Degen v. United States

PETITIONER:Degen
RESPONDENT:United States
LOCATION:Virginia Military Institute

DOCKET NO.: 95-173
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 517 US 820 (1996)
ARGUED: Apr 22, 1996
DECIDED: Jun 10, 1996

ADVOCATES:
Lawrence S. Robbins – Argued the cause for the petitioner
Miguel A. Estrada – Argued the cause for the respondent

Facts of the case

Brian Degen was indicted in 1989 for distributing marijuana, laundering money, and related crimes. On the same day the district court unsealed the indictment, it also unsealed a civil forfeiture complaint for properties allegedly worth $5.5 million and purchased with proceeds of Degen’s drug sales or used to facilitate the sales. Degen is a citizen of both the U.S. and Switzerland, and in 1988 he and his family moved to Switzerland. He has not returned to the U.S. to face criminal charges and by treaty the Swiss are not obliged to extradite their nationals to the U.S. While residing in Switzerland, Degen filed an answer in the civil case, claiming that the forfeiture was barred by the statute of limitations and was an unlawful retroactive application of forfeiture laws. The district court did not consider his arguments. Instead, it entered summary judgment against him, holding that he was not entitled to be heard in the civil action because he remained outside the country, unamenable to criminal prosecution. On appeal, the government argued that the district court’s inherent powers authorized it to strike Degen’s claims under the “fugitive disentitlement doctrine.”

Question

Should the fugitive disentitlement doctrine be extended to allow a court in a civil forfeiture suit to enter judgment against a claimant, without any opportunity to be heard, because the claimant is a fugitive from, or otherwise is resisting, a related criminal prosecution?

William H. Rehnquist:

We’ll hear argument now in Number v. United States.

Is that the correct pronunciation of your client’s name, Mr. Robbins?

Lawrence S. Robbins:

Mr. Chief Justice, it’s actually Mr. Degen.

William H. Rehnquist:

Degen.

Very well.

Proceed.

Lawrence S. Robbins:

Thank you, Mr. Chief Justice, and may it please the Court:

On October 24, 1989, Federal prosecutors in Reno, Nevada commenced a civil forfeiture action against some five and a half million dollars in real and personal property owned by petitioner Brian Degen and his wife, Karen.

As the forfeiture statutes permit, Mr. Degen filed a claim for the property.

In it, he denied that the property was either the proceeds or instrumentalities of narcotics violations.

He also asserted a range of legal defenses, including that the forfeiture action was time-barred and that it rested on an ex post facto application of the forfeiture laws.

On the Government’s motion, however, the district court struck Mr. Degen’s claim for the property.

The court ruled that because Mr. Degen, a dual Swiss and American citizen, had not traveled to the United States to stand trial in a criminal case that had been brought against him, he was a fugitive, and as a fugitive from the criminal case, he was therefore disentitled, in the vernacular, from contesting the civil forfeiture of his property.

The district court therefore entered a judgment against Mr. Degen for the full amount of the Government’s claim, some five and a half million dollars of property, and the Court of Appeals for the Ninth Circuit affirmed.

Our central submission this morning is that Federal courts and Federal judges do not have the authority to do this.

To the contrary, this extraordinary application of the fugitive disentitlement doctrine cannot be squared with this Court’s disentitlement cases, it cannot be squared with due process, and it cannot be squared, most importantly, with the limitations that this Court has always recognized on the scope of the inherent powers of the Federal courts.

Antonin Scalia:

When you say it cannot be squared with due process, Mr. Robbins, do you mean that if Congress had enacted such a provision it would be unconstitutional?

Lawrence S. Robbins:

I believe it would.

I believe that Congress would not have authority to pass a statute that has done what the Federal courts in this case have done, although, Justice Scalia, if I might add, it is all the more unlawful when done by Federal courts.

William H. Rehnquist:

What leads you to think that Congress wouldn’t have that authority?

Lawrence S. Robbins:

Well, I think the reason is that–

William H. Rehnquist:

I mean, are you talking about a case?

Lawrence S. Robbins:

–I’m sorry, Your–

William H. Rehnquist:

Are you talking about a decision of this Court that supports that proposition?

Lawrence S. Robbins:

–Well, I… it’s… I think that the line of authority that supports the proposition is embodied, for example, in McVeigh and in Hovey v. Elliott, where the Court, in deciding that a Court lacked the power, said that not even a legislature could pass such a statute, and therefore it’s all the more unconstitutional for Federal courts, or in those cases State courts, to exercise that kind of authority.

William H. Rehnquist:

Where did your client reside before he went to Switzerland?

Lawrence S. Robbins:

He lived in the United States.

William H. Rehnquist:

And when did he go to Switzerland?

Lawrence S. Robbins:

The record suggests, Mr. Chief Justice, that he went to Switzerland sometime in early 1988.

William H. Rehnquist:

And when was the indictment handed down?

Lawrence S. Robbins:

It was unsealed in October 1989.

William H. Rehnquist:

If… supposing the district judge in this case had made a finding that he left the United States in order to avoid pleading to the indictment, would that make the outcome any different, in your view?

Lawrence S. Robbins:

It would not.

Our position would be that even if he were a fugitive in that sense, which he’s not, but even had he been, our position would be exactly the same.

That is to say that a Federal court in the civil forfeiture case would not have the authority to exercise the dispositive sanction of dismissal.

Antonin Scalia:

And that Congress wouldn’t?

Lawrence S. Robbins:

I think it would be… I think it would be very difficult to say that Congress could pass a statute that says that the… that you have no right to defend the forfeiture of property if you have become a fugitive in a criminal case.

But again–

Anthony M. Kennedy:

And that’s so even if you make a general appearance in the action?

Lawrence S. Robbins:

–A general appearance in the forfeiture action?

Anthony M. Kennedy:

Yes.

Lawrence S. Robbins:

And the question would again be the power of Congress–

Anthony M. Kennedy:

Again, the powers of Congress under the Due Process Clause.

Assume that there’s a general appearance in the action but a refusal to make discovery or a refusal to appear because you’re a fugitive from justice.

Couldn’t the Congress of the United States say, in that case we can take judgment against you?

Lawrence S. Robbins:

–Well, again… my general answer is that when Congress does something, obviously they are not constrained by the limitations on inherent powers.

The question that would be presented, Justice Kennedy, in that situation is whether the application of that sanction through the legislative process satisfies the conditions articulated in Hammond Packing on whether there’s a sufficient nexus between the violation and the sanction that’s been imposed, and it might be–

Ruth Bader Ginsburg:

Mr. Robbins, I thought you were not contesting that as far as the forfeiture is concerned Mr. Degen would have to be treated like any other litigant, so if he didn’t show up, say, for a deposition, didn’t comply with all the discovery requirements, out he goes.

I thought that you were saying as far as the forfeiture proceeding is concerned, he can’t have any advantage because of his fugitive status, and if I’m wrong in that, please tell me.

