United States v. Shalhoub

• Decision Date: 28 April 2017
• Docket Number: No. 16-10533,16-10533
• Citation: 855 F.3d 1255
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Khalid A. SHALHOUB, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

855 F.3d 1255

UNITED STATES of America, Plaintiff–Appellee,

v.Khalid A. SHALHOUB, Defendant–Appellant.

No. 16-10533

United States Court of Appeals, Eleventh Circuit.

April 28, 2017

Wifredo A. Ferrer, Anne P. McNamara, Lisette Marie Reid, Lisa Tobin Rubio, Emily M. Smachetti, U.S. Attorney's Office, Miami, FL, for Plaintiff–Appellee.

Pierre H. Bergeron, Squire Patton Boggs (US) LLP, Cincinnati, OH, Rebekah J. Poston, Squire Patton Boggs (US) LLP, Miami, FL, Samuel Rosenthal, Squire Patton Boggs (US) LLP, Washington, DC, for Defendant–Appellant.

Before WILLIAM PRYOR and MARTIN, Circuit Judges, and DUFFEY,^* District Judge.

WILLIAM PRYOR, Circuit Judge:

This appeal presents the questions whether the denial of a motion for special appearance of counsel to seek the dismissal of an indictment on the ground that the defendant is a fugitive from justice is an immediately appealable collateral order and, if not, whether we should issue a writ of mandamus to compel a ruling on the motion to dismiss the indictment without requiring the defendant to appear. In 1997, a grand jury indicted Khalid Shalhoub on one count of international parental kidnapping, 18 U.S.C. § 1204. Shalhoub lives in Saudi Arabia and has never been arrested. In 2015, he moved to have his attorneys specially appear to seek dismissal of the indictment, which the district court denied on the ground that the fugitive disentitlement doctrine prohibits Shalhoub from calling upon the resources of the court without submitting to its jurisdiction. Shalhoub appealed and, alternatively, petitioned for a writ of mandamus. We dismiss his interlocutory appeal for lack of jurisdiction because the order denying his motion is not appealable under the collateral order doctrine. We also deny his petition for a writ of mandamus because Shalhoub has an adequate means to obtain relief—appearance in the district court—and cannot establish that his right to mandamus is clear and indisputable.

I. BACKGROUND

Khalid Shalhoub, a citizen and resident of Saudi Arabia, married Miriam Hernandez in Miami in 1985. They divorced four years later. A Florida court granted Shalhoub and Hernandez "full shared parental responsibility" over their only child, Yasmeen, and the court designated Hernandez "as the primary residential parent."

In 1997, a grand jury in the Southern District of Florida indicted Shalhoub on one count of parental kidnapping in violation of the International Parental Kidnapping Crime Act, which makes it a crime to "remove[ ] a child from the United States ... with intent to obstruct the lawful exercise of parental rights." 18 U.S.C. § 1204(a). The indictment alleged that Shalhoub removed Yasmeen from the United States to Saudi Arabia "with [the] intent to obstruct the lawful exercise of the parental rights of Miriam Hernandez." Although a magistrate judge issued a warrant for Shalhoub's arrest the day he was indicted, Shalhoub has not been arrested, and the district court listed him a "fugitive from justice."

In 2015, Shalhoub moved to allow his counsel to appear specially and seek dismissal of the indictment. Shalhoub argued that the indictment lacked factual specificity; that the International Parental Kidnapping Crime Act contravenes the laws of Saudi Arabia where the alleged kidnapping occurred; that the Southern District of Florida is an improper venue; that comity cautions against prosecuting conduct that occurred in another country; and that the prosecution violates Shalhoub's right to a speedy trial. He also argued that the district court should not invoke the doctrine that "disentitles [a fugitive] to call upon the resources of [a c]ourt for determination of his claims." Molinaro v. New Jersey , 396 U.S. 365, 366, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970). Shalhoub asserted that he is not a fugitive from justice because he was living in Saudi Arabia when he was indicted and did not flee the United States. He also argued that application of the fugitive disentitlement doctrine violates his right to due process because the district court labelled him a "fugitive" without an opportunity to be heard.

The district court denied Shalhoub's motion without prejudice to his right to appear and seek dismissal of his indictment. The district court explained that the fugitive disentitlement doctrine barred Shalhoub's motion because, although Shalhoub was living abroad when indicted, Shalhoub "constructively fle[d] by not deciding to return" to the United States. United States v. Barnette , 129 F.3d 1179, 1184 (11th Cir. 1997). The district court also ruled that Shalhoub's right to due process had not been violated and declined to exercise its discretion to circumvent application of the doctrine. Shalhoub appealed and, in the alternative, petitioned for a writ of mandamus.

