U.S. v. One Parcel of Real Property with Bldgs., Appurtenances and Improvements Known as 116 Emerson Street, Located in City of Providence, R.I.

• Decision Date: 08 May 1991
• Docket Number: No. 91-1019,91-1019
• Citation: 942 F.2d 74
• Parties: UNITED STATES of America, Plaintiff, Appellant, v. ONE PARCEL OF REAL PROPERTY WITH BUILDINGS, APPURTENANCES AND IMPROVEMENTS KNOWN AS 116 EMERSON STREET, LOCATED IN the CITY OF PROVIDENCE, RHODE ISLAND, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 74

942 F.2d 74

UNITED STATES of America, Plaintiff, Appellant, v. ONE PARCEL OF REAL PROPERTY WITH BUILDINGS, APPURTENANCES AND IMPROVEMENTS KNOWN AS 116 EMERSON STREET LOCATED IN the CITY OF PROVIDENCE, RHODE ISLAND, Defendant, Appellee.

No. 91-1019.

United States Court of Appeals First Circuit.

Heard May 8, 1991.

Decided Aug. 21, 1991.

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

Vincent A. Indeglia, with whom Edward Romano, Providence, R.I., was on brief, for defendant, appellee.

Before CAMPBELL and TORRUELLA, Circuit Judges, and BOWNES, Senior Circuit Judge.

TORRUELLA, Circuit Judge.

The government appeals from a civil forfeiture action, instituted against the defendant property pursuant to 21 U.S.C. § 881(a)(7), in which the owner of record's wife was granted a 50% interest in the property. The government contends that the wife's Rule 24(a)(2) motion to intervene was procedurally deficient, Fed.R.Civ.P. 24(a)(2) (intervention as a matter of right); that she did not demonstrate sufficient ownership rights in the property; and that she failed to prove that she was an "innocent owner." We uphold the district court ruling.

FACTS

The property in question, 116 Emerson Street, Providence, Rhode Island, was deeded to Esteban Colon by its previous owner on December 19, 1979. The price of the property was $16,000. Esteban made an $8,000 down payment from worker's compensation funds and signed an $8,000 mortgage for the remainder. Esteban, his wife Elisa and their four children resided at the property from that date forward. The $8,000 mortgage was paid by Elisa.

In 1988, Esteban became suspect in a Drug Enforcement Agency ("DEA") investigation of heroin trafficking. Esteban delivered 17 browns ¹ of heroin to DEA Agent Terry Parham on September 9, 1988. After the sale, Agent Lawrence Lepore followed Esteban to the 116 Emerson Street address. On April 5, 1989, DEA agents, accompanied by Providence police officers, executed a federal search warrant at the property. The agents knocked and announced their presence in both English and Spanish. No one responded; however, activity could be heard inside. The agents kicked in the door, entered and discovered Elisa and her daughter Carmen in the living room. The agents searched the house. Seven browns of heroin and $19,325 in cash were discovered in a microwave oven. Elisa was immediately arrested; Esteban surrendered to the police later that same day. After the grand jury returned an indictment against him, Esteban pled guilty on October 26, 1989, to one count of distribution of heroin (the 17 browns delivered to DEA Agent Parham) and one count of possession with intent to distribute heroin (the seven browns found in the microwave). The charges against Elisa were dismissed.

On May 25, 1989, the Emerson Street property was seized under 21 U.S.C. § 881(a)(7) by the DEA pursuant to a finding of probable cause that the property had been used to facilitate the possession of, and the possession with intent to distribute, heroin in violation of 21 U.S.C. § 841(a)(1), a crime punishable by more than one year imprisonment. On June 1, 1989, a complaint for forfeiture in rem was filed by the United States against the property. Additionally, a warrant of arrest and notice in rem was issued by a United States magistrate. Notice of the forfeiture action was published in the Providence Journal Bulletin on June 13, 20 and 27, 1989. Default was originally entered against Esteban pursuant to Federal Rule of Civil Procedure 55, but was later vacated as a result of defective service.

On December 18, 1989, Esteban filed a claim to the property. On April 5, 1990, Elisa moved to intervene. The district court conducted a hearing on June 11, 1990. An order granting Elisa's motion was issued nine days thereafter. The case proceeded to bench trial on September 12, 1990. Defense counsel had earlier conceded that forfeiture was appropriate against Esteban. The only remaining issue

                was whether Elisa was entitled to any portion of the property.   The district court found that Elisa had obtained an equitable interest in the property by virtue of a resulting trust, that she had no prior knowledge of the property's illegal use, and that she was entitled to a 50% share in the property.   The remaining 50% was forfeited to the government
                

