U.S. v. One Parcel Real Property Located Route 2, Civ.A. 3:97-CV-96WS.

Citation46 F.Supp.2d 572
Decision Date04 March 1998
Docket NumberNo. Civ.A. 3:97-CV-96WS.,Civ.A. 3:97-CV-96WS.
PartiesUNITED STATES of America, Plaintiff, v. ONE PARCEL OF REAL PROPERTY LOCATED AT ROUTE 2, Box 293, Lena, Mississippi, With All Appurtenances, Improvements, and Fixtures Situated Thereon, and All Proceeds Thereof, Defendant.
CourtU.S. District Court — Southern District of Mississippi

Jerry L. Bustin, Jerry L. Bustin, Attorney, Forest, MS, for defendant.

ORDER GRANTING FORFEITURE

WINGATE, District Judge.

Before this court are the motions of the United States of America to strike the claims of all parties declaring ownership interests in the defendant property and for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.1 The plaintiff in this action is the United States of America (hereinafter the "Government"). In the above-styled and numbered cause, a forfeiture proceeding against real property and a residence utilized by Braxton Townsend and his wife, Lora Townsend, the Government contends by legal fiction that the targeted property itself is guilty of facilitating crime. See United States v. $38,570.00 United States Currency, 950 F.2d 1108 (5th Cir.1992), citing United States v. $38,000.00 in U.S. Currency, 816 F.2d 1538, 1543 n. 12 (11th Cir.1987). On or about March 2, 1997, the Government indicted Braxton Townsend on charges of: possession with intent to distribute cocaine base (crack); possession of a firearm in connection with a drug trafficking crime; money laundering; and failure to file the federal currency transaction reports required for currency transactions in excess of $10,000.00. On April 25, 1997, a duly constituted jury of his peers found Braxton Townsend guilty of all charges. Meanwhile, the Government was pursuing this forfeiture proceeding. This court's jurisdiction over this matter is predicated upon Title 28 U.S.C. §§ 1345 and 1355.2

I. JUDICIAL FORFEITURE PROCEEDINGS

Procedure pertaining to forfeiture actions is governed by the Supplemental Rules for Certain Maritime and Admiralty Claims, Title 28 U.S.C. Supplemental Rule C3 (hereinafter "Rule C" or "Rule C(6)"). The United States commences a judicial forfeiture by filing a verified complaint in the federal district court of the district where seizure occurred pursuant to Supplemental Rule C(2). The Clerk of the Court issues a summons and warrant for the arrest of the res pursuant to Supplemental Rule C(3) and delivers it to the marshal for service. United States v. $38,570.00 United States Currency, 950 F.2d at 1113, citing United States v. U.S. Currency Totalling $3,817.49, 826 F.2d 785, 786-87 (8th Cir.1987); and United States v. One Assortment of Eighty-Nine Firearms, 846 F.2d 24, 27 (6th Cir.1988). Service must be made upon the res itself. Id. at 1113, citing $38,000, 816 F.2d at 1545 n. 15; and $3,817.49, 826 F.2d at 787. However, where a potential claimant receives actual notice of the warrant, the potential claimant need not know the actual date of execution on the res before being required to respond with a verified claim, that is, a claim attested by oath or solemn affirmation. Actual notice of the warrant informs the potential claimant that execution of process on the property in question either has recently occurred or is imminent. Id. at 1114.

Supplemental Rule C(6) provides that anyone claiming ownership or other interest in the property that is the subject of the action must file a verified claim within ten (10) days after process has been executed or within such time as the court allows, and must file an answer to the complaint within twenty (20) days after the filing of the claim. Additionally, if the res is not released within ten days after execution of process, the Government must give public notice of the action in a newspaper of general circulation designated by the court in accordance with Supplemental Rule C(4), thereby giving notice to all parties having any interest to file a claim and an answer. Such notice also must specify the time within which the answer is to be filed as provided by Supplemental Rule C(6). The notice need not refer to the filing of the claim. United States v. $38,570.00 United States Currency, 950 F.2d at 1114.

II. BACKGROUND

The Government's complaint was filed on February 13, 1997. The targets of the complaint are three acres of real estate and improvements purchased in the name of Willie Pearl Duplasser on April 18, 1993, from R.T. Trippe, Joyce Trippe and Arthur Lee Kincaid as recorded in Deed Book # 159 of the Land Records reposed in the Chancery Court of Leake County, Mississippi, at pages 408 and 409. The Government alleges that this property is forfeitable under Title 18 U.S.C. § 981(a)(1)(A),4 which provides for the forfeiture of "any property, real or personal, involved in a transaction or attempted transaction in violation of Section 5313(a) or 5324 of Title 31,5 or of Section 1956 or 1957 of Title 186 or any property traceable to such property." See United States v. 1988 Oldsmobile Cutlass Supreme 2 Door, et al., 983 F.2d 670, 673 (5th Cir.1993).

