Full opinion text
HAMILTON, Circuit Judge. The Insane Deuces was a street gang engaged in a long-running conspiracy involving deadly violence and drug distribution in northern Illinois. In 2006, a grand jury indicted sixteen individuals involved in the gang for conspiracy under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(d), and related charges of murder, conspiracy to commit murder, assault with a dangerous weapon, drug distribution, conspiracy to distribute drugs, and unlawful possession of firearms. One defendant named in the indictment was not apprehended and remains a fugitive. Another pled guilty. The case against the other fourteen was severed into two trials. The appeals addressed in this opinion stem from the first trial. A second set of appeals stems from the second trial. Our opinion in that case, also released today, is reported as United States v. Morales, et al., 655 F.3d 608 (7th Cir.2011). Seven defendants were tried in the first trial. Six were found guilty and appeal their convictions. They are Bolivar Benabe, Julian Salazar, Juan Juarez, Christian Guzman, Stephen Susinka, and Fernando Delatorre. The trial of these appellants began on February 6, 2008, and ran through the return of the special RICO verdicts and forfeiture verdicts on April 23, 2008. Over the course of several weeks the government presented and the jury heard evidence that in 2002 alone, the Insane Deuces committed four murders, eleven attempted murders, two solicitations to commit murder, and multiple other shootings. The evidence was presented through eyewitness testimony, the testimony of cooperating witnesses, recorded co-conspirator statements, and ballistics evidence. Eyewitnesses who were not in the gang identified the shooters in three murders and/or attempted murders proven at trial, including the identification of defendant Guzman as the shooter in a July 18, 2002 attempted murder and the August 11, 2002 murder of David Lazcano. Five former Insane Deuces testified against the defendants, describing for the jury the gang’s structure, leadership, and membership, its rules and regulations, and providing horrific details of the murders and attempted murders committed by the Insane Deuces. Through search warrants, arrests, or cooperation, the government recovered firearms used in eleven of the sixteen murders and attempted murders presented to the jury at trial, directly linking the Insane Deuces to those shootings. All six of the defendants were convicted of RICO conspiracy, 18 U.S.C. § 1962(d) (Count 1 of the Second Superceding Indictment). Delatorre and Guzman were convicted of murder in aid of racketeering activity, 18 U.S.C. § 1959(a)(1) (Count 2), and Juarez and Salazar were convicted of conspiracy to commit murder in aid of racketeering, 18 U.S.C. § 1959(a)(5) (Counts 3 (Salazar) and 4 (Juarez and Salazar)). Delatorre, Benabe, Juarez, and Salazar were convicted of conspiracy to distribute controlled substances, 21 U.S.C. § 846 (Count 9). Delatorre was also convicted of assault with a dangerous weapon in aid of racketeering activity, 18 U.S.C. § 1959(a)(3) (Count 5), murder in aid of racketeering activity, 18 U.S.C. § 1959(a)(1) (Counts 6 and 7), distribution of crack cocaine, 21 U.S.C. § 841(a)(1) (Count 12), and possession of a firearm with an obliterated serial number, 18 U.S.C. § 922(k) (Count 13). After a second round of deliberations, the jury returned a special RICO verdict assigning responsibility for four murders that were charged in Paragraphs 15, 16, 19, and 20 of Count 1. The jury also returned a finding with respect to Delatorre and Benabe that eighteen firearms be forfeited. Following denial of the defendants’ post-trial motions, the court sentenced Delatorre, Benabe, Juarez, Salazar and Guzman to life imprisonment. Susinka was sentenced to twenty years in prison. All defendants appeal their convictions; Susinka also appeals his sentence. The defendants’ appeals present a host of issues. We address many of those issues in a separate unpublished order issued today. We address in this opinion several issues for which a published opinion may be useful: (1) the district court’s decision to try the case by an anonymous jury; (2) the district court’s decision to remove defendants Delatorre and Benabe from the courtroom upon their refusal to assure the court on the eve of trial that they would refrain from inappropriate outbursts in the presence of the jury; (3) the district court’s denial of a motion to suppress in-court and out-of-court eyewitness identifications of Guzman as the shooter in a gang murder; (4) the district court’s jury instructions; (5) the district judge’s decision to provide the jury with partial transcripts during its deliberations; and (6) alleged juror “misconduct” that came to light after the verdict was rendered. Before addressing these questions we provide an overview of the Aurora Insane Deuces gang and the relevant facts. This summary, which only scratches the surface of the evidence presented to the jury, is recounted here in the light most favorable to the verdicts. Additional facts are available in our companion case, Morales, 655 F.3d at 615-20. The Aurora “Insane Deuces” The Aurora faction of the Insane Deuces was the focus of this case. Its goal was to eliminate rival gangs and take over the streets of Aurora. Non-Insane Deuces were a threat to this goal. As defendant Salazar explained at a gang meeting in the summer of 2002, “They’re a threat because they’re a threat to our growth, our growth, because all of those neutron kids growin’ up, they’re given’ them another option to turn to somethin’ else.... They should only have one choice.... Either if you gonna be that side ... you gonna be on this side, you ain’t got but one choice. Turn Deuce. They stuntin’ our growth.” The gang was organized into three levels of manpower: “Seniors,” “Juniors” and “Shorties.” The Juniors were the active gang members most responsible for day-to-day operations. Seniors were older members of the gang who were less active but advised the Juniors. The Shorties were the youngest members of the gang, often juveniles, whose job it was to carry out the orders of the Juniors. Juniors were led by members who served in roles of “Junior Governor,” “Lieutenant Governor,” and “Enforcer,” and similarly the Shorties were led internally by their own “First Seat,” “Second Seat,” and “Enforcer.” Individual gang members advanced within the gang by committing acts of violence, such as shooting members of rival gangs on “missions.” The gang conducted meetings for Juniors and Shorties, called “juntas,” at which the gang’s business was discussed: missions and leadership roles were assigned, conflicts with rival gangs were reviewed, violence against rival gangs was planned, and intelligence was shared. The attending members also discussed dealing drugs, efforts to acquire firearms, the appropriate apportionment of dues and fines among the members, and how to support members who had been jailed. Insane Deuces in jail continued to enjoy the privileges of gang membership and could expect support and protection from their fellow members. The gang had written rules, called “leyas,” and also abided by other, unwritten rules. Members were required to follow orders and report “missions” to their superiors. Members were punished, or “violated,” for disobeying a