A federal appellate panel took Chief U.S. District Judge K. Michael Moore to task for resuming a criminal trial without the defendant and one of her attorneys — but affirmed the conviction anyway.

The U.S. Court of Appeals for the Eleventh Circuit cited “blatant constitutional violations” when Moore allowed the trial to continue when the defendant, the defense counsel or both were out of the courtroom.

The panel upheld the conviction of Lourdes Margarita Garcia,, concluding the mistake didn't change the outcome of the trial.

But Circuit Judge Stanley Marcus called the case “troubling” in the opinion, as did Judge Charles Wilson in a separate concurrence. Wilson also said Moore did the same thing in less egregious fashion in an en banc case decided last year and likely will do it again. U.S. District Judge James Graham of the Southern District of Ohio, sitting by designation, also concurred.

Garcia was represented on appeal by Federal Public Defender Michael Caruso in Miami.

“As you may expect, Dr. Garcia is disappointed with the court's decision,” Caruso said Monday by email. “We believe the court failed to uphold her basic constitutional rights to be present and have a lawyer assist her during trial. Notwithstanding this setback, Dr. Garcia will ask the entire 11th Circuit and, if necessary, the Supreme Court to review her case.”

The office of U.S. Attorney Ariana Orshan had no comment by deadline.

Garcia, a medical doctor in her native Dominican Republic and a physician's assistant in Miami and Coral Gables clinics she owned with her husband, was convicted of conspiracy to defraud the IRS, filing false tax returns and underpaying the tax bill.

Her defense was that she left all financial dealings up to her husband, Angel Garcia, who died before the trial. Her son and daughter said the same thing. She was sentenced to four years and three months in prison and ordered to pay the IRS more than $455,000.

While an IRS agent was testifying against Garcia, the judge recessed for lunch. After lunch, courthouse security personnel detained Garcia at the checkpoint due to a false alarm mistakenly indicating she was carrying a cellphone, Wilson said.

After a few minutes, defense attorney Sabrina Puglisi of Puglisi Law in Miami went to the courtroom, and co-counsel Ashley Litwin of Seitles & Litwin in Miami remained behind with Garcia, Wilson said. By the time Puglisi reached the courtroom, the judge had resumed the trial without her, and the IRS agent was already testifying again.

Puglisi missed about three minutes of testimony, while Garcia and Litwin missed 10 minutes, according to the court. But the defense attorneys did not object when they returned or the next day when the prosecutor brought up the incident. At that point, the judge said Garcia “didn't have to be here if she didn't want to be. I mean, everybody else seemed to be able to make it on time.”

The judge went on to say that any prejudice caused by Garcia's absence is “self-inflicted,” adding, “She manufactured the problem herself; I don't know how she can fault anybody else for it.”

After the conviction, Garcia's attorneys asked for a new trial based on the judge resuming testimony without them, which he denied.

The panel concluded the government presented conclusive evidence against Garcia in the 10-day trial. But the panel made clear its concerns about the trial judge.

“This is a troubling case,” Marcus said. “There can be no doubt — and the government does not contest the point — that constitutional error occurred. It is also clear that the error was plain and obvious. The decision to allow the government to introduce inculpatory evidence while both the defendant and her lawyer were absent for three to ten minutes in a trial that lasted more than 49 hours violated the defendant's right to counsel, her right to confront the witnesses arrayed against her and her right to be present at trial.”

But Marcus concluded the panel had no choice but to affirm the convictions.

“There can be no question that Garcia failed to preserve the errors at trial even though she had ample opportunity to do so,” Marcus said. “She was given every chance to object and to secure some remedial relief from the trial court but expressly declined to act. As a consequence, under well-established law we must review the constitutional violations that occurred for plain error, not for harmlessness beyond a reasonable doubt.”

In his separate concurrence, Wilson noted it wasn't the first time Moore has made this mistake.

“This troubling case presents a familiar factual scenario—a district court judge permitted a criminal trial to resume, and inculpatory evidence to be taken, without defense counsel present,” Wilson said. “We recently confronted a nearly identical appeal from the same district judge.”

In the previous case, Wilson said, “We determined that such constitutional violations can — and usually will — be harmless.”

But Wilson added the facts in Garcia's case “are even more egregious than those in Roy because, here, the defendant wasn't in the courtroom either.

“Despite the deserted defense table, the district court judge prompted the government to continue its direct examination of an important witness,” Wilson said. “Nonetheless, we are bound to apply the framework established in Roy — harmless error beyond a reasonable doubt.”

Because of the precedent, Wilson concurred but offered an object lesson tied to the Roy case.

“Recognizing a structural error and remanding Roy for constitutionally compliant proceedings would have prevented this district court judge from continuing his indisputably unconstitutional practice of conducting criminal trials in the absence of defendants or their counsel,” Wilson said. “Such a decision would have incentivized the judge to [forgo] his unconstitutional courtroom policies; conversely, however, our decision to employ the harmless error analysis effectively sanctioned these policies, as that analysis provides no mechanism for future defendants unlucky enough to sit in this particular judge's courtroom to challenge the constitutional violations that will inevitably continue to occur.”