UNITED STATES OF AMERICA, Aрpellee, v. GEORGE ALLEN, Defendant-Appellant.
Docket No. 13-4846-cr
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
June 3, 2015
August Term 2014 (Argued: November 4, 2014)
WALKER, LYNCH, and CHIN, Circuit Judges.
Appeal from a judgment of the United States District Court for the District of Vermont (Reiss, C.J.), convicting defendant-appellant of conspiring to set fires on public lands. Defendant-appellant contends that (1) the evidence at trial was insufficient to support his conviction because the government failed to prove a specific intent to set fires on federal property, and (2) the district court violated his rights by conducting a jury orientation outside his and his counsel‘s presence.
AFFIRMED.
MICHAEL K. BACHRACH, Law Office of Michael K. Bachrach, New York, NY,
CHIN, Circuit Judge:
The town of Wallingford, Vermont lies in the Otter Creek Valley, between thе Taconic and Green Mountains, at the foot of the Green Mountain National Forest (the “National Forest“). The National Forest encompasses some 400,000 acres of park land offering scenic natural attractions, including access to the Appalachian Trail and the Long Trail. Defendant-appellant George Allen (“Allen“), a volunteer firefighter and captain at the Wallingford Volunteer Fire Department (the “WFD“), appeals from a judgment entered in the United States District Court for the District of Vermont (Reiss, C.J.) on December 3, 2013, following a jury trial, convicting him of conspiring to set fires on public lands. As the evidence showed at trial, Allen and certain other members of the WFD were “bored,” and conspired to set fires because it gave them “something to do” -- they would respond to the calls to extinguish the fires.
On appeal, Allen contends that (1) the evidence at trial was insufficient to convict him of conspiracy to set fires on public lands, in violation of
We affirm.
STATEMENT OF THE CASE
A. The Facts
Because Allen challenges the sufficiency of the evidence to support his conviction, “we view the evidence in the light most favorable to the government, drawing all inferences in the government‘s favor and deferring to the jury‘s assessments of the witnesses’ credibility.” United States v. Hawkins, 547 F.3d 66, 70 (2d Cir. 2008) (internal quotation marks omitted).
In 2008, Allen was a volunteer captain in the WFD with a day job at an automotive tire shop in Rutland, Vermont. His brother, Jeff Allen, was Assistant Chief of the WFD, and their father, Warren Allen, was the Chief. A clique within the “Allen Hose Company,” as it was sometimes referred to at the time, had been causing problems within the WFD, with Allen and some of the younger line firefighters “freelancing” at the scene of fires, deviating from standard protocol, disrespecting officers, and throwing “temper tantrums.” S. App. at 111-12, 153.
Between January and May of 2008, a number of WFD firefighters became suspicious of the frequency and pattern of calls. There were twenty-four brush grass fires during a period when there might ordinarily be just one or two. Additionally, the fires occurred during damp weather that would not ordinarily be conducive to wildland fires; they were not near roads, where a stray cigarette or other human intervention might have been the cause; certain members of the WFD clique, including Allen, were almost always on the team that responded to the calls; and members of the clique began boasting that they had the fastest response time in the county, and that they were beating everyone else to the scene.
One of the co-conspirators, Matt Burnham, looked up to the Allen brothers and joined the WFD as a junior firefighter at the age of fourteen. He was eighteen or nineteen years old, and already a senior firefighter, when he began setting the fires, admittedly because he was “bored”
Another co-conspirator, Charlie Woods, joined the WFD junior firefighter program when he was fifteen years old, and was seventeen at the time of the 2008 fires. Like Burnham, he looked up to Allen and loved being a firefighter. Woods testified that in early 2008 “it seemed like forever that [they] hadn‘t had a fire call or anything. And it was mainly like kind of getting boring.” Id. at 368. Woods, Burnham, Allen, аnd Allen‘s girlfriend decided to start a couple fires, but “it got out of control.” Id. According to Woods, during the period in question he would occasionally get text messages from Allen, or Allen‘s girlfriend, saying that they were bored at work and did not want to be there. Burnham or Woods would start a fire and then go to Rutland or back to their houses to wait. After the tone went out calling up volunteer firefighters, they would occasionally wait another fifteen or twenty minutes before they went to the firehouse so that the firefighters who were not involved would not become suspicious.
