US v. 2511 E. FAIRMONT AVE., BALTIMORE, MD.

• Decision Date: 16 October 1989
• Docket Number: Civ. No. H-88-3325.
• Citation: 722 F. Supp. 1273
• Parties: UNITED STATES of America v. ALL THAT LOT OF GROUND KNOWN AS 2511 E. FAIRMOUNT AVENUE, BALTIMORE, MARYLAND 21224 and the Improvements Thereon.
• Court: U.S. District Court — District of Maryland

722 F. Supp. 1273

UNITED STATES of America v. ALL THAT LOT OF GROUND KNOWN AS 2511 E. FAIRMOUNT AVENUE, BALTIMORE, MARYLAND 21224 and the Improvements Thereon.

Civ. No. H-88-3325.

United States District Court, D. Maryland.

October 16, 1989.

Asst. U.S. Atty. Glenda G. Gordon, and Asst. U.S. Atty. Robert E. Sims, Baltimore, Md., for plaintiff.

Benjamin Lipsitz, Baltimore, Md., for claimants.

MEMORANDUM AND ORDER

ALEXANDER HARVEY, II, Chief Judge.

Pending before the Court in this consolidated civil action is a motion for summary judgment filed by plaintiff United States of America. The government has here instituted seven separate civil forfeiture suits against seven separate parcels of real estate pursuant to the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§ 801 et seq. (hereinafter "the Act"). Forfeiture of these seven parcels has been sought by the government on the ground that the properties were purchased with proceeds traceable to the sale of narcotics or were used to facilitate such sale. See § 881(a)(6) and § 881(a)(7).

Bernard Kaufman and Carmela Kaufman, his wife, have duly filed claims in these seven suits and are here contesting these forfeitures. These claimants, along with their deceased son, Thomas Kaufman, purport to hold legal title to the properties at issue either in their own names or as stockholders of a corporation. In its Memorandum and Order of February 1, 1989, this Court denied the government's motion to strike the Kaufman's claims in two of these consolidated cases. In that ruling, the Court noted that Thomas Kaufman is a suspected drug dealer who is claimed by the government to have bought or improved the seven properties at issue with proceeds derived from narcotics trafficking.

As to five of the seven properties, the government, in seeking summary judgment under Rule 56, F.R.Civ.P., is here contending that the Kaufmans have produced insufficient evidence to create genuine disputes of material fact concerning the validity of their claims to the properties. First, the government argues that it has met its initial burden of proving that probable cause exists to support forfeiture of the five properties in question. As to three of the properties, the government further argues that claimants do not even have any cognizable legal interest because of the relation-back provisions of the Act. Contending that it has thus carried its burden of proof, the government next asserts (1) that claimants have responded to their motion for summary judgment with no evidence indicating that any of the properties were not bought with the proceeds of narcotics trafficking; and (2) that claimants cannot meet their burden of showing that they qualify as "innocent owners" of these properties within the meaning of the Act.

In opposing the pending motion, claimants rely almost exclusively on their own deposition testimony. They assert that genuine disputes as to material facts exist in this record as to each of the elements of the government's case. Primarily, claimants are here contending that the record affords a basis whereby a trier of fact could indeed conclude that claimants were "innocent owners" of the properties.

Memoranda in support of and in opposition to the pending motion for summary judgment have been reviewed by the Court. Oral argument has been heard in open Court. For the reasons to be stated herein, this Court finds and concludes that the government's motion for summary judgment must be granted in part and denied in part.

I Facts

The background facts in this case have been set forth in the Court's Memorandum and Order of February 1, 1989 but bear repeating and expanding for purposes of the pending summary judgment motion. As noted, the government has instituted separate forfeiture actions against seven different properties in the Baltimore metropolitan area. All seven cases have been consolidated for all purposes pursuant to Rule 42(a), F.R.Civ.P. These seven properties are located at (1) 2511 East Fairmount Avenue; (2) 1516-1518 North Gay Street; (3) 2800 McComas Avenue; (4) 518 Middle River Road; (5) 11028 Bird River Grove Road; (6) Lot # 16, Galloway Road; and (7) 3713 Rush Road and 70 Surrounding Acres. The government concedes that, with respect to the Fairmount Avenue and Gay Street properties, disputes exist as to issues of material fact, rendering Civil Nos. H-88-3325 and H-88-3326 unsuitable for disposition by way of summary judgment. The five remaining properties are the subject of the pending motion for summary judgment.

