ORTEGA-RODRIGUEZ v. UNITED STATES
Argument of James Robert Gailey
Chief Justice Rehnquist: We'll hear argument next in No. 91-7749, Jose Antonio Ortega-Rodriguez v. United States.
Mr. Gailey, you may proceed.
Mr. Gailey: Mr. Chief Justice, and may it please the Court:
The Government and the petitioner now agree that a former, fugitive from sentencing does not, automatically forfeit his right to challenge his conviction on appeal.
The only issue left for this Court to decide is whether the Court of Appeals for the Eleventh Circuit abused its discretion in denying petitioner his access to appeal.
We say it did, for three reasons: one, there was no prejudice--
Unknown Speaker: Well... Mr. Gailey... let me find out about what you and the Government... you say... agree to here.
You... you both agree that the right to appeal may be forfeited if there is a case-by-case analysis, so to speak?
Mr. Gailey: --Yes, Your Honor, we do agree that undertaking a case-by-case analysis, in the proper case, may result in a dismissal of an appeal.
This is through the court's inherent powers to regulate its own affairs.
We do not believe that the... the automatic rule, as the Eleventh Circuit employs, is a proper exercise of those supervisory powers, and consequently, in this case it was an abuse of discretion not to have allowed the appeal to go forward.
The three reasons why we believe--
Unknown Speaker: While you are there, what if that automatic rule would be bad; but a lesser automatic rule would have been okay, an automatic rule involving fewer situations would have been okay... and this situation comes within that lesser category?
What would be the situation then?
Mr. Gailey: --I do... I do not believe, Justice Scalia, that the court, in exercising its supervisory powers can have any automatic rule.
Congress has conferred jurisdiction upon the appellate courts to hear such appeals.
The court, in exercising its supervisory powers... that is, powers that are necessary for the courts to function... have, from time to time... and including cases in front of this Court... have dismissed appeals.
So it is the petitioner's--
Unknown Speaker: Cannot have any precedent... precedential decisions, then, can't say, you know, whenever fact A, B, and C is present, you lose.
You can't do that?
That's just ordinary precedent.
I thought everything we do is governed by precedent.
Mr. Gailey: --Your Honor, that is ordinary precedent.
The problem that petitioner has with that approach to the problem, though, is that Congress has conferred the jurisdiction... not the courts.
The courts cannot limit their own jurisdiction but for an exercise of these inherent powers that the courts have.
Unknown Speaker: They have to reinvent the wheel every time a case comes... I mean, the judge can't say, gee, we had a case just like this 2 weeks ago, and there we held factors A, B, and C being present, you're out.
But we have to rethink it again this time.
They really have to do that?
Mr. Gailey: Yes, and the reason why is that Congress conferred the jurisdiction.
Congress can limit it... as this Court, faced with a Texas legislative decision in Estelle v. Dorrough, where the Texas legislature limited the legislatively granted right to appeal.
We do believe that the discretionary analysis in this case was abused for three reasons.
And these three reasons are ones that historically courts have looked at in order to determine whether or not, in its discretion, and in the exercises of its supervisory powers, a court ought to decline to hear an appeal.
Those three grounds are: no prejudice... prejudice in the appellate court; prejudiced into potential post-appellate proceedings; and the vindication of the court's authority.
In this case, under the analysis of all three of those factors, it would have been an abuse of discretion not to have gone forward with the appeal.
So on factor number one... prejudice to the appellate court... there was none.
This issue on appeal--
Unknown Speaker: Is it a flat rule that someone who absconds while his appeal is pending has... deserves to have his appeal dismissed?
Mr. Gailey: --If someone absconds while his appeal is pending, as this Court reasoned in a line of cases beginning with Smith--
Unknown Speaker: Well, that's a pretty flat rule, isn't it?
Mr. Gailey: --Yes, Your Honor, but the--
Unknown Speaker: Well, that isn't... that is nothing case to case about that.
Mr. Gailey: --Well, except that the court always... when they made the determination, they did not exercise it in an automatic fashion.
This Court, while it looked at fugitives during an appeal pending, and expressed concerns about... ah--
Unknown Speaker: We thought there was... apparently we thought there was a class of cases where the... where you could dispense with case-by-case analysis, because you would always come out the same way.
Mr. Gailey: --This Court never... well... this Court, nevertheless, undertook such analysis.
And, as a matter of fact, Your Honor--
Unknown Speaker: Well, for a class of cases.
Mr. Gailey: --I'm sorry?
Unknown Speaker: For a class of cases, I suppose.
Mr. Gailey: The class being fugitive--
Unknown Speaker: Or was that just for the... was that just for the case that we had before us?
Mr. Gailey: --The class that Your Honor is referring to is the case where the fugitives are pending appeal... out, pending appeal.
The Court has ruled on cases where fugitives have been fugitives at the time appeal was pending.
However, in those cases, the Court was reversing a favorable result at the court of appeals level.
Nevertheless, the Court did not take the position that automatically, because the fugitive had left during the appeal pending, that the court was divested of jurisdiction in some fashion.
Rather, the Court looked at the individual case, and made a determination whether or not in this Court's powers, it ought to decline to hear the appeal.
Unknown Speaker: I don't think you should lump together, Mr. Gailey, the cases we've had from State courts involving this, and the cases from Federal courts.
Because our only authority over State courts is the Constitution.
Whereas, here you're relying... at least in part... on the congressional grant of the right of appeal.
Mr. Gailey: That's correct, Your Honor.
And I did not mean to lump those two things together.
What I was merely trying to illustrate... inarticulately though it may have been... was that this Court even when the court declined to hear an appeal, it did not set down an automatic rule.
Rather, it... it made reference to the fact that it had the authority not to hear the appeal, but did not say that it was divested somehow of jurisdiction because the appeal... because the petitioner was a fugitive.
In addition, in this particular case--
Unknown Speaker: Well, suppose that in this case, your client had absconded and was absent for 3 years during which time an appeal had been pending and was dismissed.
Could you argue that the dismissal was invalid at that point?
Mr. Gailey: --Possibly, although obviously, as Your Honor points out, the longer and more protracted the period of fugitivity, the more likely it will be that the very nature of the fugitivity during the appellate process has some way compromised the appellate court's ability to deal with the appeal.
However, it is still in the court's... it is still a discretionary, rather than a mandatory, reflexive application of a rule.
