United States v. Johnson, 677 F.3d 138

Johnson was convicted by a jury of cocaine distribution and possession with intent to distribute (Counts One–Two), using and carrying a firearm during a drug-trafficking offense (Count Three), and possession of a firearm by a felon (Count Four).
Controlled buys involved 8.76 grams of cocaine across two transactions; gun and $200 found on Johnson at arrest.
District Court conducted voir dire with open court then sidebar questioning; Johnson did not object to sidebar procedure.
Johnson argued Rule 43 violation and constitutional right to be present during voir dire; the court rejected the claim.
Johnson challenged the confidential informant’s non-disclosure, sufficiency of the firearm-for-offense evidence, and upward variance in sentence; the appellate court affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether sidebar voir dire violated Rule 43 and Johnson's presence.	Johnson contends it violated his right to be present.	Johnson argues presence at bench discussions was required.	No violation; waiver by failure to object; Rule 43 applies by waiver.
Whether the district court abused its discretion by denying disclosure of the confidential informant.	Johnson claims informant's identity was essential to defense.	State argues no substantial need shown under Roviaro.	No abuse; Johnson failed to show specific need under Roviaro.
Whether evidence supports possession of firearm in furtherance of drug offense.	Prosecution asserts evidence supports nexus between gun and drug trafficking.	Johnson contends insufficient nexus.	Substantial evidence supports the conviction under the Sparrow framework.
Whether upward variance in sentencing was reasonable.	Prosecution seeks within-guidelines upward adjustment.	Johnson challenges substantive reasonableness.	No abuse of discretion; factors supporting variance found.

Gonzalez v. United States, 553 U.S. 242 (U.S. 2008) (consent by counsel suffices for sidebar voir dire in felony trials; tactical decision)
United States v. Gagnon, 470 U.S. 522 (U.S. 1985) (waiver of presence at trial conferences based on knowledge and failure to object)
Florida v. Nixon, 543 U.S. 175 (U.S. 2004) (counsel consults with client; blanket require explicit consent is not required)
Taylor v. Illinois, 484 U.S. 400 (U.S. 1988) (principles of strategic decision-making by counsel)
Sherwood, 98 F.3d 402 (9th Cir. 1996) (waiver of presence during in-chambers voir dire)
Cardinal v. Gorczyk, 81 F.3d 18 (2d Cir. 1996) (waiver of Sixth Amendment right to observe bench conferences)
Bertoli, 40 F.3d 1384 (3d Cir. 1994) (failure to object permits waiver of Rule 43 rights)
Roviaro v. United States, 353 U.S. 53 (U.S. 1957) (informant identity disclosure when helpful to defense; burden on defendant to show need)
United States v. Sparrow, 371 F.3d 851 (3d Cir. 2004) (factors for determining possession in furtherance of drug offense)
Jiles, 658 F.2d 194 (3d Cir. 1981) (burden on defendant to show need for informant information)