Monday, December 10, 2012

Defendant's Presence Not Required at Hearing on Late Government Discovery

US v. Gonzales-Flores: Gonzales-Flores was charged with various drug, immigration, and firearm offenses. Two days before trial, the Government filed a notice that it would produce testimony from three expert witnesses at trial. Gonzales-Flores moved to exclude that testimony due to the late disclosure. The day before trial the district court held a telephonic hearing, in which Gonzales-Flores's counsel and the AUSA took part. Gonzales-Flores was not present (even in the ether at the other end of a phone line) and his counsel did not object to his absence. The district court denied Gonzales-Flores's motion and he was convicted on several counts and sentenced to 180 months in prison.

 On appeal, Gonzales-Flores argued that under Rule 43 of the Rules of Criminal Procedure he had a right to be present at the hearing on excluding the Government's expert witnesses and his absence required reversal of his conviction. The Fourth Circuit disagreed and affirmed his conviction. Assuming, without deciding, that the telephonic hearing was a "trial stage" as defined in Rule 43(a), the court nonetheless concluded that it fell within the exception in Rule 43(b)(3), which states that the defendant's presence is not required for a proceeding that "involves only a conference or hearing on a question of law." The fact that the proper standard of review for the underlying issue of the district court's denial of the motion to exclude (had it been raised) would be abuse of discretion does not mean the hearing involved something other than a "question of law." Therefore, there was no error in Gonzales-Flores's absence, much less a plain one.

No comments: