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Case Summary — Ricardo Perez Goitia v. United States, No. 7106 (1st Cir. Apr. 15, 1969)

Factual and Procedural Background

The defendant was indicted on three counts for violations of the narcotics laws. After an arrest on July 17, 1967, he was released on bail following proceedings before a United States Commissioner. The indictment was filed August 7, 1967. The defendant pleaded not guilty on August 21, 1967, was released on bail, and the case was set for trial (originally for September 18, subsequently continued to October 2).

On October 2, 1967, the day set for trial, the defendant appeared with counsel and his attorneys moved to dismiss for want of jurisdiction and for a further continuance based on allegedly incomplete bill of particulars and the illness of the defendant's son. Those motions were denied. The court denied defense counsel's request to withdraw. The court impanelled a jury but continued the trial to October 5 to give defense counsel additional time.

On October 5, the defendant did not appear. After inquiries, the court concluded the defendant had voluntarily absented himself. The trial resumed the evening of October 6, 1967. Defense participation at the resumed trial was minimal: no opening by defense, no defense evidence, no cross-examination of the government's principal witness (Fortunato Jorge), and no statement to the jury. The prosecutor's closing argument included remarks that could be interpreted as commenting on the defendant's failure to testify.

The jury returned guilty verdicts on all three counts. The district court sentenced the defendant to concurrent thirty-year terms and non-cumulative $10,000 fines. After an extended period on the run, the defendant was apprehended in New York City on November 30, 1967. The defendant appealed, raising principally three claims: (1) abuse of discretion in proceeding to trial in absentia; (2) ineffective representation / conflict of interest by counsel; and (3) reversible error in the government's presentation of its case.

Legal Issues Presented

  1. Whether the district court abused its discretion in continuing and completing the trial in the defendant's absence (trial in absentia) under applicable authority, including Fed.R.Crim.P. 43.
  2. Whether the defendant received effective representation by counsel of his choice and whether a conflict of interest existed (specifically whether Attorney Andreu was a potential witness that created an irreconcilable conflict).
  3. Whether prosecutorial comments in closing argument that could be interpreted as commenting on the defendant's failure to testify constituted reversible error.

Arguments of the Parties

Appellant's Arguments

  • The district court abused its discretion by continuing and completing the trial in the defendant's absence (trial in absentia), and the propriety of such a proceeding must be judged by what the court knew at the time it ruled.
  • The defendant was not effectively represented by counsel of his choice; in particular, attorney Cesar Andreu Ribas allegedly overheard the defendant state he intended to flee and so would be a potential witness in any future bail-jumping prosecution, creating an irreconcilable conflict of interest.
  • There were reversible errors in the government's case presentation — specifically, prosecutorial remarks in closing argument that could be interpreted as commenting on the defendant's failure to testify.

