In U.S. v. Shalhoub the court addressed the issue of 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. If not then the issue becomes whether the court should issue a writ of mandamus to compel a ruling on the motion to dismiss the indictment without requiring the defendant to appear.
This is how the facts unfold. Shalhoub, a citizen and resident of Saudi Arabia married a woman in Miami in 1985 and divorced four years later. A Florida judge gave Shalhoub and his ex-wife full shared parental responsibility over their only child. Shalhoub was indicted in 1997 for one count of parental kidnapping in violation of the International Parental Kidnapping Crime act, which made it a crime to remove a child from the United States with intent to obstruct the lawful exercise of parental rights. He was never arrested and status was fugitive.
In 2015, Shalhoub filed a motion in Miami federal criminal court to allow his counsel to appear specially and seed a dismissal of the indictment arguing that the incitement lack factual specificity, challenge the Venue of the federal kidnapping law as contravening the laws of Saudia Arabia, along with other challenges.
The court denied all his claims. First the court of appeals found that it lacked appellate jurisdiction because the order denying Shalhoub’s motion was not immediately appealable as a final order. The court found that his issue did not fit within the very narrow type of pretrial order in criminal cases that qualify for an exception to the final order rule. That exception is called the collateral order doctrine or the doctrine of marginal finality. Marginal final order involves an issue that must be resolved that is fundamental to the further conduct of the case. The court of appeals did not see that applied here.
The court also denied the defendants appeal from a denial of the defendant’s motion for a writ of mandamus to compel the district court to rule on his motion to dismiss the indictment without requiring the defendant to appear. The defendant failed to establish that he has no adequate meant to challenge the indictment. The court rejected his argument that he is under no obligation to travel to the United States and his indictment will be pending indefinitely unless the court compels the district court to rule. But the fact that he does not want to submit to the jurisdiction of the federal courts does not mean that the legal remedies available to challenge his indictment are inadequate. The defendant has not shown any clear abuse of discretion by the district court by applying the constructive flight in determining he was a fugitive.
The court of appeals determined that he has an adequate means to obtain relief in by appearing in Miami federal court with his attorney. Therefore his right to the writ is not clear and indisputable. It concluded that if the Shalhoub wants to challenge the indictment he need only submit himself to the jurisdiction of the district court.