U.S. v. Two Parcels of Real Property Located in Russell County, Ala.

• Decision Date: 28 August 1996
• Docket Number: No. 12,L,No. 95-6267,12,95-6267
• Citation: 92 F.3d 1123
• Parties: 146 A.L.R. Fed. 779 UNITED STATES of America, Plaintiff-Appellee, v. TWO PARCELS OF REAL PROPERTY LOCATED IN RUSSELL COUNTY, ALABAMA, and One Parcel of Real Property Located in Lee County, Alabama, with all Appurtenances and Improvements Thereon, and More Particularly Described Hereinafter, Defendant, Joseph Carl Brown, Naomi Matichka, James William Brown, Michael W. Brown, Carrie Mae Brown, Claimants-Appellants, and One Parcel of Real Property Located at Route 1, Box 650, Salem, Lee County, Alabama, with all Appurtenances and Improvements Thereon, Defendant, Carl Brown, Naomi Matichka, Claimants-Appellants, Terry Brown, et al., Claimants, and Four Parcels of Real Property Located in Russell County, Alabama, with all Appurtenances and Improvements Thereon, Defendant, Angela Brown, et al., Claimants, Michael Brown, Joseph Carr Brown, Carrie Mae Brown, Claimants-Appellants, and One Parcel of Real Property Described as Lot 9, Rite-Way Subdivision, Highwayee County, Alabama, with all Appurtenances and Improvements Thereon, Including a Mobile Home, Defendant, James William Brown, Carrie Mae Brown, Claimants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1123

92 F.3d 1123

146 A.L.R. Fed. 779

UNITED STATES of America, Plaintiff-Appellee, v. TWO PARCELS OF REAL PROPERTY LOCATED IN RUSSELL COUNTY ALABAMA, and One Parcel of Real Property Located in Lee County, Alabama, with all Appurtenances and Improvements Thereon, and More Particularly Described Hereinafter, Defendant Joseph Carl Brown, Naomi Matichka, James William Brown Michael W. Brown, Carrie Mae Brown, Claimants-Appellants and One Parcel of Real Property Located at Route 1, Box 650, Salem, Lee County, Alabama, with all Appurtenances and Improvements Thereon, Defendant, Carl Brown, Naomi Matichka, Claimants-Appellants, Terry Brown, et al., Claimants, and Four Parcels of Real Property Located in Russell County, Alabama, with all Appurtenances and Improvements Thereon, Defendant, Angela Brown, et al., Claimants, Michael Brown, Joseph Carr Brown, Carrie Mae Brown, Claimants-Appellants, and One Parcel of Real Property Described as Lot 9, Rite-Way Subdivision, Highway No. 12, Lee County, Alabama, with all Appurtenances and Improvements Thereon, Including a Mobile Home, Defendant, James William Brown, Carrie Mae Brown, Claimants-Appellants.

No. 95-6267.

United States Court of Appeals, Eleventh Circuit.

Aug. 28, 1996.

Donald F. Samuel, Garland, Samuel & Loeb, P.C., Atlanta, GA, for Joseph Carl Brown and Carrie Mae Brown.

John T. Harmon, Asst. U.S. Atty., Montgomery, AL, for appellee.

Appeals from the United States District Court for the Middle District of Alabama.

Before ANDERSON and COX, Circuit Judges, and RONEY, Senior Circuit Judge.

PER CURIAM:

On this appeal from a summary judgment of forfeiture of several pieces of property purchased with the proceeds of marijuana transactions or used for the production of marijuana, the claimants allege several errors:

1. The complaints should have been dismissed because the conclusory allegations did not comply with the strict pleading requirements in forfeiture cases.

2. The court failed to consider claimants' evidence which established an issue of fact, or should have resulted in a summary judgment for claimants.

3. The court improperly considered evidence acquired after the filing of the complaints.

4. The court improperly considered the claimants' invocation of the Fifth Amendment in response to discovery questions in concluding there was probable cause for forfeiture.

Finding no merit to any of these assignments of error, we affirm.

Law of Forfeiture

Federal statutes provide that property is forfeited to the Government when it is used or intended to be used to facilitate illegal drug activities, 21 U.S.C. § 881(a)(7) (Supp.1994); or when it constitutes proceeds traceable to the exchange of money for a controlled substance, section 881(a)(6) (1981). Once the Government seizes property, the claimant must establish ownership of the property in question. E.g., United States v. 1012 Germantown Road, 963 F.2d 1496, 1500 (11th Cir.1992). Then it is the Government's burden to show probable cause for the belief that the property to be forfeited is substantially connected to drug dealing. 21 U.S.C. § 881(a)(3) (1988) (incorporating procedures in 19 U.S.C. § 1615 (1982) for shifting burden of proof in civil forfeiture proceeding). 1012 Germantown Road, 963 F.2d at 1500-01; United States v. Four Parcels of Real Property, 941 F.2d 1428, 1440 (11th Cir.1991) (en banc ). Once the Government has met its burden, the ultimate burden falls upon the claimant to prove by a preponderance of the evidence a defense to the forfeiture, such as the innocent owner defense, 963 F.2d at 1501, or that the property derived from a legitimate source. Section 881(d); 941 F.2d at 1438.