The opinion does not contain a detailed account of appellee's separate or specific counter-arguments beyond the district court's factual findings and legal conclusions as recited by the panel.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Diaz v. United States, 223 U.S. 442 (1912) Establishes that in noncapital cases a defendant's voluntary absence after the trial has commenced does not prevent continuing the trial to verdict. Cited as the controlling authority that, when a defendant voluntarily absents himself after trial commencement, the trial may proceed in his absence; applied to conclude trial could continue since the jury had been impanelled and facts showed voluntary absence.
Cureton v. United States, 130 U.S.App.D.C. 22, 396 F.2d 671 (1968) Reinforces the rule permitting continuation of trial in the defendant's voluntary absence in noncapital cases. Used to support the proposition that Rule 43 and precedent permit proceeding when defendant voluntarily absents himself after trial has begun.
Fed.R.Crim.P. 43 Rule governing defendant's presence at trial; provides that voluntary absence after trial commencement in noncapital cases shall not prevent continuation to verdict. Quoted and applied: because the death penalty was not involved and the defendant voluntarily absented himself, the rule authorized continuation of the trial in his absence.
Glasser v. United States, 315 U.S. 60 (1942) Addresses conflicts of interest and the duty to avoid representing clients with incompatible interests. Cited as an example of courts correcting abuses where counsel's loyalties are divided; used in discussion to define "conflict of interest" and to evaluate the defendant's contention that counsel was conflicted.
Rolon Marxuach v. United States, 398 F.2d 548 (1st Cir. 1968), cert. denied, 393 U.S. 982 Relevant First Circuit authority referenced regarding counsel competence and related factual circumstances. Relied upon to show that Attorney Andreu had been previously found competent; the opinion refers to Rolon Marxuach in assessing counsel's competence and conduct.
Lamoureux v. Mass., No. 7200 (1st Cir. Mar. 20, 1969) Stands for the proposition that lack of rapport between attorney and client does not automatically demonstrate inadequate representation. Cited to support the conclusion that deteriorated relations or lack of rapport do not, by themselves, establish ineffective assistance.
Bostick v. United States, 400 F.2d 449 (5th Cir. 1968) Illustrates that the right to choice of counsel cannot be used to disrupt court proceedings. Used to support the statement that defendants cannot use counsel-choice claims to halt proceedings and that voluntary absence repudiates some rights to change counsel.
Dearinger v. United States, 344 F.2d 309 (9th Cir. 1965) Same general principle as Bostick regarding disruption tied to counsel choice. Cited in the same context to demonstrate that the right to choice of counsel has limits where it would disrupt proceedings.
United States v. Crespo, 398 F.2d 802 (2d Cir. 1968) Also cited concerning the limits on assertions of the right to counsel of choice when such a claim would disrupt trial proceedings. Applied as supportive authority for the court's view that a defendant's voluntary absence forecloses an effective change of counsel.
Holden v. United States, 388 F.2d 240 (1st Cir. 1968), cert. denied, 393 U.S. 864 Addresses prosecutorial comments and related objections; used for comparison on whether comments require reversal when no objection was made. Compared to the instant case to note that absence of objection and the nature of remarks weighed against reversal here.
Desmond v. United States, 345 F.2d 225 (1st Cir. 1965) Also concerns prosecutorial remarks and the effect of objection (or lack thereof) on appellate review. Used juxtaposed to Holden as part of the court's discussion of whether the prosecutor's comments warranted reversal when no objection was raised.
Holden v. United States, 393 F.2d 276 (1st Cir. 1968) Referenced for the proposition that comments focusing on lack of impeachment by cross-examination are different in kind from direct comments on failure to testify. Cited to support the court's view that the prosecutor's references tended to call attention to the lack of impeachment rather than to defendant's failure to testify.
Bruton v. United States, 391 U.S. 123 (1968) Concerning the potential ineffectiveness of jury instructions where a jury is asked to ignore damaging evidence as to one defendant but not another; admonitions may be ineffective in certain contexts. Discussed and distinguished: court recognized Bruton warns that instructions may be ineffective but found Bruton concerned a different context (confession against a codefendant) and not dispositive here.
Jackson v. Denno, 378 U.S. 368 (1964) Referenced in the discussion of the limits of jury instructions and the general difficulties of relying on admonitions. Used to support the court's recognition that jury admonitions can be ineffective, though the court found the instruction given here adequate under the circumstances.

Court's Reasoning and Analysis

The court proceeded through a fact-based, stepwise analysis addressing each of the defendant's principal contentions.

  1. Trial in absentia: The court began from the established legal principle (Fed.R.Crim.P. 43; Diaz; Cureton) that a defendant's voluntary absence in a noncapital case does not prevent trial continuation once trial has commenced. It acknowledged the appellant's argument that propriety must be judged by what the court knew at the time of the decision, but held that the record here supported the district court's contemporaneous findings. The court recited the chronology: multiple adjournments, inquiries about defendant's whereabouts, the fact that investigators concluded he had fled the jurisdiction, and a marshal's and counsel's report that the defendant had said he would absent himself. The First Circuit concluded the district court had not acted precipitously but had made a "painstaking inquiry" before finally deciding to proceed that evening.
  2. Effectiveness of counsel / conflict of interest: The court rejected the contention that Attorney Andreu's having heard the defendant say he would flee made Andreu a potential witness and created an irreconcilable conflict. The panel explained the legal meaning of "conflict of interest" — a situation in which duties to one client tend to lead to disregard of another — and observed that the situation alleged did not fit that definition. The court cited Glasser and Rolon Marxuach on conflicts and counsel competence. The panel also addressed the related contention that the attorney-client relationship had deteriorated: it noted that lack of rapport alone does not demonstrate ineffective assistance (citing Lamoureux) and that Andreu had previously been deemed competent. The court observed that defense inactivity at trial was consistent with a strategy (or at least an acquiescence) by the defendant himself, as shown by the defendant's conduct during jury selection, and concluded that voluntary absence undermined any asserted right to change counsel.
  3. Prosecutorial comments / failure to testify: The court acknowledged that parts of the prosecutor's closing argument were "quite improper" insofar as they could be read as commenting on the defendant's failure to testify. However, the court identified three reasons why those remarks did not warrant reversal here: (a) defense counsel made no contemporaneous objection; (b) the prosecutor's emphasis could legitimately be understood as focusing on the absence of impeachment via cross-examination (i.e., on what evidence had been presented) rather than as an impermissible comment on silence; and (c) the district court gave a clear, explicit instruction directing the jury not to consider the defendant's failure to testify. The panel acknowledged the general concerns raised by Bruton about the ineffectiveness of admonitory instructions in some contexts but distinguished Bruton as addressing a different, more troubling context (a confession implicating co-defendants). The court concluded the instruction here, together with the circumstances, cured the prejudice as best the court could.

