United States of America v.  Desmond Charles Lawrence

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4278 
DESMOND CHARLES LAWRENCE,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CR-96-449)
Argued: January 26, 2001
Decided: April 27, 2001
Before WILKINSON, Chief Judge, WIDENER, Circuit Judge,
and Raymond A. JACKSON, United States District Judge for the
Eastern District of Virginia, sitting by designation.
Vacated and remanded for resentencing by published opinion. Chief
Judge Wilkinson wrote the opinion, in which Judge Widener and
Judge Jackson joined.
COUNSEL
ARGUED: Allen Bethea Burnside, Assistant Federal Public
Defender, Columbia, South Carolina, for Appellant. John Michael
Barton, Assistant United States Attorney, Columbia, South Carolina,
for Appellee. ON BRIEF: J. Rene Josey, United States Attorney,
Columbia, South Carolina, for Appellee.

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OPINION
WILKINSON, Chief Judge:
In this case, we must decide whether Rule 43 of the Federal Rules
of Criminal Procedure requires a defendant to be physically present
at the imposition of sentence, or whether the rule permits a defendant
to appear via video teleconference. On March 22, 2000 the district
court sentenced Desmond Lawrence to 360 months in prison for two
counts of bank robbery. Lawrence appeared in the Columbia, South
Carolina courtroom through a video feed from his prison in Florence,
Colorado. Because "presence" in Rule 43 means physical presence,
we must vacate Lawrence’s sentence and remand the case to the dis-
trict court for further proceedings consistent with this opinion.
I.
On December 30, 1996 Desmond Lawrence pleaded guilty to bank
larceny. See 18 U.S.C. § 2113(b)(1994). He admitted to robbing
$1,591 from the Carolina First Bank. The evidence against Lawrence
on this count was overwhelming. After he grabbed the money from
an open teller drawer, Lawrence in his haste left some papers at the
bank. These papers included his handwritten demand note and an
envelope with his name on it. On January 6, 1997, a jury convicted
Lawrence of attempting to rob another bank, First Union. See 18
U.S.C. § 2113(a). Both the Carolina First robbery and the First Union
attempted robbery occurred within one hour of each other.
At sentencing, the district court upwardly departed from a range of
77 to 96 months to a range of 360 months to life because of Law-
rence’s past criminal history. See U.S.S.G. § 4A1.3. Because the stat-
utory maximum on the two counts was a combined thirty years, the
district court sentenced Lawrence to 360 months. At this sentencing
hearing, Lawrence was unruly and abusive. Lawrence cursed at the
hearing, sarcastically challenged the district court to sentence him to
death, and repeatedly boasted of his intention to continue breaking the
law. Lawrence, who is six feet, eight inches tall, and weighs about
three hundred pounds, had to be restrained in some of his court
appearances by a 50,000 volt stun belt.
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This court subsequently vacated and remanded Lawrence’s sen-
tence because the district court did not adequately explain its reasons
for the upward departure. See United States v. Lawrence, 161 F.3d
250, 255-56 (4th Cir. 1998). Soon after, the district court entered an
order that the defendant’s resentencing take place by video confer-
ence. The district court was concerned about Lawrence’s behavior. In
addition to his outbursts at trial and at sentencing, the district court
noted that Lawrence had behaved violently while in custody prior to
his 1997 trial. He was charged and pleaded guilty to the September
16, 1996 assault of federal prison officials in Atlanta, Georgia. Fur-
thermore, he pleaded guilty to attempting to escape from federal
prison in Atlanta. The district court also pointed out that Lawrence
allegedly raped a female prisoner at the Lexington County, South
Carolina jail, although the government did not pursue criminal action
against Lawrence for this. Lawrence is currently incarcerated at the
federal super-maximum security prison in Florence, Colorado. At the
time of his resentencing, the Bureau of Prisons considered Lawrence
"a danger for transport" and a "very dangerous individual due to his
past behavior."
Lawrence filed an interlocutory appeal from the district court’s
video order, arguing that Rule 43 and the United States Constitution
mandate his physical presence at sentencing. This court dismissed the
interlocutory appeal because it was not ripe. See United States v. Law-
rence, 201 F.3d 536, 537 (4th Cir. 2000). Lawrence then asked the
district court to reconsider its order mandating a sentencing hearing
via video teleconference in light of the fact that the United States
Marshal’s Service had recently transported Lawrence without incident
to Atlanta, Georgia for a civil hearing. The district court denied this
request, and held its resentencing hearing on March 22, 2000.
