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70 F.3d 621, 64
USLW 2365, 315 U.S.App.D.C. 60, 76 A.F.T.R.2d 95-7761, 95-2 USTC P 50,626 Briefs and Other
Related Documents United States Court of
Appeals, District of Columbia Circuit. Johnny
DACCARETT-GHIA, Alleged Alter Ego or Nominee of Friko Corporation, Appellant,
v. COMMISSIONER OF INTERNAL REVENUE SERVICE, Appellee. No. 95-1029. Argued Nov. 3, 1995. Decided Nov. 28, 1995. Rehearing Denied March
6, 1996. [*622] [**61] COUNSEL:
Isidoro
Rodriguez, Barranquilla, Columbia, argued the cause and filed the brief for
appellant. Sally J. Schornstheimer, Attorney, United States Department of
Justice, argued the cause for appellee, with whom Loretta C. Argrett, Assistant
Attorney General, Gary R. Allen and Gilbert S. Rothenberg, Attorneys, Washington,
DC, were on the brief. JUDGES: Before: EDWARDS, Chief Judge, WALD and ROGERS,
Circuit Judges. Opinion for the Court filed by Circuit Judge WALD. OPINION BY: WALD, Circuit Judge: This case concerns the proper scope of the “fugitive
disentitlement doctrine” in light of the Supreme Court’s
decision in Ortega-Rodriguez v. United States, 507 U.S. 234, 113 S.Ct.
1199, 122 L.Ed.2d 581 (1993). In the proceedings below, the Tax Court dismissed
appellant’s petition for redetermination of certain taxes that he
allegedly owes the federal government. It did so because appellant has not
appeared in a New Jersey federal court to answer a criminal indictment that
involves the same funds as the tax obligation. We reverse. While we agree with
the Tax Court’s conclusion that the subject matters of the criminal
and tax proceedings are related, Ortega-Rodriguez requires something more, a
connection between appellant’s failure to appear in the criminal
matter and the conduct of the Tax Court’s proceedings. In this case,
however, there is nothing in the record to show that appellant’s
failure to appear has had any adverse effect either on the Tax Court institutionally
or on appellee Commissioner of the Internal Revenue Service as a litigant. The
Tax Court therefore had no authority to dismiss the petition. I. BACKGROUND A. The Fugitive Disentitlement Doctrine In several cases, the Supreme Court has recognized that a court
may dismiss a fugitive’s criminal appeal. The first of these was Smith
v. United States, 94 U.S. 97, 24 L.Ed. 32 (1876), in which the Court concluded
that the appeal was essentially moot because any judgment would be
unenforceable against the absent defendant. See also Eisler v. United States, 338 U.S. 189, 69 S.Ct.
1453, 93 L.Ed. 1897 (1949); Bonahan v. Nebraska, 125 U.S. 692, 8 S.Ct.
1390, 31 L.Ed. 854 (1887). Nearly one hundred years later, the Court in Molinaro
v. New Jersey, 396 U.S. 365,
366, 90 S.Ct. 498, 498-99, 24 L.Ed.2d 586 (1970) (per curiam), reasoned that
“[w]hile 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.”
Additional rationales for the fugitive dismissal were later set forth in Estelle
v. Dorrough, 420 U.S. 534,
95 S.Ct. 1173, 43 L.Ed.2d 377 (1975), in which the Court rejected a
constitutional challenge to Texas’ fugitive-dismissal statute. The
Justices sustained the statute on the grounds [*623] [**62] that it both
discouraged escape and “promote[d] the efficient, dignified operation
of the Texas Court of Criminal Appeals.” Id. at 537, 95 S.Ct. at
1175-76. None of those decisions, however, expressly articulated the
underlying authority for this practice, which has come to be known as the
fugitive disentitlement doctrine. The first, and only, Supreme Court decision
to do so was Ortega-Rodriguez v. United States, 507 U.S. 234, 113 S.Ct.
