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Crosby v. United States

U.S.
Jan 13, 1993
506 U.S. 255 (1993)

Summary

holding that the “list of situations” in which sentencing may proceed “without the defendant is ... exclusive”

Summary of this case from United States v. Aguilar-Reyes

Opinion

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

No. 91-6194

Argued November 9, 1992 Decided January 13, 1993

Although petitioner Crosby attended various preliminary proceedings, he failed to appear at the beginning of his criminal trial. The Federal District Court permitted the proceedings to go forward in his absence, and he was convicted and subsequently arrested and sentenced. In affirming his convictions, the Court of Appeals rejected his argument that his trial was prohibited by Federal Rule of Criminal Procedure 43, which provides that a defendant must be present at every stage of trial "except as otherwise provided" by the Rule, and which lists situations in which a right to be present may be waived, including when a defendant, initially present, "is voluntarily absent after the trial has commenced."

Held: Rule 43 prohibits the trial in absentia of a defendant who is not present at the beginning of trial. The Rule's express use of the limiting phrase "except as otherwise provided" clearly indicates that the list of situations in which the trial may proceed without the defendant is exclusive. Moreover, the Rule is a restatement of the law that existed at the time it was adopted in 1944. Its distinction between flight before and during trial also is rational, as it marks a point at which the costs of delaying a trial are likely to increase; helps to assure that any waiver is knowing and voluntary; and deprives the defendant of the option of terminating the trial if it seems that the verdict will go against him. Because Rule 43 is dispositive, Crosby's claim that the Constitution also prohibited his trial in absentia is not reached. Pp. 258-262.

917 F.2d 362, reversed and remanded.

BLACKMUN, J., delivered the opinion for a unanimous Court.

Mark D. Nyvold, by appointment of the court, 503 U.S. 934, argued the cause and filed a brief for petitioner.

Richard H. Seamon argued the cause for the United States. With him on the brief were Solicitor General Starr, Assistant Attorney General Mueller, and Deputy Solicitor General Bryson.

Steven R. Shapiro and John A. Powell filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.


This case requires us to decide whether Federal Rule of Criminal Procedure 43 permits the trial in absentia of a defendant who absconds prior to trial and is absent at its beginning. We hold that it does not.

I

In April, 1988, a federal grand jury in the District of Minnesota indicted petitioner Michael Crosby and others on a number of counts of mail fraud. The indictment alleged that Crosby and his codefendants had devised a fraudulent scheme to sell military veteran commemorative medallions supposedly to fund construction of a theme park honoring veterans. Crosby appeared before a federal magistrate on June 15, 1988, and, upon his plea of not guilty, was conditionally released from detention after agreeing to post a $100,000 bond and remain in the State. Subsequently, he attended pretrial conferences and hearings with his attorney, and was advised that the trial was scheduled to begin on October 12.

Crosby did not appear on October 12, however, nor could he be found. United States deputy marshals reported that his house looked as though it had been "cleaned out," and a neighbor reported that petitioner's car had been backed halfway into his garage the previous evening, as if he were packing its trunk. As the day wore on, the court remarked several times that the pool of 54 potential jurors was being kept waiting, and that the delay in the proceedings would interfere with the court's calendar. The prosecutor noted that Crosby's attorney and his three codefendants were present, and commented on the difficulty she would have in rescheduling the case, should Crosby later appear, because some of her many witnesses were elderly and had health problems.

When the District Court raised the subject of conducting the trial in Crosby's absence, Crosby's attorney objected. Nevertheless, after several days of delay and a fruitless search for Crosby, the court, upon a formal request from the Government, decided that trial would commence on October 17. The court ordered Crosby's $100,000 bond forfeited and stated for the record its findings that Crosby had been given adequate notice of the trial date, that his absence was knowing and deliberate, and that requiring the Government to try Crosby separately from his codefendants would present extreme difficulty for the Government, witnesses, counsel, and the court. It further concluded that Crosby voluntarily had waived his constitutional right to be present during the trial, and that the public interest in proceeding with the trial in his absence outweighed his interest in being present during the proceedings. Trial began on October 17, with petitioner's counsel actively participating, and continued in Crosby's absence until November 18, when the jury returned verdicts of guilty on charges against Crosby and two of his codefendants. See United States v. Cheatham, 899 F.2d 747 (CA8 1990). One codefendant was acquitted.

