U.S. v. DeValle

• Citation: 894 F.2d 133
• Decision Date: 01 February 1990
• Docket Number: No. 89-2070,89-2070
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Maria Guadalupe DeVALLE, Defendant-Appellant. Summary Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 133

894 F.2d 133

UNITED STATES of America, Plaintiff-Appellee, v. Maria Guadalupe DeVALLE, Defendant-Appellant.

No. 89-2070

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Feb. 1, 1990.

Ralph R. Martinez, Houston, Tex. (Court-appointed), for defendant-appellant.

Frances H. Stacy and Paula C. Offenhauser, Asst. U.S. Attys., Henry K. Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before POLITZ, GARWOOD, and JOLLY, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Maria Guadalupe DeValle (DeValle) was convicted, following a jury trial, of conspiring, from February 6, 1988 to February 29, 1988, to transport an alien illegally within the United States, contrary to 8 U.S.C. Sec. 1324(a)(1)(B), and to harbor and shield from detection the same alien, contrary to 8 U.S.C. Sec. 1324(a)(1)(C), all in violation of 18 U.S.C. Sec. 371 (count one), and of the substantive offenses of transporting a specified alien from Brownsville to Houston on February 28, 1988, contrary to 8 U.S.C. Sec. 1324(a)(1)(B) (count two), and of concealing, harboring, and shielding the same alien from detection in a specified apartment in Houston on February 28, 1988, contrary to 8 U.S.C. Sec. 1324(a)(1)(C) (count six; the other counts in the indictment did not charge DeValle). She was sentenced to fourteen months' confinement on each of these three counts, the sentences to run concurrently; she was also sentenced to two years' supervised release following the confinement on each of the counts, the supervised release terms being concurrent with each other; and she was ordered to pay a special assessment of $150 ($50 on each count).

Because DeValle became a fugitive following her conviction, the government has moved to dismiss her appeal. We grant the motion in part and deny it in part; and we further vacate the sentence and remand for resentencing.

Procedural History

Some statement of chronology is necessary to a proper understanding of the issues presented.

In March 1988, following her arrest on the instant charges, DeValle was released on her own recognizance. The terms of her release required that she regularly report to the Pretrial Services Agency. Jury trial was held in Houston in October 1988 and DeValle, represented by counsel, was present and testified in her own behalf. The jury returned a verdict of guilty on the above-mentioned counts on October 21, 1988. Following return and acceptance of the verdict, the district court informed DeValle personally in open court that she could remain at large under her existing personal recognizance bond, but needed to make sure that she reported to the court at the appropriate times and stay in touch with her lawyer so that she could be present at the next court appearance date. The court also then advised that a presentence report would be prepared and made available, and that thereafter sentencing would likely be had in November or early December 1988.

On October 24, 1988, the court entered an order, copy of which was served on defense counsel, directing that the presentence report be completed by November 28, and made available to defense counsel and counsel for the government, who would have until December 8 to file objections, with a final presentence report to be presented December 20, and with sentencing set for January 6, 1989 at 1:30 p.m. This order also instructed DeValle to immediately report to the Probation Department in Houston.

DeValle apparently never was interviewed by the Probation Department, and failed to keep in contact with the Pretrial Services Agency as previously ordered, and accordingly on December 7, 1988, the district court issued a bench warrant for her arrest.

At the time set for sentencing on January 6, 1989, counsel for the government and for DeValle appeared, but DeValle did not. The court asked her counsel if there was "any reason" for the court to believe that she "has done anything other than voluntarily absented herself from the Court?" Her counsel replied, "[T]o be forthright, I probably have information based upon my discussions with her daughter that she, in fact, has voluntarily absconded." Because DeValle had voluntarily absented herself, the government moved that sentencing be had in her absence, under Fed.R.Crim.P. 43(b). Although recognizing that she had voluntarily absented herself, defense counsel nevertheless objected to proceeding with the sentencing in her absence, stating that "when and if she is apprehended, the Court could commence with sentencing her at that time." Counsel took the position that sentencing should be deferred at least for a few months "until she is, in fact, given a chance to be apprehended." The court nevertheless declined to postpone sentencing, and proceeded to sentence DeValle in absentia as above indicated.

At the conclusion of sentencing, DeValle's counsel informed the court that he had communicated with her "right after" the jury verdict and she did not indicate "one way or the other" whether she wanted to appeal. Counsel indicated that he would file a notice of appeal on her behalf, and the court ordered that she be allowed to appeal in forma pauperis and that her trial counsel represent her on appeal.

