http://www.incadat.com/ ref.: HC/E/USf 150 [14/07/1995; United States Court of Appeals for the Sixth Circuit; Appellate Court] In re Prevot, 59 F.3d 556 (6th Cir. 1995)
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
July 14, 1995
Before: Jones, Siler and Godbold,* C.JJ.
In re B.P. and A.P., the Minor Children.
J. Prevot (Petitioner-Appellee) v. D. Prevot (Respondent-Appellant)
GOLDBOLD, C.J.: This appeal, in No. 94-5854, is from the judgment of the district court ordering the children of J.P. and D.P., who are located with the mother in Tennessee, returned to the custody of the father in France. [FN1] It is a case of first impression. The father brought suit under the International Child Abduction Remedies Act (ICARA), 42 U.S.C. Secs. 11601-610, which is a codification of the Hague Convention on the Civil Aspects of International Child Abduction. The mother contended that, pursuant to the fugitive disentitlement doctrine, the father was disentitled to access to the district court because he is a fugitive from a criminal conviction in the United States. The district court held his fugitive status was irrelevant. We hold that because of the father's status and actions as a fugitive felon the court should have dismissed the case, and we reverse and remand with directions to dismiss. In case No. 94-6440 the district court assessed against the mother attorney's fees and the expenses of transporting the children to France. The final order in that case is reversed.
In 1980, 29 countries met and adopted the Convention, designed to respond to a problem of international abduction of children by their parents. Both the United States and France are signatories to the Convention. Article 1 of the Hague Convention establishes two goals: to ensure the prompt return of wrongfully removed or retained children to the Contracting State of their habitual residence, and to ensure that Contracting States mutually respect the decisions regarding custody of and access to the children. The United States became a party to the Convention on July 1, 1988, and France is a party as well. See Exec. Order No. 12,648, 53 Fed.Reg. 30,637 (1988). See generally Hague International Child Abduction Convention: Text & Legal Analysis, 5 Fed.Reg. 10,494 (1986); H.R.Rep. No. 525, 100th Cong., 2d Sess., reprinted in 1968 U.S.C.C.A.N. 386. In administering ICARA the courts are to determine whether the chidren have been wrongfully removed from their place of habitual residence and are not to determine custody. Hague Convention, Art. 19; 42 U.S.C. Sec 11601(b)(4).
The father is a fugitive from the United States, the country from which he seeks return of the children to his custody in France. So far as we can determine this is the first time a fleeing felon has sought to invoke ICARA, and certainly the first effort by a fleeing felon to have children removed from the country from which he has fled and sent to him in the country where he has taken refuge. The district court, after holding Mr P.'s fugitive status irrelevant, granted the relief that he sought. This court of appeals granted a stay pending appeal.
I. The Factual Background
In November 1988 J.P. and D.P. married. Ms P. is an American citizen. Mr. P. is a French citizen who had resided in the United States for almost 20 years. Approximately two weeks after their marriage Mr. P. was arrested at their restaurant in Texas on charges of theft of property of thc value of $20,000 or more, a second-degree felony. The offense occurred prior to the marriage, and Ms. P. had not known of it. Shortly thereafter the couple moved to Memphis, Tennessee and started a restaurant there.
In 1989 Ms. P. gave birth to the couple's first child, B. In December of 1989, in the 195th Judicial District Court of Dallas County, Texas, Mr. P. pleaded guilty to the charge of theft and was sentenced to ten years confinement plus a fine. [FN2] He was granted probation for ten years, with a condition that he make monthly restitution of $380, a total of some $45,000, plus a $40 per month probation officer's fee. P. arranged for his probation to be supervised by a Tennessee probation officer. Soon after the Memphis restaurant opened Ms. P. arrived at it one morning to find a notice from the Internal Revenue Service that Mr. P. owed $125,000 in back taxes for a restaurant he previously operated in Texas. She began making payments to IRS from restaurant revenues to avoid the closing of their new enterprise. Ms. P. testified, without dispute, that Mr. P. had put the restaurant in the name of another person to avoid responsibility for its debts. Tr. Il. p. 152-53.
In February 1991 the couple's second child, A., was born. Mr. P. told Ms. P. -and he acknowledges- that he felt "caged in" by his probation requirements and his payments to IRS and wanted to leave Memphis. A plan was formulated for leaving the United States and moving to France. The Texas authorities had confiscated Mr. P.'s passport as part of his probation. App. 220; Tr. I, p. 13. To prevent the probation officer's learning of his right he made two restitution payments to the probation officer in advance, through the May 1991 payment. This avoided triggering notice to the probation officer that he was violating terms of his probation, which required him to remain in the vicinity of Memphis and to notify his probation officer prior to any change in his home or employment address (conditions brought over from Texas with the transfer of probation supervision). The restaurant was closed. The family drove to Canada so that Mr. P. could obtain a passport, which he succeeded in doing through the French Embassy. [FN3] After three to five weeks, as soon as his passport was received, the family departed for Europe and arrived in France in June 1991.
