Respondents Brief — Crosby v. United States

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MAY 21 1992

GAGE OF [HE CLERK

No. 91-6194

Iu the Supreme Court of the United

OCTOBER TERM, 1991

MICHAEL CROSBY, PETITIONER

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

WILLIAM C, BRYSON

Deputy Solicitor General

RICHARD H. SEAMON

Assistant to the Solicitor General

MICHAEL E. O’NEILL

Attorney

Department of Justice

Washington, D.C. 20530

202) 514-2217

QUESTION PRESENTED

Whether a federal court may try a criminal de-

fendant in his absence when the defendant knowingly

and voluntarily fails to appear for trial.

(1)

TABLE OF CONTENTS

Surieaewoen ..................... ees

Constitutional provisions and Federal Rule of Criminal

ee __ceuseubenacussnnaceessessnss

I nesspunnsppnasninscenness

Argument:

Petitioner validly waived his right to be present

when he knowingly and voluntarily failed to appear

for trial .... i etuiounmnnnessens

A defendant can waive his constitutional right

to be present at his trial by electing not to

a enrsrmmmeseuenssonesece

Rule 43 of the Federal Rules of Criminal Proce-

dure does not prohibit a court from trying a de-

fendant who knowingly and voluntarily fails to

a ceeinreireneecsess

This Court should not adopt a rule barring the

trial of a defendant in absentia, even when the

defendant knowingly and voluntarily fails to

EEE

The District Court properly found that peti-

tioner knowingly and voluntarily absented him-

self from trial

Conclusion _.................. es

Cases:

TABLE OF AUTHORITIES

Arizona V. Hunt, 408 F.2d 1086 (6th Cir. 1969)...

Barnett v. State, 512 A.2d 1071 (Md. 1986) .........

Brewer V. Raines, 670 F.2d 117 (9th Cir. 1982) ....

Commonwealth Vv. Felton, 307 A.2d 51 (Pa. 1973),

cert. denied, 415 U.S. 984 (1974) |

Connecticut Nat'l Bank v. Germain, 112 Ss. © Ct.

aad v

Cases—Continued : Page

Cureton Vv. United States, 396 F.2d 671 (D.C. Cir. Cases—Continued : Page

TITIID .ssinsinashcaneensisiteniesielncaudetiteaiiatcsiid asia inate elaine 24 United States v. Crews, 695 F.2d 519 (11th Cir.

Diaz v. United States, 223 U.S. 442 (1912)..8, 9, 11, 12,

13, 14, 17, 18

| En ee 21-22, 26

BIOID ccscnsccavsesrnssnsseseeneemmmnianate

Falk v. United States, 15 App. D.C. 446 (1899), 15

cert. denied, 181 U.S. 618 (1901) 2. 9,13,14 United States vy. Edmonson, No. 90-3189 (10th

Frank v. Mangum, 237 U.S. 309 (1915) ................ 17 Cm, Blagy 6, BGG). ----aannnn-noneneensnesenercecenocesose 21

Government of the Virgin Islands v. Brown, 507 United States v. Fitzpatrick, 437 F.2d 19 (2d Cir.

F.2d 186 (3d Cir. 1975) 0... Eile: BPE 21, 22, 23 BOTO) _.....-.-.--.---ceneeenceecnrnsnrnsesesesnsesncenesesansesnssnnsesasenens 15

Hopt v. Utah, 110 U.S. 574 (1884) oo. 18 United States v. Gagnon, 470 U.S. 522 (1985) _.... 11,15

Hunter v. Commonwealth, 409 S.E.2d 483 (Va. Ct. United States v. Hernandez, 873 F.2d 516 (2d Cir.

Bs CD ccaiiiesiittianscediictalst clivaies iatiiced es ucnmbiaiaias 22 TD cern navn conncnnecenncesecassnssonsnavesnenesenmasensepniecssnmnsensesass 24

Illinois v. Allen, 397 U.S. 337 (1970) ....... 9, 11, 12, 13, 14, United States v. Houtchens, 926 F.2d 824 (9th Cir.

17, 20, 23, 25 1991) . .. 21,23

Kentucky v. Stincer, 482 U.S. 730 (1987) .............. 20 United States v. Hudson, 313 F. “Supp. “422 (D.

Lewis v. United States, 146 U.S. 370 (1892) ....... 18 . Del. 1970) .......-------n-eseoesceceessnssees ceneseeceneeneeneenseees 20, 21

McCaffrey Vv. State, 577 N.E.2d 617 (Ind. Ct. App. United States v. Lochan, 674 F.2d 960 (1st Cir.

DNR Ee San RY oy Ri oes Ae PaO 22 1982) . oan ” 23

Murphy V. State, 555 N.E.2d 127 (Ind. 1990) ........ 22 United States v. Mera, 921 F.2d 18 (2d Cir.

Snyder Vv. Massachusetts, 291 U.S. 97 (1934) —..11, 15, 17 1990) .. sani .. 25, 26

Stack v. Boyle, 342 U.S. 1 (1951) -....cccccccccceeeneeeee 14 United States v. Moore, 466 F.2d 547 (3d ‘Cir.

State v. DeWeese, 816 P.2d 1 (Wash, 1991) —........ 22 1972), cert. denied, 409 U.S. 1111 (1973) ... 15

State v. Galloway, 817 P.2d 1124 (Kan. Ct. App. United States v. Muzevsky, 760 F.2d 83 (4th Cir.

I 22 EL EN Ase SESE NRT > Pk Dae Me 21

State v. Jackson, 351 S.E.2d 167 (S.C. 1986)... = 22 United States Vv. Pastor, 557 F.2d 930 (2d Cir.

State v. Kirk, 699 S.W.2d 814 (Tenn. Crim. App. wn... EEE IEE SE TEE 21

1985), cert. denied, 475 U.S. 1023 (1986) 22 United States v. Peterson, 524 F.2d 167 (4th Cir.

State v. Zavala, 666 P.2d 456 (Ariz. 1983) ........ 22 1975), certs. denied, 423 U.S. 1088 and 424 U.S.

Tacon V. Arizona, 410 U.S. 351 (1973) 0000000... 19 925 (1976) ........... stenancnithsnermeceneiemenantipocaasatsnsensiil 21, 22, 23

Taylor v. United States, 414 U.S. 17 (1973) ...9, 12, 18, United States v. Powell, 611 F.2d 41 (4th Cir.

14, 23 1979) .. piccinsandineinennnedinnteiatiiniaiiinebannnniiuiitabiaiinns 21

Thomas V. State, 586 So. 2d 282 (Ala. Crim. App. United States V. Sanchez, 790 F.2d 245 (2d Cir. ),

(| RETESET I ONESIES, SS I 22 cert. denied, 479 U.S. 989 (1986) 2.00000. 24

United States V. Alikpo, 944 F.2d 206 (5th Cir. United States Vv. Schocket, 753 F.2d 336 (4th Cir.

