UNITED STATES of America, Plaintiff-Appellee, v. Khalid A. SHALHOUB, Defendant-Appellant.
No. 16-10533
United States Court of Appeals, Eleventh Circuit.
(April 28, 2017)
1255
***
I respectfully dissent because Mr. Roy‘s Sixth Amendment right was violated when he went without counsel while the jury heard testimony that directly incriminated him. I would reverse his conviction under Cronic and remand for a new trial.
Pierre H. Bergeron, Squire Patton Boggs (US) LLP, Cincinnati, OH, Rebekah J. Poston, Squire Patton Boggs (US) LLP, Miami, FL, Samuel Rosenthal, Squire Patton Boggs (US) LLP, Washington, DC, for Defendant-Appellant.
Before WILLIAM PRYOR and MARTIN, Circuit Judges, and DUFFEY,* District Judge.
WILLIAM PRYOR, Circuit Judge:
This appeal presents the questions whether the denial of a motion for special appearance of counsel to seek the dismissal of an indictment on the ground that the defendant is a fugitive from justice is an immediately appealable collateral order and, if not, whether we should issue a writ of mandamus to compel a ruling on the motion to dismiss the indictment without requiring the defendant to appear. In 1997, a grand jury indicted Khalid Shalhoub on one count of international parental kidnapping,
I. BACKGROUND
Khalid Shalhoub, a citizen and resident of Saudi Arabia, married Miriam Hernandez in Miami in 1985. They divorced four years later. A Florida court granted Shalhoub and Hernandez “full shared parental responsibility” over their only child, Yasmeen, and the court designated Hernandez “as the primary residential parent.”
In 1997, a grand jury in the Southern District of Florida indicted Shalhoub on one count of parental kidnapping in violation of the International Parental Kidnapping Crime Act, which makes it a crime to “remove[] a child from the United States . . . with intent to obstruct the lawful exercise of parental rights.”
In 2015, Shalhoub moved to allow his counsel to appear specially and seek dismissal of the indictment. Shalhoub argued that the indictment lacked factual specificity; that the International Parental Kidnapping Crime Act contravenes the laws of Saudi Arabia where the alleged kidnapping
The district court denied Shalhoub‘s motion without prejudice to his right to appear and seek dismissal of his indictment. The district court explained that the fugitive disentitlement doctrine barred Shalhoub‘s motion because, although Shalhoub was living abroad when indicted, Shalhoub “constructively fle[d] by not deciding to return” to the United States. United States v. Barnette, 129 F.3d 1179, 1184 (11th Cir. 1997). The district court also ruled that Shalhoub‘s right to due process had not been violated and declined to exercise its discretion to circumvent application of the doctrine. Shalhoub appealed and, in the alternative, petitioned for a writ of mandamus.
II. STANDARDS OF REVIEW
We review de novo whether we have jurisdiction to decide an interlocutory appeal. Doe No. 1 v. United States, 749 F.3d 999, 1003 (11th Cir. 2014). “Because a writ of mandamus is an action against the district court judge, the remedy is a drastic one that only exceptional circumstances, amounting to a judicial usurpation of power, will justify.” In re Coffman, 766 F.3d 1246, 1248 (11th Cir. 2014) (citation and internal quotation marks omitted) (alteration adopted). “We will issue a writ only if a petitioner establishes that he has no other adequate means to attain the relief he desires and that his right to the issuance of the writ is clear and indisputable.” Id. (internal quotation marks omitted) (alteration adopted). “We also must be satisfied that the writ is appropriate under the circumstances.” Id. (citation and internal quotation marks omitted).
III. DISCUSSION
The fugitive disentitlement doctrine permits 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). This doctrine accounts for “the difficulty of enforcement against one not willing to subject himself to the court‘s authority, the inequity of allowing [a] ‘fugitive’ to use the resources of the courts only if the outcome is an aid to him,” and “the need to avoid prejudice to the non-fugitive party.” Barnette, 129 F.3d at 1183. It also “discourage[s] flights from justice,” id., and protects the dignity of the courts, Ortega-Rodriguez v. United States, 507 U.S. 234, 241-42, 246, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993).