Between Burnham and Woods, the firefighters set two fires in January 2008 and one fire in March. Then, in April, they set sixteen fires, including one on April 17 on federal land at the Long Trail and Appalachian Trail parking lot and trail head. In May 2008 thеy set at least four more fires, including one on federal land at the National Forest White Rocks picnic area near Ice Bed Road. In April and May of 2008, the National Forest fires were investigated by Kim Kinville, a law enforcement officer for the United States Forest Service, who at the time had been stationed in the National Forest for seventeen years.
1. First Federal Fire
On April 17, 2008, Burnham started a brush fire at the Long Trail and Appalachian Trail parking area in the National Forest. At trial, Burnham testified that Allen “named more than one good location” for fires, including specifically telling Burnham that the Long Trail parking lot would be a good place to start a fire. Id. at 207. And so, on April 17, Burnham went up to the Long Trail turnaround and set some leaves on fire. When Burnham was pulling out of the рarking lot, Allen was pulling in. They both then returned to their respective homes. Burnham called 911 and reported the fire using a fake name, and thereafter Burnham and Allen responded to the fire with other WFD firefighters.1
2. Second Federal Fire
Woods testified that in early May 2008 there was discussion with Allen and Burnham that the White Rocks parking area was one of the places where a fire should be set. Woods and Burnham‘s initial attempt at starting a fire at White Rocks failed. The two fires they set simultaneously at the picnic area petered out because the grass was too wet, and the fires
After sucсessfully setting fire to some leaves, Woods drove to the tire shop in Rutland and told Allen that “we‘re going to get a fire call and it‘s probably going to be at White Rocks.” Id. at 376. Woods then went back to White Rocks, saw how large and volatile the fire was, and called it in himself using his real name because “I wanted to pretty much give myself up. . . . I didn‘t want to do it anymore. I -- it wasn‘t me.” Id. He then left the scene, went to the firehouse, and responded to the tone with other firefighters, including Allen.
After the fire was extinguished, Burnham, Woods, and Allen rode back to the firehouse together in Engine One. Allen told Burnham and Woods to “shut our mouths and not talk about it,” and to “just act like we don‘t know what happened.” Id. at 377.
3. Allen‘s Confession
On May 20, 2008, in a recorded interview at the WFD with a Vermont State Police detective, Allen stated that at times he was а reluctant participant, telling Burnham by text that he “need[ed] to stop” and that he was an “idiot” for setting the fires. Id. at 293. But they continued to set fires, and as Allen described it, Burnham and Woods were engaged in something of a “pissing match.” Id. at 298.
Allen did, however, admit his knowledge of or involvement in as many as sixteen of the fires, though he did not concede that he lit any of them himself. Like Burnham and Woods, he was “[b]ored,” and thought “this place, [this] town, is pretty boring around here.” Id. at 282. With regards to the May 8 fire at White Rocks, Allen told Detective Williams that Woods “set the federal fire,” but said that he did not know why Woods did it. Id. at 298. And as for the April 17 fire, Allen admitted to the detective that he told Burnham to set it near the Long Trail parking area, but contended he picked it simply as a random location where they likely would not be сaught.
B. The Proceedings Below
In an indictment filed on September 19, 2012, Allen was charged with knowingly and willfully conspiring with other members of the WFD, including Burnham and Woods, to willfully set on fire underbrush and grass on the public domain, in violation of
At a pre-trial conference on June 24, 2013, with Allen in attendance, Chief Judge Reiss reviewed with the parties her trial practices, including jury orientation and selection. “You are welcome to attend jury orientation,” she told the parties. “It will be the morning of the jury draw. You do not have to, but I don‘t see any reasons why you shouldn‘t be present if you want to.” Id. at 8. On July 22, 2013, on the morning of the jury draw, Chief Judge Reiss conducted the jury orientation, without Allen or either counsel present. Trial commenced that afternoon.
The government‘s case-in-chief involved nine witnesses, including two WFD officers; a United States Forеst Service law enforcement officer; Allen‘s co-conspirators at the WFD, Burnham and Woods, who testified that Allen encouraged and directed them to set the fires and suggested locations; a Vermont State Police detective, who introduced Allen‘s recorded admission that he directed Burnham to set the first National Forest fire; the Wallingford fire warden, who testified that the
After the government rested, the defense moved for a judgment of acquittal on the grounds that there was insufficient evidence of Allen‘s intentional involvement in the federal fires. The district court denied the motion. Allen did not call any witnesses. The jury delivered a guilty verdict on July 24, 2013, just two days after the trial commenced. On December 2, 2013, the district court sentenced Allen principally to a term of thirteen months’ incarceration.
