1

United States Court of Appeals,

Fifth Circuit.

No. 96-50427.

UNITED STATES of America, Plaintiff-Appellee,

v.

REAL PROPERTY LOCATED AT 14301 GATEWAY BOULEVARD WEST, EL PASO

COUNTY TEXAS, with all Appurtunances and Improvements Thereon,

Defendant,

City of El Paso, et al., Claimants,

Eduardo Gonzalez Quirarte and Laura Patricia Gonzalez, ClaimantsAppellants.

Sept. 26, 1997.

Appeal from the United States District Court for the Western

District of Texas.

Before JONES, EMILIO M. GARZA and PARKER, Circuit Judges.

PER CURIAM:

The district court relied on the "fugitive disentitlement"

doctrine to strike Eduardo Gonzalez Quirarte's and Laura Patricia

Gonzalez's ("the claimants") claim and answer regarding the

forfeiture of the respondent property. The Supreme Court has since

held that the "fugitive disentitlement" doctrine does not permit a

district court to enter summary judgment in favor of the government

in a civil forfeiture case based on a claimant's fugitive status.

See Degen v. United States, --- U.S. ----, 116 S.Ct. 1777, 135

L.Ed.2d 102 (1996). Thus, the claimants urge us to reverse the

district court's forfeiture judgment based on Degen.

It is well-settled, however, that we will not reverse a

judgment of the district court if it can be affirmed on any ground,
2

regardless of whether the district court articulated the ground.

United Indus., Inc. v. Simon-Hartley, Ltd., 91 F.3d 762, 765 n. 6

(5th Cir.1996); see also Bickford v. International Speedway Corp.,

654 F.2d 1028, 1031 (5th Cir.1981) ("[R]eversal is inappropriate if

the ruling of the district court can be affirmed on any grounds,

regardless of whether those grounds were used by the district

court."). We have required strict compliance with the provisions

of Rule C(6) of the Supplemental Rules for Certain Admiralty and

Maritime Claims, the rule that governs the filing of claims and

answers in forfeiture suits. See United States v. $38,570 U.S.

Currency, 950 F.2d 1108, 1115 (5th Cir.1992) (finding that district

court did not abuse its discretion in striking claim and answer as

untimely under Rule C(6)).

Here, prior to ruling on the government's motion to strike the

claim and answer, the district court denied the claimants' request

for an extension of time in which to file their claim and answer.

As a result, the claim and answer that the claimants ultimately

filed were untimely. In granting the government's motion to

strike, however, the district court did not address the timeliness

of the filings.

Had the district court not specifically refused to extend the

claimants' filing deadlines, we could perhaps construe the court's

consideration of the merits of the motion to strike as an implicit,

discretionary grant of an extension. See Supplemental Rules for

Certain Maritime and Admiralty Claims, 28 U.S.C. Supplemental Rule

C(6) ("The claimant of property that is the subject of an action in
3

rem shall file a claim within 10 days after process has been

executed, or within such additional time as may be allowed by the

court ....") (emphasis added). To the contrary, however, the

district court denied the claimants an extension, thus indicating

the court's intention that the claimants adhere to the time limits

contained in Rule C(6). Accordingly, we will not construe the

district court's consideration of the merits of the motion to

strike as a discretionary extension of the filing deadlines.

Rather than reaching the merits of the motion, the district court

could have struck the claim and answer as untimely.

We AFFIRM on that ground.

EMILIO M. GARZA, Circuit Judge, specially concurring:

I write separately, joined by Judge Parker, to request the

Supreme Court to reconsider its opinion in Degen v. United States,

--- U.S. ----, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996), and consider

Degen's application on the southwestern border of the United

States.

Clearly, the Court did not consider the practical effects of

Degen's application peculiar to the southwestern border. In Degen,

a federal grand jury indicted Degen for distribution of marijuana,

money laundering and other crimes, and the government sought the

forfeiture of properties in California, Nevada and Hawaii allegedly

purchased with proceeds of Degen's drug sales or used to facilitate

the sales. Despite moving to Switzerland, a nation whose

extradition treaty did not oblige it return Degen to the United

States, Degen filed an answer in the civil action to contest
4

forfeiture. The district court granted a government motion to

strike Degen's answer and entered summary judgment against him,

holding that Degen was not entitled to be heard in the civil

forfeiture action because he remained outside the country,

unamenable to criminal prosecution. United States v. Real Property

Located at Incline Village, 755 F.Supp. 308 (D.Nev.1990). The

Ninth Circuit affirmed. United States v. Real Property Located at

Incline Village, 47 F.3d 1511 (9th Cir.1995).