After travelling for several weeks the family settled down in Mougins, France and opened a new restaurant. They lived in a 36 foot trailer throughout their time in France. At the appropriate age B. began attending school while A. spent her days in the trailer or at the restaurant.
The parties have stipulated that in February 1992 a warrant was issued by the Texas court for Mr. P. because of his violation of probation. The outstanding restitution balance was then approximately $38,000. The warrant was, of course, never served.
Beginning in November 1992 the couple began arguing. There is conflicting evidence concerning allegations of the husband's physically abusing the wife, and of excessive drinking by the wife, and of unsatisfactory living conditions in the trailer. The district court did not make findings on these issues, and we need not address them. In late 1992 or early 1993 Ms. P. began a search lasting several months for the passports of her and the children. She learned that Mr. P. had removed them from a safe at the restaurant and turned them over to an attorney and had instructed the attorney to keep them from her unless he (Mr. P.) was first notified. Mr. P.'s intent in maintaining possession and control of the passports was to force Ms. P. and the children to remain in France. During his deposition, in answer to a question whether he knew Ms. P. was leaving France, he responded:
I couldn't have any idea [that she might leave, because I had the passports and all the papers of the children in my possession.
App. 117. And he gave this testimony:
Q. Why were they [the passports] at the lawyer's office?
A. Just in case she [Ms. P.] would try to take them.... [W]e knew a problem may be coming and we just took some safety precautions.
Id. at 136.
Ms. P. testified that on May 19, 1993 Mr. P. moved out of the trailer, taking his belongings with him. Mr. P. denied moving out but admitted that he occasionally spent the night at the restaurant. During this time Ms. P., through the American Consulate, filed for and obtained new passports for herself and the children, without her husband's knowledge. In August 1993 Ms. P. left France with B. and A. without Mr. P.'s knowledge, and returned to Memphis, where they presently are located. In October 1993 Mr. P. filed suit for divorce in France. Personal service of process on Ms. P. was not attained, and the French court, proceeding ex parte, granted custody to Mr. P. pending the outcome of the present litigation. At no time since he left the United States has Mr. P. returned. Mr. P. filed his petition in the United States District Court in December 1993.
II. District Court Proceedings
The district court held two hearings at which the mother and others testified, but the father was unwilling to come to the United States for the hearings and instead gave a deposition by long distance telephone. On cross-exmination this was his explanation for his failure to come:
Q. [Counsel for Ms. P.] Okay. Is there a reason why you decided not to come here personally to handle this case, instead you've chosen to do this long distance from France?
A. Because I am responsible for the restaurant, and I cannot abandon the restaurant at this time.
Q. Is it possible that you are also avoiding coming here because of the warrant for your arrest?
A. I'm not avoiding anything.
Q. Okay, you are not.
MS. FOGELMAN [Counsel for Mr. P.]: J. have you been advised by an attorney possibly not to come to the United States?
THE WITNESS: I have an attorney in Dallas. And he told me that until the new development is resolved, I have no reason to come to the States.
App. 128. Dallas is the location of the court from whose conviction Mr. P. fled. Ms. Fogelman, his counsel in this case, is from Memphis. The restaurant in France had closed, and Mr. P. was using it as a site to give cooking lessons.
ICARA requires the petitioner to establish by a preponderance of the evidence that the child has been wrongfully removed within the meaning of the Convention. 42 U.S.C. Sec 11603(e)(1)(A). Wrongful removal occurs when the child is removed, in violation of the rights of custody, from the state in which the child was "habitually resident," and at the time of removal those rights must haye been actually exercised. Hague Convention, Art. 3. The term "habitual resident" is not defined in ICARA or the language of the Convention. As a consequence the facts and circumstances of each case must be assessed. Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir.1993). "The intent is for the concept [habitual residence] to remain fluid and fact based, without becoming rigid." Levesque v. Levesque, 816 F.Supp. 662, 666 (D.Kan.1993).
It is not disputed that Mr. P. and Ms. P. had joint custody of the children. The district court held that Mr. P. had carried his burdens of establishing by a preponderance of the evidence that the children were "habitual residents" of France at the time of their removal and that he was exercising his custodial rights at the time of removal. [FN4]
Under 42 U.S.C. Sec 11603(e)(2)(A) a respondent who opposes the return must
establish that an exception set forth in Article
Ms. P. presented the testimony of Dr. Allen Battle, recognized as an expert
by all concerned. He had examined the children, ages 4 1/2 and 3 at the time of
the examination. He testified that the older child was terrified of his father
and, in the terminology of ICARA, would be subject to grave risk of
psychological harm by being sent to France, and the younger child would he
subject to grave risk of psychological harm if separated from her brother for an
extended period. The court discounted Dr. Battle's testimony and gave as one of
its reasons that the doctor had neither seen the children interacting with the
father nor had an opportunity to interview the father. Thus Mr. P.'s
unwillingness to come to the United States deprived the court of expert
testimony that it considered necessary.
