Prior
Convictions
7206- Fraud and
False Statements: Prior Convictions
[77-1
USTC ¶9128]
United States of America
, Plaintiff-Appellee v. Leon A. Cohen, Defendant-Appellant
(CA-5),
U. S. Court of Appeals, 5th Circuit, No. 75-3966, 544 F2d 781,
1/3/77
, Affirming an unreported District Court decision
[Code Sec. 7206--result unchanged by '76 Tax Reform Act]
Crimes: Fraud and false statements: Offer in compromise: Form 656.--The
Court of Appeals upheld the taxpayer's conviction for filing a Form 656,
Offer in Compromise, that contained materially false statements. The
taxpayer had signed such form on February 13, but had failed to include
in his financial statement assets of $30,000 received by him on February
5 because the statement was "as of" January 30. The taxpayer's
contention that there was a variance between the facts proved and the
offense charged because the checks were properly excludable was found to
be without merit. The taxpayer's further claim that he was misled as to
the nature of the charges against him because of a last minute change in
the wording of the indictment also was rejected by the court. Finally,
the taxpayer's assertions that the trial court abused its discretion by
allowing into evidence a ten-year-old mail fraud charge and a
five-year-old letter relating to the taxpayer's state of mind with
respect to the discharge of his tax liability were found to be without
merit.
John
W. Stokes, United States Attorney, 56 Forsyth St., N. W., Atlanta, Ga.
30303, Scott P. Crampton, Assistant Attorney General, Gilbert E.
Andrews, Robert E. Lindsay, Daniel W. Schermer, Department of Justice,
Washington, D. C. 20530, for plaintiff-appellee. Taylor W. Jones, 250
Piedmont Ave., N. E., Atlanta, Ga. 30308, Ernest Morgan, P. O. Box 1288,
San Marcos, Tex. 78666, for defendant-appellant.
Before
AINSWORTH and RONEY, Circuit Judges, and ALLGOOD, District Judge.
RONEY,
Circuit Judge:
Defendant
Leon A. Cohen appeals his conviction for filing with the Internal
Revenue Service a Department of the Treasury Form 656, entitled
"Offer in Compromise," containing materially false statements,
in violation of 26 U. S. C. A. §7206(1). Defendant asserts four errors
on this appeal: (1) that there was a fatal variance between the proof
offered and the offense alleged in the indictment and that the evidence
was insufficient to show that his statements as to his assets were
false; (2) that a last minute substitution of indictments worked an
unfair deprivation of his right to be informed of the charges against
him; (3) that the district court abused its discretion in ruling that a
thirteen-year-old mail fraud conviction would be admissible to impeach
the defendant if he chose to testify; and (4) that a five-year-old
letter received in evidence was irrelevant and should have been
excluded. Finding these claims without merit, we affirm.
On
February 13, 1970
, Cohen who was over $150,000 delinquent in federal income tax payments,
completed an Offer in Compromise form for submission to the Internal
Revenue Service. He signed that document under a declaration stating
that "I have examined this offer, including accompanying schedules
and statements, and to the best of my knowledge and belief, it is true,
correct, and complete." With that document he also filed a
Statement of Financial Condition, which stated it was "as of"
January 30, 1970
. Neither document listed as assets three checks dated
February 5, 1970
and payable to Cohen, in a total amount of $30,000. Defendant stated on
the Offer in Compromise "I have no assets."
In
September of 1974, a five-count indictment was returned against the
defendant. The first four counts charged perjury in connection with
false statements made on various income tax returns. The fifth count
charged perjury in connection with the omission from the Offer in
Compromise of various assets supposedly in defendant's possession.
Approximately a week and a half before trial commenced, the Government,
with the district court's permission, substituted a new count five,
alleging solely the omission of the $30,000 in checks from the Offer in
Compromise. Before the trial actually began, the Government then
dismissed the four counts pertaining to false income tax returns.
Defendant was tried and convicted solely for omitting the three checks
worth $30,000 from the Offer in Compromise.
Variance
Between Indictment and Proof
The
indictment on which Cohen was tried alleged that:
[O]n
or about the 13th day of February, 1970 . . . Leon A. Cohen . . . did
wilfully and knowingly make and subscribe a Department of the Treasury
Form 656 entitled "Offer in Compromise," . . . together with
an attached and accompanying Department of the Treasury Form 433,
entitled "Statement of Financial Condition and Other
Information," . . . [which] said "Officer in Compromise"
and attachments thereto stated that he had total assets having a cost of
$12,502 and a fair market value of $1,619.50, whereas, as he then and
there well knew, he had substantial assets in addition thereto, to wit:
$30,000 consisting of three Federal Reserve Bank drafts . . ..
