- 47 F.3d 1511
UNITED STATES of America, Plaintiff-Appellee,
v.
REAL PROPERTY LOCATED AT INCLINE VILLAGE, et al.,
Defendants,
Brian J. Degen and Karyn Degen, Claimants-Appellants.
No. 93-16996.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Dec. 16, 1994.
Decided Feb. 10, 1995.
Order Amending Opinion on Denial of Rehearing and Suggestion for Rehearing
En Banc May 5, 1995.
Affirmed.
- Daniel W. Stewart, Daniel W. Stewart, Ltd.,
and C. Frederick Pinkerton, C. Frederick Pinkerton, CHTD., Reno, NV, for
claimants-appellants.
Greg Addington, Asst. U.S. Atty., Reno, NV, for plaintiff-appellee.
Appeal from the United States District Court for the District of Nevada.
Before: SNEED, NORRIS, and HALL, Circuit Judges.
CYNTHIA HOLCOMB HALL, Circuit Judge:
Brian and Karyn Degen appeal from judgments entered against them in the
district court on their claims to the defendant properties in this civil
forfeiture action. The district court held in a published opinion that
Brian Degen (hereinafter referred to as "Brian") was "disentitled"
from pursuing his claim to the defendant properties under the fugitive
disentitlement doctrine. See, e.g., United States v. $129,374 in United
States Currency, 769 F.2d 583 (9th Cir.1985), cert. denied, 474 U.S. 1086,
106 S.Ct. 863, 88 L.Ed.2d 901 (1986). Two and one-half years later, the
district court entered judgment against Karyn Degen ("Karyn")
pursuant to Local Rule 140-6 of the District of Nevada, which provides
in part that the failure of a party to file an opposition to a motion "shall
constitute a consent to the granting of the motion." The district
court entered judgment under this rule when Karyn failed to file a response
to the government's summary judgment motion against her, despite receiving
several extensions of time and being warned that the court intended to
invoke Local Rule 140-6.
We have jurisdiction under 28 U.S.C. Sec. 1291 and now affirm as to both
appellants.
FACTS AND PROCEDURAL HISTORY
This civil forfeiture action under 21 U.S.C. Secs. 881(a)(6) & (7)
involves several million dollars worth of real and personal property, bank
accounts, property income, and business interests located in California,
Nevada, and Hawaii. The government initiated forfeiture proceedings against
a wide array of property in 1989; after the Degens filed claims to a substantial
portion of the property, the government severed those properties and made
them the subject a second complaint. The complaint alleges that all the
defendant properties were the fruits of and/or used to facilitate a massive
marijuana trafficking operation Brian had participated in for over twenty
years, beginning in the late 1960s. In a separate proceeding, a grand jury
in the District of Nevada indicted Brian on a wide array of criminal charges
relating to the alleged marijuana smuggling and related money laundering
activities.
Brian is a Swiss citizen. Shortly before being indicted, he left the United
States and resettled with his family in Switzerland. Under the extradition
treaty between Switzerland and the United States, neither country is obligated
to extradite its own nationals, so the United States government has been
unable to secure his return to this country to face the criminal charges
in Nevada. Brian refused to return voluntarily to the United States when
he learned of the criminal charges against him. He was apparently arrested
in Switzerland in late 1992, although the nature and disposition of the
Swiss charges remain something of a mystery. There is no indication, at
any rate, that Brian has at any point during the five years since his indictment
made a good faith attempt to submit to the criminal jurisdiction of the
Nevada district court.
The government first moved for summary judgment in May 1990. The district
court granted the motion with respect to Brian, holding that he was a fugitive
from justice in the related criminal case and therefore was not entitled
to contest the civil forfeiture action. The court denied the first motion
against Karyn, finding that she had raised triable issues of fact with
respect to her innocent owner defense.
The government moved again for summary judgment in December 1992, against
Karyn only. The second motion was supported by affidavits of three of Brian's
alleged partners in his drug smuggling business, detailing their illegal
activities and the sizeable amounts of money Brian earned therefrom over
the years. The affiants also alleged that Brian had no significant income
from legitimate sources during the long period covered by the criminal
indictment. The motion was further supported by documentary evidence and
an accompanying authenticating affidavit by the Assistant United States
Attorney handling the case.
