UNITED STATES OF AMERICA, PETITIONER V. ROBERT PAUL GAGNON, ET AL.   No. 84-690   In the Supreme Court of the United States   October Term, 1984   The Solicitor General, on behalf of the United States, petitionsfor a writ of certiorari to review the judgment of the United StatesCourt of Appeals for the Ninth Circuit in this case.   Petition for a Writ of Certiorari to the United States Court ofAppeals for the Ninth Circuit                       PARTIES TO THE PROCEEDING   In addition to the parties shown in the caption, Pedro Valenzuela,Donald P. Storms, and Glenn E. Martin were appellants below and arerespondents herein.            TABLE OF CONTENTS   QUESTION PRESENTED   PARTIES TO THE PROCEEDING   Opinion below   Jurisdiction   Rules involved   Statement   Reasons for granting the petition   Conclusion   Appendix A   Appendix B   Appendix C   Appendix D                             OPINION BELOW   The opinion of the court of appeals (App., infra, 1a-15a) isreported at 721 F.2d 672.                             JURISDICTION   The judgment of the court of appeals was entered on December 8,1983.  A petition for rehearing was denied on August 29, 1984 (App.,infra, 16a-17a).  The jurisdiction of this Court is invoked under 28U.S.C. 1254(1).                            RULES INVOLVED   Rules 43 and 52 of the Federal Rules of Criminal Procedure are setout at App., infra, 23a-24a.                          QUESTIONS PRESENTED   1. Whether respondents' rights to be present at trial under theConstitution or Fed. R. Crim. P. 43 were violated by the trial court'sin chambers interview of a juror, in the presence of defense counsel,where respondents neither requested to attend the interview personallynor objected to the proceeding or its outcome.   2. Whether an error of this sort (if it was error) may be presumedto be so prejudicial to the defense that it constitutes reversibleerror even in the absence of an objection at trial or any concretedemonstration of prejudice.                               STATEMENT   Following a jury trial in the United States District Court for theDistrict of Arizona, respondents were convicted on all counts withwhich they were charged:  one count of conspiracy to possess cocainewith intent to distribute it, in violation of 21 U.S.C. 846, andvarious counts of possession of cocaine with intent to distribute it,in violation of 21 U.S.C. 841.  /1/ Respondent Gagnon was sentenced toconcurrent five-year terms of imprisonment to be followed by afive-year special parole term.  Respondent Valenzuela was sentenced toconcurrent 18-month terms of imprisonment to be followed by athree-year special parole term.  Respondent Storms was sentenced toconcurrent ten-year terms of imprisonment to be followed by concurrentfive-year special parole terms;  he was also fined $10,000.Respondent Martin was sentenced to a four-year term of imprisonmentand fined $2000 on the conspiracy count;  the sentences on his twopossession convictions were suspended in favor of a five-year term ofprobation to run consecutively to the terms of incarceration.  /2/ Thecourt of appeals reversed all convictions.  App., infra, 1a-15a.   1. The evidence at trial showed that from October 1979 throughOctober 1980, respondents were part of a large-scale cocainedistribution scheme centered in Tucson, Arizona.  In broad outline,the scheme operated as follows:  [John Doe] the hub of theconspiracy in Tucson, traveled frequently to Florida, where heobtained cocaine from Alvaro Becerra.  He then sold the cocainethrough several distributors in Tucson, who in turn had their owncustomers.  Respondents Martin and Gagnon were two of [John Doe]distributors, but as the scheme progressed, respondent Storms became [John Doe]  principal distributor.   In October 1979, [John Doe] was introduced to Becerra and informedthat Becerra could provide large quantities of cocaine (Tr. 84-85).For a down payment of approximately $4500, Becerra provided [John Doe]with a half kilo of cocaine (Tr. 86).  /3/ After he returned toTucson, [John Doe] showed the cocaine to respondent Gagnon.  Gagnonexamined the cocaine with a microscope and, satisfied with itsquality, agreed to find buyers for it.  Tr. 87.   Subsequently, Gagnon introduced [John Doe] to Donald Tore Jensen.  /4/Using a "hot box" (a device for testing the quality of cocaine bydetermining the termperature at which it melts), Jensen tested thequality of the cocaine and then agreed to sell it.  Tr. 89-90.  Jensenin turn introduced [John Doe] to other buyers, respondent Martin and WesLundy.  [John Doe] supplied Martin and Lundy with cocaine on consignment,and the next day they paid him $14,000 from their sale proceeds.  Tr.91-94.  [John Doe] gave respondent Gagnon and Jensen each one ounce ofcocaine in payment for introducing him to the buyers (Tr. 93).  /5/   In November, respondent Gagnon contacted [John Doe] and said that hehad Phoenix buyers who wanted to buy five kilos of cocaine (Tr. 100,103, 104-105).  [John Doe] notified Becerra, who personally deliveredthree kilos of cocaine to Tucson (Tr. 105-106, 107;  CR212).  /6/ WhenGagnon's buyers did not appear, the conspirators contacted Jensen, whocalled respondent Martin and Lundy.  Martin arrived with $10,000.  Tr.110-111.  Then, because Martin and Lundy had sold only a half kilo andthe conspirators still had a substantial quantity of cocaine to sell,Jensen contacted respondent Storms.  After testing a sample of thecocaine, Storms paid [John Doe], Becerra, and Jensen $29,500 for about ahalf kilo.  Tr. 111-114.  /7/   The next day, respondent Storms telephoned to report that he hadbuyers arriving from Seattle with money to purchase a half kilo ofcocaine.  Storms, Becerra, and [John Doe] met at the Tucson airport.Storms met the buyers' plane and brought them to the airport parkinglot, where they paid about $26,000 for a half kilo of cocaine.[John Doe] and respondent Storms received six ounces of cocaine as theirpayment, and Storms sold it for them.  Tr. 115-117.  /8/   During the next several months, some 10 one-kilo shipments ofcocaine were made from Becerra in Florida through [John Doe] torespondent Storms for sale.  [John Doe] delivered Becerra's paymentspersonally or transmitted them by air transport disguised as printedmatter.  Tr. 117-119, 122, 124-128.   Two more transactions occurred at the end of May 1980.  