I 24 ——=E—EyyEE 21

United States v. Barton, 647 F.2d 224 (2d Cir.), l'nited States Vv. Tortora, 464 F.2d 1202 (24 Cir. ),

cert. denied, 454 U.S. 857 (1981) —....000000.. _ 21, 26 cert. denied, 409 U.S. 1063 (1972) 21, 23, 24, 25

United States Vv. Camacho, 955 F.2d 950 (4th Cir. United States Vv. Wright, 932 F.2d 868 (10th Cir.),

1992) _ ia RO 24 certs. denied, 112 S. Ct. 428 and 450 (1991) 21, 23

United States v. Cheatham, 899 F.2d 747 (8th White v. Illinois, 112 8. Ct. 736 (1992) .............--.-..-.. 20

ERE. REE eee eet Se camer 4

Constitution, statutes and rules: Page

U.S. Const. :

Amend. V (Due Process Clause) .................. 2,8,11,14

Amend. VI (Confrontation Clause) . _2, 8, 11, 12,14

a . Lee Oe RR ET OY DOL 3, 4

INERT SED es = os Sree as Oe AS 4

rT NN ne eae ee 14, 25

Fed. R. Crim. P.:

Rule 43, 18 U.S.C. at 1982 (1946) 000. 18

7 i aS ......2, 8, 9, 15, 16, 17, 18, 19, 20, 21

Advisory Committee Note on 1974

Amendment, 18 U.S.C. App. at 821

gS EEE FRAME LEN, Bk GA Eee 19

Advisory Committee Notes, 18 U.S.C. at

1982 (1946) ............. icubeeicdactiniantiadaiiiaddaiiiebalh 17

Rule 43(a) _.......... ccebimeniliniicaduadaiggaaitiddaiagsataesasdiadiaes 2,15

ERIN a Re eI Re mc re Mase CP Oe 2,16

I eerie 2,23

RSIS Se ra le at eae MTC aah 3,15

Miscellaneous:

1 J. Chitty, Practical Treatise on the Criminal

I 12

Cohen, Trial in Absentia Re-examined, 40 Tenn.

I nn I i 14

Committee on Rules of Practice and Procedure,

Judicial Conference of the U.S., Preliminary

Draft of Proposed Amendments to the Federal

Rules of Criminal Procedure, ete. (Jan. 1973),

microformed on CIS No. CM-4213 (Congres-

ee ls ND eeiceincscictnccnalllstratinncceeiniictetietesicnen 19

Goldin, Presence of the Defendant in Rendition

of the Verdict in Felony Cases, 16 Colum. L.

I 11

2 W. Holdsworth, A History of the English Law:

(4th ed. 1936) SON 5 Sede ee One Sr TO 11

(5th ed. 1942) | Se is ese 12

T. Plucknett, A Concise History of the Common

Law (5th ed. 1956) . NE A Bessa aE Mr 12

VII

Miscellaneous—Continued : Page

2 F. Pollock & F. Maitland, The History of English

Law (2d ed. 1968 reprint) 2.2.2... .ccsnceeoeee 11

Starkey, Trial in Absentia, 53 St. John’s L. Rev.

REST RISE HS Seen. eS aT a 23

M. Wilken & N. Triffin, Drafting History of the

Federal Rules of Criminal Procedure (1991) :

Rae SR ACRE Ee eae Sood i 16

EEE Tee ee cee SP e eon EL IN 16

I tics techehaaa cet indhnidenind canieieetehti a Sikhs 16

ILI sutedapncesnbearessasinensacaibatneasticieasiseaiabn tients ieneatiniatcian 16

Iu the Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-6194

MICHAEL CROSBY, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the court of appeals (J.A. 52-69) is

reported at 917 F.2d 362.

JURISDICTION

The judgment of the court of appeals was entered

on September 30, 1991.' The petition for a writ of

! The opinion of the court of appeals was filed on October

16, 1990. J.A. 52. In that opinion, the court remanded to the

district court for consideration of an issue unrelated to the

issue on which this Court granted certiorari, but the court of

appeals retained jurisdiction over the case. J.A. 69. While

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

court of appeals denied a petition for rehearing with sugges-

tion for rehearing en banc. J.A. 70. On September 30, 1991,

(1)

certiorari was filed on October 21, 1991, and was

granted on March 2, 1992. J.A. 72. The jurisdiction

of this Court rests on 28 U.S.C, 1254(1).

CONSTITUTIONAL PROVISIONS AND FEDERAL RULE

OF CRIMINAL PROCEDURE INVOLVED

The Due Process Clause of the Fifth Amendment

provides: “nor shall any person * * * be deprived of

life, liberty, or property, without due process of law.”’

The Confrontation Clause of the Sixth Amendment

provides: “In all criminal prosecutions, the accused

shall enjoy the right to * * * be confronted with the

witnesses against him.”

Rule 43 of the Federal Rules of Criminal Proce

dure provides:

(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 im-

paneling of the jury and the return of the ver-

dict, and at the imposition of sentence, except as

otherwise provided by this rule.

(b) Continued Presence Not Required. The fur-

ther progress of the trial to and including the re-

turn of the verdict shall not be prevented and the

defendant shall be considered to have waived the

right to be present whenever a defendant, ini-

tially present,

(1) is voluntarily absent after the trial has

commenced (whether or not the defendant has

been informed by the court of the obligation to

remain during the trial), or

the court of appeals issued an order affirming the judgment

of the district court “nunc pro tune to January 24, 1991.”

J.A. 71. While that order is somewhat ambiguous, we believe

that it is appropriate in calculating the timeliness of the peti-

tion to consider the judgment of the court of appeals to have

been entered on September 30, 1991.

(2) after being warned by the court that dis-

ruptive conduct will cause the removal of the de-

fendant from the courtroom, persists in conduct

which is such as to justify exclusion from the

courtroom.

not be present in the following situations:

(1) A corporation may appear by counsel for

all purposes.

(2) In prosecutions for offenses punishable by

fine or by imprisonment for not more than one

year or both, the court, with the written consent

of the defendant, may permit arraignment, plea,

trial, and imposition of sentence in the defend-

ant’s absence.

(3) At a conference or argument upon a ques-

tion of law.

(4) At a reduction of sentence under Rule 35.

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. Co-defendants Martin Cheatham and

Jack Cunningham were also convicted; co-defendant

James Sannes was acquitted. Petitioner was sen-

tenced to 20 years’ imprisonment, to be followed by

five years’ probation. J.A. 5. He was also ordered

to make restitution in the amount of $240,035. J.A.

6. The court of appeals affirmed. J.A. 52-69.

1. Petitioner and his co-defendants devised a

fraudulent scheme for selling a variety of products,

- including silver medallions, through the mail and by

telephone. The medallions were marketed as “Vets

for Vets commemorative medallions,” and purchasers

were falsely told that a portion of the sale proceeds

would fund a memorial to war veterans. See United

States v. Cheatham, 899 F.2d 747, 748-750 (8th

Cir. 1990) (upholding convictions of co-defendants

Cheatham and Cunningham). Purchasers were also

assured that the medallions would dramatically in-

crease in value. /d. at 749. Between 1986 and 1988,

the defendants sold about 5900 medallions for ap-

proximately $550,000. Only about 400 medallions,

however, were actually delivered to the purchasers.