1199, 122 L.Ed.2d 581 (1993). In that case, the Eleventh Circuit had dismissed
the criminal appeal of an individual who, while he had been a fugitive at one
point during the district court proceedings, was back in custody at the time he
filed his appeal. The Supreme Court vacated and remanded the case. According to
the Court, the fugitive disentitlement doctrine is not unlimited in scope, but
extends only so far as a court’s authority to control its own
proceedings, which is both an inherent power and, in the federal circuit
courts, embodied in Federal Rule of Appellate Procedure 47. The Court
characterized Smith, Molinaro, and Estelle as cases in which dismissal was
justified because the appellant’s fugitive status had “some
connection” to the appellate process. It further recognized that
dismissal would be appropriate if the fugitive’s status in some way
prejudiced the government as a litigant by, for example, delaying any retrial,
in which time the memory of prosecution witnesses could fade. The Eleventh
Circuit, however, had not articulated any such connection between its
proceedings and the appellant’s status as a former fugitive, and
therefore lacked authority to dismiss the appeal. It is through the lens of Ortega-Rodriguez that we review the
Tax Court’s decision in this case. B. Facts Appellant Johnny Daccarett-Ghia is a citizen and resident of the
Republic of Colombia. In February 1990, the United States government indicted
him and several other individuals and corporations in the Federal District
Court for the District of New Jersey on charges that they had conspired to
launder the proceeds of drug sales. [FN1] A warrant was then issued for his
arrest. Though he is aware of both the indictment and the warrant,
Daccarett-Ghia has never traveled to the United States to answer them. FN1. For a fuller factual background of the
criminal and civil forfeiture proceedings, see United States v. Daccarett, 6 F.3d 37 (2d
Cir.1993), cert. denied, 511 U.S. 1030, ——,
——, 114 S.Ct. 1294, 1295, 1538, 127 L.Ed.2d 648, 128
L.Ed.2d 190 (1994), and United States v. Contents of Accounts Nos.
3034504504 and 144-07143, 971 F.2d 974 (3d Cir.1992), cert. denied, 507 U.S. 985,
113 S.Ct. 1580, 123 L.Ed.2d 148 (1993). Seeking to seize funds in U.S. financial accounts that were
allegedly deposited as part of the money-laundering scheme, the government
filed civil forfeiture actions in the District of New Jersey and the Eastern
District of New York. The New York district court eventually ruled, inter alia,
that the government could not seize one of the accounts. See United States
v. Daccarett, 6 F.3d 37, 59 (2d Cir.1993). Before the district court released
the account to its corporate owner, however, appellee Commissioner of the
Internal Revenue Service took control of it by issuing a Jeopardy Assessment,
Levy, and Notice of Deficiency against appellant Daccarett-Ghia. In assessing
Daccarett-Ghia’s tax liability, the IRS’s basic theory
proceeds along the following lines: (1) deposits into the account represent the
income of “Friko Corporation”; (2) Friko is in reality the
“alter-ego”—i.e., a front—for Daccarett-Ghia,
who is nominally its Chief Operating Officer; and (3) the funds are therefore
Daccarett-Ghia’s income, on which he failed to pay taxes. The assessed
deficiency totaled $2,093,472, excluding interest. In October 1992, Daccarett-Ghia petitioned the Tax Court for a
redetermination of the deficiency. The Tax Court, however, promptly dismissed
the petition without reaching the merits because it viewed him as a fugitive
from the New Jersey criminal indictment. Daccarett-Ghia, Alter-Ego or
Nominee of Friko Corp. v. Commissioner, Tax Ct.Dkt. No. 22854-92, 1994 WL 675537
(Dec. 5, 1994), vacated in relevant part and remanded, 26 F.3d 1139
(D.C.Cir.1994). Employing its standard practice in fugitive dismissal cases,
the Tax Court noted that it [*624] [**63] would reopen the petition if
Daccarett-Ghia appeared before the District of New Jersey within thirty days of
its decision. Id. at 3-4. While Daccarett-Ghia’s appeal was pending, the Supreme
Court issued its decision in Ortega-Rodriguez. A panel of this court then
remanded this case to the Tax Court with instructions that it consider whether
appellant’s failure to appear in the outstanding criminal case had the
requisite relationship to its proceedings. We explained: There must be “some
connection[”] … between the fugitive status of the litigant
and the court invoking the doctrine. Here, it is not apparent what the
connection was or what the Tax Court thought it was. The court whose
“dignity” has been affronted, whose authority Daccarett-Ghia
supposedly flouted, is—according to the Tax Court’s
analysis—the New Jersey federal court. Friko Corp. v. Commissioner, 26 F.3d 1139, 1143 (D.C.Cir.1994)
(emphasis added) (citation omitted). On remand, the Tax Court once again
dismissed the petition. Daccarett-Ghia, Alter Ego or Nominee of Friko Corp.
