Forfeiture of Everett Property Case
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Scribd Government DocsForfeiture of Everett Property Case
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UNITED STATES of America, Plaintiff, Appellee,
v.
LAND AND BUILDING AT 2 BURDITT STREET,
EVERETT,
MASSACHUSETTS, Defendant, Appellee,
Appeal of David PASCARELLA, Claimant, Appellant.
No. 90-1309.
United States Court of Appeals,
First Circuit.
Heard Sept. 6, 1990.
Decided Jan. 30, 1991.
Frances L. Robinson, for claimant, appellant.
Christopher F. Bator, Asst. U.S. Atty., with whom Wayne A. Budd, U.S.
Atty., was on brief for plaintiff, appellee.
Before BREYER, Chief Judge, VAN GRAAFEILAND, * Senior Circuit
Judge, and TORRUELLA, Circuit Judge.
VAN GRAAFEILAND, Circuit Judge.
David Pascarella appeals from a summary judgment of the United States
District Court for the District of Massachusetts granting forfeiture to the
government of Pascarella's house and lot on Burditt Street in Everett,
Massachusetts. The forfeiture proceeding was brought pursuant to 21 U.S.C.
Sec. 881(a)(7), which makes subject to forfeiture "[a]ll real property ... which is
used ... to facilitate the commission of a violation of [the Controlled Substances
Act] punishable by more than one year's imprisonment...."
The drug transactions giving rise to the forfeiture occurred during December
1988 and January 1989. Prior to that time, Pascarella, a carpenter by trade, had
begun remodelling the Burditt Street house to change it from a one-family to a
two-family dwelling. Despite his arrest on January 10, 1989, Pascarella
continued working on the house. Between January 10 and the commencement
of the forfeiture action on October 6, 1989, Pascarella had installed
improvements allegedly costing $11,972 and had performed labor having an
estimated worth of $30,678.90. Pascarella does not contest in this court the
government's right to bring the forfeiture action but contends that the
improvements made after January 10, 1989 did not fall within the section
881(a)(7) definition of real property which is used to facilitate a violation of the
Controlled Substances Act. He therefore seeks reimbursement from the
government for the value of his improvements. Neither party has provided the
court with informative precedent in this unusual case, and our own research has
been equally unproductive. However, we are satisfied that the district court
reached the correct result in summarily denying Pascarella's claim.
3
Pursuant to 21 U.S.C. Sec. 881(h), all "right, title, and interest" in Pascarella's
property vested in the United States upon commission of the acts giving rise to
the forfeiture. In actuality, this ownership was "fictive" in nature and was not
consummated until the judgment of forfeiture was entered. See Caplin &
Drysdale, Chartered v. United States, 491 U.S. 617, 109 S.Ct. 2646, 2653, 105
L.Ed.2d 528 (1989); id. 109 S.Ct. at 2672, 2676-77 (Blackmun, J., dissenting).
The traditional theory upon which this statutory scheme is based is that the
property itself was guilty of wrongdoing and was "tainted" because of its
connection with the alleged offense. Caplin & Drysdale, supra, 109 S.Ct. at
2653; United States v. United States Coin & Currency, 401 U.S. 715, 719-20,
91 S.Ct. 1041, 1043-44, 28 L.Ed.2d 434 (1971). So long as this taint existed,
the defendant, who was responsible for its creation, could not retain or acquire
any interest in the property. Section 881(a) specifically provides that, where
properties are subject to forfeiture, "no property right shall exist in them." As
this court stated in United States v. Kingsley, 851 F.2d 16 (1st Cir.1988), prior
to the time of forfeiture, the property is "in a kind of limbo--belonging totally to
neither the defendant nor the government...." Id. at 20.
In view of section 881's broad language, the parties' extensive discussion of
Massachusetts' law of fixtures is of little relevance. The law is well settled that,
in a forfeiture proceeding under section 881(a)(7), property in its entirety is
forfeitable even if only a portion of it was used for illegal purposes. See, e.g.,
United States v. A Parcel of Land, 884 F.2d 41, 44-45 (1st Cir.1989); United
States v. Harris, 903 F.2d 770, 777 (10th Cir.1990). This "is justifiable as a
means of remedying the government's injury and loss" resulting from the
"ravages of drugs upon our nation." United States v. A Parcel of Land, supra,
884 F.2d at 44. It is undisputed that, when the forfeiture proceeding was
brought against Pascarella's property, the improvements made by Pascarella
already had become an integral part of his house, a "tainted" property under the
federal statute. It therefore was subject to forfeiture.
5
The same rule might not apply to a proceeding under section 881(a)(6), which
provides for the forfeiture of things of value purchased with proceeds of the
unlawful sale of a controlled substance. See United States v. Pole No. 3172,
Hopkinton, 852 F.2d 636, 639-41 (1st Cir.1988); United States v. One 1980
Rolls Royce, 905 F.2d 89, 90-92 (5th Cir.1990); United States v. One Parcel of
Real Property, 705 F.Supp. 710, 715 (D.R.I.1989). However, we are concerned
here with subdivision (a)(7) of section 881, not subdivision (a)(6).
The district court held that the government did not unreasonably delay in
bringing its forfeiture action. We agree. However, we question whether this
issue always can be disposed of by simply referring, as the district court did, to
the five-year statute of limitation contained in 19 U.S.C. Sec. 1621 and also in
28 U.S.C. Sec. 2462. These sections provide that a forfeiture action cannot be
brought after a lapse of five years; not that forfeiture may be commenced at any
time within five years.
Because section 881 forfeitures are civil in nature, the duration of the period of
taint or limbo is not determined by the outcome of related criminal proceedings
against the defendant title holder. One Lot Emerald Cut Stones and One Ring v.
United States, 409 U.S. 232, 234-37, 93 S.Ct. 489, 491-93, 34 L.Ed.2d 438
(1972); United States v. One 1974 Porsche, 682 F.2d 283, 285 (1st Cir.1982).
This means that a forfeiture proceeding may be brought against a property the
owner of which already has been tried and acquitted on the charge giving rise to
the forfeiture or who never may be tried on that charge. See United States v.
One Assortment of 89 Firearms, 465 U.S. 354, 366, 104 S.Ct. 1099, 1107, 79
L.Ed.2d 361 (1984). Given this lack of association, an unexplained delay of up
to five years in asserting and adjudicating the existence and validity of a
retroactive property taint and limbo might well have due process implications.
See United States v. One Motor Yacht Named Mercury, 527 F.2d 1112, 1114
(1st Cir.1975); United States v. Laurenti, 581 F.2d 37, 41-42 n. 15 (2d
Cir.1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1499, 59 L.Ed.2d 771 (1979);
Sarkisian v. United States, 472 F.2d 468, 471-72 (10th Cir.), cert. denied, 414
U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219 (1973). There are, however, no due
process problems in the instant case.
During oral argument, counsel for the government referred to 19 U.S.C. Sec.
1618 as a possible source of relief from what Pascarella contends is an
inequitable result. This section, as interpreted by pertinent rules (28 C.F.R. Part
9), provides for possible mitigation of forfeiture in appropriate cases upon
application to the United States Attorney General. See United States v. One
Clipper Bow Ketch Nisku, 548 F.2d 8, 12 (1st Cir.1977). We have not been
asked to determine whether this administrative remedy is available to
Pascarella, and, because of the absence of any reference thereto in the record
and briefs now before us, we will not attempt to do so.
The judgment of the district court is
9
AFFIRMED.
