dissenting:
I respectfully dissent from the majority opinion and the result it reaches. It rewards a contumacious defendant for his criminal conduct by setting aside his conviction with the likelihood that he will never be prosecuted.1 We grant this beneficence to the defendant notwithstanding his undeniable waiver of the right in question. We reach this faulty result for the frail reason that the district judge did not adhere to the technicalities of a test-tube procedural rule.
At the outset it should be understood that the real question involved here is whether there was a waiver.
The defendant clearly had a constitutional right to be present at his trial. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892). This right is further provided in Fed.R.Crim.P. 43. The courts have long held, however, that constitutional rights *292may be knowingly waived. See, e.g., Smith v. United States, 360 U.S. 1, 79 S.Ct. 991, 3 L.Ed.2d 1041 (1959) (right to prosecution by indictment); Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930) (right to jury trial); Puckett v. United States, 314 F.2d 298 (10th Cir.1963) (right to counsel). Fundamental rights are waived every day in federal courts with less demonstration of clear intent than we have here. The general requirement is that the defendant knows and understands that he is waiving the right in question.
The United States Supreme Court has expressly stated that the right in question here may be knowingly waived by the voluntary absence of the defendant. Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973). The Federal Rules of Criminal Procedure expressly state that “the defendant shall be considered to have waived his right to be present whenever a defendant, initially present, voluntarily absents himself after the trial has commenced.” Rule 43(b) Fed.R.Crim.P. (emphasis added). Yet the panel here says that the defendant who was represented by an attorney, who participated in the selection of his jury, who undeniably knew of his trial and the date it was set, who appeared in or around the courthouse on the date of his trial, but who, once the trial against him had commenced, or shortly before, absented himself for four years, did not waive his right to be present. Why? Because the court did not make an “inquiry.” As the panel states:
Of course, had an inquiry before the trial proceeded established for the record that the defendant had deliberately absented himself and that there was no reasonable probability that he could be located shortly, we would be loath to say that the district court would have abused its discretion by failing to delay or reschedule the trial.
On this technicality a convicted criminal has his conviction set aside and is likely to go free. In my opinion this blind obeisance to the technicalities of a procedural rule is a classic example of reason in law becoming side-tracked by form and procedure.
Let us take a look at the rule before whose altar the majority bows. Starting with the last requirement and proceeding to the first: of course jurors are inconvenienced. Any delay in concluding proceedings inconveniences jurors. How much inconvenience may a wilful defendant impose on citizen jurors before the defendant’s constitutional rights may be adjudged as abandoned or waived? This question hardly seems a proper standard by which to evaluate constitutional rights.
Next, the burden upon the government in stopping the trial and starting up again is primarily viewed in terms of the effect upon the witnesses. There is always the possibility that witnesses may flee or otherwise be unavailable. Here some of the witnesses were aliens who were incarcerated and now, it is to be supposed, are lost, either back in their native Mexico or in anonymity in this country. It would seem to me that the burden on the government in stopping the trial and starting up again is always significant. In this case where the witnesses were incarcerated aliens it was particularly significant, a fact which, however, seems to make little impression on the majority.
The difficulty of rescheduling, we are told, is a consideration that the district court must take into account. Rescheduling, it would seem to me, would always be a significant problem, since there is hardly an underworked district court.
We are thus brought to the final consideration, and that is the likelihood that the trial can soon take place with the defendant present. In my view, this is the only consideration which has any genuine significance. If the trial court has no reason to believe that the defendant has voluntarily absented himself, then trial should not proceed. That is, if the court has no reason to believe that the defendant has waived his sixth amendment right, the waiver cannot be assumed. However, when, as here, a defendant is represented by an attorney, has sat through the selection of a jury, *293knows of his trial date, appears in or around the courthouse on the date of trial, with his family, and then disappears and cannot be located by his lawyer, it is reasonable to assume that his absence is “voluntary” as per Rule 43, that he intends to be gone as long as possible and that it is unlikely that the trial can be rescheduled in the near future.
If the Benavides rule of inquiry is to be applied methodically and mechanically without regard to common sense, it seems to me that the ends of justice would at least require that the defendant show that he was prejudiced by the failure of the court to apply the procedural rules for the inquiry. Here, clearly, the defendant was not prejudiced. If the trial had been adjourned, the presence of the defendant would not have been achieved. The court had issued a bench warrant for his arrest and the defendant apparently was nowhere to be found. It was four years later that he reappeared. Thus the district court’s rigid adherence to every detail of the Benavides inquiry would not have meant that the defendant’s right to be present at his trial would have been secured to him; in other words, there is absolutely no prejudice which the defendant has suffered as a result of the court’s failing to follow the rule which serves as the majority’s basis for rewarding the defendant’s reckless, irresponsible, contumacious and criminal conduct.
I recognize Benavides as the law of this circuit. The district courts should follow its rules of inquiry whenever possible and practicable. But there should be no requirement that Benavides must be applied rigidly in every case by us to the point of reversing a conviction when the known evidence reasonably shows that the defendant has voluntarily absented himself. If, however, we must apply Benavides inflexibly, we should at least require the defendant to show some prejudice to his right of presence at trial on account of the failure of the district court to apply Benavides.
Justice has been thwarted and I dissent.
. Four of the six witnesses called by the government were illegal aliens who had been incarcerated until the trial was completed. It is doubtful whether they can now be located, five years later.