US v. Certain Lots in Virginia Beach

• Decision Date: 03 April 1987
• Docket Number: Civ. A. No. 86-369-N.
• Citation: 657 F. Supp. 1062
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America, Plaintiff, v. All Those CERTAIN LOTS, Pieces or Parcels of Land, with the Buildings and Improvements Thereon and the Appurtenances Thereunto Belonging, Lying, Situate and Being IN the CITY OF VIRGINIA BEACH, VIRGINIA, and Being KNOWN, Numbered and Designated AS LOTS EIGHTEEN (18) AND NINETEEN (19), IN BLOCK THREE (3), as Shown on That Certain Plat Entitled "Pinewood", and Said Plat Being Duly Recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 7, at Page 132. It being the Same Property Conveyed to the Grantor Herein By Deed of Henry J. Reed, Jr. and Lyn H. Reed, Husband and Wife, Dated the 30th Day of May, 1979, and Duly Recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Deed Book 1910 at Page 179, and more Particularly Described as 501 Lake Drive, Virginia Beach, Virginia, Defendant.

657 F. Supp. 1062

UNITED STATES of America, Plaintiff, v. All Those CERTAIN LOTS, Pieces or Parcels of Land, with the Buildings and Improvements Thereon and the Appurtenances Thereunto Belonging, Lying, Situate and Being IN the CITY OF VIRGINIA BEACH, VIRGINIA, and Being KNOWN, Numbered and Designated AS LOTS EIGHTEEN (18) AND NINETEEN (19), IN BLOCK THREE (3), as Shown on That Certain Plat Entitled "Pinewood", and Said Plat Being Duly Recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 7, at Page 132. It being the Same Property Conveyed to the Grantor Herein By Deed of Henry J. Reed, Jr. and Lyn H. Reed, Husband and Wife, Dated the 30th Day of May, 1979, and Duly Recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Deed Book 1910 at Page 179, and more Particularly Described as 501 Lake Drive, Virginia Beach, Virginia, Defendant.

Civ. A. No. 86-369-N.

United States District Court, E.D. Virginia, Norfolk Division.

April 3, 1987.

Larry W. Shelton, Asst. U.S. Atty., Norfolk, Va., for U.S.

Judi Cole, pro se.

Ray W. King, Jane Tucker, Vandeventer, Black, Meredith & Martin, Norfolk, Va., for Life Federal Sav. and Loan Ass'n.

William S. Sands, Jr., White, Johnson & Lawrence, Norfolk, Va., guardian ad litem for Marcus Cole.

ORDER

DOUMAR, District Judge.

This is a civil forfeiture action brought by the United States of America under 21 U.S.C. § 881, arising from the conviction for drug possession of Marcus A. Cole, owner of the property which is the subject of this suit.

Marcus Cole, his wife, Judi Cole, and the Life Federal Savings and Loan Association, lienholder on the subject property, have filed claims asserting an interest in the property. Claimants Marcus and Judi Cole also have asserted a counterclaim against the government for alleged violations of their constitutional rights. Because Mr. Cole has been incarcerated throughout these proceedings, he has been represented by a guardian ad litem, appointed by the Court in conformity with Va.Code § 8.01-9.

This matter comes before the Court on cross-motions for summary judgment of the government and claimant Marcus Cole. For the reasons stated, the motion for summary judgment of claimant Marcus Cole is GRANTED with respect to the complaint and DENIED with respect to the counterclaim. The government's motion for summary judgment is GRANTED as to the claimants' counterclaim, and in all other respects is DENIED.

I. FACTUAL BACKGROUND

The facts in this case are simple and uncontroverted. On June 7, 1985, Charles Lapan, an informant working for the Drug Enforcement Agency (DEA), contacted Cole concerning the possible sale of twelve ounces of cocaine to acquaintances of Lapan. Unknown to Cole, these "acquaintances" were undercover agents of the DEA and Norfolk Police Department. Cole agreed to the sale. Lapan then asked to meet at Cole's house to conclude the transaction. Cole at first refused, but, upon Lapan's insistence, agreed. At about 6:30 p.m. that same day, Lapan arrived at Cole's house, where Cole showed him the cocaine, and packaged it at Lapan's request. Cole informed Lapan that he had just picked up the cocaine on his way from work. Lapan then left the residence, returning in about an hour to pick up the cocaine. Lapan and Cole then left the house.

