US v. LAND & BLDGS. LOCATED AT 40 MOON HILL RD.

• Decision Date: 22 December 1988
• Docket Number: Civ. A. No. 87-0110-XX.
• Citation: 721 F. Supp. 1
• Parties: UNITED STATES of America, Plaintiff, v. PARCEL OF LAND AND BUILDINGS LOCATED THEREON AT 40 MOON HILL ROAD, NORTHBRIDGE, MASSACHUSETTS, Defendants.
• Court: U.S. District Court — District of Massachusetts

721 F. Supp. 1

UNITED STATES of America, Plaintiff, v. PARCEL OF LAND AND BUILDINGS LOCATED THEREON AT 40 MOON HILL ROAD, NORTHBRIDGE, MASSACHUSETTS, Defendants.

Civ. A. No. 87-0110-XX.

United States District Court, D. Massachusetts.

December 22, 1988.

Jeffrey S. Robbins, Asst. U.S. Atty., Boston, Mass., for plaintiff.

Alan R. Finer, Vineyard Haven, Mass., for defendants.

MEMORANDUM

KEETON, District Judge.

This is an action pursuant to 21 U.S.C. § 881(a)(7) for forfeiture of a plot of land allegedly used to cultivate, manufacture and distribute large amounts of marijuana. The owners of the property, Robert and Linda Markt, pled guilty to and were convicted in Worcester County Superior Court of criminal possession and intent to manufacture or distribute marijuana on the basis of marijuana cultivated on the defendant property. The government has moved for summary judgment on the ground that, by reason of the criminal conviction, defendant owners, the Markts, are collaterally estopped from denying that they possessed marijuana with intent to manufacture or distribute and that the land and building that are the subject of the forfeiture action were used in the cultivation and possession of that marijuana. The government also argues that it is entitled to summary judgment because its submissions establish that no genuine issue of material facts exists as to whether the property at 40 Moon Hill Road was used for the illegal cultivation of marijuana.

The defendant owners, the Markts, respond in opposition that collateral estoppel effect should not be afforded to the prior criminal proceeding and that the marijuana and other evidence discovered in a search of defendant property and used as evidence in the criminal proceeding should not be considered in the present proceeding because it was discovered in an illegal search. The Markts therefore have moved to stay hearing on the summary judgment motion pending a hearing on their motion to suppress the evidence from the search. The Markts have also moved to strike the affidavit of Agent Joseph Coons. Because the court does not rely on the affidavit of Agent Coons in reaching its decision, it is unnecessary for the court to address that motion.

On October 13, 1988, this court noted that the Markts have failed to offer any evidence of the illegality of the search that would justify granting a hearing on the motion to suppress and a stay of consideration of the government's motion for summary judgment. The court, however, allowed the Markts 30 days to submit such evidence to the court. On November 17, 1988, the Markts filed with the court a memorandum and two affidavits setting forth the alleged basis for the illegality of the search and a stay of the government's motion for summary judgment.

I.

The government moves for summary judgment on the ground that it has established probable cause sufficient to satisfy all elements of the forfeiture provisions of 21 U.S.C. § 881, and therefore that it is entitled to summary judgment absent proof to the contrary by the defendants. 21 U.S.C. § 881(a)(7) provides that the following property shall be subject to forfeiture to the United States:

"All real property including any right, title and interest in the whole of any lot or tract of land and any appurtenances or improvements, 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 ...

The government is not required to prove that the property was used for such illegal purpose, but only establish that there is probable cause to believe it was or is being used for such purpose. United States v. 1974 Porsche 911-S Vehicle, 682 F.2d 283, 285 (1st Cir.1982). Once probable cause has been established, the burden of proof shifts to the defendant to show by a preponderance of the evidence that the property is not subject to forfeiture. Id.

The government has established probable cause to believe that the property at 40 Moon Hill Road was used in the illegal cultivation and distribution of marijuana. First, the court concludes that the Markts are collaterally estopped from relitigating issues litigated and disposed of in their criminal case, including the possession with intent to cultivate and distribute marijuana. Although the First Circuit has not addressed this issue, see United States v. 1974 Porsche 911-S Vehicle, 682 F.2d 283, 286 n. 2 (1st Cir.1982) (noting that the issue of whether a conviction on a guilty plea could be submitted as evidence of probable cause raises an interesting question which the court in that case need not reach), other courts that have addressed the issue have concluded that it is appropriate to afford collateral estoppel effect in forfeiture proceedings to issues necessarily determined in the criminal case. See United States v. "Monkey", 725 F.2d 1007, 1010 (5th Cir.1984); United States v. $31,697.59 Cash, 665 F.2d 903, 906 (9th Cir.1982). Furthermore, because the court concludes that the Markts' guilty plea and failure to appeal that plea necessarily establish that they possessed marijuana with the intent to cultivate and distribute it, the court concludes that affording collateral estoppel effect is appropriate. The only additional issue to be established, therefore, is that this illegal use and distribution took place at least in part at 40 Moon Hill Road. The September 2, 1986 report and affidavit of Sgt. Melia (Exhibit to Complaint D and E) stating that Sgt. Melia found 90 marijuana plants in addition to marijuana processing equipment on the Markt's property at 40 Moon Hill Road is more than sufficient to establish probable cause to satisfy the government's burden of production on the issue of illegal use of that property. In addition, the court concludes that even without affording collateral estoppel effect to the criminal proceeding, Sgt. Melia's affidavits establish probable cause to believe that the property at 40 Moon Hill Road was used to illegally cultivate marijuana, and thus independently satisfy the government's burden of proof.

The Markts argue, however, that the search of the Markt's home and fields was without probable cause and therefore that the evidence discovered in that search cannot be considered in this case. See Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965); United States v. One 1975 Pontiac Lemans, Etc., 621 F.2d 444 (1st Cir.1980). The Markts argue that Sgt. Melia made contradictory statements in the probable cause hearing on January 6, 1987 that call into question the veracity of his September warrant affidavit. In the affidavits submitted on November 17, 1988, the Markts state that Sgt. Melia's testimony at the probable cause hearing on January 6, 1987, was inconsistent in that although he testified that he had been told the name of a person, "B," mentioned in his September 1, 1986 warrant affidavit as someone his informant, "A," said had purchased marijuana from the Markts, he also testified that he did not know the name of that person "B." The Markts argue that a contradiction is evident from these two statements that is evidence of material misrepresentations in the warrant affidavit issued in September 1986. It is on the basis of this contradiction that they ask for a hearing to consider the validity of the September search warrant affidavit, and therefore, also the admissibility in this forfeiture case of the evidence discovered in that search. The Markts suggest that this "contradiction" in the testimony of Melia on January 6, 1987 supports their theory that...