Because in this particular case, I would suggest to the Court, that because the issue is strictly and solely sufficiency of the evidence, and because the record has already been prepared and the briefs are already filed, that even a period of fugitivity for 3 years might not necessarily result in an automatic dismissal.
At that point, Your Honor, I believe that the third issue that courts look at... vindication of the court's authority... would largely come into play.
And this Court has consistently... or at least consistently when the petitioner was the... the criminal defendant... has consistently denied that kind of relief.
In this case, the appeal... the record has been prepared, the brief has been filed.
The only issue in the case is sufficiency of the evidence.
And, moreover, the merits of the appeal are not just abstract.
Rather, a similarly situated codefendant has had his conviction reversed because of the insufficiency of the evidence.
The defendant in this case received a 15-year sentence on the same case for which the court of appeals for the similarly situated codefendant reversed the conviction.
Unknown Speaker: Are you suggesting that one factor that must be considered is the likelihood of success on appeal?
Mr. Gailey: That is one of the factors, Your Honor, that has been considered in the past in evaluating whether or not a court ought to dismiss an appeal.
That is one of the factors.
Unknown Speaker: Ah... That really doesn't make a lot of sense, does it?
I mean if you're going to dismiss an appeal, you're saying you're not entitled to the judgment of the court on the merits of your case because you have, in some way, defaulted or waived.
And so to take into account whether or not you would have had much of a go at it, had you not defaulted, it seems inconsistent.
Mr. Gailey: Well, it very well may be in many cases.
However, there are some cases, for example, where there may be plain error.
Or, there may be misconduct on the part of the Government in final argument.
Or, the court may not have given an instruction that the appellate court believes ought to have been given.
And because of the significance of the particular instruction, may choose to go forward with the appeal.
So the essence of what the petitioner has been saying all along is that it is a discretionary call on the part of the court, and not a woodenly applied, automatic--
Unknown Speaker: So, an appellate court can say we'd... under our other factors we'd hold you had defaulted.
But this is a kind of a case we've been looking for for a long time to decide on the merits.
So we're going to do it.
That would be permissible?
Mr. Gailey: --Some appellate courts have, in fact, done that.
Unknown Speaker: So--
Mr. Gailey: The second factor--
Unknown Speaker: --so you really want a... a kind of a three-prong test, plus anything else the court wants to bring in.
Because this doesn't fit in your three prongs.
Mr. Gailey: --It's a discretionary analysis, Your Honor.
And the court is... is... in--
Unknown Speaker: But all I'm saying is... I thought your argument began by saying there's a... essentially a three-part inquiry.
And you're going beyond that.
Mr. Gailey: --I am going beyond that, only because of the nature of... of the... the merits on appeal is one of the factors that has been looked at.
Although, quite practically speaking, I have lumped that into factor number two, which focuses on the potential--
Unknown Speaker: On prejudice to the appellate process?
Mr. Gailey: --That's correct.
Unknown Speaker: How does it fit there?
Mr. Gailey: Well, in a case where the case has merit, but the period of fugitivity has been protract... a protracted period of time, it may be impossible or impractical for the Government to reprosecute.
So in that case, rather than militating in favor of hearing the appeal, the court... within its supervisory powers... might choose not to hear the appeal, in applying its discretion.
Unknown Speaker: So the greater the chances of success, the less likelihood of being given relief?
Mr. Gailey: The greater the chances of success on the appeal--
Unknown Speaker: On appeal.
Mr. Gailey: --the greater the likelihood.
I... it's difficult for me to quantify exactly how those factors will play out.
Because the court's question seemingly would involve almost any analysis in almost any case.
And obviously, it's going to depend upon the facts and circumstances in an individual case, as to whether or not the court wants to use its discretion in refusing to hear an appeal.
In this... I'm sorry, Justice Scalia, did you have--
Unknown Speaker: Well, finish that, if you were answering that.
Mr. Gailey: --I was moving on to another point.
Unknown Speaker: Oh good.
Well, don't move on just for a minute.
Mr. Gailey: Okay.
Unknown Speaker: I assume that... that... that the consequence of your proposition that each case has to be decided on its own facts is that there is no such thing as an abuse of discretion, right?
I... I guess... I guess a court could never be reversed for either... either dismissing or not dismissing because of the fugitiveness.
What basis would you have to reverse?
I mean you reverse because some general has been violated.
And you're telling us there are no general principles.
Mr. Gailey: I believe that in a case where the court exercises its discretion not to hear an appeal, that that is always subject to an abuse-of-discretion analysis.
Unknown Speaker: Well, how could you possibly abuse discretion that is not subject to any general rules?
You say that no general rules exist.
Mr. Gailey: The general rules that exist are that the right to appeal is fundamental, especially in a criminal case.
The other proposition is that in spite of the right to appeal, which is a congressionally conferred right, that the court, in an exercise of its inherent powers, can limit the right to appeal in certain classes of cases where there has been some fugitivity.
It is impossible to set down a brightline rule to say that if a defendant is gone more than X-number of days or months, that there is going to be some sort of prejudice presumed.
Because in some cases, a period of fugitivity of less than that might well militate against going forward with the appeal.
If, for example, witnesses have died, or their memories have dimmed... or things of that sort... and the relief being sought would require a retrial... in those cases, the court, within its supervisory powers, might well determine not to go forward with the appeal.
Nevertheless, there's a whole other class of cases where a period of fugitivity might be even longer, where there is no good reason for the court to exercise its discretion and limit its jurisdiction in that way.
Unknown Speaker: You mean there's no... there's no... there's no good reason for it deciding not to hear the appeal.
Not it isn't limiting its jurisdiction.
Mr. Gailey: That's... well, that's correct, not to hear the appeal.
In this case, with reference to the second prong about appellate post... potential postappellate proceedings, the only issue is sufficiency of the evidence.
There will be no retrial.
There will not be any prejudice to the Government which might be attendant to a reprosecution after a period of time.
The third prong is the vindication of the court's authority.
Unknown Speaker: When you say the only issue is sufficiency of the evidence, you mean that no... no question is being-raised on appeal about improper evidence admitted, or that sort of thing?
Mr. Gailey: No, Your Honor.
Unknown Speaker: It's just strictly one question: was there sufficient evidence to support a finding of guilt?
Mr. Gailey: That's correct.
Unknown Speaker: Which you say has already been decided.
Mr. Gailey: Well, it has been decided--
Unknown Speaker: In another party's case.
