United States v. Carl Jerry London

PITTMAN, District Judge:

The appellant Carl Jerry London absconded in late 1979 during the jury trial that began in September, 1979 and concluded in February, 1980 of twelve defendants involved in a marijuana smuggling organization known as “Black Tuna”. See United States v. Phillips, 664 F.2d 971, 985 n. 1 (5th Cir.1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1983). The twelve were charged in a one-hundred page superseding indictment containing thirty-six counts, covering the period from August, 1974 to April, 1978. Following his escape, London’s trial was completed in absentia.¹ He was convicted of conspiracy to violate the Racketeer Influenced and Corrupt Organization Act (RICO), 18 U.S.C. § 1962(d) (1976), and of perjury before a grand jury, 18 U.S.C. § 1623 (1976). The convicted co-defendants sought appellate review;, this court affirmed their convictions in Phillips.

London was a fugitive until nearly three years after trial, when he was captured and returned to Florida for sentencing. In this appeal London challenges the sufficiency of the evidence. The government moves that this court dismiss the appeal because London became a fugitive during the trial. For the reasons set forth below, the government’s motion is granted.

Appellate courts have dismissed appeals where the defendant escapes and remains fugitive subsequent to the filing of notice of appeal:

No persuasive reason exists why this Court should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints upon him pursuant to the conviction. While such an escape does not strip the case of its character as an adjudicable case or controversy, we believe it disentitles the defendant to call upon the resources of the Court for determination of his claims.

Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970) (per curiam). In United States v. Holmes, 680 F.2d 1372 (11th Cir.1982) (per curiam), cert. denied, _ U.S. _, 103 S.Ct. 1259, 75 L.Ed.2d 486 (1983), this court, guided by Molinaro, held that where the defendant fled after conviction, but before sentencing, he likewise “waives his right to appeal from the conviction unless he can establish that his absence was due to matters completely beyond his control.” Id. at 1374.

This case differs from Holmes principally in the fact that London fled during the trial rather than after the trial, a more aggravating circumstance under the rationale of Molinaro. The rationale of Holmes guides the decision in the present case to the same' legal conclusion. It would be anomalous to hold that Holmes lost his right to appeal by fleeing after conviction but that London retains his right to appeal because he fled during trial. In neither situation has a final, appealable judgment been entered from which an appeal could be taken. In Holmes the escape disrupted the sentencing process and appellate review; in the present case the defendant disrupted a prolonged trial and flaunted his disregard for the orderly court procedures for the determination of whether he was guilty or not guilty.

Foremost among the myriad problems caused by a defendant who absconds during trial is the question of whether to declare a mistrial or to proceed with the trial of the defendant in absentia. The trial court’s discretion to proceed in absentia under Fed. R. Crim.P. 43 is very narrow. See United States v. Benavides, 596 F.2d 137 (5th Cir. 1979).

Whether the trial will proceed will depend upon the trial judge’s determination of a complex of issues. He must weigh the likelihood that the trial could soon take place with the defendant present; the difficulty of rescheduling, particularly in multiple-defendant trials; the burden on the Government in having to undertake two trials, again particularly in multiple-defendant trials where the evidence against the defendants is often overlapping and more than one trial might keep the Government’s witnesses in substantial jeopardy.

United States v. Tortora, 464 F.2d 1202, 1210 (2d Cir.), cert. denied, 409 U.S. 1063, 93 S. Ct. 554, 34 L.Ed.2d 516 (1972), quoted in Benavides, 596 F.2d at 139. For this reason, the situation created by a defendant who voluntarily absents himself during trial is even more problematic than those encountered when the defendant absconds after trial has concluded but before sentencing.

The conclusion we reach today in no way impairs the right of a defendant to appeal sentencing infirmities or the decision of a trial court to proceed in absentia. These questions are not raised by this appellant.

For the reasons set forth herein, the judgment of the district court is hereby AFFIRMED.

1 . Under Fed.R.Crim.P. 43(b), a defendant may be tried in absentia when he “voluntarily absents himself after the trial has commenced.” The power to continue trial in this situation is not without limitations. See generally United States v. Benavides, 596 F.2d 137 (5th Cir.1979). The propriety of the present trial in absentia is not raised on this appeal.