UNITED STATES of America, Plaintiff-Appellee, v. Edwin EDWARDS; Stephen Edwards; Cecil Brown; Andrew Martin; Bobby Johnson, Defendants-Appellants, 303 F.3d 606

BENAVIDES, Circuit Judge: After a long, complex trial, the former governor of Louisiana, his son, and several of his associates were convicted for their roles in various schemes to make money from Louisiana’s riverboat gambling license process by exploiting the former governor’s apparent ability to influence that process. The defendants appeal their convictions for, inter alia, extortion, mail and wire fraud, money laundering, making false statements, and RICO violations. Finding no reversible error, we affirm. I. Edwin Edwards was a prominent figure in Louisiana politics for more than two decades.

After serving in the Navy during World War II and later obtaining his law degree, he spent several years in private practice and local politics. He served as a member of the United States House of Representatives from 1965 until 1972, when he was elected to the first of two consecutive terms as Governor. In 1980, he left the governor’s office and served briefly on' the Louisiana Supreme Court. He then returned to private practice until 1984, when he was elected to a third term as Governor.

After two federal corruption trials in 1985 and 1986, resulting in a hung jury and an acquittal, respectively, he lost his bid for re-election in 1987. In 1992, however, the voters sent him back to the Governor’s office for an unprecedented fourth term. When that term ended in 1996, he once again returned to private practice. In private practice, he worked closely with his son, Stephen Edwards, who is also a lawyer. Stephen and Edwin Edwards were convicted with several of the Governor’s associates.

Cecil Brown (“Brown”), an auctioneer and businessman, held the title of “Special Assistant to'the Governor.” Andrew Martin (“Martin”) was a businessman who worked in the commercial fishing and marine towing industries, along with serving as a public official on state commissions. From 1992 to 1995, Martin held the title of Executive Assistant to the Governor. Bobby Johnson (“Johnson”), a self-made cement magnate, was a close friend of Edwin Edwards.

In addition to these convicted defendants, two of Edwin Edwards’ associates were acquitted: Gregory Tarver (“Tarver”), a Louisiana State Senator and Ecotry Fuller (“Fuller”), a former member of the Louisiana Gaming Control Board (“the Board”). Originally, these seven men were indicted en masse. The government alleged that each was a member of a conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (“RICO”). The indictment broke the conspiracy into five separate schemes.

Pursuant to each scheme, the conspirators were alleged to have extorted money from various individuals who sought approval of riverboat casino projects. The conspirators promised to help these individuals obtain licenses in exchange for money and threatened to make obtaining the licenses impossible if they did not pay. It was further alleged that the conspirators attempted to launder the money obtained through the schemes. Brown was the major player in the LRGC/NORC Scheme.

Brown, ostensibly representing Edwin Edwards (who was acquitted of all acts relating to this scheme), defrauded and extorted the Louisiana Riverboat Gaming Corporation (“LRGC”) and the New Orleans Riverboat Corporation (“NORC”) (controlled by the same principals) by promising each a riverboat license if they paid exorbitant consulting fees despite the fact that he knew that LRGC and NORC would not receive licenses. Brown spoke with LRGC/NORC principals between the Fall of 1991 and the Summer of 1993, when the key licensing vote occurred. During that period, Brown was paid approximately $350,000.

Brown and Johnson carried out the Jazz Scheme. Claiming to represent Edwin Edwards, they extorted Jazz Enterprises, Inc. (“Jazz”), one of three applicants for two available Baton Rouge riverboat licenses. Brown and Johnson spoke with the Jazz principals between February 1994 and August 1994. Jazz did not agree to the extortion demand, but it received a license anyway in July 1994. Edwin Edwards was ultimately acquitted on all counts relating to this scheme. Stephen Edwards, his friend Richard Shetler (“Shetler”) and Edwin Edwards were the major players in the Players Scheme.

Stephen Edwards, representing his father, extorted Players Casino (“Players”), demanding that it retain him as a lawyer and hire his merchandising firm and Shetler as consultants to obtain a license and receive other benefits. Stephen Edwards spoke with Players between May 1993 and approximately February 1995. During this time, Players paid Shetler and Stephen Edwards more than a million dollars. The primary participants in the Treasure Chest Scheme included Martin, Edwin Edwards, and Stephen Edwards.

Martin, representing the Governor, extorted Robert Guidry (“Guidry”), who was a principal of the Treasure Chest Casino. Martin was in contact with Guidry between April 1994 and April 1997. Over these years, Guidry paid Stephen Edwards, Edwin Edwards, and Martin more than a million dollars. The 15th Riverboat License Scheme, so named because it was the final license to be awarded by the Board, was a father-son operation. Stephen Edwards and Edwin Edwards extorted Eddie DeBartolo, Jr. (“DeBartolo”) and his business partner, Ed Muransky.

DeBartolo, the then-owner of the San Francisco 49ers professional football team, was seeking a riverboat license pursuant to a joint venture between his company, DeBartolo Entertainment Corporation, and Hollywood Casino. Edwin Edwards and Stephen Edwards were in contact with DeBartolo between September 1996 and April 1997. DeBartolo made a one-time $400,000 payment to Edwin Edwards and Stephen Edwards in March 1997.

On August 4, 1999, a grand jury returned a 34-count superseding indictment, charging appellants Edwin Edwards, Stephen Edwards, Martin, Johnson and Brown with a violation of RICO [18 U.S.C. § 1961 et seq.], conspiracy to violate RICO [18 U.S.C. § 1962(d)], mail and wire fraud [18 U.S.C. § 1341 et seq.], extortion [18 U.S.C. § 1951], money laundering [18 U.S.C. § 1956], interstate travel and communication in aid of racketeering [18 U.S.C. § 1952] and false statements [18 U.S.C. § 1001].

The case was tried to a jury, and the appellants were convicted as follows: Edwin Edwards [Counts 1-2 (RICO), 12-15 (Players extortion), 17-19 (Treasure Chest extortion), 20-22 (15th Riverboat License fraud), 25-27 (15th Riverboat License fraud), 31 (15th Riverboat License extortion) and 34 (money laundering) ]; Stephen Edwards [1-2, 12-15, 16 (Interstate Travel in Aid of Racketeering) 17-19, 20-22, 25-27, 31 and 34]; Martin [1-2, 17-19 and 34] Brown [1-2 and 3-4 (Jazz extortion) ]; and Johnson [3-4, 5 (Interstate Communication in Aid of Racketeering), 6 (fraud), and 7-11 (false statements)].

Subsequent to the verdict, the Supreme Court decided Cleveland v. United States, 531 U.S. 12, 121 S.Ct. 365, 148 L.Ed.2d 221 (2000), holding that mail and wire fraud convictions cannot be based on the theory that the government was defrauded of its intangible right to issue licenses (hereinafter, “license as property theory”). In light of Cleveland, the district court granted new trials as follows: Edwin Edwards [Counts 20-22 and 25-27]; Stephen Edwards [20-22 and 25-27]; and Johnson [6]. In the process of trying this case, the district court made a number of rulings that are now challenged.

Specifically, the appellants contend that: (1) the district court erred by empaneling an anonymous jury; (2) the district court erred when it admitted evidence obtained via unauthorized wiretaps; (3) the district court erred when it admitted hearsay evidence pursuant to Fed.R.Evid. 801(d)(2)(E); (4) the district court erred when it ordered Johnson tried in absentia; (5) the district court erred when it dismissed Juror # 68 during deliberations; (6) the evidence at trial was insufficient to support all Brown and Johnson’s convictions as well as Stephen Edwards’s extortion conviction relating to the 15th Riverboat License Scheme; (7) the spillover effect from the counts based on the Cfeueicmd-repudiated “license as property” theory requires reversal of appellants’ convictions on some or all of the other counts;

(8) Stephen Edwards’ sentence should be vacated because the calculation of the extortion payments was overstated; and

(9) Johnson’s sentence should be vacated because the calculation of the extortion payments was overstated and because the evidence did not support an adjustment for obstruction of justice; (10) the restitution award against Martin should be set aside because it was not supported by the jury verdict; and (11) various aspects of their trial violated their due process rights. We address each contention in turn. II. Aware of the intense media, political, and emotional atmosphere surrounding this case, the district court withheld certain identifying information about potential jury members.

