When a company confesses.

• Author: Jackson, Christopher

Under the Federal Rules of Criminal Procedure, a defendant is normally obligated to attend all of the proceedings against her. However, Rule 43(b)(2) carves out an exception for organizational defendants, stating that they "need not be present" if represented by an attorney. But on its face, the language of 43(b)(2) is ambiguous: is it the defendant or the judge who has the discretion to decide whether the defendant appears ? That is, may a judge compel the presence of an organizational defendant? This Note addresses the ambiguity in the context of the plea colloquy, considering the text of several of the Rules, the purposes behind the plea colloquy proceeding, and the inherent powers doctrine. It argues that district court judges do in fact have the authority to compel an organizational defendant's presence at a plea colloquy.

TABLE OF CONTENTS INTRODUCTION I. OTHER RULES ON ATTENDANCE A. Arraignments Under Rule 10(b) B. Presence Under Rule 43(a) C. Proceedings Under 43(b)(2) D. Proceedings Under 43(b)(3) E. Proceedings Under 43(b)(4) F. Waiving Presence Under Rule 43(c) II. THE IMPORTANCE OF THE II(B) PLEA COLLOQUY A. The Importance of a Defendant's Presence at the Plea Colloquy Generally B. The Importance of an Organization's Presence at the Plea Colloquy in Particular C. The Rights Implicated in a Guilty Plea D. Flexibility in Plea Colloquy Procedure III. THE INHERENT POWERS OF THE COURT TO COMPEL ATTENDANCE A. The Inherent Powers Doctrine B. Undue Delay and Attendance CONCLUSION INTRODUCTION

In the late 1990s an oil tanker collided with a man-made structure as a result of the captain's negligent conduct, severely damaging the ship and dumping tens of thousands of gallons of oil into a bay. (1) Federal investigators found that the corporation that owned the ship--a foreign company--had committed gross negligence by failing to train the ship's crew members and had falsified documents in an attempt to avoid liability. In a federal prosecution for violations of the Clean Water Act and other federal statutes, the defendant chose not to have any individual from the corporation attend any hearing, in an attempt to distance itself from the incident and avoid a public relations disaster. Instead, the company appeared in court through its attorney.

After a plea deal was negotiated, the judge tried to hold a plea colloquy at which the defendant would formally plead guilty to the charges in the indictment. At the colloquy, the judge asked the defendant's counsel for specific details about the crimes. (2) The attorney, apparently not familiar with the intricacies of the case, was unable to answer the judge's questions. The judge adjourned the heating and rescheduled, requesting that someone from the defendant corporation appear. At that second colloquy, the defendant still refused to send anyone to court besides its attorney. The judge again asked a series of questions regarding the facts of the case, but the defendant's attorney could not provide the relevant details. The judge, frustrated that the defendant's failure to appear was delaying the case and concerned that the defendant was trying to avoid the public condemnation that usually accompanies a guilty plea, wasn't sure whether she had any authority to compel the corporation to attend its own plea.

The Federal Rules of Criminal Procedure (the "Rules") generally require a defendant to be present in court at all stages of a criminal case against her. (3) Specifically, under Rule 43(a) the defendant must be present at the initial appearance, arraignment, plea, trial, and sentencing. (4) There are, however, a number of exceptions to this general requirement. For example, if certain conditions are met, a defendant is not obligated to be present at her initial appearance (5) or arraignment. (6) Unfortunately, not all exceptions to the attendance requirement are so clear-cut. In particular, Rule 43(b)(1) creates a blanket exception to the attendance requirement for organizational defendants, stating that they "need not be present" if represented by counsel who is present at the proceeding. (7) On its face, however, this subsection is ambiguous: while an organizational defendant "need not be present," it is unclear who has the discretion to decide whether the defendant will personally appear--the defendant or the judge. (8) That is, the Rule does not clearly answer the question of whether a district court may compel the attendance of an organizational defendant. This ambiguity is particularly apparent in the context of a plea colloquy. (9)

