JULIO REYNOSO, PETITIONER V. UNITED STATES OF AMERICA No. 89-6446 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Second Circuit Brief For The United States In Opposition OPINION BELOW The summary order of the court of appeals (Pet. App. 1-2) is not reported. JURISDICTION The judgment of the court of appeals was entered on September 25, 1989. A petition for rehearing was denied on November 9, 1989 (Pet. App. 3). The petition for a writ of certiorari was filed on January 16, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the court of appeals had discretion to dismiss petitioner's appeal on the ground that he failed to appear for sentencing and temporarily became a fugitive from the judicial process. STATEMENT Following a jury trial in the United States District Court for the Southern District of New York, petitioner was convicted on two counts of possessing cocaine with intent to distribute, in violation of 21 U.S.C. 841(a), and one count of conspiring to distribute cocaine, in violation of 21 U.S.C. 846. He was sentenced to 135 months' imprisonment, to be followed by four years of supervised release. The court of appeals dismissed the appeal by summary order (Pet. App. 1-2). 1. The pertinent facts are summarized in the summary order of the court of appeals. Following the jury's verdict on October 7, 1988, the district court set sentencing for November 18, 1988, ordered petitioner continued on bail, and instructed him to appear on November 18. When petitioner failed to appear at sentencing, the district court issued a warrant for his arrest. On February 2, 1989, petitioner was arrested on unrelated narcotics charges, returned to federal custody, and sentenced on his drug convictions. He subsequently pled guilty to bail jumping and was sentenced for that offense to 18 months' imprisonment, to be followed by two years of supervised release. The court ordered that the bail-jumping sentence run consecutively to the sentences previously imposed for the drug offenses. Pet. App. 1-2. 2. On appeal from his drug convictions, petitioner contended that the district court incorrectly instructed the jury on the elements of conspiracy and that the government improperly introduced the post-arrest statement of a codefendant. Relying on Second Circuit decisions /1/ holding that an appellate court has discretion to decline to hear an appeal when the appellant has jumped bail while awaiting sentencing and has become a fugitive from the judicial process, the court dismissed the appeal. Pet. App. 2. The court rejected the argument that dismissal was inappropriate because petitioner was a fugitive for only about two-and-a-half months, explaining that that circumstance "does not refute the basic policy considerations of deterring both escape and the flouting of the judicial process." Ibid. The court added that if it were to reach the merits of petitioner's appeal, which it had carefully examined, it would affirm the judgment of conviction. Ibid. ARGUMENT Petitioner seeks review of the question whether the dismissal of his appeal denied him due process. Pet. 4. It is well settled that appellate courts have authority to dismiss an appeal when a convicted defendant becomes a fugitive while an appeal is pending and is not recaptured. See, e.g., Molinaro v. New Jersey, 396 U.S. 365, 366 (1970) (per curiam); United States v. Sperling, 506 F.2d 1323, 1345 n.33 (2d Cir. 1974), cert. denied, 420 U.S. 962 (1975). See also Estelle v. Dorrough, 420 U.S. 534 (1975) (per curiam). The courts also have held that an appeal may be dismissed where the defendant absconded after the appeal was taken but was recaptured prior to oral argument. See United States v. Puzzanghera, 820 F.2d 25 (1st Cir.), cert. denied, 484 U.S. 900 (1987). However, the courts of appeals have split on the precise question presented here: whether they have authority to dismiss an appeal raising trial errors where the appellant has become a fugitive while awaiting sentencing and pursues the appeal after being recaptured and sentenced. Compare United States v. DeValle, 894 F.2d 133, 135-136 (5th Cir. 1990); United States v. Parrish, 887 F.2d 1107 (D.C. Cir. 1989); United States v. Persico, 853 F.2d 134, 138 (2d Cir. 1988); United States v. Holmes, 680 F.2d 1372 (11th Cir. 1982), cert. denied, 460 U.S. 1015 (1983) (permitting dismissal), with United States v. Anagnos, 853 F.2d 1, 2 (1st Cir. 1988) (declining to permit dismissal). As the majority of these decisions recognize, most of the considerations that justify dismissal of the appeal of a defendant who becomes a fugitive after sentencing and while an appeal is pending also apply where a defendant absconds before sentencing. See, e.g., United States v. Persico, 853 F.2d at 136-138. It is also significant that courts retain discretion to dispose of an appeal on the merits if the circumstances justify that course. In any event, this is not an appropriate case in which to consider the question whether courts have discretion to dismiss appeals by defendants who have fled after the entry of a guilty verdict but before sentencing. The court of appeals' summary order makes clear that the court carefully examined the merits of petitioner's claims and that, but for the dismissal, it would have affirmed the convictions. The petition does not seek further review of those claims or demonstrate that they are deserving of this Court's attention. Even if petitioner were to prevail on the question presented in the petition, he would not be entitled to any relief from his conviction. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General JOEL M. GERSHOWITZ Attorney APRIL 1990 /1/ United States v. Alvarez, 868 F.2d 547, 548 (2d Cir. 1989); United States v. Persico, 853 F.2d 134, 138 (2d Cir. 1988).