USA v. Lahbib Achbani, 06-4190.  In December 2005, Lahbib Achbani pleaded guilty to making and uttering a counterfeit check in violation of 18 U.S.C. § 513(a). Mr. Achbani disappeared shortly before his scheduled sentencing hearing. The district court postponed the hearing several times while the Government searched for Mr. Achbani. Ultimately the court found that Mr. Achbani had absconded and sentenced him in absentia to 33 months’ imprisonment.

We affirm Mr. Achbani’s sentence. The district court took all the necessary steps to ensure that Mr. Achbani’s absence was voluntary, and the evidence overwhelmingly suggested that he had fled the jurisdiction to avoid imprisonment.

In late 2004, Mr. Achbani manufactured a $100,000 counterfeit check, deposited it and withdrew part of the funds to pay off various debts. Between the time of his indictment in May 2005 and his guilty plea that December, Mr. Achbani assisted in a government investigation that led to the recovery of nearly $2 million in stolen goods and the filing of charges against others.

In February 2006, however, the Government informed the probation officer and defense counsel of its recent discovery that, after his indictment, Mr. Achbani had passed additional counterfeit checks and had been charged with criminal trespass to a vehicle. These discoveries led the Government to propose a higher intended-loss amount than the parties originally had anticipated and to suggest that Mr. Achbani was not entitled to a reduction for acceptance of responsibility.

Mr. Achbani failed to appear for his sentencing that May, and defense counsel informed the court that he did not know of Mr. Achbani’s whereabouts. The court therefore asked counsel whether it was appropriate to sentence Mr. Achbani in absentia under Federal Rule of Criminal Procedure 43(c)(1)(B), which provides that a defendant waives his right to be present at sentencing if he is voluntarily absent.

Rule 43 guarantees a defendant the right to be present at both trial and sentencing. See Fed. R. Crim. P. 43(a); United States v. Agostino, 132 F.3d 1183, 1200 (7th Cir. 1997). Rule 43 was amended in 1995 to provide explicitly that a defendant in a non-capital case waives the right to be present at his sentencing if he is "voluntarily absent." See Fed. R. Crim. P. 43(c)(1)(B).  It appears that the 1995 amendment sought to eradicate the disparity in the courts’ treatment of defendants’ absences from trial and from sentencing. Consequently, we employ the same standard in determining whether the district court proceeded appropriately in this case.

We review for clear error a district court’s finding of voluntary absence.  In the trial context, we have explained that the district court should indulge every reasonable inference against a finding of voluntary absence. Before proceeding, the district court must explore on the record any "serious questions" raised about whether the defendant’s absence was knowing and voluntary.

For example, a defendant taken into legal custody is not voluntarily absent, see Larson v. Tansy, 911 F.2d 392, 397 (10th Cir. 1990); nor is a defendant who has been hospitalized due to illness, see United States v. Novaton, 271 F.3d 968, 996-97 (11th Cir. 2001).

As the case law makes clear, however, the district court’s duty to explore such possibilities varies to the extent that defense counsel suggests circumstances that raise a plausible doubt that the defendant’s absence was voluntary.

Here, the district court’s finding that Mr. Achbani was voluntarily absent was not clear error. The district court postponed Mr. Achbani’s sentencing two times over three months; it drew every possible reasonable inference in his favor; and it required that, before sentencing would proceed, the Government had to conduct an investigation into the alternative possibilities that counsel identified, especially Mr. Achbani’s immigration status. The evidence that the Government ultimately collected- particularly evidence that a person with Mr. Achbani’s name and birthday had flown to Austria shortly after he had disappeared-ruled out a "serious" possibility that Mr. Achbani was dead, hospitalized or in legal custody. Counsel proffered no additional evidence to demonstrate that Mr. Achbani’s absence was involuntary. Moreover, Mr. Achbani had learned of the Government’s discovery of his ongoing criminal activity, which certainly gave him ample incentive to flee.

AFFIRMED

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

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