US v. 44133 Duchess Drive, Canton, Wayne County, Mich.
| Decision Date | 29 September 1994 |
| Docket Number | CIV. A. No. 91-70351. |
| Parties | UNITED STATES of America, Plaintiff, v. 44133 DUCHESS DRIVE, CANTON, WAYNE COUNTY, MICHIGAN, Together With All its Fixtures, Improvements, and Appurtenances, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
Saul Green U.S. Atty., Detroit, MI, for plaintiff.
Samuel H. Gun, Southfield, MI, for defendants John and Mary Mesko.
Daniel C. Watson, Troy, MI, for claimant Standard Federal.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
John and Mary Mesko, husband and wife, acquired certain real estate as their home, by warranty deed executed to them on November 16, 1976. The real property is located at 44134 Duchess Drive, in the Township of Canton, Wayne County, Michigan. The real property is more particularly described as:
Lot 93, Cavalier Village North, a subdivision as recorded in Liber 95, pages 77 and 78 of plats, Wayne County Records, in the Township of Canton, County of Wayne, State of Michigan.
Standard Federal Bank has an interest in the premises by virtue of a mortgage granted to it by John and Mary Mesko dated November 26, 1976 and recorded December 1, 1976 in Liber 19589, page 173 of Wayne County Records, on which there is a substantial unpaid balance owing.
On January 28, 1991, the government commenced this action by filing a complaint for forfeiture in rem of this real estate, together with all the fixtures, improvements, and appurtenances, under the provisions of 21 U.S.C. § 881(a)(3) and (a)(7). It was the claim of the government that the described real property, together with all its improvements, fixtures, and appurtenances, was subject to forfeiture under, first, 21 U.S.C. § 881(a)(3), as a container used or intended to be used to facilitate a violation of the controlled substance (i.e. narcotics) laws of the United States, and under, second, 21 U.S.C. § 881(a)(7), as real property used to commit or to facilitate the commission of a violation of such drug laws. John Mesko was arrested on December 20, 1990 on a charge of having on that date sold cocaine, and was subsequently convicted on that charge, and on that same date a search of the home of the Meskos was conducted under a search warrant, and narcotics and narcotics' paraphernalia were found and seized.
On February 15, 1991 John and Mary Mesko filed their answer to the government's complaint for forfeiture, which constituted, in effect, their claim to the property and they thereby became claimants in these forfeiture proceedings. They denied therein that the premises which are the subject of these forfeiture proceedings had ever been used or intended to be used to facilitate a violation of the drug laws.
On April 11, 1991 Mr. & Mrs. Mesko filed their formal "verified claim and notice of challenge" to these forfeiture proceedings.
On April 1, 1991 Standard Federal Bank filed its claim of interest to the premises.
On July 13, 1992 John and Mary Mesko stipulated to a severance of their respective claims from one another, and the court accordingly granted such a severance on July 16, 1992.
On January 24, 1992, the court entered a stipulated order holding that the forfeiture interest of the government was subject and subordinate to the mortgage lien in the real estate held by Standard Federal Bank, as aforesaid.
On May 11, 1993 the government filed its motion for summary judgment regarding the interest of John Mesko in the subject real estate.
Claimants John and Mary Mesko filed their response to the government's motion on June 1, 1993. Mary Mesko also requested summary judgment on her behalf as to her interest in the property. In their response, John and Mary Mesko conceded that John Mesko had been involved in trafficking in narcotics, and that during a search of the residence conducted on December 20, 1990 a quantity of cocaine and certain drug paraphernalia had been discovered. Four ounces of cocaine was discovered on that occasion concealed in an armoire in the master bedroom.
He further conceded, in his deposition taken October 19, 1992, that he had been engaged in such trafficking and had, on December 20, 1990, concealed a quantity of cocaine in an armoire in the parties' bedroom in the residence. Both he and his wife have steadfastly maintained, however, that the cocaine had been placed by him on the premises without Mrs. Mesko's knowledge.
As a result of his illegal activities, John Mesko pled guilty in state court to a charge of delivery of cocaine and was sentenced to serve a term of two and one-half years in state prison, which sentence he is currently serving. The plea of guilty was to a charge that he had sold cocaine to an undercover police officer on December 20, 1990, at a site other than the residence of the parties.
John Mesko, in his response to the government's summary judgment motion, stipulated to the forfeiture of his individual interest in the real estate and he and his wife agreed and conceded that his individual interest should indeed be forfeited under the provisions of 21 U.S.C. § 881(a)(7). John and Mary Mesko denied, however, that their home had been acquired with the proceeds of any drug dealing by John Mesko, and further asserted that Mary Mesko neither had any knowledge of the storage of narcotics and narcotics' paraphernalia in the home, nor had she consented to such use of the residence. The additional question, however, remains as to the exact nature of the individual interest of John Mesko in and to the real estate, and indeed whether any such individual interest exists on his part to be forfeited, and these issues must of necessity also be addressed and resolved in these proceedings.
On June 21, 1993, the court granted summary judgment to the government as to the individual interest of John Mesko only in the residence, thereby forfeiting whatever his individual interest therein may be.
The court denied the motion of Mary Mesko for summary judgment as to her claim, finding that there were genuine issues of material fact regarding her claim to the subject property.
Subsequently, on September 21, 1993, claimants John and Mary Mesko filed a pleading entitled "Claimants' Motion for Summary Judgment or, In The Alternative, Request for Evidentiary Hearing to Determine Whether Plaintiff's Complaint Against Defendant Property for Forfeiture In Rem Violates the Excessive Fines Clause of the Eighth Amendment."
The government then filed, on November 3, 1993, a "Renewed Motion for Summary Judgment and Opposing Claimants' Motion for Summary Judgment." Essentially, the government again asked for summary judgment since the issue of an excessive fine under the Eighth Amendment to the Constitution had not been raised by the parties or addressed in the earlier summary judgment proceedings.
The court treated, in its order of December 13, 1993, the motion filed by the claimants as a motion for reconsideration of the summary judgment previously entered on June 21, 1993 forfeiting the individual interest of John Mesko, and denying Mary Mesko's motion for summary judgment, and treated the government's renewed motion as a response to that motion. The court ruled, in its order of December 13, 1993, that the forfeiture of the individual interest of John Mesko did not constitute, under the doctrine of Austin v. United States, ___ U.S. ___, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), an excessive fine as forbidden by that ruling.
The court found that, in light of abundant evidence, from the admissions made by John Mesko, from the concession made by him in his response to the government's motion for summary judgment, and from his deposition testimony given in these proceedings, that he had stored narcotics and narcotics paraphernalia on the subject premises, that he had made arrangements for the sale of cocaine by receiving telephone calls at the residence, and that such activity had gone on for approximately two years and that he had made between $15,000 and $20,000 per year dealing in cocaine. Further, the search of the residence on December 20, 1992 revealed the following items:
In light of the above close relationship of the property to the offenses of John Mesko, in that he used the premises for the storage of narcotics and narcotics paraphernalia and to facilitate his business of drug dealing, a forfeiture of the property owned by John and Mary Mesko would not constitute an excessive forfeiture and fine under the doctrine of Austin v. United States, supra, and the court so ruled in its order of December 13, 1993. Thus, the court on December 13, 1993 restated and confirmed the earlier ruling that the individual interest of John Mesko in the property, whatever it is, be forfeited to the government. The court therefore reiterated its prior ruling forfeiting the individual interest of John Mesko and granting summary judgment to the government as to John...
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