Lead Opinion
MARTIN, J., delivered the opinion of the court, in which STRANCH, J., and THAPAR, D.J., joined. THAPAR, D.J. (pp. 770-73), delivered a separate concurring opinion.
OPINION
While serving a sentence for planting a pipe-bomb in a newspaper vending machine that exploded and killed his stepfa
I.
In 1984, a jury convicted Williams of planting a pipe-bomb in a newspaper vending machine, which exploded and killed his stepfather, and the district court sentenced him to 109 years imprisonment. Williams filed several petitions for post-conviction relief contesting his continued incarceration and alleging misconduct by prison officials. Williams filed one of these petitions in thе Western District of Tennessee, and it was assigned to Judge Breen. Judge Breen denied the petition on March 21, 2006.
On May 8, 2008, Judge Breen’s chambers received an envelope from Williams containing a white substance. The letter stated that the reader had just been exposed to one gram of anthrax, and the building should be cleared immediately. Curiously, the letter also stated, “Do Not Panic, Stay Calm!” The letter was signed by Williams and contained links to websites attempting to garner support for his release. Judge Breen’s law clerk discovered this letter and, understandably, did not stay calm. His clerk alerted officials who appear to have relatively quickly determined that the substance was not anthrax but just sugar.
Law enforcement determined that Williams was responsible for mailing the lettеr and, after a brief investigation, indicted him under 18 U.S.C. § 876(c) for mailing a threatening communication to a federal judge.
The district court appointed counsel to represent Williams. After a psychiatric exam revealed that Williams was competent to stand trial, the district court held a hearing on whether Williams could proceed pro se as he wished. Williams stated that he had several “self-taught” degrees including a juris doctorate. Williams had received a G.E.D. and, for a time, attended Blackstone School of Law in Dallas, Texas where he took courses in evidence, federal jurisdiction, and criminal law and procedure. After thoroughly questioning Williams about his qualifications and ability to represent himself, the district court granted Williams’s motion to proceed pro se and appointed “elbow counsel” to assist him. The court granted the motion in part because it realized that Williams’s trial strategy would likely put him in conflict with appointed counsel’s ethical obligations.
On the day trial commenced, Williams objected to appearing in front of the jury in prison attire and requested that the district court give him a budget to purchase clothing for the trial. The district court explained that it could not provide any funds, but Williams could change into other clothing if someone provided it to him. The district court also admonished
At trial Williams did not contest that he mailed the letter or that it was sealed in an envelope with a white powder and a warning that it contained anthrax. Williams admitted this in his own testimony, during his closing statement, and in a taped phonе conversation that the United States admitted into evidence. After the close of evidence, the jury quickly convicted Williams.
The district court scheduled sentencing for February 24, 2009. At the sentencing hearing Williams’s elbow counsel appeared but the Marshals Service did not bring Williams because of concerns that he would be disruptive. The Marshals Service claimed that since his last court appearance Williams had been extremely uncooperative and combative, and had threatened to cause a disturbance at his next court appearance. Because of this, the Marshals Service informed the district court that they would want Williams in full restraints along with three or four officers instead of the normal one or two if Williams needed to be prеsent. The record does not indicate why the restraints and extra guards would not be satisfactory, but the district court determined that it would be best to conduct the sentencing hearing using video conferencing technology without Williams physically present. Williams’s elbow counsel did not object.
Williams appeared by video at the sentencing hearing, which was held three days later. The video conference appears to have worked well with all parties able to clearly see and hear each other and Williams did not object to not being physically present in the courtroom. The district court sentenced Williams to five-years imprisonment to run consecutively with his prior 109-year sentence.
Williams’s appointed counsel raises six issues on appeаl. Williams also submitted a pro se supplemental brief alleging several additional errors in his trial and sentencing.
II.
After trial, the district court held an initial hearing without Williams and decided to conduct his sentencing hearing by video conference. Williams’s elbow counsel was present at this conference and did not object to this procedure. Three days later the district court conducted the sentencing hearing by video conference with Williams in prison and “appearing” on a video screen in the courtroom. At the time Williams did not object to not being physically present in the courtroom, but on appeal he argues that this procedure violated his right under Federal Rule of Criminal Procedure 43(a) to be present at sentencing.
