U.S. v. One Single Family Residence With Out Buildings Located at 15621 S.W. 209th Ave., Miami, Fla.

• Decision Date: 01 March 1990
• Docket Number: No. 88-5861,88-5861
• Citation: 894 F.2d 1511
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. ONE SINGLE FAMILY RESIDENCE WITH OUT BUILDINGS LOCATED AT 15621 S.W. 209 th AVENUE, MIAMI, FLORIDA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1511

894 F.2d 1511

58 USLW 2528

UNITED STATES of America, Plaintiff-Appellant, v. ONE SINGLE FAMILY RESIDENCE WITH OUT BUILDINGS LOCATED AT 15621 S.W. 209 th AVENUE, MIAMI, FLORIDA Defendant-Appellee.

No. 88-5861.

United States Court of Appeals Eleventh Circuit.

March 1, 1990.

Guy W. Harrison, Lynne W. Lamprecht, Linda Collins Hertz, Asst. U.S. Attys., Jeanne M. Mullenhoff, Miami, Fla., for plaintiff-appellant.

Joaquin Perez, Charles White, Miami, Fla., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before FAY and EDMONDSON, Circuit Judges and YOUNG ^*, Senior District Judge.

FAY, Circuit Judge:

This case presents a question of first impression in our circuit: when the United States seeks forfeiture under 21 U.S.C. section 881(a)(7) of real property used by its owner to facilitate a controlled substance transaction, and the property is held by the entireties with an innocent spouse whose interest Congress has expressly exempted from forfeiture, what becomes forfeitable under the statute? Because we see no way for the government to obtain a meaningful share in an entireties property without forfeiting some part of the innocent spouse's interest, as long as the spouses remain married to each other and do nothing to terminate the entireties estate, we hold that none of the property can be forfeited to the United States. We therefore AFFIRM the district court's decision denying the government's suit for forfeiture.

FACTS

Carlomilton and Ibel Aguilera own property in Miami, Florida, as tenants by the entireties. The Aguileras bought the land in 1981 and with the help of friends and family members built a house for themselves and their daughter, into which house they moved in 1985. On February 20 and 21, 1986, Carlomilton Aguilera negotiated and conducted a cocaine sale to undercover DEA operatives on this property. He was arrested immediately and later convicted for trafficking in cocaine.

In June 1986, the United States filed a complaint for forfeiture in rem of the Aguilera property pursuant to 21 U.S.C. section 881(a)(7) which "requires the forfeiture of any real property and improvements thereon when there is probable cause to believe that the property was used to facilitate a violation of 21 U.S.C. Section 802, et seq., punishable by more than one year's imprisonment." United States v. One Single Family Residence, 699 F.Supp. 1531, 1534 (S.D.Fla.1988). Ibel Aguilera entered the forfeiture proceeding as a After reviewing the evidence introduced at trial and the record of the case as well as evaluating the credibility, demeanor, and interests of the witnesses who testified, the district court found Ibel Aguilera to have no knowledge or suspicion of her husband's drug trafficking or his use of their home to facilitate deals. The court further found that she had made a legally sufficient claim of innocent ownership that entitled her to a return of her interest in the property. In determining what interest would be returned to Mrs. Aguilera, the court first decided that it did not need to create a rule of federal common law and that state property law would decide the issue. Because under Florida law, an entireties estate cannot be forfeited due to the independent criminal conduct of one spouse when the other spouse has not participated in and has no knowledge of the crime, the district court held that the property was not subject to forfeiture. The government in its appeal charges the district court with error in ruling that the United States could not acquire one-half of an entireties property when one spouse has acted in a way that subjects the property to forfeiture and in not adopting a uniform rule of decision superseding state property law that would permit the government to obtain one-half of the entireties estate by forfeiture.

claimant to protect her interest in the property as the second clause of 881(a)(7) expressly excepts the interest of an innocent owner from forfeiture.

STANDARD OF REVIEW

The government in its brief, while not acceding to the district court's findings of fact, recognized the "difficulty inherent in attempting to reverse the district court on findings of fact" and directed the body of its argument toward the district court's conclusions of law. Appellant's Brief at 5-6 n. 1. The government chose wisely, as we reverse factual findings only upon discovery of clear error by the district court, and on review of this record, we do not have "the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948); Fed.R.Civ.P. 52(a). We thus treat this case as one involving an innocent owner, as the district court found, and independently review that court's conclusions of law. See Pullman-Standard v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982).

