Transcript

IN THE SUPREME COURT OF THE UNITED STATES

MICHAEL CROSBY, Petitioner v. UNITED STATES

No. 91-6194

November 9, 1992

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 1:38 p.m.

APPEARANCES:

MARK D. NYVOLD, ESQ., St. Paul, Minnesota; on behalf of the Petitioner.

RICHARD H. SEAMON, ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; on behalf of the Respondent.

PROCEEDINGS

1:38 p.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument next in Number 91-6194, Michael Crosby against the United States. Mr. Nyvold, you may proceed whenever you're ready.

ORAL ARGUMENT OF MARK D. NYVOLD ON BEHALF OF THE PETITIONER

MR. NYVOLD: Mr. Chief Justice, and may it please the Court:

This case involves an obvious clear-cut violation of Rule 43. That the violation is an obvious one comes from the plain wording of Rule 43. The rule requires that a defendant be present at the beginning of his trial and prohibits the trial in absentia of a defendant who's not initially present.

If the plain language weren't enough the --

QUESTION: Mr. Nyvold, would you speak up just a little bit. Either that, or raise the --

QUESTION: There's a crank at the right there.

MR. NYVOLD: Thank you.

The advisory committee notes are conclusive as to what Rule 43 means, even if the plain language weren't I'd like to --

QUESTION: Why should the advisory committee notes be conclusive? I mean it's this Court that adopts the rule.

MR. NYVOLD: That's true. But the Government is saying that Rule 43(a) does not address the situation of a defendant who's not present for the beginning of his trial, and the advisory committee notes are helpful in showing that the situation of a defendant not initially present was contemplated by the drafters of the rules and that the rule was intended to address that.

QUESTION: Well, you -- that's all perfectly legitimate argument, but you said the advisory committee notes are conclusive.

MR. NYVOLD: I think -- I'm sorry, I think I used too strong a word. The advisory -- the rule, the plain wording in the rule, obviously, is conclusive, first of all because it's not ambiguous, it's clear on its face. But since the Government is saying the plain wording of the rule doesn't control this situation, it is helpful to look at what the advisory committee said.

First of all, the advisory committee notes that are appended to the rule specifically speak of the defendant's -- the defendant's presence being a necessity. Rule 4 -- the advisory committee note to Rule 43(b) says that a defendant may be tried only if he -- if he leaves after the trial beings, and cites the Diaz case.

QUESTION: And you take the position that even if the defendant at the time of arraignment said look, I -- I understand my right to be present at trial but I don't want to be, I give up that right and you folks go ahead without me. That's no good.

MR. NYVOLD: That's not sufficient for two reasons, or for one reason, that he's not initially present. The judge at that point would have to take action to ensure that that defendant appeared at trial and waived that right after the trial began.

QUESTION: Well, of course, the practical effect, I suppose, if you are correct here, is that more people ought to be incarcerated pending trial if there's a risk they won't show up.

MR. NYVOLD: Exactly. That is one option available to the court. And now, since the Bail Reform Act, the -- at least the Federal courts can incarcerate defendants who pose a flight risk. And a defendant who makes a statement indicating that he or she will not abide by the conditions of her release and appear for trial could then be -- have her -- his or her bail revoked and be detained. So there are means to deal with this situation, and --

QUESTION: But is it a situation we want to bring about if we have any choice in the matter? I mean, doesn't it seem odd that -- that the rule would call for such a result?

MR. NYVOLD: That it would permit a defendant who didn't appear to put off the date of his trial?

QUESTION: Yes.

MR. NYVOLD: That is the result that the common law permitted, and it's obvious that Rule 43 adopts the common law rule in toto.

QUESTION: Well, well, I wonder if we should bring to the interpretation of a rule adopted by a rules committee and forwarded to this Court and ultimately put to Congress exactly the same sort of construction materials as we bring to a statute. It seems to me here you -- you -- you -- that it's perfectly permissible for us to inquire, if this wasn't the common law rule, why on earth did the rule change it, as it appears to have done. And perhaps we would determine that maybe it didn't change it.

MR. NYVOLD: Oh, certainly the rule did not change the common law rule. It adopted it entirely.

QUESTION: You said -- well, then, you and the Government disagree on that. Am I not right, from your briefs?

MR. NYVOLD: As far as I can tell, the Government says that Rule 43 doesn't address the situation of a defendant not initially present. It -- the rule obviously does, and it's the advisory committee notes that are helpful in determining what it was the drafters of the rule wanted the rule to cover.

QUESTION: But what was the situation at common law before there was -- or, say, in this country, before the rule was adopted?

MR. NYVOLD: A defendant could be tried in his absence only if he initially appeared at the trial. The common law did not contemplate the trial of a defendant who did not appear, as -- even though it was obvious that such a defendant might be putting off the date of his trial, might be frustrating justice, might be flaunting justice. It simply was not contemplated that that was done.

And, in fact, the Government has not cited one case prior to Rule 43 in which the common law dealt with a defendant who absconded prior to trial, was then tried, and that that -- and that result was affirmed on appeal. There are no cases, and the case cited in the Government's brief, Commonwealth v. Felton, a Pennsylvania case, says just that, there are no cases prior to Rule 43 which permit a trial in absentia of a defendant not initially present.

QUESTION: Mr. Nyvold, I -- am I correct that (b)(2), subsection (b)(2) of Rule 43 was later added? Am I right about that? That said -- the one that makes an exception for after being warned by the court that disruptive conduct will cause removal, he persists in conduct which is such as to justify exclusion from the courtroom.

MR. NYVOLD: That was added, yes, sir.

QUESTION: That was a later amendment.

MR. NYVOLD: In response to Illinois v. Allen, which allows a -- the disruptive defendant to be removed from the courtroom after being warned.

QUESTION: Well, how could we have decided Illinois v. Allen?

