Harmon v. United States ( 1996 )


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  •                      UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    _______________________
    No. 95-10809
    Summary Calendar
    _______________________
    ODELL HARMON, and on Behalf of the Estate of George Harmon,
    Plaintiff-Appellant,
    versus
    UNITED STATES OF AMERICA,
    Defendant-Appellee.
    _________________________________________________________________
    Appeal from the United States District Court
    for the Northern District of Texas
    (3:94-CV-1978-P)
    _________________________________________________________________
    August 29, 1996
    Before JOLLY, JONES, and STEWART, Circuit Judges.
    PER CURIAM:*
    Appellant Odell Harmon, # 22488-077 appeals the district
    court’s summary judgment in his action contesting the judicial
    forfeiture of a house in Dallas that was used to facilitate his
    participation in a major cocaine distribution ring.                Harmon is
    currently serving a 300-month term of imprisonment after pleading
    *
    Pursuant to Local Rule 47.5, the court has determined that this opinion
    should not be published and is not precedent except under the limited
    circumstances set forth in Local Rule 47.5.4.
    guilty to criminal charges that spawned the forfeiture proceeding.
    Although this court is constrained to reverse and remand for
    further proceedings, we caution that Harmon’s credibility hangs by
    a slender thread, and sanctions should be forthcoming if it appears
    that he has sworn falsely that he had no knowledge of the judicial
    forfeiture.
    In December, 1991 the federal government filed a civil
    forfeiture proceeding covering several tracts of land and various
    personal property in Dallas owned by Harmon, his deceased brother
    and others.   According to the summary judgment record, the civil
    forfeiture summons was served on Harmon when he was in the custody
    of the U.S. Marshal’s service in Dallas at 11:00 a.m. on January 3,
    1992.   Because neither Harmon nor a man named and served as his
    attorney (Montserrat) ever responded to the complaint, a default
    judgment was entered in April, 1992.
    Harmon commenced this action in mid-1994, alleging that
    he was denied due process because he was never served with summons
    or notified of the civil forfeiture proceeding.    He also asserts
    that the real property forfeiture is invalid because he received no
    pre-seizure notice as later required by the Supreme Court in United
    States v. James Daniel Good Real Property, 
    114 S.Ct. 492
     (1993).
    After clearing away a few procedural issues, we will
    analyze the district court’s actions on summary judgment.   First,
    Harmon may qualify for IFP status in this court because his case
    was pending long before the new amendments to 
    28 U.S.C. § 1915
    .
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    Second, the district court had jurisdiction over Harmon’s case
    pursuant to 
    28 U.S.C. § 1331
    , as that seems to be the basis on
    which several courts, including this one, have determined the
    procedural    viability     of   forfeiture    proceedings.   See,     e.g.,
    Scarabin v. Drug Enforcement Administration, 
    919 F.2d 337
    , 338 (5th
    Cir. 1990); United States v. Giraldo,
    45 F.3d 509
    , 511 (1st Cir.
    1995); and United States v. Woodall, 
    12 F.3d 791
    , 793 (8th Cir.
    1993).     That those cases involved administrative rather than
    judicial forfeitures is not a meaningful distinction.
    The district court granted summary judgment because he
    concluded that Harmon’s denial of receipt of summons and denial
    that     Montserrat   was    his    attorney     were   conclusional    and
    insufficiently supported by evidence. The government, in contrast,
    furnished a copy of the summons return and proof that Harmon had,
    contrary to his denial, been in the custody of the U.S. Marshals in
    Dallas on January 3, 1992.         We have only one quarrel with this
    description of the evidence: Harmon’s denial of receipt of summons
    is provided under penalty of perjury and therefore suffices as an
    affidavit for summary judgment purposes.             Nissho-Iwai American
    Corp. v. Kline, 
    845 F.2d 1300
    , 1306 (5th Cir. 1988).
    Although the likelihood that Harmon will prevail in
    pitting his credibility against that of the U.S. Government on the
    issue of service may seem slim, it is not the purpose of summary
    judgment proceedings to make credibility determinations.                The
    admissible evidence directly conflicted on whether Harmon was
    3
    served with process in the forfeiture case.               We must therefore
    reverse and      remand   for   further    proceedings    to    take   place   on
    Harmon’s claim that he was denied due process because he received
    no notice of the forfeiture case.
    The district court properly dismissed Harmon’s claim
    based on the requirement of pre-seizure notice for real property.
    The Good case was not decided until a year after Harmon’s Dallas
    property   had    been    forfeited,   and    Good   is   not    retroactively
    applicable to cases that were finally decided before Good issued.
    Harmon has moved for appointment of counsel and to
    supplement the record on appeal. These motions are DENIED; counsel
    is unnecessary and Harmon’s proffered papers are inapposite to this
    case.   The Government’s motion to supplement the appellate record
    with copies of the forfeiture documents that underlie this case is
    GRANTED.
    For the foregoing reasons, the judgment of the district
    court is AFFIRMED in part, and VACATED and REMANDED in part.
    4