This appeal followed.
DISCUSSION
Two issues are presented: (a) the sufficiency of the evidence of a conspiracy to set fire to public lands, and (b) the propriety of the jury orientation conducted by the district court outside the presence of Allen and his counsel.
A. Sufficiency of the Evidence
We review claims of insufficient evidence de novo, United States v. Geibel, 369 F.3d 682, 689 (2d Cir. 2004), and will affirm if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,” United States v. Jones, 393 F.3d 107, 111 (2d Cir. 2004) (internal quotation marks omitted). “A defendant bears a heavy burden in seeking to overturn a conviction on grounds that the evidence was insufficient.” United States v. Aleskerova, 300 F.3d 286, 292 (2d Cir. 2002) (internal quotation marks omitted).
Here, Allen‘s sufficiency argument turns primarily on a question of law. He argues that there was insufficient evidence to support his conviction for conspiracy to set fire to public lands because of the absence of evidence of specific intent to set fire to federal lands. Allen contends that
The principal question presented is whether a violation of
Whoever, willfully and without authority, sets on fire any timber, underbrush, or grass or other inflammable material upon the public domain or upon any lands owned or leased by or under the partial, concurrent, or exclusive jurisdiction of the United States . . . shall be fined under this title or imprisoned not more than five years, or both.
The issue is whether the phrase “willfully and without authority” modifies just the
Though the statute has been amended several times since it was enacted in 1897,2 the record is silent as to Congress‘s precise intent in creating a federal crime corresponding to a pre-existing common-law prohibition. See, e.g., Phillips v. State, 19 Tex. 158 (1857); Jay P. Kinney, The Essentials of American Timber Law § 101 at 127-28 (1917). It is clear enough, though, that Congress generally intended “to prevent forest fires which have been one of the great economic
misfortunes of the country.” United States v. Alford, 274 U.S. 264, 267 (1927) (interpreting a related statute, Act of June 25, 1910, ch. 431, 36 Stat. 855, that prohibited building a fire in or near any forest and failing to totally extinguish it); see also United States v. Hacker, 73 F. 292, 295 (S.D. Cal. 1896) (“The policy of the government in [making it a misdemeanor to cut timber on public lands] and kindred legislation was to protect the timber on the public domain, except as against certain necessary and specified uses in tillage and mining.“).
The case law pertaining to the elements of timber crimes is similarly thin. Very few cases have dealt with sufficiency of the evidence for a
In Abner, the defеndant set fire to private land, and the fire spread to federal land -- the boundary of which was located anywhere from 300 to 1000 feet from the fire‘s origin -- due to the wind and dry conditions. The government asked the jury to infer that Abner “knew that the fires which were started on private property would spread to public property, that Abner and his cohorts willfully started the fires on private property, and that they started the fires on private property with the specific intent that they spread onto federal property.” Abner, 35 F.3d at 255. Abner was convicted of a substantive
Allen‘s reliance on Abner is misplaced. The Sixth Circuit‘s analysis focused on whether the defendant knew that the fire
We need not decide the exact nature of the intention that Abner required, or how we would decide a case like it, because the case is distinguishable from ours, and presents a different defense. Allen argues that he intentionally set a fire on land that he did not know was federal land; Abner, in contrast, argued that he intentionally set a fire on land that was not federal, and had no intent that the fire spread to the land that was part of the federal domain. To the extent that the Sixth Circuit held that the government needed to prove an intention that the fire spread to land protected by
In light of the lack of direct judicial authority on willfulness in
A line of cases starting with the Supreme Court‘s decision in United States v. Feola provides strong support for the conclusion that for purposes of
The situation is not one where legitimate conduct becomes unlawful solely because of the identity of the individual or agency affected. In a case of this kind the offender takes his victim as he finds
him. The concept of criminal intent does not extend so far as to require that the actor understand not only the nature of his act but also its consequence for the choice of a judicial forum.
