     Case: 16-40298   Document: 00513702063        Page: 1   Date Filed: 10/03/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals

                                    No. 16-40298
                                                                            Fifth Circuit

                                                                          FILED
                                                                    October 3, 2016

UNITED STATES OF AMERICA,                                            Lyle W. Cayce
                                                                          Clerk
             Plaintiff - Appellee

v.

2005 PILATUS AIRCRAFT, BEARING TAIL NO. N679PE

             Defendant

PABLO ZARATE JUAREZ; VIZA CONSTRUCTION, L.L.C.; PREMIER
INTERNATIONAL HOLDINGS, LIMITED,

             Claimants - Appellants



                Appeals from the United States District Court
                     for the Southern District of Texas


Before REAVLEY, DAVIS, and JONES, Circuit Judges.
REAVLEY, Circuit Judge:
      This appeal follows a criminal investigation which resulted in the United
States Government seizing a 2005 Pilatus Aircraft, Bearing Tail No. N679PE,
and instituting a civil forfeiture proceeding against the plane. Subsequently,
Pablo Zarate Juarez (“Zarate”), a Mexican citizen, claimed an interest in the
aircraft, individually and on behalf of Viza Construction, L.L.C. and Premier
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International Holdings, Limited, (collectively “Claimants”) 1. Zarate, while in
Mexico, was indicted on money laundering conspiracy and bank fraud charges
related to the civil forfeiture of the aircraft. The Government moved, against
Claimants’ opposition, to dismiss the claims to the aircraft under the Fugitive
Disentitlement statute, 28 U.S.C. § 2466, which prevents a claimant who is a
fugitive from justice from contesting the civil forfeiture. The district court
dismissed the claims under § 2466 and denied Claimants’ motion to stay the
civil proceedings. We affirm.
                                             I.
       The “fugitive disentitlement doctrine,” dating back to the late 19th
century, authorized “an appellate court to dismiss an appeal or writ in a
criminal matter when the party seeking relief becomes a fugitive.” United
States v. Degen, 517 U.S. 820, 823, 116 S. Ct. 1777, 1780 (1996) (Citing Ortega–
Rodriguez v. United States, 507 U.S. 234, 239, 113 S. Ct. 1199, 1203, (1993);
and Smith v. United States, 94 U.S. 97, 24 (1876). An issue existed as to
whether this disentitlement applied to civil forfeiture cases until Congress
resolved the issue by enacting 28 U.S.C. § 2466, which provides that:
               (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 or a claim in third party
       proceedings in any related criminal 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--
               (A) purposely leaves the jurisdiction of the United States;
               (B) declines to enter or reenter the United States to submit
       to its jurisdiction; or
               (C) otherwise evades the jurisdiction of the court in which a
       criminal case is pending against the person; and

       1Zarate ultimately withdrew his individual claim after the district court ordered him
to personally appear for deposition.
                                             2
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                                       No. 16-40298
             (2) is not confined or held in custody in any other jurisdiction
       for commission of criminal conduct in that jurisdiction.
             (b) Subsection (a) may be applied to a claim filed by a
       corporation if any majority shareholder, or individual filing the
       claim on behalf of the corporation is a person to whom subsection
       (a) applies.

28 U.S.C. § 2466. Our issue is whether the Government proved that Zarate
declined to enter/reenter the United States to submit to its jurisdiction, or
otherwise evaded the criminal court’s jurisdiction.
                                             II.
       Claimants argue on appeal that: (1) the Government did not prove Zarate
remained outside the United States to intentionally avoid criminal
prosecution; (2) Zarate’s due process rights were violated; and (3) the district
court abused its discretion by dismissing the claims instead of granting a stay.
       A.     Zarate remained outside United States to deliberately escape
              prosecution
       The Government demonstrates the court’s findings in United States v.
$671,160.00 in U.S. Currency, 730 F.3d 1051, 1057 (9th Cir. 2013) to be
consistent with the instant case in finding that a totality of the circumstances
showed that Zarate deliberately remained away from the United States to
avoid criminal prosecution. We agree. 2 Zarate had previously visited the
United States approximately 100 times in less than three years prior to the
seizure of the aircraft. The record also established that Zarate has family
residing in this country, as well as significant business interests here. Yet, he




       2 The same is true here as the court said there: “There is no dispute that Ionita knows
full well that he is wanted by the State of California. Ionita’s attempt to reclaim the
defendant funds by litigating the civil forfeiture claim while avoiding answering the criminal
charge is precisely the situation that the Fugitive Disentitlement Statute was enacted to
address.” Id. at 1056.

                                              3
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                                       No. 16-40298
chose not to return to the United States after the seizure of the plane in June
2012.
        B.    Application of fugitive disentitlement does not violate Claimants’
              due process rights
        Claimants next contend that Zarate’s choice of whether or not to enter
the United States to fight the civil forfeiture of the plane or to face criminal
prosecution was a violation of his due process rights, specifically his rights
under the Mexico-United States extradition treaty. For support, Claimants
cite the Supreme Court’s decision in Simmons v. United States, 390 U.S. 377
(1968), wherein the Court found it “intolerable that one constitutional right
should have to be surrendered in order to assert another” when a criminal
defendant was faced with giving up his Fourth Amendment rights or Fifth
Amendment privilege against self-incrimination. Zarate has no rights to claim
because of that treaty. The United States does not seek to extradite, and a
right to be heard is waived by not seeking it. See U.S. v. Batato, ___ F.3d ___,
No. 15-1360, 2016 WL 4254916 (4th Cir. Aug. 12, 2016).
        C.    District court did not abuse its discretion in denying stay
        Finally, Claimants argue that the district court abused its discretion in
dismissing their claims instead of granting a stay of the civil forfeiture
proceeding. 3 We disagree. The district court denied the requested stay first
because Zarate is a fugitive from justice.               The district court also noted
Claimants’ inconsistent positions regarding the stay in the matter. The record
reveals      that     Claimants        repeatedly       opposed      the      Government’s



        328 U.S.C. 981(g)(2) provides that “Upon the motion of a claimant, the court shall stay
the civil forfeiture proceeding with respect to that claimant if the court determines that (A)
the claimant is the subject of a related criminal investigation or case; (B) the claimant has
standing to assert a claim in the civil forfeiture proceeding; and (C) continuation of the
forfeiture proceeding will burden the right of the claimant against self-incrimination in the
related investigation or case.”
                                              4
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motions/extensions for stay, did not oppose when the Government moved to lift
the stay, but then filed for a stay on their own behalf. Moreover, the district
court explained that Zarate failed to personally appear in any proceedings
related to the forfeiture action – only appearing telephonically in one hearing
– and has not answered discovery or provided otherwise meaningful
participation in the forfeiture action.
                                          III.
      Since the record supports a finding that Zarate remained outside the
United States to intentionally avoid criminal prosecution, the elements of
§ 2466 are met and the claims in opposition lack merit, the judgment is
affirmed.
      AFFIRMED.




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