921 F.2d 370 (1st Cir. 1990), 89-2168, United States v. One Parcel of Real Property

Docket Nº:89-2168.
Citation:921 F.2d 370
Party Name:UNITED STATES of America, Plaintiff, Appellant, v. ONE PARCEL OF REAL PROPERTY, etc., Defendant. Humberto and Idacira Rua, Claimants, Appellees.
Case Date:December 20, 1990
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 370

921 F.2d 370 (1st Cir. 1990)

UNITED STATES of America, Plaintiff, Appellant,

v.

ONE PARCEL OF REAL PROPERTY, etc., Defendant.

Humberto and Idacira Rua, Claimants, Appellees.

No. 89-2168.

United States Court of Appeals, First Circuit

December 20, 1990

Heard April 3, 1990.

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Michael P. Iannotti, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief for the U.S.

Edward J. Romano with whom John F. Cicilline, Providence, R.I., was on brief, for defendant and claimants, appellees.

Before BREYER, Chief Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.

CYR, Circuit Judge.

The United States appeals from a judgment dismissing its in rem civil forfeiture complaint for lack of particularity. As the dismissal was at least premature, we vacate the judgment and remand for further proceedings.

I.

BACKGROUND

The affidavit attached to the complaint for forfeiture contained the following allegations. Humberto and Idacira Rua ("claimants") entered into a written agreement to purchase a single family residence at 6 Patricia Drive in North Providence, Rhode Island, in March 1986. In August the claimants executed an application for a $65,000 bank loan to fund a portion of the purchase price. Their son, Jaime Rua, was listed as the designated borrower. The bank issued a loan commitment in September and the real estate closing was held on October 3, 1986. Six days later, Jaime Rua sold four and one-half ounces of cocaine to

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undercover Providence Police Department Detective Henry Roy, in violation of 21 U.S.C. Sec. 841(a)(1). Jaime was convicted. During the course of the criminal proceedings, Jaime admitted that he had been distributing "ounces and eighths of a kilo of cocaine" since 1983 and that he had been selling "approximately two kilos of cocaine per week to various customers" during the two year period preceding his arrest on December 9, 1987.

The United States filed its first in rem civil forfeiture complaint against the defendant real property in March 1989, pursuant to 21 U.S.C. Sec. 881(a)(6) and (d) and Rule E(2)(a) of the Supplemental Rules for Certain Admiralty and Maritime Claims ("Supplemental Rules"). The complaint alleged that the defendant property, though purchased in claimants' names, "constitute[d] ... proceeds of illegal narcotics transactions" conducted by Jaime Rua. The initial complaint for forfeiture incorporated the first Roy affidavit, reciting the circumstances surrounding claimants' acquisition of title to the defendant real property, as well as Jaime's admissions concerning illicit drug activities. 1

The district court dismissed the first forfeiture complaint, as follows:

The net effect of ... facts and gaps in the government's pleading is to leave this Court unable reasonably to infer that the entire premises at 6 Patricia Drive is subject to forfeiture under section 881(a)(6). Rather the information presented supports the reasonable belief that some, if not all, of the interest in the property was derived from the Ruas earned income or savings. The bare fact that Jaime Rua might have received a large proportion of his income from cocaine sales during the period in which the house was purchased and being paid for does not lead inexorably to the inference that the particular monies that the Ruas used to pay for the property were derived from those sales and not from the Ruas' legitimate income, which the government admits the family earned for a combined total in excess of $37,000 per year.

Because the facts supplied in the government's complaint in this case are "not narrowly tailored to precisely identify the portion of the property the government can keep," as required by Pole No. 3172, Hopkinton, I find that this particular complaint is inadequate to meet Rule E(2) particularity requirements as to the whole property. As required by the First Circuit, this action is dismissed without prejudice for lack of particularity in the complaint. The government is, of course, free to initiate a new action if, upon further consideration, it thinks itself able to marshall the requisite facts sufficient to support a reasonable belief that the entire property is forfeitable.

United States v. One Parcel of Real Property Known as 6 Patricia Drive, 705 F.Supp. 710, 720-21 (D.R.I.1989).

On March 28, 1989, the government filed its second complaint for forfeiture, to which was attached a slightly more detailed affidavit by Detective Roy. 2 The claimants

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moved to dismiss the second complaint for failure to satisfy the particularity requirements of Supplemental Rule E(2)(a). The United States magistrate recommended dismissal.

Further information was added to the affidavit attached to the instant complaint but not enough to satisfy the particularity requirement. Given the fact that the instant complaint is substantially identical to the one dismissed by Judge Pettine, in conjunction with the fact that the government has failed to provide additional requisite facts sufficient to support a reasonable belief that the entire property is forfeitable, I find that the decision dismissing Civil Action No. 88-0444P is also dispositive of the instant complaint. Accordingly, the instant complaint likewise fails to meet the particularity requirement.

The government objected to the magistrate's recommendation. See 28 U.S.C. Sec. 636(b)(1); Fed.R.Civ.P. 72(b). The district court accepted the magistrate's recommendation, without further elaboration, and the second complaint for forfeiture was dismissed without prejudice. The government appealed.

II.

DISCUSSION

All property traceable as proceeds from an illegal exchange of controlled substances is forfeitable to the United States under 21 U.S.C. Sec. 881(a)(6). 3 The first procedural step in an in rem civil forfeiture proceeding is the government's request for a warrant to seize the defendant property under Supplemental Rule C(1)(b), as authorized by 21 U.S.C. Sec. 881(b). 4 The second step, and the one implicated on appeal, is the complaint for forfeiture under Supplemental Rule E(2)(a). The third and final predisposition step in a civil forfeiture proceeding under subsection 881(d) 5 is the forfeiture trial itself, at which the government bears the burden of producing enough evidence to "establish probable cause to believe that the defendant property constitutes the proceeds of drug trafficking." United States v. Parcels of Land, 903 F.2d 36, 38 (1st Cir.1990). 6

Civil in rem forfeiture complaints in drug cases are governed by Supplemental Rule E(2)(a), United States v. Pole No.

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3172, Hopkinton, 852 F.2d 636, 638 (1st Cir.1988), and must meet its particularity requirements.

In actions to which this rule is applicable the complaint shall state the circumstances from which the claim arises with such particularity that the defendant or claimant will be able, without moving for a more definite statement, to commence an investigation of the facts and to frame a responsive pleading.

Supplemental Rule E(2)(a).

The district court in the present case relied principally on language from our opinion in Pole No. 3172, Hopkinton, supra, as support for its determination that the allegations of the first forfeiture complaint lacked the requisite particularity. The district court quoted the statement in Pole No. 3172, Hopkinton that the...

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