13‐4846‐cr United States v. Allen

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2014

(Argued: November 4, 2014 Decided: June 3, 2015)

Docket No. 13‐4846‐cr

UNITED STATES OF AMERICA,

Appellee,

v.

GEORGE ALLEN,

Defendant‐Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT

Before: 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 counselʹs

presence.

AFFIRMED.

____________________________

WILLIAM B. DARROW, Assistant United States Attorney (Gregory L. Waples, Assistant United States Attorney, on the brief), for Eugenia Cowles, Acting United States Attorney for the District of Vermont, Burlington, VT, for Appellee.

MICHAEL K. BACHRACH, Law Office of Michael K. Bachrach, New York, NY, for Defendant‐ Appellant. ____________________________

CHIN, Circuit Judge:

The town of Wallingford, Vermont lies in the Otter Creek Valley,

between the Taconic and Green Mountains, at the foot of the Green Mountain

‐ 2 ‐

National Forest (the ʺNational Forestʺ). 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

(ʺAllenʺ), a volunteer firefighter and captain at the Wallingford Volunteer Fire

Department (the ʺWFDʺ), 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 ʺbored,ʺ and conspired to set fires because it gave them ʺsomething to doʺ ‐‐

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

and 1855, because the government failed to prove a specific

intent to set fires on federal property, and (2) the district court violated his right

to be present under Rule 43(a) of the Federal Rules of Criminal Procedure and

the Due Process Clause by conducting a jury orientation outside his and his

counselʹs presence.

We affirm.

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STATEMENT OF THE CASE

A. The Facts

Because Allen challenges the sufficiency of the evidence to support

his conviction, ʺwe view the evidence in the light most favorable to the

government, drawing all inferences in the governmentʹs favor and deferring to

the juryʹs assessments of the witnessesʹ credibility.ʺ United States v. Hawkins,

(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 ʺAllen Hose Company,ʺ 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 ʺfreelancingʺ at the scene of fires, deviating from

standard protocol, disrespecting officers, and throwing ʺtemper tantrums.ʺ 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.

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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 ʺboredʺ and looking for

ʺsomething to do,ʺ

, and because it was ʺan adrenaline rush,ʺ

.

ʺ[S]tanding around at the fire station it would get mentioned that it would be

nice to have a fire call. So we would go out and set a grass fire to get a fire call,ʺ

he testified.

. On at least one occasion after setting a fire, Burnham

called 911 using a fake name. The emergency signal ‐‐ or ʺtoneʺ ‐‐ would then go

out, calling up the volunteer firefighters. Those who knew in advance where and

‐ 5 ‐

when there would be a fire prided themselves on their quick response time.

Afterwards, Allen would occasionally reward Burnham with cigarettes.

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 ʺit seemed like forever that [they]

hadnʹt had a fire call or anything. And it was mainly like kind of getting boring.ʺ

Id. at 368. Woods, Burnham, Allen, and Allenʹs girlfriend decided to start a

couple fires, but ʺit got out of control.ʺ Id. According to Woods, during the

period in question he would occasionally get text messages from Allen, or Allenʹs

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,

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including one on April 17 on federal land at the Long Trail and Appalachian

Trail parking lot and trail head. In May 2008 they 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 ʺnamed more than one good locationʺ 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 parking lot, Allen was pulling in. They both then returned to their

respective homes. Burnham called 911 and reported the fire using a fake name,

‐ 7 ‐

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 Burnhamʹs 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 were too small to

warrant a call. But a couple days later, on May 8, Allen texted Woods saying that

he did not want to be at work. Woods then went up alone into the woods near

the White Rocks parking lot.

After successfully setting fire to some leaves, Woods drove to the

tire shop in Rutland and told Allen that ʺweʹre going to get a fire call and itʹs

probably going to be at White Rocks.ʺ 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 ʺI wanted to pretty much give myself up. . . . I didnʹt

A Vermont State Police Arson Unit officer testified at trial that ‐‐ 1

based on the WFDʹs run sheets ‐‐ Allen and Burnham responded to all of the twenty‐ four suspicious fires. ‐ 8 ‐

want to do it anymore. I ‐‐ it wasnʹt me.ʺ 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

ʺshut our mouths and not talk about it,ʺ and to ʺjust act like we donʹt know what

happened.ʺ Id. at 377.