The
defendant alleges that the only document which definitely sets forth his
assets is the Statement of Financial Condition, which was "as
of"
January 30, 1970
. The defendant's position is that the checks dated
February 5, 1970
, were properly excludable from that document, and that when he
certified on
February 13, 1970
that the accompanying statement of Financial Condition was "true,
correct and complete," he was merely certifying that it reflected
his financial position as of the 30th of January, which he maintains it
did.
The
uncontested facts show that on
February 13, 1970
, the date of the Offer in Compromise, the defendant was in possession
of $30,000 in checks. Defendant did not disclose his possession of those
checks on the Offer in Compromise form. This failure to indicate
possession of those checks as of the date of the compromise offer was a
material omission, making the form something other than "true,
correct and complete." The Government proved precisely what was
alleged when it demonstrated that on
February 13, 1970
, Cohen "then and there well knew" that he had $30,000 in
Federal Reserve checks, which he failed to disclose. The omission of a
material fact renders such a statement just as much not "true and
correct" within the meaning of 26
U. S.
C. A. §7206(1), as the inclusion of a materially false fact. See United
States v. Jernigan [69-1 USTC ¶9397], 411 F. 2d 471 (5th Cir.), cert.
denied, 396
U. S.
927, 90 S. Ct. 262, 24 L. Ed. 2d 225 (1969); Siravo v. United States
[67-1 USTC ¶9446], 377 F. 2d 469 (1st Cir. 1967). Thus there is no
force to the contention that there was a variance between facts proved
and the crime alleged, and the evidence was sufficient to support the
conviction.
Substitution
of Indictments
The
defendant contends that he was misled as to the nature of the charges
against him because of the last minute change in the wording of the
indictment, and that therefore he should be afforded a new trial. The
defendant particularly protests what he conceives to be the change in
the operative date of the perjury count from
January 30, 1970
to
February 13, 1970
.
Since
the same offense was charged in both the original and substituted
indictments, the question of permitting the dismissal of the original
indictment and the related substitution was, in the first instance, for
the trial court. See F. R. Crim. P. 48;
United States
v. Perkins, 383 F. Supp. 922, 931 (N. D. Ohio 1974). Since the
various forms filed by the defendant were all part of one continuous
course of dealing with the Internal Revenue Service, and since the
original indictment made reference to the date of
February 13, 1970
, as well as
January 30, 1970
, the district court's determination that the substitution was not
prejudicial was not in error. United States v. Arradondo, 483 F.
2d 980, 983 (8th Cir. 1973), cert. denied, 415
U. S.
924, 94
S. Ct.
1428, 39 L. Ed. 2d 480 (1974).
Furthermore,
when the substitution was requested by the Government, the accompanying
motion explicitly stated "[t]he new indictment also contains some
clarifying language with respect to the date of the offense." The
new indictment was read aloud in open court to the defendant. At the
close of the Government's case, when the defendant claimed he learned of
the true import of the change, he did not request a continuance or the
opportunity to recall and reexamine any of the Government witnesses.
There is no indication that there was any secret or surprise involved in
the substitution. Given these factors, there was no prejudice to the
defendant resulting from the change in indictments which would warrant a
new trial.
Admissibility
of Prior Conviction
The
trial of this case commenced six days after the new Federal Rules of
Evidence became effective. Because there was no showing by either party
that the "application of the rules would not be feasible, or would
work injustice," the rules were applicable to the proceedings
below. See Rules of Evidence, Pub. L. No. 93-595, §1, 88 Stat.
1926 (1975). Rule 609 provides that a prior conviction cannot be
admitted without special court determination of probative value, if more
than 10 years have elapsed since the date of conviction or release,
whichever is the later date. The Rule provides:
(a)
General Rule. For the purpose of attacking the credibility of a
witness, evidence that he has been convicted of a crime shall be
admitted if elicited from him or established by public record during
cross-examination but only if the crime . . . (2) involved dishonestly
or false statement, regardless of the punishment.
(b)
Time Limit. Evidence of a conviction under this rule is not
admissible of a period of more than ten years has elapsed since the date
of the conviction or of the release of the witness from the confinement
imposed for that conviction, whichever is the later date, unless the
court determines, in the interests of justice, that the probative value
of the conviction supported by specific facts and circumstances
substantially outweighs its prejudicial effect. . . .
