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

• Citation: 730 F.3d 1051
• Decision Date: 18 September 2013
• Docket Number: No. 11–56924.,11–56924.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. $671,160.00 IN U.S. CURRENCY, Defendant, and Mike Ionita, Claimant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

730 F.3d 1051

UNITED STATES of America, Plaintiff–Appellee,

v.$671,160.00 IN U.S. CURRENCY, Defendant,andMike Ionita, Claimant–Appellant.

No. 11–56924.

United States Court of Appeals,

Ninth Circuit.

Submitted Aug. 9, 2013.^*

Filed Sept. 18, 2013.

Paul L. Gabbert, Santa Monica, CA, for Claimant–Appellant.

Katharine Schonbachler, Assistant United States Attorney; Steven R. Welk, Assistant United States Attorney, Chief, Asset Forfeiture Section; Robert E. Dugdale, Assistant United States Attorney, Chief, Criminal Division; André Birotte, Jr., United States Attorney, United States Attorneys' Office, Los Angeles, CA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Central District of California, George H. Wu, District Judge, Presiding. D.C. No. 2:10–cv–08934–GW–AGR.

Before: RICHARD C. TALLMAN, RICHARD R. CLIFTON, and CONSUELO M. CALLAHAN, Circuit Judges.

OPINION

TALLMAN, Circuit Judge:

This case involves the forfeiture of $671,170 in currency seized from a vehicle rented by Mike Ionita, a Canadian citizen. On the government's motion, the district court invoked the Fugitive Disentitlement Statute, codified at 28 U.S.C. § 2466,¹ to strike Ionita's claim to the funds. Through an attorney, Ionita appeals the district court's dismissal of his verified claim and answer, and the resulting default judgment in favor of the United States, contending that he does not meet the statutory definition of a fugitive from justice. We conclude that he does. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we AFFIRM.

I

Ionita was watched by Anaheim police officers exchanging luggage with a known narcotics dealer in the parking lot of a local hotel. The officers called for a marked police car to initiate a traffic stop, and a subsequent search of Ionita's vehicle revealed substantial amounts of currency in the trunk. Ionita insisted that the money was not his and that he had no idea how it got there or to whom it belonged. The money was seized, Ionita was released, and he later returned to Canada.

On November 19, 2010, the government commenced an in rem civil forfeiture action pursuant to 21 U.S.C. § 881(a)(6) against $671,160 in U.S. currency seized from Ionita's rental car. The government contended that the money was subject to forfeiture on the grounds that the funds represented or were traceable to proceeds of illegal narcotics trafficking, or were intended to be used in one or more exchanges for a controlled substance or listed chemical in violation of 21 U.S.C. §§ 841, et seq.

A

The government detailed in its civil complaint the events leading to the seizure of the defendant currency from Ionita on May 27, 2010. In relevant part, it alleged that “[i]n May 2010, Ionita was identified as a member of a Canadian based narcotics trafficking organization responsible for transporting large sums of U.S. currency within the United States and purchasing large quantities of cocaine for distribution in Canada.”

The complaint further alleged that, on May 27, 2010, Anaheim police officers observed Ionita enter a hotel parking lot while driving a white Mercedes Benz. In the parking lot, Ionita approached a 2007 Cadillac Escalade pickup truck registered to Robert Russell Allen, who “ha[d] an extensive criminal history including multiple narcotics arrests and convictions, including but not limited to cocaine conspiracy and money laundering.” The truck's driver, identified as Allen, removed two pieces of luggage, a black carry-on suitcase and a black duffle bag, from his Escalade and transferred them to the trunk of Ionita's Mercedes Benz. Surveillance photos captured the exchange. Allen and Ionita then left the parking lot in their respective vehicles.

Officers believed that “[t]he conduct of the two men [observed in the hotel parking lot] was consistent with a delivery of drugs or drug-related money.” To confirm their suspicions, Anaheim police officers requested that an officer in a marked El Monte police car conduct a traffic stop on Ionita's vehicle. The stop was initiated after Ionita changed lanes without signaling, in violation of California Vehicle Code § 22107. After being stopped, Ionita provided the uniformed officer with his Canadian driver's license and rental car agreement, but was unable to recall the addresses for the locations that he was purportedly visiting in Hollywood and Ontario.

