888 F.3d 864
7th Cir.2018Background
- Gregory Bethea pleaded guilty to possessing a counterfeit access device under 18 U.S.C. § 1029(a)(1) for fraudulently obtained credit-card purchases in Wisconsin (indicted 2014; plea agreed May 2017).
- Because of severe health problems (dialysis, pulmonary issues, recent stent, wheelchair-bound, Charcot joint), Bethea appeared by videoconference from Milwaukee for a combined guilty-plea and sentencing hearing held in Madison on December 1, 2017.
- The district judge conducted a plea colloquy via videoconference, accepted Bethea’s guilty plea, and sentenced him to 21 months’ imprisonment (bottom of Guidelines range).
- Bethea appealed, contending the plea was invalid because Federal Rule of Criminal Procedure 43(a) requires physical presence at the plea and a videoconference appearance cannot satisfy that requirement.
- The Seventh Circuit agreed that Rule 43(a) mandates physical presence for pleas, held that a defendant cannot consent to a plea by videoconference, and vacated and remanded for a new plea and resentencing in the judge’s physical presence.
Issues
| Issue | Plaintiff's Argument (Bethea) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether Rule 43(a) permits a defendant to enter a guilty plea by videoconference | Rule 43(a) does not allow videoconference pleas for felonies; presence is mandatory and unwaivable | Defendant argued Bethea consented and the accommodation was permissible | Court held Rule 43(a) requires physical presence for plea; defendant cannot consent to videoconference plea |
| Whether a Rule 43(a) violation is per se reversible error | N/A (Bethea sought automatic reversal) | Government argued error invited or forfeited and not structural | Court treated Rule 43(a) violation as per se prejudicial and reversed without harmless-error inquiry |
Key Cases Cited
- United States v. Thompson, 599 F.3d 595 (7th Cir. 2010) (discusses material change in proceeding when judge absent and value of face-to-face interaction)
- United States v. Williams, 641 F.3d 758 (6th Cir. 2011) (Rule 43’s text does not allow videoconferencing)
- United States v. Torres-Palma, 290 F.3d 1244 (10th Cir. 2002) (video conferencing for sentencing not within district court discretion; Rule 43 violation reversible)
- United States v. Lawrence, 248 F.3d 300 (4th Cir. 2001) (virtual presence is not equivalent to physical presence under Rule 43)
- United States v. Navarro, 169 F.3d 228 (5th Cir. 1999) (Rule 43 violation requires automatic reversal)
- United States v. Benabe, 654 F.3d 753 (7th Cir. 2011) (distinguishable Rule 43(c) waiver context; timing exclusion harmless where defendant was initially present)
- Del Piano v. United States, 575 F.2d 1066 (3d Cir. 1978) (noting value of face-to-face assessment of credibility and character)