United States v. Osvaldo Calderin-Pascual, a/k/a Cubano, a/k/a Calde

United States Court of Appeals
For the First Circuit
No. 24-1836
UNITED STATES,
Appellee,
v.
OSVALDO CALDERIN-PASCUAL, a/k/a Cubano, a/k/a Calde,
Defendant,
DAVID CALDERIN-PASCUAL,
Claimant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Barron, Chief Judge,
Breyer,* Associate Justice,
Gelpí, Circuit Judge.
George T. Pallas, with whom George T. Pallas, P.A. was on
brief, for appellant.
Jacob H. Larson, Assistant United States Attorney, with whom
W. Stephen Muldrow, United States Attorney, Juan Carlos
Reyes-Ramos, Assistant United States Attorney, Chief Appellate
Division, and Gabriella S. Paglieri, Assistant United States
Attorney, were on brief, for appellee.
* Hon. Stephen G. Breyer, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.

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April 3, 2026

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BARRON, Chief Judge. This appeal challenges an order
denying David Calderin-Pascual's petition in the United States
District Court for the District of Puerto Rico, in which he
asserted an ownership interest in a boat that was subject to a
preliminary order of forfeiture based on his brother's federal
convictions. For the reasons that follow, we vacate the denial
and remand for further proceedings consistent with this opinion.
I.
Under 21 U.S.C. § 853(a)(1), persons convicted of
certain crimes, like David Calderin-Pascual's brother, Osvaldo
Calderin-Pascual,1 must "forfeit to the United States . . . any
property constituting, or derived from, any proceeds the person
obtained, directly or indirectly, as the result of such violation."
If the district court "finds that property is subject to
forfeiture, it must promptly enter a preliminary order of
forfeiture . . . without regard to any third party's interest in
the property." Fed. R. Crim. P. 32.2(b)(2)(A).
Third-party claimants, like David himself, are not
without recourse, however. Upon entry of a preliminary order of
forfeiture, they may "petition the [district] court for a hearing
to evaluate [their] interest in the property." United States v.
Catala, 870 F.3d 6, 9 (1st Cir. 2017); see also Libretti v. United
1 To avoid confusion, we refer to the two brothers by their
first names.

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States, 516 U.S. 29, 44 (1995) ("[T]hird-party claimants can
establish their entitlement to return of the assets only by means
of the hearing afforded under 21 U.S.C. § 853(n).").
When a third party "files a petition asserting an
interest in the property to be forfeited, the [district] court
must conduct an ancillary proceeding." Fed. R. Crim.
P. 32.2(c)(1). Before a hearing is held on that petition, however,
see id. 32.2(c)(1)(B), the district court, taking "the facts set
forth in the petition" as true, "may, on motion, dismiss the
petition . . . for failure to state a claim," id. 32.2(c)(1)(A).
Under 21 U.S.C. § 853(n)(3), the petition must "set
forth . . . the time and circumstances of the [third party's]
acquisition of the . . . property." Relatedly, "[t]o prevail on
the merits," "a third party . . . must establish that his interest
in that specific property existed before the commission of the
crime that led to the forfeiture." Catala, 870 F.3d at 10. Thus,
to survive a motion to dismiss for failure to state a claim, it
follows that the petition must allege that the third party acquired
their interest in the property before the crime was committed.
On August 4, 2023, Osvaldo pleaded guilty pursuant to a
plea agreement to two criminal counts in the United States District
Court for the District of Puerto Rico. In doing so, he pleaded
guilty to being a participant in a conspiracy that began "in or
about May 2019." As part of the plea agreement, he agreed to

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forfeit his interest in, among other things, "[o]ne Avanti, Center
Console, [twenty-five-foot] boat," and on December 19, 2023, the
District Court issued a preliminary order of forfeiture as to that
boat.
On February 29, 2024, David, acting pro se, contested
the forfeiture under 21 U.S.C. § 853(n) and Federal Rule of
Criminal Procedure 32.2(c) by petitioning the District Court to
hold a hearing so that he could establish his ownership over the
boat. The petition alleged, under penalty of perjury, that David
"was, at the time of the [boat's] seizure, the sole and rightful
owner of" the boat. He thus requested that the District Court
hold "a hearing to contest forfeiture."
David attached four documents, all in Spanish, to the
petition. He did not provide an English translation of the
documents, but the petition described them as, respectively, a
"Boat Property Certificate, Boat Title and License, Trailer Title,
[and] Engines Receipt."
On April 25, 2024, the government moved for the District
Court to "dismiss the petition without a hearing or, alternatively,
direct [David] to file a petition that meets" the requirements of
21 U.S.C. § 853(n)(3). Specifically, the government argued that
while, "construed liberally," David's petition "provides some
information relating to the nature and extent of [David's] interest
in the [boat]," it "is silent as to the time and circumstances of