3. Allenʹs 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 a reluctant

participant, telling Burnham by text that he ʺneed[ed] to stopʺ and that he was an

ʺidiotʺ 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 ʺpissing

match.ʺ 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 ʺ[b]ored,ʺ and thought ʺthis place,

[this] town, is pretty boring around here.ʺ Id. at 282. With regards to the May 8

fire at White Rocks, Allen told Detective Williams that Woods ʺset the federal

‐ 9 ‐

fire,ʺ 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 caught.

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. ʺYou are welcome to attend jury orientation,ʺ she told

the parties. ʺIt will be the morning of the jury draw. You do not have to, but I

donʹt see any reasons why you shouldnʹt be present if you want to.ʺ

. 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.

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The governmentʹs case‐in‐chief involved nine witnesses, including

two WFD officers; a United States Forest Service law enforcement officer; Allenʹs

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 Allenʹs recorded admission that he

directed Burnham to set the first National Forest fire; the Wallingford fire

warden, who testified that the WFD failed to report any of the twenty‐four fires

in question, despite a legal requirement to do so; and two witnesses who

introduced cell phone evidence showing a heavy volume of communications

between Allen and Burnham during the first National Forest fire.

After the government rested, the defense moved for a judgment of

acquittal on the grounds that there was insufficient evidence of Allenʹs

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 monthsʹ incarceration.

This appeal followed.

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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,

(2d Cir. 2004), and will affirm if ʺany rational trier of fact

could have found the essential elements of the crime beyond a reasonable

doubt,ʺ United States v. Jones,

(2d Cir. 2004) (internal quotation

marks omitted). ʺA defendant bears a heavy burden in seeking to overturn a

conviction on grounds that the evidence was insufficient.ʺ United States v.

Aleskerova,

(2d Cir. 2002) (internal quotation marks omitted).

Here, Allenʹs 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

requires knowledge that the lands to be set ablaze are federal, and that

conspiracy to violate § 1855 requires the same. We hold, to the contrary, that

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specific knowledge of federal ownership is not required, either for the

substantive statute or for conspiracy to violate the substantive statute.

The principal question presented is whether a violation of § 1855

requires that the defendant know that the land is federal land. The statute

provides in pertinent part:

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.

. We must decide whether the element of intent embodied in the

word ʺwillfullyʺ includes not only the defendantʹs setting on fire of timber,

underbrush, or grass, but also the defendantʹs knowledge that the lands are

federal. In deciding this question of first impression we look to the language of

the statute, see Lamie v. U.S. Trustee,

(2004), the intent of

Congress as expressed in the legislative history, see United States v. Dauray,

(2d Cir. 2000), and cases involving the interpretation of this and

similar statutes.

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The issue is whether the phrase ʺwillfully and without authorityʺ

modifies just the act of setting a fire, or whether it reaches more broadly to

require that the defendant ʺwillfully and without authorityʺ set the fire knowing

it to be ʺupon the public domain or upon any lands owned or leased by or under

the partial, concurrent, or exclusive jurisdiction of the United States.ʺ

. While it is clear that the fire must be set on federal lands to invoke federal

jurisdiction, we must decide whether the defendant must know or intend that

the fire be set on federal lands.

Though the statute has been amended several times since it was

enacted in 1897,2 the record is silent as to Congressʹs precise intent in creating a

federal crime corresponding to a pre‐existing common‐law prohibition. See, e.g.,

Phillips v. State,

(1857); Jay P. Kinney, The Essentials of American Timber

Law § 101 at 127‐28 (1917). It is clear enough, though, that Congress generally

intended ʺto prevent forest fires which have been one of the great economic

See Act of February 24, 1897, ch. 313,

(crime to ʺwillfully 2

and maliciouslyʺ set a fire or ʺcarelessly or negligentlyʺ leave one to burn unattended); Act of May 5, 1900,

(amended, omitting words ʺcarelessly or negligentlyʺ); Act of March 4, 1909,

, 1098 (amended, omitting word ʺmaliciouslyʺ); see also Act of June 25, 1910,

, 857 (amended, applying also to Indian tribal lands or Indian allotments while held under restricted or trust patents); Act of November 5, 1941,

(amended, adding ʺand without authorityʺ); Act of June 25, 1948, ch. 645,

(current version at

). ‐ 14 ‐

misfortunes of the country.ʺ United States v. Alford,

(1927)

(interpreting a related statute, Act of June 25, 1910, ch. 431,

, that

prohibited building a fire in or near any forest and failing to totally extinguish it);

see also United States v. Hacker,

(S.D. Cal. 1896) (ʺThe 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.ʺ).

