United States of America v. Azat Martirossian

Columbus, Ohio criminal defense lawyer represented the Defendant charged with participating in a bribery scheme to bribe a Kazakh official on behalf of Rolls-Royce Energy Systems, Inc., an Ohio subsidiary of a British firm.



Federal courts do not play "catch me if you can.” If a defendant refuses to show up to answer an indictment, ignores an arrest warrant, or leaves the jurisdiction, the court may decline to resolve any objections to the indictment in his absence.



What is known loosely as the fugitive disentitlement doctrine generally permits a federal court to

insist on a defendant's presence in the jurisdiction before it resolves challenges to the criminal

charges.



Azat Martirossian, a citizen of Armenia now living in China, refused to answer criminal

charges in the Southern District of Ohio. When his lawyers filed a motion to dismiss the

indictment, the district court declared him a fugitive and refused to rule on the motion until he

submitted himself to the jurisdiction of the Southern District—submitted himself in other words

to the benefits or burdens of the ruling. Martirossian appealed the decision and in the alternative

filed a mandamus petition asking us to order the district court to rule on his motion. Because the

district court's decision is not a final order, we lack jurisdiction over Martirossian's appeal. And

because Martirossian has not met the lofty bar for granting this extraordinary writ, we deny his

mandamus petition.

I.

Martirossian allegedly participated in a scheme to bribe a Kazakh official on behalf of

Rolls-Royce Energy Systems, Inc., an Ohio subsidiary of a British firm. Rolls-Royce makes

compressors and power turbines used in gas and oil power-generation projects. Martirossian and

his co-defendants, we are told, funneled money through U.S. banks to help Rolls-Royce secure

contracts from a joint Chinese-Kazakh state-owned gas enterprise. On May 24, 2018, a federal

grand jury indicted Martirossian on money laundering and conspiracy charges under 18 U.S.C.

§ 1956, and the district court issued a warrant to arrest him.

In response, his lawyers filed a motion to dismiss the indictment on the ground that

§ 1956 does not reach Martirossian's conduct. The district court held the motion in abeyance

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until he appeared in court or agreed to submit to the jurisdiction of the court. He appealed the

ruling and filed a mandamus petition asking us to require the district court to rule on the motion.

II.

Final order. We lack appellate jurisdiction over Martirossian's appeal. Courts of

appeals have authority to review only "final decisions” of the district courts, 28 U.S.C. § 1291, a

rule designed to prevent "piecemeal” adjudication, Abney v. United States, 431 U.S. 651, 656

(1977). Without the final order rule, cases might bounce back and forth between the trial and

appellate courts, as disgruntled litigants seek to reverse each and every ruling, no matter how

minor. The policy behind the rule is at its apex—its "strongest” in the words of the U.S.

Supreme Court—"in the field of criminal law.” United States v. Hollywood Motor Car Co.,

458 U.S. 263, 265 (1982) (per curiam).

Final orders normally are easy to spot. A final order ends litigation on the merits and

leaves nothing to do but execute the judgment. Midland Asphalt Corp. v. United States, 489 U.S.

794, 798 (1989). In the criminal context, that generally means a defendant may lodge an appeal

only after the court imposes a conviction and a sentence. Id.

That is not this case. The disputed action—a decision to hold a motion to dismiss in

abeyance until the defendant appears in court—does not end the litigation. Plenty of potential

chapters in this case remain to be told.

Martirossian's case also does not come within a limited exception to the rule—orders

treated as final even though they do not end the lawsuit. See Cohen v. Beneficial Indus. Loan

Corp., 337 U.S. 541, 546 (1949). To qualify, the order must (1) finally resolve the question at

hand, (2) involve a significant issue separate from the merits of the action, and (3) be

unreviewable on appeal from a final judgment. Id. The exception has a narrow scope in

criminal cases. Just four types of orders have made the cut: the denial of a motion to dismiss

based on the Double Jeopardy Clause, Abney, 431 U.S. at 659; the denial of a motion to dismiss

based on the Speech and Debate Clause, Helstoski v. Meanor, 442 U.S. 500, 506 (1979); a

court's order to forcibly medicate a mentally ill defendant, Sell v. United States, 539 U.S. 166,

