MEMORANDUM AND ORDER
CROW, District Judge.
On July 27, 1989, Richard Ray Lacey, Mary E. Friesen, Laura A. Klobuchar, Lee Ray Harper and Mitcheal Edmonson were indicted by a federal grand jury for conspiracy to distribute controlled substances and distribution of cocaine and marijuana. Prior to trial, Mary Friesen entered a guilty plea. On February 6, 1990, Lacey failed to appear at trial as ordered; Lacey was tried in absentia. Over the objection of the defendants, all of the defendants including Lacey were tried together.
The jury returned a verdict finding Lacey guilty on all counts. Mitcheal Edmonson was found guilty of one count of conspiracy to distribute cocaine, one count of possession with intent to distribute approximately 10 kilograms of cocaine, and one count of possession with intent to distribute approximately 2.25 kilograms of marijuana. Harper and Klobuchar were acquitted.
On May 17, 1990, the court entered a memorandum and order denying Edmonson's motion for judgment of acquittal pursuant to Fed.R.Crim.P. 29 and his motion for a new trial pursuant to Fed.R.Crim.P. 33. See United States v. Edmonson, No. 89-10054-04, 1990 WL 81216 (D.Kan. May 17, 1990). On June 8, 1990, the court sentenced Edmonson to a primary term of incarceration of 121 months.
Edmonson's conviction and sentence were affirmed on appeal, although the fine imposed for the costs of incarceration was vacated. See United States v. Edmonson, 962 F.2d 1535 (10th Cir.1992). On appeal Edmonson argued, inter alia, that he had been prejudiced by the fact that Lacey was tried in absentia. The following is a complete excerpt of the relevant portion of the Tenth Circuit's discussion and rejection of that argument:
Edmonson urges that he was denied his right to a fair trial by the trial court's decision to proceed with the trial of Defendant Lacey in absentia and by the trial court's failure to grant Edmonson's Motion to Sever his trial from that of the absent Defendant. Defendant Edmonson first argues that the trial of Lacey in absentia violates Rule 43 of the Federal Rules of Criminal Procedure. The Appellant argues that that rule mandates the presence of a Defendant "at every stage of the trial ... except as otherwise provided by this rule." Edmonson further asserts that the absence of codefendant Lacey was not permissible under either of the exceptions to Rule 43. The Appellant also asserts that although Rule 43(b) states that the continued presence of a Defendant is not required at trial and may be waived, the rule provides that the Defendant must be "initially present" and such requirement was not complied with in the instant case.
It is the position of the Defendant Edmonson that he suffered prejudice from the in absentia trial of codefendant Lacey and was thus deprived of his right to a fair trial. Edmonson urges that there was an adverse psychological impact on the jury as a result of the "dehumanizing of the absent defendant." Appellant's Brief, at 29. Appellant Edmonson asserts that in order to avoid the above-mentioned adverse psychological impact, his Motion for Severance should have been granted by the trial court.
In addressing the Appellant's contention that Rule 43 of the Federal Rules of Criminal Procedure mandates the Defendant's presence at trial except in certain limited situations, this Court is of the opinion that a Defendant's presence at trial may be waived by his absence and that codefendant Lacey did in fact waive that right. U.S. v. Wright, 932 F.2d 868 (10th Cir. 1991). In Wright, one of the codefendants (Kirby) failed to appear for the proceedings and was tried in absentia. Kirby asserted that his Sixth Amendment rights were violated as a result of his trial in absentia, and urged that his conviction be reversed on that ground. This Court held unequivocally that "an accused has a Sixth Amendment right to be present in the courtroom at every stage of her or his trial, unless the right is waived, Diaz v. United States, 223 U.S. 442, 445, 32 S.Ct. 250, 253, 56 L.Ed. 500 (1912), ... Absence without compelling justification constitutes a waiver of the right to be present at trial...." Wright, 932 F.2d at 879, citing United States v. Peterson, 524 F.2d 167, 184 (4th Cir.1975), cert. denied, 423 U.S. 1088, 96 S.Ct. 881, 47 L.Ed.2d 99 (1976).
