FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
RHODE ISLAND [Hon. William E. Smith, U.S. District Judge]
Michael C. Bourbeau, with whom Bourbeau & Bonilla, LLP
was on brief, for appellant.
C. Lockhart, Assistant United States Attorney, with whom
Peter F. Neronha, United States Attorney, was on brief, for
Torruella, Kayatta, and Barron, Circuit Judges.
BARRON, Circuit Judge.
Karmue appeals his convictions on three federal counts:
conspiracy to commit arson, wire fraud, and mail fraud. He
also challenges his sentence. The convictions and sentence
relate to Karmue's alleged participation in a scheme to
burn down a tenement house that Karmue owned so that he could
collect the insurance proceeds. We affirm.
27, 2014, following the fire at the tenement house, Karmue
was indicted for conspiracy to commit arson, 18 U.S.C. §
844(n); arson, 18 U.S.C. § 844(i) and 18 U.S.C. §
2; wire fraud, 18 U.S.C. § 1343; mail fraud, 18 U.S.C.
§ 1341; and theft of government funds, 18 U.S.C. §
641. On April 7, 2015, Karmue pled guilty to theft of
government funds. He then proceeded to trial on the other
counts. After a jury trial, he was convicted on all counts
except arson, 18 U.S.C. § 844(i) and 18 U.S.C. § 2.
Karmue now challenges his conviction on three different
grounds. We consider each in turn.
first seeks the reversal of his convictions on the ground
that the District Court erred by conducting a portion of what
is known as a Daubert hearing in his absence.
See Daubert v. Merrell Dow Pharms., Inc., 509 U.S.
579 (1993). The hearing was held to determine whether to
permit an arson investigator, Sean Reddy, to testify at trial
not only as a fact witness as the officer who investigated
the fire, but also as an expert for the government regarding
the cause of the fire.
attorney at the time, George West, was present for the first
day of the Daubert hearing, and so, too, was Karmue.
But Karmue did not attend the second day of the
Daubert hearing, and West objected that, given
Karmue's absence, the holding of the hearing would
violate Karmue's Sixth Amendment rights. Nonetheless, the
District Court proceeded with the second day of the hearing.
On appeal, Karmue reasserts his Sixth Amendment challenge,
and also contends that the decision to proceed with the
Daubert hearing in his absence violated both his Due
Process rights and Federal Rule of Criminal Procedure
raised the Sixth Amendment challenge below, and so our review
is de novo. United States v.
Liriano, 761 F.3d 131, 136 (1st Cir. 2014). We have
previously stated that the Confrontation Clause "has
historically applied to testimony elicited at, and evidence
produced for, trial, " and we have noted that the
"confrontation right has never been extended beyond the
context of a trial." United States v.
Mitchell-Hunter, 663 F.3d 45, 51 (1st Cir. 2011).
But, we have not completely foreclosed the possibility that
the Confrontation Clause might apply to a pretrial hearing of
some sort, see id. at 53, and we also have not
previously considered the specific issue of whether a
pretrial Daubert hearing might qualify as a hearing
to which the right guaranteed by the Confrontation Clause
case, however, Karmue's challenge fails even if we were
to assume that the Confrontation Clause does apply, as any
error was harmless beyond a reasonable doubt. See United
States v. Sepúlveda-Contreras, 466 F.3d 166, 171
(1st Cir. 2006). The record fully supports the
Daubert ruling that the District Court made. Karmue
neither argues that the District Court's ruling was
erroneous nor explains how his presence at the second day of
the hearing could conceivably have revealed any error. In
addition, at trial, Karmue's counsel objected to Reddy
providing expert testimony only as to the portion of
Reddy's testimony that concerned his opinion that the
fire was deliberately set. Yet there was overwhelming
independent evidence that the fire was deliberately
See United States v. Godfrey, 787
F.3d 72, 77-78 (1st Cir. 2015) (holding that overwhelming
evidence of the fact for which the challenged testimony was
entered suffices to show that an error was harmless beyond a
separately contends that he had a Due Process right to be
present at the Daubert hearing and that this right
was infringed. Specifically, he contends that there was a Due
Process violation because his presence at the
Daubert hearing would have "ha[d] a relation,
reasonably substantial, to the fulness of his opportunity to
defend against the charge." Kentucky
v. Stincer, 482 U.S. 730, 745 (1987).
did not raise this issue below, however, and so our review is
only for plain error. Karmue thus must show, among other
things, both that any error was clear or obvious and that it
affected his substantial rights. United States
v. Savarese, 686 F.3d 1, 12 (1st Cir.
2012). He has done neither.
assuming that this pretrial hearing is the type to which the
Due Process right to be present described in Stincer
applies, the right is infringed only if the defendant's
presence would have "contribute[d] to the fairness of
the procedure." Stincer, 482 U.S. at 745. It is
not clear or obvious, however, what the benefit of
Karmue's presence at the hearing would have been. While
Karmue does contend in his briefing to us that he would have
been able to assist counsel at the Daubert hearing,
he does not explain what assistance he could have rendered in
a hearing about Reddy's credentials as an expert. Nor
does Karmue make any concrete argument about how his absence
on that second day of the Daubert hearing impeded
his ability to effectively assist his lawyer in preparing for
Reddy's cross-examination at trial.
Karmue's Due Process challenge fails on plain error
review because -- even assuming a clear or obvious error
--Karmue cannot demonstrate that the District Court's
decision to proceed with the hearing in Karmue's absence
"affected [his] substantial rights, which in the
ordinary case means it affected the outcome of the district
court proceedings." United Statesv.Fernández-Hernández, 652 F.3d 56, 64
(1st Cir. 2011). As we have already explained, there was
overwhelming independent evidence that the fire was
deliberately set, and Karmue's "conclusory
allegations do not establish ...