MAINE	SUPREME	JUDICIAL	COURT	                                                    Reporter	of	Decisions	
Decision:	      2018	ME	126	
Docket:	        And-18-17	       	
Submitted		
				On	Briefs:	 July	24,	2018	   	      	       	       	      	       	
Decided:	       August	23,	2018	
                                                                                                       	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HJELM,	JJ.	
	
	
                                        STATE	OF	MAINE	
                                                	
                                               v.	
                                                	
                                       JERRY	PHILOGENE,	
	         	     	       	       	       	    Party-in-Interest	
	
                                     $16,545	U.S.	Currency,	
	   	   	               	       	      	    Defendant	in	rem	
	
	
ALEXANDER,	J.	

	         [¶1]		Jerry	Philogene	appeals	from	a	judgment	entered	by	the	Superior	

Court	 (Androscoggin	 County,	 Horton,	 J.)	 denying	 his	 motion	 to	 set	 aside	 a	

default	and	for	relief	from	a	judgment.		See	M.R.	Civ.	P.	55(c),	60(b).		The	default	

judgment	 extinguished	 Philogene’s	 property	 rights,	 as	 a	 party-in-interest,	 to	

$16,545	in	cash	seized	as	part	of	a	civil	asset	forfeiture	proceeding,	see	15	M.R.S.	

§§	5821-5822	(2017),1	initiated	following	a	motor	vehicle	stop	and	the	filing	of	

criminal	charges	related	to	Philogene’s	operation	of	a	motor	vehicle.	


    1		These	statutes	were	recently	amended.		See	P.L.	2017,	ch.	409,	§	B-1	(effective	May	2,	2018)	(to	

be	codified	at	15	M.R.S.	§§	5821,	5821-B).	
2	

         [¶2]		Philogene	contends,	among	other	arguments,	that	the	court	abused	

its	discretion	when	it	denied	his	motion	for	relief	from	judgment,	arguing	that	

he	demonstrated	excusable	neglect	because	(1)	he	believed	that	the	attorney	

representing	him	with	regard	to	the	seized	money	in	a	parallel	criminal	matter	

also	represented	him	in	the	civil	forfeiture	proceeding;	(2)	he	was	unable,	while	

in	jail,	to	file	the	necessary	documents	or	respond	to	the	State’s	filings,	resulting	

in	his	default;	 and	(3)	the	State	lacked	 probable	cause	to	seize	the	cash.		 We	

vacate	the	judgment.	

                                          I.		CASE	HISTORY	

         [¶3]		The	facts	of	this	case	are	drawn	from	the	records	of	the	overlapping	

criminal	and	civil	matters	that	began	with	the	arrest	of	Jerry	Philogene	and	the	

seizure	of	his	property.2		On	March	7,	2017,	an	Androscoggin	County	Sherriff’s	

Deputy	 stopped	 a	 vehicle	 Philogene	 was	 operating	 for	 erratic	 driving.	 	 The	

officer	determined	that	Philogene	was	not	the	owner	of	the	vehicle,	did	not	have	

permission	 to	 use	 the	 vehicle,	 and	 had	 a	 suspended	 Massachusetts	 driver’s	



     2		Although	the	record	relating	to	Philogene’s	criminal	case	was	not	included	in	the	appendix	on	

appeal,	the	appendix	does	include	police	reports,	search	warrant	affidavits,	and	the	transcript	from	
the	December	14,	2017,	motion	hearing,	all	of	which	provide	facts	relating	to	Philogene’s	arrest	and	
the	resolution	of	his	criminal	matter.		Additionally,	a	copy	of	the	criminal	docket,	of	which	the	motion	
court	 took	 judicial	 notice,	 was	 obtained	 and	 used	 for	 further	 clarity	 regarding	 the	 criminal	
proceedings	 against	 Philogene.	 	 See	 M.R.	 Evid.	 201;	 Guardianship	 of	 Jewel	 M.,	 2010	 ME	 80,	 ¶	24,	
2	A.3d	301	(stating	that	this	Court	can	take	judicial	notice	of	docket	entries	in	other	cases.).		
                                                                                                    3	

license.		The	officer	arrested	Philogene	and,	after	conducting	a	search	incident	

to	the	arrest,	seized	$16,545	in	cash	found	in	Philogene’s	pockets.3			

       [¶4]	 	 On	 March	 8,	 2017,	 the	 State	 filed	 a	 criminal	 complaint	 against	

Philogene	 for	 theft	 by	 unauthorized	 use	 of	 property	 (Class	 D),	 17-A	 M.R.S.	

