Commonwealth v. Fourteen Thousand Two Hundred Dollars

O’Connor, J. The Commonwealth brought this action in 1988 under G. L. c. 94C, § 47 (d) (1988 ed.), seeking forfeiture of $14,200 alleged to have been “used, or . . . intended to be used in the procurement, manufacturing, compounding, processing, delivery or distribution of’ a controlled substance or to have been “the proceeds of a sale of a controlled substance.” In 1988, G. L. c. 94C, § 47 (d), required the Commonwealth to prove “all material facts [supporting forfeiture] by a preponderance of the evidence.” The statute was revised by St. 1989, c. 653, § 79, to provide that the “[Commonwealth shall have the burden of proving to the court the existence of probable cause to institute the action, and any . . . claimant shall then have the burden of proving that the property is not forfeitable.” The case was tried in 1991. In a memorandum of decision, the trial judge stated, “Before trial commenced, claimant presented an argument that the plaintiff should be required to establish the forfeit-ability of defendant property [the $14,200] by a preponderance of the evidence, as required by the version of [§ 47 (J)] — 3 — in effect when this lawsuit was commenced. Plaintiff opposed this motion, claiming that it was required to establish merely probable cause that the property was subject to forfeiture — the standard established by the 1989 amendments to [§ 47 (d)]. [G. L. c. 94C, § 47 (d), as appearing in St. 1989, c. 653, § 79]. I rejected claimant’s argument.” The judge reasoned that “[t]he change in the burden of proof was procedural in nature and did not affect claimant’s substantive rights.” The judge concluded that the plaintiff “ha[d] satisfied its burden of proof.” The claimant, Romualdo Reyes, Jr., appealed, and the Appeals Court determined “that the Commonwealth’s proof to support the determination that the funds seized were subject to forfeiture was inadequate under either standard” and vacated the judgment. Commonwealth v. Fourteen Thousand Two Hundred Dollars, 37 Mass. App. Ct. 159, 160 (1994). We granted the Commonwealth’s application for further appellate review. We affirm the judgment entered in the Superior Court. The judge found the following facts. On April 6, 1988, members of the Springfield police department stopped a 1982 Datsun automobile driven by Pedro Negron, Jr. The vehicle was not properly registered and the police called Roy’s Towing Company (Roy’s) to tow it to a storage lot. The police did not conduct a search of the vehicle before it was towed. Later that day, Officer Carlo Damato of the Springfield police received a call from an employee of Roy’s. Damato then went to the storage lot, where the employee spoke to him and gave him a plastic bag containing slightly more than one gram of cocaine, one marihuana cigarette, and $14,200 segregated in $1,000 bundles. In addition, the judge found that the employee had found the plastic bag containing the drugs and money under the operator’s seat of the Datsun. The employee did not testify. The judge’s finding was based on Damato’s testimony that the employee had given Damato that information. Damato’s testimony concerning what the employee had told him was admitted over the claimant’s objection that it was inadmis — 4 — sible hearsay. Whether Damato’s testimony about what the employee had told him was inadmissible hearsay is at issue in this appeal. The claimant testified that the money was his, that it had been in a bag in a rear glove compartment, that it had been derived from a legitimate source, and that he intended to use the funds to purchase real estate. The judge rejected that testimony. He found as follows: “The quantity of cocaine seized from the Negron vehicle was not large enough for me to infer that the possessor intended to distribute it to others. I find, however, that the cocaine probably was a sample derived from a larger package. I also find that the [$14,200], which was located immediately next to the cocaine, was intended to be used to purchase a larger quantity of cocaine. I also find that the funds probably were obtained as a result of sales or distributions of cocaine, and that it was going to be used again in connection with a felony narcotics transaction. . . . Accordingly, I find that the [$14,200] is subject to forfeiture under section 47 (d) of chapter 94C” (emphasis added). It is clear that the judge found “the existence of probable cause to institute the action,” as required by G. L. c. 94C, § 47 (d), as appearing in St. 1989, c. 653, § 79, thereby placing on the claimant the burden of proving that the $14,200 was not forfeitable. It is also clear that the claimant did not carry that burden. If, as the claimant contends, the Commonwealth had the burden to prove by a fair preponderance of the evidence the nexus between the $14,200 and felonious drug activity, the Commonwealth’s proof would have been legally insufficient. Officer Damato’s testimony that the employee of Roy’s had told him that the $14,200 was located with cocaine and marihuana in a plastic container stored under the Datsun’s driver’s seat would have been violative of our rule against hearsay and inadmissible to prove the truth of the employee’s assertion. Without that testimony, the