United States v. William Cordova ( 2015 )


Menu:
  •  United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    Argued September 17, 2015          Decided November 24, 2015
    No. 11-3034
    UNITED STATES OF AMERICA,
    APPELLEE
    v.
    WILLIAM CORDOVA, ALSO KNOWN AS MARIO, ALSO KNOWN AS
    CENTINELLA,
    APPELLANT
    Consolidated with 11-3043, 11-3044
    Appeals from the United States District Court
    for the District of Columbia
    (No. 1:08-cr-00167-1)
    (No. 1:08-cr-00167-2)
    (No. 1:08-cr-00167-4)
    Robert S. Becker, Anthony D. Martin, and Mary E. Davis,
    all appointed by the court, argued the causes and filed the
    joint briefs for Appellants. Sherlock V. Grigsby entered an
    appearance.
    Lauren R. Bates, Assistant U.S. Attorney, argued the
    cause for Appellee. With her on the brief were Ronald C.
    Machen Jr., U.S. Attorney at the time the brief was filed, and
    2
    Elizabeth Trosman, Elizabeth H. Danello, Gilberto Guerrero,
    Jr., and Nihar Ranjan Mohanty, Assistant U.S. Attorneys.
    Before: TATEL, MILLETT, and WILKINS, Circuit Judges.
    PER CURIAM: William Cordova, Jose Gutierrez, and
    Melvin Sorto appeal their convictions for conspiracy, violent
    crimes in aid of racketeering, murder, assault, and federal and
    District of Columbia weapons offenses. They raise eight
    claims, four of which we address here; the others we address
    in a judgment issued contemporaneously with this opinion.
    Finding none of the challenges examined herein meritorious,
    we affirm as to these issues.
    I.
    Cordova, Gutierrez, and Sorto (collectively “Appellants”)
    belong to Mara Salvatrucha, an international criminal gang
    also known as MS-13. All three men are originally from El
    Salvador. When Cordova and Gutierrez arrived in the District
    of Columbia, they moved in with Misael Esquina-Flores and
    his parents, Feliciana Esquina-Flores and Tomas Esquina,
    whom they had known in El Salvador. Local MS-13
    members treated Cordova and Gutierrez deferentially because
    they came from El Salvador. Believing that the local gang
    presence was weak, Cordova and Gutierrez actively
    encouraged members to commit more violent crimes to
    improve MS-13’s status in the local gang hierarchy.
    On the evening of July 30, 2006, Cordova and Gutierrez
    pulled up next to another car, announced to the three men
    inside that they were MS-13 members, ordered the men not to
    move, and then opened fire, injuring those inside. None of
    the victims died.
    3
    On April 22, 2007, Cordova and Gutierrez struck again,
    this time joined by Sorto. In retaliation for an attack on MS-
    13 by members of a rival gang, the three men trailed the rival
    gang members back to their home turf. They then opened fire
    on the group, killing Edwin Ventura and severely wounding
    Nelson Maldonado.
    Later in 2007, Cordova and Gutierrez shot Feliciana
    Esquina-Flores while she was waiting for a bus. Although
    Feliciana survived the shooting, she is now blind.
    Based on these three armed assaults, the government
    charged Appellants with conspiracy, violent crimes in aid of
    racketeering, murder, assault, and federal and District of
    Columbia weapons offenses. A jury convicted Appellants on
    all counts.
    II.
    Cordova, Gutierrez, and Sorto argue that court-imposed
    restrictions limiting their personal access to certain discovery
    documents deprived them of their Sixth Amendment rights to
    effective representation and to assist in their defense.
    Because they suffered no plausible prejudice, we reject the
    argument.
    A.
    At a pretrial conference, the District Court ordered the
    government to disclose to Appellants every Thursday any
    prior statements of witnesses who would be called to testify
    the following week. Those prior statements are commonly
    referred to as “Jencks Act materials,” 
    18 U.S.C. § 3500
    . The
    District Court’s order was more favorable to Appellants in
    that regard than the Jencks Act’s requirement of disclosure
    4
    after a government witness testifies on direct examination, 
    id.
    § 3500(b); see also FED. R. CRIM. P. 26.2.
    The District Court subsequently issued a protective order
    directing that Appellants could only review the Jencks Act
    materials in the physical presence of counsel or, as later
    clarified, defense paralegals or investigators. The order
    forbade Appellants’ possession of the materials or copies of
    them. For some unknown reason, the record contains nothing
    at all about the entry of this protective order. There is no
    protective order in the record, no notice of its entry on the
    docket, no trace of an in-court, on-the-record discussion
    concerning the order’s entry, and no written or transcribed
    explanation of the bases for the judge’s decision to adopt the
    order. All that the record and briefing indicate is that there
    was such a protective order and that all parties were aware of
    its terms. None of the parties had any explanation for why the
    protective order and all material surrounding its entry are
    missing from the record.
    Midway through the second week of trial, counsel for
    Gutierrez asked the court to reconsider the protective order.
    Gutierrez, whose English was limited, sought to “have the
    Jencks [materials] so that he could study it so that [meetings
    with counsel] would go a lot quicker.” Trial Tr. 3 (Nov. 3,
    2010, Afternoon Session). His attorney explained that,
    “instead of [counsel] translating the documents, [Gutierrez]
    would have had a chance to review them and think about
    them, and make our meeting[s] shorter and also more
    productive.” Id.
    The government opposed the request, citing concerns
    about security and the safety of witnesses involved in this
    prosecution of alleged MS-13 gang members.                The
    government insisted that, “for those men to have that [Jencks]
    5
    information back at the D.C. jail, floating around, free rein,
    from inmate to inmate, is a disaster.” Id. at 62.
    Gutierrez responded that the protective order could not
    rest upon alleged concerns about the identity of witnesses
    because that information was already known to Appellants
    and could easily be shared with others regardless of any
    restrictions on their access to the Jencks Act materials. The
    requested modification, Gutierrez’s counsel emphasized, was
    only to “get a copy when he leaves here in the evening of the
    Jencks material” for upcoming witnesses “so that he could
    review those, and . . . we could discuss them.” Id. at 62-63.
    The District Court denied Gutierrez’s request “for the
    reasons previously articulated” – reasons that, alas, are not
    preserved anywhere in the record. Id. at 63.
