07-0149 | Omnilex

Texto completo

07-0149
USA v. Zedner

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UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term, 2007

(Argued: April 24, 2008

Decided: October 28,2008)

Docket No. 07-0149

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UNITED STATES OF AMERICA,

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Appellee,

\- v. -

JACOB ZEDNER,

Defendant-Appellant.

Before: KEARSE and POOLER, Circuit Judges, and COTE, District

Judge* .

Appeal from a judgment of the United States District Court
for the Eastern District of New York convicting defendant of
attempted bank fraud, see 18 U.S.C. § 1344; motion by the United
States to dismiss the appeal on the ground that the defendant is a
fugitive.

Motion granted; appeal dismissed with prejudice.
Judge Pooler dissents in a separate opinion.

CARRIE CAPWELL, Assistant United States
Attorney, Brooklyn, New York (Roslynn R.
Mauskopf, United States Attorney for the

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\* Honorable Denise Cote, of the United States District Court for
the Southern District of New York, sitting by designation.

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Eastern District of New York, Emily Berger,
Assistant United States Attorney, Brooklyn,
New York, on the brief) , for Appellee.

EDWARD S. ZAS, New York, New York (Federal
Defenders of New York, Inc., Appeals
Bureau, New York, New York, on the brief) ,
for Defendant-Appellant.

KEARSE, Circuit Judge:

Defendant Jacob Zedner, an original indictment against
whom was dismissed without prejudice on speedy trial grounds, has
appealed from a judgment entered in the United States District
Court for the Eastern District of New York following a December
2006 jury trial before Arthur D. Spatt, Judge, convicting him on
three counts of a new indictment charging him with attempted bank
fraud, in violation of 18 U.S.C. § 1344, and sentencing him

principally to a "time served" term of imprisonment and a three-
year term of supervised release. On appeal, Zedner contends
principally (1) that in December 2006, jurisdiction of his case
was in this Court rather than in the district court, and hence his
2006 conviction is a nullity; and (2) that if the district court
had jurisdiction, it should have, pursuant to the Speedy Trial
Act, 18 U.S.C. § 3161 et seq., dismissed the original indictment
with prejudice, rather than without prejudice.

Having been sentenced to time served, Zedner was released
from custody in December 2006 and commenced service of his
supervised-release term. The government moves to dismiss his
appeal on grounds that, following his release and during the
pendency of this appeal, Zedner has become, and remains, a

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fugitive. For the reasons that follow, we grant the motion and
dismiss the appeal with prejudice.

# I. BACKGROUND

Zedner was first indicted in 1996 on several counts of,
inter alia, attempting to defraud financial institutions by
seeking substantial loans through the use of patently fraudulent
"Treasury bonds" as security. The case was originally assigned to
Thomas C. Platt, Judge. The course of the prosecution, prolonged
by, inter alia, concerns for Zedner's competency, is chronicled in
several opinions, familiarity with which is assumed. See, e.q.,
United States v. Zedner, 193 F.3d 562 (2d Cir. 1999) ("Zedner I")
(vacating a 1998 district court order that found Zedner
incompetent to stand trial following a hearing at which he
appeared pro se, and directing that the court appoint counsel to
represent Zedner at a new hearing) ; United States v. Zedner, 29
Fed. App'x 711 (2d Cir. 2002) ("Zedner II") (affirming a 2001
order finding that Zedner was then incompetent to stand trial) ;
United States v. Zedner, 401 F.3d 36 (2d Cir. 2005)

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("Zedner III") (following a 2002 determination that Zedner was
competent to stand trial and a 2003 trial, affirming his
conviction; rejecting claims of error in, inter alia, the
administration of the Speedy Trial Act, the admission of evidence,
and the jury instructions; but remanding for resentencing) , rev'd,
Zedner v. United States, 547 U.S. 489, 509 (2006) ("Zedner IV")

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(reversing, on speedy' trial grounds, the affirmance of Zedner's
conviction and "leav[ing] it to the District Court to determine in
the first instance whether dismissal should be with or without
prejudice") .

## A. The Proceedings After Zedner IV

Following the Supreme Court's Zedner IV decision reversing
Zedner's 2003 conviction, Zedner moved in this Court to have his
case remanded to a different district judge. In an order entered
on September 19, 2006, we denied that motion and remanded the case
to the district court for further proceedings in accordance with
the Supreme Court's opinion in Zedner IV. See United States v.
Zedner, No. 04-0821 (2d Cir. Sept. 19, 2006) ("Zedner V"). The
mandate, however, which normally would have issued 21 days
thereafter, see Fed. R. App. P. 41 (b) - (c), 40 (a) (1), did not issue
until February 1, 2007.

