United States v. Joel Beltran-Nunez
716 F.2d 287
5th Cir.
1983
Check Treatment

*2 July return on 1978.1 to court RUBIN, JOLLY, Cir- Before TATE Judges. cuit On the date of appeared and the in attorneys witnesses TATE, Circuit Judge: court, did Beltran’s attor- Beltran not. but ney the court that the defendant’s challenges his convic- informed Joel Beltran-Nunez court, transport family present had been in conspiracy illegal tions for in loсate the defendant. into the violation he could aliens pro- stated that he intended 1324(a)(4) judge 371 and 8 U.S.C. § U.S.C. § absence, aliens ceed with the trial Beltran’s transporting illegal within bond of 8 that he would revoke the defendant’s in violation U.S.C. to the appear prior in court if did not 1324(a)(2). Beltran contends appeal, § On family attorney sentencing hearing, be held his Beltran’s his trial was to since 1. At the day required on of the trial and at the court informed the court that the defendant Thus, attorney had seen him interpreter. since his stated that he of an it is not the services Moreover, morning. charged clear that the should be controlling knowledge simply not a date be- date is notice of the trial constructive determining the trial was factor whether when the cause he was in court absence. properly jury English conducted informed the should (5th July for his trial 1978. Nonethe- return less, may 1979). presume knew when Cir. that Beltran attorney Beltran’s did not ob- and I will here first break. and now revoke the bond ject procedure.2 to this heretofore allowed to Mr. Joel Beltran- Nunez. will order that arrest —a bench proceeded The trial and was concluded arrest, be issued warrant verdict that same afternoon. The the new bond be made in the amount of support callеd six witnesses $100,000 corporate surety. cash or attorney of its case. Beltran’s cross-exam- *3 witnesses, did not call ined five of these but The other reference the record to any witnesses for the defense. After the the defendant’s absence was made government’s of five of the wit- testimony just court prior tо its instructions to the nesses, the court as to the again inquired jury. judge attorney The asked Beltran’s if in the following defendant’s whereabouts making finding he recalled the court on exchange: that voluntarily Beltran “had Now, THE ... the defendant COURT: absented himself” from the trial. In re- is not here yet? sponse inquiry, to this the defendant’s at- No, MR. REY: Your Honor. assured the that he had torney made you anything THE COURT: Do have such a finding.3 The found the de- you further that want to tell me about all five guilty fendant counts and the the status of the defendant? court set a date for sentencing. I just spoke MR. REY: now to his sentenced, The defendant was not wife, just my and she front of —he he until surrendered to thе authorities office, going go said he was to his some four later. The court imposed a workers, pick up work to some sentence five years prison on each of was it. said if she had a car right She counts, concurrently, the five to be served now, go she would over to where he appealеd. and the defendant worked to see if he’s there. He gone 43(b) provides Fed.R.Crim.P. that a dis- here, he was dressed well. I saw him this may proceed trict court with a trial when a morning, dropped family off. initially present defendant who is “volun- The will find that THE COURT: Court tarily absents himself after the trial has aware fully defendant was 43(b); see commеnced.” Fed.R.Crim.P. fact, yesterday that as a matter of late States, 17, Taylor v. United 414 94 U.S. afternoon, contemplated it was that the 194, (1973) (upholding 174 S.Ct. 38 L.Ed.2d fact, might, plead guilty constitutionality of Rule 43 as it then indictment, all five counts of the but case, read). In this the district court’s find- attorney he informed his that he would voluntarily that Beltran absentеd him- will family not. The Court find courtroom, supported by self from the trial was is and de- himself, fendant absented evidence. voluntarily has transcript portion Very any 2. The of this of the trial THE COURT: well. Is there reason proceed reads as follows: we should not trial? ready. MR. TANZY for the United THE COURT: The Is [Counsel States]: ready? that I know of. None MR. REY fоr the Your [Counsel Defendant]: Honor, exchange family 3. The record of this reads as follows: was out in front a moment ago, going go get some coffee. Tanzy inquired a few mo- THE COURT: Mr. maybe thought I be in the would courtroom. ago, Rey, ments Mr. in chambers whether or just just upstairs I checked and I ran back to had, fact, finding concerning not I made a him, my office. We haven’t seen but I didn’t defendant, him the absence of the and assured either, family, my secretary see the said the I had found that Joel Beltran-Nunez family, they would be back before 9:30. himself, my recollec- Well, THE that’s their choice. COURT: fully I did that on the record. tion is proceed We’ll with trial and if the defendant did, Judge. MR. REY: You break, at the will comport THE If that does COURT: revoke his bond. your memory, you should tell me. Yes, MR. REY: sir. MR. REY: You did. 290 Accord, Pastor, held, however, finding that this v. 2 Cir. United States

