USCA1 Opinion

March 29, 1996

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 95-1923
No. 95-2016

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

ALL FUNDS, MONIES, SECURITIES, MUTUAL FUND SHARES AND STOCKS

HELD IN FIDELITY INVESTMENTS, ET AL.,

Defendant, Appellee.
__________

THOMAS E. KNEELAND, JR.,

Defendant, Appellant.
____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

___________________
____________________

Before

Torruella, Chief Judge,

___________
Stahl and Lynch, Circuit Judges.
______________
____________________

Thomas E. Kneeland, Jr. on brief pro se.

_______________________
Donald K. Stern,
_______________

United States Attorney, and Patrick M. Hamilt

_________________

Assistant United States Attorney, on brief for appellee, United Sta

of America.

____________________

____________________

Per Curiam.
___________

These

consolidated appeals

have

their

origin

in

a civil

without prejudice,

Fed.

R.

Civ.

P.

forfeiture

action

which was

on the government's

41(a)(2).

dismissed

motion, pursuant

Claimant

Thomas

to

Kneeland

challenges the dismissal; the denial of various pre-dismissal

motions, including his requests for an adversarial hearing or

entry of judgment

post-dismissal

in his

motions,

favor; and the

including

denial of

renewed

motion

summary judgment, a motion

for return of property, a

to disqualify the district

judge, and a motion

on the pleadings.1
1

Kneeland

various

for

motion

for judgment

For the following reasons, we affirm.

allegedly

operated

whereby he fraudulently promised

an

advance

fee

scheme

potential borrowers that he

could obtain funding for their projects, accepted substantial

up-front

fees, failed to arrange financing

fees, and subsequently

1993, the

or to return the

"laundered" the fees.

government received ex
__

On December 2,

parte warrants authorizing

_____

seizure of the defendant properties after persuading a United

States

Magistrate Judge

that

there was

probable cause

scope

our

to

____________________

1The
1

parties

dispute

the

of

jurisdiction.

Kneeland claims to have appealed eight separate orders by way

of eight notices of
points out
We

appeal, whereas the government correctly

that Kneeland filed

need not

resolve

only two notices

what issues

are

of appeal.

properly before

us.

Assuming without deciding that we have jurisdiction to review

each of the challenged
v.

Matthews, 427
________

orders, we would affirm.

U.S. 524,

530-32 (1976)

See Norton
___ ______

(explaining that

jurisdictional inquiry

may be

bypassed where merits

easily

favor

of

resolved

jurisdiction).

in

the

party

can be

challenging

believe

that

laundering.

they were

involved in

Thereafter,

administrative forfeiture

claim of ownership.

returned an

mail

fraud,

forfeiture.

government

proceedings and

charging Kneeland

fraud,

money

to money

initiated

Kneeland filed a

On March 30, 1994, a federal

indictment

wire

the

or traceable

with

laundering

grand jury

conspiracy,

and

criminal

The forfeiture count specifically identified the

defendant properties.

the

instant civil

U.S.C.

On May

6, 1994, the government

complaint for

period

of time,

the

progressed forward in tandem.

trial.

In the civil case,

complaint.

Back Bay,

to 18

civil and

cases

criminal

The criminal case readied for

Kneeland filed an

answer to the

Ltd., an alleged victim, filed

a late

On October 20, 1994, less than three weeks before the

criminal trial

moved

forfeiture pursuant

981(a)(1)(A).

For a

claim.

filed

to

was scheduled

stay

disposition of

in

the

civil case

the criminal matter.

to this request,

however, was

discovery

to take place,

and it

delayed, and

was allowed.

the government

pending

the

Kneeland did not object

The criminal

eventually it was

trial,

rescheduled to

take place on May 22, 1995.

On December

Kneeland

27, 1994,

while

the stay

was in

effect,

filed a motion for summary judgment in his favor on

the alleged

ground that he was the only person to "perfect a

claim" to the defendant properties.

-3-

The motion was summarily

denied.

Thereafter, Kneeland

moved to

renewed

his motion for summary judgment.

denied.

On April 24, 1995,

stay, this time

seizure.

approximately every

dismissal

of

the

summary judgment.

granted

stay and

These motions were

Kneeland again moved to lift the

requesting a

This motion was

lift the

hearing on the

merits of

the

followed by similar motions, filed

two or three days,

complaint,

On June

Kneeland's motion

an

20,

to lift

denied his various motions.

seeking, inter alia,

_____ ____

adversarial

1995, the

the stay,

hearing,

district

or

court

but otherwise

By that time, the criminal trial

had been delayed once again.

The government immediately filed a motion to dismiss the

civil case without prejudice.

On or about the same date, the

government

freezing

moved

the

in

the

defendant

criminal case

properties.

for

new

Kneeland

warrants

filed

an

"omnibus" motion objecting to the dismissal and seeking entry

of judgment

for

in his favor.