On May 29,[John Doe] sold Storms two kilos of cocaine he had brought from Miami.Tr. 151-152.  When Storms made partial payment of $105,000 the nextday, he told [John Doe] he needed three more kilos.  [John Doe] immediatelyflew to Florida for the cocaine and returned, accompanied by Becerra.Storms later paid $180,000 for the shipment.  Tr. 153-155, 157-158;CR401-406.  /9/   The last two sales occurred in July 1980. [John Doe] brought a kiloof cocaine to Tucson, gave it to Storms for sale, and transmittedabout $60,000 to Becerra by an air express package service (Tr.159-161).  /10/ Shortly afterward, on behalf of Becerra (hisbrother-in-law) respondent Valenzuela delivered three kilos of cocaineto Storms.  For this shipment, Becerra received $175,000 in threeinstallments, one of which Valenzuela delivered on the return trip.Tr. 162-166.  /11/   2. During the first day of this five-day trial, one of the jurors,Garold Graham, observed respondent Gagnon sketching portraits ofmembers of the jury.  He became concerned and informed the bailiff,who then informed the trial judge.  Out of the presence of the jury(see Tr. 177), the court told Gagnon and his attorney that it was"very improper for a defendant to draw pictures of a jury whilethey're sitting in the box" and confiscated the sketches.  App.,infra, 18a;  Tr. 188.   Respondent Gagnon's attorney requested the court to interview jurorGraham to determine whether his concern over the incident might "be inthe nature of prejudice against Mr. Gagnon." App., infra, 19a;  Tr.188-189.  /12/ The trial judge agreed.  In open court (though stillout of the presence of the jury), she announced (App., infra, 19a;Tr. 189):  "I will talk to the juror in my chambers, and make adetermination.  We'll stand at recess." The transcript reveals thatrespondents and their counsel were present in the courtroom at thattime (Tr. 100).   A transcript of the in-chambers conference, which is reprinted infull at App., infra, 19a-22a, was prepared and made available to allparties.  App., infra, 5a.  Respondent Gagnon's attorney was presentand participated in questioning the juror.  None of the otherattorneys for the defendants or the government requested to be presentor attended;  nor did any of the defendants request to be personallypresent.  /13/   At the conference, the trial judge explained to juror Graham thatGagnon is an "artist" and that the sketching was "just one of thosethings that happened.  The Court has stopped it.  It won't continue."App., infra, 20a;  Tr. 189-190.  She then asked the juror whether theincident would "affect you in any way." App., infra, 20a;  Tr. 190.The juror responded (ibid.):      As far as any judgment on what's going on, it doesn't affect me.       I just thought that perhaps because of the seriousness of the      trial, and because of -- whichever way the deliberations go, it      kind of -- it upset me, because -- of what could happen      afterwards.The judge then inquired whether "it upset you to the extent that youcouldn't judge Mr. Gagnon fairly." The juror responded, "No." Thejudge pursued the matter, and juror Graham repeatedly avowed that hecould be fair to everyone concerned.  Ibid.   Graham informed the judge and defense counsel that one other jurorhad mentioned that he had noticed Gagnon's sketching, but that thejuror "didn't know what it was." App., infra, 20a;  Tr. 191.  No otherjurors had mentioned observing the incident.  App., infra, 21a;  Tr.191.   At this juncture, the trial judge asked Gagnon's attorney whetherhe was "satisf(ied)" with the results of the interview.  The attorneyposed two questions to juror Graham:  whether his conversation withthe bailiff had taken place in front of other jurors, and whether theincident would "prejudice you in any way against Mr. Gagnon." Grahamassured the attorney that the conversation with the bailiff was in thehallway, away from the other jurors, and that he would not beprejudiced against Gagnon.  App., infra, 21a;  Tr. 191-192.   On the basis of this interview, the trial judge concluded not todismiss the juror;  she instructed him not to discuss anything aboutthe matter with the other jurors.  She then asked defense counselwhether the outcome of the conference was "agreeable with you." App.,infra, 21a-22a;  Tr. 192.  Gagnon's attorney replied, "Yes," and theconference was completed.  Ibid.  Neither then nor at any other timedid any of the attorneys for respondents move to disqualify jurorGraham or the other juror who witnessed the sketching.  Nor was anyobjection made to conducting the conference in the absence of thedefendants.   3. The court of appeals reversed the convictions on the ground(App., infra, 6a-7a) that respondents' right "to be present duringcommunications between the judge and the jury," grounded in theConstitution, principles of jury trial, and Fed. R. Crim. P. 43, wasviolated by the conference with juror Graham.  The court held thatrespondents had not waived their right to be present at the conferenceby their failure to ask to attend.  Insofar as that right isconstitutionally based, the court held that the standard for waiver isthe "intentional relinquishment or abandonment of a known right orprivilege" test of Johnson v. Zerbst, 304 U.S. 458, 464 (1938) -- astandard the court held was not satisfied here.  App., infra, 11a.   The court of appeals rejected the government's argument thatrespondents, having failed to object to the conference at trial, couldnot raise the issue on appeal.  Although invoking the "plain error"exception of Fed. R. Crim. P. 52(b), the court made no finding thatthe procedure followed by the trial court had "affect(ed) substantialrights" of the accused, as Fed. R. Crim. P. 52(b) requires.  Itconcluded instead that "(a) criminal defendant's right to be presentat every stage of his trial is so fundamental that, in certaincircumstances, its violation must be noticed by a reviewing courtregardless of a failure to raise the issue below." App., infra, 11an.2(citing Rogers v. United States, 422 U.S. 35, 41 (1975)).   Finally, the court of appeals found that the infringement ofrespondents' personal right to be present at the conference was notharmless beyond a reasonable doubt, on the ground that "(t)he presenceof the defendants was necessary in order to safeguard anotherconstitutional right -- the right to an impartial jury" (App., infra,13a).  