This omitted information included their names and places of employment. Regarding the potential jurors’ residential information, the district court released their zip codes and parishes, but withheld the exact addresses. Despite the lack of access to this information, the parties were able to view a large amount of other information about the venirepersons, including a twenty-eight page questionnaire consisting of 116 questions, some with subparts. Moreover, they were allowed to propose questions for potential jury members and ask follow-up questions.

The defendants contend that by withholding some juror information, the district court violated their right to a fair trial before an impartial jury. Additionally, they argue that this injury was exacerbated by the district court’s decision to close the proceedings it held to determine whether to withhold juror information. The closure of these proceedings, the defendants contend, violated their Sixth Amendment right to a public trial. A.

We have previously recognized the seriousness of the decision to withhold juror information, holding that it should be a last resort in a court’s efforts to protect the jurors from intimidating or prejudicial influences. See United States v. Krout, 66 F.3d 1420, 1427 (5th Cir.1995). This interest in juror protection must be balanced against the defendant’s interest in effective voir dire and the presumption of innocence. See id. The decision to empanel an anonymous jury is within the discretion of the district court. United States v. Sanchez, 74 F.3d 562, 564 (5th Cir.1996).

Factors that may support a district court’s decision include: (1) the defendants’ involvement in organized crime; (2) the defendants’ participation in a group with the capacity to harm jurors; (3) the defendants’ past attempts to interfere with the judicial process or witnesses; (4) the potential that, if convicted, the defendants will suffer a lengthy incarceration and substantial monetary penalties; and (5) extensive publicity that could enhance the possibility that jurors’ names would become public and expose them to intimidation and harassment. Krout, 66 F.3d at 1427.

Although the district court must base its decision on “more than mere allegations or inferences of potential risk[,]” id., it may consider the indictment and affidavits submitted by the parties. See United States v. Wilson, 160 F.3d 732, 747 (D.C.Cir.1998) (relying on indictment and- prosecutor’s affidavit); Krout, 66 F.3d at 1427 (relying on unsworn affidavit).

In view of the totality of the circumstances, the district court must “make a sensitive appraisal of the climate surrounding a trial and a prediction as to the potential security or publicity problems that may arise during the proceeding.” United States v. Branch, 91 F.3d 699, 723-24 (5th Cir.1996) (quoting United States v. Childress, 58 F.3d 693, 702 (D.C.Cir.1995)). We will not find an abuse of discretion if the “evidence at trial supports the conclusion that anonymity was warranted.” Krout, 66 F.3d at 1427.

As the Krout factors suggest, the paradigmatic situation justifying an anonymous jury is an organized crime trial, where the safety of the jurors becomes an overriding concern. See, e.g., United States v. Salvatore, 110 F.3d 1131, 1143-44 (5th Cir.1997) (upholding anonymous jury in case involving organized crime defendants), overruled on other grounds by Cleveland, 531 U.S. 12, 121 S.Ct. 365, 148 L.Ed.2d 221 (2000); Krout, 66 F.3d at 1427 (upholding anonymous jury in prosecution of member of Texas “Mexican Mafia”).

This is not to say, however, that the withholding of juror information is appropriate only in organized crime cases. We have previously approved of an anonymous jury when the case attracts unusually large media attention and arouses deep passions in the community. In the Branch case, we affirmed the district court’s decision to withhold certain identifying juror information in the trial of former members of the Branch Davidian sect.

Cautioning that “[n]ot all celebrated trials merit an anonymous jury,” we nevertheless relied on the intense press coverage and the passions that the trial incited, even though there was no indication that any of the defendants would interfere with the jurors. Branch, 91 F.3d at 723-24. In this respect, the present case closely resembles Branch. The overriding concern, and the most important factor in the district court’s analysis, was the intense media interest and highly charged emotional and political fervor that surrounded the trial.

Edwin Edwards was a four-term governor who, partly because of his previous legal entanglements, was a polarizing figure in Louisiana politics. His son, Stephen Edwards, had attracted intense media coverage. Tarver was a Louisiana state senator. In addition to these high profile defendants, several well known witnesses would testify at trial, including De-Bartolo, the owner of the Super Bowl Champion San Francisco 49ers, and Cleo Fields, a state senator and former United States Congressman. Moreover, the district court did not base its decision on publicity alone.

There were several allegations and examples of attempts to interfere with the judicial process and witnesses. The indictment charged Edwin Edwards and Stephen Edwards with the illegal wiretapping and countersurveillance of an FBI agent. In a related trial, Edwin Edwards was accused of witness tampering, and the government filed an affidavit accusing Edwin Edwards of using a state trooper to run records searches on certain persons during his previous criminal trials.

Furthermore, the present case involved his efforts to corrupt the state’s process for licensing riverboat gambling. ■ In addition to these indications of the defendants’ disregard for proper administrative and-judicial processes, the remaining Krout factors also support the district court’s decision to withhold juror information. The defendants all faced long periods of incarceration and significant prison sentences if convicted on all charges. Edwin Edwards alone faced a maximum of 375' years in prison and a fine of over $7,500,000.

Furthermore, the district court was concerned with the possibility that persons not directly involved with the case would engage in juror intimidation or harassment. Intrepid members of the media, for example, published the identity of a juror when it was discovered. They also attempted to identify jurors by determining where they were parked and obtaining their license plate information. Moreover, Edwin Edwards had numerous close political operatives and allies who also might have attempted to influence the jurors.

The prospect of such interference from the media and politically interested third parties militates in favor of withholding juror information. In assessing the reasonableness of the balance that the district court struck between the defendants’ rights and the protection of the jurors, we also note that the information withheld from the parties was limited. In referring to such juries as “anonymous,” we have previously cautioned against “painting with too broad a brush.” Branch, 91 F.3d at 723. As in Branch, the jury here was “anonymous” only “in the most literal sense.” Id.

The parties had access to the jurors’ zip codes, parishes, and the extensive information contained in the long questionnaire. With this information, the defendants are hard-pressed in demonstrating that they were prejudiced in any way during voir dire. They point to Juror 370, who had indicated on a questionnaire that she knew Stephen Edwards’ wife’s mother and grandmother “all her life.” A post-trial investigation allegedly revealed that she had made negative statements about Edwin Edwards in the past.

While recognizing that the withholding of juror information naturally invites this type of problem, we cannot find any real prejudice related to the empaneling of Juror 370. Her connection to Stephen Edwards was tenuous, and there is no indication that this connection biased her against the defendants. Finally, we do not overlook the fact that the district court minimized the possibility of any prejudice to the defendants by giving an explanatory jury instruction, which was similar to the instruction upheld in Branch.

See id. at 724 (noting that the trial judge in that case had explained the anonymity procedures as a response to intense trial publicity, polled the jury for any bias, and reaffirmed that the defendants were entitled to a presumption of innocence). This instruction referred to the intense media publicity as the reason for anonymity and gave no indication that the jurors should fear for their safety from the defendants. It reiterated that the defendants were presumed innocent until proven guilty and that the district court was using these procedures to protect juror privacy and ensure a fair trial for both sides.

The district court then questioned the jurors to determine whether they had any bias toward either party as a result of the decision to withhold their names. All jurors assured the district court that they did not harbor any such bias. Accordingly, in light of the weighty reasons for concealing juror information, the limited scope of the concealment, and the district court’s careful efforts to avoid prejudicing the defendants, we find no abuse of discretion. B.

The defendants also contend that the district court’s decision to close the hearing on whether to empanel an anonymous jury violated their Sixth Amendment right to a public trial. Their opposition to the closure represented a reversal of strategy. Initially, they had argued that the proceedings should not be public. Once damaging information appeared in the media, however, they began to worry about public speculation that Edwin Edwards had ties to organized crime. As a result of this concern, they changed their minds and unsuccessfully attempted to open the proceedings.

