US v. Parcels of Real Property, Civ. A. No. 89-1160-WD.

• Decision Date: 25 June 1992
• Docket Number: Civ. A. No. 89-1160-WD.
• Citation: 795 F. Supp. 1225
• Parties: UNITED STATES of America, Plaintiff, v. PARCELS OF REAL PROPERTY WITH THE BUILDING, APPURTENANCES, AND IMPROVEMENTS LOCATED AT 255 BROADWAY, HANOVER, MASSACHUSETTS, One Lot of U.S. Currency in the Amount of $874,510.00, One Lot of U.S. Currency in the Amount of $26,500.00, One Lot of U.S. Currency in the Amount of $5,310.00, and One Lot of U.S. Currency in the Amount of $4,490.00, Defendant.
• Court: U.S. District Court — District of Massachusetts

795 F. Supp. 1225

UNITED STATES of America, Plaintiff, v. PARCELS OF REAL PROPERTY WITH THE BUILDING, APPURTENANCES, AND IMPROVEMENTS LOCATED AT 255 BROADWAY, HANOVER, MASSACHUSETTS, One Lot of U.S. Currency in the Amount of $874,510.00, One Lot of U.S. Currency in the Amount of $26,500.00, One Lot of U.S. Currency in the Amount of $5,310.00, and One Lot of U.S. Currency in the Amount of $4,490.00, Defendant.

Civ. A. No. 89-1160-WD.

United States District Court, D. Massachusetts.

May 29, 1992.

Corrected June 25, 1992.

COPYRIGHT MATERIAL OMITTED

MEMORANDUM AND ORDER

WOODLOCK, District Judge.

This case raises important questions about the interaction of a statute nearly 200 years old with more modern laws of civil forfeiture and litigation cost shifting against the government. After the claimant in this action — the mother of a drug dealer convicted of conducting his business from her home — successfully contested the government's efforts to forfeit real property and currency belonging to her, the United States moved pursuant to 28 U.S.C. § 2465 for a certificate of reasonable cause for its actions. The claimant opposed the motion as to the currency and moved in turn for costs and attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. Because I find that the government had reasonable cause for the initial seizure and was substantially justified in pursuing its forfeiture action to trial, I will issue a certificate of reasonable cause and deny the claimant's EAJA request for costs and fees.

I. FACTUAL BACKGROUND

During July of 1988, Drug Enforcement Administration Special Agent Allen Lively received information from a reliable informant that 1,500 pounds of marijuana were being shipped to Boston to a Jeffrey Soule. Police officers began a visual surveillance of 255 Broadway in Hanover, Massachusetts, a residence where Soule was apparently living, and observed a car described by the informant making a large delivery to a barn attached to the house. Later the same day, the police arrested the car's driver and found on his person marijuana and a list of numbers and amounts consistent with the expected narcotics delivery. A canine sniff search also indicated that the driver's truck contained marijuana. See Affidavit of Allen Lively at ¶¶ 3-12, Ex. B., Complaint.

Based on this information, the Hanover police officers obtained warrants to search, among other locations, the residence at 255 Broadway. The search was executed in the early morning of July 24, 1988, during which time the police seized large quantities of marijuana and cocaine, and several lots of currency totalling over $900,000. The instant motions are concerned with a disputed amount of the cash found in a kitchen hutch in white envelopes.¹

On April 17, 1989, Jeffrey Soule pled guilty to charges of conspiracy to possess marijuana and possession with intent to distribute marijuana. On May 25, 1989, the plaintiff United States filed its verified Complaint for Forfeiture in Rem pursuant to 21 U.S.C. §§ 881(a)(6) and (a)(7). The Complaint sought a warrant and monition to the United States Marshal to seize and take custody of the real property at 255 Broadway and the various lots of currency found at the residence, including the cash in the hutch. The Complaint further requested a judgment of forfeiture for those properties. On June 1, 1989, based upon the verified Complaint and supporting papers, I issued the warrant and monition and the properties were officially taken into custody.

On June 14, 1989, Claire Soule, Jeffrey Soule's mother and the owner of the house at 255 Broadway, filed a Notice of Claim, seeking release of the real property and certain of the monies found in the hutch, see note 1 supra, both of which she claimed to own lawfully. She made no claim with respect to the remaining lots of currency found in the house. Her claims to the currency and the real property were separately resolved at trial. First, upon completion of a two-day non-jury proceeding, I determined that the plaintiff could not meet its primary burden of establishing probable cause for the forfeiture of the $2,450.00 in currency which the claimant sought to have returned. A jury proceeding was then conducted as to the real property. After a four day trial, the jury returned a finding that Mrs. Soule was an innocent owner of the property and neither knew of nor consented to her son's unlawful use of the residence for his drug dealing.

