US v. ONE LOT OF US CURRENCY TOTAL. $506,537.00

• Decision Date: 24 February 1986
• Docket Number: No. 85-2130-CIV-SCOTT.,85-2130-CIV-SCOTT.
• Parties: UNITED STATES of America, Plaintiff, v. ONE LOT OF U.S. CURRENCY TOTALLING $506,537.00, Defendant.
• Court: U.S. District Court — Southern District of Florida

628 F. Supp. 1473

UNITED STATES of America, Plaintiff, v. ONE LOT OF U.S. CURRENCY TOTALLING $506,537.00, Defendant.

No. 85-2130-CIV-SCOTT.

United States District Court, S.D. Florida, Miami Division.

February 24, 1986.

Jonathan Goodman, Asst. U.S. Atty., Miami, Fla., for plaintiff.

Robert I. Targ, Pave & Targ, Miami, Fla., for defendant.

FINAL ORDER

SCOTT, District Judge.

This in rem civil forfeiture action came before this Court on February 14, 1986 for a status conference. The United States' Motion For Sanctions, Claimant's Motion For A Protective Order and the United States' request to strike or dismiss Randolph Habibe's claim were before the Court. The parties submitted legal memoranda before the hearing. This Court heard oral argument and took the motions under advisement.

For reasons set forth in more detail below, the Court is dismissing Randolph Habibe's claim with prejudice and granting a final judgment of forfeiture in favor of the United States. In brief, however, this Court is dismissing the claim for two reasons, either one of which is independently sufficient to justify dismissal: (1) Randolph Habibe is a fugitive from justice and is barred from litigating his claim in federal court; and (2) Randolph Habibe has willfully ignored his discovery obligations by repeatedly failing to appear for scheduled depositions, thus subjecting himself to sanctions under Rule 37(d), Federal Rules of Civil Procedure.

As illustrated below, this Court has given Mr. Habibe wide latitude to purge his prior discovery abuses and alter his status as a fugitive from justice. Mr. Habibe, however, has refused this Court's final invitation that he appear for deposition.

FACTUAL BACKGROUND

On August 13, 1983, the defendant currency¹ was seized at Miami International Airport. The United States alleged that the currency should be forfeited to the government under 31 U.S.C. § 5317 because no report of the transportation of the currency was filed with the United States Customs Service, as required by 31 U.S.C. § 5316 and the regulations promulgated by the Secretary of Treasury.

On July 27, 1984, a warrant for Randolph Habibe's arrest was issued. The charges in the arrest warrant—aiding and abetting the failure to file U.S. Customs Form 4790² in connection with the export of the defendant currency—directly relate to the factual scenario underlying this forfeiture action. The forfeiture action against the defendant currency was filed on June 5, 1985.

Randolph Habibe interposed a claim in this in rem civil forfeiture action. Over the past several months, he has filed motions and memoranda with the Court. His counsel has been accorded oral argument. After voluntarily filing a claim, claimant availed himself of the discovery tools open to federal court litigants. For example, he propounded interrogatories to the United States, which answered them.

The United States noticed Mr. Habibe for a deposition on September 20, 1985. Mr. Habibe did not appear for his scheduled deposition. Instead, his counsel advised the United States that Mr. Habibe needed to determine whether he would even come to the United States, where he is facing criminal charges.

Several weeks later, the United States again noticed Mr. Habibe for a deposition, scheduling it for October 23, 1985. Mr. Habibe did not appear for this deposition either. His counsel advised the United States that Mr. Habibe needed additional time in which to work out the details (e.g. the amount of bond) of his surrender to federal law enforcement officials.

The United States sent out a third notice of taking deposition, scheduling Mr. Habibe's deposition for January 16, 1986. Mr. Habibe did not appear. Two days before the deposition, claimant's counsel advised the Assistant United States Attorney that Mr. Habibe was still "arranging" the details of the trip and would not be coming to his scheduled deposition. Claimant did not seek a protective order, assert any objection or otherwise seek to be excused from the deposition.

Confronted with a claimant who willfully and repeatedly failed to appear for scheduled depositions without benefit of court order, the United States filed a Motion For Sanctions, seeking, among other available sanctions, to have Mr. Habibe's claim stricken under Rule 37(d), Federal Rules of Civil Procedure.³

Claimant opposed the motion. In addition, Mr. Habibe filed a motion for a protective order, requesting that the government be compelled to depose him in Aruba.⁴

In claimant's motion for a protective order, he conceded that he does not intend to voluntarily return to the United States. Furthermore, claimant expressly indicated that his failure to appear for his deposition was solely motivated by his desire to avoid the pending criminal charges. By way of example, claimant's motion states that he seeks a protective order "because there is a pending warrant of arrest for claimant" and because "the threat of criminal prosecution precludes claimant from returning to the United States at this time."

