UNITED STATES OF AMERICA, PETITIONER V. WILLIAM HARRIS SHARPE AND
DONALD DAVIS SAVAGE

   No. 83-529

   In the Supreme Court of the United States

   October Term, 1984

   On Writ of Certiorari to the United States Court of Appeals for the
Fourth Circuit

   Reply Brief for the United States

   The arguments raised in the brief of amicus curiae in support of
the judgments below were anticipated and answered in our opening brief
and do not require further response.  We do believe, however, that the
Court may wish to consider the question of the effect, if any, of
respondents' fugitive status on the proper disposition of this case,
and we therefore address that question herein.

   The government's petition for a writ of certiorari in this case was
filed on September 27, 1983, and was granted on June 18, 1984.  On May
11, 1984, while the petition was pending, counsel for respondents
advised the Clerk of this Court by letter that respondent Sharpe had
become a fugitive with respect to charges pending in the Northern
District of Georgia and the State of North Carolina (Motion to Proceed
In Forma Pauperis 1 & Exh. A).  Thereafter, on July 11, 1984, the
United States District Court for the District of South Carolina
entered orders forfeiting the bonds of both respondents due to their
failure to appear before the court for a bond hearing on July 10, 1984
(Motion to Proceed In Forma Pauperis 1 & Exh. B).  As of this writing,
we are advised by the United States Attorney's office that, to the
best of its knowledge, respondents remain fugitives.  /1/

   At the outset, we note that respondents' fugitive status does not
affect this Court's Article III jurisdiction to decide this case.  The
government, which has sought review of the court of appeals' decision
reversing respondents' convictions, clearly has a "live" interest in
the outcome of the case.  Reversal of the decision below would
reinstate the judgments of conviction and sentences entered by the
district court and would subject respondents to imprisonment on their
convictions.  For this reason, respondents, wherever they may be, also
retain a legally cognizable interest in the outcome of the case.  See
United States v. Villamonte-Marquez, No. 81-1350 (June 17, 1983), slip
op. 1-3 n.2;  Powell v. McCormack, 395 U.S. 486, 496-497 (1969).
Indeed, in Molinaro v New Jersey, 396 U.S. 365, 366 (1970), the Court,
while declining to adjudicate an appeal brought by a criminal
defendant who had become a fugitive, expressly stated that the
defendant's "escape does not strip the case of its character as an
adjudicable case or controversy."

   The question remains, however, whether respondents' fugitive status
should, as a matter of sound judicial discretion, affect the manner in
which the Court disposes of this case.  As we see it, there are
basically three options.  First, the Court could proceed to decision
on the merits of the issues presented, entirely ignoring the fact that
respondents are fugitives and are unavailable to suffer the
consequences of any judgment adverse to their interests that the Court
may render.  Second, the Court could vacate the judgment of the court
of appeals in respondents' favor and remand for the purpose of
dismissing respondents' appeals, without reviewing the merits of the
issues on which the government's petition was granted.  Finally, the
Court could proceed with review on the merits, reversing the judgment
of the court of appeals if it is in error and vacating the judgment if
it is not.  We believe the first option is incompatible with the sound
principles underlying the Molinaro doctrine and should be rejected.
While both the second and third approaches have something to commend
them, for the reasons we set forth below we submit that the balance of
public interests favors the third course.

   In Molinaro, the Court dismissed the appeal on the ground that the
appellant had become a fugitive.  The Court explained (396 U.S. at
366):

      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.  * * * (S)uch an
      escape * * * disentitles the defendant to call upon the
      resources of the Court for determination of his claims.

   See also Eisler v. United States, 338 U.S. 189 (1949);  Bonahan v.
Nebraska, 125 U.S. 692 (1887);  Smith v. United States, 94 U.S. 97
(1876).  Of course, this case may be distinguished from Molinaro
because here the party seeking review in this Court is the government,
not the escaped defendants.  Consideration of the policies that inform
Molinaro demonstrates, however, that this distinction does not support
a difference with respect to the escaped defendants' loss of
entitlement to a ruling by this Court in their favor.

   To begin with, although it is true that the case came to this Court
on the government's petition for certiorari, it was respondents'
appeal of their convictions that set in motion the chain of events
that led the government to petition for review of the court of
appeals' decision.  If respondents had become fugitives during the
pendency of their appeals in the court below, there is no question
that, under Molinaro, the court could and presumably would have
exercised its discretion to decline to adjudicate their claims.  See
Estelle v. Dorrough, 420 U.S. 534, 537 (1975);  United States v.
Shelton, 508 F.2d 797, 799 (5th Cir.), cert. denied, 423 U.S. 828
(1975) (collecting cases).  Respondents should be in no better
position merely because they postponed their flight until after the
government sought review of the court of appeals' decision in their
favor.

