UNITED STATES OF AMERICA, Plaintiff, v. ONE 2000 WELLS CARGO 24 FOOT LONG TRAILER, VIN # 1WC200L27004343, ITS TOOL & APPURTENANCES, in rem, Defendant.
Civil No. 00-1718-FR
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON
2002 U.S. Dist. LEXIS 6554
March 22, 2002, Decided
DISPOSITION:
[*1] Claimant's application to proceed in forma pauperis denied as moot. Claimant's motion for dismissal of counsel granted. Claimant's motion for appointment of counsel denied.
COUNSEL:
Leslie J. Westphal, Assistant United States Attorney, Portland, Oregon, for Plaintiff.
Thomas J. Hester, Assistant Federal Public Defender, Portland, Oregon, for Martin Allen Willsey, Claimant.
JUDGES:
HELEN J. FRYE, United States District Judge.
OPINIONBY:
HELEN J. FRYE
OPINION:
OPINION AND ORDER
FRYE, Judge:
The matters before the court are 1) the claimant's application to proceed in forma pauperis (# 26); 2) the claimant's motion for dismissal of counsel (# 27); and 3) the claimant's motion for appointment of counsel (# 28).
BACKGROUND
On December 26, 2000, this court issued a warrant for the seizure of one 2000 Wells Cargo 24 foot long trailer finding that there is probable cause to believe that the defendant trailer was involved in a conspiracy to launder money, and that the defendant trailer represents proceeds of an armed bank robbery. The warrant was based upon the affidavit of a special agent of the Federal Bureau of Investigation (FBI) detailing the arrest of Martin Allen [*2] Willsey for an armed bank robbery conducted on August 14, 2000. The FBI agent stated that the FBI had been investigating a series of approximately forty bank robberies in the States of Oregon, Washington, Idaho and Utah since June of 1994; that Martin Allen Willsey had been shot in the head by a bank security guard during the commission of an armed bank robbery in Clackamas, Oregon on August 14, 2000; that Willsey had confessed to robbing nineteen banks since 1993; and that the FBI believed that Willsey had robbed approximately forty-one banks since 1993. The FBI agent further stated that the FBI had executed a search warrant on August 15, 2000 at Willsey's residence in Lakeside, Arizona locating, among other things, various currency which appeared to be stained with red dye, guns, and ammunition. The defendant trailer was located at the Willsey residence at that time but was not seized.
The FBI agent further stated that he had participated briefly in an interview with Martin Allen Willsey on August 16, 2000; that Willsey had advised him that he had robbed a bank in Albuquerque, New Mexico on or about October 29, 1999; that Willsey claimed to have received more than $ 50,000 from [*3] this robbery; and that Willsey advised that he had purchased a "really nice race trailer" with the proceeds from this robbery. In addition, the FBI agent stated that he had been advised by an FBI paralegal specialist that Willsey had purchased the defendant trailer on November 29, 1999 in Phoenix, Arizona with $ 12,000 cash. The FBI agent summarized as follows:
Based upon the facts of this case, I know that the Bank of Albuquerque . . . was robbed on October 29, 1999. I know that the loss sustained by the bank was $ 52,500. I also know that Marty A. Willsey has admitted to robbing this bank and using the proceeds to purchase a race trailer. I believed this race trailer to be the same as the defendant trailer.
Affidavit, p. 7 (attached as Exhibit A to Complaint).
Martin Allen Willsey was criminally charged in the District of Oregon with committing numerous armed bank robberies. Counsel was appointed to represent Willsey in the criminal proceedings. On January 31, 2001, counsel for Willsey in the criminal proceedings moved the court and was granted permission to represent Willsey in this forfeiture action pursuant to 18 U.S.C. § 983(b)(1)(A).
On January 31, 2001, Willsey [*4] filed a claim asserting an ownership interest in the defendant trailer.
On April 6, 2001, claimant Willsey filed an answer alleging that he has never been charged with money laundering or conspiracy to launder money, and that a court in the State of Oregon lacks jurisdiction to forfeit the defendant trailer which was found in the State of Arizona.
Willsey entered pleas of guilty in six criminal cases charging him with armed bank robbery pursuant to a plea agreement with the government. On February 12, 2001, judgments were entered in these criminal cases. Willsey received combined sentences of 380 months imprisonment and approximately $ 441,966 in restitution. Willsey has since filed habeas corpus petitions under 28 U.S.C. § 2255 asserting the ineffective assistance of counsel in the criminal proceedings.
Willsey now moves the court in this forfeiture proceeding to dismiss his counsel and to appoint new counsel. Willsey contends that his counsel in this forfeiture proceeding behaved unprofessionally toward him.
APPLICABLE LAW
18 U.S.C. § 983(b)(1)(A) provides that the court may authorize counsel to represent a person with standing [*5] to contest the forfeiture of property if the person is unable to afford counsel and is represented by court-appointed counsel in connection with a related criminal proceeding. This statute further provides: "In determining whether to authorize counsel to represent a person under subparagraph (A), the court shall take into account such factors as -- (i) the person's standing to contest the forfeiture; and (ii) whether the claim appears to be made in good faith." 18 U.S.C. § 983(b)(1)(B).
RULING OF THE COURT
The court cannot and will not force claimant Willsey to continue to be represented by counsel that he believes is biased against him. Claimant Willsey's motion for dismissal of counsel is granted.
The court declines to order further representation for the claimant in this forfeiture action pursuant to 18 U.S.C. § 983(b)(1)(A). New counsel does not represent the claimant in a related criminal proceeding as provided by the statute. In addition, the court concludes that the claim does not appear to be made in good faith. Claimant Willsey has alleged no facts in his answer to challenge the finding of probable cause to believe that [*6] the defendant trailer is subject to forfeiture on the grounds that he purchased it with proceeds of a bank robbery. The United States has adequately stated jurisdiction to proceed with the forfeiture of this res. The court finds that there are no interests of justice which would be served by further appointing counsel for claimant Willsey in this action.
IT IS HEREBY ORDERED that 1) the claimant's application to proceed in forma pauperis (# 26) is deemed MOOT; 2) the claimant's motion for dismissal of counsel (# 27) is GRANTED; and 3) the claimant's motion for appointment of counsel (# 28) is DENIED.
DATED this 22nd day of March, 2002.
/s/ Helen J. Frye
United States District Judge