v. Commissioner, Tax Ct.Dkt. No. 22854-92, T.C.Memo. 1994- 594, 1994 WL 675537
(Dec. 5, 1994). The Tax Court held “that there is a connection between
the criminal charges pending against petitioner and the tax
deficiencies,” id. at 2, in that “the deficiencies
… are based on deposits to an account that petitioner allegedly used
to ‘launder’ the proceeds of illegal drug sales,” id. at 16. It further
concluded that Ortega-Rodriguez was limited to “the propriety of
applying the fugitive disentitlement doctrine against a defendant who was no
longer a fugitive. In contrast, petitioner in the instant case is attempting to
prosecute his petition for redetermination in this court while he remains a
fugitive from justice.” Id. at 15. Therefore, “[s]ound policy
concerns dictate that petitioner should not be permitted to selectively choose
the benefits and burdens of the U.S. legal system that will apply to
him.” Id. at 16. Once again, Daccarett-Ghia has appealed from the dismissal of his
petition. II. PRELIMINARY MATTERS Before addressing the Tax Court’s application of the
fugitive disentitlement doctrine to these facts, we examine its power as an
Article I court to invoke the doctrine in the first instance, as well as the
standard by which this Article III court reviews its decision to do so. A. The Tax Court’s Authority to Invoke the Fugitive
Disentitlement Doctrine Appellant contends that the Tax Court does not have authority to
invoke the fugitive disentitlement doctrine. As a threshold matter, we note
that appellant did not raise this issue until oral argument in the present
appeal, and can be held to have waived it unless it raises a question of
jurisdiction. Moreover, it bears noting that our previous decision in this case
assumed that the Tax Court had that power, which may constitute the law of this
case. See, e.g., McKesson Corp. v. Islamic Republic of Iran, 52 F.3d 346, 350-51
(D.C.Cir.), cert. denied, 516 U.S. 1045, 116 S.Ct. 704, 133 L.Ed.2d 660 (1996);
Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739-40 (D.C.Cir.), cert.
denied, 516 U.S. 865, 116 S.Ct. 180, 133 L.Ed.2d 118 (1995). However, because
the question is likely to recur and can be handled readily, we elect to address
the issue, and rule that the Tax Court does have such power. The Tax Court’s inherent and statutory powers to dismiss
a case in the exercise of its control over the conduct of its judicial business
have never heretofore been questioned, and we do not now conceive of any
rational basis for doing so. See, e.g., Smith v. Commissioner, 926 F.2d 1470,
1475-76 (6th Cir.1991) (approving of power to dismiss claims under Tax Court
Rule 123(b)); Ducommun v. Commissioner, 732 F.2d 752, 754 (10th Cir.) (same;
“[I]t is well established that every court has the inherent power, in
the exercise of its discretion, to dismiss a case for want of
prosecution….”), cert. denied, 464 U.S. 939, 104 S.Ct. 352,
78 L.Ed.2d 316 (1983); Conforte v. Commissioner, 692 F.2d 587, 589-90 (9th
Cir.1982) (same; fugitive disentitlement case), stay denied, 459 U.S. 1309, 103
S.Ct. 663, 74 L.Ed.2d 588 (1983) (Rehnquist, J., in chambers); see also [*625] [**64] Goldsmith v.
