U.S. v. Three Parcels of Real Property
| Citation | 43 F.3d 388 |
| Decision Date | 24 March 1995 |
| Docket Number | Nos. 93-2511,93-4036,s. 93-2511 |
| Parties | UNITED STATES of America, Appellee, v. THREE PARCELS OF REAL PROPERTY, with all their buildings, appurtenances, and improvements, described as: Lots 5, 6, and 7, North Corder Place, a Subdivision in Kansas City, Jackson County, Missouri, except the North 10 Feet of Lot 5, according to the recorded plat thereof, also known as 2517 Benton Boulevard, Kansas City, Missouri, The North 20 Feet of Lot 90, and the South 20 Feet of Lot 91, Blue Hills, a Subdivision in Kansas City, Jackson County, Missouri, according to the recorded plat thereof, also known as 6810 Paseo, Kansas City, Missouri, Lot 129 and Lot 130 Park Gate, a Subdivision in Kansas City, Jackson County, Missouri, according to the recorded plat thereof, also known as 6436 Agnes, Kansas City, Missouri, United States Currency in the Amount of $8,990.00, Defendants. Samuel L. Dowdy, Appellant, Gilbert L. Dowdy; Federal National Mortgage Association, Claimants. UNITED STATES of America, Appellee, v. THREE PARCELS OF REAL PROPERTY, with all their buildings, appurtenances, and improvements, described as: Lots 5, 6, and 7, North Corder Place, a Subdivision in Kansas City, Jackson County, Missouri, except the North 10 Feet of Lot 5, according to the recorded plat thereof, also known as 2517 Benton Boulevard, Kansas City, Missouri, The North 20 Feet of Lot 90, and the South 20 Feet of Lot 91, Blue Hills, a Subdivision in Kansas City, Jackson County, Missouri, according to the recorded plat thereof, also known as 6810 Paseo, Kansas City, Missouri, Lot 129 and Lot 130 Park Gate, a Subdivision in Kansas City, Jackson County, Missouri, according to the recorded plat thereof, also known as 6436 Agnes, Kansas City, Missouri, United States Currency in the Amount of $8,990.00, Defendants. Samuel L. Dowdy, Claimant, Gilbert L. Dowdy, Appellant, Federal National Mortgage Association, Claimant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Jamie K. Lansford, Kansas City, MO, argued, for appellant.
Kathryn Meyercough Geller, Kansas City, MO, argued (Marietta Parker and Frances Reddis, on the brief), for appellee.
Before WOLLMAN, MAGILL, and BEAM, Circuit Judges.
Gilbert and Samuel Dowdy appeal from a grant of summary judgment to the government in this 21 U.S.C. Sec. 881 forfeiture action, arguing that the district court 1 erred in requiring strict compliance with Admiralty Rule C(6), that the preseizure hearing was inadequate to meet the requirements of due process, and several additional constitutional claims. Because we find that it is no abuse of discretion to require strict compliance with Rule C(6), and that objection to the nature of the preseizure hearing was explicitly waived, we affirm.
On February 20, 1990, the United States filed a twenty-seven-count indictment in the United States District Court for the Western District of Missouri against Gilbert and Samuel Dowdy, alleging possession of, conspiracy to distribute, and distribution of cocaine and cocaine base; structuring currency transactions; and money laundering. In connection with this indictment, the government also sought civil forfeiture of two parcels of real property (19 East Armour and 7209 Troost) and several items of personal property pursuant to 21 U.S.C. Sec. 881.
On November 13, 1990, Samuel Dowdy was acquitted on all counts, and Gilbert Dowdy was convicted of conspiracy to distribute cocaine, two counts of money laundering, and structuring currency transactions, and was sentenced to one term of life imprisonment, one term of ten years, and one term of twenty years, to run concurrently. He was also fined in the amount of $339,274 and the property at 19 East Armour was forfeited. On April 24, 1992, the government obtained a judgment of forfeiture on the property at 7209 Troost.
On January 28, 1992, the government filed a complaint for civil forfeiture and an ex parte motion for warrant of arrest of property against three additional parcels of real property, 2517 South Benton, 6810 Paseo, and 6436 Agnes, and against $8,990 seized at 6436 Agnes. The complaint sought forfeiture of the property pursuant to 21 U.S.C. Sec. 881(a)(6) as proceeds traceable to exchanges of controlled substances, and, as to 6810 Paseo, pursuant to 21 U.S.C. Sec. 881(a)(7) as property used, or intended to be used, to commit or facilitate a violation of Title 21 of the United States Code. The complaint identified Gilbert Dowdy as a potential claimant of 2517 South Benton, Cannon Management Company (with which Samuel Dowdy was associated) as a potential claimant of 6810 Paseo, and Arthur Mitchell, whom the government alleged was a "strawman" for Gilbert Dowdy, as a potential claimant of 6436 Agnes.