Holding and Implications

Affirmed.

Holding: The First Circuit affirmed the district court's conviction and sentence. The panel held that (1) the district court did not abuse its discretion in proceeding to trial in the defendant's absence because the record supported a finding of voluntary absence after trial commencement; (2) the alleged conflict of interest and asserted lack of effective representation were not shown to require reversal; and (3) the prosecutor's remarks, while partially improper, did not constitute reversible error in light of the lack of objection, the character of the remarks, and the district court's explicit instruction to the jury.

Implications: The direct effect is that the defendant's convictions and sentences stand. The opinion applied established authorities (Diaz, Rule 43, and related First Circuit and Supreme Court precedents) to the facts at hand and did not announce any novel legal doctrine; the court emphasized factual findings supporting trial continuation and the adequacy of procedural protections (jury instruction), rather than creating new precedent.

Ricardo PEREZ GOITIA, Defendant, Appellant, v. UNITED STATES of America, Appellee.

McENTEE, Circuit Judge.

Defendant was charged in a three count indictment with violation of the narcotics laws. The case went to trial on October 2, 1967, on which date he appeared in court with counsel. After the trial had commenced, defendant jumped bail and absconded. Invoking Fed.R.Crim.P. 43, the district court ordered the trial to continue without him. The jury returned a verdict of guilty on all three counts. In this appeal defendant contends principally that the district court abused its discretion in resorting to trial in absentia; that he was not effectively represented by counsel and further, that reversible error was committed in the presentation of the government's case.

All dates hereinafter mentioned refer to the year 1967.

After an extended odyssey, he was finally apprehended in New York City on November 30.

"In prosecutions for offenses not punishable by death, the defendant's voluntary absence after the trial has been commenced in his presence shall not prevent continuing the trial to and including the return of the verdict * * *" The death penalty is not involved in this case.

Thereafter defendant was sentenced to concurrent thirty year terms and non-cumulative $10,000 fines.

In view of the issues raised we think it necessary to recite the facts in some detail. Shortly after his arrest on July 17, defendant was brought before a United States Commissioner. He was represented by Attorney Cesar Andreu Ribas, who obtained his release on bail. On August 7 the indictment was filed and four days later, at Attorney Andreu's request, the arraignment was continued to August 21 and the defendant was granted permission to travel to the Dominican Republic to get his family. On August 21 the defendant, now represented by Benicio Sanchez Castano in addition to Andreu, pleaded not guilty to the indictment, was released on bail and the case was set for trial on September 18. At his attorneys' request, defendant's trial was later continued to October 2.

On September 11 defendant's attorneys moved for another continuance and also for a bill of particulars. The government filed its bill of particulars on September 28, but no disposition was made of the motion for a continuance. On October 2, the day set for trial, defendant through his attorneys, moved to dismiss the indictment for want of jurisdiction. Counsel also requested a further continuance on the ground that the government's incomplete bill of particulars made proper investigation of the case impossible and that due to the illness of the defendant's son, counsel had no chance to confer with their client. After both of these motions were denied Sanchez and Andreu asked the court's permission to withdraw as defense counsel which request was denied.