Approximately six months later, Crosby was arrested in Florida and brought back to Minnesota, where he was sentenced to 20 years in prison followed by 5 years on probation with specified conditions. Crosby's convictions were upheld by the Court of Appeals, which rejected his argument that Federal Rule of Criminal Procedure 43 forbids the trial in absentia of a defendant who is not present at the beginning of trial. 917 F.2d 362, 364-366 (CA8 1990). Noting that the other Courts of Appeals that considered the question had found trial in absentia permissible, the court concluded that the District Court had acted within its discretion in electing to proceed. Id., at 365-366. We granted certiorari. 503 U.S. 905 (1992).

The court cited, among other authorities, United States v. Peterson, 524 F.2d 167 (CA4 1975), cert. denied, 423 U.S. 1088 (1976); Government of the Virgin Islands v. Brown, 507 F.2d 186, 189 (CA3 1975); and United Page States v. Tortora, 464 F.2d 1202, 1208 (CA2), cert. denied sub nom. Santoro v. United States, 409 U.S. 1063 (1972). See also Boreman, Sufficiency of Showing Defendant's "Voluntary Absence" From Trial for Purposes of Criminal Procedure Rule 43, Authorizing Continuance of Trial Notwithstanding Such Absence, 21 A.L.R. Fed. 906, 915-918 (1974 and 1991 Supp.), and cases cited there.

II

Rule 43 provides in relevant part:

"(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.

"(b) CONTINUED PRESENCE NOT REQUIRED. The further progress of the trial to and including the return of the verdict shall not be prevented and the defendant shall be considered to have waived the right to be present whenever a defendant, initially present,

"(1) is voluntarily absent after the trial has commenced. . . ."

The Government concedes that the Rule does not specifically authorize the trial in absentia of a defendant who was not present at the beginning of his trial. The Government argues, nonetheless, that "Rule 43 does not purport to contain a comprehensive listing of the circumstances under which the right to be present may be waived." Brief for United States 16. Accordingly, the Government contends, Crosby's position rests not on the express provisions of Rule 43, but solely on the maxim expressio unius est exclusio alterius. Ibid. We disagree. It is not necessary to invoke that maxim in order to conclude that Rule 43 does not allow full trials in absentia. The Rule declares explicitly: "The defendant shall be present . . . at every stage of the trial . . . except as otherwise provided by this rule" (emphasis added). The list of situations in which the trial may proceed without the defendant is marked as exclusive not by the "expression of one" circumstance, but rather by the express use of a limiting phrase. In that respect, the language and structure of the Rule could not be more clear.

The Government, however, urges us to look for guidance at the existing law, which the Rule was meant to restate, at the time of its adoption in 1944. See Advisory Committee's Notes on Fed. Rule Crim. Proc. 43, 18 U.S.C. App. p. 821. That inquiry does not assist the Government. "It is well settled that . . . at common law the personal presence of the defendant is essential to a valid trial and conviction on a charge of felony. . . . If he is absent, . . . a conviction will be set aside." W. Mikell, Clark's Criminal Procedure 492 (2d ed. 1918) (hereinafter Mikell). Accord, Goldin, Presence of the Defendant at Rendition of the Verdict in Felony Cases, 16 Colum. L. Rev. 18, 20 (1916); F. Wharton, Criminal Pleading and Practice 388 (9th ed. 1889) (hereinafter Wharton); 1 J. Bishop, New Criminal Procedure 178-179 (4th ed. 1895) (hereinafter Bishop), and cases cited there. The right generally was considered unwaivable in felony cases. Mikell 492; 1 Bishop 175 and 178. This canon was premised on the notion that a fair trial could take place only if the jurors met the defendant face-to-face, and only if those testifying against the defendant did so in his presence. See Wharton 392; 1 Bishop 178. It was thought "contrary to the dictates of humanity to let a prisoner "waive that advantage which a view of his sad plight might give him by inclining the hearts of the jurors to listen to his defence with indulgence." Ibid., quoting Prine v. Commonwealth, 18 Pa. 103, 104 (1851).

