United States v. One Parcel of Land, Parcela 22 ( 2001 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-1747
UNITED STATES,
Plaintiff, Appellee,
v.
ONE PARCEL OF LAND, PARCELA 22, BARRIO LLANOS COSTA,
CABO ROJO, P.R.,
Defendant,
JORGE L. SUAREZ-MAYA,
Claimant, Appellant,
NAYDA FRANQUI; MUNICIPAL TAX COLLECTION CENTER (CRIM),
Claimants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
[Hon. Robert J. Ward,* U.S. District Judge]
Before
Lipez, Circuit Judge,
Campbell and Cyr, Senior Circuit Judges.
Jorge L. Suarez-Maya, on briefs pro se.
Guillermo Gil, United States Attorney, Miguel A. Fernandez,
Assistant United States Attorney, and Jose Javier Santos Mimoso,
Assistant United States Attorney, on brief for appellee.
August 23, 2001
______________________
*Of the Southern District of New York, sitting by designation.
Per Curiam. Pro se claimant Jorge Suárez-Maya
appeals a district court judgment that orders the forfeiture
of certain property to the government as the "proceeds" of
drug transactions, see 21 U.S.C. § 881(a)(6), and requires
the government to pay claimant one third of the forfeiture
sale's proceeds. We have thoroughly reviewed the record and
the parties' briefs on appeal. We vacate the forfeiture
judgment and remand for further proceedings because we
conclude that claimant did not have fair notice that his
trial would begin less than twenty-four hours after he was
transferred to Puerto Rico from the federal prison in
Allenwood, PA. We address the parties' salient arguments.
Jurisdiction
We reject the parties's suggestion that this court
lacks jurisdiction over the instant appeal because the
property damage claim alleged in claimant's "Moción En
Demanda", Docket #97, remained pending when the district
court entered its forfeiture judgment on March 24, 2000.
This claim was not pending because it required no ruling.
The "Moción En Demanda" constituted an attempt to cure the
lack-of-presentment defect that the district court identified
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when it dismissed claimant's property damage claim under the
Federal Tort Claims Act (FTCA) and granted the government
partial summary judgment. 1 Claimant had no right to bring
suit on his property damage claim when he filed his "Moción
en Demanda" because six months had not yet elapsed from the
date of presentment suggested by his Standard Form 95 and the
USMS had not administratively denied his claim. Moreover,
claimant never served his "Moción en Demanda" on opposing
counsel. Thus, the district court was required to do no more
than "note" claimant's "Moción En Demanda," as it did in its
January 29, 1999 order, Docket #104.
We recognize that the trial judge purported to
resurrect claimant's "Moción En Demanda" at the May 3, 2000
hearing. This action was a nullity. By that time, the
district court had lost jurisdiction over this case because
the claimant had filed a valid notice of appeal, Docket #120,
on February 28, 2000. It is clear that claimant filed this
notice to appeal from the decision that the district court
1 Claimant's "Moción en Demanda" included a Standard Form
95 by which claimant purported to present his property damage
claim to the United States Marshal Service (USMS) in Hato Rey.
Claimant obviously did this in response to the district court's
order that dismissed his property damage claim based on
claimant's failure to satisfy the FTCA's presentment
requirement. See 28 U.S.C. § 2675(a).
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announced at the February 17, 2000 trial. See Becker v.
Montgomery, 121 S.Ct. 1801, 1807 (2001). The district court
erred by failing to treat this document as a notice of
appeal. See, e.g., Hyche v. Christensen, 170 F.3d 769, 770
(7th Cir. 1999), overruled on other grounds by Lee v.
Clinton, 209 F.3d 1025, 1027 (7th Cir. 2000); Dickerson v.
McClellan, 37 F.3d 251, 252 (6th Cir. 1994); 20 Moore's
Federal Practice, §303.32[2][a][i] (3d ed. 1997). This was
not a case in which the claimant was trying to appeal an
obviously unappealable order. Compare United States v. Mala,
7 F.3d 1058, 1061 (1st Cir. 1993). Rather, this was a case
in which the claimant promptly filed a notice of appeal from
rulings announced from the bench, as contemplated by Fed. R.
App. P. 4(a)(2)("a notice of appeal filed after the court
announces a decision or order but before the entry of
judgment ... shall be treated as if filed after such entry
and on the date thereof[]"). The district court clerk should
have recognized that although claimant filed his notice of
appeal before judgment entered on March 24, 2000, the notice
ripened into effect on that date under Fed. R. App. P.
