U.S. v. Santoro

• Decision Date: 31 January 1989
• Docket Number: Nos. 88-6036,88-6042,s. 88-6036
• Citation: 866 F.2d 1538
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas F. SANTORO; Catherine Marie Santoro; Thomas F. Santoro, as Guardian Ad Litem for Christopher Jason Ashley Santoro; Claimants-Appellants, North Carolina Civil Liberties Union Legal Foundation, Amicus Curiae, and 26.075 Acres, More or Less, Located in Swift Creek Township, Wake County, North Carolina, A Parcel of Real Property and all Improvements, Buildings, Structures, Fixtures, Furnishings, and Appurtenances Situated Thereon, said Property Being Titled in the Name of Rosemarie D. Santoro; and any and all Proceeds from the Sale of Said Property, Defendant. UNITED STATES of America, Plaintiff-Appellee, v. Rosemarie SANTORO, Claimant-Appellant, North Carolina Civil Liberties Union Legal Foundation, Amicus Curiae, and 26.075 Acres, More or Less, Located in Swift Creek Township, Wake County, North Carolina; a Parcel of Real Property and all Improvements, Buildings, Structures, Fixtures, Furnishings, and Appurtenances Situated Thereon, said Property being Titled in the Name of Rosemarie D. Santoro; and any and all Proceeds from the Sale of Said Property, Defendant, Thomas F. Santoro; Catherine Marie Santoro; Thomas F. Santoro, as Guardian Ad Litem for Christopher Jason Ashley Santoro, Claimants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1538

866 F.2d 1538

104 A.L.R.Fed. 273

UNITED STATES of America, Plaintiff-Appellee, v. Thomas F. SANTORO; Catherine Marie Santoro; Thomas F.

Santoro, as Guardian Ad Litem for Christopher

Jason Ashley Santoro; Claimants-Appellants,

North Carolina Civil Liberties Union Legal Foundation, Amicus Curiae,

and

26.075 Acres, More or Less, Located in Swift Creek Township,

Wake County, North Carolina, A Parcel of Real Property and

all Improvements, Buildings, Structures, Fixtures,

Furnishings, and Appurtenances Situated Thereon, said

Property Being Titled in the Name of Rosemarie D. Santoro;

and any and all Proceeds from the Sale of Said Property, Defendant.

UNITED STATES of America, Plaintiff-Appellee, v. Rosemarie SANTORO, Claimant-Appellant, North Carolina Civil Liberties Union Legal Foundation, Amicus Curiae, and 26.075 Acres, More or Less, Located in Swift Creek Township,

Wake County, North Carolina; a Parcel of Real Property and

all Improvements, Buildings, Structures, Fixtures,

Furnishings, and Appurtenances Situated Thereon, said

Property being Titled in the Name of Rosemarie D. Santoro;

and any and all Proceeds from the Sale of Said Property, Defendant,

Thomas F. Santoro; Catherine Marie Santoro; Thomas F.

Santoro, as Guardian Ad Litem for Christopher

Jason Ashley Santoro, Claimants.

Nos. 88-6036, 88-6042.

United States Court of Appeals Fourth Circuit.

Argued Oct. 31, 1988.

Decided Jan. 31, 1989.

Lacy Martin Presnell, III (Burns, Day & Presnell, P.A. on brief), Nicholas John Dombalis, II (Elizabeth Anania, Merriman, Nicholls & Crampton, P.A., on brief), for claimants-appellants.

Stephen Aubrey West, Asst. U.S. Atty. (Margaret Person Currin, U.S. Atty., on brief) for plaintiff-appellee.

William G. Simpson, Jr., Staff Attorney, NCCLU-LF, on brief, for amicus curiae.

Before HALL, Circuit Judge, BUTZNER, Senior Circuit Judge, and BOYLE, United States District Judge for the Eastern District of North Carolina, sitting by designation.

K.K. HALL, Circuit Judge:

In this 21 U.S.C. Sec. 881(a)(7) civil forfeiture proceeding, Rosemarie Santoro appeals the order of the district court granting summary judgment against her claim on the defendant real property. Thomas Santoro, Rosemarie's husband, and their children, Catherine Marie and Christopher, appeal the same order which struck their claims for lack of standing. Because we find that the defendant real property was used to facilitate illegal drug transactions, we affirm the district court's order as to Rosemarie Santoro. Likewise, because Thomas Santoro had no interest in the property, we affirm his dismissal from the case. However, because we find that the Santoro children did have a beneficial interest in the property, we reverse the lower court's order as to the children.

I.

The defendant real property is the Santoro residence, located in Wake County, North Carolina. It consists of approximately 26 acres and is worth in excess of $100,000. The property is bisected by a road and has been taxed as two separate parcels. However, the property's deed describes it as a single, undivided tract. On one side of the road lies a five-acre parcel, on which the house, a barn, and several outbuildings are situated. On the other side of the road lies the balance of the property, all of which is unimproved. ¹

The property is the remainder of a 38-acre farm that was purchased by the Santoros in 1979. In 1983, the Santoros were divorced and Mr. Santoro conveyed his one-half interest in the property to Mrs. Santoro under the terms of a separation agreement. ² She was to use his share of the property to provide for the children's maintenance and education. Presently, both of the children attend college.

