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S t a t e s C our t of Appe al s for the Thir d C ir c uit

11-27-1998 

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. e du/thir dc ir c uit_1998/271Filed 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 parke d car as he made a right hand turn. Philadelphia Police O fficer Robert Ellis pulled in behind him and got out to in vestigate.
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 thefig ht continued, Ellis found a second gun on him. Eventua lly Mortimer was subdued and booked at the police stati on, signing a property receipt for two guns.

2At trial Mortimer stipulated to being a felon. The

government offered the testimony of the two arresti ng 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 detectiv e from the Philadelphia Police Department who investigated the case and took the statements of the arresting offic ers. 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 disappeare d. 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 er ror of constitutional magnitude is a question of law, a nd 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 bef ore a judge. When the judge is absent at a "critical stag e" the forum is destroyed. Gomez v. United States, 490 U.S . 858, 873 (1989). There is no trial. The structure has be en removed. There is no way of repairing it. The frame work "within which the trial proceeds" has been eliminat ed. 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 "f ound structural errors only in a very limited class of cases." John son v. United States, 117 S. Ct. 1544, 1549 (1997). While Judge Becker be lieves that the preferable manner of deciding this case is under th e harmless error standard of Chapman v. California, 386 U.S. 18 (196 7) (and he is satisfied that the patent error involved here was c learly not harmless beyond a reasonable doubt), he believes that under the facts of this case, the label "structural" is not inappropriate.

3We cannot, of course, anticipate every circumstance

under which the judge's absence may destroy the str ucture. The structure normally stands if the parties consen t to excuse the presence of a judge. Id. at 870; United States v. Love, 134 F.3d 595, 605 (4th Cir.), cert. denied, 1 18 S. Ct. 2332 (1998); Stirone v. United States, 341 F.2d 253 , 256 (3d Cir.), cert. denied, 381 U.S. 902 (1965). No co nsent
occurred here. Before whom was defense counsel to o ffer consent? That defense counsel continued her summati on cannot be construed as consent. Was she to stop in midsentence as it were and wait for such time as the j udge should reappear? She did her best under the circums tances but her carrying on in adversity cannot be turned i nto agreement to the judge's absence.

The government contends that the defense must show prejudice. The government relies on Love and Stiron e 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 o bsolete by Gomez, supra. An additional case, United States v. Pfingst, 477 F.2d 177, 195-96 (2d Cir.), cert. deni ed, 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 d uring jury deliberations. Id. at 196. A single case, Hefl in v. United States, 125 F.2d 700, 700 (5th Cir.), cert. denied, 316 U.S. 687 (1942), is cited by the government where the ju dge 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 p recedent is not close enough to be persuasive and it belongs to an era when structural error was not the criterion. Pr ejudice to the defendant from the jury inferring that the defe nse was not worth listening to may have occurred; it is not necessary on this appeal for the defendant to demon strate it. The structural defect determines the result.

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

4A True Copy:

Teste:

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

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