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 § 1855

conviction, see, e.g., United States v. Velte,

(9th Cir. 2003); United States

v. Abner,

(6th Cir. 1994); United States v. Newman,

(9th Cir.

1993), and none has clearly addressed the scope of the willfulness requirement.

Allen relies on the Sixth Circuit case, Abner, to support his assertion that the

ʺwillfulnessʺ element of § 1855 applies not only to setting the fire, but to doing so

knowing the lands were federal.

In Abner, the defendant 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 fireʹs origin ‐‐ due to the wind and dry conditions. The government

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asked the jury to infer that Abner ʺknew 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.ʺ

Abner,

. Abner was convicted of a substantive § 1855 offense, and

the Sixth Circuit reversed on the grounds that no ʺrational jury could convict

Abner for willfully setting on fire lands owned by the federal government.ʺ Id.

Allenʹs reliance on Abner is misplaced. The Sixth Circuitʹs analysis

focused on whether the defendant knew that the fire would likely spread to

federal land, and the government argued that Abnerʹs willful burning of private

lands could be used to show an intent to burn federal land. But in the end, Abner

is equivocal as to the precise nature of the specific intent that Abner lacked.

Although the Sixth Circuit emphasized that there was ʺno evidence that Abner

knew that the area contained government land,ʺ id. at 256, the court adopted the

enumeration of elements for a § 1855 violation set forth in its unpublished (and

incongruously‐named) decision in United States v. Rainwater, where it held that

the government had only to prove ʺ1) that Rainwater burned land owned by the

United States, 2) that Rainwater did not have authority to set the fire, and 3) that

‐ 16 ‐

Rainwater set the fire willfully.ʺ No. 92‐5504,

(6th Cir. Feb.

23, 1993) (per curiam).3 The elements as stated in Rainwater accord with our

ultimate holding, that § 1855 requires only ʺthat [the defendant] set the fire

willfully,ʺ and not that he set fire to land knowing it was federal land. Id.

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 § 1855, that holding provides

no defense for Allen.

In light of the lack of direct judicial authority on willfulness in

3In one instance, Abner states the third element differently from Rainwater, despite citing to Rainwater for the proposition. Compare Abner,

(the government had to prove that ʺAbner set this land on fire willfullyʺ), with Rainwater,

(the government had to prove that ʺRainwater set the fire willfullyʺ). Because the Abner articulation refers to this ‐‐ the federal ‐‐ land, it is more ambiguous than Rainwater on the scope of willfulness. ‐ 17 ‐

§ 1855 and the paucity of legislative history, we turn for guidance to cases that

have discussed the federal knowledge requirement with respect to similar

statutes.

A line of cases starting with the Supreme Courtʹs decision in United

States v. Feola provides strong support for the conclusion that for purposes of

§ 1855 federal title to the land is merely a jurisdictional prerequisite and that

knowledge thereof is not an element of the substantive offense.

(1975). In Feola, the Supreme Court considered a conviction for conspiracy to

violate

, which prohibits assault on a federal officer. The Feola

Court explored whether anti‐federal scienter ‐‐ the Courtʹs term for specific

knowledge that the victim is a federal officer ‐‐ is required for the substantive

statute as well as for conspiracy to violate the substantive statute. The Court

held that § 111 does not require awareness on the part of the assailant that her

victim is a federal officer. The statute exists, the Court concluded, ʺto accord[]

maximum protection to federal officers . . . . All the statute requires is an intent to

assault, not an intent to assault a federal officer.ʺ Feola,

. The

Court continued:

The situation is not one where legitimate conduct becomes unlawful solely because of the identity of the

‐ 18 ‐

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

, which prohibits willfully making false statements to

federal agents.

(1984) (ʺJurisdictional language need not contain

the same culpability requirement as other elements of the offense.ʺ). And in

United States v. LaPorta, we applied Feola to

, which prohibits

willful injury or depredation against federal property.

, 158 (2d Cir.

1994) (ʺThe defendants argue that to be convicted of destruction of government

property . . . the government must show that they knew the government owned

the property in question. We find no such scienter requirement under § 1361.ʺ).

The ʺwillfulnessʺ language in § 1855 fits squarely with our interpretation in

LaPorta of the ʺwillfulnessʺ language in § 1361.