In United States v. Yermian, the Supreme Court extended the Feola principle to
While the Supreme Cоurt has read “some criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms does not contain them,” those cases involved statutes that criminalized “otherwise innocent conduct.” LaPorta, 46 F.3d at 158 (quoting United States v. X-Citement Video, Inc., 513 U.S. 64, 70 (1994) (internal quotation marks omitted)); see also Staples v. United States, 511 U.S. 600, 619 (1994); Liparota v. United States, 471 U.S. 419, 426 (1985); Morissette v. United States, 342 U.S. 246, 271 (1952). “Arson is hardly ‘otherwise innocent conduct.‘” LaPorta, 46 F.3d at 158.4 In each of the cases cited in LaPorta, the element as to which the Supreme Court implied a scienter requirement was not a mere jurisdictional element, but was the very element that made the conduct dangerous or criminal.
We conclude that
depredation of property (not to the federal ownership of the property), the “willfulness” language in
The general federal conspiracy statute,
While conspiracy to commit a substantive offense “cannot exist without at least the degree of criminal intent necessary for the substantive offense itself,” Ingram v. United States, 360 U.S. 672, 678 (1959) (internal quotation marks omitted), neither does it require a greater degree of criminal intent than the substantive statute, Feola, 420 U.S. at 692 (“[W]here a substantive offense embodies only a requirement of mens rea as to each of its elements, the general federal conspiracy statute requires no more.“). On this question, the Feola Court held that, “[g]iven the level of intent needed to carry out the substantive offense, we fail to see how the agreement is any less blameworthy or constitutes less of a danger to society solely because the participants are unaware which body of law they intend to violate.” 420 U.S. at 694. Here, the co-conspirators knew they were agreeing to engage intentionally in unlawful conduct. Whether they thought they were agreeing to burn federal lands or non-federal lands, the law does not require that they were aware precisely “which body of law they intend[ed] to violate.” Id. Because
B. Right to be Present
Allen contends that the district court‘s preliminary orientation with the jury panel outside his and his counsel‘s presence deprived him of his right to be present under
As noted above, in a pre-trial conference, the district court informed the parties that it would be conducting a “jury orientation,” and advised them that they were not required to attend, but were welcome to do so. The district court proceeded to describe what it anticipated would take place at the orientation:
I think in a criminal case it‘s interesting because in jury orientation I tell them
the defendant is presumed innocent, he doesn‘t have to prove anything, he doesn‘t have to call any witnesses, he doesn‘t have to testify, he doesn‘t have to cross-examine witnesses, the burden of proof is on the government, it has to prove guilt beyond a reasonable doubt. I tell them that law enforcement officers are not entitled to any greater or lesser credibility because of their status as law enforcement officers.
And then when we get to jury draw people are saying, well, I don‘t think he‘d be here if he wasn‘t guilty so I know the government would not waste our tax payers[‘] [money] if he wasn‘t there, and I cеrtainly would get up and testify and I just can‘t imagine why anybody wouldn‘t testify.
So you [know that] I‘ve already told them all this and they are already ignoring me. So it‘s sometimes helpful to see that.
Also just stressing how important this is and that they are upholding the [C]onstitution and this is what we‘re requiring [of] them. I go through a long discussion of juror misconduct all the times it‘s happened in my cases and colleagues’ cases and what happens when it happens so that they are highly alerted to that issue.
S. App. at 8-9. Later in the conference, defense counsel asked for clarification:
Mr. Furlan: . . . As I understand it Your Honor will do general questions about their, the jurors’ qualifications?
The Court: I won‘t do, I won‘t do any questions. What I will say is to sit on this jury you must do the following: You must reside in the district for at least a year, you must be able to read, fully pаrticipate in the trial with or without reasonable accommodation, you must not have a felony, whatever the term is about the felony. And I read it right from the qualifications. Anybody whose got a problem with these please raise your hand we‘ll give you a piece of paper. So that‘s all I do.
Mr. Furlan: But no one will be removed at that point?
The Court: Right.
Mr. Furlan: And then we begin the voir dire and then we do everything after that?
The Court: Right.
Id. at 18.
The jury orientation took place the morning of the first day of trial, and the district court spent over an hour speaking with the potential jurors. Neither the government nor defense counsel attended, nor was Allen present. Although the district court had previously told counsel that “I won‘t do any questions,” id., in fact it asked questions of potential jurors and answered questions they posed on topics that would have been of interest to defense counsel.
