(dissenting):
The real question in this case is not whether the defendant knew that the trial could proceed in his absence but whether he knew that he had a right to be present at his trial and waived it. The majority seems to recognize this when it speaks of a remand to enable the defendant “to develop factual support for his contention that his absence was not truly voluntary since it was not a waiver of a ‘known right.’ ” (Majority opinion at 1130; emphasis added.) The right that was involved was the right to be present. Thus it follows that if the defendant knew or should have known that he had a right to be present, his voluntary absence (and there is no doubt that his absence was voluntary) was a waiver of that “known right.”
While Rule 43 of the Federal Rules of Criminal Procedure, in implementing the mandate of the sixth amendment, requires a defendant to be “present * * * at every stage of the trial,” it permits, “[i]n prosecutions for offenses not punishable by death, the defendant’s voluntary absence after trial has been commenced in his presence * * Fed.R.Crim.P. 43. (Emphasis added.) We have construed this rule as providing “that if a defendant at liberty remains away during his trial the court may proceed provided it is clearly established that his absence is voluntary. He must be aware of the processes taking place, of his right and of his obligation to be present, and he must have no sound reason for remaining away.” Cureton v. United States, 130 U.S.App.D.C. 22, 27, 396 F.2d 671, 676 (1968). Moreover, the oft-quoted case of Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357 (1938), speaks of a “proper” and “intelligent” waiver as being one that “must depend, in each case, upon the particular facts and circumstances surrounding that case, including background, experience, and conduct of the accused.” 304 U.S. at 464, 58 S.Ct. at 1023. Applying these principles to the present case we find that the appellant was the possessor of the “worst” criminal record that the trial judge had seen in his twenty months on the criminal trial bench. (Sent. Tr. at 7-8.) This record shows a history of over 20 convictions and 40 arrests within the span of 28 years. (Sent. Tr. at 7.) His “background” and “experience” were, at the very least, broad. Regarding his conduct, we note that after beginning appellant’s non-capital trial in his presence (McPherson had been in jail up to and including his first day of trial), the trial judge permitted McPherson’s release for the purpose of locating witnesses. Upon the urging of the Government, however, the judge cautioned the appellant that the trial would resume on Monday morning at 9:45 :
THE COURT: [T]here will be no excuses whatsoever accepted by this Court for your failure to appear. Do you understand?
THE DEFENDANT: I will be here. I will be here.
THE COURT: Not sickness, anything — there is only one thing that can happen to you in the interim, and I am not wishing that upon you. But aside from that, you will be here.
THE DEFENDANT: 1 will. (Emphasis supplied, Tr. 41.)
The defendant wasn’t there on Monday when a bench warrant issued, nor on Tuesday when the trial resumed over his counsel’s objection. In his absence, he was convicted.
At the time of sentence, McPherson attempted to explain his absence. He said *1132that he fell asleep Sunday night and did not awaken until Monday evening at 4:30 (Sent. Tr. at 5). He related that upon arising he did not attempt to contact anyone nor did he attempt to contact the court or his counsel during the ensuing days of his absence when he was “back in the street” looking for witnesses (Sent. Tr. at 6). Upon this testimony,1 the court found his absence voluntary. I do likewise. Cureton, Rule 43 and the Sixth Amendment have been followed.
I would affirm.
. Between the time of conviction and imposition of sentence McPherson was arrested and again brought to jail. While in jail awaiting sentence he wrote a letter to the trial judge apologising for his poor judgment and explaining, in great detail, the facts surrounding his absence. My reading of that letter convinces me that this appellant had full knowledge of the consequences of his acts and had no intention of returning to the courthouse unless forced. He knew his rights and knew his chances — he chose to take the latter.