UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Civil No. 05-cv-085-JM

$38,000.00 US Currency

O R D E R

 After a jury verdict determining that the government was

entitled to the forfeiture of the $38,000.00 seized from Alvin

Drake, Mr. Drake moved: 

(a) for a new trial (document no. 81);

(b) for judgment as a matter of law (document no. 80); and

(c) to amend the judgment (document no. 82). 

The government objects and moves for a final order of forfeiture. 

1. Motion For Judgment as a Matter of Law (“MJOL”). 

Claimant moved for “MJOL” at the conclusion of plaintiff’s

case but did not renew the motion at the close of all the

evidence. “If a (party) wishes to renew a motion for judgment as

a matter of law at the post-trial stage, with a view to having

denial of that motion considered by the court of appeals, the

defendant is required to have moved for judgment as a matter of

law at the close of all the evidence.” Keisling v. SER-Jobs For

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Progress, Inc., 19 F.3d 755, 758 (1st Cir. 1994); See, Rivera

Castillo v . Autokirey, Inc., 379 F.3d 4, 9 (1st Cir. 2004). 

Claimant has waived any sufficiency of the evidence argument

under Fed. R. Civ. P. 50. 

The motion (document no. 80) is denied. 

2. Motion For A New Trial. 

Claimant moves for a new trial under Rule 59 alleging errors

in the introduction of evidence at the trial; namely: 

A. A “sex toy” seized from the claimant’s

belongings on January 21, 2005; 

B. Prior conduct of both the claimant and his

ex-wife relating to “supposed drug

transactions” which were remote, not

particularly probative of any issues in the

case and inherently prejudicial; 

C. The “kids raid” on the Drake barn in October

of 2004. 

A. The “sex toy”. 

A “sex toy” was located in a bank bag located during the

search of claimant’s truck. The toy was relevant to no issue in

the case and bringing it out on redirect was prejudicial. I

sustained the objection, struck the testimony and instructed the

jury to disregard the answer. Jurors are indeed presumed to

follow such instructions. See Ramirez v. Debs-Elias, M.D., 407

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F.3d 444, 448 (1st Cir. 2005); United States v. Sepulveda, 15

F.3d 1161, 1184 (1st Cir. 1993). Claimant also did not seek a

mistrial and, while the testimony was prejudicial, the prejudice

was mitigated by the instruction. 

B. Claimant and his ex-wife’s prior drug conduct. 

The evidence at trial about prior use of marijuana by

claimant and/or his wife consisted of four areas: 

a. Use of drug proceeds to purchase property in

Vermont; 

b. Civil “convictions” of Alvin Drake in Maine; 

c. Civil “convictions” of Mary Drake in Maine; and

d. Alvin Drake’s alleged use admission and/or

observations by Officer Ruel. 

Alvin Drake testified in his deposition that he had never

used marijuana. That deposition was a full exhibit. See Exhibit

15. As discussed at side bar, that testimony and Mr. Drake’s

testimony as to marijuana usage in Maine was subject to

impeachment by the Maine police officer and court records. 

Further, the testimony of Ruel was properly admitted both to

impeach and because of its relevance to the initial arrest and

seizure of the money. 

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The question as to the Vermont real estate acquisition

evoked a denial by Mrs. Drake. The government had a good faith

basis for the question (e.g. Mrs. Labranche). I found Mrs.

Labranche not credible and did not permit her to testify. 

The evidence was admissible and the question on the Vermont

property did not prejudice claimant. There matters do not

constitute a basis for a new trial under Rule 59. 

C. The “kids raid” on the barn. 

Claimant lists this as a claimed basis for a new trial but

has failed to provide any law or a single fact to support the

claim. It is not appropriate for the court to guess at

claimant’s argument. The testimony was admissible. 

The motion (document no. 81) is denied. 

3. Motion to Amend The Judgment. 

Claimant maintains that the forfeited amount should be

reduced by ninety percent (90%) because Ruel’s testimony as to

the marijuana odor on the $38,000.00 and Rambo’s “drug alert” on

the money, together with the testimony of Drake’s legitimate cash

business, provide a basis for forfeiture of only an insignificant

amount of the money. Forfeiture of the money, therefore, would

violate the Eighth Amendment. 

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Claimant has not pointed to any fact in the record which

would permit a finding that a substantial portion of the

$38,000.00 is unrelated to drugs. Furthermore, as the United

States has pointed out, and I adopt, the law does not support

claimant’s position. See document no. 86-2, pp. 3-5. 

The motion (document no. 82) is denied. 

4. Final Order of Forfeiture. 

The motion (document no. 83.1) is granted and the Order is

issued by separate order. 

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: November 16, 2006

cc: David H. Bownes, Esq.

 Robert J. Rabuck, Esq.

 Jean B. Weld, Esq.

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