§	360(1)(A)	 (2017),	 and	 operating	 after	 license	 suspension	 (Class	 E),	 29-A	

M.R.S.	§	2415	(2017).		Philogene	was	provided	a	court-appointed	attorney	and	

released	on	bail.		On	April	7,	2017,	Philogene,	through	counsel,	filed	a	motion	

for	 return	 of	 the	 seized	 property,	 contending	 that	 no	 connection	 existed	

between	 the	 money	 seized	 and	 the	 charges	 filed	 against	 him.	 	 See	 M.R.U.	

Crim.	P.	41(j).			

       [¶5]		On	April	28,	2017,	Philogene	was	arrested	a	second	time	after	law	

enforcement	authorities	executed	a	search	warrant	at	a	home	in	Mexico	where	

Philogene	 was	 visiting.	 	 Authorities	 discovered	 scales,	 drug	 packaging	

materials,	and	86	grams	of	cocaine	in	the	home.		At	the	time	of	the	April	search,	

Philogene	was	found	to	be	in	possession	of	8.4	grams	of	heroin	and	17.4	grams	

of	cocaine.			




   3		In	addition	to	the	money	found	on	Philogene,	the	officer	also	later	found	a	knife	in	Philogene’s	

possession.		Following	the	execution	of	a	search	warrant	for	the	vehicle	on	March	8,	2017,	officers	
discovered	1.91	ounces	of	marijuana,	a	pill	bottle	belonging	to	an	acquaintance	of	Philogene,	and	a	
cell	phone.			
4	

        [¶6]		On	June	8,	2017,	the	State	amended	its	criminal	complaint	against	

Philogene	 to	 include	 two	 counts	 of	 conspiracy	 to	 commit	 trafficking	 of	

scheduled	 drugs	 (Class	 B),	 17-A	 M.R.S.	 §	 1105-A(1)(D),	 (H)	 (2017),	 and	 one	

count	 of	 criminal	 forfeiture	 relating	 to	 the	 cash	 seized	 on	 March	 7,	 15	M.R.S.	

§	5826	(2017).			

        [¶7]		Also	on	June	8,	the	State	filed,	in	the	Superior	Court	(Androscoggin	

County),	 a	 separate	 civil	 asset	 forfeiture	 action	 against	 the	 $16,545,	 as	

defendant	 in	 rem,	 and	 Philogene,	 as	 a	 party-in-interest.	 	 See	 15	 M.R.S	

§§	5821-5822.	 	 The	 State	 served	 Philogene	 with	 a	 summons	 for	 the	 civil	

forfeiture	at	the	courthouse	on	June	8	 while	he	was	 in	court	for	the	criminal	

matter.4		No	notice	of	the	civil	matter	was	given	to	his	criminal	attorney.			

        [¶8]		On	June	19,	2017,	the	State	filed	an	ex	parte	motion	to	impound	the	

$16,545	during	the	pendency	of	the	civil	action.		See	15	M.R.S.	§	5822(6).		The	

court	(MG	Kennedy,	J.)	granted	that	motion	on	June	27,	2017.			

        [¶9]		The	following	day,	on	June	28,	2017,	Philogene,	accompanied	by	his	

court-appointed	attorney,	made	his	initial	appearance	on	the	three	additional	



    4		The	record	indicates	that	Philogene	was	in	court	on	June	8	for	a	hearing	on	his	motion	for	return	

of	 seized	 property,	 but	 that	 the	 court	 continued	 the	 motion	 hearing	 until	 June	 28,	 2017,	 to	 be	
considered	 along	 with	 the	 State’s	 motions	 to	 revoke	 Philogene’s	 bail.	 	 The	 summons	 for	 the	 civil	
forfeiture	action	stated	that	Philogene	had	twenty	days	to	answer	the	State’s	complaint	and	warned	
that	judgment	by	default	would	result	if	he	failed	to	do	so.		See	M.R.	Civ.	P.	4(a),	12(a).			
                                                                                                     5	

criminal	charges	alleged	in	the	State’s	amended	complaint.		At	the	hearing,	the	

court	 discussed	 Philogene’s	 motion	 for	 return	 of	 seized	 property,	 see	 M.R.U.	

