US v. Certain Real Property

• Decision Date: 18 September 1990
• Docket Number: No. 89-C-516.,89-C-516.
• Citation: 747 F. Supp. 505
• Parties: UNITED STATES of America, Plaintiff, v. CERTAIN REAL PROPERTY, COMMONLY KNOWN AS 6250 LEDGE ROAD, EGG HARBOR, WISCONSIN, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

747 F. Supp. 505

UNITED STATES of America, Plaintiff, v. CERTAIN REAL PROPERTY, COMMONLY KNOWN AS 6250 LEDGE ROAD, EGG HARBOR, WISCONSIN, Defendant.

No. 89-C-516.

United States District Court, E.D. Wisconsin.

September 18, 1990.

John E. Fryatt, U.S. Atty. by William J. Lipscomb, Asst. U.S. Atty., Milwaukee, Wis., for plaintiff.

Styler, Kostich, LeBell & Dobroski by Nikola P. Kostich, Milwaukee, Wis., for defendant.

DECISION AND ORDER

MYRON L. GORDON, Senior District Judge.

On May 3, 1989, the United States commenced this civil action under 21 U.S.C. § 881(a)(7) seeking the forfeiture in rem of a four-acre tract of real property located at 6250 Ledge Road, Egg Harbor, Wisconsin. On the scheduled trial date, June 4, 1990, the parties agreed in open court to waive a trial and to submit the matter to the court for disposition on stipulated facts by filing cross-motions for summary judgment. The government's motion for summary judgment will be granted, and the clerk will be directed to enter judgment of forfeiture of the defendant real property.

The parties' stipulation included the following materials: the January 18, 1990, warrant issued to the Door County Sheriff's Department authorizing the search of the defendant property, along with the application prepared by Sergeant Garey Bies of the Door County Sheriff's Department, and the corresponding return; the report of Allyn Buehler, a sergeant investigator for the Door County Sheriff's Department, prepared following the search; a diagram of the defendant property; an affidavit of James Gordon, dated June 4, 1990; a retainer agreement between James Gordon and his attorney, Nikola Kostich, dated February 6, 1990; and certain portions of the government's motion for summary judgment. The parties also submitted an addendum to the foregoing materials dated June 21, 1990.

It is by an indirect path that the stipulated facts lead to the core controversy in this case. During late 1988 and early 1989, through the use of informants and by personal observation, Sergeant Bies, a nineteen-year veteran of the Door County Sheriff's Department, came to suspect that Anne Miller, a resident of Baileys Harbor, Wisconsin, was involved in illegal drug activity. One of Sergeant Bies' informants, who had recently been arrested for possession of cocaine, had become of some assistance in drug investigation efforts. That informant had provided information that proved to be corroborated and to lead Sergeant Bies to other arrests and to the belief that the informant was reliable.

On January 7, 1989, that informant (who has never been named) indicated that he had within the past six months been involved in cocaine dealings with Ms. Miller —that he had sold cocaine to her and bought it from her. The informant disclosed to Sergeant Bies that Ms. Miller received her cocaine from Florida, via the United States mail.

On January 17, 1989, Sergeant Bies learned from the Baileys Harbor postmaster that a small brown package from Florida had arrived for delivery at Ms. Miller's residence: 8215 South Highway 57, Baileys Harbor, Wisconsin. The package had been received from Florida and was addressed to "A & M Enterprises, c/o Monk, 8215 Hwy 57, Baileys Harbor, WI 54202." Sergeant Bies learned that the package was to have been delivered at Miller's residence on January 18, 1989, in the mid-afternoon. A United States Postal Inspector retrieved the package and, on the morning of January 18, 1989, Sergeant Bies watched as the unopened package, along with five others randomly selected from the mails, faced a "canine sniff" test. A canine, who Sergeant Bies believed was well-trained and "extremely reliable," positively indicated the presence of illegal drugs in the Miller package. Sergeant Bies also learned from the Daytona Beach police department that the return address on the package, 323 S. Beach St., Daytona Beach, Florida, is nonexistent.

Shortly after that package was delivered at Ms. Miller's Baileys Harbor residence, Door County Sheriff's Deputies executed a search of her residence, pursuant to a warrant. The search uncovered various items that confirmed the officers' belief that Ms. Miller was involved in criminal activity — illegal drug trafficking. The officers found the previously mentioned package, which contained a plastic bag with white powder. The officers also found plastic bags with green plant material residue and a plastic bowl containing green plant material residue and rolling papers. Chemical tests revealed that the white powder tested positive for the presence of cocaine and the green plant material tested positive for the presence of the chemically active ingredient of marijuana (THC).

The search also substantiated Sergeant Bies' belief that a relationship existed between Anne Miller and James Gordon and that they were living together. During the search of Ms. Miller's residence, one drawer of men's clothing was found in the bedroom. Sergeant Bies also observed that Mr. Gordon's vehicle was "commonly parked" at Ms. Miller's residence and had seen the two of them together on "hundreds of occasions." In fact, just as the law enforcement officers were preparing to execute the search warrant at Ms. Miller's residence, Ms. Miller and Mr. Gordon arrived in one of Ms. Miller's vehicles.

Sergeant Bies had also been observing Mr. Gordon and Mr. Gordon's residence during the preceding months. Another informant, who had on at least ten occasions provided Officer Bies with detailed and "reliable information" about Door County drug activities, corroborated by Officer Bies' personal observations and by other informants, "indicated that on several occasions in approximately late Summer of 1988" he was at Mr. Gordon's residence and had been given cocaine and marijuana by Mr. Gordon. The effect of that information, along with the evidence uncovered at Ms. Miller's residence and his personal observations, was to develop in Sergeant Bies the belief that a search of Mr. Gordon's residence would uncover evidence of illegal drug trafficking.

Disclosing this information in an affidavit, Sergeant Bies prepared an application for a search warrant for Mr. Gordon's residence, a one-story ranch-style home located on the defendant property, at 6250 Ledge Road, Egg Harbor, Wisconsin. On January 19, 1989, the application was submitted to a judicial officer, Door County Circuit Judge John D. Koehn, who ordered that the warrant issue. The subject of the search was the residence, along with all surrounding curtilage, appurtenances and outbuildings. The items sought included heroin, cocaine, marijuana, hashish, and paraphernalia related to the sale and use of cocaine and marijuana — evidence of the commission of a violation of Wisconsin criminal law.

On January 19, 1989, pursuant to the search warrant, Door County law enforcement officers conducted a search of a residence and outbuildings located on the defendant property. During the search, the officers (with the assistance of a trained canine) discovered two secret rooms located behind hidden walls in the residence. In those rooms was conducted a highly sophisticated marijuana growing operation consisting of 460 plants, plant food and fertilizer (manure), flourescent grow lamps, a temperature control and humidifying system, a carbon dioxide monitoring system, a food dehydrator, and drying marijuana plant material. Random tests of the plants confirmed the presence of the chemically active ingredient in marijuana, THC. On a bulletin board in the residence the officers found a business card beneath a photograph of Mr. Gordon, ostensibly identifying Mr. Gordon as "The Big Monk."

As a result of this discovery, the owner of the defendant property, Mr. Gordon, became a defendant himself — in two state court criminal prosecutions: State of Wisconsin v. Gordon, Case Nos. 89-CF-018 and 89-CF-019 (filed March 2, 1989). In state court, Mr. Gordon has been charged with two felony counts: knowing manufacture of marijuana in excess of 2,500 grams in violation of secs. 161.14(4)(t) and 161.41(1)(h)(3), Stats.; and knowing maintenance of a dwelling used for the manufacture of a controlled substance in violation of secs. 161.14(4)(t) and 161.42(2), Stats. In this court, the United States filed this civil action alleging that by virtue of 21 U.S.C. § 881(a)(7) the defendant property was subject to forfeiture to the government. Attorney Kostich was retained as defense counsel by Mr. Gordon in both this civil action and in the state criminal proceedings.

In response to the government's allegations that the defendant property was subject to forfeiture under 21 U.S.C. § 881(a)(7), Mr. Gordon filed a verified claim and answer as required by Rule C(6), Supplemental Rules for Certain Admiralty and Maritime Claims. Mr. Kostich also asserted an interest in the property at issue. He filed a verified claim pursuant to Rule C(6), but then failed to file an answer as required by that rule. It appeared that Mr. Kostich had withdrawn his claim; Mr. Kostich was present but remained silent when the government's attorney notified the court of the withdrawal during a hearing. Nevertheless, subsequent correspondence from Mr. Kostich and from the government suggests that this issue remains unresolved. For that reason, the court will resolve it by dismissing Mr. Kostich's claim for failure to comply with Rule C(6). Mr. Gordon, the owner of the defendant property, alone, is the claimant in this action.

The comprehensive drug forfeiture statute under which this civil action has been brought, 21 U.S.C. § 881(a), provides in pertinent part:

The following shall be subject to forfeiture to the United States and no property right shall exist in them: ...

(7) All real property, including any right, title, and interest (including any leasehold interest) in the whole of any lot or tract of land and any appurtenances or improvements, which is used, or intended to be used, in any manner or part,

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