Case 7:14-cv-00942 Document 29 Filed in TXSD on 09/23/15 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS
McALLEN DIVISION
UNITED STATES OF AMERICA
Plaintiff,

v.

ALL FUNDS ON DEPOSIT AT SUN

SECURED ADVANTAGE,

ACCT. NUMBER*3748 HELD AT THE

BANK OF NT BUTTERFIELD &

SON LTD. IN BERMUDA

and

57 CREEKBEND DRIVE

BROWNSVILLE, TEXAS 78521

Defendants,

CIVIL ACTION NO. M-14-CV-942

UNITED STATES OF AMERICAS MOTION FOR FINDING OF

FUGITIVE DISENTITLEMENT AS TO ERICK AUGUSTINE SILVA
AND TO STRIKE CLAIM
COMES NOW, the United States of America, through Kenneth Magidson, United States
Attorney and Mary Ellen Smyth and Jesse Salazar, Assistant United States Attorneys for the
Southern District of Texas, and files its Motion for Finding of Fugitive Disentitlement as to Erick
Augustin Silva and to Strike Claim (hereinafter Motion for Fugitive Disentitlement), pursuant
to 28 U.S.C. 2466, and would respectfully show the Court as follows:
I.
Procedural history:
On July 29, 2014, Erick Augustine Silva (hereinafter Silva) was indicted by a federal
grand jury in Criminal Case No. M-14-CR-1122, and his case remains pending before the United
States District Court Judge Micaela Alvarez. The indictment charges Silva with violations of 18

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U.S.C. 1956(h), 1344, 1341, and 1343. The facts and circumstances of the Silva indictment
are the same facts and circumstances which form the basis of the instant civil forfeiture action.
Although no formal appearance has been made, Attorney Robert Joseph Izaguirre represents
Silva in his pending criminal case and has been in regular communication with Assistant United
States Attorney Jesse Salazar.
On November 10, 2014, the Government filed a Verified Complaint for Forfeiture in Rem
against All Funds on Deposit at Sun Secured Advantage Acct. *3748 at the Bank of NT
Butterfield & Son LTD Bermuda and real property and improvements identified as 57
Creekbend, Brownsville, Texas (hereinafter referred to as Defendant Property). 1 (D.E. #1). In
the Complaint, the Government alleges that the Defendant Property is subject to forfeiture
pursuant to:
(a) 18 U.S.C. 981(a)(1)(A), which provides for the forfeiture of personal
property involved in a transaction or attempted transaction in violation of 18 U.S.C. 1956 and
1957, and any property traceable to such property;
(b) 18 U.S.C. 981(a)(1)(B), which provides for the forfeiture of real and
personal property located in the United States constituting, derived from, or traceable to, any
proceeds obtained directly or indirectly from an offense against a foreign nation, and property
that is used to facilitate such offense (i) if the offense involves conduct defined as a specified
unlawful activity in 18 U.S.C. 1956(c)(7)(B); and (ii) the offense would be punishable by
imprisonment for more than one year (a) within the jurisdiction of the foreign nation and (b)
under the laws of the United States of the United States if the act or activity constituting the
offense had occurred within the jurisdiction of the United States; and/or
1

The Silva indictment includes a notice of forfeiture that lists the same property as subject to criminal
forfeiture.

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(c) 18 U.S.C. 981(a)(1)(C) which provides for the forfeiture of any property,
real or personal, which constitutes or is derived from proceeds traceable to specified unlawful
activity, or a conspiracy to commit such offense.
Also on November 10, 2014, the United States issued a press release announcing the
indictment of Erick Augustin Silva, the former mayor of Matamoros, Tamaulipas, Mexico. See
http://www.justice.gov/usao/txs/. A copy of that press release is attached hereto and incorporated
by reference as Exhibit A. The press release details the charges in the federal indictment and
states that the warrant for his arrest remains outstanding. Silva remains a fugitive living in
Mexico.
On January 16, 2015, Erick Augustin Silva and his common-law wife, Maria Castaneda
Torres, filed claims and answers to the civil forfeiture complaint by and through their civil
attorney, Benigno (Trey) Martinez. (D. E. #s 10-14). Both Silva and Castaneda Torres filed
claim to the real property, but only Erick Silva filed a claim as to the money. 2
On February 12th and April 28, 2015, the Court granted Agreed Motions to Stay civil
proceedings pending a resolution of the parallel criminal prosecution. (D.E # 16).
On July 9th, 2015, the undersigned Assistant United States Attorneys and counsel for
Claimants appeared in court for a pretrial and scheduling conference. The Court addressed
counsel about the status of the case and was advised that the parallel criminal case wherein Silva
was indicted one year earlier was unresolved and Silva remained a fugitive. (D. Minute E.
7/09/2015). Thereafter, the Court issued a scheduling Order. (D.E. # 26).
Claimants have filed a Motion to Strike the Pleadings (D.E. # 27) and delivered their
joint discovery requests to Plaintiff.
2

Therefore, the effect of a finding of fugitive disentitlement against Silva would be that there are no
claims remaining as to the money; and that the wife has a claim only to her own interest in the real
property (not Silvas).

