Petition for Writ of Certiorari — Barmes v. United States

supreme Court, U.S.

FILE &

03 1425 APR -5 2004

No.

IN THE

Supreme Court of the United States

October Term, 2003

MARVIN L. BARMES,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari

To The United States Court of Appeals

For The Third Circuit

PETITION FOR WRIT OF CERTIORARI

MARVIN L. BARMES

6392 E. Overhead Road

Vincennes, IN 47591

(812) 726-4973

Petitioner Pro Se

Oe

Il.

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i

QUESTIONS PRESENTED

Whether the Third Circuit Panel erred by dismissing

Barmes’ appeal by extending the fugitive disentitlement

doctrine to a person who fails to return to the United States

once he has learned of charges pending against him.

Whether the Third Circuit Panel erred by applying the

Disentitlement Doctrine in this Case, since it failed to

consider whether the Government lacks the requisite “clean

hands” for invoking this equitable doctrine.

li

LIST OF PARTIES

All parties appear in the caption of the case on the cover

page.

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TABLE OF CONTENTS

Page

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STATUTES AND RULE INVOLVED ................ l

MU Peeeemeres GE LETT CASE oo cece een a cccceess l

REASON FOR GRANTING THE WRIT .............. 3

The Third Circuit Erred By Dismissing Barmes’ Appeal By

Extending The Fugitive Disentitlement Doctrine To A

Person Who Fails To Return To The United States Once

He Has Learned Of Charges Pending Against Him. 4

If The Court Is Otherwise Not Prepared To Reverse The

Third Circuit’s Application Of The Disentitlement

Doctrine In This Case, It Should Consider Whether The

Government Lacks The Requisite “Clean Hands” For

Invoking This Equitable Doctrine ............ 17

as ook eed kaka Nb ea whee ee en 23

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INDEX TO APPENDICES

APPENDIX A

Third Circuit Order Denying Petition for Rehearing En

Banc

APPENDIX B

Third Circuit Panel Decision.

APPENDIX

There was no written decision by the District Court. The

District Court Judge just wrote “denied” on the pleading.

ee

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TABLE OF AUTHORITIES

Cases Page

Ali v. Sims,

FOR PF 2RGRE I Cie. TIED i oo cc vesccessesase 4

Allen v. Georgia.

566 US. 856, TISA1FP CF) ov ccnccvessecavin 3,11

Bonahan v. Nebraska,

e-Ris & 2) 5) rer rrrery por Tr 3, 11

Brouse v. United States,

bw bm. Ft Ce Bo er 15

Donnell v. United States,

229 F.26 S60, S62 (50s Clr. T9SE) onc ccccccsccces 15

Eisler v. United States,

550 US. SOD, FF8 CEPA vis cove cvacusvesesans a, ¥3

Estelle v. Dorrough,

SHUTS, Serres nk vo ois hanes eee ene res 3,11

Goeke v. Branch,

FER Ro ee Meee See Fh, arr 11

Jhirad v. Ferrandina,

536 F.2d 478, 483 (2d Cir.),

cert. denied, 429 U.S. 833 (1976) ...........-0008- 6

vi

Lupino v. United States,

268 F.2d 799, 801 (8th Cir.),

cert. denied, 361 U.S. 834 (1959) ........ccceeees 14

Molinaro v. New Jersey,

SIG UR. SEE 6 05 055 054000005000 EES 3,11

Ortega-Rodriguez v. United States,

193. Ce. 1199, LAGE CIGGS) a cee cccncns 3, 1, 12, 15

Pecoraro v. Commissioner,

69 T.C.M. (CCH) 2644, 2646 (1995) ..........006. 15

Smith v. United States,

OG UD. FF CPN TOE 06 4 x0aeoe kan eae tense 3,11

State v. Miller,

442 P.26 JAG, B43 COE. FSGS) cess cdaccessseades 14

Streep v. United Staies,

GOULD. UAB CISD ox cc rent ke seceeeceigeeuaes 15

United States v. $40,877.59 in United States Currency,

32 F.3d 1151, 1156 (7™ Cir. 1994) ............. 15, 18

United States v. Durcan,

$39 F.2d 29, 32. (O" Gir. ISTE)... cece vcesccescces 14

United States v. Marshall,

856 F.2d 896, 898 (7" Cir. 1988) ........... 0. cee. 15

United States v. Sharpe,

470 U.S. 67S, GEE 0.2 CIGSS) oc vce venncsntus 3,11, 18

Vii

United States v. Wright,

oie yp tt oe S| PP errrererrrrreri Ty 3

Statutes

fis fe Serr er erTe rere e ry oe 14, 16

Se ob cs che nuh Veeeeeus ek4seeeeees 15

Ss BN 6 oe dec bdivcaaveceensscceeets 13

8 eR errr Teeter TT Ty Tere re 13

ri gk Ce | rrr rrr err er er rer rrr 2, 5, 6, 7,8

Other Authorities

Webster’s New World Dictionary of American English 544 (3d

CORE, TUOE v5 oc Fi ves cs irene ws vesesivesataons 12

]

OPINIONS BELOW

The Order of the Third Circuit Court of Appeals denying the

Petition for Rehearing is unpublished, and is reprinted in

Appendix A.

The Third Circuit Pane!’s opinion is unpublished, and is

reprinted in Appendix B.

There was no written opinion by the District Court. The

District Court Judge simply wrote a short handwritten note on

the first page of the pleading denying the motion.