    The next day, after learning that a defense investigator
    had previously and mistakenly left some Jencks Act materials
    with Sorto at the jail and that Sorto had carried the documents
    “back and forth” to trial, id. at 65, the District Court instructed
    the Marshals not to permit Appellants to take any papers to or
    from the court at any time. Counsel then expressed concern
    that this new restriction would prevent Appellants from being
    able to keep and review their own notes from the trial or, once
    back at the jail, to write down thoughts or questions to bring
    to counsel the following day. That led to an in camera
    meeting between the District Court, counsel, and the Marshals
    Service, during which the parties agreed that:
    At the end of each court date, the counsel for the
    defendants will collect all papers of whatever kind
    that may have been either brought to court or used
    between counsel and their client, and keep it in their
    possession – counsel’s possession – overnight. With
    regard to returning to court the next day, the
    6
    defendants will be permitted, if they wish, to make
    notations or jot down their thoughts on paper that
    they happen to have access to at the prison for the
    purposes of follow-up discussions with their counsel
    when they return to court whenever the next day the
    court is in session.
    Trial Tr. 78-79 (Nov. 4, 2010, Afternoon Session). The
    District Court reiterated that Appellants would not be
    permitted to “leave the court with anything at the end of the
    day” and that “under no circumstances shall there be any
    additional copies of the discovery that are presented to the
    defense that are made for working purpose or for anyone else
    to see, nor under any circumstances are [defense paralegals,
    investigators, and associates] to provide a copy to the
    defendants to keep and take with them back to the jail.” Id. at
    79-80.
    B.
    Under the Sixth Amendment, criminal defendants have a
    constitutional right to “be confronted with the witnesses
    against [them], . . . and to have the assistance of counsel for
    [their] defense.” U.S. CONST. amend. VI. Appellants assert
    that the protective order’s restrictions on their access to
    Jencks Act materials violated their Sixth Amendment rights
    by hampering counsel’s ability to mount, and Appellants’
    ability to participate in, an effective defense against the
    government’s witnesses. More specifically, Appellants argue
    that requiring defense team members to superintend their
    review of discovery materials pressured the defense into
    either (1) devoting time to sitting with Appellants as they
    reviewed papers rather than dedicating that time to other trial
    preparations, or (2) cabining the time Appellants had to
    review the papers. Either way, Appellants argue, the order
    7
    deprived counsel of the full benefit of Appellants’ individual
    input on the Jencks Act materials, which could have
    contributed    important     contextual    information     and
    impeachment evidence. Appellants also contend that, had
    they been afforded greater access to the Jencks Act materials,
    they would have been able to assist their attorneys in
    identifying potential credibility issues and new topics for
    investigation.
    The Federal Rules of Criminal Procedure give district
    courts the discretion to enter protective orders (subject always
    to the Sixth Amendment’s limitations). “At any time the
    court may, for good cause, deny, restrict, or defer discovery or
    inspection, or grant other appropriate relief.” FED. R. CRIM.
    P. 16(d). Moreover, a “trial court can and should, where
    appropriate, place a defendant and his counsel under
    enforceable orders against unwarranted disclosure of the
    materials which they may be entitled to inspect.” Alderman v.
    United States, 
    394 U.S. 165
    , 185 (1969). The burden of
    showing “good cause” is on the party seeking the order, and
    “among the considerations to be taken into account by the
    court will be the safety of witnesses and others, a particular
    danger of perjury or witness intimidation, [and] the protection
    of information vital to national security[.]” FED. R. CRIM. P.
    16(d) Advisory Committee’s Note to 1966 Amendment to
    Former Subdivision (e); see also 2 CHARLES ALAN WRIGHT &
    PETER J. HENNING, FEDERAL PRACTICE AND PROCEDURE
    § 262 (4th ed. 2009).
    We ordinarily review a district court’s balancing of those
    factors in issuing a protective order for an abuse of discretion.
    See United States v. Mejia, 
    448 F.3d 436
    , 456 (D.C. Cir.
    2006); cf. United States v. Celis, 
    608 F.3d 818
    , 829-40 (D.C.
    Cir. 2010) (no Sixth Amendment violation where “[t]he
    protective order and its management by the district court
    8
    reflect an appropriate balancing of interests in the relevant
    case-specific context”). But here, the complete dearth of
    information in the record regarding the issuance of the
    protective order confounds that effort. There is no visible
    exercise of discretion or balancing of factors by the District
    Court for us to review. Cf. United States v. Williams, 
    951 F.2d 1287
    , 1290 (D.C. Cir. 1991) (“The purpose of an appeal
    is to review the judgment of the district court, a function we
    cannot properly perform when we are left to guess at what it
    is we are reviewing.”).
    Likewise, in reviewing Appellants’ challenge to the
    protective order’s limitations on their access to the Jencks Act
    materials, we ordinarily would apply harmless error review if
    Appellants had preserved an objection to the order below and
    plain error review if they had not. However, the complete
    absence of any record of the order’s entry – and thus
    necessarily of any objections to it – upends that inquiry. It
    would seem less than fair to hold Appellants’ feet to the fire
    for not documenting their prior objections to an
    undocumented order entered for undocumented reasons.
    No matter. Even assuming that entry of the protective
    order was an abuse of discretion, there must be some material
    prejudice to Appellants to establish either harmless or plain
    error. United States v. Olano, 
    507 U.S. 725
    , 732 (1993) (to
    establish plain error, defendants must show, inter alia, that the
    error affected their “substantial rights”); United States v.
    Merlos, 
    8 F.3d 48
    , 50 (D.C. Cir. 1993) (“[B]oth harmless
    error and plain error review require us to determine whether
    the error was prejudicial.”); FED. R. CRIM. P. 52(a) & (b)
    (same for both harmless error and plain error). The
    government has demonstrated beyond a reasonable doubt that
    there was no such prejudice here.
    9
    To begin with, even though Appellants’ individual use
    and access were subject to conditions, the effects of those
    limitations were counterbalanced by the District Court’s
    decision to afford them four to eight days’ advance receipt of
    the materials when the Sixth Amendment and Jencks Act only
    require disclosure after the witness has testified. See 
    18 U.S.C. § 3500
    ; Palermo v. United States, 
    360 U.S. 343
    , 353
    n.11 (1959) (“The statute as interpreted does not reach any
    constitutional barrier.”); see also Scales v. United States, 
    367 U.S. 203
    , 257-58 (1961) (“That the procedure set forth in the
    [Jencks Act] statute does not violate the Constitution . . . was
    assumed by us in Palermo[.]”); United States v. Stanfield, 
    360 F.3d 1346
    , 1356-58 (D.C. Cir. 2004) (noting that “the time
    allotted for review of Jencks material is often relatively brief,”
    and finding no abuse of discretion where district court gave
    defense counsel only nine minutes to review “a very thick
    stack of papers” after witness’s direct testimony). The
    District Court, in other words, built in a window of time that
    ameliorated the practical impact of the access conditions.
    Moreover, defense counsel had full and unfettered access
    to the Jencks materials at all relevant times, and the protective
    order did not otherwise limit their ability to discuss the
    materials with Appellants or to obtain their input.
