Giancarlo PARRETTI, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee

143 F.3d 508, 98 Cal. Daily Op. Serv. 3248, 98 Daily Journal DAR 4527, 1998 U.S. App. LEXIS 8414, 1998 WL 211734

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 1, 1998
• Docket: 95-56586
• Status: Published

Opinions

Opinion by Judge PREGERSON; Dissent by Judge REINHARDT.

PREGERSON, Circuit Judge:

I

We took this case en banc to consider whether the arrest of Giancarlo Parretti pursuant to an Extradition Treaty with France violated the Fourth Amendment and whether his detention without bail prior to France’s decision to request his extradition violated the Due Process Clause of the Fifth Amendment, or, whether this appeal should be dismissed under the fugitive disentitlement doctrine because Parretti fled the United States while his appeal was pending before a panel of this court. Because Parretti is a fugitive from justice, we exercise our discretion under the disentitlement doctrine and dismiss his appeal. Therefore, we find it unnecessary to address his constitutional claims.

II

In 1990, Pathe Communications Corporation, headed by Giancarlo Parretti, an Italian resident and citizen, purchased MGM-United Artists for $1.3 billion. As a result of this merger a new entity, MGM-Pathe Communications Corporation, was formed. The acquisition of MGM-United Artists was highly leveraged, and the new entity almost immediately faced cash flow problems. Several lawsuits were filed relating to the underlying leveraged transaction and the resulting merger.

On October 9, 1995, Parretti entered the United States from Italy to answer charges of perjury in connection with one of these suits filed in Delaware Superior Court, and to be deposed in connection with another suit filed in Los Angeles Superior Court. The next day, France forwarded a diplomatic note to the U.S. Department of State requesting Parretti’s “provisional arrest” pursuant to Article IV of the Treaty of Extradition between the United States and France, Jan. 6, 1909, U.S.-Fr., 22 U.S.T., 407, as amended, Feb. 12, 1970, T.I.A.S. 7075, so that he might be held in custody until France decided whether to request his extradition.

While in Los Angeles attending his deposition, Parretti was arrested based on allegations made in a French arrest warrant charging Parretti with extraditable offenses arising from the MGM-Pathe Communications Corporation merger.¹ After his arrest, Parretti was held without bail while the French government decided whether to request extradition. Parretti filed an application to be released on bail pending France’s extradition request. The district court denied Parretti’s application for bail even though the court believed that Parretti was not a flight risk. Parretti subsequently filed a petition for a writ of habeas corpus, which the district court also denied.

Parretti then filed a motion under Ninth Circuit Rule 27-3 seeking emergency review. On November 21, 1995, we granted Parretti’s motion for emergency review and ordered him released. Our ruling was based on two grounds. First, we found that Parretti’s arrest violated the Fourth Amendment because the government failed to make the required evidentiary showing of probable cause to believe he had committed an extraditable offense. Second, we held that Parretti’s detention without bail violated the Due Process Clause of the Fifth Amendment in light of the district court’s finding that he was not a flight risk. We required Parretti to surrender any passports in his possession to the district court and to obtain the district court’s consent before leaving the County of Los Angeles.

In January 1997, thirteen months after Parretti was released, Parretti fled the United States. On May 6, 1997, our court filed an opinion that set forth in detail our reasons for granting Parretti’s petition for habeas relief and petition for release pending France’s decision to request his extradition. See Parretti v. United States, 122 F.3d 758 (9th Cir.1997).

