# Amicus Curiae Brief — Crosby v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0296%3A7

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1993
- **Citation:** 506 U.S. 255

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0296%3A7. Public record. Not legal advice.