4(a)(2). At that point, the clerk had the obligation to
forward the notice of appeal and the docket entries to this
court under Fed. R. App. P. 3(d)(1).
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Because a valid notice of appeal divests the
district court of jurisdiction over matters related to the
appeal, see, e.g., Brandt v. Wand Partners, 242 F.3d 6, 14
(1st Cir. 2001), the district court lacked jurisdiction to
reopen the proceedings on the merits on May 3, 2000. Thus,
orders issued with respect to claimant's property damage
claim from that point on were a nullity. Accordingly, they
do not defeat this court's jurisdiction.2
The Merits
On appeal, claimant argues that the government
failed to establish probable cause for the forfeiture.3
Alternatively, claimant contends that the district court
deprived him of a fair opportunity to prepare and present his
defense by requiring him to proceed with trial when he had
2 We pause to note that claimant's "Moción En Demanda" is
in Spanish, as are a host of other documents that claimant filed
in the district court. Claimant has failed to supply this court
with English translations of his Spanish documents as required
by Local Rule 30(d). Ordinarily, we would hold that claimant
has waived any claim that is based on untranslated documents.
See, e.g., Ramos-Baez v. Bossolo-Lopez, 240 F.3d 92, 93-94 (1st
Cir. 2001); Lopez-Carrasquillo v. Rubianes, 230 F.3d 409, 413,
414 & n. 3 (1 st Cir. 2000); Gonzales-Morales v. Hernandez-
Arencibia, 221 F.3d 45, 50 n. 4 (1st Cir. 2000). Here, however,
the record contains numerous documents that describe the
critical records in English. Accordingly, we have relied on
these descriptions and hold that claimant has waived any claims
that call for a different translation.
3 We reject the government's suggestion that claimant did
not preserve this issue.
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not been transferred to Puerto Rico in time to attend his
final pretrial conference and further was not given notice
that his trial would begin on February 17, 2000. Claimant's
first contention lacks merit, but we are compelled to agree
with his second point.
We conclude that the government has established
probable cause for the forfeiture. To be sure, neither the
state nor the federal drug offenses identified in the
verified forfeiture complaint could reasonably be thought to
have yielded the requisite "proceeds." This is because these
offenses were unsuccessful and too remote in time to the
claimant's purchase of the defendant property to be
reasonably thought to have funded it. However, the evidence
at claimant's federal trial disclosed that claimant admitted
his culpability in ferrying 16 kilograms of cocaine from Mona
Island to the main island of Puerto Rico and that he knew
where an additional 250-270 kilograms was stashed on Mona
Island. See United States v. Ramirez-Ferrer, 82 F.3d 1149(1st Cir. 1996), 82 F.3d 1131 (1st Cir. 1996)(en banc),
United States v. Ramirez-Ferrer, 1995 WESTLAW 237041 (1 st
Cir. 1995). It is reasonable to conclude that someone
entrusted with this amount of cocaine and knowledge was not
committing his first drug offense in ten years (i.e., roughly
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the amount of time between claimant's state and federal
offenses). Rather, these circumstances suggest that claimant
probably engaged in additional drug crimes that could have
generated "proceeds" that at least partially funded his
purchase of the defendant property.
Nevertheless, we are compelled to vacate and remand
because the record discloses that claimant did not have fair
notice that his trial would begin less than 24 hours after
he arrived in Puerto Rico. It is undisputed that claimant
had notice of the district court order that first scheduled
his trial for March 15, 2000. Claimant further acknowledged
that he had the court's February 1, 2000 order, which the
district court construed as rescheduling claimant's trial for
sometime between February 14-29, 2000.4 But the February 1 st
order did not actually reschedule claimant's trial. Rather,
the final sentence of the order states, "The non-jury trial,
currently scheduled for MARCH 15, 2000 will be RESET for the
period between FEBRUARY 14-29, 2000 by separate order."
(emphasis supplied). The remainder of the February 1 st order
denied claimant's request for discovery, allowed claimant's
4 The February 1, 2000 order, Docket #115, was signed by
Judge Cerezo on January 31, 2000. Because the order was not
entered until the following day, we refer to Docket #115 as the
"February 1st" order.
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motion to be transferred to Puerto Rico so that he could
prepare for trial, ordered that claimant be transferred to
Puerto Rico "forthwith," and assigned the trial to a visiting
judge. The February 1st order also scheduled a status
conference for February 11, 2000.
We think it clear that Judge Cerezo ordered
claimant to be transferred to Puerto Rico "forthwith" so that
he could attend the February 11th conference and have a
modest amount of time in Puerto Rico to prepare for trial.
