USCA1 Opinion
January 18, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1452
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
ONE URBAN LOT LOCATED AT ROAD 143 K 36.1
BAUTA ABAJO WARD OROCOVIS, PR., ET AL.,
Defendant, Appellee,
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ELVIN TORRES-COLON,
Claimant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
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Before
Torruella, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Jose R. Franco-Rivera for appellant.
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Jose F. Blanco-Torres, Assistant United States Attorney, with
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whom Charles E. Fitzwilliam, United States Attorney, was on brief for
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appellee.
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COFFIN, Senior Circuit Judge. Elvis Torres Colon appeals
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from a judgment of the United States District Court for the
District of Puerto Rico granting forfeiture to the government of
real property he owned. After reviewing the record, we affirm.
I. Background
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In March 1992, the United States initiated a forfeiture
action against defendant property, One Urban Lot located at Road
143 K. 36.1 Bauta Abajo Ward, Orocovis, Puerto Rico, under 21
U.S.C. 881(a)(6), (a)(7) and 18 U.S.C. 981(a)(1)(A).1 The
government alleged that this property had been used by claimant
Torres Colon as a meeting place to discuss an illegal drug
distribution scheme and that he bought it with proceeds traceable
to his drug transactions for the purpose of laundering the
money.2 Torres Colon subsequently was prosecuted for his
alleged involvement in the drug distribution scheme. On January
20, 1993, a jury acquitted him of all criminal charges.
Nine days later, a bench trial was held in the civil
forfeiture action against the defendant property. In this case,
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121 U.S.C. 881(a)(6) and (a)(7) are part of the
Comprehensive Drug Abuse Control and Prevention Act, and provide
for forfeiture to the government of property connected with
illegal drug transactions. 18 U.S.C. 981(a)(1)(A) is part of
the Money Laundering Control Act, and also provides for
forfeiture of property traceable to money laundering
transactions.
2Torres Colon was alleged to have participated in three
separate schemes with one or two partners whereby one of the
partners would order controlled substances through legitimate
drug wholesalers in Miami, Florida, sometimes using fraudulent
registration certificates from the federal Drug Enforcement
Administration, and Torres Colon would resell these drugs in New
Jersey and Pennsylvania.
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the district court found that between 1989 and 1991, Torres Colon
was involved in three illegal drug distribution schemes that
brought in more than one million dollars in proceeds. Although
he reported no income between 1986 and 1988, and less than
$24,000 total income for 1989 and 1990, he managed to support a
family with three small children, and, in 1990, to buy defendant
property for more than $25,000. The court also found that during
this period, Torres Colon made many bank deposits of several
thousand dollars, and that the planning meeting for one of the
drug distribution schemes took place at defendant property.
Based on these findings, the court ordered that the property be
forfeited to the government.
Torres Colon contests this judgment on three grounds. He
argues that defendant property was misidentified in the
complaint, thus invalidating the court's judgment. He also
claims that the district court erred in refusing to shift the
burden of proof back to the government after his acquittal in the
related criminal case. Finally, he challenges the district
court's factual findings as unsupported, particularly to the
extent that they rely on government witnesses whose testimony, he
claims, was not credible. We consider these arguments in turn.
II. Identification of the Property
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Torres Colon has pointed out for the first time on appeal
that the government's complaint in this case contained
descriptions of two different pieces of property. In the
caption, the defendant property is identified as "One Urban Lot
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Located at Road 143 K. 36.1 Bauta Abajo Ward, Orocovis, Puerto
Rico." The description of the property in subpart (A), however,
refers to an entirely different property, in a different city in
Puerto Rico. Torres Colon argues that this discrepancy made it
impossible for him to know which property was subject to
forfeiture, and thus invalidates the forfeiture action.
We first note that appellant waived this argument by failing
to raise it in the court below. Poliquin v. Garden Way, Inc.,
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989 F.2d 527, 531 (1st Cir. 1993). He may not raise it for the
first time before this court, absent a showing that a grave
miscarriage of justice would result. Id.; Johnston v. Holiday
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Inns, Inc., 595 F.2d 890, 894 (1st Cir. 1979). He falls far
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short of meeting this standard.
Indeed, even were this claim properly before us, Torres
Colon's contention that the government failed to identify the
forfeited property with sufficient particularity would fail.
