Appellate court admonishes Miami judge for resuming trial without defendant, attorney

Despite opinion questioning judge's actions, conviction in federal trial upheld

By Peter Burke - Managing Editor
Associated Press

Chief Judge K. Michael Moore, pictured here in this artist's rendering, was admonished by two judges from the U.S. Court of Appeals for the Eleventh Circuit for allowing a criminal trial to continue while the defendant and her attorney were absent.

MIAMI - A federal appellate court has admonished a Miami judge for resuming a criminal trial without the defendant and one of her attorneys.

The U.S. Court of Appeals for the Eleventh Circuit called the case "troubling" in its opinion but ultimately upheld the conviction of Lourdes Margarita Garcia, ruling that the mistake didn't affect the outcome of the trial.

"There can be no doubt -- and the government does not contest the point -- that constitutional error occurred," Circuit Judge Stanley Marcus wrote in his opinion. "It is also clear that the error was plain and obvious. The decision to allow the government to introduce inculpatory evidence while both the defendant and her lawyer were absent for three to 10 minutes in a trial that lasted more than 49 hours violated the defendant's right to counsel, her right to confront the witnesses arrayed against her and her right to be present at trial" under the law.

Garcia was convicted of conspiracy to defraud the IRS and filing false tax returns. She was sentenced to four years and three months in prison and ordered to pay more than $455,000 in restitution to the IRS.

While an IRS agent was testifying against Garcia during her trial, Chief Judge K. Michael Moore recessed for lunch. After lunch, however, the testimony resumed before Garcia and the defense team had returned to the courtroom.

The opinion states Garcia's counsel had "been absent for some three minutes and the defendant for as much as 10 minutes."

"Counsel did not raise any objection when she returned to the courtroom in the middle of (IRS Agent Angela) Arevalo's testimony," Marcus wrote. "Nor did she lodge an objection the following day during an extensive sidebar colloquy called for the explicit purpose of discussing the introduction of inculpatory evidence in the defense team's absence. Indeed, counsel expressly declined to state any objection at that time although given an extended opportunity to do so."

Garcia testified that she was unaware of the amounts reported on her tax returns, even though she admitted to signing some of them, claiming her husband took care of the family's finances. Her son and daughter also testified on her behalf, putting the blame on their father, who died before the trial began.

Although the opinion deemed the government presented conclusive evidence against Garcia during the 10-day trial, Marcus and Circuit Judge Charles R. Wilson agreed Moore's actions were concerning, especially after Wilson said Moore did the same thing in another trial.

"This troubling case presents a familiar factual scenario -- a district court judge permitted a criminal trial to resume, and inculpatory evidence to be taken, without defense counsel present," Wilson wrote. "We recently confronted a nearly identical appeal from the same district judge" in a trial last year.

Wilson said the facts in Garcia's case "are even more egregious" because the defendant was absent.

"Despite the deserted defense table, the district court judge prompted the government to continue its direct examination of an important witness," Wilson wrote.

The court transcript doesn't reveal why Moore chose to resume trial without Garcia or her attorney.

In the end, though, Marcus and Wilson concluded they were bound to the framework established in the previous appeal, calling it "harmless error beyond a reasonable doubt."

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