US v. Property Ident. as 3120 Banneker Dr. NE

• Decision Date: 12 August 1988
• Docket Number: Civ. A. No. 87-2124.
• Citation: 691 F. Supp. 497
• Parties: UNITED STATES of America, Plaintiff, v. PROPERTY IDENTIFIED AS 3120 BANNEKER DRIVE, N.E., WASHINGTON, D.C., Containing a Two-Story Townhouse, Further Described as Square 4325, Lot 279, Defendant.
• Court: U.S. District Court — District of Columbia

691 F. Supp. 497

UNITED STATES of America, Plaintiff, v. PROPERTY IDENTIFIED AS 3120 BANNEKER DRIVE, N.E., WASHINGTON, D.C., Containing a Two-Story Townhouse, Further Described as Square 4325, Lot 279, Defendant.

Civ. A. No. 87-2124.

United States District Court, District of Columbia.

August 12, 1988.

Robert E.L. Eaton, Jr., Atty., William O'Malley, Asst. U.S. Attys. and, on brief, John D. Bates, Asst. U.S. Atty., and Jay B. Stephens, U.S. Atty., Washington, D.C., for plaintiff.

Thomas Dyson, Washington, D.C., for defendant.

CHARLES R. RICHEY, District Judge.

Introduction

The following facts are undisputed. On July 6, 1987, Detective Robert J. Flatley of the District of Columbia Metropolitan Police received a tip that a woman was being held against her will at 3120 Banneker Drive, N.E., Washington, D.C., by Calvin Ellis Knox, also known as Calvin "Sonny" Knox. Affidavit of Sergeant John J. Hickey, Jr. in connection with Application for a Seizure Warrant ("First Hickey Affidavit"), 1. Upon receiving this information, the police went to 3120 Banneker Drive, N.E., freed the woman, and arrested Calvin Knox for kidnapping. Id. at 2.

When Mr. Knox was searched incident to his arrest, the police discovered a glassine bag containing a white powder in his pocket. Id. Both the field test performed by the police and the test subsequently performed at the DEA Laboratories revealed that this bag contained 3 ounces of cocaine. Plaintiff's Opposition to Claimant's Motion for Summary Judgment, Exhibits II and III.

This was not the only link the police discovered between Calvin Knox, 3120 Banneker Drive, N.E., and the narcotics trade. The woman who had been held by Mr. Knox told Sergeant John J. Hickey that she had purchased cocaine from Mr. Knox at 3120 Banneker Drive, N.E., "on numerous occasions" during the preceding year. Affidavit of Sergeant John J. Hickey, Jr. ("Second Hickey Affidavit"), ¶ 1. According to Sergeant Hickey, the woman had returned to 3120 Banneker Drive, N.E., to purchase additional cocaine, but Mr. Knox would not let her leave until she settled a debt she allegedly owed him. Id.; First Hickey Affidavit, at 1. Again according to the police, this woman, while held against her will, observed Mr. Knox and another man "cracking" cocaine and also saw a variety of drug paraphernalia stored inside what appeared to be a dishwasher. Affidavit in Support of an Application for a Search Warrant, ¶ 3.

On the basis of the narcotics seized from Mr. Knox at the time of his arrest, and the narcotics and related paraphernalia seen by the woman detained by Mr. Knox, the police obtained a warrant to search 3120 Banneker Drive, N.E., for narcotics and related items. Plaintiff's Motion for Summary Judgment, Exhibit II. When the warrant was executed, the police discovered three loaded weapons as well as two vials of "crack" concealed in a clothes dryer. First Hickey Affidavit, at 2.

In this suit, the United States of America, pursuant to 21 U.S.C. § 881(a)(6), seeks the forfeiture of 3120 Banneker Street N.E., Washington, D.C., the property owned and allegedly used by Calvin Knox to facilitate the illegal distribution of narcotics. The parties have submitted cross-motions for summary judgment. After considering these motions, the legal memoranda submitted by the parties, the arguments advanced in open court, and the underlying law, the Court must grant plaintiff's motion for summary judgment and must deny defendant's motion for summary judgment.

PLAINTIFF HAS SHOWN PROBABLE CAUSE THAT THE DEFENDANT PROPERTY WAS USED TO FACILITATE A VIOLATION OF THE NARCOTICS LAWS.

Plaintiff seeks to recover the defendant property under 21 U.S.C. § 881(a)(7), which is a civil forfeiture provision. That statute provides, in pertinent part, that:

(a) The following shall be subject to forfeiture to the United States and no property right shall exist in it:

(7) All 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 this title punishable by more than one year's imprisonment, except that no property shall be forfeited under this paragraph, to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed without the knowledge or consent of that owner.

The summary judgment inquiry under this statute is not precisely akin to the law of summary judgment that federal courts employ daily. While a court must

... evaluate every summary judgment by viewing the evidence and the inferences therefrom in the light most favorable to the party opposing the motion, ... the `summary judgment procedures under Rule 56, Fed.R.Civ.P., must necessarily be construed in the light of the statutory law of forfeitures, and particularly the procedural requirements set forth therein. Those procedures themselves are quite summary, especially when compared to normal civil actions.'

