U.S. v. Certain Real Property and Premises, Known as 890 Noyac Rd., Noyac, N.Y., 900

• Citation: 945 F.2d 1252
• Decision Date: 03 October 1991
• Docket Number: No. 900,D,900
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. CERTAIN REAL PROPERTY AND PREMISES, KNOWN AS 890 NOYAC ROAD, NOYAC, NEW YORK, Defendants, and Josephine A. Counihan, Claimant-Appellant. ocket 90-6231.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 1252

945 F.2d 1252

UNITED STATES of America, Plaintiff-Appellee, v. CERTAIN REAL PROPERTY AND PREMISES, KNOWN AS 890 NOYAC ROAD NOYAC, NEW YORK, Defendants and Josephine A. Counihan, Claimant-Appellant.

No. 900, Docket 90-6231.

United States Court of Appeals Second Circuit.

Argued Jan. 24, 1991.

Decided Oct. 3, 1991.

Richard B. Lind, New York City, for claimant-appellant.

Rosanne M. Harvey, Asst. U.S. Atty. E.D.N.Y., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty. E.D.N.Y., Robert L. Begleiter, Charles S. Kleinberg, Deborah B. Zwany, Asst. U.S. Attys. E.D.N.Y., of counsel), for plaintiff-appellee.

Before VAN GRAAFEILAND, MINER and MAHONEY, Circuit Judges.

MAHONEY, Circuit Judge:

Claimant-appellant Josephine A. Counihan appeals from a judgment of the United States District Court for the Eastern District of New York, Leonard D. Wexler, Judge, entered on July 2, 1990, following a jury trial, that forfeited her interest in defendant real property pursuant to a provision of the Comprehensive Crime Control Act of 1984, 21 U.S.C. § 881(a)(7) (1988). Counihan contends, inter alia, that the government was improperly allowed to amend its complaint to conform to the proof at trial.

We agree, and accordingly reverse and remand.

Background

A. The Facts.

Josephine Counihan owned a one-half interest in a property at 890 Noyac Road in Noyac, New York (the "Property"). ¹ She acquired her interest in the Property from her son, Thomas Counihan, in 1982. Josephine Counihan rented the property to finance its upkeep. In July 1988, the persons residing at the Property were Thomas Counihan, Joan Maddock Carbaugh, Paul Garland, Salvatore Mata, Mata's girlfriend Susan Brown Restrepo, and Restrepo's two children. On July 22, 1988, a police agent purchased a quantity of cocaine at the Property. Later that day, the Town of Southampton police executed a search warrant on the Property, arrested Thomas Counihan, and recovered drugs, drug paraphernalia, and cash. Thomas Counihan was subsequently released from custody when authorities failed to file a timely indictment, and he became a fugitive. Carbaugh and Garland moved out of the Property in August 1988, and Mata and Restrepo moved out in January 1989.

Josephine Counihan testified that soon after the raid, she was contacted by Carbaugh, who told Counihan that the police had failed to find some drugs that had been hidden at the Property, presumably by Thomas Counihan, and asked Counihan if she should bring the drugs to Counihan. Counihan testified that she emphatically opposed this suggestion, and told Carbaugh to "go off and do whatever you do with anything like that." Several months later, Carbaugh agreed to cooperate with the police. Wearing a body wire that permitted the police to tape the discussion, Carbaugh visited Counihan's home on February 2, 1989.

The government asserts that the purpose of the visit was to "engage Mrs. Counihan in a conversation concerning the disposition of a certain quantity of cocaine that the Southampton Town Police failed to locate during [the July 22 raid]." The conversation included the following exchanges:

Carbaugh: I don't know [Garland] didn't tell me that. He says he's got a job when he gets out. And so I asked him--I asked him if he's gonna' pay you back any of the money that he owes you for the coke.

Counihan: Yeah.

Carbaugh: I says, "Are you gonna' pay her--Mrs. Counihan back? ["] He goes, "Well uh, I don't really know how much I owe her."

Counihan: Did you tell him pay me back--oh for the coke. Sure.

Carbaugh: Yeah.

Counihan: Well he knows how much he got for it.

....

Carbaugh: I know. Well that's why I--I said to [Garland] I wasn't payin' any of his debts. I says, you know that's your, debt, it's not mine. I says that was ju--between you, Tommy, and Mrs. Counihan or whatever. I says, "It's not my debt. I'm not payin' it."

Counihan: Well, you were the one that called up said, "Shall we do this with it?" Right, okay? So he did ( [unintelligible]--he was supposed to go out and sell it or your [sic] were supposed to, I don't know what.

....

Counihan: Joan, they knew what they had there, and nobody did anything.

Carbaugh: Well he says there was a halfa' ounce when he weighed it up.

Counihan: And what did Tommy say?

Carbaugh: Tommy said there was about--what, two ounces, or an ounce and a half.

Counihan: No, no way.

