US v. Forfeiture, Property, All Appurtenances

• Decision Date: 27 August 1992
• Docket Number: Civ. A. No. 7-92-037-K.
• Citation: 803 F. Supp. 1194
• Parties: UNITED STATES of America, Plaintiff, v. FORFEITURE, PROPERTY, ALL APPURTENANCES AND IMPROVEMENTS, LOCATED AT 1604 OCEOLA, WICHITA FALLS, TEXAS, Defendant(s) In Rem.
• Court: U.S. District Court — Northern District of Texas

803 F. Supp. 1194

UNITED STATES of America, Plaintiff, v. FORFEITURE, PROPERTY, ALL APPURTENANCES AND IMPROVEMENTS, LOCATED AT 1604 OCEOLA, WICHITA FALLS, TEXAS, Defendant(s) In Rem.

Civ. A. No. 7-92-037-K.

United States District Court, N.D. Texas, Wichita Falls Division.

August 27, 1992.

William J. Anderson, U.S. Atty., Fort Worth, Tex., for plaintiff.

John Amescua Garcia, pro se.

Mary Lou Garcia, pro se.

Home Sav. of America, claimant, No Attorney Listed.

MEMORANDUM OPINION AND ORDER

BELEW, District Judge.

Before the Court is the motion of claimant John Amescua Garcia styled Introduction of Claimant, Petition for Counsel and Additional Time. Upon consideration of all pleadings, motions and applicable law, the Court is of the opinion that the motion is of merit and should be GRANTED in part. The motion is otherwise DENIED without prejudice to refiling at a later date if the conditions of representation are met.

This is an in rem forfeiture action against the property of John Amescua Garcia and Mary Lou Garcia. The property in this instance is the home of the Garcias. The government, plaintiff in this suit, seized the property upon authority of an ex-parte seizure warrant issued pursuant to 18 U.S.C. 881 and Rule 41 of the Federal Rules of Criminal Procedure. Based upon the motions and affidavits as presented to the Court for that seizure warrant, the Court determined that probable cause existed to seize the respondent property. Both Garcias are currently incarcerated in federal institutions upon crimes which the Court presumes to be related to this forfeiture proceeding.

Claimants seek additional time in which to file their claims. Supplemental Federal Rule of Civil Procedure C(6) provides for the allowance of additional time in which to file claims upon forfeited property. Pursuant to C(6), the Court will allow John Garcia and Mary Lou Garcia additional time in which to file their claims. John Garcia shall file his claim on or before September 15, 1992. Mary Lou Garcia shall file her claim on or before September 30, 1992.

A court's authority to appoint counsel in a forfeiture proceeding stems from three possible sources. A court may do so under the statute authorizing in forma pauperis proceedings, 28 U.S.C. 1915, which also allows a court to request an attorney to represent a party in any case. Under 18 U.S.C. § 3006A a court may appoint and compensate counsel for representation of a defendant in criminal proceedings and proceedings ancillary thereto. Finally, the Due Process Clause of the United States Constitution requires a court, in some circumstances, to appoint counsel on behalf of a party. Upon review of these possibilities, the Court finds that the appointment of counsel to represent the Garcias is not appropriate at this time.

When the action of a court clearly implicates the substantial interests of a party, the Due Process Clause of the Constitution may require a court to appoint an attorney to insure the adequate representation of that party's interests. Lassiter v. Department of Social Services, 452 U.S. 18, 27, 101 S.Ct. 2153, 2159, 68 L.Ed.2d 640 (1981). Historically, due process required the appointment of counsel only in cases threatening the physical liberty of criminal defendants. Lassiter, 452 U.S. at 25, 101 S.Ct. at 2158. In Lassiter, the Supreme Court found this historical interpretation merely "to be a presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty." Lassiter, 452 U.S. at 26-27, 101 S.Ct. at 2159. If a citizen is not automatically entitled to representation simply because of the character of the proceeding or the nature of the possible deprivation, due process may still require the appointment of counsel in a particular case. Id. The Lassiter Court held that the presumption against appointed representation must be balanced against the tripartite due process equation enunciated in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Lassiter, 452 U.S. at 26-27, 101 S.Ct. at 2159. In Eldridge, the Supreme Court listed three factors a court must evaluate when determining whether Due Process requires an additional procedural safeguard, (such as the appointment of counsel), in an official action by the government. Eldridge, 424 U.S. at 335, 96 S.Ct. at 903. Those factors are: 1) the private interest that will be affected by the action of the government; 2) the risk of an erroneous deprivation of that interest and the probable value of an additional procedural safeguard; and 3) the government's interest involved, including the burdens entailed by the additional procedural safeguard. Id. This is a case-by-case determination to be made by the district court. Lassiter, 452 U.S. at 31, 101 S.Ct. at 2161.

