Petition for Writ of Certiorari — Tyshaun St. Vallier, Petitioner v. United States

Supreme Court briefDec 8, 2017

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NO.

IN THE UNITED SUPREME COURT

OF THE UNITED STATES

TYSHAUN ST. VALLIER

PETITIONER

Vs.

UNITED STATES OF AMERICA

RESPONDENT (5)

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEAL FOR THE THIRD CIRCUIT

PETITION FOR WRIT OF CERTIORARI

TYSHAUN ST. VALLIER 28648-050

PRO-SE LITIGANT

FCI ASHLAND

P.O. BOX 6001

ASHLAND, KENTUCKY 41105

DEC 18 2011

QUESTIONS PRESENTED

Because most arguments that a defendant make when arguing

their right to be present is disposed of using Federal Rules Of

Criminal Procedure Rule 43, and rarely even reach the more

narrow analysis that is based on the right to be present at a

critical stage. The right to be present has ramifications laid

out by courts using different analysis in many cases the courts

determine whether the defendant was voluntary absent or

involuntary and whether the hearing can be deemed a critical

stage. But when the absence is not just involuntary but when the

defendant was in custody and his absence was solely a mistake

made by the prosecutor, furthermore the counsel for the

defendant waives the defendant's right without his express

consent and the prejudice factor boils down to the fairness of

the entire proceeding, not just the hearing in itself, to avoid

a clear unequal deprivation of a fair proceeding. Is it totally

feasible to avoid a review from the Appeals Court or does this

claim gets disposed of without the purview of a higher court?

The Question Presented is

1. Did the Third Circuit Court of Appeals Err when not

granting COA when counsel waived defendant's appearance at a

pre-trial hearing involving stipulations to prohibit impeachment

evidence of government's cooperating witness, additionally where

involuntary absence was due to the prosecuting attorney admitted

mistake in failing to execute a writ to produce the defendant at

the hearing?

If defendant's Right to Due Process is violated as a result

of counsel's deficient waiver, where the prosecutor's mistake

propelled the defendant's absence at a critical stage, should

the burden shift to the government to prove harmlessness beyond

a reasonable doubt?

LIST OF PARTIES

All Parties appear in the caption of the case on the cover page.

TABLE OF CONTENTS

OPINIONBELOW ........................................................1

STATEMENT OF JURISDICTION ...........................................1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....................2

STATEMENT OF THE CASE ...............................................3

REASONS FOR GRANTING THE WRIT .......................................8

FIRST IMPRESSION UPON THE COURTS ....................................8

IMPORTANCE TO THE PUBLIC ...........................................15

CONCLUSION......................................................... 20

INDEX TO APPENDIXES

APPENDIX A: UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

APPENDIX B: OPINION OF THE DISTRICT COURT

APPENDIX C: ORDER DENYING REHEARING

APPENDIX D: REQUEST FOR EXTENSION OF TIME TO THE SUPREME COURT

APPENDIX E: PRE-TRIAL HEARING

APPENDIX F: SENTENCING HEARING

APPENDIX G: SIXTH AMENDMENT OF THE CONSTITUTION

APPENDIX H: FIFTH AMENDMENT OF THE CONSTITUTION

APPENDIX I: FEDERAL CRIMINAL PROCEDURE RULE 43

TABLE OF AUTHORITIES

Cases

United States v Toliver 330 f.3d 607, 2003 U.S. app. Lexis 11180 (3

Cir.) .....................................................................................................................................................13

United States v Crutcher 405 f. 2d. 239: 1968 U.S app. Lexis 5551 (2d

cir 1968) ...........................................................................................................................................19

United States v Bertoli 40 f 3d 1384, 1397 (3' Cir. 1994) ............................19

United States v Alessandrello...........................................................................................15

Snyder v Massachusetts 78 LED 674, 291 US 97-138 ....................................................9

Kentucky v Stincer, 482 U.S 730, 107 s. Ct. 3658,, 96 1. Ed. 2d 631

(1937) .......................................................................................................................................... passim

Johnson v Zerbst 304 U.S. 458, 464-465, 58 S. Ct. 1019, 1023, 82 1.