On the way to the Norfolk Airport, where the proposed deal was to take place, Lapan and Cole stopped at a Seven-Eleven convenience store, where Cole was arrested. A subsequent search of Cole's house revealed no cocaine.

On September 12, 1985, Cole pled guilty to a one-count superseding information charging that on or about June 12, 1985, he unlawfully possessed with intent to distribute twelve ounces of cocaine, in violation of 21 U.S.C. § 841(a)(1). Subsequently, on May 29, 1986, the United States Attorney for the Eastern District of Virginia initiated forfeiture proceedings against Cole's house and real property pursuant to 21 U.S.C. § 881(a)(7). Cross-motions for summary judgment were then filed.

Following a hearing on the summary judgment motions on January 15, 1987, this Court noted that it would take the motions under advisement, but indicated that both parties should prepare for trial. Seeking to avoid the expense of a trial, the government requested a second hearing. At that time, the government conceded that it could prove only the one transaction on June 7, 1985, and that that single transaction was the only connection between the property sought to be forfeited and any criminal or drug-related activity. The government further acknowledged that there was no dispute as to any material fact before the Court.

II. THE LEGAL STANDARD

21 U.S.C. § 881(a)(7) subjects to forfeiture "all real property ... which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this title punishable by more than one year's imprisonment." Cole claims that his house was not "used ... to facilitate" the crime under the terms of the statute because there was not a substantial connection between the use of his house and the commission of the crime.

Courts have not determined what constitutes facilitation under § 881(a)(7), the provision at issue in this case. However, courts have interpreted a similar provision of the civil forfeiture statute. 21 U.S.C. § 881(a)(4) provides that "aircraft, vehicles, or vessels, which are used ... in any manner to facilitate the transportation, sale, receipt, possession, or concealment of controlled substances" may be subject to forfeiture. Many circuits have held that in order for property to be forfeited under this section, there must be a "substantial connection" between the property and the underlying criminal activity. See United States v. One 1972 Chevrolet Corvette, 625 F.2d 1026, 1029 (1st Cir.1980). See also United States v. One 1976 Ford F-150 Pick-Up VIN Fl4YUB03797, 769 F.2d 525, 527 (8th Cir.1985) ("substantial association" necessary); United States v. One 1979 Porsche Coupe, 709 F.2d 1424, 1426 (11th Cir.1983). Other circuits have explicitly rejected any requirement of a substantial connection, holding instead that use of property "in any manner" in connection with an illegal drug transaction is sufficient to justify forfeiture. See United States v. 1964 Beechcraft Baron Aircraft, 691 F.2d 725 (5th Cir.1982), cert. denied, 461 U.S. 914, 103 S.Ct. 1893, 77 L.Ed.2d 283 (1983); United States v. One 1974 Cadillac Eldorado Sedan, 548 F.2d 421, 423 (2d Cir.1977).

Although there is a split of authority as to whether a substantial connection is required, the Fourth Circuit seems to have adopted the substantial connection standard. In United States v. 1966 Beechcraft Aircraft Model King Air, 777 F.2d 947 (4th Cir.1985), a case not cited by any party, the Fourth Circuit considered whether a vehicle used to transport a drug conspirator to the scene of the crime was subject to forfeiture. The court explained that "in resolving this dispute, the legislative history instructs that `it is the intent of these provisions that property would be forfeited only if there is a substantial connection between the property and the underlying criminal activity.'" Id. at 953 (citation omitted). Noting that the private airplane is an "important tool of the drug trafficker," id., the court found that "the use of an airplane ... to transport conspirators to an exchange site, establishes a `substantial connection' between the conveyance and the criminal activity." Id.

The provision applied in 1966 Beechcraft is essentially identical to the provision at issue in this case. Therefore, this Circuit seems to require a substantial connection before imposing a forfeiture.

Application of the substantial connection requirement comports with the legislative history of § 881(a)(7). The statute was passed for the sole purpose of closing a loophole in the civil forfeiture laws: the inability of the government to reach real property in forfeiture proceedings. The Senate Report on the proposed Comprehensive Crime Control Act of 1984 makes clear the purpose of the forfeiture provision.

Under current law, if a person uses a boat or car to transport narcotics or uses equipment to manufacture dangerous drugs, his use of the property renders it subject to civil forfeiture. But if he uses a secluded barn to store tons of marihuana or uses his house as a manufacturing laboratory for amphetamines, there is no provision to subject his real property to civil forfeiture, even though its use was indispensable to the commission of a major drug offense and the prospect of the forfeiture of the property would have been a powerful

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