176–77 (2003); and a court's refusal to reduce bail, Stack v. Boyle, 342 U.S. 1, 6 (1951). The

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setting of each exception confirms its narrow reach: The constitutional right not to be twice tried

would be lost in the absence of an immediate challenge, Abney, 431 U.S. at 660–62; the

constitutional right to speak in Congress without fear of being "questioned in any other Place”

would be compromised in the absence of an immediate challenge, Helstoski, 442 U.S. at 508; the

constitutional right not to be forcibly medicated would be shortchanged in the absence of an

immediate challenge, Sell, 539 U.S. at 176–77; and the constitutional right to non-excessive bail

would be sacrificed in the absence of an immediate appeal, see Flanagan v. United States, 465

U.S. 259, 266 (1984); Stack, 342 U.S. at 12 (Jackson, J., separate opinion).

On top of that, the Supreme Court has cautioned us time, Midland, 489 U.S. at 799, time,

Dig. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994), and time again not to

expand the collateral order club's "selective . . . membership,” Will v. Hallock, 546 U.S. 345,

350 (2006). That explains the many decisions of the Court rejecting attempted interlocutory

appeals under the collateral order doctrine. Here are a few examples in the criminal arena:

A defendant can't collaterally appeal a counsel's disqualification, Flanagan, 465 U.S. at 266–67;

a violation of grand jury secrecy, Midland, 489 U.S. at 799; or a vindictive prosecution,

Hollywood Motor, 458 U.S. at 267. The same goes for a speedy trial claim, United States v.

MacDonald, 435 U.S. 850, 857 (1978); a challenge to the sufficiency of an indictment, Abney,

431 U.S. at 663; and a motion to suppress evidence, see Cogen v. United States, 278 U.S. 221,

227 (1929).

In seeking to add fugitive disentitlement decisions to the short list of appealable non-final

orders in criminal cases, Martirossian comes up short. He does not appear to meet any of the

three Cohen requirements.

1. It is not clear, to start, that the district court's order "finally” resolves the motion to

dismiss the indictment. The court, recall, held the motion in abeyance until Martirossian agrees

to submit to the jurisdiction of the court, until, that is, he agrees to accept the potential benefit or

burden of any ruling. This precondition of mutuality leaves Martirossian just where he was

before his attorneys filed the motion, neither better nor worse for it.

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2. The issues presented are not sufficiently important and are not sufficiently distinct

from the merits of the action to warrant mid-case review. As to importance, Martirossian has

"no more of a freestanding right not to be labeled a fugitive, than a criminal defendant has a

freestanding right not to be labeled a defendant.” United States v. Shalhoub, 855 F.3d 1255,

1261–62 (11th Cir. 2017). Just as the one does not outweigh the finality requirement, neither

does the other. If Martirossian needs the district court to decide his motion, this international

businessman holds the key to unlock his dilemma: travel to Ohio and answer the charges or at

least commit to accept the consequences, good or bad, of the ruling. That is all the district court

asked of him.

Considerable overlap also exists between the arguments underlying his interlocutory

appeal and the merits of the case. Martirossian claims that he cannot be a fugitive from the

United States because he has never traveled to the country and his targeted conduct occurred

abroad. For many of the same reasons, Martirossian argues that the money laundering statute

does not apply to him. As Martirossian acknowledges, indeed hopes, a decision about whether

he counts as a fugitive would "lead the way to a determination of whether” the money laundering

statute covers foreigners like him. Resp. 12. By the defendant's own account, these issues are

interrelated, suggesting we should not decide them prematurely.

3. The key issue presented—does the federal statute cover this conduct?—is capable of

review after a final judgment. Yes, Martirossian's status as a fugitive would become moot if he

submits to the jurisdiction of the federal courts. But that is true for anyone unwilling to answer

an indictment or arrest warrant. And yet that claim alone has never warranted an interlocutory

appeal. In one sense, the chief remedy available on appeal—a reversal—always delays justice,

always cannot rewrite history, and thus always falls short of making the wronged party entirely

whole. Dig. Equip. Corp., 511 U.S. at 872.