United States Bd. of Tax Appeals, 270 U.S. 117, 122, 46
S.Ct. 215, 217, 70 L.Ed. 494 (1926) (even before being accorded status of
Article I court, Tax Court possessed inherent powers of quasi-judicial body); Louisville
Builders Supply Co. v. Commissioner, 294 F.2d 333, 339 (6th Cir.1961) (same). Appellant’s argument to the contrary consists of an
analogy to another power of the Tax Court—the power to hold individuals
in contempt. Unlike Article III courts, which possess an inherent contempt
power, the Tax Court’s contempt authority arises from a specific
statutory grant. See 26 U.S.C. § 7456(c). Appellant reasons that,
similarly, the Tax Court is powerless to apply the fugitive disentitlement
doctrine absent express congressional authorization. Assuming arguendo that
appellant is correct in that premise, we conclude that there is statutory
authority for the Tax Court’s application of the fugitive
disentitlement doctrine. The Tax Court invokes the doctrine based on its Rule
123(b), which authorizes dismissal of a case “for … cause
which the Court deems sufficient.” See Berkery v. Commissioner, 90 T.C. 259, 265,
1988 WL 10160, vacated on other grounds, 91 T.C. 179, 1988 WL 77545 (1988),
aff’d without op., 872 F.2d 411 (3d Cir.1989); id. at 267 (Hamblen, J.,
concurring). Rule 123(b), in turn, was promulgated pursuant to 26 U.S.C.
§ 7453, which expressly provides that the Tax Court may enact rules to
govern its proceedings. Section 7453 thus, at a minimum, authorizes the Tax
Court to promulgate Rules—such as Rule 123(b)— reasonably
necessary to the orderly functioning of its own practice. When appropriately
applied in the manner we describe infra, the Tax Court’s fugitive
dismissal rule satisfies that standard. B. Our Standard of Review Having recognized the Tax Court’s power, as an Article I
court, to apply the fugitive disentitlement doctrine, we must address our
power, as an Article III court, to review its determination to do so. We noted
in our earlier decision in this case that the Tax Court is not required to
adopt the same fugitive dismissal standards that we would apply to this court
and the district court for this circuit. See Friko Corp., 26 F.3d at 1143. In
adopting its own standards, however, the Tax Court may not exceed its authority
under 26 U.S.C. § 7453, which—like Federal Rule of Appellate
Procedure 47—is limited to maintaining control over the
court’s own docket and proceedings. Compare 26 U.S.C. § 7453
(“[T]he proceedings of the Tax Court and its divisions shall be
conducted in accordance with such rules of practice and procedure … as
the Tax Court may proscribe.” (emphasis added)) with Fed.R.App.P. 47
(“Each court of appeals … may from time to time make and
amend rules governing its practice not inconsistent with these rules. In all
cases not provided for by rule, the courts of appeals may regulate their
practice in any matter not inconsistent with these rules.” (emphasis
added)). For that reason, Ortega-Rodriguez governs the Tax Court’s
invocation of the fugitive disentitlement doctrine. While the Supreme Court
there reviewed the decision of an Article III court, its reasoning applies
equally to all federal courts’ efforts to invoke the doctrine to
govern their own proceedings. [FN2] Even though the standard of review that Ortega-Rodriguez applies to dismissals
by Article III courts is reasonableness, 507 U.S. at 249-51, 113 S.Ct. at 1209,
and the standard of review for Tax Court dismissals [*626] [**65] under Rule
123(b) is “abuse of discretion,” [FN3] we discern no
substantive difference between the two tests. If the Tax Court’s
effort to protect its own docket would not be “reasonable”
under Ortega-Rodriguez, it would seem a fortiori to constitute an abuse of
discretion as well. Cf. Manzoli v. Commissioner, 904 F.2d 101, 103
(1st Cir.1990) (“When reviewing under [the abuse of discretion]
standard, we will focus on the reasons given by the court for its conclusions
to determine whether the Tax Court’s determination was
reasonable.”). FN2. Both the Tax Court and Article III courts
acknowledge that the doctrine is based on their authority to control their own
proceedings. Ortega-Rodriguez, 507 U.S. at 242-46,
& n. 15, 113 S.Ct. at 1205-06 & n. 15; Berkery, 90 T.C. at 266
(Hamblen, J., concurring) (drawing express comparison between Article III
inherent authority to dismiss fugitive’s claim and Tax Court authority
under Rule 123(b)). It is thus not surprising that the Tax Court uniformly
analyzes fugitive dismissal cases in terms of Article III precedents. E.g., Pecoraro
v. Commissioner, T.C.Memo. 1995-220, 1995 WL 311334 (1995); Coninck v.
Commissioner, 100 T.C. 495, 1993 WL 186008 (1993); Biederstadt v.