At the outset, we note that we have already approved the closure of voir dire proceedings in a related case, in which Edwin Edwards was also a defendant. See United States v. Brown, 250 F.3d 907, 922 (5th Cir.2001). Although Brown involved a First Amendment challenge to the closure of the voir dire proceedings, this distinction does not change our analysis. The caselaw applying the Sixth Amendment guarantee of a public trial was originally developed in cases involving the right of the public and press to attend trials, which is implicit in the First Amendment. See Ayala v.

Speckard, 131 F.3d 62, 68-69 (2d Cir.1997) (en banc); see also Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (discussing press access to voir dire); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982) (discussing press access to trial and preliminary hearing); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (discussing press access to trial). In Waller v.

Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), the Supreme Court applied these standards in the Sixth Amendment context, holding that the closure of a suppression hearing may violate the defendant’s right to a public trial. Id. at 47 (“In sum, we hold that under the Sixth Amendment, any closure of a suppression hearing over the objections of the accused must meet the tests set out in Press-Enterprise and its predecessors.”).

In doing so, the Court articulated the following test for determining whether the closure of a proceeding violates the Sixth Amendment: (1) the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced; (2) the closure must be no broader than necessary to protect that interest; (3) the trial court must consider reasonable alternatives to closing the proceeding; and (4) it must make findings adequate to support the closure. Id. at 48, 104 S.Ct. 2210.

Subsequent to Waller, the Court refined the first factor of this test, requiring a “substantial interest.” Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 14, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986). We must first determine whether Waller applies to the proceedings at issue in this case. In United States v. Norris, 780 F.2d 1207, 1210-11 (5th Cir.1986), we refused to extend that test to a bench conference about the admissibility of a particular piece of evidence.

We distinguished full suppression hearings, like the one considered in Waller, on the grounds that they often resemble a mini-trial and commonly determine the outcome of the prosecution. Id. at 1210. Because suppression hearings feature witnesses and involve an attack on the police and prosecutors, there is a vital public role in discouraging perjury and assuring that the government comports itself responsibly. Id. By contrast, legal arguments over relatively routine administrative matters do not implicate such concerns. Id.

Although it is impossible to characterize the proceedings regarding the district court’s decision on whether to withhold juror information as outcome determinative, we do see an important public role that counsels in favor of applying the Waller test. Like the suppression hearing, such proceedings involve an attack on the prosecution, specifically its accusations that the defendants constitute a threat to the integrity of the jury. Therefore, the argument that the presence of the public discourages perjury and encourages prose-cutorial responsibility applies with some force to the anonymous jury proceedings.

Accordingly, we decline to hold that the closure of such proceedings can never violate the Sixth Amendment. This is not to say, however, that the proceedings always must be conducted in public. Rather, the Waller test recognizes that a limited closure of proceedings can serve a substantial institutional interest without violating the Sixth Amendment. Indeed, the interest in avoiding prejudice in the jury pool may be particularly compelling in situations like these.

Because these proceedings are not full trials, there is often a limited chance for the defendant to properly contextualize or fully attack what are often mere allegations. As in the present case, the district court often will be relying in part on affidavit, accusation, and suggestion. In the absence of a full, critical evaluation and cross-examination, such raw allegations could make their way into the public discourse, thereby proving highly prejudicial to the defendant.

The defendants argue that the district court was not motivated by this interest in a fair trial for them, but rather closed the proceedings to protect the government. The record does not support this contention. The district court did worry about the association of “inaccurate motives with the government’s motion,” but its concern was clearly with the fairness of the impending trial and, in particular, the prejudicial effect of such public speculation on the defendants.

Moreover, in case any doubt surrounded the district court’s motives, it summed up its core concern: “The overall effect of conducting a public hearing on the motion would be just the harm the Fifth Circuit warns against: an unfair trial for the defendants.” We therefore conclude that a substantial interest supported the district court’s decision to hold nonpublic proceedings on the motion for an anonymous jury. We also conclude that the district court’s action was no broader than necessary, as the defendants have proposed no viable alternatives to closure.

They propose that the district court should not have worried about the possible taint of the jury pool because any tainted potential jurors could have be removed during voir dire. Acknowledging the potential prejudicial effect of accusations about the defendants’ alleged threat to juror integrity, however, we decline to require district courts to wait until voir dire to remedy any taint. Rather, we preserve the district court’s ability, when necessary, to act prophylaetically to avoid the problem.

Accordingly, we hold that the closure of the proceedings surrounding the anonymous jury did not violate the Sixth Amendment guarantee of a public trial. III. At trial, the government relied in part on evidence obtained from the electronic surveillance of Cecil Brown’s phones and Stephen Edwards’ office. This surveillance began after the government was approached by an informant, Pat Graham (“Graham”). Based on information provided by Graham, the government filed an application to wiretap Brown’s home and office phones. The information it learned from this surveillance led to the wiretap of Edwin Edwards’ home.

Eventually, the government also placed bugs, video cameras, and wiretaps in the offices of Edwin Edwards and Stephen Edwards. The defendants now challenge this surveillance. Their primary argument is that the original authorization for the Brown wiretap was improper because the FBI affidavit in support of the application was based on misleading information. This argument has already been considered and rejected by another panel of this Court in United States v. Cecil Brown, 298 F.3d 392 (5th Cir.2002). Upon our own review, we also find no merit in the defendants’ arguments on this issue.

In addition, Brown contends that the district court erroneously admitted intercepted communications between him and his civil attorneys in violation of the attorney-client privilege. Finally, Stephen Edwards argues that the government was not authorized to monitor his conversations with listening devices placed in his office. A. Brown contends that the district court erred in admitting wiretap intercepted conversations in violation of the attorney-client privilege. The conversations in question included several discussions, which at times involved Brown, his attorneys, Kenneth Pitre (“Pitre”) and Robert J.

Lenze (“Lenze”), and Edwin Edwards. They relate to lawsuits brought by principals of LRGC/NORC for the return of money extorted by Brown.

In an October 21, 1996 conversation, Brown, Edwin Edwards, and Pitre discussed the possible characterization of the extortion money paid to Brown as a loan rather than income because “we are not ever going to admit that this is a payment to him because then we’d owe income taxes on it.” They then discussed the failure of LRGC/ NORC to obtain a license, with Edwin Edwards stating that “Cecil can take the position that he did what was asked,” and Brown responding “I carried the water to the right places.” Edwin Edwards then opined that they needed someone to testify that LRGC/NORC was not awarded a license because “they were not strong enough financially.” This explanation covered up the true reason for LRGC/ NORC’s lack of success, as articulated by Brown: “the Governor has too many friends.” In a separate conversation, Brown told his attorney that the handling of the LRGC/NORC payments could not be exposed “openly in court” because with that money he had to “take care” of a “guy on the [Gaming] Board; and because we were throwing money around like crazy.” The attorney-client privilege, the oldest and most venerated of the common law privileges of confidential communications, serves important interests in our judicial system.

See Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). Nevertheless, despite its venerated position, the privilege is not absolute and is subject to several exceptions. Under the crime-fraud exception to the attorney-client privilege, the privilege can be overcome “where communication or work product is intended ‘to further continuing or future criminal or fraudulent activity.’ ” In re Grand Jury Subpoena, 220 F.3d 406, 410 (5th Cir.2000) (quoting United States v. Dyer, 722 F.2d 174, 177 (5th Cir.1983)).

The government, as the proponent of the otherwise privileged evidence, “has the burden of establishing a prima facie case that the attorney-client relationship was intended to further criminal or fraudulent activity.” Id. at 410. The district court agreed that the crime-fraud exception applied to these attorney-client communications, as Brown was using his lawyer’s services to cover up crimes related to his extortion of LRGC/NORC.

Because the application of the attorney-client privilege is a fact question to be determined in light of the purpose of the privilege and guided by judicial precedents, we review the district court’s finding for clear error only. United States v. Aucoin, 964 F.2d 1492, 1498 (5th Cir.1992). In determining whether the crime-fraud exception applies, we focus on the client’s purpose in seeking legal advice. In re Grand Jury Proceedings, 43 F.3d 966, 972 (5th Cir.1994) (per curiam). Brown relies heavily on the fact that the lawsuits that he hired Pitre and Lenze to defend did not allege any fraud or other crimes.

