United States v. Ronald Wallingford ( 1996 )

___________
No. 95-3822
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Ronald D. Wallingford, *
*
Appellant. *
___________
Submitted: April 8, 1996
Filed: April 30, 1996
___________
Before MAGILL, Circuit Judge, HENLEY, Senior Circuit Judge, and LOKEN,
Circuit Judge.
___________
HENLEY, Senior Circuit Judge.
Ronald D. Wallingford appeals from a final judgment of the district
1
court entered upon a jury verdict finding him guilty of conspiracy to
distribute and distribution of methamphetamine. We affirm.
Wallingford first argues that the district court violated Fed. R.
Crim. P. 43(b)(1), which provides:
The further progress of the trial to and including the return
of the verdict . . . will not be prevented and the defendant
will be considered to have waived the right to be present
whenever a defendant, initially present at trial . . . is
voluntarily absent after the trial has commenced (whether or
not the defendant has been informed
1
The Honorable Ronald E. Longstaff, United States District
Judge for the Southern District of Iowa.
by the court of the obligation to remain during trial)[.]
In this case, Wallingford was present from May 31, 1994, when trial
began, until Friday, June 3, 1994, when both sides rested. However,
Wallingford was not present when trial resumed for closing arguments at
8:30 a.m. on Monday, June 6. At 9:00 a.m., in response to the court's
inquiry, counsel confirmed that he had not heard from Wallingford and that
Wallingford did not have a telephone. The court stated that after having
discussed the matter informally with both counsels, it would proceed with
closing arguments, instructions and jury deliberations but would inform the
jury that Wallingford was unable to attend. Wallingford's counsel moved
for a mistrial, suggesting that Wallingford's absence might be due to
health problems. The court denied the motion for a mistrial and issued a
bench warrant for Wallingford's arrest. Before closing arguments and
instructions, the court informed the jury that "Mr. Wallingford was unable
to be with us today." After the jury convicted Wallingford, counsel filed
a motion for a new trial, alleging, among other things, a Rule 43
violation. In denying the motion, the district court held that
Wallingford, who still had not appeared, had suffered no prejudice from
concluding the trial in his absence, noting he had been present for all of
the trial except for closing arguments, instructions and deliberation. The
court further noted that delaying the trial would have been a hardship on
the jurors and to reconvene a new jury would have been a waste of judicial
resources. Wallingford was eventually arrested on March 2, 1995 and
sentenced on October 31, 1995 to 235 months imprisonment.
On appeal Wallingford does not contend that he was not voluntarily
absent from trial on June 6. Nor does he disagree that the district
court's finding regarding voluntary absence is reviewed for clear error and
that its decision to proceed with trial in absentia is reviewed for an
abuse of discretion. See United States v. Davis, 61 F.3d 291, 302 (5th
Cir. 1995), cert.
-2-
denied, 116 S. Ct. 961 (1996). Rather, he argues that the court committed
reversible error by failing to conduct a proper inquiry into whether he was
voluntarily absent. The government responds that even if the district
court had erred, any error is harmless since Wallingford concedes that he
was a fugitive on the morning of June 6.
In deciding whether to proceed with trial in absentia, a district
court must determine and make appropriate findings "(1) whether the
defendant's absence is knowing and voluntary, and (2) if so, whether the
public interest in the need to proceed clearly outweighs that of the
voluntarily absent defendant in attending the trial." Id. In addition,
to aid appellate review of a finding of voluntary absence, a district court
should "at the time make a record inquiry to attempt to ascertain the
explanation for the absence of the accused." United States v. Krout, 56
F.3d 643, 646 n.5 (5th Cir. 1995) (internal quotation omitted), cert.
denied, 116 S. Ct. 782 (1996). However, it is clear that "a violation of
Rule 43 may in some circumstances be harmless error." Rogers v. United
States, 422 U.S. 35, 40 (1975). In this case, we agree with the government
that assuming the district court should have made a more thorough inquiry
to determine whether Wallingford was voluntarily absent, any error was
harmless. As the government points out, Wallingford concedes he was a
fugitive and thus cannot prove he was involuntarily absent when court
convened the morning of June 6. Indeed, "no issue of the voluntariness of
his disappearance [has] ever [been] raised." Taylor v. United States, 414
U.S. 17, 20 (1973) (per curiam).
In similar circumstances, appellate courts have found harmless error
and no abuse of discretion in a district court's decision to proceed with
trial in absentia. For example, in United States v. Guyon, 27 F.3d 723,
727 (1st Cir. 1994), the defendant did not dispute the district court's
finding that he was voluntarily absent, but argued reversible error because
the court failed to
-3-
make findings concerning its balancing of interests. The First Circuit
held that "any error the court made in failing to make explicit findings
. . . was harmless" and that the court did not abuse its discretion in
proceeding with trial in absentia, given that the defendant had "fled at
the eleventh hour, in an apparent attempt to manipulate trial process in
the exact manner that [Rule] 43(b) is designed to prevent." Id. at 728.
