US v. All Tract 686.64 Acres of Property, Civ. No. 91-111-ATH(DF).

• Decision Date: 27 April 1993
• Docket Number: Civ. No. 91-111-ATH(DF).
• Citation: 820 F. Supp. 1433
• Parties: UNITED STATES of America, Plaintiff, v. ALL TRACT 686.64 ACRES OF PROPERTY, MORE OR LESS, with All Appurtenances and Improvements Thereon, Titled in the Name of George Walter Paul, Jr., and More Fully Described in the Deed Book 7V, Page 332 and Deed Book 7V, Page 334, All Located in the Property Records of Oglethorpe County, Georgia, Defendant.
• Court: U.S. District Court — Middle District of Georgia

820 F. Supp. 1433

UNITED STATES of America, Plaintiff, v. ALL TRACT 686.64 ACRES OF PROPERTY, MORE OR LESS, with All Appurtenances and Improvements Thereon, Titled in the Name of George Walter Paul, Jr., and More Fully Described in the Deed Book 7V, Page 332 and Deed Book 7V, Page 334, All Located in the Property Records of Oglethorpe County, Georgia, Defendant.

Civ. No. 91-111-ATH(DF).

United States District Court, M.D. Georgia, Athens Division.

April 27, 1993.

Charles E. Cox, Jr., William David Gifford, Macon, GA, for plaintiff.

James E. Hudson, Athens, GA, E. Freeman Leverett, Elberton, GA, for defendant.

FITZPATRICK, District Judge.

This action is brought in rem to enforce the provision of 21 U.S.C. § 881(a)(7) for the forfeiture of real property. Defendant's motion for judgment on the pleadings, summary judgment and partial summary judgment is presently pending before the Court.

BACKGROUND

I. MARIJUANA

Defendant is a parcel of property located in Oglethorpe County, Georgia. In April of 1991, the Georgia Bureau of Investigation ("GBI") received information that a large scale marijuana operation was being operated on the 686.64 acres owned by Claimant George Walter Paul, Jr. (Affidavit of Chuck McClure.) James Donald Key told the GBI about the presence of the marijuana after he discovered it while hunting on claimant's property without permission.¹ (Key Deposition, pp. 7, 8, 10.)

On one occasion in October of 1990, Key was hunting without permission on Paul's property when Paul drove by in his truck. Paul stopped his truck and gazed for a minute or so up into the woods where Key sat hidden in his hunting fatigues. (Key Deposition, pp. 13, 14.) Key thought he was about to be "chewed out" by Paul for trespassing since Paul was staring directly at him. (Key Deposition, p. 14.) Paul, however, drove off in his truck without confronting him. (Id.) In November 1990, Key was again hunting on Paul's property without permission when he discovered old dry stalks of marijuana in close proximity to where he had sat hidden one month earlier as Paul conducted his surveillance of the estate. (Id. at 11.) Key recalled the area because there was a single strand of barbed wire surrounding the harvested patch. (Id. at 12.) Key also found an empty fertilizer bag near the marijuana patch.

Approximately four months later, in late March or early April 1991, Key was again trespassing when he discovered a large, freshly planted marijuana crop in the same area where the he discovered the old marijuana stalks. (Id. at 18, 19.) A few days later Key and his friend, Edward Frachiseur, were hunting on the Paul estate, again without permission. Key showed Frachiseur the area where the marijuana was planted. (Id. at 48, 49.) The area, which is commonly referred to as the "Mule Pasture" and also known as the "Powers place," had been cleared of brush and trees, apparently with a chain saw. (McClure Affidavit.) Timber was stacked in piles at the edge of the marijuana field.

On April 18, 1991, Key led three GBI agents to the Mule Pasture. The four parked their vehicle on property that Key leased nearby and walked, during the day-light hours, onto Paul's property. The next day two agents returned to the Mule Pasture to set up surveillance equipment but a thunderstorm forced them to retreat. (McClure Affidavit.)

On April 22, 1991, two GBI agents returned to the Mule Pasture to take photographs and conduct surveillance. They left after approximately five hours but returned later that afternoon. (McClure Affidavit.) At approximately 4:30 p.m., while returning to the Mule Pasture area, the agents encountered local resident, William Collins. The agents, who were dressed in camouflage and armed with semi-automatic pistols, pretended to be turkey hunters and asked Mr. Collins if he had seen any turkeys in the area.

After the agents began conducting surveillance on the Mule Pasture for the second time that day, Paul slowly drove by the pasture immediately in front of the marijuana. The agents observed Paul peering intently onto the area where the newly sprouting crop of marijuana was planted. (McClure Affidavit.) The agents assumed Paul did not detect their presence. The next day, April 23, however, Paul called the local game warden to report finding a field of marijuana planted on his property.

Unbeknownst to the GBI agents, there was a second newly cultivated marijuana field on the Paul Estate located in what is commonly referred to as the "East Pasture" (Aaron Huff place). (McClure Affidavit.) Paul testified that he discovered the marijuana plants while taking a shortcut back to his truck from a pasture where he had been looking to see if any cows or calves remained after he relocated them to another area. (Paul Deposition, pp. 68-70.)

On April 23, 1991, the GBI pulled and eradicated 14,036 marijuana plants located in the East Pasture. The GBI continued to watch the Mule Pasture field for approximately three weeks. (McClure Affidavit.) During this time, Paul was never observed peering into the Mule Pasture as he had done on previous occasions.

On May 15, 1991, GBI undercover agents, with the assistance of local law enforcement, pulled and eradicated 30,346 marijuana plants located in the Mule Pasture. Thus, a total of 44,382 plants were discovered on claimant's property. Claimant's property was seized on August 15, 1991.

II. HISTORY OF PROPERTY

Claimant Paul inherited the defendant 686.64 acres through the last will and testament of his father, George Paul, Sr. The will states:

to my son George W. Paul, Jr., in fee simple all of the remaining property that consists of my cattle, farm machinery and my farm land.... Said farm land to consist of the following tracts of land:

(a) 95.61 acres known as the Eberhardt place being by a deed dated March 10, 1958, recorded in Deed Book 3-T, page 499, Oglethorpe County, Georgia.

(b) 23,20 acres known as the James Maxwell place being described by a deed dated February 1, 1964, and recorded in Deed Book 5-S, page 656, Oglethorpe County, Georgia Records.

(c) 71 acres known as the Aaron Huff place being described by deed dated May 2, 1939, recorded in Deed Book DDD, page 429, Oglethorpe County, Georgia Records.

(d) 81 acres known as Will Tom Patman Place also known as the Boles Place, being located in the 229th District, G.M., recorded in Deed Book 5-8, Page 624, Oglethorpe County, Georgia.

(e) 13.01 acres known as the Mrs. C.L. Harrison place being described by a deed dated April 12, 1955, and recorded in Deed Book 5-S, page 657, Oglethorpe County, Georgia records.

(f) 120 acres known as the Powers Place described by a deed dated June 11, 1943, and recorded in Deed Book HHH, page 103, Oglethorpe County, Georgia records.

(g) 81.57 acres known as the S.L. Maxwell place described by a deed dated August 23, 1941, and recorded in Deed Book 5-S, page 655, Oglethorpe County, Georgia Records, and being all the property remaining from a tract originally containing 157.23 acres.

(h) 51 acres known as the Will Patman place described by deed dated December 16, 1929, recorded in Deed Book YY, page 191, Oglethorpe County, Georgia Records.

(i) 51 acres known as the Sally Patman Place described by a deed dated March 30, 1945, and recorded in Deed Book III, page 479, Oglethorpe County, Georgia Records.

The testamentary devise to Paul was confirmed through two "deed of assent," also called "assents to devise." One is dated May 18, 1990, and the other is dated September 13, 1990. Rosa Paul Neesmith, claimant's sister and co-executor of the will, relinquished any right or claim she may have had to her father's estate as the only other surviving child of George Paul, Sr., by these deeds of assent.

The May 18 Deed of Assent vested title to the Eberhardt place, i.e., "(a)" in the will. The September 13 Deed of Assent passed title to the tracts described in (b) through (i) in the will. Parcels "c" and "f", which appear above in boldface, are the two parcels where the marijuana was cultivated.

Both deeds of assent state: "... this assent is made under the provisions of O.C.G.A. § 53-2-108, et seq., to pass title to the devisee named in said will, to-wit, George W. Paul, Jr."²

An aerial tax map used by Carl Bryan of the Oglethorpe Tax Assessor's Office indicates that several of the former "tracts" on the Paul Estate have been lumped together. The tax map shows that the "old" tracts number 19, 20, 21, 24 and 25 are now a single tract consisting of 410 acres. This 410 acre tract excludes the 81.57 acres formerly known as the S.L. Maxwell place, and the 195 acres formerly known as the Eberhardt place. The latter two acreages added to the 410 acres totals 686.

DISCUSSION

Claimant seeks complete summary judgment on the ground that he is an innocent landowner pursuant to 21 U.S.C. 881(a)(7). He also seeks partial summary judgment on seven of the nine tracts on the ground that they were not involved in the marijuana growing. Finally, Claimant seeks judgment on the pleadings for violations of his fifth and eighth and fourteenth amendment rights.

I. MOTION FOR JUDGMENT ON THE PLEADINGS

A. Due Process Violation

Claimant argues that section 881 violates due process because the section's and the Supplemental Rules for Certain Admiralty and Maritime Claims' seizure and title vesting procedures do not require pre-seizure notice or hearing and because the statute improperly shifts the burden of proof in violation of the due process clause.³

1. Pre-Seizure Notice and Hearing

Claimant contends that these forfeiture proceedings violate procedural due process because pre-seizure notice was not provided. The Eleventh Circuit expressly rejected this argument in United States v. A Single Family Residence, 803 F.2d 625 (11th Cir.1986), characterizing the appellant's argument as "patently frivolous," Id. at 632, in light of "decisive Supreme Court authority to the contrary." Id.

Claimant, however, notes that in United States v....