From: [w d starr] at [athena.mit.edu] (William December Starr)
Newsgroups: alt.society.civil-liberty,alt.law-enforcement,talk.politics.drugs,misc.legal
Subject: "Commonwealth vs. One 1987 Ford Econoline Van"
Date: 28 Mar 1993 01:13:36 GMT
I found this recent (August 1992) case from the highest court in
Massachusetts while I was looking for something else entirely. It makes
a wonderful counter-argument to use should you ever run into one of
those locos who still thinks that it's good that the government has the
big gun of civil forfeiture to use in its righteous war on those evil
drug people.
(Cross-posted to alt-law-enforcement so that those of you are or are
planning on becoming cops, can see what wonderful tricks your colleagues
are up to...
(Rhetorical question: in a sane world, would such a thing as a case
named "Commonwealth vs. One 1987 Ford Econoline Van" even be possible?)
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COMMONWEALTH vs. ONE 1987 FORD ECONOLINE VAN.
SUPREME JUDICIAL COURT OF MASSACHUSETTS
413 Mass. 407; 597 N.E.2d 430; 1992 Mass. LEXIS 456
April 6, 1992, Argued
August 14, 1992, Decided
PRIOR HISTORY:
Hampden. Civil action commenced in the Superior Court Department on
June 16, 1988. A complaint for contempt filed on April 10, 1990, was
heard by William H. Welch, J., and a motion for rehearing was heard by
him. The Supreme Judicial Court granted a request for direct appellate
review.
COUNSEL: Laurel H. Brandt, Assistant District Attorney, for the
Commonwealth.
Patricia A. Bobba for Sonia Ivette Viruet.
JUDGES: Present: Liacos, C.J., Wilkins, Abrams, Nolan, &
O'Connor, JJ.
OPINION: LIACOS, C.J. On April 10, 1990, Sonia Ivette Viruet filed a
complaint for civil contempt after the Commonwealth failed to obey two
court orders compelling the return of Viruet's 1987 Ford Econoline van.
n1 The Commonwealth had seized the van in conjunction with a drug
enforcement effort. After a two-day bench trial, a judge in the
Superior Court found the Commonwealth in contempt and issued an order
requiring the Commonwealth to return the van or to compensate Viruet for
its value. The order also required the Commonwealth to pay Viruet's
attorney's fees and to pay certain fines in the event the Commonwealth
failed to comply with the order in a timely fashion. Subsequently, the
Commonwealth filed a motion for a new trial. This motion was denied
after a hearing. The Commonwealth appealed to the Appeals Court. We
granted Viruet's application for direct appellate review.
----------------- -Footnotes----------------- -
n1 The first order to compel return was entered in Hampden Superior
Court Civil Action 88-204 on June 17, 1988, according to the docket
sheet. See infra.
-----------------End Footnotes-----------------
On appeal, the Commonwealth argues that the judge erred in holding
the Commonwealth in contempt because compliance with the court orders to
return the van was rendered impossible by virtue of an alleged seizure
of the van by Federal authorities. Additionally, the Commonwealth
argues that the judge erred in denying its motion for a new trial.
Finally, the Commonwealth argues that the contempt order itself was
defective because the order required the Commonwealth to pay
compensation in excess of Viruet's actual loss. We affirm the judge's
contempt finding and order, as well as the denial of the motion for a
new trial.
The relevant facts are as follows. In August, 1987, Sonia Viruet
purchased a 1987 Ford Econoline van from one Hector Maldonado. On
October 27, 1987, Maldonado was arrested on drug charges. Following this
arrest, officials from the western Massachusetts narcotics task force
(task force), comprised of Federal and State law enforcement
authorities, seized Viruet's van on November 24, 1987. They alleged that
Maldonado had purchased the van with drug proceeds and had used it to
transport a controlled substance. No charges were filed against Viruet.
Viruet's van was taken to a storage facility, shared by Federal and
State authorities, in western Massachusetts. On February 3, 1988, the
Commonwealth filed a complaint (Civil Action 88-204, see note 1, supra)
seeking forfeiture of the van. In connection with this proceeding, on
April 1, 1988, the Commonwealth sought, and obtained, an interim order
from a judge in the Superior Court authorizing the Commonwealth to hold
the van pending the outcome of the forfeiture proceeding.
