USA – FEDERAL – PREVOT – 1995

In re Prevot (6th Cir. 1995)59 F.3d 556
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In re Ben Jean Prevot and Airelle Dominque Prevot, the Minor
Children.

Jean-Claude Prevot, Petitioner-Appellee,

v

Debra Moseman Prevot, Respondent-Appellant.

Nos 94-5854 & 94-6440

United States Court of Appeals, Sixth Circuit

Argued 07 Oct 1994, Decided 14 Jul 1995

Before: Jones, Siler and Godbold,* Circuit Judges.

GOLDBOLD, Circuit Judge
This appeal, in No. 94-5854, is from the judgment of the
district court ordering the children of Jean-Claude Prevot and
Debra Moseman Prevot, who are located with the mother in
Tennessee, returned to the custody of the father in France.1 It
is a case of first impression. The father brought suit under the
International Child Abduction Remedies Act (ICARA), 42 U.S.C.
Secs. 11601-610, which is a codification of the Hague Convention
on the Civil Aspects of International Child Abduction. The mother
contended that, pursuant to the fugitive disentitlement doctrine,
the father was disentitled to access to the district court because
he is a fugitive from a criminal conviction in the United States.
The district court held his fugitive status was irrelevant. We
hold that because of the father’s status and actions as a fugitive
felon the court should haye dismissed the case, and we reverse and
remand with directions to dismiss. In case No. 946440 the district
court assessed against the mother attorney’s fees and the expenses
of transporting the children to France. The final order in that
case is reversed.

In 1980, 29 countries met and adopted the Convention, designed to
respond to a problem of international abduction of children by
their parents. Both the United States and France are signatories
to the Convention. Article 1 of the Hague Convention establishes
two goals: to ensure the prompt return of wrongfully removed or
retained children to the Contracting State of their habitual
residence, and to ensure that Contracting States mutually respect
the decisions regarding custody of and access to the children. The
United States became a party to the Convention on July 1, 1988,
and France is a party as well. See Exec. Order No. 12,648, 53
Fed.Reg. 30,637 (1988). See generally Hague International Child
Abduction Convention: Text & Legal Analysis, 5 Fed.Reg. 10,494
(1986); H.R.Rep. No. 525, 100th Cong., 2d Sess., reprinted in 1968
U.S.C.C.A.N. 386. In administering ICARA the courts are to
determine whether the chidren have been wrongfully removed from
their place of habitual residence and are not to determine
custody. Hague Convention, Art. 19; 42 U.S.C. Sec 11601(b)(4).

The father is a fugitive from the United States, the country from
which he seeks return of the children to his custody in France.
So far as we can determine this is the first time a fleeing felon
has sought to invoke ICARA, and certainly the first effort by a
fleeing felon to haye children removed from the country from which
he has fled and sent to him in the country where he has taken
refuge. The district court, after holding Mr Prevot’s fugitive
status irrelevant, granted the relief that he sought. This court
of appeals granted a stay pending appeal.

I. The Factual Background

In November 1988 Jean-Claude Prevot and Debra Moseman Prevot
married. Ms Prevot is an American citizen. Mr. Prevot is a French
citizen who had resided in the United States for almost 20 years.
Approximately two weeks after their marriage Mr. Prevot was
arrested at their restaurant ir Texas on charges of theft of
property of thc value of $20,000 or more, a second-degrec felony.
The offense occurred prior to tbe marriage, and Ms. Prevot had not
known of it. Shortly thereafter the couple moved to Memphis,
Tennessee and started a restaurant there.

In 1989 Ms. Prevot gave birth to the couple’s first child, Ben. In
December of 1989, in the 195th Judicial District Court of Dallas
County, Texas, Mr. Prevot pleaded guilty to the charge
of theft and was sentenced to ten years confinement plus a fine.
2He was granted probation for ten years, with a condition that
he make monthly restitution of $380, a total of some $45,000, plus
a $40 per month probation officer’s fee. Prevot arranged for his
probation to be supervised by a Tennessee probation officer. Soon
after the Memphis restaurant opened Ms. Prevot arrived at it one
morning to find a notice from the Internal Revenue Service that
Mr. Prevot owed $125,000 in back taxes for a restaurant he
previously operated in Texas. She began making payments to IRS
from restaurant revenues to avoid the closing of their new
enterprise. Ms. Prevot testified, without dispute, that Mr. Prevot
had put the restaurant in the name of another person to avoid
responsibility for its debts. Tr. Il. p. 152-53.

In February 1991 the couple’s second child, Arielle, was born. Mr.
Prevot told Ms. Prevot-and he acknowledges-that he felt “caged in”
by his probation requirements and his payments to IRS and wanted
to leave Memphis. A plan was formulated for leaving the United
States and moving to France. The Texas authorities had
confiscated Mr. Prevot’s passport as part of his probation. App.
220; Tr. I, p. 13. To prevent the probation officer’s learning of
his night he made two restitution payments to the probation
officer in advance, through the May 1991 payment. This avoided
triggering notice to the probation officer that he was violating
terms of his probation, which required him to remain in the
vicinity of Memphis and to notify his probation officer prior to
any change in his home or employment address (conditions brought
over from Texas with the transfer of probation supervision). The
restaurant was closed. The family drove to Canada so that Mr.
Prevot could obtain a passport, which he succeeded in doing
through the French Embassy.3 After three to five weeks, as
soon as his passport was received, the family departed for Europe
and arrived in France in June 1991.

