United States v. Edward Knight

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-10197
Plaintiff-Appellee, D.C. No.
3:19-cr-00038-
v. MMD-CLB-1
EDWARD KNIGHT,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, Chief District Judge, Presiding
Argued and Submitted November 16, 2022
San Francisco, California
Filed January 4, 2023
Before: Sidney R. Thomas and Mark J. Bennett, Circuit
Judges, and Robert S. Lasnik, * District Judge.
Opinion by Judge Lasnik
*
The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
2 UNITED STATES V. KNIGHT
SUMMARY **
Criminal Law
The panel affirmed Edward Knight’s robbery
convictions in a case in which a juror participated remotely
in the first two days of trial.
Knight asserted that permitting a juror to participate
remotely via Zoom violated his Fifth and Sixth Amendment
rights, that the error was structural and could not be waived,
and that he is therefore entitled to a new trial without having
to show prejudice.
The panel assumed without deciding that criminal
defendants have a constitutional right to the in-person
participation of jurors during their trial. Knight asserted that
the alleged error is akin to depriving him of his right to a jury
trial, depriving him of his right to a fair and impartial jury,
depriving him of a representative jury, and/or depriving him
of his right to confront witnesses. The panel wrote that none
of these comparisons is apt, as there is no indication in the
record—and no reason to suppose—that the remote
participation of a duly empaneled juror interfered with the
functioning of the jury, somehow made that juror partial or
unrepresentative, or impacted the procedures used for the
presentation of witnesses. The panel wrote that allowing
remote juror participation does not impact the entire
framework of the trial in ways that cannot be accurately
measured on review. Rather, it merely creates room for the
types of problems and errors identified by Knight, such as
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. KNIGHT 3
difficulties in seeing exhibits, hearing testimony, and/or
viewing witnesses. But none of those errors will necessarily
arise simply because a juror is participating remotely. The
panel wrote that there is no case law or record evidence to
support a presumption that the remote participation of a juror
will always render a trial unfair and the judgment unreliable;
the alleged error simply does not fall within the limited class
of structural errors that cannot be waived and which require
automatic reversal.
Noting that non-structural errors can be waived, the
panel wrote that the procedure the district court used to
confirm that Knight’s waiver was knowing, voluntary, and
intelligent was sufficient. Knight conceded that he
consented to remote juror participation, but argued that the
district court did not obtain a valid waiver because it did not
inform him of the constitutional nature and implications of
waiver. The panel wrote that this argument fails in light of
Knight’s knowing, intentional, and voluntary abandonment
of the claimed right.
The panel addressed other issues in a concurrently filed
memorandum disposition.
COUNSEL
Wendi L. Overmyer (argued) and Aarin E. Kevorkian,
Assistant Federal Public Defenders; Rene L. Valladares,
Federal Public Defender; Federal Public Defender’s Office,
Las Vegas, Nevada; for Defendant-Appellant.
William R. Reed (argued), Peter H. Walkingshaw, and
Robert L. Ellman, Assistant United States Attorneys; Jason
M. Frierson, United States Attorney; Elizabeth O. White,
4 UNITED STATES V. KNIGHT
Appellate Chief; Office of the United States Attorney, Reno,
Nevada; Daniel D. Hollingsworth, Attorney, Office of the
United States Attorney, Las Vegas, Nevada; for Plaintiff-
Appellee.
OPINION
LASNIK, District Judge:
In July 2019, two stores were robbed in Sparks, Nevada.
After a six-day trial, Knight was convicted of the robberies
and sentenced to 169 months’ imprisonment followed by
five years of supervised release. We consider in this opinion
Knight’s argument that the convictions must be vacated
because the district court structurally erred by permitting a
juror to participate remotely in the first two days of trial. The
other issues Knight raises on appeal are addressed in a
separate Memorandum Disposition filed concurrently with
this Opinion.
I.
Knight’s criminal trial began on March 8, 2021, with
jury selection. The jury was empaneled that day. The next
morning, Juror 10 notified the court that his wife was ill.
