United States v. One Parcel of Land, Parcela 22

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals
For the First Circuit

No. 00-1747

UNITED STATES,

Plaintiff, Appellee,

v.

ONE PARCEL OF LAND, PARCELA 22, BARRIO LLANOS COSTA,
CABO ROJO, P.R.,

Defendant,

JORGE L. SUAREZ-MAYA,

Claimant, Appellant,

NAYDA FRANQUI; MUNICIPAL TAX COLLECTION CENTER (CRIM),

Claimants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
[Hon. Robert J. Ward,* U.S. District Judge]

Before

Lipez, Circuit Judge,
Campbell and Cyr, Senior Circuit Judges.
 Jorge L. Suarez-Maya, on briefs pro se.
Guillermo Gil, United States Attorney, Miguel A. Fernandez,
Assistant United States Attorney, and Jose Javier Santos Mimoso,
Assistant United States Attorney, on brief for appellee.

August 23, 2001

______________________
*Of the Southern District of New York, sitting by designation.
 Per Curiam. Pro se claimant Jorge Suárez-Maya

appeals a district court judgment that orders the forfeiture

of certain property to the government as the "proceeds" of

drug transactions, see 21 U.S.C. § 881(a)(6), and requires

the government to pay claimant one third of the forfeiture

sale's proceeds. We have thoroughly reviewed the record and

the parties' briefs on appeal. We vacate the forfeiture

judgment and remand for further proceedings because we

conclude that claimant did not have fair notice that his

trial would begin less than twenty-four hours after he was

transferred to Puerto Rico from the federal prison in

Allenwood, PA. We address the parties' salient arguments.

Jurisdiction

We reject the parties's suggestion that this court

lacks jurisdiction over the instant appeal because the

property damage claim alleged in claimant's "Moción En

Demanda", Docket #97, remained pending when the district

court entered its forfeiture judgment on March 24, 2000.

This claim was not pending because it required no ruling.

The "Moción En Demanda" constituted an attempt to cure the

lack-of-presentment defect that the district court identified

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 when it dismissed claimant's property damage claim under the

Federal Tort Claims Act (FTCA) and granted the government

partial summary judgment. 1 Claimant had no right to bring

suit on his property damage claim when he filed his "Moción

en Demanda" because six months had not yet elapsed from the

date of presentment suggested by his Standard Form 95 and the

USMS had not administratively denied his claim. Moreover,

claimant never served his "Moción en Demanda" on opposing

counsel. Thus, the district court was required to do no more

than "note" claimant's "Moción En Demanda," as it did in its

January 29, 1999 order, Docket #104.

We recognize that the trial judge purported to

resurrect claimant's "Moción En Demanda" at the May 3, 2000

hearing. This action was a nullity. By that time, the

district court had lost jurisdiction over this case because

the claimant had filed a valid notice of appeal, Docket #120,

on February 28, 2000. It is clear that claimant filed this

notice to appeal from the decision that the district court

1 Claimant's "Moción en Demanda" included a Standard Form
95 by which claimant purported to present his property damage
claim to the United States Marshal Service (USMS) in Hato Rey.
Claimant obviously did this in response to the district court's
order that dismissed his property damage claim based on
claimant's failure to satisfy the FTCA's presentment
requirement. See 28 U.S.C. § 2675(a).

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announced at the February 17, 2000 trial. See Becker v.

Montgomery, 121 S.Ct. 1801, 1807 (2001). The district court

erred by failing to treat this document as a notice of

appeal. See, e.g., Hyche v. Christensen, 170 F.3d 769, 770

(7th Cir. 1999), overruled on other grounds by Lee v.

Clinton, 209 F.3d 1025, 1027 (7th Cir. 2000); Dickerson v.

McClellan, 37 F.3d 251, 252 (6th Cir. 1994); 20 Moore's

Federal Practice, §303.32[2][a][i] (3d ed. 1997). This was

not a case in which the claimant was trying to appeal an

obviously unappealable order. Compare United States v. Mala,

7 F.3d 1058, 1061 (1st Cir. 1993). Rather, this was a case

in which the claimant promptly filed a notice of appeal from

rulings announced from the bench, as contemplated by Fed. R.

App. P. 4(a)(2)("a notice of appeal filed after the court

announces a decision or order but before the entry of

judgment ... shall be treated as if filed after such entry

and on the date thereof[]"). The district court clerk should

have recognized that although claimant filed his notice of

appeal before judgment entered on March 24, 2000, the notice

ripened into effect on that date under Fed. R. App. P.

