Opinion
CRIMINAL NO. CCB-03-0196
May 25, 2004
MEMORANDUM AND ORDER
John K. Zwerling, Joshua Treem, and their respective law firms have filed a Motion for Conditional Appearance. They ask the court to set aside a lis pendens filed by the government in Talbot County, Maryland, against property located at 28692 Edgemere Road, and to permit the sale of that property so that the proceeds can be used to pay their legal fees, without fear of forfeiture, if they enter an appearance on behalf of defendant Gregory Dutcher. For several reasons, the motion will be denied.
First, Messrs. Zwerling and Treem have no standing. See United States v. 1977 Porsche Carrera 911 VIN 9117201924. License No. 459 DWR. 946 F.2d 30, 33 (5th Cir. 1991). These attorneys neither own the property nor represent the owner, whoever that may be. Mr. Dutcher, if he is the owner, has not brought this motion or shown any inability to assert his own interest. See Tesmer v. Granholm, 333 F.3d 683, 691 (6th Cir. 2003), cert. granted, 124 S.Ct. 1144 (2004).
Second, no Sixth Amendment violation has been shown, as Mr. Dutcher is ably represented, at public expense, by two Assistant Federal Public Defenders. Until Mr. Dutcher makes a sufficient showing that he owns untainted assets which have been improperly seized and which he needs to obtain counsel of his choice, he has no right to relief under United States v. Farmer. 274 F.3d 800, 801 (4th Cir. 2001), or United States v. Najjar. 57 F. Supp.2d 205, 207 (D. Md. 1999). Further, if the government is correct that the property is forfeitable, then it belongs to the government and will not be available to pay legal fees.Caplin Drysdale. Chartered v. United States. 491 U.S. 617, 626-27 (1989); United States v. Moffitt. Zwerling Kemler. P.C., 83 F.3d 660, 668-69 (4th Cir. 1996).
Finally, the use of a lis pendens does not amount to a "seizure."See United States v. James Daniel Good Real Prop., 510 U.S. 43, 59 (1993); United States v. Register. 182 F.3d 820, 835-36 (11th Cir. 1999). Though ordinarily an indictment alleging forfeiture is obtained before a lis pendens is filed, see, e.g., Register. 182 F.3d at 824-25, the government has explained the timing and proffers it will seek a superseding indictment for that purpose. In the meantime, the lis pendens puts third parties on notice of a potential claim to the property without preventing the sale of that property under Maryland law.See United States v. St. Pierre. 950 F. Supp. 334, 337 (M.D. Fla. 1996); DeShields v. Broadwater. 338 Md. 422, 434-37 (1995).
If a properly supported motion were filed by Mr. Dutcher underUnited States v. Farmer, the court would consider holding a hearing even though a lis pendens is not the equivalent of a seizure.
Accordingly, the Conditional Motion to Enter Appearance is Denied.
SO ORDERED.