Many trial court decisions, in truth, are effectively uncorrectable on appeal, including

ones just like this one. Imagine a federal defendant who thinks Congress has no authority under

the Commerce Clause to regulate a given activity. Just like a defendant who thinks a federal

statute does not reach (or cannot reach) conduct abroad, the defendant who thinks Congress has

exceeded its lawmaking power must await a conviction before appealing a district court's

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decision that Congress acted within its powers. Neither one of these trial rulings is immediately

appealable. A defendant does not increase his rights to an appeal by being a fugitive.

Cementing this conclusion is the reasoning of the one court of appeals to face this issue

straight on. In United States v. Shalhoub, a Saudi citizen allegedly took his daughter to Saudi

Arabia against his ex-wife's wishes. 855 F.3d at 1258. When a Florida grand jury indicted him

for kidnapping, he moved to appear through counsel and dismiss the indictment. Id. at 1258–59.

The district court applied the fugitive disentitlement doctrine and denied his motion without

prejudice, promising to allow the fugitive to reassert his claims if he came to court. Id. at 1259.

For many of the same reasons we adopt here, the Eleventh Circuit concluded that it

lacked jurisdiction to review the district court's decision under the collateral order doctrine. Id.

Shalhoub surveyed the many Supreme Court precedents refusing to permit collateral appeals and

noted that the defendant's motion fit into none of the exceptions. Id. at 1261. As the Eleventh

Circuit put it, "absent the assertion of a right not to be tried or the assertion of a right akin to the

right against excessive bail, a defendant must accept the burdens of trial and sentencing before he

obtains appellate review of an adverse ruling.” Id. Agreed.

Martirossian raises a few counterarguments. None makes a difference.

Martirossian analogizes his case to the denial of a motion to dismiss a case for double

jeopardy. Yes, the Double Jeopardy Clause guarantees a "right to avoid trial.” Dig. Equip.

Corp., 511 U.S. at 875. And yes, if 18 U.S.C. § 1956 does not apply extraterritorially, he would

in a sense have a right not to be tried under the statute. But the point proves too much. The

same could be said of all challenges to an indictment that would prohibit the charges and thus

conflates "a right not to be tried” with "a right whose remedy requires the dismissal of charges.”

Hollywood Motor, 458 U.S. at 269. Truth be told, "virtually every right that could be enforced

appropriately by pretrial dismissal might loosely be described as conferring a 'right not to stand

trial.'” Dig. Equip. Corp., 511 U.S. at 873; see Will, 546 U.S. at 351.

Martirossian asks us to consider another analogy—that determining a defendant's

fugitive status mirrors a motion to reduce bail because both circumstances "inform a defendant

of whether he or she may prove their innocence without confinement.” Resp. 10. But the right

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against excessive bail arises from the U.S. Constitution, and Martirossian has no constitutional

right not to be labeled a fugitive.

Today's dispute also differs from United States v. Bokhari, 757 F.3d 664 (7th Cir. 2014).

In that case, a district court applied the fugitive disentitlement doctrine to deny a foreign

defendant's motion to dismiss an indictment. The court of appeals held that it had jurisdiction

over the appeal on comity grounds because a Pakistani court already had found "insufficient

admissible evidence to sustain a prima facie case” for extradition, leaving it unclear whether the

United States lacked probable cause to prosecute and leaving it unclear whether a doublejeopardy-like violation would occur. Id. at 667, 670. In contrast, no other court, whether foreign

or domestic, has ruled on Martirossian's claim, and he doesn't—and can't—raise a comity claim

or anything like a double jeopardy claim as a result.

Mandamus petition. In the event the collateral order doctrine does not permit immediate

review of the court's order, Martirossian asks us to issue a writ of mandamus ordering the district

court to rule on his motion to dismiss. But these kinds of extraordinary writs present an even

more elusive target, especially when they look like efforts to end run the final order doctrine.

The All Writs Act allows a federal court of appeals to issue a writ of mandamus directing

a district court to enforce a specific duty. 28 U.S.C. § 1651(a). It is an "extraordinary” remedy

designed to confine a court to its proper authority or to require it to undertake a clearly

articulated duty. Will v. United States, 389 U.S. 90, 95 (1967). The applicant must satisfy three

requirements: (1) The petitioner must not have any other method of obtaining relief; (2) he must

show that he has a "clear and indisputable” legal right; and (3) he still must convince the court

that the "writ is appropriate under the circumstances.” Cheney v. U.S. Dist. Court for D.C.,

542 U.S. 367, 380–81 (2004) (quotation omitted).

Martirossian fails to meet each condition.

