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UNITED STATES v. EDMOND

January 9, 1992

UNITED STATES OF AMERICA
v.
RAYFUL EDMOND, III, et al.



The opinion of the court was delivered by: CHARLES R. RICHEY

 I. Background

 On March 30, 1990, a jury returned guilty verdicts against a number of defendants in the above-captioned action. In addition, the jury returned special verdicts on Counts Six and Seven finding that the defendants' interest in each of the pieces of real property identified in Counts Six and Seven is subject to forfeiture to the United States, pursuant to 21 U.S.C. § 853.

 On April 20, 1990, the Court entered an Order of Forfeiture regarding said properties. On May 16, 1990, upon motion of defendants Rachelle Edmond, Jeffrey L. Thompson, and Raynice Thompson, the Court stayed its Order of Forfeiture pending the resolution of their appeals in the above-captioned case. The Court found that if the defendants were denied their request for a stay, they would effectively be deprived of their right to appeal the jury's forfeiture verdicts. See, e.g., American Library Ass'n v. Thornburgh, 713 F. Supp. 469, 488 (D.D.C. 1989); see also Fed. R. Crim. P. 38(e) (permitting stay of forfeiture resulting from certain drug convictions).

 Before the Court is a Petition for Claim and a Motion for Removal of the Stay of the Forfeiture Order filed by petitioner Dominion Bankshares Mortgage Corporation ("Dominion") regarding the property identified as 12207 Kingsbrook Street, Mitchellville, Maryland, which was subject to the aforementioned orders. Dominion holds the deed of trust secured by the property.

 Dominion contends that it is an innocent lienholder in the property. Dominion purchased the mortgage to the property on September 24, 1986, seventeen months before the defendants Jeffrey and Raynice Thompson purchased the property and assumed the mortgage. Dominion incorporated the mortgage into a pool of mortgages that secures a mortgage backed security. Dominion asserts that the Thompsons have made no mortgage payments, and have been in default on the mortgage since April 1, 1989, and that under the terms of the mortgage, Dominion is empowered to foreclose on the property. See Dominion's Motion at 2-4.

 The property has been vacant since the forfeiture proceedings of two years ago. Dominion and the government agree that the vacant property risks serious depreciation in value. Further, Dominion argues that the amount owed to Dominion under the Mortgage was $ 113,137.63 as of April 1, 1991, and is increasing monthly, and estimated that the Thompson's equity in the property was less than $ 23,000 as of that date, and declining at such a rate as to be almost eliminated within a year. Dominion also notes that as issuer of the mortgage backed security, it has been and continues to be obliged to make monthly principal and interest payments totalling $ 819.83 to investors, although no mortgage payments have been received since April 1, 1989. See Dominion's Motion at 4-5.

 Dominion seeks a removal of the stay of the forfeiture order, an order that the property be Zold, a declaration of its legal interest in the property, an order that the government pay the mortgage payments to Dominion until the sale of the property, and require the government to pay the sale proceeds first to the United States Marshal for the costs of maintaining the property and then to pay Dominion the amounts owed. The government agrees that the stay should be lifted and the property sold to protect all interests, but requests that the sale take place pursuant to the interlocutory sale provisions of 19 U.S.C. § 1612(a) and 28 U.S.C. § 2001. The defendants Raynice and Jeffrey Thompson oppose the Motion for Removal of the Stay on the ground that it deprives them of their right to appeal the jury's forfeiture verdicts.

 II. Analysis

 There is a dearth of authority on the question of the procedures which should be followed in lifting a stay of an order of forfeiture in a case in which an appeal is pending. In fact, the adjudication of the rights of third parties in forfeiture actions in general has been subject to a great deal of confusion. See e.g., M. Goldsmith and M. Linderman, "Asset Forfeiture and Third Party Rights: The Need for Further Law Reform," 1989 Duke L. J. 1254 (1989); T. Reed, "Criminal Forefeiture Under the Comprehensive Forfeiture Act of 1984: Raising the Stakes," 22 Am. Crim. L. Rev. 747, 749, 769-76 (1985). The statute itself provides contradicting messages. It states in subsection (k) that:

 Except as provided in subsection (n) of this section, no party claiming an interest in property subject to forfeiture under this section may--

 (1) intervene in a trial or appeal of a criminal case involving the forfeiture of such property under this subchapter

 21 U.S.C. § 853(k).

 Subsection (n) allows third-parties to petition for an adjudication of their interests in forfeited property once an order of forfeiture has been entered. 21 U.S.C. § 853(n)(2). After a hearing, the statute allows for an amendment of the forfeiture order if the Court determines that the petitioner has a legal interest in the property ...


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