Mr. Gailey: --as to a codefendant that is similarly situated.
The third prong is... is... that other courts have looked at, is the vindication of the court's authority.
In this case, the petitioner has been prosecuted by the Government, convicted, and sentenced by the district court for violations of contempt of court, as well as Bond Reform Act violations.
He has been sentenced to a period of 21 years... or 21 months' incarceration for committing that violation.
Consequently, the authority of the district court has been vindicated by the petitioner's period of fugitivity.
Unknown Speaker: Well, you could always say that.
You know... if someone coming back after 20 years... if they get a sentence for absconding as well.
But again, that is only one of the factors that courts have looked at, and only one of the factors that we believe are appropriate for inquiry.
But you say that factor is satisfied by the appealing defendant in every case where he is sentenced for his offense of bail jumping... or whatever it was.
Mr. Gailey: Not necessarily in every case, but certainly in a case where the period of fugitivity begins before the appellate process starts off, and he has not been a fugitive, and has been available to accept the consequences of an adverse ruling at the court of appeals.
In those cases--
Unknown Speaker: Well, of course, the only real... that really is fortuitous in this case.
It's not as if your client returned voluntarily.
He was caught.
Mr. Gailey: --He was... he was arrested.
Unknown Speaker: Yeah.
Mr. Gailey: That's correct.
Unknown Speaker: Well, so he gets credit for that?
Mr. Gailey: He doesn't get credit for that.
He gets punished for that, as he has been, by prosecution and conviction for those two statutes.
Unknown Speaker: But he, nonetheless, gets favorable treatment because he was back... albeit not of his own will.
Mr. Gailey: It's not a matter of favorable treatment, Your Honor.
What it is a matter of is participating in his rights to appeal when there is no reason not to have the appeal go forward.
Again, the decisions regarding the parameters of the appellate process are defined by Congress.
If Congress had chosen... as they did in the... in enacting the Bond Reform Act... they mentioned contempt of court, as well as violation of 3146 directly.
Unknown Speaker: What about dismissing an appeal for failure to file a timely notice?
Congress hasn't provided the... the Rules provide the notice, don't they?
Mr. Gailey: That's correct.
Unknown Speaker: Is that a violation of Congress' conferring of a right to appeal?
Mr. Gailey: Not at all.
Because within the rulemaking authority of the courts, timetables and time limits can be established in order to regulate the appeals in the litigation before the court.
That is not present in this case.
Unknown Speaker: No, but that is an example of a rule that certainly impinges on an unlimited right to take advantage of the congressional right.
And what the Government is saying is that the courts of appeals have rulemaking authority in this area, too.
Mr. Gailey: Exactly right, Your Honor.
However, the rulemaking authority cannot be in conflict with the Constitution or with statutory rights, and can neither enlarge or abridge any rights that are thus conferred.
Unknown Speaker: I didn't understand you to make any constitutional claim in this case.
Mr. Gailey: We did not make a constitutional claim.
I'm trying to draw the distinction between the rulemaking authority of the court in a matter of regulating the appellate practice before it, and deciding to have a blanket rule which exercises nonjurisdiction in cases where there has been a period of fugitivity.
Unknown Speaker: Has--
--Would you say that it was an abuse of the court's discretion in a case in which there had not been a prosecution for escape, for the court to say look, I don't want to encourage the United States Attorney to waste more court time on... on... on escape prosecutions.
And I will simply cut off the right to appeal.
I will simply find the right to appeal waived, and that will teach him a lesson.
In that case, there would have been no independent vindication.
So would that be a proper use of the court's power to vindicate its position?
Mr. Gailey: No, I do not believe that it would be.
Unknown Speaker: Well, if it wouldn't be, then isn't the answer... isn't it going to be the case that in every case... whether a person has been prosecuted for escape or not... he could be; and whether bail has been revoked or not, it could be.
So that in every case, your third prong, in fact, is going to result in a finding favorable to the party who now wants to... to the fugitive who now wants to appeal?
Mr. Gailey: I do believe, Your Honor, that that third prong is one of lesser significance than the first two... primarily because Congress has spoken in the contempt statute, as well as the Bond Reform Act statute, in this whole area of vindication of the court's authority.
Unknown Speaker: Well, given the fact that Congress has so spoken, what kind of a case might result in an act of discretion favorable to... to a waiver conclusion, as opposed to a nonwaiver conclusion?
When would you ever come out against you?
Mr. Gailey: Focusing just on the third prong?
Unknown Speaker: Yeah.
Mr. Gailey: I suppose that if the period of fugitivity directly occurred while the appeal was pending... as this Court has been faced with on several occasions... there, I believe that as a response to that the court would be within its rights to dismiss the appeal.
Unknown Speaker: Why?
I mean they can still go after him for escape.
They can still revoke the bail.
Why does the court need it in that case, rather than in the case in which he appeals... in which he escapes before the appeal has begun?
Mr. Gailey: Because the court has the right to regulate the matters that are before it.
And in the hypothec that Your Honor poses--
Unknown Speaker: You're saying it's like direct contempt, as opposed to indirect contempt?
Mr. Gailey: --It would directly affect this Court or the appellate court's function.
The Court of Appeals for the Eleventh--
Unknown Speaker: Why?
They can go ahead and decide the appeal.
The defendant is never in the courtroom for an appeal.
Mr. Gailey: --The reasons why were set forth in the whole line of cases beginning with Smith, over 100 years ago... or nearly 100 years ago.
Unknown Speaker: Yeah, but I think you're undercutting that.
I mean you're... you're... I don't see why your rationale for prosecution and bail revocation doesn't undercut the rationale for the so-called kind of direct-contempt analysis.
Mr. Gailey: It's not a direct-contempt analysis.
Rather, it is an inherent-power analysis, where this court has the right to regulate the matters that are before it.
And in the case where an appeal is pending before it, and this court recognizes that because the defendant is gone, he or she is not available to accept the consequences of an adverse judgment, this court... in a vindication of its authority... can dismiss the appeal.
However, I do not believe that there is any case which holds, by either the court of appeals or this Court, that automatically if there is a period of fugitivity at the district court level that the Supreme Court or the court of appeals can just dismiss the appeal.
Unknown Speaker: Mr. Gailey, can you explain to me why you are willing to concede... as I think you have... that courts without special statutory authorization can establish time limits for filing of notice of appeal and say if you don't meet those limits, you are out; without going case by case and saying well, you know, this fellow came within 2 weeks, but there's a lot of trouble at home.