After travelling for several weeks the family settled down in
Mougins, France and opened a new restaurant. They lived in a 36
foot trailer throughout their time in France. At the appropriate
age Ben began attending school while Arielle spent her days in the
trailer or at the restaurant.

The parties haye stipulated that in February 1992 a warrant was
issued by the Texas court for Mr. Prevot because of his violation
of probation. The outstanding restitution balance was then
approximately $3S,000. The warrant was, of course, never served.

Beginning in November 1992 the couple began arguing. There is
conflicting evidence concerning allegations of the husband’s
physically abusing the wife, and of excessive drinking by the
wife, and of unsatisfactory living conditions in the trailer. The
district court did not make findings on these issues, and we need
not address them. In late 1992 or early 1993 Ms. Prevot began a
search lasting several months for the passports of her and the
children. She learned that Mr. Prevot had removed them from a safe
at the restaurant and turned them over to an attorney and had
instructed the attorney to keep them from her unless he (Mr.
Prevot) was first notified. Mr. Prevot’s intent in maintaining
possession and control of the passports was to force Ms. Prevot
and the children to remain in France. During his deposition, in
answer to a guestion whether he knew Ms. Prevot was leaving
France, he responded:

I couldn’t haye any idea [that she might leavel,
because I had the passports and all the papers of the
children in my possession.

App. 117. And he gave this testimony:

Q. Why were they [the passports] at the lawyer’s
office?

A. Just in case she [Ms. Prevot] would
try to take them…. [W]e knew a pro- blem
may be coming and we just took some safety
precautions.

Id. at 136.

Ms. Prevot testified that on May 19, 1993 Mr. Prevot moved out of
the trailer, taking his belongings with him. Mr. Prevot denied
moving out but admitted that he occasionally spent the night at
the restaurant. During this time Ms. Prevot, through the American
Consulate, filed for and obtained new passports for herself and
the children, without her husband’s knowledge. In August 1993 Ms.
Prevot left France with Ben and Arielle without Mr. Prevot’s
knowledge, and returned to Memphis, where they presently are
located. In October 1993 Mr. Prevot filed suit for divorce in
France. Personal service of process on Ms. Prevot was not
attained, and the French court, proceeding ex parte, granted
custody to Mr. Prevot pending the outcome of the present
litigation. At no time since he left the United States has Mr.
Prevot returned. Mr. Prevot filed his petition in the United
States District Court in December 1993.

II. District Court Proceedings

The district court held two hearings at which the mother and
others testified, but the father was unwilling to come to the
United States for the hearings and instead gave a deposition by
long distance telephone. On cross-exmination this was his
explanation for his failure to come:

Q. [Counsel for Ms. Prevot.] Okay. Is there a reason
why you decided not to come here personally to handle
this case, instead you’ve chosen to do this long
distance from Frarnce?

A. Because I am responsible for the restaurant, and I
cannot abandon the restaurant at this time.

Q. Is it possible that you are also avoiding coming
here because of the warrant for your arrest?

A. I’m not avoiding anything.

Q. Okay, you are not. :

MS. FOGELMAN [Counsel for Mr. Prevot]: Jean-Claude
haye you been advised by an attorney possibly not to
come to the United States?

THE WITNESS: I haye an attorney in Dallas. And he
told me that until the new development is resolved, I
haye no reason to come to the States.

App. 128. Dallas is the location of the court from whose
conviction Mr. Prevot fled. Ms. Fogelman, his counsel in this
case, is from Memphis. The restaurant in France had closed, and
Mr. Prevot was using it as a site to give cooking lessons.

ICARA requires the petitioner to establish by a preponderance of
the evidence that the child has been wrongfully removed within the
meaning of the Convention. 42 U.S.C. Sec 11603(e)(1)(A). Wrongful
removal occurs when the child is removed, in violation of the
rights of custody, from the state in which the child was
“habitually resident,” and at the time of removal those rights
must haye been actually exercised. Hague Convention, Art. 3. The
term “habitual resident” is not defined in ICARA or the language
of the Convention. As a consequence the facts and circumstances of
each case must be assessed. Friedrich v. Friedrich, 983 F.2d 1396,
1401 (6th Cir.1993). “The intent is for the concept [habitual
residence] to remain fluid and fact based, without becoming
rigid.” Levesque v. Levesque, 816 F.Supp. 662, 666 (D.Kan.1993).

