No. 95-173 In the Supreme Court of the United States OCTOBER TERM, 1995 BRIAN J. DEGEN, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION DREW S. DAYS, III Solicitor General JOHN C. KEENEY Acting Assistant Attorney LOUIS M. FISCHER Attorney Department of Justice Washington, D.C. 20530 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether the district court properly applied the fugitive disentitlement doctrine to bar petitioner from contesting a civil forfeiture. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinions below . . . . 1 Jurisdiction . . . . 1 Statement . . . . 2 Argument . . . . 8 Conclusion . . . . 19 TABLE OF AUTHORITIES Cases: Alvarez v. United States, cert. denied 115 S. Ct. 1092(1995) . . . . 12 Bonahan v. Nebraska, 125 U.S. 692 (1887) . . . . 9 Broadway v. City of Montgomery, 530 F.2d 657 (5th Cir. 1976) . . . . 10 Conforte v. Commissioner: 459 U.S. 1309 (1983) . . . . 10 692 F.2d 587 (9th Cir. 1982) . . . . 10 Daccarett-Ghia v. Commissioner, No. 95-1029 (D.C. Cir. Nov. 28, 1995) . . . . 10 Doyle v. United States Dep't of Justice, 668 F.2d 1365 (D.C. Cir. 1981), cert. denied, 455 U.S. 1002 (1982) . . . . 10 Estelle v. Dorrough, 420 U.S. 534 (1975) . . . . 9 Granfinanciera, S,A. v. Nordberg, 492 U.S. 33 (1989) . . . . 14 Molinaro v. New Jersey, 396 U.S. 365 (1970) . . . . 8 Ortega-Rodriguez v. United States, 113 S. Ct. 1199 (1993) . . . . 8-9 Prevot, In re, 59 F.3d 556 (6th Cir. 1995) . . . . 9-10, 11 Schuster v. United States, 765 F.2d 1047 (10th Cir. 1985) . . . . 10 Smith v. United States, 94 U.S. 97 (1876) . . . . 9 United States v. Contents of Accounts Numbers 3034504504 & 144-07143 at Merrill, Lynch, Pierce, Fenner & Smith, Inc., 971 F.2d 974 (3d Cir. 1992), cert. denied, 113 S. Ct. 1580 (1993) . . . . 10-11 (III) ---------------------------------------- Page Break ---------------------------------------- IV Cases-Continued: Page United States v. $83, 320 in United States Currency, 682 F.2d 573 (6th Cir. 1982) . . . . 11 United States v. Eng, 951 F.2d 461 (2d Cir. 1991) . . . . 10, 11 United States v. $40,877.59 in United States Currency, 32 F.3d 1151 (7th Cir. 1994) . . . . 11, 12 United States v. Michelle's Lounge, 39 F.3d 684 (7th Cir. 1994) . . . . 11 United States v. One Parcel of Real Estate at 7707 S.W. 74th Lane, 868 F.2d 1214 (11th Cir. 1989) . . . . 10 United States v. Page, 808 F.2d 723 (10th Cir.), cert. denied, 482 U.S. 918 (1987) . . . . 15 United States v. Pole No. 3172, Hopkinton, 852 F.2d 636 (1st Cir. 1988) . . . . 11 United States v. Sharpe, 470 U.S. 675 (1985) . . . . 9 United States v. Timbers Preserve, Routt County, 999 F.2d 452 (10th Cir. 1993) . . . . 10 United States v. Williams, 504 U.S. 36 (1992) . . . . 13, 14, 15 United States ex rel. Bailey v. United States Commanding Officer, 496 F.2d 324 (1st Cir. 1974) . . . . 9, 10 Constitution, statutes and rules: U.S. Const. Amend. V (Double Jeopardy Clause) . . . . 7 21 U.S.C. 881(a)(6) . . . . 3 21 U.S.C. 881(a)(7) . . . . 3 Sup. Ct. R. 14.1(a) . . . . 18 Fed. R. App. P. 28(j) . . . . 14 Fed. R. Civ. P. 56 . . . . 7 ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1995 No. 95-173 BRIAN J. DEGEN, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals (Pet. App, la- 16a) is reported at 47 F.3d 1511. The opinion of the district court (Pet. App. 17a-26a) is reported at 755 F. Supp. 308. JURISDICTION The judgment of the court of appeals was entered on February 10, 1995. A petition for rehearing was denied on May 5, 1995. Pet. App. 38a-39a. The petition for a writ of certiorari was filed on July 28, 1995. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). (1) ---------------------------------------- Page Break ---------------------------------------- 2 STATEMENT In October 1989, petitioner was indicted before the United States' District Court for the District of Nevada on charges arising from his alleged leader- ship, over many years, of a major marijuana traffick- ing operation. On the same day, the government filed a civil forfeiture action in the same federal district court against various properties allegedly used to facilitate, or traceable to the proceeds of, the drug offenses charged in the criminal indictment. Peti- tioner and his wife answered the civil complaint and claimed a substantial amount of the property. Peti- tioner failed, however, to make an appearance to answer the criminal charges against him. Accord- ingly, the government moved to dismiss petitioner's claims in the forfeiture proceeding on the ground that petitioner was a fugitive from justice in the related criminal prosecution. The district court granted that motion, later granted summary judgment against petitioner's wife, and entered an order of forfeiture. The court of appeals affirmed. Pet. App. 1a-16a. 1. Petitioner was born in California in 1947, and he lived there and in Nevada and Hawaii until sometime in 1987 or 1988. See, e.g., C.A. App. 75-88, 289-290, 296- 297, 393-394, 401. In October 1989, a grand jury re- turned an indictment against petitioner before the United States District Court for the District of Nevada, charging that he had been one of three leaders of a major marijuana trafficking conspiracy, with activities beginning when petitioner' was in college and extending over some 20 years. Pet. App. 2a, 27a; C.A. App. 72,75,391,394. On the same day, the government filed this action in the United States District Court for the same district, seeking civil ---------------------------------------- Page Break ---------------------------------------- 3 forfeiture of a variety of real and personal property in Nevada, California, and Hawaii on the ground that it had been used to facilitate, or was traceable to the proceeds of, the drug offenses charged in the indict- ment. 1. Pet. App, 27a; see 21 U.S.C. 881(a)(6) and (7). Petitioner's" father was born in Switzerland (C.A. App. 401), and petitioner is therefore recognized as a Swiss citizen as well as a citizen of the United States. See Pet. App. 2a; C.A. App. 394. After author- ities had arrested one of petitioner's co-conspirators and begun an investigation into petitioner's own activities (see C.A. App. 87-88), but before the grand jury returned its indictment, petitioner left the United States and resettled in Switzerland. Pet. App. 2a. The extradition treaty between Switzerland and the United States does not require either party to surrender its own nationals, and in the five years since his indictment petitioner has neither returned voluntarily to this country to face the charges against him, nor made any good faith effort to submit to the criminal jurisdiction of the district court. Pet. App. 2a-3a. In April 1990, however, counsel representing peti- tioner and his wife did file answers and claims on their behalf in the civil forfeiture action. Pet. App. 27a. The government moved to strike their claims and for summary judgment, arguing that petitioner should not be heard in the civil forfeiture action while ___________________(footnotes) 1 The original forfeiture complaint included a wide array of property associated with the criminal enterprise. Petitioner and his wife filed claims to much, but not all, of that property. The properties they claimed were subsequently severed from the original proceeding and made the subject of the present separate proceeding. Pet. App. 2a. ---------------------------------------- Page Break ---------------------------------------- 4 he remained a fugitive with respect to the criminal case, and that his wife's claims were entirely deriva- tive of his own. Pet. App. 3a, 27a C.A. App. 380-390. The district court granted the government's mo- tion with respect to petitioner. Pet. App. 17a-26a. The court first determined that petitioner's refusal to return to face known charges against him was suffi- cient to render him a fugitive. Id. at 18a. It also re- cognized that the Ninth Circuit had previously applied the fugitive disentitlement doctrine under similar circumstances to preclude claims made by a fugitive's successor in interest in a civil forfeiture proceeding. Id. at. 19a. The court then considered the policies and prece- dents supporting application of the doctrine. Pet. App. 20a-26a. In particular, the court observed that petitioner "want[ed] [the] court to listen to his claims in the forfeiture proceeding without subjecting him- self to [the] court's jurisdiction in the criminal matter," and could therefore be said to be "flout[ing] [the] court's power to prosecute him" (id. at 21a); that the criminal and civil proceedings in this case were closely related (id. at 22a-23a); and that petitioner was "responsible for his own plight," because he could avoid disentitlement at any time by returning and submitting to the jurisdiction of the court id at 23a- 24a). The court noted that the government, rather than petitioner, had initiated the forfeiture pro- ceedings, and that in this case petitioner became a fugitive before he had been convicted on the related criminal charges. Id. at 24a-25a. On balance, however, the court concluded that "in this case, the disentitlement doctrine bar[red] [petitioner] from defending the civil forfeiture action in absentia." Id. at 25a-26a. ---------------------------------------- Page Break ---------------------------------------- 5 The district court initially denied the government's motion for summary judgment against petitioner's wife, Karyn Degen. Pet. App. 27a-29a. The court noted that at least two parcels of real estate at issue were community property, and it identified factual issues concerning the community status of the other property at issue and the source and nature of the funds used to acquire it. Id. at 28a. In December 1992-after more than two years of pre-trial proceed- ings (see id. at 2a)-the government again moved for summary judgment against Karyn Degen. Id. at 3a. The motion was accompanied by affidavits from three of petitioner's former associates, including two major participants in his marijuana smuggling operations. Ibid.; C.A. App. 67-106. Those affidavits detailed many of petitioner's illegal activities, revealed the sub- stantial amounts of money that petitioner derived from those activities over the years, and alleged that petitioner had had no significant income from legiti- mate sources during the long period covered by the criminal indictment. Pet. App. 3a. Karyn Degen obtained numerous extensions of the time to respond to the government's motion, and in February 1993 obtained an order from the district court giving her access to all relevant documents and reopening discovery for an additional 60 days. Pet. App. 3a; C.A. App. 40-41. She never filed a response, however, even after the district court sua sponte granted two further extensions of time, accompanied by warnings that failure to respond would result in the entry of a default judgment. C.A. App. 17-18, 39. On June 23, 1993, the court granted the government's motion for summary judgment, and on August 17 it entered a final order of forfeiture. Pet. App. 30a-37a, ---------------------------------------- Page Break ---------------------------------------- 6 2. The court of appeals affirmed. Pet. App. 1a-16a. The court first noted that it and other courts have applied the disentitlement doctrine in civil cases, and particularly in forfeiture proceedings, that are re- lated to the criminal proceedings from which the disentitled party is a fugitive. Id. at 4a. The court observed that it had not previously applied the doctrine in a case in which the disentitled party had fled before he had actually been convicted of a crime. Id. at 5a. The court found that distinction immaterial, however, agreeing with the district court that petitioner's choice not to return to face the charges against him demonstrated the sort of disrespect for that court's criminal jurisdiction that the disentitle- ment doctrine was intended to address. Ibid. The court of appeals rejected (Pet. App. 6a-7a) petitioner's argument that the disentitlement doc- trine should not apply in his case because, he alleged, in November 1992 he was arrested by Swiss authori- ties "at the behest of the United States government, which wished to `transfer' its prosecution to Switzer- land because extradition was impossible," Id. at 6a. The court observed that the only evidence of such an arrest in the district court record was an affidavit of Karyn Degen's counsel containing "virtually no factual statements based on personal knowledge." The court also noted that two letters purportedly sent to Swiss authorities by the Department of Justice's Office of International Affairs, and attached to petitioner's appellate reply brief, had not been authenticated and constituted "an inappropriate attempt to supplement the factual record on appeal." Ibid. The court thus found "no credible evidence properly in the record * * * to support [petitioner's] allegations of government involvement in his arrest ---------------------------------------- Page Break ---------------------------------------- 7 and prosecution in Switzerland" (id. at 7a). In any event, the court indicated that previous cases "suggest[ed] that the fact that a fugitive is incarcerated in a foreign jurisdiction does not preclude application of the fugitive disentitlement doctrine." Ibid. The court concluded by noting that "[e]ven assuming the situation would be different if [petitioner] could prove that the United States government was somehow involved in his arrest in Switzerland, we find that he has not so proven." Ibid. The court of appeals found one error in the district court's opinion (Pet. App. 7a-8a): that court had erred in holding (id. at 26a) that it had no discretion about whether to apply the disentitlement doctrine in the particular case before it. Rather, "the doctrine is discretionary, not mandatory." Id, at 8a. Because petitioner did not argue that issue on appeal, however, the court of appeals deemed it to be waived. Ibid. The court also denied a motion, filed by petitioners shortly before oral argument, seeking to raise issues under the Double Jeopardy Clause. Pet. App. 15a-16a. The court of appeals also affirmed the entry of sum- mary judgment against Karyn Degen. Pet. App. 8a- 16a. After reviewing the procedural history in detail (id. at 9a-10a), the court held (id. at 10a-12a) that the district court's entry of a default judgment was a proper application of a valid local rule so long as the government's motion, on its face, satisfied the stand- ards of Rule 56 of the Federal Rules of Civil Procedure by demonstrating that there was no genuine issue of material fact and that the govern- ment was entitled to judgment as a matter of law. After reviewing the record, the court of appeals held that the affidavits submitted with the government's second summary judgment motion, if believed, estab- ---------------------------------------- Page Break ---------------------------------------- 8 lished that petitioner "earned enormous amounts of money from illegal narcotics trafficking and had virtually no legitimate income," and that that show- ing was sufficient to establish probable cause for the forfeiture. Pet. App. 12a. Because "the government's papers were sufficient and on their face revealed no factual issue" (id. at 13a) and because Karyn, despite fully adequate opportunities to develop and present opposing evidence, had failed to respond, the district court did not abuse its discretion in granting sum- mary judgment against her. Id. at 13a-14a. 2. ARGUMENT The court of appeals correctly held that the district court could refuse to entertain petitioner's claims in this civil forfeiture proceeding so long as petitioner refused to submit to the court's jurisdiction in a related criminal proceeding. That application of the fugitive disentitlement doctrine accords with de- cisions in several other circuits. While those hold- ings conflict with the position of at least one other court of appeals, this case is not a suitable vehicle for this Court to address the issue. 1. In this Court, petitioner argues primarily that the fugitive disentitlement doctrine may not be applied at all in the context of a civil forfeiture action. This Court has consistently held, however, that a defendant's status as a fugitive "disentitles [him] to call upon the resources of the Court for the deter- mination of his claims." Molinaro v. New Jersey, 396 U.S. 365, 366 (1970); see Ortega-Rodriguez v. United ___________________(footnotes) 2 Karyn Degen is not a party to her husband's petition, and the district court's order of forfeiture has therefore become final with respect to her interest in any of the property at issue. ---------------------------------------- Page Break ---------------------------------------- 9 States, 113 S. Ct. 1199, 1203-1204 (1993); Estelle v. Dorrough, 420 U.S. 534, 537 (1975); Bonahan v. Nebraska, 125 U.S. 692 (1887); Smith v. United States, 94 U.S. 97 (1876); see also United States v. Sharpe, 470 U.S. 675, 681 n.2 (1985); id. at 721-723 (Stevens, J., dissenting). This "longstanding and established principle of American law" (Dorrough, 420 U.S. at 537) is based largely on the equitable principle that a litigant should not be entitled to invoke the protective processes of the law while simultaneously flouting its authority as a fugitive from justice. See, e.g., Ortega-Rodriguez, 113 S. Ct. at 1206; United States ex rel. Bailey v. United States Commanding Officer, 496 F.2d 324, 326 (1st Cir. 1974). 3. The courts of appeals have applied the Molinaro disentitlement doctrine to bar a wide variety of civil claims by fugitives from criminal justice. See, e.g., In ___________________(footnotes) 3 This court has given a number of rationales for the fugi- tive disentitlement rule. First, the rule is supported by en- forceability concerns. As the Court explained in Smith v. United States, 94 U.S. at 97, it is "clearly within our discretion to refuse to hear a criminal case in error, unless the convicted party, suing out the writ, is where he can be made to respond to any judgment we may render." Second, the rule rests "in part on a 'disentitlement' theory that construes a defendant's flight during the pendency of his appeal as tantamount to waiver or abandonment." Ortega-Rodriguez, 113 S. Ct. at 1204 Third, the rule serves a deterrent function by "discourag[ing] the felony of escape and encourag[ing] voluntary surrenders." Ibid., quoting Estelle v. Dorrough, 420 U.S. at 537. Finally, the Court has indicated that dismissal of a fugitive's appeal "advances an interest in efficient, dignified appellate practice," and thus may be appropriate where flight "operates as an affront to the dignity of the court's proceedings." Ortega- Rodriguez, 113 S. Ct. at 1204-1205, 1207. ---------------------------------------- Page Break ---------------------------------------- 10 re Prevot, 59 F.3d 5562 564-565 (6th Cir. 1995) (collecting cases); Schuster v. United States, 765 F.2d 1047 (llth Cir. 1985) (review of tax assessment); Conforte v. Commissioner, 692 F.2d 587 (9th Cir. 1982)(same); Doyle v. United States Dep't of Justice, 668 F.2d 1365 (D.C. Cir. 1981) (Freedom of Infor- mation Act proceeding), cert. denied, 455 U.S. 1002 (1982); Broadway v. City of Montgomery, 530 F.2d 657 (5th Cir. 1976) (suit for damages and injunctive relief; Bailey, 496 F.2d at 326 (challenge to regulation); see also Conforte v. Commissioner, 459 U.S. 1309, 1312 (1983) (Rehnquist, Circuit Justice) (courts of appeals have applied disentitlement doctrine to civil proceed- ings "on a number of occasions" and the Court has previously denied certiorari in that type of case); but see Daccarett-Ghia v, Commissioner, No. 95-1029 (D.C. Cir. Nov. 28, 1995) (refusing to apply doctrine to dismiss Tax Court proceeding that bore an insuffi- cient connection to the criminal proceeding from which the taxpayer was a fugitive). Like the court below, the Second, Tenth, and Eleventh Circuits have specifically applied the disen- titlement doctrine to preclude fugitives from the criminal judicial process from seeking civil judicial protection against the forfeiture of assets that they acquired in connection with their criminal activities. United States v. Timbers Preserve, Routt County, 999 F.2d 452,453-455 (l0th Cir. 1993); United States v. Eng, 951 F.2d 461, 464-467 (2d Cir. 1991); United States v. One Parcel of Real Estate at 7707 S. W. 74th Lane, 868 F.2d 1214, 1216 ,1217 (11th Cir. 1989). The Third Circuit has indicated that it would apply the doctrine in an appropriate forfeiture case. United States v. Contents of Accounts Numbers 3034504504 & 144-07143 at Merrill, Lynch, Pierce, Fenner & ---------------------------------------- Page Break ---------------------------------------- 11 Smith, Inc., 971 F.2d 974, 986 n.9 (1992), cert. denied, 113 S. Ct. 1580 (1993). In our view, those decisions are correct. As peti- tioner points out (Pet. 9-16), however, the circuits have reached conflicting results concerning the applicability of the disentitlement doctrine in civil forfeiture cases. Compare United States v. $40,877.59 in United States Currency, 32 F.3d 1151 (7th Cir. 1994) and United States v. $83,320 in United States Currency, 682 F.2d 573,576 (6th Cir. 1982) with cases cited in the previous paragraph. 