United States v. Roy

• Citation: 761 F.3d 1285
• Decision Date: 05 August 2014
• Docket Number: No. 12–15093.,12–15093.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Alexander Michael ROY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

761 F.3d 1285

UNITED STATES of America, Plaintiff–Appellee,

v.Alexander Michael ROY, Defendant–Appellant.

No. 12–15093.

United States Court of Appeals,Eleventh Circuit.

Aug. 5, 2014.

James Vincent Hayes, Kathleen Mary Salyer, Anne Ruth Schultz, Wifredo A. Ferrer, U.S. Attorney's Office, Miami, FL, Carmen M. Lineberger, U.S. Attorney's Office, Fort Pierce, FL, for Plaintiff–Appellee.

Paul Michael Rashkind, Michael Caruso, Federal Public Defender, Federal Public Defender's Office, Miami, FL, for Defendant–Appellant.

Alexander Michael Roy, Tucson, AZ, pro se.

Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 2:12–cr–14022–KMM–1.

Before ED CARNES, Chief Judge, WILSON, Circuit Judge, and DALTON, ^* District Judge.

WILSON, Circuit Judge:

This appeal involves a defense attorney's temporary absence from the courtroom at his client's trial when inculpatory testimony was admitted into evidence and contributed to his conviction. Appellant Alexander Michael Roy (Roy) alleges that his criminal conviction was obtained in violation of the Sixth Amendment and the Supreme Court's holding in United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 2047, 80 L.Ed.2d 657 (1984), which creates a presumption of prejudice and requires a new trial when counsel is absent during a “critical stage” of the trial. Because (1) Roy was a sole defendant during his criminal trial, (2) the afternoon session of Roy's trial commenced while his counsel was actually and physically absent, and (3) during that absence, evidence directly inculpating Roy in a crime for which he was eventually convicted was presented to the jury, we conclude that Roy was denied counsel at a critical stage, and based on Cronic, we are required to reverse Roy's conviction as to all counts of the indictment and remand the case to the district court for a new trial.

I.

Pursuant to a “reverse sting” operation conducted in conjunction with the Osceola County Sherriff's Office (OCSO), Detective Athena Ross of the Sumter County Sherriff's Office (SCSO) placed an advertisement on Craigslist purportedly soliciting sex for two women. Roy responded to the advertisement, after which Ross, acting undercover, told Roy that the advertisement was for herself, a thirty-year-old woman named Denise, and her daughter, a thirteen-year-old girl named Torie. Roy, “Denise,” and “Torie” (played by a second undercover SCSO detective) discussed various potential sexual activities by email, telephone, and text message. Eventually, they arranged a meeting at a Waffle House restaurant in Kissimmee, Florida. Roy drove to the restaurant and entered the parking lot, but he drove away without ever parking his vehicle. OCSO deputies pulled him over and arrested him, finding condoms and lubricant in his pockets.

OCSO conducted two searches of Roy's home, leading to the seizure of a desktop computer, a laptop, a thumb drive, and three compact discs, all of which contained photographs and videos containing child pornography. Detectives also found the text of online conversations Roy had with L.B., a minor with whom Roy had carried on a romantic relationship. L.B. was depicted in some of the pornography found on his computer, which Roy himself created. Much of the child pornography depicted other underage girls.

Roy was indicted by a federal grand jury in the Southern District of Florida on one count of enticing or attempting to entice a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b) (Count 1) and four counts of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2) (Counts 2–5). A motion to suppress the evidence seized during the execution of the warrants was denied.

During a portion of Roy's jury trial, defense counsel was absent from the courtroom immediately following a lunchtime recess. There was no explanation for the absence in the record. Prior to the recess, the court had stated that the trial would recommence at 1:30 p.m. Instead, it started at 1:29 p.m. without defense counsel present; counsel did not arrive until 1:36 p.m. The record does not reflect any reaction by the court or the government either to counsel's absence or to his late arrival, though the court reporter did note both in the transcript. During counsel's absence, the government offered the following testimony from its computer forensics expert witness, Detective Charlie Longson of OCSO:

Q. Now, did you have occasion to find during your forensic examination a folder on the desktop computer named “My Pictures,” which would fall within the “My Documents” file that was on that computer?

