Crosby v. United States
| Citation | 122 L.Ed.2d 25,506 U.S. 255,113 S.Ct. 748 |
| Decision Date | 13 January 1993 |
| Docket Number | No. 91-6194,91-6194 |
| Parties | Michael CROSBY, Petitioner, v. UNITED STATES |
| Court | United States Supreme Court |
Although petitioner Crosby attended various preliminary proceedings, he failed to appear at the beginning of his criminal trial. The Federal District Court permitted the proceedings to go forward in his absence, and he was convicted and subsequently arrested and sentenced. In affirming his convictions, the Court of Appeals rejected his argument that his trial was prohibited by Federal Rule of Criminal Procedure 43, which provides that a defendant must be present at every stage of trial "except as otherwise provided" by the Rule and which lists situations in which a right to be present may be waived, including when a defendant, initially present, "is voluntarily absent after the trial has commenced."
Held: Rule 43 prohibits the trial in absentia of a defendant who is not present at the beginning of trial. The Rule's express use of the limiting phrase "except as otherwise provided" clearly indicates that the list of situations in which the trial may proceed without the defendant is exclusive. Moreover, the Rule is a restatement of the law that existed at the time it was adopted in 1944. Its distinction between flight before and during trial also is rational, as it marks a point at which the costs of delaying a trial are likely to increase; helps to assure that any waiver is knowing and voluntary; and deprives the defendant of the option of terminating the trial if it seems that the verdict will go against him. Because Rule 43 is dispositive, Crosby's claim that the Constitution also prohibited his trial in absentia is not reached. Pp. ____.
951 F.2d 357, reversed and remanded.
Mark D. Nyvold, St. Paul, Minn., appointed by this Court, for petitioner.
Richard H. Seamon, Washington, D.C., for respondent.
This case requires us to decide whether Federal Rule of Criminal Procedure 43 permits the trial in absentia of a defendant who absconds prior to trial and is absent at its beginning. We hold that it does not.
In April 1988, a federal grand jury in the District of Minnesota indicted petitioner Michael Crosby and others on a number of counts of mail fraud. The indictment alleged that Crosby and his codefendants had devised a fraudulent scheme to sell military-veteran commemorative medallions supposedly to fund construction of a theme park honoring veterans. Crosby appeared before a federal magistrate on June 15, 1988, and, upon his plea of not guilty, was conditionally released from detention after agreeing to post a $100,000 bond and remain in the State. Subsequently, he attended pretrial conferences and hearings with his attorney and was advised that the trial was scheduled to begin on October 12.
Crosby did not appear on October 12, however, nor could he be found. United States deputy marshals reported that his house looked as though it had been "cleaned out," and a neighbor reported that petitioner's car had been backed halfway into his garage the previous evening, as if he were packing its trunk. As the day wore on, the court remarked several times that the pool of 54 potential jurors was being kept waiting, and that the delay in the proceedings would interfere with the court's calendar. The prosecutor noted that Crosby's attorney and his three codefendants were present, and commented on the difficulty she would have in rescheduling the case, should Crosby later appear, because some of her many witnesses were elderly and had health problems.
When the District Court raised the subject of conducting the trial in Crosby's absence, Crosby's attorney objected. Nevertheless, after several days of delay and a fruitless search for Crosby, the court, upon a formal request from the Government, decided that trial would commence on October 17. The court ordered Crosby's $100,000 bond forfeited and stated for the record its findings that Crosby had been given adequate notice of the trial date, that his absence was knowing and deliberate, and that requiring the Government to try Crosby separately from his codefendants would present extreme difficulty for the Government, witnesses, counsel, and the court. It further concluded that Crosby voluntarily had waived his constitutional right to be present during the trial, and that the public interest in proceeding with the trial in his absence outweighed his interest in being present during the proceedings. Trial began on October 17, with petitioner's counsel actively participating, and continued in Crosby's absence until November 18, when the jury returned verdicts of guilty on charges against Crosby and two of his codefendants. See United States v. Cheatham, 899 F.2d 747 (CA8 1990). One codefendant was acquitted.
Approximately six months later, Crosby was arrested in Florida and brought back to Minnesota, where he was sentenced to 20 years in prison followed by 5 years on probation with specified conditions. Crosby's convictions were upheld by the Court of Appeals, which rejected his argument that Federal Rule of Criminal Procedure 43 forbids the trial in absentia of a defendant who is not present at the beginning of trial. 917 F.2d 362, 364-366 (CA8 1990). Noting that the other Courts of Appeals that considered the question had found trial in absentia permissible,** the court concluded that the District Court had acted within its discretion in electing to proceed. Id., at 365-366. We granted certiorari. --- U.S. ----, 112 S.Ct. 1261, 117 L.Ed.2d 490 (1992).
Rule 43 provides in relevant part:
The Government concedes that the Rule does not specifically authorize the trial in absentia of a defendant who was not present at the beginning of his trial. The Government argues, nonetheless, that "Rule 43 does not purport to contain a comprehensive listing of the circumstances under which the right to be present may be waived." Brief for United States 16. Accordingly, the Government contends, Crosby's position rests not on the express provisions of Rule 43, but solely on the maxim expressio unius est exclusio alterius. Ibid. We disagree. It is not necessary to invoke that maxim in order to conclude that Rule 43 does not allow full trials in absentia. The Rule declares explicitly: "The defendant shall be present . . . at every stage of the trial . . . except as otherwise provided by this rule" (emphasis added). The list of situations in which the trial may proceed without the defendant is marked as exclusive not by the "expression of one" circumstance, but rather by the express use of a limiting phrase. In that respect the language and structure of the Rule could not be more clear.