On April 6, 1988, the Commonwealth voluntarily dismissed the
forfeiture proceeding, apparently concluding that State law at that time
did not authorize the forfeiture of items purchased with drug proceeds.
Despite dismissing its forfeiture action, however, the Commonwealth did
not return the van to Viruet. This led Viruet to file a motion on June
9, 1988, seeking to compel the Commonwealth to return her van. This
motion was scheduled to be heard on June 17, 1988. On June 16, 1988, the
Commonwealth commenced the instant proceeding by filing a complaint and
affidavit which were nearly identical to those filed by the Commonwealth
in the first forfeiture proceeding. n2 The next day, a hearing was held
on Viruet's motion, and, on the same day, a judge in the Superior Court
allowed the motion and ordered the Commonwealth to return Viruet's van.
The Commonwealth did not do so. Instead, the Commonwealth sought
approval from a different judge in the Superior Court to secure and hold
the van. That judge denied the motion on September 1, 1988, and ordered
the Commonwealth to return the van. Nevertheless, the Commonwealth
failed again to do so.
----------------- -Footnotes----------------- -
n2 The Commonwealth contends that an error led to the filing of the
second complaint. We note, however, that the affidavit accompanying the
second complaint was notarized on June 16, 1988, the day the complaint
was filed.
-----------------End Footnotes-----------------
On April 10, 1990, the Commonwealth still had not returned the van,
and Viruet sought this complaint for civil contempt pursuant to Mass. R.
Civ. P. 65.3, as appearing in 386 Mass. 1244 (1982). n3 At the contempt
trial, the Commonwealth's principal defense was that it was impossible
to return the van because it had been seized by Federal authorities on
June 20, 1988. The Commonwealth presented three witnesses to support
this defense. One witness, Officer Kenneth Sullivan, a member of the
task force that had originally seized the van, testified that the June
17 order to return the van was issued on a Friday, that he learned of
the order after 4 P.M. that day, and that, by the time he learned of the
order, it was too late in the day to retrieve the van from the storage
facility. Sullivan further testified that he did not have access to the
van over the weekend and that, before he could retrieve the van the
following Monday, June 20, 1988, he was notified that Federal
authorities had initiated an administrative seizure of the van. Another
witness, Agent Sean McDonough of the United States Drug Enforcement
Administration (DEA), testified that, on June 20, 1988, he was notified
by Special Agent Robert Howe, an Internal Revenue Service agent assigned
to the task force, that Viruet's van had been identified as the proceeds
of a drug transaction. McDonough further testified that, based on this
information, and based on "information provided by the investigating
State Police Agents," he initiated an administrative seizure of the van
on that same day pursuant to 21 U.S.C. sec. 881 (1988). According to
McDonough, notice of the seizure was published in the fall, 1988, and,
during this time, he spoke [*411] with Viruet's attorney regarding
measures she could take before Federal agencies to protect her interest
in the van. Finally, Special Agent Norman Houle of the DEA also
testified for the Commonwealth. Agent Houle read to the court certain
documents which purportedly corroborated Agent McDonough's testimony
regarding the procedures that were followed by Federal authorities in
connection with their seizure of the van. n4 In addition, Houle
testified that a Federal proceeding ultimately led to the van being
declared forfeited to the United States government on March 29, 1990. No
documentation of this forfeiture was introduced in evidence.
----------------- -Footnotes----------------- -
n3 Viruet originally had filed a "motion" for contempt on February
14, 1989, but the judge took no action and instructed Viruet to comply
with rule 65.3 by filing a "complaint."
n4 None of these documents was introduced in evidence.