In Diaz v. United States, 223 U.S. 442 (1912), a case that concerned a defendant who had absented himself voluntarily on two occasions from his ongoing trial in the Philippines, this Court authorized a limited exception to the general rule, an exception that was codified eventually in Rule 43(b). Because it did "`not seem to us to be consonant with the dictates of common sense that an accused person, being at large upon bail, should be at liberty, whenever he pleased, to withdraw himself from the courts of his country and to break up a trial already commenced,'" id., at 457, quoting Falk v. United States, 15 App.D.C. 446, 454 (1899), cert. denied, 181 U.S. 618, 636 (1901), the Court held:

"[W]here the offense is not capital and the accused is not in custody, . . . if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present, and leaves the court free to proceed with the trial in like manner and with like effect as if he were present." 223 U.S., at 455 (emphasis added).
Diaz was cited by the Advisory Committee that drafted Rule 43. The Committee explained: "The second sentence of the rule is a restatement of existing law that, except in capital cases, the defendant may not defeat the proceedings by voluntarily absenting himself after the trial has been commenced in his presence." Advisory Committee's Notes on Fed. Rule Crim. Proc. 43, 18 U.S.C. App. p. 821. There is no reason to believe that the drafters intended the Rule to go further. Commenting on a preliminary version of the Rule, Judge John B. Sanborn, a member of the Committee, stated:

"I think it would be inadvisable to conduct criminal trials in the absence of the defendant. That has never been the practice, and, whether the defendant wants to attend the trial or not, I think he should be compelled to be present. If, during the trial, he disappears, there is, of course, no reason why the trial should not proceed without him." 2 M. Wilken N. Triffin, Drafting History of the Federal Rules of Criminal Procedure 236 (1991).

The Court of Appeals in the present case recognized that this Court in Diaz had not addressed the situation of the defendant who fails to appear for the commencement of trial. Nevertheless, the court concluded: "It would be anomalous to attach more significance to a defendant's absence at commencement than to absence during more important substantive portions of the trial." 917 F.2d, at 365. While it may be true that there are no "talismanic properties which differentiate the commencement of a trial from later stages," Government of the Virgin Islands v. Brown, 507 F.2d 186, 189 (CA3 1975), we do not find the distinction between pretrial and midtrial flight so farfetched as to convince us that Rule 43 cannot mean what it says. As a general matter, the costs of suspending a proceeding already under way will be greater than the cost of postponing a trial not yet begun. If a clear line is to be drawn marking the point at which the costs of delay are likely to outweigh the interests of the defendant and society in having the defendant present, the commencement of trial is at least a plausible place at which to draw that line. See Hopt v. Territory of Utah, 110 U.S. 574, 579 (1884) (discussing the public's interest in strict enforcement of statutory requirement that defendant be present at trial).

There are additional practical reasons for distinguishing between flight before and flight during a trial. As did Diaz, the Rule treats mid-trial flight as a knowing and voluntary waiver of the right to be present. Whether or not the right constitutionally may be waived in other circumstances — and we express no opinion here on that subject — the defendant's initial presence serves to assure that any waiver is indeed knowing. "Since the notion that trial may be commenced in absentia still seems to shock most lawyers, it would hardly seem appropriate to impute knowledge that this will occur to their clients." Starkey, Trial in Absentia, 54 N.Y.St.B.J. 30, 34, n. 28 (1982). It is unlikely, on the other hand, "`that a defendant who flees from a courtroom in the midst of a trial — where judge, jury, witnesses and lawyers are present and ready to continue — would not know that, as a consequence, the trial could continue in his absence.'" Taylor v. United States, 414 U.S. 17, 20 (1973), quoting from Chief Judge Coffin's opinion, United States v. Taylor, 478 F.2d 689, 691 (CA1 1973), for the Court of Appeals in that case. Moreover, a rule that allows an going trial to continue when a defendant disappears deprives the defendant of the option of gambling on an acquittal knowing that he can terminate the trial if it seems that the verdict will go against him — an option that might otherwise appear preferable to the costly, perhaps unnecessary, path of becoming a fugitive from the outset.

The language, history, and logic of Rule 43 support a straightforward interpretation that prohibits the trial in absentia of a defendant who is not present at the beginning of trial. Because we find Rule 43 dispositive, we do not reach Crosby's claim that his trial in absentia was also prohibited by the Constitution.

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.


