United States v. Persico

MEMORANDUM AND ORDER

WEINSTEIN, Chief Judge.

Alphonse Pérsico was convicted of various crimes in connection with extortionate extensions of credit. 18 U.S.C. §§ 2, 892, 894. The presentence report indicated that he was a senior member of a branch of organized crime, a contention he contested. In order to determine the facts, a “Fatico hearing” was commenced. See United States of America v. Fatico II, 603 F.2d 1053, 1057 (2d Cir. 1979) (this type of sentencing hearing termed a “Fatico hearing”). After the government had completed its direct examination of its first witness, the proceedings were adjourned at the request of defendant to permit him time to gather further evidence. Pérsico failed to appear on the adjourned date and he is now a fugitive.

Rule 43 of the Federal Rules of Criminal Procedure provides that the “defendant shall be present . . .at the imposition of sentence.” There are no exceptions. See, e. g., 8B Moore’s Federal Practice § 43.02(2) (2d ed. 1980) (defendant has no power to waive presence at imposition of sentence in .felony ease). This is a higher standard of due process than that required by the federal constitution. Compare United States v. Brown, 456 F.2d 1112, 1114 (5th Cir. 1972) (a defendant in a federal prosecution “must be present at sentencing”) with Byrd v. Hopper, 537 F.2d 1303 (5th Cir. 1976) (sentencing of absent defendant by state in compliance with state law not a denial of due process). See also, e. g., People v. Stroman, 36 N.Y.2d 939, 373 N.Y.S.2d 548, 335 N.E.2d 853 (1975); Root v. Kapelman, 67 A.D.2d 131, 136, 414 N.Y. S.2d 707, 710 (1st Dept.1979) (section 380.40 of New York’s Criminal Procedure Law permits sentencing defendant in absentia). Policy considerations support this heightened level of protection. See Note, Procedural Due Process at Judicial Sentencing For Felony, 81 Harv.L.Rev. 821, 830-833 (1968). Nevertheless, there have been instances in this and other district courts where special circumstances were thought by the cotírt to warrant a sentence in absentia despite the mandatory language of Rule 43. This sub rosa practice may suggest the need for reconsideration by rule-making bodies of the desirability of affording the sentencing court some discretion.

Although Rule 43 does not address the question of whether the defendant must be present at any sentencing proceedings or hearings conducted prior to the sentencing itself when he voluntarily absents himself, proceeding with the hearing without the prospect of actually imposing a sentence serves no purpose. Were it not for Rule 43 the court would have completed the hearing in a truncated form since the witnesses might be unavailable when the defendant is apprehended. The defendant would then have been sentenced in absentia for general deterrence purposes. The hearing is adjourned without date pending the apprehension of the defendant.

So ordered.