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143 F.3d 508, 98
Cal. Daily Op. Serv. 3248, 98 Daily Journal D.A.R. 4527 United States Court of
Appeals, Ninth Circuit. Giancarlo PARRETTI,
Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. No. 95-56586. Argued and Submitted
En Banc Dec. 18, 1997. Decided May 1, 1998. PREVIOUS HISTORY: Judgment of May 6, 1997, amended Aug. 29, 1997, reported at 122 F.3d 758 (9th Cir.1997) withdrawn and superseded by this opinion. [*509] COUNSEL: William J. Genego, Law
Offices of William J. Genego, Santa Monica, CA, for petitioner-appellant. Nora M. Manella, U.S. Atty., Los Angeles, CA, for
respondent-appellee. Appeal from the United States District Court for the Central
District of California; James M. Ideman, District Judge, Presiding. D.C. No.
CV-95- 7593-JMI. JUDGES: Before: HUG, Chief Judge, and SCHROEDER,
PREGERSON, REINHARDT, BRUNETTI, THOMPSON, O’SCANNLAIN, T.G. NELSON, HAWKINS,
TASHIMA, and THOMAS, Circuit Judges. OPINION BY: Judge PREGERSON DISSENT BY: Judge REINHARDT OPINION: PREGERSON, Circuit Judge: I We took this case en banc to consider whether the arrest of
Giancarlo Parretti pursuant to an Extradition Treaty with France violated the
Fourth Amendment and whether his detention without bail prior to
France’s decision to request his extradition violated the Due Process
Clause of the Fifth Amendment, or, whether this appeal should be dismissed
under the fugitive disentitlement doctrine because Parretti fled the United
States while his appeal was pending before a panel of this court. Because
Parretti is a fugitive from justice, we exercise our discretion under the
disentitlement doctrine and dismiss his appeal. Therefore, we find it
unnecessary to address his constitutional claims. II In 1990, Pathe Communications Corporation, headed by Giancarlo
Parretti, an Italian resident and citizen, purchased MGM-United Artists for
$1.3 billion. As a result of this merger a new entity, MGM-Pathe Communications
Corporation, was formed. The acquisition of MGM-United Artists was highly
leveraged, and the new entity almost immediately faced cash flow problems.
Several lawsuits were filed relating to the underlying leveraged transaction
and the resulting merger. On October 9, 1995, Parretti entered the United States from Italy
to answer charges of perjury in connection with one of these [*510] suits filed in
Delaware Superior Court, and to be deposed in connection with another suit
filed in Los Angeles Superior Court. The next day, France forwarded a
diplomatic note to the U.S. Department of State requesting Parretti’s
“provisional arrest” pursuant to Article IV of the Treaty of
Extradition between the United States and France, Jan. 6, 1909, U.S.-Fr., 22
U.S.T. 407, as amended, Feb. 12, 1970, T.I.A.S. 7075, so that he might be held
in custody until France decided whether to request his extradition. While in Los Angeles attending his deposition, Parretti was arrested
based on allegations made in a French arrest warrant charging Parretti with
extraditable offenses arising from the MGM-Pathe Communications Corporation
merger. [FN1] After his arrest, Parretti was held without bail while the French
government decided whether to request extradition. Parretti filed an
application to be released on bail pending France’s extradition
request. The district court denied Parretti’s application for bail
even though the court believed that Parretti was not a flight risk. Parretti
subsequently filed a petition for a writ of habeas corpus, which the district
court also denied. FN1. Parretti was arrested pursuant to a
warrant issued by a United States Magistrate Judge on the basis of allegations
contained in a “Complaint for Provisional Arrest Warrant”
sworn to on information and belief by an assistant United States Attorney
(“AUSA”) for the Central District of California,
“acting on behalf of the Government of France.” The AUSA
alleged that Parretti had been charged in an international arrest warrant
issued in France on May 3, 1995. The French warrant charged that Parretti had
committed various offenses arising from his alleged looting of the French
company Europe Image Distribution, one of MGM-Pathe’s subsidiaries;
that each of the offenses charged in the French warrant was an extraditable
offense under the treaty; and that France had requested Parretti’s
“provisional arrest” under Article IV of the treaty. Parretti then filed a motion under Ninth Circuit Rule 27-3 seeking
emergency review. On November 21, 1995, we granted Parretti’s motion
for emergency review and ordered him released. Our ruling was based on two
grounds. First, we found that Parretti’s arrest violated the Fourth
Amendment because the government failed to make the required evidentiary
showing of probable cause to believe he had committed an extraditable offense.