II. STANDARDS OF REVIEW

We review de novo whether we have jurisdiction to decide an interlocutory appeal. Doe No. 1 v. United States , 749 F.3d 999, 1003 (11th Cir. 2014). "Because a writ of mandamus is an action against the district court judge, the remedy is a drastic one that only exceptional circumstances, amounting to a judicial usurpation of power, will justify." In re Coffman , 766 F.3d 1246, 1248 (11th Cir. 2014) (citation and internal quotation marks omitted) (alteration adopted). "We will issue a writ only if a petitioner establishes that he has no other adequate means to attain the relief he desires and that his right to the issuance of the writ is clear and indisputable." Id. (internal quotation marks omitted) (alteration adopted). "We also must be satisfied that the writ is appropriate under the circumstances." Id. (citation and internal quotation marks omitted).

III. DISCUSSION

The fugitive disentitlement doctrine permits a district court to "sanction or enter judgment against parties on the basis of their fugitive status." Magluta v. Samples , 162 F.3d 662, 664 (11th Cir. 1998). This doctrine accounts for "the difficulty of enforcement against one not willing to subject himself to the court's authority, the inequity of allowing [a] ‘fugitive’ to use the resources of the courts only if the outcome is an aid to him," and "the need to avoid prejudice to the nonfugitive party." Barnette , 129 F.3d at 1183. It also "discourage[s] ... flights from justice," id. , and protects the dignity of the courts, Ortega–Rodriguez v. United States , 507 U.S. 234, 241–42, 246, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993).

Shalhoub argues that application of the doctrine to his motion was error. He requests that we reverse and remand for the district court to rule on the merits of his motion. As an alternative to appellate review, Shalhoub petitions for a writ of mandamus to compel the district court to rule on the merits of his motion.

We divide our discussion in two parts. First, we explain that we lack appellate jurisdiction because the order denying Shalhoub's motion is not immediately appealable under either the collateral order doctrine or the doctrine of marginal finality.

Second, we deny Shalhoub's petition for a writ of mandamus because he has an adequate means to obtain relief—appearance in the district court—and his right to the writ is not clear and indisputable.

A. We Lack Appellate Jurisdiction over Shalhoub's Appeal.

Courts of appeals have jurisdiction over "final decisions of the district courts of the United States." 28 U.S.C. § 1291. The "final judgment rule" prohibits appellate review of a pretrial order in a criminal case "until conviction and imposition of sentence." Flanagan v. United States , 465 U.S. 259, 263, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984). We apply the final judgment rule with "utmost strictness in criminal cases," id. at 265, 104 S.Ct. 1051, unless the challenged order falls within the collateral order doctrine, which permits appellate review of an interlocutory order that (1) "conclusively determine[s] the disputed question," (2) "resolve[s] an important issue completely separate from the merits of the action," and (3) is "effectively unreviewable on appeal from a final judgment." Id. (internal quotation marks and citation omitted).

Although neither convicted nor sentenced, Shalhoub argues that we have jurisdiction under the collateral order doctrine. We disagree. We cannot expand the collateral order doctrine to permit our intermediate review of the denial of Shalhoub's motion.

The only kinds of pretrial orders in criminal cases that the Supreme Court has stated are important enough to fall within this "narrow" exception to the final judgment rule implicate "an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial." Id. at 265–67, 104 S.Ct. 1051 (internal quotation marks and citation omitted). For example, a defendant may immediately appeal the denial of a motion to dismiss an indictment, which contests the legality of prosecution on the basis of double jeopardy, because the defendant challenges "the very authority of the Government to hale him into court to face trial on the charge against him." Abney v. United States , 431 U.S. 651, 659, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). Likewise, the denial of a motion to dismiss an indictment on the basis that the Speech or Debate Clause of the Constitution, U.S. Const. Art. I, § 6, cl. 1, bars the prosecution is immediately appealable because the motion asserts a right not to be "questioned for acts done in either House [of Congress]." Helstoski v. Meanor , 442 U.S. 500, 506, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979) (citation omitted). Both double jeopardy and the Speech or Debate Clause implicate "a right not to be tried." Flanagan , 465 U.S. at 267, 104 S.Ct. 1051. The only other order that the Supreme Court has said is immediately appealable under the collateral order doctrine is an order denying a motion to reduce excessive bail, Stack v. Boyle , 342 U.S. 1, 6, 72 S.Ct. 1, 96 L.Ed. 3 (1951), because "[t]he issue is finally resolved and is independent of the issues to be tried, and the order becomes...