US v. Leasehold Interest in 121 Nostrand Ave.
| Decision Date | 26 March 1991 |
| Docket Number | No. 90 Civ. 1607.,90 Civ. 1607. |
| Parties | UNITED STATES of America, Plaintiff, v. The LEASEHOLD INTEREST IN 121 NOSTRAND AVENUE, APARTMENT 1-C, BROOKLYN, NEW YORK, Defendant, and Clara Smith, on behalf of herself and as next friend of Tara Smith, Anthony Smith, Marcus Smith, Kevin Smith, Kelima Smith, Quentay Smith, Jamele Smith, Nicole Smith, Ramel Smith, Fatima Smith, Jasmine Carr, Shawn Lindsy, Shonda Lindsy, and Melissa Smith, Intervenors-Claimants. |
| Court | U.S. District Court — Eastern District of New York |
COPYRIGHT MATERIAL OMITTED
Andrew J. Maloney, U.S. Atty., E.D.N.Y. by Lisa M. Burianek, Stephen J. Riegel, Brooklyn, N.Y., for plaintiff.
Sullivan and Cromwell by Phillip L. Graham Jr., John E. Kirklin, Geoffrey Potter, Frank T. Herdman, New York City, for intervenors-claimants.
TABLE OF CONTENTS
I. Introduction
II. Procedural Background
III. Facts
A. Household Members
B. Connection of Household to Drug Activity
C. Clara Smith and the Apartment
IV. Law
A. Public Housing Forfeiture
B. Preseizure Notice and Hearing Required
C. Procedures to Obtain Forfeiture
1. Adequate Notice
2. Claimants' Objection
3. Scope of Preseizure Hearing
D. Probable Cause to Forfeit
E. Defenses to Forfeiture
1. Burdens of Proof
2. Innocent Ownership
3. No Unlawful Activity
4. Fifth Amendment
F. Forfeiture of Other Claimants' Interests
V. Conclusion
I. INTRODUCTION
The Government seeks to enforce an anti-drug forfeiture statute (21 U.S.C. § 881) against occupants of an apartment in a city-run housing project for the poor. By reducing the number of locations from which illegal narcotics are sold, the recently adopted law is expected to help alleviate the nation's drug problem and to increase the well-being and safety of occupants of public housing.
Drugs and drug-related crime are widespread in low-income housing. Dwellers in public housing need relief from the presence of drug sellers and buyers in and near their homes. Evicting drug dealers from their apartments, it is hoped, will make housing projects safer and more decent.
This case reveals some of the limitations of apartment forfeiture as a means of eliminating drugs from public housing complexes. For the poor, the shortage of livable, low-priced housing is especially acute. Tenants — and especially their minor children—who are evicted are likely to become homeless, with whatever stability their lives afforded seriously jeopardized.
For reasons stated below, the owner of the defendant leasehold is entitled to retain her home. Her children, grandchildren and great-grandchildren, who look to her for shelter as the family's matriarch, may not be dispossessed because one of them has sold drugs from their apartment. That person may, however, be forced from the apartment since it was illegally used by her as a base for her own illicit drug activities. An injunction against future illegal use will be granted.
II. PROCEDURAL BACKGROUND
On May 10, 1990, the United States filed this civil forfeiture action pursuant to 21 U.S.C. § 881(a)(7) against the defendant leasehold, Apartment 1-C, 121 Nostrand Avenue, Brooklyn, New York. The apartment was allegedly used to facilitate the sale or distribution of narcotics.
By order to show cause, the Government requested warrants for the arrest in rem and for interim seizure of the leasehold. It served a copy of the order to show cause, the verified complaint in rem and declarations with attached exhibits on Mrs. Clara Smith, a potential claimant to the leasehold and responsible resident of the apartment.
A hearing on the order to show cause was held on May 22nd. The court ordered pro bono counsel appointed for Mrs. Smith and her progeny. Further proceedings were postponed until appointed counsel had consulted with their clients. The court notes that these uncompensated counsel have, in the highest tradition of the bar, served their clients with great skill.
By letter of July 9th, the Government requested an expedited hearing to obtain interim seizure of the apartments. In light of the novel and complex legal issues, counsel for potential claimants requested additional time in which to file motions and to respond to the request for interim relief. On July 30th the court ordered that motions for intervention or interim relief be filed by August 22nd and be made returnable on September 7th. The stay of further proceedings was continued.
To correct a possible defect in service, the Government posted supplemental warrants for arrest in rem and a second copy of the verified complaint at the apartment on August 2nd. A "Notice of Attachment," which provided that the apartment would remain in the custody of the United States Marshal until the claim was settled or a bond was furnished, was also posted.
By order to show cause, the potential claimants sought to have the August 2nd warrant and notice of attachment vacated. Pursuant to a stipulation dated August 6th, the notice of attachment was withdrawn, and the date for filing of motions for intervention or interim relief was extended to September 10th. The Government published legal notice of the arrest of the defendant leasehold on August 7th, 8th, and 9th in a newspaper of general circulation within this district.
Clara Smith, the leaseholder of apartment 1-C, by notice of motion dated September 10th moved to intervene in the forfeiture proceedings on behalf of herself and any minor children living in the apartment. The proposed verified intervenor complaint, while nominally brought under Rule 24(a) of the Federal Rules of Civil Procedure, was also intended to serve as a verified notice of claim under the rules governing forfeiture proceedings. The proposed claimants sought a stay of discovery and of further proceedings until their Fifth Amendment privileges were given full protection in related and threatened criminal drug prosecutions. They also requested a ruling on the scope and effect of any defenses available at the interim seizure hearing.
On September 26th, the court heard argument on the availability of intervention and the request for interim relief. After taking judicial notice of the extreme public housing shortage in New York City and the likelihood that dispossession would lead to homelessness, the following tentative, interim rulings were issued:
Following the preliminary rulings, the Government withdrew its request for interim seizure. Instead, it requested an expedited trial.
In preparation for trial, the claimants sought discovery of police officers who conducted the undercover operations that led to the forfeiture action. The Government objected to the examination of police officers who were still engaged in undercover investigations. Discovery was denied.
In correspondence prior to trial, the United States agreed that if Clara Smith was found to be an innocent owner, it would not attempt to forfeit the interests of the minor intervenors. If Clara Smith did retain the apartment, however, the Government still desired to forfeit any occupancy rights of the apartment's other adult occupants, Juanita Smith, Sylvia Smith and Chenelle Smith. By their action in this litigation, these occupants have effectively claimed...
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