US v. One Parcel of Real Estate Property, Civ. A. No. S85-1252(NG).

• Decision Date: 29 January 1987
• Docket Number: Civ. A. No. S85-1252(NG).
• Citation: 660 F. Supp. 483
• Court: U.S. District Court — Southern District of Mississippi
• Parties: UNITED STATES of America, Plaintiff, v. ONE PARCEL OF REAL ESTATE PROPERTY with Buildings, Appurtenances and Improvements, KNOWN AS the ROD AND REEL FISH CAMP Located At Ocean Springs, Mississippi, Defendant.

660 F. Supp. 483

UNITED STATES of America, Plaintiff, v. ONE PARCEL OF REAL ESTATE PROPERTY with Buildings, Appurtenances and Improvements, KNOWN AS the ROD AND REEL FISH CAMP Located At Ocean Springs, Mississippi, Defendant.

Civ. A. No. S85-1252(NG).

United States District Court, S.D. Mississippi, S.D.

January 29, 1987.

Gloria A. Bedwell, Asst. U.S. Atty., Mobile, Ala., for plaintiff.

David A. Wheeler, Biloxi, Miss., Barbara E. Hall, Gautier, Miss., Richard M. Crump, Barry Hess, Michael D. Knight, Mobile, Ala., Richie E. Perkins, Moss Point, Miss., for defendant.

MEMORANDUM OPINION

GEX, District Judge.

This 21 U.S.C. Section 881 forfeiture proceeding comes before the Court on the motions for summary judgment filed by the United States regarding the claims of Claimants Holmes¹, Van Nort and Davis, the Motion to Dismiss filed on behalf of Defendant Real Property, and the Motion for More Definite Statement and Motion to Dismiss filed by Claimant First Federal Savings and Loan Association of Pascagoula. The Court has fully considered the record in this matter, together with the briefs submitted by the parties, and finds as follows, to-wit:

Facts

The evidence submitted to the Court in support of the Government's Motion for Summary Judgment established the following facts leading to the seizure of the subject property. On or about April and/or May of 1979, Robert Bosarge agreed, on behalf of Joe Butler and Patrick M. Waldrop, to locate and purchase in his name a piece of property on the Mississippi Gulf Coast intended for use as an off-loading site for a shipment of marijuana to be transported from Columbia to the United States aboard the F/V Morning Star. In furtherance of this agreement, Robert Bosarge located the property, presently subject to seizure, known as the Rod and Reel Fish Camp (Camp) in Ocean Springs, Mississippi. Mr. Bosarge then contacted Joe Butler and/or Patrick M. Waldrop to obtain their review and approval of the property as a site for off-loading the marijuana. Butler and/or Waldrop then visited the property with Bosarge and, finding it suitable, negotiated the purchase with an agent of Holmes Real Estate in Ocean Springs, Mississippi. The property was purchased in the name of Robert Bosarge on or about May of 1979, although the $61,000 paid on the property was provided to Robert Bosarge by Joe Butler, as were all sums paid under the mortgage, assumed by Bosarge upon purchase, payable to First Federal Savings & Loan Association of Pascagoula.

Bosarge, Butler, Waldrop and other members of the smuggling operation then prepared for the receipt of the expected shipment of marijuana. However, in July of 1979, the F/V Morning Star was boarded and seized by the United States Coast Guard in the Gulf of Mexico. At the time of the seizure the F/V Morning Star contained the cargo of marijuana intended to be unloaded at the Camp. No connection between the F/V Morning Star and the Camp was known to the authorities at that time, nor was any connection discovered until 1982 when Robert Bosarge — the nominal owner of the property — agreed to cooperate with the United States Attorneys Office. As a result of information received from Bosarge, an investigation was initiated regarding the attempted 1979 smuggling operation culminating in the seizure of the F/V Morning Star. During this investigation a tape recording was obtained by Robert Bosarge — via body recorder — of a conversation with Richard David Holmes regarding a planned transfer of title to the property from Bosarge to Holmes in order to prevent seizure of the property by the United States Government. During the recorded conversation, Holmes stated that he had agreed to put the property in his name as a favor to Joe Butler and that Butler would continue to make all payments on the property. He also admitted that he had been told that the property was to have been used in a drug smuggling operation.

At the conclusion of the investigation, indictments were returned against numerous individuals involved in the 1979 drug smuggling operation, including Joe Butler and Richard David Holmes. Mr. Holmes testified at trial in February, 1984. During his testimony he admitted that the Camp had been transferred into his name as a favor to Joe Butler and that he had not paid any sums due and owing on the property until the indictment had been returned against him and his alleged co-conspirators. He further stated that he was aware of the intended use of the property as an off-loading site for marijuana and that the transfer of title to the property occurred for the sole purpose of preventing seizure by the government. Holmes was subsequently convicted of the drug conspiracy charges.

