U.S. v. Genoa
| Decision Date | 22 February 1995 |
| Docket Number | No. 93-2292,93-2292 |
| Citation | 47 F.3d 1171 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Lawrence GENOA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before: RYAN and SILER, Circuit Judges; and DOWD, District Judge. *
This appeal presents the threshold question, triggered by the government's motion to dismiss, of what appellate rights the appellant retains because of his fugitive status for nearly 38 months following his conviction and prior to his sentence.
Lawrence Genoa, the appellant, was one of 21 defendants indicted for conspiracy to distribute cocaine. Fifteen of those defendants entered guilty pleas. The remaining six, including Genoa, went to trial. Genoa and three codefendants, George Katsakis, Jesse Kincaid and Brian McLennan, were tried together and convicted by a jury on October 17, 1989. 1 Genoa, free on a $500,000 personal bond, failed to appear for his January 31, 1990 sentencing and a warrant for his arrest was issued. Genoa's three codefendants were sentenced however, and their convictions affirmed following a consolidated appeal. United States v. Katsakis, 976 F.2d 734 (table), 1992 WL 232491 (6th Cir. Sept. 21, 1992), cert. denied, --- U.S. ----, 113 S.Ct. 1335 (1993).
On March 23, 1993 Genoa was apprehended in Denver, Colorado. He subsequently entered a guilty plea on August 25, 1993 for failing to appear in violation of 18 U.S.C. Sec. 3146. The district court sentenced Genoa to concurrent prison terms of 286 months for conspiracy to distribute cocaine and 240 months for possession with intent to distribute pursuant to the 1988 Sentencing Guidelines. The district court added a consecutive term of six months on the bond jumping charge. Genoa appealed both his conviction and sentence and the Government has moved to dismiss.
The analysis required by Guideline sentencing prevents sentencing at the time of conviction where the issues of guilt are subject to jury trial. As a consequence, many convicted defendants remain free on bond pending the completion of the pre-sentence report and the imposition of the sentence. When a defendant in such a condition--convicted, but unsentenced and free on bond--fails to report for sentencing and flees, the issue arises as to what extent the fugitive-defendant, convicted but unsentenced, has lost his right to appeal his conviction.
The United States Supreme Court in Ortega-Rodriguez v. United States, --- U.S. ----, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993) has clarified the circumstances when a federal court of appeals may dismiss an appeal because the appellant is a fugitive from justice following conviction but before sentencing. In Ortega-Rodriguez the defendant fled following his conviction, but was sentenced in absentia along with several codefendants who had appeared. Id. at ----, 113 S.Ct. at 1202. Authorities apprehended defendant after 11 months and he was indicted for his failure to appear. While defendant was under indictment after his arrest, the court of appeals resolved the appeals of his two codefendants. The appeals court reversed one conviction based on insufficiency of evidence, but affirmed the other because the second defendant had made an additional post-arrest statement which was used against him. Id. at ----, 113 S.Ct. at 1202 & n. 6. "On appeal, [defendant] argued that the same insufficiency of evidence rationale underlying reversal of his codefendant's conviction should apply in his case, because precisely the same evidence was admitted against the two defendants." Id. at ----, 113 S.Ct. at 1203.
In invalidating any per se application of an appellate dismissal rule for conduct before the district court, the Ortega-Rodriguez Court was careful to note that the power of appellate courts to dismiss appeals because of an appellant's fugitive status did not rest solely on "enforceability concerns," but rested in part on a " 'disentitlement' theory." Id. at ----, 113 S.Ct. at 1203-04 (). Since a convict who is recaptured before sentencing would be amenable to any judgment that a court of appeals would render, an application of the traditional "enforceability" doctrine, which ensures only that an appellate judgment would prove enforceable against the party who joined the appeal, would leave a court without a principled basis upon which to dismiss an appeal. See Ortega-Rodriguez, --- U.S. at ----, 113 S.Ct. at 1203-04 & 1206 (). Instead, the Supreme Court held that in the appropriate case defendant's fugitive status before the district court might have such a "connection" with the "substantial interests" of the appellate tribunal that the sanction of the dismissal of the appeal would be a reasonable response because in such a case defendant's misconduct before the district court " 'disentitles the defendant to call upon the resources of the Court for determination of his claims.' " Id. at ----, 113 S.Ct. at 1204, 1208 & 1209 ().
