Fugitive Disentitlement Doctrine in Forfeiture Cases

In a civil asset forfeiture case, the Plaintiff might file a “complaint for forfeiture” in state or federal court. The Claimant then files a judicial claim, answer, and affirmative defenses. If the Claimant also has an outstanding arrest warrant related to the accusations that led to the forfeiture, the Plaintiff might file a motion to dismiss the judicial claim, answer, and affirmative defenses under the fugitive disentitlement statute. In federal cases, the fugitive disentitlement statute is 28 U.S.C. § 2466. Under state law in Florida, the fugitive disentitlement statute is Section 896.106, F.S.

The Claimant might respond to that motion by showing they are not refusing to surrender to the Court but instead are temporarily unable to surrender on the warrant because of factors outside of their control. For example, a foreign national living overseas might be unable to get a travel visa necessary to enter the United States legally. Sometimes, the government might agree to file for a parolee visa on their behalf.

The Claimant might request a stay until they can travel to the United States and voluntarily surrender in the criminal case. The motion to dismiss their claim on the fugitive disentitlement doctrine should not be granted if they can show they are not deliberately avoiding criminal prosecution by leaving the United States, declining to enter or reenter the country, or otherwise evading the criminal court’s jurisdiction.

Additionally, the Claimant might file a response asking the court to use its discretion to deny the motion to strike the claim because:

1. the evidence for forfeiture is weak; 
2. the Plaintiff is acting in bad faith or overreaching;
3. the Planitiff’s theory as to the asset does not appear to be well-founded;
4. the Plaintiff acted in bad faith;
5. the court lacks jurisdiction over the assets because neither the asset nor the claimant had any ties to the court’s jurisdiction;
6. the court has no control or constructive control over the property at issue in the civil forfeiture action;
   • the court would be violating the constitutional requirements of in rem jurisdiction;
   • the in rem judgment would violate the redressability doctrine;
7. the action violated the general-law rules of personal jurisdiction;
8. the fugitive disentitlement statute violates due process; or
9. the fugitive disentitlement statute does not apply to this particular Claimant.

The courts have found that it may be appropriate to consider the merits of the civil forfeiture case in determining whether to apply the disentitlement doctrine when there is evidence that the Government is overreaching or that the criminal charges were brought for the purpose of bolstering a related civil forfeiture case, see 146 Cong. Rec. S1753-02, *S1761 (March 27, 2000) (Senator Leahy) (“Opponents of the fugitive disentitlement doctrine say that the prosecutors have gone so far as to indict people whom they know will never return to this country, so that they can invoke the doctrine in civil forfeiture proceedings against such persons’ U.S. assets.”).

In United States v. Nasri, 119 F.4th 1172, 1178-1179 (9th Cir. 2024), the Ninth Circuit held that the district court’s exercise of in rem jurisdiction without a finding that it has control or constructive control over the defendant property violated the Due Process Clause of the United States Constitution.

In United States v. Krishnan’s Real and Personal Praperty, 2020 WL 3510688, *11-12 (E.D.N.C. Jun. 29, 2020), the court found it had a duty to exercise its discretion and decline to grant a motion to strike under § 2466 if the Government’s civil forfeiture case appears weak. It granted the motion to strike as to all assets but one. It held that because the Government’s money laundering forfeiture theory as to that asset does not appear to be well-founded, the motion should be denied as to that asset, and the civil case stayed under§ 981(g)(2)).

In United States v. Real Property Known as 3678 Waynesville Road, 2007 WL 1982780, *4 (S.D. Ohio 2007), the court denied the Government’s motion under § 2466 for lack of evidence that the claimant was aware of the warrant for his arrest, even though his attorney was aware of the warrant. That proof was not sufficient without evidence that the attorney passed the information on to the Claimant.

In United States v. $6,976,934.65 Plus Interest, 554 F.3d 123, 132 (D.C. Cir. 2009), the court found that “mere notice or knowledge of an outstanding warrant, coupled with refusal to enter the United States, does not satisfy the statute. The alleged fugitive must have declined to enter or reenter the country in order to avoid prosecution.”)