Crim.	 P.	 41(j),	 and	 ruled	 that	 the	 criminal	 motion	 was	 “moot	 pending	 the	

outcome	 of	 the	 civil	 forfeiture	 action.”	 	 During	 this	 proceeding,	 the	 State	

provided	 Philogene’s	 attorney	 with	 a	 copy	 of	 the	 court’s	 ex	 parte	 order	 to	

impound.			

       [¶10]	 	 On	 July	 10,	 2017,	 the	 State,	 without	 notice	 to	 the	 attorney	

representing	Philogene	in	his	criminal	matters,	filed	an	affidavit	and	request	for	

default	 judgment	 after	 Philogene	 failed	 to	 appear	 or	 defend	 in	 the	 civil	

forfeiture	 action. 5		 See	 M.R.	 Civ.	 P.	 55.	 	 On	 July	 13,	 2017,	 the	 clerk	 entered	 a	

default	and,	on	the	same	day,	the	court	(MG	Kennedy,	J.)	entered	a	judgment	by	

default	against	Philogene,	as	a	party-in-interest,	and	the	$16,545,	as	defendant	

in	 rem.	 	 See	 M.R.	 Civ.	 P.	 55(b)(2);	 15	 M.R.S.	 §	 5822(5).	 	 Although	 Philogene’s	

motion	for	return	of	seized	property	remained	pending,	on	July	28,	2017,	the	

court	 issued	 a	 final	 order	 dispersing	 the	 forfeited	 $16,545	 to	 two	 local	 law	

enforcement	agencies.		See	15	M.R.S.	§	5822(4)(A).			




   5		The	record	indicates	that	a	court	clerk	asked	the	State	on	or	before	July	12,	2017,	to	provide	

notice	of	the	State’s	request	for	default	judgment	to	Philogene’s	criminal	attorney.		The	State	replied	
that,	pursuant	to	15	M.R.S.	§	5822(5)	(2017)	and	M.R.	Civ.	P.	55(b)(2),	it	was	not	required	to	provide	
notice	to	an	attorney	who	had	not	appeared	in	a	civil	forfeiture	proceeding.			
6	

          [¶11]	 	 On	 October	 13,	 2017,	 three	 months	 after	 entry	 of	 the	 default	

judgment,	the	attorney	representing	Philogene	in	his	criminal	matters	entered	

an	appearance	in	the	civil	forfeiture	proceeding,	filed	an	answer	to	the	State’s	

petition	for	asset	forfeiture,	and	filed	a	motion	to	set	aside	the	default	and	for	

relief	from	the	judgment,	see	M.R.	Civ.	P.	55(c),	60(b).		The	court	scheduled	a	

hearing	on	the	motion,	with	notice	provided	to	both	parties.6			

          [¶12]	 	 On	 December	 14,	 2017,	 after	 the	 hearing,	 the	 court	 (Horton,	 J.)7	

denied	 Philogene’s	 motion	 to	 set	 aside	 default	 and	 for	 relief	 from	 judgment.		

The	court	issued	oral	findings,	concluding	that	Philogene’s	assumption	that	his	

criminal	 attorney	 was	 representing	 him	 in	 the	 civil	 forfeiture	 matter	 did	 not	

constitute	excusable	neglect	and	that	Philogene’s	claim	that	he	possessed	the	

$16,545	in	order	to	purchase	a	car	for	his	sister	did	not	“rise	to	the	level”	of	a	

meritorious	 defense.	 	 The	 court’s	 opinion	 did	 not	 address	 the	 still	 pending	

motion	for	return	of	seized	property	in	the	criminal	matter.8			




     6		On	November	3,	2017,	the	State	objected	to	Philogene’s	motion	and	requested	that	the	court	

decline	to	hold	a	hearing.			
     7		It	is	not	clear	from	the	docket	why	the	motion	to	set	aside	the	default	and	for	relief	from	the	

judgment	was	not	heard	by	the	judge	who	entered	the	default	judgment.	
     8		 Philogene	 filed	a	 motion,	 pursuant	to	 M.R.	 Civ.	 P.	 52,	 asking	 the	 court	 to	 find	that	 Philogene	

“understandably	believed”	that	his	counsel	represented	him	on	both	the	civil	and	criminal	actions	
involving	his	$16,545,	but	the	court	declined	to	make	that	finding.		See	M.R.	Civ.	P.	52(a).			
                                                                                                                 7	

        [¶13]		Philogene	filed	a	timely	notice	of	appeal.9		See	M.R.	App.	P.	2B(c)(1).				

