ON APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS, DIVISION OF ST. THOMAS AND ST. JOHN
Before Garth, Circuit Judge, Rosenn, Senior Circuit Judge, and Higginbotham, Circuit Judge.
Rule 43 of the Federal Rules of Criminal Procedure provides that a defendant shall be present at every stage of his trial, except that a defendant shall be considered to have waived his right to be present at trial whenever, after initially being present, he voluntarily absents himself after the trial has commenced.*fn1 Appellant Samuel George asserts that the district court failed to comply with Rule 43 when he was tried for rape, robbery, and other offenses because, although he was present when the jury was selected, he was not present when the court administered the oath to the jury and began the taking of testimony.
George does not take issue with the district court's finding that his absence from trial was voluntary,*fn2 but argues that since the trial did not "commence" for Rule 43 purposes until the jury or first witness was sworn, he had not initially been present, had not voluntarily absented himself after the trial had commenced, and hence had not waived his right to be present under the Rule. Because we hold that a trial "commences" for Rule 43 purposes (as distinguished from double jeopardy purposes) when jury selection begins, not when the first juror or witness is sworn, we find no error by the district court in proceeding with the trial in George's absence. For this and other reasons,*fn3 we will affirm George's conviction.
Although it is true that jeopardy does not attach until the jury is sworn, Crist v. Bretz, 437 U.S. 28, 35-38, 98 S. Ct. 2156, 2160-2162, 57 L. Ed. 2d 24 (1978); Downum v. United States, 372 U.S. 734, 83 S. Ct. 1033, 10 L. Ed. 2d 100 (1963), or, in a nonjury trial, until the first witness is sworn, Serfass v. United States, 420 U.S. 377, 388, 95 S. Ct. 1055, 1062, 43 L. Ed. 2d 265 (1975), it does not follow that the same test must be applied in determining when a trial "commences" for purposes of Rule 43. As the First Circuit stated in a case involving facts almost identical to those here:
With regard to a defendant's presence at trial, the trial commences "at least" from the time that the work of impaneling jurors begins. Hopt v. Utah, 110 U.S. 574, 578 (4 S. Ct. 202, 204, 28 L. Ed. 262) (1884). The challenging of prospective jurors is an essential part of the trial, as shown both by the case law, Lewis v. United States, 146 U.S. 370, 374 (13 S. Ct. 136, 137, 36 L. Ed. 1011) (1892), and by Rule 43's reference to "every stage of the trial including the impaneling of the jury." The concept that a defendant could go through trial proceedings to the point of selecting the entire jury and then, perhaps because he was dissatisfied with the complement thereof, freely depart, does not appeal to us. To draw the bright line at the formality of swearing the jury would frustrate the purpose of Rule 43.
The principle that a trial "commences" for Rule 43 purposes when jury selection begins was implicit in our holding in Government of the Virgin Islands v. Brown, 507 F.2d 186, 11 V.I. 453 (3d Cir. 1975). In Brown, the defendant was absent when jury selection began, but was present at the conclusion of jury selection and during the remainder of the trial. This court assumed that since the defendant had been absent when jury selection began, he had been absent at the commencement of his trial, but went on to hold that Brown had nevertheless waived his Rule 43 right to be present during the selection of the jury.*fn4 See also United States v. Tortora, 464 F.2d 1202, 1208-10 (2d Cir.), cert. denied, 409 U.S. 1063, 93 S. Ct. 554, 34 L. Ed. 2d 516 (1972).
The judgment of conviction will be ...