III. Disentitlement of Mr. P. to Access to the District Court
Ms. P. presented to the court her contention that pursuant to its equitable
powers it should deny Mr. P. access to the court. At the first district court
hearing counsel for Ms. P. told the court that one of her defenses was that a
fugitive seeking relief from the court must be in compliance with the laws of
this country. Tr. ll, p. 47. Her trial brief set out that Mr. P. moved her and
the children to France for the purpose of circumventing the jurisdiction of the
courts, because of his failure to abide by his conditions of probation, and
because of his fear of having to serve ten years in a Texas prison for violating
probation. Her proposed findings submitted to the court reiterated her position.
Her contentions referred to the rubric of "unclean hands," but they sufficiently
brought to the court's attention the issue of whether Mr. P.'s status and
conduct barred him from access to the court. The court considered the matter and
held:
Mrs. P. also argues that the equitable doctrine of unclean hands should
preclude the relief sought by the [sic] Mr. P. Mrs. P. contends that her
husband, who is a fleeing felon from Texas, should not be allowed to use a court
system from which he fled to obtain the return of his children. Mr. P. seeks
relief, however, under a treaty (the Hague Convention) and the International
Child Abduction [Remedies] Act passed by Congress to implement it. The relief
provided by the Act is simply not subject to traditional equitable defenses.
Moreover, one requirement of the defense of unclean hands is that the alleged
wrongful conduct be directly related to the matter in litigation. Mr. P.'s
initial flight from the United States and violation of the terms of his
probation is simply unrelated to his request that the children be returned to
the country of their habitual residence as provided by the Act. In any event,
Mrs. P. aided her husband in his initial night from the United States. She
cannot now attempt to use the activity in which she voluntarily participated to
disqualify her husband.
855 F.Supp. at 922 (emphasis added; citation omitted).
The finding that Mr. P.'s flight is unrelated to this case was fundamental
error. His status, and actions, as fugitive are central to the case. Once their
significance is recognized it is apparent that the district court abused its
discretion in declining to invoke its equitable power to hold Mr. P. disentitled
to assert his claim in a United States district court.
A. Fugitive disentitlement-an equitable power of the court.
The fugitive disentitlement doctrine limits access to courts in the United
States by a fugitive who has fled a criminal conviction in a court in the United
States. The doctrine is long-established in the federal and state courts, trial
and appellate.
The power of an American court to disentitle a fugitive from access to its
power and authority is an equitable one. U.S. v. Sharpe, 470 U.S. 675, 681 n. 2,
105 S.Ct. 1568, 1573 n. 2, 84 L.Ed.2d 605 (1985); United Elec., Radio &
Mach. Workers of Am. v. 168 Pleasant St. Corp., 960 F.2d 1080, 1098 (1st
Cir.1992); U.S. v Van Cauwenberghe, 934 F.2d 1048, 1054-55 (9th Cir.1991); U.S.
v. Persico, 853 F.2d 134, 136 (2d Cir.1988); Brinlee v. U.S., 483 F.2d 925, 926
(8th Cir. 1973). See also Conforte v. Commissioner, 692 F.2d 587, 590 (9th
Cir.1982), stay denied, 459 U.S. 1309, 103 S.Ct. 663, 74 L.Ed.2d 588 (1983).
[FN6]
B. Disentitlement of access to appellate courts.
The doctrine was first applied in the federal courts by the Supreme Court's
denial of its processes for a fugitive's appeal to the Court from his conviction
in Washington Territory. Smith v U.S., 94 U.S. 97, 24 L.Ed. 32 (1876). The Court
drew upon earlier state cases. Smith was followed by Bonahan v Nebraska, 125
U.S. 692, 8 S.Ct. 1390, 31 L.Ed. 854 (1887), a similar case. Soon after Smith
and Bonahan the court considered the constitutionality of disentitlement when
invoked by a state court. The Supreme Court of Georgia had dismissed an appeal
to it by a fugitive from a death penalty conviction. Over due process objections
the Supreme Court affirmed. Allen v Georgia, 166 U.S. 138, 17 S.Ct. 525, 41
L.Ed. 949 (1897). Accord, Brinlee v Crisp, 608 F.2d 839, 857 (lOth Cir.1979),
cert denied, 444 U.S. 1047, 100 S.Ct. 737, 62 L.Ed.2d 733 (1980).
