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

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QUESTION PRESENTED

Whether the district court properly applied the
fugitive disentitlement doctrine to bar petitioner
from contesting a civil forfeiture.

(I)

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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)

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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

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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)

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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

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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.

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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.

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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,

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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

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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-

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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.

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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.

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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 &

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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

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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.

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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.

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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

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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

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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.

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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

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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

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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

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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)

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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-

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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.

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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.

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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

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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.

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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

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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

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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.

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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,

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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

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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

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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).

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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

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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).

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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

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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).

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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.

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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").

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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

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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

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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).

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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).

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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-

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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.

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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.

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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).

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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.

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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

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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.

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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").

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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).

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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

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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.

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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).

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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-

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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.

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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

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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").

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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

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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).

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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").

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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).

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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,

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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.

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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).

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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.

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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

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