The Supreme Court explained, "some actions by a defendant, though they occur while his case is before the district court, might have an impact on the appellate process sufficient to warrant an appellate sanction." Id. at ----, 113 S.Ct. at 1208. For example, "a long escape, even if ended before sentencing and appeal, may so delay the onset of appellate proceedings that the Government would be prejudiced in locating witnesses and presenting evidence at retrial after a successful appeal;" or "misconduct at the district court level might somehow make 'meaningful appeal impossible,' or otherwise disrupt the appellate process so that an appellate sanction is reasonably imposed." Id. at ----, 113 S.Ct. at 1208-09 (citations omitted). In addition, where defendant's "flight prevent[s] the Court of Appeals from consolidating his appeal with those of his codefendants, ... [where such is] its normal practice," and where the appellate court "deems this consequence of [defendant's] flight a significant interference with the operation of its appellate process, then ... a dismissal rule could properly be applied." Id. at ----, 113 S.Ct. at 1209 (citations omitted).
Other circuits have addressed this problem. In United States v. Bravo, 10 F.3d 79 (2d Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1386 (1994), the Second Circuit held that a defendant who was a fugitive for fifteen years following his conviction was precluded from asserting any claims which could result in a new trial pursuant to the disentitlement doctrine outlined in Ortega-Rodriguez. Bravo, 10 F.3d at 84-85. The Bravo court noted that the interim dissipation of evidence would prejudice the government's ability to retry the case, and defendant's flight prevented the consolidation of his appeal with that of his codefendant. 10 F.3d at 85.
In United States v. Sudthisa-Ard, 17 F.3d 1205 (9th Cir.1994), petition for cert. filed, 63 U.S.L.W. 3092 (U.S. June 17, 1994 (No. 94-162), defendant fled following his conviction for conspiracy and the illegal importation of heroin, but was recaptured after thirteen years. The Ninth Circuit held that pursuant to the disentitlement doctrine defendant would not be permitted to appeal his conviction even though the timely appeal by his codefendant resulted in the reversal of that codefendant's conviction. The court reasoned that because defendant's thirteen-year flight prohibited the government from retrying the case because of the dissipation of evidence and because defendant's flight prohibited the consolidation of appeals requiring "unnecessary duplication of effort and expenditure of resources," a dismissal was proper. 17 F.3d at 1207.
In United States v. Rosales, 13 F.3d 1461 (11th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 634 (1994) defendant's flight caused the passage of approximately one year between his conviction and sentencing. The Eleventh Circuit held that dismissal of defendant's appeal would be proper because the lapse of time unduly burdened the government in the event that retrial was necessary and because of the resultant significant interference with the judicial process. 13 F.3d at 1463.
In United States v. Reese, 993 F.2d 254 (D.C.Cir.1993) defendant was a fugitive for five years between his conviction and his sentencing. The District of Columbia Circuit held that since defendant's flight prevented the consolidation of his appeal with that of his codefendants, he would not be permitted to take a belated appeal of his conviction because of the significant interference with the operation of the appellate process. 993 F.2d at 256. However, in United States v. Ortega-Rodriguez, 13 F.3d 1474 (11th Cir.1994), on remand from Ortega-Rodriguez v. United States, --- U.S. ----, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993), the Eleventh Circuit refused to dismiss defendant's appeal where defendant challenged his conviction on mere insufficiency of evidence grounds. As retrial would be unnecessary if defendant prevailed on appeal and since a similarly situated codefendant had been acquitted based on the same insufficiency of evidence challenge, the resolution of defendant's appeal did not result in any undue burden on the government, and did not result in a significant interference with the operation of the appellate process. 13...
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U.S. v. Smith
...have applied the doctrine in circumstances similar to the present appeal. See, e.g., United States v. Genoa, 47 F.3d 1171, No. 93-2292, 1995 WL 73291, at *4 (6th Cir. Feb.22, 1995) (unpublished) (dismissing the appeal of a defendant who was a fugitive for three years because his appeal coul......