United States v. Navarro ( 1999 )

  •                      Revised March 24, 1999
                          FOR THE FIFTH CIRCUIT
                                No. 97-41162
              Appeals from the United States District Court
                    for the Eastern District of Texas
                                March 8, 1999
    Before POLITZ, EMILIO M. GARZA, and STEWART, Circuit Judges.
    POLITZ, Circuit Judge:*
         Samuel Pasqual Edmondson and Salvador Vargas
    Navarro appeal their convictions for conspiracy to
    possess methamphetamine with intent to distribute, in
    violation of 21 U.S.C. § 846 and 18 U.S.C. § 2, and for
    possession thereof with intent to distribute, in violation of 21
           Judge Politz announced the judgment of the court and
    delivered the opinion as to Parts I through V. Judge Emilio M.
    Garza delivered an opinion as to Part VI, joined by Judge
    Stewart, to which Judge Politz dissents.
    U.S.C. § 841(a)(1) and 18 U.S.C. § 2.     For the reasons assigned,
    we affirm all convictions and the sentences of Navarro, but
    vacate and remand for the resentencing of Edmondson.
           At about 2:00 a.m. on a morning in September 1996, a
    Sherman, Texas police officer stopped a car for failing to
    maintain a single lane.    Edmondson was driving the car, and
    Navarro and Guadalupe Plascencia Lopez were passengers.    The
    officer asked Edmondson for his license and proof of insurance.
    Edmondson, obviously nervous, provided title and proof of
    insurance, but stated that he did not have a driver’s license,
    giving the officer his Arkansas photo identification instead.
    Edmondson was instructed to step to the rear of the car and the
    officer wrote warning citations for his failure to maintain a
    single lane and for driving without a license.
           While writing the warnings, the officer questioned Edmondson
    about his occupation, the purpose of the trip, and the owner of
    the vehicle.    Conflicting responses aroused the officer’s
    suspicions and he asked Edmondson whether there were drugs in the
    car.    Edmondson stated that there were none and that the officer
    could look if he wanted.    The officer then returned to the car
    and questioned Navarro and Lopez whose responses conflicted with
    those of Edmondson.    In addition, Navarro repeatedly asserted
    that he did not speak English although he conversed at length in
    English with the officer.
         The officer then returned to Edmondson, gave him the
    citations and his documents, asked again whether there were drugs
    in the car, then asked Edmondson if he would sign a consent to
    search form.    Edmondson first demurred, then appeared to read the
    form thoroughly, and signed same.
         A search of the car revealed methamphetamine in a brown
    duffle bag on the back seat of the vehicle on which Navarro had
    been leaning.    Edmondson, Navarro, and Lopez were arrested and
    subsequently released on bond.    All three were indicted.
    Edmondson was returned to jail.    Navarro was arrested in Arkansas
    four months later as the result of a vehicle stop for speeding.
    Julie Ferguson, Navarro’s girlfriend, was driving and Navarro was
    a passenger.    After discovering the outstanding warrant for
    Navarro’s arrest, Navarro and Ferguson were removed from the
    vehicle and handcuffed.    At this time, Ferguson informed the
    officer about drugs at her house that belonged to Navarro.
    Ferguson escorted the Arkansas police to her home, which she
    shared with Navarro, and gave written and verbal consent for a
    search of the premises which revealed guns, but no drugs.
    Ferguson directed the officers, however, to a henhouse in the
    backyard where she advised that Navarro had buried drugs.    The
    officers checked and discovered cocaine and methamphetamine.
         Both Navarro and Edmondson unsuccessfully moved to suppress
    evidence of the drugs obtained during the search of the vehicle.
    At trial, Ferguson testified about Navarro’s drug activities and
    the government presented the evidence found in Arkansas.    The
    jury found Navarro and Edmondson guilty of both counts.
         Defendants were sentenced by video conferencing.    The
    district judge, Chief Judge Richard Schell, was in Beaumont,
    Texas; the prosecutor and the defendants and their attorneys were
    in court in Sherman, Texas, approximately 300 miles distant.
    Navarro consented to the sentencing by video conference;
    Edmondson objected to same.    The judge orally overruled
    Edmondson’s objection, later assigning written reasons.1
         In the sentencing guidelines computation Navarro received an
    increase of two levels for possession of firearms during the
    offense and four levels for his leadership role in the drug
    scheme.    Edmondson was sentenced to life in prison and Navarro
    was sentenced to 360 months.    Both timely appealed.
         Navarro and Edmondson challenge their convictions on several
    grounds.     Both contend that the district court erred in denying
    their motions to suppress evidence obtained as a result of the
    search of the vehicle and bag and that the district court erred
    in admitting evidence of the drug trafficking discovered in
    Arkansas.    Navarro maintains that the evidence was insufficient
              United States v. Edmondson, 
    10 F. Supp. 2d 651
     (E.D. Tex.
    to support his convictions.   Edmondson contends that the district
    court improperly determined that certain evidence submitted in
    camera was not
    discoverable under Brady v. Maryland.2   He also challenges his
    sentencing by video conferencing as violative of Rules 32 and 43
    of the Federal Rules of Criminal Procedure.   Finally, Navarro
    contends that the district court erred in increasing his base
    offense level for possession of a firearm and for his leadership
    role in the offense.3
         In reviewing the denial of a motion to suppress, we employ a
    two-tiered standard, examining the factual findings of the
    district court for clear error, and its ultimate conclusion as to
    the constitutionality of the law enforcement actions de novo.4
         Navarro maintains that the district court erred in denying
    his motion to suppress, claiming that Edmondson had neither
    actual nor apparent authority to consent to the search of his
    373 U.S. 83
            In letters pursuant to 5th Cir. R. 28.4, Edmondson and
    Navarro have raised the issue of United States v. Singleton, 
    144 F.3d 1343
     (10th Cir. July 1, 1998), op. vacated, rehearing en
    banc pending, id. (10th Cir. July 10, 1998). In Singleton, a
    panel of the Tenth Circuit found that a plea agreement offering a
    witness leniency in exchange for testimony violated 18 U.S.C. §
    201(c)(2), the federal bribery statute. Defendants contend that
    the pretrial diversion agreement the United States entered into
    with Julie Ferguson might also violate § 201(c)(2). Because we
    have recently rejected Singleton’s rationale, we find this claim
    to be without merit. United States v. Haese, No. 97-10307, 
    1998 WL 842185
    , at * 8 (5th Cir. Dec. 7, 1998); United States v.
