Submitted June 13, 2014.
Appeal from United States District Court for the District of Minnesota - Minneapolis.
For Jon Henry Sweeney, Petitioner - Appellant: Katherine M. Menendez, Assistant Federal Public Defender, Federal Public Defender's Office, Minneapolis, MN.
Jon Henry Sweeney, Petitioner - Appellant, Pro se, Duluth, MN.
For United States of America, Respondent - Appellee: Michelle E. Jones, Assistant U.S. Attorney, U.S. Attorney's Office, District of Minnesota, Minneapolis, MN.
Before LOKEN, BRIGHT, and GRUENDER, Circuit Judges.
BRIGHT, Circuit Judge.
Jon Sweeney (Sweeney) in this post-conviction proceeding seeks relief from his underlying criminal conviction relating to the unauthorized interception of cable service and illegal currency structuring for which he is serving 70 months (5 years, 10 months) imprisonment. Sweeney argues that his Sixth Amendment right to counsel was violated when his attorney left the courtroom, with the permission of the district court, to go to the bathroom during the government's direct examination of a co-conspirator. The district court recognized that the departure violated Sweeney's Sixth Amendment right to counsel but ruled that the violation was harmless error and denied Sweeney's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
The district court granted a certificate of appealability for Sweeney on the following question: " Is the actual absence of counsel from trial for a brief period of time during the direct testimony of a government witness subject to harmless-error analysis?" Sweeney appeals on this narrow issue and argues that counsel's absence amounted to a structural defect requiring a presumption of prejudice that precludes any need for harmless-error analysis. The Government contends that the absence amounted to a trial error subject to harmless-error analysis and that the record shows Sweeney was not prejudiced by his attorney's absence.
Having jurisdiction under 28 U.S.C. § 1291, we affirm.
The details of the underlying criminal case are discussed at length in United States v. Sweeney, 611 F.3d 459 (8th Cir. 2010). In short, a federal grand ...