rule. “Violations” ranged from assignments to additional missions to being beaten to being killed. Cooperation with law enforcement warranted the worst violation. The gang also maintained a “caja,” which provided members with access to a common supply of drugs, guns, and money. Members took drugs from the caja, sold them, and then returned their cost and some profit to the caja. This profit went toward the purchase of additional firearms and drugs, and for bail money. Members of the Insane Deuces also could benefit from the “free enterprise” rule, which permitted members to deal drugs on the side so long as they shared their individual profits with the gang for its benefit. In May 2002, in a coup that would lead to the indictments in this case, an Aurora police detective recruited Orlando Rivera as a confidential source. At the time, Rivera was a Junior Enforcer of the Aurora Insane Deuces. Under the supervision of local police and federal agents, Rivera provided information about the gang’s activities and began making recorded purchases of firearms and cocaine from the Insane Deuces and their associates. In return for his cooperation with and assistance to law enforcement, Rivera was given total immunity. Rivera also attended and recorded gang meetings and one-on-one conversations he had with members after shootings, including murders. In these recordings, gang members planned violent acts against rival gangs (including murder). They discussed their ability to make money through drug sales fronted by the caja, as well as the need for more firearms. They also discussed the gang’s ultimate goal of taking over Aurora’s streets, the gang’s organizational structure, and its system of dues and fines. These recordings featured prominently in the trial and no doubt left an indelible impression on the jury. Over Rivera’s six days of testimony, the jury heard recordings he had made of gang meetings and activities on approximately 22 dates. Through Rivera’s secret recordings, the jury heard the defendants’ own statements about their activities. For example, in a recorded meeting on August 22, 2002, Delatorre confirmed that the gang was involved in the July 18, 2002 shooting of a rival Latin King. He also admitted to being the driver in the Lazcano murder, giving specific details, including the car he drove and the type of gun used. The jury heard a recorded conversation between Rivera and Delatorre on October 19, 2002, when the two met to dispose of two firearms. Delatorre told Rivera in the recording that he and other Insane Deuces killed David Morales on October 16, 2002. Law enforcement recovered the firearms. Ballistics evidence matched one gun to the Morales murder and the other to two shootings — a September 19, 2002 attempted murder in which a bystander was shot in the back, and a September 28, 2002 attempted murder in which another bystander, a 14-year-old boy, was shot in the back and paralyzed. Other Insane Deuces admitted on tape to being involved in three murders and three attempted murders, and Salazar was recorded soliciting the commission of murder in August 2002. Issues Presented on Appeal I. Anonymous Jury Ordinarily, parties have available to them the names, addresses, occupations, and locations of employment of potential jurors. They can then use this information to question potential jurors to discern possible biases. Unfortunately, in some trials, potential jurors are at high risk of harassment, intimidation, or other unwelcome and disruptive influences. To protect potential jurors and their families, the trial court may decide to withhold identifying information from the parties, although the decision cannot be taken lightly. “An anonymous jury raises the specter that the defendant is a dangerous person from whom the jurors must be protected, thereby implicating the defendant’s constitutional right to a presumption of innocence.” United States v. Mansoori, 304 F.3d 635, 650 (7th Cir.2002), quoting United States v. Ross, 33 F.3d 1507, 1519 (11th Cir.1994). “Juror anonymity also deprives the defendant of information that might help him to make appropriate challenges — in particular, peremptory challenges — during jury selection.” Mansoori, 304 F.3d at 650, citing United States v. DiDomenico, 78 F.3d 294, 301 (7th Cir.1996); United States v. Edmond, 52 F.3d 1080, 1090 (D.C.Cir. 1995). Although empaneling an anonymous jury is an extreme measure, it may be warranted where “there is a strong reason to believe the jury needs protection.” United States v. Crockett, 979 F.2d 1204, 1215 (7th Cir.1992). The trial court therefore must weigh the defendant’s and the public’s interest in preserving the presumption of innocence and in conducting a useful voir dire against the dual interests of the jurors’ security and their impartiality. Mansoori, 304 F.3d at 650. Here, the government argued that anonymity was necessary to protect the safety of the jurors. The defendants objected. The defendants argued that potential jurors likely would be unwilling to be sufficiently forthcoming in voir dire if anonymous, and that an anonymous jury would be unduly alarmed about possible threats to their safety, prejudicing the defendants. After noting that the defendants were accused of being involved in organized crime and faced life sentences if convicted, Judge Castillo granted the government’s motion. He further concluded that “the government has alleged with sufficient particularity that the defendants have a history of intimidating witnesses or otherwise obstructing justice such that they may do so in connection with this trial.” In support of this finding, Judge Castillo relied heavily on the gang’s history of retaliation and intimidation of witnesses and cooperators. He noted that Salazar and Juarez, together with severed co-defendants Mariano Morales and Arturo Barbosa, were accused of conspiring to murder an individual who they believed was cooperating with law enforcement. Rivera had surreptitiously recorded these defendants arranging the murder of the suspected informant in October and November 2002. Also, severed co-defendant Steven Perez was accused of firing 29 rounds into Rivera’s parents’ house, injuring his father, after the gang learned of Rivera’s cooperation. Each of these incidents occurred more than four years before the trial began, but because one of the charged defendants was still at large and other members of the gang had not been charged and were free, the judge concluded that the gang had the means to intimidate jurors, a history of such intimidation, and that under these circumstances, juror anonymity was warranted. On appeal, we review the district court’s decision to empanel an anonymous jury for abuse of discretion. Mansoori, 304 F.3d at 650. We find that there was no abuse of discretion here. Judge Castillo weighed the appropriate factors, which, as Mansoori instructs, included the defendants’ involvement in organized crime, the Insane Deuces’ capacity to harm jurors, the Insane Deuces’ previous attempts to interfere with the judicial process, the severity of the sentences the defendants faced if convicted, and whether publicity surrounding the case presented the prospect that the jurors’ names could become public and expose them to intimidation or harassment. Id. at 650-51. An anonymous jury is not appropriate in every criminal trial involving