U.S. v. Eng, 1432

• Decision Date: 17 May 1991
• Docket Number: D,No. 1432,1432
• Citation: 951 F.2d 461
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Johnny ENG, Claimant-Appellant, Certain Real Property and Premises, Known as 218 Panther Street Newfoundland, Pennsylvania, 69 Gauldy Avenue, Staten Island, New York, and 21 Norman Drive, Staten Island, New York, Certain Honda All-Terrain Vehicles, Yamaha Snowmobiles, a Certain Yong Chang, G185 Piano, Serial Number 004201, Defendants. ocket 91-6013.
• Court: U.S. Court of Appeals — Second Circuit

Page 461

951 F.2d 461

UNITED STATES of America, Plaintiff-Appellee, v. Johnny ENG, Claimant-Appellant Certain Real Property and Premises, Known as 218 Panther Street Newfoundland, Pennsylvania, 69 Gauldy Avenue, Staten Island, New York, and 21 Norman Drive, Staten Island, New York, Certain Honda All-Terrain Vehicles, Yamaha Snowmobiles, a Certain Yong Chang, G185 Piano, Serial Number 004201, Defendants.

No. 1432, Docket 91-6013.

United States Court of Appeals Second Circuit.

Argued May 13, 1991.

Decided May 17, 1991.

Opinion: Dec. 3, 1991.

Kenneth Joseph Kukec, Miami, Fla. (Albert J. Krieger, Susan W. Van Dusen, Albert J. Krieger, P.A., of counsel), for claimant-appellant.

Arthur P. Hui, Asst. U.S. Atty. E.D.N.Y., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., Robert L. Begleiter, Asst. U.S. Atty., of counsel), for plaintiff-appellee.

Before CARDAMONE, WALKER and FRIEDMAN, ^* Circuit Judges.

CARDAMONE, Circuit Judge:

This appeal arises as a result of the efforts of a defendant, detained in a foreign jurisdiction, to avoid criminal prosecution in the United States, while attempting at the same time to assert his claim to real property in this country, allegedly purchased with the proceeds of his criminal activities. It has been a truism for nearly half a millennium that "one cannot eat his cake and have it too." Defendant of course may elect to oppose extradition, but that choice has negative consequences that he may not evade. For the reasons discussed below, we affirm the August 21, 1990 decision of the United States District Court for the Eastern District of New York

(Raggi, J.) 745 F.Supp. 118, holding that appellant Johnny Eng is disentitled from contesting a civil forfeiture proceeding instituted by the government against real property Eng claims ownership of so long as he continues to fight extradition that would return him to the United States to face criminal charges pending against him.

BACKGROUND

In August, 1989 a grand jury in the Eastern District of New York returned an indictment against Eng on charges that he operated a continuing criminal enterprise in violation of 21 U.S.C. § 848(b), and on 17 additional charges under the narcotics laws, all involving the alleged sale of heroin. The continuing criminal enterprise offense carries a mandatory term of life imprisonment without parole. Eng had been detained in Hong Kong on suspicion of violating a local ordinance, and the authorities in that British Crown Colony on August 17, 1989 arranged for his release to Interpol agents pursuant to a detainer issued under Article VIII of the Extradition Treaty between the United States and the United Kingdom. The detainer was the result of a provisional arrest warrant requested by the United States under the Treaty. Since his arrest Eng has resisted extradition to the United States where the government seeks to prosecute him on the continuing criminal enterprise and narcotics charges.

In December, 1989, several months after Eng's arrest, the government filed under 21 U.S.C. § 881(a)(6) (1988) a civil in rem forfeiture action in the Eastern District of New York against certain real property located in New York and Pennsylvania. An amended verified complaint filed on February 15, 1990 charged that the properties were purchased with the proceeds of the narcotics offenses for which Eng had been indicted. Arrest warrants against the properties in rem issued, listing Eng, his wife, his sister-in-law, and his uncle as potential claimants. The arrest warrants, an amended verified complaint, and a set of interrogatories were served on the properties on March 1, 1990, and copies also were served on Eng's relatives between March 7 and March 10, 1990. In addition, the government by publication on March 12-14, 1990 in the New York Post gave notice of its pending civil action.

On March 15, 1990 Eng's wife and uncle filed verified notices of claims to certain of the properties. Also on March 15, Eng filed a motion for an order to show cause why the subject properties should not be released summarily from arrest or, in the alternative, for a dismissal of the government's claims to the properties outside New York, or for an indefinite stay of the civil proceedings pending the conclusion of any criminal proceedings against him. Eng's motion stated that he was a potential claimant to the properties but did not identify what, if any, interest he had. He asserted in addition that the government had failed to provide him with proper notice of the action.

