United States v. David Shanks, Jr.

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-3628
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID L. SHANKS, JR.,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 18-CR-18 — William C. Griesbach, Judge.
____________________
SUBMITTED JUNE 9, 2020* — DECIDED JUNE 15, 2020
____________________
Before KANNE, SYKES, and BRENNAN, Circuit Judges.
PER CURIAM. David L. Shanks, Jr. did not attend his trial
for drug-distribution offenses, for which a jury found him
guilty and the district court entered a judgment of conviction.
* We have agreed to decide the case without oral argument because
the briefs and record adequately present the facts and legal arguments,
and oral argument would not significantly aid the court. Fed. R. App. P.
34(a)(2)(C).
2 No. 18-3628
Shanks challenges the judgment on two bases. First, he con-
tends that the district court did not comply with Rule 43 of
the Federal Rules of Criminal Procedure, which he argues re-
quires a defendant’s presence in a courtroom at the start of
trial. Shanks’s trial began before the judge and counsel at a
jail, not in a courtroom. Second, he argues that the court
clearly erred in finding that, through his disruptive conduct,
he knowingly and voluntarily waived his right to attend trial.
Because the district court permissibly began trial at the jail
and reasonably found that Shanks waived his right to attend
the remainder of his trial, we affirm.
I. BACKGROUND
While on supervised release for a prior drug crime, Shanks
was charged in January 2018 with participating in a drug-dis-
tribution conspiracy. The government charged that the con-
spiracy led to overdoses that resulted in a death and the seri-
ous bodily injury of two others. At an arraignment in Febru-
ary, counsel for Shanks reported that Shanks pled not guilty
and understood the charges. But a few days later, while de-
tained at Brown County Jail, Shanks fired that lawyer, and at-
torney Edward Hunt was appointed to serve as his new coun-
sel. Later, when the government filed a superseding indict-
ment, Shanks refused to enter a plea before a magistrate
judge. Instead, he challenged the court’s jurisdiction, denied
understanding the charges against him, and said that he
wished to be silent.
After his next arraignment, Shanks continued to question
the legitimacy of the criminal process. First, Shanks refused to
talk with Hunt and told him that Hunt did not speak for
Shanks, prompting Hunt to move to withdraw. Shanks told
No. 18-3628 3
the judge: “Mr. Hunt does not speak for me, I speak for my-
self.” The judge asked Shanks if he wanted to represent him-
self. Shanks responded, “I don’t understand how,” so the
judge did not grant Hunt’s motion to withdraw. At this hear-
ing, Shanks also demanded to know “what jurisdiction I’m
charged under.” The judge explained that he was in federal
court and charged for federal criminal violations, adding,
“You’ve been through the system before, don’t tell me you
don’t know what jurisdiction you’re in.” (In 2013, the same
judge imposed a 66-month sentence on Shanks for crack-co-
caine crimes.) After this hearing, a deputy U.S. marshal told
the judge that Shanks had said that he did not intend to attend
the trial. Shanks did not appear in federal court again.
At the final pretrial conference (which Shanks did not at-
tend), the judge anticipated that Shanks might refuse to be-
have at or attend trial. He noted that, under Federal Rule of
Criminal Procedure 43, Shanks could waive his right to re-
main in court if he became disruptive. The judge also consid-
ered matters of public interest: if Shanks said that he did not
want to attend trial, or threatened to disrupt proceedings if
brought to court, the judge would not order the U.S. marshals
to forcibly bring Shanks to court, for fear of injuring Shanks
or the marshals. Likewise, the judge decided against postpon-
ing the trial. The government had gathered over 50 witnesses,
including experts, from across the country for the trial to start
the next week, and the judge doubted that Shanks would im-
prove his attitude if trial were delayed.
To assess Shanks’s intentions, the judge issued an order
for Shanks to appear at trial. When a marshal attempted to
serve it on Shanks, Shanks refused to accept it.
4 No. 18-3628
Because Shanks refused to accept the trial summons, the
judge decided to come to Shanks to start the trial. The judge
understood Rule 43 to require a defendant’s initial presence
at trial before the defendant could waive the right to attend.
Therefore, the judge, counsel, and a court reporter planned to
begin the trial outside Shanks’s cell at the Brown County Jail.
It began on the morning of September 13, 2018, at the jail. Af-
ter the judge put on the record his efforts to bring Shanks to
court, Shanks denied understanding whatever the judge said
to him:
THE COURT: Mr. Shanks, you have indicated that you re-
fuse to come to your trial; is that still your position?
