U.S. v. Estevez
| Citation | 845 F.2d 1409 |
| Decision Date | 22 February 1988 |
| Docket Number | No. 87-2432,87-2432 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Menelao Orlando ESTEVEZ, Defendant. Appeal of Jose Guillermo HARO. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Rebekah J. Poston, Fine Jacobson Schwartz Nash Block & England, Miami, Fla., for defendant.
R. Jeffrey Wagner and Eric J. Klumb, Asst. U.S. Attys., Patricia J. Gorence, U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.
Before CUMMINGS, COFFEY and RIPPLE, Circuit Judges.
Jose Guillermo Haro petitioned to set aside the forfeiture judgment entered by the district court on July 7, 1987, claiming both that his failure to file a timely third-party claim under 21 U.S.C. Sec. 853(n) resulted from excusable neglect and that he alleged a meritorious defense to forfeiture of his interests in the property. The district court denied that motion on August 19, 1987. Because Haro has demonstrated the inadequacy of the statutory notice given by the government, we reverse and remand to the district court for proceedings consistent with this opinion.
This case concerns the forfeiture of Haro's title interest in real estate located at 95th and 97th Street in Miami, Florida. Accordingly, we recite only those facts that pertain to this appeal. On September 9, 1986, the government filed an indictment charging Menelao, Celestino, and Omar Estevez (the individuals convicted in the underlying criminal prosecution from which this forfeiture arises) and 14 others with violations of federal narcotics laws. The indictments provided for the forfeitures of "any financial interest of [the Estevezes] in real estate located at [95th and 97th Streets in Miami, Florida]." This included "all furniture and appliances" maintained within the 95th Street residence.
Following the convictions of Menelao and Celestino Estevez, 1 the district court entered an "Order of Forfeiture and Seizure," forfeiting any of the three Estevezes' "right, title and interest" in the above property. Omar Estevez's interest was also included in the order although the criminal charges against him had been transferred to the Southern District of Florida for the entry of a plea.
The government published a notice of this forfeiture on January 11 and 18, 1987, in the Milwaukee Journal, and on March 5, 12, 19, and 26, 1987, in the Miami Review, a copy of which is reprinted in an appendix to this opinion, pursuant to 21 U.S.C. Sec. 853(n)(1). This notice was subsequently mailed to Haro 2 and his counsel on June 22, 1987, and was received on June 24. Haro additionally received a "Stipulation Regarding Judgment as to Certain Forfeiture Property," and a proposed "Order and Judgment" for the district court's review. The stipulation reflected the written negotiations between the Ponce de Leon Federal Savings and Loan Association, which held a mortgage and note on the 95th Street property, and the government; the government was to make final payment on the bank's note and mortgage in exchange for clear title to the property.
The proposed order and judgment called inter alia for the forfeiture of any of the Estevezes' financial interests plus a demand that the government receive title to the properties, including the furniture and appliances in the 95th Street residence. The district court signed this judgment on July 7, 1987, and Haro moved to vacate it on July 13. On August 19, the court denied this motion, and Haro appealed.
The government now concedes that Haro has presented a meritorious defense to the forfeiture action under 21 U.S.C. Sec. 853(n)(6)(A). (Br. 13); cf. United States v. Marx, 844 F.2d 1303, 1304 (7th Cir.1988). Moreover, the government agrees that the provisions of Rule 60(b) of the Federal Rules of Civil Procedure are available to a third-party claimant seeking to vacate the final judgment of forfeiture. Thus this Court need decide only the narrow question whether Haro's failure to file a third-party claim to the properties was based on "excusable neglect." Fed.R.Civ.P. 60(b).
Rule 7(c)(2) of the Federal Rules of Criminal Procedure requires that when the charged offense results in a forfeiture of property, the indictment must allege the extent of the interests of property subject to forfeiture. Fed.R.Crim.P. 7(c)(2); see United States v. Boffa, 688 F.2d 919, 939 (3d Cir.1982) (), certiorari denied, 460 U.S. 1022, 103 S.Ct. 1272, 75 L.Ed.2d 494 (1983). The indictment need not, however, describe each item subject to forfeiture, provided a bill of particulars supplies the detail lacking in the indictment. See United States v. Raimondo, 721 F.2d 476, 477-478 (4th Cir.1983) (per curiam ) (), certiorari denied, 469 U.S. 837, 105 S.Ct. 133, 83 L.Ed.2d 74 (1984). There was no bill of particulars in this case. In addition, Criminal Rule 31(e) provides that if the indictment alleges the extent of the property interests subject to forfeiture, a special verdict shall be returned as to the extent of the interest or property subject to forfeiture, if any.
