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Collins Final 3 PDF
Collins Final 3 PDF
Alexandra M. Collins*
INTRODUCTION
T
here is a long history in the United States in refusing to allow a
fugitive to use the courts to receive a beneficial disposition while
simultaneously ignoring the authority of the courts over him or
herself. This practice is known as the “Fugitive Disentitlement Doctrine,” a
1
* Juris Doctor, New England Law | Boston (2017). Dual B.A., cum laude, Criminal Justice &
Spanish, Roanoke College (2014). I would like to thank my family and friends, for their
unconditional support and encouragement, especially when I would get discouraged;
Elizabeth Mikesell, for not only helping me with the externship that lit the match for the idea
of this topic, but for also being the inspiration for me to enter the legal field; and all of the
Editors and Associates who have put in their time and effort to help improve the quality of
this article.
1 Martha B. Stolley, Note, Sword or Shield: Due Process and the Fugitive Disentitlement
Doctrine, 87 J. CRIM. L. & CRIMINOLOGY 751, 752 (1997); Lawrence Serkin Winsor, Note,
Runaway Usance: Limiting the Exercise of the Fugitive Disentitlement Doctrine in the Context of
Wenqin Sun v. Mukasey and Bright v. Holder, 47 GA. L. REV. 273, 276 (2012).
2 See Stolley, supra note 1, at 752–53.
July 11, 2017) (providing the definition of equitable as just and fair).
4 Winsor, supra note 1, at 278 (“The fugitive disentitlement doctrine prevents an evasive
party from obtaining standing in the court whose authority is evaded.”); see also Angelo M.
Russo, Note, The Development of Foreign Extradition Takes a Wrong Turn in Light of the Fugitive
Disentitlement Doctrine: Ninth Circuit Vacates the Requirement of Probable Cause for a Provisional
Arrest in Parretti v. United States, 49 DEPAUL L. REV. 1041, 1049 (2000) (noting that the right to
appeal is not absolute and procedural rules may bar the right to appeal as a sanction as long
as it is not inconsistent with the Constitution or statutes).
635
636 New England Law Review [Vol. 51|3
5 Henry Tashman et al., Flight or Fight: Originally Invoked in Criminal Cases, the Fugitive
Disentitlement Doctrine is Equally Applicable in Civil Disputes, 29 L.A. LAW. 44, 45 (2006); Winsor,
supra note 1, at 279 (noting other areas to which the Doctrine applies, such as administrative
forfeiture, tax liabilities, and extradition); see also 28 U.S.C. § 2466 (2016).
6 Merrill Matthews, Civil Asset Forfeiture and the Constitution, INST. FOR POL’Y INNOVATION
Residents of Foreign Countries from Contesting the Seizure of their Property?, WASH. POST (July 9,
2015), https://perma.cc/G8Y5-2QGC.
9 Compare United States v. Technodyne LLC, 753 F.3d 368, 383–84 (2d Cir. 2014), and
United States v. $671,160.00 in U.S. Currency, 730 F.3d 1051, 1056–57 (9th Cir. 2013) (holding
that a showing of avoiding criminal prosecution is sufficient to fit the statutory definition of a
fugitive), with United States v. Salti, 579 F.3d 656, 664–65 (6th Cir. 2009), and United States v.
$6,976,934.65, Plus Interest Deposited into Royal Bank of Scot. Int’l, Account No. 2029-
56141070, Held in the Name of Soulbury Ltd., 554 F.3d 123, 132–33 (D.C. Cir. 2009) (holding
that avoiding criminal prosecution must be the sole reason for not surrendering to the
jurisdiction to become a fugitive).
10 See generally $671,160.00 in U.S. Currency, 730 F.3d at 1056–57 (holding that refusal to
reenter the United States for a criminal procedure can render one a fugitive).
11 See generally $6,976,934.65, Plus Interest Deposited into Royal Bank of Scotland Intern.,
Account No. 2029-56141070, Held in Name of Soulbury Ltd., 554 F.3d at 132 (holding that
avoiding criminal prosecution must be the sole reason for not surrendering to the court’s
jurisdiction).
2017] Fugitive Disentitlement Doctrine 637
The Supreme Court has recognized the Doctrine since the late 1800s. 17
Over the centuries, the Court has continued to hear cases related to the
Doctrine, which has resulted in its expansion beyond the original scope of
criminal appeals. 18 Though in 1996, the Court put up a roadblock in regard
12 Tashman, et al., supra note 5 (noting that the “heads I win, tails you lose” mentality is
when a fugitive can enjoy a legal victory while at the same time “ignoring the . . .
consequences of defeat”).