Before the status conference, the government submitted a supplemental memoranda of law, pointing out that Mr. Habibe is a "fugitive from justice" who is barred from using the resources of this Court for determination of his claims.

At the status conference, this Court specifically asked claimant's counsel whether Mr. Habibe would be willing to appear for his deposition. In particular, this Court gave claimant an opportunity to purge the prior discovery abuse, inviting him to appear within 10 days (or some other convenient period of time). Claimant's counsel openly refused the offer.

THE FUGITIVE FROM JUSTICE DOCTRINE

As indicated, this Court is dismissing Mr. Habibe's claim, with prejudice, under the so-called "fugitive from justice" doctrine.

It is beyond preadventure that a fugitive from justice is not entitled to litigate his claim in federal court. Simply stated, a fugitive from justice is not entitled to call upon the resources of court for determination of his case. See, e.g., Molinaro v. New Jersey, 396 U.S. 365, 366-67, 90 S.Ct. 498, 499, 24 L.Ed.2d 586 (1970) (convicted appellant's status as a federal fugitive "disentitles the defendant to call upon the resources of the Court for determination of his claims"); Broadway v. City of Montgomery, 530 F.2d 657, 659 (5th Cir.1976) ("fugitive from justice is not entitled to call on the resources of an appellate court").

The fugitive-from-justice bar has been applied to all types of legal proceedings. See, e.g. United States Ex. Rel. Bailey v. U.S. Commanding Officer, 496 F.2d 324 (1st Cir.1974) (habeas corpus petition dismissed because petitioner escaped from military custody and refused to return); Doyle v. United States Department of Justice, 668 F.2d 1365 (D.C.Cir.1981), cert. denied, 455 U.S. 1002, 102 S.Ct. 1636, 71 L.Ed.2d 870 (1982) (Freedom of Information Act plaintiff not entitled to call upon resources of the court because he is a fugitive from justice).

In fact, the fugitive-from-justice rule has been used to bar claimants, such as the one involved in the instant case, from determining their case in civil forfeiture actions. See e.g., United States v. $45,940 In U.S. Currency, 739 F.2d 792 (2d. Cir.1984) (a Canadian who was a fugitive from justice in a United States prosecution was not entitled to assert a claim in a civil forfeiture proceeding).

Claimant, Randolph Habibe, is a federal fugitive from justice. Criminal charges have been pending against him for more than a year (the arrest warrant was issued on July 27, 1984). Habibe has not returned to this country since the warrant was issued. To the contrary, he has deliberately stayed out of this country. Furthermore, he has refused this Court's offer to appear for a deposition.

Claimant incorrectly argued (albeit without citing any supporting authority) that he is not a fugitive from justice because he already returned to Aruba by the time the arrest warrant was issued. This factor, however, is not controlling because a person who learns of charges while legally outside the jurisdiction "constructively flees" by deciding (as Habibe has done) not to return.

The fugitive from justice provision of 18 U.S.C. § 3290 (tolling the statute of limitations to "any person fleeing from justice") encompasses the concept of "constructive flight" because there is no meaningful distinction between those who leave a country and those persons, such as Mr. Habibe, who refuse to return after learning of criminal charges pending against them. Jhirad v. Ferrandina, 536 F.2d 478 (2d Cir.1976), cert. denied, 429 U.S. 833, 97 S.Ct. 97, 50 L.Ed.2d 98 (1976). Mr. Habibe, therefore, is a fugitive from justice. See United States v. $45,940 in United States Currency, 739 F.2d 792 (2d Cir.1984) (Canadian fugitive from justice barred from pursuing his claim in a civil forfeiture proceeding— even though the criminal charges were filed after he left the country and even though he would need to apply for admission to the United States after being deported).

As succinctly stated in United States v. Catino, 735 F.2d 718, 722 (2d Cir.1984), cert. denied, ___ U.S. ___, 105 S.Ct. 180, 83 L.Ed.2d 114 (1984):

The intent to flee from prosecution or arrest may be inferred from a person's failure to surrender to authorities once he learns that charges against him are pending. (citations omitted). This is true whether the defendant leaves the jurisdiction intending to avoid prosecution or, having learned of charges while legally outside the jurisdiction, "constructively flees" by deciding not to return. (emphasis supplied).

By way of providing context, this court notes that claimant's conduct is inherently inequitable. Claimant has taken advantage of the rights accorded litigants— but wants to avoid the associated duties. He is trying to use this Court's processes as a sword while attempting to simultaneously shield himself from the same type of judicial process. This type of...