Second, we held that Parretti’s detention without bail violated the
Due Process Clause of the Fifth Amendment in light of the district
court’s finding that he was not a flight risk. We required Parretti to
surrender any passports in his possession to the district court and to obtain
the district court’s consent before leaving the County of Los Angeles. In January 1997, thirteen months after Parretti was released,
Parretti fled the United States. On May 6, 1997, our court filed an opinion
that set forth in detail our reasons for granting Parretti’s petition
for habeas relief and petition for release pending France’s decision
to request his extradition. See Parretti v. United States, 122 F.3d 758 (9th
Cir.1997). III The Supreme Court has “consistently and unequivocally
approve[d] dismissal as an appropriate sanction when a prisoner is a fugitive
during the ongoing appellate process.” Ortega-Rodriguez v. United
States,
507 U.S. 234, 242, 113
S.Ct. 1199, 1204-05, 122 L.Ed.2d 581 (1993) (internal quotations omitted). The
fugitive disentitlement doctrine empowers us to dismiss the appeal of a
defendant who flees the jurisdiction of the United States after timely
appealing. An appellate court’s power to disentitle a fugitive from
access to the appellate process is grounded in equity. See United States v.
Sharpe,
470 U.S. 675, 681 n. 2,
105 S.Ct. 1568, 1572 n. 2, 84 L.Ed.2d 605 (1985); see also United States v.
Van Cauwenberghe, 934 F.2d 1048, 1054 (9th Cir.1991) (noting that the equitable
doctrine of fugitive disentitlement is one of long standing). Our court has
exercised its discretion and dismissed the appeal of a criminal defendant who
became a fugitive from justice while his appeal was pending. See United
States v. Freelove, 816 F.2d 479, 480 (9th Cir.1987) (court ordered that the pending
appeal of a fugitive be dismissed unless he surrendered to authorities within
forty-two days of date of the order); cf. [*511] Hussein v. INS, 817 F.2d 63 (9th Cir.1986)
(court refused to hear pending appeal when petitioner escaped from federal
custody after filing of appeal). Several rationales that underlie the fugitive disentitlement
doctrine apply to this appeal. First, although Parretti’s status as a
fugitive does not “strip the case of its character as an adjudicable
case or controversy,” it does disentitle him from calling upon the
resources of the court to resolve his claims. Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct.
498, 498-99, 24 L.Ed.2d 586 (1970) (per curiam). By fleeing the jurisdiction of
the United States, Parretti forfeited his right to appellate review under the
fugitive disentitlement doctrine. See id. at 366, 90 S.Ct. at 498-99. Second, Parretti has fled the United States. He remains a fugitive
beyond the reach of this court’s jurisdiction. If we were to reach the
merits of Parretti’s constitutional claims and affirm the district
court, such a decision could not secure Parretti’s presence before the
district court, nor could it assure that any “judgment … issued
would prove enforceable.” Ortega-Rodriguez, 507 U.S. at 239-40,
113 S.Ct. at 1203-04 (noting that it is within a court’s discretion to
refuse to hear a criminal case when the defendant fugitive cannot be made to
respond to any ruling) (citing Smith v. United States, 94 U.S. 97, 24 L.Ed. 32
(1876)); cf. Katz v. United States, 920 F.2d 610, 612 (9th Cir.1990) (holding
that the disentitlement doctrine was inapplicable because the defendant who
sought judicial relief was no longer a fugitive), abrogated on other grounds by
Lozada v. Deeds, 964 F.2d 956 (9th Cir.1992). Third, “dismissal by an appellate court after a defendant
has fled its jurisdiction serves an important deterrent function and advances
an interest in efficient, dignified appellate practice.” Ortega-Rodriguez, 507 U.S. at 242, 113
S.Ct. at 1204-05 (citing Estelle v. Dorrough, 420 U.S. 534, 537, 95
S.Ct. 1173, 1175-76, 43 L.Ed.2d 377 (1975)). Fourth, the adversary character of criminal litigation may be
compromised when the defendant is a fugitive. See Sharpe, 470 U.S. at 724, 105
S.Ct. at 1595-96 (Stevens, J., dissenting). A defendant’s flight
threatens the effective operation of the appellate process because the
fugitive’s counsel may have little or no incentive to represent his
