Appeal from a judgment of the United States District Court for the Southern District of New York (Metzner, J.), convicting appellant, after a jury trial, of distributing heroin in violation of 21 U.S.C. §§ 812, 841(a)(1), 84I(b)(1)(C) and 845a(a) and 18 U.S.C. § 2. Appellant argues that his right to be present at all stages of his trial was violated. Reversed and remanded for a new trial. Judge Mahoney concurs in a separate opinion.
Van Graafeiland, Altimari and Mahoney, Circuit Judges.
Defendant-appellant Martin Fontanez appeals from a judgment of the United States District Court (Judge Charles M. Metzner) convicting him after a jury trial of distributing three glassine envelopes of heroin within 1,000 feet of a school in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(C) and 845a(a) and 18 U.S.C. § 2. On this appeal, Fontanez contends that the district court, by allowing a read-back of testimony and giving additional instructions to the jury in his absence, violated his right to be present at all stages of his trial. We agree.
For the reasons stated below, we reverse the judgment of conviction against Fontanez and remand to the district court for a new trial.
On June 7, 1988, Martin Fontanez was arrested for allegedly aiding and abetting Daniel Hernandez in the sale of thirty dollars worth of heroin. Earlier that day, an undercover New York City police agent purchased three glassine envelopes of heroin with thirty dollars in marked money from a man on the corner of Clinton and Henry Streets in Manhattan. After the purchase, the undercover agent radioed a description of the man who sold the drugs and of another who acted in the role of a "steerer," one who attracts customers by calling out the name of the drug. Several minutes later, a police backup team spotted Fontanez on Jefferson Street around the corner from Henry Street, and based on the undercover agent's description identified him as the steerer. Shortly thereafter, Hernandez was apprehended on Henry Street and found to be in possession of the marked money.
The trial against Fontanez as a sole defendant commenced on October 12, 1988 with the impaneling of the jury. The following day testimony was received, summations delivered and jury deliberations initiated. Up to this point, Fontanez was present at all stages of his trial. Fontanez testified on his own behalf denying he had acted as a steerer for Hernandez or ever spoken to the undercover police agent.
At approximately 10:40 on the morning of October 14, 1988, Fontanez was taken into police custody in connection with a crime unrelated to that for which he was being tried. It was not until 12:30 p.m. on the same day that the trial was reconvened and jury deliberations continued. The court received a note from the jury at 1:50 p.m. requesting a read-back of certain testimony. Defense counsel immediately objected to "taking anything in the absence of the defendant." The government agreed with the defense position indicating to the court that Fontanez was in police custody and would return to the trial that afternoon. After consulting with the government appellate unit, the government attorney advised the court not to proceed without a waiver. Then, the court, over defense counsel's objection and against the government's advice, allowed the read-back to the jury explaining that Fontanez was "unavoidably detained." When defense counsel noted a specific objection, Judge Metzner responded: "I will make a finding that the defendant does not have to be present during proceedings if they consist solely of reading back testimony to a jury during their deliberations."
At 3:00 p.m., the jury informed the court that it was unable to reach a verdict. The court proposed giving a modified Allen charge to the deadlocked jury. See Allen v. United States, 164 U.S. 492, 41 L. Ed. 528, 17 S. Ct. 154 (1896). The government attorney apprised the court that Fontanez was about to be escorted to the courtroom. Without waiting for the defendant, the court delivered the Allen charge. Following the charge as the jurors were exiting for further deliberations, the defendant, escorted by federal marshalls without restraints, entered the courtroom. Defense counsel once more noted a specific objection. Observing that Fontanez was on his way to the courtroom when the Allen charged commenced, defense counsel remarked that "a five minute delay would not have been substantial."
At 5:35 p.m., the jury returned a guilty verdict against Fontanez. On December 20, 1988, Fontanez was sentenced to a two year term of imprisonment to be followed by a six year term of supervised release. Fontanez is presently incarcerated.
It has long been settled that an accused enjoys a right both at common law and pursuant to the sixth amendment's confrontation clause to be present at all stages of trial. See Illinois v. Allen, 397 U.S. 337, 338, 25 L. Ed. 2d 353, 90 S. Ct. 1057 (1970); Lewis v. United States, 146 U.S. 370, 373, 36 L. Ed. 1011, 13 S. Ct. 136 (1892); Schwab v. Berggren, 143 U.S. 442, 448, 36 L. Ed. 218, 12 S. Ct. 525 (1892); United States v. Hernandez, F.2d , (2d Cir. 1989); United States v. Pastor, 557 F.2d 930, 933 (2d Cir. 1977). It is also well settled that under the due process clauses of the fifth and fourteenth amendments a defendant must be allowed to be present at his trial "to the extent that a fair and just hearing would be thwarted by his absence." See Kentucky v. Stincer, 482 U.S. 730, 745, 96 L. Ed. 2d 631, 107 S. Ct. 2658 (1987) (quoting Snyder v. Massachusetts, 291 U.S. 97, 108, 78 L. Ed. 674, 54 S. Ct. 330 (1934)); United States v. Gagnon, 470 U.S. 522, 526, 84 L. Ed. 2d 486, 105 S. Ct. 1482 (1985), Faretta v. California, 422 U.S. 806 n. 15, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975); United States v. Crutcher, 405 F.2d 239, 242 (2d Cir. 1968), cert. denied, 394 U.S. 908, 89 S. Ct. 1018, 22 L. Ed. 2d 219 (1969). It is beyond dispute that a judge's instructions to a jury constitute an integral part of the trial. See Shields v. United States, 273 U.S. 583, 588-89, 71 L. Ed. 787, 47 S. Ct. 478 (1927); United States v. Glick, 463 F.2d 491, 493 (2d Cir. 1972); Wade v. United States, 142 U.S. App. D.C. 356, 441 F.2d 1046, 1049-50 (D.C.Cir. 1971).
The right to be present at all stages of one's trial constitutes a foundational principle underpinning the entire law of criminal procedure. Cf. 6 M. Rhodes, Orfield's Criminal Procedure under the Federal Rules §§ 43:3, 43:13 (2d ed. 1987). Congress, in framing Rule 43 of the Federal Rules of Criminal Procedure, "explicitly intended to codify existing law concerning a defendant's constitutional and common law rights to be present throughout trial." United States v. Alessandrello, 637 F.2d 131, 138 (3d Cir. 1980), cert. denied, 451 U.S. 949, 68 L. Ed. 2d 334, 101 S. Ct. 2031 (1981) (citing Fed.R.Crim.P. 43, 1946 Advisory Committee Note, para. 1; and 8B ...