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Federal Civil Forfeiture Law - 6th Circuit Law Holds that the Government Must Show Intent to Avoid Criminal Prosecution Under Fugitive Disentitlement Doctrine

Congressman Tim Walberg introduced H.R. 5212 which seeks to restore personal property rights under the Fifth Amendment and ensure due process of law by reforming long-standing civil forfeiture policy.

Current federal forfeiture law allows the Internal Revenue Service (IRS), the Department of Justice (DOJ) and other governmental agencies to seize an individual or entity's property suspected of being connected with a crime.

Within the federal forfeiture law, is the concept of the Fugitive Disentitlement Doctrine.

Initially only applied to criminal appeals where defendants became fugitives from justice, as part of the Civil Asset Forfeiture Reform Act of 2000 (CAFRA) Congress expanded the application of the Fugitive Disentitlement Doctrine to civil forfeiture proceedings and codified 28 U.S.C. § 2466 entitled "Fugitive disentitlement" which provides,

"(a) A judicial officer may disallow a person from using the resources of the courts of the United States in furtherance of a claim in any related civil forfeiture action or a claim in third party proceedings in any related criminal forfeiture action upon a finding that such person-

(1) After notice or knowledge of the fact that a warrant or process has been issued for his apprehension, in order to avoid criminal prosecution-

(A) Purposely leaves the jurisdiction of the United States;

(B) Declines to enter or re-enter the United States to submit to its jurisdiction; or

(C) Otherwise evades the jurisdiction of the court in which a criminal case is pending against the person; and

(2) Is not confined or held in custody in any other jurisdiction for commission of criminal conduct in that jurisdiction.

(b) Subsection (a) may be applied to a claim filed by a corporation if any majority shareholder, or individual filing the claim on behalf of the corporation is a person to whom subsection (a) applies."

In 2004, the Second Circuit, in Collazos v. United States, 368 F.3d 190, 198 (2d Cir.2004), was the first to apply the fugitive disentitlement statute.

Tracking the statutory language, the Second Circuit identified five (5) prerequisites to disentitlement under 28 U.S.C. § 2466:

(1) a warrant or similar process must have been issued in a criminal case for the claimant's apprehension;

(2) the claimant must have had notice or knowledge of the warrant;

(3) the criminal case must be related to the forfeiture action;

(4) the claimant must not be confined or otherwise held in custody in another jurisdiction; and

(5) the claimant must have deliberately avoided prosecution by (A) purposefully leaving the United States, (B) declining to enter or re-enter the United States, or (C) otherwise evading the jurisdiction of a court in the United States in which a criminal case is pending against the claimant.

In United States v. $6,976,934.6, 554 F.3d 123 (D.C.Cir.2009), the D.C. Circuit adopted the Collazos five-element test and held that "the plain language of § 2466 mandates this showing by requiring that, under any of the three ways in which the government can prove evasion of jurisdiction, that evasion must have been ' in order to avoid criminal prosecution."

In U.S. v. Salti, 579 F.3d 656 (6th Cir. 2009), a Northern District of Ohio case, The 6th Circuit held that the claimant's failing health was the reason he was unable to attend forfeiture proceedings and that there was not intent to avoid prosecution.

The claimant had argued that he failed to return to the United States due to bad health. The Sixth Circuit found that if claimant's allegations were true, the Government would not satisfy its burden of proof that the claimant had not returned to the United States in order to avoid prosecution. According to the Sixth Circuit, since there was an issue of fact in this regard, the District Court should not have dismissed the forfeiture action. See Salti, at 662-666. The court held that under these circumstances, discovery and a hearing were not required.

If you or someone who cares about you has any questions regarding Federal civil forfeiture proceedings, please contact Attorney Michael C. Hennenberg to schedule a consultation.

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