While "unable to say on this record that the right to animpartial jury was infringed," the court found that it could not "saywith assurance that the absence was harmless." Id. at 13a-14a.   Judge Skopil dissented (App., infra, 14a-15a).  He would have heldthat respondents' interests were adequately represented by Gagnon'scounsel, and that the conference with the juror thus constitutedharmless error.  "It is difficult to conceive of any value from thepresence of defendants and the remaining defense attorneys.  Theirquestions would have been mere surplusage to those posed by (Gagnon'sattorney) and the court." Ibid.  Indeed, Judge Skopil stated, "(t)headded presence of the defendants and their counsel would have been * ** quite possibly detrimental to their interest." Id. at 15a.                   REASONS FOR GRANTING THE PETITION   This Court and the courts of appeals have frequently been calledupon to address the consequences of communications between trial judgeand juror outside the presence of the defendant.  /14/ This is becausesuch communications, formal or informal, are common and oftenunavoidable.  As this Court recently noted, "(t)here is scarcely alengthy trial in which one or more jurors does not have occasion tospeak to the trial judge about something, whether it relates to amatter of personal comfort or to some aspect of the trial." Rushen v.Spain, No. 82-2083 (Dec. 12, 1983), slip op. 4.  It is important thatrules of appellate review in this area accommodate the exigencies oftrial practice as well as protect the substantial rights of theaccused.  An approach to these issues that "ignores the() day-to-dayrealities of courtroom life" will, as this Court observed,"undermine() society's interest in the administration of criminaljustice." Id. at 4-5.   This case involves a particularly innocuous form of conferencebetween judge and juror -- one in which defense counsel activelyparticipates and the conference is transcribed for the record.  Thecontrast between the reasonableness of the procedure and the sweepingand unrealistic terms of the decision below is, therefore, striking.The court of appeals held that any communication between judge andjuror in the absence of the defendant -- even if defense counsel ispresent and participates -- is in violation of Fed. R. Crim. P. 43 andthe Constitution unless the defendant has, in advance, specificallyindicated his "willingness to be absent" (App., infra, 10a);  thecourt also held that the potential effects of such a communication areinherently so serious that an appellate court is required to reverseeven when the defendant failed to lodge an objection at trial andthere is no finding of specific prejudice to the defense.   The decision below is in conflict with decisions of this Court andnumerous courts of appeals.  It establishes so capricious a standardas to invite -- even require -- needless reversals in scores ofcriminal cases where defense counsel (but not the defendant) has fullyparticipated in all phases of trial, where the defendant has neitherrequested to be present at nor objected to the results of conferencesbetween judge and juror, and where there is no conceivable prejudicialimpact on the outcome of the trial.  It has distorted the requirementsof Fed. R. Crim. P. 43 and the Constitution and has virtuallyeliminated the requirement for a timely objection.  We submit that thedecision warrants review by this Court.   1. a. In Rushen v. Spain, supra, this Court left open the questionwhether a criminal defendant's constitutional right to be present attrial was violated when the trial court, with no notice to counsel andin the absence of both counsel and defendant, questioned a juror aboutthe possibility of prejudice.  Slip op. 3-4 n.2.  In a concurringopinion, Justice Stevens commented (slip op. 4):         I think it quite clear that the mere occurrence of an ex      parte conversation between a trial judge and a juror does not      constitute a deprivation of any constitutional right.  The      defense has no constitutional right to be present at every      interaction between a judge and a juror, nor is there a      constitutional right to have a court reporter transcribe every      such communication.This case presents the question whether an in-chambers conferencebetween trial judge and juror on the possibility of prejudice,conducted on the record and with full participation by defensecounsel, violates a defendant's constitutional rights.  We submit itdoes not.  It also presents the parallel question under Fed. R. Crim.P. 43.   As the court of appeals recognized (App., infra, 5a-6a), the rightto be present at trial has two sources in the Constitution, theConfrontation Clause and the Due Process Clause.  The former obviouslyhas no application to this case since a conference between judge andjuror does not implicate the defendant's right "to be confronted withthe witnesses against him." U.S. Const. Amend. VI;  Snyder v.Massachusetts, 291 U.S. 97, 107 (1934);  see Rushen v. Spain, slip op.8 n.8 (Stevens, J., concurring);  Polizzi v. United States, 550 F.2d1133, 1138 (9th Cir. 1976).   The due process right to be present is more complicated.  As thecourt of appeals recognized (App., infra, 7a), the right "is notabsolute." This Court formulated the right in Snyder, 291 U.S. at105-106, as follows:  "the defendant has the privilege under theFourteenth Amendment to be present in his own person whenever hispresence has a relation, reasonably substantial, to the fulness of hisopportunity to defend against the charge." In other words, the DueProcess Clause does not "assure() the privilege of presence whenpresence would be useless, or the benefit but a shadow." Id. at106-107.  See also Faretta v. California, 422 U.S. 806, 819 n.15(1975) (the accused "has a right to be present at all stages of thetrial where his absence might frustrate the fairness of theproceedings");  Rushen v. Spain, slip op. 8 n.8 (Stevens, J.,concurring) ("we have viewed a potential for prejudice as a necessaryelement of a violation of the right to be present").   Here, the conference with the juror was conducted at the request ofrespondent Gagnon's attorney, in his presence, with his activeparticipation, and to his full satisfaction.  