United States v. William B. McPherson
421 F.2d 1127
D.C. Cir.
1969
Check Treatment

*1 America UNITED STATES of McPHERSON, Appellant.

William B.

No. 22312. States Court of District Columbia Circuit.

Argued June Oct.

Decided Washington, Caldwell,

Mr. John H. court) (appointed D. C. pellant. Watkins, U.

Mr. Robert P. Asst. S. Bress, Atty., Messrs. David with whom G. Atty., U. time the brief was S. filed, Nebeker, Q. and Frank Asst. U. filed, Atty., S. the time brief was brief, appellee. were on the Messrs. Flannery, Atty., Thomas A. U. S. Roger Zuckerman, Atty., E. Asst. U. S. appearances appellee. also entered BAZELON, Judge, Before Chief Judges. ROBINSON, TAMM BAZELON, Judge: Chief Appellant, who was during petit larceny his trial degree burglary, second failed to return designated to court at the time. After *2 journed jury continued and the until delay, was dismissed day’s his trial morning. Monday Dis- the contends him. He without proceeding the with erred trict Court Friday, 19, 1968, April On court the he made since in his absence trial hearing held a mo- bond review amendment of his sixth competent waiver appellant explained The he tion. challenges rights. his five-to- He sought his release in order to locate wit- burglary and con- fifteen-year sentence Inc., Bonabond, for nesses expressed his defense. sentence; he larceny one-year current willingness its to act as third objection consecutive to raises no the party appellant, for custodian jumping five-year which sentence organiza- appellant to that court imposed time. the same informing tion, to him that he was after Monday, April appear at a. m. on 9:45 I. ap- appellant 1968. The failed Monday morning, pear and a recess on officers, police In December two pro- to that afternoon likewise failed call, housebreaking responding to a morning, Tuesday duce him. defense On hallway prehended appellant of an informed the court that efforts building carrying apartment a radio appellant locate the had unsuccess- belonged to a resident of the build- which ful and recommended that the de- custody, ing. Appellant into was taken clare a mistrial since $5,000, appel- and bail was set at only defense witness Following a lant was unable to meet. there was no defense case. trial January 3, 1968, hearing, ap- preliminary chose, court over defense counsel’s ob- pellant February on was indicted jection, appellant’s to continue the trial in degree burglary, second 22 D.C.Code § authority absence under of Rule of 1801(b), larceny, petit D.C.Code the Federal Rules of Criminal Proce- 15, 1968, appellant 2202. On March § Following dure.2 the close of the Gov- arraigned guilty pled not case, defense motion ernment’s counsel’s following both counts. The week denied; acquittal of Court of reviewed General Sessions opening state- counsel then waived his money conditions for release reduced simply ment for the record from As bond $5000 $1000. that continued efforts to locate bail, his counsel was still unable to raise proved The trial court unsuccessful. requesting April filed a motion on appellant appellant’s then ruled that absence from party be released to the third voluntary trial and sent case custody Bonabond, At the com- of Inc.1 jury,3 which returned verdicts April Thursday, mencement trial on Ap- on both counts indictment. ruling the court on the Mo- reserved May 2, pellant apprehended on tion to Amend Conditions Release sentencing hearing 2, 1968, August At receiving following day. til the After inquired court into the circumstances testimony policemen of the two who appellant, surrounding appellant’s had arrested trial was ad- failure to punish-' Bonabond, Inc., prosecutions an arm for offenses not Planning Organization, Washington’s by death, the defendant’s able anti-poverty agency, been com- staffed ex-con- absence pre- presence Among functions, supervises shall not victs. in his its menced indigent continuing recognizance includ- the trial to and bonds for selected vent ing of the verdict. defendants. return pertinent disposition provides part: of this 2. Rule 43 our 3. Because appellant’s The defendant shall be reach we do plain every arraignment, stage his absence it was the trial tention jury give including impaneling jury court the trial error permitting verdict, inference an and the return of the and at the instruction unexplained imposition sentence, except guilt provided by property. recently otherwise these rules. stolen diligent again effort to locate that his honest and ruled appear at trial and he out “on the streets witnesses when was absence they generally hang out” from where Friday on bond when was released II. Sunday sleep, “[Rook- when went to be people or hoping to see these *3 amendment sixth inheres in which course, least learn their residences.” Of by Rule 43 codified and has been did it is that his search uncontroverted Rules of Criminal Federal fruit,5 subsequently not he be- bear recognized being of fun long as depressed personal came reasons and just adminis importance to the damental got drunk, that, although not in hid- and v. Pointer law. tration criminal ing, lawyer or the he failed contact 1065, 405, Texas, 400, 85 S.Ct. 380 U.S. by court and could not found Bona- be (1965); United Diaz v. L.Ed.2d 923 13 States, bond. 250, 442, 455, S.Ct. 223 U.S. 32 (1912); v. United 56 500 Cross L.Ed. implausibil whatever 56, 58, States, 325 U.S.App.D.C. 117 narrative, ity of McPherson’s volun 629, a (1963). de Faced with 631 F.2d tariness of his absence from the court por present at a not fendant who was by room must be determined whether unable to thus tion of trial and was warning given As sufficient. was behalf,4 testify courts in own in United this court made clear Cross v. responsibility of deter have the serious States, supra, look to the stand we will mining clearly established “it whether is Zerbst, 304 v. ards set forth Johnson voluntary.” Cure 1461, that his absence 458, 1019, [was] 82 L.Ed. 58 S.Ct. U.S. States, U.S.App.D.C. ton v. United 22, 130 gov (1938) when 146 A.L.R. 357 671, (1968). 