UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Civil No. 05-cv-178-JD

Land and Buildings Located

at 4 Meetinghouse Terrace,

Bedford, New Hampshire, et al.

SEALED ORDER

This is a civil forfeiture action brought pursuant to 21

U.S.C. § 881. After Edward D. Berthiaume recently filed an

appearance, pro se, in this case, the United States moved to

strike his appearance, asserting that he lacks standing because

he did not file a timely claim and answer. In his response,

Berthiaume acknowledges that he did not file a claim or an answer

within the time allowed but explains that his previous counsel is

to blame and asks the court to accept his claim and answer, a

single document that was filed on August 7, 2006.

The government filed a verified complaint for forfeiture of

certain property including land and buildings located at 551

Silver Street, Manchester, New Hampshire, owned by Edward

Berthiaume, on May 25, 2005, and filed the notice of the

complaint the same day. An amended complaint and amended notice

were filed on July 1, 2005. On August 15, 2005, Berthiaume’s

counsel in the related criminal proceeding, Beryl W. Cohen, filed

an appearance, pro hac vice, in the forfeiture proceeding. The

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affidavit of service, filed on September 12, 2005, shows that

copies of the amended complaint, amended notice, lis pendens, and

notice of the ECF case were sent return receipt requested to

Cohen on August 29, 2005, and that the receipt was returned.

Cohen filed a motion on Berthiaume’s behalf on October 6,

2006, to extend the time to file a claim and answer and filed a

motion to appear pro hac vice the same day. The motion to extend

the time was granted on October 11, 2006, and the deadline was

extended to October 27, 2006. The motion to appear pro hac vice

was granted on October 27, 2005, on the condition that Cohen

submit an ECF registration within ten days. On December 12,

2005, the court issued an order that Cohen had not submitted the

ECF form and that his appearance would be stricken on December

22, 2005. On January 3, 2006, the court ordered Berthiaume to

enter an appearance by counsel or file a pro se appearance by

January 23, 2006. On February 17, 2006, the court ordered

Berthiaume to advise the court by March 10, 2006, of a new

attorney who would represent him or to enter an appearance to

proceed pro se. On March 14, 2006, Berthiaume was dismissed

without prejudice as a potential claimant due to his failure to

comply with the orders requiring that an appearance be filed pro

se or by counsel on his behalf. Attorney Donald J. Perrault

filed an appearance on behalf of Berthiaume on April 18, 2006. 

On July 12, 2006, Berthiaume filed a notice of pro se appearance.

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The government has listed Perrault as counsel for Berthiaume

in most of its certificates of service filed after April 18. 

Most recently, the certificates of service for the government’s

motion to enlarge the seal period filed on July 26 and the motion

to strike Berthiaume’s pro se appearance filed on July 24 both

list Perrault as counsel for Berthiaume. The docket does not

indicate that Perrault has withdrawn his appearance. Berthiaume

does not mention Perrault in his notice of pro se appearance or

in his motion for appointment of counsel. The government has not

raised Perrault’s representation of Berthiaume in its motion to

strike Berthiaume’s pro se appearance.

Discussion

“Rule C of the Supplemental Rules for Certain Admiralty and

Maritime Claims sets forth the procedural matrix that applies to

judicial forfeitures initiated under 21 U.S.C. § 881.” United

States v. One Star Class Sloop Sailboat, --- F.3d ---, 2006 WL

2361268, *4 (1st Cir. Aug. 16, 2006). Rule C(6)(a) provides that

“a person who asserts an interest in or right against the

property that is the subject of the action must file a verified

statement identifying the interest or right: (A) within 30 days

after the earlier of (1) the date of service of the Governments’s

complaint or (2) completed publication of notice under Rule C(4),

or (B) within the time that the court allows.” A verified

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statement, previously a verified claim, is a sworn notice of an

interest in the subject property that puts the claimant at risk

of perjury for false claims. United States v. $125,938.62, 370

F.3d 1325, 1328 (11th Cir. 2004); United States v. $23,000 in

U.S. Currency, 356 F.3d 157, 161 & 163 (1st Cir. 2004). An

answer must be served and filed within twenty days after filing

the verified statement of interest. Rule C(6)(a)(iii). 

