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STATUTORY INTERPRETATION--Due Process No Match for Civil Asset Forfeiture when Playing Hide and Seek with Fugitives.

STATUTORY INTERPRETATION--Due Process No Match for Civil Asset Forfeiture when Playing Hide and Seek with Fugitives--United States v. Batato, 833 F.3d 413 (4th Cir. 2016).

In the Fifth Amendment of the United States Constitution, the Due Process Clause protects defendants by ensuring that they are not "deprived of life, liberty, or property, without due process of law." (1) The Civil Asset Forfeiture Reform Act of 2000 (CAFRA), traditionally known as the Fugitive Disentitlement Doctrine, may conflict with the Due Process Clause because its main function is to deprive defendants, who flee from criminal prosecution, of their property and from defending their rights to that property. (2) In United States v. Batato, (3) the United States Court of Appeals for the Fourth Circuit decided whether using CAFRA to disentitle the defendants from claiming their property in other countries violated their Fifth Amendment Due Process rights. (4) The Fourth Circuit held that CAFRA did not violate the defendants' Due Process rights by prohibiting them from using the United States' courts to defend their property claims when they refused to submit themselves to criminal prosecution in the United States. (5)

In September 2005, Finn Batato and his co-defendants created a website scheme that they called "Mega Conspiracy." (6)

The scheme consisted of controlling many public websites that reproduced and supplied "copies of copyrighted motion pictures, computer software, television programs, and musical recordings." (7) The defendants profited from this scheme by infringing on the copyrighted material and then laundering the money for themselves. (8) The defendants were successful in this scheme until January 5, 2012, when they were indicted for conspiracy to commit racketeering, criminal copyright infringement, aiding and abetting of copyright infringement, and conspiracy to commit money laundering. (9) After the defendants were indicted, the government discovered that the defendants had been hiding the money in New Zealand and Hong Kong, which caused the government to send restraining orders to stop the withdrawal of those assets. (10) Additionally, on January 20, 2012, the New Zealand Ministry of Foreign Affairs and Trade complied with requests from the United States to arrest the defendants in order to have them extradited, but following the arrests, the defendants were released on bail. (11)

Both Hong Kong and New Zealand approved the United States' restraining orders on the defendants' assets, but New Zealand's orders were set to expire on April 18, 2014. (12) The New Zealand Court of Appeals was allowed to extend the orders for one more year, making April 18, 2015, the new expiration date; however, under New Zealand domestic law, the orders could not be extended again. (13) Due to the impending expiration date, the United States had no other alternate recourse except to file a civil forfeiture action against the defendants, which it did with a verified complaint on July 29, 2014. (14) In response, on August 28, 2014, the defendants filed a claim to the assets in dispute and on October 10, 2014, they also filed a motion to dismiss or stay the action. (15) The government moved, on November 18, 2014, to strike the asset claims of the defendants, which the district court granted on March 13, 2015. (16) The government then asked for a default judgment on March 25, 2015, which it was awarded in the form of forfeiture orders, and the defendants filed for an appeal. (17)

The U.S. Constitution gives federal courts certain inherent powers including the power to sanction and punish certain individuals who do not respect the power and authority of the court system. (18) The power to sanction and punish these individuals arises from the belief that the federal appellate courts have a responsibility to "set reasonable procedural rules in its management of litigation." (19) While the Constitution authorizes the federal courts with these powers, it also limits them by using the Fifth Amendment's Due Process Clause, which guarantees a fair and just court hearing before "[depriving] [a defendant] of life, liberty or property." (20) There has been some debate within the court system about what the "right to a hearing" actually means; one side of the argument states that it is a right to actually be heard in front of a judge, while the other side argues that it simply means that an opportunity was presented to be heard, whether the individual took that opportunity or not. (21) The debate has intensified since Congress turned the principle of Fugitive Disentitlement into a statute allowing its use in Civil Forfeiture actions. (22)

The Doctrine of Fugitive Disentitlement has existed since the later half of the 19th century when the United States Supreme Court decided Smith v. United States, (23) where it held that a criminal defendant, who flees from the court's jurisdiction, was not entitled to an appeal. (24) Traditionally, the doctrine was only applied to criminal cases as is evidenced in Molinaro v. New Jersey, (25) where a criminal defendant, who was out on bail and failed to surrender, had his appeal dismissed with prejudice. (26) Following the decision in Molinaro, some Circuit Courts of Appeal would allow the extension of its rationale to civil contexts including Civil Forfeiture actions, whereas others would forbid it. (27) The Sixth Circuit was the first court to address, and subsequently decline, extension in United States v. $83,320, (28) reasoning that there could be other claimants to the property and to forfeit it would punish those innocent claimants. (29) The First Circuit and the Seventh Circuit followed this reasoning in declining to extend the Fugitive Disentitlement Doctrine to Civil Forfeiture Actions stating reasons including failure to meet the "closely related" requirement between the forfeited assets and the criminal case as well as declaring that the extension would be too broad and that it violates due process. (30) In contrast, the Second, Ninth, Eleventh, and Tenth Circuits all agreed to extend the doctrine citing that the rationale behind the doctrine logically allows for its use in Civil Forfeiture. (31)

The United States Supreme Court acknowledged that there was a need to discuss the application of the Fugitive Disentitlement Doctrine to Civil Forfeiture Actions in Degen v. United States, (32) however, it declined to answer whether disentitlement should only apply to criminal cases and whether disentitlement violates due process. (33) The Court did suggest that the legislature could take care of the application conflicts by creating a statute, which Congress did in producing CAFRA in 2000. (34) CAFRA has its roots in traditional English common law where property used in wrongdoing was surrendered to the government and either destroyed or given to charities that would make good use of it. (35) The purposes of the modern equivalent, in the form of CAFRA, are to "to take the instrumentalities of crime out of circulation," and "to take the profit out of crime" by seizing assets that have been used criminally and repurposing them to help fund law enforcement practices. (36) One of the first cases showcasing these purposes was Collazos v. United States, (37) where the Second Circuit held that CAFRA did not violate due process because the defendant waived her due process rights after refusing to re-enter the United States for her Civil Forfeiture hearing. (38)

In United States v. Batato, (39) the Fourth Circuit analyzed whether the use of CAFRA to disentitle the defendants from their property in other countries violated their Due Process rights under the Fifth Amendment. (40) Specifically, the Court defined "the right to be heard" as allowing each defendant the opportunity to be heard rather than an absolute right to actually be heard. (41) It reasoned that as long as the defendants were given the chance to benefit from a hearing, then their due process rights have been met. (42) The Court then stated that the defendants chose not to attend their hearing due to their refusal to enter the country, and therefore, they knowingly waived their rights (43) The Court explained that if the defendants were entirely innocent of the allegations against them, then they would have no problem entering the country to defend themselves (44) Furthermore, in a country where defendants are given many procedural safeguards within the court system, the fact that the defendants will not enter the country to face the charges against them gives the appearance that their defense lacks merit and that they did, in fact, obtain these assets illegally. (45)

The Fourth Circuit continued to explain that where a defendant has placed a presumption of guilt upon himself, disentitlement no longer acts as a punishment, but rather is an inevitable manifestation of trying to use the court system to acquire only benefits. (46) The Court reasoned that the defendants knew of the consequences of their actions because they continued to delay disposition of this action and persisted to rapidly spend their assets despite the restraining orders (47) The Court articulated that where the government has tried other less obstructive procedures to protect its interests in the case, these "exigent circumstances" necessitate more restrictive measures. (48) The Fourth Circuit then announced that the government had every right to bring the Civil Forfeiture Action against the defendants to prevent them from reaping the benefits of their illegal enterprise as well as to protect the government interests in the case. (49)

The Fourth Circuit in United States v. Batato, (50) was correct in holding that applying [section] 2466 of CAFRA to disentitle the defendants from their assets did not violate the Due Process Clause, however, its reasoning missed the mark. (51) It reasoned that the "right to be heard" should be strictly interpreted to mean that a mere opportunity is sufficient to meet the requirements of Due Process, rather than interpreting it to mean an actual hearing where the defendants are genuinely heard. (52) De fining "the right to be heard" as a mere opportunity is not enough to safeguard the defendants' rights because it is allowing the government to easily encroach on an individual's property rights without having to prove anything, which defies the purpose of the Due Process Clause. (53) It follows logically that to take away an individual's most basic rights, there would need to be something more than just one missed hearing because, as the Supreme Court stated in Degen, seizing assets based on that alone would be premature. (54) The Supreme Court was accurate when it reasoned that the government's filing of a civil forfeiture action should be a last resort because the government should make every attempt to protect a defendant's rights until the need to protect its own interests outweighs its duty to the defendant. (55) When a court determines that the government does have a dire need to protect its own interests, only then should [section] 2466 of CAFRA be applied to disentitle the defendant and take away his rights. (56)

Additionally, the Fourth Circuit attempted to reason that the defendants created a presumption of guilt rather than innocence because their non-appearance at the hearing served as an admission that their defense lacked merit. (57) This reasoning is unconvincing because the defendants should keep their presumption of innocence until the government has actually shown, through evidence, that they violated certain laws, which has not yet occurred in this case. (58) The government, however, should be able to entice the defendants to return to the United States to face prosecution and protect the government's own interests, but it is not necessary to presume the defendants' culpability to reach this goal. (59) The Court should have rationalized its holding using the fact that the defendants were spending all of the assets and were purposefully delaying the proceedings, even after the government attempted to subdue them from doing so with restraining orders. (60) The government's actions in producing the restraining orders and having them renewed show the type of exigent circumstances that the Supreme Court was looking for in order to justify disentitlement and this reasoning would have ultimately been stronger if subjected to appeal. (61)

