MICHAEL CROSBY, PETITIONER v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
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."
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.
951 F.2d 357, 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, [506 U.S. 255, 256] Assistant Attorney General Mueller, and Deputy Solicitor General Bryson. *
[ Footnote * ] Steven R. Shapiro and John A. Powell filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.
JUSTICE BLACKMUN delivered the opinion of the Court.
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.
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 [506 U.S. 255, 257] 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 [506 U.S. 255, 258] the District Court had acted within its discretion in electing to proceed. Id., at 365-366. We granted certiorari. 503 U.S. 905 (1992).
Rule 43 provides in relevant part:
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, [506 U.S. 255, 260] 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:
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.
[ Footnote * ] 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 [506 U.S. 255, 258] 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. [506 U.S. 255, 263]