    Webster, No. 96-11224, 
    1998 WL 834528
    , at * 42 (5th Cir. Dec. 3,
             United States v. Chavez-Villarreal, 
    3 F.3d 124
     (5th Cir.
    bag.       Specifically, Navarro insists that Edmondson’s consent to
    the search of the vehicle did not extend to his bag.5
           Edmondson also challenges the denial of the motion to
    suppress, contending that his continued detention at the vehicle
    after the officer told him he was free to leave was illegal.
    Thus, Edmondson maintains that, under Florida v. Royer,6 his
    subsequent consent to search was tainted by the illegal detention
    and was invalid.7
           A consensual search is a well-settled exception to the
    search warrant requirement.8      In determining whether a search
    based upon consent is valid, the government must prove that the
    search was voluntary and that the defendant consented to the
    search or consent was obtained from a third party with the
    ability to give valid consent.9
           In determining whether a consent to search is voluntary, we
            Navarro cites to United States v. Jaras, 
    86 F.3d 383
    Cir. 1996) for this proposition. In Jaras, this court held that
    a defendant’s consent to search the car did not include consent
    to search a passenger’s suitcase found in the trunk. In that
    case, the defendant told the police that the suitcase belonged to
    the passenger. Id. at 389.
    460 U.S. 491
     (1983) (plurality opinion).
            Edmondson does not allege that the initial traffic stop
    was invalid.
            United States v. Tompkins, 
    130 F.3d 117
     (5th Cir. 1997),
    cert. denied, 
    118 S. Ct. 1335
                United States v. Jenkins, 
    46 F.3d 447
     (5th Cir. 1995).
    review several factors, no one of which is dispositive.    These
    factors include:
         (1) the voluntariness of the defendant’s custodial
         status; (2) the presence of coercive police procedures;
         (3) the extent and level of the defendant’s cooperation
         with the police; (4) the defendant’s awareness of his
         right to refuse to consent; (5) the defendant’s
         education and intelligence; and (6) the defendant’s
         belief that no incriminating evidence will be found.10
    The district court found that the consent to search was
    voluntary.   Our review of the record persuades that there is no
    error in this finding.
         We then inquire whether, in light of the fact that Edmondson
    voluntarily consented to the search of the vehicle, his consent
    cured any earlier ostensibly illegal detention.   Under our
    precedent, a voluntary consent to search cures any error that may
    have occurred with respect to detention.11   Thus, assuming for
    this purpose that Edmondson’s continued detention at his car was
    in fact illegal, under Kelley and Shabazz, this illegality would
    not taint an otherwise voluntary consensual search.
         We also conclude that, as the district court found,
    Edmondson had the ability to consent to the search of the
    vehicle.   Further, we conclude that, according to the consent
            Tompkins, 130 F.3d at 121 (quoting United States v.
    861 F.2d 424
    , 426 (5th Cir. 1988) (citations
            United States v. Kelley, 
    981 F.2d 1464
     (5th Cir. 1993);
    United States v. Shabazz, 
    993 F.2d 431
     (5th Cir. 1993).
    form, he gave a general consent to search the entire vehicle,
    including the luggage contained therein.    There is no indication
    in the instant case, as there was in Jaras, that Edmondson
    advised that the luggage in the vehicle was not his.    Also,
    unlike Jaras, the bag containing drugs was not located in the
    trunk, but was in plain view on the back seat of the car.
    Further, neither Edmondson nor Navarro objected to the officer’s
    search of the bag.   Thus, we must conclude and hold that
    Edmondson’s consent included the consent to search the bag found
    to contain drugs and that the holding in Jaras does not prohibit
    the officer’s search of that bag.    We perceive no error in the
    district court’s denial of the motion to suppress.
         Navarro and Edmondson also contend that the district court
    erred in admitting evidence of drug trafficking discovered in
    Arkansas in January 1997.   Navarro insists that this evidence was
    irrelevant and prejudicial because it was outside the scope of
    the conspiracy alleged in the indictment and thus misled the
    jury.   The indictment alleged that the conspiracy concluded on or
    about September 24, 1996.   Navarro contends that if the
    government wanted to use the January 1997 Arkansas evidence, it
    should have obtained a superseding indictment.
         Edmondson also contends that the Arkansas evidence was
    irrelevant because it was outside the scope of the conspiracy.
    Further, Edmondson maintains that the evidence was admitted
    improperly under Federal Rule of Evidence 404(b).     In this
    regard, he asserts that the district court erred by not making
    findings under United States v. Beechum,12 and by not giving a
    limiting instruction.     Edmondson contends that these errors
    require either reversal or remand.
         Evidentiary rulings, including those involving 404(b)
    evidence, are reviewed under an abuse of discretion standard.13
    When no objection is made at the time of trial, we may examine
    only for plain error.14
         We first consider whether the Arkansas evidence was
    irrelevant and unduly prejudicial by being outside the scope of
    the conspiracy.   Navarro cites our recent decision in United
    States v. Brito15 for the proposition that the Arkansas evidence
    should have been excluded as being outside the scope of the
    conspiracy.   In Brito, we held that evidence of a small-user
    quantity of marihuana found after the indictment alleged the
    conspiracy had ended was “irrelevant, extraneous offense
    582 F.2d 898
     (5th Cir. 1978).
              United States v. Walker, 
    148 F.3d 518
     (5th Cir. 1998).
              Fed. R. Crim. P. 52(b).
    136 F.3d 397
     (5th Cir.), cert. denied, 
    118 S. Ct. 2389
    evidence” and that its admission was error.16   We also concluded,
    however, that its admission was harmless because the government
    did not refer to the evidence in its closing argument and because
    the jury was instructed that the defendants were not on trial for
    acts not alleged in the indictment.17
         In the instant case, we conclude that the Arkansas drug
    evidence was not “irrelevant, extraneous offense evidence,” even
    though it was discovered after the conspiracy allegedly ended.
