United States v. Real Property, 221 Dana Avenue, No. Civ.A. 98-10205-PBS.
| Decision Date | 03 January 2000 |
| Docket Number | No. Civ.A. 98-10205-PBS. |
| Parties | UNITED STATES of America, Plaintiff, v. REAL PROPERTY, BUILDINGS, APPURTENANCES AND IMPROVEMENTS Located at 221 Dana Avenue, Hyde Park, Massachusetts, Defendant, Kathleen Gass, Claimant. |
| Court | U.S. District Court — District of Massachusetts |
William F. Spallina, Newton, MA, Brian McMahon, Brian M. McMahon, Boston, MA, for Kathleen B. Gass, Defendant.
Plaintiff, the United States of America, seeks forfeiture of the defendant property (the "property"), a two-family residential dwelling, pursuant to 21 U.S.C. § 881(a)(7), alleging that the claimant's late husband, William Gass, used the property to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Mr. Gass, the sole owner of the property, committed suicide in January of 1998, shortly after he was arrested for cocaine distribution. Kathleen Gass seeks to retain the property, in which she lives with the couple's 7 year old son, asserting that she is an "innocent owner" and, alternatively, that forfeiture of the property would constitute an excessive fine in violation of the Eighth Amendment.
A jury trial commenced on October 18, 1999. Three witnesses testified: Kathleen Gass, United States Customs Service Special Agent David McClanahan, and United States Drug Enforcement Administration Special Agent Robert Allen. At the close of evidence, the United States moved for a directed verdict pursuant to Fed.R.Civ.P. 50. The claimant has also moved for entry of judgment pursuant to Fed.R.Civ.P. 58. Over the claimant's objection, the Court dismissed the jury, as there were no factual disputes to resolve, and ordered additional briefing.
For the reasons stated below, the Plaintiff's Motion for Directed Verdict is ALLOWED. The Claimant's Motion for Entry of Judgment is DENIED.
The evidence at the close of trial disclosed the following undisputed facts.
In early 1997, the Drug Enforcement Administration ("DEA") and United States Customs Service began investigating William Gass for suspected cocaine distribution. Between February and December of 1997, agents from the DEA and Customs Service worked with a confidential informant to arrange drug buys with Mr. Gass at the property. Mr. Gass operated a taxi cab business out of his home on the property. The office for the taxi cab business was in a separate apartment unit on the first floor.
On four different occasions, the confidential informant met with Mr. Gass inside the property and made controlled purchases of cocaine from Mr. Gass. Controlled purchases were conducted on February 3, February 20, March 12, and May 2, 1997. On each of these occasions, the confidential informant, who was wired with a transmitting device, was searched by law enforcement agents prior to meeting with Mr. Gass, was given funds by the agents to make the drug purchases, and was surveilled by agents as he approached the property and left the property. The agents monitored the recording device. Because of the location of the house and driveway, the agents did not actually see the confidential informant enter the house. The confidential informant then met with the agents, turned over various quantities of cocaine, and described how Mr. Gass retrieved cocaine from the office area of the property, and weighed the cocaine into bags in the kitchen area of this office on the first floor. Another transaction with Gass took place on October 23, 1997.
On January 8, 1998, based on the controlled buys and informant's statements, Mr. Gass was arrested and charged with cocaine distribution; later that day, agents executed a search warrant on the property. Mr. Gass confessed and accompanied the agents to the property, where he retrieved and turned over to agents 490 grams of cocaine and $59,000. Agents also discovered a white bucket and scale which had been used, according to the confidential informant, to weigh the cocaine. On the day of the search, Mrs. Gass became aware of her husband's cocaine distribution activities.
On January 19, 1998, Mr. Gass executed a will devising all of his property to Kathleen Gass. On January 29, 1998, he committed suicide at the property. The government filed a complaint for forfeiture of the property on February 3, 1998. On February 4, 1998, this Court found that probable cause existed to believe the property was subject to forfeiture, and a monition issued. Kathleen Gass was appointed executrix of her late husband's will on June 22, 1998.
William Gass purchased the property on February 5, 1990, and the deed was issued solely in his name. Kathleen Gass has lived in the home since 1990, and currently resides there with the couple's 7 year old son. William and Kathleen Gass were married on January 8, 1995, but no interest in the property was ever conveyed to Mrs. Gass. Mrs. Gass did not contribute money toward the purchase price or to the mortgage payments before or during their marriage. She contributed to other financial needs of the family, such as food and clothing. Since Mr. Gass's suicide, however, Mrs. Gass has made the mortgage payments on the property and has made improvements to the property. Mrs. Gass has always worked outside the home. For the past ten years, she has been an accountant for the Department of Housing and Urban Development, making $30,000 a year.
