IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 94-60227
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DOUG KROUT,
Defendant-Appellant.
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Appeal from the United States District Court for the
Southern District of Texas
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(June 19, 1995)
Before JOLLY, SMITH, and DeMOSS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Doug Krout was convicted, in absentia, on a charge of
possession of more than fifty kilograms of marijuana with intent
to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C).
Krout was in the courtroom when the jury was selected, but the jury
was not sworn until trial resumed several days later. By then, he
was gone. He simply failed to appear on the day that the
government was scheduled to start presenting its case.
Nevertheless, the trial went forward, and the jury convicted him.
Now he argues that the district court erred by trying him in his
absence. He also argues that the court erred by dismissing a
juror. For the reasons set out below, we hold that his absence
constituted a waiver of his right to be present at trial, that the
district court did not abuse its discretion in resuming trial
proceedings without him, and that the dismissal of a juror did not
constitute reversible error. We first set out a few background
facts before reaching the primary question that this appeal
presents.
I
While driving through a border patrol checkpoint on April 21,
1992, Krout aroused the suspicions of border patrol agents and then
fled. A high-speed chase ensued that ended with Krout wrecking his
car. After a short chase on foot, Krout was arrested. During a
search of his car, the border patrol found about eighty-three
kilograms of marijuana in the trunk.
The next month, a grand jury returned a one-count indictment
charging Krout with possession of more than fifty kilograms of
marijuana with intent to distribute, in violation of 21 U.S.C. §
841(a)(1) & (b)(1)(C). On June 30, 1992, the parties--with Krout
present--selected a jury and the court announced that trial would
begin on July 9. The jury was not sworn that day. Sometime
between jury selection and the presentation of evidence, a
magistrate judge dismissed a juror without notice to the parties.
The juror had informed the district court that he had scheduled an
out-of-town trip, and the court had advised the juror that he would
not be required to serve on the jury if the case was to be tried
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between July 10 and 25. On July 9, the day for resuming the trial,
Krout failed to appear in court.1 After issuing a bench warrant
for his arrest and holding a hearing, the court granted the
government's motion pursuant to Fed. R. Crim. P. 43 to try Krout in
his absence. The jury returned a guilty verdict the next day.
Over a year later, on August 21, 1993, Krout resurfaced when
he was arrested in Houston on an unrelated criminal matter. He was
sentenced, and the judgment against him was entered, on March 29,
1994.
We now consider whether the district court either erred in
proceeding to try him in his absence,2 or in refusing to grant a
mistrial in connection with the dismissal of a juror. We will
discuss each of these matters in turn.
1
On July 6, 1992, a pretrial services officer tried to contact
Krout to inform him that the resumption of his trial had been moved
up to July 7, but was unable to reach him. The officer spoke to
Krout's sister, who informed the officer that Krout did not know of
the July 7 trial date but would appear on July 9.
On July 7, a different district court judge called the case
for proceedings to resume. Krout did not appear. Krout's attorney
advised the court that he had been unable to reach his client to
inform him of the July 7 date, and that Krout did not return any
telephone messages left by his attorney. Because Krout was absent,
the court reset the case to the original July 9 date.
2
Krout also argues that the district court violated his
constitutional rights, specifically his Fifth Amendment due process
right and his Sixth Amendment right to confront witnesses, when it
proceeded to trial without him. To the extent that Krout's
arguments have substance, they are co-existent with the validity of
his waiver under Rule 43 and accordingly are not considered
separately.
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A
Codifying existing caselaw, Rule 43 of the Federal Rules of
Criminal Procedure mandates the presence of the defendant "at the
arraignment, 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 the sentence." The rule recognizes
exceptions, however: relevant here is its declaration that "[t]he
further progress of the trial . . . shall not be prevented and the
defendant shall be considered to have waived the right whenever a
defendant, initially present . . . is voluntarily absent after the
trial has commenced (whether or not the defendant has been informed
by the court or the obligation to remain during the trial)." Fed.
