OCTOBER TERM, 1992
Syllabus
ORTEGA-RODRIGUEZ
v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT
No. 91-7749. Argued December 7, 1992-Decided March 8,1993
In
United States v.
Holmes, 680
F.2d 1372, 1373, the Court of Appeals held that "a defendant
who flees after conviction, but before sentencing, waives his right
to appeal from the conviction unless he can establish that his
absence was due to matters completely beyond his controL" Relying
on that authority, and without further explanation, the court
issued a
per curiam order dismissing the appeal of
petitioner, who failed to appear for sentencing following his
conviction on federal narcotics charges, but was recaptured before
he filed his appeal.
Held: When a defendant's flight and recapture occur
before appeal, the defendant's former fugitive status may well lack
the kind of connection to the appellate process that would justify
an appellate sanction of dismissal. Pp. 239-252.
(a) This Court's settled rule that dismissal is an appropriate
sanction when a convicted defendant is a fugitive during "the
ongoing appellate process," see
Estelle v.
Dorrough,
420 U. S. 534,
542, n. 11, is amply supported by a number of justifications,
including concerns about the enforceability of the appellate
court's judgment against the fugitive, see,
e. g., Smith v.
United States, 94 U. S. 97; the belief
that flight disentitles the fugitive to relief, see
Molinaro
v.
New Jersey, 396 U. S. 365,366; the
desire to promote the "efficient ... operation" of the appellate
process and to protect the "digni[ty]" of the appellate court, see
Estelle, 420 U. S., at 537; and the view that the threat of
dismissal deters escapes, see
ibid. Pp. 239-242.
(b) The foregoing rationales do not support a rule of dismissal
for all appeals filed by former fugitives who are returned to
custody before they invoke the jurisdiction of the appellate
tribunal. These justifications all assume some connection between
the defendant's fugitive status and the appellate process,
sufficient to make an appellate sanction a reasonable response.
When both flight and recapture occur while a case is pending before
the district court, the justifications are necessarily attenuated
and often will not apply. Pp. 242-249.
(c) This Court does not hold that a court of appeals is entirely
without authority to dismiss an appeal because of fugitive status
predating the appeal, since it is possible that some actions by a
defendant, though they occur while his case is before the district
court, might have an impact
235
on the appellate process sufficient to warrant an appellate
sanction. As this case reaches the Court, however, there is no
indication in the record that the Court of Appeals made such a
judgment under the standard here announced. Application of the
Holmes rule, as formulated by the lower court thus far, does
not require the kind of connection between fugitivity and the
appellate process that is necessary; instead it may rest on nothing
more than the faulty premise that any act of judicial defiance,
whether or not it affects the appellate process, is punishable by
appellate dismissal. Pp. 249-252.
Vacated and remanded.
STEVENS, J., delivered the opinion of the Court, in which
BLACKMUN, SCALIA, KENNEDY, and SOUTER, JJ., joined. REHNQUIST, C.
J., filed a dissenting opinion, in which WHITE, O'CONNOR, and
THOMAS, JJ., joined,
post, p. 252.
James R. Gailey argued the cause for petitioner. With him
on the briefs were
Stewart G.
Abrams and
Paul M.
Rashkind.
Amy L. Wax argued the cause for the United States.
With her on the brief were Solicitor General Starr, Assistant
Attorney General Mueller, and Deputy Solicitor General Bryson.
JUSTICE STEVENS delivered the opinion of the Court.
In
United States v.
Holmes, 680
F.2d 1372, 1373 (1982), cert. denied, 460 U. S. 1015 (1983),
the Court of Appeals for the Eleventh Circuit held that "a
defendant who flees after conviction, but before sentencing, waives
his right to appeal from the conviction unless he can establish
that his absence was due to matters completely beyond his control."
Relying on that authority, and without further explanation, the
court dismissed petitioner's appeaU Because we have not pre-
1 The Court of Appeals order merely stated that the Government's
"motion to dismiss is GRANTED," without actually citing
Holmes. App. 78. Because the Government's motion to dismiss,
id., at 68-71, relied entirely on
Holmes and on
United
States v.
London, 723 F.2d
1538 (CAll), cert. denied, 467 U. S. 1228 (1984), which
followed
Holmes, we construe the Court of Appeals order as a
routine application of the
Holmes rule.
236
viously considered whether a defendant may be deemed to forfeit
his right to appeal by fleeing while his case is pending in the
district court, though he is recaptured before sentencing and
appeal, we granted certiorari. 504 U. S. 984 (1992).
I
In the early evening of November 7, 1988, a Customs Service
pilot was patrolling the Cay Sal Bank area, located midway between
Cuba and the Florida Keys. Approximately 30 miles southwest of Cay
Sal, the pilot observed a low-flying aircraft circling over a white
boat and dropping bales. The boat, described by the pilot as 40 to
50 feet in length, was circling with the plane and retrieving the
bales from the water as they dropped. Because the Customs Service
plane was flying at an altitude of 2,500 feet, and visibility was
less than optimal, the pilot was unable to identify the name of the
boat.
United States v.
Mieres-Borges, 919 F.2d
652, 654-655 (CAll 1990), cert. denied, 499 U. S. 980 (1991);
Report and Recommendation in
United States v.
OrtegaRodriguez, No. 88-10035-CR-KING (SD Fla., Feb.
23,1989).
The following morning, another Customs Service pilot found the
Wilfred, a boat resembling the one spotted approximately 12
hours earlier. This boat, located just off the beach of Cay Sal,
was described as a 30- to 40-foot sportfishing vessel. Upon making
this discovery, the pilot first flew to the drop point identified
the night before, 30 miles away, and found no activity. Returning
to Cay Sal, he found a number of bales stacked on the beach, and
the
Wilfred underway and headed toward Cuba.
The pilot alerted the captain of a Coast Guard cutter, who
intercepted, boarded, and searched the
Wilfred. He found no
narcotics, weapons, or other incriminating evidence on the boat.
Nevertheless, the three members of the crew failed to convince the
Coast Guard that they were fishing for dolphin, although a large
number of similar vessels frequently do so in the area.
Mieres-Borges, 919 F. 2d, at 655-657, 659-660.
237
Petitioner is one of the three crew members arrested, tried, and
convicted of possession with intent to distribute, and conspiring
to possess with intent to distribute, over five kilograms of
cocaine. After the trial, the District Court set June 15, 1989, as
the date for sentencing. Petitioner did not appear and was
sentenced
in absentia to a prison term of 19 years and 7
months, to be followed by 5 years of supervised release.2 Though
petitioner's codefendants appealed their convictions and sentences,
no appeal from the judgment was filed on petitioner's behalf.
The District Court issued a warrant for petitioner's arrest, and
11 months later, on May 24, 1990, he was apprehended. Petitioner
was indicted and found guilty of contempt of court 3 and failure to
appear.4 Pursuant to the Sentencing
2 No. 88-10035-CR-KING (SD Fla., June 23, 1989).
3 Title 18 U. S. C. § 401(3) provides: "A court of the United
States shall have power to punish by fine or imprisonment, at its
discretion, such contempt of its authority, and none other, as ...
[d]isobedience or resistance to its lawful writ, process, order,
rule, decree, or command."
4 Title 18 U. S. C. § 3146 provides, in relevant part:
"(a) OFFENsE.-Whoever, having been released under this chapter
knowingly-
"(1) fails to appear before a court as required by the
conditions of release; or
"(2) fails to surrender for service of sentence pursuant to a
court order; shall be punished as provided in subsection (b) of
this section.
"(b) PUNISHMENT.-(I) The punishment for an offense under this
section is-
"(A) if the person was released in connection with a charge of,
or while awaiting sentence, surrender for service of sentence, or
appeal or certiorari after conviction for-
"(i) an offense punishable by death, life imprisonment, or
imprisonment for a term of 15 years or more, a fine under this
title or imprisonment for not more than ten years, or both;
"(ii) an offense punishable by imprisonment for a term of five
years or more, a fine under this title or imprisonment for not more
than five years, or both;
"(iii) any other felony, a fine under this title or imprisonment
for not more than two years, or both; or
238
Reform Act of 1984, 18 U. s. C. § 3551
et seq., the
District Court imposed a prison sentence of 21 months, to be served
after the completion of the sentence on the cocaine offenses and to
be followed by a 3-year term of supervised release.5
While petitioner was under indictment after his arrest, the
Court of Appeals disposed of his two codefendants' appeals. The
court affirmed one conviction, but reversed the other because the
evidence was insufficient to establish guilt beyond a reasonable
doubt.6 Also after petitioner was taken into custody, his attorney
filed a "motion to vacate sentence and for resentencing," as well
as a motion for judgment of acquittal. The District Court denied
the latter but granted the former, vacating the judgment previously
entered on the cocaine convictions.7 The District Court then
resentenced
"(iv) a misdemeanor, a fine under this chapter or imprisonment
for not more than one year, or both; and
"(B) if the person was released for appearance as a material
witness, a fine under this chapter or imprisonment for not more
than one year, or both.
"(2) A term of imprisonment imposed under this section shall be
consecutive to the sentence of imprisonment for any other
offense.
"(c) AFFIRMATIVE DEFENSE.-It is an affirmative defense to a
prosecution under this section that uncontrollable circumstances
prevented the person from appearing or surrendering, and that the
person did not contribute to the creation of such circumstances in
reckless disregard of the requirement to appear or surrender, and
that the person appeared or surrendered as soon as such
circumstances ceased to exist."
5 App. 58-63.
6
United States v.
Mieres-Borges, 919 F.2d
652 (CA111990), cert. denied, 499 U. S. 980 (1991). The
difference in dispositions is explained by a postarrest statement
admitted against only one defendant, 919 F. 2d., at 660661, though
the dissenting judge viewed the evidence as insufficient as to both
appealing defendants, id., at 663-664. Petitioner represents that
he is situated identically to the codefendant whose conviction was
reversed, with nothing in the record that would support a
distinction between their cases. The Government does not take issue
with that representation, but maintains that the evidence is
sufficient to support all three convictions. Brief for United
States 28, n. 7.
7 App. 10.
239
petitioner to a prison term of 15 years and 8 months, to be
followed by a 5-year period of supervised release.8 Petitioner
filed a timely appeal from that final judgment.9
On appeal, petitioner argued that the same insufficiency of the
evidence rationale underlying reversal of his codefendant's
conviction should apply in his case, because precisely the same
evidence was admitted against the two defendants. Without
addressing the merits of this contention, the Government moved to
dismiss the appeal. The Government's motion was based entirely on
the fact that petitioner had become a fugitive after his conviction
and before his initial sentencing, so that "[u]nder the holding in
Holmes, he cannot now challenge his 1989 conviction for
conspiracy and possession with intent to distribute cocaine." 10 In
a
per curiam order, the Court of Appeals granted the motion
to dismiss.
II
It has been settled for well over a century that an appellate
court may dismiss the appeal of a defendant who is a fugitive from
justice during the pendency of his appeal. The Supreme Court
applied this rule for the first time in
Smith v.
United
States, 94 U. S.
97 (1876), to an escaped defendant who remained at large when
his petition arose before the Court. Under these circumstances, the
Court explained, there could be no assurance that any judgment it
issued
8Id., at 51-56.
