United States v. Emery

• Decision Date: 19 November 2021
• Docket Number: 19-3752
• Parties: United States of America, Plaintiff - Appellee v. Steven William Emery, Defendant-Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

United States of America, Plaintiff - Appellee
v.
Steven William Emery, Defendant-Appellant

No. 19-3752

United States Court of Appeals, Eighth Circuit

November 19, 2021

Submitted: November 19, 2020

Appeal from United States District Court for the District of South Dakota - Pierre

Before SHEPHERD, STRAS, and KOBES, Circuit Judges.

STRAS, Circuit Judge.

Steven Emery remains at large after escaping from a residential reentry center just over four months ago. Having given him a chance to surrender and respond to an order to show cause, we now exercise our discretion and dismiss the appeal under the fugitive-disentitlement doctrine.

1

The doctrine, also known as the fugitive-dismissal rule, has deep roots in American law. See State v. Hentges, 844 N.W.2d 500, 502-05 (Minn. 2014) (tracing the rule's origins and its history). Maine was the first state to adopt it, and it was introduced into federal law in 1876. See id. at 502; see also Smith v. United States, 94 U.S. 97, 97-98 (1876). "[F]or well over a century," it has allowed courts to "dismiss the appeal of a defendant who is a fugitive from justice." United States v. Diaz, 980 F.3d 618, 619 (8th Cir. 2020) (per curiam) (quoting Ortega-Rodriguez v. United States, 507 U.S. 234, 239 (1993)). In many ways, Emery's situation is a classic one for disentitlement: he escaped from custody and refuses to return. See id.

But this case is unique in one respect. The last time we confronted this situation, the government filed a motion to dismiss in response to our request for supplemental briefing. See id. In this case, by contrast, the government has not responded. Given this procedural difference, we must answer the question that we left open before: can we dismiss this case on our own without input from the government? See id. For two reasons, we conclude that the answer is yes.

First, we have all but said so. Pointing to several cases, we recently noted that "our sister circuits" have suggested that "we may dismiss sua sponte" in circumstances like this one. Id. (citing Motorola Credit Corp. v. Uzan, 561 F.3d 123, 130 n.7 (2d Cir. 2009); Williamson v. Recovery Ltd., 731 F.3d 608, 628 n.6 (6th Cir. 2013); F.D.I.C. v. Pharaon, 178 F.3d 1159, 1163 n.6 (11th Cir. 1999)). In one case, the Ninth Circuit, sitting en banc, even exercised its discretion to dismiss over the government's objection. See Parretti v. United States, 143 F.3d 508, 511 (9th Cir. 1998) (en banc).

Although acting on our own...