Opinion
19-mj-1067(JJM)
2022-01-10
UNITED STATES of America, v. Kayla FRONCISZ, Defendant.
Misha A. Coulson, Timothy C. Lynch, Government Attorneys, U.S. Attorney's Office, Buffalo, NY, for United States of America. John Michael Ange, Ange & Ange, Buffalo, NY, for Defendant.
Misha A. Coulson, Timothy C. Lynch, Government Attorneys, U.S. Attorney's Office, Buffalo, NY, for United States of America.
John Michael Ange, Ange & Ange, Buffalo, NY, for Defendant.
DECISION AND ORDER
JEREMIAH J. MCCARTHY. United States Magistrate Judge
On November 17, 2021 defendant Kayla Froncisz failed to appear for sentencing following her plea of guilty to a misdemeanor violation of 21 U.S.C. § 844(a). [30, 31, 65]. At my request, counsel have briefed the question of whether she may be sentenced in absentia. [67, 68]. Having reviewed those submissions, for the following reasons I conclude that she may.
Bracketed references are to CM/ECF docket entries, and page references are to CM/ECF pagination.
BACKGROUND
On November 20, 2019 I accepted Froncisz's plea of guilty to a misdemeanor charge of possessing cocaine in violation of 21 U.S.C. § 844(a), and sentencing was scheduled for February 18, 2020 [30, 31]. Thereafter, I granted her motion [32] for release to her home in Canada on various conditions, including that she immediately advise the court, counsel and the pretrial services office before any change in her address and telephone number, that she appear for all proceedings as required, that she call pretrial services once per week, and that she return to court once per month. See Order Setting Conditions of Release [36].
After Froncisz failed to appear for a scheduled proceeding on January 29, 2020, I issued a warrant for her arrest [40], which remains outstanding. Subsequently I granted several unopposed motions by the government for adjournment of the sentencing date [44, 47, 50, 57, 60, 63]. The final adjournment scheduled sentencing for November 17, 2021 [63], at which Froncisz again failed to appear [65]. According to Froncisz's attorney, "[t]he only sentence date of which I can be certain Ms. Froncisz was aware is the one the Court gave her orally when the Court released her on December 16, 2019, two years and twenty-one days ago. After that, I had some text exchanges with my client, but those soon stopped. I am unaware if any agents have had contact with her, but I doubt it". Froncisz's Memorandum [67], ¶4.
DISCUSSION
"In a non-capital case, a defendant may waive his right to be present [at sentencing] as long as that waiver is knowing and voluntary." United States v. Salim, 690 F.3d 115, 122 (2d Cir. 2012) ; Fed. R. Crim. P. ("Rule") 43(c)(1)(B). Froncisz's attorney argues that " ‘[v]oluntarily’ must mean both that (a) she had been aware of the date, and (b) she refrained from appearing. If it cannot be established to the Court's satisfaction that Ms. Froncisz had been aware of her sentence date, can the Court find she was absent ‘voluntarily’? If I do not know that I am required to be at some location at a definite time, I cannot be said to have voluntarily abandoned the appointment if I fail to appear. I cannot be accused of shirking duties I do not know I have." Froncisz's Memorandum [67], ¶3 (emphasis in original). The government agrees: "[p]resumably, based upon defendant counsel's memorandum ... the defendant has had no knowledge of the upcoming sentencing date". Government's Memorandum [68] at 3.
However, under the Order Setting Conditions of Release [36] which Froncisz signed, she knew that she had the duty to keep her attorney, the court, and Pretrial Services aware of her current location and contact information, to telephone pretrial services weekly, and to appear in court monthly. Had she not shirked those duties, she would have known of the November 17, 2021 sentencing date. "The duty of inquiry haven arisen, [a party] is charged with whatever knowledge an inquiry would have revealed." TRW Inc. v. Andrews, 534 U.S. 19, 30, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) ; In re Kedia, 607 B.R. 101, 116 (Bk. E.D.N.Y. 2019) (a party "cannot bury its head in the sand like an ostrich and ignore facts that are readily available to it"). Therefore, I conclude that Froncisz both knowingly and voluntarily waived her right to be present at sentencing, and may be sentenced in absentia.
Froncisz's attorney suggests "even if the Court finds that the defendant's absence has been ‘voluntary’ ... then the result is that the issue falls to the Court's discretion, which the Court may exercise in either direction: sentence now or wait until she's obtained". Froncisz's Memorandum [67], ¶6. He asks me to exercise my discretion to delay sentencing until defendant is present for two reasons: "First, since I have had no contact with Ms. Froncisz - over two years - I cannot perform effectively as an advocate for her at sentence.... Second, the option of delaying sentence until the defendant is found, and thus allowing her advocate to represent her effectively, is supported by the fact that there is no urgent value that an immediate sentence would serve. Why does she need to be sentenced now, rather than later? She is not a dangerous person (no one has alleged or even suggested that). What terrible damage will follow if we wait? None." Id., ¶¶8, 9. I disagree. Sentencing is intended, inter alia , "to reflect the seriousness of the offense, to promote respect for the law, ... to provide just punishment for the offense", and "to afford adequate deterrence to criminal conduct". 18 U.S.C. § 3553(a)(2)(A), (B). Further delay in sentencing would only serve to frustrate these purposes. See Zedner v. United States, 547 U.S. 489, 501, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006) (noting the public interest in "preventing extended pretrial delay from impairing the deterrent effect of punishment:"); United States v. Parlato, 538 F. Supp. 3d 286, 291 (W.D.N.Y. 2021) ("Reasonably prompt dispositions of criminal charges ... serve the public interest[ ] of ... preserving the deterrent effect of sentencing").
Rule 32(b)(1) provides that "[t]he court must impose sentence without unnecessary delay". "Thus, while the choice of time for sentencing is generally within the discretion of the trial judge, that discretion is not unlimited." United States v. DeLuca, 529 F. Supp. 351, 354 (S.D.N.Y. 1981).
CONCLUSION
Accordingly, a Zoom conference will be held with counsel and a representative of the probation office on January 20, 2022 at 2:00 p.m. to set a date for sentencing.