U.S. v. Puzzanghera, 86-1317

• Decision Date: 09 June 1987
• Docket Number: No. 86-1317,86-1317
• Citation: 820 F.2d 25
• Parties: UNITED STATES of America, Appellee, v. Paul PUZZANGHERA, a/k/a Paul Corvo, a/k/a Paul Gera, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 25

820 F.2d 25

UNITED STATES of America, Appellee, v. Paul PUZZANGHERA, a/k/a Paul Corvo, a/k/a Paul Gera Defendant, Appellant.

No. 86-1317.

United States Court of Appeals First Circuit.

Argued Feb. 4, 1987.

Decided June 9, 1987.

James B. Dolan, Boston, Mass., by Appointment of the Court, with whom Badger, Sullivan, Kelley & Cole, Boston, Mass., was on brief, for defendant, appellant.

Deborah A. Ramirez, Asst. U.S. Atty., with whom Robert S. Mueller, III, U.S. Atty., Boston, Mass., was on brief, for appellee.

Before CAMPBELL, Chief Judge, ALDRICH and SELYA, Circuit Judges.

LEVIN H. CAMPBELL, Chief Judge.

Paul Puzzanghera was convicted after a jury trial in the United States District Court for the District of Massachusetts of conspiracy and mail fraud. Evidence at the trial revealed a scheme in which Puzzanghera and others tricked legitimate concerns that were in the business of supplying temporary technical personnel to send salary checks made out to what were in fact fictitious employees. Using phony endorsements, defendants then deposited the checks to bank accounts they controlled.

On March 12, 1986, the court sentenced Puzzanghera to a three-year prison term. Having appealed to this court, Puzzanghera commenced to serve the sentence at FCI Danbury, Connecticut, on April 9, 1986. The appeal proceeded slowly for a variety of reasons, including the defense's need for additional time to file a statement of issues, and then its brief. On February 4, 1987, this court heard argument on Puzzanghera's appeal which it took under advisement. On that same date Puzzanghera left prison, ostensibly for a day's furlough he had received. He did not return. An arrest warrant was issued, and the government moved to dismiss Puzzanghera's appeal with prejudice on the ground that he had escaped. Puzzanghera's attorney filed an opposition.

After receipt of the government's initial motion and the opposition, this court directed the government to file a more adequate supporting affidavit attesting to the escape and indicating whether Puzzanghera remained at large.

On March 11, 1987, Puzzanghera was apprehended by federal authorities in Nashville, Tennessee, where, according to an FBI agent's affidavit since filed, he was using the name Paul Romano, having also used other false names in the past month, and having written bad checks on bank accounts in Connecticut, Indiana, Kentucky and Tennessee.

Thereafter, Puzzanghera filed a further opposition to the government's motion to dismiss the appeal, pointing out that he was returned to custody and that, "the reasons for which an appeal may be dismissed therefore no longer exist, and the motion is rendered moot." On April 1, 1987, Puzzanghera pled guilty to an information charging him with escape in violation of 18 U.S.C. Sec. 751(a) (1982). ¹ We are told that he has since filed a motion to withdraw the guilty plea.

On April 2, 1987, this court entered an order for the parties to file memoranda addressed to, "among other things, whether an escape for the period in issue, terminated in this manner ... constitutes grounds for dismissal of an appeal." Memoranda as directed were subsequently filed together with affidavits from the government detailing Puzzanghera's escape and subsequent apprehension.

If Puzzanghera were still at large, there could be no question that this court, in its discretion, could and normally would dismiss the appeal. In Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970), the Supreme Court held that "[no] persuasive reason exists" why it should proceed to adjudicate the merits of a criminal case after the convicted defendant who had sought review had escaped. Id. at 366, 90 S.Ct. at 498. The Court said,

While such an escape does not strip the case of its character as an adjudicable case or controversy, we believe it disentitles the defendant to call upon the resources of the Court for determination of his claims.

Id. at 366, 90 S.Ct. at 498. Accord United States v. Amado, 754 F.2d 31 (1st Cir.1985).

After an appellant has escaped, this court will normally require the government to establish the fact of voluntary escape by filing a satisfactory affidavit from the warden of the institution from which the escape took place, or from some other person with official responsibility for appellant's safekeeping. Before finally dismissing the appeal, we will want it to be established that appellant has been at large for a significant period of time. United States v. Tremont, 438 F.2d 1202, 1203 (1st Cir.1971). We shall regard an absence of 30 days as minimally sufficient. Dismissal will ordinarily be with prejudice.

While an appellate court's right to dismiss the appeal of an escapee still at large is clear, the law is less clear as to its right to dismiss an appeal when, prior to dismissal, the escaped appellant has been returned to custody. Because the Court in Molinaro said that an escapee was "disentitled" to call on the resources of the court, and because no suggestion was there made that an escapee's right of appeal, once dismissed, should be restored upon his return to custody, it can be argued that there is no good reason why recapture should restore the status quo ante. Escape, pursuit, and recapture not only put the government and the taxpayers to considerable expense, they often put a reviewing court to additional trouble, as here, by diverting its attention from the merits of the appeal and involving it in a flurry of extraneous matters. In escaping, appellant has demonstrated his contempt for the justice system of which the appellate court is one part. Merely because--no thanks to him--he is recaptured, it is not evident that he regains the right to review that he earlier forfeited. It is well established that there is no constitutional right to appellate review even in criminal cases. See, e.g., McKane v. Durston, 153 U.S. 684, 687, 14 S.Ct. 913, 914, 38 L.Ed. 867 (1894); Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956).

There are, to be sure, contrary arguments. A reason sometimes given for denying the right of appellate review to an at-large prisoner is that the prisoner has, by his actions, arrogated to himself the right not to respond to an unfavorable decision. United States v. Gordon, 538 F.2d 914, 915 (1st Cir.1976), cert. denied, 441 U.S. 936, 99 S.Ct. 2060, 60 L.Ed.2d 665...