U.S. v. Williams

• Citation: 641 F.3d 758
• Decision Date: 11 May 2011
• Docket Number: No. 09–5256.,09–5256.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Marshall WILLIAMS, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

641 F.3d 758

UNITED STATES of America, Plaintiff–Appellee,

v.Marshall WILLIAMS, Defendant–Appellant.

No. 09–5256.

United States Court of Appeals, Sixth Circuit.

May 11, 2011.

ON BRIEF: Robert C. Brooks, Memphis, Tennessee, for Appellant. Anne–Marie Svolto, Assistant United States Attorney, Memphis, Tennessee, for Appellee. Marshall DeWayne Williams, Inez, Kentucky, pro se.Before: MARTIN and STRANCH, Circuit Judges; THAPAR, District Judge. ^*MARTIN, J., delivered the opinion of the court, in which STRANCH, J., and THAPAR, D.J., joined. THAPAR, D.J. (pp. 770–73), delivered a separate concurring opinion.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

While serving a sentence for planting a pipe-bomb in a newspaper vending machine that exploded and killed his stepfather, Marshall Williams mailed a letter containing a white substance purported to be anthrax to the district court judge who denied his habeas corpus petition. Williams proceeded pro se at trial, and a jury convicted him of mailing a threatening communication to a federal judge in violation of 18 U.S.C. § 876(c). The district court proceeded to sentence Williams without first obtaining a presentence report and conducted the hearing by video conference because of concerns that Williams would be difficult to control if brought into the courtroom. Williams raises a host of issues on appeal and after careful review, we conclude that most are not meritorious. However, the district court erred by conducting the sentencing hearing without Williams physically present and without first obtaining a presentence report. Therefore, we AFFIRM Williams's conviction but VACATE his sentence and REMAND for resentencing.

I.

In 1984, a jury convicted Williams of planting a pipe-bomb in a newspaper vending machine, which exploded and killed his stepfather, and the district court sentenced him to 109 years imprisonment. Williams filed several petitions for post-conviction relief contesting his continued incarceration and alleging misconduct by prison officials. Williams filed one of these petitions in the Western District of Tennessee, and it was assigned to Judge Breen. Judge Breen denied the petition on March 21, 2006.

On May 8, 2008, Judge Breen's chambers received an envelope from Williams containing a white substance. The letter stated that the reader had just been exposed to one gram of anthrax, and the building should be cleared immediately. Curiously, the letter also stated, “Do Not Panic, Stay Calm!” The letter was signed by Williams and contained links to websites attempting to garner support for his release. Judge Breen's law clerk discovered this letter and, understandably, did not stay calm. His clerk alerted officials who appear to have relatively quickly determined that the substance was not anthrax but just sugar.

Law enforcement determined that Williams was responsible for mailing the letter and, after a brief investigation, indicted him under 18 U.S.C. § 876(c) for mailing a threatening communication to a federal judge.

The district court appointed counsel to represent Williams. After a psychiatric exam revealed that Williams was competent to stand trial, the district court held a hearing on whether Williams could proceed pro se as he wished. Williams stated that he had several “self-taught” degrees including a juris doctorate. Williams had received a G.E.D. and, for a time, attended Blackstone School of Law in Dallas, Texas where he took courses in evidence, federal jurisdiction, and criminal law and procedure. After thoroughly questioning Williams about his qualifications and ability to represent himself, the district court granted Williams's motion to proceed pro se and appointed “elbow counsel” to assist him. The court granted the motion in part because it realized that Williams's trial strategy would likely put him in conflict with appointed counsel's ethical obligations.

On the day trial commenced, Williams objected to appearing in front of the jury in prison attire and requested that the district court give him a budget to purchase clothing for the trial. The district court explained that it could not provide any funds, but Williams could change into other clothing if someone provided it to him. The district court also admonished the jury not to take Williams's clothing into account.

At trial Williams did not contest that he mailed the letter or that it was sealed in an envelope with a white powder and a warning that it contained anthrax. Williams admitted this in his own testimony, during his closing statement, and in a taped phone conversation that the United States admitted into evidence. After the close of evidence, the jury quickly convicted Williams.