Under Local Rule 140-4, Karyn initially had fifteen days in which to respond
to the summary judgment motion. She obtained numerous extensions of this
deadline, claiming that sealing orders obtained by the government made
it impossible to gather evidence in support of her claims. After a hearing
in February 1993, the district court made all relevant documents available
to Karyn to use in preparing her response to the motion, and reopened discovery
for sixty days. When Karyn failed to file a response to the summary judgment
motion before a final deadline imposed by the district court had passed,
the court entered judgment against her pursuant to Local Rule 140-6.
I.
[1] The disentitlement doctrine provides that a fugitive from justice under
certain circumstances loses the right to call upon the resources of the
courts. In a leading Supreme Court case on the subject, for example, a
criminal defendant fled after being convicted and the Court held that his
escape "disentitle[d him] to call upon the resources of the Court
for determination of his" direct appeal. Molinaro v. New Jersey, 396
U.S. 365, 366, 90 S.Ct. 498, 499, 24 L.Ed.2d 586 (1970); compare Ortega-Rodriguez
v. United States, --- U.S. ----, ----, 113 S.Ct. 1199, 1209, 122 L.Ed.2d
581 (1993)
- ("[W]hen a defendant's flight and recapture
occur before appeal, the defendant's former fugitive status may well lack
the kind of connection to the appellate process that would justify an appellate
sanction of dismissal.").
-
- The disentitlement doctrine applies in more
contexts than just direct criminal appeals. The circuit courts have extended
the doctrine to disentitle fugitives from participating in civil proceedings
related to the criminal cases they have fled. See, e.g., Conforte v. Commissioner
of Internal Revenue, 692 F.2d 587 (9th Cir.1982) (taxpayer who fled after
conviction on criminal tax evasion charges not entitled to prosecute appeal
of tax court determination of tax deficiencies and penalties), stay denied,
459 U.S. 1309, 103 S.Ct. 663, 74 L.Ed.2d 588 (1983) (Rehnquist, J., in
chambers); Doyle v. United States Dep't of Justice, 668 F.2d 1365 (D.C.Cir.1981)
(fugitive not entitled to seek judicial relief under Freedom of Information
Act), cert. denied, 455 U.S. 1002, 102 S.Ct. 1636, 71 L.Ed.2d 870 (1982);
Broadway v. City of Montgomery, 530 F.2d 657 (5th Cir.1976) (court of appeals
refused to decide appeal of fugitive seeking damages and injunctive relief
for illegal wiretap). More specifically, the disentitlement doctrine has
been applied on a regular basis by this court and other circuits in the
context of civil forfeiture claims. See, e.g., $129,374, 769 F.2d at 587;
United States v. Timbers Preserve, Routt County, Colorado, 999 F.2d 452
(10th Cir.1993); United States v. Eng, 951 F.2d 461(2nd Cir.1991); United
States v. One Parcel of Real Estate at 7707 S.W. 74th Lane, Miami, Dade
County, Florida, 868 F.2d 1214 (11th Cir.1989); United States v. Pole No.
3172, Hopkinton, 852 F.2d 636 (1st Cir.1988).
[2] This court left open in $129,374 the question whether the forfeiture
action must be "directly related" to the criminal proceeding
from which the claimant has fled, finding it unnecessary to resolve the
issue because the "criminal conviction and the property involved in
this civil forfeiture proceeding are integrally related parts of the same
unlawful drug dealing scheme." 769 F.2d at 588. We need not decide
that question either, for the same reason. The government submitted evidence
in the present case to establish that all of the properties it seeks to
seize were used in connection with or purchased with the proceeds of the
various illegal drug transactions which form the basis of Brian's criminal
indictment. In addition, the government's "star witness" in the
forfeiture case, Ciro Mancuso, and possibly other witnesses, are codefendants
in the criminal case. Under these circumstances, the criminal and forfeiture
actions are closely enough connected to satisfy any relatedness test.
