Opposition Brief — Fato v. United States

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No. 92-444

In the Supreme Court of the Ginited States

OcTOBER TERM, 1992

FRANK R. FATO, SR., PETITIONER

Uv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

JOSEPH C. WYDERKO

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals properly dismissed an ap-

peal by a defendant who fled before sentencing and re-

mained a fugitive during the pendency of his appeal.

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Allen v. Georgia, 166 U.S. 188 (1897) ou... eee

Estelle v. Dorrough, 420 U.S. 534 (1975) ..........

Molinaro v. New Jersey, 396 U.S. 365 (1970) .....0...0...

Ortega-Rodriguez v. United States, cert. granted, 112

S. Ct. 2964 (June 15, 1992) (No. 91-7749) ...........0..4.....

United States v. Amado, 754 F.2d 31 (1st Cir. 1985) ....

United States v. Anagnos, 853 F.2d 1 (Ast Cir. 1988) ....

United States v. DeValle, 894 F.2d 133 (5th Cir. 1990) ..

United States v. Holmes, 680 F.2d 1372 (11th Cir. 1982),

cert. denied, 460 U.S. 1015 (1983) ....................c.c eee.

United States v. Parrish, 887 F.2d 1107 (D.C. Cir.

8 an Fi te ERLE SSIS SPR SSS O ON Gh oS ROE ee

United States v. Persico, 853 F.2d 134 (2d Cir. 1988) ....

United States v. Puzzanghera, 820 F.2d 25 (1st Cir.),

cert. denied, 484 U.S. 900 (1987) ...............................

United States v. Shelton, 508 F.2d 797 (5th Cir.), cert.

ER a)

United States v. Wright, 902 F.2d 241 (3d Cir. 1990) |...

Statutes:

18 U.S.C. 1

18 U.S.C. 195%

(111)

on

WN b Oo

In the Supreme Court of the United States

OCTOBER TERM, 1992

No. 92-444

FRANK R. FATO, SR., PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The orders of the court of appeals dismissing peti-

tioner’s appeal (Pet. App. 16) and denying reinstatement

of petitioner’s appeal (Pet. App. 17) are unreported.

JURISDICTION

The order of the court of appeals denying reinstate-

ment of petitioner’s appeal was entered on May 18, 1992.

A motion for reconsideration was denied on June 16, 1992.

The petition for a writ of certiorari was filed on Septem-

ber 11, 1992. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

(1)

STATEMENT

Following a jury trial in the United States District

Court for the Northern District of West Virginia, peti-

tioner was convicted of conspiracy to commit offenses

against the United States, in violation of 18 U.S.C. 371;

interstate travel in aid of the commission of arson, in vio-

lation of 18 U.S.C. 1952(a)(3); and wire fraud, in violation

of 18 U.S.C. 1348. He was sentenced to 51 months’ im-

prisonment, to be followed by three years of supervised

release, and fined $75,000. Petitioner also was ordered to

pay restitution of $210,958.89.

1. Petitioner is the owner and operator of a mobile

home business near Buckhannon, West Virginia. In De-

cember 1989, he moved from his residence in Glenwood,

Maryland, to a new residence in Brookeville, Maryland.

Shortly thereafter, petitioner arranged for an employee,

Dana Butcher, to burn his former residence, which was

insured for $360,000 against fire loss by Hartford Insur-

ance Company. On December 31, 1989, Butcher traveled

from West Virginia to Glenwood, Maryland, and set afire

petitioner’s former residence with diesel fuel and lighter

fluid. Two days later, petitioner telephoned his insur-

ance agent in Maryland to initiate a claim for the loss of

his former residence. Gov’t Version of Offense 1-2

(attached to presentence investigation report).

The state fire marshal ultimately determined that ar-

son was the cause of the fire at petitioner’s residence.

When petitioner refused to provide a statement under

oath, the insurance company denied payment of peti-

tioner’s claim in accordance with the terms of the insur-

ance policy. The insurance company, however, paid

$210,958.89 to two mortgagees of petitioner’s former res-

3

idence. Gov’t Version of Offense 3-4 (attached to presen-

tence investigation report).

2. After being convicted by a jury, petitioner failed to

appear for his sentencing on January 6, 1992. His

counsel told the district court: “[Petitioner is] not

intending to be present today. * * * [I]t is his message

to the court that he feels he did not receive justice and a

fair trial and felt that he had to leave for those reasons.”

1/6/92 Tr. 2. The district court sentenced petitioner in

absentia and issued a warrant for petitioner’s arrest.

3. While petitioner remained a fugitive, his counsel

filed a notice of appeal on January 13, 1992. Two weeks

later, the court of appeals sent a letter to the parties

stating that it was the court’s “practice” to dismiss the

appeal of an escaped prisoner pursuant to Estelle v. Dor-

rough, 420 U.S. 534 (1975). Pet. App. 14-15. The court

asked the parties to confirm whether petitioner was still

a fugitive. /d. at 15. Ina letter dated February 3, 1992,

the government advised the court that petitioner “has

not yet been apprehended and his whereabouts are, at the

present, unknown.” Three days later, on February 6, the

court of appeals dismissed petitioner’s appeal with leave

to move for reinstatement of the appeal at a future date

for good cause shown. Pet. App. 16.

Two and one half months after his appeal was

dismissed, petitioner voluntarily surrendered on April

21, 1992. Shortly thereafter, he moved to reinstate his

appeal. The court of appeals denied the motion. Pet.

App. 17. The court likewise denied petitioner’s motion

for reconsideration. /d. at 18.

4

ARGUMENT

Petitioner contends that the court of appeals erred by

dismissing his appeal and refusing to reinstate it. Pet. 6-

12.

1. Petitioner was a fugitive when his appeal was dis-

missed in this case. It is well settled that appellate

courts may dismiss a pending appeal when the defendant

is a fugitive. See Estelle v. Dorrough, 420 U.S. 534, 587

(1975) (per curiam) (noting that “[dJisposition by dis-

missal of pending appeals of escaped prisoners is a long-

standing and established principle of American jaw”).

Moreover, under this Court’s cases, appellate courts are

not required to reinstate a dismissed appeal when a flee-

ing defendant is later recaptured and taken into custody.

In Allen v. Georgia, 166 U.S. 138, 142 (1897), this

Court ruled that, after a fugitive defendant was recap-

tured, the appellate court was under no obligation to re-

instate an appeal that was dismissed while he was at

large. Similarly, in Molinaro v. New Jersey, 396 U.S.

365 (1970) (per curiam), this Court declined to adjudicate

the case of a defendant who fled after appealing his state

conviction. The Court noted that the escape did not ren-

der the appeal moot. Rather, it “disentitle[d] the defen-

dant to call upon the resources of the Court for the de-

termination of his claims.” /d. at 366. The Court went

on to conclude that “[iJn the absence of specific provision

to the contrary in the statute under which Molinaro ap-

peals,” the Court had inherent authority to dismiss the

appeal. /bid. The Court did not make the dismissal of

the appeal in Molinaro contingent on the defendant’s

failure to return to custody by a certain date, nor did it

indicate that the appeal would be reinstated under those

circumstances. Rather, the Court made clear that an

appellate court could respond to a defendant’s fugitivity

5

during the pendency of an appeal by an immediate, un-

conditional dismissal of the appeal with prejudice, with-

out regard to whether the defendant voluntarily re-

turned or was recaptured. See also United States v.

Wright, 902 F.2d 241, 243 (3d Cir. 1990); United States v.

Amado, 754 F.2d 31, 32 (1st Cir. 1985); United States v.

Shelton, 508 F.2d 797, 798-799 (5th Cir.), cert. denied, 423

U.S. 828 (1975). Indeed, the courts of appeals agree that a

court may dismiss an appeal even after the defendant is

recaptured and returned to custody during the pendency

of the appeal. See, e.g., United States v. DeValle, 894

F.2d 138, 135-136 (5th Cir. 1990); United States v. Puz-

zanghera, 820 F.2d 25, 26-27 (1st Cir.), cert. denied, 484

U.S. 900 (1987).

2. Although it is well settled that a court of appeals

may dismiss the appeal of a defendant who was at large

while his appeal was pending, the courts of appeals are

divided on the issue of whether an appeal may be dis-

missed if a defendant flees and is recaptured and re-

turned to custody before the appeal is filed. The Court

recently agreed to resolve that question in Ortega-

Rodriguez v. United States, cert. granted, 112 S. Ct.

2964 (June 15, 1992) (No. 91-7749).” Because the question

* Like this petitioner, the petitioner in Ortega-Rodriguez fled

before sentencing and was sentenced in absentia. Unlike this

petitioner, however, the petitioner in Ortega-Rodriguez did not file

a notice of appeal. When he was later recaptured, the petitioner in

Ortega-Rodriguez was resentenced, and he then appealed from the

_ second sentence. Thus, the issue in Ortega-Rodriguez arises in the

context of a defendant who flees and is recaptured before the

appeal is filed.

The courts of appeals are divided over whether an appeal may

be dismissed in those circumstances. In United States v. Holmes,

680 F.2d 1372, 1373 (11th Cir. 1982), cert. denied, 460 U.S. 1015

(1983), the court held that “a defendant who flees after conviction,

6

presented in Ortega-Rodriquez is quite distinct from the

issue in this case, it is unlikely that this petitioner

would be entitled to any relief even if the petitioner in

Ortega-Rodriguez were to prevail. Therefore, there is no

need for the Court to hold the petition in this case pend-

ing its decision in Ortega-Rodrigquez.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

JOSEPH C. WYDERKO

Attorney

NOVEMBER 1992

but before sentencing, waives his right to appeal from the convic-

tion unless he can establish that his absence was due to matters

completely beyond his control.” See also United States v. Parrish,

R887 F.2d 1107, 1109 (D.C. Cir. 1989); United States v. Persico, 8538

F.2d 134, 136-138 (2d Cir. 1988). In contrast, the First Circuit held

in United States v. Anagnos, 858 F.2d 1, 2 (1988), that it was im-

proper to dismiss the appeal of a recaptured defendant who fled

after the conviction but was recaptured before being sentenced and

filing an appeal. In Anagnos, the court drew a distinction between

a defendant who had fled and was recaptured before sentencing

and a defendant who fled and was recaptured after he appealed,

acknowledging that it had previously ruled that it could dismiss

the appeal of a defendant who fled during the pendency of the

appeal and was subsequently returned to custody. See United

States v. Puzzanghera, 820 F.2d at 26-27.