Amicus Curiae Brief — Crosby v. United States

Supreme Court, U.S,

FILED ,

APR 15 18

No. 91-6194 | eae gf THE Cuca

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

=>

MICHAEL J. CROSBY,

Petitioner,

ee

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF AMICUS CURTAE OF THE AMERICAN CIVIL

LIBERTIES UNION IN SUPPORT OF PETITIONER

Steven R. Shapiro

(Counsel of Record)

Maya Wiley

John A. Powell

American Civil Liberties Union

Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................. ii

INTEREST OF AMICUS ..............0405. l

STATEMENT OF THE CASE ............... |

SUMMARY OF ARGUMENT ............... 3

ee 5

I. THE COURT SHOULD GIVE EF-

FECT TO THE PLAIN MEANING OF

SEG ane ea 5

A. The Plain Meaning Of Rule 43,

Like The Plain Meaning Of Any

Statute, Is Controlling And Should

Have Been Followed By The Courts

SE ee 5

B. The Plain Meaning Of Rule 43 Is

Consistent With The Prevailing

Case Law At The Time The Rule

2 Ere 1]

C. The Decision To Conduct An Entire

Trial Without The Presence Of The

Criminal Defendant Raises Signifi-

cant Constitutional Issues That This

Court Should Not Address Until

They Are First Considered By The

Drafters Of Rule 43 .............. i4

EEE ae 17

TABLE OF AUTHORITIES

Page

Cases

American Tobacco Co. v. Patterson,

456 U.S.-63 (19GZ) ...cccnseeene sue 8

Andrus v. Glover Construction Co.,

446 U.S. GOB (ISG) ow nc cscesene eee 7

Atchison, T. & S.F. Ry. v. Scarlett,

300 US. 471 (1937) 4. ecceseee une 6

Barton v. State,

67 Ga. G3 (1861) ....seseeese eee 12

Blue Chip Stamps v. Manor Drug Stores,

421 US. 723 (19735) oo cee ccecen eee 6

Blum v. Stenson,

465 U.S. G66 (1966) 2.0. coc csce eee eee 6

Chambers v. Mississippi,

410 U.S. 264 (1973) ow ccc ccenen eee 14, 15

Commissioner v. Brown,

300 U.S. 5635 (1966) . ce cvese eu eee 8

Consumer Product Safety Comm'n v.

GTE Sylvania, Inc.,

447 US. 142 (196) .. cscnseenee eee 6, 8

Continental Casualty Co. v. U.S.,

314 US. 527 (1968) «ewe cceeeeeeeeneeeee 7

Coy v. lowa,

487 U.S. 12 (19GRD ....cccesutawaeenoeeenes 1S

Crane v. U.S.,

162 U.S. GS (OGRE sce ewan eae y)

DeBartolo v. Florida Gulf Coast

and Const. Trades Council,

eee -. ef. 14

Diaz v. U.S..,

Gee Wee. SEZ CIDES) ow ww ccc 4,11, 12, 13

Dowell v. United States,

EE 16

Falk v. U.S.,

1S App.D.C. 446 (1899),

rev'd on other :

180 U.S. 636 (1901)(mem.) ................... 12

Ford Motor Credit Co. v. Cenance.

Ee 6

Garland v. Washington,

EL 9)

Griffin v. Oceanic Contractors, Inc.,

ED fk eee. 7,8

Hamilton v. Alabama,

RS )

Hamiling v. U.S.,

a 5

Hoffman v. Connecticut Income Dep't,

ee 7

Hopt v. Utah,

ee 13

Howe v. Smith,

CN S

Illinois v. Allen,

i 12, 13

In Re U.S..,

ee ee ee SEED “Sieiciccdecentoesen )

Jefferson County Pharmaceutical Ass'n

v. Abbott Laboratories,

i '' & |, aT EERE ELLA TETTTTTTTe 8

Kentucky v. Stincer,

Se EEE: covcescesoe castes cee Geen 15

Lewis v. U.S.,

Pe ED La scctenecvoavkwews 4, 11, 12, 13

Mallard v. U.S. District Court

for Southern District of lowa,

NE ee eee ee 6

Martin v. Hunter,

4 U.S. (1 Wheat) 304 (1816) .................. )

Mattox v. United States,

ee ie te al ee aa 15

McCarthy v. U.S.,

rn, << sl eedgbeehandwesbebeni 5

NLRB v. Catholic Bishop of Chicago,

he pe eee aeous eae é 14

Norfolk & Western Railway Co. v. ;