In future cases involving [section] 2466 and the Due Process Clause, other circuits will most likely follow the precedents from before [section] 2466 was enacted because there is no principal guidance on its application. (62) The Supreme Court, when it is eventually faced with this decision, will probably follow its own reasoning in Degen because it is the closest it has come to ruling on the application of Fugitive Disentitlement to Civil Asset Forfeiture. (63) Moreover, [section] 2466 was created following the Supreme Court's suggestion that Congress form a statute on Fugitive Disentitlement to help guide courts in their decisions, so there is an incentive for the Supreme Court to allow the statute's application more freely. (64) Without the Supreme Court deciding, due process rights may be violated because each circuit will have to continue setting its own precedent for the statute's application. (65)

In United States v. Batato, (66) the Fourth Circuit decided whether [section] 2466 of CAFRA violated the defendants' Fifth Amendment Due Process rights by ordering them disentitled from their assets. While the Court's conclusion was correct, based on its exigent circumstances rationale, that basis was the only sound reasoning that would hold up during appeal. The other rationale was based on assumptions and went against basic criminal law principles rather than following the Supreme Court's precedent. In future cases discussing [section] 2466, the Fourth Circuit should bolster its holding with more explanation on the exigent circumstances allowing disentitlement and spend less time making unreasonable assumptions. Despite the faulty reasoning, the Fourth Circuit's holding that the defendants' Due Process rights were not violated by applying [section] 2466 of CAFRA to disentitle them from their assets was correct because of the "exigent circumstances" surrounding the seizure.

(1.) U.S. Const. Amend. V--Due Process (limiting court's power to take from individuals). The Fifth Amendment states:
   No person shall be held to answer for a capital, or otherwise
   infamous crime, unless on a presentment or indictment of a Grand
   Jury, except in cases arising in the land or naval forces, or in
   the Militia, when in actual service in time of War or public
   danger; nor shall any person be subject for the same offence to be
   twice put in jeopardy of life or limb; nor shall be compelled in
   any criminal case to be a witness against himself, nor be deprived
   of life, liberty, or property, without due process of law; nor
   shall private property be taken for public use, without just
   compensation.


Id. The Due Process Clause is buried amongst the amendment's other limitations on courts including the requirement of Grand Jury Indictments for Capital Crimes, the clauses against Double Jeopardy and Self-incrimination as well as the Takings without Just Compensation clause. Id.

(2.) See 28 U.S.C.A. [section] 2466 (presenting Fugitive Disentitlement Doctrine in statute form). Traditionally, the Civil Asset Forfeiture Reform Act of 2000 (CAFRA) was a common law doctrine known as the Fugitive Disentitlement Doctrine. Id. The Civil Asset Forfeiture Reform Act of 2000 declares that the Fugitive Disentitlement can be applied lawfully to Civil Forfeiture Actions. It states:
   (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 reenter
   the United States to submit to its jurisdiction; or (C) otherwise
   evades the jurisdiction of the court in which a criminal ease 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.


Id.

(3.) 833 F.3d 413, 426 (4th Cir. 2016) (stating issue as one of first impression). The Fourth Circuit's opinion described how in a United States Supreme Court case, this particular issue was left for a later decision. Id. The Court acknowledged that the Supreme Court insinuated that it might be able to answer the open ended question if Congress created a statute on the application of the Fugitive Disentitlement Doctrine to Civil Forfeiture. Id. The Supreme Court, in addition to giving this suggestion, also did not opine on whether this kind of statute would violate Due Process or other Constitutional principles. Id. "It was against this backdrop that CAFRA was enacted by Congress, and this appeal presents this Court with its first opportunity to pass upon that open question." Id.

(4.) Batato, 833 F.3d at 425 (deciding on disentitlement violating Due Process as issue). The defendants' appealed the lower court's decision on various theories including Due Process violations stating that the lower court did not establish that the defendants' had sufficient minimum contacts to grant jurisdiction and the defendants had not been given a right to be heard. Id. at 422-23, 425. The issue of whether invoking the Fugitive Disentitlement Act (also known as CAFRA) violated the Fifth Amendment's Due Process Clause was only one issue on appeal. Id. at 425. The first issue the Fourth Circuit dealt with was whether another statute, 28 U.S.C.S. [section] 1355, dictating fines, penalties and forfeitures, gave the Court jurisdiction over this case. Id. at 423. A second issue on appeal was whether allowing the court jurisdiction under [section] 1355 violated the defendants' Fifth Amendment Due Process rights. Id.

(5.) Batato, 833 F.3d at 425-26 (dictating Court's holding on disentitlement and Due Process violations). "As [section] 2466 predicates disentitlement on an allowable presumption that a criminal fugitive lacks a meritorious defense to a related civil forfeiture, we find it does not violate the Due Process Clause of the Fifth Amendment and affirm the district court's decision." Id. at 429.

(6.) See Response Brief of the United States of America at 4, United States v. Batato, 833 F.3d 413 (4th Cir. 2016) (No. 15-1360) (giving dates and background on Mega Conspiracy). See also Batato, 833 F.3d at 413 (naming all defendants in action). Batato's co-defendants and claimants to the assets are Bram van der Kolk, Julius Bencko, Mathias Ortmann, Sven Echternach, Kim Dotcom, Megaupload Limited, Megapay Limited, Vestor Limited, Megamedia Limited, Megastuff Limited, Mona Dotcom. Id. These co-defendants and claimants are all claiming ownership of the assets listed in attachment A, plus the "interest, benefits, and assets traceable thereto." Id. See also Verified Complaint for Forfeiture in Rem at [paragraph] 7, United States v. Batato, 833 F.3d 413 (4th Cir. 2016) (No L14CV969) (describing each of defendants' roles in conspiracy). Kim Dotcom (a.k.a. Kim Schmitz a.k.a. Kim Tim Jim Vestor) lives in both Hong Kong and New Zealand, but is a citizen of Finland and Germany and is the Founder of Megaupload Limited and Megamedia Limited. Id. He was the Chief Executive Officer for Megaupload Limited until around August 14, 2011, when he became the Chief Innovative Officer until the indictment was passed down. Id. As the founder, he hired within nine countries and ended up with thirty employees as well as coordinating the payments to computer servers in various countries and distributing the profits. Id. Dotcom also distributed the links to the copies of the copyrighted material before and after receiving copyright infringement takedown notices from third party companies using the Digital Millenium Copyright Act (DMCA), which he ignored on various occasions. Id. In 2010, Dotcom made at least $42 million as the CEO and CIO. Id. Finn Batato is a citizen of Germany and continues to live there. Verified Complaint at [paragraph] 10. He was hired to be the Chief Marketing and Sales Officer for Megaupload, which meant that he supervised ten other sales people, who were sometimes in other countries. Id. He also distributed at least one link to a copy of copyrighted material and received, then promptly ignored, the DMCA takedown notices. Id. Batato earned $400,000 in 2010. Id. Julius Bencko is a citizen of and also lives in Slovakia. Id. at [paragraph] 11. He was employed as the Graphic Director, which meant he was the head graphic designer for each website. Id. He allegedly "requested and received at least one infringing copy of copyrighted work" and also earned at least $1 million in 2010 in his position at Mega Conspiracy. Id. Sven Echternach, like Batato, is a citizen of, and lives in, Germany. Id. at [paragraph] 12. He worked as the Head of Business Development for both sites with his main assignment as "removing [the] illegal [and] abusive content from the ... websites." Id. Echternach's idea of removal was really just hiding the infringed copies to make it more difficult for the copyright holders to find and report them. Id. He also received the takedown notices and earned at least $500,000 from Mega Conspiracy in 2010. Id. Mathias Ortmann is a citizen of and lives in Germany, but also claims to live in Hong Kong. Id. at [paragraph] 13. He worked as the Chief Technical Officer, co-founder, and a director of one of the websites. Id. He was also "authorized] to distribute [the] funds from one of the [Mega] Conspiracy's main financial accounts." Id. In 2010, he earned $9 million through his positions at the Mega Conspiracy. Id. "Andrus Nomm is a citizen of Estonia" where he lives in addition to Turkey. Id. at [paragraph] 14. He worked as a software programmer and Head of the Development Software Division, which earned him $100,000 in 2010. Id. The final defendant, Bram van der Kolk (a.k.a. Bramos) lives in the Netherlands and New Zealand, but is a Dutch citizen. Id. at [paragraph] 15. He held the position of the programmer in charge, which made him "responsible for responding to [the] DMCA ... takedown notices" earning him $2 million in 2010. Id. See also United States v. All Assets in Attachment A, and All Interest, Benefits, and Assets Traceable Thereto, Defendants in rem., 89 F. Supp. 3d 813, n. 2 (describing takedown of one of defendants). All Assets is the district court title for the case-in-chief. Id. at 818. One of the defendants, Nomm, has already plead guilty to the charge of conspiracy to commit copyright infringement. Id. He also agreed, as part of the plea deal, to forfeit his assets that he earned through the conspiracy. Id. He was given one year and one day as a sentence for his guilty plea. Id. Nomm is also "the only one of the defendants in the criminal action to have been arrested by U.S. authorities." Id.

