U.S. v. One Parcel of Real Property Described as Lot 41, Berryhill Farm Estates

• Decision Date: 29 October 1997
• Docket Number: 94-3346,94-3349,94-3348,Nos. 94-3326,94-3347,s. 94-3326
• Citation: 128 F.3d 1386
• Parties: 97 CJ C.A.R. 2612 UNITED STATES of America, Plaintiff-Appellee, v. ONE PARCEL OF REAL PROPERTY DESCRIBED AS LOT 41, BERRYHILL FARM ESTATES, etc., Defendant. Tommy Lee Dunmore, Claimant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1386

128 F.3d 1386

97 CJ C.A.R. 2612

UNITED STATES of America, Plaintiff-Appellee, v. ONE PARCEL OF REAL PROPERTY DESCRIBED AS LOT 41, BERRYHILL

FARM ESTATES, etc., Defendant.

Tommy Lee Dunmore, Claimant-Appellant.

Nos. 94-3326, 94-3346, 94-3347, 94-3348, 94-3349.

United States Court of Appeals, Tenth Circuit.

Oct. 29, 1997.

Frances Reddis, Assistant United States Attorney (Jackie N. Williams, United States Attorney, with her on the brief), United States Attorney's Office, Kansas City, KS, for Plaintiff-Appellee.

Elizabeth A. Phelan of Holland & Hart, LLP, Denver, CO, (Carlos A. Samour, of Holland & Hart, LLP, Denver, CO, with her on the brief), for Claimant-Appellant.

Before ANDERSON, LUCERO and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

Tommy Lee Dunmore appeals the district court's entry of summary judgment, forfeiting Dunmore's personal property to the United States pursuant to 21 U.S.C. § 881(a)(6). Dunmore contends the district court's grant of summary judgment is subject to reversal on any of the following grounds: (1) the forfeiture violated the Fifth Amendment's Double Jeopardy Clause; (2) the seizure of his real and personal property without pre-seizure notice and opportunity to be heard violated his right to due process; (3) the warrant for the arrest of personal property was a general warrant in violation of the Fourth Amendment; (4) the forfeiture of personal property was constitutionally excessive; and (5) the United States' conduct in prosecuting this civil forfeiture action was fundamentally unfair in violation of the Fifth Amendment's Due Process Clause. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and affirms.

II. BACKGROUND

The United States commenced this suit on March 28, 1989, by filing a Complaint for Forfeiture In Rem (the "Complaint"); Motion to Take Possession, Custody and Control of Defendant Property (the "Motion"); and an Affidavit of Kenneth Wissel, Special Agent, Internal Revenue Service, Criminal Investigation Division (the "Affidavit"). The Complaint sought in rem forfeiture of Dunmore's home and the personal property in the home.

In the Motion, the United States asked for an order permitting it to enter Dunmore's home, make an inventory of its contents, and take "full and exclusive possession, custody and control of the entire defendant real property ... and the contents thereof." In support thereof, the United States referenced its Complaint and submitted the Affidavit. The Affidavit stated that the FBI, the Kansas City, Missouri Police Department, and the Internal Revenue Service ("IRS") were conducting an investigation and suspected that Dunmore was involved in the purchase, sale, and distribution of cocaine. According to the United States, the house and personal property had been obtained with proceeds traceable to exchanges of controlled substances and were thus forfeitable under § 881(a)(6). ¹

After reviewing the Complaint and Affidavit, a magistrate judge found there was probable cause to believe the subject property constituted drug proceeds and directed the clerk to issue a warrant for the arrest of property. The magistrate did not give Dunmore notice and a hearing or require proof of exigent circumstances to justify suspending those procedures. The clerk issued the warrant on March 28, 1989; it was executed the next day. The United States filed a lis pendens against the house on March 28 and served public notice by publishing a copy of the notice in three Kansas newspapers and posting it at the house. That same day, the clerk issued summonses to Dunmore and World Savings and Loan Association ("World Savings"), the mortgagee of the real property, and each was properly served.

Dunmore filed an answer and claim of ownership of the real and personal property on April 7, 1989, requesting that the Complaint be dismissed and that the property be returned to him. On May 5, 1989, World Savings filed an answer and claim of ownership of the real property. No other claims of ownership were filed. Along with his answer, Dunmore filed a motion for disclosure of the Affidavit. In response, the United States asserted the Affidavit contained information pertaining to an ongoing criminal investigation of Dunmore and that its disclosure could jeopardize the investigation.