haveWe 930, 934; 1977, 557 F.2d In United States will not suffice. alone Cir.1976, Schwartz, 160, 2 535 F.2d (5th Cir.1979), we F.2d 137 denied; 906, 1977, cert. must consider court explained 581; 1175, 51 S.Ct. L.Ed.2d taking step the severe before other factors Peterson, Cir.1975, in the defend- holding a criminal denied, cert. 423 U.S. absence: ant’s ‍​‌​​​‌‌​‌‌‌‌‌​​​​‌‌‌‌‌​‌​‌‌‌‌​‌‌​‌‌‌‌​​​​​​‌‌‌​‌‍47 L.Ed.2d the defendants’ ab finding L.Ed.2d should not have ab voluntary sence was inquiry. ended the court’s ruptly fails analysis This cogent. Cir.1966, States, v. United Smith jur- expressly inconvenience mention 486, 490, noted we ors, which we would add to the consid- in deciding “only a narrow discretion” erations; but, addition, with this *4 the with a trial when proceed whether to agree it. voluntarily is absentia be defendant Benavides, supra, 596 F.2d at 139-40. present at one’s own cause the analysis required by Benavides carefully safeguarded. must be trial ensures will with a proceed court Davis, v. 7 Cir. Compare United States trial аbsence without 725, 727, denied, 1974, 1973, 486 F.2d cert. whether making inquiry “into or 1569, 39 415 94 L.Ed.2d S.Ct. the trial could soon be rescheduled with 876. Benavides, in attendance.” the Circuit has not had While Fifth supra, finding at 140. A 596 F.2d later to further how the trial occasion discuss the fugitive during defendant was indeed a exercise that court should narrow discre failure his absence cаnnot excuse the to tion, most articulately a test was stated make inquiry, validity this “the v. by the Second in United Circuit States its does not court’s exercise of discretion Tortora, Cir.1972, 2 F.2d 464 prove events subsequent turn on whether denied, cert. 409 U.S. Bena disprove unsupported judgments.” 34 L.Ed.2d 516: vides, F.2d 140. We note supra, 596 at the proceed Whеther trial will will de- required analysis further the careful upon judge’s the trial determina- pend with a by proceeds Benavides before tion of a of issues. He must complex in absentia in accord with criminal trial the could weigh likelihood trial the circuits. See requirement ‍​‌​​​‌‌​‌‌‌‌‌​​​​‌‌‌‌‌​‌​‌‌‌‌​‌‌​‌‌‌‌​​​​​​‌‌‌​‌‍other place the soon take Loсhan, 960, 967- difficulty rescheduling, of present; (1st Pastor, Cir.1982); particularly tri- multiple-defendant Cir.1977); (2d F.2d als; the burden on the Government in Peterson, (4th F.2d trials, two having again undertake denied, Cir.1975), cert. particularly multiple-defendant tri- (1976)4. 47 L.Ed.2d 99 where the de- als the evidence analysis the Benavides Applying overlapping fendants often and more рresent case, we find that the decision might keep than one trial Govern- proceed with the trial in Beltran's ab jeopar- ment’s witnesses substantial sence, was an inquiry, without further dy. court’s abuse narrow discretion. of the de- At the the court noted time decisions, recognize ings. decisions also these cited re- These 4. In evidentiary hear- recognized, court holds an quirement was but in each where the trial decision issue, finding its on the factual to have trial was held not abused (each himself in- discretion to continue with the trial subject appellate review volving co-defendants), from trial after clearly requisite inquiry under errоneous standard. made court had and find- absence, it took no affirmative shortly appear. (The fendant’s statements made to steps to ascertain whether the accused by the court his attorney indicated that the located, might readily be and it made no defendant had been in court earlier in the possibility delaying into morning and that he possibly at his slightly commencement of the trial or of work.) The government did not the trial in order to obtain his rescheduling argue then that its jeop- witnesses would be attendance. ardized or unavailable if the trial was de- short, for a layed “[ojther short time. The teaching of Benavidеs and the the possibility juror inconvenience, than cited jurisprudence of other circuits is that the record great difficulty demonstrates no the important constitutional of a in rescheduling the trial.” su- criminally accused to be at his trial pra, cannot cursorily, inquiry, and without by deemed the trial court to have beеn In that we find that the district court waived simply because the accused is not abused its discretion proceeding with the present when should have Before been. in Beltran’s absence without further its exercising narrow discretion to com inquiry, VACATE the defendant’s con- mence or continue the trial in the defend victions оn all counts and REMAND for absence, ant’s the trial court must at the further proceedings. Accordingly, we do time make attempt not reach the question of whether the de- explanation ascertain the for the absence of fendant was denied effective assistance of whether, the accusеd balancing counsel. *5 likelihood that the trial could soon take VACATED and REMANDED. the defendant’s undue inconvenience or occa JOLLY, E. GRADY Judge, Circuit dis- by slight sioned or a delay rescheduling of senting: the district court could properly I respectfully dissent from the majority exercise its narrow discretion to commence opinion and the result it reaches. It re- or continue the trial in the absence of the wards a contumacious defendant for his accused. criminal conduct