The fugitive dismissal rule applied to pre-appeal fugitivity.

AuthorJoseph, Jason W.
PositionSupreme Court Review - Case Note

    In Ortega-Rodriguez v. United States,(1) the United States Supreme Court held that appellate courts may dismiss the appeal of a criminal defendant who becomes a fugitive if the fugitive status has sufficient connection to the appellate process.(2) However, the Court also held that when the fugitive status occurs prior to the filing of the appeal, such status generally lacks the requisite connection to dismiss the appeal.(3) The Court did, however, state that in certain exceptional situations the appellate courts could apply general rules of dismissal to pre-appeal flights.(4)

    This Note argues that, while the Court correctly concluded that pre-appeal flight generally lacks sufficient connection to the appellate process to warrant dismissal, the Court incorrectly reasoned that the justifications supporting dismissal in post-appeal flight cases do not apply to pre-appeal flights. In addition, this Note argues that the Court properly permitted appellate courts to exercise discretion through applying general rules of dismissal to specific, recurring situations in which pre-appeal flight is sufficiently connected to the appellate process. Finally, this Note predicts the future applicability of the fugitive dismissal rule to pre-appeal flights after Ortega-Rodriguez.


    The fugitive dismissal rule provides federal appellate courts with the authority to dismiss the appeal of a criminal defendant if the defendant becomes a fugitive while the appeal is pending.(5) criminal defendant does not have a constitutional right to an appeal.(6) Instead, the right to an appeal is provided for by federal statute.(7) For this reason, appellate courts have the authority to promulgate the procedural rules for perfecting an appeal.(8) The fugitive dismissal rule has been developed based on this authority. The United States Supreme Court and various circuit courts have advanced several justifications for this rule.

    The Supreme Court first adopted the fugitive dismissal rule in Smith v. United States.(9) In Smith, the Court dismissed the defendant's writ of error because the defendant had escaped and was not under the control of the court.(10) The Court in Smith based its decision on the concern that any judgment it issued would be unenforceable.(11) It stated, "[i]t 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."(12) The Supreme Court has continued to advance the enforceability justification in support of dismissing fugitive appeals.(13) The Court has gone even further and stated that fugitive appeals may be dismissed even if the defendant is recaptured before any appellate action is taken.(14)

    The Supreme Court provided another justification for the fugitive dismissal rule in Molinaro v. New Jersey.(15) The defendant in Molinaro, convicted of abortion and conspiracy to commit abortion, failed to surrender himself after he had appealed.(16) In dismissing the appeal, the Molinaro Court reasoned that the defendant, by escaping after he appealed, became disentitled to an appeal.(17) The Court has voiced other justifications for a dismissal rule as well. In Estelle v. Dorrough,(18) the Court upheld the constitutionality of a Texas statute that provided for the automatic dismissal of an appeal by a felony defendant if he escaped while the appeal is pending.(19) In so doing, the Supreme Court reasoned that the statute discouraged escape and encouraged voluntary surrender, and also that it promoted "the efficient, dignified operation of the Texas Court of Criminal Appeals."(20)

    In short, the Supreme Court has consistently approved the dismissal of a criminal defendant's appeal if the defendant becomes a fugitive while the appeal is pending.(21) In addition, the Court has ruled that dismissal is appropriate even when a defendant is recaptured before the court of appeals has acted.(22) Prior to Ortega-Rodriguez United States, however, the Supreme Court had never been confronted with the issue of whether a court may dismiss the appeal of a defendant who escapes and is recaptured before invoking appellate jurisdiction.

    Several appellate courts have addressed this issue, however. The different approaches of the circuits can be classified into three categories: those that follow the Eleventh Circuit's dismissal rule, those that do not follow the Eleventh Circuit's dismissal rule, and those who have not confronted the issue.(23)

    The Eleventh Circuit has extended the fugitive dismissal rule to apply to defendants who flee before filing notice of appeal.(24) In United States v. Holmes,(25) the Eleventh Circuit held that a defendant who flees after conviction, but before sentencing, waives his right to appeal from the conviction unless the defendant can show that his escape was due to matters completely beyond his control.(26)

