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
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No. 91-6194
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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 without the defendant is marked as exclusive not by the -expression of one- circumstance, but rather by the express use of a limiting phrase. In that respect the language and structure of the Rule could not be more clear.
The Government, however, urges us to look for guidance at the ex
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