Sentence in absentia upheld

Listen to this article

The Seventh Circuit on Nov. 8 affirmed the sentence of a defendant sentenced in abstentia. However, the court declined to adopt a specific framework for considering the merits of challenges to in abstentia sentencings in future cases.

In December 2005, Lahbib Achbani pleaded guilty in federal court to making and uttering a counterfeit check, in violation of 18 U.S.C. 513(a), after he manufactured a $100,000 check, deposited it and withdrew funds to pay off various debts.

Prior to entering the plea, Achnabi had assisted in a government investigation that led to the recovery of nearly $2 million in stolen goods and the filing of criminal charges against others. The government had anticipated filing a motion for a sentence below the guidelines because of Achbani's substantial assistance.

In February 2006, however, the government discovered that Achbani had passed additional counterfeit checks after being indicted, and informed defense counsel that it did not believe he was entitled to credit for acceptance of responsibility.

Achbani then disappeared before his May sentencing, and the district court postponed the hearing several times while the government searched for him.

Sentenced in Abstentia

Achbani was ultimately sentenced in abstentia in August, after the government presented evidence that Achbani had fled to Austria in April using a Moroccan passport.

Achbani appealed, but the Seventh Circuit affirmed in a decision by Judge Kenneth F. Ripple.

The court began with a review of Rule 43, which, prior to 1995, only allowed for trial in abstentia, but not sentencing.

No prior Seventh Circuit case interprets when a defendant has made himself "voluntarily absent" for sentencing, although cases interpret Rule 43 in the trial context. In light of the amendment, and the identical language for the two situations, the court interpreted the 1995 amendment to indicate Congressional intent that the standards be the same.

No Error

Applying that standard — whether the trial court has indulged every reasonable inference and "serious question" that the absence is involuntary — the court concluded that the district court did not err.

The court found that the government's evidence of flight to Austria ruled out any "serious" possibility that Achbani was involuntarily absent due to death, hospitalization or legal custody. In addition, the court noted his strong motive for flight after the government discovered his ongoing criminal activity.

However, the court declined to adopt any rule for whether a district court should nevertheless refrain from sentencing a defendant in abstentia due to conflicting interests between the defendant and public.

The court noted that several cases (from the trial context) hold that, even when a defendant is voluntarily absent, in abstentia proceedings should be stayed unless the public interest in proceeding clearly outweighs the defendant's interest in being present.

U.S. v. Watkins, 983 F.2d 1413, 1419 (7th Cir. 1993); U.S. v. Davis, 61 F.3d 291, 302 (5th Cir. 1995); and U. S. v. Bradford, 237 F.3d 1306, 1312-13 (11th Cir. 2001).

Achbani argued that his interest in being present outweighed the public's interest in proceeding, because he could not review with counsel the newly discovered criminal activity.

However, the court declined to adopt the "public interest test" used in the trial context, because it concluded that, even if it were to adopt such a test, Achbani's interest in being present would not outweigh the public's interest in finality.

Accordingly, the court affirmed.

Before concluding, however, the court added in dicta that another circuit court has held that a defendant who is voluntarily absent from sentencing waives the right to review the presentence report. U.S. v. Jordan, 216 F.3d 1248, 1250 (11th Cir. 2000), and that the district court in this case did not consider the additional crimes in calculating his sentence.

Analysis

Despite the result in this case, defense attorneys should continue to object to sentencing in abstentia, especially now that the sentencing guidelines are no longer mandatory.

However, counsel will have to make a better argument than that the defendant was denied his opportunity to object to allegations in the presentence report.

If squarely presented, the Seventh Circuit's own precedents and reasoning in the case at bar suggest that a district court must weigh the relative burdens that would be imposed on the defendant and the government.

The governing case in the circuit when the defendant is absent from trial is U.S. v. Watkins, 983 F.2d 1413 (7th Cir. 1993). There, the court held that it must consider three factors on appeal: (1) whether the absence is voluntary; (2) the public interest; and (3) whether the error is harmless. Id., at 1419.

