United States v. Shalhoub (11th Cir., 4/28/17); Fugitive Disenfranchisement Doctrine, and a Bunch of Remedies that the Eleventh Circuit Declines to Apply to Appellant’s Case

May 9th, 2017
Elizabeth Franklin-Best

I like this case because it implicates a number of legal remedies that one does not ordinarily encounter during the course of things, and legal remedies are fun. Here, Shalhoub is a citizen of Saudi Arabia and lives there now.  Formerly, he was married to an American citizen with whom he had a child.  The specifics are not laid out, but it appears that while he and his child were in Saudi Arabia, a decision was made to stay there in violation of the child custody arrangements made during the course of their divorce.  All this happened roughly 20 years ago and Shalhoub was indicted on one count of international parental kidnapping in violation of 18 USC §1204.

Fast forward and Shalhoub wanted to hire a lawyer to appear for him in the United States and contest the indictment.  He did not want to show up himself.  The district court said, “no way” and Shalhoub appealed arguing that the denial of his right to have a lawyer appear on his behalf while he is a fugitive from justice is an immediately appealable collateral order and, if not, that the 11th Circuit should issue a writ of mandamus to compel a ruling on the motion to dismiss the indictment without requiring him to appear in court.

The fugitive disentitlement doctrine allows a district court to “sanction or enter judgment against parties on the basis of their fugitive status.”  Magluta v. Samples, 162 F.3d 662, 664 (11th Cir. 1998).  Essentially, courts do not like it when people flee from their jurisdiction.  This doctrine discourages flights from justice and protects the dignity of the courts.  Ortega-Rodriguez v. United States, 507 U.S. 234 (1993).  Shalhoub argued that application of this doctrine to his case was error.  The 11th Circuit found that it lacked jurisdiction over this case because a final judgment has not been entered.  The “final judgment rule” prohibits appellate review of a pretrial order in a criminal case “until conviction and imposition of sentence.”  Flanagan v. United States, 465 U.S. 259, 263 (1984).  An exception to the final judgment rule is the “collateral order doctrine” which allows review of an order that (1) conclusively determines the disputed question, (2) resolves an important issue completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgment.”  Since Shalhoub was neither convicted nor sentenced, the Eleventh Circuit found it did not have jurisdiction.

Shalhoub also argued the Court could decide the case under the doctrine of “marginal finality.” An order that presents a question of “marginal” finality “fundamental to the further conduct of the case” is immediately appealable.  Gillespie v. U.S. Steel Corp., 379 U.S. 148, 152, 154 (1964).  As the Court notes, however, that case was limited to the unique facts of that particular case. The Court once again declined and found that it was inconsistent for a litigant to assert that the Court has appellate jurisdiction under the collateral order doctrine, which requires the issue resolved to be completely separate from the merits, and the marginal finality doctrine which addresses the review of intermediate issues “fundamental to the further conduct of the case.”  See Alt. Fed. Sav. & Loan Ass’n of Ft. Launderdale v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 377 (11th Cir. 1989).

And lastly, the Court declined the petition for writ of mandamus, noting that such a “drastic and extraordinary” remedy that they are clearly NOT going to extend to someone who stole his kid and refuses to submit to the jurisdiction of the United States courts.  As the Court noted on a few occasions in this opinion, Shalhoub just needs to come to court and figure out this whole mess.  My guess is that he will continue in his fugitive status.  No love for Shalhoub from the 11th Circuit.  Great lawyering, though.

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