[3][4] The present case differs from prior Ninth Circuit applications of
the disentitlement doctrine in one respect. In prior cases, the claimants
have fled after being convicted in a related criminal proceeding. See,
e.g., $129,374, 769 F.2d at 584; Conforte, 692 F.2d at 589. Here, by contrast,
Brian has been indicted but not tried or convicted of any criminal charges.
This distinction does not, however, compel a finding that the fugitive
disentitlement doctrine does not apply. The doctrine rests on the premise
that " 'the fugitive from justice has demonstrated such disrespect
for the legal processes that he has no right to call upon the court to
adjudicate his claim.' " Ortega-Rodriguez, ---- U.S. ----, 113 S.Ct.
at 1206 (quoting Ali v. Sims, 788 F.2d 954, 959 (3d Cir.1986)). Although
Brian has not been arrested or tried, he has certainly "demonstrated
disrespect" for the district court by refusing to submit to its jurisdiction
in the criminal action.
[5] The district court correctly concluded in its opinion dismissing Brian's
claims in December 1990 that he was at that time a fugitive from justice
because he knew he had been indicted in Nevada but refused to return. 755
F.Supp. at 309-10 (citing United States v. Ballesteros-Cordova, 586 F.2d
1321, 1323 (9th Cir.1978) and United States v. Gonsalves, 675 F.2d 1050,
1052 (9th Cir.), cert. denied, 459 U.S. 837, 103 S.Ct. 83, 74 L.Ed.2d 78
(1982)). At that time he was apparently free to return to the United States
to contest the forfeiture action, but chose not to do so, presumably to
avoid arrest on the criminal charges.
Under these circumstances, Brian was a fugitive. See $129,374, 769 F.2d
at 587-88 ("It is important to recognize that Lewis has complete control
over the protection of his property interests in this forfeiture proceeding;
if he finds his interests are sufficiently worth defending, he can terminate
his fugitive status and present his own defense."); Gonsalves, 675
F.2d at 1055 (fugitive status continues until accused makes a "good
faith effort to surrender").
Brian was apparently arrested by Swiss authorities on November 19, 1992.
His counsel strenuously argued in the district court and again in this
court that the Swiss arrested Brian at the behest of the United States
government, which wished to "transfer" its prosecution to Switzerland
because extradition was impossible. While counsel argues this point, however,
the record contains no admissible evidence to support these claims.
The only document submitted to the district court that even arguably tended
to prove that Brian was arrested in Switzerland was an affidavit of the
Degens' counsel, submitted by Karyn Degen in support of a request for an
extension of time to respond to the second summary judgment motion. The
affidavit, however, consists of hearsay, multiple hearsay, and virtually
no factual statements based on personal knowledge.
The only other purported evidence of United States involvement in Brian's
arrest in Switzerland are two letters from the Department of Justice Office
of International Affairs to Swiss authorities, supposedly proving that
the United States government was "transferring" its prosecution
of Brian to Switzerland.
There are numerous obstacles to Brian's attempt to use these letters as
evidence of improper activity by the government. To begin with, the letters
are unauthenticated and, so far as we can discern, are hearsay not subject
to any exception. Furthermore, the letters were never submitted to the
district court and constitute an inappropriate attempt to supplement the
factual record on appeal. (FN1)
Even putting these problems aside, Brian has never proffered any supporting
evidence or argument explaining the import of the letters. For example,
despite being in contact with Brian's Swiss local counsel and possibly
with Brian himself, Brian's counsel in this case has apparently failed
to obtain a copy of the Swiss charges against Brian in the two years since
the arrest in Switzerland. Without even that basic piece of information,
any conclusion as to whether the Swiss prosecution was a "transfer"
of the Nevada charges would be sheer speculation. Brian has also submitted
no legal authority explaining how the purported "transfer" of
prosecutions from the United States to Switzerland was effected. Our research
reveals no treaty between the United States and Switzerland which authorizes
such transfers of prosecution; other bilateral treaties to which the United
States is a party, however, do explicitly provide such a mechanism. See,
e.g., Treaty on Extradition, U.S.-Denmark, June 22, 1972, art. 5, 25 U.S.T.