13 See Stolley, supra note 1, at 752 (“[F]ugitive from justice may not seek relief from the
Forfeiture— Flouting the System or Fundamental Right, 83 KY. L.J. 631, 637 (1994–95).
15 See Degen v. United States, 517 U.S. 820, 823 (1996) (stating that the Court would not
extend the Doctrine to civil proceedings because that would exceed the power of the
judiciary); Ortega-Rodriguez v. United States, 507 U.S. 234, 244 (1993) (providing that there
needs to be a connection between fugitive status and the specific court’s jurisdiction); see also
Russo, supra note 4, at 1049, 1077; Winsor, supra note 1, at 281.
16 See generally 28 U.S.C. § 2466 (2000), amended by 28 U.S.C. § 2466 (2006) (allowing officials
to use the Doctrine in civil forfeiture proceedings related to criminal forfeiture actions).
17 See generally Bonahan v. Nebraska, 125 U.S. 692 (1887) (utilizing the precedent created by
Smith to set aside petitioner’s motion after his escape from custody); Smith v. United States, 94
U.S. 97 (1876) (creating the origin of the Doctrine).
18 See, e.g., Estelle v. Dorrough, 420 U.S. 534, 540–41 (1975) (providing that states can enact
statutes that automatically invoke the Doctrine when one is designated a fugitive); Molinaro
638 New England Law Review [Vol. 51|3
In Smith v. United States, the Court, for the first time, formally
articulated that it was within its discretion to reject an appeal when a
convict escapes custody. 20 The Court stated that it had no way of ensuring
that its decision of whether to uphold the conviction or order a new trial
would be honored as the appellant was out of the Court’s jurisdictional
reach due to his escape. 21 The appellant had been ordered to submit
himself to the custody of the lower court before the Court’s next term or his
motion would be refused to be heard. 22 This notion was reaffirmed a
decade later in Bonahan v. United States. 23
v. New Jersey, 396 U.S. 365, 365 (1970) (stating that the Doctrine is still a valid mechanism).
19 See generally Degen, 517 U.S. at 823 (refusing to extend the Doctrine to civil matters).
21 Id.
22 Id. at 97–98.
23 Bonahan v. Nebraska, 125 U.S. 692, 692 (1887) (holding that the Doctrine bars the Court
from rendering a decision until an appellant avails himself to the custody of the lower court);
see also Bonahan v. Nebraska, 24 N.W. 390, 391–92, 399 (Neb. 1885) (holding that the
appellant’s own motion to set aside the first jury’s verdict in order to have a new trial negated
the first verdict’s effect to act as an acquittal of first degree murder).
24 See Molinaro v. New Jersey, 396 U.S. 365, 365–66 (1970) (stating that there were no
persuasive reasons to hear the case, as the appellant could not ignore the restraints placed on
him by the Court while also expecting to receive a benefit).
25 Id. at 365.
26 Id.
28 Id. (stating that because the basic threshold to apply the Doctrine had been met, there
was no need to wait until the end of the term to officially dispose of the case).
2017] Fugitive Disentitlement Doctrine 639
3. Estelle v. Dorrough
sentencing. 40
In its review of this case, the Court recognized there are two main
theories for employing the Doctrine: (1) enforceability issues, and (2)
disentitlement theory. 41 The Court also recognized that the Doctrine has
expanded, such that it disentitles someone to an appeal before even
beginning the appellate process. 42 In response to this particular extension
of the Doctrine, the Court clarified that in order for the Doctrine to apply
there must be a nexus between the fugitive status and the appellate court;