Commissioner, T.C.Memo. 1989-235, 1989 WL 49314 (1989); Berkery, supra; Vesco v.
Commissioner, T.C.Memo. 1979-369, 1979 WL 3421 (1979). Even when the Tax Court
states that it is invoking the doctrine as a matter of discretion, it cites
Article III cases. E.g., Berkery, 90 T.C. at 264 (citing Molinaro v. New
Jersey,
396 U.S. 365, 90 S.Ct.
498, 24 L.Ed.2d 586 (1970) (per curiam); Bonahan v. Nebraska, 125 U.S. 692, 8 S.Ct.
1390, 31 L.Ed. 854 (1887); Smith v. United States, 94 U.S. 97, 24 L.Ed. 32
(1876)). FN3. Noli v. Commissioner, 860 F.2d 1521, 1527
(9th Cir.1988); Miller v. Commissioner, 741 F.2d 198, 199-200 (8th Cir.1984);
Ducommun v. Commissioner, 732 F.2d 752, 753 (10th Cir.1983); Freedson v.
Commissioner, 565 F.2d 954, 955 (5th Cir.1978). Given that understanding, we now proceed to the merits of the Tax
Court’s application of the doctrine in this case. III. THE SCOPE AND LIMITS OF THE FUGITIVE DISENTITLEMENT
DOCTRINE A. Ortega-Rodriguez’s Interpretation of the Doctrine Both the Commissioner and the Tax Court contend that Ortega-Rodriguez does not restrict the
fugitive disentitlement doctrine in a situation such as this, where
Daccarett-Ghia remains a fugitive from federal prosecution even as he pursues
his petition for redetermination. They view the Ortega-Rodriguez
“connection” requirement as an alternative framework
applicable only when an individual’s fugitive status has ended. There
is an intuitive appeal to their interpretation, a recognition that one may not
“have her cake and eat it too”; i.e., that individuals should
not be able to flee the judicial system and at the same time employ it for
their own benefit. In fact, before Ortega-Rodriguez was decided, this circuit
employed that very rationale in Doyle v. United States D.O.J., 668 F.2d 1365
(D.C.Cir.1981) (per curiam), cert. denied, 455 U.S. 1002, 102 S.Ct. 1636, 71
L.Ed.2d 870 (1982), in which we affirmed a district court’s dismissal
of a civil suit because the plaintiff was a fugitive from a criminal proceeding
brought in another district. See id. at 1365- 66 (“So long as he evades
federal authority, … it is the general rule that he may not demand
that a federal court service his complaint.” (citing Molinaro v.
New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970))).
Ortega-Rodriguez, however, requires more and, we conclude, supersedes that
holding of Doyle. [FN4] See Dellums v. United States N.R.C., 863 F.2d 968, 978 n.
11 (D.C.Cir.1988) (“[I]t is black letter law that a circuit precedent
eviscerated by subsequent Supreme Court cases is no longer binding on a court
of appeals.”). FN4. Doyle did recognize one
universally applied constraint on the fugitive disentitlement doctrine.
Dismissal was appropriate in part because the fugitive’s civil suit
sought records that were “not devoid of a relationship” to
the criminal charges pending against him, i.e., the subject matters of the
civil and criminal cases were not completely divorced from each other. 668 F.2d
at 1365. Our holding in this case does not disturb that aspect of Doyle. While the facts of Ortega-Rodriguez indeed involved an individual
who was no longer a fugitive at the time he filed his appeal, the Supreme
Court’s discussion of the underlying authority for the federal
fugitive dismissal rule governs all invocations of the doctrine. As we have by
now stated several times, the Court made clear that the doctrine is grounded in
a court’s power to control its own docket and its own proceedings. If
the individual’s fugitive status has no “connection”
to the present proceedings in the sense that it neither affects the
court’s ability to carry out its judicial business nor prejudices the
government as a litigant, the claim may not be dismissed. There is no exception
to this rule for individuals who remain fugitives. The Court explained: Our review of rules adopted by the courts of
appeals in their supervisory capacity is limited in scope, but it does demand
that such rules represent reasoned exercises of the courts’ authority.
Accordingly, the justifications we have advanced for allowing appellate courts
to dismiss pending fugitive appeals all assume some connection between a defendant’s
fugitive status and the appellate process, sufficient to [*627] [**66] make an
appellate sanction a reasonable response. Ortega-Rodriguez, 507 U.S. at 242-46, 113 S.Ct. at 1205-06
(emphasis added) (citation omitted); accord Branch v. Turner, 37 F.3d 371, 376
(8th Cir.1994) (“The fugitive dismissal rule is not an end in itself;
instead, it is the means of protecting the appellate interests served by the
rule.”), rev’d on other grounds sub nom. Goeke v. Branch, 514 U.S. 115, 115 S.Ct.
1275, 131 L.Ed.2d 152 (1995); United States v. Reese, 993 F.2d 254, 256
(D.C.Cir.1993) (noting that some connection is required). On this point, the
Supreme Court was unanimous. See Ortega-Rodriguez, 507 U.S. at 252, 113
S.Ct. at 1210 (Rehnquist, C.J., dissenting) (“Although we agree with
the Court that there must be some ‘connection’ between escape
and the appellate process, we disagree with the conclusion that recapture before
appeal generally breaks the connection.”); id. at 254, 113 S.Ct. at
1212 (“[A] reviewing court may not dismiss an appeal in the absence of
some effect on its orderly functioning.”). The government protests adamantly that Ortega-Rodriguez expressly
recognized that “[i]t has been settled for well over a century that an
appellate court may dismiss the appeal of a defendant who is a fugitive from
justice during the pendency of his appeal.” Id. at 239, 113 S.Ct. at
1203. But this case is a petition for redetermination of taxes, not an appeal
from the New Jersey criminal case. When an individual appeals his criminal
conviction while he remains a fugitive, there is a connection between his
fugitive status and the appellate proceedings, which is all that
Ortega-Rodriguez requires. Thus, if Jose Ortega-Rodriguez had still been a
fugitive at the time he pursued his criminal appeal, his absence would have
flouted the authority of the Eleventh Circuit to carry out its mandate, making
dismissal appropriate. But when the party’s fugitive status bears no
relation to the ongoing proceedings, the court has no authority to order
dismissal. See id. at 249, 113 S.Ct. at 1208 (“Absent some connection
between a defendant’s fugitive status and his appeal, as provided when
a defendant is at large during the ongoing appellate process, the
justifications advanced for dismissal of fugitives’ pending appeals
generally will not apply.” (citation and internal quotation marks
omitted)). B. The Relationship Between Appellant’s Status and the
Tax Court’s Proceedings Under our interpretation of Ortega-Rodriguez, we must now
determine if the requisite “connection” has been shown to
exist between the Tax Court’s redetermination proceeding and
Daccarett-Ghia’s intentional absence from the country. But cf. United
States v. Ortega-Rodriguez, 13
F.3d 1474, 1476 (11th Cir.1994) (placing burden of proof on
defendant-fugitive to disprove relationship between status and proceedings). So
far as we can tell, appellant’s failure to appear on the New Jersey
indictment implicates none of the connections heretofore recognized by the
Supreme Court, nor indeed caused any other discernible impact on the Tax
Court’s proceedings. Despite the invitation to explain any such
relationship presented by our earlier remand, the Tax Court and the
Commissioner have articulated only a subject matter connection between the two
cases. Thus, while we agree “that there is a connection between the
criminal charges pending against petitioner and the tax deficiencies,”
Daccarett-Ghia, T.C.Memo. 1994-594, at 2, 1994 WL 675537 (1994), that connection
does not give rise to the authority to dismiss the petition. Such authority
exists only if there is a connection between appellant’s status and
the Tax Court’s proceedings. Specifically, Daccarett-Ghia’s failure to appear in
reference to the New Jersey federal indictment has had no institutional effect
on the Tax Court. Appellant’s presence was in no way required at the
Tax Court’s proceedings; for example, he would be perfectly free to
pursue his Petition for Redetermination as a foreign national residing outside
of the United States. Thus, Daccarett-Ghia’s status does not flout the
Tax Court’s “dignified operation,” as in Estelle
v. Dorrough, supra, or “disentitle” Daccarett-Ghia from calling
upon its resources, as in Molinaro v. New Jersey, supra. [FN5] It might have
been a different [*628] [**67] matter if, for instance, appellant had refused to provide
certain discovery material, which the Tax Court viewed as a
“significant interference” with its proceedings. Cf. BCCI
Holdings (Luxembourg) Societe Anonyme v. Pharaon, No. 94-cv-3058, 1995
WL 489426, at *4 (S.D.N.Y. Aug. 11, 1995) (“[B]ecause disclosure of
the information requested in defendant’s discovery requests could
threaten the integrity of the ongoing criminal cases against him, defendant
will be barred from obtaining discovery until he appears in the criminal
proceedings.”). FN5. Compare Thompson v. Missouri Bd. of
Probation & Parole, 39 F.3d 186, 190 (8th Cir.1994) (refusing to apply
doctrine “if the escape did not prejudice or impede the present
proceeding”), cert. denied, 514 U.S. 1113, 115 S.Ct. 1970, 131 L.Ed.2d
859 (1995) with United States v. Ortega-Rodriguez, 13 F.3d 1474, 1477
(11th Cir.1994) (concluding that doctrine could be invoked if flight interfered
with consolidation of co-defendants’ appeals) and United States v.
