Appellate Law & Practice

CA1: plan interpretation and ERISA

Otero-Carrasquillo v. Pharmacia Corp., No. 05-2373.  This is an “interesting” ERISA case.  The First affirms the District Court’s granting of summary judgment, and assessment of civil penalties against Pharmacia for failing to comply with ERISA's reporting and disclosure provision.  In this case, the question is whether an administrator abused his discretion by denying him severance benefits.  As a matter of plan interpretation, the First says that the administrator was relying on the right verison of the law, and his decision wasn’t an abuse of discretion.  The court concludes that the plaintiffs IIED and “fraudulent inducement” claims are preempted by ERISA. 

CA1: forfeitures, fines, and they parents' home

US v. Ortiz-Cintron et al., Nos. 04-2402, No. 04-2403, No. 04-2404 (8/25/06). Resolves on the facts a post-guilty-plea forfeiture, noting that the defendant’s “brief offers no colorable reason why this showing was insufficient to support a finding that the property had been used to facilitate drug dealing.” And notes that impeachment of witnesses alone is not enough to attack such a forfeiture. The First doesn’t consider the District Court’s alternative finding regarding how the property came from the drug dealing.

CA1: drug quantity and Booker (and money laundering and misconduct)

US v. Hall, No. 03-2425, grants a Booker remand in a drug distribution, conspiracy and tax evasion case because the court expressed “unease” with the drug quantity.  The government proved the quantity by using the profits, but the District Court thought that the government was being speculative, which is good enough to get a Booker remand.  But, there were a lot of other, more interesting challenges (forfeiture, prosecutorial misconduct, sufficiency of the evidence of conspiracy, and Brady) that go below the fold.

CA1: standards for forfeiture

US v. López-Burgos, and $219,860, No. 04-1995.  A Fedex shipment from a fictitious person at a company in New York to Puerto Rico was intercepted.  In it was $220,000 in $20 bills (and not a scrapbook, as the manifest indicated).  But, it was delivered to the recipient, who was shortly thereafter stopped, and didn’t have a drivers license.  He also wouldn’t comment on what the parcel (in plain view) was.  A drug dog detected narcotics on the money, and the defendant agreed to relinquish the money.  “The money was formally seized and López Burgos filed an administrative claim to it. The United States subsequently commenced a civil judicial forfeiture by filing a verified complaint for forfeiture in rem. See 21 U.S.C. § 881(a)(6) and 18 U.S.C. §§ 981 and 983.”  The District Court founds dismissed the forfeiture complaint, discusses the repeal of 19 U.S.C. § 1615, and concludes that the government didn’t give López-Burgos adequate notice of why his money was being forfeited.  The government argues, and the First agrees that the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), which increased the government’s burden from “probable cause” to “preponderance” also reduced the pleading requirement to notice pleading (from particularity).  “It did so by stating that no civil forfeiture complaint may be dismissed because the government lacked sufficient evidence of forfeitability at the time of filing, see 18 U.S.C. § 983(a)(3)(D), and that the government may use evidence gathered after filing to meet its burden of proof, see 18 U.S.C. § 983(c)(2).”  So, it gets vacated and remanded.   

Lacey Ain't Loosey

In U.S. v. Deep Sea Harvester, the Ninth Circuit held that there is no innocenct owner defense to civil forfeiture proceedings arising out of Lacey Act violations.

We hold that Deep Sea may not raise an innocent owner defense here because, if the government can establish that the crab was taken, possessed, transported, or sold in a way that rendered it illegal under Russian law, the crab is “property that it is illegal to possess” for the purposes of 18 U.S.C. § 983(d)(4). It is illegal to posses not because crab is inherently unlawful, but because this particular shipment of crab allegedly was received and acquired in a way that rendered it illegal under the Lacey Act, 16 U.S.C. § 3372(a).

Slip op. at 6782.

CA1: A Booker remand a civil forfeiture

US v. Heldeman, No. 04-1915, affirms a civil forfeiture, but remands under Booker and United States v. Antonakopoulos, 399 F.3d 68 (1st Cir. 2005).

CA5 criminal forfieture: 3rd party petitions not appealable until all claims are resolved

U.S. v. Hosley is a per curiam dismissal of an appeal by 3rd party claimants to property subject to forfieture; because not all claims had been resolved, the court dismissed the appeal.