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II.
Background:
On November 21, 2014 and following the press release issued by the United States,
Claimant Erick Silva was interviewed about his pending federal indictment by Breitbart Texas
journalist Ildefonso Ortiz. The interview occurred in Matamoros, Tamaulipas, Mexico. The
written article summarizing the interview is attached hereto as Exhibit B but can be viewed
live at www.breitbart.com/texas/2014/11/21/fugitive-mexican-mayor-us-federal-agents-set-meup. Significantly, Silva was asked during the interview whether he planned on turning himself in
to U.S. authorities and facing criminal charges; and rather than respond in the affirmative, Silva
replied that his lawyers were looking into the case.
Since the November 2014 interview, Silvas criminal defense lawyer, Robert Joseph
Izaguirre, approached AUSA Salazar in an attempt to resolve the criminal case via video
teleconferencing or Skype with Silva remaining in Mexico. The United States refused this
suggestion and advised Silvas counsel that any communication with Silva would require his
presence in the United States. Silvas counsel also inquired whether an agreed upon bond
amount could be set prior to Silvas reentry into the United States. AUSA Salazar refused to
commit to an agreed bond and requested that Silva turn himself in before there could be any
negotiation. Most recently, on July 9, 2015, AUSA Salazar, civil attorney Benigno Trey
Martinez, and criminal attorney Robert Joseph Izaguirre conferred and Silvas attorneys again
sought to work out the criminal case but only under circumstances allowing Silva to remain in
Mexico.

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MEMORANDUM OF LAW
Fugitive disentitlement doctrine of 28 U.S.C. 2466:
The fugitive disentitlement doctrine has historically prohibited a fugitive from availing
himself of the resources of the court and was first applied by the Supreme Court in Molinaro v.
New Jersey, 396 U.S. 365 (1970) (per curiam). In Molinaro, the Supreme Court refused to
entertain an appeal on behalf of a convicted felon who had become a fugitive during the
pendency of his criminal appeal. Id. at 365. Molinaro represents the first application of what
was, at its outset, a judicially created doctrine, rather than a statute-based principle. After
Molinaro, federal courts gradually extended the doctrine to disentitle fugitives from participating
in civil proceedings related to their criminal cases. The doctrine is grounded on the impropriety
of permitting a fugitive to pursue a claim in federal court where he might accrue a benefit, while
at the same time avoiding an action of the same court that might sanction him. United States v.
$671,160.00 in U.S. Currency, 730 F.3d 105, 1058 (9th Cir. 2013)(citing United States v. Eng,
951 F.2d 461, 465 (2d Cir. 1991)).
In 2000, Congress codified the fugitive disentitlement doctrine as part of the Civil Asset
Forfeiture Reform Act (CAFRA) in 28 U.S.C. 2466. Under 2466, the court where a civil
forfeiture action is pending may disallow any challenge to the forfeiture if the Government
establishes five elements:
1) that a warrant or similar process has been issued for the claimants apprehension;
2) that the claimant has knowledge of the warrant;
3) that the warrant was issued in a criminal case that is related to the civil forfeiture case;
4) that the claimant is not being confined or held in custody overseas, such that he is
prevented from voluntarily surrendering on the criminal warrant; and
5) that the claimant deliberately avoided prosecution by leaving or declining to enter or
re-enter the U.S. or otherwise evading the jurisdiction of the court where the
5

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criminal case is pending.