Reese,
993 F.2d 254, 256 (D.C.Cir.1993) (same). Further, neither Smith v. United States, supra, nor Ortega-Rodriguez’s discussion
of prejudice to the government is implicated, [FN6] because the Commissioner
has not established that appellant’s status jeopardizes the
enforceability of the Tax Court’s eventual judgment. There may well be
circumstances in which an individual’s fugitive status would have the
collateral effect of blocking the government’s access to assets that
could otherwise be seized to satisfy a tax deficiency. [FN7] In fact, the
record in this case is ambiguous as to whether the government will be able to collect
the taxes if the Tax Court eventually affirms the deficiency. The Tax Court,
however, expressly declined to invoke such a rationale in dismissing
appellant’s petition. Daccarett-Ghia, T.C.Memo. 1994-594, at 15-16.
Because it is the Tax Court’s discretionary authority over its own
proceedings that is at issue in this circumstance, we cannot invoke a ground
for dismissing the petition on which the Tax Court itself chose not to rely. FN6. Cf. United States v. Sudthisa-Ard, 17 F.3d 1205, 1206 (9th
Cir.1994) (“We dismiss the appeal because Sudthisa-Ard’s
thirteen-year fugitive status prejudiced the government’s ability to
retry the case in the event of reversal and made meaningful appellate review
impossible.”); United States v. Rosales, 13 F.3d 1461, 1463
(11th Cir.) (invoking doctrine based on five-year delay in any retrial), cert.
denied, 513 U.S. 1041, 115 S.Ct. 634, 130 L.Ed.2d 540 (1994); United States
v. Bravo, 10 F.3d 79, 84-85 (2d Cir.1993) (“Robinson’s
fifteen-year absence has severely undermined the government’s ability
to assemble witnesses and evidence for any retrial….”), cert.
