U.S. v. TWP 17 R 4, Certain Real Property in Maine

• Decision Date: 06 February 1992
• Docket Number: 91-1995,Nos. 91-1932,s. 91-1932
• Parties: UNITED STATES of America, Plaintiff, Appellant, v. TWP 17 R 4, CERTAIN REAL PROPERTY IN MAINE, et al., Defendants, Appellees. UNITED STATES of America, Plaintiff, Appellee, v. TWP 17 R 4, CERTAIN REAL PROPERTY IN MAINE, et al., Defendants, Appellees. Patrick Cunan, Claimant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 984

970 F.2d 984

UNITED STATES of America, Plaintiff, Appellant, v. TWP 17 R 4, CERTAIN REAL PROPERTY IN MAINE, et al.,

Defendants, Appellees.

UNITED STATES of America, Plaintiff, Appellee, v. TWP 17 R 4, CERTAIN REAL PROPERTY IN MAINE, et al.,

Defendants, Appellees.

Patrick Cunan, Claimant, Appellant.

Nos. 91-1932, 91-1995.

United States Court of Appeals, First Circuit.

Heard Feb. 6, 1992.

Decided July 29, 1992.

F. Mark Terison, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., was on brief for plaintiff, appellant U.S.

Kevin E. Sharkey, with whom Kenna, Johnston, Craighead & Sharkey, P.A., was on brief for defendants, appellees.

Before TORRUELLA, Circuit Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.

TORRUELLA, Circuit Judge.

This is an appeal by the Government from an order entered by the District Court for the District of Maine dismissing its in rem complaint for forfeiture of certain real property consisting of 400 acres, located in Township 17, Range 4, County of Aroostook, in the State of Maine. For the reasons stated below we affirm in part and reverse in part.

FACTS

The United States filed a civil complaint on October 23, 1990, seeking the forfeiture of three parcels of real estate, together with three rights of way, ¹ under the provisions of 18 U.S.C. § 981(a)(1) and 21 U.S.C. § 881(a)(6). ² The complaint alleged that the real property and rights of way were involved in money laundering transactions, in violation of 18 U.S.C. §§ 1956 or 1957, or constituted proceeds traceable to an illegal drug exchange in violation of 21 U.S.C. §§ 801-971.

More specifically the complaint alleged that Richard J. DeCato, Jr. ("DeCato"), was involved in large-scale drug trafficking since 1981. It also alleged that DeCato received substantial amounts of cash from his illegal activities and invested it in numerous assets, including several pieces of real estate in Maine. It further alleged that on February 6, 1985, DeCato purchased five lots along the Bay Creuse Road in Township 17, Range 4, in Aroostook County, Maine, and that he bought a large strip of land, measuring 1,000 by 12,000 feet, along the south shore of Long Lake in the same community on March 27, 1986, together with three rights of way. Moreover, the complaint alleged that on January 14, 1988, DeCato purchased still another large tract of land, measuring 400 acres, in Township 17, Range 4. All of these purchases allegedly took place while DeCato was a fugitive from justice. According to the allegations in the complaint DeCato had no legitimate source of income to enable A warrant of "arrest in rem" was issued by the deputy clerk of the District Court for the District of Maine directing the U.S. Marshal to "arrest the property ... and detain the same in your custody until further order of the Court," and notifying "[a]ll persons claiming an interest in said property" to file claims with the court according to the provisions of Rule C of the Supplemental Rules for Certain Admiralty and Maritime Claims. ³ There was no direction to the Marshal to actually seize the property and the Marshal who executed the warrant did not do so. Rather, the Marshal "posted" ⁴ the in rem defendants with process and filed a lis pendens in the Registry of Deeds for Aroostook County, informing title searchers of the pendency of the forfeiture action against each piece of real estate and against the rights of way. Process was also served upon both DeCato and Cunan. The Government did not schedule or request a hearing, either before or after securing the warrant of arrest for the defendant in rem.

                him to make such purchases of real estate.   Further, the complaint alleged that DeCato used the name of Patrick Cunan while buying the properties.   Thus, title to all of the defendant properties and rights of way was recorded in Patrick Cunan's name.   No affidavit in support of the complaint was filed
                

Patrick Cunan ("Cunan"), filed a verified claim to the defendant property and rights of way on December 21, 1990 as the owner of record. Cunan argued first that the civil forfeiture complaint itself was defective because it failed to satisfy the particularity requirement of Rule E(2)(a) of the Supplemental Rules for Certain Admiralty and Maritime Claims. ⁵ Second, Cunan argued that the process was defective because the defendant property was "seized pursuant to a warrant of arrest in rem, but the warrant itself was not signed by a neutral and detached judicial officer who had previously determined that one or more affidavits, in support of the warrant, establish probable cause for forfeiture." Lastly, Cunan submitted that the Government's procedure also violated the Due Process On January 10, 1991, Cunan filed a motion to dismiss the complaint claiming that the complaint failed to meet the particularity requirement of the Supplemental Rules, and violated both the Fourth Amendment Due Process Clause and the Fifth Amendment Due Process Clause.