1293 (if the requested state declines to extradite its own national, "the
requested State shall submit the case to its competent authorities for
the purpose of prosecution"); Extradition Treaty, U.S.-Finland, June
11, 1976, art. 4(2), 31 U.S.T. 944 (same); Treaty of Extradition, U.S.-Netherlands,
June 24, 1980, art. 4(3), T.I.A.S. 10733 ("If extradition is not granted
solely on the basis of the nationality of the person sought, the Requested
State shall, at the request of the Requesting State, submit the case to
its competent authorities for the purpose of prosecution, provided that
the offense constitutes a criminal offense under the law of that State
and that State has jurisdiction over the offense.").
[6] All in all, we find that there is no credible evidence properly in
the record before us to support Brian's allegations of government involvement
in his arrest and prosecution in Switzerland. Furthermore, there is language
in several cases suggesting that the fact that a fugitive is incarcerated
in a foreign jurisdiction does not preclude application of the fugitive
disentitlement doctrine. See, e.g., Timbers Preserve, 999 F.2d at 456 ("Regardless
of the reasons for Pietri's incarceration in Laos, he was a fugitive from
this country when he left and remained a fugitive until he was returned,
even though he may have lost control of his own freedom in Laos.");
Eng, 951 F.2d at 464 ("One may flee though confined in prison in another
jurisdiction."); United States v. Catino, 735 F.2d 718, 722 (2nd Cir.)
(noting that "a fugitive who is imprisoned in a foreign jurisdiction
and then resists his return to the United States may remain a 'person fleeing
from justice' ") (citation omitted), cert. denied, 469 U.S. 855, 105
S.Ct. 180, 83 L.Ed.2d 114 (1984). Even assuming the situation would be
different if Brian could prove that the United States government was somehow
involved in his arrest in Switzerland, we find that he has not so proven.
[7] The district court erred in one respect in its 1990 opinion. The district
court found that upon finding that Brian was a fugitive from justice, this
court's decision in $129,374 allowed for no discretion in the application
of the disentitlement doctrine. As a result, the court did not consider
whether the doctrine should, in the exercise of its discretion, be applied.
Subsequent decisions, however, have made clear that the doctrine is discretionary,
not mandatory. See, e.g., Ortega-Rodriguez, --- U.S. at ---- n. 23, 113
S.Ct. at 1209 n. 23 ("dismissal of fugitive appeals is always discretionary,
in the sense that fugitivity does not 'strip the case of its character
as an adjudicable case or controversy' ") (quoting Molinaro, 396 U.S.
at 366, 90 S.Ct. at 499); United States v. Van Cauwenberghe, 934 F.2d 1048,
1055 (9th Cir.1991) ("while we clearly have the discretionary authority
to dismiss this appeal, there is 'no per se requirement of dismissal in
[these] ... case[s]' "(quoting Hussein v. INS, 817 F.2d 63, 63 (9th
Cir.1986) (Norris, J., concurring))).
[8] Brian does not, however, argue this issue on appeal. We therefore deem
it to be waived. We thus hold that the district court properly dismissed
Brian's claims to the defendant properties under the fugitive disentitlement
doctrine. (FN2)
II.
Karyn argues that the district court erred in entering summary judgment
against her under Local Rule 140-6. She contends that genuine issues of
material fact exist as to her innocent owner defense to the forfeiture
action, and that she was unable to prepare a response to the government's
second summary judgment motion due to the sealing of various documents
and the inability of certain witnesses to testify in depositions about
matters also under seal. We find, however, that the district court properly
exercised its discretion in granting the government's second summary judgment
motion.
A. Procedural Background
The government filed its second summary judgment motion on December 2,
1992. District court Local Rule 140-6 provides that "[t]he failure
of an opposing party to file a memorandum of points and authorities in
opposition to any motion shall constitute a consent to the granting of
the motion." Under Local Rule 140-4, a party normally has fifteen
days in which to respond to any motion. The government initially agreed
to a fifteen-day extension of that deadline. Karyn did not, however, adhere
to that timetable.