Ed. 1461 (1938) ............................................................................................................................... 7

Flanagan v United States 465 U.S 259 1 268, 79 L. Ed 2d 288, 104 S. Ct

1051 (1984) ......................................................................................................................................17

Evans v United states 284 f.2d 393; 1960 app. Lexis 3223; 94 A.L.R 2d

266 (6th cir. 1960) .....................................................................................................................18

Cross v United States 325 f. 2d 629; 117 U.S app d.c 56; 1963 U.S app

lexis3739.........................................................................................................................................12

Brady v United states 397 U.S. 742, 748........................................................................17

Statutes

Federal Rules Of Criminal Procedure Rule 43 ......................................................passim

IN THE UNITED STATES SUPREME COURT

OF THE UNITED STATES PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to

review the judgement below.

OPINION BELOW

The opinion of the United States Court of Appeals for The Third

Circuit appears at Appendix A to the petition and is

unpublished. The opinion of the United States District Court of

New Jersey appears at Appendix B to the petition.

STATEMENT OF JURISDICTION

The date on which the United States Court of Appeals decidedmy

case was April 4, 2017. A timely petition for rehearing was

denied by the United States Court of Appeals on July 10, 2017,

and a copy of the order denying rehearing appears as appendix C.

A Request for an extension of time was filed on 9/29/17 to

Justice Samuel A. Auto and granted with the new filing date

extended to December 7, 2017 and appears as appendix D. The

Jurisdiction of this court is invoked under 28 U.S.0 § 1254 (1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution

provides, in relevant part:

In all criminal cases 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 the assistance of counsel

for his defense. See APPENDIX G

The Fifth Amendment to the United States Constitution

provides, in relevant part:

No person shall be held to answer for a capital. Or otherwise

infamous crime, unless on a presentment or indictment ...nor be

deprived of life, liberty, or property, without due process of

law.... See APPENDIX H

Fed R. Crim. P. 43(b) (3) provides that a defendant need not

be present at a proceeding that involves only a conference or

hearing on a question of law. ...That conclusion follows from

plain text of Rule 43 (b) (3)...See APPENDIX I

STATEMENT OF THE CASE

The Lower courts are deeply divided over whether a pretrial

hearing or conference can ever be considered a critical stage in

perspective of the statutory rule of Fed. R. Crim. P.43 (b) (3)

which provides that a defendant need not be present at a

proceeding that involved only a conference or hearing on a

question of law. On the other hand; the court has identified the

Due Process Clause of the 5th amendment to be wrapped in this

statutory web and encompasses the sixth amendment confrontation

clause to be included in its broad statutory provision. However

the Due Process Clause in itself requires the courts to search

deeper into the entire record not just the title of the

proceeding alone. But never has the courts determined what the

issue will be when an ordinary pretrial hearing turns to

something much more detailed and dealt with circumstances that

surrounded facts only known to the defendant and the witnesses.

Here defendant argues that his. constitutional right to Due

process has been violated and there is no line that

distinctively prohibits the statutory provision in Rule 43 to be

the suppresser of this argument. What happens when the

conference is not a question of law does the lower court use a

statutory provision to dispose of a constitutional claim without

reviewing the context of the hearing. This is exactly what the

lower court has done.

This issue is not academic

in this case and all others

like it the defendant's entitlement to a new trial or at least a

new sentencing lays in the balance. Here petitioner's trial

counsel knew that it was important to discuss some detrimental

stipulations that bore heavily on defendant's chances of

bringing out all the circumstances about his case. The problem

here is that not only was the defendant scheduled for court and

in custody, it was the prosecutor's mistake that caused

defendant's absence. Overall, the entire defendant's right to be

present was waived by counsel before he ever had the chance to

waive his presence. (AP-E p4.)

Trial was scheduled for St. Vallier in an importation of

Cocaine case on April 22, 2009. Two days before picking the jury

a pre-trial hearing was scheduled to commence, counsel for the

St. Vallier informed the A.tJ.S.A and the Judge that she went to

visit her client with the marshals and he was not there to be

consulted. The prosecuting attorney who was responsible for

executing the writ to secure the defendant's presence who was

less than five miles away explained their debacle to the Judge

and defendant's attorney explaining that they will totally take

the blame for not producing the defendant at the hearing. The

Court admonished the AUSA for her actions asking "I mean he

needed to be here regardless right?"... "I just want to make sure,

a hearing or no hearing, there are motions in his case and he's

scheduled to go to trial on Wednesday, he would need to be here

no matter what we do." (AP-E p4. Ln. 4-15)

Immediately The AUSA had requested an agent and an

investigator to pick the defendant up from the county jail so

that he can be present for the hearing, however this did not

cure the situation because the court's by way of counsel's

acknowledgement agreed to proceed in defendant's absence.

