944 F.2d 206
UNITED STATES of America, Plaintiff-Appellee,v.Ken ALIKPO, Defendant-Appellant.
No. 90-2234.
United States Court of Appeals,Fifth Circuit.
Sept. 23, 1991.

Sunny Leigh Kapungu, Houston, Tex., for defendant-appellant.
James L. Turner, Paula Offenhauser, Asst. U.S. Attys., Ronald G. Woods, U.S. Atty., Houston, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before POLITZ and HIGGINBOTHAM, Circuit Judges, and BUNTON, District Judge.*
POLITZ, Circuit Judge:


1
Ken Alikpo1 appeals his conviction on four counts of conspiracy related to the importation, possession, and intended distribution of heroin.   Finding that the trial court erred by conducting most of the jury selection process in the absence of the defendant, without his express waiver of the statutory and constitutional right to be present or other reason justifying same, we vacate and remand.

Background

2
Alikpo, a Nigerian citizen and permanent resident alien of the United States, was arrested after substantial evidence implicated him in a scheme involving a second Nigerian man, Festus Syder.   Upon his arrival at Kennedy International Airport from a Lagos flight, Syder was met by United States Customs Service agents and consented to an x-ray examination which revealed 60 balloons within his gastrointestinal tract.   Syder was taken to a local hospital and there passed the balloons which were found to contain 370 grams of 95% pure heroin.


3
Syder agreed to assist law enforcement officials in apprehending his coconspirators in the drug-running scheme.   He made several telephone calls to Alikpo's Houston residence and arranged a meeting at Houston Intercontinental Airport.   Alikpo, Syder, and a third accomplice, Lavinius Ezikeuzo, were arrested at the airport.


4
Alikpo was indicted on four felony conspiracy counts.   Trial was set for March 10, 1989.   On that day, voir dire began with the court's remarks to the members of the venire.   The court was interrupted by the prosecutor:MR. DAVIDSON [AUSA]:  Judge, I apologize for interrupting you.   May we approach the bench?


5
THE COURT:  Yes, sir.


6
(At the bench)


7
THE COURT:  We were discussing the fact that Mr. Alikpo is not yet here.   And Mr. Todaro [defense counsel] says that he is willing to go ahead if he can, but not finish without him here.   Mr. Davidson has no problem with that.


8
MR. DAVIDSON:  As I mentioned, Judge, my only concern is making sure the record stayed clean.   As long as there is not a problem with him waiving it.


9
MR. TODARO:  As far as recognizing or do it by name.   And he will be here before we finish.   If we want to clear up that final point, okay.


10
MR. DAVIDSON:  That is fine.


11
THE COURT:  I am sorry.   I assumed that you all discussed it and you were willing to go ahead.


12
MR. DAVIDSON:  He told me, Judge.   I was not sure whether in criminal cases you could waive the defendant's presence in trial.


13
THE COURT:  We have had a lot of cases--


14
MR. DAVIDSON:  I am sorry.   Where they voluntarily absented themselves.


15
THE COURT:  Okay.


16
The district judge then continued his prefatory instructions to the jury venire and asked questions designed to elicit any indications of prejudice against suspects in drug trials, African immigrants, and the criminal justice system.   The court then permitted the AUSA to question the jury.


17
MR. DAVIDSON:  Thank you, Judge.   Good afternoon ladies and gentlemen.   My name is Charley Davidson.   I am an Assistant United States Attorney, and I am going to be the person that is going to be prosecuting the case that those 12 or 13 of you who are selected as jurors are going to be hearing this week.


18
Also seated with me during this trial is going to be Tony Singleton who is an agent with the US Customs Service.   Let me ask you all initially, does anybody here feel like they recognize me or Agent Singleton, or may have seen me before in a professional capacity or out on the street somewhere?


19
Likewise, does anybody here know Michael Todaro who is the attorney representing Ken Alikpo?   Anybody know either one of these individuals or think you've ever seen them before somewhere?


20
The AUSA then questioned several prospective jurors about their ability to deal with concepts such as evidentiary conflicts and conspiracy law.   At a point not disclosed in the record Alikpo entered the courtroom.   The first indication of his presence in the courtroom is in his counsel's comments to the venire.


21
MR. TODARO:  Thank you, Your Honor.


22
I am Michael Todaro.   As you probably imagined by now, I am the attorney for the defense.   This is my client here, Ken Alipko.


