US v. 92 BUENA VISTA AVE., RUMSON, NJ

• Decision Date: 01 June 1990
• Docket Number: Civ. A. No. 89-1411.
• Citation: 738 F. Supp. 854
• Parties: UNITED STATES of America, Plaintiff, v. A PARCEL OF LAND, BUILDINGS, APPURTENANCES, AND IMPROVEMENTS, KNOWN AS 92 BUENA VISTA AVE., RUMSON, NEW JERSEY, Defendant.
• Court: U.S. District Court — District of New Jersey

738 F. Supp. 854

UNITED STATES of America, Plaintiff, v. A PARCEL OF LAND, BUILDINGS, APPURTENANCES, AND IMPROVEMENTS, KNOWN AS 92 BUENA VISTA AVE., RUMSON, NEW JERSEY, Defendant.

Civ. A. No. 89-1411.

United States District Court, D. New Jersey.

June 1, 1990.

COPYRIGHT MATERIAL OMITTED

Neil R. Gallagher, Asst. U.S. Atty., Newark, N.J., for plaintiff.

James A. Plaisted, Walder, Sondak, Berkeley & Brogan, Roseland, N.J., for claimant.

OPINION

HAROLD A. ACKERMAN, District Judge.

The United States of America brings this action for the civil forfeiture of real property pursuant to 21 U.S.C. § 881. The property in question is a Parcel of Land, Buildings, Appurtenances and Improvements, known as 92 Buena Vista Avenue, Rumson, New Jersey (hereinafter the "premises"). The action was commenced by the filing of a Verified Complaint in April, 1989, which was immediately followed by a seizure of the premises. On June 15, 1989, Ms. Beth Ann Goodwin filed an Answer and Claim against the property.

Presently before the Court is a motion by the claimant, Ms. Goodwin, to dismiss the complaint, for summary judgment, and to compel discovery. Her motion for dismissal of the complaint is based upon the grounds that (1) the seizure of her home was unconstitutional, because there was no probable cause and no preseizure hearing; (2) the property is not subject to forfeiture, because Ms. Goodwin is an "innocent owner"; (3) the Verified Complaint was based, at least in part, on immunized testimony; (4) the government unduly delayed in the seizure and/or is barred by the statute of limitations; and (5) the government's refusal to engage in discovery justifies dismissal of this action. The government has opposed the claimant's motion on all grounds and has cross-moved for a stay on discovery and/or a stay of this action. I shall first address the arguments raised by the claimant, because a finding that this action should be dismissed would obviate the need to consider the government's motion for a stay. On the other hand, a finding that the government is entitled to a stay may only postpone (and not obviate) the need to consider the claimant's arguments in support of her motion, and I think the fairest approach is to consider claimant's arguments first.

I. Constitutionality of the Seizure

The premises in question were seized after the complaint, verified by Special Agent Richard Giacobbe of the Drug Enforcement Administration, ("DEA"), was reviewed by this Court and a finding was made that probable cause existed for the seizure. The claimant asserts that the "seizure should be dissolved," because it was effected in violation of the United States Constitution since there was no probable cause for the seizure and no preseizure hearing. The parties have pointed out that there is no binding precedent to guide this Court on the issue of whether preseizure notice and a hearing are constitutionally required before a home is seized under 21 U.S.C. § 881, and further, that the Second and Eleventh Circuits have split on the issue. See United States v. Property at 4492 S. Livonia Road, Livonia, New York, 889 F.2d 1258, 1265 (2d Cir.1989), reh'g denied, 897 F.2d 659 (2d Cir.1990) (preseizure notice and hearing required), and United States v. A Single Family Residence and Real Property Located at 900 Rio Vista Blvd., Ft. Lauderdale, Fl., 803 F.2d 625, 632 (11th Cir.1986) (no preseizure notice or hearing required).

However, there is no need for me to address this constitutional issue. "Various circuit courts have held that the illegal seizure of property, standing alone, will not immunize that property from forfeiture, so long as impermissibly obtained evidence is not used in the forfeiture proceeding." Real Property Located at 4492 S. Livonia Rd., supra, at 1265 (citations omitted); see also Application of Kingsley, 802 F.2d 571, 578-579 & n. 9 (1st Cir.1986). Where an unconstitutional seizure occurs, the victim can bring a damages action against the offending officer "should he be able to show that the warrantless seizure was effected in bad faith and caused personal damage", United States v. One 1978 Mercedes Benz, Four-Door Sedan, 711 F.2d 1297, 1303 & n. 7 (5th Cir.1983), but it provides no basis for dismissing an action where the government demonstrates entitlement to forfeiture based upon permissible evidence. See id. at 1303; see also United States v. One 1975 Pontiac Lemans, Etc., 621 F.2d 444, 450-51 (1st Cir. 1980) (same). I find that the instant complaint should not be dismissed, because the government has established, by permissible evidence, that probable cause exists to subject the premises to forfeiture.