See also United States v. Krout, 56 F.3d at 646 (even if record did "not
show unequivocally that [defendant] voluntarily absented himself from the
proceedings" no abuse of discretion in proceeding with trial in absentia,
"especially in the light of the fact that [defendant] was apprehended over
one year later"). The Supreme Court has stated that "there can be no doubt
whatever that the governmental prerogative to proceed with a trial may not
be defeated by the conduct of the accused that prevents the trial from
going forward." Taylor v. United States, 414 U.S. at 20 (internal
quotation omitted).
We also reject Wallingford's argument that the district court erred
in failing to grant his motion for a new trial based on an extra-judicial
contact between an alternate juror and a restaurant employee. On Friday,
June 3, while the alternate juror, who was wearing a juror identification
badge, was on a lunch break at a restaurant near the courthouse, a
restaurant cashier said to her, "I hope you don't find 'em guilty." The
alternate juror immediately reported the comment to the members of the jury
and to a court security officer, who in turn reported it to the district
court. On Monday, after the jury retired for deliberations, the court
conducted a hearing at which the alternate juror, who did not serve on the
jury, testified that she believed that the comment was a casual remark and
did not "think that [the cashier] meant anything specific," explaining that
the cashier "would [not] have any clue what trial I was on" and would have
said the remark to "anybody standing there with a juror tag on."
Wallingford did not move for a mistrial or request that the court examine
the jury
-4-
panel concerning the comment. However, in a motion for a new trial, he
alleged juror misconduct based on the comment. The court denied the
motion, noting that the comment was unsolicited and that the juror promptly
reported it. Moreover, the court found that Wallingford had not been
prejudiced by the reporting of the comment to the jury because it was
nothing more that an "off-hand remark by a restaurant employee."
Initially we note that "by failing to object to the procedures used
by the district court or to request a mistrial," Wallingford has failed to
preserve this issue for appeal. United States v. Behler, 14 F.3d 1264,
1268 (8th Cir.), cert. denied, 115 S. Ct. 419 (1994). "Accordingly,
[Wallingford] is entitled to a new trial only if the district court
committed plain error resulting in a manifest injustice." Id. Here, we
find no plain error. Wallingford's reliance on Remmer v. United States,
347 U.S. 227 (1954), is misplaced. In Remmer, the Supreme Court held that
"[in] a criminal case, any private communication, . . . directly or
indirectly, with a juror during trial about the matter pending before the
jury is, for obvious reasons, deemed presumptively prejudicial." Id. at
229. However, "[t]he presumption of prejudice does not apply unless the
extrinsic contact relates to 'factual evidence not developed at trial.'"
United States v. Blumeyer, 62 F.3d 1013, 1016 (8th Cir. 1995) (quoting
United States v. Cheyenne, 855 F.2d 566, 568 (8th Cir. 1988)), cert.
denied, 116 S. Ct. 1263 (1996). Here, there is no presumption of prejudice
because, as the district court found, the "off-hand remark" did not refer
to the factual evidence at the trial. See id. at 1016 (jury foreman's
hypothetical question to an outside attorney was not presumptively
prejudicial because it did not relate to substantive matter in case).
Moreover, Wallingford did not prove actual prejudice; nor do we think he
could. Indeed, "[i]n context, we do not believe that any reasonable person
could interpret the [comment] to be anything other than a casual" non-
specific remark. United States v. Day, 830 F.2d 1099, 1104 (10th Cir.
1987) (no
-5-
prejudice arising from government's investigating agent and witness's
casual remarks to juror during restroom break).2 See also United States
v. Richmann, 860 F.2d 837, 839 (8th Cir. 1988) (alleged comment by juror
to witness was harmless, inter alia, because it was "beneficial to
[defendant] and detrimental to the government") (overruled on other grounds
by United States v. Covos, 872 F.2d 805, 809-10 (8th Cir.), cert. denied,
493 U.S. 840 (1989)), cert. denied, 490 U.S. 1089 (1989); United States v.
Castello, 830 F.2d 99, 101 (7th Cir. 1987) ("harmless contact between a
juror and a security officer is not grounds for reversal") (per curiam).
Accordingly, we affirm the judgment of the district court.3
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
2
In Day, 830 F.2d at 1105, the court applied the Remmer
presumption of prejudice because the contact was between a person
associated with the case and a juror, but found that the government
had overcome the presumption of prejudice and defendants had failed
to demonstrate actual prejudice.
3
Wallingford has submitted a pro se brief but has not moved
for leave to file the brief. Even if he had moved to file the
brief, we would deny the motion. "Generally it is Eighth Circuit
policy to refuse to consider pro se filings when a party is
represented by counsel." United States v. Blum, 65 F.3d 1436, 1443
n.2 (8th Cir. 1995), cert. denied, 116 S. Ct. 1435 (1996). We find
no reason to depart from the policy in this case.
-6-