Admiralty Rule C(2) of the Supplemental Rules for Certain
Admiralty and Maritime Claims, applicable to both forfeiture
statutes, sets forth the level of detail required in describing
the property subject to forfeiture.3 21 U.S.C. 881(b); 18
U.S.C. 981(b)(2); United States v. Approximately 2,538.85
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Shares of Stock, 988 F.2d 1281, 1283 (1st Cir. 1993). This rule
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provides that a complaint "shall describe with reasonable
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3The Federal Rules of Civil Procedure apply to interstitial
matters or where Admiralty Rules are silent. In the event of a
conflict, the Admiralty Rules control. 384-390 West Broadway,
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964 F.2d at 1247 n.4.
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particularity the property that is the subject of the action."
The complaint should achieve a "meaningful level of detail" in
its description, which is sufficient to put the claimant on
notice that his property is at risk of forfeiture. 384-390 West
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Broadway, 964 F.2d at 1248.
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Despite the mismatch between the property identified in the
caption and the description that appears in subpart (A), we are
confident that no significant confusion occurred. The complaint
consistently refers to the defendant property as that located at
the address in Orocovis, Puerto Rico, pointing to this particular
property as that used to facilitate the commission of particular
violations of the drug and money laundering laws, and bought with
the proceeds of illegal drug trafficking activities. Following
each complete description of the Orocovis address, the complaint
refers indirectly to the description in subpart (A) as "Defendant
A in caption." Such abbreviated reference does not override the
government's clear focus on the Orocovis property. It seems
inescapable to us, therefore, that Torres Colon was on notice
that this particular property was at risk of forfeiture.
We note, in addition, that Torres Colon's own actions
support this conclusion. For example, in his answer to the
forfeiture complaint, Torres Colon affirmed that he had a "real
and personal property interest" in the property at Road 143 K.
36.1 Bauta Abajo Ward, Orocovis, Puerto Rico, and had forfeited
the contents of the residence at this address. Also, the
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government successfully served notice on both appellant and the
defendant property at this address.
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III. Shift in the Burden of Proof
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In forfeiture actions brought pursuant to 21 U.S.C. 881(a)
and 18 U.S.C. 981, the allocation of the parties' burdens of
proof is provided by the customs laws. See 21 U.S.C. 881(d)
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(incorporating procedures for customs forfeitures); 18 U.S.C.
981(d) (same); 19 U.S.C. 1615 (codifying customs forfeiture
procedures); United States v. Parcels of Property Located at 255
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Broadway, Hanover, No. 92-1776, slip op. at 2 (1st Cir. Nov. 24,
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1993). Under these rules, the government has the initial burden
of demonstrating probable cause to believe that the property was
used for a specified illegal purpose. Id. at 2-3; United States
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v. A Certain Parcel of Land, Moultonboro, 781 F. Supp. 830, 833
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(D.N.H. 1992). Once the government has made this showing, the
burden shifts to the claimant to show, by a preponderance of the
evidence, "that the property was not used in violation of the
statute or that it was so used without the owners' knowledge or
consent." United States v. Parcel of Land & Residence at 28
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Emery Street, 914 F.2d 1, 3 (1st Cir. 1990); see also
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Moultonboro, 781 F. Supp. at 833.4 On December 28, 1992, the
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district court granted the government's pre-trial motion to shift
the burden of proof to the claimant to defend his property.
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4The statutory burden shifting procedures stack the deck
heavily in favor of the government. To show probable cause to
forfeit, the government need demonstrate only a "reasonable
ground for belief of guilt[,] supported by less than prima facie
proof but more than mere suspicion" that the property is subject
to forfeiture. 28 Emery Street, 914 F.2d at 3 (quoting United
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States v. $250,000 in United States Currency, 808 F.2d 895, 897
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(1st Cir. 1987)). The claimant, by contrast, must establish a
defense to forfeiture by a preponderance of the evidence. Id.
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Following his later acquittal in the related criminal case,
Torres Colon asked the district court to reshift the burden of
proof in the forfeiture trial back to the government. He claims
that the court erred in refusing to do so. While his argument is
facially appealing, it has no basis in law.
Torres Colon argues, in essence, that his acquittal in the
criminal case established a presumption that the property was not
used to facilitate a criminal venture, and therefore, that the
district court was required to shift back to the government the
burden of proving that the property was used for a specified
illegal purpose. Section 881 and 981 forfeitures are, however,
civil in nature, and the burden of proof differs from that in
criminal trials. An acquittal in the criminal charge at issue
represents a determination that the proof was not sufficient to
overcome all reasonable doubt against the accused, while in the
civil case, the government needs only to meet the much lighter
probable cause burden prescribed by statute. See United States
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v. One Parcel of Real Property Known as Plat 20, Lot 17, Great
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Harbor Neck, New Shoreham, Rhode Island, 960 F.2d 200, 205 (1st
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Cir. 1992) (noting government's "relatively light burden" to show
probable cause). The outcome of related criminal proceedings
against Torres Colon therefore does not affect the probable cause
determination, or the burden shifting, in the civil forfeiture
trial. See, e.g., United States v. Land and Bldg. at 2 Burditt
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Street, 924 F.2d 383, 385-86 (1st Cir. 1991).
