Hermanek

MEMORANDUM **

Appellants appeal their convictions and sentences after their joint trial for cocaine trafficking, cocaine possession and related crimes. 1 Because the parties are familiar with the facts, we recite only those facts necessary to explain our disposition.

Ex Parte Hearing

Appellants contend a pretrial, ex parte hearing held between the government and the district court regarding Rutherford’s motions to substitute counsel and for severance violated Rutherford’s right to counsel, all appellants’ right to be present at trial and all appellants’ right to appeal. We assume that the hearing took place, although no transcript exists.

Right to Counsel and Right to Be Present

Assuming that the ex parte hearing was a critical stage of the proceedings, we conclude that any deprivation of appellants’ Fifth and Sixth Amendment rights was harmless beyond a reasonable doubt. Rutherford made several motions and requests relating to substitution of counsel and severance before, during and after the trial and several hearings were conducted to consider those requests. The district court denied Rutherford’s motion for severance subsequent to and without relying on the contents of…