United States v. $16,540 US Currency

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 31, 2001
• Docket: 01-10238
• Status: Unpublished

Opinion

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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 -2-

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 -3-

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 -4-

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 -5-

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.