1 See United States v. Benavides, 596 F.2d 137 (5th Cir.1979)

(requiring an on-the-record inquiry balancing the likelihood that

the trial could soon be rescheduled with the defendant in

attendance against the burden on the government and the

inconvenience to the jury).

1 United States Court of Appeals,

Fifth Circuit.

No. 94-11125.

Rufus R. CLARK, Jr., Petitioner-Appellee,

v.

Wayne SCOTT, Director, Texas Dept. of Criminal Justice,

Institutional Division, Respondent-Appellant.

Dec. 8, 1995.

Appeal from the United States District Co urt for the Northern

District of Texas.

Before REAVLEY, JOLLY and WIENER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This appeal presents the question whether a state c ourt is

constitutionally required to conduct a Benavides balancing test 1

before proceeding to try a criminal defendant who voluntarily

absented himself fro m the trial after the jury was impaneled.

Rufus Ray Clark, Jr., represented by an attorney, was tried and

c onvicted i n absentia of burglary by the state of Texas. Upon

being later apprehended and returned to the court, he was sentenced

t o sixty years in prison, pursuant to the jury's recommendation.

In the subsequent state habeas proceedings, the Texas courts denied

relief and let his conviction stand. The federal district court,

however, granted Clark's petition for federal habeas relief. The

district court did so on th e basis that the state trial judge2

failed to conduct an on-the-record Benavides balancing test before

continuing the trial in Clark 's absence, and consequently denied

Clark his Sixth Amendment right to be present at trial.

On appeal, the state argues that the Benavides balancing test

is not a constitutional rule and is required only of federal courts

under Rule 43 of the Federal Rules of Criminal Pro cedure;

therefore, it is not applicable to state criminal proceedings.

We hold that the district court erred in ruling that the

Benavides balancing test is appli cable to state criminal

proceedings. It follows that Clark was not denied his

constitutional right to be present at trial. We therefore reverse

the district court, render for the state, and remand for entry of

judgment.

I

Clark was indicted for burglary by a Texas grand jury. He was

released on bond pending trial. Clark and his attorney were

present in court on Monday, October 15, 1990, when the jury was

selected and sworn in. Although the court instructed Clark to

return for trial on Thursday, October 18, he did not appear. The

prosecutor orally moved for a one-day continuance because the

complaining witness was absent on account of car trouble. Over the

objection of Clark's att orney, the court granted a continuance.

Out of the presen ce of the jury, Clark's attorney stated for the

record that he had talked with Clark the evening befo re and that

Clark knew to be at the trial on Thursday.

The following morning, Friday, October 19, Clark again failed3

to appear in court. Clark's attorney informed the court that he

had not been able to contact Clark and did not know why Clark was

absent. The trial judge denied defense counsel's motion for a

continuance and fo und Clark to be voluntarily absent from the

trial. The judge overruled the defense counsel's objection to the

case continuing in Clark's absence. Without conducting a B enavides

balancing test, the court proceeded with the jury trial in Clark's

absence. The jury found Clark guilty and recommended a sentence of

sixty years.

Approximately two weeks later, Clark was apprehe nded in

Lewisville, Texas, and brought before the trial court for

sentencing on November 2. Clark explained to the court that he did

not come to trial because he did not like the way his attorney was

handling the case. The record does not reflect any other excuse

for his absence. The trial court sentenced Clark to sixty years

confinement pursuant to the jury's recommendation.

II

The judgment of the trial court was affirmed on appeal. The

state court of appeals found that the trial court did not abuse its

discretion in continuing the trial in Clark's absence. Clark did

not seek further review in the Texas Court of Criminal Appeals.

However, he did file an application for writ of habeas corpus in

state district court. The court entered written findings and

recommended that the application be denied. Clark exhausted his

state remedies after seeking review of district court's decision in

the Court of Criminal Appeals, which denied his application without2 We note at the outset that the Texas Court of Criminal

Appeals has expressly rejected the mandatory applicability of the

Benavides belancing test. Moore v. State, 670 S.W.2d 259, 261

(Tex.Crim.App.1984).

4 a written order.

Clark then filed this federal habeas petition in federal

district court. The district court adopted the findings and

rec ommendations of the magistrate judge granting the petition.

Clark v. Collins, 870 F.Supp. 132 (N.D.Tex.1994).

