U.S. v. Real Property Known and Numbered as Rural Route 1, Box 137-B, Cutler, Ohio

• Decision Date: 24 May 1994
• Docket Number: No. 93-3167,93-3167
• Citation: 24 F.3d 845
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. REAL PROPERTY KNOWN AND NUMBERED AS RURAL ROUTE 1, BOX 137-B, CUTLER, OHIO, Defendant, John Melvin Mayle, Claimant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 845

24 F.3d 845

UNITED STATES of America, Plaintiff-Appellee, v. REAL PROPERTY KNOWN AND NUMBERED AS RURAL ROUTE 1, BOX 137-B, CUTLER, OHIO, Defendant John Melvin Mayle, Claimant-Appellant.

No. 93-3167.

United States Court of Appeals Sixth Circuit.

Argued April 28, 1994.

Decided May 24, 1994.

Kathleen M. Brinkman, Office of U.S. Atty., Cincinnati, OH (argued), Kevin R. Conners, Office of U.S. Atty., Columbus, OH (briefed), for U.S.

Max Kravitz, Columbus, OH (argued and briefed), for John Melvin Mayle.

Before: GUY and NELSON, Circuit Judges; and QUIST, District Judge. ^*

PER CURIAM.

Claimant, John Mayle, appeals the judgment of the district court directing the forfeiture, pursuant to 21 U.S.C. Sec. 881(a)(7), of certain real property used to facilitate the manufacture and distribution of controlled substances. On appeal, Mayle raises six arguments: (1) the district court erred in refusing to grant his pretrial motion to dismiss, or, in the alternative, to stay in light of the pending criminal proceedings against him; (2) the district court erred in instructing the jury that it could draw an adverse inference from his assertion of his Fifth Amendment right against self-incrimination; (3) the district court erred in denying him an opportunity to challenge the government's showing of probable cause; (4) the jury was erroneously told that the government had carried its initial burden of establishing probable cause; (5) the district court erred in consolidating the voir dire of this case with that of another, but related, case; and (6) the district court erred in admitting certain evidence pertaining to Mayle's knowledge of illegal activities that occurred at the defendant property in the related case.

After reviewing each of Mayle's assignments of error, we find that the district court did commit reversible error in determining the government had established probable cause without giving Mayle an opportunity to rebut the government's proof. Therefore, we reverse and remand.

I.

In early 1988, the Washington County, Ohio, Sheriff's Department; the Parkersburg, West Virginia, Narcotics Task Force; and the Charleston, West Virginia, resident office of the DEA received information that a large drug ring was being operated by the Mayle family in Washington County, Ohio. Information from a number of sources indicated that the Mayles were using various sites in Washington County for the purpose of drying marijuana plants that had been either grown in Washington County or brought in from other counties. Further investigation revealed that the Mayle family was also involved in dealings with stolen property in the Southern Ohio area. Based on this information, the officers sought and obtained from the Washington County Court of Common Pleas a warrant to search property titled in the name of John Melvin Mayle, located at Rural Route 1, Box 137-B, in Cutler, Ohio.

On May 3, 1991, the Washington County Sheriff's Office executed the search warrant. In addition to finding articles of stolen property, the officers discovered marijuana and two sets of scales, including a triple beam balance scale located in the ceiling of Mayle's residence. In the basement, officers found a stack of five gallon buckets, fluorescent lights, a heater, a power converter, grow lights, an exhaust fan, reflective foil, plant food, light fixtures, power transformers, and numerous buckets and small pots. ¹

On July 8, 1991, the government filed a complaint with the district court seeking forfeiture of the Box 137-B property pursuant to 21 U.S.C. Sec. 881(a)(7) on the grounds that the property had been used or was intended for use to facilitate violations of the Country's drug laws. Accompanying the complaint was a verification of complaint and affidavit of probable cause sworn to by Basil W. Santos, a special agent for the Drug Enforcement Administration.

On July 16, 1991, in an ex parte proceeding, Magistrate Judge Mark R. Abel found that the government had established probable cause to believe Mayle's property was subject to forfeiture. A warrant of arrest in rem was issued, authorizing the seizure of the property. The United States Marshal seized the property on July 31, 1991, and served all interested parties with notice of the action.

On August 9, 1991, Mayle filed a claim for the property, and, on August 29, he filed an answer to the government's complaint in which he raised a number of affirmative defenses. All but one of these defenses, a claim of innocent ownership, were dismissed prior to trial. The court also, as will be discussed later, rejected Mayle's pretrial motions.