INTERVENTION

Elisa Colon's motion to intervene asserted possessory and equitable ownership in the property located at 116 Emerson Street. Thus, in effect, the motion acted as a claim to the property. See 7A Moore's Federal Practice p C.16 at 700.13 (1983) ("A 'claimant' ... is a person who assumes the position of a defendant and demands the redelivery to [her]self of the [property seized].") (quoting The Two Marys, 12 Fed. 152 (S.D.N.Y.1882). It was therefore subject to Supplemental Rule for Certain Admiralty and Maritime Claims C(6) (civil forfeiture claims) as well as Federal Rule of Civil Procedure 24(a)(2) (intervention as a matter of right). See Supplemental Rule for Certain Admiralty and Maritime Claims A (with respect to civil forfeiture actions, the "general Rules of Civil Procedure ... are ... applicable ... except to the extent that they are inconsistent with these Supplemental Rules"); United States v. One Dairy Farm, 918 F.2d 310, 311 (1st Cir.1990) ("Proceedings in forfeiture cases are governed by the Federal Rules of Civil Procedure and the Supplemental Rules for Certain Admiralty and Maritime [C]laims"). According to Federal Rule of Civil Procedure 24(a)(2), the following criteria must be met in order to intervene as a matter of right: (1) the party must claim an interest in the property; (2) disposition of the case without intervention, would, "as a practical matter, impair or impede [the party's] ability to protect that interest"; (3) the party's interest is inadequately represented by the existing parties; and (4) the motion for intervention is timely made. See Travelers Indem. Co. v. Dingwell, 884 F.2d 629, 637 (1st Cir.1989). When the purpose for seeking intervention under Rule 24(a)(2) is to assert a claim to property seized under 21 U.S.C. § 881, Supplemental Rule C(6) provides that a verified claim must be filed within 10 days after process has been executed, or within such additional time as may be granted by the court. See One Dairy Farm, 918 F.2d at 311. The government contends that Elisa Colon's motion to intervene failed in the following three respects: it was untimely, it failed to demonstrate an interest in the property, and it was not accompanied by a verified claim. We disagree.

First we consider the issue of timeliness. It is a "time-honored admiralty principle that pleadings and procedural practices should be applied liberally." United States v. One Urban Lot Located at 1 Street A-1, 885 F.2d 994, 1001 (1st Cir.1989). District courts should strive, "to the greatest extent possible" to ensure that "controversies are decided on the merits." Id. Toward that end, the district courts should exercise their "discretion to grant additional time for the filing of a claim ... when 'the goals underlying the time restrictions ... are not thwarted.' " Id. (quoting United States v. 1982 Yukon Delta Houseboat, 774 F.2d 1432, 1436 (9th Cir.1985); see also One Dairy Farm, 918 F.2d at 311 (the decision whether to allow a claim is entrusted to the sound discretion of the district court).

The reason for imposing time restrictions is "to force claimants to come forward as soon as possible after forfeiture proceedings have begun." One Urban Lot, 885 F.2d at 1001. Whether a belated claim will be recognized often depends upon the existence of mitigating factors. See One Dairy Farm, 918 F.2d at 311-12 (citing, inter alia, United States v. One (1) 1979 Mercedes 450SE, 651 F.Supp. 351 (S.D.Fla.1987); United States v. One 1979 Oldsmobile Cutlass Supreme, 589 F.Supp. 477 (N.D.Ga.1984); United States v. 1967 Mooney M20-F Aircraft, N9588M, 597 F.Supp. 531 (N.D.Ga.1983)); One Urban Lot, 885 F.2d at 1000 (citing United States v. Beechcraft Queen Airplane Serial Number LD-24, 789 F.2d 627, 630 (8th Cir.1986), for the proposition that "Rule C(6) may be construed liberally in the event of 'mitigating With respect to the instant case, we find the following factors persuasive: (1) Elisa Colon was neither named in nor served with a copy of the summons and complaint, and while notice of the pending forfeiture action appeared on three separate occasions in the Providence Journal Bulletin, Elisa does not have a significant command of the English language, see, e.g., Beechcraft Queen Airplane, 789 F.2d at 630 (a more liberal approach may be warranted when the claimant has not received actual notice of the complaint); (2) although forfeiture proceedings were originally instituted in June 1989, as a result of the vacated default judgment against Esteban, preparation for trial did not actually begin in earnest until December 1989; (3) once Elisa sought the aid of counsel and realized the potentially devastating consequences to her interest in the property, she actively pursued her claim; and (4) because discovery was not yet closed, ² the government had sufficient time to prepare its case against Elisa and thus was not unduly prejudiced by her intervention. Refusal to allow Elisa's motion, on the other hand, would have had devastating consequences--relinquishment of her claim and consequently all interest in the property. On balance, we cannot say that the district court abused its discretion in allowing an extension of time for filing Elisa's claim.

                factors' ").   Similarly, courts should consider the extent to which the government will be prejudiced if the claim is allowed.   See One Urban Lot, 885 F.2d at 1001.  (when the government will suffer no prejudice, equity and fairness may require the district court to exercise its discretion in the claimant's favor)
                

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