U.S. v. Real Property Located at Incline Village, No. CV-N-90-0130-ECR.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
Writing for the CourtEdward C. Reed, Jr.
Citation976 F.Supp. 1327
PartiesUNITED STATES of America, Plaintiff, v. REAL PROPERTY LOCATED AT INCLINE VILLAGE et al., Defendants.
Docket NumberNo. CV-N-90-0130-ECR.
Decision Date28 April 1997
976 F.Supp. 1327
UNITED STATES of America, Plaintiff,
v.
REAL PROPERTY LOCATED AT INCLINE VILLAGE et al., Defendants.
No. CV-N-90-0130-ECR.
United States District Court, D. Nevada.
April 28, 1997.
Order Granting Reconsideration July 22, 1997.

Page 1328

COPYRIGHT MATERIAL OMITTED

Page 1329

COPYRIGHT MATERIAL OMITTED

Page 1330

COPYRIGHT MATERIAL OMITTED

Page 1331

COPYRIGHT MATERIAL OMITTED

Page 1332

COPYRIGHT MATERIAL OMITTED

Page 1333

COPYRIGHT MATERIAL OMITTED

Page 1334

COPYRIGHT MATERIAL OMITTED

Page 1335

COPYRIGHT MATERIAL OMITTED

Page 1336

COPYRIGHT MATERIAL OMITTED

Page 1337

COPYRIGHT MATERIAL OMITTED

Page 1338

Harry A. Harbin, Assistant Chief, Mark D. Rubino, Trial Atty., U.S. Dept. of Justice, Criminal Div., Asset Forfeiture and Money Laundering Section, Washington, DC, for U.S.

Lawrence S. Robbins, Alan E. Untereiner, Robert L. Bronston, Mayer, Brown and Platt, Washington, DC, for Claimants Degen.

ORDER

EDWARD C. REED, Jr., District Judge.


Introduction

The court previously determined that Claimant Brian Degen will be entitled to recover from Plaintiff the United States the rents and other income generated by certain real property seized by the government at the initiation of this in rem civil forfeiture action. See Order filed January 30, 1997 (Doc. # 143); see also United States v. James Daniel Good Property Titled in the Name of James Daniel Good, 971 F.2d 1376, 1384 (9th Cir.1992), aff'd in part and rev'd in part on other grounds, 510 U.S. 43, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993). Accord United States v. All Assets and Equip. of West Side Bldg. Corp., 58 F.3d 1181, 1193 (7th Cir. 1995). Cf. United States v. 2751 Peyton Woods Trail, S.W., 66 F.3d 1164 (11th Cir. 1995) (requiring dismissal of forfeiture action as remedy for due process violation through lack of preseizure notice and hearing).

The factual and procedural history of this matter is summarized in the court's previous Order (Doc. # 143). That Order is published at United States v. Real Property Located at Incline Village, 958 F.Supp. 482 (D.Nev. 1997).

Plaintiff the United States effected the seizures of the defendant real properties in October 1989, without prior notice to Claimant Degen and without first affording him an opportunity to contest the existence of probable cause to believe that the properties were the fruits or instrumentalities of crime. See 21 U.S.C. § 853(f) (authorizing seizure of property upon judicial determination of probable cause to believe property forfeitable).

The court in its January 30 Order ruled that these seizures violated Claimant Degen's rights under the Due Process Clause. United States v. James Daniel Good Real Property, 510 U.S. 43, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993). The court therefore determined that Claimant should recover from Plaintiff the rents produced by the seized real estate from the date of the seizures. United States v. James Daniel Good Property Titled in the Name of James Daniel Good, 971 F.2d 1376, 1384 (9th Cir.1992), aff'd in part and rev'd in part on other grounds, 510 U.S. 43, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993). The court instructed Claimant Degen to file with the court and serve upon the government proofs of the identities of the title owners of the properties, and of those owners' respective interests in the properties. The court also instructed the United States to provide detailed schedules of rents received and expenses incurred in connection with its management

Page 1339

and custody of those properties from the date of the seizures to the present. See Order filed January 30, 1997 (Doc. # 143, published at United States v. Real Property Located at Incline Village, 958 F.Supp. 482 (D.Nev.1997)).

The parties have submitted documents in accordance with those prior instructions of the court.1 To the extent those documents make possible, the court now attempts to resolve the issues raised by Claimant Degen's earlier motion (Doc. # 135) for the return of rents and other proceeds derived from the subject seized real property, and which remain undecided.

I. Judicial Estoppel

Both Plaintiff the United States and Claimant Brian Degen seek to utilize the doctrine of judicial estoppel. The government seeks to bar Degen from asserting ownership interests in the seized properties; Claimant seeks to bar the government from denying the existence of those ownership interests.

