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Fugitive Disentitlement Doctrine: A

Stricter Standard for the Burden of Proof


to Label Someone a Fugitive

Alexandra M. Collins*

INTRODUCTION

T
here is a long history in the United States in refusing to allow a
fugitive to use the courts to receive a beneficial disposition while
simultaneously ignoring the authority of the courts over him or
herself. This practice is known as the “Fugitive Disentitlement Doctrine,” a
1

judicially created doctrine based on nineteenth century common law. 2 This


equitable 3 doctrine prevents one who has been labeled a fugitive from
having standing in court, thereby dismissing a claim regardless of the
merits. 4 The Doctrine has been expanded from applying only to criminal

* Juris Doctor, New England Law | Boston (2017). Dual B.A., cum laude, Criminal Justice &

Spanish, Roanoke College (2014). I would like to thank my family and friends, for their
unconditional support and encouragement, especially when I would get discouraged;
Elizabeth Mikesell, for not only helping me with the externship that lit the match for the idea
of this topic, but for also being the inspiration for me to enter the legal field; and all of the
Editors and Associates who have put in their time and effort to help improve the quality of
this article.
1 Martha B. Stolley, Note, Sword or Shield: Due Process and the Fugitive Disentitlement

Doctrine, 87 J. CRIM. L. & CRIMINOLOGY 751, 752 (1997); Lawrence Serkin Winsor, Note,
Runaway Usance: Limiting the Exercise of the Fugitive Disentitlement Doctrine in the Context of
Wenqin Sun v. Mukasey and Bright v. Holder, 47 GA. L. REV. 273, 276 (2012).
2 See Stolley, supra note 1, at 752–53.

3 Equitable, BLACK’S LAW DICTIONARY (2d ed.), https://perma.cc/8UM6-6H49 (last visited

July 11, 2017) (providing the definition of equitable as just and fair).
4 Winsor, supra note 1, at 278 (“The fugitive disentitlement doctrine prevents an evasive
party from obtaining standing in the court whose authority is evaded.”); see also Angelo M.
Russo, Note, The Development of Foreign Extradition Takes a Wrong Turn in Light of the Fugitive
Disentitlement Doctrine: Ninth Circuit Vacates the Requirement of Probable Cause for a Provisional
Arrest in Parretti v. United States, 49 DEPAUL L. REV. 1041, 1049 (2000) (noting that the right to
appeal is not absolute and procedural rules may bar the right to appeal as a sanction as long
as it is not inconsistent with the Constitution or statutes).

635
636 New England Law Review [Vol. 51|3

appeals to other areas, such as civil forfeitures. 5 In civil forfeitures the


government is allowed to seize property that it suspects is connected to or
part of a crime. 6 The burden of proof for such suspicion is quite low, as an
underlying criminal charge is not needed. 7
As the Doctrine has expanded, there have been concerns about who is
considered a fugitive in order to invoke such a sanction of allowing a court
to dispose of a case not on its merits. 8 This concern has led to a split among
the circuit courts of appeals about the amount of evidence required to
show that the claimant had the intent to avoid criminal prosecution. 9 In
order for the Doctrine to apply in jurisdictions like the Ninth Circuit, the
government only needs to show that avoidance of the underlying
prosecution is a reason why the claimant refuses to submit him or herself to
the jurisdiction of the court. 10 In jurisdictions like the D.C. Circuit, the
government must show that the avoidance of the criminal prosecution was
the sole reason as to the claimant’s refusal to render him or herself to the
court’s jurisdiction. 11 This Note suggests that due to concerns about how
easy it is for the government to use civil forfeiture procedures to obtain a
person’s property, especially when used in conjunction with the Doctrine,
the Supreme Court should adopt the D.C. Circuit’s stance in order to

5 Henry Tashman et al., Flight or Fight: Originally Invoked in Criminal Cases, the Fugitive
Disentitlement Doctrine is Equally Applicable in Civil Disputes, 29 L.A. LAW. 44, 45 (2006); Winsor,
supra note 1, at 279 (noting other areas to which the Doctrine applies, such as administrative
forfeiture, tax liabilities, and extradition); see also 28 U.S.C. § 2466 (2016).
6 Merrill Matthews, Civil Asset Forfeiture and the Constitution, INST. FOR POL’Y INNOVATION

(Feb. 2016), https://perma.cc/3BHY-765L.


7 Id.; Mary Murphy, Note, Race and Civil Asset Forfeiture: A Disparate Impact Hypothesis, 16
TEX. J. ON C.L. & C.R. 77, 81 (2010).
8 See Ilya Somin, Can the Government Use the “Fugitive Disentitlement” Doctrine to Prevent

Residents of Foreign Countries from Contesting the Seizure of their Property?, WASH. POST (July 9,
2015), https://perma.cc/G8Y5-2QGC.
9 Compare United States v. Technodyne LLC, 753 F.3d 368, 383–84 (2d Cir. 2014), and

United States v. $671,160.00 in U.S. Currency, 730 F.3d 1051, 1056–57 (9th Cir. 2013) (holding
that a showing of avoiding criminal prosecution is sufficient to fit the statutory definition of a
fugitive), with United States v. Salti, 579 F.3d 656, 664–65 (6th Cir. 2009), and United States v.
$6,976,934.65, Plus Interest Deposited into Royal Bank of Scot. Int’l, Account No. 2029-
56141070, Held in the Name of Soulbury Ltd., 554 F.3d 123, 132–33 (D.C. Cir. 2009) (holding
that avoiding criminal prosecution must be the sole reason for not surrendering to the
jurisdiction to become a fugitive).
10 See generally $671,160.00 in U.S. Currency, 730 F.3d at 1056–57 (holding that refusal to

reenter the United States for a criminal procedure can render one a fugitive).
11 See generally $6,976,934.65, Plus Interest Deposited into Royal Bank of Scotland Intern.,

Account No. 2029-56141070, Held in Name of Soulbury Ltd., 554 F.3d at 132 (holding that
avoiding criminal prosecution must be the sole reason for not surrendering to the court’s
jurisdiction).
2017] Fugitive Disentitlement Doctrine 637

constrain the government.