MR. NYVOLD: Illinois v. Allen was certainly within -- or the result in that case, that the defendant who departs or who is disruptive can be removed, that result was clearly within the contemplation of the rule, and here's why. The rule --

QUESTION: The old rule that didn't have that exception.

MR. NYVOLD: The old -- the old -- the old rule. And the old rule read that a defendant who voluntarily absents himself after the trial commences can be tried in -- in his absence. And, obviously, it doesn't take a great leap of logic or common sense to find that the disruptive --

QUESTION: To say that making a fuss at trial is being voluntarily absent. I don't know.

MR. NYVOLD: Well, the disruptive defendant can be equated to someone who is voluntarily absent.

QUESTION: Only if you want to. I don't know --

MR. NYVOLD: Well, as it's -- it's not difficult to, or it's certainly within the scope of the language to conclude that --

QUESTION: No, I think -- I think that -- I mean I have a problem with that as far as your case goes. It seems to me that if -- if you think that Illinois v. Allen was rightly decided, you -- you acknowledge that the rule is not exclusive and that there are some other reasons why you may allow the trial to proceed without the defendant. I find it very difficult to say that someone is voluntarily absent if he disrupts the trial, and is therefore, you know, required to leave.

MR. NYVOLD: Functionally, that's the equivalent of being voluntarily absent. If one makes the trial impossible to proceed, a decision has to be made. Either we're going to remove this defendant or we're going to continue with him, and the trial obviously can't continue in those circumstances.

QUESTION: This doesn't even -- even speak to the situation here, and I gather you're saying that it's just like the rule just doesn't speak to a disruptive defendant.

MR. NYVOLD: My point is that the rule, as it was previously written, permitted the result in Illinois v. Allen. Here, we don't have anything like that. We have -- we would have to basically engraft an exception onto Rule 43 that was not within the contemplation of the drafters.

The reason that Rule 43 wasn't -- or was intended to address the situation of the defendant not initially present is obvious from the notes appended to the first draft of Rule 43, and this was in 1943, in which the initial draft read that a defendant has the right to be present at arraignment. And the Government says, well, later that was changed to shall be present, and the reason it was changed to shall be present was just to avoid a defendant from exercising a right of -- his right of presence by not attending, by opting not to attend.

And it appears that the present version of the rule, the one that says the defendant shall be present, was proposed by Judge Sanborn of the Eighth Circuit, and this was in 1943. And his notes or his version of Rule 43 has appended to it his own comment, which is that, quote:

I think it would be inadvisable to conduct criminal trials in the absence of the defendant. That has never been the practice, and whether the defendant wants to attend the trial or not, I think he should be compelled to be present. If, during trial, he disappears, there is, of course, no reason why he should -- the trial should not proceed without him.

So this is the person who proposed, apparently, the draft that we have right now. And that person, Judge Sanborn, obviously didn't feel that the common law permitted the trial in absentia of a defendant who wasn't present.

And if you look at the first advisory committee note appended to the first draft of Rule 43, that -- and this is the draft that says the defendant simply has a right to be present, it doesn't say he shall be present. This is the very first advisory committee draft and it says:

The second sentence permits continuing with the trial in a felony case not punishable by death or in a misdemeanor case when the defendant, by his voluntary act, absents himself after the commencement of trial. Under this provision the defendant is required to be present at arraignment, at plea, and the trial must begin in his presence.

So the first published draft of Rule 43 had that appended to it. It was obvious --

QUESTION: Well, the -- the -- the comment went further than the actual rule did itself.

MR. NYVOLD: At that time, yes. But that's significant because it shows that even though the rule didn't make it explicit, at least at that time, that the defendant had to be present, the advisory committee note said that the defendant must -- or the trial must begin in the defendant's presence.

QUESTION: Well, that may reflect on the competence of the advisory committee.

MR. NYVOLD: Well, they -- they were citing the Diaz case, though, in connection with that. Immediately after that sentence --

QUESTION: And --

MR. NYVOLD: The --

QUESTION: Over themselves.

QUESTION: Over themselves. I guess the rule -- the rule now says shall, doesn't it?

MR. NYVOLD: It says shall. The Government says that the -- the right to be present versus shall be present is indicative only of an attempt to prevent a defendant from exercising his right of presence by not attending.

But it's -- the point I'm making here is that the person who -- Judge Sanborn who proposed the present draft or the present wording of the rule, when he did that, included that language, which was that it is inadvisable to conduct criminal trials in the absence of the defendant, and that has never been the practice.

So the judge who's proposing that language is saying we just don't try defendants in their absence, and it's obvious what the committee was -- its intent or its view of the law was at the time it proposed -- proposed this rule.

If one looks at what -- well, not only -- staying with the drafting history for a moment. The Government's brief cites at page 19, note 6, a proposed amendment to the draft or to rule 43, a 1973 proposed amendment. That amendment would have covered the situation we have here where a defendant does not appear for the beginning of his trial, and that amendment would have permitted the trial to proceed in that defendant's absence.

The significance of that is that the rule -- if the rule did not -- if the rule permitted that, it wouldn't have been necessary to add that language. And the fact that the committee rejected it shows that the committee didn't want the rule to permit the trial in absentia of a defendant who wasn't present.

QUESTION: Well, the committee was just -- perhaps, just paying some respect to Diaz.

MR. NYVOLD: Well, and well it should, because the rule incorporated the common law rule as stated in Da -- Diaz, and that is what's controlling here. That's since we don't, at common law, try defendants in their absence, at least if they're not present for the trial, we're not going to permit that under the Federal rules. That was the -- the whole point of incorporating Diaz.

QUESTION: But, the -- the -- Diaz didn't deal with a situation where the defendant was not present at the beginning of his trial, did it?