                                          II.		LEGAL	ANALYSIS	

        [¶14]	 	 Maine	 Rule	 of	 Civil	 Procedure	 60(b) 10	provides	 in	 relevant	 part	

that	“[o]n	motion	and	upon	such	terms	as	are	just,	the	court	may	relieve	a	party	

or	the	party’s	legal	representative	from	a	final	judgment	.	.	.	for	.	.	.	(1)	mistake,	

inadvertence,	surprise,	or	excusable	neglect.”		When	a	party	seeks	relief	from	a	

judgment	for	excusable	neglect	pursuant	to	Rule	60(b)(1),	the	party	must	file	a	

motion	 “not	 more	 than	 one	 year	 after	 the	 judgment,”	 M.R.	 Civ.	 P.	 60(b),	 and	

“bears	 the	 burden	 of	 proving	 that	 the	 judgment	 should	 be	 set	 aside,”	

Wooldridge	 v.	 Wooldridge,	 2008	 ME	 11,	 ¶	 6,	 940	 A.2d	 1082.	 	 To	 satisfy	 that	

burden	and	obtain	relief	from	a	default	judgment	pursuant	to	Rule	60(b)(1)	for	

excusable	neglect,	“a	party	must	show	(1)	a	reasonable	excuse	for	[the	party’s]	




   9		We	suspended	the	provisions	of	M.R.	App.	P.	7A	and	8	and	permitted	Philogene	to	file	a	letter	

explaining	 his	position	 that	 the	 trial	 court	 erred	 in	 denying	 his	 motion	 for	 relief	 from	 the	 default	
judgment.			
    10		Philogene	sought	relief	pursuant	to	M.R.	Civ.	P.	52(a)	and	60(b).		Because	a	“default	judgment	

can	only	be	set	aside	if	the	conditions	of	M.R.	Civ.	P.	60(b)	are	met,”	Ezell	v.	Lawless,	2008	ME	139,	
¶¶	16-17,	955	A.2d	202;	see	M.R.	Civ.	P.	55(c),	and	because	the	parties	and	the	court	dealt	with	the	
motion	at	the	hearing	as	a	motion	under	Rule	60(b)(1),	we	evaluate	Philogene’s	argument	pursuant	
to	the	Rule	60(b)	standard.	
8	

inattention	 to	 the	 court	 proceedings,	 and	 (2)	 a	 meritorious	 defense	 to	 the	

underlying	action.”		Haskell	v.	Haskell,	2017	ME	91,	¶	13,	160	A.3d	1176.		

      [¶15]		When	a	court’s	decision	is	supported	by	competent	evidence,	we	

review	 the	 denial	 of	 a	 Rule	 60(b)(1)	 motion	 for	 an	 abuse	 of	 discretion.		

Wells	Fargo	Bank,	N.A.	v.	White,	2015	ME	145,	¶	8,	127	A.3d	538.		Our	review	

“involves	 resolution	 of	 three	 questions:	 (1)	 are	 factual	 findings,	 if	 any,	

supported	by	the	record	according	to	the	clear	error	standard;	(2)	did	the	court	

understand	the	law	applicable	to	its	exercise	of	discretion;	and	(3)	given	all	the	

facts	 and	 applying	 the	 appropriate	 law,	 was	 the	 court’s	 weighing	 of	 the	

applicable	 facts	 and	 choices	 within	 the	 bounds	 of	 reasonableness."	 	 Haskell,	

2017	ME	91,	¶	12,	160	A.3d	1176.		We	will	set	aside	the	court’s	decision	“only	

if	the	failure	to	grant	the	relief	works	a	plain	and	unmistakable	injustice	against	

the	moving	party.”		Ezell	v.	Lawless,	2008	ME	139,	¶	19,	955	A.2d	202.	

A.	   Reasonable	Excuse	

      [¶16]	 	 Philogene	 contends	 that	 his	 inattention	 to	 the	 civil	 forfeiture	

proceeding	 was	 caused	 by	 both	 his	 incarceration	 at	 the	 time	 when	 the	

proceeding	was	initiated	and	his	belief	that	his	attorney	was	representing	him	

on	all	issues	involving	the	seized	$16,545.		He	argues	that	he	can	“barely	read	
                                                                                         9	

and	 write”	 and	 that	 it	 was	 his	 attorney’s	 responsibility	 to	 file	 documents	 to	

transport	him	from	jail	in	order	to	contest	the	forfeiture	proceedings.			

