John Collette
3221 Ester Dome Road
Fairbanks, AK 99709
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
JOHN COLLETTE,
Case no. A00-0254 CV (JKS)
Plaintiff
v.
DRUG ENFORCEMENT ADMINISTRATION,
UNITED STATES MARSHALS SERVICE,
UNITED STATES OF AMERICA,
Defendants
MEMORANDUM IN SUPPORT OF MOTION FOR JURY TRIAL
COMES NOW, Plaintiff, John Collette appearing pro-se, offers arguments
in support of his demand for trial by jury.
I
A JURY TRIAL IS PROVIDED FOR CONTESTED
ADMINISTRATIVE FORFETIURE ACTIONS.
If Plaintiff had received timely notice of the
administrative actions against his property, and contested them to
force the conversion to a judicial question, then the right to a jury
trial would have been honored. Now, when the questions of
adequate notice for administrative forfeitures, whether the government
had used their powers to prevent the knowledge of and the defense of
the seizure of property, and other questions are now pending before the
Court, it follows that the right to a jury remains. To decide
otherwise is to agree with the proposition that a jury trial is
determined in forfeiture actions by the government providing, or not,
adequate due process. Plaintiff contends that government action
or inaction should not be the deciding factor whether a jury is allowed
for claimants seeking a remedy before the court.
II
ALTHOUGH THIS ACTION HAS BEEN DEEMED EQUITABLE, A JURISDICTION NOT
ALLOWING A FINDING OF DAMAGES BEYOND DIRECT COMPENSATION AND DOES NOT
ALLOW A TRIAL BY JURY, THE DIVERSITY OF CLAIMS IN THE COMPLAINTS ARGUE
THAT AN EQUITABLE REMEDY ALONE WILL IMPOSE AN INJUSTICE.
While the administrative forfeiture actions at issue are clearly within
the Court’s equitable jurisdiction, the claims of loss of profit and
enjoyment from the premature seizure of home, real estate, and business
clearly calls for an at law remedy. The claims are based on a
violation of civil rights caused by the Defendant agencies. An
agency of government has stepped outside is lawful bounds and has
caused demonstrable economic losses.
The questions presented in this action, and the damages sought, are not
subject to an equitable determination by the court, but rather, call
for a damage assessment reliant on a complex set of facts.
Because the right to a jury is well established in common law, there is
no justification to conclude that no right to a jury exists in cases
where the dispute involves issues in both law and equity. Suits
at common law, or suits at law, includes all lawsuits that are not
clearly of equity or admiralty. Chauffeurs, Teamsters &
Helpers Local No. 391 v. Terry 494 U.S. 558,564 (1990)
III
THE MODERN FEDERAL DISTRICT COURT HAS JURISDICTION IN FORMERLY COMMON
LAW DISPUTES. THE FORFEITURE STATUTES UNDER THE TARIFF ACT OF
1930 (19 U.S.C. 1602-1619) DO NOT RELY ON THE COURT’S JURISDICTION IN
ADMIRALTY FOR ENFORCEMENT.
In C.J. Hendry Co. v. Moore, 318 U.S. 133 (1943) the
Supreme Court inquired into whether state courts must proceed in common
law or admiralty jurisdictions when hearing forfeiture cases. It
appears clear that when the court is sitting exclusively in its
admiralty jurisdiction, a jury is not required. Hendry supports
Plaintiff’s right to a jury if the forfeiture at issue is not
exclusively maritime:
“The Court has never held or said that the admiralty
jurisdiction in a forfeiture case is exclusive, and it has repeatedly
declared that, in cases of forfeiture of articles seized on land for
violation of federal statutes, the district courts proceed as courts of
common law according to the course of the Exchequer on informations in
rem with trial by jury. The Sarah, 8 Wheat. 391, 396, note (a); Four
Hundred and Forty- Three Cans of Frozen Egg Product v. United States,
226 U.S. 172 , 33 S.Ct. 50, and cases cited. In United States v.
422 Casks of Wine, 1 Pet. 547, Justice Story defined such an action as
a libel or information in rem on the Exchequer side of the court. And
see Chief Justice Marshall's reference, in The Schooner Hoppet v.
United States, 7 Cranch 389, 393, to 'proceedings in Courts of common
law, either against the person or the thing for penalties or
forfeitures'. In all this we perceive a common understanding of judges,
lawyers and text writers, both before and after the adoption of the
Constitution of the common law nature of the procedure and judgment in
rem in forfeiture cases and of its use in such proceedings in the
Exchequer and in the American common law courts.
We conclude that the common law as received in this country at the time
of the adoption of the Constitution gave a remedy in rem in cases of
forfeiture, and that it is a 'common law remedy' and one which 'the
common law is competent to give' within the meaning of 9 of the
Judiciary Act of 1789. By that Act the states were left free to provide
such a remedy in forfeiture cases where the articles are seized upon
navigable waters of the state for violation of state law. It follows
that Smith v. Maryland, supra, was rightly decided and is not in
conflict with The Moses Taylor, supra, and cases following it, and that
the judgment of the Supreme Court of California should be affirmed.
