Cases by Issue - Fugitive from Justice

Degen v. United States - Oral Argument

Fri, 09 Jan 2009 14:49:48 +0000

Case:

Degen v. United States

Media File:

95-173_19960422-argument.mp3

Related Transcript:

1995_95_173_argument.xml

Transcript:

Argument of Lawrence S. Robbins

Chief Justice Rehnquist: We'll hear argument now in Number v. United States.

Is that the correct pronunciation of your client's name, Mr. Robbins?

Mr. Robbins: Mr. Chief Justice, it's actually Mr. Degen.

Chief Justice Rehnquist: Degen.

Very well.

Proceed.

Mr. Robbins: Thank you, Mr. Chief Justice, and may it please the Court:

On October 24, 1989, Federal prosecutors in Reno, Nevada commenced a civil forfeiture action against some five and a half million dollars in real and personal property owned by petitioner Brian Degen and his wife, Karen.

As the forfeiture statutes permit, Mr. Degen filed a claim for the property.

In it, he denied that the property was either the proceeds or instrumentalities of narcotics violations.

He also asserted a range of legal defenses, including that the forfeiture action was time-barred and that it rested on an ex post facto application of the forfeiture laws.

On the Government's motion, however, the district court struck Mr. Degen's claim for the property.

The court ruled that because Mr. Degen, a dual Swiss and American citizen, had not traveled to the United States to stand trial in a criminal case that had been brought against him, he was a fugitive, and as a fugitive from the criminal case, he was therefore disentitled, in the vernacular, from contesting the civil forfeiture of his property.

The district court therefore entered a judgment against Mr. Degen for the full amount of the Government's claim, some five and a half million dollars of property, and the Court of Appeals for the Ninth Circuit affirmed.

Our central submission this morning is that Federal courts and Federal judges do not have the authority to do this.

To the contrary, this extraordinary application of the fugitive disentitlement doctrine cannot be squared with this Court's disentitlement cases, it cannot be squared with due process, and it cannot be squared, most importantly, with the limitations that this Court has always recognized on the scope of the inherent powers of the Federal courts.

Unknown Speaker: When you say it cannot be squared with due process, Mr. Robbins, do you mean that if Congress had enacted such a provision it would be unconstitutional?

Mr. Robbins: I believe it would.

I believe that Congress would not have authority to pass a statute that has done what the Federal courts in this case have done, although, Justice Scalia, if I might add, it is all the more unlawful when done by Federal courts.

Unknown Speaker: What leads you to think that Congress wouldn't have that authority?

Mr. Robbins: Well, I think the reason is that--

Unknown Speaker: I mean, are you talking about a case?

Mr. Robbins: --I'm sorry, Your--

Unknown Speaker: Are you talking about a decision of this Court that supports that proposition?

Mr. Robbins: --Well, I... it's... I think that the line of authority that supports the proposition is embodied, for example, in McVeigh and in Hovey v. Elliott, where the Court, in deciding that a Court lacked the power, said that not even a legislature could pass such a statute, and therefore it's all the more unconstitutional for Federal courts, or in those cases State courts, to exercise that kind of authority.

Unknown Speaker: Where did your client reside before he went to Switzerland?

Mr. Robbins: He lived in the United States.

Unknown Speaker: And when did he go to Switzerland?

Mr. Robbins: The record suggests, Mr. Chief Justice, that he went to Switzerland sometime in early 1988.

Unknown Speaker: And when was the indictment handed down?

Mr. Robbins: It was unsealed in October 1989.

Unknown Speaker: If... supposing the district judge in this case had made a finding that he left the United States in order to avoid pleading to the indictment, would that make the outcome any different, in your view?

Mr. Robbins: It would not.

Our position would be that even if he were a fugitive in that sense, which he's not, but even had he been, our position would be exactly the same.

That is to say that a Federal court in the civil forfeiture case would not have the authority to exercise the dispositive sanction of dismissal.

Unknown Speaker: And that Congress wouldn't?

Mr. Robbins: I think it would be... I think it would be very difficult to say that Congress could pass a statute that says that the... that you have no right to defend the forfeiture of property if you have become a fugitive in a criminal case.

But again--

Unknown Speaker: And that's so even if you make a general appearance in the action?

Mr. Robbins: --A general appearance in the forfeiture action?

Unknown Speaker: Yes.

Mr. Robbins: And the question would again be the power of Congress--

Unknown Speaker: Again, the powers of Congress under the Due Process Clause.

Assume that there's a general appearance in the action but a refusal to make discovery or a refusal to appear because you're a fugitive from justice.

Couldn't the Congress of the United States say, in that case we can take judgment against you?

Mr. Robbins: --Well, again... my general answer is that when Congress does something, obviously they are not constrained by the limitations on inherent powers.

The question that would be presented, Justice Kennedy, in that situation is whether the application of that sanction through the legislative process satisfies the conditions articulated in Hammond Packing on whether there's a sufficient nexus between the violation and the sanction that's been imposed, and it might be--

Unknown Speaker: Mr. Robbins, I thought you were not contesting that as far as the forfeiture is concerned Mr. Degen would have to be treated like any other litigant, so if he didn't show up, say, for a deposition, didn't comply with all the discovery requirements, out he goes.

I thought that you were saying as far as the forfeiture proceeding is concerned, he can't have any advantage because of his fugitive status, and if I'm wrong in that, please tell me.

Mr. Robbins: --Well, we are certainly not suggesting, Justice Ginsburg, that he has some special advantage by being... by virtue of his nonappearance, and so, for example, if there were an appropriate sanction for nonappearance in the forfeiture action, I suppose that if that sanction otherwise comported with the two standards that this Court articulated in Insurance Corporation of Ireland, I suppose he could be appropriately sanctioned, and--

Unknown Speaker: I thought your case was, he has a right, the right that any litigant would have, to defend the forfeiture proceeding.

Mr. Robbins: --Exactly.

Unknown Speaker: He's not stripped of that right because there's a criminal prosecution against him.

Mr. Robbins: Exactly.

Unknown Speaker: But as to the forfeiture proceeding, he would have to comply with all the requirements the court would impose on anyone who's contesting a forfeiture.

Mr. Robbins: That's absolutely correct, and the only point of departure that I thought I tried to suggest to Your Honor's question is... insofar as the predicate is that if he didn't show up for a deposition he would be automatically subject to have his claim dismissed, I'm not altogether sure that courts can dismiss claims whenever there's any particular violation of a discovery order.

The question--

Unknown Speaker: It's a civil matter, though.

You wouldn't argue--

Mr. Robbins: --Exactly.

You know, the question would be, you know, whether this comports with the due process restrictions on Rule 37 as this Court has articulated them in--

Unknown Speaker: --What... assuming, even apart from any rule, that the failure to show up made it impossible for the Government to perfect its forfeiture case, perhaps because the material forfeited was in the possession of the defendant, in a case like that, rule or no rule, I take it you would agree that there would be no due process violation in disentitling the person to defend any further.

Mr. Robbins: --I think... I think that's correct, if I understand the question.

If, for example, his nonappearance rendered it impossible for the district court in the forfeiture action to proceed, for example by rendering it impossible to have... you know, to enforce the judgment, or to take control of the race, if you will, then, you know, there's nothing that should separate Mr. Degen from any other litigant.

That--

Unknown Speaker: If the district court were to order him to appear in Nevada for a deposition, could he then be served with criminal process in the criminal case?

Mr. Robbins: --Oh, I think if he were to appear in response to such an order, I have no doubt that he would be immediately served with process in the criminal case.

Unknown Speaker: And would that be constitutionally objectionable, in your view?

Mr. Robbins: Well, the... it would raise a question in my mind, Mr. Chief Justice, if it was done for the purpose of securing his appearance, as a way of sort of going around the extradition case.

Unknown Speaker: Well, suppose it wasn't.

Suppose the district judge says, we do have these foreign claimants, and I always require them to come to Reno, or Las Vegas, and give their depositions.

Mr. Robbins: Well, Your Honor, that... I think the answer is this.

If we were faced with that case, which, of course, we're not... he was not sanctioned for that reason.

He was sanctioned for the quite different reason that he didn't come and make an appearance in his criminal case.

But had he been sanctioned for that, Mr. Chief Justice, I think it would raise two questions, one about the formulation of the rule, and one about the formulation of the sanction.

The formulation of the rule would be, can a district judge say that in all civil forfeiture actions every claimant must show up in person?

I think that would raise a question, which I'm not prepared to sort of give a complete answer to, but I think it would raise a question as to whether a district court would be in effect announcing that the rules provided by Congress, including for foreign depositions and telephonic depositions, shall be just set aside, and that no discretion shall be exercised.

Unknown Speaker: We've said that that's okay in civil matters, where the reason the person doesn't want to appear generally is that he will be served in other civil cases.

We've said it's perfectly okay for a State to say, you make a general appearance or you do not appear at all.

Mr. Robbins: I think that that--

Unknown Speaker: I would think that it's a lot easier to say it for the criminal case.

The interest of the State is much greater.

Mr. Robbins: --I... well, again, I think the interest of the State is greater, but the question that I was intending to answer is whether a court could say that notwithstanding Rules 28(b) on foreign depositions and Rule 30(b)(7) on telephonic depositions, I'm just not... the judge would be saying in all civil forfeiture actions I'm not going to consider those--

Unknown Speaker: Well, supposing the district court said, I don't require all civil forfeiture defendants to come to Las Vegas, but I'm going to require you to come to Las Vegas, because I'm exercising my discretion and that's the way I choose to exercise it.

Mr. Robbins: --I think it is possible that if circumstances warranted that and the judge, you know, gave reasons that satisfy a reviewing court that this was an appropriate exercise of discretion that might be done, but then the further question, if I might, as to whether the violation of that order gives... justifies the sanction, the dispositive sanction of dismissal--

Unknown Speaker: You sound as though your client might be planning to violate such an order.

Mr. Robbins: --No.

[Laughter]

And the question, of course, has not been presented, since he's obeyed every order in the civil case that's been pressed on him, and this district judge, unlike the hypothetical district judge that the question presupposes, has ordered foreign depositions in the case of Karen Degen, my client's wife.

Unknown Speaker: In your... I take it for pure purposes we could consider this as a case in which the defendant is happy to send his lawyers, he's happy to comply with every order.

What he'd like to do is send in one piece of paper, which piece of paper would be absolutely conclusive in his favor, and the judge says, I'm sorry, I won't look at the paper.

Since you're not here, you lose, period.

Mr. Robbins: Since--

Unknown Speaker: Is that right?

Mr. Robbins: --Since you're... and actually, it's more than that, Justice Breyer.

Since you're not here in this other case--

Unknown Speaker: Yes.

Since you're not here in the other case, you lose.

Now, we're used to doing that in an appeal where, after sentencing, for example, the defendant runs away, and you concede we can do that there.

Mr. Robbins: --No question.

Unknown Speaker: You can say, we won't look at your paper, we won't look at the brief, you lose.

Mr. Robbins: Yes, but that--

Unknown Speaker: All right.

Now, what line do you draw?

Mr. Robbins: --Well, I draw exactly the line that this Court has drawn in that exact... in those very cases.

The line... and it cuts across several factors that distinguish the facts of this case from that line of cases.

In the first place, Justice Breyer, those are cases in which there is no underlying constitutional right that's been abrogated.

There's no--

Unknown Speaker: When I say, what line are you drawing, after all, there are a lot of intermediate cases.

He runs away before sentencing.

Can the judge then sentence him?

Mr. Robbins: --I believe that the answer to that is yes.

That's exactly what--

Unknown Speaker: If, in fact, the judge wants to levy a fine, and he wants to produce one piece of paper which will show he has no money, does the judge have to look at that piece of paper?

Mr. Robbins: --Well, again, these are cases in which the sanction is being imposed in the very proceeding in which the--

Unknown Speaker: No, I'm asking you for your... I mean, you're absolutely right that's where I'm driving.

What I want to see is what's your line.

You agree, I take it, the judge doesn't have to look at the piece of paper when he ran away before appeal.

The judge doesn't have to look at the piece of paper when he runs away before he's being fined at sentencing.

But you're saying the judge does have to look at the piece of paper when it's a forfeiture of property, and what's the distinction?

Mr. Robbins: --Well, one distinction is that it doesn't turn so much on the forfeiture of property as it does on the fact that there are two different proceedings, and in the forfeiture proceeding there is no showing that the fugitivity has any impact, has had any impact on the process of the forfeiture court, which is, of course, exactly the distinction that persuaded this court in Ortega-Rodriguez to draw the line where it did.

We're insisting on exactly the same line and, indeed, the use of the disentitlement doctrine in this setting in my view is vastly more dramatic.

Unknown Speaker: Mr. Robbins, may I ask you a question?

You may recall that there are some lawyers who argue that the Double Jeopardy Clause require the two proceedings to be brought as one.

Mr. Robbins: I've heard such an argument may be made.

Unknown Speaker: You've heard such an argument.

[Laughter]

Well, if the Constitution commands these proceedings be treated as one, how can you consistently argue in this case that we must treat them as totally separate--

Mr. Robbins: Well--

Unknown Speaker: --which is the heart of your argument, that we should ignore the criminal case and just look at what can be done in the civil case?

Mr. Robbins: --Well, I contend that they are separate proceedings, of course.

Unknown Speaker: And it's constitutionally permissible for us to treat them as separate proceedings.

Mr. Robbins: Well, I think it is constitutionally permissible to treat them as separate proceedings and, indeed, they are separate proceedings, but even--

Unknown Speaker: Even if not, you would say that if they are brought as separate proceedings they have to be treated as separate proceedings.

Mr. Robbins: --Exactly, and the--

Unknown Speaker: That's not a very irrational position, is it?

Mr. Robbins: --And the inquiry would... and the inquiry would still be, has the fugitivity in case one affected the proceedings in case two, and my general answer is that if the answer is no, it doesn't meet Ortega-Rodriguez, it is nothing like any disentitlement case this Court has ever approved, it serves none of the purposes... none of the purposes... that this Court identified in Ortega-Rodriguez.

What the Government wants in order to sustain this forfeiture is for the Court to completely reformulate the doctrine of fugitive disentitlement so that it no longer matters whether the claimant has a dispositive motion that doesn't even require his presence, or even his testimony, so that it doesn't even matter if the Government has probable cause, so that it doesn't even matter whether there's venue in this court, so that the only thing that matters is that he hasn't shown up to face parallel criminal charges.

Unknown Speaker: Mr. Robbins, in answer to Justice Scalia's question about the special or general appearance, you indicated that that was right that a State could say, either you stay out and forfeit whatever we have, or you come in for all purposes, but my understanding is that on the Federal side if the property is in the custody of the court, you could make a limited appearance and say, I'm coming in for purposes of defending my property, but nothing else that I own is going to be subject to the court's authority.

I thought that's... on the Federal side, that has been the Federal practice, whatever the Texas rule may be.

Mr. Robbins: Well, I'm actually not certain whether Mr. Degen could have entered a limited appearance.

In this particular case, he hired a lawyer to contest the forfeiture--

Unknown Speaker: Well, that's what a limited appearance is.

I'm there, I'm fighting out the case, but the only thing that's going to be subject to the judgment is the property.

Mr. Robbins: --Correct, which is, of course, the only thing that can be subject to the forfeiture judgment.

The forfeiture court has not seized jurisdiction over Mr. Degen for purposes of imposing, you know, a dispositive sanction on him other than in the course of the litigation were he to violate a court order.

Unknown Speaker: And I guess the actual parallel in the State civil case anyway would not be whether you subject yourself to general counterclaims or whatnot that are relevant to that suit, but rather, I guess the parallel would be a State that says if you make even a special appearance in one case you are liable to being sued in separate cases.

I don't know any state that does that.

Mr. Robbins: Well, exactly, and actually this is actually to me a more dramatic example of that for the following reason.

Mr. Degen has been sanctioned, indeed dispositively sanctioned, not because of something he did in the criminal case, but for his failure to come to the United States, an act over which the court in the criminal case lacks jurisdiction.

In a sense, this is the use of an inherent power to sanction someone in case one because of something that he failed to do outside the courtroom in case two, and I'd like to suggest, with all due respect, that there is no authority certainly in any of this Court's cases for this kind of a use of an inherent power of a court.

Unknown Speaker: Could the judge decline to give the usual weight and credit to the sworn affidavit because of the defendant's absence?

He'd say, I have this paper in front of me, but number 1, this man's a fugitive.

I'm going to discount this.

Mr. Robbins: I think the answer, Justice Kennedy, is that there... is that it's possible the court could do that, saying, look, I didn't get to test his demeanor--

Unknown Speaker: It's not only possible, is it permissible?

Mr. Robbins: --I think it is permissible, and after all, it's important to bear in mind Mr. Degen bears the burden of proof.

His not showing up has consequences for him, too.

Just as this Court pointed out in Societe Internationale, there are consequences for the litigant that doesn't appear, but one of them is not that you dispositively sanction him, take his property, give him no day in court, for the reason that in a separate case over which the judge has no jurisdiction in the first place, he hasn't shown up.

Unknown Speaker: Maybe it isn't that separate a case.

I mean, certainly that's what the Government is going to argue in these cases.

It would be quite different if it were a totally unrelated piece of civil litigation that you're talking about, but this is, in fact, simply a piece of civil litigation that has a lot to do with the criminal case.

Why can't we consider them effectively joined?

Mr. Robbins: I don't think so, any more than the court was inclined to consider the two stages of Ortega-Rodriguez the same case.

There, after all, you had a prosecution followed by an appeal, and yet the Court concluded that because there was no impact on the appellate proceedings of the same exact case, you couldn't apply the disentitlement doctrine in that way.

Unknown Speaker: Well, but that had to do with the fact that the appellate proceedings did not relate to the same court, that they didn't have to do with an offense to the dignity of the same court, and therefore couldn't be within the inherent powers of that court.

Mr. Robbins: Well--

Unknown Speaker: But here it is the same court.

Mr. Robbins: --Well, it is the same court, but it's the same court with respect to a different case, and the inquiry, I thought, in Ortega-Rodriguez is whether the appellate process... that was certainly one of the factors.

Has the appellate process been disturbed, or... and--

Unknown Speaker: Because it was only the appellate process that was the business of that court.

