IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 94-60227

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DOUG KROUT,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the

Southern District of Texas

_________________________________________________________________ (June 19, 1995)

Before JOLLY, SMITH, and DeMOSS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

D oug Krout was convicted, i n absentia

, on a charge of

possession of more than fifty kilograms of marijuana with intent

to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C).

Krout was in the courtroom when the jury was selected, but the jury

was not sworn until trial resumed several days later. By then, he

was gone. He simply failed to appear on the day that the

government was sc h eduled to start presenting its case.

Nevertheless, the trial went forward, and the jury convicted him.

Now he argues that the district court erred by trying him in his

absence. He also argues that the court erred by dismissing a-2-

juror. For the reasons set out below, we hold that his absence

constituted a waiver of his right to be present at trial, that the

district court did not abuse its discret ion in resuming trial

proceedings without him, and that the dismissal of a juror did not

constitute reversible error. We first set out a few background

facts before reaching the primary question that this appeal

presents.

I

While driving through a border patrol checkpoint on April 21,

1992, Krout aroused the suspicions of border patrol agents and then

fled. A high-speed chase ensued that ended with Krout wrecking his

car. After a short chase on foot, Krout was arrested. During a

sea rch of his car, the border patrol found about eighty-three

kilograms of marijuana in the trunk.

The next month, a grand jury returned a one-count indictment

charging Krout with possession of more than fifty kilograms of

marijuana with intent to distribute, in violation of 21 U.S.C. §

841(a)(1) & (b)(1)(C). On June 30, 1992, the parties--with Krout

present--selected a jury and the court announced that trial would

begin on July 9. The jury was not sworn that day. Sometime

between jury selection and the presentation of evidence, a

magistrate judge dismissed a juror without notice to the parties.

The juror had informed the district court that he had scheduled an

out-of-town trip, and the court had advised the juror that he would

not be required to serve on the jury if the case was to be tried1 On July 6, 1992, a pretrial services officer tried to contact

Krout to inform him that the resumption of his trial had been moved

up to July 7, but was unable to reach him. The officer spoke to

Krout's sister, who informed the officer that Krout did not know of

the July 7 trial date but would appear on July 9.

On July 7, a different district court judge called the case

for proceedings to resume. Krout did not appear. Krout's attorney

advised the court that he had been unable to reach his client to

inform him of the July 7 date, and th at Krout did not return any

telephone messages left by his attorney. Because Krout was absent,

the court reset the case to the original July 9 date.

2 Krout also argues that the district court violated his

constitutional rights, specifically his Fifth Amendment due process right and his Sixth Amendment right to confront witnesses, when it

proceeded to trial without him. To the extent that Krout's

arguments have substance, they are co-existent with the validity of

his waiver under Rule 43 and accordingly are not considered

separately.

-3- between July 10 and 25. On July 9, the day for resuming the trial,

Krout failed to appear in cou rt. 1 After issuing a bench warrant

for his arrest and holding a hearing, the court granted the

government's motion pursuant to Fed. R. Crim. P. 43 to try Krout in

his absence. The jury returned a guilty verdict the next day.

Over a year later, on August 21, 1993, Krout resurfaced when

he was arrested in Houston on an unrelated criminal matter. He was

sentenced, and the judgment against him was entered, on March 29,

1994.

We now consider whether t he district court either erred in

proceeding to try him in his abse nce, 2 or in refusing to grant a

mistrial in connection with the dismissal of a juror. We will

discuss each of these matters in turn.-4- A

Codifying existing casela w, Rule 43 of the Federal Rules of

Criminal Procedure mandates the presence of the defendant "at the

arr aignment, 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 the sentence." The rule recognizes

exceptions, however: relevant here is its declaration that "[t]he

further progress of the trial

. . . shall not be prevented and the

defendant shall be considered to have waived the right whenever a

defendant, initially present

. . . is voluntarily absent after the

trial has commenced (whether or not the defendant has been informed

by the court or the obligation to remain during the trial)." Fed.

