U.S. v. Wade

• Decision Date: 10 December 1997
• Docket Number: No. Crim. 96-0472 (RCL).,Crim. 96-0472 (RCL).
• Citation: 992 F.Supp. 6
• Parties: UNITED STATES of America, v. Charles E. WADE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

Page 6

992 F.Supp. 6

UNITED STATES of America, v. Charles E. WADE, et al., Defendants.

No. Crim. 96-0472 (RCL).

United States District Court, District of Columbia.

December 10, 1997.

COPYRIGHT MATERIAL OMITTED

Barry Wiegand, Asst. U.S. Atty., Washington, DC, for U.S.

Andrew McGuire, Washington, DC, for petitioners.

Mitchell Seltzer, Washington, DC, for James Wade.

Joanne Vasco, Washington, DC, for Eugene Wade.

Thomas Abbenante, Washington, DC, for Charles E. Wade.

MEMORANDUM OPINION

LAMBERTH, District Judge.

This matter comes before the court on the motions of defendants Charles Wade and James Wade and third-party interveners Shelton Wade, Sheila Gant, Angel Wade, Jean Wade and Dorothy Wade to stay, vacate and reconsider this court's September 25, 1997 Order of Abatement for the property located at 647 G Street, S.E.; the government's opposition; and the oral arguments of all parties. For the reasons stated below, the motions are hereby denied.

I. BACKGROUND

Since at least early 1994, the Washington Metropolitan Police Department had been receiving reports that individuals were selling drugs in front of a brick row-house located at 647 G Street, S.E., Washington D.C. From April 1995 through January 1997, the police received some 42 complaints about the alleged drug trafficking activity. As an expression of their concern, a local neighborhood citizen's association took their complaints about these recurring drug transactions to a D.C. Councilman and to the United States Attorney for the District of Columbia.

In October 1994, the police began an undercover investigation of the alleged narcotics trafficking inside and in front of 647 G Street, S.E. According to police reports written in conjunction with their investigation, the distribution of the drugs usually took place in front of the house, with the distributor coming out of the house with a small quantity of drugs to sell either to pedestrians or to individuals who were driving by the house. Upon making the sale, the distributor would take the money into the house and would retrieve additional drugs for sale. Over the course of their two-year investigation, the police purchased drugs from seven different individuals in front of 647 G Street, S.E. on ten separate occasions. These individuals were Love Wade, Charles Wade, Wesley Baker, Raymond Parks, Leon Creek, Rodney Banks and Floyd Davis.

In addition to these undercover drug buys, the police confiscated drugs from 647 G Street, S.E. on at least three occasions. Two confiscations involved searches of the house (November 30, 1995 and December 16, 1996) and one occurred immediately after a drug transaction (October 5, 1996).

On December 19, 1996, a grand jury for the United States District Court for the District of Columbia handed down a seventeen-count indictment charging Charles, Eugene, James, and Love Wade, Leon Creek, Floyd Davis, Rodney Banks, Wesley Baker and Raymond Parks with narcotic conspiracy, selling, possession and related offenses. Of particular note in regard to the question before this court, all the Wades were charged with maintaining a crack house in violation of 21 U.S.C. § 856(a)(2), and keeping a disorderly house in violation of D.C.Code § 22-2722. The initial indictment also included a criminal forfeiture allegation filed under 21 U.S.C. § 853, and a parallel civil action seeking to forfeit the property pursuant to 21 U.S.C. § 881(a)(7), United States of America v. Property Identified as 647 G Street, S.E., 97-CV-0193 (RCL), with the latter dismissed by the government on October 7, 1997.

On May 28, 1997, defendants Eugene T. Wade and Charles E. Wade entered Rule 11(e)(1)(C) pleas to three counts in a joint superseding information filed against them, admitting to: (1) conspiracy to distribute and possess with intent to distribute cocaine base, in violation of 18 U.S.C. § 371; (2) unlawful distribution of cocaine base, in violation of D.C.Code § 33-541; and, (3) keeping a disorderly house and aiding and abetting, in violation of D.C.Code §§ 22-2722 and 22-105. On September 25, 1997, this court sentenced Eugene and Charles Wade, and, because the agreed-upon plea included the offense of keeping a disorderly house, an Order of Abatement was issued. See D.C.Code § 22-2717 (requiring the entry of an order of abatement if the existence of a nuisance is established); see also Raleigh v. United States, 351 A.2d 510 (D.C.App.1976) (same). This order directed the United States Marshal for the District of Columbia to:

