See United States v. Roya, 574 F.2d 386 (7th Cir.), cert. denied, ___ U.S. ___, 99 S.Ct. 172, 58 L.Ed.2d 165 (1978); United States v. Boney, 572 F.2d 397 (2d Cir. 1978); United States v. Davis, 564 F.2d 840 (9th Cir. 1977), cert. denied, 434 U.S. 1015, 98 S.Ct. 733, 54 L.Ed.2d 760 (1978). In United States v. Pastor, 557 F.2d 930 (2d Cir. 1977), the Second Circuit determined that the delegation in § 811 was in accordance with the clear statement of the congressional policy governed by precise standards consistent with the statement of policy in requiring specific findings as to the qualities and dangers of the substance as a condition precedent to regulation. 557 F.2d at 941.
It has long been settled that an accused enjoys a right both at common law and pursuant to the sixth amendment's confrontation clause to be present at all stages of trial. See Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353 (1970); Lewis v. United States, 146 U.S. 370, 373, 13 S.Ct. 136, 137, 36 L.Ed. 1011 (1892); Schwab v. Berggren, 143 U.S. 442, 448, 12 S.Ct. 525, 527, 36 L.Ed. 218 (1892); United States v. Hernandez, 873 F.2d 516, 518 (2d Cir. 1989); United States v. Pastor, 557 F.2d 930, 933 (2d Cir. 1977). It is also well settled that under the due process clauses of the fifth and fourteenth amendments a defendant must be allowed to be present at his trial "to the extent that a fair and just hearing would be thwarted by his absence."
“A defendant who deliberately fails to appear in court does so voluntarily,” and “his absence can be considered a ‘knowing’ waiver.” United States v. Tortora, 464 F.2d 1202, 1208 (2d Cir.) (“Tortora”), cert. denied, 409 U.S. 1063, 93 S.Ct. 554, 34 L.Ed.2d 516 (1972) ; see, e.g., United States v. Sanchez, 790 F.2d 245, 248–50 (2d Cir.) (“Sanchez”), cert. denied, 479 U.S. 989, 107 S.Ct. 584, 93 L.Ed.2d 587 (1986) ; United States v. Pastor, 557 F.2d 930, 933–34 (2d Cir.1977) (“Pastor” ). Waiver of a constitutional right, however, is not to be presumed; indeed, “[t]here is a presumption against” such a waiver. Brookhart
We cannot say that the district judge's finding that Sanchez was aware of the setting of his trial date was clearly erroneous. Cf. United States v. Pastor, 557 F.2d 930, 934 (2d Cir. 1977) (applying clearly erroneous standard to factual findings concerning defendant's absence from trial).
Thus, judicial analysis of the validity of delegations from Congress to the executive branch turns on the ability of courts to monitor compliance with congressionally determined policy. See, e.g., U.S. v. Alexander, 673 F.2d 287 (9th Cir.), cert. denied, 459 U.S. 876, 103 S.Ct. 168, 74 L.Ed.2d 139 (1982); U.S. v. Barron, 594 F.2d 1345 (10th Cir.), cert. denied, 441 U.S. 951, 99 S.Ct. 2180, 60 L.Ed.2d 1056 (1979); U.S. v. Gordon, 580 F.2d 827 (5th Cir.), cert. denied, 439 U.S. 1051, 99 S.Ct. 731, 58 L.Ed.2d 711 (1978); U.S. v. Roya, 574 F.2d 386 (7th Cir.) cert. denied, 439 U.S. 857, 99 S.Ct. 172, 58 L.Ed.2d 165 (1978); U.S. v. Pastor, 557 F.2d 930 (2d Cir. 1977); U.S. v. Davis, 564 F.2d 840 (9th Cir. 1977), cert. denied, 434 U.S. 1015, 98 S.Ct. 733, 54 L.Ed.2d 760 (1978); U.S. v. Piatti, 416 F. Supp. 1202 (E.D.N.Y. 1976).U.S. v. Pastor, 557 F.2d 930, 941 (2d Cir. 1977).