Mr. Robbins: --I understand, but I think--

Unknown Speaker: It had to do with the identity of courts rather than the absolute identity of lawsuits.

Mr. Robbins: --I understand, but I think it remains the case that Federal courts... even if it happens to be the same judge, I do not understand any of this Court's cases to permit the sanctioning of a litigant who happens to be before the same judge in another case, even if it's related cases.

They have some facts in common.

Nevertheless, I understand no authority, and I'm aware of no authority, the Government cites no authority for the proposition that the judge, no matter how similar the underlying cause of action may be, that a sanction can be imposed in case one because of case two, particularly, let me add, for conduct that is not unlawful in any way.

It bears mention that although Mr. Degen's failure to come to the United States is doubtless frustrating to the United States Attorney in Reno, Nevada, to the Department of Justice, and to Judge Reed sitting in Reno, Nevada, neither of the political branches, neither Congress nor the executive branch, have chosen to proscribe it in any way.

It doesn't... it isn't extraditable.

It isn't punishable.

It's not against the law.

It violates no positive law, and yet there is a district judge in Reno, Nevada who, following circuit court precedent, and I must say, precedent in various other circuits as well, has dispositively sanctioned someone, taken all his property without giving him his day in court.

Unknown Speaker: Well, could--

Mr. Robbins: That strikes me as quite extraordinary.

Unknown Speaker: --Do those who are assisting him in remaining abroad, couldn't they be liable for harboring a fugitive?

Mr. Robbins: I... oh, I--

Unknown Speaker: Forget the extraterritoriality aspect of it so far as the forum.

Suppose he was in New York State, and he was being hidden out--

Mr. Robbins: --Well, I think if there were questions of concealment and harboring, if that were true, there might be criminal sanctions attached to the persons doing it, but Justice Kennedy, it must be said Mr. Degen is so far from being harbored that it was not difficult for the United States Government to prevail upon the Swiss to arrest him and toss him in jail, where he lingered for nearly 2 years.

Unknown Speaker: --But is that the case now?

What is the status?

Mr. Robbins: He is on--

Unknown Speaker: That is, on that part of it, is it... is there a dispute with the Government over what happened?

Is it the case that he could not come to this proceeding because, at the request of the United States, the Swiss had arrested him, tried him, and put him in prison?

Mr. Robbins: --I am--

Unknown Speaker: Are we dealing with the case of a person who could not show up because he was in prison because the Swiss authorities acted on American request, or not, or what is the status of that?

Mr. Robbins: --The status is that he is out on bail.

I have no reason to challenge the proposition that he could come here without penalty from the Swiss, but I don't know that to be the case, but I'm not asserting the opposite, either, and my argument wouldn't--

Unknown Speaker: He hasn't been tried yet in Switzerland?

Mr. Robbins: --No, he's not.

He's still awaiting trial on charges that, on their face, embody the allegations of the American indictment as well.

Unknown Speaker: Mr. Robbins, did the petitioner raise in district court the claim that the Swiss arrest ended his fugitive status?

Mr. Robbins: Well, the Swiss arrest came in, I believe, November of 1992.

He had already been disentitled at that point.

Unknown Speaker: So it was not raised in the district court because it hadn't occurred.

Mr. Robbins: That's correct.

It had not yet occurred.

With the Court's permission, if there are no questions I'd like to reserve the balance of my time for rebuttal.

Unknown Speaker: Very well, Mr. Robbins.

Mr. Estrada, we'll hear from you.

Argument of Miguel A. Estrada

Mr. Estrada: Thank you, Mr. Chief Justice, and may it please the Court:

It is undisputed that this civil forfeiture action is directly related to a criminal case that is pending in the same district courthouse against Degen, and that Degen refused to appear to stand trial on the criminal charges.

For two reasons, the court of appeals correctly held that a claimant in Degen's situation may be disentitled from contesting the civil forfeiture action.

First and foremost a civil claimant's participation in the civil forfeiture action fundamentally threatens the integrity of the criminal case.

Second, the claimant's--

Unknown Speaker: You say the defendant's participation in the civil forfeiture threatens the criminal case?

Mr. Estrada: --Yes, Mr. Chief Justice, and that is, in fact, our principal argument here.

Our argument starts from the premise that courts always have had the inherent authority to protect against the abuse of their processes by a litigant, and that is precisely what the rule at issue here does.

If a civil claimant is allowed to participate in a civil forfeiture action while at the same time he refuses to stand trial on a criminal case that is based on the identical event, he may then use the very broad civil discovery rules that... to circumvent the very well settled and strict restrictions on criminal discovery.

Unknown Speaker: But couldn't that be dealt with by a judge administering the civil discovery rules?

Mr. Estrada: That is not true, Mr. Chief Justice, with respect, and in order to understand why, it is useful to note why it is that we have limited criminal discovery in our society.

Those rules limiting strictly criminal discovery exist because long experience has taught Congress and the courts that early disclosure of the Government's case in a criminal prosecution often leads to contrived defense testimony--

Unknown Speaker: But Mr. Estrada, wouldn't that be possible even if he appeared in the criminal case, that he could use civil discovery in the forfeiture case to find out the same information?

Mr. Estrada: --That is not so, Mr. Justice Stevens, for the following reason.

Congress has recognized precisely the danger that we're pointing to in this case, and in section 20... and section 881(i) of title 21 has given the Government the right to go to the district court and get a stay of the civil forfeiture action pending the conclusion of the criminal case.

Unknown Speaker: Well, why couldn't they have done that in this case?

Mr. Estrada: Well, I take it that if we had done that in this case, Mr. Justice Stevens, the net... the result would have been that we couldn't get any judgment in the civil forfeiture action because the criminal case can't start while Mr. Degen is in Switzerland.

Unknown Speaker: So it boils down to a question of money.

It's not the dignity of the court, you want the money.

Mr. Estrada: Well, no.

We want our statutory rights under the forfeiture statute--

Unknown Speaker: Which is to get the money.

Mr. Estrada: --Which is to get the money without having to compromise the integrity of the criminal process, and since we are not at fault for the fact that he's in Switzerland, we think that it is a reasonable exercise of the court's authority to have a very simple procedural rule in the civil case that says that if you want to file a claim in the civil case you should come and face the related criminal charges.

Unknown Speaker: That's--

--But how long can a... how long can the criminal indictment stand without dismissal if he fails to appear in response?

Mr. Estrada: For as long as he lives, Mr.... Justice O'Connor.

Unknown Speaker: All right, and presumably the Government could stay the civil forfeiture and put a hold, in effect, on any transfer of title the property.

The property will be secure.

So what has the Government lost?

Mr. Estrada: Well, the Government has lost its right to the property.

Under the forfeiture laws we have made a prima facie showing which on its face entitles us to the property outright.

Unknown Speaker: Well, it seems to me that the... it isn't as though the Congress hasn't addressed this problem.

It has, and it has given you a remedy.

The remedy is to stay the civil action until the criminal action is completed, and you say that remedy is inadequate.

Well, maybe go back to Congress and get an additional remedy for this kind of a case.

Mr. Estrada: There are two points in answer to that question, Justice Scalia.

Congress has not addressed the problem that we are faced with here.

It has not dealt with how to deal with someone who is a fugitive in a foreign country, so that there's no negative implication that that is an exclusive remedy.

The second point, which I think is more important, is that the fact that Congress has dealt with an aspect of the issues that come up with cases when cases are related does not mean that the court ceases to have a very strong interest in keeping parties from abusing its processes, and that's what is at issue here.

Unknown Speaker: Well, there's no finding here, Mr. Estrada, that the petitioner is a fugitive.

Mr. Estrada: Well, yes, there is, Mr. Chief Justice.

We have... at page 18a of the petitioner's appendix there is a finding by the district judge that he is a fugitive, and at page 5a--

Unknown Speaker: Whereabouts on page... you're talking about the white--

Mr. Estrada: --Yes.

It's page 18a, and it is the last full paragraph.

It says, the Ninth Circuit has given us the following definition of who is a fugitive, and the court goes on to say, in this case Brian knows he is wanted by the police but refuses to submit to arrest, even though he professes his innocence.

Thus, we conclude that Brian Degen is a fugitive.

Unknown Speaker: --In that sense of the word, I take it.

Mr. Estrada: Right, in that sense of the word, and that is the sense of the word that is relevant to the application of the sanction at issue here.

I think it bears emphasis from our point of view that we are not here supporting the notion that the sanction being imposed is an exercise of the power of the court in the criminal case.

We are not saying, for example, that he has a legal duty that is enforceable in the criminal case if the case were standing alone.

What we are saying is that it is a proper use of the court's authority to manage the civil case to guard against the possibility that he will use the processes in the civil case to undermine public policies that have been reflected--

Unknown Speaker: If he does--

Mr. Estrada: --in the discovery rule.

Unknown Speaker: --If he does, why not handle it at that stage instead of saying you... you're at total default.

We are predicting what's going to happen if we were to allow you to come in and defend, and Mr. Estrada, one striking difference between this and Molinaro, where the fugitive entitlement doctrine started, there the defendant is away and he says, aha, if I'm vindicated on appeal, I'll come home, but if they're going to affirm my conviction... so there was no way to enforce the court's judgment.

Here, all the property is arrested.

It's in the court's control, so he can't get his hands on any of that property.

Mr. Estrada: Well, there are two different points being raised by your question, as I understand it, Justice Ginsburg.

One is why can't we wait, and the other one is, we have control over the property, so there is no question as to the enforceability of the judgment.

Let me take the first one first, which is that... and in answering that one, it is important to recognizes that we are claiming two distinct interests in the civil forfeiture action for supporting this rule.

One, of course, is the fact that he has shown to the court that he intends to play games with the court and maybe their answer is let's wait and see if he does it some more, but even... even accepting that that would be an acceptable answer, it is not an acceptable answer to the more fundamental problem that we are identifying, which is that by getting discovery and allowing... and being allowed to litigate the civil forfeiture action, he is circumventing the criminal discovery rules.

Those rules reflect a very strong public policy that cannot be dealt with on a case-by-case basis.

Unknown Speaker: But Mr. Estrada, suppose the defendant says, I don't want to face a total forfeiture, and I realize this argument you're making.

I would rather have some defense than none, so if the district court wants to issue any kind of protective orders so that I won't get premature... a pre-vision of the criminal case, so be it, but at least give me some chance to defend.

The Government, in order to effect its interest in not having more disclosure than in the criminal case doesn't have to say, you can't come in at all.

It can say--

Mr. Estrada: I don't--

Unknown Speaker: --Yes.

Mr. Estrada: --I mean, let me make two points in response to that question.

The first one is that I think that it is not right because it is possible that he could say that all he intends to do in the action is to call the following six witnesses who will testify that in fact all property came from an inheritance or from some other source of income, and we may well know that that is not true because all of our evidence in the criminal case shows where the property comes from.

So all that is doing is pushing the problem one step further, because he will then put us to the choice either of compromising the criminal case or--

Unknown Speaker: Are you saying there are no circumstances in which he could defend that would not involve disclosing the Government's case?

Mr. Estrada: --No, I am not saying that.

What I am saying is there are enough circumstances in the class of cases to warrant the adoption of a general rule while recognizing that the rule can have exceptions for specific cases being, in its nature, discretionary.

Unknown Speaker: Well, why in the example that you just gave does that example support you?

Why, in the case in which the Government knows because of its criminal evidence the property came from some other source than inheritance, couldn't the Government simply go to the court and say, we have evidence to rebut?

We will make a good faith offer of proof without disclosing the evidence itself, and therefore you in fact ought to stay the proceeding so that we don't have to disclose our case.

I suppose your answer is, well, we want the money, but--

Mr. Estrada: And we have a legal right to it.

Unknown Speaker: --But the fact is, in each instance what it comes down to is not your incapacity to defend your own position, and not your incapacity, in effect, to meet the evidentiary position that you feel is unfairly being foisted upon you, but rather, it comes down in every instance to the fact that you want the property now rather than the property at some later time when the two proceedings could be dealt with in an orderly fashion.

So it seems to me that it all boils down to kind of a time-money argument.

Mr. Estrada: Well, it boils down to the fact that under the act of Congress that we have at issue here, we have a right to the money, and that there is no foreseeable time in the future at which the two proceedings can be dealt with in an orderly fashion.

Unknown Speaker: But you don't hold the same in respect to misrepresentation cases, restitution cases, fraud cases, dozens of other cases in which the Government might have civil remedies.

You're not going to say all those, also, are forfeited, are you?

Mr. Estrada: What we would say is that courts would have authority to frame the rules that would keep the public interest from being harmed as a result of an early--

Unknown Speaker: And the same, then, here.

Not--

--The same, then, here.

Mr. Estrada: --Well, that's right, and this is such a rule, and that's our point.

Unknown Speaker: But isn't there a difference between a rule that says, you can't present... have certain discovery, present certain defenses, that's what people are asking you, and a rule that says, you can't come into court at all.

You can't present any claim, any defense, anything.

Mr. Estrada: Well, the rule was used by the district court in this case, Justice Breyer, is the rule saying if you want to defend the civil forfeiture action, you have first to face the criminal charges, and the district court was quite clear... and, in fact, I could point the Court to the top of page 26a of the pet app.--

The court made it quite clear that he would be free to defend the civil forfeiture action to his heart's content if he would only appear in the criminal case, and--

Unknown Speaker: Isn't one of the Government's possible losses if the petitioner's suggestion... the same thing that a statute of limitations would provide, witnesses' recollections get stale--

Mr. Estrada: --That's right.

Unknown Speaker: --If the thing is brought to trial 8 years from now, the Government may have had a good case now, but the witnesses may not be around, they may have died in the meantime.

Mr. Estrada: And that is true both in the criminal case and in the civil case, and I think it leads me to a further point that I wanted to make in response to Justice Souter, which is that we can readily concede for purposes of this case that there is no legally enforceable duty to show up in the criminal case that flows from the criminal case itself.

That does not mean that his failure to show up in the criminal case has a positive value to our society that we should strive to accommodate in framing rules for the orderly conduct of the civil litigation.

Unknown Speaker: Well, if he has no obligation to show up, I suppose the societal value is even Steven.

It's neither positive nor negative.

Mr. Estrada: Well, that is not so, because we have a duly returned indictment, and we have a--

Unknown Speaker: Then why don't we have a set of rules that obligates him to show up.

You just conceded that he wasn't obligated to show up.

Mr. Estrada: --No, I said that it is not significant for our case in this case to show that he has a legal duty that flows from the criminal case, but what is at issue here is whether the court in the orderly process of the civil case may have a rule to protect the civil case processes from being misused in the criminal case, and it is equally true, for example, that there is no legal duty to... let's say, for example--

Unknown Speaker: Yes, but Mr. Estrada, by hypothesis you're assuming you can never compel him to come to the United States, is that correct?

Mr. Estrada: --Well--

Unknown Speaker: Other than by this... by using the civil procedure to do so.

If you can't compel him to stand trial on the criminal case, you haven't lost anything by proving and winning your civil case.

You still get the same property, but you had to prove it instead of using this sanction to get it, and you end up with the property but no criminal judgment, and the reason you can't get a criminal judgment is you don't have authority to compel him to come from Switzerland to the United States.

Mr. Estrada: --But he doesn't--

Unknown Speaker: You still end up with exactly the same result.

Mr. Estrada: --But he does not have the right to buy his way out of a criminal indictment either, and he has no right--

Unknown Speaker: He's not buying his way out of it, he's just staying in Switzerland.

Mr. Estrada: --No, the difference is, Justice Stevens, that we're entitled to the expectation that if we ever get our hands on him we're going to put him in a U.S. jail, where we think he belongs, and under your view of the facts what would really happen is that we would be entitled, as of now, to say $5 million only if we're ready to give up for good the hope of ever bringing someone to justice who spent the better life of his--

Unknown Speaker: You haven't given it up for good.

The only thing you've given up is by putting in your proof you've disclosed to him the witnesses who will testify against him in the criminal case.

That's the only thing you have to give up.

Mr. Estrada: --Right, and that is--

Unknown Speaker: The tactical advantage in the criminal case may or may not be all that important.

Mr. Estrada: --It is not a tactical advantage, and I understand that it is possible to have different views on the value of criminal discovery, Justice Stevens, but--

Unknown Speaker: He's not getting any discovery.

I'm assuming that the trial judge in this case could say, you can have no discovery, but he's going to say to you, you can't get the property without proving you're entitled to it.

Mr. Estrada: --And we did that.

I'm not saying that we are not required to make the prima facie showing that the statute requires us to make.

All we ask--

Unknown Speaker: Oh, but you are.

Aren't you saying you're entitled to the property even without the prima facie showing?

Mr. Estrada: --No, we're not.

We're not, and we're also saying--

Unknown Speaker: Well, if you've made the prima facie showing, why haven't you already disclosed your case, then?

Mr. Estrada: --Because we can make a prima facie showing by a verified complaint in an affidavit that shows probable cause, which under the forfeiture laws then shifts to him the burden of proving a lawful source for the funds, but it is not our view that we can come into the court without making a prima facie showing under the forfeiture laws and get a judgment.

All we're asking for--

Unknown Speaker: So it boils down to your fear that you would open the door to criminal discovery, then.

Mr. Estrada: --Well--

Unknown Speaker: That's your real fear here.

Mr. Estrada: --Well... yes.

Unknown Speaker: You answered a question about that before, and I'm not sure that I understood your answer.

Justice Stevens alluded to the problem a second ago.

Let's assume that he tries to get criminal discovery.

Why isn't it perfectly open to the Government in that event to say, don't give him the discovery, because if you do you will be providing discovery in fact in a criminal case to which he is not entitled, a case in which he will not appear, and for that reason, court, use your discretionary authority not to allow discovery.

Why can the Government not be protected that way?

Mr. Estrada: Because, as I think I indicated earlier, that only pushes the problem one further step.

He will then come in and put whatever evidence he thinks he has, and in effect put us to the choice of disclosing our case to meet his evidence, or giving up on the forfeiture case, and as I was going to--

Unknown Speaker: So it's not a discovery issue then.

As you say, it just pushes it further.

You want to put in a minimal case.