396 F.2d 676 a ernment claims rights defendant waived and story under the sixth amendment comprehend of his defendant’s To the Su Rule 43. In Johnson v. Zerbst must at- search we for two witnesses preme Court defined constitutional waiv tempt appreciate the environment relinquishment or er “an intentional as numbers which moves. To men with right priv abandonment of a directory, known telephone addresses in the and ilege.” 464, secretaries, may 304 U.S. 58 S.Ct. fixed office hours and added).6 (emphasis estab- making Cross 1023 seem dubious that defendant was know this McPherson claims to witness in his ab- 4. The continuation of the trial by only sight by seriously appellant, not name. prejudiced and who sence explain possession desired to of “in Johnson v. Zerbst standard government goods witnesses which the telligent competent waiver,” 304 having been removed identified as 458, 1019, applied in U.S. 58 S.Ct. apartment building in which by right that case to be assisted apprehended. no There seems to be This has also been counsel. standard testify that his intention doubt govern con held to the waiver of other previously serious, received since he had rights, g., e. fifth amend stitutional judge’s that he could assurance the trial against privilege ment self-incrimination , being impeached by his do so Arizona, 444, 436, Miranda v. 384 U.S. no one testified criminal record. Since 1602, 694, A.L.R. S.Ct. 16 L.Ed.2d 10 86 defense, effect of the instruc- for the [“voluntarily, knowingly (1966) 974 3d may be which inference tion intelligently”], Illinois, Escobedo v. unexplained from the drawn 478, 490, 1758, 14, U.S. n. 84 S.Ct. 378 recently property to assure stolen (1964) [“intelligently 12 L.Ed.2d 977 verdict. knowingly”], Proctor States, 241, 243, U.S.App.D.C. he learned one 5. McPherson testified that (1968) [“intelligently nar- F.2d overdose of had died witness by understanding”]; right to trial When cotics Baltimore. witness, jury, Mc Adams v. United States ex rel. he dis- the other stumbled Cann, cooperate played L. U.S. 63 S.Ct. not his determination intelligent”] fleeing; (1942) [“express, by shooting Ed. 268 at McPherson (Bail 2), merely No. lease” Reform Act Form it is lishes that corollary, that “the which he understood its but pres- penalties applicable in the forfeitures when one continue * * * appear intelligently ent, that I waived. event fail must be required.” penalty Yet listed on Form No. 2 additional is that “an III. may There criminal case instituted.” the trial In the any specific warning other con- is sequences insis to be commended nor set forth the form expected making that he tence in clear court, advising any delivered the trial present when voluntarily absented if be It would be difficult resumed.7 himself he would be deemed unaware lieve constitutional testi- waived fy *4 his consequences follow against serious would to and confront the witnesses Indeed, appellant as appear. failure to him so that the continue trial could with- acknowledged by pleading this much as out him. bail, he was guilty jumping for which to warning, Absent it such was incumbent imprisonment term for a sentenced to on the court to determine whether the con years, run to of than five not less appellant his knew in fact that trial year secutively fifteen to his five go would on him. Neither de- burglarly question the sentence. But fense counsel nor the de- Government appellant was still remains whether the apprised veloped facts in the District Court on -jumping pen besides that adequate which to rest an consideration consequence be an would alties additional Although appears of this issue. claim his absence, the continuation trial dubious, are we constrained remand guilty plea. tantamount to a oppor- appellant the case afford bail, appel- tunity support develop To secure his on release factual Spec- signed lant “Order Part IV of the his contention was not that his absence ifying voluntary Re- truly Methods and Conditions it not a since was waiver States, plea U.S. v. United 2S1 and Patton the defendant’s amounted to a waiv- 312, 253, rights 276, L.Ed. 854 50 S.Ct. 74 er of his and to confrontation trial intelligent”]; (1930) [“express jury, truly voluntary by and and “it cannot be relinquished rights possesses the combination less the defendant under- Boykin through guilty plea, standing Ala- a v. of the law in relation to the 1709, 238, plea bama, 242, U.S. 89 S.Ct. facts” and “if a 395 defendant’s is equally (1969) knowing, [“intelligent and it L.Ed.2d 274 and 23 voluntary”], McCarthy process United been obtained in and v. violation of due 459, 1166, States, 466, 22 and is therefore 394 U.S. at 394 U.S. 89 S.Ct. void.” case, (1969). at 418 In the latter 89 S.Ct. 1171. L.Ed.2d Supreme explicitly reaffirmed Court Immediately v. 7. Johnson before the trial court or- the standard enunciated appellant bond, Zerbst, applying guilty pleas . under dered the it following exchange place: the Federal of Criminal took Rule 11 of Rules Monday morning 466, THE 394 89 S.Ct. COURT: at U.S. at McCarthy, in- 9:45 there will no excuses whatso- defense your accepted by de- ever the District that this Court formed Court you appear. failure Do under- of the conse- fendant advised guilty plea; quences then stand? of a plea product THE I will be DEFENDANT: here. was not a promises I will be here. he under- threats and that sickness, any- plea THE a COURT: Not such waived stood thing thing jury However, is one that can he had trial. —there you interim, happen sentenced, I and am defendant moved to set aside wishing upon you. judge plea had aside because the trial that, you personally determine will be here. addressed him to plea I will. The THE DEFENDANT: Court (Tr. affirmed, Supreme 41). but held that Court reversed. Court

