U.S. v. Fisher, s. 96-30162
| Decision Date | 06 March 1998 |
| Docket Number | 96-30278,Nos. 96-30162,s. 96-30162 |
| Citation | 137 F.3d 1158 |
| Parties | 98 Cal. Daily Op. Serv. 1611, 98 Daily Journal D.A.R. 2261 UNITED STATES of America, Plaintiff-Appellee, v. John Raymond FISHER, Defendant-Appellant, UNITED STATES of America, Plaintiff-Appellee, v. John Raymond FISHER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
George G. Curtis, Portland, Oregon, for appellant.
Leslie K. Baker, Assistant United States Attorney, Portland, Oregon, for appellee.
Appeal from the United States District Court For the District of Oregon; James A. Redden, District Judge Presiding, Malcolm F. Marsh, District Judge Presiding. D.C. Nos. 95-00267-1-JAR, 95-00089-MPFM.
Before: CANBY, T. G. NELSON and KLEINFELD, Circuit Judges.
Opinion by Judge CANBY; Partial Concurrence and Partial Dissent by Judge KLEINFELD.
John Raymond Fisher appeals his jury conviction and resulting sentence for being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g) (1994). He also appeals his separate jury convictions and resulting sentences for contempt of court and failure to appear, violations of 18 U.S.C. §§ 401 and 3146 (1994), respectively. The two appeals have been consolidated. We affirm the conviction and sentence for gun possession, and the conviction for contempt of court. We reverse the conviction for failure to appear. We vacate Fisher's sentence for contempt of court and remand to the district court for resentencing.
Fisher is a convicted felon. During September 1994, Fisher and two other persons were renting a two-bedroom residence on 74th Avenue in Portland, Oregon. A magistrate issued a warrant to search the residence on the basis of a police affidavit. When law enforcement officers executed the search warrant, they discovered six loaded firearms.
A federal grand jury indicted Fisher for being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g). He was then arrested, and the court released him from custody under conditions. Fisher did not comply with the conditions, and left town without notice.
Fisher's original trial date of May 31, 1995 had been continued to June 27, 1995. When Fisher failed to appear at a scheduled pretrial motions hearing on June 16, the district court vacated the June 27 trial date.
Fisher surrendered to authorities in early July. A federal grand jury indicted him for contempt of court and failure to appear, see 18 U.S.C. §§ 401, 3146, and a jury convicted Fisher on both counts. The trial judge sentenced Fisher to two concurrent 33 month prison sentences.
A second jury subsequently convicted Fisher on the gun possession charge. The second trial judge sentenced Fisher to 78 months in prison, to be served consecutively to his two 33 month sentences.
Fisher now raises several challenges to both convictions and to his sentences for contempt and failure to appear. We will set forth the facts in more detail as we discuss each of his contentions.
Fisher's indictment charged him with failing to appear "for pretrial motions and trial" from on or about May 31, 1995 until June 28, 1995. To prove Fisher guilty of violating § 3146, the government was required to prove beyond a reasonable doubt that Fisher "(1) was released pursuant to that statute, (2) was required to appear in court, (3) knew that he was required to appear, (4) failed to appear as required, and (5) was willful in his failure to appear." Weaver v. United States, 37 F.3d 1411, 1413 (9th Cir.1994). Fisher contends that there was insufficient evidence of element (4), because there was never any fixed date on which he was required to appear and did not. We conclude that he is correct.
When Fisher was released after his initial arrest, one of the conditions of his release was that he "appear at all proceedings as required." There is no question that Fisher knew that he was required to appear for his trial scheduled on May 31, 1995. Other conditions of his release required Fisher to maintain contact with pretrial services, to submit to drug testing, and not to change his residence or employment without prior approval of a pretrial services officer. Fisher violated all three of the latter conditions and his pretrial services officer was unable to locate him. A warrant for his arrest was accordingly issued on May 25, 1995.
In the meantime, however, on May 16, Fisher's counsel had moved for a continuance because he needed more time to investigate the case and prepare for trial. The court granted the motion on May 22 and set a new trial date of June 27, 1995. It is not clear whether Fisher received notice of the new trial date, but if he did not, the failure is due to his becoming a fugitive. As a consequence, he is charged with knowledge of that date. See Weaver, 37 F.3d at 1413. Lack of notice is therefore not the problem with Fisher's conviction.