In Eisler v. U.S., 338 U.S. 189, 69 S.Ct. 1453, 93 L.Ed. 1897, cert
dismissed, 338 U.S. 883, 70 S.Ct. 181, 94 L.Ed. 542 (1949), the litigant
appealed from a contempt of Congress conviction. After submission of his case to
the Court on the merits he fled the country, and the Court, applying Smith and
Bonahan, struck his case from the docket.
The most familiar federal case is Molinaro v New Jersey, 396 U.S. 365, 90
S.Ct. 498, 24 L.Ed.2d 586 (1970), in which the Court, citing Smith, Bonahan,
Allen v Georgia, and Eisler, applied disentitlement to the appeal of a fugitive
from a state court conviction.
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 defendant to call upon the
resources of the Court for determination of his claims. In the absence of
specific provision to the contrary in the statute under which Molinaro appeals,
28 U.S.C. Sec 1257(2), we conclude, in light of the Smith and Bonahlan
decisions, that the Court has the authority to dismiss the appeal on this
around.
Id at 366, 90 S.Ct. at 498-99. In 1975 the Court confirmed the history and
vitality of the doctrine.
This Court itself has long followed the practice of declining to review the
convictions of escaped criminal defendants ...[,] a long-standing and
established principle of American law.
Estelle v. Dorrough 420 U.S. 534, 537, 95 S.Ct. 1173, 1175, 43 L.Ed.2d 377
(1975).
Since Molinaro was handed down in 1970, in what we estimate to be more than
100 cases, all or substantially all federal circuit courts have invoked Molinaro
and its predecessors and successors to disentitle appellants, criminal and
civil, from the appellate processes of the court. In some cases the court has
dismissed the appeal unconditionally, in others with conditions upon the
fugitive's returning to custody within some fixed period. Other decisions have
refused to reinstate appeals that have been summarily dismissed. Still other
cases have been concerned with the effect of the fugitive's voluntary return to
custody before fugitivity has been made an issue. [FN7]
Disentitlement of access to appellate court applies to appeals in civil cases
as well as to criminal appeals: Broadway v. City of Montgomery, 530 F.2d 657
(5th Cir.1976) (dismissing the appeal in a Sec 1983 action of a fugitive from a
state conviction); Conforte v Commissioner, 692 F.2d 587, 589 (9th Cir. 1982)
(dismissing the appeal of a civil tax assessment against appellant, a fugitive
from a federal tax conviction, and stating, "[T]he rule [of disentitlement]
should apply with greater force in civil cases where an individual's liberty is
not at stake."), stay denied, 459 U.S. 1309, 103 S.Ct. 663, 74 L.Ed.2d 588
(1983); Stern v. U.S., 249 F.2d 720 (2d Cir. 1957) (dismissing the appeal by
fugitives from fines and costs for contempt in failing to obey a grand jury
subpoena), cert. denied, 357 U.S. 919, 78 S.Ct. 1360, 2 L.Ed.2d 1364 (1958).
Numerous cases have denied appellate access to appellants seeking review of
denials of habeas corpus relief. Johnson v. Laird, 432 F.2d 77 (9th Cir.1970)
(district court dismissed petition for habeas corpus, litigant went AWOL pending
his appeal, appeal dismissed); Arana u U.S. Immigration & Nat. Serv., 673
F.2d 75 (3d Cir.1982) (dismissing the appeal of the denial of a habeas corpus
petition of litigant who had been declared deportable and had hidden his
whereabouts from authorities); Gonzales v. Stover, 575 F.2d 827 (lOth Cir.1978)
(habeas petition by fugitive dismissed, certificate of probable cause denied by
circuit court); U.S. v. Glomb, 877 F.2d 1 (5th Cir.1989) (affirming the
dismissal of a habeas corpus petition on the around that fugitivity was a
voluntary by-pass where, after pleading guilty with the right to appeal a
constitutional issue, defendant escaped and his direct appeal was dismissed);
Lopez v. Malley, 552 F.2d 682 (lOth Cir.1977) (petition for habeas denied,
petitioner fled pending appeal, appeal dismissed).
In Van Blaricom v Forscht, 490 F.2d 461 (5th Cir.1974) (en banc), cert.
denied, 423 U.S. 915, 96 S.Ct. 222, 46 L.Ed.2d 144 (1975), disentitlement was
retroactively applied in a civil case by an en banc decision of the Court of
Appeals, which vacated the decision of a panel that had not known appellant was
a fugitive. In a civil case the Third Circuit applied disentitlement
prospectively in Ali v. Sims, 788 F.2d 954 (3d Cir.1986), to deny a fugitive
future access to the district court for a new trial. Damages were awarded to
plaintiff. Plaintiff and defendants appealed, and plaintiff fled, hijacking a
plane and endangering passengers. The court reversed the judgment for plaintiff
but, applying Fed. R.Civ.P. 37 and 41 and Molinaro, held plaintiff was not
entitled to a new trial.
