US v. Property at 2323 Charms Rd., Milford Tp.

• Decision Date: 05 December 1989
• Docket Number: No. 89-70751.,89-70751.
• Citation: 726 F. Supp. 164
• Parties: UNITED STATES of America, Plaintiff, v. CERTAIN REAL PROPERTY LOCATED AT 2323 CHARMS ROAD, MILFORD TOWNSHIP; One 1977 Twin Engine Beech Aircraft, Registration Number N58EM; Miscellaneous Items of Personal Property Seized Pursuant to Search Warrant; Miscellaneous Items of Personal Property Located at 2323 Charms Road; and $517.00 United States Currency; Defendants.
• Court: U.S. District Court — Western District of Michigan

726 F. Supp. 164

UNITED STATES of America, Plaintiff, v. CERTAIN REAL PROPERTY LOCATED AT 2323 CHARMS ROAD, MILFORD TOWNSHIP; One 1977 Twin Engine Beech Aircraft, Registration Number N58EM; Miscellaneous Items of Personal Property Seized Pursuant to Search Warrant; Miscellaneous Items of Personal Property Located at 2323 Charms Road; and $517.00 United States Currency; Defendants.

No. 89-70751.

United States District Court, E.D. Michigan, S.D.

December 5, 1989.

A. George Best, Asst. U.S. Atty., Detroit, Mich., for plaintiff.

James Thomas, Detroit, Mich., for claimants Marilyn Dinning and Marnie Head.

James Burdick, Finkel, Whitefield & Selik, P.C., Southfield, Mich., for claimant David Gershon.

Michael Rex, Robert S. Harrison & Associates, Birmingham, Mich., for claimant Schuley Duane Head.

OPINION AND ORDER

COHN, District Judge.

I.

This is a civil forfeiture case involving the defendant properties and three sets of claimants. Claimant David Gershon (Gershon) is the owner of a 1977 twin engine Beech aircraft seized by agents of the United States Drug Enforcement Agency (DEA) pursuant to a seizure warrant, signed by a federal magistrate, on the grounds that the plane was used or intended to be used in the transportation of controlled substances in violation of 21 U.S.C. § 881(a)(4). Gershon filed papers styled "Claim of Ownership Interest" on March 22, 1989, asserting an ownership interest in the aircraft.

Claimant Schuley Duane Head (Duane Head) seeks return of various items of personal property, seized by Michigan State Police Narcotic Enforcement Team Officers (MSP-NET) pursuant to a seizure warrant signed by a state district court judge. Though the items remain in the custody of the state police, they are claimed by the DEA in a complaint for forfeiture, under 21 U.S.C. § 881(a)(6). On March 24, 1989, Duane Head filed papers styled "Claim," asserting that he is the lawful owner of the seized items of personal property. On June 13, 1989, Duane Head filed papers styled "Claim," asserting that he is the lawful owner of a lathe and drill press specifically identified in an "Amended Warrant of Arrest and Notice In Rem" executed by the United States District Court's Deputy Clerk.

Claimants Marilyn Dinning (Dinning) and Marnie Head (Ms. Head) seek return of the real property located at 2323 Charms Road, which was seized by the DEA pursuant to 21 U.S.C. §§ 881(a)(3) and (7). On March 22, 1989, Dinning and Head filed papers styled "Claim of Interest," asserting an interest in the real property located at 2323 Charms Road.

The three sets of claimants submitted motions for summary judgment and argued in support of the motions on August 17, 1989. At the hearing, the Court noted that the motions of Gershon and Duane Head were really motions to dismiss addressed to the adequacy of the government's complaint. The Court took the motions under advisement and ordered that: 1) the government file an amended complaint alleging with particularity the grounds for forfeiture of the aircraft; 2) the government file a list of the items of personal property belonging to Duane Head that it believes are forfeitable under the statute, listing them separately as drug paraphernalia and items purchased with proceeds from drug transactions; 3) the government file an amended complaint alleging with particularity the grounds for forfeiture of the listed items of Duane Head's property; and 4) Dinning and Head file a statement of undisputed facts in support of their motion for summary judgment.

The government has filed an amended complaint. All of the parties, except for Dinning and Head, have complied with the Court's order. Dinning and Head have withdrawn their motion and filed an answer to the amended complaint. Gershon and Duane Head each have filed a motion to dismiss the amended complaint. Gershon also has filed a motion for return of logbooks and other personal property seized at the time that the aircraft was seized.

The motions to dismiss were argued orally on November 7, 1989, and are now before the Court for decision. Because the Court finds that the allegations contained in the amended complaint remain inadequate with respect to the aircraft, Gershon's motion to dismiss is GRANTED. Because the motion for return of the logbooks and other property is coupled with the motion regarding the aircraft, that motion is also GRANTED. The allegations contained in the amended complaint are also inadequate with regard to the portion of Duane Head's property associated with his auto repair business. Therefore, his motion to dismiss is GRANTED in part and DENIED in part.

