                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-27-1998

United States v. Mortimer
Precedential or Non-Precedential:

Docket 97-2058




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Recommended Citation
"United States v. Mortimer" (1998). 1998 Decisions. Paper 271.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/271


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Filed November 27, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-2058

UNITED STATES OF AMERICA
       Appellee,

v.

MATTHEW MORTIMER
       Appellant.

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 97-293-1)

Argued: October 6, 1998

Before: BECKER, Chief Judge, NYGAARD, and NOONAN,*
Circuit Judges.

(Filed November 27, 1998)



_________________________________________________________________

*Honorable John T. Noonan, Jr., Senior Judge of the United States
Court of Appeals for the Ninth Circuit, sitting by designation.
       Michael R. Stiles, Esquire
       United States Attorney
       Walter S. Batty, Jr., Esquire
       Assistant United States Attorney
       Chief of Appeals
       Maryanne T. Donaghy, Esquire
        (Argued)
       Assistant United States Attorney
       Chief, Asset Forfeiture
       615 Chestnut Street
       Philadelphia, Pennsylvania 19106
        Attorneys for Appellee

       Robert Epstein, Esquire (Argued)
       Assistant Federal Defender
       David L. McColgin, Esquire
       Supervising Appellate Attorney
       Assistant Federal Defender
       Maureen Kearney Rowley, Esquire
       Chief Federal Defender
       Federal Court Division
       Defender Association of Philadelphia
       Suite 800 - Lafayette Building
       437 Chestnut Street
       Philadelphia, Pennsylvania 19106
        Attorneys for Appellant

OPINION OF THE COURT

NOONAN, Circuit Judge.

Matthew Mortimer appeals his conviction of being a felon
in possession of a firearm in violation of 18 U.S.C.
922(g)(1). On January 10, 1996 Mortimer hit a parked car
as he made a right hand turn. Philadelphia Police Officer
Robert Ellis pulled in behind him and got out to investigate.
Ellis confronted Mortimer who became combative and
struggled physically with Ellis, eventually pulling a gun on
him. Ellis knocked the gun from his hand. As thefight
continued, Ellis found a second gun on him. Eventually
Mortimer was subdued and booked at the police station,
signing a property receipt for two guns.

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At trial Mortimer stipulated to being a felon. The
government offered the testimony of the two arresting
officers and three other eyewitnesses to establish the facts
just stated. The defense challenged the credibility of the
witnesses and offered the testimony of the detective from
the Philadelphia Police Department who investigated the
case and took the statements of the arresting officers.
Mortimer was convicted.

Mortimer's appeal would be without merit except for a
singular circumstance of his trial. Defense counsel had
barely begun her summation when the prosecutor made an
objection only to withdraw it with the exclamation,"The
judge is not here." The judge, who had been present at all
of the prosecutor's argument, had indeed disappeared. He
had given no notice to counsel or the jury that he was
about to depart. He was simply gone. No good reason or
indeed any reason was given for his disappearance. He was
back on the bench in time to thank defense counsel for her
speech and call on the prosecutor for her rebuttal.

Whether the judge's absence from the bench is an error
of constitutional magnitude is a question of law, and our
review is plenary. See Lesko v. Owens, 881 F.2d 44, 50 (3d.
Cir. 1989), cert. denied, 493 U.S. 1036 (1990). On the facts
of this case we hold that structural error occurred. 1

A trial consists of a contest between litigants before a
judge. When the judge is absent at a "critical stage" the
forum is destroyed. Gomez v. United States, 490 U.S. 858,
873 (1989). There is no trial. The structure has been
removed. There is no way of repairing it. The framework
"within which the trial proceeds" has been eliminated. See
Arizona v. Fulminante, 409 U.S. 279, 309-10 (1991). The
verdict is a nullity. Gomez, 490 U.S. at 876 (1989).
_________________________________________________________________

1. Judge Becker notes that the Supreme Court has "found structural
errors only in a very limited class of cases." Johnson v. United States,
117 S. Ct. 1544, 1549 (1997). While Judge Becker believes that the
preferable manner of deciding this case is under the harmless error
standard of Chapman v. California, 386 U.S. 18 (1967) (and he is
satisfied that the patent error involved here was clearly not harmless
beyond a reasonable doubt), he believes that under the facts of this case,
the label "structural" is not inappropriate.

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We cannot, of course, anticipate every circumstance
under which the judge's absence may destroy the structure.
The structure normally stands if the parties consent to
excuse the presence of a judge. Id. at 870; United States v.
Love, 134 F.3d 595, 605 (4th Cir.), cert. denied, 118 S. Ct.
2332 (1998); Stirone v. United States, 341 F.2d 253, 256
(3d Cir.), cert. denied, 381 U.S. 902 (1965). No consent
occurred here. Before whom was defense counsel to offer
consent? That defense counsel continued her summation
cannot be construed as consent. Was she to stop in mid-
sentence as it were and wait for such time as the judge
should reappear? She did her best under the circumstances
but her carrying on in adversity cannot be turned into
agreement to the judge's absence.

The government contends that the defense must show
prejudice. The government relies on Love and Stirone where
consent made the difference and on two cases, Haith v.
United States, 342 F.2d 158, 159 (3d Cir. 1965) and United
States v. Boswell, 565 F.2d 1338, 1341-42 (5th Cir.), cert.
denied, 99 S. Ct. 81 (1978), which have been made obsolete
by Gomez, supra. An additional case, United States v.
Pfingst, 477 F.2d 177, 195-96 (2d Cir.), cert. denied, 93
S. Ct. 2779 (1973), invoked by the government, does not
bear on what happened here; it involved a judge's
announced absence from the state for a short time during
jury deliberations. Id. at 196. A single case, Heflin v. United
States, 125 F.2d 700, 700 (5th Cir.), cert. denied, 316 U.S.
687 (1942), is cited by the government where the judge was
unexpectedly absent when the jury and counsel were in the
courtroom. The absence was two or three minutes and
explained as a trip to an adjacent lavatory. This precedent
is not close enough to be persuasive and it belongs to an
era when structural error was not the criterion. Prejudice to
the defendant from the jury inferring that the defense was
not worth listening to may have occurred; it is not
necessary on this appeal for the defendant to demonstrate
it. The structural defect determines the result.

The judgment of the district court will be reversed and
the case remanded for a new trial.

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A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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