In
the instant case, the government notified the defendant that, should he
choose to testify, it intended to use a previous conviction for the
crime of mail fraud to impeach him during cross-examination. That
conviction was the result of a guilty plea by the defendant in
connection with the very same activities which gave rise to the tax
liability which he was trying to settle through his Offer in Compromise.
Defendant had been sentenced to three years imprisonment for the crime
of mail fraud, and had served from
April 10, 19
61 until
May 15, 19
62. Since the trial commenced in July of 1975, the time elapsed from the
date of release was just under 13 years, 2 months. Nonetheless, the
trial court ruled that this conviction would be admissible to impeach
the defendant if he testified, thus invoking the provisions of Rule
609(b).
Since
the effective date of the Rules, this Court has not had occasion to
consider the type of determination a district court must make under Rule
609(b) to admit into evidence a conviction over ten years old. On
questions involving the impeachment of a witness, the determination of
the district court is to be tested on review by the abuse of discretion
standard. Goddard v. United States, 131 F. 2d 220 (5th Cir.
1942); United States v. Allison, 414 F. 2d 407 (9th Cir.), cert.
denied, 396
U. S.
968, 90 S. Ct. 449, 24 L. Ed. 2d 433 (1969); S. Rep. No. 1277, 93d
Cong., 2d Sess., Rule 609(b) (1974). Under Rule 609, discretion must be
exercised by a specific standard. The Rule requires a finding on
specific facts and circumstances that prejudicial effect will be
outweighed by probative value.
In
evaluating the admissibility of the conviction the district court noted
the nature of the prior crime, the similarity between the offense for
which he was presently being tried and the offense for which he
previously entered a guilty plea, and that both the events to be
testified to by the defendant and the acts which constituted the crime
he was currently alleged to have committed occurred within ten years of
his release from confinement for the earlier crime.
Although
the trial judge did not explicitly so state, each of these factors goes
to the probative value of the prior conviction as impeachment evidence.
That the nature of the crime was one involving dishonesty indicates that
defendant might be the type of person who would not take the judicial
oath seriously. That the offenses were similar suggests that his denials
of current misconduct might not be as trustworthy as they normally would
in the absence of previous misconduct of the same kind. Because
defendant would be recounting events and acts relevant to the crime of
perjury that transpired during a period within ten years after his
release from confinement for mail fraud, the jury might believe that his
version of those events was colored by his still recent dishonest
conduct and was thus less than truthful.
In
United States v. San Martin, 505 F. 2d 918, 923 (5th Cir. 1974),
this Court observed that "prior crimes involving deliberate and
carefully premeditated intent--such as fraud and forgery--are far more
likely to have probative value with respect to later acts than prior
crimes involving a quickly and spontaneously formed intent."
Similarly such crimes are more probative on the issue of propensity to
lie under oath than more violent crimes which do not involve dishonesty.
See Ladd, Credibility Trends, 89 U.
Pa.
L. Rev. 166 (1940). Since mail fraud is within this category of
offenses, its probative value is enhanced.
Of
course, the assumption that a prior conviction demonstrates a propensity
on the part of the defendant to have acted on the present occasion in
conformity with the criminal character suggested by the previous
conviction is impermissible. See Fed. R. Evid. 404(b). This is
because our system of criminal justice focuses solely on the commission
of specific forbidden acts, rather than the punishment of those persons
who have a criminal or evil character. Unfortunately, the trial court
seemed to engage, at least partially, in this improper assumption, while
otherwise property [properly] focusing on the likelihood that the
previous conviction indicated a probable lack of veracity. Nonetheless,
in reviewing the factors relied on by the district court, it is apparent
that they all were relevant to the impeachment inquiry. Having isolated
these factors, the district judge then found on the record that they
formed "a basis for an exception and that justice would not be
counterbalanced against the defendant."
The
provisions of Rule 609 require that the court find that probative value
"substantially outweigh" prejudicial effect. Since the court
had the Rule before it when it made the determination that the prior
criminal activity of the defendant was admissible, the finding of the
district court can be interpreted as concluding that the usefulness of
this past criminal conviction substantially outweighed the possible
prejudice to defendant. That the court neither analyzed on the record
the nature of possible prejudice to defendant nor used the explicit
words of the Rule in terms of "substantially outweighing" is
not crucial. Sufficient evidence in the record indicates that the trial
judge made a thorough and thoughtful analysis of the issue and based his
conclusion upon various factors which were then before him. While Rule
609(b) may envision a more explicit proceeding with full findings
setting forth the quality and nature of any possible prejudice to the
defendant, we are satisfied that the district court acted within the
confines of the Rule and did not abuse its discretion in admitting the
prior conviction.