    The proof that the District Court’s balance did not
    prejudice Appellants is in the pudding. The District Court
    invited Appellants to ask for extra time or a continuance if
    needed to review and investigate the Jencks Act materials.
    See Pretrial Conference Tr. 46-47 (October 14, 2010) (after
    counsel for Cordova represented that he would “be moving
    for a break in the trial” if a “real difficulty in investigating”
    arose, District Court said: “That’s fine. And you will get it”);
    id. at 47 (District Court indicated that if the defense “need[s]
    time to explore it, we will suspend the trial”); id. at 48
    10
    (District Court assured defense counsel, “I am not going to let
    you be sandbagged”). The record does not indicate that any
    Appellant ever expressed a need for that additional time. Nor
    – as the government points out – in all the intervening time,
    have Appellants identified a single concrete instance in which
    their cross-examination or any other aspect of their defense
    would have changed if they had been given unconditional
    access to the Jencks Act materials. Cf. United States v. Emor,
    
    573 F.3d 778
    , 785-86 (D.C. Cir. 2009) (any error in
    government’s failure to produce potential Jencks Act material
    was harmless because defendant failed to show disclosure
    would have affected the trial’s outcome); Celis, 
    608 F.3d at 839-40
     (no error in trial court’s refusal to grant defendant
    continuances to review Jencks Act materials where the court
    adjusted the trial schedule to afford the defense additional
    time, defendant did not identify what additional information
    she hoped to uncover or how it would have affected the result
    at trial, and counsel vigorously and effectively cross-
    examined the witness in question). The record thus forecloses
    any colorable claim of actual prejudice, and that is fatal to
    Appellants’ Sixth Amendment claim.
    III.
    Cordova, Gutierrez, and Sorto argue that the trial judge
    erred when he denied Gutierrez’s motion to recuse himself in
    response to an allegedly threatening letter.
    A.
    Prior to trial, in a search conducted pursuant to a separate
    investigation, the government found a letter Gutierrez had
    written to an acquaintance named Liliana. The letter asked
    Liliana to “help me with the Lady of Sivar to silence everyone
    who is against me.” Opp. to Def.’s Recusal Mo. 3. The letter
    11
    then listed the judge, the prosecutors, potential witnesses, and
    Gutierrez’s codefendants in this case.
    Concerned that the letter could constitute a threat, the
    government informed the District Court about the letter’s
    existence and its plan to investigate further. After reviewing
    the letter, the government’s MS-13 expert in El Salvador
    opined that the letter’s reference to the “Lady of Sivar” could
    be referring to “a shot caller or a program runner from San
    Salvador” who would have the authority to order the named
    individuals killed. Id. at 4. The government also located
    Liliana, who interpreted the letter to mean that Gutierrez
    wanted her to send the names to a “witch doctor in El
    Salvador who would use magic to determine if one of the
    names listed was ‘snitching’ on Gutierrez.” Id. Unable to
    afford the witch doctor’s fee, however, Liliana never followed
    up.
    Gutierrez moved for the trial judge’s recusal on the basis
    of the letter. The judge denied the motion, explaining that
    given Liliana’s statement and the fact that Gutierrez had
    written the letter “well over a year ago,” he had “no basis to
    think whatsoever that any of these defendants [were] . . .
    intending or trying in any way to be harmful to this Court or
    anyone else.” Pretrial Conf. Tr. 50 (Oct. 14, 2010); see also
    Trial Tr. 17-18 (Oct. 18, 2010). Therefore, the judge did not
    “believe it would affect my conducting of this trial and ruling
    on evidence and ruling on Motions in any way.” Pretrial
    Conf. Tr. 50 (Oct. 14, 2010). He also rejected any additional
    security for himself, his family, or the trial.
    When the government later sought to introduce the letter
    as evidence of Gutierrez’s consciousness of guilt, the judge
    refused to admit it on the ground that it was substantially
    more prejudicial than probative under Federal Rule of
    12
    Evidence 403’s balancing test. He reasoned that the “total
    lack of clarity as to what exactly” Gutierrez’s intent had been
    in writing the letter and the consequent “interpretation by
    experts” would only confuse the jury. Trial Tr. 17 (Nov. 17,
    2010, Morning Session).
    B.
    The recusal statute, 
    28 U.S.C. § 455
    (a), requires that a
    judge “disqualify himself in any proceeding in which his
    impartiality might reasonably be questioned.” We review a
    district court’s denial of a motion to recuse for abuse of
    discretion, “appl[ying] an ‘objective’ standard: Recusal is
    required when ‘a reasonable and informed observer would
    question the judge’s impartiality.’” S.E.C. v. Loving Spirit
    Found. Inc., 
    392 F.3d 486
    , 493 (D.C. Cir. 2004) (quoting
    United States v. Microsoft Corp., 
    253 F.3d 34
    , 114 (D.C. Cir.
    2001) (en banc) (per curiam)). This standard requires that we
    take the perspective of a fully informed third-party observer
    who “understand[s] all the relevant facts” and has “examined
    the record and the law.” United States v. Holland, 
    519 F.3d 909
    , 914 (9th Cir. 2008) (internal quotation marks omitted)
    (alteration in original).
    This Circuit has never decided a recusal claim based on
    an alleged threat against the trial judge. But other circuits
    have, and they recognize that even a legitimate threat does not
    necessarily require recusal. In re Basciano, 
    542 F.3d 950
    ,
    956 (2d Cir. 2008) (“Although a plot or threat, real or feigned,
    may create a situation in which a judge must recuse himself,
    recusal is not ordinarily or routinely required. Even where a
    threat is serious . . . a judge may appropriately decline to
    recuse himself, at least in some circumstances.” (internal
    citations omitted)); United States v. Gamboa, 
    439 F.3d 796
    ,
    817 (8th Cir. 2006), abrogated on other grounds by United
    13
    States v. O’Brien, 
    560 U.S. 218
     (2010) (“While a defendant’s
    threat against a judge may in some cases raise a sufficient
    question concerning bias on the part of that judge, recusal is
    not automatic on the mere basis of the judge’s knowledge of
    the threat.”); United States v. Cooley, 
    1 F.3d 985
    , 993-94
    (10th Cir. 1993) (noting that “threats or other attempts to
    intimidate the judge” “will not ordinarily satisfy the
    requirements for disqualification under § 455(a)”). Rather,
    the trial judge “must evaluate the threat itself to determine
    how much risk there is that it may be carried out and how
    much harm there would be if it were” to determine if the
    threat would cause a reasonable observer to question the
    judge’s impartiality. Holland, 
    519 F.3d at 914
    . “If it is a
    close case, the balance tips in favor of recusal.” 