MR. NYVOLD: Factually, that's correct, and that is one of the points on which the circuit courts have distinguished Diaz. But the point about Diaz is that it lays down the common law rule. And even though the -- factually, the defendant in that case was initially present, that doesn't lessen or detract the force of that common law rule.

And that's what this -- or the advisory committee and this Court was adopting when it promulgated Rule 43. If one looks at the advisory committee note to Rule 43, the exact page of the Diaz opinion is the one cited, the page where the common law rule is discussed, page 455. So it's obvious that when the advisory committee was thinking about Diaz, it was thinking about that common law rule that doesn't admit a defendant to be tried unless he's initially present.

The common law and case law origins of Rule 40 -- I've been talking mainly about the advisory committee treatment of the rule, and that, obviously, deals with the common law and case law origins of Rule 43. But if one looks at some of the important State cases cited in Diaz, it's obvious that no one was tried in his absence if he didn't show up for trial.

The case of Commonwealth v. McCarthy specifically said it is irregular and improper to begin trial without the presence of the accused. In State v. Way, a Kansas case, 1907, trial cannot begin in his absence. In Feit v. State, an Ohio case from 1835, the court said the trial cannot begin in the defendant's absence, but if he leaves during the trial it may proceed.

So Diaz summarized -- gathered together and summarized all the State cases in arriving at what the common law and discerning what the common law said about trial in absentia.

QUESTION: Do you see any constitutional privilege here that couldn't be waived? I mean could the rule be changed to allow the court to do what it did here?

MR. NYVOLD: I'm a little ambivalent about that. I would say, first of all, that Diaz could be read broadly enough to equate the Sixth Amendment right of presence to the common law rule. But that seems to take Diaz a little bit too far, because Diaz did, in fact, deal with a defendant who was initially present.

QUESTION: Well, we certainly have said that a defendant can waive his right against self-incrimination, a right to jury trial, the right to have an attorney --

MR. NYVOLD: In --

QUESTION: -- you think this is a right that is in that same league?

MR. NYVOLD: Although I think, as I was saying, Diaz could be read broadly enough to say that the Sixth Amendment right cannot be waived, practically speaking I don't think that -- I'm not arguing that and I don't think the Sixth Amendment should be so read. I think that a defendant could waive his or her constitutional right of presence prior -- prior to trial by -- by conduct or express --

QUESTION: Now, a good many courts have -- have read the rule as not preventing their practice in accordance with what was done here. Isn't that right?

MR. NYVOLD: Well, they've -- they've done it not because one can waive a constitutional right. I mean, the right -- constitutional right of presence, I'm not arguing that. What I'm saying is that the common law aspect of Rule 43 -- and Rule 43 incorporates not only the constitutional right of presence, but the common law right of presence. That's why it's broader than the Constitution.

A defendant could waive the constitutional right of presence, but it would have to be a knowing, voluntary, and intelligent waiver. And our position would be that there was no waiver of the constitutional right of presence because nothing in the record shows that the petitioner was ever told that if he didn't appear, that the trial could proceed in his absence.

And I don't know, in this context at least, prior to trial, how one could have a knowing, voluntary, and intelligence waiver if one didn't know the consequence of absconding. We have in this case -- or in this country no common law tradition of trial in absentia, which is another reason why a defendant who leaves prior to trial could not be presumed to have waived the constitutional right of presence.

And I'd like -- as long as I'm talking about this, I'd like to distinguish the Taylor case. In Taylor v. United States, this Court said that it's obvious that the defendant who departs after the trial begins must be presumed to know that in -- by departing, he or she waives the right of presence and that the trial -- and must know that the trial will continue in his absence. That's not the situation as to a defendant prior to trial who's never been advised of the consequences and who is not in the midst of a trial.

In 19 -- I was mentioning earlier that in 1973 the common law -- or, I'm sorry, the advisory committee proposed an amendment to Rule 43 that would have addressed this situation. It would have permitted a defendant who did not appear for the -- for the beginning of his trial to be tried if there was a finding of a knowing and voluntary disappearance without justification.

In a note to that proposed amendment the advisory committee said that this subdivision is added to make clear that a defendant not present at the start of the trial, the requirement of the -- of the current rule, may be tried in absentia.

In other words, in 1973 the proposed amendment said or recognized that the current requirement is that the defendant has to be present and trial cannot proceed without him. The Government quotes that proposed -- or makes reference to that proposed amendment in its brief, but they don't make reference to that comment by the advisory committee which recognizes what the current rule requires.

The Government's arguments as to why the rule does not address the situation are incorrect. The Government argues that because Rule 43 does not prohibit trial in absentia, it must permit it. There's no -- but the Government cites no authority for this. Obviously, the rule -- the plain language of the rule doesn't permit that. The advisory or the drafting history of the rule is -- or contradicts that and, as in the case of Commonwealth v. Felton, there are no cases prior to Rule 43 that permit a trial in absentia of a defendant not initially present.

The structure of the rule also argues against the result -- or the Government's point. The Government says that Rule 43 doesn't address this, but it's odd that if, in drafting a rule, the only waiver provision contemplated has to do with the defendant who is initially present.

In other words, if the rule were going to be drafted to permit the result the Government wants, it would have been a simple matter to make the waiver provision include not only defendants initially present but also those who are not initially present. So the structure of the rule argues against the Government's -- the result the Government wants.

The Government argues that defendants will be able to manipulate the system if the rule is interpreted as we ask it to be interpreted. Well, the Government's concerns about defendants holding up trials and flaunting justice obviously had to have been known to the drafters of the rule, and the Government's argument now seeks to elevate that concern above the rule that was drafted in awareness of it.

There is at least one State that has specifically, by case law, prohibited trying a defendant not initially present and that's Pennsylvania. I'm not aware of any problem that Pennsylvania has had in trying its defendants and in making sure that its court system operates smoothly and efficiently.