Lawrence S. Robbins:

–Well, we are certainly not suggesting, Justice Ginsburg, that he has some special advantage by being… by virtue of his nonappearance, and so, for example, if there were an appropriate sanction for nonappearance in the forfeiture action, I suppose that if that sanction otherwise comported with the two standards that this Court articulated in Insurance Corporation of Ireland, I suppose he could be appropriately sanctioned, and–

Ruth Bader Ginsburg:

I thought your case was, he has a right, the right that any litigant would have, to defend the forfeiture proceeding.

Lawrence S. Robbins:

–Exactly.

Ruth Bader Ginsburg:

He’s not stripped of that right because there’s a criminal prosecution against him.

Lawrence S. Robbins:

Exactly.

Ruth Bader Ginsburg:

But as to the forfeiture proceeding, he would have to comply with all the requirements the court would impose on anyone who’s contesting a forfeiture.

Lawrence S. Robbins:

That’s absolutely correct, and the only point of departure that I thought I tried to suggest to Your Honor’s question is… insofar as the predicate is that if he didn’t show up for a deposition he would be automatically subject to have his claim dismissed, I’m not altogether sure that courts can dismiss claims whenever there’s any particular violation of a discovery order.

The question–

Antonin Scalia:

It’s a civil matter, though.

You wouldn’t argue–

Lawrence S. Robbins:

–Exactly.

Lawrence S. Robbins:

You know, the question would be, you know, whether this comports with the due process restrictions on Rule 37 as this Court has articulated them in–

David H. Souter:

–What… assuming, even apart from any rule, that the failure to show up made it impossible for the Government to perfect its forfeiture case, perhaps because the material forfeited was in the possession of the defendant, in a case like that, rule or no rule, I take it you would agree that there would be no due process violation in disentitling the person to defend any further.

Lawrence S. Robbins:

–I think… I think that’s correct, if I understand the question.

If, for example, his nonappearance rendered it impossible for the district court in the forfeiture action to proceed, for example by rendering it impossible to have… you know, to enforce the judgment, or to take control of the race, if you will, then, you know, there’s nothing that should separate Mr. Degen from any other litigant.

That–

William H. Rehnquist:

If the district court were to order him to appear in Nevada for a deposition, could he then be served with criminal process in the criminal case?

Lawrence S. Robbins:

–Oh, I think if he were to appear in response to such an order, I have no doubt that he would be immediately served with process in the criminal case.

William H. Rehnquist:

And would that be constitutionally objectionable, in your view?

Lawrence S. Robbins:

Well, the… it would raise a question in my mind, Mr. Chief Justice, if it was done for the purpose of securing his appearance, as a way of sort of going around the extradition case.

William H. Rehnquist:

Well, suppose it wasn’t.

Suppose the district judge says, we do have these foreign claimants, and I always require them to come to Reno, or Las Vegas, and give their depositions.

Lawrence S. Robbins:

Well, Your Honor, that… I think the answer is this.

If we were faced with that case, which, of course, we’re not… he was not sanctioned for that reason.

He was sanctioned for the quite different reason that he didn’t come and make an appearance in his criminal case.

But had he been sanctioned for that, Mr. Chief Justice, I think it would raise two questions, one about the formulation of the rule, and one about the formulation of the sanction.

The formulation of the rule would be, can a district judge say that in all civil forfeiture actions every claimant must show up in person?

I think that would raise a question, which I’m not prepared to sort of give a complete answer to, but I think it would raise a question as to whether a district court would be in effect announcing that the rules provided by Congress, including for foreign depositions and telephonic depositions, shall be just set aside, and that no discretion shall be exercised.

Antonin Scalia:

We’ve said that that’s okay in civil matters, where the reason the person doesn’t want to appear generally is that he will be served in other civil cases.

We’ve said it’s perfectly okay for a State to say, you make a general appearance or you do not appear at all.

Lawrence S. Robbins:

I think that that–

Antonin Scalia:

I would think that it’s a lot easier to say it for the criminal case.

The interest of the State is much greater.

Lawrence S. Robbins:

–I… well, again, I think the interest of the State is greater, but the question that I was intending to answer is whether a court could say that notwithstanding Rules 28(b) on foreign depositions and Rule 30(b)(7) on telephonic depositions, I’m just not… the judge would be saying in all civil forfeiture actions I’m not going to consider those–

William H. Rehnquist:

Well, supposing the district court said, I don’t require all civil forfeiture defendants to come to Las Vegas, but I’m going to require you to come to Las Vegas, because I’m exercising my discretion and that’s the way I choose to exercise it.

Lawrence S. Robbins:

–I think it is possible that if circumstances warranted that and the judge, you know, gave reasons that satisfy a reviewing court that this was an appropriate exercise of discretion that might be done, but then the further question, if I might, as to whether the violation of that order gives… justifies the sanction, the dispositive sanction of dismissal–

William H. Rehnquist:

You sound as though your client might be planning to violate such an order.

Lawrence S. Robbins:

–No.

[Laughter]

And the question, of course, has not been presented, since he’s obeyed every order in the civil case that’s been pressed on him, and this district judge, unlike the hypothetical district judge that the question presupposes, has ordered foreign depositions in the case of Karen Degen, my client’s wife.

Stephen G. Breyer:

In your… I take it for pure purposes we could consider this as a case in which the defendant is happy to send his lawyers, he’s happy to comply with every order.

Stephen G. Breyer:

What he’d like to do is send in one piece of paper, which piece of paper would be absolutely conclusive in his favor, and the judge says, I’m sorry, I won’t look at the paper.

Since you’re not here, you lose, period.

Lawrence S. Robbins:

Since–

Stephen G. Breyer:

Is that right?

Lawrence S. Robbins:

–Since you’re… and actually, it’s more than that, Justice Breyer.

Since you’re not here in this other case–

Stephen G. Breyer:

Yes.

Since you’re not here in the other case, you lose.

Now, we’re used to doing that in an appeal where, after sentencing, for example, the defendant runs away, and you concede we can do that there.

Lawrence S. Robbins:

–No question.

Stephen G. Breyer:

You can say, we won’t look at your paper, we won’t look at the brief, you lose.

Lawrence S. Robbins:

Yes, but that–

Stephen G. Breyer:

All right.

Now, what line do you draw?

Lawrence S. Robbins:

–Well, I draw exactly the line that this Court has drawn in that exact… in those very cases.

The line… and it cuts across several factors that distinguish the facts of this case from that line of cases.

In the first place, Justice Breyer, those are cases in which there is no underlying constitutional right that’s been abrogated.

There’s no–

Stephen G. Breyer:

When I say, what line are you drawing, after all, there are a lot of intermediate cases.

He runs away before sentencing.

Can the judge then sentence him?

Lawrence S. Robbins:

–I believe that the answer to that is yes.

That’s exactly what–

Stephen G. Breyer:

If, in fact, the judge wants to levy a fine, and he wants to produce one piece of paper which will show he has no money, does the judge have to look at that piece of paper?