On January 5, 1993, several days after the first extended deadline passed,
Karyn moved for an extension of time to reply. Karyn argued that the sealing
of several documents, including affidavits supporting the government's
summary judgment motion, made it impossible to defend the motion. She also
complained that she was unable to respond to the motion because the assistance
of Brian Degen was essential and he had been arrested by Swiss authorities,
allegedly at the behest of the United States government, and was being
held "incommunicado."
In response to this motion, the district court held a hearing. At the close
of the hearing, the court found that two of the government's affidavits
supporting its motion should not have been sealed and ordered them made
available to Karyn. A third affidavit, that of Ciro Mancuso, was ordered
sealed but made available to Karyn and her counsel to prepare their response
to the motion. The court also reopened discovery for sixty days and allowed
Karyn until twenty days after the new close of discovery to respond to
the summary judgment motion.
When Karyn failed to respond to the motion by the new deadline, the district
court, on May 3, sua sponte granted an additional two week extension. The
court warned, however, that if Karyn failed to respond by May 17, "said
motion will be forthwith granted." Rather than comply, however, Karyn
on May 5 filed a Motion for Order Staying Further Proceedings in This Case
Pending Resolution of Related Criminal Actions. On May 19, the government
filed an opposition to Karyn's request for a stay, and a request for judgment
in accordance with the May 3 Minute Order.
On June 2, the district court denied Karyn's motion for a stay and granted
an additional twenty days in which to respond to the summary judgment motion.
The court again explicitly warned Karyn that it would enter summary judgment
against her if she failed to respond:
[Karyn] has failed to respond [to the summary judgment motion] within the
time period required by the rules. However, rather than to default [her]
at this time, the Court will grant an additional period of twenty (20)
days to respond to the motion for summary judgment. If [Karyn] fails to
respond to said motion within 20 days summary judgment will be entered.
[Karyn] has been allowed ample time to file a response to this motion.
When Karyn failed to file any response or other motion, the district court
entered summary judgment against Karyn in an order dated June 23, 1993.
B. Discussion
Federal Rule of Civil Procedure 83 permits the district courts to promulgate
local rules governing practice and procedure, so long as the rules do not
conflict with the Federal Rules. In appeals from grants of default summary
judgment, this court has upheld two Arizona district local rules which
are substantially identical to Nevada Local Rule 140-6. Henry v. Gill Indus.,
Inc., 983 F.2d 943, 949-50 (9th Cir.1993) (upholding Local Rule 11(i) of
the District of Arizona, providing that failure to serve and file answering
memoranda "may be deemed a consent to the denial or granting of the
motion summarily"); United States v. Warren, 601 F.2d 471, 473 n.
1 (9th Cir.1979) (upholding Arizona Local Rule 11(g), providing that "[a]
failure to file a brief or memorandum of points and authorities in support
of or in opposition to any motion shall constitute a consent of the party
failing to file such a brief or memorandum to the denial or granting of
the motion.").
[9] In Henry, we noted that the "interrelationship between Rule 56
and Rule 83" requires that the local rule leave a measure of discretion
in the hands of the district court. 983 F.2d at 949-50. Because summary
judgment is only proper under Rule 56 if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law, a
local rule cannot mandate automatic entry of judgment for the moving party
without consideration of whether the motion and supporting papers satisfy
the requirements of Rule 56. Id. at 950. Henry and Warren, 601 F.2d at
473, both held that the Arizona rules phrased similarly to Nevada Local
Rule 140-6 permitted sufficient discretion.
[10] Local Rule 140-6 provides that failure to file an opposition to a
motion "shall constitute a consent to the granting of the motion."
While the rule allows no discretion in finding that consent has been given,
it does not remove the district court's discretion as to whether to grant
the motion. As this court observed in Warren, " '[c]onsent' when imposed
by rules such as 11(g) can be 'withdrawn' by 'permission' of the court
given in its 'discretion.' That is, fictional 'consent' under Rule 11(g)
is never a burden from which the transgressor can not be relieved."
