US v. Rivera-Ortiz, et al
Filing
OPINION issued by Sandra L. Lynch, Appellate Judge; Bruce M. Selya, Appellate Judge and Kermit V. Lipez, Appellate Judge. Published. [14-2323]
Case: 14-2323
Document: 00116971866
Page: 1
Date Filed: 03/14/2016
Entry ID: 5984365
United States Court of Appeals
For the First Circuit
No. 14-2323
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
URBAN LOT ST G 103, GUAYAMA AND OTHER ASSETS,
Defendants in Rem,
MYRNA RIVERA-ORTIZ and ENRIQUE RODRÍGUEZ-NARVÁEZ,
Claimants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Lynch, Selya and Lipez,
Circuit Judges.
Enrique J. Mendoza Méndez and Mendoza Law Offices on brief
for appellants.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Tiffany V. Monrose, Assistant United States
Attorney, on brief for appellee.
March 14, 2016
Case: 14-2323
Document: 00116971866
Page: 2
SELYA, Circuit Judge.
Date Filed: 03/14/2016
Entry ID: 5984365
The underlying case is one for
civil forfeiture arising in the aftermath of a 1993 criminal
prosecution mounted in the United States District Court for the
Southern District of New York.
There, a federal grand jury
indicted claimant-appellant Enrique Rodríguez-Narváez on drugtrafficking and money laundering charges.1
In due course, the appellant entered a guilty plea to a
single count charging money laundering violations.
counts
were
appellant.
dismissed,
and
the
district
court
The other
sentenced
the
As part of his plea agreement in the criminal case,
the appellant agreed to litigate all forfeiture issues related to
the criminal charges in the District of Puerto Rico (where a
forfeiture action already had been instituted).
The government had filed its forfeiture action in the
United States District Court for the District of Puerto Rico on
March 26, 1993.
In that action, the government asserted that
several parcels of real estate and the appellant's interests in
certain businesses were forfeitable, but it did not mention any
interest of the appellant in a professional basketball team called
Los Brujos of Guayama (the Franchise).
After some skirmishing
(not relevant here), the parties reached a settlement.
1
The
Rodríguez-Narváez's spouse, Myrna Rivera-Ortiz, appears as
an additional claimant and appellant. For ease in exposition, we
treat Rodríguez-Narváez as if he were the lone claimant and
appellant.
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settlement agreement did not focus on, or even mention, the
Franchise.
The Puerto Rico district court approved the settlement
on September 30, 1996, and the government agreed "to release and
return to [the claimants] all their personal properties that were
seized during the present case."
Years of procedural wrangling followed.
Eventually (in
June of 2005), the appellant filed the last in a series of motions
for
execution
of
judgment,
seeking
compensation
for
the
government's alleged seizure of the Franchise ancillary to the
criminal case.
The government objected, arguing (among other
things) that it had never seized the Franchise. The district court
conducted
an
evidentiary
hearing
(taking
testimony
on
two
different days) and denied the appellant's motion in an unpublished
order.
This timely appeal ensued.
In this venue, the appellant claims that he owned an
interest
in
the
Franchise;
that
the
government
seized
that
interest; and that he is entitled to compensation because the
government failed to return the confiscated property to him.
The
government does not challenge the first of these claims, but it
denies
that
it
ever
seized
the
appellant's
interest
in
the
Franchise and, accordingly, it also denies that any compensation
is due.
The docket in the criminal case is illuminating.
It
shows that, while the criminal case was pending, the government
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Case: 14-2323
sought
Document: 00116971866
Page: 4
to
potentially
preserve,
appellant's
as
a
interest
in
the
Date Filed: 03/14/2016
forfeitable
Franchise.
At
the
Entry ID: 5984365
asset,
the
government's
request, the New York district court, on June 28, 1993, issued a
post-indictment restraining order prohibiting the appellant from
having
any
However,
contact
the
with,
restraining
or
influence
order
over,
the
specifically
Franchise.
permitted
the
Franchise to remain in operation.
