Degen v. United States Page 17

Degen v. United States general information

Media for Degen v. United States

Audio Transcription for Oral Argument - April 22, 1996 in Degen v. 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.