Summaries of

Crosby v. United States

U.S.
Jan 13, 1993
506 U.S. 255 (1993)

holding that the “list of situations” in which sentencing may proceed “without the defendant is ... exclusive”

Summary of this case from United States v. Aguilar-Reyes

holding that Rule 43 prohibits the trial in absentia of a defendant who is not present at the beginning of trial

Summary of this case from U.S. v. Watkins

holding that, under Federal Rule of Criminal Procedure 43, a criminal defendant could not be tried in absentia if the absence occurred prior to the commencement of the trial, but declined to address the issue under the Sixth Amendment

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holding that the Defendant must be present for the beginning of trial under Rule 43 of the Federal Rules of Criminal Procedure

Summary of this case from U.S. v. Singleton

holding that a criminal defendant's right to be present at the beginning of trial cannot be forfeited through a failure to be present

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holding that FRCP Rule 43 prohibits trial in absentia of a defendant who is not present at the beginning of trial

Summary of this case from State v. Vaimili

holding that FRCP Rule 43 prohibits trial in absentia of a defendant who is not present at the beginning of trial

Summary of this case from State v. Vaimili

In Crosby, for example, we held that a defendant's failure to appear for any part of his trial did not constitute a valid waiver of his right to be present under Federal Rule of Criminal Procedure 43.

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explaining that Rule 43 was meant to deal with the "defendant who flees from a courtroom in the midst of a trial"

Summary of this case from United States v. Castellon

noting that part of justification for "voluntary absence" exception to Rule 43 is that midtrial flight by a defendant present at start of trial acts as knowing and voluntary waiver

Summary of this case from United States v. Howell

noting that Rule 43 of the Federal Rules of Criminal Procedure "prohibits the trial in absentia of a defendant who is not present at the beginning of the trial"

Summary of this case from United States v. Bescond

noting that Rule 43"prohibits the trial in absentia of a defendant who is not present at the beginning of trial"

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noting that if a defendant fled after the start of trial, the defendant would know that the likely consequence would be that the trial would continue in his absence

Summary of this case from U.S. v. Lucky

stating that Fed.R.Crim.P. 43 prevents trial in absentia if the defendant is not present at the beginning of trial

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discussing the law that Rule 43 was meant to restate

Summary of this case from U.S. v. Burke

In Crosby, the Court held that Federal Rule of Criminal Procedure 43 prohibits the trial in absentia of a defendant who is not present at the beginning of trial.

Summary of this case from Murr v. United States

In Crosby, the Court relied on the plain language of the rule, which permits trial "`whenever a defendant, initially present, is voluntarily absent after the trial has commenced.'"

Summary of this case from Smith v. Mann

In Crosby, the Supreme Court relied upon the plain language of Rule 43 and the history of the rule to declare that Fed.R.Crim.P. 43(b)(1) establishes only a narrow exception to the common law rule regarding the presence of a criminal defendant at trial and that the exception applies only when an accused is present at the commencement of trial.

Summary of this case from Pelaez v. U.S.

In Crosby, the Court unanimously held that Fed.R.Crim.P. 43 prohibits the trial in absentia of a defendant not present at the beginning of the trial, because the Court was unwilling to impute to a defendant who flees before trial the knowledge that he was waiving his right to be present at trial.

Summary of this case from United States v. Deeb

In Crosby, Justice Blackmun, writing for a unanimous Court, could not have been more explicit, nor the Court's holding more applicable to Mota's case: "This case requires us to decide whether Federal Rule of Criminal Procedure 43 permits the trial in absentia of a defendant who absconds prior to trial and is absent at its beginning.

Summary of this case from U.S. v. Arias

In Crosby, the defendant had been on bond and failed to show up on the scheduled day of trial, having apparently fled the preceding day. Notwithstanding Crosby's failure to show up on the first day of trial, or any day thereafter, the district court conducted the trial anyway.

Summary of this case from United States v. Perkins

In Crosby, the defendant had been on bond and failed to show up on the scheduled day of trial, having apparently fled the preceding day. Notwithstanding Crosby's failure to show up on the first day of trial, or any day thereafter, the district court conducted the trial anyway.

Summary of this case from United States v. Perkins

In Crosby v. United States, 506 U.S. 255 (1993), the Supreme Court determined that the Federal Rules of Criminal Procedure prohibit the trial in absentia of a defendant not present at the beginning of trial, however, the Court expressly refused to reach the constitutional question.

Summary of this case from Holtz v. Superintendent, Westville Corr. Fac.

In Crosby, where, as here, the petitioner was absent from the beginning of trial, the Court found that Rule 43 was violated.Id. at 258-62.

Summary of this case from Marshall v. Keffer

In Crosby v. U.S., 506 U.S. 255 (1993), the United State Supreme Court held that Rule 43 prohibits trial in absentia of a defendant who is not present at the beginning of trial.

Summary of this case from U.S. v. Robinson
Case details for

Crosby v. United States

Case Details

Full title:CROSBY v . UNITED STATES

Court:U.S.

Date published: Jan 13, 1993

Citations

506 U.S. 255 (1993)

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