898 F.2d 148 (4th Cir. 1990), 88-5195, U.S. v. One Parcel of Real Estate Located at 7715 Betsy Bruce Lane, Summerfield, N.C.

Docket Nº:88-5195.
Citation:898 F.2d 148
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. ONE PARCEL OF REAL ESTATE LOCATED AT 7715 BETSY BRUCE LANE SUMMERFIELD, NORTH CAROLINA, Defendant-Appellee.
Case Date:February 27, 1990
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 148

898 F.2d 148 (4th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellant,

v.

ONE PARCEL OF REAL ESTATE LOCATED AT 7715 BETSY BRUCE LANE SUMMERFIELD, NORTH CAROLINA, Defendant-Appellee.

No. 88-5195.

United States Court of Appeals, Fourth Circuit

February 27, 1990

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA4 Rule 36 regarding use of unpublished opinions)

Argued: Nov. 3, 1989.

Opinion Published in Full 906 F.2d 110.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Richard C. Erwin, Chief District Judge. (CR-86-577-G)

Richard Lee Robertson, Assistant United States Attorney (Robert H. Edmunds, Jr., United States Attorney, on brief), for appellant.

Anthony Wayne Harrison, Sr., for appellee.

M.D.N.C.

REVERSED AND REMANDED.

Before ERVIN, Chief Judge, BUTZNER, Senior Circuit Judge, and JOSEPH H. YOUNG, Senior United States District Judge for the District of Maryland, sitting by designation.

PER CURIAM:

This is an appeal from a civil forfeiture proceeding brought by the government pursuant to 21 U.S.C.A. §§ 881(a)(4), (a)(6), and (a)(7) (West 1987) against James Ray Modlin. The government alleged that Modlin used his house, car, and $3,300 in currency to facilitate the possession of cocaine with the intent to distribute. The lower court held that the car was properly forfeited to the United States but that the government failed to establish probable cause that the property and money facilitated the possession of more than one ounce of cocaine. The government brings this appeal to challenge the court's holding with respect to the real property involved in this case. We reverse the lower court holding with respect to the house because we find that the government showed probable cause that Modlin used the property to facilitate the possession of cocaine with the intent to distribute.

I.

The civil forfeiture statute provides that certain items which are used or intended to be used to facilitate a violation of Title 21 are subject to forfeiture. Real property is subject to forfeiture under the statute if the underlying criminal activity is punishable by more than one year's imprisonment. 21 U.S.C.A. § 881(a)(7).

In a civil forfeiture proceeding the government must show probable cause that the property is subject to forfeiture. Once the government has made this showing, the burden shifts to the claimant to prove by a preponderance of the evidence "that the factual predicates for forfeiture have not been met." United States v. Banco Cafetero Panama, 797 F.2d 1154, 1160 (2d Cir.1986); United States v. Premises and Real...

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