Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/ussct/crosby.asc

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NOTE: Where it is feasible, a syllabus (headnote) will be
released, as is being done in connection with this case, at the
time the opinion is issued.  The syllabus constitutes no part of
the opinion of the Court but has been prepared by the Reporter of
Decisions for the convenience of the reader.  See United States
v. Detroit Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

CROSBY v. UNITED STATES
certiorari to the united states court of appeals for
the eighth circuit
No. 91-6194.  Argued November 9, 1992-Decided January 13, 1993

Although petitioner Crosby attended various preliminary
proceedings, he failed to appear at the beginning of his criminal
trial.  The Federal District Court permitted the proceedings to
go forward in his absence, and he was convicted and subsequently
arrested and sentenced.  In affirming his convictions, the Court
of Appeals rejected his argument that his trial was prohibited by
Federal Rule of Criminal Procedure 43, which provides that a
defendant must be present at every stage of trial "except as
otherwise provided" by the Rule and which lists situations in
which a right to be present may be waived, including when a
defendant, initially present, "is voluntarily absent after the
trial has commenced."

Held:Rule 43 prohibits the trial in absentia of a defendant who
is not present at the beginning of trial.  The Rule's express use
of the limiting phrase "except as otherwise provided" clearly
indicates that the list of situations in which the trial may
proceed without the defendant is exclusive.  Moreover, the Rule
is a restatement of the law that existed at the time it was
adopted in 1944.  Its distinction between flight before and
during trial also is rational, as it marks a point at which the
costs of delaying a trial are likely to increase; helps to assure
that any waiver is knowing and voluntary; and deprives the
defendant of the option of terminating the trial if it seems that
the verdict will go against him.  Because Rule 43 is dispositive,
Crosby's claim that the Constitution also prohibited his trial in
absentia is not reached.  Pp.3-7. 951 F.2d 357, reversed and
remanded.

Blackmun, J., delivered the opinion for a unanimous Court.

SUPREME COURT OF THE UNITED STATES
--------
No. 91-6194
--------
MICHAEL CROSBY, PETITIONER v.
UNITED STATES
on writ of certiorari to the united states court
of appeals for the eighth circuit

[January 13, 1993]

Justice Blackmun delivered the opinion of the Court.  This case
requires us to decide whether Federal Rule of Criminal Procedure
43 permits the trial in absentia of a defendant who absconds
prior to trial and is absent at its beginning.  We hold that it
does not.

I

    In April 1988, a federal grand jury in the District of
Minnesota indicted petitioner Michael Crosby and others on a
number of counts of mail fraud.  The indictment alleged that
Crosby and his codefendants had devised a fraudulent scheme to
sell military-veteran commemorative medallions supposedly to fund
construction of a theme park honoring veterans.  Crosby appeared
before a federal magistrate on June 15, 1988, and, upon his plea
of not guilty, was conditionally released from detention after
agreeing to post a $100,000 bond and remain in the State.
Subsequently, he attended pretrial conferences and hearings with
his attorney and was advised that the trial was scheduled to
begin on October 12.

    Crosby did not appear on October 12, however, nor
could he be found.  United States deputy marshals reported that
his house looked as though it had been -cleaned out,- and a
neighbor reported that petitioner's car had been backed halfway
into his garage the previous evening, as if he were packing its
trunk.  As the day wore on, the court remarked several times that
the pool of 54 potential jurors was being kept waiting, and that
the delay in the proceedings would interfere with the court's
calendar.  The prosecutor noted that Crosby's attorney and his
three codefendants were present, and commented on the difficulty
she would have in rescheduling the case, should Crosby later
appear, because some of her many witnesses were elderly and had
health problems.

    When the District Court raised the subject of conducting
the trial in Crosby's absence, Crosby's attorney objected.
Nevertheless, after several days of delay and a fruitless search
for Crosby, the court, upon a formal request from the Government,
decided that trial would commence on October 17.  The court
ordered Crosby's $100,000 bond forfeited and stated for the
record its findings that Crosby had been given adequate notice of
the trial date, that his absence was knowing and deliberate, and
that requiring the Government to try Crosby separately from his
codefendants would present extreme difficulty for the Government,
witnesses, counsel, and the court.  It further concluded that
Crosby voluntarily had waived his constitutional right to be
present during the trial, and that the public interest in
proceeding with the trial in his absence outweighed his interest
in being present during the proceedings.  Trial began on October
17, with petitioner's counsel actively participating, and
continued in Crosby's absence until November 18, when the jury
returned verdicts of guilty on charges against Crosby and two of
his codefendants.  See United States v. Cheatham, 899 F. 2d 747
(CA8 1990).  One codefendant was acquitted.

/* It is not within the record of this case, but the
co-defendants might well complain of being tried with the jury
knowing that a co-defendant was a fugitive. */

    Approximately six months later, Crosby was arrested in
Florida and brought back to Minnesota, where he was sentenced to
20 years in prison followed by 5 years on probation with
specified conditions.  Crosby's convictions were upheld by the
Court of Appeals, which rejected his argument that Federal Rule
of Criminal Procedure 43 forbids the trial in absentia of a
defendant who is not present at the beginning of trial.  917 F.
2d 362, 364-366 (CA8 1990).  Noting that the other Courts of
Appeals that considered the question had found trial in absentia
permissible, the court concluded that the District Court had
acted within its discretion in electing to proceed.  Id., at
365-366.  We granted certiorari.  ___ U. S. ___ (1992).

II
    Rule 43 provides in relevant part:


      (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.

      (b) Continued Presence Not Required.  The further
      progress of the trial to and including the return of
      the verdict shall not be prevented and the defendant
      shall be considered to have waived the right to be
      present whenever a defendant, initially present,
      (1) is voluntarily absent after the trial has
      commenced . . . .-


The Government concedes that the Rule does not specifically
authorize the trial in absentia of a defendant who was not
present at the beginning of his trial.  The Government argues,
nonetheless, that "Rule 43 does not purport to contain a
comprehensive listing of the circumstances under which the right
to be present may be waived." Brief for United States 16.
Accordingly, the Government contends, Crosby's position rests not
on the express provisions of Rule 43, but solely on the maxim
expressio unius est exclusio alterius.  Ibid.  We disagree.  It
is not necessary to invoke that maxim in order to conclude that
Rule 43 does not allow full trials in absentia.  The Rule
declares explicitly: "The defendant shall be present . . . at
every stage of the trial . . . except as otherwise provided by
this rule" (emphasis added).  The list of situations in which the
trial may proceed