906 F.2d 110 (4th Cir. 1990), 88-5195, United States v. One Parcel of Real Estate Located at 7715 Betsy Bruce Lane, Summerfield, N.C.

Docket Nº:88-5195.
Citation:906 F.2d 110
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 110

906 F.2d 110 (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

Argued Nov. 3, 1989.

Page 111

Richard Lee Robertson, Asst. U.S. Atty. (Robert H. Edmunds, Jr., U.S. Atty., Greensboro, N.C., on brief), for plaintiff-appellant.

Anthony Wayne Harrison, Sr., Greensboro, N.C., for defendant-appellee.

Before ERVIN, Chief Judge, BUTZNER, Senior Circuit Judge, and 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. Secs. 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. Sec. 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...

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