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United States v. 518.05

February 21, 1983

UNITED STATES OF AMERICA, APPELLEE
v.
$55,518.05 IN U.S. CURRENCY, GARY GOLDEN, APPELLANT



On Appeal from the United States District Court for the Western District of Pennsylvania

Author: Higginbotham

Before: GIBBONS, GARTH and HIGGINBOTHAM, Circuit Judges

Opinion OF THE COURT

A. LEON HIGGINBOTHAM, JR., Circuit Judge

Appellant Gary Golden appeals from an order of the United States District Court for the Western District of Pennsylvania denying his motion to set aside the entry of default and default judgment of forfeiture of $55,518.05. The district court denied Golden's motion because he failed to allege facts sufficient to establish a meritorious defense to the forfeiture. Because we find that the district court did not abuse its discretion, we will affirm the district court's order.

I.

The facts of this case are uncontested. Appellant Gary Golden seeks to recover $55,518.05 that was seized by agents of the United States Drug Enforcement Administration and the Federal Bureau of Investigation. The agents confiscated the money on November 9, 1982 when they arrested Golden for attempting to purchase a controlled substance, cocaine hydrochloride, in violation of the Drug Abuse Prevention and Control Act ("Act"), 21 U.S.C. § 881. A federal grand jury subsequently returned a multi-count indictment charging Golden, inter alia, with attempted possession of a controlled substance, cocaine hydrochloride, with the intent to distribute it. Upon his arrest, Golden was incarcerated in the Allegheny County Jail where he remained during the entire time relevant to this appeal.

On December 23, 1982, almost six weeks following Golden's arrest, the government initiated this forfeiture action under the Act.*fn1 The government claims that the money is subject to forfeiture under Section 881(a)(6) because Golden intended to use it to purchase cocaine hydrochloride in violation of the Act. A few days after filing this suit the government published a notice of this suit in the Pittsburgh Press and the Pittsburgh Legal Journal.

The government also notified Golden's attorney in the criminal prosecution, Thomas Crawford, that it had instituted this forfeiture action. Crawford informed the government that Golden intended to file a claim to the money. However, the record does not include a memorialization of these communications or the dates on which they occurred.

Crawford could not represent Golden in this forfeiture action because he was appointed by the court to defend Golden in the criminal prosecution, and the terms of Crawford's appointment did not permit him to represent Golden in this civil action. Moreover, responding to a government inquiry, the district court in a letter dated February 9, 1983 declared that it did not possess authority to appoint counsel for Golden in this civil forfeiture action. A copy of this letter was sent to Crawford and Golden.

Almost two weeks after the district court's letter of February 9, 1983 informed the parties of its lack of authority to appoint counsel, the government advised the court that it had "received no further indication that Mr. Golden has either sought to obtain private counsel for this matter or to otherwise secure counsel to perfect his claim." Appendix ("App.") at 31a. Expressing its wish to promptly conclude this litigation, the government informed the district court that it had filed an "application for entry of default with the Clerk of Courts and will file [a] motion for entry of default judgment as soon as the Clerk acts on our application." Id. A copy of this letter was sent to Golden.

The Clerk of Courts entered the default on February 22, 1983, the same day on which the government applied for its entry. The following day the district court granted and entered default judgment of forfeiture against Golden.

On March 8, 1983, about two weeks after the entry of default judgment, one Bradley S. Gelder, Esquire, filed a motion on behalf of Golden pursuant to Fed. R. Civ. P. 55(c) and 60(b) to set aside the entry of default and of default judgment and to permit Golden to file a claim to the forfeited money "on the ground that excusable neglect caused the delay in filing his claim. . . ." Id. at 7a. Golden filed an affidavit stating that his incarceration in the Allegheny County Jail since November 9, 1983 "made it impossible until March 3, 1983, to retain an attorney to file a claim to the . . . money." Id. at 8a. He also alleged that he had a just and valid claim to the money and that it was not "subject to forfeiture under the provisions of 21 U.S.C. § 881, i.e.,. it was neither furnished nor intended to be furnished by any person in exchange for a controlled substance." Id. at 9a.

The government opposed Golden's motion and persuaded the district court that Golden failed to set forth the existence of a meritorious defense. Accordingly, the district court entered an order on March 8, 1983 denying Golden's motion to set aside the default and default judgment from which Golden appeals.

II.

A decision to set aside the entry of default pursuant to Fed. R. Civ. P. 55(c)*fn2 and a default judgment pursuant to Fed. R. Civ. P. 60(b)*fn3 is left primarily to the discretion of the district court. Tozer v. Charles A. Krause Milling Co., 189 F.2d 242, 244 (3d Cir. 1951). We recognize, however, that this court does not favor entry of defaults or default judgments. We require doubtful cases to be resolved in favor of the party moving to set aside the default judgment "so that cases may be decided on their merits." Id. at 245. See also Gross v. Stereo Component Systems, Inc., 700 F.2d 120, 122 (3d Cir. 1983); Feliciano v. Reliant Tooling Company, Ltd., 691 F.2d 653, 656 (3d Cir. 1982); Farnese v. Bagnasco, 687 F.2d 761, 764 (3d Cir. 1982).