thus when one escapes custody before filing an appeal the Doctrine should
not be used to bar such appeal. 43 The reason for this limitation, as
articulated by the Court, is that enforceability concerns fade when a
fugitive has been recaptured before sentencing and the beginning of the
appeals process. 44 Therefore, an appellant would be within the authority
and control of the appellate court. 45 Based upon this reasoning, the Court
reversed the decision of the court of appeals, holding that the appellant’s
fleeing prior to filing an appeal had not placed an obstacle in the appellate
review rendering the invocation of the Doctrine unnecessary. 46
In Degen, the Court dealt with the issue of whether the Doctrine should
extend to civil forfeiture proceedings related to criminal proceedings. 47
Degen, a citizen of both the United States and Switzerland, faced criminal
indictment charges of distributing marijuana and money laundering. 48 At
the same time, the government initiated a civil forfeiture action against him
for money related to the illegal activities. 49 Before both proceedings took
place, Degen moved to Switzerland, which because of its treaty with the
United States did not require Switzerland to turn over its nationals. 50 After
learning about the civil suit, Degen filed an answer to the complaint to
40 Id. at 239.
41 See id. at 240.
42 See Ortega-Rodriguez, 507 U.S. at 242–44.
43 See id. at 244–47; see also Russo, supra note 4, at 1049, 1077.
45 See id.
46 See id. at 247, 251 (explaining that when someone flees from the authority and control of
a district court there are different tools that the court may use at its discretion, while an
appellate court only has the severe sanction of dismissal).
47 Degen v. United States, 517 U.S. 820, 821 (1996).
48 Id. at 821–22.
49 See id. at 821.
50 Id. at 822.
2017] Fugitive Disentitlement Doctrine 641
contest the forfeiture of his assets. 51 The government then filed a motion for
summary judgment asking the Court to dismiss the case based on Degen’s
fugitive status. 52
In its decision, the Court reiterated the Doctrine’s applicability in
criminal matters, but cautioned that the judiciary’s continued expansion of
the Doctrine stretched beyond its authority. 53 The Court stated that in order
for the Doctrine to apply the fugitive needs to be offending the dignity of the
court trying to impose the sanction. 54 The Court noted that because the
properties in Nevada, California, and Hawaii were within the authority
and control of the civil court, even with Degen’s absence, there was no
threat of wasting time on an unenforceable judgment. 55 Moreover, because
the Doctrine is such a severe sanction, its implementation in this context
could actually work against the courts’ best interest: diminishing respect
for their judgments. 56 Thus, the Court reversed the decision of the court of
appeals, and allowed the civil forfeiture proceeding to continue. 57
A few years after Degen was decided, the United States Congress
(Congress) enacted a statute that allows the Doctrine to be applied to civil
forfeiture actions if the action is related to criminal proceedings. 58 Congress
created 28 U.S.C. § 2466 in response to the Supreme Court’s reluctance to
expand the Doctrine in Degen. 59 The language of § 2466 does not require
that a court apply the Doctrine, but rather allows that court to do so if it
finds that the elements in the statute have been met and the sanction has
been deemed reasonable. 60
51 See id.
52 See id. (observing the district court’s holding that Degen was disentitled to be heard in
the civil forfeiture action because he stayed outside of the United States and avoided criminal
prosecution).
53 See Degen, 517 U.S. at 823 (suggesting that any further expansion should be left to the
other branches of government).
54 See id. at 825.
55 See id. at 821, 825 (stating that the government had established enough probable cause
for the civil court to have jurisdiction over the matter).
56 See id. at 828 (explaining that respect for courts’ decisions will be undermined if cases are
which “may be controlled or overridden by statute or rule."). See generally 28 U.S.C. § 2466
(2000), amended by 28 U.S.C. § 2466 (2006) (extending the Doctrine to civil forfeiture matters).
60 See 28 U.S.C.§ 2466 (2012) (“A judicial officer may disallow a person from using the
resources of the courts of the United States in furtherance of a claim in any related civil
642 New England Law Review [Vol. 51|3
Four years after § 2466 was enacted, the Second Circuit Court of
Appeals was one of the first jurisdictions to interpret the reaches of the
statute in Collazos v. United States. 61 In Collazos, the Government had a
warrant to search a business premise in Texas, which turned up evidence
of fake bank accounts linked to fake identities. 62 A wire-tap was then
issued and revealed discussions between the claimant and another party
about money transfers in regard to the fake accounts. 63 In 1999, the
Government obtained a warrant to freeze the claimant’s New York
account 64 due to its alleged connection with illegal money laundering
activity for drug trafficking. 65 The previous year, a grand jury in Texas
issued an indictment for the claimant for “engaging in the business of
currency transmission without a license.” 66 The claimant refused to appear
for depositions even after being ordered to by the civil court. 67
Correspondence between the parties suggest that the claimant did not
enter the United States in order to avoid being arrested for the Texas
charges. 68 The civil court proceeded to dispose of the claimant’s case under
the authority granted by § 2466. 69
The claimant appealed the dismissal of her complaint to the Second
Circuit. 70 The appellate court held that the civil court’s decision to invoke
§ 2466 to dismiss the case was not an abuse of discretion. 71 The Court stated
that the plain meaning of the statute does not require one to be a fugitive at
common law, 72 as the word fugitive does not appear in the text of the
forfeiture action or a claim in third party proceedings in any related criminal forfeiture action .
