U.S. v. Timbers Preserve, Routt County, Colo., No. 92-1222

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBALDOCK, Circuit Judge, WOOD, Jr.; HARLINGTON WOOD, Jr.
Citation999 F.2d 452
PartiesUNITED STATES of America, Plaintiff-Appellee, v. TIMBERS PRESERVE, ROUTT COUNTY, COLORADO, Vacant Land at Lots 1 and 3, including all profits therefrom and all proceeds relating thereto, Defendant, Joseph H. PIETRI, Claimant-Appellant.
Docket NumberNo. 92-1222
Decision Date06 July 1993

Page 452

999 F.2d 452
26 Fed.R.Serv.3d 568
UNITED STATES of America, Plaintiff-Appellee,
v.
TIMBERS PRESERVE, ROUTT COUNTY, COLORADO, Vacant Land at
Lots 1 and 3, including all profits therefrom and
all proceeds relating thereto, Defendant,
Joseph H. PIETRI, Claimant-Appellant.
No. 92-1222.
United States Court of Appeals,
Tenth Circuit.
July 6, 1993.

Richard C. Kaufman, Asst. U.S. Atty., Denver, CO (Michael J. Norton, U.S. Atty., with him on brief) for plaintiff-appellee.

Robert W. Cook, Boulder, CO, for defendant-appellant.

BALDOCK, Circuit Judge, WOOD, Jr., Senior Circuit Judge, * and EBEL, Circuit Judge.

HARLINGTON WOOD, Jr., Senior Circuit Judge.

This case began in January 1992 with the filing of a verified complaint by the United

Page 453

States pursuant to 18 U.S.C. § 981 and 21 U.S.C. § 881 seeking the forfeiture of two lots of real property in The Timbers Preserve in Colorado. These lots were owned by Joseph R. Pietri. The complaint alleged that Pietri was a member of a drug trafficking organization, had been trafficking in illegal drugs since 1970, and had acquired the property in 1991 with money from that enterprise. The complaint further alleged that Pietri had been indicted in May 1991 for one count of conspiracy and six counts of possession with intent to distribute 100 kilograms of marijuana, but was then a fugitive thought to be living in Laos in Southeast Asia.

Pietri, however, responded by filing a notice of claim and answer to the complaint. The district court struck his pleadings on the government's motion on May 11, 1992, on the basis that Pietri was a fugitive from justice. On May 21, 1992, the court granted the government's motion for default judgment and entered a final order of forfeiture on the property.

This appeal stems from Pietri's motion to set aside the default judgment and relief from final judgment which the district court denied on July 16, 1992. Because we believe the default judgment was properly entered by the court under the fugitive disentitlement theory, we affirm the court's denial of Pietri's motion to set aside that judgment.

I.

The fugitive disentitlement doctrine stems from the Supreme Court's decision in Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970), in which the Court held that an appellate court could dismiss the criminal appeal of a defendant if that defendant is a fugitive from justice. Id. at 366, 90 S.Ct. at 498-99. The Court stated the defendant's fugitive status "does not strip the case of its character as an adjudicable case or controversy," but "it disentitles the defendant to call upon the resources of the Court for determination of his claims." Id. The doctrine relies upon the theory that a fugitive from justice should not be able to use the judicial system while at the same time avoiding it.

The Supreme Court has not applied the disentitlement doctrine in the civil context although other appellate courts have. See Conforte v. Commissioner of Internal Revenue, 692 F.2d 587, 590 (9th Cir.1982); Doyle v. United States Dep't of Justice, 668 F.2d 1365, 1366 (D.C.Cir.1981), cert. denied, 455 U.S. 1002, 102 S.Ct. 1636, 71 L.Ed.2d 870 (1982); Broadway v. Montgomery, 530 F.2d 657, 659 (5th Cir.1976); United States ex rel. Bailey v. United States Commanding Officer, 496 F.2d 324, 326 (1st Cir.1974). Several appellate courts have applied the doctrine in civil in rem forfeiture cases as well. United States v. Eng, 951 F.2d 461, 467 (2d Cir.1991); United States v. One Parcel of Real Estate, 868 F.2d 1214, 1215 (11th Cir.1989); United States v. Pole No. 3172, 852 F.2d 636, 643-44 (1st Cir.1988); United States v. $129,374 in Currency, 769 F.2d 583, 587-89 (9th Cir.1985), cert. denied, 474 U.S. 1086, 106 S.Ct. 863, 88 L.Ed.2d 901 (1986).

The Tenth Circuit has applied Molinaro only in the criminal context. See Brinlee v. Crisp, 608 F.2d 839, 856-57 (10th Cir.1979) (upholding denial of habeas corpus petition when state court dismissed criminal defendant's appeal because he was a fugitive), cert. denied, 444 U.S. 1047, 100 S.Ct. 737, 62 L.Ed.2d 733 (1980); Gonzales v. Stover, 575 F.2d 827, 828 (10th Cir.1978) (same); United States v. Swigart, 490 F.2d 914, 915 (10th Cir.1973); United States v. O'Neal, 453 F.2d 344, 345 (10th Cir.1972). At least two district courts within this circuit have used Molinaro in a civil context. United States v. $182,980 Currency, 727 F.Supp. 1387, 1388 (D.Colo.1990) (granting default judgment in in rem forfeiture case because claimant is a fugitive); Seibert v. Johnston, 381 F.Supp. 277, 279-80 (E.D.Okla.1974) (dismissing a section 1983 case because plaintiff was a fugitive).

