Petition for Writ of Certiorari — Rosales v. United States

No.

- in the

Siuyprene Cot

of the

United States

OCTOBER TERM, 1992

ALBERTO A. ROSALES, SR..,

Petitioner,

US.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF OF PETITIONER

THOMAS D. SCLAFANI

5100 First Union Financial Ctr.

200 South Biscayne Boulevard

Miami, FL 33131-2319

Telephone: (305) 577-4444

QUESTION PRESENTED

Whether a defendant in a federal criminal case

forfeits his right to appeal a conviction to the Court

of Appeals where the defendant became a fugitive

during trial, but was recaptured prior to being

sentenced and before filing a notice of appeal.

TABLE OF CONTENTS

QUESTION PRESENTED ...................000.

TABLE OF CONTENTS 3... .6.00sssceccesesseces

TABLE OF AUTHORITIES .....................

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CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ...................000-

STATEMENT OF THE CASE...................

REASONS FOR GRANTING THE WRIT.......

ARGUMENT : .i.0:<<ceo240dn:saseaeee eens

A DEFENDANT IN A FEDERAL CRIMINAL

CASE SHOULD NOT BE DENIED

APPELLATE REVIEW OF HIS CONVICTION

IN THE APPROPRIATE UNITED STATES

COURT OF APPEALS IN CIRCUMSTANCES

WHERE THE DEFENDANT BECAME A

FUGITIVE DURING TRIAL AND WHERE

SUCH DEFENDANT WAS NOT SENTENCED

AND THEREFORE DID NOT FILE A NOTICE

OF APPEAL OF HIS CONVICTION UNTIL

AFTER HIS RECAPTURE.

CONCLUBION . ......:15#40ksnae eee

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TABLE OF AUTHORITIES

Cases

Johnson v. Wainwright,

615 F.2d 1077 (5th Cir. 1980).................

Molinaro v. New Jersey,

396 U.S. 365, 90 S.Ct. 498,

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United States v. Anagnos,

Se Se Re GH BOD onc cadacccdcnscvesess

United States v. Baccollo,

vy PA By fy Cok! | | ee

United States v. De Valle,

894 F.2d 133 (5th Cir. 1990)..................

United States v. Holmes,

680 F.2d 1372 (11th Cir. 1982)................

United States v. London,

723 F.2d 1538 (11th Cir. 1984),

cert. denied, 467 U.S. 1228 (1984) ............

United States v. Matista,

982 F.2d 1065 (2d Cir. 1991)..................

United States v. Puzzanghera,

820 F.2d 25 (1st Cir.), cert. denied,

cited Es anania ee Oak. Si,

i CD ccc cagnescaceavivasseuens

United States v. Shelton,

508 F.2d 797 (5th Cir.) cert. denied,

423 U.S. 828, 96 S.Ct. 45,

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United States v. Snow,

748 F.2d 928 (4th Cir. 1984) ..................

in

TABLE OF AUTHORITIES—(Continued)

Statutes and Other Authorities Page(s)

Be Gs MIE BE Sdn cddaccdccncddvacsssccnes 2,3

Se Seis SE IED ccd Sdndistnacdccecsbansans 2

Supreme Court Rule, rule 10.1(a) ................. 2

Supreme Court Rule, rule 13.1.................... 2

United States Constitution, Amendment V....... 2,8

United States Constitution, Amendment / See 2,8

iv

NO.

in the

Supreme Court

of the

United States

OCTOBER TERM, 1992

ALBERTO A. ROSALES, SR.,

Petitioner,

Us.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF OF PETITIONER

OPINION BELOW

The opinion of the United States Court of Appeals for

the Eleventh Circuit is unpublished. A copy of the opinion is

attached to this petition as Appendix A.

JURISDICTION

On October 28, 1992, the United States Court of

Appeals for the Eleventh Circuit entered the — from

which we seek review.

Jurisdiction is vested in this Court pursuant to the

provisions of 28 U.S.C. 1254(1) Supreme Court Rules 10.1(a)

and 13.1.

CONSTITUTIONAL PROVISIONS INVOLVED

The United States Constitution, Amendment V,

provides in pertinent part:

No person shall — be deprived of life, liberty, or

property, without due process of law.

