Where I Stand: A lesson from Supreme Court

Friday, July 12, 1996 | 11:59 a.m.

YOU WIN SOME and you lose some. This is the game of life and, strange as it may sound, some of our losses turn out to be wins for somebody.

About three months ago, I wrote a column that expressed hopes for a forfeiture case from Reno being upheld by the U.S. Supreme Court. This was the case of U.S. vs. Real Property located at Incline Village. It went before the Supreme Court as Brian J. Degen, Petitioner vs. United States.

Rather than get all tied up in legal arguments, I found it easier to view the issue in a rather simplistic manner. Brian Degen was indicted in October 1989 for leading a major marijuana-trafficking operation for several years. He was in Switzerland at the time and has refused to return to face the criminal charges. The government has seized much property it says he and his wife have accumulated with the funds gained from these illegal activities.

Since then, Degen has tried to further insult the federal court system from Switzerland by using several specious arguments why civil forfeiture can't be applied to his property. After several hours of reading arguments that the court heard, I was convinced that Degen had caused his problems and didn't deserve relief from the court. Rather than being denied due process guaranteed by the Fifth Amendment, he had stymied all efforts to give him these benefits. Very simply, he was a fugitive from justice attempting to use our legal system to keep the wealth the government believes he gained by illegal activity.

I had finally found a federal forfeiture case that had me cheering for a government victory.

Needless to say, the men and women on the Supreme Court didn't see it my way. I agreed with the district court and appeals court that supported the government's arguments:

A district court in a civil forfeiture proceeding, may validly strike the claim of a fugitive from a related criminal case.

* The recognized goals of the fugitive disentitlement rule support its application in the civil forfeiture setting.

* Striking the claim of a fugitive claimant does not offend the Due Process Clause of the Fifth Amendment.

Justice Kennedy delivered the opinion for a unanimous court that held "A district court may not strike a claimant's filings in a forfeiture suit and grant summary judgment against him for failing to appear in a related criminal prosecution. ...

"(a) The government contends that the district court's inherent powers authorized it to strike Degen's claims under what has been labeled the "fugitive disentitlement doctrine." Principles of deference counsel restraint in resorting to the courts' inherent authority to protect their proceedings and judgments in the course of discharging their traditional responsibilities and require its use to be a reasonable response to the problems and needs provoking it.

"(b) No necessity justifies disentitlement here. Since the court's jurisdiction over the property is secure despite Degen's absence, there is no risk of delay or frustration in determining the merits of the government's forfeiture claims or in enforcing the resulting judgment. The court has alternatives, other than the harsh sanction of disentitlement, to keep Degen from using liberal civil discovery rules to gain an improper advantage in the criminal prosecution, where discovery is more limited. Disentitlement also is too arbitrary a means of redressing the indignity visited upon the court by Degen's absence from the criminal proceedings and deterring flight from criminal prosecution by Degen and others. A court's dignity derives from the respect accorded its judgments. That respect is eroded, not enhanced, by excessive recourse to rules foreclosing consideration of claims on the merits."

What had bothered me about Degen's lack of respect for the court was treated rather lightly by the Supremes, who believe that disentitlement is too blunt an instrument to get his attention. Justice Kennedy also wrote, "A court-made rule striking Degen's claims and entering summary judgment against him as a sanction, however, would be an arbitrary response to the conduct it is supposed to redress or discourage."

Kennedy went on to say, "The right of a citizen to defend his property against attack in a court is corollary to the plaintiff's right to sue here. ... For this reason we have held it unconstitutional to use disentitlement similar to this as punishment for rebellion against the United States."

It was my contention that Degen should participate fully in all of the court's actions or he should lose his rights in those that would benefit him. Kennedy shoots down this belief when writing, "There would be a measure of rough justice in saying Degen must take the bitter with the sweet, and participate in the district court either for all purposes or none. But the justice would be too rough. A court's inherent power is limited by the necessity giving rise to its exercise. There was no necessity to justify the rule of disentitlement in this case: To strike Degen's filings and grant judgment against him would be an excessive response to the concerns here advanced."

So, I was wrong. This is why Kennedy is on the Supreme Court and I'm writing a column. It will now be interesting to see how the lower courts proceed to overcome the absence of Brian Degen and keep him from completely escaping some sort of civil or criminal justice.