Part I of the Note discusses the history and development of the
Doctrine by examining Supreme Court precedent, along with Congress’
reaction to such precedents. Part II discusses in depth the creation of the
split among the circuits. Part III then explains why the D.C. Circuit’s
standard of proof to label someone a fugitive is likely to be adopted by the
Supreme Court.

I. History and Development of the Fugitive Disentitlement Doctrine

The Fugitive Disentitlement Doctrine is a judicially-created doctrine


that is based on common law to eliminate the thinking of “heads I win,
tails you lose” 12 employed by criminal appellants. 13 Such a decision to
invoke the Doctrine to dismiss an appeal is not mandatory when one flees
from the jurisdiction, rather it is a discretionary sanction. 14 Eventually the
Doctrine was expanded to other areas, but the United States Supreme
Court has imposed some limitations on the reach of the Doctrine. 15 In
response to some of these limitations, Congress enacted legislation that
widened the scope again, particularly for civil forfeitures. 16

A. Supreme Court Precedents

The Supreme Court has recognized the Doctrine since the late 1800s. 17
Over the centuries, the Court has continued to hear cases related to the
Doctrine, which has resulted in its expansion beyond the original scope of
criminal appeals. 18 Though in 1996, the Court put up a roadblock in regard

12 Tashman, et al., supra note 5 (noting that the “heads I win, tails you lose” mentality is

when a fugitive can enjoy a legal victory while at the same time “ignoring the . . .
consequences of defeat”).
13 See Stolley, supra note 1, at 752 (“[F]ugitive from justice may not seek relief from the

judicial system whose authority he or she evades.”).


14 See Russo, supra note 4, at 1049–50; see also N. Brock Collins, Note, Fugitives and

Forfeiture— Flouting the System or Fundamental Right, 83 KY. L.J. 631, 637 (1994–95).
15 See Degen v. United States, 517 U.S. 820, 823 (1996) (stating that the Court would not

extend the Doctrine to civil proceedings because that would exceed the power of the
judiciary); Ortega-Rodriguez v. United States, 507 U.S. 234, 244 (1993) (providing that there
needs to be a connection between fugitive status and the specific court’s jurisdiction); see also
Russo, supra note 4, at 1049, 1077; Winsor, supra note 1, at 281.
16 See generally 28 U.S.C. § 2466 (2000), amended by 28 U.S.C. § 2466 (2006) (allowing officials

to use the Doctrine in civil forfeiture proceedings related to criminal forfeiture actions).
17 See generally Bonahan v. Nebraska, 125 U.S. 692 (1887) (utilizing the precedent created by

Smith to set aside petitioner’s motion after his escape from custody); Smith v. United States, 94
U.S. 97 (1876) (creating the origin of the Doctrine).
18 See, e.g., Estelle v. Dorrough, 420 U.S. 534, 540–41 (1975) (providing that states can enact

statutes that automatically invoke the Doctrine when one is designated a fugitive); Molinaro
638 New England Law Review [Vol. 51|3

to using the Doctrine in civil forfeitures, as it refused to extend the Doctrine


to that area of law. 19

1. Smith v. United States

In Smith v. United States, the Court, for the first time, formally
articulated that it was within its discretion to reject an appeal when a
convict escapes custody. 20 The Court stated that it had no way of ensuring
that its decision of whether to uphold the conviction or order a new trial
would be honored as the appellant was out of the Court’s jurisdictional
reach due to his escape. 21 The appellant had been ordered to submit
himself to the custody of the lower court before the Court’s next term or his
motion would be refused to be heard. 22 This notion was reaffirmed a
decade later in Bonahan v. United States. 23

2. Molinaro v. New Jersey

Almost a century later, the Court in Molinaro refused to adjudicate the


case because the appellant had escaped custody. 24 The appellant appealed
a conviction of abortion and conspiracy to commit the same. 25 Though the
appellant was free on bail during the proceedings, he failed to surrender
himself to the authorities; his bail was revoked and he was considered to
be a fugitive. 26 Relying on Smith and Bonahan, the Court, invoking the
Doctrine, refused to adjudicate the appellant’s case. 27 The Court stated that
there was no reason not to dismiss the case at that present moment instead
of waiting for the next term, as in the previous cases. 28

v. New Jersey, 396 U.S. 365, 365 (1970) (stating that the Doctrine is still a valid mechanism).
19 See generally Degen, 517 U.S. at 823 (refusing to extend the Doctrine to civil matters).

20 See Smith, 94 U.S. at 97.

21 Id.

22 Id. at 97–98.
23 Bonahan v. Nebraska, 125 U.S. 692, 692 (1887) (holding that the Doctrine bars the Court

from rendering a decision until an appellant avails himself to the custody of the lower court);
see also Bonahan v. Nebraska, 24 N.W. 390, 391–92, 399 (Neb. 1885) (holding that the
appellant’s own motion to set aside the first jury’s verdict in order to have a new trial negated
the first verdict’s effect to act as an acquittal of first degree murder).
24 See Molinaro v. New Jersey, 396 U.S. 365, 365–66 (1970) (stating that there were no

persuasive reasons to hear the case, as the appellant could not ignore the restraints placed on
him by the Court while also expecting to receive a benefit).
25 Id. at 365.

26 Id.

27 See id. at 366.

28 Id. (stating that because the basic threshold to apply the Doctrine had been met, there

was no need to wait until the end of the term to officially dispose of the case).
2017] Fugitive Disentitlement Doctrine 639

3. Estelle v. Dorrough

In Estelle, the Court determined that state legislatures could enact


statutes that would automatically apply the Doctrine when a defendant
escapes custody during the appellate process. 29 Dorrough, the respondent,
was originally convicted of robbery and sentenced to twenty-five years in
prison in the State of Texas. 30 After filing an appeal, Dorrough escaped
from prison, though he was recaptured a couple days later and
subsequently tried and convicted on federal charges. 31 After being
recaptured, the Texas Court of Criminal Appeals removed the appeal from
its docket relying on a statute 32 that codified the Doctrine. 33 The case made
its way up to the Supreme Court, which stated that the state legislature
was justified in dealing “severely with those who simultaneously invoked
the appellate process and escaped from its custody [rather] than with those
who first escaped from its custody, returned, and then invoked the
appellate process within the time permitted by law.” 34 The Court also
iterated that states are allowed to adopt procedures or statutes to deter
prisoners from escaping, which in turn permits states to issue severe
sanctions in order to effectuate such a deterrence. 35

4. Ortega-Rodriguez v. United States

The Court in Ortega-Rodriguez recognized the theories for the existence


of the Doctrine, but also required a nexus between the fugitive status and
the appellate process. 36 The appellant was convicted with two others for
the possession and intent to distribute cocaine. 37 The appellant was not
present for the sentencing phase and therefore was sentenced in abstentia. 38
The appellant was caught a year later, and during this time one of the co-
defendants successfully appealed his conviction for lack of evidence. 39 The
appellant filed his appeal on the same theory of lack of evidence, though
the case was dismissed due to his fugitive status after the initial

29 See Estelle v. Dorrough, 420 U.S. 534, 541 (1975).


30 Id. at 534.
31 Id. at 534–35.
32 TEX. CRIM. PROC. ANN. art. 44.09 (West 1965) (repealed 1986).
33 See Estelle, 420 U.S. at 535.
34 Id. at 541.
35 See id.
36 See Ortega-Rodriguez v. United States, 507 U.S. 234, 240, 244 (1993).
37 Id. at 237.
38 Id.
39 See id. at 238.
640 New England Law Review [Vol. 51|3

sentencing. 40
In its review of this case, the Court recognized there are two main
theories for employing the Doctrine: (1) enforceability issues, and (2)
disentitlement theory. 41 The Court also recognized that the Doctrine has
expanded, such that it disentitles someone to an appeal before even
beginning the appellate process. 42 In response to this particular extension
of the Doctrine, the Court clarified that in order for the Doctrine to apply
there must be a nexus between the fugitive status and the appellate court;
thus when one escapes custody before filing an appeal the Doctrine should
not be used to bar such appeal. 43 The reason for this limitation, as
articulated by the Court, is that enforceability concerns fade when a
fugitive has been recaptured before sentencing and the beginning of the
appeals process. 44 Therefore, an appellant would be within the authority
and control of the appellate court. 45 Based upon this reasoning, the Court
reversed the decision of the court of appeals, holding that the appellant’s
fleeing prior to filing an appeal had not placed an obstacle in the appellate
review rendering the invocation of the Doctrine unnecessary. 46

5. Degen v. United States

In Degen, the Court dealt with the issue of whether the Doctrine should
extend to civil forfeiture proceedings related to criminal proceedings. 47
Degen, a citizen of both the United States and Switzerland, faced criminal
indictment charges of distributing marijuana and money laundering. 48 At
the same time, the government initiated a civil forfeiture action against him
for money related to the illegal activities. 49 Before both proceedings took
place, Degen moved to Switzerland, which because of its treaty with the
United States did not require Switzerland to turn over its nationals. 50 After
learning about the civil suit, Degen filed an answer to the complaint to

40 Id. at 239.
41 See id. at 240.
42 See Ortega-Rodriguez, 507 U.S. at 242–44.

43 See id. at 244–47; see also Russo, supra note 4, at 1049, 1077.

44 See Ortega-Rodriguez, 507 U.S. at 244.

45 See id.

46 See id. at 247, 251 (explaining that when someone flees from the authority and control of

a district court there are different tools that the court may use at its discretion, while an
appellate court only has the severe sanction of dismissal).
47 Degen v. United States, 517 U.S. 820, 821 (1996).
48 Id. at 821–22.
49 See id. at 821.
50 Id. at 822.
2017] Fugitive Disentitlement Doctrine 641

contest the forfeiture of his assets. 51 The government then filed a motion for
summary judgment asking the Court to dismiss the case based on Degen’s
fugitive status. 52
In its decision, the Court reiterated the Doctrine’s applicability in
criminal matters, but cautioned that the judiciary’s continued expansion of
the Doctrine stretched beyond its authority. 53 The Court stated that in order
for the Doctrine to apply the fugitive needs to be offending the dignity of the
court trying to impose the sanction. 54 The Court noted that because the
properties in Nevada, California, and Hawaii were within the authority
and control of the civil court, even with Degen’s absence, there was no
threat of wasting time on an unenforceable judgment. 55 Moreover, because
the Doctrine is such a severe sanction, its implementation in this context
could actually work against the courts’ best interest: diminishing respect
for their judgments. 56 Thus, the Court reversed the decision of the court of
appeals, and allowed the civil forfeiture proceeding to continue. 57

B. Congress’ Reaction to Degen

A few years after Degen was decided, the United States Congress
(Congress) enacted a statute that allows the Doctrine to be applied to civil
forfeiture actions if the action is related to criminal proceedings. 58 Congress
created 28 U.S.C. § 2466 in response to the Supreme Court’s reluctance to
expand the Doctrine in Degen. 59 The language of § 2466 does not require
that a court apply the Doctrine, but rather allows that court to do so if it
finds that the elements in the statute have been met and the sanction has
been deemed reasonable. 60

51 See id.
52 See id. (observing the district court’s holding that Degen was disentitled to be heard in
the civil forfeiture action because he stayed outside of the United States and avoided criminal
prosecution).
53 See Degen, 517 U.S. at 823 (suggesting that any further expansion should be left to the
other branches of government).
54 See id. at 825.
55 See id. at 821, 825 (stating that the government had established enough probable cause
for the civil court to have jurisdiction over the matter).
56 See id. at 828 (explaining that respect for courts’ decisions will be undermined if cases are

too regularly adjudicated not based on their merits).


57 See id. at 829.
58 28 U.S.C. § 2466 (2012), amended by 28 U.S.C. § 2466 (2012).
59 See Degen, 517 U.S. at 823 (explaining that the judiciary has limits on its inherent powers,

which “may be controlled or overridden by statute or rule."). See generally 28 U.S.C. § 2466
(2000), amended by 28 U.S.C. § 2466 (2006) (extending the Doctrine to civil forfeiture matters).
60 See 28 U.S.C.§ 2466 (2012) (“A judicial officer may disallow a person from using the

resources of the courts of the United States in furtherance of a claim in any related civil
642 New England Law Review [Vol. 51|3

II. The Circuits’ Split: How Much Evidence is Required to be Labeled a


Fugitive?