      [¶17]		A	party	seeking	relief	from	a	default	judgment	“must	adduce	the	

facts	 showing	 a	 reasonable	 excuse	 for	 the	 default.”	 	 A.	 Dean	 Corp.	 v.	 White,	

429	A.2d	 1010,	 1011	 (Me.	 1981).	 	 We	 have	 affirmed	 a	 trial	 court’s	

determination	 that	 a	 reasonable	 excuse	 had	 been	 demonstrated	 where	 a	

default	 was	 due	 in	 part	 to	 a	 defendant’s	 reliance	 on	 assertions	 made	 by	 the	

opposing	party,	see	Mariello	v.	Giguere,	667	A.2d	588,	589-90	(Me.	1995);	see	

also	Schmid	Bros.,	Inc.	v.	Roberts,	538	A.2d	291,	293	(Me.	1988)	(affirming	the	

finding	of	a	reasonable	excuse	where	the	defaulted	party	relied	on	statements	

made	by	an	employee	of	opposing	party).		Similarly,	we	have	held	that	a	trial	

court	 committed	 obvious	 error	 when	 it	 failed	 to	 grant	 relief	 from	 judgment	

where	the	opposing	party	failed	to	follow	a	procedural	rule.		See	Scott	v.	Lipman	

&	Katz,	P.A.,	648	A.2d	969,	972-976	(Me.	1994).	

      [¶18]	 	 In	 contrast,	 we	 have	 held	 that	 the	 trial	 court	 properly	 denied	 a	

Rule	60(b)	motion	when	a	party	was	properly	served	and	failed	to	appear	at	a	

court	proceeding,	see	e.g.,	Haskell,	2017	ME	91,	¶¶	14-15,	160	A.3d	1176;	Butler	

v.	 D/Wave	 Seafood,	 2002	 ME	 41,	 ¶	 18,	 791	 A.2d	 928;	 where	 a	 party	 failed	 to	

offer	any	evidence	to	support	his	assertion	that	he	had	a	reasonable	excuse,	see	
10	

Maroon	Flooring,	Inc.	v.	Austin,	2007	ME	75,	¶	9,	927	A.2d	1182;	and	where	a	

party	 failed	 to	 retain	 Maine	 counsel	 in	 a	 timely	 manner,	 see	 Interstate	 Food	

Processing	Corp.	v.	Pellerito	Foods,	Inc.,	622	A.2d	1189,	1193	(Me.	1993).			

      [¶19]	 	 The	 unusual	 factual	 circumstances	 of	 this	 case	 steer	 us	 in	 a	

different	 direction.	 	 Although	 Philogene	 was	 served	 by	 the	 State	 in	 the	 civil	

forfeiture	 matter,	 the	 record	 as	 a	 whole	 compelled	 the	 conclusion	 that	

Philogene	believed	his	attorney	was	representing	him	in	proceedings	related	to	

his	 $16,545.	 	 Because	 of	 the	 unusual	 actions	 of	 the	 prosecutor’s	 office,	 there	

were	two	separate	actions	brought	by	the	State	concerning	the	same	$16,545.		

In	 docket	 number	 ANDCD-CR-2017-624,	 a	 criminal	 case	 against	 Philogene,	

count	5	asserted	that	the	State	was	entitled	to	a	“criminal”	forfeiture,	15	M.R.S.	

§	5826,	of	that	money	from	Philogene.		In	docket	number	AUBSC-CV-2017-79,	

the	State	asserted	that,	pursuant	to	15	M.R.S.	§§	5821-5822,	it	was	entitled	to	a	

“decree	 of	 forfeiture”	 against	 the	 money	 and	 named	 Philogene	 as	 a	 party	 in	

interest.		In	the	criminal	case,	Philogene’s	counsel	appropriately	was	seeking	

the	return	of	his	client’s	property,	but,	inexplicably,	the	trial	court	deemed	his	

motion	 “moot	 pending	 the	 outcome	 of	 the	 civil	 forfeiture	 proceeding”	 even	

though	the	criminal	action	was	still	pending.			
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	      [¶20]		Here,	because	Philogene	had	filed	a	motion	in	his	criminal	case	to	

obtain	 the	 return	 of	 the	 seized	 funds	 and	 the	 State	 should	 have	 notified	

Philogene’s	 counsel	 of	 the	 civil	 action,	 there	 is	 a	 “showing	 of	 injustice	 in	 the	

original	judgment.”		Moulton	v.	Brown,	627	A.2d	521,	523	(Me.	1993).		