. .”) (emphasis added).
61 Collazos v. United States, 368 F.3d 190, 192 (2d Cir. 2004).
62 See id. at 193.
63 Id.
64 See id. at 192–93. The claimant lived in Cali, Colombia and had never entered in the
68 Id.
69 Id. at 195.
70 Id. at 192.
71 See id.
72 See id. at 197. The claimant argued that since she had not physically been in the
jurisdiction when a crime was committed, and therefore had not fled nor concealed herself
from the jurisdiction, she did not fit the fugitive definition. Id. at 195–96.
2017] Fugitive Disentitlement Doctrine 643
statute. 73 The Second Circuit further maintained that § 2466 contains five
prerequisites that must be met before it can be utilized by a court. 74 The
Court held that the claimant fit within the definition of the statute because
her criminal conduct outside of the United States subjected her to
prosecution within the United States; the defendant knew her arrest was
sought but deliberately refused to enter the United States in order to avoid
prosecution. 75 This phrase, “in order to avoid prosecution,” has led to
controversy among the circuit courts about what level of intent is required
to be shown by the government to invoke § 2466. 76
A decade after its Collazos decision, the Second Circuit heard another
case dealing with § 2466. 79 The claimant, Technodyne LLC (Technodyne)
was a company solely owned by the Allens who were United States
77 See generally United States v. Technodyne LLC, 753 F.3d 368 (2d Cir. 2014) (stating that
avoiding criminal prosecution by leaving and refusing to reenter the United States does not
have to be the claimant’s sole intent in order for the Doctrine to apply); United States v.
$671,160.00 in U.S. Currency, 730 F.3d 1051 (9th Cir. 2013) (holding that other factors that led
the claimant to leave and refuse to return to the United States do not render the Doctrine
inapplicable if there was a conscious choice to flee and not reenter the country to avoid
criminal prosecution).
78 See Technodyne LLC, 753 F.3d at 383–86; $671,160.00 in U.S. Currency, 730 F.3d at 1056–57.
79 See Technodyne LLC, 753 F.3d at 368; see also 28 U.S.C. § 2466 (2006) (providing that the
citizens. 80 The Allens were indicted on charges of wire fraud, bribery, and
money laundering for overbilling practices through Technodyne in
connection with a project for New York City. 81 They were served with
subpoenas to testify and to produce documents at a grand jury hearing;
they did not show up. 82 Eventually, the Allens left the United States for
India. 83 After a second failed appearance in April 2011, bank accounts were
frozen, indictments were issued, and the Government thereafter filed a
civil forfeiture action predicated on § 2466. 84 The Allens filed an opposition
through their counsel, stating that they had left the United States for
business reasons and prior to discovering that they were the targets of a
criminal investigation. 85 The district court ultimately granted the
Government’s motions for default judgments in 2013. 86
On appeal, the Second Circuit outlined the five factors articulated in
Collazos, stating that a claimant’s intent can be determined from evaluating
the totality of the circumstances. 87 The Court clarified that even if all five
prerequisites of the statute are met, a court does not have to automatically
conclude that the claimant is disentitled from having his action heard, as
such a decision is discretionary. 88 It also provided that the Government
need not show that it was the “sole, principal, or dominant intent” of the
claimant to avoid criminal prosecution; the government’s burden of proof
would be sufficiently satisfied just as long as it was a reason. 89 In affirming
the district court’s disposition of the case, the Second Circuit stated “[t]he
existence of other factors . . . does not undermine or foreclose the district
court’s finding that [the claimant] made a conscious choice to not ‘enter or
reenter the United States’ in order to avoid criminal prosecution.” 90
the husband, Reddy, first traveled to Indonesia and then to India in March).
84 See id. at 372–73.
85 Id. at 373–74 (providing alternative explanations for remaining outside the United States,
for example, since their assets had been frozen they could not afford to go home and had to
beg other people to fly their children to India).
86 Technodyne LLC, 753 F.3d at 376.
87 Id. at 378.
88 Id. at 382.
89 Id. at 383.
90 Id. at 384, 386 (quoting United States v. $671,160.00 in U.S. Currency, 730 F.3d 1051, 1056,
91 See $671,160.00 in U.S. Currency, 730 F.3d at 1056 (outlining Ionita’s argument that he
was legally outside of the United States because he returned to his home in Canada).
92 Id. at 1054 (noting that Ionita was observed exchanging luggage with a known narcotics
dealer by police officers who called for a marked police car to follow Ionita’s car).
93 Id. (stating that the officer used a drug sniffing canine to obtain probable cause to search
the luggage).
94 Id. at 1055.
95 Id. (observing that a felony arrest warrant was issued for Ionita due to his violation of a
99 Id.
104 Id.
646 New England Law Review [Vol. 51|3
avoiding prosecution only needs to be a reason rather than the sole reason
to make § 2466 applicable. 105 The Court explained that Ionita’s “conscious
choice” to remain outside the jurisdictional reach of the United States
statutorily classified him as a fugitive. 106 The Ninth Circuit held that the
district court properly applied the Doctrine, and its grant of a default
judgment was proper. 107
The other interpretation for the burden of proof that has been adopted
by the D.C. and Sixth Circuits, is that the claimant’s intent to avoid criminal
prosecution needs to be the reason for not subjecting oneself to the court’s
jurisdiction. 108 This means that when a court applies the Doctrine, that
court must consider all underlying factors and give proper weight
accordingly. 109
In 2009, the D.C. Circuit had its first entanglement with the latest
version of § 2466, using the new clause to hold that the fugitive status of a
majority shareholder disentitled a corporation from contesting a civil
forfeiture. 110 William Scott was the majority shareholder of Soulbury
Limited (Soulbury). 111 While living abroad he became a suspect in creating
an illegal online gambling site in the Caribbean directed at United States
residents. 112 In 1998, a criminal complaint was filed against him. 113 An
interview with Scott that aired in 2001, indicated that he knew about the
Scot. Int’l, Account No. 2029-56141070, Held in the Name of Soulbury Ltd., 554 F.3d 123 (D.C.
Cir. 2009) (determining that the plain language of § 2466 requires the defendant’s intentional
avoidance of a criminal prosecution in order for the Doctrine to apply); United States v. Salti,
579 F.3d 656, 663 (6th Cir. 2009) (adopting the D.C. Circuit’s holding).
109 See $671,160.00 in U.S. Currency, 730 F.3d at 1057–58.
110 See $6,976,934.65, Plus Interest Deposited into Royal Bank of Scot. Int’l, Account No. 2029-
56141070, Held in the Name of Soulbury Ltd., 554 F.3d at 124–25; see also 28 U.S.C. § 2466(b)
(2012).
111 $6,976,934.65, Plus Interest Deposited into Royal Bank of Scot. Int’l, Account No. 2029-
complaint, but did not answer it. 114 Eventually, the complaint went stale. 115
The Government then filed a civil forfeiture action for $6,976,934.65, plus
interest from Soulbury. 116 In 2005, a criminal indictment and arrest warrant
was issued for Scott but kept under seal until 2006. 117 In response, Soulbury
filed a claim to contest the forfeiture. 118 This prompted the Government to
file a motion to dismiss through the application of the Doctrine. 119 The
Government’s motion was granted in 2007; Soulbury appealed. 120
The D.C. Circuit began its analysis by supplying a history of the
development of the Doctrine. 121 It then listed the Collazos elements and also
stated that the last element could be satisfied in three different manners: (1)
purposely leaving the jurisdiction, (2) declining to enter the jurisdiction,
and (3) otherwise evading the authority and control of the jurisdiction. 122
The Court then declared that the plain reading of § 2466 “requires the
government to show ‘that avoiding prosecution is the reason [that one] has
failed to enter the United States and has otherwise evaded its
jurisdiction.’” 123 It clarified that “mere notice or knowledge” of the warrant
taken together with the person’s refusal to enter the country does not
satisfy the statutory requirements of § 2466. 124 In light of this framework,
the D.C. Circuit reversed the district court’s granting of the Government’s
motion for summary judgment as there was a genuine issue of fact as to
whether the Doctrine was applicable. 125
114 See id. (“He appeared in an episode of the Canadian television newsmagazine the fifth
estate, broadcast in 2001, about the rise of Internet gambling. The report featured Scott's
operation of several gambling websites and mentioned the pending criminal charges against
him. When the reporter interviewing him stated that there was a warrant out for his arrest,
Scott responded, ‘No, . . . no . . . well you can call it warrant. There is a criminal complaint.
