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Second Circuit: Videoconference at Resentencing Violates Right to be Present

The Second Circuit Court of Appeals has held that resentencing a defendant by videoconference violated his right to be present in court, and the government failed to satisfy its burden of establishing that the defendant knowingly and voluntarily waived his right to be present. Under the circumstances, however, the error was not prejudicial.

On November 1, 2000, alleged al Qaeda member Mamdouh Mahmud Salim was confined at the Metropolitan Correctional Center (MCC) in New York, awaiting trial on federal terrorism charges.

Salim and his cellmate, a co-defendant in the terrorism case, plotted “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.”

As Salim was escorted to his cell from a meeting with his lawyers, under the guise of retrieving additional legal materials, Salim and his cellmate assaulted MCC guard Louis Pepe, stabbing him in the left eye with a sharpened plastic comb. Before he could attack his attorneys, however, Salim was overpowered by other guards.

“Pepe was severely injured. He lost his left eye, incurred reduced vision in his right eye, and suffered brain damage that left his right side partially paralyzed and interfered with other normal functions, including his ability to speak and write.”

On April 3, 2002, Salim pleaded guilty to conspiracy to murder and attempted murder of a federal official for the attack on Pepe. He was initially sentenced to 384 months in prison, which was later reversed on appeal. See: United States v. Salim, 549 F.3d 67 (2d Cir. 2008), cert. denied.

The district court imposed the same sentence on remand and Salim again appealed. This time, the Second Circuit agreed with the government that a terrorism enhancement was appropriate, and thus vacated the sentence and remanded.

On August 31, 2010, the district court held a second resentencing hearing which Salim attended by videoconference. The court imposed a life sentence as a terrorism enhancement, and Salim appealed a third time. Among other issues, he argued that he had not voluntarily waived his right to be present at the hearing, because the waiver “was premised on his fear of abuse by correctional officers” who, he alleged, had previously beaten and spit on him when he was moved to another prison.

The Court of Appeals recognized that Salim had a right to be present at a sentencing hearing under “both the Constitution and Federal Rule of Criminal Procedure 43(a)(3),” which extended to resentencing. As a matter of first impression in that circuit, the appellate court held that the right to be present requires a defendant’s physical presence and is not satisfied by appearing via videoconference.

The Second Circuit further found the district court had erred in determining that the government had satisfied its burden of proving that Salim knowingly and voluntarily waived his right to be present. The appellate court affirmed the district court’s sentencing order, however, because “Salim has not explained why his absence might have altered his resentence, nor has he demonstrated that any error in his resentencing was so egregious as to warrant relief on plain error review.” See: United States v. Salim, 690 F.3d 115 (2d Cir. 2012), cert. denied.

On January 9, 2014, Salim filed a motion to vacate under 28 U.S.C. 2255, which remains pending.

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