It is not disputed that Mr. Prevot and Ms. Prevot had joint
custody of the children. The district court held that Mr. Prevot
had carried his burdens of establishing by a preponderance of the
evidence that the children were “habitual residents” of France at
the time of their removal and that he was exercising his custodial
rights at the time of removal.4

Under 42 U.S.C. Sec 11603(e)(2)(A) a respondent who opposes the
return must establish that an exception set forth in Article 13b or 20 of the Convention applies. Article 13b provides
that return need not be ordered if the person opposing return
establishes that there is “a grave risk that [the children’s]
return would expose [the children] to physical or psychological
harm or otherwise place [the children] in an intolerable
situation.” The exception must be proved by clear and convincing
evidence, Sec 11,603(e)(2)(A). The court held that Ms. Prevot did
not carry her burden of proving by clear and convincing evidence
that there was grave risk that return would expose the children to
physical or psychological harm.5

Ms. Prevot presented the testimony of Dr. Allen Battle, recognized
as an expert by all concerned. He had examined the children, ages
4 1/2 and 3 at the time of the examination. He testified that the
older child was terrified of his father and, in the terminology of
ICARA, would be subject to grave risk of psychological harm by
being sent to France, and the younger child would he subject to
grave risk of psychological harm if separated from her brother for
an extended period. The court discounted Dr. Battle’s testimony
and gave as one of its reasons that the doctor had neither seen
the children interacting with the father nor had an opportunity to
interview the father. Tbus Mr. Prevot’s unwillingness to come to
the United States deprived the court of expert testimony that it
considered necessary.

III. Disentitlement of Mr. Prevot to Access to the District Court

Ms. Prevot presented to the court her contention that pursuant to
its equitable powers it should deny Mr. Prevot access to the
court. At the first district court hearing counsel for Ms. Prevot
told the court that one of her defenses was that a fugitive
seeking relief from the court must be in compliance with the laws
of this country. Tr. ll, p. 47. Her trial brief set out that Mr.
Prevot moved her and the children to France for the purpose of
circumventing the jurisdiction of the courts, because of his
failure to abide by his conditions of probation, and because of
his fear of having to serve ten years in a Texas prison for
violating probation. Her proposed findings submitted to the court
reiterated her position. Her contentions referred to the rubric of
“unclean hands,” but they sufficiently brought to the court’s
attention the issue of whether Mr. Prevot’s status and conduct
barred him from access to the court. The court considered the
matter and held:

Mrs. Prevot also argues that the equitable doctrine
of unclean hands should preclude the relief sought by
the [sic] Mr. Prevot. Mrs. Prevot contends that her
husband, who is a fleeing felon from Texas, should
not be allowed to use a court system from which he
fled to obtain the return of his children. Mr. Prevot
seeks relief, however, under a treaty (the Hague
Convention) and the International Child Abduction
[Remedies] Act passed by Congress to implement it.
The relief provided by the Act is simply not subject
to traditional equitable defenses. Moreover, one
requirement of the defense of unclean hands is that
the alleged wrongful conduct be directly related to
the matter in litigation. Mr. Prevot’s initial flight
from the United States and violation of the terms of
his probation is simply unrefated to his request that
the children be returned to the country of their
habitual residence as provided by the Act. In any
event, Mrs. Prevot aided her husband in his initial
night from the United States. She cannot now attempt
to use the activity in which she voluntarily
participated to disqualify her husband.

855 F.Supp. at 922 (emphasis added; citation omitted).

The finding that Mr. Prevot’s flight is unrelated to this
case was fundamental error. His status, and actions, as fugitive
are central to the case. Once their significance is recogized it is apparent that the district court abused its
discretion in declining to invoke its equitable power to hold Mr.
Prevot disentitled to assert his claim in a United States district
court.

A. Fugitive disentitlement-an equitable power of the court.

The fugitive disentitlement doctrine limits access to courts in
the United States by a fugitive who has fled a crimlual conviction
in a court in the United States. The doctrine is long-established
in the federal and state courts, triai and appellate.

The power of an American court to disentitle a fugitive from
access to its power and authority is an equitable one. U.S. v.
Sharpe, 470 U.S. 675, 681 n. 2, 105 S.Ct. 1568, 1573 n. 2, 84
L.Ed.2d 605 (1985); United Elec., Radio & Mach. Workers of Am. v.
168 Pleasant St. Corp., 960 F.2d 1080, 1098 (1st Cir.1992); U.S. v
Van Cauwenberghe, 934 F.2d 1048, 1054-55 (9th Cir.1991); U.S. v.
Persico, 853 F.2d 134, 136 (2d Cir.1988); Brinlee v. U.S., 483
F.2d 925, 926 (8th Cir. 1973). See also Conforte u Commissioner,
692 F.2d 587, 590 (9th Cir.1982), stay denied, 459 U.S. 1309, 103
S.Ct. 663, 74 L.Ed.2d 588 (1983).6

B. Disentitlement of access to appellate courts.

The doctrine was first applied in the federal courts by the
Supreme Court’s denial of its processes for a fugitive’s appeal to
the Court from his conviction in Washington Territory. Smith v
U.S., 94 U.S. 97, 24 L.Ed. 32 (1876). The Court drew upon earlier
state cases. Smith was followed by Bonahan v Nebraska, 125 U.S.
692, 8 S.Ct. 1390, 31 L.Ed. 854 (1887), a similar case. Soon after
Smith and Bonahan the court considered the constitutionality of
disentitlement when invoked by a state court. The Supreme Court of
Georgia had dismissed an appeal to it by a fugitive from a death
penalty conviction. Over due process objections the Supreme Court
affirmed. Allen v Georgia, 166 U.S. 138, 17 S.Ct. 525, 41 L.Ed.
949 (1897). Accord, Brinlee v Crisp, 608 F.2d 839, 857 (lOth
Cir.1979), cert denied, 444 U.S. 1047, 100 S.Ct. 737, 62 L.Ed.2d
733 (1980).