More specifically, in regards to the second factor the court wrote that it must consider, "the likelihood that the trial can take place with the defendant present, the difficulty of rescheduling, and the burden on the government and inconvenience to jurors of having to undertake two trials, particularly in a multiple defendant case." Id.

In the case at bar, the court found that the factor one analysis is the same whether the defendant absents himself from trial or sentencing. There is little reason for factor two to be treated any differently at sentencing than at trial

Proceeding In Abstentia

If anything, factor two should cause courts to be less willing to proceed to sentencing in abstentia than to proceed with trial: it is easier to reschedule a sentencing than a trial; there are no jurors to consider at all; and the burden on the government is lower.

Language from the Eleventh Circuit in U.S. v. Jordan, 216 F.3d 1248 (11th Cir. 2000), which the court cites for support in dicta, likewise provides no basis for wholly disregarding the balance between the interests of the public and the defendant before proceeding in abstentia.

The facts in Jordan are, for all relevant purposes, identical to the case at bar: the defendant was convicted, and fled before sentencing after other criminal conduct came to light.

Jordan can be distinguished, however, because Jordan's argument on appeal was that he had an absolute right to ten days to review the presentence report. The Eleventh Circuit rejected that argument, finding that it would enable a defendant to "nullify Rule 43" by his own misconduct.

Balancing Interests

Other language in that same paragraph, however, suggests that a court should still balance the relative interests of the public and the defendant.

The court wrote, "information pertinent to sentencing could become stale and witnesses could become unavailable, thus allowing a defendant to impair — by his own misconduct — the court's ability to sentence him properly. See Fed.R.Crim.P. 43 advisory committee note ('Delay in conducting the sentencing hearing under such circumstances may result in difficulty later in gathering and presenting the evidence necessary to formulate a guideline sentence.')." Id., at 1251.

The court continued, "The approach advocated by Defendant — unrestrictedly delaying imposition of
sentence until the defendant has returned to review his PSI — would subject accuracy and reliability in sentencing to a host of uncertainties: whether or when a defendant would return or be apprehended, whether the pertinent witnesses would be then available, and whether they would still remember the events at issue, among other things. This delay and uncertainty would create an undue burden for the government, and the disruption of finality would interfere with the operation of the judicial process." Id.

All of these considerations are of utmost importance prior to conviction, when the defendant absents himself from trial. However, in many sentencing hearings, these factors won't come into play.

Considerations Based on Victim

Consider the case at bar. The opinion does not say who was actually defrauded. If the $100,000 that was stolen was the life savings of a widow, and the money could possibly be recovered once sentence is entered, then, obviously, there would be a strong public interest in proceeding in abstentia, and sentencing should proceed.

Suppose, however, that the defrauded victim was a bank or insurance company, and the money has been squandered and is not recoverable. Unless there is a legitimate dispute as to the amount of loss, no one would appear in court at sentencing to speak on behalf of the victim, regardless of whether it occurs in abstentia or whenever the defendant happens to be recaptured.

If the amount of loss is not in dispute, the victim will submit a document to the probation officer preparing the presentence report, and that is all the court will rely on at sentencing, regardless of when that may occur.

Without question, "the disruption of finality would interfere with the operation of the judicial process," but that would be the extent of the burden in some cases.

Arguably, that is an insufficient basis to proceed in abstentia, because, if that is all that is required, then the second factor set forth in Watkins ceases to be relevant, because then sentencing should always proceed in abstentia when a defendant has voluntarily absented himself from sentencing.

As a result, unless there is a specific burden on the government from delay, apart from finality and disrespect for the judicial process generally, defense attorneys will still have a legitimate basis to object to sentencing in abstentia, notwithstanding the court's decision in the case at bar.

However, an attorney making such an argument will have to do more than make a general argument that the defendant's right to review the presentence report would be impaired.