U.S. v. Songer, 87-1344

• Decision Date: 21 March 1988
• Docket Number: No. 87-1344,87-1344
• Citation: 842 F.2d 240
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stephen Jay SONGER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 240

842 F.2d 240

UNITED STATES of America, Plaintiff-Appellee, v. Stephen Jay SONGER, Defendant-Appellant.

No. 87-1344.

United States Court of Appeals Tenth Circuit.

March 21, 1988.

Clark O. Brewster (David A. Mullon Jr. with him on the brief), Tulsa, Okl., for defendant-appellant.

Keith Ward, Asst. U.S. Atty. (Tony M. Graham, U.S. Atty., with him on the brief), Tulsa, Okl., for plaintiff-appellee.

Before McKAY and MOORE, Circuit Judges, and BURCIAGA ^*, District Judge.

McKAY, Circuit Judge.

Legal counsel for a fugitive criminal defendant appeals from a sentence of property forfeiture imposed upon his client following a trial in absentia. Stephen Jay Songer was indicted under 21 U.S.C. Sec. 848 (1982 & Supp. II 1984) for participating in a continuing criminal enterprise of marijuana and cocaine smuggling. Rather than submit to detention following his indictment, Mr. Songer elected to pay a cash bond imposed by the district court to ensure his appearance at future proceedings. Though he subsequently attended several pre-trial hearings and a scheduling conference in the seven-month period between his indictment and the scheduled date of his jury trial, Mr. Songer broke off all contact with his counsel approximately one week before the start of trial and is assumed to have fled the United States.

Upon learning that Mr. Songer had become a fugitive, the government moved for a trial in absentia. In its review of the motion, the district court found that the "defendant voluntarily and intentionally absented himself to avoid trial," Record, vol. 1, doc. 178 (Order of September 23, 1986), at 5, and that, consequently, Mr. Songer had waived his right to be present at the proceedings. Id. The court then declared that trial would go forward in Mr. Songer's absence. Id. at 10.

The jury returned a general verdict of guilty on all counts of the indictment and a special verdict requiring forfeiture of Mr. Songer's interest in certain real and personal property as prescribed by 21 U.S.C. Sec. 853 (1984). In its Judgment of Forfeiture, the district court declared that title to or interest in the forfeited property had become vested in the federal government, which would hold the property pending the anticipated appeal of Mr. Songer's conviction. In a contemporaneous Order of Forfeiture, the court set out at length the facts and circumstances that it believed justified the forfeiture and again directed the government to seize and care for the property. 655 F.Supp. 861.

In this appeal Mr. Songer's counsel has asked us to decide (1) whether the district court's Judgment of Forfeiture and Order of Forfeiture violated the prohibition against sentencing in absentia found in Rules 32 and 43 of the Federal Rules of Criminal Procedure and (2) whether the Judgment of Forfeiture and Order of Forfeiture violated the sentencing provisions of 18 U.S.C. Sec. 3554 (1984), 21 U.S.C. Sec. 848 (1982 & Supp. II 1984), and 21 U.S.C. Sec. 853 (1984).

The government concedes that the forfeiture of property mandated by 21 U.S.C. Sec. 853 is an element of the sentence imposed upon Mr. Songer. See Brief of Appellee at 5. It also appears to recognize that virtually all federal courts that have examined sentencing in absentia have rejected the practice. ¹ Id. Nonetheless, the government asks us to discard a widely recognized and salutary sentencing rule because, in the government's view, current practice under the rule is logically untenable.

The government argues that since the Constitution allows trial in absentia, by implication sentencing in absentia is equally permissible. Citing Lewis v. United States, 146 U.S. 355, 13 S.Ct. 186, 36 L.Ed. 1003 (1892), the government points out that while the right to confront one's accusers is guaranteed by the Sixth Amendment to the Constitution, the Supreme Court has held that a defendant may waive that due process guarantee by willfully absenting himself from trial. Then drawing on the rationale of Brewer v. Raines, 670 F.2d 117, 119 (9th Cir.1982), the government concludes that "[t]o hold that the Constitution permits a person to be tried and convicted while voluntarily absent, and yet, somehow, precludes the sentencing in absentia of the same person would be, at the least, anomalous." Brief of Appellee at 6-7.

The flaw in the government's argument is that it does not respond to the claims Mr. Songer's counsel has raised on appeal. Counsel has not challenged the forfeiture of property as a violation of Mr. Songer's constitutional rights. Instead, he has asserted the very different proposition that the sentencing of Mr. Songer in absentia violates the Federal Rules of Criminal Procedure. The significance of this distinction--and its importance to the resolution of this appeal--becomes apparent from a comparison of "the right to be present for trial" afforded by the Constitution and the privilege of presence extended to a defendant by Rule 43 of the Federal Rules of Criminal Procedure.

In Snyder v. Massachusetts, 291 U.S. 97, 107, 54 S.Ct. 330, 332-33, 78 L.Ed. 674 (1934), Justice Cardozo warned that

[c]onfusion of thought will result if we fail to mark the distinction between requirements in respect of presence that have their source in the common law, and requirements that have their source, either expressly or by implication, in the federal constitution.

"The privilege of confrontation [under the Sixth Amendment]," Justice Cardozo explained, "is limited to the stages of the trial when there are witnesses to be questioned," and "[s]o far as the Fourteenth Amendment is concerned, the presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only." Id. at 107-08, 54 S.Ct. at 333. The essence of Justice Cardozo's remarks in Snyder is preserved in the Court's more recent opinion in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Commenting on the rights only implied by the text of the Constitution, yet essential to due process of law, the Court noted: "It is now accepted, for example, that an accused has a right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings...." Id. at 819 n. 15, 95 S.Ct. at 2533 n. 15 (emphasis added).

In contrast to a defendant's constitutional right to be present at trial, one based principally on the confrontation clause, the privilege of presence implemented by Rule 43 stands on not only a constitutional foundation, United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 1484, 84 L.Ed.2d 486 (1985) (due process clause of the Fifth and Fourteenth Amendments and the confrontation clause of the Sixth Amendment), but a common-law footing as well. The Notes of the Advisory Committee on the Federal Rules of Criminal Procedure disclose that, when first promulgated, Rule 43 was intended to preserve the sweeping statement of law in Lewis v. United States, 146 U.S. 370, 372, 13 S.Ct. 136, 137, 36 L.Ed. 1011 (1892), that "after indictment ... nothing shall be done in the absence of the prisoner." ² The decision in Lewis, as Justice Cardozo explained in Snyder, was founded upon common-law principles, not constitutional considerations. See id. at 117 n. *, 54 S.Ct. at 336 n. *.

The privilege of presence recognized in Lewis was rejected as a constitutional principle in Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), which held that the trial judge may exclude a defendant from the courtroom when his presence would disrupt the decorum of the proceedings. Id. at 343-44, 90 S.Ct. at 1060-61. Nonetheless, the privilege survives as a common law doctrine which, as restated in Rule 43, requires the defendant's presence at certain stages of the prosecution. One of those stages is the imposition of sentence.

Various justifications have been advanced for maintaining the common law's broad gauge privilege of presence at sentencing; one commentator has provided the following thoughtful summary:

Presence is of instrumental value to the defendant for the exercise of other rights, such as to present mitigating evidence and challenge aggravating evidence, and it may also be advantageous to him that the decision maker be required to face him. The...