U.S. v. Torres-Palma

• Citation: 290 F.3d 1244
• Decision Date: 16 May 2002
• Docket Number: No. 01-2179.,01-2179.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose TORRES-PALMA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

290 F.3d 1244

UNITED STATES of America, Plaintiff-Appellee, v. Jose TORRES-PALMA, Defendant-Appellant.

No. 01-2179.

United States Court of Appeals, Tenth Circuit.

May 16, 2002.

Rosanne Camunez, Las Cruces, NM, for Defendant Appellant.

Alfred J. Perez, Assistant United States Attorney, (David C. Iglesias, United States Attorney, with him on the briefs), Las Cruces, NM, for Plaintiff-Appellee.

Before HENRY, PORFILIO and ANDERSON, Circuit Judges.

JOHN C. PORFILIO, Circuit Judge.

This case presents the question of whether the use of video conferencing at sentencing violates the provision of Fed.R.Crim.P. 43, which requires a defendant to be "present" at the imposition of sentence. While certain exceptions to that mandate are granted in Rule 43(b), none of them explicitly permits the use of video conferencing. Although convinced of the need for and the benefits of technology to facilitate expeditious disposition of the ever-growing caseloads in federal courts, we find ourselves unable to reach any conclusion other than the word, "present," in the context of Rule 43, means the defendant must be physically present before the sentencing court. Despite the burden this conclusion presents the district court, we reluctantly remand for re-sentencing.

In addition to the foregoing issue, Defendant questions the district court's denial of a pre-sentence motion for a psychological examination to aid in sentencing. We find no substance to this contention and conclude the district court acted within the scope of its discretion in this matter.

I.

Because of the unusually high incidence of criminal cases involving transactions across the border with Mexico and the limited judicial resources within the District of New Mexico to deal with those cases, judges from other districts within the Tenth Circuit have voluntarily accepted assignments to preside over the New Mexico criminal docket. Unfortunately, dealing with the logistical problems that arise from this effort sometimes creates other difficulties.

For example, in this case the jury was picked by a local judge, but the case was tried in New Mexico by a judge from outside the district. Certain motions and other preliminary matters were considered by New Mexico judges and not the trial judge. Thus, after the verdict was entered, the trial judge returned to his home district to deal with matters on his own calendar.

Unfortunately, the crush of those matters made impractical and difficult a timely return of the trial judge to New Mexico only to pronounce sentence in this case. The court concluded video conferencing would provide an ideal solution because the defendant would be able to communicate with and see the court, and the court would have the ability to see and hear the defendant. Nonetheless, standing on the language of Rule 43, defendant objected to the procedure, but the objection was overruled and sentencing took place in a video conference.

Before proceeding to the merits of the issue, we must ask whether, in light of the hardship of providing adequate judicial resources in the District of New Mexico to deal with its exceptional criminal docket, we are about to engage in the elevation of form over substance. After reflection, however, we have to conclude there is significant substance here to inform our decision. See Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970).

We commence with Rule 43 which provides:

(a) Presence Required. 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.¹

(b) Continued Presence Not Required. The further progress of the trial to and including the return of the verdict, and the imposition of sentence, will not be prevented and the defendant will be considered to have waived the right to be present whenever a defendant, initially present at trial, or having pleaded guilty or nolo contendere,

(1) is voluntarily absent after the trial has commenced (whether or not the defendant has been informed by the court of the obligation to remain during the trial),

(2) in a noncapital case, is voluntarily absent at the imposition of sentence, or

(3) after being warned by the court that disruptive conduct will cause the removal of the defendant from the courtroom, persists in conduct which is such as to justify exclusion from the courtroom.

(c) Presence Not Required. A defendant need not be present:

(1) when represented by counsel and the defendant is an organization, as defined in 18 U.S.C. § 18;

(2) when the offense is punishable by fine or by imprisonment for not more than one year or both, and the court, with the written consent of the defendant, permits arraignment, plea, trial, and imposition of sentence in the defendant's absence;

(3) when the proceeding involves only a conference or hearing upon a question of law; or

(4) when the proceeding involves a reduction or correction of sentence under Rule 35(b) or (c) or 18 U.S.C. § 3582(c).