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IV. The District Court's Factual Findings
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Torres Colon also challenges the district court's factual
findings as unsupported by credible evidence. His primary claim
is that the district court erred in relying on the testimony of
government witnesses regarding his participation in the alleged
drug diversion scheme, and the relationship of defendant property
to this scheme. Torres Colon contends that much of this
testimony was not believable, and was contradicted by other
witnesses.
We review the district court's findings of facts in a bench
trial only for clear error. Fed. R. Civ. P. 52(a); Dedham Water
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Co. v. Cumberland Farms Dairy, 972 F.2d 453, 457 (1st Cir. 1992).
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Under this standard, we must affirm the district court unless,
after reviewing the entire record, this court "is left with the
definite and firm conviction that a mistake has been committed."
United States v. United States Gypsum Co., 333 U.S. 364, 395
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(1948). When the record evidence supports conflicting
inferences, the district court's choice from among them cannot be
clearly erroneous. Cumberland Farms, 972 F.2d at 462.
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Furthermore, when factual findings are based on determinations
regarding the credibility of witnesses, Rule 52(a) demands even
greater deference to the district court. Rodriguez-Morales v.
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Veterans' Administration, 931 F.2d 980, 982 (1st Cir. 1991).
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Our review of the record finds ample support for the
district court's factual findings. The district court was
entitled to believe witness testimony that established that
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Torres Colon participated in illegal drug distribution schemes
involving more than one million dollars of drugs; that he
received a substantial portion of the proceeds from the sale of
these drugs; and that he purchased defendant property with cash.
The district court also was entitled to believe witness testimony
that the planning meeting for one of the drug distribution
schemes took place at defendant property, notwithstanding the
competing testimony of another witness that this meeting took
place at a restaurant in another town.
In addition, the evidence that Torres Colon bought defendant
property at a time when he had three dependent children and
little legitimate income, together with evidence that he received
substantial illegal drug proceeds, supports the lower court's
conclusion that it was reasonable to believe that defendant
property was bought with profits from his drug transactions.
V. Torres Colon's Post-Argument Motion
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Two weeks after oral argument in this case, Torres Colon
filed a pro se motion in which he argued that he did not buy the
defendant property in February 1990, as the district court found,
but nine months later, on September 11, 1990. He attached a copy
of the deed as proof of this claim.
At trial, the government put into evidence a registry
certificate which established a February 7, 1990 purchase date
for defendant property. From our review of the record, it
appears that that certificate applies to the property erroneously
described in subpart (A) of the complaint. It therefore appears
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that the deed provided by Torres Colon with his post-argument
motion accurately reflects a September purchase date for
defendant property.
This discrepancy does not strengthen Torres Colon's position
on appeal, however. At trial, both parties proceeded on the
assumption that defendant property, and not the property
described in subpart (A) of the complaint, was the property
subject to forfeiture. Thus, neither the incorrect description
in subpart (A), nor the use of the wrong registry certificate,
caused any significant confusion. As noted above, in his answer
to the forfeiture complaint, Torres Colon affirmed that he had a
"real and personal property interest" in the property at Road 143
K. 36.1 Bauta Abajo Ward, Orocovis, Puerto Rico, and had
forfeited the contents of the residence at this address. Nor did
Torres Colon object at trial that defendant property was not the
one purchased on February 7, 1990.
In addition, the evidence at trial amply supported
forfeiture of defendant property, regardless of when it was
purchased. The evidence showed that between 1989 and 1991,
Torres Colon and his partners handled illegal drugs whose street
value was more than one million dollars, and that Torres Colon
received a disproportionately large share of these proceeds.
Other evidence revealed that Torres Colon's total reported income
for 1989 and 1990 was less than $24,000. During this period,
while also supporting a family with three small children, Torres
Colon bought property for which he paid more than his reported
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earnings. This proof fully supports the district court's finding
of probable cause to believe that defendant property was bought
with the proceeds of Torres Colon's illegal involvement in drug
trafficking. Thus, even though the government introduced the
wrong registry certificate at trial, no grave injustice was done
in this case.
The decision of the district court ordering forfeiture to
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the government of defendant property is therefore affirmed.
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