III

A

The issue presented today is whether the Constitution

requires a state court to conduct an on-the-record Be navides

b alancing test before proceeding with a criminal trial agains t a

defendant who has voluntarily absented himself after the impaneling

of the jury. 2 We review this issue of law d e novo. Barnard v.

Collins, 958 F.2d 634, 636 (5th Cir.1992), cert. denied, --- U.S.

----, 113 S.Ct. 990, 122 L.Ed.2d 142 (1993).

The Sixth Amendment establishes a criminal defendant's right

to be present at trial and "to be confronted with the witnesses

against him...." U.S. Const. amend. VI; I llinois v. All en, 397

U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353 (1970). This

right to be present, however, is not absolute and can be waived by

the voluntary absence of the defendant. Taylor v. United States,

414 U.S. 17, 19-20, 94 S.Ct. 194, 195-96, 38 L.Ed. 2d 174 (1973)

(per curiam).

The Fifth Circuit, however, in United States v. Benavides, 5965

F.2d 137 (5th Cir.1979), held that an on-the-record balancing test

was required before proceeding with a criminal trial against a

defendant in absentia. Benavides was a direct appeal from a

criminal conviction in federal district court and thus governed by

Fed.R.Crim.P. 43. In that case, the defendant was present during

jury selection and knew of the trial date several weeks later, but

failed to appear. I d. at 138. The district court delayed the

trial overnight, but to no avail. After concluding that the

defendant was voluntarily absent, the district court proceeded with

the trial. I d. A panel of this court vacated the conviction,

however, and remanded for a new trial, declaring that a finding of

voluntary absence alone was insufficient. I d. at 139-40. The

panel explained that "the court has "only narrow discretion' in

deciding whether to proceed with a trial when the defendant is

voluntarily in absentia because the right to be present at one's

own trial must be carefully safeguarded." I d. at 139 (citations

omitted).

Following the Second Ci rcuit's lead in U nited States v.

Tortora, 464 F.2d 1202 (5th Cir.), cert. denied, 409 U.S. 1063, 93

S.Ct. 554, 34 L.Ed.2d 516 (1972), Benavides concluded that whether

the trial could proceed in the defendant's absence would "depend

upon the trial judge's determination of a complex of issues" and

that the following factors must be weighed: 1) the likelihood that

the trial could soon take place with the defendant present; 2) the

difficulty of rescheduling, particularly in multi-defendant trials;

3) the burden on the government in having to undertake two trials,3 The pertinent language of Rule 43 provided that "[i]n

prosecutions for offenses not punishable by death, the

defendant's voluntary absence after the trial has been commenced

in his presence shall not prevent continuing the trial to and

including the return of the verdict." Fed.R.Crim.P. 43 (amended

1974). The current version of Rule 43 provides:

6 again particularly in multi-defendant trials; and 4) the

inconvenience to the jurors. 596 F.2d at 139-40. The Fifth

Circuit reaffi rmed the necessity of conducting an on-the-record

balancing test in United States v. Beltran-Nunez, 716 F.2d 287 (5th

Cir.1983), another direct appeal case based on Fed.R.Crim.P. 43.

B

Clark argues that Benav ides and Beltran-Nunez concern a

constitutional right, not just a procedural one under Fed.R.Crim.P.

43. The court in Beltran-Nunez states:

The teaching of Benavides and the cited jurisprudence of other

circuits is the important constitutional right of a criminally

accused to be present at his trial cannot curso rily, and

without inquiry, be deemed by the trial court to have been

waived simply because the accused i s not present when he

should have been.

716 F.2d at 291 (emphasis added). Clark urges that this language

shows that the Benavides balancing t est is constitutionally

required, and thus applicable to state courts. We disagree.

The Supreme Court's decision in Taylo r v. United States is

dispositive of Clark's claim. In that case, the defendant failed

to return from a lunch recess. Although the district court

recessed the trial until the following morning, the defendant still

did not reappear. The court found him to be voluntarily absent and

continued with the proceedin gs in accordance with the plain

language of a prior version of Rule 43. 3 414 U.S. at 17-18, 94The further progress of the trial to and including the

return of the verdict shall not be prevented and the

defendant shall be considered to have waived the right

to be present whenever a defendant, initially present,

is voluntarily absent after the trial has commenced

(whether or not the defendant has been informed by the

court of the obligation to remain during the trial) [.]