The Government, however, urges us to look for guidance at the existing law, which the Rule was meant to restate, at the time of its adoption in 1944. See Advisory Committee's Notes on Fed.Rule Crim.Proc. 43, 18 U.S.C.App., p. 821. That inquiry does not assist the Government. W. Mikell, Clark's Criminal Procedure 492 (2d ed. 1918); accord, Goldin, Presence of the Defendant at Rendition of the Verdict in Felony Cases, 16 Colum.L.Rev. 18, 20 (1916); F. Wharton, Criminal Pleading and Practice 388 (9th ed. 1889); 1 J. Bishop, New Criminal Procedure 178-179 (4th ed. 1895), and cases cited there. The right generally was considered unwaivable in felony cases. Mikell, at 492; Bishop, at 175 and 178. This canon was premised on the notion that a fair trial could take place only if the jurors met the defendant face-to-face and only if those testifying against the defendant did so in his presence. See Wharton, at 392; Bishop, at 178. It was thought "contrary to the dictates of humanity to let a prisoner 'waive that advantage which a view of his sad plight might give him by inclining the hearts of the jurors to listen to his defence with indulgence.' " Ibid., quoting Prine v. Commonwealth, 18 Pa. 103, 104 (1851).
In Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912), a case that concerned a defendant who had absented himself voluntarily on two occasions from his ongoing trial in the Philippines, this Court authorized a limited exception to the general rule, an exception that was codified eventually in Rule 43(b). Because it did " 'not seem to us to be consonant with the dictates of common sense that an accused person, being at large upon bail, should be at liberty, whenever he pleased, to withdraw himself from the courts of his country and to break up a trial already commenced,' " 223 U.S., at 457, 32 S.Ct., at 254, quoting Falk v. United States, 15 App.D.C. 446, 454 (1899), cert. denied, 181 U.S. 618, 636, 21 S.Ct. 923, 45 L.Ed. 1030 (1901), the Court held:
"[W]here the offense is...
To continue reading
Request your trial
-
Glavin v. Clinton
...disenfranchisement grounded on prior conviction of a felony." Id. at 43, 94 S.Ct. 2655. Similarly, in Crosby v. United States, 506 U.S. 255, 113 S.Ct. 748, 122 L.Ed.2d 25 (1993), the Court interpreted a statute requiring the presence of criminal defendants "except as otherwise provided" as ......
-
United States v. Bescond
...such a motion cannot be decided before trial? The trial cannot proceed in the defendant's absence. See Crosby v. United States , 506 U.S. 255, 262, 113 S.Ct. 748, 122 L.Ed.2d 25 (1993) (noting that Rule 43 of the Federal Rules of Criminal Procedure "prohibits the trial in absentia of a defe......
-
Pinkney v. State
...to that trial significantly increases due to the expenditure of judicial and other resources. Crosby v. United States, 506 U.S. 255, 261, 113 S.Ct. 748, 752, 122 L.Ed.2d 25 (1993); see LAFAVE & ISRAEL, supra, § 23.2(b), at Initially, we conclude that the trial court erred in finding a waive......
-
De Vesa v. Dorsey
... ... 533, 538, 62 L.Ed.2d 428, 438 (1979) (Rehnquist, J., concurring) (quoting United States v. Munsingwear, 340 U.S. 36, 41, 71 S.Ct. 104, 107, 95 L.Ed. 36, 42 (1950)). Like the ... ...
-
Defense Counsel, Please Rise': A Comparative Analysis of Trial In Absentia
...MANUAL FOR COURTS-MARTIAL, UNITED STATES, R.C.M. 804(c) (2012) [hereinafter 2012 MCM]. 14 FED. R. CRIM. P. 43(b); Crosby v. United States, 506 U.S. 255 (1993). 15 Kurtis A. Kemper, Annotation, Sufficiency of Showing Defendant’s “Voluntary Absence” from Trial for Purposes of State Criminal P......
-
The Use of Plea Statement Waivers in Pretrial Agreements
...Court relied in part on “except as otherwise provided” language in FRCP 43 to find that an accused could not be tried in absentia . 506 U.S. 255, 258–59 (1993). Although both the Court and FRCP 43 used the word “waiver,” the case was one of forfeiture since the accused had not affirmatively......
-
Washington Defendants' New Right of Pre-trial Flight
...of Hammond and prohibiting starting any trial in the absence of a criminal defendant under CrR 3.4 except in limited circumstances). 20. 506 U.S. 255 21. State v. LaBelle, 18 Wash. App. 380, 387, 568 P.2d 808, 812 (1977) (citing the Magna Carta for early recognition of the right of a crimin......
-
The paradox of delegation: interpreting the Federal Rules of Civil Procedure.
...(citing Note to Federal Rule of Bankruptcy Procedure 9006(b) and Notes to former Bankruptcy Rule 10-401(b)); Crosby v. United States, 506 U.S. 255, 260 (1993) (unanimous decision) (citing Note to Federal Rule of Criminal Procedure (260) Although Justice Scalia has not always adhered to the ......
-
18 APPENDIX U.S.C. § 43 Defendant's Presence
...that the right to be present at trial may be waived through, inter alia, the act of fleeing. See generally Crosby v. United States, 113 S.Ct. 748, 506 U.S. 255 (1993). The amendment extends only to noncapital cases and applies only where the defendant is voluntarily absent after the trial h......