U.S. v. Forty-Five Thousand Nine Hundred Forty Dollars ($45,940) in U.S. Currency, FORTY-FIVE

• Decision Date: 11 July 1984
• Docket Number: D,No. 1329,FORTY-FIVE,1329
• Citation: 739 F.2d 792
• Parties: UNITED STATES of America, Plaintiff-Appellee, v.THOUSAND NINE HUNDRED FORTY DOLLARS ($45,940) IN UNITED STATES CURRENCY (Terry C. McKay, Claimant), Defendants-Appellants. ocket 84-6012.
• Court: U.S. Court of Appeals — Second Circuit

Page 792

739 F.2d 792

UNITED STATES of America, Plaintiff-Appellee, v. FORTY-FIVE THOUSAND NINE HUNDRED FORTY DOLLARS ($45,940) IN

UNITED STATES CURRENCY (Terry C. McKay, Claimant),

Defendants-Appellants.

No. 1329, Docket 84-6012.

United States Court of Appeals, Second Circuit.

Argued June 7, 1984.

Decided July 11, 1984.

Kenneth A. Cohen, Niagara Falls, N.Y. (Gellman, Cohen & Grasmick, Niagara Falls, N.Y., of counsel), for defendant-appellant Terry Claude McKay.

George A. Yanthis, Asst. U.S. Atty., N.D.N.Y., Albany, N.Y. (Frederick J. Scullin, Jr., U.S. Atty., N.D.N.Y., Albany, N.Y., of counsel) for plaintiff-appellee United States.

Before OAKES and WINTER, Circuit Judges, and MISHLER, District judge. ^*

MISHLER, District Judge:

Terry E. McKay appeals from a judgment of the United States District Court for the Northern District of New York, Neal P. McCurn, J., granting the government's motion for judgment on the pleadings. The basis of Judge McCurn's decision is that Terry McKay is a fugitive from justice and is therefore disentitled to call upon the resources of the court for determination of his claims in the related civil forfeiture proceeding. For the reasons stated below, we affirm the judgment of the district court.

FACTS

On May 20, 1981, Terry C. McKay, a Canadian resident, entered the United States at Churubusco, New York. The road he was travelling on did not lead to a border inspection station. He was stopped by a border patrol agent who directed McKay to follow him to the Champlain, New York Port of Entry. At the border station, McKay completed a customs declaration report as required under 31 U.S.C. Sec. 5316 (formerly U.S.C. Sec. 1101). ¹ The government alleges that this report contains a material misstatement because McKay did not report being in possession of more than $5,000 when he crossed the border in violation of 31 U.S.C. Sec. 5316. The government contends that this violation subjects the $45,490 to forfeiture under 31 U.S.C. Sec. 5317(b). ² McKay admits having the $45,490 in his possession when he crossed the border but denies making a material misstatement in the report at the border station.

After filing the report, McKay was charged with entering the United States without inspection because he had been originally travelling on a road that did not lead to a border station. He pled guilty, served ten days in jail, and was involuntarily deported at the request of the United States on June 19, 1981. On September 24, 1981, McKay submitted a petition for the remission of the forfeited $45,490. After receiving the petition for remission of forfeiture, the United States Customs Service referred the matter to the United States Attorney's Office for the Northern District of New York.

On October 14, 1981, a federal grand jury sitting in Albany, New York returned an indictment charging McKay with violating 18 U.S.C. Sec. 1001 in making a false statement to the United States Customs Service when he entered the United States from Canada. The indictment charged that McKay stated that he did not possess over $5,000 when he actually possessed $45,940. The United States instituted this action on November 12, 1981 to enforce forfeiture of the $45,940 pursuant to 31 U.S.C. Sec. 5317(b).

McKay filed a claim for the currency on December 21, 1981 and answered the complaint on April 30, 1982. McKay also filed a motion to stay the forfeiture action pending resolution of his petition for remission of forfeiture. Judge McCurn denied that motion on April 17, 1982.

While the civil forfeiture case was progressing, McKay refused to appear at his In a memorandum of decision and order dated October 3, 1983, Judge McCurn granted the government's motion for judgment on the pleadings, Fed.R.Civ.P. 12(c) in this civil forfeiture proceeding unless McKay appeared within thirty days at his arraignment in the criminal proceeding. McKay never appeared at his arraignment and Judge McCurn's judgment became final on November 2, 1983. McKay now appeals from that judgment on the grounds that he was deprived of his property without due process of law and that there were material issues of fact in dispute making application of Rule 12(c), Fed.R.Civ.P., inappropriate.

arraignment on the criminal charge. He refused to appear at his arraignment on the ground that to do so would be in violation of the immigration laws because of his prior deportation. The Department of Justice, through the United States Attorney, informed the court and McKay's attorney that if he entered the United States for his arraignment, the government would not prosecute him for any violation of the immigration laws. The government contends that violating 18 U.S.C. Sec. 1001 is not an extraditable offense and McKay's refusal to reenter the United States and appear at his arraignment classifies him as a fugitive, resulting in a waiver of his rights to defend the related civil forfeiture proceeding. McKay asserts that the offense is extraditable. He argues that because the government failed to take the necessary steps to extradite him, he retains his right to participate in the civil forfeiture proceedings.