Fisher could not, however, be convicted of failing to appear for trial "as required" on May 31, when trial had been continued to June 27. He simply was not "required" to appear on May 31. 1
On June 8, the trial court set a hearing on pretrial motions for June 16. When Fisher did not appear at that hearing, the trial court vacated the June 27 trial date. Fisher can be charged with notice of the June 16 hearing; any failure on his part to receive notice was a consequence of his fugitive status. See Weaver, 37 F.3d at 1413-14. The crucial question, however, is whether Fisher was required to attend the June 16 hearing. We conclude that nothing in the record indicates that Fisher was required to appear that day.
The district court's minute order setting the June 16 hearing date did not require Fisher to attend. The government argues that Fisher was required to attend by Fed.R.Crim.P. 43(a), which states that "[t]he defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence...." Putting aside for the moment the fact that the Rule appears to be more of a shield for the defendant than a sword for the prosecution, the Rule does not apply in terms to Fisher's pretrial motions hearing. That pretrial hearing was not an arraignment nor did it involve the taking of a plea. We find no authority for considering it a "stage of the trial." Several other circuits have reasoned that, for the purposes of Rule 43, a trial commences when the parties begin jury selection. See United States v. Krout, 56 F.3d 643, 645-46 (5th Cir.1995); United States v. Camacho, 955 F.2d 950, 952-53 (4th Cir.1992); Government of the Virgin Islands v. George, 680 F.2d 13, 15 (3d Cir.1982); United States v. Miller, 463 F.2d 600, 603 (1st Cir.1972). Under this state of the authority we conclude that Fisher was not "required" to attend the pretrial hearing. 2
The district court undoubtedly expected Fisher to attend the pretrial hearing. The court declined to proceed with the hearing in Fisher's absence. Moreover, when the aborted motions hearing ultimately was held, Fisher testified. Nevertheless, the record does not indicate that defendants are uniformly expected to appear at all kinds of pretrial hearings, and no law requires them to do so. A trial court, however, may order a defendant to attend a pretrial hearing. If the trial court had done so in this case, Fisher's conviction for failure to appear would stand. As it is, however, the conviction cannot be upheld on the basis of Fisher's failure to attend the June 16 hearing.
Because Fisher did not attend the June 16 pretrial motions hearing, which he had not been ordered to attend, the trial judge vacated the June 27 trial date. At that point, Fisher was under no order to appear on any date certain. Indeed, Fisher has been charged with knowledge of dates set in his absence; he well might also be charged with knowledge that his June 27 trial date had been vacated. 3 Even if he is not charged with that knowledge, however, the fact remains that his June 27 trial date had been vacated. There was to be no trial at which he was required to appear on that date. The order vacating the trial date relieved Fisher of a duty to appear on that date, just as it relieved witnesses, jurors and attorneys from their duty to appear. There was accordingly insufficient evidence that Fisher failed to appear "as required" for his trial on June 27. Because there is no other evidence of his failure to appear when he was required to do so, we reverse his conviction for that offense.
We reach this conclusion with reluctance on at least two accounts. First, the only reason that the June 27 date did not remain fixed was that Fisher had become a fugitive. But fugitive status alone does not establish a refusal to appear as required. 4 Had Fisher's original continuance been from May 31 to a date in July after he turned himself in, he could not have been charged with failure to appear merely because of his intervening absence. When a defendant's trial date is vacated well in advance of its arrival, we decline to hold that he is "required" to appear on that date for purposes of criminal liability under § 3146. There is a manageable certainty about the requirement that, to be convicted, a defendant must be, on a particular date, under compulsion to appear and then must fail to appear. To expand the requirement so that a defendant may be found guilty for failing to appear on a date when he was not in fact required to appear, but would have been required to appear if he had behaved properly, is to ignore the statutory language "as required" and to inject more uncertainty into the criminal process than it can properly bear.
The second reason why our enthusiasm for our result is limited is that the district court's decision on ...
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