    In Brito, we determined the evidence was irrelevant not only
    because of the time frame involved, but also because of the small
    quantity of marihuana that was introduced, compared to the
    charges of large-scale distribution for which the defendants were
    on trial.
         By contrast, the Arkansas evidence presented in the instant
    case demonstrated the structure of the drug organization, as well
    as the continuing contact between Edmondson and Navarro.    For
    example, the testimony by Ferguson   concerning the Arkansas
    activities reflected that the drugs seized in the initial traffic
    stop were a cost of business and that, after the arrest, the
    group found a new route for drug deliveries and continued
    distributing drugs from the trailer in Arkansas.   Thus, although
    we remain aware of the danger of irrelevancy when introducing
              Id. at 413.
    evidence obtained after the scope of the conspiracy has allegedly
    ended, the evidence in this case was indeed highly probative.    We
    accordingly find no error in the district court’s admission of
    the evidence.
         We must next decide whether the evidence of drug trafficking
    obtained in Arkansas    falls under the rubric of Rule 404(b) and,
    if so, whether the district court committed error in failing to
    make Beechum findings or to give a limiting instruction.18
    Navarro and Edmondson did not request a limiting instruction and,
    therefore, this assignment of error may be reviewed only for
    plain error.19
         At the threshold the district court must determine whether
    the proposed evidence is extrinsic, making applicable Rule
    404(b).   If this is found, the court must then decide whether the
    extrinsic evidence is relevant to a trait other than the
    defendant’s character, and whether the evidence has probative
    value that is not substantially outweighed by its undue
            Rule 404(b) of the Federal Rules of Evidence provides in
    pertinent part as follows:
              Evidence of other crimes, wrongs, or acts is not
         admissible to prove the character of a person in order
         to show action in conformity therewith. It may,
         however, be admissible for other purposes, such as
         proof of motive, opportunity, intent, preparation,
         plan, knowledge, identity, or absence of mistake or
         accident . . . .
    Fed. R. Evid. 404(b).
              See Fed. R. Crim. P. 52(b).
    prejudice.20   A failure to make these required “Beechum findings”
    on the record requires remand unless the probative value and
    prejudice of the evidence are readily apparent from the record
    and there is a substantial certainty that the ruling was
         We find that Beechum and Rule 404(b) are inapplicable to the
    Arkansas evidence because this evidence was intrinsic, rather
    than extrinsic, in nature.   “Evidence that is ‘inextricably
    intertwined’ with the evidence used to prove the crime charged is
    not ‘extrinsic’ evidence under Rule 404(b).   Such evidence is
    considered ‘intrinsic’ and is admissible ‘so that the jury may
    evaluate all the circumstances under which the defendant
    acted.’”22   As noted, the evidence of drug operations and
    organization in Arkansas demonstrated the continuing nature of
    the organization, the structure of the organization, and the
    continuing contact between Edmondson, Navarro, and Ferguson.
    Such evidence was “inextricably intertwined” with the evidence
    used to prove the charges of possession and conspiracy of
    methamphetamine.   Accordingly, because   Beechum findings or other
              Beechum, 582 F.2d at 911.
            United States v. Robinson, 
    700 F.2d 205
     (5th Cir. 1983);
    see also United States v. Zabaneh, 
    837 F.2d 1249
     (5th Cir. 1988).
            United States v. Royal, 
    972 F.2d 643
    , 647 (5th Cir.
    1992) (citations omitted) (quoting United States v. Randall, 
    887 F.2d 1262
    , 1268 (5th Cir. 1989)).
    determinations of 404(b) admissibility were not required for this
    intrinsic evidence,23 there was no error in the district court’s
    failure to make same.    We further find no plain error in the lack
    of a limiting instruction for this evidence.
         Navarro next contends that the evidence was insufficient to
    support his conviction for drug conspiracy and possession of
    methamphetamine with intent to distribute.    We review a claim of
    insufficiency of the evidence narrowly and affirm if a rational
    trier of fact could have found that the evidence established the
    essential elements of guilt beyond a reasonable doubt.24   The
    evidence is viewed in the light most favorable to the jury’s
    verdict, with all reasonable inferences rendered in favor of that
         Navarro first contends that there was insufficient evidence
    of possession of a controlled substance with intent to distribute
    because there was no testimony that the bag containing narcotics
    actually belonged to him.    He submits that the government did not
    link the bag containing methamphetamine to him because there were
    two other people in the car.    In addition, he asserts that there
    was insufficient evidence to convict on the conspiracy count
              United States v. Coleman, 
    78 F.3d 154
     (5th Cir. 1996).
            United States v. Mmahat, 
    106 F.3d 89
     (5th Cir. 1997),
    cert. denied, 
    118 S. Ct. 200
    because there was no evidence that he entered into an agreement
    with anyone to possess methamphetamine.
         The government counters that there was sufficient evidence
    of possession because Navarro, the only passenger in the backseat
    of the vehicle, was leaning against the bag containing the drugs.
    The government also points out that Navarro was charged with
    aiding and abetting possession with intent to distribute, which
    requires proof of association, participation, and action to help
    the activity succeed.26    The testimony of Julie Ferguson and
    other documentary evidence, the government suggests, establishes
    possession or aiding and abetting possession on behalf of
    Navarro.    As to the conspiracy conviction, the government
    contends that    there was sufficient evidence to infer an
    agreement to violate the narcotics law, which is all that is
    required to sustain a conviction for this crime.
         We conclude that, viewing the evidence in a light most
    favorable to the jury’s verdict, there was sufficient evidence
    that Navarro either owned the bag containing the narcotics or
    aided and abetted possession with intent to distribute the drugs.
    Further, we conclude that there was sufficient circumstantial
    evidence with which a rational trier of fact could have found
    Navarro guilty of the drug conspiracy.    We must therefore deny
    Navarro’s claim for relief on this basis.
               United States v. Pedroza, 
    78 F.3d 179
     (5th Cir. 1996).
         Edmondson next contends that certain discovery materials
    submitted to the district court under seal might be disclosable
    under Brady v. Maryland or Giglio v. United States.27   Under
    Brady, the prosecution must disclose evidence favorable to the
    accused upon request where the evidence is material to guilt or
    punishment.28   Further, under Giglio, when the reliability of a
    witness is determinative of guilt or innocence, evidence
    affecting credibility of that witness falls within Brady’s
    rule.29   A review of the evidence submitted under seal and the
    district court’s order denying discovery of this evidence
    persuades that there was no error in the district court’s
    decisions thereon.
