State v. Bergstrom

• Decision Date: 23 February 2006
• Docket Number: No. 20050110.,20050110.
• Citation: 2006 ND 45,710 N.W.2d 407
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Zachary BERGSTROM, Defendant and Appellant.
• Court: North Dakota Supreme Court

710 N.W.2d 407

2006 ND 45

STATE of North Dakota, Plaintiff and Appellee v. Zachary BERGSTROM, Defendant and Appellant.

No. 20050110.

Supreme Court of North Dakota.

February 23, 2006.

COPYRIGHT MATERIAL OMITTED

Zachary Bergstrom, pro se, Federal Correctional Institution, Oxford, WI, defendant and appellant; submitted on briefs.

Cynthia M. Feland, Assistant State's Attorney, and Sara J. Gerhardt, third-year law student, Bismarck, N.D., for plaintiff and appellee; submitted on briefs.

SANDSTROM, Justice.

[¶ 1] Zachary Bergstrom appeals from the district court's amended order on his motion for return of property and the State's motion for forfeiture of evidence. He argues the property was not forfeitable, the district court's findings are contrary to this Court's decision in State v. One Black 1989 Cadillac, 522 N.W.2d 457 (N.D.1994), and his due process rights have been violated by the delay between the end of his criminal case and the State's forfeiture action. The district court's finding of fact regarding the State's probable cause to bring this forfeiture action is inadequate to provide this Court with an understanding of the district court's factual basis used to reach its conclusion. Furthermore, we conclude the district court's amended order is clearly erroneous, because it is based on incorrect facts. For that reason, we reverse and remand for a new hearing.

I

[¶ 2] Facts of the underlying criminal case were outlined in State v. Bergstrom, 2004 ND 48, 676 N.W.2d 83. We reiterate the facts pertinent to this appeal. In September 2001, the State charged Bergstrom with possession of marijuana and methamphetamine with intent to deliver, delivery of marijuana and methamphetamine, possession of drug paraphernalia, and possession of a firearm by a felon. The delivery of marijuana and methamphetamine and possession of a firearm by a felon charges were dismissed. Bergstrom was tried for possession of marijuana with intent to deliver, possession of methamphetamine with intent to deliver, and possession of drug paraphernalia. On June 6, 2003, he was acquitted of the possession of marijuana and methamphetamine charges and convicted of the drug paraphernalia charge. On that same day, he appealed the conviction.

[¶ 3] Items seized as evidence in the case included marijuana, methamphetamine, drug paraphernalia, two vehicles and keys, $1,536 in cash, a television, a VCR, and electronics used for a home security system. On August 20, 2003, only seventy-five days after the district court's judgment, Bergstrom moved for return of the keys, the $1,536, the television, the VCR, and the home security system. The record does not reflect that he served his motion on the state.

[¶ 4] On February 27, 2004, this Court affirmed the conviction. Bergstrom, 2004 ND 48, 676 N.W.2d 83. On March 22, 2004, this Court's mandate was entered. Responding to the court's request for information on the status of the seized property, Assistant State's Attorney Cynthia Feland wrote the district court on April 20, 2004. She wrote that some property of Bergstrom's had already been returned to his mother, other property was ready to be picked up, and the Bismarck police would advise Feland on what property remained in its custody. The record does not reflect that a copy of the letter was sent to Bergstrom.

[¶ 5] On April 22, 2004, the district court wrote on Bergstrom's motion for return of property: "GRANTED. Asst SA Feland said all that remains to be returned is a VCR which the police are attempting to return to Bergstrom's parents. Robert Wefald 4/22/04." The record does not reflect that a copy of the order was sent to Bergstrom or the State, nor was it listed in the register of actions.

[¶ 6] On September 16, 2004, the State moved to forfeit the $1,536, the drugs, and drug paraphernalia. The State's motion mentioned Bergstrom's motion, but omitted the date. The State's motion did not mention its April 20, 2004, letter to the court.

[¶ 7] The State's motion to forfeit the property was 468 days after Bergstrom's acquittal of possession with intent to deliver, 393 days after his motion to return his property, and 201 days after this Court's opinion affirming Bergstrom's paraphernalia conviction. The district court found that the property had already been returned to Bergstrom or his agents, except for the $1,536, the drugs, and the drug paraphernalia. The court then granted the State's motion to forfeit the $1,536, the drugs, and the drug paraphernalia. It found that the 201-day delay between the opinion affirming the conviction and the motion for forfeiture was justified. In its analysis, the district court used September 8, 2004, not April 20, 2003, as the date of Bergstrom's motion. It also found:

The Court, having presided over the trial and the reception of evidence, is completely satisfied that the cash seized in the amount of $1,536 was acquired from the proceeds of illegal activities. Although the State was not able to prove to the unanimous satisfaction of the jury that Bergstrom was guilty of other crimes charged in connection with the large quantity of drugs received into evidence, the Court finds there is overwhelming evidence that the cash in the amount of $1,536 is the result of illegal activities, and thus the State's motion for its forfeiture is GRANTED.

