 595 (4th Cir.), cert. denied, 118 S. Ct. 2332 (1998),
the decision on which the court of appeals relied here. In Love, as in this
case, the trial judge told the jury immediately before closing arguments
that he would at times "be in his chambers, working on other matters,"
but that he would be available to rule on objections, and neither the government
nor the defendant objected to the judge's absence from the bench. 134 F.3d
at 604-605. Given that Mortimer expressly and reasonably distinguishes cases
like this one and Love, the claim of conflict between this case and Mortimer
is incorrect.
Petitioner's claim that the decision in this case conflicts with various
state court decisions is likewise unsound. The cases on which petitioner
relies (Pet. 12) all involved a trial judge's decision to relinquish control
over the proceedings entirely, often without counsel's consent. See, e.g.,
People v. Ahmed, 487 N.E.2d 894, 895-897 (N.Y. 1985) (judge absent from
courtroom during jury deliberations; judge's law secretary answered jury's
questions in his absence); Brown v. State, 538 So. 2d 833, 834-836 (Fla.
1989) (judge not present when communication from jury during deliberations
was received and answered); People v. Cook, 659 N.Y.S.2d 510, 511 (N.Y.
App. Div. 1997); People v. Toliver, 675 N.E.2d 463, 464 (N.Y. 1996); People
v. Vargas, 673 N.E.2d 1037, 1044-1045 (Ill. 1996); Glee v. State, 639 So.
2d 1092, 1093 (Fla. Dist. Ct. App. 1994). None of those cases addresses
a situation where, as here, the judge was within earshot and available to
exercise judicial control over the proceedings at all times, the judge announced
and explained where he would be without objection from counsel, and no issues
for the judge's decision were raised in his absence in any event.1
3. Finally, there is no merit to petitioner's suggestion (Pet. 13-14) that
the court of appeals' decision "conflicts in principle" with Tumey
v. Ohio, 273 U.S. 510 (1927). In Tumey, this Court held that trial before
a village official who has both a "direct personal pecuniary interest
in convicting the defendant" (because he would be paid only in the
event of a conviction) and a political interest as mayor in the financial
condition of the village (which received a portion of any fine collected)
violates due process. Id. at 523-534; see Arizona v. Fulminante, 499 U.S.
at 309 (citing lack of judicial impartiality in Tumey as an example of a
"structural defect[] in the constitution of the trial mechanism").
Petitioner does not suggest that the trial court had any pecuniary or personal
interest in the outcome of his case. Instead he argues (Pet. 13) that "[t]he
judge's actions indicated * * * that he trusted the government enough to
refrain from doing anything wrong during his absence-but he did not trust
the defense that much." Even setting aside the fact that jurors are
highly unlikely to draw such an inference as a general matter,2 the trial
judge was present during the prosecutor's rebuttal argument, making that
inference exceedingly unlikely in this case, as the district court held
below. Pet. App. 15a. The trial judge, moreover, eliminated the possibility
of such speculation concerning the "meaning" of his absence when
he instructed the jurors as to where he would be and why, noted that he
would still be able to rule on objections, and advised the jurors that both
"lawyers are officers of the court, and" that both "follow
the rules of the court in every respect." Id. at 11a. The district
court therefore correctly concluded that petitioner's claim was "unsupported
by any evidence of record" and "purely speculative." Id.
at 14a, 18a.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
JAMES K. ROBINSON
Assistant Attorney General
NINA GOODMAN
Attorney
MAY 1999
1 For example, in Vargas, the Illinois Supreme Court distinguished an earlier
decision in which it held that the trial judge's absence during closing
argument was "harmless error because '[t]he judge was within hearing
and no questions were raised to be passed upon by the judge.'" 673
N.E.2d at 1044 (quoting Schintz v. People, 52 N.E. 903, 905 (Ill. 1899)).
The court reasoned that "[t]he harmless error approach of Schintz may
be understood as a practical concession to the reality that a trial judge
is not truly absent, and may in fact be constructively present, when he
or she is off the bench but able to listen and participate in proceedings
from a nearby anteroom." 673 N.E.2d at 1044. Similarly, Slaughter v.
United States, 82 S.W. 732, 737-738 (Ct. App. Indian Terr. 1904), and Graves
v. People, 75 P. 412, 413-415 (Colo. 1904), cited Pet. 12, rest in part
on the fact that the judge was unavailable to rule on contested motions,
and in any event pre-date Chapman v. California, 386 U.S. 18 (1967), the
case in which this Court made it clear that even constitutional errors are
subject to harmless-error review. See id. at 42 (Stewart, J., concurring)
(until Chapman, Court had "steadfastly rejected any notion that constitutional
violations might be disregarded on the ground that they were 'harmless'").
And Turbeville v. State, 56 Miss. 793 (1879), cited Pet. 12, does not support
petitioner's claim of conflict at all. The court there, like the courts
here, held that the trial judge's absence from bench during closing argument
was not reversible error where the judge "remain[ed] within hearing
of counsel" and "able * * * to assert his authority." 56
Miss. at 799.
2 Indeed, prior defendants have generally argued the opposite -i.e., not
that the judge's absence implies that the closing is trustworthy, but rather
that it implies that the closing is not worthy of attention. In United States
v. Mortimer, for example, the defendant claimed that the judge's absence
during defense counsel's closing may have caused the jury to "infer[]
that the defense was not worth listening to." 161 F.3d at 242.