US v. 9844 S. TITAN COURT, UNIT 9, LITTLETON

• Decision Date: 27 April 1994
• Docket Number: Civ. A. No. 92-F-1365.
• Citation: 865 F. Supp. 709
• Court: U.S. District Court — District of Colorado
• Parties: UNITED STATES of America, Plaintiff, v. 9844 SOUTH TITAN COURT, UNIT 9, LITTLETON, COLORADO, with All Improvements, Appurtenances, Fixtures, and Attachments Thereon, and the Rents, Profits, and Proceeds Therefrom; 9844 South Titan Court, Unit 10, Littleton, Colorado, with All Improvements, Appurtenances, Fixtures, and Attachments Thereon, and the Rents, Profits, and Proceeds Therefrom; 1277 South Memphis Street, Aurora, Colorado, with All Improvements, Appurtenances, Fixtures, and Attachments Thereon, and the Rents, Profits, and Proceeds Therefrom; $2,800 Seized From 1277 South Memphis Street, Aurora, Colorado; and $13,050 Seized From Lisa M. Tarasuik, Incident to Her Arrest at No Frills Bar & Grill, Defendants. [Claimants: Philip May and Frances May].

865 F. Supp. 709

UNITED STATES of America, Plaintiff, v. 9844 SOUTH TITAN COURT, UNIT 9, LITTLETON, COLORADO, with All Improvements, Appurtenances, Fixtures, and Attachments Thereon, and the Rents, Profits, and Proceeds Therefrom; 9844 South Titan Court, Unit 10, Littleton, Colorado, with All Improvements, Appurtenances, Fixtures, and Attachments Thereon, and the Rents, Profits, and Proceeds Therefrom; 1277 South Memphis Street, Aurora, Colorado, with All Improvements, Appurtenances, Fixtures, and Attachments Thereon, and the Rents, Profits, and Proceeds Therefrom; $2,800 Seized From 1277 South Memphis Street, Aurora, Colorado; and $13,050 Seized From Lisa M. Tarasuik, Incident to Her Arrest at No Frills Bar & Grill, Defendants Claimants: Philip May and Frances May.

Civ. A. No. 92-F-1365.

United States District Court, D. Colorado.

April 27, 1994.

COPYRIGHT MATERIAL OMITTED

Robert Clark, Mark S. Pestal, Asst. U.S. Attys., Denver, CO, for government.

Brenda Grantland, Mill Valley, CA, Leonard Berenato, Denver, CO, for defendants.

ORDER REGARDING CROSS MOTIONS FOR SUMMARY JUDGMENT

SHERMAN G. FINESILVER, Chief Judge.

This matter comes before the Court on the Parties' Cross Motions For Summary Judgment. Jurisdiction is based on 28 U.S.C.A. § 1331. The litigants have fully briefed the matter. For the reasons stated below, the United States' Motion For Summary Judgment is GRANTED and Claimant Frances May's Motion For Summary Judgment is DENIED.

I. Background¹

This is a civil forfeiture action in rem brought to enforce the provisions of 21 U.S.C. § 881. On July 8, 1992, the United States filed its Verified Complaint In Rem against the Defendant property based on the above statute. On March 16, 1994, the Court granted the United States' motion to dismiss several of the defendant properties and certain claims grounded upon § 881(a)(6). The remaining real properties and currency sought to be forfeited by the United States are listed below along with the statutory grounds therefor:

(1) 9844 South Titan Court, Units 9 and 10 (the "Titan Property" or "Units 9 and 10") — 21 U.S.C. § 881(a)(7);

(2) 1277 South Memphis Street (the "Residence") — 21 U.S.C. § 881(a)(7).

(3) $13,050 in U.S. Currency — 21 U.S.C. § 881(a)(6); and

(4) $2,800 in U.S. Currency — 21 U.S.C. § 881(a)(6).

The United States has complied with all applicable procedures and rules pertaining to the arrest of the property and notice to interested parties. Following the filing of the Verified Complaint, an Order for Arrest of the Property In Rem was entered on July 8, 1992. The United States Marshals Service executed a Warrant for Arrest of Property In Rem on July 8, 1992. Pursuant to this Court's Order for Arrest of Property In Rem, the United States Marshals Service published notice of the arrest of the defendant property in a newspaper of general circulation.

Following arrest of the property and monies, the following individuals filed claims and amended claims and answers to the complaint: Philip May, Frances May, Eric May; each of these claimants also filed as a officer and stockholder of Door and Trim Systems, Inc., and Frances May filed a claim as legal guardian of the minor children Angela and Jeffrey May. The real property is titled in the names of either Philip and/or Frances May and not in the corporation's name.

The facts supporting forfeiture of these properties and monies arise out of Philip May's conviction for events occurring on or about October 29, 1991, at the No Frills Bar and Grill in Aurora, Colorado. Mr. May was arrested along with Lisa Tarasuik on the evening of October 29, 1991, after Ms. Tarasuik attempted to purchase over 500 grams of cocaine from an undercover Denver police detective. Mr. May conspired with Ms. Tarasuik to purchase the cocaine and was arrested in his vehicle where he was providing protection to Ms. Tarasuik. At the time of his arrest, Mr. May held a loaded .45 caliber semi-automatic pistol. Ms. Tarasuik was arrested nearby with $13,050 of U.S. currency in her possession which she had showed the police detective in order to consummate the cocaine purchase. Minutes earlier, Mr. May had given her money that he had placed in his vehicle prior to leaving the Residence.