THE DEFENDANT: I never refused anything. I don’t un-
derstand these proceedings.
THE COURT: So you will come to your trial and attend your
trial; is that right?
THE DEFENDANT: I don’t understand what I have to come
to trial for.
THE COURT: You’re tried on a superseding indictment.
We’ve had the arraignment, you’ve gone over it with your
attorney, we’ve given you a copy of it.
THE DEFENDANT: I haven’t went over it with my attor-
ney. The magistrate judge read the indictment, but I did not
understand it. And I told the magistrate judge this at the
time he read it.
THE COURT: Well, there’s no mystery. These are charges
similar to others you’ve faced. You’re charged with conspir-
acy to distribute controlled substances, multiple delivery of
controlled substances and possession with intent to deliver
a controlled substance.
No. 18-3628 5
You’re also alleged to have—or it’s alleged that a death re-
sulted from one of the deliveries within the conspiracy and
that serious bodily injury or harm occurred as a result of
other deliveries.
Those are the charges you face. You understand that several
of the counts you’re facing carry mandatory life sentences.
Your attorney has been prepared to represent you.
After the judge explained the charges and possible penalties,
he asked Shanks, “Are you willing to come to court to attend
your own trial?” Shanks refused to answer that question, no
matter how many times the judge rephrased it:
THE DEFENDANT: I don’t understand those charges or the
allegations in the indictment.
THE COURT: Regardless of whether you understand them
or not, are you coming to your trial?
THE DEFENDANT: I don’t understand what I have to come
to trial for, sir.
THE COURT: You don’t need to understand them. If you
want to profess your lack [of] understanding, just come to
trial, we will take you to trial. Are you ready to go?
THE DEFENDANT: Your Honor, can someone please ex-
plain to me the nature of and cause of this action?
THE COURT: We’ve already explained it. It’s very clear.
You are charged with criminal violations of the federal law.
If you do not [] come to your trial, we will put shackles on
you and you will proceed to have a jury decide whether the
government has proven guilt beyond a reasonable doubt.
THE DEFENDANT: I still don’t understand the nature and
cause of this action or what jurisdiction you operate in.
THE COURT: Okay. I’m not concerned—if you want to pro-
fess your lack of understanding, that’s your right. No one
6 No. 18-3628
believes that you do not understand it. The question I’m
asking is, will you come to court? Can we bring you to
court?
THE DEFENDANT: I don’t understand what I have to come
to court for, sir.
THE COURT: You have to come to court for your trial.
THE DEFENDANT: My trial for what, sir?
THE COURT: For the crimes that I’ve already repeated to
you.
THE DEFENDANT: I don’t understand those crimes. I
never hurt anyone.
Finally, Shanks would not say if he would forcibly resist at-
tending court:
THE COURT: Are you going to fight us if we bring you to
court?
THE DEFENDANT: I don’t understand these charges, Your
Honor.
THE COURT: Okay. Let the record reflect that—well, the
record will reflect the defendant’s insistence that he doesn’t
understand and his refusal to answer the question of
whether he will willingly come to court and cooperate in his
trial. Will you come to court and cooperate in your trial?
THE DEFENDANT: I don’t understand what I have to come
to court for, Your Honor.
In total, the judge asked Shanks more than ten times if he
would attend trial cooperatively and received no reply. In
light of this behavior, and knowing that Shanks refused to ac-
cept the judge’s order to attend trial, the judge found that by
“disruptive conduct” Shanks had waived his right to attend
trial. To avoid harm to Shanks or others, the judge did not use
No. 18-3628 7
force to extract Shanks. The judge warned Shanks that by re-
fusing to come to court, he would be giving up his right to
testify on his own behalf, to which Shanks replied: “I have
given up nothing.” The judge also told Shanks that, though
the judge could not provide him with live video or audio of
the trial while he was in jail, if he changed his mind about
coming to court, the marshals would transport him there. Be-
fore this exchange ended, Shanks spoke off the record with
his counsel, Hunt. Hunt then met with the prosecutor, who
later told the court on the record that Shanks wanted to “res-
urrect a previously withdrawn offer” that the government
had made, but the government declined to do so.
Jury selection began later that day, and after his four-day
trial, Shanks was convicted of all but one charge. During the
trial, outside of the jury’s presence, the judge regularly asked
the marshals to report whether Shanks had changed his mind.
