Levesque v. United States

• Court: District Court, D. New Hampshire
• Decided: June 3, 1996
• Docket: CV-95-560-M
• Status: Published

Opinion

Levesque v . United States CV-95-560-M 06/03/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jonathan Levesque, Plaintiff, v. Civil N o . 95-560-M United States of America, Defendant.

O R D E R

Plaintiff, Jonathan Levesque, brings this civil rights

action against defendant, the United States, seeking to remedy an

alleged violation of the privilege against compelled self

incrimination guaranteed him by the Fifth Amendment. Levesque is

presently proceeding pro se and in forma pauperis and now moves

the court to appoint him counsel pursuant to 28 U.S.C. § 1915(d).

For the reasons discussed below, Levesque's motion is denied.

I. BACKGROUND

On December 1 0 , 1994, the Drug Enforcement Agency ("DEA")

seized for forfeiture $11,395.88 in United States currency

purportedly owned by Levesque because it was allegedly used in or

acquired as a result of a drug-related criminal offense for which

Levesque was arrested and charged. See 21 U.S.C. § 881(a)(6). Levesque did not exercise his right to contest the forfeiture

either administratively or in court within the time period

allowed. As a result, Levesque's property was forfeited.

Levesque has since pled guilty to one count of conspiracy to

distribute marijuana, 21 U.S.C. § 846, and is awaiting

sentencing. He has no other criminal charges pending.

Levesque claims that he was exercising his privilege against

compelled self incrimination when he declined to contest the

forfeiture of his property. In order to contest forfeiture, he

says, he would have been compelled to make self-incriminating

statements. The specter of self incrimination now removed by his

plea bargain in the related criminal case, Levesque brings this

civil rights action against the government in order to remedy the

alleged infringement of his Fifth Amendment rights. Proceeding

pro se and in forma pauperis, he requests the court to appoint

counsel for him pursuant to 28 U.S.C. § 1915(d).

II. DISCUSSION

The federal statute governing proceedings in forma pauperis,

28 U.S.C. § 1915(d), provides that, with respect to civil

litigants, "[t]he court may request an attorney to represent any

such person [who is otherwise] unable to employ counsel." Id.

2 There is no absolute constitutional right to free counsel in a

civil case. DesRosiers v . Moran, 949 F.2d 1 5 , 23 (1st Cir.

1991). Therefore, the decision whether to appoint counsel lies

within the discretion of the trial court. Feliciano v . Dubois,

846 F. Supp. 1033, 1040 (D. Mass. 1994).

The First Circuit has provided guidance for district courts

to follow when exercising that discretion. See id. The court

should appoint counsel if the moving party can demonstrate

"exceptional circumstances." Id.; DesRosiers, 949 F.2d at 2 4 .

"To determine whether there are exceptional circumstances

sufficient to warrant the appointment of counsel, a court must

examine the total situation, focusing, inter alia, on the merits

of the case, the complexity of the legal issues, and the

litigant's ability to represent himself." DesRosiers, 949 F.2d

at 2 4 . Here, all of these factors militate against appointing

counsel for Levesque.

The merits of Levesque's claim are weak. Certainly,

Levesque could have asserted his privilege against compelled self

incrimination if he had contested forfeiture. United States v .

$250,000 in U.S. Currency, 808 F.2d 895, 901 (1st Cir. 1987).

This does not mean, however, that the forfeiture would have been

barred because of the possibility that Levesque would be

3 disadvantaged by remaining silent. Id. Rather, when a claimant

shows that forfeiture would genuinely prejudice his Fifth

Amendment rights, the court presiding over the forfeiture may,

through the exercise of its discretion, seek alternative means of

accommodating both the claimant's rights and the government's

interest in the forfeiture. Id. Here, Levesque did not raise

his Fifth Amendment concerns at the time of forfeiture. And,

since "[a] blanket assertion of the privilege is no defense to

[a] forfeiture proceeding," id., Levesque is unlikely to prevail

in this collateral attack.

In addition, Levesque has, thus far, shown he is capable of

representing himself. He has displayed relative familiarity with

the legal process, drafted intelligible pleadings, and provided

citations to support his relatively straightforward legal

theories. See DesRosiers, 949 F.2d at 2 4 . Finally, the court

notes that this case has not yet been scheduled for trial.

During the pretrial stages, as in a bench trial, the "court is .

. . able to ensure that self-representation does not become an

unendurable burden." Id. Therefore, at least through the pre-

trial stages of this case, the court will exercise its discretion

not to appoint counsel to represent Levesque. If the case does,

4 in fact, proceed to trial, the court will entertain a renewed

request by plaintiff for appointed counsel.

III. CONCLUSION

Because the merits of Levesque's case are not strong and he is capable of presenting the straightforward legal issues

involved, Levesque's motion for appointed counsel (document n o .

5 ) is denied.

SO ORDERED.

Steven J. McAuliffe United States District Judge

June 3 , 1996

cc: Jonathan Levesque