United States v. Sorrentino

726 F.2d 876 (1984) | Cited 48 times | First Circuit | April 10, 1984

MEMORANDUM AND ORDER

In United States v. Sorrentino we upheld the district court on all but one point. In Part IV of our opinion we noted that, as the government itself conceded, it was error for the district court not to require production of certain sections of its report as "Jencks Act Material." The question narrowed to whether the failure to produce this material was harmless error. Accordingly, we remanded to the district court to make this determination and said:

The case is remanded to the district court for further proceedings consistent with the foregoing. If the district court finds that a new trial is necessary, then the verdict will be set aside and the judgment of conviction reversed. If the district court finds that the error was harmless, then the verdict and judgment of the district court is affirmed.

The district court has scheduled a hearing for April 26, 1984 to make this determination.

It has been brought to our attention that defendant Sorrentino has fled to the Bahamas, that the district court has granted a motion to cancel Sorrentino's bail, and that a capias for his arrest has issued. Under these circumstances no purpose would be served by a hearing, and we deem Sorrentino to have waived his right to assert that the non-production of the report or any parts thereof prejudiced him in any way. See, e.g., Molinaro v. New Jersey, 396 U.S. 365, 24 L. Ed. 2d 586, 90 S. Ct. 498 (1970) (per curiam) (escape disentitles defendant to call upon resources of court for determination of his claims).

As our opinion does not provide for a contingency such as this, it is ordered that so much of our mandate as is represented by Part IV of the opinion is recalled and vacated. The district court judgment is affirmed.

* Of the United States Court of International Trade, sitting by designation.

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