U.S. v. Beltran-Nunez

• Decision Date: 22 September 1983
• Docket Number: No. 82-1440,D,BELTRAN-NUNE,82-1440
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joelefendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 287

716 F.2d 287

UNITED STATES of America, Plaintiff-Appellee, v. Joel BELTRAN-NUNEZ, Defendant-Appellant.

No. 82-1440.

United States Court of Appeals Fifth Circuit.

Sept. 22, 1983.

Robert R. Harris, (Court-appointed), El Paso, Tex., for defendant-appellant.

Sidney Powell, Asst. U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before RUBIN, TATE and JOLLY, Circuit Judges.

TATE, Circuit Judge:

Joel Beltran-Nunez challenges his convictions for conspiracy to transport illegal aliens into the United States in violation of 18 U.S.C. Sec. 371 and 8 U.S.C. Sec. 1324(a)(4) and transporting illegal aliens within the United States in violation of 8 U.S.C. Sec. 1324(a)(2). On appeal, Beltran contends that his convictions must be set aside since the trial, except for the selection of the jury, was held in his absence and since he was denied effective assistance of counsel. Because we feel that our decision in United States v. Benavides, 596 F.2d 137 (5th Cir.1979) so requires with regard to Beltran's first contention, we vacate his convictions and remand for a new trial, and do not reach the question of effective assistance of counsel.

On April 25, 1978, agents of the Immigration and Naturalization Service arrested Beltran and two other men outside of an El Paso hotel in which thirteen illegal aliens were found. Beltran was charged with one count of conspiracy to transport illegal aliens into the United States and four counts of transporting and moving illegal aliens within the United States. Beltran requested a jury trial on these charges. On July 13, 1978, the jury was selected in the defendant's presence and instructed to return to court on July 18, 1978, the date on which Beltran's trial was scheduled to take place. Although the defendant was not present in court when the judge and his attorney set the trial date, the record indicates that he was present when the court informed the jury that his trial would be held on July 18, 1978. Thus, we will assume that the defendant knew that he should return to court on July 18, 1978. ¹

On the date of the trial, the jury, the attorneys and the witnesses appeared in court, but Beltran did not. Beltran's attorney informed the court that the defendant's family had been present in the court, but that he could not locate the defendant. The judge stated that he intended to proceed with the trial in Beltran's absence, and that he would revoke the defendant's bond if he did not appear in court prior to the first break. Beltran's attorney did not object to this procedure. ²

The trial proceeded and was concluded by a jury verdict that same afternoon. The government called six witnesses in support of its case. Beltran's attorney cross-examined five of these witnesses, but did not call any witnesses for the defense. After the testimony of five of the government's witnesses, the court again inquired as to the defendant's whereabouts in the following exchange:

THE COURT: ... Now, the defendant is not here yet?

MR. REY: No, Your Honor.

THE COURT: Do you have anything further that you want to tell me about the status of the defendant?

MR. REY: I just now spoke to his wife, and she just--he was in front of my office, said he was going to go to his work to pick up some workers, and that was it. She said if she had a car right now, she would go over to where he worked to see if he's gone there. He was here, he was dressed well. I saw him this morning, dropped his family off.

THE COURT: The Court will find that the defendant was fully aware of trial, that as a matter of fact, late yesterday afternoon, it was contemplated that the defendant might, in fact, plead guilty to all five counts of the indictment, but that he informed his attorney that he would not. The Court will find that his family is present in the courtroom, and the defendant has voluntarily absented himself, and I will here and now revoke the bond heretofore allowed to Mr. Joel Beltran-Nunez. I will order that arrest--a bench warrant be issued for his arrest, and that the new bond be made in the amount of $100,000 cash or corporate surety.

The only other reference in the record to the defendant's absence was made by the court just prior to its instructions to the jury. The judge asked Beltran's attorney if he recalled the court making a finding on the record that Beltran "had voluntarily absented himself" from the trial. In response to this inquiry, the defendant's attorney assured the judge that he had made such a finding. ³ The jury found the defendant guilty on all five counts and the court set a date for sentencing.

The defendant was not sentenced, however, until he surrendered to the authorities some four years later. The court imposed a sentence of five years in prison on each of the five counts, to be served concurrently, and the defendant appealed.

Fed.R.Crim.P. 43(b) provides that a district court may proceed with a trial when a defendant who is initially present "voluntarily absents himself after the trial has commenced." Fed.R.Crim.P. 43(b); see Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973) (upholding the constitutionality of Rule 43 as it then read). In this case, the district court's finding that Beltran voluntarily absented himself from the trial was supported by the evidence.