4. While the Sixth Circuit has not had an opportunity to reconsider its brief analysis in $83,320 in light of later decisions in other circuits, see In re Prevot, 59 F.3d at 564-565 & n.10 (collecting cases, noting conflict, and apparently reserving issue), the Seventh Circuit's recent de- cision in $40,877.59 in United States Currency squarely rejects application of the disentitlement doc- trine in any forfeiture case, after full analysis and after acknowledging the contrary position of other courts. 5. See also United States v. Michelle's Lounge, 39 F.3d 684,690 (7th Cir. 1994). ___________________(footnotes) 4 See also United States v. Pole No. 3172, Hopkinton, 852 F.2d 636, 643-644 (lst Cir. 1988) (refusing to apply doctrine where it was unclear whether the claimant's status as a fugitive in the criminal case was related to the civil forfeiture, and because the record did not establish that the claimant had notice of the forfeiture proceeding); but see United States v. Eng, 951 F.2d at 467 (distinguishing Pole No. 3172); United States v. $.40, 877.59 in United States Currency, 32 F.3d at 1153 (same). 5 The Seventh Circuit reasoned that forfeiture proceedings differ from other contexts in which the disentitlement doctrine has been applied, because the government, rather than the fugitive, initiates a forfeiture proceeding. See 32 F.3d at 1154- 1155. The court also expressed concern, on the facts of the ---------------------------------------- Page Break ---------------------------------------- 12 2. As petitioner notes (Pet. 8-9), in our brief last Term opposing review in Alvarez v. United States, No. 94-636, we suggested that the conflict at issue here might call for review by this Court in an appro- priate ease. 94-636 Br. in Opp. at 16. We opposed review in Alvarez, however, because the claims were not properly raised, and because the procedural pos- ture of the case was unduly complicated. Id. at 17. This Court denied certiorari. 115 S. Ct. 1092 (1995). This case is similarly not a suitable vehicle for this Court's review. a. In this case, as in Alvarez, petitioner did not present the court of appeals with any general challenge to the applicability of the fugitive disen- titlement doctrine in civil forfeiture cases until after the panel had rendered its decision. In the short sections of his opening and reply briefs that addressed the disentitlement issue, petitioner argued only that disentitlement was no longer appropriate in this case, because petitioner had allegedly been arrested in Switzerland and was being held and tried there at the behest of the U.S. government. Pet. C.A. Br. 30-32; Pet. C.A. Reply Br. 12-14; see also Pet. App. 6a. The section heading in each brief read only, "Brian Degen is imprisoned in the related criminal case and is no longer a fugitive for purposes of disentitlement." Pet,. C.A,. Br. 30; Pet. C.A. Reply Br. 12. Similarly, at oral argument, petitioner's counsel contended only that, while the district court had "properly" found Degen to be a fugitive when it entered the original dis- entitlement order, that finding should be revisited in ___________________(footnotes) case, with the adequacy of the government's allegations that the claimant was a fugitive and that the funds were subject to forfeiture. Id. at 1156-1157. ---------------------------------------- Page Break ---------------------------------------- 13 light of later developments. 6. It was not until his petition for rehearing that petitioner first urged the court of appeals to hold that the disentitlement doctrine could not be invoked in any civil forfeiture case. Pet. for Reh'g and Sugg. for Reh'g En Banc (filed Mar. 22, 1995) (hereafter Pet. for Reh'g). In the district court, petitioner's initial response to the government's motion to strike his claim identified a conflict of authority over application of the disen- titlement doctrine, and he argued both that the doc- trine should not be applied on the facts of this case, and that it could not constitutionally be applied at all in forfeiture cases. C.A. App. 291-326. Petitioner's failure to raise the more general argument on appeal thus reflected a conscious tactical choice. Consistent with that choice, the court of appeals treated the general applicability of the doctrine in forfeiture cases as settled law, and gave fresh consideration only to the question whether the doctrine could prop- erly be applied to a claimant who had fled the juris- diction before he was actually convicted of a crime. Pet. App. 4a-5a. While this Court undoubtedly has the discretion to review petitioner's current claim in view of the court of appeals' application of the disen- titlement doctrine in his case, see United States v. Williams, 504 U.S. 36, 40-45 (1992), petitioner's abandonment of that issue before the appellate panel, including his failure to call the panel's attention to ___________________(footnotes) 6 The oral argument was recorded by the court of appeals, but it has not been officially transcribed. We obtained a copy of the tape recording from the court of appeals, and we have lodged a copy with the Clerk of this Court. For the Court's convenience, we have also lodged with the Clerk copies of the parties' briefs on appeal. ---------------------------------------- Page Break ---------------------------------------- 14 the Seventh Circuit's recent decision in $40,877.59, counsels against the exercise of that discretion here. 7. There is no reason for a different result simply because petitioner raised the issue in his petition for rehearing and suggestion of rehearing en bane. At that late point in the proceedings, it is unlikely that either the panel or the full court would have con- sidered the issue on the merits. Indeed, the panel had already applied waiver principles in declining to consider another claim that it considered meritor- ious, but that petitioner had not argued on appeal. Pet. App. 8a. Against that background, there is no reason for this Court to accord petitioner review of a claim that he chose not to present to the court of appeals, and which for that reason was not adequately briefed, argued, or considered below. Cf. Gran- financiera, S.A. v. Nordberg, 492 U.S. 33, 39-40 (1989); Williams, 504 U.S. at 44-45 (noting special circumstances). 8. ___________________(footnotes) 7 Petitioner's reply brief in the court of appeals was filed in July 1994, approximately one month before the Seventh Circuit announced its decision in $40,877.59 Oral argument did not take place, however, until December 1994. Before argument, petitioner fried both a motion to supplement the factual record with respect to the. disentitlement issue and a "motion to remand" that sought to raise a new double jeopardy argument in reliance on a Ninth Circuit decision rendered in September 1994. Pet. App. 6a n.1, 15a. The court of appeals denied the motion to supplement the record, but it addressed the double jeopardy argument on the merits. Ibid. Petitioner could have availed himself of the same method of raising an argument based on the decision in $40,877.59 (cf. Fed. R. App. p. 28(j), but he did not. 8 In Williams, the government urged this Court to review the question whether prosecutors must disclose exculpatory evidence to a grand jury, even though the government had ---------------------------------------- Page Break ---------------------------------------- 15 b. Review is also inadvisable in this case because of the existence of a potentially significant issue on which the record is factually and legally incomplete. As we have noted. in the court below petitioner argued that he was no longer a fugitive because, he alleged, he had been arrested and was being tried in Switzerland, at the behest of the United States and on the same charges that he would have faced at trial before the district court. The court of appeals rejected that argument, finding that "[a]ll in all, * * * there [was] no credible evidence properly in the record * * * to support [petitioner's] allegations." Pet. App. 7a. 9. The court further noted that foreign ___________________(footnotes) argued on appeal only that it had met its duty under circuit precedent to disclose such evidence. 504 U.S. at 44-45. In that case, however, the government had not raised the issue in the district court and then abandoned it on appeal, as petitioner did here. Moreover, the government had previously raised in the court of appeals its claim that there was no duty to disclose exculpatory evidence to the grand jury, and had lost on that issue. See United States v. Page, 808 F.2d 723 (l0th Cir.), cert. denied, 482 U.S. 918 (1987). In explaining its grant of certiorari, this Court noted that "[i]t is a permissible exercise of our discretion to undertake review of an important issue expressly decided by a federal court where, although the petitioner did not contest the issue in the case immediately at hand, it did so as a party to the recent proceeding upon which the lower courts relied for their resolution of the issue, and did not concede in the current case the correctness of that precedent." Williams, 504 U.S. at 44-45 (footnote omitted). 9 Petitioner's motion to supplement the record in the court of appeals and his reply brief to the panel included copies of two letters from the Department of Justice's Office of International Affairs to Swiss authorities requesting that the Swiss prosecute petitioner. Pet. App. 6a. The court of appeals discounted those letters because they were not authenticated, constituted hearsay, and were not submitted to the district ---------------------------------------- Page Break ---------------------------------------- 16 incarceration probably would not preclude application of the disentitlement doctrine, and that "[e]ven assuming the situation would be different if [petition- er] could prove that the United States government was somehow involved in his arrest in Switzerland, * * * he has not so proven," Ibid. The court of appeals correctly held that because petitioner failed to raise the issue of his continuing fugitive status before the district court, or to make a proper factual record on the issue, he was not entitled to relief, whatever the merits of a properly presented claim. Although petitioner's counsel had attended proceedings conducted by a Swiss magistrate in Reno, Nevada (see transcript of hearing held 9/13/93, attached to Pet. CM. Mot. to Supplement Rec. (filed Dec. 9, 1994)), and had argued before the district court about the effect of petitioner's arrest and prosecution in Switzerland on discovery issues relating to Karyn Degen's claims (see 2/1/93 Tr. 7-9, 39-44), petitioner never asked the district court to reconsider its disentitlement order on the basis of the developments in Switzerland. He further failed to develop any factual record, such as a copy of the Swiss charges filed against him, to support the claim he eventually made to the court of appeals that the "Swiss arrested [him] at the behest of the United States government, which wished to `transfer' its prosecution to Switzerland because extradition was impossible." Pet. App. 6a. The court of appeals was not required to address that claim in a factual vacuum. We note that. the Swiss government has, in fact, undertaken a prosecution of petitioner, at the request ___________________(footnotes) court. Ibid. The letters are, in fact, authentic. See also note 11, infra. ---------------------------------------- Page Break ---------------------------------------- 17 of the United States and based principally on the conduct that formed the basis for the U.S. indict- ment. 10. The factual and legal issues raised by that development have not been thoroughly explored in the lower courts, and the responsibility for that omission rests primarily with petitioner. 11. Nonetheless, in ___________________(footnotes) 10 petitioner was indicted in October 1989. Pet. App. 17a. The United States first requested that Swiss authorities prose- cute him in February 1990. See Pet. C.A. Rep. Br. Appendix. The district court's disentitlement order was entered on January 4, 1991, Pet. App. 17a. Petitioner was first arrested by Swiss authorities in November, 1992. Id. at 6a. The district court did not enter its final order of forfeiture until June 1993. Id. at 30a. We are informed that the Swiss proceedings have now progressed to the point where a trial might take place in early 1996. 11 Some statements in the government's brief (at 15-18) incorrectly suggested that the Department of Justice played no part at all in instigating the Swiss prosecution, when in fact the Department did request that Swiss authorities prosecute petitioner in Switzerland for the same conduct that underlay his indictment in the United States. For example, the government's brief characterized petitioner's arguments as "an imaginative attempt to blame the United States for [petitioner's] incarceration in Switzerland" (Gov't C.A. Br. 15 n.9), and stated that, "While living in Switzerland, Brian Degen has apparently run afoul of Swiss law. He is incar- cerated and is being prosecuted in Switzerland. He was arrested, in November, 1992, in Switzerland by Swiss authori- ties in connection with a purely Swiss prosecution." Gov't C.A. Br. 16; see also id. at 17-18. The government's brief did not, in our judgment, appropri- ately acknowledge and set forth the full factual background of the government's involvement in urging Swiss authorities to prosecute petitioner. The information before the court of appeals included, however, that which was provided at oral argument. We have reviewed a recording of the argument (see note 6, supra), in which the government's attorney ---------------------------------------- Page Break ---------------------------------------- 18 this Court petitioner suggests for other reasons (see Pet. 23-24) that he may not properly be considered a "fugitive" for disentitlement purposes, and that issue may be "fairly included" in the question presented by the petition (see Sup. Ct. R. 14.l(a). It is also a threshold matter that could have a bearing on the proper application of the fugitive disentitlement doctrine in this or any similar case. It would be inadvisable for this Court to undertake plenary review of the applicability and scope of the fugitive disentitlement doctrine in the civil forfeiture context in a case in which petitioner's conduct of the liti- gation below has left the record factually and legally inadequate with respect to such a potentially significant issue. If further exploration of peti- tioner's fugitive status were warranted, that inquiry would be better conducted in the lower courts in the first instance. ___________________(footnotes) acknowledged that the United States had "encouraged" the Swiss prosecution and had sent Swiss authorities a copy of the U.S. indictment. In our view, the oral argument apprised the panel that the United States had asked the Swiss government to prosecute Degen, and that, in the government's view, the Swiss prosecution constituted an action within the discretion of a foreign sovereign, rather than (as petitioner alleged) a prosecution effectively conducted by the United States itself "under Swiss procedure" (Pet. C.A. Br. 32). The panel nevertheless properly resolved the Swiss prosecution issue against petitioner on the basis of his failure to develop an adequate record for examination of the issue. ---------------------------------------- Page Break ---------------------------------------- 19 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. DREW S. DAYS, III Solicitor General JOHN C. KEENEY Acting Assistant Attorney General LOUIS M. FISCHER Attorney DECEMBER 1995 ---------------------------------------- Page Break ---------------------------------------- No. 95-173 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1995 BRIAN J. DEGEN, PETITIONER v. UNITED STATES OF AMERICA ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE UNITED STATES DREW S. DAYS, III Solicitor General JOHN C. KEENEY Acting Assistant Attorney General MICHAEL R. DREEBEN Deputy Solicitor General MIGUEL A. ESTRADA Assistant to the Solicitor General JOHN P. ELWOOD Attorney Department of Justice Washington, D.C. 20530 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether the district court properly invoked the fugitive disentitlement doctrine to bar petitioner from contesting a civil forfeiture action. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinions below . . . . 1 Jurisdiction . . . . 1 Constitutional provision involved . . . . 1 Statement . . . . 2 Summary of argument . . . . 9 Argument: I. A district court, in a civil forfeiture proceeding, may validly strike the claim of a fugitive from a related criminal case . . . . 12 A. The recognized goals of the fugitive disen- titlement rule support its application in the civil forfeiture setting . . . . 15 B. Striking the claim of a fugitive claimant does not offend the Due Process Clause of the Fifth Amendment . . . . 27 II. The district court properly concluded that peti- tioner was a fugitive from criminal justice . . . . 36 III. Petitioner's claims that he has ceased being a fugitive and that the government's "unclean hands" preclude disentitlement do not warrant relief . . . . 43 Conclusion . . . . 48 TABLE OF AUTHORITIES Cases: Ali v. Sims, 788 F.2d 954 (3d Cir. 1986) . . . . 34 Allen v. Georgia, 166 U.S. 138 (1897 ) . . . . 10, 14, 15, 16, 18 Alpert's Newspaper Delivery, Inc. v. New York Times Co., 876 F.2d 266 (2d Cir. 1989) . . . . 35 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) . . . . 43 Appleyard v. Massachusetts, 203 U. S. 222 (1906) . . . . 38 (III) ---------------------------------------- Page Break ---------------------------------------- IV Cases-Continued: Page Arizona v. California, 460 U.S. 605 (1983) . . . .44 Armstrong v. Manzo, 380 U.S. 545 (1965) . . . . 