United States v. Hanzlicek

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 16 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.
No. 97-5172
KAREN HANZLICEK, also known as
Karen Pearl Hanzlicek,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 96-CR-115-BU)

William D. Lunn, Tulsa, Oklahoma, for Defendant-Appellant Karen Hanzlicek.

Neal B. Kirkpatrick, Assistant United States Attorney, (Stephen C. Lewis, United
States Attorney, with him on the brief), Tulsa, Oklahoma, for Plaintiff-Appellee.

Before ANDERSON, KELLY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

The United States moves the court to dismiss this appeal on the basis of the

fugitive disentitlement doctrine. See Molinaro v. United States, 396 U.S. 365,
366 (1970) (“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 a case 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 claim.”). Because

Hanzlicek became a fugitive during the pendency of the appeal and remains a

fugitive to this day, this court grants the government’s motion and dismisses

Hanzlicek’s appeal with prejudice.

Hanzlicek was convicted following a jury trial on one count of conspiracy

in violation of 18 U.S.C. § 371, two counts of mail fraud in violation of 18 U.S.C.

§ 1341, and one count of attempting to pass a falsely made obligation of the

United States under 18 U.S.C. § 472. The district court sentenced Hanzlicek to a

term of imprisonment of twenty-three months on each count, to be served

concurrently, and imposed a three-year term of supervised release. Hanzlicek

completed her term of incarceration and was released from the Bureau of Prisons

on July 6, 1998. She failed, however, to report for her term of supervised release

and was declared a fugitive from justice on July 20, 1998.

The application of the fugitive disentitlement doctrine is discretionary. See

Ortega-Rodriguez v. United States, 507 U.S. 234, 250 n.23 (1993). Nevertheless,

-2-
the policy considerations underlying the doctrine strongly weigh in favor of its

application in circumstances when the criminal defendant becomes and remains a

fugitive during the pendency of the direct appeal of her conviction. See id. at 242

(“[O]ur cases consistently and unequivocally approve dismissal as an appropriate

sanction when a prisoner is a fugitive during ‘the ongoing appellate process.’

Moreover, this rule is amply supported by a number of justifications. In addition

to addressing the enforceability concerns identified [in prior Supreme Court

cases], dismissal by an appellate court after a defendant has fled its jurisdiction

serves an important deterrent function and advances an interest in efficient,

dignified appellate practice.”); see also Parretti v. United States, 143 F.3d 508,

510-11 (9 th Cir. 1998) (en banc) (further cataloging policy considerations

underlying doctrine). The strength of these policy considerations counsel against

reaching the merits of a fugitive’s direct appeal in the absence of extraordinary

circumstances. 1

1
In fact, with two very narrow exceptions, this court has not found a single
case declining to apply the disentitlement doctrine in the context of a direct
appeal from conviction. Cf. United States v. Sharpe, 470 U.S. 675, 681 n.2.
(1985) (refusing to apply doctrine where defendant’s conviction was “nullified”
by court of appeals and United States sought review in Supreme Court); United
States v. Snow, 748 F.2d 928, 930 (4 th Cir. 1984) (disentitlement doctrine not per
se applicable where escapee is returned to custody before government seeks
dismissal).

-3-
 This case does not present extraordinary circumstances sufficient to

disregard Hanzlicek’s contempt for this court in particular and the judicial system

in general. See United States v. Timbers Preserve, 999 F.2d 452, 455 (10 th Cir.

1993) (holding that a litigant’s fugitive status is “obvious culpable behavior” that

demonstrates “willful disregard for the court”); Ali v. Sims, 788 F.2d 954, 959 (3 d

Cir. 1986) (“[A] 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.”). 2 Counsel asserts that this case is extraordinary because Hanzlicek’s

flight results from a mental defect instead of a volitional act. This claim,

however, is based solely on the conjecture of counsel and is incapable of being

tested via the adversarial process because of Hanzlicek’s fugitive status.