R. Crim. P. 43(b)(1).
As an initial matter, we must consider an issue of first
impression in this circuit: when, for purposes of Rule 43, does a
trial commence. Under Rule 43(b), the defendant's voluntary
absence "after the trial has commenced" is deemed a waiver of his
right to be present. The district court stated, in its ruling on
the government's motion to proceed in Krout's absence, that "the
case law establishes that the trial commences at the time the jury
voir dire process begins for purposes of Rule 43. This case has
commenced for purposes of Rule 43."
Relying upon double jeopardy cases and contending that
"[t]here is no rational distinction between double jeopardy and the
right to be present at trial in deciding when the trial begins,"
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Krout asserts, however, that the trial did not commence until the
jury was sworn.
We disagree with Krout's view of when trial begins under Rule
43. Other circuits that have considered the issue have held that,
for purposes of Rule 43, a trial commences when the parties begin
jury selection. The First Circuit reasoned that Rule 43 did not
refer to the commencement of jeopardy, but instead referred to the
commencement of trial, and stated that "[w]ith regard to a
defendant's presence at trial, the trial commences 'at least' from
the time the work of impaneling jurors begins." United States v.
Miller, 463 F.2d 600, 603 (1st Cir.), cert. denied, 409 U.S. 956
(1972). The Third Circuit applied Miller's reasoning to a
situation that is extremely close to this case,3 finding that trial
"commences" for Rule 43 purposes when jury selection begins.
Government of the Virgin Islands v. George, 680 F.2d 13, 15 (1982).
The Fourth Circuit, furthermore, recently reversed a conviction,
basing its decision in part upon Rule 43's requirement that the
defendant be present during the impanelment of the jury. United
States v. Camacho, 955 F.2d 950 (4th Cir. 1992).
3
In George, the defendant was present for jury selection, then
failed to appear when trial resumed ten days later. George, 680
F.2d at 14. The defendant did, however, eventually return to
court. The district court, nevertheless, had resumed its
proceedings without him. The jury convicted him of the offenses
with which he was charged, and on appeal he made some of the same
arguments that Krout is presenting today. Id. at 14-15.
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We find the reasoning of our sibling circuits to be persuasive
on this issue and hold that, for the purposes of Rule 43 of the
Federal Rules of Criminal Procedure, trial begins when jury
selection begins. The most compelling reason for this
interpretation is the plain language of the Rule itself. The Rule
simply states that the defendant is required to be present "at
every stage of the trial including the impaneling of the jury."
Indeed, our research, does not reveal a contrary interpretation of
the Rule. The trial, therefore, had commenced when Krout decided
to depart.4
B
With the "commencement of trial" issue resolved, we must now
address Krout's argument that the district court erred when it
resumed trial without him because he did not knowingly and
voluntarily waive his right to be present. He argues that because
there is no evidence that he knew that the trial could proceed
without him, or that he had the right to be present throughout his
trial, or that this right could be waived, the trial court erred
when it carried on proceedings without him. We think that although
4
We note that this interpretation is consistent with the
Supreme Court's reasoning in Crosby v. United States, U.S. ,
113 S.Ct. 748 (1993), that looked to the plain language of Rule 43
to find implicitly that the impanelment of the jury is considered
a stage of the trial. We also note that the result we reach today
is in accord with our determination of when trial begins under the
Speedy Trial Act, 18 U.S.C. § 3161 et seq. See United States v.
Howell, 719 F.2d 1258 (5th Cir. 1983), cert. denied, 467 U.S. 1228,
104 S.Ct. 2683, 81 L.Ed.2d 878 (1984).
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the district court properly engaged in the balancing test of
determining whether to proceed in the absence of the defendant,5
that question is irrelevant now because under the circumstances
before us it is clear that pursuant to the very language of Rule
43, the defendant waived his right to be present at trial. Rule 43
states that "the defendant shall be considered to have waived the
right to be present when a defendant, initially present, . . . is
voluntarily absent after the trial has commenced (whether or not
the defendant has been informed by the court of the obligation to
remain during the trial)." Although Krout argues that the record
at the time of the hearing does not show unequivocally that he
voluntarily absented himself from the proceedings, we cannot find
error in the court's determination, especially in the light of the
fact that Krout was apprehended over one year later. Because the
defendant waived his right to be present at the proceedings, the
district court did not abuse its narrow discretion by resuming
trial.
