
USCA1 Opinion

	




          April 8, 1994         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-2054                              UNITED STATES OF AMERICA,                                 Plaintiff-Appellee,                                          v.                          CERTAIN REAL PROPERTY LOCATED AT,                           330 FERN STREET, BANGOR, ET AL.,                                Defendants-Appellees.                                 ____________________                                     JERRY HOWARD                                 Defendant-Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Coffin, Senior Circuit Judge,                                    ____________________                            and Torruella, Circuit Judge.                                           _____________                                _____________________               Schuyler G. Steele for appellant.               __________________               Michael M.  DuBose, Assistant  United States Attorney,  with               __________________          whom Jay P. McCloskey,  United States Attorney, was on  brief for               ________________          appellee.                                 ____________________                                 ____________________                    Per Curiam.   Jerry Howard ("Howard"),  record owner of                    __________          the  property  at  issue  in  this  case,  appeals  a  decree  of          forfeiture entered by the district court below.                    On February 2, 1992, the United States Government filed          a  Complaint for  forfeiture  pursuant to  21 U.S.C.    881(a)(7)          against real  property located at 330 Fern Street, Bangor, Maine.          The matter arises from the  execution of a search warrant  by law          enforcement  agents  who  found   70  growing  marijuana  plants,          assorted   drying  marijuana,   marijuana   seeds,  and   various          paraphernalia related  to the growing of marijuana  plants in the          basement of the  property in question.   Thereafter the occupants          of 330  Fern Street,  John and Susan  Burke, were  indicted by  a          federal  grand jury in Bangor,  Maine on charges of manufacturing          marijuana in violation of 21 U.S.C.   841(a)(1).1                    Howard appeals  from the  decree of  forfeiture whereby          the court entered  a default judgment  after trial was  continued          three  times at Howard's request, and Howard had failed to answer          interrogatories,  to appear  for  a pretrial  conference or  jury          selection, or to  respond to the court's order to  show cause why          default judgment should not  be entered, and after the  court had          denied the  Government's first motion  for entry  of default,  in          order to  afford Howard  "one final  opportunity to present  what          appeared to be a reasonable 'innocent landowner' defense."                                        ____________________          1    John Burke  later  pled  guilty  in  federal court  and  was          sentenced  to  a  30  month  term of  imprisonment,  three  years          supervised release,  and a $10,000  criminal fine.   His sentence          was affirmed on appeal.  See United States v. Burke, 999 F.2d 596                                   ___ _____________    _____          (1st Cir. 1993).                                         -2-                                          2                    The district court entered  final judgment in this case          after Howard's  attorney represented  to Magistrate  Judge Eugene          Beaulieu  that  he had  no reason  to  believe that  Howard would          appear if ordered once  again to do so, and  after the Magistrate          Judge issued a recommended  decision that the Government's second          motion  for entry of default be granted.  Thereafter Howard filed          a  Rule 60(b)  motion seeking  relief  from  the judgment,  which          motion  was  denied and  from which  denial  Howard appeals.   We          affirm the district court's ruling.                    Motions to set aside default judgments pursuant to Fed.          R. Civ. P.  60(b) are addressed  to the  sound discretion of  the          trial  court and are reviewed  on appeal for  abuse of discretion          only.   Rodr guez-Antuna v. Chase  Manhattan Bank Corp., 871 F.2d                  ________________    ___________________________          1, 3 (1st Cir. 1989).                    "Rule 60(b)(1) permits a district court to set aside an          order  or  judgment upon  a  finding  of 'mistake,  inadvertence,          surprise,  or excusable  neglect.'   To prevail  on a  Rule 60(b)          motion,  the party seeking to have the judgment vacated bears the          heavy burden  of showing both a  good reason for the  default and                                   ____          the  existence  of a  meritorious  defense."   United  States  v.                                                         ______________          Proceeds  of Sale of 3,888 Pounds Atlantic Sea Scallops, 857 F.2d          _______________________________________________________          46, 48 (1st Cir. 1988) (citations omitted and emphasis added).                    The district court correctly found that:                      Howard  has  established  a   history  of                      recalcitrance   in   this  action   which                      includes  cavalierly  ignoring  deadlines                      and  orders issued  by the  court. .  . .                      Such   conduct    does   not   constitute                      "excusable neglect" or "any  other reason                                         -3-                                          3                      justifying  relief" contemplated  by Rule                      60(b).                    Howard has failed  to meet  this high  standard and  on          appeal, has  made no attempt to give  any reason for the default.          The district court did not abuse its discretion.                    Affirmed.                    ________                                         -4-                                          4
