US v. TWELVE THOUSAND FIVE HUNDRED EIGHTY-FIVE DOLLARS.

• Court: U.S. District Court — District of Minnesota
• Writing for the Court: MacLAUGHLIN
• Citation: US v. TWELVE THOUSAND FIVE HUNDRED EIGHTY-FIVE DOLLARS., 669 F. Supp. 939 (D. Minn. 1987)
• Decision Date: 22 September 1987
• Docket Number: No. CIVIL 4-85-693,CIVIL 4-87-285.,CIVIL 4-85-693
• Parties: UNITED STATES of America, Plaintiff, v. TWELVE THOUSAND FIVE HUNDRED EIGHTY-FIVE AND NO/100THS DOLLARS ($12,585.00) IN U.S. CURRENCY, Defendant. UNITED STATES of America, Plaintiff, v. PREMISES KNOWN AS 3639 SECOND STREET, N.E., MINNEAPOLIS, MINNESOTA, a parcel of real property and all appurtenances thereto, legally described as Lot 25, Block 110, Columbia Heights Addition to Minneapolis, Minnesota, and any and all proceeds from the sale or transfer of such property, Defendant.

669 F. Supp. 939

UNITED STATES of America, Plaintiff, v. TWELVE THOUSAND FIVE HUNDRED EIGHTY-FIVE AND NO/100THS DOLLARS ($12,585.00) IN U.S. CURRENCY, Defendant.

UNITED STATES of America, Plaintiff, v. PREMISES KNOWN AS 3639 SECOND STREET, N.E., MINNEAPOLIS, MINNESOTA, a parcel of real property and all appurtenances thereto, legally described as Lot 25, Block 110, Columbia Heights Addition to Minneapolis, Minnesota, and any and all proceeds from the sale or transfer of such property, Defendant.

Nos. CIVIL 4-85-693, CIVIL 4-87-285.

United States District Court, D. Minnesota, Fourth Division.

September 22, 1987.

Jerome G. Arnold, U.S. Atty., and James E. Lackner, Asst. U.S. Atty., Minneapolis, Minn., for U.S.

John W. Lundquist, Peter Thompson, Robert J. Sorensen, Thompson & Lundquist, Minneapolis, Minn., for David Freeman.

John R. Wheaton, Mackall, Crounse & Moore, Minneapolis, Minn., for TCF Banking & Sav., F.A.

MEMORANDUM AND ORDER

MacLAUGHLIN, District Judge.

This matter is before the Court on plaintiff's motion for summary judgment and claimant's cross motion for summary judgment.

FACTS

This action involves forfeiture proceedings under 21 U.S.C. §§ 881(a)(6) and (7) instituted by the United States against certain property, namely $12,585 in currency and real property located at 3639 Second St. N.E. in Minneapolis, Minnesota belonging to David Freeman and allegedly used to facilitate Freeman's drug activities. Freeman has pled guilty to distribution of cocaine. Jurisdiction is proper under 28 U.S.C. §§ 1345 and 1355.

The investigation which led to Freeman's arrest and conviction began with a Ramsey County undercover operation into the drug activities of Anthony Bruzek. In January 1985 Bruzek twice sold cocaine to Stanley Johnson, a DEA Task Force undercover officer. Johnson Affidavit par. 4, 5. On February 6, 1983 Bruzek agreed to sell Johnson three ounces of cocaine the following day. Bruzek then phoned his source, David Freeman, and arranged to pick up two ounces of cocaine to which Bruzek would add an ounce of "cut" in order to complete the sale. Bruzek Aff. par. 6. Early on the morning of February 7, 1985 officers, including DEA Task Force member Seth Williams, established surveillance of Bruzek's residence, then followed Bruzek to a residence in Northeast Minneapolis which the officers believed to be either 3639 or 3637 Second Street Northeast. Williams Aff. par. 8, 10, 11. Bruzek entered the house where Freeman already had two ounces of cocaine weighed out on a scale; Bruzek then made an $1,800 down payment on the cocaine and returned home with the cocaine. Williams Aff. par. 12, Bruzek Aff. par. 7-8. Bruzek then left home, met Johnson at a Texaco gas station in Lino Lakes, Minnesota, and sold him the three ounces of cocaine in return for $7,200. Johnson Aff. par. 9.

After the transaction, Bruzek and his companion, Daniel Miller, were arrested. Johnson Aff. par. 10. After his arrest, Bruzek provided Johnson with a description of the residence in Northeast Minneapolis where his cocaine source lived which officers determined to be 3639 Second St. N.E., Minneapolis, Minnesota. Johnson Aff. par. 11, Williams Aff. par. 17. During a subsequent search of Bruzek's home on February 7, 1985, Bruzek's wife told Johnson that Bruzek's source was Freeman. Johnson Aff. par. 12.