The district court asked two sets of questions during the course of the orientation. First, the court asked: “Do we have anybody here who sat on a jury before? If you would raise your hand? And how was your experience, ma‘am?” App. at 26. The juror responded that it was “[i]nteresting . . . . [I]t was a sense of you‘re the decider of what the findings would be.” Id. The district court then called on someone else, and a second juror responded that “[i]t was very interesting. I didn‘t expect it to end the way it did.” Id. Later in the orientation, the district court asked a second set of questions:
What the attorneys tell you and their statements and their questions are not evidence. And why do you think that is? So the attorneys are making opening statements, they are making closing arguments, they are asking questions,
why would that not be evidence in the case? No takers?
Id. at 40. The district court then answered its own question without hearing from jurors.
The district court also answered four questions from prospective jurors: (1) what happens if the juror knows one of the attorneys in the case, (2) what if the juror dislikes how the federal government works, (3) whether the jury decides guilt and the sentence or just guilt, and (4) how the court addresses situations where “strong feelings” arise during deliberations, id. at 67.
The district court also discussed a number of issues, including: the “jigsaw puzzle” nature of evidence, id. at 33, evidentiary objections and the difference between direct and circumstantial evidence, judging credibility, following laws they disagree with, putting aside specialized knowledge, the importance of keeping an open mind and problems with juror bias, the duty of jurors to deliberate (аnd not to refuse to deliberate), the presumption of innocence, the mechanics of closing arguments, jury instructions and deliberation, and juror misconduct. It also provided a preview of issues that would be addressed during the preliminary charge to be given to the jury once it was impaneled. At one point, the district court referred to the OJ Simpson case, telling the potential jurors that some of them might be thinking, “I understand whatever happened in the OJ Simpson case is not what we‘re doing here and I can set that aside.” Id. at 49. Later that afternoon, the parties conducted the voir dire as planned, the jury was selected, and the government gave its opening statement.
Allen contends that the morning orientation crossed the line into judge-conducted voir dire, and that he had a right to be present under
Allen argues that automatic reversal of the conviction is required because his absence from the orientation was a “structural defect.” Appellant‘s Br. 58-59. The argument fails. The Supreme Court has distinguished “trial errors,” which are relatively limited in scope and are subject to harmless error review, from “structural defects,” which require automatic reversal because they “affect [] the framework within which the trial proceeds.” United States v. Feliciano, 223 F.3d 102, 111 (2d Cir. 2000) (alteration in original) (internal quotation marks omittеd). We have held that “[e]rrors are properly categorized as structural only if they so fundamentally undermine the fairness or the validity of the trial that they require voiding its result regardless of identifiable prejudice.” Yarborough v. Keane, 101 F.3d 894, 897 (2d Cir. 1996). To differentiate trial errors from structural defects we look not only at the right violated, but also at the context of the violation. Id. at 898 (“[A] defendant‘s absence from certain stages of a criminal proceeding may so undermine the integrity of the trial process that the error will necessarily fall within that category of cases requiring automatic reversal.” (quoting Hegler v. Borg, 50 F.3d 1472, 1476 (9th Cir. 1995))).
Any error here, assuming there was error, did not “so fundamentally undermine
Even absent a finding of structural defect, Allen argues that he had a right to be present under
On review of the district court‘s denial of federal habeas, we held that “pre-screening of prospective jurors is a material stage of trial at which the defendant has a constitutional right to be present. Pre-screening of a jury venire is not comparable to [a] brief conference between judge and juror . . . nor a procedure at which a defendant‘s presence would be ‘useless.‘” Id. at 489. We distinguished the “pre-screening” of jurors, which involved a substantive inquiry into the jurors’ qualifications, from the purely “administrative impanelment process” in cases like United States v. Greer, where prospective jurors were questioned, outside the presence of the defendant, on logistical matters such as personal hardship in serving. Id. at 490 (citing Greer, 285 F.3d 158, 167-68 (2d Cir. 2002)). In Greer, we noted that we had recently “reaffirmed that hardship questioning is not a part of voir dire -- and thus not a critical stage of the trial during which the parties and counsel must be present.” 285 F.3d at 168; see also Gomez v. United States, 490 U.S. 858, 874 (1989) (distinguishing an “administrative [i]mpanelment process” from the jurors’ “first introduction to the substantive factual and legal issues in a case” during voir dire).