9Id., at 57. This sequence of events makes petitioner's
case somewhat unusual. Had the District Court denied petitioner's
motion for resentencing, petitioner would have been barred by
applicable time limits from appealing his initial sentence and
judgment. Petitioner was able to file a timely appeal only because
the District Court granted his motion to resentence. Entry of the
second sentence and judgment, from which petitioner noticed his
appeal, is treated as the relevant "sentencing" for purposes of
this opinion. We have no occasion here to comment on the propriety
of either the District Court's initial decision to sentence
in
absentia, or its subsequent decision to resentence.
10
Id., at 70-71.
240
would prove enforceable. The Court concluded that it is "clearly
within our discretion to refuse to hear a criminal case in error,
unless the convicted party, suing out the writ, is where he can be
made to respond to any judgment we may render."
Ibid. On two
subsequent occasions, we gave the same rationale for dismissals
based on the fugitive status of defendants while their cases were
pending before our Court.
Bohanan v.
Nebraska,
125 U. S. 692
(1887);
Eisler v.
United States, 338 U. S. 189
(1949).11
Enforceability is not, however, the only explanation we have
offered for the fugitive dismissal rule. In
Molinaro v.
New Jersey, 396 U. S. 365, 366
(1970), we identified an additional justification for dismissal of
an escaped prisoner's pending appeal:
"No persuasive reason exists why this Court should proceed to
adjudicate the merits of a criminal case after the convicted
defendant who has sought review escapes from the restraints placed
upon him pursuant to the conviction. While such an escape does not
strip the case of its character as an adjudicable case or
controversy, we believe it disentitles the defendant to call upon
the resources of the Court for determination of his claims."
As applied by this Court, then, the rule allowing dismissal of
fugitives' appeals has rested in part on enforceability concerns,
and in part on a "disentitlement" theory that construes a
defendant's flight during the pendency of his appeal as tantamount
to waiver or abandonment.
11 The dissenting Justices in
Eisler, noting that the
case was not rendered moot by Eisler's escape, believed that the
Court should have exercised its discretion to decide the merits in
light of the importance of the issue presented. See 338 U. S., at
194 (Murphy, J., dissenting); id., at 195 (Jackson, J.,
dissenting). In
United States v.
Sharpe, 470 U. S. 675 (1985),
despite the respondent's fugitive status, the Court declined to
remand the case to the Court of Appeals with directions to dismiss,
and proceeded to decide the merits.
Id., at 681, n. 2. See
also
id., at 688 (BLACKMUN, J., concurring); id., at 721-723
(STEVENS, J., dissenting).
241
That ensuring enforceability is not the sole rationale for
fugitive dismissals is also evident from our review of state
provisions regarding escaped prisoners' pending appeals. In
Allen v.
Georgia, 166 U. S. 138 (1897), we
upheld not only a state court's dismissal of a fugitive's appeal,
but also its refusal to reinstate the appeal after the defendant's
recapture, when enforceability would no longer be at issue. We
followed
Allen in
Estelle v.
Dorrough,
420 U. S. 534
(1975), upholding the constitutionality of a Texas statute
providing for automatic appellate dismissal when a defendant
escapes during the pendency of his appeal, unless the defendant
voluntarily returns within 10 days. Although the defendant in
Estelle had been recaptured before his appeal was considered
and dismissed, resolving any enforceability problems, there were,
we held, other reasons for dismissal. Referring to our own
dismissal in
Molinaro, we found that the state statute
served "similar ends .... It discourages the felony of escape and
encourages voluntary surrenders. It promotes the efficient,
dignified operation of the Texas Court of Criminal Appeals." 420 U.
S., at 537 (footnotes omitted).
Estelle went on to consider whether the Texas statute was
irrational because it applied only to prisoners with appeals
pending when they fled custody. Citing the "peculiar problems posed
by escape of a prisoner during the ongoing appellate process," id.,
at 542, n. 11, we concluded that it was not. The distinct concerns
implicated by an escape pending appeal justified a special rule for
such appeals:
"Texas was free to deal more severely with those who
simultaneously invoked the appellate process and escaped from its
custody than with those who first escaped from its custody,
returned, and then invoked the appellate process within the time
permitted by law. While each class of prisoners sought to escape,
the first did so in the very midst of their invocation of the
appellate process, while the latter did so before returning to
custody and commencing that process. If Texas is free to
242
adopt a policy which deters escapes by prisoners, as all of our
cases make clear that it is, it is likewise free to impose more
severe sanctions on those whose escape is reasonably calculated to
disrupt the very appellate process which they themselves have set
in motion." Id., at 541-542.
Thus, our cases consistently and unequivocally approve dismissal
as an appropriate sanction when a prisoner is a fugitive during
"the ongoing appellate process." Moreover, this rule is amply
supported by a number of justifications. In addition to addressing
the enforceability concerns identified in
Smith v.
United
States, 94 U. S.
97 (1876), and
Bohanan v.
Nebraska, 125 U. S. 692 (1887),
dismissal by an appellate court after a defendant has fled its
jurisdiction serves an important deterrent function and advances an
interest in efficient, dignified appellate practice.
Estelle, 420 U. S., at 537. What remains for our
consideration is whether the same rationales support a rule
mandating dismissal of an appeal of a defendant who flees the
jurisdiction of a district court, and is recaptured before he
invokes the jurisdiction of the appellate tribunal.
III
In 1982, the Government persuaded the Eleventh Circuit that our
reasoning in
Molinaro should be extended to the appeal of a
"former fugitive," returned to custody prior to sentencing and
notice of appeal.12 The Court of Appeals
12 For present purposes, the time of sentencing and the time of
appeal may be treated together, as the two dates normally must
occur within 10 days of one another. See Fed. Rule App. Proc. 4(b);
see also n. 9,
supra; Torres v.
Oakland Scavenger
Co., 487 U. S.