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

As an initial matter, we must consider an issue of first

impression in this circuit: when, for purposes of Rule 43, does a

trial commence. Under Rule 43(b), the defendant's voluntary

absence "after the trial has commenced" is deemed a waiver of his

right to be present. The district court stated, in its ruling on

t he government's motion to proceed in Krout's absence, that "the

case law establishes that the trial commences at the time the jury

voir dire process begins for purposes of Rule 43. This case has

commenced for purposes of Rule 43."

Relying upon double jeopa rdy cases and contending that

"[t]here is no rational distinction between double jeopardy and the

right to be present at tr ial in deciding when the trial begins,"3 In George

, the defendant was present for jury selection, then

failed to appear when trial res umed ten days later. G eorge

, 680

F.2d at 14. The defendant did, however, eventually return to

court. The district court, nevertheless, had resumed its

proceedings without him. The jury convicted him of the offenses

with which he was charged, and on appeal he made some of the same

arguments that Krout is presenting today. Id. at 14-15.

-5- Krout asserts, however, that the trial did not commence until the

jury was sworn.

We disagree with Krout's view of when trial begins under Rule

43. Other circuits that have considered the issue have held that,

for purposes of Rule 43, a trial commences when the parties begin

jury selection. T he First Circuit reasoned t hat Rule 43 did not

refer to the commencement of jeopardy, but instead referred to the

commencement of trial, and stated that "[w]ith regard to a

defendant's presence at trial, the trial commences 'at least' from

the time the work of impaneling jurors begins." United States v.

Miller

, 463 F.2d 600, 603 (1st Ci r.), cert. denied

, 409 U.S. 956

(1972). The Third Circuit applied M iller 's reasoni ng to a

situation that is extremely close to this case, 3 finding that trial

"commences" f or Rule 43 purposes when jury selection begins.

Government of the Virgin Islands v. George

, 680 F.2d 13, 15 (1982).

The Fourth Circuit, f urthermore, recently reversed a conviction,

basing its decision in part upon Rule 43's requirement that the

defendant be present during the impanelment of the jury. U nited

States v. Camacho , 955 F.2d 950 (4th Cir. 1992).4 We n ote that this interpretation is consistent with the

Supreme Court's reasoning in Crosby v. United States

, U.S.

, 113 S.Ct. 748 (1993), that looked to the plain language of Rule 43

to find implicitly that the impanelment of the jury is considered

a stage of the trial. We also note that the result we reach today

is in accord with our determination of when trial begins under the

Speedy Trial Act, 18 U.S.C. § 3161 et seq. S ee Unite d States v.

Howell

, 719 F.2d 1258 (5th Cir. 1983), cert. denied

, 467 U.S. 1228,

104 S.Ct. 2683, 81 L.Ed.2d 878 (1984).

-6- We find the reasoning of our sibling circuits to be persuasive

on this issue and hold that, for the pur poses of Rule 43 of the

Federal Rules of Criminal Procedure, trial begins when jury

selection begin s. The most compelling reason for this

interpretation is the plain language of the Rule itself. The Rule

simply states that the defendant is required to be present "at

every stage of the trial including the impaneling of the jury."

Indeed, our research, does not reveal a contrary interpretation of

the Rule. The trial, therefore, had commenced when Krout decided

to depart. 4

B

With the "commencement of trial" issue resolved, we must now

address Krout's argument that the district court erred when it

resumed trial witho ut him because he did not knowingly and

voluntarily waive his right to be present. He argues that because

there is no evidence that he knew that the trial could proceed

without him, or that he had the right to be present throughout his

trial, or that this right cou ld be waived, the trial court erred

when it carried on proceedings without him. We think that although5 In deciding whether to continue a trial in the absence of the

defendant, the court "must at the time make a record inquiry to

attempt to ascertain the explanation for the absence of the accused

and whether, balancing the likelihood that the trial could soon

take place with the def endant's presence against the undue

convenience or prejudice occasioned by a slight delay or a

rescheduling of the tria l. United States v. Beltran-Nunez , 716

F.2d 287, 291 (5th Cir. 1983). In the instant case, the district

court postponed the trial for two days, and after the case was

called a second time the court immediately conducted a Rule 43

inquiry in which the judge discussed the factors of United States

v. Benavides

, 596 F.2d 137, 139-40, and made appropriate findings.

