The opinion of the court was delivered by: ROBERT CARTER, Senior District Judge
The Government brought this action seeking judicial forfeiture
of all right, title, and interest in real property and
appurtenances located at 479 Tamarind Drive, Hallandale, Florida
("defendant property"). Arthur Froom, a.k.a. Arthur Kissel
("Froom") and other individual claimants to the property (Elliot
Pearl ("Pearl") and Susan Szilazi ("Szilazi"), collectively the
"individual claimants") contested the forfeiture.
The individual claimants move to dismiss the Government's
verified complaint, asserting their own claims and those of the
two corporate claimants to the property (LaFontaine Rish Medical
Group Ltd. ("LRMG") and Medical Group Research Group Associates,
Ltd. ("MGRA"), each registered in Ontario, Canada*fn1
(collectively, the "corporate claimants.")) They also move for
summary judgment against the Government. The Government asserts
that the individual claimants lack standing to contest the
forfeiture and request that the court treat the motion to dismiss
brought on behalf of the corporate claimants as a request for
summary judgment which the court would defer ruling upon until
after further discovery. I. BACKGROUND
Froom's wife and former business associate, Sonia LaFontaine
("LaFontaine") was arrested on March 2, 1998. On March 12, 1998,
a grand jury returned an indictment charging LaFontaine and Froom
with mail fraud. Indictment, United States v. LaFontaine, No.
98 Cr. 251 (S.D.N.Y. March 20, 1998). A superseding indictment
adding additional counts was later issued. Superseding
Indictment, United States v. LaFontaine, No. 98 Cr. 251
(S.D.N.Y. March 29, 2000). LaFontaine was convicted of charges
related to a healthcare fraud conspiracy and sentenced to 135
months of imprisonment. Judgment, United States v. Lafontaine,
No. 98 Cr. 251 (S.D.N.Y. March 14, 2002).
On or about February 27, 1998, Froom fled to Canada to avoid
arrest for his role in the healthcare fraud conspiracy. Four
months later, a request for his extradition was approved by the
Canadian authorities. Minister's Approval of Treaty Request, No.
000372 (June 18, 1998). Froom was subsequently arrested in
Toronto on an immigration warrant. Record of Inquiry, In re
Froom, No. 0003-98-00800 at 8 (Can. Immigration and Refugee Bd.
May 25, 2000). He was released on bond pending the outcome of his
appeals of his deportation order. Froom v. Canada, No.
T-2024-01, 2002 Fed.C.C. Lexis 567 (Fed. Ct. Dec. 9, 2002). Froom
appealed without success to the Canadian Federal Court of Appeals
(Froom v. Canada, No. A-570-03, 2004 W.C.B.J. Lexis 2262 (Fed. Ct.
App. Oct. 21, 2004) (extradition order affirmed)) and to the
Supreme Court of Canada. Froom v. The Minister of Justice, No.
30686 (Can. March 17, 2005) (leave to appeal dismissed).*fn2
Froom remains at large.
The Government seeks judicial forfeiture of the defendant
property, which the Government maintains was purchased by Froom
and LaFontaine in order to launder proceeds of the healthcare
fraud conspiracy. Verified Compl. ¶ 16-20. While appealing his
extradition from Canada to face criminal charges in this court,
Froom sought to appear before this court (by mail) in order to
contest the forfeiture. Claim of Arthur Froom, May 13, 1998.
In the instant motion, Froom reasserts his claim to the
defendant property and seeks dismissal the forfeiture
action.*fn3 Because of Froom's persistent refusal to submit
to this court's criminal jurisdiction, the Government cross-moves
to dismiss his claim, citing the fugitive disentitlement
provisions of the Civil Asset Forfeiture Reform Act of 2000.
