US v . Browns 06-CR-071-SM 04/18/07
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
United States of America,
Government
v. Criminal N o . 06-cr-71-1,2-SM
Opinion N o . 2007 DNH 054
Elaine A . Brown and
Edward L . Brown,
Defendants
O R D E R (Ancillary Proceeding)
The State of New Hampshire has filed a petition for
ancillary proceedings to determine its rights to property owned
by the defendants and subject to partial federal criminal
forfeiture. Fed. R. C r . P. 32.2 The government has not
responded.
Counsel to the government and State shall confer and file
either a joint stipulation as to the priority of their respective
rights to the forfeited property, o r , failing agreement, the
parties shall file motions for summary judgment, supported by
legal memoranda, setting forth their respective priority claims
and the bases upon which they claim superiority. The material
facts appear to be undisputed and priority ought to be resolvable
as a matter of law. The stipulation or motions shall be filed on
or before Monday, April 2 3 , 2007.
The court notes that defendants’ real estate is subject to
partial criminal forfeiture to the following extent: $42,840.16
of the value of 27 Glen Road, West Lebanon, New Hampshire, and
$27,997.13 of the value of 401 Center of Town Road, Plainfield,
New Hampshire. Ownership of the real estate, beyond what the
government acquires through forfeiture, seemingly will remain
with defendants, albeit subject to the usual liens and
encumbrances of record. See, e.g., United States v . Serendensky,
393 F.3d 348 (2d Cir. 2004). A money judgment against defendants
in the amount of $215,890.47 (representing the forfeited money
orders whose proceeds are not traceable to the identified real
estate) will also be entered in favor of the government, giving
the government the same collection rights with respect to that
amount as a plaintiff in a civil case. United States v . Hall,
434 F.3d 4 2 , 59 (1st Cir. 2006). And, the government can be
expected to pursue civil remedies to recover all back federal
taxes, interest, and penalties owed by defendants.
The State’s interest in the residential and commercial
property appears to arise from a state tax lien dated August 2 9 ,
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2006, in the amount of $342,844.68, representing unpaid state
business taxes assessed against D r . Brown and owed for tax years
1999-2002. The State’s lien was amended as of December 2 9 , 2006,
presumably to add accumulating interest, for a total current lien
amount of $348,235.32. The State’s lien appears to have been
recorded in the appropriate land records.
Given that the government’s title to the property to be
forfeited is limited in degree and relates back to the date when
the criminal conduct was committed, it may be that there is no
priority dispute, at least not with respect to the government’s
claim of entitlement. See 21 U.S.C. § 853(n); United States v .
McClung,
6 F.Supp. 2d 5 4 8 , 600-01 (W.D. V a . 1998). And, there
may be sufficient equity in the property to satisfy both claims,
making the State’s claim unnecessary. In any event, a hearing
does not appear to be required since the material facts do not
appear to be subject to reasonable dispute.
Conclusion
The State and government shall file either a stipulation
regarding the priority of their respective rights in the
partially forfeited property, or cross-motions for summary
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judgment with respect to priority, on or before Monday, April 2 3 ,
2007.
SO ORDERED.
Steven J. McAuliffe
'Chief Judge
April 1 8 , 2007
cc: Robert J. Rabuck, Esq.
William E . Morse, Esq.
Glenn A . Perlow, Esq.
Elaine A . Brown, pro se
Edward L. Brown, pro se
U.S. Marshal
U.S. Probation
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