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SUPREME COURT OF THE UNITED STATES
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No. 91-7749
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JOSE ANTONIO ORTEGA-RODRIGUEZ,
PETITIONER v. UNITED STATES ____
ON WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE ELEVENTH
CIRCUIT
[March 8, 1993]
CHIEF JUSTICE REHNQUIST, with whom JUSTICE WHITE, JUSTICE O'CONNOR, and
JUSTICE THOMAS join, dissenting.
The Court holds that, in general, a court of appeals may not dismiss an appeal
based on a defendant's fugitive status if that status does not coincide with the
pendency of the appeal. We disagree. The only difference between a defendant
who absconds preappeal and one who absconds postappeal is that the former has
filed a notice of appeal while the latter has not. This "distinction" is not
strong enough to support the Court's holding, for there is as much of a chance
that flight will disrupt the proper functioning of the appellate process if it
occurs before the court of appeals obtains jurisdiction as there is if it occurs
after the court of appeals obtains jurisdiction. As a consequence, there is no
reason why the authority to dismiss an appeal should be based on the timing of a
defendant's escape. Although we agree with the Court that there must be some
"connection" between escape and the appellate process, we disagree with the
conclusion that recapture before appeal generally breaks the
connection. (Ftnote. 1) (Ftnote. 1)
____________________
1) The Court erroneously strikes the Holmes rule on the basis that "it 1) ______
reaches too many appeals," ante, at 16, n. 23, because there is no overbreadth ____
doctrine applicable in this context. See Broadrick v. Oklahoma, 413 U. S. 601, _________ ________
610-611 (1973) (overbreadth doctrine is the exception rather than the rule
because "courts are not roving commissions assigned to pass judgment on the
validity of the Nation's laws"). As long as the fugitive dismissal rule was
applied legally to the facts of this case, the Eleventh Circuit's rule cannot be
struck down. It is for this reason that we would affirm the Eleventh Circuit
rather than vacating and remanding. 91-7749 - DISSENT
2 ORTEGA-RODRIGUEZ v. UNITED STATES ____
It is beyond dispute that the courts of appeals have supervisory power to
create and enforce "procedural rules governing the management of litigation."
Thomas v. Arn, 474 U. S. 140, 146 (1985). The only limit on this authority is______ ___
that the rules may not violate the Constitution or a statute, and must be
reasonable in light of the concerns they are designed to address. See id., at ___
146-148. There can be no argument that the fugitive dismissal rule employed by
the Eleventh Circuit violates the Constitution because a convicted criminal has
no constitutional right to an appeal. Abney v. United States, 431 U. S. 651, _____ _____________
656 (1977). Nor is the rule inconsistent with 28 U. S. C. S1291, which grants
to criminal defendants the right of appeal, because that section does not set
forth the procedural requirements for perfecting an appeal. Those requirements
are set forth in the Federal Rules of Appellate Procedure and the local rules of
the courts of appeals. Indeed, under Federal Rule of Appellate Procedure 47,
each court of appeals has authority to make rules "governing its practice"
either through rule-making or adjudication.
The fugitive dismissal rule is reasonable in light of the interests it is
designed to protect. In Molinaro v. New Jersey, 396 U. S. 365 (1970), we ________ __________
declined to adjudicate a defendant's case because he fled after appealing his
state conviction. We reasoned that by absconding, the defendant forfeited his
right to "call upon the resources of the Court for determination of his claims."
Id., at 366. And in Estelle v. Dorrough, 420 U. S. 534 (1975), we upheld a___ _______ ________
Texas statute that mandated dismissal of an appeal if 91-7749 - DISSENT
ORTEGA-RODRIGUEZ v. UNITED STATES 3 ____
the defendant fled after invoking the jurisdiction of the appellate court. We
recognized that Texas reasonably has an interest in discouraging felony escape,
encouraging voluntary surrenders, and promoting the "efficient, dignified
operation of the Texas Court of Criminal Appeals." Id., at 537. Both Molinaro ___ ________
and Estelle are premised on the idea that a reviewing court may invoke _______
procedural rules to protect its jurisdiction and to ensure the orderly and
efficient use of its limited resources.
While we agree with the Court that there must be some connection between
fugitivity and the appellate process in order to justify a rule providing for
dismissal on that basis, we do not agree that flight generally does not have the
required connection simply because it occurs before the defendant or his counsel
files a notice of appeal. (Ftnote. 2) It is fallacious to suggest that a (Ftnote. 2)
defendant's actions in fleeing likely will have no effect upon the appellate
process unless those actions occur while the court of appeals has jurisdiction
over the case. Indeed, flight during the pendency of an appeal may have less of ____
an effect on the appellate process, especially in cases where the defendant
flees and is recaptured while the appeal is pending. Because there is no delay
between conviction and invocation of the appellate process, dismissal in such a
case is premised on the mere threat to the proper operation of the appellate ______
process. Yet the Court concedes, as it must, that courts of appeals may dismiss
an
____________________
2) The very wording of Rule 47, which gives the appellate courts authority 2)
to create local procedural rules, supports the connection requirement: "Each
court of appeals by action of a majority of the circuit judges in regular active
service may from time to time make and amend rules governing its practice not ______________________
inconsistent with these rules. In all cases not provided for by rule, the
courts of appeals may regulate their practice in any manner not inconsistent
with these rules." Fed. Rule App. Proc. 47 (emphasis added). 91-7749 - DISSENT
4 ORTEGA-RODRIGUEZ v. UNITED STATES ____
appeal in this situation. Ante, at 7-8; see Allen v. Georgia, 166 U. S. 138 ____ _____ _______
(1897).
If, as in the present case, the defendant eventually is recaptured and
resentenced, he obtains a second chance to challenge his conviction and
sentence, and consequently delays the appellate process by at least the amount
of time he managed to elude law enforcement authorities. We are startled by the
Court's assertion that "any concomitant delay . . . likely will exhaust itself
well before the appellate tribunal enters the picture." Ante, at 11. If the ____
defendant obtains an additional opportunity to file a timely notice of appeal,
the court of appeals, in the absence of a fugitive dismissal rule or any
jurisdictional defect, must entertain the appeal. At the very least, the result ____
is an increase in the court's docket and a blow to docket organization and
predictability. This disruption to the management of the court's docketing
procedures is qualitatively different from delay caused by other factors like
settlement by the parties. Unlike the fugitive's case, the settled case will
not turn up as an additional and unexpected case on the court's docket some time
down the road. And of course, the burden of delay increases exponentially with
the number of defendants who abscond preappeal, but are recaptured and invoke
the appellate court's jurisdiction in a timely manner. The Court fails to
explain how this obvious delay somehow disappears when the defendant is recap-
tured before invoking the appellate court's jurisdiction.
As is demonstrated by the instant case, the delay caused by preappeal flight
can thwart the administration of justice by forcing a severance, requiring
duplication of precious appellate resources, and raising the spectre of
inconsistent judgments. Here, the appellate process was delayed by
approximately 19 months (counting both the period of fugitivity and the time
used by the District Court to resentence petitioner). During this delay, the
Eleventh Circuit heard and decided the appeals filed by 91-7749 - DISSENT
ORTEGA-RODRIGUEZ v. UNITED STATES 5 ____
petitioner's codefendants. United States v. Mieres-Borges, 919 F. 2d 652 _____________ _____________
(1990), cert. denied, 499 U. S. ___ (1991). Because petitioner fled, the
Eleventh Circuit was unable to consolidate petitioner's appeal with those filed
by his codefendants and conserve judicial resources. In addition to forcing a
severance, petitioner's flight created a real possibility of inconsistent
judgments. Petitioner's flight "imposed exactly the same burden of duplication
on the court of appeals that it would have if he had filed his notice of appeal
before absconding." Brief for United States 21. Had petitioner's counsel filed
a notice of appeal on petitioner's behalf while he remained at large, the Court
of Appeals could have dismissed the appeal with prejudice. See Molinaro, 396 ________
U. S., at 366. Since petitioner's flight had an adverse effect on the proper
functioning of the Eleventh Circuit's process, there is no principled reason why
that court should not be able to dismiss petitioner's appeal.
In addition to administration, the Eleventh Circuit's fugitive dismissal rule
is supported by an interest in deterring flight and encouraging voluntary
surrender. Due to the adverse effects that flight, whenever it occurs, can have
on the proper functioning of the appellate process, courts of appeals have an
obvious interest in deterring escape and encouraging voluntary surrender.
Unfortunately, today's opinion only encourages flight and discourages surrender.
To a defendant deciding whether to flee before or after filing a notice of
appeal, today's decision makes the choice simple. If the defendant flees
preappeal and happens to get caught after the time for filing a notice of appeal
has expired, he still has the opportunity for appellate review if he can
persuade a district judge to resentence him. If the district judge refuses, the
defendant is at no more of a disadvantage than he would have been had he escaped
after filing an appeal since flight after appeal can automatically extinguish
the right to appellate review. See Molinaro, supra. _______________ 91-7749 - DISSENT
6 ORTEGA-RODRIGUEZ v. UNITED STATES ____
A rule permitting dismissal when a defendant's flight interrupts the appellate
process protects respect for the judicial system. When a defendant escapes,
whether before or after lodging an appeal, he flouts the authority of the
judicial process, of which the court of appeals is an integral part. Surely the________ _______
Court does not mean to argue that a defendant who escapes during district court
proceedings intends only disrespect for that tribunal. Quite obviously, a
fleeing defendant has no intention of returning, at least voluntarily. His
flight therefore demonstrates an equal amount of disrespect for the authority of
the court of appeals as it does for the district court. Viewed in this light,
the "finely calibrated response" available to the district court, ante, at 14, ____
does nothing to vindicate the affront to the appellate process. The Court's
argument is not enhanced by the use of far-fetched hypotheticals, see ante, at ____
13, because the dignity rationale does not exist in a vacuum. As outlined
above, a reviewing court may not dismiss an appeal in the absence of some effect
on its orderly functioning.
While the Court recognizes that the reasoning underlying the opinion requires
an exception for cases in which flight throws a wrench into the proper workings
of the appellate process, ante, at 15-18, its rule is too narrow. The Court ____
limits the exception to cases in which flight creates a "significant
interference with the operation of [the] appellate process." Ante, at 16. ____
Translated, the rule applies preappeal only when retrial is hampered, a
"`meaningful appeal [is] impossible' ", or the case involves multiple
defendants, thereby causing a forced severance. Ante, at 16-18. This grudging ____
concession is insufficient because it fails to include those cases where sheer
delay caused by the fugitivity of the lone defendant has an adverse effect on
the appellate process.
In sum, courts of appeals have supervisory authority, both inherent and under
Rule 47, to create and enforce procedural rules designed to promote the
management of 91-7749 - DISSENT
ORTEGA-RODRIGUEZ v. UNITED STATES 7 ____
their docket. Fugitivity dismissal rules are no exception. In cases where
fugitivity obstructs the orderly workings of the appellate process, this
authority is properly exercised. Because petitioner's flight delayed the
appellate process by approximately 19 months, and involved the burden of
duplication and the risk of inconsistent judgments, we would hold that the
Eleventh Circuit properly applied its fugitive dismissal rule in this case.