The district court scheduled sentencing for February 24, 2009. At the sentencing hearing Williams's elbow counsel appeared but the Marshals Service did not bring Williams because of concerns that he would be disruptive. The Marshals Service claimed that since his last court appearance Williams had been extremely uncooperative and combative, and had threatened to cause a disturbance at his next court appearance. Because of this, the Marshals Service informed the district court that they would want Williams in full restraints along with three or four officers instead of the normal one or two if Williams needed to be present. The record does not indicate why the restraints and extra guards would not be satisfactory, but the district court determined that it would be best to conduct the sentencing hearing using video conferencing technology without Williams physically present. Williams's elbow counsel did not object.

Williams appeared by video at the sentencing hearing, which was held three days later. The video conference appears to have worked well with all parties able to clearly see and hear each other and Williams did not object to not being physically present in the courtroom. The district court sentenced Williams to five-years imprisonment to run consecutively with his prior 109–year sentence.

Williams's appointed counsel raises six issues on appeal. Williams also submitted a pro se supplemental brief alleging several additional errors in his trial and sentencing.

II.

After trial, the district court held an initial hearing without Williams and decided to conduct his sentencing hearing by video conference. Williams's elbow counsel was present at this conference and did not object to this procedure. Three days later the district court conducted the sentencing hearing by video conference with Williams in prison and “appearing” on a video screen in the courtroom. At the time Williams did not object to not being physically present in the courtroom, but on appeal he argues that this procedure violated his right under Federal Rule of Criminal Procedure 43(a) to be present at sentencing.

A. Standard of Review.

Williams argues that we should review this claim involving an interpretation of the Rules of Criminal Procedure de novo. Cf. United States v. Davidson, 409 F.3d 304, 310 (6th Cir.2005) (reviewing de novo a district court's application of the Federal Rules of Criminal Procedure). Williams did not raise this argument before the district court, and we typically review claims that were not advanced in the district court under the heightened plain-error standard pursuant to Rule 52(b), see, e.g., United States v. Vonner, 516 F.3d 382, 385–86 (6th Cir.2008) (en banc). However, even though plain-error review might have been available for this claim, we will not apply the plain-error standard unless requested to do so by one of the parties. See United States v. McCarty, 628 F.3d 284, 289 (6th Cir.2010); United States v. Salem, 597 F.3d 877, 884 (7th Cir.2010); United States v. Blackie, 548 F.3d 395, 404 (6th Cir.2008) (Sutton, J., concurring) (“The government never asked us to apply plain-error review to this claim, which by itself is reason enough not to apply this standard to the issue.”). Here, the United States did not challenge Williams's assertion that de novo review applied and never argued that this claim should be reviewed for plain error. Instead, the United States argues that any error was harmless. In contrast, the United States did argue that certain of Williams's other claims should be reviewed for plain error. Therefore, because the United States failed to request that we apply plain-error review, it has forfeited any argument that we should apply that standard, and we will review Williams's claim de novo.

B. Whether the District Court Erred by Conducting the Sentencing Hearing by Video Conference.

The district court erred by conducting the sentencing hearing by video conference with Williams not physically present in the courtroom. With certain limited exceptions not applicable here,¹ Rule 43(a) requires that a criminal defendant be present at certain stages of his or her proceedings, including sentencing. Fed.R.Crim.P. 43(a)(3). This requirement comports with the general view adopted by our sister circuits that criminal defendants have a constitutional right to be present at sentencing. See United States v. DeMott, 513 F.3d 55, 58 (2d Cir.2008); United States v. Sepulveda–Contreras, 466 F.3d 166, 169 (1st Cir.2006); United States v. Bigelow, 462 F.3d 378, 381 (5th Cir.2006); United States v. Agostino, 132 F.3d 1183, 1199 n. 7 (7th Cir.1997).

Three different courts of appeal have addressed whether electronic “presence” by video conference at sentencing satisfies the requirements of Rule 43(a), and all have concluded that it does not. See United States v. Torres–Palma, 290 F.3d 1244, 1248 (10th Cir.2002); United States v. Lawrence, 248 F.3d 300, 304 (4th Cir.2001); United States v. Navarro, 169 F.3d 228, 239 (5th Cir.1999). Consistent with the results reached by our sister circuits, we agree that a district court may not conduct a sentencing hearing by video conference. The text of Rule 43 does not allow video conferencing. The structure of the Rule does not support it....