    Id. at 912
    .
    Our sister circuits have identified several helpful factors
    to determine whether the trial judge should have recused
    himself. The Ninth Circuit listed three in United States v.
    Holland: (1) “[t]he defendant’s capacity to carry out the
    threat,” including whether the defendant has taken “concrete
    steps” or has accomplices; (2) “[t]he defendant’s demeanor
    and the context of the threat,” including whether the
    defendant was “serious in carrying out the threat”; and (3)
    whether the “perceived purpose of the threat” was to “force
    recusal and manipulate the judicial system.” 
    Id. at 914-15
    .
    Under the third factor, receipt of a threat from an
    “extrajudicial source” decreases the risk that the defendant is
    attempting to manipulate the process and accordingly “has a
    higher potential for generating a situation where the judge’s
    impartiality might reasonably be questioned.” United States
    v. Greenspan, 
    26 F.3d 1001
    , 1006-07 (10th Cir. 1994) (citing
    Liteky v. United States, 
    510 U.S. 540
     (1994)). The Second
    and Tenth Circuits have identified a fourth factor: whether the
    threat resulted in any conduct by the court other than matter-
    of-course judicial rulings that could be viewed as prejudicial
    14
    toward the defendant. See 
    id.
     (reasoning that the district
    court’s decision to accelerate sentencing and its refusal to
    grant a continuance of the sentencing hearing “could have
    contributed to an appearance that the trial court was
    prejudiced against Greenspan” after receiving a death threat,
    as such measures made it “obvious[] [that the judge] took the
    threat very seriously”); Basciano, 
    542 F.3d at 957
     (finding no
    error in refusal to recuse in part because the court did nothing,
    other than ruling against the defendant, that would “reveal
    partiality”). Underlying several of these factors is an
    understanding that the judge’s subjective response to an
    alleged threat is relevant to our determination of whether an
    independent observer would expect the threat to impact the
    court’s rulings. See Greenspan, 
    26 F.3d at 1006-07
    .
    Here, Appellants argue that the judge’s refusal to recuse
    “violated the spirit, if not the requirements of [Section]
    455(a)” because (1) he continued to enforce the protective
    order, which implied that he believed Appellants were
    dangerous, despite his conclusion that there was no active
    threat against him and (2) the government continued to argue
    that the letter was threatening when it sought to introduce the
    letter as evidence of Gutierrez’s consciousness of guilt.
    Appellants’ Br. 27-32. Applying the factors identified by our
    sister circuits, we reject these arguments.
    It is true that Gutierrez had the “capacity to carry out” a
    threat, as he was a respected member of a violent international
    criminal organization with a broad geographic reach. See
    Holland, 
    519 F.3d at 914-15
    . And because the government
    discovered the letter during an unrelated investigation, it is
    highly unlikely that Gutierrez intended just to delay or disrupt
    the proceedings in this case or force the judge to recuse
    himself. See Greenspan, 
    26 F.3d at 1006-07
    . Contrary to
    Appellants’ contention, however, the judge’s rulings on the
    15
    protective order suggest no bias. The government introduced
    ample evidence regarding witness safety to support the order,
    including witnesses’ testimony that MS-13 members would
    kill them for testifying, the seizure from one Appellant’s cell
    of jail records containing witnesses’ names and locations
    within the jail, and Cordova’s recorded telephone call
    threatening witnesses. See Basciano, 
    542 F.3d at 957
    ; see
    also Liteky, 
    510 U.S. at 556
     (Judicial conduct “consist[ing] of
    judicial rulings, routine trial administration efforts, and
    ordinary admonishments . . . to counsel and to witnesses” that
    “neither (1) rel[y] upon knowledge acquired outside such
    proceedings nor (2) display[] deep-seated and unequivocal
    antagonism that would render fair judgment impossible”
    cannot form the basis for recusal.). This evidence stood in
    contrast to the stale letter – more than a year old – and
    nothing in the record indicates that Gutierrez or anyone else
    took affirmative steps toward carrying out any threat. See
    Holland, 
    519 F.3d at 916
    . Further, although the government
    argued that the letter was threatening, the U.S. Marshals and
    the judge credited Liliana’s statement that the letter had no
    threatening purpose and the judge requested no additional
    security for himself, his family, or the trial. See 
    id.
     (noting
    that “[t]he district court did not consider the threats or
    Holland’s capacity to carry them out serious enough to refer
    the incident to the FBI, nor did he request additional security
    from the U.S. Marshal’s service”); cf. In re Nettles, 
    394 F.3d 1001
     (7th Cir. 2005) (holding that recusal was required where
    the defendant made an unquestionably legitimate threat to
    bomb the Seventh Circuit courthouse).
    The circumstances show that a reasonable and informed
    observer would not perceive the letter to give rise to a
    “significant risk” that the trial judge would “resolve the case
    on a basis other than the merits.” Holland, 
    519 F.3d at 914
    .
    16
    We therefore conclude that he did not abuse his discretion in
    declining to recuse himself.
    IV.
    Cordova, Gutierrez, and Sorto contend that the District
    Court’s decision to conduct a preliminary conference on jury
    instructions in chambers – outside of their presence –
    amounted to a violation of their constitutional right to be
    present throughout their trial, and of Federal Rule of Criminal
    Procedure 43. Appellants further argue that the District
    Court’s failure to create a record deprived them of effective
    representation before this Court.
    A.
    On the morning of November 29, 2010, the District Court
    held an in camera, off-the-record conference with counsel to
    discuss proposed jury instructions.        When proceedings
    continued on the record later that afternoon, the District Court
    summarized what had occurred, noting that the judge and
    attorneys had met to review the latest draft of the jury
    instructions “and to determine which, if any of them, required
    oral argument because of differences of opinion between the
    government and the defense with regard to the content of the
    instructions as currently constructed.” Trial Tr. 4 (Nov. 29,
    2010). The District Court reported that the “overwhelming
    majority of the instructions . . . were not controversial and
    didn’t require follow-up discussion on the record and
    argument,” though he did acknowledge the “fairly sizable”
    list of potential instructions that did warrant follow-up and
    advocacy on the record, “and that’s why we’re here right
    now.” 
    Id.
     No objection was made to the off-the-record
    nature of the proceeding at this time, and the District Court
    and parties proceeded to review the disputed instructions on
    the record.