The government urges in support of its judicial estoppel argument Claimant Degen's prior "admi[ssion] that he is the co-owner of the properties listed in all Exhibits in the Complaint for Forfeiture in Rem...." Answer to Complaint for Forfeiture in Rem ¶ 3 (Doc. # 5). See also Brian Degen and Karyn Degen's First Amended Claim at 1 (Doc. # 53) (wherein Brian and Karyn Degen "state that they are co-owners of the defendant properties"). The government would use this admission to estop Claimant from now claiming, in the context of his motion for return of rents, sole ownership of any of the properties wrongfully seized from him.

Claimant Degen, for his part, sets up, as grounds to estop the government from denying his interests in the properties, the government's position, taken in its Motion for Summary Judgment (Doc. # 83), that Karyn Degen had no ownership interests in any of the real properties the rents earned from which are the subject of the present motion. See Plaintiff's Motion for Summary Judgment at 16 n. 1 (Doc. # 83) (denying Karyn Degen's ownership interests in any of the defendant properties).

The parties have now altered radically their positions on these points: The government now insists that the rents due Claimant Degen must represent only his fractional proportionate ownership interests in the seized real properties, as Karyn Degen is, as part owner, entitled to her share of the rents. Claimant Degen now maintains that he is the sole owner of the properties, thus entitling him to all the rents produced thereon.

Judicial estoppel, also known as the doctrine of preclusion of inconsistent positions, bars a party litigant, having taken a particular position on an issue, from attempting to gain advantage by later asserting a contrary one. Helfand v. Gerson, 105 F.3d 530, 534 (9th Cir.1997) (citing Rissetto v. Plumbers and Steamfitters Local 343, 94 F.3d 597, 600 (9th Cir.1996)). The doctrine protects the judicial process by preventing parties from "playing fast and loose" with the court. Helfand, ibid. (quoting Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.1990), cert. denied, 501 U.S. 1260, 111 S.Ct. 2915, 115 L.Ed.2d 1078 (1991)).

Judicial estoppel certainly applies to positions taken with respect to matters of fact, indeed, there exists authority for the proposition that the doctrine applies only to matters of fact, see Bates v. Cook, 615 F.Supp. 662, 672-73 (M.D.Fla.1984); United States v. Siegel, 472 F.Supp. 440, 442 n. 4 (N.D.Ill.1979); United States v. Certain Land and Interests in Rutherford County, 225 F.Supp. 338, 342. Contra In re Cassidy, 892 F.2d 637, 641-42 (7th Cir.), cert. denied, 498 U.S. 812, 111 S.Ct. 48, 112 L.Ed.2d 24 (1990); Hardwick v. Cuomo, 891 F.2d 1097, 1105 n. 14 (3d Cir.1989); Patriot Cinemas, Inc. v. General Cinema Corp., 834 F.2d 208, 214-15 (1st Cir.1987); Allen v. Zurich Ins. Co., 667 F.2d 1162, 1166-67 (4th Cir.1982).

Page 1340

The doctrine of judicial estoppel is not, however, designed as a trap for the unwary; its purpose is to prevent the deliberate manipulation of the court through two-facedness. The doctrine has no force when the parties' changed position is the result of mistake or inadvertence. Helfand, id. at 536 (citing John S. Clark Co. v. Faggert & Frieden, P.C., 65 F.3d 26, 29 (4th Cir.1995); In re Corey, 892 F.2d 829, 836 (9th Cir.1989), cert. denied, 498 U.S. 815, 111 S.Ct. 56, 112 L.Ed.2d 31 (1990)).

In the present matter there exist at least three powerful reasons to refuse to apply the doctrine of judicial estoppel. First, the parties could never have anticipated, at the outset of this litigation, that the Supreme Court would, in James Daniel Good Real Property, announce a brand-new constitutional procedural right which would force them to rethink their positions regarding the ownership of the defendant properties. Nor could the parties anticipate the ruling of the Court of Appeals that the Supreme Court's 1993 decision in James Daniel Good would apply retroactively to all federal forfeiture cases not yet final on the date of the Court's decision. United States v. 20832 Big Rock Drive, 51 F.3d 1402, 1405-06 (9th Cir.1995). Accord United States v. 9638 Chicago Heights, 27 F.3d 327, 329 (8th Cir.1994).