On February 7, 1985 officers of the Hennepin County Sheriff's Department obtained and executed a state search warrant for 3639 Second St. N.E., Minneapolis, Minnesota in connection with suspected drug trafficking by Freeman. Williams Aff. par. 18. Freeman was one of three occupants of the house at the time of the search. During the search, $12,585 in U.S. currency was found in the pocket of a sportscoat which was hanging in a closet in Freeman's bedroom. Williams Aff. par. 20. Intermingled in the $12,585 of currency was $250 of official government funds used in Johnson's purchases of cocaine from Bruzek in January 1985. Johnson Aff. par. 15, Williams Aff. par. 21. The following eleven items were also found during the search:

A. A Sterling .380, clip loaded automatic handgun found on a coffee table in the living room.

B. An unloaded .9mm. semi-automatic pistol in a holster found in David Freeman's bedroom.

C. A loaded .38 caliber revolver found in David Freeman's bedroom.

D. Live and expended ammunition in David Freeman's bedroom.

E. An O'Haus triple beam scale.

F. A covered bowl containing 100 m.g. of white powder which was analyzed and found to be cocaine.

G. A Deering brand sifting device with a powder residue which was analyzed and found to be cocaine.

H. Three bottles labeled Inositol.

I. A baggie containing 8.5 g of white powder which was analyzed and found to be 16% cocaine as the free base.

J. A baggie with a balance pan, spoon, straw, razor blade and a bag with 1.5 g of white powder which was analyzed and found to be cocaine.

K. Miscellaneous drug paraphernalia and drug notes.

Williams Aff. par. 22. Also found during the search was a Certificate of Title which indicated that Freeman owned the house at 3639 Second St. N.E. Williams Aff. par. 23.

On February 8, 1985 criminal complaints were filed against Freeman, Bruzek and Miller alleging violations of 21 U.S.C. §§ 841(a) and 846. On March 6, 1985 the complaint against Freeman was dismissed on plaintiff's motion pending further investigation of issues. On April 1, 1985 Bruzek pled guilty to violations of 21 U.S.C. §§ 841(a)(1) and 846. Daniel Miller was found guilty by jury trial of a violation of 21 U.S.C. § 841(a)(1).

On May 14, 1985 plaintiff filed a verified complaint for forfeiture against defendant currency alleging that it was subject to forfeiture pursuant to 21 U.S.C. § 881(a)(6) (an amended complaint was filed on April 30, 1987). On June 13, 1985 Freeman filed a claim for the defendant currency. The forfeiture proceedings subsequently were stayed by agreement of the parties pending the outcome of criminal proceedings involving Freeman who ultimately was indicted on March 12, 1986 for violation of 21 U.S.C. §§ 841(a)(1) and 846. Subsequently Freeman pled not guilty and filed a motion to suppress the evidence seized at his home. This motion was denied on April 18, 1986. On May 9, 1986 Freeman entered a conditional guilty plea to violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 on the condition that he could appeal the denial of his suppression motion. Forfeiture proceedings were again stayed pending a decision on Freeman's appeal. On December 17, 1986 the United States Court of Appeals for the Eighth Circuit affirmed Freeman's conviction and upheld the denial of the suppression motion. United States v. Freeman, 807 F.2d 149 (8th Cir.1986).

On March 26, 1987 the Magistrate issued a seizure warrant for seizure of the defendant real property based on an affidavit of Williams who alleged the property was subject to forfeiture pursuant to 21 U.S.C. § 881(a)(7). Plaintiff filed a verified complaint for forfeiture against defendant real property on March 30, 1987; the property was seized April 3, 1987. Claims for the defendant real property have been filed by Freeman and TCF Banking and Savings, F.A., as mortgage holder.¹

Plaintiff now brings this motion for summary judgment as to plaintiff's complaint. Claimant brings a cross motion for summary judgment.

DISCUSSION

A movant is not entitled to summary judgment unless the movant can show that no genuine issue exists as to any material fact. Fed.R.Civ.P. 56(c). In considering a summary judgment motion, a court must determine whether there are any genuine factual 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, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The role of a court is not to weigh the evidence but instead to determine whether, as a matter of law, a genuine factual conflict exists. AgriStor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir.1987). In making this determination, the Court is required to view the evidence in the light most favorable to the nonmoving party and to give that party the benefit of all reasonable inferences that can be drawn from the facts. AgriStor Leasing, 826 F.2d 732, 734 (8th Cir.1987). When a motion for summary judgment is properly made and supported with affidavits or other evidence as provided in Fed.R.Civ.P. 56(c), then the nonmoving party may not merely rest upon the allegations or denials of the party's pleading, but must set forth specific facts, by affidavits or otherwise, showing that there is a genuine issue for trial. Lomar Wholesale Grocery, Inc. v. Dieter's Gourmet Foods, Inc., 824 F.2d 582, 585 (8th Cir.1987). Moreover, summary judgment must be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).

I. $12,484 in Currency

Title 21 U.S.C. § 881(a)(6) authorizes the forfeiture of "all moneys ... furnished or intended to be furnished by any person in exchange for a controlled substance ..., all proceeds traceable to such an exchange, and all moneys ... used or intended to be used to facilitate" illegal drug activities. Under 19 U.S.C. § 1615, which is made applicable here by 21 U.S.C. § 881(d), the government must initially show probable cause for the institution of forfeiture proceedings. Once probable cause is established, claimant bears the burden of proving the property was not used in violation of the law. United States v. $13,000 in United States Currency, 733 F.2d 581, 584 (8th Cir.1984); see also One Blue 1977 AMC Jeep CJ-5 v. United States, 783 F.2d 759, 761 (8th Cir.1986). Probable cause in a forfeiture proceeding is "reasonable ground for belief of guilt, supported by less than prima facie proof but...