U.S. v. Jones

• Court: U.S. District Court — District of New Mexico
• Writing for the Court: Browning
• Citation: U.S. v. Jones, 410 F.Supp.2d 1026 (D. N.M. 2005)
• Decision Date: 19 October 2005
• Docket Number: No. CR 04-1338 JB.,CR 04-1338 JB.
• Parties: UNITED STATES of America, Plaintiff, v. Signe Inthe JONES, Jr., Defendant.

410 F.Supp.2d 1026

UNITED STATES of America, Plaintiff, v. Signe Inthe JONES, Jr., Defendant.

No. CR 04-1338 JB.

United States District Court, D. New Mexico.

October 19, 2005.

David C. Iglesias, United States Attorney for the District of New Mexico, Elaine Y. Ramirez, Assistant United States Attorney for the District of New Mexico, Albuquerque, NM, for the Plaintiff.

Jacquelyn Robins, Albuquerque, NM, for the Defendant.

MEMORANDUM OPINION AND ORDER

BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant Signe Inthe Jones, Jr.'s Unopposed Motion to Allow Waiver of Right to be Personally Present for Sentencing, filed August 30, 2005 (Doc. 88). The Court held a hearing on this matter on September 6, 2005. The primary issue is whether the Court may sentence the Defendant, Signe Inthe Jones, Jr., via video conferencing. The Court will deny the Defendant's request to be present at sentencing via video conferencing.

PROCEDURAL BACKGROUND

On July 14, 2004, a federal grand jury returned a two-count Indictment against Jones. Jones was charged in Count I of violating 21 U.S.C. § 846, Conspiracy, and in Count II of violating 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2, Possession with Intent to Distribute 500 Grams or More of Cocaine, and Aiding and Abetting. Jones has been in custody since June 23, 2004. See Pre-Sentence Report ¶ 1.

On August 28, 2004, Jones was transferred to the Heart Hospital in Albuquerque, New Mexico, for treatment of fever and myocarditis. See id. at ¶ 53. His condition subsequently worsened, and he was transported to Columbia Care Center in Columbia, South Carolina, where he is still a patient today. See id. at ¶ 54.

On June 1, 2005, Jones entered into a plea agreement. See Jones Plea Agreement (Doc. 68). Jones waived his right to be personally present at the plea hearing. See Jones Waiver of Right to be Present (Doc. 67). The Defendant entered a plea of guilty to Count II of the Indictment before the Honorable Robert H. Scott, United States Magistrate Judge. See Clerk's Minutes (Doc. 65); Jones Plea Agreement (Doc. 68). Judge Scott took the plea by video conference. See Motion to Allow Waiver of Right to be Personally Present for Sentencing ¶ 13, at 3.

Pursuant to rule 43 of the Federal Rules of Criminal Procedure, the Defendant moves the Court to allow him to be present at sentencing via video conferencing. Jones signed a written waiver to be present at sentencing. See Jones Waiver.

LAW REGARDING PRESENCE AT SENTENCING

Rule 43 requires that "the defendant must be present at ... sentencing." Fed. R.Crim. Proc. 43(a)(3). Rule 43 provides several exceptions to the sentencing presence requirement including but not limited to: (i) defendant's written consent for a misdemeanor offense, see Fed. R.Crim. Proc. 43(b)(2); (ii) a sentence correction, see Fed. R.Crim. Proc. 43(b)(4); and (iii) defendant's voluntary absence in a noncapital case, where the defendant was initially present at trial, or who had pled guilty, see Fed. R.Crim. Proc. 43(c)(1)(B).

In United States v. Torres-Palma, 290 F.3d 1244 (10th Cir.2002), the United States Court of Appeals for the Tenth Circuit addressed "the question of whether the use of video conferencing at sentencing violates the provision of Fed. R.Crim. Proc. 43, which requires a defendant to be `present' at imposition of sentence." United States v. Torres-Palma, 290 F.3d at 1245. Judge Porfilio noted that, "[w]hile certain exceptions to that mandate are granted in Rule 43(b), none of them explicitly permits the use of video conferencing." Id. The Tenth Circuit spent considerable time talking about the advantages of video conferencing, about the caseload in New Mexico, and about the limited judicial resources within the District. See generally 290 F.3d 1244. The Tenth Circuit stated that, "[a]lthough convinced of the need for and the benefits of technology to facilitate expeditious disposition of the ever-growing caseload in federal courts," it had to "reluctantly" remand for re-sentencing. Id. at 1245.