In Eisler u U.S., 338 U.S. 189, 69 S.Ct. 1453, 93 L.Ed. 1897, cert
dismissed, 338 U.S. 883, 70 S.Ct. 181, 94 L.Ed. 542 (1949), the
litigant appealed from a contempt of Congress conviction. After
submission of his case to the Court on the merits he fled the
country, and the Court, applying Smith and Bonahan, struck his
case from the docket.

The most familiar federal case is Molinaro v New Jersey, 396 U.S.
365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970), in which the Court,
citing Smith, Bonahan, Allen v Georgia, and Eisler, applied
disentitlement to the appeal of a fugitive from a state court
conviction.

No persuasive reason exists why this Court should
proceed to adjudicate the merits of a criminal case
after the convicted defendant who has sought review
escapes from the restraints placed upon him pursuant
to the conviction. While sueh an escape does not
strip the case of its character as an adjudicable
case or controversy, we believe it disentitles the
defendant to cau upon the resources of the Court for
determination of his claims. In the absence of
specific provision to the contrary in the statute
under which Molinaro appeals, 28 U.S.C. Sec 1257(2),
we conclude, in light of the Smith and Bona)lan
decisions, that the Court has the authority to
dismiss the appeal on this around.

Id at 366, 90 S.Ct. at 498-99. In 1975 the Court confirmed the
history and vitality of the doctrine.
This Court itself has long followed the practice of
declining to review the convictions of escaped criminal defendants
…[,] a long-standing and established principle of American law.

Estelle v. Dorrough 420 U.S. 534, 537, 95 S.Ct. 1173, 1175, 43
L.Ed.2d 377 (1975).

Since Molinaro was handed down in 1970, in what we estimate to be
more than 100 cases, all or substantially all federal circuit
courts haye invoked Molinaro and its predecessors and successors
to disentitle appellants, criminal and civil, from the appellate
processes of the court. In some cases the court has dismissed the
appeal unconditionally, in others with conditions upon the
fugitive’s returning to custody within some fixed period. Other
decisions haye refused to reinstate appeals that haye been
summarily dismissed. Still other cases haye been concerned with
the effect of the fugitive’s voluntary return to custody before
fugitivity has been made an issue.7

Disentitlement of access to appellate court applies to appeals in
civil cases as well as to criminal appeals: Broadway v. City of
Montgomery, 530 F.2d 657 (5th Cir.1976) (dismissing the appeal in
a Sec 1983 action of a fugitive from a state conviction); Conforte
v Commissioner, 692 F.2d 587, 589 (9th Cir. 1982) (dismissing the
appeal of a civil tax assessment against appellant, a fugitive
from a federal tax conviction, and stating, “[T]he rule [of
disentitlement] should apply with greater force in civil cases
where an individual’s liberty is not at stake.”), stay denied, 459
U.S. 1309, 103 S.Ct. 663, 74 L.Ed.2d 588 (1983); Stern v. U.S.,
249 F.2d 720 (2d Cir. 1957) (dismissing the appeal by fugitives
from fines and costs for contempt in failing to obey a grand jury
subpoena), cert. denied, 357 U.S. 919, 78 S.Ct. 1360, 2 L.Ed.2d
1364 (1958).

Numerous cases haye denied appellate access to appellants seeking
review of denials of habeas corpus relief. Johnson v. Laird, 432
F.2d 77 (9th Cir.1970) (district court dismissed petition for
habeas corpus, litigant went AWOL pending his appeal, appeal
dismissed); Arana u U.S. Immigration & Nat. Serv., 673 F.2d 75 (3d
Cir.1982) (dismissing the appeal of the denial of a habeas corpus
petition of litigant who had been declared deportable and had
hidden his whereabouts from authorities); Gonzales u Stover, 575
F.2d 827 (lOth Cir.1978) (habeas petition by fugitive dismissed,
certificate of probable cause denied by circuit court); U.S. v.
Glomb, 877 F.2d 1 (5th Cir.1989) (affirming the dismissal of a
habeas corpus petition on the around that fugitivity was a
voluntary by-pass where, after pleading guilty with the right to
appeal a constitutional issue, defendant escaped and his direct
appeal was dismissed); Lopez v. Malley, 552 F.2d 682 (lOth
Cir.1977) (petition for habeas denied, petitioner fled pending
appeal, appeal dismissed).

