U.S. v. One Parcel of Real Estate at 1012 Germantown Road, Palm Beach County, Fla.

• Decision Date: 26 June 1992
• Docket Number: No. 89-5590,89-5590
• Citation: 963 F.2d 1496
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. ONE PARCEL OF REAL ESTATE AT 1012 GERMANTOWN ROAD, PALM BEACH COUNTY, FLORIDA also known as "D's" Grocery, Defendant-Appellant, Roberto Chang, Claimant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1496

963 F.2d 1496

UNITED STATES of America, Plaintiff-Appellee, v. ONE PARCEL OF REAL ESTATE AT 1012 GERMANTOWN ROAD, PALM BEACH COUNTY, FLORIDA also known as "D's" Grocery Defendant-Appellant Roberto Chang, Claimant-Appellant.

No. 89-5590.

United States Court of Appeals Eleventh Circuit.

June 26, 1992.

James L. Eisenberg, West Palm Beach, Fla., Joel Kaplan, Miami, Fla., for defendant-appellant.

Dexter Lehtinen, U.S. Atty., Lynn M. Summers, Linda Collins Hertz, Anne M. Hayes, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before KRAVITCH, Circuit Judge, HILL ^* and SMITH ^**, Senior Circuit Judges.

KRAVITCH, Circuit Judge:

In a special verdict rendered in the United States District Court for the Southern District of Florida, a jury determined that the property of claimant Roberto Chang was subject to forfeiture pursuant to 21 U.S.C. § 881(a)(7). Chang appeals this verdict challenging a) the district court's decision to allow the jury to overhear hearsay evidence and b) a special interrogatory equating consent with a property owner's failure to take all reasonable efforts to prevent illicit use of his property. Because the district court committed reversible error when it allowed the jury to overhear inadmissible hearsay evidence, we remand for a new trial at which the judge should thoroughly instruct the jury on the legal definition of consent.

I. THE FACTS

The defendant real estate is a parcel of land situated at the intersection of 10th Street and Germantown Road, Delray Beach, Palm Beach County, Florida (1012 Germantown Road). Located on this real estate is a convenience store where such items as fresh coffee, soda, beer, bread and canned foods are sold. The store is referred to as "D's Grocery," and is owned, along with the accompanying real estate, by Roberto Chang ("claimant"), the proprietor of the store. Claimant purchased the property in 1979 or 1980 following a period during which he leased the store from the prior owner.

In January, 1987, a task force was formed to address the drug trafficking problems plaguing the greater Germantown Road area. The force consisted of agents from the Federal Bureau of Investigation and other federal agencies, as well as officers from the local police and sheriff's offices. The local law enforcement agencies had proposed the creation of such a task force after realizing that their increased commitment of resources had led to even less success in controlling the drug traffic.

The initial focus of the task force was the source of supply of narcotics in the targeted areas, including the 10th Street/Germantown Road neighborhood. Because street arrests had proven ineffective, the strategy of the task force was to incapacitate the source of the drug supply. The local agencies, prior to the formation of the task force, had developed an intelligence base that indicated that an individual named Deniz Fernandez and an associate were the source of the narcotics in the area.

The FBI agent assigned to head the task force used this information to identify specific locations in the 10th Street/Germantown Road area associated with the sale of cocaine and other drugs. Two of these properties were identified as "The Hole" and D's Grocery. The Hole was owned by Deniz Fernandez, Abraham Oliva, and Roberto Rodriguez, and D's Grocery was owned by claimant.

As a result of the task force investigation, Deniz Fernandez, Abraham Oliva, Roberto Rodriguez, and others were indicted. Civil forfeiture actions commenced on numerous properties in the 10th Street/Germantown area, including D's Grocery. The indictment was received into evidence.

The government presented numerous witnesses who testified to buying and selling drugs at the 1012 Germantown location. Many of these witnesses discussed the relationship between The Hole and the parking lot of D's Grocery. According to these witnesses, the sale would commence on the grounds of the grocery, but the supplies were stored at The Hole. Often the dealers would run from the parking lot to The Hole to obtain more drugs for sale. The government offered no witnesses who admitted selling or buying drugs inside of D's Grocery or who ever saw drugs within the Grocery.