There is no reason tosuppose that Gagnon's presence would have contributed to the interview-- and indeed every reason why competent counsel would advise a clientagainst participating in such a conference.   Only a trained attorney could be expected to be able to evaluatethe trial court's questions to the juror and the juror's responses inlight of legal standards governing juror bias.  Only a trainedattorney would be in a position to propound additional questions tothe juror (as Gagnon's attorney found necessary here).  Gagnon couldhave contributed little, if anything, to this process.  And even ifGagnon were dissatisfied with the conduct of the conference, he hadaccess to transcripts and could have proposed additional questions orrequested dismissal of the juror at a later time if he were soinclined.  Cf. Snyder, 291 U.S. at 112-113.   Indeed, Gagnon's presence at the conference would have been worsethan useless.  The very purpose of interviewing the juror was todetermine whether the effect on him of seeing Gagnon making a sketchof the jurors would undermine his fairness and impartiality.  Whatcould be more inhibiting -- more likely to stifle candid responses --than the presence of Gagnon himself at the conference?  The apparentbasis for concern about the juror's impartiality was that the jurormight fear that Gagnon could identify, and thus retaliate against, thejuror after the trial (App., infra, 8a).  It is unlikely that thejuror, if he entertained such fears, would express them frankly ifGagnon were sitting there.   The court of appeals' sole suggestion as to why Gagnon's presenceat the juror interview might have been useful is, as another courtsaid in similar circumstances, "fancifully remote." Ware v. UnitedStates, 376 F.2d 717, 718 (7th Cir. 1967).  Pointing out that jurorGraham had indicated that another juror had noticed Gagnon's sketchingactivity, the court stated (App., infra, 9a):      Had Gagnon been present, he could have gauged the possibility of      whether, given the distance and angle of the second juror's      seating relative to himself, that second juror might have seen      or guessed the subject of the pencil sketches.However, any calculations of this sort could as easily have beenperformed by Gagnon's attorney as by Gagnon himself.  /15/ Moreimportantly, if there had been any serious concern about the secondjuror, the more logical course would have been to request an interviewwith him.  That neither trial court nor defense counsel considered itnecessary or desirable to question the second juror strongly suggeststhat the matter was of little importance.  Further, there is littleconnection between Gagnon's hypothetical calculations and his presenceat the conference.  Transcripts of the conference were made availableto all of the parties;  had Gagnon thought it useful to makecalculations on the basis of juror Graham's answers, or to inquirefurther about the second juror, he was free to do so.  He was nothandicapped by his absence.  See Snyder, 291 U.S. at 109.   Any advantage to Gagnon's co-defendants, respondents Valenzuela,Storms, and Martin, of personally attending the juror interview iseven more farfetched.  Only Gagnon had engaged in sketching thejurors;  the other defendants were not involved.  It is clear fromdefense counsel's own words (App., infra, 19a;  Tr. 188-189) that theonly purpose of the juror interview was to investigate possible biasagainst respondent Gagnon.  It is therefore not surprising that onlyGagnon's counsel attended the conference.  In any event, the presenceof Gagnon's counsel sufficed to protect the interests of the otherrespondents, which were plainly not at all different from -- but onlya more attenuated form of -- those of Gagnon.  See United States v.Ford, 632 F.2d 1354, 1379 (9th Cir. 1980), cert. denied, 449 U.S. 961(1981).  /16/   Under the court of appeals' hypersensitive approach to potentialprejudice, it is difficult to see how the right of presence could everbe thought to be "useless, or the benefit but a shadow." Snyder v.Massachusetts, 291 U.S. at 106-107.  It is tantamount to a per serule.  The court of appeals' approach thus conflicts with that takenby this Court.  This Court has not found a due process violation inthis context merely because a possibility of benefit to the defendantfrom presence at a trial proceeding, however slim, can behypothesized.  Indeed, in Snyder, the Court acknowledged that, if thedefendant had been present when the jury viewed the scene of thecrime, he might have been able to give valuable "suggestion or advice"to his attorney about matters the attorney should call to the jurors'attention.  291 U.S. at 113.  That hypothetical possibility, however,was not enough to support a finding of a due process violation.  Thequestion is whether there is a "reasonably substantial" relation, onthe facts of the case, between the right to be present and the abilityto obtain a fair trial.  Id. at 106.  The relation here is far fromsubstantial;  indeed, the potential for prejudice to respondents hereis more remote even than that in Snyder.   The analysis under Rule 43 presents a similar question.  Thelanguage of the Rule, if taken literally, might be understood torequire the trial court to permit the defendant to be present duringany communications with a juror (except those explicitly exempted bythe Rule), even when the defendant's presence would impair the court'sability to guarantee a fair trial to all parties.  Such an extremeinterpretation, however, finds no support in the advisory committeenotes to the Rule or in precedents interpreting it.  Where the courtdetermines that a conference with a witness or juror must be conductedoutside the presence of the defendant in order to obtain frankresponses to serious questions, Rule 43 does not prevent it.  Cf.LaChappelle v. Moran, 699 F.2d 560, 565 (1st Cir. 1983).  /17/ Thus,even though the scope of Rule 43 may be somewhat "broader" than thedue process right to be present, as the court of appeals held (App.,infra, 9a), the court nonetheless erred in finding a violation of Rule43 here.  /18/ Not only was there no substantial prejudice torespondents' rights, but, we submit, the trial court would have beenfully justified in denying a request by respondents to attend theconference, had it been made.   b. Even assuming that respondents would have had a right, uponrequest, to attend the juror conference, there remains the questionwhether their failure to assert that right constituted a waiver.  