JURISDICTION

The Order denying the timely filed Petition for Rehearing

of the Court of Appeals in this case was filed on January 8,

2004. This petition is therefore timely under Supreme Court

Rules 13.1, 13.3, 29.2, & 30.1 if (mailed U.S.P.S. first class)

postmarked by April 7, 2004.

This Court has jurisdiction to review the judgment of the

Court of Appeals pursuant to 28 U.S.C. § 1254(1).

STATUTES AND RULE INVOLVED

This case involves application of the judicially crafted

fugitive disentitlement doctrine.

STATEMENT OF THE CASE

On May 6, 2003, a grand jury handed down a sealed

indictment consisting of five counts. Barmes has filed nine (9)

motions to dismiss the Indictment arguing, inter alia, that the

2

statute alleged to have been violated in Counts | through 5 of

the Indictment, 21 U.S.C. § 863, exceeds the legislative

authority of Congress or, in the alternative, the statute only has

effect within those areas external to state legislative power and

territory.

United States filed a response to Barmes’ motions to

dismiss numbers | through 7 on July 7, 2003, and argued that

the motions should be denied because Barmes was a fugitive.

The District Court dismissed Barmes’ motions on July 10,

2003, without allowing Barmes an opportunity to even respond.

On July 21, 2003, Barmes filed a motion to alter, amend,

vacate, and/or reconsider the Court’s Orders of July 10, 2003.

Barmes argued, inter alia, that the Fugitive Disentitlement

Doctrine does not apply, because Barmes is not a fugitive.

United States did not respond to Barmes’ motion to alter,

amend, vacate, and/or reconsider the Court’s Orders of July 20,

2003. On July 28, 2003, the District Court summarily denied

the motion to alter, amend, vacate, and/or reconsider.

Barmes has also filed four (4) motions to suppress. The

District Court, sua sponte, denied these motions as well by

invoking the fugitive disentitlement doctrine.

On August 6, 2003, Barmes filed his notice of appeal. On

August 26, 2003, United States filed a motion for summary

action, and Barmes responded in opposition to that motion.

On October 21, 2003, the Third Circuit pane} dismissed the

appeal by extending the doctrine of fugitive disentitlement

beyond which the Supreme Court has sanctioned.

Barmes timely filed with the Third Circuit his Petition for

‘rs

3

Rehearing with Suggestion for Rehearing En Banc. On January

8, 2004, the Third Circuit denied the Petition.

This timely petition follows.

REASON FOR GRANTING THE WRIT

The Third Circuit Panel affirmed the district court by ruling

that: “[t]he foregoing matter is hereby dismissed pursuant to

the doctrine of fugitive disentitlement. See Molinaro v. New

Jersey, 396 U.S. 365 (1970); see also United States v. Wright,

902 F.2d 241 (3d Cir. 1990).”

The Third Circuit Panel’s decision conflicts with Supreme

Courts precedents, and consideration by the Supreme Court is

therefore necessary. Every one of the Supreme Court’s

disentitlement cases has involved “fugitives” who escaped from

7 custody (actual or constructive) following a criminal trial and

conviction. See Ortega-Rodriguez v. United States,-113 S. Ct.

1199, 1202 (1993) (flight following conviction); United States

v. Sharpe, 470 U.S. 675, 681 n.2 (1985); id. at 721 n.1 (Stevens,

J., dissenting) (escape following sentencing); Estelle v.

Dorrough, 420 U.S. 534 (1975) (escape from jail following

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

(jumped bail following conviction); Eisler v. United States, 338

U.S. 189, 191 (1949) (flight abroad following conviction); Allen

v. Georgia, 166 U.S. 138, 138-139 (1897) (escape from jail

following conviction); Bonahan v. Nebraska, 125 U.S. 692

(1887) (same); Smith v. United States, 94 U.S. 97 (1876)

(same). See also Goeke v. Branch, 115 S. Ct. 1275, 1275-1276

(1995) (per curiam) (jumped bail following conviction).

The Panel’s decision also conflicts with Third Circuit

authority. See United States v. Wright, 902 F.2d 241 (3" Cir.

4

1990), which concerned an individual who was convicted,

disappeared, and his appeal was dismissed, and Ali v. Sims, 788

F.2d 954 (3 Cir. 1986), which concerned a convicted felon

who hijacked a plane to Cuba.

The issue on which Barmes seeks the Supreme Court to

review involves a question of exceptional importance, because

it addresses an expansion of a sanction never authorized by this

Court. Barmes simply does not qualify as a “fugitive” under

these Supreme Court cases. Every one of the Court's

disentitlement cases has involved “fugitives” who broke out of

prison or otherwise escaped from lawful custody (actual or

constructive) following a criminal trial and conviction. Barmes

has never been a “fugitive” within the ordinary meaning of that

term (or even the more specialized meaning that has developed

in analogous legal contexts).

I. THE THIRD CIRCUIT ERRED BY DISMISSING

BARMES’ APPEAL BY EXTENDING THE FUGITIVE

DISENTITLEMENT DOCTRINE TO A PERSON WHO

FAILS TO RETURN TO THE UNITED STATES ONCE

HE HAS LEARNED OF CHARGES PENDING AGAINST

HIM

A. Summary of the Facts and History.

Barmes has been a resident of the Bahamas since on or

about March, 1996. Barmes had traveled back and forth from

the United States to the Bahamas for numerous years. During

the bond hearing of Barbara Barmes, United States introduced

“Government Exhibit 11.” Exhibit 11 consists of fax sheets

detailing both Marvin and Barbara Barmes’ travel to and from

Indiana to Nassau, Bahamas. The sheets cover Marvin Barmes

between May 1, 2001, and ending on April 7, 2003. Barbara

5

Barmes was arrested on May 26, 2003. Officer Szurlej testified

that Barbara Barmes spent “approximately 150 days either in

the Bahamas or traveling back and forth from the Bahamas”

between February 11, 2002 and May 26, 2003.