On January 10, 1989, DeValle's counsel filed a notice of appeal on her behalf, checking the block on the notice of appeal form indicating that the appeal was from the "Conviction and Sentence." On September 13, 1989, the record on appeal was filed with this Court. On September 28, 1989, DeValle was recaptured, apparently in Brownsville. On October 23, 1989, DeValle, through her same counsel, filed her brief on appeal. This brief challenges her sentences, but does not expressly challenge her convictions, except insofar as it suggests that the substantive offenses of transporting and harboring are actually not separate, but constitute only a single offense. On December 18, 1989, the government filed its motion to dismiss the appeal, and subsequently DeValle, through the same counsel, filed her response to this motion.

Discussion

I

It is settled that where a defendant becomes a fugitive from justice during the pendency of her appeal, the appellate court has the authority to dismiss the appeal. See United States v. Glomb, 877 F.2d 1 (5th Cir.1989). DeValle does not question this settled rule, and she does not contest the fact that she knowingly and voluntarily absented herself and became a fugitive from justice. She rather contends that the general rule is inapplicable to this case, and that we lack authority to dismiss her appeal because of two factors.

First, DeValle contends that since she was recaptured before the appeal was dismissed, indeed before the motion to dismiss was filed, we therefore lack authority to dismiss the appeal. We reject this contention. ¹ 1] While we have not previously ruled on this precise point, we have refused to reinstate appeals, previously dismissed because of fugitive status, when the fugitive is recaptured. See Estrada v. United States, 585 F.2d 742 (5th Cir.1978); United States v. Shelton, 508 F.2d 797 (5th Cir.), cert. denied, 423 U.S. 828, 96 S.Ct. 45, 46 L.Ed.2d 44 (1975). See also, e.g., Van Blaricom v. Forscht, 490 F.2d 461 (5th Cir.1974), cert. denied, 423 U.S. 915, 96 S.Ct. 222, 46 L.Ed.2d 144 (1975) (appeal dismissed subject to reinstatement if appellant returns to custody within thirty days); United States v. Eberhardt, 467 F.2d 578 (5th Cir.1972) (same). Moreover, other courts have held that recapture prior to dismissal does not bar dismissal of the appeal for the prior fugitive status. In United States v. Puzzanghera, 820 F.2d 25 (1st Cir.), cert. denied, 484 U.S. 900, 108 S.Ct. 237, 98 L.Ed.2d 195 (1987), the appellant escaped after sentencing and notice of appeal, the government then moved to dismiss the appeal, and the appellant was recaptured before the court's ruling. The court nevertheless dismissed the appeal. Similarly, in United States v. Parrish, 887 F.2d 1107 (D.C.Cir.1989); United States v. Persico, 853 F.2d 134 (2d Cir.1988); and United States v. Holmes, 680 F.2d 1372 (11th Cir.1982), cert. denied, 460 U.S. 1015, 103 S.Ct. 1259, 75 L.Ed.2d 486 (1983), the appellate courts in each case dismissed the appeal, insofar as it was from the conviction, because of the appellant's fugitive status between conviction and sentencing, notwithstanding that he had been recaptured prior to sentencing and thereafter remained in custody. A similar result was reached in United States v. London, 723 F.2d 1538 (11th Cir.), cert. denied, 467 U.S. 1228, 104 S.Ct. 2684, 81 L.Ed.2d 878 (1984), where the appellant became a fugitive during the course of trial, but was thereafter recaptured following the completion of trial and prior to sentencing. We elect to follow these decisions insofar as they hold that recapture prior to dismissal of the appeal (and indeed prior to the filing of a motion to dismiss the appeal) does not deprive the appellate court of authority to dismiss the appeal, at least as to trial proceedings completed before the appellant became a fugitive.

DeValle's second argument in this connection is that we lack authority to dismiss the appeal because her fugitive status commenced before sentencing and before appeal, while the case was still in the district court, and that her fugitive status was hence an offense against the district court rather than against this Court. In this connection, DeValle relies on United States v. Anagnos, 853 F.2d 1 (1st Cir.1988), in which the First Circuit held that it was not proper to dismiss an appeal where the appellant had become a fugitive after his conviction but was recaptured before sentencing and remained in custody thereafter. In so holding, the First Circuit declined to extend its prior holding in Puzzanghera, where fugitive status commenced after the appeal was taken and the appeal was...