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JOSE ANTONIO ORTEGA-RODRIGUEZ

decided: March 8, 1993.

JOSE ANTONIO ORTEGA-RODRIGUEZ, PETITIONER
v.
UNITED STATES



ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT.

Stevens, J., delivered the opinion of the Court, in which Blackmun, Scalia, Kennedy, and Souter, JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in which White, O'connor, and Thomas, JJ., joined.

Author: Stevens

JUSTICE STEVENS delivered the opinion of the Court.

In United States v. Holmes, 680 F.2d 1372, 1373 (1982), cert. denied, 460 U.S. 1015, 75 L. Ed. 2d 486, 103 S. Ct. 1259 (1983), the Court of Appeals for the Eleventh Circuit held that "a defendant who flees after conviction, but before sentencing, waives his right to appeal from the conviction unless he can establish that his absence was due to matters completely beyond his control." Relying on that authority, and without further explanation, the court dismissed petitioner's appeal.*fn1 Because we have not previously considered whether a defendant may be deemed to forfeit his right to appeal by fleeing while his case is pending in the district court, though he is recaptured before sentencing and appeal, we granted certiorari. 504 U.S. (1992).

I

In the early evening of November 7, 1988, a Customs Service pilot was patrolling the Cay Sal Bank area, located midway between Cuba and the Florida Keys. Approximately 30 miles southwest of Cay Sal, the pilot observed a low-flying aircraft circling over a white boat and dropping bales. The boat, described by the pilot as 40 to 50 feet in length, was circling with the plane and retrieving the bales from the water as they dropped. Because the Customs Service plane was flying at an altitude of 2,500 feet, and visibility was less than optimal, the pilot was unable to identify the name of the boat. United States v. Mieres-Borges, 919 F.2d 652, 654-655 (CA11 1990), cert. denied, 499 U.S. , 113 L. Ed. 2d 728, 111 S. Ct. 1633 (1991); Report and Recommendation in United States v. Ortega-Rodriguez, No. 88-10035-CR-KING (SD Fla., Feb. 23, 1989).

The following morning, another Customs Service pilot found the Wilfred, a boat resembling the one spotted approximately 12 hours earlier. This boat, located just off the beach of Cay Sal, was described as a 30- to 40-foot sport-fishing vessel. Upon making this discovery, the pilot first flew to the drop point identified the night before, 30 miles away, and found no activity. Returning to Cay Sal, he found a number of bales stacked on the beach, and the Wilfred underway and headed toward Cuba.

The pilot alerted the captain of a Coast Guard cutter, who intercepted, boarded, and searched the Wilfred. He found no narcotics, weapons, or other incriminating evidence on the boat. Nevertheless, the three members of the crew failed to convince the Coast Guard that they were fishing for dolphin, although a large number of similar vessels frequently do so in the area. Mieres-Borges, 919 F.2d, at 655-657, 659-660.

Petitioner is one of the three crew members arrested, tried, and convicted of possession with intent to distribute, and conspiring to possess with intent to distribute, over five kilograms of cocaine. After the trial, the District Court set June 15, 1989, as the date for sentencing. Petitioner did not appear and was sentenced in absentia to a prison term of 19 years and 7 months, to be followed by 5 years of supervised release.*fn2 Though petitioner's co-defendants appealed their convictions and sentences, no appeal from the judgment was filed on petitioner's behalf.

The District Court issued a warrant for petitioner's arrest, and 11 months later, on May 24, 1990, he was apprehended. Petitioner was indicted and found guilty of contempt of court*fn3 and failure to appear.*fn4 Pursuant to the Sentencing Reform Act of 1984, 18 U.S.C. ยง 3551 et seq., the District Court imposed a prison sentence of 21 months, to be served after the completion of the sentence on the cocaine offenses and to be followed by a 3-year term of supervised release.*fn5

While petitioner was under indictment after his arrest, the Court of Appeals disposed of his two co-defendants' appeals. The court affirmed one conviction, but reversed the other because the evidence was insufficient to establish guilt beyond a reasonable doubt.*fn6 Also after petitioner was taken into custody, his attorney filed a "motion to vacate sentence and for resentencing," as well as a motion for judgment of acquittal. The District Court denied the latter but granted the former, vacating the judgment previously entered on the cocaine convictions.*fn7 The District Court then resentenced petitioner to a prison term of 15 years and 8 months, to be followed by a 5-year period of supervised release.*fn8 Petitioner filed a timely appeal from that final judgment.*fn9

On appeal, petitioner argued that the same insufficiency of the evidence rationale underlying reversal of his co-defendant's conviction should apply in his case, because precisely the same evidence was admitted against the two defendants. Without addressing the merits of this contention, the Government moved to dismiss the appeal. The Government's motion was based entirely on the fact that petitioner had become a fugitive after his conviction and before his initial sentencing, so that "under the holding in Holmes, he cannot now challenge his 1989 conviction for conspiracy and possession with intent to distribute cocaine."*fn10 In a per curiam order, the Court of Appeals granted the motion to dismiss.

II

It 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. The Supreme Court applied this rule for the first time in Smith v. United States, 94 U.S. 97, 24 L. Ed. 32 (1876), to an escaped defendant who remained at large when his petition arose before the Court. Under these circumstances, the Court explained, there could be no assurance that any judgment it issued would prove enforceable. The Court concluded that it is "clearly within our discretion to refuse to hear a criminal case in error, unless the convicted party, suing out the writ, is where he can be made to respond to any judgment we may render." Ibid. On two subsequent occasions, we gave the same rationale for dismissals based on the fugitive status of defendants while their cases were pending before our Court. Bonahan v. Nebraska, 125 U.S. 692, 31 L. Ed. 854, 8 S. Ct. 1390 (1887); Eisler v. United States, 338 U.S. 189, 93 L. Ed. 1897, 69 S. Ct. 1453 (1949).*fn11

Enforceability is not, however, the only explanation we have offered for the fugitive dismissal rule. In Molinaro v. New Jersey, 396 U.S. 365, 366, 24 L. Ed. 2d 586, 90 S. Ct. 498 (1970), we identified an additional justification for dismissal of an escaped prisoner's pending appeal:

"No persuasive reason exists why this Court should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints placed upon him pursuant to the conviction. While such an escape does not strip the case of its character as an adjudicable case or controversy, we believe it ...


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