Barmes was in The Bahamas most of 2003, except for short

trips back to Vincennes, Indiana. He returned to The Bahamas

on April 6, 2003, after a trip to Indiana due to the death of one

of his sons. Barmes had a return date of May 13, 2003, which

was the same date as his wife (Barbara Barmes) returned to

Indiana. Barmes could not return with his wife due to business

related reasons, and he had to cancel his return ticket a day or

two before the scheduled flight.

On May 6, 2003, a grand jury handed down a sealed

indictment consisting of five counts. The Indictment alleges at

Count 1 that Marvin and Barbara Barmes did knowingly,

intentionally and unlawfully conspire with each other and with

persons known and unknown to the grand jury to unlawfully

sell and offer for sale unknown drug paraphernalia, as that term

is defined in Title 21, United States Code, Section 863(d),

contrary to the provisions of 21 U.S.C. §§ 863(a)(1) and 863(b).

Count 2 is the substantive offense of knowingly, intentionally

and unlawfully offering for sale an unknown item of drug

paraphernalia proscribed by 21 U.S.C. §§ 863(a)(1) and 863(b).

Counts 3 and 4 charge essentially the same conduct. Count

Five charges the same conduct against defendants, but adds the

element that they used a communication facility, the internet, in

committing, or in causing or facilitating the commission of, the

act of offering for sale drug paraphernalia, as that term is

defined in 21 U.S.C. §§ 863(a)(1) and 863(b), in violation of §

843(b). In other words, all Counts of the Indictment are based

upon a violation of § 863(a)(1).

6

Barmes filed nine (9) motions to dismiss the Indictment

arguing, inter alia, that the statute alleged to have been violated

in Counts 1 through 5 of the Indictment, 21 U.S.C. § 863,

exceeds the legisiative authority of Congress or, in the

alternative, the statute only has effect within those areas

external to state legislative power and territory.

Barmes moved to dismiss the Indictment by filing the

following nine (9) motions:

(1) Defendant Marvin L. Barmes’ Motion to Dismiss the

Indictment No. 1, assuming Congress enacted § 863(a) pursuant

to the Commerce Clause of the Constiiutiun, said statute is

unconstitutional because the Commerce Clause does not

authorize a police regulation to operate within the territorial

jurisdiction of the states;

(2) Defendant Marvin L. Barmes’ Motion to Dismiss the

Indictment No. 2, arguing the United States Constitution does

not grant the power to Congress to enact legislation subjecting

a person to criminal sanctions for the sell and offer for sale of

drug paraphernalia, because the States are separately competent

to define and punish that offense;

(3) Defendant Marvin L. Barmes’ Motion to Dismiss

Counts 2, 3, 4 and 5 of the Indictment - No. 3, arguing that

Counts 2, 3, 4, and 5 of the Indictment are multiplicitous;

(4) Defendant Marvin L. Barmes’ Motion to Dismiss

Counts 2, 3, and 4 of the Indictment - No. 4, arguing that

Counts 2, 3, and 4 of the Indictment are lesser included offenses

of Count 5 and are therefore the same offenses under the

Double Jeopardy Clause of the Fifth Amendment;

7

(5) Defendant Marvin L. Barmes’ Motion to Dismiss

Counts 1, 2, 3, 4, and 5 of the Indictment - No. 5, arguing that

Counts 1, 2, 3, 4, and 5 of the Indictment must be dismissed

since the allegations are so vague and lacking in particularity as

to deprive defendant Barmes of his constitutional rights;

(6) Defendant Marvin L. Barmes’ Motion to Dismiss Count

One of the Indictment - No. 6, arguing that Count One of the

Indictment must be dismissed because it does not sufficiently

describe a particularized scheme to commit the offense of

unlawfully selling or offering for sale drug paraphernalia;

(7) Defendant Marvin L. Barmes’ Motion to Dismiss

Counts 1, 2, 3, 4, and 5 of the Indictment - No. 7, arguing that

Counts 1, 2, 3, 4, and 5 of the Indictment must be dismissed

because a mens rea element is not included in the 21 U.S.C. §

863 in violation of the notice requirement embodied in the

Constitution;

(8) Defendant Marvin L. Barmes’ Motion to Dismiss the

Indictment No. 8, arguing that, assuming the Commerce Clause

purportedly authorized § 863, (a) the substantially affects

commerce test is incorrect, and (b) that drug “pipe”

paraphernalia cannot be regulated under the substantially affects

commerce test. At stake in these proceedings is whether the

federal government may exercise power in derogation of the

Constitution, unrestrained by any recognition of the

constitutionally protected sovereignty and autonomy of state

and local governments or the fundamental rights of American

citizens; and

(9) Defendant Marvin L. Barmes’ Motion to Dismiss

Counts 1, 2, 3, 4, and 5 of the Indictment - No. 9, that Counts

1, 2, 3, 4, and 5 of the Indictment must be dismissed because

8

United States does not have the authority to enact and enforce

21 U.S.C. § 863 or, in the alternative, this statute can only have

effect within areas external to state legislative power and

territory.