It isn't a case-by-case evaluation.
You have a time limit, and that's it.
Mr. Gailey: Not at all.
Unknown Speaker: Now, why is it okay there, but it's not okay here?
Mr. Gailey: First of all, those rules that the Court suggest are ones that are the product of... of thoughtful analysis and discretion and are the end result of... at least according to the Rules of Appellate Procedure in an appellate court context... a majority vote by the court of appeals judges.
With reference to the Appellate Rules, themselves, or the Criminal Rules of Procedure, this Court and the Congress... Congress then adopts, in statutory form, those rules.
They are there as expressions of the court's power to regulate the matters before it.
This case, there is nothing before the court of appeals.
Unknown Speaker: I don't understand... you mean those rules would not... a court would not be able to have such rules unless they were submitted to Congress and made statutory?
Is that it?
Mr. Gailey: Not at all.
Unknown Speaker: You can have those rules.
Mr. Gailey: Of course.
Unknown Speaker: In the exercise of its own supervisory authority.
Mr. Gailey: --Precisely.
Except when that power is exercised, it's got to be... it cannot be in noncompliance with either statutory right or congressional right.
And in this Court... this Court looked at a similar rule in the Thomas v. Arn case where you had an expression by Congress of a limitation of the right to appeal from magistrates' orders.
The Court went to great lengths to ascertain and to conclude that it was not an arbitrary rule; that it was not a jurisdiction rule.
And one of the things they looked at was the fact that in a recent case, the court had declined to treat it as a waiver.
Unknown Speaker: But it didn't... but we didn't ascertain that it was not a rule, which is what you want us to ascertain here.
You want us to say since it is a rule, it's bad.
Mr. Gailey: No... I'm sorry if I've... I've misled the Court if that's the conclusion that you have.
It's not that if it's a rule that it's bad.
But rather, when an appellate court attempts to use its discretion not to hear an appeal for which jurisdiction is conferred by Congress, that there... it needs to be done in conformity with its supervisory powers.
And in this particular case, there is no reason for the Court of Appeals for the Eleventh Circuit to have denied the petitioner the right to have his case on appeal.
Unknown Speaker: Well, I wonder if--
Yes, I wonder if that's true.
Because his flight kept this case alive much longer than it otherwise would have been kept alive.
He was gone what, 3 years?
Mr. Gailey: He was gone for 11 months, Your Honor.
Unknown Speaker: 11 months... well, for 11 months, because he wasn't present at his sentencing, he had a right to resentencing, because he had to be present.
Isn't that what... and therefore, they resentenced.
But that was all because of his flight, that it postponed for 11 months.
Therefore the whole appellate process is 11 months behind schedule.
Mr. Gailey: That's correct.
Unknown Speaker: So there was at least a reason why one could conclude that his flight had an adverse impact on the appellate process.
Mr. Gailey: Except the court didn't so conclude.
Rather, the argument made below was that just by virtue of the fugitive status, he was precluded from an appeal.
So there was not any sort of analysis at all done about whether or not the court of appeals, in its discretion, ought not to go forward with the appeal.
Unknown Speaker: Well, they didn't write... they didn't really write an opinion explaining what they did, did they?
I can't remember.
Mr. Gailey: They merely... they granted the Government's motion to dismiss.
And the argument on that motion was based on preclusion, not based on any discretionary analysis.
Unknown Speaker: Did the defendant have a right to be resentenced, or could the trial court have said, no.
We sentenced you in absentia, and that's it.
Mr. Gailey: The trial court was convinced that--
Unknown Speaker: Well, did the trial court have to resentence him?
Mr. Gailey: --The trial court did not have to resentence him.
Unknown Speaker: And had it not, then the appeal time would have run, and he'd be out.
Mr. Gailey: If not, then the appeal time would have been run... had run, and he would have been out.
Unknown Speaker: What was the authority of the district court to reopen the sentence, anyway?
Mr. Gailey: Based upon the fact that the defendant was not present and could not allocute on his own behalf, the district court was satisfied that the sentencing ought to be vacated and resentenced.
Unknown Speaker: Well, what's the authority of the district court to do that?
Mr. Gailey: The authority... there is a... a case in the Eleventh Circuit which allows the court, in its supervisory powers, to do that.
So the district court judge did do that--
Unknown Speaker: You can vacate the sentence at any time if the defendant had been sentenced in absentia?
Mr. Gailey: --That's not the rule.
Rather, the court made the determination... the district court judge made the determination.
Unknown Speaker: I'm asking what the Eleventh Circuit's authority said.
In what circumstances can a district judge reopen a sentencing after the period for modification has run, under the Federal Rules--
Mr. Gailey: When--
Unknown Speaker: --of Criminal Procedure?
Mr. Gailey: --I'm sorry.
When the court is satisfied that in the particular case, the sentencing ought to be reopened.
And in this particular case, the district court judge did express that--
Unknown Speaker: So the Eleventh Circuit says that any time a district court judge is satisfied sentencing has to... may be reopened, and it can do it, despite the provisions of the Federal Rules of Criminal Procedure?
Mr. Gailey: --The district court judge had the discretion, and still had jurisdiction over the case.
The argument made below was... dealt with his presence at the sentencing, as well as whether or not the court ought to have sentenced him in absentia, since there was a question about whether notice had been given.
Unknown Speaker: Oh--
Mr. Gailey: I'm sorry.
Unknown Speaker: --I wouldn't think there would be many cases like this, where you can be gone for 11 months and still have a right to appeal.
I suppose if... if you take off... if the defendant takes off and stays away longer than his appeal time, why normally he just can't take an appeal.
And you don't object to that.
You say that courts of appeals can set times at which appeals have to be taken.
Mr. Gailey: That's correct.
Unknown Speaker: And certainly Congress can do that by statute.
Mr. Gailey: That's correct.
Unknown Speaker: --if you're gone longer... if you run off and stay longer than your appeal time allows, you're out, normally.
Mr. Gailey: Normally that's true, Your Honor.
Unknown Speaker: Unless you can convince some district judge to do what happened here.
Mr. Gailey: Normally that would be true.
Thank you, Your Honor.
Unknown Speaker: Thank you, Mr. Gailey.
Ms. Wax, we'll hear from you.