Thus, the critical issue in a forfeiture case is whether the Government has shown probable cause which, unrebutted by the claimants, is sufficient to permit forfeiture.

1. Sufficiency of Complaint

A complaint for forfeiture must adhere to the pleading requirements set forth in Rule E(2)(a) of the Supplemental Rules of Certain Admiralty and Maritime Claims. These rules impose a more stringent obligation on the Government than the notice pleading requirements of the Federal Rules of Civil Procedure to set forth grounds for forfeiture. See generally United States v. Property Located at 4880 S.E. Dixie Highway, 838 F.2d 1558 (11th Cir.1988); United States v. $38,000 in United States Currency, 816 F.2d 1538 (11th Cir.1987). Specifically Rule E(2)(a) requires a complaint to "state the circumstances from which the claim arises with such particularity that the defendant or claimant will be able, without moving for a more definite statement, to commence an investigation of the facts and to frame a responsive pleading." To satisfy this specificity requirement, the complaint "must allege sufficient facts to provide a reasonable belief that the property is subject to forfeiture: in particular, that the Government has probable cause to believe that a substantial connection exists between the property to be forfeited and the exchange of a controlled substance." $38,000, 816 F.2d at 1548.

In applying this standard, this Court has dismissed a forfeiture complaint where it has contained "not even a whiff of evidence" to suggest the property was in any way linked to illegal drug activity. $38,000, 816 F.2d at 1548. The complaint in $38,000 merely stated that the Government seized the currency, and recited some probable cause language from section 881. Neither the complaint nor the accompanying affidavit recited any facts to support the Government's claim of probable cause. $38,000, 816 F.2d at 1541.

The complaints in this case allege that James Brown and his son, Carl Brown, dealt in quantity sales of marijuana and cocaine over a period of time and generally describe the method of operation. ¹ Specific sales were not alleged, except for two sales which would not generate the kind of money needed for the purchase of the properties involved. The complaints then alleged the general methods of large scale drug dealers in the handling of cash, and specifically alleged the purchase with cash of each of the properties sought to be forfeited, from whom they were bought, and how the title was handled. They alleged the properties were purchased with the proceeds of drug sales, and that one parcel was used to facilitate the sale of controlled substances.

The complaints specified no date or location of any purported or intended drug dealings, no dollar amounts, no specific types or quantities of drugs sold, and no identified participants, other than the two Browns. Yet, there were sufficient facts detailed in the complaint to put claimants on notice as to the Government's basis for seizure. Indeed, as the Government notes, the claimants filed responsive pleadings (claims, answers, and on the same day, a motion for summary judgment), without obtaining a more definite statement, indicating that the complaints were sufficient under Rule E(2)(a). The motion to dismiss the complaint for failure to allege a claim with sufficient specificity was not filed until later.

When probable cause is based on evidence that the participants are generally engaged in the drug business over a period of time, have no other source of income, and that the properties were bought with the income produced from that drug business, it is not necessary to identify specific drug transactions in the complaint. See United States v. Four Parcels, 941 F.2d 1428, 1440 (11th Cir.1991).

Contrary to appellants' motion for summary judgment or dismiss argument, there was no error in denying the motion to dismiss the complaint for insufficiency.

2. Whether Sufficient Evidence to Establish An Issue of Fact

Claimants next argue the district court erred in considering evidence acquired after seizure in determining whether there was probable cause to "forfeit the property." Examination of probable cause in the civil forfeiture context may require a two-tiered analysis. First, the Government must have probable cause to seize the property. Second, the Government in court must show probable cause for "forfeit of property." Claimants, on this issue, appear to confuse probable cause to seize the property initially with the ultimate determination whether forfeiture was proper.

At the summary judgment stage where the court's focus is on the ultimate determination of whether the property is forfeit, it is perfectly appropriate for the court to consider all the evidence adduced by the Government. United States v. $121,100 in United States Currency, 999 F.2d 1503 (11th Cir.1993); Four Parcels, 941 F.2d at 1440.

a. Claimant's Motion for Summary Judgment

The application of the burdens of proof in reviewing these cross-motions is set out in United States v. Four Parcels of Real Property, 941 F.2d 1428 (11th Cir.1991). As a preliminary matter, whether it is the Government or the claimant who moves for summary judgment, the court must determine whether the Government has shown probable cause. Four Parcels, 941 F.2d at 1439. It is the claimant's initial responsibility to point out to the court why it believes the Government does not have probable cause for the forfeiture. 941 F.2d at 1439 n. 25.

The verified complaint stated that on a weekly or bi-weekly basis, either James Brown or his son, Carl Brown, would travel to Texas to purchase 50-100 pounds of marijuana and/or several ounces of cocaine. The complaint also detailed a drug transaction involving James Brown conducted in a mobile home located on one of the defendant parcels for which James Brown was later arrested. In addition, the complaint detailed the cash purchases of the property in question and how it was titled to various members of the Brown family.

As a result of discovery, the Government also adduced the following evidence: (1) four of the claimants, James William Brown, Angela Brown, Joseph Carl Brown, and Michael W. Brown had been convicted of drug related offenses; (2) the cost of the purchased...