Each time, when jail staff asked Shanks if he was willing to
attend his trial, Shanks responded that he did not understand
why he needed to go to court. The judge instructed the jury
not to draw any inference from Shanks’s absence or his deci-
sion not to testify. At Shanks’s sentencing hearing, which
Shanks also did not attend, the judge sentenced him to multi-
ple life terms in prison.
II. ANALYSIS
On appeal, Shanks makes three arguments. We address
each in turn.
A. Criminal Rule 43
Shanks argues that the district court violated Rule 43 by
starting trial without his physical presence in a courtroom.
The government responds that Rule 43 was satisfied because
8 No. 18-3628
it does not require that a criminal trial start in a “courtroom.”
This court reviews legal questions such as these de novo. See
United States v. Bethea, 888 F.3d 864, 865–66 (7th Cir. 2018).
Rule 43 sets forth requirements about a defendant’s pres-
ence at trial and when he may waive that requirement. The
defendant “must be present” at “every trial stage,” Fed. R.
Crim. P. 43(a)(2), but one “who was initially present at trial”
may waive his right to be present “when the defendant is vol-
untarily absent after the trial has begun” or “when the court
warns the defendant that it will remove the defendant from
the courtroom for disruptive behavior, but the defendant per-
sists in conduct that justifies removal from the courtroom,”
Fed. R. Crim. P. 43(c)(1), (c)(1)(A), (c)(1)(C). The Rule does not
specify whether a defendant must be in a courtroom to be “in-
itially present” at trial. Notes to the Rules, however, observe
that “intangible benefits” come from “requiring a defendant
to appear before a federal judicial officer in a federal court-
room.” Fed. R. Crim. P. 43 advisory committee’s note to 2011
amendments.
The district court complied with Rule 43. After Shanks re-
fused to come to court, the federal judge came to him, with
counsel and a court reporter present. The judge thus created
at the jail—the only place that he could reliably meet
Shanks—the features of in-person presence in a federal court-
room. We have not previously addressed the question of
where a defendant must be physically present to satisfy Rule
43’s “initially present” requirement, but we have decided
when he must be present. “[T]he phrase ‘initially present at
trial’ in a jury trial must refer to the day that jury selection
begins,” not to the precise moment that the first prospective
juror enters the courtroom. United States v. Benabe, 654 F.3d
No. 18-3628 9
753, 771 (7th Cir. 2011). Shanks’s trial started (at the jail) ear-
lier the same day that jury selection began in court, so timing
was satisfied.
On the issue of where a trial may start, one circuit has held
that a trial may start where a defendant is initially present,
even if it is not a courtroom. In United States v. Sterling, 738
F.3d 228, 236 (11th Cir. 2013), Sterling, a combative defendant,
refused to enter the courtroom on the day of jury selection, so
the judge met him in an interview room. Citing Benabe, the
Eleventh Circuit ruled that the trial started in the interview
room (where Sterling had waived his right to attend trial any
further) on the same day that jury selection began later. Ster-
ling, 738 F.3d at 236–37. The court deemed it “absurd” to re-
quire a district court “to bring a combative defendant” into
the courtroom where he might create predictable problems
“with his own disruptive behavior.” Id. at 236.
We agree with our sister circuit’s reasoning and conclude
that Shanks’s physical presence before the judge at the jail sat-
isfied Rule 43’s “initially present” requirement. Although
Sterling came to a courthouse, and Shanks did not, that dif-
ference is immaterial. Both Shanks and Sterling received an
informed, face-to-face encounter with the trial judge, and they
both risked disrupting proceedings by entering the court-
room.
Thus, the judge adequately complied with Rule 43.
B. Constitutional Challenge
Shanks next argues that in two respects the district court
violated his Fifth and Sixth Amendment rights. First, he con-
tends that those amendments prohibited the court from start-
ing his trial at the jail. The Constitution says nothing about
10 No. 18-3628
whether trial must start in a courtroom. And, as already dis-
cussed, the district court complied with Rule 43, which
“builds on,” is “more demanding” than, and sets forth protec-
tions that are “more expansive” than those of the Constitu-
tion. Benabe, 654 F.3d at 771 (citing United States v. Gibbs, 182
F.3d 408, 436 (6th Cir. 1999)). Thus, because we conclude that
the judge complied with Rule 43 when he started the trial at
the jail, we need not conduct additional analysis to determine
whether the relevant constitutional requirements were met.