The court then proceeded to impanel a jury in which undertaking it got little, if any, cooperation from the defendant's attorneys. In fact the defense declined to exercise any challenges despite repeated opportunities given to it by the court to do so, a course of conduct in which the defendant himself acquiesced. After the jury was finally impanelled, the district court continued the trial to October 5 to give defense counsel more time for preparation and, as the court frankly acknowledged, to avoid a collision over what amounted to refusal by counsel to proceed with trial on October 2.

On October 5 the court and jury gathered at the appointed time, but Attorney Andreu was late, Attorney Sanchez was at home ill, and the defendant did not appear at all. After further delays during which the court established that the defendant had voluntarily absented himself, the trial was resumed the following evening (October 6) at 8 p.m. Attorney Sanchez was not on hand and Attorney Andreu was reluctant to proceed, saying that the defendant no longer desired his services. After expressing confidence in Andreu, the court appointed yet another attorney, Stanley Feldstein, to assist him.

The trial itself was very brief and the participation of defense counsel perfunctory, to say the least. The prosecutor made a brief opening statement, presented stipulations as to testimony by two government witnesses on somewhat formal matters; and then called a government agent named Fortunato Jorge, who testified on the substance of the government's case. The prosecutor's summation followed. Defense counsel made no statement to the jury, presented no evidence and did not cross-examine Jorge (although the court itself asked him certain clarifying questions). In the face of such a recital it would require a strong portion of ingenuity to suggest that the court had been less than fair to this defendant.

The first was testimony by a chemist that the substance in question was heroin. The second was testimony by a Commonwealth official that there was no record that the defendant had authorization to sell narotics.

It is not disputed that if, after the beginning of trial in noncapital cases the defendant voluntarily absents himself, the trial may continue in his absence. Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912); Cureton v. United States, 130 U.S.App.D.C. 22, 396 F.2d 671 (1968); Fed.R.Crim.P. 43. Nor is it disputed that in this case the trial had begun, the jury having already been impanelled. Diaz, supra, at 455, 32 S.Ct. 250. Defendant contends that the propriety of trial in absentia must be judged on the basis of what the court knew at the time it ruled on this matter and cannot be validated by subsequent events.

The principle may be conceded but it does not aid this defendant. Here the trial was scheduled to begin at 9 a.m. on October 5 but in fact did not begin until 8 p.m. on the 6th. When the defendant did not appear on the 5th, the court did not immediately jump to conclusions despite the fact that this was the third missing defendant that week in a related series of cases and, indeed, involving the same attorneys. Instead, it waited, on the theory that the defendant like Attorney Andreu might have misunderstood the assigned time. Even then, after several additional delays, the court made no final decision to go ahead with the trial until it learned that the investigative authorities had concluded that the defendant had fled the jurisdiction and until a marshal and Attorney Andreu reported a conversation in which defendant had said he would absent himself.

In defendant's brief it is laconically conceded that "[i]t is reasonable to assume that Goitia fled the jurisdiction subsequent to trial."

Defendant stresses that on the morning of October 6, in the proceedings in a related case, the court indicated that it would proceed as soon as possible with the Goitia case, because the defendant had voluntarily absented himself. Without for a moment intimating that the court was not justified in making such a declaration on the basis of its knowledge at that point, we note that the decision to go forward with the trial was not final until the court had completed its painstaking inquiry on the evening of the trial itself.

This conversation provides an aspect of defendant's next contention, that he did not receive effective representation by counsel of his choice. Assuming that Attorney Andreu heard the defendant say he was about to flee, it is contended he would be a potential witness against the defendant in a future trial for bail jumping and this would present an irreconcilable conflict of interest. This proposition is not supported by citation of authority and in our opinion is inaccurate. The term "conflict of interest" bespeaks a situation in which regard for one duty tends to lead to disregard of another. The obvious example of this is representation of clients with incompatible interests. The courts have not been slow to correct such abuses. Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 86 L.Ed. 680 (1942); see Rolon Marxuach v. United States, 398 F.2d 548 (1st Cir.), cert. denied, 393 U.S. 982, 89 S.Ct. 454, 21 L.Ed.2d 443 (1968). While conflicts of many types can be imagined, see generally Annot. 17 A.L.R.3rd 835 (1968), it is difficult to see how the situation here presents a conflict of any sort.