-7- the district court properly engag ed in the balancing test of

determining whether to procee d in the absence of the defendant, 5

that question is irrelevant now because under the circumstances

before us it is clear that pursuant t o the very language of Rule

43, the defendant waived his right to be present at trial. Rule 43

states that "the defendant shall be considered to have waived the

right to be present when a defendant, initially present, . . . is

voluntarily absent after the trial has commenced (whe ther or not

the defendant has been informed by the court of the obligation to

remain during the trial)." Although Krout argues that the record

at the time of the he aring does not show unequivocally that he

voluntarily absented himself from the proceedings, we cannot find

error in the court's determination, especially in the light of the

fact that Krout was apprehended over one year later. Because the

defendant waived his right to be present at the proceedings, the

district court did not abuse its narrow discretion by resuming

trial.-8- C

Finally, Krout contends that the district court erred when it

refused to grant his motion for a mistrial because of the dismissal

of a juror by a magistrate judge, and his replacement with a duly

empaneled alternate juror by t he district judge, when trial

resumed.

Concededly, this case presents somewhat unusual circumstances.

Sometime between jury selection and resuming the trial, a

magistrate judge excused a juror without notifying the parties. In

denying Krout's motion for a mistrial, the district court stated "I

wish we had been consulted before [the juror] had been released,

but I don't believe that--since we have three alternates, I don't

believe that's grounds for a mistrial." Krout contends that he had

no opportunity to challenge the magistrate judge's decision and

that he believed that the juror was favorable to his cause.

The d istrict court's decision not to grant a mistrial is

reversible only if it abused its discretion. U nited States v.

Willis

, 6 F.3d 257, 263 (5th Cir. 1993). We review the decision to

substitute an alternate juror under Fed. R. Crim. P. 24(c) for

prejudice. See United States v. Phillips , 664 F.2d 971, 993 (5th

Cir. 1981 ). Without a showing of bias or prejudice, the court's

decision to replace a juror is not to be disturbed. U nited States

v. Rodriguez , 573 F.2d 330, 333 (5th Cir. 1978).

Krout does not explain precisely in what respect the district

court's decision constitutes an abuse of discretion that would-9-

require a reversal of his conviction. Instead, he simply restates

the facts, and quotes the district court's ruling. He also implies

that, because the juror was excused by a magistrate judge that was

acting without authority, the district court abused its discretion

in denying his motion for a mi strial. Then, Krout says, in

addition to abusing its discretion, the district court violated

Rule 43.

We find that Krout has failed to show bias or prejudice in the

court's decision, or that the decision prejudiced his case. "Every

[juror] replacement involves a change in the jury's composition.

How much weight should be given this factor is a matter for the

sound discretion of the trial judge." R odriguez

, 573 F.2d at 333.

Krout does not assert any grounds for impuning the motives of the

court, nor does he contend that the resulting jury was deficient.

Instead, he simply states a "belief" that the excused juror was

favorable to his case. Moreover, Krout had the opportunity to

challenge the qualifications of alternate jurors when they were

selected. Thus, he has failed to show bias or prejudice, and,

accordingly, the district court did not abuse its discretion in

refusing to grant a mistrial.

II

To sum up, we find that, for the purposes of Rule 43 of the

Federal Rules of Criminal Procedure, trial commences when the jury

selection process begins. We also find that because Krout

voluntarily absconded aft er the process had begun, and certainly-10-

now in the light of his greater than one-year absence, the district

court did not abuse its discretion in proceeding with the trial.

Finally, the district court did not abuse its discretion by

refus i ng to grant a mistrial when a juror was excused by a

magistrate judge because Krout failed to show how this decision

biased or prejudiced him. Thus, for the foregoing reasons, the

judgment of the district court is

A F F I R M E D.