Four years after § 2466 was enacted, the Second Circuit Court of
Appeals was one of the first jurisdictions to interpret the reaches of the
statute in Collazos v. United States. 61 In Collazos, the Government had a
warrant to search a business premise in Texas, which turned up evidence
of fake bank accounts linked to fake identities. 62 A wire-tap was then
issued and revealed discussions between the claimant and another party
about money transfers in regard to the fake accounts. 63 In 1999, the
Government obtained a warrant to freeze the claimant’s New York
account 64 due to its alleged connection with illegal money laundering
activity for drug trafficking. 65 The previous year, a grand jury in Texas
issued an indictment for the claimant for “engaging in the business of
currency transmission without a license.” 66 The claimant refused to appear
for depositions even after being ordered to by the civil court. 67
Correspondence between the parties suggest that the claimant did not
enter the United States in order to avoid being arrested for the Texas
charges. 68 The civil court proceeded to dispose of the claimant’s case under
the authority granted by § 2466. 69
The claimant appealed the dismissal of her complaint to the Second
Circuit. 70 The appellate court held that the civil court’s decision to invoke
§ 2466 to dismiss the case was not an abuse of discretion. 71 The Court stated
that the plain meaning of the statute does not require one to be a fugitive at
common law, 72 as the word fugitive does not appear in the text of the

forfeiture action or a claim in third party proceedings in any related criminal forfeiture action .
. .”) (emphasis added).
61 Collazos v. United States, 368 F.3d 190, 192 (2d Cir. 2004).
62 See id. at 193.
63 Id.
64 See id. at 192–93. The claimant lived in Cali, Colombia and had never entered in the

United States. Id. at 196.


65 See id. at 193.
66 Id. at 194.
67 See Collazos, 368 F.3d at 194.

68 Id.

69 Id. at 195.

70 Id. at 192.

71 See id.

72 See id. at 197. The claimant argued that since she had not physically been in the

jurisdiction when a crime was committed, and therefore had not fled nor concealed herself
from the jurisdiction, she did not fit the fugitive definition. Id. at 195–96.
2017] Fugitive Disentitlement Doctrine 643

statute. 73 The Second Circuit further maintained that § 2466 contains five
prerequisites that must be met before it can be utilized by a court. 74 The
Court held that the claimant fit within the definition of the statute because
her criminal conduct outside of the United States subjected her to
prosecution within the United States; the defendant knew her arrest was
sought but deliberately refused to enter the United States in order to avoid
prosecution. 75 This phrase, “in order to avoid prosecution,” has led to
controversy among the circuit courts about what level of intent is required
to be shown by the government to invoke § 2466. 76

A. Avoiding Criminal Prosecution as “A” Reason to be Labeled a Fugitive

The claimant’s intent to avoid prosecution is a reason to be considered


in the determination of fugitive status, as adopted by the Second and Ninth
Circuits. 77 This means that when a court analyzes the underlying facts of
the case, if the claimant had knowledge about a warrant for their
apprehension and evaded such apprehension, then the government has
met its burden of proof under § 2466. 78

1. United States v. Technodyne LLC

A decade after its Collazos decision, the Second Circuit heard another
case dealing with § 2466. 79 The claimant, Technodyne LLC (Technodyne)
was a company solely owned by the Allens who were United States

73 See Collazos, 368 F.3d at 196–97.


74 Id. at 198 (“[T]he statute identifies five prerequisites to disentitlement: (1) a warrant or
similar process must have been issued in a criminal case for the claimant's apprehension; (2)
the claimant must have had notice or knowledge of the warrant; (3) the criminal case must be
related to the forfeiture action; (4) the claimant must not be confined or otherwise held in
custody in another jurisdiction; and (5) the claimant must have deliberately avoided
prosecution by (A) purposefully leaving the United States, (B) declining to enter or reenter the
United States, or (C) otherwise evading the jurisdiction of a court in the United States in
which a criminal case is pending against the claimant.”).
75 See id. at 205.

76 See supra text accompanying note 9.

77 See generally United States v. Technodyne LLC, 753 F.3d 368 (2d Cir. 2014) (stating that

avoiding criminal prosecution by leaving and refusing to reenter the United States does not
have to be the claimant’s sole intent in order for the Doctrine to apply); United States v.
$671,160.00 in U.S. Currency, 730 F.3d 1051 (9th Cir. 2013) (holding that other factors that led
the claimant to leave and refuse to return to the United States do not render the Doctrine
inapplicable if there was a conscious choice to flee and not reenter the country to avoid
criminal prosecution).
78 See Technodyne LLC, 753 F.3d at 383–86; $671,160.00 in U.S. Currency, 730 F.3d at 1056–57.

79 See Technodyne LLC, 753 F.3d at 368; see also 28 U.S.C. § 2466 (2006) (providing that the

statute now applies to corporations through majority shareholders).


644 New England Law Review [Vol. 51|3

citizens. 80 The Allens were indicted on charges of wire fraud, bribery, and
money laundering for overbilling practices through Technodyne in
connection with a project for New York City. 81 They were served with
subpoenas to testify and to produce documents at a grand jury hearing;
they did not show up. 82 Eventually, the Allens left the United States for
India. 83 After a second failed appearance in April 2011, bank accounts were
frozen, indictments were issued, and the Government thereafter filed a
civil forfeiture action predicated on § 2466. 84 The Allens filed an opposition
through their counsel, stating that they had left the United States for
business reasons and prior to discovering that they were the targets of a
criminal investigation. 85 The district court ultimately granted the
Government’s motions for default judgments in 2013. 86
On appeal, the Second Circuit outlined the five factors articulated in
Collazos, stating that a claimant’s intent can be determined from evaluating
the totality of the circumstances. 87 The Court clarified that even if all five
prerequisites of the statute are met, a court does not have to automatically
conclude that the claimant is disentitled from having his action heard, as
such a decision is discretionary. 88 It also provided that the Government
need not show that it was the “sole, principal, or dominant intent” of the
claimant to avoid criminal prosecution; the government’s burden of proof
would be sufficiently satisfied just as long as it was a reason. 89 In affirming
the district court’s disposition of the case, the Second Circuit stated “[t]he
existence of other factors . . . does not undermine or foreclose the district
court’s finding that [the claimant] made a conscious choice to not ‘enter or
reenter the United States’ in order to avoid criminal prosecution.” 90

80 Technodyne LLC, 753 F.3d at 371.


81 Id.
82 Id. at 372.
83 See id. (explaining that in 2011, the wife, Padma, left for India in mid-February, and that

the husband, Reddy, first traveled to Indonesia and then to India in March).
84 See id. at 372–73.
85 Id. at 373–74 (providing alternative explanations for remaining outside the United States,
for example, since their assets had been frozen they could not afford to go home and had to
beg other people to fly their children to India).
86 Technodyne LLC, 753 F.3d at 376.