Fed.R.Crim.P. 43(b)(1).

4 The Court looked to the D.C. Circuit for a statement of the

controlling rule for waiver:

[I]f a defendant at liberty remains away during his

trial the court may proceed provided it is clearly

established that his absence is voluntary. He must be

aware of the processes taking place, of his right and

of his obligation to be present, and he must have no

sound reason for remaining away.

Id. at 19 n. 3, 94 S.Ct. at 196 n. 3 (quoting Cureton v.

7 S.Ct. at 195.

The Supreme Court held that Rule 43 was constitutional as

applied and that the de fendant was not deprived of any

constitutional rights under the circumstances. I d. at 18, 94 S.Ct.

at 195. The Court declared that voluntary absence " "operates as

a waiver of his right to be present and leave s the court free to

proceed with the trial in like manner and with like effect as if he

were present. ' " 414 U.S. at 18, 94 S.Ct. at 195 (emphasis added)

(quoting Diaz v. United S tates, 223 U.S. 442, 455, 32 S.Ct. 250,

254, 56 L.Ed. 500 (1912)). We stress that the Court did not

condition its holding on a Benavides -type balancing test. The

Court focused exclusively on the question of waiver. "The right at

issue is the right to be present, and the question becomes whether

that right was effectively waived by his volu ntary absence.

Consistent with Rule 43 and Diaz, we conclude that it was." 4 I d.United States, 396 F.2d 671, 676 (1968)).

5 Even under our Rule 43 jurisprudence, the failure to

perform a full-blown Benavides balancing test may not be grounds

for reversal in every case. Beltran-Nunez, 716 F.2d at 291

("[H]ad an inquiry before the trial proceeded established for the

record that the defendant had deliberately absented himself and

that there was no reasonable probability he could be located

shortly, we would be loath to say that the district court abused

its discretion by failing to delay or reschedule the trial.");

United States v. Krout, 56 F.3d 643, 646 (5th Cir.1995)

("[A]lthough the district court properly engaged in the balancing

test ... that question is irrelevant now because under the

circumstances before us it is clear that pursuant to the very

language of Rule 43, the defendant waived his right to be present

at trial.")

6 This court has recognized that the right to be present

under Rule 43 is "broader than the confrontation protection of

the sixth amendment." United States v. Alikpo, 944 F.2d 206, 209

(5th Cir.1991) (citations omitted).

7 Our conclusion is supported by opinions from other circuits

involving habeas review where convictions in absentia were upheld

with no mention of any type of balancing test. See Finney v.

Rothgerber, 751 F.2d 858 (6th Cir.), cert. denied, 471 U.S. 1020,

105 S.Ct. 2048, 85 L.Ed.2d 310 (1985); Brewer v. Raines, 670

F.2d 117 (9th Cir.1982). In Finney, the Sixth Circuit looked to

Taylor and not to any type of balancing test in upholding the

state conviction. 751 F.2d at 862-63. In Brewer, the Ninth

Circuit vacated an order of habeas relief and held that the

inference of voluntariness created by the Arizona rule of

procedure was not unconstitutional as the rule provided for a

knowing and intelligent waiver. 670 F.2d at 119-20. These

decisions support our conclusion that the Benavides balancing

8 at 20, 94 S.Ct. at 196.

The Supreme Court's decision in Taylor leads us inexorably to

the conclusion that the imposition of a balancing test in Benavides

and Beltran-Nunez is not constitutionally required. 5 Consequently,

our cases must be understood as an exercise of our supervisory

powers over federal courts under Rule 43. 6 As such, we are

powerless to impose this test on state courts in federal habeas

actions. 7test is a procedural rule to govern a federal judge's discretion,

rather than a constitutional mandate.

9 We therefore hold that the Benavides balancing test is not

constitutional in scope. Because the state trial court's

continuation of the trial against Clark in absentia after a finding

of voluntary absence comports with constitutional requirements as

set forth by the Supreme Court in Taylor, we conclude that the

district court erred by granting Clark habeas relief.

IV

In the light of the foregoing, we therefore REVERSE the

district court, RENDER for the state, and REMAND for entry of

judgment.

REVERSED, RENDERED, and REMANDED for entry of judgment.