In the meantime, following our order in Zedner V,
proceedings were resumed in the district court. After expedited
briefing by the parties as to whether the Speedy Trial Act
dismissal should be with or without prejudice, Judge Platt entered
an order on October 13, 2006, dismissing the 1996 indictment
without prejudice. See United States v. Zedner, No. 96 Cr. 285
(E.D.N.Y. Oct. 13, 2006) ( "Zedner VI") . On the same day, agents
of the United States Secret Service rearrested Zedner for
attempted bank fraud; a grand jury thereafter returned a new
indictment against him, charging him with three counts of

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attempting to defraud financial institutions, in violation of
18 U.S.C. § 1344. Judge Platt having recused himself from further
proceedings involving Zedner upon deciding Zedner VI, the new case
was assigned to Judge Spatt.

Zedner moved for reconsideration of Zedner VI, contending
that the dismissal should have been with prejudice. Judge Spatt
denied the motion, stating that Judge Platt had analyzed all of
the pertinent statutory factors and had not overlooked any factual
matters or controlling precedent. See United States v. Zedner,
No. 06 Cr. 717 (E.D.N.Y. Nov. 17, 2006) ( "Zedner VII") .

Zedner was tried on the new indictment in December 2006
and was found guilty on all counts. He was sentenced principally
to a "time served" prison term and a three-year term of supervised
release, and was promptly released to commence serving his term
of supervised release. The conditions of his supervised release
included the standard requirement that Zedner not leave the
judicial district without the permission of the court or his
probation officer and the special condition that Zedner receive
extensive mental health therapy, including in-patient treatment if
necessary, at the discretion of the Probation Department.

B. The Present Appeal and the Government's Motion To Dismiss

On January 3, 2007, Zedner commenced the present appeal,
challenging both the decision in Zedner VI, which declined to
dismiss the original indictment with prejudice rather than without
prejudice, and the 2006 judgment of conviction. With respect to

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his conviction, Zedner's principal contention is that because the
mandate of this Court with respect to our September 19, 2006 order
in Zedner V did not issue until February 1, 2007, jurisdiction of
his case remained in this Court until the latter date, making his
December 2006 trial in the district court a nullity. Zedner also
argues that there were two errors in the conduct of the trial.

The government defended the district court's Zedner VI
decision to dismiss the 1996 indictment without prejudice on the
ground that the court had considered all of the applicable
factors, and the decision not to dismiss with prejudice was within
the court's discretion. The government argued that the trial of
Zedner prior to the issuance of the mandate on the Zedner V order
did not require vacatur of his conviction because the mandate rule
does not create inflexible jurisdictional boundaries and the
nonissuance of the mandate (which had gone unnoticed by the
parties and the district court) was a technical defect that did
not amount to plain error.

The parties' briefing of the appeal was complete by early
July 2007. In August 2007, Zedner informed the Probation
Department that his brother had passed away in Israel. Zedner
requested permission to go to Israel; on the recommendation of his
probation officer, the district court gave Zedner permission to go
to Israel for two weeks. Zedner left the United States for that
two-week trip in September 2007; he has never returned.

In March 2008, the government, invoking the fugitive
disentitlement doctrine, which recognizes our discretion to

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dismiss the appeal of a party who has become a fugitive during the
pendency of his appeal, see Part II below, moved to dismiss
Zedner's appeal with prejudice on the ground that he had become,
and remains, a fugitive. In support of its motion, the government
submitted a "Violation of Supervised Release" report by the
Probation Department dated February 13, 2008 (or "Violation
Report" or "Report"), addressed to the district court, charging
that Zedner had violated the terms of his supervised release by
failing to report to his probation officer as instructed and,
without timely notice, changing his residence. The Report stated,
inter alia, that Zedner "traveled to Israel on September 9, 2007,
thereby requiring him to return on or before September 23, 2007.
To date, he has failed to return." (Violation of Supervised
Release report dated February 13, 2008, at 7.)

To the extent pertinent here, the Report detailed the
permission that Zedner had been given for a two-week trip to
Israel, and Zedner's failure to return to the United States, as
follows :

On August 20, [ ]2007, the defendant contacted
the probation officer to advise that his brother had
passed away in Israel and as such, he was seeking
permission to travel there. The following day, upon
a recommendation from the probation officer, the
Court authorized permission for Pretrial Services to
return the defendant's passport to him temporarily
and also granted the defendant permission to travel
internationally for a two week trip to Israel. On
August 27, 2007, the defendant picked up his expired
Israeli passport and a copy of the Court's order
permitting him to travel to Israel. At that time, he
acknowledged understanding that he was taking a risk
in leaving the U.S. without a current passport. He
insisted that he would be able to have a new one
issued to him at the U. S. Embassy in Israel. On that

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date, the defendant was specifically warned that if
he did not return within two weeks of leaving the
United States, he would be considered in violation
and believed to have absconded from supervision.

