United States v. Walker

UNITED STATES OF AMERICA, Plaintiff, v. BRANDON WALKER, Defendant.

Cr. No. 15-2846 JCH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

October 6, 2016

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendant's Unopposed Motion To Authorize Waiver of Defendant's Presence at Sentencing Hearing. [Doc. 41] Having reviewed the motion, briefing, transcript of the September 22, 2016 hearing, and relevant law, the Court concludes that the motion should be denied.

PROCEDURAL BACKGROUND

On June 25, 2015, a complaint was filed charging Defendant with: Crime on Indian reservation, in violation of 18 U.S.C. § 1153, and Assault resulting in serious bodily injury, in violation of 18 U.S.C. § 113(a)(6). [Doc. 1] On August 11, 2015, an indictment was filed on the same charges. [Doc. 12] On December 22, 2015, Defendant pleaded guilty to the indictment without a plea agreement. [Docs. 34, 35]

On January 22, 2016, the Court issued a Sealed Sua Sponte Order for Evaluation of Mental Competency, committing Defendant to the custody of the Attorney General for a reasonable period of time, not to exceed four months, to determine whether there is a substantial probability that in the foreseeable future he will attain the capacity for the proceedings to go forward. [Doc. 36] Defendant was transferred to the Federal Medical Facility in Butner, North Carolina ("FMC-Butner"). In June 2016, the Court was advised that Defendant had been restored to competency; a forensic evaluation was filed with the Court.

On July 13, 2016 Defendant filed the Unopposed Motion To Authorize Waiver of Defendant's Presence at Sentencing Hearing. [Doc. 41] On July 22, 2016, the Court issued an order directing counsel to submit briefs on the issue of whether a Defendant may waive his appearance at sentencing. [Doc. 45] Defendant filed a brief on August 22, 2016. [Doc. 47]

On September 22, 2016, the Court held a hearing on the motion. The Court heard oral argument from counsel for Defendant and the Government; no evidence was presented.

DEFENDANT'S ALLEGATIONS

Defense Counsel states that Dr. Kristina P. Lloyd, who prepared the forensic evaluation, informed him that "medical staff at FMC-Butner are concerned that transferring Mr. Walker back to the District of New Mexico, and into the custody of the United States Marshal to be detained at a local county jail, could be extremely detrimental to the mental and physical health of Mr. Walker," and that Dr. Lloyd is concerned that such a transfer "would result in an interruption of Mr. Walker's ongoing medical treatment and result in setbacks to the progress he has obtained." [Doc. 41, p. 2, ¶ 6] Defense Counsel further states that: "Dr. Lloyd fears that a local county jail, or a private facility operated by Corrections Corporation of America (CCA) is not equipped to properly care for Mr. Walker and administer required medications"; "Dr. Lloyd is concerned that Mr. Walker would be placed in solitary confinement (as was previously the case) which would be extremely damaging to his mental state"; "Dr. Lloyd worries that Mr. Walker would mentally decompensate should he be returned to the Marshal's custody, and thathe would resort to the same self-injurious behaviors that caused his referral to the federal medical facility in the first place." [Doc. 41, p. 2, ¶ 6]

Defendant states: "Based upon Dr. Lloyd's request, the parties have discussed the possibility that Mr. Walker be allowed to remain in FMC-Butner through sentencing, and then, in the event he is required to serve more time in federal custody, remain at the medical facility or be transferred directly from the medical facility to his destination in the Bureau of Prisons, bypassing the local county jail or CCA facility." [Doc. 47, p. 2, ¶ 3] "This option was initially suggested by Dr. Lloyd." [Doc. 47, p. 2, ¶ 3]

DISCUSSION

Defense Counsel filed this motion asking the Court to permit Mr. Walker to waive his personal appearance at a sentencing hearing and to appear via videoconference. Defense Counsel states that he would travel to FMC-Butner and appear by videoconference with Mr. Walker at a sentencing hearing. [Doc. 41, p. 3] Counsel for the Government does not oppose the motion.