evidence was insufficient as matter of law to warrant a finding of the nexus between the $14,200 and drug activity which is necessary for forfeiture. — 5 — However, a different picture emerges if, as we conclude, the trial was governed by St. 1989, c. 653, § 79. Because the trial was governed by the statute as amended, Damato’s testimony regarding the information that had been given him by the employee of Roy’s was admissible, not to prove the truth of the out-of-court statement, but simply to prove Damato’s state of mind and, in turn, the reasonableness of the Commonwealth’s decision to institute the forfeiture action, that is, to prove “probable cause to institute the action.” Since Damato’s testimony about what Roy’s employee had told him was offered only to prove that Damato was in receipt of that information, Damato’s testimony did not violate our hearsay rule. McNamara v. Honeyman, 406 Mass. 43, 55 (1989). Indeed, it was not hearsay. P.J. Liacos, Massachusetts Evidence 438 (6th ed. 1994) (“An extrajudicial statement is not hearsay when offered to prove that the person to whom it was addressed had notice or knowledge of the contents of the statement”). Id. at 435 (“The hearsay rule forbids the admission in evidence of extrajudicial statements offered to prove the truth of the matters asserted in the statements”). Id. at 436 (“The word ‘hearsay’ does not embrace an extrajudicial statement offered to prove something other than the truth of the statement”). We return to this subject below after we set forth our reason for concluding that the amended version of G. L. c. 94C, § 47 (d) is applicable to this case. We have held previously that “[i]t is only statutes regulating practice, procedure and evidence, in short, those relating to remedies and not affecting substantive rights, that commonly are treated as operating retroactively, and as applying to pending actions or causes of action.” Hein-Werner Corp. v. Jackson Indus., 364 Mass. 523, 525 (1974), and cases cited. In general, therefore, application of a procedural statute retroactively is proper. The claimant argues, however, that the amendment in question has the effect of lessening the Commonwealth’s burden of proof and that lessening the Commonwealth’s burden of proof, even in a civil forfeiture proceeding, violates the prohibition against ex post facto laws — 6 — because the forfeiture is punitive in nature. We agree, for the reasons set forth below, that the amendment lessened the Commonwealth’s burden of proof. We do not agree, however, that the forfeiture in this case is punitive in nature and violative of the prohibition against ex post facto laws. “The constitutional prohibitions against ex post facto laws . . . only apply to statutes which are penal in nature. Doris v. Police [Comm’r] of Boston, 374 Mass. 443, 450 (1978). See Weaver v. Graham, 450 U.S. 24, 29 (1981).” Department of Revenue v. Roe, 31 Mass. App. Ct. 924, 926 (1991). We have not previously addressed the question whether an action that has been brought to impose a forfeiture of the proceeds from unlawful drug sales is essentially punitive or remedial in nature. In Commonwealth v. One 1972 Chevrolet Van, 385 Mass. 198 (1982), we concluded that a forfeiture proceeding involving a motor vehicle used in the unlawful distribution of a controlled substance was punitive in nature, with the result that the claimant was constitutionally entitled to a jury trial. Id. at 204. We recognized, however, that whether civil forfeiture proceedings should be considered punitive or remedial in nature depends on the circumstances. We reasoned: “Forfeiture of a common vehicle is unlike forfeiture of either (a) items, such as drugs which are the subject matter of the crime itself, or (b) items . . . which are special instruments tailored to the commission of crimes. . . . Where a mass-produced object as common as a motor vehicle is involved, the element of punishment certainly becomes dominant, and the preventative quality of forfeiture becomes relatively insignificant, and often non-existent, so as to make the forfeiture a deprivation of property within the meaning of art. 12 [of the Massachusetts Declaration of Rights].” Id. at 201-202. The present case is significantly distinguishable from One 1972 Chevrolet Van, supra, in which for all that appeared, the property sought to be forfeited legitimately belonged to the claimant. The object of that forfeiture proceeding was punishment. Here, however, if the Commonwealth’s action were to succeed, it could only do so by establishing that the — 7 — $14,200 was intended to be used to purchase illicit drugs or that the $14,200 constituted proceeds of illegal drug sales. Thus, the action was preventive, or designed to recover illegally obtained funds, or both. The action was remedial, not punitive, and therefore the judge correctly held that St. 1989, c. 653, § 79, governed the proceedings. The constitutional prohibition against ex post facto laws was not violated. Our conclusion finds support in decisions reached by other courts. The following analysis from United States v. Tilley, 18 F.3d 295, 300 (5th Cir.), cert, denied, 115 S. Ct. 574, and cert, denied sub nom. Anderson v. United States, 115 S. Ct. 573 (1994), is germane: “The nature of the