Admissibility
of a Five-Year-Old Letter
Defendant's
final contention concerns the admissibility of a five-year-old letter
which the Government offered in evidence to prove defendant's
willfulness. Because of the age of the letter the defendant claimed it
was irrelevant and inadmissible. The determination of relevancy is for
the trial judge, and will not be disturbed in the absence of a clear
showing of abuse of discretion. United States v. 110 Bars of Silver,
508 F. 2d 799 (5th Cir. 1975); United States v. Watts, 505 F. 2d
951 (5th Cir. 1974), vacated on other grounds, 422
U. S.
1032, 95
S. Ct.
2648, 45 L. Ed. 2d 688 (1975). Since there was ample indication that the
letter did in fact bear on defendant's state of mind, vis-a-vis the
matter of discharging his past tax liability, the district court did not
err in determining that the letter was relevant and admissible in
evidence.
AFFIRMED.
[88-2
USTC ¶9538]
United States of America
, Plaintiff-Appellee v. Samuel E. Rogers, Defendant-Appellant
(CA-4),
U.S. Court of Appeals, 4th Circuit, 87-5678,
8/2/88
, Affirming an unreported District Court decision
[Code Sec.
7206 --Results unchanged by the Tax Reform Act of 1986 ]
Criminal penalties: Tax return preparer: False statements.--Four
points of error raised by a tax return preparer who was convicted of
preparing false tax returns failed to persuade the appellate court to
overturn his conviction. His claim that a jury, not the lower court,
should have determined whether false information on the returns was
material was rejected in a ruling that materiality was a matter of law
left solely to the lower court. It was harmless error of the lower court
to proceed with a portion of the trial without the taxpayer in
attendance, since the taxpayer's absence was brief, the government's
case was strong, and trial transcripts were made available to the
taxpayer in case he wanted to challenge the unattended proceedings.
Evidence of the taxpayer's convictions in
North Carolina
for passing bad checks was properly admitted by the lower court, since
dishonesty and false statements were elements of the convictions.
Although the government's closing argument was harsh, it did not
constitute plain error, given the government's strong case.
Margaret
P. Currin, United States Attorney, Raleigh, N.C. 27611, William S. Rose,
Jr., Assistant United States Attorney General, Alan Hechtkopf, Gary R.
Allen, Robert E. Lindsay, Department of Justice, Washington, D.C. 20530,
for plaintiff-appellee. Patricia Ruth Moss, Deputy Federal Public
Defender, William E. Martin, Federal Public Defender, Raleigh, N.C., for
defendant-appellant.
Before
WIDENER, SPROUSE, and ERVIN, Circuit Judges.
ERVIN,
Circuit Judge:
Samuel
Rogers was convicted on twenty-four counts of preparing false tax
returns in violation of 26 U.S.C. §7206(2)
. 1 He raises
numerous issues on appeal. We affirm.
I.
Rogers
was in the business of preparing income
tax returns. These charges arose from ten 1979 returns and fourteen 1980
returns. Fifteen witnesses testified that
Rogers
prepared false tax returns for them. Several testified that they hired
Rogers
because they heard he could get them larger refunds and that his fee was
based on the size of the refund. All of them testified that he included
false information that they did not furnish him. Three testified in
Rogers
' absence because he was fifty minutes late on the second day of trial.
The
twenty-four returns were false in one or more usually recurring aspects.
These included excess exemptions, nonexistent political contributions,
false child care credits, improper residential energy credits,
fictitious uniform deductions, and other similar credits and deductions.
While two witnesses admitted that they knew of the falsities at the
time, the rest were in the dark because
Rogers
did not go over the returns with them.
Rogers
testified that he used only the information that his clients provided.
To
impeach his testimony, the government introduced a large number of
worthless check convictions. The prosecutor also made a number of
inflammatory remarks during closing argument, calling
Rogers
a liar, thief and crook who could not be believed. In a moment of
cinematic excess, he told the jury that
Rogers
was "a disease on society [a]nd you are the cure." Defense
counsel did not object to these remarks.