Nor does the fact that Hanzlicek became a fugitive during the term of her

supervised release weigh in favor of a different outcome. A term of supervised

release is an integral part of a judgment and sentence, a period within which an

offender can be reintegrated into society under the supervision of the criminal

justice system. This court will not diminish the importance of that period by

2
It should be noted that Timbers and Ali are civil cases rather than direct
criminal appeals. Nevertheless, the analyses in those cases is all the more
persuasive in this case because courts have generally been far more hesitant to
apply the fugitive disentitlement doctrine in the civil context. See, e.g., Perko v.
Bowers, 945 F.2d 1038, 1039-40 (8 th Cir. 1991) (discussing generally narrower
applicability of doctrine outside of direct criminal appeal context).

-4-
disregarding the status of those who become fugitives during supervised release.

Furthermore, the only court to address the question, albeit in a brief, unpublished

disposition, found the doctrine applicable nonetheless. See United States v. Lee,

No. 97-50021, 1997 WL 735033, at *1 (9 th Cir. Mar. 12, 1998) (applying

disentitlement doctrine where appellant became fugitive during term of supervised

release).

As a final matter, this court recognizes that there are a few issues of

overlap between Hanzlicek’s appeal and that of her co-defendant husband.

Nevertheless, Hanzlicek’s appeal presents nine issues not presented in her co-

defendant’s appeal, including several questions that are particularly weighty and

complex. We conclude that the relatively narrow overlap between the two appeals

is not sufficient reason to disregard Hanzlicek’s fugitive status, when to do so

would require the expenditure of significant additional resources of this court.

See Ali, 788 F.2d at 959 (“Particularly in this age of overcrowded dockets and

court backlogs, it is unreasonable to expect a court to expend its scarce resources

on one who has blatantly disregarded the court’s procedures.”).

The United States’ motion to dismiss Hanzlicek’s appeal with prejudice

pursuant to the fugitive disentitlement doctrine is hereby GRANTED.

-5-
No. 97-5172, United States v. Karen Hanzlicek.

KELLY, Circuit Judge, dissenting.

The court should proceed to the merits of Mrs. Hanzlicek’s appeal and

decide it along with Mr. Hanzlicek’s (No. 97-5180). Mr. and Mrs. Hanzlicek

were tried jointly, and their appeals involve several similar, if not identical, issues

requiring a review of the entire record. In addition, both appeals are fully

briefed, have been orally argued, and already have consumed considerable judicial

resources–it is decidedly against the interest of judicial economy to dismiss Mrs.

Hanzlicek’s appeal only to have these issues reappear in a 28 U.S.C. § 2255

proceeding. Both appeals may now be decided before the same panel.

Additionally, Mrs. Hanzlicek has already served her prison sentence. While

supervised release is an important part of Mrs. Hanzlicek’s sentence, it does

differentiate this case from the many cases that have applied the fugitive

disentitlement doctrine when the defendant has fled before serving time in prison.

See, e.g., Molinaro v. New Jersey, 396 U.S. 365, 365 (1970); United States v.

O’Neal, 453 F.2d 344, 344-45 (10th Cir. 1972).

Application of the fugitive disentitlement doctrine is discretionary, see

Ortega-Rodriguez v. United States, 507 U.S. 234, 250 n.23 (1993), and it is not

always applied, see United States v. Luppi, No. 98-1475, 1999 WL 535295, (10th

Cir. July 26, 1999) (unpublished) (declining to apply doctrine where defendant

challenged her fugitive status). The court’s discretion ought to be exercised in
favor of hearing this appeal if for no other reason than the very troubling trial

conduct of the United States in securing Mrs. Hanzlicek’s conviction. A review

of this record persuades me that to sit back and say nothing implicitly condones

such conduct. The court having concluded otherwise, I respectfully dissent. If

the court is intent on applying the doctrine, it should be applied conditionally so

that the appeal will be dismissed in thirty days from the date this opinion is filed

if Mrs. Hanzlicek does not surrender. See United States v. Swigart, 490 F.2d 914,

915 (10th Cir. 1973); O’Neal, 453 F.2d at 345.

-2-