Id. at 749-750.

On April 20, 1988, a grand jury in the District of

Minnesota returned an indictment charging petitioner

and his co-defendants with multiple violations of the

mail fraud statutes, 18 U.S.C. 1341 and 1342. After

a detention hearing on June 23, 1988, petitioner

posted a $100,000 bond and was released on bail.

J.A. 1, 12; Pet. C.A. Br. Al4.

Petitioner appeared in person for a pretrial con-

ference on August 15, 1988, at which the district

court told the parties that trial was set for October

12, 1988. J.A. 41. A month later, the clerk sent a

notice to all counsel confirming that the trial would

begin at 9:30 a.m. on October 12, 1988. J.A. 42.

Petitioner personally attended another pretrial con-

ference, on September 30, 1988, at which the court

again advised the parties of the October 12 trial

date. At that conference, counsel for petitioner told

the court that he did not object to the trial date. J.A.

2, 42.

On October 7, 1988, five days before the trial was

to begin, petitioner personally appeared in court a

third time for a motions hearing. J.A. 42.° Peti-

2 Although the district court did not expressiy find that

petitioner was present at the October 7, 1988, hearing, J.A.

42, it is clear from the transcript of that hearing that peti-

tioner asked the court for permission to travel to

California, claiming that he needed to retrieve some

personal records to use in preparing his defense.

10/7/88 Tr. 3, 8, 15-20. The court advised petitioner

that it would not postpone the October 12 trial date

to accommodate petitioner’s belated request. J.A. 24,

26. Petitioner assured the court that he would return

in two or three days. J.A. 24. The court then granted

petitioner’s request to leave the State. J.A. 28-30.

2. Petitioner’s attorney and his three co-defendants

were present for trial on the morning of October 12,

1988, but petitioner failed to appear. Petitioner’s

atuorney told the court that he had not been able to

reach petitioner by telephone that morning, but that

he had spoken with him the day before and expected

him to appear. J.A. 8, 9-10. The court issued a

bench warrant for petitioner’s arrest and dispatched

a United States Marshal to petitioner’s residence.

J.A. 11-12.

The court reconvened later that day. The Marshal

reported that the two deputies who visited petitioner’s

residence that day had found it “cleaned out.” J.A.

19. The Marshal also said that a neighbor had told

the deputies that on the previous night petitioner had

backed his car into the garage and appeared to be

packing things into the trunk. /bid. The court ad-

vised the Marshal to contact petitioner’s family in

an effort to locate him. The court then asked the

parties to state their views on what should be done.

Petitioner’s counsel objected to a trial in absentia,

1 R. 35, 53, and petitioner’s co-defendants moved for

a continuance until petitioner could be located, 1 R.

tioner did personally attend. See, e.g., 10/7/88 Tr. 2, 30.

Petitioner acknowledges that he was present at the hearing.

Pet. Br. 4.

41-44, 54-55. The government stated that it wanted

to try the case as soon as possible, because the gov-

ernment had assembled a large number of witnesses,

many of whom were elderly and from out of State.

J.A. 23-24. The court continued the trial until Mon-

day, October 17, 1988, but reserved decision on

whether trial would go forward if petitioner had not

appeared by then. J.A. 20, 35, 56.

On October 13, 1988, the court held a bond for-

feiture hearing. At the hearing, the Marshal advised

the court that the Marshals Service was still unable

to locate petitioner. Petitioner’s father, brother, and

bondsman appeared at the hearing and told the court

that they did not know where petitioner was. J.A. 43.

In a subsequent written order, the court granted

the government’s motion to proceed with the trial of

petitioner and his co-defendants in petitioner’s ab-

sence. J.A. 48-51. The court found that petitioner

“had complete, full, and adequate notice of the

charges and proceedings against him,” including

notice of the date on which the trial was scheduled

to begin; that petitioner “deliberately, voluntarily,

knowingly, and without justification failed to be pres-

ent [at] the designated time and place for trial”;

that there was “no reasonable probability that [peti-

tioner] could be located shortly or that the trial could

be rescheduled with [petitioner] in attendance’’; that

“the rescheduling of this trial would present extreme

difficulty to the government, to the witnesses for the

government, to defense counsel, and to the court”;

and that requiring the government to try petitioner

separately from his co-defendants would “impose a

substantial burden upon the government, on the wit-

nesses, and on the court.” J.A. 48, 50. In connection

with the last finding, the court noted that “[t]he

government has listed 83 potential witnesses and in

excess, of 400 proposed exhibits for the trial,” and

that many of the witnesses were “elderly or infirm.”

J.A. 50-51. Based upon those findings, the court con-

cluded that petitioner ‘‘voluntarily waived his consti-

tutional right to be present during the trial,” and

that “[t]he public interest in proceeding with the

trial in the absence of [petitioner] outweighs the in-

terest of [petitioner] to be present during the conduct

of the trial.” J.A. 51.

3. The trial began on October 17, 1988. On No-

vember 18, 1988, the jury returned a verdict finding

petitioner guilty on 25 counts of mail fraud. J.A.

54-55. Although petitioner was absent throughout,

his counsel actively participated in the trial, present-

ing an opening statement and closing argument, con-

ducting voir dire, introducing evidence and cross-

examining witnesses, making objections, and arguing

motions.’ Sentencing was postponed pending petition-

er’s arrest.

Approximately seven months later, on June 14,

1989, petitioner was arrested in Florida. He was

subsequently sentenced to four consecutive five-year

terms of imprisonment on 22 of the counts, to be

followed by five years’ probation. The district court

suspended sentencing on the three remaining counts,

conditioned on petitioner’s payment of $550,000 resti-

tution to the victims of his scheme. J.A. 55. On re-

mand following appeal, the district court reduced the

amount of restitution that petitioner was required to

pay to $240,035. J.A. 6, 67-69.

* See, e.g., 3 R. 122-127; 4 R. 251-258, 339-358; 5 R. 438,

567-574; 6 R. 657-677; 7 R. 820-829; 8 R. 1088-1093, 1141-

1143; 10 R. 1525-1557; 11 R. 1688-1726; 12 R. 1877-1878;

13 R. 1907-1927, 1933-1938, 1946-1956, 1960-1975, 1989-1991 ;

14 R. 2000-2016, 2026-2040; 15 R. 2060-2088, 2135-2141, 2165;

17 R. 2327-2344.

4. The court of appeals affirmed petitioner’s con-

victions. J.A. 52-69. It rejected petitioner’s argu-

ment that Fed. R. Crim. P. 43 permits a defendant to

be tried in absentia only when the defendant ab-

sents himself after initially appearing for trial. The

court determined that Rule 43 addressed the situation

of a defendant who absconds after initially appearing

for trial because that was the factual situation be-

fore this Court in Diaz v. United States, 223 U.S.