The magistrate judge denied the government's motion for ex parte seizure, and instead, on February 20, 1992, held a hearing to determine if there was probable cause for the issuance of warrants for seizure on the properties. Gilbert Dowdy, his counsel, Arthur Mitchell, and Cannon Management Co. were all given notice of the hearing. Samuel Dowdy appeared at the hearing, and Gilbert's counsel also appeared on behalf of Samuel Dowdy, Arthur Mitchell, and Cannon Management Co. The magistrate judge again denied the government's request for ex parte warrants, rejecting the government's argument that "a preseizure ... hearing was not necessary." The magistrate judge offered defense counsel an opportunity to address the issue of the scope of the hearing, which defense counsel rejected, saying that she would wait until the preforfeiture hearing to raise defenses. Defense counsel did not offer any evidence, and stipulated to the truth of the affidavit of the government's witness, Kenneth J. Wissel, Special Agent, IRS, and conducted a brief cross-examination. Samuel Dowdy testified regarding tenants of the properties. Defense counsel argued that 6436 Agnes was not forfeitable, and government counsel presented argument and evidence tracing ownership of 6436 Agnes. At the conclusion of the hearing, the magistrate judge invited the parties to submit posthearing briefs or cases, but no party did so. The magistrate judge found that the government had shown probable cause, and the warrants were issued.
On February 24, 1992, "Gilbert Dowdy, et al., Claimant(s)" filed a pro se notice of claim and request for summary judgment in the district court. The request stated that claimants had legally purchased the properties, that the properties had never been used to facilitate the commission of a crime, that plaintiff failed to state a claim on which relief could be granted and failed to enter evidence linking the properties to facilitation of a crime, and finally that the burden of proof could not be shifted without probable cause. He also filed a motion for a more definite statement regarding the connection of the properties to the facilitation of a crime. "Samuel Dowdy, et al., Claimants" filed similar pro se motions on March 9, 1992. On March 6, 1993, the district court denied the Dowdys' motions for summary judgment and for a more definite statement. On March 12, 1993, the government filed a motion to strike claims and for judgment of forfeiture, to which the Dowdys did not respond.
The district court entered an order granting the government's motion to strike the Dowdys' claims, finding that the claims did not meet the requirements of Rule C(6) of the Supplemental Rules for Certain Admiralty and Maritime Claims (Rule C(6)) and did not set forth an interest in the properties sufficient to establish the Dowdys' standing to make a claim. The court then entered a final order of forfeiture. This appeal followed.
The Dowdys argue that the district court erred in requiring strict compliance with Rule C(6) and in striking their claims for non-compliance. We disagree. We have repeatedly held that district courts may require claimants in forfeiture proceedings to comply strictly with Rule C(6) in presenting their claims to the court. See United States v. RR 2, 959 F.2d 101, 104 (8th Cir.1992); United States v. $3,817.49, 826 F.2d 785, 787 (8th Cir.1987); and United States v. Beechcraft Queen Airplane, 789 F.2d 627, 630 (8th Cir.1986).
We review the district court's grant of the government's motion to strike the claims for abuse of discretion. RR 2, 959 F.2d at 104. The court found that the notices of claims did not meet the requirements of Rule C(6) nor did they set forth an identifiable ownership or possessory interest in the properties sufficient to establish standing. Rule C(6) requires that "[t]he claim shall be verified on oath or solemn affirmation, and shall state the interest in the property by virtue of which the claimant demands its restitution and the right to defend the action." The purpose of Rule C(6) is "to inform the court that there is a claimant to the property who wants it back and intends to defend it." Beechcraft, 789 F.2d at 629. Each notice consisted only of a list of the three parcels of real property and the currency seized, and the following statement:
Comes now, Gilbert L. Dowdy [Samuel Dowdy], et, al [sic], claimant(s) In Pro Se, and respectfully file herewith Notice of Claim to the above mentioned Defendant Properties.
In support thereof Claimant(s) would state under the penalty of perjury that legal title and interests in the aforesaid Defendants bearing claimants [sic] names are the legal foundation for this Claim.
Each notice was signed and dated, and Samuel Dowdy's included a certificate of service.
The district court did not abuse its discretion in finding that the above notice did not comply with Rule C(6). First, the use of "et al." evades the required showing of an interest in the property. The notices do not specify in which properties the named c...
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