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United States v. Kesselman

United States District Court, Ninth Circuit

July 30, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
JANE M. KESSELMAN, Defendant.

HEATHER WILLIAMS, Bar #122664, Federal Defender, LINDA C. HARTER, Bar #179741, Chief Assistant Federal Defender, COURTNEY OXSEN, Certified Student Attorney, Sacramento, California, Attorneys for Defendant JANE M. KESSELMAN

MOTION TO PROCEED IN ABSENTIA UNDER Fed. R. Crim. P. 43(b)(2); ORDER

CAROLYN K. DELANEY, Magistrate Judge.

Pursuant to Rule 43 of the Federal Rules of Criminal Procedure, the defendant, JANE M. KESSELMAN, through her counsel, LINDA C. HARTER, Chief Assistant Federal Defender, hereby moves voluntarily to waive her appearance at bench trial on August 12, 2013 and sentencing should it occur immediately following trial. Ms. Kesselman will be out of the state in New Hampshire at that time for her recently deceased sister's memorial service on Sunday, August 11th. It is impracticable for her to return to Sacramento in time for trial under the circumstances. Due to the complexity of continuing the trial date considering the numerous co-defendants and co-counsels in this case, Ms. Kesselman would like to proceed in absentia.

Federal Rule of Criminal Procedure 43 sets forth the requirements concerning a defendant's presence at various hearings. Rule 43(b)(2) defines the circumstances under which a defendant's presence is not required, including misdemeanor offenses. A defendant need not be present if "[t]he offense is punishable by fine or by imprisonment for not more than one year, or both, and with the defendant's written consent, the court permits arraignment, plea, trial, and sentencing to occur by video teleconferencing or in the defendant's absence." Fed. R. Crim. Pro. 43(b)(2).

Ms. Kesselman and her co-defendants are charged with violating 18 U.S.C. ยง 1382, Entering military, naval, or Coast Guard property, a Class B Misdemeanor. The maximum punishment for this offense is $5, 000 fine and six months in jail or both. Counsel for the government has confirmed in its motion to oppose a jury trial that they will not seek incarceration, supervised release, or any discretionary conditions of probation if the defendants are convicted. Therefore, Ms. Kesselman meets the requirements of Rule 43(b)(2) and the Court can permit trial and sentencing to occur in her absence.

Defense counsel has spoken with Ms. Kesselman in depth about her rights at trial and the meaning of waiver of those rights. Ms. Kesselman understands that she has a right to testify and remain silent, and a right to confront witnesses at that trial. Additionally, Ms. Kesselman voluntarily waives her right to be present at sentencing, and understands that she necessarily waives her right to allocution.

Ms. Kesselman respectfully requests that the Court allow her to absent herself voluntarily at trial and sentencing.

ORDER

Defendant Jane M. Kesselman may voluntarily absent herself at the trial and sentencing in her case, presently set for August 12, 2013, pursuant to Federal Rule of Criminal Procedure 43(b)(2).


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