Cuoco v. U.S.

Decision Date01 August 1999
Docket NumberDocket No. 99-2066
Citation208 F.3d 27
Parties(2nd Cir. 2000) JOHN A. CUOCO, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee
CourtU.S. Court of Appeals — Second Circuit

Appeal from a order of the United States District Court for the Southern District of New York (Goettel, J.) denying petitioner's motion to vacate his conviction and sentence.

Affirmed.

SOLOMON ROSENGARTEN, Brooklyn, NY, for Petitioner-Appellant.

STEPHANOS BIBAS, Assistant United States Attorney for the Southern District of New York, New York, NY (Mary Jo White, United States Attorney for the Southern District of New York, Christine H. Chung, Assistant United States Attorney, on the brief) for Respondent-Appellee.

Before: CARDAMONE and POOLER, Circuit Judges, and MORDUE, District Judge.*

POOLER, Circuit Judge:

Petitioner John A. Cuoco appeals from an order of the United States District Court for the Southern District of New York (Gerard L. Goettel, Judge) denying the motion he made pursuant to 28 U.S.C. 2255 for an order vacating his conviction on two counts each of robbery and robbery with a dangerous weapon. The district court rejected all of Cuoco's arguments, which included claims that the trial court violated both the United States Constitution and Federal Rule of Criminal Procedure 43 by allowing Cuoco to absent himself from his criminal trial and that Cuoco's appellate counsel was constitutionally ineffective because he failed to raise Cuoco's absence as a ground for reversal. We affirm. By refusing to remain in court when his criminal trial was about to begin, Cuoco waived his constitutional right to be present, and his appellate counsel's failure to seek reversal based on a violation of Rule 43 did not fall below an objective standard of reasonableness.

BACKGROUND

We previously affirmed Cuoco's conviction on four counts of robbing local offices of the United States Postal Service. See United States v. Cuoco, 992 F.2d 319 (2d Cir. 1993). On May 5, 1997, Cuoco filed a motion pursuant to 28 U.S.C. 2255 to vacate his conviction. Cuoco sought relief based on ineffective assistance of trial counsel, use of illegally obtained tape recordings at trial, trial in absentia, ineffective assistance of appellate counsel, and governmental misconduct. Although the district court rejected each of these claims, it issued a certificate of appealability limited to the issues of "trial purportedly 'in absentia'" and appellate counsel's failure to raise the issue of Cuoco's absence from trial. We therefore limit our discussion of the history of this case to the facts relevant to these two issues.

The district court scheduled a suppression hearing and jury selection for Cuoco's trial on March 9, 1992. Because defense counsel was ill on the scheduled date, Judge Goettel adjourned the proceedings and returned Cuoco to the Otisville Correctional Facility ("Otisville"). On the adjourn date, March 13, 1992, Cuoco was not present. Deputy United States Marshal Angelo Daddario testified that when he and his partner attempted to bring Cuoco to court, Cuoco refused. At defense counsel's request, the court directed the marshals to bring Cuoco to court forcibly if necessary, so that the court could determine whether Cuoco knowingly and voluntarily waived his right to be present at trial. The marshals brought Cuoco to court on March 16, 1992, and the judge informed him that "[i]f you in the future refuse to cooperate and to come, you will not be brought physically to court, we will deem your absence to be a voluntary waiver of your presence in court." The court further asked, "Do you understand what I just told you?" Cuoco replied that he did.

Judge Goettel next conducted the suppression hearing, during which Cuoco testified. At the conclusion of the suppression hearing, the court informed Cuoco that it was time to bring the jury into court and asked whether Cuoco would like to change out of his prison clothing. Cuoco responded, "I'd rather not be present." Defense counsel then told the court that although he believed Cuoco had a right not to be present, he had advised Cuoco that his absence would materially prejudice his defense. Defense counsel first said that Cuoco would suffer prejudice because he would not be able to consult with his counsel concerning peremptory challenges to jurors. The attorney also explained that Cuoco's inability to see and hear the witnesses would prejudice his Sixth Amendment right of confrontation and ability to testify in response to government witnesses. Judge Goettel echoed this advice, saying, "he compromises the ability to present an effective defense if he's not present and advising you as things occur, [a]nd it would be a very unwise decision on his part not to be present during the trial." The court then asked defendant, "Knowing that, Mr. Cuoco, do you wish to be present?" Cuoco answered, "No, I do not," and declined the court's offer to allow him to listen to the proceedings in a nearby room. The court allowed the marshals to take Cuoco back to Otisville only after instructing them "to ask him each morning while the trial is on whether he is willing to come to court, and whether he wants to come to court."