         Navarro appeals the district court’s imposition of the 360
    month sentence, claiming that the two-level enhancement for
    possession of a weapon pursuant to USSG § 2D1.1(b)(1) was
    erroneous because there was no nexus between the offense of
    conviction and the gun.   Navarro also contends that the four-
    level upward adjustment for his leadership role under USSG §
    3B1.1(a) was unlawful because the record fails to establish that
    405 U.S. 150
              Brady, 373 U.S. at 87.
              Giglio, 405 U.S. at 154-55.
    level of his involvement in the drug activities.   We review the
    district court’s enhancement for possession of a firearm and for
    a leadership role for clear error as they are factual
         Section 2D1.1(b)(1) of the Sentencing Guidelines provides a
    two-level enhancement for possession of a firearm “unless it is
    clearly improbable that the weapon was connected with the
    offense.”31   The district court found that the firearms were
    connected with the drug offense because they were located in the
    house on the Arkansas premises from which Navarro conducted drug
    activity, the same premises on which the drugs were buried.     This
    finding was not in clear error.
         Section 3B1.1(a) of the Sentencing Guidelines provides that
    a four-level adjustment can occur if “the defendant was an
    organizer or leader of a criminal activity that involved five or
    more participants or was otherwise extensive.”   In making this
    determination, the application note to this section directs the
    court to consider the following factors: “the exercise of
    decision making authority, the nature of the participation in the
    commission of the offense, the recruitment of accomplices, the
            United States v. Buchanan, 
    70 F.3d 818
     (5th Cir. 1995),
    cert. denied, 
    517 U.S. 1114
     (1996); United States v. Menesses,
    962 F.2d 420
     (5th Cir. 1992).
            United States v. Villarreal, 
    920 F.2d 1218
    , 1221 (5th
    Cir. 1991).
    claimed right to a larger share of the fruits of the crime, the
    degree of participation in planning or organizing the offense,
    the nature and scope of the illegal activity, and the degree of
    control and authority exercised over others.”32
         Navarro insists that the sentence enhancement was in error
    because he exercised no control over his codefendants and because
    there were no coordinated drug activities between the defendants.
    The district court found that Julie Ferguson’s testimony at
    trial, detailing Navarro’s organization of various drug
    activities, was sufficient to warrant the enhancement for a
    leadership role.   We find no error in this finding.
         Therefore, for the foregoing reasons, the convictions of
    Navarro and Edmondson and the sentences of Navarro are AFFIRMED.
         We concur in every aspect of Judge Politz’s opinion except
    with respect to his view on Rule 43 expressed in his dissent and,
    accordingly, we write separately to explain why Rule 43, as
    written, requires the defendant’s physical presence in court
    during sentencing.   Although we are sympathetic to the concerns
    expressed by Judge Politz, this issue should be left to the
    drafters of the Rules — Congress and the Supreme Court — to amend
    the Rules to address those concerns.
         At sentencing, Edmondson refused to sign a Waiver of Rights
              USSG § 3B1.1, comment. (n.4).
    and Consent to Proceed by Video-Conference, and he objected that
    he wanted to be sentenced in person.      The district court
    overruled the objection, conducted the sentencing by video
    conferencing, and sentenced Edmondson to life incarceration on
    each of the two counts.      Edmondson argues on appeal that the
    court erred because video sentencing contravenes the plain
    language and purposes of Rules 32 and 43.      The Government argues
    that video conferencing satisfies the language of Rules 32 and
    43.     The Government also argues that video conferencing is widely
    used, that it is beneficial because it increases productivity by
    reducing travel time, and that it is less costly and more safe
    than transporting prisoners.
          We review a district court’s interpretation of the Rules de
    novo.     See United States v. Dean, 
    100 F.3d 19
    , 20 (5th Cir.
    1996).     Rule 43 provides for the “Presence of a Defendant”:
                 (a)   Presence Required.   The defendant shall be present
                 at the arraignment, at the time of the plea, at every
                 stage of the trial including the impaneling of the jury
                 and the return of the verdict, and at the imposition of
                 sentence, except as otherwise provided by this rule.
                 (b) Continued Presence Not Required.   The further
                 progress of the trial to and including the return of
                 the verdict, and the imposition of sentence, will not
                 be prevented and the defendant will be considered to
               have waived the right to be present whenever a
               defendant, initially present at trial, or having
               pleaded guilty or nolo contendere,
                    (1) is voluntarily absent after the trial has
                    commenced (whether or not the defendant has been
                    informed by the court of the obligation to remain
                    during the trial),
                    (2) in a noncapital case, is voluntarily absent at
                    the imposition of sentence, or
                    (3) after being warned by the court that
                    disruptive conduct will cause the removal of the
                    defendant from the courtroom, persists in conduct
                    which is such as to justify exclusion from the
               (c) Presence Not Required.   A defendant need not be
                    (1) when represented by counsel and the defendant
                    is an organization, as defined in 18 U.S.C. § 18;
                    (2) when the offense is punishable by fine or by
                    imprisonment for not more than one year or both,
                    and the court, with the written consent of the
                    defendant, permits arraignment, plea, trial, and
                    imposition of sentence in the defendant’s absence;
                    (3) when the proceeding involves only a conference
                    or hearing upon a question of law; or
                            (4) when the proceeding involves a correction of
                            sentence under Rule 35.
    FED. R. CRIM. P. 43.              The first step in interpreting the Rule is
    to consider the plain, ordinary meaning of the language of the
    Rule.     See United States v. Ron Pair Enters., Inc., 
    489 U.S. 235
    109 S. Ct. 1026
    , 1030, 
    103 L. Ed. 2d 290
     (1989).                                  The definition
    of “presence” in Black’s Law Dictionary is:
           Act, fact, or state of being in a certain place and not elsewhere, or within sight or call, at
           hand, or in some place that is being thought of. The existence of a person in a particular
           place at a given time particularly with reference to some act done there and then.