....

Counihan: I shou--I shouldnt've been so darn ah believing, or nice to, nice.

Carbaugh: Well, [Garland] seems to think he doesn't owe you much for the coke. I don't know.

Counihan: No of course not, no. I mean you take a little--ah take a couple of snorts yourself, why would he wanna' pay for it?

Forrest Counihan (husband of Josephine Counihan): He probably thinks you owe him!

Carbaugh: (laughs)

B. Proceedings Below.

1. The complaint and answer.

One week after the Carbaugh conversation, on February 9, 1989, the government filed a complaint in rem seeking forfeiture of the property pursuant to 21 U.S.C. § 881(a)(7) (1988). The complaint predicated forfeiture on the drug sale and raid at the property on July 22, 1988. Counihan's answer posited an affirmative "innocent owner" defense, asserting that she "was without knowledge of the alleged drug trafficking of Thomas Counihan" at the Property.

2. Proposed pretrial orders.

In its proposed pretrial order, the government framed the issues for trial as follows:

(a) Did claimant Josephine Counihan have knowledge of drug activity at the defendant premises located at 890 Noyac Road, Noyac, New York; and

(b) Did she constructively "consent" to the illegal drug activity by failing to take all reasonable measures to prevent the proscribed use of her property.

Counihan's pretrial order asserted that she could meet her burden of proving innocent owner status by establishing either that:

(a) She did not have actual knowledge of drug activity at the defendant premises; or

(b) She did not actually consent to the illegal drug acitivity [sic].

The district court rejected Counihan's position, concluding that a conjunctive construction of the language of section 881(a)(7) was appropriate. In a pretrial opinion addressing the issue, the court stated:

21 U.S.C. § 881(a)(7), which reads "[no property shall be forfeited under this chapter,] to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner," shall be construed to read without knowledge and without consent.

United States v. Certain Real Property and Premises Known as 890 Noyac Rd., Noyac, New York, 739 F.Supp. 111, 115-16 (E.D.N.Y.1990).

3. Counihan's motion in limine.

On May 21, 1990, Counihan moved in limine to suppress several tape recordings, including the February 2, 1989 conversation with Joan Maddock Carbaugh (the "Carbaugh tape"). Counihan contended that the Carbaugh tape constituted a violation of Counihan's right to privacy, citing United States v. Premises and Real Property at 4492 S. Livonia Rd., Livonia, New York, 889 F.2d 1258, 1268-69 (2d Cir.1989). The district court never ruled on Counihan's motion.

4. The trial.

The government has the initial burden under section 881(a)(7) to establish probable cause that a property was used to facilitate drug crimes. See United States v. 141st St. Corp., 911 F.2d 870, 876 (2d Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1017, 112 L.Ed.2d 1099 (1991). Once the government has met this requirement, the burden shifts to the owner of the property to establish an innocent owner defense, i.e., that the drug crimes occurred "without [her] knowledge or consent." 21 U.S.C. § 881(a)(7) (1988). Counihan, who had contested probable cause in her answer, later stipulated to probable cause. Therefore, when the case proceeded to trial, she put her case on first in an attempt to establish that she was an innocent owner. See 141st St. Corp., 911 F.2d at 876.

In her opening statement, Counihan characterized the Carbaugh tape as an attempt "to entrap her months after the event ... and ... create evidence to show in fact she wasn't an innocent owner." The government's opening made no reference to the Carbaugh tape, stressing instead the extent of Thomas Counihan's drug activity at the Property and Josephine Counihan's assertedly frequent presence there.

Counihan testified first on her own behalf. Her counsel preemptively elicited her version of the conversation she had with Carbaugh immediately after the July 22 raid and the taped conversation the two had on February 2 that the government was prepared to offer into evidence. Counihan testified that the money discussed in the February 2 taped conversation was overdue rent, rather than drug proceeds. The government subsequently cross-examined Counihan concerning those conversations. Following redirect and recross, Counihan rested.

The government then offered the testimony of Susan Brown Restrepo, a resident at 890 Noyac Road during the relevant period; Philip Chananie, an acquaintance of Thomas Counihan, occasional visitor to 890 Noyac Road and government informant; and Kenneth Mujsce, a Southampton Town police officer who investigated Thomas Counihan and participated in the raid on the Property on July 22, 1988. The government concluded its case by playing the Carbaugh tape to the jury.

In rebuttal, Counihan read to the jury portions of the depositions of Salvatore Mata and Joan Carbaugh. The government also read portions of the depositions into evidence. Finally, Counihan returned to the stand for a brief direct and cross-examination.

In summation, Counihan's counsel argued that the evidence failed to show that she was aware of her son's drug activity at the Property. In one critical passage, counsel stressed the importance of the July 22, 1988 date:

What do I mean by timing? I mean the date, July 22, 1988. That's the critical date here. Don't get deflected somehow from that critical date....