Opposition Brief — Geiger v. United States

Supreme Court, U.S.

@ FILED

’ No. 85-898 DEG 20 1985

EE JR.

Bu te Supreme Court ofthe te Sie

OCTOBER TERM, 1985

GERALD M. GEIGER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

JOHN F.. DE PUE

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

|

“BEST AVAILABLE COPY

QUESTION PRESENTED

Whether the conservator of a fugitive’s estate may

intervene in an action seeking forfeiture of certain of

the fugitive’s assets.

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4

TABLE OF CONTENTS

TABLE OF AUTHORITIES

Cases:

Bonahan V. Nebraska, 125 U.S. 692 ......................... 4

Broadway Vv. City of Montgomery, 530 F.2d 657...... 4

Conforte v. Commissioner, 692 F.2d 587, stay de-

RRR, GD Bh, BIDD annnannnanenenewencensencesecerecesescscnanesveene 8, 4,6

Doyle v. United States Department of Justice, 668

F.2d 1365, cert. denied, 455 U.S. 1002 —............. 4

Estelle v. Dorrough, 420 U.S. 534 ............................ 4

Johneon V. Laird, 482 F.2d 77 .................................. 8

Molinaro v. New Jersey, 396 U.S. 365 —.................. 2,3, 4,6

Pepper V. Litton, 308 U.S. 296 .................................. 7

Schuster v. United States, 765 F.2d 1047 ............... 4

Smith v. United States, 94 U.S. 97 ............................ 4

United States ex rel. Bailey v. United States Com-

manding Officer of the Office of the Provost

Sn

United States v. Brock, 747 F.2d 761 ........................

United States v. Eighty-Three Thousand Three

Hundred Twenty Dollars ($83,320) in United

States Currency, 682 F.2d 578 .............................. 5, 7,8

United States v. Forty-Five Thousand Nine Hun-

dred Forty Dollars ($45,940) in United States

21 2

I a seensenneennnts 5,7

United States v. Sharpe, No. 83-529 (Mar. 20,

ek chenansiabeianinninese 4,8

United States v. Snow, 748 F.2d 928 0.00... 8

(111)

Statute and regulations

21 U.S.C. 881 (a) “ sneancennsacnnuUcaneneRTetsnaetnDAARONanenet

19 C.F.R.:

TEE EN ener at Smee NT

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Ga, OD ccstttincncnensinanananserntecnessnntassmnnnentieamntionie

Iu the Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-898

GERALD M. GEIGER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-

A32) is reported at 769 F.2d 583. The orders of the

district court (Pet. App. A33-A39, A40-A48) are un-

reported.

JURISDICTION

The judgment of the court of appeals was entered

on August 21, 1985. The petition for a writ of certi-

orari was filed on November 19, 1985. The jurisdic-

(1)

2

tion of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

1. Petitioner’s brother, Lewis Geiger, was ar-

rested on April 22, 1983, following a search of his

home that uncovered large quantities of cocaine. Law

enforcement officials seized assets discovered in the

home, including $130,000 in United States currency

as well as gold and silver coins and ingots, that they

believed to be proceeds of illegal narcotics transac-

tions and therefore subject to forfeiture pursuant to

21 U.S.C. 881(a)(6). Lewis was released on a

$150,000 surety bond secured by petitioner and peti-

tioner’s wife. Pet. App. A2-A3, Ad,

The government initiated forfeiture proceedings in

June and July 1983 in the United States District

Court for the Southern District of California. Lewis

and his girlfriend contested the forfeiture. In De-

cember 1983, however, Lewis, having been found

guilty of numerous federal narcotics offenses, failed

to appear for his sentencing. The district court de-

clared that the surety bond was forfeited and later

entered judgment on default of the forfeited bond

against petitioner and his wife. Pet. App. A3-A6.

In May 1984, the government moved for summary

judgment in the asset forfeiture action. Petitioner,

who had secured an appointment as conservator of

his fugitive brother’s estate under state law, moved

to intervene in the proceedings. The district court

denied the motion. Pet. App. A33-A39. Relying on

the fugitive disentitlement doctrine enunciated by

this Court in Molinaro v. New Jersey, 396 U.S. 365

(1970), the district court ruled that Lewis Geiger

could not contest the forfeiture in light of his fugi-

tive status and that petitioner, “as conservator of his

brother’s estate, stands in the shoes of his absent

sibling” and therefore is similarly disentitled from

intervening. Pet. App. A38. The district court did,

however, permit Lewis’s girlfriend and former attor-

neys to contest the forfeiture. See id. at A44-A45.