II.

On March 10, 1989, the United States initially filed a complaint for forfeiture against the Charms Road property, the aircraft, and the various items of personal property. The action grew out of the arrest of Duane Head on March 8, 1989, when he was taken into custody during the execution of a search warrant at his residence, the 2323 Charms Road property, by MSP-NET officers.

At the time of the arrest, the MSP-NET officers applied for and obtained a second warrant authorizing the seizure of property subject to forfeiture under the Michigan Public Health Code, MCLA § 333.7521. After obtaining the second warrant, the MSP-NET officers seized numerous items of personal property from Duane Head's residence. The United States then filed a complaint for forfeiture against the property seized by the MSP-NET officers. Upon the filing of the complaint, the Clerk of the Court issued a Warrant of Arrest and Notice In Rem commanding the United States Marshal to seize the property. However, Duane Head's property physically remains in the custody of the MSP-NET officers.

Gershon was identified by a police informant as a source of the cocaine allegedly sold by Duane Head. According to the informant, Gershon used or planned to use his aircraft to bring cocaine into southeastern Michigan. Based on this information and Gershon's alleged involvement in past drug trafficking, the government included the aircraft in the complaint for forfeiture and took it into custody.

III.

Consideration of the motions to dismiss requires an assessment of the adequacy of the amended complaint. Civil forfeitures under 21 U.S.C. § 881 are governed by the Supplemental Rules for Admiralty and Maritime Claims. 21 U.S.C. § 881(b). Supplemental Rule E(2)(a) provides in part that:

In actions to which this rule is applicable the complaint shall state the circumstances from which the claim arises with such particularity that the defendant or claimant will be able, without moving for a more definite statement, to commence an investigation of the facts and to frame a responsive pleading.

This requirement has been read by both the First and Eleventh Circuits to mean that "a section 881(a) forfeiture complaint must allege sufficient facts to provide a reasonable belief that the property is subject to forfeiture." United States v. Pole No. 3172, Hopkinton, 852 F.2d 636, 638 (1st Cir.1988) (citing United States v. $38,000.00 in United States Currency, 816 F.2d 1538, 1548 (11th Cir.1987)). In other words, the amended complaint must provide specific enough facts to support, without more, a reasonable inference that the government has a valid claim to the seized property. United States v. Property, Known as 6 Patricia Drive, 705 F.Supp. 710, 715 (D.R.I.1989).

In addition, the burden of proof in the trial of a forfeiture action is governed by 19 U.S.C. § 1615. Section 1615 requires that the government show probable cause for the forfeiture. Once probable cause has been shown, the burden of proving that the property was not involved in illegal drug transactions shifts back to the claimant. The level of probable cause that must be shown in a forfeiture proceeding is the same as is used to test searches and seizures generally. United States v. One 1976 Cadillac Seville, 477 F.Supp. 879, 881 (E.D.Mich.1979). However, in pleading forfeiture, the government cannot rest on the affidavits used to obtain a seizure warrant at the beginning of the process. Rather, it must show that it can prove that it has a right to retain the seized property. Thus, "a section 881 forfeiture complaint must allege facts sufficient to support a reasonable belief that the government could demonstrate probable cause in the actual forfeiture hearing." United States v. Property, Known as 6 Patricia Drive, supra at 716. If the government's allegations, taken as true, would not establish probable cause for the forfeiture, then the government cannot shift the burden to the claimant at trial, and the complaint must be dismissed.

This formulation is necessitated by the Supreme Court's decision in One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965). There, the Supreme Court held that the Fourth Amendment exclusionary rule must apply to civil forfeiture proceedings in order to deter government lawlessness. Id. at 698, 85 S.Ct. at 1249. It follows, then, that a claimant must have an opportunity to contest the validity of a seizure warrant and the seizure itself in a civil forfeiture action brought by the government. This, in turn, means that the government, through the complaint, must provide a claimant with enough information so that a challenge to the seizure can be meaningful. Ultimately, of course, the government must come forth with prima facie proof that the claimant has violated the statute to forfeit the property.

IV.

The Court rejects the government's argument, based on Kremhelmer v. Powers, 633 F.Supp. 1145, 1148 (E.D.Mich. 1986),¹ that the generous standard for assessing the sufficiency of a complaint under Fed.R.Civ.P. 12(b)(6) applies to a civil forfeiture under 21 U.S.C. § 881. As explained in United States v. Pole No. 3172, Hopkinton, supra at 638 (citation omitted), "The peculiar stringency of the particularity requirement for pleadings in these cases is based on a concern for due...