Fugitive-Disentitlement Doctrine Dooms Criminal Appeal of Defendant Who Fled the Country, Holds Ninth Circuit

Another case involving one of my favorite federal common law rules: in United States v. Terabelian, No. 21-50291 (9th Cir. June 27, 2024), the Ninth Circuit dismisses the direct appeal of a criminal conviction on the ground that the defendant removed her location-monitoring device and fled to country to Montenegro before sentencing, citing the fugitive-disentitlement doctrine.“In October 2020, Terabelian and her husband, Richard Ayvazyan, were stopped and detained after passing through customs at the Miami International Airport. FBI agents had begun investigating the couple in June 2020 after connecting them to a Los Angeles-based conspiracy involving fraudulent applications for millions of dollars of COVID-19 relief loans.” They and others were eventually indicted in the United States District Court for the
Central District of California for conspiracy to commit bank and wire fraud, among other charges.After a ten-day trial, a jury convicted Terabelian on all of the bank-and-wire-fraud counts for which she was charged. Motions for acquittal and a new trial were denied. Nine days later, “Terabelian and Ayvazyan removed their location-monitoring devices that were a required condition of release by Pretrial Supervision and absconded on August 29, 2021. A bench warrant was issued for their arrest, and the FBI began its search for the fugitives. While defendants were on the run, the district court continued with proceedings and sentenced Terabelian in abstenia to 72 months of imprisonment, plus joint and several liability with “other coconspirators for $17.7 million in restitution to the victims. Their lawyers filed appeals in their absence. The couple was located six months later living “under fake names with falsified travel documents in Montenegro . . . . Terabelian was finally extradited to the United States in mid-November 2022. The district court ordered her detained, and she has remained in federal custody ever since.”The Ninth Circuit dismisses the appeal under its inherent power known as the fugitive-disentitlement doctrine. “An appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of [her] appeal.” Circuit authority provides that “the fugitive-disentitlement doctrine should be applied only in exceptional circumstances where dismissal is warranted . . . . First, is the appeal a direct criminal appeal? . . . . [Second, was] the appellant . . . a fugitive ‘during the pendency of [her] appeal’? . . . . And third, do the traditional justifications of abandonment, deterrence, dignity of the courts, efficiency, and enforceability support dismissal?”“Answering the first two questions in this case is straightforward. Terabelian has filed a direct criminal appeal, and she filed that appeal while a fugitive from justice. The answer to the third question is less obvious. Unlike the typical case where the doctrine has been applied, Terabelian’s counsel filed this appeal on her behalf while she was a fugitive, and she is now back in the custody of the federal courts. Those circumstances muddy the waters. But, on balance, we conclude that the policy rationales underlying the fugitive-disentitlement doctrine weigh in favor of applying the doctrine on these unique facts.”“We start with enforceability. Terabelian is back in custody in the United States. Because Terabelian has been recaptured, we are confident that the court will be able to enforce a judgment against her.”“[E]fficiency of the appellate process [also] cuts in favor of dismissal. Recapturing Terabelian involved (1) the FBI tracing an IP address to Montenegro after a synthetic identity associated with the conspiracy logged into a bank account that the FBI was monitoring, (2) investigation by Montenegrin authorities, (3) the United States government submitting a formal extradition request, and (4) criminal judicial proceedings in Montenegro.”“Deterrence also favors dismissal. Terabelian’s actions are precisely the kind of behavior that courts applying the doctrine have sought to deter . . . . Dismissal of her appeal under the doctrine will therefore deter similar behavior by future defendants.”“Finally, Terabelian’s appeal and her fugitive status were largely overlapping. Whether a defendant’s appeal and fugitive status are entirely or mostly contemporaneous is a factor that courts consider when deciding whether to dismiss an appeal.”“Beyond challenging the traditional justifications undergirding the doctrine, Terabelian argues the purported equities of her case. She posits that she is not solely responsible for any delay to the appellate process in this case. But this argument brazenly overlooks her own actions. Her flight to Montenegro caused a delay of nearly six months as authorities attempted to locate her and process her extradition. And because she entered Montenegro with falsified travel documents, she faced criminal charges there, causing more time to lapse.”“If the result were otherwise, then defendants like Terabelian would find themselves in a win-win situation. A successful escape from justice would mean that they would never suffer the consequences of their criminal conduct. But if they were unfortunate enough to be recaptured and returned to the jurisdiction that convicted them, then they would still win by being able to pursue their appeal as if they had never become a fugitive in the
first place. Such a ‘heads I win, tails you lose’ scenario is totally at odds with the goals of deterrence and respect for the appellate process.”“Having considered these weighty concerns with the unique facts of this case, we conclude that Terabelian ‘should not benefit from [her months] of misbegotten freedom’ . . . . We therefore dismiss this appeal pursuant to the fugitive-disentitlement doctrine.” (The panel then went on to hold, in any event, they would have affirmed the conviction and sentence.)