In our view, the orientation procedure utilized in the instant case was fraught with risk and the potential for problems. Outside the presence of Allen and counsel, the district court engaged in a discussion with prospective jurors about substantive legal issues, including the nature of evidence, the presumption of innocence, and the duty to deliberate. The court asked prospective jurors about prior jury experience, and prospective jurors asked the court about anti-federal government bias, whether the jury had a role in deciding the sentence, and how to deal with “strong feelings” in deliberations. Allen and his counsel surely would have wanted to be present for these exchanges: They might have objected to certain questions or comments (e.g., the comment about the OJ Simpson case), they could have asked for limiting or curative instructions or follow-up questioning (e.g., with respect to the question about anti-federal government sentiment), and they would have been able to observe the demeanor of those prospective jurors who spoke. All of thеse matters could have had an impact on their exercise of peremptory challenges or
Whether this orientation constituted a “material stage” of the trial at which Allen had a constitutional right to be present is a close question. The orientation was somewhere in between the “administrative impanelment process” at issue in Greer, where prospective jurors were asked only about logistical matters such as personal hardship, 285 F.3d at 168, and the “pre-screening” of prospective jurors in Cohen, which involved a substantive inquiry into the jurors’ qualifications, 290 F.3d at 489-90. Here, the district court did more than merely inquire about logistical matters, and yet its conversation with the prospective jurors was less fulsome than the inquiry in Cohen. We need not decide on these facts, however, whether Allen had a right to be present at the orientation. Even assuming he had such a right, we find that he waived it.
A defendant‘s right to be present at trial proceedings is subject to waiver. United States v. Gagnon, 470 U.S. 522, 528-29 (1985) (per curiam) (finding waiver where defendant failed to invoke
If a defendant is entitled under
Rule 43 to attend certain “stages оf the trial” which do not take place in open court, the defendant or his counsel must assert that right at the time; they may not claim it for the first time on appeal from a sentence entered on a jury‘s verdict of “guilty.” . . . Respondents knew the District Judge was holding a conference with the juror and with Gagnon‘s attorney, yet neither they nor their attorney made any effort to attend. Timely invocation of aRule 43 right could at least have apprised the District Court of the claim, and very likely enabled it to accommodate a meritorious claim in whole or in part. . . . We hold that failure by a criminal defendant to invoke his right to be present underFederal Rule of Criminal Procedure 43 at a conference which he knows is taking place between the judge and a juror in chambers constitutes a valid waiver of that right.
Wаiver must be “[k]nowing and [v]oluntary,” but it can be “implied from the defendant‘s conduct.” United States v. Nichols, 56 F.3d 403, 416 (2d Cir. 1995). In Cohen, though we held that there was a constitutional right to be present during the jury pre-screening, we ultimately
In this case, the argument for waiver is even more compelling: The district court explicitly invited Allen and his counsel to be present for the orientation. “You are welcome to attend jury orientation,” the court told the parties. “It will be the morning of the jury draw. You do not have to, but I don‘t see any reasons why you shouldn‘t be present if you want to.” S. App. at 8. The district court provided a general description of the sеssion, and Allen was on notice that there would be some discussion of the law during the orientation. In fact, after mentioning some of the substantive legal principles that it would be discussing during orientation, the district court added that during voir dire, jurors often ignore what it has already told them during orientation, “[s]o it‘s sometimes helpful to see that.” Id.
Allen contends that he could not have waived his right to be present at the orientation because he was not fully informed of the nature of the orientation, going so far as to say the district court “mischaracterized” the session. Reply Br. 9-10. We are not persuaded. Our cases hold that “only minimal knowledge on the part of the accused is required when waiver is implied from conduct.” Nichols, 56 F.3d at 416; accord Cohen, 290 F.3d at 491 (holding that “the trial court‘s actions in open court gave Cohеn sufficient ‘minimal’ knowledge of the nature and purpose of the pre-screening procedure to conclude that he waived his right to be present“). The district court‘s description here was sufficient to give Allen “minimal knowledge” of the nature and purpose of the orientation.
Allen and his counsel were apprised of the nature and purpose of the orientation, but declined the district court‘s invitation to attend. Thus, we hold that, even assuming Allen had a right to be present at the orientation, he knowingly and voluntarily waived it.
CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.