New counsel represented Cuoco on appeal. This attorney did not seek reversal of Cuoco's conviction based on Cuoco's absence from trial, and we rejected all of the grounds that he did raise. After appellate counsel submitted his brief but before oral argument in the Second Circuit, the Supreme Court decided Crosby v. United States, 506 U.S. 255 (1993). Crosby established that Federal Rule of Criminal Procedure 43 precludes the trial in absentia of a defendant who flees before trial. See id. at 261-62. Crosby's effect, if any, on Cuoco's conviction is central to this appeal.

DISCUSSION
I. Scope of Section 2255 Review

We review the district court's denial of a Section 2255 motion de novo. However, "a collateral attack on a final judgment in a federal criminal case is generally available under 2255 only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes 'a fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).

II. The Merits

No constitutional error results if a defendant knowingly and voluntarily waives his right to be present at trial. See Smith v. Mann, 173 F.3d 73, 76-77 (2d Cir.), cert. denied, 120 S. Ct. 200 (1999). When a defendant "kn[ows] the precise time and place he [is] to appear for trial, and that the consequence of his failure to appear [will] be a trial in absentia" and then fails to appear on the scheduled date, he waives his Sixth Amendment right to attend the trial. Id. at 77. Because Cuoco refused to attend the trial just before jury selection began and after both his counsel and the court warned him of the consequences of his failure to appear, Cuoco waived his Sixth Amendment right to attend the trial.

We cannot review directly Cuoco's claim that his absence violated Rule 43 as that claim is not based on the constitution, does not allege that the trial court lacked jurisdiction, and does not describe a complete miscarriage of justice. See Bokun, 73 F.3d at 12. However, we can consider whether the failure of Cuoco's appellate counsel to make a Rule 43 argument deprived Cuoco of his Sixth Amendment right to effective assistance of counsel.

To prevail on his ineffective assistance claim, Cuoco must demonstrate that his appellate attorney's conduct "fell below an objective standard of reasonableness" and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Because Cuoco's direct appeal was pending when the Supreme Court issued its Crosby decision, that decision, if relevant, applied to Cuoco's appeal. See Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). Therefore, Crosby as well as Rule 43 guide us in determining whether appellate counsel's performance "fell below an objective standard of reasonableness." At the time of Cuoco's and Crosby's trials, Rule 43(a) provided 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 . . . except as otherwise provided by this rule." The rule further provided that a "defendant will be considered to have waived the right to be present whenever a defendant, initially present, . . . 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)." Fed. R. Crim. P. 43(b) (1987) (amended 1995 and 1998).

Cuoco argues that Crosby interpreted Rule 43 to impose a bright-line rule precluding the trial in absentia of a defendant who is not present for jury selection. We disagree for reasons best explained by a review of Crosby's history. Michael Crosby fled and failed to appear for trial after being notified of the trial date. See Crosby, 506 U.S. at 256. The district court found that Crosby voluntarily waived his Sixth Amendment right to be present during trial and that the public interest in proceeding with the trial outweighed Crosby's interest in being present. See id. at 257. The jury convicted Crosby. See id. The United States Court of Appeals for the Eighth Circuit affirmed Crosby's conviction, rejecting his argument that Rule 43 forbids a trial in absentia of a defendant who is not present at the beginning of trial. See United States v. Crosby, 917 F.2d 362, 364-66 (8th Cir. 1990). In reversing both courts, the Supreme Court stated that "[t]he language, history, and logic of Rule 43...

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