Appellate Law & Practice

CA1: forfeiture remand in light of Santos and excessive fines clause

US v. Levesque, No. 08-1344.  This is a three million dollar forfeiture judgment against a drug mule.  The First says that yes, indeed, 21 U.S.C. § 853 authorizes money judgments.  Next, the First agrees with the parties that in light of the Supreme Court's decision in United States v. Santos, the District Court should figure out whether Santos requires that such forfeiture orders be based on "proceeds" or "receipts."

Then the First gets all intellectual about the excessive fines claus, and concludes "the purpose of imposing a forfeiture as a money judgment is to "permit[] the government to collect on the forfeiture order in the same way that a successful plaintiff collects a money judgment from a civil defendant. Thus, even if the defendant does not have sufficient funds to cover the forfeiture at the time of the conviction, the government may seize future assets to satisfy the order."

CA1: attorney fees in successful forfeiture cut

US v. One Star Class Sloop, No. 08-1152. 

Boat: 2   Government: 1

This is a forfeiture case, where the court earlier held that the government didn’t do enough to notify a part owner of the vessel that was owned by JFK.  “Since the government already had sold the vessel at auction, the court — which determined that the sales price equalled the vessel's fair market value — awarded a share of the net sales proceeds to Lane. It subsequently granted him attorneys' fees in an amount less than he had requested.”

The earlier opinion is here United States v. One Star Class Sloop Sailboat (Sloop I), 458 F.3d 16 (1st Cir. 2006) and our coverage is here.

Regarding fees under Civil Asset Forfeiture Reform Act of 2000 (CAFRA), 28 U.S.C. § 2465(b)(1).  The First says that it was okay to reduce fees because of “limited success.”  Then it says that the District Court was “uniquely suited” to determine whether the lawyers wasn’t their time “or the court’s” litigating “hopless” issues.  Whatever. Likewise, it wasn’t an abuse of discretion to rely on an agreed-upon rate.  The First then says that the District Court (somewhat vindictively) said that one of the lawyers engaged in "egregious overlitigation.” Strangely, the District Court reduced the rate, but not the hours.  However, the First does say that an inappropriate factor in calculating fees decision is “perceived lack of diligence in seeking to intervene in the forfeiture proceeding.”  But, the First says that substantive, there was no way that the client could have known, so the lawyer shouldn’t be dinged for not knowing.

As to value, the First turns back the argument that the part-owner didn’t have enough of a chance to present his evidence as a due process argument.  But, this really looks like summary judgment.

Substantively, the First says that a DOJ handbook on A Guide to Interlocutory Sales and Expedited Settlement (2003) isn’t doesn’t give rise to a “private right of action” and it isn’t relevant.  This misses the mark. The part-owner isn’t seeking to create a private right of action (one already has been).  Instead, he is arguing that the guide creates a rule of decision, or at least some kind of norm of behavior which the government is expected to follow. I don’t think Selya understands the distinction.  Anyway, the First says that the more rigorous methods required don’t apply when the court orders otherwise.

CA1: an escort service with an over-involved lawyer

US v. Reiner, No. 06-1451.  Oh boy.  The defendant was “the attorney for Kittery Health Club, Inc.,... [which] advertised itself as a massage parlor for men, but in reality it offered sexual services in exchange for money.”  He was charged under 18 U.S.C. § 2422(a) (the Mann Act) and 18 U.S.C. § 1952 (the Travel Act).  (Hint: it would be, like “totally legal” if they offered lifetime companionship and financial security in exchange for sexual services.  I am told that there is a whole field of law dedicated to enforcing such bargains.)  Apparently he took a more active role in running the brothel (including hiring ex-cops) after some of the characters dropped out.  Anyway, based on the affidavit of an IRS agent (which was based, in part, of internet descriptions of people’s experience there), the feds got a warrant.  They didn’t actually find anyone having sex.  But, they found a lot of used condoms.

CA1: A very bad case regarding cash reporting requirements

US v. Jose, No. 05-1126 (8/17/07). The 2001 USA PATRIOT Act, Pub. L. No. 107-56, § 371, 115 Stat. 272, 336-38 (codified as amended at 31 U.S.C. § 5332) has a cash-smuggling provision. After declaring 1,400, he was caught by customs and he said that he found $114,948. Strangely, this seems to be the best explanation. But the District Court says it isn’t “naïve.” Yes, we all know only rich people get to carry that cash around, and only rich people “luck” into $114,000 at the craps table. So, he plead guilty (and received a prison term), and the judge told him that he would probably forfeit the money. He also got two years in jail, but the judge, realizing that he was poor, did not impose a fine. But, in essence, he is punished because he is poor.