Barmes also filed four (4) motions to suppress. The District

Court, sua sponte, denied these motions as well. The record

with the District Court discioses outright criminal conduct by

United States officials, and the application of the fugitive

disentitlement doctrine very effectively conceals and protects

lawless law enforcement agents. The Court’s discretion ought

to be exercised in favor of hearing this appeal if for no other

reason than the very troubling conduct of the United States in

securing the Indictment against Barmes. A review of this

record should persuade the Court that to sit back and say

nothing implicitly condones such conduct.

The record discloses that Barmes has shown the District

Court, the United States Attorney, the Department of Justice,

and the Third Circuit that over $300,000 of seized cash is

missing; the agents executing search warrants intentionally

vandalized and destroyed property; stole items from the

business; were witnessed placing, inter alia, adult novelty items

and lingerie into their personal cars; and conducted warrantless

searches and seizures. See Motions to Suppress No.’s 1, 2, 3,

and 4.

On August 22, 2003, Barmes filed his Notice to the Court

and Executive Branch Officials. Barmes gave notice to the

Court and all Executive Branch officials who advise and act

with it, or execute the process of the Court, that subject matter

jurisdiction does not exist as clearly established by the record in

the instant case. Notwithstanding the record, the Court, other

Judicial officers, and Executive Branch officials continue to

9

unlawfully assert authority over Marvin L. Barmes, Barbara J.

Barmes, as well as Brian and Greg Barmes. The District Court

supervised a grand jury proceeding, engaged in plea bargaining

arrangements, issued arrest warrants, and illegally incarcerated

Barbara J. Barmes.

B. Barmes is not a “Fugitive” within the Meaning of the

Disentitlement Doctrine.

The Court should accept this Writ and reverse the Third

Circuit, because Barmes does not qualify as a “fugitive”.

Barmes has never been a “fugitive” within the ordinary meaning

of that term (or even the more specialized-meaning that has

developed in analogous legal contexts).

Barmes has not fled from the custody of any court in which

he was convicted of a crime; has not otherwise absconded or

taken flight from U.S. authorities in violation of any criminal

proscription; and has not even departed this country with any

intent to avoid prosecution.

The Court must concede that every one of the Supreme

Court's disentitlement cases has involved “fugitives” who broke

out of prison or otherwise escaped from lawful custody (actual

or constructive) following a criminal trial and conviction. And

it cannot be disputed that the flight in each of those cases was

“a deliberate and unlawful flouting of the convicting court’s

authority to execute its judgment.” The government

nevertheless convinced the District Court and Third Circuit to

endorse a vastly expanded concept of “fugitivity” that would

encompass persons who merely are absent from the United

States while a criminal charge is pending here against them.

Disentitlement is a “sanction” aimed at deterring wrongful

10

conduct that directly interferes with the disentitling court’s

processes. For that reason, the definition of “fugitivity”

employed in the disentitlement context must include some

element of culpability or wrongful conduct. Mere absence from

the United Staies, even when coupled with actual knowledge of

pending charges,' hardly qualifies as conduct warranting the

sanction of disentitlement. Nor does disentitlement serve any

deterrent function when a defendant is unaware of the pending

charges, or has left the country without any intent to avoid

prosecution.

Barmes notes that the government cannot dispute that it

never even argued that he left the United States with any intent

to avoid prosecution, much less carried its burden of submitting

evidence that would show such intent. For that reason, if the

Court agrees with any of Barmes’ definitions of “fugitivity,” it

can and should simply reverse the Third Circuit Panel.

C. Barmes is not a Fugitive from Justice.

Even if this Court determines that the doctrine may be

applied in this action, the Third Circuit must be reversed,

because Barmes does not qualify as a “fugitive.” This is so

because he has not fled from the custody of any court in which

he was convicted of a crime; has not otherwise absconded or

taken flight in violation of any criminal prohibition; and has

not, for that matter, “fled” from the United States in any

meaningful sense of that word. The government has never

l. As explained below, the ordinary meaning of the

word “fugitive” does not include mere absence plus failure to

return.

1]

suggested that Barmes fled from a criminal conviction or that

his movements violate any criminal proscription, and it did not

(and could not) contend that it has proven that Barmes departed

this county with an intent to avoid prosecution.

Every one of the Supreme Court’s disentitlement cases has

involved “fugitives” who escaped from custody (actual or

constructive) following a criminal trial and conviction. See

Ortega-Rodriguez, 113 S. Ct. at 1202 (flight following

conviction); Sharpe, 470 U.S. at 681 n.2; id. at 721 nl

(Stevens, J., dissenting) (escape following sentencing); Estelle

v. Dorrough, 420 U.S. at 534 (escape from jail following

sentencing); Molinaro, 396 U.S. at 365 (jumped bail following

conviction); Eisler, 338 U.S. at 191 (flight abroad following

conviction); Allen v. Georgia, 166 U.S. at 138-139 (escape from

jail following conviction); Bonahan, 125 U.S. at 692 (same),

Smith, 94 U.S. at 97 (same). See also Goeke v. Branch, 115 S.

Ct. 1275, 1275-1276 (1995) (per curiam) (jumped bail

following conviction).

Despite the fact that the Supreme Court has approved

disentitlement only against persons who have already been

convicted of crimes, and only in cases where there has been a

deliberate and un!awful flouting of the convicting court’s

authority to execute its judgment, the lower courts have not

limited their use of disentitlement to this context. On the

contrary, they have applied the doctrine to disentitle persons

who have never been tried and convicted, who have never been

shown to have “fled” in any meaningful sense of that word, and

even against persons who merely refused to travel to the United

States to face criminal charges.

