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UNITED STATES v. CANADY

March 19, 1996

UNITED STATES OF AMERICA
v.
MARCUS CANADY, Defendant.



The opinion of the court was delivered by: LARIMER

 On February 2, 1994, I issued a Decision and Order finding defendant guilty on both counts of the indictment. I subsequently sentenced Canady to a term of imprisonment of eight years and five months.

 Canady has now filed a motion, pro se, to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255. In his motion, Canady raises three grounds for relief: (1) the court did not announce its verdict in open court in the presence of the defendant; (2) the court erred in finding that the firearms in question were "used" in relation to a drug offense; and (3) Canady was denied his right to effective assistance of counsel on appeal because his appellate attorney did not raise grounds (1) or (2) on direct appeal. For the reasons that follow, the motion is denied.

 DISCUSSION

 I. Announcement of Verdict in Open Court

 At the conclusion of the trial on January 24, 1994, I reserved decision, stating to defendant that "I want to consider the cases submitted by you and your lawyer, and I will get a decision to you and your lawyer as soon as I can." Transcript at 160. I issued my Decision and Order on February 2, 1994.

 Defendant now contends that this violated Rule 43(a) of the Federal Rules of Criminal Procedure, which states:

 
(a) Presence Required. The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule.

 Defendant contends that because the court issued a written decision, a copy of which was mailed to his attorney, he was denied his right to be present at the "return of the verdict."

 I am not persuaded by this argument. Although there do not appear to be any reported cases directly addressing this issue, I believe that the most logical interpretation of Rule 43(a)'s use of the word "verdict" is that the rule is referring to the return of a jury verdict, not the issuance of a decision after a bench trial. For one thing, Rule 31, which deals with verdicts, states that the verdict "shall be returned by the jury to the judge in open court." Fed. R. Cr. P. 31(a) (emphasis added). Thus, the rules appear to assume that the word "verdict" means a jury verdict.

 Second, the reasons underlying a defendant's right to be present at trial do not support a right, after a bench trial, to have the court announce its findings in the defendant's presence. "[A] defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure." Kentucky v. Stincer, 482 U.S. 730, 745, 96 L. Ed. 2d 631, 107 S. Ct. 2658 (1987) (emphasis added). The Supreme Court has "emphasized that this privilege of presence is not guaranteed 'when presence would be useless, or the benefit but a shadow.'" Id. (quoting Snyder v. Massachusetts, 291 U.S. 97, 106-07, 78 L. Ed. 674, 54 S. Ct. 330 (1934)). Thus, "the existence of a right to be present depends upon a conclusion that absence could, under some set of circumstances, be harmful." Polizzi v. United States, 550 F.2d 1133, 1138 (2d Cir. 1976).

 This reasoning suggests why a defendant should be allowed to be present when the jury announces its verdict. Things can go wrong when a jury verdict is announced. It may appear that the verdict is less than unanimous, incomplete, or inconsistent. Once the jurors have been dismissed, it can be difficult or impossible to resolve such problems. By being present at such a critical moment, a defendant can express his concerns to his attorney, or, through his counsel, to the court.

 These concerns, however, do not present themselves in the context of the issuance of a written decision after a non-jury trial. There is no danger of a non-unanimous verdict, and any possible errors or discrepancies in the decision can be addressed in a post-trial motion or on appeal. Thus, being present ...


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