United States v. Torres-Colon

January 18, 1994 [NOT FOR PUBLICATION]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.

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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.

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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.

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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

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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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