-----------------End Footnotes-----------------
At the conclusion of the testimony, the judge took the case under
advisement and afforded the Commonwealth an additional week to submit
documentary evidence as to why the Commonwealth had not returned the
van. The Commonwealth did not submit any such evidence. On June 1, 1990,
the judge found the Commonwealth in contempt. The judge ordered the
Commonwealth to return the van within ten days and to pay Viruet $ 2,000
in attorney's fees. The judge further ordered: "If the van is not
returned within ten (10) days the Commonwealth . . . shall pay to
[Viruet] $ 22,500 for the value of the van plus $ 2,000 as a civil
penalty for their contempt of the Court's Order plus $ 3,000 as
attorney's fees to the defendant. If this sum is not paid within thirty
(30) days after the expiration of the ten (10) days, the civil penalty
shall be increased at the rate of $ 1,000 for each fifteen (15) days, or
fraction thereof, the sum remains unpaid." n5 The order was stayed
pending this appeal. n6
----------------- -Footnotes----------------- -
n5 The order also prohibits the Commonwealth from disbursing any
funds from its forfeiture account until the van is returned to Viruet.
n6 The judge agreed to stay the order on the Commonwealth's placing
$ 27,500 in an interest-bearing escrow account.
-----------------End Footnotes-----------------
1. The contempt finding. "Civil contempt is found where there is
clear and undoubted disobedience of a clear and unequivocal command."
Allen v. School Comm. of Boston, 400 Mass. 193, 194 (1987). Manchester
v. Department of Envtl. Quality Eng'g, 381 Mass. 208, 212 (1980).
Noncompliance with a court order may be excused where compliance becomes
impossible, but the burden of proving impossibility lies with the
alleged contemnor. See Allen, supra at 194-195. See also Fortin v.
Commissioner of the Mass. Dep't of Pub. Welfare, 692 F.2d 790, 796 (1st
Cir. 1982), and cases cited. It has been noted that this burden is a
difficult one to meet. See id.
In the present case, the Commonwealth's evidence of impossibility
consisted almost entirely of the testimony of Officer Sullivan, who
indicated that he was unable to gain access to the van immediately
following the June 17 order and that he discontinued his efforts on June
20, when he learned that Federal authorities had initiated a Federal
seizure of the van. n7 The Commonwealth did not present any evidence
that it took action thereafter to attempt to comply with the judge's
order. Rather, a generous review of the evidence n8 reveals that the
Commonwealth simply chose to ignore the order and to accede to the
authority of the Federal agents. In these circumstances, where the
Commonwealth did not present evidence that it was "reasonably diligent
and energetic in attempting to accomplish what was ordered," Ricci v.
Okin, 537 F. Supp. 817, 824 (D. Mass. 1982), quoting Palmigiano v.
Garrahy, 448 F. Supp. 659, 670 (D.R.I. 1978), the judge was warranted
in concluding that the Commonwealth did not meet its burden of proving
that compliance was impossible. n9
----------------- -Footnotes----------------- -
n7 The testimony of Agents Houle and McDonough only pertained to the
Commonwealth's argument that the Federal seizure had occurred. The
testimony did not indicate that the Commonwealth made any efforts toward
compliance with the court order.
n8 In light of the fact that the van was held at a location which was
shared by Federal and State authorities, the judge would have been
warranted in finding that the Commonwealth's bald assertion that it did
not have access to the van over the weekend was not credible.
n9 Indeed, in light of the last minute nature of the Federal seizure,
and in light of Agent McDonough's testimony that he initiated the
Federal seizure after receiving information from members of the task
force, the trial judge would have been warranted in finding that the
Federal seizure was conducted at the Commonwealth's behest as a means of
circumventing the court order to return the van. Such conduct would
render the impossibility defense unavailable to the Commonwealth, as
"the defense of impossibility is unavailing where an alleged contemnor
is responsible for its inability to comply." Allen v. School Comm. of
Boston, 400 Mass. 193, 195 (1987).
-----------------End Footnotes-----------------
Moreover, it cannot be said that, due to the Federal seizure of the
van, the circumstances facing the Commonwealth were such that any effort
to attempt to comply with the judge's order would have been fruitless.
The premise of the Commonwealth's argument to that effect -- that the
Federal seizure created a legal barrier to compliance with the Superior
Court order -- is simply incorrect. It is well established that where a
State court first exercises jurisdiction over a res (in this case the
van), that court may do so to the exclusion of concurrent Federal in rem
jurisdiction. Penn Gen. Casualty Co. v. Pennsylvania ex. rel. Schnader,
294 U.S. 189, 195 (1935), and cases cited. See United States v. $
79,123.49 in U.S. Cash & Currency, 830 F.2d 94, 96-98 (7th Cir. 1987).