The government contends that Berthiaume’s pro se appearance

must be stricken because he lacks standing in this case due to

his failure to file a timely claim and answer. Berthiaume

contends that the delay in filing his claim and answer is due to

his counsel’s incompetence and should be excused. Berthiaume

also requests that counsel be appointed to represent him in this

matter.

If a statement is not properly filed pursuant to Rule C(6),

“a putative claimant lacks standing to contest forfeiture of the

property.” United States v. Approximately 2,538.85 Shares of

Stock Certificates, 988 F.2d 1281, 1284 (1st Cir. 1993). Because

Berthiaume did not file a verified statement or an answer and did

not file an appearance after being instructed twice to do so with

notice that his claim would be dismissed in the absence of an

appearance, he lost standing to proceed in this case. The

dismissal of his claim without prejudice, however, was not a

final judgment, and no judgment has been entered in this case. 

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Therefore, Berthiaume’s situation is analogous to a party who has

had default entered against him but has not yet had a judgment of

default entered. See $23,000 in U.S. Currency, 356 F.3d at 163. 

In essence, Berthiaume’s pro se appearance is more appropriately

construed as an effort to set aside the entry of default.

“For good cause shown, the court may set aside an entry of

default . . . .” Fed. R. Civ. P. 55(c). The good cause standard

in this context is liberally construed. Venegas-Hernandez v.

Sonolux Records, 370 F.3d 183, 187 (1st Cir. 2004). The relevant

factors for the court to consider in determining whether good

cause has been shown are “whether (1) the default was willful,

(2) a set-aside would prejudice plaintiff, and (3) the alleged

defense was meritorious.” $23,000 in U.S. Currency, 356 F.3d at

164.

Berthiaume asserts persuasively that the delay and failure

to file an appearance was caused by his counsel’s inaction,

compounded by allegedly misleading representations made to

Berthiaume. Counsel’s mistakes and failures, in the absence of

fault attributable to the client, may provide cause to set aside

a default. See United States v. Proceeds of Sale of 3,888 Pounds

Atl. Sea Scallops, 857 F.2d 46, 49 (1st Cir. 1988). At least on

the present record, it does not appear that Berthiaume’s default

was willful. The government would not be prejudiced by allowing

Berthiaume to file now. Another claimant has not yet filed an

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answer to the government’s complaint, although he previously

filed a verified statement of interest in property that is the

subject of the complaint. The court will not evaluate at this

time the merits of Berthiaume’s claim and answer. 

Although far from overwhelming, the court concludes that

grounds exist to set aside the default entered against

Berthiaume. Because an appearance has already been entered on

Berthiaume’s behalf by Attorney Perrault, he cannot also appear

pro se. Attorney Perrault has not participated in this case in

any way, however. Before deciding whether Berthiaume will

proceed pro se or whether counsel may be appointed pursuant to 18

U.S.C. § 983(b), the issue of Attorney Perrault’s status in this

case must be resolved. 

Conclusion

For the foregoing reasons, the government’s motion to strike

pro se appearance (document no. 85) is denied. Berthiaume’s

motion for appointment of counsel (document no. 91) is denied

without prejudice to refile if Berthiaume is not represented by

Attorney Perrault.

A copy of this order will be sent to Donald J. Perrault,

Esq., at the address provided in his notice of appearance. 

Attorney Perrault shall respond on or before September 8, 2006,

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either by affirming that he represents Berthiaume in this case or

by filing a motion to withdraw from representation. 

The government’s motion to enlarge the seal period (document

no. 86) is granted.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

August 24, 2006

cc: Peter D. Anderson, Esquire

Ra. Matthew Cairns, Esquire

George T. Campbell, III, Esquire

William E. Christie, Esquire

Michael J. Iacopino, Esquire

Victor Manougian, Esquire

Douglas J. Miller, Esquire

Donald J. Perrault, Esquire

Robert J. Rabuck, Esquire

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