See ABA Canons of Professional Ethics No. 6: "Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose."

Technical conflict of interest apart, defendant next asserts that his relations with Attorney Andreu had deteriorated to such an extent that the attorney-client relationship had ceased to exist and indeed that at the trial no defense worthy of the name was presented. We note first that lack of rapport between attorney and client does not automatically mean that there has been inadequate representation. Lamoureux v. Mass., No. 7200 (1st Cir. March 20, 1969). Further, Attorney Andreu was thoroughly competent to try the case, as we have already determined in the similar case of Rolon Marxuach, supra, at 551. Nor did he lack zeal, although this was best demonstrated in matters that tended to delay the trial. If at the actual trial counsel were inactive there is reason to believe that defendant himself concurred in this strategy, as evidenced by his conduct during the selection of jurors. We will not assume that a defendant who voluntarily absents himself from the trial is greatly concerned with presenting an energetic defense.

It is even suggested that defendant dismissed Attorney Andreu. But the defendant never informed the court of such a desire and in any event the right to choice of counsel may not be allowed to lead to the disruption of court proceedings. Bostick v. United States, 400 F.2d 449 (5th Cir. 1968); Dearinger v. United States, 344 F.2d 309 (9th Cir. 1965); see also United States v. Crespo, 398 F.2d 802 (2d Cir. 1968).

In voluntarily absenting himself from the trial we think this defendant lost his opportunity to change counsel if this is what he wished and repudiated his right to appear and be confronted by witnesses. To hold otherwise would allow him to make a mockery of the judicial process at his own whim.

Of the objections raised to the presentation of the government's case we need discuss but one. In its closing argument the prosecution made several references which could be interpreted as comments on the defendant's failure to testify.

"You have heard the testimony of the Government, the only evidence before you.
"Fortunato Jorge has proved the case beyond a reasonable doubt. I don't think I should argue any more. There should be no doubt as to the Government's having proved beyond a reasonable doubt the three counts. Ricardo Perez Goitia, according to the testimony, had in his possession the narcotic drug, Ricardo Perez Goitia sold the narcotic drug to the special employee. There is no other testimony to the contrary. The only evidence you have is the testimony of Fortunato Jorge, which has not been impeached or cross-examined by the attorney for the defense."

Although part of this was quite improper, we do not think it is grounds for reversal in this case. In the first place there was no objection to these remarks. Compare Holden v. United States, 388 F.2d 240 (1st Cir. 1968), cert. denied, 393 U.S. 864, 89 S.Ct. 146, 21 L.Ed.2d 132, with Desmond v. United States, 345 F.2d 225 (1st Cir. 1965). Second, the reference to "impeached or cross-examined by the attorney for the defense" tended to focus attention — legitimately — on the absence of impeachment by cross-examination rather than on contradiction by some other witness. Cf. Holden v. United States, 393 F.2d 276 (1st Cir. 1968). Finally, the court instructed the jury in clear language that

"[t]he fact that the defendant has not testified in this case must not be considered or given any consideration by you whatsoever in your appraisal of the evidence presented to you. This is totally improper and should not be discussed or considered, because it is a constitutional right which everyone has not to testify in his own case."

We recognize that admonitory instructions may be ineffective. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). But Bruton was concerned with an instruction to a jury to consider a confession against one codefendant but not against another, although it implicated both. This was a call to a sort of intellectual and moral heroism. Much of the discussion of authorities in Bruton presupposed such a context. See Jackson v. Denno, 378 U.S. 368, 388-389, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). In the instant case, however, a jury that is able and willing to disregard defendant's failure to testify in the first place — and a defendant has to run this risk in any event — is likely to be equally capable of ignoring prosecution comments which, after all, were not of an aggravated sort. The truly aggravating feature in this case is that the jury was aware that defendant was not even present. But for this the defendant had only himself to blame. Even this the court cured as best it could by appropriate instruction to the jury.

Compare Bruton, supra, at 131, 88 S.Ct. 1620, where it is pointed out that the problem in that case could have been solved by severance. See Fed.R.Crim.P. 14.

Affirmed.

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GOITIA v. UNITED STATES
(Apr 15, 1969)