
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        January 18, 1994        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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                                         -3-          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                                         -5-          government successfully served  notice on both appellant  and the          defendant property at this address.                                           -6-                          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).          ______                                         -8-                      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                                         -9-          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                                         -10-          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.          ___________________________________________________________                                         -12-