Shalhoub argues that application of the doctrine to his motion was error. He requests that we reverse and remand for the district court to rule on the merits of his motion. As an alternative to appellate review, Shalhoub petitions for a writ of mandamus to compel the district court to rule on the merits of his motion.
We divide our discussion in two parts. First, we explain that we lack appellate jurisdiction because the order denying Shalhoub‘s motion is not immediately appealable under either the collateral order doctrine or the doctrine of marginal finali-
A. We Lack Appellate Jurisdiction over Shalhoub‘s Appeal.
Courts of appeals have jurisdiction over “final decisions of the district courts of the United States.”
Although neither convicted nor sentenced, Shalhoub argues that we have jurisdiction under the collateral order doctrine. We disagree. We cannot expand the collateral order doctrine to permit our intermediate review of the denial of Shalhoub‘s motion.
The only kinds of pretrial orders in criminal cases that the Supreme Court has stated are important enough to fall within this “narrow” exception to the final judgment rule implicate “an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial.” Id. at 265-67 (internal quotation marks and citation omitted). For example, a defendant may immediately appeal the denial of a motion to dismiss an indictment, which contests the legality of prosecution on the basis of double jeopardy, because the defendant challenges “the very authority of the Government to hale him into court to face trial on the charge against him.” Abney v. United States, 431 U.S. 651, 659, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). Likewise, the denial of a motion to dismiss an indictment on the basis that the Speech or Debate clause of the Constitution,
The Supreme Court has refused to apply the collateral order doctrine to review the denial of motions alleging violations of grand jury secrecy, Midland Asphalt Corp. v. United States, 489 U.S. 794, 801, 109 S.Ct. 1494, 103 L.Ed.2d 879 (1989), and the right to a speedy trial, United States v. MacDonald, 435 U.S. 850, 857, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978), vindictive prosecution, United States v. Hollywood Motor Car Co., 458 U.S. 263, 264, 102 S.Ct. 3081, 73 L.Ed.2d 754 (1982), and insufficient evidence, Abney, 431 U.S. at 663. Although important, these matters involve rights that do not “rest[] upon an explicit statutory or constitutional guaran-
Shalhoub‘s appeal does not fall within the limited scope of the collateral order doctrine. The denial of Shalhoub‘s motion for counsel to appear specially implicates neither a “right not to be tried,” Flanagan, 465 U.S. at 266-67, nor a right like that against excessive bail. Although Shalhoub asserts that the denial of his motion implicates a panoply of rights—due process, the presumption against extraterritorial application of American law, proper venue, and factual sufficiency in an indictment—none of them “rest[] upon an explicit statutory or constitutional guarantee that trial will not occur.” Midland Asphalt, 489 U.S. at 801. And the weight of these rights cannot overcome the policy against the exercise of jurisdiction over intermediate orders. Cf. Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 503, 109 S.Ct. 1976, 104 L.Ed.2d 548 (1989) (Scalia, J., concurring) (explaining that “jurisdictional limitations established by Congress or by international treaty” are “not sufficiently important to overcome the policies militating against interlocutory appeals.“).