At the sentencing hearing, Lawrence was physically located at the
Florence, Colorado prison. One of his attorneys was with Lawrence
in Colorado, and another was present in the courtroom in Columbia,
South Carolina. The judge, prosecutor, and all other court personnel
were located in the Columbia courtroom. Eleven video monitors were
placed in the courtroom. Lawrence could confer privately with his
attorneys at any time. No technical problem occurred during the video
sentencing. Lawrence and his attorneys strenuously objected to the
video conferencing, arguing that interacting with a person on televi-
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sion is completely different from live interaction. The trial court over-
ruled this objection. The district court also resentenced Lawrence to
the statutory maximum of 360 months, upwardly departing under a de
facto career offender analysis of Sentencing Guideline § 4A1.3 and
§ 4B1.1 and further upwardly departing under § 4A1.3 due to the like-
lihood that Lawrence would commit more crimes. Lawrence now
appeals both the video sentencing procedure as well as the upward
departures.
II.
Lawrence first argues that both the United States Constitution and
Rule 43 of the Federal Rules of Criminal Procedure require a defen-
dant’s physical presence at sentencing hearings. We conclude that the
plain text of Rule 43 mandates that a defendant be physically present
at sentencing except when the rule specifically provides otherwise.
Because Lawrence was not physically present at his sentencing hear-
ing, and because his absence does not meet any of Rule 43’s excep-
tions, his sentence must be vacated.1
A.
Rule 43 requires a defendant to "be present" at every stage of the
trial, including "at the imposition of sentence." Fed. R. Crim. P. 43(a).
The Rule states in pertinent part:
(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 oth-
erwise 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 defen-
1Because we resolve this case on statutory grounds, we do not reach
Lawrence’s claim that the Constitution itself requires Lawrence to be
physically present at sentencing. See, e.g., Illinois v. Allen, 397 U.S. 337
(1970).
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dant will be considered to have waived the right to be pres-
ent whenever a defendant, initially present at trial, or having
pleaded guilty or nolo contendere,
(1) is voluntarily absent after the trial has com-
menced (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 courtroom.
Fed. R. Crim. P. 43.
The United States argues that the presence requirement of Rule 43
does not impose an absolute condition of a defendant’s physical pres-
ence at sentencing in each and every case. Rather, it maintains that
the practical realities of the criminal justice system necessitate giving
district courts flexibility in certain cases by allowing innovative tech-
niques such as video conferencing.
The plain meaning of the term "presence," however, belies such an
interpretation of the rule. The Oxford English Dictionary defines
"presence" as "[t]he fact or condition of being present; the state of
being before, in front of, or in the same place with a person or thing;
being there." Oxford English Dictionary (2d ed. 1989). And that dic-
tionary further defines "present" as "[b]eing before, beside, with, or
in the same place as the person to whom the word has relation; being
in the place considered or mentioned; that is here (or there)." Id.
Black’s Law Dictionary has a similar definition of "present" — "[i]n
attendance; not elsewhere." Black’s Law Dictionary 1202 (7th ed.
1999).
Other dictionaries confirm that presence means physical presence.
Webster’s defines "presence" as "[t]he state or fact of being present,"
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and "[i]mmediate proximity in time or space." Webster’s II New Col-
lege Dictionary 874 (1999). "Present" is then defined as "[b]eing at
hand." Id. Another version of Webster’s also makes clear that "pres-
ence" means physical presence. It defines "presence" as "the part of
space within one’s immediate vicinity." Merriam-Webster’s Colle-
giate Dictionary 921 (10th ed. 1999).
Moreover, the context and structure of Rule 43 itself lends further
support to presence meaning physical presence. Rule 43(b) speaks of
being "initially present." Fed. R. Crim. P. 43(b). The rule then states
that judges may remove a defendant if the defendant "persists in con-
duct which is such as to justify exclusion from the courtroom" if the
judge warns "that disruptive conduct will cause the removal of the
defendant from the courtroom." Id. at R. 43(b)(3) (emphasis added).
It is difficult to imagine that a defendant can be "excluded" or "re-
moved" from the courtroom unless he was physically present in the
first instance. Indeed, the fact that the rule crafts several exceptions
to the presence requirement strongly suggests that the drafters of Rule
43 may have considered an exception for video sentencing, but did
not adopt it. Thus, the plain language and the context of Rule 43 indi-
cate that "presence" in Rule 43 means physical presence.
The only other circuit to address whether Rule 43 requires physical
presence at sentencing has agreed that presence means physical pres-
ence. See United States v. Navarro, 169 F.3d 228, 235 (5th Cir.
1999); see also Valenzuela-Gonzalez v. United States Dist. Ct. for
Dist. of Az., 915 F.2d 1276, 1280 (9th Cir. 1990) (finding that Rule
10 and Rule 43 combined require that a defendant be physically pres-
ent at arraignment). But cf. United States v. Washington, 705 F.2d
489, 497 n.4 (D.C. Cir. 1983) (stating in a footnote that presence at
voir dire might be satisfied by the use of closed circuit television).
The government maintains that district courts should have the dis-
cretion to permit video teleconferencing when circumstances warrant
it. The rule reflects a firm judgment, however, that virtual reality is
rarely a substitute for actual presence and that, even in an age of
advancing technology, watching an event on the screen remains less
than the complete equivalent of actually attending it. See Fed. R.