The United States Constitution, Amendment XIV,

provides in pertinent part:

Section 1. — No state shall make or enforce any

law which shall abridge the privileges or immunities

of citizens of the United States; nor shall any state

deprive any person of life, liberty, or property

without due process of law; nor deny to any person

within its jurisdiction the equal protection of the

laws.

STATUTORY PROVISIONS INVOLVED

Title 28, United States Code, Section 1291, provides:

The courts of appeals shall have jurisdiction of

appeals from all final decisions of the district courts

of the United States, the United States District

Court for the District of the Canal Zone, the

STATEMENT OF THE CASE

Petitioner became a fugitive the day before closing

arguments in a criminal trial that last more than three

weeks. The trial proceeded without Petitioner. He was

convicted on all counts in absentia, and he was sentenced

approximately two years later after his recapture to a period

of 85 years imprisonment. His notice of appeal to the United

States Court of Appeals for the Eleventh Circuit was filed

after his recapture. In an unpublished opinion, the Court of

Appeals dismissed the portions of Petitioner's appeal

involving substantive trial issues on the ground that

Petitioner had become a fugitive and thereby forfeited his

right to appeal, relying on the split panel decision in United

States v. London, 723 F.2d 1538 (llth Cir. 1984). The

Eleventh Circuit did rule on one of the points raised in

Petitioner's direct appeal dealing with a sentencing issue.

The Eleventh Circuit's position in London is expressly

contradicted by the law in the United States Court of

Appeals for the First Circuit in United States v. Anagnos,

853 F.2d 1 (1st Cir. 1988).

Federal jurisdiction was conferred at the outset of this

case because Petitioner was indicted in the United States

District Court for the Southern District of Florida, was tried

and convicted in that court. Jurisdiction then vested in the

United States Court of Appeals for the Eleventh Circuit

pursuant to 28 U.S.C. Section 1291.

REASONS FOR GRANTING THE WRIT

A writ of certiorari should be granted in this case

because the decision of the Eleventh Circuit Court of

Appeals in United States v. London, 723 F.2d 1538 (11th

Cir.) cert. denied, 467 U.S. 1228 (1984), is squarely in conflict

with the opinion of the First Circuit Court of Appeals on the

same issue, as embodied in United States v. Anagnos, 853

F.2d 1 (1st Cir. 1988).

ARGUMI NT

®

‘

A DEFENDANT IN A FEDERAL CRIMINAL

CASE SHOULD NOT BE DENIED APPELLATE

REVIEW OF HIS CONVICTION IN THE APPRO-

PRIATE UNITED STATES COURT OF APPEALS

IN CIRCUMSTANCES WHERE THE DEFEN-

DANT BECAME A FUGITIVE DURING TRIAL

AND WHERE SUCH DEFENDANT WAS NOT

SENTENCED AND THEREFORE DID NOT FILE

A NOTICE OF APPEAL OF HIS CONVICTION

UNTIL AFTER HIS RECAPTURE.

Petitioner contends that the holding in United States v.

London, 723 F.2d. 1538 (11th Cir.), cert. denied, 467 U.S.

1228 (1984), is erroreous because it arbitrarily allows an

appellate court to impose harsh punishment (forfeiture of

the appeal) on a defendant who may have committed the

crime of bond jumping before his case ever reached the

Court of Appeals. This Court should resolve the direct

conflict between the Eleventh and First Circuit Courts of

Appeal by adopting the reasoning and conclusions of the

First Circuit Court of Appeals as expressed in United States

v. Anagnos, 853 F.2d 1-(1st Cir. 1988), and Circuit Judge

Johnson’s dissenting opinion in United States v. London,

723 F.2d at 1540-1541. A Court of Appeals should have the

authority to dismiss an appeal of a criminal defendant in

such circumstances only if the defendant became a fugitive

after the notice of appeal was filed.

The London decision, upon which the appellate panel

relied in the instant case (App. 1), was a split panel decision

which held that a defendant who had escaped during trial

and remained a fugitive until after trial forfeited his right to

appeal the conviction in his case because he became a

fugitive during trial. The two judge majority in London

arrived at its conclusion by stretching existing case law to

justify the result.

