Federal Rules of Criminal Procedure Violation – Rule 43

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7^th Circuit Court of Appeals

Case Name: United States of America v. Michael Stivers

Case No.: 20-1180; 20-2664

Officials: MANION, ST. EVE, and KIRSCH, Circuit Judges.

Focus: Federal Rules of Criminal Procedure Violation – Rule 43

Michael Stivers pled guilty to receiving, possessing, and distributing child pornography. At his sentencing hearing, the district court sentenced him to 300 months’ imprisonment. Because the parties disputed the restitution amount, the court deferred its restitution decision and allowed the parties to submit additional briefing on the issue. Stivers did not object to this course of action. Months later, once the briefs were submitted, the court entered a written order overruling Stivers’s objections to the government’s proposed restitution calculation and ordering Stivers to pay $3,000 in restitution.

On appeal Stivers maintains that the district court violated Federal Rule of Criminal Procedure 43 by ordering restitution in his absence. Rule 43(a)(3) provides that “the defendant must be present at …sentencing.” From that language, Stivers infers that a criminal defendant must be present when a court orders restitution, on the theory that restitution is part of a sentence. See United States v. Johnson, 934 F.3d 716, 719 (7th Cir. 2019).

Stivers’s supplemental arguments do not alter our conclusion that Rule 43(a)(3) is inapplicable here. To the extent Stivers contends that § 3553(c) creates an ambiguity in § 3664(c), we disagree. Section 3664(c) clearly suspends the operation of Rule 43(a)(3) to restitution orders under that section. Section 3553(c) says nothing about Rule 43, so it does not create any ambiguity as to whether § 3664(c) supersedes the rule. See Jennings v. Rodriguez, 138 S. Ct. 830, 836 (2018) (observing that the constitutional-avoidance canon applies only “when statutory language is susceptible of multiple interpretations”). To the extent Stivers now relies on § 3553(c) and the Constitution as independent grounds for relief, we do not consider his arguments. In his original appellate briefing, Stivers relied exclusively on Rule 43(a)(3). Our request for supplemental briefing on whether Rule 43(a)(3) applies did not give Stivers license to transform his appeal and seek relief on grounds he never raised in his original briefing.

Because Rule 43(a)(3) does not apply in this case, Stivers is not entitled to relief for the district court’s supposed violation of it. We need not address the government’s argument that any Rule 43 violation was harmless error.

Affirmed

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Derek A Hawkins is Associate Corporate Counsel, IP at Amazon.