Crim. P. 43; see also Fed. R. Crim. P. 43 advisory comm. 1974 n.
(making clear that closed circuit television is not the same as actually
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being in the courtroom). The Sixth Amendment right of a defendant
to be present at trial best ensures the right to consult with counsel and
to confront adverse witnesses. See Illinois v. Allen, 397 U.S. 337, 338
(1970). Presence at sentencing serves additional purposes as well —
it gives a defendant one last chance to personally plead his case. If
we were to hold that video teleconferencing satisfies the presence
requirement of Rule 43, it would permit the government to substitute
such conferencing for physical presence for any defendant at any time
for any reason.
B.
The right to be present under Fed. R. Crim. P. 43, however, is not
absolute. The rule offers certain limited exceptions to the general
requirement of physical presence. Of these, two deserve scrutiny to
see whether the rule permits Lawrence’s absence — Rule 43(b)(2)
and Rule 43(b)(3).
First, Rule 43(b)(2) states that the defendant will be considered to
have waived the right to be present whenever a defendant "in a non-
capital case, is voluntarily absent at the imposition of sentence." Law-
rence’s situation, however, does not meet the plain language of this
exception. Language is not seasonal apparel; we are not free to cast
away the meaning of the text. There was nothing "voluntary" about
Lawrence’s absence in the sense that voluntary has been repeatedly
used by the Supreme Court. See, e.g., Ricketts v. Adamson, 483 U.S.
1, 8-11 (1987) (voluntariness is knowing and understanding the
waiver); Johnson v. Zerbst, 304 U.S. 458, 464-65 (1938) (knowing
and intelligent waiver required for voluntariness). Lawrence objected
when he learned of the proposed video sentencing. He even filed an
interlocutory appeal with this court to require the district court to
allow him to attend his sentencing hearing. And he renewed his objec-
tion at the sentencing hearing itself.
The voluntary waiver exception in Rule 43(b)(2) likewise encom-
passes the situation where a defendant impliedly waives his right to
be present by absconding before sentencing. Indeed, the Advisory
Committee Notes to this exception state that it is "intended to remedy
the situation where a defendant voluntarily flees before sentence is
imposed. Without the amendment, it is doubtful that a court could
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sentence a defendant who had been present during the entire trial but
flees before sentencing." Fed. R. Crim. P. 43 advisory comm. 1995
n. sub (b). Here, Lawrence did not flee. He was prevented from physi-
cally attending his sentencing hearing by order of the court.
The second potentially applicable exception is Rule 43(b)(3). This
section states that a defendant will be considered to have waived the
right to be present if the defendant, "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 exclu-
sion from the courtroom." Fed. R. Crim. P. 43(b)(3). Undoubtedly,
Lawrence engaged in disruptive conduct through his actions at the
previous sentencing hearing and by his subsequent misbehavior.
Nevertheless, the district court did not give Lawrence any opportu-
nity prior to the present sentencing hearing to show that he was not
disruptive. The plain text of the rule requires the district court to warn
defendants that if they continue to be disruptive, they can be removed
from the courtroom. Here, no such warning took place. Warning is an
integral part of the rule, as well as to the constitutional underpinning
of the rule itself. See Illinois v. Allen, 337 U.S. at 343; Bell v. Evatt,
72 F.3d 421, 432 (4th Cir. 1995). Rule 43(b)(3) essentially codified
Illinois v. Allen, which held that the constitutional right to physical
presence is not absolute, and that an unruly defendant could be
removed from the courtroom after a warning by the judge. The district
court would be well within its rights to warn this defendant that the
first sign of contumacious conduct would be deemed a waiver of the
right to be present under Rule 43(b)(3). However, in the absence of
such a warning, the defendant cannot be excluded before the proceed-
ing has begun. See Fed. R. Civ. P. 43(b)(2); 43(b)(3).
The United States urges us to create another exception to Rule 43,
one that would allow video teleconferencing at the discretion of the
district court. We respect the position of the district court, which was
understandably concerned that the value of Lawrence’s physical pres-
ence did not outweigh the risks associated with transporting him. In
extreme circumstances such as this, the rule should indeed provide
some flexibility. But it does not. We cannot travel where the rule does
not go. The rule’s general requirement of physical presence in 43(a)
is clear, and the exceptions in 43(b) do not apply here. We are left
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with the principle that imposing punishment on those who break the
law must be in accordance with the law. Our system knows no other
course.
III.
For the foregoing reasons, the sentence of the defendant is vacated
and the case is remanded for further proceedings consistent with this
opinion.2
VACATED AND REMANDED FOR RESENTENCING
2Because we must vacate his sentence and remand the case to the dis-
trict court, we do not address Lawrence’s arguments regarding the
upward departure that the district court imposed.
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