client should further proceedings be necessary. IV In light of Parretti’s decision to flee the United States
while this appeal was pending, we withdraw the panel opinion, 122 F.3d 758, and
we exercise our discretion under the fugitive disentitlement doctrine and
dismiss his appeal. APPEAL DISMISSED. REINHARDT, Circuit Judge, dissenting: In this case, the court faces two extremely important issues that
warrant our most thorough consideration. The positions advanced by the
government on both constitutional questions are remarkable and should be
examined with the greatest of care. In doing so, we should bear in mind that
what the government tells us it can do to a foreign citizen in this case, it
can just as easily do to a United States citizen in the next. [FN1] FN1. For a discussion of treaties permitting
the extradition of United States citizens, see Parretti v. United States, 122 F.3d 758, 785-86
(9th Cir.1997) (Reinhardt, J., concurring). First, the government maintains that when a foreign country simply
suggests that it is considering requesting extradition, the United States
government can arrest the person without a showing of probable cause and keep
him locked up for months without bail. This position is at odds with one of our
most basic constitutional principles--that the government cannot seize a person
off the streets (or from a lawyer’s office) and deny him his liberty
without first showing probable cause to believe he has engaged in criminal
activity. The government’s contention that probable cause in the
context of a provisional arrest is merely probable cause to believe that a
foreign country has issued an arrest warrant is plainly incorrect. Such a
showing would never, in any other circumstances, suffice to support the arrest
of a person in this country, and there is no reason why it should suffice in
the case of provisional arrests. [*512] As to the bail issue, the government relies on cryptic
language in an ambiguous case written by the Supreme Court almost 100 years ago
for its argument that an almost irrebuttable presumption against bail exists in
extradition cases. See Wright v. Henkel, 190 U.S. 40, 23 S.Ct. 781,
47 L.Ed. 948 (1903). By failing to address the government’s argument,
we leave this circuit’s law on the bail issue exactly where it was
before this case--in total disarray. See, e.g., In re Kirby, 106 F.3d 855 (9th
Cir.1996) (finding special circumstances existed for the remarkable reason that
the potential extraditees, IRA terrorists, “enjoy the sympathy and are
objects of concern of many Americans”). The fallacy in the government’s positions is amply
demonstrated in the panel’s majority opinions, which I adopt in full;
they still accurately set forth the law. Notwithstanding the compelling nature
of the constitutional issues, however, the majority has avoided deciding them
by invoking the fugitive disentitlement doctrine under the most unusual of
circumstances. Because the doctrine is inapplicable to the circumstances
presented here, it is this court’s duty to reach the merits of the
case. Accordingly, I dissent. I briefly review the procedural history of this case in order to
demonstrate why applying the fugitive disentitlement doctrine in this case is
unusual and serves no purpose. On October 18, 1995, Giancarlo Parretti was
arrested by federal agents, pursuant to a warrant issued by a United States
Magistrate Judge on the basis of allegations that an international warrant had
been issued against him in France. On the basis of a letter from the government
of France indicating that it would seek Parretti’s extradition, the
magistrate judge denied bail and ordered that he be detained pending the
extradition hearing. Parretti filed a petition for habeas corpus in the district
court, arguing that his prolonged detention was unconstitutional. On November
9, the district court denied the petition. Soon thereafter, Parretti filed an emergency motion with this
court. On November 21, after Parretti had been incarcerated for 33 days, a
panel of this court heard oral argument and ordered his immediate release on
two independent grounds. First, the panel found that Parretti’s arrest
violated the Fourth Amendment because it was effected without a showing of
probable cause to believe that he had committed an extraditable offense.
