United States v. Khalid A. Shalhoub , 855 F.3d 1255 ( 2017 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10533
________________________
D.C. Docket No. 1:98-cr-00460-DMM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KHALID A. SHALHOUB,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 28, 2017)
Before WILLIAM PRYOR and MARTIN, Circuit Judges, and DUFFEY, * District
Judge.
WILLIAM PRYOR, Circuit Judge:
*
Honorable William S. Duffey, Jr., United States District Judge for the Northern District of
Georgia, sitting by designation.
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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, 18 U.S.C. § 1204. Shalhoub lives in Saudi Arabia and has never been
arrested. In 2015, he moved to have his attorneys specially appear to seek dismissal
of the indictment, which the district court denied on the ground that the fugitive
disentitlement doctrine prohibits Shalhoub from calling upon the resources of the
court without submitting to its jurisdiction. Shalhoub appealed and, alternatively,
petitioned for a writ of mandamus. We dismiss his interlocutory appeal for lack of
jurisdiction because the order denying his motion is not appealable under the
collateral order doctrine. We also deny his petition for a writ of mandamus because
Shalhoub has an adequate means to obtain relief—appearance in the district
court—and cannot establish that his right to mandamus is clear and indisputable.
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
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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.” 18
U.S.C. § 1204(a). The indictment alleged that Shalhoub removed Yasmeen from
the United States to Saudi Arabia “with [the] intent to obstruct the lawful exercise
of the parental rights of Miriam Hernandez.” Although a magistrate judge issued a
warrant for Shalhoub’s arrest the day he was indicted, Shalhoub has not been
arrested, and the district court listed him a “fugitive from justice.”
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 occurred; that the Southern
District of Florida is an improper venue; that comity cautions against prosecuting
conduct that occurred in another country; and that the prosecution violates
Shalhoub’s right to a speedy trial. He also argued that the district court should not
invoke the doctrine that “disentitles [a fugitive] to call upon the resources of [a
c]ourt for determination of his claims.” Molinaro v. New Jersey, 396 U.S. 365, 366
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(1970). Shalhoub asserted that he is not a fugitive from justice because he was
living in Saudi Arabia when he was indicted and did not flee the United States. He
also argued that application of the fugitive disentitlement doctrine violates his right
to due process because the district court labelled him a “fugitive” without an
opportunity to be heard.
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)
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(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
nonfugitive 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 (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.
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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 finality. Second, we deny Shalhoub’s petition for a writ of mandamus
because he has an adequate means to obtain relief—appearance in the district
court—and his right to the writ is not clear and indisputable.
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.” 28 U.S.C. § 1291. The “final judgment rule” prohibits
appellate review of a pretrial order in a criminal case “until conviction and
imposition of sentence.” Flanagan v. United States, 465 U.S. 259, 263 (1984). We
apply the final judgment rule with “utmost strictness in criminal cases,” id. at 265,
unless the challenged order falls within the collateral order doctrine, which permits
appellate review of an interlocutory order that (1) “conclusively determine[s] the
disputed question,” (2) “resolve[s] an important issue completely separate from the
merits of the action,” and (3) is “effectively unreviewable on appeal from a final
judgment.” Id. (internal quotation marks and citation omitted).
Although neither convicted nor sentenced, Shalhoub argues that we have
jurisdiction under the collateral order doctrine. We disagree. We cannot expand the
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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 (1977). Likewise,
the denial of a motion to dismiss an indictment on the basis that the Speech or
Debate clause of the Constitution, U.S. Const. Art. I, § 6, cl. 1, bars the prosecution
is immediately appealable because the motion asserts a right not to be “questioned
for acts done in either House [of Congress].” Helstoski v. Meanor, 442 U.S. 500,
506 (1979) (citation omitted). Both double jeopardy and the Speech or Debate
clause implicate “a right not to be tried.” Flanagan, 465 U.S. at 267. The only
other order that the Supreme Court has said is immediately appealable under the
collateral order doctrine is an order denying a motion to reduce excessive bail,
Stack v. Boyle, 342 U.S. 1, 6 (1951), because “[t]he issue is finally resolved and is
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independent of the issues to be tried, and the order becomes moot if review awaits
conviction and sentence.” Flanagan, 465 U.S. at 266.