In United States v. Salti, 579 F.3d 656, 665-66 (6th Cir. 2009), the claimant’s assertion that he declined to enter the U.S. for health reasons, if true, would be a valid defense. The burden is on the Government to prove that the reason he declined to enter the U.S. was to avoid prosecution.

In United States v. Balm, 2011 WL 4708799, *9 (W.D. Tenn. June 27, 2011), the court refused to apply the fugitive disentitlement doctrine to a motion filed by a corporation controlled by a fugitive defendant because the Government could not show defendant’s reason for remaining in Vanuatu for nine years was to avoid prosecution.

History of the Fugitive Disentitlement Doctrine

The federal version of the “Fugitive Disentitlement Doctrine” began under the common law as a way for the courts “to dismiss appeals in criminal cases by defendants who had escaped custody after filing the appeal and were evading the jurisdiction of the court.” United States v. $6,976,934.65 (“Soulbury II“), 554 F.3d 123, 127 (D.C. Cir. 2009). In civil forfeiture actions, some courts applied the fugitive disentitlement doctrine to “dismiss a claim based on the fugitive’s evasion of a related, but separate, criminal proceeding.” Id.

In Degen v. United States, 517 U.S. 820, 116 S. Ct. 1777, 135 L. Ed. 2d 102 (1996), the Supreme Court determined that the use of fugitive disentitlement doctrine in civil matters was not permissible “[a]s a court-made rule.” Soulbury II, 554 F.3d at 127. In response, Congress enacted the fugitive disentitlement statute as part of the Civil Asset Forfeiture Reform Act (“CAPRA”), see Pub. L. No. 106-185, 114 Stat. 202 (2001), which states, in relevant part:

(a) 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 forfeiture action or a claim in third party proceedings in any related criminal forfeiture action upon a finding that such person–

(1) after notice or knowledge of the fact that a warrant or process has been issued for his apprehension, in order to avoid criminal prosecution–

(A) purposely leaves the jurisdiction of the United States;

(B) declines to enter or reenter the United States to submit to its jurisdiction; or

(C) otherwise evades the jurisdiction of the court in which a criminal case is pending against the person; and

(2) is not confined or held in custody in any other jurisdiction for commission of criminal conduct in that jurisdiction.

28 U.S.C. § 2466.

Under the fugitive disentitlement statute, “Congress specifically conferred statutory authority on federal courts to order disentitlement in civil forfeiture cases.” Collazos v. United States, 368 F.3d 190, 198 (2d Cir. 2004). A person might have no other reason to come to the United States other than to defend against criminal charges. Yet, through no fault of their own, they are unable to immediately make the trip because of factors outside of their control.

Procedures for Adjudicating Motions Under 28 U.S.C. § 2466

Section 2466 does not contain its own procedural standards. Instead, the courts often treat the motion like a motion to dismiss. The Courts sometimes look at matters outside the pleadings. In some cases, the courts have treated the motion as a motion for summary judgment. See United States v. $6,976,934.65 (“Soulbury I“), 478 F. Supp. 2d 30, 38 (D.D.C. 2007).

When considering a motion to dismiss under the fugitive disentitlement statute, the Ninth Circuit has considered a five-part test that tracks § 2466’s statutory requirements:

1. a warrant or similar process was issued in a criminal case for the claimant’s apprehension;
2. the claimant had notice or knowledge of the warrant or process;
3. the criminal case is related to the forfeiture action;
4. the claimant is not confined or otherwise held in custody in another jurisdiction; and
5. the claimant has deliberately avoided criminal prosecution by leaving the United States, declining to enter or reenter the country, or otherwise evading the criminal court’s jurisdiction.

Soulbury II, 554 F.3d at 128.

A finding that a claimant is a fugitive requires a finding that the claimant possessed the specific “intent to avoid criminal prosecution,” which is to say that the fugitive’s “evasion must have been ‘in order to avoid criminal prosecution.”‘ See Soulbury II, 554 F.3d at 132-33 (quoting id. § 2466(a)(1)).

This article was last updated on November 29, 2024.