Thecourt of appeals' answer to that question conflicts with decisions ofthis Court and other courts of appeals and with the terms of Rule 43.   The court of appeals held (App., infra, 11a) that the standard forwaiver of the right to be present is that enunciated in Johnson v.Zerbst, 304 U.S. 458, 464 (1938) ("intentional relinquishment orabandonment of a known right or privilege").  Since there was noevidence in the record directly establishing that respondents had madea conscious, informed decision to absent themselves from the jurorconference, the court of appeals could not "conclude that theyknowingly and intelligently waived their constitutional right to bepresent" (App., infra, 11a).   We note initially that this analysis depends for its validity onthe premise, shown to be erroneous in the preceding discussion, thatany right the respondents had to attend the conference wasconstitutionally based.  But even were that premise correct, the wrongwaiver standard was employed by the court of appeals.  Indeed, itsholding is in direct conflict with Taylor v. United States, 414 U.S.17, 19-20 (1973).  There, the Court held that the Johnson v. Zerbststandard is inapplicable to a defendant's waiver of the right to bepresent at trial, even for portions as critical as the taking ofevidence.  The voluntary absence of the defendant from the proceeding,without more, constitutes a valid waiver.   There are sound reasons not to apply the Johnson v. Zerbst standardin situations of this kind.  The benefit of some rights (the right tobe present among them) may be realized as well by waiving them as byasserting them.  The question before Gagnon and his attorney was notwhether Gagnon should "relinquish" or "abandon" a valuableconstitutional right, but whether it was more in Gagnon's interest tobe absent from or present at the juror interview.  "Under ouradversary system, once a defendant has the assistance of counsel thevast array of trial decisions, strategic and tactical, * * * restswith the accused and his attorney." Estelle v. Williams, 425 U.S. 501,512 (1976).   Estelle v. Williams presents a close analogy to this case.  There,the Court considered whether a criminal defendant who does not ask towear civilian clothes is denied due process of law by trial in prisongarb.  Observing that "it is not an uncommon defense tactic to producethe defendant in jail clothes in the hope of eliciting sympathy fromthe jury" (425 U.S. at 508), the Court held that a defendant isrequired to object to being tried in jail garments (ibid.).  The Courtexpressly rejected the notion that a "strategic and tactical" decisionof this sort, made by a defendant advised by competent counsel, is tobe measured against the Johnson v. Zerbst standard for intentionalrelinquishment of a constitutional right.  425 U.S. at 508 n.3.Accordingly, the Court reasoned, the trial judge is not required to"ask() the (defendant) or his counsel whether he was deliberatelygoing to trial in jail clothes." The failure to make an objection, forwhatever reason, is "sufficient to negate the presence of compulsionnecessary to establish a constitutional violation." Id. at 512-513.   The answer here follows a fortiori from Estelle.  No less clearly"strategic and tactical" than the decision to stand trial in prisongarb is the defendant's decision not to attend a juror conference.See Polizzi v. United States, 550 F.2d at 1137.  As noted at pages13-14, supra, there are persuasive (often compelling) reasons why acriminal defendant would prefer to be absent rather than to chill thejuror's willingness to answer candidly.  A defendant's failure toinvoke the right to attend, or to object to the proceeding, istherefore sufficient to establish that his absence was voluntary./19/   The analysis is unchanged when the focus shifts to Rule 43.  Rule43(a) provides that "(t)he defendant shall be present at * * * everystage of the trial * * * except as otherwise provided by this rule."Rule 43(b) provides that "the defendant shall be considered to havewaived his right to be present whenever a defendant, initiallypresent, (1) voluntarily absents himself after the trial has commenced* * * ." Here, respondents plainly waived their right to be presentwhen they did not attend, and made no request to attend, the jurorinterview.   The court of appeals rejected the government's argument thatrespondents had waived their Rule 43 right to be present, on theground that there was no indication in the record "of whether Gagnonor the other defendants expressly or impliedly indicated theirwillingness to be absent from the conference" (App., infra, 10a)./20/ On this issue, the court declared it irrelevant that none of thedefendants asked to attend.  /21/ The holding below is thus contraryto the plain language of Rule 43 and to decisions of this Court.   By its terms, Rule 43(b) provides that a defendant "shall beconsidered to have waived his right to be present" (emphasis added) ifhe "voluntarily absents himself after the trial has commenced." Deedsare all;  there is no additional requirement that the defendantexpress or imply anything about his "willingness to be absent." Nor isthe trial court required to address specific inquiries to thedefendant to ensure that he was aware of, and voluntarily waiving, hisright.  On these matters, as with the vast majority of questions thatarise during trial, our system relies on counsel to assert thedefendant's rights where appropriate.  /22/   Accordingly, most courts of appeals to consider the issue haveconcluded that a defendant waives his right to attend a conference atthe bench or in chambers if he does not object or request to attend.See, e.g., United States v. Washington, 705 F.2d 489, 497 (D.C. Cir.1983);  United States v. Provenzano, 620 F.2d 985, 998 (3d Cir.),cert. denied, 449 U.S. 899 (1980);  United States v. Bufalino, 576F.2d 446, 451 (2d Cir.), cert. denied, 439 U.S. 928 (1978);  UnitedStates v. Brown, 571 F.2d 980, 987 (6th Cir. 1978).  This conflictamong the circuits should be resolved.   2. Not only did respondents make no attempt to attend the jurorinterview;  they also made no objection to the proceeding when itoccurred or at any point during the trial.  