312, 314-315 (1988) (discussing mandatory nature of Rule 4 time
limits). Cases in which a defendant flees during that lO-day
interval will be resolved easily: If the defendant fails to file a
timely appeal, his case concludes; if the defendant's attorney
files an appeal for him in his absence, the appeal will be subject
to dismissal under straightforward application of
Smith and
Molinaro. Should a defendant flee after sentencing but
return before appeal-in other words,
243
recognized in
Holmes that all of the cases on which the
Government relied were distinguishable, "because each involved a
defendant who fled
after filing a notice of appeal." 680 F.
2d, at 1373 (emphasis added). The court was satisfied, however,
that the disentitlement rationale of
Molinaro "is equally
forceful whether the defendant flees before or after sentencing."
680 F. 2d, at 1374. The Eleventh Circuit also expressed concern
that absent dismissal, the Government might be prejudiced by delays
in proceedings resulting from pre sentencing escapes.13
The rule of
Holmes differs from that applied in
Molinaro in three key respects. First, of course, the
Holmes rule reaches defendants who flee while their cases
are before district courts, as well as those who flee while their
appeals are pending. Second, the
Holmes rule, unlike the
rule of
Molinaro, will not mandate dismissal of an entire
appeal whenever it is invoked. As the Eleventh Circuit explained,
because flight cannot fairly be construed as a waiver of appeal
from errors occurring after recapture, defendants who flee pre
sentencing retain their right to appeal
sentencing errors,
though they lose the right to appeal their
convictions. 680
F. 2d, at 1373.14 Finally, as announced in
Holmes and
should his period of fugitivity begin after sentencing and end
less than 10 days later-then a timely filed appeal would be subject
to the principles we apply today.
13 The court reasoned that the right of appeal, purely a
creature of statute, may be waived by failure to file a timely
notice of appeal "or by abandonment through flight which may
postpone filing a notice of appeal for years after conviction."
Holmes, 680 F. 2d, at 1373-1374. The court then explained:
"Such untimeliness would make a meaningful appeal impossible in
many cases. In case of a reversal, the government would obviously
be prejudiced in locating witnesses and retrying the case."
Id., at 1374.
14 "We hold that a defendant who flees after conviction, but
before sentencing, waives his right to appeal from the conviction
unless he can establish that his absence was due to matters
completely beyond his control.
Such a defendant does not waive
his right to appeal from any alleged errors connected to his
sentencing." Id., at 1373 (emphasis added).
244
applied in this case, the Eleventh Circuit rule appears to call
for automatic dismissal, rather than an exercise of discretion. See
n. 11,
supra.
In our view, the rationales that supported dismissal in cases
like
Molinaro and
Estelle should not be extended as
far as the Eleventh Circuit has taken them. Our review of rules
adopted by the courts of appeals in their supervisory capacity is
limited in scope, but it does demand that such rules represent
reasoned exercises of the courts' authority. See
Thomas v.
Arn, 474 U. S.
140, 146-148 (1985). Accordingly, the justifications we have
advanced for allowing appellate courts to dismiss pending fugitive
appeals all assume some connection between a defendant's fugitive
status and the appellate process, sufficient to make an appellate
sanction a reasonable response.15 These justifications are
necessarily attenuated when applied to a case in which both flight
and recapture occur while the case is pending before the district
court, so that a defendant's fugitive status at no time coincides
with his appeal.
There is, for instance, no question but that dismissal of a
former fugitive's appeal cannot be justified by reference to the
enforceability concerns that animated
Smith v.
United
States, 94 U. S.
97 (1876), and the cases that followed. A defendant returned to
custody before he invokes the appellate process presents no risk of
unenforceability; he is within control of the appellate court
throughout the period of appeal and issuance of judgment. Cf.
United States v.
Gordon, 538 F. 2d 914, 915 (CAl1976)
(dismissing pending appeal of fugitive because it is "unlikely that
[the] convicted party will respond to an unfavorable
decision").
15The reasonableness standard of
Thomas v.
Arn,
474 U. S. 140
(1985), is not, however, the only reason we require some connection
between the appellate process and an appellate sanction. As the
dissent notes,
post, at 254, n. 2, Federal Rule of Appellate
Procedure 47, which authorizes the promulgation of rules by the
courts of appeals, limits that authority to rules "governing [the]
practice" before those courts.
245
Similarly, in many cases, the "efficient ... operation" of the
appellate process, identified as an independent concern in
Estelle, 420 U. S., at 537, will not be advanced by
dismissal of appeals filed after former fugitives are recaptured.
It is true that an escape may give rise to a "flurry of extraneous
matters," requiring that a court divert its attention from the
merits of the case before it.
United States v.
Puzzanghera, 820 F.2d
25, 26 (CA1), cert. denied, 484 U. S. 900 (1987). The court put
to this "additional trouble," 820 F. 2d, at 26, however, at least
in the usual course of events, will be the court before which the
case is pending at the time of escape. When an appeal is filed
after recapture, the "flurry," along with any concomitant delay,
likely will exhaust itself well before the appellate tribunal
enters the picture.16
Nor does dismissal of appeals filed after recapture operate to
protect the "digni[tyJ" of an appellate court. Cf.
Estelle,
420 U. S., at 537. It is often said that a fugitive "flouts" the
authority of the court by escaping, and that dismissal is an
appropriate sanction for this act of disrespect. See,
e. g.,
United States v.
De Valle, 894
F.2d 133, 138 (CA5 1990);
United States v.
Persico, 853 F.2d
134, 137-138 (CA2 1988);
16 This case well illustrates the way in which pre appeal flight
may delay district court, but not appellate court, proceedings.
Petitioner's sentencing was scheduled for June 1989. Because he
fled, however, and because the District Court resentenced him upon
his return to custody, his final sentence was not entered until
January 1991.
