U.S. v. Sanchez, 293

• Decision Date: 12 May 1986
• Docket Number: D,No. 293,293
• Citation: 790 F.2d 245
• Parties: UNITED STATES of America, Appellee, v. Ramon SANCHEZ, Defendant-Appellant. ocket 85-1141.
• Court: U.S. Court of Appeals — Second Circuit

Page 245

790 F.2d 245

UNITED STATES of America, Appellee, v. Ramon SANCHEZ, Defendant-Appellant.

No. 293, Docket 85-1141.

United States Court of Appeals, Second Circuit.

Argued October 23, 1985.

Decided May 12, 1986.

Phylis Skloot Bamberger, Legal Aid Society, Federal Defender Services Unit, New York City, for defendant-appellant.

Elliott B. Jacobson, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., S.D. of N.Y., Kenneth Roth, Asst. U.S. Atty., New York City, of counsel), for appellee.

Before PIERCE, WINTER, and MINER, Circuit Judges.

PIERCE, Circuit Judge:

This is an appeal from a judgment of the United States District Court for the Southern District of New York, Robert L. Carter, Judge, entered as to Ramon Sanchez on April 16, 1985, after a jury trial in absentia on November 8, 1984, convicting him and a co-defendant of conspiring to distribute and to possess with intent to distribute cocaine in violation of 21 U.S.C. Sec. 846, and of possessing with intent to distribute and distributing cocaine in violation of 21 U.S.C. Secs. 812, 841(a)(1) and 841(b)(1)(A) and 18 U.S.C. Sec. 2.

Appellant argues principally that it was error for the district court to proceed with the trial in his absence; that the district court's instructions relating to his absence from trial were prejudicial; and that his trial lawyer's failure to make opening or closing statements or objections to the admission of evidence or to cross-examine witnesses violated his constitutional right to effective assistance of counsel.

We hold that the district judge did not abuse his discretion in ordering the trial in absentia; that it was harmless error to give a "flight" instruction under the circumstances; and that the defendant was not denied effective assistance of counsel under the Sixth Amendment. We affirm.

BACKGROUND

Ramon Sanchez was arrested by New York City police officers on August 21, 1984, following a drug transaction that he allegedly facilitated between an undercover agent and Sanchez's co-defendant, Fidel The district court's findings make clear that, on September 25, 1984, at the only pretrial conference before the district judge, Garcia was absent, but his attorney, Stone, was present. Sanchez's lawyer, Gross, was not present at the first call of the calendar but was present at the second call. Sanchez had been taken from his cellblock to the courtroom that morning, and was present when his case was called and the trial date set for November 7, 1984. ¹ The record does not indicate where Sanchez was located in the courtroom, or that an interpreter was present, or that there was any communication with or acknowledgment of Sanchez by the district judge. Mr. Gross protested that he had met with his client only once, had not yet examined the indictment, and had not yet determined how he would proceed. The district judge directed that any motions be filed by October 12, 1984. None were filed. On October 15, 1984, Sanchez was released on $1,000.00 bail. The record indicates that on October 16, 1984 Sanchez was rearrested on a separate federal narcotics charge. Having failed to appear in that case, he was ultimately arrested on a bench warrant on February 2, 1985, following which he pleaded guilty to an information and was sentenced. ²

Garcia. The defendants were indicted on September 4, 1984. On September 13, Lawrence Gross, Esq., was assigned as counsel for Sanchez, and Joseph Stone, Esq., as counsel for Garcia.

In the instant case, on the scheduled trial date, November 7, 1984, co-defendant Garcia and the two defense lawyers were present, but Sanchez was not. The case was called at approximately 10 a.m. The prosecutor stated that Sanchez had been rearrested on October 16, 1984, for "engaging in similar conduct"; this led to the issuance of a bench warrant, signed that day by Judge Keenan, for Sanchez. Then, a jury was selected, following which there was some discussion about proceeding with a trial of Sanchez in absentia; a Spanish interpreter was sworn; and at approximately 11 a.m. the case was continued until the following day, November 8, at 10 a.m.

On November 8, over objection of Sanchez's lawyer, the district judge granted the government's application for Sanchez to be tried in absentia. The trial began that day at approximately 10 a.m. and ended at 12:35 p.m. Sanchez's lawyer chose to remain silent throughout the trial, except that he joined in Mr. Stone's motion for judgment of acquittal, and he made two objections to the court's instruction to the jury regarding Sanchez's absence. At 3:35 p.m., the jury returned a verdict of guilty on each of the two counts against Sanchez.