Second, the panel concluded that Parretti’s continued detention
violated his Fifth Amendment right to due process because the district court
specifically found that he presented neither a risk of flight nor a danger to
the community. In a published opinion issued subsequently, the panel elaborated
fully on its reasons for granting Parretti’s emergency motion. After the panel issued its order, but prior to the time the panel
issued its full opinion, the district court implemented the order and Parretti
was released on bail. Eight days after his release, the government, at the
behest of France, filed a formal request for Parretti’s extradition,
at which time the district court made the requisite probable cause finding. The
government did not, however, seek to have Parretti taken into federal custody
again. Instead, sometime afterwards, jurisdiction over Parretti was assumed by
the state of Delaware. He was then tried and convicted on criminal charges in a
Delaware state court. Pending sentencing on these offenses, Parretti fled the
Delaware court’s jurisdiction. Thereafter, the panel’s full
opinion was released, and the government sought and we granted, at its
suggestion, rehearing en banc because of the government’s objections
to the content of the panel’s decision on the constitutional
questions. Parretti has, of course, obtained all the relief he ever desired
from the court and seeks nothing further. In light of these procedural and factual circumstances, it is
clear that the fugitive disentitlement doctrine has no applicability. Indeed,
neither party has urged the court to invoke the doctrine and both parties agree
that the doctrine has no relevance to the case. [FN2] The purpose of the
doctrine is to deny *513 to those who have fled the court’s
jurisdiction any benefits of the court system. Here, Parretti received all the
relief he could possibly obtain prior to fleeing and he seeks no further
benefit from the court. Our dismissal of the case will deny Parretti
nothing--it is only the government that seeks relief now, and it seeks relief
not from the order we issued, but from the precedential effect of our opinion
on the serious constitutional questions that arise in many extradition cases.
The fugitive disentitlement doctrine makes sense only when we deny the fugitive
some form of relief from the court, not when we frustrate our own ability to
resolve critical constitutional questions. In the words of the Supreme Court,
as quoted by the majority, maj. op. at 510, the doctrine makes sense only as a
“sanction” against the defendant. [FN3] FN2. Nor has either party argued mootness as a
ground for dismissal, because as the majority’s opinion concedes, that
doctrine is inapplicable. The circumstances in this case present a classic
situation involving a constitutional question that is “capable of
repetition, yet evading review.” Honig v. Doe, 484 U.S. 305, 318-23, 108
S.Ct. 592, 601-04, 98 L.Ed.2d 686 (1988). Because of the time limitations
inherent in the brief provisional arrest period, any case involving such an
arrest will become moot before it can run the normal judicial course. In this
case, for example, which was originally filed as an emergency motion, the panel
did not issue its order until Parretti had already been in jail for 33 days;
however, the initial detention period would have expired seven days later. In addition, there is a reasonable likelihood
that Parretti could be subject to the same violation in the future. Although he
is currently a fugitive, there is reason to expect that he may one day return
to the United States. Parretti is, after all, an international financier with
significant business interests in this country. And, if he returns, he will
undoubtedly face another round of arrests. So far as the record reveals,
incidentally, the government of France has never obtained jurisdiction over
him. Accordingly, the case is not moot. FN3. The majority also relies on Justice
Stevens’s dissenting opinion in United States v. Sharpe, 470 U.S. 675, 724, 105
S.Ct. 1568, 1595-96, 84 L.Ed.2d 605 (1985) (Stevens, J., dissenting), for the
proposition that dismissal is appropriate in light of the risk that
“the adversary character of criminal litigation may be compromised
when the defendant is a fugitive.” Maj. op. at 511. Fortunately, that
potential was not realized in this case, nor was it realized in Sharpe, in
which the eight other Justices remained unpersuaded by that argument. See id. at 681 n. 2, 105
S.Ct. at 1573 n. 2 (noting that the Court ordered briefing from amicus curiae
in opposition to the government’s position). Here, Parretti’s
counsel agreed to continue his representation in spite of his client’s
flight, and has served as the government’s very able adversary
throughout the litigation. As the majority’s opinion amply demonstrates, the
fugitive disentitlement doctrine is properly invoked only in cases in which the
defendant seeks to benefit from the use of our limited judicial resources. That
is not the case here. I therefore dissent. Briefs • Appelleeֻs
Supplemental Brief (Nov. 24, 1997) |