This case represents a rather stark illustration of the

problem. In the District Court’s and Third Circuit Panel’s view,

12

the mere fact that Barmes has notice and knowledge of the

criminal case and warrant against him; that he is not confined

or held in custody in any other jurisdiction for commission of

criminal conduct in that jurisdiction; and that [because he] ...

has declined to reenter the United States from The Bahamas to

submit to the jurisdiction of the Court, he is a fugitive.

This definition of “fugitive” represents a dramatic departure

from the limited circumstances in which the Supreme Court has

upheld the use of disentitlement. Because disentitlement

plainly is a punitive “sanction” (Ortega-Rodriguez, 113 S. Ct.

at 1207), this Court should limit its use to cases where the

disentitled person has been convicted of a crime and has

escaped from the custody (actual or constructive) of the

convicting court. Such a rule would reserve disentitlement to

the most troubling instances of defiance of judicial authority

while at the same time ensuring that the “blunderbuss of

dismissal” (ibid.) is deployed only against those who have been

found guilty of criminal conduct beyond a reasonable doubt.

Otherwise, the definition gives rise to serious constitutional

concerns.

But even if the Court declines to adopt such a bright-line

rule, it should reject the broad definition of fugitive status. The

definition does not require a determination that the absent

litigant has engaged in criminally proscribed flight, and it even

extends well beyond the ordinary meaning of both the word

“fugitive” and the conventional legal concept of “fugitive from

justice” as developed in several analogous areas of the law.

The word “fugitive” is uniformly defined by dictionaries as

“a person who flees or has fled from danger, justice, etc.”

Webster’s New World Dictionary of American English 544 (3d

13

College ed. 1989).? The concept of fleeing (or flight), in turn,

not only suggests departure or evasive movement with an intent

to avoid capture or detection, but it also logically presupposes

knowledge of the thing that is being evaded. One cannot “flee”

from a pursuer unless one knows that the pursuer exists. By the

same token, merely declining to travel to a jurisdiction one left

without any intent to evade prosecution cannot accurately be

termed “fleeing” or “flight.” Purely as a matter of English

usage, then, the definition of “fugitive” is untenable.

What is more, in several parallel statutory contexts,

Congress has defined the term “fugitive from justice” in a way

that is consistent with the ordinary meaning of “fugitive” but

inconsistent with the District Court’s sweeping definition. The

federal firearms laws, for example, make it a crime for a

“fugitive from justice” to transport or ship any firearm in

interstate commerce. 18 U.S.C. § 922(g). The statute also

includes the following definition: “The term ‘fugitive from

justice’ means any person who has fled from any State to avoid

prosecution for a crime or to avoid giving testimony in any

criminal proceeding.” 18 U.S.C. § 921(a)(15) (emphasis

added). Under that statutory definition, it plainly is not enough

merely to decline to travel to the jurisdiction where charges are

pending — to be a fugitive, one must flee the jurisdiction with

y & See also Webster's I] New Riverside University

Dictionary 510 (1994) (“Fleeing, as from the law”; “One who

flees <a fugitive from justice>”); American Heritage Dictionary

538 (2d College ed. 1991) (“Running away or fleeing, as from

the law”); The New Shorter Oxford English Dictionaries on

Historical Principles of English 1038 (1993) (“a person who

flees or tries to escape from danger, an enemy, justice, a master,

etc.”).

14

the intent to avoid prosecution. As the Ninth Circuit has

correctly observed in this context, “[t]he statute provides that

flight ... is the crime, not failure to surrender.” United States v.

Durcan, 539 F.2d 29, 32 (9th Cir. 1976) (emphasis in original).

Another analogous area of federal law is the Felony Fugitive

Act, which provides in pertinent part:

Whoever moves or travels in interstate or foreign commerce

with intent either (1) to avoid prosecution, or custody or

confinement after conviction, under the laws of the place

from which he flees, for a crime, or an attempt to commit a

crime, ... which is a felony under the laws of the place from

which the fugitive flees, or (2) to avoid giving testimony ...,

or (3) to avoid service of ... lawful process ... shall be fined

under this title or imprisoned not more than five years, or

both.

18 U.S.C. § 1073 (emphasis added). The lower courts have

confirmed what is evident from the face of the statute: that

interstate travel with intent to avoid prosecution or custody is an

essential prerequisite to being found to be a fugitive felon

within the meaning of Section 1073(1). See, e.g., Hett v. United

States, 353 F.2d 761, 763 (9th Cir. 1965); Lupino v. United

States, 268 F.2d 799, 801 (8th Cir. 1959). Mere absence from

a jurisdiction is insufficient to support a conviction for being a

fugitive under Section 1073. See Barrow v. Owen, 89 F.2d 476,

478 (5th Cir. 1937) (“mere absence from the state of

prosecution ... is not sufficient proof of the federal crime”); Reis

v. United States Marshal, 192 F. Supp. 79, 81 (E.D. Pa. 1961)

(same); State v. Miller, 412 P.2d 240, 243 (N.M. 1966) (same).

Finally, Congress has enacted a provision that tolls the

statute of limitations for crimes when the defendant is a

15

fugitive. 18 U.S.C. § 3290. Entitled “Fugitives from justice,”

Section 3290 states: “No statute of limitations shall extend to

any person fleeing from justic: .” Ibid. (emphasis added). In

Streep v. United States, 160 U.S. 128 (1895), the Court

suggested that a predecessor provision that was worded

identically required a showing of “flight with the intention of

avoiding being prosecuted.” Id. at 133. A majority of the

circuits have likewise interpreted Section 3290 as requiring a

showing of flight, coupled with an intent to avoid prosecution.