See 28 U.S.C. 2466 (emphasis added); Collazos v. United Sates, 368 F.3d 190, 198 (2d Cir.
2004); United States v. $6,976,934.65 Plus Interest, 554 F.3d 123, 128 (D.C. Cir. 2009)(adopting
the five Collazos elements); United States v. Salti, 579 F.3d 656, 663(6th Cir. 2009)(adopting the
Collazos elements); United States v. All Funds on Deposit at Old Mutual of Bermuda LTD., 2014
WL 1758208 *4 (S.D.Tex. May 1, 2014)(discussing Collazos elements); United States v.
$1,278,795.00, 2006 WL 870364 *2 (S.D. Tex. March 30, 2006)(adopting Collazos elements).
Application of Section 2466 is a Threshold Issue:
Because the fugitive disentitlement doctrine goes to the right of the claimant to assert
any defense to the forfeiture action, a motion filed by the United States to strike the claim under
Section 2466, like a challenge to the claimants standing, must be addressed before the court
considers any motion filed by the claimant. Stefan D. Cassella, Asset Forfeiture Law in the
United States (2d Ed. 2013), 9-4 (2013) (citing $6,976,934.65, 478 F.Supp.2d 30, 45 (D.D.C.
2007) (holding that, because applying the fugitive disentitlement doctrine will bar a claimant
from contesting a forfeiture on any ground, the court must rule on the Governments Section
2466 motion before addressing any motion filed by the claimant); $6,976,934.65, 486 F.Supp.2d
37, 39 (D.D.C. 2007) (same case, denying motion for reconsideration on this issue, and holding
that the Governments motion under Section 2466 must take precedence over any threshold
motion that would favor the fugitive, including a motion to dismiss for improper venue), revd
on other grounds, 554 F.3d 123 (D.C. Cir. 2009); U.S. v. All Funds ... Held in the Name of Kobi
Alexander, 617 F. Supp. 2d 103, 126-127 (E.D.N.Y. 2007) (holding that, by maintaining his
fugitive status, claimant waived his right to challenge the forfeiture on Eighth Amendment
grounds and refusing to consider the underlying merits of the governments forfeiture case).

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Because fugitive disentitlement is a threshold issue, the court should resolve before reaching the
merits of the case or permitting the claimant to conduct discovery. $671,160.00, 730 F.3d at
1059 (once a court determines that the Fugitive Disentitlement Statute applies, a claimants
further defenses to the underlying criminal matter are irrelevant.).
Pursuant to the doctrine of fugitive disentitlement, until fugitives are willing to submit
their case for complete adjudication, win or lose, they are [disentitled] to call upon the resources
of the court for determination of [their] claims. Dawkins v. Mitchell, 437 F.2d 646, 648 (D.C.
C.1970) (quoting Molinaro, 396 U.S. at 366). The doctrines emphasis on the use of judicial
powers and the propriety of a partys attempt to invoke those powers is reminiscent of other
threshold inquiries. It bars a claimant from invoking judicial process and waives all of his
defenses, such that if disentitlement applies, the case will be, by operation of the fugitive from
justice doctrine, essentially an uncontested action. United States v. 7707 S.W. 74th Lane, 868
F.2d 1214, 1217(11th Cir. 1989). Disentitlement is thus a threshold issue.
28 U.S.C. 2466 Five Factor Application and Analysis:
Since its enactment, courts have considered motions to strike under the fugitive
disentitlement statute as motions to dismiss the claim where courts can consider matters outside
the pleadings or as a motion for summary judgment when it is appropriate to do so. United
States v. All Assets Listed in Attachment A, ---F. Supp. 3d---, 2015 WL 867096 *7 (E.D. Va. Feb.
27, 2015); United States v. $671,160.00 in U.S. Currency, 730 F. 3d 1051,1055 (9th Cir. 2013);
United States v. $6,976,934.65 Plus Interest, 478 F. Supp.2d 30, 39,45-46 (D.C.C. March 21,
2007); United States v. $1,278,795.00 U.S. Currency, 2006 WL 870364 *2 (S.D. Tex. March 30,
2006); United States v. One 1988 Chevrolet Cheyenne Half-Ton Pickup Truck, 357 F. Supp. 2d
1321 (S.D. Ala. 2005).