[T]he principles of Molinaro intersect with the principles underlying
Fed.R.Civ.P. 37 & 41, which render a party's misconduct a basis for the
dismissal of his case. See supra pp. 957-958. Indeed, the cases involving
dismissals under the Federal Rules generally entail conduct far less egregious
than a flight from justice. Thus, the jurisprudence upholding such sanctions as
necessary and proper in an era of court backlogs dovetails with the Molinaro
doctrine. Cf: Eash v Riggins Trucking, Inc., 757 F.2d 557 (3d Cir.1985) (in
banc) (it is within the "inherent powers" of the court to take sueh actions as
are necessary for the effcctive adtninistration of the judicial System).
In sum, the concerns that animate Molinaro well as the principles that
undergird Rule 37 and Rule 41 sanctions, dictate that Ali, whose contempt for
justice was manifest in the egregious act of skyjacking a plane and endangering
innocent lives in a flight from justice, not be awarded a new trial.
Id at 959.
C. Disentitlement of access to federal trial courts.
Disentitlement applies to federal trial courts in civil cases as well as to
appellate courts. [FN8]
Civil litigation, in general: Schuster v U.S., 765 F.2d 1047 (llth Cir. 1985)
(affirming the dismissal of a petition by a fugitive for review of a tax
assessment); Doyle v. U.S. Dep't of Justice, 668 F.2d 1365 (D.C.Cir. 1981)
(affirming the dismissal of an FOIA suit by a fugitive seeking records), cert.
denied 455 U.S. 1002, 102 S.Ct. 1636, 71 L.Ed.2d 870 (1982); Dawkins v Mitchell,
437 F.2d 646 (D.C.Cir. 1970) (affirming the dismissal of a civil suit by a
fugitive to enjoin enforcement of a warrant).
Section 1983 cases: Seibert v Johnston, 381 F.Supp. 277 (E.D.Okla. 1974)
(dismissed for fugitivity); Beckett v. Cuyler, 523 F.Supp. 104 (E.D.Pa. 1981)
(Sec 1983 case alleging unconstitutional conditions of confinement, case closed
when petitioner escaped; Rule 60(b) motion to reopen denied based on Molinaro).
[FN9]
Habeas corpus cases: Bailey v U.S. Commanding Officer, 496 F.2d 324 (1st Cir.
1974) (affirming the dismissal of a petition for habeas corpus by person AWOL
from the Army); Clark v Dalsheirn, 663 F.Supp. 1095 (S.D.N.Y. 1987) (fugitive
from state conviction and from arrest warrants on other charge petition for
habeas dismissed); U.S. v. Collins, 651 F.Supp. 1177 (S.D.Fla. 1987) (28 U.S.C.
Sec 2255 petition granted by court without knowledge that petitioner had just
escaped; court sua sponte reinstated conviction and sentence and vacated relief
granted); Potter v. Davis, 519 F.Supp. 621 (E.D.Tenn. 1981) (state criminal
appea] dismissed for fugitivity; federal habeas denied because decision proper
under state law and federal law), affd, 701 F.2d 180 (6th Cir.1982) (table);
Lewis v Delaware State Hosp., 490 F.Supp. 177 (D.Del.1980) petitioner fugitive
from confinement in state mental hospital pursuant to finding of not guilty by
reason of insanity).
Civil forfeiture cases: U.S. v. Timbers Preserve, 999 F.2d 452 (lOth
Cir.1993) (affirming the forfeiture of real estate in a default judgment against
claimant for fugitivity); U.S. v. Eng, 951 F.2d 461 (2d Cir.1991) (affirming the
default judgment against a fugitive in a forfeiture case); U.S. v One Parcel of
Real Estate, 868 F.2d 1214 (11th Cir.1989) (affirming the denial to a fugitive
of access to trial of an in rem forfeiture action); U.S. v $129,374 in U.S.