See, e.g., United States v. Marshall, 856 F.2d 896, 900 (7th Cir.

1988) (“government must show that [the defendant] left Illinois

with the intent to avoid arrest or prosecution”); Donnell v.

United States, 229 F.2d 560, 562 (Sth Cir. 1956) (Section 3290

tolls limitations period only with respect to those who “absent{]

themselves from the jurisdiction of the crime with the intent of

escaping prosecution”); Brouse v. United States, 68 F.2d 294,

295 (1st Cir. 1933) (“The essential characteristic of fleeing from

justice is leaving one’s residence, or usual place of abode or

resort, or concealing oneself, with the intent to avoid

punishment.”).

Requiring the government to prove, at a minimum, that an

absent litigant departed the jurisdiction with an intent to avoid

prosecution is also entirely consistent with the purposes of the

disentitlement doctrine.’ As the Supreme Court made clear in

Ortega-Rodriguez, disentitlement is above all a “sanction [in

the form of] dismissal” (113 S. Ct. at 1207 (emphasis added)),

and it is therefore appropriate to confine that sanction to

conduct — actual flight with intent to avoid prosecution — that is

truly sanctionable. Bail-jumping, escape from custody, and

x Accord $40,877.59, 32 F.3d at 1156; Pecoraro

v. Commissioner, 69 T.C.M. (CCH) 2644, 2646 (1995).

16

flight to avoid prosecution are all independently unlawful acts;

Barmes’ refusal to leave his Bahama residence and come to the

United States to stand trial, by contrast, is not a violation of any

legal duty and may not be directly punished. Why, then, should

it be indirectly punishable through the disentitlement doctrine?

Moreover, adoption ofa broader definition (to include mere

failure to travel) would not serve the objectives of the

disentitlement doctrine. The purposes of deterrence and

protecting the disentitling court’s dignity, for example, would

not be served by disentitling a person who has not been shown

to have “fled” from the jurisdiction to avoid prosecution. And

it would be odd indeed if conduct that is sufficiently innocent

to escape proscription under the Felony Fugitive Act, 18 U.S.C.

§ 1073, or even to suspend the running of the statute of

limitations for federal crimes, would nonetheless be a legally

sufficient basis for imposing a punitive sanction on Barmes in

this case. This is especially true in the case at bar, since the

correct interpretation of the Constitution does not provide any

Branch of the Government to enact and prosecute the purported

crime at issue herein.

If (as Barmes’ contends) fugitive status requires a

demonstration by the government that the disentitled person

unlawfully departed the jurisdiction with an intent to avoid

prosecution, then the Third Circuit Panel must be reversed. The

lower court and Third Circuit squarely rejected this definition.

There is no need, however, to even determine whether Barmes

possessed the requisite intent to avoid prosecution when he

departed the United States. The reason is simple: _ the

government never actually argued that point, and its proffer of

evidence utterly failed to prove any such intent.

In its response and supporting memorandum, the

17

government did not contend that Barmes left the United States

with an intent to avoid prosecution. In fact, the government's

argument on the issue of Barmes’ alleged fugitive status relied

entirely on the mere existence of an outstanding arrest warrant

against him issued on May 7, 2003 (the day after Barmes’

indictment was returned under seal). The record clearly

discloses that Barmes did not leave the U.S. with knowledge of

-a pending criminal action.

United States thus failed to prove (or even articulate) that

Barmes departed the United States with any intent to avoid

prosecution. Having failed to carry its burden, the government

should not be permitted a second chance. Accordingly, the

Orders of disentitlement should be reversed. -

Il. IF THE COURT IS OTHERWISE NOT PREPARED TO

REVERSE THE THIRD CIRCUIT’S APPLICATION OF

THE DISENTITLEMENT DOCTRINE IN THIS CASE, IT

SHOULD CONSIDER WHETHER THE GOVERNMENT

LACKS THE REQUISITE “CLEAN HANDS” FOR

INVOKING THIS EQUITABLE DOCTRINE

In the event that this Court concludes that the disentitlement

doctrine can potentially be applied in this context, it should

4. Officer Szurlej’s testimony discloses that United

States deemed Barmes a “fugitive” while the Indictment was

under seal. “No, Sir, we wanted to arrest both her and her

husband. Based on the traffic patterns of passing between here

and the Bahamas, we expected her husband to come home and

we wanted to arrest her husband. We had a warrant for him, he

is a fugitive from justice, therefore we thought it was in the

best interest to arrest them both at the same time.”

ten ender Nihari iindss wit Ui.

18

nevertheless reverse the District Court’s and Third Circuit

Panel’s Orders. By unlawfully filing a /is pendens, stealing and

destroying private property, apparently absconding with over

$300,000 of cash, and conducting warrantless searches and

seizures, the government comes to this Court with “unclean

hands,” and should accordingly be disabled from invoking the

equitable principle of disentitlement. If this Court is not

otherwise persuaded that the disentitlement doctrine is

inappropriate in this setting, it should vacate the District Court’s

and Third Circuit Panel’s Orders to resolve this issue.

1. The Government may not invoke the equitable

doctrine of disentitlement when it comes to court

with “unclean hands”.

