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.

• Date: 27 February 1990
• Citation: 898 F.2d 148
• Docket Number: 88-5195.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. ONE PARCEL OF REAL ESTATE LOCATED AT 7715 BETSY BRUCE LANE SUMMERFIELD, NORTH CAROLINA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

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 (See FI CTA4 Rule 36 regarding use of unpublished opinions)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 Property at 4492 South Livonia Rd., Livonia, N.Y., 889 F.2d 1258, 1267 (2d Cir.1989). The claimant must prove that the property was not unlawfully used or that he did not know about or consent to the illegal use. Property at 4492 South Livonia Rd., Livonia, 889 F.2d at 1267. If the claimant cannot produce any such evidence, summary judgment is properly granted to the government based upon its showing of probable cause. Id. Unlike criminal forfeiture cases, conviction for the underlying criminal activity is not a prerequisite for forfeiture of the property. In civil forfeiture cases, property is subject to forfeiture "even if its owner is acquitted of--or never called to defend against--criminal charges." United States v. Property Identified as 3120 Banneker Dr., N.E., Washington, D.C., 691 F.Supp. 497, 499 (D.D.C.1988); see also United States v. One Clipper Bow Ketch NISKU, 548 F.2d 8, 10 n. 2 (1st Cir.1977).

The evidence before the court in this case included records and testimony showing that James Modlin purchased property located at 7715 Betsy Bruce Lane, Guilford County, North Carolina, in 1983. Kathy Gallman, Modlin's ex-wife, lived with Modlin in the house on Betsy Bruce Lane from the summer of 1983 until December 1984. Modlin and his wife and a group of four or five friends regularly gathered at Modlin's residence to consume cocaine.

Kathy Gallman and several members of the group that met at the Modlins' to snort cocaine described the activities which occurred at the house. She testified that during the time she lived with Modlin she saw him take cocaine in plastic bags from a rolltop desk during social gatherings with guests. She saw him weigh the cocaine on triple beam scales and give it to guests. Sometimes Modlin put the cocaine in sandwich bags and took it to parties where cocaine was snorted.

Witness Dickie Beggs also snorted cocaine with Modlin at Modlin's residence. And Modlin sold Beggs cocaine during a trip to Myrtle Beach in Modlin's 1985 Cadillac Fleetwood. Beggs stated that he saw social...