816 F. 2d 479 - United States v. Freelove

Lance A. Caldwell, Portland, Or., for plaintiff-appellee.

Priscilla L. Seaborg, Portland, Or., for defendant-appellant.

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

Before SNEED and HALL, Circuit Judges, and LEGGE*, District judge.

In the case before us the prosecution's chief witness recanted shortly after trial. Prior to oral argument, counsel informed us that defendant had escaped from custody. To this date he remains a fugitive.

Defendant's escape does not deprive this court of power to hear this appeal, but it does disentitle the defendant from demanding appeal as of right. Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 499, 24 L.Ed.2d 586 (1970) (per curiam). One may not invoke the power of judicial review only thereafter to obey or disobey the lower court's mandate as he sees fit.

We therefore dismiss defendant's appeal with prejudice subject to the following qualification: if defendant surrenders to state authorities within 42 days of the date hereof, his appeal shall be reinstated and decided on the merits as submitted. Cf. United States v. Macias, 519 F.2d 697, 698 (9th Cir.1975).