Fugitive-Disentitlement Doctrine to Dismiss Appeal

Occasionally, our office receives phone calls from a person or a family of that person who has a pending bench or arrest warrant, or who has absconded from parole or probation, yet who wants an attorney to appear for him to ask a judge to decide something. 

We explain that such a motion, even if fundamentally meritorious, would be denied based on the fugitive-disentitlement doctrine.  We then explain what this is, explaining that Roman Polanski, for example, should not be allowed to appeal his statutory rape conviction while having fled justice and living in France, but the caller is often puzzled, nonetheless.  

We explain that if such an appeal otherwise were allowed, it would encourage absconding so that if the appeal is denied, the person avoids the consequences of the loss.  To use a metaphor, we explain to the caller the doctrine of “unclean hands,” which states that he who asks the court to do justice must come to court with clean hands.  

The caller usually still does not understand.  Why won’t the attorney accept the payment to prepare and file the motion, after all?

The following recent ruling from the United States Court of Appeals, Ninth Circuit, in Pasadena is presented to exemplify this doctrine applied.

In October 2020, Marietta Terabelian was arrested after an investigation into fraudulent applications for millions of dollars in COVID-19 relief loans.

She was later convicted of numerous band and wire fraud violations.  While Ms. Terabelian was awaiting sentencing, she removed her location monitoring device and fled to Montenegro, a small country near Italy along the Mediterranean Ocean.  

In the meantime, the U.S. District Court judge sentenced Ms. Terabelian to 72 months of imprisonment in federal prison and held her jointly and severally liable with three other co-conspirators for $17.7 million in restitution.

Her attorneys then filed an appeal in her absence. 

The U.S. Attorneys office moved to have the judge dismiss the appeal pursuant to the fugitive disentitlement doctrine.  Ortega-Rodriguez v. United States (1993) 507 U.S. 234, 239; see also Parretti v. United States (9th Cir. 1998) 143 F 3d 508, 510 (citing U.S. v. Sharpe (1985) 470 U.S. 675, 681, n. 2).  Alternatively, the U.S. Attorneys also argued that the appeal lacked merit.

Six months after she absconded, FBI agents located Ms. Terabelian.  

The U.S. Court of Appeals for the Ninth Circuit notified Ms. Terabelian that if she returned to the United States by November 2022, she could move to reinstate her appeal.  Her extradition was the canceled, however, when Montenegrin authorities discovered that she had a pending criminal case in Montenegro based on her use of fraudulent travel documents to enter the country.

Ms. Terabelian was finally extradited in mid-November 2022, and she was placed in federal U.S. custody since then. 

 

While in federal custody, Ms. Terabelian then asked the Ninth Circuit to not dismiss her appeal.

The Ninth Circuit dismissed her appeal, explaining that under the fugitive-disentitlement doctrine, an appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of an appeal.  The fugitive-disentitlement doctrine is a severe sanction that should be applied only in circumstances where (1) the appeal is a direct criminal appeal; (2) the appellant was a fugitive during the pendency of the appeal; and (3) where the traditional justifications of abandonment, deterrence, dignity of the courts, efficiency and enforceability support dismissal.  

Here, Ms. Terabelian undoubtedly filed a direct criminal appeal while she was a fugitive from justice.  Moreover, she flouted the dignity of the appellate practice throughout the judicial process and her appeal and fugitive status were almost entirely contemporaneous.  

Recapturing Ms. Terabelian involved a flurry of extraneous matters that diverted the attention of multiple judicial and enforcement agencies, and the Ninth Circuit determined that such a delay should not be tolerated.  The Ninth Circuit also found that dismissal of the appeal would deter similar behavior by future defendants.  Taken together, the Ninth Circuit concluded that the fugitive-disentitlement doctrine applied and dismissed Ms. Terabelian’s appeal.

We present this summary and ask the reader to note how Ms. Terabelian’s appeal might have been granted if she had not absconded, so absconding can be a terrible decision.