Ill

The Supreme Court has “consistently and unequivocally approve[d] dismissal as an appropriate sanction when a prisoner is a fugitive during the ongoing appellate process.” Ortega-Rodriguez v. United States, 507 U.S. 234, 242, 113 S.Ct. 1199, 1204-05, 122 L.Ed.2d 581 (1993) (internal quotations omitted). The fugitive disentitlement doctrine empowers us to dismiss the appeal of a defendant who flees the jurisdiction of the United States after timely appealing. An appellate court’s power to disentitle a fugitive from access to the appellate process is grounded in equity. See United States v. Sharpe, 470 U.S. 675, 681 n. 2, 105 S.Ct. 1568, 1572 n. 2, 84 L.Ed.2d 605 (1985); see also United States v. Van Cauwenberghe, 934 F.2d 1048, 1054 (9th Cir.1991) (noting that the equitable doctrine of fugitive disentitlement is one of long standing). Our court has exercised its discretion and dismissed the appeal of a criminal defendant who became a fugitive from justice while his appeal was pending. See United States v. Freelove, 816 F.2d 479, 480 (9th Cir.1987) (court ordered that the pending appeal of a fugitive be dismissed unless he surrendered to authorities within forty-two days of date of the order); cf. Hussein v. INS, 817 F.2d 63 (9th Cir.1986) (court refused to hear pending appeal when petitioner escaped from federal custody after filing of appeal).

Several rationales that underlie the fugitive disentitlement doctrine apply to this appeal. First, although Parretti’s status as a fugitive does not “strip the case of its character as an adjudicable ease or controversy,” it does disentitle him from calling upon the resources of the court to resolve his claims. Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 498-99, 24 L.Ed.2d 586 (1970) (per curiam). By fleeing the jurisdiction of the United States, Parretti forfeited his right to appellate review under the fugitive disen-titlement doctrine. See id. at 366, 90 S.Ct. at 498-99.

Second, Parretti has fled the United States. He remains a fugitive beyond the reach of this court’s jurisdiction. If we were to reach the merits of Parretti’s constitutional claims and affirm the district, court, such a decision could not secure Parretti’s presence before the district court, nor could it assure that any “judgment ... issued would prove enforceable.” Ortega-Rodriguez, 507 U.S. at 239-40, 113 S.Ct. at 1203-04 (noting that it is within a court’s discretion to refuse to hear a criminal case when the defendant fugitive cannot be made to respond to any ruling) (citing Smith v. United States, 94 U.S. 97, 24 L.Ed. 32 (1876)); cf. Katz v. United States, 920 F.2d 610, 612 (9th Cir.1990) (holding that the disentitlement doctrine was inapplicable because the defendant who sought judicial relief was no longer a fugitive), abrogated on other grounds by Lozada v. Deeds, 964 F.2d 956 (9th Cir.1992).

Third, “dismissal by an appellate court after a defendant has fled its jurisdiction serves an important deterrent function and advances an interest in efficient, dignified appellate practice.” Ortega-Rodriguez, 507 U.S. at 242, 113 S.Ct. at 1204-05 (citing Estelle v. Dorrough, 420 U.S. 534, 537, 95 S.Ct. 1173, 1175-76, 43 L.Ed.2d 377 (1975)).

Fourth, the adversary character of criminal litigation may be compromised when the defendant is a fugitive. See Sharpe, 470 U.S. at 724, 105 S.Ct. at 1595-96 (Stevens, J., dissenting). A defendant’s flight threatens the effective operation of the appellate process because the fugitive’s counsel may have little or no incentive to represent his client should further proceedings be necessary.

IV

In light of Parretti’s decision to flee the United States while this appeal was pending, we withdraw the panel opinion, 122 F.3d 758, and we exercise our discretion under the fugitive disentitlement doctrine and dismiss his appeal.

APPEAL DISMISSED.

1 . Parretti was arrested pursuant to a warrant issued by a United States Magistrate Judge on the basis of allegations contained in a “Complaint for Provisional Arrest Warrant” sworn to on information and belief by an assistant United States Attorney ("AUSA”) for the Central District of California, "acting on behalf of the Government of France.” The AUSA alleged that Parret-ti had been charged in an international arrest warrant issued in France on May 3, 1995. The French warrant charged- that Parretti had committed various offenses arising from his alleged looting of the French company Europe Image Distribution, one of MGM-Pathe's subsidiaries; that each of the offenses charged in the French warrant was an extraditable offense under the treaty; and that France had requested Parretti's "provisional arrest" under Article IV of the treats'-