Nevertheless, we do not set aside the entry of default and default judgment unless we determine that the district court abused it discretion. We require the district court to consider the following factors in exercising its discretion in granting or denying a motion to set aside a default under Rule 55(c) or a default judgment under Rule 60(b)(1): (1) whether the plaintiff will be prejudiced; (2) whether the defendant has a meritorious defense; (3) whether the default was the result of the defendant's culpable conduct. Gross v. Stereo Component Systems, Inc., 700 F.2d at 122; Feliciano v. Reliant Tooling Company, Ltd., 691 F.2d at 656; Farnese v. Bagnasco, 687 F.2d at 764.

The threshold question in this case is whether Golden has established a meritorious defense. This is the critical issue because without a meritorious defense Golden could not win at trial. Therefore, there would be no point in setting aside the default judgment and remanding for a forfeiture hearing if Golden could not demonstrate the possibility of his winning.

The showing of a meritorious defense is accomplished when "allegations of defendant's answer, if established on trial, would constitute a complete defense to the action." Tozer v. Charles A. Krause Milling Co., 189 F.2d at 244; Farnese v. Bagnasco, 687 F.2d at 764. In Tozer, supra, the plaintiff averred, and the defendant denied, that defendant's agent bound defendant for the sale of six tank cars of crude corn oil... However, defendant's answer also alleged specific facts beyond the general denial which provided the court with a basis to determine whether defendant could make out a complete defense:

Defendant alleges that the oil shipped to plaintiff was "Amerikorn Crude Oil-Mill Run" and that the sale was made "subject to the usual terms and conditions applicable to the sale of such commodity by the defendant." Defendant forthwith mailed to plaintiff memoranda and confirmations whereby it expressly negatived any express or implied warranties of quality. Thus, defendant does not appear to deny plaintiff's averment that there was an oral contract entered into between the parties on or about August 20, 1946; but there is a one hundred eighty degree disagreement as to the actual terms of that agreement.

Tozer v. Charles A. Krause Milling Co., 189 F.2d at 244. We conclude that defendant established a meritorious defense because its allegations, if established at trial, would constitute a complete defense. More recent cases decided by this court have similarly involved defendants' answers which alleged specific facts beyond simple denials or conclusionary statements. See Gross v. Stero Component Systems, Inc., 700 F.2d at 123; Feliciano v. Reliant Toolling Co., Ltd., 691 F.2d at 657; Farnese v. Bagnasco, 687 F.2d at 764.

To determine whether Golden's answer establishes a complete defense we must look to the forfeiture action itself and what is required of a defendant in order to successfully defend his property. In a forfeiture action brought under 21 U.S.C. § 881(a)(6) the government bears the initial burden of showing probable cause to believe that the property in question was intended to be used for the purpose of acquiring a controlled substance.*fn4 United States v. $2,500 in United States Currency, 689 F.2d 10, 12 (2d Cir. 1982); United States v. $83,320 in United States Currency, 682 F.2d 573, 576-77 (6th Cir. 1982). Once the government establishes probable cause the burden of proof shifts to the defendant to show that the property was not to be used for this purpose. Id. On the facts of this case the critical question relating to the showing of a meritorious defense is whether Golden's mere assertion that the money "was neither furnished nor intended to be furnished by any person in exchange for a controlled substance," App. at 9a, constitutes a meritorious defense.

The government in the instant case has alleged facts which meet its burden of showing probable cause to believe that the money was intended to be used to purchase cocaine hydrochloride in violation of the Act. It avers that the money was seized from a residence occupied by Golden at the time of his arrest; that the money was seized in connection with his arrest for attempting to purchase the cocaine from government agents; that following an investigation of this event a federal grand jury indicted Golden, inter alia, for attempted possession of a controlled substance.

Golden neither denies any of these averments, nor questions whether the government has established probable cause. He merely asserts that the money "was neither furnished nor intended to be furnished by any person in exchange for a controlled sustance." App. at 9a. Furthermore, he fails to set forth any allegations containing facts which, if proven at trial, would constitute a meritorious defense to the forfeiture.

Golden's answer is couched solely in conclusionary language and is nothing more than a verbatim excerption of the statutory language in 21 U.S.C. § 881(a)(6). If we allow the setting aside of default judgment on the mere recitation of the relevant statutory language or a phrase in the Federal Rules of Civil Procedure, then we will be establishing a new right to automatically set aside any default judgment if counsel is diligent enough to quote the applicable statute or rule of civil procedure.

In this case, Golden's silence speaks ever so loudly. For most Americans, $55,518 is not casual pocket change which one leaves on the bureau at night. Golden offers no explanation as to what was the specific source of the $55,518. One might ask: Did he recently withdraw this money from his bank account? Did he inherit it? Was he in a check-cashing business requiring such cash for legitimate customers ? Were these profits from recent legitimate earnings? An affirmative answer to any of the above questions might raise a meritorious defense. Yet, upon scanning his answer and pleadings, one cannot find a word suggesting even one alleged fact that might provide an inference of a meritorious defense. Default judgments cannot be set aside simply because of a lawyer's artistry in offering ambiguous conclusions.

If this were an original forfeiture trial, Golden's simple denial would be insufficient to meet his burden of showing that the money was not intended to be used in exchange for a controlled substance. Therefore, Golden has not alleged facts which, "if established on trial, would constitute a complete defense to the action." Tozier v. Charles A. Krause Milling Co., 189 F.2d at 244. The district court, consequently, did not abuse its discretion in holding that Golden failed to establish a meritorious defense.

Because we agree with the Court below that Golden failed to estalish a meritorious defense, his motion to set aside the entry of default and the default judgment must be denied. Consequently, we do not decide the issues whether the government would be prejudiced by our granting Golden's motion or ...


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