601 F.2d at 473.
Local Rule 140-6 allows the same discretion approved in Warren, so that
the district court retains the power not to grant judgment despite a violation
of the rule, if the underlying motion is deficient. We therefore hold that
the rule is facially valid.
[11][12][13] The district court's grant of summary judgment against Karyn
would consequently be permissible so long as the government's motion satisfied
Rule 56, and we find that it did. Civil forfeiture actions under 21 U.S.C.
Secs. 881(a)(6) & (7) are in rem proceedings in which the property
seized is the defendant. United States v. One 1985 Mercedes, 917 F.2d 415,
419 (9th Cir.1990). The government bears the initial burden of showing
probable cause that the property seized is the proceeds of a federal narcotics
violation or was used to commit or facilitate such a violation. Id. Although
the government must show "more than mere suspicion," establishing
probable cause is not a heavy burden, requiring only that the government
"demonstrate by some credible evidence the probability that the [property]
was in fact" drug-related. United States v. Dickerson, 873 F.2d 1181,
1184 (9th Cir.1988) (emphasis in original); see also United States v. $5,644,540.00
in U.S. Currency, 799 F.2d 1357, 1362 (9th Cir.1986) (government must support
seizure with "less than prima facie proof but more than mere suspicion");
United States v. One 56-Foot Motor Yacht Named the Tahuna, 702 F.2d 1276,
1281 (9th Cir.1983) (standard of probable cause is "similar to that
required to obtain a search warrant"). Once the government succeeds
in establishing probable cause, the burden of proof shifts to the claimant
to show by a preponderance of the evidence that the property is not forfeitable.
United States v. $215,300 U.S. Currency, 882 F.2d 417, 419 (9th Cir.1989),
cert. denied, 497 U.S. 1005, 110 S.Ct. 3242, 111 L.Ed.2d 752 (1990).
[14] The government submitted all new evidence in support of its second
summary judgment motion. The affidavits supporting the second motion consist
of statements by Brian Degen's "smuggling partners" which, if
believed, establish that Brian earned enormous amounts of money from illegal
narcotics trafficking and had virtually no legitimate income. (FN3) This
evidence suffices to establish probable cause that all of the properties
seized were purchased with the proceeds of, or used to facilitate, illegal
transactions.
In response to the first summary judgment motion, the Degens submitted
evidence intended to establish that some of the defendant properties were
not forfeitable in their entirety because they had been purchased in part
with Karyn's separate property. Without expressing any opinion as to whether
the district court properly ruled that this evidence raised a genuine issue
of fact with respect to Karyn's claims at the time of the first motion,
we find the evidence irrelevant to our review of the district court's Local
Rule 140-6 decision of the second motion.
[15] Under Henry, default summary judgment is proper unless "the movant's
papers are themselves insufficient to support a motion for summary judgment
or on their face reveal a genuine issue of material fact." 983 F.2d
at 949 (emphasis added). We recently reaffirmed that the facial sufficiency
of the moving party's papers is a paramount consideration whenever a district
court contemplates entering a default summary judgment. Marshall v. Gates,
44 F.3d 722 (9th Cir.1995). In Marshall, we held that the district court
improperly granted summary judgment in favor of the defendants when the
plaintiffs filed and served their response to the motion after the deadline
imposed by a local rule of court. Id. at 725. We held that the district
court could not enter judgment without considering the sufficiency of the
moving party's papers and, in fact, that the defendant's papers were in
that case insufficient on their face to sustain the summary judgment. Id.
Here, unlike in Marshall, the government's papers were sufficient and on
their face revealed no factual issue. Karyn might possibly have averted
summary judgment simply by resubmitting the same evidence she offered in
response to the first motion. She did not do so, however, and therefore
cannot complain that the evidence was not considered when she defaulted.
While Karyn was under no obligation to submit evidence in opposition to
the motion, the government was entitled to summary judgment on the basis
of its undisputed evidence.
