United States District Court, D. Connecticut
ORDER
Janet
C. Hall United States District Judge
On
August 7, 2018 the Grand Jury returned an Indictment against
Carlos Delgado (“Delgado”). Indictment (Doc. No.
1). An Arraignment was held on August 29, 2018, and Delgado
pled not guilty on Counts 1-5 of the indictment. (Doc. No.
30). On August 21, 2019, the Grand Jury returned a Second
Superseding Indictment (Doc. No. 138), on which Delgado was
arraigned on August 28, 2019 (Doc. No. 140).
Jury
Selection in this case is currently scheduled for December 2,
2019, having been continued several times. The Pretrial
Conference is scheduled for next Friday, November 22, 2019,
before the undersigned. (Doc. No. 190). In addition, a
hearing pursuant to Missouri v. Frye, 132 S.Ct. 1399
(2012), is scheduled for November 21, 2019, before Magistrate
Judge Sarah A. L. Merriam. (Doc. No. 207).
On
November 13, 2019, defense counsel informed the court and the
government that Delgado will not agree to be transported to
court on November 21 and November 22, 2019. Delgado informed
his counsel that he fell off his bunk at the Wyatt Detention
Facility in August, that he has not received adequate medical
attention, and that he will not agree to be transported to
court until his medical condition has been addressed. The
court spoke to the United States Marshal Service and was
informed that the Marshal Service had obtained records of
Delgado's injury and medical treatment. The court has
docketed under seal copies of the records the Marshal Service
was able to obtain. See Exhibits (Doc. No. 221). On
review, those records show that Delgado has received medical
attention. The court also notes that this is not the first
time Delgado has refused to appear before the court. See,
e.g., Order (Doc. No. 164) (noting that Delgado did not
attend a hearing on October 8, 2019, in order to observe a
Jewish holiday); Order (Doc. No. 168) (noting that Delgado
did not attend a hearing on October 15, 2019, for the same
reason).
Delgado
has the right, pursuant to the Sixth Amendment of the United
States Constitution, to be present at his criminal trial;
further, due process protects his right “to be present
in his own person whenever his presence has a relation,
reasonably substantial, to the fullness of his opportunity to
defend against the charge.” Grayton v. Ercole,
691 F.3d 165, 170 (2d Cir. 2012) (quoting Snyder v.
Massachusetts, 291 U.S. 97, 105-06 (1934)); see
also Fed. R. Crim. P. 43 (requiring the defendant's
presence at all stages of trial). Delgado can waive his right
to be present at trial, but only if he does so
“knowingly and voluntarily.” Cuoco v. United
States, 208 F.3d 27, 30 (2d Cir. 2000). For Delgado to
waive his right to be present at later court proceedings
“knowingly and voluntarily, ” this court must
inform him of his rights and the consequences of his choice
to waive them. It can only do so if Delgado appears. The
court intends to discuss Delgado's rights with him at the
Pretrial Conference next week; thus, it will require
Delgado's presence. Further, the court notes that it has
now been over a year since Delgado's first arraignment
and the court has, thus far, granted four continuances.
The
court has the power to order the United States Marshal
Service to take Delgado into custody, using reasonable force,
and deliver him to the courthouse. See, e.g., Order
(Doc. No. 40), U.S. v. Page, No. 17-cr-279 (AWT) at
3, 4-5 (ordering United States Marshal Service to use
reasonable force as necessary to bring defendant to
arraignment). In other circumstances, a court might find a
party unwilling to appear in contempt and order him held in
custody until he became willing to comply with the
court's orders. Here, such a sanction would be
“meaningless, ” as Delgado is already in custody.
Id. at 4-5. In such cases, other courts have found
it appropriate to direct the United States Marshal Service to
deliver a defendant to the courthouse using “such
reasonable force as may be necessary.” Id. at
6; see also Appeal of Maguire, 571 F.2d 676, 677
(1st Cir. 1978) (ordering production of an incarcerated
suspect at a Grand Jury lineup).
Delgado
is advised that, should he fail to attend the Frye
hearing on November 21, the court will issue an order
directing the Marshal Service to take him into its custody,
using reasonable force if necessary, and deliver him to the
United States District Court, District of Connecticut, on
November 22, 2019, for the Pretrial Conference before the
undersigned. That Order will direct that the United
States Marshal Service may seek the assistance of staff of
the Wyatt Detention Facility as necessary to execute that
Order. The court reminds Delgado that a person who
“forcibly assaults, resists, opposes, impedes,
intimidates, or interferes with any person . . . while
engaged in or on account of the performance of official
duties” may be charged with a federal criminal offense.
18 U.S.C. §111(a)(1).
A copy
of this Order shall be served on Delgado, in person, by a
Deputy United States Marshal, at the Wyatt Detention Facility
as soon as reasonably possible, but no later than 5 p.m. on
Monday November 18, 2018.
SO
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