A. Standard of Review.
Williams argues that we should review this claim involving an interpretation of the Rules of Criminal Procedure de novo. Cf. United States v. Davidson,
B. Whether the District Court Erred by Conducting the Sentencing Hearing by Video Conference.
The district court erred by conducting the sentencing hearing by video conference with Williams not physically present in the courtroom. With certain limited exceptions not applicable here,
Three different courts of appeal have addressed whether electronic “presence” by video conference at sentencing satisfies the requirements of Rule 43(a), and all have concluded that it does not. See United States v. Torres-Palma,
Although the United States makes much of the fact that the video conferencing worked well and the parties were able to clearly see and hear each other, that argument misses the mark. The quality of the video conference connection is irrelevant in this situation. Rule 43 requires that the defendant be present, which simply cannot be satisfied by anything less than physical presence in the courtroom. Being physically present in the same room with anoth
The United States argues that the error was harmless, but has failed to establish that Williams would not have received a lower sentence had he been physically present at sentencing. In harmless-error analysis, the United States bears the burden and “must demonstrate to the Court with certainty that the error at sentencing did not cause the defеndant to receive a more severe sentence.” United States v. Gillis,
District courts have broad discretion in selecting a sufficient sentence for each individual defendant. In light of this discretion, without any argument from the United States based on the unique facts of this case, we cannot now substitute our judgment for that of the district court and speculate as to what sentence Williams might have received had he been physically present. Therefore, because the United States did not carry its burden to establish that the error was harmless, and the district court erred by conducting the sentencing by video conference, we vacate Williams’s sentence and remand for resentencing.
III.
Williams also argues that the district court erred by sentencing him without first having a presentence report prepared. At the sentencing hearing, Williams did not object to proceeding without a presentence report and attempted to waive preparation of one. While we would generally review this claim for plain error, see Fed.R.Crim.P. 52(b), like Williams’s claim that he was denied the right to be present at sentencing, we also review this claim de novo because the United States has not asserted that plain-error review should apply.
Although it is not preferred, a district court need not obtain a presentence report before sentencing a defendant.
Presentence reports, while often an important resource, are not a mandatory part of the sentencing process. Both the Federal Rules of Criminal Procedure and the Sentencing Guidelines expressly provide that a district judge may sentence a defendant without a presentence report “[if] the court finds that the information in the record enables it to meaningfully exercise its sentencing authority under 18 U.S.C. § 3553, and the court explains its finding on the record.”
United States v. Brown,
Here, the district court erred by relying on Williams’s waiver to impose a sentence without first obtaining a presentence report. Although the district court conducted the sentencing hearing before this Court issued its decision in Brown, the Guidelines in effect at the time of sentencing stated that a defendant may not waive preparation of the presentence report. U.S.S.G. § 6Al.l(b) (2008); cf., e.g., United States v. Orleans-Lindsay,
Because the use of video conferencing requires us to vacate Williams’s sentence and remand for resentencing, we expect that the district court will either make the requisite finding that a presentence report is not necessary or obtain a presentence report before resentencing Williams.
IV.
Turning back to the pre-trial proceedings, Williams argues that the district court did not make the necessary findings that he had knowingly and voluntarily waived his right to counsel. The United States argues that we should review this claim for plain error, but this Court has not clearly identified what the appropriate standard of review is. Some of our prior decisions apply a de novo review, while others review for plain error. See United States v. McBride,
The Sixth Amendment guarantees criminal defendants the right to trial counsel and also the right to proceed without counsel. Faretta v. California,
The district court’s questioning substantially covered the thirteen model questions drawn from the Bench Book and it gave Williams a stern admonishment against proceeding without counsel. Williams, however, argues that the district court did not make the requisite finding that he had knowingly and voluntarily waived his right to counsel and instead stated, “I find that you have the requisite knowledge, education and ability to represent yourself in this matter.” The court continued, “You know what you want to do and so you are capable of doing that.” Although the district court did not specifically find that Williams had knowingly and voluntarily waived his right to counsel, the colloquy establishes that Williams’s waiver was knowing and voluntary, аnd the district court substantially made the required finding.
Additionally, there is no suggestion that Williams’s waiver was not knowing or voluntary. Accordingly, we hold that the district court properly questioned Williams and determined that his waiver of the right to counsel was knowing and voluntary.
V.
On appeal, Williams also asserts that the district court erred by forcing him to proceed at trial in prison clothing. However, the district court did not prohibit Williams from wearing clothing of his choice at trial, and did not violate his rights by failing to provide him with alternate clothing. A criminal defendant cannot be forced to appear at trial in prison clothing. Estelle v. Williams,
VI.