We have followed this teaching. See United States v. Lochan, 674 F.2d 960, 967 (1st Cir. 1982) ("[I]t is well-settled that a defendant is entitled to be present at his trial but that this right may be waived by voluntary and deliberate absence from the trial without good cause."); United States v. Miller, 463 F.2d 600, 603 (1st Cir.) (because "the [district] court's finding that [the defendant's] absence was voluntary was well supported, [t]he trial could properly continue despite his absence"), cert. denied, 409 U.S. 956, 93 S.Ct. 300, 34 L.Ed.2d 225 (1972); accord Dasher v. Stripling, 685 F.2d 385, 387 (11th Cir. 1982); United States v. Benavides, 596 F.2d 137, 139-40 (5th Cir. 1979); United States v. Pastor, 557 F.2d 930, 933-34 (2d Cir. 1977); Cureton v. United States, 396 F.2d 671, 676 (D.C. Cir. 1968). In addition, Fed.R.Crim.P. 43(b) permits a district court to proceed with the trial if a defendant who is initially present voluntarily absents himself after the trial has commenced.
A defendant's right to be present at his own trial has been codified in Rule 43 of the Federal Rules of Criminal Procedure, which requires that a defendant be present at critical steps in the criminal proceedings against him "including the impaneling of the jury." See United States v. Gordon, 829 F.2d 119, 123 (D.C.Cir. 1987); United States v. Taylor, 562 F.2d 1345, 1360 (2d Cir.), cert. denied, 432 U.S. 909, 97 S.Ct. 2958, 53 L.Ed.2d 1083, 434 U.S. 853, 98 S.Ct. 170, 54 L.Ed.2d 124 (1977); United States v. Pastor, 557 F.2d 930, 933 (2d Cir. 1977); Crutcher, 405 F.2d at 242. The right to be present at one's trial is, however, subject to waiver.
The government now moves to try Sanchez and the sisters Carvajal in absentia. A defendant may knowingly and intelligently waive his sixth amendment right to be present at his trial, United States v. Sanchez, 790 F.2d 245, 248 (2d Cir.), cert. denied, ___ U.S. ___, 107 S.Ct. 584, 93 L.Ed.2d 587 (1986), by voluntarily and deliberately absenting himself from the trial without good cause, United States v. Pastor, 557 F.2d 930, 933 (2d Cir. 1977). "It must clearly appear in the record . . . that the defendant was advised when proceedings were to commence and that he voluntarily, knowingly, and without justification failed to be present at the designated time and place before the trial may proceed in his absence."
United States v. Barron, 594 F.2d 1345, 1352-53 (10th Cir.), cert. denied, 441 U.S. 951, 99 S.Ct. 2180, 60 L.Ed.2d 1056 (1979). In Barron, we relied upon the reasoning of other circuit opinions holding to the same effect, especially United States v. Pastor, 557 F.2d 930 (2d Cir. 1977). Pastor is the first and leading circuit court case to consider the constitutionality of Congress' delegation to the Attorney General of the power to make permanent scheduling decisions; it analyzed the issue extensively.
As Jackson correctly points out, "an accused enjoys a right both at common law and pursuant to the sixth amendment's confrontation clause to be present at all stages of trial." United States v. Fontanez, 878 F.2d 33, 35 (2d Cir. 1989) (citing Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353 (1970); Lewis v. United States, 146 U.S. 370, 373, 13 S.Ct. 136, 137, 36 L.Ed. 1011 (1892); Schwab v. Berggren, 143 U.S. 442, 448, 12 S.Ct. 525, 527, 36 L.Ed. 218 (1892); United States v. Hernandez, 873 F.2d 516, 518 (2d Cir. 1989); and United States v. Pastor, 557 F.2d 930, 933 (2d Cir. 1977)). Moreover, the defendant's right to be present at trial also is implicated by the fair trial concerns of the fifth and fourteenth amendments, "`to the extent that a fair and just hearing would be thwarted by his absence.'"