Defining the Contours of Sidebar Presence and Rule 404(b) Admissibility in United States v. Civitello

Introduction

United States v. Civitello is a Second Circuit summary order affirming the convictions and sentences of defendants Robert J. Ingrao, Jeffrey Civitello Sr., Jeffrey Civitello Jr., Christopher J. Kelly, and Richard Sinde, for their roles in a Queens-to-Schenectady cocaine trafficking conspiracy. Defendants sought reversal on multiple fronts:

Their constitutional right to be present at sidebar conferences during jury selection;
The district court’s refusal to strike a juror for cause;
The admissibility of other-acts evidence under Federal Rule of Evidence 404(b);
The admission of jail-call recordings and background testimony;
The denial of a Rule 33 new-trial motion;
And challenges to the calculation and reasonableness of Defendant Sinde’s sentence under the Sentencing Guidelines.

Summary of the Judgment

On May 1, 2025, a three-judge Second Circuit panel affirmed the district court’s judgments. The court held:

Civitello Sr.’s absence from sidebars during voir dire, while error if absolute, did not constitute plain error because he suffered no prejudice—defense counsel was present and no substantive questions went unanswered.
The refusal to strike Juror No. 85 for cause was not an abuse of discretion—thorough voir dire established her ability to be impartial despite a family history of drug addiction and favorable views of law enforcement.
Evidence of prior drug transactions between Kelly and Civitello Sr. was properly admitted under the inclusionary Rule 404(b) approach (probative of intent/knowledge and not unduly prejudicial under Rule 403).
Jail-call recordings between Sinde and Ingrao were admissible to show coconspirator relationship, subject to a limiting instruction under Rule 105.
Background testimony about an unrelated investigation into Civitello Jr. was admissible to explain law-enforcement conduct and narrative flow.
No new trial was warranted under Rule 33—credibility disputes (including Kelly’s perceived inconsistencies) are for the jury, and the verdict was not manifestly unjust.
Sinde’s sentencing challenges failed: the criminal history category was correctly calculated under U.S.S.G. § 4A1.2, and his 168-month sentence was both procedurally and substantively reasonable under § 3553(a).

Analysis

Precedents Cited

Faretta v. California, 422 U.S. 806 (1975), and Fed. R. Crim. P. 43 – defendant’s right to be present at trial stages and permissible exceptions;
United States v. Allen, 788 F.3d 61 (2d Cir. 2015) – distinguishing substantive voir dire from administrative questioning;
United States v. Feliciano, 223 F.3d 102 (2d Cir. 2000) – harmless-error review when defendant misses sidebars but counsel attends;
United States v. Garcia, 291 F.3d 127 (2d Cir. 2002) and United States v. Cadet, 664 F.3d 27 (2d Cir. 2011) – inclusionary approach to Rule 404(b);
Old Chief v. United States, 519 U.S. 172 (1997), and United States v. Al-Moayad, 545 F.3d 139 (2d Cir. 2008) – narrative background evidence;
United States v. Cavera, 550 F.3d 180 (2d Cir. 2008, en banc) – sentencing-reasonableness standards under § 3553(a).

Legal Reasoning

1. Sidebar Presence: Although Rule 43 guarantees the right to be present at “every trial stage,” the court distinguishes substantive voir dire questions (where a defendant must be present) from administrative concerns (where absence can be harmless). Here, counsel participated, the defendant consulted during breaks, and no juror selection question went unanswered.

2. Juror Impartiality: A district judge’s ruling on cause challenges is reviewed for abuse of discretion. Detailed voir dire showed Juror 85 could be impartial despite personal drug-addiction connections and pro-law enforcement views.

3. Rule 404(b) Evidence: Under the “inclusionary” approach, other-acts evidence relevant to intent or knowledge is admissible if its probative value is not substantially outweighed by unfair prejudice. Prior drug sales between Kelly and Civitello Sr. explained their relationship and refuted the defense’s mistake-theory.

4. Jail-Calls and Background Testimony: Coconcealed recordings of calls between Sinde and Ingrao were probative of their cooperation and properly limited to those defendants under Rule 105. Background testimony about an investigation of Civitello Jr. was permitted to maintain the natural narrative sequence, not to show propensity.

5. New Trial (Rule 33): The district court need only grant a new trial if upholding the verdict would be a “manifest injustice.” Witness credibility is for the jury; corroboration by surveillance, physical evidence and third-party testimony made the verdict sound.

6. Sentencing: The Guidelines correctly assigned three criminal history points under § 4A1.2(k) for a supervised-release violation within 15 years. A base offense level of 30, Criminal History Category IV, and a 168-month sentence fell within the 135–168-month advisory range. The district court’s § 3553(a) analysis of recidivism, seriousness, deterrence, and national disparity conformed to law and was not “shockingly” unreasonable.

Impact

Although a non-precedential summary order, United States v. Civitello consolidates and clarifies key trial and sentencing doctrines:

Defendants’ presence at sidebar conferences is not absolute; harmless-error principles apply when counsel is present and no prejudice results.
Trial judges retain broad discretion in striking jurors for cause based on demeanor and answers.
Rule 404(b) inclusionary analysis continues to permit other-acts evidence relevant to intent or knowledge, subject to Rule 403 balancing.
Rule 105 limiting instructions effectively manage prejudice in multi-defendant cases.
Background evidence explaining law-enforcement conduct is admissible to preserve narrative coherence.
Rule 33 new-trial motions face a high bar; juries are primary assessors of credibility.
Strict application of U.S.S.G. § 4A1.2 and § 3553(a) is required in sentencing, including supervised release calculations and nationwide disparity considerations.

Complex Concepts Simplified

Plain Error vs. Abuse of Discretion: Plain error is obvious, affects substantial rights, and undermines fairness; abuse of discretion is a broader, deferential review of trial-court rulings.
404(b) Inclusionary Approach: Other-acts evidence is admissible if it advances a material issue (e.g., intent), not merely to show bad character.
Rule 403 Balancing: Courts exclude relevant evidence only if unfair prejudice substantially outweighs probative value.
Limiting Instruction (Rule 105): Jury is directed to consider certain evidence only against specific defendants or for designated purposes.
Manifest Injustice (Rule 33): New trials are warranted only when allowing the verdict would offend basic fairness.
Sentencing Guidelines § 4A1.2: Defines when multiple prior sentences count separately for criminal history, based on timing, length, and whether concurrent.

Conclusion

United States v. Civitello offers trial courts a concise roadmap for handling sidebar participation, jury-selection challenges, other-acts and background evidence, and post-verdict relief in multi-defendant conspiracy trials. It also reinforces the rigorous application of sentencing calculations and reasonableness review. While non-precedential, the opinion crystallizes principles that will guide district courts and litigants on critical procedural and evidentiary issues.