H31 27, 22, Zerbst, States, U.S.App.D.C. right.” 130 United Johnson “known a Moreover, 671, States, supra. (1968). 676 F.2d supra; Cureton v. Zerbst, oft-quoted case Johnson v. below vacated 1019, L.Ed. S.Ct. U.S. remanded; Court if District case (1938), speaks of a 146 A.L.R. 357 knowingly waiv- concludes “intelligent” “proper” waiver as be- trial, may present at ed case, depend, in each one that “must otherwise, judgment; reinstate particular facts and circum- trial new afforded a must be surrounding that includ- stances opportunity at which will have ing background, experience, conduct voluntarily (unless knowingly at accused.” 304 S.Ct. U.S. foregoes it) appear recite principles Applying these story case we find that Remanded. possessor was the of the “worst” crim- inal record that trial had seen Judge TAMM, (dissenting): twenty in his months criminal question is not The real this case (Sent. 7-8.) trial Tr. This bench. knew that the defendant whether history record a of over 20 shows proceed in but his absence could span within the victions and 40 arrests right to that he whether he knew (Sent. years. 7.) His Tr. it. waived were, “background” “experience” *5 recognize majority this seems least, Regarding very his broad. the conduct, speaks to enable the when it of a remand beginning after we note that support develop “to factual defendant pres- appellant’s non-capital that his absence was his contention truly voluntary (McPherson jail up ence it not a waiver since was day trial), including his first ” (Majority opinion right.’ a ‘known judge permitted re- McPherson’s right 1130; added.) emphasis that locating purpose of lease for the wit- right present. to be was involved was urging Upon the of the nesses. Govern- it that if the defendant Thus follows ment, however, cautioned known that he had a knew should have that the resume trial would present, absence morning Monday at 9:45 : (and there absence is no doubt THE COURT: will be [T]here voluntary) a waiver of that accepted by this excuses whatsoever right.” “known your appear. Do Court for failure While Rule Rules Federal you understand? implementing Criminal I here. THE DEFENDANT: will be amendment, sixth re mandate I will be here. * ** “present quires a defendant to be sickness, any- THE Not COURT: every stage trial,” permits, thing thing one pun prosecutions —there for offenses “[i]n interim, you happen can by death, the ishable defendant’s volun wishing upon you. I am not tary absence trial has been com * * that, you aside from will be here. presence menced Fed. added.) (Emphasis R.Crim.P. 43. We THE DEFENDANT: will. providing construed this rule as have 41.) (Emphasis supplied, Tr. liberty if a “that remains Monday The defendant wasn’t there on during away may pro trial the court issued, when nor on a bench warrant clearly provided it ceed established Tuesday when the trial resumed over voluntary. must his absence is He absence, objection. his counsel’s taking place, processes aware he was convicted. obligation and of his sentence, at- At present, the time and he sound rea must have no tempted explain remaining away.” He said his absence. Cureton v. son Sunday night and did asleep that he fell evening Monday until not awaken 5). (Sent. He related Tr. at