The trial began on September 22, 1992, and upon its completion the case was submitted to the jury with instructions to answer three interrogatories. With respect to the first interrogatory, the jury found that Mayle had proven he was not involved in illegal activities at the defendant property, but by its answers to the second and third interrogatories the jury found that Mayle did have knowledge of the illegal activities and consented to them. The court then entered a judgment forfeiting the defendant property.

II.

First, we will address Mayle's contention that the district court committed reversible error by preventing him from challenging the government's showing of probable cause. In reviewing the merits of this claim, we begin with a general discussion of forfeiture law.

Title 21 U.S.C. Sec. 881(a)(7) authorizes the forfeiture of real property "which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of [federal narcotics laws] punishable by more than one year's imprisonment[.]" To satisfy Sec. 881, "the government 'must establish probable cause to believe that a substantial connection exists between the property to be forfeited and the illegal exchange of a controlled substance.' " United States v. $67,220.00 in U.S. Currency, 957 F.2d 280, 283 (6th Cir.1992) (quoting United States v. 526 Liscum Drive, 866 F.2d 213, 216 (6th Cir.1989)). Probable cause means a reasonable ground for belief of guilt "supported by less than prima facie proof but more than mere suspicion." 526 Liscum Drive, 866 F.2d at 216 (citations omitted). In order to determine whether probable cause exists, the court "must examine the entire record, including evidence developed after the seizure[.]" $67,220.00 in U.S. Currency, 957 F.2d at 284. The responsibility for determining whether the government has met its burden of proving probable cause rests with the court. 19 U.S.C. Sec. 1615.

Once probable cause is shown, the burden of proof shifts to the claimant to show by a preponderance of the evidence that the property is not subject to forfeiture. United States v. $22,287.00, U.S. Currency, 709 F.2d 442, 446 (6th Cir.1983). The claimant is entitled to an opportunity to refute the government's showing of probable cause. The claimant may attack the government's proofs as to probable cause at trial or by pretrial motion. See, e.g., United States v. $53,082.00 in U.S. Currency, 985 F.2d 245 (6th Cir.1993) (affirming the district court's grant of summary judgment in favor of the claimants because the government could not establish probable cause); $67,220.00 in U.S. Currency, 957 F.2d at 287 (reversing the district court's grant of summary judgment in favor of the claimants after finding the government had carried its initial burden of establishing probable cause); United States v. 105,800 Shares of Common Stock, 830 F.Supp. 1101, 1133 n. 49 (N.D.Ill.1993) ("At trial, [the claimant] may be able to refute the government's showing of probable cause."). Occasionally, a court will hold a separate adversarial hearing in order to determine whether probable cause exists. See, e.g., United States v. $83,320 in U.S. Currency, 682 F.2d 573 (6th Cir.1982) (affirming a finding of probable cause based on evidence produced at a hearing held by the district court in which the claimant had the opportunity to cross-examine the government's witnesses and present his own witnesses). While these cases may differ procedurally, each of them demonstrates that claimants must be afforded an opportunity to rebut the government's showing of probable cause.

Here, a disagreement between Mayle and the government concerning probable cause appears as early as in the court's final pretrial order dated July 17, 1992. That order states:

It is the United States opinion that the uncontroverted facts are set forth in the Verification of Complaint and Affidavit of Probable Cause attached to the United States Complaint. The record in this case indicates that on July 16, 1991, this Court found probable cause to believe that the defendant property is subject to forfeiture under 21 U.S.C. Sec. 881. It is the Claimant's opinion that these facts have to be proved at trial.

The dispute over probable cause was later settled in the district court's order of September 21, 1992. Mayle previously had filed a motion to exclude hearsay evidence from trial, or, in the alternative, to bifurcate the forfeiture trial. He conceded that certain hearsay was admissible for the court's probable cause determination, but argued that it would be inadmissible at the trial before the jury. The court's order states:

The Court finds the motion to be MOOT. On July 16, 1991, this Court found that probable cause exists to believe that the defendant property is subject to forfeiture under 21 U.S.C. Sec. 881. Accordingly, the only issue for trial is the defense issue.

Mayle contends that this order, and the manner in which the district court addressed the probable cause issue in general, constitutes reversible error. We agree. ²

By stating that Mayle's motion was moot, the district court indicated that it had already found that the government had established probable cause. The court refers to the magistrate judge's order of July 16, 1991, which directed the United States Marshal's...