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USCA1 Opinion
November 5, 1992 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1247
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
ONE URBAN LOT,
Defendant, Appellee.
MIRIAM RUTH GELABERT-ALVAREZ,
Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. District Judge]
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Before
Breyer, Chief Judge,
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Bownes, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Luis A. Medina-Torres for appellant, Miriam Ruth Gelabert-
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Alvarez.
Jose F. Blanco, Assistant United States Attorney, with whom
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Daniel Lopez-Romo, United States Attorney, was on brief for
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appellee, United States of America.
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BOWNES, Senior Circuit Judge. The sole issue in
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this forfeiture case is whether the district court abused its
discretion in striking the claim of appellant Miriam Ruth
Gelabert Alvarez to the forfeited properties because it was
filed out of time. We find that the district court did not
abuse its discretion.
Rule C(6) of the Supplemental Rules For Certain
Admiralty and Maritime Claims frames the time requirements
for filing a claim in forfeiture proceedings. It provides in
pertinent part:
(6) Claim and Answer;
Claim and Answer;
Interrogatories. The claimant of property
Interrogatories.
that is the subject of an action in rem
shall file a claim within 10 days after
process has been executed, or within such
additional time as may be allowed by the
court, and shall serve an answer within 20
days after the filing of the claim.
The claimant-appellant did not file her claim until thirty-
seven days after process was executed. She argues that the
district court abused its discretion in not allowing her
additional time to file. Our assessment of whether the
district court abused its discretion is made in light of the
facts available to the trial judge.
I.
I.
The forfeiture proceeding was commenced by the
government on March 7, 1991, pursuant to the Controlled
Substances Act, 21 U.S.C. 881(a)(6) and (a)(7), and the
Money Laundering Act, 18 U.S.C. 981. Claimant was
personally notified of the forfeiture proceedings on March
27, 1991, when she appeared at the United States Marshal's
Office in San Juan accompanied by an attorney. Notice was
also given by publication in El Nuevo Dia, a newspaper of
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general circulation in Puerto Rico, on March 25, April 2, and
April 10, 1991. Claimant filed a claim to the properties and
an answer to the forfeiture complaint on May 3, 1991. This
was thirty-seven days after claimant had received personal
notice of the forfeiture proceedings at the United States
Marshal's Office.
There were other facts available to the court
bearing on the question of abuse of discretion. Claimant's
husband, Fernando Faccio-Laboy, was indicted and, after
trial, convicted for conspiring to buy fifty kilograms of
cocaine from a confidential informant working for the Drug
Enforcement Administration. The "buy" took place in an
apartment building known as the Feria Court Condominium on
August 15, 1990. After the arrest of claimant's husband, the
government started forfeiture against Faccio's interest in
the Feria Court Development Corp., owner of the building in
which the cocaine transaction took place. Claimant was
notified of this forfeiture on October 10, 1990. She did not
appear and the property owned by her husband was sold. After
further investigation, the government discovered that
claimant's husband had an extensive money laundering
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operation consisting of a number of real estate development
corporations and real property. It brought another
forfeiture case against the development corporations and real
estate held by them. This is the forfeiture case giving rise
to claimant's appeal.
On May 17, 1991, the United States moved that
appellant's claim be stricken because of late filing. Its
motion was granted on December 17, 1991. Claimant moved for
reconsideration on December 23, 1991. The motion was denied
on January 8, 1992.
II.
II.
Claimant argues that her late filing was due to
"disorientation and confusion" brought on by her husband's
indictment for drug dealing. In her claim she alleged that
she owned a 50% interest in a mortgage note payable to her
husband and herself in the amount of $19,055.00, described as
property A in the forfeiture, and a 50% interest in the real
estate referred to as property B in the forfeiture.
Paragraph 3 of appellant's claim states:
3. That claimant demands restitution
of her interest in such property based on
the fact that no illegal act or conduct has
been performed in these properties; said
properties have not been used or intended
to be used to commit or facilitate the
commission of any crime; said properties
are not values [sic] furnished or intended
to be furnished in exchange for a
controlled substance, nor are they proceeds
traceable to such an exchange; and claimant
or her property has nothing to do with the
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acts or omissions of other persons on such
property, that she had no knowledge of any
acts that could be committed nor she had
reasons to believe that any illegal act was
being committed in her property.
Claimant argues that the district court applied the
wrong standard in ruling on her motion to accept late filing
of her claim. The standard applied, according to claimant,
was that Rule C(6) "must be construed to the letter, no
matter what excuse the finding party may provide." Brief at
4. In striking claimant's claim the district judge stated:
The claimant has failed to comply
with the Rule C(6) Supplemental Rule to the
Federal Rules of Civil Procedure, ten day
deadline. Accordingly, its claim must be
STRICKEN from the record.
Although the order if read in a vacuum could be
interpreted as claimant does, the judge had before him
claimant's pleading pointing out that discretion was
available, and although the government's opposition initially
suggested or implied an absence of discretion (absent a
timely motion to enlarge time), it went on to paraphrase case
law recognizing such discretion and then disputed the
adequacy of the justification in this case. Under these
circumstances, we must assume that the district judge was
aware that under the Rule he had the authority to give
claimant more than ten days in which to file a claim. We
also must assume that the judge was fully aware of the
background facts, and particularly that claimant was
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accompanied by an attorney when she was notified of the
forfeiture proceedings against the properties, and her prior
exposure to forfeiture proceedings.
III.
III.
Our review is under the abuse of discretion
standard. U.S. v. One Dairy Farm, 918 F.2d 310, 311 (1st
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Cir. 1990).
Before a claimant in a forfeiture case can file an
answer and defend on the merits, a claim must be filed. If
no claim is filed, a putative claimant lacks standing to
contest a forfeiture. U.S. v. One Dairy Farm, 918 F.2d at
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311. U.S. v. One Urban Lot Located At 1 Street A-1, 885 F.2d
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994, 999 (1st Cir. 1989). There can be no doubt that a
district court can extend the ten-day deadline for filing a
claim. That is a matter within the district judge's
discretion. In light of the record facts in this case, there
is no basis for a finding that the district court abused its
discretion in imposing the ten-day restriction.
Affirmed.
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Document Info
Docket Number： 92-1247
Filed Date： 11/5/1992
Precedential Status： Precedential
Modified Date： 3/3/2016