    17
    Two years after the trial had concluded, appellate counsel
    requested a hearing to reconstruct the record of the November
    29 in camera conference. During this hearing, the trial court,
    trial defense counsel, and the prosecution attempted to
    recount exactly what had occurred during the off-the-record
    conference, though the recollections were not much more
    informative than the District Court’s summary immediately
    following the conference. The District Court did reflect upon
    the purpose for holding the instruction conference as it did,
    explaining that
    the Court wanted to get in an informal setting where
    we could have a quick exchange back and forth, try
    to determine where there would be objections and
    where there wouldn’t. And where there would be
    objections, then we would obviously come in to
    court and they would be voiced on the record and
    argued on the record; both sides could present their
    arguments.
    Status Conf. Tr. 29 (Feb. 6, 2013). Counsel for the
    government agreed with the District Court’s recollection that
    “a lot of it was boilerplate” and without objection, id. at 30,
    but also noted that where there were substantive exchanges
    “we came back into the courtroom and we did it all over again
    so that there was no misunderstanding as to . . . what positions
    either side had with respect to the . . . jury instructions,” id. at
    32.
    B.
    Because no objection to the in camera discussion was
    made – either prior to the conference taking place, or once the
    proceedings resumed on the record – we examine this issue
    only for plain error. See United States v. Purvis, 
    706 F.3d 18
    520, 522 (D.C. Cir. 2013). An appellate court may exercise
    its discretion to notice a forfeited error if there is (1) error, (2)
    that is plain, and (3) that affects substantial rights, but only if
    (4) the error seriously affects the fairness, integrity, or public
    reputation of judicial proceedings. Id.; accord Johnson v.
    United States, 
    520 U.S. 461
    , 466-67 (1997); see also FED. R.
    CRIM. P. 52(b). Appellants have not shown plain error here.
    A defendant’s constitutional right to be present during
    trial proceedings, while largely rooted in the Sixth
    Amendment’s Confrontation Clause, is protected by the Due
    Process Clause of the Fifth Amendment in situations where
    the defendant is not actually confronting a witness or
    evidence against him. United States v. Gagnon, 
    470 U.S. 522
    ,
    526 (1985) (per curiam). A defendant has a due process right
    to be present “whenever his presence has a relation,
    reasonably substantial, to the fullness of his opportunity to
    defend against the charge.” Snyder v. Massachusetts, 
    291 U.S. 97
    , 105-06 (1934), overruled in part on other grounds by
    Malloy v. Hogan, 
    378 U.S. 1
     (1964); accord Gagnon, 
    470 U.S. at 526
    . Indeed, this Court has recognized that “due
    process clearly guarantees that the defendant be allowed to be
    present ‘to the extent that a fair and just hearing would be
    thwarted by his absence.’” United States v. Gordon, 
    829 F.2d 119
    , 123 (D.C. Cir. 1987) (quoting Snyder, 
    291 U.S. at 108
    );
    see also Kentucky v. Stincer, 
    482 U.S. 730
    , 745 (1987) (“[A]
    defendant is guaranteed the right to be present at any stage of
    the criminal proceeding that is critical to its outcome if his
    presence would contribute to the fairness of the procedure.”);
    Gagnon, 
    470 U.S. at 526
    ; Faretta v. California, 
    422 U.S. 806
    ,
    819 n.15 (1975) (“[A]n accused has a right to be present at all
    stages of the trial where his absence might frustrate the
    fairness of the proceedings.”). But, as the Supreme Court
    noted in Snyder, the right to be present is guaranteed only to
    the extent that a fair and just hearing would be thwarted by a
    19
    defendant’s absence, “and to that extent only.” Snyder, 
    291 U.S. at 108
     (emphasis added). There is no guaranteed right to
    presence “‘when presence would be useless, or the benefit but
    a shadow.’” Gordon, 
    829 F.2d at 123
     (quoting Snyder, 
    291 U.S. at 106-07
    ).
    The right to presence has been codified in Federal Rule
    of Criminal Procedure 43. Gordon, 
    829 F.2d at 123
    ; see also
    United States v. Harris, 
    491 F.3d 440
    , 452 n.5 (D.C. Cir.
    2007). As relevant here, Rule 43 gives a defendant a right to
    be present at “every trial stage, including jury impanelment
    and the return of the verdict.” FED. R. CRIM. P. 43(a)(2).
    Certain exceptions, however, are identified by the Rule.
    Notably, the Rule carves out an exception to the presence
    requirement when “[t]he proceeding involves only a
    conference or hearing on a question of law.” FED. R. CRIM. P.
    43(b)(3). In such a case, the defendant need not be present.
    
    Id.
    The application of the above authority to the instant case
    reveals several reasons why the District Court did not plainly
    err by holding its preliminary jury instruction conference
    outside the presence of Appellants.
    First, there was no plain error under the Due Process
    Clause. Appellants have failed to show that a fair and just
    hearing was thwarted by their absence from the preliminary
    jury instruction conference. See Gordon, 
    829 F.2d at 123
    .
    Appellants have not pointed to any objection they would have
    raised had they been present for the in-chambers conference.
    Appellants have not demonstrated that their presence would
    have added anything to the discussion, nor have they shown
    that their presence would have had a reasonably substantial
    relation to their opportunity to defend against the charges
    against them.
    20
    Second, the preliminary jury instruction conference in
    this case falls within the “conference or hearing on a question
    of law” exception laid out in Rule 43(b)(3). See United States
    v. Perez, 
    612 F.3d 879
    , 883 (7th Cir. 2010) (“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 . . . exception for a conference or hearing
    on a question of law.” (internal quotation marks omitted));
    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 citation 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.”);
    see also United States v. Jones, 
    674 F.3d 88
    , 94 (1st Cir.
    2012) (counsel’s meeting with judge to consider a response to
    a jury request for re-instruction fell within the Rule 43(b)(3)
    exception). As recounted by the District Court and counsel
    both immediately after the hearing and two years later during
    the hearing to reconstruct the record, it is clear that the
    preliminary discussion of jury instructions sought only to
    identify agreement or disagreement on the lengthy proposed
    instructions, and thus only dealt with detailed and technical
    legal questions.
    Finally, Appellants have failed to show prejudice in
    support of their claim that the off-the-record proceeding
    21
    deprived them of effective representation.          Ineffective
    assistance of counsel can result when the court “interferes in
    certain ways with the ability of counsel to make independent
    decisions about how to conduct the defense.” Strickland v.
    Washington, 
    466 U.S. 668
    , 686 (1984) (citing cases). But a
    violation of the right to effective representation requires a
    defendant to establish prejudice. See United States v.