At the conclusion of the first hearing, during which the issue of the currency was adjudicated, the government moved for a certificate of reasonable cause pursuant to 28 U.S.C. § 2465. Mrs. Soule opposed the motion as to the currency found in the hutch and moved under 28 U.S.C. § 2412 for attorney fees and costs associated with her opposition to the forfeiture of that lot of money.² While the opposing motions are interdependent and influence one another, they are not mutually dispositive. Accordingly, I will address them in turn.

II. THE CERTIFICATE OF REASONABLE CAUSE

The government's motion for a certificate of reasonable cause rests upon 28 U.S.C. § 2465, which provides,

Upon the entry of judgment for the claimant in any proceeding to condemn or forfeit property seized under any Act of Congress, such property shall be returned forthwith to the claimant or his agent; but if it appears that there was reasonable cause for the seizure, the court shall cause a proper certificate thereof to be entered and the claimant shall not, in such case, be entitled to costs, nor shall the person who made the seizure, nor the prosecutor, be liable to suit or judgment on account of such suit or prosecution.

(Emphasis added). This statute has existed, in one form or another, since 1799, and the rule it states "has been the law of the land almost since the foundation of the government." Agnew v. Haymes, 141 F. 631, 640 (4th Cir.1905). The certificate the statute describes immunizes a seizing or prosecuting official from liability and bars a successful claimant from recouping costs where the official had "reasonable cause" to seize property later shown to have been wrongfully taken from the claimant. See United States v. Tito Campanella Societa Di Navigazione, 217 F.2d 751, 756 (4th Cir.1954) (statute protects against liability for costs or damages where there was reasonable cause to institute forfeiture proceeding later dismissed). Despite the rule's venerable genealogy in the statute books, few courts have grappled with its application in the context of contemporary civil forfeiture law.³ I thus look to the articulated policies and purposes behind the statute to inform my judgment regarding its operation in the present case.

The Supreme Court has explained generally that the certificate, as prescribed by § 2465's predecessor, is designed to "protect the person at whose instance the seizure was made, should an action of trespass be brought against him by the claimant for the wrongful seizure of the latter's property." United States v. Abatoir Place, 106 U.S. (16 Otto) 160, 162, 27 L.Ed. 128 (1882). Later courts have elaborated upon this notion of the certificate as a means of "protecting" officials charged with responsibility for seizing potentially forfeitable property. The United States District Court for the District of Maine explained that, while the certificate of reasonable cause should only issue where clearly warranted by the evidence,

... the court ought to grant this certificate where the testimony shows affirmatively that the officers who instituted the proceedings were acting in good faith and under circumstances which would justify a reasonable suspicion; for, unless government officers shall feel assured that they will receive the protection of the courts in cases where they acted faithfully, carefully, and reasonably, they may become too timid in the performance of their grave and important duties.

United States v. 83 Sacks of Wool and 5,974 Sheepskins, 147 F. 747, 749 (D.Me. 1906) (emphasis added). More recently, another District Court has noted, "clearly, Congress enacted 28 U.S.C. § 2465 for the important purpose of preventing the `chilling' effect that liability for improvident seizures based on reasonable cause might have on the government." U.S. v. All Monies ($637,944.57) in Acc. XX-XXXX-XX, 746 F.Supp. 1441, 1446 (D.Haw.1990).

Thus, § 2465 reflects, at least in part, a concern that officials be able to pursue their duties to seize potentially forfeitable property without the cloud of a future lawsuit or costs dampening their zeal. As long as they are armed with "reasonable cause" — a standard discussed more fully below — such officials may act unencumbered by fear of reprisal. Given this policy concern, it is logical that courts typically look to the moment of seizure in considering whether to grant or deny the certificate. Thus, rather than considering later developments which either support or counsel against the issuance of the certificate, courts limit their review to the evidence as it existed at the time of seizure for purposes of assessing whether "reasonable cause for the seizure" existed within the meaning of the statute. See, e.g., All Monies, 746 F.Supp. at 1445 (court looks to information officials had at time of seizure; government cannot rely on evidence uncovered after seizure to support motion for certificate of reasonable cause); U.S. v. One (1) 1984 Mercedes Benz, 673 F.Supp. 387, 395, 396 (D.Haw.1987) (reasonable cause based on information the police acted on when they seized property); United States v. Property Identified as 1300 Florida Ave., No. 88-3409-LFO, 1989 WL 315184 at *2, 1989 U.S.Dist. LEXIS 11048 at *6 (D.D.C. September 19, 1989) (under § 2465, later assertion of innocent owner defense did not negate government's "original justification for seizing the property in the first instance"); see also, United States v. Two Thousand Five Hundred Sixty-Nine Dollars and...