In the case at bar, the private interest affected is the Garcia's possession of their family home. They have been paying a mortgage upon the house for nearly twenty-five years and currently owe only about $2,300. Clearly, this interest is substantial and important.

The government interests involved are less compelling. The forfeiture seems to be primarily sought to further the punitive and exemplary interests of the government. There is no evidence that the home is a present danger to society, that it is enabling the continued trafficking of narcotics, or that it will pose a danger to society in the future or enable the Garcias to do so. The government is seeking to impose an additional penalty upon the Garcias, (who are already incarcerated), and to set an example of the costs involved in dealing drugs. While the government's interests in deterrence can be important, forfeiture of the Garcia's home would not significantly further those interests beyond the penalties already imposed. Any remedial interest the government has in seeking forfeiture to reimburse itself for the investigation and prosecution of Garcias is equalled by the Garcias monetary interest in maintaining their home. The government's interests in seeking forfeiture are important, but not compelling. Further, there is no showing that the government's interests will be substantially affected by the appointment of counsel for the Garcia.

The additional burdens imposed upon the government by appointment of counsel in this case would not be overwhelming. The mechanism to appoint counsel already exists, and though a question might arise of where funds for such an appointment might be found, no substantial procedural or administrative burdens would be created by a decision in the claimant's favor. Perhaps the most substantial imposition upon the government would be requiring the Plaintiff to oppose an attorney in a complicated and abstruse field where the Plaintiff normally expects to meet only pro-se litigants struggling through the claimant process. This imposition is not sufficient to deny the appointment of counsel.

The remaining Eldridge factor requires an examination of the likelihood of an erroneous deprivation and the probable value of an additional procedural safeguard. Eldridge, 424 U.S. at 335, 96 S.Ct. at 903. It is quite likely that in most, if not all forfeiture cases, the appointment of counsel would substantially aid a claimant in negotiating the arcane forfeiture procedures. It is also quite likely that in forfeiture cases where the claimant has a chance of success, the risk of an erroneous deprivation of property rights is substantially higher if the claimant must proceed pro-se.

Unfortunately for the Garcias, there is little chance a deprivation of their property through this particular proceeding would, in fact, be erroneous. Based upon evidence submitted by the government, the Court previously found sufficient probable cause existed to issue seizure warrants under Fed.Rule Crim.Pro. 41(c). The Garcias pled guilty to narcotics charges stemming from transactions involving their home. Examining the affidavits of the plaintiff, submitted for the purposes of the seizure warrant, and the guilty pleas of the claimants, there is ample evidence in the record to support a finding of forfeiture. Without deciding whether this evidence would eventually result in a forfeiture, the Court merely decides that an erroneous deprivation of property is unlikely in this case.¹ Therefore, when balancing the Lassiter presumption against required appointment of counsel and the ambivalent Eldridge factors in the case at bar, the Court finds that due process does not require the appointment of an attorney to represent the Garcias.

Contrary to the assertions of the Plaintiff, additional authority is granted a court to appoint an attorney under the Criminal Justice Act (CJA) for the representation of a claimant in a forfeiture proceeding. 18 U.S.C. 3006A (1991). The CJA authorizes the appointment of counsel to represent an indigent defendant in a pending criminal proceeding and all "ancillary matters appropriate to the proceedings." § 3006A(c). Ancillary proceedings are interpreted to include the defense and claim of a forfeiture action, when the defendant in rem might be used to reimburse the CJA funds for the criminal representation. Guide to Judiciary Policies and Procedure Vol. VII, Chap. II, § A 2.01(F)(5)(v) (1990).

At this time, many relevant facts are not before the Court. It is not clear what representation the Garcias had, how their attorneys were compensated, to what criminal activity did they plead guilty in the criminal proceedings for which they are now incarcerated, how that activity relates to this particular forfeiture action, and even whether the Garcias are truly indigent. If, after these questions are answered, it appears to the Court that the Garcias were represented by counsel compensated under the CJA and the in rem defendant in this proceeding might be available to reimburse the CJA fund, the Court would again consider a motion to appoint counsel for the Garcias. Without this...