Without wasting any moment defendant's counsel decided that it

will be o.k. to proceed in defendant's absence without his

express consent. However counsel admitted to the one and vital

caveat "it's a catch 22" to waive his presence without asking

him to waive his presence but still waived his presence based on

the disclaimer she will limit discussions to pending motions,

voir dire discussions about jury instructions, verdict sheet.

(AP-E p4.

ln. 21

p5. ln. 1-10) But this scope deviated from

the very beginning. Soon as the hearing began the prosecuting

attorney confessed of an "informal" stipulation that counsel and

the government agreed upon that "morning" unbeknownst to the

defendant and wished to memorialize it on record. (AP-E p6. Ln

12 -17) These stipulations consisted of agreement to withhold

impeachment evidence on the only two key witnesses McCombs and

Laroche and evidence that bolstered St. Valuer's theory of the

case. (AP-E p6

9). Defendant arrived for the latter part of

the hearing to witness the officer's testimony and upon closing

the hearing the district attorney requested that the counsel put

on the record that defendant waives his appearance for the nontestimonial portions of the day. Defense counsel quickly

answered that "Mr. St. Valuer waives his presence retroactively

to the time period that he was not in the courtroom". (AP-E p69.

Ln.15-25) Defendant was convicted of all charges, and since

defendant never knew of the stipulations that were memorialized

at the pre-trial hearing, the sentencing phase resulted in the

prosecutor reneging on the pre-trial stipulation. In one

stipulation that was memorialized at the hearing was the

government's disclosure of Giglio material which one of the

witnesses had been relocated in light of a threat "That is

technically a benefit offered to a witness because the

government is of course paying for that witness to be

housed" (Ap-p9 1-14) adding that there are prescribed stipends,

per diems given to witness and family etc.

id. The government

stipulated not to adduce testimony of any threats to a witness

in exchange that the defense will not question their witness

about the government benefits that were given to the witness and

the family. The defendant never knew about these stipulations,

and on the day of sentencing the government despite its

stipulations adduced testimony of the threats to a witness

through the lead case agent. (AP-F p801. ln.23.

p817 ln.8)

Other stipulations were regarding flight, and that the

government will not adduce evidence of petitioner's earlier

flight in turn defense counsel will not cross examine the two

key witness on their flight. Furthermore it was stipulated that

defense counsel must not move into evidence a letter co-written

by the defendant and witnesses that professed his innocence and

requested that a court date be reinstated. (AP-E p7 1-25)

The Third Circuit Court of Appeals has ruled against

providing a certificate of appealability on the issue that

defendant's constitutional rights were violated when his counsel

waived his presence during a critical stage while he was in

custody waiting to be brought into court. When a defendant is in

custody every circuit takes serious precaution when accepting a

waiver of his right to be present, see Johnson v Zerbst 304 U.S.

458, 464-465, 58 s. Ct. 1019, 1023, 82 1. Ed. 1461 (1938). The

waiver provision was just the sub part, where the

constitutionality lies at the substance of the hearing that took

place in his absence as laid out See Kentucky v Stincer, 482 U.S

730, 107 s. Ct. 3658,, 96 1. Ed. 2d 631 (1937). Furthermore

action is necessary in this case at-least to be reviewed by the

Third Circuit of Appeals to maintain fairness and judicial

integrity.

REASONS FOR GRANTING THE WRIT

a. FIRST IMPRESSION UPON THE COURTS

The fact that Fed. R. Crim. P.43 excludes conferences and

hearings, a defendant's right to be present at critical stages

embodies itself in the Due Process Clause of the fifth and

fourteenth amendment, but when a hearing is titled a pre-trial

conference reviewing courts has failed to analyze the claim

under the Due Process Clause. This is because Rule 43 states

that only trial stages can be afforded for the purposes of rule

43. However, many courts have understood the principle and the

Due Process clause espoused in Kentucky v Stincer, 482 U.S 730,

107 s. Ct. 3658, 96 1. Ed. 2d 631 (1937).