[318 U.S. 133, 154]”
IV
A SIGNICANT PART OF THE CLAIMS IN THIS ACTION ARE
NOT
SUSEPTIBLE TO AN EQUITABLE REMEDY. WHEN THE COURT JOINED THREE
SEPARATE ACTIONS FILED BY PLAINTIFF, IT INCORPORATED DISPUTES BEST
RESOLVED IN EQUITY, ALONG WITH THOSE FOR WHICH AN AT LAW JURISDICTION
EXISTS.
If the Court determines that an at law remedy exists
for a significant part of the claims herein, it should order a jury
trial for the whole, rather than serially approach the issues, each
with a separate finder of fact. Two of the three complaints filed
identify losses and damages resulting from the unlawful taking of real
property, business property, along with articles removed from
Plaintiff’s possession without formal process of any kind. The
losses associated with this unlawful and premature taking are not
direct, cannot be readily determined with documentation, and had
economic effects far beyond the simple loss of control of real
property.
The largest claim at issue is the unlawful seizure and control of
Plaintiff’s greenhouse business for over a year before the government
was awarded possession by the court. The damages associated
with this seizure resulted in lack of income, the loss of valuable
tools essential to the operation of the business, the loss of valuable
markets, the loss of ongoing business relationships, and direct damage
to the buildings and fixtures. See F01-0028 CV. Another claim
involves the loss of Plaintiff horticultural library due to seizure of
the contents of Plaintiff’s office. This library has yet to be
accounted for. However, the mere return of the monetary value of
the books themselves does little to compensate for loss of the
elaborate collection. This rings especially true when family
archives are also lost to government seizure.
For many claims, a pure remedy in equity for return of raw value cannot
possibly address the total economic losses in their many possible
forms. A judge is quite capable of hearing and deciding
compensation for a lost object for which a purchase price is
determinable, but a jury is called for when issues of fact will
determine whether Plaintiff suffered economic loss by government
unlawfully seizing a family home and business, ejecting tenants in
rental properties, and dismantling years of business good will.
V
IF THE COURT DENYS A JURY TRIAL, THE FINDER OF FACT IN THE INITIAL
HEARING WILL IMPOSE ITS FINDINGS ON ALL FUTURE DECISIONS.
Once a fact has been “found” by a competent trier of fact, the second
trier of fact is bound by the first. This serial finding of fact
by a judge will indisputably compromise all future at law
proceedings. This argues strongly that a jury must be provided in
all suits having claims in both law and equity. In this case, a
finding by the Court that Plaintiff had been insufficiently diligent in
defense of his properties (in relation to the request for equitable
tolling of the statute of limitations for some administrative
forfeitures), would immeasurably affect other existing claims.
VI
THERE ARE CLEARLY ESTABLISHED AT LAW REMEDIES FOR SOME OF THE CLAIMS IN
THE VARIOUS COMPLAINTS. ONE COMPLAINT, F-01-0028 CV, NOW
JOINED WITH THE OTHERS, CONTAIN CAUSES OF ACTION FOR WHICH REMEDIES
EXIST UNDER THE ADMINISTRATIVE PROCEDURES ACT AND THE TAKINGS CLAUSE.
All the claims were made initially under Federal Rules of Criminal
Procedure Rule 41(e). Following the Courts refusal to entertain
the action under the criminal rules further filings were made under the
Federal Question and the APA. Due to the recent ruling in U.S. v.
Ritchie WL 2204994, (9th Cir. 2003) (finding that the District Court
must construe 41(e) claims as civil actions), this denial of
jurisdiction wrongly imposed on Plaintiff the burden refilling under
the civil rules. Following the Court’s decision not to exercise
its equitable jurisdiction over the claims filed under 41(e), Plaintiff
divided his claims into two broad categories and re-filed on: 1.
Those claims for which an at law remedy exits under the APA; and 2.
Those claims for which equitable jurisdiction is traditional.
An example of use of the APA as it pertains to some claims is in
order. In F01-0028 Plaintiff alleges losses associated with the
premature and unlawful seizure of his real estate and business.
Plaintiff admits early on that this claim is susceptible to a finding
that a remedy for the losses existed within the in rem civil actions
against his various parcels of real estate, for which he was duly
noticed. However, there exists a class of economic loss separate
from the eventual default judgment against the properties, and
therefore call for a separate remedy.
When the Federal Marshals seized and excluded the owners from the
various real properties, and took them in custody on behalf of the
Court, they were charged with maintaining value and protecting the
interests of the owners. In failing this statutory mandate, the
Federal Marshals Service wasted or converted resources not possessed by
the government. Because these resources were negligently
misplaced, unaccounted for, or converted to personal use, they cannot
possibly be included within the scope of the in rem actions against the
real property. The government failed to gain lawful possession of
many items removed from, mainly, the greenhouse property, yet, evidence
indicates they were sold at auction prior to the date of the final
ruling in the in rem actions against the property. Loretto v.