Lawrence S. Robbins:

–Well, again, these are cases in which the sanction is being imposed in the very proceeding in which the–

Stephen G. Breyer:

No, I’m asking you for your… I mean, you’re absolutely right that’s where I’m driving.

What I want to see is what’s your line.

You agree, I take it, the judge doesn’t have to look at the piece of paper when he ran away before appeal.

The judge doesn’t have to look at the piece of paper when he runs away before he’s being fined at sentencing.

But you’re saying the judge does have to look at the piece of paper when it’s a forfeiture of property, and what’s the distinction?

Lawrence S. Robbins:

–Well, one distinction is that it doesn’t turn so much on the forfeiture of property as it does on the fact that there are two different proceedings, and in the forfeiture proceeding there is no showing that the fugitivity has any impact, has had any impact on the process of the forfeiture court, which is, of course, exactly the distinction that persuaded this court in Ortega-Rodriguez to draw the line where it did.

We’re insisting on exactly the same line and, indeed, the use of the disentitlement doctrine in this setting in my view is vastly more dramatic.

John Paul Stevens:

Mr. Robbins, may I ask you a question?

You may recall that there are some lawyers who argue that the Double Jeopardy Clause require the two proceedings to be brought as one.

Lawrence S. Robbins:

I’ve heard such an argument may be made.

John Paul Stevens:

You’ve heard such an argument.

[Laughter]

Well, if the Constitution commands these proceedings be treated as one, how can you consistently argue in this case that we must treat them as totally separate–

Lawrence S. Robbins:

Well–

John Paul Stevens:

–which is the heart of your argument, that we should ignore the criminal case and just look at what can be done in the civil case?

Lawrence S. Robbins:

–Well, I contend that they are separate proceedings, of course.

John Paul Stevens:

And it’s constitutionally permissible for us to treat them as separate proceedings.

Lawrence S. Robbins:

Well, I think it is constitutionally permissible to treat them as separate proceedings and, indeed, they are separate proceedings, but even–

Antonin Scalia:

Even if not, you would say that if they are brought as separate proceedings they have to be treated as separate proceedings.

Lawrence S. Robbins:

–Exactly, and the–

Antonin Scalia:

That’s not a very irrational position, is it?

Lawrence S. Robbins:

–And the inquiry would… and the inquiry would still be, has the fugitivity in case one affected the proceedings in case two, and my general answer is that if the answer is no, it doesn’t meet Ortega-Rodriguez, it is nothing like any disentitlement case this Court has ever approved, it serves none of the purposes… none of the purposes… that this Court identified in Ortega-Rodriguez.

What the Government wants in order to sustain this forfeiture is for the Court to completely reformulate the doctrine of fugitive disentitlement so that it no longer matters whether the claimant has a dispositive motion that doesn’t even require his presence, or even his testimony, so that it doesn’t even matter if the Government has probable cause, so that it doesn’t even matter whether there’s venue in this court, so that the only thing that matters is that he hasn’t shown up to face parallel criminal charges.

Ruth Bader Ginsburg:

Mr. Robbins, in answer to Justice Scalia’s question about the special or general appearance, you indicated that that was right that a State could say, either you stay out and forfeit whatever we have, or you come in for all purposes, but my understanding is that on the Federal side if the property is in the custody of the court, you could make a limited appearance and say, I’m coming in for purposes of defending my property, but nothing else that I own is going to be subject to the court’s authority.

I thought that’s… on the Federal side, that has been the Federal practice, whatever the Texas rule may be.

Lawrence S. Robbins:

Well, I’m actually not certain whether Mr. Degen could have entered a limited appearance.

In this particular case, he hired a lawyer to contest the forfeiture–

Ruth Bader Ginsburg:

Well, that’s what a limited appearance is.

I’m there, I’m fighting out the case, but the only thing that’s going to be subject to the judgment is the property.

Lawrence S. Robbins:

–Correct, which is, of course, the only thing that can be subject to the forfeiture judgment.

The forfeiture court has not seized jurisdiction over Mr. Degen for purposes of imposing, you know, a dispositive sanction on him other than in the course of the litigation were he to violate a court order.

Antonin Scalia:

And I guess the actual parallel in the State civil case anyway would not be whether you subject yourself to general counterclaims or whatnot that are relevant to that suit, but rather, I guess the parallel would be a State that says if you make even a special appearance in one case you are liable to being sued in separate cases.

I don’t know any state that does that.

Lawrence S. Robbins:

Well, exactly, and actually this is actually to me a more dramatic example of that for the following reason.

Mr. Degen has been sanctioned, indeed dispositively sanctioned, not because of something he did in the criminal case, but for his failure to come to the United States, an act over which the court in the criminal case lacks jurisdiction.

Lawrence S. Robbins:

In a sense, this is the use of an inherent power to sanction someone in case one because of something that he failed to do outside the courtroom in case two, and I’d like to suggest, with all due respect, that there is no authority certainly in any of this Court’s cases for this kind of a use of an inherent power of a court.

Anthony M. Kennedy:

Could the judge decline to give the usual weight and credit to the sworn affidavit because of the defendant’s absence?

He’d say, I have this paper in front of me, but number 1, this man’s a fugitive.

I’m going to discount this.

Lawrence S. Robbins:

I think the answer, Justice Kennedy, is that there… is that it’s possible the court could do that, saying, look, I didn’t get to test his demeanor–

Anthony M. Kennedy:

It’s not only possible, is it permissible?

Lawrence S. Robbins:

–I think it is permissible, and after all, it’s important to bear in mind Mr. Degen bears the burden of proof.

His not showing up has consequences for him, too.

Just as this Court pointed out in Societe Internationale, there are consequences for the litigant that doesn’t appear, but one of them is not that you dispositively sanction him, take his property, give him no day in court, for the reason that in a separate case over which the judge has no jurisdiction in the first place, he hasn’t shown up.

Antonin Scalia:

Maybe it isn’t that separate a case.

I mean, certainly that’s what the Government is going to argue in these cases.

It would be quite different if it were a totally unrelated piece of civil litigation that you’re talking about, but this is, in fact, simply a piece of civil litigation that has a lot to do with the criminal case.

Why can’t we consider them effectively joined?

Lawrence S. Robbins:

I don’t think so, any more than the court was inclined to consider the two stages of Ortega-Rodriguez the same case.

There, after all, you had a prosecution followed by an appeal, and yet the Court concluded that because there was no impact on the appellate proceedings of the same exact case, you couldn’t apply the disentitlement doctrine in that way.

Antonin Scalia:

Well, but that had to do with the fact that the appellate proceedings did not relate to the same court, that they didn’t have to do with an offense to the dignity of the same court, and therefore couldn’t be within the inherent powers of that court.

Lawrence S. Robbins:

Well–

Antonin Scalia:

But here it is the same court.

Lawrence S. Robbins:

–Well, it is the same court, but it’s the same court with respect to a different case, and the inquiry, I thought, in Ortega-Rodriguez is whether the appellate process… that was certainly one of the factors.