4:30 arising attempt to con- he did attempt anyone did he tact nor during the the court or his

tact ensuing days when he of his absence looking for in the street” was “back 6). (Sent. Upon this Tr.

witnesses testimony,1 his absence the court found Cureton, Rule I do likewise. the Sixth Amendment

followed.

I would affirm. Washington, Quiggle, Mr. James W. C., court) (appointed by

D. pellant. Watkins, U. S.

Mr. Robert P. Asst. Bress, Atty., with whom Messrs. David G. Atty., at the time the brief U. S. Q. filed, Nebeker, S. Asst. U. and Frank filed, Atty., at the time the brief was brief, appellee. were on the RODGERS, Appellant, Beverly J. Judge, BAZELON, BUR Before Chief * LEVENTHAL, GER America, UNITED STATES Judges. Appellee. No. 21725. PER CURIAM: *6 States Court year-old Appellant, itinerant sales- a 74 District of Circuit. Columbia taking challenges man, his convictions belong- Argued having Feb. 1969. in mail (1964), others, U.S.C. § Decided Oct. ground used the evidence illegally We obtained. convict produced this

hold that the search which challenged from an resulted evidence ob- the material lawful arrest and in- therefore in the tained search at his trial.1 admissible apparently and im underwent Between the time conviction 1. The position first, ar of sentence which occur searches. In the three brought jail. again While hallway rested and prior to his arrest red jail awaiting he wrote a let sentence building apartment in which ter to the trial apologising police apprehended, officers ex great poor explaining, ap of the suitcases the contents amined surrounding detail, his absence. the facts search, carrying. pellant The second My reading me letter convinces of that place apartment hallway, took also in the knowledge full object up and turned his arrest consequences of his acts and had no opener (variously as a letter described returning courthouse intention pants pocket. knife) Subse rights and unless forced. He knew his station, police quently at chose to take knew his chances —he produced strip search which underwent a latter. (none pieces taken of which was of mail * ap building apartment Judge Burger participate in which from the did arrested) pellant disposition laid the in this case.