You want him to know as little as possible consistent with your capacity to... in effect, to justify the forfeiture.

Mr. Estrada: --No--

Unknown Speaker: It's not discovery.

It's nondisclosure.

Mr. Estrada: --We are happy... well, yes and no.

We're happy for him to know as much as he wants so long as he knows it at a time when he no longer has the possibility of affecting--

Unknown Speaker: No, no, we realize--

Mr. Estrada: --the criminal jurisdiction.

Unknown Speaker: --No, I realize you're happy in that case, but what it boils down to, though, it seems to me, though, is that as you say, it's not really that we can't protect... we, the Government, cannot protect ourselves in discovery.

We simply don't want to have to put on a comprehensive case, because in doing so we might provide some advantage to him for use in the later criminal case if it is later tried.

Mr. Estrada: I don't think that that's an entirely fair recharacterization of what I said.

Unknown Speaker: Well then, help me out again.

Mr. Estrada: I think we're happy to make a prima facie showing, and we're happy to have a full-blown trial, if we are sure that we will not be endangering the criminal prosecution.

It is not that we--

Unknown Speaker: Well, you're not endangering it.

You're endangering it in the sense that you would be disclosing more of your case than any rule of criminal discovery requires you to disclose.

That's what you mean by endanger, isn't it?

Mr. Estrada: --Yes, but what I also mean is that the reason for the rules on criminal discovery is that what often happens when we have it is that we have obstruction of justice and witness intimidation and contrived testimony, and that the judgment of the rules being as strict as they are, and they do reflect a public policy, is that the danger of that happening cannot effectively be controlled on a case-by-case basis.

I mean, we cannot take a wait-and-see attitude to see whether someone will attempt obstruction of justice because often the first indication that we will see is the contrived defense at trial followed immediately by an unwarranted acquittal.

Unknown Speaker: So this doesn't sound like it's a rule of the trial court's discretion.

Mr. Estrada: Well, it is in the sense, Justice Kennedy, that the district court retains discretion in every case.

They also retain the extent of the dangers.

I--

Unknown Speaker: But from all you have said, I presume that it would have been an abuse of discretion for the trial judge not to entertain your motion--

Mr. Estrada: --In an ordinary case?

Unknown Speaker: --to disentitle him here.

Mr. Estrada: In an ordinary case, that would probably be true, especially with charges... with criminal charges of the nature that is at issue here.

Unknown Speaker: If we have that rule, I suppose we're telling all other countries in, at least countries with an open judicial system, that if there is a criminal charge filed against a United States national living in the United States that person's property can be forfeited if the person doesn't go to the foreign country to answer their charges.

Mr. Estrada: I'm not sure that I understand your question, Justice Kennedy.

Unknown Speaker: Well, you're asking us to adopt a rule that a foreign national must come here to defend against... well, or a person with dual nationality must come here to defend a criminal charge or he's going to lose his property automatically.

Mr. Estrada: I--

Unknown Speaker: And I suppose it works the other way around.

Mr. Estrada: --I think that it would be fair to say that we do say that the interest of the court in the civil case to guard against the misuse of its processes are strong enough to warrant a rule telling somebody that he should come meet criminal charges.

Unknown Speaker: Of course, that's no problem if we're worried about foreign countries copying us and thereby prejudicing American citizens.

Many foreign countries already allow criminal prosecutions in absentia--

Mr. Estrada: In absentia, that's correct, Justice Scalia.

Unknown Speaker: --The situation is already worse than that.

Mr. Estrada: Unfortunately, yes.

Unknown Speaker: You would take the same position even if he were not an American citizen, wouldn't you?

Mr. Estrada: Yes.

Unknown Speaker: Yes.

Mr. Estrada: In respect... as that justification goes, that is true.

I will point out, as we did in our brief, that he is, in fact, an American citizen both by birth and by breeding, and--

Unknown Speaker: Then with respect to that, don't you have authority, or couldn't an authority be exercised over him if Congress so chose that could not be exercised over someone who's not a citizen, and there is the old Blackmer case.

Mr. Estrada: --That's correct.

Unknown Speaker: There is authority to call back our citizens to answer for charges here, but that kind of subpoena wasn't sent to him, was it?

Mr. Estrada: It was not sent to him to be a witness in the criminal case, and I think that the relevance of the Blackmer case here is that it shows that the United States as a sovereign has the right to have a rule that calls them back to this country to respond to court process.

There's--

Unknown Speaker: Mr. Estrada, tell us about fugitives from justice.

Is it, indeed, not an obligation of a citizen to present himself when he knows that there's an arrest warrant out for him?

Mr. Estrada: --Well, I think it is a... yes, but I think we think of it--

Unknown Speaker: It's not a separate crime, though.

Mr. Estrada: --as a civic duty.

Unknown Speaker: It's not a separate crime to be a fugitive from justice.

Mr. Estrada: It is--

Unknown Speaker: Perhaps because there's no use in it.

The guy's already a fugitive from one crime.

Mr. Estrada: --Well, right.

It's like piling on... there's no point.

Unknown Speaker: The only purpose of such a statute would make him a fugitive from two crimes.

Mr. Estrada: Well, I mean, there's no point.

Unknown Speaker: I guess you could have another statute making it a crime not to end your fugitive status.

That would be three crimes that you can violate.

[Laughter]

Mr. Estrada: Well--

Unknown Speaker: Well, but also you'd say the Government could take... Congress could pass a statute saying that anyone who's been indicted and who does not appear in due course without... all his property may be forfeited, period.

Mr. Estrada: --Do I say that?

Unknown Speaker: Yes.

Mr. Estrada: Subject to the qualification that I think flows from some of these courts' due process cases that he be shown to have had notice and that it was possible in fact for him to come.

I mean, it may be that he is... that we don't know where he is and we can't effectively give him notice, nor we may know whether; in fact, it is possible for him to comply, but subject to that--

Unknown Speaker: Subject to notice and ability to appear.

Mr. Estrada: --Yes.

Unknown Speaker: If you could prove that--

Mr. Estrada: Yes.

Unknown Speaker: --Is there any international norm on that, did you find?

Mr. Estrada: On what, Justice Breyer?

Unknown Speaker: Any international norm about whether country anywhere in the world can say to all citizens of the world once we file a criminal indictment against you, you have to travel here, no matter how far, and if you don't, you lose all your property.

Mr. Estrada: I don't--

Unknown Speaker: Is that ever... did you look that up at all?

Mr. Estrada: --No.

I don't think so.

From our point of view the case really does involve the very narrow question of the power of the civil court to make sure that someone will not misuse it to gain an unfair tactical advantage.

And it is, as the district court framed it, a limited rule, and as the court of appeals recognized, a rule that allows for the exercise of discretion in specific cases, this not being one of them, because Mr. Degen waived any right to discretionary claims in the court of appeals, but it is not in any sense the type of extreme rule that Mr. Robbins has indicated we have.

Unknown Speaker: Would the same rule apply if a victim sued in the district of Nevada for harm caused by an absent defendant based on a crime in the indictment, an assault, say?

Mr. Estrada: Based on a crime in the indictment such that the same concern about the early disclosure of the Government's case would apply, yes.

Unknown Speaker: And I take it on a long arm statute there'd be jurisdiction so that that judgment would be enforceable personally against the defendant, I suppose.

Mr. Estrada: That's right.

Unknown Speaker: Automatic liability.

Well, not--

Mr. Estrada: Well--

Unknown Speaker: --If there's a prima facie case.

Mr. Estrada: --It is not... it is--

Unknown Speaker: If there is a prima face case.

Mr. Estrada: --If there is a prima face case, and he wishes to dispute the case, there's a reasonable procedural rule to say we have such a strong interest in protecting the integrity of the related case that we will require you to come face the music in that case as a condition to maintaining your civil action, which is no different from having filing fees or timing requirements on when you file your brief, although which are predicated on the notion that these are simple rules with which a litigant can comply and that serve usefully the purpose of allowing the court in the civil case to conduct orderly, fair, and expeditious litigation.

Unknown Speaker: Mr. Estrada, what is the difference... what does the Government lose when it has the funds in the court, what can't it do that it could do if the forfeiture had gone through as you're urging?

Mr. Estrada: Well, under the view of the other side, we can't get the funds into the U.S. Treasury where we think they belong.

Unknown Speaker: But you can put them in an interest-bearing account.

Mr. Estrada: And to wait... what, Justice Ginsburg?

I mean, there is no reasonable indication that he will ever come to this country to face the criminal charges, so what we're saying is that we're going to put the money in a bank where the Government has no access to it, even though it has made a showing--

Unknown Speaker: Well, he'll probably die before the Government does.

You'll get it eventually.

[Laughter]

Mr. Estrada: --Yes.

Unknown Speaker: At that point you go ahead with the civil case.

He's beyond your criminal punishment anyway.

Mr. Estrada: But we're entitled to it now, and--

[Laughter]

And--

Unknown Speaker: My question is, that's... is there something concrete, that's different about saying, we're entitled to it now, and saying we've got the principal in the bank and we're getting interest on it, and so we're getting the time value, we're getting... we're not getting the principal, but we're getting the interest?

Mr. Estrada: --I understand the point of your question, and I would say that I suppose that is a form of a compromise that has as much grounding in the court's inherent authority as the more easily manageable rule that we have here, and since we are not the people at fault, and since by statute we are also entitled to the principal, it seems to me that as between the choice of two reasonable rules that accomplish a purpose, we're entitled to that one that gives us our statutory rights.

Unknown Speaker: Yes, but you're entitled to it if you can prove it, but you want to get it without proving it.

Mr. Estrada: We have proven our entitlement to the money--

Unknown Speaker: Well--

Mr. Estrada: --and all we're looking to see is that in disputing our showing the other party doesn't put us to the choice of giving up our statutory entitlement or giving up the very strong public interest in the integrity of a criminal prosecution.

Thank you, Mr. Chief Justice.

Rebuttal of Lawrence S. Robbins

Chief Justice Rehnquist: Thank you, Mr. Estrada.

Mr. Robbins, you have 5 minutes remaining.

Mr. Robbins: Thank you, Mr. Chief Justice.

This case is a very good illustration for why what this Court called the blunderbuss of dismissal is inappropriate as way of solving the problem that the Government is concerned about.

If disentitlement is to be taken at the threshold in order to protect against the possibility that there may be discovery in the civil case that provides a window into the criminal case, district courts can do that, and they do it of every day of every week by applying Rule 26(c) of the Rules of Civil Procedure, and issue protective orders.

This case, however, is different, because in this case the Federal prosecutor said to the district judge in an argument, made and reproduced on page 6a of the appendix to our brief, that there was no need to stay the forfeiture proceedings one minute longer in deference to the criminal case precisely because the cat was out of the bag in the criminal case.

There was no need to protect against the disclosure of witnesses, no need to protect against the disclosure of any evidence, and in response to the prosecutor's argument, the district court said, fine, you can go ahead and take all the depositions you want... Karen Degen, the petitioner's wife, and in an order that's reflected in the minutes of the February 1, 1993 transcript.

In short, this district judge concluded that no protective order was appropriate precisely because there was nothing to protect against.

Unknown Speaker: Is Karen Degen in the United States?

Mr. Robbins: She is not.

She is living with her husband and their children in Switzerland.

Unknown Speaker: So a discovery order was entered against her but not against Brian?

Mr. Robbins: Discovery was issued in her favor, but not in Mr. Degen's favor, that's correct, Your Honor.

The point here is the wonderful irony about this argument is it bears no... you know, no coherent relationship to the facts of this case, and precisely to avoid a problem that the prosecutor said was not presented, Mr. Degen is to be disentitled, dispositively sanctioned for conduct that the court has no jurisdiction even in the action in which he is a putative fugitive, to sanction him for.

Let me also get rid of one other red herring.

Unknown Speaker: In that same exchange, what is the argument when you said, I would point out, Your Honor, that Mr. Degen is no longer a claimant in this case, he's merely a witness?

Mr. Robbins: Well, he'd already been disentitled, so what they were saying is, you know, don't pay any attention to the need to get his evidence because you've already knocked him out of the box, and to the extent that Karen is relying on his unavailability as a reason to extend the summary judgment proceedings, you shouldn't credit his... the need for his testimony.

The other red herring I'd like to deal with is the argument that the Government has already established its right to this money.

What it has established is its right to the seizure of this money and this property through a prima facie showing, to be sure, but if I can be indulged one other Latinism, it's also completely ex parte.

They went into court with a complaint and an affidavit that, you know, to my mind barely shows probable cause to believe any of the property was in fact used in violation of 881(a)(6) and (a)(7), and now they have the money, and now, as the law permits, it's our burden to come into court and overcome that prima facie showing.

It's our day in court, the first and only one we get.

Unknown Speaker: Mr. Robbins, what they did, what they showed is comparable to what a plaintiff would have to show in the case of an ordinary civil default judgment, right, make an ex parte showing of the entitlement to money damages.

Mr. Robbins: Well, that's correct.

They've gone in and shown that they have at least that much of a claim, but the law then permits Mr. Degen to come in and overcome it, and you know, if his unavailability prejudices his capacity to make that showing, then he's so much the worse for it.

We're not asking that he be treated any better.

We're asking that he be given the rights and opportunities that the law prescribes, and he's being... you know, he's been foreclosed those opportunities by virtue of conduct that is not against the law, period, and it seems to me that courts can't do it and we--

Unknown Speaker: Not against the law, you mean not criminal?

Mr. Robbins: --It is not criminal.

I mean--

Unknown Speaker: I question whether it's not against the law, to fail to appear.

Mr. Robbins: --Well, Your Honor adverted to whether there isn't some other law inherent in the duty of citizenship.

It may be, although Blackmer does not deal with that issue, I would respectfully suggest, but rather a quite different issue.

Chief Justice Rehnquist: Thank you, Mr. Robbins.

Mr. Robbins: Thank you.

Chief Justice Rehnquist: The case is submitted.

Attribution:

The OYEZ Project

Featured:

Ortega-Rodriguez v. United States - Oral Argument

Fri, 09 Jan 2009 14:49:26 +0000

Case:

Ortega-Rodriguez v. United States

Media File:

91-7749_19921207-argument.mp3

Related Transcript:

1992_91_7749_argument.xml

Transcript:

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.

That's correct.

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.

That's correct.

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.

But--

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--

--Go ahead.

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.

That's correct.

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.

So--

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.

It's true.

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.

In--

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 know--

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.

Because--

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.

Courts--

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.

The way--

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.

And--

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.

[Laughter]

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.

[Laughter]

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.

[Laughter]

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?

Because I--

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?

[Laughter]

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.

I--

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?

[Laughter]

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--

[Laughter]

Unknown Speaker: Burn the--

Mr. Wax: --after this Court's--

Unknown Speaker: --courtroom, right?

Mr. Wax: --cases.

[Laughter]

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.

Attribution:

The OYEZ Project

Featured:

California v. Superior Court Of California - Oral Argument

Fri, 09 Jan 2009 14:48:29 +0000

Case:

California v. Superior Court Of California

Media File:

86-381_19870422-argument.mp3

Related Transcript:

1986_86_381_argument.xml

Transcript:

Argument of J. Robert Jibson

Chief Justice Rehnquist: Mr. Jibson, you may proceed whenever--

Mr. Jibson: Mr. Chief Justice, and may it please the Court:

The issue before the Court in this case is whether an Asylum State Court may block extradition on the ground that the person is not charged with a crime because that court concludes, based on extrinsic evidence, that the person is innocent.

On March 9th, 1984, real parties in interest, Gerard and Richard Smolin took Richard Smolin's two minor children from his school bus stop in Slidell, Louisiana, St. Tammany Parish, and removed them to the State of California.

Unknown Speaker: Mr. Jibson are you reciting facts?

Now, from where are you getting those facts?

Mr. Jibson: These facts are from the record of the record of the habeas corpus hearing, Your Honor.

Unknown Speaker: The record of the habeas corpus xxx.

Mr. Jibson: That's correct.

At the time of the abduction, the children had been living with their mother, in her custody for three years in the State of Louisiana.

Three days after the abduction, the St. Tammany Parish prosecutor filed simple kidnapping charges against Gerard and Richard Smolin.

And their extradition from the state of California was sought.

Two months later, in June of 1984, the Louisiana Governor sent a requisition to the Governor of California, requesting the extradition of the Smolin's.

After two more months, in August of 1984, the California Governor granted the extradition request and issued his warrant for the rendition of the Smolin's.

However, the courts of California have now blocked the extradition on the basis that the Smolin's are not actually charged with a crime.

They reached this conclusion only after the habeas corpus courts in California took judicial notice of some other California court records containing a decree which gave Richard Smolin custody of the children.

Essentially, the habeas corpus court found that since, in light of that decree giving Mr. Smolin custody, he could not be found guilty in the state of Louisiana; therefore, he and his father Gerard were not actually charged with a crime in Louisiana.

Unknown Speaker: xxx does the state argue at all that the habeas proceeding should not have gone forward at all?

Mr. Jibson: No, the state is not taking that position, Your Honor.

Unknown Speaker: So that there maybe some inquiry made by the habeas court into what?

Mr. Jibson: the habeas corpus court may inquire into four very narrow areas, Your Honor.

Two of those are factual, and two of those are legal.

Unknown Speaker: Where do these limitations come from.

Mr. Jibson: They come from this Court's case in Michigan v. Doran in 1978, Your Honor.

The factual questions that may be inquired into in habeas corpus are Number 1: Whether the person before the court is, in fact, the person wanted by the demanding state.

Question of identity as the person charged.

Secondly, whether in fact he is a fugitive and by that I mean a legal term of art whether he was in the state at the time the alleged offense took place.

And thereafter, is found in another state.

Fugitivity if you will.

Those two factual questions.

Then the legal questions are whether the extradition papers on their face are in order according to the--

Unknown Speaker: Well now, in order in what sense?

Whether--

Mr. Jibson: --Whether they meet--

Unknown Speaker: --Whether they're properly charged?

Mr. Jibson: --That is actually the fourth inquiry, Your Honor.

The facial validity of the papers--

Unknown Speaker: But the habeas Judge could look at the habeas papers, all of the papers--

Mr. Jibson: --The extradition--

Unknown Speaker: --I mean, the extradition papers rather.

