USA v. Gregory Bethea

Filing

Filed opinion of the court by Judge Flaum. VACATED and REMANDED. William J. Bauer, Circuit Judge; Joel M. Flaum, Circuit Judge and Daniel A. Manion, Circuit Judge. [6920725-1] [6920725] [17-3468]

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-3468
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GREGORY BETHEA,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:17-cr-008 — James D. Peterson, Chief Judge.

____________________
ARGUED MARCH 29, 2018 — DECIDED APRIL 26, 2018
____________________
Before BAUER, FLAUM, and MANION, Circuit Judges.
FLAUM, Circuit Judge. Defendant-appellant Gregory Bethea
pleaded guilty to possessing a counterfeit access device in violation of 18 U.S.C. § 1029(a)(1). Due to serious health issues,
Bethea appeared via videoconference at his combined guilty
plea and sentencing hearing where he was sentenced to
twenty-one months’ imprisonment. He now argues his sentence should be vacated because Federal Rule of Criminal
Procedure 43(a) required him to be physically present during

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his plea. We agree, and thus reverse and remand for further
proceedings.
I. Background
In 2014, Bethea used fraudulently obtained credit cards to
purchase merchandise at retailers in Wisconsin. A grand jury
subsequently indicted him for possessing a counterfeit access
device in violation of 18 U.S.C. § 1029(a)(1). Bethea agreed to
plead guilty in May 2017.
On December 1, 2017, the district judge conducted a combined guilty plea and sentencing hearing. The judge presided
from his Madison, Wisconsin courtroom, while Bethea appeared via videoconference from Milwaukee because of his
health issues and limited mobility. 1 After conducting a plea
colloquy, the judge accepted Bethea’s guilty plea and moved
to sentencing. Although the judge acknowledged Bethea’s
health as a complicating factor in imposing a sentence, he remained bothered that Bethea’s illegal conduct allegedly continued well after his health issues supposedly worsened. Ultimately, the judge sentenced Bethea to twenty-one months’
imprisonment, which fell at the bottom of the Guidelines
range of twenty-one to twenty-seven months. Bethea timely
appealed, arguing that the district court was not permitted to
accept Bethea’s guilty plea via videoconference.

1

Specifically, Bethea requires dialysis for ten hours a day, five days a
week; suffers from pulmonary issues; recently had a heart stent implemented; is wheelchair-bound; and suffers from Charcot joint syndrome,
which makes him highly susceptible to fractures and dislocations from
even minor physical contact.

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II. Discussion

We review legal questions, such as whether the use of videoconferencing at a sentencing hearing violates the Federal
Rules of Criminal Procedure, de novo. See United States v.
Thompson, 599 F.3d 595, 597 (7th Cir. 2010). Bethea argues that
his combined guilty plea and sentencing via videoconference
violated Federal Rule of Criminal Procedure 43(a) because he
was not physically present in the courtroom during his plea.
He argues this was an unwaivable obligation, and the court’s
failure to adhere to the requirement constitutes per se reversible error. Thus, he maintains that even if he consented to the
form of proceeding, we must still vacate his plea and sentence.
Rule 43 of the Federal Rules of Criminal Procedure governs the circumstances under which a criminal defendant
must be present in the courtroom. The Rule states that “the
defendant must be present at … the initial appearance, the initial arraignment, and the plea.” Fed. R. Crim. P. 43(a) (emphasis added). The presence requirement is couched in mandatory language—“the defendant must be present.” Id. (emphasis added); see also In re United States, 784 F.2d 1062, 1062–63
(11th Cir. 1986) (“The rule’s language is clear; the rule does not
establish the right of a defendant to be present, but rather affirmatively requires presence.” (emphasis added)) 2.
True, the Rule’s presence requirement does contain several
exceptions and waiver provisions. See Fed. R. Crim. P. 43(b),
(c). These exceptions include, for example, when a proceeding
involves the correction or reduction of a sentence, see Fed. R.
2

Earlier cases quote a prior version of the Rule which used the language “shall be present.” The Rule was amended in 2002 to read “must be
present.” That change is immaterial to our analysis.

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Crim. P. 43(b)(4), or when the defendant is voluntarily absent
during sentencing in a noncapital case after initially attending
the trial or plea, see Fed. R. Crim. P. 43(c)(1)(B). But none of
these exceptions apply to the situation before us and are generally limited to the sentencing context.3 Moreover, Rule 43
was amended in 2011 to permit videoconference pleas for misdemeanor offenses. See Fed. R. Crim. P. 43(b)(2) (stating that
when the 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 … plea … to occur by video
teleconferencing or in the defendant’s absence”). That the
drafters did not include that option in the felony plea situation is telling. 4
No other circuit has addressed whether a defendant can
affirmatively consent to a plea by videoconferencing. 5 However, four circuits have addressed whether a district court can
3

For instance, a defendant can waive his absence at sentencing, but
he must have been initially present either at the plea or the start of trial.
See, e.g., United States v. Benabe, 654 F.3d 753, 771 (7th Cir. 2011) (“[T]he
language of Rule 43 does not provide for waiver of the right to be present
unless a defendant is ‘initially present at trial.’”) (quoting Fed. R. Crim. P.
43(c)(1)).
4

Likewise, Federal Rules of Criminal Procedure 5 and 10 were
amended in 2002 to permit initial appearances and arraignments to be
conducted by videoconference if the defendant consents. Rule 11, however, which governs the taking of guilty pleas, was not amended to permit
a defendant to agree to enter a guilty plea by videoconference.
5 Several district courts have addressed this precise issue and held that

a defendant cannot consent to video conferencing during a plea, even for
medical or financial hardship reasons. See, e.g., United States v. Brunner,
No. 14-CR-189, 2016 WL 6110457 (E.D. Wis. Sept. 23, 2016); United States
v. Klos, No. CR–11–233, 2013 WL 2237543 (D. Ariz. May 20, 2013); United
States v. Thomas, No. CR 06–40079, 2007 WL 1521531 (D.S.D. May 21, 2007);