442 (1912). The court stated that “Rule 43 does no

more than restate the holding in Diaz” and does not

preclude the trial in absentia of a defendant who ab-

sconds prior to trial. J.A. 57.

The court adopted the “analysis suggested by the

Second and Fourth Circuits” for determining when a

district court has discretion to try a defendant who

has voluntarily absconded. J.A. 61. Under that

analysis, the court said that district courts should con-

sider, among other factors, “the likelihood that the

trial can take place with the defendant present, the

difficulty of rescheduling, and the burden on the gov-

ernment and inconvenience to jurors of having to un-

dertake two trials * * * in a multiple defendant case.”

Ibid. Considering those factors in light of the dis-

trict court’s findings, the court of appeals “ha[d] no

difficulty” in concluding that “[petitioner] waived his

right to be present at trial and that the district court

acted within its discretion in trying [petitioner] in

absentia.” Ibid.

SUMMARY OF ARGUMENT

A. The Constitution does not prohibit a court from

trying a defendant who absconds prior to trial. This

Court’s decisions make clear that, while a criminal

defendant has a right under the Sixth Amendment

and the Due Process Clause to be present at trial,

that right may be waived. The defendant may waive

the right to be present not only by expressly consent-

ing to a continuation of trial in his absence, see Diaz

v. United States, 223 U.S. 442 (1912), but also by

“mere voluntary absence from his trial,” Taylor v.

United States, 414 U.S. 17, 19 (1973) (per curiam),

and by other types of misconduct, see J/linois y. Allen,

397 U.S. 337 (1970). The reasoning of this Court’s

decisions holding that a defendant may waive the

right to be present is fully applicable in the context of

this case. Those decisions make clear that the Con-

stitution does not protect conduct by an accused that

is calculated to prevent a trial from occurring “until

the accused person himself should be pleased to per-

mit it.” Diaz, 223 U.S. at 457 (quoting Falk vy.

United States, 15 App. D.C. 446, 454 (1899), cert.

denied, 181 U.S. 618 (1901)). A defendant who

knows when his trial is to begin and deliberately fails

to appear for it demonstrates total disregard for the

judicial system. The Constitution does not require a

court in that situation to postpone the trial until the

defendant chooses to attend.

B. Rule 43 of the Federal Rules of Criminal! Proce-

dure likewise does not prohibit a court from trying

a defendant in his absence when the defendant know-

ingly and voluntarily fails to appear for trial. The

Rule simply does not address the case of a defendant

who willfully fails to appear for trial. Nor does the

Rule by implication forbid a court from finding a

waiver of the right to be present at trial in that situa-

tion. Instead, the Rule addresses several narrower

issues, including: (1) whether the defendant is re-

quired to attend his own trial (he is); (2) whether

his voluntary absence after the commencement cf the

trial prevents the court from continuing with the trial

(it does not); and (3) whether he may be excluded

from the courtroom for disruptive behavior during the

trial (he may). It is not reasonable to conclude that

because the Rule recognizes a waiver of the right to

be present in two particular settings, it must be read

to prohibit a court from finding a waiver in any other

case, including the case of a defendant who never

appears for trial at all. Because the Rule does nr

prohibit a waiver in that setting, a court should ve

free to apply traditional waiver principles in light of

the competing interests at stake.

C. This Court should not adopt the rule urged by

petitioner—that even though a defendant knowingly

and voluntarily fails to appear for trial, he may not

be tried in absentia. Such a rule would draw a sharp

and unjustified distinction between a defendant who

absconds shortly after the start of trial and one who

fails to show up for trial at all. The lower federa!

courts have correctly adopted the same approach in

both situations, holding that a defendant may be tried

in his absence when his absence is knowing and vol-

untary, and when postponing the trial would impose

a significant burden on the other parties, the wit-

nesses, and the court. That approach fully protects a

defendant’s right to be present at trial, while also

protecting the judicial process from manipulation by

defendants who place a high premium on avoiding

a trial.

D. Petitioner was properly tried in absentia. The

district court found (and petitioner does not dispute)

that petitioner had actual knowledge of the date on

which his trial was to begin, and that he deliberately

failed to appear. The court further found that post-

poning petitioner’s trial would cause significant hard-

ship to the government, the numerous witnesses called

to testify, and the court. Based on those findings, the

court properly concluded that petitioner had waived

his right to be present at his trial and that it was ap-

propriate to conduct the trial in petitioner’s absence.

ARGUMENT

PETITIONER VALIDLY WAIVED HIS RIGHT TO BE

PRESENT WHEN HE KNOWINGLY AND VOLUN-

TARILY FAILED TO APPEAR FOR TRIAL

A. A Defendant Can Waive His Constitutional Right To

Be Present At His Trial By Electing Not To Appear

The “constitutional right to presence” is rooted in

both the Confrontation Clause of the Sixth Amend-

ment and the Due Process Clause. United States v.

Gagnon, 470 U.S. 522, 526 (1985) (per curiam) ;

Illinois vy. Allen, 397 U.S. 337, 338 (1970). In Sny-

der v. Massachusetts, 291 U.S. 97, 105-106 (1934),

the Court held that a criminal defendant has a right

to be present at any trial proceeding for which “his

presence has a relation, reasonably substantial, to the

fulness of his opportunity to defend against the

charge.” In cases involving felony charges, this Court

has described the right to be present at trial as

“scarcely less important to the accused than the right

of trial itself.” Diaz v. United States, 223 U.S. 442,

455 (1912).'

*The right of a criminal defendant to be present at his

trial derives from early Anglo-Saxon law, under which tri-

bunals refused to enter judgment on a complaint unless the

accused was physically present. 2 W. Holdsworth, A History

of the English Law 105 (4th ed. 1936); 2 F. Pollock & F.

Maitland, The History of English Law 594 (2d ed. 1968 re-

print) ; Goldin, Presence of the Defendant in Rendition of the

Verdict in Felony Cases, 16 Colum. L. Rev. 18, 18 (1916).

After trial by jury succeeded earlier forms of trial, the right

of presence was retained, being viewed as necessary to the

court’s jurisdiction. 2 W. Holdsworth, supra, at 105. An

Like the right to a trial, however, the constitutional

right to presence may be waived. In Diaz, the Court

held that a defendant waived his right to be present

during trial by expressly consenting to a continuation

of the trial in his absence. 223 U.S. at 453-459. The

Court began its analysis with the observation that

the Sixth Amendment right of confrontation (like the

Philippine statutory equivalent at issue in that case)

“is in the nature of a privilege extended to the ac-

cused, rather than a restriction upon him * * * and

that he is free to assert it or to waive it, as to him

may seem advantageous.” Jd. at 450. In Taylor v.