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his acquisition of his interest in the [boat]." Thus, the
government argued, the petition did "not state a plausible claim
for relief."
On May 21, 2024, David -- now represented by
counsel -- filed a response to the motion to dismiss the petition.
He argued that the petition did set forth "the time and
circumstances of his acquisition" of the boat. Alternatively, he
requested "sufficient time to amend his petition."
This responsive filing included two attachments. The
first indicated that someone named Martin Bresciani purchased the
boat at an auction on October 28, 2015. The second was an
illegible document that the petition claimed "establish[ed] that
title to the vessel was transferred from . . . Martin Bresciani to
[David] on May 6, 2017."
On August 2, 2024, the District Court entered two
orders, one granting the government's motion to dismiss and the
other denying David's petition. The District Court then, on
August 15, 2024, entered a final order of forfeiture as to
Osvaldo's interest in the boat.
This timely appeal followed.
II.
To survive a motion to dismiss, a third party's petition
contesting forfeiture "must plead 'enough facts to state a claim
to relief that is plausible on its face.'" Catala, 870 F.3d at 9

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(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
David argues that his pro se petition and supporting documents did
just that because they "clearly indicate" that he acquired
ownership of the boat "well before" 2019 -- and thus before the
conspiracy Osvaldo pleaded guilty to began. David contends that
the District Court therefore erred in granting the government's
motion to dismiss the petition. Reviewing de novo, see id., we
disagree that his filings to this point suffice to survive a motion
to dismiss.
The petition itself merely states that, "at the time of
the [boat's] seizure," David was "the sole and rightful owner of
[it]" and that he "ha[s] a valid, good faith, and legally
recognizable interest in this asset[,] which is superior to the
government." It does not allege that he was the owner of the boat
prior to 2019. In fact, it does not allege when he received title
to the boat at all.
The attachments to the petition, moreover, are all in
Spanish and were submitted without translation. As a result,
pursuant to 48 U.S.C. § 864, we are proscribed from considering
them. See United States v. Pacheco, 921 F.3d 1, 2 (1st Cir. 2019)
(noting that 48 U.S.C. § 864 "prohibits federal courts from
considering untranslated documents").
Similarly, the document appended to David's response to
the government's motion to dismiss that he contends established

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that the boat was transferred to him in 2017 appears to be in
Spanish and is, in any event, illegible. Thus, it too did not
"set forth . . . the time and circumstances of [his] acquisition
of the" boat. 21 U.S.C. § 853(n)(3).
That said, in dismissing David's petition, the District
Court did not refer to David's request in the alternative that he
be given leave to amend the petition. And while a district court's
"basis for decision need not be declared if its reasons are
apparent from the record," United States ex rel. Kelly v. Novartis
Pharms. Corp., 827 F.3d 5, 10 (1st Cir. 2016), the reasons for the
denial of that request are not apparent here, see Carmona v.
Toledo, 215 F.3d 124, 136 & n.10 (1st Cir. 2000).
True, in its briefing to us, the government advances
several rationales that, it argues, demonstrate that "the
[D]istrict [C]ourt did not abuse its discretion in rejecting the
petition without allowing David [leave] to amend." Thus, it
appears to be arguing that we should treat the District Court as
having relied on those rationales in ruling as it did,
notwithstanding that the District Court did not refer to any of
them in so ruling. But the government did not advance any of these
rationales below, which makes it hard to see how we could conclude
that the District Court impliedly adopted any -- let alone
all -- of them. Cf. Novartis Pharms. Corp., 827 F.3d at 10-11
(finding "the reasons for the [district]

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court's . . . decision . . . readily apparent" given that it
"immediately followed" the "[d]efendants' opposition memorandum,
which set out adequate bases for denial"). Moreover, we are
especially reluctant to do so when, in its motion to dismiss
David's petition -- a filing that the District Court affirmatively
cited when it dismissed the petition -- the government expressly
argued that, insofar as the District Court agreed that the petition
itself did not set forth allegations entitling David to a hearing,
either the petition should be dismissed or he should be directed
to file an amended petition.
Thus, because "[t]he present record does not disclose
what the [District Court's] basis was for the denial," we find it
"necessary to remand so that [it] can explain and/or reconsider
its decision." McDonald v. Hall, 579 F.2d 120, 122 (1st Cir.
1978). In doing so, the District Court must take into account
David's pro se status and 21 U.S.C. § 853's statutory requirement
that its provisions be "liberally construed," 21 U.S.C. § 853(o).
III.
For the foregoing reasons, we vacate the District
Court's denial of the claimant's petition and remand for further
proceedings consistent with this opinion.

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