Currency, 769 F.2d 583 (9th Cir.1985) (affirming the denial of a petition by a
conservator of a fugitive's estate to intervene in a civil forfeiture case),
cert. denied, 474 U.S. 1086, 106 S.Ct. 863, 88 L.Ed.2d 901 (1986); U.S. v
$45,940 in U.S. Currency, 739 F.2d 792 (2d Cir.1984) (affirming judgment on the
pleadings for the government against a fugitive seeking remission of forfeited
funds); U.S. v Real Property Located at Incline Village, 47 F.3d 1511 (9th
Cir.1995) (affirming order striking opposition to forfeiture of drug-related
realty, filed by defendant who had fled to Switzerland from indictment on drug
charges); U.S. v One Parcel of Real Property, 776 F.Supp. 482 (W.D.Mo.1991)
(opposition to forfeiture barred when filed by petitioner avoiding service of an
outstanding warrant), aff'd, 982 F.2d 526 (8th Cir.1992) (table); U.S. v
$182,980 in U.S. Currency, 727 F.Supp. 1387 (D.Colo.1990) (default judgment
against claimant for fugitivity). [FN10]
Two forfeiture cases have emphasized the unwillingness of a fugitive to
return to the United States to process a claim that he is himself asserting. In
U.S v Eng, 951 F.2d 461 (2d Cir.1991), the litigant had fled to Hong Kong from a
U.S. indictment charging RICO and narcotics violations. The district court
denied his claim to property which was the subject of a civil forfeiture
proceeding. In affirming, the Court of Appeals noted that he -like Mr. P.- was
unwilling to return voluntarily to the United States to face criminal charges
and would not agree to return to contest the forfeiture. Id at 464-65. The Ninth
Circuit, in Real Property Located at Incline Village, commented upon the
petitioner's status as fugitive from an indictment:
At [the time of the district court's order] he was apparently free to return
to the United States to contest the forfeiture action, but chose not to do so,
presumably to avoid arrest on the criminal charges. Under these circumstances,
Brian was a fugitive. See $129,374, 769 F.2d at 587-88 ("It is important to
recognize that Lewis has complete control over the protection of his property
interests in this forfeiture proceeding; if he finds his interests are
sufficiently worth defending, he can terminate his fugitive status and present
his own defense.")....
Id at 1516.
D. The power of the district court.
Disentitlement is consistent with the inherent power of a court to manage its
own affairs. See Ali, 788 F.2d at 959; Doyle v U.S. Dep't of Justice, 494
F.Supp. 842, 845 (D.D.C.1980), affd, 668 F.2d 1365 (D.C.Ci] 1981), cert: denied,
455 U.S. 1002, 102 S.Ct. 1636, 71 L.Ed.2d 870 (1982). Inherent powers do not
derive from statute but are "powers vested in the courts upon their creation.
Eash v. Riggins, 757 F.2d 557, 561 (3d Cir. 1985) (en banc). See also U.S. v.
Hudson, 1 U.S. (7 Cranch) 32, 34, 3 L.Ed. 259 (1812 ("Certain implied powers
must necessarily result to our courts of justice from the nature of their
institution."). The inherent power of the federal court have been described as:
"rooted in the notion that a federal court sitting in equity, possesses all
of the common law equity tools of a Chancery Court (subject, of course, to
congressional limitation) to process litigation to a just and equitable
conclusion." ITT Community Development Corp. v. Barton, 569 F.2d 1351, 1359 (5th
Cir.1978); cf. Hall v Cole 412 U.S. 1, 5, 93 S.Ct. 1943, 1946, 36 L.Ed.2d 702
(1973) (courts possess "inherent equitable power"); Johnston v Marsh, 227 F.2d
528, 531 (3d Cir.1955) ("Our Federal judiciary has consistently recognized that
at common law this inherent power existed.").
Eash, 757 F.2d at 563.
[A]t least in the ahsence of contrary legislation, courts under their
inherent powers have developed a wide range of tools to promote efficiency in
their courtrooms and to achieve justice in their results.
Id at 564. Inherent powers include contempt power, sentences for abuse of the
judicial process, id. at 561, dismissal for failure to prosecute, and
disciplinary power over attorneys. The power to dismiss exists in many
situations. The district court has the inherent power to dismiss sua sponte for
want of jurisdiction. The power to dismiss under Fed.R.Civ.P. 41(b) recognizes a
power of ancient origin in law and equity. Link v Wabash R.R. Co., 370 U.S. 626,
82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). Under some circumstances a court may
dismiss under the ancient doctrine of forum non conveniens. 15 Charles A.
Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure
Sec 3828 (2d ed. 1986). A court has the inherent power to manage its docket,
subject of course to statutes requiring special treatment for specified types of
cases.
The district court limited its consideration of equity powers to "unclean
hands," and rejected that rubric as a "traditional equity defense" to which the
Act was not subject. 855 F.Supp. at 922. This case does not involve balancing
individual equities between the parties. Pretermitting whether "unclean hands"
can ever be asserted as a "defense" or exception in an ICARA case by the party
opppsing the claim for return, disentitlement is an issue between the claimant
and the court, arising from conduct by the claimant that triggers the
institutional, and inherent, equitable power of the court itself to respond to
that conduct. We find nothing in the Convention or the Act that purports to
strip an American court of the powers inherent to it as a court. Because of the
unique facts, the core of this case is not custody, or competing interests of
parents, but fundamental concerns of how the United States operates its courts
and how those courts may react to abuses of American criminal process, to
defiance of judicially-imposed obligations owed to victims of crime, and to
flights from financial responsibilities to our government.
For the same reasons it is not relevant to the disentitlement issue that Ms.
P. accompanied her husband to France. Mr. P. went to France with his wife and
children in tow, but he is no less a fugitive, no less disdainful of his
responsibilities to United States courts and obligations.