We have held, however, that this finding alone will not suffice. In United States v. Benavides, 596 F.2d 137 (5th Cir.1979), we explained that a trial court must consider other factors before taking the severe step of holding a criminal trial in the defendant's absence:

The finding that the defendants' absence was voluntary should not have abruptly ended the court's inquiry. In Smith v. United States, 5 Cir.1966, 357 F.2d 486, 490, we noted that the court has "only a narrow discretion" in deciding whether to proceed with a trial when the defendant is voluntarily in absentia because the right to be present at one's own trial must be carefully safeguarded. Compare United States v. Davis, 7 Cir.1973, 486 F.2d 725, 727, cert. denied, 1974, 415 U.S. 979, 94 S.Ct. 1569, 39 L.Ed.2d 876.

While the Fifth Circuit has not had occasion to discuss further how the trial court should exercise that narrow discretion, a test was most articulately stated by the Second Circuit in United States v. Tortora, 2 Cir.1972, 464 F.2d 1202, 1210, cert. denied, 409 U.S. 1063, 93 S.Ct. 554, 34 L.Ed.2d 516:

Whether the trial will proceed will depend upon the trial judge's determination of a complex of issues. He must weigh the likelihood that the trial could soon take place with the defendant present; the difficulty of rescheduling, particularly in multiple-defendant trials; the burden on the Government in having to undertake two trials, again particularly in multiple-defendant trials where the evidence against the defendants is often overlapping and more than one trial might keep the Government's witnesses in substantial jeopardy.

* * *

Accord, United States v. Pastor, 2 Cir.1977, 557 F.2d 930, 934; United States v. Schwartz, 2 Cir.1976, 535 F.2d 160, 165, cert. denied, 1977, 430 U.S. 906, 97 S.Ct. 1175, 51 L.Ed.2d 581; United States v. Peterson, 4 Cir.1975, 524 F.2d 167, 185, cert. denied, 1976, 423 U.S. 1088, 96 S.Ct. 881, 47 L.Ed.2d 99, and 424 U.S. 925, 96 S.Ct. 1136, 47 L.Ed.2d 334.

This analysis is cogent. It fails to mention expressly inconvenience to jurors, which we would add to the considerations; but, with this addition, we agree with it.

Benavides, supra, 596 F.2d at 139-40.

The analysis required by Benavides ensures that a court will not proceed with a trial in the defendant's absence without first making an inquiry "into whether or not the trial could soon be rescheduled with the defendant in attendance." Benavides, supra, 596 F.2d at 140. A later finding that the defendant was indeed a fugitive during his absence cannot excuse the failure to make this inquiry, for "the validity of the court's exercise of its discretion does not turn on whether subsequent events prove or disprove unsupported judgments." Benavides, supra, 596 F.2d at 140. We note further that the careful analysis required by Benavides before a court proceeds with a criminal trial in absentia is in accord with the requirement in other circuits. See United States v. Lochan, 674 F.2d 960, 967-68 (1st Cir.1982); United States v. Pastor, 557 F.2d 930, 934 (2d Cir.1977); United States v. Peterson, 524 F.2d 167, 185 (4th Cir.1975), cert. denied, 423 U.S. 1088, 96 S.Ct. 881, 47 L.Ed.2d 99 (1976) ⁴.

Applying the Benavides analysis to the present case, we find that the decision to proceed with the trial in Beltran's absence, without further inquiry, was an abuse of the trial court's narrow discretion. At the time that the court noted the defendant's absence, it took no affirmative steps to ascertain whether the accused might be readily located, and it made no inquiry into the possibility of delaying the commencement of the trial slightly or of rescheduling the trial in order to obtain his attendance.

The teaching of Benavides and the cited jurisprudence of other circuits is that the important constitutional right of a criminally accused to be present at his trial cannot cursorily, and without inquiry, be deemed by the trial court to have been waived simply because the accused is not present when he should have been. Before exercising its narrow discretion to commence or continue the trial in the defendant's absence, the trial court must at the time make a record inquiry to attempt to ascertain the explanation for the absence of the accused and whether, balancing the likelihood that the trial could soon take place with the defendant's presence against the undue inconvenience or prejudice occasioned by a slight delay or a rescheduling of the trial, the district court could properly exercise its narrow discretion to commence or continue the trial in the...