organized crime. “Something more” than the organized-crime label is necessary to justify juror anonymity, such as “a demonstrable history or likelihood of obstruction of justice” by the defendants or a “showing that trial evidence will depict a pattern of violence by the defendant and his associates such as would cause a juror to reasonably fear for his own safety.” Mansoori, 304 F.3d at 651, quoting Crockett, 979 F.2d at 1216. The record in this case fully supports Judge Castillo’s finding that the Insane Deuces had a history of witness intimidation, that the gang retained the capacity to strike at members of the jury, and that there was a real risk of juror intimidation. In other words, this case had the requisite “something more.” The district court properly exercised its discretion to keep this jury anonymous, and we affirm its decision. II. Absence of Delatorre and Benabe from the Courtroom On February 5, 2008, the day before jury selection began, the district judge ordered that defendants Delatorre and Benabe would not be permitted to attend the trial unless and until they assured the judge that they would not disrupt the trial. Both refused. The judge made arrangements for them to watch a video feed of the trial from their detention center, though neither did. The judge also made it clear that they could return to court to attend their trial whenever they were willing to promise to behave. Neither ever did so. Joined by each of their co-defendants, Delatorre and Benabe argue on appeal that the judge’s handling of their behavior violated their rights under the Sixth Amendment and Federal Rule of Criminal Procedure 43. As we explain below, the record shows that Judge Castillo was patient and judicious in dealing with these defendants’ persistent attempts to disrupt their prosecution. He took the extraordinary step of barring them from attending trial only after it was clear that they intended to disrupt the trial and undermine the ability of the other defendants and the government to have a fair trial. Both defendants effectively consented to their removal by their conduct, so we find no constitutional error. We find that the district court erred under Rule 43 by barring the defendants from trial on the day before trial rather than on the first morning of trial, but we find that the error in timing was harmless. A. Disruptions by Delatorre and Benabe Removal of the accused from his criminal trial will rarely be justified, but it was justified by this record, which we describe in detail to show the judge’s efforts to ensure that the trial would be fair for all parties before removing these two defendants from the courtroom. Delatorre played the leading role. He was represented by two attorneys, but on October 16, 2007, he filed the first of more than twenty pro se documents describing himself as “Sovereign Secured Party Creditor Fernando Delatorre.” In these papers, he challenged the legitimacy of the United States government, its jurisdiction over him, and the validity of the charges brought against him. He claimed to be “sovereign” and immune from prosecution. Benabe later joined Delatorre in this effort to thwart the proceedings by his own assertions of “sovereignty” and immunity. On October 17, 2007, the court heard argument on Delatorre’s motion to suppress evidence. Delatorre appeared but refused to participate because his attorneys “refused to represent me as a flesh- and-blood human being.” The next day, giving Delatorre the benefit of the doubt, the court ordered Delatorre to undergo a competency evaluation. At a status hearing held on October 31, 2007, Delatorre referred to himself as “a secured party creditor ... third-party intervenor.” He claimed that he was not the person named in the indictment because his name was not spelled with all capital letters (as it was in the indictment). He demanded to know of the prosecutor “what legal definition exactly, legal definition of the term person are you applying to me for the purposes of these proceedings?” At the court’s next status hearing, Delatorre repeated his claim that he was “a born sovereign flesh-and-blood human being and a secured party creditor.” When the court announced that there would be a hearing on the competency evaluation, Delatorre interrupted: “I need to address these various issues right here and now.” The court stated the hearing was concluded. Undeterred, Delatorre continued: “Let the record reflect the Court is not allowing me to address my various issues and is intending to punish me for exercising my rights as a sovereign secured party creditor.” The court then ended the hearing. The next hearing of note was on January 11, 2008. Delatorre’s attorney introduced himself, and Delatorre broke in: “Excuse me, Mr. Kling does not represent me in any way, shape or form.... That is all I have to say for now.” Judge Castillo then found Delatorre competent to stand trial and urged him to discuss his case with his court-appointed counsel to prepare for trial. But Delatorre’s disruptions continued. He told the court that his attorneys had refused to represent him as a secured party creditor and that the government had refused to respond to his requests about the basis for his prosecution. Looking ahead toward the trial, Judge Castillo advised Delatorre that any outbursts in front of the jury would prejudice him. Delatorre, however, maintained that he continued to challenge what he called the court’s “subject matter and personam jurisdiction.” Judge Castillo then referred to Delatorre’s pro se filings and said that his requests would be denied. Delatorre asked if he would receive something in writing, and the judge said that he would issue a minute order. Delatorre asked about the nature and content of the forthcoming order. Judge Castillo told him that while he might be unhappy with the ruling, he could appeal. Delatorre continued his protests. Judge Castillo asked him to be quiet, and Delatorre responded, “I’m going to politely honor that request.” He did not. Instead, as the judge tried to move on, Delatorre interrupted to ask the court again about his pro se filings. Judge Castillo responded, “I think I already asked you, Mr. Delatorre, if there was anything else you wanted to cover.” Undeterred, Delatorre continued: DELATORRE: Well I did. You asked me to remain silent though. You asked. You responded that I do so, but I would like to continue to speak, if that would be possible. Can I? COURT: I would ask you to remain silent then because I think I’ve covered it. DELATORRE: Then I’m going to have to honor that— COURT: Are there any other pro se motions? DELATORRE: —because you have not answered my questions. COURT: No, I’m asking you to remain silent at this point. DELATORRE: And I’m asking you to respond to my questions. Delatorre then continued for several more pages of transcript without interruption, demanding an explanation of the gold fringe on the flag in the courtroom, repeating his jurisdictional objections, and making assertions such as: “No one can explain to me why the United States has to operate as a corporation. No one can explain to me that there is, in fact, a distinction between the united 50 union states and the United States federal government. No one can explain to me who’s, in fact, bringing this claim or charge against me.” By this time, Judge Castillo, the