Argument of Amy L. Wax
Mr. Wax: Mr. Chief Justice, and may it please the Court:
Petitioner starts out his argument by saying that the Government concedes that fugitivity does not automatically lead to forfeiture of an appeal.
That is a highly misleading statement.
We agree that the mere fact that someone is fugitive does not require any court of appeals to dismiss his court of appeals to dismiss his appeal because there is no requirement that any court of appeals adopt the disentitlement doctrine, or extend the rule of dismissal for fugitivity to preappeal flight.
Unknown Speaker: Ms. Wax, do you mind starting at the beginning?
Is this case just a fluke?
I mean this man was resentenced when he didn't have to be?
Is that right?
Mr. Wax: --Well--
Unknown Speaker: What's the authority for resentencing?
Mr. Wax: --It's a bit mysterious, Justice O'Connor.
But as we understand it... we understand the district court to have, in effect, granted a 2255 motion.
Or, that's how we think--
Unknown Speaker: What's that?
Mr. Wax: --the petitioner's motion was styled.
A motion for a correction of sentence, because the sentence was illegally imposed.
Unknown Speaker: Did he get a longer or a shorter sentence?
Mr. Wax: He got a shorter sentence, Your Honor.
When he filed his motion, after returning... after being recaptured, he filed a motion with the district court, citing Rule 43 and Rule 32: Rule 43, which has to do with proceedings in absentia; and Rule 32 which governs sentencing, you know, procedures at sentencing... the right of allocution, the right to be informed of your right to appeal, et cetera.
And as we understand it--
Unknown Speaker: Did the district court have authority, then, to reopen the sentence?
Mr. Wax: --Well, let's put it... I'm not sure, is the answer.
The Government did not--
Unknown Speaker: Did the Government challenge the authority?
Mr. Wax: --object.
No, it did not.
The Government did not challenge the authority of the court to reopen the sentence.
We did object to the reduction of sentence.
It can be argued... we don't think that the defect is jurisdictional.
It can be argued that the district court shouldn't have resentenced him, because number one, he never took a direct appeal on the sentencing in absentia.
But then you can argue that you shouldn't hold the defendant to the obligation to take a direct appeal if he's not there.
On the other hand, you could argue that this isn't the kind of error that can be entertained on a 2255... there are lots of possible objections that you could make.
But the fact is that the judge did resentence him.
We didn't object to it.
And as we understood it, the court of appeals took that as a final judgment... as the sentence that triggered his appeal and his appeal of his--
Unknown Speaker: The second sentence.
Mr. Wax: --underlying claim, yeah.
Unknown Speaker: Took the second sentence.
Mr. Wax: Took the second sentence as the final--
Unknown Speaker: Who was the district judge in this case?
Mr. Wax: --sentence.
I don't... Judge King.
Unknown Speaker: Thank you.
Is it your... does the Government have a position as to whether or not an appeal could be dismissed if the appeal is from a 2255... an order pursuant to 2255 and the escape, or fugitivity was before the district court made that order--
Mr. Wax: Yeah.
Unknown Speaker: --i.e., suppose this were a 2255 proceeding?
Mr. Wax: I understand what you're saying.
If we were to consider this... and once again, we're not sure what it really is, what animal it is.
But if it was a 2255 in the sense... I think that we would take the position that yes... because this was treated as the sentence in this case, the final judgment--
Unknown Speaker: Suppose it were a 2255 proceeding.
You'd take the position that yes, it could be dismissed on the ground of fugitivity that occurred before the 2255 action was commenced in the district court?
Mr. Wax: --Okay, if you're asking what our position is about dismissal of appeals from collateral attack... that's what you're asking?
Unknown Speaker: Yes.
Mr. Wax: From collateral attacks... the Government's position would be... well, first of all, the question is whether the court of appeals has a rule in this case that we're willing to defend, of dismissal of appeals in these... in those situations.
And I think our position would be that if it's a true collateral attack, that the fugitivity and the failure to take an appeal should be treated as an ordinary default, procedural default, and that the procedural default rules should apply in those cases.
But once again, it's not really our choice to make these rules.
The question is, you know, what are the rules that the courts can make that are reasonable; that are within their supervisory powers?
I mean we're not standing here commending to the Court one particular rule, as opposed to another.
Because that's not the posture of this case.
The posture of this case is--
Unknown Speaker: Ms. Wax, if I could just throw this in... I probably shouldn't interrupt you... if you say normal, procedural default principles should be applied, this is a very unusual case.
Because he can make a pretty powerful showing of actual innocence.
Mr. Wax: --Your Honor, we disagree with that.
He can't make a showing of actual innocence.
Unknown Speaker: Oh, you don't agree the facts are the same as to his codefendant.
Mr. Wax: There is an enormous difference between actual innocence... the type that excuses procedural default... and falling short of proving something beyond a--
Unknown Speaker: The presumption of--
Mr. Wax: --reasonable doubt.
Unknown Speaker: --He's not entitled to a reapplication of the presumption of innocence when there's not proof beyond a reasonable doubt that he's guilty?
Mr. Wax: Well, we understand the actual innocence exception, you know, for collateral attack, to mean there has to be affirmative proof that you didn't do it.
And it has to be tied to a violation of a constitutional right.
That's the Government's position on the actual innocence exception.
Unknown Speaker: Could I ask this?
If this sport, as Justice O'Connor points out because of the long delay... would it have been proper for the Eleventh Circuit to have dismissed the appeal if, after he was found guilty, say they sent the case to a probation officer for a presentencing report, and set the sentencing date 6 weeks later, after which the normal appeal process had run; and if he had fled during that 6-week period and been recaptured before sentencing... on those facts, could they dismiss the appeal then?
Mr. Wax: Well, I think the court... a court could have a rule which would allow it to dismiss an appeal under those circumstances.
Unknown Speaker: Even though the flight had absolutely no impact on the appellate process, at all?
Mr. Wax: Yes.
Unknown Speaker: Or even the sentencing process?
Mr. Wax: Yes, the Government's position is that courts of appeals may proceed to make... using their supervisory authority, to make blanket, across-the-board-type rules which do not have to proceed case by case, and would encompass that type of--
Unknown Speaker: And what if, instead--
Mr. Wax: --situation--
Unknown Speaker: --of a flight during the 6-weeks period, he committed another offense?
Say he got drunk, or something like that, in violation of his probation.
Could they dismiss his appeal for that?