Supra, at 237-238. Accordingly, petitioner's
ll-month period of fugitivity delayed culmination of the
District Court proceedings by as much as 19 months.
In the appellate court, on the other hand, the timing of
proceedings was unaffected by petitioner's flight. Had petitioner
filed his notice of appeal before he fled, of course, then the
Court of Appeals might have been required to reschedule an already
docketed appeal, causing some delay. But here, petitioner filed his
notice of appeal only after he was returned to custody, and the
Court of Appeals was therefore free to docket his case pursuant to
its regular schedule and at its convenience. In short, a lapse of
time that precedes invocation of the appellate process does not
translate, by itself, into delay borne by the appellate court.
246
Ali v.
Sims, 788 F.2d
954, 958-959 (CA3 1986);
United States v.
London,
723 F.2d
1538, 1539 (CAll), cert. denied, 467 U. S. 1228 (1984). Indeed,
the premise of
Molinaro's disentitlement theory is that "the
fugitive from justice has demonstrated such disrespect for the
legal processes that he has no right to call upon the court to
adjudicate his claim."
Ali v.
Sims, 788 F. 2d, at
959; see
Molinaro, 396 U. S., at 366. We have no reason here
to question the proposition that an appellate court may employ
dismissal as a sanction when a defendant's flight operates as an
affront to the dignity of the court's proceedings.
The problem in this case, of course, is that petitioner, who
fled before sentencing and was recaptured before appeal, flouted
the authority of the District Court, not the Court of Appeals. The
contemptuous disrespect manifested by his flight was directed at
the District Court, before which his case was pending during the
entirety of his fugitive period. Therefore, under the reasoning of
the cases cited above, it is the District Court that has the
authority to defend its own dignity, by sanctioning an act of
defiance that occurred solely within its domain. See
United
States v.
Anagnos, 853 F.2d
1, 2 (CA1 1988) (declining to follow
Holmes because
former fugitive's "misconduct was in the district court, and should
affect consequences in that court, not in ours").
We cannot accept an expansion of this reasoning that would allow
an appellate court to sanction by dismissal any conduct that
exhibited disrespect for any aspect of the judicial system, even
where such conduct has no connection to the course of appellate
proceedings. See
supra, at 244, and n. 15. Such a rule would
sweep far too broadly, permitting, for instance, this Court to
dismiss a petition solely because the petitioner absconded for a
day during district court proceedings, or even because the
petitioner once violated a condition of parole or probation. None
of our cases calls for such a result, and we decline today to adopt
such an
247
approach. 17 Accordingly, to the extent that the
Holmes
rule rests on the premise that
Molinaro's disentitlement
theory by itself justifies dismissal of an appeal filed after a
former fugitive is returned to custody, see 680 F. 2d, at 1374, it
cannot be sustained.
Finally,
Estelle's deterrence rationale, 420 U. S., at
537, offers little support for the Eleventh Circuit rule. Once
jurisdiction has vested in the appellate court, as in
Estelle, then any deterrent to escape must flow from
appellate consequences, and dismissal may be an appropriate
sanction by which to deter. Until that time, however, the district
court is quite capable of defending its own jurisdiction. While a
case is pending before the district court, flight can be deterred
with the threat of a wide range of penalties available to the
district court judge. See
Katz v.
United States, 920
F. 2d 610, 613 (CA9 1990) (when defendant is before district court,
"disentitlement doctrine does not stand alone as a deterrence to
escape").
Moreover, should this deterrent prove ineffective, and a
defendant flee while his case is before a district court, the
district court is well situated to impose an appropriate
punishment. While an appellate court has access only to the
blunderbuss of dismissal, the district court can tailor a more
finely calibrated response. Most obviously, because flight is a
separate offense punishable under the Criminal Code, see nn. 3-4,
supra, the district court can impose a separate sentence
that adequately vindicates the public interest in deter-
17 Even the Eleventh Circuit, we note, seems unprepared to take
such an extreme position. If appellate dismissal were indeed an
appropriate sanction for all acts of judicial defiance, then there
would be no reason to exempt sentencing errors from the scope of
the Holmes rule. See 680 F. 2d, at 1373; supra, at 243. Whether or
not Holmes' distinction between appeals from sentencing errors and
appeals from convictions is logically supportable, see United
States v. Anagnos,
853 F.2d
1,2 (CA11988) (questioning logic of distinction), it reflects
an acknowledgment by the Eleventh Circuit that the sanction of
appellate dismissal should not be wielded indiscriminately as an
all-purpose weapon against defendant misconduct.
248
ring escape and safeguards the dignity of the court. In this
case, for instance, the District Court concluded that a term of
imprisonment of 21 months, followed by three years of supervised
release, would serve these purposes.18 If we assume that there is
merit to petitioner's appeal, then the Eleventh Circuit's dismissal
is tantamount to an additional punishment of 15 years for the same
offense of flight. Cf.
United States v.
Snow,
748 F.2d
928 (CA4 1984).19 Our reasoning in
Molinaro surely does
not compel that result.
Indeed, as Justice Stewart noted in his dissenting opinion in
Estelle v.
Dorrough, 420 U. S., at 544-545,
punishment by appellate dismissal introduces an element of
arbitrariness and irrationality into sentencing for escape.20 Use
of the dismissal sanction as, in practical effect, a second
punishment for a defendant's flight is almost certain to produce
the kind of disparity in sentencing that the Sentencing Reform Act
of 198421 and the Sentencing Guidelines were intended to
eliminate.22
18 See
supra, at 237-238.
19"The Court is not condoning [defendant's] flight from justice.
However, it presumes his actions constitute an independent crime,
i.
e., 'escape from custody.' We refrain from punishing
[defendant] twice by dismissing his appeal."