    BLACK’S LAW DICTIONARY 1065 (5th ed. 1979) (emphasis added). The whole dictionary
    definition suggests that the common-sense meaning of “presence” is physical existence in the same
    place as whatever act is done there. The Webster’s definition suggests a similar meaning. The
    Webster’s Third New International Dictionary defines “presence” as:
           The fact or condition of being present: the state of being in one place and not elsewhere:
           the condition of being within sight or call, at hand, or in a place being thought of: the fact
           of being in company, attendance or association: the state of being in front of or in the
           same place as someone or something.
    defines “present” as:
           [B]eing in one place and not elsewhere: being within reach, sight, or call or within
           contemplated limits: being in view or at hand: being before, beside, with, or in the same
           place as someone or something.
    Id. Although the dissent emphasizes the phrase “within sight or call,” the common-sense
    understanding of the definition is that a person must be in the same place as others in order to be
    present. The plain import of the definitions is that a person must be in existence at a certain place
    in order to be “present,” which is not satisfied by video conferencing.
           In addition to the bare meaning of the words, we also consider the context of the words in
    Rule 43. “‘[T]he meaning of statutory language, plain or not, depends on context.’” Bailey v.
    United States, 
    516 U.S. 137
    , 145, 
    116 S. Ct. 501
    , 506, 
    133 L. Ed. 2d 472
     (1995) (citations
    omitted). Rule 43 (a) requires a defendant’s “presence” not only at sentencing, but at all stages of
    trial. The rights protected by Rule 43 include the defendant’s constitutional Confrontation Clause
    and Due Process rights, and the common law right to be present. See, e.g., United States v.
    497 F.2d 1253
    , 1258 (4th Cir. 1974) (explaining scope of Rule 43 protection).
    Although there is no Confrontation Clause right at sentencing, this right is applicable to the other
    stages of trial. See Lindh v. Murphy, 
    96 F.3d 856
    , 870 (7th Cir. 1996) (stating no Confrontation
    Clause right at sentencing), rev’d on other grounds, 
    521 U.S. 320
    117 S. Ct. 2059
    138 L. Ed. 2d
     481 (1997). The Supreme Court has interpreted the Confrontation Clause, with certain
    exceptions, to guarantee a defendant a face-to-face meeting with witnesses appearing before the
    trier of fact. See Maryland v. Craig, 
    497 U.S. 836
    , 849, 
    110 S. Ct. 3157
    , 3165, 
    111 L. Ed. 2d 666
     (1990). Video conferencing would seemingly violate a defendant’s Confrontation Clause
    rights at those other stages of trial. The scope of the protection offered by Rule 43 is broader
    than that offered by the Constitution, and so the term “present” suggests a physical existence in
    the same location as the judge. This means that, for the purposes of sentencing, a defendant must
    be at the same location as the judge to be “present.” See Brown v. Gardner, 
    513 U.S. 115
    , 118,
    115 S. Ct. 552
    , 555, 
    130 L. Ed. 2d 462
     (1994) (“there is a presumption that a given term is used
    to mean the same thing throughout a statute”). Considering the context of the term “present” in
    Rule 43(a) indicates that a defendant must physically be in the courtroom.
            The context of the rest of Rule 43 supports the interpretation that “presence” means a
    defendant’s physical presence in court. The language of 43(b) is instructive to the meaning of
    “presence” in 43(a), because 43(b) defines the situations in which a defendant waives the right to
    be present. Rule 43(b) states that “the defendant will be considered to have waived the right to be
    present whenever a defendant, initially present at trial, . . . after being warned by the court that
    disruptive conduct will cause the removal of the defendant from the courtroom, persists in
    conduct which is such as to justify exclusion from the courtroom.” The words “initially present”
    indicate that the defendant is physically in the courtroom, and may be removed or excluded “from
    the courtroom” for certain behavior. It would be inconsistent for the word “present” to mean “in
    sight” in (a), as the dissent suggests, and for the word to mean physically present in the
    courtroom, which is the import of the language in (b). This inconsistency indicates that the term
    “present,” as it is used in the Rule, must mean physical existence at the same place. The context of
    the Rule negates the dissent’s reading of “presence.”
            The dissent attempts to bolster its conclusion by reference to Rule 2. We do not believe
    that Rule 2 can aid our construction of Rule 43 in this instance. Rule 2 instructs that:
            These rules are intended to provide for the just determination of every criminal
            proceeding. They shall be construed to secure simplicity in procedure, fairness in
            administration and the elimination of unjustifiable expense and delay.
    FED. R. CRIM. P. 2. The context of Rule 43 indicates, as explained above, that the term
    “presence” requires physical presence. Although Rule 2 is a rule of statutory construction, Rule 2
    does not require that a Rule be construed in contravention of its clear language.33
           Reference to the Advisory Committee Notes to Rule 43 bolsters the contextual
    interpretation of the meaning of “presence.” The Advisory Committee Notes are instructive on
    the drafters’ intent in promulgating the federal rules. See Williamson v. United States, 
    512 U.S. 594
    , 614-15, 
    114 S. Ct. 2431
    , 2442, 
    129 L. Ed. 2d 476
     (1994) (Kennedy, J., concurring) (listing
    cases taking Advisory Committee Notes as authoritative evidence of intent). The Notes suggest
    that the drafters of the Rule used “present” to mean physically being in the courtroom. When
    Rule 43 was adopted, it was meant to codify the right to be personally present. The Notes from
    the 1944 adoption state:
           The first sentence of the rule setting forth the necessity of the defendant’s presence at
           arraignment and trial is a restatement of existing law. Lewis v. United States, 
    146 U.S. 370
    13 S. Ct. 136
    36 L. Ed. 1011
     (1892); Diaz v. United States, 
    223 U.S. 442
    , 455, 
    32 S. Ct. 250
    56 L. Ed. 500
    FED. R. CRIM. P. 43 advisory committee’s note. The Supreme Court in Lewis equated the right
    to be present with “the right to be personally present,” and repeatedly discussed whether the
    defendant was “personally present in court.” Lewis, 146 U.S. at 372-73, 13 S. Ct. at 137. The
            The dissent suggests that the “practical necessities”
    require video conferencing. We are sympathetic to the expense
    and delay incurred by transporting prisoners, however, the
    decision whether this expense and delay is “justifiable” is the
    type of decision that should be considered by the drafters of the
    intent to restate the law in Lewis suggests that the use of the word “present” connotes personal
           Other Advisory Committee Notes from the 1944 adoption support this interpretation. The
    Notes that relate to the current version of Rule 43(c)(2) state:
           The fourth sentence of the rule, empowering the court in its discretion, with the
           defendant’s written consent, to conduct proceedings in misdemeanor cases in defendant’s
           absence adopts a practice prevailing in some districts comprising very large areas. In such
           districts appearance in court may require considerable travel, resulting in expense and
           hardship not commensurate with the gravity of the charge, if a minor infraction is involved
           and a small fine is eventually imposed. The rule, which is in the interest of defendants in
           such situations, leaves it discretionary with the court to permit defendants in misdemeanor
           cases to absent themselves and, if so, to determine in what types of misdemeanors and to
           what extent.