Mr. Wax: --Well, I mean that--
Unknown Speaker: And why not?
What's the difference between the two?
I understand flight during an appeal, or something that affects the proceedings.
But if you make a hypothesis that has no impact whatsoever on either the district court or the court of appeals proceeding, is there still justification for dismissing the appeal?
Mr. Wax: --If it is pursuant to a general rule that has a rational justification that is reasonable in terms of the problem it's designed to address.
There are three criteria for a--
Unknown Speaker: Don't we have a general rule--
Mr. Wax: --valid, supervisory--
Unknown Speaker: --that committing probation violations is bad, and we don't want that to happen, so we'll just use dismissal of appeals as a remedy for it.
That's certainly rational.
Mr. Wax: --Well, I think in terms of committing probation violations, there... you know, it would depend... and, you know, I'm not a master of probation violation law... but I think it would depend on whether... ah... you know, that exercise of supervisory authority conflicted with a rule of this Court, or a statute, or some body of law that this Court has developed to govern the particular area.
And if the--
Unknown Speaker: Well, I'm assuming it doesn't--
Mr. Wax: --answer was no--
Unknown Speaker: --just as this case it doesn't.
Mr. Wax: --Well, if the answer was no, then, then it would be permissible.
Unknown Speaker: So if... appeal dismissal--
Mr. Wax: But let me make a point about that--
Unknown Speaker: --is sort of an all-purpose weapon to deter improper conduct.
Mr. Wax: --Well, the answer is yes.
But let me make a point about that.
Any time this Court decides that it doesn't like the way the court of appeals are exercising their supervisory authority under Rule 47, it doesn't have to make a finding of unreasonableness, of conflict with a statute or a rule, or of a constitution before it can act to impose a uniform, national rule on the courts of appeals.
And the fact is, if the Court validates, or permits the Eleventh Circuit dismissal rule to stand, it's not really committing itself to any... to the next extension of that rule in the next case.
Unknown Speaker: Ms. Wax, certainly... I mean do I really have to buy into the... into the one if I buy into the other?
I mean isn't it a perfectly reasonable distinction between parole violations that fugitivity during the course of the trial, or before the appeal has been perfected demonstrates a... a contempt for the judicial process that's in front of the court?
And the court is not punishing evil-doing at large, but punishing evil-doing that has to do with this very proceeding before this very court system.
Mr. Wax: --Well, to the extent that dismissal--
Unknown Speaker: So it is tied into the particular case, isn't it?
Mr. Wax: --Well, no, it's tied into the sorts of interests that this Court has recognized as valid, that the courts can vindicate through supervisory rules with regard to... you know... fugitivity.
I mean... we... you can't dismiss for a parole violation... if you can't dismiss, it's because there's really no good reason... there's nothing that the court is accomplishing by doing that this Court is willing to accept.
Unknown Speaker: Well, if Justice--
Mr. Wax: But in fugitivity--
Unknown Speaker: --Stevens gives you a situation where nothing good is accomplished by... in a practical sense... by dismissing for the fugitivity, either.
Mr. Wax: --But that's--
Unknown Speaker: No time's been lost or anything else.
Mr. Wax: --But that's to assume that courts have to proceed case by case, that they have to look at the circumstances of each case.
But there's nothing that this Court has ever said about supervisory rules that would require a court to do that.
Unknown Speaker: Well, doesn't... Ms. Wax, doesn't there have to be some connection with the appellate process?
I mean take Justice Stevens' hypothesis a step further.
Supposing the guy creates trouble before he's tried in jail... he wants more food, and they won't give it to him, so he starts a riot.
Would that be a reason for... if he's ultimately convicted... for dismissing his appeal?
Mr. Wax: --Of course not.
It has to be... it has to have, as a general matter, some effect on the appellate process.
Unknown Speaker: Well--
Mr. Wax: It has to involve a flouting of the appellate process.
Unknown Speaker: --But what... what effect does the probation hypothesis given to you by Justice Stevens have on the appellate process?
Mr. Wax: Well, I mean I think the answer is it doesn't have a similar effect to fleeing the court.
And in that sense, it's possible that it wouldn't be a valid exercise of supervisory authority.
But my point is, that whether or not it were valid, and there were a good reason to dismiss because of this, you could have a blanket rule.
Unknown Speaker: So it's a rationality standard.
Mr. Wax: Yes.
Unknown Speaker: The rule the court of appeals adopts has to be rationally related to the integrity of the court process.
Is that what it is?
Mr. Wax: Right, to the--
Unknown Speaker: Or to the orderly functioning of the appellate court process?
Mr. Wax: --Right, to the orderly functioning of the court process.
Unknown Speaker: What would you do--
Mr. Wax: --this Court has put it--
Unknown Speaker: --if there was... there were a rule or a line of decisions which required dismissal of the appeal if there was an attempt, abortive attempt, to escape?
Mr. Wax: --Well, it depends on how much weight one puts on this Court's statement in its line of cases that flouting the authority of the court is an independent reason to dismiss.
I think prob... you know, one could argue that that wouldn't rise to the level of a sufficient flouting of the court's authority.
I think that... I think that you could make a distinction between that case and true fugitivity.
Because in true fugitivity, someone just removes themselves from the court's authority... succeeds in removing themselves, and thereby, in effect, displays their unwillingness to submit to the court's jurisdiction or control.
Unknown Speaker: Well, does the rule have to relate at all to flouting of the appellate court's authority?
It's the appellate court that's adopting the rule.
Or, do you take the position that the rule can encompass some flouting of the district court's authority... even though the district court didn't see fit to enforce any such discipline?
Mr. Wax: We do think that it can take into account possible... the possibility of prejudice both to the appellate court and the trial court.
Our submission is this:
Unknown Speaker: Must there be prejudice found?
Mr. Wax: --Not in every case, Your Honor.
We think that there--
Unknown Speaker: You think the rule can apply as a blanket rule in the absence of any prejudice in the particular case--
Mr. Wax: --Well, yes--
Unknown Speaker: --to the appellate process?
Mr. Wax: --we think that it's just a garden variety principle of rulemaking.
And this Court has said it, in cases like Weinberger v. Salfi, and Arizona v. Maricopa County, that it's not necessary to minutely examine the facts of each and every instance to which a rule applies to see whether it exemplifies the concerns that motivated the rule in order to have a valid rule.