In Van Blaricom v Forscht, 490 F.2d 461 (5th Cir.1974) (en banc),
cert. denied, 423 U.S. 915, 96 S.Ct. 222, 46 L.Ed.2d 144 (1975),
disentitlement was retroactively applied in a civil case by an en
banc decision of the Court of Appeals, which vacated the decision
of a panel that had not known appellant was a fugitive. In a civil
case the Third Circuit applied disentitlement prospectively in Ali
v. Sims, 788 F.2d 954 (3d Cir.1986), to deny a fugitive future
access to the district court for a new trial. Damages were awarded
to plaintiff. Plaintiff and defendants appealed, and plaintiff
fled, h√ľacking a plane and endangering passengers. The court
reversed the judgment for plaintiff but, applying Fed. R.Civ.P. 37
and 41 and Molinaro, held plaintiff was not entitled to a new
triai.

[T]he principles of Molinaro intersect with the
principles underlying Fed.R.Civ.P. 37 & 41, which
render a party’s misconduct a basis for the dismissal
of his case. See supra pp. 957-958. Indeed, the cases
involving dismissals under the Federal Rules
generally entail conduct far less egregious than a
flight from justice. Thus, the jurisprudence
upholding sueh sanctions as necessary and proper in
an era of court backlogs dovetails with the Molinaro
doctrine. Cf: Eash v Riggins Trucking, Inc., 757
F.2d 557 (3d Cir.1985) (in banc) (it is within the “inherent powers” of the court to take
sueh actions as are necessary for the effcctive
adtninistration of the judicial System).

In sum, the concerns that animate Molinaro well as
the principles that undergird Rule 37 and Rule 41
sanctions, dictate that Ali, whose contempt for
justice was manifest in the egregious act of
skyjacking a plane and endangering innocent lives in
a flight from justice, not be awarded a new triai.

ld at 959.

C. Disentitlement of access to federal trial courts.

Disentitlement applies to federal triai courts in civil cases as
well as to appellate courts.8

Civil litigation, in general: Schuster v U.S., 765 F.2d 1047 (llth
Cir.1985) (affirming the dismissal of a petition by a fugitive for
review of a tax assessment); Doyle v. U.S. Dep’t of Justice, 668
F.2d 1365 (D.C.Cir.1981) (affirming the dismissal of an FOIA suit
by a fugitive seeking records), cert. denied 455 U.S. 1002, 102
S.Ct. 1636, 71 L.Ed.2d 870 (1982); Dawkins v MitcheU, 437 F.2d 646
(D.C.Cir.1970) (affirming the dismissal of a civil suit by a
fugitive to enjoin enforcement of a warrant).

Section 1983 cases: Seibert v Johnston, 381 F.Supp. 277
(E.D.Okla.1974) (dismissed for fugitivity); Beckett v. Cuyler, 523
F.Supp. 104 (E.D.Pa.1981) (Sec 1983 case alleging unconstitutional
conditions of confinement, case closed when petitioner escaped;
Rule 60(b) motion to reopen denied based on Molinaro).9

Habeas corpus cases: Bailey v U.S. Commanding Officer, 496 F.2d
324 (1st Cir.1974) (affirming the dismissal of a petition for
habeas corpus by person AWOL from the Army); Clark v Dalsheirn,
663 F.Supp. 1095 (S.D.N.Y.1987) (fugitive from state conviction
and from arrest warrants on other charge petition for habeas
dismissed); U.S. v. Collins, 651 F.Supp. 1177 (S.D.Fla.1987) (28
U.S.C. Sec 2255 petition granted by court without knowledge that
petitioner had just escaped; court sua sponte reinstated
conviction and sentence and vacated relief granted); Potter v.
Davis, 519 F.Supp. 621 (E.D.Tenn. 1981) (state criminal appea]
dismissed fo fugitivity; federal habeas denied because decision
proper under state law and federal law), affd, 701 F.2d 180 (6th
Cir.1982) (table); Lewis v Delaware State Hosp., 490 F.Supp. 177
(D.Del.1980) tpetitioner fugitiy from conffnement in state mental
hospital pursuant to finding of not guilty by reason of insanity).

Civil forfeiture cases: U.S. v. Timbers Preserve, 999 F.2d 452
(lOth Cir.1993) (affirming the forfeiture of real estate in a
default judgment against claimant for fugitivity); U.S. v. Eng,
951 F.2d 461 (2d Cir.1991) (affirming the default judgment against
a fugitive in a forfeiture case); U.S. v One Parcel of Real
Estate, 868 F.2d 1214 (11th Cir.1989) (affirming the denial to a
fugitive of access to trial of an in rem forfeiture action); U.S.
v $129,374 in U.S. Currency, 769 F.2d 583 (9th Cir.1985)
(affirming the denial of a petition by a conservator of a
fugitive’s estate to intervene in a civil forfeiture case), cert.
denied, 474 U.S. 1086, 106 S.Ct. 863, 88 L.Ed.2d 901 (1986); U.S.
v $45,940 in U.S. Currency, 739 F.2d 792 (2d Cir.1984) (affirming
judgment on the pleadings for the government against a fugitive
seeking remission of forfeited funds); U.S. v Real Property
Located at Incline Village, 47 F.3d 1511 (9th Cir.1995) (affirming
order striking opposition to forfeiture of drug-related realty,
filed by defendant who had fled to Switzerland from indictment on
drug charges); U.S. v One Parcel of Real Property, 776 F.Supp. 482 (W.D.Mo.1991) (opposition to forfeiture barred when
filed by petitioner avoiding service of an outstanding warrant),
aff’d, 982 F.2d 526 (8th Cir.1992) (table); U.S. v $182,980 in
U.S. Currency, 727 F.Supp. 1387 (D.Colo.1990) (default judgment
against claimant for fugitivity).10