and Snyder v

Massachusetts 78 LED 674, 291 US 97-138). However many lower

court's has used the statutory language of Rule 43 as an

exclusive way to prevent the courts to acknowledge the context

of the proceeding not by title but the substance of what

occurred by the record in the absence of the defendant. Even

though rule 43 provide broader protection that the narrow Due

Process rights it still gives the lower courts the headway to

use a statutory provision than the more accountable and narrow

Due Process. Some courts acknowledges the standard-bearer cases

that most prosecutor's adhere to when feasible but many court

are hesitant as some believe the language in Kentucky v Stincer,

482 U.S 730, 107 s. Ct. 3658, 96 1. Ed. 2d 631 (1937).

Snyder

v Massachusetts 78 LED 674, 291 US 97-138 are merely dicta and

does not get into the crux of the right to be present defining

and critical stage. There has absolutely been no litigation in

the context of a hearing that began as a normal pretrial hearing

two days before trial, and changes course right before the

hearing into a hearing that without defendant's presence the

process is thwarted. The pendulum then swings into the realms

solely of a Due process claim. Additionally, when defendant was

in custody and not just prohibited from making the appearance

but the very reason why he couldn't make it lied in the very

hands of the adversary.

In assessing an ineffective assistance

of counsel claim "The ultimate focus of inquiry must be on the

fundamental fairness of the proceedings ... In every case the court

should be concerned with whether ... the result of the particular

proceeding is unreliable because of a breakdown in the

adversarial process that our system counts on to produce just

results."

A decision of this magnitude that does not even get to be

reviewed by a higher court can be a darted flaw in the judicial

system.

The Court Have reviewed similar claims but never has the

Courts reviewed A Right to be present claim that involved a

deliberate mistake on behalf of the adversary, a defendant in

custody, waiver with-out defendant's consent, facts that only

the defendant knew and could not had possibly be factually

disputed properly without defendant's presence. It is simply to

easy for defendant to acknowledge the withholding of impeachment

evidence to not be in his favor and decide on that last day

before trial to plead guilty, or even if defendant was afforded

the chance to not agree to the stipulations, defendant there is

a chance that the witnesses testimony could have been

undermined, where favors / benefits given to a witness

especially shelter could be an incentive to or at least

something the jury would have taken into consideration. All in

all a transformative pretrial hearing that began to settle one

issue but transitioned to a hearing that became critical to the

defendant's outcome by the definition "Critical Stage" and

evidently discussing much more than a question of law.

The Supreme Court has held that the constitutional right to

be present applies not "when presence would be useless, or the

benefit but a shadow," but only "to the extent that a fair and

just hearing would be thwarted by the defendant's absence."

Kentucky v Stincer, 482 U.S 730, 107 s. Ct. 3658, 96 1. Ed. 2d

631 (1937). Two days before picking the jury, the appellant was

not brought to court to defend for himself against evidence in

which only appellant and the two witnesses had direct knowledge

of. Here counsel engaged in stipulations to withhold impeachment

evidence of the only two co-defendants / witnesses that

testified for the government (ECF no. 34 att.13 p.2-5).

Additionally, appellant's sole opportunity to appear on

time was at the mercy of the adversary. Id. Appellant was in

custody at the time in a facility within a few miles of the

court house. The prosecuting attorney was directly responsible

for ordering the writ to retrieve appellant. However the writ

was not ordered on time and resulted in appellant being brought

to the hearing at the end to only witness the last portion of

this hearing. (AP-E p42) Many circuit courts' has ruled on

involuntary absence and the course it takes in the event. See

also the district of Columbia Circuit court decision Cross v

United States 325 f. 2d 629; 117 U.S app d.c 56; 1963 U.S app

lexis 3739 (the court reversed the conviction, holding that

under rule 43, a person in continuous physical custody could not

"voluntarily absent" himself. The district court was required to

at least obtain an on the record statement in open court by

defendant himself, rather than counsel, of the waiver, and the

district court was required to make a determination whether

defendant made an intelligent and competent waiver.) And second

circuit's United States v crutcher 405 f. 2d. 239: 1968 U.S app.