Teleprompter Manhattan CATV Corp. 458 U.S. 419 (1982 (holding: When the
“character of the governmental action is a permanent physical
occupation of real property”, there is a taking to the extent of the
occupation without regard to whether the action achieves an important
public benefit or has only minor economic impact on the owner.)
Quoting Penn Central Transportation Co. v. New York City 438 U.S.
104,124.
Another example available is in the lost or misplaced accounts
receivables owed one of the properties seized, the real property and
assets of Plaintiff’s business, Happy Creek Greenhouses.
According to Plaintiff’s records, the business was due some $30,000
from various venders at the time of seizure, yet the government has
been unable to account for this sum. See Answer 16, Affidavit of
Deputy United States Marshal Marvin L. Goffena, attached as Exhibit A.
Plaintiff maintains that any property not identified and within the
control of the Court at the time of the final judgment against a real
property, cannot fall within the scope of the action. The Court,
against circuit practice at the time, allowed the arrest and seizure of
the real properties owned by Plaintiff without benefit of notice and
hearing, and placed the property within the Court’s jurisdiction.
It was then the responsibility of the Marshals to identify and to
preserve the properties identified in the action. The Defendants
had fourteen months to do so before final judgment. Yet they
failed to account for many valuable items, identified and removed many
items of personal property not within the stated scope of the in rem
action, and failed to account for a substantial amount of funds due the
business.
Plaintiff maintains that those items not identified as within the scope
of the in rem action prior to the final ruling, yet were nonetheless
removed from Plaintiff’s possession through unlawful and premature
seizure, are excluded from the scope of the eventual default
judgment. These lost items represent demonstrable economic losses
suffered by the Plaintiff for which no equitable jurisdiction lies,
given that an at law remedy is available under the APA and the takings
clause of the Constitution.
This reasoning relies on the simple fact that a civil action must have
limits, delineated by its stated parameters, with effect for only that
time during which the claim is active. A party is not allowed to
add or subtract from the in rem actions following a final ruling,
absent a re-opening of the case through motion under Fed. R. Civ. Proc.
Rule 60. In any case, the government, if seeking an amendment to
a final ruling from an in rem action, is limited to a five-year statute
of limitations from the date of a nexus identified between a crime and
a property, a time period long expired.
Plaintiff’s reliance on the APA to provide remedy is wholly based on
the Defendant agencies causing economic loss through their
actions. The fact that the unlawful and premature seizure of real
properties was accomplished through an arrest and seizure warrant from
the district court does not exclude a later action based on harmful
agency actions. In effect, the agency is not immunized from its
actions if it causes economic loss, even if some of its actions are
sanctioned by the court.
When an agency of government applies for an arrest or seizure warrant
for a piece of property, the action is done ex parte. The
property does not yet have a human defender to point out an illegality
in the seizure. The agency must rely on law, regulation and
prudence to prevent undue harm. It is the agency’s independent
statutory responsibility, not the court’s, to see that procedure is
followed, harm is minimized, and value is identified and preserved
prior to a final ruling. In this, the record indicates that
Defendants failed to follow their lawful mandate and caused great
economic loss to the Plaintiff, well beyond the scope of the in rem
actions against the real property. The agency’s failure clearly
falls with the purview of the APA, and as such, presents claims outside
the equitable jurisdiction of the Court for which an at law remedy is
available.
VII
CONCLUSION
The arguments set forth in support of a jury trial are summarized as
follows:
1. If the right to a jury trial exists when adequate notice for a
forfeiture is provided and the claimant then converts the
administrative action to a judicial in rem action, subsequent
challenges to the forfeiture also must be decided by a jury.
2. For forfeitures conducted on land as opposed to strictly maritime
seizures, the practice of bench trials in admiralty actions are
conducted under common law where the right to a jury trial is well
established and codified under Amend. VII, U.S. Constitution and the
Judiciary Act of 1789, Section 9.
3. If part of the claims are recognized as having an at law remedy,
then prudence calls for a jury to decide all issues of fact. If a
judge first decides on the basic issues, then the second competent
trier of fact is irrevocably bound by the initial findings. If
any pending claim falls within a common law or at law jurisdiction,
then all claims must be heard by a jury in order to preserve the
discretion of the second fact finder.
4. There are several significant pending claims that have a
remedy within an established statutory framework, and as such, trial by
jury has been established as a remedy for this class of claims.
Respectfully submitted on the twenty-first day of January, 2004, by
______________________
John Collette, Plaintiff
Certification
I certify that I have mailed via first class US mail a true and correct
copy of the above MEMORANDUM IN SUPPORT OF MOTION FOR JURY TRIAL, to
Mr. James Barkeley, Federal Building and US Courthouse, 222 West
Seventh Ave., Room 253, #9, Anchorage, AK 99513, on the 21st day
of January, 2004.
___________________
John Collette