United States
v.
Snow, 748 F. 2d, at 930, n. 3.
20 "[T]he statute imposes totally irrational punishments upon
those subject to its application. If an escaped felon has been
convicted in violation of law, the loss of his right to appeal
results in his serving a sentence that under law was erroneously
imposed. If, on the other hand, his trial was free of reversible
error, the loss of his right to appeal results in no punishment at
all. And those whose appeals would have been reversed if their
appeals had not been dismissed serve totally disparate sentences,
dependent not upon the circumstances of their escape, but upon
whatever sentences may have been meted out under their invalid
convictions."
Estelle, 420 U. S., at 544.
2118 U. S. C. § 3551
et seq.; 28 U. S. C. §§ 991-998.
22 See generally
Mistretta v.
United States,
488 U. S. 361
(1989) (discussing purpose of Sentencing Reform Act and Sentencing
Guidelines).
The dissent relies heavily on the legitimate interests in
avoiding the "specter of inconsistent judgments," as well as in
preserving "precious appellate resources."
Post, at 255. It
must be remembered, however, that the reason appellate resources
are precious is that they serve the
249
Accordingly, we conclude that while dismissal of an appeal
pending while the defendant is a fugitive may serve substantial
interests, the same interests do not support a rule of dismissal
for all appeals filed by former fugitives, returned to custody
before invocation of the appellate system. Absent some connection
between a defendant's fugitive status and his appeal, as provided
when a defendant is at large during "the ongoing appellate
process,"
Estelle, 420 U. S., at 542, n. 11, the
justifications advanced for dismissal of fugitives' pending appeals
generally will not apply.
We do not ignore the possibility that some actions by a
defendant, though they occur while his case is before the district
court, might have an impact on the appellate process sufficient to
warrant an appellate sanction. For that reason, we do not hold that
a court of appeals is entirely without authority to dismiss an
appeal because of fugitive status predating the appeal. For
example, the Eleventh Circuit, in formulating the
Holmes
rule, expressed concern that a long escape, even if ended before
sentencing and appeal, may so delay the onset of appellate
proceedings that the Government would be prejudiced in locating
witnesses and presenting evidence at retrial after a successful
appeal.
Holmes, 680 F. 2d, at 1374; see also
United
States v.
Persico, 853 F. 2d, at 137. We recognize that
this problem might, in some instances, make dismissal an
appropriate response. In the class of appeals premised on
insufficiency of the evidence, however, in which petitioner's
appeal falls, retrial is not permitted in the event of reversal,
and this type of prejudice to the Government will not serve as a
rationale for dismissal.
Similarly, a defendant's misconduct at the district court level
might somehow make "meaningful appeal impossible,"
Holmes,
680 F. 2d, at 1374, or otherwise disrupt the appellate process so
that an appellate sanction is reasonably imposed.
purpose of administering evenhanded justice. In this case, it is
the dissent's proposed disposition that would produce inconsistent
judgments, as petitioner served a 15-year sentence while his
codefendant's conviction was reversed for insufficiency of
evidence.
250
The appellate courts retain the authority to deal with such
cases, or classes of cases,23 as necessary. Here, for instance,
petitioner's flight prevented the Court of Appeals from
consolidating his appeal with those of his codefendants, which we
assume would be its normal practice. See
United States v.
Mieres-Borges, 919 F. 2d, at 654, n. 1 (noting that
petitioner is absent and not party to appeal). If the Eleventh
Circuit deems this consequence of petitioner's flight a significant
interference with the operation of its appellate process, then,
under the reasoning we employ today, a dismissal rule could
properly be applied.
As this case reaches us, however, there is no reason to believe
that the Eleventh Circuit has made such a judgment. Application of
the
Holmes rule, as formulated by the Eleventh Circuit thus
far, does not require the kind of connection between fugitivity and
the appellate process that we hold necessary today; instead, it may
rest on nothing more than the faulty premise that any act of
judicial defiance, whether or not it affects the appellate process,
is punishable by appellate dismissal. See
Holmes, 680 F. 2d,
at 1374;
supra, at 246. Accordingly, that the Eleventh
Circuit saw fit to dismiss this case under
Holmes does not
by itself reflect a determination
23We cannot agree with petitioner that the courts may only
consider whether to dismiss the appeal of a former fugitive on an
individual, casespecific basis. Though dismissal of fugitive
appeals is always discretionary, in the sense that fugitivity does
not "strip the case of its character as an adjudicable case or
controversy,"
Molinaro v.
New Jersey, 396 U. S. 365, 366
(1970); see also n. 11,
supra, appellate courts may exercise
that discretion by developing generally applicable rules to cover
specific, recurring situations. Indeed, this Court itself has
formulated a general rule allowing for dismissal of petitions that
come before it while the petitioner is at large. See
Smith
v.
United States, 94 U. S. 97 (1876). The
problem with the
Holmes rule is not that the appeals it
reaches are subject to automatic dismissal, but that it reaches too
many appeals-including those of defendants whose former fugitive
status in no way affects the appellate process.
251
that dismissal would be appropriate under the narrower
circumstances we now define.
Nor is there any indication in the record below-either in the
Government's motion to dismiss, or in the Eleventh Circuit's
per
curiam order-that petitioner's former fugitivity was deemed to
present an obstacle to orderly appellate review. Thus, we have no
reason to assume that the Eleventh Circuit would consider the
duplication of resources involved in hearing petitioner's appeal
separately from those of his codefendants-which can of course be
minimized by reliance on the earlier panel decision in
United
States v.
MieresBorges, see
supra, at 238, and n.