Uvited States, 414 U.S. 17, 19-20 (1973) (per

curiam), the Court held that, even if the defendant

has not given express consent to conducting the trial

in his absence, “mere voluntary absence from * * *

trial” may constitute an “effective[] waive[r]” of

the right to be present. And in IJllinois vy. Allen, 397

U.S. 337, 343 (1970), the Court made clear that, even

when a defendant insists on being present, he may

be excluded from the courtroom if he behaves so dis-

ruptively as to prevent the trial from proceeding. Al-

though this Court’s decisions in Diaz, Taylor, and

accused who voluntarily absented himself before trial was

declared an “outlaw.” 2 W. Holdsworth, A History of the

English Law 604-605 (5th ed. 1942). In most felony cases,

a declaration of outlawry “amount[ed] to a conviction of the

crime of which the defendant [was] indicted, as much as if

he had been actually found guilty by the verdict of a jury.”

1 J. Chitty, Practical Treatise on the Criminal Law 365

(1847) : T. Plucknett, A Concise History of the Common Law

431 (5th ed. 1956). An outlaw, once apprehended, was jailed,

he was subject to execution, and he forfeited all of his prop-

erty. 1 J. Chitty, supra, at 365; Moreover, until at least the

mid-14th century, an outlaw could “lawfully be killed by any-

one who happened to meet him.” Jd. at 366; see W. Holds-

worth, supra, at 605.

Allen did not involve a defendant who deliberately

failed to appear even for the beginning of his trial,

the reasoning of those decisions leads to the conclu-

sion that a waiver of the right to be present may oc-

cur in that context.

The decisions in Diaz, Taylor, and Allen were

based upon the principle that a criminal defendant

should not be permitted to defeat a trial by his own

misconduct. Thus, the Diez Court, quoting from an

earlier court of appeals decision, stated:

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 surrounds him, can with impunity

defy the processes of that law, paralyze the pro-

ceedings of [the] courts and juries and turn

them into a solemn farce * * *. Neither in crim-

inal 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 absconding from the juris-

diction while at large on bail, during the pen-

dency of a trial before a jury, to operate as a

shield.

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

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 may not be defeated by conduct of the accused

that prevents the trial from going forward.” 414

U.S. at 20 (quoting //linois vy. Allen, 397 U.S. at 349

(Brennan, J., concurring)). In Allen, the Court re-

jected the notion that a criminal defendant’s right to

he present extended so far as to “permit[] [the de-

‘endant] by his disruptive conduct indefinitely to

avoid being tried on the charges brought against

him.” 397 U.S. at 346; see also id. at 345 (a court

may imprison a disruptive defendant for contempt

and discontinue the trial, but the court should “guard

against allowing a defendant to profit from his own

wrong” by “elect[ing] to spend a prolonged period in

confinement for contempt in the hope that adverse

witnesses might be unavailable after a lapse of

time”).

The principle that an accused should not, by his

misconduct, be permitted to prevent a trial on the

charges against him is directly applicable in the pres-

ent context. A defendant has the duty both to appear

for and remain present throughout trial. See 18

U.S.C. 3146; Taylor, 414 U.S. at 20 (citing Stack v.

Boyle, 342 U.S. 1, 4-5 (1951) ); see also Cohen, Trial

in Absentia Re-examined, 40 Tenn. L. Rev. 155, 156

(1973) (distinguishing criminal defendant’s “right

of presence,” which is “well-accepted,” from a “right

of absence,” which is “generally unaccepted”). Re-

quiring the court to order an open-ended postpone-

ment of trial would reward the defendant’s miscon-

duct by preventing a trial “until the accused person

himself should be pleased to permit it.” Diaz, 223

U.S. at 457 (quoting Falk, 15 App. D.C. at 454).

This Court’s decisions in Diaz, Taylor, and Allen make

clear that the Constitution does not require such a

result.

In short, both the Sixth Amendement right to con-

frontation and the due process right to be present at

trial are subject to waiver. The Confrontation Clause

merely ensures that the defendant has the right to

confront witnesses if he chooses; it does not require

that he exercise that right. And the Due Process

Clause protects the defendant’s right to be present

only to the extent of ensuring him a “ful[l] * * * op-

portunity to defend against the charge[s].” Gagnon,

470 U.S. at 526 (quoting Snyder v. Massachusetts,

291 U.S. at 105-106). Due process is not offended

when the defendant deliberately forgoes that oppor-

tunity.

B. Rule 43 Of The Federal Rules Of Criminal Procedure

Does Not Prohibit A Court From Trying A Defendant

Who Knowingly And Voluntarily Fails To Appear For

Trial

Petitioner’s principal argument is that, under Rule -

43 of the Federal Rules of Criminal Procedure, a

court may not try a defendant in absentia unless the

defendant was present for the beginning of the trial.

We recognize, of course, that the Rule does not au-

thorize such a trial in absentia, but neither does the

Rule prohibit it. The Rule is simply silent with re-

spect to a court’s options when a defendant volun-

tarily and knowingly fails to appear for trial at all.

Rule 43 provides that a defendant is “required” to

be present “at the arraignment, at the time of the

plea, [and] at every stage of the tria\ 1. R. Crim.

P. 43(a); it also sets forth certain ci: _istances in

which the defendant’s presence is “not required,” Fed.

R. Crim. P. 43(c). Those provisions make clear, for

example, that the defendant has an obligation to be

present at trial; he may not “exercise” his right to be

present by refusing to attend. See, e.g., United States

v. Durham, 587 F.2d 799 (5th Cir. 1979); United

States v. Moore, 466 F.2d 547, 548 (3d Cir. 1972),

cert. denied, 409 U.S. 1111 (1973); United States v.

Fitzpatrick, 437 F.2d 19, 27 (2d Cir. 1970).°

‘It appears that the drafters of Rule 43 were concerned

that the Rule not be read to give a criminal defendant the

freedom to choose whether to appear at his trial or not. Early

drafts of the Rule referred to iinie defendant’s “right to be

Although Rule 43 clearly acknowledges the defend-

ant’s right to be present at trial, it makes only one

express reference to that right. That reference is

found in part (b) of the Rule, which provides that

the right may be deemed waived “whenever a defend-

ant, initially present, * * * is voluntarily absent after

the trial has commenced,” and whenever the defend-

ant, after being warned, engages in conduct that dis-

rupts the trial. The Rule does not expressly address

whether a defendant may also be deemed to have

waived the right to be present by knowingly and vol-

untarily failing to appear even for the commencement

of his trial.

Petitioner ultimately acknowledges that his position

is based not on the express provisions of Rule 43, but

on the maxim expressio unius est exclusio alterius.

Pet. Br. 25. Petitioner argues that since Rule 45

expressly provides for a waiver when the defendant

absconds once trial has started, it implicitly precludes

a finding of waiver when the defendant absconds be-

fore trial has begun. Pet. Br. 26. The problem with

that argument is that Rule 43 does not purport to

contain a comprehensive listing of the circumstances

under which the right to be present may be waived.