There are means to discourage defendants who are not initially -- or who are on bail and contemplate absconding prior to trial. We don't have to go to the extreme of holding the trials in their absence. Defendants can be required, as a condition of their release, to appear at trial. If they don't, they know that their bail will be forfeited.

As I mentioned earlier, a defendant who's been given -- or who's been released prior to trial could be -- have his bail revoked or he could be detained initially. There just is no reason why we have to go to the extreme of trying defendants who are not initially present.

The implications of the Court's decision should be important in the result -- in reaching the result that we're asking for. First of all, if the Court finds that a defendant not initially present can be tried in spite of the clear language of the rule, it's going to be creating a wedge effect.

The Government will be seeking to try defendants at an earlier and earlier stage of the trial. The next stage, obviously, will be the defendant who hasn't been arraigned. Now, arraignment is a precondition of trial, or is a sine qua non of trial, but if the Government is able to succeed in this case in having the rule ignored, then why not ignore the part of the rule that says the defendant cannot be tried unless he's been arraigned?

And the requirement that the defendant be arraigned prior to trial is the same part of the rule requiring his presence at trial. So what the Court would be doing here is creating a precedent for interpreting the requirement of presence at arraignment to be superfluous, to not really mean what it says.

QUESTION: Or at verdict, or at sentencing.

MR. NYVOLD: Exactly. And in this case the court did -- the district court that tried the petitioner did not sentence him in his absence. It abided by that part of the rule. So to be consistent in interpreting the rule, it's necessary to give effect to all parts of it. So the part that says the defendant has to be present at arraignment should be interpreted consistently with the part of the rule that says the defendant has to be present at trial and at sentencing.

And they're all in the same -- all in Rule 43(a). The rule doesn't admit of distinctions or of differences in interpretation as to those clauses.

QUESTION: Well, there -- there was no inconvenience involved in deferring the sentencing since the sentence couldn't be executed until they caught him anyway. You may as well wait until you catch him to determine the sentence as well.

MR. NYVOLD: Well, there --

QUESTION: Whereas there was a lot of inconvenience in rescheduling the whole trial just because he took off after -- right? I mean --

MR. NYVOLD: Well, I have --

QUESTION: -- the witnesses were ready to go and he was expected to be there and he just never showed up for the beginning of the trial.

MR. NYVOLD: But it's that inconvenience and that's -- the problems that defendants create when they abscond, that is irrelevant under the rule. It was irrelevant to the common law. I mean it wasn't unimportant, but it -- it wasn't made paramount. The defendant's presence at the trial was made paramount. So your concern is --

QUESTION: I understand, but it -- all I'm saying is that there was some logic to the fact that the court in this case required him to be present for the sentencing, did not impose the sentence without his presence. There was some reason for making a distinction.

MR. NYVOLD: Well --

QUESTION: You say it's not a reason permitted by the rule. That may well be, but there was a logical reason for it anyway.

MR. NYVOLD: That very reason goes to, really, what's at the root of the problem here. It wasn't inconvenient to postpone the petitioner's sentencing, it was inconvenient to postpone his trial. But it's that inconvenience that is irrelevant under the common law, it's irrelevant under the rule.

QUESTION: Well, surely more than just inconvenience, if -- if the Government has a bunch of witnesses put together, it's a very frustrating thing.

MR. NYVOLD: It is, but that's why this Court needs to take a stand and let the district courts and the courts of appeal know that rules must be enforced as written. If the rule is --

QUESTION: So -- so these frustrations can continue.

MR. NYVOLD: No. If the rule is inconvenient, if this Court doesn't want to tolerate the results it that would obtain here, it can change the rule. It's -- I'm not arguing that this rule should remain forever. It's not that difficult a process to change a rule. This Court has the authority to initiate changes, and I, by no means, am arguing that this rule must be retained.

But it -- as long as it's in effect, as long as its meaning is clear, it must be given effect. And giving the rule effect will have a salutary effect on the enforcement of other rules. You won't have district courts departing from other rules that produce inconvenient results.

I reserve the rest of my time.

QUESTION: Very well, Mr. Nyvold. Mr. Seamon, we'll hear from you.

ORAL ARGUMENT OF RICHARD H. SEAMON ON BEHALF OF THE RESPONDENT

MR. SEAMON: Thank you, Mr. Chief Justice, and may it please the Court:

There are three possible ways in which the drafters of Rule 43 could have responded to the problem of a criminal defendant who absconded prior to trial. They could have expressly authorized trial in absentia under those circumstances, could have expressly prohibited it, or it could have left the matter for courts to decide.

We think the drafters took the third route. They left the matters for the courts because the issue had not been resolved at the time the rule was adopted. Since Rule 43 was adopted, every court of appeals that has considered the issue has concluded that a defendant who deliberately fails to show up for his trial can be tried in his absence. We think --

QUESTION: Of course, that doesn't always prevent us from ruling the other way.

MR. SEAMON: That's correct. I would suggest, however, that the unanimity of the lower courts in this respect casts serious doubt on the contention that Rule 43 has a plain meaning with respect to the question we have here.

QUESTION: Well, how do you parse down a rule that says shall be present at every stage of the trial except as hereafter provided?

MR. SEAMON: We think that -- you're referring to subsection (a) of Rule 43, and we think that Rule 43 means that in general the defendant has both a right and a duty to attend all of the criminal proceedings against him.

QUESTION: But it says shall be present.

MR. SEAMON: That's correct.

QUESTION: It doesn't say anything about his right. It says, that he shall be present.

MR. SEAMON: It requires him to be present. And in this case petitioner breached that requirement.

QUESTION: Well, it requires. Isn't it addressed to the court too, he shall be present?

MR. SEAMON: It is addressed to the court as well. The court has a responsibility to bring the --

QUESTION: All right, go ahead.

MR. SEAMON: -- defendant before the court if it is possible to do so. In this case there was no ability --

QUESTION: It doesn't say that.

