U.S. v. 40 Acres of Real Property, More or Less

• Decision Date: 26 June 2009
• Docket Number: Civil Action No. 08-0117-WS-C.
• Citation: 629 F.Supp.2d 1264
• Parties: UNITED STATES of America, Plaintiff, v. 40 ACRES OF REAL PROPERTY, MORE OR LESS, etc., Defendant.
• Court: U.S. District Court — Southern District of Alabama

629 F.Supp.2d 1264

UNITED STATES of America, Plaintiff, v. 40 ACRES OF REAL PROPERTY, MORE OR LESS, etc., Defendant.

Civil Action No. 08-0117-WS-C.

United States District Court, S.D. Alabama, Southern Division.

June 26, 2009.

Alex F. Lankford, IV, U.S. Attorney's Office, Mobile, AL, for Plaintiff.

AMENDED ORDER

WILLIAM H. STEELE, District Judge.

It has been brought to the Court's attention that the undersigned's Order (doc. 52) entered on June 24, 2009, reflects ambiguity as to the Government's burden of proof in civil forfeiture cases. In particular, although the June 24 Order correctly cited authority for the "preponderance of the evidence" standard imposed by the Civil Asset Forfeiture Reform Act of 2000 ("CAFRA") in amending 18 U.S.C. § 983, and found that the preponderance test was satisfied, it also cited authority for an older "probable cause" standard which has been superseded by CAFRA. To avoid any confusion on this point, the undersigned vacates the June 24 Order and replaces it with this Amended Order, which makes appropriate revisions in Section IV to clarify the burden of proof borne by the Government herein. In all other respects, this Amended Order is identical to the June 24 Order.

This matter comes before the Court on plaintiff's Motion to Strike / Motion for Summary Judgment (doc. 41). The Motion has been briefed and is ripe for disposition.

I. Background.

A. The Underlying Criminal Investigation.

This civil forfeiture action has its roots in certain criminal proceedings in this District Court styled United States v. Norman Young et al., Criminal No. 06-0277-WS. In that prosecution, Norman Young, Tammy Young, and three co-defendants were charged with violations of the Controlled Substances Act, to-wit: conspiracy to possess with intent to distribute more than 1,000 kilograms of marijuana, in violation of 21 U.S.C. § 846; and possession with intent to distribute hundreds of kilograms of marijuana on multiple occasions, in violation of 21 U.S.C. § 841.

In early 2005, the Drug Enforcement Administration ("DEA") commenced a significant narcotics investigation targeting Norman Young. (Breaux Decl. (doc. 41-4), ¶ 2.) During the course of this investigation, the DEA developed information that multiple suppliers on the Texas/Mexico border were shipping large loads of marijuana to Norman Young at his ranch/residence located in rural northwestern Mobile County. (Id.) The ranch/residence (the "Property") consists of approximately 40 acres of real property, owned by Norman and Tammy Young, located along the western boundary of Mobile County, Alabama, with a mailing address of 340 Young Neck Road, Lucedale, Mississippi.¹ The DEA's investigation revealed that Norman Young took delivery of large marijuana shipments at the Property, which he stored on the premises. (Id., ¶¶ 2-3, 5, 8, 12.) A search warrant executed by the DEA at the Property on February 27, 2007, resulted in the seizure of marijuana, numerous firearms and ammunition, thousands of dollars in U.S. currency, and discarded vehicle gas tanks that appeared to have been utilized as containers for the marijuana shipments in transit. (Id., ¶¶ 8-12 & Exhs. 5, 6; Breedy Decl., ¶ 2; Villella Decl., ¶ 2.)

An arrest warrant was issued for Norman Young on February 26, 2007; however, he has never been apprehended and remains at large today. (Breaux Decl ¶¶ 4, 6 & Exh. 2.)² His four co-defendants, including Tammy Young (who is Norman Young's wife), all pleaded guilty to violations of the Controlled Substance Act based on their admitted involvement in the marijuana distribution organization. All of these co-defendants executed factual resumes implicating Norman Young and indicating that the Property played an integral role in their narcotics distribution activities, serving as a storehouse for hundreds of kilograms of marijuana and a location where drug deals were consummated. For example, co-defendant Billy Wayne Butler described a transaction at the Property in which Norman Young paid a supplier $50,000 in cash in partial payment for a trailer containing 700 pounds of marijuana, which trailer was stored at the Property. (Doc. 41-7, at 2.) Co-defendant Dustin Nathaniel Miller described underground marijuana storage areas on the Property, including a subterranean bunker where Norman Young had secreted large quantities of marijuana. (Doc. 41-9, at 2.) Co-defendant Timothy Cox also identified these marijuana storage areas on the Property. (Doc. 41-10, at 2.) Finally, Tammy Young admitted that the Property "was used to conduct and facilitate marijuana transactions to include the storage of marijuana and marijuana proceeds." (Doc. 41-16, at 6.)³

