United States v. Joe Reyes, 2014 U.S. App. LEXIS 17260

Reyes appeals his conviction for one count of attempted bank robbery under 18 U.S.C. §2113(a).
He challenges (1) exclusion from eighteen side-bar jury-selection exchanges as violating the right to be present and (2) the substantive reasonableness of his sentence.
The district court conducted extensive voir dire with Reyes present; during side-bar conferences, Reyes largely stayed at the table, and rulings were made on whether to excuse jurors or apply challenges.
Evidence at trial included a threatening note, bank-teller testimony, surveillance footage, and Reyes’s recorded confession identifying him as the robber.
The jury convicted on count two (attempted robbery at Wells Fargo, Los Angeles); mistrials were declared on the other counts, and Reyes was sentenced to 125 months with 36 months consecutive to a state sentence, within the Guidelines range of 100–125 months.
The court concluded Rule 43 was violated as to Juror H’s voir dire but harmless, and held no constitutional violation regarding Reyes’s absence from the other side-bar exchanges; the sentence was not substantively unreasonable.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was Reyes’ absence from Juror H voir dire a Rule 43/constitutional violation?	Reyes argues exclusion from voir dire violated Rule 43(a)(2) and the Constitution.	The court contends the juror-questioning was a matter of law, not requiring Reyes’ presence.	Rule 43(a)(2) violation found for Juror H; constitutional rights not violated.
Did the district court’s exclusion from seventeen side-bar exchanges violate Rule 43 or the Constitution?	Excluding Reyes from all side-bar conferences breached Rule 43 and his rights.	Those exchanges involved questions of law; absence did not impair Reyes’s ability to defend.	No constitutional violation; Rule 43 exclusion proper as to seventeen exchanges.
Was the sentence substantively reasonable?	Sentence was at the high end and not adequately tailored to Reyes’s history and offense.	District court properly considered extensive criminal history, deterrence, and safety factors.	Sentence of 125 months with 36 months consecutive to state term affirmed.
Does the combination of Rule 43 error and harmless error analysis affect the outcome?	Harmless error only applies to Rule 43 violation.	Harm analysis supports upholding the conviction.	Rule 43 error harmless; no reversal.

United States v. Sherwood, 98 F.3d 402 (9th Cir. 1996) (voir dire review; abuse of discretion standard)
Campbell v. Wood, 18 F.3d 671 (9th Cir. 1994) (conscious right to be present; Seventh Amendment references)
Illinois v. Allen, 397 U.S. 337 (1960) (presence right; fundamental fairness)
Gagnon v. Scarpelli, 470 U.S. 522 (U.S. 1985) (ex parte juror judge interactions not per se violation)
Faretta v. California, 422 U.S. 806 (U.S. 1975) (right to self-representation; presence at trial stages)
Snyder v. Massachusetts, 291 U.S. 97 (U.S. 1934) (presence at voir dire not absolute; due process depends on fairness)
Bordallo, 857 F.2d 519 (9th Cir. 1988) (Rule 43 presence at jury drawing vs. voir dire; harmless error analysis)
Gonzales-Flores v. United States, 701 F.3d 112 (4th Cir. 2012) (definition of 'question of law' for Rule 43(b)(3))
Veatch, 674 F.2d 1217 (9th Cir. 1981) (defendant exclusion from pretrial conference; questions of law)
Fontenot, 14 F.3d 1364 (5th Cir. 1994) (peremptory challenges outside presence; plain error precedent)
Cohen v. Senkowski, 290 F.3d 485 (2d Cir. 2002) (prenarrative pre-screening not always constitutional)