Opposition Brief — Crosby v. United States

MICHAEL CROSBY, PETITIONER

Vv.

; UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

KENNETH W. STARR

ROBERT S. MUELLER, III

J. DOUGLAS WILSON

omen PRESENTED

Whether petitioner could be tried in his absence after he

knowingly and voluntarily failed to appear for trial

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

No. 91-6194

MICHAEL CROSBY, PETITIONER

+.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. A1-A15) is

reported at 917 F.2d 362.

JURISDICTION

The judgment of the court of appeals was entered on Septem-

ber 30, 1991.” The petition for a writ of certiorari was filed

/ fhe opinion of the court of appeals originally was filed

on October 16, 1990. Pet. App. Al. In that opinion, the court

remanded to the district court for consideration of an issue

unrelated to the issue presented by this petition, but the court

of appeals retained jurisdiction over the case. Id. at Al5.

While the case was pending in the district court on remand, the

court of appeals denied a petition for rehearing with suggestion

(continued...)

a And ape: a an

on October 21, 1991. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

STATEMENT

After a jury trial in the United States District Court for

the District of Minnesota, petitioner was convicted on 25 counts

of mail fraud, in violation of 18 U.S.C. 1341. He was sentenced

to 20 years' imprisonment, to be followed by five years' proba-

tion. Pet. App. A3. He was also ordered to make restitution in

the amount of $240,035. Pet. 3. The court of appeals affirmed.

Pet. App. Al1-Al15.

1. Petitioner and co-defendants Martin Cheatham, James

Sannes, and Jack Cunningham devised a fraudulent scheme for

selling silver medallions through the mail and by phone.

Pursuant to the scheme, purchasers of the medallions were falsely

told that a portion of the proceeds would be used to fund a

memorial to veterans and were assured that the medallions would

increase in value. Ultimately, 412 people bought 5,900 medal-

lions for $550,000. Only about 400 medallions, however, were

actually delivered to the purchasers.”

”(...continued)

for rehearing en banc. Id. at Cl. On September 30, 1991, the

court issued an order affirming the judgment of the district

court "nunc pro tunc to January 24, 1991." Id. at Bl. While

that order is somewhat ambiguous, we believe that it is

appropriate in calculating the timeliness of the petition to

consider the judgment of the court of appeals to have been

entered on September 30, 1991.

/ The evidence at petitioner's trial is described in the

opinion of the court of appeals affirming the convictions of co-

defendants Cheatham and Cunningham. United States v. Cheatham,

899 F.2d 747, 748-750 (8th Cir. 1990).

Pd ns 4. eee ee eo ee ; ;

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2. On August 15, 1988, petitioner appeared for a pretrial

conference, at which the district court set trial for October 12,

1988. On September 12, 1988, the clerk sent a notice to all

counsel confirming the date of trial. On September 30, 1988,

petitioner attended another pretrial conference, at which the

court again advised the parties of the October 12 trial date. On

October 7, 1988, petitioner appeared in court for a motions

hearing, during which the court made yet another reference to the

October 12 trial date. Pet. App. A2; Gov't C.A. Br. 6-7.

Although petitioner's counsel and his three co-defendants

appeared for trial on October 12, 1988, petitioner failed to

appear. The district court issued a warrant for petitioner's

arrest and delayed the start of trial. United States Marshals

attempting to execute the warrant were unable to locate peti-

tioner. The Marshals reported to the court that petitioner

appeared to have abandoned his residence. Pet. App. A2; Gov't

C.A. Br. 7.

On October 14, 1988, the district court issued an order

delaying trial until October 17, forfeiting petitioner's $100,000

bond, and finding that petitioner had “deliberately, voluntarily,

knowingly, and without justification failed to be present at the

designated time and place for the trial of the action." Pet.

App. A2-A3. In the order, the court also found that there was no

reasonable probability that petitioner could be located or that

the trial could be rescheduled with petitioner in attendance.

Pet. App. A3. The court noted that the government intended to

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call 83 witnesses trom all over the United States and Canada and

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to introduce more than 400 exhibits. The court accordingly found

that rescheduling the trial or holding a separate trial for

petitioner would impose a substantial burden on the government

and the court. Based on its findings, the court held that

petitioner had “voluntarily waived his constitutional right to be

present during the trial" and that the “public interest in

proceeding with the trial in the absence of * * * [petitioner]

outweigh{ed] the interest of [petitioner] to be present during

the conduct of the trial." Ibid.

Trial was held from October 17 through November 18, 1988, in

petitioner's absence. Pet. App. A3. Petitioner was arrested in

Florida on May 11, 1989. Gov't C.A. Br. 9.

3. The court of appeals affirmed. Pet. App. Al-Al5. It

rejected petitioner's argument that Fed. R. Crim. P. 43 prohibits

a court from holding a trial after the defendant has absconded

except when the defendant is present at the outset of the trial.