Accordingly, even assumingthat respondents' rights under Rule 43 of the Constitution were infact violated under the circumstances of this case, the court ofappeals was not justified in reversing on that basis.  /23/ UnitedStates v. Frady, 456 U.S. 152, 163 & nn.13-14 (1982);  Estelle v.Williams, 425 U.S. at 508-509 & n.3;  see Br. for the United States at26-35, in United States v. Young, No. 83-469 (argued Oct. 2, 1984)./24/ Cf. Fed. R. Crim. P. 30.   The court below held, however, that the error could be noticedunder the "plain error" exception of Fed. R. Crim. P. 52(b) eventhough it had not been brought to the attention of the trial court.But the court did not make the finding of substantial prejudice, or"miscarriage of justice," necessary to justify reversal under Rule52(b).  See Frady, 456 U.S. at 163 & nn.13-14.  The court of appealsheld that "(a) criminal defendant's right to be present at every stageof his trial is so fundamental that, in certain circumstances, itsviolation must be noticed by a reviewing court regardless of a failureto raise the issue below" (App., infra, 11a n.2).  By this, the courtapparently meant that the right to be present is so fundamental thatin all circumstances its violation must be noticed by the appellatecourt.  /25/ That holding is plainly wrong, and is in direct conflictwith Rushen v. Spain, supra, Rogers v. United States, 422 U.S. 35(1975), and numerous decisions by other courts of appeals.  /26/   In Rushen, this Court "emphatically" held (slip op. 3), incircumstances far more troubling than these, that an infringement onthe right to be present during communications between judge and jurormay have so little impact on the fairness of the trial that it isharmless error.  /27/ Put differently, a court of appeals may notpresume, on the basis of the nature of the right, that the error hadsufficient impact to justify reversal of a conviction.  Slip op. 3.It follows, a fortiori, that an infringement on the right to bepresent cannot be presumed to violate the "substantial rights of theaccused" or to be a "miscarriage of justice" -- standardssignificantly more exacting than the harmless error standard.   The court of appeal's abjuration of the "substantial prejudice"analysis under Rule 52(b) also conflicts with Rogers v. United States,supra.  There, the Court concluded that a reviewing court could noticean error that included a denial of the right to be present duringcommunications between judge and jury, in the absence of a timelyobjection, where the error was "fraught with potential prejudice" (422U.S. at 41).  /28/ In the absence of a finding of substantialprejudice -- or so Rogers would indicate -- there would be no basisfor reaching the issue.   It is difficult to see how the court of appeals could haveconcluded that there was a miscarriage of justice here, had it engagedin an appropriate "plain error" analysis.  As noted, the presence ofrespondents at the juror interview would have been useless or worsethan useless.  The court of appeals' own suggestion as to prejudice,as has been shown, was fanciful.  And finally, the underlying issue --the impartiality of the jurors who observed respondent Gagnonsketching -- was resolved by the trial court, on the basis of aninterview with the principal juror in question.  The question of jurorimpartiality is heavily dependent on the trial court's assessment ofthe sincerity of the juror's answers.  There is nothing in the recordthat would justify an appellate court in overturning the trial court'sconclusion that the jury panel would not be tainted by the sketchingincident.  See Rushen v. Spain, slip op. 6.  This is especially truesince defense counsel expressly agreed with the trial court's decisionat trial.   Many courts of appeals, in factual circumstances similar to orworse than these, have concluded that there was no prejudice to thedefendant from a denial of his right to be present at every stage oftrial.  The reasoning, as well as the result, of these decisions is indirect conflict with the decision below.  /29/ See, e.g., UnitedStates v. Brown, 571 F.2d 980, 987 (6th Cir. 1978) (defendant'sabsence from conference in chambers regarding dismissal of juror wasnot prejudicial given defense counsel's presence and the availabilityof a transcript of the proceeding;  furthermore, the issue was waivedby failure to object);  Henderson v. Lane, 613 F.2d 175, 179 (7thCir.), cert. denied, 446 U.S. 986 (1980) (defendant's absence fromexamination of alternate jurors was harmless because counsel waspresent, proceeding was on the record, and defendant had been presentduring original jury selection);  United States v. Washington, 705F.2d 489, 498 (D.C. Cir. 1983) (defendant's absence from colloquy atbench with potential jurors was harmless because counsel was presentand took notes);  Nevels v. Parratt, 596 F.2d 344 (8th Cir. 1979)(defendant's absence from conference with juror concerning possiblemisconduct was harmless;  defense counsel participated in conference,no request for defendant to attend was made, and State had shown thatjuror in question remained impartial);  /30/ see also United States v.Walls, 577 F.2d 690, 697-699 (9th Cir.), cert. denied, 439 U.S. 893(1978) (defendant's absence from conference with juror harmlessbecause counsel was present, the conference was on record, and noobjection was raised).  The decision below conflicts even morestrikingly with decisions finding the absence of the defendant from astage of the proceeding harmless even though defense counsel was notpresent.  E.g., United States v. Yonn, 702 F.2d 1341, 1344-1345 (11thCir. 1983);  United States v. Dominguez, 615 F.2d 1093, 1094-1096 (5thCir. 1980);  United States v. Bufalino, 576 F.2d 446, 451 (2d Cir.),cert. denied, 439 U.S. 928 (1978).   The conclusion is inescapable that the convictions in this case forserious crimes involving hundreds of thousands of dollars in wholesalenarcotics trafficking were needlessly reversed.  Moreover, it isapparent that many future convictions could suffer the same fate underthe court of appeals' tortured understanding of the right to bepresent at trial and the defendant's lack of any obligation to assertthat right at a time when it could be accommodated.  This Courtrecently summarily reversed a Ninth Circuit decision that opened thegate to reversals on the basis of the right to be present, withoutregard to whether the supposed violations were prejudicial to thedefense.  