MR. SEAMON: -- to do that.

QUESTION: It doesn't say that, if possible to do so.

MR. SEAMON: That's right. It requires the defendant's presence. But what 43(a) does not do is address what options are open to a -- to the court when the defendant skips -- skips bond the night before trial as petitioner did in this case.

QUESTION: Well, it says shall be present except as is provided elsewhere in the rule. And the exception certainly doesn't cover his absence at the beginning of the trial.

MR. SEAMON: That's right. The exceptions in the rule address situations in which the -- a criminal defendant does not have a duty to appear before trial, and it also addresses a couple of situations in which a defendant gives up the right to attend. But what Rule 43(a) doesn't do is address what options are open to the court when the criminal defendant simply cannot be brought before the court.

QUESTION: Well, I -- arguably, it -- it -- it deals with it expressly. You don't go forward with the trial.

MR. SEAMON: The --

QUESTION: It says there are no options.

MR. SEAMON: That proviso --

QUESTION: There are no options, that's what it says, shall be required.

MR. SEAMON: Well, that's -- that's the part of the rule that has to be read in by negative implication, that the trial should not go forward. But nothing -- and no wording of that sort is in Rule 43(a).

QUESTION: It sure is. The defendant shall be present at every stage of the trial, and then it has exceptions later, and you admitted it doesn't come with any -- any of the exceptions.

MR. SEAMON: What it doesn't say is or else the trial may not go forward.

QUESTION: No, but it says -- but if he's not present, obviously it can't go forward if he's required to be present at the commencement of the trial.

MR. SEAMON: Well, we --

QUESTION: But it also doesn't say he can't shoot the judge.

(Laughter.)

MR. SEAMON: That's right. And the shall be present language does a couple of things. It -- it certainly imposes a duty on the court to ensure his presence, and it certainly also imposes an obligation on the defendant to show up. But what it doesn't do, in our position, is address what happens when he doesn't.

QUESTION: What effect do you give to the words except as otherwise provided? I take it your argument is that Rule 43(b) simply gives examples of instances where the rule would be inapplicable.

MR. SEAMON: It's -- well, that's right. 43(b) specifies two examples in which a defendant gives up the right to be present.

QUESTION: But you could make that argument if the phrase, except as otherwise provided by this rule is not present. So, then, I take it you give no effect at all to that language?

MR. SEAMON: We do give effect to that language. What we say is that subsection (a) of Rule 43 sets up the general requirement of the defendant's presence. There are certain circumstances, namely specified in subsections (b) and (c), in which the defendant's presence is not required or the defendant, having the right, loses that right through misconduct.

But besides setting forth that general requirement of presence, Rule 43(a), in our view, does not specify that the trial should not go forward if the defendant isn't present.

QUESTION: My point is I take it you could make precisely the same argument if the words except as otherwise provided were absent from subsection (a).

MR. SEAMON: If that except as phrase were missing from 43(a), there could be questions concerning conflicts between subsection (a) and subsection (c). For example, under -- under subsection (c) it says that the defendant's presence is not required at a conference or argument under a question of law. If the except as otherwise provided clause were not in 43(a), a question could arise whether, in fact, the defendant was required to be present at such conferences if they took place during the trial.

43(a) lays down a blanket rule of presence, but it also recognizes that there are certain circumstances in which the defendant does not have an obligation to be present during the trial, and some of those examples are set forth in subsection (c). And there are also cases in which the defendant loses the right to be present and they are set forth in subsection (b).

Subsection (a) sets forth a general requirement --

QUESTION: But what I don't understand, Mr. Seamon, is this. Central to your argument as you made it is that -- is that (a) does not address, does not address what happens if the defendant is not present. It does not say anything about whether the trial shall proceed, right?

MR. SEAMON: That's correct.

QUESTION: If that's so, then why is (b) even necessary? Why do you have to make an exception? I mean if (a) doesn't address it, why do you then go on to say in (b), however, the trial may proceed if the defendant is voluntarily absent. You wouldn't go ahead with (b). (b) would not have existed if (a) didn't address that situation.

MR. SEAMON: What Rule 43(b) does is it addresses two specific factual situations in -- in -- and then specifies what the court's options are in those situations.

QUESTION: Which wouldn't have to be addressed if the -- if the prohibition of (a) did not apply to them.

MR. SEAMON: It wouldn't have to be addressed, but the reason it was when Rule 43 was adopted was because this Court had addressed those situations. 43(b)(1) had been addressed in Diaz v. United States, and then subsequently the situation described in Rule 43(b)(2) was addressed in Illinois v. Allen.

So the -- the -- but the rule that was --

QUESTION: -- was addressed in Illinois against Allen?

MR. SEAMON: That situation --

QUESTION: That was a State case.

MR. SEAMON: That's correct.

QUESTION: And the only thing that was at issue was the -- was the Constitution.

MR. SEAMON: That's right. Illinois v. Allen was a State case and it was a constitutional question of whether the --

QUESTION: Well, the Court didn't address it -- address the rule then. They just had it -- they just recited it in a footnote.

MR. SEAMON: That's right. Illinois was a State case and it wasn't governed by the rules. And, in fact, the rule was amended to apply the Illinois v. Allen exception to Federal courts.

And, actually, that addition to the rule, which occurred in 1974, is significant because the drafters described the addition permitting the exclusion of disruptive defendants as designed to, quote, make clear that Federal courts, as well as State courts, had the power to exclude disruptive defendants from the courtroom.

We think it's significant that they described the amendment as clarifying a preexisting power, rather than creating a new one, because prior to the 1974 amendment the rule didn't expressly authorize Federal courts to exclude disruptive defendants. Nonetheless, the drafters, in adding the '74 amendment, plainly did not see Rule 43's prior silence on that question as creating a prohibition.

QUESTION: Mr. Seamon, can a defendant be arraigned in his absence?