Rules can be based upon generalizations... generalizations that certain actions on the part of individuals, actions which they can choose not to take, will tend to, in many cases, have certain adverse effects that the court is entitled protect against.
Unknown Speaker: Well, certainly the... certainly his taking off prevented the court of appeals from entertaining an appeal in a timely fashion.
And if appeal is now allowed, you're going to have two cases instead of one, maybe by different panels... things like that.
So in a normal course of events, the... the court probably would have heard his appeal along with his codefendant's.
Mr. Wax: --Correct, Your Honor.
And our position in this case is even if the Court decides that one has to proceed case by case with fugitive dismissal rules and there has to be a showing of prejudice, there was prejudice in this case.
And there was certainly enough to justify dismissal.
Petitioner was gone for 11 months.
And his appeal was delayed by more than that because there were posttrial motions.
He... in this case, there were codefendants with closely related claims.
And because of his fugitivity, the court had to take up the closely related claims of his codefendants separately, and at a different time... or would have had to... than his case.
And we think that that's enough dislocation and disruption of the appellate process to justify dismissal.
Especially considering what the Court has said in cases like Estelle v. Dorrough, where they've said that... for example... a State may adopt a fugitive dismissal rule just based on creating a deterrent to flight, number one; and number two, vindicating the orderly and dignified process of the appellate court.
Unknown Speaker: May I ask you another question?
What was the rule that the court of appeals applied here?
Do we know?
Mr. Wax: Well, it's hard to know because the court simply dismissed the appeal.
And so, you know, it's... it's difficult to say that they--
Unknown Speaker: Well, was there some prior case in which they articulated the reasons for dismissing in circumstances like this?
Mr. Wax: --Yes, there were two prior cases that were relied on by the Government here: United States v. Holmes, and United States v. London... two Eleventh--
Unknown Speaker: Well, what did the--
Mr. Wax: --Circuit cases.
Unknown Speaker: --Was this... from the same circuit, I take it?
Mr. Wax: Yes, Your Honor.
Unknown Speaker: And what did they say?
Mr. Wax: Well, ah--
Unknown Speaker: That in any case they're going to dismiss?
Mr. Wax: --Well, if you read those cases carefully, the Government thinks that, in effect, those cases look both ways.
On the one hand, there are statements in Holmes to the effect that because this individual fled, fled custody, we are going to dismiss the case... which have a categorical tone to them, and imply that this is a blanket rule.
Unknown Speaker: Now dismiss the case--
Mr. Wax: On the other hand--
Unknown Speaker: --dismiss the appeal that had already been filed?
Mr. Wax: --No, that was a case like this one in which the individual fled following conviction, returned to be sentenced, and then filed an appeal.
That was a preappeal flight case.
Um... so the court--
Unknown Speaker: So he did file a timely appeal?
Mr. Wax: --Yes... well, that's the whole point of these cases, as you pointed out earlier, Justice White.
Individuals can hang up these cases in the district court, just by choosing to flee prior to sentencing.
Not showing up at their sentencing, they can keep the case pending before the court of appeals, prevent it from going... before the district court, and prevent it from going before the court of appeals.
And essentially, what petitioner is saying is that these people should be treated differently from people who choose to come to their sentencing, thereby triggering the obligation to file a timely appeal which then either they will not timely file because they're fugitive, or will be dismissed under the pending fugitive dismissal rule this Court accepts.
Unknown Speaker: Ms. Wax, is it correct that in the cases where they have dismissed the... where there was a flight before sentencing, that the flight was long enough to delay the sentencing, ergo the appellate process as well?
None of these cases are like my hypothetical, in other words... they're a flight that didn't delay the sentencing hearing.
Mr. Wax: No, I... I don't recall exactly how the long the petitioner was gone in Holmes.
But it was a--
Unknown Speaker: 2 years, I think.
Mr. Wax: --fairly long period.
Yeah, it was years.
Unknown Speaker: But they don't have to be gone very long to hang up the appellate process.
Mr. Wax: Right--
Unknown Speaker: Could the appellate court prohibit any appeal from the sentencing?
Mr. Wax: --Well, I think the answer is: quite possibly.
The Fifth Circuit has recognized its authority to not allow an appeal... even from a sentencing... where someone is sentenced after they've returned.
In the case in which it recognized that, it refused to exercise that authority.
That was a case called United States v. DeValle.
Every other circuit that I know of has distinguished between events taking place before the person fled... that is, during trial... and what happens after they come back.
And they've just elected to extend the dismissal rule only to events preflight, as is their prerogative.
That's just a choice that the courts of appeals have made in fashioning a fugitive dismissal rule.
Could they take it one step further?
I think that unless it violates a rule or the Constitution, and they think that there are good reasons to do that, probably it would be permissible... that a person forfeits not just their right to take an appeal as to prior events, but their right to take an appeal as to a sentence.
But it just hasn't been applied that way.
Unknown Speaker: Ms. Wax, you were frightening me a moment ago when you seemed to be on route to saying that we really don't know in this case whether they were applying a rule or indeed were engaging in case-by-case determination.
I mean did we take this case just to decide whether their case-by-case determination was correct?
I thought at least there was agreement here that a rule was being applied.
But you say maybe not.
This is an overwhelmingly insignificant case, if that's so.
Mr. Wax: Well--
Unknown Speaker: Moreso than I had thought.
Mr. Wax: --Well, it's not insignifi... well, let me answer your question first.
It's not insignificant, Your Honor, in the following sense: the First Circuit has ruled that they are absolutely... they have no authority to dismiss where the flight is preappeal... the person flees and comes back before they're sentenced.
So you at least took this case to dispel the... in our opinion... erroneous view that no court of appeals has the authority--
Unknown Speaker: Oh, okay.
Mr. Wax: --to dismiss a case under those circumstances--
Unknown Speaker: Although you may have to do it--
Mr. Wax: --whether they go case by case--
Unknown Speaker: --I see, okay.
Mr. Wax: --or as a mandatory rule.
Unknown Speaker: Well, that's... that's comforting.
Mr. Wax: We can at least accomplish that much, Justice Scalia.
Now, as I stated, a supervisory... a rule formulated by a court of appeals in its supervisory capacity is valid, as long as that rule does not conflict with the Constitution, a statute, or rules of procedure, is one that can properly be established through adjudication, and is reasonable in light of the concerns it is designed to address.