The Supreme Court reversed the Ninth Circuit, holding that the

fugitive disentitlement doctrine did not permit the district court

to enter summary judgment in favor of the government in a civil

forfeiture case based on the claimant's fugitive status. The Court

found that the district court had alternative means of protecting

the government's interests and that therefore "the harsh sanction

of absolute disentitlement" was not justified. Degen, --- U.S. at

----, 116 S.Ct. at 1782. The Court concluded that "[a] court

made-rule striking Degen's claims and entering summary judgment

against him as a sanction [for failing to appear in the criminal

proceedings] ... would be an arbitrary response to the conduct it

is supposed to redress or discourage." Id. at ----, 116 S.Ct. at

1783.

Regardless of the merit of the Court's concern for avoiding

"an arbitrary response," the practical effect of the Court's

decision is to encourage immigration to a "safe" country by

creating a legal safe harbor for criminal defendants, an option

particularly attractive to those defendants who reside and operate
5

their criminal enterprises in the southwestern states. The

economy, recreation, history and people in Texas cities such as

Brownsville, Laredo, Eagle Pass, Del Rio and El Paso are virtually

integrated with their sister cities of Matamoros, Nuevo Laredo,

Piedras Negras, Cuidad Acuna and Juarez respectively; presumably

border cities in New Mexico, Arizona and California exhibit similar

integration with their Mexican counterparts. Mexican and American

citizens alike regularly cross the border to conduct business, to

purchase necessities, to enjoy entertainment, and to visit

relatives on "the other side." Indeed, for residents of border

communities, crossing the international bridge is akin to visiting

another part of town, not another nation. The international border

is a barrier only in the legal sense that different laws govern

each side of the line.

For the many United States district courts located in border

districts, however, the border compounds, rather than eliminates,

legal problems. Smuggling and its attendant crimes—whether they

involve cattle and horses in frontier times, cotton during the

Civil War, arms during the Mexican Revolution, whiskey during

Prohibition or narcotics in the late twentieth century—are endemic

to the southwest border. Control of crime along the southwestern

border is a constant struggle for the courts and law enforcement

organizations charged with that responsibility. Degen would further

encourage defendants to flout the laws of this nation and to

preserve both their liberty and their property by simply "moving

across town" to the other side of the border. The Court also
6

exacerbates the difficulties most trial judges have managing their

dockets. Even assuming the measures listed by the Court are

effective "means to resolve these dilemmas," id. at --, --- U.S. at

----, 116 S.Ct. at 1782, they further overburden courts that are

already handling upwards of 1,000 criminal indictments annually.

In addition, the three examples the Court gives as means by which

district courts can address the dilemmas presented by defendants

who simultaneously flee criminal prosecution and contest civil

forfeitures will only increase the drain on scarce judicial

resources.

The instant case exemplifies my concerns about Degen. Here,

a grand jury returned a superseding indictment against Eduardo

Gonzalez Quirarte, Avelino Gil-Terrazas, and several other

individuals charging them with various narcotics offenses. The

government alleged that Quirarte and Terrazas were the principals

in the organization, with Terrazas running the drug smuggling

operations in the United States and Quirarte running the operations

in Mexico. After trial, Terrazas was convicted of conspiracy to

distribute marijuana and cocaine and of money laundering. The

court sentenced him to 360 months in custody.

Quirarte, however, did not appear for trial, fleeing with his

wife from El Paso, Texas to Ciudad Juarez, Mexico to avoid

prosecution. Quirarte has never returned to the United States to

answer the criminal charges against him. He has, however,

contested the civil forfeiture proceeding the government instituted

against him based on the drug trafficking and money laundering
7

activities alleged in the indictment. Protected by Degen, a

criminal defendant such as Quirarte can make the short drive from

El Paso to Juarez and thereby ensure both his immunity from the

American criminal justice system and the protection of American

civil laws. Surely the Supreme Court did not intend such a result.

As an aside, there are two federal judges in El Paso who

preside over dockets with more than 400 criminal cases apiece.

Degen will exacerbate, not "resolve [this] dilemma[ ]." Id., ---

U.S. at ----, 116 S.Ct. at 1782.