                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 02-3410
                                  ___________


United States of America,               *
                                        *
            Appellee,                   *
                                        *      Appeal from the United States
      v.                                *      District Court for the Northern
                                        *      District of Iowa.
Alexandro Vasquez-Gutierrez,            *
                                        *
            Appellant.                  *

                                  ___________

                             Submitted: March 12, 2003

                                 Filed: July 8, 2003
                                  ___________

Before WOLLMAN, RICHARD S. ARNOLD, and SMITH, Circuit Judges.
                         ___________

SMITH, Circuit Judge.

      Alexandro Vasquez-Gutierrez was charged with possession of more than five
kilograms of cocaine with the intent to deliver, in violation of 21 U.S.C. §841.
Vasquez-Gutierrez was first tried to a jury in April 2001; however, the jury was
unable to reach a verdict, and a mistrial was declared. On December 17, 2001,
Vasquez-Gutierrez's second trial commenced. On the third day of his second trial,
Vasquez-Gutierrez absconded. The district court1 determined that Vasquez-Gutierrez
had voluntarily fled and submitted the case to the jury in his absence. The jury
returned a verdict of guilty, and the district court sentenced Vasquez-Gutierrez, in
absentia, to 121 months' imprisonment. Vasquez-Gutierrez's counsel lodged this
appeal on behalf of his fugitive client.

       While acknowledging defense counsel's commendable diligence, we cannot
consider the merits of his arguments on appeal. The Supreme Court has stated, "the
decision to appeal rests with the defendant." Roe v. Flores-Ortega, 528 U.S. 470, 479
(2000). The singular fact that this appeal comes to us from counsel without Vasquez-
Gutierrez's consent or knowledge is a sufficient ground to support dismissal.
Moreover, a defendant that has voluntarily fled–and remains a fugitive–is not entitled
to appellate relief. Molinaro v. New Jersey, 396 U.S. 365, 366 (1970). "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." Id. at 366. Although Vasquez-Gutierrez
chose to flee justice's sword before being convicted, the logic remains the same.
While in flight, he may not also avail himself of justice's shield.

      For the forgoing reasons, this appeal is dismissed.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.



      1
        The Honorable Mark W. Bennett, Chief Judge, United States District Court
for the Northern District of Iowa.

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