Id. at A3-A5.” The court determined that "the defendant waives

’ ped. R. Crim. P. 43 provides in relevant part:

(a) Presence Required. The defendant shall be

present at the arraignment, at the time of the plea, at

every stage of the trial including the impaneling of

the jury and the return of the verdict, and at the

imposition of sentence, except as otherwise provided.

(b) Continued Presence Not Required. The further

progress of the trial to and including the return of

the verdict shall not be prevented and the defendant

shall be considered to have waived the right to be

present whenever a defendant, initially present,

(continued...)

i) 4

his Rule 43 right to be present during trial when he voluntarily

absents himself from the courtroom." Jd. at AS. The court held

that, in light of petitioner's voluntary failure to appear, the

district court's efforts to locate petitioner, the number of

witnesses, and the difficulty of reassembling them, the district

court had not abused its discretion by holding trial in peti-

tioner's absence. Id. at A8-a9.¥

ARGUMENT

Petitioner contends (Pet. 3-10) that the district court

violated his rights under the Constitution and Fed. R. Crim. P.

43 by holding trial in his absence. The court of appeals

correctly rejected that contention, and its decision does not

conflict with any decision of this Court or any other court of

appeals. Further review is therefore unwarranted.

Although a criminal defendant has a right to be present at

all stages of the trial, that right may be waived. In Diaz v.

United States, 223 U.S. 442, 445, 454-459 (1912), this Court held

that such a waiver occurred when a defendant who had appeared at

the start of the trial voluntarily absented himself from later

”(...continued)

(1) is voluntarily absent after the trial has

commenced (whether or not the defendant has been in-

formed by the court of the rema

the trial) * * #, cbligation to in during

*“ The court of appeals also rejected

titioner' 1

that the district court erred in refusing Ay replace aA Je

yd ener counsel five days before trial and in condition-

ng petitioner's probation on the payment of restitution to his

victims. Pet. App. A9-Al5. Pet does renew those

Claims in this Court. es —

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proceedings. In Taylor v. United States, 414 U.S. 17, 19-20

(1973), the Court reaffirmed its holding in Diaz and emphasized

that “mere voluntary absence from * * * trial" may constitute an

“effective waiver."

Contrary to petitioner's contention (Pet. 4-9), this Court's

decisions in Diaz and Taylor did not turn upon the fact that the

defendants in those cases were present at the commencement of

their trials. In Diaz, the Court quoted with approval the

reasoning of a court of appeals decision that had concluded that

a defendant may waive the right to be present at trial by volun-

tarily failing to appear:

The question is one of broad public policy,

whether an accused person, placed upon trial for crime

and protected by all the safeguards with which the

humanity of our present criminal law sedulously sur-

rounds him, can with impunity defy the processes of

that law, paralyze the proceedings of the courts and

juries and turn them into a solemn farce * * *,

Neither in criminal nor in civil cases will the law

allow a person to take advantage of his own wrong. And

yet this would be precisely what it would do if it

permitted an escape from prison, or an absconding while

at large on bail, during the pendency of a trial before

a jury, to operate as a shield.

223 U.S. at 458 (quoting Falk v. United States, 15 U.S. App. D.c.

446, 460-461 (1899), cert. denied, 181 U.S. 618 (1901)). In

Taylor, the Court similarly reasoned that “the governmental

prerogative to proceed with a trial cannot be defeated by conduct

of the accused that prevents the trial from going forward.” 414

U.S. at 20 (quoting Illinois v. Allen, 397 U.S. 337, 349 (1970)

(Brennan, J., concurring)).

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The reasoning of Diaz and Taylor fully applies when, as in

this case, the defendant voluntarily and knowingly fails to

appear for the commencement of the trial. A defendant who fails

to attend even the start of his trial demonstrates at least as

much disregard for the judicial system as a defendant who is

present at the start of trial but later fails to appear. In

either situation, suspending the trial would reward such egre-

gious conduct by preventing a trial “until the accused person

himself should be pleased to permit it." Diaz v. United States,

223 U.S. at 457 (quoting Falk v. United States, 15 U.S. App. D.C.

at 454). This Court's decisions in Diaz and Taylor make clear

that the Constitution does not require such a result.

Nor is that pesuit required under Fed. R. Crim. P. 43.

While Rule 43(a) recognizes the defendant's right to be present

throughout the trial, Rule 43(b) makes it clear that the defen-

dant may waive that right. Rule 43(b) provides that "the prog-

ress of {a) trial * * * shall not be prevented" when a defen-

dant, “initially present, * * * is voluntarily absent after the

trial has commenced." The Rule states that under those

circumstances, “the defendant shall be considered to have waived

the right to be present." Fed. R. Crim. P. 43(b). Petitioner

argues (Pet. 6) that Rule 43(b), by implication, forbids the

conduct of a trial in absentia when a defendant is not initially

present for the trial but, instead, absconds prior to the trial's

commencement. The Rule, however, should not be read in that

fashion. s the court of appeals recognized, Rule 43(b) was

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intended merely to restate the holding in Diaz. Pet. App. A5

(citing Advisory Committee note on Fed. R. Crim. P. 43). Thus,

the Rule addresses the situation of a defendant who initially

appears for trial, but later fails to appear, because that was

the situation before the Court in Diaz. By providing for a

waiver in that situation, the Rule was not intended to preclude a

waiver in other situations. As the court of appeals correctly

concluded, Pet. App. A3-A6, Rule 43(b) does not prevent the court

from determining that a waiver has occurred when a defendant who

has been arraigned and released on bail knowingly and voluntarily

fails to show up for trial at all.

