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An attorney’s seven-minute absence from the trial did not violate the client’s Sixth Amendment.


A three-judge panel was reversed in U.S. v Roy by the En Banc court and the defendant’s conviction in federal court in Miami was reinstated for reasons explained below.   Here is what happened at the trial.

Roy was charged in a five-count indictment with sext crimes related to minor girls. Count one charged him with attempting to enticed a child base on his efforts to arrange a sexual encounter with someone he believed to be a 13-year-old girls in response to an interne ad posted by law enforcement. The other counts involved child pornography and charged him with knowingly possessing visual depictions of child pornography in violation of the federal statute. Each of those counts involved images that were stored in different electronic devices he kept. The charge required that the government prove that under each of the counts he knowingly possessed one or more images of child pornography on the electronic devices.

The issue here, which was the reason for the panel’s decision to overturn the conviction, involved Roy’s federal trial lawyer’s absence during a small a portion of the testimony of the trial.

The En Banc Court concluded that it was a Sixth Amendment constitutional violation for the trial judge to start the trial without the attorney present, but that the error was harmless beyond a reasonable doubt because of the overwhelming evidence offered while counsel was present that went to and proved the charges in counts 2 through 5, which were the only counts relevant to the testimony given during counsel’s absence. The error in the trial took place when his counsel returned a few minutes late from a lunch break on the third day of the six-day trial.

Before the lunch break and in counsel’s presence there was additional testimony about count one, but much of the testimony that third morning went to counts 2-5 and concerned Roy’s sexual relationship with L.B., the girl in the pornographic images and videos that Roy himself had produced and stored on his electronic devices. In the morning, the government witness testified without objection about her age to establish she was under the age of 18. The principal from the high school L.B. attended identified her in school yearbooks. The third witness called before the lunch break was a deputy sheriff, a computer forensics expert to offer email between the defendant and the girl, L.B.

During the absence of his counsel the evidence showed he missed seven minutes of the trial, which the appellate court calculated to be less than one-half of one percent of the total trial time. He missed only a small part of the testimony of the 12th of 13 government witnesses. The testimony involved 18 answers involving 6 of the images of a female subject, showing the female bound to a table by her fee with rope and an orange cloth secured around her neck with duct tape. During the time counsel was absent no exhibits were admitted into evidence and he did not identify L.B. as the female in the photos.

Furthermore, the little testimony that counsel had missed was repeated with even more detail by the same witness after counsel returned to the courtroom. Before the defense counsel’s absence the government had called 10 witnesses whose testimony focused on count one and showed that Roy, a middle school teacher set up a sexual encounter that he thought it would involve a 13-year old girls and her mother. He drove to pre-arranged location to meet the mother and child so that he could have sex with the child.

Roy’s federal criminal lawyer was in the Miami courtroom for the entirety of the first two days of trial and for the presentation of all of the testimony and evidence about the crime charged in Count one.



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