5
In deciding whether to continue a trial in the absence of the
defendant, the court "must at the time make a record inquiry to
attempt to ascertain the explanation for the absence of the accused
and whether, balancing the likelihood that the trial could soon
take place with the defendant's presence against the undue
convenience or prejudice occasioned by a slight delay or a
rescheduling of the trial. United States v. Beltran-Nunez, 716
F.2d 287, 291 (5th Cir. 1983). In the instant case, the district
court postponed the trial for two days, and after the case was
called a second time the court immediately conducted a Rule 43
inquiry in which the judge discussed the factors of United States
v. Benavides, 596 F.2d 137, 139-40, and made appropriate findings.
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C
Finally, Krout contends that the district court erred when it
refused to grant his motion for a mistrial because of the dismissal
of a juror by a magistrate judge, and his replacement with a duly
empaneled alternate juror by the district judge, when trial
resumed.
Concededly, this case presents somewhat unusual circumstances.
Sometime between jury selection and resuming the trial, a
magistrate judge excused a juror without notifying the parties. In
denying Krout's motion for a mistrial, the district court stated "I
wish we had been consulted before [the juror] had been released,
but I don't believe that--since we have three alternates, I don't
believe that's grounds for a mistrial." Krout contends that he had
no opportunity to challenge the magistrate judge's decision and
that he believed that the juror was favorable to his cause.
The district court's decision not to grant a mistrial is
reversible only if it abused its discretion. United States v.
Willis, 6 F.3d 257, 263 (5th Cir. 1993). We review the decision to
substitute an alternate juror under Fed. R. Crim. P. 24(c) for
prejudice. See United States v. Phillips, 664 F.2d 971, 993 (5th
Cir. 1981). Without a showing of bias or prejudice, the court's
decision to replace a juror is not to be disturbed. United States
v. Rodriguez, 573 F.2d 330, 333 (5th Cir. 1978).
Krout does not explain precisely in what respect the district
court's decision constitutes an abuse of discretion that would
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require a reversal of his conviction. Instead, he simply restates
the facts, and quotes the district court's ruling. He also implies
that, because the juror was excused by a magistrate judge that was
acting without authority, the district court abused its discretion
in denying his motion for a mistrial. Then, Krout says, in
addition to abusing its discretion, the district court violated
Rule 43.
We find that Krout has failed to show bias or prejudice in the
court's decision, or that the decision prejudiced his case. "Every
[juror] replacement involves a change in the jury's composition.
How much weight should be given this factor is a matter for the
sound discretion of the trial judge." Rodriguez, 573 F.2d at 333.
Krout does not assert any grounds for impuning the motives of the
court, nor does he contend that the resulting jury was deficient.
Instead, he simply states a "belief" that the excused juror was
favorable to his case. Moreover, Krout had the opportunity to
challenge the qualifications of alternate jurors when they were
selected. Thus, he has failed to show bias or prejudice, and,
accordingly, the district court did not abuse its discretion in
refusing to grant a mistrial.
II
To sum up, we find that, for the purposes of Rule 43 of the
Federal Rules of Criminal Procedure, trial commences when the jury
selection process begins. We also find that because Krout
voluntarily absconded after the process had begun, and certainly
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now in the light of his greater than one-year absence, the district
court did not abuse its discretion in proceeding with the trial.
Finally, the district court did not abuse its discretion by
refusing to grant a mistrial when a juror was excused by a
magistrate judge because Krout failed to show how this decision
biased or prejudiced him. Thus, for the foregoing reasons, the
judgment of the district court is
A F F I R M E D.
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