United States v. Achbani, Lahbib ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-4190
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LAHBIB ACHBANI,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 CR 363—Robert W. Gettleman, Judge.
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ARGUED OCTOBER 3, 2007—DECIDED NOVEMBER 8, 2007
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Before COFFEY, RIPPLE and KANNE, Circuit Judges.
RIPPLE, Circuit Judge. In December 2005, Lahbib Achbani
pleaded guilty to making and uttering a counterfeit
check in violation of 18 U.S.C. § 513(a). Mr. Achbani
disappeared shortly before his scheduled sentencing
hearing. The district court postponed the hearing several
times while the Government searched for Mr. Achbani.
Ultimately the court found that Mr. Achbani had ab-
sconded and sentenced him in absentia to 33 months’
imprisonment. Although Mr. Achbani remains missing,
his counsel appeals the decision to proceed in Mr.
Achbani’s absence.
2 No. 06-4190
We affirm Mr. Achbani’s sentence. The district court
took all the necessary steps to ensure that Mr. Achbani’s
absence was voluntary, and the evidence overwhelm-
ingly suggested that he had fled the jurisdiction to avoid
imprisonment.
I
BACKGROUND
In late 2004, Mr. Achbani manufactured a $100,000
counterfeit check, deposited it and withdrew part of the
funds to pay off various debts. Between the time of his
indictment in May 2005 and his guilty plea that December,
Mr. Achbani assisted in a government investigation that
led to the recovery of nearly $2 million in stolen goods
and the filing of charges against others. Although the
parties did not enter into a written plea agreement, the
Government anticipated moving for a prison sentence
below the guidelines range because of Mr. Achbani’s
“substantial assistance.” See U.S.S.G. § 5K1.1.
In February 2006, however, the Government informed
the probation officer and defense counsel of its recent
discovery that, after his indictment, Mr. Achbani had
passed additional counterfeit checks and had been
charged with criminal trespass to a vehicle. These discover-
ies led the Government to propose a higher intended-loss
amount than the parties originally had anticipated and to
suggest that Mr. Achbani was not entitled to a reduction
for acceptance of responsibility. On April 26, 2006, the
probation office issued a pre-sentence report (“PSR”)
recommending that the district court adopt these positions.
Mr. Achbani failed to appear for his sentencing that
May, and defense counsel informed the court that he did
No. 06-4190 3
not know of Mr. Achbani’s whereabouts. The court there-
fore asked counsel whether it was appropriate to sen-
tence Mr. Achbani in absentia under Federal Rule of
Criminal Procedure 43(c)(1)(B), which provides that a
defendant waives his right to be present at sentencing if
he is voluntarily absent. The Government proposed, and
the district court readily agreed, that Mr. Achbani’s
sentencing should be postponed so the Government could
investigate whether he was, indeed, voluntarily absent.
Mr. Achbani’s counsel then submitted a memorandum
urging the court to refrain from sentencing him in absentia
because, in counsel’s view, there was insufficient evidence
for the court to conclude that Mr. Achbani was volun-
tarily absent. Counsel suggested, for instance, that
Mr. Achbani might have been taken into immigration
custody because he was in the United States illegally. The
court again postponed his sentence, set a second status
hearing for July, and ordered the Government to present
the results of its investigation at that time.
At the July hearing, the Government informed the court
that it had learned from Immigration and Customs En-
forcement that a person with Mr. Achbani’s name and date
of birth had traveled to Austria in mid-April 2006, using
a Moroccan passport. The Government noted that it
possessed the Moroccan passport issued to Mr. Achbani
before his arrest but surmised that he had obtained a
new one. Mr. Achbani’s counsel was unable to offer
another theory. He responded, however, that the case
should be placed on the fugitive calendar and sentencing
deferred. Even if the court now found Mr. Achbani volun-
tarily absent, he contended, the public’s interest in pro-
ceeding was minimal compared to Mr. Achbani’s interest
in reviewing the PSR. The court found Mr. Achbani
4 No. 06-4190
voluntarily absent and concluded that justice would be
best served by proceeding. It scheduled a sentencing
hearing for August.
A few days prior to the hearing, the Government pre-
sented additional information to Mr. Achbani’s counsel
and the court. A woman, who identified herself as
Mr. Achbani’s former girlfriend and was living at an ad-
dress that he had given to the probation office, informed
a Deputy United States Marshal that, in April of 2006,
Mr. Achbani had disappeared with a car that she had
leased for him. Later that month, he also had called to
tell her that he was visiting family in France. A deputy
marshal confirmed that the woman had reported to the
police that the vehicle had been stolen. The Government
further confirmed that Mr. Achbani was not in immigra-
tion custody and that it knew of no record indicating that
he was in the custody of any other law-enforcement
agency.