He further contends that the communications are privileged because they relate only to a defense against allegations of past wrongs, not continuing or future crimes. The district court agreed with the findings of Judge John V. Parker of the Middle District of Louisiana, who determined that (1) the payments at issue in the lawsuits were made to Brown in exchange for his guarantee of obtaining riverboat licenses for LRGC/NORC through means of bribery and fraud and

(2) Brown subsequently sought legal services to conceal and cover up the crimes committed with respect to the payments. We cannot conclude that these findings were clearly erroneous. Rather than merely defending himself against civil actions alleging past wrongdoing, Brown was actively continuing the cover-up of his extortion and perpetuating his tax fraud. Cf. Dyer, 722 F.2d at 177-78 (holding that a defendant’s use of a civil attorney to obtain a false exculpatory letter was not privileged under the crime-fraud exception).

Accordingly, we find no abuse of discretion in the admission of the communications between Brown and his attorney. B. The information it learned from consensual recordings and covert surveillance of Brown and others led the government to seek permission to increase its monitoring of Edwin Edwards and his associates. On December 6, 1996, the government obtained an authorization order to intercept oral communications “at the premises known as the law office of Edward [sic] W. Edwards located at 4621 Jamestown Avenue.” The named interceptees included Edwin Edwards, Brown, Richard L. Stalder, Pitre, Marion D.

Edwards, and Wanda Edwards. Pursuant to this authorization order, the government placed listening devices in the personal office of Stephen Edwards and intercepted at least two of his conversations. The defendants contend that these actions exceeded the scope of the December 6 order in two ways. First, the government was not allowed to place monitoring devices in the office of Stephen Edwards. Second, even assuming arguendo that the order permitted the placement of devices in Stephen Edwards’ office, it did not provide for the interception of his conversations because he was not a named interceptee.

The district court rejected these arguments. We review its

interpretation of the December 6 order de novo. See United States v. Smith, 273 F.3d 629, 632 (5th Cir.2001) (legal conclusions on motion to suppress reviewed de novo); United States v. Reyna, 218 F.3d 1108, 1110 (9th Cir.2000) (wiretap suppression reviewed de novo). Certainly, the defendants are correct in noting that the December 6 order does not explicitly refer to Stephen Edwards’ personal office.

This omission, however, does not end the inquiry, as we must still determine whether the placement of devices in Stephen Edwards’ office was justified under the order’s reference to “the premises known as the law office” of Edwin Edwards. Central to the resolution of this issue is the definition of “the premises known as the law office,” specifically, whether it referred to the entire group of legal offices at 4621 Jamestown Avenue or merely to Edwin Edwards’ personal office within the suite.

Because it is not clear from the face of the order how expansive that term was intended to be, it is helpful to consult the affidavit and application upon which the order was based. A reading of the detailed, sixty-seven page affidavit submitted by FBI Special Agent Geoffrey C. Santini supports an expansive

interpretation of “the premises known as the law office.” The affidavit states, in part: On December 3,1996, a separate cooperating witness (CW-3) advised that if an individual entered the front door of the law office and turned right at the reception desk, the first office on the right as one proceeded down the hall is the personal office of Stephen R. Edwards. The next office on the right down the hall is the personal office of Edwin W. Edwards. (Affiant asserts that Edwin W. Edwards’ office is located in the front corner of the law office). CW-3 advised that Edwin W.

Edwards currently conducts business in his personal office and on occasion in the office of Stephen R. Edwards. As this passage suggests, there is a difference in usage between the terms “law office” and “personal office.” This distinction is further supported by an attachment to the affidavit, which diagrams the layout of the entire office. The attachment indicates that although Edwin Edwards and Stephen Edwards had separate personal offices, the entire group of offices comprised a single, cohesive office area. There was a common reception desk, library, conference room, clerical/secretary area, and coffee area.

Finally, the affidavit stated that, according to a cooperating witness, Edwin Edwards “would in effect use the entire office for meetings and on many occasions the CW would meet and observe [Edwin] Edwards in Stephen R. Edwards [sic] office.” Our review of the affidavit, therefore, clarifies that the December 6 order’s reference to the law office of Edwin Edwards includes the entire group of legal offices at 4621 Jamestown Avenue, not merely the personal office of Edwin Edwards.

Accordingly, we agree with the district court that the order permitted the government to place listening devices in the personal office of Stephen Edwards. The defendants further contend that even if the listening devices were properly placed in Stephen Edwards’ office, the government was not permitted to listen to his conversations because he was not a named interceptee. In particular, two conversations are at issue. The first conversation, which took place on December 19, 1996, involved Edwin Edwards and Stephen Edwards discussing how to write checks so that they could disguise the criminal proceeds.

The next day, the government intercepted a second conversation featuring Stephen Edwards talking with Wanda Edwards, Marion Edwards, and Cecil Brown, all three of whom were named interceptees. Again, it is beyond dispute that Stephen Edwards is not among the named interceptees in the December 6 order, and that he was not added to that list until January 15, 1997, when the first thirty-day extension was granted. The order, however, does not limit its scope to named interceptees only.

Instead, it provides that interception may take place only when one of the named interceptees are [sic] within the target premises and are engaged in conversation or activity with any named or known coconspirator or any other individual that was caused to go to the target premises by a named interceptee or named or known cocon-spirator as related to the criminal offenses as set forth in paragraph A. The government contends, and the district court agreed, that the interception of Stephen Edwards’ conversations was appropriate because he was a coconspirator, as evidenced by the December 19 and 20 conversations.

It further relied on the fact that the government kept the issuing court fully abreast of the monitoring through a December 27, 1996 status report. Therefore, it argues, the interception of these conversations was fully authorized. We do not reach the same conclusion.

As the government concedes, because Stephen Edwards was not a named intercep-tee, the interception could be legal only if he was a “named or known coconspirator.” Contrary to the government’s suggestion, however, our focus in determining whether Stephen Edwards was a coconspirator must be on December 6, not on the dates of the intercepted conversations. Relying on the content of the actual conversations to justify post hoc otherwise illegal interception would constitute impermissible bootstrapping.

If the interception was not legal when the conversation began, it does not become legal simply because of what the participants discussed. We must therefore look instead for evidence that the government knew that Stephen Edwards was a coconspirator on December 6. Not only does the government fail to identify any such evidence, the clear terms of its December 6 application and affidavit suggest that none exists. As of December 6, the government was aware that Stephen Edwards maintained an office at the target premises and that Edwin Edwards often used that office to conduct business.

Nevertheless, there is no indication in the affidavit that the government thought that Stephen Edwards was involved in the alleged extortion schemes. By contrast, other members of the Edwards family who had offices at the target premises, such as Wanda Edwards and Marion Edwards, were suspected of illegalities and therefore were listed as named interceptees. In other words, our reading of the December 6 order, application, and affidavit leads us to the conclusion that Stephen Edwards was not listed as a named interceptee precisely because the government did not think he was a coconspirator.

Accordingly, because we conclude that Stephen Edwards was not a “named or known coconspirator” under the terms of the December 6 order, we hold that the December 19 and 20 conversations were illegally recorded and should have been suppressed. See 18 U.S.C. § 2518(10)(a) (providing for suppression remedy). Having determined that the district court’s admission of the December 19 and 20 conversations involving Stephen Edwards was erroneous, we now must decide whether that error was harmless.

To the extent that the error implicates Stephen Edwards’ Fourth Amendment rights, we ask whether it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Neder v. United States, 527 U.S. 1, 15, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (quoting Chapman v. Cal., 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). There is no dispute that the suppression of the December 19 and 20 conversations alone would not have made a difference in the verdict, as the evidence of the defendants' guilt was overwhelming.