And I would just... as a respect to the authority to establish these rules through adjudication, I would just like to point out that that authority is expressly conferred by the Federal Rule of Appellate Procedure 47, which says that in all cases not provided for by formal rules promulgated by a vote of the circuit justices, the court of appeals may regulate their practice in any manner not inconsistent with the Federal Rules of Procedure.
And this brings up another point that petitioner made in his argument, which I would like to deal with.
He makes the argument that if a rule is mandatory... if a rule adopted by the court of appeals in the exercise of its supervisory power is a general rule, a blanket rule to which it decides to make no exceptions, that means that the court is somehow abridging its jurisdiction.
And we would submit that that is absolute nonsense.
Because the consequence of that argument would be that every time a court... through formulating local rules, or this Court through formulating Rules of Appellate Procedure... makes a general rule, it's somehow amending Section 1291, which is clearly untrue.
A court may choose to exercise its dismissal authority in every case.
But in a further case, it could always change its mind because it still retains jurisdiction over those particular types of cases.
And, of course, in Molinaro v. New Jersey, this Court recognized that for fugitive dismissal rules, the fact that an individual is fugitive, does not strip the case of its character as an adjudicable case or controversy.
So the issue of lacking jurisdiction is just... it's a straw man in this case.
Unknown Speaker: Ms. Wax, just out of curiosity, how bit a problem is it?
How often do these dismissals occur?
Do you know?
Do you have any idea, statistically... you know, once every year or 2, or--
Mr. Wax: Well, they've occurred in every circuit.
Unknown Speaker: --At least once.
Mr. Wax: I can tell you... at least 12 times, Your Honor.
Unknown Speaker: And there was one in the First Circuit that we're curren--
Mr. Wax: Twice, in some.
Unknown Speaker: --I guess.
Mr. Wax: Right.
Yes, and they have occurred... there have been four or five cases in this Court... or more... involving this problem.
Now finally, the most important point in this case is that the rule applied in this case... the rule of preappeal fugitive dismissal... is reasonable in light of the concerns that the court sought to address.
There have been a number of justifications offered for the dismissal of fugitive appeals, and in the cases in which the courts have dismissed pending appeals.
And this Court, itself, has validated that rule of the dismissal of pending appeals.
And most of the justifications offered in those cases apply with equal force to cases in which the individual flees and returns prior to sentencing and filing his appeal.
Unknown Speaker: Do you know whether the United States Attorney appeared personally to oppose, or filed a piece of paper, himself, opposing the motion to resentence?
Mr. Wax: He was there, Your Honor.
He was at the resentencing.
And he opposed it.
Unknown Speaker: Well, at the resentencing, but was he at the... when the motion was granted?
Mr. Wax: Yeah, he was there.
Unknown Speaker: --I see the last paragraph of the Public Defender's statement says I am... the United States Attorney opposes this motion.
Mr. Wax: Right, he opposed it.
But it's our... he opposed the reduction of sentence, Your Honor... the reduction--
Unknown Speaker: Well, all right--
Mr. Wax: --from 235 months--
Unknown Speaker: --but was he--
Mr. Wax: --to 188--
Unknown Speaker: --there to--
Mr. Wax: --months.
Unknown Speaker: --Was he there to oppose the granting of the motion to--
Mr. Wax: He was there.
There is a transcript.
I believe it's in the joint appendix, yes.
The reasons that the Court... this Court and other courts have given, as I said, apply with equal force to preappeal and postappeal flight.
And briefly, those reasons are: number one, the flouting, the defiance, and the contempt for the court that's shown by someone who absconds.
And, of course, that's equally grave, whether the person goes during the pendency of the appeal or before he's sentenced and fails to show up at sentencing.
The second reason is to deter flight... to provide a disincentive for flight.
And once again, if we have a rule that during a pending appeal if someone flees his case is dismissed, but if someone flees before his appeal is filed it won't be dismissed, that will simply offer an incentive to people... for people to flee sooner, rather than later.
Unknown Speaker: --May I go back to your flouting authority rationale?
Supposing the defendant went on the air and called all the judges that are going to sit on the appeal dishonest, and crooked, and so forth... and really flouted the authority.
Could you dismiss the appeal for that reason?
And if not, why isn't the flight just a form of symbolic speech?
Mr. Wax: Well, I... I think the point, Your Honor, is is that if someone removes himself from the reach of the court, it's not just a matter of, you know, thumbing your nose--
Unknown Speaker: Well, I'm just confining--
Mr. Wax: --at the court.
Unknown Speaker: --it to that one rationale.
Mr. Wax: I don't think that's what's meant by--
Unknown Speaker: Your flouting the--
Mr. Wax: --flouting.
Unknown Speaker: --Your flouting the authority rationale, seems to me strictly a First Amendment problem.
Mr. Wax: Well, I think--
Unknown Speaker: We understand the rest of the reason, if you delay, and all that.
Mr. Wax: --I think this would come under a speech act, rather than speech, Your Honor.
Unknown Speaker: Well, but the--
Mr. Wax: --This would be O'Brien.
The O'Brien test would definitely apply here.
Unknown Speaker: --What if he burned the flag.
Could you dismiss his appeal for that reason?
Mr. Wax: I don't... Your Honor, I would say no, because I think what we mean by flouting and contempt for the court is to remove yourself from the court's process... not just thumbing your nose--
Unknown Speaker: Not burning pictures of--
Mr. Wax: --showing your contempt--
Unknown Speaker: --judges or anything like that?
Mr. Wax: --for the judges and that sort of thing.
Unknown Speaker: If he burned the flag in the courtroom you could penalize him, couldn't you?
Mr. Wax: You might be able to do that... well, I'm not sure--
Unknown Speaker: Burn the--
Mr. Wax: --after this Court's--
Unknown Speaker: --courtroom, right?
Mr. Wax: --cases.
Unknown Speaker: I mean--
Mr. Wax: I think under this Court's most recent flag-burning cases, probably not.
As I said, the second reason is to deter flight.
And the deterrent operates equally in both the situations.
And finally, dismissal promotes the orderly and efficient operation of the courts and protects against adverse effects on the prosecutor and on the court.
And those adverse affects can be felt... not necessarily in every case, but potentially in as many cases, and as severely... whether flight is preappeal or during the pendency of the appeal.
If the Court has no further questions.
Unknown Speaker: --Thank you, Ms. Wax.
The case is submitted.
The honorable court is now adjourned until tomorrow at ten o'clock.