The title owners of four of the five properties include claimants Bernard and Carmela Kaufman. The title owner of the fifth property, Lot # 16, Galloway Road, is Rocks View Manor, Inc. Section 881(a)(6) of the Act provides the legal basis for the government's claim that all five properties are subject to forfeiture, and, relying on that statute, the government is here contending that the properties were all bought with the proceeds of drug trafficking. Insofar as the Rush Road property is concerned, the government seeks forfeiture of that parcel and the substantial improvements thereon based on the additional ground, pursuant to § 881(a)(7), that such property was used to facilitate the sale of narcotics.

The factual basis for the government's position is as follows. On August 12, 1988, claimants' son, Thomas Kaufman, was shot and killed in Washington, D.C., apparently as the result of an execution-style murder which was related to his involvement in the distribution of narcotics. Since June 1987, the Narcotics Division of the Baltimore County Police Department had been investigating the cocaine trafficking activities of Thomas Kaufman in Baltimore and Harford Counties. During this investigation, it was revealed that Thomas Kaufman had stored some of his cocaine and money in metal ammunition boxes buried at the house of his mother, Carmela Kaufman. Her home was located at 711 Seneca Garden Road, Baltimore, Maryland.

Several days after the murder of Thomas Kaufman, search and seizure warrants were issued pertaining to the property located at 711 Seneca Garden Road. During their search of these premises, law enforcement officers discovered that Bernard and Carmela Kaufman were indeed residents of the house located at this address and that Thomas Kaufman had a room there. Among the items seized from the room of Thomas Kaufman were documents revealing extensive financial information relating to the real estate holdings, bank accounts, stocks, and other monetary interests of Thomas Kaufman.

The residence at 711 Seneca Garden Road had been the site of earlier incidents. In February of 1984, officers of the Baltimore County Police Department had obtained and executed a search and seizure warrant directed at the home. The police searched the entire house, including an old safe in the basement, because of their belief that Thomas Kaufman then was engaged in narcotics trafficking. About a year later, in April of 1985, two armed assailants entered the home at 711 Seneca Garden Road, looking for drugs and money. The assailants tied up Thomas Kaufman, his mother Carmela Kaufman, and his former girlfriend, Angela Crawford.

On the basis of the information developed by their investigation, law enforcement officers concluded that Thomas Kaufman had purchased numerous parcels of real estate, including the seven involved in this case, with monies he had earned through the distribution of drugs. When the results of this investigation were brought to the attention of United States Magistrate Paul Rosenberg, a warrant was issued for seizure of all seven parcels of real property. On September 9, 1988, the properties at issue in this case were seized by the United States Marshal. The government thereafter instituted these forfeiture proceedings.

II Summary Judgment Principles

It is well settled that a party moving for summary judgment has the burden of demonstrating that no genuine issue of material fact exists and that such party is entitled to judgment as a matter of law. Rule 56(c), F.R.Civ.P.; see also Barwick v. Celotex Corp., 736 F.2d 946, 958 (4th Cir.1984). This burden may be met by consideration of affidavits, exhibits, depositions and other discovery materials. Id.

One of the purposes of Rule 56 is to require an opposing party, in advance of trial and after a motion for summary judgment has been filed and supported, to come forward with some minimal facts to show that the movant is not entitled to the recovery sought. See Rule 56(e). Moreover, "`a mere scintilla of evidence is not enough to create a fact issue; there must be evidence on which a jury might rely.'" Barwick, supra, 736 F.2d at 958-59 (quoting Seago v. North Carolina Theatres, Inc., 42 F.R.D. 627, 640 (E.D.N.C.1966), aff'd, 388 F.2d 987 (4th Cir.1967)). In the absence of such a minimal showing, a party moving for summary judgment should not be required to undergo the considerable expense of preparing for and participating in a trial. Bland v. Norfolk and Southern Railroad Company, 406 F.2d 863, 866 (4th Cir.1969).

In two recent cases, the Supreme Court has had an opportunity to clarify and expand the principles applicable to a trial court's consideration of a summary judgment motion filed under Rule 56. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In Anderson, the Supreme Court held that the standard for granting a summary judgment motion under Rule 56 is the same as that for granting a directed verdict under Rule 50, F.R.Civ.P. 477 U.S. at 250-51, 106 S.Ct. at 2511-12. The Court explained this standard as follows:

The judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. The mere existence of a

...