[16] We review the district court's decision to grant judgment for violation
of Local Rule 140-6 for abuse of discretion. See Warren, 601 F.2d at 474
("Only in rare cases will we question the exercise of discretion in
connection with the application of local rules."); Carey v. King,
856 F.2d 1439, 1440 (9th Cir.1988) (reviewing local rule allowing dismissal
for failure to prosecute); Miranda v. Southern Pacific Transp. Co., 710
F.2d 516, 521 (9th Cir.1983) ("District courts have broad discretion
in interpreting and applying their local rules."). The district court
did not abuse its discretion in this case. Karyn was allowed a total of
over six months to respond to the government's summary judgment motion.
Even assuming that the early delays were necessary because various documents
were sealed due to the related criminal prosecution, that was no longer
the case after the district court's February order reopening discovery
and making all documents available to Karyn.
Karyn had the opportunity to depose all witnesses whose affidavits the
government submitted in support of its motion. (FN4) We also find little
merit in her contention that she was prejudiced by the district court's
conditioning her right to submit a declaration by Brian Degen on a showing
that he was unavailable for a deposition. Karyn did not and still does
not explain how it would have been possible to obtain a sworn affidavit
from Brian, who was allegedly being held "incommunicado" in a
Swiss prison at that time, whereas a deposition would have been impossible.
Furthermore, she made absolutely no attempt to present any such declaration
to the district court or to show that Brian was in fact unavailable for
a deposition.
[17][18][19] The district court specifically warned Karyn at least twice
that it would enter judgment under Local Rule 140-6 if she failed to respond.
The court sua sponte granted an additional extension. Under these circumstances,
granting the government's motion was not an abuse of discretion. (FN5)
See, e.g., Henderson v. Duncan, 779 F.2d 1421 at 1423-25 (9th Cir.1986)
(no abuse of discretion in dismissing complaint where district court had
granted four continuances and warned plaintiff three times of possibility
of dismissal as sanction for failure to file proposed pretrial order).
III.
Shortly before oral argument in this case, the Degens filed a document
entitled "Motion to Remand with Instructions to Dismiss with Prejudice."
The gist of the motion, which in reality raised a new issue on appeal which
had not previously been briefed by the parties, is that this civil forfeiture
case must be dismissed on double jeopardy grounds. We find this argument
to be utterly without merit.
The Degens rely on the recent decision by a panel of this court in United
States v. $405,089.23 U.S. Currency, 33 F.3d 1210 (9th Cir.1994), which
holds that civil forfeiture constitutes punishment for double jeopardy
purposes and, therefore, the Fifth Amendment's Double Jeopardy Clause precludes
the government from bringing a civil forfeiture action based on conduct
for which the claimant has already been criminally prosecuted. Although
$405,089.23 may turn out to have far-reaching implications for civil forfeiture
actions, it has no effect in the present case.
[20] The motion purports to be on behalf of both appellants. So far as
Karyn Degen is concerned, the suggestion that she has been placed in double
jeopardy comes dangerously close to being frivolous. It requires no probing
analysis to conclude that one's right to be free from double jeopardy cannot
be violated by being placed only once in jeopardy. Unlike her husband,
Karyn has not been indicted, much less tried or convicted, of any criminal
charges related to this forfeiture action. Karyn therefore has no plausible
argument that she is entitled to relief under the Double Jeopardy Clause.
[21][22] Brian's double jeopardy claim is almost as weak. He has been indicted
in the District of Nevada on drug trafficking and money laundering charges
related to the present forfeiture action. He has not, however, been arrested
or tried. It is well-settled that jeopardy does not attach until the beginning
of a criminal trial. See, e.g., Crist v. Bretz, 437 U.S. 28, 37 n. 15-38,
98 S.Ct. 2156, 2161-62 n. 15-38, 57 L.Ed.2d 24 (1978) (jeopardy attaches
when jury is empaneled and sworn or, in a bench trial, when the first witness
is sworn). Thus, there is no jeopardy in the criminal action and this forfeiture
case represents at best the "first" jeopardy. We reject as well
any suggestion that the Swiss prosecution of Brian enters into the double
jeopardy calculus, since Switzerland is without a doubt a separate sovereign
for double jeopardy purposes.
IV.
The judgments of the district court against both Brian and Karyn Degen
are AFFIRMED.