6-sufficiently disruptive of the appellate process that dismissal
would be a reasonable response, on the facts of this case and under
the standard we announce today. We leave that determination to the
Court of Appeals on remand.24
In short, when a defendant's flight and recapture occur before
appeal, the defendant's former fugitive status may well lack the
kind of connection to the appellate process that would justify an
appellate sanction of dismissal. In such cases, fugitivity while a
case is pending before a district court, like other contempts of
court, is best sanctioned by the district court itself. The
contempt for the appellate process manifested by flight while a
case is pending on appeal remains subject to the rule of
Molinaro.
24 Neither the reasonableness standard of
Thomas v.
Arn, 474 U. S.
140 (1985), nor Federal Rule of Appellate Procedure 47,
mandates uniformity among the circuits in their approach to
fugitive dismissal rules. See
Thomas, 474 U. S., at 157
(STEVENS, J., dissenting). In other words, so long as all circuit
rules meet the threshold reasonableness requirement, in that they
mandate dismissal only when fugitivity has some connection to the
appellate process, they may vary considerably in their operation.
For this additional reason, we hesitate to decide as a general
matter whether and under what circumstances preappeal flight that
leads to severance of codefendants' appeals will warrant appellate
dismissal, and instead leave that question to the various courts of
appeals.
252
The judgment of the Court of Appeals is vacated, and the case is
remanded for further proceedings consistent with this opinion.
So ordered.
CHIEF JUSTICE REHNQUIST, with whom JUSTICE WHITE, JUSTICE
O'CONNOR, and JUSTICE THOMAS join, dissenting.
The Court holds that, in general, a court of appeals may not
dismiss an appeal based on a defendant's fugitive status if that
status does not coincide with the pendency of the appeal. We
disagree. The only difference between a defendant who absconds
preappeal and one who absconds postappeal is that the former has
filed a notice of appeal while the latter has not. This
"distinction" is not strong enough to support the Court's holding,
for there is as much of a chance that flight will disrupt the
proper functioning of the appellate process if it occurs before the
court of appeals obtains jurisdiction as there is if it occurs
after the court of appeals obtains jurisdiction. As a consequence,
there is no reason why the authority to dismiss an appeal should be
based on the timing of a defendant's escape. Although we agree with
the Court that there must be some "connection" between escape and
the appellate process, we disagree with the conclusion that
recapture before appeal generally breaks the connection.1
It is beyond dispute that the courts of appeals have supervisory
power to create and enforce "procedural rules governing the
management of litigation."
Thomas v.
Arn, 474
1 The Court erroneously strikes the
Holmes rule on the
basis that "it reaches too many appeals,"
ante, at 250, n.
23, because there is no overbreadth doctrine applicable in this
context. See
Broadrick v.
Oklahoma, 413 U. S. 601, 610-611
(1973) (overbreadth doctrine is the exception rather than the rule
because "courts are not roving commissions assigned to pass
judgment on the validity of the Nation's laws"). As long as the
fugitive dismissal rule was applied legally to the facts of this
case, the Eleventh Circuit's rule cannot be struck down. It is for
this reason that we would affirm the Eleventh Circuit rather than
vacating and remanding.
253
u. S. 140, 146 (1985). The only limit on this authority is that
the rules may not violate the Constitution or a statute, and must
be reasonable in light of the concerns they are designed to
address. See id., at 146-148. There can be no argument that the
fugitive dismissal rule employed by the Eleventh Circuit violates
the Constitution because a convicted criminal has no constitutional
right to an appeal.
Abney v.
United States, 431 U. S. 651, 656
(1977). Nor is the rule inconsistent with 28 U. S. C. § 1291, which
grants to criminal defendants the right of appeal, because that
section does not set forth the procedural requirements for
perfecting an appeal. Those requirements are set forth in the
Federal Rules of Appellate Procedure and the local rules of the
courts of appeals. Indeed, under Federal Rule of Appellate
Procedure 47, each court of appeals has authority to make rules
"governing its practice" either through rulemaking or
adjudication.
The fugitive dismissal rule is reasonable in light of the
interests it is designed to protect. In
Molinaro v.
New
Jersey, 396 U. S.
365 (1970), we declined to adjudicate a defendant's case
because he fled after appealing his state conviction. We reasoned
that by absconding, the defendant forfeited his right to "call upon
the resources of the Court for determination of his claims."
Id., at 366. And in
Estelle v.
Dorrough,
420 U. S. 534
(1975), we upheld a Texas statute that mandated dismissal of an
appeal if the defendant fled after invoking the jurisdiction of the
appellate court. We recognized that Texas reasonably has an
interest in discouraging felony escape, encouraging voluntary
surrenders, and promoting the "efficient, dignified operation of
the Texas Court of Criminal Appeals."
Id., at 537. Both
Molinaro and
Estelle are premised on the idea that a
reviewing court may invoke procedural rules to protect its
jurisdiction and to ensure the orderly and efficient use of its
limited resources.
While we agree with the Court that there must be some connection
between fugitivity and the appellate process in
254
order to justify a rule providing for dismissal on that basis,
we do not agree that flight generally does not have the required
connection simply because it occurs before the defendant or his
counsel files a notice of appeal.2 It is fallacious to suggest that
a defendant's actions in fleeing likely will have no effect upon
the appellate process unless those actions occur while the court of
appeals has jurisdiction over the case. Indeed, flight during the
pendency of an appeal may have
less of an effect on the
appellate process, especially in cases where the defendant flees
and is recaptured while the appeal is pending. Because there is no
delay between conviction and invocation of the appellate process,
dismissal in such a case is premised on the mere
threat to
the proper operation of the appellate process. Yet the Court
concedes, as it must, that courts of appeals may dismiss an appeal
in this situation.
Ante, at 239-242; see
Allen v.
Georgia, 166 U. S. 138 (1897).
