United States v. Joel Beltran-Nunez

716 F.2d 287, 1983 U.S. App. LEXIS 16647
CourtCourt of Appeals for the Fifth Circuit
DecidedSeptember 22, 1983
Docket82-1440
StatusPublished
Cited by39 cases

This text of 716 F.2d 287 (United States v. Joel Beltran-Nunez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Joel Beltran-Nunez, 716 F.2d 287, 1983 U.S. App. LEXIS 16647 (5th Cir. 1983).

Opinions

TATE, Circuit Judge:

Joel Beltran-Nunez challenges his convictions for conspiracy to transport illegal aliens into the United States in violation of 18 U.S.C. § 371 and 8 U.S.C. § 1324(a)(4) and transporting illegal aliens within the United States in violation of 8 U.S.C. § 1324(a)(2). On appeal, Beltran contends that his convictions must be set aside since the trial, except for the selection of the jury, was held in his absence and since he was denied effective assistance of counsel. Because we feel that our decision in United States v. Benavides, 596 F.2d 137 (5th Cir. 1979) so requires with regard to Beltran’s first contention, we vacate his convictions and remand for a new trial, and do not reach the question of effective assistance of counsel.

On April 25,1978, agents of the Immigration and Naturalization Service arrested Beltran and two other men outside of an El Paso hotel in which thirteen illegal aliens were found. Beltran was charged with one count of conspiracy to transport illegal aliens into the United States and four counts of transporting and moving illegal aliens within the United States. Beltran requested a jury trial on these charges. On July 13, 1978, the jury was selected in the defendant’s presence and instructed to return to court on July 18, 1978, the date on which Beltran’s trial was scheduled to take place. Although the defendant was not present in court when the judge and his attorney set the trial date, the record indicates that he was present when the court informed the jury that his trial would be held on July 18,1978. Thus, we will assume that the defendant knew that he should return to court on July 18, 1978.1

On the date of the trial, the jury, the attorneys and the witnesses appeared in court, but Beltran did not. Beltran’s attorney informed the court that the defendant’s family had been present in the court, but that he could not locate the defendant. The judge stated that he intended to proceed with the trial in Beltran’s absence, and that he would revoke the defendant’s bond if he did not appear in court prior to the [289]*289first break. Beltran’s attorney did not object to this procedure.2

The trial proceeded and was concluded by a jury verdict that same afternoon. The government called six witnesses in support of its case. Beltran’s attorney cross-examined five of these witnesses, but did not call any witnesses for the defense. After the testimony of five of the government’s witnesses, the court again inquired as to the defendant’s whereabouts in the following exchange:

THE COURT: ... Now, the defendant is not here yet?
MR. REY: No, Your Honor.
THE COURT: Do you have anything further that you want to tell me about the status of the defendant?
MR. REY: I just now spoke to his wife, and she just — he was in front of my office, said he was going to go to his work to pick up some workers, and that was it. She said if she had a car right now, she would go over to where he worked to see if he’s gone there. He was here, he was dressed well. I saw him this morning, dropped his family off.
THE COURT: The Court will find that the defendant was fully aware of trial, that as a matter of fact, late yesterday afternoon, it was contemplated that the defendant might, in fact, plead guilty to all five counts of the indictment, but that he informed his attorney that he would not. The Court will find that his family is present in the courtroom, and the defendant has voluntarily absented himself, and I will here and now revoke the bond heretofore allowed to Mr. Joel BeltranNunez. I will order that arrest — a bench warrant be issued for his arrest, and that the new bond be made in the amount of $100,000 cash or corporate surety.

The only other reference in the record to the defendant’s absence was made by the court just prior to its instructions to the jury. The judge asked Beltran’s attorney if he recalled the court making a finding on the record that Beltran “had voluntarily absented himself” from the trial. In response to this inquiry, the defendant’s attorney assured the judge that he had made such a finding.3 The jury found the defendant guilty on all five counts and the court set a date for sentencing.

The defendant was not sentenced, however, until he surrendered to the authorities some four years later. The court imposed a sentence of five years in prison on each of the five counts, to be served concurrently, and the defendant appealed.

Fed.R.Crim.P. 43(b) provides that a district court may proceed with a trial when a defendant who is initially present “voluntarily absents himself after the trial has commenced.” Fed.R.Crim.P. 43(b); see Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973) (upholding the constitutionality of Rule 43 as it then read). In this case, the district court’s finding that Beltran voluntarily absented himself from the trial was supported by the evidence.

[290]*290We have held, however, that this finding alone will not suffice. In United States v. Benavides, 596 F.2d 137 (5th Cir.1979), we explained that a trial court must consider other factors before taking the severe step of holding a criminal trial in the defendant’s absence:

The finding that the defendants’ absence was voluntary should not have abruptly ended the court’s inquiry. In Smith v. United States, 5 Cir.1966, 357 F.2d 486, 490, we noted that the court has “only a narrow discretion” in deciding whether to proceed with a trial when the defendant is voluntarily in absentia because the right to be present at one’s own trial must be carefully safeguarded. Compare United States v. Davis, 7 Cir. 1973, 486 F.2d 725, 727, cert. denied, 1974, 415 U.S. 979, 94 S.Ct. 1569, 39 L.Ed.2d 876.
While the Fifth Circuit has not had occasion to discuss further how the trial court should exercise that narrow discretion, a test was most articulately stated by the Second Circuit in United States v. Tortora, 2 Cir.1972, 464 F.2d 1202, 1210, cert. denied, 409 U.S. 1063, 93 S.Ct. 554, 34 L.Ed.2d 516:

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Bluebook (online)
716 F.2d 287, 1983 U.S. App. LEXIS 16647, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-joel-beltran-nunez-ca5-1983.