4(a)(2). At that point, the clerk had the obligation to

forward the notice of appeal and the docket entries to this

court under Fed. R. App. P. 3(d)(1).

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 Because a valid notice of appeal divests the

district court of jurisdiction over matters related to the

appeal, see, e.g., Brandt v. Wand Partners, 242 F.3d 6, 14

(1st Cir. 2001), the district court lacked jurisdiction to

reopen the proceedings on the merits on May 3, 2000. Thus,

orders issued with respect to claimant's property damage

claim from that point on were a nullity. Accordingly, they

do not defeat this court's jurisdiction.2

The Merits

On appeal, claimant argues that the government

failed to establish probable cause for the forfeiture.3

Alternatively, claimant contends that the district court

deprived him of a fair opportunity to prepare and present his

defense by requiring him to proceed with trial when he had

2 We pause to note that claimant's "Moción En Demanda" is
in Spanish, as are a host of other documents that claimant filed
in the district court. Claimant has failed to supply this court
with English translations of his Spanish documents as required
by Local Rule 30(d). Ordinarily, we would hold that claimant
has waived any claim that is based on untranslated documents.
See, e.g., Ramos-Baez v. Bossolo-Lopez, 240 F.3d 92, 93-94 (1st
Cir. 2001); Lopez-Carrasquillo v. Rubianes, 230 F.3d 409, 413,
414 & n. 3 (1 st Cir. 2000); Gonzales-Morales v. Hernandez-
Arencibia, 221 F.3d 45, 50 n. 4 (1st Cir. 2000). Here, however,
the record contains numerous documents that describe the
critical records in English. Accordingly, we have relied on
these descriptions and hold that claimant has waived any claims
that call for a different translation.
3 We reject the government's suggestion that claimant did
not preserve this issue.

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not been transferred to Puerto Rico in time to attend his

final pretrial conference and further was not given notice

that his trial would begin on February 17, 2000. Claimant's

first contention lacks merit, but we are compelled to agree

with his second point.

We conclude that the government has established

probable cause for the forfeiture. To be sure, neither the

state nor the federal drug offenses identified in the

verified forfeiture complaint could reasonably be thought to

have yielded the requisite "proceeds." This is because these

offenses were unsuccessful and too remote in time to the

claimant's purchase of the defendant property to be

reasonably thought to have funded it. However, the evidence

at claimant's federal trial disclosed that claimant admitted

his culpability in ferrying 16 kilograms of cocaine from Mona

Island to the main island of Puerto Rico and that he knew

where an additional 250-270 kilograms was stashed on Mona

Island. See United States v. Ramirez-Ferrer, 82 F.3d 1149

(1st Cir. 1996), 82 F.3d 1131 (1st Cir. 1996)(en banc),

United States v. Ramirez-Ferrer, 1995 WESTLAW 237041 (1 st

Cir. 1995). It is reasonable to conclude that someone

entrusted with this amount of cocaine and knowledge was not

committing his first drug offense in ten years (i.e., roughly

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 the amount of time between claimant's state and federal

offenses). Rather, these circumstances suggest that claimant

probably engaged in additional drug crimes that could have

generated "proceeds" that at least partially funded his

purchase of the defendant property.

Nevertheless, we are compelled to vacate and remand

because the record discloses that claimant did not have fair

notice that his trial would begin less than 24 hours after

he arrived in Puerto Rico. It is undisputed that claimant

had notice of the district court order that first scheduled

his trial for March 15, 2000. Claimant further acknowledged

that he had the court's February 1, 2000 order, which the

district court construed as rescheduling claimant's trial for

sometime between February 14-29, 2000.4 But the February 1 st

order did not actually reschedule claimant's trial. Rather,

the final sentence of the order states, "The non-jury trial,

currently scheduled for MARCH 15, 2000 will be RESET for the

period between FEBRUARY 14-29, 2000 by separate order."

(emphasis supplied). The remainder of the February 1 st order

denied claimant's request for discovery, allowed claimant's

4 The February 1, 2000 order, Docket #115, was signed by
Judge Cerezo on January 31, 2000. Because the order was not
entered until the following day, we refer to Docket #115 as the
"February 1st" order.

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 motion to be transferred to Puerto Rico so that he could

prepare for trial, ordered that claimant be transferred to

Puerto Rico "forthwith," and assigned the trial to a visiting

judge. The February 1st order also scheduled a status

conference for February 11, 2000.

We think it clear that Judge Cerezo ordered

claimant to be transferred to Puerto Rico "forthwith" so that

he could attend the February 11th conference and have a

modest amount of time in Puerto Rico to prepare for trial.

