802 F.2d 571 (1st Cir. 1986), 85-1704, Application of Kingsley

Docket Nº:85-1704, 85-1744.
Citation:802 F.2d 571
Party Name:In the Matter of the Application of Michael J. KINGSLEY for the Return of Seized Property, In re Michael J. Kingsley, Petitioner (Two Cases).
Case Date:September 30, 1986
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 571

802 F.2d 571 (1st Cir. 1986)

In the Matter of the Application of Michael J. KINGSLEY for

the Return of Seized Property,

In re Michael J. Kingsley, Petitioner (Two Cases).

Nos. 85-1704, 85-1744.

United States Court of Appeals, First Circuit

September 30, 1986

Argued Jan. 9, 1986.

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Linda J. Thompson with whom John M. Thompson, Springfield, Mass., was on brief, for petitioner.

Henry L. Rigali, Asst. U.S. Atty., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for U.S.

Before COFFIN, BOWNES and TORRUELLA, Circuit Judges.

BOWNES, Circuit Judge.

This case arose when the federal Drug Enforcement Administration (DEA) seized virtually all the known property of appellant Michael J. Kingsley (Kingsley) prior to instituting a civil forfeiture action. A detailed statement of the background and proceedings below is necessary to understand the issues before us on this appeal.

Background and Proceedings Below

On May 3, 1985, a DEA agent presented a sworn affidavit to the United States Magistrate in Springfield, Massachusetts, stating on information and belief that Kingsley was a cocaine dealer whose only income for the preceding ten years was from illegal drug sales. The agent requested that a warrant be issued for a civil forfeiture seizure under 21 U.S.C. Sec. 881(a)(6) (1982), which provides in pertinent part:

(a) The following shall be subject to forfeiture to the United States and no property right shall exist in them:


(6) All moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this subchapter, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this subchapter.... [Emphasis added.]

The magistrate found the affidavit established probable cause that all of Kingsley's possessions were purchased with the proceeds of illegal drug sales and issued individual seizure warrants for Kingsley's house, its contents, his girl friend's car, her diamond ring, and several bank accounts. The DEA then seized all the property except the ring, which it was unable to locate. Pursuant to additional warrants, the DEA seized Kingsley's investment accounts on May 6 and had them converted to cash, and on May 17 it seized a New York bank account. In the words of the magistrate:

It would not be an exaggeration to say that, as a result of the seizures authorized by this court, Kingsley has lost everything. His domicile has been seized and all of his most intimate possessions meticulously examined and inventoried by the Government.

The magistrate also granted the DEA's motion to impound the affidavits filed to support its warrant applications, based on the DEA's contention that

disclosure of the contents of the affidavit would jeopardize the government's long-term investigation into illegal narcotics activity of individuals mentioned therein. In addition, disclosure would reveal the identities of government witnesses, thereby subjecting them to the risk of harm.

Neither criminal charges nor a civil forfeiture complaint had been filed at this time.

On May 6 and May 20, the DEA permitted Kingsley to enter the house and remove pets, some clothing, personal hygiene items and food. On May 8 Kingsley moved to dissolve the order impounding the affidavits, arguing that he could not challenge the legality of the seizure without examining the government's affidavits, and that the seizures were unlawful because he had

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no forum in which to challenge their validity.

In the meantime Kingsley sought to determine directly from the DEA and the United States Attorney whether administrative or judicial forfeiture proceedings would be initiated. The government took the position that under 19 U.S.C. Secs. 1602-18 (Supp. II 1984) it first had to conduct an inventory, which took more than a week, and then it had to appraise the property seized. 19 U.S.C. Sec. 1606. If the house and each article of property were valued at less than $100,000 the government would then proceed under administrative forfeiture proceedings, and if any was valued at more than $100,000 it would proceed under judicial forfeiture proceedings as to that article of property. 19 U.S.C. Secs. 1607, 1610. If administrative forfeiture proceedings were begun, then Kingsley could file a cost bond, which would not be more than $2,500 for each article, and the government would then be forced to initiate civil forfeiture actions in district court. 19 U.S.C. Sec. 1608. Kingsley asserts he attempted to tender the maximum cost bond in order to avoid the need to appraise the property, and to get the proceedings into court immediately so a challenge to the seizures could be made, but the government refused to accept it until the appraisal was made.