IV. Nexus or Connection
We turn to the relationship between the conviction from which the litigant
has fled and the claim with respect to which disentitlement is considered. It
does not matter that the court of conviction and the court from whose processes
the fugitive is excluded are from different sovereigns. In many of the cases,
including seminal Supreme Court cases that we have discussed, the litigant was a
fugitive from a state conviction and his federal appeal was dismissed. Broadway
specifically held that it was immaterial that the litigant had fled from the
custody of another sovereign. 530 F.2d at 659. Moreover, it is inherent that the
interests of two sovereigns are implicated in each of the many cases of
disentitlement to access to federal courts for habeas review of state
convictions. [FN11]
The Supreme Court has expressed doubt about a rule that would require
automatic dismissal of an appeal for conduct by a defendant having no connection
with the appellate proceedings. Ortega-Rodriquez v U.S., 507 U.S. ---, ---, 113
S.Ct. 1199, 1207, 122 L.Ed.2d 581 (1993). Other cases have commented on the
existence of a nexus. Conforte, while pretermitting whether a nexus was
mandated, found a nexus was present: i.e., the litigant's conviction for evasion
of employment taxes and his tax court appeal "are each related components of a
general tax evasion scheme." 692 F.2d at 592. In this case our concern is not
with a connection between this appellate court and the courts of Texas but with
the connection between the Texas conviction and the claim before the district
court, for we are reviewing the district count's denial of disentitlement.
Assuming a nexus was required between the district court proceeding and the
Texas conviction, it was present. Mr. P.'s flight and his subsequent invocation
of ICARA were, paraphrasing Conforte, "related components of a general scheme."
He fled to escape his criminal conviction and other responsibilities to court,
probation officers, victim and government, and to assemble and hold his family
in a refuge beyond the reach of American courts and American responsibilities.
In Mr. P.'s hands ICARA is a tool used to permit him to escape American justice
and responsibilities while holding his children with him. Flight was but one
step, and an ICARA claim the latest link, in a chain of proximately related
events that began with the Texas conviction and ended in the district court
proceedings in this case. It is obvious that if Mr. P. returned to the United
States and was imprisoned he could not successfully maintain an ICARA claim.
Either the habitual residence of the children would haye changed, or they would
no longer be in his custody, or the exceptions relating to risk of harm to the
children would apply.
Our decision is consistent with concerns addressed by the Supreme Court in
Ortega-Rodriguez. The Court recognized that "our cases consistently and
unequivocally approve dismissal [by an appellate court] as an appropriate
sanction when a prisoner is a fugitive during 'the ongoing appellate process."'
507 U.S. at , 113 S.Ct. at 1204. Its central concern was whether the same
rationale mandated dismissal of the appeal of a defendant who fled the
jurisdiction of a district court but was recaptured before he appealed. Mr. P.
is within the pattern of cases "consistently and unequivocally approv[ing]
dismissal as an appropriate sanction." He was a fugitive during the ongoing
process; the only difference is that the relevant process is that of the trial
[federal district] court rather than the appellate court. He triggered the
relevant process by filing this case while he was an unrecaptured fugitive, he
remains in that status, and there is no indication that it will ever change. The
Court in Ortega-Rodriguez noted that the defendant had been recaptured and was
within the power of the district court, which was capable of defending its own
jurisdiction by imposing appropriate punishment. Id at ---, 113 S.Ct. at 1207.
In the present case Mr. P. is at large and the Texas court has no way (short of
the dubious, expensive, and tortious possibilities of extradition) to protect
its interest, nor does the unreimbursed victim of Mr. P.'s theft, or the IRS, or
the Tennessee probation system have means to safeguard its respective interests.
In a practical sense, the only agency with power to sanction Mr. P. is the
district court whose power and authority he himself invoked.
Mr. P. has flouted the interests of the criminal courts in enforcing his
criminal conviction. He has walked away from his agreement - made to the court
to obtain probation - to make restitution to his victim. He has spurned his
obligation to the United States government for taxes. He has misused the
Tennessee probation processes. He has inhibited the processes of the United
States District Court in this case by making unavailable to it the depth of
expert testimony that the court indicated that it needed. He has abused the
laudable purposes of ICARA by employing it to further his scheme. His
fugitivity, and his actions, constitute abuses to which a court should not
accede.
The decision of the district court in No. 94-5854 is REVERSED and the case is
REMANDED with instructions to dismiss the case.
In case No. 94-6440, pursuant to 42 U.S.C. Sec 11,607(b), the district court
assessed against Ms. P. attorney's fees and the expenses of transporting the
children to France. The final order in that case is REVERSED.
------------------------------
* The Honorable John C. Godbold, Circuit Judge of the United States Court of
Appeals for the Eleventh Circuit, sitting by designation.