Complaint. I have not been indicted. It's a complaint. Which means, yes, if I would go to the
U.S., I would probably be arrested.’”).
115 Id.
116 Id.
117 See $6,976,934.65, Plus Interest Deposited into Royal Bank of Scot. Int’l, Account No. 2029-
120 Id.
123 $6,976,934.65, Plus Interest Deposited into Royal Bank of Scot. Int’l, Account No. 2029-
During the same year that $6,976,934.65, Plus Interest was decided by
the D.C. Circuit, the Sixth Circuit also had a case dealing with the Doctrine
and how to determine the claimant’s intent to avoid criminal
prosecution. 126 A Swiss bank account belonging to Mohammed Al
Ammouri and his wife, Usrah Mary Salti, was seized as a result of a plea
agreement signed by their nephew. 127 The couple filed a complaint to
contest the civil forfeiture, which was countered by the Government’s
motion to dismiss based on the Doctrine. 128 The district court granted the
Government’s motion, which was appealed. 129
In its review of the district court’s decision, the Sixth Circuit relied on
the D.C. Circuit’s decision in $6,976,934.65, Plus Interest. 130 In particular, the
Sixth Circuit adopted the D.C. Circuit’s test for the fifth Collazos element to
label someone as a fugitive, requiring that the Government show that
avoidance of criminal prosecution was the intent of the potential fugitive. 131
The Court reversed the district court’s granting of the Government’s
motion to dismiss since there was a factual dispute as to whether Al
Ammouri was deliberately avoiding prosecution due to his poor health
condition. 132 The Court also articulated that once the district court has
evaluated all relevant facts, especially the health information, it could still
arrive at the conclusion that the Doctrine applies. 133
126 See generally United States v. Salti, 579 F.3d 656 (6th Cir. 2009).
127 See id. at 659 (explaining that the nephew’s plea agreement stated that he forfeited all
property, real or personal, traceable from his illegal conduct for food stamp fraud and money
laundering, which the Government asserted the Swiss bank account fit within the parameter
of the agreement).
128 See id. at 660–61 (noting the Government’s assertion that Al Ammouri was part of the
application of the fugitive disentitlement statute, on the Government's motion for summary
judgment, where the district court had disallowed a claim in a forfeiture proceeding.
Discussing the fifth disentitlement element, the D.C. Circuit found that the district court erred
in holding that the government need not show “that avoiding prosecution is the reason [the
individual] has failed to enter the United States and has otherwise evaded its jurisdiction.”
(internal quotations omitted)) (internal citations omitted).
132 See United States v. Salti, 579 F.3d 656, 665–66 (6th Cir. 2009).
133 See id. at 666.
2017] Fugitive Disentitlement Doctrine 649
ANALYSIS
III. Policy Concerns and The Response the Supreme Court Should Have
The police and other law enforcement agencies have a strong incentive
to use civil forfeiture proceedings as they get to keep or sell property that is
seized. 139 An underlying criminal charge is not required to initiate a civil
forfeiture proceeding, resulting in the risk of police seizing property when
they have little-to-no evidence to support a criminal charge for the
individual. 140 The justification for this low evidentiary burden is public
safety—by going after the money feeding the criminal enterprise, the
power and influence of that organization will fade. 141
134 See Colin May, Asset Seizure and Forfeiture: A Basic Guide, FED. BUREAU INVESTIGATION
Forfeitures, 86 J. CRIM. L. & CRIMINOLOGY 493, 495 (1996); see also Timothy J. Ford, Note, Due
Process for Cash Civil Forfeitures in Structuring Cases, 114 MICH. L. REV. 455, 457 (2015).
136 See Matthews, supra note 6.
137 See Kanya Bennett & Nkechi Taifa, There is Bipartisan Agreement on the ‘Uncivility’ of Civil
Asset Forfeiture, AM. C.L. UNION (Apr. 20, 2015, 3:00 PM), https://perma.cc/JHY5-G62A.
138 See Asset Forfeiture Abuse, AM. C.L. UNION, https://perma.cc/TZ47-AVP6 (last visited July
11, 2017).
139 Karis Ann-Yu Chi, Comment, Follow the Money: Getting to the Root of the Problem with
Civil Asset Forfeiture in California, 90 CAL. L. REV. 1635, 1645 (2002); see also Asset Forfeiture
Abuse, supra note 138.