1. cause the effectual closing of the building at 647 G Street, S.E., against its use for any purpose, and so keeping it closed for a period of 1 year, unless sooner released by further order of the Court; and,

2. remove from the building all fixtures, furniture or movable property, to include any narcotic or other contraband, and drug paraphernalia, as that term is defined in D.C.Code § 33-601(3), as plainly are used in conducting the nuisance of unlawfully selling crack cocaine base, as follows:

a. all such fixtures, furniture, or movable property used in conducting the nuisance, other than contraband, if any, shall be sold in the manner provided for the sale of chattels under execution;

b. except that, residents of 647 G Street, S.E., shall be first allowed to take from the premises all personal items and innocent property in the nature of personalty, that are not contraband or paraphernalia, and that are not plainly held for use in conducting the nuisance of unlawfully selling crack cocaine base;

3. give public notice that any person who shall break and enter or use 647 G Street. S.E., shall be punished for contempt of court, by fine of not less than $200 nor more than $1000, by imprisonment not less than three nor more than six months, or by both.

Almost immediately after its entry, a number of motions were submitted to this court challenging the Order of Abatement. These included:

(a) An Application to Vacate Order of Abatement and for Emergency Stay, filed by Shelton, Angel, Jean and Dorothy Wade and Sheila Gant ("third-party interveners"), none of whom were at any time defendants in the criminal case, but either reside at 647 G Street, S.E. and/or assert an ownership interest in the subject property;

(b) Two largely identical Motions to Vacate Order of Abatement and for Emergency Stay, one by defendant James Wade, who at the time of filing the motion was charged with keeping a disorderly house but was awaiting trial¹, and one by defendant Charles Wade who entered a plea of guilty to the disorderly house charge (c) A Motion to Reconsider Order of Abatement by Charles Wade.

Defendants and third-party interveners offer a wide array of challenges to this court's Order of Abatement. First, they argue that this court is without subject matter jurisdiction over the abatement of nuisances. Second, they claim that D.C.Code § 22-2717 provides for the mandatory issuance of an abatement order only when the property at issue is used for the purpose of lewdness, assignation or prostitution as set forth in D.C.Code § 22-2713. Because the charged offenses in this case are exclusively drug related, they contend that the disorderly house abatement scheme is inapplicable. Third, defendants and third-party interveners allege that with all of the defendants in this matter either sentenced, awaiting trial or no longer at or near 647 G Street, S.E., the alleged nuisance has already been effectively "abated," obviating the need for this court to proceed with a formal abatement order. Fourth, they claim that the non-defendant owners of the property — Dorothy, Shelton, Angel, and Jean Wade and Sheila Gant — were without guilty knowledge that any drug trafficking activity was taking place on the premises. Therefore, the Order of Abatement should not have been issued because the government did not prove that each of them knew or should have known of the illegal use. Finally, they make a series of claims that the Order of Abatement and D.C.Code § 22-2717 are unconstitutionally vague, overbroad and deprive the owners of their property without due process of law. Each of these challenges will be considered in turn.

II. STANDING OF THE THIRD-PARTY INTERVENERS

Before addressing the substantive challenges to the Order of Abatement, this court must first consider the government's challenge to James, Shelton, Jean, Angel, and Dorothy Wade's and Sheila Gant's standing to challenge the Order. This court granted the non-parties' unopposed Application by Non-party for Leave to File Motions without at that time reviewing the question of their legal standing, in large part because of the novelty of the issues presented here, and in the interests of fairness.

James Wade was a party-defendant initially charged with the offense of keeping a disorderly house, but that charge was dismissed on December 5, 1997, meaning that has no D.C.Code § 22-2722 conviction from which to appeal. His standing to contest the order of abatement is now therefore predicated on the same grounds as the third-party interveners. The other four Wades and Sheila Gant were never indicted in this case and are not "parties" to the criminal matter in any traditional sense. It is a general rule that non-parties lack standing in a criminal case and may not appeal a criminal sentence awarded another. Nonetheless, based upon the written motions, affidavits and arguments of the parties, controlling law, and equitable considerations of justice and fairness, the court finds that the Application by Non party for Leave to File was properly granted, and that James Wade and the third-party interveners have standing to come before this court and contest the Order of Abatement.

James Wade and the third-party interveners claim that they have a legally cognizable ownership interest in 647 G Street, S.E., and, as such, have standing to oppose the abatement order. This court agrees with the proposition that an owner of the subject real...