(Emphasis added).

Defendant urges the protective breadth of Rule 43 fully embodies a constitutional right to be present at sentencing. This scope was recognized in United States v. Lawrence, 248 F.3d 300 (4th Cir.2001) and United States v. Navarro, 169 F.3d 228 (5th Cir.1999). Each case vacated a defendant's sentence which had been imposed during a video conference and remanded for resentencing.²

In Lawrence, because of the defendant's obstreperous conduct, including his courtroom outbursts and several incidents of extremely violent behavior while in custody,³ the district court ordered sentencing to be conducted by video conference. 248 F.3d at 302. Lawrence filed an interlocutory appeal. Id.

On appeal, the government argued Rule 43 does not impose an absolute presence requirement in every case. Pressing for a more flexible reading of Rule 43, the government argued: "[t]he practical realities of the criminal justice system necessitate giving district courts flexibility in certain cases by allowing innovative techniques such as video conferences." Id. at 303. The court rejected the argument upon a plain reading of the text of Rule 43 and other extrinsic aids defining the word "present." Id. The court confirmed its interpretation of the rule with the Oxford English Dictionary (2d. ed.1989), which defines "presence" as "the fact or condition of being present; the state of being before, beside, with, or in the same place as the person to whom the word has relation; being in the place considered or mentioned; that is here (or there);" and Black's Law Dictionary 1202 (7th ed. 1999), which defines "present" as "[i]n attendance; not elsewhere." 248 F.3d at 303.⁴

Looking additionally to "the context and structure of Rule 43 itself," the court found "further support [for the conclusion the rule means] physical presence." Id. Noting the rule permits the defendant to be "excluded" or "removed," the court observed,

It is difficult to imagine that a defendant can be "excluded" or "removed" from the courtroom unless he was physically present in the first instance. Indeed, the fact that the rule crafts several exceptions to the presence requirement strongly suggests that the drafters of Rule 43 may have considered an exception for video sentencing, but did not adopt it. Thus, the plain language and the content of Rule 43 indicate that "presence" in Rule 43 means physical presence.

Id. at 304.

Responding to the government's contention district courts have discretion to permit video teleconferencing when circumstances warrant, the court concluded Rule 43 "reflects a firm judgment, however, that virtual reality is rarely a substitute for actual presence and that, even in an age of advancing technology, watching an event on the screen remains less than the complete equivalent of actually attending it." Id.

In Navarro, defendant was sentenced to life imprisonment after a video conference. Responding to the defendant's argument on appeal, the government contended video conferencing was widely used and beneficial "because it increases productivity by reducing travel time, and ... is less costly and more safe than transporting prisoners." 169 F.3d at 235. The Fifth Circuit's analysis of the rule began with the plain language of Rule 43, progressed to the dictionary definitions, and concluded with the Confrontation Clause. As a result, the court concluded presence meant physical presence, not "within sight and call" as contended by the dissent. Id. at 236.⁵ The court also underscored the Advisory Committee Notes to Rule 43 which "suggested" the drafters' understanding of "present" to mean "physically being in the courtroom." Id. at 237. Responding to concerns of practicality, the court noted: "We are sympathetic to the expense and delay incurred by transporting prisoners, however, the decision whether this expense and delay is [sic] `justifiable' is the type of decision that should be considered by the drafters of the Rules." Id.

In light of this authority, the government suggests any error here is harmless "because Defendant cannot show that he was prejudiced in any manner by the video conferencing procedure." Although the government concedes the Rule 43 violation, it nevertheless contends no case to date has applied a harmless error-prejudice analysis. Yet, we see the harmless error argument as simply another face to the contentions advanced by the government in Navarro and Lawrence that Rule 43(a) should be broadly construed because such a construction would aid the paramount needs for simplicity and convenience to the court.

The analyses undertaken in those cases are very persuasive. Those analyses will not support a flexible reading of Rule 43, even to accommodate the logistical burdens thrust upon the District of New Mexico and all the volunteers who are struggling to deal with the...