140 See May, supra note 134.
141 See Asset Forfeiture Program, DEP’T. JUSTICE, https://perma.cc/P4G5-NPGR (last visited
July 11, 2016) (“The primary mission of the Program is to employ asset forfeiture powers in a
manner that enhances public safety and security. This is accomplished by removing the
proceeds of crime and other assets relied upon by criminals and their associates to perpetuate
their criminal activity against our society. Asset forfeiture has the power to disrupt or
dismantle criminal organizations that would continue to function if we only convicted and
incarcerated specific individuals.”); see also Asset Forfeiture Abuse, supra note 138.
650 New England Law Review [Vol. 51|3
142 See Chi, supra note 139, at 1645; Murphy, supra note 7, at 79.
143 See Chi supra note 139, at 1645; Murphy, supra note 7, at 79.
144 See Chi, supra note 139, at 1646.
147 See Chi, supra note 139, at 1646–47 (basing the warrant on faulty information just to gain
153 See Murphy, supra note 7, at 93; Asset Forfeiture Program, supra note 141.
154 Murphy, supra note 7, at 91 (pointing to a study in Maryland that showed 28% of both
blacks and whites have narcotics in their cars, while another study in New Jersey showed that
as many as 25% of whites, but only 13% of blacks have narcotics in their cars).
2017] Fugitive Disentitlement Doctrine 651
155 Position Paper: Race and the War on Drugs, ACLU: DRUG POL’Y LITIG. PROJECT,
159 See Chi, supra note 139, at 1636; Murphy, supra note 7, at 89.
166 See Ford, supra note 135, at 455–56; Walberg, supra note 157.
167 Ford, supra note 135, at 456 (explaining that the reason that Dehko deposited less than
$10,000 per night into the store account had to do with his insurance policy, which only
652 New England Law Review [Vol. 51|3
assert his property rights, but he was unable to pay his employees and
store bills. 168 Eventually, the IRS voluntarily dismissed the action, but
Dehko’s business was harmed from not being able to access the store
account for months. 169 In the end, the government gets to keep property it
seized on a suspicion of criminal activity, 170 while the owner is deprived of
his or her property because the process to regain it is too daunting. 171
171 See Bennett & Taifa, supra note 137 (“When property owners . . . muster the courage to
go up against the government, they find the deck is stacked against them.”).
172 See Noya, supra note 135, at 500.
173 See May, supra note 134 (describing the difference between in personam actions: criminal
cases, and in rem actions: civil forfeitures).
174 See Winsor, supra note 1, at 275.
175 See Collins, supra note 14, at 647–48.
176 See Gary P. Naftalis & Alan R. Friedman, Fugitive Disentitlement in Civil Forfeiture
Proceedings, 228 N.Y. L.J. 1, 3 (2002) (“[W]ith artful pleading the government could confiscate
all of a fugitive’s property, indeed even the property of some individuals who prove to be
non-fugitives, all on mere allegations.”) (emphasis added); see also Noya, supra note 135, at 501
(“[T]he government can arguably circumvent rights granted to individuals charged with
crimes.”).
177 Naftalis & Friedman, supra note 176.
2017] Fugitive Disentitlement Doctrine 653
CONCLUSION
178 See United States v. $6,976,934.65, Plus Interest Deposited into Royal Bank of Scot. Int’l,
Account No. 2029-56141070, Held in the Name of Soulbury Ltd., 554 F.3d 123, 132 (D.C. Cir.
2009).
179 See id. (espousing that “Scott’s renunciation of his U.S. citizenship is insufficient without
some evidence that he took this action to avoid extradition.” (emphasis added)); see also
Matthews, supra note 6.
180 Degen v. United States, 517 U.S. 820, 828 (1996) (“The right of the citizen to defend his
property against attack in a court is corollary to the plaintiff's right to sue there. For this
reason we have held it unconstitutional to use disentitlement similar to this as punishment for
rebellion against the United States, or, in at least one instance, for contempt of court. We need
not, and do not, intimate a view on whether enforcement of a disentitlement rule under
proper authority would violate due process. It remains the case, however, that the sanction of
disentitlement is most severe and so could disserve the dignitary purposes for which it is
invoked.”); see also Naftalis & Friedman, supra note 176.
181 See Bennett & Taifa, supra note 137.
182 See $6,976,934.65, Plus Interest Deposited into Royal Bank of Scot. Int’l, Account No. 2029-