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Courts consider the totality of the circumstances in determining fugitive status. See,
e.g., United States v. $6,976,934.65, 478 F. Supp.2d 30, 41 (D.D.C. 2007). In this case, the
totality of the circumstances establish that each element of 28 U.S.C. '2466 is satisfied. First, it
is undisputed that a warrant was issued for Silva as a result of his indictment in M-14-1122.
Indeed, a press release was issued by the United States Attorneys Office for the Southern
District of Texas announcing the indictment and its contents. (Mot. Exhibit A). Moreover, the
media interview granted by Silva to journalist Ildefonso Ortiz establishes the second element that
Silva was aware of both his pending criminal indictment and the warrant of arrest. Notably,
Silvas attorney did not dispute the existence of the parallel criminal proceeding or Silvas
criminal fugitive status at the July 9th scheduling conference. This court may attribute
knowledge to a claimant when that claimants attorney has knowledge that he is subject to arrest.
One 1988 Chevrolet Cheyenne, 357 F.Supp. 2d at 1327.
The third element is established by a clear reading of the indictment in M-14-1122 and
the forfeiture complaint filed herein. The factual allegations recited in the complaint track the
statutory criminal violations, and the property noticed for criminal forfeiture is the same
Defendant property that is the res in this forfeiture action. Attached hereto as Motion Exhibit
C is the affidavit of HSI Special Agent John Lyons, who states he is the criminal case agent in
M-14-CR-1122 and knows that the property identified for criminal forfeiture is the same
property involved in this civil forfeiture action.
Fourth, Silva is not in custody in another jurisdiction. During his press conference, Silva
was located at a hotel in Matamoros and dressed in a suit, not jail garb. He spoke to the media of
running for Congress in Mexico and gave no indication that he would be required to run his
campaign from a Mexican jail cell. Special Agent Lyons further stated that he knows Silva is not

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incarcerated in another jurisdiction. Furthermore, Silvas attorneys have suggested that Silva
appear via video teleconference not because Silva was incarcerated in Mexico but rather because
Silva would not subject himself to the jurisdiction of the United States.
Fifth, and finally, Silva remains in Mexico and is purposefully evading the jurisdiction of
this Court by declining to re-enter the United States. Prior to his indictment, Silva crossed into
the United States from Mexico twenty-nine (29) times between January 2014 and the first part of
July 2014. After his indictment in July 2014, Erick Silva has not crossed into the United States
even once, although he has a family residence in Brownsville, Texas.

It has been ten months

since the interview and more than a year since his indictment, yet Silva still has not re-entered
the United States to answer the federal criminal charges pending against him. His attorneys have
been repeatedly told by AUSA Salazar that any negotiations or setting of bond would not occur
until Silva has turned himself in to the U.S. authorities. During the July 9, 2015 scheduling
conference before the Court, AUSA Salazar advised the Court that Silva remained a fugitive in
the parallel criminal case. Claimants attorney did not dispute the governments representation
to the Court.
Finally, and as further evidence that Silva purposefully remains a fugitive, the Defendant
real property located at 57 Creedbend Drive in Brownsville, Texas is no longer occupied by
Silva or his immediate family and most of the furnishings have been removed. See Lyons Aff.
8. The Second Circuit has held the fifth element of the fugitive disentitlement doctrine satisfied
on analogous facts. See, United States v. Technodyne LLC, 753 F.3d 368, 386-87 (2d Cir. 2014)
(listing circumstantial evidence supporting finding that defendants refused to reenter the U.S. to
avoid prosecution, including moving assets, not cooperating with the investigation, and
attempting to negotiate pre-trial release if they returned).

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III.
Accordingly, the United States moves for a finding that the 28 U.S.C. 2466 fugitive
disentitlement factors have been met as to Silva so that he is disentitled from participation in this
civil forfeiture case. Silva is unwilling to submit to the jurisdiction of the United States to
answer the criminal charges pending against him in the related criminal proceeding in M-14-CR1122. The United States moves to dismiss the claim of Silva on the grounds that, as a fugitive,
Silva is not entitled to contest the forfeiture of Defendant Property in this proceeding.
WHEREFORE, for the reasons stated above, the United States respectfully requests that
the Court grant the United States of America's Motion for Application and Finding of Fugitive
Disentitlement as to Erik Augustin Silva and to Strike Claim, pursuant to 28 U. S. C. 2466. A
proposed form of order is attached for the Courts consideration.
Respectfully submitted,
KENNETH MAGIDSON
UNITED STATES ATTORNEY
By:

10

s/ Mary Ellen Smyth

MARY ELLEN SMYTH
Assistant United States Attorney
Federal I.D. No. 31348
Texas Bar I.D. No. 18779100
11204 McPherson, Suite 100A
Laredo, Texas 78405
(956) 721-4964

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CERTIFICATE OF SERVICE
On this the 23rd day of September, 2015 the foregoing Motion For Finding of Fugitive
Disentitlement and Strike Claim of Claimant Erick Silva was sent to his attorney of record,
Benigno Trey Martinez via USPS certified mail return receipt requested and electronic case
filing (ECF).

s/ Mary Ellen Smyth

Mary Ellen Smyth
Assistant United States Attorney

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