B. The Civil Forfeiture Action.

In its Complaint for Forfeiture In Rem, the Government seeks civil forfeiture of the Property pursuant to 21 U.S.C. § 881(a)(7), which provides that "[a]ll real property, including any right, title, and 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" the Controlled Substances Act punishable by more than one year's imprisonment "shall be subject to forfeiture to the United States." Id. Based on the above facts, the Government's position is that the Property was used, or intended to be used, to commit, or to facilitate the commission of, felony violations of the Act in the form of the marijuana distribution activities allegedly spearheaded by Norman Young, and that it is therefore subject to forfeiture under § 881(a)(7).

A critical inquiry in any civil forfeiture action is the identity of the subject property's owner(s). Probate records from Mobile County, Alabama, reflect that, on or about May 21, 2005, the Property was conveyed by Norman Levi Young, Clyde E. Young, Jr., William Thomas Young, and Morris E. Young to Norman Levi Young and Tammy K. Young. (Doc. 41-17.) The warranty deed purported to convey the grantors' entire fee simple interest in the Property to the grantees. Thus, these records indicate that Norman and Tammy Young hold title to, and are the sole owners of, the Property that is the in rem defendant herein. As explained below, neither of these record owners has opposed, or offered any viable basis for opposing, forfeiture in this case.

As a condition of her Plea Agreement (doc. 41-16) dated September 13, 2007, Tammy Young agreed to forfeit all of her right, title and interest in the Property (as well as certain currency and bank account proceeds not at issue herein) to the Government. A Preliminary Order of Forfeiture entered by the undersigned on January 31, 2008, provided that Tammy Young's interest in the Property was "condemned and forfeited to, and vested in, the United States of America for disposition according to law." (Crim. No. 06-277, doc. 151, at 2.)⁴ Despite actual notice of this forfeiture action, Tammy Young has expressly consented to, and has never opposed or contested, forfeiture of all of her right, title and interest in the Property to the Government herein.⁵

As for the Property's other owner of record, Norman Young remains a fugitive, and his present whereabouts are shrouded in mystery.⁶ The Government sought without success to serve him with notice of these proceedings via personal service at his last known address in June 2008. (Doc. 15.) The Government also posted a copy of the Complaint on the residence itself. (Waggoner Decl., ¶¶ 3-4.) With no other means available to serve him, the Government, with leave of court, published notice of this forfeiture action once a week for three consecutive weeks in the Press-Register, a newspaper of general circulation in this district, with the final such publication made on August 14, 2008. (Docs. 18, 21.) The Government further published notice of this action on an official Government Internet site (www.forfeiture.gov) for at least 30 consecutive days, beginning on July 4, 2008. (Doc. 22.) Notwithstanding his constructive notice of these proceedings, Norman Young has not appeared in this action to contest forfeiture or to make a claim to the Property.⁷

In short, neither of the named, deeded owners of the Property have made a claim or have otherwise opposed forfeiture of same in these proceedings pursuant to 21 U.S.C. § 881(a)(7). However, two other groups of claimants have stepped forward to oppose forfeiture and claim a protectable interest in the Property. Those two sets of claims are the focus of the Government's pending Motion to Strike/Motion for Summary Judgment.

II. The Young Claimants.

A. Facts Relating to the Claim.⁸

On August 25, 2008, claimants Clyde Young, Jr., William Thomas Young and Morris E. Young (collectively, the "Young Claimants") filed a document styled "Verified Claim in Opposition to Civil Judicial Forfeiture" (doc. 19) in this action. The Young Claimants are three brothers of Norman Young. (W. Young Dep., at 25, 40; C. Young Dep., at 11, 23.)

The factual underpinnings of the Young Claimants' claim are these: Back in 1998, the Young brothers' grandmother, Rosalie Young, executed a warranty deed conveying the Property to all four brothers (Norman, Clyde, William and Morris Young) as joint tenants in fee simple. (Doc. 19, ¶ 2 & Attachment 1; W. Young Dep., at 25.) From 1998 through early 2005, Norman Young and the Young Claimants jointly owned the Property. Norman Young resided on the Property for some or all of that time period. (C. Young Dep., at 26-27.) In May 2005, all four Young brothers collectively conveyed their entire fee-simple interest in the Property to Norman and Tammy Young via warranty deed. (Doc. 19, ¶ 3 & Attachment 2.) Norman and Tammy Young paid neither money nor other valuable consideration in exchange for the Property. (C. Young Dep., at 38, 45.) The warranty deed did not delineate temporal restrictions or other conditions on the conveyance, nor was there any written agreement...