(7.) Response Brief of the United States at 4 (detailing types of copyrighted materials provided through Mega Conspiracy). One of Mega Conspiracy's websites, Megaupload.com, claimed responsibility for "four percent of the total traffic on the internet." Id. See Verified Complaint at f 17 (giving statements of defendants about copyrighted materials). "The members of the Mega Conspiracy described themselves as 'modern day pirates' and virtually every aspect of the Mega Sites was carefully designed to encourage and facilitate wide-scale copyright infringement." Id. at [paragraph] 20. One of the defendants, or claimants, Ortmann is known to have said that, "if there was 'a world ending nuclear war,' Megaupload 'could serve as a pretty complete archive of the world's intellectual property for a coming generation.'" Id. at [paragraph] 17. Ortmann was also known to have said, "what warner bros. will say when they see crystal clear BD rips [infringing copies of Blu-ray discs] instead of the usual blurry video?," to which another defendant, Van der Kolk, replied, "yeah will be even more pissed off:) ... Hollywood will curse us:)." Id. at [paragraph] 22. Ortmann's statements show just how much stolen property the Mega Conspiracy had at the height of their scheme. Id. at [paragraph] 17. Megaupload also attained copyrighted materials from its users. Id. at [paragraph] 18. The users would visit the website and upload files that would then give them a URL that they could distribute to their friends and to other websites for download. Verified Complaint at [paragraph] 18. These users would be rewarded for their efforts with a "Uploader Rewards" program. Id. at [paragraph] 20. Under the rewards program, the users would be paid money in amounts that were determined by their upload's popularity among other users. Id.

(8.) See All Assets, 89 F. Supp. 3d at 818 (explaining how defendants profited from scheme using criminal acts). See also Verified Complaint at [paragraph] 16 (reporting profits of defendants and harm to copyright owners). Through the government's investigation, it discovered that the defendants had an estimated income of at least $175 million. Id. The defendants earned this money from stealing the copyrighted material from its true owners, in the amount of $500 million. Id. Van der Kolk, a defendant, is known to have discussed with his co-defendant, Ortmann, "that 'more than 90%' of the Mega Conspiracy's 'profit' was specifically derived from 'infringing files.'" Id. at [paragraph] 39. The defendants used this copyrighted material to sell subscriptions to their users, which earned them at least $150 million at one point in time. Id. at [paragraph] 37.

(9.) See All Assets, 89 F. Supp. 3d at 818 (stating defendants' indicted crimes). The defendants were indicted under 18 U.S.C. [section] 1962(d) for conspiracy to commit racketeering, 17 U.S.C. [section] 506 and 18 U.S.C. [section] 2319 for criminal copyright infringement, 18 U.S.C. [section] 371 for conspiracy to commit copyright infringement, 18 U.S.C. [section] 2 for aiding and abetting of copyright infringement, and 18 U.S.C. [section] 1956(h) for conspiracy to commit money laundering. Id. The defendants were also indicted, on February 16, 2012, under a superseding indictment charging a violation of 18 U.S.C. [section] 1343 for wire fraud. Id. See also Verified Complaint at [paragraph] 4-6 (detailing how indictment of defendants can come from United States). The United States District Court for the Eastern District of Virginia was allowed to indict the defendants because it had subject matter jurisdiction, in rem jurisdiction, and the proper venue over the proceedings. Id. "This Court has in rem jurisdiction over the Defendant Properties under 28 U.S.C. [section] 1355(b)(2) because they are located in foreign countries, or have been detained and seized pursuant to competent authority of foreign governments." Id. at [paragraph] 5. One of the ways that the defendants profited from their conspiracy was through the use of paid subscriptions. Id. at [paragraph] 40. The Mega Conspiracy users would use PayPal, which is an American company, to pay for their premium subscriptions. Id. As an American company, all of PayPal's servers are within the United States, mostly in the Eastern District of Virginia, where the defendants were originally indicted. Id. Therefore, the defendants created minimum contacts by using those servers to conduct their business. Id.

(10.) See Response Brief of the United States, supra note 6, at 5-6 (indicating government's determination of asset locations). The government found that the defendants had assets that totaled $75 million. Id at 5. The assets in New Zealand "were valued at ... $15 million, including $8 million in New Zealand Government Bonds, two houses worth ... $3 million; luxury cars; bank accounts; and other items worth about $4 million." Id. at 6. In Hong Kong, the U.S. government discovered that there was $60 million split between thirteen bank accounts. Id. at 5. Following the restraining orders, both New Zealand and Hong Kong released some of the frozen funds to the defendants to help pay for legal fees and living expenses around July 2013. Id. at 5, 7. The funds in Hong Kong have stayed complete for the most part, even though the defendants have tried at various times to have all of their funds released. Id. at 5. In New Zealand, however, the courts have been more liberal with releasing funds to the defendants. Id. at 7. The courts have released $16,000 per month for the Dotcoms', two of the defendants' living expenses as well as an additional amount for Kim Dotcom, individually, in the form of $25,000 per month. Id. Dotcom also receives $4.75 million for his legal fees and $790,000 for his rent with another $141,990 to maintain the residence. Id.

(11.) See All Assets, 89 F. Supp. 3d at 818 (highlighting actions of New Zealand Ministry of Foreign Affairs and Trade after receiving arrest request). The requests were sent on January 13, 2012 and two of the defendants, not present in New Zealand at the time, still remain in their home countries of Slovakia and Germany. Id. One of the defendants has also already been arrested by the United States. Id. at n. 2. "[Andrus] Nomm was arrested on February 9, 2015 and pled guilty" four days later on February 13, 2015. Id. As part of the plea agreement, he agreed to plea to the charge of conspiracy to commit copyright infringement, to forfeit his assets that he attained through the conspiracy, and to serve one year and one day, but he would not pay a fine. Id.

(12.) See All Assets, 89 F. Supp. 3d at 818-19 (detailing steps taken in New Zealand with U.S. restraining orders). New Zealand registered the restraining orders from the United States and placed conditions on the defendants in terms of their assets. Id. at 818. The assets were only to be withdrawn for living expenses until the orders were to expire on April 18, 2014. Id. at 818-19. In New Zealand, the restraining orders were issued by the New Zealand High Court, which had "original and appellate jurisdiction over criminal and civil matters." Id. at n. 3. The High Court is analogous to the U.S. District Courts in that they are the lowest courts. Id. The Court of Appeal of New Zealand hears appeals from the High Court and all of the lower courts and finally, like in the United States, there is a Supreme Court, which is the last resort for appeals. Id.

(13.) See Response Brief of the United States, supra note 6, at 6 (analyzing reasoning behind New Zealand's failure to continue extending restraining orders). The U.S. restraining orders in New Zealand could only be registered for enforcement for two years, but could be extended for one year if the need arose. Id. The restraining orders were registered on April 18, 2012, which placed their expiration on April 18, 2014. Id. The New Zealand Courts extended the orders once they had expired in 2014, making their new expiration date April 18, 2015. Id. The one year extension was reliant on the U.S. courts actually obtaining forfeiture of the assets within that final year. Id. This condition prompted the United States to finally file its Civil Forfeiture Action because if it had not filed and the orders had expired, then the assets would have been returned to the defendants with no other way for the United States to seize them. Id. See also Criminal Proceeds (Recovery) Act 2009, s 41 (N.Z.), http:/ /www.legislation.govt.nz/act/public/2009/0008/ latest/whole.html#DLM1451168 (stating New Zealand law on restraining order extensions). The New Zealand Court's were following a New Zealand Statute known as the Criminal Proceeds Recovery Act of 2009, which describes how New Zealand handles forfeitures and proceeds made during criminal enterprises. Id. at Part 2. Section 41 of the Act is titled "Extending Duration of Restraining Order" and gives instructions on when it is appropriate to extend the restraining orders. Id. at [section] 41. It states:
   (1) If a court has made a restraining order, the applicant for that
   order may, before the restraining order expires, apply to that
   court to extend its duration; (2) If an application is made under
   subsection (1), the court may order that the operation of the
   restraining order be extended for a period not exceeding 1 year;
   (3) The duration of a restraining order may be extended more than
   once under this section; (4) If, before a restraining order would
   otherwise expire under section 37(1), an application is made to a
   court under this section and the application is granted, the
   restraining order ceases to be in force on the date specified in
   the court's order.


Id.

(14.) See All Assets, 89 F. Supp. 3d at 817 (declaring when government filed complaint for forfeiture action). The United States knew it was running out of time to seize the assets, so it filed a verified complaint for forfeiture in rem, meaning forfeiture of the property. Id. The government correctly argued that the District Court could decide the case because it had in rem jurisdiction over the property in Hong Kong and New Zealand. Id. at 822. Under 28 U.S.C. [section] 1355(b)(2), the United States can still have jurisdiction over property in foreign countries as long as the acts leading up to the forfeiture action occurred in the United States. Id. In this case, those acts involved using the computer servers located in the Eastern District of Virginia to upload the illegally obtained copyrighted material. Id.

(15.) See All Assets, 89 F. Supp. 3d at 817-18 (showcasing defendants' actions while filing motion to dismiss or to stay forfeiture action). The defendants argued that before the court can "decide their motion to dismiss," it must determine whether it even had jurisdiction to hear the case. Id. at n. 4. The Court reasoned that it did have subject matter jurisdiction and in rem jurisdiction, meaning that ultimately, it could decide the fugitive disentitlement claim as well. Id. at 820, 823. The defendants had claimed there was no subject matter jurisdiction because the government had not proved that any federal statutes had been violated, however, this argument was rejected using 28 U.S.C. [section] 1345 and 28 U.S.C. [section] 1355(a). Id. at 819. Both of those statutes allow the district courts to have original jurisdiction over forfeiture actions when they are "incurred under any Act of Congress," which was the case here. Id. The defendants then claimed that there is no in rem jurisdiction because their assets are in New Zealand and Hong Kong rather than in the United States. Id. at 822. This argument was also rejected by the Court using 28 U.S.C. [section] 1355(b)(2), which allows for jurisdiction over property even when it is in foreign country because the acts that led to the forfeiture proceeding took place in the United States. Id. The Court could then decide the fugitive disentitlement claim as it established that it had both subject matter and in rem jurisdiction over the case. Id. at 820-23.