[¶ 8] On appeal, Bergstrom argues the district court erred in granting forfeiture because the $1,536 was earned legally; the district court's findings are contrary to this Court's decision in One Black 1989 Cadillac, 522 N.W.2d at 457; and, his due process rights were violated by the 201-day delay. The State argues that the district court properly found the property is forfeitable and that Bergstrom's due process rights were not violated, because the 201-day delay was justified. In its brief the State says Bergstrom's motion for return of property was made on September 13, 2004, not on August 20, 2003, as reflected by the register of actions.

[¶ 9] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. §§ 19-03.1-36.3 and 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2, 6, and N.D.C.C. §§ 28-27-01 and 28-27-02.

II

[¶ 10] Bergstrom argues forfeiture of the $1,536 is inappropriate because the money was not the proceeds of a criminal drug offense but was earned legally, and, therefore, it is not within the statutory definition of "forfeitable property." A trial court's decision on whether an item of property is forfeitable is a finding of fact that will not be overturned unless it is clearly erroneous. See State v. One 1990 Chevrolet Pickup, 523 N.W.2d 389, 395 (N.D.1994) (whether probable cause exists for the property seizure and whether the preponderance of the evidence supported forfeiture were factual findings for the district court to make); N.D.R.Civ.P. 52 ("[f]indings of fact . . . shall not be set aside unless clearly erroneous"). "A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, on the entire record, we are left with a definite and firm conviction that a mistake has been made." Buchholz v. Buchholz, 1999 ND 36, ¶ 11, 590 N.W.2d 215 (citation omitted).

[¶ 11] Chapter 29-31.1, N.D.C.C., allows for the forfeiture and disposition of certain seized property related to a criminal offense. A forfeiture action is a civil proceeding and is governed by N.D.C.C. §§ 19-03.1-36.1 through 19-03.1-36.7. N.D.C.C. § 29-31.1-04. "Forfeitable property" includes "[p]roperty that is acquired as or from the proceeds of a criminal offense." N.D.C.C. § 29-31.1-01(1)(c).

[¶ 12] Forfeiture is a two-stage process. See N.D.C.C. § 19-03.1-36.6; One 1990 Chevrolet Pickup, 523 N.W.2d at 395. The State must first show probable cause exists for the forfeiture action. N.D.C.C. § 19-03.1-36.6; One 1990 Chevrolet Pickup, at 394. Probable cause for forfeiture exists when "reasonable grounds exist to believe that the property was `probably connected with criminal activity.'" One 1990 Chevrolet Pickup, at 394 (quoting State v. Rydberg, 519 N.W.2d 306, 308 (N.D.1994)). The burden then shifts to the claimant to prove the property is not subject to forfeiture. N.D.C.C. § 19-03.1-36.6; One 1990 Chevrolet Pickup, at 394. The claimant's burden of proof is a preponderance of the evidence. N.D.C.C. § 19-03.1-36.2. Thus, property may be forfeited if it is more probable than not that the property was used in a criminal offense. See One 1990 Chevrolet Pickup, 523 N.W.2d at 395 (the claimant had to prove that his vehicle was not used in a felony, removing it from the vehicle forfeiture provision of § 29-31.1-01(1)(e)).

[¶ 13] Because forfeiture under chapter 29-31.1 is a separate civil proceeding, apart from any underlying criminal proceeding, the burden of each party does not change when the defendant is acquitted of the criminal charge. Forfeiture is "not dependent upon a prosecution for, or conviction of, a criminal offense. . . ." N.D.C.C. § 29-31.1-04(1); see also One 1990 Chevrolet Pickup, 523 N.W.2d at 393 ("neither a criminal charge nor a criminal conviction of a felony is a prerequisite to civil forfeiture of the vehicle used in that felony"); United States v. One Parcel Property Located at 427 and 429 Hall Street, 74 F.3d 1165, 1169 (11th Cir.1996) ("the acquittal, or even non-prosecution, of the owner on criminal charges is irrelevant as to the forfeitability of the property"). North Dakota's forfeiture statutes are similar to the forfeiture procedures once used in federal court.¹ One 1990 Chevrolet Pickup, 523 N.W.2d at 394 n. 3. The federal and North Dakota statutes both required the government first prove probable cause for the forfeiture action and the burden then shifted to the claimant to prove the property is not subject to forfeiture. Id.; see United States v. U.S. Currency in the Amount of $228,536.00, 895...