252
Rehnquist, C. J., dissenting
The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
Chief Justice Rehnquist, with whom Justice White, Justice O'Connor, and Justice Thomas join, dissenting.
The Court holds that, in general, a court of appeals may not dismiss an appeal based on a defendant's fugitive status if that status does not coincide with the pendency of the appeal. We disagree. The only difference between a defendant who absconds preappeal and one who absconds postap-peal is that the former has filed a notice of appeal while the latter has not. This "distinction" is not strong enough to support the Court's holding, for there is as much of a chance that flight will disrupt the proper functioning of the appellate process if it occurs before the court of appeals obtains jurisdiction as there is if it occurs after the court of appeals obtains jurisdiction. As a consequence, there is no reason why the authority to dismiss an appeal should be based on the timing of a defendant's escape. Although we agree with the Court that there must be some "connection" between escape and the appellate process, we disagree with the conclusion that recapture before appeal generally breaks the connection.1
It is beyond dispute that the courts of appeals have supervisory power to create and enforce "procedural rules governing the management of litigation." Thomas v. Arn, 474
1 The Court erroneously strikes the Holmes rule on the basis that "it reaches too many appeals," ante, at 250, n. 23, because there is no over-breadth doctrine applicable in this context. See Broadrick v. Oklahoma, 413 U. S. 601, 610-611 (1973) (overbreadth doctrine is the exception rather than the rule because "courts are not roving commissions assigned to pass judgment on the validity of the Nation's laws"). As long as the fugitive dismissal rule was applied legally to the facts of this case, the Eleventh Circuit's rule cannot be struck down. It is for this reason that we would affirm the Eleventh Circuit rather than vacating and remanding.
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