897 F.2d 97 (2nd Cir. 1990), 706, United States v. One Parcel of Property Located at 15 Black Ledge Drive, Marlborough, Conn.

Docket Nº:706, Docket 89-6193.
Citation:897 F.2d 97
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. ONE PARCEL OF PROPERTY LOCATED AT 15 BLACK LEDGE DRIVE, MARLBOROUGH, CONNECTICUT, With all Appurtenances and Attachments Thereon, Defendant. Appeal of Katherine HESLIN, a/k/a Katherine Heslin McBride, Claimant.
Case Date:February 27, 1990
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 97

897 F.2d 97 (2nd Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,

v.

ONE PARCEL OF PROPERTY LOCATED AT 15 BLACK LEDGE DRIVE,

MARLBOROUGH, CONNECTICUT, With all Appurtenances

and Attachments Thereon, Defendant.

Appeal of Katherine HESLIN, a/k/a Katherine Heslin McBride, Claimant.

No. 706, Docket 89-6193.

United States Court of Appeals, Second Circuit

February 27, 1990

Argued Jan. 19, 1990.

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Jon L. Schoenhorn, Hartford, Conn. (Hurvitz, Hershinson & Schoenhorn, of counsel), for claimant-appellant.

Leslie C. Ohta, New Haven, Conn., Asst. U.S. Atty., D. Conn. (Stanley A. Twardy, Jr., U.S. Atty., D. Conn., of counsel), for plaintiff-appellee.

Before LUMBARD, FEINBERG and PRATT, Circuit Judges.

FEINBERG, Circuit Judge:

Claimant-appellant Katherine Heslin McBride appeals from an order of the United States District Court for the District of Connecticut (Alan H. Nevas, J.), forfeiting her interest as owner of record in the defendant property. That property included the single-family home owned by appellant, occupant of the house with her husband, John McBride, and their small child. Appellant argues that the district court erred in denying her motion for an evidentiary hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and improperly granted summary judgment in favor of plaintiff-appellee United States despite the existence of a genuine issue of material fact regarding appellant's knowledge of drug trafficking from the defendant property.

For reasons given more fully below, we affirm the judgment of the district court.

Background

In January 1988, the United States commenced this civil in rem forfeiture proceeding by filing a verified complaint against the defendant property at 15 Black Ledge Drive, Marlborough, Connecticut, alleging that the property was used, or was intended to be used, for the facilitation of drug offenses in violation of 21 U.S.C. Sec. 881(a)(7). To support its allegation, the government relied on the June 1987 seizure from the premises, pursuant to a state search warrant, of "controlled substances, drug paraphernalia, and materials used in the packaging and distribution of controlled substances."

Early in February 1988, pursuant to an in rem warrant for arrest of property issued by the district court, the property was seized by the United States Marshal for the District of Connecticut. Shortly thereafter, appellant filed her notice of contest and claim of ownership and her answer. In the latter, appellant alleged as her second defense that the state search warrant was issued without probable cause and as her fourth defense that the original warrant affidavit contained false statements or statements made in reckless disregard for the truth, in violation of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). As her sixth defense, appellant denied any knowledge of any alleged drug trafficking activity and claimed that she was thus entitled to the statutory exemption for innocent ownership. See 21 U.S.C. Sec. 881(a)(7). In August 1988, appellant filed a motion to supress all evidence

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obtained at the defendant premises and requested an evidentiary hearing pursuant to Franks. In February 1989, after oral argument, the district court denied the motion.

A few months earlier, in November 1988, the government had moved for summary judgment. In support of its motion, the government relied on, among other things, the affidavit of Detective John MaGuire, co-affiant on the application for the state search warrant and participant in the execution of the state search warrant in June 1987. Appellant opposed the motion for summary judgment with her own affidavit, in which she stated that she was not present at the defendant premises at the time the search and seizure warrant was executed and certain drugs and drug paraphernalia seized; that she had "no knowledge, actual or constructive, that my husband ever possessed or stored any narcotics or drug related items within my home"; and that she had "no knowledge whatsoever of my husband ever conducting any narcotics trafficking from my home." She further stated that "[p]rior to the execution of the warrant, my husband never consumed, displayed, or spoke of narcotics or drug related materials in my presence."

In April 1989, the district court granted summary judgment in favor of the government. The district court found that the record established the following undisputed facts: Beginning in early 1987, John McBride became the target of a Statewide Narcotics Task Force investigation into large-scale narcotics trafficking activity in central Connecticut. Information on John McBride's drug-related activities developed to the point where there was sufficient probable cause to obtain a search and seizure warrant for his residence. On June 2, 1987, state and local police officers executed the warrant at that location, interrupting John McBride while he was openly processing narcotics in the living room. Cocaine, drug paraphernalia, cutting agents, a loaded revolver, $6,000 in cash and a $6,000 cashier's check payable to John McBride were discovered in "the family room." Another loaded revolver was also discovered in the kitchen, on top of a hutch located near the main entrance of the residence. The search uncovered in the master bedroom, which was shared by John and Katherine McBride, vials containing cocaine, and in a bedroom closet, a pair of Levi's containing $1,084 and a box containing a photograph of John McBride standing next to a triple beam scale, which appeared to have been taken at the residence.

Approximately 40 minutes after the search began, Katherine McBride arrived home with her child. She was observed to be calm when informed of what was taking place. Detective MaGuire declared that her demeanor indicated that "she was fully aware of the criminal activities which had occurred at her residence" and that "[s]he did not express disbelief, outrage, fear, or sorrow, responses often exhibited by innocent family members when evidence of drug trafficking is found at their residence." A confidential informant had informed Detective MaGuire that John McBride had amassed large sums of money through his narcotics trafficking activities, that Katherine McBride knew of her husband's drug activities from the residence and that she herself was a user of cocaine.

In the course of a deposition in March 1988, Katherine McBride invoked her Fifth Amendment privilege against self-incrimination in response to virtually every deposition question regarding drug activities alleged to have taken place in her home. She declined to answer, for example, whether or not she knew her husband was involved in drug trafficking, whether she consented to or benefited from his illegal activities, whether she had ever seen drug processing equipment in her house, whether drug sales had ever taken place in her presence and where the money came from to pay for the house, title to which is in her name and is unencumbered.

On this record, the district court held that appellant could not meet her burden of demonstrating a genuine issue for trial under Fed.R.Civ.P. 56(e) on the basis of an opposing affidavit containing "unqualified, conclusory statements" that she had no knowledge of drug trafficking taking place from her home. Accordingly, on June 28,

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1989, the district court signed a decree of forfeiture. This appeal followed.

Discussion

I. Franks Hearing

Appellant argues that the district court erred in denying her request for an evidentiary hearing pursuant to Franks. The basis of the request was appellant's claim that false statements were intentionally or recklessly made in the affidavit supporting the state search warrant, thus requiring under Franks suppression of any testimony or evidence relating to the June 1987 search and seizure of the McBride residence. In its ruling, the district court assumed, without deciding, that Franks applies to a civil forfeiture proceeding as part of a claimant's Fourth Amendment rights.

Franks provides that if a criminal defendant makes a substantial preliminary showing that a false statement was knowingly, intentionally or recklessly made in order to obtain a search warrant and if the false statement was necessary to establish probable cause, the defendant...

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