Clause of the Fifth Amendment because it did not include a pre-seizure hearing. ⁶

The district court found no violation of the Fifth Amendment or the particularity requirement of the Supplemental Rules. However, relying on this court's decision in United States v. Pappas, 613 F.2d 324 (1st Cir.1980) (en banc), the district court entered judgment dismissing the forfeiture complaint on Fourth Amendment and due process grounds. Adhering to the reasoning of this court in Pappas, the district court concluded that the Government must obtain a judicial finding of probable cause before "arresting" a property. Pappas, 613 F.2d at 328-29.

The United States and Patrick Cunan both appeal from the decision of the district court.

LEGAL ANALYSIS

I. Rule E(2)(a)

Cross-appellant Cunan submits that the complaint at issue does not contain sufficient particularity to satisfy Rule E(2)(a) of the Supplemental Rules for Certain Admiralty and Maritime Claims. It is appellant's position that conclusory factual allegations, standing alone, do not provide the necessary detail to which a claimant is entitled in answering and investigating a civil forfeiture complaint. Thus, Cunan submits, the complaint should have been dismissed.

Rule E(2)(a), supra note 5, requires that a civil forfeiture complaint state the "circumstances from which the claim arises with such particularity that the defendant ... will be able ... to commence an investigation of the facts and to frame a responsive pleading." However,

the complaint need not allege facts sufficient to support a 'reasonable belief that specific property is tainted,' but facts sufficient to support 'a reasonable belief that the government could demonstrate probable cause' for finding the property tainted.

United States v. One Parcel of Real Property, 921 F.2d 370, 376 (1st Cir.1990) (citing United States v. Pole No. 3172, Hopkinton, 852 F.2d 636, 640 (1st Cir.1988)). We find that the complaint in the present case is more than sufficient to support a reasonable belief that the government, at trial, can make a probable cause showing that most, if not all, of the defendant property is connected to illegal drug proceeds. Further, the facts alleged in the complaint are sufficient to put the complainant on notice, and provide him enough information to allow him to investigate and respond to the complaint.

This circuit has explained the rationale of Rule E(2)(a) as follows:

The requirement is not merely a procedural technicality, but a way of insuring that the Government does not seize and hold, for a substantial period of time, property to which, in reality, it has no legitimate claim.

Pole No. 3172, Hopkinton, 852 F.2d at 638. The facts alleged in the complaint fulfill the purpose of that statute as interpreted by Pole No. 3172, Hopkinton. A reasonable inference can be made from the text of the complaint that Richard J. DeCato, then a fugitive from justice, acting under an alias, purchased properties with money he derived from the trafficking of large amounts of controlled substances, as he was not in any other way employed during the time of the purchases. The complaint also alleges that these purchases took place between the years of 1985 and 1988. We hold that this information is sufficiently particular to put appellant Cunan on notice of the pending action, and to allow him to investigate and answer the complaint.

II. The Fourth Amendment

The Government submits that Pappas is not controlling here because that case addressed only the actual seizure of an automobile without a warrant, and not whether a judicial determination of probable cause was required for the mere posting of a clerk's warrant, properly obtained under the Admiralty Rules. See Pappas, 613 F.2d at 326. Further, even if Pappas has some application here, the Government contends that Admiralty Rule C(3) and 21 U.S.C. § 881 were amended after the Pappas decision and now clearly and specifically demonstrate Congressional intent to exempt the Government from the necessity of securing a judicial warrant merely to post property in anticipation of forfeiture. Consequently, according to the Government, the Pappas interpretation of § 881 is no longer valid.

We note initially that in Pappas this court considered the question "whether the statute [Section 881] authorizes a warrantless seizure when the events providing the probable cause are remote in time from the actual seizure of the property and no exigent circumstances necessitate prompt action." Id. at 327. We concluded that it did not, stating that section 881 allowed a warrantless seizure "only when the seizure immediately follows the occurrence that gives the federal agents probable cause to believe that the automobile is subject to forfeiture under § 881(a) and the exigencies of the surrounding circumstances make the requirement of obtaining process unreasonable or unnecessary." Id. at 329-30 (emphasis in original). ⁷ The issues now before us are different ones,...