Williams argues that the United States presented insufficient evidence to establish his guilt. However, the evidence presented at trial was more than sufficient to establish Williams’s guilt. When a criminal defendant does not make a motion for a judgment of acquittal at the close of evidence, reversal is only appropriate on appeal if a “manifest miscarriage of jus
In order to establish a violation of section 876(c) in this case, the prosecution was required to establish beyond a reasonable doubt that: (1) the defendant mailed a communication containing a threat to kidnap or injure a person; (2) the defendant acted knowingly; and (3) the recipient was a United States judge. 18 U.S.C. § 876(c).
However, far from establishing a miscarriage of justice, the evidence in this case appears to overwhelmingly establish Williams’s guilt. There was never any serious dispute that Williams mailed the letter purporting to contain anthrax. He admitted at least twice during trial that he had done it and the government introduced a taped phone conversation where Williams admitted sending the letter. Accordingly, the record is not devoid of evidence pointing to guilt and we affirm Williams’s conviction.
Williams argues that the evidence was insufficient because, although he mailed the letter, it did not contain a threat. Whether a writing is a threat is a question of fact for the jury. United States v. Malik,
A threat is a serious statement expressing an intention to injure any person which under the circumstances would cause apprehension in a reasonable person as distinguished from idle or careless talk, exaggeration or something said in a joking manner. It is not necessary for the government to prove that Mr. Williams intended to carry out a threat or to prove that Mr. Williams is capable of carrying out a threat.
It is also not necessary for the government to prove that the recipient actually felt threatened.
At trial the clerk who opened the letter testified that the whole experience was “nerve wracking” and the United States presented evidence about the emergency response before authorities discovered that the substance was not actually anthrax. Under this objective standard, the record is not devoid of evidence establishing that the letter was a threat. Therefore, we hold that the jury’s conclusion that the letter was a threat is supported by sufficient evidence.
This communication was a threat even though the danger of harm incurred immediately upon opening the letter and not at some future point. Williams argues that the message could not be a threat because it did not contain any prospective warning; the harm of being exposed to anthrax occurred as soon as the recipient opened the letter. Essentially, Williams contends that a threat must be something akin to, “Grant my release or I’ll break your legs,” and merely breaking legs would not be a threat. However, if Hollywood’s portrayal оf the mob world has taught us anything, merely breaking legs can be a threat. When Sam “Ace” Rothstein directs guards to smash a cheater’s hand in Martin Scorsese’s Casino, a reasonable person could interpret that as a threat. Casino (Universal Pictures 1995). The act is objectively a threat even though some severe harm occurred immediately. Similarly, several scenes in the critically acclaimed
Over a dissent, the Third Circuit also concluded that communications containing fake anthrax, similar to the one Williams sent, were threats within the meaning of the statute even though they created an immediate fear of harm. United States v. Zavrel,
VII.
Williams’s argument that the district court erred by failing to charge the jury that the United States must show Williams had the specific intent to threaten is also without merit. This Circuit reviews a district court’s decision not to give a requested instruction for abuse of discretion. United States v. Henderson,
This Court has not decided whether the United States must establish that a defendant had the subjective intent to threaten in order to establish a violation of section 876(c) and we do not decide that issue at this time. Although we have previously held that section 875(c), which, analogously, prohibits sending threats to kidnap or injure a person, is a general intent crime, United States v. DeAndino,
VIII.
In addition to the six issues appointed counsel raised on appeal, Williams submitted a pro se brief alleging an additional nine errors. Generally, these claims relate to (a) whether Williams was proрerly removed from the courtroom for inappropriate conduct; (b) whether the trial judge needed to recuse herself; (c) whether the court properly denied Williams’s request to serve eighteen subpoenas; (d) whether the district court should have appointed an investigator; (e) whether there was prosecutorial misconduct; (f) whether the district court sentenced Williams outside the statutory limits; and (g) whether Williams’s counsel was ineffective. Because Williams was represented by counsel on this appeal, we decline to address these pro se arguments. Cf. United States v. Martinez,
IX.
While most of the issues that Williams raises on appeal are not meritorious, the district сourt did err by conducting the sentencing hearing by video conference and without a presentence report. Therefore, we AFFIRM Williams’s conviction but VACATE his sentence and REMAND for resentencing with Williams present in the courtroom.
