                                                                              FILED
                            NOT FOR PUBLICATION                               APR 24 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


In re: HAN YONG KIM,                             No. 13-72727

                                                 D.C. No. 8:09-cr-00077-JVS-6
HAN YONG KIM,

              Petitioner,                        MEMORANDUM*

  v.

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF
CALIFORNIA, SANTA ANA,

              Respondent,

UNITED STATES OF AMERICA,

              Real Party in Interest.


                   Appeal from the United States District Court
                      for the Central District of California
                    James V. Selna, District Judge, Presiding

                        Argued and Submitted April 7, 2014
                               Pasadena, California

Before: THOMAS, M. SMITH, and CHRISTEN, Circuit Judges.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      South Korean citizen Han Yong Kim petitions for a writ of mandamus

ordering the district court to permit him to make a special appearance to challenge

the sufficiency of the federal indictment against him for bribery. The district court

denied the motion, relying on the fugitive disentitlement doctrine and the principle

of mutuality in litigation.

      Mandamus is a “drastic and extraordinary remedy reserved for really

extraordinary causes.” Cheney v. U.S. Dist. Court, 542 U.S. 367, 380 (2004)

(internal quotation marks omitted). In determining whether a writ of mandamus

should issue, the Ninth Circuit considers five factors:

      (1) The party seeking the writ has no other adequate means, such as a
      direct appeal, to attain the relief he or she desires. (2) The petitioner
      will be damaged or prejudiced in a way not correctable on appeal. (3)
      The district court’s order is clearly erroneous as a matter of law. (4)
      The district court’s order is an oft-repeated error, or manifests a
      persistent disregard of the federal rules. (5) The district court’s order
      raises new and important problems, or issues of law of first
      impression.

Bauman v. U.S. Dist. Court, 557 F.2d 650, 654–55 (9th Cir. 1977) (internal

citations omitted).

       “[T]he absence of the third factor, clear error, is dispositive.” Perry v.

Schwarzenegger, 591 F.3d 1147, 1156 (9th Cir. 2010) (internal quotation marks

omitted). Kim has the “burden of showing that his right to issuance of the writ is



                                          -2-
clear and indisputable.” Bauman, 557 F.2d at 656 (internal quotation marks and

alterations omitted).

      As we review for clear error on a petition for mandamus, we need not—and

do not—resolve the underlying legal issue. So long as we are not firmly convinced

that the district court was wrong, “we cannot hold the district court’s interpretation

to be clearly erroneous, and thus we cannot issue the writ, even though the district

court’s interpretation might be overruled later on direct appeal.” DeGeorge v. U.S.

Dist. Court, 219 F.3d 930, 936 (9th Cir. 2000).

      Our sister circuits appear to have taken different positions on the key

question of whether fugitive disentitlement can be determined on the basis of

“constructive flight.” Compare United States v. Catino, 735 F.2d 718, 722 (2d Cir.

1984); In re Assets of Martin, 1 F.3d 1351, 1356–57 (3d Cir. 1993); United States

v. Barnette, 129 F.3d 1179, 1184 (11th Cir. 1997), with In re Hijazi, 589 F.3d 401,

412–13 (7th Cir. 2009).

      Here, as in Bauman, we conclude that “[i]n light of [the] absence of

Supreme Court and Ninth Circuit decisions and a split of authority in other

jurisdictions, we simply cannot conclude that the district court’s order is clearly

erroneous as a matter of law as that term is used in mandamus analysis.” Bauman,

557 F.2d at 660.


                                          -3-
      While we decline to decide whether the fugitive disentitlement doctrine

applies in a case like Kim’s where a foreign national residing abroad refuses to

voluntarily travel to the United States for trial in the absence of an extradition

order, we must conclude that the district court did not clearly err either in holding

that it does. Therefore, we must deny Kim’s petition.



      PETITION DENIED.




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