prosecutors, and defense counsel were justifiably concerned about the prospect that Delatorre would disrupt the trial, prejudicing himself and his co-defendants. Judge Castillo asked the prosecutors how they wished to proceed with Delatorre, and several co-defendants then moved for severance. Judge Castillo said at this point that it was becoming increasingly likely that Delatorre would continue in his sovereign-citizen assertions out of turn and in front of the jury. He expressed his reluctance either to remove Delatorre from the courtroom or to bind and gag him at trial. At the next status conference, on January 29, 2008, Delatorre tried to seize the agenda by repeating his jurisdictional challenges. Judge Castillo allowed him to talk and then explained once again that he rejected Delatorre’s jurisdictional challenges, and reasonably asked Delatorre whether he could refrain from disrupting the trial. Delatorre refused to answer. After listening to more of Delatorre’s ramblings, the court asked once again: “My question to you is once we start picking the jury ... will you allow your attorneys to speak for you during the jury selection and trial?” Again, Delatorre did not answer. Instead he asserted that his attorneys were refusing to represent him “as a flesh-and-blood human being,” that his name was spelled incorrectly in the indictment, and that he needed the court to prove that the government had jurisdiction over him. He insisted that he did not consent to the proceedings and that he was a sovereign and thus immune from prosecution. With admirable patience, the court again asked, “Are you going to allow Mr. Kling and Mr. Huyck to represent you and stay silent while we select a jury next Wednesday?” The judge explained that “if you disrupt the jury selection, I’m going to have no choice but to have you removed from the courtroom. Do you understand that?” Delatorre’s disruptions continued. After warning him once more that “the consequences of continuing along these lines will be you being removed from the trial and the trial will proceed without you,” Judge Castillo ordered him removed from the courtroom. Delatorre had been the only defendant to appear at the January 29 conference in person; the other defendants (including Benabe) were represented by counsel but were not themselves present, having waived their right to appear. The following day the court issued an opinion rejecting Delatorre’s sovereign-citizen theories and recounting the history of his disruptive behavior. The written opinion again warned Delatorre “that his continued failure to obey this Court’s orders could result in him being barred from the courtroom during jury selection or trial to avoid potential prejudice to his six co-Defendants and to himself.” United States v. Delatorre, 2008 WL 312647, at *3 (N.D.Ill. Jan. 30, 2008). At a status conference hearing on January 31, Judge Castillo asked defense counsel to read the January 30 order and to share it with each of the defendants. With all defendants present, the judge said that before the start of the trial, he would ask “each defendant if they intend to speak during the trial without ... court permission. And any defendant who responds in the affirmative will be held at the [Metropolitan Correctional Center] from day one of the trial and will see the trial from a seat at the MCC. I will not allow any defendant to prejudice any of the other defendants on trial before any of the prospective jurors.” The judge stated that “any further attempts by Mr. Delatorre or any defendant to disrupt this trial will have to be interpreted by me as a willingness on the part of that defendant to watch the trial at the MCC, and I will make arrangements to ensure that that happens.” After these warnings at the beginning of the January 31 status conference, defendant Benabe interrupted and began to pursue the same disruptive course that Delatorre had followed. Benabe began to protest the court’s jurisdiction by stating that he was “a secured-party creditor, third-party intervenor” and that he was not the “all-capital, corporate fiction person, debtor, straw man” named in the indictment. He demanded “documented evidence” that the court had jurisdiction over him as a “born sovereign, flesh-and-blood human being.” The trial court referred Benabe to its January 30 opinion and stated that it was a “bad sign” that Benabe did not want to read the opinion. The court again warned Benabe that before the trial started, “I will ask you whether or not you’re going to make statements without ... court permission during the trial. If you give me no answer or if you say that you will, I will hold you at the MCC while the trial proceeds.” When Benabe continued to demand proof that the court had jurisdiction over him, the court ordered him removed from the courtroom. (After his removal, Benabe filed multiple pro se documents on February 4 that echoed his January 31 assertion of “sovereign citizenship.”) After Benabe’s removal from the courtroom, Delatorre joined in again, saying, “I’m not a defendant, but I have an unresolved issue that I would like to address.” He was also removed at that point. Things came to a head on February 5— the day before jury selection would begin. All defendants were present for another status hearing. True to his word, Judge Castillo inquired whether counsel had received the January 30 opinion, whether defendants had read it, and whether each defendant agreed not to make any statements to the jury without permission. All agreed except Delatorre and Benabe. Benabe refused to answer the court’s question. Instead, he erupted with another tirade about “illegal prosecution.” The court had him removed. When it was his turn, Delatorre said he had not read the opinion. The prosecution provided him with a copy, but Delatorre refused to read it, supposedly because it did not address him by his “birth given name.” The judge asked him again whether he intended to make statements to jurors without permission. Following Benabe’s lead, Delatorre refused to answer. Instead, he proffered a written “Affidavit of Truth,” the second paragraph of which asserted: “That the undersigned Affiant intends to fully cooperate with the Court’s proceeding during and throughout the course of trial.” The judge accepted a copy of Delatorre’s document, and then repeated his question orally. Delatorre’s only response was to deflect the court’s question by asserting: “I’ve addressed your concerns out of fear of my life and of physical harm in writing.” This exchange occurred twice more. Finding that Delatorre had refused several times to confirm that he would not interrupt the jury selection or trial, the court ordered him removed. The court explained that the MCC would provide Delatorre and Benabe with a room with a live video feed from the courtroom, and that they could watch the trial from there if they wished. The court made it clear that Delatorre and Benabe were free to return to the courtroom at any time if they would “indicate that they will not speak in front of the prospective jurors or the final jury ... without the permission of this Court, as long as they’ll abide by simple courtroom behavior.” Counsel for Delatorre objected, asserting that Delatorre had not yet acted up in the presence of jurors and that he should not be removed preemptively. The court’s response