But claimant was not transferred to Puerto Rico in time to
attend the February 11th conference. Claimant's attendance
at this conference was required by Fed. R. Civ. P.
16(d)(providing that the final pretrial conference, "shall
be attended by ... any unrepresented parties." (emphasis
supplied)).5 In accordance with the February 1st order, the
trial judge issued a further scheduling order at the February
11th conference which advised the Assistant United States
Attorney (AUSA) "to be ready to go to trial any day after
February 16, 2000." There is no evidence that claimant was
ever given notice of this third scheduling order. Thus, the
record discloses that claimant arrived in Puerto Rico on the
5
Because of its close proximity to the trial, the February
th
11 conference constituted a final pretrial conference that
claimant had the right to attend under Fed. R. Civ. P. 16(d).
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evening of February 16th and that he was brought to court for
trial first thing in the morning on February 17th. But
having missed the final pretrial conference, and lacking
notice of the events that transpired there, claimant
reasonably believed that his case remained scheduled for
trial on March 15th.
The trial judge overlooked the fact that the
February 1st order did not actually reschedule the trial;
rather, it stated that a separate order would issue that
would reschedule the trial. The judge also overlooked the
fact that because claimant had not been transferred to Puerto
Rico in time to attend the February 11th conference and was
not notified of the events that transpired there, he had no
notice of the order that the judge issued at the conference
which resulted in the case being called for trial less than
24 hours after claimant arrived in Puerto Rico. Claimant was
prejudiced by this chain of events. Had he been transferred
to Puerto Rico in time to attend the February 11 th
conference, he would have had three days to line up his
witnesses and documents, for trial was then scheduled for
February 15th. As it was, claimant had less than 24 hours.
The trial judge recognized that claimant was at a
disadvantage and endeavored to ameliorate the situation by
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allowing a key witness, attorney Velez Rivera, to "testify"
by speakerphone. This was not sufficient. Attorney Velez
Rivera was the only witness whom the claimant identified who
appeared to have personal knowledge of many of the
circumstances surrounding claimant's sale of his other
property. Claimant was entitled to have a fair opportunity
to bring attorney Velez Rivera, and any others witnesses who
could offer admissible evidence to support his claims, into
court to testify.
In view of the foregoing, we think that the trial
judge abused his discretion in concluding that claimant had
fair notice of the trial date from the court's February 1,
2000 order. See, e.g., Casa Maria Hogar Geriatrico, Inc. v.
Rivera-Santis, 38 F.3d 615, 618 (1st Cir. 1994). We reject
the government's suggestion that the claimant was not
prejudiced by the foregoing course of events because he was
given a second opportunity to present evidence at the May 3,
2000 hearing. For one thing, the notice that the court
issued in scheduling that hearing described it as a hearing
on claimant's motion to stay the forfeiture sale. It is not
clear that claimant was told that he was going to get a
second bite at the apple. More importantly, by that time,
the court had no jurisdiction to offer such a bite, because
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the claimant had filed a valid notice of appeal. Thus, the
May 3rd hearing was not a sufficient cure for the inadequate
notice that preceded the trial.
Since claimant unquestionably suffered prejudice,
considerations of basic fairness dictate that we grant a new
trial. Moreover, we are greatly concerned that the record
on appeal fails to indicate that the government ever provided
the district court with an explanation for its sixteen-day
delay in returning claimant to Puerto Rico (to enable him to
prepare for trial), notwithstanding the explicit directive
in the district court's February 1st order that the
government do so "forthwith." Although the record obliquely
suggests that claimant may have required hospitalization
during this time, it was incumbent upon the government to
account for the seemingly inordinate delay, especially since
its deferment deprived claimant of the right to attend the
pivotal February 11 status conference.
Where the claimant in a civil forfeiture proceeding
is in federal custody and has not been made available in due
course for trial, the district court should determine the
reason for the tardy transfer. Should the district court
determine that there was government mischief or manipulation,
or that the explanation proffered for the delay was
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unsubstantiated or manifestly pretextual, it must exercise
its discretion by imposing a sanction commensurate with the
seriousness of the misfeasance. Any such sanction may
include the dismissal, with prejudice, of the civil
forfeiture complaint should the circumstances warrant. See
Fernandez v. Leonard, 963 F.2d 459, 462-63 (1st Cir.
1992)(noting that dismissal is potential sanction for "fraud
on the court," defined to include any "unconscionable scheme
calculated to ... unfairly hamper[] the presentation of the
opposing party's claim or defense.")(citation omitted). Of
course, it is for the district court to determine in the
first instance what, if any, sanction may be appropriate in
the circumstances.