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require it. All have held that Rule 43 obligates both the defendant and the judge to be physically present; the outcome
is the same whether it is the judge or defendant who appeared
via videoconference. See United States v. Williams, 641 F.3d 758,
764 (6th Cir. 2011) (“The text of Rule 43 does not allow video
conferencing” and the “structure of the Rule does not support
it”); United States v. Torres-Palma, 290 F.3d 1244, 1246–48 (10th
Cir. 2002) (“[V]ideo conferencing for sentencing is not within
the scope of a district court’s discretion.”); United States v. Lawrence, 248 F.3d 300, 303–05 (4th Cir. 2001); United States v. Navarro, 169 F.3d 228, 238–39 (5th Cir. 1999). We agree with our
sister circuits’ reasoning and extend it one step further. We
thus hold that the plain language of Rule 43 requires all parties to be present for a defendant’s plea and that a defendant
cannot consent to a plea via videoconference. 6
Our decision is supported by the unique benefits of physical presence. As the Sixth Circuit explained, “[b]eing physically present in the same room with another has certain intangible and difficult to articulate effects that are wholly absent
when communicating by video conference.” Williams, 641
F.3d at 764–65. Likewise, the Fourth Circuit reasoned that
“virtual reality is rarely a substitute for actual presence and
that, even in an age of advancing technology, watching an
event on the screen remains less than the complete equivalent
of actually attending it.” Lawrence, 248 F.3d at 304.

United States v. Jones, 410 F. Supp. 2d 1026 (D.N.M. 2005); United States v.
Melgoza, 248 F. Supp. 2d 691 (S.D. Ohio 2003).
6 Since we find Bethea’s presence at a plea an unwaivable requirement,

we need not address the government’s contention that Bethea invited the
error here or forfeited the claim.

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This Court has also recognized the value of the defendant
and judge both being physically present. In the context of revocation of supervised release via videoconferencing, we noted
that “[t]he judge’s absence from the courtroom materially
changes the character of the proceeding.” Thompson, 599 F.3d
at 601. The same is true if the defendant is the person missing.
“The important point is that the form and substantive quality
of the hearing is altered when a key participant is absent from
the hearing room, even if he is participating by virtue of a cable or satellite link.” Id. at 600. A “face-to-face meeting between the defendant and the judge permits the judge to experience ‘those impressions gleaned through … any personal
confrontation in which one attempts to assess the credibility
or to evaluate the true moral fiber of another.’” Id. at 599 (alteration in original) (quoting Del Piano v. United States, 575
F.2d 1066, 1069 (3d Cir. 1978)). “Without this personal interaction between the judge and the defendant—which videoconferencing cannot fully replicate—the force of the other rights
guaranteed” by Rule 43 is diminished. See id. at 600. Thus,
while it might be convenient for a defendant or the judge to
appear via videoconference, we conclude the district court
has no discretion to conduct a guilty plea hearing by videoconference, even with the defendant’s permission.
In so holding, we agree with the Tenth Circuit that a Rule
43(a) violation constitutes per se error. Torres-Palma, 290 F.3d
at 1248; see also Lawrence, 248 F.3d at 305 (automatically reversing for Rule 43 error); Navarro, 169 F.3d at 238–39 (same).
“Rule 43 vindicates a central principle of the criminal justice
system, violation of which is per se prejudicial. In that light,
presence or absence of prejudice is not a factor in judging the
violation.” Torres-Palma, 290 F.3d at 1248.

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The government’s reliance on our statement in United
States v. Benabe, that “[w]e see no reason to expand the limited
list of structural rights whose violation constitutes per se error
by adding the defendants’ Rule 43 right to be present at the
inception of trial,” 654 F.3d 753, 774 (7th Cir. 2011), is misplaced. First, in Benabe, the district court dealt with Rule 43(c),
which unlike Rule 43(a), does permit waiver of presence in
limited circumstances. See Fed. R. Crim. P. 43(c). Second, in
declining to require automatic reversal, we stressed “[i]t is important … to remember the precise error in question.” Id. at
773. In Benabe, the court’s error “was only the precise timing
of the exclusion order.” Id. As such, we held “[t]he timing of
the trial court’s decision to remove the defendants from the
courtroom, although a technical violation of Rule 43, was
harmless.” Id. at 774. Here, the precise error was more than
the mere timing of an order; indeed, the defendant was never
present. As such, Benabe is unhelpful.
We are sympathetic to the government’s concerns that a
defendant on appeal can complain of an accommodation that
was for his benefit below. We also agree with various courts
that have stated it would be sensible for Rule 43 to allow discretion in instances where a defendant faces significant health
problems. See, e.g., United States v. Brunner, No. 14-cr-189, 2016
WL 6110457, at *3 (E.D. Wis. Sept. 23, 2016). However, Rule
43(a) simply does not allow a defendant to enter a plea by videoconference. See Lawrence, 248 F.3d at 305 (“[T]he rule should
indeed provide some flexibility. But it does not. We cannot
travel where the rule does not go.”). Accordingly, we remand

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to the district court for the plea and resentencing of Bethea in
the physical presence of a judge. 7
III. Conclusion
For the foregoing reasons, we VACATE the judgment of the
district court and REMAND in accordance with this opinion.

7 Given that result, we need not address Bethea’s claim that the district

court erred in addressing Bethea’s health issues at the sentencing hearing.