Has the appellate process been disturbed, or… and–

Antonin Scalia:

Because it was only the appellate process that was the business of that court.

Lawrence S. Robbins:

–I understand, but I think–

Antonin Scalia:

It had to do with the identity of courts rather than the absolute identity of lawsuits.

Lawrence S. Robbins:

–I understand, but I think it remains the case that Federal courts… even if it happens to be the same judge, I do not understand any of this Court’s cases to permit the sanctioning of a litigant who happens to be before the same judge in another case, even if it’s related cases.

They have some facts in common.

Nevertheless, I understand no authority, and I’m aware of no authority, the Government cites no authority for the proposition that the judge, no matter how similar the underlying cause of action may be, that a sanction can be imposed in case one because of case two, particularly, let me add, for conduct that is not unlawful in any way.

It bears mention that although Mr. Degen’s failure to come to the United States is doubtless frustrating to the United States Attorney in Reno, Nevada, to the Department of Justice, and to Judge Reed sitting in Reno, Nevada, neither of the political branches, neither Congress nor the executive branch, have chosen to proscribe it in any way.

It doesn’t… it isn’t extraditable.

It isn’t punishable.

It’s not against the law.

Lawrence S. Robbins:

It violates no positive law, and yet there is a district judge in Reno, Nevada who, following circuit court precedent, and I must say, precedent in various other circuits as well, has dispositively sanctioned someone, taken all his property without giving him his day in court.

Anthony M. Kennedy:

Well, could–

Lawrence S. Robbins:

That strikes me as quite extraordinary.

Anthony M. Kennedy:

–Do those who are assisting him in remaining abroad, couldn’t they be liable for harboring a fugitive?

Lawrence S. Robbins:

I… oh, I–

Anthony M. Kennedy:

Forget the extraterritoriality aspect of it so far as the forum.

Suppose he was in New York State, and he was being hidden out–

Lawrence S. Robbins:

–Well, I think if there were questions of concealment and harboring, if that were true, there might be criminal sanctions attached to the persons doing it, but Justice Kennedy, it must be said Mr. Degen is so far from being harbored that it was not difficult for the United States Government to prevail upon the Swiss to arrest him and toss him in jail, where he lingered for nearly 2 years.

Stephen G. Breyer:

–But is that the case now?

What is the status?

Lawrence S. Robbins:

He is on–

Stephen G. Breyer:

That is, on that part of it, is it… is there a dispute with the Government over what happened?

Is it the case that he could not come to this proceeding because, at the request of the United States, the Swiss had arrested him, tried him, and put him in prison?

Lawrence S. Robbins:

–I am–

Stephen G. Breyer:

Are we dealing with the case of a person who could not show up because he was in prison because the Swiss authorities acted on American request, or not, or what is the status of that?

Lawrence S. Robbins:

–The status is that he is out on bail.

I have no reason to challenge the proposition that he could come here without penalty from the Swiss, but I don’t know that to be the case, but I’m not asserting the opposite, either, and my argument wouldn’t–

Ruth Bader Ginsburg:

He hasn’t been tried yet in Switzerland?

Lawrence S. Robbins:

–No, he’s not.

He’s still awaiting trial on charges that, on their face, embody the allegations of the American indictment as well.

Sandra Day O’Connor:

Mr. Robbins, did the petitioner raise in district court the claim that the Swiss arrest ended his fugitive status?

Lawrence S. Robbins:

Well, the Swiss arrest came in, I believe, November of 1992.

He had already been disentitled at that point.

Sandra Day O’Connor:

So it was not raised in the district court because it hadn’t occurred.

Lawrence S. Robbins:

That’s correct.

It had not yet occurred.

With the Court’s permission, if there are no questions I’d like to reserve the balance of my time for rebuttal.

William H. Rehnquist:

Very well, Mr. Robbins.

Mr. Estrada, we’ll hear from you.

Miguel A. Estrada:

Thank you, Mr. Chief Justice, and may it please the Court:

Miguel A. Estrada:

It is undisputed that this civil forfeiture action is directly related to a criminal case that is pending in the same district courthouse against Degen, and that Degen refused to appear to stand trial on the criminal charges.

For two reasons, the court of appeals correctly held that a claimant in Degen’s situation may be disentitled from contesting the civil forfeiture action.

First and foremost a civil claimant’s participation in the civil forfeiture action fundamentally threatens the integrity of the criminal case.

Second, the claimant’s–

William H. Rehnquist:

You say the defendant’s participation in the civil forfeiture threatens the criminal case?

Miguel A. Estrada:

–Yes, Mr. Chief Justice, and that is, in fact, our principal argument here.

Our argument starts from the premise that courts always have had the inherent authority to protect against the abuse of their processes by a litigant, and that is precisely what the rule at issue here does.

If a civil claimant is allowed to participate in a civil forfeiture action while at the same time he refuses to stand trial on a criminal case that is based on the identical event, he may then use the very broad civil discovery rules that… to circumvent the very well settled and strict restrictions on criminal discovery.

William H. Rehnquist:

But couldn’t that be dealt with by a judge administering the civil discovery rules?

Miguel A. Estrada:

That is not true, Mr. Chief Justice, with respect, and in order to understand why, it is useful to note why it is that we have limited criminal discovery in our society.

Those rules limiting strictly criminal discovery exist because long experience has taught Congress and the courts that early disclosure of the Government’s case in a criminal prosecution often leads to contrived defense testimony–

John Paul Stevens:

But Mr. Estrada, wouldn’t that be possible even if he appeared in the criminal case, that he could use civil discovery in the forfeiture case to find out the same information?

Miguel A. Estrada:

–That is not so, Mr. Justice Stevens, for the following reason.

Congress has recognized precisely the danger that we’re pointing to in this case, and in section 20… and section 881(i) of title 21 has given the Government the right to go to the district court and get a stay of the civil forfeiture action pending the conclusion of the criminal case.

John Paul Stevens:

Well, why couldn’t they have done that in this case?

Miguel A. Estrada:

Well, I take it that if we had done that in this case, Mr. Justice Stevens, the net… the result would have been that we couldn’t get any judgment in the civil forfeiture action because the criminal case can’t start while Mr. Degen is in Switzerland.

David H. Souter:

So it boils down to a question of money.

It’s not the dignity of the court, you want the money.

Miguel A. Estrada:

Well, no.

We want our statutory rights under the forfeiture statute–

David H. Souter:

Which is to get the money.

Miguel A. Estrada:

–Which is to get the money without having to compromise the integrity of the criminal process, and since we are not at fault for the fact that he’s in Switzerland, we think that it is a reasonable exercise of the court’s authority to have a very simple procedural rule in the civil case that says that if you want to file a claim in the civil case you should come and face the related criminal charges.

Sandra Day O’Connor:

That’s–

–But how long can a… how long can the criminal indictment stand without dismissal if he fails to appear in response?

Miguel A. Estrada:

For as long as he lives, Mr…. Justice O’Connor.

Sandra Day O’Connor:

All right, and presumably the Government could stay the civil forfeiture and put a hold, in effect, on any transfer of title the property.

The property will be secure.

So what has the Government lost?

Miguel A. Estrada:

Well, the Government has lost its right to the property.

Under the forfeiture laws we have made a prima facie showing which on its face entitles us to the property outright.

Antonin Scalia:

Well, it seems to me that the… it isn’t as though the Congress hasn’t addressed this problem.

It has, and it has given you a remedy.

The remedy is to stay the civil action until the criminal action is completed, and you say that remedy is inadequate.

Well, maybe go back to Congress and get an additional remedy for this kind of a case.

Miguel A. Estrada:

There are two points in answer to that question, Justice Scalia.

Congress has not addressed the problem that we are faced with here.

It has not dealt with how to deal with someone who is a fugitive in a foreign country, so that there’s no negative implication that that is an exclusive remedy.

The second point, which I think is more important, is that the fact that Congress has dealt with an aspect of the issues that come up with cases when cases are related does not mean that the court ceases to have a very strong interest in keeping parties from abusing its processes, and that’s what is at issue here.

William H. Rehnquist:

Well, there’s no finding here, Mr. Estrada, that the petitioner is a fugitive.

Miguel A. Estrada:

Well, yes, there is, Mr. Chief Justice.

We have… at page 18a of the petitioner’s appendix there is a finding by the district judge that he is a fugitive, and at page 5a–

William H. Rehnquist:

Whereabouts on page… you’re talking about the white–

Miguel A. Estrada:

–Yes.

It’s page 18a, and it is the last full paragraph.

It says, the Ninth Circuit has given us the following definition of who is a fugitive, and the court goes on to say, in this case Brian knows he is wanted by the police but refuses to submit to arrest, even though he professes his innocence.

Thus, we conclude that Brian Degen is a fugitive.

William H. Rehnquist:

–In that sense of the word, I take it.

Miguel A. Estrada:

Right, in that sense of the word, and that is the sense of the word that is relevant to the application of the sanction at issue here.

I think it bears emphasis from our point of view that we are not here supporting the notion that the sanction being imposed is an exercise of the power of the court in the criminal case.

We are not saying, for example, that he has a legal duty that is enforceable in the criminal case if the case were standing alone.

What we are saying is that it is a proper use of the court’s authority to manage the civil case to guard against the possibility that he will use the processes in the civil case to undermine public policies that have been reflected–

Ruth Bader Ginsburg:

If he does–

Miguel A. Estrada:

–in the discovery rule.

Ruth Bader Ginsburg:

–If he does, why not handle it at that stage instead of saying you… you’re at total default.

We are predicting what’s going to happen if we were to allow you to come in and defend, and Mr. Estrada, one striking difference between this and Molinaro, where the fugitive entitlement doctrine started, there the defendant is away and he says, aha, if I’m vindicated on appeal, I’ll come home, but if they’re going to affirm my conviction… so there was no way to enforce the court’s judgment.

Here, all the property is arrested.

It’s in the court’s control, so he can’t get his hands on any of that property.

Miguel A. Estrada:

Well, there are two different points being raised by your question, as I understand it, Justice Ginsburg.

One is why can’t we wait, and the other one is, we have control over the property, so there is no question as to the enforceability of the judgment.

Let me take the first one first, which is that… and in answering that one, it is important to recognizes that we are claiming two distinct interests in the civil forfeiture action for supporting this rule.

Miguel A. Estrada:

One, of course, is the fact that he has shown to the court that he intends to play games with the court and maybe their answer is let’s wait and see if he does it some more, but even… even accepting that that would be an acceptable answer, it is not an acceptable answer to the more fundamental problem that we are identifying, which is that by getting discovery and allowing… and being allowed to litigate the civil forfeiture action, he is circumventing the criminal discovery rules.

Those rules reflect a very strong public policy that cannot be dealt with on a case-by-case basis.

Ruth Bader Ginsburg:

But Mr. Estrada, suppose the defendant says, I don’t want to face a total forfeiture, and I realize this argument you’re making.

I would rather have some defense than none, so if the district court wants to issue any kind of protective orders so that I won’t get premature… a pre-vision of the criminal case, so be it, but at least give me some chance to defend.

The Government, in order to effect its interest in not having more disclosure than in the criminal case doesn’t have to say, you can’t come in at all.

It can say–

Miguel A. Estrada:

I don’t–

Ruth Bader Ginsburg:

–Yes.

Miguel A. Estrada:

–I mean, let me make two points in response to that question.

The first one is that I think that it is not right because it is possible that he could say that all he intends to do in the action is to call the following six witnesses who will testify that in fact all property came from an inheritance or from some other source of income, and we may well know that that is not true because all of our evidence in the criminal case shows where the property comes from.

So all that is doing is pushing the problem one step further, because he will then put us to the choice either of compromising the criminal case or–

Ruth Bader Ginsburg:

Are you saying there are no circumstances in which he could defend that would not involve disclosing the Government’s case?

Miguel A. Estrada:

–No, I am not saying that.

What I am saying is there are enough circumstances in the class of cases to warrant the adoption of a general rule while recognizing that the rule can have exceptions for specific cases being, in its nature, discretionary.

David H. Souter:

Well, why in the example that you just gave does that example support you?

Why, in the case in which the Government knows because of its criminal evidence the property came from some other source than inheritance, couldn’t the Government simply go to the court and say, we have evidence to rebut?

We will make a good faith offer of proof without disclosing the evidence itself, and therefore you in fact ought to stay the proceeding so that we don’t have to disclose our case.

I suppose your answer is, well, we want the money, but–

Miguel A. Estrada:

And we have a legal right to it.

David H. Souter:

–But the fact is, in each instance what it comes down to is not your incapacity to defend your own position, and not your incapacity, in effect, to meet the evidentiary position that you feel is unfairly being foisted upon you, but rather, it comes down in every instance to the fact that you want the property now rather than the property at some later time when the two proceedings could be dealt with in an orderly fashion.

So it seems to me that it all boils down to kind of a time-money argument.

Miguel A. Estrada:

Well, it boils down to the fact that under the act of Congress that we have at issue here, we have a right to the money, and that there is no foreseeable time in the future at which the two proceedings can be dealt with in an orderly fashion.

Stephen G. Breyer:

But you don’t hold the same in respect to misrepresentation cases, restitution cases, fraud cases, dozens of other cases in which the Government might have civil remedies.

You’re not going to say all those, also, are forfeited, are you?

Miguel A. Estrada:

What we would say is that courts would have authority to frame the rules that would keep the public interest from being harmed as a result of an early–

Stephen G. Breyer:

And the same, then, here.

Not–

–The same, then, here.

Miguel A. Estrada:

–Well, that’s right, and this is such a rule, and that’s our point.

Stephen G. Breyer:

But isn’t there a difference between a rule that says, you can’t present… have certain discovery, present certain defenses, that’s what people are asking you, and a rule that says, you can’t come into court at all.

Stephen G. Breyer:

You can’t present any claim, any defense, anything.

Miguel A. Estrada:

Well, the rule was used by the district court in this case, Justice Breyer, is the rule saying if you want to defend the civil forfeiture action, you have first to face the criminal charges, and the district court was quite clear… and, in fact, I could point the Court to the top of page 26a of the pet app.–

The court made it quite clear that he would be free to defend the civil forfeiture action to his heart’s content if he would only appear in the criminal case, and–

William H. Rehnquist:

Isn’t one of the Government’s possible losses if the petitioner’s suggestion… the same thing that a statute of limitations would provide, witnesses’ recollections get stale–

Miguel A. Estrada:

–That’s right.

William H. Rehnquist:

–If the thing is brought to trial 8 years from now, the Government may have had a good case now, but the witnesses may not be around, they may have died in the meantime.

Miguel A. Estrada:

And that is true both in the criminal case and in the civil case, and I think it leads me to a further point that I wanted to make in response to Justice Souter, which is that we can readily concede for purposes of this case that there is no legally enforceable duty to show up in the criminal case that flows from the criminal case itself.

That does not mean that his failure to show up in the criminal case has a positive value to our society that we should strive to accommodate in framing rules for the orderly conduct of the civil litigation.

David H. Souter:

Well, if he has no obligation to show up, I suppose the societal value is even Steven.

It’s neither positive nor negative.

Miguel A. Estrada:

Well, that is not so, because we have a duly returned indictment, and we have a–

David H. Souter:

Then why don’t we have a set of rules that obligates him to show up.

You just conceded that he wasn’t obligated to show up.

Miguel A. Estrada:

–No, I said that it is not significant for our case in this case to show that he has a legal duty that flows from the criminal case, but what is at issue here is whether the court in the orderly process of the civil case may have a rule to protect the civil case processes from being misused in the criminal case, and it is equally true, for example, that there is no legal duty to… let’s say, for example–

John Paul Stevens:

Yes, but Mr. Estrada, by hypothesis you’re assuming you can never compel him to come to the United States, is that correct?

Miguel A. Estrada:

–Well–

John Paul Stevens:

Other than by this… by using the civil procedure to do so.

If you can’t compel him to stand trial on the criminal case, you haven’t lost anything by proving and winning your civil case.

You still get the same property, but you had to prove it instead of using this sanction to get it, and you end up with the property but no criminal judgment, and the reason you can’t get a criminal judgment is you don’t have authority to compel him to come from Switzerland to the United States.

Miguel A. Estrada:

–But he doesn’t–

John Paul Stevens:

You still end up with exactly the same result.

Miguel A. Estrada:

–But he does not have the right to buy his way out of a criminal indictment either, and he has no right–

John Paul Stevens:

He’s not buying his way out of it, he’s just staying in Switzerland.

Miguel A. Estrada:

–No, the difference is, Justice Stevens, that we’re entitled to the expectation that if we ever get our hands on him we’re going to put him in a U.S. jail, where we think he belongs, and under your view of the facts what would really happen is that we would be entitled, as of now, to say $5 million only if we’re ready to give up for good the hope of ever bringing someone to justice who spent the better life of his–

John Paul Stevens:

You haven’t given it up for good.

The only thing you’ve given up is by putting in your proof you’ve disclosed to him the witnesses who will testify against him in the criminal case.

That’s the only thing you have to give up.

Miguel A. Estrada:

–Right, and that is–

John Paul Stevens:

The tactical advantage in the criminal case may or may not be all that important.

Miguel A. Estrada:

–It is not a tactical advantage, and I understand that it is possible to have different views on the value of criminal discovery, Justice Stevens, but–

John Paul Stevens:

He’s not getting any discovery.

I’m assuming that the trial judge in this case could say, you can have no discovery, but he’s going to say to you, you can’t get the property without proving you’re entitled to it.

Miguel A. Estrada:

–And we did that.

I’m not saying that we are not required to make the prima facie showing that the statute requires us to make.

All we ask–

John Paul Stevens:

Oh, but you are.

Aren’t you saying you’re entitled to the property even without the prima facie showing?

Miguel A. Estrada:

–No, we’re not.

We’re not, and we’re also saying–

John Paul Stevens:

Well, if you’ve made the prima facie showing, why haven’t you already disclosed your case, then?

Miguel A. Estrada:

–Because we can make a prima facie showing by a verified complaint in an affidavit that shows probable cause, which under the forfeiture laws then shifts to him the burden of proving a lawful source for the funds, but it is not our view that we can come into the court without making a prima facie showing under the forfeiture laws and get a judgment.

All we’re asking for–

David H. Souter:

So it boils down to your fear that you would open the door to criminal discovery, then.

Miguel A. Estrada:

–Well–

David H. Souter:

That’s your real fear here.

Miguel A. Estrada:

–Well… yes.

David H. Souter:

You answered a question about that before, and I’m not sure that I understood your answer.

Justice Stevens alluded to the problem a second ago.

Let’s assume that he tries to get criminal discovery.

Why isn’t it perfectly open to the Government in that event to say, don’t give him the discovery, because if you do you will be providing discovery in fact in a criminal case to which he is not entitled, a case in which he will not appear, and for that reason, court, use your discretionary authority not to allow discovery.

Why can the Government not be protected that way?

Miguel A. Estrada:

Because, as I think I indicated earlier, that only pushes the problem one further step.

He will then come in and put whatever evidence he thinks he has, and in effect put us to the choice of disclosing our case to meet his evidence, or giving up on the forfeiture case, and as I was going to–

David H. Souter:

So it’s not a discovery issue then.

As you say, it just pushes it further.

You want to put in a minimal case.

You want him to know as little as possible consistent with your capacity to… in effect, to justify the forfeiture.

Miguel A. Estrada:

–No–

David H. Souter:

It’s not discovery.

It’s nondisclosure.

Miguel A. Estrada:

–We are happy… well, yes and no.

We’re happy for him to know as much as he wants so long as he knows it at a time when he no longer has the possibility of affecting–

David H. Souter:

No, no, we realize–

Miguel A. Estrada:

–the criminal jurisdiction.

David H. Souter:

–No, I realize you’re happy in that case, but what it boils down to, though, it seems to me, though, is that as you say, it’s not really that we can’t protect… we, the Government, cannot protect ourselves in discovery.

We simply don’t want to have to put on a comprehensive case, because in doing so we might provide some advantage to him for use in the later criminal case if it is later tried.

Miguel A. Estrada:

I don’t think that that’s an entirely fair recharacterization of what I said.

David H. Souter:

Well then, help me out again.

Miguel A. Estrada:

I think we’re happy to make a prima facie showing, and we’re happy to have a full-blown trial, if we are sure that we will not be endangering the criminal prosecution.

It is not that we–

David H. Souter:

Well, you’re not endangering it.

You’re endangering it in the sense that you would be disclosing more of your case than any rule of criminal discovery requires you to disclose.

That’s what you mean by endanger, isn’t it?

Miguel A. Estrada:

–Yes, but what I also mean is that the reason for the rules on criminal discovery is that what often happens when we have it is that we have obstruction of justice and witness intimidation and contrived testimony, and that the judgment of the rules being as strict as they are, and they do reflect a public policy, is that the danger of that happening cannot effectively be controlled on a case-by-case basis.

I mean, we cannot take a wait-and-see attitude to see whether someone will attempt obstruction of justice because often the first indication that we will see is the contrived defense at trial followed immediately by an unwarranted acquittal.

Anthony M. Kennedy:

So this doesn’t sound like it’s a rule of the trial court’s discretion.

Miguel A. Estrada:

Well, it is in the sense, Justice Kennedy, that the district court retains discretion in every case.

They also retain the extent of the dangers.

I–

Anthony M. Kennedy:

But from all you have said, I presume that it would have been an abuse of discretion for the trial judge not to entertain your motion–

Miguel A. Estrada:

–In an ordinary case?

Anthony M. Kennedy:

–to disentitle him here.

Miguel A. Estrada:

In an ordinary case, that would probably be true, especially with charges… with criminal charges of the nature that is at issue here.

Anthony M. Kennedy:

If we have that rule, I suppose we’re telling all other countries in, at least countries with an open judicial system, that if there is a criminal charge filed against a United States national living in the United States that person’s property can be forfeited if the person doesn’t go to the foreign country to answer their charges.

Miguel A. Estrada:

I’m not sure that I understand your question, Justice Kennedy.

Anthony M. Kennedy:

Well, you’re asking us to adopt a rule that a foreign national must come here to defend against… well, or a person with dual nationality must come here to defend a criminal charge or he’s going to lose his property automatically.

Miguel A. Estrada:

I–

Anthony M. Kennedy:

And I suppose it works the other way around.

Miguel A. Estrada:

–I think that it would be fair to say that we do say that the interest of the court in the civil case to guard against the misuse of its processes are strong enough to warrant a rule telling somebody that he should come meet criminal charges.

Antonin Scalia:

Of course, that’s no problem if we’re worried about foreign countries copying us and thereby prejudicing American citizens.

Antonin Scalia:

Many foreign countries already allow criminal prosecutions in absentia–

Miguel A. Estrada:

In absentia, that’s correct, Justice Scalia.

Antonin Scalia:

–The situation is already worse than that.

Miguel A. Estrada:

Unfortunately, yes.

John Paul Stevens:

You would take the same position even if he were not an American citizen, wouldn’t you?

Miguel A. Estrada:

Yes.

John Paul Stevens:

Yes.

Miguel A. Estrada:

In respect… as that justification goes, that is true.

I will point out, as we did in our brief, that he is, in fact, an American citizen both by birth and by breeding, and–

Ruth Bader Ginsburg:

Then with respect to that, don’t you have authority, or couldn’t an authority be exercised over him if Congress so chose that could not be exercised over someone who’s not a citizen, and there is the old Blackmer case.

Miguel A. Estrada:

–That’s correct.

Ruth Bader Ginsburg:

There is authority to call back our citizens to answer for charges here, but that kind of subpoena wasn’t sent to him, was it?

Miguel A. Estrada:

It was not sent to him to be a witness in the criminal case, and I think that the relevance of the Blackmer case here is that it shows that the United States as a sovereign has the right to have a rule that calls them back to this country to respond to court process.

There’s–

Antonin Scalia:

Mr. Estrada, tell us about fugitives from justice.

Is it, indeed, not an obligation of a citizen to present himself when he knows that there’s an arrest warrant out for him?

Miguel A. Estrada:

–Well, I think it is a… yes, but I think we think of it–

Antonin Scalia:

It’s not a separate crime, though.

Miguel A. Estrada:

–as a civic duty.

Antonin Scalia:

It’s not a separate crime to be a fugitive from justice.

Miguel A. Estrada:

It is–

Antonin Scalia:

Perhaps because there’s no use in it.

The guy’s already a fugitive from one crime.

Miguel A. Estrada:

–Well, right.

It’s like piling on… there’s no point.

Antonin Scalia:

The only purpose of such a statute would make him a fugitive from two crimes.

Miguel A. Estrada:

Well, I mean, there’s no point.

Antonin Scalia:

I guess you could have another statute making it a crime not to end your fugitive status.

That would be three crimes that you can violate.

[Laughter]

Miguel A. Estrada:

Well–

John Paul Stevens:

Well, but also you’d say the Government could take… Congress could pass a statute saying that anyone who’s been indicted and who does not appear in due course without… all his property may be forfeited, period.

Miguel A. Estrada:

–Do I say that?

John Paul Stevens:

Yes.

Miguel A. Estrada:

Subject to the qualification that I think flows from some of these courts’ due process cases that he be shown to have had notice and that it was possible in fact for him to come.

I mean, it may be that he is… that we don’t know where he is and we can’t effectively give him notice, nor we may know whether; in fact, it is possible for him to comply, but subject to that–

John Paul Stevens:

Subject to notice and ability to appear.

Miguel A. Estrada:

–Yes.

John Paul Stevens:

If you could prove that–

Miguel A. Estrada:

Yes.

Stephen G. Breyer:

–Is there any international norm on that, did you find?

Miguel A. Estrada:

On what, Justice Breyer?

Stephen G. Breyer:

Any international norm about whether country anywhere in the world can say to all citizens of the world once we file a criminal indictment against you, you have to travel here, no matter how far, and if you don’t, you lose all your property.

Miguel A. Estrada:

I don’t–

Stephen G. Breyer:

Is that ever… did you look that up at all?

Miguel A. Estrada:

–No.

I don’t think so.

From our point of view the case really does involve the very narrow question of the power of the civil court to make sure that someone will not misuse it to gain an unfair tactical advantage.

And it is, as the district court framed it, a limited rule, and as the court of appeals recognized, a rule that allows for the exercise of discretion in specific cases, this not being one of them, because Mr. Degen waived any right to discretionary claims in the court of appeals, but it is not in any sense the type of extreme rule that Mr. Robbins has indicated we have.

Anthony M. Kennedy:

Would the same rule apply if a victim sued in the district of Nevada for harm caused by an absent defendant based on a crime in the indictment, an assault, say?

Miguel A. Estrada:

Based on a crime in the indictment such that the same concern about the early disclosure of the Government’s case would apply, yes.

Anthony M. Kennedy:

And I take it on a long arm statute there’d be jurisdiction so that that judgment would be enforceable personally against the defendant, I suppose.

Miguel A. Estrada:

That’s right.

Anthony M. Kennedy:

Automatic liability.

Well, not–

Miguel A. Estrada:

Well–

Anthony M. Kennedy:

–If there’s a prima facie case.

Miguel A. Estrada:

–It is not… it is–

Anthony M. Kennedy:

If there is a prima face case.

Miguel A. Estrada:

–If there is a prima face case, and he wishes to dispute the case, there’s a reasonable procedural rule to say we have such a strong interest in protecting the integrity of the related case that we will require you to come face the music in that case as a condition to maintaining your civil action, which is no different from having filing fees or timing requirements on when you file your brief, although which are predicated on the notion that these are simple rules with which a litigant can comply and that serve usefully the purpose of allowing the court in the civil case to conduct orderly, fair, and expeditious litigation.

Ruth Bader Ginsburg:

Mr. Estrada, what is the difference… what does the Government lose when it has the funds in the court, what can’t it do that it could do if the forfeiture had gone through as you’re urging?

Miguel A. Estrada:

Well, under the view of the other side, we can’t get the funds into the U.S. Treasury where we think they belong.

Ruth Bader Ginsburg:

But you can put them in an interest-bearing account.

Miguel A. Estrada:

And to wait… what, Justice Ginsburg?

I mean, there is no reasonable indication that he will ever come to this country to face the criminal charges, so what we’re saying is that we’re going to put the money in a bank where the Government has no access to it, even though it has made a showing–

Antonin Scalia:

Well, he’ll probably die before the Government does.

You’ll get it eventually.

[Laughter]

Miguel A. Estrada:

–Yes.

Antonin Scalia:

At that point you go ahead with the civil case.

He’s beyond your criminal punishment anyway.

Miguel A. Estrada:

But we’re entitled to it now, and–

[Laughter]

And–

Ruth Bader Ginsburg:

My question is, that’s… is there something concrete, that’s different about saying, we’re entitled to it now, and saying we’ve got the principal in the bank and we’re getting interest on it, and so we’re getting the time value, we’re getting… we’re not getting the principal, but we’re getting the interest?

Miguel A. Estrada:

–I understand the point of your question, and I would say that I suppose that is a form of a compromise that has as much grounding in the court’s inherent authority as the more easily manageable rule that we have here, and since we are not the people at fault, and since by statute we are also entitled to the principal, it seems to me that as between the choice of two reasonable rules that accomplish a purpose, we’re entitled to that one that gives us our statutory rights.

John Paul Stevens:

Yes, but you’re entitled to it if you can prove it, but you want to get it without proving it.

Miguel A. Estrada:

We have proven our entitlement to the money–

John Paul Stevens:

Well–

Miguel A. Estrada:

–and all we’re looking to see is that in disputing our showing the other party doesn’t put us to the choice of giving up our statutory entitlement or giving up the very strong public interest in the integrity of a criminal prosecution.

Thank you, Mr. Chief Justice.

William H. Rehnquist:

Thank you, Mr. Estrada.

Mr. Robbins, you have 5 minutes remaining.

Lawrence S. Robbins:

Thank you, Mr. Chief Justice.

This case is a very good illustration for why what this Court called the blunderbuss of dismissal is inappropriate as way of solving the problem that the Government is concerned about.

If disentitlement is to be taken at the threshold in order to protect against the possibility that there may be discovery in the civil case that provides a window into the criminal case, district courts can do that, and they do it of every day of every week by applying Rule 26(c) of the Rules of Civil Procedure, and issue protective orders.

This case, however, is different, because in this case the Federal prosecutor said to the district judge in an argument, made and reproduced on page 6a of the appendix to our brief, that there was no need to stay the forfeiture proceedings one minute longer in deference to the criminal case precisely because the cat was out of the bag in the criminal case.

There was no need to protect against the disclosure of witnesses, no need to protect against the disclosure of any evidence, and in response to the prosecutor’s argument, the district court said, fine, you can go ahead and take all the depositions you want… Karen Degen, the petitioner’s wife, and in an order that’s reflected in the minutes of the February 1, 1993 transcript.

In short, this district judge concluded that no protective order was appropriate precisely because there was nothing to protect against.

William H. Rehnquist:

Is Karen Degen in the United States?

Lawrence S. Robbins:

She is not.

She is living with her husband and their children in Switzerland.

William H. Rehnquist:

So a discovery order was entered against her but not against Brian?

Lawrence S. Robbins:

Discovery was issued in her favor, but not in Mr. Degen’s favor, that’s correct, Your Honor.

The point here is the wonderful irony about this argument is it bears no… you know, no coherent relationship to the facts of this case, and precisely to avoid a problem that the prosecutor said was not presented, Mr. Degen is to be disentitled, dispositively sanctioned for conduct that the court has no jurisdiction even in the action in which he is a putative fugitive, to sanction him for.

Let me also get rid of one other red herring.

Antonin Scalia:

In that same exchange, what is the argument when you said, I would point out, Your Honor, that Mr. Degen is no longer a claimant in this case, he’s merely a witness?

Lawrence S. Robbins:

Well, he’d already been disentitled, so what they were saying is, you know, don’t pay any attention to the need to get his evidence because you’ve already knocked him out of the box, and to the extent that Karen is relying on his unavailability as a reason to extend the summary judgment proceedings, you shouldn’t credit his… the need for his testimony.

The other red herring I’d like to deal with is the argument that the Government has already established its right to this money.

What it has established is its right to the seizure of this money and this property through a prima facie showing, to be sure, but if I can be indulged one other Latinism, it’s also completely ex parte.

They went into court with a complaint and an affidavit that, you know, to my mind barely shows probable cause to believe any of the property was in fact used in violation of 881(a)(6) and (a)(7), and now they have the money, and now, as the law permits, it’s our burden to come into court and overcome that prima facie showing.

It’s our day in court, the first and only one we get.

Ruth Bader Ginsburg:

Mr. Robbins, what they did, what they showed is comparable to what a plaintiff would have to show in the case of an ordinary civil default judgment, right, make an ex parte showing of the entitlement to money damages.

Lawrence S. Robbins:

Well, that’s correct.

They’ve gone in and shown that they have at least that much of a claim, but the law then permits Mr. Degen to come in and overcome it, and you know, if his unavailability prejudices his capacity to make that showing, then he’s so much the worse for it.

We’re not asking that he be treated any better.

We’re asking that he be given the rights and opportunities that the law prescribes, and he’s being… you know, he’s been foreclosed those opportunities by virtue of conduct that is not against the law, period, and it seems to me that courts can’t do it and we–

Antonin Scalia:

Not against the law, you mean not criminal?

Lawrence S. Robbins:

–It is not criminal.

I mean–

Antonin Scalia:

I question whether it’s not against the law, to fail to appear.

Lawrence S. Robbins:

–Well, Your Honor adverted to whether there isn’t some other law inherent in the duty of citizenship.

It may be, although Blackmer does not deal with that issue, I would respectfully suggest, but rather a quite different issue.

William H. Rehnquist:

Thank you, Mr. Robbins.

Lawrence S. Robbins:

Thank you.

William H. Rehnquist:

The case is submitted.