28 Assarsson, In re, 687 F.2d 1157 (8th Cir. 1982) . . . . 40 Bank of Nova Scotia v. United States, 487 U.S. 250 (1988) . . . . 13, 46, 47 Barker v. Wingo, 407 U.S. 514 (1972) . . . . 19 Baxter v. Palmigiano, 425 U.S. 308 (1976) . . . . 33 Bell v. Wolfish, 441 U.S. 520 (1979) . . . . 21 Biddinger v. Commissioner of Police, 245 U.S. 128 (1917) . . . . 38 Blackmer v. United States, 284 U.S. 421 (1932) . . . . 17 Boddie v. Connecticut, 401 U.S. 371 (1971) . . . . 27, 28 Bonahan v. Nebraska, 125 U.S. 692 (1887) . . . . 15 Branning v. United States, 784 F.2d 361 (Fed. Cir. 1986) . . . . 44 Brookhart v. Janis, 384 U.S. 1 (1966) . . . . 30 Brouse v. United States, 68 F.2d 294 (1st Cir. 1933) . . . . 41 Campbell v. Eastland, 307 F.2d 478 (5th Cir. 1962), cert. denied, 371 U.S. 955 (1963) . . . . 23 Chambers v. NASCO, Inc., 501 U.S. 32 (1991) . . . . 12, 13 Christianson v. Colt Industries Operating Corp., 486 U.S. 800 (1988) . . . . 44 Cobbledick v. United States, 309 U.S. 323 (1940) . . . . 20 Coffin v. United States, 156 U.S. 432 (1895) . . . . 21 Commonwealth v. Andrews, 97 Mass. 543 (1867) . . . . 16 Conforte v. Commissioner, 692 F.2d 587 (9th Cir. 1982), stay denied, 459 U.S. 1309 (1983) . . . . 30 Conte v. Justice, 996 F.2d 1398 (2d Cir. 1993) . . . . 35 Costello v. United States, 350 U.S, 359 (1956) Cotton v. Federal Land Bank of Columbia, 676 F.2d 1368 (11th Cir.), cert. denied, 459 U.S. 1041 (1982) . . . . 35 Crosby v. United States, 506 U.S. 255 (1993) . . . . 19 Dean v. Nelson, 77 U.S. (10 Wall.) 158 (1870) . . . . 31 Diaz v. United States, 223 U.S. 442 (1912) . . . . 19 Donnell v. United States, 229 F.2d 560 (5th Cir. 1956) . . . . 41 Doyle v. Ohio, 426 U.S. 610 (1976) . . . . 24 ---------------------------------------- Page Break ---------------------------------------- V Cases-continued: Page Eisler v. United States, 338 U.S. 189 (1949) . . . . 15 Estelle v. Dorrough, 420 U.S. 534 (1975) . . . . 15 Evitts v. Lucey, 469 U.S. 387 (1985) . . . . 29 Flanagan v. United States, 465 U.S. 259 (1984) . . . . 19, 24 1488, Inc. v. Philsec Inc. Corp., 939 F.2d 1281 (5th Cir. 1991) . . . . 35 G-K Properties v. Redevelopment Agency of City of San Jose, 577 F.2d 645 (9th Cir. 1978) . . . . 32 Goeke v. Branch, 115 S. Ct. 1275 (1995) . . . . 15 Green v. United States, 188 F.2d 48 (D.C. Cir.), cert. denied, 341 U.S. 955 (1951 ) . . . . 40 Griffin v. Illinois, 351 U.S. 12 (1956) . . . . 29 HMG Property Investors, Inc. v. Parque Industrial Rio Canas, Inc., 847 F.2d 908 (lst Cir. 1988) . . . . 32 Hammond Packing Co. v. Arkansas, 212 U.S. 322 (1909) . . . . 28, 32, 33, 34 Harris v. Nelson, 394 U.S. 286 (1969) . . . . 24 Hicks v. Feiock, 485 U.S. 624 (1988) . . . . 31 Hogan v. O'Neill, 255 U.S. 52 (1921) . . . . 38 Hovey v. Elliott, 167 U.S. 409 (1897) . . . . 30, 32 Illinois v. Allen, 397 U.S. 337 (1970) . . . . 24 Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982) . . . . 33 International Union v. Bagwell, 114 S. Ct. 2552 (1994) . . . . 13 Jeffries v. Wood, 75 F.3d 491 (9th Cir. 1996) . . . . 44 Jhirad v. Ferrandina, 536 F.2d 478 (2d Cir.), cert. denied, 429 U.S. 833 (1976) . . . . 37, 41 Johnson v. Yellow Cab Transit Co., 321 U.S. 383 (1944) . . . . 47 Johnson v. Zerbst, 304 U.S. 458 (1938) . . . . 29 Lasere v. Rochereau, 84 U.S. (17 Wall.) 437 (1873) . . . . 31 Last Chance Mining Co. v. Tyler Mining Co., 157 U.S. 683 (1895) . . . . 34 Link v. Wabash R.R., 370 U.S. 626 (1962) . . . . 12, 13, 14 Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982) . . . . 27, 28 Mathews v. Eldridge, 424 U.S. 319 (1976) . . . . 27 ---------------------------------------- Page Break ---------------------------------------- VI Cases-Continued: Page McDonald, In re, 489 U.S. 180 (1989) . . . . 19 McVeigh v. United States, 78 U.S. (11 Wall.) 259 (1871) . . . . 30, 31 Merritt v. Mackey, 932 F.2d 1317 (9th Cir. 1991 ) . . . . 44 Molinaro v. New Jersey, 396 U.S. 365 (1970) . . . . 14, 15, 26 Montana v. United States, 440 U.S. 147 (1979) . . . . 34 Morris v. Jones, 329 U.S. 545 (1947) . . . . 34 Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) . . . . 28 National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639 (1976) . . . . 33 National Union of Marine Cooks & Stewards v. Arnold, 348 U.S. 37 (1954) . . . . 13, 28 Norman v. Young, 422 F.2d 470 (l0th Cir. 1970) . . . . 32 Ortega-Rodriguez v. United States, 113 S. Ct. 1199 (1993) . . . . 14, 15, 16, 18, 19, 20, 25, 45 Peterson, Ex parte, 253 U.S. 300 (1920) . . . . 12 Precision Instrument Mfg. Co. v. Automotive Main- tenance Machinery Co., 324 U.S. 806 (1945) . . . . 42 Prevot, In re, 59 F.3d 556 (6th Cir. 1995), cert. denied, No. 95-7343 (Mar. 4, 1996) . . . . 47 Puerto Rico v. Branstad, 483 U.S. 219 (1987) . . . . 37 Ramu Corp., In re, 903 F.2d 312 (5th Cir. 1990) . . . . 23 Republic Molding Corp. v. B. W. Photo Utilities, 319 F.2d 347 (9th Cir. 1963) . . . . 47 Riehle v. Margolies, 279 U.S. 218 (1929) . . . . 34 Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980) . . . . 12, 13, 33 Roberts v. Reilly, 116 U.S. 80 (1885) . . . . 38 Scklagenhauf v. Holder, 379 U.S. 104 (1964) . . . . 43 Schuster v. United States, 765 F.2d 1047 (11th Cir. 1985) . . . . 20, 41 Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) . . . . 22, 27 Shillitani v. United States, 384 U.S. 364 (1966) . . . . 13 Shore v. Warden, 942 F.2d 1117 (7th Cir. 1991), cert. denied, 504 U.S. 922 (1992) . . . . 44 SMA Life Assurance Co. v. Sanchez-Pica, 960 F.2d 274 (lst Cir.), cert. denied, 506 U.S. 872 (1992 ) . . . . 34 ---------------------------------------- Page Break ---------------------------------------- VII Cases-Continued: Page Smith v. United States, 254 F.2d 865 (6th Cir. 1958) . . . . 35 Smith v. United States, 94 U.S. 97 (1876) . . . . 14, 15, 16 Societe Internationale v. Rogers, 357 U.S. 197 (1958) . . . . 18, 31, 32 Societe Nationale Industrielle Aerospatiale v. United States District Court, 482 U.S. 522 (1987) . . . . 17 Sondel v. Northwest Airlines, Inc., 56 F.3d 934 (8th Cir. 1995) . . . . 35 South Carolina v. Bailey, 289 U.S. 412 (1933 ) . . . . 37-38 Sparks Nugget, Inc. v. Commissioner, 458 F.2d 631 (9th Cir. 1972), cert. denied, 410 U.S. 928 (1973) . . . . 35 Strassheim v. Daily, 221 U.S. 280 (1911) . . . . 38 Streep v. United States, 160 U.S. 128 (1895) . . . . 39 Sullivan v. Louisiana., 113 S. Ct. 2078 (1993) . . . . 30 Taylor v. Illinois, 484 U.S. 400 (1988) . . . . 25, 33 Taylor v. United States, 414 U.S. 17 (1973) . . . . 29 Thomas v. Arn, 474 U.S. 140 (1985) . . . . 13 United States v. A Parcel Realty Commonly Known as 4808 S. Winchester, No. 88 C 1312, 1988 WL 107346 (N.D. Ill. Oct. 7, 1988) . . . . 23 United States v. Ballesteros-Cordova, 586 F.2d 1321 (9th Cir. 1978) . . . . 5 United States v. Catino, 735 F.2d 718 (2d Cir.), cert. denied, 469 U.S. 855 (1984) . . . . 40 United States v. Certain Real Property, 986 F.2d 990 (6th Cir. 1993) . . . . 16 United States v. Contents of Accounts Nos. 3034504504 and 144-07143, 971 F.2d 974 (3d Cir. 1992), cert. denied, 507 U.S. 985 (1993) . . . . 14 United States v. Durcan, 539 F.2d 29 (9th Cir. 1976) . . . . 42 United States v. $8,850, 461 U.S. 555 (1983) . . . . 24 United States v. $83,320, 682 F.2d 573 (6th Cir. 1982) . . . . 15 United States v. Eng, 951 F.2d 461 (2d Cir. 1991) . . . . 14 United States v. $40,877.59, 32 F.3d 1151 (7th Cir. 1994) . . . . 15, 26 ---------------------------------------- Page Break ---------------------------------------- VIII Cases -Continued: Page United States v. $45,940, 739 F.2d 792 (2d Cir. 1984) . . . . 14 United States v. Fowlie, 24 F.3d 1070 (9th Cir. 1994), cert. denied, 115 S. Ct. 742 (1995) . . . . 40 United States v. Gagnon, 470 U.S. 522 (1985) . . . . 29 United States v. Gonsalves, 675 F.2d 1050 (9th Cir.), cert. denied, 459 U.S. 837 (1982) . . . . 4-5 United States v. Hasting, 461 U.S. 499 (1983) . . . . 47 United States v. Hudson, 11 U.S. (7 Cranch) 32 (1812) . . . . 12 United States v. Kras, 409 U.S. 434 (1973) . . . . 28 United States v. Leasehold Interests in 118 Ave. D, 754 F. SUPP: 282 (E.D.N.Y. 1990) . . . . 23 United States v. MacDonald, 435 U.S. 850 (1978) . . . . 19 United States v. Marshall, 856 F.2d 896 (7th Cir. 1988) . . . . 41 United States v. Mellon Bank, N.A., 545 F.2d 869 (3d Cir. 1976) . . . . 23 United States v. Michelle's Lounge, No. 91 C 5733, 1992 WL 194652 (N.D. 111. Aug. 6, 1992), appeal dismissed in part, vacated and remanded in part, 39 F.3d 684. (7th Cir. 1994) . . . . 23 United States. v. Morgan, 922 F.2d 1495 (l0th Cir.), cert. denied, 501 U.S. 1207 (1991) . . . . 40-41 United States v. Morrison, 449 U.S. 361 (1981) . . . . 19 United States v. $151,388, 751 F. Supp. 547 (E.D.N.C. 1990) . . . . 23 United States v. $129,374, 769 F.2d 583 (9th Cir. 1985), cert. denied, 474 U.S. 1086 (1986) . . . . 5,14 United States v. One Parcel of Real Estate, 868 F.2d 1214 (11th Cir. 1989) . . . . 14 United States v. One Single Family Residence Located at 2820 Taft St., 710 F. Supp. 1351 (S.D. Fla. 1989) . . . . 23 United States v. Payner, 447 U.S. 727 (1980 ) . . . . 46 United States v. Pole No. 3172, 852 F.2d 636 (1st Cir. 1988) . . . . 15 United States v. Premises & Real Property at 297 Hawley St., 727 F. Supp. 90 (W.D.N.Y. 1990) . . . . 23 ---------------------------------------- Page Break ---------------------------------------- IX Cases-Continued: Page United States v. Premises Known as 717 S. Wood- ward St., 2 F.3d 529 (3d Cir. 1993) . . . . 16 United States v. Premises Known as 318 S. Third St., 988 F.2d 822 (8th Cir. 1993) . . . . 35 United States v. Ramos, 27 F.3d 65 (3d Cir. 1994) . . . . 21 United States v. Route 2, Box 472, 60 F.3d 1523 (11th Cir. 1995) . . . . 16 United States v. Rylander, 460 U.S. 752 (1983) . . . . 31 United States v. Sanchez, 35 F.3d 673 (2d Cir. 1994), cert. denied, 115 S. Ct. 1404 (1995) . . . . 44 United States v. Sells Engineering, Inc., 463 U.S. 418 (1983) . . . . 20 United States v. Sharpe, 470 U.S. 675 (1985) . . . . 25, 26, 29 Cir. 1983) . . . . 40 United States v. Singleton, 702 F.2d 1159 (D.C. Cir. 1983) . . . . 40 United Mutes v. Spillane, 913 F.2d 1079 (4th Cir. 1990) . . . . 37, 42 United States v. Timbers Preserve, 999 F.2d 452 (l0th Cir. 1993) . . . . 14 United States v. Wazney, 529 F.2d 1287 (9th Cir. 1976) . . . . 5, 40 Vasquez v. Hillery, 474 U.S. 254 (1986) . . . . 24 Willy v. Coastal Corp., 503 U.S. 131 (1992) . . . . 29 Windsor v. McVeigh, 93 U.S. 274 (1876) . . . . 28, 30, 31 Wyoming v. Oklahoma, 502 U.S. 437 (1992 ) . . . . 44 Zafiro v. United States, 113 S. Ct. 933 (1993) . . . . 20 Zebrowski v. Hanna, 973 F.2d 1001 (1st Cir. 1992) . . . . 13 Constitution, statutes and rules: U.S. Const. : Art. I, 9, C1. 3 (Ex Post Facto Clause) . . . . 35 Art. II, 2, Cl. 2 . . . . 38 Art. IV, 2, Cl. 2 . . . . 37, 38 Amend. IV . . . . 26 Amend. V . . . . 14, 27 Due Process Clause . . . . 11, 14, 27, 30 Double Jeopardy Clause . . . . 8 ---------------------------------------- Page Break ---------------------------------------- X Constitution, statutes and rules-Continued: Page Amend. VI . . . . 30 Amend. XIV, 1 . . . . 17 Gun Control Act of 1968, 18 U.S.C. 921 (a) (15) . . . . 42 Jencks Act, 18 U.S.C. 3500 (a) . . . . 21, 22 18 U.S.C. 662 (1946) . . . . 37 18 U.S.C. 981 (g) . . . . 22 18 U.S.C. 1071 . . . . 41 18 U.S.C. 1073 . . . . 41 18 U.S.C. 3181 note . . . . 38 18 U.S.C. 3182 . . . . 37 18 U.S.C. 3290 . . . . 39, 40, 41 19 U.S.C. 1305 (d) . . . . 22 19 U.S.C. 1621 . . . . 35 21 U.S.C. 881 (a) (6) . . . . 2, 35 21 U.S.C. 881 (a) (7) . . . . 35 21 U.S.C. 881 (i) . . . . 22, 23 21 U.S.C. 885 (a) (1) . . . . 16 28 U.S.C. 1783 (a) . . . . 18 28 U.S.C. 1784 (d) . . . . 18 Rev. Stat. 5278 (1878) . . . . 37, 38 Code Penale suisse art. 271 . . . . 6 Fed. R. Civ. P.: Rules 26-37 . . . . 27 Rule 26(b) (1) . . . . 22 Supp. Rule C (3) advisory committee's note Fed. R. Crim. P: Rule 16 . . . . 21 Rule 16 (a) (2) . . . . 21 Miscellaneous: 2 M. Cherif Bassiouni, International Extradition: United States Law & Practice (2d ed. 1987) . . . . 38 Black's Law Dictionary (6th ed. 1990) . . . . 42 Ron Champoux, Real Property Forfeiture Under Federal Drug Laws: Does the Punishment Out- weigh the Crime?, 20 Hastings Const. L.Q. 247 (1992) . . . . 35 Developments in the Law-Discovery, 74 Harv. L. Rev. 940 (1961) . . . . 21 ---------------------------------------- Page Break ---------------------------------------- XI Miscellaneous-continued: Page 1 Samuel Johnson, A Dictionary of the English Language (1755) . . . . 36 Daniel J. Meador, Inherent Judicial Authority in the Conduct of Civil Litigation, 73 Tex. L. Rev. 1805 (1995) . . . . 13 4A James Wm. Moore, Moore's Federal Practice (1995) . . . . 33 S. Rep. No. 225, 98th Cong., 1st Sess. (1983 ) . . . . 22, 23 1 David B. Smith, Prosecution and Defense of Forfeiture Cases (1995) . . . . 35, 36 Andre M. Surena International Drug Traffic, 84 Am. Soc'y Int'l L. 1 (1991) . . . . 17 U.S. Attorney's Manual (Oct. 1988) . . . . 17 Webster's Third New International Dictionary (1986) . . . . 36 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1995 No. 95-173 BRIAN J. DEGEN, PETITIONER v. UNITED STATES OF AMERICA ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE UNITED STATES OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-16a) is reported at 47 F.3d 1511. The opinion of the district court (Pet. App. 17a-26a) is reported at 755 F. Supp. 308. JURISDICTION The judgment of the court of appeals was entered on February 10, 1995. A petition for rehearing was denied on May 5, 1995. Pet. App. 38a-39a. The petition for a writ of certiorari was filed on July 28, 1995, and was granted by the Court on January 12, 1996 (J.A. 183). The jurisdiction of this Court rests on 28 U.S.C. 1254(1). CONSTITUTIONAL PROVISION INVOLVED The Fifth Amendment to the Constitution provides, in relevant part: "No person shall be * * * deprived of life, liberty, or property, without due process of law * * *." (1) ---------------------------------------- Page Break ---------------------------------------- 2 STATEMENT In October 1989, the United States District Court for the District of Nevada unsealed an indictment charging petitioner with the leadership, over many years, of a major marijuana trafficking operation. On the same day, that court unsealed a complaint tiled by the government in a civil forfeiture action against various properties al- legedly used to facilitate, or traceable to the proceeds of, the drug offenses charged in the criminal indictment. Petitioner and his wife answered the civil complaint and claimed a substantial amount of the property. Petitioner failed, however, to appear to answer the criminal charges against him. Because petitioner was a fugitive from crim- inal justice, the district court dismissed his claims in the forfeiture action. The court later granted summary judg- ment against petitioner's wife, and entered an order of forfeiture. The court of appeals affirmed. Pet. App. 1a- 16a. 1. Petitioner was born in California in 1947, and he lived there and in Nevada and Hawaii until sometime in 1988. See, e.g., J.A. 115, 160-161; Pet. C.A. App. 297. On October 25, 1989, the United States District Court for the District of Nevada unsealed an indictment charg- ing that petitioner had been one of the leaders of a major marijuana trafficking organization founded when peti- tioner was in college and that operated for more than 20 years until approximately 1986. On the same day, that court unsealed the government's complaint in this in rem action, which sought forfeiture under 21 U.S.C. 881(a)(6) and (7) of real and personal property in Nevada, Cali- fornia, and Hawaii. The complaint was supported by the affidavit of Dennis A. Cameron, a Special Agent with the Drug Enforcement Administration, who attested that the property had been used to facilitate, or was traceable to the proceeds of, the drug offenses charged in the indictment. J.A. 10-28. Cameron's affidavit recounted that petitioner and his co- ---------------------------------------- Page Break ---------------------------------------- 3 conspirators had smuggled tens of thousands of pounds of marijuana from Mexico and Thailand and distributed it in Northern California and Nevada between 1969 and 1986. See, e.g., J.A. 12-17, 23-24. Cameron's affidavit also noted that an informant had seen petitioner meet with Jurgen Karl Peter Ahrens, a marijuana smuggler, at petitioner's Lake Tahoe home, and had seen Ahrens take delivery of a suitcase full of U.S. currency that had been stored in the wine cellar there. J.A. 17. The affidavit further stated that petitioner had bought real estate in Hawaii in the name of K.E.S., a Cayman Islands corpora- tion he owned, and had sold property to a Cayman Is- lands corporation owned by another drug smuggler, Mar- cus Zybach, in a transaction brokered by the sister of a third smuggler (and petitioner's business partner), Ciro Mancuso. J.A. 18. Cameron's affidavit alleged that, al- though petitioner's accounting records indicated a net worth of more than $2.1 million, petitioner's total ad- justed gross income for the period 1979 to 1986 was less than $250,000. J.A. 20-21, 23. 1. Petitioner's father was born in Switzerland (Pet. C.A. App. 401), and petitioner is therefore recognized as a Swiss citizen as well as a citizen of the United States. See Pet. App. 2a; J.A. 54-55, 59. After authorities had arrested one of petitioner's co-conspirators and started investigating petitioner's own activities (see J.A. 160), but before the grand jury returned its indictment, peti- ___________________(footnotes) 1 The original forfeiture complaint was filed under seal on July 13, 1989, the same day the original indictment was returned (under seal). An amended complaint was filed on October 24, 1989 (J.A. 1), the same day the grand jury returned the superseding indictment against petitioner. J.A. 54. The complaints sought forfeiture of a wide array of property associated with, or derived f rem, the activi- ties of the criminal enterprise, not all of which was claimed by petitioner and his wife. The properties claimed by petitioner and his wife were severed and made the subject of the present sepa- rate proceeding. Pet. App. 2a; J.A. 45. ---------------------------------------- Page Break ---------------------------------------- 4 tioner left the United States and settled in Switzerland. Pet. App. 2a; J.A. 161. The extradition treaty between Switzerland and the United States does not require either party to surrender its own nationals. In the five years since his indictment, petitioner has neither returned vol- untarily to this country to face the criminal charges against him, nor made any good-faith effort to submit to the criminal jurisdiction of the district court. Pet. App. 2a-3a. In April 1990, however, counsel representing petitioner and his wife did file answers and claims on their behalf in the civil forfeiture action. Pet. App. 27a; J.A. 29-34. The government moved to strike their claims and for sum- mary judgment, arguing that petitioner should not be heard in the civil forfeiture action while he remained a fugitive from the related criminal case, and that his wife's claims were entirely derivative of his own. Pet. App. 3a, 27a; J.A. 42-52. Petitioner filed a response (J.A. 57-87), in which his attorneys described some of petitioner's real estate transactions over the years (J.A. 65-76), and argued that petitioner was not a fugitive because he had not "left the country because of knowledge of a pending prosecution" (J.A. 61 (emphasis added). After hearing argument (Pet. C.A. App. 262), on December 31, 1990, the court granted the government's motion with respect to petitioner (but not with respect to his wife). Pet. App. 17a-26a. 2. In granting the motion, the court noted that "an intent to avoid prosecution (conferring the `fugitive' status) could be inferred" from a person's failure to submit to arrest when he knows he is wanted by police. Pet. App. 18a (citing United States v. Gonsalves, 675 F.2d 1050, ___________________(footnotes) 2 In denying the government's motion as to petitioner's wife, the court noted that at least two parcels of real estate at issue were community property, and it identified factual issues con- cerning the community status of the other property sought by the government and the source and nature of the funds used to acquire it. Pet. App. 28a. ---------------------------------------- Page Break ---------------------------------------- 5 1052 (9th Cir.), cert. denied, 459 U.S. 837 ( 1982); United States v. Ballesteros-Cordova, 586 F.2d 1321, 1323 (9th Cir. 1978); United States v. Wazney, 529 F.2d 1287, 1289 (9th Cir. 1976)). The court accordingly determined that petitioner's refusal to return to face known charges against him was sufficient to render him a fugitive. Pet. App. 18a. The court noted that in United States v. $129,374, 769 F.2d 583 (9th Cir. 1985), cert. denied, 474 U.S. 1086 (1986), the Ninth Circuit had applied the fugitive disen- titlement doctrine in a civil forfeiture case, but had re- served the question whether that doctrine should be ap- plied to a fugitive claimant who had not yet been con- victed in the related criminal case. Pet. App. 19a. After considering the policies and precedents supporting the disentitlement doctrine, id. at 20a-26a, the district court answered that question in the affirmative. The court ob- served that petitioner "want[ed] th[e] court to listen to his claims in the forfeiture proceeding without subjecting himself to th[e] court's jurisdiction in the criminal mat- ter," and was therefore attempting to "flout[] th[e] court's power to prosecute him" (id. at 21a); that the criminal and civil proceedings in this case were closely related (id. at 22a-23a); and that petitioner was "responsible for his own plight," because he could avoid disentitlement at any time by returning and "submit[ting] * * * to the jurisdic- tion of th[e] court" (id. at 23a; see also id. at 24a, 26a). Accordingly, the court concluded that, "in this case, the disentitlement doctrine bar[red] [petitioner] from defend- ing the civil forfeiture action in absentia." Id. at 25a-26a. 2. The district court, after ordering petitioner's claim stricken, retained jurisdiction pending resolution of the claim filed by petitioner's wife. The government noticed a deposition in Nevada of Karyn Degen, but she success- fully moved for a protective order, which required that she be deposed in Switzerland. See Pet. C.A. App. 540. On April 30, 1991, petitioner and his wife noticed their own depositions in Geneva, Switzerland, for May 22 and ---------------------------------------- Page Break ---------------------------------------- 6 23, 1991. Id. at 207-210. In a proposed stipulation that was rejected by the government, petitioner and his wife sought to "limit[] [the] scope" (id. at 200) of the Swiss depositions to certain subjects of their choosing, to pre- clude inquiry into petitioner's income before his marriage, and to limit questioning to legitimate sources of income. 3. See id. at 200-201. The government immediately moved for a protective order to vacate that notice of deposi- tion, noting that permission from Swiss authorities to take the depositions-necessary to avoid criminal liability under Swiss law-could not be obtained on such short notice. Id. at 185-190. See generally Code penale suisse art. 271. The government's motion was granted. Pet. C.A. App. 541. The depositions were cancelled and not rescheduled. See ibid. In December 1992, after more than two years of pre- trial proceedings (see Pet. App. 2a), the government again moved for summary judgment against Karyn Degen. Id. at 3a. The motion was supported by affidavits of three of petitioner's former associates, including two major participants in his marijuana smuggling operations. Ibid.; J.A. 135-161. Those affidavits detailed petitioner's involvement in the smuggling and distribution of consid- erable quantities of marijuana since 1969, revealed the substantial amounts of money that petitioner had derived from those activities over the years, and noted that peti- tioner had had no significant income from legitimate sources during the long period covered by the criminal indictment. Pet. App. 3a; J.A. 135-161. Karyn Degen obtained numerous extensions of time to respond to the ___________________(footnotes) 3 The topics enumerated by the proposed stipulation included only the sets and intent of the parties relevant to the transmutation of petitioner's separate property into community property; the sepa- rate property funds of Karyn Degen used to purchase or improve property; income during their marriage from petitioner's construc- tion business; rental properties and the sale of properties; and loans and gifts from third parties used to purchase or improve property. Pet. C.A. App. 200-201. ---------------------------------------- Page Break ---------------------------------------- 7 government's new motion for summary judgment, and in February 1993 she obtained an order from the district court reopening discovery for an additional 60 days. Pet. App. 3a; Pet. C.A. App. 40-41, 543-544. The district court sua sponte granted two additional extensions of time, which were accompanied by warnings that failure to respond would result in the entry of a default judg- ment, Pet. C.A. App. 17-18, 39; Gov't C.A. Br. 6-7. Karyn Degen never filed a response. Accordingly, on June 23, 1993, the court granted the government's motion for summary judgment. Pet. App. 30a. On August 17, 1993, the court entered a final order of forfeiture vesting in the United States title to the proper- ties claimed by petitioner and his wife. Pet. App. 32a-37a. 3. The court of appeals affirmed. Pet. App. la-16a. The court first noted that it and other courts have applied the disentitlement doctrine in civil cases, including forfei- ture proceedings, that are related to the criminal case from which the disentitled party is a fugitive. Id. at 4a. The court concluded that, as had been true in $129,374, supra, the criminal and civil proceedings against peti- tioner and his property related "directly" to "the same unlawful drug dealing scheme," Pet. App. 4a, and would therefore "satisfy any relatedness test," id. at 5a. The court observed that it had not previously applied the fugi- tive disentitlement doctrine in a case in which the disen- titled party had not yet been convicted of a crime. The court held that distinction immaterial, however, finding that the district court had "correctly concluded * * * in December 1990" that petitioner's choice not to return to face the charges against him, "presumably to avoid arrest on the criminal charges," had rendered him a fugitive and demonstrated the sort of disrespect for that court's criminal jurisdiction that the disentitlement doctrine is intended to address. Ibid. The court rejected (Pet. App. 6a-7a) petitioner's argu- ment that the disentitlement doctrine should not apply ---------------------------------------- Page Break ---------------------------------------- 8 because in November 1992, nearly two years after the district court ordered his claim struck, he was arrested by Swiss authorities, "at the behest of the United States gov- ernment, which wished to `transfer' its prosecution to Switzerland because extradition was impossible." Id. at 6a. The court observed that the only evidence of such an arrest contained in the record was an affidavit of counsel for petitioner and his wife, which contained "virtually no factual statements based on personal knowledge." Ibid. The court also noted that petitioner had moved to supple- ment the record on appeal with two letters that, he rep- resented, had been sent to Swiss authorities by the Depart- ment of Justice's Office of International Affairs, and that were attached to petitioner's reply brief. The court re- jected the motion to supplement the appellate record, explaining that the letters "were never submitted to the district court," and were "unauthenticated and, so far as [the court could] discern, * * * hearsay not subject to any exception. " Id. at 6a & n. 1; see also id. at 7a (noting absence of "credible evidence properly in the record * * * to support [petitioner's] allegations of government involve- ment in his arrest and prosecution in Switzerland"). The court also noted that, "[e]ven putting th[o]se problems aside, petitioner "ha[d] never proffered any supporting evidence or argument explaining the import of the let- ters." Id. at 6a. 4. ___________________(footnotes) 4 The court of appeals found one error in the district court's opinion disposing of petitioner's claim (Pet. App. 7a-8a) : that court had erred in holding (id. at 26a) that it had no discretion about whether to disentitle a claimant in a particular case. Rather, the court noted, "the doctrine is discretionary, not mandatory." Id. at 8a. Because petitioner did not argue that issue on appeal, however, the court found that any claim based on that error was waived. Ibid. The court also rejected as "utterly without merit" a motion, filed by petitioner and his wife shortly before oral argu- ment, that claimed that the civil forfeiture constituted a second punishment purportedly barred by the Double Jeopardy Clause. The court noted that because neither petitioner nor his wife had ---------------------------------------- Page Break ---------------------------------------- 9 The court also affirmed the entry of summary judg- ment against Karyn Degen. Pet. App. 8a-16a. After reviewing the procedural history and, the record in detail id. at 9a-10a, 12a), the court held (id. at 10a-12a) that the district court's entry of a default judgment was a proper application of a facially valid local rule. The court concluded that the affidavits submitted with the government's second summary judgment motion, if be- lieved, established that petitioner "earned enormous amounts of money from illegal narcotics trafficking and had virtually no legitimate income," and that that show- ing was sufficient to establish probable cause for the forfeiture. Id. at 12a. Because "the government's papers were sufficient and on their face revealed no factual issue" (id. at 13a), and because Karyn Degen, despite fully adequate opportunities to develop and present op- posing evidence, had failed to respond, the district court did not abuse its discretion in granting summary judg- ment against her. Id. at 13a-14a. Petitioner's wife did not seek further review in this Court, and the judgment accordingly became final as to her claims. SUMMARY OF ARGUMENT The federal courts possess inherent authority to regu- late their dockets through the enforcement of reasonable rules. A core element of that authority is the power to impose sanctions designed to remedy litigation abuses and to ensure compliance with the orderly process of litiga- tion. A settled expression of that inherent authority is the power of the court to apply the fugitive disentitlement doctrine. That doctrine originated in the practice of an appellate court to dismiss the appeal of a criminal de- fendant who became a fugitive during the pendency of the appeal. The purposes and logic of that doctrine also justify the remedy imposed here: the disentitlement of bean subject to criminal prosecution, the forfeiture action did not implicate double jeopardy issues. Id. at 15a-16a. ---------------------------------------- Page Break ---------------------------------------- 10 petitioner, a fugitive from criminal justice, from present- ing claims in a related civil forfeiture action pending before the same district court. A fugitive's absence threatens the orderly and fair liti- gation of the forfeiture action, and it represents an on- going affront to the dignity of the court. A fugitive who remains outside the reach of the court's processes cannot reliably be made to respond to the court's supervision of discovery or other steps in the litigation; rather, the fugi- tive asserts the authority to dictate to the court the terms on which he will participate in the action. Indeed, peti- tioner's refusal to stand trial on the criminal charges pending against him unmistakably conveys his intention to use his foreign residence as a shield against the au- thority of the district court, and to comply with the court's process only insofar as it benefits him. "[N]o court is bound to submit" to such "contempt of its au- thority" (Allen V. Georgia, 166 U.S. 138, 141 (1897)). It is, particularly unseemly for petitioner, a citizen of the United States (as well as Switzerland), to insist on eluding the grasp of the criminal justice system, while demanding the right to call upon the court's resources in a closely related civil case. That petitioner has not yet been tried and convicted cm the related criminal charges strengthens the court's interest in applying the disentitlement doctrine. Pretrial fugitivity imposes significant burdens on the administration of justice; it impedes speedy trials and wastes judicial resources by preventing the joint trial of co-defendants. Pretrial fugitivity also threatens the integrity of the crimi- nal justice system if a claimant is allowed to participate in a related civil case; it would permit the claimant to use broad civil discovery rules to circumvent established restrictions on criminal discovery, and thereby to probe the extent to which the government's case may be vulner- able to contrived or perjured testimony or a tailored de- fense. No court need countenance the risk that a fugitive, ---------------------------------------- Page Break ---------------------------------------- 11 in the guise of defending the civil action, may strive to defeat his criminal prosecution. The Due Process Clause does not bar disentitlement in this setting. Petitioner has had what that Clause guar- antees him: a reasonable opportunity for a hearing. It is well established that courts may impose reasonable procedural restrictions on the availability of a hearing and may, without violating due process, dismiss a case or enter default judgment for noncompliance with those rules. Requiring that a litigant submit to the court's crimi- nal jurisdiction before he may have a hearing on the merits of a related civil case is a straightforward applica- tion of that principle, and rationally advances the court's interest in orderly procedure by imposing a requirement with which a litigant can readily comply. Indeed, if a criminal defendant may forfeit his right to protect his interest in liberty by assuming fugitive status, he surely may forfeit the lesser interest in defending his property rights. Petitioner advances three alternative arguments for avoiding disentitlement, none of which has merit. First, he argues that as a matter of common parlance and legal usage his refusal to come to this country to meet the criminal charges does not qualify him as a fugitive. That claim is incorrect not only on its own terms, but also as a guide for applying the disentitlement doctrine. A per- son who purposefully remains outside the reach of this country's legal system to avoid a trial on criminal charges is a fugitive in every sense that is relevant to the dis- entitlement doctrine. Second, petitioner argues that he ceased to be a fugi- tive when he was arrested by Swiss authorities, in Switzer- land, at the urging of the United States and based on the charges that underlie the federal criminal indictment. The short answer to that contention is that petitioner never presented any support for it in the district court. The court of appeals properly found it waived. And in any event petitioner has never even claimed that he would ---------------------------------------- Page Break ---------------------------------------- 12 have returned to this country but for the actions of the Swiss government, or that he has made a good-faith at- tempt to do so. Finally, petitioner argues that our litigation of the Swiss prosecution issue in the lower courts was mislead- ing and left the government with unclean hands that dis- qualify it from invoking the equitable doctrine of dis- entitlement. Our misstatements below, however, did not produce the holding of the court of appeals that petitioner waived his claim that the Swiss prosecution ended his fugitive status; that default is solely attributable to peti- tioner. In any event, the unclean hands doctrine should not be applied so as to defeat the public interests pro- moted by disentitlement. Those interests are compelling where, as here, disentitlement prevents a fugitive from exploiting the civil process of a court whose criminal authority he has flouted. Accordingly, the judgment should be affirmed. ARGUMENT I. A DISTRICT COURT, IN A CIVIL FORFEITURE PROCEEDING, MAY VALIDLY STRIKE THE CLAIM OF A FUGITIVE FROM A RELATED CRIM- INAL CASE It is well established that the federal courts possess those inherent powers "which `are necessary to the exer- cise of all others.'" Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 ( 1980) (quoting United States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812)). "These powers are governed not by rule or statute but by the control neces- sarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.'" Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (quoting Link v. Wabash R.R., 370 U.S. 626, 630-631 (1962)); Ex parte Peterson, 253 U.S. 300, 312 (1920). While the exercise of inherent powers is bounded by rights guaranteed by the Constitution, by statutes or ---------------------------------------- Page Break ---------------------------------------- 13 written rules of the court, and by principles of reasonable- ness, see Bank of Nova Scotia v. United States, 487 U.S. 250, 254-255 ( 1988); Thomas v. Arn, 474 U.S. 140. 