It is therefore neither surprising nor significant that

present” at trial. See 1 M. Wilken & N. Triffin, Drafting

History of the Federal Rules of Criminal Procedure 57 (1991)

(hereinafter Drafting History]. In the final report of the

Advisory Committee, however, the language stating that

“lt]}he defendant has the right to be present” was replaced by

language stating that “[t]he defendant snall be present.” 7

Drafting History 69. That revision may have been prompted

by comments voicing concern that the earlier formulation

could be read to allow defendants to exercise their “right” in

a manner that would defeat orderly trial procedures. See 2

Drafting History 235; 3 Drafting History 511.

the Rules does not address the question whether a

defendant may be tried in absentia if he fails to

appear for trial at all. Cf. Connecticut Nat’l Bank

v. Germain, 112 S. Ct. 1146, 1148-1150 (1992) (re-

jecting statutory interpretation based on negative

implication).

From the outset, the principal provisions of Rule

43 have consisted of a codification of this Court’s

decisions on the obligation and right of the defendant

to be present at trial. The Advisory Committee Notes

to the original version of Rule 43 make clear that

both the provision requiring the defendant to be pres-

ent and the provision authorizing a finding of a

waiver after the commencement of the trial are “re-

statement[s] of existing law.” Notes of Advisory

Committee on Rules, 18 U.S.C. at 1982 (1946). It

is therefore appropriate in construing the Rule to

look to the “existing law,” as this Court had de-

fined it. :

When Rule 43 was adopted in 1945, it was well

established that a defendant’s right to be present at

trial could “be lost by consent or at times even by

misconduct.” Snyder v. Massachusetts, 291 U.S. at

106. The Court had “expressly rejected’ the “broad

dicta” in early decisions suggesting that the right

could never be waived. Illinois v. Allen, 397 U.S. at

342 (citing Diaz v. United States, 223 U.S. 442, 453

(1912)); see also Frank v. Mangum, 237 U.S. 309,

338-343 (1915) (defendant in capital case waived

right to be present when verdict was returned).

In Diaz, the Court applied that principle of waiver

by holding that, although the defendant had a right

under applicable Philippine laws to be present at all

stages of his trial, he validly waived that right by

voluntarily absenting himself after trial began. /d.

at 455. The holding in Diaz was later codified in the

provision of Rule 43 that “[i]n prosecutions for of-

fenses not punishable by death, the defendant’s volun-

tary absence after the trial has been commenced in

his presence shall not prevent continuing the trial to

and including the return of the verdict.” 18 U.S.C.

at 1982 (1946).

Petitioner acknowledges (Pet. Br. 14-16) that Rule

43 was meant to codify the Court’s decision in Diaz,

and that the Rule should be read in light of that de-

cision. He argues, however, that Diaz stands for the

proposition that a waiver of the right to be present

can never be found when a defendant absconds before

his trial begins. See Pet. Br. 15-16 (Diaz applied “a

clear-cut rule * * * that a trial actually pending be-

fore a jury may proceed as to an absent defendant

only if he was initially present’). Yet, nothing in

Diaz suggests that a defendant may be tried im

absentia only if he absconds after a trial begins,

and not if he absconds prior to trial. Nor is any

such suggestion made in the decisions cited in Diaz.

Those decisions, like Diaz itself, simply upheld the

convictions of defendants who were absent during

part of their trials and did not address the question

of the validity of trying an absent defendant who had

‘absconded prior to trial. See Diaz, 223 U.S. at 455-

456.

Indeed, aside from language in several 19th-century

decisions suggesting that a defendant’s right to be

present at trial can never be waived, see, e.g., Lewis

v. United States, 146 U.S. 370, 372 (1892); Hopt v.

Utah, 110 U.S. 574, 579 (1884), we are unaware of

any federal case decided prior to the adoption of Rule

43 holding that a defendant who absconds prior to

trial cannot be tried in absentia. Nor has our research

revealed any federal decisions expressly approving

trial in absentia in that situation. In short, the ques-

tion presented in this case had seldom, if ever, arisen.

The important point is that there was no common law

rule prohibiting trial in absentia of a defendant who

absconded prior to trial. Since Rule 43 was intended

to restate existing law, it should not be construed as

adopting such a prohibition.*

C. This Court Should Not Adopt A Rule Barring The

Trial Of A Defendant Jn Absentia, Even When The

Defendant Knowingly And Voluntarily Fails To Ap-

pear For Trial

Apart from the provisions of Rule 43, petitioner

urges this Court to adopt a rule prohibiting the trial

*In 1974, Rule 43 was amended, again for the purpose of

codifying the result of one of this Court’s decisions, i.e., “to

reflect /llinois v. Allen.” Advisory Committee Note on 1974

Amendment, 18 U.S.C. App. at 821 (1988). As amended, Rule

43 expressly authorizes the court to exclude a disruptive

defendant from the courtroom. The 1974 amendment did not

address the question presented here, but an earlier amendment

proposed by the Advisory Committee in January 1973 would

have done so. The 1973 Advisory Committee proposal stated

that a defendant “shall be considered to have waived his

right to be present whenever * * * a defendant, who has

personally entered a plea to the charge and has been per-

sonally advised when the trial is to commence, voluntarily,

knowingly, and without justification, fails to be present at

the designated time and place for trial.” Committee on Rules

of Practice and Procedure, Judicial Conference of the U.S.,

Preliminary Draft of Proposed Amendments to the Federal

Rules of Criminal Procedure, ete. 32 (Jan. 1973), micro-

formed on CIS No. CM-4213 (Congressional Info. Serv.). It

is not clear why the 1973 proposal was rejected, although the

Committee may have chosen simply to leave the issue for

further development in the courts. That seems particularly

likely in light of this Courts’ disposition of Tacon v. Arizona,

410 U.S. 351 (1973) (per curiam). That case was expected to

decide the question whether the Constitution permits a trial

in absentia, but the Court left that question open when it dis-

missed the writ as improvidently granted because the issue

had not been preserved below.

in absentia of a defendant who deliberately fails to

appear for trial. Pet. Br. 11, 29-30, Petitioner con-

tends that, even if that rule is not required by the

Constitution, it is compelled by “the high value which

the American justice system places on having a de-

fendant present at his trial,” id. at 24. The rule

petitioner proposes, however, would unjustifiably

treat defendants who abscond prior to trial differ-

ently from defendants who abscond after the trial has

begun. The lower courts have correctly applied the

same approach in both situations, and that approach

fully protects the defendant’s right to be present at

trial.

We recognize the importance of the defendant's

presence at his trial. The presence of the defendant,

and his concomitant ability to confront the witnesses

against him and assist in his defense, help preserve

the integrity of the factfinding process. See /llinois

y. Allen, 397 U.S. at 347 (“Constitutional power to

bring an accused to trial is fundamental to a scheme

of ‘ordered liberty’ and prerequisite to social justice

and peace.”) (Brennan, J., concurring); see also

White v. Illinois, 112 S. Ct. 736, 743 (1992); Ken-

tucky v. Stincer, 482 U.S. 730, 736, 745 (1987).

Those considerations, however, apply with the same

force whether the defendant absconds prior to trial

or after the trial begins. To hold that a waiver may

occur only in the latter situation would create a

perverse incentive for defendants contemplating flight

to do so at the earliest opportunity.

