U.S. v. One Parcel of Real Estate Commonly Known as 916 Douglas Ave., Elgin, Ill.

• Decision Date: 29 May 1990
• Docket Number: No. 88-3361,88-3361
• Citation: 903 F.2d 490
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. ONE PARCEL OF REAL ESTATE COMMONLY KNOWN AS 916 DOUGLAS AVENUE, ELGIN, ILLINOIS, Defendant. Appeal of Paul F. BORN, III, Claimant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 490

903 F.2d 490

58 USLW 2740

UNITED STATES of America, Plaintiff-Appellee, v. ONE PARCEL OF REAL ESTATE COMMONLY KNOWN AS 916 DOUGLAS

AVENUE, ELGIN, ILLINOIS, Defendant.

Appeal of Paul F. BORN, III, Claimant-Appellant.

No. 88-3361.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 3, 1989. ¹

Rehearing Denied July 16, 1990.

Decided May 29, 1990.

Thomas P. Walsh, Asst. U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Robert J. Raab, Barnett & Raab, Chicago, Ill., for claimant-appellant.

Before BAUER, Chief Judge, and FLAUM and KANNE, Circuit Judges.

BAUER, Chief Judge.

This is an appeal from a judgment of forfeiture in favor of the United States against Paul F. Born, III. The district court found that Born had used his one-third interest in property at 916 Douglas Avenue, Elgin, Illinois, to facilitate the felony distribution of cocaine, and ordered the forfeiture of that property pursuant to 21 U.S.C. Sec. 881(a)(7). Born claims that because no substantial connection existed between the cocaine and his property the order of forfeiture was improper. We disagree with Born's suggested construction of the statute and affirm.

I.

Paul F. Born, III was apparently no stranger to drug transactions. On February 20, 1986, he met with John Mueller, an undercover investigator for the Cook County States Attorney's Office at the Corfu Restaurant in Hanover Park, Illinois. Born had already served time in prison for narcotics trafficking and had also been convicted for weapons offenses. Mueller offered to sell Born a kilogram of cocaine, but Born declined because he was in the process of selling a kilogram he had just purchased. Born gave Mueller his home phone number and the two agreed to keep in touch.

On April 15, 1986, Mueller called Born at home and explained that he was out of cocaine and needed two ounces. Born stated that the quantity was not a problem and agreed to sell Mueller the cocaine for $1600 an ounce. ² Born concluded the conversation by instructing Mueller to call him at home the next day to arrange a time and place for the deal.

The next morning, Mueller again called Born's home, but the phone was answered by Don Mazzanti. Mazzanti explained that Born was asleep and could not come to the phone. When Mueller said that he was calling about the purchase of two ounces of cocaine, Mazzanti told him to try again later when Born was awake. Later that day, however, Mazzanti called Mueller and arranged to deliver the cocaine that evening at the Players' Lounge in Streamwood, Illinois.

That night the deal took place as arranged. Outside the lounge, Mazzanti got into Mueller's vehicle. Mueller gave Mazzanti $3200 in exchange for the cocaine. Mazzanti explained to Mueller that, should ever need more cocaine he should call Born again. This initial delivery was, according to Mazzanti, Born's way of feeling out Mueller to make sure he was legitimate.

In October, 1986, the United States filed a complaint seeking the forfeiture of Born's house in Elgin, Illinois under 21 U.S.C. Sec. 881(a)(7). Prior to this action, Born was convicted of conspiracy to possess five kilograms of cocaine with intent to deliver and given a 23-year sentence. United States v. Born, No. 87 CR 518 (N.D.Ill.) The government brought this forfeiture action to seize the real estate from which Born was running his cocaine operation.

Following a bench trial, the district court held that Born's house was used to facilitate his drug business and ordered forfeiture of Born's one-third interest in the real estate. ³ Born subsequently filed a timely notice of appeal and the district court entered a stay pending this court's determination.

II.

Our threshold issue for determination on this appeal is whether a "substantial connection" must be demonstrated between the property and the underlying drug offense in order to justify forfeiture under 21 U.S.C. Sec. 881(a)(7). Born contends that such a requirement is necessary to harmonize the forfeiture statute with Congressional intent. The government, of course, argues for a stricter reading of the statute.