DISCUSSION

This case presents us with two primary issues: whether McKay is a fugitive from justice and if so, whether such status bars him from defending the related civil forfeiture proceeding.

I.

McKay has refused to appear at his criminal arraignment. He contends that he is not a fugitive from justice because he was involuntarily deported from this country by the United States Department of Justice, Immigration and Naturalization Service and was prohibited from reentering the United States for one year following the deportation pursuant to 8 U.S.C. Sec. 1182(a)(16) and thereafter by 8 U.S.C. Sec. 1182(a)(17).

Title 8 U.S.C. Sec. 1182 provides in pertinent part:

(a) Except as otherwise provided in this chapter, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States.

(16) Aliens who have been excluded from admission and deported and who again seek admission within one year from the date of such deportation, unless prior to their reembarkation at a place outside the United States or their attempt to be admitted from foreign contiguous territory the Attorney General has consented to their reapplying for admission;

(17) Aliens who have been arrested and deported, or who have fallen into distress and have been removed pursuant to this chapter or any prior act, or who have been removed as alien enemies, or who have been removed at Government expense in lieu of deportation pursuant to section 1252(b) [8 U.S.C. Sec. 1252(b) ] of this title, and who seek admission within five years of the date of such deportation or removal, unless prior to their embarkation or reembarkation at a place outside the United States or their attempt to be admitted from foreign contiguous territory the Attorney General has consented to their applying or reapplying for admission; ³ Subsection 16 concerns aliens who have not been admitted into the United States and, rather than holding deportation proceedings, the Immigration and Naturalization Service conducts an exclusion hearing ⁴ and, if appropriate, expels them to their native country (i.e., Canada or Mexico). ⁵ Such aliens are barred from admission (without prior consent of the Attorney General) for only one year. See generally Landon v. Plascencia, 459 U.S. 21, 26 n. 4, 103 S.Ct. 321, 326 n. 4, 74 L.Ed.2d 21 (1982); H.R.Rep. No. 264, 97th Cong. 1st Sess., reprinted in 1981 U.S.Code & Admin.News, 2577, 2589. This subsection is not relevant to McKay because he was involuntarily deported, not excluded. Subsection 17 appears to be relevant to McKay's status. He was arrested and deported. If he had sought to reenter the United States, then he would have had to comply with subsection 17 and the rules promulgated by the INS to administer it. These rules, codified in 8 C.F.R. Sec. 212.2(b) provide in pertinent part:

(b) Alien applying to consular officer for nonimmigrant visa or nonresident border crossing card. Permission to reapply for admission to the United States after deportation or removal, within five years of the date of such deportation or removal for an alien who is applying or will apply to a consular officer for nonimmigrant visa or nonresident border crossing card, shall be requested through the consular officer and may be granted only in accordance with section 212(a)(17) [8 U.S.C. Sec. 1182(a)(17) ] and (d)(3)(A) [8 U.S.C. Sec. 1182(d)(3)(A) ] of the Act and Sec. 212.4 [8 C.F.R. Sec. 212.4] of this part. However, the alien may apply for such permission on Form I-212....

Subsection 17 and 8 C.F.R. Sec. 212.4(b) provide that an alien who has been arrested and deported and who seeks to reenter the United States seek permission to reapply for admission through the United States Consulate which then makes a recommendation to the Attorney General. The Attorney General decides whether to grant the alien permission to apply for admission. See Landon, supra, 459 U.S. at 26 n. 4, 103 S.Ct. at 326 n. 4; Der-Rong Chour v. INS, 578 F.2d 464, 468 (2d Cir.1978), cert. denied, 440 U.S. 980, 99 S.Ct. 1786, 60 L.Ed.2d 239 (1979). This requirement is valid under Congress' broad power to control the admission of aliens. See generally Kleindienst v. Mandel, 408 U.S. 753, 766, 92 S.Ct. 2576, 2583, 33 L.Ed.2d 683 (1972). "[I]n the exercise of its broad power over immigration and naturalization, 'Congress regularly makes rules that would be unacceptable if applied to citizens.' " Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478, 52 L.Ed.2d 50 (1977) (quoting Mathews v. Diaz, 426 U.S. 67, 80, 96 S.Ct. 1883, 1891, 48 L.Ed.2d 478 (1976)). The Supreme Court has "long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control." Id. (quoting ...