Every other court of appeals to address the issue has like-

wise concluded that a defendant's knowing and voluntary failure

to appear for trial may constitute a waiver of the right to be

present for the trial. See United States v. Houtchens, 926 F.2d

824, 826-827 (9th Cir. 1991); United States v. Sanchez, 790 F.2d

245, 248-252 (2d Cir.), cert. denied, 479 U.S. 989 (1986); United

States v. Crews, 695 F.2d 519, 520-521 (llth Cir. 1983); United

States v. Peterson, 524 F.2d 167, 184 (4th Cir. 1975), cert.

denied, 423 U.S. 1088 (1976); Government of the Virgin Islands v.

Brown, 507 F.2d 186, 189 (3d Cir. 1975); United States v.

Tortora, 464 §.2d 1202, 1208 (2d Cir.), cert. denied, 409 U.S.

1063 (1972).

The decisions cited by petitioner (Pet. 6 n.2) are not to

the conttary. United States v. Hernandez, 842 F.2d 82, 84 (5th

Cir. 1988); Government of the Virgin Islands v. George, 680 F.2d

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13, 14-15 (3d Cir. 1982); United States v. Miller, 463 F.2d 600,

602-603 (1st Cir.), cert. denied, 409 U.S. 956 (1972); United :

States v. Garcia-Turino, 458 F.2d 1345, 1346 (9th Cir.), cert.

denied, 409 U.S. 951 (1972); Pearson v. United States, 325 F.2d

625, 626-627 (D.C. Cir. 1963); and Parker v. United States, 184

F.2d 488, 490 (4th Cir. 1950), each involved a criminal defendant

who voluntarily absented himself from trial proceedings after

having appeared for the commencement of trial; in each case, the

court applied Fed. R. Crim. P. 43 to uphold the conduct of a

trial in the defendant's absence. In Cureton v. United States, 7

396 F.2d 671 (D.C. Cir. 1968), the court held that under Rule 43

a trial may be held in the defendant's absence when the defendant

absconds after the start of the trial, if the defendant's absence

is knowing and voluntary; the court remanded, however, for

further proceedings on the issue of whether the defendant's

absence in that case was knowing and voluntary. In Cross v.

United States, 325 F.2d 629, 631-632 (D.C. Cir. 1963), the court

reversed a conviction, holding -- on facts quite different from

those of the instant case -- that the evidence was insufficient

to establish that the defendant had waived his right to be

present throughout the trial. Finally, United States v. Hudson,

313 F. Supp. 422, 426-427 (D. Del. 1970), did not concern review

of a conviction following a trial in absentia. Rather, it con-

cerned a petition by sureties on a bail bond to vacate an order

forfeiting the bond. In response to the petitioners’ argument

that they should not be penalized for the defendant's failure to

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appear for trial because the trial could have been held in the

defendant's absence, the district court in Hudson suggested that

the defendant could not have been tried in his absence under Rule

43 because he was not initially present for the trial. Id. at

426. That suggestion was dictum, however, because the court went

on to reject the petitioners’ argument as “completely irrelevant"

to the validity of the order of forfeiture. Id. at 427.

* * * * &

Petitioner does not challenge the determination by both

courts below that he knew when the trial was scheduled to com-

mence and that he voluntarily failed to appear on that date.

Under those circumstances, the courts correctly concluded that he

had waived his right to be present at the trial.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KENNETH W. STARR

solicit 5

ROBERT S. MUELLER, III

Assistant Attorney General

J. DOUGLAS WILSON

Attorney

JANUARY 1992

EN ee Se ee ee RS A

O

IN THE SUPREME COURT OF THE unrTep SESE VED

OCTOBER TERM, 1991 HAND DELIVERED

JAN 21 1992

MICHAEL CROSBY, PETITIONER SUPREME cOnecUERK

Vv NO. 91-6194

ee ee ee ee ee ee ee

UNITED STATES OF AMERICA

CERTIFICATE OF SERVICE

It is hereby certified that all parties required to be served

have been served copies of the BRIEF FOR THE UNITED STATES IN

OPPOSITION by mail on January 21, 1992.

MICHAEL J. CROSBY

#88239-012

P.O. BOX 3007

TERMINAL ISLAND, CA 90731

Solicitor General

January 21, 1992

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