American Train Dispatchers Ass'n,

499 US. _, 111 S.Ct. 1156 (1991)... 57

Ohio v. Roberts,

”? ccacaskcceuk ox'eusednwer 6, 14

Old Colony R. Co. v. Commissioner

of Internal Revenue,

ee es ee ee y

IV

Page

Pennsylvania Dep't of Public

Welfare v. ,

495 US. _, 110 S.Ct. 2126 (1990) ............. 6

Pennsylvania v. Ritchie,

I i 14

Powell v. Alabama,

ts oc ened bene ncabbeweoeeus 16

Prussian v. U.S...

DPE, c coccoseceewncéscocscce 6

Rubin v. U.S.,

I es ks ode Coudeane 7

Snyder v. Massachusetts,

I a a 15, 16

Tennessee Valley Authority v. Hill,

CO 7

U.S. v. American Trucking Ass'ns, Inc.,

de i 8

U.S. v. Locke,

a hi 7

U.S. v. Robinson,

Ee Ee ROE LAE 6

U.S. v. Ron Pair Enterprises, Inc., e

RE aE Ea 7

U.S. v. Turkette,

ee S

Statutes and Rules

EE Wd, ses wa bunk ooh kvdeehecwiwit 11

ee en

Page

Federal Rules of Criminal Procedure

ET Us ateedidudccalibvseeesenees passim

Dt te caghawsawe paves cewee Gadaonws )

Dt? <cecgcunneiweeadddundendecescucetes 10

Other Authorities

Federal Rules of Criminal Procedure,

Notes of Committee on the Judiciary,

House Report No. 94-247 ................. 13

Federal Rules of Criminal Procedure,

Notes of Advisory Committee on Rules ..... 4,11

Webster's College Dictionary (1991) ............ 9

vi

INTEREST OF AMICUS'

The American Civil Liberties Union (..CLU) is a

nationwide, nonpartisan organization of near'y 700,000

persons dedicated to preserving and protecting the civil

rights and civil liberties guaranteed by law. ’

This case raises fundamental issues about the opera-

tion of our criminal justice system. In particular, the

government's asserted right to try a defendant in absentia

has potentially far-reaching consequences for the crimi-

nal justice system and the adversarial process on which it

rests.

The ACLU has long believed that the adversarial

process is critical to the fairness of the criminal justice

system and has filed numerous briefs in support of that

position, both as direct counsel and as amicus curiae.

This case brings those issues once again before this

Court.

STATEMENT OF THE CASE

In 1988, Michael J. Crosby and three codefendants

were arrested and charged with crimes arising out of a

fraudulent scheme in which customers paid for, but

never received, silver commemorative medallions.’ Fol-

lowing his arrest, Crosby attended several pretrial con-

ferences at which the court advised all parties that a trial

date had been set for October 12, 1988. Additionally,

the clerk of the court mailed a notice to Crosby's coun-

sel confirming the trial date.

Letters of consent to the filing of this bricf have been lodged with

the Clerk of the Court pursuant to Rule 37.3

* These facts are derived from the opinion below. See generally

United States v. Crosby, 117 F 2d %2 (Sth Cir, 1990)

Despite this notice, Crosby failed to appear for trial

on October 12 or to send any explanation for his ab-

sence. In response, the court issued a bench warrant for

his arrest. When federal marshals were unable to locate

Crosby by October 17, the district judge held the trial

without him. In his absence, Crosby was convicted of

twenty-five counts of mail fraud. Seven months later,

Crosby was apprehended again and sentenced to four

consecutive five-year terms on twenty-two of the counts.’

He also received five years probation to commence upon

completion of his prison term, during which he is

required to pay $550,000 restitution to his victims.