Two forfeiture cases haye emphasized the unwillingness of a
fugitive to return to the United States to process a claim that he
is himself asserting. In U.S v Eng, 951 F.2d 461 (2d Cir.1991),
the litigant had fled to Hong Kong from a U.S. indictment charging
RICO and narcotics violations. The district court denied his claim
to property which was the subject of a civil forfeiture
proceeding. In affirming, the Court of Appeals noted that he-like
Mr. Prevot-was unwilling to return voluntarily to the United
States to face criminal charges and would not agree to return to
contest the forfeiture. Id at 464-65. The Ninth Circuit, in Real
Propeffy Located at Incline Village, commented upon the
petitioner’s status as fugitive from an indictment:

At [the time of the district court’s order] he was
apparently free to return to the United States to
contest the forfeiture action, but chose not to do
so, presumably to avoid arrest on the criminal
charges. Under these circumstances, Brian was a
fugitive. See $129,374, 769 F.2d at 587-88 (“It is
important to recognize that Lewis has complete
control over the protection of his property interests
in this forfeiture proceeding; if he finds his
interests are sufficiently worth defending, he can
terminate his fugitive status and present his own
defense.”)….

Id at 1516.

D. The power of the district court.

Disentitlement is consistent with the inherent power of a court to
manage its own affairs. See Ali, 788 F.2d at 959; Doyle v U.S.
Dep’t of Justice, 494 F.Supp. 842, 845 (D.D.C.1980), affd, 668
F.2d 1365 (D.C.Ci] 1981), cert: denied, 455 U.S. 1002, 102 S.Ct.
1636, 71 L.Ed.2d 870 (1982). Inherent powers do not derive from
statute but are “powers vested in the courts upon their creation.
Eash v. Riggins, 757 F.2d 557, 561 (3d Ci, 1985) (en bane). See
also U.S. v. Hndson, 1 U.S. (7 Cranch) 32, 34, 3 L.Ed. 259 (1812
(“Certain implied powers must necessarily result to our courts of
justice from the nature of their institution.”). The inherent
power of the federal court haye been described as:

“rooted in the notion that a federal court sitting in
equity, possesses all of the common law equity tools
of a Chancery Court (subject, of course, to
congressional limita tion) to process litigation to a
just and equitable conclusion.” ITT Community
Development Corp. v. Barton, 569 F.2d 1351, 1359 (5th
Cir.1978); cf. Hall v Cole 412 U.S. 1, 5, 93 S.Ct.
1943, 1946, 36 L.Ed.2d 702 (1973) (courts possess
“inherent eguitable power”); Johnston v Marsh, 227
F.2d 528, 531 (3d Cir.1955) (“Our Federal judiciary
has consistently recognized that at common law this
inherent power existed.”).

Eash, 757 F.2d at 563.

[A]t least in the ahsence of contrary legislation,
courts under their inherent powers haye developed a
wide range of tools to promote efficiency in their
courtrooms and to achieve justice in their results.

Id at 564. Inherent powers include contempt power, sentences for
abuse of the judicial process, id. at 561, dismissal for failure
to prosecute, and disciplinary power over attorneys. The power to
dismiss exists in many situations. The district court has the
inherent power to dismiss sua sponte for want of jurisdiction. The
power to dismiss under Fed.R.Civ.P. 41(b) recognizes a power of
ancient origin in law and equity. Link v Wabash R.R. Co., 370 U.S.
626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). Under some
circumstances a court may dismiss under the ancient doctrine of
forum non conveniens. 15 Charles A. Wright, Arthur R. Miller, &
Edward H. Cooper, Federal Practice and Procedure Sec 3828 (2d ed.
1986). A court has the inherent power to manage its docket,
subject of course to statutes requiring special treatment for
specified types of cases.

The district court limited its consideration of equity powers to
“unclean hands,” and rejected that rubric as a “traditional equity
defense” to which the Act was not subject. 855 F.Supp. at 922.
This case does not involve balancing individual equities between
the parties. Pretermitting whether “unclean hands” can ever be
asserted as a “defense” or exception in an ICARA case by the party
opppsing the claim for return, disentitlement is an issue between
the claimant and the court, arising from conduct by the claimant
that triggers the institutional, and inherent, equitable power of
the court itself to respond to that conduct. We find nothing in
the Convention or the Act that purports to strip an American court
of the powers inherent to it as a court. Because of the unique
facts, the core of this case is not custody, or competing
interests of parents, but fundamental concerns of how the United
States operates its courts and how those courts may react to
abuses of American criminal process, to defiance of
judicially-imposed obligations owed to victims of crime, and to
flights from financial responsibilities to our government.