Judge Porfilio wrote in sweeping, definite language: "[W]e find ourselves unable to reach any conclusions other than the word, `present,' in the context of Rule 43, means the defendant must be physically present before the sentencing court." Id. Later in the opinion, after finding persuasive the analyses in cases from other circuits, Judge Porfilio stated: "Those analyses will not support a flexible reading of Rule 43...." Id. at 1248. He concluded:

We believe the only relief from this result is a redrafting of the language of Rule 43. Until that time, video conferencing for sentencing is not within the scope of a district court's discretion. Furthermore, Rule 43 vindicates a central principle of the criminal justice system, violation of which is per se prejudicial. In that light, presence or absence of prejudice is not a factor in judging the violation.

Id. The Tenth Circuit then remanded "to the district court for resentencing of the Defendant who shall be in the physical presence of the sentencing judge." Id. at 1249.

In United States v. Lawrence, 248 F.3d 300 (4th Cir.2001), Lawrence appeared in the Columbia, South Carolina courtroom through a video feed from his prison in Florence, Colorado.¹ See United States v. Lawrence, 248 F.3d at 301. Chief Judge Wilkinson, writing for a unanimous panel, held that "presence" in rule 43 means physical presence and remanded the case. Id. The United States maintained "that district courts should have the discretion to permit video teleconferencing when circumstances warrant it." Id. at 304. Chief Judge Wilkerson rejected that argument: "If we were to hold that video teleconferencing satisfies the presence of Rule 43, it would permit the government to substitute such conferencing for physical presence for any defendant at any time for any reason." Id. The Court of Appeals closed by stating:

The United States urges us to create another exception to Rule 43, one that would allow video teleconferencing at the discretion of the district court. We respect the position of the district court, which was understandably concerned that the value of Lawrence's physical presence did not outweigh the risks associated with transporting him. In extreme circumstances such as this, the rule should indeed provide some flexibility. But it does not. We cannot travel where the rule does not go. The rule's general requirement of physical presence in 43(a) is clear, and the exceptions in 43(b) do not apply here. We are left with the principle that imposing punishment on those who break the law must be in accordance with the law. Our system knows no other course.

Id. at 305.

ANALYSIS

There can be little dispute that a court cannot, over a defendant's objection, sentence by video conferencing. The issue is whether the defendant can consent to sentencing by video conferencing. The Court concludes that, under United States v. Torres-Palma, rule 43 does not allow sentencing by video conferencing.

I. RULE 43 DOES NOT ALLOW FOR SENTENCING BY VIDEO CONFERENCING.

Jones contends that the Court should allow him to appear for sentencing via video conferencing because he does not want to risk his health by returning to New Mexico. In support of this contention, the Defendant argues that the Court should allow him to appear via video conferencing under that rule 43(c)(1)(B). Jones asserts that he may waive his presence under that rule because he is explicitly requesting permission in advance and has shown good cause for his request. See Unopposed Motion to Allow Waiver of Right to be Personally Present for Sentencing ¶¶ 16, 17, at 3-4. Jones is not asking the Court to allow him to waive his right to appear altogether at the sentencing, but rather he is essentially asking that this Court allow him to be present at the sentencing by video conference.

The Tenth Circuit has stated that a district court has no discretion to use video conferencing for sentencing. See United States v. Torres-Palma, 290 F.3d at 1248. The Court in Torres-Palma held that "present" for purposes of sentencing equated to physical presence. See id. at 1245. Thus, to be present for sentencing, a defendant's body must actually be present in the courtroom. This plain directive does not allow the Court to exercise its discretion to allow Jones to appear via a video conference. Although the precise issue before the Court in Torres-Palma was whether video conferencing could be used to satisfy the presence requirement under rule 43(a)(3), see United States v. Torres-Palma, 290 F.3d at 1245, and not when a defendant could waive the presence requirement under rule 43(c)(1)(B), the blanket language used by the Tenth Circuit leaves this Court no discretion to allow sentencing via a video conference.

While the Tenth Circuit's construction of rule 43 in Torres-Palma should be enough for the District Court, the Court also notes that the rules expressly authorize video conferencing in two situations: (i) arraignment, see Fed R.Crim. Proc. 10(c); and (ii) initial appearance, see Fed. R.Crim. Proc. 5(f).

That the rules recognize it in these situations, but not here also supports the conclusion that video conferencing for sentencing is not available. Rule 10(c) and rule 5(f) create a particular problem for Jones' argument. Rule 43(a)(1) requires that the defendant be present at arraignment and at initial appearance. Rule 10(c) however, provides: "Video Teleconferencing. Video teleconferencing may be used to arraign a defendant if the defendant consents." Rule 5(f) provides: "Video Teleconferencing. Video teleconferencing may be used to conduct an appearance under this rule if the defendant consents." If the drafters wanted to allow video conferencing for the precise situation here, they knew how to do it; the fact that they did not do so suggests that the Court should not create a provision similar to rule 10(c) and rule 5(f) for rule 11 (Pleas) and for ...