In explaining his decision to try Crosby in absentia,

the district judge noted that Crosby had “deliberately,

voluntarily, knowingly, and without justification failed to

be present at the designated time and place for the trial

of the action.” 917 F.2d at 363. The district judge also

stressed that the 3 codefendants, all counsel, 54 jurors

and over 80 witnesses had already gathered for the pro-

ceedings. These factors persuaded the district judge that

it was impractical to reschedule the trial or to sever

Crosby's case.

On appeal, Crosby argued that the decision to try

him in absentia violated the plain meaning of Rule 43(a)

of the Federal Rules of Criminal Procedure, which pro-

vides that “[t}he defendant shall be present . . . at every

stage of the trial including the impaneling of the jury

and the return of the verdict... ." Apparently relying

' He received a suspended sentence on the three remaining counts.

* Rule 43 provides, in pertinent part (emphasis added):

(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 impancling of the jury and the return

of the verdict, and at the imposition of sentence, except as

(continued...)

*

on Rule 43(b), the Eighth Circuit held that Crosby had

waived his right to be present at trial, even though the

discussion of waiver in Rule 43(b) specifically refers to a

defendant who is “initially present" when trial com-

mences. Here, the Eighth Circuit acknowledged that

Crosby was not “initially present” at trial within the

meaning of Rule 43(b). Nevertheless, it declined to fol-

low the literal wording of Rule 43 because it believed

that a literal application of the Rule would produce an

irrational result in this case.

SUMMARY OF ARGUMENT

This case raises a narrow question of statutory con-

struction: What is meant by Rule 43 of the Federal

Rules of Criminal Procedure? In our view, the answer

to that question is simple and straightforward. Accord-

ingly, there is no need for this Court to decide whether

the Constitution would ever permit a criminal defendant

* (continued)

otherwise provided by this rule.

(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 deiendant shall be considered to

have waived the right to be present whenever a defendant,

initially present,

(1) ts voluntarily absent after the trial hes commenced

(whether or not the defendant has been informed by

the court of the obligation to remain during the trial),

or

(2) after being warned by the court that disruptive con-

duct will cause the removal of the defendam from the

courtroom, persists in conduct which is such as to jus-

tify exclusion from the courtroom.

In addition, the Rule states that the presence of the defendant is not

required in proceedings on offenses punishable by fine or IMprison-

ment for not more than one year or both with the defendant's written

consent. See Fed R.Crim.P. 4c)

to be tried in absentia. That hypothetical inquiry can

and should be left for another day. Likewise, this case

does not present any issue of inherent judicial authority.

Whatever inherent authority might exist in the absence

of a rule, it is the language of Rule 43 that must govern

here.

Fairly read, the language of Rule 43 cannot be rec-

onciled with the result below. In unambiguous terms,

Rule 43 states that a criminal defendant "shall be pres-

ent" at "every stage of the trial including the impaneling

of the jury and the return of the verdict . . .", except in

specific circumstances not applicable to these facts. This

language is not discretionary and it does not suggest that

the requirement of a defendant’s presence at "every

Stage of the trial" is subject to further unenumerated ex-

ceptions.

The language of Rule 43 is also consistent with its

legislative history. The Advisory Committee Notes on

the Rules state that it codified existing precedent on the

prosecution of absent defendants, citing Lewis v. U.S.,

146 U.S. 370 (1892), and Diaz v. U.S., 223 U.S. 442

(1913). These decisions support the conclusion that a

defendant may not be tried in absentia under the facts of

this case.

Contrary to the view of the court below, Rule 43(b)

neither compels nor authorizes a different conclusion.

In particular, Rule 43(b)(2) was added in 1974 following

the decision in I/llinois v. Allen, 397 U.S. 337 (1970).

Like Allen itself, Rule 43(b) permits the removal of a

defendant who behaves disruptively during the course of

proceedings. For present purposes, however, it is more

significant that Rule 43(b) explicitly incorporates the

threshold requirement that the defendant shall be “ini-

tially present" when trial begins.

Any decision to commence a trial in the defendant’s

absence indisputably raises substantial issues under the

Sixth and Fourteenth Amendments. The drafters of the

Rule were aware of these constitutional issues and craft-

ed a rule in light of them. If the Rule is to be redrafted,

it should be done pursuant to the process that Congress

created.’ Until the Rule is redrafted, this Court should

not anticipate a constitutional controversy that may nev-

er arise.