For the same reasons it is not relevant to the disentitlement
issue that Ms. Prevot accompanied her husband to France. Mr.
Prevot went to France with his wife and chiLdren in tow, but he is
no less a fugitive, no less disdainful of his responsibilities to
United States courts and obligations.

IV. Nexus or Connection

We turn to the relationship between the conviction from which the
litigant has fled and the claim with respect to which
disentitlement is considered. It does not matter that the court of
conviction and the court from whose processes the fugitive is
excluded are from different sovereigns. In many of the cases,
including seminal Supreme Court cases that we haye discussed, the
litigant was a fugitive from a state conviction and his federal
appeal was dismissed. Broadway specifically held that it was
immaterial that the litigant had fled from the custody of another
sovereign. 530 F.2d at 659. Moreover, it is inherent that the
interests of two sovereigns are implicated in each of the many
cases of disentitlement to access to federal courts for habeas
review of state convictions.11

The Supreme Court has expressed doubt about a rule that would
require automatic dismissal of an appeal for conduct by a
defendant having no connection with the appellate proceedings.
Ortega-Rodriquez v U.S., 507 U.S. —, —, 113 S.Ct. 1199, 1207,
122 L.Ed.2d 581 (1993). Other cases haye commented on the
existence of a nexus. Conforte, while pretermitting whether a
nexus was mandated, found a nexus was present: i.e., the
litigant’s conviction for evasion of employment taxes and his tax
court appeal “are each related components of a general tax evasion
scheme.” 692 F.2d at 592. In this case our concern is not with a
connection between this appellate court and the courts of Texas
but with the connection between the Texas conviction and the claim
before the district court, for we are reviewing the district
count’s denial of disentitlement. Assuming a nexus was required
between the district court proceeding and the Texas conviction, it was present. Mr. Prevot’s flight and his subsequent
invocation of ICARA were, paraphrasing Conforte, “related
components of a general scheme.” He fled to escape his criminal
conviction and other responsibilities to court, probation
officers, victim and government, and to assemble and hold his
family in a refuge beyond the reach of American courts and
American responsibilities. In Mr. Prevot’s hands ICARA is a tool
used to permit him to escape American justice and responsibilities
while holding his children with him. Flight was but one step, and
an ICARA claim the latest link, in a chain of proximately related
events that began with the Texas conviction and ended in the
district court proceedings in this case. It is obvious that if Mr.
Prevot returned to the United States and was imprisoned he could
not successfully maintain an ICARA claim. Either the habitual
residence of the children would haye changed, or they would no
longer be in his custody, or the exceptions relating to risk of
harm to the children would apply.

Our decision is consistent with concerns addressed by the Supreme
Court in Ortega-Rodriguez. The Court recognized that “our cases
consistently and unequivocally approve dismissal [by an appellate
court] as an appropriate sanction when a prisoner is a fugitive
during ‘the ongoing appellate process.”‘ 507 U.S. at , 113 S.Ct.
at 1204. Its central concern was whether the same rationale
mandated dismissal of the appeal of a defendant who fled the
jurisdiction of a district court but was recaptured before he
appealed. Mr. Prevot is within the pattern of cases “consistently
and unequivocally approv[ing] dismissal as an appropriate
sanction.” He was a fugitive during the ongoing process; the only
difference is that the relevant process is that of the trial
[federal district] court rather than the appellate court. He
triggered the relevant process by filing this case while he was an
unrecaptured fugitive, he remains in that status, and there is no
indication that it will ever change. The Court in Ortega-Rodriguez
noted that the defendant had been recaptured and was within the
power of the district court, which was capahle of defending its
own jurisdiction by imposing appropriate punishment. Id at —,
113 S.Ct. at 1207. In the present case Mr. Prevot is at large and
the Texas court has no way (short of the dubious, expensive, and
tortious possibilities of extradition) to protect its interest,
nor does the unreimbursed victim of Mr. Prevot’s theft, or the
IRS, or the Tennessee probation system haye means to safeguard its
respective interests. In a practical sense, the only agency with
power to sanction Mr. Prevot is the district court whose power and
authority he himself invoked.

Mr. Prevot has flouted the interests of the criminal courts in
enforcing his criminal conviction. He has walked away from his
agreement – made to the court to obtain probation – to make
restitution to his victim. He has spurned his obligation to the
United States government for taxes. He has misused the Tennessee
probation processes. He has inhibited the processes of the United
States District Court in this case by making unavailable to it the
depth of expert testimony that the court indicated that it needed.
He has abused the laudable purposes of ICARA by employing it to
further his scheme. His fugitivity, and his actions, constitute
abuses to which a court should not accede.

The decision of the district court in No. 94-5854 is REVERSED and
the case is REMANDED with instructions to dismiss the case.

In case No. 94-6440, pursuant to 42 U.S.C. Sec 11,607(b), the
district court assessed against Ms. Prevot attorney’s fees and the
expenses of transporting the children to France. The final order
in that case is REVERSED.