Rather, the defendants suggest that the evidence obtained from the December 19 and 20 conversations provided the basis for the inclusion of Stephen Edwards as one of the named interceptees on the January 15, 1997 wiretap application. Moreover, they contend that the conversations also led to the April 1997 search of Stephen Edwards’ home. These arguments overstate the importance of the illegal interception. In its affidavit in support of its application for the January 15, 1997 wiretap authorization, the government detailed a January 9, 1997 conversation between Edwin Edwards and Martin.

The two men discussed Stephen Edwards’ role in the Treasure Chest Scheme, including a payment from Guidry to Stephen Edwards. Based on this evidence of Stephen Edwards’ involvement in the extortion scheme, there was a solid basis for adding Stephen Edwards as a named interceptee on January 15, even without the December 19 and 20 conversations. After receiving the January 15 wiretap authorization, the government amassed extensive evidence of Stephen Edwards’ criminal activities to support its subsequent April 1997 application for a search warrant.

In light of this evidence, which was wholly independent of the December 19 and 20 conversations, we hold that the admission of the illegal interceptions was harmless beyond a reasonable doubt. IV. At trial the district court admitted, over hearsay objection, testimony from Bernie Klein (“Klein”), describing statements made to him by Sam Gilliam (“Gilliam”). It concluded that the statements were non-hearsay because they were statements by a co-conspirator in furtherance of a conspiracy. See Fed.R.Evid. 801(d)(2)(E). Klein backed the Gretna Belle riverboat casino project.

At the time, Gilliam was a co-chairman of the Louisiana Riverboat Gaming Commission. Klein testified that he approached Gilliam after Gilliam voted against the Gretna Belle. Klein was surprised because he believed that Gilliam supported the Gretna Belle. Klein further testified that when he confronted Gilliam about the vote, Gilliam admitted that he had been instructed to change his vote or lose his livelihood.

The district court also admitted, over hearsay objection, testimony from Judge Hillary Crain (“Crain”), describing statements made by Ralph Perlman (“Perl-man”), again concluding that the statements were non-hearsay because they were statements by a co-conspirator in furtherance of a conspiracy. See Fed. R.Evid. 801(d)(2)(E). At the time, Crain was the chairman of the Gaming Control Board and Perlman was a Board member.

Crain was responsible for ensuring compliance with the Board’s rules, specifically its no-contact policy, whereby Board members agreed not to meet with anyone ex parte to discuss the licensing votes. Crain testified that Perlman said that he met Edwin Edwards for lunch, at which Edwin Edwards expressed interest in the upcoming vote. Crain also testified to a second, later statement by Perlman that he met with Edwin Edwards an additional time. Perlman reported that at that meeting Edwin Edwards asked him for his vote and told him that he already had the votes of the other Board members.

The defendants argue that the two aforementioned sets of statements were admitted in violation of the Confrontation Clause because the government failed to offer evidence that Gilliam or Perlman were conspirators or that their statements furthered the conspiracy. See Bourjaily v. United States, 483 U.S. 171, 182-183, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987) (explaining that because the co-conspirator statement exception to the hearsay rule is “firmly rooted,” proper admission of a co-conspirator statement does not offend the Sixth Amendment).

Although it is not clear from the record that the appellants asserted the Confrontation Clause as to all of these statements (as opposed to a hearsay objection), we need not address whether they were admitted in violation because we conclude that their admission was harmless beyond a reasonable doubt. See Hafdahl v. Johnson, 251 F.3d 528, 539-40 (5th Cir.2001).

To determine whether the error was harmless, “we consider the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and of course, the overall strength of the prosecution’s case.” Id. (citation omitted). All that these two sets of statements tend to prove is that the conspirators were influencing, or attempting to influence, the licensing votes.

There was a great deal of evidence of this fact in the record, including a number of Fed.R.Evid. 801(d)(2) admissions by the defendants. Furthermore, the defendants extensively cross-examined both witnesses: in each case the cross-examination took up much of an entire court day, Klein’s cross-examination testimony taking up 140 pages of transcript and Crane’s 167 pages.

Finally and most importantly, having reviewed the record, we conclude that government presented a strong case of guilt, including the aforementioned admissions, each victim’s testimony to the defendants’ extortion efforts and overwhelming documentary and wiretap evidence. V. Nearly three months into the trial, the district court was faced with a major disruption when one of the defendants, Bobby Johnson, underwent multiple bypass surgery. Although the March 2000 operation was considered urgent, Johnson’s heart condition was not a recent development.

The problem first surfaced in relation to the trial when one of Johnson’s attorneys, Patrick Fanning (“Fanning”), sent the district court a letter informing it of Johnson’s health problems. The September 10, 1999 letter explained that Johnson had learned the previous day that he had six blocked arteries, a condition that was not treatable by any method other than surgery. It further stated that during the next week, Johnson would be speaking to several surgeons to

schedule the procedure as soon as possible. At a status conference on September 13-14, the district court expressed its concern about Johnson’s health, and suggested that any surgery should be scheduled well in advance of the January 10, 2000 trial setting. It specifically admonished him not to wait until the last minute. Indeed, only one day after the hearing, Johnson’s cardiovascular surgeon, Carlton H. Sheely, M.D. (“Dr. Sheely”), sent Johnson a letter confirming that bypass surgery had been scheduled for September 24.

Just two days prior to surgery, however, Johnson cancelled it and decided instead to undergo chelation therapy, an alternative treatment. A major factor in this decision was Johnson’s fear that he would not survive the operation. His father-in-law had died after bypass surgery, and Johnson was afraid that he would suffer the same fate. Beyond assuaging his fears, though, chelation therapy had little to recommend it.

Even Johnson admits that the evidence in support of it was mixed at best, and one of his doctors criticized it as “quackery.” Despite the district court’s expressed concern about his condition, its worry that his health might jeopardize the trial schedule, and its desire to be kept up-to-date regarding the situation, Johnson never informed it that surgery had been scheduled and canceled. Moreover, instead of the careful medical attention that his condition required, Johnson went from September 1999 until March 2000 without seeing a cardiologist. During this time, he was treated by Stephanie F. Cave, M.D. (“Dr.

Cave”), his physician and family friend, and James P. Carter, M.D., Chairman of the Nutrition Department at the Tulane School of Public Health and Tropical Medicine and a proponent of chelation therapy. Over the course of his chelation treatment, Johnson did report feeling better. According to Dr. Sheely, however, this perceived improvement is consistent with the placebo effect. Therefore, by the start of trial on January 10, 2000, Johnson had cancelled the surgery that two separate cardiologists had recommended, had avoided his regular cardiologist, and had embarked on an unproven treatment regime.

The only indication of this turn of events that he gave to the district court was a brief reference during a December 10, 1999 pretrial conference to the fact that he was currently undergoing chelation therapy- Set against this course of conduct was Johnson’s firm belief that it was in his best interest to go to trial with the rest of the defendants, particularly Edwin Edwards. Specifically, he was hoping that some of the former governor’s reputed good will would rub off on him.

Moreover, his attorney’s strategy was, in part, to portray Johnson as a victim of the crossfire in a decades-long battle between Edwin Edwards and the federal government. Johnson worried that the surgery would jeopardize his ability to be tried with the entire group of defendants, and he was, in the words of his attorney, “hell-bent” on going to verdict with them. As the trial progressed, Johnson initially reported no complaints about his health. On March 2, nearly two months into the trial, the government began presenting evidence related to the Jazz Scheme and Johnson’s role in it.

This evidence was particularly damaging to Johnson’s defense. He was heard on tape threatening Jazz vice-president Mark Bradley (“Bradley”), who also took the stand against Johnson. Several newspaper articles noted the devastating effect of the tapes and Bradley’s testimony, speculating that it was difficult to imagine how Johnson would be able to beat the charges. By March 13, the government had completed its presentation on the Jazz Scheme and moved on to the 15th Riverboat Scheme, a matter that did not relate to Johnson.

The completion of the government’s case against Johnson marked the beginning of his continued absence from the trial. On March 14, Johnson left the proceedings early. When he had to leave early again the next day, attorney Fanning informed the district comb that his client was having recurring trouble with his health. As he had done for all his absences since September 1999, Johnson waived his right to be present. Fanning further indicated that he had no intention of requesting a continuance or severance, as Johnson still wanted to continue with the trial.