(16.) See Response Brief of the United States, supra note 6, at 8 (describing lower court's holding). See also All Assets, 89 F. Supp. 3d at 835 (declaring its holding as lower court). "... [T]he court hereby orders that the government's motion to strike is granted and all claimants are disentitled from litigating the civil forfeiture complaint pursuant to 28 U.S.C. [section] 2466." Id. The lower court also struck and dismissed all of the other claims of the defendants including their motion to dismiss. Id. The Court cited lack of standing as the reason for dismissal. Id.

(17.) See Batato, 833 F.3d at 418 (discussing defendants' appeal to court). The court granted default judgment in favor of the government and ordered forfeiture of the defendants' assets located in New Zealand and Hong Kong. Id. The defendants' appealed this order arguing that the district court did not have jurisdiction over the assets, the award of jurisdiction had violated the defendants' due process rights, and the application of [section] 2466 also violated their due process rights. Id. at 413. See also Verified Complaint at [paragraph] 5 (reasoning jurisdiction was proper). The government had argued in its complaint that the District Court did have in rem jurisdiction using 28 U.S.C. [section] 1355(b)(2), which allows the United States to go after foreign assets that "are located in foreign countries, or have been detained and seized pursuant to competent authority of foreign governments." Id.

(18.) See Chambers v. Naseo, Inc., 501 U.S. 32, 44-45 (1991) (explaining federal courts' inherent powers). Federal courts have a duty to hear cases in an efficient manner where the courts can be objective and keep control of the courtroom. Id. During court proceedings and other hearings, courts can impose punishments for those parties who are misbehaving and not respecting the authority of the court. Id. See also Martha B. Stolley, Sword or Shield: Due Process and the Fugitive Disentitlement Doctrine, 87 J. Crim. L. & Criminology 751, 752-53 (1996) (giving background on history of courts sanctioning misbehaving individuals). Federal courts are limited in their inherent powers by the U.S. Constitution, statutes, case law, and reasonableness. Id. As the objective branch of government, courts must remain neutral fact finders, so that justice can be done. Id. Sometimes justice means allowing the court to use their inherent powers to keep order and peace in the courtroom, even if that means punishing or sanctioning one of the parties to a case because they have shown a blatant disregard for the sanctity of the courtroom. Id.

(19.) Kiran H. Griffith, Fugitives in Immigration: A Call for Legislative Guidelines on Disentitlement, 36 Seattle U. L. Rev. 209, 210 (Fall, 2012) (reasoning why courts can sanction individuals). Federal courts have inherent powers to create rules to maintain order and it has been held that the Fugitive Disentitlement Doctrine falls into this rationale. Id. The Fugitive Disentitlement Doctrine's basis is to keep the court system functioning efficiently by keeping disrespectful defendants from reaping the benefits of the system without also taking on the negative aspects of it. Id. The courts have an interest in seeing people punished for disrespecting and abusing the court system. Id. See Chambers, 501 U.S. at 42 (detailing specific inherent powers of the courts). Courts are allowed to impose sanctions under Federal Rules of Civil Procedure Rule 11 as well as through its inherent powers; it does not have to choose one over the other, it could be both. Id. The sanctions made by the court are usually based on a defendant's bad faith. Id. The types of actions that courts can punish include contempt proceedings, false or frivolous proceedings, fraud upon the court, and any other bad faith conduct. Id.

(20.) U.S. Const. Amend. V, supra note 1 (defining rights within amendment). See also Stolley, supra note 18, at 772-73 (expressing how due process imposes limitations upon courts). While the federal courts may have inherent powers to keep order and peace within the system, the U.S. Constitution's Fifth Amendment Due Process Clause, especially in criminal cases, also limits them. Id. The Due Process Clause limits courts and protects defendants by reinforcing the need for a fair hearing, without which violate an individual's rights. Id. The courts have to work in connection with these limitations if they want their power to sanction individuals to continue. Id. Some federal court cases see the court's sanction power as violative of Due Process because it, in effect, denies individuals their right to be heard such as in the case of Hovey v. Elliot. Id. at 770 (citing Hovey v. Elliot, 167 U.S. 409 (1897)). In that case, a lower court had struck and ordered a default judgment against the defendant because the defendant was being held in contempt. Id. The appeals court reversed stating that the defendant's due process rights had been violated, which made the lower court's holding unconstitutional. Id. at 770.

(21.) See Stolley, supra note 18, at 772-73 (discussing meaning behind right to judicial hearing). The right to a hearing could mean either that there has to be a hearing where all parties attend, or that there was an opportunity to attend a hearing and not all of the parties attended. Id. The former viewpoint is based in the idea that the hearing is meant to be meaningful and the defendant has a right to actually be heard regarding the allegations against him or her. Id. The latter viewpoint is based on efficiency maintenance and a strict reading of the Due Process Clause. Id. Some argue that this latter viewpoint only promotes procedure rather than actual fairness and justice. Id. "Th[e] hearing must be substantive, not simply an empty exercise in procedure." Id. at 772. Those who argue that viewpoint also believe that there is no action that should be able to take away a person's right to be heard because it is such a fundamental right in American jurisprudence. Id. at 773. In the case of the Fugitive Disentitlement Doctrine in the context of a civil forfeiture proceeding, the fact that there needs to be a logical connection between the seized assets and the criminal charges does not create enough of a reason for someone's property to be taken away without a hearing or the right to be heard and explain oneself. Id. See also Degen v. United States, 517 U.S. 820 (1996) (showcasing other viewpoint of opportunity for hearing as enough). In this case, the government argued that providing the defendant with an opportunity to be heard was enough to meet the standard for due process and when defendant did not appear for that hearing, he was punished with asset forfeiture. Id. at 822-23. The Supreme Court did not agree with this contention, however, and instead found that there were no exigent circumstances requiring the government to proceed with a forfeiture hearing in such close temporal proximity to the missed hearing. Id. at 824-25. The Court explains that it had custody of the defendant's assets meaning that there was no risk of them disappearing with the fugitive defendant. Id. It was under this rationale that the Court concluded that the forfeiture hearing was untimely and while the government did have probable cause to seize the property, the Court believes that the defendant deserves a right to be heard on the matter. Id. at 827.

(22.) See Degen, 517 U.S. at 828 (inviting proper authority to fix disentitlement rule in context of civil forfeiture). In the Degen case, the court stated, "[w]e need not, and do not, intimate a view on whether enforcement of a disentitlement rule under proper authority would violate due process." Id. See also Stolley, supra note 18, at 773-74 (discussing holding in Degen case). The Degen Court did not make a ruling on whether due process is violated when the Fugitive Disentitlement Doctrine is applied to civil forfeiture. Id. at 774. Without a ruling on this issue, courts could have continued to apply the Fugitive Disentitlement Doctrine to civil forfeiture without worrying about violating the Constitution in the process. Id. at 772-73; Griffith, supra note 19, at 222-24 (discussing court's hint to congress on Fugitive Disentitlement Statute). Scholars believe that the "proper authority" sentence from the Degen opinion was a clear signal to Congress to create an act that would be constitutional and allow the Fugitive Disentitlement Doctrine to apply to civil forfeiture in limited circumstances. Id. at 224. Congress took the hint and created the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), which allows the application of disentitlement to forfeiture. Id. CAFRA has not been questioned yet as to due process or other constitutional issues, but for now it is the safe, legal way to seize fugitive defendant's property. Id. See also N. Brock Collins, Fugitives and Forfeiture--Flouting the System or Fundamental Right?, 83 Ky. L.J. 631, 637 (1995) (describing various meanings of fugitive). In addition to the due process issues beginning with the common law doctrine itself, and now with the statutory version, there has also always been confusion behind the meaning of "fugitive," with it being widely interpreted from someone who escapes from prison to someone "who leaves the jurisdiction for the purpose of avoiding arrest, prosecution, or extradition to answer for the alleged crime." Id. Traditionally, a fugitive was someone who fled imprisonment, such as an escaped convict fleeing from jail while his case was on appeal. Id. at 636. Over the years, the meaning of fugitive progressed and changed based on the times and the various cases that needed courts to define the word's meaning. Id. at 637. It still holds on to its traditional meaning, but its meaning has expanded to include someone who escapes the court's jurisdiction before even being arrested or indicted or someone who purposely leaves the country to escape "arrest, prosecution, or extradition" in connection to a crime he or she has committed. Id. at 637. The meaning of the word has also been interpreted in terms of jurisdiction with some arguing that one is only a fugitive from a specific jurisdiction, which does not bar appeals in every court. Id. Others argue, and the case law agrees, that it does not matter which jurisdiction the fugitive is fleeing from, any jurisdictional fleeing will bar appeal. Id. at 637-38.

(23.) Smith v. United States, 94 U.S. 97 (1876) (reasoning defendants who flee cannot have appeal). The Supreme Court held that where a defendant is no longer under the control of the court's jurisdiction due to his flight, then his appeal from criminal conviction can be struck from the court's docket. Id. It stated:
   It is clearly within our discretion to refuse to hear a criminal
   case in error, unless the convicted party, suing out the writ, is
   where he can be made to respond to any judgment we may render. In
   this case it is admitted that the plaintiff in error has escaped,
   and is not within the control of the court below, either actually,
   by being in custody, or constructively, by being out on bail. If we
   affirm the judgment, he is not likely to appear to submit to his
   sentence. If we reverse it and order a new trial, he will appear or
   not, as he may consider most for his interest. Under such
   circumstances, we are not inclined to hear and decide what may
   prove to be only a moot case.


Id.

(24.) See Stolley, supra note 18, at 753-54 (describing rationale behind disentitlement). Courts have reasoned that if a defendant is not willing to take on the negative aspects of the court system, then he or she should not be allowed to reap the benefits accrued from that same court system that he or she is abusing. Id. at 754-55. The belief is that defendants who flee are trying to force courts into giving them a favorable outcome, which courts reject because they are supposed to be objective and base rulings on the facts and the evidence. Id. Courts also have no way to enforce judgments, favorable or unfavorable, against the defendants because they are not present. Id. at 754. See also Griffith, supra note 19, at 214 (discussing reasoning of disentitlement). There has also been some rationale about how to undo fugitive disentitlement including returning to the "jurisdiction on or before the first day of its next term." Id. Once a fugitive defendant returns to the court's jurisdiction, it regains control of the defendant and can therefore impose sentences and judgments upon him. Id. While the defendant is still a fugitive, however, the court has no control and would be hard pressed to gain control outside of its own jurisdiction in order to impose judgment. Id\ Collins, supra note 22, at 631 (explaining minimal affect courts had on fugitives outside of their control).

(25.) Molinaro v. New Jersey, 396 U.S. 365 (1970) (affirming dismissal of defendant's hearing due to fugitive status). In this case, the defendant, Molinaro, was convicted of providing an abortion and for conspiracy to provide that abortion. Id. This case analogizes fugitive disentitlement to forfeiture of bail for non-appearance. Id. The defendant in this case did not appear and had his bail revoked, but was also considered a fugitive. Id. The Court reasoned that there was "[n]o persuasive reason" to allow the defendant's criminal case to be decided, on his request, when he escaped from the same jurisdiction that was trying to help him. Id. at 366. It also reasons that the case could still be decided on its merits, but due to the lack of respect shown to the court by the case's proponent, meaning the defendant, the court does not want him to use the court's resources. Id.

(26.) See Molinaro, 396 U.S. at 366 (dismissing fugitive defendant's appeal using disentitlement). The Court stated, "[w]hile such an escape does not strip the case of its ... controversy, we believe it disentitles the defendant to call upon the resources of the Court for determination of his claims." Id. See also Stolley, supra note 18, at 755 (explaining reasoning in allowing disentitlement). In Molinaro, the Court continued to follow its rationale from Smith, where it wanted to sanction those who defied its authority. Id.; Collins, supra note 22, at 638 (explaining extension of Molinaro opinion). While it continued to follow the rationale, it also expanded the older decisions by giving future courts the precedent and reasoning it needed to apply disentitlement to civil forfeiture cases. Id. It extended the rationale to include the defendant's waiver of his due process rights because of his failure to show up to his pre-determined hearing. Id.

(27.) See Stolley, supra note 18, at 756-60 (listing all circuit courts and their decisions on disentitlement with civil forfeiture). The Sixth, First, and Seventh Circuits all refused to extend the Fugitive Disentitlement Doctrine to Civil Forfeiture Actions because of the Due Process issues and the fear that this application would strip defendants, and inferentially all individuals, of their Constitutional rights. Id. These Circuit Courts also state that to apply disentitlement to forfeiture would be too broad of an interpretation and would do too much to punish a defendant. Id. Once the Seventh Circuit joined the Sixth and the First Circuits, some scholars argue that this shows a return to a more narrow view of the disentitlement doctrine rather than a continuation of the more modern view. Id. at 760. The Second, Ninth, Eleventh, and Tenth Circuits, however, were all quick to allow the application of disentitlement to forfeiture based on the idea that defendants who flee the system should not be rewarded by it. Id. at 756-60. The Second Circuit was the first to expand the disentitlement to civil forfeiture with the Ninth Circuit following in its footsteps shortly after and also prohibiting successors in interest from defending claims over the assets. Id. at 757-58. The Eleventh Circuit cited the connection between the forfeited assets and the criminal enterprise as the rationale behind its extension. Id. at 759. The Tenth Circuit stuck with the "willful disregard for the court" reasoning behind its decision. Id. at 759-60. The Third, Fourth, Fifth, and Eighth Circuits have not had the chance to make decision regarding this issue. Id. at 756-60.

(28.) United States v. $83,320 in United States Currency, 682 F.2d 573 (6th Cir. 1982) (holding disentitlement could not apply to civil forfeiture appeal). In this case, the defendant's assets were seized after he was arrested for drug trafficking. Id. at 574. The police had executed a search warrant on his house where they found the illegal narcotics. Id. The defendant pled guilty and was released on bail, which was $500,000, to await his sentencing. Id. He never arrived for his sentencing hearing. Id. The government then filed a complaint for forfeiture and a hearing occurred where two DEA agents testified, but no evidence was presented for the defendant. Id. at 575. The defendant's attorney, however, was present and cross examined the two agents. Id. Despite the cross examination, the judge ordered forfeiture and the defendant's attorney then appealed. Id. The government filed a motion to dismiss the appeal based on Molinaro and the principles of disentitlement. Id. The Sixth Circuit held that the defendant had the burden to show that his property was not used or gained through the commission of a crime, but the defendant failed to meet his burden. Id. at 577-78.

(29.) See $83,320 in United States Currency, 682 F.2d at 576 (discussing rationale behind non-application of disentitlement to civil forfeiture). The Sixth Circuit in this case rejected the government's argument that the Molinaro rationale was applicable in this case. Id. It reasoned that while the defendant may be disentitled from defending asset claims, the innocent parties who may also have a claim to the property should not be punished simply because the defendant must be punished. Id. It explains that in "in rem" proceedings, the object itself is treated as if it is the guilty party, which also in turn could punish the rightful owner of the property, rather than the defendant who was found with it. Id. The Court believes that disentitlement does more than just punish the wrongdoer, but rather it seems to create a greater punishment for the innocent individuals who may lay claim to the property. Id. Therefore, the Court found that the defendant should not be disentitled from appealing the forfeiture proceeding judgment. Id.

(30.) See United States v. $40,877.59 in United States Currency, 32 F.3d 1151 (7th Cir. 1994) (explaining broadness of interpretation of applying disentitlement to forfeiture appeals); United States v. Pole No. 3172, 852 F.2d 636 (1st Cir. 1988) (denying idea defendant cannot appeal forfeiture judgments); $83,320 in United States Currency, 682 F.2d at 576 (reasoning why disentitlement should not apply to civil forfeiture appeals and hearings).

(31.) See United States v. Timbers Preserve, Routt County, 999 F.2d 452 (10th Cir. 1993) (upholding denial of fugitive defending forfeiture action against government); United States v. Eng, 951 F.2d 461 (2nd Cir. 1991) (holding defendant could not defend against civil forfeiture due to disentitlement); United States v. One Parcel of Real Estate at 7707 S.W. 74th Lane, 868 F.2d 1214 (11th Cir. 1989) (continuing application of disentitlement in civil law areas not just in criminal contexts); United States v. $129,374 in United States Currency, 769 F.2d 583 (9th Cir. 1985) (extending disentitlement to fugitive's successors in interest); United States v. $45,940 in United States Currency, 739 F.2d 792 (2d Cir. 1984) (becoming first case to extend disentitlement to civil forfeiture appeals). See also Collins, supra note 22, at 639-40 (stating rationale behind applying disentitlement to civil forfeiture). The Fugitive Disentitlement Doctrine can be applied logically to both civil and criminal contexts because all the government has to prove is that the assets in question are connected to the criminal actions by a preponderance of the evidence and if this is proved, then the defendant does not have a right to the property because he or she obtained it illegally. Id.

(32.) 517 U.S. at 828 (detailing Supreme Court's lack of decision regarding disentitlement application to forfeiture). The Supreme Court declined to answer the question of whether the disentitlement doctrine will ever be allowed to apply to forfeiture without violating due process. Id. It does intimate the view that disentitlement is a harsh sanction that should only be applied with care. Id. In this case, the defendant was indicted for marijuana distribution and money laundering, among other crimes. Id. at 821. The government also wanted to seize $5.5 million in assets that the defendant had allegedly attained through those criminal actions. Id. Among the assets were "properties in California, Nevada, and Hawaii." Id. One year before the indictments against him were returned, the defendant fled to Switzerland where he has citizenship and has remained there. Id. at 822. He did not return to accept criminal prosecution, but had been filing answers in regard to the civil forfeiture actions. Id. The District Court held that because the defendant would not face the criminal prosecution aspect of the case, he could not be heard on the civil forfeiture aspect of it. Id. The Supreme Court was not persuaded by this argument and ultimately reversed. Id. at 821.

(33.) See Degen, 517 U.S. at 828 (discussing questions left open by Supreme Court). The Supreme Court left open the question of "whether enforcement of a disentitlement rule under proper authority would violate due process." Id. The phrase "proper authority" was seen as the invitation to Congress to create that authority in the form of a statute or a bill allowing the Court to rule one way, or another regarding disentitlement and civil forfeiture. Id. Without this authority, the Court believed that it could not answer the question and that the answer would have to be found elsewhere. Id.

(34.) 28 U.S.C.A. [section] 2466 (reflecting Fugitive Disentitlement Statute as CAFRA); see Degen, 517 U.S. at 828 (suggesting Congress create statute); Griffith, supra note 19, at 224 (stating Supreme Court wanted Congress to enact statues). "While scholars contend that there are clear due process concerns with disentitlement in civil forfeiture, Degen invited a statutory reply from Congress." Id. The Court in Degen also seems to decide that while it does not want to decide constitutionality at the moment, Congress can still produce an act in order to create more succinct guidelines on this issue. Id.

(35.) See H.R. Rep. No. 106-192, at 2 (1999) (detailing historical origins of CAFRA from England). Civil Asset Forfeiture is an in rem action meaning that it deals with property rather than with individuals. Id. It "is based on the legal fiction that an inanimate object can itself be 'guilty' of wrongdoing, regardless of whether the object's owner is blameworthy in any way." Id. Not only does the statute find its roots in English common law, but the concept also appears in English admiralty law due to the commonly held notion that ships are given female pronouns and spoken of as individuals rather than as objects. Id. See also Collins, supra note 22, at 632-33 (defining in rem as actions against property itself). Civil forfeiture is defined as "an action by the government against property suspected of being used in or purchased with the profits from certain illegal transactions." Id. at 632. In civil asset forfeiture, the actions are in rem rather than in personam, meaning that the property itself is the defendant or "wrongdoer." Id. The property is considered to be illegal based on how it was obtained and the only way to make it "clean" again is to seize it and repurpose it. Id. The hearings occur in order for the claimants to try to prove that the assets were not actually involved in crime or obtained from criminal activities. Id. at 633. If the claimants win, then the court returns the assets to them, but if they lose, the government keeps them. Id.

(36.) See H.R. Rep. No. 106-192, supra note 35, at 4 (discussing legislative history and purposes of enacting CAFRA). Forfeiture is used both civilly and criminally. Id. at 3. It is used to seize anything from animals, to cigarettes, to assets involved in the Racketeer Influenced and Corrupt Organizations Act (RICO). Id. It has also been used as a tool to combat drugs and drug dealers by allowing the seizure of "moneyfs], negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance." Id. at 3-4. The report states that law enforcement's use of forfeiture is one of the best ways to combat criminal enterprises including "drug dealers, terrorists, and white collar criminals." Id. at 5. It reasons that criminals have no right to the property when it is being used illegally and by taking it away from them, it helps curb any motivation that individuals have to commit these kinds of crimes. Id.

(37.) Collazos v. United States, 368 F.3d 190 (2nd Cir. 2004) (holding CAFRA did not violate due process). The Second Circuit held that "disentitlement under CAFRA did not violate claimant's due process rights." Id. at 191. In this case, the defendant was indicted for money laundering using evidence that the defendant's Prudential Securities, Inc. account in New York containing $1.1 million was connected to her criminal activities. Id. at 192. The defendant allegedly owned a business in Texas, but operated it from her home in Colombia. Id. at 193. The business was engaged in wire transfers and after investigating, the Texas authorities believed that the large quantities of money being transferred through this business were consistent with money laundering. Id.

(38.) See Collazos, 368 F.3d at 190 (explaining constitutionality of CAFRA and defining fugitive). The Second Circuit reasoned that CAFRA did not violate due process because before CAFRA was even applied, the lower court complied with the due process requirements of notice and a hearing. Id. at 202. It also reasoned that CAFRA's disentitlement of the defendant from appealing the forfeiture judgment was not based on punishment, but was rather based on defendant's choice not enter the United States. Id. at 203. The Court stated that the disentitlement was just an obstacle that the defendant could easily overturn "simply by entering the United States" and subjecting herself to the criminal charges against her as well as the control of the court. Id. In this case, the defendant was provided a hearing, but she chose not to attend it meaning that the government's due process obligations were fulfilled and defendant made an individual choice that had nothing to do with due process issues. Id. In addition, the defendant in this case argued that the definition of "fugitive" should be the same definition that the Second Circuit had used in previous cases, which stated: "[a] person who, having committed a crime, flees from [the] jurisdiction of [the] court where [a] crime was committed or departs from his usual place of abode and conceals himself within the district." Id. at 196. The defendant also relies on Justice Holmes's definition of a "fugitive" from a 1911 case (Strassheim v. Daily, 221 U.S. 280 (1911)) where he states that while courts may be able to punish a person residing in a foreign country and working outside of the United States to cause harm to those within it, the person cannot logically be deemed a fugitive. Id. The Court rejects these arguments reasoning that neither of the relied upon cases involve the new CAFRA statute governing disentitlement and therefore, they are not controlling. Id. It explains that while the title of CAFRA's [section] 2466 may be "Fugitive Disentitlement," the text of the statute makes clear that its provisions extend far beyond that of just fugitives and so, in conclusion, the defendant could still be disentitled despite her lack of fugitive title. Id. at 196-97. See also United States v. Technodyne LLC, 753 F.3d 368 (2nd Cir. 2014) (describing alternative meanings); United States v. $6,976,934.65, Plus Interest Deposited into Royal Bank of Scotland International, Account No. 2029-56141070, Held in Name of Soulbury Ltd., 554 F.3d 123 (D.C. Cir. 2013) (holding sole reason for leaving country does not have to do with escaping criminal prosecution).

(39.) See Batato, 833 F.3d at 426 (discussing due process issue before Fourth Circuit in terms of CAFRA statute). The Fourth Circuit states that Congress created CAFRA to allow the courts to determine the constitutionality of disentitlement to civil forfeiture. Id. The defendants have used their appeal to argue that "'[t]he fundamental requirement of due process is the opportunity to be heard', that disentitlement violates this precept, and that Degen confirms their position." Id. at 426-27. The Fourth Circuit uses this argument as its opportunity to analyze CAFRA in terms of due process violations for the first time. Id.

(40.) Id. at 426-27 (restating issue and Fourth Circuit's analysis). The Fourth Circuit analyzed the Fifth Amendment's Due Process Clause, specifically the "right to be heard," in applying [section] 2466 of CAFRA to the facts of the case. Id. The defendants argued that their due process rights had been violated when the district court disentitled them without allowing them to defend themselves at the hearing because they were not present. Id.

(41.) Batato, 833 F.3d at 427 (emphasizing right as only providing opportunity for hearing). The defendants argue that they were deprived of their right to be heard, which in turn violated their due process rights. Id. at 426-27. The Court stated that this is the main reason that their argument was unsuccessful. Id. at 427. It explains, using Supreme Court precedent that the due process guarantees do not call for an actual hearing in every case, but rather only warrant a meaningful opportunity for the defendants to appear on the issue. Id. See also Stolley, supra note 18, at 772 (detailing different arguments on hearing rights). Those that believe in the "right to be heard" as giving defendants more than a mere opportunity state, "[t]he Due Process Clause requires, at a minimum, that deprivation of life, liberty or property by adjudication be preceded by adequate notice and a meaningful hearing on the merits of the cause." Id. The proponents of this viewpoint consider anything less than an actual hearing, with some significance, to be a violation of due process. Id. They also state that due process is supposed to act as a limitation on the courts' powers and by simply giving an opportunity to be heard, the courts are just participating in "an empty exercise in procedure" rather than actually protecting defendants' rights. Id. at 772-73.

(42.) Batato, 833 F.3d at 427 (explaining other side of right to hearing argument as correct interpretation). The Fourth Circuit seemingly agrees with the government's argument that courts normally impose limitations on defendants, in the form of procedural requirements, and if the defendants do not comply with these requirements, then they lose out on the benefits that the court system can provide. Id. The Court argues that the defendants could have attended their hearing on the forfeiture action, but they chose not to because they did not want to re-enter the country. Id. It contends that the government did its job by setting a date and giving the defendants proper notice and the defendants made a choice that adversely affected them. Id. The Court concludes that this is out of its hands and the defendants have to deal with the choices that they made. Id.

(43.) Id. at 428 (perceiving defendants choice not to attend hearing as waiver of rights). The Court contends that [section] 2466 of CAFRA gives the court discretion in applying fugitive disentitlement in each case. Id. It cites to the fact that the statute uses the word "may" rather than "shall," "must," or another word implying that the court does not have a choice in applying the statute. Id. It continues by stating that the defendants could have stopped its application by merely attending their hearing and providing a defense, but because they chose not to do so, and instead proceeded to continuously delay the hearings, they must now face the consequences. Id. at 428-29. The Court reasons that by delaying the hearings, the defendants knew what was at stake, meaning their assets, and therefore, they knew that if they did not have a hearing, then there could be no adverse decision against them. Id. This behavior, to the Court, iterates an awareness of what losing at the hearing could mean for them and their property rights. Id. at 428. See also Eng. 951 F.2d at 466 (discussing waiver of fugitive defendant's due process rights). The Second Circuit held that the defendant waives his due process rights during civil asset forfeiture proceedings simply because of his or her being labeled as a fugitive. Id. As a fugitive, the defendant cannot raise any objections to the hearing and must be a party to it. Id.

(44.) Batato, 833 F.3d at 427-28 (discussing assumptions regarding defendants' absence due to guilt). The Fourth Circuit makes assumptions regarding the defendants' guilt in this action. Id. It discusses how innocent people would come forward and defend themselves by claiming their innocence. Id. at 427. The Court states, "the refusal to face criminal charges that would determine whether or not the claimants came by the property at issue illegally supports a presumption that the property was, indeed, so obtained." Id. It also argues that the fact that the defendants refused to appear at the hearing "is 'but an admission of the want of merit in the asserted defense.'" Id. (citing Hammond Packing Co. v. Arkansas, 212 U.S. 322, 351 (1909)).

(45.) Batato, 833 F.3d at 427 (explaining defendants have nothing to fear due to constitutional protections). The Court stated that the nature of fugitive disentitlement is that defendants are punished for not facing the consequences of their actions. Id. It explained that in the criminal justice system, there are many safeguards for defendants during trial and at hearings including the presumption of innocence and the rights to attorneys, Miranda rights, and other procedural necessities. Id. It reasoned that with these safeguards, the defendants should want to come back to the United States to defend themselves because there is no fear of losing if they are innocent and they have acquired their assets in the correct and legal way. Id.

(46.) Batato, 833 F.3d at 428 (allowing disentitlement to become consequential rather than punitive). The Court distinguished one case where fugitive disentitlement was used as a punishment from another case where it was used a mere consequence of the defendant's actions. Id. In the first case, the Supreme Court reversed the decision of the lower court stating, "courts must pursue and render justice rather than acting arbitrarily and becoming 'instruments] of wrong and oppression.'" Id. In that case, the defendants were being punished for not placing money into the court registry, which as noted, the Supreme Court did not think called for disentitlement. Id. The second case that the Fourth Circuit cites is concluded in the opposite way. Id. The Supreme Court in that case stated that it is different from the first case in that the defendant created "an adverse presumption against itself." Id. The Supreme Court in that case held that disentitlement was allowed because it was not used capriciously, but was instead used as "the inevitable result of that presumption." Id.

(47.) Batato, 833 F.3d at 428-29 (detailing defendants actions as omissions of knowledge and guilt). The Court reasoned that there is no other reason for the defendants to have behaved in the way they did, meaning delaying the proceedings and rapidly spending their money, except that they knew that the consequences of their illegal actions would result in forfeiture. Id. Again, the Court explained that innocent individuals would have come forward. Id. at 428. It stated that the defendants knew about the consequences of [section] 2466 and therefore, they could not possibly say they did not know in order to waive the hearing. Id.

(48.) Batato, 833 F.3d at 428-29 (explaining how government had no other option in seizing assets). The defendants admitted that their assets were quickly disappearing even with the restraining orders attached to them. Id. This admission allowed the government to show necessity in filing for the asset forfeiture. Id. at 429. The government had already tried to secure the assets in other ways including applying for and receiving restraining orders in the United States and in Hong Kong and New Zealand. Id. The fact that the restraining orders in New Zealand could not be extended a second time meant that the government had no other choice but to file for the forfeiture disentitlement action. Id.

(49.) Id. at 429 (describing importance of government's need to seize assets). The government made a strong case for needing to seize the defendants' assets using [section] 2466. Id. It argued that without disentitling the defendants, it would lose its interest in the case because allowing the defendants to keep their assets would mean that they would continue to spend them until they were gone. Id. By asking for disentitlement, the government protected its interests in the prosecution and stopped the defendants from benefitting off of their illegally obtained assets, which in turn would entice them into returning to the United States or, at least, stop them from continuing the illegal activities. Id.

(50.) 833 F.3d 413 (4th Cir. 2016) (stating holding).

(51.) See Batato, 833 F.3d at 425-26 (reiterating Court's holding applying [section] 2466 does not violate due process). The Court concludes that applying [section] 2466, the Fugitive Disentitlement statute, to Civil Forfeiture Actions does not violate the defendants' Due Process Rights including the right to be heard. Id. See also Griffith, supra note 19, at 210-11 (stating different circuits have different conclusions on this issue). There are different conclusions among the circuits and despite the Fourth Circuit concluding seemingly correctly, the reasoning leaves something to be desired. Id. at 210. There are, however, no definitive answers from the Supreme Court on the correct application or line of reasoning. Id. at 210-11; Stolley, supra note 18, at 774 (discussing how Degen court did not forbid disentitlement application to civil forfeiture). The Supreme Court neglected to condemn the use of disentitlement in forfeiture actions, which still allows the lower courts to conclude that application is admissible. Id. The Supreme Court has also neglected to discuss the possible due process violations in relation to these types of actions leading to a lack of guidance for the lower courts. Id.

(52.) Batato, 833 F.3d at 427 (discussing Court's decision to interpret right to hearing as opportunity). "The guarantees of due process do not mean that 'the defendant in every civil case [must] actually have a hearing on the merits.'" Id. The Fourth Circuit stated that the U.S. Constitution requires merely an opportunity to be heard and the opportunity has been met as long as it is set at a meaningful time and manner in a way that is appropriate for each type of case. Id. See also Stolley, supra note 20, at 772 (stating opinion on right to hearing as opportunity and not actual hearing). The opponents of the "right to be heard" as meaning an opportunity believe that by only giving defendants an opportunity, courts are denying them their due process rights. Id. at 772-73. They claim that disentitlement automatically transfers the disentitled assets to the government without a hearing on the merits. Id. at 773. They state that a hearing is needed before the assets can legally be transferred in this way because the hearing is how the court should determine the relationship between the assets and the crime, which is needed to rightfully disentitle the defendants. Id. They explain further that without this kind of hearing making this determination, the government is just seizing assets without cause in violation of defendants' property rights guaranteed under due process. Id. at 773-74.

(53.) See Stolley, supra note 18, at 772-73 (detailing purpose of due process and why strict interpretation violates it). The Due Process Clause calls for the defendants to at the very least have notice and a hearing for their rights to be met. Id. at 772. Anything less than these small requirements is a violation of the defendants rights to life, liberty, and property. Id. The purpose of due process is not to perform empty procedural duties, but rather to protect individuals' rights from being taken away without proof or a substantial test of the facts. Id. Prior to the Degen ruling, the Supreme Court had prohibited the traditional practice of taking away property for a temporary time period, usually for the time between the commencement of the action and the actual hearing. Id. at 773. The Supreme Court held that this practice deprived the defendants of their due process rights because there had been no indication that the assets were involved in criminal activity, as is required for disentitlement in relation to forfeiture. Id. The government must be forced to present evidence and the defendants' allowed to present defenses, if they have any, in order for even a temporary seizure, which begs the question why should a permanent seizure be any different. Id. "If a probable cause warrant, issued ex parte, is not adequate to temporarily deprive an owner of the use of his property, then 'clearly it is an insufficient basis on which to justify a permanent loss of that property by forfeiture.'" Id.

(54.) See Degen, 517 U.S. at 827 (explaining disentitlement as premature with only one missed hearing). The Supreme Court discusses how the defendant needs to show an outright unwillingness to participate in the hearing before it will consider disentitlement as an option. Id. It states that there needs to be a "legitimate order" from the court requesting the defendant's presence, or some other action, and the defendant needs to ignore it by not appearing. Id. The order from the court could be regarding pleadings, discovery, or evidence. Id. Once this order has been made and the defendant has shown non-compliance, then the court may sanction him or her using disentitlement or other means of punishment. Id. See also Stolley, supra note 18, at 774 (analogizing forfeiture hearing with criminal trial to discuss meaning of due process). When defendants do not receive the actual right to be heard during a forfeiture proceeding, it is similar to the government receiving a conviction without having a full trial. Id. For a full criminal trial, the defendant need not be present, but at the least, his or her counsel is allowed to appear on his or her behalf and present evidence, cross-examine, bring witnesses, and simply defend the defendant through arguments to the factfinder. Id. In this case, the defendants themselves, not only did not appear, but no one was allowed to appear on their behalf. Id. This means that the defendants were deprived of their rights without any kind of representation or proof presented on either side of the argument. Id. This kind of action on the part of both the government and the court is a violation of the defendants' rights, but also of the criminal justice system. Id. By merely following procedures instead of protecting rights and core principles, these types of actions turn the system into one of persecution and tyranny. Id. Some argue that taking away the right to a hearing is the main reason why disentitlement should not be applied in a civil context in terms of civil asset forfeiture because with civil cases and disentitlement, the constitutional right to be heard is being taken away whereas in the criminal context, defendants simply lose the right to appeal, which is not a fundamental right that they are entitled to like the right to be heard is. Id. at 774-75.

(55.) See Degen. 517 U.S. at 828 (concluding disentitling defendant as severe punishment). "[S]anction of disentitlement is most severe and so could disserve the dignitary purposes for which it is invoked." Id. The Supreme Court elaborates that to disentitle a defendant is an extremely severe punishment that should not be handed down lightly. Id. The Court's inherent powers in applying such a punishment should only be used as a last case scenario where there is no other option. Id. at 829. The government needs to show that the court is prejudicing it from a fair outcome by not disentitling the defendant through forfeiture. Id. at 827-28. Without this kind of showing, the court is not inclined to issue such a declaration. Id. The Supreme Court explains it by stating, "[t]he existence of these alternative means of protecting the Government's interests, however, shows the lack of necessity for the harsh sanction of absolute disentitlement." Id. at 827.

(56.) See Degen, 517 U.S. at 828 (describing how defendant's behavior needs to show blatant disregard before disentitlement occurs). Despite the defendant ignoring the criminal proceedings against him, while at the same time answering the civil proceedings, the Supreme Court does not deem this enough to dismiss the defendant's claims to his civil property. Id. The Supreme Court describes this kind of behavior as impolite and undignified, but even so, it is not the kind of behavior that calls for the "blunt instrument" that is disentitlement. Id. There needs to be something more than just the government's desire to deter fugitives from fleeing and from remaining absent from their criminal proceedings before disentitlement is appropriate. Id. The Supreme Court states:
   The right of a citizen to defend his property against attack in a
   court is corollary to the plaintiff's right to sue there ... [f]or
   this reason we have held it unconstitutional to use disentitlement
   similar to this as punishment for rebellion against the United
   States or, in at least one instance, for contempt of court.


Id. See also Stolley, supra note 18, at 783 (stating belief disentitlement should never apply to forfeiture). Some opponents of disentitlement argue that it should never apply to forfeiture actions because to do so would completely obliterate the purpose of due process. Id. They contend that there is no way to apply disentitlement in the civil setting without stomping on defendants' constitutional rights. Id. The only way to safeguard those rights is to keep disentitlement securely in the criminal setting where the only consequence of its application is that defendants lose their right to appeal their convictions, but the right to appeal is not a fundamental right that must be protected unlike the right to a hearing before property is taken. Id.

(57.) See Batato, 833 F.3d at 427-28 (explaining presumption of innocence as not pertaining to these defendants). The Fourth Circuit reasons throughout its opinion that when defendants do not appear for either their criminal hearing or their civil hearing, they start to look guilty. Id. It elaborates on the idea that if the defendants were innocent, then they would say so rather than continue to flee from the courts and prosecutors. Id.

(58.) See Batato, 833 F.3d at 427 (stating criminal defendants have benefits from system). The Court reasons that with all of the protections of the criminal justice system, there is no reason why defendants would not want to appear and have their case heard. Id. The Fourth Circuit takes a very prosecutorial viewpoint in stating that defendants should having nothing to fear from the court system, as long as they are innocent, but the Fourth Circuit neglects to see other reasons on why the defendants would fear the court system. Id. See also Stolley, supra note 18, at 775, 782 (detailing meaning behind due process and presumption of innocence). Where a defendant has not been convicted of the criminal charges against him, due to his absence from the proceedings, the government creates a presumption of guilt by then filing civil forfeiture actions against him or her. Id. at 775. The civil forfeiture actions act as a minitrial where the court can find that the defendant's assets are tied to criminal activity, which in turn makes the defendant appear as though he or she has been involved in that criminal activity because of his or her claim over the illegally obtained assets. Id. at 782. The forfeiture action taints the ownership of those assets and makes anyone who claims them look criminal. Id. This is especially true when the government does not even have to prove its claims of criminal activity, but is instead handed the assets without a true and proper hearing on the merits. Id. Additionally, there are negative consequences to both aspects of a disentitlement forfeiture hearing because on the criminal side, by not appearing, the defendant loses his presumption of innocence and on the civil side, the government is rewarded with an automatic win. Id. at 775. The government is allowed to seize the property in the civil hearing without having to make any offers of proof or arguments as to how the assets are related to the criminal proceedings. Id. When the assets are seized automatically without any evidence being presented, the defendant appears guilty without having had any opportunity to defend himself and tell his side of the story. Id. Moreover, this conclusion not only denies the defendant his constitutional opportunity to be heard, but it is also fundamentally unfair. Id. at 783. The government is essentially given unlimited authority to strip the defendant of his property and any rights he had to it. Id. The only way that the criminal justice system can work effectively and efficiently is when both sides follow the rules laid out in the constitution and in case law. Id. When the rules are obeyed "[o]nly then can the courts guarantee all parties the fairness and completeness that the Constitution promises." Id. Either side still has a chance to come out victorious, but it is even better when that victory is won the fair and right way without cutting corners and cheating. Id.

(59.) See Degen, 517 U.S. at 824 (stating purpose of disentitlement as surrender). The Supreme Court lists one of the reasons for allowing fugitive disentitlement as enticing defendants to surrender after they have fled. Id. It states, "[d]isentitlement 'discourages the felony of escape and encourages voluntary surrenders,' and 'promotes the efficient, dignified operation' of the courts." Id. If defendants know that a consequence of flight is that their property rights, including the ownership of their illegally obtained assets, will be taken away, then they are more likely to return to the forum or not flee in the first place. Id.

(60.) See Batato, 833 F.3d at 428-29 (rationalizing that government had no other option but to seek forfeiture). The Fourth Circuit makes great points about why the government needed to seek forfeiture in reasoning that the government had already tried to stop the defendants using restraining orders on their assets. Id. The government seemed to go the extra mile in trying every option before seeking disentitlement and forfeiture, which is what the Supreme Court seemed to hint at in Degen. Id. The Fourth Circuit also differentiates this case from Degen in that the circumstances here are far more exigent because the assets here are being held in foreign countries whereas in Degen, the court had control of the assets. Id. at 429. See also Degen, 517 U.S. at 827 (discussing need for government to have tried every other option before disentitlement). The Supreme Court states that there are many alternatives for the government to preserve its interests in a case without resorting to disentitlement immediately. Id. It reasons that there are certain sanctions that "other uncooperative part[ies]" receive when they do not obey court orders. Id. These are the kinds of sanctions that "fugitive" defendants should receive before forfeiture and disentitlement is ordered. Id. One of the options, aside from disentitlement, that is used to sanction an uncooperative defendant is dismissal of the case. Id. Disentitlement should only occur when the government has tried everything else to make the defendant cooperate because the Constitution holds property rights in high esteem. Id.

(61.) See Batato, 833 F.3d at 428-29 (showcasing government need to disentitle defendants). The Fourth Circuit lists the exigent circumstances that the government was facing when it filed the civil forfeiture action to disentitle the defendants including the fact that the assets were in a foreign country, that it had filed for restraining orders and renewed those orders, but they still had expiration dates, and that the defendants were rapidly spending the assets at issue. Id. See also Degen, 517 U.S. at 828 (showcasing instances where disentitlement is not appropriate). The Supreme Court reasons that the government needs to show more than just a need to deter flight, entice surrender, and encourage efficient and timely court proceedings. Id. at 824. It explains that it has been wary of using disentitlement even where the defendant has proven to be a flight risk and has escaped criminal prosecution for a time. Id. In the past, the Supreme Court has denied disentitlement when a defendant has fled and then returned in time for an appeal. Id. When a defendant does return, the Court contends that there is nothing to punish him for because he has not wasted the court's time or threatened its efficiency by returning. Id. This example showcases how extreme the circumstances need to be for the Supreme Court to allow disentitlement as a sanction. Id.

(62.) See Stolley, supra note 18, at 783-85 (examining how lack of Supreme Court guidance leads to trouble). "By adopting a weak stance in Degen, the Supreme Court failed to remedy the confusion and inequity surrounding application of the fugitive disentitlement doctrine in civil forfeiture actions." Id. at 783. Its lack of clarity has led the circuit courts to continuously split on this issue and has left lower courts confused on how to rule when these cases appear on the docket. Id. at 783-84. Eventually, the Supreme Court will have to make a decision regarding this application process whether it is in favor of it or against it, so that lower courts and individuals, like defendants, will know both how the doctrine is applied and whether defendants have anything to fear in terms of their property rights when they flee from criminal prosecution. Id.

(63.) See generally Degen, 517 U.S. 820 (giving overview of disentitlement applied to forfeiture in past and present). The Supreme Court discusses how in the past it has been wary to apply disentitlement to forfeiture in the civil context because it believes the seizure of property is a severe punishment due to the Constitution's fierce protection of property rights. Id. at 828-29. It begins with this statement and then moves on to explaining what it would take for the Court to actually allow for disentitlement in a forfeiture case reasoning that it would need to be extreme circumstances. Id. at 828. Those extreme circumstances would need to include not only deterrence of flight and protection of government interests, but disentitlement must be absolutely necessary to preserve those interests and stop the government from being prejudiced against by the defendant's and the court's actions. Id. at 827-28. In the future, the Supreme Court calls for "the proper authority" to be given by something such as a statute that would allow courts to disentitle in these kinds of cases, but until that authority is given, courts must act with dignity so that their judgments are respected. Id. at 828.

(64.) See Degen, 517 U.S. at 828-29 (calling for Congress to create authority for disentitlement actions). The Supreme Court states, "[w]e need not, and do not, intimate a view on whether enforcement of a disentitlement rule under proper authority would violate due process." Id. at 828. It reasons that at the deciding of this case, the court does not have the proper authority to apply disentitlement in every forfeiture setting and until it does have that authority vested in it, it will not make a decision. Id. The government branch that could vest this power within the courts is Congress as evidenced by the Supreme Court's suggestion earlier in the case that the courts' inherent powers could be overpowered by statute. Id. at 823. Without a statute dictating this power, the Supreme Court believes that it is too harsh to hold that defendants can either use the courts "for all purposes or none." Id. at 829. It reasons that to call for this kind of treatment of defendants would slowly deteriorate the country's respect for the court system because it is unfair. Id. However, in laying out these principles, the Supreme Court has made clear its feelings on disentitlement and the factors it needs in order for it to order such a sanction, which makes it easy for lower courts and other individuals to figure out how the court's thought process is forming regarding this doctrine. Id. See also H.R. Rep. No. 106-192, supra note 35 (detailing reasons behind Congress creating [section] 2466).

(65.) See Stolley, supra note 18, at 783-85 (exploring how lower courts left alone to decide on disentitlement). "[T]he Degen opinion will have little impact on federal courts in their overzealous invocation of the fugitive disentitlement doctrine in civil forfeiture suits." Id. at 785. The only opinion that lower courts will have to guide them in deciding these cases is the Degen opinion and even that does not provide much guidance aside from what the Supreme Court may do when another case like this arises. Id. Its opinion may even be different from what it hinted at in Degen because of the creation of [section] 2466. Id. The new statute changes the tools that the Supreme Court had to work with prior to its creation and as it stated in Degen, the creation of a statute on a legal principle trumps the court's inherent powers to have discretion in making decisions. Id. See also Griffith, supra note 19, at 224 (stating Supreme Court neglected to answer questions on disentitlement restrictions). The Supreme Court continuously remains speechless when it comes to whether disentitlement should apply in the civil forfeiture context. Id. There continues to be a circuit split when it comes to this issue and it can only be resolved with clear guidance, which the Supreme Court has neglected to provide. Id. at 242.

(66.) See Batato, 833 F.3d at 426 (restating issue for Fourth Circuit to decide).
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Author:O'Neill, Colleen M.
Publication:Suffolk Transnational Law Review
Article Type:Case note
Date:Jun 22, 2017
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