506 U.S. 255, 113 S. Ct. 748 (1993)
In April 1988, a federal grand jury in the District of Minnesota indicted petitioner Michael Crosby and others on multiple counts of mail fraud.1 The indictment alleged that Crosby and his codefendants had devised a fraudulent scheme to sell military-veteran commemorative medallions supposedly to fund construction of a theme park honoring veterans.2 Crosby appeared before a federal magistrate on June 15, 1988, and, upon his plea of not guilty, was conditionally released from detention after agreeing to post a $100,000 bond and remain in the State.3 Subsequently, he attended pretrial conferences and hearings with his attorney and was advised that the trial was scheduled to begin on October 12.4
Crosby did not appear on October 12, however, nor could he be found.5 United States deputy marshals reported that his house looked as though it had been “cleaned out,” and a neighbor reported that petitioner’s car had been backed halfway into his garage the previous evening, as if he were packing its trunk.6 As the day wore on, the court remarked several times that the pool of 54 potential jurors was being kept waiting, and that the delay in the proceedings would interfere with the court’s calendar.7 The prosecutor noted that Crosby’s attorney and his three codefendants were present, and commented on the difficulty she would have in rescheduling the case, should Crosby later appear, because some of her many witnesses were elderly and had health problems.8
When the District Court raised the subject of conducting the trial in Crosby’s absence, Crosby’s attorney objected.9 Nevertheless, after several days of delay and a fruitless search for Crosby, the court, upon a formal request from the Government, decided that trial would commence on October 17.10 The court ordered Crosby’s $100,000 bond forfeited and stated for the record its findings that Crosby had been given adequate notice of the trial date, that his absence was knowing and deliberate, and that requiring the Government to try Crosby separately from his codefendants would present extreme difficulty for the Government, witnesses, counsel, and the court.11 Trial began on October 17, with petitioner’s counsel actively participating, and continued in Crosby’s absence until November 18, when the jury returned verdicts of guilty on charges against Crosby and two of his codefendants.12
Approximately six months later, Crosby was arrested in Florida and brought back to Minnesota, where he was sentenced to 20 years in prison followed by 5 years on probation with specified conditions.13 Crosby’s convictions were upheld by the Court of Appeals.14 The Supreme Court granted certiorari.15
Whether Federal Rule of Criminal Procedure 43 permits the trial in absentia of a defendant who absconds prior to trial and is absent at its beginning?16
Federal Rule of Criminal Procedure 43(a) provides that the defendant shall be present at every stage of the trial except as otherwise provided by this rule, and subsection (b) permits continuation of the trial only when a defendant, initially present, is voluntarily absent after the trial has commenced.17
No. Rule 43(a) mandates the defendant's presence at every stage of the trial except as otherwise provided by the rule.18 The only exception in Rule 43(b) for voluntary absence applies solely when the defendant is initially present and then absents himself after the trial has commenced.19 In April 1988, a federal grand jury in the District of Minnesota indicted Michael Crosby on multiple counts of mail fraud for a scheme involving the sale of commemorative medallions to fund a veterans' theme park.20 Upon his not guilty plea before a magistrate on June 15, 1988, Crosby was released on a $100,000 bond with the condition that he remain in the state, and he subsequently attended pretrial conferences where he learned of the October 12 trial date.21
Crosby failed to appear for trial on October 12, and authorities could not locate him after his house was found cleaned out and his car partially packed in the garage.22 The district court noted the burden on the pool of 54 potential jurors and the prosecutor's difficulty with rescheduling due to elderly witnesses with health issues, while Crosby's attorney objected to any trial in his absence.23 After several days of delay and an unsuccessful search, the court granted the government's request to begin trial on October 17, forfeited the bond, and made findings that Crosby's absence was knowing and voluntary before proceeding with the trial in his absence until guilty verdicts were returned on November 18.24 The history from common law and the Diaz decision, which the rule restates, confirms that waiver is permitted only after the trial has begun in the defendant's presence, and the practical distinctions between pretrial and midtrial flight further support drawing the line at the start of trial.25
Federal Rule of Criminal Procedure 43 does not permit a trial in absentia when the defendant absconds before the trial begins and is absent at its commencement.26