U.S. v. Crosby, 89-5450

• Decision Date: 08 May 1991
• Docket Number: No. 89-5450,89-5450
• Citation: 917 F.2d 362
• Parties: UNITED STATES of America, Appellee, v. Michael J. CROSBY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 362

917 F.2d 362

UNITED STATES of America, Appellee, v. Michael J. CROSBY, Appellant.

No. 89-5450.

United States Court of Appeals Eighth Circuit.

Submitted May 18, 1990.

Decided Oct. 16, 1990.

Rehearing and Rehearing En Banc Denied May 8, 1991.

Mark D. Nyvold, Minneapolis, Minn., for appellant.

James E. Lackner, Minneapolis, Minn., for appellee.

Before JOHN R. GIBSON and FAGG, Circuit Judges, and BRIGHT, Senior Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

Michael J. Crosby did not appear in court on the date set for commencement of his criminal trial, was tried in absentia, and was convicted. The issues in this case revolve primarily around this somewhat unusual circumstance and whether Rule 43 of the Federal Rules of Criminal Procedure applies because Crosby was not present when the trial commenced. We hold that a defendant who does not appear for his criminal trial, including the commencement of it, waives the protections of Rule 43 and the rights incorporated in that rule. We affirm the conviction.

Crosby was charged, together with Martin Cheatham, James Sannes and Jack Cunningham, with numerous criminal offenses arising out of a fraudulent scheme in which customers paid for, but never received, silver commemorative medallions. The facts are set out in detail in United States v. Cheatham, 899 F.2d 747, 748-50 (8th Cir.1990), and for the most part are immaterial to the issues presented in this case. It suffices to say that the case was set for trial on October 12, 1988. Crosby was present at a pretrial conference on August 15, 1988, when the court ¹ advised counsel for all parties of the trial setting. On September 12, 1988, the clerk sent a notice to all counsel confirming the date. On September 30, 1988, Crosby was present at a pretrial conference and, again, the court notified the parties and attorneys of the October 12 trial date. At that time, Crosby's counsel informed the court that he had no objection to the October 12 trial setting. On October 7, the trial court heard various motions which Crosby made through his counsel, and again the trial setting of October 12 was referred to by court and counsel.

On October 12, 1988, Cheatham, Sannes and Cunningham and their counsel appeared, ready for trial. Crosby failed to appear. The district court ordered a warrant issued and executed. As the district court stated in its order entered on October 14, delaying trial until October 17, "all other counsel, all other parties, the judge, all court personnel, and 54 jurors were present and ready to commence trial." United States v. Crosby, No. 3-88 CR 40(1), slip op. at 2 (D.Minn. Oct. 14, 1988). The marshal's office informed the court and counsel it was unable to locate Crosby at his residence. The order delaying trial stated: "[A] search of his residence by the Marshals would indicate that the residence has been abandoned by the defendant Crosby." Id. at 2-3. The district court ordered Crosby's bond of $100,000 forfeited and found that Crosby "deliberately, voluntarily, knowingly, and without justification failed to be present at the designated time and place for the trial of the action." Id. The court further found that no evidence was presented as to the defendant's whereabouts and there was no reasonable probability that he could be located shortly or the trial rescheduled with Crosby in attendance. Id. Observing that the government had listed eighty-three potential witnesses and more than four-hundred proposed exhibits for the trial, the district court found that rescheduling posed extreme difficulties and that undertaking two separate trials would place a substantial burden on the government and the court. The court found that Crosby "voluntarily waived his constitutional right to be present during the trial" of the action and "[t]he public interest in proceeding with the trial in the absence of ... Crosby outweigh[ed] the interest of the defendant Crosby to be present during the conduct of the trial...." Id. at 4.

The trial commenced October 17, and the jury rendered a verdict November 18, 1988, finding Crosby guilty on twenty-five counts of mail fraud. Crosby was arrested on June 14, 1989 and later sentenced to four consecutive five-year terms on twenty-two of the counts; the trial judge suspended imposition of sentence on the three remaining counts, and placed Crosby on five years probation to commence upon completion of the sentences on the other counts, conditioned upon payment of $550,000 restitution to the victims during the period of probation. Insofar as other facts are material to the issues raised, they will be set forth with respect to each of the arguments.

