US v. Property Identified as 908 T Street, NW

• Decision Date: 19 July 1991
• Docket Number: Civ. A. No. 88-2448 (JHG).
• Citation: 770 F. Supp. 697
• 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

770 F. Supp. 697

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.

July 19, 1991.

Jock Banks, Asst. U.S. Atty., Washington, D.C., for plaintiff.

Larry Klayman, Frederick J. Sujat, Jennifer A. Widmer, Klayman & Associates, Washington, D.C., for claimant William Akers.

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

MEMORANDUM OPINION

JOYCE HENS GREEN, District Judge.

The government initiated this civil forfeiture action under the Controlled Substance Act, 21 U.S.C. § 881, alleging that defendant property was used to distribute or facilitate the distribution of heroin and cocaine. Having considered the evidence adduced at a bench trial and the entire record herein and having had an opportunity to examine the credibility of the witnesses and to consider their demeanor and behavior as witnesses on the stand and their manner of testifying, the Court concludes, for the reasons articulated below, that claimant William Akers, the owner of defendant property, has established, by a preponderance of the evidence, that he may not have known and that he did not consent to the use of his home "to commit, or to facilitate the commission of" narcotics violations. See 21 U.S.C. § 881(a)(7).

I. PROCEDURAL HISTORY

On August 30, 1988, the government filed a complaint for forfeiture in rem, accompanied by an affidavit of Guy L. Poirier, Investigator, Financial Investigation Unit, Metropolitan Police Department ("MPD"); two affidavits of William Nealis, a detective with the MPD; and an affidavit of Joseph Romano, an officer with the MPD. The government subsequently moved for summary judgment. On June 20, 1990, claimant opposed said motion and submitted affidavits of both the claimant and his daughter, Gail W. Akers ("Gail").¹ On March 12, 1991, plaintiff's motion for summary judgment was denied; the Court found that there was a genuine dispute as to whether claimant consented to the use of defendant property for the facilitation of drug offenses. 758 F.Supp. 761. Consequently, on July 11, 1991, there was a trial of this case.

II. FACTUAL FINDINGS

On April 26, 1984, Detective Nealis prepared an affidavit in support of a search warrant for the premises of 908 T Street, N.W. in the District of Columbia. According to the affidavit, which he adopted at trial, Detective Nealis was advised by a undisclosed source² that illicit drugs were being sold from those premises. After meeting with the detective, the source proceeded to 908 T Street, N.W. where he met an unknown "subject," a black male from whom he purchased a drug called phenmetrazine. The detective further testified that, consistent with the Report of Investigation, which was admitted into evidence, the unknown "subject" was a man named "Billy," a black male, between 40 and 45 years old.

According to Detective Nealis' testimony, members of the 1984 search team recovered from a locker on the third floor of claimant's house $300,000 to $350,000, narcotics; claimant's driver's license or, according to the testimony of claimant, a bill, and a fingerprint of claimant. The Report of Investigation further describes that numerous rounds of shotgun shells, two shotguns, three handguns, narcotic paraphernalia, pistol ammunition, $1072 in cash, three one-ounce packets with a white powder determined to be heroin, fifty rolled quarters of heroin, one and one-half pounds of cannabis, and various pills were found in the claimant's home. Claimant was indicted and acquitted of all charges prosecuted as a result of this search.

Detective Nealis prepared another affidavit on August 11, 1988, also in support of a search warrant for the premises of 908 T Street, N.W. According to the affidavit and the testimony of Detective Nealis, a source had informed him that heroin was being stored in and sold from the premises of 908 T Street, N.W.³ The source explained that he or she went to the premises of 908 T Street, knocked on the door, was let into the house, and purchased a white powder from a black male "subject." Again, at trial, Detective Nealis testified that the "suspect" mentioned in the affidavit was believed to be a man named "Billy Akers." The detective further explained that the source was not described in the affidavit because, at that time, there were very few people entering and exiting the house, and the MPD was, therefore, concerned with shielding the identity and protecting the safety of the source.