But claimant was not transferred to Puerto Rico in time to

attend the February 11th conference. Claimant's attendance

at this conference was required by Fed. R. Civ. P.

16(d)(providing that the final pretrial conference, "shall

be attended by ... any unrepresented parties." (emphasis

supplied)).5 In accordance with the February 1st order, the

trial judge issued a further scheduling order at the February

11th conference which advised the Assistant United States

Attorney (AUSA) "to be ready to go to trial any day after

February 16, 2000." There is no evidence that claimant was

ever given notice of this third scheduling order. Thus, the

record discloses that claimant arrived in Puerto Rico on the

5
Because of its close proximity to the trial, the February
th
11 conference constituted a final pretrial conference that
claimant had the right to attend under Fed. R. Civ. P. 16(d).

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evening of February 16th and that he was brought to court for

trial first thing in the morning on February 17th. But

having missed the final pretrial conference, and lacking

notice of the events that transpired there, claimant

reasonably believed that his case remained scheduled for

trial on March 15th.

The trial judge overlooked the fact that the

February 1st order did not actually reschedule the trial;

rather, it stated that a separate order would issue that

would reschedule the trial. The judge also overlooked the

fact that because claimant had not been transferred to Puerto

Rico in time to attend the February 11th conference and was

not notified of the events that transpired there, he had no

notice of the order that the judge issued at the conference

which resulted in the case being called for trial less than

24 hours after claimant arrived in Puerto Rico. Claimant was

prejudiced by this chain of events. Had he been transferred

to Puerto Rico in time to attend the February 11 th

conference, he would have had three days to line up his

witnesses and documents, for trial was then scheduled for

February 15th. As it was, claimant had less than 24 hours.

The trial judge recognized that claimant was at a

disadvantage and endeavored to ameliorate the situation by

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allowing a key witness, attorney Velez Rivera, to "testify"

by speakerphone. This was not sufficient. Attorney Velez

Rivera was the only witness whom the claimant identified who

appeared to have personal knowledge of many of the

circumstances surrounding claimant's sale of his other

property. Claimant was entitled to have a fair opportunity

to bring attorney Velez Rivera, and any others witnesses who

could offer admissible evidence to support his claims, into

court to testify.

In view of the foregoing, we think that the trial

judge abused his discretion in concluding that claimant had

fair notice of the trial date from the court's February 1,

2000 order. See, e.g., Casa Maria Hogar Geriatrico, Inc. v.

Rivera-Santis, 38 F.3d 615, 618 (1st Cir. 1994). We reject

the government's suggestion that the claimant was not

prejudiced by the foregoing course of events because he was

given a second opportunity to present evidence at the May 3,

2000 hearing. For one thing, the notice that the court

issued in scheduling that hearing described it as a hearing

on claimant's motion to stay the forfeiture sale. It is not

clear that claimant was told that he was going to get a

second bite at the apple. More importantly, by that time,

the court had no jurisdiction to offer such a bite, because

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the claimant had filed a valid notice of appeal. Thus, the

May 3rd hearing was not a sufficient cure for the inadequate

notice that preceded the trial.

Since claimant unquestionably suffered prejudice,

considerations of basic fairness dictate that we grant a new

trial. Moreover, we are greatly concerned that the record

on appeal fails to indicate that the government ever provided

the district court with an explanation for its sixteen-day

delay in returning claimant to Puerto Rico (to enable him to

prepare for trial), notwithstanding the explicit directive

in the district court's February 1st order that the

government do so "forthwith." Although the record obliquely

suggests that claimant may have required hospitalization

during this time, it was incumbent upon the government to

account for the seemingly inordinate delay, especially since

its deferment deprived claimant of the right to attend the

pivotal February 11 status conference.

Where the claimant in a civil forfeiture proceeding

is in federal custody and has not been made available in due

course for trial, the district court should determine the

reason for the tardy transfer. Should the district court

determine that there was government mischief or manipulation,

or that the explanation proffered for the delay was

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unsubstantiated or manifestly pretextual, it must exercise

its discretion by imposing a sanction commensurate with the

seriousness of the misfeasance. Any such sanction may

include the dismissal, with prejudice, of the civil

forfeiture complaint should the circumstances warrant. See

Fernandez v. Leonard, 963 F.2d 459, 462-63 (1st Cir.

1992)(noting that dismissal is potential sanction for "fraud

on the court," defined to include any "unconscionable scheme

calculated to ... unfairly hamper[] the presentation of the

opposing party's claim or defense.")(citation omitted). Of

course, it is for the district court to determine in the

first instance what, if any, sanction may be appropriate in

the circumstances.