The
jury convicted him on all twenty-four counts. He raises four errors on
appeal. First, he argues that materiality of the false information is an
essential element of a §7206(2) violation that
should be decided by the jury. Second, he argues that Fed. R. Crim. P.
43(b) was violated when witnesses testified in his absence. Third, he
argues that the district court improperly allowed cross-examination
regarding his worthless check convictions. Finally, he argues that the
prosecutor's closing argument was improper. Finding no reversible error,
we affirm.
II.
In
crimes involving false statements, the materiality of the statement is
usually decided as a matter of law by the court. See e.g.,
United States
v. Farnham, 791 F.2d 331, 333 (4th Cir. 1986) (perjury); Nilson
Van & Storage Co. v. Marsh, 755 F.2d 362, 367 (4th Cir.), cert.
denied, 474 U.S. 818 (1985) (false statements to a government
agency). The same is true for §7206 . 2 See United
States v. Flake [84-2
USTC ¶9985 ], 746 F.2d 535, 537-38 (9th Cir. 1984), cert.
denied, 469 U.S. 1225 (1985)(§7206(1)
); United States v. Holecek [84-2 USTC ¶9638 ],
739 F.2d 331, 336-37 (8th Cir. 1984), cert. denied, 469 U.S. 1218
(1985)(§7206(2) ); United
States v. Greenberg [84-1 USTC ¶9509 ],
735 F.2d 29, 31 (2d Cir. 1984(§7206(1)); United States v. Whyte
[83-1 USTC ¶9185 ],
699 F.2d 375, 379 (7th Cir.1983)(§7206(1)
); United States v. Gaines, 690 F.2d 849, 858 (11th
Cir. 1982)(§7206(1) ); United
States v. Strand [80-1
USTC ¶9309 ], 617 F.2d 571, 573-75 (10th Cir.), cert.
denied, 449 U.S. 841 (1980)(§7206(1)
); United States v. Taylor [78-1 USTC ¶9474 ],
574 F.2d 232, 235 (5th Cir.), cert. denied, 439 U.S. 893 (1978)(§7206(1) ); United
States v. Romanow [75-1 USTC ¶9153 ],
509 F.2d 26, 28-29 (1st Cir. 1975)(§7206(1) ); but see United
States v. Null [69-2
USTC ¶9641 ], 415 F.2d 1178, 1181 (4th Cir. 1969)(§7206(1) ).
We
agree that materiality under §7206(2)
is a matter of law for the court to decide, not an issue of
fact for the jury. Null represents a narrow exception to the
general rule that materiality is an issue of law. In Null, this
court affirmed a conviction under §7206(1) where the trial
court had submitted the materiality issue to the jury. No one objected
to that aspect of the case; instead, the defendant argued that the court
should have further instructed the jury on a de minimis violation
defense. This court affirmed the submission of the more limited
materiality instruction as proper under §7206(1) . Placed in its
proper context, the Null holding does not control our decision as
to materiality under §7206(2)
, and we hold today that materiality is a matter of law for
the court to decide.
III.
On
the second day of trial,
Rogers
arrived about fifty minutes late, and three witnesses testified in his
absence. Before testimony began, the court asked defense counsel where
he was, but counsel did not know, and the court proceeded without
further inquiry. To limit the effects of his absence, the court made
transcripts of the testimony available the next day and allowed
Rogers
the opportunity to recall the three witnesses.
Rule
43 3 requires the
defendant's presence "at every stage of the trial," although a
continued presence is not required under certain circumstances. One such
circumstance is a voluntary absence without compelling justification,
which constitutes a waiver of the right to be present. See United
States v. Peterson, 524 F.2d 167, 184-85 (4th Cir. 1975), cert.
denied, 423
U.S.
1088, 424 U.S. 925 (1976). The right, however, "cannot cursorily,
and without inquiry, be deemed by the trial court to have been waived
simply because the accused is not present when he should have
been."
United States
v. Beltran-Nunez, 716 F.2d 287, 291 (5th Cir. 1983). The court
should try to find out where the defendant is and why he is absent, and
should consider the likelihood the trial could soon proceed with the
defendant, the difficulty of rescheduling and the burden on the
government. Peterson, 524 F.2d at 185; United States v.