His suspicions aroused, the El Monte officer requested Ionita's consent to search his vehicle, which Ionita refused. The officer then called for a narcotics-detecting canine to sniff the exterior of the Mercedes Benz. After the canine alerted to the odor of narcotics coming from three sections of the vehicle, the officer conducted a search of the Mercedes Benz and located the two pieces of luggage stored in the trunk. Upon opening the luggage, the officer discovered $671,170 in U.S. currency.

Ionita denied any knowledge of the luggage and immediately signed a disclaimer of ownership form for the defendant currency. Police then seized and later transferred the funds to the Drug Enforcement Administration for further investigation and to initiate federal forfeiture proceedings. Ionita was not detained further and he ultimately returned to Canada, where he continues to reside.

B

On December 17, 2010, the Los Angeles County District Attorney filed a criminal complaint charging Ionita with violating California Health & Safety Code § 11370.6(a) by “possessi[ng] money or instruments over $100,000 ... which were obtained as the result of the unlawful trafficking of [a] controlled substance ... and ... possess[ed] ... with the intent to unlawfully purchase [a] controlled substance.” On December 21, 2010, a California Superior Court judge signed a felony warrant authorizing Ionita's arrest on the pending criminal charge. Bail was fixed by the court at $600,000. Although Ionita has been notified of the charge, he has not appeared in Los Angeles to contest or answer the criminal charge.

Instead, Ionita has only appeared in the United States District Court, through counsel, to contest the civil forfeiture proceedings. On December 20, 2010, Ionita filed a verified claim “demand[ing] restitution of the defendant $671,160 [sic] in U.S. currency.” Additionally, on February 10, 2011, Ionita formally answered the forfeiture complaint, generally denying the allegations of criminal activity and asserting that he was the true owner of the seized funds.

Because Ionita had not surrendered on the criminal arrest warrant, the government filed a motion to strike Ionita's claim pursuant to the Fugitive Disentitlement Statute, codified at 28 U.S.C. § 2466. Despite numerous opportunities afforded by the district court, Ionita has not personally appeared in Los Angeles to contest the application of the statute. Additionally, in response to discovery propounded by the United States in the forfeiture case, Ionita has asserted his Fourth, Fourteenth, and Fifth Amendment rights. After reviewing extensive briefing, evidentiary submissions, and holding hearings, the district court granted the government's motion to strike, ruling that Ionita's claim was barred by the statute. With no other claimants to the forfeited funds, the court granted a motion for default and entered judgment against the defendant res in favor of the United States. This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291.

II

While we review the legal applicability of the Fugitive Disentitlement Statute de novo, we review a district court's decision to order disentitlement for abuse of discretion. Collazos v. United States, 368 F.3d 190, 195 (2d Cir.2004); United States v. Salti, 579 F.3d 656, 662–63 (6th Cir.2009). We consider the government's motion to strike a claim pursuant to the statute “as something like a motion to dismiss, [where we can] look[ ] to matters outside the pleadings, and ..., where appropriate, allow[ ] for the possibility of conversion to summary judgment.” United States v. $6,976,934.65 Plus Interest, 478 F.Supp.2d 30, 38 (D.D.C.2007).

III

28 U.S.C. § 2466 has five required elements:

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

United States v. $6,190.00 in U.S. Currency, 581 F.3d 881, 886 (9th Cir.2009). Ionita concedes that all of the elements of the Fugitive Disentitlement Statute are met but one—whether he remains outside of the United States “in order to avoid criminal prosecution”—in other words, whether he meets the statutory definition of being a fugitive from justice.

A

Ionita argues that he returned to his home in Vancouver, Canada, before the criminal complaint was filed in this case and, therefore, he cannot be said to have left the United States “in order to avoid criminal prosecution.” 28 U.S.C. § 2466(a)(1). Instead, Ionita claims that he remains in Canada not to “evade the [state] court's jurisdiction,” but insists that he “merely returned to his home.” Ionita argues that “the fugitive disentitlement statute [cannot] be satisfied simply by continuing to live in one's own country at the time that a charging document was filed in a state court.”

Ionita's arguments primarily relate to the time period after he returned to Canada and before the California criminal complaint was filed. However, Ionita may still be considered a fugitive, as that term is defined in § 2466, if he failed to “enter or reenter the United States” in order to avoid criminal prosecution once he learned that the California complaint had been filed and a warrant for his...