87 Id. at 378.

88 Id. at 382.

89 Id. at 383.

90 Id. at 384, 386 (quoting United States v. $671,160.00 in U.S. Currency, 730 F.3d 1051, 1056,

n.2 (9th Cir. 2013)).


2017] Fugitive Disentitlement Doctrine 645

2. United States v. $671,160.00 in U.S. Currency

In 2013, the Ninth Circuit had to determine whether the Doctrine,


codified through § 2466, applies in situations where someone is legally
outside the United States. 91 Mike Ionita, the appellant and a Canadian
citizen, was apprehended during a traffic stop in a rental car in California
for failing to signal when making a lane change. 92 During the ensuing
search, money was found in the trunk of the car and seized, 93 but Ionita
was allowed to return home to Canada. 94 The Government then initiated
criminal proceedings against Ionita for violating the California Health &
Safety Code by having over $100,000 as a result of drug trafficking. 95
Simultaneously, the Government began a civil forfeiture proceeding for the
money seized from the car. 96 Ionita contested the civil forfeiture action by
representation through his attorney. 97 In response, the Government filed a
motion with the district court to invoke the Doctrine, which was granted. 98
Ionita appealed to the Ninth Circuit. 99
The Ninth Circuit began by listing the five Collazos elements. 100 Ionita
conceded that all the elements had been met except for one: being a
fugitive. 101 He contended that since he left the United States before a
warrant was issued for his arrest, he was not evading jurisdiction but
rather was just going home. 102 The Ninth Circuit declined to accept Ionita’s
argument, declaring instead that one could still be considered a fugitive
due to the language of § 2466. 103 The Court then stated that the totality of
the circumstances is the proper test to apply in order to determine whether
one is intentionally avoiding criminal proceedings. 104 This infers that

91 See $671,160.00 in U.S. Currency, 730 F.3d at 1056 (outlining Ionita’s argument that he

was legally outside of the United States because he returned to his home in Canada).
92 Id. at 1054 (noting that Ionita was observed exchanging luggage with a known narcotics

dealer by police officers who called for a marked police car to follow Ionita’s car).
93 Id. (stating that the officer used a drug sniffing canine to obtain probable cause to search
the luggage).
94 Id. at 1055.

95 Id. (observing that a felony arrest warrant was issued for Ionita due to his violation of a

California Health & Safety law).


96 Id.
97 See $671,160.00 in U.S. Currency, 730 F.3d at 1055.
98 Id.

99 Id.

100 See id. at 1055–56.

101 Id. at 1056.

102 See id.

103 $671,160.00 in U.S. Currency, 730 F.3d at 1056.

104 Id.
646 New England Law Review [Vol. 51|3

avoiding prosecution only needs to be a reason rather than the sole reason
to make § 2466 applicable. 105 The Court explained that Ionita’s “conscious
choice” to remain outside the jurisdictional reach of the United States
statutorily classified him as a fugitive. 106 The Ninth Circuit held that the
district court properly applied the Doctrine, and its grant of a default
judgment was proper. 107

B. Avoiding Criminal Prosecution as “The” Reason to be Labeled a


Fugitive

The other interpretation for the burden of proof that has been adopted
by the D.C. and Sixth Circuits, is that the claimant’s intent to avoid criminal
prosecution needs to be the reason for not subjecting oneself to the court’s
jurisdiction. 108 This means that when a court applies the Doctrine, that
court must consider all underlying factors and give proper weight
accordingly. 109

1. United States v. $6,976,934.65, Plus Interest Deposited into


Royal Bank of Scotl. Int’l, Account No. 2029-56141070,
Held in the Name of Soulbury Ltd.

In 2009, the D.C. Circuit had its first entanglement with the latest
version of § 2466, using the new clause to hold that the fugitive status of a
majority shareholder disentitled a corporation from contesting a civil
forfeiture. 110 William Scott was the majority shareholder of Soulbury
Limited (Soulbury). 111 While living abroad he became a suspect in creating
an illegal online gambling site in the Caribbean directed at United States
residents. 112 In 1998, a criminal complaint was filed against him. 113 An
interview with Scott that aired in 2001, indicated that he knew about the

105 See id. at 1056–57.


106 Id.
107 Id. at 1060.
108 See generally United States v. $6,976,934.65, Plus Interest Deposited into Royal Bank of

Scot. Int’l, Account No. 2029-56141070, Held in the Name of Soulbury Ltd., 554 F.3d 123 (D.C.
Cir. 2009) (determining that the plain language of § 2466 requires the defendant’s intentional
avoidance of a criminal prosecution in order for the Doctrine to apply); United States v. Salti,
579 F.3d 656, 663 (6th Cir. 2009) (adopting the D.C. Circuit’s holding).
109 See $671,160.00 in U.S. Currency, 730 F.3d at 1057–58.
110 See $6,976,934.65, Plus Interest Deposited into Royal Bank of Scot. Int’l, Account No. 2029-
56141070, Held in the Name of Soulbury Ltd., 554 F.3d at 124–25; see also 28 U.S.C. § 2466(b)
(2012).
111 $6,976,934.65, Plus Interest Deposited into Royal Bank of Scot. Int’l, Account No. 2029-

56141070, Held in the Name of Soulbury Ltd., 554 F.3d at 125.


