820 So.2d 385 (Fla.App. 3 Dist. 2002), 3D00-3145, Tejada v. In re Forfeiture of The Following Described Property, $406,626.11 In United States Currency

CourtFlorida Court of Appeals. Third District
Writing for the CourtThe opinion of the court was delivered by: Ramirez, J.
Citation820 So.2d 385,27 Fla. L. Weekly D 1244
Date29 May 2002
Docket Number3D00-3145.
PartiesAndres F. TEJADA, Appellant, v. In re FORFEITURE OF THE FOLLOWING DESCRIBED PROPERTY: $406,626.11 IN U.S. CURRENCY, Appellee.

Page 385

820 So.2d 385 (Fla.App. 3 Dist. 2002)

27 Fla. L. Weekly D 1244

Andres F. TEJADA, Appellant,

v.

In re FORFEITURE OF THE FOLLOWING DESCRIBED PROPERTY: $406,626.11 IN U.S. CURRENCY, Appellee.

No. 3D00-3145.

Florida Court of Appeal, Third District

May 29, 2002

Rehearing Denied July 19, 2002.

Page 386

J. James Donnellan, III, Miami, for appellant.

Katherine Fernandez Rundle, State Attorney, and Israel Reyes, Assistant State Attorney; Adorno & Zeder, P.A., and Raoul G. Cantero, III, Miami, and Donna A. Weston, for appellee.

Before GREEN, SHEVIN, and RAMIREZ, JJ.

RAMIREZ, J.

Andres F. Tejada appeals a final order in a civil forfeiture action dismissing his claim to $406,626.11 in U.S. currency seized from his Florida bank account. The trial court based its dismissal of Tejada's claim upon section 896.106, Florida Statutes (2000), which codified what is commonly referred to as the "fugitive disentitlement doctrine." We affirm because the statute was not impermissibly applied retroactively.

I.

The facts are undisputed. Tejada lives in Cali, Colombia. He uses a Miami post office box as a mailing address, and has received mail at several places in the United States, including Florida and Louisiana, since about 1987. He also has a United States social security number. Tejada maintained a bank account in a Coral Gables, Florida branch of Citibank.

Page 387

In 1997, Tejada began depositing money orders into his Citibank account several times a day. Each money order was purchased in New York. In that state, any person who purchases more than $3,000 in money orders in a single transaction must provide identification and sign a log with the seller. Most of Tejada's money order purchases were between $2,000 and $2,500. The money orders were sent incomplete from New York to Colombia, where Tejada completed and returned them to the United States for deposit into the Citibank account. Tejada's deposits were in amounts of $9,950 each. His account also showed transfers of large amounts of currency to accounts in Switzerland, Japan, and Colombia. For example, he sent two transfers of $100,000 to Switzerland.

The State Comptroller's Office supplied investigators from the South Florida Impact Task Force with a Suspicious Activity Report that Citibank had filed regarding Tejada's account. The report was based on a recorded conversation between Tejada and Citibank representatives, as well as on the account's transaction activity. In August 1997, the City of Coral Gables, on behalf of the Task Force, seized the funds in the account under the Florida Contraband Forfeiture Act, sections 932.701-07, Florida Statutes (1995). The City notified Tejada of its intention to forfeit the funds and filed a complaint for forfeiture. Tejada filed an answer in which he refused, on Fifth Amendment grounds, to respond to the complaint.

Soon thereafter, the United States Attorney for the Southern District of Florida filed a criminal complaint charging Tejada with illegal money transmitting and other unlawful monetary transactions. The federal district court issued a warrant for his arrest. On December 16, 1998, a federal grand jury indicted Tejada. Tejada has never submitted to the jurisdiction of the United States to answer to the federal charges against him.

In 1998, the Task Force filed a motion to dismiss, 1 arguing that the "fugitive from justice" doctrine prohibited Tejada from claiming an interest in the seized funds because he had refused to submit to the jurisdiction of the United States courts. The trial court denied the motion without prejudice, presumably on the authority of Degen v. United States, 517 U.S. 820, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996). The United States Supreme Court in Degen recognized, for the first time, the applicability of fugitive disentitlement in a civil case but held that the doctrine did not permit a federal district court to enter summary judgment in favor of the government in a civil forfeiture action based on a claimant's criminal fugitive status. Id. at 827-29, 116 S.Ct. 1777. The Supreme Court instead required a case specific analysis to determine whether the invocation of the fugitive disentitlement doctrine was warranted. The Court specifically stated, however, that it was not "intimat[ing] a view on whether enforcement of a disentitlement rule under proper authority would violate due process." Id. at 828, 116 S.Ct. 1777. [Emphasis added].