At the time the officers executed the 1988 warrant, only Mr. Akers and a child were in the house. Mr. Akers was in the kitchen at the back of the house. As the officers entered the house from the rear door, Mr. Akers proceeded down the hallway, toward the front of the house, when he made a throwing motion toward an alcove. In the alcove, near the door to the basement, the officers found 145 quarters of heroin. Detective Nealis further testified that Mr. Akers provided the officers with a key to the basement, where they also found, among other things, a pit bull and a cocaine-based substance next to a letter addressed to Mr. Akers. As in 1984, Mr. Akers was acquitted of all charges brought as a result of the 1988 search.

Investigator Poirier, who also testified on behalf of the government, prepared the affidavit in support of the instant complaint. Although he was present during the August 12, 1988 search, he was not present at the time of the 1984 or 1986 searches but relied on that information in preparing his affidavit in support of the forfeiture.

Investigator Poirier corroborated Detective Nealis' description of the 1988 search. According to Poirier's affidavit, the search members recovered a 12-gauge shotgun, brand name Wards, serial # 76692; seven live rounds of 12-gauge shotgun shells; one clear plastic bag containing 145 rolled packets of white powder, a portion of which tested positive for heroin; one brown paper bag containing two packets of a beige rock-like substance, a portion of which field-tested positive for cocaine; one clear plastic bag containing approximately 13 grams of white powder, a portion of which field-tested positive for heroin; numerous pills; two marked bottles of a white powder, quinine; another ziplock bag of cocaine; and a police receipt made out to William Akers. The investigator further testified that at the time the search warrant was executed, Mr. Akers, who was standing within ten feet of a bag of heroin, was home with his eleven-year-old grandson.

Investigator Poirier also described a search of 908 T Street, N.W. which took place on February 20, 1986. According to his affidavit, as a result of this search, members of the Morals Division recovered one brown paper bag containing 20 bags of cocaine and 43 plastic bags of heroin. The Morals Division also seized one tinfoil package of heroin, one black plastic bag containing 19 Preludin, and one bag containing a small quantity of cannabis.

William Akers, also known as Billy, testified on his own behalf. He explained that he has nine children, all adults, the majority of whom have lived in his three-story house at one time or another. Six of his nine children have used drugs, but Gail, who is presently living at 908 T Street, N.W., Martha, and Toni have never used or distributed narcotics. In the past five years, his children, Toni, Martha, Gail, Kathy, Jeffrey, and Hayward, have lived at 908 T Street, N.W., but he testified that, for the most part, all of his children were permitted to come and go as they pleased. They all, at one time, had keys to claimant's house. Mr. Akers testified that he spends most of his time in his room on the second floor, reading or watching television and that although he has access to every room in the house, he does not make it a practice to go into their rooms.

Although Mr. Akers testified that he had never seen his children use drugs in his home and that if he had, he would have asked that they leave, he is certainly aware that many of his children have, at various times, used drugs. He pointed, in particular, to Kathy, who has spent much of her life incarcerated, whose children Tammy and Fran are now living at 908 T Street, N.W., whose key to the house was taken away in 1986, and who was asked to move sometime before August 1988 because she was a "nuisance around the neighborhood"; Jeffrey, who was convicted as a result of the search in 1986 and who was asked to leave Mr. Akers' house sometime after 1986; Gregory; and Hayward.

Mr. Akers further explained that he had no knowledge of the drugs that were recovered in 1984 until after the search was conducted, and he disputed Detective Nealis' testimony that he even had a driver's license in 1984. Similarly, Mr. Akers claimed that he only became aware that drugs were being stored in and sold from his home in 1986 after his son, Jeffrey, was arrested. Finally, Mr. Akers testified that he was unaware in 1988 that his home was being used for the facilitation of drug offenses; claimed that on August 12, 1988, Kathy and her friends had been in his home; suggested that Kathy may have brought the drugs into his home; but conceded that when the police executed the 1988 search warrant, he was standing approximately 15 feet from the alcove where heroin was found.

Tammy Evans, Mr. Akers' twenty-year-old granddaughter who has lived at 908 T Street, N.W. all of her life, also testified. She asserted that she has never used drugs and has never seen her grandfather use or distribute drugs. Ms. Evans also testified that she was present during the 1986 search but did not know the result of that search.

Finally, Gail, who has lived continuously at 908 T Street, N.W. since 1983 and who has helped to maintain the premises,...