On September 9, 2007, the defendant left a voice
mail message advising the probation officer that he
was leaving for Israel that date and stated that "God
willing, I will be back in two weeks." Later that
month, the defendant's criminal attorney, Tracey
Gaffey, Esq. advised the probation officer that the
defendant was reportedly "stuck" in Israel as he was
having difficulty obtaining a U.S. Passport. On
October 2, 2007, the Probation Department responded
to a request from the U.S. Consulate in Israel. They
were seeking a photograph of the defendant as well as
confirmation that our office did not object to the
defendant's requests for a U.S. Passport. The
photograph was provided and the Probation Department
solicited the Consulate's assistance in helping the
defendant obtained [sic] the documents needed to
return to the U.S.

Subsequently, on October 16, 2007, a message was
left on the defendant's home answering machine
inquiring as to the defendant's whereabouts but the
probation officer received no response from the
defendant or his family. Subsequently, a written
notice was sent to the defendant's home instructing
him to report to the Probation Department on November
13, 2007. He failed to report as directed. The
probation officer contacted Ms. Gaffey on that date
and she advised that it was her understanding the
defendant remained in Israel and that the U.S.
Embassy there had refused to issue him any travel
documents. She instructed the probation officer to
contact the defendant's appeals attorney, Edward
Zass [sic], Esq. Mr. Zass [sic] was contacted and he
informed that he had been in contact with the
defendant via e-mail. He provided the defendant's
e-mail address to the probation officer.

On November 19, 2007, the probation officer
e-mailed the defendant with instructions for him to
contact the probation officer in regards to his
situation with the U.S. Embassy as he was considered
to be in violation of his supervised release term for
failing to return from his trip as directed. That
date, he responded via e-mail and informed that his
passport had not been renewed and as such, he had no
authorization to leave Israel. The defendant
promised to provide documentation from the U.S.

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Embassy regarding their refusal to renew his
passport. No such documentation was provided. In an
e-mail sent to the defendant on November 30, 2007,
the probation officer requested for [sic] more
information regarding the defendant's contact at the
U. S. Embassy or the Israeli Consulate. The defendant
did not respond to this request.

On December 5, 2007, the probation officer
contacted Ms. Regina Ballard of the U.S. Department
of State regarding Zedner's claims that he was being
denied a passport. Ms. Ballard advised that the
defendant's statements regarding the renewal of his
passport were false. In fact, Ballard informed that
in October 2007, the U.S. Embassy in Israel had
offered the defendant a limited passport which would
have allowed him to return to the U.S. but he refused
it, as he wanted a full validity passport. He was
reportedly told that this request could be considered
once he returned to the U.S. with the limited
validity passport.

In early January 2008, the probation officer was
put in contact with Elisa Green of the U.S.
Department of State. She confirmed that the U.S.
Embassy's offer to issue a limited passport to the
defendant was still valid. As such, on January 11,
2008, the probation officer sent an e-mail to the
defendant advising him on how to obtain a limited
passport. The e-mail also directed him to return to
the U.S. and to report to the probation officer on
February 12, 2008. He was warned that failure to
comply would result in the filing of violation
charges. On January 14, 2008, the defendant replied
with an e-mail stating that he did not have the
financial means to return to the U.S. The defendant
has not contacted the probation officer since that
time and failed to report as directed on February 12,
2008.

(Violation of Supervised Release report dated February 13, 2008,
at 4-6 (emphases added) ; see also id. at 9 (" [I]n his January 2008
e-mails, the defendant reported that his lack of financial
resources kept him from returning to the U.S. ") .) The Report
added that Zedner, in his e-mails,

also stated that he had been arrested for assault in

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Israel on January 12, 2008 and that as the case was
still open, he was not permitted to leave Israel.

(Id. at 9-10.)

Zedner, in a declaration submitted by his appellate
counsel (see Declaration of Edward S. Zas dated April 4, 2008
( "Zas Declaration" or "Zas Decl. ") ), opposes the government's
motion to dismiss his appeal. Zedner contends principally that
the government has not proven that he is a fugitive and thus that
the principles underlying the fugitive disentitlement doctrine
militate against application of that doctrine to him.