Despite the increasing likelihood that his health would be a major obstacle to his ability to continue with the trial, thereby presenting serious trial management problems for the district court, Johnson refused to see a cardiologist. On March 16, Fanning asked for the district court’s help in convincing his client to visit the cardiologist. The district court flirted with the possibility of forcing Johnson to undergo a medical evaluation as a condition of his bail, but ultimately decided against it.

On March 17 and 21, Johnson yet again left the trial before the afternoon session, waiving his presence on both occasions. He never returned. At a March 21 conference, the first of several regarding Johnson’s predicament, the district court learned that Johnson had not seen a cardiologist since September 1999. Nevertheless, Johnson insisted that he did not want a severance or mistrial because he still believed that it was in his best strategic interest to proceed with the trial. The next day, the district court was informed that Johnson had finally visited a cardiologist, Joseph Deumite, M.D. (“Dr.

Deumite”), who had recommended an urgent heart catheterization. The district court was also advised that, unlike every time in the past, Johnson was now refusing to waive his presence even though the government’s case against him was finished. On March 23, the district court received a letter from Dr. Deumite stating that bypass surgery had been scheduled for March 28. After the operation was performed, the government moved for trial in absentia. Johnson, whose team was split on strategic issues, sought a continuance.

On April 3, the district court held a conference to consider whether, and to what extent, Johnson could return from surgery to take

part in his trial. After hearing from Dr. Sheely and Dr. Deumite, it concluded that the best available alternative was to grant Johnson’s pending motion for a continuance. Johnson could use this time to recuperate, possibly enough to participate in the trial with certain accommodations. These accommodations, which included audio, video, or computer communication, would allow Johnson to monitor the trial from the comfort of his home. The government agreed to this plan, but the other defendants, worried about the delay and seeking a severance from Johnson, objected.

At that point, Fanning withdrew the motion for continuance, moved for a mistrial, and rejected the district court’s proposed accommodations as unacceptable. In essence, as the district court noted, Johnson’s deliberately reckless course of conduct with regard to his health had created a major problem: the government was moving for trial in absen-tia, one defendant had withdrawn a motion for continuance and moved instead for mistrial, and the other defendants were seeking a severance.

The district court’s tentative solution was to allow testimony to continue on matters unrelated to Johnson, giving Johnson the right to recall any of the witnesses on cross examination. The following day, the district court sua sponte reconsidered this ruling and postponed trial until April 10. Concerned that Johnson did not really support the motion that Fanning had filed, the district court ordered him to submit an affidavit confirming his consent to a mistrial.

During chambers conferences on April 4 and 6, it was clear from the statements of Fanning, Fanning’s co-counsel, Ernest Johnson, and Bobby Johnson’s wife, Kim Johnson (“Mrs. Johnson”), that Johnson did not consent to a mistrial and instead wanted to go forward with the trial. Further complicating the situation, Fanning and Ernest Johnson suggested to the district court that Johnson might not be competent as a result of his medication and post-operation depression. Competency aside, it was clear that the relationship and communication between Fanning and Johnson had badly deteriorated.

Specifically, Johnson was angry at Fanning after reading press coverage of Fanning’s reference to his client in open court as a “buffoon.” Ultimately, the district court, without an affidavit from Johnson and unsure as to whether any such affidavit would be knowing and intelligent, denied the motion for mistrial and granted the government’s motion for trial in absentia. Before the trial resumed on the morning of April 10, Fanning filed another motion for mistrial, which was now accompanied by affidavit from Johnson.

The district court denied this motion, but stressed that Johnson could still take advantage of the numerous accommodations it had previously offered him.

These options included (1) providing Johnson with a more comfortable chair, (2) having a nurse present at all times to monitor Johnson’s blood pressure and check on his overall health, (3) instituting longer and more frequent breaks in the trial, (4) allowing Johnson to participate through audio or video feeds, (5) providing Johnson and his counsel with real time transcription of trial proceedings, (6) permitting counsel to take as many recesses as necessary to confer with Johnson, (7) allowing communication equipment such as cell phones or beepers in the courtroom so that counsel could reach Johnson, (8) appointing an additional attorney to stay at home with Johnson to advise him from that location, (9) exercising discretion under Fed.R.Evid. 611 to allow Johnson to present his defense after the other defendants had completed their case, and (10) permitting Johnson to testify as the last witness in the trial.

All of these options would be provided at the expense of the district court. Nevertheless, Johnson declined them. Johnson did not return to court until after the jury delivered its verdict. Although offered a chance to testify in his defense, taking frequent or extended breaks as his health required, he claimed that he was physically unable to do so. In all, the defendants were able to put on their case in a mere four days, as Edwin Edwards was the sole defendant to testify. Johnson also failed to offer any evidence in his defense.

On April 17, the government presented its rebuttal case, which took less than one day. Before the government was allowed to make its closing argument in the Jazz Scheme, the district court contacted Dr. Deumite to obtain a progress report on Johnson’s recovery. Even though Dr. Deumite had not seen Johnson in ten days, he told the district court that he expected him to have improved substantially. He also noted that most patients would feel ready to return to at least limited activity about three weeks after the operation, and that Johnson’s recovery period was reaching that point.

The government was then allowed to finish its closing arguments. The defendants, including Johnson, also made their closing arguments before the case was submitted to the jury. Following the jury’s verdict finding him guilty on several counts, Johnson filed a motion for a new trial, arguing that the district court’s decision to try him in absentia was erroneous. The district court held extensive hearings on the issue and ultimately denied the motion in an exhaustive opinion. Johnson’s absence from the final weeks of his trial implicates constitutional, statutory, and commonlaw rights.

Rule 43 of the Federal Rules of Criminal Procedure codifies these rights, including due process, the Confrontation Clause, and the commonlaw right to be present. United States v. Navarro, 169 F.3d 228, 236 (5th Cir.1999). Under Rule 43, the defendant’s presence is not necessary if he becomes “voluntarily absent” after the commencement of the trial. Id. We review the district court’s determination that Johnson’s absence was voluntary for clear error. United States v. Davis, 61 F.3d 291, 302 (5th Cir.1995).

If we conclude that he voluntarily waived his right to be present at his own trial, we then consider whether the district court abused its discretion in deciding that there was a controlling public interest in continuing with the trial in his absence. See id. The district court concluded that Johnson’s absence was voluntary based on its finding that he made a deliberate tactical decision to postpone the surgery in order to gain the perceived strategic advantage of going to verdict with Edwin Edwards.

It clearly viewed Johnson’s failure to keep it informed of his medical decisions as consistent with the strategy to avoid severance at all costs. In light of the fact that the surgery he had in March 2000 was virtually the same operation that had been scheduled in September 1999, the district court was also suspicious of the timing of Johnson’s decision, coming immediately after the government presented damaging evidence against him.

Finally, it thought that his post-surgery legal maneuvers, including the shifting positions and his rejection of the district court’s accommodations, were indicative of an unwillingness rather than an inability to continue with the trial. Given the record evidence and the highly deferential standard under which we review the district court’s determination, we cannot conclude that its finding of voluntary absence is clearly erroneous. In doing so, however, we note that Johnson’s case presents a unique situation, not perfectly analogous to the easelaw relied on by either party.

On one hand, several courts have considered scenarios wherein the defendant voluntarily absents himself from the trial by either exaggerating his symptoms or by exploiting a nonemergen-cy condition in an obvious attempt to avoid trial. For example, in United States v. Pastor, 557 F.2d 930 (2d Cir.1977), the Second Circuit based its conclusion that the defendant was voluntarily absent on its disbelief that he was experiencing the severe heart problems he claimed. See id. at 937 (concluding that defendant was “exaggerating his illness” in an effort to postpone the proceedings in his case).

