Thursday, October 30th, 2008

The Fugitive

United States v. Zedner, No. 07-1049 (2d Cir. October 28, 2008) (Kearse, Pooler, CJJ, Cote, DJ)

While on supervised release, and with his appeal pending, Jacob Zedner received his probation officer’s permission to go to Israel for two weeks to attend his brother’s funeral. While there, he was arrested and was told to remain in the country. Citing this and a lack of funds, Zedner did not return to the United States. The government then moved to dismiss the appeal; a sharply divided panel invoked the fugitive disentitlement doctrine and dismissed the case with prejudice.


Zedner’s was surely the longest-running criminal case in this circuit. The offense involved his trying to negotiate multi-million dollar “bonds” that were riddled with misspellings and that were purportedly issued by the “Ministry of Finance of U.S.A.” The case itself began in 1996, when he was indicted for attempted bank fraud. After prolonged competency proceedings and multiple appeals, a jury convicted him in 2003. More appeals followed, culminating in a Supreme Court victory, which resulted in a 2006 retrial. He was convicted again and, having fully served the sentence imposed in 2003, was sentenced to time served and supervised release.

On this appeal, he raised several substantial issues, the most pertinent being that the district court lacked jurisdiction to retry him, because it did so before the circuit had issued the mandate.

The Majority’s Decision

As noted above, while the appeal was pending, Zedner went to Israel and did not return, citing various factors beyond his control. He insisted that he was willing to come back once he was able. Nevertheless, the majority declared him a fugitive, rejecting the argument that his absence was not willful. To the majority, his traveling to Israel without the means to return rendered the absence willful. In addition, his arrest in Israel occurred after he was supposed to return to the United States, thus he “did not shed his fugitive status by being accused of new criminal conduct that led to foreign governmental restrictions more than three months after the deadline for his return.”

The opinion has an unusually detailed discussion of the disentitlement doctrine itself, culminating in a summary of the justifications for dismissing a fugitive’s criminal appeal: “1) assuring the enforceability of any decision that may be rendered against the fugitive; 2) imposing a penalty for flouting the judicial process; 3) discouraging flights from justice and promoting the efficient operation of the courts; and 4) avoiding prejudice to the other side caused by the defendant’s escape.”

The majority found that “each of” these justifications warranted dismissal of the appeal here. Worse still, it dismissed the case with prejudice, and did so with very little analysis, just a passing mention that “the goals of punishment and deterrence generally warrant a dismissal with prejudice” because anything else would “dilute the sanction.”

The Dissent

Judge Pooler, in dissent, strongly disagreed. She viewed the complex jurisdictional issues here as “dispositive,” and noted that, in her view, Zedner was right: the judgment of conviction against him was “a nullity,” as was the notice of appeal, which was also filed before the mandate issued. Accordingly, both Zedner’s appeal and the government’s motion to dismiss it were moot, because, in Judge Pooler’s view, jurisdiction of the case has been exclusively in the district court since the mandate came down: “we are obligated to correct that error, and accordingly, we are not permitted to reach the merits either of Zedner’s appeal or the government’s motion to dismiss.”

Even if the appeal could be heard, however, Judge Pooler was “deeply troubled” by the majority’s discretionary decision to invoke the fugitive disentitlement doctrine, citing Zedner’s history of mental illness and the unusual circumstances that prevented him from returning to the United States. She further characterized the “profoundly troubl[ing]” decision to dismiss with prejudice as “ungenerous,” noting that “Zedner has had a long and tortured history with our judicial system. I can think of no worse ending to this matter than what the majority has unreasonably decided to do.”

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