	      [¶21]		Philogene	timely	filed	a	Rule	60(b)	motion	and	has	continued	to	

seek	to	have	the	merits	of	his	argument	heard.		His	attempt	to	right	the	wrong	

effected	 by	 the	 default	 judgment	 was	 not	 “a	 new	 litigation	 strategy	

after-the-fact.”		In	re	David	H.,	2009	ME	131,	¶	40,	985	A.2d	490.	

       [¶22]		The	dilemma	in	which	Philogene	finds	himself	is	not	the	result	of	

an	intentional	failure	to	appear	or	a	willful	disregard	of	the	court	proceedings.		

See	 Keane	 v.	 HSBC	 Bank	 USA,	 874	 F.3d	 763,	 765-66	 (1st	 Cir.	 2017).	 	 Rather,	

Philogene’s	 dilemma	 arose	 out	 of	 a	 reasonable	 confusion	 concerning	 the	

overlap	between	the	charges	filed	against	him	and	his	own	legal	responsibilities	

at	the	time	when	the	civil	forfeiture	was	initiated.		Philogene	continued	to	“take	

legal	steps	to	protect	[his]	own	interests”	in	the	criminal	proceedings,	Town	of	

Wiscasset	 v.	 Mason	 Station,	 LLC,	 2015	 ME	 59,	 ¶	 10,	 116	 A.3d	 458,	 and,	 as	

supported	 by	 the	 record	 before	 the	 trial	 court,	 demonstrated	 a	 reasonable	

excuse	for	his	inattention	to	the	civil	forfeiture	proceedings.		
12	

B.	    Meritorious	Defense	

       [¶23]		Philogene	contends	that	the	State	lacked	probable	cause	to	seize	

his	money	following	his	March	7,	2017,	traffic	stop	and	arrest.		Philogene	bears	

the	burden	of	providing	“a	meritorious	defense	to	the	underlying	action.”		Ezell,	

2008	ME	139,	¶	22,	955	A.2d	202.	

       [¶24]		A	 meritorious	defense	is	one	that	is	colorable	and	not	frivolous.		

Estate	of	Gordan,	2004	ME	23,	¶	23,	842	A.2d	1270.		“The	mere	assertion	that	a	

meritorious	 defense	 exists	 is	 insufficient	 to	 support	 a	 motion	 to	 set	 aside	 a	

default	 judgment.”	 	 A.	 Dean	 Corp.,	 429	 A.2d	 at	 1011.	 	 Instead,	 in	 asserting	 a	

defense,	 a	 party’s	 argument	 must	 be	 presented	 with	 “enough	 elaboration	 of	

facts	 to	 permit	 the	 court	 to	 determine	 whether	 .	 .	 .	 the	 defense	 would	 be	

meritorious.”		Hart	v.	Terry	L.	Hopkins,	Inc.,	588	A.2d	1187,	1190	(Me.	1991).		

Because	the	truth	of	a	purported	defense	is	not	litigated	at	the	motion	hearing,	

“the	 moving	 party’s	 version	 of	 the	 facts	 and	 circumstances	 supporting	 his	

defense	are	deemed	to	be	true.”		Id.	

       [¶25]		Here,	the	“underlying	action”	to	which	Philogene	must	provide	a	

defense	 involves	 the	 State’s	 allegation	 that	 the	 cash	 was	 connected	 to	 illegal	
                                                                                                                  13	

drug	 activity. 11 		 Ezell,	 2008	 ME	 139,	 ¶	 22,	 955	 A.2d	 202;	 see	 15	 M.R.S.	

§§	5821-5822.		