This Court relied in Wright on Rule 43 of the Federal Rules of Criminal Procedure for the proposition that a Defendant's presence is not required if he or she "voluntarily absents herself or himself after the trial has commenced." There is no indication in the Wright case that Defendant Kirby was present for any stages of the trial. A footnote to the case states only that Defendant Kirby did not show up for the trial and was tried in absentia. Thus, obviously the fact that Kirby was not present at the initial stages of the trial did not preclude this Court from holding that he had nonetheless waived his constitutional right to be present during the proceedings. The same conclusion should be reached in the case at bar. The fact that codefendant Lacey was not present for any of the trial would not preclude the trial court from finding that he had waived his right to be present and trying him in absentia if other factors weighed in favor of such decision. FN1
FN1. In connection with this proposition, the Government urges that only Defendant Lacey, the Defendant who was actually tried in absentia, has standing to raise a violation of Rule 43. The Government asserts that Defendant Edmonson is impermissibly seeking to assert the rights of Defendant Lacey in this regard. Because Defendant Edmonson is taking the position that his own entitlement to a fair trial was denied by the adverse psychological effect of codefendant Lacey's absence, this Court does not agree with the Government that Defendant Edmonson does not have standing in this case to raise the in absentia issue.
As the Wright case instructs, the Sixth Amendment right to be present at trial cannot "cursorily, and without inquiry, be deemed by the trial court to have been waived simply because the accused is not present when he should have been." Wright, 932 F.2d at 879, quoting United States v. Beltran-Nunez, 716 F.2d 287, 291 (5th Cir.1983). Nonetheless, a trial court's decision to proceed with the trial against a defendant in absentia is clearly within the trial court's discretion, and should be reversed by this Court only if an abuse thereof is found. In the case at bar, the trial court inquired of Defendant Lacey's counsel at the commencement of the trial as to Lacey's absence, and recessed the trial until that afternoon to allow the attorney an opportunity to contact Defendant Lacey. When the Court reconvened in the afternoon, the Court again inquired as to the presence of Defendant Lacey, and had the Marshals check the courthouse to see if Lacey were present. As a result, this Court finds that the trial court took adequate steps to ensure that Defendant Lacey had in fact waived his right to be present at trial and was not absent due to a miscommunication or other such reason.
The trial court then determined that the trial should proceed in Defendant Lacey's absence. The Wright case states that a trial court "should consider factors such as the likelihood that the trial could soon proceed with the Defendant present, the difficulty of rescheduling and the burden on the Government, United States v. Rogers, 853 F.2d 249, 252 (4th Cir.1988), cert. denied, 488 U.S. 946, 109 S.Ct. 375, 102 L.Ed.2d 364 (1988), ... Generally, the balance will favor proceeding without the defendant only in multidefendant trials." Wright, 932 F.2d at 879.
The trial court in this case fully considered the above-cited factors and stated in his memorandum and order as follows:
"This is a multi-defendant trial. There is no evidence of any likelihood that the trial could soon take place with the Defendant present ... The Court finds that it would be an extreme burden upon the government to undertake two trials if Defendant Lacey is subsequently apprehended and the case would then need to go to trial against him. The parties have represented to the Court that this case will take at least four weeks ... Defendant Lacey is charged with conspiracy to distribute cocaine along with the other named defendants ... Most if not all of the evidence against Defendant Lacey will overlap with the evidence against the other defendants. Furthermore, the Court finds that it would be extremely difficult to reschedule this four-week trial, not only for the parties but for the Court ... Further delay is not mandated by Defendant's unjustifiable and voluntary absence from trial."
This Court is in agreement with the district court that the case at bar is clearly one in which a trial of an absent codefendant in absentia was appropriate. There were five codefendants in this case, and the evidence against those defendants was extensive and overlapping. As a result, it would be an unfair burden on the government to have to conduct two separate trials. The district court properly determined that a trial of Defendant Lacey in absentia was the appropriate course of action in this case.
Defendant Edmonson next argues that he suffered such prejudice from the negative psychological impact of the in absentia trial of codefendant Lacey that he was deprived of his Sixth Amendment right to a fair trial. Edmonson urges that the jury would in effect punish Edmonson, who was shown at trial to have been the absent codefendant Lacey's high school friend, for Defendant Lacey's absence. As the Appellee points out, however, the jury in this
...
