Unpublished Disposition, 889 F.2d 1097 (9th Cir. 1988)

MEMORANDUM^** 

Heaslip appeals the district court's order denying him additional time to file a claim to the subject property. For the reasons discussed below, we affirm.

Heaslip is a defendant in a criminal proceeding which is pending in the United States District Court for the Southern District of California. He was indicted along with seven co-conspirators for conspiracy to import marijuana with intent to distribute. Heaslip was arrested in Canada and proceedings to extradite him to the United States are currently pending in Canada. Heaslip also faces charges under Canadian law.

On October 1, 1987, the United States filed a complaint for forfeiture of a Florida condominium under 21 U.S.C. 881(a) (6), alleging that it was purchased with money derived form the sale of controlled substances. Prior to Heaslip's release on bond on December 24, 1987, Heaslip was served personally with a notice of forfeiture on November 24, 1987 by the Royal Canadian Mounted Police. Heaslip did not file a claim and answer in response to the notice of forfeiture, and on March 22, 1988, default judgment was entered by the district court. Heaslip requested the court to grant him an extension of time to file a claim under Admiralty Rule C(6). The district court denied his request, and Heaslip timely appeals.

* The district court found that Heaslip was a fugitive, thus barred from asserting any claim to the property which is subject to the forfeiture action. The court reached this decision after reviewing affidavits from the Assistant United States Attorney and the counsel for criminal prosecution section of the Toronto Regional Office of the Canadian Department of Justice. Relying upon these affidavits, the court held that Heaslip would not voluntarily return to the United States to face the pending narcotics charges and was opposing all efforts to extradite him to the United States. Given these circumstances, he was a fugitive from United States justice.

We review the district court's determination that Heaslip was a fugitive under the clearly erroneous standard. United States v. Gonsalves, 675 F.2d 1050, 1052 (9th Cir.), cert. denied, 459 U.S. 837 (1982); United States v. Ballesteros-Cordova, 586 F.2d 1321, 1324 (9th Cir. 1978).

18 U.S.C. § 3290 states that "no statute of limitations shall extend to any person fleeing from justice." We have noted that section 3290 requires the prosecution to prove that the accused concealed himself with the intent to avoid arrest or prosecution. However, to meet this burden prosecution need only prove that the defendant knew that he was wanted by the police and that he failed to submit to arrest. Gonsalves, 675 F.2d at 1052 (citing Ballesteros-Cordova, 586 F.2d at 1323). See United States v. Catino, 735 F.2d 718, 722 (2d Cir.), cert. denied, 459 U.S. 837 (1984) (defendant's resistance to extradition made him a person fleeing from justice).

Heaslip argues that the order barring him from leaving Canada prevents him from submitting to U.S. authorities. However, the affidavits of the Canadian officials demonstrate that they would allow him to return if Heaslip would consent. See United States v. $45,940 in United States Currency, 739 F.2d 792, 796 (2d Cir. 1984) (burden is on fugitive to seek permission to apply for admission to the United States to dispel fugitive status). The records and affidavits show that Heaslip is aware that he is wanted by the United States and is fighting extradition. Thus, we cannot say the district court was "clearly erroneous" in determining that Heaslip was a fugitive.

II

Heaslip next claims the district court did not correctly apply the "disentitlement doctrine." We review the district court's application of the disentitlement doctrine de novo. United States v. $47,980 of Currency, 804 F.2d 1085, 1088 (9th Cir. 1986), cert. denied, 481 U.S. 1072 (1987).

In Malanaro v. New Jersey, 396 U.S. 365 (1970), a person was not entitled to "call upon the resources of the court" for determination of his appeal of his conviction after feeling the country. Id. at 366. Heaslip claims that Malanaro should be interpreted to bar a fugitive from justice from using the courts only if they could not be made to respond to the judgment. Heaslip claims that because he can be made to fully comply, the district court denied him due process under the fifth amendment.

The Ninth Circuit, however, has interpreted Malanaro also to bar civil claims by fugitives. "The rule should apply with greater force in civil cases where an individual's liberty is not at stake." Conforte v. Commissioner, 692 F.2d 587, 589 (9th Cir. 1982), stay denied, 481 U.S. 1072 (1983). The "disentitlement doctrine" is applicable to civil forfeiture matters as well. In United States v. $129,374 of Currency, 769 F.2d 583 (9th Cir. 1985), cert. denied, 474 U.S. 1086 (1986), we concluded that a limited extension of the Malanero/Conforte disentitlement doctrine should bar intervention in a civil forfeiture proceeding by a fugitive's successor in interest. The court specifically noted that Conforte would have barred any claim by the deceased fugitive in the forfeiture action. 769 F.2d at 587. Heaslip similarly wishes to participate in a forfeiture proceeding while a fugitive from justice. Thus, under Ninth Circuit precedent, Heaslip's attack must fail.

III

Heaslip finally argues that the district court denied him due process when it did not allow him to file an extension under Admiralty Rule C(6) on the ground that he was a fugitive.

Admiralty rule C(6) provides, in pertinent part, as follows:

The claimant of property that is the subject of an action in rem shall file his claim within 10 days after process has been created ... and shall serve his answer 20 days after filing of the claim.

Because Heaslip did not file a claim or an answer within the allotted period, a default was entered by the district court. Fed. R. Civ. P. 55(a).

A district court has discretion to grant additional time "where the goals underlying the time restriction and verification are not thwarted." United States v. 1982 Yukon Delta Houseboat, 774 F.2d 1432, 1436 (9th Cir. 1985). Here, the district court found that Heaslip was barred under the Malanaro/Conforte disentitlement doctrine from pursuing his claim while a fugitive. A district court may abuse its discretion if it does not apply the correct law or if it rests its decision on a clearly erroneous finding of a material fact. Hunt v. National Broadcasting Co. Inc., 872 F.2d 289, 292 (9th Cir. 1989). As we agree with the district court, we accordingly find no abuse of discretion in not granting an extension to file a claim.

AFFIRMED.