At the sentencing hearing, Mr. Achbani’s counsel again
maintained that Mr. Achbani’s voluntary absence had
not been established. Defense counsel reiterated his
contention that such a finding was inappropriate be-
cause, in his view, the evidence still did not demonstrate
concretely that Mr. Achbani had fled. The district court
rejected that argument, but, at defense counsel’s urging,
it declined to consider as relevant conduct Mr. Achbani’s
newly discovered criminal behavior. Instead, it adopted
the original, lower intended-loss figure that Mr. Achbani
had anticipated. The court further concluded that his
absence meant that he would receive no reduction for
acceptance of responsibility; indeed, Mr. Achbani’s coun-
sel did not suggest otherwise. The court ultimately sen-
tenced Mr. Achbani at the low end of the advisory guide-
No. 06-4190 5
lines range, principally because of the significant assistance
to the Government that he had provided before abscond-
ing. Counsel filed an appeal on Mr. Achbani’s behalf.
II
DISCUSSION
Mr. Achbani’s counsel contends that the district court
should not have sentenced him in absentia. Counsel submits
that the Government failed to demonstrate that Mr.
Achbani’s absence was “voluntary,” as Rule 43 requires,
because the Government did not search for him in hospi-
tals or morgues or check with other law-enforcement
agencies. Counsel points out that Mr. Achbani had made
himself a likely target for attack when he cooperated in
a government investigation and noted that he already
had been arrested once since his guilty plea.
Rule 43 guarantees a defendant the right to be present
at both trial and sentencing. See Fed. R. Crim. P. 43(a);
United States v. Agostino, 132 F.3d 1183, 1200 (7th Cir. 1997);
United States v. Watkins, 983 F.2d 1413, 1418 (7th Cir. 1993).
Prior to 1995, the rule provided that, under certain cir-
cumstances, a defendant could waive his right to be
present at trial; the rule was silent, however, as to whether
the right to be present at sentencing similarly could be
waived. See C. Wright, Federal Practice and Procedure
(Criminal) § 723, at 25-26 (2d ed. 1982). This disparity in
the language of the rule caused some courts to conclude
that the right to be present at sentencing never could be
6 No. 06-4190
waived, even when the defendant had fled.1 Apparently
in response to these decisions, Rule 43 was amended in
1995 to provide explicitly that a defendant in a noncapital
case waives the right to be present at his sentencing if he
is “voluntarily absent.” See Fed. R. Crim. P. 43(c)(1)(B);
C. Wright, Federal Practice and Procedure (Criminal) § 723,
at 38-39 (3d ed. 2004). The drafters explained that this
amendment was intended to “make clear that a
defendant . . . who has entered a plea of guilty or nolo
contendere, but who voluntarily flees before sentencing,
may nonetheless be sentenced in absentia.” Fed. R. Crim. P.
43, advisory committee notes.
This circuit has not yet addressed the question of when
a defendant is “voluntarily absent” from his sentencing.
Only two circuits have addressed this issue, and the
facts of those cases are very different from those before us.
The defendants in those cases were voluntarily absent
because they had escaped forcibly from presentence
custody and thus clearly had absconded. See United States
v. Robinson, 390 F.3d 853, 856 (6th Cir. 2004); United States
v. Jordan, 216 F.3d 1248, 1248-50 (11th Cir. 2000).
Recognizing these distinctions, both defense counsel
and the Government rely on case law that interprets
Rule 43(c)(1)(A), the waiver provision that pertains to
trials. Like the sentencing provision, the trial provision of
Rule 43 permits the court to proceed in the defendant’s
absence if he is “voluntarily absent” after the proceedings
have commenced. Fed. R. Crim. P. 43(c)(1)(A). We believe
1
See United States v. DeValle, 894 F.2d 133, 137 (5th Cir. 1990);
United States v. Songer, 842 F.2d 240, 242 (10th Cir. 1988); United
States v. Curtis, 523 F.2d 1134, 1135 (D.C. Cir. 1975).
No. 06-4190 7
that this case law is an appropriate source of guidance for
two reasons. First, under general principles of statutory
interpretation, we assume that the same words have
the same meaning throughout a given provision. See Perry
v. First Nat’l Bank, 459 F.3d 816, 820-21 (7th Cir. 2006).
