US v. 100 CHADWICK DRIVE, KINGS MOUNTAIN, NC
| Decision Date | 20 November 1995 |
| Docket Number | No. 4:92-CV251-P.,4:92-CV251-P. |
| Citation | 913 F. Supp. 430 |
| Court | U.S. District Court — Western District of North Carolina |
| Parties | UNITED STATES of America, Plaintiff, v. 100 CHADWICK DRIVE, KINGS MOUNTAIN, NORTH CAROLINA (Deed Book 1105, Page 0998, Cleveland County, North Carolina), Defendant. |
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Frank D. Whitney, Asst. U.S. Atty., U.S. Attorney's Office, Charlotte, NC, for United States.
Allen A. Bailey, Bailey Patterson Caddell & Bailey, P.A., Charlotte, NC, Richard A. Culler, Bailey, Patterson, Caddell, Hart & Bailey, Charlotte, NC, for Ronald H. Wellman.
James F. Wyatt, III, John R. Cunningham, III, Charlotte, NC, Page Dolley Morgan, Gastonia, NC, Steve B. Dolley, Jr., Gastonia, NC, for Linda Yarbro Wellman.
Page Dolley Morgan, Gastonia, NC, Steve B. Dolley, Jr., Gastonia, NC, for Ray H. Smith.
THIS MATTER is before the Court on the motion of the United States ("Government") for summary judgment (document # 34), and the cross-motion of Claimant Ronald H. Wellman ("Wellman") for summary judgment (document # 44). For the reasons stated herein, the Government's motion will be granted, and Wellman's motion will be denied.
On December 8, 1992, a federal grand jury found that there was probable cause to indict Ronald H. Wellman for multiple counts of cocaine trafficking, money laundering, and conspiracy, and returned a bill of indictment. The bill of indictment charged that on specified occasions Wellman had purchased large quantities of illegal drugs for the purpose of distribution. On December 31, 1992, the United States filed a verified complaint for forfeiture in rem including a sworn affidavit of Special Agent Daniel B. Caylor, III ("Caylor"). The complaint alleged that Wellman had used the property at 100 Chadwick Drive, Kings Mountain, North Carolina, to facilitate cocaine trafficking.1
More specifically, the forfeiture complaint alleged that Wellman used the property to facilitate at least one felonious multi-kilogram cocaine transaction. That transaction had its origins in late 1989, when Larry Busler ("Busler"), a cooperating informant, began purchasing kilogram quantities of cocaine from Wellman and Olin Thompson ("Thompson"), one of Wellman's confederates. After one such purchase, Thompson told Busler that Wellman needed to buy back four ounces of cocaine. Thompson picked up Busler, paid him for the cocaine, and they drove to the house at 100 Chadwick Drive. When they arrived at the house, Busler placed the cocaine in a newspaper box adjacent to the Chadwick Drive property. Based upon this evidence, the Magistrate found probable cause to believe that the property at 100 Chadwick Drive was subject to forfeiture and issued a warrant for the seizure of the property.
Initially, Busler had told Caylor that he had dropped the cocaine in the mailbox at 100 Chadwick Drive. Subsequently it became clear that there was no mailbox at the property. For this reason, Busler visited the site in the company of federal agents and brought them to what he called a "mailbox" but what was actually a newspaper box. No one disputes that this newspaper box is there, and Busler's testimony that he put the cocaine in that box has not been contradicted. Subsequently, Agent Caylor submitted an addendum to his affidavit addressing this matter and providing further evidence in support of the Government's motion for summary judgment.
In connection with its efforts to clarify the "mailbox" versus "newspaper box" dispute, the Government learned that Busler had dropped cocaine in the newspaper box at 100 Chadwick Drive on at least two other occasions between September and December of 1989. One drop occurred in October of 1989 after Busler had purchased one kilogram of cocaine for $27,000. A few days after that transaction Thompson called Busler and asked if he could buy back 4 to 6 ounces of cocaine. When Busler said he would sell the cocaine for $1,000 an ounce, Thompson asked Busler if he remembered how to get back to "that" house. Busler said he did not, so Thompson met him at a nearby restaurant. Thompson then drove Busler back to the property at 100 Chadwick Drive where he placed 4 ounces of cocaine in the newspaper box. As they made this drop, Busler noticed that the front door of the house at 100 Chadwick Drive was open, and Wellman was standing in the doorway. Busler asked Thompson if Wellman lived in the house. Thompson admitted that Wellman lived at 100 Chadwick Drive, but said that Busler was not supposed to know that.