112 See id.
113 Id.
2017] Fugitive Disentitlement Doctrine 647

complaint, but did not answer it. 114 Eventually, the complaint went stale. 115
The Government then filed a civil forfeiture action for $6,976,934.65, plus
interest from Soulbury. 116 In 2005, a criminal indictment and arrest warrant
was issued for Scott but kept under seal until 2006. 117 In response, Soulbury
filed a claim to contest the forfeiture. 118 This prompted the Government to
file a motion to dismiss through the application of the Doctrine. 119 The
Government’s motion was granted in 2007; Soulbury appealed. 120
The D.C. Circuit began its analysis by supplying a history of the
development of the Doctrine. 121 It then listed the Collazos elements and also
stated that the last element could be satisfied in three different manners: (1)
purposely leaving the jurisdiction, (2) declining to enter the jurisdiction,
and (3) otherwise evading the authority and control of the jurisdiction. 122
The Court then declared that the plain reading of § 2466 “requires the
government to show ‘that avoiding prosecution is the reason [that one] has
failed to enter the United States and has otherwise evaded its
jurisdiction.’” 123 It clarified that “mere notice or knowledge” of the warrant
taken together with the person’s refusal to enter the country does not
satisfy the statutory requirements of § 2466. 124 In light of this framework,
the D.C. Circuit reversed the district court’s granting of the Government’s
motion for summary judgment as there was a genuine issue of fact as to
whether the Doctrine was applicable. 125

114 See id. (“He appeared in an episode of the Canadian television newsmagazine the fifth

estate, broadcast in 2001, about the rise of Internet gambling. The report featured Scott's
operation of several gambling websites and mentioned the pending criminal charges against
him. When the reporter interviewing him stated that there was a warrant out for his arrest,
Scott responded, ‘No, . . . no . . . well you can call it warrant. There is a criminal complaint.
Complaint. I have not been indicted. It's a complaint. Which means, yes, if I would go to the
U.S., I would probably be arrested.’”).
115 Id.
116 Id.
117 See $6,976,934.65, Plus Interest Deposited into Royal Bank of Scot. Int’l, Account No. 2029-

56141070, Held in the Name of Soulbury Ltd., 554 F.3d at 126.


118 Id.

119 See id.

120 Id.

121 See id. at 126–28.

122 See id. at 131.

123 $6,976,934.65, Plus Interest Deposited into Royal Bank of Scot. Int’l, Account No. 2029-

56141070, Held in the Name of Soulbury Ltd., 554 F.3d at 132.


124 Id.
125 See id. at 132–33 (stating that there were issues of whether Scott had notice of the 2005
criminal proceedings, and questioning whether the 1998 criminal proceedings could still be
viable against him, and that the only evidence of intent was his 2001 interview, which was
ambiguous at best).
648 New England Law Review [Vol. 51|3

2. United States v. Salti

During the same year that $6,976,934.65, Plus Interest was decided by
the D.C. Circuit, the Sixth Circuit also had a case dealing with the Doctrine
and how to determine the claimant’s intent to avoid criminal
prosecution. 126 A Swiss bank account belonging to Mohammed Al
Ammouri and his wife, Usrah Mary Salti, was seized as a result of a plea
agreement signed by their nephew. 127 The couple filed a complaint to
contest the civil forfeiture, which was countered by the Government’s
motion to dismiss based on the Doctrine. 128 The district court granted the
Government’s motion, which was appealed. 129
In its review of the district court’s decision, the Sixth Circuit relied on
the D.C. Circuit’s decision in $6,976,934.65, Plus Interest. 130 In particular, the
Sixth Circuit adopted the D.C. Circuit’s test for the fifth Collazos element to
label someone as a fugitive, requiring that the Government show that
avoidance of criminal prosecution was the intent of the potential fugitive. 131
The Court reversed the district court’s granting of the Government’s
motion to dismiss since there was a factual dispute as to whether Al
Ammouri was deliberately avoiding prosecution due to his poor health
condition. 132 The Court also articulated that once the district court has
evaluated all relevant facts, especially the health information, it could still
arrive at the conclusion that the Doctrine applies. 133

126 See generally United States v. Salti, 579 F.3d 656 (6th Cir. 2009).
127 See id. at 659 (explaining that the nephew’s plea agreement stated that he forfeited all
property, real or personal, traceable from his illegal conduct for food stamp fraud and money
laundering, which the Government asserted the Swiss bank account fit within the parameter
of the agreement).
128 See id. at 660–61 (noting the Government’s assertion that Al Ammouri was part of the

money laundering scheme).


129 Id. at 661.
130 See id. at 664.
131 Id. (“We are persuaded by the D.C. Circuit's recent reversal of a district court's

application of the fugitive disentitlement statute, on the Government's motion for summary
judgment, where the district court had disallowed a claim in a forfeiture proceeding.
Discussing the fifth disentitlement element, the D.C. Circuit found that the district court erred
in holding that the government need not show “that avoiding prosecution is the reason [the
individual] has failed to enter the United States and has otherwise evaded its jurisdiction.”
(internal quotations omitted)) (internal citations omitted).
132 See United States v. Salti, 579 F.3d 656, 665–66 (6th Cir. 2009).
133 See id. at 666.
2017] Fugitive Disentitlement Doctrine 649

ANALYSIS

III. Policy Concerns and The Response the Supreme Court Should Have

The government has a tool in its arsenal in which it tries to cripple


criminal enterprises: civil forfeiture. 134 Civil forfeiture is an in rem action
that targets property instead of an individual, as there is a legal fiction
deeming such property as “guilty property.” 135 The procedure of civil
forfeiture tends to be easy with a low evidentiary standard to seize such
tainted property. 136 There are many concerns about the use of the Doctrine
in conjunction with civil forfeiture actions. 137 The main concerns are police
abuse of the tool, and the difficult process of trying to get back property
that has been seized. 138

A. Police Abuse of Civil Forfeiture Procedures

The police and other law enforcement agencies have a strong incentive
to use civil forfeiture proceedings as they get to keep or sell property that is
seized. 139 An underlying criminal charge is not required to initiate a civil
forfeiture proceeding, resulting in the risk of police seizing property when
they have little-to-no evidence to support a criminal charge for the
individual. 140 The justification for this low evidentiary burden is public
safety—by going after the money feeding the criminal enterprise, the
power and influence of that organization will fade. 141

134 See Colin May, Asset Seizure and Forfeiture: A Basic Guide, FED. BUREAU INVESTIGATION

(Aug. 10, 2016), https://perma.cc/ZW7F-TGTQ.