pointed out the unusual challenges posed by Delatorre’s behavior in jury selection for a trial expected to last several months, with a panel of prospective jurors who had been screened already for their ability to serve in such a long trial: Mr. Delatorre ... has disrupted, and the record will reflect that, every single one of the last proceedings. He has interrupted me repeatedly.... You’re asking me to get 120 or so prospective jurors who have been carefully selected who will probably go through a snow storm to get here and to taint them with one of his outbursts, and at which point we will have to delay the trial again, while we try and put together a required jury pool. I’m not willing to do that ... and I don’t think any defendant should control a federal courtroom to that extent. The judge did not need to add how difficult it would be, and how long it would take, to clear all of the necessary calendars of the court and counsel to reschedule the trial if Delatorre or Benabe were permitted to disrupt jury selection and taint the panel of prospective jurors. On February 6, 2008, the first day of trial, counsel reported that Delatorre and Benabe had both refused to see them that morning, although both were in the lockup in the courthouse. The court reminded counsel that there was a video feed to the MCC in the event that Delatorre or Benabe wanted to watch the trial, and overruled counsel’s renewed objection that the defendants had been removed before they were actually disruptive. Jury selection began. The court informed the prospective jurors that Delatorre and Benabe “have been excused from attending the trial ... for reasons that have nothing to do with the merits of the trial.” After reminding the prospective jurors of the presumption of innocence, the court inquired whether the absence of Delatorre and Benabe would affect any of them one way or the other. Prospective jurors who indicated that they could not be neutral or had feelings about the issue were excused for cause without objection. As trial progressed, the court repeatedly asked whether Delatorre and Benabe were willing to attend the trial. Delatorre and Benabe refused to communicate with their attorneys, and the trial proceeded without them. Neither defendant watched the live video feed of the trial at the MCC. B. Analysis Delatorre and Benabe argue that the trial court violated their rights under the Sixth Amendment and Federal Rule of Criminal Procedure 43(c) to be present at all .stages of trial by removing them for their behavior. They assert that removing a misbehaving defendant before trial has begun is a per se violation of that defendant’s Sixth Amendment rights. They also argue that their behavior was not terribly disruptive, and that even if their pre-trial behavior did rise to such a level that there was a real risk that trial could not proceed, the court was required to follow a “hierarchy of remedies.” In then-view, removal is a last resort available only after a defendant has been bound, gagged, shackled, and held in contempt. We first address whether the defendants’ argument that their conduct never rose to a level that would have required their removal. We then address their arguments that their removal violated then-rights to be present under the Constitution and then Rule 48. We hold that by then-conduct, Delatorre and Benabe consented to their removal from the courtroom during trial, unless and until they were ready to promise to behave. The record demonstrates that Delatorre and Benabe knowingly and voluntarily waived their constitutional right to be present, and the district judge did not err by removing them from the courtroom. That waiver resolves the Sixth Amendment issue. However, the defendants were not “initially present” at trial before being warned and removed, which Federal Rule of Criminal Procedure 43(c) explicitly requires. In this respect the trial court erred, but on this record there was no difference between ordering the defendants removed on the day before trial rather than waiting until the morning of trial. The Rule 43(c) error was harmless. 1. Defendants’ Misconduct A threshold question raised by the defendants is whether their conduct justified their removal. Although they now admit that their tactics were “ill-advised,” they contend that their pre-trial behavior was not a valid predictor of how they would behave before a jury, and that their behavior was never so disorderly, disruptive, or disrespectful that the trial could not have been conducted in their presence. Delatorre also argues that in fact he did comply with Judge Castillo’s request that he promise not to disrupt the trial in his ■written “Affidavit of Truth.” True, neither Delatorre or Benabe behaved in a violent, threatening, or obscene manner. They cloaked themselves in politeness, often saying “please,” “thank you,” and “excuse me.” But there is no question that their frequent and undeterred outbursts, in which the defendants declared themselves to be “sovereign citizens,” “secured-party creditors” and “flesh-and-blood human beings” who were somehow outside the jurisdiction of the court, were obstructive, disrespectful, and potentially inflammatory. The defendants regularly spoke out of turn, sidelined the legitimate business of the court, and wasted valuable judicial resources with then-baseless immunity claims. The district judge was rightly concerned that Delatorre and Benabe would speak out of turn and espouse their theories in front of the jury, causing confusion, prejudicing their co-defendants, and tainting a carefully screened jury pool. In that equation, the defendants’ relative politeness simply does not matter, and we will not second-guess Judge Castillo’s assessment. We are also unpersuaded by the defendants’ argument that their pre-trial behavior was not an appropriate predictor of how they would behave before the jury. These defendants were relentless in their interruptions, consistently attempting to derail nearly every pre-trial status conference they attended. Nevertheless, after clearly explaining the risks and consequences, Judge Castillo gave them each one final opportunity to assure him that they would not disrupt the proceedings after the case was called and the prospective jurors brought into the courtroom. They each refused to give that assurance. The combination of their pretrial behavior and their refusal to promise to control them behavior at trial was a sufficiently reliable indicator of trouble, threatening the ability of the other defendants to receive a fair trial. Judge Castillo did not err in relying on these defendants’ past performances and their refusals to promise to behave appropriately before the jury. Delatorre argues that Judge Castillo failed to acknowledge that in his written “Affidavit of Truth” of February 5, he did as Judge Castillo asked and promised to refrain from outbursts before the jury, making his promise in writing because he feared for his life. Paragraph 2 of his affidavit stated that he “intends to fully cooperate with the Courts proceedings during and throughout the courts of trial.” The first problem with Delatorre’s argument is the rest of his affidavit. Paragraph 2 contained his promise to refrain from outbursts, but paragraphs 1, 3, 4, 5, 6, 7, and 7A (of eight total paragraphs) echoed the same nonsensical assertions of