    FED. R. CRIM. P. 43 advisory committee’s note. The Note indicates that the drafters of the
    Rules were aware that moving prisoners to the courthouse will often cause delay and expense in
    large geographic areas. Providing that a defendant’s “presence [is] not required” for
    misdemeanor cases indicates that the drafters believed that for such cases, the practicalities
    outweighed a defendant’s need to be physically present. FED. R. CRIM. P. 43(c)(2). Given the
    drafters’ creation of an exception to the presence requirement where the practicalities favor such
    an exception, courts should be reluctant to create other exceptions based on similar practical
           Additionally, the Notes to the 1974 Amendment, which explain the language of current
    Rule 43(b)(3), suggest that a defendant is not present if teleconferencing is used:
           The concurring opinion of Mr. Justice Brennan [in Illinois v. Allen, 
    397 U.S. 337
    , 90 S.
           Ct. 1057, 
    25 L. Ed. 2d 353
     (1970)] stresses that the trial judge should make a reasonable
           effort to enable an excluded defendant “to communicate with his attorney and, if possible,
           to keep apprised [sic] of the progress of the trial.” 397 U.S. at 351, 90 S. Ct 1057. The
           Federal Judicial Center is presently engaged in experimenting with closed circuit television
           in courtrooms. The experience gained from these experiments may make closed circuit
           television readily available in federal courtrooms through which an excluded defendant
           would be able to hear and observe the trial.
    FED. R. CRIM. P. 43 advisory committee’s note. The Note indicates that closed-circuit
    television does not enable a defendant to be “present” under (a), but rather may be used when
    “continued presence [is] not required” under (b)(3). This implies that the drafters would believe
    that a defendant is not “present” when video conferencing is used for sentencing.
           The interpretation of Rule 43 can also be aided by comparing the Rule with other rules of
    procedure. The language of Rule 43 may be compared with the language in Federal Rule of Civil
    Procedure 43(a) (“Civil Rule 43(a)"), which allows for video conferencing. Civil Rule 43(a)
           In every trial, the testimony of witnesses shall be taken in open court . . . The court may,
           for good cause shown in compelling circumstances and upon appropriate safeguards,
           permit presentation of testimony in open court by contemporaneous transmission from a
           different location.
    FED. R. CIV. P. 43(a). The Advisory Committee Notes for the 1996 amendments to Civil Rule
    43(a) explain:
                     Contemporaneous transmission of testimony from a different location is permitted
           only on showing good cause in compelling circumstances. The importance of presenting
           live testimony in court cannot be forgotten. The very ceremony of trial and the presence
           of the factfinder may exert a powerful force for truthtelling. The opportunity to judge the
           demeanor of a witness face-to-face is accorded great value in our tradition. Transmission
           cannot be justified merely by showing that it is inconvenient for the witness to attend the
           Other possible justifications for remote transmission must be approached cautiously.
    FED. R. CIV. P. 43 advisory committee’s note. The Note indicates a clear preference for live in-
    court testimony. Based on the Note, it is unlikely that the drafters of the Rules would agree that a
    person is “present” for the purposes of Criminal Rule 43 because that person is on a video screen.
    Civil Rule 43 also indicates that, where the drafters believe that video conferencing is appropriate,
    the drafters will make provision in the Rules for the use of the technology.
           The Notes to Civil Rule 43 emphasize the importance of presenting testimony in court.
    The importance of in-court proceedings certainly does not diminish in the context of a criminal
    trial. There is a gravity to the sentencing process because the defendant will be deprived, possibly
    indefinitely, of his liberty. Sentencing a defendant by video conferencing creates the risk of a
    disconnect that can occur because “[t]he immediacy of a living person is lost.” Stoner v. Sowders,
    997 F.2d 209
    , 213 (6th Cir. 1993) (considering whether video depositions are as good as live
    testimony). “In the most important affairs of life, people approach each other in person, and
    television is no substitute for direct personal contact. Video tape is still a picture, not a life. ” Id.
    In light of the value of face-to-face sentencing, we find the logic in the Notes to Civil Rule 43 to
    be equally applicable to Criminal Rule 43 — i.e., transmission cannot be justified by showing that
    it is inconvenient for the defendant to attend the sentencing.
            We conclude that sentencing a defendant by video conferencing does not comply with
    Rule 43 because the defendant is not “present.” We refrain from interpreting Rule 43 in a matter
    at odds with the clear import of the language of Rule 43 and the Advisory Committee Notes.34
    “Absent a determination by Congress that closed circuit television may satisfy the presence
    requirement of the rules, [we are] not free to ignore the clear instructions of Rule[] . . . 43.”
    Valenzuela-Gonzalez v. United States Dist. Court, 
    915 F.2d 1276
    , 1281 (9th Cir. 1990).
            For the foregoing reasons the sentences of Edmondson are VACATED and the matter is
    REMANDED for his sentencing consistent herewith.
    Judge POLITZ, dissenting as to Part VI:
            In an issue of first impression requiring de novo review,35 Edmondson contends that the
    district court’s use of sentencing by video conferencing violated Rules 32 and 43 of the Federal
    Rules of Criminal Procedure.
            Rule 32 requires that the court “address the defendant personally” at the imposition of
             We determine that sentencing by video conference
    violates Rule 43, and therefore we do not address whether it also
    violates Rule 32.
