774 F.2d 1432 (9th Cir. 1985), 84-1790, United States v. 1982 Yukon Delta Houseboat

Docket Nº:84-1790, 84-1843.
Citation:774 F.2d 1432
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. 1982 YUKON DELTA HOUSEBOAT, Vin # YDH33930781; 1982 Yukon Delta Houseboat, Vin # YDH3543XM82E-35; et al., Defendants, and Richard Dennis May, Linda Dianne Watson and Ray-May Corporation, Claimants-Appellees. UNITED STATES of America, Plaintiff-Appellee, v. A CONDOMINIUM LOCATED AT 3467 # D, NIGHTFLO
Case Date:October 25, 1985
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1432

774 F.2d 1432 (9th Cir. 1985)

UNITED STATES of America, Plaintiff-Appellant,

v.

1982 YUKON DELTA HOUSEBOAT, Vin # YDH33930781; 1982 Yukon

Delta Houseboat, Vin # YDH3543XM82E-35; et al., Defendants,

and

Richard Dennis May, Linda Dianne Watson and Ray-May

Corporation, Claimants-Appellees.

UNITED STATES of America, Plaintiff-Appellee,

v.

A CONDOMINIUM LOCATED AT 3467 # D, NIGHTFLOWER LANE, LAS

VEGAS, NV, Further Described As Unit # 68, Lot Q, Recorded

in Book 1463, # 1422453, in the Office of the County

Recorder, Clark County, Nevada, Defendant,

and

Richard Dennis May and Linda Dianne Watson, Claimants-Appellants.

Nos. 84-1790, 84-1843.

United States Court of Appeals, Ninth Circuit

October 25, 1985

Argued and Submitted Aug. 13, 1985.

Page 1433

Barry Lieberman, Asst. U.S. Atty., Las Vegas, Nev., for appellant.

Morgan C. Taylor, Felton, Cal., for appellee.

Appeal from the United States District Court for the District of Nevada.

Before DUNIWAY and CHOY, Senior Circuit Judges, and FARRIS, Circuit Judge.

OPINION

CHOY, Senior Circuit Judge:

In two separate suits, consolidated for this appeal, the United States government seeks forfeiture, under 21 U.S.C. Sec. 881(a)(6), of ten houseboats and a condominium it claims were bought with the money received from illegal controlled substance transactions. We reverse and remand as to each appeal.

In the suit for the houseboats, the government contends that convicted drug trafficker Ray Parker (a/k/a Richard Bostic and Steven Dubos) used such money to purchase the ten houseboats, but that he got claimant Richard Dennis May to front for him, designating May's company, Ray-May Corp. (d/b/a R & D Boat Sales), as the nominal owner of the houseboats.

Under 19 U.S.C. Sec. 1615, the burden of proof in this forfeiture proceeding is on the claimants (Richard Dennis May, his wife, and Ray-May Corp.), provided that the government first shows probable cause to institute the forfeiture action. The district court held that the government had failed to establish probable cause and ordered that the seized houseboats be returned to the claimants. The court also refused to issue a certificate of reasonable cause under 28 U.S.C. Sec. 2465. The government appeals.

In the separate suit for the condominium, the government alleged in its complaint, filed on May 26, 1982, that the claimants, Richard Dennis May and his wife, purchased the condominium with cash from illegal drug sales. An arrest warrant against the condominium was issued. The claimants were served with the warrant, the complaint, and a court order directing interested persons to file a verified claim to the condominium by August 9, 1982.

On June 16, 1982, the claimants filed an answer to the complaint, identifying themselves as owners of the condominium and admitting the government's allegation that they were the purchasers of the condominium. They did not, however, file a verified claim to the property. Rule C(6) of the Supplemental Rules for Certain Admiralty and Maritime Claims states that:

The claimant of property that is the subject of an action in rem shall file his claim within 10 days after process has been executed, or within such additional time as may be allowed by the court, and shall serve his answer within 20 days after the filing of the claim. The claim shall be verified on oath or solemn affirmation, and shall state the interest in the property by virtue of which the claimant demands its restitution and the right to defend the action.

Over a year later, after the parties had completed discovery and the case had been set for trial, the government realized that a verified claim had not been filed. The government's attorney advised the claimants to file a verified claim and agreed not to oppose the late filing. The district court, however, denied the claimants' application for permission to file a verified claim, stating that there is no provision in the law for extending the time for the filing of said claims. It further noted that the claimants had not shown excusable cause for leave to file their claims late because they had had adequate notice of the need to file a timely verified claim. Judgment was entered for the United States. Claimants' motion for a new trial was denied and they appeal.

ISSUES

1) Did the district court in the first suit err in finding that the government had not

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established probable cause for the forfeiture of the ten houseboats?

2) Did the district court in the second suit err in its decision rejecting the claimants' application for permission to file a verified claim?

Houseboats

We review a district court's probable cause determination in a forfeiture proceeding as a question of law. United States v. $93,685.61 In U.S. Currency, 730 F.2d 571, 572 (9th...

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