MR. SEAMON: In -- in the -- the defendant's presence is required at arraignment under Rule 43(a).

QUESTION: Well, but how is that different from the requirement for trial? I mean, it's the same provision, the defendant shall be present at arraignment and at every stage of the trial except as otherwise provided.

MR. SEAMON: That's correct. And we would say that there are circumstances in which a defendant can waive the right to be present at arraignment.

QUESTION: At arraignment as well as trial.

MR. SEAMON: That's correct.

QUESTION: Well you go farther than that, if I understand it. You say the rule simply doesn't address the problem of what happens if he's not present.

MR. SEAMON: That's correct as well.

QUESTION: So that would mean that, apart from the Constitution and the common law, the judge could just do anything he wanted. He'd say, well, he's not here but I think I'll take the guilty plea anyway from his sister, or something like that, or not guilty plea.

(Laughter.)

QUESTION: What would prevent the judge from doing that?

MR. SEAMON: Now, what would prevent the judge from doing that are the principles enunciated in this Court's decisions concerning waiver of the right to be present, and as well as --

QUESTION: Yeah, but what if he does -- there's nothing here that says he must waive, so he just doesn't show up without waiving. The rule doesn't address the situation, in your view. It doesn't require that the right be waived. Maybe the Constitution does and common law does, but the rule, under your reading, doesn't. It just doesn't tell the judge what to do. He can take the plea from his sister.

QUESTION: And so if his lawyer shows up at arraignment and he gives in a letter to the judge and there's no question that he wrote it and that he -- he goes and he says I know that if I were here at arraignment, here's what you would tell me, and all that, and I don't want to be there. And you would say that would be a decent waiver, yes?

MR. SEAMON: It would be a decent waiver, but the question would still remain whether the trial court should accept that waiver and say we'll go forward in the defendant's absence.

QUESTION: Well, what -- what's your answer? The rule just doesn't speak to it.

MR. SEAMON: That's right. It does require the defendant to be present. Rule 43(a) does lay a --

QUESTION: But it doesn't say -- it doesn't say what happens if he isn't present.

MR. SEAMON: That's correct.

QUESTION: You read it as kind of addressed to the bailiff.

MR. SEAMON: We read it as, under the facts of this case, it was addressed to petitioner and -- and he violated his duty to show up. It is addressed, as well, to whoever has custody of the defendant, and it's certainly addressed to the court as well. But in this case the -- the violation of the right -- of the duty to be present was the petitioner's and not the court's.

QUESTION: Do you think that without the rule, the judge could -- was -- is without power to require the defendant to be present at all stages of the trial, subject to the penalty of contempt?

MR. SEAMON: No. There are -- there are -- certainly the conditions under which detention and appearance bond -- detention hearings are held and appearance bonds are executed.

QUESTION: And in order to appear subject to contempt.

MR. SEAMON: That's right. And there are all --

QUESTION: So then the rule doesn't really serve a very important purpose at all insofar as it's directed to the defendant, does it?

MR. SEAMON: It serves an important purpose. It restates what rule -- what the law was at the time the rule was adopted, which is that, in general, the defendant shall be present throughout the proceedings against him.

And it's very clear, though, that at the time Rule 43 was adopted the right of presence could be waived; this Court had established that in Diaz. It was not clear whether the right could be waived by the defendant's absconding prior to trial, and our position is that the drafters simply left that for courts to decide. It hadn't been resolved at the time the rule was adopted. It was an open question, certainly not an insignificant question, but nonetheless one that had not been dealt with at that time, and has yet to be.

QUESTION: Well, there's language in the Diaz opinion, albeit dicta, that suggests that our Court was of the view that the common law thought that a defendant could not waive his presence at the beginning of trial.

MR. SEAMON: It's -- it is correct that Diaz's description of the prevailing rule at that time suggests that. And for that matter, Diaz also suggested that in noncapital cases -- it was only in noncapital cases that a defendant's absconding during trial could permit the trial to go forward.

But the -- the law has been evolving on that point, and to come to back to the -- the question of -- of a capital -- a defendant charged with a capital offense, in 1974 the rule was amended to drop the wording regarding capital offenses so that courts would have the opportunity to address the issue of whether a defendant charged with a capital offense can waive the right to be present at his trial.

My point is that the drafters have generally not anticipated issues that have not been resolved by the courts. And one of those issues is the status of a defendant charged with a capital offense, and another of those issues is the question of a defendant who absconds prior to trial.

QUESTION: Was there a proposed amendment of Rule 43 at one time to deal with the absence at the start of trial?

MR. SEAMON: Yes, there was. In 1973 the advisory committee proposed an amendment that -- that would have permitted that.

QUESTION: And what happened to that?

MR. SEAMON: It was -- it was never passed. And the reasons why --

QUESTION: By whom?

MR. SEAMON: -- are unclear.

QUESTION: By whom?

MR. SEAMON: It was never adopted by the advisory committee on the rules of criminal procedure, nor presented to this Court. And although we've diligently researched the history of that, it simply is unclear what -- why the advisory committee decided not to adopt it. We tend to think, in light of the rest of the history of the rule, that this was yet another situation in which the drafters did not decide to decide an issue that had not yet been passed upon by the courts.

Around the time that this proposal I was just speaking of came up, this Court had granted cert in Tacon v. Arizona to address the question of whether a defendant could waive the right to be present -- as a constitutional matter, could waive the right to be present at trial at all. But cert was dismissed as improvidently granted, and so the issue was -- was not resolved, although I would suggest that the drafters anticipated that this Court's resolution of that issue may have obviated the need for -- for the amendment that you're speaking of.

The -- I'd like to return to the lower courts, because ever since Rule 43 was adopted the lower courts have unanimously held that waiver is appropriate in these situations if the public interest in proceeding with the trial outweighs the defendant's interest in being present.