Tortora, 464 F.2d 1202 (2d Cir. 1972). Typically, these factors will
favor proceeding without the defendant in multi-defendant trials only. Tortora,
464 F.2d at 1210 n.7.
The
court below inquired of defense counsel regarding
Rogers
' whereabouts, but did nothing else. This is not sufficient to establish
a waiver of his rule 43 right, particularly in a single defendant trial,
and the court abused its discretion by proceeding without further
investigation. A rule 43 violation, however, is subject to harmless
error analysis.
United States
v. Reynolds, 489 F.2d 4, 8 (6th Cir. 1973). We find the court's
erroneous decision to proceed to be harmless because of the brief nature
of
Rogers
' absence, the overall strength of the government's case, the
consistency throughout all of the testimony, and the availability of
transcripts the next day which he could have used by recalling the
witnesses for further cross examination.
IV.
On
cross examination, the prosecutor asked
Rogers
about more than twenty misdemeanor worthless check convictions in
North Carolina
.
Rogers
argues that the convictions were inadmissible because there was no
showing they "involved dishonesty or false statement." Fed. R.
Evid. 609(a). The government counters that under
North Carolina
law, worthless check convictions involve dishonesty or false statements
under all circumstances. We agree.
North Carolina
has two worthless check statutes. One
requires acting "with intent to cheat and defraud another."
N.C. Gen. Stat. §14-106 (1986). The second statute requires knowledge
that the maker or drawer has insufficient funds. N.C. Gen. Stat.
§14-107 (1986). The North Carolina Supreme Court has stated that under
§14-107, a check is a representation that there are sufficient funds
that, "if known to be untrue, is a false pretense." Nunn v.
Smith, 270 N.C. 374, 154 S.E.2d 497, 501 (1967). Therefore, both
statutes define crimes involving dishonesty or false statement, and
Rogers
' convictions for worthless checks were properly admitted under rule 609
as a matter of law. No additional showing was required.
V.
During
closing argument, the prosecutor made a number of inflammatory remarks
intended to gut whatever credibility
Rogers
had as a witness. While much of it was excessive and uncalled for,
defense counsel did not object so we review for plain error. See
United States
v. Garza, 608 F.2d 659 (5th Cir. 1979). Given the strength of
the government's case, we do not find that the argument affected
Rogers
' substantial rights. Fifteen witnesses testified similarly regarding
Rogers
' tax preparation scheme, so it is doubtful that the prosecutor's
remarks had any impact. They amounted to harmless overkill, not plain
error.
None
of
Rogers
' issues on appeal constitute reversible error, so we affirm his
conviction on all counts.
AFFIRMED.
1
In relevant part, 26 U.S.C. §7206
provides:
Any
person who -
(2)
Aid or assistance.--Willfully aids or assists in or procures, counsels,
or advises the preparation or presentation under, or in connection with
any matter arising under, the internal revenue laws, of a return,
affidavit, claim, or other document, which is fraudulent or is false as
to any material matter, whether or not such falsity or fraud is with the
knowledge or consent of the person authorized or required to present
such return, affidavit, claim, or document;
shall
be guilty of a felony. . . .
2
Subsection (1) directly prohibits false statements by the taxpayer while
subsection (2) applies to those, such as tax preparers, who aid or
assist the taxpayer in making such statements. Therefore, cases
involving materiality under either section are relevant to our inquiry.
3
Rule 43. Presence of the 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 shall not be prevented and the
defendant shall be considered to have waived the right to be present
whenever a defendant, initially present
(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), or
(2)
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.
(c)
Presence Not Required. A defendant need not be present in the following
situations:
(1)
A corporation may appear by counsel for all purposes.
(2)
In prosecutions for offenses punishable by fine or by imprisonment for
not more than one year or both, the court, with the written consent of
the defendant, may permit arraignment, plea, trial, and imposition of
sentence in the defendant's absence.
(3)
At a conference or argument upon a question of law.
(4)
At a reduction of sentence under Rule 35.
Concurring
Opinion
WIDENER,
Circuit Judge
I
concur in the result, and, as well, I concur in all of the opinion
except that I would give a different reason for reaching our result in
Part V thereof. I would not consider the remarks made by the United
States Attorney in closing argument because no objection was made;
neither was there a motion for mistrial, which should have been
required. United States v. Socony-Vacuum Oil Co., 310 U.S. 150,
238-239 (1940); Dennis v. General Electric Corp., 762 F.2d 365,
366-367 (4th Cir. 1985); United States v. Elmore [70-1 USTC ¶9275 ],
423 F.2d 775, 780-782 (4th Cir. 1970).