23
Following a few more remarks the jury was selected and evidence was presented, including the testimony of Alikpo.   After deliberating, the jury returned guilty verdicts for:  (1) conspiracy to aid and abet the importation of in excess of 100 kilograms of heroin;  (2) conspiracy to possess in excess of 100 kilograms of heroin;  (3) aiding and abetting in the importation of in excess of 100 kilograms of heroin;  and (4) aiding and abetting in the possession of in excess of 100 kilograms of heroin.  18 U.S.C. § 2;  21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846, 952(a), 960(b)(2).   Alikpo was sentenced to 120 months imprisonment on each count, to be served concurrently, and 60 months supervised release on each count.   The trial court recommended deportation.   Alikpo timely appealed.

Analysis

24
Alikpo first contends that the trial court erred by commencing trial in his absence.   We agree.   Presence at trial is a fundamental right.   While this right is waivable the record before us is, as the government concedes, "insufficient to support a finding of waiver."   The right may also be forfeited under certain circumstances, none of which exist herein.


25
Federal Rule of Criminal Procedure 43 sets out the specifics for a defendant's right to be present.2  It incorporates "[o]ne of the most basic of the rights guaranteed by the Confrontation Clause [which] is the accused's right to be present in the courtroom at every stage of his trial," Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353 (1970) (citing Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892)), and is recognized as broader than the confrontation protection of the sixth amendment.   3A C. Wright, Federal Practice and Procedure § 721 (2d ed. 1982 & 1991 Supp.)  ("Rule 43 has been understood to codify both a defendant's constitutional right and his common law right to be present throughout a trial;  its scope is therefore broader than the constitutional right alone.")  (footnote omitted);  cf. United States v. Gagnon, 470 U.S. 522, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985).   The right to be in attendance during jury selection has been specified in Rule 43 since its adoption in 1944.   It was then considered a restatement of existing law.   Fed.R.Crim.P. 43(a), Notes of Adv. Comm. on Rules p 1 (1944).


26
Rule 43 makes clear that a defendant has an absolute right to be present at the beginning of the trial.   While such activities as flight or in-court misbehavior may excuse absence once the trial has commenced, see Rule 43(b), convening a criminal tribunal without the presence of the defendant treads precariously close to the concept of trial in absentia which our system has long disdained.  United States v. Benavides, 596 F.2d 137 (5th Cir.1979);  see also Annotation, Validity of Jury Selection as Affected by Accused's Absence from Conducting of Procedures and Impaneling of Final Jury Panel for Specific Case, 33 A.L.R. 4th 429 (1984).   Set against this backdrop the AUSA understandably expressed concern regarding Alikpo's absence when the venire was seated.


27
While the right is, as noted, waivable, the ambiguous statement by the court, "Mr. Todaro says that he is willing to go ahead if he can, but not finish without him here," and the defense counsel's more ambiguous response, both made out of Alikpo's presence, do not suffice to constitute a valid waiver.   The long-standing presumption against waiver of fundamental rights embodied in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and the plain language of Rule 43, both militate against the commencement and continuation of the trial in light of the defendant's absence.


28
Conceding that there was no waiver the government suggests that the error was harmless.   We have recognized such harmless error, pursuant to the teachings of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), but only if we find beyond a reasonable doubt that the defendant's absence did not prejudice his substantial rights.  United States v. Gradsky, 434 F.2d 880 (5th Cir.1970), cert. denied sub nom., Roberts v. United States, 401 U.S. 925, 91 S.Ct. 884, 27 L.Ed.2d 828 (1971) & 409 U.S. 894, 93 S.Ct. 203, 34 L.Ed.2d 151 (1972).   In Gradsky, we rejected the appellants' contention that their absence from an evidentiary hearing, at which their attorney indicated their presence was not necessary and at which counsel was afforded ample opportunity for cross-examination, constituted reversible error.3  In dicta, we noted:


29
Furthermore, it is well established that Rule 43 must be considered with Rule 52(a), Fed.Rules Cr.Proc., which provides that harmless error is to be disregarded....  We ... reject appellants' contentions that their constitutional rights have been violated, and we find beyond a reasonable doubt that any possible error in their absence from the hearings did not affect their substantial rights.


30
Id. at 884 (citations omitted).   The case at bar markedly differs from the proceeding discussed in Gradsky.   Jury selection is a stage of trial which is specifically enumerated in Rule 43.   Equally if not more importantly, it is a stage at which the defendant can provide meaningful assistance to counsel, as distinguished from a proceeding involving solely points of law.