As petitioner acknowledges, Pet. Br. 18 n.6, no

court has construed either Rule 43 or the Constitution

to require reversal of the conviction of a defendant

who deliberately failed to appear for trial and was

tried in absentia.’ On the contrary, every court of

7 Petitioner cites (Pet. Br. 18 n.6) United States v. Hudson,

313 F. Supp. 422 (D. Del. 1970), as suggesting that a defend-

appeals to consider the issue has held that a defend-

ant who knowingly and voluntarily absconds prior to

trial may be tried in his absence.* So, too, a majority

ant who absconds prior to trial may not be tried in absentia.

Hudson, however, did not involve a trial in absentia, but was

a petition by sureties on a bail bond to vacate an order for-

feiting the bond. In response to the sureties’ argument that

they should not be penalized for the defendant’s failure to

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

defendant’s absence, the district court suggested that the

defendant could not have been tried in his absence under Rule

43 because he was not present at the commencement of the

trial. /d. at 426. That suggestion was dictum, however, be-

cause the court went on to reject the sureties’ argument as

“completely irrelevant” to the validity of the forfeiture order.

Id. at 427.

. Petitioner seeks to explain the absence of case law support-

ing his position by asserting that no appealable order results

from a trial court’s decision not to hold a trial in the defend-

ant’s absence. As we note below, however, there have been

many occasions when district courts have tried defendants

who absconded before trial, and every court of appeals that

has considered the issue has upheld the practice.

2 United States v. Lochan, 674 F.2d 960, 963, 967-968 (1st

Cir. 1982) ; United States v. Mera, 921 F.2d 18, 20-21 (2d Cir.

1990) ; United States v. Sanchez, 790 F.2d 245, 249 (2d Cir.),

cert. denied, 479 U.S. 989 (1986); United States v. Barton,

647 F.2d 224, 238-239 (2d Cir.), cert. denied, 454 U.S. 857

(1981) ; United States v. Pastor, 557 F.2d 930, 933-939 (2d

Cir. 1977); United States v. Tortora, 464 F.2d 1202, 1209-

1210 (2d Cir.), cert. denied, 409 U.S. 1063 (1972) ; Govern-

ment of the Virgin Islands v. Brown, 507 F.2d 186, 189 (3d

Cir. 1975) ; United States v. Schocket, 753 F.2d 336, 340 (4th

Cir. 1985) ; United States v. Muzevsky, 760 F.2d 83, 84 (4th

Cir. 1985) ; United States v. Powell, 611 F.2d 41, 42 (4th Cir.

1979) ; United States v. Peterson, 524 F.2d 167, 184 (4th Cir.

1975), certs. denied, 423 U.S. 1088 and 424 U.S. 925 (1976);

Arizona V. Hunt, 408 F.2d 1086, 1095-1096 (6th Cir. 1969) ;

United States v. Houtchens, 926 F.2d 824, 826-827 (9th Cir.

1991) ; Brewer v. Raines, 670 F.2d 117, 119 (9th Cir. 1982) ;

United States v. Edmonson, No. 90-3189 (10th Cir. May 6,

of the state courts to address the question have held

that a defendant who absents himself before trial

waives his right to be present.’

Those decisions recognize that there are no “talis-

manic properties” that distinguish the commencement

of a trial from later stages so as to justify one rule

for defendants who abscond prior to trial and a dif-

ferent, more flexible, rule for those who abscond after

trial begins. Government of the Virgin Islands vy.

Brown, 507 F.2d 186, 189 (3d Cir. 1975); accord

United States vy. Peterson, 524 F.2d 167 (4th Cir.

1975), cert. denied, 423 U.S. 1088 (1976). As the

court of appeals in this case observed, “the voir dire

examination [of the prospective jurors] is probably

not as critical as cross-examination of the key wit-

nesses, which occurs in the later phases of a trial.

It would be anomalous to attach more significance to

a defendant’s absence at commencement than to ab-

sence during more important substantive portions of

the trial.” J.A. 58; accord Brown, 507 F.2d at 189.

The courts have properly concluded that the principle

1992), slip op. 14-19; United States v. Wright, 932 F.2d 868,

879 (10th Cir.), certs. denied, 112 8. Ct. 428 and 450 (1991);

see also United States v. Crews, 695 F.2d 519, 520-521 (11th

Cir. 1983) (upholding conviction of defendant who signed

written waivers of right to be present at commencement of

trial).

® See, e.g., McCaffrey v. State, 577 N.E.2d 617 (Ind. Ct.

App. 1991) ; State v. Galloway, 817 P.2d 1124 (Kan. Ct. App.

1991); Thomas v. State, 586 So. 2d 282 (Ala. Crim, App.

1991) ; State v. DeWeese, 816 P.2d 1 (Wash. 1991); Murphy

Vv. State, 555 N.E.2d 127 (Ind. 1990); Barnett v. State, 512

A.2d 1071 (Md. 1986); State v. Jackson, 351 S.E.2d 167

(S.C. 1986) ; State v. Kirk, 699 S.W.2d 814 (Tenn. Crim. App.

1985), cert. denied, 475 U.S. 1023 (1986); State v. Zavala,

666 P.2d 456 (Ariz. 1983). Others, however, have taken a

different view, see Hunter v. Commonwealth, 409 S.E.2d 483

(Va. Ct. App. 1991); Commonwealth yv. Felton, 307 A.2d 51

(Pa, 1973), cert. denied, 415 U.S. 984 (1974).

underlying this Court’s decisions in Diaz, Taylor, and

Illinois y. Allen—that “the governmental prerogative

to proceed with a trial may not be defeated by con-

duct of the accused that prevents the trial from going

forward,” Taylor, 414 U.S. at 20 (quoting /Ilinois y.

Allen, 397 U.S. at 349 (Brennan, J., concurring) )—

applies equally to commencing and continuing a trial

when a defendant deliberately chooses not to attend.

Contrary to petitioner’s contention (Pet. Br. 10-11,

26-28), the courts have not resorted to “ad hoc” pro-

cedures to determine under what circumstances a

defendant who fails to appear for trial may be tried

in his absence. The courts have followed the same

approach that they apply under Rule 43(b) (1) when

a defendant initially appears for trial but later

absconds. See, e.g., United States vy. Lochan, 674 F.2d

960, 967-968 (1st Cir. 1982). That approach is the

one first adopted by the Second Circuit in United

States v. Tortora, 464 F.2d 1202, cert. denied, 409

U.S. 1063 (1972). See J.A. 59-61." |

The Tortora analysis entails a two-part inquiry.

The first part is directed to the question whether the

defendant has knowingly and voluntarily absented

himself from trial, i.e., whether his conduct can prop-

erly be held to be a waiver of his right to be present.