——————————

* The Honorable John C. Godbold, Circuit Judge of the United
States Court of Appeals for the Eleventh Circuit, sitting by
designation.

——————–
1. Prevot v. Prevot, 855 F.Supp. 915 (W.D.Tenn. 1994)

2. The district court stated that Mr. Prevot pleaded guilty in
December of 1988 to the Texas charge. 855 F.Supp. at 917.
However, a copy of the Texas judgment shows that the plea
and subsequent probation were entered December 4, 1989.

3. The record refers at times to obtaining passports-plural-in
Canada, at other times passport-singular-for Mr. Prevot. The
difference does not affect our decision.

4. In Fredrich this court remanded with instructions that the
district court make a specific inquiry into whether under
the law of Germany, the place of the child’s habitual
residence, the husband was exercising his custodial rights
at the time of the child’s removal. 983 F.2d at 1402. As we
discuss below, because of our disposition of the case we do
not need to address the issue of whether the court erred in
finding that the husband was exercising his custodial
rights.

5. Mr. Prevot did not specifically address, nor did the
district court, the second prong of Article 13b that return
would “otherwise place the children in an intolerable
situation.” Article 20 provides: “The return of the child
under the provisions of Article 12 may be refused if this
would not be permitted by the fundamental principles of the
requested State relating to the protection of human rights
and fundamental freedoms.” The distnct court did not address
Article 20, and we need not.

6. 6. The doctrine is not jurisdictional in nature. Molinaro v.
New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 498, 24 L.Ed.2d
586 (1970) (“[S]uch [fugitive status] does not strip the
case of its character as an adjudicable case or
controversy….”); United Elec., Radio & Mach. Workers,
supra (“Disentitlement is not a matter of jurisdictional
dimension; rather, it is a concept premised on principles of
equity.”); Van Cauwenberghe, supra; U.S. v. Freelove, 816
F.2d 479, 480 (9th Cir.1987). {PARA} Nor does the doctrine
implicate constitutional pnvileges; rather it rests upon the
supervisory power of the federal court to administer the
federal court system. Goeke v. Branch,— U.S. —, —, 115
S.Ct. 1275, 1277, 131 L.Ed.2d 152 (1995); Ortega-Rodriguez,
507 U.S. —, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993).

7. State appellate cases invoking disentitlement are legion
since long before, and after, Molinaro. Indeed, Smith v.
U.S., the first Supreme Court case, and Allen v. Georgia,
drew on state authorities.

8. Disentitlement has little play for the crirninal accused at
his merits trial,’since.fugitivity toefore or during triai
invokes other doctrines. But see U.S. v. Sacco, 571 F.2d 791
(4th Cir.), cerf. denu~d, 435 U.S. 999, 98 S.Ct. 1656, 56
L.Ed.2d 90 (1978), in which a question arose during triai of
whether the govermnent had relied upon allegedly improper
wiretap evidence. The court reserved ruling on the taint
issue until after trial. After a verdict of guilty the
court began a taint hearing. Before it was completed the
defendant fled. The court dismissed the taint proceeding.
The court of appeals affirmed on Molinaro.

9. We haye above noted Broadway, which denied appellate court
access for a Para 1983 appeal brought by a state fugitive.

10. The Seventh Circuit reversed a district court’s application
of disentitlement to a litigant who contested forfeiture of
his funds, on the ground that it was inappropriate where the
government had initiated the action and fugitivity had not
been proved. U.S. v. $40,877.59 in U.S. Currency, 32 F.3d
1151 (7th Cir.1994). The Sixth Circuit allowed a fugitive to
appeal the district court’s forfeiture order because it was
an in rem proceeding and other creditors might haye rights.
U.S. v. $83,320 in U.S. Currency, 682 F.2d 573 (6th Cir.
1982). The Second, Ninth and Eleventh Circuits haye declined
to follow the in rem rationale: $45,940, supra; $29,374,
supra, One Parcel, supra. In any event the issues of
governmental initiation of a forfeiture action and the
effect of its being an in rem proceeding are not present in
the case before us.

11. While not a prerequisite to our decision, we note that in
this case both sovereigns have well established policies of
disentitlement. Texas incorporated disentitlement into its
statutory law, Tex.Code Crim.Proc.Ann. art. 44.09, which
provided that if a defendant convicted of a felony flees
pending his appeal the jurisdiction of the appellate court
shall no longer attach. The statute was held constitutional,
even as applied to a fugitive whose appeal was dismisscd
after his recapture. Estelle v. Dorrough, 420 U.S. 534, 95
S.Ct. 1173, 43 L.Ed.2d 377 (1975). The Texas statute
replaced a somewhat similar common law rule. Id. at 535 n.
1, 95 S.Ct. at 1174 n. 1. The statute was applied in
Thompson v. State, 641 S.W.2d 920 (Tex.Crim.App.1982). It
was repealed and replaced in 1986 by Rule 60, Tex. Rules
App.Proc., which provides for dismissal of a criminal appeal
on motion of the state if the appellant has escaped pcuding
appeal and has not voluntarily rcturned within 10 days after
escaping.