The district court should proceed with its retrial
of the forfeiture action only after it has made an explicit
ruling on the government's explanation for the delay in
transfer, and it has determined in its discretion that the
ultimate sanction of dismissal is unwarranted in the
circumstances. At that juncture, the district court should
provide claimant adequate notice of the retrial date, as well
as a reasonable time and opportunity to prepare for the
retrial, to arrange for the court appearances of all material
witnesses, and for the translation of important documents
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(e.g., deeds of sale) which purportedly substantiate
claimant's defense.
While we need not reach claimant's remaining
arguments, we add the following comments to clarify certain
matters which could arise on remand should the district court
determine that dismissal of the forfeiture complaint is not
warranted. First, claimant cannot benefit from the Civil
Asset Forfeiture Reform Act of 2000 because this law applies
only to cases that were commenced on or after August 23,
2000. See, e.g., United States v. Real Property Located at
221 Dana Avenue, Hyde Park, MA, No. 00-1665, slip op. at 2,
n.1 (1st Cir. Aug. 17, 2001); United States v. Quintana-
Aguayo, 235 F.3d 682, 687 n.9 (1st Cir. 2000). Under the law
that governs this case, the government may use reliable
hearsay to satisfy its burden of proving probable cause, but
the claimant cannot rely on hearsay to rebut the government's
showing. See United States v. One Lot of Currency ($68,000),
927 F.2d 30, 32 (1st Cir. 1991)(forfeiture claimant "must
produce evidence which would be admissible at trial" in
opposing the government's motion for summary judgment).
Claimant must do more than proffer possible innocent (i.e.,
non-drug related) sources of income to rebut the government's
case. See United States v. Parcels of Property, 9 F.3d 1000,
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1005 (1st Cir. 1993). Rather, claimant must prove that non-
drug money funded his purchase of the defendant property by
a preponderance of the evidence. See United States v.
Parcels of Land, 903 F.2d 36, 38 (1st Cir. 1990).6
Second, the district court did not err by
disregarding the alleged legitimate sources of income that
claimant identified at his trial and in his prior deposition.
Absent evidence corroborating same, the district court was
not obliged to credit claimant's trial testimony regarding
his alleged sale of a boat. Claimant also is under the
mistaken impression that the entire transcript of his
deposition is part of the record. It is not. It is the
responsibility of the claimant, not the district court, to
identify evidence in support of his claims. See Ruiz Rivera
v. Riley, 209 F.3d 24, 27-28 & n.2 (1st Cir. 2000); Local
Rule 311.12.7 The district court also did not err by relying
6 Although we need not reach the issue, we note that the
testimony of Mrs. Sor Carrera Rodriguez regarding claimant's
alleged bolíta winnings was hearsay; therefore it added nothing
to claimant's case.
7 On appeal, claimant argues that he earned between $4000-
$5000 every three months from growing pumpkins and watermelons
on his property. However, claimant failed to bring the page
from his deposition that supports this claim to the attention of
the district court. Claimant's motion to take judicial notice
is denied insofar as it seeks to add this page to the record on
appeal. The remaining items addressed in that motion are part
of the record which we have reviewed; therefore there is no need
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on the fact that claimant did not file tax returns in
reaching its decision. The fact that claimant's alleged
income sources are not corroborated by tax returns is
relevant even if claimant's failure to file tax returns did
not violate Puerto Rico law (a matter on which we express no
opinion). 8 Finally, the district court did not err in its
treatment of Magistrate-Judge Delgado-Colon's June 17, 1998
report.
In view of the foregoing, the judgment of the
district court is vacated and the case is remanded for
further
proceedings consistent with this opinion. See Local Rule
27(c).
for claimant to seek judicial notice of these documents. The
suggestion in claimant's reply brief that his October 27, 1998
complaint, Docket #98, remains pending is waived because
claimant did not present this claim clearly in his opening
brief. See, e.g., United States v. Coviello, 225 F.3d 54, 70
n.10 (1st Cir. 2000), cert. denied, 121 S. Ct. 839 (2001).
8 The record of the May 3, 2000 hearing indicates that the
trial judge gave claimant the benefit of the doubt on this
issue. We assume that this means that he credited claimant's
contention that independent fisherman are not required to file
tax returns in Puerto Rico. Even if this is so, it does not
help claimant's case. If claimant fails to corroborate his
claims regarding the non-drug related sources of income that he
has identified, the district court may rely on this fact on
remand.
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