The denial of Shalhoub‘s motion is not akin to an “order fixing bail,” which is “entirely independent of the issues to be tried,” Stack, 342 U.S. at 12 (Jackson, J., concurring). The right against excessive bail is a constitutional right,
Shalhoub counters that a district court must satisfy the constitutional guarantee of due process before it labels him a fugitive, but we disagree. The constitutional guarantee of due process did not entitle Shalhoub to any procedural protections before the district court labelled him a fugitive. See Allen v. Georgia, 166 U.S. 138, 141, 17 S.Ct. 525, 41 L.Ed. 949 (1897) (upholding against due process attack a dismissal of the appeal of an escaped prisoner on fugitive disentitlement grounds); Clark v. James, 794 F.2d 595, 598 (11th Cir. 1986) (“[T]here is no constitutional right to notice and hearing prior to dismissal, even when the escapee is captured before dismissal.“); Joensen v. Wainwright, 615 F.2d 1077, 1079 (5th Cir. 1980) (“[A]n escapee . . . who was at large and unavailable for hearing or receipt of notice at the time of dismissal, . . . has no constitutional right to notice and hearing.“). And even if we were to accept Shalhoub‘s argument that labelling him a fugitive implicates a “constitutionally-protected interest in a person‘s good name,” “[w]here a person‘s good name . . . is at stake,” due process requires only notice and an opportunity to be heard, Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), which the district court offered Shalhoub and continues to offer him. A fugitive has no more of a freestanding right not to be labelled a fugitive, than a criminal defendant has a freestanding right not to be labelled a
Shalhoub urges this Court to follow a recent decision of the Seventh Circuit that held that the denial of a motion to dismiss an indictment was an immediately appealable order, United States v. Bokhari, 757 F.3d 664 (7th Cir. 2014), but that decision is distinguishable. The Seventh Circuit reasoned that the motion implicated a right not to be tried because a foreign court had refused to extradite the defendant. Id. at 669-70. Bokhari, a dual citizen of Pakistan and the United States, was indicted for fraud. Id. at 666. Because Bokhari lived in Pakistan at the time of the indictment, the United States sought extradition, but a Pakistani court denied the request. Id. Bokhari then filed a motion to dismiss the indictment, which the district court denied. Id. at 667. The Seventh Circuit held that the order was immediately appealable because the district court conclusively determined whether to defer to the Pakistani court, Bokhari suffered prejudice as a result of the indictment, and Bokhari asserted a right not to be tried on the ground that international comity required deference to the decision of the Pakistani court. Id. at 669-70. The Seventh Circuit emphasized that “[t]his is a rare case.” Id. at 670. “[I]f Bokhari ever does set foot in this country, either through extradition or free will, his comity argument would essentially vanish.” Id. Unlike Bokhari, Shalhoub asserts no alleged right not to be tried. He instead argues that being labelled a fugitive implicates other rights—for example, due process, the presumption against the extraterritorial application of American law, and the right to a speedy trial—the denial of which is insufficient to support our intermediate review. Will v. Hallock, 546 U.S. 345, 352, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006) (“The importance of the right asserted [is] a significant part of [the] collateral order doctrine.” (citation and internal quotation marks omitted)). And we need not decide whether we agree with the Seventh Circuit that the decision of a foreign court not to extradite a defendant implicates a right not to be tried.
Shalhoub argues that we can exercise jurisdiction over his appeal under an alternative doctrine, marginal finality, but we disagree. 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, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964), but the Supreme Court has since limited that doctrine to “the unique facts of [Gillespie],” Coopers & Lybrand v. Livesay, 437 U.S. 463, 477 n.30, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978), which are distinguishable from this appeal, see Gillespie, 379 U.S. at 149-51 (addressing whether the Jones Act provided the exclusive remedy for the alleged wrongful death of a deceased seaman). And we have explained that it is inconsistent for a litigant to assert that we have 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 Atl. Fed. Sav. & Loan Ass‘n of Ft. Lauderdale v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 377 (11th Cir. 1989) (citation omitted). We decline to exercise appellate jurisdiction on the basis of marginal finality.
B. We Deny the Petition for a Writ of Mandamus.
The All Writs Act permits us to issue a writ of mandamus to compel a
A petition must satisfy three conditions before we may grant a writ of mandamus:
First, the party seeking issuance of the writ must have no other adequate means to attain the relief he desires—a condition designed to ensure that the writ will not be used as a substitute for the regular appeals process. Second, the petitioner must satisfy the burden of showing that his right to issuance of the writ is clear and indisputable. Third, even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.