ARGUMENT

I. THE COURT SHOULD GIVE EFFECT TO

THE PLAIN MEANING OF RULE 43

A. The Plain Meaning Of Rule 43, Like The

Plain Meaning Of Any Statute, Is Control-

ling And Should Have Been Followed By

The Courts Below

This case can be simply resolved by following the

plain meaning of Rule 43. The question of whether the

Constitution would ever permit a criminal trial to begin

in the defendant’s absence is an interesting one, but it is

not before this Court. Likewise, the Court should not

attempt to define what inherent authority a trial judge

might possess to begin a trial in the defendant’s absence

if Rule 43 did not exist. Rule 43 exists, it is unambigu-

ous, and its mandate must be obeyed.

This Court has repeatedly held that the meaning of

a Statute can best be determined by examining its lan-

guage. If the statutory language is clear, no further "in-

terpretation" is necessary or proper.’ See, e.g., Norfolk &

* See 28 U.S.C. §2071.

* This Court has long employed the traditional rules of Statutory con-

struction in interpreting the Federal Rules of Criminal Procedure, in-

cluding application of the plain meaning rule. See Hamiing v. U.S.,

418 U.S. 87, 134 (1974)(district court erred by ignoring the express

(continued...)

5

Western Railway Co. v. American Train Dispatchers Ass'n,

499 US. , 111 S.Ct. 1156, 1163 (1991)(the plain

language of 49 U.S.C. §11341(a) exempts a carrier from

the antitrust laws if a consolidation is approved by the

Interstate Trade Commission): Pennsylvania Dep't of

Public Welfare v. Davenport, 495 U.S. __, 110 S.Ct. 2126

(1990)(the plain language of Chapter 13 of the Bank-

ruptcy Code required that debts include restitution ob-

ligations); Mallard v. U.S. District Court for Southern Dis-

trict of lowa, 490 U.S. 296, 301 (1989); Blum v. Stenson,

465 U.S. 886, 893-94 (1984)(determining that Congress

intended nonprofit organizations to be eligible for attor-

neys’ fees under 42 U.S.C. § 1988); Ford Motor Credit Co.

v. Cenance, 452 U.S. 155, 158 n.3 (1981); Consumer

Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S.

102 (1980); Blue Chip Stamps v. Manor Drug Stores, 421

U.S. 723, 756 (1975)(Powell, J., concurring); Prussian v.

U.S., 282 U.S. 675, 677 (1931)(examined common use of

term in an plain language of criminal statute).

By its express terms, Rule 43 does not permit a

court to try a defendant in absentia except under clearly

enumerated circumstances. Specifically, Rule 43(a)

States that a defendant "shall be present .. . at every

stage of the trial" (emphasis added). The only excep-

tions to this otherwise unequivocal mandate are set forth

in Rule 43(b), which provides that "further progress of the

trial" is permitted if the defendant absents himself "after

° (...continued)

terms of Fed.R.Crim.P. 30); McCarthy v. U.S., 394 U.S. 459, 464

(1969)(district court erred in not doing what Fed.R.Crim.P. 11 ex-

pressly directs); U.S. v. Robinson, 361 U.S. 220, 224-25 (1960)(in ex-

amining the plain meaning of Fed.R.Crim.P. 45(b), the Court found

that the circuit court’s decision was in direct conflict with the Rulc).

This symmetry makes sense since the Federal Rules of Criminal Pro-

cedure are promulgated by this Court pursuant to statutory authority

given it by Congress, 28 U.S.C. §2071. See Atchison, T. & S.F. Ry. v.

Scarlett, WO U.S. 471, 474 (1937).

the trial has commenced" or is "excluded from the court-

room" (emphasis added). Thus, a court does not have to

halt a trial that has already begun because the defendant

has stopped coming or because the defendant has been

removed for disruptive behavior. Unless the language of

the Rule is completely ignored, however, the trial cannot

begin if the defendant is not there.

By holding that a trial may start without the defend-

ant, the lower courts in this case have created a new ex-

ception to Rule 43(a) in the face of explicit language

that the defendant’s presence is required “except as

otherwise provided" by the Rule.’ If the Court allows

the Eighth Circuit opinion to stand, this phrase in the

Rule becomes mere surplusage, and the clear intention

of the drafters would be undermined." See Hoffman v.