I.

Crosby argues that Rule 43 of the Federal Rules of Criminal Procedure plainly requires his presence at the commencement of trial as a prerequisite to continuing the trial in his absence. ² He argues that Rule 43 incorporates preexisting law as set forth in Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912). In Diaz, a criminal defendant voluntarily absented himself from his own trial on two separate occasions, but nonetheless consented that the trial should proceed without him. Id. at 445. Diaz appealed his conviction on the ground that his absences from trial prevented him from exercising his constitutional right to confront all witnesses who testified against him. The Supreme Court rejected Diaz's claim, relying on the prevailing rule that:

[W]here the offense is not capital and the accused is not in custody, ... if, after the trial has begun in his presence, [the defendant] voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present and leaves the court free to proceed with the trial in like manner and with like effect as if he were present.

Id. at 455, 32 S.Ct. at 254 (citations omitted). Diaz dealt only with the situation where a trial had commenced and the defendant thereafter voluntarily absented himself.

In essence, Crosby's argument is based upon the plain language of Rule 43. Crosby interprets paragraph (b) of Rule 43 to say that before a court can try a criminal defendant in absentia, the defendant must have at least been present at the outset of the trial. Crosby recognizes that a number of other circuits have held contrary to his position, but criticizes the reasoning in those decisions and particularly their treatment of Diaz. He also points to the extreme prejudice resulting from his absence at trial. On the strength of these two points, Crosby asks us to set aside the district court decision and remand this case for a new trial.

This circuit has not yet dealt with the application of Rule 43 where a criminal defendant such as Crosby is tried and convicted in absentia. Other circuits facing the issue have allowed convictions to stand on a theory of waiver. We are persuaded that we should do likewise.

The notes of the advisory committee on rules make clear that the first sentence of Rule 43 is a restatement of existing law. Fed.R.Crim.P. 43, notes of advisory committee on rules (note 1). We are satisfied that the language of Rule 43 does no more than restate the holding in Diaz. The reasoning in Diaz applies equally to the factual circumstances in this case where the defendant fails to appear for commencement of trial, as it does in the situation where the defendant appears at the commencement and then absconds. In both cases, the defendant waives his Rule 43 right to be present during trial when he voluntarily absents himself from the courtroom.

In discussing this issue in Government of the Virgin Islands v. Brown, 507 F.2d 186, 189 (3d Cir.1975), Judge Rosenn pointed out that Rule 43 was merely a paraphrase of the holding in Diaz. In Brown, the defendant was absent from court on the first morning of voir dire. He appeared in court that afternoon, made no explanation for his earlier absence, and observed the remaining voir dire examination without making any objection. Brown was present throughout the remainder of his trial. Following conviction, Brown appealed to the Third Circuit, arguing that conducting the voir dire proceedings of the first morning in his absence violated his constitutional and statutory rights. The Third Circuit rejected his claim, holding that "Brown's willful absence from the voir dire examination ... was knowing and voluntary, and that this voluntary absence was a waiver of both his constitutional and statutory right to be present at the commencement of his trial." Id. at 189.

We agree with Judge Rosenn that there are no talismanic properties "which differentiate the commencement of a trial from later stages." Id. In fact, the voir dire examination is probably not as critical as cross-examination of the key witnesses, which occurs in the later phases of a trial. It would be anomalous to attach more significance to a defendant's absence at commencement than to absence during more important substantive portions of the trial. Id. Judge Rosenn did note that the commencement of trial would take on special significance under the rule if the defendant did not know when the trial was to begin, since in that case he could not be said to have knowingly waived his right to be present. Id. In Brown, however, one of the conditions for the defendant's release on bail was that the defendant appear at the start of the trial. Thus, it was clear that the Brown defendant knew his trial date.

The facts in Crosby's case are identical in many respects to those in Brown. Both defendants were released from custody on bail before their trial. Both voluntarily failed to attend the beginning of trial and neither offered any explanation for his absence. Crosby knew beyond question that his trial would start on October 12. In Crosby's case, as in Brown, the district court painstakingly outlined the times when Crosby received and acknowledged notice of that...