U.S. v. Parcels of Property, with Bldg. Appurtenances and Improvements Located at 255 Broadway, Hanover

• Decision Date: 04 August 1993
• Docket Number: No. 92-1776,92-1776
• Citation: 9 F.3d 1000
• Parties: UNITED STATES of America, Plaintiff, Appellee, v. PARCELS OF PROPERTY, WITH BUILDING APPURTENANCES and IMPROVEMENTS LOCATED at 255 BROADWAY, HANOVER, Defendant, Appellee, Claire J. Soule, Claimant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1000

9 F.3d 1000

UNITED STATES of America, Plaintiff, Appellee, v. PARCELS OF PROPERTY, WITH BUILDING APPURTENANCES and IMPROVEMENTS LOCATED at 255 BROADWAY, HANOVER Defendant, Appellee Claire J. Soule, Claimant, Appellant.

No. 92-1776.

United States Court of Appeals First Circuit.

Heard Aug. 4, 1993.

Decided Nov. 24, 1993.

Richard J. Inglis, with whom Richard A. Gargiulo and Gargiulo, Rudnick & Gargiulo, were on brief, for claimant, appellant.

Laurie J. Sartorio, Asst. U.S. Atty. with whom A. John Pappalardo, U.S. Atty. was on brief, for plaintiff, appellee.

Before SELYA and STAHL, Circuit Judges, and FUSTE, ^* District Judge.

STAHL, Circuit Judge.

In this appeal, claimant Claire Soule seeks costs and attorneys' fees incurred in recovering $2450 in cash which was seized in a drug raid on her home. We affirm the denial of costs and fees, though we do so on grounds different from those relied upon by the district court.

I. FACTUAL BACKGROUND AND PRIOR PROCEEDINGS ¹

During July of 1988, United States Drug Enforcement Administration (DEA) agents received information that 1500 pounds of marijuana were to be delivered to Jeffrey Soule at 255 Broadway in Hanover, Massachusetts. A local police check revealed that a John Jeffrey Soule resided in nearby Carver, Massachusetts, but that his mother lived at 255 Broadway in Hanover.

On the evening of July 23, 1988, after local police and DEA agents observed the delivery of marijuana to 255 Broadway, search warrants were obtained for the premises. At 4:30 a.m. the following morning, local and federal officials executed the warrants. The search revealed, inter alia: (1) approximately 1600 pounds of marijuana in a barn adjacent to the house; (2) $874,510 in cash found in a box in a closet on the first floor of the house; (3) 461.8 grams of cocaine, along with $5310 in cash in a basement safe; (4) $26,500 in cash found in a gym bag beside the bed in which John Jeffrey Soule was sleeping; (5) $3171 in cash found in a leather travel bag on top of a hutch in the dining room; and (6) a disputed amount of cash between $2450 and $4490 contained in five envelopes found inside the dining room hutch. Only this last item is at issue in this appeal.

On April 17, 1989, John Jeffrey Soule pleaded guilty to charges of conspiracy to possess marijuana and possession of marijuana with intent to distribute. On May 25, 1989, less than one month later, the government filed a complaint for forfeiture in rem of, inter alia, the cash proceeds found in the search of Claire Soule's home. ² On June 1, 1989, at the government's request, the district court issued a warrant and monition for, inter alia, all of the seized cash. ³ Claire Soule responded on June 14, 1989, by filing a notice of claim for the money found in the envelopes in the dining room hutch.

On September 6, 1989, a default judgment of forfeiture was entered against the lots of $874,510, $26,500 and $5310. ⁴ On February 13, 1991, the district court held a hearing at which the government was asked to show probable cause for the forfeiture of the money found in the five envelopes inside the hutch. At the conclusion of the hearing, the district court found that the government had failed to show probable cause for forfeiture of that money, and awarded $2450 to Claire Soule. The government moved immediately for a certificate of reasonable cause pursuant to 28 U.S.C. Sec. 2465, so as not to be liable for costs. ⁵ Claire Soule opposed the motion for a certificate of reasonable cause and sought attorneys' fees under the Equal Access to Justice Act (hereinafter EAJA), 28 U.S.C. Sec. 2412, ⁶ for expenses incurred in recovering the $2450. The district court granted the government's request for the certificate of reasonable cause and denied claimant's request for attorneys' fees.

II. DISCUSSION

We begin by noting that "we are free to affirm a district court's decision on any ground supported in the record even if the issue was not pleaded, tried or otherwise referred to in the proceedings below." De Casenave v. United States, 991 F.2d 11, 12 n. 2 (1st Cir.1993) (citations and internal quotations omitted). In this case, although the district court misapplied the statutory burden-shifting scheme applicable to federal forfeiture actions, we nonetheless affirm its denial of costs and attorneys' fees.