Mr. Jibson: --That's correct.

Unknown Speaker: And determine whether or not the, what's his name, was properly charged, may it not?

Mr. Jibson: It may look at the extradition papers, yes.

Unknown Speaker: And determine whether properly charged?

Mr. Jibson: That's correct.

Unknown Speaker: And how far does that inquiry go?

Mr. Jibson: That inquiry, it is our contention, is limited to what is included in the extradition papers.

Whether they, on their face, state the charge of an offense in the demanding state.

Unknown Speaker: Uh-huh.

xxx also have to show that it is a crime in that state too?

Mr. Jibson: The papers must allege that it is a crime in that state.

That's true.

Unknown Speaker: In both states.

Mr. Jibson: No, that is not true, Your Honor.

As a matter of fact, it only need be shown that the crime for which extradition was sought is a crime in the demanding state.

It doesn't even matter if it is a crime in the asylum state as a matter of fact.

The criteria is whether the person is charged under the law of the demanding state.

Unknown Speaker: I'm curious to know where that requirement comes from, because one would think that the Louisiana authorities would be the best judge of whether the person is charged with a crime under Louisiana law.

Why should a California Superior Court look into the law of Louisiana?

Mr. Jibson: Well actually, Your Honor, that language

"under the law of the demanding state. "

is contained in the Uniform Criminal Extradition Act, which has been adopted by both the states involved here as well as all other states with the exception of two.

Unknown Speaker: And the Uniform Extradition Act says that the court of the asylum state may examine into that question.

Mr. Jibson: No, it doesn't say that explicitly, Your Honor.

The courts--

Unknown Speaker: Then why should the court in California go that far?

Why should it examine it where the state's a claimant of Louisiana law?

I thought your position was that you just looked at the face of the papers and if those papers purported to state a charge under Louisiana Law that was the end of it.

You're not supposed to go to the statute books and look about anything.

Mr. Jibson: --Well,--

Unknown Speaker: California courts don't know Louisiana law.

Mr. Jibson: --That's true.

That's true.

And--

Unknown Speaker: Isn't that your position?

Mr. Jibson: --It is our position that you look at the face of the documents to determine whether there is a charge there.

Unknown Speaker: Well, Mr. Jibson, suppose xxx.

I take it that means also looking at the face of the affidavit's, does it not?

The affidavits that accompany the--

Mr. Jibson: The face of the affidavit's.

That's right.

Unknown Speaker: --And on the face, they do state a charge.

Mr. Jibson: That's correct.

Unknown Speaker: Let's assume.

But, let's suppose the judge knows, personally knows from previous experience with the case, as I gather was the case here, that those affidavits do not state the facts as he recalls them personally.

Mr. Jibson: It is our contention that he is not permitted to bring to bring extraneous--

Unknown Speaker: He can't do that?

Mr. Jibson: --That's correct.

In the context of the extradition hearing he is not to bring in extraneous facts, other than what is contained in the four corners of the extradition papers.

That's true.

And that is our contention.

Unknown Speaker: Including notice, judicial notice of lawful judgments and decrees of the asylum state, is that right?

Mr. Jibson: That's correct insofar as it bears upon these questions of law which are--

Unknown Speaker: Well, do you concede that the California custody decree granted lawful custody of the children to Mr. Smolin.

Mr. Jibson: It appeared to.

It purported to, yes.

And the problem that, maybe I can give a little--

Unknown Speaker: --Well, if so, could the Smolin's be guilty of a crime in Louisiana?

Of this crime, if Mr. Smolin had lawful custody?

Mr. Jibson: --If he had lawful custody, it would appear that he has got a defense to the crime.

But the problem with going beyond the face of the documents when you're inquiring into this question of whether the person is substantially charged is because you just don't know what else is out there.

We do have these decrees that were found in the California court file, but as I've indicated in the brief, there are grounds upon which those can be disputed.

And, in fact, the Louisiana authorities do dispute the validity of those.

They're aware of those orders.

They dispute their validity.

And it's my position that the extradition--

Unknown Speaker: xxx federal law though, it seems crystal clear that only California had jurisdiction.

Mr. Jibson: --What was crystal clear under federal law and I don't want to transform this into a custody case, but what's clear under federal law is that California retained modification jurisdiction over the original order which gave Mrs. Pope custody of the children.

That is not the same, I submit, as to whether that is the only court that can deal with the custody issue regarding these children.

As I said at the outset, these children had been living with their mother for three years in the state of Louisiana.

They had established home state jurisdiction in the state of Louisiana.

And, as a matter of fact, custody proceedings were pending in Louisiana at the time of this abduction.

Now, as I said, there are areas for dispute as to whether or not ultimately, Mr. Smolin had custody of the children.

Unknown Speaker: Well, the Federal Parental Kidnapping Act would not appear to give any state other than California, jurisdiction to modify the decree--

Mr. Jibson: If I--

Unknown Speaker: --As long as one of the parents remained in California, as Mr. Smolin did.

Mr. Jibson: --to modify the decree, that's correct.

If I might I could quote just a brief section of that Federal Act, Your Honor, and hopefully this will help to answer that particular question.

This is subdivision G of 1738(a).

A court of a state shall not exercise jurisdiction in any proceeding for a custody determination commenced during the pendency of a proceeding in a court of another state.

Or such court of that other state is exercising jurisdiction consistent with the provisions of this section to make custody determinations.

Just one ground as a possible means of attacking this particular decree that Mr. Smolin is relying upon would be that there were pending Texas proceedings regarding the custody of these children at the time he went in to the California court to get the custody decree modified in his favor.

He was aware of those Texas proceedings.

Those Texas proceedings were being held in order to receive a full faith and credit recognition of the original California order.

There was no notice to the California court when Mr. Simolin went in to get his modified decree.

The Texas proceedings were already pending; therefore, there would be a violation of this section of the Federal act.

The point is, in these custody disputes and I'd rather get back to the extradition issue, but in these custody disputes the key under both the Federal act and the Uniform Child Custody Jurisdiction Act is communication where there might be problems with concurrent jurisdiction, where more than one court might have jurisdiction over the custody matters involving these particular children.

Communication did not occur in this case; therefore, we have a result of conflicting custody orders.

So, the point of all this is that it was not that cut and dried that he could not be charged.

This actually goes to the merits of the case in Louisiana.

And, of course, this is my base line position that those have to be delved into only where the charges are pending out in the asylum state.

That is not part of the summary executive proceeding that we call extradition.

This Court has on numerous occasions recognized that extradition is intended to be a summary executive proceeding in which the courts of the asylum state play an extremely limited role.

In Michigan v. Doran, this Court clearly stated that a court of an asylum state can do no more than decide those four issues that I enumerated a little bit earlier.

Can do no more than.

It's a matter of power of the courts.

This Court indicated that asylum state courts are without power to go further than that.

And I submit that what occurred in this case is that the California Supreme Court.

Unknown Speaker: Let me just, maybe you've already answered this, but xxx, the Chief Justice's question, and what is the source of the law that says they have no power to go beyond this?

What do you rely on?

Do you rely on the Uniform Extradition Act, the Federal Statute or the Federal Constitution xxx?

Mr. Jibson: When I say, no power to go beyond those four inquiries,--

Unknown Speaker: Yes.

Mr. Jibson: --I'm relying on Michigan v. Doran.

This Court's decision xxx.

Unknown Speaker: You mean you're just relying on an opinion of this Court?

Mr. Jibson: That's correct.

Unknown Speaker: Which was based on what?

Mr. Jibson: Which was based on the extradition clause in the Constitution and the Federal Extradition Act.

Unknown Speaker: And the Federal Statute.

Mr. Jibson: That's correct.

Unknown Speaker: So, you don't rely on the Uniform Act for this purpose?

Mr. Jibson: Well, the Uniform Act was promulgated and enacted by the various states under the auspices of the extradition clause and it supplements it.

But I'm not just relying on the UCEA.

No, Your Honor.

As this Court made clear in Michigan v. Doran, these are requirements that are dictated under the Constitution provisions as well as the Federal Act.

Unknown Speaker: And it's your position, I want to be, maybe this is repetitive and I don't mean to do that but, can the court in the habeas corpus proceeding at least inquire as to whether there is a statute in Louisiana as alleged in the charging papers?

Can it look at the statute books?

In your view?

Mr. Jibson: Yes, they can take judicial notice of the statute in the demanding state.

Unknown Speaker: What if there is a court decision in the demanding state construing the statute, can they look at that?

Say there's a court decision that says the prosecutor in a case like this has the burden of proving that the alleged kidnapper, when he's a parent, did not have custody?

Mr. Jibson: Well, they can look at court decisions that amount to the general law of the state, of the demanding state.

That's true.

Unknown Speaker: For what purpose?

I don't understand that.

Mr. Jibson: Well, that would again go to--

Unknown Speaker: It seems to me you're slipping into a trial of the merits once you start looking at court decisions.

Mr. Jibson: Well, the extent to which they can look at those is very limited and it has to appear on the face of the documents that the charges as set forth in the charging documents clearly do not fit within the law if, for example, if another state--

Unknown Speaker: --So the asylum state conducts sort of a judgment on the pleadings kind of a call, is that xxx.

Mr. Jibson: --Well, I wouldn't go to that extent.

It has to be so clear that there is no interpretation of the demanding state's law by the asylum state.

They can't go that far.

xxx.

Unknown Speaker: So long as the requesting state's law is clear, the asylum state can use it, is that it?

Mr. Jibson: That's right.

If it reasonably fits within the law of the demanding state.

If it's clear on its face that it does.

Unknown Speaker: All you need is a clear defense to the charge and you can't be extradited?

Mr. Jibson: No, no.

Unknown Speaker: I thought that's what you just said.

Mr. Jibson: No.

No.

Because that would--

Unknown Speaker: Well, I don't understand what you're saying then.

Mr. Jibson: --That goes, no, that goes to the question of an affirmative defense to the charge that can be raised only in the demanding state.

Unknown Speaker: Affirmative defenses are not allowed, even if they're clear?

Mr. Jibson: That's correct.

Unknown Speaker: Even if they're in the statute?

Supposing the statute contains a proviso, provided that it shall not constitute the crime of kidnapping if the alleged kidnapper happens to be the father who has a decree awarding him custody of the child?

And it's all spelled out in the statute?

We still couldn't look at that?

Is that your view, because it's an affirmative defense?

Mr. Jibson: No, you cannot look at that xxx.

Unknown Speaker: Even though it's perfectly clear on the face of the statute that the man can not be convicted of a crime?

Mr. Jibson: Well, then you're presupposing the other fact and that is the fact that somehow the papers show that it--

Unknown Speaker: I say we're relying on Louisiana Code Provision XYZ.

You read it and it says in there if he's the custodial parent he cannot be charged with this crime.

That it's an affirmative defense in the statutes and the proviso.

You say you can't rely on that as I understand your view.

Mr. Jibson: --No, what you cannot rely upon is an asylum state court interpretation of the demanding state's law.

Unknown Speaker: No matter how clear?

Mr. Jibson: No.

Unknown Speaker: Even if there's a cow case right on all fours, you can't rely on it?

Well, then you're saying in effect--

Mr. Jibson: Not if it's the demanding state.

Unknown Speaker: --you're saying in effect that the Louisiana authorities are the judge of whether he's charged under Louisiana law.

Mr. Jibson: Exactly.

That's what I'm trying to say.

Unknown Speaker: Well, but you're not really saying that.

You're saying, unless it's clear.

I mean that's what I'm trying, I can understand that.

That a sensible position, leave--

--It's clear.

Why not just stick with the proposition that the Louisiana authorities are the judge of what Louisiana law says.

Mr. Jibson: Well, that's my premise that they are the judge of what the law says.

Unknown Speaker: But--

Mr. Jibson: If their statute is included in the papers let's say, which often is the case and clearly the allegation simply does not state a crime under the law of that demanding state then there might be an argument to be made that he's not substantively charged.

Unknown Speaker: --So the asylum state courts can second guess the prosecutor who wrote out the charge.

He made a charge under a certain statute.

Mr. Jibson: Well, what actually--

Unknown Speaker: And the, so you can review his, you can in effect grant a motion to dismiss for failure to charge a crime.

Mr. Jibson: --No, what actually happens--

Unknown Speaker: Is that your position?

Mr. Jibson: --No.

No it isn't, Your Honor.

Unknown Speaker: Well, it sounds like it.

Mr. Jibson: What actually happens in those situations and believe me they do not come up in the extradition context because of the communication that goes on between the asylum state authorities and the demanding state authorities.

And, if there would appear to be a question in the mind of the executive people who are reviewing the documents, then the matter is cleared up as a matter of demanding state law.

The demanding state authorities are the ones who are to determine--

Unknown Speaker: But that's the governor's inquiry.

We're talking about a habeas corpus.

Mr. Jibson: --That's right.

Unknown Speaker: A court inquiry after the kind of second guessing the governor.

Mr. Jibson: That's right, they are second guessing the governor.

Unknown Speaker: Well, supposing that there's an, I don't know if Louisiana has information or indictments, but supposing the charge simply is that the county attorney of St. Tammany County charges that this defendant violated Section 11256 of Louisiana Code.

Now what sort of an inquiry can be made by the asylum state?

Mr. Jibson: Well, there wouldn't be any inquiry in that particular situation because it is lawful to charge simply in the language of the statute, or even charges--

Unknown Speaker: Well, how do you know what's lawful in Louisiana?

You're a California lawyer.

If that comes from Louisiana, don't you simply presume it's lawful to charge that way in Louisiana.

Mr. Jibson: --Yes, you do and that's why I say there wouldn't be an inquiry xxx.

Unknown Speaker: Well then you don't look at anything but the paper?

Right.

Mr. Jibson: That's correct.

Unknown Speaker: I wouldn't be too sure.

Louisiana's civil law and the other states are common law.

So how do you know what happens in a civil law state?

Mr. Jibson: Well, again I think goes to the point that you don't presume to know.

That's what Louisiana authorities--

Unknown Speaker: You wouldn't even look.

Mr. Jibson: --to decide.

Unknown Speaker: You wouldn't look.

You wouldn't even if there, even if you went to the Louisiana statute books and you find that there is no Section 11256.

It does not exist, or it's been repealed.

Right?

You would not look at that?

That's none of your business.

That's for the executive.

Right.

Mr. Jibson: I'd have to agree with that.

Yes, Your Honor, because you don't know how far to go in the extradition context.

It's supposed to be a summary proceeding.

Unknown Speaker: Well, despite Michigan v. Doran, counsel, there are a few statements in earlier opinions of this Court that indicate that if it's clear there is no reasonable possibility that the fugitive is guilty that the asylum state court can refuse extradition.

What do you do about that language in the Strauss case and the Drew case?

Mr. Jibson: No reasonable possibility--

Unknown Speaker: xxx valid.

Mr. Jibson: --I'm not familiar--

Unknown Speaker: That language?

Mr. Jibson: --with that particular language in the Drew case.

In fact, I believe in the Drew case it held just the opposite.

There appeared to be a very--

Unknown Speaker: Well, Drew said that extradition is proper, given the reasonable possibility that the fugitive may have committed a crime under the other state.

Mr. Jibson: --Well, that's true.

If the reasonable possibility standard would simply mean that on the face of the documents it appears that it's possible that he is charged with a crime.

If you can determine on the face of those documents that there is no such possibility then that particular factor of those four in Michigan v. Doran is missing.

And therefore, he might be entitled to habeas corpus relief in that particular situation.

Unknown Speaker: As I understand your position now, really the only inquiry that can be made in the asylum state in this proceeding, is whether the extradition papers are facially valid.

Is that right?

Mr. Jibson: Whether the extradition papers are facially valid?

Unknown Speaker: Facially valid, and you can't make any inquiry beyond that?

Now suppose this judge as I understand it had had considerable experience, at least some, with this very case, had he not, previously?

Mr. Jibson: Yes.

Unknown Speaker: The habeas judge had?

And suppose he looks at these papers and on their face they all look very proper, but he knows because he was there that the affidavit is misleading.

Doesn't really tell what actually occurred, as he remembers how it occurred.

Would that be sufficient basis for him to say that to that extent the papers are facially invalid?

Mr. Jibson: No, because then the invalidity does not appear on its face to anyone reading the document.

This particular judge happened to have outside knowledge which was irrelevant to that particular inquiry at the habeas corpus hearing in the asylum state.

And,--

Unknown Speaker: And I suppose it appeared that indeed the extradition request itself had been obtained by fraudulent means?

The asylum state still was helpless to refuse to send--

Mr. Jibson: --The asylum state would not be helpless, Your Honor, but the court in habeas corpus hearing would not have the authority to go into that particular question.

Again, that's where you get into the executive branch.

This is an executive proceeding.

I want to emphasize that, that there in these cases there commonly is communication between two states.

If something looks amiss upon the executive branch examination of these papers, whether it be fraud, a false affidavit, any of those areas that you had been discussing, the communication takes place.

The governor, in fact, the governor in this case took two months to issue his Governor's Warrant of Rendition.

And there was an inquiry made into some of these factors and communication was made with the state of Louisiana.

And that is the source, the check where these types of frauds and inconsistencies ought to be brought up--

Unknown Speaker: --Well, I suppose it's possible though that the governor has no discretion either--

Mr. Jibson: --Well--

Unknown Speaker: --to refuse extradition.

Mr. Jibson: --I'm aware--

Unknown Speaker: I think you're making an assumption that may not be valid.

Mr. Jibson: --I'm aware of the case of Branstead which is before this Court.

Up till now it has at least been presumed that what has grown to be, or become known to be discretion does lie with the governor.

But even if the governor doesn't have discretion to deny the extradition, this communication still takes place and on many occasions the governor can communicate to the demanding state's governor and ask that he withdraw his request after giving him all these facts.

And that's happened.

Unknown Speaker: Mr. Jibson, your new position, or your position, if it isn't a new one, that you just look within the four corners of the instrument, how do you square that with the language, "substantially charged"?

Mr. Jibson: "Substantially charged" I see--

Unknown Speaker: Where is that language by the way?

That's in the Uniform Act, right?

Mr. Jibson: --That's in the Uniform Act.

Unknown Speaker: It's not in the federal statute.

