Appeal from a judgment of conviction entered by the United States District Court for the Southern District of New York, Carter, Judge, after a jury trial convicting appellant in absentia of conspiring to distribute and to process with intent to distribute cocaine, and of distributing cocaine.
Before PIERCE, WINTER, and MINER, Circuit Judges.
This is an appeal from a judgment of the United States District Court for the Southern District of New York, Robert L. Carter, Judge, entered as to Ramon Sanchez on April 16, 1985, after a jury trial in absentia on November 8, 1984, convicting him and a co-defendant of conspiring to distribute and to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846, and of possessing with intent to distribute and distributing cocaine in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A) and 18 U.S.C. § 2.
Appellant argues principally that it was error for the district court to proceed with the trial in his absence; that the district court's instructions relating to this absence from trial were prejudicial; and that his trial lawyer's failure to make opening or closing statements or objections to the admission of evidence or to cross-examine witnesses violated his constitutional right to effective assistance of counsel.
We hold that the district judge id not abuse his discretion in ordering the trial in absentia ; that it was harmless error to give a "flight" instruction under the circumstances; and that the defendant was not denied effective assistance of counsel under the Sixth Amendment. We affirm.
Ramon Sanchez was arrested by New York City police officers on August 21, 1984, following a drug transaction that he allegedly facilitated between an undercover agent and Sanchez's co-defendant, Fidel Garcia. The defendants were indicted on September 4, 1984. On September 13, Lawrence Gross, Esq., was assigned as counsel for Sanchez, and Joseph Stone, Esq., as counsel for Garcia.
The district court's findings make clear that, on September 25, 1984, at the only pretrial conference before the district judge, Garcia was absent, but his attorney, Stone, was present. Sanchez's lawyer, Gross, was not present at the first call of the calendar but was present at the second call. Sanchez had been taken from his cellblock to the courtroom that morning, and was present when his case was called and the trial date set for November 7, 1984.*fn1 The record does not indicate where Sanchez was located in the courtroom, or that an interpreter was present, or that there was any communication with or acknowledgment of Sanchez by the district judge. Mr. Gross protested that he had met with his client only once, had not yet examined the indictment, and had not yet determined how he would proceed. The district judge directed that any motions be filed by October 12, 1984. None were filed. On October 15, 1984, Sanchez was released on $1,000.00 bail. The record indicates that on October 16, 1984 Sanchez was rearrested on a separate federal narcotics charge. Having failed to appear in that case, he was ultimately arrested on a bench warrant on February 2, 1985, following which he pleaded guilty to an information and was sentenced.*fn2
In the instant case, on the scheduled trial date, November 7, 1984, co-defendant Garcia and the two defense lawyers were present, but Sanchez was not. The case was called at approximately 10 a.m. The prosecutor stated that Sanchez had been rearrested on October 16, 1984, for "engaging in similar conduct"; this led to the issuance of a bench warrant, signed that day by Judge Keenan, for Sanchez. Then, a jury was selected, following which there was some discussion about proceeding with a trial of Sanchez in absentia ; a Spanish interpreter was sworn; and at approximately 11 a.m. the case was continued until the following day, November 8, at 10 a.m.
On November 8, over objection of Sanchez's lawyer, the district judge granted the government's application for Sanchez to be tried in absentia. The trial began that day at approximately 10 a.m. and ended at 12:35 p.m. Sanchez's lawyer chose to remain silent throughout the trial, except that he joined in Mr. Stone's motion for judgment of acquittal, and he made tow objections to the court's instruction to the jury regarding Sanchez's absence. At 3:35 p.m., the jury returned a verdict of guilty on each of the two counts against Sanchez.
It has long been settled that a defendant charged with a crime may knowingly and voluntarily waive his constitutional right to be present at his trial. See, e.g., Diaz v. United States, 223 U.S. 442, 456-58, 56 L. Ed. 500, 32 S. Ct. 250 (1912); United States v. Tortora, 464 F.2d 1202, 1208-09 (2d Cir. 1972), cert. denied, sub non. Santoro v. United States, 409 U.S. 1063, 93 S. Ct. 554, 34 L. Ed. 2d 516 (1972). "It must clearly appear in the record . . . that the defendant was advised when proceedings were to commence and that he voluntarily, knowingly, and without justification failed to be present at the designated time and place before the trial may proceed in his absence." Tortora, 464 F.2d at 1209 (citing cases). This clear rule is ...