US v. PROPERTY 908 T STREET, NW, WASH., DC, Civ. A. No. 88-2448 (JHG).

• Decision Date: 12 March 1991
• Docket Number: Civ. A. No. 88-2448 (JHG).
• Citation: 758 F. Supp. 761
• Parties: UNITED STATES of America, Plaintiff, v. PROPERTY IDENTIFIED AS 908 T STREET, N.W., WASHINGTON, D.C., Real Property Containing a Three Story Brick Building with Basement, Further Described as Square 362, Lot 232, Defendant.
• Court: U.S. District Court — District of Columbia

758 F. Supp. 761

UNITED STATES of America, Plaintiff, v. PROPERTY IDENTIFIED AS 908 T STREET, N.W., WASHINGTON, D.C., Real Property Containing a Three Story Brick Building with Basement, Further Described as Square 362, Lot 232, Defendant.

Civ. A. No. 88-2448 (JHG).

United States District Court, District of Columbia.

March 12, 1991.

William J. O'Malley, Asst. U.S. Atty., Washington, D.C., for plaintiff.

Mercer Anderson, Washington, D.C., for claimant William Akers.

Mark H. Friedman, Friedman & MacFadyen, Baltimore, Md., for intervenor Nat. City Mortg. Co.

ORDER

JOYCE HENS GREEN, District Judge.

On August 30, 1988, the government initiated a civil forfeiture action under the Controlled Substances Act, 21 U.S.C. § 881, alleging that defendant property was used to distribute and facilitate the distribution of heroin and cocaine. Presently pending is plaintiff's motion for summary judgment.¹ For the following reasons, plaintiff's motion is denied.

I. BACKGROUND

On three separate occasions, members of the Metropolitan Police Department for the District of Columbia ("MPD") executed search warrants and recovered various narcotic substances from defendant property.² Claimant, William Akers, owner of defendant property, was charged with violating the Controlled Substances Act on two of these occasions, but in both instances, he was acquitted. Nevertheless, the government contends that "at least as of February 20, 1986," title in the defendant property vested in the United States. Plaintiff's Motion for Summary Judgment ("Plaintiff's Motion"), at 10.

II. DISCUSSION

Summary judgment is appropriate when there is "no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R. Civ.P. 56(c). "The inquiry performed is the threshold inquiry of determining whether there is a need for trial — whether, in other words, there are any genuine issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. at 2513. At the same time, however, Rule 56 places a burden on the nonmoving party to "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

The governing statute provides for the forfeiture of "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, to commit, or to facilitate the commission of, a violation of this title punishable by more than one year's imprisonment, except that no property shall be forfeited under this paragraph, to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner." 21 U.S.C. § 881. Unlike other civil proceedings, in which it is the moving party's burden to prove its case by a preponderance of the evidence, forfeitures under § 881 are governed by the procedural standards regarding forfeitures under the federal customs laws, 21 U.S.C. § 881(d), which require the government only to show probable cause for initiating the lawsuit, and then the burden shifts to the claimant to show by a preponderance of the evidence that the property is not subject to forfeiture. United States v. Brock, 747 F.2d 761, 762 (D.C. Cir.1984) (per curiam).

It is clear that plaintiff had probable cause to believe that the defendant property was used to commit or facilitate the commission of a felony in violation of Title 21 of the United States Code.³ On February 20, 1986, members of the MPD executed a search warrant on the premises of defendant property and recovered, inter alia, bags of cocaine, 43 plastic bags of heroin, one tinfoil package of heroin, 19 tablets of Preludin, and one white plastic bag containing cannabis. Similarly, on August 12, 1988, pursuant to a search warrant, the MPD recovered one clear plastic bag containing 145 rolled packets of heroin, two packets of "crack" cocaine, one clear plastic bag containing approximately 13 grams of heroin, 61 tablets of marked Darvocet, 54 tablets marked Valium, and a 12 gauge shotgun with ammunition.

In view of the government's probable cause showing, the only issue remaining is whether the claimant has proved that the illegal use...