denied, 511 U.S. 1011, 114 S.Ct. 1386, 128 L.Ed.2d 60 (1994). FN7. Compare United States v. $40,877.59 in
U.S. Currency, 32 F.3d 1151, 1156 (7th Cir.1994) (“In forfeiture
cases, the claimant’s fugitive status does not threaten the integrity
of the forfeiture proceeding. The judgment is fully enforceable since the
property is in the court’s control; the fugitive would suffer the
consequences of an adverse adjudication. Nor is his presence needed to conduct
an adversarial hearing, and it could not be compelled in a civil action even if
he were not a fugitive.”) with Edelman v. Commissioner, 103 T.C. 705, 1994
WL 675570 (1994) (“[In this tax case, as] long as petitioner remains a
fugitive, and the whereabouts of any assets he may own remain undisclosed, it
will be difficult for respondent to collect petitioner’s deficiencies
and additions to tax.”). The Tax Court and the Commissioner argue instead that there is a
sufficient connection in the affront to the federal judiciary on the whole
represented by Daccarett-Ghia’s refusal to honor its processes; the
district court in New Jersey and the Tax Court in Washington, D.C. are, after
all, both parts of the same federal judiciary. See id. at 16
(“Sound policy concerns dictate that petitioner should not be
permitted to selectively choose the benefits and burdens of the U.S. legal system
that will apply to him.”); Appellee’s Brief at 8
(“The Tax Court properly dismissed taxpayer’s case because he
is a fugitive from justice and, therefore, is not entitled to use the federal
courts to prosecute this appeal.”). There is one post-Ortega-Rodriguez decision that agrees
with their position that “[t]he fugitive disentitlement doctrine
limits access to courts in the United States by a fugitive who has fled a
criminal conviction in a court in the United States.” In re Prevot, 59 F.3d 556, 562
(6th Cir.1995); see also id. at 566 (invoking “fundamental
concerns of how the United States operates its courts and how those courts may
react to abuses of American criminal process”). We are not inclined to go that route, however. Ortega-Rodriguez
itself prohibited the Eleventh Circuit from invoking the affront to one of its
own district courts. In doing so, the Supreme Court expressly repudiated any
[*629] [**68] vision of a
unitary federal judiciary in which an affront to any part is viewed as an
affront to the whole. See 507 U.S. at 246, 113 S.Ct. at 1207 (“We
cannot accept an expansion of this reasoning that would allow an appellate
court to sanction by dismissal any conduct that exhibited disrespect for any
aspect of the judicial system, even where such conduct has no connection to the
course of appellate proceedings.”); id. at 250, 113 S.Ct. at
1209 (rejecting view that would “rest on nothing more than the faulty
premise that any act of judicial defiance, whether or not it affects the
appellate process, is punishable by appellate dismissal”). The
Commissioner would, in effect, have the Tax Court dismiss the petition to
punish appellant for his failure to appear in a criminal case pending in
another jurisdiction. It is an invitation we must decline. [FN8] See id. at 246, 113 S.Ct. at
1207 (“[I]t is the District Court that has the authority to defend its
own dignity, by sanctioning an act of defiance that occurred solely within its
domain.”). FN8. Compare Brief for Appellee at 22
(“Any sanction would not be as a result of his former status as a
fugitive, but rather as a result of his present status as a
fugitive….”) with Ortega-Rodriguez, 507 U.S. at 248, 113
S.Ct. at 1208 (“Use of the dismissal sanction as, in practical effect,
a second punishment for a defendant’s flight is almost certain to
produce the kind of disparity in sentencing that the Sentencing Reform Act of
1984 and the Sentencing Guidelines were intended to eliminate.”
(footnote omitted)). Of course, we do not hold that a court may never dismiss the civil
claim of a litigant who is a fugitive from a criminal case brought in a
different jurisdiction. In many such instances, an adequate connection will
exist, as with the discovery abuses and concerns over hidden assets just
discussed. However, while we do not decide the precise degree of
“connection” that Ortega-Rodriguez requires between
fugitivity and the proceeding being dismissed, mere commonality of subject
matter is insufficient. [FN9] FN9. In light of our conclusion that
appellant’s status lacks the requisite connection to the Tax
Court’s proceedings, we find it unnecessary to reach the other issues
raised by his appeal. Thus, we do not consider whether appellant was in fact a
“fugitive.” Our previous decision in this case expressly
questioned whether that was an accurate characterization; Daccarett-Ghia
alleges that he has “never resided in the United States and took no
evasive action to avoid prosecution.” Friko Corp., 26 F.3d at 1142.
Neither do we address any of the constitutional issues arguably implicated by
dismissal in this context. Finally, we do not consider the appropriateness of
invoking the doctrine to bar a fugitive from defending against a
government-initiated civil action. As we noted in our previous decision, the
issue remains open in this circuit. See id. at 1142-43. IV. CONCLUSION Because no connection has been shown between appellant’s
fugitive status and the Tax Court’s proceedings, we conclude that the
Tax Court abused its discretion in dismissing appellant’s petition for
redetermination. Accordingly, we reverse and remand with instructions to proceed
to the remaining issues raised by the petition. Reversed and remanded. Briefs of the parties • (Appellate Brief) Brief for the
Commissioner (Sep. 22, 1995) • (Appellate Brief) Appellant’s
Brief on Behalf of Johnny Daccarett, Alleged Alter Ego of Friko Corporation
(Apr. 14, 1995) |