## Facts

- Federal defendants, including Gagnon, were tried by jury for participation in a cocaine distribution conspiracy.
- A juror reported concern that Gagnon was sketching jurors during trial; the bailiff relayed this to the judge in the presence of defendants and counsel, outside the jury’s presence.
- Defense counsel acknowledged Gagnon had been sketching; the judge ordered the sketching to stop and, at counsel’s suggestion, planned to speak with the juror in chambers.
- The judge held an in camera meeting with the juror attended by Gagnon’s counsel (but not the defendants personally), explained that Gagnon was an artist, stated the sketches were confiscated, and confirmed the sketching would not continue.
- The juror, questioned by the judge and defense counsel, stated he could remain impartial and continue serving.
- A transcript of the in camera proceeding was made available to the parties; no defendant requested to attend, objected, moved to strike the juror, or raised the issue in post-trial motions.
- The jury convicted the defendants; the court of appeals reversed based on the defendants’ absence from the in camera juror discussion.

## Issues

1. Whether due process required the defendants’ personal presence at an in camera conference between the judge, a juror, and defense counsel addressing a juror’s concern about the defendant’s conduct.
2. Whether Federal Rule of Criminal Procedure 43 required reversal for the defendants’ absence from that conference when they did not request to attend or object at the time.

## Decision

- The Supreme Court reversed the court of appeals and reinstated the convictions.
- The Court held there was no due process violation because a defendant has no constitutional right to be present at every judge–juror interaction; presence is required only when absence would thwart a fair and just hearing.
- The Court concluded the conference concerned a minor, non-evidentiary matter; defense counsel attended and participated; the juror affirmed impartiality; and the record showed no prejudice.
- Assuming without deciding that the conference was a “stage of the trial” under Rule 43, the Court held any Rule 43 right was waived because defendants and counsel knew of the conference yet made no effort to attend or object, and the claim could not be raised for the first time on appeal.

## Legal Principles

- A defendant’s due process right to be present exists only when presence bears a reasonably substantial relation to the opportunity to defend and when absence would thwart a fair and just hearing, assessed on the whole record.
- There is no constitutional requirement that defendants be present at all judge–juror communications, particularly where the matter is limited, non-evidentiary, and counsel is present.
- Rule 43 presence rights must be timely asserted; if a defendant is aware of an in camera proceeding and neither requests to attend nor objects, the right may be treated as waived.
- Appellate reversal is not required for a minor procedural event lacking demonstrated prejudice where timely objection could have allowed the trial court to address the concern.

## Conclusion

The Court held that an in-chambers inquiry to address a juror’s concern did not violate due process when counsel participated and the incident did not affect fundamental fairness, and that any Rule 43 claim based on the defendants’ absence was waived by the failure to object or request حضور at the time.


United States v. Gagnon, 470 U.S. 522 (1985)