by setting aside convic- course, Of had an before the trial tion with the likelihood that he will never proceeded established for the record thаt prosecuted.1 be grant We this beneficence the defendant deliberately to the defendant notwithstanding unde- himself and that there was no reasonable niable waiver of the in We right question. probability he could shortly, be located faulty reach this result for the frail reason would be loath to say district cоurt that the district to the judge did not adhere would have by failing abused its discretion technicalities of a test-tube rule. procedural Here, to delay or reschedule the trial. At the outset it should be understood that made, no such and —under the real question involved here is whether Benavides —in the absence of such contem- there was a waiver. poraneous inquiry, the district court abused its narrow by cursorily proceed- discretion The defendant clearly had constitution- ing in the defendant’s absence. right present al at his trial. Pointer Texas, 400, case, 85 S.Ct. although the jury had selected, (1965); States, L.Ed.2d 923 Lewis v. no evidence had been рresented in the case when L.Ed. 1011 Beltran was U.S. (1892). found to be right provided absent from the courtroom. At This is further the time the defendant was found to be 43. The courts have long Fed.R.Crim.P. absent, nothing held, however, suggested rights that constitutional he would not located, by 1. Four of the six witnesses called doubtful whether can now be five governmеnt illegal aliens who had been later. completed. incarcerated until the trial was It is See, e.g., becoming in law knowingly example waived. Smith classic reason bemay by form and procedure. side-tracked States, 360 v. United U.S. by (1959) prosecution (right L.Ed.2d 1041 us take a look at the rule before Let States, 281 indictment); Pattоn v. United Starting the majority whose altar bows. (1930) 74 L.Ed. 854 50 S.Ct. U.S. requirement proceeding the last trial); v. United Puckett (right ‍​‌​​​‌‌​‌‌‌‌‌​​​​‌‌‌‌‌​‌​‌‌‌‌​‌‌​‌‌‌‌​​​​​​‌‌‌​‌‍jurors of course are inconven- the first: (10th Cir.1963) (right to States, 314 F.2d 298 delay in Any concluding proceed- ienced. are waived counsel). rights jurors. Fundamental How much in- ings inconveniences may impose federal with less demon- a wilful defеndant every day in courts convenience con- jurors here. citizen before the defendant’s clear intent than we have stration of as rights may adjudged aban- stitutional be that the defend- general requirement hardly question or waived? This doned waiv- that he is ant knows understands which to evalu- proper by seems standard right question. rights. ate constitutional Supreme The United States Next, upon government the burden question stated that expressly starting up again the trial and stopping the vol- by be waived may knowingly here viewed in of the effect terms primarily Taylor untary absence the defendant. always witnesses. upon the There is States, 94 S.Ct. flee other- possibility may witnesses (1973). L.Ed.2d 174 The Federal Rules unavailable. wise be Here some Procedure state expressly Criminal were aliens were incarcerat- witnesses who have “the shall be considered to lost, now, supposed, it is to be are ed whenever a waived his in their Mexico or in either back native defendant, initially present, voluntarily ab- in this would seem anonymity country. himself after has com- sents to me that burden on the (em- 43(b) menced.” Rule Fed.R.Crim.P. starting up again the trial and stopping added). Yet phasis says here panel where the significant. In this case always who represented it was were incarcerated aliens witnesses selection attorney, participated who which, how- significant, a fact particularly of his who knew of his undeniably *6 the to make little impression seems set, appeared and the date it who trial majority. the of in or around on the date courthouse we are difficulty rescheduling, of who, trial, him his once the trial told, the district is a consideration that commenced, before, absented shortly had take into Reschedul- court must account. years, four waive his himself for did not me, to be a always it would seem would ing, the present. to be Because Why? hardly there is an problem, since significant court did not make As “inquiry.” an district court. underworked states: panel brought the final consid- We are thus to course, had an Of before eration, and that the likelihood record that proceeded established for the take trial can soon defendant had absented deliberately view, my In this is the con- present. and that himsеlf was no reasonable there genuine signifi- which has any sideration that he located short- probability could be to cance. If the court has no reason ly, we would be say loath to believe defendant district court have abused its dis- would himself, pro- then trial should by failing delay cretion to or reschedule is, Thаt if the court has no reason ceed. the trial. has waived his defendant believe On this a convicted criminal technicality cannot right, amendment the waiver sixth when, here, likely However, has his conviction set aside and is as be assumed. attorney, go my opinion represented by free. obeisance this blind defеndant is a through to the technicalities of a rule has sat selection procedural date, in or appears knows of his around