Similarly, in United States v. Barton, 647 F.2d 224 (2d Cir.1981), the Second Circuit noted the disingenuous nature of the defendant’s decision to undergo spinal surgery on the eve of trial despite the fact that his doctor had recommended the surgery seventeen months earlier. See id. at 238. The doctor stated that the operation was not performed on an emergency basis and that the defendant’s request for surgery came “out of the blue.” Id. Both of these cases are consistent with the law of our circuit, which holds that a defendant cannot avoid trial by misrepresenting or exploiting his medical condition.

See Davis, 61 F.3d at 302-03 (holding that the defendant’s absence was voluntary where her complaints of symptoms were not supported by medical records). In another line of decisions, however, Rule 43 has been held to prevent the trial court from continuing with proceedings when a legitimate medical emergency renders the defendant unable to be present. Johnson relies heavily on United States v. Novaton, 271 F.3d 968, 994-95 (11th Cir.2001), in which the trial court continued with the proceedings after one of the defendants fell ill.

The Eleventh Circuit vacated the conviction and remanded for a new trial, finding clear error in the district court’s determination that the defendant’s absence was voluntary. Id. at 997. In so holding, the Eleventh Circuit noted that after the defendant became ill, he and his counsel “cooperated commendably with the government and the district court” before eventually moving for a mistrial. Id.

Accordingly, under the Novaton standard, which we find entirely reasonable, a sudden, incapacitating illness can render a defendant involuntarily absent, especially when he cooperates with the trial court to minimize the disruptive effect of his condition. Johnson’s case does not fit neatly into either one of these lines of decisions.

Unlike the defendants’ symptoms in Barton and Pastor, Johnson’s symptoms were not a bluff, nor did his decision to have surgery come “out of the blue.” Johnson’s doctors testified that although his symptoms were the same in March as in September, they had become more acute and his coronary disease had progressed. The doctors also acknowledged the effect that a stressful trial would have on Johnson’s heart condition. Even after the surgery, there was no indication that he was faking his symptoms, as his doctor testified that they did not believe that he was malingering during the recovery period.

The central distinction between Johnson’s situation and the Barton-Pastor line, therefore, is that Johnson did not exploit his health condition to avoid a trial. Nevertheless, this distinction does not make the district court’s finding of voluntary absence clearly erroneous. There is ample support in the record for the district court’s conclusion that Johnson’s reckless course of conduct was part of a deliberate, tactical effort to avoid severance. Pursuant to this strategy, he avoided surgery in September 1999 even though two cardiologists had recommended it.

He never told the district court that the surgery had been scheduled or canceled, thereby leaving it in the dark about the seriousness of his condition. During the months preceding the trial, he failed to see a cardiologist, apparently out of fear that he would be advised yet again that surgery was necessary. This refusal to seek proper treatment and failure to keep the district court informed of his condition deprived it of the ability to take actions to prevent Johnson’s condition from jeopardizing its management of a long, complex, multi-defendant trial.

As a result of the lack of cooperation from Johnson, the district court was unaware that a severance might be necessary. At the very least, the district court was unable to take Johnson’s condition into account when it was determining how best to

schedule the presentation of evidence over the course of the trial. Further supporting the district court’s conclusion that Johnson’s absence was the result of an informed trial strategy was his post-operation legal maneuvering. Following his decision to finally undergo surgery after the government had completed a very strong case against him, he repeatedly refused to cooperate with the district court to minimize the disruption that his operation had caused. After initially seeking a continuance, he then pursued what could arguably be described as a boycott strategy.

He moved unsuccessfully for a mistrial and then refused every accommodation that the district court offered him. Moreover, despite the fact that the government’s case against him had already been completed, he would not waive his presence even though he had done so on every other occasion. This lack of cooperation distinguishes the present case from Nova-ton, in which the defendant “cooperated commendably” with the trial court. Nova-ton, 271 F.3d at 997.

In essence, by the time Johnson finally left the trial for good, his absence was purely the result of his own decision to avoid necessary medical treatment and his failure to keep the district court apprised of his condition. Furthermore, there is considerable evidence that these actions were part of a strategy to go to verdict with Edwin Edwards. Although Johnson has the right under Rule 43 to be present at his trial, he is not entitled to unilaterally dictate its time and circumstances. See Davis, 61 F.3d at 302 (quoting United States v. Tortora, 464 F.2d 1202, 1208 (2d Cir.1972)).

Otherwise, a defendant with a serious health condition like Johnson’s would have the ability to get two bites at the apple by refusing necessary medical treatment before trial, waiting to gauge the strength of the government’s presentation, and ultimately obtaining a mistrial if he then decided to have the treatment. As we decline to interpret Rule 43 as a tool for such tactical maneuvering, we hold that the district court’s determination that Johnson’s absence was voluntary is not clearly erroneous.

Furthermore, we have little difficulty concluding that the district court did not abuse its discretion in continuing with the proceedings in Johnson’s absence. The district court painstakingly chronicled the great expense and time invested in this long, complex, multi-defendant trial up to the point of Johnson’s departure. The trial was entering its third month, and the burdens which would have been placed on the witnesses, jurors, defendants, and the district court far exceeded the public interest in postponing the proceedings or conducting a separate trial with Johnson present.

See id. at 303 (finding no abuse of discretion in continuing with complex, multi-defendant trial despite voluntarily absent defendant). Accordingly, perceiving no clear error in the district court’s finding that Johnson was voluntarily absent, and discerning no abuse of discretion in its decision allowing the trial to proceed in his absence, we hold that there was no violation of Rule 43. VI. Eleven days after the jury began its deliberations in this case, the court dismissed Juror 68.

The events leading up to that dismissal are as follows: Juror 68 first came to the district court’s attention about midway through trial when it received an anonymous phone call (the “Bias Call”) accusing Juror 68 of (1) talking about the case at church functions; (2) being involved with Edwin Edwards in a medical transportation business; (3) seeking counseling from his pastor about the verdict; and (4) having a bias against Edwin Edwards. The court questioned Juror 68 about the allegations and made an initial determination that they were baseless.

After the United States Marshals were able to identify the anonymous callers, the district court made a testimonial record of the allegations and again concluded that the allegations were baseless. In dismissing Juror 68, the court explained that the Bias Call had nothing to do with his decision. Other events occurring during trial were slightly more troubling. First, the court observed that Juror 68 had, contrary to the court’s instructions, held onto a piece of transcript that was distributed during trial (the “Transcript Incident”).

Second, the court noticed that Juror 68 had, contrary to the court’s instructions, written his juror number on an evidence binder that was later re-used and handed to Edwin Edwards during his testimony (the “Binder Incident”). Despite these failures to follow the court’s instructions, the court took no action, allowing deliberations to begin on April 24th. On April 25th, a U.S. Marshal reported that he observed a dictionary and thesaurus in the jury room (“Dictionary Incident”). The court removed the books and re-instructed the jury not to bring any outside materials into the jury room.

The court subsequently determined that it was Juror 68 who was responsible for bringing the books in and that the

definitions of key terms, i.e., “conspiracy,” “extortion” and “extort” were discussed. Again, the district court exercised restraint, declining to take further action. On April 27th, the district court was informed that Juror 68 had left the jury room in tears. Per the court’s instructions, Juror 68 wrote a note (“Jury Note 7”), asserting that he has “doubts” and that he is being “intimidated” by other jurors, and suggesting that perhaps he should be dismissed.

Again demonstrating restraint, the court denied the government’s motion to dismiss Juror 68 without interviewing any of the jurors, and re-instructed the jury regarding their duty to deliberate. On May 1st, the court received a note signed by the Foreman (“Jury Note 11”), alleging that an unidentified juror was refusing to participate in deliberations. The court questioned the Foreman about Jury Note 11, determining that the note was referring to Juror 68.

When questioned about the note, the Foreman mentioned, in trying to explain the note’s allegation that Juror 68 was biased, that other jurors had seen Juror 68 on one occasion bring a note into the jury room and on another occasion remove sheets from his notebook from the jury room. In addition, there was subsequent testimony that Juror 68 was- referring to the note during deliberations. Understandably, the district court expressed great concern at the possibility that Juror 68 was again bringing .extrinsic material into the jury room.

