U.S. v. Benavides

Decision Date04 June 1979
Docket Number78-5466,Nos. 78-5464,s. 78-5464
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Damian Pena BENAVIDES, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Nancy L. Benoit, Dallas, Tex. (Court-appointed), for Benavides.

Samuel T. Biscoe, Dallas, Tex. (Court-appointed), for Garcia.

J. A. Canales, U. S. Atty., James R. Gough, George A. Kelt, Jr., Asst. U. S. Attys., Houston, Tex., Robert A. Berg, Asst. U. S. Atty., Corpus Christi, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Texas.

Before GODBOLD, Circuit Judge, SKELTON *, Senior Judge, and RUBIN, Circuit Judge.

ALVIN B. RUBIN, Circuit Judge:

Damian Pena Benavides challenges his convictions for possession with intent to distribute marijuana, a violation of 21 U.S.C. § 841(a)(1), and willfully failing to appear before the district court for trial, in violation of 18 U.S.C. § 3150. Except for the selection of the jury, the trial for possession with intent to distribute marijuana was held in the absence of Benavides and his wife, who was the co-defendant. Both defendants pleaded guilty of failing to appear as part of a plea bargain with the United States Attorney; in this court, Benavides challenges that conviction on the ground that the trial court failed to follow the mandate of Rule 11, F.R.Cr.P. and the prior conviction because the trial was held in his absence. Agreeing with both contentions, we reverse his convictions. 1

Border Patrol agents arrested Benavides and Garcia after a large quantity of marijuana was discovered in their automobile during a search at the Sarita, Texas checkpoint. The defendants exercised their right to a jury trial on the possession charge. Some members of the jury venire live a considerable distance from the courthouse; in order to make maximum use of the jury panel and to avoid requiring the members of the venire to travel unnecessarily, the jury was selected a few weeks before trial. Although the jury selection was not transcribed and made part of the record, no contention is made that the defendants were then absent. The trial judge instructed the jury to return for the trial on November 5, 1976. The record does not indicate whether he specifically informed the defendants, who were not in custody, that they were to return for trial at that time. However, it may reasonably be inferred that the defendants knew that they were to return when the jury reported.

On the trial date, the jury and the attorneys appeared, but the defendants were not in court. Defense counsel informed the court of his efforts to insure that his clients were aware they were required to be present. The trial court continued the case overnight, affording defense counsel additional time to find his clients. When the defendants did not appear in court the next day, the trial judge noted that he believed that the defendants were voluntarily absent and proceeded with the trial without them. 2 The government called three witnesses. The defense attorney cross-examined two of the witnesses, but did not call any witnesses on behalf of his clients. The jury found the defendants guilty, but the court did not sentence them because of their absence.

Approximately two years later, the defendants, who had been in Mexico, returned to the United States and were arrested on the outstanding charge of willfully failing to appear before the district court for the marijuana trial. The defendants decided to plead guilty to the charge in exchange for the prosecutor's recommendation to the court that the sentences for both offenses should be of the same length and run concurrently.

The trial court conducted separate Rule 11 hearings with each defendant. After directing the prosecutor to read the short indictment to each defendant, the court questioned Benavides and Garcia to determine that each defendant knew what rights were being waived by entering a plea of guilty and that there was a factual basis for the plea. The Assistant United States Attorney read the indictment to each defendant, but the court made no further direct attempt to explain the charge or the nature of the requisite element of willfullness. It accepted both pleas of guilty and, subsequently, sentenced the defendants to equal concurrent sentences for each offense. In ascertaining the factual basis for the plea the court did elicit facts from each defendant demonstrating his or her commission of every essential element of the offense. Only Benavides has appealed his convictions to this court.

The propriety of conducting a trial without the defendant's presence is governed by Rule 43, F.R.Cr.P. 3 The Supreme Court upheld the constitutionality of the rule as it then read in Taylor v. United States, 1973, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174. The Court noted that, while the rule guarantees the defendant's right to be present at every stage of the trial, the right may be waived by the defendant's voluntary absence. In this case, the defendants were present when the jury was told the date and time to return for trial. The defense counsel left a message reminding his clients of the trial date with a person who answered the telephone number that he had used in previous communications with Benavides and Garcia. The defendants did not intimate that they did not understand they were required to be present, nor did they offer any reason even remotely suggesting that their absence was less than voluntary either to the district court at sentencing or to this panel. Under these circumstances, the trial court's conclusion that Benavides and Garcia were voluntarily absent was amply supported. See also United States v. Marotta, 9 Cir. 1975, 518 F.2d 681.

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. 7

7. It is difficult for us to conceive of any case where the exercise of this discretion would be appropriate other than a multiple-defendant case.

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,...

To continue reading

Request your trial
55 cases
  • United States v. Hill
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 24 Mayo 2022
    ...in deciding whether to proceed with a trial when a defendant is voluntarily in absentia ..." Id. (quoting United States v. Benavides , 596 F.2d 137, 139 (5th Cir. 1979) (internal quotation marks omitted)). However, Hernandez articulates the standard of review for the continuing of a trial a......
  • Pinkney v. State, 88
    • United States
    • Court of Appeals of Maryland
    • 1 Septiembre 1997
    ...("[C]onsideration of the government's difficulty in reassembling its proof may dictate an immediate trial."); United States v. Benavides, 596 F.2d 137, 140 (5th Cir.1979) (recognizing that, in addition to the factors listed by Tortora, inconvenience to jurors is also a Although not constitu......
  • U.S. v. Latham, 88-1107
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 4 Noviembre 1988
    ...U.S. 956, 93 S.Ct. 300, 34 L.Ed.2d 225 (1972); accord Dasher v. Stripling, 685 F.2d 385, 387 (11th Cir.1982); United States v. Benavides, 596 F.2d 137, 139-40 (5th Cir.1979); United States v. Pastor, 557 F.2d 930, 933-34 (2d Cir.1977); Cureton v. United States, 396 F.2d 671, 676 (D.C.Cir.19......
  • State v. Hudson
    • United States
    • United States State Supreme Court (New Jersey)
    • 30 Mayo 1990
    ...(5th Cir.1983) (vacating defendant's conviction because trial court proceeded without performing further balancing); United States v. Benavides, 596 F.2d 137 (5th Cir.1979) conviction for drug possession where court abused discretion by proceeding with trial in absentia without inquiring in......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT