Transcript

CHIEF JUSTICE WILLIAM H. REHNQUIST: We'll hear argument now in Number 85-173, Brian Degen v. United States. Is that the correct pronunciation of your client's name, Mr. Robbins?

MR. ROBBINS: Mr. Chief Justice, it's actually Mr. Degen.

CHIEF JUSTICE REHNQUIST: Degen. Very well. Proceed.

MR. 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 $5-1/2 million 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 $5-1/2 million 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.

JUSTICE 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?

MR. ROBBINS: I believe it would.

I believe that Congress would not have the 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.

CHIEF JUSTICE REHNQUIST: What leads you to think that Congress wouldn't have that authority?

MR. ROBBINS: Well, I think the reason is that --

CHIEF JUSTICE REHNQUIST: I mean, are you talking about a case?

MR. ROBBINS: I'm sorry, Your --

CHIEF JUSTICE REHNQUIST: Are you talking about a decision of this Court that supports that proposition?

MR. 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.

CHIEF JUSTICE REHNQUIST: Where did your client reside before he went to Switzerland?

MR. ROBBINS: He lived in the United States.

CHIEF JUSTICE REHNQUIST: And when did he go to Switzerland?

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

CHIEF JUSTICE REHNQUIST: And when was the indictment handed down?

MR. ROBBINS: It was unsealed in October 1989.

CHIEF JUSTICE 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?

MR. ROBBINS: It would not. Our position would be that even if he were a fugitive in that sense, which he is 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.

JUSTICE SCALIA: And that Congress wouldn't?

MR. 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 --

JUSTICE ANTHONY KENNEDY: And that's so even if you make a general appearance in the action?

MR. ROBBINS: A general appearance in the forfeiture action?

JUSTICE KENNEDY: Yes.

MR. ROBBINS: And the question would again be the power of Congress --

JUSTICE 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?

MR. 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 and the sanction that's been imposed, and it might be --

JUSTICE 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.

MR. 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 --

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

MR. ROBBINS: Exactly.

JUSTICE GINSBURG: He's not stripped of that right because there's a criminal prosecution against him.

MR. ROBBINS: Exactly.

JUSTICE 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.

MR. 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 --

JUSTICE SCALIA: It's a civil matter, though. You wouldn't argue --

MR. ROBBINS: Exactly. 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 --

JUSTICE DAVID H. SOUTER: What -- assuming, even apart from any rule, that the failure to show up in fact 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.

MR. 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 --

CHIEF JUSTICE 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?

MR. 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.

CHIEF JUSTICE REHNQUIST: And would that be constitutionally objectionable, in your view?

MR. 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.

CHIEF JUSTICE 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.

MR. 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.

JUSTICE 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.

MR. ROBBINS: I think that that --

JUSTICE 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.

MR. 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 --

CHIEF JUSTICE 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.

MR. 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 --

CHIEF JUSTICE REHNQUIST: You sound as though your client might be planning to violate such an order.

MR. ROBBINS: No. (Laughter.)

MR. ROBBINS: I -- 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.

JUSTICE 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.

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.

MR. ROBBINS: Since --

JUSTICE BREYER: Is that right?

MR. ROBBINS: Since you're -- and actually, it's more than that, Justice Breyer. Since you're not here in this other case --

JUSTICE 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.

MR. ROBBINS: No question.

JUSTICE BREYER: And if we won't look at your paper, we won't look at the brief, you lose.

MR. ROBBINS: Yes, but that --

JUSTICE BREYER: All right. Now, what line do you draw?

MR. 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 is no --

JUSTICE BREYER: I mean, 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?

MR. ROBBINS: I believe that the answer to that is yes. That's exactly what --

JUSTICE 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?

MR. ROBBINS: Well, again, these are cases in which the sanction is being imposed in the very proceeding in which the --

JUSTICE 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?

MR. 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.

JUSTICE 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 requires the two proceedings to be brought as one.

MR. ROBBINS: I've heard such an argument may be made.

JUSTICE STEVENS: You've heard such an argument. (Laughter.)

JUSTICE STEVENS: 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 --

MR. ROBBINS: Well --

JUSTICE 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?

MR. ROBBINS: Well, I contend that they are separate proceedings, of course.

JUSTICE STEVENS: And it's constitutionally permissible for us to treat them as separate proceedings.

MR. ROBBINS: Well, I think it is constitutionally permissible to treat them as separate proceedings and, indeed, they are separate proceedings, but even --

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

MR. ROBBINS: Exactly, and the --

JUSTICE SCALIA: That's not a very irrational position, is it?

MR. 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.

JUSTICE GINSBURG: Mr. Robbins, in answer to Justice Scalia's question about the special and 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.

MR. 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 --

JUSTICE 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.

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

The forfeiture court has not seized the 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.

JUSTICE 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.

MR. 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.

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 respect, that there is no authority in -- certainly in any of this Court's cases for this kind of a use of an inherent power of a court.

JUSTICE 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 one, this man's a fugitive. I'm going to discount this.

MR. 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 --

JUSTICE KENNEDY: It's not only possible, is it permissible?

MR. 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 a sep ? over which the judge has no jurisdiction in the first place, he hasn't shown up.

JUSTICE 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.

MR. ROBBINS: Well, they are --

JUSTICE SCALIA: Can't we consider them effectively joined?

MR. 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.

JUSTICE 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.

MR. ROBBINS: Well --

JUSTICE SCALIA: But here it is the same court.

MR. 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 --

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

MR. ROBBINS: I understand, but I think --

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

MR. 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.

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.

JUSTICE KENNEDY: Well, could --

MR. ROBBINS: That strikes me as quite extraordinary.

JUSTICE KENNEDY: Do those who are assisting him in remaining abroad, couldn't they be liable for harboring a fugitive?

MR. ROBBINS: I -- oh, I --

JUSTICE KENNEDY: Forget the extraterritoriality aspect of it so far as the forum. Suppose he were in New York State, and he was being hidden out --

MR. 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 two years.

JUSTICE BREYER: But is that the case now? What is the status?

MR. ROBBINS: He is on --

JUSTICE 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?

MR. ROBBINS: I am --

JUSTICE 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?

MR. 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 --

JUSTICE GINSBURG: He hasn't been tried yet in Switzerland?

MR. 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.

JUSTICE SANDRA DAY O?CONNOR: Mr. Robbins, did the petitioner raise in district court the claim that the Swiss arrest ended his fugitive status?

MR. ROBBINS: Well, the Swiss arrest came in, I believe, November of 1992. He had already been disentitled at that point.

JUSTICE O?CONNOR: So it was not raised in the district court because it hadn't occurred.

MR. 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.

CHIEF JUSTICE REHNQUIST: Very well, Mr. Robbins. Mr. Estrada, we'll hear from you.