There are three broad reasons why this ambiguity ought to be resolved. First, an examination of Rule 43(b)(1) will illuminate the proper interpretation of a host of other Rules, among them 4, 10, 11(b), and several other subsections of 43, and provide helpful clarification about how the Rules work in practice. Second, the issue of compelling attendance forms a part of a larger discussion about the nature of criminal corporate liability in general. There are four general justifications for punishment--incapacitation, deterrence, rehabilitation, and retribution (10)--that might apply in the organizational context. While it is clear that compelling an organization's attendance cannot incapacitate that organization, (11) it is possible that doing so will further the goal of deterrence, (12) rehabilitation, (13) and retribution. (14) Third and finally, resolving the ambiguity of 43(b)(2)'s "need not be present" language is important for the general principle that it is better to know what federal district court judges may and may not do in their official capacity. The use of this power may be an effective means to bring about an efficient, equitable outcome in matters coming before our nation's courts. For example, compelling the attendance of an organizational defendant may increase the efficiency of the judicial process. An organizational defendant may be able to delay the legal process by refusing to appear at various critical junctures, forcing the court to stay or postpone the proceedings while the defendant's attorneys consult with their client. The ability to compel attendance may be one more useful tool a court has to ensure that matters are handled in a cost-effective manner. On the other hand, the use of this power also opens the door to judicial abuse, providing the courts with yet another way to impose unjust hardships on innocent defendants.

The issue of compelling the presence of organizational defendants rarely arises in either academic writing or legal practice. This may be due to the odd procedural posture necessary for appellate review of the issue; (15) alternatively, the literature's silence may simply reflect the fact that defendants are unlikely to challenge a district court's request to appear at a plea colloquy. (16) Regardless, the three foregoing reasons make it clear it is important to determine whether courts have this authority.

Even if a district court does have the authority to compel an organization's attendance, it remains unclear who it might compel. (17) Because an organizational defendant is not an individual person, (18) the organization itself cannot appear in court: unlike a human being, it has no physical manifestation. Historically, English courts had trouble applying criminal law--a system designed to punish individual persons--to organizations for precisely this reason. (19) However, since 1909 American courts have recognized the applicability of criminal sanctions to organizations, (20) and the Rules clearly contemplate that someone may be compelled to attend: Rule 43 states that an organizational defendant need not be present so long as it is represented by counsel. (21) In the same vein, Rule 11(a)(4) states, "If a defendant refuses to enter a plea or if a defendant organization fails to appear, the court must enter a plea of not guilty." (22) This language implicitly assumes the existence of someone who could attend the proceedings. The Rules simply do not indicate who that person is. (23) For purposes of this Note, however, the important point is that the individual is not the organization's counsel. (24)

This Note argues that federal district courts have the authority under Federal Rule of Criminal Procedure 43(b)(1) to compel the attendance of organizational defendants (25) at plea colloquies. Part I demonstrates that the Rules are best read together in a way that gives the district courts this power. Part II discusses the underlying purposes of plea colloquies and contends that they are best achieved by giving district courts the discretion to compel attendance. Lastly, Part III argues that the inherent powers of the court provide another, independent basis for the view that district courts can compel organizational defendants' presence.

1. OTHER RULES ON ATTENDANCE

   This Part examines six other subsections of the Rules relating to attendance: 10(b), which governs the defendant's presence at an arraignment; 43(a), which requires the defendant's presence at various stages of the proceedings against her; 43(b)(2), which concerns the presence of a defendant charged with a misdemeanor; 43(b)(3), which deals with the defendant's presence at a conference on a legal question; 43(b)(4), which governs the defendant's presence at a sentencing correction hearing; and 43(c), which permits the defendant to waive her right to be present in some circumstances. This examination lends support to the claim that district courts can compel the presence of an organizational defendant at a plea colloquy under 43(b)(1).

   One point needs to be made before delving into the statutory analysis. This Part discusses several topics--among them capital punishment and obstreperous defendants--that do not seem to be applicable to organizational defendants. These topics are relevant not because they apply directly to an organization; rather, they are discussed as part of a larger argument that the Rules must...