The Controlled Substances Act of 1970, 21 U.S.C. Secs. 801-970, included a civil forfeiture provision which called for the forfeiture of several forms of property used to transport "or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of" illegal drugs. 21 U.S.C. Sec. 881(a)(4). This section provided for the forfeiture of automobiles, trucks, aircraft, drug containers, raw materials used in the manufacturing process and the illegal drugs themselves, among other property. Significantly absent were provisions calling for the forfeiture of money or things of value exchanged for illegal drugs and real estate used to facilitate the commission of a drug felony. In 1978, Congress added Sec. 881(a)(6) providing for the forfeiture of money and the proceeds of illegal drug dealing. ⁴ Six years later, Congress closed another loophole by passing an amendment which added Sec. 881(a)(7), the provision at issue here, which extended forfeiture to real estate. This provision states, in part:

The following shall be subject to forfeiture to the United States and no property right shall exist in them:

(7) All real property ... which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this title punishable by more than one year's imprisonment....

(Emphasis added). As with any question of statutory interpretation, our "starting point must be the language employed by Congress." Reiter v. Sonotone Corp., 442 U.S. 330, 337, 99 S.Ct. 2326, 2330, 60 L.Ed.2d 931 (1979). See also Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). This court has stated that we will look beyond the express language of a statute only where that statutory language is ambiguous or where a literal interpretation would lead to an absurd result or thwart the purpose of the overall statutory scheme. See United States v. Tex-Tow, Inc., 589 F.2d 1310, 1313 (7th Cir.1978).

Here, the language of the statute is clear, straightforward and unambiguous. Forfeiture is appropriate if the property is "used, or intended to be used, in any manner or part, to commit or to facilitate the commission of" a drug offense. Congress intended to reach all real property used to promote the drug trade. It is a broad, sweeping amendment which grants wide powers to the executive branch for the limited purpose of combating the flow of illegal drugs. Grafting an implied "substantial connection" test on to the plain language of this statute would not avoid ambiguity or the frustration of the Congressional scheme, but promote them. We see no reason to read the penalties of this statute more narrowly than the plain language demands.

Indeed, Born does not contend that the addition of this "substantial connection" test is necessary to avoid an absurd result or frustration of the statutory scheme. Instead, Born relies on a section of the Senate Report to the 1984 amendment adding Sec. 881(a)(7) to bolster his argument. The Supreme Court has stated that when statutory language is unambiguous, it is presumed to express the legislative purpose and resort to the legislative history is not necessary. See American Tobacco Company v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534, 1537, 71 L.Ed.2d 748 (1982). Nevertheless, despite the clear wording of Sec. 881(a)(7), Born points to a section of the Senate Report which address the problems to be corrected by the new amendment. This particular discussion states:

Under current law, if a person uses a boat or car to transport narcotics or uses equipment to manufacture dangerous drugs, his use of the property renders it subject to civil forfeiture. But if he uses a secluded barn to store tons of marijuana or uses his house as a manufacturing laboratory for amphetamines, there is no provision to subject his real property to civil forfeiture, even though its use was indispensable to the commission of a major drug offense and the prospect of the forfeiture of the property would have been a powerful deterrent.

S.Rep. No. 225, 98th Cong., 1st Sess. 195, reprinted in 1984 U.S.Code Cong. & Ad. News 3182, 3378 (emphasis added in Appellant's brief). Born reads this section to imply that Congress did not intend the forfeiture statute to apply to property with only an incidental or fortuitous connection to the drug business, but only to real estate which is "substantially connected" to illegal activity. While we agree that the property must have more than an incidental or fortuitous connection to criminal activity, we decline to read the statute more leniently than this.

The Senate Report cites some of the more egregious examples created by the loophole in the forfeiture statute. By omitting real estate from Sec. 881(a), Congress had inadvertently left a wide range of property used to facilitate commerce in illegal drugs outside of its reach. The legislation itself, however, no more demands that the property be "substantially connected" to the underlying offense than it requires that the property be "indispensable" to the crime. Yet, "indispensable" is precisely the word used in portions of the Senate Report relied upon by Born. Even Born concedes that an "indispensability" requirement would be a misreading of the statute.

Born's selective use of the legislative history as our controlling guide to the statute could also lead to other absurd results. A literal interpretation of this passage in the Senate Report could also limit forfeiture only upon the discovery of "tons of marijuana" rather than merely several kilograms, or demand that homes be used as "manufacturing laboratories for amphetamines" instead of simple storage areas for the drugs. We would not tolerate such a reading of the plain language in a statute, nor will we give such an absurd reading to a...