CA1: who is the “owner” of funds an interbank account for forfeiture purposes post -Patriot Act

US v. Bank of New York, Nos. 06-1187, 06-1423, 06-1444.  On the one hand this could be a boring financial dispute that makes people with a political bent yawn.  On the other hand, it could be a great civil liberties case.  Whatever the case, it involves the “proper construction of 18 U.S.C. § 981(k), a civil forfeiture provision concerned with interbank accounts of foreign banks, which was added as part of the USA PATRIOT Act, Pub. L. No. 107-56, § 319(a), 115 Stat. 272, 311-12 (2001).”  To give you some background, some funds are subject to forfeiture.  Some “owners” of funds are innocent.  Some are not.  Some bank accounts in the US are “interbank” accounts, in that they are really the accounts of foreign banks “where the banks have no physical presence, and otherwise to facilitate transactions involving such jurisdictions.” So, in some cases, an American bank might have funds in a bank account, that is an interbank account, and those funds might be subject to forfeiture.  However, a foreign bank might claim that they are entitled to those funds, as they were an “innocent” owner of such funds, even ultimate depositor was pure of spirit.

(An Eighth Amendment argument by a bank that the forfeiture was an excessive fine fails on the merits – not a standing issue.)

If you love America, you will read on.

CA1: forfeiture and stale police intelligence

US v. Pierre, No. 05-2309 affirms a conviction and forfeiture order in a drug case.  The defendant makes a number of rejected claims.  The most interesting is a forfeiture issue, but you have to read below the fold to find it.  Also, there is a strange issue regarding what happens when a cop's knowledge of someone's license suspension become stale.  But the defendant loses on everything.

CA1: DEA screwed up a forfeiture, and the First doesn’t publish

Rodriquez v. US Drug Enforcement Administration, 06-1795, 06-1832 (unpublished).  This is a lawsuit “alleging that an administrative forfeiture of $ 1905.00 violated due process because he had contested the forfeiture, and he received no notices in the administrative proceeding after an initial notice of seizure.”  For some reason the District Court dismissed for lack of subject matter jurisdiction, seeming to accept the DEA’s misconstrued his petition to “seeking only mitigation or remission.”  Apparently, he didn’t use the word “claim.”  The plaintiff says, obviously, that he wouldn’t have filed it under oath if he wasn’t contesting that the monies were legally obtained.  The First responds (with a long strightcite) that “A clear misconstrual of his petition states a due process claim within the district court's subject matter jurisdiction.”  Secondly, the plaintiff claims that he received no notice of the ongoing proceedings, so he couldn’t correct what DEA said.  Alas, they sent him the mail while he was in jail, the First says that the government needs to show actual service, and whatever the case the question of service if a fact-inquiry. 

Now, this annoys me.  This is some very good law for prisoners, and good advice for the government.  In fact, the plaintiff was pro se.  Why in god’s green earth is it unpublished?  The court concludes with a warning to prisons:

Finally, concerning MCI-Concord, we warn: "if the government knew that mail delivery in a particular prison was unreliable but sent the notice by this means without any other precaution, mail delivery would not satisfy due process."

Hopefully someone will get this prisoner to file a motion to publish.

CA1: the parallel proceedings universe

US v. 6 Fox Street, No. 05-2744.  This case illustrates the government’s strategy in criminal proceedings where the defendant has assets.  Concurrent with the criminal indictment the government commences a forfeiture proceedings.  Sure, this probably makes it harder to finance a defense. (But, on the other hand, it makes the defendant eligible for a public defender who is probably better at trial.)  Now, forfeiture proceedings are civil in nature, so the parties are entitled to more extensive discovery from each other, or at least more than the paltry amount that is constitutionally required in criminal proceedings.  Right?  Wrong.  The government almost always seeks a stay of the forfeiture proceedings.  This is a double-edged sword, because the defendant won’t have to assert his fifth amendment rights at any pre-criminal-trial depositions in the civil case.

CA1: forfeitures, sentencing, publicity, and discretion

US v. Misla-Aldarondo, No. 03-2073, 04-1424 (3/2/07).  This was a high profile public corruption case in Puerto Rico.  The highness of its profile gives rise of most of the objections that the former speaker of the Puerto Rican house of representatives raises.  Puerto Rico. The highness of its profile gives rise of most of the objections that the former speaker of the Puerto Rican house of representatives raises.

Keep reading for all your publicity needs.

Be forewarned, this is not a good opinion. It is not good because the First does painfully little legal analysis and essentially says everything is an “abuse of discretion” without explaining what that term means.

CA1: adventures in restitution

US v. Ziskind, Nos. 04-2076, 04-2579.  These guys stole razors.  "Mach3 razors" to be precise.  $254,000 worth of them, to be exact.  In this case, the government concedes that the defendant was given to much supervised release since "The government concedes that the thirty-six-month supervised release term was error.  18 U.S.C. § 3583(b) provides that the maximum period of supervised release for a misdemeanor is one year."  

On the other hand, the defendants argue that they were improperly given consecutive sentences, but the court finds that the defendants (that were charged with misdemeanors) were properly sentenced as the judge applied the mushy 18 U.S.C. § 3553(a) and 18 U.S.C. § 3584(b) factors properly. 

The court holds that post-Booker, judicial determination of the restitution amounts is permissible.  But, it gets a bit more interesting when the defendants argue that Gillette, by moving to quash a subpoena, and stating that it was willing to waive restitution (so as not to get involved with poor peoples' law), deprived the government of standing to seek restitution.  The court resolves this argument by stating that restitution is actually a criminal penalty.