It is well settled that the disentitiement doctrine is an

“equitable principle” (United States v. Sharpe, 470 U.S. 675,

681 n.2 (1985)) that is “to be applied at the discretion of the ...

court” (United States v. $40,877.59 in United States Currency,

32 F.3d 1151, 1152 (7th Cir. 1994)). “Disentitlement is not a

matter of jurisdictional dimension; rather, it is a concept

premised on principles of equity.” United Elec. Radio & Mach.

Workers of Am. v. 163 Pleasant St. Corp., 960 F.2d 1080, 1098

(1st Cir. 1992). Accord In re Prevot, 59 F.3d 556, 562 (6th Cir.

1995) (“The power of an American court to disentitle a fugitive

from access to its power and authority is an equitable one.”).

To invoke any such equitable doctrine, the government must

of course come to court with “clean hands.” Thus,

[i]t is one of the fundamental principles upon which equity

jurisprudence is founded, that before a complainant can

have standing in court he must first show that not only has

he a good and meritorious cause of action,. but he must

19

come into court with clean hands. He must be frank and

fair with the court, nothing about the case under

consideration should be guarded, but everything that tends

to a full and fair determination of the matters in controversy

should be placed before the court.

Keystone Driller Co. v. General Excavator Co., 290 U.S. 240.

244 (1933) (internal quotations omitted). As the Supreme

Court explained nearly 150 years ago, “[t]he equitable powers

of this court can never be exerted in behalf of one who has

acted fraudulently[] or who by deceit or any unfair means has

gained an advantage.” Bein v. Heath, 47 U.S. (6 How.) 228,

246-247 (1848).

“This maxim is far more than a mere banality.” Precision

Instrument Mfg. Co. v. Automotive Maintenance Mach. Co.,

324 U.S. 806. 814 (1945). Rather, “[i]t is a self-imposed

ordinance that closes the doors of a court of equity to one

tainted with inequitableness or bad faith relative to the matter

in which he seeks relief, however improper may have been the

behavior of the [other party].” Ibid Accord ABF Freight

System, Inc. v. NLRB, 114 S. Ct. 835, 842 (1994) (Scalia, J.,

concurring in the jucgment). And while ““equity does not

demand that its suitors shall have led blameless lives,” Morton

Salt Co. v. G.S. Suppiger Co., 314 U.S. 488, 493 (1942),

nevertheless in the “ordinary case” a “federal court should not

_.. lend its judicial power to a plaintiff who seeks to invoke that

power for the purpose of [achieving its] ends in clear violation

of law.” Johnson v. Yellow Cab Transit Co., 321 U.S. 383, 387

(1944). Applying this principle, the Supreme Court has not

hesitated to withhold equitable relief from parties that came to

court with unclean hands. See, e.g., Precision Instrument, 324

US. at 816-820; Morton Salt, 314 U.S. at 493-494.

20

Because “[t]he general principles of equity are applicabie in

a suit by the United States,” Pan American Petroleum &

Transport Co. v. United States, 273 U.S. 506 (1927), it follows

that the “clean hands” doctrine applies no less to the

government than to any other party.’ See ABF Freight Sysiem,

114 S. Ct. at 839 (where false testimony is “knowingly

exploited by a criminal prosecutor, such wrongdoing is so

‘inconsistent with the rudimentary demands of justice’ that it

can vitiate a judgment even after it has become final”);

Olmstead v. United States, 277 U.S. 438, 483-484 (1928)

(Brandeis, J., dissenting). Indeed, the Supreme Court has

emphasized that the “clean hands” doctrine applies with greater

force where, as here, the case is affected with a public purpose

(Precision Instrument,-324 U.S. at 815):

[W]here a suit in equity concerns the public interest as well

as the private interests of the litigants this doctrine assumes

even wider and more significant proportions. For if an

equity court properly uses the maxim to withhold its

assistance in such a case it not only prevents a wrongdoer

from enjoying the fruits of his transgression but averts an

injury to the public.

See generally Hazel-Atlas Glass Co. v. Hartford-Empire Co.,

5. “Certainly when seeking an equitable remedy the

United States is no more immune to the general principles of

equity than any other litigant.” United States v. Second Nat'l

Bank, 502 F.2d 535, 548 (5th Cir. 1974), cert. denied, 421 U.S.

912 (1975). Accord United States v. Wilson, 707 F.2d 304, 312

(8" Cir. 1982) (on denial of rehearing) (“It is well established

that the United States is subject to general principles of equity

when seeking an equitabie remedy”).

21

322 U.S. 238, 246 (1944) (in recognizing courts’ power to

vacate judgment procured by fraud, explaining that “tampering

with the administration of justice” in this way “involves far

more than an injury to a single litigant”; rather, “[i]t is a wrong

against the institutions set up to protect and safeguard the

public”).

2. In light of its unlawful conduct in this case, the

Government almost assuredly comes to court

with “unclean hands”.

United States has — so far — successfully argued that the

conduct of Barmes permits it to commit multiple violations of

the law. The record and evidence discloses that in a parallel

civil forfeiture case was filed on August 15, 2001, United States

recorded with the Knox County Circuit Court its Lis Pendens

Record. On September 26, 2001, the District Court’s Order was

entered terminating the case. Notwithstanding the fact that no

authority exists for United States to file a lis pendens in the first

instance; the case was closed; and no appeal is pending, United

States filed and has not released its Notice Of Lis Pendens.

This is potentially criminal conduct, including conspiracy, on

the part of all government officials responsible for the filing and

refusal to remove the Jis pendens. Barmes’ alleged conduct is

simply irrelevant to the unlawful conduct of United States’

officials.