The configuration of this two family dwelling is significant. The second floor served as the family home. Mrs. Gass rarely entered the first floor area, and did not have a key to Mr. Gass's office. The cocaine, money, and other instruments recovered by the agents were found in the first floor apartment. On the day he was arrested, Mr. Gass asked to call Mrs. Gass at work prior to the search so that she would not be alarmed by police presence. Indeed, Mrs. Gass did not know of her husband's drug distribution activities prior to January 8, 1998, the date of his arrest.
A motion for judgment as a matter of law under Fed.R.Civ.P. 50(a) will be granted only in those instances where, after having examined the evidence as well as all permissible inferences drawn therefrom in the light most favorable to the non-movant, the court finds that a reasonable jury could not render a verdict in that party's favor. See, e.g., Wills v. Brown Univ., 184 F.3d 20, 29 (1st Cir.1999); Mangla v. Brown Univ., 135 F.3d 80, 82 (1st Cir.1998); Ed Peters Jewelry Co. v. C & J Jewelry Co., 124 F.3d 252, 261 (1st Cir.1997); Bogosian v. Mercedes-Benz of N. Am., Inc., 104 F.3d 472, 475 (1st Cir. 1997). The court may not take into account the credibility of witnesses, resolve evidentiary conflicts, nor ponder the weight of the evidence introduced at trial. See Logue v. Dore, 103 F.3d 1040, 1043 (1st Cir.1997).
In a forfeiture action under 21 U.S.C. § 881, once the government demonstrates probable cause to believe that property has been used in violation of federal drug laws, the burden shifts to the claimant to prove, by a preponderance of the evidence, an ownership interest in the property and ignorance of the conduct which gave rise to the forfeiture.1 See United States v. $250,000.00 in United States Currency, 808 F.2d 895, 900 (1st Cir.1987). This is known as the "innocent owner" defense. See United States v. 116 Emerson Street, 942 F.2d 74, 80 (1st Cir. 1991).
Mrs. Gass's standing as an owner is complicated by the fact that she is proceeding here in three roles: as the executrix of Mr. Gass's estate, as heir under Mr. Gass's will, and as alleged equitable owner of the property. As executrix of Mr. Gass's estate, Mrs. Gass has standing to contest the forfeiture on Mr. Gass's behalf, and stands in the shoes of Mr. Gass as if he were a party to the litigation. See United States v. 40 Clark Rd., 52 F.Supp.2d 254, 256 (D.Mass.1999); United States v. 5854 N. Kenmore, 762 F.Supp. 204, 207-08 (N.D.Ill.1991); United States v. Miscellaneous Jewelry, 667 F.Supp. 232, 236-37 (D.Md.1987); United States v. Matheson, 400 F.Supp. 1241, 1247 (S.D.N.Y.1975). However, with respect to Mr. Gass, an innocent owner defense is a non-starter. Despite his obvious ownership interest, government surveillance established that Mr. Gass was involved in cocaine distribution out of the house. He accompanied agents to the property, was present during the search, and turned over cocaine and a large sum of cash which was stored in the first floor apartment.
Mrs. Gass's next argument hinges upon establishing her own independent ownership status. In order to assert the "innocent owner" defense to forfeiture under § 881, a claimant must establish some form of ownership interest in the property. Generally speaking, "the term `owner' under § 881(a)(6) and (a)(7) has been broadly interpreted to include any person with a recognizable legal or equitable interest in the property seized." United States v. 92 Buena Vista Ave., 937 F.2d 98, 102 (3d Cir.1991), aff'd, 507 U.S. 111, 113 S.Ct. 1126, 122 L.Ed.2d 469 (1993) (quoting U.S.Code & Admin.News at 9522-23); see also 116 Emerson St., 942 F.2d at 79-80 ().
During the time preceding her husband's death, Mrs. Gass had neither a legal nor equitable ownership interest in the property. Mr. Gass was the sole title holder of the property, and never conveyed any interest to Mrs. Gass during his lifetime. Under Massachusetts probate law, property owned by each person prior to marriage remains the separate property of that person upon marriage. See Mass. Gen.L. ch. 208, § 34. Upon divorce, a court may award the separate property of either spouse to the other. See id.
In the context of forfeiture actions, courts have generally rejected arguments that a right to equitable distribution of marital...
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