                 In re Taylor, 
    132 F.3d 256
     (5th Cir. 1998).
    sentence.36 Rule 43 also provides as follows:
                       (a) Presence Required. The defendant shall be present at the arraignment,
              at the time of the plea, at every stage of the trial including the impaneling of the
              jury and the return of the verdict, and at the imposition of sentence, except as
              otherwise provided by this rule.37
    There are certain exceptions in Rule 43 to the presence requirement, none of which are applicable
              Edmondson contends that by sentencing him via video conferencing that the district judge
    did not address him “personally,” in violation of Rule 32. He also maintains that because he
    appeared by video he was not “present” at the sentence, as required by Rule 43(a). He relies on
    Valenzuela-Gonzalez v. United States Dist. Ct. for the Dist. of Arizona39 for this second
    proposition. In Valenzuela-Gonzalez, the Ninth Circuit held that arraignment by video violated
                   Fed. R. Crim. P. 32(c)(3)(C).
            The scope of Rule 43 is much broader than normal due
    process protections, United States v. Gordon, 
    829 F.2d 119
    Cir. 1987), and encompasses the common law concept that after an
    indictment is handed down, “nothing shall be done in the absence
    of the prisoner.” Id. at 124 n.4 (quoting Lewis v. United
    146 U.S. 370
    , 372 (1892)).
           For example, a defendant’s presence is not
    required for organizational defendants, for minor
    crimes, for conferences solely on questions of law, or
    for correction of sentences under Rule 35. Fed. R.
    Crim. P. 43(c).   Defendants may also be excused from
    court proceedings by voluntarily excusing themselves
    either through disruption or choice. Fed. R. Crim. P.
    915 F.2d 1276
     (9th Cir. 1990).
    Rules 10 and 43 of the Federal Rules of Criminal Procedure.40 Edmondson contends that video
    sentencing, like video arraignment, violates the Federal Rules.
           The government, in response, asserts that Edmondson and the district judge were
    essentially in the same location because they were able to see and hear each other clearly and
    because Edmondson was able to confer fully with his counsel, who was physically present with
    him in Sherman, Texas. The government also notes the importance of the use of video
    sentencing, including expedience in concluding the sentencing process, and the obvious very
    significant savings of judicial resources and the direct and indirect expenses thus avoided by the
    court, government, and defense.
           In determining whether the Federal Rules of Criminal Procedure were violated, I am
    persuaded that we should first examine the language of the Rules, giving that language its plain,
    common-sense meaning41 and construing the language to secure procedural simplicity and
    eliminate unjustifiable expense and delay.42 In so doing, we should note that no court has yet
    addressed this precise issue. “Presence,” as required by Rule 43, is defined in Black’s Law
    Dictionary as an “[a]ct, fact, or state of being in a certain place and not elsewhere, or within sight
    or call, at hand, or in some place that is being thought of.” Black’s Law Dictionary 1183 (6th ed.
    1990) (emphasis added). See also Webster’s Third New International Dictionary 1793 (1976)
    (defining “presence” as “the condition of being within sight or call, at hand, or in a place being
            Rule 10 provides that “[a]rraignment shall be conducted
    in open court.” Fed. R. Crim. P. 10.
                 United States v. Ron Pair Enters., Inc., 
    489 U.S. 235
                 See Fed. R. Crim. P. 2.
    thought of”).43
           Notwithstanding the foregoing meaning of “presence,” reflecting that a defendant is
    “present” when “within sight or call,” I am aware of contrary interpretations suggesting that
    “present” requires physical presence in a location. For example, besides the “within sight or call”
    definition, dictionaries also define “presence” and “present” as connoting physical existence in a
    place.44 Further, I am aware that “presence,” as used in other parts of Rule 4345 and as discussed
    in the advisory committee notes,46 suggests physical presence. These sources would apply the
    aspect of the “presence” definition indicating physical presence in a location. Presence, however,
    is not limited solely to physical existence. As the alternate definitions state, presence can also be
    accomplished by being “within sight or call.” Although the physical existence definition is
            The district court noted that many cases invalidating
    proceedings under Rule 43 involved situations in which defendants
    were physically absent from the proceedings and were not
    participating in any manner. See, e.g., United States v.
    23 F.3d 919
     (5th Cir. 1994).
            See Black’s Law Dictionary 1183 (6th ed. 1990) (also
    defining “presence” as the “existence of a person in a particular
    place at a given time particularly with reference to some act
    done there and then”); Webster’s Third New International
    Dictionary 1793 (1976) (defining “present” as “being in one place
    and not elsewhere”).
            An exception to a defendant’s presence in Rule 43(b)
    allows the defendant to be removed “from the courtroom” after
    being “initially present,” suggesting that the defendant is to be
    physically present in the courtroom unless an exception applies.
            For example, the notes to the 1974 Amendment imply that
    closed-circuit television would not enable a defendant to be
    present, as do the notes to the 1944 Adoption, which expressly do
    not require a defendant’s presence for misdemeanor cases because
    of the travel and hardship involved. See also Fed. R. Civ. P.
    43(c) (reflecting a decision to allow live video testimony for
    “good cause shown” in civil cases).
    certainly a sustainable position, giving appropriate effect to the clear intent of Rule 2 mandating a
    just determination in criminal proceedings and directing us to construe the Rules so as to eliminate
    unjustifiable expense and delay, requires that I conclude that the more appropriate view of
    “presence” includes the “within sight or call” aspect of the definition. I am persuaded that we
    should give it that meaning herein. Having said this, I am fully aware of the force of the
    majority’s reasoning. I feel compelled by prudence, however, to read the Rules so as to give the
    district courts a critically needed flexibility herein.
            Considering next the meaning of being “personally” addressed, I find that the right of
    presence at sentencing in Rule 43 and the right of allocution in Rule 32 are related and often have
    been combined.47 The common law right of allocution permitted the defendant to personally ask
    the court for leniency and to have that request considered by the court in sentencing.48 Further,
    the dictionary defines “personally” as “in person.”49 It therefore appears that the requirement in
    Rule 32(c)(3)(C) that the court “address the defendant personally” at sentencing means that the
    district judge, and not someone else, speak directly to the defendant. I perceive nothing inherent
    in the meaning of “personally” or “in person” that mandates a face-to-face encounter; rather, there
    need only be a personal one-on-one interaction between the judge and the defendant.
