1In the future, the government should use middle initials or

names in order to avoid the type of confusion that occurred here.

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

The government is proceeding against several properties in

this civil forfeiture action, brought pursuant to 21 U.S.C. §

881. One of the properties, located at 551 Silver Street,

Manchester, New Hampshire, is listed in the complaint as being

owned by “Edward Berthiaume.”1 After his counsel failed to

comply with court orders and he was dismissed without prejudice

due to the default, Berthiaume filed a pro se appearance. The

government moved to strike his appearance due to his failure to

timely file a claim and answer in the case.

Confusion has arisen in this case because there are two

Edward Berthiaumes with interests in properties that are subject

to forfeiture. Edward D. Berthiaume is a defendant in the

related criminal proceeding in state court, and he has an

interest in the property located at 551 Silver Street in

Manchester. His father is Edward C. Berthiaume, who is not a

criminal defendant, and who has an interest in a condominium in

Case 1:05-cv-00178-JD Document 98 Filed 09/07/06 Page 1 of 4
2

Laconia that is also subject to forfeiture in this proceeding. 

On review of the government’s motion, the court noted that

Attorney Donald J. Perrault had filed an appearance on behalf of

Edward C. Berthiaume on April 18, 2006. The court concluded that

Edward D. Berthiaume’s default should be set aside pursuant to

Federal Rule of Civil Procedure 55(c) but required further

information about the status of Attorney Perrault in the case

before deciding whether Edward D. Berthiaume would be permitted

to proceed pro se. In response, Attorney Perrault filed a motion

for clarification in which he explains that he represents Edward

C. Berthiaume, the father of Edward D. Berthiaume. Edward D.

Berthiaume confirms that Attorney Perrault has never represented

him and does not represent him in this matter. 

Edward D. Berthiaume filed a motion titled as a request to

appoint counsel, but in the motion he asks for additional time to

resolve the question of whether Attorney Perrault represents him. 

No additional time is necessary because that question has been

answered. In the previous order, the court denied Edward D.’s

then pending motion for appointment of counsel without prejudice

to refile if he were not represented by Attorney Perrault. 

Because Edward D. is not represented by counsel, he may file a

properly supported motion for the appointment of counsel in this

matter. Counsel may be appointed to represent a claimant in a

forfeiture proceeding only if the person is unable to obtain his

own counsel and is represented by appointed counsel in a related

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2Counsel may be appointed in a civil forfeiture action as

follows:

1)(A) If a person with standing to contest the

forfeiture of property in a judicial civil forfeiture

proceeding under a civil forfeiture statute is

financially unable to obtain representation by counsel,

and the person is represented by counsel appointed

under section 3006A of this title in connection with a

related criminal case, the court may authorize counsel

to represent that person with respect to the claim.

(B) In determining whether to authorize counsel to

represent a person under subparagraph (A), the court

shall take into account such factors as--

(i) the person’s standing to contest the forfeiture;

and (ii) whether the claim appears to be made in good

faith.

(2)(A) If a person with standing to contest the

forfeiture of property in a judicial civil forfeiture

proceeding under a civil forfeiture statute is

financially unable to obtain representation by counsel,

and the property subject to forfeiture is real property

that is being used by the person as a primary

residence, the court, at the request of the person,

shall insure that the person is represented by an

attorney for the Legal Services Corporation with

respect to the claim.

18 U.S.C. § 983(b).

3

criminal case or, if the property subject to forfeiture is the

person’s primary residence and he is unable to afford counsel,

the court may obtain representation from the Legal Services

Corporation.2 Such a motion shall be filed on or before

September 29, 2006.

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4

Conclusion

For the foregoing reasons, the motion for clarification

filed by Attorney Perrault (document no. 94) is granted as is

explained in this order. 

Edward D.’s motion to appoint counsel (document no. 96) is

denied without prejudice to file a properly supported motion to

appoint counsel on or before September 29, 2006. Edward D.’s

motion for an extension of time to file his answer to the

government’s complaint (document no. 95), in which he explains

that he does not have a copy of the complaint, is granted, and

the government shall immediately serve copies of the amended

complaint and amended notice of complaint on Edward D.

Berthiaume. 

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

September 7, 2006

cc: Peter D. Anderson, Esquire

R. 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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