DISCUSSION

1. Trial in Absentia.

It has long been settled that a defendant charged with a crime may knowingly and voluntarily waive his constitutional right to be present at his trial. See, e.g., Diaz v. United States, 223 U.S. 442, 456-58, 32 S.Ct. 250, 254-55, 56 L.Ed. 500 (1912); United States v. Tortora, 464 F.2d 1202 1208-09 (2d Cir.1972), cert. denied, sub nom. Santoro v. United States, 409 U.S. 1063, 93 S.Ct. 554, 34 L.Ed.2d 516 (1972). "It must clearly appear in the record ... that the defendant was advised when proceedings were to commence and that he voluntarily, knowingly, and without justification failed to be present at the designated time and place before the trial may proceed in his absence." Tortora, 464 F.2d at 1209 (citing cases). This clear rule is fundamental to a defendant's right to be present at all critical stages of his criminal trial, see Fed.R.Crim.P. 43, and to his constitutional right to due process. Tortora, 464 F.2d at 1209.

It is not really disputed that Sanchez was present in the courtroom on September 25, 1984, or that his lawyer was also present, when the district judge set the trial date at November 7, 1984. ³ Appellant's counsel, who was not trial counsel, argues that the trial record is devoid of any clear showing that Sanchez heard and understood the district judge's setting of the trial date. Specifically, counsel contends that (1) there is no reference to the judge's communicating with or addressing or otherwise acknowledging the presence of Sanchez; (2) there is no reference to where Sanchez was situated in the courtroom; and (3) no interpreter was present, although one was sworn for the trial itself, and later Sanchez actually availed himself of the assistance of an interpreter at sentencing.

We find appellant's contentions unavailing. Although some district judges, out of an abundance of caution, communicate the trial date directly to the defendant himself, such prudence is not mandated by any law and may not even constitute prevailing practice. Indeed, trial dates are often rescheduled by consultation between judge and counsel even in the absence of the defendant altogether. Where, as here, the defendant and his attorney are present in the courtroom, absent extraordinary circumstances, the defendant may be deemed to have been advised of a trial date once it is communicated by the judge to his lawyer. We cannot say that the district judge's finding that Sanchez was aware of the setting of his trial date was clearly erroneous. Cf. United States v. Pastor, 557 F.2d 930, 934 (2d Cir.1977) (applying clearly erroneous standard to factual findings concerning defendant's absence from trial).

In light of the foregoing, we need not linger over where in the courtroom Sanchez was sitting. As to the lack of an interpreter at the September 25 proceeding, when the trial date was set, there is no indication that Sanchez or his attorney requested an interpreter. Further, we note that nowhere in the record or in appellant's brief does Sanchez expressly state that his knowledge of English is insufficient for him to have understood the proceedings and the setting of his trial date. On the contrary, Sanchez's trial counsel stated that Sanchez did understand some English. In any event, Gross' sole purpose in being present was to represent Sanchez and, in the absence of extraordinary circumstances, we deem rulings communicated to the attorney, including setting of the trial date, to constitute communications made to his client.

Once advised of the trial date, Sanchez failed to present himself at the November 7 and 8 proceedings, and "no justification, either to the district court or on appeal, has been offered for his absence." See Tortora, 464 F.2d at 1209-10; see also Cureton v. United States, 396 F.2d 671, 676 (D.C.Cir.1968); United States v. Lochan, 674 F.2d 960, 967 (1st Cir.1982). A defendant may not unilaterally set the time or circumstances of his trial, see United States v. Bentvena, 319 F.2d 916 (2d Cir.), cert. denied, sub nom. Ormento v. United States, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271 (1963); rather, the defendant bears the burden of justifying his absence from a known proceeding against him. See Tortora, 464 F.2d at 1209. Further, although a defendant may choose to waive his right to be present at his trial and may reveal his intent to do so by his conduct (e.g. by declining to leave his cell to attend trial or by refusing to desist from disruptive conduct during trial), he must in some way make known to the court his intention to exercise this right. See Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). In the present case, Sanchez's trial counsel acknowledged that "there is no evidence of where [Sanchez] is." This acknowledgment adequately supports the district judge's conclusion that Sanchez "willfully absented himself without a reason." In fact, to this date we are unaware of Sanchez' whereabouts when this case proceeded to trial.

We turn, then, to the question of whether, having properly found that Sanchez had waived his right to attend trial, the district judge abused his discretion in ordering a trial in absentia. See Pastor, 557 F.2d at 934 (applying abuse of discretion standard to decision on holding trial in absentia). In Tortora, 464...