The Tortora court held that “[i]t must clearly ap-

pear in the record * * * that the defendant was ad-

vised when proceedings were to commence and that

Tortora was apparently the first decision expressly ad-

dressing whether a defendant who fails to appear for trial

may, consistently with Rule 43 and the Constitution, be tried

in his absence. See Starkey, Trial in Absentia, 53 St. John’s

L. Rev. 721, 727-728 (1979). Tortora has been widely cited

in other circuits. See, e.g., Wright, 982 F.2d at 879;

Houtchens, 926 F.2d at 826-827; Lochan, 674 F.2d at 968 ;

Peterson, 524 F.2d at 185-186; Brown, 507 F.2d at 189.

he voluntarily, knowingly, and without justification

failed to be present at the designated time and place

before the trial may proceed in his absence.” Tortora,

464 F.2d at 1209. The courts of appeals have made

clear that convictions are subject to reversal if the

evidence is inadequate to support such a finding.”

The second part of the Tortora inquiry is directed

to the question whether, having found a waiver, the

court should proceed with trial, or whether it would

be an abuse of the court’s discretion to do so. Be-

cause it is “obviously desirable” that a defendant he

present at his own trial, the court held that a district

court should proceed with trial in the defendant’s

absence only after determining that the public inter-

est in proceeding with trial “clearly outweighs that

of the voluntarily absent defendant.” Tortora, 464

F.2d at 1210. In making that determination, the

court noted that the district court should consider

factors such as the likelihood that the defendant will

reappear in the near future; the difficulty of resched-

uling the trial; whether the trial involves multiple

defendants, and if so, whether the government would

be unduly burdened by having to conduct multiple

trials involving overlapping evidence: and whether

rescheduling the trial would impose an undue burden

on the government’s witnesses. /bid.: see a'so United

States v. Sanchez, 790 F.2d 245, 251 (2d Cir.), cert.

denied, 479 U.S. 989 (1986).

Under that standard, trial in «ahsentia remains

very much the exception rather than the rule. None-

theless, providing district courts with the authority to

™" See, e.g., United States v. Camacho, 955 F.2d 950, 954

(4th Cir. 1992): United States v. Alikpo, 944 F.2d 206, 208-

209 (5th Cir. 1991): United States v. Hernandez, 873 F.2d

516, 519 (2d Cir. 1989); cf. Cureton v. United States, 396

F.2d 671, 676 (D.C. Cir. 1968).

conduct trials in absentia in appropriate cases has

given those courts an important source of authority

to ensure that defendants do not by their misconduct

thwart “the proper administration of criminal jus-

tice,” Illinois v. Allen, 397 U.S. at 343." There is

therefore no reason for this Court to reject the uni-

form line of lower court authority and hold that a

court may not find that an absconding defendant has

waived his right to be present at trial.

D. The District Court Properly Found That Petitioner

Knowingly And Voluntarily Absented Himself From

Trial

Petitioner contends (Pet. Br. 28) that in “certain

cases” defendants who fail to appear for trial and are

tried in absentia will be deprived of procedural due

process. He suggests, as an example, that a defend-

ant’s due process rights would be violated if the court

failed to find that the absent defendant had know!-

edge of the trial date. /bid." In a similar vein, peti-

"It is particularly important in cases involving serious

crimes that courts have the capacity to hold trials in absentia,

because in those cases the other available remedies may be

inadequate to discourage defendants from absconding. When

a defendant faces likely conviction and a substantial sentence,

the threat of contempt sanctions or a prosecution for bail

jumping (18 U.S.C. 3146) in the event of his ultimate arrest

may not be enough to counter the incentive to flee. Tortora,

464 F.2d at 1209: see also Illinois v. Allen, 397 U.S. at 344-

345.

"In connection with that example, petitioner refers (Pet.

Br. 27, 28) to United States v. Mera, 921 F.2d 18 (2d Cir.

1990). That reference is misleading, however. In Mera, the

triat court specifically found, following an evidentiary hear-

ing, that the absconding defendant had actual knowledge of

the date on which his trial was scheduled to commence. /d.

at 19. The court of appeals sustained that finding, holding

tioner’s amicus suggests that it would be unconstitu-

tional to try a defendant in his absence if the defend-

ant failed to appear for trial because of illness.

ACLU Amicus Br. 11." Those hypothetical cases,

however, present issues quite different from the one

presented in this case, i.e., whether a court may try

a defendant in absentia after finding that the defend-

ant has knowingly and voluntarily absented himself

from the trial.

While some cases may present a serious question

whether a defendant has knowingly and voluntarily

waived his right to be present, this case is not one of

them. Petitioner does not, and cannot, dispute that he

knew when his trial was to begin. He personally ap-

peared in court on three occasions when the trial date

of October 12, 1988, was discussed. See J.A. 48-49.

That date was also set forth in a written notice to

counsel. J.A. 48. In addition, petitioner’s attorney

told the court that there was no objection to the

trial date. J.A. 49.

Petitioner does not point to anything, other than his

desire not to attend, that might have kept him away

from his trial. In fact, there was ample evidence that

that it was not clearly erroneous. /d. at 20. The court of

appeals held, in the alternative, that it was not necessary for

the defendant to know the precise date because, by appearing

at arraignment and pleading to the charges, he had notice of

the proceedings against him. /d. at 20-21.

4 Amicus does not cite (and we are not aware of) any case

involving that situation. Of course, the circumstances would

be very different if, for example, a hospitalized defendant

expressly waived his presence at a portion of the trial, see

United States v. Crews, 695 F.2d at 520, or if a defendant

feigned illness or decided to schedule elective surgery at a

time that would interfere with the trial, see United States Vv.

Barton, 647 F.2d at 238.

petitioner abandoned his residence precisely in order

to avoid standing trial. See J.A. 19, 25. Nor does pe-

titioner complain about the adequacy of the proce-

dures that the trial court employed in deciding

whether to hold the trial. The court made extensive

inquiries in an effort to locate petitioner, which in-

volved the Marshals Service and petitioner’s family

and bondsman. J.A. 43-44, 49-50. In short, dis-

trict court’s finding of waiver in this case is unas-

sailable.

It is equally clear that the district court, having

found a waiver, did not abuse its discretion in pro-

ceeding to trial in petitioner’s absence. The district

court correctly concluded that granting a severance

to petitioner and indefinitely postponing his trial

would impose an unusually heavy burden on the gov-

ernment, the witnesses, and the court. The four-

defendant trial in this case was scheduled to run a

number of weeks, and the government had assembled .

a total of 83 witnesses to testify in its case-in-chief.

Many of those witnesses were elderly and infirm, and

many of them had to travel to Minnesota from across

the country and from Canada. J.A. 44, 51, 61 n.3.

The case for holding a single trial on or shortly after

the scheduled trial date was therefore compelling.

In sum, this case presents a clear example of a

defendant’s purposeful effort to defeat justice by ab-

sconding from trial, where the options of postponing

the entire trial or granting a severance to the co-

defendants and contemplating a later, separate trial

for the absconding defendant would have been very

burdensome. It was therefore proper for the district

court to conclude that petitioner had waived his right

to be present and that the trial should be conducted

in his absence.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.