Those decisions are significant in two respects. First at all -- first of all, they cast serious doubt on petitioner's contention that the plain language of Rule 43 supports his reading. Now, if the language were so plain, so many Federal courts of appeals would not have decided the question against him.

And secondly, all of the court of appeals decisions have been grounded on common reasoning, which simply is -- is that just as a defendant may waive his right to be present at trial by absconding once the trial begins, he may also waive the right by -- by absconding before the trial begins. That approach fully protects the defendant's right to be present by giving him an opportunity to show up, but at the same time it prevents the sort of calculated manipulation of the judicial system that's involved in this case.

The lower courts take a two-part inquiry. The first is directed to whether the defendant's absence is, in fact, knowing and voluntary. Once that's determined, it does not mean that the -- that automatically trial in absentia goes forward. Instead, the courts have gone on to determine whether the public interest in proceeding outweighs the defendant's interest in being present.

In fact, the decisions in this case below illustrate the care with which the lower courts have approached this issue. The trial court judge was faced with a very difficult situation on the morning of October 12, 1988 when this trial was scheduled to go forward. Petitioner's three codefendants were present, as were their counsel, the Government had assembled dozens -- over 80 witnesses to testify and hundreds of proposed exhibits. In short, everything was waiting to go forward, including the selection of potential jurors, except the petitioner wasn't there.

Nonetheless, the trial went --

QUESTION: Well, yeah, but you would be -- you would be making the same argument if there was just a single witness.

MR. SEAMON: But our argument would have less force in that situation because postponing the trial --

QUESTION: But you're making the argument and you think you should win it.

MR. SEAMON: Certainly, sir.

QUESTION: And like, apparently, the Government has won in every case where -- in the case -- when the issue has come up.

MR. SEAMON: We've -- we've been very successful with the argument.

QUESTION: And I doubt very much if there were 100 witnesses in all those cases.

MR. SEAMON: That's right. And my only point is that this -- that if -- if waiver of the right to be present and a continuation of the trial in a defendant's absence was ever proper, this is a case in which it was. The case was expected -- the trial was expected and, in fact, did last about 4 weeks. There were hundreds of exhibits and dozens of witnesses that had come from all over the country, and several had come from Canada.

Nonetheless, the trial court put everything on hold and waited 5 days, in the meantime making substantial inquiries into finding out where petitioner was, and there was no indication that he was ever going to show up. In fact, apparently the marshals had been told that he was packing the trunk of his car the night before trial begin and was never seen from again.

QUESTION: Of course, in at least one of those cases from the other circuits, isn't it a fact that the -- although the defendant was not there at the very beginning of the trial, he was there for most of the trial?

MR. SEAMON: Yes, that's right.

QUESTION: That makes it -- it's a little different situation, I suppose.

MR. SEAMON: It -- it certainly is different.

QUESTION: Yeah.

MR. SEAMON: Obviously -- and, certainly, the Government prefers to try defendants in their -- in their presence, and it -- it imposes a great burden on everyone, no matter what a court ultimately decides to do, when a defendant is absent. Again, as in this case, the marshals had to be dispatched, a bond forfeiture hearing had to be undertaken, inquiries were made of petitioner's family and his bondsman. And then, still, the question had to be decided what to do.

QUESTION: Well, has the -- the Government always has a -- or the Justice Department always has a representative on the advisory committee, doesn't it?

MR. SEAMON: I believe so.

QUESTION: And I suppose if these cases kept coming up and they're -- how many courts of appeals have held in your favor?

MR. SEAMON: Eight circuits.

QUESTION: Eight circuits. Well, so it's sort of a repetitive sort of a situation, and it looks to me like you would have prevailed upon the advisory committee to change the rule.

MR. SEAMON: Well, we -- we didn't think the rule needs fixing, and neither have any of the courts of appeal. Those courts have concluded, as we argue, that --

QUESTION: Well, it may not have needed fixing except that all the courts of appeals haven't ruled on it yet, but I -- I -- I would almost bet that sooner or later they would have to.

MR. SEAMON: Well, that's right. And, actually, it -- that is significant, because it brings up the question that petitioner's suggested of the specter of lots of defendants being -- or defendants being deprived --

QUESTION: Mr. Seamon, have they ever found Mr. Crosby?

MR. SEAMON: They did find Mr. Crosby. He was -- he was arrested approximately 8 month after -- 8 months after his trial was scheduled.

QUESTION: Say it over again, I can't hear.

MR. SEAMON: He was arrested about 8 months after his trial was scheduled to begin.

QUESTION: I'm sorry. Now do it a third time, will you?

MR. SEAMON: Yes.

QUESTION: He was arrested where?

MR. SEAMON: He was arrested in Florida about 8 months after the trial started.

QUESTION: So he is in custody now.

MR. SEAMON: He is in custody now, and he was sentenced upon his return.

QUESTION: If you lose this case, apart from this case, to what extent is the Government -- Government discomforted?

MR. SEAMON: Well, significantly. I mean, obviously, the Government would go forward and ask for an explicit amendment to the rule to address this situation. But we -- we don't think it's necessary, because we think that the courts of appeal have correctly decided that trial in absentia, under these circumstances, is correct.

It would impose -- in the meantime, it would impose a significant burden because the position for which petitioner is contending actually gives defendants who are contemplating flight an incentive to skip before the trial ever gets started. And --

QUESTION: Well, maybe defendants would abscond earlier, hum?

MR. SEAMON: Some do.

QUESTION: Or bail would be higher or something.

MR. SEAMON: Some do and the -- the enhanced risk that defendants would flee before their trial would tend to -- to have the Government argue in favor of pretrial detention in more cases, and may well dispose courts to grant those -- those requests.

QUESTION: And yet here you've sailed along on the face of the language in the rule without any concern, I guess because the courts of appeals have being going your way.