If, as in the present case, the defendant eventually is
recaptured and resentenced, he obtains a second chance to challenge
his conviction and sentence, and consequently delays the appellate
process by at least the amount of time he managed to elude law
enforcement authorities. We are startled by the Court's assertion
that "any concomitant delay ... likely will exhaust itself well
before the appellate tribunal enters the picture."
Ante, at
245. If the defendant obtains an additional opportunity to file a
timely notice of appeal, the court of appeals, in the absence of a
fugitive dismissal rule or any jurisdictional defect,
must
entertain the appeal. At
2 The very wording of Rule 47, which gives the appellate courts
authority to create local procedural rules, supports the connection
requirement:
"Each court of appeals by action of a majority of the circuit
judges in regular active service may from time to time make and
amend rules gov
erning its practice not inconsistent with
these rules. In all cases not provided for by rule, the courts of
appeals may regulate their practice in any manner not inconsistent
with these rules." Fed. Rule App. Proc. 47 (emphasis added).
255
the very least, the result is an increase in the court's docket
and a blow to docket organization and predictability. This
disruption to the management of the court's docketing procedures is
qualitatively different from delay caused by other factors like
settlement by the parties. Unlike the fugitive's case, the settled
case will not turn up as an additional and unexpected case on the
court's docket some time down the road. And of course, the burden
of delay increases exponentially with the number of defendants who
abscond preappeal, but are recaptured and invoke the appellate
court's jurisdiction in a timely manner. The Court fails to explain
how this obvious delay somehow disappears when the defendant is
recaptured before invoking the appellate court's jurisdiction.
As is demonstrated by the instant case, the delay caused by
preappeal flight can thwart the administration of justice by
forcing a severance, requiring duplication of precious appellate
resources, and raising the specter of inconsistent judgments. Here,
the appellate process was delayed by approximately 19 months
(counting both the period of fugitivity and the time used by the
District Court to resentence petitioner). During this delay, the
Eleventh Circuit heard and decided the appeals filed by
petitioner's codefendants.
United States v.
Mieres-Borges, 919 F.2d
652 (1990), cert. denied, 499 U. S. 980 (1991). Because
petitioner fled, the Eleventh Circuit was unable to consolidate
petitioner's appeal with those filed by his codefendants and
conserve judicial resources. In addition to forcing a severance,
petitioner's flight created a real possibility of inconsistent
judgments. Petitioner's flight "imposed exactly the same burden of
duplication on the court of appeals that it would have if he had
filed his notice of appeal before absconding." Brief for United
States 21. Had petitioner's counsel filed a notice of appeal on
petitioner's behalf while he remained at large, the Court of
Appeals could have dismissed the appeal with prejudice. See
Molinaro, 396 U. S., at 366. Since petitioner's flight had
an adverse effect on the proper functioning of
256
the Eleventh Circuit's process, there is no principled reason
why that court should not be able to dismiss petitioner's
appeal.
In addition to administration, the Eleventh Circuit's fugitive
dismissal rule is supported by an interest in deterring flight and
encouraging voluntary surrender. Due to the adverse effects that
flight, whenever it occurs, can have on the proper functioning of
the appellate process, courts of appeals have an obvious interest
in deterring escape and encouraging voluntary surrender.
Unfortunately, today's opinion only encourages flight and
discourages surrender. To a defendant deciding whether to flee
before or after filing a notice of appeal, today's decision makes
the choice simple. If the defendant flees preappeal and happens to
get caught after the time for filing a notice of appeal has
expired, he still has the opportunity for appellate review if he
can persuade a district judge to resentence him. If the district
judge refuses, the defendant is at no more of a disadvantage than
he would have been had he escaped after filing an appeal since
flight after appeal can automatically extinguish the right to
appellate review. See
Molinaro, supra.
A rule permitting dismissal when a defendant's flight interrupts
the appellate process protects respect for the judicial system.
When a defendant escapes, whether before or after lodging an
appeal, he flouts the authority of the judi
cial process, of
which the court of appeals is an integral part. Surely the Court
does not mean to argue that a defendant who escapes during district
court proceedings intends only disrespect for that tribunal. Quite
obviously, a fleeing defendant has no intention of returning, at
least voluntarily. His flight therefore demonstrates an equal
amount of disrespect for the authority of the court of appeals as
it does for the district court. Viewed in this light, the "finely
calibrated response" available to the district court,
ante,
at 247, does nothing to vindicate the affront to the appellate
process. The Court's argument is not enhanced by the use of
far-
257
fetched hypotheticals, see
ante, at 246, because the
dignity rationale does not exist in a vacuum. As outlined above, a
reviewing court may not dismiss an appeal in the absence of some
effect on its orderly functioning.
While the Court recognizes that the reasoning underlying the
opinion requires an exception for cases in which flight throws a
wrench into the proper workings of the appellate process,
ante, at 249-250, its rule is too narrow. The Court limits
the exception to cases in which flight creates a "significant
interference with the operation of [the] appellate process."
Ante, at 250. Translated, the rule applies preappeal only
when retrial is hampered, a "'meaningful appeal [is] impossible,'"
or the case involves multiple defendants, thereby causing a forced
severance.
Ante, at 249-250. This grudging concession is
insufficient because it fails to include those cases where sheer
delay caused by the fugitivity of the lone defendant has an adverse
effect on the appellate process.
In sum, courts of appeals have supervisory authority, both
inherent and under Rule 47, to create and enforce procedural rules
designed to promote the management of their docket. Fugitivity
dismissal rules are no exception. In cases where fugitivity
obstructs the orderly workings of the appellate process, this
authority is properly exercised. Because petitioner's flight
delayed the appellate process by approximately 19 months, and
involved the burden of duplication and the risk of inconsistent
judgments, we would hold that the Eleventh Circuit properly applied
its fugitive dismissal rule in this case.
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