Indiana’s lis pendens statute applies to claims “to enforce

any lien upon, right to, or interest in any real estate.” IC° § 34-

34-1-3(a)(3) [now 32-30-11-3(a)(3)]. The notice must include

the title of the court, the names of the parties, a description of

6. “IC” references are to ithe Indiana Code.

22

the real estate, and the nature of the lien, right, or interest

sought. IC § 34-34-1-3(b) [32-30-11-3(b). However, as

relcvant to the instant matter, IC § 32-30-11-3(a)(1) only

applies to a person who commences a suit “in any court of

Indiana or in a district court of the United States sitting in

Indiana.”

Accordingly, United States was without statutory authority,

_ as its counsel misrepresented in its Notice Of Lis Pendens, to

even file same, and it has unlawfully maintained the lis pendens

in knowing violation the law. See IC § 34-34-1 et seq. and 28

U.S.C. § 1964.

The record in this case discloses that during the multiple

searches and scizures, federal agents absconded with over

$300,000 in cash; stole property; destroyed property; and

conducted warrantless searches and seizures. Barmes has never

even received a detailed record of what was seized. Barmes has

also filed three motions to the District Court issuing the search

warrants to unseal the inventory, if any, but the Indiana District

Court has simply ignored all three motions even though United

States has filed no objection.

The Court may wish to consider, whether — in light of the

government’s unethical and potentially criminal conduct — the

“supervisory” power of the federal courts forbids, not permits,

the application of the disentitlement doctrine. “[T]he

supervisory power,” the Supreme Court has noted, “serves the

‘twofold’ purpose of deterring illegality and protecting judicial

integrity.” United States v. Payner, 447 U.S. 727, 736 n.8

(1980). See, e.g., Elkins v. United States, 364 U.S. 206 (1960):

Mallory v. United States, 354 U.S. 449 (1957); Mesarosh v.

United States, 352 U.S. 1 (1956); Upshaw v. United States, 335

U.S. 410 (1948); McNabb v. United States, 318 U.S. 332

23

(1943). By unlawfully filing a /is pendens without even

informing the District Court, the government critically

undermined the integrity of the judicial system. Moreover, “a

result which leaves intact a [lis pendens filed in] ... bad faith

may encourage repetition of the impropriety disclosed by the

record in this case.” Rinaldi v. United States, 424 U.S. 22, 31

n.17 (1977). See also id. at 34 (Rehnquist, J., dissenting) (“the

Government’s attempt to manipulate the use of judicial time

and resources through its capricious, inconsistent application of

its own policy clearly constitutes bad faith and a violation of the

public interest; our sanction of such conduct would invite future

misconduct by the Government’”). In short, assuming,

arguendo, that the supervisory power could ever permit

disentitlement in this setting, it cannot avail the government on

this record. Having violated the law and misled the lower

courts, the government has relinquished any right to call upon

the Court’s supervisory authority. To the contrary, if anyone

needed “supervision” in this case, it is the prosecutors

themselves. )

Because the Third Circuit Panel decision is contrary to

relevant decisions-of this Court, a writ of certiorari should issue.

CONCLUSION

For each and all of the above grounds, a writ of certiorari

should issue. The decisions below must be reversed.

Respectfully submitted,

Marvin L. Barmes

6392 E. Overhead Road

Vincennes, IN 47591

(812) 726-4973

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 03-3380

UNITED STATES OF AMERICA,

Appellee,

-vs-

MARVIN L. BARMES,

Appellant,

On Appeal from the United States District Court

For the Western District of Pennsylvania

(Dist. Ct. No. 03-cv-00133-1)

SUR PETITION FOR REHEARING

BEFORE: SCIRICA, Chief Judge, SLOVITER, NYGAARD,

ALITO, ROTH, MCKEE, RENDELL, BARRY, AMBRO,

FUENTES, SMITH, CHERTOFF, and GREENBERG

Circuit Judges'

The Petition for rehearing filed the Appellant in the above-

1. Judge Greenberg’s vote is limited to panel

rehearing only.

A-2

entitled matter, having been submitted to the judges who

participated in the decision of this court and to all other

available circuit judges in regular active service, and no judge

who concurred in the decision having asked for rehearing, and

a majority of the circuit judges in regular active service not

having voted for rehearing by this court en banc, the Petition for

Rehearing is hereby DENIED.

It is so ordered.

By the Court,

Richard L. Nygaard

United States Circuit Judge

DATE: January 8, 2004

CH/cce: Mr. Marvin L. Barmes

Paul M. Thompson, Esq.

Bonnie R. Scalueter, Esq.

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 03-3380

UNITED STATES OF AMERICA,

Appellee,

-vs-

MARVIN L. BARMES,

Appellant.

(W.D. of PA - Pittsburgh No. 03-cr-133-1) (DWA)

Present: Nygaard, Fuentes and Greenberg, Circuit Judges

Motion by Appellee for Summary Action,

Motion by Appellee to Stay Briefing Pending Resolution of

Motion for Summary Action.

Response by Appellant to Motion for Summary Action.

Carolyn Hicks, Case Manager

267-299-4926

ORDER

The foregoing matter is hereby dismissed pursuant to the

doctrine of fugitive disentitlement. See Molinaro v. New

Jersey, 396 U.S. 365 (1970); see also United States v. Wright,

B-2

902 F.2d 241 (3d Cir. 1990).

By the Court,

/s/Richard L. Nygaard

Circuit Judge

Dated: October 21, 2003

CH/ce: Mr. Marvin L. Barmes

Bonnie R. Schlueter, Esq.

Paul M. Thompson, Esq.