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United States v. Forty-Five Thousand Nine Hundred Forty Dollars

July 11, 1984

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
FORTY-FIVE THOUSAND NINE HUNDRED FORTY DOLLARS ($45,940) IN UNITED STATES CURRENCY (TERRY C. MCKAY, CLAIMANT), DEFENDANTS-APPELLANTS



Appeal from a judgment of the Northern District of New York, Neal P. McCurn, J., granting the government's motion for judgment of the pleadings.

Oakes and Winter, Circuit Judges, and Mishler, District Judge.*fn*

Author: Mishler

MISHLER, District Judge:

Terry E. McKay appeals from a judgment of the United States District Court for the Northern District of New York, Neal P. McCurn, J., granting the government's motion for judgment on the pleadings. The basis of Judge McCurn's decision is that Terry McKay is a fugitive from justice and is therefore disentitled to call upon the resources of the court for determination of his claims in the related civil forfeiture proceeding. For the reasons stated below, we affirm the judgment of the district court.

FACTS

On May 20, 1981, Terry C. McKay, a Canadian resident, entered the United States at Churubusco, New York. The road he was travelling on did not lead to a border inspection station. He was stopped by a border patrol agent who directed McKay to follow him to the Champlain, New York Port of Entry. At the border station, McKay completed a customs declaration report as required under 31 U.S.C. § 5316 (formerly U.S.C. § 1101).*fn1 The government alleges that this report contains a material misstatement because McKay did not report being in possession of more than $5,000 when he crossed the border in violation of 31 U.S.C. § 5316. The government contends that this violation subjects the $45,490 to forfeiture under 31 U.S.C. § 5317(b).*fn2 McKay admits having the $45,490 in his possession when he crossed the border but denies making a material misstatement in the report at the border station.

After filing the report, McKay was charged with entering the United States without inspection because he had been originally travelling on a road that did not lead to a border station. He pled guilty, served ten days in jail, and was involuntarily deported at the request of the United States on June 19, 1981. On September 24, 1981, McKay submitted a petition for the remission of the forfeited $45,490. After receiving the petition for remission of forfeiture, the United States Customs Service referred the matter to the United States Attorney's Office for the Northern District of New York.

On October 14, 1981, a federal grand jury sitting in Albany, New York returned an indictment charging McKay with violating 18 U.S.C. § 1001 in making a false statement to the United States Customs Service when he entered the United States from Canada. The indictment charged that McKay stated that he did not possess over $5,000 when he actually possessed $45,940. The United States instituted this action on November 12, 1981 to enforce forfeiture of the $45,940 pursuant to 31 U.S.C. § 5317(b).

McKay filed a claim for the currency on December 21, 1981 and answered the complaint on April 30, 1982. McKay also filed a motion to stay the forfeiture action pending resolution of his petition for remission of forfeiture. Judge McCurn denied that motion on April 17, 1982.

While the civil forfeiture case was progressing, McKay refused to appear at his arraignment on the criminal charge. He refused to appear at his arraignment on the ground that to do so would be in violation of the immigration laws because of his prior deportation. The Department of Justice, through the United States Attorney, informed the court and McKay's attorney that if he entered the United States for his arraignment, the government would not prosecute him for any violation of the immigration laws. The government contends that violating 18 U.S.C. § 1001 is not an extraditable offense and McKay's refusal to reenter the United States and appear at his arraignment classifies him as a fugitive, resulting in a waiver of his rights to defend the related civil forfeiture proceeding. McKay asserts that the offense is extraditable. He argues that because the government failed to take the necessary steps to extradite him, he retains his right to participate in the civil forfeiture proceedings.

In a memorandum of decision and order dated October 3, 1983, Judge McCurn granted the government's motion for judgment on the pleadings, Fed.R.Civ.P. 12(c) in this civil forfeiture proceeding unless McKay appeared within thirty days at his arraignment in the criminal proceeding. McKay never appeared at his arraignment and Judge McCurn's judgment became final on November 2, 1983. McKay now appeals from that judgment on the grounds that he was deprived of his property without due process of law and that there were material issues of fact in dispute making application of Rule 12(c), Fed.R.Civ.P., inappropriate.

Discussion

This case presents us with two primary issues: whether McKay is a fugitive from justice and if so, whether such status bars him from defending ...


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