United States v. Allen ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4788
MARK JAY ALLEN, a/k/a Justin Mark
Allen,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
G. Ross Anderson, Jr., District Judge.
(CR-97-480-7)
Submitted: April 30, 1999
Decided: May 28, 1999
Before MURNAGHAN, ERVIN, and WILKINS, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Benjamin T. Stepp, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. J. Rene Josey, United States Attorney,
Harold Watson Gowdy, III, Assistant United States Attorney, Green-
ville, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Mark Jay Allen was indicted on two counts of assault of a postal
employee with intent to rob (18 U.S.C.A. § 2114(a) (West 1984 &
Supp. 1999)), one count of possession of a firearm by a convicted
felon (18 U.S.C.A. § 922(g)(1) (West 1976 & Supp. 1999)), and two
counts of using and carrying a firearm during and in relation to a
crime of violence (18 U.S.C.A. § 924(c) (West 1976 & Supp. 1999)).
After jury selection, Allen escaped from custody. The district court
proceeded with the trial in Allen's absence and the jury found Allen
guilty on all five counts of the indictment. The district court sentenced
him to 627 months in prison. Allen appeals. Finding no merit to his
claims, we affirm.
First, Allen contends that the trial court erred by trying him in his
absence. We find that the trial had commenced for purposes of Fed-
eral Rule of Criminal Procedure 43 before Allen escaped and that the
district court did not abuse its discretion by proceeding with the trial
in Allen's voluntary absence. See Fed. R. Crim. P. 43; United States
v. Krout, 56 F.3d 643, 645-46 (5th Cir. 1995); United States v.
Camacho, 955 F.2d 950, 953-54 (4th Cir. 1992).
Allen also charges that the district court erred by failing to dismiss
the jury panel after learning that many of the jurors knew that Allen
had escaped and that, in particular, the court should have discharged
the juror who knew not only that Allen had escaped, but that he had
car jacked a woman in the process. The judge questioned each juror
about his or her knowledge of the escape and whether Allen's absence
would affect his or her decision about Allen's guilt or innocence, and
then instructed them that Allen's absence had nothing to do with his
guilt or innocence and that he was presumed innocent until proven
guilty beyond a reasonable doubt. Only one juror stated that the rea-
son for Allen's absence would affect her decision and the judge dis-
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charged that juror. We find that the district court's decision not to
excuse the rest of the jury panel, including the one juror who knew
not only of the escape but also about the car jacking, was not an abuse
of discretion. See Poynter v. Ratcliff, 874 F.2d 219, 222 (4th Cir.
1989).
For these reasons, we affirm Allen's conviction. We deny his
motions to have his court-appointed lawyer removed from his case
and to have new counsel appointed. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED
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