The government served notice on Eng personally in his Hong Kong prison cell on March 23, 1990. On May 1, 1990 it moved for an entry of a decree of forfeiture against the properties based on the failure of any potential claimant to file a verified answer to the complaint within the applicable 20-day period. See Mercado v. United States Customs Service, 873 F.2d 641, 644-45 (2d Cir.1989) (describing the forfeiture process). On May 25, 1990 the district court heard oral argument on the government's motion for a default judgment, on Eng's motion, and on the motions of claimants Lori Eng and Chik Kun Wong, Eng's wife and uncle, respectively, for leave to file responses to the government's amended verified complaint and interrogatories. Several days later the motions of Eng's wife and uncle to file untimely verified answers was granted, and a default judgment on those properties for which no verified claim had been filed. At the hearing the court heard argument on whether Eng himself was entitled to contest the forfeiture procedures, given his continued resistance to extradition.

On August 21, 1990, after further proceedings, Judge Raggi granted a default judgment against Eng, denied his application

                for an order to show cause or to dismiss the action, and held that Eng lacked both statutory standing and was disentitled to be heard because of his resistance to extradition.   The district court opinion is reported at 745 F.Supp. 118 (E.D.N.Y.1990).   A default judgment in favor of the United States was entered on August 30, 1990.   It is that judgment which Eng now appeals
                

DISCUSSION

On appeal Eng raises two issues. He contends that the district court erred in finding that (1) he was a fugitive and therefore not entitled to be heard in this civil forfeiture proceeding, and (2) he lacked statutory standing to challenge the forfeiture because he failed to file his claim timely under Admiralty Rule C(6). As a preliminary matter, he asserts that the district judge confused the concept of standing--without which he is barred from maintaining his civil action--with the concept of disentitlement, which is not jurisdictional. See Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 498-99, 24 L.Ed.2d 586 (1970). We do not view the district court's action as confusing these two concepts. Rather, it dealt with them disjunctively, stating that Eng's failure to file a claim and answer timely deprive him of standing to contest the forfeiture proceeding, and that his active opposition to extradition disentitles him, in any event, from being heard in the civil proceedings even to request a stay. See 745 F.Supp. at 122.

I Disentitlement

The principal question before us is whether the doctrine of disentitlement--that holds a person who is a fugitive from justice may not use the resources of the civil legal system while disregarding its lawful orders in a related criminal action--should bar appellant from participating in the civil forfeiture proceedings. Appellant asserts that he is not a fugitive from justice and that, even if he is, the doctrine should not apply in his case.

A. Fugitive Status

Eng declares in his brief that he is a fugitive, if at all, only "by the barest of legal fictions." To the contrary, that Eng is a fugitive rests on sound, legal footing, not on fictions. In United States v. Catino, 735 F.2d 718 (2d Cir.), cert. denied, 469 U.S. 855, 105 S.Ct. 180, 83 L.Ed.2d 114 (1984), the defendant, an American, was convicted and sentenced for narcotics trafficking in the Southern District of New York, but fled to France prior to his surrender date. While abroad he was arrested and held to answer charges under French law, pursuant to a provisional arrest warrant issued at the request of the United States. Catino resisted United States efforts to extradite him. During the pendency of the extradition proceedings, he was convicted on the French charges and sentenced to five years in prison. The French government then opposed the United States' extradition request on the ground that Catino had already been convicted in France for the same criminal conduct alleged against him by the United States. Extradition was subsequently denied. After serving his sentence in France, Catino was expelled from that country and returned to the United States where he was promptly arrested. Id. 735 F.2d at 719-21.

Catino contended, in his Southern District trial on charges of bail jumping and securing a passport under a false name, that the statute of limitations barred the government from prosecuting him. The prosecution argued that the statute of limitations was tolled on these charges pursuant to 18 U.S.C. § 3290 because Catino was a fugitive during the relevant period. Fleeing from justice does not, as the words literally connote, mean a person "on the run." One may flee though confined in prison in another jurisdiction. Fleeing from justice is not always a physical act; it may be a state of mind. When a person purposely leaves the jurisdiction or decides not to return to it, in order to avoid prosecution, he is a fugitive. See 735 F.2d at 722. Thus, a defendant with notice of criminal charges who actively resists returning from abroad to face those charges is a fugitive from justice, even when he has Since his Hong Kong arrest in August 1989, Eng has resisted extradition and has refused to sign an affidavit stating that he wished to return to the United States to contest...