the courthouse on the date his America, UNITED STATES of then family, disappears cannot be Plaintiff-Appellee, lawyer, located it is reasonable “voluntary” assume that absence is as 43, that he per gone Rule intends as Jesus AGUIRRE AGUIRRE Joe long as possible unlikely it Cervantes, Salvador the trial ‍​‌​​​‌‌​‌‌‌‌‌​​​​‌‌‌‌‌​‌​‌‌‌‌​‌‌​‌‌‌‌​​​​​​‌‌‌​‌‍can be rescheduled in the near Defendants-Appellants. future. No. 82-1547. If the Benavides rule of is to be applied methodically and mechanically Court of Appeals, sense, without regard tо common it seems Fifth Circuit. justice me that the ends of would at least Sept. 23, 1983. require that show that he

was prejudiced by the failure procedural for apply rules the in- Here,

quiry. clearly, the defendant was not

prejudiced. If the trial had been ad-

journed,

would not have been achieved. The court bench issued a warrant his arrest apparently

and the defendant was nowhere

to be found. was four later that he

reappeared. rigid Thus the district court’s every

adherence to detail of

inquiry would have meant that the de-

fendant’s his trial him;

would have secured to in other

words, there is no absolutely

which the defendant has suffered as re-

sult of the failing court’s to follow the rule

which as the majority’s serves basis for reckless,

rewarding irre-

sponsible, contumacious and criminal con-

duct. law recognize Benavides as the of this

circuit. The district courts should follow its

rules of whenever possible prac-

ticable. there require- But should be no

ment applied rigid- that Benavides must be case

ly every point us to

reversing a conviction when the known evi- reasonably

dence shows that If,

has voluntarily absented himself.

ever, we apply inflexibly, must ‍​‌​​​‌‌​‌‌‌‌‌​​​​‌‌‌‌‌​‌​‌‌‌‌​‌‌​‌‌‌‌​​​​​​‌‌‌​‌‍at least require should pres-

show some to his

ence at on account failure of the

district to apply Benavides.

Justice has thwarted and dissent.