This rule ensures that the Federal and State sovereigns do not compete
simultaneously for possession or control of the same property. See id.
at 97. Accordingly, at the time of the Federal seizure, the Superior
Court order requiring the Commonwealth to return the van remained in
full force. Indeed, had the Commonwealth notified the Superior Court of
the Federal seizure, the judge would have had the option of enjoining
the Federal agents from taking custody of the van, see Princess Lida of
Thurn & Taxis v. Thompson, 305 U.S. 456, 466-468 (1939); $ 79,123.49 in
U.S. Cash & Currency, supra at 97 n.3, or modifying his order to allow
the Commonwealth to turn the van over to the Federal authorities. In any
event, the authority over the van rested with the Superior Court, and
not with the Federal drug enforcement agents. For this reason, the
Commonwealth's claim of legal impossibility must fail.
2. The contempt order. In challenging the judge's contempt order, the
Commonwealth essentially argues that the Commonwealth should not be
required to compensate Viruet for the value of the van because, even if
the Commonwealth had complied with the order and had returned the van,
the Federal authorities would have seized the van immediately
thereafter. Accordingly, the Commonwealth argues that, at most, it
should only be required to compensate Viruet for the value of the
"momentary possession" of the van that Viruet otherwise would have
enjoyed. This argument is without merit.
We cannot speculate that the Federal seizure and subsequent
forfeiture would have occurred as they did if the Commonwealth had first
returned the van to Viruet. Indeed, the testimony of Agent McDonough
suggests otherwise. McDonough testified that he was able to initiate an
administrative seizure of the van because the van was on public property
at the western Massachusetts storage facility. Had the van been returned
to Viruet, a different result may have obtained. In any event, the
Commonwealth's arguments regarding what might have been are entirely
speculative, and the judge properly exercised his discretion in refusing
to engage in such speculation.
The Commonwealth also argues that Viruet's losses were due to her own
failure to challenge the Federal seizure and not due to any action on
the part of the Commonwealth. This argument is also without merit.
Viruet had obtained two court orders requiring the Commonwealth to
return her van. It may be that her failure to challenge the Federal
forfeiture action was due to her justifiable expectation that the
Commonwealth would comply with those orders. Accordingly, we conclude
that the judge properly ordered the Commonwealth to compensate Viruet
for the value of the van.
As to the other components of the judge's contempt order, the award
of attorney's fees was proper. Allen, supra at 195 n.1. Manchester,
supra at 215-216. Similarly, to the extent that the order required the
Commonwealth to pay a civil penalty in the event it failed to comply
with the contempt order, this aspect of the order was also proper, as it
was a coercive penalty designed to achieve compliance with the [*415]
judge's order for the benefit of the complainant. Labor Relations Comm'n
v. Fall River Educators' Ass'n, 382 Mass. 465, 475-476 (1981). See
Furtado v. Furtado, 380 Mass. 137, 141 (1980).
3. Motion for a new trial. Although the Commonwealth has appealed
from the judge's denial of its motion for a new trial, it has not
presented any argument to support its claim that the judge's ruling was
improper. A judge has "broad authority . . . to grant or to deny a new
trial; his determination will be reversed only for a clear abuse of
discretion." Galvin v. Welsh Mfg. Co., 382 Mass. 340, 343 (1981). We see
no such abuse of discretion in the judge's ruling that the alleged
ineffectiveness of the assistant district attorney at trial, and the
lack of communication between the attorneys who argued the case for the
Commonwealth, did not provide a sufficient basis on which the
Commonwealth could argue that it is entitled to a new trial. There was
no error.
4. Conclusion. The contempt finding is affirmed, and the contempt
order is affirmed.
So ordered. n10
----------------- -Footnotes----------------- -
n10 Viruet has requested double costs and attorney's fees for this
appeal. See Mass. R. A. P. 25 and 26 (b), as amended, 378 Mass. 925
(1979). We do not consider this appeal to be frivolous as Viruet argues,
nor does she point to any authority permitting the imposition of
attorney's fees by this court. We do conclude, however, that she is
entitled to the costs of this appeal. See Yorke Management v. Castro,
406 Mass. 17, 19-20 (1989).