United States v. Torres-Colon

Opinion

USCA1 Opinion

January 18, 1994        [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

        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,
                                _____________________

                                 ELVIN TORRES-COLON,

                                 Claimant, Appellant.
                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]
                                              ___________________

                                 ____________________

                                        Before

                               Torruella, Circuit Judge,
                                          _____________
                            Coffin, Senior Circuit Judge,
                                    ____________________
                              and Boudin, Circuit Judge.
                                          _____________

____________________

            Jose R. Franco-Rivera for appellant.
            _____________________
            Jose  F.  Blanco-Torres, Assistant  United  States  Attorney, with
            _______________________
        whom Charles E. Fitzwilliam, United  States Attorney, was on brief for
             ______________________
        appellee.
                                 ____________________

____________________

COFFIN,  Senior Circuit Judge.   Elvis Torres  Colon appeals
                        ____________________

          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
                                        __________

               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,
                              
          ____________________

               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.  

                                         -2-

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
                              ______________________________

               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.,
                                             ________    _________________

          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
                                                  ___  ________     _______

          Inns, Inc., 595  F.2d 890,  894 (1st  Cir. 1979).   He falls  far
          __________

          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
                                ______________      _______________________

          Shares of Stock, 988 F.2d 1281, 1283 (1st Cir. 1993).   This rule
          _______________

          provides  that  a  complaint   "shall  describe  with  reasonable

____________________

               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,
                                                    ______________________
          964 F.2d at 1247 n.4.

                                         -4-

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
                                                               ____________

          Broadway, 964 F.2d at 1248.
          ________

               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
                                ____________________________

               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)
                                                    ___

          (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
                        _____________    __________________________________

          Broadway, Hanover, No. 92-1776, slip op. at 2  (1st Cir. Nov. 24,
          _________________

          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
                                                 ___          _____________

          v. A Certain Parcel of  Land, Moultonboro, 781 F. Supp.  830, 833
             ______________________________________

          (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
                       _____________     __________________________________

          Emery  Street,  914   F.2d  1,  3  (1st  Cir.   1990);  see  also
          _____________                                           ___  ____

          Moultonboro, 781 F. Supp. at 833.4      On December 28, 1992, the
          ___________

          district court granted the government's pre-trial motion to shift

          the  burden of  proof to  the  claimant to  defend his  property.
                              
          ____________________

               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
                           _______________                   _______ ______
          States v. $250,000  in United States Currency, 808  F.2d 895, 897
          ______    ___________________________________
          (1st Cir.  1987)).  The  claimant, by contrast, must  establish a
          defense to forfeiture by a preponderance of the evidence.  Id.
                                                                     ___

                                         -7-

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
                                                          ___ _____________

          v. One Parcel  of Real Property Known  as Plat 20, Lot  17, Great
             ______________________________________________________________

          Harbor Neck, New  Shoreham, Rhode Island, 960 F.2d  200, 205 (1st
          ________________________________________

          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
                  ___  ____   _____________    ____________________________

          Street, 924 F.2d 383, 385-86 (1st Cir. 1991).
          ______

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IV.  The District Court's Factual Findings
                           _____________________________________

               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
                                                               ____________

          Co. v. Cumberland Farms Dairy, 972 F.2d 453, 457 (1st Cir. 1992).
          ___    ______________________

          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
          ______________     _________________________

          (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.
                                  __________________

          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.
                                                       _________________

          Veterans' Administration, 931 F.2d 980, 982 (1st Cir. 1991).  
          ________________________

               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
                           ___________________________________

               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

-11-

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
               ____________________________________________________________

          the government of defendant property is therefore affirmed.
          ___________________________________________________________

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