In this case, the government's notice of forfeiture in the two newspapers tracked the language of the indictment's forfeiture provisions only against the Estevezes. 3 This notice called for the limited and specified forfeiture of "any financial interest" of the Estevezes in the 95th and 97th Street properties, including the furniture and appliances in the 95th Street residence. The notice also recited:
Notice of the Order of Forfeiture and Seizure, and of the United States' intent to dispose of the property in such manner as the Attorney General may direct, is hereby given to all persons who may have an interest in the property specified above. Any persons wishing to assert a legal interest in the property must petition the court for a hearing to adjudicate the validity of the alleged interest in the property.
While this notice could have apprised the three Estevez defendants of the extent of the interests sought by the government, it was insufficient to put Haro, allegedly the true owner of the properties, on adequate notice that the forfeiture action covered his title.
It was not until June 24, 1987--when he and his counsel received the published notice--that Haro fully realized that his title interest in the property was sought to be forfeited by the government. Since this was the first time that he was adequately apprised of the extent of the interest sought by the government, this date should be considered to commence the thirty-day period to file a claim under 21 U.S.C. Sec. 853(n).
The Second Circuit case of United States v. Grammatikos, 633 F.2d 1013, 1024 (1980), is instructive. The Grammatikos court held that the forfeiture of a defendant's interest in particular properties is permissible only if the indictment adequately alleges "the extent of the interest or property subject to forfeiture." 633 F.2d at 1024 (emphasis in original).
The notice here followed the indictment's allegations without stating Haro's title interest. As a potential third-party claimant, Haro was not alerted to the nature of the forfeiture sought. Any failure for a timely response by Haro plainly was excusable, cf. United States v. Forty-eight Thousand, Five Hundred Ninety-five Dollars, 705 F.2d 909 (7th Cir.1983), and the district court's entry of forfeiture on July 7, 1987 thus was premature.
Forfeitures of property are not favored, United States v. One Ford Coach, 307 U.S. 219, 59 S.Ct. 861, 83 L.Ed. 1249 and this Court, as well as others, is sensitive of the mandate which requires the government to provide adequate notice to potential claimants in forfeiture proceedings. Willis v. United States, 787 F.2d 1089, 1093 (7th Cir.1986) (). Therefore, for the above reasons, we vacate the judgment of forfeiture and direct the district court to provide Haro with sufficient time to file a verified Section 853(n) claim. 4
REVERSED AND REMANDED.
APPENDIX
MIAMI REVIEW
Published Daily except Saturday, Sunday and Legal Holidays
Miami, Dade County, Florida.
Before the undersigned authority personally appeared Octelma V. Farbeyre, who on oath says that she is the Supervisor of Legal Advertising of the Miami Review, a daily (except Saturday, Sunday and Legal Holidays) newspaper, published at Miami in Dade County, Florida; that the attached copy of advertisement, being a Legal Advertisement of Notice in the matter of
UNITED STATES OF AMERICA
v.
MENELAO ORLANDO ESTEVEZ, et al.,
in the U.S. DISTRICT Court, was published in said newspaper in the issues of March 5, 12, 19, 26, 1987
Affiant further says that the said Miami Review is a newspaper published at Miami in said Dade County, Florida, and that the said newspaper has heretofore been continuously published in said Dade County, Florida, each day (except Saturday, Sunday and Legal Holidays) and has been entered as second class mail matter at the post office in Miami in said Dade County, Florida, for a period of one year next preceding the first publication of the attached copy of advertisement; and affiant further says that she has neither paid nor promised any person, firm or corporation any discount, rebate, commission or refund for the purpose of securing this advertisement for publication in the said newspaper.
/s/ Octelma V. Farbeyre
Sworn to and subscribed before me this 26th day of March, A.D. 1987 /s/ Cheryl H. Marmer
Florida at Large
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