Lexis 5551 (2d Cir. 1968) (remanding for hearing to determine if

he made a knowing waiver of the right to be present at the

impaneling of the jury. If defendant did not waive the right

then a new trial had to be granted.) However neither circuit nor

this court has determined when the involuntary absence is a

direct result of negligence by the adversary. And what happens

when the absence is even more detrimental than a statutory error

versus a constitutional error the record details that counsel

then waived the rights of the defendant to be present at this

hearing without his consent. Id at 69. When the court requested

an explanation to the hearing Ms. Liebesman counsel for

appellant had already determined that she will go forth without

petitioner's consent and agreed to clearly waiving petitioner's

presence. Id. The district court expressed its concern but never

remedied it. Id. AP-E p4. ln.21-25, p5.Ln. 1-9. Again after the

hearing was concluded the record again provides the support in

clear details that the defendant was not informed of his

constitutional right to be present when he finally arrived at

the hearing. Id. "A defendant's constitutional right to be

present at every stage of his or her criminal proceeding is

grounded in the confrontation clause of the sixth and the due

process clause of the fifth amendment." See United States v

Toliver 330 f.3d 607, 2003 U.S. app. Lexis 11180 (3rd Cir.)

Quoting United States v Gagnon, 470 U.S. 522 526, 84 1. Ed. 2d

486, 105 s. Ct § 2253(c) (2).the COA statute permits the

issuance of a COA only where a petitioner has made "a

substantial showing of the denial of a constitutional right" §

2253 (c) (2). In reality its only dicta A criminal defendant has a

right to be present at all critical stages of the trial. In

Toliver it expressly agreed that a violation of rule 43 of the

fed rule of crim. Procedure also compromises the statutory and

constitutional rights. The court basically began to take the

analysis under a standard for constitutional errors. No court

has analyzed what happens when the prospective testimony of the

two main witnesses is at issue. Witness impeachment evidence was

the highlight of the hearing but never was made known to the

defendant that these stipulations actually took place. Counsel

and the assistant United States attorney that morning engaged in

an informal agreement. The agreement entailed that the

government will forego the request to admit a conscious of guilt

instruction as to the flight in which appellant had previously

pled guilty to and that counsel will forego cross-examining the

lead witness as to his own flight in trying to avoid prosecution

for the same case. Additionally, Liebesman engaged in an

agreement not to admit a letter co-written by the government's

lead witness and appellant. In this letter defendant and codefendant requested that the court reinstate his bail and he

just wanted a fair day in trial. The government and Liebesman

entered into more stipulations concerning the government other

star witness Laroche. Counsel agreed on record to not crossexamine Laroche on receiving a government favor in which the

government helped Laroche retrieve a new residence. Liebesman

agreed to stay away from that favor, in exchange that the

government will not rebut. The due process clause guarantees the

defendant a right at those stages of trial when the defendant's

absence "might frustrate the fairness of the proceedings". Fed.

Rule of Cr. Procedure 43. Supreme Court has stated "that a

defendant only has a constitutional right to be present at

stages of the trial where fundamental fairness might be thwarted

by his absence" United States v Alessandrello 637 f.2d 131 (3

cir) (quoting Faretta v California 422 U.S. 806, 816, 95 s. Ct.

2255, 2531 45 1. Ed. 2d 562 (1971).

IMPORTANCE TO THE PUBLIC

CONCERNING FAIR PRACTICES IN THE COURT

The record has softly recognized the constitutionality of

the defendant's right to be present. The lower court decided

that "In any rate even without that waiver, the portion of the

hearing in question held prior to petitioner's arrival, which is

discussed above, dealt specifically with questions and legal

issues raised by counsel rather than any testimony, and thus

avoided crossing into areas where Petitioner's presence would

have been helpful, let alone vital." (AP-B p40

41). But this

decision does not take into account the government's culpability

in defendant's absence while he was in custody. Here not only

the record has been alluded to without correctly citing the

record. The only scope that was taken by mere language was the

scope outline in Fed Cr. P. Rule 43 and not the analysis that is

distinguished in Snyder v Massachusetts id. Additionally by

waiving petitioner's right to be present it will defeat the

purpose if that is the case. Here the record reflects that

appellant arrived at the end of the hearing to witness testimony

by customs border protection officer Erraez. At the end of the

hearing the A.U.S.A requested the judge to have Liebesman put on

record that defendant waived his appearance for the non-

testimonial, non-hearing portions of the day. Never was the

defendant afforded a chance to know what right he was waiving.