    Gonzalez-Lopez, 
    548 U.S. 140
    , 146-47 (2006). In order to
    prove prejudice, the defendant must show that there is a
    “reasonable probability” – “a probability sufficient to
    undermine confidence in the outcome” – “that the result of the
    proceeding would have been different” absent the alleged
    error. Strickland, 
    466 U.S. at 694
    . While Appellants attack
    the reasoning behind the District Court’s decision to hold the
    preliminary jury instruction conference off the record, they
    have not demonstrated any probability that the result of the
    proceeding would have been any different had the conference
    been held on the record. The absence of prejudice is
    particularly apparent here, where the in-chambers conference
    did not involve substantive discussion about the content of
    instructions, but rather involved only identifying the specific
    instructions that were not agreed upon by the parties so that
    substantive discussion as to those instructions could occur in
    the courtroom (and in Appellants’ presence).
    We nonetheless add a word of caution about conducting a
    jury instruction conference of this kind off the record. As
    Appellants have argued, off-the-record proceedings have the
    potential of impeding the ability of the appellate court to do
    its job. This case would have been much more complicated if
    the attorneys and the District Court had articulated conflicting
    recollections of what occurred off the record, or if Appellants
    had claimed that the off-the-record discussion strayed from
    simply “we object” to substantive discussion of grounds of an
    objection that was not later captured on the record, or if
    22
    Appellants had claimed that an objection was overruled in
    chambers but the ruling was not repeated in precisely the
    same manner during the subsequent on-the-record proceeding.
    In such a case, we would be presented with the awkward task
    of resolving a factual dispute about what happened below, a
    difficult exercise for this Court. “There can never be effective
    appellate review if the reviewing court is not able to obtain a
    clear picture of the precise nature of the alleged errors in the
    court below.” Lee v. Habib, 
    424 F.2d 891
    , 897 (D.C. Cir.
    1970). As the Seventh Circuit has recognized in a case
    similar to this one, “[i]t is possible that this procedure could
    injure the defense if it obscured the nature of the objections
    made and reasons for giving the instructions.” United States
    v. Murphy, 
    768 F.2d 1518
    , 1536 (7th Cir. 1985). Fortunately,
    there was no violation of due process or Rule 43 in this case
    because Appellants have identified no prejudice from a
    conference that involved only discussions of undisputed
    questions of law and for which there was no dispute about
    what transpired off-the-record, but the risk that such a dispute
    could arise in the future does give us pause.
    V.
    Cordova, Gutierrez, and Sorto assert that they are entitled
    to a new trial because they were denied their right to two
    attorneys under 
    18 U.S.C. § 3005
    , even after the government
    filed notice that it did not intend to seek the death penalty.
    We find that the District Court’s dismissal of Appellants’
    second appointed attorneys was neither contrary to the statute
    nor an abuse of discretion.
    A.
    Appellants were indicted on June 10, 2008 for, inter alia,
    murder in aid of racketeering in violation of 
    18 U.S.C. § 1959
    (a)(1), which can be punishable by death, 
    id.
     Within
    23
    approximately two months after indictment, each Appellant
    was appointed two attorneys.
    The government filed notice on February 16, 2010, that it
    did not intend to seek the death penalty as to each Appellant.
    At a hearing on March 18, 2010, the District Court announced
    that, following the government’s notice, it had consulted with
    the Federal Public Defender, who had indicated to the court
    that “since it is not going to be a death penalty case, the public
    is not required to pay for two lawyers for each defendant.”
    Status Conf. Tr. 8 (March 18, 2010). As such, the District
    Court determined that Appellants, while welcome to have a
    second lawyer at their own expense, would only be appointed
    one lawyer “at taxpayer expense.” 
    Id.
     Defense counsel
    argued in response that they believed that the status had not
    changed because the government was still seeking life
    sentences, the case was complex, and the second appointed
    lawyer was particularly useful in this case because they had
    one Spanish-speaking lawyer and one non-Spanish-speaking
    lawyer for each Appellant (all of whom are native Spanish-
    speakers). The District Court assured defense counsel that
    translation assistance would be made available as needed, and
    that, with respect to the second attorney, it was possible – but
    not very likely – that he would change his mind.
    On May 12, 2010, Sorto sought reconsideration of the
    District Court’s decision in the form of a motion to appoint a
    second defense attorney pursuant to 
    18 U.S.C. § 3005
    . The
    District Court denied the request on June 24, 2010.
    B.
    We review questions of statutory interpretation de novo.
    United States v. Wishnefsky, 
    7 F.3d 254
    , 256 (D.C. Cir. 1993).
    The proper meaning of 
    18 U.S.C. § 3005
     is a matter of first
    impression in this Circuit. To the extent that Appellants argue
    24
    that, even if not obligated by statute, the District Court should
    have exercised discretion to appoint a second attorney, we
    review that decision for abuse of discretion. See generally
    United States v. Donato, 
    99 F.3d 426
    , 429 (D.C. Cir. 1996).
    “As always, we begin with the text of the statute.”
    United States v. Hite, 
    769 F.3d 1154
    , 1160 (D.C. Cir. 2014)
    (citing United States v. Ron Pair Enters., Inc., 
    489 U.S. 235
    ,
    241 (1989); United States v. Barnes, 
    295 F.3d 1354
    , 1359
    (D.C. Cir. 2002)). “Where the language is clear, that is the
    end of judicial inquiry ‘in all but the most extraordinary
    circumstances.’” United States v. Braxtonbrown-Smith, 
    278 F.3d 1348
    , 1352 (D.C. Cir. 2002) (quoting Estate of Cowart v.
    Nicklos Drilling Co., 
    505 U.S. 469
    , 474 (1992)); see also
    Caminetti v. United States, 
    242 U.S. 470
    , 485 (1917) (“It is
    elementary that the meaning of a statute must, in the first
    instance, be sought in the language in which the act is framed,
    and if that is plain, and if the law is within the constitutional
    authority of the lawmaking body which passed it, the sole
    function of the courts is to enforce it according to its terms.”).
    With these principles in mind, we turn to the statutory
    text at issue here:
    Whoever is indicted for treason or other capital
    crime shall be allowed to make his full defense by
    counsel; and the court before which the defendant is
    to be tried, or a judge thereof, shall promptly, upon
    the defendant’s request, assign 2 such counsel, of
    whom at least 1 shall be learned in the law applicable
    to capital cases, and who shall have free access to the
    accused at all reasonable hours. In assigning counsel
    under this section, the court shall consider the
    recommendation of the Federal Public Defender
    organization, or, if no such organization exists in the
    25
    district, of the Administrative Office of the United
    States Courts. The defendant shall be allowed, in his
    defense to make any proof that he can produce by
    lawful witnesses, and shall have the like process of
    the court to compel his witnesses to appear at his
    trial, as is usually granted to compel witnesses to
    appear on behalf of the prosecution.
    
    18 U.S.C. § 3005
    .