The district court should proceed with its retrial

of the forfeiture action only after it has made an explicit

ruling on the government's explanation for the delay in

transfer, and it has determined in its discretion that the

ultimate sanction of dismissal is unwarranted in the

circumstances. At that juncture, the district court should

provide claimant adequate notice of the retrial date, as well

as a reasonable time and opportunity to prepare for the

retrial, to arrange for the court appearances of all material

witnesses, and for the translation of important documents

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(e.g., deeds of sale) which purportedly substantiate

claimant's defense.

While we need not reach claimant's remaining

arguments, we add the following comments to clarify certain

matters which could arise on remand should the district court

determine that dismissal of the forfeiture complaint is not

warranted. First, claimant cannot benefit from the Civil

Asset Forfeiture Reform Act of 2000 because this law applies

only to cases that were commenced on or after August 23,

2000. See, e.g., United States v. Real Property Located at

221 Dana Avenue, Hyde Park, MA, No. 00-1665, slip op. at 2,

n.1 (1st Cir. Aug. 17, 2001); United States v. Quintana-

Aguayo, 235 F.3d 682, 687 n.9 (1st Cir. 2000). Under the law

that governs this case, the government may use reliable

hearsay to satisfy its burden of proving probable cause, but

the claimant cannot rely on hearsay to rebut the government's

showing. See United States v. One Lot of Currency ($68,000),

927 F.2d 30, 32 (1st Cir. 1991)(forfeiture claimant "must

produce evidence which would be admissible at trial" in

opposing the government's motion for summary judgment).

Claimant must do more than proffer possible innocent (i.e.,

non-drug related) sources of income to rebut the government's

case. See United States v. Parcels of Property, 9 F.3d 1000,

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 1005 (1st Cir. 1993). Rather, claimant must prove that non-

drug money funded his purchase of the defendant property by

a preponderance of the evidence. See United States v.

Parcels of Land, 903 F.2d 36, 38 (1st Cir. 1990).6

Second, the district court did not err by

disregarding the alleged legitimate sources of income that

claimant identified at his trial and in his prior deposition.

Absent evidence corroborating same, the district court was

not obliged to credit claimant's trial testimony regarding

his alleged sale of a boat. Claimant also is under the

mistaken impression that the entire transcript of his

deposition is part of the record. It is not. It is the

responsibility of the claimant, not the district court, to

identify evidence in support of his claims. See Ruiz Rivera

v. Riley, 209 F.3d 24, 27-28 & n.2 (1st Cir. 2000); Local

Rule 311.12.7 The district court also did not err by relying

6 Although we need not reach the issue, we note that the
testimony of Mrs. Sor Carrera Rodriguez regarding claimant's
alleged bolíta winnings was hearsay; therefore it added nothing
to claimant's case.
7 On appeal, claimant argues that he earned between $4000-
$5000 every three months from growing pumpkins and watermelons
on his property. However, claimant failed to bring the page
from his deposition that supports this claim to the attention of
the district court. Claimant's motion to take judicial notice
is denied insofar as it seeks to add this page to the record on
appeal. The remaining items addressed in that motion are part
of the record which we have reviewed; therefore there is no need

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 on the fact that claimant did not file tax returns in

reaching its decision. The fact that claimant's alleged

income sources are not corroborated by tax returns is

relevant even if claimant's failure to file tax returns did

not violate Puerto Rico law (a matter on which we express no

opinion). 8 Finally, the district court did not err in its

treatment of Magistrate-Judge Delgado-Colon's June 17, 1998

report.

In view of the foregoing, the judgment of the

district court is vacated and the case is remanded for

further

proceedings consistent with this opinion. See Local Rule

27(c).

for claimant to seek judicial notice of these documents. The
suggestion in claimant's reply brief that his October 27, 1998
complaint, Docket #98, remains pending is waived because
claimant did not present this claim clearly in his opening
brief. See, e.g., United States v. Coviello, 225 F.3d 54, 70
n.10 (1st Cir. 2000), cert. denied, 121 S. Ct. 839 (2001).
8 The record of the May 3, 2000 hearing indicates that the
trial judge gave claimant the benefit of the doubt on this
issue. We assume that this means that he credited claimant's
contention that independent fisherman are not required to file
tax returns in Puerto Rico. Even if this is so, it does not
help claimant's case. If claimant fails to corroborate his
claims regarding the non-drug related sources of income that he
has identified, the district court may rely on this fact on
remand.

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