Opinion
The panel finds this case appropriate for submission without oral argument pursuant to Fed. R.App. P. 34(a) and Ninth Circuit Rule 34-4.
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Appeal from the United States District Court for the Western District of Washington Barbara J. Rothstein, District Judge, Presiding.
Before LEAVY and HAWKINS, Circuit Judges, and SHADUR, District Judge.
Honorable Milton I. Shadur, Senior United States District Judge for the Northern District of Illinois, sitting by designation.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36.3.
In this action, Timothy Allan Lockwood ("Lockwood") appeals the imposition of a restitution order making him jointly and severally liable for $300,000 in restitution to the Lummi Indian Casino. Lockwood contends that the court erred in holding the restitution hearing in his absence, without waiver of his presence and, in the alternative, that the court failed to consider his ability to pay in imposing the order.
"The Constitution, the fundamental principles of jury trial, and the Federal Rules of Criminal Procedure guarantee a defendant the right to be present at every stage of trial." United States v. Frazin, 780 F.2d 1461, 1469 (9th Cir.1986) (citations omitted). Restitution orders under 18 U.S.C. § 3664 are considered part of the criminal sentence, see United States v. Ramilo, 986 F.2d 333, 336 (9th Cir.1993), and thus a stage of trial. While the right to be present may be waived by the "voluntary absence" of the defendant, see United States v. Gagnon, 470 U.S. 522, 527-28 (1985); Fed.R.Crim.P. 43(b)(2), the waiver of a constitutional right must be voluntary, knowing and intelligent. See Johnson v. Zerbst, 304 U.S. 458, 464 (1938).
Caution is in order when a court is asked to accept a waiver of presence through counsel without clear evidence that the defendant himself was knowingly and voluntarily waiving his presence rights. See Turner v. Marshall, 63 F.3d 807, 815 (9th Cir.1995); United States v. Kupau, 781 F.2d 740, 742-43 (9th Cir.1986). This caution is reinforced in a restitution hearing where the defendant has the burden, and opportunity, to speak in his own defense. See 18 U.S.C. § 3664. In light of Lockwood's imprisonment at the time of the restitution proceedings, the absence of an explicit finding by the district court that Lockwood had waived his presence rights, and his counsel's failure to provide written confirmation, as the district court ordered, that Lockwood had made a "knowing and voluntary" waiver of his presence rights, we cannot conclude that a valid waiver of Lockwood's right to be present occurred.
Consequently, we VACATE the restitution order and REMAND to the district court to conduct a restitution hearing for this defendant.