Rushen v. Spain, supra.  The instant decision, from the samecourt of appeals, is in a similar vein, but with potentially morefar-reaching consequences.  /31/   It was in precisely the same context of a supposed infringement onthe right to be present that this Court stated in Snyder v.Massachusetts, 291 U.S. at 122:      There is danger that the criminal law will be brought into      contempt -- that discredit will even touch the great immunities      assured by the Fourteenth Amendment -- if gossamer possibilities      of prejudice to a defendant are to nullify a sentence pronounced      by a court of competent jurisdiction in obedience to * * * law,      and set the guilty free.                              CONCLUSION   The petition for a writ of certiorari should be granted.   Respectfully submitted.   Rex E. Lee      Solicitor General   Stephen S. Trott      Assistant Attorney General   Andrew L. Frey      Deputy Solicitor General   Michael W. McConnell      Assistant to the Solicitor General   Gloria C. Phares      Attorney   October 1984   /1/ Of the eight possession counts with which they were variouslycharged, respondents were convicted as follows:  Gagnon on one count(Count 3);  Valenzuela on one count (Count 13);  Storms on sevencounts (Counts 3, 4, 5, 8, 11, 12, and 13);  and Martin on two counts(Counts 2 and 3).   /2/ Nine others were indicted with respondents.  Alvaro Becerra,Timothy Pohlschneider, Gentry Neal, and John Cates pleaded guilty.The charges against Kevin Hynes, David Linquist, and Keith Mors weredismissed on the government's motion, and Hynes and Linquist testifiedfor the government at trial.  Donald Tore Jensen and Wes Lundy arefugitives.  [John Doe] pleaded guilty to a separate indictmentand testified for the government at trial.   /3/ One kilo equals 2.2 pounds.   /4/ Respondent Gagnon, who claimed an alibi, was the only defendantto testify at trial.  Although he denied any narcotics transactionswith [John Doe], he admitted that he owned a type of microscope(stereoscope) and that he had introduced [John Doe] to Jensen (Tr. 709,714).   /5/ These events in October 1979 form the basis for Count 2.   /6/ "CR" refers to the district court clerk's record of exhibits.   /7/ These events form the basis for the charge against respondentMartin in Count 3 and respondent Storms in Count 4.   /8/ These events form the basis for Count 5.   /9/ The May 29 transaction formed the basis for Count 8, and theMay 30 transaction formed the basis for Count 11.   /10/ This transaction formed the basis for Count 12.   /11/ This transaction formed the basis for Count 13.   /12/ None of the other defendants expressed concern over theincident.   /13/ At oral argument in the court of appeals, Gagnon's attorneystated that he had been invited to the conference through a note fromthe judge delivered by the bailiff.  App., infra, 10a n.1.   /14/ See, e.g., Rushen v. Spain, No. 82-2083 (Dec. 12 1983);Rogers v. United States, 422 U.S. 35 (1975);  United States v.Betancourt, 734 F.2d 750 (11th Cir. 1984);  United States v.Silverstein, 732 F.2d 1338 (7th Cir. 1984), petitions for cert.pending, Nos. 84-5492 and 84-5500;  United States v. Head, 697 F.2d1200 (4th Cir. 1982), cert. denied, No. 82-1655 (June 20, 1983);United States v. Ronder, 639 F.2d 931 (2d Cir. 1981);  Henderson v.Lane, 613 F.2d 175 (7th Cir.), cert. denied, 446 U.S. 986 (1980);Nevels v. Parratt, 596 F.2d 344 (8th Cir. 1979).   /15/ Interestingly, much of the activity undertaken by counsel andthe jurors in the absence of the defendants in Snyder consisted ofevaluating distances and angles at the scene of the crime.  291 U.S.at 103-104.  It apparently did not occur to this Court that suchcalculations might be better performed by the defendants personally.   /16/ The court of appeals suggested (App., infra, 8a) that theprejudice against Gagnon "may be extended to the (other defendants),"in light of the vicarious liability of co-conspirators.  However, inthis prosecution, each of the defendants was charged and convictedonly in connection with criminal activity in which the governmentproved he took a direct part.  See pages 3-5, supra.  There was noPinkerton charge.   /17/ LaChappelle is a compelling illustration of this point.There, the trial judge held a private discussion, on the record, witha 16-year-old complaining witness in a rape prosecution against herfather, concerning her embarrassment over describing her father'ssexual climax during the incident.  In open court, the witness hadbeen so embarrassed that she refused to answer defense counsel'squestions.  The defendant requested to be present at the conference,but his request was denied and his objection overruled.  AlthoughLaChappelle arose on habeas corpus review of a state court conviction,and the constitutional standard thus applied, it is difficult tobelieve that Rule 43 would have required the witness's father to bepermitted to attend had the prosecution been in federal court.  Seealso United States v. Howell, 514 F.2d 710, 714 (5th Cir.), cert.denied, 423 U.S. 914 (1975) (defendant properly excluded frominterview with juror who had been offered a bribe, and from subsequentdiscussion with counsel);  United States v. Ruiz-Estrella, 481 F.2d723 (2d Cir. 1973) (defendant properly excluded from portion ofsuppression hearing dealing with secret profile).   /18/ The pertinent difference between Rule 43 and theconstitutional right to be present at conferences between judge andjuror is that the defendant may invoke the latter only when hispresence would be useful to his defense, while the former creates astrong presumption in favor of the defendant's presence.  Neither Rule43 nor the Constitution guarantees the defendant's right to be presentwhere other legitimate interests would be infringed.  The court ofappeals failed to recognize any limits on the Rule 43 rightwhatsoever, and thus erroneously reversed these convictions and set adamaging precedent for future cases.   /19/ As in Estelle, 425 U.S. at 512 n.9, it is irrelevant whetherthe decision not to attend the conference was "a defense tactic orsimply indifference.  In either case, respondent's silence precludesany suggestion of compulsion."   /20/ The court of appeals apparently thought that this standard isless "stringent" than the Johnson v. Zerbst standard it applied to theconstitutional right to be present at trial.  App., infra, 11a.However, as this Court observed in Estelle, 425 U.S. at 512, torequire the trial court to make inquiries regarding the voluntarinessof an act would be equivalent to imposing the Johnson v. Zerbststandard.  In any event, this Court has applied the same analysis towaiver of the right to be present at trial under both Rule 43 and theConstitution, without distinction.  Failure by a criminal defendant,represented by competent counsel, to invoke his right to be present ata conference between judge and juror constitutes a valid waiver.   /21/ The court stated that respondents' failure to object wasrelevant to the question of prejudice, but not to the question ofvoluntary absence, or waiver.  App., infra, 10a-11a.   /22/ The advisory committee notes to Rule 43 confirm this analysis. The notes state that "voluntary absence may constitute a waiver evenif the defendant has not been informed by the court of his (right) toremain during the trial."   /23/ It seems clear that the contemporaneous objection requirementapplies to a supposed infringement of the right to be present attrial.  Had the error been called to the attention of the trial judgebefore the end of trial, he could have cured any possible prejudice bysubstituting the alternate jurors for the two jurors who observedrespondent Gagnon sketching.  The obligation to afford the trial courtan opportunity to remedy an error at trial is the principal basis forthe contemporaneous objection requirement.  Estelle v. Williams, 425U.S. at 508 n.3.   But even assuming defendants were under no obligation to object inorder to preserve this issue for appeal, no reversible error resultedfrom the juror interview.  A denial of the right to be present attrial does not warrant reversal of a conviction unless it resulted inprejudice to the defense.  Rushen v. Spain, supra.  We believe thatthe court of appeals was cearly incorrect in its conclusion (App.,infra, 13a-14a) that respondents' absence from the juror interview wasnot harmless error.  Indeed, we believe their absence enhanced theirability to secure a fair trial before an impartial jury.  See pages13-14, supra.  In this connection, we would note that the court'sapplication (App., infra, 13a) of the constitutional harmless errorstandard to what we have shown above was at most a violation of Rule43 (see pages 16-17, supra) was in error.   /24/ Copies of our brief in Young have been provided to counsel forrespondents.   /25/ We can agree that, "in certain circumstances" (App., infra,11a n.2), the denial of the right to be present might well be sofundamental an error that it should be noticed by an appellate courteven in the absence of a timely objection.  See, e.g., Rogers v.United States, 422 U.S. 35, 41 (1975).  However, the court of appealsdid not, as its statement of the law would suggest, inquire whether infact there were any circumstances here (i.e., substantial prejudice tothe defense) that would warrant a finding of plain error.  Wetherefore interpret the court as holding that no finding ofsubstantial prejudice is required.   /26/ For an error to be "plain," it must be both obvious andsubstantially prejudicial.  Although the focus of the discussion tofollow is on the court of appeals' failure to make a finding ofsubstantial prejudice, we would also point out that the error (if itwas error) was far from obvious.  Indeed, our position is that it wasnot error at all.  See pages 12-22, supra.  Even if this Courtdisagrees, we would submit that the question of the correctness of thetrial court's actions is, at worst, a close one.   /27/ Both this case and Rushen involve conferences between thetrial judge and a juror without the defendant being present.  InRushen, however, no defense counsel was present;  indeed, thedefendants did not even find out about the conference until aftertrial (slip op. 2).  Here, by contrast, the conference was announcedin open court and attended by defense counsel.  Further, in Rushen, notranscript was made of the conference;  the defendants or a reviewingcourt therefore had no reliable means of knowing what transpired.Here, a transcript was prepared and available to all parties.  If theerror in Rushen could be held to be harmless, the error here, if any,could hardly be plain error.   Rushen was decided by this Court four days after the court ofappeals rendered the judgment below, but it was forcefully called tothe court's attention by the government's unsuccessful petition forrehearing.   /28/ In Rogers, the trial court, without notifying the defendant ordefense counsel, made a misleading written response to a query fromthe jury.  The possibility that the error affected the jury's verdictwas substantial.   /29/ Although the analysis of prejudice in the decisions discussedin text is sometimes under the rubric of "harmless error" rather than"plain error," that fact does not detract from the conflict in thecircuits.  If an error is so nonprejudicial that it is harmless, itobviously falls short of the stringent "miscarriage of justice"standard for finding plain error.  See United States v. Silverstein,732 F.2d at 1349.   /30/ On the issue of prejudice, the decision below also conflictswith United States v. Silverstein, 732 F.2d at 1348-1349 (defendant'sabsence from courtroom while the trial court formulated a response toa query from the jury not reversible error because defense counsel waspresent, no objection was made, and the outcome of the trial was notlikely affected).  Silverstein differs from the instant case in thatthe proceeding from which the defendants were absent was a conferencebetween trial court and counsel on an issue of law.  Such conferencesare expressly permitted to be held in the absence of the defendantunder Fed. R. Crim. P. 43(c)(3), and the convictions in Silversteincould have been affirmed on that ground.   /31/ In Rushen, the only issue was whether an assumed violation ofthe right to be present at trial was subject to a "harmless error"analysis.  Here, the question is whether criminal defendants will bepermitted to remain silent at trial, and then obtain reversal ofconvictions on the basis of insubstantial claims of prejudice.  Thedisruptive effect of the decision below could be significant.   APPENDIX