Later in December of 1989, Busler bought two kilograms of cocaine from Thompson and Wellman. Approximately one week later Thompson called Busler and said that he needed 10 ounces of cocaine. When Busler said that he would sell the cocaine, Thompson asked if Busler could find the house again. Busler told Thompson he could find the house, and Busler delivered the 10 ounces of cocaine by putting it in a brown paper bag and placing the bag in the newspaper box adjacent to the house at 100 Chadwick Drive. About 10 days later, Thompson met with Busler and paid him $10,000 in cash.2
The Government and Wellman have filed cross motions for summary judgment. In his motion, Wellman claims that the Government has failed to produce evidence that there was a substantial connection between the property at 100 Chadwick Drive and any illegal activity. In part, Wellman relies on the confusion cited earlier concerning whether Busler left drugs in a "mailbox" or a "newspaper box." He also claims that the newspaper box at issue is not actually located on the property at 100 Chadwick Drive, so there is no evidence that the property is connected to his drug trafficking. Wellman also claims that a forfeiture in this case would violate the constitutional prohibition of double jeopardy and excessive fines. For its part, the Government contests each of Wellman's assertions and claims that it is entitled to forfeiture as a matter of law.
Both parties seek summary judgment pursuant to Fed.R.Civ.Proc. 56. "Under Rule 56(c), summary judgment is proper `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 321, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) citing Fed.R.Civ.Proc. 56(c). However, Rule 56 does not require the moving party to produce evidence negating an opponent's claim. Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2553. That is, "under Celotex, `the moving party on a summary judgment motion need not produce evidence, but simply can argue that there is an absence of evidence by which the nonmovant can prove his case.'" Cray Communications v. Novatel Cmptr. Systems, Inc., 33 F.3d 390, 393-94 (4th Cir.1994) (citing 10A Wright, Miller & Kane, Federal Practice and Procedure § 2720 at 10). This is because "one of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses ..." Celotex, 477 U.S. at 327, 106 S.Ct. at 2555.
"Once a defendant makes a properly supported motion for summary judgment, the burden shifts to the plaintiff to set forth specific facts showing that there is a genuine issue for trial." Sylvia Development Corp. v. Calvert County, Md., 48 F.3d 810, 817 (4th Cir.1995) citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986), and this burden is particularly important where the nonmoving party bears the burden of proof. Hughes v. Bedsole, 48 F.3d 1376, 1381 (4th Cir.1995) Anderson, 477 U.S. at 249, 106 S.Ct. at 2511. Put another way, there must be a genuine issue for trial. "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 251, 106 S.Ct. at 2512. "The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict ..." Id. Where, as here, a party moves for summary judgment based on lack of proof as to material facts, "the judge must ask himself ... whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Anderson, 477 U.S. at 251, 106 S.Ct. at 2512.
As with any summary judgment motion, "the court must draw any permissible inference from the underlying facts established in the record in the light most favorable to the non-moving party." Austin v. Clark Equipment Co., 48 F.3d 833, 835 (1995). But in order for an inference to be permissible it must be reasonable, and "whether an inference is reasonable cannot be decided in a vacuum; it must be considered in `light of the competing inferences' to the contrary." Sylvia, 48 F.3d at 818, citing Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). As the Fourth Circuit has stated:
It is the province of the jury to resolve conflicting inferences from circumstantial evidence. Permissible inferences must still be within the range of reasonable probability, however, and it is the duty of the court to withdraw the case from the jury when the necessary inference is so tenuous that it rests merely upon speculation and conjecture.
Sylvia, 48 F.3d at 818 citing Ford Motor Co. v. McDavid, 259 F.2d 261, 266 (1958) (brackets in...
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