08-2566 U.S. v. Perez

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Criminal Procedure
Right to be present

It did not violate a defendant's right to be present at trial by conducting the jury instruction conference in his absence.

"Perez's argument is misplaced. Courts are not in the business of holding hearings to oversee or approve a defendant's trial strategy; they hold hearings to address legal or factual issues (or sometimes both) or to establish case management schedules. True, trial courts often inquire into strategy to establish that waivers are knowing and voluntary and to preserve judicial resources (by avoiding the potential for reversible error or collateral attack). But a court's inquiry into a defendant's strategy does not alter the purpose of the conference, which in this case was to determine the appropriate jury instructions. The content of jury instructions is a question of law, and as such the jury instruction conference, assuming arguendo it was a stage of trial, fell within the Rule 43(b)(3) exception for 'a conference or hearing on a question of law.' United States v. Rivera, 22 F.3d 430, 438-39 (2d Cir. 1994) ('The content of the instructions to be given to the jury is purely a legal matter, and a conference to discuss those instructions is thus a conference on a question of law at which a defendant need not be present.') (internal citations omitted); United States v. Sherman, 821 F.2d 1337, 1339 (9th Cir. 1987) ('We hold that a hearing outside the presence of the jury concerning the selection of jury instructions is a "conference or argument upon a question of law . . . ."'); United States v. Graves, 669 F.2d 964, 972 (5th Cir. 1982) ('A defendant does not have a federal constitutional or statutory right to attend a conference between the trial court and counsel concerned with the purely legal matter of determining what jury instructions the trial court will issue.')."

Affirmed.

08-2566 U.S. v. Perez

Appeal from the United States District Court for the Northern District of Illinois, Darrah, J., Manion, J.

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