Connecticut Income Dep't, 492 U.S. 96, 103 (1989).

It is only under rare and exceptional circumstances

that the Court will go beyond the unambiguous language

of a statute. U.S. v. Ron Pair Enterprises, Inc., 489 U.S.

235, 242 (1989), citing Griffin v. Oceanic Contractors, Inc.,

458 U.S. 564, 571 (1982); U.S. v. Locke, 471 U.S. 84, 93-

102 (1985); Rubin v. U.S., 449 U.S. 424, 430 (1981)(inter-

preting §17 of the Securities Act of 1933), citing Tennes-

” Because the Rule contains a general prohibition against trying an ab-

sent defendant, then specifically enumerates exceptions to the prohibi-

tion, courts may not imply additional exceptions. Andrus v. Glover

Construction Co., 446 U.S. 608, 616-17 (1980), citing Continental Casu-

alty Co. v. U.S., 314 U.S. 527 (1942). Only when a court finds evi-

dence of legislative intent to imply additional exceptions can a court

do so. 446 U.S. 608. No such evidence of intent exists here.

Moreover, the Rule contains no catch all phrase or general state-

ment that would allow a court discretion to read other exceptions into

the Rule. See Norfolk & Western Railway Co., 111 S.Ct. 1156.

* Only subsection (c) appears to allow a court to conduct a trial with a

defendant in absentia ab initio, but subsection (c) only applies to

“prosecuuions for offenses punishable by fine or by imprisonment for

not more than one year, or both.”

see Valley Authonty v. Hill, 437 U.S. 153, 187, n.33

(1978); Howe v. Smith, 452 U.S. 473, 483 (1981)(inter-

preting whether 18 U.S.C. §5003 permits a state prison

authority to house a prisoner in a federal facility).

Here, the burden is on the government to show that

a literal reading would lead to an untenable result. See

Griffin v. Oceanic Contractors, 458 U.S. 564. Moreover,

the Court has found untenable results only where the

purpose of Congress in enacting the legislation would be

thwarted by giving effect to its plain language. See U.S.

v. American Trucking Ass’ns, Inc., 310 U.S. 534, 542-43

(1940); Commissioner v. Brown, 380 U.S. 563, 571 (1965).

Stated another way, this Court has held that the

plain meaning of a statute is conclusive absent a "clearly

expressed legislative intention to the contrary." Consum-

er Product Safety Comm’n, 447 U.S. at 108; U.S. v. Tur-

kette, 452 U.S. 576, 580 (1981)(interpreting the word "en-

terprise" in RICO, 18 U.S.C. §§1961-1968); American

Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982)(inter-

preting 42 U.S.C. §2000e-2(h)). See also Jefferson Coun-

ty Pharmaceutical Ass'n v. Abbott Laboratories, 460 U.S.

150, 157 (1983)(interpreting the Robinson-Patman Act’s

application to sales of pharmaceuticals to public hospi-

tals for resale to the public). In this case, neither lower

court pointed to any legislative history that even remote-

ly suggests that a straightforward interpretation of Rule

43 would thwart its legislative purpose.

The plain language of Rule 43 is also inconsistent

with any claim that Crosby’s presence at arraignment

was sufficient to satisfy the Rule’s requirement that a

defendant be "initially present" when trial begins. The

Rule specifically and discretely refers to a defendant's

presence “at the arraignment, at the time of plea, [and]

at every stage of the trial... ." Arraignment, plea, and

trial are not equivalent phases of a criminal proceeding.

The Rule itself implicitly recognizes that fact by describ-

ing them in separate clauses divided by commas.

Moreover, this grammatical formulation merely rein-

forces the common meaning of the words used in the

Rule. Martin v. Hunter, 4 U.S. (1 Wheat) 304 (1816)

(words in a statute should be given their common

meaning absent some indication to the contrary); see Old

Colony R. Co. v. Commissioner of Internal Revenue, 284

U.S. 552, 560 (1931). In particular, the word "trial" is

commonly understood to refer to a phase of the criminal

proceeding that is distinct from both the arraignment

and the plea.”