Given the possibility that Juror 10 could be infected with the
COVID-19 virus, the district court conferred with the parties
to determine how best to proceed, proposing three options:
One is to allow [Juror 10] to participate in the
trial by Zoom. He could listen to the
testimony, view the evidence by Zoom, and
if by the time the jury begins deliberation he
is—his wife is clear, then he can join the
UNITED STATES V. KNIGHT 5
deliberation; if not, then I would dismiss him
at the time if he could not join the
deliberation. That way, I still have two
alternates for awhile [sic].
The second option is to dismiss him and have
one alternate for the trial, really, before
opening even starts.
The third option is to delay trial until [Juror
10] can – is, essentially, permitted to return
to normal activities.
The government preferred that Juror 10 be excused from
service, citing potential technological problems with remote
service. Knight’s counsel recognized that sharing exhibits
with a remote juror would require a collaborative solution
and that the juror should be admonished to not access the
internet, not use his phone, and devote his full attention to
the proceedings, but preferred the first option over dismissal
or delay. The district court then addressed Knight directly:
THE COURT: . . . Mr. Knight, if—you can
insist that all the jurors participate at the trial
in person. But if you agree to have [Juror 10]
watch the trial via Zoom—and of course he
would have to participate with deliberations
in person, but, for now, he could watch the
trial via Zoom. If you consent to it, I will take
that approach.
Do you agree?
6 UNITED STATES V. KNIGHT
DEFENDANT KNIGHT: Yes, ma’am. I
agree.
THE COURT: Have you had a chance to talk
to your attorney about that option before
consenting?
DEFENDANT KNIGHT: Yes, ma’am.
THE COURT: I want to make sure you
understand that you have the option of
electing not to proceed with that option. If
you object to proceeding with that option, I
will not proceed with that option.
Do you understand that?
DEFENDANT KNIGHT: Yes, ma’am.
THE COURT: Knowing that, is it still your
decision to consent to have [Juror 10]
participate and view the trial via Zoom?
DEFENDANT KNIGHT: Yes, ma’am.
THE COURT: All right.
I find that Mr. Knight understands that he has
the right to insist that [Juror 10] participate in
the trial in person, and he’s waived that right
and consents to have [Juror 10] view the trial
via Zoom for now.
UNITED STATES V. KNIGHT 7
At the end of the day, the district court noted for the record
that she and her clerk could see Juror 10 on their computer
screens and that the clerk and Juror 10 had established a
procedure for him to notify the clerk if he were not able to
hear or see what was going on in the courtroom.
By that point, the government had identified “five
serious concerns” with proceeding with a remote juror and
requested that Juror 10 be excused and replaced with one of
the alternates. The government argued that if its objections
were overruled, the district court should again question
Knight and his counsel to confirm their consent to
proceeding with a remote juror and to obtain a waiver of any
right to challenge the remote juror procedure on appeal.
Defense counsel reiterated that Mr. Knight fully consented
to the juror’s remote participation, but he declined to waive
his client’s right to attempt to vitiate that consent on appeal
or to challenge a defect that might arise out of the remote
participation. The district court recognized that there might
be challenges raised on appeal, such as an assertion that the
waiver was not knowing and voluntary or an argument that
the asserted right to an in-person jury cannot be waived, but
wanted Knight’s agreement that “he’s not going to challenge
his own consent to have [Juror 10] participate by video.”
Defense counsel offered to “make a full record that [Knight]
absolutely was advised appropriately, and that he fully
consents, and that his consent . . . is knowing, voluntary, and
intelligent, a hundred percent.” The district court again
addressed Knight directly:
THE COURT: . . . Mr. Knight, let me ask you
again. You’ve heard some exchange now. I
want to make sure that you know you have a
right to insist that [Juror 10] participate at this
trial in person.
8 UNITED STATES V. KNIGHT
Do you understand that?
DEFENDANT KNIGHT: Yeah. I understand
what’s going on.
THE COURT: And this morning you’ve had
a chance to talk to your attorney about
waiving that right and allowing [Juror 10] to
participate by video, is that right?
DEFENDANT KNIGHT: Yes, ma’am.
THE COURT: Having conferred with your
attorney, is it your decision to consent to have
[Juror 10] . . . participate and view this trial
by video?
DEFENDANT KNIGHT: Yes, ma’am.
THE COURT: All right.