        [¶26]		The	trial	court	erred	as	a	matter	of	law	because	it	focused	only	on	

what	the	money	was	to	be	used	for	and	not	whether	there	was	probable	cause	

to	trace	the	money	to	any	drug	offense,	and	because	it	failed	to	give	the	requisite	

deference	 to	 Philogene’s	 proffered	 defense	 that,	 in	 effect,	 the	 cash	 had	 a	

legitimate	 source. 12 		 We	 therefore	 vacate	 the	 judgment	 denying	 Philogene’s	

motion	to	set	aside	the	default	and	for	relief	from	the	default	judgment,	and	we	

remand	with	instructions	for	the	court	to	grant	that	motion	and,	after	hearing	

or	other	appropriate	process,	adjudicate	the	merits	of	the	M.R.U.	Crim.	P.	41(j)	

motion	and	the	civil	forfeiture	action.13	




   11 		 Section	 5821	 provides	 that	 the	 State	 may	 subject	 to	 forfeiture	 “all	 money	 .	 .	 .	 furnished	 or	

intended	to	be	furnished	by	any	person	in	exchange	for	a	scheduled	drug	in	violation	of	Title	17-A,	
chapter	45;	all	proceeds	traceable	to	such	an	exchange;	and	all	money	.	.	.	used	or	intended	to	be	used	
to	 facilitate	 any	 violation	 of	 Title	 17-A,	 chapter	 45.”	 	 15	 M.R.S.	 §	 5821(6)	 (2017).	 	 Section	 5822	
provides	 that	 in	 an	 in	 rem	 civil	 forfeiture	 action,	 the	 State	 must	 prove	 all	 material	 facts	 by	 a	
preponderance	of	the	evidence.		See	15	M.R.S.	§	5822(3)	(2017).	
  12		In	analyzing	the	federal	civil	forfeiture	statute,	the	First	Circuit	has	held	that	the	government	

must,	by	a	preponderance	of	the	evidence,	establish	“a	‘substantial	connection’	between	the	currency	
and	a	narcotics	offense.”		United	States	v.	$62,552.00	in	United	States	Currency,	No.	03-10153-RBC,	
2015	U.S.	Dist.	LEXIS	6280,	at	*24	(D.	Mass.	Jan.	20,	2015)	(quoting	18	U.S.C.S.	§	983(c)(3)).	
   13		When	 criminal	and	civil	proceedings	regarding	the	same	subject	matter	are	pending,	courts	

generally	defer	civil	proceedings	pending	the	completion	of	parallel	criminal	proceedings.		See	United	
States	v.	Kordel,	397	U.S.	1,	12	n.27	(1970)	(“Federal	courts	have	deferred	civil	proceedings	pending	
the	completion	of	parallel	criminal	prosecutions	when	the	interests	of	justice	seemed	to	require	such	
action,	sometimes	at	the	request	of	the	prosecution,	sometimes	at	the	request	of	the	defense.”);	see	
also	SEC	v.	Dresser	Indus.,	Inc.,	628	F.2d	1368,	1375-76	(D.C.	Cir.	1980);	Eastwood	v.	United	States,	
14	

                                      III.		CONCLUSION	

        [¶27]	 	 In	 sum,	 in	 the	 unique	 circumstances	 of	 this	 case,	 the	 record	

indicates	that	Philogene	showed	a	reasonable	excuse	for	his	inattention	to	the	

forfeiture	 proceedings	 and	 demonstrated	 a	 meritorious	 defense	 to	 the	

underlying	charges.		Accordingly,	the	trial	court,	in	denying	Philogene’s	motion	

for	relief	from	judgment,	“work[ed]	a	plain	and	unmistakable	injustice”	against	

Philogene,	as	a	party-in-interest,	and	his	$16,545,	as	defendant	in	rem.		Ezell,	

2008	ME	139,	¶	19,	955	A.2d	202.	

        The	entry	is:	

                           Judgment	 vacated.	 	 Remanded	 for	 further	
                           proceedings	consistent	with	this	opinion.		



Jerry Philogene, appellant pro se

Andrew S. Robinson, District Attorney, and Michael B. Dumas, Asst. Dist. Atty.,
Prosecutorial District III, Lewiston, for appellee State of Maine


Androscoggin County Superior Court docket number CV-2017-79
FOR CLERK REFERENCE ONLY




No.	2:06-cv-164,	2008	U.S.	Dist.	LEXIS	106777,	at	*3	(E.D.	Tenn.	Nov.	14,	2008)	(citing	Campbell	v.	
Eastland,	307	F.2d	478,	488	(5th	Cir.	1962)).	