A. Yes, I did.

Q. And within the “My Pictures” folder, were there other subfolders?

A. Yes.

Q. And how were they categorized within that general folder of “My Pictures”?

A. Those folders were categorized by date, the year first, month second, and the date third.

Q. And were you able to determine any folders that had—or contained notable images within them?

A. Yes. I did find folders with notable images.

Q. And what were—what was the first folder of concern that you found?

A. The first one I found was named “2006–03–11.”

Q. And would that folder have been created by a user of that computer?

A. Yes, it was.

Q. And did you find any images within that folder?

A. Yes, I did. I found six images.

Q. And would you please describe the images to the ladies and gentlemen of the jury within that March 11, 2006, folder that you found?

A. These images are a nude white female who was bound to a table by her feet with rope. The subject was laid across the table and had her head covered with an orange cloth which was secured around her neck with silver duct tape.

Q. Were you able to determine forensically how those pictures had been taken?

A. Yes. They were taken with a Kodak v530 zoom digital camera.

Q. And were you able to determine forensically a date and time those images were taken?

A. Yes, I was. These were taken on March the 10th, 2005, at 6:49 p.m.

Counsel returned soon after this exchange and, upon his return, did not raise any objections. Direct examination of Detective Longson continued uninterrupted. Detective Longson later testified as to the identity of the individual portrayed in the photographs, L.B., as well as her date of birth: May 9, 1989. The jury found Roy guilty on all counts, and the district court sentenced him to life imprisonment.

Roy raises four claims on appeal. Of these, we address only the Sixth Amendment denial of counsel claim. Specifically, Roy contends that his counsel's absence occurred during a critical stage of trial when inculpatory evidence was admitted against him and that, therefore, he is entitled to a new trial pursuant to Cronic, 466 U.S. at 658–59, 104 S.Ct. at 2046–47.

II.

“The claim that the temporary absence of trial counsel during the taking of evidence constitutes a Sixth Amendment violation presents a mixed question of law and fact and, as such, is subject to plenary review.” Vines v. United States, 28 F.3d 1123, 1127 (11th Cir.1994).

A criminal defendant is entitled to the “Assistance of Counsel for his defence.” U.S. Const. amend. VI. In Cronic, the Supreme Court “conclude [d] that a trial is unfair if the accused is denied counsel at a critical stage of his trial.” 466 U.S. at 659, 104 S.Ct. at 2047; see also Bell v. Cone, 535 U.S. 685, 695–96, 122 S.Ct. 1843, 1851, 152 L.Ed.2d 914 (2002) (listing the three bases for the Cronic presumption: (1) “complete denial of counsel,” including at a critical stage; (2) failure by counsel “to subject the prosecution's case to meaningful adversarial testing;” and (3) “where counsel is called upon to render assistance under circumstances where competent counsel very likely could not”).

A.

Roy contends that he was denied counsel at a critical stage of his trial when the government recommenced direct examination of Detective Longson during his counsel's absence from the courtroom. We must first decide, then, whether the portion of trial conducted in the absence of defense counsel was in fact a critical stage. Although there is no strict test or definition for a critical stage of trial, the Supreme Court, other United States Courts of Appeals, and our own precedent provide us with guideposts to help answer that question.

In Vines, we did not apply a Cronic presumption of prejudice when Vines's lawyer was absent during the presentation of testimony to the jury. 28 F.3d at 1128. Vines was charged with possession of cocaine with intent to distribute and conspiracy to possess cocaine with intent to distribute. Id. at 1125. The district court excused Vines's counsel on the first day of trial at 4:15 pm.¹Id. at 1125–26. During his absence, two witnesses testified. Id. at 1126. One witness testified about the arrest of Vines's co-defendant. Id. The second witness, who was part owner and operator of the warehouse where the shipment containing the cocaine was received, “simply testified about leasing the space.” Id. Vines was convicted of the possession charge but was acquitted of conspiracy. Id. On appeal from the district court's denial of his 28 U.S.C. § 2255 motion, “we decline[d] to give birth to a rule that the taking of evidence is necessarily a critical stage of trial [and found] that no evidence directly inculpating Vines was presented during his counsel's absence.” Id. at 1128. Because “no evidence directly inculpating [Vines was] presented while [his] counsel [was] absent, we decline[d] to hold that counsel was absent during a critical stage of trial within the meaning of Cronic.” Id.

Vines, however, does not control our analysis because counsel here was absent during the presentation of testimony directly inculpating Roy. Before counsel returned, the following evidence was admitted through the testimony of Detective Longson, a witness for the prosecution:

Q. And how were they categorized within that general folder of “My Pictures”?

A. Those folders were...