Arraignments and pleas are pretrial activities. See

Hamilton v. Alabama, 368 U.S. 52, 54 n.4 (1961)("{u}nder

federal law an arraignment is a sine qua non to the trial

itself -- the preliminary stage where the accused is in-

formed of the indictment and pleads to it, thereby for-

mulating the issue to be tried"). See also Crane v. U.S.,

162 U.S. 625, 644 (1896). The arraignment informs a

defendant of the charges against him or her.'® Garland

v. Washington, 232 U.S. 642, 644 (1914). See also Fed.R.

Crim.P. 10." The plea phase allows a defendant to state

* Webster's College Dictionary (1991) at 1423:

Trial n. la. the examination of a cause

before a court of law...

b. the use of due process to de-

termine a person’s guilt or in-

nocence,

the act of trying, testing or

putting to the proof.

tv

At least one court has construed Rule 43(a) in terms of its plain

language, finding that defendant must be present at his arraignment.

In Re U.S., 784 F.2d. 1062 (11th Cir. 1986),

' Fed.R.Crim.P. 10 provides:

(continued...)

9

whether or not he or she is innocent and determines

whether there will be a trial. See Fed.R.Crim.P. 11." A

trial, by contrast, involves the presentation of evidence.

Given the differences between arraignment, plea and

trial, the plain language of Rule 43(a) can only be inter-

preted to mean that a criminal defendant must be pres-

ent at each of these events. This reading of the Rule is

further supported by the language of subsection (b),

since it specifically requires that the trial be in progress

before a court proceeds without a defendant under the

enumerated exceptions.

If a literal application of the Rule causes administra-

tive inconvenience, as both the district court and court of

appeals seemed to think in this case, the appropriate

procedure is to consider amending the Rule. See Point

IC, infra. Unless and until the Rule is amended, how-

ever, it must be enforced as written. Furthermore,

amicus believes that the administrative concerns voiced

' (continued)

Arraignment shall be conducted in open court and shall

consist of reading the indictment or information to the de-

fendant or stating to the defendant the substance of the

charge and calling on the defendant to plead thereto. The

defendant shall be given a copy of the indictment or infor-

mation before being called upon to plead.

* Fed.R.Crim.P. 11 pgovides, in pertinent part:

(a) Alternatives.

(1) In General. A defendant may plead not guilty, guilty,

or nolo contendere. If a defendant refuses to plead or if a

defendant corporation fails to appear, the court shall enter

a plea of not guilty... .

(g) Record of Proceedings. A verbatim record of the proceed-

ings at which the defendant enters a plea shall be made and, if

there is a plea of guilty or nolo contendere, the record shall in-

clude, without limitation, the court’s advice to the defendant, the

inquiry into the voluntariness of the plea including any plea

agreement, and the inquiry into the accuracy of a guilty plea.

10

by the court below, while well-meaning, are overstated.

If the defendant had absconded before a trial date had

been set, the district judge would presumably have faced

the same choice of postponing the trial or severing Cros-

by’s case.” A similar dilemma would have occurred if

Crosby had gotten seriously ill on the eve of trial, after

the jurors and witnesses had assembled. Such develop-

ments are unfortunate but they are hardly unprecedented

and do not justify the decision in this case to ignore the

plain meaning of Rule 43.

B. The Plain Meaning Of Rule 43 Is Consistent

With The Prevailing Case Law At The Time

The Rule Was Enacted

Rule 43(a) was adopted in 1944 as a restatement of

existing law. Notes of Advisory Committee on Rules.

According to the Advisory Committee, the Rule codified

existing law. As examples of existing law, the Advisory

Committee cited Lewis v. U.S., 146 U.S. 370, and Diaz v.

U.S., 223 U.S. 442. Both Lewis and Diaz support Cros-

by’s contention that the Rule required his presence at

the outset of trial.

In Lewis, the Court determined that defendant's ab-

sence during the impaneling of the jury was reversible

error. As the Court explained:

[I]n felonies, it is not in the power of the

prisoner, either by himself or his counsel, to

waive the right to be personally present dur-

ing trial. “It would be contrary to the dic-

tates of humanity to let him waive the ad-

vantage which a view of his sad plight might

give him by inclining the hearts of the jurors

to listen to his defense with indulgence.”