Pursuant to the forfeiture statute at hand, all proceeds traceable to drug transactions are subject to forfeiture. 21 U.S.C. § 881(a)(6). In determining whether proceeds are so traceable, "there is no need to tie the property to proceeds of a particular identifiable illicit drug transaction." United States v. 1982 Yukon Delta Houseboat, 774 F.2d 1432, 1435 & n. 4 (9th Cir.1985) (emphasis in original). In addition, the government is only required to demonstrate that probable cause exists for property to be subject to forfeiture under 21 U.S.C. § 881. United States v. Property Known as 6109 Grubb Road, 886 F.2d 618, 621 (3d Cir.1989), reh'g denied, 890 F.2d 659, (3d Cir.1989). The burden then shifts to the claimant to show, by a preponderance of the evidence, that the property is not forfeitable. See 19 U.S.C. § 1615. See also United States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 195-6 (3d Cir.1983); United States v. One 56-Foot Yacht Named Tahuna, 702 F.2d 1276, 1281 (9th Cir.1983).

In assessing whether the government has sustained its burden of showing probable cause, inadmissible hearsay may be considered. United States v. Miscellaneous Jewelry, 667 F.Supp. 232, 238 (D.Md. 1987), aff'd, 889 F.2d 1317 (4th Cir.1989); United States v. Yacht Named Tahuna, supra, at 1283. In addition, probable cause merely requires that the available facts would "warrant a man of reasonable caution in the belief" that the property is subject to forfeiture; "it does not demand any showing that such a belief be correct or more likely true or false." Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983) (Rehnquist, J., plurality) (citations omitted); see also United States v. Rickus, 737 F.2d 360, 367 (3d Cir.1984) ("probable cause deals with probabilities, not certainties"). In making a probable cause determination, the totality of the circumstances are considered. See Rickus, supra, at 367. "All that is required is that a court be able to look at the `aggregate' of the facts and find reasonable grounds to believe that the property probably was derived from drug transactions." United States v. Parcels of Land, 903 F.2d 36 (1st Cir.1990).

I find that the government has demonstrated that probable cause exists to believe that the premises are traceable to drug transactions. On or about April 13, 1990, a Grand Jury sitting in the Southern District of Florida returned an indictment against Joseph A. Brenna, among others, for violations of 21 U.S.C. §§ 848 and 853 and for forfeiture of the property in question. See Affidavit of Neil R. Gallagher, Esq., filed May 4, 1990, ("Gallagher Aff. II"), and Exhibit A. The probable cause to indict Mr. Brenna for the drug offenses was derived independent of any information from the claimant, since the claimant disclaims any knowledge of Mr. Brenna's involvement in drug transactions. See infra, Section II. In addition, apart from the indictment, probable cause is established. In the Verified Complaint, DEA Agent Giacobbe attests that, to his knowledge, the following facts, among others, are true: (1) that the premises in question were purchased by Ms. Goodwin with funds provided by Joseph A. Brenna; (2) that Mr. Brenna had been involved in a scheme to import marijuana into the United States from Columbia during the years 1982 through 1986; (3) that Mr. Brenna obtained $216,000.00 for the purchase of the premises from criminal acts involving importation, possession and distribution of controlled dangerous substances; (4) that on September 29, 1988, Mr. Brenna pled guilty to violating 31 U.S.C. § 5322 and 18 U.S.C. § 2 for failure to file a currency report for the transfer of $225,000, part of which was used to purchase the premises; and (5) that in December, 1986, Mr. Brenna paid $30,000.00 to a crew member smuggling marijuana in the premises. See Verified Complaint, ¶¶ 5-19. In addition, Mr. Giacobbe obtained information from a Mr. Joseph Mazacco, an individual cooperating with the government on a plea agreement, that Brenna used drug money to purchase the premises. See deposition of Mr. Giacobbe, taken June 27, 1989, at 75, 78-79, 143, (annexed as Exhibit A to Affidavit of James A. Plaisted, filed Sept. 1, 1989, "Plaisted Aff.").

In addition, Ms. Goodwin states in her verified petition that she lived with Joseph Brenna from approximately 1981 through 1987; that she maintained an intimate personal relationship with him during that time; and that he supported her and her children. See Verified Petition of Beth A. Goodwin, May 19, 1989, ("Goodwin Pet."), ¶ 1, annexed to Plaisted Aff. as Exhibit C. She further states that Mr. Brenna made a gift to her of the proceeds used to purchase the premises. Id., ¶¶ 3, 8. As attested to by Agent Giacobbe in his deposition, an Internal Revenue Service Investigation revealed that Ms. Goodwin had no visible means of support from 1980 through at least 1985. See Giacobbe dep. at 85; see also Verified Complaint, ¶ 9. Neither she nor Mr. Brenna filed income tax returns for the years 1978 through 1985. See Certificates of Non-Record, annexed as Exhibits A and B to Neil R. Gallagher Aff., filed Oct. 5, 1989, ("Gallagher Aff. I"). Ms. Goodwin explains her failure to file tax returns by stating that she has not been shown to have had any income other...