On April 21, 1989, Dunmore moved to stay this action. His motion stated that the United States had advised Dunmore's counsel that it was conducting a criminal investigation "arising out of and including his ownership and possession" of the real property. Dunmore asserted that as long as there was a threat of a federal criminal prosecution, participation in discovery in the civil forfeiture action might jeopardize his Fifth Amendment right against self-incrimination. The district court granted the stay on June 27, 1989, ordering the United States to notify the court when the investigation was completed.

In February 1990, while the stay was in effect, the United States filed a motion for interlocutory sale of the real property pursuant to Rule E(9)(b) of the Supplemental Rules for Certain Admiralty and Maritime Claims. ² The United States asserted that absent "great expense," the real property was subject to deterioration, decay, or injury during the pendency of the action and that an interlocutory sale was, therefore, in the best interest of the estate. ³ The United States served copies of its motion and supporting memorandum on Dunmore's counsel. Neither Dunmore's counsel nor Dunmore filed a response.

The court granted the motion for interlocutory sale on March 2, 1990, ordering the Marshal's Service to arrange for the sale of the real property and to seek the court's approval once a sales contract was obtained. The court further ordered that the net proceeds from the sale be used to pay World Savings' promissory note, the unpaid real estate taxes, and the costs the Marshal had incurred to maintain the property. The court directed the United States to deposit the remaining proceeds in the Marshal's Seized Asset Deposit Account pending the outcome of the action and to substitute the proceeds as the res instead of the real property.

The United States entered into a sales contract on June 25, 1990, and filed a motion for confirmation of the sale. World Savings did not object to the motion for confirmation. Dunmore, however, filed two pro se motions, seeking to quash the order for interlocutory sale and rental and to obtain return of the property. On August 27, after a hearing on the United States' motion for confirmation, the district court orally confirmed the interlocutory sale and approved the sales contract as proposed. The district court issued a written order of confirmation on September 21, 1990, and the real property was sold shortly thereafter. World Savings' claim was paid in full from the proceeds of the sale and was dismissed with prejudice.

On November 30, 1990, while the stay of this civil action remained in effect, the United States obtained an eight-count indictment against Dunmore in the Western District of Missouri. The indictment charged Dunmore with conspiracy and attempt to distribute cocaine, distribution of cocaine, income tax evasion, and money laundering. The charges were based on the same events that supported the finding of probable cause for the seizure of Dunmore's real and personal property in this civil case. The conspiracy count also alleged that Dunmore's home constituted or was derived from proceeds obtained as a result of the alleged conspiracy and was therefore subject to criminal forfeiture pursuant to 21 U.S.C.A. § 853(a)(1).

Dunmore's criminal trial was held in the Western District of Missouri. On June 11, 1991, a jury found Dunmore guilty on all counts of the indictment. By special verdict, the jury also found that the real property should be forfeited to the United States. Dunmore appealed his conviction to the United States Court of Appeals for the Eighth Circuit. While the appeal was pending, the Government obtained from the Western District of Missouri a preliminary judgment of forfeiture of the real property, satisfied the publication requirements of 21 U.S.C.A. § 853(n), and on February 13, 1992, obtained a final order of forfeiture. The Eighth Circuit affirmed Dunmore's conviction on June 30, 1992. See United States v. Dunmore, No. 91-2811, 1992 WL 144728 (8th Cir. June 30, 1992) (per curiam) (unpublished opinion).

Following Dunmore's conviction and sentencing in the criminal action, the United States resumed its prosecution of this civil action. On September 13, 1991, the United States moved to lift the stay and for partial summary judgment as to the personal property. ⁴ The court granted the motion for partial lift of stay but denied the motion for partial summary judgment in light of noncompliance with one of the court's local rules. The district court did, however, grant the United States leave to refile the motion.

In its motion for summary judgment, the United States sought "forfeiture of all the defendant property except the real property." The United States asserted that Dunmore's conspiracy conviction furnished probable cause to believe that the personal property constituted proceeds from that activity and that Dunmore was collaterally estopped from denying the actions of which he had been convicted. In the alternative, the United States asserted that the Affidavit and accompanying exhibits in the civil case and the testimony at the criminal trial established the requisite probable cause.

Dunmore filed a comprehensive response to the United States' motion for summary judgment. He argued, inter alia, that the search and seizure of the property violated the Fourth, Fifth, and Fourteenth Amendments and asserted that "no exigent circumstances" justified the search and seizure. Dunmore also asserted that without prior notice and hearing or, in the alternative, without a prompt post-deprivation...