In addition, it is important to note that bail jumping is a separate

federal crime. See 18 U.S.C. § 3150.

1]

i... gg

Id. at 372 (citation omitted). This statement makes clear

the importance that the Lewis Court placed on the pres-

ence of the defendant at trial in felony cases. While it is

true that the Court has stated that this right is not abso-

lute, the Court has never ruled that the absence of the

defendant from the inception of trial is a waiver of the

right to be present. See Illinois v. Allen, 397 U.S. 337.

The Diaz case also supports the plain reading of the

Rule. Diaz, who was charged with murder but free on

bail, had been present when trial began. Subsequently,

he failed to appear on two instances during the course of

the trial, missing the direct testimony and cross-examina-

tion of two witnesses for the government. The Court

held that his midtrial absence was a voluntary waiver of

his right to be present during all phases of the trial un-

der a Philippine statute. However, the Court made clear

that this determination rested on the fact that Diaz was

not in custody, that the offense was not a capital offense,

and that he had been present when the trial began. An-

ticipating Rule 43(b)(1), the Court wrote:

[W]here the offense is not capital and the

accused is not in custody, the prevailing rule

has been, that if, after the trial has begun in

his presence, he voluntarily absents himself,

this does not nullify what has been done or

prevent the completion of the trial .. . .

223 U.S. at 455 (emphasis added).

The limited nature of this ruling is underscored by

the fact that in every case discussed by the Court in sup-

port of its holding in Diaz, the defendant had appeared

at the commencement of trial, unlike the situation pre-

sented here. See Barton v. State, 67 Ga. 653 (1881)(de-

fendant waived his right to be present at the reading of

the verdict); Falk v. U.S., 1S App.D.C. 446, 454 (1899),

revd on other grounds, 180 U.S. 636 (1901)(mem.)(de-

fendant had been present at commencement of the trial

and for some testimony and then fled the jurisdiction).

In 1974, Rule 43 was amended to include subdivision

(b)(2), which codified the Court's decision in /llinois v.

Allen, 397 U.S. 337. See Notes of Committee on the Ju-

diciary, House Report No. 94-247. In Allen, the Court

held that,

a defendant can lose his right to be present

at trial if, after he has been warned by the

judge that he will be removed if he contin-

ues his disruptive behavior, he nevertheless

insists on conducting himself in a manner so

disorderly, disruptive, and disrespectful of

the court that his trial cannot be carried on

with him in the courtroom.

Id. at 343.

Like Lewis and Diaz, the holding in Allen plainly as-

sumes that the defendant will be present when the trial

begins. A defendant cannot be removed after a warning

unless he was present initially. Moreover, the facts of

Allen support this reading, since Allen was present for a

portion of voir dire before he began to disrupt the pro-

ceedings.”

“ One may argue that trial commences with opening arguments and

not with voir dire. However, the case law does not support this view.

The Court in Diaz recognized that in felony cases courts had extended

the right to be prescat through all phases of the trial, from impancling

the jury to imposition of the verdict. Diaz, 223 US. at 454. The

Court in Lewis also stated that, in a felony case, the trial begins at

least from the time when the work of impancling a jury begins.

Lewis, 146 U.S at 374, citing Hopt v. Utah, 110 U.S. 574 (1884). The

language of Rule 43a) supports this view by describing the act of im-

pancling the jury as part of the trial process.

13

-

By contrast, Crosby was not present for any portion

of the trial, including the impaneling of the jury.” This

result is inconsistent with the case law relied on by the

drafters of Rule 43, both when the Rule was first adop-

ted and when it was amended in 1974.

C. The Decision To Conduct An Entire Trial

Without The Presence Of The Criminal De-

fendant Raises Significant Constitutional

Issues That This Court Should Not Address

Until They Are First Considered By The

Drafters Of Rule 43

It is axiomatic that statutes (and rules) should be

construed to avoid constitutional questions whenever

possible. See DeBartolo v. Florida Gulf Coast and Const.

Trades Council, 485 U.S. 568, 575 (1988); NLRB v. Cath-

olic Bishop of Chicago, 440 U.S. 490, 499-501 (1979).