See generally United States v. Vargas, 915 F.3d 417, 420 (7th Cir.
2019) (federal courts should consider statutory and rule-based
arguments ahead of constitutional ones); see also Rehman v.
Gonzales, 441 F.3d 506, 508 (7th Cir. 2006) (“[C]onstitutional
contentions must be set aside until their resolution is una-
voidable.”).
Shanks’s second argument is fact-based. He contends that
that the district court violated his constitutional rights to at-
tend trial by unreasonably concluding, based on Shanks’s
conduct, that he impliedly waived his right to appear at trial.
But, as Rule 43 reflects, the Constitution allows criminal de-
fendants to waive—through their conduct—their right to re-
main present at trial. See Benabe, 654 F.3d at 768. And this
court reviews deferentially the district court’s finding that
through his conduct, Shanks impliedly waived his right to at-
tend his trial. See id. at 769. Specifically, we review for clear
error the court’s factual finding that waiver was knowing and
voluntary; we review for abuse of discretion the court’s con-
clusion that there was a controlling public interest to proceed
with trial in the defendant’s absence; and we review for harm-
lessness any error in those two decisions. Id.
No. 18-3628 11
Given the deferential standard of review, the court’s con-
clusion that Shanks waived his right to attend trial must be
upheld. To begin, before trial, Shanks refused to accept the
order compelling his attendance. Then, after trial started at
the jail, Shanks repeatedly refused to tell the judge if he would
attend trial cooperatively, instead protesting that he did not
understand the charges. And when the judge explained that
Shanks did not need to understand the charges to say if he
would come to court (where he could argue his lack of under-
standing), he still refused to answer and tried to resurrect a
dead plea offer.
The judge also considered the public interest before pro-
ceeding in Shanks’s absence. Id. (“The court must consider the
likelihood that the trial could take place with the defendant
present, the difficulty of rescheduling, the inconvenience to
jurors, and the burden on the government and others of hav-
ing to undertake two trials.”) The judge knew that more than
50 witnesses were waiting to testify, so the burden of resched-
uling was high, and the chance that Shanks would cooperate
was very low. In light of this and Shanks’s prior experience as
a federal criminal defendant, the judge properly found an im-
plied waiver of the right to attend trial. Cf. id. at 768–71 (de-
fendants’ “campaign of obstreperous interruptions and frivo-
lous legal arguments,” and refusal “to confirm that they
would behave respectfully in front of the jury” constituted
waiver).
C. Harmlessness
Finally, Shanks argues that his absence from the court-
room during the trial affected the “fundamental nature” of
the proceeding and is not subject to harmless-error review.
The government counters that any error was not structural
12 No. 18-3628
and was harmless. Because no error occurred, we need go no
further. But even if a technical Rule 43 violation occurred by
starting the trial at jail rather than at court, we agree with the
government that that error would be subject to harmless-error
review. See Benabe, 654 F.3d at 773–74.
Shanks relies on United States v. Thompson, 599 F.3d 595
(7th Cir. 2010), to contend that his absence from the jury al-
tered the fundamental nature of the trial, just as if a judge had
been absent from trial. Thompson involved a hearing to revoke
supervised release, and everyone was physically present in
court, except for the judge who appeared from Key West,
Florida, via video-conference, in violation of Rule 32.1(b)(2) of
the Federal Rules of Criminal Procedure. Id. at 599–601.
Thompson is unhelpful for two reasons. First, it establishes
a harmless-error standard, and Shanks has not argued how he
was harmed by his absence. For example, he does not argue
that any trial testimony was incorrect, nor does he proffer his
own counter testimony. Moreover, the judge instructed the
jury not to draw any adverse inference from Shanks’s ab-
sence, and he gave Shanks repeated chances to change his
mind and come to court. Second, Thompson is distinguishable.
Because the judge there used videoconferencing, the defend-
ant had no in-person appearance before that judge. See id. at
597, 601. Here, the trial judge, counsel, and the court reporter
all came to Shanks and appeared in his physical presence, so
Shanks received a live, face-to-face encounter with the judge.
Only then did the judge assess Shanks’s demeanor and find
that Shanks waived his right to attend the rest of the trial in
court.
No. 18-3628 13
III. CONCLUSION
Shanks’s absence from most of his trial violated neither
Rule 43 nor his constitutional rights. Shanks has also not
shown prejudice from his absence. We therefore AFFIRM.