Mr. Jibson: No, but it's been used--

Unknown Speaker: And in it's not in the Constitution?

Mr. Jibson: --No.

Unknown Speaker: So, who made it up?

Mr. Jibson: It's been used by this Court in several cases and I--

Unknown Speaker: Before the Uniform Act was adopted?

Mr. Jibson: --I believe so.

I believe so, Your Honor.

The Uniform Act does use it.

But it doesn't change the constitutional requirement in this way.

Unknown Speaker: I understand.

Well, just tell me what it means then if it doesn't mean that you--

Mr. Jibson: It simply means that the substance of a charge must appear on the papers and I think what that means is, we don't go into possible pleading defects, whether it's charged every element of the offense or any of those things.

If the substance of an offense appears on the papers then that satisfies the requirement.

That's all substantially xxx.

Unknown Speaker: --Or, what you really mean is the substance of an alleged offense?

Mr. Jibson: That's correct.

That's right.

Just the substance.

Unknown Speaker: The governor sometimes by telegram, sometimes by telephone, but many times completely informally changed all of that?

Mr. Jibson: Well, they don't change it, they communicate.

They communicate--

Unknown Speaker: They communicate--

Mr. Jibson: --to make sure that--

Unknown Speaker: --and said this point here doesn't appear to be correct because the facts are thus and so.

And the governor changes it.

That happens every day.

Mr. Jibson: --It does happen, yes.

Free communication between the two executives.

I would like to reserve whatever time left I have, Your Honor, for rebuttal.

Unknown Speaker: Thank you, Mr. Jibson.

We'll hear now from you, Mr. Riordan.

Argument of Dennis P. Riordan

Mr. Riordan: Mr. Chief Justice and may it please the Court:

I'd like to begin by trying to clarify what's been at issue in this case.

I think it's gotten a little muddled because Mr. Jibson came here today looking to hit a single and he's been invited to hit a home run.

And I think his position in response to that has changed.

Before we got here the following things were clear.

One the California decree giving Richard Smolin sole custody of his child in 1981 was valid in '81, it's valid in '84.

The issue has been completely litigated by both parties in California, that's a matter of state law.

He was the legal custodian of his children in 1984.

What was clear before we came here today was that under federal law, that decree has to be respected in Louisiana.

It was clear, one, because that federal law holding by the California Supreme Court was never challenged by California before this Court, which it could have been.

It's also clear because the plain language of 28 U.S.C. 1738(a) makes it absolutely apparent that Louisiana will and must respect the 1981 California decree.

Furthermore, if you look at the case law in Louisiana interpreting 1738(a), and I can cite the Court to two cases, it's absolutely plain that they will hold that California was the only state that could modify the decree, that the '81 decree was valid.

Unknown Speaker: This is Section 1738 of what, the Kidnapping Act?

Mr. Riordan: No, it's the Federal Parental Kidnapping Prevention Act of 1980 xx.

It's a Full Faith and Credit Act which is found in 28 U.S.C., which was passed by Congress to make sure that there could only be one valid custody decree at any time.

And under the terms of that act, the only valid custody decree in 1984, when Richard Smolin picked up his children, was the California decree.

Unknown Speaker: I don't know, I mean, maybe that's right, but really what we're talking about here is whether that issue going to be fought about in California or in Louisiana.

Mr. Riordan: Precisely.

Unknown Speaker: Now why should it be fought about in California?

Mr. Riordan: Well, the reason is we go to the last issue, which is, if he was the sole legal custodian can he have committed kidnapping in Louisiana?

And here's what--

Unknown Speaker: But, if you put it the other way, you say you don't get to that until you decide what issues you can raise in California.

Mr. Riordan: --Right.

And here's where we get to the single rather than the home run.

The single is relying on a hundred years of precedent.

Mr. Jibson says, it is true that for a hundred years you've gotten a common law demur in the asylum state.

That's what it comes down to.

As Justice Scalia said, you get a motion for judgment on the pleadings.

That's existed since this Court's decision in Roberts v. Reilly in 1885.

It's existed because of the use of the word, "substantially" in Roberts and in the Act.

Substantially has never been viewed as surplusage if the act said you determined whether there is a charge in Louisiana and there always is in an extradition case.

There's always a charge that's been lodged.

You determine if there's a charge and that's the end of it.

"Substantially" has always been interpreted to mean it's got to be a substantial charge.

Unknown Speaker: That language isn't in the Act.

It isn't in the Federal Act and it isn't in the Constitution.

Mr. Riordan: Right.

But it is in 100 years of precedent.

It is in this Court's decision in Roberts v. Reilly.

It is in the Uniform Extradition Act.

Unknown Speaker: What the justification for it?

Mr. Riordan: Hum?

Unknown Speaker: What's the justification for the Court having read--

Mr. Riordan: Well, the--

Unknown Speaker: --Wait till I finish my question.

Mr. Riordan: --I apologize.

Unknown Speaker: What's the justification for the Court having read the extradition clause that way in the first place?

Mr. Riordan: I think the justification is that recognized by the concurrence in Michigan v. Doran.

Extradition is worse than an ordinary criminal charge because you have to be processed in one state.

You have to be forcibly transported to another.

The justification is, it's not unfair to a demanding state to file an indictment that passes muster under their own law as a question of law.

And for a hundred years it's worked well to say, you get a demur.

That's all you get.

Unknown Speaker: But how does the Superior Court of California, I mean it seems that's a very wasteful proceeding to have them trying to find about Louisiana law.

Mr. Riordan: Well, I think if you look at Varona, if you look at Lewis, which is cited in our brief in New York case, they say, hey, we are not going to descend into the intricacies of Louisiana law or Alabama law in Lewis.

Unknown Speaker: Is Lewis a case from this Court?

Mr. Riordan: No, Lewis is, almost all of these cases with the exception of Roberts and Michigan v. Doran are, these come up in state courts in extradition proceedings and they are legion.

You make this demur and the courts have said, wait.

If it depends on an interpretation of Louisiana law, go to Louisiana.

We're not the experts in Louisiana law.

If it's a facial, if the judicial gloss on the statute is clear, or the statute is clear by its terms then you do have a right to a demur here.

And no one can suggest under the Louisiana Statute, the sole legal custodian of his children can be guilty of kidnapping.

Louisiana--

Unknown Speaker: How do you know who the sole legal custodian is the defendant just on the face of the papers?

Mr. Riordan: --You know that--

Unknown Speaker: You have to bring in this decree.

Mr. Riordan: --Hum?

Yes.

Unknown Speaker: You have to bring, and that would ordinarily not be a demur.

You would demur to the pleading or the charge--

Mr. Riordan: Right.

Unknown Speaker: --you don't bring in evidence aliunde.

Mr. Riordan: Well, that brings us, let's look at that, as an example let's look at Louisiana.

Let's pose the question this way.

If you were to demur to this charge in Louisiana could you judicially notice the California decree on a demur?

The answer is, yes.

Unknown Speaker: So then the Superior Court in San Bernardino County has to not only know the Louisiana Statute Law, but it has to know what grounds could be raised in a demur in Louisiana.

That's how you go about making this decision?

Mr. Riordan: No, no.

I use that merely as analogy.

What I'm saying is that you've traditionally gotten a common law demur in the asylum state.

Now the--

Unknown Speaker: The common law of what state?

Mr. Riordan: --Hum?

Unknown Speaker: The common law of what state?

Mr. Riordan: I use that as a term of art.

What, for 100 years, what you have gotten in every state of the union, if someone seeks extradition, you've been allowed to say, that doesn't make it on the pleadings.

Unknown Speaker: And then you can bring in evidence outside the pleadings is your theory, I guess.

Mr. Riordan: No.

No.

Unknown Speaker: How do you get this California decree in there?

Mr. Riordan: Well, what I am suggesting is the, I should qualify that.

It depends what you're talking about.

Unknown Speaker: Then you can bring in some evidence outside the pleadings?

Mr. Riordan: Of questions of law.

Matters of law.

In Louisiana as an example, and I use this as an example.

If Richard Smolin went into Louisiana under Section 532 of Louisiana Code of Criminal Procedure, he gets a demur.

A modern equivalent of it.

A motion to dismiss for failure to state a charge.

Louisiana would say and does, don't bring in any evidence here.

Don't bring in evidence of justification or so forth and so on.

But if you want to use judicial notice to bring before us a matter of law, i.e. a California decree, you're free to do that.

Unknown Speaker: What if Louisiana law provided otherwise?

That not only can you not bring in any evidence, but you can't bring any judicial decrees in.

It's just a traditional, very narrow demur.

Mr. Riordan: Right.

I use--

Unknown Speaker: Would that bind the California Court under your view?

Mr. Riordan: --No, I use Louisiana as an example, because it isn't a question of Louisiana criminal procedure, it's a question of what you've been allowed under federal law in the asylum state.

Unknown Speaker: Well, what's the source of federal law?

Mr. Riordan: This Court's decision in Roberts v. Reilly.

Unknown Speaker: So, you think this Courts decision, Roberts, laid down a whole guideline to pleading, you know, what you could raise in this thing and that sort of thing?

Mr. Riordan: We cite probably a dozen cases in our brief.

We could cite 100 that say for the last 100 years the fourth exception in Michigan v. Doran, was listed second.

That is you check to see whether there is the existence of a charge, has been interpreted to mean you check to see whether there's a substantial charge?

That is, a charge that would withstand a demur?

Now, this Court could choose, of course, to reverse 100 years of precedent.

Unknown Speaker: Well, yeah, the only case we would be narrowing would be Roberts, wouldn't it?

Mr. Riordan: Well, no.

You'd be over-ruling the decisions of the supreme courts of probably--

Unknown Speaker: But, we don't overrule state supreme court decision.

We may disapprove.

Mr. Riordan: --I stand clarified, corrected.

Yes, what you would be doing is saying that the word "substantial" in Roberts and the word "substantial" in the Uniform Extradition Act has always been interpreted to mean that you get a demur.

But we're now holding that all it means is that you get to check and see whether there's been an indictment filed.

Unknown Speaker: Well, in Michigan the claim was the Michigan Court said, "substantially charged" means that we look at the facts to see it there was probable cause.

And we said, no that isn't what "substantially" means at all.

Mr. Riordan: Right.

Right.

But this Court never dealt with--

Unknown Speaker: xxx.

Mr. Riordan: --This Court in Michigan never dealt with the exception that we're talking about here.

Michigan didn't involve fugitivity and it didn't involve the right to a demur.

This Court referred to the fact that, the interesting thing about Michigan v. Doran is it didn't use the word "substantial".

And since then there are been, an argument has been made that by pulling out the word "substantial", this Court overruled the right to the equivalent of a common law demur in asylum state.

If it did that would be a very strange case to do it in because it didn't involve the scope of this.

And I use demur again as a term of art, this judgment on the pleading.

But if you look at Roberts, if you look at all of the state cases since then you get a challenge to the legal sufficiency of the charge even though it's in the asylum state.

And the reasoning has been--

Unknown Speaker: Mr. Riordan, are you sure that the existence of a custody decree is a matter of law?

Let's say parentage, is parentage a matter of law, whether I am the father or not?

Mr. Riordan: --Well, it is if two parties have come together, litigated an issue to the highest court in the state and settled it in an opinion of which a court can take judicial notice.

There's no more argument.

Unknown Speaker: But let's assume a particular indictment would be absolutely invalid if I was the father, and valid if I wasn't.

Would my parentage, my natural parentage would obviously be a question of fact not of law, right?

But, what if I had adopted the child and there's an adoption decree.

Is that converted from a question of fact in to a question of law?

It would take notice of an adoption decree?

Mr. Riordan: If, as in this case, it's res judicata, it's been fully litigated and the only court that can litigate the issue--

Unknown Speaker: Oh, I see.

Mr. Riordan: --and is no longer subject to challenge.

No one can challenge the validity of Richard's '81 decree.

It's happened.

It's a matter of California law--

Unknown Speaker: I see why you're going--

Mr. Riordan: --initially and it's been fully litigated.

And all California did in doing that was look at law.

It didn't look at fact.

Now, I will be the first to concede that if this Court decides to overrule 100 years of tradition and say you don't get a common law demur, you don't get the equivalent of a motion on the pleadings, we lose.

Let me make that concession.

If we are not allowed to challenge in the way you have been for 100 years, the Louisiana charge in the sense of getting a demur or judgment on the pleadings, we lose.

Because there is a charge in Louisiana.

Unknown Speaker: --Would you lose if there was any other judge but this judge?

Mr. Riordan: But the--

Unknown Speaker: The judge that had personal knowledge.

If you had a judge that didn't have personal knowledge would you lose?

Mr. Riordan: --No, we would win.

If we get a judgment on the pleadings conversely, we win.

And we win before any judge--

Unknown Speaker: Would you get the judgment on the pleadings before a judge that didn't know the facts?

Mr. Riordan: --Yes.

Yes, because--

Unknown Speaker: Well, how would he find the facts?

Mr. Riordan: --He did know the facts, but he didn't say I know the facts.

Unknown Speaker: The facts.

Mr. Riordan: Right.

We would still win because the judge who didn't know the facts could take judicial notice of the California decrees which were final and binding.

So the happenstance existed that this judge knew the facts of the case.

But,--

Unknown Speaker: I have trouble with happenstance, frankly.

Mr. Riordan: --That this particular judge--

Unknown Speaker: Yes.

Mr. Riordan: --Let me make one thing clear, Your Honor.

This was not the judge who issued the child custody decree.

This was not the judge who originally gave custody to Richard.

There is no question that there was an collusion here between a judge originally giving custody and then dealing with a habeas corpus matter.

He was familiar with the family law matter because he was the judge that later heard the challenge to the '81 decree.

Unknown Speaker: Mr. Riordan, can you give us any guidance on how clear the law has to be?

I mean, we went around and around on that with Mr. Jibson.

Mr. Riordan: Right.

Unknown Speaker: And I guess we eventually ended up, it doesn't matter how clear it is.

Now you say that we do take law into account.

Mr. Riordan: Well, the--

Unknown Speaker: You know, you can have some very refined questions of law that go to whether a motion for judgment on the pleading should be granted or not.

Mr. Riordan: --I agree, and I think if you look at a decision like Lewis, where it was a New York Court act and they said, caution is called for in this situation.

We are not he authorities on Louisiana, in that case, Alabama law.

You've got to make out a very clear case.

Unknown Speaker: So, the test is not simply whether it's an issue of law?

The test is what?

Mr. Riordan: No.

The courts have demanded that the resolution of the issue of foreign law be crystal clear.

In this case, there might have been quibbling about the validity of the '81 California decree.

That's been settled in a California court.

We could have an interesting discussion.

Perhaps someone once has a complex question about PKPA, but that's a federal law question on which this court, and Louisiana can give this Court no guidance at all.

This is the Court that eventually decides exactly what PKPA means.

But in terms of the Louisiana law question here, if anyone, I will also concede we should lose the case if anyone can come up with an interpretation of the Louisiana statute under which the sole legal custodian of his children could commit kidnapping.

It would be like saying that Charles Lindburgh had he gotten the kid back from Bruno Hauptman could have been prosecuted under this statute.

It's just not possible.

Unknown Speaker: Mr. Riordan, xxx his father.

Mr. Riordan: Hum?

Unknown Speaker: That assumes that the sole legal custodian is his father.

Mr. Riordan: No, I don't want to assume that.

I'm willing to demonstrate it as a proposition xxx the law.

Unknown Speaker: Well, I know, but who decides that?

Mr. Riordan: Hum?

Unknown Speaker: Who is entitled to decide that?

Mr. Riordan: Well, we can't make an argument that Louisiana is better able to decide, in fact, California--

Unknown Speaker: I didn't say it that it would be better, I wondered who was entitled to decide it under the extradition clause?

Mr. Riordan: --Our interpretation of the extradition clause is that if it's simply a matter of applying federal law then California as the asylum state is entitled to apply it.

And I would suggest, let me point out one thing.

Once this case gets to Louisiana, federal law--

Unknown Speaker: May I interrupt you just one minute?

I tried to interrupt you before.

I'd like to get back to a fairly simple-minded question.

Is it your position that if one in California is found to be the custodian of a particular child, that he then may by self-help, wherever he may find the child, whatever the child's condition, he may kidnap the child?

Mr. Riordan: --If--

Unknown Speaker: Is that your position?

Mr. Riordan: --No.

Unknown Speaker: Well, what is it then?

Mr. Riordan: A state could pass a statute that says it you are the sole legal custodian and your child has been taken by an interloper or by a parent who has no legal right, they could say we'll pass a statute that requires you, that makes it a civil violation or criminal violation to get the children yourself.

Unknown Speaker: Well, let's focus on this case.

Mr. Riordan: Right.

Louisiana--

Unknown Speaker: Yes, here you have a California decree that we assume is valid and instead of having it enforced by the customary means of enforcing judicial decrees the father who won in California decides he's going to enforce it himself.

So, he goes to Louisiana and he picks the child up at a bus stop.

Mr. Riordan: --Uh-huh.

Unknown Speaker: Suppose the child had been home in bed, or in the back yard?

So you don't get into a Fourth Amendment situation--

Mr. Riordan: Uh-huh.

Unknown Speaker: --perhaps.

Or suppose a child had been in a hospital?

Suppose the child had been in New York?

Mr. Riordan: Uh-huh.

Unknown Speaker: He could go anywhere he wants and enforce the California judgment himself.

Mr. Riordan: No.

He might commit burglary if he did that.

He might--

Unknown Speaker: He committed a law into Louisiana.

Mr. Riordan: --No, he didn't, whatever--

Unknown Speaker: He committed a violation under Louisiana law.

Mr. Riordan: --No, no.

My position is just this.

That can be very unwise to do that.

It could even be illegal to do it.

Unknown Speaker: He may lawfully do it.

Mr. Riordan: He can lawfully do it without violating Louisiana kidnapping statute.

Because the Louisiana kidnapping statute says that a legal custodian can't commit kidnapping.

They could say he committed trespass.

Let's say he took a buzz saw and sawed his ex-wife's car in half.