Second, as discussed above, it appears that the 1995
amendment sought to eradicate the disparity in the courts’
treatment of defendants’ absences from trial and from
sentencing. Consequently, we employ the same standard
in determining whether the district court proceeded ap-
propriately in this case.
We review for clear error a district court’s finding
of voluntary absence. See Watkins, 983 F.2d at 1419. In the
trial context, we have explained that the district court
should indulge every reasonable inference against a
finding of voluntary absence. See id. Before proceeding, the
district court must explore on the record any “serious
questions” raised about whether the defendant’s absence
was knowing and voluntary. See id. at 1419; United States v.
St. James, 415 F.3d 800, 804 (8th Cir. 2005); United States v.
Davis, 61 F.3d 291, 302 (5th Cir. 1995). For example, a
defendant taken into legal custody is not voluntarily
absent, see Larson v. Tansy, 911 F.2d 392, 397 (10th Cir.
1990); nor is a defendant who has been hospitalized due
to illness, see United States v. Novaton, 271 F.3d 968, 996-
97 (11th Cir. 2001).
As the case law makes clear, however, the district court’s
duty to explore such possibilities varies to the extent that
defense counsel suggests circumstances that raise a plausi-
ble doubt that the defendant’s absence was voluntary.
Compare Davis, 61 F.3d at 302-03 (holding that the court
did not err in finding the defendant voluntarily absent,
despite counsel’s claim that the defendant was mentally
8 No. 06-4190
ill, when the district court conducted an exhaustive re-
view of his medical and hospital records); St. James,
415 F.3d at 804-05 (same) with United States v. Edmonson,
962 F.2d 1535, 1544 (10th Cir. 1992) (holding that the
court did not err in finding a defendant voluntarily absent
when he failed to appear on the morning of trial and the
court gave his counsel until the afternoon to contact the
defendant and directed marshals to search the courthouse).
Here, the district court’s finding that Mr. Achbani was
voluntarily absent was not clear error. The district court
postponed Mr. Achbani’s sentencing two times over
three months; it drew every possible reasonable inference
in his favor; and it required that, before sentencing
would proceed, the Government had to conduct an investi-
gation into the alternative possibilities that counsel identi-
fied, especially Mr. Achbani’s immigration status. The
evidence that the Government ultimately collected—
particularly evidence that a person with Mr. Achbani’s
name and birthday had flown to Austria shortly after he
had disappeared—ruled out a “serious” possibility, see
Watkins, 983 F.2d at 1419, that Mr. Achbani was dead,
hospitalized or in legal custody. Counsel proffered no
additional evidence to demonstrate that Mr. Achbani’s
absence was involuntary. Moreover, Mr. Achbani had
learned of the Government’s discovery of his ongoing
criminal activity, which certainly gave him ample in-
centive to flee.
Counsel next argues that, even if Mr. Achbani did flee,
the district court should have continued postponing his
sentencing because his interest in being present out-
weighed the public’s interest in proceeding. Counsel again
looks to the trial context, where the case law provides
that the trial of even a voluntarily absent defendant
No. 06-4190 9
should be stayed unless the public interest in proceeding
clearly outweighs the defendant’s interest in being present.
See Watkins, 983 F.2d at 1419; Davis, 61 F.3d at 302; United
States v. Bradford, 237 F.3d 1306, 1312-13 (11th Cir. 2001).
Even if, as defense counsel submits, the “public interest
test” applies equally to sentencing proceedings, we
cannot accept this argument. Counsel contends that
Mr. Achbani’s interests outweighed the public’s interest
because Mr. Achbani could not review with counsel the
recommendations in the PSR stemming from his newly
discovered criminal activity. As one circuit has held,
however, when a district court finds that a defendant
voluntarily absents himself from sentencing, he must also
be deemed to have waived his right to review the PSR,
see 18 U.S.C. § 3552(d); otherwise, Rule 43 would be
“largely useless.” Jordan, 216 F.3d at 1250. In any event,
as the Government emphasizes, the district court ex-
plicitly disregarded the additional crimes when it calcu-
lated Mr. Achbani’s sentence. Defense counsel offers no
other interests of Mr. Achbani that outweighed the
public’s interest in bringing finality to these criminal
proceedings.
Conclusion
For the foregoing reasons, we affirm Mr. Achbani’s
sentence.
AFFIRMED
10 No. 06-4190
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-8-07