United States v. Charles Venditti ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 20 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-30017
Plaintiff-Appellee, D.C. No.
1:18-cr-00147-DLC-1
v.
CHARLES EUGENE VENDITTI, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, District Judge, Presiding
Submitted April 16, 2021**
Seattle, Washington
Before: HAWKINS and McKEOWN, Circuit Judges, and PREGERSON,***
District Judge.
Charles Eugene Venditti appeals his jury conviction for five counts related
to methamphetamine possession and distribution. The parties are familiar with the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Dean D. Pregerson, United States District Judge for
the Central District of California, sitting by designation.
facts, so we do not repeat them here. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
We review for plain error unpreserved claims of juror bias and other issues
raised for the first time on appeal. Fed. R. Crim. P. 52(b); United States v. Olano,
62 F.3d 1180, 1187–88, 1192 (9th Cir. 1995). Ineffective assistance of counsel
claims are reviewed de novo. United States v. Benford, 574 F.3d 1228, 1230 (9th
Cir. 2009).
Venditti first contends that he was deprived of his right to an impartial jury.
See United States v. Olsen, 704 F.3d 1172, 1188–89 (9th Cir. 2013). He argues
that Juror 2 exhibited actual, implied, and McDonough-style bias. Id. at 1189.
Venditti further argues that Juror 2 poisoned the jury because she spent the first
day of trial with the other jurors and returned to the jury room on the second day of
trial until being dismissed. Because Venditti’s trial counsel did not raise a
challenge to this juror—and, in fact, agreed with the court and government that
Juror 2 should be excused after Juror 2 informed the court of her personal
knowledge of Venditti—we review for plain error. See Fed. R. Crim. P. 52(b);
Olano, 62 F.3d at 1187–88. Even assuming that Juror 2 was dishonest during voir
dire or biased, Venditti has not met his burden to establish that allowing the trial to
proceed affected the trial’s outcome and therefore that there was plain error: Juror
2 was excused and took no part in deliberations, and there is no evidence that she
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shared with other jurors the prejudicial information that she had about Venditti’s
criminal history. Cf. United States v. Mitchell, 568 F.3d 1147, 1154 (9th Cir.
2009) (“[W]here the evidence of juror bias is weak, and neither party challenged
the juror for cause, it is not error for the district court to allow the juror to serve at
trial.”). Any error does not rise to the level of structural error. See Olano, 62 F.3d
at 1189.
Venditti also argues that he was denied his statutory and constitutional right
to be present at a critical stage of the trial due to his absence at the in-chambers
sidebar where Juror 2 was questioned. See Fed. R. Crim. P. 43(a); Campbell v.
Wood, 18 F.3d 662, 671 (9th Cir. 1994) (en banc). However, Venditti’s trial
counsel did not object to Venditti’s absence, and Venditti fails to point to anything
in the record indicating that he was actively denied presence at the sidebar—in
fact, on the morning of the first day of trial, the court advised Venditti that he was
“welcome to be present at sidebar” anytime unless Venditti chose to stay seated.
Even if conducting continued voir dire out of Venditti’s earshot contravened Fed.
R. Crim. P. 43(a)(2) and his constitutional right, here too Venditti fails to establish
prejudice under plain error review: it is unlikely that his presence would have
yielded any different result at sidebar and, in any case, Juror 2 was excused. See
Fed. R. Crim. P. 52(b); Olano, 62 F.3d at 1187–88; see also United States v. Reyes,
764 F.3d 1184, 1193 (9th Cir. 2014) (violation of Rule 43(a)(2) harmless where
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evidence of guilt is overwhelming). Venditti’s claim that his trial counsel would
have moved for a mistrial had Venditti voiced concerns about jury tainting during
the sidebar is best treated as a claim for ineffective assistance of counsel, which we
do not address here.
Finally, Venditti argues that he was denied his right to effective assistance of
counsel because his trial counsel did not request his presence at sidebar or move
for a mistrial. Strickland v. Washington, 466 U.S. 668, 687 (1984). We generally
review ineffective assistance of counsel claims on direct appeal only under two
extraordinary circumstances: when the record is sufficiently developed to permit
review of the issue, or when legal representation is so inadequate that it obviously
denies the Sixth Amendment right to counsel. Benford, 574 F.3d at 1231. Neither
of these circumstances is present here.
AFFIRMED.
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