    While a plain reading of the statute supports Appellants’
    position that the trigger to initiate and guarantee the right to a
    second lawyer is the return of an indictment of a “capital
    crime,” see United States v. Boone, 
    245 F.3d 352
    , 359-60 (4th
    Cir. 2001), such a reading does not answer the question in this
    case – that is, whether the statute requires the retention of the
    second lawyer after the government has conclusively
    determined that it will not seek the death penalty. In this
    regard, the statute is silent and therefore ambiguous. See
    Robinson v. Shell Oil Co., 
    519 U.S. 337
    , 340 (1997) (“Our
    first step in interpreting a statute is to determine whether the
    language at issue has a plain and unambiguous meaning with
    regard to the particular dispute in the case.” (emphasis
    added)); see also United States v. Wilson, 
    290 F.3d 347
    , 353
    (D.C. Cir. 2002) (“In determining the ‘plainness or ambiguity
    of statutory language’ we refer to ‘the language itself, the
    specific context in which that language is used, and the
    broader context of the statute as a whole.’” (quoting
    Robinson, 
    519 U.S. at 341
    )).
    To address this ambiguity, we look to the statutory
    purpose. Braxtonbrown-Smith, 
    278 F.3d at 1352
     (“Where the
    language is subject to more than one interpretation and the
    meaning of Congress is not apparent from the language itself,
    the court may be forced to look to the general purpose of
    26
    Congress in enacting the statute and to its legislative history
    for helpful clues.”). We “must avoid an interpretation that
    undermines congressional purpose considered as a whole
    when alternative interpretations consistent with the legislative
    purpose are available.” 
    Id.
     (citing United States v. Am.
    Trucking Ass’ns, Inc., 
    310 U.S. 534
    , 543 (1940)). “[E]ven
    when the plain meaning [does] not produce absurd results but
    merely an unreasonable one ‘plainly at variance with the
    policy of the legislation as a whole’” we must “follow[] that
    purpose, rather than the literal words.” Am. Trucking Ass’ns,
    
    310 U.S. at 543
     (quoting Ozawa v. United States, 
    260 U.S. 178
    , 194 (1922)).
    The language used by Congress suggests that the purpose
    of the statute would be best met by applying the mandate for
    two attorneys only as long as the death penalty is actually
    being pursued. The statute demands that at least one of the
    two appointed counsel “shall be learned in the law applicable
    to capital cases.” 
    18 U.S.C. § 3005
     (emphasis added). The
    reference to “capital cases” is significant, because even
    though Congress did not define the term in this section,
    Congress has repeatedly used “capital case” to mean a
    proceeding in which the death penalty has been imposed or a
    case in which the death penalty is being or could be sought.
    See, e.g., 
    18 U.S.C. § 3510
    (b) (right of victim to attend trial
    even if she may appear as witness at subsequent sentencing
    phase in a death penalty case); 
    28 U.S.C. § 2266
     (special
    habeas corpus procedures for cases where a death sentence
    was imposed); 
    42 U.S.C. § 14163
     (grants to states to improve
    representation in cases where a death sentence may be sought
    or has been imposed). The Supreme Court and lower federal
    courts have historically used the term “capital case” in the
    same manner. See, e.g., Wiggins v. Smith, 
    539 U.S. 510
    , 524
    (2003); United States v. Parker, 
    103 F.2d 857
    , 861-62 (3rd
    Cir. 1939). Congress and the courts have imposed procedural
    27
    safeguards in cases where the death penalty is at issue that are
    distinct from the procedures required in noncapital cases, see,
    e.g., O’Dell v. Netherland, 
    521 U.S. 151
    , 167 (1997); Gilmore
    v. Taylor, 
    508 U.S. 333
    , 342 (1993), because “there is a
    significant constitutional difference between the death penalty
    and lesser punishments,” Beck v. Alabama, 
    447 U.S. 625
    , 637
    (1980).
    Thus, by requiring that at least one attorney be “learned
    in the law applicable to capital cases,” Congress indicated that
    the purpose of the second lawyer is to provide additional
    support and expertise to defendants facing the possibility of
    the death penalty, precisely because defending those cases
    requires a separate and unique base of knowledge, training,
    and experience.      Thus understood, the statute reflects
    Congress’s policy decision that defendants relying on
    appointed counsel need even more help – and more
    specialized help – when their life hangs in the balance. If the
    death penalty is not on the table for a particular case, such
    expertise is no longer absolutely necessary for a fair
    proceeding to result. Cf. United States v. Waggoner, 
    339 F.3d 915
    , 918 (9th Cir. 2003) (reflecting that “the purpose of the
    two-attorney right is to reduce the chance that an innocent
    defendant would be put to death because of inadvertence or
    errors in judgment of his counsel” (internal quotation marks
    omitted)).
    Further support for this conclusion is found in the
    amendment history of the statute. The provision now found at
    
    18 U.S.C. § 3005
     was originally enacted as Section 29 of the
    Crimes Act of April 30, 1790, 
    1 Stat. 118
    -19. The provision
    was included in the Revised Statutes at R.S. § 1034 (1878),
    and then placed in the United States Code at 
    18 U.S.C. § 563
    (1925-26). In 1948, changes were made in phraseology, and
    the statute was moved from 
    18 U.S.C. § 563
     to 18 U.S.C.
    28
    § 3005, see 
    62 Stat. 814
    . Throughout this time, no truly
    substantive changes were made, and no discernable
    explanatory commentary was ever provided. See Boone, 
    245 F.3d at 365
     (Kiser, J., concurring in part and dissenting in
    part) (noting “dearth” of legislative history); In re Sterling-
    Suárez, 
    306 F.3d 1170
    , 1173 & n.2 (1st Cir. 2002) (stating
    that the court can only speculate about changes to the
    provision “[a]bsent legislative history”).
    In 1994, Congress made the first substantive changes to
    the statute as part of the Violent Crime Control and Law
    Enforcement Act of 1994. See Pub. L. No. 103-322, § 60026,
    
    108 Stat. 1796
    , 1982 (1994). It was at this time that Congress
    imposed the requirement in Section 3005 that at least one
    counsel “learned in the law applicable to capital cases” be
    provided to defendants indicted for capital crimes. The
    amendment also opted for the word “promptly” in place of the
    word “immediately” as to the timing of counsel’s
    appointment, and further introduced the requirement that the
    court consider counsel recommendations of the Federal Public
    Defender organizations or the Administrative Office of the
    United States Courts. Concurrent with these changes,
    Congress also enacted the Federal Death Penalty Act of the
    Violent Crime Control and Law Enforcement Act of 1994.
    See Pub. L. No. 103-322, § 60002, 108 Stat. at 1959 (codified
    at 
    18 U.S.C. §§ 3591
     to 3598). Among other things, the
    Federal Death Penalty Act requires that the government serve
    notice on a defendant charged with a death-penalty-eligible
    offense indicating whether the government believes that the
    death penalty is justified in that particular case. 