Notes
. The United States argues that Williams was properly excluded from the courtroom because he was unruly and the Marshals Service was concerned about restraining him. However, the United States does not argue that Williams's disruptive conduct brought him within the exception in Rule 43(c)(1)(C) that permits a court to exclude a defendant who persists in unruly conduct after a warning, and this exception does not apply because the district court did not first warn Williams before removing him.
Concurrence Opinion
concurring.
I join the majority’s opinion in full. I write separately only to express my concеrn with a rule adopted in this and other circuits that allows parties to unilaterally waive plain error review.
Judges are not like the supercomputer Watson. See http://www.engadget.com/ 2011/01/13/ibms-watson-supercomputer-destroys-allhumans-in-jeopardy-praet.
They can do their best to be prepared with the Rules of Procedure and Evidence, the relevant constitutional law, and applicable statutes — all refracted through two layers of precedent. But they have no hope of knowing everything, and when unfamiliar issues arise in the courtroom, they will not catch them every time. Even when they do, they cannot always delay the proceeding to find the right answer. Clogged dockets and the delay imposed on parties’ lives mean time is of the essence. Fortunately, in our adversarial system, judges have some helр.
The plain error rule, Rule 52(b) of the Federal Rules of Criminal Procedure, broadens responsibility for catching inevitable mistakes and prioritizing which are worth worrying about. See Puckett v. United States,
The district judge is not the only one to benefit. Naturally, the rule preserves systemic judicial resources by “eneourag[ing] all trial participants to seek a fair and accurate trial the first time around.” Johnson,
So preserving Rule 52(b) as a limit on appellants’ potential relief is important. Rules that allow courts to casually disregard it would be “fatal.” Puckett,
First, allowing parties to unilaterally waive plain error review is hard to square with the language of Rule 52, which says nothing about the ability to waive the standard of review. And it is hard to reconcile with the Supreme Court’s interpretation of that language. The Olano Court said that courts of appeals “cannot” reverse decisions based on forfeited errors “unless Rule 52(b)” or some other provision allows it.
Second, proponents of this waiver rule have yet to offer a compelling explanation. Some courts have offered no explanation. See, e.g., United States v. Tapia-Escalera,
Similarly, the D.C. Circuit offered, in a footnote, that parties are supposed to state whether they dispute their opponents’ proposed standard of review under Federal Rule of Appellate Procedure 28(b); otherwise, the D.C. Circuit assumes the point is conceded. United States v. Cyr,
Also allowing waiver of Rule 52(b)’s plain error requirement, the Seventh Circuit analogizes to other instances in which a party is allowed to waive arguments that his opponent has “waived” an opportunity for relief. In United States v. Leichtnam, for instance, the Seventh Circuit held that plain error review did not apply, even though the defendant failed to object to an error below, because the government neglected to argue that the defendant had “waived” the error by not objecting.
Set aside this view’s conflict with the text of the rule, its conflict with the Supreme Court’s interpretation of the rule, and- the failure to distinguish between review of “waived” arguments (subject to no rule of procedure) and review of “forfeited” arguments (subject to Rule 52(b)). The Seventh Circuit’s analogy overlooks an important nuance. Sure, a court of appeals can examine an otherwise forfeited issue (e.g., was it error to sentence Williams by video?) if a party fails to notify the court of the forfeiture. But this does
Courts seem to confuse this distinction because they simply read Rule 52(b) as controlling ivhether they can even address a forfeited issue in the first place, not as supplying a standard for how the court should review that issue. What they overlook is that Rule 52(b) contains both a “whether” and a “how.” On the one hand, the Supreme Court has interpreted Rule 52(b) as limiting “whether” courts of appeals can even consider an issue. Courts of appeals can only consider forfeited issues if they represent a “miscarriage of justice.” Olano,
Interpreting Rule 52(b) this way is consistent with the Seventh Circuit’s analogies. In the same way that a respоndent could waive an objection to allowing a court to consider a habeas issue otherwise procedurally defaulted, an appellee can waive an objection to a court of appeals considering a forfeited issue even though it does not represent a miscarriage of justice. But the respondent could not also waive the standard of review for the habeas issue, and neither could an appellee waive application of the plain-error-affecting-substantial-rights standard of review for the forfeited issue.
Accordingly, while I think the majority’s decision is correct under the applicable law, I respectfully fear the applicable law in this and other circuits is wrong. The Eighth Circuit is on the right side of the split. And at least until Watson makes his way into every courtroom, plain error review ought to be unwaivable.