The lower courts in this case followed precisely the op-

posite course by adopting a strained interpretation of

Rule 43 that would permit an entire criminal trial to be

conducted in the defendant’s absence. This Court can

and should correct that error by insisting that the consti-

tutional values at stake first be weighed and considered

by the drafters of Rule 43.

A defendant’s right to be present at his own trial is

firmly protected by both the Sixth and Fourteenth

Amendments. In particular, the Sixth Amendment's

Confrontation Clause protects a defendant's right to

meet adverse witnesses face-to-face, and to cross-

examine them. Pennsylvania v. Ritchie, 480 U.S. 39, 51

(1987). This allows the defendant to test the recoll c-

tion of a witness and sift the witness’ conscience. Ofuo

* The district court's order, dated October 14, 1988, stated that fifty-

four jurors were ready on October 12, 1988, the day the trial was to

begin. Crosby, 917 F.2d at 363. This could only mean that a panel of

potential jurors stood ready for voir dire, which had not yet begun.

I4

v. Roberts, 448 U.S. 56, 63-64 (1980). See also Chambers

v. Mississippi, 410 US. 284, 295 (1973); Mattox v. United

States, 156 U.S. 237, 242-43 (1895). Moreover, a defend-

ant’s face-to-face confrontation with a witness may make

it more difficult for the witness to lie on the stand. See

Coy v. lowa, 487 U.S. 1012 (1988)(Sixth Amendment was

violated where a screen was placed between defendant

and the child he allegedly raped). Conversely, the ab-

sence of such confrontation calls into question the integ-

rity of the proceedings even if defense counsel has an

opportunity to cross-examine government witnesses in

the defendant’s absence. Chambers, 410 U.S at 95.

In addition to the Sixth Amendment, the decision to

try a defendant in absentia also raises obvious due proc-

ess concerns. Acknowledging this concern in Kentucky v.

Stincer, 482 U.S. 730 (1987), the Court held that a de-

fendant has a right to be present in court whenever the

proceedings involve an opportunity to defend against the

government's charges. /d. at 745, citing Snyder v. Massa-

chusetts, 291 U.S. 97 (1934).

The nature of this due process interest was more ful-

ly explored in Snyder. As the Court explained in that

case, a defendant must be present at trial "to give advice

or Suggestion or even to supersede his lawyers altogether

and conduct the trial himself." /d. at 106." This is par-

“In Coy, the Court acknowledged that its encounters with the Con-

frontation Clause have generally been on questions of admissibility of

out-of-court statements or on restrictions on the scope of cross-cxami-

nation. 487 U.S. at 1016. A defendant's absence from trial presents a

different question because, unlike the hearsay rule and cross-cxamina-

tion cases, the defendant has not confronted any witnesses at all. The

question may more squarcly focus our attention on why we value con-

frontation so highly that the integrity of judicial proceedings rests

upon it.

’ Although the Court found that the defendant did not have the right

to be present when the jury was taken to the scene of the crime the

(continued...)

15

ticularly true, as Snyder points out, “when evidence is of-

fered.” Jd. at 114. See also Powell v. Alabama, 287 U.S.

45, 59 (1932); Dowell v. United States, 221 U.S. 325, 329-

30 (1911).

The importance of these rights cannot be denied

and, while they may not be absolute, they should not be

overridden in the name of Rule 43 without some clear

indication that this result was intended by the Rule’s

drafters. By ignoring this precept of judicial restraint,

the decision below has raised constitutional issues that

may never become ripe if Rule 43 remains in its present

form. This Court should not compound that error by an-

ticipating a constitutional controversy that can easily be

avoided by applying Rule 43 as it is actually written.

” (..continued)

defendant was convicted of committing, it rested the judgment on the

fact that nothing was said to the jurors to direct their attention to par-

ticulars, taking care to distinguish the jury trip to the scene from the

“trial.”

16

CONCLUSION

For the reasons stated herein, the judgment below

should be reversed.

Respectfully submitted,

Steven R. Shapiro

(Counsel of Record)

Maya Wiley

John A. Powell

American Civil Liberties Union

Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

Dated: April 15, 1992

17