--------------------
FOOTNOTES
1. Prevot v. Prevot, 855 F.Supp. 915 (W.D.Tenn. 1994)
2. The district court stated that Mr. P. pleaded guilty in December of 1988
to the Texas charge. 855 F.Supp. at 917. However, a copy of the Texas judgment
shows that the plea and subsequent probation were entered December 4, 1989.
3. The record refers at times to obtaining passports-plural-in Canada, at
other times passport-singular-for Mr. P. The difference does not affect our
decision.
4. In Fredrich this court remanded with instructions that the district court
make a specific inquiry into whether under the law of Germany, the place of the
child's habitual residence, the husband was exercising his custodial rights at
the time of the child's removal. 983 F.2d at 1402. As we discuss below, because
of our disposition of the case we do not need to address the issue of whether
the court erred in finding that the husband was exercising his custodial rights.
5. Mr. P. did not specifically address, nor did the district court, the
second prong of Article 13b that return would "otherwise place the children in
an intolerable situation." Article 20 provides: "The return of the child under
the provisions of Article 12 may be refused if this would not be permitted by
the fundamental principles of the requested State relating to the protection of
human rights and fundamental freedoms." The district court did not address
Article 20, and we need not.
6. 6. The doctrine is not jurisdictional in nature. Molinaro v. New Jersey,
396 U.S. 365, 366, 90 S.Ct. 498, 498, 24 L.Ed.2d 586 (1970) ("[S]uch [fugitive
status] does not strip the case of its character as an adjudicable case or
controversy...."); United Elec., Radio & Mach. Workers, supra
("Disentitlement is not a matter of jurisdictional dimension; rather, it is a
concept premised on principles of equity."); Van Cauwenberghe, supra; U.S. v.
Freelove, 816 F.2d 479, 480 (9th Cir.1987). {PARA} Nor does the doctrine
implicate constitutional pnvileges; rather it rests upon the supervisory power
of the federal court to administer the federal court system. Goeke v. Branch,---
U.S. ---, ---, 115 S.Ct. 1275, 1277, 131 L.Ed.2d 152 (1995); Ortega-Rodriguez,
507 U.S. ---, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993).
7. State appellate cases invoking disentitlement are legion since long
before, and after, Molinaro. Indeed, Smith v. U.S., the first Supreme Court
case, and Allen v. Georgia, drew on state authorities.
8. Disentitlement has little play for the criminal accused at his merits
trial, since fugitivity before or during trial invokes other doctrines. But see
U.S. v. Sacco, 571 F.2d 791 (4th Cir.), cerf. denied, 435 U.S. 999, 98 S.Ct.
1656, 56 L.Ed.2d 90 (1978), in which a question arose during triai of whether
the government had relied upon allegedly improper wiretap evidence. The court
reserved ruling on the taint issue until after trial. After a verdict of guilty
the court began a taint hearing. Before it was completed the defendant fled. The
court dismissed the taint proceeding. The court of appeals affirmed on Molinaro.
9. We have above noted Broadway, which denied appellate court access for a
Para 1983 appeal brought by a state fugitive.
10. The Seventh Circuit reversed a district court's application of
disentitlement to a litigant who contested forfeiture of his funds, on the
ground that it was inappropriate where the government had initiated the action
and fugitivity had not been proved. U.S. v. $40,877.59 in U.S. Currency, 32 F.3d
1151 (7th Cir.1994). The Sixth Circuit allowed a fugitive to appeal the district
court's forfeiture order because it was an in rem proceeding and other creditors
might have rights. U.S. v. $83,320 in U.S. Currency, 682 F.2d 573 (6th Cir.
1982). The Second, Ninth and Eleventh Circuits haye declined to follow the in
rem rationale: $45,940, supra; $29,374, supra, One Parcel, supra. In any event
the issues of governmental initiation of a forfeiture action and the effect of
its being an in rem proceeding are not present in the case before us.
11. While not a prerequisite to our decision, we note that in this case both
sovereigns have well established policies of disentitlement. Texas incorporated
disentitlement into its statutory law, Tex.Code Crim.Proc.Ann. art. 44.09, which
provided that if a defendant convicted of a felony flees pending his appeal the
jurisdiction of the appellate court shall no longer attach. The statute was held
constitutional, even as applied to a fugitive whose appeal was dismisscd after
his recapture. Estelle v. Dorrough, 420 U.S. 534, 95 S.Ct. 1173, 43 L.Ed.2d 377
(1975). The Texas statute replaced a somewhat similar common law rule. Id. at
535 n. 1, 95 S.Ct. at 1174 n. 1. The statute was applied in Thompson v. State,
641 S.W.2d 920 (Tex.Crim.App.1982). It was repealed and replaced in 1986 by Rule
60, Tex. Rules App.Proc., which provides for dismissal of a criminal appeal on
motion of the state if the appellant has escaped pcuding appeal and has not
voluntarily rcturned within 10 days after escaping.
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