146-148 ( 1985), those powers constitute "a sizeable reservoir of authority available * * * to manage [courts'] civil dockets aggressively in order to achieve fair results efficiently." Daniel J. Meador, Inherent Judicial Author- ity in the Conduct of Civil Litigation, 73 Tex. L. Rev. 1805, 1819 (1995). The inherent powers include the authority "to compel the appearance and testimony of witnesses," Shillitani v. United States, 384 U.S. 364, 370 (1966), to ensure "compl[iance] with document discovery," International Union v. Bagwell, 114 S. Ct. 2552, 2560 ( 1994), and to "use [the court's] processes to induce compliance with [] supplemental order[s] reasonably issued in aid of execu- tion" of the judgment, National Union of Marine Cooks & Stewards v. Arnold, 348 U.S. 37, 44 ( 1954). Because litigants' acts that "impede the court's ability to adjudicate the proceedings before it * * * touch upon the core justification for" exercise of the courts' inherent powers, Bagwell, 114 S, Ct. at 2560, "the inherent power extends to a full range of litigation abuses," Chambers, 501 U.S. at 46. While "[t]he most prominent of these [inherent powers] is the contempt sanction," Roadway Express, 447 U.S. at 764, "[c]ourts traditionally have broad authority through means other than contempt-such as by striking pleadings, assessing costs, excluding evidence, and enter- ing default judgment-to penalize a party's failure to comply with the rules of conduct governing the litigation process, " Bagwell, 114 S. Ct. at 2560. Similarly, a court can validly dismiss a suit for failure to prosecute if the plaintiff has been dilatory in pursuing his claim, Link, 370 U.S. at 630, or as a "sanction for conduct which abuses the judicial process," Chambers, 501 U.S. at 44- 45; Zebrowski v. Hanna, 973 F.2d 1001, 1006-1007 ( 1st Cir. 1992) (Breyer, C.J.) (collecting cases). ---------------------------------------- Page Break ---------------------------------------- 14 The district court's decision to strike petitioner's claim in the civil forfeiture proceeding. because he was a fugi- tive from a closely related criminal case, was a valid exer- cise of that court's inherent authority to manage its af- fairs "so as to achieve the orderly and expeditious disposi- tion of cases." Link, 370 U.S. at 630-631. A long line of this Court's decisions holds that appellate courts have inherent authority, "[i]n the absence of specific provision to the contrary in the statute under which [the defendant] appeals," Molinaro v. New Jersey, 396 U.S. 365, 366 (1970) (per curiam); see also Ortega-Rodriguez v. United States, 113 S. Ct. 1199, 1203-1204 ( 1993); Smith v. United States, 94 U.S. 97 ( 1876), to dismiss the claims of a criminal fugitive, and that the exercise of that "disentitlement" authority is constitutional. See Estelle v. Dorrough, 420 U.S. 534, 537 ( 1975) (per curiam); Allen v. Georgia, 166 U.S. 138, 140-142 (1897). That is the power at issue here. Because striking the claim of a fugitive claimant in a civil forfeiture proceeding pro- motes the recognized goals of the disentitlement doctrine, and because dismissal of such a claim is consistent with the Due Process Clause of the Fifth Amendment, the court of appeals, in agreement with the majority of courts of appeals to have considered the question, correctly held that the doctrine is applicable in this setting. 5. ___________________(footnotes) 5 The Second, Ninth, Tenth, and Eleventh Circuits have applied the fugitive disentitlement doctrine in the context of in rem forfeiture proceedings. United States v. Timbers Preserve, 999 F.2d 452 (l0th Cir. 1993) ; United States v. Eng, 951 F.2d 461 (2d Cir. 1991) ; United States v. One Parcel of Real Estate, 868 F.2d 1214 (11th Cir. 1989); United States v. $129,974, 769 F.2d 583 (9th Cir. 1985), Cert. denied, 474 U.S. 1086 (1986) ; United States v. $45,940, 739 F.2d 792 (2d Cir. 1984). The Third Circuit, has noted its approval of that application of the rule. United States v. Contents of Accounts Nos. 3034504504 and 144-07143, 971 F.2d 974, 986 n.9 (1992) (dictum), cert. denied, 507 U.S. 986 (1993). The First Circuit, while acknowledging that the doctrine applies in civil cases, refused to apply the doctrine in a ease in which not only was it unclear that the civil forfeiture was related to the ---------------------------------------- Page Break ---------------------------------------- 15 A. The Recognized Goals Of The Fugitive Disentitle- ment Rule Support Its Application In The Civil Forfeiture Setting This Court has articulated a number of related ration- ales that support the "longstanding and established prin- ciple of American law" (Dorrough, 420 U.S. at 537) that a criminal defendant's fugitivity "disentitles [him] to call upon the resources of the Court for the determination of his claims." Molinaro, 396 U.S. at 366; see also Bonahan v. Nebraska, 125 U.S. 692 (1887). First, refusing to hear a fugitive's claims "advances [the courts'] interest in efficient * * * practice" (Ortega-Rodriguez, 113 S. Ct. at 1204-1205; see also Goeke v. Branch, 115 S. Ct. 1275, 1277 (1995) (per curiam)) by permitting orderly and timely appeals, and it ensures that scarce judicial re- sources are not devoted to someone who is not "where he can be made to respond to any judgment [the Court] may render," Smith, 94 U.S. at 97; Bonahan, 125 U.S. at 692; Allen, 166 U.S. at 140; Eisler v. United States, 338 U.S. 189, 190 (1949) (per curiam). Second, the rule reflects the equitable principle that a litigant should not be permitted to invoke the legal process while simul- taneously flouting the court's dignity and authority. See, e.g., Ortega-Rodriguez, 113 S. Ct. at 1206. Third, the rule serves an incentive function by "discourag[ing] the felony of escape and encourag[ing] voluntary surren- ders." Ortega-Rodriguez, 113 S. Ct. at 1204 (quoting Dorrough, 420 U.S. at 537). Finally, the rule rests "in part on a `disentitlement' theory" that construes flight as a waiver of a defendant's right to a procedural mechanism (an appeal) that, though furnished for the vindication of ___________________(footnotes) criminal case but it also appeared that the claimant had no notice of the forfeiture proceeding. United States v. Pole No. 3172, 852 F.2d 636, 643-644 (1988). Only the Sixth and Seventh Circuits have concluded that the doctrine does not apply in civil forfeiture proceedings. United States v. $83,320, 682 F.2d 573, 576 (6th Cir. 1982) ; United States V. $.$40,877.59, 32 F.3d 1151 (7th Cir. 1994). ---------------------------------------- Page Break ---------------------------------------- 16 important constitutional and other rights, is not itself re- quired by the Constitution. Ortega-Rodriguez, 113 S. Ct. at 1204; Allen, 166 U.S. at 141; see also Commonwealth v. Andrews, 97 Mass. 543, 544 (1867). Those interests are significantly advanced by applying the doctrine to strike a claim filed in a civil forfeiture action by a fugi- tive from a related criminal case. 1. A fugitive's absence impairs the orderly and expe- ditious litigation of the civil forfeiture action, and con- stitutes a continuing offense to the dignity of the court. Claimants in civil forfeiture actions often will control the testimonial and documentary evidence most relevant to their contention that, despite the government's showing of probable cause, particular property should not be for- feited. 6. Yet, when the claimant is a fugitive from justice, "he can[not] be made to respond" to orders that the court may enter to test the basis for his contentions, Smith, 94 U.S. at 97, or indeed to control any other as- pect of the litigation. The fugitive, therefore, may com- ply "or not, as he may consider most for his interest." Ibid. These concerns are exacerbated by the severe demands placed on district courts, even under the best of circum- stances, when cases require the collection of evidence abroad 7.-burdens that become intolerable when, as a ___________________(footnotes) 6 In a civil forefeiture proceeding, once the government establishes probable cause to believe that property is forfeitable the burden of proof shifts to the claimants to demonstrate that the property is not forfeitable. E.g., United States v. Premises Known as 717 S. Woodward St., 2 F.3d 529, 531 (3d Cir. 1993); United States v. Certain Real Property, 986 F.2d 990, 995 (6th Cir. 1993). See generally 21 U.S.C. 885 (a)(1). 7 See e.g., Societe Nationale Industrielle Aerospatiale v. United States District Court, 482 U.S. 522, 546 (1987). Collection of evidence overseas is almost always unlawful in the absence of prior approval by the foreign government and, when available by permis- sion or pursuant to treaty obligations, it is far more difficult than ---------------------------------------- Page Break ---------------------------------------- 17 result of a party's fugitivity, a court can have no reason- able expectation of its ability to control the litigation. The claimant's physical absence while seeking to prevent the forfeiture immunizes him from the enforcement of discovery obligations and keeps him beyond the reach of the court's usual processes for supervising discovery and compelling attendance at hearings. For that reason, "the enforceability concern" of the disentitlement doctrine (Pet. Br. 14) supports its invocation in a civil forfeiture action; although the court has control over the rest and therefore may enforce any eventual judgment, the court lacks power to ensure proper development of the record, and thus to protect the integrity of that judgment. Petitioner emphasizes that he is a citizen of Switzerland and asserts that he merely declined to travel to the United States (Br. i, 17, 35). He therefore contends that apply- ing the doctrine against him is inappropriate, because his refusal to meet the criminal charges is not "wrongful'" (Br. 17) and, indeed, his presence in this country could not be "compelled in a civil action even if he were not a fugitive" (Br. 15). Petitioner, however, is also a citizen of the United States. See U.S. Const. Amend. XIV, 1. "[T]he United States possesses the power inherent in sov- ereignty to require the return to this country of a citizen, resident elsewhere, whenever the public interest requires it, and to penalize him in case of refusal." Blackmer v. United States, 284 U.S. 421, 437 (1932). It is beyond doubt that "one of the duties which the citizen owes to his government is to support the administration of justice by attending its courts * * * whenever he is properly summoned." Id. at 438. By virtue of that obligation, the district court could have summoned petitioner to the United States to testify as a witness even in a civil action ___________________(footnotes) domestic evidence gathering (U.S. Attorney's Manual 9-13.510 (Oct. 1988) ) and "invariably takes longer" since " [r]outine tasks * * * requir[e] months to complete." Id. 9-13.514; see also Andre M. Surena, International Drug Traffic, 84 Am. Soc'y Int'1 L. 1, 2 (1991). ---------------------------------------- Page Break ---------------------------------------- 18 in which he had no interest whatsoever. See 28 U.S.C. 1783 (a); see also 28 U.S.C. 1784(d) (failure to appear punishable by contempt fine of up to $100,000 which may be satisfied from any property the witness owns in this country). Even if it were true that petitioner owed his allegiance solely to a foreign state, he is not a hypothetical litigant who appears before the district court in "good faith," Societe Internationale v. Rogers, 357 U.S. 197, 209 ( 1958), and who seeks no "privileges because of [his] foreign citizenship which are not accorded domestic liti- gants in United States courts," id. at 211-212. Petitioner is a fugitive. See pp. 36-43, infra. His refusal to submit to the authority of the district court to try him for his crimes unmistakably conveyed to that court that he would comply with its process only as he saw fit, and that he would use his foreign residence as a shield against any coercive sanctions for noncompliance. Indeed, that mes- sage was confirmed when petitioner consented to being deposed in connection with his wife's claims, but only on condition that his testimony he taken in Switzerland, and be limited to certain topics of his choosing (which did not include his income from drug smuggling and distribu- tion). See Pet. C.A. App. 200-201, 207-210. Petition- er's view that he is entitled to appear before the district court on terms dictated by him constitutes a direct "affront to the dignity of the court's proceedings." Ortega- Rodriguez, 113 S. Ct. at 1207. As this Court observed long ago, "[i]t is much more becoming to its dignity that the court should prescribe the conditions" under which a litigant will be permitted to appear before it, A hen, 166 U.S. at 141, and a fugitive's attempt to have that principle operate in reverse is "a contempt of [the court's] author- ity, to which no court is bound to submit," ibid. 2. Petitioner's status as a fugitive from criminal charges that have not been tried, but that are "directly related" (Pet. App. 4a-5a) to the civil forfeiture action. ---------------------------------------- Page Break ---------------------------------------- 19 increases, rather than eliminates, the court's interest in applying the disentitlement doctrine. The absence of a defendant from a pending criminal case implicates two special concerns. First, pretrial fugitivity imposes sig- nificantly greater burdens on the administration of crim- inal justice than does fugitivity that occurs after trial. Second, a criminal defendant who absconds before his criminal trial, yet seeks to avail himself of the court's broad discovery mechanisms in a related civil case, raises a heightened danger that the court's civil process will be misused. a. Petitioner suggests (Pet. Br. 16 n. 10 ) that his fugi- tive status is at most "an affront only to the criminal proceedings" and not to "the dignity of the civil forfeiture court's proceedings"' (Br. 15) (emphasis omitted). The disentitlement doctrine, however, like other exercises of inherent authority, protects the orderly functioning of the court, see Ortega-Rodriguez, 113 S. Ct. at 1207, not the "dignity" of a particular case. Compare In re McDonald, 489 U.S. 180 ( 1989) (per curiam). By refusing to sub- mit to the criminal jurisdiction of the court, petitioner has completely prevented his prosecution from going forward, see Crosby v. United States, 506 U.S. 255 (1993) (fed- eral criminal trial may not begin in absentia), until such time, if ever, when he "himself [shall] be pleased to per- mit it," Diaz v. United States, 223 U.S. 442, 457 (1912). Petitioner's misconduct in granting himself an indefinite continuance has frustrated the district court's ability to dispense criminal justice and impaired the strong public interest in the speedy trial of indicted defendants, an in- terest that "exists separate from, and at times in opposi- tion to, the interests of the accused." Barker v, Wingo, 407 U.S. 514, 519 (1972); Flanagan v. United States, 465 U.S. 259, 264-265 (1984); see also United States v. MacDonald, 435 U.S. 850, 862 (1978); United States v. Morrison, 449 U.S. 361, 364 (1981) (noting the "necessity for preserving society's interest in the adminis- tration of criminal justice"). ---------------------------------------- Page Break ---------------------------------------- 20 Petitioner's fugitivity also amounts to a self-help sever- ance from his numerous co-defendants. Should he ever be brought to justice, that severance will surely defeat the strong "preference in the federal system for joint trials of defendants who are indicted together" (Zafiro v. United States, 113 S. Ct. 933, 937 (1993)) and will needlessly waste the scarce judicial resources of the very court whose assistance he seeks in the forfeiture action. Under estab- lished principles of the fugitive disentitlement doctrine, the court "ha[d] the authority to defend its own dignity, by sanctioning an act of defiance that occurred solely within its domain." Ortega-Rodriguez, 113 S. Ct. at 1207. There is no reason to overlook those burdens on the court system merely because petitioner, by making himself unavailable, has so far prevented the government from convicting him of any crime. Nor is there reason to credit his expressed doubts about the strength of the government's criminal case, based on the acquittal of a co-defendant. Br. 32 n. 17; id. at 33 n. 18. Petitioner's efforts to avoid being brought to justice are a more telling reflection of his appraisal of the strength of the government's evidence. See Schuster v. United States, 765 F.2d 1047, 1050-1051 (11th Cir. 1985). In any event petitioner has been indicted by a grand jury whose basic function is to "protect[] citizens against un- founded criminal prosecutions" (United States v. Sells Engineering, Inc., 463 U.S. 418, 423 ( 1983)), and that indictment, if valid on its face, "is enough to call for trial of the charge on the merits." Costello v. United States, 350 U.S. 359, 363-364 (1956). Petitioner's claim of innocence cannot be evaluated until and unless he submits to a trial, and "[b]earing the discomfiture and cost of a prosecution for crime even by an innocent person is one of the painful obligations of citizenship." Cobbledick v. United States, 309 U.S. 323, 325 (1940). Our legal sys- tem provides petitioner with ample means for challenging ---------------------------------------- Page Break ---------------------------------------- 21 the government's ability to prove its case. Fugitivity is not one of them. 8. b. The burdens that pretrial fugitivity imposes on the justice system, significant as they are, pale in comparison to the threat that such fugitivity poses to the integrity of the criminal justice system when the fugitive has access to the court's processes in a closely related civil case. In criminal cases, it has long been the policy of the law to limit the availability of discovery to narrow categories of information. See Developments in the Law-Discovery, 74 Harv. L. Rev. 940, 1052 (1961); see also United States v. Ramos, 27 F.3d 65, 67-68 (3d Cir. 1994). That policy minimizes the danger of witness intimidation, ob- struction of justice, and perjury that can easily result when a criminal defendant has access to a roadmap of the pros- ecution's case, a danger that often is too subtle to be controlled successfully on a case-by-case basis. 9. ___________________(footnotes) 8 Amicus Public Citizen argues that application of the disentitle- ment doctrine in civil forfeiture actions "trumps the constitutionally- based presumption of innocence." Br. 8. That presumption has no application to the issue in this case. The Presumption of innocence is a rule of evidence that applies in criminal cases, and on which criminal juries are instructed to ensure that their verdicts are based on proof beyond a reasonable doubt. See, e.g., Bell v. Wolfish, 441 U.S. 520, 532-533 (1979) ; see also Coffin v. United States, 156 U.S. 432, 458-459 (1895) ("[T]he presumption of innocence is a conclusion drawn by the law in favor of the citizen, by virtue whereof, when brought to trial upon a criminal charge, he must be acquitted, unless he is proven to be guilty"). The fugitive disen- titlement doctrine is not premised on any conclusion about guilt, but on the impact on the judicial system of a defendant's refusal to respond to charges. 9 Rule 16 of the Federal Rules of Criminal Procedure explicitly does not permit discovery of "statements made by government wit- nesses or prospective government witnesses except as provided in 18 U.S.C. 3500," more commonly known as the Jencks Act. Fed. R. Crim. P. 16(a) (2). The Jencks Act provides that in criminal cases the statements of government witnesses shall not "be the subject of subpoena, discovery, or inspection until said witness has ---------------------------------------- Page Break ---------------------------------------- 22 In civil cases, by contrast, pretrial discovery is broadly available. Discovery "is not limited to matters that will be admissible at trial so long as the information sought `appears reasonably calculated to lead to the discovery of admissible evidence.'" Seattle Times Co. v. Rhinehart, 467 U.S. 20, 29-30 (1984) (quoting state counterpart to Federal Rule of Civil Procedure 26(b)(1), Indeed, civil discovery is so expansive that "[m]uch of the information that surfaces * * * may be unrelated, or only tangentially related, to the underlying cause of action." 