In the district court, the judge entered the default judgment in the government's favor on the Molinaro theory that a fugitive from justice should not be able to use the court to file a claim in the forfeiture action. The court relied upon the numerous court decisions which invoked the disentitlement doctrine in civil cases, including civil in rem forfeiture cases. That Pietri was a fugitive

Page 454

from justice was undisputed by the parties. The civil forfeiture action was closely related to the criminal indictment from which Pietri fled as his criminal drug activities supplied the money to purchase the property at stake in the civil action.

Pietri then filed a motion under Rules 55(c) and 60(b) of the Federal Rules of Civil Procedure to set aside the default judgment after he was returned to United States custody. Pietri explained he attempted to return to the United States before the default judgment was entered but was incarcerated in a Laos prison and unable to do so. He further alleged that because he was turned over to United States custody in Thailand on May 20, 1992, and brought back to this country on May 22 that he was therefore no longer a fugitive and could assert his claim. The district court denied his motion holding in its discretion under Rule 60(b) that since the moving party's culpable conduct caused the default, the moving party, Pietri, was not entitled to relief from the default judgment. The court...

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  • Sawyer v. USAA Ins. Co., No. CIV 11-0523 JB/CG
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • 8 Marzo 2012
    ...(iii) whether the nonmoving party setting aside the judgment will prejudice the non-moving party. See United States v. Timbers Preserve, 999 F.2d 452, 454 (10th Cir. 1993). Motions to reconsider because the judgment is void must be brought within a "reasonable time." Fed. R. Civ. P. 60(c). ......
  • Serna v. Webster, No. CIV 17-0020 JB/WPL
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • 30 Septiembre 2017
    ...defense; and (3) the non-moving party will not be prejudiced by setting aside the judgment.'" (quoting United States v. Timbers Pres., 999 F.2d 452, 454 (10th Cir. 1993), abrogated on other grounds by Degen v. United States,Page 65 517 U.S. 820, 825 (1996))). The Tenth Circuit has, at times......
  • United States v. Hopkins, No. CIV 11-0416 JB\WPL
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • 30 Octubre 2018
    ...defense; and (iii) whether setting aside the judgment will prejudice the nonmoving party. See United States v. Timers Preserve, 999 F.2d 452, 454 (10th Cir. 1993). Under some circumstances, a party can rely on rule 60(b)(1) for a mistake by their attorney or when their attorney acted withou......
  • United States v. Rivera, No. CIV 14-0579 JB/CG
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • 30 Junio 2015
    ...defense; and (3) the non-moving party will not be prejudiced by setting aside the judgment.'" (quoting United States v. Timbers Pres., 999 F.2d 452, 454 (10th Cir. 1993), abrogated on other grounds by Degen v. United States, 517 U.S. 820, 825 (1996))). The United States Court of Appeals for......
  • Request a trial to view additional results
135 cases
  • Sawyer v. USAA Ins. Co., No. CIV 11-0523 JB/CG
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • 8 Marzo 2012
    ...(iii) whether the nonmoving party setting aside the judgment will prejudice the non-moving party. See United States v. Timbers Preserve, 999 F.2d 452, 454 (10th Cir. 1993). Motions to reconsider because the judgment is void must be brought within a "reasonable time." Fed. R. Civ. P. 60(c). ......
  • Serna v. Webster, No. CIV 17-0020 JB/WPL
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • 30 Septiembre 2017
    ...defense; and (3) the non-moving party will not be prejudiced by setting aside the judgment.'" (quoting United States v. Timbers Pres., 999 F.2d 452, 454 (10th Cir. 1993), abrogated on other grounds by Degen v. United States,Page 65 517 U.S. 820, 825 (1996))). The Tenth Circuit has, at times......
  • United States v. Hopkins, No. CIV 11-0416 JB\WPL
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • 30 Octubre 2018
    ...defense; and (iii) whether setting aside the judgment will prejudice the nonmoving party. See United States v. Timers Preserve, 999 F.2d 452, 454 (10th Cir. 1993). Under some circumstances, a party can rely on rule 60(b)(1) for a mistake by their attorney or when their attorney acted withou......
  • United States v. Rivera, No. CIV 14-0579 JB/CG
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • 30 Junio 2015
    ...defense; and (3) the non-moving party will not be prejudiced by setting aside the judgment.'" (quoting United States v. Timbers Pres., 999 F.2d 452, 454 (10th Cir. 1993), abrogated on other grounds by Degen v. United States, 517 U.S. 820, 825 (1996))). The United States Court of Appeals for......
  • Request a trial to view additional results

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