1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-27-1998

United States v. Mortimer

Precedential or Non-Precedential:

Docket 97-2058

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1998

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1998 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"United States v. Mortimer" (1998). 1998 Decisions. Paper 271.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/271
Filed 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 parked car 

as he made a right hand turn. Philadelphia Police Officer 

Robert Ellis pulled in behind him and got out to investigate. 

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 thefight 

continued, Ellis found a second gun on him. Eventually 

Mortimer was subdued and booked at the police station, 

signing a property receipt for two guns. 

 2 
At trial Mortimer stipulated to being a felon. The 

government offered the testimony of the two arresting 

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 detective from 

the Philadelphia Police Department who investigated the 

case and took the statements of the arresting officers. 

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 disappeared. 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 error 

of constitutional magnitude is a question of law, and 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 before a 

judge. When the judge is absent at a "critical stage" the 

forum is destroyed. Gomez v. United States, 490 U.S. 858, 

873 (1989). There is no trial. The structure has been 

removed. There is no way of repairing it. The framework 

"within which the trial proceeds" has been eliminated. 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 "found structural 

errors only in a very limited class of cases." Johnson v. United States, 

117 S. Ct. 1544, 1549 (1997). While Judge Becker believes that the 

preferable manner of deciding this case is under the harmless error 

standard of Chapman v. California, 386 U.S. 18 (1967) (and he is 

satisfied that the patent error involved here was clearly not harmless 

beyond a reasonable doubt), he believes that under the facts of this case, 

the label "structural" is not inappropriate. 

 3 
We cannot, of course, anticipate every circumstance

under which the judge's absence may destroy the structure. 

The structure normally stands if the parties consent to 

excuse the presence of a judge. Id. at 870; United States v. 

Love, 134 F.3d 595, 605 (4th Cir.), cert. denied, 118 S. Ct. 

2332 (1998); Stirone v. United States, 341 F.2d 253, 256 

(3d Cir.), cert. denied, 381 U.S. 902 (1965). No consent 

occurred here. Before whom was defense counsel to offer 

consent? That defense counsel continued her summation 

cannot be construed as consent. Was she to stop in midsentence as it were and wait for such time as the judge 

should reappear? She did her best under the circumstances 

but her carrying on in adversity cannot be turned into 

agreement to the judge's absence. 

The government contends that the defense must show 

prejudice. The government relies on Love and Stirone 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 obsolete 

by Gomez, supra. An additional case, United States v. 

Pfingst, 477 F.2d 177, 195-96 (2d Cir.), cert. denied, 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 during 

jury deliberations. Id. at 196. A single case, Heflin v. United 

States, 125 F.2d 700, 700 (5th Cir.), cert. denied, 316 U.S. 

687 (1942), is cited by the government where the judge 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 precedent 

is not close enough to be persuasive and it belongs to an 

era when structural error was not the criterion. Prejudice to 

the defendant from the jury inferring that the defense was 

not worth listening to may have occurred; it is not

necessary on this appeal for the defendant to demonstrate 

it. The structural defect determines the result. 

The judgment of the district court will be reversed and 

the case remanded for a new trial. 

 4 
A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 5