II. FROOM'S RIGHT TO MAKE A CLAIM TO DEFENDANT PROPERTY
The federal civil forfeiture statute subjects property involved
in a transaction in violation of 18 U.S.C. § 1956 or § 1957 to forfeiture. 18 U.S.C. § 981 (2000). Section 1956,
commonly known as the "money laundering statute," outlaws
financial transactions involving the proceeds of unlawful
activity. Section 1957 imposes a criminal penalty on anyone who
"knowingly engages in or attempts to engage in a monetary
transaction in criminally derived property that is of a value
greater than $10,000 and is derived from specified [criminal]
A claimant to the property who is also a defendant in a related
criminal action may ordinarily contest forfeiture. See United
States v. Contents of Account No. 68108021, 228 F. Supp. 2d 436,
444 (S.D.N.Y. 2002) (Sprizzo, J.). However, a criminal defendant
may not use the resources of a federal court for personal benefit
while knowingly evading the jurisdiction of the same court so as
to avoid prosecution. Courts have express statutory authority to
dismiss civil forfeiture claims related to criminal cases when
the claimant is a fugitive from justice. 28 U.S.C. § 2466 (2000);
Collazos v. United States, 368 F.3d 190 (2d Cir. 2004). A
defendant is a fugitive from justice when he "actively resists
returning from abroad to face [criminal] charges." United States v. Eng, 951 F.2d 461, 464 (2d Cir.
1991) abrogated on other grounds by Degen v. United
States, 517 U.S. 820 (1996).
Section 2466 was enacted as part of a comprehensive revision of
the federal civil forfeiture laws known as the Civil Asset
Forfeiture Reform Act of 2000. ("CAFRA".) It sets out the
prerequisites to fugitive disentitlement:
(a) A judicial officer may disallow a person from
using the resources of the courts of the United
States in furtherance of a claim in any related civil
forfeiture action . . . upon a finding that such
person: (1) after notice or knowledge of the fact
that a warrant or process has been issued for his
apprehension, in order to avoid criminal
prosecution. . . . (B) declines to enter or reenter
the United States to submit to its jurisdiction. . . .
and (2) is not confined or held in custody in any
other jurisdiction for commission of criminal conduct
in that jurisdiction.
Pub.L. No. 106-185, § 14, 114 Stat. 202, 219 (2000), codified at
28 U.S.C. § 2466. Once the requirements of the statute are met,
"the ultimate decision whether to order disentitlement in a
particular case rests in the sound discretion of the district
court." Collazos, 368 F.3d at 198.
The prerequisites to invoking CAFRA to dismiss Froom's claim to
defendant property are met in this case. First, a warrant was
issued for Froom's arrest. Arrest Warrant, United States v.
Lafontaine, No. 98-MJ-0044, February 27, 1998. Second, Froom had
notice that he is named as a defendant in pending criminal
charges and he actively resisted being extradited to face them. Finally, Froom is not in custody in Canada for having committed a
crime in that jurisdiction.
Froom has provided an affidavit from a Canadian attorney that
states that he is bound by the conditions of his release on bond
not to leave the province of Ontario, Canada. Galati Aff. App. to
Claimant's Br. in Supp. of Mot. for Summ. J., Ex. 12. However, it
is clear from that affidavit that Froom is free to leave Canada
without penalty. In doing so he would merely forfeit his right to
contest his extradition. United States v. Lafontaine, No. 98
Cr. 251, 2000 U.S. Dist. LEXIS 9199 (S.D.N.Y. July 5, 2000)
(Mukasey, J.). The Canadian authorities arrested Froom in order
to expel him from the country, and not because he committed an
offense within their jurisdiction. Therefore, the conditions of
his release on bond do not preclude the court from subjecting
Froom to fugitive disentitlement under CAFRA. See United
States v. $1,231,349.68 in Funds, 227 F. Supp. 2d 130, 132-33
(D.D.C. 2001); Collazos, 368 F.3d at 201.
As a fugitive from justice, Froom "has demonstrated such
disrespect for the legal processes that he has no right to call
upon the court to adjudicate his claim." Ortega-Rodriguez v.
United States, 507 U.S. 234, 246 (1993), quoting Ali v.
Sims, 788 F.2d 954, 959 (3d Cir. 1986). Froom may not use the
court's resources to pursue a civil forfeiture claim while
simultaneously evading our criminal jurisdiction.*fn5 Therefore, to protect
the integrity of the judicial ...