Id. at 380-81 (citations and internal quotation marks omitted) (alterations adopted). Shalhoub argues that his petition satisfies all three conditions for a writ of mandamus. We disagree.
Shalhoub fails to establish that he has no adequate means to challenge the indictment. Shalhoub argues that he is under no obligation to travel to the United States and his indictment will pend indefinitely unless we compel the district court to rule on his motion. The indictment has been pending against Shalhoub for nearly twenty years. “At any time during this long interval he had only to show up in . . . district court” to challenge the indictment. See In re Kashamu, 769 F.3d 490, 493 (7th Cir. 2014). That he does not want to submit himself to the jurisdiction of the federal courts does not make the legal remedies available to challenge his indictment inadequate.
Shalhoub also fails to identify any “clear abuse of discretion” by the district court. Cheney, 542 U.S. at 380 (citation omitted). Shalhoub argues that he has a right to the writ because he is not a fugitive and that the district court erred when it applied the doctrine of “constructive flight” to him, but we have held that a “defendant need not leave the jurisdiction” for the doctrine of fugitive disentitlement to apply. Barnette, 129 F.3d at 1184. “[W]hile legally outside the jurisdiction[, the defendant] may constructively flee by deciding not to return.” Id. Shalhoub asserts that Barnette is distinguishable because he was in his home country when the grand jury returned his indictment unlike the defendant in Barnette. But whether Shalhoub was in Saudi Arabia when the grand jury indicted him is beside the point. Like the defendant in Barnette, Shalhoub knew of the indictment and “refused to surrender himself to th[e] jurisdiction of the court,” id., electing instead not to travel outside of Saudi Arabia to avoid apprehension. The district court did not clearly abuse its discretion when it applied the doctrine of constructive flight to Shalhoub.
Nor has Shalhoub established a clear and indisputable right to the writ. Shal-
Shalhoub argues that his right to the writ is clear and indisputable because the International Parental Kidnapping Crime Act cannot “apply . . . extraterritorially to conduct that occurred within Saudi Arabia in compliance with Saudi law,” but we disagree. Although we ordinarily operate under the presumption that a statute does not apply extraterritorially, United States v. Perez-Herrera, 610 F.2d 289, 290 (5th Cir. 1980), it makes no sense to say that the International Parental Kidnapping Crime Act—which makes it a crime to “remove[] a child from the United States . . . or retain[] a child . . . outside the United States,”
Nor does Shalhoub have a clear and indisputable right to mandamus on the ground that venue is improper in the Southern District of Florida. Venue lies “in any district in which [an] offense was begun, continued, or completed.”
Shalhoub exhorts us to follow In re Hijazi, 589 F.3d 401 (7th Cir. 2009), in which the court granted a writ of mandamus to a defendant who lived outside of the United States and sought to dismiss an indictment through a special appearance of his counsel. Shalhoub argues that his petition is identical to the petition in Hijazi. Shalhoub argues that, like the petitioner in Hijazi, he is under “no obligation to travel to the United States,” he has suffered prejudice by not being able to travel, and his claims could not “be remedied by the regular appeals process.” Id. at 407. We reject this argument.
Unlike the petitioner in Hijazi, Shalhoub cites no refusal by the Saudi Government to extradite him, and he has signifi-
We are not “satisfied that the writ is appropriate under the circumstances.” Cheney, 542 U.S. at 381. Shalhoub‘s petition does not raise the kinds of significant questions necessary for issuance of the writ. Id. (explaining that separation of powers is the kind of significant question that the writ could be used to address). If Shalhoub wants to the challenge the indictment, he need only submit himself to the jurisdiction of the district court.
IV. CONCLUSION
We DISMISS Shalhoub‘s appeal for lack of appellate jurisdiction, and we DENY his petition for a writ of mandamus.