U.S. v. Mackey

• Decision Date: 20 September 1990
• Docket Number: No. 1206,D,1206
• Citation: 915 F.2d 69
• Parties: UNITED STATES of America, Appellee, v. Anthony P. MACKEY, et al., Defendants. Appeal of Sean M. Jackson, Defendant. ocket 89-1643.
• Court: U.S. Court of Appeals — Second Circuit

Page 69

915 F.2d 69

UNITED STATES of America, Appellee, v. Anthony P. MACKEY, et al., Defendants Appeal of Sean M. Jackson, Defendant.

No. 1206, Docket 89-1643.

United States Court of Appeals Second Circuit.

Argued May 11, 1990.

Decided Sept. 20, 1990.

Patricia L. Countryman, Altamont, N.Y., for defendant-appellant.

Bernard J. Malone, Jr., Asst. U.S. Atty., N.D.N.Y., Albany, N.Y. (Frederick J. Scullin, Jr., U.S. Atty., N.D.N.Y., Syracuse, N.Y., of counsel), for appellee.

Before ALTIMARI and MAHONEY, Circuit Judges, and POLLACK, District Judge. ^*

MAHONEY, Circuit Judge:

Defendant-appellant Sean M. Jackson appeals from a judgment of the United States District Court for the Northern District of New York (George E. Woods, Judge, of the Eastern District of Michigan, sitting by designation) convicting him after a jury trial of conspiracy to possess with intent to distribute cocaine base, or crack, a Schedule II controlled substance, in violation of 21 U.S.C. Sec. 846 (1988). Jackson was acquitted at trial of the two substantive charges against him: distribution of cocaine base in violation of 21 U.S.C. Sec. 841(a)(1) (1988) and 18 U.S.C. Sec. 2 (1988), and possession of cocaine base with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) (1988) and 18 U.S.C. Sec. 2 (1988).

On this appeal, Jackson contends that in proceeding with the trial in his absence, without a knowing and voluntary waiver on his part, the district court violated his right to be present during trial, resulting in prejudicial error. For the reasons stated below, we reverse the judgment of conviction against Jackson and remand for a new trial.

BACKGROUND

On July 17, 1989, Sean M. Jackson was arrested for allegedly participating, together with Anthony P. Mackey, in the sale of fifty vials of cocaine base, or crack, to an undercover officer in Catskill, New York on June 8, 1989. An indictment filed July 28, 1989 stated three counts against Jackson and Mackey: (1) conspiracy to possess with intent to distribute cocaine base, or crack, in violation of 21 U.S.C. Sec. 846 (1988); (2) distribution of cocaine base in violation of 21 U.S.C. Sec. 841(a)(1) (1988) and 18 U.S.C. Sec. 2 (1988); and (3) possession of cocaine base with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) (1988) and 18 U.S.C. Sec. 2 (1988).

The defendants were tried jointly in the United States District Court for the Northern District of New York in Albany, New York before Lee P. Gagliardi, Judge, from October 5-10, 1989. Jackson was then in the custody of the United States Marshal pursuant to a writ of habeas corpus ad prosequendum issued to the Sheriff of Greene County, New York, where Jackson had been incarcerated pending disposition of state charges against him, and appeared at every stage of the proceedings in his first trial. The jury returned a verdict of guilty on all counts against Mackey, but was unable to reach a verdict as to Jackson, resulting in a mistrial.

Jackson's attorney was notified during the week of October 16, 1989 that Jackson's retrial would commence in Utica, New York, at 8:30 a.m. on October 23, 1989. Jackson's attorney so advised Jackson on October 20, 1989, communicating with him by telephone at his grandmother's home in Catskill, New York, where Jackson was living. On the evening of October 22, 1989, Jackson called his attorney and advised her that he was having difficulty obtaining a ride for the next morning from Catskill to Utica, a distance of approximately After a recess for lunch, with Jackson still absent, Jackson's attorney put her request for an adjournment on the record. Jackson's counsel pointed out the telephone calls from Jackson concerning lack of transportation, and further stated, "He doesn't have a driver's license and he is of a low socioeconomic status and he doesn't have the money to take a cab and hire someone, and I guess he is just experiencing trouble getting here this morning and this afternoon." Government counsel agreed that it might be appropriate for further proceedings to await Jackson's arrival, either on his own accord or in the custody of a marshal, but noted that the court "had a complete jury panel sitting here awaiting his trial."

110 miles. The next morning, at approximately 7:45 a.m., Jackson called the office of the clerk of the court in Utica to report that he had been unable to obtain transportation. According to appellant's brief, Jackson's counsel then told him that she would send someone to Catskill to get him. Prior to any proceedings in the trial, before any court reporter was present, Jackson's attorney requested that the trial be adjourned until Jackson arrived. The court delayed the commencement of jury selection until approximately 11:00 a.m. Jury selection was then completed in Jackson's absence at about 12:30 p.m.