ORDER
May 5, 1995
Appellant Brian Degen's Motion for Leave to File Reply in Support of Petition
for Rehearing and Suggestion for Rehearing En Banc is DENIED.
The opinion filed February 10, 1995, is amended to include the following
new footnote number 2, inserted after the last word on page 1518:
[Editor's Note: Amendments incorporated for purpose of publication.]
With these amendments, the panel has voted unanimously to deny the petition
for rehearing. Judge Hall votes to reject the suggestion for rehearing
en banc and Judges Sneed and Norris so recommend. The full court has been
advised of the suggestion for rehearing en banc and no active judge has
requested a vote on whether to rehear the matter en banc. Fed.R.App.P.
35.
The petition for rehearing is DENIED and the suggestion for rehearing en
banc is REJECTED.
FN1. Just prior to oral argument, the Degens made a formal motion to supplement
the record on appeal with these letters. We denied the motion. The present
discussion is intended in part to explain that ruling.
FN2. While this appeal was pending, the Supreme Court decided United States
v. James Daniel Good Real Property, --- U.S. ----, 114 S.Ct. 492, 126 L.Ed.2d
490 (1993), which held that seizure of real property for forfeiture without
prior notice and a hearing violates the owner's due process rights under
the Fifth Amendment. If not for Brian's fugitive status, the rule of Good
would apply to this case. See United States v. Real Property Located at
20832 Big Rock Drive, No. 93-55281, slip op. at 3843, 1995 WL 150859 (9th
Cir. Apr. 7, 1995). However, the fugitive disentitlement doctrine precludes
Brian from contesting the government's seizure of his properties.
FN3. The Degens claim that the government's affidavits in support of the
motion were defective. This contention is meritless. The declarations all
appear to be based on personal knowledge, relating events which the declarants
witnessed or were told by Brian in the course of their smuggling and financial
dealings. Certainly, the Degens might have been able to attack the declarants'
credibility had the case gone to trial, but such impeachment would affect
the weight of the evidence, not its admissibility, and is immaterial for
summary judgment purposes.
FN4. Karyn argues that she was unable fully to depose certain witnesses
because they refused to answer questions regarding their sealed plea agreements
in related criminal cases. Therefore, she claims, she was unable to elicit
testimony showing the witnesses' bias. This claim, however, is irrelevant:
on a motion for summary judgment, the district court would not have considered
the credibility of the declarants supporting and opposing the motion. See,
e.g., National Union Fire Ins. Co. of Pittsburgh v. Argonaut Ins. Co.,
701 F.2d 95, 97 (9th Cir.1983) ("neither a desire to cross-examine
an affiant nor an unspecified hope of undermining his or her credibility
suffices to avert summary judgment") (citations omitted). Thus, Karyn's
inability to examine the declarants for bias was in no way prejudicial.
FN5. Karyn further contends that the district court erred by not granting
her motion for a stay pending completion of the related criminal proceedings,
when no further sealing orders would be necessary. The decision to grant
a continuance is committed to the discretion of the trial judge. See Ungar
v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849-50, 11 L.Ed.2d 921 (1964);
Mesa Verde Const. Co. v. Northern Cal. Dist. Council of Laborers, 820 F.2d
1006, 1011 (9th Cir.1987) (no abuse of discretion in denying motion for
further discovery when party had access to relevant documents during four
week discovery extension and failed to make formal motion for further extension
under Fed.R.Civ.Pro. 56(f)), vacated on other grounds, 861 F.2d 1124 (9th
Cir.1988) (en banc); United States v. 2.61 Acres of Land, More or Less,
791 F.2d 666, 670 (9th Cir.1986) (denial of continuance will not be overturned
unless arbitrary or unreasonable). When the district court denied the stay,
this case had been pending for five years and Karyn had over six months
to respond to the second summary judgment motion, including a sixty-day
reopened discovery period. Furthermore, the request for an indefinite stay
pending completion of the criminal proceedings seems somewhat disingenuous,
since there is no prospect that the criminal proceedings will be concluded
so long as Karyn's husband remains a fugitive. Under these circumstances,
denial of the request for a stay was not an abuse of discretion.