As to the Violation Report as the government's basis for
asserting that Zedner is a fugitive, the Zas Declaration states
that "Mr. Zedner's counsel first received the Report on or about
March 24, 2008, when it was served along with the Government's
motion to dismiss the appeal"; it argues that " [t]he Report was
never filed with the clerk of the district court and was never
served on defense counsel; thus, it was never subject to
adversarial testing." (Zas Decl. | 7.) The Zas Declaration does
not challenge the Report's assertions as to the events, e.g., that

Zedner was given permission to leave the United States for only
two weeks and was warned that if he failed to return within two
weeks after his departure he would be considered to have
absconded; that Zedner claimed to have difficulty in obtaining a
passport from the United States Embassy in Israel; that Zedner was
told by the United States Embassy that he would be granted a
limited passport if he first presented a valid airline ticket for
the United States; that Zedner promised to provide his probation

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officer with documentation as to his difficulty in obtaining a
passport but provided no such documentation; that Zedner did not
respond to his probation officer's request for more information;
and that Zedner has not returned to the United States. The Zas
Declaration adds information that counsel received directly from
Zedner:

Mr. Zedner advised the undersigned in October 2007
. . . that he was told that he would only be granted
a limited passport if he first presented a valid
airline ticket for the United States and that he did
not have any money to purchase such a ticket.

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11\. In November 2007, Mr. Zedner contacted me
again and advised that he still could not obtain a
passport to return to the United States. He told me
that he wanted to come back to this country, but had
no money, no home, and was living "in a strange
place. "

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12\. On January 14, 2008, Mr. Zedner advised his
probation officer and his counsel by e-mail (annexed
hereto as Exhibit "A") that he had been arrested for
assault in Israel on January 12, 2008. He stated
that he had been released to his sister's custody on
bond but, as the case was still under investigation,
he was not permitted to leave Israel. The Report
recounts that Ms. Ballard of the U.S. State
Department contacted the Israeli police, who
supposedly told her that the defendant was questioned
regarding an alleged assault that took place on
January 12, 2008. Report, at 10. The Report states:
"Although they would not provide details of the
allegations, they did state that the case remains
under investigation but that the defendant had been
questioned and released the same day. Report, at
10\. Significantly, the Report does not dispute Mr.
Zedner's contention that he was arrested before being
released and that he is not legally permitted to
leave Israel while the assault investigation
continues. The Probation Department has in fact
advised defense counsel that it does not know whether
he is free to leave Israel at the present time. See
Declaration of Tracey L. Eadie Gaffey, Esq., executed
April 2, 2008, 1 3 (annexed hereto as Exhibit "B") .

## (Zas Decl. 11 10-12 (emphases added) . ) 43

The Zas Declaration argues that the government has failed
to prove that Zedner is a fugitive because it has not shown that
his failure to return to the United States is willful:

Mr. Zedner . . . has apparently made genuine, albeit
unsuccessful, efforts to obtain travel documents that
would enable him to return to the United States. Mr.
Zedner has also advised his probation officer and his
counsel -- without dispute from the Government -- that
his current bail conditions in Israel prevent him
from leaving that jurisdiction. The Probation
Department in fact concedes that it does not know
whether Mr. Zedner is free to return to the United
States. Accordingly, the Government, as the moving
party, has not sustained its burden of showing that
he is currently a "fugitive."

14\. Further, because the Government's motion is
based entirely on unsworn hearsay allegations -- many
of which Mr. Zedner disputes -- an evidentiary hearing
in the district court would be necessary before the
motion could be granted. Such a hearing would allow
Judge Spatt to hear the witnesses, including, if
possible, the State Department official and Mr.
Zedner via teleconference, and to resolve the
disputed factual issues presented by the Government 's
motion. These disputed issues include whether Mr.
Zedner is free to leave Israel and return to the
United States and whether his failure to return has
been willful or simply the product of his well-
documented mental illness or his indigency.

(Zas Decl. 11 13-14 (emphasis added) . )

The Zas Declaration argues that Zedner "wants to return to
the United States once Israel permits him to leave" and that
"there is every reason to believe" that he would do so,
"particularly if the United States Government would be willing to
pay for his return to this country." (Zas Decl. [ 16.) It argues
that there is no basis for imposing any sanction on Zedner, either
as a "penalty" or in the interest of "deterring flight [, ]

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because the Government has not shown that Zedner's failure to
return to the United States is willful." (Id. | 17.)

Having scheduled oral argument on Zedner's appeal for
April 24, 2008, this Court heard argument on the motion in tandem
with oral argument of the appeal. Upon due consideration, we now
grant the government's motion to dismiss.

## II. DISCUSSION

### A. The Fugitive Disentitlement Doctrine

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.

Ortega-Rodriquez v. United States, 507 U.S. 234, 239 (1993) ; see,
e.g., Estelle v. Dorrough, 420 U.S. 534 (1975) ; Molinaro v. New
Jersey, 396 U.S. 365 (1970); Allen v. Georgia, 166 U.S. 138
(1897) ; Bonahan v. Nebraska, 125 U.S. 692 (1887) ; Smith v. United
States, 94 U.S. 97 (1876). In Ortega-Rodriquez, the Court noted
that its "consistent [] and unequivocal [] approv [al of] dismissal
as an appropriate sanction when a prisoner is a fugitive during
the ongoing appellate process," 507 U.S. at 242 (internal
quotation marks omitted), rests on any of "a number of
justifications, " id.

For example, in dismissing the previously granted writ of
error in Smith, the Court based its decision on the lack of any
assurance that its appellate decision would be enforceable and on

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its unwillingness to waste judicial resources on a decision that
the defendant could then render moot :

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. In this case
it is admitted that the plaintiff in error has
escaped, and is not within the control of the court
below, either actually, by being in custody, or
constructively, by being out on bail. If we affirm
the judgment, he is not likely to appear to submit to
his sentence. If we reverse it and order a new trial
he will appear or not, as he may consider most for
his interest. Under such circumstances, we are not
inclined to hear and decide what may prove to be only
a moot case.

94 U.S. at 97 (emphasis added) .

In Allen, the Court found a state appellate court's
dismissal of an escaped defendant's appeal justified as
punishment. Rejecting a due process challenge to the state
court's dismissal of the appeal and refusal to reinstate the
appeal following the defendant's subsequent recapture, the Supreme
Court noted that holding the defendant to have abandoned his
appeal "seems but a light punishment" for his escape during the
appeal. 166 U.S. at 141.

In Molinaro, in which the convicted defendant became a
fugitive during his appeal to the United States Supreme Court, the
Court discussed the dismissals in Smith, Allen, and similar cases
and stated:

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 disentitles the

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defendant to call upon the resources of the Court for
determination of his claims.

Molinaro, 396 U.S. at 366 (emphasis added). " [T]he premise of
Molinaro's disentitlement theory is that the fugitive from
justice has demonstrated such disrespect for the legal processes
that he has no right to call upon the court to adjudicate his
claim. " Ortega-Rodriquez, 507 U.S. at 246. The Ortega-Rodriquez
Court held that dismissal of the appeal is not always justifiable
when a defendant has absconded and been "returned to custody
before invocation of the appellate system, " id. at 249 (emphasis
added), but stated that it "ha [d] no reason . . . to question the
proposition that an appellate court may employ dismissal as a
sanction when a defendant's flight operates as an affront to the
dignity of the court's proceedings, " id. at 246.

In Estelle v. Dorrough, 420 U.S. 534, the Supreme Court
found dismissal of an appeal justified by the goals of punishment
and deterrence, even with respect to a fugitive who, having
escaped during the appeal, was recaptured before its actual
dismissal. In that case, as described in Ortega-Rodriquez, the
Court

followed Allen ... , upholding the
constitutionality of a Texas statute providing for
automatic appellate dismissal when a defendant
escapes during the pendency of his appeal, unless the
defendant voluntarily returns within 10 days.
Although the defendant in Estelle had been recaptured
before his appeal was considered and dismissed,
resolving any enforceability problems, there were, we
held, other reasons for dismissal. Referring to our
own dismissal in Molinaro, we found that the state
statute served "similar ends. . . . It discourages
the felony of escape and encourages voluntary

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surrenders. It promotes the efficient, dignified
operation of the Texas Court of Criminal Appeals. "

Ortega-Rodriquez, 507 U.S. at 241 (quoting Estelle v. Dorrough,
420 U.S. at 537) (emphasis ours) .

Moreover, in Ortega-Rodriquez, the Court noted that, in a
case that is "pending before the district court, flight can be
deterred with the threat of a wide range of penalties available to
the district court judge"; but when the defendant absconds after
jurisdiction has vested in the appellate court, the only effective
deterrent to escape that is available to the court of appeals may
be dismissal of the appeal. 507 U.S. at 247. Thus, "dismissal by
an appellate court after a defendant has fled its jurisdiction
serves an important deterrent function
II
Id. at 242.

In addition, the Ortega-Rodriquez Court recognized that a
prolonged escape from custody -- even if the escape preceded the
filing of the appeal -- might make dismissal of the appeal an
appropriate sanction on the ground that the government would be
prejudiced in locating witnesses and presenting evidence at a
retrial after a successful appeal. See id. at 249.

Distilling these principles, this Court has summarized
the various justifications for deciding "to dismiss a criminal
appeal pursuant to the fugitive disentitlement doctrine" as

1\) assuring the enforceability of any decision that
may be rendered against the fugitive; 2) imposing a
penalty for flouting the judicial process; 3)
discouraging flights from justice and promoting the
efficient operation of the courts; and 4) avoiding
prejudice to the other side caused by the defendant's
escape.

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United States v. Awadalla, 357 F.3d 243, 245 (2d Cir. 2004)
("Awadalla") (internal quotation marks omitted) ; see, e.g., United
States v. Persico, 853 F.2d 134, 137 (2d Cir. 1988) (holding that
a defendant who absconded during the district court proceedings
and was recaptured before sentencing waived the right to review
of challenges to pre-escape rulings) ; United States v. Morgan, 254
F.3d 424, 426-28 (2d Cir. 2001) (both (a) affirming the district
court's application of the fugitive disentitlement doctrine in
refusing to entertain a motion, made after the defendant's escape
and return to custody, to withdraw a guilty plea entered prior to
escape, and (b) applying that doctrine on appeal in refusing to
consider the defendant's appellate challenges relating to the
plea) , cert. denied, 536 U.S. 913 (2002); see also Gao v.
Gonzales, 481 F.3d 173, 175, 177 (2d Cir. 2007) ("Gao") (applying
fugitive disentitlement doctrine in dismissing petition of an
alien for review of an order of the Board of Immigration Appeals
("BIA"), and stating that "Gao's fugitive status means that there
is no assurance that any decision or order we render against him
will be enforced. The gravamen of his petition is the posture of
'heads I win, tails you'll never find me. '") , cert. denied, 128 S.
Ct. 959 (2008) ; Bar-Levy v. U.S. Dep't of Justice, 990 F.2d 33, 34
(2d Cir. 1993) (alien's "fail [ure] to surrender for deportation
makes him a 'fugitive from justice' and therefore brings
him within the ambit of cases in which courts exercise their
discretion to dismiss appeals by fugitives") ; Empire Blue Cross &
Blue Shield v. Finkelstein, 111 F.3d 278, 282 (2d Cir. 1997)

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(applying the doctrine in dismissing the appeal of civil
defendants who appealed from "an immense judgment" entered against
them, then disappeared and could not be located or served with
arrest warrants, rendering the "judgment against them
unenforceable" (internal quotation marks omitted) ) ; but see Degen
v. United States, 517 U.S. 820, 825-28 (1996) (the justifications
that warrant dismissal of a fugitive defendant's appeal from his
conviction are less applicable to a suit for forfeiture of a
defendant's property and do not permit the district court to
strike his filings or grant summary judgment against him in that
suit for failing to appear in a related criminal prosecution),
superseded by statute, Civil Asset Forfeiture Reform Act of 2000,
Pub. L. No. 106-185, 114 Stat. 202.

In the context of an appeal by a fugitive who is
challenging his criminal conviction, each of the factors relied on
by the Supreme Court in Smith, Molinaro, Allen, and Estelle v.
Dorrough, discussed in Ortega-Rodriquez, and summarized in
Awadalla is an independently sufficient basis on which to apply
the fugitive disentitlement doctrine and dismiss the appeal. See
Awadalla, 357 F.3d at 247; see also Gao, 481 F.3d at 176 (same
with respect to a fugitive alien challenging a BIA decision) .

### B. Zedner's Continued Absence from the United States

In the present case, in opposition to the government's
motion to dismiss, Zedner contends that none of the above
justifications apply to him, in part because, he argues, the

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government has not shown that his absence is willful and hence has
not proven him to be a "fugitive." Alternatively, Zedner contends
that an evidentiary hearing is required before he can be so
classified. We disagree.

Although Zedner disputes the government's statement that
the Violation of Supervised Release report was filed in the
district court, saying that the district court docket sheets do
not show an entry for that Report (see Zas Decl. 1 7), the Zas
Declaration concedes that the Report was served on Zedner's
counsel in support of the present motion to dismiss (see id. ) ; and
Zedner has not contradicted any of the Report's allegations as to
the pertinent events. Despite the Zas Declaration's statement
that Zedner disputes "many" of the assertions made in the
government's motion to dismiss (id. [ 14), the only issues it
identifies are "whether Mr. Zedner is free to leave Israel and
return to the United States and whether his failure to return has
been willful or simply the product of his well-documented mental
illness or his indigency" (id.). But Zedner has adduced no
evidence that would warrant a hearing as to whether his failure to
return was the result of mental illness; he claims that he was in
fact unable to return to the United States because "he did not
have any money to purchase [a return] ticket" (Zas Decl. | 10) and
because he cannot obtain permission from the Israeli government to
leave Israel. Those assertions, which we will assume for purposes
of this motion are true, do not advance his contention that his
absence is not willful and that he is not a fugitive.