While the Supreme Court has read ʺsome criminal statutes to

include broadly applicable scienter requirements, even where the statute by its

terms does not contain them,ʺ those cases involved statutes that criminalized

‐ 19 ‐

ʺotherwise innocent conduct.ʺ LaPorta, 46 F.3d at 158 (quoting United States v. X‐

Citement Video, Inc.,

(1994) (internal quotation marks omitted)); see

also Staples v. United States,

(1994); Liparota v. United States,

(1985); Morissette v. United States,

(1952). ʺArson is

hardly ʹotherwise innocent conduct.ʹʺ 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 § 1855 is more in line with the statutes at issue in

Feola and its progeny than with the statutes at issue in Morissette and similar

cases. Just as the ʺwillfulnessʺ language in § 1361 at issue in LaPorta refers to the

4 Allen points to § 1855ʹs sister statutes, arguing that because they require federal scienter, so too does § 1855. See, e.g.,

(Coal Depredations);

§ 1852 (Timber Removed or Transported); id. § 1853 (Trees Cut or Injured); id. § 1854 (Trees Boxed for Pitch or Turpentine); id. § 1856 (Fires Left Unattended and Unextinguished); id. § 1857 (Fences Destroyed; Livestock Entering); id. § 1858 (Survey Marks Destroyed or Removed); id. § 1859 (Surveys Interrupted); id. § 1860 (Bids at Land Sales); id. § 1861 (Deception of Prospective Purchasers); id. § 1863 (Trespass on National Forest Lands); id. § 1864 (Hazardous or Injurious Devices on Federal Lands). But Allen cites no authority for the proposition that these Chapter 91 statutes require knowledge that the timber, land, or resources are federal. Furthermore, several of these statutes criminalize ʺotherwise innocent conduct,ʺ and none requires ʺwillfulnessʺ except for § 1858, which provides that whoever ʺwillfullyʺ destroys or defaces survey marks ʺon any Government line of surveyʺ commits a crime. No case has addressed the federal knowledge requirement for this section, and in any event the language in § 1855 accords more squarely with the statute in LaPorta than with § 1858.

‐ 20 ‐

depredation of property (not to the federal ownership of the property), the

ʺwillfulnessʺ language in § 1855 refers to the setting of fires (not to the federal

ownership of the lands on which they are set). Hence, we hold that § 1855 does

not require knowledge that the lands are federal.

Allen contends that even if he could have been found guilty of a

substantive § 1855 offense, there was insufficient evidence to establish a § 371

conspiracy conviction because he did not willfully enter into an agreement to

burn federal lands, and, moreover, the object of any conspiracy was not

specifically to burn federal lands. This argument fails. We conclude that

conspiracy to violate § 1855 requires no greater scienter than the substantive

crime requires.

The general federal conspiracy statute,

, prohibits

ʺtwo or more persons [from] conspir[ing] . . . to commit any offense against the

United States.ʺ The elements of a conspiracy under § 371 are: ʺ(1) an agreement

between two or more persons to commit an unlawful act; (2) knowingly

engaging in the conspiracy intending to commit those offenses that were the

objects of the conspiracy; and (3) commission of an ʹovert actʹ by one or more

‐ 21 ‐

members of the conspiracy in furtherance of the conspiracy.ʺ United States v.

Reyes,

(2d Cir. 2002).

While conspiracy to commit a substantive offense ʺcannot exist

without at least the degree of criminal intent necessary for the substantive

offense itself,ʺ Ingram v. United States,

(1959) (internal quotation

marks omitted), neither does it require a greater degree of criminal intent than

the substantive statute, Feola,

(ʺ[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.ʺ). On this question, the Feola Court

held that, ʺ[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.ʺ

. 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 ʺwhich body of law they

intend[ed] to violate.ʺ

Because § 1855 does not require that the defendant

‐ 22 ‐

harbor specific intent to burn federal lands, the § 371 conspiracy offense requires

no greater mens rea.5

B. Right to be Present

Allen contends that the district courtʹs preliminary orientation with

the jury panel outside his and his counselʹs presence deprived him of his right to

be present under Rule 43(a) of the Federal Rules of Criminal Procedure and the

Due Process Clause of the Fifth Amendment.