MR. SEAMON: The courts of appeal have consistently gone our way since the rule was adopted, and -- and --

QUESTION: It might even be easier for you to argue that -- that a pretrial conference is part of the trial and he was present at the pretrial conference.

MR. SEAMON: We -- we don't think that that's a tenable argument. We think that -- that the trial begins with the empaneling of the -- of the jury, as this Court has held and continues through --

QUESTION: Plain meaning, I guess, right. Pretrial means pretrial, yeah.

(Laughter.)

MR. SEAMON: That much is clear on the face of Rule 43. I would concede that.

QUESTION: Mr. Seamon, do you happen to know -- I don't know the answer to this -- what the practice in most State courts is?

MR. SEAMON: Most State courts have rules very similar to Rule 43.

QUESTION: What do they do when the -- in facts like this, do you know?

MR. SEAMON: In facts like this, the majority of them -- although not all of them -- do the same thing that the Eighth Circuit did here, which is to first make an inquiry to determine if the defendant really has absconded and is voluntarily away and the, as a second point, looking to whether, in fact, the trial can be postponed or rescheduled or it needs to go forward because of the witnesses or because of codefendants, and that sort of thing.

QUESTION: Thank you.

MR. SEAMON: If there are no other questions.

QUESTION: Thank you, Mr. Seamon.

MR. SEAMON: Thank you.

QUESTION: Mr. Nyvold, you have 5 minutes remaining.

REBUTTAL ARGUMENT OF MARK D. NYVOLD ON BEHALF OF THE PETITIONER

MR. NYVOLD: Thank you. The Government is arguing now that Rule 43 doesn't address this situation. Although this isn't -- or terribly significant, it is important that the interpretation the Government is urging now is not the one the Government took at trial.

At page 15 of the joint appendix, the prosecutor said when this subject came up, the possibility of trying Mr. Crosby in absentia -- the prosecutor said: The rule appears to require that the defendant be there at the beginning of the trial and that you proceed if he takes off, and that is usually the way it happens. The Government went on to urge or to cite the many circuits that have said this is okay to do, but it's significant that the reading that they are giving the rule now is not the reading that they gave the rule when the question first arose.

QUESTION: Well, I don't understand. What -- what -- what -- how did they -- what reason did they give there?

MR. NYVOLD: Well, the prosecutor -- when the question arose, let's think about trying Mr. Crosby in absentia, the prosecutor got out the rule and her comment was, quote: The rule appears to require that the defendant be there at the beginning of the trial and that you proceed if he takes off, and that is usually the way it happens. In other words, the prosecutor --

QUESTION: Well, but -- but, in fairness, the Government goes on to say: But the cases indicate you can proceed against him in his absence even if he's not there at the outset of the trial.

MR. NYVOLD: Yes, Justice Kennedy, that was the point I was making, that the Government went on to urge the cases, or to cite the cases in the circuits that permit the --

QUESTION: Well, I assume the Government was saying that this is the way the rule has been interpreted by the courts.

MR. NYVOLD: Well, the plain reading, or the reading the prosecutor was giving it was not the one the Government is giving it now. That's the only point I'm making. I'm not saying that's dispositive of the case, but they are being -- the Government is inconsistent in its argument.

QUESTION: Well, he was -- but he did -- he did point out that apparently the courts of appeals knew more about the rule than he did.

MR. NYVOLD: No, the prosecutor then cited the cases or went on to urge that the cases indicate you can proceed -- proceed against him.

The Government, or the solicitor, made the statement that a defendant can be proceeded against even if he or she is not at the arraignment. I don't know of any authority for that. It's -- arraignment, at least under Crane v. United States, is an absolute to -- prerequisite to proceeding against a defendant. And in Crane, the defendant's conviction was reversed because, although he was present at every other proceeding, the defendant had never been arraigned. So I don't know any authority for that contention.

The circuit court opinions make the -- make some rather facile distinctions in getting around Rule 43. They say that since the defendant can waive his presence at any early stage of the trial when some fairly -- or less significant events like jury selection are going on, and he -- why can't he waive it at the beginning of the trial.

That clouds the reasoning behind the common law rule, which was to draw a bright line at the beginning of trial. The common law has recognized, as does Rule 43, that a defendant can waive the right of presence after the trial begins, but to reason that -- within those parameters, that because he can waive it during different stages, that he can waive it prior to the trial is illogical. It's taking the common law rule and basically pulling the rug out from under it. That's not what the common law did. It didn't permit the trial in absentia prior -- if the defendant wasn't there.

The Government took some pains to point out that Mr. Crosby's presence appears to have been deliberate and calculated to postpone the trial. This, again, was a circumstance well-known to the common law and well-known to the drafters of the rule, and yet they didn't write the rule to distinguish between defendants who are absent through no fault of their own and those who deliberately abscond. That's just irrelevant under the rule.

The Government makes the point that a defendant, if the rule is interpreted as we urge, will have an incentive to leave at an early stage of the trial. Well, a defendant has an incentive to leave prior to arraignment since it's obvious the defendant can't be proceeded against if he hasn't been arraigned.

So if there's an incentive to leave at an early stage, it occurs prior to the trial. That would be the smartest point at which to abscond, is prior to arraignment, since no one disputes that a defendant cannot be tried if he hasn't been arraigned.

The point that -- the question that Justice --

QUESTION: The arraignment, though -- if the defendant absconds before he's arraigned, the State has not marshaled the witnesses and that sort of thing for the arraignment the way they would have for the trial, so the -- the amount of inconvenience is considerably different.

MR. NYVOLD: That's true. But the common law recognized that it was only at the point at which the trial began that that inconvenience factor would weigh -- would predominate and favor -- and permit the trial of a defendant who's not initially present.

Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Nyvold. The case is submitted.

(Whereupon, at 2:31 p.m., the case in the above-entitled matter was submitted.)