The
government
subsequently
determined
that
it
was
inadvisable to attempt to preserve the appellant's interest in the
Franchise for potential forfeiture.
Thus, at the government's
instance, the court released both the Franchise and the appellant's
interest therein from the restraining order on August 27, 1997.
We find nothing in the court records (or elsewhere, for
that matter) to suggest that the government seized the Franchise
when it obtained the restraining order from the New York district
court.
Though that order effectively prevented the appellant from
participating in the affairs of the Franchise, it did not divest
him of his proprietary interest.
Rather, the order — in pertinent
part — merely sought to ensure the availability of property (the
appellant's interest in the Franchise) pending disposition of the
criminal charges.
613 (1989).
See United States v. Monsanto, 491 U.S. 600,
A seizure is "some meaningful interference with an
individual's possessory interests in [the designated] property,"
United States v. Jacobsen, 466 U.S. 109, 113 (1984), and no seizure
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occurred
here.
To
the
Page: 5
Date Filed: 03/14/2016
contrary,
the
restraining
Entry ID: 5984365
order
was
carefully drawn to separate the appellant from, but not deprive
him of, the Franchise.
By like token, the subsequent forfeiture action does not
furnish a basis for the appellant's claim that the Franchise was
seized.
The complaint in that action did not refer, directly or
indirectly, to the Franchise; and the settlement agreement in the
forfeiture action did not include the Franchise.
If more were needed — and we do not think that it is —
the district court wisely conducted an evidentiary hearing.
The
court found that the Franchise belonged to the league, not to any
individual, and that the appellant was merely the holder of the
Franchise.
We review that finding for clear error.
States v. Guzman, 282 F.3d 56, 58 (1st Cir. 2002).
See United
In doing so,
we remain mindful that findings of fact are not clearly erroneous
unless,
after
reviewing
them,
we
are
left
conviction that a mistake has been made.
with
the
abiding
See United States v.
U.S. Gypsum Co., 333 U.S. 364, 395 (1948); Fed. Refin. Co., Inc.
v. Klock, 352 F.3d 16, 27 (1st Cir. 2003).
Measured against this
benchmark, the district court's finding is not clearly erroneous.
In an effort to blunt the force of this logic, the
appellant suggests that he is entitled to lost Franchise profits
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for the period when the restraining order was in effect.2
This
suggestion is groundless.
The district court's findings of fact defenestrate this
claim.
The court supportably found that, throughout the pendency
of the restraining order, the Franchise was in substantial debt.
There were, then, no profits to be lost.
The
appellant
tries
to
undermine
these
findings
by
noting that paragraph 4(c) of the restraining order authorized the
United States Marshals Service (USMS) to "[o]pen a holding account
into which all profits of the operation of the FRANCHISE shall be
deposited [and] held in escrow pending the disposition of the
criminal and forfeiture proceedings."
This initiative falls flat:
the district court supportably found that, regardless of the
authorization, "[n]o profits were ever deposited in any account
because the Government recognized that the basketball franchise
was in substantial debt."
In making this finding, the court
credited the testimony of a government official that the USMS never
took
any
Accepting
substantial
this
action
testimony,
with
the
respect
court
to
made
the
a
Franchise.
credibility
determination, and we will not normally disturb the factfinder's
2
The government argues that the claim for lost profits is
stillborn because it should have been brought in the forum where
the restraining order was issued (New York) rather than in Puerto
Rico.
Because the claim fails on the merits, we bypass this
procedural riposte. See, e.g., Royal Siam Corp. v. Chertoff, 484
F.3d 139, 144 (1st Cir. 2007).
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credibility choices.
(1st Cir. 2001).
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Date Filed: 03/14/2016
Entry ID: 5984365
See United States v. Laine, 270 F.3d 71, 75
We have no reason to do so here.
We need go no further.
To paraphrase the able district
judge, "a party cannot be ordered to return property that the party
never possessed."
Affirmed.
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