Decided: December 4, 2012
In February 2011, federal prosecutors charged the Defendant, Nicholas Gonzales-Flores, with running a methamphetamine distribution scheme and being an illegal-alien in possession of a firearm that had traveled in interstate commerce. The day before trial was set to begin, the district court held a phonetic hearing—regarding an alleged discovery violation by the government—in which both the Assistant U.S. Attorney and the Defendant’s counsel participated. The Defendant himself did not know about this over-the-phone hearing. The discovery issue was resolved in favor of the prosecution, and at trial, the Defendant was convicted of most of the charges against him.
The Defendant appealed his convictions, arguing that the district court violated Rule 43 of the Federal Rules of Criminal Procedure by conducting the pretrial hearing without the presence of the Defendant. The Fourth Circuit reviewed the text of the rule, which identifies the stages of a criminal prosecution at which a defendant must be present, such as, e.g., the initial appearance and the jury impanelment. The court took note of an exception under Rule 43(b)(3) that specifies that “a defendant need not be present at a ‘proceeding [that] involves only a conference or hearing on a question of law.’” The court determined that the question of whether the government had violated the particular discovery rule was a question of law for the trial judge, and thus, the pretrial hearing was covered under the Rule 43(b)(3) exception. Therefore, the Fourth Circuit held, the district court’s pretrial hearing had not been rendered improper by the Defendant’s absence.
-John C. Bruton, III