USCA1 Opinion
April 8, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2054
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CERTAIN REAL PROPERTY LOCATED AT,
330 FERN STREET, BANGOR, ET AL.,
Defendants-Appellees.
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JERRY HOWARD
Defendant-Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Coffin, Senior Circuit Judge,
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and Torruella, Circuit Judge.
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Schuyler G. Steele for appellant.
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Michael M. DuBose, Assistant United States Attorney, with
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whom Jay P. McCloskey, United States Attorney, was on brief for
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appellee.
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Per Curiam. Jerry Howard ("Howard"), record owner of
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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."
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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
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(1st Cir. 1993).
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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
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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
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the existence of a meritorious defense." United States v.
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Proceeds of Sale of 3,888 Pounds Atlantic Sea Scallops, 857 F.2d
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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
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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.
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