Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Hiramanek

United States District Court, E.D. California

April 5, 2017




         I. Procedural History

         This matter arises out of speeding citation, No. 4708212, issued to Defendant Adil Hiramanek on Big Oak Flat Road in Yosemite National Park on May 12, 2016. (ECF No. 1.) The citation asserts that Defendant was traveling at a speed of 57 miles per hour in a 35 mile per hour zone. (Id.) It advises Defendant that he must pay a forfeiture amount of $175.00, plus a $25.00 processing fee, or appear in Court. (Id.)

         Defendant's Initial Appearance on the charge was scheduled for August 9, 2016, at 1:00 PM, in the United States District Court for the Eastern District of California, Yosemite Courthouse. (ECF No. 2.) However, on August 8, 2016, Defendant filed a “Rule 43 Waiver Request” asking to appear remotely for his initial appearance and all ensuing court events, primarily because, he asserted, his car was old and not operational, the cost of traveling to Yosemite was disproportionately large compared to the forfeiture amount shown on the citation, and he was 55 years old and disabled. (ECF No. 3.) He sought the same relief for his witnesses, one of whom was 86 years old and disabled. (Id.) He noted that other Courts had granted him remote access.[1] (Id.)

         Defendant did not appear at the August 9, 2016 hearing. It subsequently was rescheduled to November 15, 2016 in Yosemite. (ECF No. 10.)

         On September 15, 2016, Defendant filed an amended motion seeking to waive his appearance pursuant to Rule 43. (ECF No. 5.) It appeared to be the same as the original request, except that it added another basis for the request, namely that Defendant was the sole caregiver for his 86 year old, severely disabled mother. (Id.) Also on September 15, 2016, Defendant requested an ADA accommodation to appear remotely based upon his “disability, ” which kept him from putting weight on his feet and required that he keep his feet elevated and iced. (ECF No. 6.) The Court denied the request for ADA accommodation finding no good cause had been shown for an accommodation. (Id.)

         On September 30, 2016, the Court denied Defendant's initial August 8, 2016 motion for a Rule 43 waiver, but granted his September 15, 2016 amended request insofar as Defendant was authorized, subject to further Court order, to appear at pretrial proceedings by telephone. (ECF No. 7.)

         Defendant appeared telephonically at the November 15, 2016 Initial Appearance, entered a plea of “Not Guilty, ” and requested discovery and a trial date; trial was set to begin January 25, 2017, in Yosemite. (ECF No. 10.) On stipulation of the parties, the trial date was continued first, and apparently because of an error by the Court, mistakenly, to March 1, 2017 (ECF No. 16), and then to April 26, 2017. (ECF No. 25.)

         On February 17, 2017, Defendant filed a renewed request for the right to appear remotely at trial under Rule 43. (ECF No. 17.) His grounds remained essentially the same-he and all of his witnesses were disabled. (Id.) This time, he referred to supporting documents (ECF No. 22), which he requested be filed under seal. (Id.) The Government filed opposition to the motion on February 23, 2017. (ECF No. 18.)

         On March 10, 2017, the Court denied the request for remote appearance, albeit without prejudice, and denied the request to seal documents because the documents Defendant requested be sealed were so very heavily redacted the Court could not evaluate their content for the purpose of passing judgment on either request. (ECF No. 27.) Defendant was given seven days to submit unredacted copies of the records. (Id.) He then filed another version of the documents on March 17, 2017, along with a “Revised Notice of Request to Seal Documents.” (ECF No. 28.) Remarkably, the newly submitted documents contained redactions.

         II. Legal Standards

         A. Remote Appearance Pursuant to Rule 43(b)(2)

         A defendant has a constitutional right to be present during all stages of his trial. Illinois v. Allen, 397 U.S. 337, 338 (1970). Rule 43 of the Federal Rules of Criminal Procedure incorporates this mandate, directing that a defendant “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.” Fed. R. Crim. P. 43(a).

         Defendants are “generally required to be present during all stages of the criminal process.” United States v. Christopher, 700 F.2d 1253, 1261 (9th Cir. 1983). However, the Court has discretion “to permit defendants in misdemeanor cases to absent themselves and, if so, to determine in what types of misdemeanors and to what extent.” Fed. R. Crim. P. 43 Advisory Committee's Note to 1944 Amendment. That the Court has the discretion to either require a defendant to be present or to permit his absence is absence in trials for misdemeanors or petty offenses. The language of this statute is discretionary.” United States v. Lange, 963 F.2d 380, 380 (9th Cir. 1992) (unpublished) (emphasis in original). In 2002, Rule 43(b)(2) was amended to “allow[] participation through video teleconference as an alternative to appearing in person” at an arraignment, plea, trial, or sentencing on a misdemeanor offense. Fed. R. Crim. P. 43 Advisory Committee Note to 2002 Amendment. However, “[t]he amendment does not require a court to adopt or use video teleconferencing.” Id. Rather, like a waiver of appearance, the language used is discretionary: participation by video conference is permitted only with the defendant's written consent and the Court's permission. Fed. R. Crim. P. 43(b)(2).

         Other Circuits have recognized the district court's narrow discretion to permit a defendant to voluntarily absent himself from trial. The Fifth Circuit, for example, identified factors that should be considered in deciding whether to allow a defendant to appear remotely, including: “(1) the possibility and effect of postponing the trial, (2) the potential burden on the government, (3) the possible prejudice to other defendants, (4) the possible burden on jurors, (5) the jeopardy (if any) to government witnesses, (6) the possible effect on the court's calendar, (7) the length of the absence requested, and of course (8) the relative importance of the asserted reason for the particular defendant's absence.” United States v. Meinster, 481 F.Supp. 1112, 1116 (S.D. Fla. 1979) (citing United States v. Benavides, 596 F.2d 137, 139-40 (5th Cir. 1979)). The Fourth Circuit has suggested trial courts exercising their discretion in a Rule 43 waiver determination should consider “whether a defendant must be present in order for the proceeding to be conducted efficiently and fairly.” United States v. Gonzales-Flores, 701 F.3d 112, 119 (4th Cir. 2012). With regards to the use of teleconferencing in lieu of defendant's physical presence, that Circuit recognized that Rule 43 “reflects a firm judgment . . . that virtual reality is rarely a substitute for actual presence and that, even in an age of advancing technology, watching an ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.