Defendant argues that Federal Rule of Criminal Procedure 43(c)(1)(B) permits the Court to allow Mr. Walker to waive his personal appearance at sentencing and to appear by videoconference. Defendant's position is that "Rule 43(c)(1)(B)'s 'voluntarily absent' language incorporates the situation where defendant knowingly and voluntarily waives his presence at sentencing." [Doc. 47, pp. 5-6, ¶ 11] Defense Counsel represents that the Court could ascertain, via videoconference, whether Mr. Walker's waiver of his right to personally appear at sentencing was knowing and voluntary. [Doc. 47, p. 6, ¶ 12] Defense Counsel argues that the "circumstances in this case are extraordinary," and suggests that if transferred for sentencing, Mr.Walker might "quickly lose that competency prior to sentencing, forcing further delays for additional treatment and evaluations." [Doc. 47, p. 6, ¶ 13]

The Tenth Circuit has held that "presence" at sentencing means physical presence in court. United States v. Torres-Palma, 290 F.3d 1244, 1245 (10th Cir. 2002); see United States v. Salim, 690 F.3d 115, 122 (2d Cir. 2012) (stating that "every federal appellate court to have considered the question has held that a defendant's right to be present requires physical presence and is not satisfied by participation through videoconference"). Torres-Palma held that the use of videoconferencing at sentencing violates the provision of Federal Rule of Criminal Procedure 43, which requires a defendant to be "present" at the imposition of sentence. Torres-Palma, 290 F.3d at 1245.

Considering a prior version of Rule 43 (before the 2011 amendment¹), the Tenth Circuit held that, although Rule 43 allows some exceptions, none explicitly permits the use of videoconferencing. Id. Torres-Palma recognized that it should not elevate form over substance but "there is significant substance here to inform our decision," and held that "video conferencing for sentencing is not within the scope of a district court's discretion." Id. at 1246, 1248 (emphasis added). The Tenth Circuit stated that "Rule 43 vindicates a central principle of the criminal justice system, violation of which is per se prejudicial." Id. at 1248. The Court explicitly rejected the government's argument for a flexible interpretation of Rule 43. Id. at 1247-48 (the issue in that case being whether visiting judges could sentence by videoconference after they have returned to their home districts). "Although convinced of the need for and the benefits of technology to facilitate expeditious disposition of the ever-growing caseloads in federal courts, we find ourselves unable to reach any conclusion other than the word, 'present,' in the context of Rule 43, means the defendant must be physically present before the sentencingcourt." Id. at 1245. The Tenth Circuit concluded: "We believe the only relief from this result is a redrafting of the language of Rule 43." Id. at 1248.

At the September 22, 2016 hearing, the Government argued that the threat to Defendant's wellbeing and competence should be balanced against the requirements of Rule 43, and that this case is within the "very limited area" in which the Rule allows a waiver of physical presence. [Tr. 9/22/16, pp. 10-11] The Government's argument that a flexible approach should be taken, and that the Court can apply a balancing test, was expressly rejected by the Tenth Circuit in Torres-Palma.

Defendant attempts to distinguish Torres-Palma by pointing out that the defendant in that case objected to sentencing by videoconference. Id. at 1245. But, given the language and reasoning of Torres-Palma, this distinction does not allow a different result. Approving the analyses of Lawrence and Navarro, the Tenth Circuit held that these "very persuasive" analyses of the rule "will not support a flexible reading of Rule 43." Torres-Palma, 290 F.3d at 1247-48; United States v. Lawrence, 248 F.3d 300 (4th Cir. 2001); United States v. Navarro, 169 F.3d 228 (5th Cir. 1999). The government in Torres-Palma argued that the Tenth Circuit should apply a "harmless error-prejudice analysis" because the defendant could not show that he was prejudiced by the videoconference, although he objected to it. Torres-Palma, 290 F.3d at 1248. The Tenth Circuit rejected this argument, saying that the Court saw "the harmless error argument as simply another face to the contentions advanced by the government in Navarro and Lawrence that Rule 43(a) should be broadly construed" and subjected to a flexible reading. Id. The Tenth Circuit held that Rule 43 is not subject to a flexible reading, that "the only relief from this result is a redrafting of the language of Rule 43," and that "video conferencing for sentencing is not within the scope of a district court's discretion." Id. (emphasis added).

In a well-reasoned and persuasive opinion, Judge Browning denied a defendant's unopposed motion to allow waiver of the right to be personally present and to appear by videoconference at sentencing. United States v. Jones, 410 F. Supp. 2d 1026 (D.N.M. 2005) (considering Rule 43 before 2011 amendment). The defendant in Jones had signed a written waiver, stating that he did not want to risk his health by returning to New Mexico. Id. at 1029. Stating that the issue was whether a defendant can consent to sentencing by videoconference, Judge Browning concluded that under Torres-Palma, Rule 43 still does not allow sentencing by videoconference when the motion is unopposed. "The Tenth Circuit has stated that a district court has no discretion to use video conferencing for sentencing." Id. Jones observed that the provisions of other rules support this result. Federal Rule of Criminal Procedure 10(c) (arraignment) and Federal Rule of Criminal Procedure 5(f) ...