Sentence in absentia upheld in Seventh Circuit.

• Author: Ziemer, David

Byline: David Ziemer

The Seventh Circuit on Nov. 8 affirmed the sentence of a defendant sentenced in abstentia. However, the court declined to adopt a specific framework for considering the merits of challenges to in abstentia sentencings in future cases.

In December 2005, Lahbib Achbani pleaded guilty in federal court to making and uttering a counterfeit check, in violation of 18 U.S.C. 513(a), after he manufactured a $100,000 check, deposited it and withdrew funds to pay off various debts.

Prior to entering the plea, Achnabi had assisted in a government investigation that led to the recovery of nearly $2 million in stolen goods and the filing of criminal charges against others. The government had anticipated filing a motion for a sentence below the guidelines because of Achbani's substantial assistance.

In February 2006, however, the government discovered that Achbani had passed additional counterfeit checks after being indicted, and informed defense counsel that it did not believe he was entitled to credit for acceptance of responsibility.

Achbani then disappeared before his May sentencing, and the district court postponed the hearing several times while the government searched for him.

Sentenced in Abstentia

Achbani was ultimately sentenced in abstentia in August, after the government presented evidence that Achbani had fled to Austria in April using a Moroccan passport.

Achbani appealed, but the Seventh Circuit affirmed in a decision by Judge Kenneth F. Ripple.

The court began with a review of Rule 43, which, prior to 1995, only allowed for trial in abstentia, but not sentencing.

No prior Seventh Circuit case interprets when a defendant has made himself "voluntarily absent" for sentencing, although cases interpret Rule 43 in the trial context. In light of the amendment, and the identical language for the two situations, the court interpreted the 1995 amendment to indicate Congressional intent that the standards be the same.

No Error

Applying that standard -- whether the trial court has indulged every reasonable inference and "serious question" that the absence is involuntary -- the court concluded that the district court did not err.

The court found that the government's evidence of flight to Austria ruled out any "serious" possibility that Achbani was involuntarily absent due to death, hospitalization or legal custody. In addition, the court noted his strong motive for flight after the government discovered his ongoing criminal...