In United States v. Garcia, No. 14-11845 (Oct. 19, 2018) (Marcus, Wilson, Graham (S.D. Ohio)), the Court affirmed the defendant’s tax-related convictions.

The primary issue was whether reversal was required because the district judge resumed trial without the presence of either the defendant or defense counsel for 3 to 10 minutes, during which time the government introduced inculpatory testimony.  The parties agreed that this was obviously constitutional error, and, although the Court found it troubling, the Court held that the error did not warrant reversal because the defendant could not show prejudice.  Bound by the en banc decision in Roy, the Court determined that this was trial error, rather than structural error, and it therefore could not presume prejudice.  The Court also found that the plain error, rather than the harmless error, standard of review applied, because the defendant had numerous opportunities to contemporaneously object to the error and failed to do so.  And, while the result might have been different had the government bore the burden to show harmlessness beyond a reasonable doubt, the Court concluded that the defendant could not meet her burden show that the plain error affected her substantial rights in light of: the cumulative nature and brevity of the missed testimony, its irrelevance to the most hotly contested issued at trial, the strength of the government’s case, and robust cross examination by the defense.
The Court rejected the defendant’s remaining arguments, all of which were unpreserved as well.  First, it found that the indictment included all of the elements of a Klein conspiracy under 18 U.S.C. 371, and it was therefore legally sufficient on that count.  Second, although the court committed plain error by instructing the jury on an attempt theory that was not charged, that error did not affect her substantial rights because it was unlikely that the jury convicted her on such a theory.  Third, the defendant could not show that any erroneous instruction on the Klein conspiracy affected her substantial rights, especially given that the jury convicted her on the underlying substantive counts.  Fourth, the defendant invited the district court’s failure to give a multiple objects/unanamity instruction for the conspiracy charge.  Fifth, the court properly instructed the jury on the “material” element of the substantive tax counts.  And, lastly, the court properly instructed the jury on “aiding and abetting,” observing that the Supreme Court’s decision in Rosemond clarified rather than changed the law on that point and did not render the pattern instruction incorrect.
Judge Wilson concurred.  He reiterated his dissenting view in Roy that the error here should be deemed structural, which would have precluded (rather than encouraged) the district judge from continuing his unconstitutional courtroom policies, but he recognized that Roy foreclosed that conclusion.  He disagreed with the majority, however, that plain error rather than harmless error review applied.  He nonetheless concluded that the government had met its burden to show that the error was harmless beyond a reasonable doubt.