Second, Claimant Degen could argue, with some justification, that the court's striking of his pleadings under the fugitive disentitlement doctrine, see United States v. Real Property Located at Incline Village, 755 F.Supp. 308 (D.Nev.1990), aff'd, 47 F.3d 1511 (9th Cir.1995), and rev's sub nom. Degen v. United States, 517 U.S. 820, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996), erases any position he may have taken in those stricken papers. See Order filed December 31, 1990 (Doc. # 27) (granting the government's motion (Doc. # 8) to strike Claimant Degen's claims to the property and his papers filed in opposition to the government's motion for summary judgment).

Third, it might also be argued, again with some justification, that the decision of the Supreme Court vacating the judgment entered by this court in favor of Plaintiff the United States effectively gifts the parties with a tabula rasa, entitling them to begin anew their arguments in support of their respective positions. See Degen v. United States, ___ U.S. ___, 116 S.Ct. 762, 133 L.Ed.2d 707 (1996), rev'g United States v. Real Property Located at Incline Village, 47 F.3d 1511 (9th Cir.1995), aff'g 755 F.Supp. 308 (D.Nev.1990).

To this extent, then, the parties' revision of their positions respecting the respective ownership interests of Brian and Karyn Degen in the...

To continue reading

Request your trial
15 practice notes
  • Hsu v. County of Clark, No. 46461.
    • United States
    • Nevada Supreme Court of Nevada
    • December 27, 2007
    ...(quoting Wright v. Carson Water Co., 22 Nev. 304, 308, 39 P. 872, 873-74 (1895))). 12. U.S. v. Real Property Located at Incline Village, 976 F.Supp. 1327, 1353 13. Poet v. Thompson, 208 Or.App. 442, 144 P.3d 1067, 1072 (2006); see also Real Property Located at Incline Village, 976 F.Supp. a......
  • Pacheco v. Serendensky, No. 03-6164.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 29, 2004
    ...v. 198 Training Field Road, 2004 WL 1305875, at *2-3 (D.Mass. June 14, 2004); United States v. Real Property Located at Incline Village, 976 F.Supp. 1327, 1342-43 (D.Nev.1997). Although we recognize that the criminal and civil forfeiture provisions are not identical, see United States v. $3......
  • U.S. v. Salti, No. 07-4487.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 25, 2009
    ...whether Mary Salti has a colorable marital interest in the Account. Cf., e.g., United States v. Real Prop. Located at Incline Vill., 976 F.Supp. 1327, 1340-41 This determination, however, is only part of the required analysis. The Government has not conceded that Mary Salti has a sufficient......
  • U.S. v. Property Identified As Lot Numbered 718, Civil Action No. 96-2100-LFO.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • July 29, 1998
    ...seized to the position he or she would have otherwise occupied." United States v. Real Property Located at Incline Village, 976 F.Supp. 1327, 1348 (D.Nev.1997). Three other circuits have endorsed this approach. See United States v. Marsh, 105 F.3d 927, 931 (4th Cir.1997); United States v. A......
  • Request a trial to view additional results
15 cases
  • Hsu v. County of Clark, No. 46461.
    • United States
    • Nevada Supreme Court of Nevada
    • December 27, 2007
    ...(quoting Wright v. Carson Water Co., 22 Nev. 304, 308, 39 P. 872, 873-74 (1895))). 12. U.S. v. Real Property Located at Incline Village, 976 F.Supp. 1327, 1353 13. Poet v. Thompson, 208 Or.App. 442, 144 P.3d 1067, 1072 (2006); see also Real Property Located at Incline Village, 976 F.Supp. a......
  • Pacheco v. Serendensky, No. 03-6164.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 29, 2004
    ...v. 198 Training Field Road, 2004 WL 1305875, at *2-3 (D.Mass. June 14, 2004); United States v. Real Property Located at Incline Village, 976 F.Supp. 1327, 1342-43 (D.Nev.1997). Although we recognize that the criminal and civil forfeiture provisions are not identical, see United States v. $3......
  • U.S. v. Salti, No. 07-4487.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 25, 2009
    ...whether Mary Salti has a colorable marital interest in the Account. Cf., e.g., United States v. Real Prop. Located at Incline Vill., 976 F.Supp. 1327, 1340-41 This determination, however, is only part of the required analysis. The Government has not conceded that Mary Salti has a sufficient......
  • U.S. v. Property Identified As Lot Numbered 718, Civil Action No. 96-2100-LFO.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • July 29, 1998
    ...seized to the position he or she would have otherwise occupied." United States v. Real Property Located at Incline Village, 976 F.Supp. 1327, 1348 (D.Nev.1997). Three other circuits have endorsed this approach. See United States v. Marsh, 105 F.3d 927, 931 (4th Cir.1997); United States v. A......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT