U.S. v. Edmondson

• Decision Date: 22 July 1998
• Docket Number: No. 4:96-CR-63.,4:96-CR-63.
• Citation: 10 F.Supp.2d 651
• Parties: UNITED STATES of America, Plaintiff, v. Samuel Pasqual EDMONDSON and Salvador Vargas Navarro, Defendants.
• Court: U.S. District Court — Eastern District of Texas

10 F.Supp.2d 651

UNITED STATES of America, Plaintiff, v. Samuel Pasqual EDMONDSON and Salvador Vargas Navarro, Defendants.

No. 4:96-CR-63.

United States District Court, E.D. Texas, Sherman Division.

July 22, 1998.

Thomas Scott Smith, Sherman, TX, Charles E. Chatman, McKinney, TX, for Samuel Pasqual Edmondson.

George Patrick Black, Federal Public Defender, Tyler, TX, for Salvador Vargas Navarro.

William Reid Wittliff, U.S. Attorney's Office, Sherman, TX, for U.S.

COURT'S FINDINGS REGARDING SENTENCING BY VIDEO CONFERENCE

SCHELL, Chief Judge.

I. BACKGROUND OF THIS CASE

On December 12, 1996, a federal grand jury returned a two-count indictment against Samuel Pasqual Edmondson (Edmondson), Salvador Vargas Navarro (Navarro), and Guadalupe Plascencia Lopez (Lopez). Count 1 charged the defendants with conspiracy to possess methamphetamine with the intent to distribute or dispense the drug, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2. Count 2 charged the defendants with possession with the intent to distribute or dispense more than 100 grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Edmondson and Navarro proceeded to a jury trial on June 9, 1997. The jury found each defendant guilty on both counts.

On September 24, 1998, this court sentenced the defendants in the above-styled case. The sentencing was conducted via live video conference. Edmondson was sentenced to incarceration for life on Count 1 of the indictment, to run concurrently to a life sentence on Count 2. Navarro was sentenced to 360 months imprisonment on each of Counts 1 and 2, to be served concurrently. At the sentencing, Edmondson orally objected to the sentencing being conducted via video conference. In the interests of clarity, this court finds it necessary to enter findings on this issue.

II. ANALYSIS OF FED.R.CRIM.P. 43

Federal Rule of Criminal Procedure 43(a) requires that the defendant "be present" at his own sentencing. FED.R.CRIM.P. 43(a).¹ Rooted in several common law and constitutional precepts, Rule 43 essentially manifests a long-held precept of the law: after an indictment is handed down, "nothing shall be done in the absence of the prisoner." Lewis v. United States, 146 U.S. 370, 372, 13 S.Ct. 136, 137, 36 L.Ed. 1011 (1892); see also United States v. Gordon, 829 F.2d 119, 122-124 (D.C.Cir.1987) (discussing the history and protections included in Rule 43(a)). The scope of the rule is broader than normal due process protections. Gordon, 829 F.2d at 123. Further, the rule has been interpreted strictly. United States v. Behrens, 375 U.S. 162, 165, 84 S.Ct. 295, 296-97, 11 L.Ed.2d 224 (1963) (combining the right of presence under Rule 43 with the right of allocution under Rule 32). In the context of a sentencing, one justice referred to it as "[t]he elementary right of a defendant to be present at the imposition of sentence and to speak in his own behalf ..." Id. at 167-68 (Harlan, J., concurring).² The question here is whether a defendant is present under Rule 43(a), when the proceeding is conducted via live video conference. The court is persuaded that the answer is yes.

Rule 43(a) requires that the defendant be "present." The court is of the opinion that the video conference technology used in this case satisfies Rule 43. The video conference technology used by the court in this case allows for real-time communication between the court and the defendant. The judge can both see and hear the defendant, and the defendant can see and hear the judge. The defendant is at all times aware of, and a party to, the proceedings. Moreover, the defendant is not absent, physically or mentally. Other cases examining whether a sentencing or other proceeding was invalid on the basis of Rule 43, which involved defendants who were physically absent from the proceedings in question, are distinguishable from the present case. Behrens, 375 U.S. at 163-64 (neither defendant nor defendant's counsel were present); United States v. Rodriguez, 23 F.3d 919, 920 (5th Cir.1994) (discussing "presence of the defendant" under Rule 43, where defendant was physically absent from the courtroom); United States v. Moree, 928 F.2d 654 (5th Cir.1991) (same); see also United States v. Tolson, 129 F.3d 1261, 1997 WL 712922 (4th Cir.1997) (same) (unpublished disposition); cf. United States v. Baker, 45 F.3d 837, 845-848 (4th Cir.) (approving the use of video conferencing in involuntary commitment proceedings and examining the relevant distinctions between civil commitment and criminal punishment), cert. denied, 516 U.S. 872, 116 S.Ct. 194, 133 L.Ed.2d 130 (1995). Here, the defendant was not physically absent. To the contrary, he was present in the video conference room in Sherman, Texas, and could witness the entire proceedings.

The court is aware that in Valenzuela-Gonzalez v. United States, 915 F.2d 1276, 1280 (9th Cir.1990), the Ninth Circuit disapproved of the use of video conferencing for arraignments under FED.R.CRIM.P. 10 and 43. Rule 10 states that arraignments must be held "in open court." FED.R.CRIM.P. 10. Rule 43 does not contain the "in open court" language. Whether or not this video conference procedure satisfies the "open court" requirement of Rule 10 is not before the court.³ Nevertheless, the Ninth Circuit stated that either Rule 10 or Rule 43 could serve as a ground for disqualifying the use of video conferencing. Valenzuela-Gonzalez, 915 F.2d at 1281 (use of video conference is not substantial compliance with either Rule 10 or Rule 43). The court apparently based its decision on the "plain language" of Rule 43(a), and determined that such language required the defendant to be in the same room as the court for the arraignment. Id. Therefore, this court must determine whether to follow the Ninth Circuit's interpretation of Rule 43(a). The court declines to do so.

Webster's unabridged dictionary carries several definitions of the word "present."⁴ The following definition appears in the fourth listing for the word:

present ... 2a: being in one place and not elsewhere: being within reach, sight, or call or within contemplated limits: being in view or at hand: being before, beside with, or in the same place as someone or something....

WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (UNABRIDGED) 1793 (1967). Further, Blacks' Law Dictionary defines the relevant version of "present" as follows: "Now existing; at hand; relating to the present time; considered with reference to the present time." BLACKS' LAW DICTIONARY 1183 (6th ed.1990).

In this case, the video conference technology allowed the defendant to be present in such a way that satisfied all of the definitions listed above. The defendant was not elsewhere, such as a jail cell or a room where he was unable to hear and see what occurred at the sentencing. He not only watched the sentencing, he participated in it. He was able to affect the proceedings and his own fate in an immediate manner. He was within the call and sight of the court at all times, and the court was within the defendant's call and sight at all times. The defendant was not only at hand, he was actually before the court. He was not absent from the court or from the proceedings. His ability to affect the proceedings, confer with counsel, and to hear and see argument was completely unrestricted. In short, he was as present as if he and the court were in the same room.

The court could find no federal district court or appellate case, including Valenzuela-Gonzalez, that attempted to define the word "present" under Rule 43(a). An opinion from the United States Army Court of Criminal Appeals does attempt a definition, however, under a similar rule invoked in courts-martial. United States v. Reynolds, 44 M.J. 726, 728-29 n. 1 (1996) (construing the meaning of "presence" and "present" under Rule for Courts-Martial 804(a), described by the court as "very similar" to FED.R.CRIM.P. 43(a)).

In Reynolds, the court-martial conducted pre-trial proceedings via telephonic conference, not via video conference. Thus, during the proceedings the court and the defendant could not see one another. Id. at 729 n. 4. The court of appeals consulted a definition of "present" similar to that quoted above and concluded that the relevant provisions "appear to require that the military judge, accused, and counsel all [appear in] one location for the purpose of a court-martial." Id. at 729. Among the fears of the appeals court was the court's inability to read the body language of the defendant, to determine whether the defendant truly understood the nature of the proceedings, and the public appearance of a military court conducting a session over the telephone. Id. at 729 n. 4.

Here, the proceeding was conducted via video conference, not by telephone. The court has no doubt that a proceeding via telephone would violate Rule 43(a), since the entire meaning of the word "present" conveys an immediate and instant ability to see as well as hear, to be "at hand." Therefore, Reynolds is distinguishable on its facts. Further, the U.S. Army Court of Appeals' decision seems based on two main factors: the Ninth Circuit decision in Valenzuela-Gonzalez, and the fact that the participants in the court-martial could not see one another. This court has already distinguished Valenzuela-Gonzalez, and the second concern is not an issue with video conference since all participants can see one another fully.

Therefore, for the reasons detailed above, the court declines to follow Valenzuela-Gonzalez and Reynolds. The court finds that the defendant was present at his own sentencing, as required by Federal Rule of Criminal Procedure 43(a).

III. SIXTH AMENDMENT CONFRONTATION CLAUSE

Having determined that the defendant was present under Rule 43(a), there may be no need for further analysis. However, some confusion may result from another extant case involving the Sixth Amendment confrontation clause. The right to confrontation is similar to, but not the same as, the...