Here the court inquired to counsel asking her whether

petitioner waives his presence to the portions of the hearing

where he was not present without petitioner having the time to

answer or having been informed what constitutional right he was

waiving, counsel answered immediately without appellants

consent, again stating "St. Valuer waives his presence

retroactively to the time period that he was not in the

courtroom. "Waivers of constitutional rights not only must be

voluntary but must be knowing, intelligent acts done with

sufficient awareness of the relevant circumstances and likely

consequences" Brady v United states 397 U.S. 742, 748 (1970

whether the waiver of a known right has been intelligently made

"depends in each case, upon the particular facts and

circumstances surrounding that case, including the background

experience, and conduct of the accused. Johnson v Zerbst 304

U.S. 458, 464-465, 58 S. Ct. 1019, 1023, 82 1. Ed. 1461 (1938

see Diaz v united states 223 U.S. 442, 56 1. Ed 500, 32 sup. Ct.

Rep. 250, ann. Cas. 1913c 1138 (when the accused is in custody

or on trial for his life he is incapable of waiving the right to

be present at any stage of the proceeding.) In the District

Court Opinion. It stated that St. Valuer did not prove

prejudice. The opening point to this decision is the notion of

whether the prejudice prong should be the deciding factor. For

instance The Supreme Court has stated. "Obtaining reversal for

violation of such a right does not require a showing of

prejudice to the defense, since the right reflects

constitutional protection of the defendant's free choice

independent of concern for the objective fairness of the

proceeding" See Flanagan v United States 465 U.S 259, 268, 79 L.

Ed 2d 288, 104 S. Ct 1051 (1984). However the record does not

reflect that counsel ever reread the transcript of the

proceeding or ever spoke to the defendant concerning what took

place at the hearing. Defendant believes that the burden shall

be on the government, who should prove beyond a reasonable

possibility that appellant's absence did not prejudice him. The

absolute burden that the third circuit holds when the appellant

makes the argument setting out a Fed. R. Crim. P.43 violation.

Here what is unique is that the neglect of the government was

the cause of the absence from the hearing. The court's analysis

under Fed. R. Crim. P.43 alone is not absolute when so many

variables that has taken place resulting in the defendant's

absence. However, if the court found that counsel's waiver was

deficient at this particular stage, the analysis should not

solely be on the defendant to prove prejudice alone, but many

courts have been skeptical when the adversary had been the

impetus a violation of a constitutional right.. In Toliver the

government had to prove harmlessness beyond a reasonable

possibility that the district court's error prejudiced the

outcome of Toliver's trial". United States v Toliver 330 f.3d at

614, 2003 U.S. app. Lexis 11180 (3 rd cir.) See also Evans v

United states 284 f.2d 393; 1960 app. Lexis 3223; 94 A.L.R 2d

266 (6th cir. 1960) "In a felony case a defendant is required to

be present at every stage of the trial except where he

voluntarily absents himself. Rule 43 federal rules of criminal

procedure, 18 USCS ... in order to constitute a waiver, there must

be a voluntarily relinquishment of a known right." (The court

reversed the judgement and remanded the case to the district

court for further proceedings). Also in United States v Crutcher

405 f. 2d. 239: 1968 U.S app. Lexis 5551 (2d cir 1968)

(Remanding for hearing to determine if he made a knowing waiver

of the right to be present at the impaneling of the jury. If

defendant did not waive the right then a new trial had to be

granted.) In the matter of finding that defendant has not made a

valid waiver of a known right the burden shall shift to the

government to prove beyond a reasonable probability that the

defendant was not prejudiced See United States v Bertoli 40 £ 3d

1384, 1397 (3 Cir. 1994). The problem here is that the

Government admitted responsibility for the defendant's

absence.

Defendants Absence was involuntary

Counsel waived defendant's presence

District Court Judge went forward with hearing based on waiver

under the impression that counsel and government's counsel

will only discuss vior dire, jury instructions, and pending

motions.

The hearing transitioned to testimonial stipulations

concerning the two key witnesses and impeachment evidence

being withheld without defendant's consent or ever attaining

knowledge of the substance of impeachment evidence that was

stipulated to or withheld.

During Sentencing the government breached the stipulation

agreement, defendant had no knowledge that the counsel had

entered into these impeachment stipulations in exchange that

the government will not put forth evidence.

Considering all the factual circumstances at least this case

provides the impetus to be further reviewed by the Appeals

Court. In any context this case provides the perfect vehicle to

address the pure language of rule 43, being used to foreclose

arguments based solely on the due process clause of the

Amendment and the 5th Amendment.

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