sovereignty and immunity that Delatorre had advocated in disrupting the prior proceedings. Judge Castillo reasonably dismissed paragraph 2 of Delatorre’s Affidavit of Truth as meaningless, given its context. Second, there was no evidence, then or now, that Delatorre’s life was in any danger. After Delatorre’s repeated outbursts and his ongoing disrespect for the court, the prosecution, his own counsel, and the proceedings, Judge Castillo’s demand that Delatorre state openly and on the record that he would cease his outbursts was reasonable. We find no error in the judge’s interpretation of Delatorre’s refusal to answer a direct question in open court as a clear threat that Delatorre intended to disrupt the trial. Our intention is not to quash the presentation of creative legal arguments or novel legal theories asserted in good faith. But the arguments raised by these defendants were not in good faith. We have repeatedly rejected their theories of individual sovereignty, immunity from prosecution, and their ilk. See United States v. Burke, 425 F.3d 400, 408 (7th Cir.2005); United States v. Hilgeford, 7 F.3d 1340, 1342 (7th Cir. 1993) (rejecting the “shop worn” argument that a defendant is a sovereign and is beyond the jurisdiction bounds of the district court); United States v. Sloan, 939 F.2d 499, 500-01 (7th Cir.1991); United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir.1990) (describing defendant’s proposed “sovereign citizen” defense as having “no conceivable validity in American law”); United States v. Phillips, 326 Fed. Appx. 400 (7th Cir.2009) (dismissing jurisdiction arguments as frivolous because federal courts have subject matter and personal jurisdiction over defendants brought before them on federal indictments alleging violations of federal law). Regardless of an individual’s claimed status of descent, be it as a “sovereign citizen,” a “secured-party creditor,” or a “flesh-and-blood human being,” that person is not beyond the jurisdiction of the courts. These theories should be rejected summarily, however they are presented. These defendants raised their immunity arguments with the trial court, which properly dismissed them. But for these defendants, once was not enough. Rather than acknowledging the court’s ruling (and, if they wished, saving their arguments for appeal), these defendants continued to interrupt the proceedings in a campaign to obstruct the trial. In doing so, they crossed the line, entering the territory of abuse of the judicial process. Judge Castillo did not err in acting on his valid concern that Delatorre and Benabe would continue on their campaign of confusion and obstruction in the presence of the jury at the risk of prejudicing the venire and necessitating a delay of the proceedings. 2. Due Process and the Sixth Amendment After issuing a warning, the trial court in Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), removed from the courtroom a criminal defendant who was spewing threats and other abuse. In upholding the trial court’s decision to expel Allen from the courtroom, Justice Black wrote: It is not pleasant to hold that the respondent Allen was properly banished from the court for a part of his own trial. But our courts, palladiums of liberty as they are, cannot be treated disrespectfully with impunity. Nor can the accused be permitted by his disruptive conduct indefinitely to avoid being tried on the charges brought against him. It would degrade our country and our judicial system to permit our courts to be bullied, insulted, and humiliated and their orderly progress thwarted and obstructed by defendants brought before them charged with crimes. As guardians of the public welfare, our state and federal judicial systems strive to administer equal justice to the rich and the poor, the good and the bad, the native and foreign born of every race, nationality, and religion. Being manned by humans, the courts are not perfect and are bound to make some errors. But, if our courts are to remain what the Founders intended, the citadels of justice, their proceedings cannot and must not be infected with the sort of scurrilous, abusive language and conduct paraded before the Illinois trial judge in this case. Allen, 397 U.S. at 346, 90 S.Ct. 1057. Yet, a criminal defendant’s right to be present at trial is constitutional bedrock. The Sixth Amendment provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury ...; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.” There is no question that under this Amendment, the accused has a right to be present at trial. See Allen, 397 U.S. at 338, 90 S.Ct. 1057. The Due Process Clauses of the Fifth and Fourteenth Amendments offer additional protection. For due process, a defendant must be present “to the extent that a fair and just hearing would be thwarted by his absence.” Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987), quoting Snyder v. Massachusetts, 291 U.S. 97, 107-08, 54 S.Ct. 330, 78 L.Ed. 674 (1934). In reconciling these competing interests, the law allows criminal defendants to waive their constitutional right to be present at trial. See Diaz v. United States, 223 U.S. 442, 455, 32 S.Ct. 250, 56 L.Ed. 500 (1912) (“where the offense is not capital and the accused is not in custody, the prevailing rule has been, that if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but on the contrary, operates as a waiver of his right to be present”); see also Taylor v. United States, 414 U.S. 17, 19-20, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973) (per curiam) (discussing knowing and voluntary waiver of right to be present at trial as sufficient for constitutionally valid trial in absentia); United States v. Watkins, 983 F.2d 1413, 1419 (7th Cir.1993). A defendant in a criminal trial may waive his right to be present either “by consent or at times even by misconduct.” Snyder, 291 U.S. at 106, 54 S.Ct. 330. In other words, a defendant’s consent to removal need not be explicit. It can be implied, based on the defendant’s actions. See Watkins, 983 F.2d at 1420; see also Taylor, 414 U.S. at 20, 94 S.Ct. 194 (inferring consent from an admittedly voluntary departure during trial). Such a waiver, however, must be both knowing and voluntary, and the court “must indulge every reasonable presumption against the loss of constitutional rights.” Allen, 397 U.S. at 343, 90 S.Ct. 1057. A defendant who has lost his right to be present can always regain it as soon as he “is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.” Id. Keeping with other circuits that have addressed situations akin to this one, we conduct a three-pronged inquiry to review a district court’s finding that a criminal defendant has waived his right to be present at trial. See Watkins, 983 F.2d at 1419; see also United States v. Tureseo, 566 F.3d 77, 83-84 (2d Cir.2009); United States v. Bradford, 237 F.3d 1306, 1311 (11th Cir.2001); United States v. Davis, 61 F.3d 291, 302 (5th Cir.1995); United States v. Guyon, 27 F.3d 723, 727 (1st Cir.1994). First, we determine whether the district court abused its discretion when it found that the accused had knowingly and voluntarily waived the right, reviewing for clear error the district court’s factual finding that the waiver was knowing and voluntary. Watkins, 983 F.2d at 1419, citing United States v. Fontanez, 878 F.2d 33, 35 (2d Cir.1989), and