State of Maine v. Jerry Philogene

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
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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.
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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
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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)).