The benchmark decision on this issue was rendered by

this Court in Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct

498, 24 L.Ed. 2d 586 (1970). Molinaro concluded that

dismissal of an appeal was appropriate because the

defendant escaped and remained a fugitive subsequent to

the filing of the notice of appeal, thereby disrupting the

orderly process of the Court of Appeals (a docketed

appellate case could not proceed on_ schedule),

demonstrating contempt for the very court from which he

was seeking relief.

The Eleventh Circuit Court of Appeals stretched the

Molinaro decision in United States v. Holmes, 680 F.2d

1372 (11th Cir. 1982), by concluding that a defendant who

fled after conviction but before sentencing had waived his

right to an appeal by engaging in such conduct. The Holmes

court reasoned that the act of fugitiveness constitutes

defiance of the “legal system” and, as such, the Court of

Appeals can exercise its power to dismiss an appeal even

though the transgression occurred while the case was still

pending in the District Court, and despite the fact that the

defendant could have been punished by being charged with

bond jumping and/or contempt of court. By the same

reasoning, a Court of Appeals could decide to punish a

defendant for disrespecting the “legal system” by engaging

in unbecoming conduct during his trial, or for becoming a

fugitive at the outset of the case, only later to be

apprehended, tried and convicted.

Two years later, in United States v. London, supra., the

Eleventh Circuit Court of Appeals applied the same

draconian result of dismissal of an appeal to a defendant

who fled during a lengthy and complicated multi-defendant

trial. As the majority wrote: “It would be anomalous to hold

that Holmes lost his right to appeal by fleeing after

conviction but that London retains his right to appeal

because he fled during trial.” Id. But the London majority

opinion was also premised on the fact that London fled in

the midst of a complex multi-defendant trial that lasted

many weeks, thereby placing the trial court in a position of

having to sever London out and to retry him at a later date

after he was apprehended.

The reasoning of Circuit Judge Johnson, who wrote the

dissenting opinion in London, and that of the unanimous

panel of the First Circuit Court of Appeals in United States

uv. Anagnos, 853 F.2d 1 (1st Cir. 1988), point out the crucial

distinction between an appellate court exercising its

discretion to punish an appellant who abuses the process of

that court,’ rather than utilizing the substantially more

punitive measure of dismissing an appeal as against a party

who committed a transgression against the District Court.’

‘Judge Johnson cited to binding precedent of the Eleventh Circuit

approving the policy of dismissing appeals against those who flout the

appellate process by escaping after the notice of appeal is filed. United

States v. Shelton, 508 F.2d 797, 799 (5th Cir.), cert. denied, 423 U.S. 828,

96 S.Ct. 45, 46 L.Ed. 2d 44 (1975); Johnson v. Wainwright, 615 F.2d 1077,

1079-80 (5th Cir. 1980).

2Of course, the District Court has almost unlimited sentencing

discretion under the criminal contempt statute.

In Anagnos, the defendant fled after conviction but

before sentence. He was then indicted for bail jumping and

reapprehended. The Government moved to dismiss

Anagnos’ appeal and asked the First Circuit to extend its

decision in United States v. Puzzanghera, 820 F.2d 25 (1st

Cir.), cert. denied. ___ U.S. —__, 108 S.Ct. 237, 98 L.Ed.

195 (1987), which was a case where the First Circuit

dismissed an appeal of a defendant who escaped after filing

a notice of appeal. The reasoning of the Anagnos court,

which we ask this Court to adopt, was as follows:

Absconding before sentence is another matter. It

is true that the Eleventh Circuit has held that such

a defendant has, equally, in effect waived his right

of appeal from his conviction, [citing United States

v. Holmes], the court saying that to distinguish

fleeing before sentence and after taking an appeal

‘would fly in the face of common sense and sound

reason.’ 680 F.2d at 1374. We think, however, that

Puzzanghera goes to the limit. Anagnos’

misconduct was in the District Court, and should

affect consequences in that court, not in ours. Nor

do we understand the logic of the Eleventh Circuit,

which would hold a defendant fleeing during trial

unable to appeal errors in his conviction, but able

to appeal irregularities in the sentence imposed

after recapture. [Citation omitted] [Emphasis

added].

The reasoning in Anagnos is far more compelling than

in the London majority opinion or, for that matter, Holmes.

Why, for example, should Petitioner’s in-trial fugitiveness

have earned him a dismissal of the portions of his appeal

dealing with errors at trial, but not for sentencing mistakes?

