US v. One Parcel of Real Estate
Decision Date | 05 May 1994 |
Docket Number | No. 88-12082-CIV.,88-12082-CIV. |
Parties | UNITED STATES of America, Plaintiff, v. ONE PARCEL OF REAL ESTATE consisting of approximately 4,346 acres, located in Glades County, Florida, together with all appurtenances thereto and all improvements thereon, a/k/a the "S.J. & W. Ranch," Defendant. |
Court | U.S. District Court — Southern District of Florida |
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Robert A. Rosenberg, Asst. U.S. Atty., Ft. Lauderdale, FL, for plaintiff.
J. David Pobjecky, Winter Haven, FL, Phillip E. Kuhn, Lakeland, FL, for defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
THIS CAUSE was tried before the undersigned without a jury on October 12, 13, 14, 15, and 29 and November 1, 2, 3, 4, and 8, 1993. Having reviewed the file and the various documents, photographs and other items submitted as evidence, having heard and considered the testimony of the witnesses and the arguments of the parties at trial, and further, having reviewed pertinent parts of the transcript of the hearing held in March 1993, the Court now makes the following findings of fact and conclusions of law pursuant to Rule 52(a), Federal Rules of Civil Procedure.
This is a civil forfeiture action brought pursuant to 21 U.S.C. § 881(a)(7). On September 13, 1988, Plaintiff United States of America filed this in rem forfeiture action against the Defendant, 4,346 acres of real property1 owned by the S.J. & W. Ranches, Inc., (S.J. & W.), in Glades County, Florida. An amended complaint for forfeiture was filed on October 4, 1989. The S.J. & W. corporation filed a claim of ownership2 in response to the forfeiture action, denying that the property was subject to forfeiture. On January 17, 1991, S.J. & W. filed an answer and affirmative defenses to the Amended Complaint for Forfeiture.
The alleged basis for forfeiture is that one section of the Defendant property was "intended to be used as a landing site, offloading point and distribution center" for approximately four hundred (400) kilograms of cocaine. The drugs were imported by an organization controlled by Alan Parrott. The intended delivery, via clandestine air travel, was scheduled for February 7, 1986. Evidence of an unsuccessful attempt to land a plane was discovered on the Brighton Seminole Indian Reservation, approximately ¼ mile from the border of the S.J. & W. property, on February 17, 1986. Following the crash, several individuals not directly involved in this current action were arrested and criminally convicted on drug smuggling and conspiracy charges related to their involvement in the Parrott organization. See State of Florida v. Roosevelt Bray, Case No. 86-14795 CF A; State of Florida v. Nathan Platt, Jr., Case No. 86-14795 CF D. The United States filed this forfeiture action 31 months after the incident which is alleged to have rendered the property subject to forfeiture.
In its answer to the forfeiture complaint, S.J. & W. affirmatively denies the existence of an airstrip, claims no "knowledge, consent or participation" in the acts alleged as the basis for forfeiture, and argues that the United States did not have probable cause for forfeiture. Answer, p. 7. The corporation also claims that the Defendant property consists of ten (10) distinct titled parcels or tracts of land, each separately recorded and separately liable for real estate taxes.3
As an additional affirmative defense, claimants allege that no notice was given to the Defendant property's owner, S.J. & W., nor to any of the owner's agents, servants or employees, that the defendant real estate was subject to forfeiture before the Complaint was filed. The due process requirements of pre-seizure hearing and notice are applicable to civil in rem forfeiture proceedings against real property, although a violation of these due process rights need not invalidate the forfeiture. United States v. James Daniel Good Real Property, ___ U.S. ___, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993). As the Court has determined that the property should be returned to the Claimants it is unnecessary to further address the due process concerns presented by the government's failure to provide pre-seizure notice.
S.J. & W. initially moved to dismiss the amended complaint, based on a lack of probable cause. On March 13, 1990, this Court denied S.J. & W.'s motion, but noted that "the factual basis for probable cause only barely passes legal sufficiency." Order, March 13, 1990.
On November 23, 1990, this Court granted partial summary judgment in favor of the United States on the issue of probable cause, finding that "the Government had a reasonable basis for believing the property was subject to forfeiture." Order, November 23, 1990, p. 6. At the same time, the Court denied S.J. & W.'s cross-motion for summary judgment on the probable cause issue and ruled that the cross-motion for summary judgment on the innocent owner defense was premature, since discovery was incomplete at that time.
S.J. & W. then filed a Motion asking the Court to reverse the entry of summary judgment on the probable cause issue and seeking an evidentiary hearing on its claims that the law enforcement affidavits, on which the Court had relied in assessing probable cause for the forfeiture, had contained deliberate falsehoods or were made with reckless disregard for the truth. The Supreme Court, in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), established the right of a criminal defendant to challenge the veracity of an affidavit used by police to secure a search warrant. Although the Eleventh Circuit had not yet ruled on the appropriateness of a Franks proceeding to challenge affidavits submitted on the probable cause issue in a civil forfeiture action, this Court found support in the First and Second Circuits and ruled that "Franks is available to challenge the veracity of affidavits submitted by the Government in a civil forfeiture case." Order, July 22, 1993, p. 3, n. 2. The Court conducted a hearing in response to S.J. & W.'s allegations.
To successfully present a Franks violation and demonstrate that a warrant was based on a false affidavit, the "defendant must show that (1) the affidavit contained false statements; (2) the statements were material to the issue of probable cause; and (3) the false statements were made knowingly and intentionally, or with reckless disregard for the truth." Franks v. Delaware, 438 U.S. at 155-56, 98 S.Ct. at 2676. The claimants' allegations related primarily to the law enforcement officers' limited disclosure of the questionable credibility of confidential informant Larry Fernandez, the alleged recantation of Nathan Platt's corroborating statement, and the disputed timing of the officers' aerial inspection of the S.J. & W. property. This Court's Order of July 22, 1993, found that S.J. & W. did not carry its burden, under Franks, of showing that the affidavits contained deliberate falsehoods or were prepared with reckless disregard for the truth.
However, as a result of the evidence presented at the Franks hearing, the Court reversed its prior ruling on probable cause. Order, July 22, 1993. The Court found that there were specific questions involving disputed facts raised by the evidence submitted at the hearing.
Order, July 22, 1993, p. 11 (footnote added).
The Court then set the case for trial. Subsequent to the Franks inquiry, but prior to commencement of trial, the Supreme Court announced its decision in Austin v. United States, ___ U.S. ___, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993). S.J. & W. filed a Motion to Dismiss the forfeiture complaint based on the application of eighth amendment concerns as noted in Austin. S.J. & W. also filed a Motion to exclude any testimony from the DEA concerning the amount of drugs alleged to have been on the plane, arguing that Austin required a balancing of the value of the property sought to be forfeited with the value of the drugs involved in the crime, and that such determination required proof by the strictest standard, not through hearsay testimony. At trial, on October 12, 1993, the Court conditionally admitted the testimony of Agent Fleckenstein of the DEA, for the limited purpose of later eighth amendment arguments under Austin.
The testimony in this case included significant amounts of admissible hearsay, photographs, and agricultural exhibits. This Memorandum and the Court's findings will address the record evidence in some detail, first concerning the government's attempted proof of probable cause for forfeiture, followed by a discussion of claimant's efforts to establish innocent ownership.
1. A Piper Navajo 310, registration number N7EA, crashed in early February 1986, on the Brighton Seminole...
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