He might have committed four felonies by doing that, but he won't have committed kidnapping which is the only charge--

Unknown Speaker: Well, the lawyer for California here today conceded when I asked him that question, that it does not violate Louisiana law if Mr. Smolin had lawful custody for him to take him.

That was the first concession he made.

Isn't that right?

Mr. Riordan: --There simply--

Unknown Speaker: Today.

Mr. Riordan: --I don't think there's any question about that and I would just refer you to one thing as well which is a case called Snyder v. Snyder, 474 South 2nd, 1374, it's a Court of Appeals decision of Louisiana in 1985.

It involved a situation where a father in Utah got a valid modification decree, came in and took the children forcibly from the mother.

The Louisiana court in a civil action said, one, the Utah decree was valid under PKPA and we have to follow PKPA.

Two, there's not a hint in that opinion that there was anything therefore illegal under Louisiana law by him taking the children once he had the valid decree.

I will be the first to say that if Louisiana wanted to make sure that you go into court to execute on these, it could pass a statute.

Perhaps it would make it a misdemeanor to take children even if you are the legal custodian, but it's clear that under it's kidnapping statute you can't violate the kidnapping statute if you're the sole legal custodian, which Mr. Smolin is.

And that is a question of federal law that is better resolved in California and the reason for that is, once this case goes to Louisiana, Louisiana is barred from PKPA by 1738(a), from questioning the California decree at all.

If there had been any defect in the California decree, and there wasn't, the only place that it could have been raised collaterally was in California.

Unknown Speaker: Mr. Riordan, let me ask, if you are a law enforcement official who gets somebody from another state, you initiate the process of extradition, on an indictment that is so patently invalid that it would be subject to a demur as you put it, would you be liable for any civil damages for false arrest or imprisonment, or something don't you think?

Don't you think it's pretty risky business?

Mr. Riordan: I've got enough trouble with the questions that you've thrown at me about that.

[Laughter]

Unknown Speaker: No, I understand.

Well, I'm trying to think--

Mr. Riordan: I think it's clear that any such officer under the decisions of this Court would have a good faith defense that would render him immune from any liability.

Unknown Speaker: --A good faith defense.

Mr. Riordan: I don't know the answer to that.

It's in part, a question of federal law.

Certainly under federal law I think there would be immunity from any claim of violation of a person's right if he acted on a decree in that context.

Unknown Speaker: Is the fact that this particular judge was personally familiar with this case, is that fact at all relevant to our decision of the case.

Mr. Riordan: No.

No.

Unknown Speaker: Why not?

Mr. Riordan: Because he did not say, I'm familiar with the facts and I'm going to rely on my personal knowledge.

He said I'm going to rely on the device of judicial notice, which is the device that would have been available to any judge.

And he did not do other than take judicial notice--

Unknown Speaker: Judicial notice of what?

Mr. Riordan: --Of the decrees in the civil case which established that Richard Smolin was the sole legal--

Unknown Speaker: And these were files, were they, of the Superior Court?

Mr. Riordan: --They were files of the San Bernardino Superior Court.

Might I point out this?

What is now before you is the judgment of the California Supreme Court.

Prior to that decision, the entire matter had been fully litigated up to a published, an unpublished, but a written opinion of the Court of Appeal which had become final which before you in the Joint Appendix.

Unknown Speaker: Well, hadn't the custody decree been appealed?

And hadn't the former spouse of Mr. Smolin appeared and litigated it in California?

Mr. Riordan: She had, I mean, one of the things that really put a judge on a tough spot if we were to adopt the rule that there couldn't be judicial notice.

She had appeared before him and said, I want to contest his '81 decree.

Let's have a hearing on it.

She had a hearing.

She got a ruling.

She appealed that ruling and eventually got partial relief on appeal.

The court said the '81 decree was valid, but you're now free to obtain joint custody today.

Yet then, that same judge looks at an affidavit that's sworn out after all of that occurs that says he had no decree.

He had no, I should correct that.

He had no legal authority at the time he took the children.

That's pretty tough stuff for a judge to say, I've litigated this matter--

Unknown Speaker: But, Mr. Riordan, why if it's so clear is Louisiana insisting on this?

It's just a little hard to understand, isn't it?

Mr. Riordan: --Well, Your Honor, I was here on Monday and I saw in attorney get in trouble by making assertions outside the record.

I think I can answer that question, but I can't do it by staying within the four corners of this particular--

Unknown Speaker: All right then don't.

[Laughter]

Is it your position that we are bound to take the Louisiana judgment and give it full faith and credit and everything.

I mean the California one.

Mr. Riordan: --Right.

Unknown Speaker: But ignore the Louisiana one.

Both from state courts.

Mr. Riordan: No, there is no Louisiana judgment.

The two judgments were--

Unknown Speaker: What's this man--

Mr. Riordan: --Texas.

Let me clarify this.

Unknown Speaker: --xxx Excuse me, was it Texas?

Well, why is Texas?

What's wrong with Texas?

Mr. Riordan: There's nothing wrong with it at all.

You could get a complicated conflicting decree case but this isn't it.

What happened is that the original decree went to the wife.

She got sole custody.

Unknown Speaker: Right.

Mr. Riordan: Fine.

It was valid when it was issued.

She went to get Texas and got that recognized, full faith and credit.

The Texas judgment merely recognized the rights in Texas that she had in California.

There is no conflict.

It was consonant with the California decree and recognized only such rights as existed in California.

And under PKPA that's all it could do.

So, therefore, when the California decree comes down and give him sole custody, modifying the original decree, it modified the rights that he had, she had in California and the rights that she had in Texas, cause it simply modified xxx.

Unknown Speaker: The district attorney who acted in this case in Louisiana thought that the California decree had been obtained by misrepresentation and fraud.

Mr. Riordan: Well--

Unknown Speaker: That's what the record shows, isn't it?

Mr. Riordan: --I think its--

Unknown Speaker: That's what he thought, that maybe totally false but--

Mr. Riordan: --There's a statement somewhere to that effect, but I think it's not fair of us to demand of our district attorney's that they understand anything about child custody law.

And frequently, they don't.

I mean, the fact of the matter is that the California decree, it's been litigated fully on, if there were any fraud, any misrepresentation, any unconstitutionality in it, it could have been taken to this Court itself.

It's full and final.

It's over.

That's settled.

Unknown Speaker: --Mr. Riordan, did your client take the, did he make an appearance in the Texas court?

Mr. Riordan: No.

Unknown Speaker: He didn't object to it in any way?

He couldn't have objected officially if he didn't make an appearance, could he?

Mr. Riordan: Right.

Unknown Speaker: Well, why didn't the Texas court find him?

Mr. Riordan: Well, the Texas judgment is a full, we don't, the Texas judgment is fine.

It gives full faith and credit--

Unknown Speaker: What has happened so far as custody was concerned following the Texas judgment?

Mr. Riordan: --The Texas judgment gave full faith and credit to the original judgment.

And all we are saying about that is, you can accept it as valid at the time it's issued.

It can, it did purport to give no rights other than those in California.

And therefore, when the rights in California were modified, that's the whole point of PKPA.

Another state can recognize your rights anywhere else.

But, it can't give you new rights.

It can't give you independent rights.

The only state that can modify the original rights is the state of the original decree.

So, when California modified to give him custody, it modified the original California decree and the original Texas decree.

The Texas decree has no independent existence.

And this, it may take a little, have taken me a somewhat secuitcus route to explain it, but it's not a complicated question and it's a federal law question that is better litigated in California than it is in Louisiana.

I would suggest this to you, that the whole point of PKPA was to make sure that adjudication stay in the original state.

Here we have a situation where extradition is really being used to shift the focus away from a state that under federal law should be the locus of this litigation, and that is California.

Let me, perhaps there by--

Unknown Speaker: Extradition didn't shift it, the kidnapping did.

Mr. Riordan: --No, no.

The kidnapping in--

Unknown Speaker: You wouldn't of had the extradition.

Mr. Riordan: --The kidnapping--

Unknown Speaker: Right?

Mr. Riordan: --The kidnapping though, Your Honor, Justice Marshall, brought this case back to the locus where it always supposed to be.

The original decree state.

Let me just add this.

And these are sort of mundane considerations for this elevated atmosphere.

One thing we know is that this is not a kidnapping case.

Richard Smolin in can never be committed of kidnapping.

That may be resolved in Louisiana rather than California, depending on this Court's judgment.

But it's just the case.

I mean, it's not a criminal case.

It never should have been a criminal case.

Unknown Speaker: Mr. Riordan, you say that.

Does your opponent agree to that?

Mr. Riordan: My opponent is not going to dispute it.

He's not going to dispute that this is a valid California decree and he's not going to dispute, in their brief they say, and they have to, that the California decree here is not one they want to take issue with.

But it's going to be a civil case.

It's going to be a civil case.

It should be a civil case.

And these two individuals for whom a lot of blame can be attributed to both of them, this mother and father, are going to have to work out an arrangement so they both can have their children again.

They're going to have to finally act sensibly and settle this.

And it will be settled, and it can be settled as a civil case.

And the sooner that it stops being a criminal case, an auspicious criminal case, the sooner I think these children are going to for the first time in ten years, enjoy the love that they should have from both of their parents.

And I'd ask this Court to put an end to it.

To declare that the case, the extradition is improper because the charge is--

Unknown Speaker: Well, if the children, if the case had gone back to Louisiana right away, it probably would have been dismissed long ago, as you say.

Mr. Riordan: --I would like to believe that.

I would like to believe that.

Unknown Speaker: Well, you say it's so clear that nobody could possibly dispute it.

Mr. Riordan: Right.

But the human cost for Richard Smolin of going to Louisiana in 1984, after he had his children for the first time in six years, would have been very substantial.

And I submit he did nothing wrong by challenging the action in the Courts of Louisiana.

Unknown Speaker: Thank you, Mr. Riordan.

Mr. Riordan: Thank you.

Unknown Speaker: Mr. Jibson, you have three minutes remaining.

Rebuttal of J. Robert Jibson

Mr. Jibson: I'd just like to make a couple of points.

First of all, we do deem this a criminal case.

It is a criminal case.

The charges are still pending in the state of Louisiana.

What brought this into the criminal justice system was Mr. Smolin's exercise of self-help, which is in itself, one of the things that the Parental Kidnapping Prevention Act, by its very title is designed to prevent.

And, I don't want to get into the, to make this a custody case but this Court does not have to decide the question of who's entitled to custody here.

Suffice it to say as it was stated earlier, the Louisiana prosecutor does dispute this.

And, I've got some knowledge about him, but I'm not going to go outside the record either to tell you his reasons for that.

But the point is, what's being attempted here is simply to come in through the back door with what you cannot come in through the front door with and that is a defense to this charge in Louisiana.

This analogy to a judgment on the pleadings, I think, is inappropriate because that by definition is restricted to the pleadings and here they had to go outside the pleadings which in this case, are the extradition documents to bring in some extraneous evidence to show a defense.

And, we're not to inquire into the prosecutor's motives in the state of Louisiana.

Communication has been had with authorities in both states.

They are anxious to go forward with this case and if, in fact, there is an air tight defense for Mr. Smolin, then he is to bring that in the state of Louisiana where these charges are pending.

Thank you very much.

Chief Justice Rehnquist: Thank you, Mr. Jibson.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Puerto Rico v. Branstad - Oral Argument

Fri, 09 Jan 2009 14:48:30 +0000

Case:

Puerto Rico v. Branstad

Media File:

85-2116_19870330-argument.mp3

Related Transcript:

1986_85_2116_argument.xml

Transcript:

ORAL ARGUMENT OF LINO J. SALDANA, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Rehnquist: We will hear arguments first this morning in No. 85-2116, Puerto Rico again Branstad.

Mr. Saldana, you may proceed whenever you are ready.

Mr. Saldana: Mr. Chief Justice, and may it please the Court:

Petitioner in this case requested extradition of Mr. Ronald Calder, who was charged with murder and attempted murder, and is a fugitive from the courts of justice in the courts of Puerto Rico, and had fled to Iowa.

The Governor of Iowa denied extradition.

The commonwealth filed a complaint in the District Court for the Southern District of Iowa seeking a writ of mandamus directing the Governor to extradite Calder.

The writ was refused.

The Court of Appeals affirmed.

The case is here on certiorari.

The issue is whether or not the Federal courts have power to order the governor of a state to extradite a fugitive from justice in the courts of Puerto Rico who has been accused of murder and attempted murder.

There is no dispute in this case that the extradition request made by Puerto Rico fully complies with all statutory and constitutional requirements.

There is no dispute, either, that the duty of the Governor of Iowa to extradite Mr. Calder is an absolute duty, both mandatory and ministerial, under the Constitution and the statute.

All that is at issue here is whether the court, the Federal court, may command the governor to obey that duty, or whether the governor may violate it with impunity.

Now the facts are as follows.

Mr. Ronald Calder on... in 1981 drover his car into a married couple in a parking lot of a grocery store in Puerto Rico.

The husband was injured but survived.

His pregnant wife was killed, as well as her unborn child.

The justice... a judge, I'm sorry, of the Superior Court of Puerto Rico, after a preliminary hearing, found probable cause to charge Calder with murder and attempted murder.

This was done after a hearing, as I said, in which the judge heard testimony from sworn witnesses, and in which Calder was represented by counsel.

The witnesses, the eyewitnesses, told the judge that Calder had deliberately run his car over... drove his car into the couple, attempted to run down the couple with his car, and that after the wife was down, he repeatedly run over the body, her body, with his car.

Mr. Calder was freed on bail after the District Attorney filed informations against him for these two alleged crimes, and he failed to appear at two successive hearings in the criminal case.

And the court... another judge in the district... in the Superior Court ordered him to be arrested, issued a warrant of arrest, after declaring him a fugitive.

He was found in Iowa, his native state, and there a request was made to the Governor of Iowa that Calder be extradited.

The request of the Governor of Puerto Rico was... fully complied with all the requirements, both statutory and constitutional.

In spite of that, an extradition hearing was held.

Unidentified Justice: Iowa was his home, was it not?

Mr. Saldana: Iowa was his home, yes, sir.

Unidentified Justice: Do you know why so low a bond was imposed under a murder charge?

Mr. Saldana: In Puerto Rico, you mean, sir?

Unidentified Justice: Yes, in Puerto Rico.

Mr. Saldana: Well, he was first charged with manslaughter, and a small bond was requested from him.

Apparently, what the court felt was that there was no danger that he would not appear.

And he was working in Puerto Rico as an air controller.

And only $5,000 bond was required from him.

That's about all the explanation I can give Your Honor to that.

Unidentified Justice: I suppose there isn't any explanation.

But it strikes me as a low bond on a murder charge.

Mr. Saldana: Yes, it is.

The Governor of Iowa in the... on the basis of the extradition hearing, denied the request for extradition.

At the hearing, evidence was admitted to... by the declarations and testimony of Calder, of Calder's companion at the scene of the crime, of the alleged crimes, and of Calder's attorneys, to the fact that the Puerto Rico courts were unable to administer properly justice in this case, in Calder's case.

Calder and his other two witnesses stated that there was a prejudice against white American men like Calder, and that, under those circumstances, the trial--

They also brought hearsay evidence to the effect that witnesses had been bought... bought off in Puerto Rico in some cases, and they attacked in that way the integrity and the quality of the justice of... that is afforded by the Puerto Rico courts.

Now, the Governor of Iowa tried to intercede on Calder's behalf in some plea bargaining between Calder's attorneys and the Puerto Rico prosecutors.

They were bargaining on whether to accept a plea of guilty from Calder on a lesser charge, and also, whether a sentence of probation would be imposed.

The prosecutors conditioned all plea bargaining upon Calder's voluntary return to Puerto Rico.

And the governor then tried to intercede and had some talks with Governor Romero of Puerto Rico.

These talks failed, and thereon, the Governor of Iowa denied extradition.

The Commonwealth filed a complaint in the District Court seeking a writ of mandamus against the Governor of Iowa to order him to extradite Calder.

The court refused to issue the writ.

It held that it was bound by the decision of this Court in Dennison... in Kentucky v. Dennison; that the Federal court had now power to order the state governor to extradite Calder.

The United States Court of Appeals for the Eighth Circuit affirmed that judgment reluctantly, stating that the reasoning and the underpinnings of the Dennison case had been undermined, had been eroded to such a degree that the court... the only court empowered to do so, the Supreme Court, should reconsider it.

Now--

Unidentified Justice: You agree, Mr. Saldana, don't you, that we would have to overrule Kentucky against Dennison to rule in your favor here?

Mr. Saldana: --Yes, sir.

Now, the--

Unidentified Justice: Mr. Saldana, why is that... why is that so?

That is so only if you insist that Puerto Rico is a state within the meaning of the provision here.

You have a statute that purports to require extradition to either a state, a district or a territory.

Might now the power of the United States be different insofar as its ability is concerned to require a state to extradite to a territory, than it is with regard to its power to require a state to extradite to another state?

Mr. Saldana: --Well, the power of Congress to enact the extradition act is based on the implied power of Congress to implement the extradition clause.

And the--

Unidentified Justice: Well, maybe this statute, insofar as it might apply to Puerto Rico, is not an implementation of the extradition clause of the Constitution but is an implementation of Congress' power to govern territories.

Mr. Saldana: --Well, that power cannot justify the Congress ordering a state to extradite a fugitive to a territory.

It would operate for Congress to direct a territory to extradite to a state, or to extradite to another territory.

But the power of Congress to implement the clause as it did, ordering a state to extradite a fugitive to a territory, must rest on something other than the territorial power.

It rests on the implied power of Congress, under the very... under the extradition clause itself, to implement that statute.

And for... history reveals that the extradition statute was approved in 1793 a few years after the Constitution was ratified; and the people and the Congressmen who were there were, many of them were members of the Convention, lawyers and framers of the Constitution, who had at least drafted the Constitution and participated in the process of ratification.

Now it has long been considered... it is really beyond question... that this contemporary interpretation of Congress, of the meaning of the extradition clause, is valid, and that it shows that Congress, in the extradition... that the extradition clause of the Constitution goes beyond states, beyond the 13 states of the Union; that it includes other entities like territories, like the Commonwealth, like the District of Columbia.

Now we may not have... it may not be necessary to decide that question, because the statute, as Justice Scalia points out, imposes the duty of extradition upon the Iowa State Governor.