    The Holmes court based its decision on several factors. First, the court noted that flight after conviction would postpone filing a notice of appeal, and the resulting delay would "make a meaningful appeal impossible in many cases."(27) Second, the court reasoned that if there were a reversal, the delay caused by pre-appeal flight would prejudice the government in locating witnesses and retrying the case.(28) Third, the court held that defendants who flee before appeal are equally disentitled to call upon the resources of the court of appeals as are defendants who flee after filing an appeal.(29)

    Subsequent to Holmes, the Eleventh Circuit has expanded its dismissal rule to include defendants who flee during trial. In United States v. London,(30) the Eleventh Circuit followed its decision in Holmes and dismissed the appeal of a defendant who fled while his case was on trial and remained a fugitive for three years.(31) The London court noted that "the defendant disrupted a prolonged trial and flaunted his disregard for the orderly court procedures for the determination of whether he was guilty or not guilty."(32) The court concluded that the justifications for dismissing the appeal of a defendant who flees before conviction are more compelling than those for a defendant who flees after conviction, such as the defendant in Holmes.(33) Accordingly, the Eleventh Circuit's fugitive dismissal rule applies to defendants who abscond at any time either before or after filing notice of appeal.

    Not all circuit courts are, however, in agreement with the Eleventh Circuit. Of the five circuit courts that have ruled on this issue, three circuits have followed the Eleventh Circuit's rule and two circuits have declined to follow the Eleventh Circuit.

    The Second, Third, and Fifth Circuits have extended the fugitive dismissal rule to include cases in which defendants flee before filing notice of appeal.(34) The decisions by these circuits and the decision by the Eleventh Circuit differ in only one respect. The Second, Third and Fifth Circuits have all indicated that, in dismissing the appeals of defendants who fled prior to appealing, they were exercising judicial discretion.(35) In contrast, the Eleventh Circuit stated in Holmes that the defendant, by fleeing before appeal, "waive[d] his right to appeal."(36) Thus, it would appear that the Eleventh Circuit's dismissal rule is automatically applied in pre-appeal flight situations, while the other circuits exercise discretion in pre-appeal flight cases.

    The First and Ninth Circuits have declined to follow the Eleventh Circuit's pre-appeal dismissal rule.(37) In United States v. Anagnos,(38) the First Circuit denied the government's motion to dismiss the appeal of a defendant who fled after conviction but before sentencing.(39) The Anagnos court refused to extend its dismissal rule beyond one which dismisses the appeal of a defendant who flees after filing notice of appeal but is recaptured and in custody at the time the appellate court takes any action.(40) As the Anagnos court stated, "[defendant's] misconduct was in the district court, and should affect consequences in that court, not in ours."(41)

    While the First Circuit expressly declined to follow the Eleventh Circuit,(42) the Ninth Circuit, in Katz v. United States,(43) only implicitly rejected the Eleventh Circuit's dismissal rule. In Katz, the Ninth Circuit denied the government's motion to dismiss the appeal of a defendant who fled after filing an appeal but was recaptured and in custody at the time the government's motion was heard.(44) The Katz court reasoned that the disentitlement doctrine did not apply "when the person seeking judicial relief is no longer a fugitive."(45) If the Ninth Circuit refused to dismiss the appeal of a defendant who flees after filing an appeal, it follows that the Ninth Circuit would most likely have rejected the Eleventh Circuit's rule of dismissal of preappeal flight cases.

    At the time the Supreme Court decided Ortega-Rodriguez, the remaining courts of appeals--the Fourth, Sixth, Seventh, Eighth, Tenth, and D.C. Circuits--had not been confronted with the issue of fugitive dismissal for pre-appeal flights, and had not indicated in any way whether they would follow the Eleventh Circuit's fugitive dismissal rule. The Supreme Court therefore attempted to guide the appellate courts with respect to this issue in Ortega-Rodriguez.


    On November 7, 1988, a customs service pilot observed a low flying airplane dropping bales to a boat circling in the waters near Cay Sal Bank, located approximately midway between the Florida Keys and Cuba.(46) The customs plane was flying too high to identify the boat, but the pilot described the boat as a forty to fifty-foot white vessel.(47) The next morning, a different customs pilot spotted a boat resembling the one seen the day before, thirty miles from where the bales were dropped, headed toward Cuba.(48) The pilot observed numerous bales stacked on the nearby...

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