31
We inquired into the degree of error inherent in the defendant's absence from voir dire in Henderson v. United States, 419 F.2d 1277 (5th Cir.1970), a section 2255 habeas case.   During Henderson's absence


32
five things happened:  the government announced it had no challenges for cause.   Petitioner's attorney challenged one juror for cause, which challenge was granted.   Another juror was substituted and the United States announced it was satisfied.   Petitioner's attorney announced he was satisfied with the juror.   The United States announced that it had no peremptory challenges with respect to the remaining 12 jurors.   At this stage on discovery that defendant was not present, he was brought into the Judge's chambers and Court asked his counsel whether there "was any need * * * to go back through the preliminaries with respect to the exercise of challenges for cause."   To this his counsel answered with a categorical "No."   The momentary error of inadvertently allowing Petitioner to be absent brought no harm to him since nothing occurred to his detriment, the Trial Court offered an opportunity to go back through the entire procedure, which was declined, and Petitioner was present during the entire peremptory challenge period and only 6 of his 10 peremptory challenges were exercised.


33
Id. at 1278.   We perceive the instant case as presenting facts materially different from the errors determined harmless in Henderson.   The government argues that Alikpo's presence at the exercise of the jury strikes ameliorated the prejudicial effect of his absence.   While we agree that presence during the exercise of peremptory challenges is a critical stage of the voir dire process, the defendant is sorely handicapped and can be of little assistance to counsel when he has not had the opportunity to hear the venire's responses to questions and observe their reactions to him and to the proceedings.


34
Moreover, we cannot agree with the government's suggestion that Alikpo suffered no prejudice from absence at the beginning of the proceedings.   It does not stretch the limits of credulity to envision a juror being adversely affected, consciously or unconsciously, by an accused heroin smuggler cavalierly walking in late for his trial.   Our colleagues in the D.C. Circuit arrived at a similar conclusion in a recent holding concerning a defendant who missed all of voir dire.  United States v. Gordon, 829 F.2d 119 (D.C.Cir.1987).   Distinguishing cases in which defendants, although present for questioning of the venire, had merely not participated in exercise of peremptory challenges, the court wrote:


35
Additionally, there is the question of what went on in the jurors' minds as they spent the first several hours of the trial wondering where the defendant was.   The fact that a defendant, sitting at counsel table, does not go to the bench during a small portion of the voir dire quite likely escapes the notice of the jury.   A defendant, however, who does not make his appearance until midway through the first day of his trial is surely noticed by the jury, and it is not beyond a reasonable doubt that "the jury speculated adversely to the defendant about his absence from the courtroom."   To hold Gordon's absence harmless under these circumstances therefore would be to "reconstruct what might have eventuated had he been present, when that cannot truly be reconstructed with a degree of certainty necessary to avoid the reasonable possibility of prejudice."


36
Id. at 128-29 (quoting Wade v. United States, 441 F.2d 1046, 1050 (D.C.Cir.1971)).


37
Further, we have the anomalous situation of the prosecutor inadvertently underscoring the defendant's absence by asking the venire if anyone knew or recognized the prosecutor, the case agent, or defense counsel.   What about the defendant?4  The burden of proving harmless error is an onerous one.  Chapman; Gradsky.   The government has not borne that burden herein.5


38
The convictions are VACATED and the matter is REMANDED for a new trial.



*
 Chief District Judge, Western District of Texas, sitting by designation


1
 The record reflects varied spellings of defendant's surname, including "Alipko" and "Aliko."   We use herein the spelling found on the docket sheet and in the brief of his counsel


2
 Rule 43 provides 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 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 his 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.


3
 Since the Gradsky case, Rule 43(c) has been amended to permit the defendant's absence, without waiver, "[a]t a conference or argument upon a question of law."   The hearing considered in Gradsky concerned the issue of whether illegally-obtained electronic surveillance of a codefendant's telephone conversations had tainted the convictions of the remaining codefendants.   Whether such a hearing would constitute "an argument upon a question of law" is not a question now before us.   See generally United States v. De Los Santos, 819 F.2d 94 (5th Cir.1987)


4
 At no time was the venire asked whether or not they knew or recognized Alikpo, except for defense counsel's invitation for the venire to feel free to bring up information they might feel relevant on their ability to deal fairly and impartially with his client


5
 As a consequence of today's disposition we need not address the appellant's complaint about remarks made by the prosecutor during closing argument