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A condition of Zedner's supervised release was that he not
leave the Eastern District of New York without the permission of
the district court. There is no dispute that in August 2007,
during the pendency of this appeal, Zedner was given permission to
leave the United States for no more than two weeks; no dispute
that before he left he "was specifically warned that if he did not
return within two weeks of leaving the United States, he would be
considered

to have absconded from supervision" (Report at
4) ; no dispute that he left the United States on September 9,
2007; and no dispute that as of the date of this opinion -- some
thirteen so far months after his departure -- he has not returned.

As to the willfulness of his absence, the fact is that
Zedner was expressly required to return to the United States
within two weeks of his departure but purchased only a one-way
ticket to Israel. If, as he claims, he lacked the money to
purchase a round-trip or return ticket, his remaining in Israel
beyond the court-ordered deadline, having traveled there without
the means to return as required, constitutes a willful absence
from the United States.

Further, Zedner asserts that he is now not allowed to
leave Israel because he was arrested in January 2008 on a charge
of criminal assault that is still pending. But Zedner became a
fugitive when he failed to return to the United States as required
on September 23, 2007. He did not shed his fugitive status by
being accused of new criminal conduct that led to foreign

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governmental restrictions more than three months after the
deadline for his return.

We reject as well Zedner's contentions that the normal
justifications for applying the fugitive disentitlement doctrine
do not apply to him. As discussed above, any of them -- assuring
enforceability of any decision we may reach, imposing a penalty
for flouting the judicial process, discouraging flights from
justice, promoting the efficient operation of the courts, and
avoiding prejudice to the government -- independently may warrant
dismissal of the appeal. Leaving aside the possibility of
prejudice to the government in the form of needing to locate
witnesses and resurrect their recollections in the event of a new
trial, a prejudice that would be partly attributable to the
original violations of the Speedy Trial Act, we think it plain
that each of the other justifications warrants dismissal of
Zedner's appeal.

" [A] fugitive who absconds in the course of an ongoing
criminal appeal flouts the authority of the court from which he
seeks relief. By imposing the sanction of disentitlement, that
court can both protect the dignity of its proceedings and deter
similarly situated parties from absconding." Awadalla, 357 F.3d
at 246. The appropriateness of imposing a sanction against Zedner
for disrespecting the dignity of this Court and for the purpose of
deterring similar flights by others is obvious. Indeed, Zedner's
only argument that these justifications are not applicable to him

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is his contention that he is not a fugitive (see Zas Decl. | 17),
a contention we have rejected above.

Further, dismissal of this appeal is warranted because
Zedner's absence from the United States both casts serious doubt
on whether the decision of this Court on his appeal will be
enforceable and impairs efficient operation of the court. In his
99-page brief on appeal, Zedner makes four arguments: that the
district court's Speedy Trial Act dismissal of his 1996 indictment
should have been with prejudice; that because the mandate for our
decision in Zedner V did not issue until February 1, 2007,
jurisdiction of his case resided in this Court rather than in the
district court at the time of his 2006 trial, and hence his
conviction at that trial was a nullity; that the government should
have been estopped from arguing at his 2006 trial that he was not
delusional; and that the trial court erred in excluding from
evidence a prior government letter on that subject. If his
arguments were rejected, we would have no assurance that Zedner
would return to the United States to resume compliance with the
terms of his supervised release. Moreover, of his four arguments,
the only one whose acceptance could spare Zedner further criminal
proceedings is the contention that the Speedy Trial Act dismissal

should have been with, rather than without, prejudice -- a difficult
contention on which to prevail since the choice between those two
sanctions is a matter that is committed to the sound discretion of
the district court, see generally United States v. Taylor, 487
U.S. 326, 335 (1988); United States v. Wilson, 11 F.3d 346, 352

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(2d Cir. 1993), cert. denied, 511 U.S. 1025 (1994). If Zedner
were to prevail on either of his challenges to the district
court's trial rulings or on his contention that his trial was a
nullity because it was conducted while jurisdiction of his case
was in this Court rather than the district court as a result of
the tardy issuance of the Zedner V mandate, the remedy would be a
new trial. And if we "order a new trial, [Zedner] will appear or
not, as he may consider most for his interest, " and we will have
expended judicial resources on "what may prove to be only a moot
case, " Smith, 94 U.S. at 97.