The court continued its refusal to adjourn, but agreed to further delay the proceedings by not taking testimony in the case until 1:50 p.m. that afternoon, adding that if Jackson arrived later in the afternoon, the court reporter would be made available to Jackson and his counsel to read back the testimony taken in Jackson's absence. The court then concluded: "The animals do not run the zoo. That's the simple answer. So then, your motion is denied and we will proceed. See you at ten minutes to two." The court reconvened at 1:55 p.m., at which time the government called its first witness, New York State Police investigator Daniel R. Penny. Jackson was still absent. At approximately 2:50 p.m., during the testimony of the government's second witness, Drug Enforcement Administration Agent Michael Metzger, Jackson arrived in the courtroom. In sum, Jackson missed the jury selection and approximately one hour of the proceedings, including all of the testimony of the government's first witness and a portion of the testimony of its second witness.

After the close of testimony that afternoon, the court gave Jackson and his attorney the opportunity to have the prior proceedings read back, as well as to recall the first two witnesses if Jackson so desired. They took advantage of the former offer, but not the latter. Before adjourning for the day, the court asked Jackson what his intentions were with respect to accommodations for the evening and returning to court the next day. Jackson indicated that he would return to Catskill and be back the following morning, assuring the court that he had "a definite ride" with a witness who had just testified. The court released Jackson on a $10,000 personal recognizance bond, admonishing him, "If you're not here, there is nothing but trouble."

On October 24, 1989, the trial proceeded without incident in the presence of the defendant. The jury began its deliberations at 11:36 a.m., and at 6:10 p.m. court adjourned. When court convened at 8:15 a.m. on the third day, October 25, 1989, however, Jackson had not arrived, having previously telephoned the clerk's office to advise his attorney and the court that the vehicle transporting him from Catskill had broken down. The jury continued deliberating without knowledge of Jackson's absence, and reached its verdict at 8:35 a.m., which was thereupon returned in Jackson's absence. Jackson's bail was revoked and the court issued a warrant for his arrest, as Jackson learned when he finally arrived at 11:00 a.m.

Jackson subsequently moved for a judgment of acquittal pursuant to Fed.R.Crim.P. 29 and for a new trial pursuant to rule 33, based, inter alia, upon the district court's failure to postpone the trial until such time as Jackson could be present for every stage thereof. The district court denied the motions on November 7, 1989, concluding that (1) Jackson had voluntarily waived his right to be present; (2) the On November 29, 1989, the court sentenced Jackson to thirty-three months imprisonment, to be followed by three years of supervised release, together with a fifty dollar special assessment. Jackson filed a notice of appeal on December 6, 1989. A motion for release pending appeal was denied on January 9, 1990, and Jackson is currently serving his sentence.

reasons given for Jackson's absences, transportation problems, were not sufficient; (3) the public interest justified proceeding with the trial in Jackson's absence; and (4) any error committed was harmless.

DISCUSSION

A. A Defendant's Right to Be Present at Trial.

Jackson contends on appeal that the trial court abused its discretion in proceeding with the trial in his absence. As Jackson correctly points out, "an accused enjoys a right both at common law and pursuant to the sixth amendment's confrontation clause to be present at all stages of trial." United States v. Fontanez, 878 F.2d 33, 35 (2d Cir.1989) (citing Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353 (1970); Lewis v. United States, 146 U.S. 370, 373, 13 S.Ct. 136, 137, 36 L.Ed. 1011 (1892); Schwab v. Berggren, 143 U.S. 442, 448, 12 S.Ct. 525, 527, 36 L.Ed. 218 (1892); United States v. Hernandez, 873 F.2d 516, 518 (2d Cir.1989); and United States v. Pastor, 557 F.2d 930, 933 (2d Cir.1977)). Moreover, the defendant's right to be present at trial also is implicated by the fair trial concerns of the fifth and fourteenth amendments, " 'to the extent that a fair and just hearing would be thwarted by his absence.' " Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 2667, 96 L.Ed.2d 631 (1987) (quoting Snyder v. Massachusetts, 291 U.S. 97, 108, 54 S.Ct. 330, 333, 78 L.Ed. 674 (1934)); see also Hernandez, 873 F.2d at 518. Finally, this right has been codified in Fed.R.Crim.P. 43, see United States v. Reiter, 897 F.2d 639, 642 (2d Cir.1990), subdivision (a) of which provides: "The 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, except as otherwise provided by this rule."

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