   Indeed, the rationale for dismissal of an appeal when the appellant
is at large is equally applicable to respondents' situation.  As the
Court explained in Smith v. United States, 94 U.S. at 97:

      It is clearly within our discretion to refuse to hear a criminal
      case in error, unless the convicted party, suing out the writ,
      is where he can be made to respond to any judgment we may
      render.  In this case it is admitted that the plaintiff in error
      has escaped, and is not within the control of the court below,
      either actually, by being in custody, or constructively, by
      being out on bail.  If we affirm the judgment, he is not likely
      to appear to submit to his sentence.  If we reverse it and order
      a new trial, he will appear or not, as he may consider most for
      his interest.  Under such circumstances, we are not inclined to
      hear and decide what may prove to be only a moot case.

   See Estelle v. Dorrough, 420 U.S. at 543-544 (Stewart, J.,
dissenting);  Dawkins v. Mitchell, 437 F.2d 646, 647 (D.C. Cir. 1970).

   The guiding principle -- equally applicable without regard to the
identity of the party that has initiated the proceedings in this Court
-- is whether the defendant is prepared to submit to the jurisdiction
of the courts in the event of an unfavorable disposition of his case.
This principle should apply with special force when the issue to be
adjudicated does not touch upon the question of the defendant's guilt
or innocence, but concerns whether reliable evidence of guilt should
be suppressed in order to further the deterrent policies of the
exclusionary rule, of which the defendant is an incidental
beneficiary.  This Court determined in United States v. Havens, 446
U.S. 620 (1980), and Walder v. United States, 347 U.S. 62 (1954), that
the interest in maintaining the integrity of judicial proceedings
against false testimony outweighed the remote and speculative
possibility that the use of illegally seized evidence for impeachment
would impair the deterrent efficacy of the exclusionary rule.  So
here, the refusal to allow fugitive criminal defendants to secure
relief from a conviction, even if based on illegally seized evidence,
protects the integrity of the judicial process with even less
conceivable impact on official compliance with the Fourth Amendment.
/2/ We accordingly urge the Court to hold that respondents in this
case have forfeited any right to benefit from the judgment below, even
if that judgment is legally correct, by virtue of their flight from
justice.

   The question remains whether the Court should simply vacate the
judgment of the court of appeals and remand with directions to dismiss
the appeal /3/ or should decide the merits of the substantive Fourth
Amendment issues before turning to the question of remedy (which would
not arise if this Court were to reverse as to both respondents).  If a
defendant becomes a fugitive while an appeal of a district court's
suppression order is pending before a court of appeals, we believe the
proper course would be to vacate the suppression order without passing
upon the merits of the appeal.  But additional interests must be
weighed in the balance once this Court has granted review.  When the
government seeks review, its interests encompass more than the
correction of what it believes to be an erroneous disposition of the
particular case.  The decision to petition for certiorari also
reflects, in most instances, a determination that authoritative
disposition of the legal questions decided by the court of appeals is
important to the development and administration of the law and to the
conduct of the government's operations.  And, of course, the action of
this Court in granting plenary review upon the government's petition
tends to reflect its concurrence in the conclusion that the issues
presented call for authoritative disposition.

   Accordingly, we submit that the appropriate course would be for the
Court to proceed to decide the questions presented.  If the Court were
to disagree with the decision of the court of appeals, it should
reverse the judgment of that court.  If, on the other hand, the Court
were to agree with the lower court's decision, it should not affirm
the judgment below.  Instead, it should vacate the judgment of the
court of appeals and remand the case to that court with directions to
dismiss the appeals with prejudice.

   The course we propose, which this Court is empowered by 28 U.S.C.
2106 to adopt, would not require the Court to render an advisory
opinion.  As demonstrated above, the case itself presents a live
controversy, which Article III empowers this Court to adjudicate.
Moreover, as the Court observed in United States v. Leon, No. 82-1771
(July 5, 1984), slip op. 25, "courts have considerable discretion in
conforming their decision-making processes to the exigencies of
particular cases." Here, the Court should reach the merits because
"resolution of (the) Fourth Amendment question is necessary to guide
future action by law enforcement officers" (ibid.).  At the same time,
however, respondents, who have removed themselves from the custody and
control of the courts, are not entitled to any favorable relief from
this Court, regardless of its ruling on the merits.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   NOVEMBER 1984

   /1/ Our opening brief in this case was filed August 6, 1984.  While
we were aware at that time that respondent Sharpe had become a
fugitive, we did not learn of respondent Savage's fugitive status
until advised by letter of August 23, 1984, from opposing counsel.
For that reason, the Molinaro issue was not addressed in our opening
brief.

   /2/ Manifestly, no officer would be encouraged to undertake a
contemplated unlawful search or seizure by the possibility that the
fruits thereof might be used if the defendant becomes a fugitive
during the pendency of appellate proceedings.

   /3/ If this Court were to vacate the judgment of the court of
appeals without deciding the substantive issues on which it may grant
review, we believe it should not be open to the court of appeals
thereafter to reinstate its judgment in the event respondents are
subsequently apprehended or surrender themselves.  Such a course would
enable respondents to profit from their flight and would prejudice the
rights of the government.