Finally, we note that we have discretion to dismiss the
appeal either with prejudice or without prejudice to reinstatement
if the defendant returns to custody within a certain time. See,
e.q., Awadalla, 357 F.3d at 247-50 (discussing cases and the lack
of any bright-line rule as to when an appeal should be dismissed
without prejudice) . In Awadalla, we concluded that the appeal
should be dismissed with prejudice, noting that

Molinaro -- the most recent decision of the Supreme
Court that is directly on point -- suggests that a
defendant who jumps bail is no longer entitled to
draw on the resources of an appellate court, and,
therefore, should not be accorded additional time to
return to custody before his appeal is dismissed.

Awadalla, 357 F.3d at 249. We observed that "where the court
hearing an appeal is the same court from which the fugitive seeks
relief from his conviction," the goals of punishment and
deterrence generally warrant a dismissal with prejudice, because
"any other course of action would dilute the sanction imposed for
flouting the judicial process and reduce the deterrent effect of

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₫

1
that sanction. " Id. at 249, 250. We agree and conclude that the
present appeal should be dismissed with prejudice.

### C. A Few Words About the Dissent

The dissent begins with the assertion that the question of
whether the district court had jurisdiction to conduct Zedner's
2006 trial is "a decisive issue in this case." Dissenting Opinion
at 1 (emphasis added). This issue, however, is plainly not
dispositive of the case. This is not an issue of subject matter
jurisdiction; it is purely a question as to the timing of the
respective jurisdictions of this Court and the district court with
respect to a prosecution that is plainly within federal subject
matter jurisdiction. If we were to accept the contention that
Zedner's 2006 trial and the consequent judgment of conviction were
void because of their prematurity, the proper remedy would be to
remand to the district court for a new trial, not to dismiss the
case.

The dissent posits that because we have a special
obligation to satisfy ourselves that we have jurisdiction over an
appeal and that the district court had jurisdiction over the
matter in question, "we are not permitted to reach the merits of
the government's motion to dismiss under the fugitive
·
disentitlement doctrine." Dissenting Opinion at 5 (emphasis
added) . No authority is cited that supports that proposition.
The dissent's only cite is to Steel Co. v. Citizens for a Better

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Environment, 523 U.S. 83, 95 (1998), a case in which no party was
a fugitive.

Nor has this Court intimated that the presence of a
jurisdictional issue forecloses consideration of the fugitive
disentitlement doctrine. In SEC v. Berger, 322 F.3d 187 (2d Cir.
2003), in which we decided a jurisdictional issue instead of
dismissing on the fugitive disentitlement ground, we did so in the
exercise of our discretion. In that case, the issue was subject
matter jurisdiction (unlike the present case in which the question
is the timing of jurisdiction) and was the only issue raised. And
in opposition to the government's invocation of the fugitive
disentitlement doctrine, the fugitive appellant made factual
assertions -- with regard to the enforceability of the judgment
against him -- as to which the record was undeveloped and would have
required either a "remand for factual findings or" the submission
of "affidavits directly to this Court." Id. at 192. Thus, "in
the interests of judicial economy, we exercise [d] our discretion
to reach the jurisdictional question
It
Id. (emphasis
added) .

We also note the dissent's statement that "Zedner's
presence in Israel is completely irrelevant to our ability to
decide the merits of his appeal." Dissenting Opinion at 7.
Rarely, if ever, is the presence of an appellant essential to our
"ability" to decide the merits of an appeal. The question here is
whether Zedner is entitled to have his appeal decided when his
absence from the United States plainly triggers the concerns

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underlying the fugitive disentitlement doctrine, given, inter
alia, that his continued absence from the United States would
render the ultimate judgment resulting from a decision on the
merits of his jurisdictional challenge unenforceable as a
practical matter -- regardless of whether he wins or loses.

The dissent concludes with the statement that our
dissenting colleague can think of no worse ending to this matter
than the dismissal of the appeal on the ground that Zedner's
fugitive status disentitles him to pursue his appeal. We think it
would be far worse to entertain the appeal despite his fugitive
status, accept his contention that the 2006 conviction is a
nullity, remand for a new trial, and have Zedner thumb his nose at
the decision.

# CONCLUSION

We have considered all of Zedner's arguments in opposition
to the government's motion to dismiss the appeal on the ground of
Zedner's fugitive status and have found them to be without merit.
The motion is granted. The appeal is dismissed with prejudice.

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United States v. Zedner 1 2 3 4 5 6

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