135 Shannon T. Noya, Comment, Hoisted by Their Own Petard: Adverse Inferences in Civil

Forfeitures, 86 J. CRIM. L. & CRIMINOLOGY 493, 495 (1996); see also Timothy J. Ford, Note, Due
Process for Cash Civil Forfeitures in Structuring Cases, 114 MICH. L. REV. 455, 457 (2015).
136 See Matthews, supra note 6.

137 See Kanya Bennett & Nkechi Taifa, There is Bipartisan Agreement on the ‘Uncivility’ of Civil

Asset Forfeiture, AM. C.L. UNION (Apr. 20, 2015, 3:00 PM), https://perma.cc/JHY5-G62A.
138 See Asset Forfeiture Abuse, AM. C.L. UNION, https://perma.cc/TZ47-AVP6 (last visited July

11, 2017).
139 Karis Ann-Yu Chi, Comment, Follow the Money: Getting to the Root of the Problem with

Civil Asset Forfeiture in California, 90 CAL. L. REV. 1635, 1645 (2002); see also Asset Forfeiture
Abuse, supra note 138.
140 See May, supra note 134.
141 See Asset Forfeiture Program, DEP’T. JUSTICE, https://perma.cc/P4G5-NPGR (last visited
July 11, 2016) (“The primary mission of the Program is to employ asset forfeiture powers in a
manner that enhances public safety and security. This is accomplished by removing the
proceeds of crime and other assets relied upon by criminals and their associates to perpetuate
their criminal activity against our society. Asset forfeiture has the power to disrupt or
dismantle criminal organizations that would continue to function if we only convicted and
incarcerated specific individuals.”); see also Asset Forfeiture Abuse, supra note 138.
650 New England Law Review [Vol. 51|3

Unfortunately, this justification of public safety gets lost in the world of


greed. 142 The objectives of the police and other law enforcement agencies
tend to shift from preventing crime to making a profit, since police
departments keep most of what is seized. 143 This shift in focus of police
responsibility allows for the cherry picking of targets. 144 A tragic example is
the story of Donald Scott. 145 In 1992, Donald Scott, a millionaire with a two
hundred acre ranch, was shot and killed by police executing a search
warrant for marijuana plants. 146 There was no evidence of any marijuana
plants or any other criminal activity. 147 The main motivation behind the
intrusion into Scott’s home was to seize his ranch and sell it to the National
Park Service. 148 The police department would then be able to use the profit
from the sale for its own budget. 149
Another concern with allowing police to cherry pick targets for civil
forfeitures is the disparate impact on communities, especially minority
communities. 150 This disparate impact is an effect of racial profiling which
is used in order to determine who criminals are. 151 The reasoning for
targeting minorities is that their behavior is supposedly more in line with
behavior that is connected to criminal activity, for example Latinos being
drug mules. 152 As the stated goal of civil forfeiture is to eliminate criminal
enterprises, and minorities are more associated to such organizations, then
their property is more likely to be seized than whites. 153 But, the statistics
point out that this reasoning is flawed because whites are equally or more
likely to have evidence of criminal activity in their possession than
minorities. 154 In the end, civil forfeiture practices tend to expand inequality

142 See Chi, supra note 139, at 1645; Murphy, supra note 7, at 79.
143 See Chi supra note 139, at 1645; Murphy, supra note 7, at 79.
144 See Chi, supra note 139, at 1646.

145 See infra notes 146–49 and accompanying text.

146 See Chi, supra note 139, at 1646.

147 See Chi, supra note 139, at 1646–47 (basing the warrant on faulty information just to gain

probable cause in order to seize the property).


148 See Chi, supra note 139, at 1647 (detailing that the National Park Service had previously

tried to buy the land, but failed).


149 See Matthews, supra note 6 (listing other uses of the “profits” such as salaries, bonuses,

and constructing buildings).


150 See Murphy, supra note 7, at 90.
151 Murphy, supra note 7, at 90.
152 See Murphy, supra note 7, at 91.

153 See Murphy, supra note 7, at 93; Asset Forfeiture Program, supra note 141.

154 Murphy, supra note 7, at 91 (pointing to a study in Maryland that showed 28% of both

blacks and whites have narcotics in their cars, while another study in New Jersey showed that
as many as 25% of whites, but only 13% of blacks have narcotics in their cars).
2017] Fugitive Disentitlement Doctrine 651

among the races. 155


Some states have enacted statutes to try and combat these abuses by
police by limiting how such property is to be used. 156 Unfortunately, these
statutes have loopholes that are exploited by police and federal agencies. 157
These loopholes are called “equitable sharing” schemes, where federal law
is used to seize the property, but most of what is seized (approximately
80%) is left to local authorities, and state law has no control over this
distribution. 158 The exploitation of the equitable sharing schemes
perpetuates the concern about police abuse, as the profits from the civil
forfeitures allows police to be in charge of their own budgets without
relying on budgets controlled by local and state legislatures. 159 In the end,
there is no oversight of police action which allows for heavy usage of civil
forfeitures with little constraints. 160

B. The Process for Reclaiming Property Is Too Difficult

Once a person’s property has been seized through civil forfeiture


proceedings, getting the property back is a fight. 161 The burden is upon the
owner to prove that the property is “innocent.” 162 Most people do not
contest civil forfeitures because the effort to retake the property is not
worth it. 163 But if they do want to take on the fight, the owners have to
assert their rights to the property in a civil court proceeding, 164 which is
often costly, and they are not entitled to have counsel. 165 An example of this
is Terry Dehko, a grocery store owner in Michigan. 166 The Internal Revenue
Service (“IRS”) suspected Dehko of using the grocery store as a money-
laundering front, as he deposited money every night into the store’s bank
account. 167 The IRS seized the store’s bank accounts, and Dehko had to

155 Position Paper: Race and the War on Drugs, ACLU: DRUG POL’Y LITIG. PROJECT,

https://perma.cc/4GHP-4SUM (last visited July 11, 2017).


156 See Murphy, supra note 7, at 81–82 (stating that eight states prohibit any distribution of

property seized to law enforcement).


