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United States v. Indoor Cultivation Equipment From High Tech Indoor Garden Supply

May 25, 1995

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE,

v.

INDOOR CULTIVATION EQUIPMENT FROM HIGH TECH INDOOR GARDEN SUPPLY, ONE 1986 NISSAN PICK-UP TRUCK VIN JN6ND11S6GW003022, ONE 1986 SHORELAND'R TRAILER VIN 1MDBEET15GC269277, AND ONE 1985 STARCRAFT BOAT VIN STRP7061E585 WITH 140 HORSEPOWER MERCRUISER ENGINE,

DEFENDANTS,

RAYBURN D. POLLARD, JR.,

CLAIMANT-APPELLANT.



Appeal from the United States District Court for the Central District of Illinois, Peoria Division.

No. 91 C 1218--Michael M. Mihm, Chief Judge.

Before BAUER and COFFEY, Circuit Judges, and CRABB, District Judge. *fn1

CRABB, District Judge.

ARGUED FEBRUARY 9, 1995

DECIDED MAY 26, 1995

Claimant-appellant Rayburn Pollard, Jr. appeals from the denial of his motion under Fed. R. Civ. P. 60(b) to set aside a default judgment entered against his indoor marijuana cultivation equipment, pick-up truck, powerboat and trailer in a forfeiture action brought by the United States pursuant to 21 U.S.C. secs. 881(a)(2), (a)(4) and (a)(6). Pollard suffered the default by failing to answer the government's in rem complaint. For the reasons expressed below, we affirm in part and reverse in part, holding that the district court properly declined to vacate the judgment against Pollard's cultivation equipment, but should have vacated the judgment against his pick-up truck, powerboat and trailer because the late filing of the government's complaint rendered the judgment void against those conveyances.

FACTUAL BACKGROUND

The facts are of record and undisputed. On October 26, 1989, after months of investigating the business operations of High Tech Indoor Garden Supply in Washington, Illinois, federal Drug Enforcement Administration agents arrested its owner, Rayburn Pollard, Jr., and seized the company's indoor cultivation equipment as well as Pollard's 1986 Nissan pick-up truck, Starcraft powerboat and Shoreland'r trailer. On January 8 and February 5, 1990, Pollard contested the forfeiture of his property by filing the appropriate claims and cost bonds.

On April 24, 1991, Pollard pleaded guilty to manufacturing marijuana in violation of 21 U.S.C. sec. 841(a)(4). Approximately three months later, on July 30, 1991, the United States began a civil forfeiture proceeding against Pollard's seized property, filing a verified four-count in rem complaint in the United States District Court for the Central District of Illinois. In Count I, the government sought forfeiture of Pollard's indoor cultivation equipment on the grounds that it had been used to manufacture a controlled substance under 21 U.S.C. sec. 881(a)(2) and constituted proceeds traceable to an exchange for a controlled substance under 21 U.S.C. sec. 881(a)(6). In Count II, the government sought forfeiture of Pollard's pick-up truck under the theory that it represented the proceeds of drug transactions under 21 U.S.C. sec. 881(a)(6) and also had been used to facilitate drug transactions under 21 U.S.C. sec. 881 (a)(4). In Counts III and IV, the government sought forfeiture of Pollard's powerboat and trailer solely under 21 U.S.C. sec. 881(a)(6) on the ground that both were purchased with proceeds of drug transactions.

On August 21, 1991, Pollard filed a claim of ownership, and on September 3, 1991, through his privately retained attorney, moved unsuccessfully to dismiss the government's complaint. After the district court denied his motion on February 19, 1992, Pollard failed to file an answer within twenty days as required by Rule C(6) of the Supplemental Rules of Certain Admiralty and Maritime Claims, which govern the procedures for civil forfeiture actions. On March 26, 1992, the government moved for entry of default and mailed a copy of the motion to Pollard's attorney as well as to the lawyer who had represented Pollard in his underlying criminal case. On April 10, 1992, after no response to the motion had been filed, the district court entered a default order against Pollard's cultivation equipment, pick-up truck, powerboat and trailer. Five days later the government moved for entry of default judgment and again mailed a copy of its motion to each of Pollard's attorneys. No response was filed and on April 17, 1992, the district court entered default judgment in favor of the government.

Pollard contends he learned of the default judgment for the first time on September 20, 1992, while incarcerated, and immediately began educating himself about in rem forfeiture procedures. He filed a pro se motion to vacate the judgment on November 24, 1992, asserting several grounds for relief, including his attorney's failure to notify him of the pending default or to respond on his behalf. He also argued that the government's complaint was time-barred under the applicable forfeiture laws, thereby rendering the default judgment void. Rejecting each of the asserted grounds for Rule 60(b) relief, the district court denied Pollard's motion on May 26, 1993.

OPINION

To prevail on a motion to vacate a default judgment under Rule 60(b), a party must show (1) good cause for the default; (2) quick action to correct the default; and (3) the existence of a meritorious defense to the original action. Jones v. Phipps, 39 F.3d 158, 162 (7th Cir. 1994); United States v. DiMucci, 879 F.2d 1488, 1495 (7th Cir. 1989). We review a district court's denial of a Rule 60(b) motion for an abuse of discretion. Jones, 39 F.3d at 162. Under this ...


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