United States v. Houtchens, 926 F.2d 824, 827 (9th Cir. 1991). We will reverse if we find that the district court “left unexplored serious questions as to whether the appellant’s absence was knowing and voluntary.” See Watkins, 983 F.2d at 1419, citing United States v. Hernandez, 873 F.2d 516, 519 (2d Cir.1989). Second, we consider whether the court appropriately exercised its discretion in concluding that there was a controlling public interest to continue the trial in spite of the defendant’s absence. See id. at 1419, citing Fontanez, 878 F.2d at 35, and United States v. Tortora, 464 F.2d 1202, 1210 (2d Cir.1972). The court must consider the likelihood that the trial could take place with the defendant present, the difficulty of rescheduling, the inconvenience to jurors, and the burden on the government and others of having to undertake two trials, particularly in a multiple defendant case. See id., quoting Fontanez, 878 F.2d at 37. Finally, if we conclude that the district court erred either in finding a knowing and voluntary waiver or in continuing the trial in the defendant’s absence, we consider whether the error was harmless in light of the record as a whole. Watkins, 983 F.2d at 1419; see also Stincer, 482 U.S. at 745, 107 S.Ct. 2658 (stating that the right to be present is not guaranteed “when presence would be useless, or the benefit but a shadow”) (internal citation and quotation marks omitted); Chapman v. California, 386 U.S. 18, 22-24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (error will be considered harmless if it did not contribute to the verdict). The record before us offers clear support for the district judge’s determination that, through their tandem campaign of obstreperous interruptions and frivolous legal arguments, Delatorre and Benabe knowingly and voluntarily waived their right to be present a trial. Recognizing the stakes, Judge Castillo gave these defendants many opportunities to change course and to participate in the proceedings. They chose to abuse and disrespect those opportunities. As the judge’s January 30 order made clear, he would not permit Delatorre (who, at that point, was a lone operator) to prejudice the other defendants before the jury by his behavior. Judge Castillo notified all the defendants that Delatorre’s chosen course could result in his being barred from the courtroom. Then, in open court on January 31, Delatorre and Benabe were warned orally that the judge would ask them if they intended to speak out of turn at trial, and if they refused to confirm that they would behave respectfully in front of the jury, Judge Castillo would interpret that refusal as “a willingness on the part of that defendant to watch the trial at the MCC.” The day before trial was scheduled to begin, Judge Castillo directly asked each defendant whether he agreed not to make any statements to the jury without the court’s permission. All defendants agreed to this simple and basic condition, except Delatorre and Benabe. Both clearly knew at that point what would happen if they refused to promise on the record and in open court to refrain from any further outbursts. They made their choice, and the record fully supports the judge’s determination that they made that choice knowingly and voluntarily. Once they were removed, the district court left the courtroom door open for them, making plain that they could return at any time during the trial upon promising to behave properly. They never did so. The record establishes that Delatorre and Benabe consented to waive their constitutional rights to be present at their trial. Judge Castillo also appropriately weighed the public interests at stake. Five other defendants were scheduled to be tried in this complex and lengthy trial, and their right to an impartial jury was under serious threat from Delatorre’s and Benabe’s behavior. The jury pool had been screened for prospective jurors who could serve for a long trial. If Delatorre and Benabe had succeeded in tainting the jury pool, it would have been a long and difficult process to put together another. Also, the schedules of the defense lawyers, the prosecutors, and the court had been cleared so that the trial could go forward as efficiently as possible. No doubt Judge Castillo had pushed off other trials and proceedings to make room for the Insane Deuces, and it would have been nearly impossible to ready any other parties to go to trial during any ensuing delay. Modern American courts simply do not have the luxury of time to indulge the obstructionist tactics of these defendants. Budgets, calendars, and administrative capacities are already too strained. Judge Castillo did not abuse his discretion in determining that the public interest weighed strongly in favor of moving the trial forward, even if that meant going forward with Delatorre and Benabe out of the courtroom. We find no constitutional error in their exclusion. The defendants argue that the Sixth Amendment establishes a per se rule that a disruptive defendant must be present at the beginning of trial before being removed and that a trial judge must exhaust every other possible cure before removing a defendant from the courtroom. But the Allen Court found that the Sixth Amendment does not “so handicap a trial judge in conducting a criminal trial.” Allen, 397 U.S. at 342, 90 S.Ct. 1057. The Court commented that, as inherently onerous as their options are, trial judges might choose to handle obstructive defendants with binding and gagging, contempt citations, or removal of the defendant, without treading on the Constitution. See id. at 344-46, 90 S.Ct. 1057. But the Court did not make removal a last resort. Instead, the Court put its faith in trial courts to choose the best method to maintain the dignity and decorum of the proceedings in a case-by-case fashion, based on the unique circumstances presented by the defendant and the trial, while preserving the rights of criminal defendants. “We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case. No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations.” Id. at 343, 90 S.Ct. 1057. Ultimately, the Allen Court held that a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. See id. That is exactly what occurred here. There was no constitutional error. 