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 (1989), and the right to a speedy
trial, United States v. MacDonald, 435 U.S. 850, 857 (1978), vindictive
prosecution, United States v. Hollywood Motor Car Co., 458 U.S. 263, 264 (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
guarantee that trial will not occur,” Midland Asphalt, 489 U.S. at 801, and they are
in “no danger of becoming moot upon conviction and sentence.” Flanagan, 465
U.S. at 266. In other words, absent the assertion of a right not to be tried or the
assertion of a right akin to the right against excessive bail, a defendant must accept
the burdens of trial and sentencing before he obtains appellate review of an adverse
ruling. See Van Cauwenberghe v. Biard, 486 U.S. 517, 524 (1988) (“[L]itigants
must abide by the district court’s judgments, and suffer the concomitant burden of
a trial, until the end of proceedings before gaining appellate review.”).
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
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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 (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, U.S.
Const. Amend. VIII, that protects a defendant against bail set higher than
reasonably necessary to ensure the defendant’s presence at trial, Stack, 342 U.S. at
5 (majority opinion). By contrast, so long as he refuses to appear in court,
Shalhoub has no right to avoid being labelled a fugitive.
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
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protections before the district court labelled him a fugitive. See Allen v. Georgia,
166 U.S. 138, 141 (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 (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 defendant. Although the determination that
Shalhoub is a fugitive is likely unreviewable after final judgment, Shalhoub enjoys
a right to appear in court, to defend himself against the indictment, and to clear his
name if he prevails.
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
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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 (2006) (“The importance of the right asserted [is] a significant
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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
(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 (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.
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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
district court to perform a particular duty within its jurisdiction. 28 U.S.C.
§ 1651(a); see also Fed. R. App. Proc. 21; Cheney v. U.S. Dist. Court for D.C., 542
U.S. 367, 380 (2004). The writ is a “‘drastic and extraordinary’ remedy,” Cheney,
542 U.S. at 380 (citations omitted), that is available only “to confine an inferior
court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise
its authority when it is its duty to do so,” Allied Chem. Corp. v. Daiflon, Inc., 449
U.S. 33, 35 (1980) (quoting Will v. United States, 389 U.S. 90, 95 (1967)). “[O]nly
exceptional circumstances amounting to a judicial usurpation of power or a clear
abuse of discretion will justify the invocation of this extraordinary remedy.”
Cheney, 542 U.S. at 380 (internal quotation marks and citations omitted).
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.
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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
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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.
Shalhoub argues that “labeling [him] a ‘fugitive’ without a hearing or evidentiary
showing violates due process, because the ‘fugitive’ label constitutes a
stigmatizing statement.” But, as explained earlier, the constitutional guarantee of
due process did not entitle Shalhoub to any procedural protections before the
district court labelled him a fugitive. See Allen, 166 U.S. at 141; Clark, 794 F.2d at
598; Joensen, 615 F.2d at 1079. A fugitive is someone who has been offered
process and refuses it. Fugitive, Black’s Law Dictionary (10th ed. 2014) (“A
criminal suspect or a witness in a criminal case who flees, evades, or escapes
arrest, prosecution, imprisonment, service of process, or the giving of testimony,
esp. by fleeing the jurisdiction or by hiding.”). The guarantee of due process is not
violated whenever a defendant dislikes the process offered.
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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,” 18 U.S.C. § 1204(a)—does not apply to conduct that occurs in
another country. United States v. MacAllister, 160 F.3d 1304, 1307 (11th Cir.
1998) (“[W]e ask whether the language [of the statute] gives any indication of a
congressional purpose to extend its coverage beyond places over which the United
States has sovereignty or has some measure of legislative control.” (emphasis
added) (citation and internal quotation marks omitted)). The plain text of the Act
extends the force of federal law to conduct that occurs “without or beyond the
limits of” the United States—that is, extraterritorially. Outside, Webster’s New
International Dictionary 1735 (2d ed. 1961).
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.” 18 U.S.C.
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§ 3237(a). The indictment contains enough information to suggest that the crime
commenced in the Southern District of Florida where Shalhoub’s ex-wife lived
before their daughter was removed from the United States. And Shalhoub once
resided in the Southern District of Florida. Contra United States v. Clenney, 434
F.3d 78 (5th Cir. 2005) (holding that venue did not lie in the Northern District of
Texas because the defendant had “never set foot in the Northern District”). In any
event, a motion to dismiss an indictment for improper venue is not the kind of
“compelling” question that justifies issuance of the writ. See United States v.
Martin, 620 F.2d 237, 239 (10th Cir. 1980).
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 significant contacts with the United
States. Id. at 407–14. Notwithstanding what the Seventh Circuit has stated on this
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issue, see id. at 407 (explaining that although Hijazi could “show[] up in court” to
challenge the indictment, “Hijazi ha[d] [a] right to stay [in Kuwait], and in that
way, to refuse to cooperate with the U.S. proceeding”), we submit that Shalhoub
has an adequate remedy: appearance in the district court.
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.
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