Opinion · Court of Appeals for the First Circuit

United States v. Jacob J. Gordon

538 F.2d 914

Type: Opinion
Court: Court of Appeals for the First Circuit
Jurisdiction: Federal
Date: 1976-07-23
Topic: general

How later courts describe this case

dismissing pending appeal of fugitive because itis "unlikely that [the] convicted party will respond to an unfavorable decision"
dismissing pending appeal of fugitive because it is “unlikely that [the] convicted party will respond to an unfavorable decision”

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Cited by: 9 opinions

UNITED STATES v. GORDON,538 F.2d 914(1st Cir. 1976)

UNITED STATES OF AMERICA, APPELLEE, v. JACOB J. GORDON, DEFENDANT-APPELLANT.

No. 76-1105.

United States Court of Appeals, First Circuit.

Submitted June 1, 1976.

Decided July 23, 1976.

Jacob J. Gordon, pro se.

James N. Gabriel, U.S. Atty., and Lawrence P. Cohen, Asst. U.S. Atty., Deputy Chief, Crim. Div., Boston, Mass., on brief, for appellee.

Appeal from the United States District Court for the District of Massachusetts.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

PER CURIAM.

[1] Appellant, after a jury trial, was convicted of attempted forcible rescue of seized property in violation of26 U.S.C. § 7212(b) and of assault of a federal officer in violation of18 U.S.C. § 111. He was sentenced to imprisonment for one year, three months of which was to be served, with two years' probation, and was fined $2000. Notice of appeal was filed in late January, 1976, briefs were filed by both appellant and the government; the case set for argument at our June, 1976, sitting.

[2] When the case was reached for argument, on June 1, appellant, who was proceedingpro sein this court, failed to appear. Government counsel informed us orally, and subsequently by written motion, that on May 13, 1976, appellant failed to appear for trial in another case,United States v. Jacob J. Gordon,Criminal No.Page 91575-276-M, that a warrant of arrest was then issued and has since been outstanding. The government moves for a dismissal of this appeal with prejudice.

[3] We have on similar occasions relied onMolinaro v. NewJersey,396 U.S. 365,90 S.Ct. 498,24 L.Ed.2d 586(1970), and other precedents to invoke the sanction of dismissal when an appellant, by his "conduct in seeking to invoke the processes of the law while flouting them", has disentitled himself to a determination of his appeal.United States ex rel. Bailey v.U.S.C.O. of Provost Marshal, U.S. Army,496 F.2d 324,326(1 Cir. 1974);United States v. Tremont,438 F.2d 1202(1 Cir. 1971). Other circuits have taken the same course, sometimes phrasing the issue in terms of an inherent power to refuse to hear a case when it is unlikely that a convicted party will respond to an unfavorable decision.See, e. g., United States v.Shelton,482 F.2d 848(5th Cir. 1973);Brinlee v. UnitedStates,483 F.2d 925(8th Cir. 1973);United States v.Swigart,490 F.2d 914(10th Cir. 1973).Cf. Ruetz v. Lash,500 F.2d 1225(7th Cir. 1974).

[4] We are mindful that the sanction of dismissal should not lightly be invoked, and we are aware that such cases asShelton,Swigart,andBrinleehave given some additional opportunity for the absent appellant to appear. But, in this case the absence of the appellant is only the most recent in a series of similar defaults. We see no basis for delaying our action.

[5] Nevertheless, since we have had briefs, we have surveyed the fourteen issues listed by appellant. While we do not say that none of the issues constituted a substantial question, we are satisfied that no manifest injustice occurred in appellant's conviction.

[6]Appeal dismissed.