United States v. $16,540 US Currency

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10238
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
$16,540.00 IN U.S. CURRENCY,
Defendant,
DARRYL D. JACKSON,
Claimant-Appellant
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:99-CV-1130-D
--------------------
August 30, 2001
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Darryl Jackson appeals the district court’s grant of summary
judgment for the Government in this civil in rem forfeiture
action. Jackson argues that the district court erred by refusing
to appoint counsel, by concluding that the Government had
established probable cause to support the forfeiture, and by
denying his post-judgment motions. He has also filed a motion to
*
Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 5TH CIR.
R. 47.5.4.
No. 01-10238
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proceed in forma pauperis, in which he objects to the district
court’s imposition of two separate appellate filing fees.
A court “may request an attorney to represent any person
unable to afford counsel.” 28 U.S.C. § 1915(e)(1). However,
“[t]here is no automatic right to the appointment of counsel; and
in a civil case a federal court has considerable discretion in
determining whether to appoint counsel.” Salmon v. Corpus
Christi Indp’t Sch. Dist., 911 F.2d 1165, 1166 (5th Cir. 1990).
This court reviews the district court’s denial of counsel for
abuse of discretion. See Jackson v. Dallas Police Dep’t 811 F.2d
260, 261 (5th Cir. 1986). Several factors are considered in
determining whether exceptional circumstances are present and
whether appointed counsel would facilitate the administration of
justice: 1) the suit’s complexity; 2) the ability of the
indigent litigant to present the case; 3) the litigant’s ability
to investigate the case; and 4) the skill required to litigate
the case before the court. See Ulmer v. Chancellor, 691 F.2d
209, 212-13 (5th Cir. 1982). We conclude that the circumstances
of this case were not extraordinary and that the district court
did not abuse its discretion in declining to appoint counsel.
In a forfeiture action under 21 U.S.C. § 881(a)(6), the
government bears the initial burden of demonstrating probable
cause to believe there was a substantial connection between the
property to be forfeited and a crime under Title 21. See United
States v. One 1987 Mercedes 560 SEL, 919 F.2d 327, 331 (5th Cir.
1990). The probable cause threshold under 21 U.S.C. § 881 is
“reasonable ground for belief of guilt, supported by less than
No. 01-10238
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prima facie proof but more than mere suspicion.” See United
States v. $9,041,598.68, 163 F.3d 238, 246 (5th Cir. 1998)
(internal quotation omitted). This court reviews the district
court’s findings of fact for clear error, and its conclusion as
to whether the facts constitute probable cause de novo. See id.The record indicates that the district court relied on a
sworn affidavit from a member of the Dallas Police Department.
That affidavit described a tip given to police that Jackson was
carrying drugs, a firearm, and a large sum of currency; Jackson’s
varying explanations for the source of the currency; his
inconsistent explanations of where the currency previously was
stored; and his arrest six days later with 88.9 grams of cocaine,
1944.9 grams of marijuana, and a handgun. Based on this record,
the district court’s finding of probable cause to support the
forfeiture was not erroneous.
Jackson also argues that the district court erred by
refusing to accept IRS records submitted to show that he was
employed and paid taxes. We find no indication in any of the
district court’s orders that it “refused” to consider these
records.
Jackson argues that the district court abused its discretion
by denying his post-judgment motions for new trial and for relief
from judgment. Because there was no trial, Jackson’s motion for
a “new trial” following summary judgment was inappropriate;
however, as a pro se litigant, the motion should have been
construed as a motion for reconsideration pursuant to Rule 59(e).
See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (liberal
No. 01-10238
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construction of pro se pleadings); Patin v. Allied Signal, Inc.,
77 F.3d 782, 785 n.1 (5th Cir. 1996) (motion for new trial filed
after summary judgment properly considered under Rule 59(e)).
The denial of a Rule 59(e) motion is reviewed for abuse of
discretion. See St. Paul Mercury Ins. Co., v. Fair Grounds
Corp., 123 F.3d 336, 339 (5th Cir. 1997).
Jackson’s motion was an attempt to resubmit his unsworn
statement in proper form to rebut the summary judgment motion.
The district court’s denial was not an abuse of discretion
because “[a] district court is well within its discretion to
refuse to consider evidence submitted as part of a motion under
Rule 59(e) which was known to the moving party before the summary
judgment was issued.” See Lake Hill Motors, Inc. v. Jim Bennett
Yacht Sales, Inc., 246 F.3d 752, 758 (5th Cir. 2001).
Jackson’s second motion argued that he “neglect[ed] to put a
sworn affidavit in his pleading,” a “‘mistake’ and excusable
[n]egligence” caused by his lack of legal training and the denial
of appointed counsel. Jackson explains his failure to comply
with requirements for rebutting a summary judgment motion by
stating that he “was unaware of Rule 56(e) of Federal Rules of
Civil Procedure.” As the district court stated, the requirements
are clear from the text of Rule 56 itself. Jackson’s claim that
he was “unaware” of Rule 56(e) also strains credibility; his
pleadings cited Rule 56(b) and a number of cases describing
burdens of proof in civil forfeitures, suggesting that he had
access to legal materials. The district court did not abuse its
discretion by denying the motions.
No. 01-10238
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Jackson has moved to proceed IFP on appeal, but actually
argues that the district court incorrectly issued two filing fee
orders. The first assessed a fee for his appeal of the judgment
denying summary judgment; the second, issued the same day,
assessed a fee for the appeal of the post-judgment motions. The
assessment of two fees was error. Rule 4(a)(4)(B)(ii) of the
Federal Rules of Appellate Procedure requires a party intending
to appeal a denial of a post-judgment motion to file a notice of
appeal or an amended notice of appeal, but Fed. R. App. P.
4(a)(4)(B)(iii) provides that “[n]o additional fee is required to
file an amended notice.” Jackson has only one appeal, and should
have been assessed only one filing fee. The second order is
vacated and the district court is instructed to refund any
portion of that fee which has already been paid.
JUDGMENT AFFIRMED; SECOND IFP ORDER IS VACATED AND
REMANDED, WITH INSTRUCTIONS.