DISCUSSION

The crux of this case is the forfeiture statute itself and how it ought to be interpreted. Section 881(a)(7) of Title 21 provides:

The following shall be subject to forfeiture to the United States and no property right shall exist in them:

All real property, including any right, title, and interest (including any leasehold 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, 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 or omitted without the knowledge or consent of that owner.

21 U.S.C.A. Sec. 881(a)(7) (West Supp.1989).

The language of section 881(a)(7) reflects two interrelated aims of Congress: to punish criminals while ensuring that innocent persons are not penalized for their unwitting association with wrongdoers. Section 881(a)(7) was a very small part of Title III of the Comprehensive Crime Control Act of 1984, the goal of which title was

to enhance the use of forfeiture ... as a law enforcement tool in combatting two of the most serious crime problems facing the country: racketeering and drug trafficking.

....

... This bill is intended to eliminate the [federal] statutory limitations and ambiguities that have frustrated active pursuit of forfeiture by Federal law enforcement agencies.

S.Rep. No. 225, 98th Cong., 2d Sess. 191, 192, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3374, 3375. But, even as Congress escalated its offense in the ongoing "war against drugs" by expanding the scope of property subject to civil forfeiture, it coupled with the forfeiture a proviso, taken verbatim from section 881(a)(6), ¹ protecting innocent owners. Explaining the aim of the innocent-owner exception, Congress stated:

[I]t should be pointed out that no property would be forfeited under the Senate amendment to the extent of the interest of any innocent owner of such property. The term "owner" should be broadly interpreted to include any person with a recognizable legal or equitable interest in the property seized. Specifically the property would not be subject to forfeiture unless the owner of such property knew or consented to the fact that [the property was used for or traceable to illegal drug activities].

Joint Explanatory Statement of Titles I & II, 124 Cong.Rec. S17647, reprinted in 1978 U.S.Code Cong. & Admin.News 9518, 9522.

Application of the statute appears simple. Upon Carlomilton Aguilera's transaction of a cocaine deal at his home, the property became "subject to forfeiture to the United States" except for whatever interest Ibel Aguilera, the innocent owner, had in the property. The difficulty lies in defining Ibel Aguilera's interest in the property which the government may not take.

Florida law provides a clear answer which supports the conclusion of the trial court. Ibel Aguilera holds the property at issue as a tenant by the entireties with her husband. To hold property by the entireties, Florida common law requires five "unities" to be present: marriage--the joint owners must be married to each other; title--the owners must both have title to the property; time--they both must have received title from the same conveyance; interest--they must have an equal interest in the whole of the property; and control or possession--they both must have the right to use the entire property. Andrews v. Andrews, 155 Fla. 654, 21 So.2d 205, 206 (1945); Bechtel v. Estate of Bechtel, 330 So.2d 217, 219 (Fla.Dist.Ct.App.1976).

Should one of these unities never have existed or be destroyed, there is no entireties estate. ² Andrews, 21 So.2d at 206; Bechtel, 330 So.2d at 219. As long as all the unities remain intact, however, each spouse's interest comprises the whole or entirety of the property and not a divisible part; the estate is inseverable. Quick v. Leatherman, 96 So.2d 136, 138 (Fla.1957); Andrews, 21 So.2d at 206; Strauss v. Strauss, 148 Fla. 23, 3 So.2d 727, 728 (1941). "[N]either spouse can sell, forfeit or encumber any part of the estate without the consent of the other, nor can one spouse alone lease it or contract for its disposition." Parrish v. Swearington, 379 So.2d 185, 186 (Fla.Dist.Ct.App.1980) (per curiam). Creditors cannot levy on entireties property to satisfy the debt of an individual spouse. Meyer v. Faust, 83 So.2d 847, 848 (Fla.1955). The state cannot deem entireties property forfeit because of the unlawful conduct of one spouse acting alone. Smith v. Hindery, 454 So.2d 663, 664 (Fla.Dist.Ct.App.1984), overruled on other grounds in In re Forfeiture of 1978 Chevrolet Van, 493 So.2d 433 (Fla.1986).

The easy answer to the 881(a)(7) riddle thus would seem to be that Ibel Aguilera's interest in the estate was that of a tenant by the entireties,...