A week later, he

adversarial hearing or entry

1995, the district

denied the "omnibus"

denied

the

judgment.

motion

of judgment.

court allowed the

motion.

for

filed a motion

motion to dismiss

On July 20,

adversarial

On July 18,

1995, the

hearing

Thereafter, Kneeland filed, inter

_____

or

and

court

entry

of

alia, a renewed
____

motion for summary judgment, a motion for return of defendant

properties,

motion

to

vacate

-4-

the

dismissal

and

to

disqualify the district judge under 28 U.S.C.

motion for judgmenton thepleadings.

plaintiff's motion

for

455(a), and a

Thesemotions weredenied.

dismissal without

prejudice

pursuant to Fed. R. Civ. P. 41(a)(2) should be allowed unless

the court

prejudice.

finds that the

9 Charles

defendant will suffer

A. Wright & Arthur R.

plain legal

Miller, Federal
_______

Practice & Procedure

_____________________

2364,

decision whether or not

to grant such a dismissal

the

only

sound discretion

for

abuse of

of the

at

280 (2d

ed. 1994).

district court

discretion.

See
___

The

is within

and reviewable

Puerto Rico Maritime

_____________________

Shipping Authority v. Leith, 668 F.2d 46, 49 (1st Cir. 1981).

__________________
_____

We find no such abuse of discretion here.

As an

initial matter,

we reject

Kneeland's suggestion

that he was robbed of an imminent victory.

Lilly & Co.,

___________

abuse of

33 F.3d

716, 718-19 (6th

discretion where

the point where

defendant).

the law

See Grover v. Eli

___ ______
___

Cir. 1994)

(finding

district court dismissed

clearly dictated a

case at

result for

the

Indeed, Kneeland's argument that he was entitled

to judgment in

his favor

because the government

is a

mere

"escrow agent"

even

if

claimant.

the

we

for potential claimants is

assume

Kneeland

was

the

The government in a civil forfeiture action

money laundering

others;

arguendo that
________

utterly frivolous

rather,

statutes is

if successful,

forfeited property.

See 18 U.S.C.
___

-5-

not an

it

escrow agent

acquires

981(a),(f).

title to

only

under

for

the

We also reject Kneeland's

of

his right to

forfeiture,

argument that he was deprived

an adversarial hearing.

a claimant

must be

rebut the government's showing

States
______

Certainly, before

afforded an

opportunity to

of probable cause, see United

___ ______

v. Real Property Known & Numbered as Rural Route 1,

__________________________________________________

Box 137-B, Cutler, Ohio, 24 F.3d 845, 848-49 (6th Cir. 1994),
_______________________

as well

as to

present evidence

defenses. However, it doesn't

bearing on other

potential

follow that a civil forfeiture

action, once begun, may not be aborted.

In the instant case,

the dismissal obviated the need for a hearing.2

2

Finally, we add

that the

civil case was

still in

the

pre-discovery

devoted

stage.

Although

Kneeland

claims

to

have

many hours to the case, the record reveals that much

of his efforts were

spent on frivolous, repetitious motions.

Kneeland had gained no ground in the civil case which he lost

by the dismissal.

to

litigate two

Indeed, Kneeland benefited from not having

actions

simultaneously, and

from

certain

procedural advantages he had in the criminal proceeding.

See
___

David B. Smith, Prosecution & Defense of Forfeiture Cases

___________________________________________

1.03

(1995)

procedural

(discussing,

advantages

the

by

contrast,

government

the

enjoys

tremendous

in

civil

____________________

2Kneeland's
2

suggestion

that he

was

denied

due process

because he
also
motion

was not afforded a

fails.

Kneeland

for a

government

did not

stay; and while

diligently

"timely" post-seizure hearing

object to
the stay

prosecuted

the

the government's

was in

effect, the

related

criminal

indictment.

-6-

forfeiture

advanced and

action).

the

circumstances, we

The

criminal case

government ready

think the district

for

was

trial.

procedurally

Under

the

court properly allowed

the government's motion to dismiss the civil case.

We

have

arguments

carefully

and reject them as without

we find no error

for

in

considered

in the denial of his

Kneeland's

merit.

remaining

In particular,

post-dismissal motion

return of property since the assets were then being held

connection

error

with his

criminal case.3
3

find no

in the denial of the motion for disqualification.

district court's comments

not

We also

in its order vacating the

The

stay do

warrant an inference that it stepped outside its role to

act as

adviser to the government, and we find no evidence of

bias in

any of the court's rulings or in its handling of the

case.

See Liteky
___ ______

v.

United States, 114 S.

_____________

(1994)

(observing that judicial

rulings alone

Ct. 1147, 1157

almost never

constitute valid basis for a bias or partiality motion).

Affirmed.
_________

____________________

3Contrary
3
that

to Kneeland's suggestion,

the district

otherwise

involved

court
in the

held a

"transfer hearing"

decision

warrants.

-7-

there is no evidence

to

issue new

or was
seizure