Claimant Chang was aware of the drug activity occurring on and around his property. He testified, however, that he never saw drugs or drug transactions occurring within his store. Chang also introduced corroborating testimony from fourteen witnesses who were either residents of the area or otherwise familiar with the Germantown location.

Chang and several of his witnesses testified that he tried constantly to halt the drug traffic. On numerous occasions he or one of his employees would call the police. Often, he would personally leave the store to chase away the dealers. He placed large yellow signs in both front windows of the store which said "No Loitering." He installed cameras and mirrors inside his store to detect illegal activity. He removed the telephones on the north side of his building because he suspected they were being used to facilitate drug sales. He paved over the dirt parking lot to prevent drug dealers from burying their drugs in the dirt. He erected tall fences, installed a burglar alarm and kept watchdogs. He asked several of his friends and some drug dealers to assist him in moving the drug traffic off his property.

The government claims that Chang made insufficient efforts to prevent drug dealings on his property. They question the number of calls he made to police, arguing that claimant should have obtained phone logs to prove his calls. In addition, they claim that Chang only chased away the drug dealers when the police were able to observe him doing so. Finally, the government suggested, during closing arguments, that Chang should have released his dogs to drive away the loiterers.

Through the task force investigation, the police compiled information linking Roberto Chang with the convicted drug supplier, Deniz Fernandez. A search of Fernandez' home uncovered an album containing a photograph of Deniz Fernandez, Abraham Oliva and claimant Roberto Chang in an obviously social setting. In addition, Fernandez' business (a plant nursery) had originally been located in a shed on claimant's property that Fernandez had leased from Chang. In the past, Chang had lent money to Fernandez to start his nursery business, and Fernandez had paid him back completely. Chang acknowledged that Fernandez was his friend due to their connections in Cuba but denied that he knew of Fernandez' involvement in drug dealing.

II. COURSE OF PROCEEDINGS

On June 1, 1988, the government filed a claim against D's Grocery, alleging that the property was subject to forfeiture under 21 U.S.C. § 881(a)(7) as real property used to commit, or facilitate, the commission of a violation of Title 21. Claimant requested a jury trial.

Following argument of counsel on the order of proof and the admissibility of hearsay evidence during the government's initial probable cause case, the district court issued a ruling concerning the appropriate procedure to be utilized during the trial. The district court ruled that: (1) the issue of probable cause was a question for the court; (2) the government's probable cause evidence would be heard in the "presence of the jury because, otherwise, the case [would not] make any sense at all to let the defendant go forward with proof, and disprove something not at issue"; (3) the government would present its probable cause evidence first, then the court would make a legal determination of probable cause; and (4) if probable cause was established, then claimant would have the burden of proving his defense, and the government would be permitted to offer rebuttal evidence.

Trial commenced pursuant to this procedure. The government presented its evidence before the jury, and the district court ruled that the government had met its probable cause burden. Chang then presented his case, and the government had the opportunity to rebut. After completion of the closing arguments, the judge instructed the jury concerning the issues on which a verdict was necessary. The judge specifically modified Requested Jury Instruction No. 18 to eliminate the language requiring claimant to do "all he could do to prevent the illegal use of the defendant real estate" in order to prevent a section 881(a)(7) forfeiture. The jury was instructed to make its determination in the form of a special verdict, consisting of four interrogatories. The claimant made no objection to the jury instructions but objected to the last special interrogatory.

The jury returned a verdict in favor of the United States. The special interrogatory verdict form stated the jury's findings that claimant had not proven: (1) that the property had not been used to commit drug violations; (2) that claimant did not know of the illegal use of the property; (3) that claimant did not consent to the illegal use of the property; and (4) that claimant did not do everything that he could reasonably be expected to do to prevent the illegal use of the property. The district court subsequently entered a final judgment of forfeiture in accordance with the jury verdict. Claimant now appeals.

III. THE CLAIMS

Claimant raises four issues on appeal. First he argues that the district court erred when it chose to hear the government's probable cause hearsay evidence in the presence of the jury. Second, he claims that the district court erred by submitting the fourth special interrogatory to the jury in which the jury was asked whether claimant had proven that he had taken all reasonable actions to prevent his property from being used in violation of the drug laws. The other two issues raised by claimant are without merit, and in any case, need not be addressed given our decision to remand for a new trial on the basis of Chang's first...