concurring in part and dissenting in part.
I concur with the majority save for the holding that Braxton is liable to the government for rent.
I see no showing of oversight, inadvertence, or excusable neglect such as to allow the government to file, during the final stage of this protracted proceeding, a counterclaim seeking past due rent from Brax-ton. And, in my opinion, justice did not require the allowance of the counterclaim.
For almost four years following the order of forfeiture, the government acquiesced in Braxton’s farming the subject land.1 During that period the government did not avail itself of the broad remedies available to it to seize the property and maintain the value of the farmland. Because Braxton’s farming of the land bene-fitted the land,2 the government never suggested to Braxton that he give up the farm. Nevertheless, during the final stages of the litigation, the government was allowed to proclaim itself the landlord and Braxton the hostile tenant, thereby avoiding the financial risks that go part and parcel with raising peanuts, soy beans, and corn on a West Florida farm. I see no equity in that.
RICO was designed in such a way as to cut a wide swath, but in my opinion the windrow was piled far too high in this case.
. A mortgage foreclosure proceeding against the land was eminent.
. The government’s appraiser testified at trial that if the land had lain fallow it would have become worthless.