I still find that Mr. Knight understands his
right, and that his consent is knowing and
voluntary and I will accept his consent.
With the consent of Knight and his counsel, Juror 10
participated remotely via Zoom for two days. Juror 10 was
able to return to the courtroom on March 11th.
II.
On appeal, Knight asserts that permitting a juror to
participate remotely in his criminal trial violated his Fifth
and Sixth Amendment rights, that the error was structural
and could not be waived, and that he is therefore entitled to
UNITED STATES V. KNIGHT 9
a new trial without having to show prejudice. We will
assume without deciding that criminal defendants have a
constitutional right to the in-person participation of jurors
during their trial. Nevertheless, Knight has not shown that a
violation of that right constitutes reversible error in the
absence of resulting prejudice.
Structural errors “infect the entire trial process,” Brecht
v. Abrahamson, 507 U.S. 619, 630 (1993), and “necessarily
render a trial fundamentally unfair,” Rose v. Clark, 478 U.S.
570, 577 (1986)). They are also “rare.” Washington v.
Recuenco, 548 U.S. 212, 218 (2006). The Supreme Court has
“repeatedly recognized that the commission of a
constitutional error at trial alone does not entitle a defendant
to automatic reversal.” Id. Indeed, “if the defendant had
counsel and was tried by an impartial adjudicator, there is a
strong presumption that any other [constitutional] errors that
may have occurred” are not structural and are subject to the
harmless-error analysis of Fed. R. Cr. P. 52(a). Neder v.
United States, 527 U.S. 1, 8 (1999) (quoting Rose, 478 U.S.
at 579). The limited circumstances in which structural errors
have been found include a biased trial judge, Tumey v. Ohio,
273 U.S. 510 (1927), denial of counsel, Gideon v.
Wainwright, 372 U.S. 335 (1963), denial of self-
representation, McKaskle v. Wiggins, 465 U.S. 168 (1984),
denial of public trial, Waller v. Georgia, 467 U.S. 39 (1984),
race discrimination in the selection of the grand jury,
Vasquez v. Hillery, 474 U.S. 254 (1986), directing entry of
judgment in favor of the prosecution, Rose, 478 U.S. at 578,
a defective reasonable-doubt instruction, Sullivan v.
Louisiana, 508 U.S. 275 (1993), and failing to give oral
instructions to the jury, United States v. Becerra, 939 F.3d
995 (9th Cir. 2019). Defining features of a structural error
include that (1) it deprives defendants of the “basic
10 UNITED STATES V. KNIGHT
protections without which a criminal trial cannot reliably
serve its function as a vehicle for determination of guilt or
innocence,” Neder, 527 U.S. at 8-9 (internal quotation marks
and citation omitted), and (2) it “def[ies] analysis by
harmless error standards” because (a) the right at issue
protects some interest other than avoiding erroneous
convictions, (b) the effects of the error are difficult to
identify or measure, and/or (c) the error is of a nature that
“always results in fundamental unfairness,” Weaver v.
Massachusetts, 137 S. Ct. 1899, 1907–08 (2017) (internal
quotation marks and citation omitted).
Knight asserts that the error alleged here, namely
allowing a juror to participate in a criminal trial via Zoom,
is akin to depriving him of his right to a jury trial, depriving
him of his right to a fair and impartial jury, depriving him of
a representative jury, and/or depriving him of his right to
confront witnesses. None of these comparisons is apt. There
is no indication in the record—and no reason to suppose—
that the remote participation of a duly empaneled juror
interfered with the functioning of the jury, somehow made
that juror partial or unrepresentative, or impacted the
procedures used for the presentation of witnesses. Unlike a
deprivation of counsel, a biased adjudicator, or the failure to
ensure that the jurors are instructed on the law, allowing
remote juror participation does not impact the entire
framework of the trial in ways that cannot be accurately
measured on review. Rather, it merely creates room for the
types of problems and errors identified by Knight, such as
difficulties in seeing exhibits, hearing testimony, and/or
viewing witnesses. But none of those errors will necessarily
arise simply because a juror is participating remotely. Knight
asks us to presume that the remote participation of a juror
will always render a trial unfair and the judgment unreliable,
UNITED STATES V. KNIGHT 11
but there is no case law or record evidence to support such a
presumption. 1 The alleged error simply does not fall within
the limited class of structural errors that cannot be waived
and which require automatic reversal.