    18 U.S.C. § 3593
    (a). Such notice must be made “a reasonable time
    before the trial or before acceptance by the court of a plea of
    guilty.” 
    Id.
     The notice must: (1) state “that the government
    believes that the circumstances of the offense are such that, if
    the defendant is convicted, a sentence of death is justified . . .
    29
    and that the government will seek the sentence of death; and
    (2) set[] forth the aggravating factor or factors that the
    government, if the defendant is convicted, proposes to prove
    as justifying a sentence of death.” 
    Id.
     The Department of
    Justice has established comprehensive death penalty
    procedures based on the Federal Death Penalty Act. See U.S.
    DEP’T OF JUSTICE, U.S. ATTORNEYS’ MANUAL,         § 9-10.020
    (April 2014).
    This notice requirement underscores the importance of
    the “prompt” appointment of the second attorney in death-
    penalty-eligible cases – that is, before the government makes
    its determination as to whether to seek a death sentence. Even
    among courts that disagree as to whether the second attorney
    is required after the government announces that it will not
    seek the death penalty, there is agreement that “prompt”
    means promptly after indictment, and not later. This is
    because the goal of the defense in this early stage of the
    proceedings is to convince the Attorney General not to seek
    the death penalty in the first place. See, e.g., In re Sterling
    Suárez, 306 F.3d at 1173 (second attorney learned in the law
    of capital punishment “is likely to be especially useful in
    making and supporting arguments about mitigating and
    aggravating factors, primarily made at the stage when the
    Attorney General is determining whether or not to seek the
    death penalty and (still later) when the jury is determining the
    sentence”); Boone, 
    245 F.3d at 360
     (“[T]he appointment of a
    second lawyer helps the defendant during this preliminary
    process when that investigation into relevant factors and
    presentment of information to the United States Attorney
    occurs. Surely, if the government decides not to seek the
    death penalty, then the penalty phase is won before trial, and a
    second lawyer has proven his worth.”). While the death
    penalty is still on the table, there is a specific role for an
    attorney “learned in the law applicable to capital cases” to
    30
    play in the defense, but once the Attorney General has made a
    determination not to seek the death penalty, the requirement
    of counsel with such specialized expertise no longer serves
    that specific role.
    Simply put, when we consider how federal capital
    prosecutions work in practice – practices that were established
    in 1994 contemporaneously with the amendment requiring at
    least one lawyer to be “learned in the law applicable to capital
    cases” – it is clear that the congressional purpose is best
    served by reading Section 3005 to require two attorneys only
    while the defendant faces the death penalty as a potential
    option. Once the government has decided not to seek the
    death penalty, the trial court retains the discretion to keep or
    dismiss the second attorney, but it is not per se error for the
    court to choose dismissal.
    This conclusion is in accord with the majority of our
    sister circuit courts that have considered the issue. See United
    States v. Douglas, 
    525 F.3d 225
    , 237 (2d Cir. 2008) (“[O]nce
    the government has formally informed the court and the
    defendant of its intention not to seek the death penalty, the
    matter is no longer a capital case within the meaning of
    § 3005 and that section does not require the district court to
    continue the appointment of a second attorney.”); Waggoner,
    
    339 F.3d at 917-18
     (term “capital crime” did not encompass
    the underlying offense when capital punishment could not be
    imposed and thus government’s formal and irrevocable
    renunciation of intent to seek a conviction for capital murder
    justified denial of defendant’s motion for continued
    representation by a second court-appointed lawyer); United
    States v. Casseus, 
    282 F.3d 253
    , 256 (3d Cir. 2002) (any error
    in the failure of the district court to act on the defendants’
    requests to appoint death-penalty qualified counsel was
    harmless where the requests were rendered moot by the
    31
    government’s decision not to seek the death penalty); United
    States v. Grimes, 
    142 F.3d 1342
    , 1347 (11th Cir. 1998)
    (defendant was not entitled to two court-appointed lawyers
    where the government had stated, on the record prior to trial,
    that it would not seek the death penalty; court determined that
    at that point the proceeding was transformed from a capital
    case into a noncapital case); see also In re Sterling-Suárez,
    306 F.3d at 1175 (“[I]n this case there are practical reasons to
    treat the case as capital from indictment forward, for purposes
    of appointing learned counsel, until it becomes clear that the
    death penalty is no longer an option.” (second emphasis
    added)). Further support for our conclusion comes from those
    opinions interpreting Section 3005 in the wake of Furman v.
    Georgia, 
    408 U.S. 238
     (1972). See United States v. Dufur,
    
    648 F.2d 512
    , 514-15 (9th Cir. 1980) (invalidation of death
    penalty provision in 
    18 U.S.C. § 1111
     eliminated defendant’s
    right to two attorneys in prosecution for “capital crimes”);
    United States v. Shepherd, 
    576 F.2d 719
    , 727-29 (7th Cir.
    1978) (holding that because “there is no possibility that the
    death penalty can be imposed,” this provision granting
    defendants a right to two counsel in capital cases was
    inapplicable); United States v. Weddell, 
    567 F.2d 767
    , 770-71
    (8th Cir. 1977) (defendant accused of murder was not entitled
    to appointment of second attorney where Furman precluded
    imposition of death penalty and case thus lost its capital
    nature); but see United States v. Watson, 
    496 F.2d 1125
    ,
    1127-29 (4th Cir. 1973) (offense of first-degree murder still a
    “capital crime,” and thus defendant charged with such offense
    had absolute statutory right to two attorneys on request,
    notwithstanding that under Furman the death penalty could
    not constitutionally be imposed).
    The only circuit that has come to a different conclusion is
    the Fourth Circuit, see Boone, 
    245 F.3d at 359-60
    ; Watson,
    
    496 F.2d at 1129
    , but for the reasons stated above, we
    32
    respectfully disagree with its conclusion that Section 3005
    unambiguously mandates that the second defense attorney
    must be retained after the prosecution irrevocably removes the
    possibility of a death sentence. For various reasons, such as
    the complexity of the issues or the amount of necessary
    investigation, it may be prudent for the District Court to allow
    the second lawyer to continue to assist with the
    representation, but the statute does not require it. Other than
    arguing that the District Court was required by statute to
    retain two attorneys for each Appellant through trial – a
    contention we reject – Appellants have not identified any
    basis to find an abuse of discretion by the District Court in
    dismissing the second appointed attorneys, and we find none.
    VI.
    For the foregoing reasons, we affirm the judgment of the
    District Court with respect to the four claims addressed
    herein.
    So ordered.