In 1984, Holmes leased, with an option to purchase, the property to Jacqueline Van Nort and Daniel L. Davis. Van Nort and Davis continue to occupy the property at the present time.

In March of 1985, the United States seized the Camp and instituted the instant forfeiture proceedings in the United States District Court for the Southern District of Alabama, Southern Division. A Motion to Dismiss was filed by "the Defendant" on April 11, 1985. A Motion for More Definite Statement and Motion to Dismiss was then filed by First Federal Savings and Loan Association of Pascagoula on April 22, 1985, as Claimant to the property by virtue of the lien held thereon. Finally, a Complaint was filed on behalf of Jacqueline Van Nort and Daniel L. Davis on April 22, 1985, contesting the forfeiture and specifically seeking to have certain enumerated personalty exempted from forfeiture. The United States then filed two Motions for Summary Judgment seeking dismissals of the claims of David R. Holmes, Jacqueline Van Nort and Daniel L. Davis.

On October 3, 1985, Judge Cox, United States District Judge for the Southern District of Alabama, issued an opinion finding jurisdiction of the cause improper in the Southern District of Alabama and transferring the cause to the Southern District of Mississippi — the situs of the res. The cause was transferred to this Court. The Court now seeks to address the pending motions of the various parties to this litigation. For purposes of clarity, each of the Motions addressed by this opinion will be discussed separately below.

I. A. Motions for Summary Judgment filed by the United States on the claims of Van Nort/Davis.

The United States seeks summary judgment on the claim to the subject property asserted by Van Nort and Davis on the ground that these Claimants lack a sufficient property interest to confer upon them standing to contest the forfeiture.² According to the United States a mere leasehold interest in the real property is not sufficient to create a "property interest" necessary for "standing" to contest the forfeiture.

21 U.S.C. Section 881 provides in pertinent part:

a) Property Subject

The following shall be subject to forfeiture to the United States and no property interest shall exist therein:

(7) All real property, including any right, title and 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 to commit, or facilitate the commission of a violation of this title ... except that no property shall be forfeited under this paragraph to the extent that an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without knowledge or consent of that owner.

A claimant seeking to challenge a forfeiture of property pursuant to 21 U.S.C. Section 881 must demonstrate an interest in the seized property sufficient to satisfy the court of his standing to contest the forfeiture. United States v. Forty-seven Thousand, Eight Hundred and Seventy-five Dollars ($47,875.00) in United States Currency, 746 F.2d 291, 293 (5th Cir.1984) (citing United States v. Three Hundred Sixty-four Thousand, Nine Hundred Sixty Dollars ($364,960.00) in United States Currency, 661 F.2d 319, 326 (5th Cir.1981)). Although the term "owner" is employed in the statute, this term has been broadly construed to encompass any person with a recognizable legal or equitable interest in the seized property. 746 F.2d at 293. Thus, a lessor property interest such as possession may be sufficient to create standing. United States v. 1982 Sanger 24' Spectra Boat, 738 F.2d 1043, 1046 (9th Cir.1984) (citing United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)).

Furthermore, the property interest asserted by the claimant must predate the right to forfeiture asserted by the United States, for it is well established that when property is subject to forfeiture for violation of the law, title vests absolutely in the government on the date of the illegal act. Seizure and a subsequent decree of forfeiture merely confirms the forfeiture that has already taken place. United States v. Stowell, 133 U.S. 1, 10 S.Ct. 244, 33 L.Ed. 555 (1890); United States v. One 1967 Chris-Craft 27 Foot Fiber Glass Boat, 423 F.2d 1293 (5th Cir.1970); Florida Dealers and Growers Bank v. United States, 279 F.2d 673 (5th Cir.1960); U.S. v. One Piece of Real Estate, 571 F.Supp. 723 (W.D.Tex.1983). Since the forfeiture actually occurs at the moment of the illegal use, no third party can acquire a legally cognizable interest in the property after the date of the illegal act which forms the basis of the forfeiture. The condemnation when obtained relates back to the time of the wrongful act and voids all intermediate sales and alienations. Opposition to forfeiture must, therefore, be dismissed if the claimant obtained his "property interest" subsequent to the illegal act. Simons v. United States, 541 F.2d 1351, 1352 (9th Cir.1976); U.S. v. One Piece of Real Estate, 571 F.Supp. 723 (W.D.Tex.1983). See also, Florida Dealers and Growers Bank v. United States, 279 F.2d 673 (5th Cir. 1960); Wingo v. United States, 266 F.2d 421 (5th Cir.1959); Weathersbee v....