1. For one, he has a readily available means of obtaining a ruling on his motion to

dismiss the indictment. He can show up in the Southern District of Ohio, and the court as

promised will decide his motion. A multi-national businessman willing to work with an Ohio

company must take the bitter with the sweet. The benefit of working with an Ohio company

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comes with the duty to answer a charge of violating federal law arising from that work—or at

least agreeing to be bound by any ruling, whether for him or against him. Yet none of the

pleadings filed by Martirossian's lawyers indicates that he would agree to submit to the court's

jurisdiction if the court ruled against his motion to dismiss the indictment and determined that 18

U.S.C. § 1956 applies to his conduct.

2. The district court did not violate any clear and indisputable authority in taking this

route. It reasonably held that the fugitive disentitlement doctrine applies to actual flight and

constructive flight, in other words (1) to defendants who leave the country before or after an

indictment to evade justice or (2) to defendants who refuse to answer an indictment or arrest

warrant after they issue. We know of no case that bars applying it in both settings to pending

criminal charges. The purposes behind the doctrine apply in both settings. See OrtegaRodriguez v. United States, 507 U.S. 234, 242 (1993). And the doctrine promotes judicial

economy because it frees judges from giving what amount to advisory opinions that are unlikely

to be enforced if the court rules against the fugitive. Id.

We have previously applied the doctrine to litigants who, like Martirossian, do not

surrender themselves to law enforcement authorities. See, e.g., Garcia-Flores v. Gonzales,

477 F.3d 439, 442 (6th Cir. 2007). So too, a defendant need not be present in and leave a

jurisdiction to become a fugitive; the mere refusal to report for prosecution can constitute

constructive flight. See Shalhoub, 855 F.3d at 1263.

3. As for the exercise of our discretion, we must acknowledge a practical consideration.

The imperative that the final judgment rule apply with the "utmost strictness in criminal cases,”

Flanagan, 465 U.S. at 263, would not amount to much if a mandamus petition could be used to

circumvent it. That is what would happen here if we granted the writ to secure relief that the

final judgment rule prohibits. A better explanation than this one is needed.

That the status quo leaves Martirossian with risks of extradition or limits on his travel is

true. But the same is true for a criminal defendant who is charged with a crime in one State of

this country and refuses to make an appearance in that State's courts. He may be arrested in

another State and required to submit to the jurisdiction of the other State. See U.S. Const. art.

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IV, § 2, cl. 2; 18 U.S.C. § 3182 (implementing the Extradition Clause). The same is true with

respect to international travel and residency, though of course some countries (like China) don't

have an extradition treaty with the United States. See 18 U.S.C. § 3181.

Martirossian responds that he has no other adequate means of contesting his fugitive

status and of limiting the risk that he could be extradited if he travels to a country with an

extradition treaty with the United States. But he can get that relief without our help. All he has

to do is show up. No one who is indicted and who declines to answer the charge has a right to be

labeled a non-fugitive.

In re Hijazi, 589 F.3d 401 (7th Cir. 2009), does not alter this conclusion. Hijazi and

Martirossian do not stand in the same shoes. When Hijazi "learned of the indictment” against

him, "he surrendered to the Kuwaiti authorities. Had those authorities been inclined to detain

him and then to turn him over to the U.S. prosecutors, they could have done so. Or they could

have prosecuted him under Kuwaiti law.” Id. at 412–13. They did neither and instead objected

to the United States' conduct in issuing the indictment. Id. at 405. Martirossian did not submit

to Chinese authorities. Whatever the distant reaches of the fugitive disentitlement doctrine, it is

reasonable—and certainly not the denial of a clear and indisputable right—to distinguish

between a defendant who submits to authorities and one who doesn't.

For these reasons, we dismiss Martirossian’s appeal for lack of appellate jurisdiction and deny his mandamus petition.