A. The Statutory Scheme: Probable Cause to Institute Forfeiture Proceedings

In a forfeiture action brought under 21 U.S.C. Sec. 881, the allocation of the parties' burdens is provided by 19 U.S.C. Sec. 1615. See 21 U.S.C. Sec. 881(d); United States v. 1933 Commonwealth Ave., 913 F.2d 1, 3 (1st Cir.1990). Section 1615 states, in relevant part, that the "the burden of proof shall be upon the defendant: Provided, That probable cause shall be first shown for the institution of such suit or action, to be judged by the court" (second emphasis supplied).

In other words, under section 1615, the government has a preliminary burden to show that it had probable cause to institute the forfeiture proceeding. See, e.g., United States v. 1988 Oldsmobile Cutlass Supreme, 983 F.2d 670, 675 (5th Cir.1993) (affirming district court's finding that government had "probable cause to institute a forfeiture action") (emphasis supplied); United States v. One Hundred Forty-Nine Thousand Four Hundred Forty-Two and 43/100 Dollars, 965 F.2d 868, 876 (10th Cir.1992) ("In forfeiture proceedings, the government bears the initial burden to show probable cause for the institution of the forfeiture action.") (emphasis supplied); United States v. 526 Liscum Drive, 866 F.2d 213, 216 (6th Cir.1989) ("[O]nce the government has met its burden of showing probable cause to institute the forfeiture action, the burden then shifts to the claimant....") (emphasis supplied); United States v. One 1976 Ford F-150 Pick-Up, 769 F.2d 525, 526 (8th Cir.1985) ("[T]he government has the initial burden of showing probable cause for the institution of the forfeiture suit.") (citations and internal quotations omitted and emphasis supplied). Once the government has made this showing, the burden then shifts to the claimant to show by a preponderance of the evidence that the property at issue is not subject to forfeiture. See, e.g., United States v. 18 Oakwood St., 958 F.2d 1, 3 (1st Cir.1992).

Here, the district court did not assess whether the government had probable cause to institute the proceedings. Rather, it improperly focused its inquiry on whether probable cause existed on the date of the probable cause hearing itself, and concluded that no probable cause existed at that time. See United States v. 255 Broadway, 795 F.Supp. 1225, 1231-32 (D.Mass.1992). The record before us makes clear, however, that on May 25, 1989, the date of the institution of forfeiture proceedings, the government had probable cause to believe that the funds at issue were forfeitable.

B. The Existence of Probable Cause in this Case

"Probable cause to forfeit requires only a 'reasonable ground for belief of guilt[,] supported by less than prima facie proof but more than mere suspicion' that the property is subject to forfeiture." United States v. 28 Emery St., 914 F.2d 1, 3 (1st Cir.1990) (quoting United States v. $250,000 in United States Currency, 808 F.2d 895, 897 (1st Cir.1987)). In other words, the government has a "relatively light burden of showing probable cause" to believe that the subject property is forfeitable. United States v. Plat 20, Lot 17, Great Harbor Neck, 960 F.2d 200, 205 (1st Cir.1992) (hereinafter Great Harbor Neck ). Moreover, "[b]ecause there are so many variables in the probable cause equation, probable cause findings are not invariably bound by precedent." United States v. Maguire, 918 F.2d 254, 258 (1st Cir.1990) (citations and internal quotations omitted), cert. denied, 499 U.S. 950, ----, 111 S.Ct. 1421, 2861, 113 L.Ed.2d 474, 115 L.Ed.2d 1027 (1991). Rather, in each case, we must consider "the totality of the circumstances to evaluate the government's demonstration" of probable cause. Id. In doing so, "we review each piece of evidence only to determine whether it is probative, not whether it establishes probable cause standing alone." United States v. $67,220.00 in United States Currency, 957 F.2d 280, 285 (6th Cir.1992).

In addition, we note that in order to show probable cause to forfeit in this particular case, the government was not required to show that the money at issue was traceable to the very contraband found on the night of the search. Rather, the district court held, and Claire Soule does not dispute on appeal, that the money at issue would be forfeitable if found to be the proceeds of any of John Jeffrey Soule's drug transactions. See, e.g., 1933 Commonwealth Ave., 913 F.2d at 3 (stating that the government is not "require[d to] link[ ] the property to a particular transaction").

Finally, while we accept the district court's underlying factual findings unless they are clearly erroneous, Maguire, 918 F.2d at 257, we note that "[t]he existence of probable cause is a question of law, and as such, is subject to plenary review." United States v. One 1986 Chevrolet Van, 927 F.2d 39, 42 (1st Cir.1991). Cf. United States v. Holder, 990 F.2d 1327, 1328 (D.C.Cir.1993) ("We review de novo the district court's legal conclusion that probable cause supported the arrest, but we examine the court's findings of fact only for clear error."); United States v. Greene, 783 F.2d 1364, 13 (9th Cir.) ("The ultimate conclusion of presence or absence of probable cause is a mixed question of law and fact. The underlying facts as found by the district court are to be accepted unless clearly erroneous. The court's ultimate conclusion, however, is reviewed de novo.") (citations omitted), cert. denied, 476 U.S. 1185, 106 S.Ct. 2923, 91 L.Ed.2d 551 (1986).

Applying these standards, we find the record replete with probative evidence which supports a finding that, on May 25, 1989, the government...