Accordingly, on May 2nd the court held a hearing to question Juror 68 about Jury Note 11. Without informing Juror 68 about the Foreman’s testimony, the court also asked Juror 68 whether he brought any notes in or out of the jury room. Juror 68 responded in the negative. The district court then interviewed the rest of the jurors about the two note incidents described by the Foreman; all but one of the jurors testified, in contradiction to Juror 68’s testimony, to being aware of one or both of the incidents.

On May 3rd, over the prosecution’s objection, the district court allowed Juror 68 an opportunity to explain the inconsistencies between his testimony and that of the fellow jurors. Juror 68 then partially recanted his previous testimony, admitting to bringing a note into the jury room and removing sheets from his notebook. In fact, he informed the court that, contrary to the court’s instructions, he still had the note in his wallet. He explained that he remembered the two incidents after the court adjourned for the evening recess.

But his recollection of the two incidents still differed materially from that of other jurors. Following this testimony, the district court heard argument on the government’s motion to dismiss Juror 68. As noted above, on May 5th the court dismissed Juror 68, issuing detailed findings of fact and conclusions of law. The district court based its dismissal of Juror 68 on its findings that Juror 68 had displayed an inability to follow the court’s instructions and that, in his dealings with the court, Juror 68 was lacking in candor.

With respect to the former finding, the district court cited the Binder Incident, the Transcript Incident, the April 25th dictionary incident and Juror 68’s import and export of material from the jury room. With respect to the latter finding, the district court relied on his further finding that Juror 68 testified dishonestly on May 2nd when he denied importing and exporting material into the jury room. Finally, the district court made clear that it was not basing the dismissal on Juror 68’s view of the evidence. A. District courts have discretion to dismiss jurors for just cause. United States v.

Fryar, 867 F.2d 850, 853 (5th Cir.1989). A district court abuses its discretion only “when its ruling is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Whitehead v. Food Max of Miss., Inc., 277 F.3d 791, 792 (5th Cir.2002); see also United States v. Virgen-Moreno, 265 F.3d 276, 288 (5th Cir.2001) (“Unless the court’s removal of the juror has prejudiced the defendant, we will not disturb the court’s decision. Moreover, we will find prejudice only if the juror was discharged without factual support or for a legally irrelevant reason.”) (citation omitted).

Finally, “[u]nder the clearly erroneous standard, we may not reverse the district court’s findings of fact unless the review of the relevant evidence leaves us with the definite and firm conviction that a mistake has been committed.” Broussard v. United States, 989 F.2d 171, 178 (5th Cir.1993). The court found, based upon live testimony, that Juror 68 was unable to follow instructions and that he had displayed a lack of candor. The defendants do not contend that these two reasons for dismissal are legally irrelevant, see Fryar, 867 F.2d at 853 (affirming dismissal based on lack of candor); United States v.

Vega, 72 F.3d 507, 512 (7th Cir.1995) (affirming dismissal based on failure to follow instructions). Instead, they appear to contend that the “lack of candor” and “inability to follow instructions” findings are clearly erroneous. We disagree. With respect to his lack of candor, in its May 5, 2000 statement of reasons for dismissing Juror 68, the district court noted that it asked Juror 68 on May 2, 2000 to disclose any material of any type whatsoever that he brought into or took out of the jury room and to describe each item with particularity.

When answering these questions on May 2nd, Juror 68 did not disclose the two incidents described by the Foreman and the other jurors on May 1st and 2nd. He did disclose the incidents on May 3rd when he was recalled, but the district court observed that his testimony seemed coached, noting that “some of his statements yesterday came out of a case.” In fact, the court described Juror 68’s May 3rd testimony as “shocking].” Furthermore, as noted above, Juror 68’s May 3rd description of the various incidents was still inconsistent with that of other jurors’.

These inconsistencies also clearly support the “lack of candor” finding. Finally, the district court was rightly concerned with the fact that Juror 68 failed to correct his earlier misstatements until recalled and questioned by the court. Accordingly, we cannot say that the district court’s finding of fact is clearly erroneous. With respect to Juror 68’s inability or unwillingness to follow instructions, the defendants apparently concede that his behavior with respect to the Dictionary Incident, Transcript Incident, Binder Incident and note incidents constituted a failure to follow instructions.

The defendants argue, however, that these mistakes were innocent, understandable and harmless. In light of the standard of review, their concession is fatal, regardless of their personal view of the seriousness of Juror 68’s infractions. Collectively, these failures to follow the court instructions, in addition to any observations the court may have made respecting Juror 68’s demeanor, clearly support the district court’s factual finding that Juror 68 was unable to follow its instructions.

Alternatively, the defendants vigorously contend that the abuse of discretion standard should not apply to dismissals occurring after commencement of deliberation. They argue that we should adopt a much more stringent standard in such cases, reversing whenever there is “a possibility that the dismissal was prompted by the juror’s doubts about the defendant’s guilt.” In support of this proposition, the defendants rely primarily on United States v. Brown, 823 F.2d 591 (D.C.Cir.1987), United States v. Thomas, 116 F.3d 606 (2d Cir.1997) and United States v. Symington, 195 F.3d 1080 (9th Cir.1999).

Their reb-anee on these cases is misplaced; the holdings are not nearly so broad. Brown and Thomas are “jury nullification” dismissals. In both, the district court dismissed a juror during deliberations, concluding that juror was refusing to apply the substantive law. Brown, 823 F.2d at 595; Thomas, 116 F.3d at 611-12. After reviewing the records, the D.C. Circuit and Second Circuit, respectively, reversed, concluding that the evidence revealed a “substantial possibility” that the juror was motivated not by a desire to nullify, but by legitimate concerns about the sufficiency of the evidence.

Brown, 823 F.2d at 596; Thomas, 116 F.3d at 623. These courts reasoned that the “substantial possibility” rule was necessary for nullification-based dismissals because, due to the sanctity of jury deliberations, the court will generally be unable to determine the true nature of the juror’s difficulty.

Brown, 823 F.2d at 596; Thomas, 116 F.3d at 622 (“Given the necessary limitations on a court’s investigatory authority in cases involving a juror’s alleged refusal to follow the law, a lower evidentiary standard could lead to the removal of jurors on the basis of their view of the sufficiency of the prosecution’s evidence.”).

In Symington, the Ninth Circuit, relying on Brown and Thomas, reversed a district court’s juror dismissal that rested on the juror’s refusal to deliberate, concluding that a reasonable possibility existed that the other jurors’ problems with the dismissed juror were based upon that juror’s view on the sufficiency of the evidence. Id. at 1088. As the government notes in its brief, however, the court in Symington also specifically emphasized the narrow nature of its holding: Cases subject to [reasonable probability] rule, we emphasize, are infrequent.

In general, questions of juror bias or competence focus on some event ... that is both easily identifiable and subject to investigation and findings without intrusion into the deliberative process. In those cases, the presiding judge can make appropriate findings and establish whether a juror is biased or otherwise unable to serve without delving into the reasons underlying the juror’s views on the merits of the case. Since the district court’s investigative authority is not constrained by the same jury secrecy concerns in those cases, the rule we announce here is not triggered.

In cases where the allegations go to the quality and coherence of the juror’s views on the merits, however, a trial judge may not be able to assess the juror’s competence without exposing the content of the juror’s views. The rule we announce today applies only to those cases. Symington, 195 F.3d at 1087 n. 6.

As the discussion of the cases above illustrates, Brown, Thomas and Syming-ton stand for the limited proposition that a court may not dismiss a juror based upon its conclusion that the juror is failing to participate in the deliberative process in accordance with law unless there is no possibility that the juror’s problem stems from his view of the sufficiency of the evidence.

Even at its broadest, the reasoning of these cases extends only to those dismissals where the juror’s conduct cannot be evaluated without delving into the reasons underlying the jurors’ views of the case, i.e., where the deliberative process has been implicated. As the dismissal in this case clearly did not require evaluation of such evidence, and in fact the district court took great pains to protect jury secrecy, the Brown, Thomas and Symington rule is inapplicable. Alternatively, the defendants

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