3. Rule JpS We now shift gears from the Constitution to the more demanding provisions of Federal Rule of Criminal Procedure 43. The defendants argue that Rule 43 requires that a defendant may be removed only if he is physically present at the beginning of jury selection, is seriously disruptive once, is then warned that further disruptive behavior will result in removal, and then persists in misbehavior. As the defendants read the rule, a trial court may not issue an order the day before trial excluding a defendant from the courtroom during trial, as occurred here. Rule 43 builds on a defendant’s constitutional right to be “present at all stages of the trial where his absence might frustrate the fairness of the proceedings.” Faretta v. California, 422 U.S. 806, 819 n. 15, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); United States v. Gibbs, 182 F.3d 408, 436 (6th Cir.1999) (noting that rights protected under Rule 43 are more expansive than those guaranteed by the Constitution). Rule 43(a) provides that unless otherwise allowed by Rules 5 or 10, the defendant must be present at: (1) the initial appearance, the initial arraignment, and the plea; (2) every trial stage, including jury impanelment and the return of the verdict; and (3) sentencing. Rule 43(e) provides for waiver of a defendant’s continued presence under the following circumstances: (1) In General. A defendant who was initially present at trial, or who had pleaded guilty or nolo contendere, waives the right to be present under the following circumstances: (A) when the defendant is voluntarily absent after the trial has begun, regardless of whether the court informed the defendant of an obligation to remain during trial; (B) in a noncapital case, when the defendant is voluntarily absent during sentencing; or (C) when the court warns the defendant that it will remove the defendant from the courtroom for disruptive behavior, but the defendant persists in conduct that justifies removal from the courtroom. If the defendant waives the right to be present under Rule 43(c), the trial may proceed to completion in the defendant’s absence. But the language of Rule 43 does not provide for waiver of the right to be present unless a defendant is “initially present at trial.” This case poses the question of what exactly it means to be “initially present at trial.” In oral argument, the defendants asserted that it means the defendant must be physically present at the moment when the first prospective jurors enter the courtroom (a standard that would not help in a bench trial). We do not read the rule’s language as being quite that precise, given different courts’ varied practices in managing jury selection, especially when a defendant is in custody and must be moved and managed out of the sight and hearing of prospective jurors. Also, we do not read the rule as requiring a district judge facing a long and multi-defendant trial to give every defendant two opportunities to misbehave in front of the prospective jurors in ways that could taint the jurors and prejudice the co-defendants. We conclude, however, that the phrase “initially present at trial” in a jury trial must refer to the- day that jury selection begins, though not to the precise moment that one or more prospective jurors enter the courtroom. See, e.g., Diaz, 223 U.S. at 455, 32 S.Ct. 250 (“In cases of felony our courts, with substantial accord, have regarded [the defendant’s right to be present] as extending to every stage of the trial, inclusive of the empaneling of the jury and the reception of the verdict, and as being scarcely less important to the accused than the right of trial itself’); United States v. Burke, 345 F.3d 416, 422 (6th Cir.2003) (reviewing then-existing law and determining that “trial” for purposes of Rule 43 denoted the time between the em-paneling of the jury and the delivery of the sentence); Bradford, 237 F.3d at 1309-10 (joining “every other circuit to address the issue” in holding that a trial commences under Rule 43 when the jury selection process begins); United States v. Krout, 56 F.3d 643, 646 (5th Cir.1995) (finding for purposes of Rule 43 that trial begins with jury selection and noting that “our research! ] does not reveal a contrary interpretation of the Rule”). As the First Circuit commented, “the concept that a defendant could go through trial proceedings to the point of selecting the entire jury and then, perhaps because he was dissatisfied with the complement thereof, freely depart, does not appeal to us.” United States v. Miller, 463 F.2d 600, 603 (1st Cir.1972) (same). Here, then, trial commenced on the morning of February 6, for it was not until then that the jury selection process began. The district court’s order here, issued the day before trial began, did not comply with the language of Rule 43(c). As the Supreme Court has said, Rule 43 means what it says. See Crosby v. United States, 506 U.S. 255, 261, 113 S.Ct. 748, 122 L.Ed.2d 25 (1993). But Federal Rule of Criminal Procedure 52(a) also means what it says: “Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.” The difference between issuing the order on the day jury selection began and the day before it began was an error that did not affect these defendants’ substantial rights. See Rogers v. United States, 422 U.S. 35, 40, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975) (a violation of Rule 43 “may in some circumstances be harmless error”); Watkins, 983 F.2d at 1419 (applying harmless error standard to defendant’s absence from trial). With the benefit of hindsight and reflection that appellate courts are allowed, we can say it would have been better if the district court had brought the defendants to the courtroom the morning of February 6, before any prospective jurors were present, and asked them again if they wished to reconsider their choices not to attend. Assuming that the defendants had followed their pattern of prior hearings, their expected refusal to promise to behave would have justified their removal and would have complied with Rule 43. Defendants argue that we should not make that assumption. We should assume instead, they argue, that they might have changed their minds the next day if they had been confronted with the immediacy of jury selection. On this record, we are not persuaded. The failure to repeat once more on the first day of trial the already-repeated process did not affect the defendants’ substantial rights. Unlike the defendant in Crosby, who fled before trial commenced, these defendants did not flee or “fail to appear.” See 506 U.S. at 261-62,113 S.Ct. 748. On the day before trial, the defendants had ample warning of the consequences of their behavior. They were repeatedly warned that the trial would go forward without them unless they promised to behave, and they made a knowing and voluntary choice. They were given an opportunity to come to court the morning of trial, but chose not to appear and refused to speak to their attorneys. At any time during the trial, they could have returned to attend the trial. They took none of those opportunities. On this record, the purpose of Rule 43 certainly was served. See, e.g., Cuoco v. United States, 208 F.3d 27, 31-32 (2d Cir.2000) (in context of § 2255 motion arguing ineffective assistance of counsel, commenting that Crosby’s holding is limited to its facts, a defendant’s presence at the inception of trial assures that any waiver is knowing, and presuming that pre-trial waiver is effective if made knowingly and voluntarily); Smith v. Mann, 173 F.3d 73, 76 (2d Cir. 1999) (distinguishing Crosby and Rule 43 from petitioner’s habeas argument that his failure to appear at his trial was not a knowing and voluntary waiver of his constitutional right to be present, explaining “the case before us amply demonstrates that in some situations the requisite knowledge can be conclusively found even if the defendant is not present when the trial begins”). The courtroom door remained open to these defendants on the morning of February 6 and every day thereafter, if only they were willing to promise to behave properly before the jury. The timing of the defendants’ knowing and voluntary waiver of their right to be present did not affect their substantial rights or fail to serve the purpose of protecting their right to attend their trial. In short, the difference between removing these defendants from trial the day before trial began and the day it actually be