See, App. 1. In addressing the one issue raised on

Petitioner’s direct appeal dealing with a post-trial error, the

Eleventh Circuit Court of Appeals vacated illegal sentences

on three counts totalling fifteen (15) years imprisonment.

Why should the appellate court stop there, especially since

the remaining issues in Petitioner’s case dealt with serious

questions involving the quantum of proof and prosecutorial

misconduct that could have resulted in a new trial.

Assuming the trial errors raised on direct appeal would

have resulted in a reversal and remand, then the net effect of

the Eleventh Circuit’s dismissal of Petitioner’s appeal was

tantamount to that court sentencing Petitioner to seventy

(70) years in jail (which is a life sentence for Petitioner) as

punishment for becoming a fugitive in the District Court

before his case was ever docketed in the Eleventh Circuit.

Such a blatant denial of the due process and equal

protection clauses of Articles V and XIV of the United

States Constitution must not be tolerated.

The line was appropriately drawn in cases such as these

by this Court in Molinaro, and it should remain there.*

*We note that the Second Circuit at first questioned its power to deny

an appeal because of pre-judgment fugitiveness, and refused to so in

United States v. Baccollo, 725 F.2d 170, 171-172 (2d Cir. 1983). Then, in

United States v. Matista, 932 F.2d 1055 (2d Cir. 1991), the Second Circuit

adopted the Eleventh Circuit’s reasoning in a case factually similar to

London. See also, United States v. De Valle, 894 F.2d 133, 136 (5th Cir.

1990), which dismissed an appeal, and United States v. Snow, 748 F.2d

928, 930 (4th Cir. 1984), which permitted the appeal to proceed.

CONCLUSION

For the foregoing reasons, the Petitioner respectfully

requests that the Petition for Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit be

granted.

Respectfully submitted,

Thomas D. Sclafani

Counsel of i: scord

5100 First Umiwon Financial Ctr.

200 South Biscayne Boulevard

Miami, Florida 33131-2319

Telephone: (305) 577-4444

Counsel for Petitioner

DATED: January 25, 1993

Appendix

[FILED OCT. 28, 1992]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 89-5330

Non-Argument Calendar

D.C. Docket No. 85-00382-CR-WJZ

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALBERTO A. ROSALES, SR..,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Florida

Before TJOFLAT, Chief Judge, FAY and BIRCH, Circuit

Judges.

PER CURIAM:

Appellant was tried on a variety of charges dealing with

controlled substances. During the trial, appellant failed to

appear. The trial was completed and appellant convicted in

absentia. Several years later he was apprehended and

returned for sentencing.

On this appeal, the following issues are presented:

I. There was insufficient credible evidence to convict

appellant of the conspiracy and importation of marijuana

from Jamaica—counts II and III of the indictment.

II. There was insufficient evidence to prove the existence of a

single conspiracy to distribute cocaine, marijuana, and

heroin as charged in count IV of the indictment.

App. A-1

III. The trial court erred when it allowed the government to

amend the terms of the indictment to prove the continuing

series element of the CCE charge.

IV. The government failed to prove each essential element of

the continuing criminal enterprise charge beyond a

reasonable doubt.

V. The trial judge abused his discretion when he denied

appellant’s motion for a Byrd severance.

VI. The trial judge erred when he imposed consecutive

sentences for the conspiracy counts to the sentence imposed

for the CCE conviction.

Issues I through V deal with claimed errors during trial.

One who becomes a fugitive during trial waives the right to

contest such on appeal. United States v. London, 723 F.2d

1538, 1539 (11th Cir.), cert. denied, 467 U.S. 1228 (1984).

Issue VI deals with a sentencing problem and the

government agrees there is error. The conspiracies set forth

in Counts II, IV and VI of the indictment merge with

appellant’s convictions as to the continuing criminal

enterprise charged in Count I. Since we affirm the conviction

as to Count I, the convictions and sentences imposed under

Counts II, IV and VI are hereby vacated. United States v.

Nixon, 918 F.2d 895 (11th Cir. 1990).

The judgment of the district court is affirmed in all

respects except as to Counts II, IV and VI wherein the

convictions and sentences are vacated.

App. A-2

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