            Turning to the case at bar, I would reject Edmondson’s contention that Valenzuela-
    Gonzalez prohibits the use of sentencing by video conferencing. In one portion of the opinion,
    our sister circuit colleagues stated that Rule 10 and Rule 43 “together” required the district court
                 United States v. Moree, 
    928 F.2d 654
     (5th Cir. 1991).
                 Green v. United States, 
    365 U.S. 301
                 Webster’s Collegiate Dictionary 867 (10th ed. 1994).
    to conduct arraignments with the defendant physically present in the courtroom.50 Later in the
    opinion, they stated that “arraignment by closed circuit television does not constitute substantial
    compliance with either Rule 10 or Rule 43.”51 They also expressed concerns about sentencing.
           I appreciate our sister circuit colleagues’ concerns, but decline to accept their conclusion.
    It is my perception that Valenzuela-Gonzalez fails to recognize the alternative meaning of
    presence, focusing exclusively on the physical presence notion. Further, although our colleagues
    found that video arraignment violated provisions of both Rule 10 and Rule 43, the “open court”
    language so dominant there presents no issue in the case before us.52 Finally, I cannot agree with
    their conclusion, persuaded that it does not properly acknowledge and apply the simplicity and
    expedience mandate of Rule 2.
           Having considered the meaning of the Rules 32(c)(3)(C) and 43(a), I am persuaded
    beyond peradventure that Edmondson was “personally” addressed and “present” at his sentence
    as required by those rules. The room in Beaumont where the judge was located and the video
    conference room in Sherman where Edmondson, his attorney, and the Assistant United States
    Attorney were located, contain identical equipment. Each room had a camera and two 33-inch
                Valenzuela-Gonzalez, 915 F.2d at 1280.
                Id. at 1281 (emphasis added).
            I note that although the public was able to be present
    in both the Beaumont and Sherman conference rooms the record
    seems to indicate that the Sherman conference room is of such
    size as to have possibly excluded family members of defendants or
    other observers in the past. At such time as video conferencing
    may be allowed, we should encourage district courts, in order to
    make full use of this technology and to avoid possible problems
    with public exclusion, to use video conferencing in facilities
    where the public can have full access, such as existing
    television monitors that could be set to either a full or split screen view. One monitor gave almost
    a full view of the room in Sherman, including the tables at which the parties were located. The
    second monitor in each conference room gave a full view of the district judge. Microphones were
    located next to the parties and the video operator could focus in more closely on anyone
           Using this technology, Chief Judge Schell was able to communicate clearly with
    Edmondson and the other parties in the Sherman conference room. He was able to see the parties
    and ask the defendants and their attorneys questions. The attorneys and the defendants likewise
    were able to see and respond to the judge. The judge was able to interact with and observe the
    demeanor and body language of the defendants through real-time video communication.53 This
    interaction in the video conference results in far superior observation of demeanor for credibility
    assessments than judges and juries experience when observing a witness who is testifying by video
    deposition, a practice that long has been accepted by the courts.
           Edmondson also could not have been more “personally” addressed had he been standing a
    few feet in front of the judge in Beaumont, Texas. The judge, and not another person, was able
    to speak directly to the defendant, and not another person, in a one-on-one interaction and
    exchange, thus satisfying the requirements of Rule 32. Similarly, although he was not physically
    located in front of the judge, Edmondson was also “present” for the imposition of sentence
    because he was “within sight or call,” was “at hand,” and was able to participate directly in the
            But cf. United States v. Reynolds, 
    44 M.J. 726
     (Army Ct.
    Crim. App. 1996) (prohibiting use of a pre-trial proceeding by
    telephone under a military rule “very similar” to Rule 43 because
    the parties would not be able to see and observe each other).
    proceeding both with the court and his attorney.54
           The disposition I would reach today would give the required regard to the practical
    necessities involved herein. The round trip from Beaumont to Sherman, Texas is 630 miles.
    Sentencings by video conference manifestly would save significant time and travel expenses of the
    judge and the judicial staff, other court personnel, prosecutors and defense counsel, and their
    staffs. I am also sensitive to the reality that video conferences make possible more prompt
    sentencing.55 As I have noted, Rule 2 of the Federal Rules of Criminal Procedure aptly states:
    “[t]hese rules are intended to provide for the just determination of every criminal proceeding.
    They shall be construed to secure simplicity in procedure, fairness in administration and the
    elimination of unjustifiable expense and delay.” It is my view that we should recognize that face-
    to-face sentencing for each and every case is a preference that we no longer should insist on.56
             In so holding, I recognize the potential for concern if
    defense counsel was not present with the defendant at sentencing,
    but instead was either in the courtroom with the judge or at
    another location by video link. The risk exists that effective
    and secret privileged communications, and possibly zealous and
    adequate representation of the client, might not occur if defense
    counsel were at a different location than the defendant. See
    Fredric I. Lederer, Technology Comes to the Courtroom, and . . .,
    43 Emory L.J. 1095, 1106-07 (1994). I emphasize that nothing in
    the disposition I propose endorses sentencing by video
    conferencing where the defense attorney is not personally present
    with the defendant.
            It has long been noted that both the government and the
    defendant have an interest in the prompt resolution of criminal
    charges. Ecker v. Scott, 
    69 F.3d 69
     (5th Cir. 1995); see United
    States v. Hughey, 
    147 F.3d 423
    , 432 (5th Cir. 1998) (noting the
    “general interest in prompt and efficient administration of
            I am keenly aware of the concern that such procedures
    might be viewed with some discomfort. I underscore that
    defendants and judges would still be able to “look each other in
           Accordingly, I would conclude and hold that Rules 32 and 43 of the Federal Rules of
    Criminal Procedure were not violated when Edmondson was sentenced utilizing the video
    conference technology.57
    the eyes.” I am also confident that the individualized attention
    district judges have traditionally displayed in sentencing
    defendants would continue, whether that attention comes via video
    conferencing or in face-to-face encounters.
            If my view had prevailed, I would emphasize that it
    addresses only the sentencing proceeding. This decision approving
    sentencing via video conferencing would be buttressed in this
    case because there was no testimony by witnesses. We necessarily
    would have to reserve for another day any confrontation clause
    issue which such witnesses might occasion or which might arise at
    other phases of the criminal process.