In 2000, the Florida legislature enacted section 896.106, effective July 1, 2000. The statute codified the fugitive disentitlement doctrine and provides:

A person may not use the resources of the courts of this state in furtherance of a claim in any related civil forfeiture action or a claim in a third-party proceeding in any related forfeiture action if

Page 388

that person purposely leaves the jurisdiction of this state or the United States; declines to enter or reenter this state to submit to its jurisdiction; or otherwise evades the jurisdiction of the court in which a criminal case is pending against the person.

II.

We must first address the precise issue that the United States Supreme Court in Degen did not: whether enforcement of a disentitlement rule under proper authority violates due process. We hold that it does not.

The fugitive disentitlement doctrine is more than a century old. See Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970); Bonahan v. Nebraska, 125 U.S. 692, 8 S.Ct. 1390, 31 L.Ed. 854 (1887); Smith v. United States, 94 U.S. 97, 24 L.Ed. 32 (1876). It is a doctrine that springs out of the inherent power of courts to enforce their judgments and protect their dignity. See Martha B. Stolley, Sword or Shield: Due Process and the Fugitive Disentitlement Doctrine, 87 J.Crim. L. & Criminology 751, 778-79 (1997).

The doctrine has been recognized in Florida in criminal cases. In Jaffe v. Snow, 610 So.2d 482 (Fla. 5th DCA 1992), the court held that the spouse of a "fugitive from justice" could not call upon the resources of Florida courts to enforce a money judgment obtained in Canada against a Florida company in connection with a claim for wrongful kidnapping, which stemmed from actions taken to return the fugitive to Florida to answer organized crime charges. We have also applied the "fugitive from justice" doctrine to civil forfeiture cases when they arise out of criminal charges. In Garcia v. Metro-Dade Police Dep't., 576 So.2d 751, 752 (Fla. 3d DCA 1991), we dismissed an appeal solely because the appellant failed to appear for his criminal court trial and remained a fugitive, finding his conduct duplicitous and "repugnant to our inherent sense of equity." Id. at 752. Thus, but for the Degen decision, there would be little doubt as to the constitutionality of losing the right to litigate in a forfeiture proceeding connected with a criminal prosecution from which one has absconded.

Degen recognized that there are five reasons for applying the doctrine: 1) the risk of delay or frustration in determining the merits of the claim; 2) the unenforceability of the judgment; 3) the compromising of a criminal case through the use of civil discovery mechanisms; 4) the indignity visited on the court based upon the fugitive's absence from a criminal proceeding; and 5) flight deterrence. See Degen, 517 U.S. at 825-28, 116 S.Ct. 1777. The Supreme Court held that to dismiss a case based on the latter two reasons alone was an excessive response to those concerns, particularly where such action was predicated only on the court's inherent power. Id. at 828-29, 116 S.Ct. 1777. The import of the decision was that Congress could grant district courts such a power. By enacting section 896.106, that is precisely what the Florida legislature has done.

III.

Tejada also argues that section 896.106 is incorrectly being applied retroactively. We disagree. All that Tejada had to do to avoid the application of the statute was to renounce his status as a fugitive. The trial court did not dismiss his claim because Tejada had used the resources of the courts prior to the application of the statute. The claim was properly dismissed because, after the effective date of the statute, Tejada would be using the resources of our courts to litigate his entitlement to funds which the Task Force

Page 389

is seeking to forfeit. Tejada would have the State of Florida empanel a jury and utilize our scarce courtroom resources to pursue his claim after the effective date of the statute. As a practical matter, counsel for Tejada could never explain how this would have been more than an exercise in futility.

It is Tejada's flight or his continued refusal to appear in the face of judicial action that is the critical predicate to his disentitlement. His own actions or inactions as a fugitive after the enactment of the statute is what prevents him from pursuing his claim to the funds. An oft-quoted definition of retroactivity is that of Justice Story in Society for the Propagation of the Gospel v. Wheeler, 22 F. Caves. 756, 767 (C.C.D.N.H.1814) quoted in Sturges v. Carter, 114 U.S. 511, 519, 5 S.Ct. 1014, 29 L.Ed. 240 (1885): "[E]very statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability,in respect to transactions or considerations already past, must be deemed retrospective." (Emphasis added). As the critical predicate to disentitlement is the continued refusal to answer the pending criminal charges, Tejada's rights are not impaired by his conduct preceding the effective date of the statute, but by his absence after its effective date of July 1, 2000. 2

"A statute does not operate 'retrospectively' merely because it is applied in a case arising from conduct antedating the statute's enactment or upsets expectations based in prior law. Rather, the court must ask whether the new provision attaches...

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