467 U.S. at 33; see id. at 35 (noting "opportunity" of litigants to obtain "incidentally or purposefully" information that can be abused). Congress has recognized the dangers that the availa- bility of civil process entails for related criminal pro- ceedings. It has provided that the government may secure a stay of civil forfeiture proceedings that are related to a criminal prosecution that is pending in federal or state court. See 21 U.S.C. 881 (i) ("The filing of an indict- ment or information alleging a violation of [federal nar- cotics laws], or a violation of State or local law that could have been charged under [federal law], which is also related to a civil forfeiture proceeding under [21 U.S.C. 881] shall, upon motion of the United States and for good cause shown, stay the civil forfeiture proceeding"); see also 18 U.S.C. 981 (g); 19 U.S.C. 1305(d). As Congress recognized in codifying that rule, courts routinely granted such stays even before Section 881 (i) was enacted to prevent a claimant from circumventing the limitations on criminal discovery. See S. Rep. No. 225, 98th Cong., 1st Sess. 215-216 (1983) (footnote omitted) ("Gener- ally, the courts have been willing to grant such stays of civil forfeiture proceedings," since, "[a]bsent such a stay, the government may be compelled in the context of testified on direct examination in the trial of the case." 18 U.S.C. 3500 (a). ---------------------------------------- Page Break ---------------------------------------- 23 the civil forfeiture action to disclose prematurely aspects of its criminal case"); see also id. at 215 n.57 (noting that "the government is, as a general rule, entitled to a stay of discovery in the civil action until disposition of the criminal matter"). 10. When the claimant is a pre- trial fugitive, however, a stay of the civil proceedings pending resolution of the criminal case is not a practical ___________________(footnotes) 10 See also United States v. Mellon Bank, N. A., 545 F.2d 869, 873 (3d Cir. 1976) ; Campbell v. Eastland, 307 F.2d 478, 487 (5th Cir. 1962), cert. denied, 371 U.S. 955 (1963) ; Fed. Supp. R. Civ, P. C (3) advisory committee's note (1985 Amendment) ("[T]he for- feiture hearing could be misused by the defendants [in parallel criminal prosecution to obtain by way of civil discovery informa- tion to which they would not otherwise be entitled"). In keeping with the concerns reflected in the legislative history of Section 881 (i), district courts routinely stay civil forfeiture proceedings on the basis of the government's representation that the related criminal case must be protected from potentially broad civil dis- covery. E.g., United States v. Michelle's Lounge, No. 91 C 5783, 1992 WL 194652, at *5 (N.D. 111. Aug. 6, 1992) ("Conducting civil discovery while the related criminal investigation is continu- ing would compromise that investigation"), appeal dismissed in part, vacated and remanded in part on other grounds, 39 F.3d 684 (7th Cir. 1994) ; United States v. Premises & Real Property at 297 Hawley St., 727 F. Supp. 90, 91 (W.D.N.Y. 1990) (good cause shown where stay necessary to protect criminal case from "poten- tially" broad discovery demands of claimant/defendant) ; United States V. One Single Family Residence Located at 2820 Taft St., 710 F. Supp. 1351, 1352 (S.D. Fla. 1989) (stay granted where "scope of civil discovery could interfere with the criminal prosecu- tion") ; United States v. A Parcel of Realty Commonly Known as 4808 S. Winchester, No. 88 C 1312, 1988 WL 107346, at *2 (N.D. 111. Oct. 7, 1988) (Rovner, J.) (stay justified because "the possi- bility exists that any civil discovery provided * * * could he used by [the defendant/claimant] in the criminal case") ; but see In re Ramu Corp., 903 F.2d 312, 320 (5th Cir. 1990) (more specific "showing of the harm" that the government may suffer is required, and "there must be some weighing of the equities involved") ; United States v. Leasehold Interests in 118 Ave. D, 754 F. Supp. 282, 287 (E.D.N.Y. 1990) (same) ; United States v. $151,388, 751 F. Supp. 547, 550-551 (E.D.N.C. 1990) (invoking four-part stand- ard used for preliminary injunctions). ---------------------------------------- Page Break ---------------------------------------- 24 way of protecting the interests of the criminal process. Indeed, a stay of the civil proceedings until such time as the criminal trial can be held would effectively terminate the civil action in favor of the fugitive claimant-allowing him, by his misconduct, to defeat the government's show- ing of probable cause for forfeiture and thus effectively to thwart two Acts of Congress instead of only one. Thus, if the civil action must proceed and be fully litigated, as proposed by petitioner, a fugitive claimant will be able, even while flouting the judiciary's authority to try him for his crimes, to use the coercive power of the court to conduct the type of "broad-ranging preliminary inquiry" (Harris v. Nelson, 394 U.S. 286, 297 ( 1969)) that "could substantially hamper the criminal proceeding * * * and may provide improper opportunities for [him] to discover the details of * * * [the] pending criminal prosecution" (United States v. $8,850, 461 U.S. 555, 567 (1983)). The fugitive-claimant can then "profit from his own wrong" (Illinois v. Allen, 397 U.S. 337, 345 (1970)) in two ways. First, he postpones his criminal trial, and thus gains the tactical advantages that flow from the possibility that evidence will be lost or that the passage of time will render the prosecution's witnesses "more easily impeachable." Flanagan v. United States, 465 U.S. at 264; see also Vasquez v. Hillery, 474 U.S. 254, 280 (1986) (Powell, J., dissenting). Second, he enlists the court's help in the interim to probe the extent to which the prosecution's case may be undermined by contrived or perjured testimony-enabling him, should he find it advantageous to permit the trial to proceed, "to frustrate the truth-seeking function of [that] trial by presenting [a] tailored defense[] insulated from effective challenge." Doyle v. Ohio, 426 U.S. 610, 617 n.7 (1976). That is plainly a danger that no court is bound to tolerate, "After all, the court * * * has a vital interest in protecting the trial process from the pollution of per- ---------------------------------------- Page Break ---------------------------------------- 25 jured testimony." Taylor v. Illinois, 484 U.S. 400, 417 (1988). Thus, application of the disentitlement doctrine to a civil forfeiture claimant who successfully avoids a related criminal prosecution not only "encourages [his] voluntary surrender[]," Ortega-Rodriguez, 113 S. Ct. at 1204, but also ensures that he will not use the court as an instrument of further wrong. It hardly needs stating that that interest is quite a bit weightier than the concern with "discourag[ing] the felony of escape," ibid., that appellate courts have long invoked to support the dis- entitlement doctrine. The felony of escape gravely affronts the court's dignity, but it does not make the court an unwilling participant in the wrongdoing. That danger of frustrating a closely related criminal case, which cannot proceed to trial and judgment precisely because of the fugitive's absence, justifies the adoption of a "generally applicable rule[] [of disentitlement] to cover [this] spe- cific, recurring situation[]." Ortega-Rodriguez, 113 S. Ct. at 1209 n.23. 11. 3. Relying on United States v. Sharpe, 470 U.S. 675 (1985), petitioner also contends that the fugitive dis- entitlement doctrine may not be invoked when the fugitive appears before the court in "a purely defensive" position. Br. 17-19. That contention is doubly flawed, because (i) Sharpe stands for no such proposition, and (ii) the "purely defensive" label does not accurately describe the role petitioner seeks to play in the district court. The respondents in Sharpe became fugitives after the Court had granted the government's petition for certiorari ___________________(footnotes) 11 The Court need not consider in this case whether circum- stances exist that would justify a court in exercising discretion not to disentitle a pretrial fugitive claimant in a civil forfeiture action, notwithstanding the potential for prejudicing a related criminal case. The court of appeals recognized that the disentitle- ment doctrine permits the exercise of discretion in individual cases, Pet. App. 8a, hut held that petitioner waived any such claim by failing to argue that issue on appeal. Ibid. ---------------------------------------- Page Break ---------------------------------------- 26 to review a judgment reversing their criminal convictions on Fourth Amendment grounds. In ruling for the govern- ment on the Fourth Amendment.. issue, the Court rejected (470 U.S. at 681 n.2) the suggestion of two Justices that the government should prevail instead on the basis of the respondents' fugitivity, i.e., that the judgment should be vacated and the cause remanded for dismissal of the respondents' appeals. See id. at 688 Blackmun, J., con- curring); id. at 721-728 (Stevens, J., dissenting). Sharpe makes clear that a criminal defendant cannot, by abscond- ing, foreclose this Court's review of an important legal issue that the Court agreed to hear on a petition filed by the government. The brief discussion in Sharpe declining to apply the disentitlement doctrine has little or no rele- vance to the very different situation presented in this case: whether a district court may rely on that doctrine to prevent a defendant who has become a fugitive from call- ing upon its resources in a related civil action. 12. In any event, petitioner's description of his posture as "purely defensive" does not comport with the facts. Peti- tioner seeks more than the opportunity to show-i. e., merely point out-to the district court any respect in which the government has failed to meet its threshold burden of establishing probable cause for the forfeiture. There is no question that the government met that burden. See Pet. App. 13a. He seeks instead to raise affirmative claims to dispute the government's right to the properties despite its showing. In aid of that effort, he would "call upon the resources of the [c]ourt" ( Molinaro, 396 U.S. at 366) to compel the production of documents, answers ___________________(footnotes) 12 Nor does Sharpe suggest that the disentitlement doctrine will not be applied "when the fugitive is responding to government action. " Pet. Br. 18 (quoting United States V. $40,877.59, 32 F.3d 1151, 1154 (7th Cir. 1994). The fugitives in Sharpe did not "re- spond" at all in this Court; rather, the Court directed their coun- sel to file an amicus curiae brief in support of the judgment. 470 U.S, at 681 n.2. ---------------------------------------- Page Break ---------------------------------------- 27 to interrogatories, or the deposition testimony of wit- nesses (whether or not they were associated with the government), see Fed. R. Civ. P. 26-37, all of which are purely "a matter of legislative grace" (Seattle Times, 467 U.S. at 32) rather than constitutional right.]' In our view, that extensive use of the district court's resources may not fairly be labeled "purely" defensive. B. Striking The Claim Of A Fugitive Claimant Does Not Offend The Due Process Clause Of The Fifth Amendment Petitioner also contends (Br. 19-27) that the disentitle- ment rule developed by appellate courts may not be applied to claimants in civil forfeiture proceedings, be- cause, unlike criminal defendants who have no constitu- tional right to an appeal, those claimants have a due process right to be heard in their defense. That claim fails because petitioner was not deprived of the con- stitutional right he asserts. 1. The Due Process Clause of the Fifth Amendment requires that a litigant be afforded notice and the oppor- tunity for a hearing before being deprived of a property interest. E.g., Mathews v. Eldridge, 424 U.S. 319, 333 (1976). That, "of course," does not mean that "the defendant in every civil case [must] actually have a hear- ing on the merits." Boddie v. Connecticut, 401 U.S. 371, 378 (1971) (emphasis added); accord Logan v. Zimmer- ___________________(footnotes) 13 The course of litigation taken by Karyn Degen in this me after petitioner's claim was ordered struck is a fair indication of the steps petitioner would likely have taken-and the resources of the court he would have employed-had he not been disentitled. Karyn Degen called on the court to seek a protective order to pre- vent her from having to come to Nevada for her deposition (see Pet. C.A. App. 540) ; to compel answers to extensive interroga- tories (id. at 211-212, 223-231, 544) ; to seek (and, if necessary, compel) the depositions of nearly 20 people (id. at 541-542, 544) ; and to move to stay civil proceedings until disposition of related criminal charges (id. at 544). ---------------------------------------- Page Break ---------------------------------------- 28 man Brush Co., 455 U.S. 422, 437 (1992 ) ("Obviously, nothing we have said entitles every civil litigant to a hearing on the merits in every case"). Rather, all that "the Constitution does require is `an opportunity'" for a hearing. Boddie, 401 U.S. at 378 (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)); Logan, 4.55 U.S. at 437; see also Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Thus, the government "may erect reasonable procedural requirements" (Logan, 455 U.S. at 437) for triggering the right to be heard or defend, requiring, for example, that a claim be brought, or an appearance made, within a prescribed time period, e.g. Boddie, 401 U.S. at 378; Windsor v. McVeigh, 93 U.S. 274, 278 (1876), or that reasonable filing fees be paid, Logan, 455 U.S. at 437; United States v. Kras, 409 U.S. 434, 446-449 (1973), or that a litigant comply with orders for the production of evidence, Boddie, 401 U.S. at 378; Hammond Packing Co. v. Arkansas, 212 Us. 322, 351 (1909). Without violating due process, a court may dismiss a case, or enter default judgment, for noncompliance with such rules. Logan, 455 U.S. at 437; Hammond Packing, 212 U.S. at 352-354; Windsor, 93 U.S. at 278. As this Court has noted, "[t]he deprivation of a litigant's right to present a defense has been upheld * * * as a result of the litigant's failure to produce evidence, his violation of a rule of procedure, or other action justifying a judg- ment of default against him." National Union of Marine Cooks & Stewards v. Arnold, 348 U.S. at 42 n.5. A requirement that a litigant submit to our country's crimi- nal jurisdiction before he may have a hearing on the merits of a related civil case is not meaningfully different from those procedural requirements; like those rules, it rationally advances the court's interest in orderly proce- dure by imposing a requirement with which a litigant can readily comply. Striking the fugitive's claim for noncom- pliance accordingly does not offend any principle of due process. ---------------------------------------- Page Break ---------------------------------------- 29 Moreover, even if the due process issue is character- ized as one of "waiver," petitioner is wrong to contend that any waiver of his rights is invalid unless it meets the stringent standard of a voluntary, knowing act done with sufficient awareness of the consequences. Br. 27-28 (cit- ing, inter alia, Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). That heightened standard of waiver need not be met even for a court to conduct a valid criminal trial when a defendant voluntarily absents himself after the trial has begun. Taylor v. United States, 414 U.S. 17, 19-20 ( 1973) (per curiam); see United States v. Gagnon, 470 U.S. 522, 528-529 (1985) (per curiam). It surely has no relevance to consequences visited on a claimant to property in a civil case, imposed upon him by virtue of his status as a fugitive who has flouted the court's authority. And this Court has never insisted, before ap- plying the doctrine, on a showing that a fugitive from criminal justice had actual knowledge of the prospect of disentitlement. Petitioner also claims that the doctrine should be con- fined to appeals from criminal convictions, because in those cases the defendant already has had "a fair hear- ing." Br. 23-24. Appeals, however, are fundamentally based on the notion that "[c]ourts do make mistakes." Willy v. Coastal Corp., 503 U.S. 131, 139 ( 1992). In criminal cases, the point of an appeal is to claim that the defendant stands improperly convicted; i.e., that he did not have a "fair hearing." See Evitts v. Lucey, 469 U.S. 387, 402 ( 1985); Griffin v. Illinois, 351 U.S. 12, 18-19 (1956). In upholding disentitlement in that context, the Court necessarily assumes that the claims are at least substantial; there would be no point to the doctrine if it reached only appeals that the defendant would lose on the merits. See Sharpe, 470 U.S. at 724 (Stevens, J., dissent- ing) ("Every application of the * * * rule necessarily assumes that an appeal may be meritorious"). Indeed, that fact highlights the implausibility of petitioner's at- tempt to accord to property interests more elaborate ---------------------------------------- Page Break ---------------------------------------- 30 protections than the disentitlement doctrine accords to liberty. 14. See Conforte v. Commissioner 692 F.2d 587, 589-590 (9th Cir. 1982) (collecting authorities) ("the rule should apply with greater force in civil cases where an individual's liberty is not at stake"), stay denied, 459 U.S. 1309 (1983). 2. Petitioner relies (Br. 24-27) on a trio of 19th- century decisions-McVeigh v. United States, 78 U.S. (11 Wall.) 259 (1871), Windsor v. McVeigh, supra, and Hovey v. Elliott, 167 U.S. 409 (1897)-that he be- lieves establish his absolute right to a hearing at which he may press the merits of his claims. Those cases do not help him. The two McVeigh cases arose from a Civil War era law authorizing forfeiture of land owned by persons in active rebellion who refused to cease participation in the rebellion within 60 days of a presidential proclamation. After the government commenced forfeiture proceeding, McVeigh appeared through counsel and filed a claim and answer. 78 U.S. at 261. The government moved to strike his pleadings, because it appeared from McVeigh's an- swer that he was "a resident of the city of Richmond, within the Confederate lines, and a rebel." Ibid. The court granted the motion, and, in the absence of any claim and answer, the government won a default judg- ment. This Court reversed holding that, while an alien enemy might be barred from bringing suit in the courts of a hostile country, he nonetheless had a right to pre- ___________________(footnotes) 14 The different nature of the rights implicated by civil and criminal trials also disposes of petitioner's claim that "the govern- ment would never pretend that * * * it could `disentitle' " him by seeking a default judgment in the criminal case. Br. 23. The Sixth Amendment, which applies in criminal cases only, requires a jury trial absent a valid personal waiver. See, e.g., Sullivan v. Louisiana, 113 S. Ct. 2078, 2080 (1993) ; Brookhart v. Janis, 384 U.S. 1, 7-8 (1966). The Due Process Clause, by contrast, guarantees only an "opportunity" for a hearing; as we have noted, petitioner was afforded that opportunity. ---------------------------------------- Page Break ---------------------------------------- 31 sent a defense when sued in federal court. Id. at 267. Five years later in Windsor v. McVeigh, supra, the Court reaffirmed that the original forfeiture of property in McVeigh v. United States was void because the court had not permitted the claimant any opportunity to be heard. Neither of the McVeigh cases establishes an absolute "right to defend" irrespective of a party's compliance with reasonable rules of court. There was no allegation in those cases that the claimant had indicated his intention to appear on his own terms, or that the court's ability to function fairly and efficiently had been impaired in any respect by acts or omissions over which he could fairly be deemed to have control. 