As noted above, in a pre‐trial conference, the district court informed

the parties that it would be conducting a ʺjury orientation,ʺ 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 itʹs interesting because in jury orientation I tell them the defendant is presumed innocent, he doesn’t have to prove anything, he doesnʹt have to call any witnesses, he doesnʹt have to testify, he

5 In their briefs on appeal, the parties focus on the legal issue of the degree of scienter required for a § 1855 violation. The government does suggest as a factual matter that Allen intended for the fires to be set on lands he knew to be federal. The government notes that Allen admitted that he directed Burnham to set the fire near the Long Trail and Appalachian Trail parking area on April 17, 2008, and Woods testified that Allen instructed him to set the fire near the White Rocks parking area on May 8, 2008. In light of our resolution of the legal issue, we need not decide the factual question. ‐ 23 ‐

doesnʹt 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 donʹt think heʹd be here if he wasnʹt guilty so I know the government would not waste our tax payers[ʹ] [money] if he wasnʹt there, and I certainly would get up and testify and I just canʹt imagine why anybody wouldnʹt testify.

So you [know that] Iʹve already told them all this and they are already ignoring me. So itʹs sometimes helpful to see that.

Also just stressing how important this is and that they are upholding the [C]onstitution and this is what weʹre requiring [of] them. I go through a long discussion of juror misconduct all the times itʹs happened in my cases and colleaguesʹ 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 jurorsʹ qualifications?

The Court: I wonʹt do, I wonʹt 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 participate in the trial with or without reasonable accommodation, you must not have

‐ 24 ‐

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 weʹll give you a piece of paper. So thatʹs 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

ʺI wonʹt do any questions,ʺ 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: ʺDo we have anybody

here who sat on a jury before? If you would raise your hand? And how

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was your experience, maʹam?ʺ App. at 26. The juror responded that it was

ʺ[i]nteresting . . . . [I]t was a sense of youʹre the decider of what the

findings would be.ʺ Id. The district court then called on someone else, and

a second juror responded that ʺ[i]t was very interesting. I didnʹt expect it

to end the way it did.ʺ 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 ʺstrong

feelingsʺ arise during deliberations, id. at 67.

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The district court also discussed a number of issues, including:

the ʺjigsaw puzzleʺ 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 (and 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, ʺI understand whatever happened in the OJ

Simpson case is not what weʹre doing here and I can set that aside.ʺ 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 Rule 43(a)

and the Due Process Clause. Rule 43(a) provides that a defendant in a criminal

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case ʺmust be present at . . . every trial stage, including jury impanelment.ʺ Fed.

R. Crim. P. 43(a). In addition to Rule 43(a), the Due Process Clause ʺrequires a

criminal defendantʹs presence ʹto the extent that a fair and just hearing would be

thwarted by his absence, and to that extent only.ʹʺ United States v. Jones,

(2d Cir. 2004) (quoting Snyder v. Massachusetts,

(1934)).

Allen argues that automatic reversal of the conviction is required

because his absence from the orientation was a ʺstructural defect.ʺ Appellantʹs

Br. 58‐59. The argument fails. The Supreme Court has distinguished ʺtrial

errors,ʺ which are relatively limited in scope and are subject to harmless error

review, from ʺstructural defects,ʺ which require automatic reversal because they

ʺaffect [] the framework within which the trial proceeds.ʺ United States v.

Feliciano,

(2d Cir. 2000) (alteration in original) (internal

quotation marks omitted). We have held that ʺ[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.ʺ Yarborough v. Keane,

(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.

(ʺ[A] defendantʹs absence from certain

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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.ʺ (quoting Hegler v. Borg,

(9th Cir. 1995))).

Any error here, assuming there was error, did not ʺso fundamentally

undermine the fairness or the validity of the trialʺ as to require voiding its result.

Id. at 897. No prospective jurors were excused in the morning session, and a full

voir dire was conducted in the afternoon. Even assuming a violation of the right

to be present can be structural error in certain circumstances, we cannot conclude

that the fairness of the trial was fundamentally undermined here. See Johnson v.

United States,

, 468‐69 (1997) (ʺWe have found structural errors only

in a very limited class of cases.ʺ).

Even absent a finding of structural defect, Allen argues that he had a

right to be present under Rule 43, that this right was not and could not have been

knowingly waived, and that this was not harmless error. This Court addressed a

pre‐trial ex parte communication between judge and jury in Cohen v. Senkowski,

(2d Cir. 2002). There, the trial judge conducted a ʺpre‐screeningʺ of

prospective jurors, questioning them individually in his chambers on, among

other things, their prior knowledge of the case from pre‐trial publicity. Cohenʹs

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counsel was present for the pre‐screening, though Cohen himself was not. Two

jurors who indicated during the pre‐screening that they had knowledge of the

case from media reports were eventually seated on the jury.

.

