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Five appellate courts have considered whether videoconferencing qualifies as "presence" for sentencing. Five appellate courts have ruled that it doesn't.
The Second Circuit Court of Appeals has yet to actually consider this issue, but nonetheless ruled this week that a Bin Laden aide was not prejudiced by attending his resentencing via videoconference, reports The Associated Press.
Mamdouh Mahmud Salim was awaiting trial in United States v. Usama Bin Laden, et al., in which numerous alleged al Qaeda members were charged with a conspiracy to kill Americans in two 1998 embassy bombings. On November 1, 2001, Salim and his cellmate, Kholfan Khamis Mohamed, planned to take a guard’s keys so that Salim could attack his lawyers in an attorney-inmate meeting room. Their goal was to force Salim’s attorneys to withdraw their representation so that District Judge Sand, who was presiding over the terrorism case and previously had denied Salim’s repeated requests for new lawyers, would have to grant substitute counsel.
The plot was foiled, but not before Salim had severely injured Officer Louis Pepe.
The attack resulted in additional charges, which were indicted separately from the terrorism case. Salim was initially sentenced to 384 months for the prison attack, and later resentenced to life in prison due to an error regarding a terrorism enhancement.
Salim challenged his resentence, which he attended by video conference, primarily on the ground that his right to be physically present in court was violated. Though Salim had waived his right to be present under Federal Rule of Criminal Procedure Rule 43(c)(1)(B), he argued on appeal that his waiver of physical presence was not voluntary because it was premised on his fear of abuse by correctional officers. (Salim’s statements to the court during resentencing also supported his claim.)
A criminal defendant has the right to be present during resentencing. Though the Second Circuit Court of Appeals has not previously ruled on the issue of whether “presence” excludes videoconferencing, the court assumed — without deciding — that presence is not satisfied by videoconferencing because the government and Salim both argued from that premise. The court also noted that the Sixth, Tenth, Fourth, and Fifth Circuits are unanimous that videoconferencing does not qualify as presence.
The Second Circuit Court of Appeals agreed with Salim that the government had not satisfied its burden of proving that he waived his right to be present, and that the district court erred in finding a valid waiver.
The erroneous denial of a defendant’s right to be present during resentencing is grounds for reversal only if the defendant suffered prejudice as a result of the deprivation. Here, the Second Circuit found that Salim was not prejudiced by teleconferencing because he didn’t satisfy the third and fourth prongs of the Supreme Court’s U.S. v. Marcus prejudice analysis: Salim didn’t prove that his presence would have affected the outcome of his resentencing, or that the district court’s acceptance of his waiver of presence seriously affected the fairness, integrity or public reputation of judicial proceedings.