15. Indeed, the Court explicitly recognized that due process entitled the claimant only to "an opportunity to be heard," Windsor, 93 U.S. at 280 (emphasis added), that the right to defend could be sub- ject to reasonable procedural restrictions, id. at 278, and that, upon failure to comply with those procedures, "the default of * * * possible claimants of the property, may, of course, be entered and the allegations of the libel be taken as true," ibid. Hovey v. Elliott involved a collateral attack in the New York state courts on a default judgment that had been entered in the District of Columbia courts. In the ___________________(footnotes) 15 There was no indication that the court had any objection to McVeigh's appearance through counsel. If the court had insisted on McVeigh's personal appearance, and struck his claims upon his failure to do so, that action would have provoked "substantial con- stitutional questions" (Societe Internationale, 357 U.S. at 210), but only because it would have been effectively impossible for him to comply. Cf. Hicks v. Feiock, 485 U.S. 624, 638 n.9 (1988) ; United States v. Rylander, 460 U.S. 752, 757 (1983). As this Court has recognized, both belligerents in that conflict forbade their citizens to travel to (or have any contact with) the other belliger- ent. Lasere v. Rochereau, 84 U.S. (17 Wall.) 437, 439 (1873) ; Dean v. Nelson, 77 U.S. (10 Wall.) 158, 172 (1870) ("The de- fendants in the proceeding * * * were within the Confederate lines at the time, and it was unlawful for them to cross those lines"). ---------------------------------------- Page Break ---------------------------------------- 32 earlier case, the defendants had failed to comply with a court order that they pay certain funds into the registry of the court. 167 U.S. at 411. The court issued an order to show cause why they should not be "punished as for a contempt of court" (ibid.) for their failure to comply. When the defendants again failed to pay over the funds to the court, the court struck their answer from the record and entered a default judgment against them. Id. at 411-412. Speaking through the first Justice White, this Court affirmed the New York state court's refusal to honor that default judgment, concluding that the District of Columbia courts had lacked the authority "to deny all right to defend an action and to render decrees with- out any hearing whatever" for failure to obey an order of the court. Id. at 414; see also id. at 435. This Court's cases make clear that Hovey cannot bear the broad reading advanced by petitioner, because 12 years after Hovey, the Court "substantially modified" (Societe Internationale, 357 U.S. at 209) its holding in Hammond Packing Co. v. Arkansas, supra. 16. In an action under state antitrust law, the defendant in Hammond Packing refused to produce documents and witnesses be- fore a commissioner as ordered by a state court. The court then struck the defendant's answer for noncompli- ance with its order, as authorized by state law, and entered a default judgment against it. 212 U.S. at 339- 340 & n. 1. Speaking again through Justice White, this Court concluded that Hovey was not controlling and af- firmed the judgment. The Court noted that "[t]he ruling in Hovey v. Elliott was that to punish for contempt by striking an answer from the files and condemning, as ___________________(footnotes) 16 See also HMG Property Investors, Inc. v. Parque Industrial Rio Carom, Inc., 847 F.2d 908, 918 n.14 (lst Cir. 1988) ("Hovey was expressly limited by the decision in [ Hammond Packing] and impliedly limited by * * * the Court's more modern pronounce- ments") ; G-K Properties v. Redevelopment Agency of City of San Jose, 577 F.2d 645, 648 (9th Cir. 1978) (Kennedy, J.) (same) ; Norman v. Young, 422 F.2d 470, 473 (l0th Cir. 1970) (same). ---------------------------------------- Page Break ---------------------------------------- 33 default, was a denial of due process of law." Id. at 349; see also id. at 350 (Hovey "involved a denial of all right to defend as a mere punishment") (emphasis added); id. at 351 (Hovey represented "mere punishment"). By con- trast, striking the defendant's answer was justified by a presumption-absent from the statute (see id. at 339 n.1), but supplied by the Court-that "the refusal to produce evidence material to the administration of due process was but an admission of the want of merit in the asserted defense." Id. at 351; compare Taylor, 484 U.S. at 414-417 (permissible to preclude testimony of alibi witness in criminal case, when it is "reasonable to presume" that defendant's failure to comply with notice- of-alibi rule "conceal[s] a plan to present fabricated test- mony"); Baxter v. Palmigiano, 425 U.S. 308, 317-319 (1976) (court may draw adverse inference from invoca- tion of self-incrimination privilege in a civil case). This Court's cases since Hammond Packing leave no doubt that it is perfectly consistent with due process to impose "litigation ending" sanctions when, as petitioner did through his fugitivity, a party has manifested his unwillingness to comply with the court's orders for the conduct of the litigation, see 4A James Wm. Moore, Moore's Federal Practice "Par" 37.03[2], at 37-70 (1995) ("When there is a refusal to supply information on any topic * * * it is reasonable to apply the presumption to the party's entire case"); see also Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 706 (1982) (as a sanction for a defendant's failure to produce evidence relevant to personal jurisdic- tion, court properly deemed such jurisdiction established), particularly when the court can infer that the party has proceeded in bad faith. See Roadway Express, 447 U.S. at 767 n. 14; National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643 (1976) (per curiam). By his counsel's own admission, petitioner was "the only person" with knowledge of the facts on which he and his wife proposed to base their attack on the ---------------------------------------- Page Break ---------------------------------------- 34 government's forfeiture case. See 2/1/93 Tr. 8. 17. His readiness to use his fugitivity to control the manner in which those facts would be placed before the district court justifies a presumption regarding "the want of merit in [his] asserted defenses]." Hammond Packing, 212 U.S. at 351; see also Ali V. Sims, 788 F.2d 954, 959 (3d Cir. 1986) (noting that cases upholding default judg- ments as a discovery sanction "generally entail conduct far less egregious than a flight from justice'"). 3. Petitioner argues that the government's forfeiture case is insubstantial and that he will prevail in the event of a remand on one of several purportedly meritorious defenses. Br. 31-33; see also id. at 15 n.9. Petitioner's wife raised each of the same defenses, and an "innocent owner" claim in addition. Compare T.A. 31-32 and Pet. C.A. App. 136-140 (petitioner's amended answer) with Pet. C.A. App. 404-410 (Karyn Degen's answer) and id. at 130-134 (amended answer). Although she was given a "full and fair opportunity to litigate" (Montana v. United States, 440 U.S. 147, 153 ( 1979)) those claims, was afforded numerous extensions of time to do so (Pet. App. 13a-14a), and was warned of the conse- quences of default (id. at 9a-10a), she failed to support them. That failure not only raises considerable doubt about the merits of those arguments, but also resulted in the entry of a judgment against her that was affirmed by the court of appeals, and that became final when she failed to seek further review in this Court. Under ordi- nary principles of claim preclusion, that final judgment binds her and her privies, see, e.g., Morris v. Jones, 329 U.S. 545, 550-551 (1947); Riehle v. Margolies, 279 U.S. 218, 225 (1929); Last Chance Mining Co. v. Tyler Mining Co., 157 U.S. 683, 691 (1895); SMA Life Assur- ance Co. v. Sanchez-Pica, 960 F.2d 274, 275 (1st Cir.), cert. denied, 506 U.S. 872 (1992), of which petitioner ___________________(footnotes) 17 Petitioner has lodged a copy of that transcript with the Clerk of the Court. ---------------------------------------- Page Break ---------------------------------------- 35 surely is one. 18. On that ground alone, it is difficult to assign a high likelihood of success to petitioner's chances on remand in the event that this Court vacates the court of appeals' ruling as to him. 19. ___________________(footnotes) 18 Petitioner's status as a privy flows from his marriage to Karyn and their status as purported co-owners of the seized property, see Cotton v. Federal Land Bank of Columbia, 676 F.2d 1368, 1370 (11th Cir.), cert. denied, 459 U.S. 1041 (1982) ; see also Sparks Nugget, Inc. v. Commissioner, 458 F.2d 631, 639 & n.4 (9th Cir. 1972), cert. denied, 410 U.S. 928 (1973) ; Smith v. United States, 254 F.2d 865, 869 (6th Cir. 1958), and their representation by common counsel throughout the proceedings, see e.g., Sondel v. Northwest Airlines, Inc., 56 F.3d 934, 940 (8th Cir. 1995) ; Conte v. Justice, 996 F.2d 1398, 1402 (2d Cir. 1993) (New York law) ; 1488, Inc. v. Philsec Inv. Corp., 939 F.2d 1281, 1290 (5th Cir. 1991) ; Alpert's Newspaper Delivery, Inc. v. New York Times Co., 876 F.2d 266, 270 (2d Cir. 1989) ; see also Smith, 254 F.2d at 869 (collateral estoppel). 19 In any event, petitioner's stated defenses rest on erroneous legal premises. His claim that the forfeitures are barred by the statute of limitations is based on the view that the date when the property was acquired controls (Br. 31) ; the limitations period runs instead from the discovery of the offense that gives rise to the forfeiture. See 19 U.S.C. 1621; United States v. Premises Known as 318 S. Third St., 988 F.2d 822, 825-826 (8th Cir. 1993). His argument that "the government's complaint is premised on a retroactive application of" the forfeiture laws (Br. 32) also is based on the assumption that the date when the property was ac- quired, rather than the date when its illegal use occurred, is con- trolling. The evidence relied on by the government shows that petitioner's participation in the smuggling enterprise continued well past the effective dates of both 21 U.S.C. 881 (a) (6) (Novem- ber 10, 1978) and 881 (a) (7) (October 12, 1984). See J.A. 108- 114, 138, 160-161. Moreover, the retroactive application of those provisions would not violate the Ex Post Facto Clause. See 1 David B. Smith, Prosecution and Defense of Forfeiture Cases "Par" 4.03[4] [f], at 4-120.14 (1995) ; see also Ron Champoux, Real Property Forfeiture Under Federal Drug Laws: Does the Punishment Out- weigh the Crime?, 20 Hastings Const. L.Q. 247, 251 n.38 (1992). ---------------------------------------- Page Break ---------------------------------------- 36 II. THE DISTRICT COURT PROPERLY CONCLUDED THAT PETITIONER WAS A FUGITIVE FROM CRIMINAL JUSTICE Petitioner argues (Br. 34-41) in the alternative that the district court erred in concluding that he was a "fugi- tive." Petitioner argues that his refusal to return to this country to stand trial on criminal charges could not make him a fugitive either under "the ordinary meaning of * * * the word `fugitive' " or "the conventional legal concept of `fugitive from justice' as developed in several analogous areas of the law." Br. 35-36. According to petitioner, the disentitlement rule should be applied only when the defendant already has been convicted of a crime or, at least, when his refusal to appear for his criminal trial amounts to a separate criminal offense. Those con- tentions are incorrect. 1. The dictionary definition of fugitive does not, con- trary to petitioner's claim (Br. 9, 37), require a showing that a person left the United States with the specific in- tent of avoiding prosecution. While that sort of conduct doubtless is included within the ordinary understanding of fugitivity, that common understanding also encom- passes anyone who is absent from the jurisdiction in which he is wanted, especially if he has knowledge that criminal charges have been lodged against him. See, e.g., Webster's Third New International Dictionary 918 ( 1986) (clef. lb: "fugitive" is "one who tries to elude justice"); ibid. ("fugitive from justice: one who having committed or being accused of a crime in one jurisdiction is absent for any reason from that jurisdiction; specif: one who flees to avoid punishment"); 1 Samuel Johnson, A Dic- tionary of the English Language ( 1755) ("fugitive" in- cludes "[o]ne who takes shelter under another power from punishment"). Nor is petitioner's view required as a matter of "logic[]" (Br. 37), since it is hardly obvious that there is a "logical distinction between the person who leaves to avoid prose- ---------------------------------------- Page Break ---------------------------------------- 37 cution and the person who, once gone, refuses to return for the same reason, to avoid prosecution." United States v. Spillane, 913 F.2d 1079, 1081 (4th Cir. 1990); see also Jhirad v. Ferrandina, 536 F.2d 478, 483 (2d Cir. ) (same), cert. denied, 429 U.S. 833 ( 1976). Indeed, peti- tioner himself conceded before the Ninth Circuit panel that the district court "properly" found him to be a fugi- tive-a concession that strongly undermines his current claim that the definition he proposes is the only "[] ten- able" one (Br. 37) as a matter of language and logic. 20. 2. Petitioner's position also lacks support in other areas of the law in which the concept of fugitivity is relevant. a. The Constitution provides for the return for prose- cution of persons "who shall flee from Justice, and be found in another State," U.S. Const. Art. IV, 2, Cl. 2, and Congress has, since 1793, provided a procedure for the return of such "fugitive[s] from justice" for prosecu- tion. See 18 U.S.C. 3182 (formerly codified at 18 U.S.C. 662 (1946) and Rev. Stat. 5278 (1878)); see gen- erally Puerto Rico v. Branstad, 483 U.S. 219, 223 n.2 (1987); South Carolina v. Bailey, 289 U.S. 412, 419 ___________________(footnotes) 20. Petitioner's appeal to the Ninth Circuit was predicated solely on the basis that, as a result of his arrest by Swiss authorities years after the district court's order, he was effectively "imprisoned in the related criminal case and [therefore] [wa]s no longer a fugitive for purposes of disentitlement." Brief of the Appellants at 30, United States v. Real Property Located at Incline Village, No. 93-16996 (9th Cir.) (emphasis added). At oral argument be- fore the court of appeals, petitioner's counsel stated: Brian Degen is a resident of Switzerland. When the criminal complaint was filed he decided not to return [to the United States]. After the complaint was filed and the answer, the government moved for summary judgment on the fugitive disentitlement doctrine. And the [district] court found-and I think properly so-that because [Degen] had failed to re- turn, he was a fugitive. (Emphasis added). We have lodged a copy of a tape of the oral argument with the Clerk of the Court. ---------------------------------------- Page Break ---------------------------------------- 38 (1933 ). In construing those provisions, this Court has time and again embraced a concept of fugitivity at odds with that advocated by petitioner: To be regarded as a fugitive from justice it is not necessary that one shall have left the State in which the crime is alleged to have been committed for the very purpose of avoiding prosecution, but simply that, having committed there * * * a crime, he afterwards has departed from its jurisdiction and when sought to be prosecuted is found within the territory of another State. Hogan v. O'Neill, 255 U.S. 52, 56 ( 1921) (construing Rev. Stat. 5278); accord Biddinger V. Commissioner of Police, 245 U.S. 128, 133 (1917) ("one who leaves the demanding State before prosecution is anticipated or begun, or without knowledge on his part that he has violated any law, * * * is nevertheless decided to be a fugitive from justice within" the meaning of Art. IV, 2, Cl. 2, and former Revised Statutes 5278); Strassheim v. Daily, 221 U.S. 280, 285 (1911) ("all that is neces- sary to convert a criminal * * * into a fugitive from justice is that he should have left the State after having incurred guilt there" ); Appleyard v. Massachusetts, 203 U.S. 222 (1906) (collecting authorities); Roberts v. Reilly, 116 U.S. 80, 97 (1885) . 21. ___________________(footnotes) 21 Relatedly, the President has exercised his treaty power (see U.S. Const. Art. II, 2, Cl. 2) to enter into extradition treaties with foreign nations. See, e.g., 18 U.S.C. 3181 note (listing of bilateral extradition treaties entered into by the United States). Our extradition treaties generally do not distinguish between per- sons who left the United States with the intent to avoid prosecution, and those who left for legitimate reasons but refuse to return to face criminal charges. The coverage of both classes implicitly recog- nises that an absent defendant's intent in leaving the country is not relevant to the societal interest that he return and face justice for crimes committed here. See 2 M. Cherif Bassiouni, International Extradition: United States Law & Practice 520 (2d ed. 1987) ("The term `fugitive' as used in extradition treaties refers to any ---------------------------------------- Page Break ---------------------------------------- 39 b. Similarly, the weight of authority under 18 U.S.C. 3290, the statute that tolls the limitations period as to "any person fleeing from justice," does not, as petitioner believes, support the narrow definition of fugitivity that he proposes. See Br. 38-39 (arguing that petitioner's con- duct was "sufficiently innocent" that it would not trigger Section 3290's tolling provision). Petitioner asserts that in Streep v. United States, 160 U.S. 128, 133 (1895), this Court "suggested" that a predecessor statute "required a showing of `flight with the intention of avoiding being prosecuted.'" Br. 38 (emphasis added). The Court ac- tually stated in Streep, however, that while it was "unnec- essary * * * to undertake to give an exhaustive defini- tion" to the phrase "fleeing from justice," it was "sufficient that there `[be] a flight with the intention of avoiding being prosecuted, whether a prosecution has or has not been actually begun." 160 U.S. at 133 (emphasis added). The Court in Streep went onto note that there can be no doubt that, in this respect, section 1045 of the Revised Statutes [the tolling statute] must receive the same construction that has been given to section 5278 [the interstate extradition statute] by this court, saying: "To be a fugitive from justice, * * * it is not necessary that the party charged should have left the State * * * after an indictment found, or for the purpose of avoiding a prosecution antici- pated or begun, but simply that having within a State committed that which by its laws constitutes a crime, when he is sought * * * to answer for his offense, he has left its jurisdiction and is found within the terri- tory of another." Roberts v. Reilly, 116 U.S. 80, 97 [(1885)]. 