On February 19, 1997, the Government served Willie Pearl Duplasser, title owner of the property in question, a copy of the notice of forfeiture and the verified complaint. Duplasser responded with an unverified claim on March 3, 1997, followed by an answer to the verified complaint on March 24, 1997. Duplasser never sought to amend her claim or to provide verification.

The Government served Braxton and Lora Townsend with notice of the warrant on February 21, 1997, and thereafter posted the real property in question with the arrest warrant on February 27, 1997. Braxton and Lora Townsend filed a motion to dismiss and for additional time to plead on March 3, 1997, followed by a verified claim of equitable interest on March 13, 1997. This motion also asked this court to suspend the Rule C(6) requirement for an answer to the Government's verified complaint within 20 days pending final resolution of the criminal case against Braxton Townsend.

The property was not released within 10 days, and on the regular work days between March 27, 1997, and April 2, 1997, the Government caused to be published a notice of forfeiture in the Clarion Ledger, a newspaper of general circulation in the area, advising any party having interest in the subject property to file a claim and answer in this case. No other interested party came forward with any claim to, or interest in, the subject property. Meanwhile, Braxton and Lora Townsend never filed an answer to the Government's verified complaint, and Willie Pearl Duplasser failed to file a properly verified claim. Braxton Townsend was found guilty of all the charges against him on April 25, 1997. Thus, the Government now asks this court to strike the pleadings of the Townsends and Duplasser in the forfeiture matter as defective and to grant the Government forfeiture pursuant to summary judgment.

To date, the Townsends still have not filed an answer. During Braxton Townsend's criminal trial, this court, in addressing the Townsends' motion for additional time to submit an answer, stated that the Townsends would not be required to file their answer until after completion of Braxton Townsend's trial. However, this court failed to enter a written order granting this suspension of the 20-day requirement and designating when the Townsends should answer. So, on January 29, 1998, this court rectified this oversight by entering an Order directing the Townsends to file under Rule C(6) within ten (10) days their answer to the Government's verified complaint. That same order also ordered the Townsends and Willie Pearl Duplasser to respond to the Government's motions to strike and for summary judgment and to show cause for their failure to respond. Neither Willie Pearl Duplasser nor the Townsends have responded as directed and the Government now moves for a final judgment of forfeiture.

III. APPLICABLE LAW UNDER TITLE 18 U.S.C. § 981

In a civil forfeiture case brought pursuant to Title 18 U.S.C. § 981(a)(1)(A), the Government has the initial burden of showing probable cause for its belief that there exists a substantial connection between the property to be forfeited and the crime. United States v. One 1987 Mercedes 560 SEL, 919 F.2d 327, 331 (5th Cir.1990). The proof of probable cause is satisfied when there is "a reasonable ground for belief ... supported by less than prima facie proof but more than mere suspicion." United States v. One 1986 Nissan Maxima GL, 895 F.2d 1063, 1064 (5th Cir.1990), quoting United States v. One 1978 Chevrolet Impala, Etc., 614 F.2d 983, 984 (5th Cir.1980). Once the government makes this showing, the burden then shifts to the claimant to demonstrate by a preponderance of the evidence that factual predicates for forfeiture have not been met, 1988 Oldsmobile Cutlass Supreme 2 Door, et al., 983 F.2d at 674, citing United States v. $364,960.00 in United States Currency, 661 F.2d 319, 325 (5th Cir.1981), or that a defense to the forfeiture applies. Id. at 674, citing United States v. Little Al, 712 F.2d 133, 136-37 (5th Cir.1983). Neither Willie Pearl Duplasser nor the Townsends have made any effort to demonstrate that they have any defense to the Government's allegations of probable cause set forth below.

a. Probable Cause

In the instant case, the Government has presented the affidavit of Sarah Davidson, a special agent with the Criminal Investigation Division of the Internal Revenue Service. This affidavit sets forth the facts supporting the Government's showing of probable cause to believe that the property in question is connected to the crimes with which Braxton Townsend has been charged and convicted.

The affidavit notes that Braxton Townsend was arrested and convicted in 1986 for violating the controlled substance laws of the State of Illinois. According to the affidavit, Braxton...

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