United States v. One 56-Foot Motor Yacht Named the Tahuna, 702 F.2d 1276, 1281 (9th Cir.1983) (quoting United States of America v. One 1975 Mercedes 280S, 590 F.2d 196, 199 (6th Cir.1978) (per curiam)).

Forfeitures under § 881 are governed by the provisions relating to the seizure and forfeiture of property for violations of the customs laws. 21 U.S.C. § 881(d). The procedural requirements under the customs laws, and therefore in civil forfeiture actions, are clear.

The government has the initial burden, and it "need only demonstrate probable cause that the property was involved as alleged in violations of the narcotics statutes." United States v. Brock, 747 F.2d 761, 762 (D.C.Cir.1984) (per curiam). "Probable cause" is more commonly used in the search and seizure context, but its meaning here is no different: the government must supply evidence that, under the totality of the circumstances, establishes reasonable grounds for believing that the property facilitated the sale of drugs. See, e.g., United States v. One 1974 Porsche 911-S, 682 F.2d 283, 285 (1st Cir.1982); see generally, e.g., Illinois v. Gates, 462 U.S. 213, 230-31, 103 S.Ct. 2317, 2328-29, 76 L.Ed.2d 527 (1983).

If the government can show probable cause, the burden shifts to the claimant, who must show by a preponderance of the evidence that the property was not involved in violations of the narcotics law or is otherwise not subject to forfeiture. United States v. Brock, 747 F.2d at 762; see also 19 U.S.C. § 1615 (forfeiture under customs laws). In contrast to the criminal forfeiture laws, where conviction is a prerequisite for forfeiture of the property, see 21 U.S.C. § 853, a property is subject to civil forfeiture even if its owner is acquitted of — or never called to defend against — criminal charges. See, e.g., United States v. One Clipper Bow Ketch Nisku, 548 F.2d 8, 10 n. 2. (1st Cir.1977); United States v. One 1972 Toyota Mark II, 505 F.2d 1162 (8th Cir.1974); United States v. One 1977 Pontiac Grand Prix, 483 F.Supp. 48 (N.D. Ill.1979).¹

In this case, the government has submitted affidavits that, in pertinent part, are not controverted. Those affidavits establish that the Metropolitan Police Department had been investigating narcotics transactions at 3120 Banneker Drive, N.E. Second Hickey Affidavit, ¶ 1. During the course of that investigation, two women informed the police that they had purchased cocaine from Calvin Knox at that address. Id. at ¶¶ 1, 2. When the police responded to a call for help at the defendant property, they arrested Calvin Knox and discovered a large quantity of cocaine, more than would be consistent with personal use, on his person. Id. at ¶¶ 5-7; First Hickey Affidavit, 1. They also discovered a variety of drug paraphernalia in the kitchen of the house. First Hickey Affidavit, at 2.

When the police executed a search warrant at the defendant property after Mr. Knox's arrest, they discovered additional evidence of narcotics use or distribution on the premises. They discovered two vials of crack concealed in a clothes dryer, as well as two loaded handguns and a loaded shotgun. Id.

On the basis of this undisputed evidence, the Court finds that there is probable cause to believe that 3120 Banneker Drive, N.E., Washington, D.C., was used "to facilitate the commission of a violation" of the narcotics laws. 21 U.S.C. § 881(a)(6).

DEFENDANT HAS NOT SHOWN THAT THE PROPERTY IS NOT SUBJECT TO FORFEITURE.

In light of the government's showing of probable cause, defendant has the burden of proving that the property was not used to facilitate a narcotics transaction or that, for some other reason, forfeiture is inappropriate. Defendant has advanced several arguments, but they are unavailing.

First, defendant maintains that the property is not subject to forfeiture unless the government shows, and the claimant does not refute, that the property was "substantially connected" to the illegal narcotics activity. While defendant admits that this alleged requirement is not articulated in the language of 21 U.S.C. § 881(a)(7), it argues that the statute's legislative history demands this reading. This argument cannot stand.

For one, the argument ignores the cardinal principal that a court may not consider legislative history where a statute is clear on its face. See, e.g., Board of Governors v. Dimension Financial Corp., 474 U.S. 361, 368, 106 S.Ct. 681, 686, 88 L.Ed.2d 691 (1986). This principle controls the issue here. The forfeiture statute unambiguously makes forfeitable "all real property ... which is used, or intended to be used, in any manner or part, to commit or facilitate" a violation of the narcotics laws. 21 U.S.C. § 881(a)(7) (emphasis added). Clearly, the property need not be "substantially connected" to the narcotics transaction; any use, in any manner, in connection with the drug trade can result in forfeiture.

But it is no secret that ambiguity may exist even when a statute seems strikingly clear on its face. See Young v. Community...