Foreign Defendants Have No Due Process Right to Personally Attend a Civil Forfeiture Hearing, Holds Eleventh Circuit

In USA v. Approximately $281,110.00, No. 20-11107 (11th Cir. Oct. 13, 2021), the Eleventh Circuit affirms a civil forfeiture verdict where the jury rejected an innocent-owner defense for Chinese nationals who were barred from entering the country for trial. “The main issue on appeal is whether foreign nationals have a constitutional right to enter the United States to attend a civil forfeiture trial involving their property.”

The panel summarizes the proceedings: “Several Chinese nationals paid hundreds of thousands of dollars to an expansive, multinational criminal enterprise to obtain immigration visas based on non-existent employment at non-existent businesses. The United States brought an in rem action to forfeit money the Chinese nationals deposited in American bank accounts as part of the visa scam. Some of the Chinese nationals were unable to enter the United States to attend the trial, but they were represented by counsel throughout the proceedings. Five Chinese nationals who received unfavorable verdicts argue that their inability to attend trial violated the Due Process Clause of the Fifth Amendment.”

The Eleventh Circuit holds that there is no federal constitutional right to be physically present a civil trial. Because the Sixth Amendment—which guarantees the defendant’s right of attendance at a felony trial—does not apply to civil proceedings, the only source for such a right was Fifth Amendment due process. “Since the thirteenth century, civil litigants have relied on attorneys to represent them in court,” and “the presence of an attorney at a civil trial in the place of the litigant himself” is thus sufficient for due process.

“The Chinese nationals challenge the decision to deny them entry into the United States, but ‘the admission and exclusion of foreign nationals is a fundamental sovereign attribute exercised by the [g]overnment’s political departments largely immune from judicial control.’ Trump v. Hawaii, 138 S. Ct. 2392, 2418 (2018).” Moreover, “’[f]or more than a century,’ the Supreme Court has held that ‘foreign nationals seeking admission have no constitutional right to entry.’ Id. at 2418–19 . . . . Accepting the Chinese nationals’ argument that due process mandated their entry into the United States would require us to disobey these unequivocal and broad holding.”

The district court afforded the Chinese nationals due process. Each Chinese national was represented by an attorney throughout the civil-forfeiture proceedings, including at trial . . . . [I]t is of no moment that the Chinese nationals were unable to enter the United States or to attend trial in person.” Although they were not able to appear in person to present their innocent-owner defense, “the Federal Rules of Civil Procedure permit ‘testimony in open court by contemporaneous transmission from a different location’ when there is ‘good cause in compelling circumstances and with appropriate safeguards[.]’ Fed. R. Civ. P. 43(a).”

Once they were aware that they would not be allowed to enter the country, “they had nine months between the denials and the start of trial, the Chinese nationals made no apparent effort to ‘s[eek] other means to present their testimony’ at trial—even after the district court reminded them of the possibility of presenting evidence through ‘affidavits, or . . . video  conferencing.’ The Chinese nationals’ failure to testify in support of their innocent-owner defense is not attributable to their exclusion from the country and is not a violation of due process.”

“Finally, the Chinese nationals’ other efforts to establish that their absence harmed their defense are unconvincing. They complain that the government, in closing arguments, mentioned that ‘[f]or nine claimants, you heard no evidence [of innocent ownership].’ But the government’s point was that the nine Chinese nationals had offered no testimony, in any form, in support of their defense—not that some Chinese nationals were absent from the courtroom . . . . It is of little probative value that every Chinese national who attended and testified at trial received a favorable verdict—so did one of the absent Chinese nationals. And it is unsurprising that litigants who chose to present affirmative evidence to satisfy their burden of proof fared better than litigants who chose to offer no evidence.”

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