Following Mr. May's and Ms. Tarasuik's arrest, consent searches were conducted in the early hours of October 30, 1991 at the Titan Property, the Residence, and Ms. Tarasuik's apartment. Cocaine was found at each location. Approximately 55 grams were found in the Titan Property, and 165 grams were found in the Residence. The defendant $2,800 was found in the Residence along with several weapons. A triple-beam scale and cocaine grinder were also found at the Titan Property.

Mr. May was subsequently convicted by a jury on four counts and sentenced to 60 months in prison for his involvement in the conspiracy and for the possession of cocaine.

II. Summary Judgment Standard

Granting summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. FED. R.CIV.P. 56(c); Raymond v. Mobil Oil Corp., 983 F.2d 1528, 1534 (10th Cir.1993); Ash Creek Mining Co. v. Lujan, 934 F.2d 240, 242 (10th Cir.1991); Metz v. United States, 933 F.2d 802, 804 (10th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 416, 116 L.Ed.2d 436 (1991); Continental Casualty Co. v. P.D.C., Inc., 931 F.2d 1429, 1430 (10th Cir.1991). A genuine issue of material fact exists only where "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Merrick v. Northern Natural Gas Co., 911 F.2d 426, 429 (10th Cir.1990). Only disputes over facts that might affect the outcome of the case will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Fostvedt v. United States, I.R.S., 824 F.Supp. 978, 982 (D.Colo. 1993).

In reviewing a motion for summary judgment, the court must view the evidence in the light most favorable to the party opposing the motion. Concrete Works v. City and County of Denver, 823 F.Supp. 821, 828 (D.Colo.1993). All doubts must be resolved in favor of the existence of triable issues of fact. Boren v. Southwestern Bell Tel. Co., 933 F.2d 891, 892 (10th Cir.1991); Mountain Fuel Supply v. Reliance Ins. Co., 933 F.2d 882, 889 (10th Cir.1991).

In a motion for summary judgment, the moving party's initial burden is slight. In Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2554-55, 91 L.Ed.2d 265 (1986), the Supreme Court held that the language of rule 56(c) does not require the moving party to show an absence of issues of material fact in order to be awarded summary judgment. Rule 56 does not require the movant to negate the opponent's claim. Id. at 323, 106 S.Ct. at 2552-53. The moving party must allege an absence of evidence to support the opposing party's case and identify supporting portions of the record. Id.

Once the movant has made an initial showing, the burden of going forward shifts to the opposing party. The nonmovant must establish that there are issues of material fact to be determined. Id. at 322-23, 106 S.Ct. at 2552-53. The nonmovant must go beyond the pleadings and designate specific facts showing genuine issues for trial on every element challenged by the motion. Tillett v. Lujan, 931 F.2d 636, 639 (10th Cir. 1991). Conclusory allegations will not establish issues of fact sufficient to defeat summary judgment. McVay v. Western Plains Serv. Corp., 823 F.2d 1395, 1398 (10th Cir. 1987).

In reviewing the evidence submitted, the court should grant summary judgment only when there is clearly no issue of material fact remaining. In Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11, the Court held that summary judgment should be granted if the pretrial evidence is merely colorable or is not significantly probative. In Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), the Court held that summary judgment is appropriate when the trial judge can conclude that no reasonable trier of fact could find for the nonmovant on the basis of evidence presented in the motion and the response. Id. at 587, 106 S.Ct. at 1356.

III. Motions For Summary Judgment

A. Standards

The United States argues that the facts clearly provide probable cause to support forfeiture by summary judgment absent a claimant's affirmative defense provable by a preponderance of the evidence. Claimants assert several claims which would not allow forfeiture of the various properties. Each property will be addressed in separate sections below.

In order for the United States to forfeit property under 21 U.S.C. § 881 it bears the initial burden of showing probable cause that the property to be forfeited was used illegally. United States v. $149,442.43 in U.S. Currency, 965 F.2d 868, 876 (10th Cir.1992); United States v. 1979 Mercury Cougar, 545 F.Supp. 1087 (D.Colo.1982); United States v. $250,000 in U.S. Currency, 808 F.2d 895, 897 (1st Cir.1987). By issuing the warrant for arrest of the defendant property, the Court has already made the determination that probable cause existed to show that the Defendant property is forfeitable. "Once probable cause has been established, the claimant bears the burden of proving that the requested forfeiture does not fall within the four corners of the statute." United States v. $250,000 in U.S. Currency, 808 F.2d at 897; United States v. $3,799.00 In U.S. Currency, 684 F.2d 674, 678 (10th Cir.1982). Failure to rebut the showing of probable cause will support entry of judgment of forfeiture.

The probable cause standard is met where the government shows "a reasonable ground for belief of guilt supported by less than prima facie proof, but more than a mere suspicion." United States v. $250,000 in U.S. Currency, 808 F.2d at 897. Probable cause for forfeiture consists merely of a reasonable basis for...