160 U.S. at 134 (emphasis added). The courts of ap- peals have differed on the issue whether Streep means that the statute of limitations may be tolled without any ___________________(footnotes) person who has left the state in which the alleged crime was committed for whatever reason"). ---------------------------------------- Page Break ---------------------------------------- 40 showing that the defendant ever entertained an intent to avoid prosecution (i.e., under a "mere absence" test), and most courts of appeals have required that the gov- ernment establish that the defendant intended to avoid prosecution, Petitioner errs, however, when he suggests that "[a] majority of the circuits" (Br. 38-39, citing cases from the First, Fifth, and Seventh Circuits) has endorsed his restrictive view that the requisite intent must be shown to have existed as a motivating force at the time he departed, rather than at any time during which he was absent from, the jurisdiction. So far as we can determine, every court of appeals would reject petitioner's claim that, as a matter of law, he could not be found to be "fleeing from justice" under Section 3290 on proof of his absence from the jurisdiction coupled with his refusal to surrender to face criminal charges. 22. ___________________(footnotes) 22 Two circuits (the Eighth and District of Columbia Circuits) merely require a showing that the fugitive resides in another jurisdiction than that in which the crime took place. See In re Assarsson, 687 F.2d 1157, 1162 (8th Cir. 1982) ; Green v. United States, 188 F.2d 48 (D.C. Cir.), cert. denied, 341 U.S. 955 (1951) ; see also United States v. Singleton, 702 F.2d 1159, 1169 n.32 (D.C. Cir. 1983) (noting circuit precedent and reserving question whether "mere absence" rule retains vitality). Two others (the Second and Ninth Circuits) apply the tolling provision to persons who, like petitioner, purportedly leave the United States for some legitimate purpose but who remain abroad in an effort to thwart prosecution. See United States v. Fowlie, 24 F.3d 1070, 1072 (9th Cir. 1994) (defendant lived openly and notoriously in Mexico), cert. denied, 115 S. Ct. 742 (1995) ; id. at 1073 (Farris, J., concurring) (defend- ant "knew he was wanted by the authorities and intentionally thwarted arrest by remaining abroad") ; United States v. Catino, 735 F.2d 718, 722-723 (2d Cir.) (defendant contested extradition instead of consenting to return to the United States), cert. denied, 469 U.S. 855 (1984). The Tenth and Eleventh Circuits have indi- cated their agreement with that position. See United States v. Morgan, 922 F.2d 1495, 1499 n.3 (l0th Cir.) (dictum) (noting that defendant's knowledge that he is wanted, coupled with failure to submit to arrest "is enough") (citing United States v. Wazney, 529 F.2d 1287, 1289 (9th Cir. 1976)), cert. denied, 501 U.S. 1207 ---------------------------------------- Page Break ---------------------------------------- 41 c. Finally, petitioner relies (Br. 38) on 18 U.S.C. 1073, which makes it a crime to travel in interstate commerce intending "to avoid prosecution, or custody or confinement after conviction." Petitioner, however, offers no reason that would justify transposing the specific elements of that crime to the present context. Section 1073 is part of chapter 49 of Title 18, which is entitled "Fugitives From Justice." The first section of that chapter makes it a crime knowingly to "harbor[] or conceal[] any person for whose arrest a warrant or process has been issued under the provisions of any law of the United States, so as to prevent his discovery and arrest." 18 U.S.C. 1071. Thus, while the provision on which peti- tioner relies deals with one facet of the fugitivity problem, the legislative framework to which that provision belongs also manifests the understanding that one harbors a "Fugi- tive[] From Justice" by giving refuge to a person for whom criminal process has been issued and who has not ___________________(footnotes) (1991) ; Schuster v. United States, 765 F.2d 1047, 1050 (11th Cir. 1985) (citing Second Circuit's rule under Section 3290 in affirming application of disentitlement rule in civil tax case; "whatever [petitioner's] intent may have been when she left the United States, she has certainly since established her status as a fugitive from this nation's criminal process, particularly as of the moment she chose to resist extradition"). Moreover, the First and Fifth Circuit cases that petitioner cites at best are ambiguous on the point. See Brouse v. United States, 68 F.2d 294, 296 (1st Cir. 1933) ; Donnell v. United States, 229 F.2d 560, 565 (5th Cir. 1956) (relying on Brouse to conclude that "the purpose and intent of [the defendant's] absence is * * * to be inquired into by the jury") (emphasis added) ; see also Jhirad, 536 F.2d at 483 (relying on Donnell's emphasis on the reasons for the defendant's "absence" to hold that no "meaningful distinction exists between those who leave their native country and those who, already outside, decline to return"). In any event, the Seventh Circuit, which according to petitioner (Br. 38) follows the same rule as those two circuits, would infer the requisite intent "where the defendant fails to surrender to authorities after learning of the charges against him." United States v. Marshall, 856 F.2d 896,900 (1988) (collecting authorities). ---------------------------------------- Page Break ---------------------------------------- 42 surrendered; a person, in short, who occupies the same position as petitioner. See also Black's Law Dictionary 671 (6th ed. 1990). 23. 3. Not only do the sources cited by petitioner fail to support his narrow concept of fugitivity, but his argu- ment also misses the central issue: whether application of the fugitive disentitlement doctrine in a civil forfeiture action to one in petitioner's position furthers the equitable goals of that doctrine. The answer to that question does not turn on whether petitioner is guilty of "[b]ail-jumping, escape from custody," or other actions that are inde- pendently proscribed by the penal laws (Br. 39), since "one's misconduct need not necessarily have been of such a nature as to be punishable as a crime" before it may be noticed by a court of equity. Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U.S. 806, 815 (1945). Nor is it dispositive that "this Court has approved disentitlement only against per- sons who have already been convicted of crimes." Br. 35. Because the doctrine initially developed as a rule of criminal appellate practice, which necessarily presupposes ___________________(footnotes) 23 Petitioner also argues (Br. 37) that, for purposes of the Gun Control Act of 1968, Congress specifically defined the phrase "fugi- tive from justice" narrowly. See 18 U.S.C. 921 (a) (15). That defi- nition of fugitivity, however, could reasonably be taken to reflect Congress's intent to depart from the meaning that courts would otherwise give to the concept as a matter of plain language and ordinary legal usage. In any event, the Gun Control Act's provi- sions do not throw much light on the precise scope of the fugitivity concept, because there is a division of authority on the meaning of the Act's provisions with respect to the very point urged by peti- tioner. Compare United States v. Durcan, 539 F.2d 29, 32 (9th Cir. 1976) (relied on by petitioner, Br. 37) with Spillane, 913 F.2d at 1081 (expressly disagreeing with Durcan; the defendant "purposefully stayed away from [the jurisdiction] to avoid fac- ing the charges pending against him * * * [and] this alone is enough to support the assertion by the government that [he] [i]s a `fugitive from justice' as defined by the statute"). ---------------------------------------- Page Break ---------------------------------------- 43 an underlying criminal conviction, petitioner's observa- tion amounts more to a description of the facts of this Court's cases than a reasoned argument for limiting the doctrine to that context. The definition of fugitive status for the disentitlement doctrine must instead be informed by the purposes of that doctrine. Here, as the district court found, petitioner "knows that he is wanted by the police, but refuses to submit to arrest, even though he professes his innocence." Pet. App. 18a. He nonetheless seeks to litigate in ab- stentia his claims in the related civil forfeiture action, a course of action that will predictably interfere with the orderly conduct of the civil litigation, while bidding fair to frustrate the government's interests in prosecuting him. Accordingly, as we have explained, the goals of the fugi- tive disentitlement doctrine are compellingly served by applying it in this case. 24. III. PETITIONER'S CLAIMS THAT HE HAS CEASED BEING A FUGITIVE AND THAT THE GOVERN- MENT'S "UNCLEAN HANDS" PRECLUDE DISEN- TITLEMENT DO NOT WARRANT RELIEF Petitioner raises two additional claims that he contends warrant vacatur of the court of appeals' judgement. first, he contends (Br. 42-43) that by the time the district court entered its judgment, he was no longer a fugitive because he had by then been arrested by Swiss authorities in connection with a prosecution that the United States encouraged and that rests mainly on the allegations made ___________________(footnotes) 24 Petitioner argues (Br. 40-41) that, if the Court accepts his claim that he must be shown to have intended to avoid prosecution at the time he left for Switzerland, the government should not be allowed an opportunity to meet that standard on remand. The Court's practice when legal error has been committed, however, is to remand for application of the correct standard, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986) ; see also Schlagen- hauf v. Holder, 379 U.S. 104, 111-112 (1964). ---------------------------------------- Page Break ---------------------------------------- 44 in the federal criminal indictment. Second, he argues (Br. 46-49) that the government misrepresented to the district court and the court of appeals the true nature of the Swiss proceedings, and that the government's "un- clean hands" preclude application of the disentitlement doctrine to him. As we read his reply brief at the petition stage, petitioner expressly disclaimed even "mak[ing]" the former argument in his petition (Reply Br. 8); the latter claim appeared for the first time in his opening brief on the merits. Those arguments therefore are not properly before the Court. In any event, they lack merit. 1. The district court initially ruled that petitioner was a fugitive for purposes of the disentitlement doctrine in December 1990. Pet. App. 17a. That ruling constituted law of the case in the absence of "changed circumstances or unforeseen issues not previously litigated," Wyoming v. Oklahoma, 502 U.S. 437, 446 (1992) (quoting Ari- zona v. California, 460 U.S. 605, 619 (1983)), or until revised upon a showing that it "was `clearly erroneous and would work a manifest injustice,' " Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 817 ( 1988) (quoting Arizona, 460 U.S. at 618 n.8). Having ruled on the issue, the district court was entitled to consider the matter settled unless and until petitioner sought relief from that ruling and established "one of the * * * rec- ognized exceptions to the law of the case doctrine." Shore v. Warden, 942 F.2d 1117, 1123 (7th Cir. 1991 ), cert. denied, 504 U.S. 922 ( 1992); accord Merritt v. Mackey, 932 F.2d 1317, 1322 (9th Cir. 1991); Branning v. United States, 784 F.2d 361, 363 (Fed. Cir. 986); see also Jeffries v. Wood, 75 F.3d 491, 493 (9th Cir. 1996) (collecting authorities); United States v. Sanchez, 35 F.3d 673, 677 (2d Cir. 1994), cert. denied, 115 S. Ct. 1404 (1995). Petitioner did not attempt to do so. Although he was arrested by the Swiss some seven months before the entry of judgment in the district court, see Pet. App. 30a, ---------------------------------------- Page Break ---------------------------------------- 45 32a-37a, and his counsel had attended proceedings con- ducted by a Swiss magistrate in Reno, see transcript of hearing held 9/13/93, attached to Pet. C.A. Mot. to Supplement Rec. (filed Dec. 9, 1994), petitioner never sought to have the district court reconsider its disentitle- ment ruling. Petitioner does not allege that the govern- ment or the court did anything that affirmatively pre- vented him from making that request. Indeed, his counsel raised claims concerning the impact of the Swiss arrest on discovery issues relating to Karyn Degen. See 2/1/93 Tr. 7-9, 39-44. And petitioner has never suggested, even to this day, that were he released from Swiss custody, he would give up his fugitive status and travel to this country to meet the criminal charges against him, or that he has made a good-faith effort to do so. On that record, the court of appeals correctly concluded (Pet. App. 6a-7a) that petitioner forfeited any claim he might have had to show that his fugitive status ceased upon his arrest in Switzerland. 25. 2. We have acknowledged that, before the lower courts, the government's briefs did not appropriately set ___________________(footnotes) 25 Petitioner argues that this Court should entertain his claim that he is, in effect, a recaptured fugitive, because the government has informed this Court that petitioner "was taken into the custody of Swiss authorities who were acting at the behest of U.S. prosecu- tors." Pet. Br. 42-43 & n.24; see also U.S. Br. "in Opp. 15 n.9 (acknowledging the authenticity of two Department of Justice let- ters now attached to petitioner's brief at App. 1a-4a). The fact remains, however, that petitioner never gave the district court any opportunity to assess the legal significance of his Swiss arrest. See Pet. App. 6a (noting that, even on appeal, petitioner "never prof- fered any * * * argument explaining the import" of the letters he cited). And because recapture does not invariably preclude disen- titlement, see Ortega-Rodriguez, 113 S. Ct. at 1204, the significance of recapture would present in the first instance a question of policy for the court whose processes petitioner flouted. This Court would then review that determination only for "reasonableness." Id. at 1205-1206 & n.15. Petitioner's default in the lower courts is therefore fatal to his claim to former fugitive status. ---------------------------------------- Page Break ---------------------------------------- 46 forth the full factual background of the government's role in urging Swiss authorities to prosecute Petitioner. 26. For two reasons, we disagree with petitioner's contention that our acknowledgement warrants vacatur of the judgment under the "unclean hands" doctrine. First, we do not believe that the government's misstatements below re- sulted in the judgments entered in the lower courts. Peti- tioner's own failure to raise the issue in the district court, which did not flow from any conduct by the government, was the direct cause of the court of appeals' refusal to consider it. Compare Bank of Nova Scotia, 487 U.S. at 254-256; United States v. Payner, 447 U.S. 727, 736 (1980). Second, and more important, the "unclean hands" doc- trine "does not mean that courts must always permit a defendant wrongdoer to retain the profits of his wrong- doing merely because the plaintiff himself is possibly ___________________(footnotes) 26 In our brief in opposition to the petition for a writ of certiorari (at 17 n.11), we noted that "[s]ome statements in the government's brief [in the court of appeals] incorrectly suggested that the Department of Justice played no part at all in instigating the Swiss prosecution, when in fact the Department did request that Swiss authorities prosecute petitioner in Switzerland for the same conduct that underlay his indictment in the United States." We indicated that "the Swiss government has, in fact, undertaken a prosecution of petitioner, at the request of the United States and based princi- pally on the conduct that formed the basis for the U.S. indictment." Id. at 16-17. We also stated, however, that the government's counsel at oral argument had apprised the court of appeals that the United States "encouraged" the Swiss prosecution and had sent Swiss authorities a copy of the U.S. indictment (id. at 17 n.11 ), and that that court had "properly resolved the Swim prosecution issue against petitioner on the basis of his failure to develop an adequate record for examination of the issue." Ibid. In our view, the oral argument apprised the panel that the United States had asked the Swiss government to prosecute Degen, and that, in the government's view, the Swiss prosecution constituted an action within the discre- tion of a foreign sovereign, rather than (as petitioner alleged) a prosecution effectively conducted by the United States itself "under Swiss procedure" (Brief of the Appellants at 32). ---------------------------------------- Page Break ---------------------------------------- 47 guilty" of some transgression relating to "the transactions involved." Johnson v. Yellow Cab Transit Co., 321 U.S. 383, 387 (1944). In particular, a court "should not automatically condone" a party's infractions merely be- cause that party's opponent "is also blameworthy, thereby leaving two wrongs unremedied and increasing the injury to the public." Republic Molding Corp. v. B. W. Photo Utilities, 319 F.2d 347, 350 (9th Cir. 1963). That prin- ciple applies with great force here, because the disentitle- ment doctrine is primarily designed to further the public interest in the orderly administration of justice. See In re Prevot, 59 F.3d 556, 566 (6th Cir. 1995), cert. de- nied No. 95-7343 (Mar. 4, 1996). Indeed, as we have argued, when applied to fugitives who have successfully avoided trial, it is a doctrine that safeguards the court's interest in ensuring that the discovery processes available in a related civil case are not improperly exploited, with the purpose and effect of thwarting the criminal prosecu- tion. 27. Unprofessional conduct by a government attorney, which can effectively be addressed in other ways when it occurs, see United States v. Hasting, 461 U.S. 499, 506 n.5 (1983); Bank of Nova Scotia, 487 U.S. at 263, pro- vides no persuasive basis for disregarding the strong pub- lic interests in the application of the disentitlement doctrine. ___________________(footnotes) 27 The cases on which petitioner relies (Br. 44-45) principally involved courts' refusal to entertain patent infringement suite when the plaintiffs obtained the patents (or expanded their scope) through fraud. In none of those cases was a malefactor permitted to benefit from his inequitable actions merely to offset another litigant's wrongful conduct, and none refused to apply a doctrine developed for the court's benefit merely because it would benefit a litigant with purportedly unclean hands. Indeed, the courts' invocation of the "unclean hands" doctrine se-rued the public interest by prevent- ing a party who had obtained a patent through fraud from employ- ing the monopoly power it conferred to the public's detriment. ---------------------------------------- Page Break ---------------------------------------- 48 CONCLUSION The judgment of the court of appeals should be affirmed. Respectfully submitted. DREW S. DAYS, III Solicitor General JOHN C. KEENEY Acting Assistant Attorney General MICHAEL R. DREEBEN Deputy Solicitor General MIGUEL A. ESTRADA Assistant to the Solicitor General JOHN P. ELWOOD Attorney MARCH 1996 U.S. GOVERNMENT PRINTING OFFICE; 1996 405017 40092 ---------------------------------------- Page Break ----------------------------------------