At the May 14 hearing on Kingsley's motion before the magistrate to dissolve the impoundment order, the government argued that Kingsley had no right to any process at all before formal forfeiture proceedings were begun. It maintained that until some type of forfeiture proceeding was initiated Kingsley had no standing even to come before the magistrate to challenge the impoundment order. The government also asserted that it could have seized Kingsley's property without a warrant under 21 U.S.C. Sec. 881(b)(4) (Supp. II 1984), and that, therefore, the validity of the impoundment of its affidavits used to procure the warrants was not an issue.

Kingsley's motion to dissolve the impoundment order was denied by the magistrate on May 23. The magistrate ruled inter alia that he had jurisdiction over the motion and that, even though the DEA had seized some articles under the all-inclusive warrants that would not be forfeitable under 21 U.S.C. Sec. 881(a)(6), 1 this could be corrected by postseizure proceedings. The magistrate also held that, although the constitutionality of the seizure was a serious issue, it was not relevant to the validity of the impoundment order. On the impoundment issue, the magistrate held that the government's interest in protecting its criminal investigation outweighed Kingsley's right to see the affidavits. The magistrate noted that Kingsley could challenge the seizure by putting forward evidence of the source of the funds used to purchase the seized property whether or not he knew what representations were made in the government's affidavits.

Notice of the government's appraisal of the house and initiation of administrative forfeiture was not sent until May 22; the notice was sent to the address of the seized house, and Kingsley claims he did not receive it for some time. On May 31, the government obtained warrants to search the seized property. Another impounded affidavit was the basis of its showing of probable cause.

On June 4, Kingsley filed a motion in the district court under Rule 41(e) of the Federal Rules of Criminal Procedure, seeking return of his property, claiming it was unlawfully seized. Kingsley asserted various constitutional challenges to the government's actions. First, he challenged the use of 21 U.S.C. Sec. 881(a)(6) in rem forfeiture proceedings on the ground that the forfeitability of his property as the "proceeds" of illegal drug transactions was determined by his probable guilt as a drug dealer rather than on any direct evidence of alleged unlawful procurement of the property. Second, he asserted violations of the fourth amendment, including a lack of particularity

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in the seizure warrants, probable cause to issue them, unreasonable and unauthorized execution of the warrants, and violation of his right to privacy. Third, he asserted a violation of his fifth amendment right to due process because all his property had been taken without a preseizure or prompt postseizure hearing. He also asserted that 21 U.S.C. Sec. 881 was unconstitutional because the government was in fact punishing him for a crime without a grand jury indictment and the due process protections required by the fifth amendment. The impoundment of the government's affidavits also was asserted as a due process violation since he could not effectively challenge the magistrate's findings. Fourth, Kingsley asserted that as to any property acquired before the enactment of 21 U.S.C. Sec. 881(a)(6) in 1978, and as to property worth more than $10,000 acquired before 19 U.S.C. Secs. 1607-08 was amended to permit administrative rather than judicial forfeiture of property worth less than $100,000, the seizures amounted to an ex post facto penalty. Finally, Kingsley claimed he was being subjected to cruel and unusual punishment in violation of the eighth amendment. An expedited hearing and disclosure of the affidavits was requested on Kingsley's motion. The district court did not immediately respond.

On June 12, Kingsley moved for the preliminary injunction seeking immediate possession and use of his personal property and residence pending resolution of his Rule 41(e) motion, and asking that the government be enjoined from removing, searching, or disposing of any of his property. In the motion Kingsley agreed to an order restraining him from disposing of the property if possession was restored to him, and agreed to give additional security required by the court.

On June 20, the United States Attorney's office filed seven separate in rem forfeiture complaints against Kingsley's properties. 2 The next day, June 21, a hearing was held on Kingsley's preliminary injunction motion, by which date Kingsley had been excluded from his home and deprived of his personal property and financial resources for almost fifty days.

The district court issued a memorandum and order on July 12...

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