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Gagnon applies to the voir dire process.

Mr. Johnson was convicted after a jury trial on charges of cocaine distribution, possession of a firearm by a convicted felon and carrying a firearm during in relation to a drug trafficking offense. In United States v. Johnson, 11-2170 (E.D.PA 04/19/12), the Court of Appeals affirmed the judgement and 120 months sentence of imprisonment imposed by the District Court.

On appeal, Johnson made four arguments. First, he argued that during the voir dire process the district violated his right to be present at all stages of trial under the United States Constitution as well as Federal Rules of Criminal Procedure 43. Specifically, his complaint rested with the district court’s questioning of prospective jurors at sidebar outside his presence. The Court of Appeals noted that during jury selection, neither Johnson nor his counsel objected to this practice. As a result, Johnson’s lawyer was deemed to have consented to this practice and therefore waived Mr. Johnson’s right to challenge it on appeal. Likewise, because no objection was made, the challenge under Rule 43 was also deemed to be waived. The Court further held that no warning of this right need be given. In so finding, the Court of Appeals joined several other Circuits in applying United States v. Gagnon, 470 U.S. 522 (1985). Hence, the failure to invoke one’s right to be present at a conference between an judge and juror is deemed to be a waiver of that right.

Second, Johnson argued that trial court abused its discretion by denying the disclosure of the confidential informant’s identity. The Court of Appeals disagreed finding that Mr. Johnson had not met his burden set forth under Roviaro v. United States, 353 U.S. 53 (1957).


Third, Johnson argued that the evidence was insufficient to convict him of possession of a firearm in furtherance of a drug-trafficking offense. The Court of Appeals held that his illegal possession of a loaded firearm in his waistband was selling drugs was sufficient evidence.

Finally, Johnson argued that lower court erred by imposing an upward variance to 120 months from 97 to 106 months. Again, the Court of Appeals, disagreed, finding no abuse of discretion in an upward variance where the sentencing court concluded that previously imposed shorter sentences had not proven to be enough of a deterrent.

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