After finding that the government’s evidence was

“more than sufficient to constitute the probable cause

necessary to justify forfeiture of property under 28

U.S.C. § 881(a)(6)” (Pet. App. A46), the district

court entered summary judgment in favor of the gov-

ernment. Jd, at A40-A51

2. The court of appeals affirmed. Pet. App. Al-

A382. The court of appeals noted (id. at Al5) that it

had previously applied the Molinaro disentitlement

doctrine to civil proceedings in Conforte v. Commis-

sioner, 692 F.2d 587 (9th Cir. 1982), stay denied,

459 U.S. 1809 (1983) (Rehnquist, Circuit Justice),

and it concluded that “the limited extension of that

doctrine to this situation is compelled as a matter of

sound policy.” Pet. App. Al9. The court of appeals

reasoned that petitioner’s claim as conservator “is

solely derivative of any claim or defense that Lewis

may maintain,” and that because “the fugitive is de-

prived of presenting any claim or defense in this ac-

tion as the result of his fugitive status, the conserva-

tor of his estate must suffer the same consequences

when he seeks to advance the same claim or defense.”

Ibid. The court concluded that this result would not

prejudice any claimant’s interests, since Lewis “can

terminate his fugitive status and present his own

defense” if he so desires (id. at A20), and assignees

or creditors of the estate—including petitioner—are

free to intervene in forfeiture proceedings on their

own behalf. Jd. at A24-A27.

4

ARGUMENT

The decision of the court of appeals is plainly cor-

rect and warrants no further review. This Court has

consistently held that a defendant’s status as a fugi-

tive “disentitles [him] to call upon the resources of

the Court for determination of his claims.” Molinaro

v. New Jersey, 396 U.S. 365, 366 (1970) ; see Estelle

v. Dorrough, 420 U.S. 534 (1975); Bonahan v. Ne-

braska, 125 U.S. 692 (1887) ; Smith v. United States,

94 U.S. 97 (1876) ; see also United Stic: v. Sharpe,

No. 83-529 (Mar. 20, 1985), slip op. 5-6 2.2; id. at

2-3 (Stevens, J., dissenting). This “longstanding

and established principle of American law” (Dor-

rough, 420 U.S. at 537) is “based on the equitable

principle” (Sharpe, slip op. 6 n.2) that a litigant

brings such disentitlement “upon himself by his

Janus-like conduct in seeking to invoke the processes

of the law while flouting them” as a fugitive from

justice. United States ex rel. Bailey v. United States

Commanding Officer of the Office of the Provost Mar-

. shal, 496 F.2d 324, 326 (1st Cir. 1974).

The courts of appeals have applied the Molinaro

disentitlement doctrine to bar a wide variety of civil

claims by criminal case fugitives. See, e.g., Schuster

v. United States, 765 F.2d 1047 (11th Cir. 1985)

(review of tax assessment); Conforte v. Commis-

sioner, 692 F.2d 587 (9th Cir. 1982) (same) ; Doyle

v. United States Department of Justice, 668 F.2d

1365 (D.C. Cir. 1981), cert. denied, 455 U.S. 1002

(1982) (Freedom of Information Act proceeding) ;

Broadway v. City of Montgomery, 530 F.2d 657 (5th

Cir. 1976) (suit for daimages and injunctive relief) ;

Bailey, 496 F.2d at 326 (challenge to regulation) ;

see also Conforte v. Commissioner, 459 U.S. 1309,

1312 (1983) (Rehnquist, Circuit Justice) (courts of

5

appeals have applied disentitlement doctrine to civil

proceedings “on a number of occasions” and the Court

has “denied certiorari in this type case in the past”).

Like the court of appeals here, the Second Circuit has

ruled, consistently with these cases, that fugitives

may not invoke the judicial process to challenge the

forfeiture of assets acquired in connection with their

criminal activity. United States v. Forty-Five Thou-

sand Nine Hundred Forty Dollars ($45,940) in

United States Currency, 739 F.2d 792, 797-798

(1984).

As petitioner (Pet. 19) and the court of appeals

(Pet. App. A16) note, however, the Sixth Circuit has

permitted a fugitive to appear in a forfeiture pro-

ceeding. United States v. Eighty-Three Thousand

Three Hundred Twenty Dollars ($83,320) in United

States Currency, 682 F.2d 573, 575-576 (1982).

The court of appeals in $83,320 concluded that

the fugitive should be permitted to contest the

forfeiture not to protect his own interests but be-

cause innocent third parties such as creditors might

have claims to the subject assets. The Second Circuit

correctly disposed of this contention in $45,940, rea-

soning that the fugitive’s own disentitlement does not

preclude other claimants from appearing and assert-

ing their own interests in the property. 739 F.2d at

797.

Similarly, the court below limited application of

the disentitlement doctrine to Lewis Geiger, the fugi-

tive, and to petitioner, “the conservator who stood in

Lewis’ shoes.” Pet. App. A24. The court of appeals

noted that other persons were allowed to present their

claims in this action (id. at A24-A25), and it went

on to reason that permitting the fugitive (or his rep-

resentative) to appear would not reasonably further

the interests of third parties:

6

Clearly, the individual who stands to gain most

by allowing the conservator to intervene is Lewis.

Innocent creditors and beneficiaries, if any,

would benefit only secondarily. Moreover, mere

speculation that innocent third parties might

have an interest in the forfeited property is not

sufficient t[o] overcome the application of the

Molinaro/Conforte disentitlement doctrine in this

case. Furthermore, the conservator cannot com-

plain[] of lack of notice to other interested par-

ties. The record clearly reflects that individuals

with an interest in the property had notice of

the forfeiture proceedings. The conservator him-

self was an individual creditor and could have

sought leave to intervene in that capacity.

Id. at A26-A27. The forfeiture statute contemplates

that any third party with an ownership interest in

the property may appear in the action to protect his

rights. See 21 U.S.C. 881(a) (6). Given the ability

of third parties to protect themselves—and the fact

that a fugitive or conservator, if he did appear,

would not necessarily enjoy the same defenses as

would other claimants—there is no reason to con-

struct an exception to the Molinaro doctrine to per-

mit fugitives access to the judicial process in this

context. See Conforte v. Commissioner, supra (bar-

ring fugitive from challenging tax deficiency but per-

mitting his wife to do so). The only person to benefit

in such circumstances would likely be the fugitive

himself.’

1 Contrary to petitioner’s suggestion (Pet. 18), notice to

potential claimants is provided in narcotics asset forfeiture

proceedings. See 19 C.F.R. 162.31, 162.63; 21 C.F.R. 1316.75.

2 The fact that petitioner is the conservator rather than the

fugitive is immaterial because he stands in the shoes of the

7

For a number of reasons, we do not believe that

tas-resolution of the conflict between the decision be-

low and $83,320 is warranted at this time. In the

first place, the Sixth Circuit has not yet had the op-

portunity to reconsider its brief discussion of the dis-

entitlement doctrine in light of the reasoning of the

Second Circuit in $45,940 and the court of appeals in

this case. Moreover, the conflict is of little practical

consequence. In $83,320 itself, the court of appeals

ruled for the government on the merits.‘ Despite the

fugitive in all respects. Pet. App. A19, A24. While petitioner

argues (Pet. 18-19) that he has a duty under state law to

defend the property of the estate, he points to no authority for

the proposition that he would be able to assert more extensive

rights or would be subject to different duties in connection

with the forfeiture proceeding than his brother would be. In

fact, the fugitive presumably would have the same obligations

as the conservator to preserve his assets for claims of credi-

tors and other beneficiaries. Cf. Pepper v. Litton, 308 U.S.

295, 306-307 (1939). Moreover, the court of appeals’ holding

bars a conservator from intervening only where “he seeks to

advance the same claim or defense” as the fugitive. Pet. App.

Al19. If the conservator could, contrary to our submission,

assert a different claim from the fugitive, he would not neces-

sarily be foreclosed from doing so. Finally, distinguishing

between the conservator and the fugitive as petitioner sug-

gests would permit a fugitive (someone with a proven pro-

pensity for flouting the law) to evade the disentitlement doc-

trine merely by asserting his interests through the subterfuge

of a conservatorship.

* Neither the Sixth Circuit nor any other court of appeals

has relied on $83,320 to permit a fugitive or his representa-

tive to appear in a forfeiture proceeding. Cf. United States

v. Brock, 747 F.2d 761 (D.C. Cir. 1984) (finding against

claimant, who was a fugitive at the time of trial, on the

merits without consideration of disentitlement doctrine).

* Accordingly, there was no reason for the government to

seek further review in that case.

8

fact that “escapes by persons engaged in the lucra-

tive business of smuggling narcotics are apparently

not uncommon” (Sharpe, slip op. 2 (Stevens, J., dis-

senting) ), we are not aware of any case in which a

fugitive or his representative has successfully chal-

lenged a government forfeiture.

Further, this case would be an inappropriate one

in which to resolve the conflict because the concern

for the rights of third parties on which the Sixth Cir-

cuit grounded its decision in $83,320 is wholly absent

here: third parties did appear and their claims were

rejected on the merits by the district court. See Pet.

App. A46. Moreover, even if petitioner were granted

the right to intervene, he has not explained how that

would affect the ultimate disposition of the case—the

district court found that the government had pre-

sented “more than sufficient” evidence to justify the

forfeiture (ibid.), and petitioner has not suggested

how his presence would have changed that finding.

Finally, the disentitlement doctrine is equitable and

discretionary in nature, resting as it does on the

courts’ supervisory powers to do justice in each par-

ticular case. See, e.g., United States v. Sharpe, slip

op. 6 n.2; td. at 2-3, 5 n.16 (Stevens, J., dissenting) ;

United States v. Snow, 748 F.2d 928, 930 (4th Cir.

1984); Johnson v. Laird, 4382 F.2d 77, 79 (9th Cir.

1970). Accordingly, the courts of appeals may rea-

sonably adopt somewhat different approaches in their

application of the doctrine.

9

CONCLUSION

The petition for a writ of certiorari should be de-

nied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

JOHN F. DE PUE

Attorney

DECEMBER 1985

Sov. &. GOVERNHENT PRINTING OFFice, 1965 491507 20100