for exercising his right to challenge extradition; and (3) the
doctrine should not be applied to civil in rem proceedings.
This court disagrees.
As the Second Circuit has made clear, a fugitive from justice
is not simply one who flees the jurisdiction wherein he is
being prosecuted. An individual who learns of charges against
him while legally outside the jurisdiction "constructively
flees" by deciding not to return. See Jhirad v. Ferrandina,
536 F.2d 478, 483-84 (2d Cir.), cert. denied, 429 U.S. 833, 97
S.Ct. 97, 50 L.Ed.2d 98 (1976) (Jhirad II). Thus, in United
States v. $45,940, supra, the court held that a deported alien
who failed to apply for permission to reenter the United States
upon learning that charges were pending against him in this
country waived his due process rights to defend a related civil
forfeiture proceeding. 739 F.2d at 798.
The decision in $45,940 relied on a circuit case decided six
weeks earlier, United States v. Catino, 735 F.2d 718 (2d Cir.),
cert. denied, 469 U.S. 855, 105 S.Ct. 180, 83 L.Ed.2d 114
(1984), which expressly held that an individual incarcerated in
a foreign country who actively resists extradition "instead of
consenting to return to the United States" is constructively a
fugitive. 735 F.2d at 722. Although Catino presented the court
with a statute of limitations, not a disentitlement, question,
that distinction had no bearing on the court's ruling. The
holdings in Catino and $45,940 lead this court to
conclude that Johnny Eng's continued incarceration in Hong Kong
is due solely to his resistance to United States efforts to
extradite him to this country.*fn4 He is, therefore, properly
deemed a fugitive from justice. See Schuster v. United States,
765 F.2d 1047, 1050 (11th Cir. 1985) (citing Catino, court
upholds applicability of disentitlement doctrine to individual
who "established her status as a fugitive from this nation's
criminal process, particularly as of the moment she chose to
resist extradition"); c.f., United States v. Khashoggi,
717 F. Supp. 1048, 1051 (S.D.N.Y. 1989) (defendant's waiver of right
to appeal his extradition from Switzerland and his immediate
travel to New York for arraignment evidenced a willingness to
submit to the jurisdiction of the federal court).
Johnny Eng contends that he should not be treated as a
fugitive merely because he is exercising his "right" to
challenge extradition. Whatever rights Eng may enjoy under Hong
Kong law, or derivatively under the extradition treaty in
effect between the United States and the United Kingdom,
see Matta-Ballesteros v. Henman, 896 F.2d 255, 259 (7th Cir.
1990), citing United States ex rel. Lujan v. Gengler,
510 F.2d 62, 67 (2d Cir.), cert. denied, 421 U.S. 1001, 95 S.Ct. 2400,
44 L.Ed.2d 668 (1975), he does not claim — nor could he —
that they are constitutionally protected. Thus, the mere fact
that their exercise results in the loss of some other benefit
or opportunity is not proscribed. Indeed, in United States v.
Catino, 735 F.2d at 723, the Second Circuit observed that
defendant "faced a choice whether to exercise his right to
oppose extradition or gain the benefit of the statute of
limitations by fulfilling his duty to do all in his power to
return to the United States." Defendant was entitled to choose
the former course, but could not complain if he thereby lost
the latter. This logic is equally applicable to this case. Mr.
Eng remains free to challenge or consent to his extradition as
he wishes. But he cannot be heard to complain if a court draws
from the former conduct the logical conclusion that he is
intent on avoiding prosecution in this country.
Indeed, if Eng's challenge to extradition is successful in
the courts of Hong Kong, it is doubtful whether he would ever
travel to the United States to face the criminal charges
against him. He has pointedly ignored this court's invitation
to submit an affidavit stating that he wishes to return to the
United States. One of the very principles underlying the
disentitlement doctrine is the inequity of allowing fugitives
to pursue in United States' courts those cases where they
foresee the possible receipt of a benefit, while seeking to
avoid those actions that could impose burdens. See Clark v.
Dalsheim, 663 F. Supp. 1095, 1096 (S.D.N.Y. 1987). Mr. Eng
simply attempts to play a variation on this theme by arguing
that he should be allowed to preserve his right to be heard in
this civil action in the event he is unsuccessful in preventing
his extradition from Hong Kong on his criminal case. The court
Finally, although Eng urges this court to find the
disentitlement doctrine not applicable to an in rem forfeiture
proceeding, relying on United States v. $83,320, 682 F.2d 573
(6th Cir. 1982), the Second Circuit decision in United States
v. $45,940, supra, is plainly to the contrary. 739 F.2d at 797
(considering and rejecting the rationale underlying $83,320). A
number of other courts are in agreement. E.g., United States v.
One Parcel of Real Estate at 7707 S.W. 74th Lane,
868 F.2d 1214, 1216-17 (11th Cir. 1989); United States v. $129,374,
769 F.2d 583, 587-88 (9th Cir. 1985), cert. denied, 474 U.S. 1086,
106 S.Ct. 863, 88 L.Ed.2d 901 (1986); United States v.
$182,980, 727 F. Supp. 1387, 1388 (D.Colo. 1980). The primary
concern of the Sixth Circuit in $83,320 was that too broad an
application of the disentitlement doctrine to in rem
proceedings might jeopardize the rights of others, besides the
fugitive, who seek to file claims. As the history of this case
demonstrates, this court was prepared to entertain claims by
third parties who complied with the requirements of Rule C(6).
See United States v. One Parcel of Real Estate at
7707 S.W. 74th Lane, 868 F.2d at 1217; United States v. $45,940,
739 F.2d at 797.
Johnny Eng, not having filed a timely claim and answer in
this case, has failed to demonstrate standing to be heard in
opposition to this forfeiture proceeding. Moreover, his active
opposition to the United States' request that he be extradited
from Hong Kong to New York disentitles him from being heard in
these proceedings, even to request that they be stayed. His
motions are, accordingly, dismissed.
There being no claimant presently before the court who has
opposed the government's in rem forfeiture proceeding against
defendant property, this court hereby directs the Clerk of the
Court to enter default judgment in favor of the United States
as to all such property.