On review of the district courtʹs denial of federal habeas, we held

that ʺpre‐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 defendantʹs presence would be ʹuseless.ʹʺ

. We

distinguished the ʺpre‐screeningʺ of jurors, which involved a substantive inquiry

into the jurorsʹ qualifications, from the purely ʺadministrative impanelment

processʺ 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.

at 490 (citing Greer,

, 167‐68 (2d Cir.

2002)). In Greer, we noted that we had recently ʺreaffirmed 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.ʺ

; see also

Gomez v. United States,

(1989) (distinguishing an ʺadministrative

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[i]mpanelment processʺ from the jurorsʹ ʺfirst introduction to the substantive

factual and legal issues in a caseʺ 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 ʺstrong feelingsʺ 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 these matters could have had an

impact on their exercise of peremptory challenges or provided a basis for a

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challenge for cause.6 Clearly, it would have been preferable for the district court

to have had the parties present for the orientation or, in the absence of the

parties, for the district court to have limited itself to plainly logistical and

administrative issues, leaving substantive discussion for voir dire and the

preliminary charge after impanelment of the jury.7

Whether this orientation constituted a ʺmaterial stageʺ of the trial at

which Allen had a constitutional right to be present is a close question. The

orientation was somewhere in between the ʺadministrative impanelment

processʺ at issue in Greer, where prospective jurors were asked only about

logistical matters such as personal hardship,

, and the ʺpre‐

screeningʺ of prospective jurors in Cohen, which involved a substantive inquiry

into the jurorsʹ qualifications, 290 F.3d at 489‐90. Here, the district court did

more than merely inquire about logistical matters, and yet its conversation with

6 See Lewis v. United States,

(1892) (The defendantʹs ʺlife or liberty may depend upon the aid which, by his personal presence, he may give to counsel and to the court and triers in the selection of jurors.ʺ). 7 Many of the instructions given by the district court in the orientation are more appropriately given as part of the preliminary instructions at the beginning of trial after the jury has been impaneled. See 1 Leonard B. Sand, et al., Modern Federal Jury Instructions, ¶¶ 1.02 (Instructions at Beginning of Trial), 2.01 (Function of the Court, the Jury, and Counsel) (rev. 2011). In fact, as Allen notes, the transcript of the ʺorientationʺ is actually entitled ʺPreliminary Charge to the Jury Pool.ʺ App. at 22. ‐ 32 ‐

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 defendantʹs right to be present at trial proceedings is subject to

waiver. United States v. Gagnon,

, 528‐29 (1985) (per curiam) (finding

waiver where defendant failed to invoke Rule 43 right to be present at an in

camera conference which he knew was taking place between the judge and a

juror). In Gagnon, the Supreme Court held a defendant could waive his right to

be present at trial by failing to assert that right:

If a defendant is entitled under Rule 43 to attend certain ʺstages of the trialʺ 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 juryʹs verdict of ʺguilty.ʺ . . . Respondents knew the District Judge was holding a conference with the juror and with Gagnonʹs attorney, yet neither they nor their attorney made any effort to attend. Timely invocation of a Rule 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 under Federal 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.

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.

Waiver must be ʺ[k]nowing and [v]oluntary,ʺ but it can be ʺimplied

from the defendantʹs conduct.ʺ United States v. Nichols,

(2d Cir.

1995). In Cohen, though we held that there was a constitutional right to be

present during the jury pre‐screening, we ultimately found that because Cohen

knew of the pre‐screening proceedings ‐‐ despite his claim that he did not know

he had a right to attend ‐‐ he had impliedly waived his right by virtue of his

voluntary absence. 290 F.3d at 490‐93.

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. ʺYou are welcome to attend jury orientation,ʺ the court told the

parties. ʺIt will be the morning of the jury draw. You do not have to, but I donʹt

see any reasons why you shouldnʹt be present if you want to.ʺ S. App. at 8. The

district court provided a general description of the session, 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,

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jurors often ignore what it has already told them during orientation, ʺ[s]o itʹs

sometimes helpful to see that.ʺ

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 ʺmischaracterizedʺ the

session. Reply Br. 9‐10. We are not persuaded. Our cases hold that ʺonly

minimal knowledge on the part of the accused is required when waiver is

implied from conduct.ʺ Nichols,

; accord Cohen,

(holding that ʺthe trial courtʹs actions in open court gave Cohen sufficient

ʹminimalʹ knowledge of the nature and purpose of the pre‐screening procedure

to conclude that he waived his right to be presentʺ). The district courtʹs

description here was sufficient to give Allen ʺminimal knowledgeʺ 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 courtʹs invitation to attend. Thus, we

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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.

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