There is no problem, no doubt, that it is a valid statute.

And there is no doubt that it applies to Puerto Rico.

Before 1952, this Court so expressly held.

And after 1952, it is also clear that the extradition act was undisturbed in its application to Puerto Rico.

Unidentified Justice: But that statute was in effect at the time Kentucky against Dennison was decided, wasn't it?

Mr. Saldana: I'm sorry, I did not hear you.

Unidentified Justice: I thought you were referring to the statute of 1793.

Mr. Saldana: Yes.

Unidentified Justice: And that statute was in effect at the time that Kentucky v. Dennison was decided.

Mr. Saldana: That's right, sir.

And the Dennison decision interprets both the Constitution and the statute.

And it did interpret both together because the statute and the Constitution are coterminous.

They speak in the same language.

They use the same words.

They must be read in pari materia.

And it is impossible for this Court to decide the statutory issue without reaching the Constitutional issue.

So both... they are inseparable.

Unidentified Justice: Mr. Saldana, not that it matters, but what position do you hold in the government of Puerto Rico?

Mr. Saldana: I am special counsel in this case.

Unidentified Justice: I mean, I notice on the brief that everybody has a title but you.

Mr. Saldana: That's right.

Unidentified Justice: And I was just wondering, you're authorized to speak for the government?

Mr. Saldana: Yes.

Unidentified Justice: Thank you.

Mr. Saldana: Well, we feel that no case, or few cases at least, would better demonstrate that Dennison should be overruled that this, the present one.

First, the Dennison decision leaves the governor free to violate with impunity his duty to extradite, the duty that is imposed both by the Constitution and by the statute.

Ronald Calder has been able to find precisely what the extradition clause and the extradition statute intended to prevent.

He has found an asylum, a free asylum, in Iowa.

And he has been able to avoid altogether responding for his alleged crimes.

He has obtained what really amounts to an immunity in Iowa.

That violates the concern of the extradition clause, the concern that was at the core of the extradition clause, to... which is the protection of law and order within the respective borders of each state and defeats and frustrates the administration and enforcement of criminal law in every state.

The result, of course, is unsound, and is contrary to the express mandate of the Constitution and of the statute.

Second, the Dennison rule, as seen in this case, the result it has in this case, is that it frustrates and defeats, also, the concern of the extradition clause for comity and respect between states.

This case shows how the Dennison rule invites precisely the kind of friction, the kind of disagreements and retaliation that the clause, the extradition clause, was designed and intended to prevent.

Unidentified Justice: Well, Mr. Saldana, the State of Iowa in its brief suggests, as a last argument, that Puerto Rico isn't entitled to use the clause or the statute at all, because you aren't a state; that you're a territory.

Mr. Saldana: Well, Your Honor, that argument really is not in point.

Because, as I explained awhile ago, Puerto Rico is invoking both the Constitution and the statute, and it does so because of the fact that it believes that the Constitution of itself, on its own power, extends to Puerto Rico, the constitutional clause involved here, the extradition clause; as do the other clauses, the privileges and immunities, and the full faith and credit clauses.

Because those clauses are designed to create a national unity within the federation, the American federation.

And there is a need to extend those provisions to a state like Puerto Rico that is so near--

Unidentified Justice: You say it's... Puerto Rico is a state?

Mr. Saldana: --Well, it's a state not in the sense that it is a state of the Union, but it is a state that is joined with the United States by a compact, and has the degree, the same degree, a similar degree, of autonomy and independence as the other states of the union.

Unidentified Justice: Do you think just any territory of the United States could employ the extradition clause?

Mr. Saldana: I think so, sir, I think so, yes.

I think so because--

Unidentified Justice: Even though that isn't what the clause says.

Mr. Saldana: --The clause refers only to states of the union.

But for functional purposes, and for historical reasons, the clause should be read to extend, of itself, to states, to other entities like the Commonwealth and the territories.

However, it did not--

Unidentified Justice: Maybe it should be written that way, but why should it be read that way if it wasn't written that way?

Mr. Saldana: --Well, it wasn't written that way, but it was interpreted by the members... by Congress at an early date when the object and scope of the clause was common knowledge.

And the Congressmen who dealt with the statute, the 1793 statute, which has not been substantially changed until today, interpreted that clause to mean that it extends to the territories.

At that time there were two territories, the territory northwest of the river Ohio and--

Unidentified Justice: Well, it didn't need to interpret that clause to pass that statute.

But it did; it said any state or territory, the extradition statute does.

And so you may claim protection of the statute, may you not?

Mr. Saldana: --Yes.

And once the statute applies, as we claim it does, then as I stated a second ago, the constitutional issue raised in the Dennison case as to the interpretation of the clause, of the extradition clause, must also be reached by this Court, because the statute and the Constitution--

Unidentified Justice: If we... if we interpreted the statute differently than the Dennison case did, we wouldn't have to reach any constitutional issue at all.

Mr. Saldana: --But the statute, Mr. Justice White, the statute repeats the words of the Constitution.

Unidentified Justice: Except it's got the word "territory" in it.

Mr. Saldana: Yes, but we are concerned here with not only whether territories are covered but what kind of duty is imposed on the state governor to extradite.

Unidentified Justice: Well, isn't there some indication in the Dennison case that the court actually thought the statute imposed a duty, but only a moral duty.

Mr. Saldana: That's right.

Unidentified Justice: And that it wasn't an enforceable duty, and wasn't intended to be enforceable.

Isn't that what the Court said?

Mr. Saldana: That is right.

Unidentified Justice: So that's a construction of a Federal statute.

Mr. Saldana: The Court interpreted both the Constitution and the statute to mean that.

And as a matter of fact Chief Justice Taney said, the Constitution leaves the performance of the duty to the fidelity of the governor to the Constitution of the United States.

It is not a legal duty; it's a moral duty.

And the statute necessarily does so, necessarily leaves the duty as one which is unenforceable, which is a moral duty.

So it is impossible, I respectfully submit, to decide this case on the basis of a statutory interpretation, without reaching the Constitutional question involved.

Unidentified Justice: That may be, but not because Puerto Rico is a state, but because in order to interpret the statute as being mandatory, since it applies to both states and territories, you would have to contravene Kentucky v. Dennison, whether or not Puerto Rico is a state.

I mean, I'm quite... it's an uphill battle to convince me that when the Constitution refers to states, and says states, and elsewhere it refers to territory, it makes no difference between the two.

So it seems to me that if Puerto Rico comes under this statute, it comes under it as a territory, not as a state, which--

Mr. Saldana: Well, that's an alternative ground for reaching the Constitutional question.

But the Constitutional issue--

Unidentified Justice: --I'm not anxious reach the constitutional question.

I mean, I would as soon avoid it.

But it may well be that you can't read the statute the way you want to read it, or you couldn't read it to be mandatory for territories and permissive for states, because it doesn't purport to distinguish between the two.

But I hope you will tell me we don't have to reach it because Puerto Rico is a state, because I don't think you will persuade me that Puerto Rico is a state.

Mr. Saldana: --Well, if you interpret the Constitution narrowly and literally, with all due respect, you're right, Justice Scalia.

If you interpret the Constitution functionally and from an historical point of view, you may not be right as to that point.

But again, I say it's unnecessary to decide that issue, because there is the alternative ground whether Puerto Rico is a state today or a territory, it is covered by the statute.

And the case can be decided under the statute.

But in deciding the statutory issue, this Court will have to reach the constitutional issue.

Unidentified Justice: Why?

Why?

Mr. Saldana: Because they, both the statute and the Constitution, read... must be interpreted in a--

Unidentified Justice: Well, what if there were no extradition clause at all?

Do you think Congress could have passed the extradition statute?

Mr. Saldana: --I don't think so.

Unidentified Justice: But Mr. Saldana, is it not true that even if we read the statute in your favor and say the constitutional clause doesn't reach it, there remains the constitutional question decided in Dennison, whether a Federal court has the constitutional power to order a governor to perform this duty.

That's a constitution question, isn't it?

Mr. Saldana: That is right.

Unidentified Justice: And if you win on the statute, we must then reach that constitutional question.

Mr. Saldana: That is right.

Chief Justice Rehnquist: Thank you, Mr. Saldana.

We'll hear now from you, Mr. Appel.

ORAL ARGUMENT OF BRENT R. APPEL, ESQ., ON BEHALF OF THE RESPONDENT

Mr. Appel: Mr. Chief Justice, and may it please the Court:

I think I can best assist the Court today with a three-part presentation about the extradition clause.

First, I would like to engage in a brief survey of its history, with special emphasis on the constitutional foliage that has grown up in the extradition area in the absence of judicial intervention.

Second, I'd like to take a look at the court as an institution, and ask ourselves question: Would it be preferable for this Court to intervene and make extradition decisions rather than the governors of the state as a matter of constitutional policy?

And then finally, I'd like to take a quick survey of the facts in this case, in which the State of Iowa has a fundamentally different presentation to make than does Puerto Rico.

First, let's look briefly at the history--

Unidentified Justice: I think that's probably how Marbury v. Madison was argued, too.

Mr. Appel: --I read Marbury--

Unidentified Justice: It lost there.

Mr. Appel: --I read Marbury yesterday.

And we'll get back to it, because I think it has some relevance, Justice Scalia.

The history of the--

Unidentified Justice: You spent most of the day reading it?

Mr. Appel: --Only a part of it, Justice.

The history of the extradition clause is, first, that the courts have consistently stayed out of its interpretation; not simply the Federal courts, but the courts of all 50 states.

And there's some 8,000 state-years of accumulative experience have stayed out, and have not intervened under state constitutions which deal with extradition as well.

And as a result, in the absence of this judicial intervention, an executive common law tradition of interpreting the extradition clause of the Constitution and the state constitutions has developed.

And what that executive common law tradition is basically is that the... the extradition clause in the Constitution does establish a general principle to be applied when states request that a fugitive be delivered up.

And the language is, of course "shall".

Just as the First Amendment says Congress shall pass no law.

And the full faith and credit clause says, full faith and credit shall be given.

And that has been recognized by all the governors.

And extradition occurs on a routine basis, day-in and day-out.

The question in this case is what happens at the edges of the doctrine.

Every constitutional bone has cartilage on the edge.

And that's where we are in this case.

We're at the very edges of the doctrine.

And the question is, who decides when to extradite and when not to extradite, and under what conditions?

And the governors have come up with the following executive common law tradition.

As I said, first it's generally a duty to extradite.

However, where there is a serious question of the safety of the individual in the demanding state, extradition may be denied.

Where there's a question of--

Unidentified Justice: What's the source... how can you tell what this common law tradition is?

Are there governors' statements and that sort of thing?

Mr. Appel: --There's a smattering of case law.

And admittedly, I must say, some of the case law is fairly oblique.

Why?

Because the governors' statements are not necessarily sweeping judicial statements.

In general, it's a summary executive proceeding.

There isn't findings of fact and conclusions of law, or anything like that.

But my sources on these, if you look through Moore, Spear and Scott, which are the key extradition treatises, they present to you circumstances in which states have declined to extradite.

And if you look at South Dakota v. Brown, the latest Supreme Court case... California Supreme Court case... there's a canvass.

My bottom line point, however, is that this executive tradition has developed over a hundred years in interpreting... over 200 years, really... in interpreting that constitutional provision.

Secondly, informal mechanisms of resolution of extradition disputes have grown up.

There's a National Governors Association, of course.

And there was reference to discussion between the governors of these states with respect to this extradition matter, and that occurred in this case.

There's a national association of extradition officials, and they put out these manuals and pamphlets and so forth.

And they get together and debate and discuss extradition questions.

So there's been... in the absence of judicial intervention, which has been gone from the environment for 200 years, these informal mechanisms have grown up.

Unidentified Justice: xxx needn't perform what otherwise would be his duty?

Mr. Appel: Well, as to how to deal with the--

Unidentified Justice: Well, that's what it amounts to in this case.

Mr. Appel: --Well, our interpretation, of course, is the governor has done his duty; and that the governor--

Unidentified Justice: Well, he needn't carry... he needn't extradite.

Mr. Appel: --And that's our interpretation of the Constitution, that's correct, that while--

Unidentified Justice: Sometimes he has to and sometimes he doesn't?

Mr. Appel: --Well, that's correct, just like the First Amendment says Congress--

Unidentified Justice: Well, are you defending the judgment that... are you defending Kentucky, the Kentucky case, that there is no power to make a government extradite?

Mr. Appel: --I think that prong of Kentucky v. Dennison has been much chipped away.

Unidentified Justice: Well, I know, but how about my question?

Mr. Appel: Am I saying that this Court has no power?

Unidentified Justice: Yes.

Mr. Appel: Yes, I would say that.

Unidentified Justice: Has no power to order a governor?

Mr. Appel: Has no power under the constitutional scheme, because that was not anticipated.

Unidentified Justice: You know what you're asking for?

A haven for any criminal from Iowa.

Any criminal charged with a serious... all he has to do is run to Puerto Rico.

Is that what you're advocating?

Mr. Appel: What I'm advocating is that the governors have authority to interpret that constitutional provision.

But the Governor of Iowa has no interest in harboring fugitives, murderers and all this kind of stuff on a regular basis.

The Governor of Iowa routinely extradites.

Unidentified Justice: [inaudible]

Mr. Appel: Affected by the facts, yes, exactly.

And I think that the Governor of Iowa, if the case were presented--

Unidentified Justice: He thinks this is a manslaughter case.

Mr. Appel: --That's right, or less.

Unidentified Justice: You mean when you drive over a pregnant woman three or four times, that's manslaughter?

Mr. Appel: Well, that's what's alleged in the affidavits, of course.

Unidentified Justice: Well, that's all you have to go on.

Mr. Appel: Well--

Unidentified Justice: That's all you have to go on under the extradition act.

Well, again, I'd like to know, you think the governor, anytime he wants to, can refuse extradition, and that he may not be ordered to extradite by a Federal court?

Mr. Appel: --That's correct.

That's correct.

Unidentified Justice: Well, Mr. Appel, what about cases like ex parte Young?

Do they have any relevance, do you think?

Mr. Appel: I think we need to perhaps distinguish between practical power and interpretation of the extradition clause.

Our view is that when the extradition clause was put into the Constitution, as it's been interpreted over the years, the courts have said, judicial people stay out; hands off kind of policy.

It wasn't designed for us to intervene.

If you're talking about power itself, and does this Court... can it issue orders and so forth and so on, that's a different matter.

And let me make it very clear: I'm here to say, the Governor of Iowa of course is going to follow whatever order this Court comes down with.

We're not challenging in any kind of physical way whether the Court can enforce its own mandates.

Unidentified Justice: The question is just whether that aspect of Dennison is valid today.

Mr. Appel: Right, right.

And--

Unidentified Justice: It grew up a long time ago in different circumstances.

Mr. Appel: --Right.

Unidentified Justice: And the Court has gone a long way since then--

Mr. Appel: True.

Unidentified Justice: --in saying that Federal courts generally have power to enforce--

Mr. Appel: Surely true.

And I think... I think much of that underpinning, in terms of the rationale in Dennison, has been undercut today; no question about it.

But that doesn't mean... that doesn't necessarily turn the interpretation of the extradition clause upside down.

In fact, it was never contemplated that the judiciary become intensively involved in these kind of extradition--

Unidentified Justice: --Well, didn't Dennison say that there was an absolute duty, a ministerial duty, on the part of the governor to comply with the extradition request?

Mr. Appel: --Dennison did say--

Unidentified Justice: And I read it as turning only on the question of whether Federal courts had the power to enforce the ministerial duty.

Mr. Appel: --Dennison did say that.

In the governor's opinion, that was dicta.

And indeed, this very Court, in Taylor v. Taintor, which was decided in 1873, declares... and I'm just reading from the case... where demand is properly made by the governor from one state, the duty is not absolute and unqualified.

It depends on the circumstances of the case.

And it goes on to use the term "discretion".

So the court has been across the board on that issue.

But I would submit to you--

Unidentified Justice: Well, if you're going to defend on the case, the Dennison case involved the slave act.

Mr. Appel: --That's correct.

Unidentified Justice: Which you agree that doesn't apply today.

Mr. Appel: Oh, well, obviously there's no slavery today.

Unidentified Justice: I hope you do.

I don't want to get down off the bench.

Mr. Appel: Of course not.

Of course not.

Unidentified Justice: Getting back to my other point, the State of Iowa says, Calder has been charged by Puerto Rican authorities with murder in connection with an automobile accident.

Do you agree with that?

That is was just an automobile accident?

Mr. Appel: There's never been any fact finding in this case, Justice Marshall.

That was--

Unidentified Justice: Well, do you agree that it was just an automobile accident?

Mr. Appel: --That's the... there clearly was an automobile accident, yes.

Unidentified Justice: Automobile accident, when you deliberately run over somebody?

Mr. Appel: That was the allegations in the affidavits presented in support of probable cause.

Unidentified Justice: Is there anything to disprove it?

Mr. Appel: Yes, there's an entirely--

Unidentified Justice: Is the woman dead?

Mr. Appel: --Absolutely.

Undisputable.

Unidentified Justice: And the baby's dead?

Mr. Appel: Undisputable.

I'd like to move on to the question of why was bail so low, which is a good--

Unidentified Justice: Kentucky v. Dennison, by the way, not only involved a fugitive slave problem, but also in 1860, right?

Mr. Appel: --That's true, of course.

Unidentified Justice: At a time when, if we had said we had had the power to compel it by the states, it's not at all clear that the states wouldn't have laughed at us, right, until after the Civil War.

Mr. Appel: That's quite true, isn't it.

Unidentified Justice: You don't think that maybe things are a little different now, and we should reconsider whether that case was unduly influenced by the times in which it was decided?

Mr. Appel: No question that things are a little different now.

But it seems to me, as a matter of constitutional policy, the courts ought to stay out of these matters.

And I'd like to move on to my second--

Unidentified Justice: Well, I'm suggesting that the policy was a very pragmatic one; that the times were such that the Court might not have thought it could have made a different decision stick.

Mr. Appel: --Let me try and justify Kentucky v. Dennison on other grounds, other rationale, if I may, Justice Scalia.