157 See Murphy, supra note 7, at 82–83; Tim Walberg, Stopping the Abuse of Civil Forfeitures,
WASH. POST (Sept. 4, 2014), https://perma.cc/25UE-U6SA.
158 Murphy, supra note 7, at 81–82; see also Matthews, supra note 6; Walberg, supra note 157.

159 See Chi, supra note 139, at 1636; Murphy, supra note 7, at 89.

160 See Chi, supra note 139, at 1636.

161 See Bennett & Taifa, supra note 137.

162 Bennett & Taifa, supra note 137

163 See Bennett & Taifa, supra note 137

164 Ford, supra note 135.

165 Bennett & Taifa, supra note 137.

166 See Ford, supra note 135, at 455–56; Walberg, supra note 157.

167 Ford, supra note 135, at 456 (explaining that the reason that Dehko deposited less than

$10,000 per night into the store account had to do with his insurance policy, which only
652 New England Law Review [Vol. 51|3

assert his property rights, but he was unable to pay his employees and
store bills. 168 Eventually, the IRS voluntarily dismissed the action, but
Dehko’s business was harmed from not being able to access the store
account for months. 169 In the end, the government gets to keep property it
seized on a suspicion of criminal activity, 170 while the owner is deprived of
his or her property because the process to regain it is too daunting. 171

C. Having a Stricter Standard for the Doctrine Would Decrease Civil


Forfeiture Abuse

The Doctrine is often used in conjunction with civil forfeitures since it


makes a relatively easy process even easier. 172 Since the government is able
to simultaneously have a criminal case and a civil case against someone
and his or her property, 173 being able to disentitle that person from having
standing in the civil case is an effective tool. 174 This symbiotic relationship
between civil forfeitures and the Doctrine means that the concerns about
the abuse of civil forfeitures are equally applicable to the Doctrine. 175 The
Doctrine actually allows law enforcement agencies to further cherry pick
their targets since they can choose people that are not likely to come into
the United States to answer criminal charges. 176
Attorneys Gary P. Naftalis and Alan R. Friedman have stated this
concern well: “[W]hen a defendant has failed to submit to a pending
criminal case, use of the judicial doctrine of fugitive disentitlement in a
related civil forfeiture proceeding against him constitutes ‘an excessive
response’ to his transgression.” 177 In order to curb the abuse of civil
forfeitures through the Doctrine, there must be a higher evidentiary burden

covered cash losses of $10,000); Walberg, supra note 157.


168 Ford, supra note 135, at 456.

169 Ford, supra note 135, at 456.

170 See Matthews, supra note 6.

171 See Bennett & Taifa, supra note 137 (“When property owners . . . muster the courage to

go up against the government, they find the deck is stacked against them.”).
172 See Noya, supra note 135, at 500.
173 See May, supra note 134 (describing the difference between in personam actions: criminal
cases, and in rem actions: civil forfeitures).
174 See Winsor, supra note 1, at 275.
175 See Collins, supra note 14, at 647–48.
176 See Gary P. Naftalis & Alan R. Friedman, Fugitive Disentitlement in Civil Forfeiture

Proceedings, 228 N.Y. L.J. 1, 3 (2002) (“[W]ith artful pleading the government could confiscate
all of a fugitive’s property, indeed even the property of some individuals who prove to be
non-fugitives, all on mere allegations.”) (emphasis added); see also Noya, supra note 135, at 501
(“[T]he government can arguably circumvent rights granted to individuals charged with
crimes.”).
177 Naftalis & Friedman, supra note 176.
2017] Fugitive Disentitlement Doctrine 653

to label someone a fugitive. The D.C. Circuit’s standard of requiring the


government to show that avoidance of the criminal prosecution was the
sole reason behind the claimant’s refusal to render him or herself to the
court’s jurisdiction 178 would be the best route to halt the abuse. The
government would no longer be able to simply check off boxes on its list
for obtaining property to create its own budget without exerting effort
based on evidence, rather than suspicion. 179 The Supreme Court should
adopt this stance, as it made clear in Degen, that disentitling someone’s
standing is a severe sanction which would otherwise make it easier for the
government to seize a person’s property, especially when there are many
concerns about the abuse of civil forfeitures. 180

CONCLUSION

The effect of employing the Doctrine to take away a person’s standing


in a civil case is both severe and effective, and often used by the
government. 181 The government’s exploitation in civil forfeiture
proceedings has created the need for a stricter standard to label one a
fugitive. The D.C. Circuit has achieved this by requiring that the
government provide evidence that the claimant’s intent to avoid criminal
prosecution was the sole reason for not answering the criminal charge. 182
This standard would hinder the ease by which law enforcement agencies
can seize property for their own means, which has been increasing every
year. 183 The Supreme Court should adopt this stance as well, since its own
precedent indicates its reluctance to expand the government’s power over

178 See United States v. $6,976,934.65, Plus Interest Deposited into Royal Bank of Scot. Int’l,

Account No. 2029-56141070, Held in the Name of Soulbury Ltd., 554 F.3d 123, 132 (D.C. Cir.
2009).
179 See id. (espousing that “Scott’s renunciation of his U.S. citizenship is insufficient without

some evidence that he took this action to avoid extradition.” (emphasis added)); see also
Matthews, supra note 6.
180 Degen v. United States, 517 U.S. 820, 828 (1996) (“The right of the citizen to defend his

property against attack in a court is corollary to the plaintiff's right to sue there. For this
reason we have held it unconstitutional to use disentitlement similar to this as punishment for
rebellion against the United States, or, in at least one instance, for contempt of court. We need
not, and do not, intimate a view on whether enforcement of a disentitlement rule under
proper authority would violate due process. It remains the case, however, that the sanction of
disentitlement is most severe and so could disserve the dignitary purposes for which it is
invoked.”); see also Naftalis & Friedman, supra note 176.
181 See Bennett & Taifa, supra note 137.

182 See $6,976,934.65, Plus Interest Deposited into Royal Bank of Scot. Int’l, Account No. 2029-

56141070, Held in the Name of Soulbury Ltd., 554 F.3d at 132.


183 See Bennett & Taifa, supra note 137; Asset Forfeiture Abuse, supra note 138.
654 New England Law Review [Vol. 51|3

the rights of the individual through use of the Doctrine. 184

184 See Degen, 517 U.S. at 828.