After the divorce, Mrs. Santoro and the children continued to reside on the property and Mrs. Santoro ran a small business out of their home. Also, as was planned in the separation agreement, she subdivided and sold portions of the property for the children's support.

On four separate occasions in May and June of 1986, Mrs. Santoro sold small amounts of cocaine to Deputy Angela Knight, an undercover officer for the Wake County Sheriff's Department. All of the sales occurred on the smaller portion of the property. There is no evidence that illegal drugs were ever stored or manufactured on the property and it is apparent that Mrs. Santoro was only acting as an intermediary in the transactions. For her part in the sales, Mrs. Santoro received little or no money.

On June 30, 1986, Mrs. Santoro was indicted for several narcotics violations. On September 8, 1986, she pleaded guilty to one felony count of possession with intent to distribute 2.9 grams of cocaine, in violation of 21 U.S.C. Sec. 841(a)(1).

On July 24, 1986, the government filed this forfeiture action against the defendant real property based on the alleged criminal conduct of Mrs. Santoro. On August 21, 1986, Mrs. Santoro, as record owner of the property, intervened and filed a claim. One week later, Mr. Santoro and the Santoro children also intervened, claiming an interest in the property. The government moved to strike the claims of Mr. Santoro and the children on the ground that they had no interest in the property and, consequently, lacked standing. The government and Mrs. Santoro filed cross-motions for summary judgment as to her claim. On April 15, 1988, the district court granted both of the government's motions, finding all of the defendant property subject to forfeiture. This appeal followed.

II.

Appellants raise a variety of contentions. First, they contend that the forfeiture provision of 21 U.S.C. Sec. 881(a)(7) is unconstitutionally vague on its face and as applied in this case. In the alternative, they maintain that if the statute is not vague, the facts of this case do not support its application to this property. Appellant's second alternative argument is that even if forfeiture were appropriate, it would be appropriate only for the residence portion of the property and not the entire tract. Mrs. Santoro argues that this provision, though couched as a civil forfeiture provision, is in reality a criminal forfeiture provision whose terms violate the constitutional guarantees of proportional punishment and due process. Mr. Santoro and the children contend that they were beneficial owners of the property and the trial court erred in dismissing their claims. We address these contentions seriatim.

Appellants' vagueness attack focuses on the words "use" and "facilitate" as they are found in the statute:

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

(7) All 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 this title punishable by more than one year's imprisonment, except that no property shall be forfeited under this paragraph, 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.

21 U.S.C. Sec. 881(a)(7).

Appellants premise their vagueness argument on the fact that two divergent lines of authority have arisen concerning what constitutes "use" or "facilitation" under similar forfeiture provisions. The more liberal view of these terms holds property forfeitable whenever it "in any way" tends to make the trafficking of drugs easier. United States v. One 1977 Lincoln Mark V Coupe, 643 F.2d 154, 157 (3d Cir.), cert. denied, 454 U.S. 818, 102 S.Ct. 97, 70 L.Ed.2d 88 (1981). The more restrictive view of the statute allows forfeiture only if there has been established a " 'substantial connection' between the property and the underlying criminal activity." United States v. All Those Certain Lots, 657 F.Supp. 1062, 1064 (E.D.Va.1987); United States v. One 1972 Chevrolet Corvette, 625 F.2d 1026, 1029 (1st Cir.1980). Appellants conclude from this split in authority that if the courts cannot agree as to what the statute means, a person of ordinary intelligence certainly cannot reasonably be expected to know what activity the statute prohibits. While appellants' arguments might be persuasive under different circumstances, under the facts of this case, there is no room for them to complain of vagueness.

As the district court noted, while the terms "use" or "facilitate" can be, and have been, subject to differing interpretations, no reasonable interpretation could conclude that property which was used repeatedly as the situs for illegal cocaine sales was not "used, in any manner or part" to distribute cocaine. See United States v. 124 East North Ave., Lake Forest, Ill., 651 F.Supp. 1350, 1353-54 (N.D.Ill.1987). Thus, as applied in this case, this statute is not unconstitutionally vague. Furthermore, a party who engages in conduct clearly proscribed by a statute cannot complain of the vagueness of that statute as applied to others. Village of Hoffman Est. v. Flipside, Hoffman Est., 455 U.S. 489, 495, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982). Therefore, appellants' facial challenge must fail as well.

Appellants next contend that there is not a sufficient connection between the defendant real property and illegal drug trafficking to justify this forfeiture. They maintain that there must be a "substantial connection" between the property and the predicate illegal acts, a connection they conclude is not present in this case.

We agree with appellants that for property to be forfeitable under 21 U.S.C. Sec. 881(a)(7), there must be a substantial connection between the property and the underlying criminal activity. Certain Lots, supra, at 1065. Although this Court has never expressly addressed this issue as it relates to 21 U.S.C. Sec. 881(a)(7), we have found the "substantial connection" standard appropriate...