The issue in this case is simply a shifting of power from governors to the judiciary.

If the judiciary decides to administer the extradition clause, there will be play in the joints.

There's no such thing as a ministerial constitutional provision.

And just as the full faith and credit clause, for instance, says, full faith and credit shall be given, the courts have engaged in a process of interpretation of when that clause applies and when it does not apply.

Secondly, of course mandamus doctrine allows for all kinds of equitable defenses.

It's not... the mandamus is not granted in an automatic fashion.

That's what Marbury v. Madison says in passing, good government requires, and so forth and so on.

And so what we're going to do--

Unidentified Justice: But those defenses would not pertain to whether indeed it was just an automobile accident or an attempt... or a murder.

And they wouldn't pertain to whether there is a good system of justice in the state to which the individual is sought to be... they would pertain to quite different factors that the governors usually don't worry about.

Mr. Appel: --Well, suppose... let me give you a fact hypothetical.

Supposing there was a lynch... lynch mob mentality in a jurisdiction.

And there mobs in Puerto Rico, if I get back to the record, from our perspective.

Supposing the governor had good evidence that this person gets extradited, and there's going to be a lynching.

Or there's a serious question of the physical safety of someone.

Under the extradition clause, must a governor, simply by looking at the affidavits on its face, and the fact that he's a fugitive, must a governor in all instance extradite?

Answer: I don't think so.

And I don't think this--

Unidentified Justice: In the '20s and '30s, I can give you thousand cases where that was just what happened.

Mr. Appel: --I suspect so, and it might happen again in the future, unfortunately.

Unidentified Justice: Was that all right.

Mr. Appel: No, extradition should not have been granted in those instances.

Unidentified Justice: Oh, we should have left them up there.

Well, it's a little--

Mr. Appel: Well, a number of governors declined to extradite on just those facts.

It's our footnote 7, the Pennsylvania case.

Unidentified Justice: --A case?

Mr. Appel: There's a case out of Pennsylvania, yes, there is where a governor... a judge, actually, a court, declined to extradite under those circumstances.

Unidentified Justice: Well, you said the governor.

Mr. Appel: Well, I'm sorry.

Unidentified Justice: That's right.

I know you're wrong.

I had a few of those cases.

Suppose we overturned Kentucky and said, yes, governors may be ordered to do their duty under the extradition clause.

I take it you don't think the case is over even then?

Mr. Appel: Oh, it is not.

Unidentified Justice: Because?

Mr. Appel: Well, if we look at the way the shape... the way this case is framed.

It's a petition for a writ of mandamus.

And it characterizes the duty under the extradition clause as ministerial, and then says that the governor looked at materials outside the sufficiency of the affidavits accompanying the warrant and the fact that he's a fugitive.

No factual dispute on that.

The governor did consider material outside the scope of the stack of papers.

No question about it.

And what Puerto Rico has said is, bzzz, that's illegal right there.

Mandamus, you cannot consider matters outside the question of whether or not he's substantially charged and whether he's a fugitive.

Our position is, oh, yes, yes, because of this executive common law tradition, you can consider the safety of the individual.

Unidentified Justice: Well, so the case wouldn't be over.

Mr. Appel: Right.

Unidentified Justice: But the case would be over in this Court.

Mr. Appel: Well, it would be remanded back to the District Court for appropriate proceedings.

Unidentified Justice: So those issues, if you've got them, would be open in the district court?

Mr. Appel: That's correct.

Unidentified Justice: And it didn't sound very much like the lower court would be too sympathetic with your position.

But they may be.

Mr. Appel: Well, we haven't had any development of it--

Unidentified Justice: Right.

Mr. Appel: --because we relied on Kentucky v. Dennison, and the motion to dismiss and all this.

Unidentified Justice: Well, why is mandamus the only conceivable remedy for the demanding state if Kentucky v. Dennison were to be overruled?

I mean, couldn't you just bring an ordinary 1983 action against the governor?

Mr. Appel: I think it would be very difficult to bring a 1983 action and obtain a compulsive remedy of getting ahold of the individual.

But I do want to speak to alternative remedies.

First, the Congress of the United States has acted in this extradition area.

It has not passed a mandamus statute authorizing district courts or this Court to issue writs of mandamus for fugitives.

It's passed a mandamus statute, you're all familiar with it, 1361, which authorizes mandamus against Federal officials; and there's been much litigation about that in the Heckler case and so forth.

Unidentified Justice: Yes, but isn't there an easy explanation for that?

They couldn't do that without defying the last sentence in the Dennison case?

Mr. Appel: Of course.

Of course, that's right.

But you see, that's the Catch-22 situation.

It's the fact that this doctrine has been historically established, and this constitutional vegetation has grown up.

And Puerto Rico's argument is really a constitutionally violent one in the sense that it strips away all these informal mechanisms, and strips away the fugitive felon act, which is Congress' method of approaching the problem.

Unidentified Justice: But your informal mechanism, as I understand it, is that the governor of the asylum state should be free to decide whether the jurisprudence of another state... or the governor of another state is equipped to protect the extradited defendant from lynching.

And you're suggesting there's enough danger of lynching around a different... one state or another that we should simply ignore the constitutional command.

Mr. Appel: We're not ignoring the constitutional--

Unidentified Justice: Well, but that's your policy argument.

Mr. Appel: --No, no.

No, the question then is what is the constitutional command.

I mean, it's like a First Amendment argument saying, well, you know, the First Amendment says, Congress shall pass no law.

And then we say, fire in the theater, and we pass a Congressional regulation saying you can't do that.

It's a question of substance.

And I don't think there's such a thing as a ministerial constitutional duty.

Unidentified Justice: Don't you think that sometimes the governors' determinations about whether to extradite a particular individual may be affected by what kind of press coverage the case has gotten?

Mr. Appel: Surely.

Unidentified Justice: And how he thinks he'll fare in the next election if he should extradite this individual?

Mr. Appel: I suspect--

Unidentified Justice: And that problem is eliminated by having the... if indeed there are mandamus discretionary equitable kinds of considerations that should be taken into account, wouldn't they better be taken into account by a life-tenured Federal judge on a mandamus action, who doesn't have to worry about what the electorate would do the next time around?

Mr. Appel: --A couple of difficulties, I think.

First, the governors have access to all kinds of informal channels of communications that may not be available to a sitting Federal judge.

They get on the phone, they call the other governors.

They have frank and candid discussions about it.

Unidentified Justice: They can oppose the extradition if they want.

They can come into the court, I assume, and provide whatever information those informal channels would yield.

Mr. Appel: But of course, the reaction, if that were the law that the Federal courts were going to be involved, is, the governors are just going to more or less hand the issues over to them.

I think we want to encourage this informal method of discussion that we have.

Secondly--

Unidentified Justice: Well, I don't follow that argument.

Isn't it true that in 90 percent of extradition requests, or maybe a higher percentage, they're routinely processed?

Mr. Appel: --Surely true.

Unidentified Justice: It's only the exceptional case that produces this kind of controversy.

Mr. Appel: Surely true.

Unidentified Justice: And that would not change, would it?

Mr. Appel: No.

The only... the questions in this case really are... in fact the governor's interpretation of the extradition clause I don't think is fundamentally very much different than what frankly the members of the Court are likely to come up with, though on the margins apparently there's some question.

The governor believes that he can go beyond the affidavits to look at the safety of the individual and issues of fairness and so forth.

That's what the governor believes as part of the constitutional provision.

The question is, who administers, more than anything.

I'd also like to point out if I may--

Unidentified Justice: You say... the question is, which governor shall have the final say?

That's really what it boils down to.

Mr. Appel: --The question is, who shall have the--

Unidentified Justice: The governor of the state in which the crime was allegedly committed, or the governor of the state in which the defendant seeks asylum.

One of them has to have the final say.

Mr. Appel: --Well, indeed, I think if the Court becomes involved, the Court of course will have the final say.

And it may--

Unidentified Justice: Well, the only thing the Court would decide is what's been admitted in this case, whether there was compliance with the procedural requirement.

Mr. Appel: --Well, I'm not sure of that.

Unidentified Justice: Well, what issue would be open for the court?

Mr. Appel: Well, let me ask this: Supposing... supposing again, and I'm posing--

Unidentified Justice: Supposing a lynch situation?

Mr. Appel: --Yes.

Unidentified Justice: The answer would be, if you follow the Constitution, that the governor of the state where the crime is committed has a duty to prevent lynching.

Mr. Appel: No, I don't think so.

It's like, for instance, the full faith and credit clause, for example, let's use that analogy.

In the full faith and credit context, in the... in the so-called foreign state, you can challenge that foreign decree on the basis that were no jurisdictions, there was no due process, a number of other things.

Unidentified Justice: Right, but you can't challenge an extradition on that ground.

There are certain specific requirements that must be met.

Mr. Appel: I don't read that in the Constitution, quite frankly.

I mean, that's like saying... look at the full faith and credit clause.

Talk about sweeping.

It says, full faith and credit shall be given to each... blah-blah-blah... for all acts, et cetera, et cetera, et cetera.

Unidentified Justice: xxx changed to whether it is a valid judicial act of the other state.

And I assume that there can be fights here about whether there... there indeed was a valid request from the other governor.

Mr. Appel: Well, Justice Scalia, that's not entirely true.

For instance, in the Antelope case, for instance, back in Justice Marshall's day, it was held that penal provisions aren't enforceable under full faith and credit.

It was also--

Unidentified Justice: xxx because no state generally enforced the criminal laws of another.

Mr. Appel: --Right, but I think we're--

Unidentified Justice: That's why... that's why they put it in the Constitution.

Mr. Appel: --I understand that.

But I think you're assuming the question of the scope of the clause.

It's like a... it's like a First Amendment type setting once again.

We understand that the general obligation, as is the general obligation under the First Amendment, is that--

Unidentified Justice: And if we read Dennison, it's a ministerial obligation.

Mr. Appel: --Well, and I just don't... I must say, I don't--

Unidentified Justice: We should overrule that part of Dennison, you'd have us reject?

Mr. Appel: --I think that is not correct.

Unidentified Justice: Do you think that your governor could relitigate the question of probable cause to arrest in this state?

And he'd say, well--

Mr. Appel: No, the probable cause, we have stipulated that there was, on the face of the affidavits--

Unidentified Justice: --Well, that isn't what I was asking you.

What if the governor said, you know, I just don't believe there was probable cause to arrest this fellow in Puerto Rico.

They just don't have the facts there, despite this warrant and despite these affidavits.

Now, can he relitigate that?

Mr. Appel: --If the Court becomes involved, I assume he could.

I assume he could.

Unidentified Justice: Well, what have we held in that regard?

Mr. Appel: Oh, sure.

Right, Michigan v. Dorn.

But what did you hold in that regard?

Unidentified Justice: What did we hold?

Mr. Appel: Well, as the Justice well knows, you held that a court... a court... would not look beyond--

Unidentified Justice: Where the governor has decided to extradite.

Mr. Appel: --When the governor has decided to extradite, precisely.

There's a whole host of cases--

Unidentified Justice: Do you think the governor could decide not to extradite because he didn't think there was probable cause.

Mr. Appel: --Yes, of course.

Unidentified Justice: xxx on the face of the document.

Well, then the provision of the Constitution really doesn't do anything at all.

If your answer to that is--

Mr. Appel: Excuse me, I'm going to back off that.

I think that's not correct.

But... I know when I'm out on a limb, and that's one.

Unidentified Justice: --A weak limb, too.

Mr. Appel: But I want to come back to the basic constitutional point, and that is, again, this business frankly, about is his duty mandatory or is ministerial, this is not a helpful distinction.

There's no question that the... that the extradition clause in general establishes a norm of constitutional conduct, just as full faith and credit does, and just as the First Amendment does.

And once again, the question is, what do we do at the margins?

And I might add... let's look at this Article IV; I think it's kind of interest.

Full faith and credit, et cetera.

Congress shall provide how the record shall be proved, and the effect thereof.

Congress is expressly authorized to prove the effect thereof of full faith and credit, and it has under 1738--

Unidentified Justice: If full faith and credit applied, you wouldn't need the extradition act.

Mr. Appel: --But if we look under--

Unidentified Justice: Would you?

Would you?

If full faith and credit applied, you wouldn't need the extradition act.

Mr. Appel: --Yes, I think that's probably true.

Unidentified Justice: But we have the extradition act.

Mr. Appel: Yes.

Unidentified Justice: So obviously, full faith and credit didn't apply.

Mr. Appel: Yes, but the point--

Unidentified Justice: Well, why are you arguing full faith and credit?

Mr. Appel: --Well, I'm trying to argue by analogy, to make two points, Justice.

One is, just the provision says "shall" doesn't mean that it answers all our questions.

And secondly, Congress is given express authority to determine the effect thereof on the full faith and credit.

We move down, then, to the extradition clause, and we don't have such language.

Indeed, the framers no doubt thought that the states in their own... that each state's governor would determine how to interpret that extradition clause.

There's no further... say, Congress shall give effect, et cetera.

In closing, I do want to go... raise--

Unidentified Justice: xxx have now with respect to the fugitive slave provision that Congress has authority to implement.

There's no reason to think as far as the implementation power is concerned, the one is different from the other, is there?

Mr. Appel: --Well, I think there is.

And the reason for that is, again, the constitutional history of judicial nonintervention that's grown up.

Unidentified Justice: Yes, to be sure.

I mean you can answer that... you can answer all my questions that way.

Mr. Appel: I suspect I could.

Unidentified Justice: Just citing Kentucky v. Dennison.

Mr. Appel: I wanted to address your concern about the power under the territories clause, and that we could conceivably put aside Article IV, the extradition clause, and go under the territory clause, right.

First, that hasn't been raised in this proceeding.

Indeed, it's not in the petition for writ of certiorari.

The petition is only based on Article IV.

And it seems to me that Puerto Rico is seeking for an opinion of this Court to declare that it's a state.

There's an ideological interest at stake here, I think.

They haven't raised the claim.

But let me address the claim--

Unidentified Justice: xxx you think there might be some problem?

Let's assume we were talking about a territory in which Congress had not even established any local courts; it was governing it by Federal courts, all right?

Could Congress require a state to hunt down a... a state to hunt down a fugitive from an indicted crime in that territory?

Mr. Appel: --I think not.

Unidentified Justice: Yeah, that's the problem I have.

Mr. Appel: And the reason for that is that, Your Honor, the Tenth Amendment, all rights are reserved to the states.

The extradition clause plainly says, when a sister state requests it, you know, that's cut into.

But I think if Congress attempted to pass such a statute, it wouldn't pass constitutional muster.

Unidentified Justice: You say, Congress' remedy is, if it's a Federal offense in a Federal territory, use your own police to do it; you can't lay that burden on the states.

Mr. Appel: That's right.

And that can be done under the Fugitive Felon Act, which allows... someone who flees from one state to another is guilty of a Federal crime, if the Attorney General authorizes prosecution.

You can see that Congress has been very chary about getting into this field.

By passing the Fugitive Felon Act, which says it's a Federal crime to jump from one state to another, and a Federal prosecution can be brought with the approval of the Attorney General or the assistant Attorney General, which may not be delegated.

And so there's no serious threat of a constitutional breakdown occurring in this case at all.

The system has worked well.

If it ain't broke, don't fix it, is part of our argument.

It's hard to see how the injection of the judiciary into the environment is going to help improve things.

In closing... this is my second closing... I'd like to briefly go through some of the facts that were stated.

The question about bond being so low: One of the reasons is, they were afraid that this person if incarcerated in Puerto Rico would be killed; and that appears in the Appendix as part of the extradition proceeding.

There was a serious concern about the safety of this individual.

I want... I want to stress, Justices, this was on a motion to dismiss and a petition for writ of mandamus, and there hasn't been a factual development in a traditional sense down below.

These are materials that were before the governor.

But I just want to share with you some of the concerns that were motivating Governor Branstad, who normally extradites, of course.

There was serious concern about the safety of the individual; fear that he'd be killed.

Unidentified Justice: This is the kind of thing we hear about extradition to foreign countries.

Mr. Appel: I understand that.

Unidentified Justice: Would you make the same argument if Michigan instead of Puerto Rico were involved?

Mr. Appel: Yes.

Yes, I'd have to.

Unidentified Justice: Things are tough up in the Upper Peninsula?

Mr. Appel: Well, I think... no... the basic construct is this, what is the substance of the extradition clause?

It vests administrative authority in the governor to decide whether or not that general duty applies.

And on the margins, the governors determine what the exceptions are.

And in the course of this 150 years, there's been kind of a common law type evolution, documented perhaps kind of illy because there haven't been that many litigated cases.

But the governors have developed a number of exceptions, just like exceptions have been developed to full faith and credit, and just like exceptions have been developed--

Unidentified Justice: You think they really like to do that?

It is curious that no other states have come in on either side of this thing.

I really wonder whether governors like to have to worry about this stuff; whether they wouldn't be delighted to have these questions about whether somebody's going to be hung if he goes somewhere else, worried about by courts.

It seems like a strange thing for the Governor of Iowa or anywhere else to be worrying about.

Are you sure you're doing your governor a favor?

Mr. Appel: --I'm here at his instructions.

I think there's some ambivalence about extradition to be sure among the governors.

That's just my speculation; I haven't taken any poll.

But again, we have to wonder, how will the best institutional results be fashioned here?

It seems to me that--

Unidentified Justice: You're suggesting in that regard that we should treat the states... this is an aggregation of sovereign states that are just like Europe, might decide not to... it's the same... similar thing in that area.

Mr. Appel: --Obviously, it's not just like Europe.

Unidentified Justice: And the reason it's not is because we have this clause in the Constitution.

Mr. Appel: My red light's on, but to answer: What is the purpose of this extradition clause?

What is has done, and no one can dispute this fact, what the extradition clause has done is ensured that each governor has authority to extradite a person to a sister state; and no one can go into Federal habeas corpus or state habeas corpus and say, look, no authority; you can't do it.

And the extradition clause has made that absolutely, crystal, perfectly clear, and no court has held otherwise; just as they've also held that no courts should coerce a governor.

Chief Justice Rehnquist: Thank you, Mr. Appel.

Your time has expired.

The case is submitted.

Attribution:

The OYEZ Project

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