United States v. Terrance P. Daniels

In the United States Court of Appeals For the Seventh Circuit December 1, 2015 Before

DIANE P. WOOD, Chief Judge RICHARD A. POSNER, Circuit Judge JOEL M. FLAUM, Circuit Judge FRANK H. EASTERBROOK, Circuit Judge MICHAEL S. KANNE, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge DIANE S. SYKES, Circuit Judge DAVID F. HAMILTON, Circuit Judge

Nos. 13-2078 & 13-2982 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TERRANCE DANIELS and DAVEED DEAN, Defendants-Appellants. ____________________ 2 Nos. 13-2078 & 13-2982 Appeals from the United States District Court for the Northern District of Illinois, Eastern Division.

No. 09 CR 446 — Samuel Der-Yeghiayan, Judge. ____________________

ORDER On October 14, 2015, defendants-appellants filed a peti- tion for rehearing and for rehearing en banc, and on Novem- ber 6, 2015, plaintiff-appellee filed an answer to the petition.

A vote of the active members of the court on whether to grant rehearing en banc was requested and a majority of the judges have voted to deny the petition.1 The petition is therefore DENIED.

1Judge Posner, Judge Rovner, and Judge Williams voted to grant the petition for rehearing en banc.

Nos. 13-2078 & 13-2982 3 WILLIAMS, Circuit Judge, with whom POSNER and ROVNER, Circuit Judges join, dissenting from denial of rehearing en banc. “One of the most basic of the rights guaranteed by the Confrontation Clause [of the Sixth Amendment] is the ac- cused’s right to be present in the courtroom at every stage of his trial.” Illinois v. Allen, 397 U.S. 337, 338 (1970). A defend- ant can lose that right by being disruptive—but only if he is very disruptive.

In Allen, the defendant badgered prospective jurors, tore up defense counsel’s files and threw them on the courtroom floor, explicitly said that his actions were designed to pre- vent trial, and (most outrageously) threatened to kill the judge. Id. at 339–40. Finding that he lost his right to attend trial, the Court held that while “courts must indulge every reasonable presumption against the loss of constitutional rights,” a defendant can be excluded “if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conduct- ing himself in a manner so disorderly, disruptive, and disre- spectful of the court that his trial cannot be carried on with him in the courtroom.” Id. at 343. In my view, the panel opin- ion distorts this standard and inverts the presumption, evis- cerating an important constitutional right.

Daniels sat silently at 10 of the 13 pretrial hearings he at- tended; this is not mentioned by the panel. More important- ly, he did not continue any disruptive behavior, much less be- havior that was so disruptive that trial could not go on in his presence. Instead, he annoyed the judge by: filing numerous documents on his own, despite being represented by a law- yer; taking frivolous legal positions characteristic of so-called “sovereign citizens”; and giving long, unintelligible answers 4 Nos. 13-2078 & 13-2982 to questions that the judge asked him directly. He was dis- ruptive one time, by yelling, “Are you denying me my right to speak?” at the end of a pretrial hearing. The district judge seized the opportunity and decided to exclude Daniels un- less he affirmatively promised not to be disruptive at trial.

So the worst thing Daniels did was yell at the end of a pretrial hearing. If that justifies his exclusion then Allen’s di- rective to “indulge every reasonable presumption against the loss of constitutional rights” is meaningless. See United States v. Ward, 598 F.3d 1054, 1058 (8th Cir. 2010) (holding it is an abuse of discretion to exclude a defendant where his disruptive behavior consists of talking too loudly in the courtroom during trial); Tatum v. United States, 703 A.2d 1218, 1223–24 (D.C. 1997) (vacating conviction where de- fendant was excluded based on laughing and nodding his head in response to witnesses’ answers and clarifying a wit- ness’s answer for the court reporter); see also Jones v. Murphy, 694 F.3d 225, 238 (2d Cir. 2012) (noting that the defendant “insisted on speaking personally with the court despite be- ing represented by counsel and [] persisted in arguing with the court about its rulings—behavior that, while contentious and improper, would not in itself warrant the extreme re- sponse of involuntary exclusion”).

Aside from the single incident of yelling at a pretrial con- ference, the conduct mentioned by the panel is entirely irrel- evant. By filing numerous documents, advancing silly legal theories, and giving unintelligible answers to the judge’s questions, Daniels no doubt annoyed the judge more than the typical criminal defendant. But none of that provides any basis for finding that trial could not be carried on in his pres- ence. Importantly, all of Daniels’s conduct took place in pre- Nos. 13-2078 & 13-2982 5 trial hearings and much of it resulted from the judge’s own decision to ask questions of Daniels directly, even though he had a lawyer. Of particular note, the panel erred by relying on Daniels’s refusal to promise that he would not be disrup- tive. Allen requires courts to indulge every reasonable pre- sumption against the loss of constitutional rights. 397 U.S. at 343. The presumption is turned on its head if a judge, an- noyed and sensing potential trouble, can bar a defendant from trial unless he affirmatively promises (in a manner that convinces the judge) that he will behave.

Excluding a defendant from his own criminal trial is “[d]eplorable.” Allen, 397 U.S. at 347. Because the panel opin- ion makes it too easy to do so, we should have reheard this case en banc and corrected the error. I respectfully dissent from our failure to do so.