Non-structural errors can be waived. “‘No procedural
principle is more familiar to [the Supreme Court] than that a
constitutional right,’ or a right of any other sort, ‘may be
forfeited in criminal as well as civil cases by the failure to
make timely assertion of the right before a tribunal having
jurisdiction to determine it.’” United States v. Olano, 507
U.S. 725, 731 (1993) (quoting Yakus v. United States, 321
U.S. 414, 444 (1944)). The government argues that Knight
knowingly, intentionally, and voluntarily waived any right
he may have had to the in-person participation of Juror 10.
We review the adequacy of a criminal defendant’s waiver of
constitutional rights de novo. United States v. Laney, 881
F.3d 1100, 1106 (9th Cir. 2018).
Waiver is the “intentional relinquishment or
abandonment of a known right.” Johnson v. Zerbst, 304 U.S.
458, 464 (1938). Where a waiver would deprive the
defendant of a constitutional right, courts generally require
that it be a voluntary, knowing, and intelligent choice among
alternative courses of action, made without coercion and
with sufficient awareness of the relevant circumstances and
likely consequences that would arise from the waiver. See,
e.g., Brady v. United States, 397 U.S. 742, 748–49 (1970);
1
In fact, jurors, attorneys, and trial judges who have participated in
remote trials largely commend the process, noting advantages in
observing witnesses and assessing body language and demeanor. Jud.
Council of the Ninth Cir., 2020 Annual Report, U.S. Cts. for the Ninth
Cir. 27, https://cdn.ca9.uscourts.gov/ datastore/judicial-
council/publications/AnnualReport2020.pdf.
12 UNITED STATES V. KNIGHT
Parke v. Raley, 506 U.S. 20, 29 (1992). “Whether a
particular right is waivable; whether the defendant must
participate personally in the waiver; whether certain
procedures are required for waiver; and whether the
defendant’s choice must be particularly informed or
voluntary, all depend on the right at stake.” Olano, 507 U.S.
at 733.
The procedure that the district court used in this case to
confirm that the waiver was knowing, voluntary, and
intelligent was sufficient. Knight was specifically informed
on several occasions that he had the right to insist that all
jurors be present in the courtroom and, when questioned by
the district court, he indicated that he understood that he had
that right. Knight was present when the various options for
dealing with Juror 10’s situation were discussed, including
the juror’s dismissal and replacement with an alternate. He
was present as counsel identified all the things that could go
wrong with remote participation. And he affirmatively
indicated that he understood what was going on. Having had
the opportunity to confer with counsel, Knight chose to
waive the right to have all jurors participate in person and
agreed to Juror 10’s remote participation.
The district court found that the waiver was knowing and
voluntary. Knight concedes that he consented to remote juror
participation, but argues that the district court did not obtain
a valid waiver because it did not inform him of the
constitutional nature and implications of waiver. The
argument is unavailing. It fails in light of Knight’s knowing,
intentional, and voluntary abandonment of the claimed right.
The district court repeatedly advised Knight that he could
insist on in-person juror participation at any time, ensured
that Knight spoke with his counsel about the waiver, and
fully considered concerns raised by both parties. There can
UNITED STATES V. KNIGHT 13
be no error if the rule on which the defendant relies has been
effectively waived. Olano, 507 U.S. at 732–33 (“The first
limitation on appellate authority under Rule 52(b) is that
there indeed be an ‘error.’ Deviation from a legal rule is
‘error’ unless the rule has been waived. For example, a
defendant who knowingly and voluntarily pleads guilty in
conformity with the requirements of Rule 11 cannot have his
conviction vacated by court of appeals on the grounds that
he ought to have had a trial. Because the right to trial is
waivable, and because the defendant who enters a guilty plea
waives that right, his conviction without a trial is not
‘error.’”). The district court did not err when proceeding
with a remote juror given Knight’s knowing, voluntary, and
intelligent waiver of any right he may have had to the juror’s
in-person participation.
AFFIRMED.