forfeiture proceeding may constitute punishment because it involves the extraction of lawfully derived property from the forfeiting party. . . . When, however, the property taken by the government was not derived from lawful activities, the forfeiting party loses nothing to which the law ever entitled him. . . . Thus, we believe the forfeiture of proceeds from illegal drug sales is more closely akin to the seizure of the proceeds from the robbery of a federal bank than the seizure of lawfully derived real property.” See United States v. Alexander, 32 F.3d 1231, 1236 (8th Cir. 1994) (“Forfeiture of proceeds cannot be considered punishment ... as it simply parts the owner from the fruits of the criminal activity.”); District Attorney of Kings County v. Iadarola, 164 Misc. 2d 204, 213 (N.Y. Sup. Ct. 1995) (“Taking away property in which a person has no possessory interest or no lawful ownership right is not punishment, but remedial”). See also United States v. $5,644,540 in U.S. Currency, 799 F.2d 1357 (9th Cir. 1986). We turn now to a consideration of the extent of the Commonwealth’s burden of proof under G. L. c. 94C, § 47 (d), as appearing in St. 1989, c. 653, § 79, which provides that the — 8 — “ [Commonwealth shall have the burden of proving to the court the existence of probable cause to institute the action, and any . . . claimant shall then have the burden of proving that the property is not forfeitable.” “[Title] 21 U.S.C. § 881 (a) (6) provides that property exchanged for or intended to be exchanged for illegal controlled substances is subject to forfeiture to the United States. Section 881 (d) directs that the burden of proof in a forfeiture action is controlled by 19 U.S.C. § 1615. Under 19 U.S.C. § 1615, the government must initially show probable cause to believe that the property was connected with illegal drug transactions. To show probable cause, the government need only show a ‘reasonable ground for belief of guilt; supported by less than prima facie proof but more than mere suspicion.’ ” (Footnotes omitted.) United States v. $250,000 in U.S. Currency, 808 F.2d 895, 897 (1987). See United States v. $5,644,540 in U.S. Currency, supra at 1363; United States v. One 56-Foot Yacht Named Tahuna, 702 F.2d 1276, 1281-1282 (9th Cir. 1983). General Laws c. 94C, § 47 (d), as amended by St. 1989, c. 653, § 79, virtually mirrors the Federal statutes and was enacted after those statutes were construed and applied by the Federal courts. It is reasonable to think that the Legislature revised § 47 (d), to achieve the result reached by the Federal statutes as construed by the Federal courts. We have held that, at a probable cause hearing in a District Court to determine whether a criminal defendant should be held for trial, “the judge ‘should view the proceeding as if it were a trial, and should find probable cause only if the Commonwealth has presented sufficient evidence to send the case to a jury.’ ” Commonwealth v. Matthews, 406 Mass. 380, 388 (1990), quoting Commonwealth v. Ortiz, 393 Mass. 523, 534 n.13 (1984). An out-of-court statement that would be inadmissible at trial would be inadmissible at a probable cause hearing also. Myers v. Commonwealth, 363 Mass. 843, 849 & n.6 (1973). On the other hand, to warrant an indictment the grand jury need only “hear sufficient evidence to establish the identity 'of the accused . . . and probable cause — 9 — to arrest him.” Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982). An indictment may be based solely on evidence of out-of-court statements. See Commonwealth v. Gibson, 368 Mass. 518, 522-525 (1975), and cases cited. Mass. R. Crim. P. 4 (c), 378 Mass. 849 (1979). “[A] requirement of sufficient evidence to establish the identity of the accused and probable cause to arrest him is considerably less exacting than a requirement of sufficient evidence to warrant a guilty finding.” Commonwealth v. O’Dell, 392 Mass. 445, 451 (1984). It is appropriate that the Commonwealth’s burden under G. L. c. 94C, § 47 (if), be similar to its burden in seeking an indictment and less than its burden at a probable cause hearing to determine whether someone should be held for trial. In the latter situation, since the Commonwealth will have the burden of proving all the essential elements of the crime charged at trial, it is right that, to hold a defendant for trial, the Commonwealth should have as a minimum that same quantum of proof. In the forfeiture situation, however, if the Commonwealth proves probable cause to proceed, in the form of sound reason to believe that the money-drug nexus exists, although the Commonwealth does not have sufficient evidence to prove its case at trial, the Commonwealth acts responsibly by instituting the action and leaving to a claimant the statutory burden of proving entitlement to the property at issue. We conclude that the Commonwealth’s evidence was sufficient to warrant the judge’s determination that probable cause existed to institute the forfeiture proceeding. That result is fair and is achieved without doing violence to our traditional hearsay rule and without creating an exception to it. Therefore, the burden was on the claimant to prove that the $14,200 was not forfeitable. He failed to carry that burden. Judgment affirmed.