Harmon v. United States

Opinion

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* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.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.

2 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.