US v. TWO PARCELS OF PROP. AT 2730 HIGHWAY 31

• Decision Date: 10 October 1995
• Docket Number: Civ. A. No. 94-D-608-N.
• Citation: 909 F. Supp. 1450
• Parties: UNITED STATES of America, Plaintiff, v. TWO PARCELS PROPERTY LOCATED AT 2730 HIGHWAY 31, JEMISON, CHILTON COUNTY, ALABAMA, With All Appurtenances and Improvements Thereon; Account No. XX-XXXX-XXXX in the Name of "Gene Martin Auto Sales", Located at the First Alabama Bank, Thorsby, Alabama; Five Thousand Six Hundred Thirty-One Dollars ($5,631) in United States Currency; Checks and Money Order in the Amount of Three Thousand Two Hundred Seventy-Two and 74/100 Dollars ($3,272.74) More Particularly Described Hereinafter, Defendant.
• Court: U.S. District Court — Middle District of Alabama

909 F. Supp. 1450

UNITED STATES of America, Plaintiff, v. TWO PARCELS PROPERTY LOCATED AT 2730 HIGHWAY 31, JEMISON, CHILTON COUNTY, ALABAMA, With All Appurtenances and Improvements Thereon; Account No. XX-XXXX-XXXX in the Name of "Gene Martin Auto Sales", Located at the First Alabama Bank, Thorsby, Alabama; Five Thousand Six Hundred Thirty-One Dollars ($5,631) in United States Currency; Checks and Money Order in the Amount of Three Thousand Two Hundred Seventy-Two and 74/100 Dollars ($3,272.74) More Particularly Described Hereinafter, Defendant.

Civ. A. No. 94-D-608-N.

United States District Court, M.D. Alabama, Northern Division.

October 10, 1995.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

John T. Harmon, Assistant U.S. Attorney, Redding Pitt, U.S. Attorney, for plaintiff.

William P. Boggs, William R. Hill, Jr., Clanton, AL, for claimants Quida Martin, Margaret Martin and Douglas Eugene Martin.

Ronald Cooper Dhattuck, Tuscaloosa, AL, for claimant First Alabama Bank.

MEMORANDUM OPINION AND ORDER

DE MENT, District Judge.

Before the court is the plaintiff United States' motion for summary judgment filed January 18, 1995. The claimants, Douglas Eugene Martin, Weida Martin and Margaret C. Martin,¹ responded in opposition on February 8, 1995, to which the United States replied on March 10, 1995. In its reply, the United States also moved the court to strike the affidavit of claimant Douglas Eugene Martin. Thereafter, the claimants responded to the United States' reply and motion to strike on April 7, 1995. After careful consideration of the arguments of counsel, the relevant case law and the record as a whole, the court finds that the United States' motion for summary judgment as to Douglas Eugene Martin's claim and the United States' motion to strike the affidavit of Douglas Eugene Martin are due to be granted.

The United States concedes that claimants Margaret and Weida Martin have raised genuine issues as to their asserted innocent owner defenses so that the ultimate determination of whether their defenses are legitimate is an issue for the jury. Since genuine issues exist as to material facts concerning these claims, the court will not inquire further into these claims, and the United States' motion for summary judgment as to Margaret and Weida Martin's claims is due to be denied.

JURISDICTION & VENUE

Jurisdiction is proper under 21 U.S.C. § 801 et seq.² Personal jurisdiction and venue are not contested.

SUMMARY JUDGMENT STANDARD

On a motion for summary judgment, the court is to construe the evidence and factual inferences arising therefrom in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Summary judgment can be entered on a claim only if it is shown "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). As the Supreme Court has explained the summary judgment standard:

The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, 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. In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The trial court's function at this juncture is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (citations omitted). A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; see also Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir.1989).

The party seeking summary judgment has the initial burden of informing the court of the basis for the motion and of establishing, based on relevant "portions of `the pleadings, depositions, answers to interrogatories, and admissions in the file, together with affidavits, if any,'" that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. Once this initial demonstration under Rule 56(c) is made, the burden of production, not persuasion, shifts to the nonmoving party. The nonmoving party must "go beyond the pleadings and by his 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, 477 U.S. at 324, 106 S.Ct. at 2553; see also Fed. R.Civ.P. 56(e).

In meeting this burden the nonmoving party "must do more than simply show that there is a metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). That party must demonstrate that there is a "genuine issue for trial." Fed.R.Civ.P. 56(c); Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. An action is void of a material issue for trial "where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356; see also Anderson, 477 U.S. at 249, 106 S.Ct. at 2510.

FINDINGS OF FACTS

The United States filed this civil forfeiture action on May 20, 1994, "seeking forfeiture of the defendant property located at 2730 Highway 31, Jemison, Chilton County, Alabama, with all appurtenances and improvements thereon, and a certain bank account and cash and financial instruments." Br. in Supp. of Mot. for Summ. J. at 1-2. The United States avers that the defendant properties are subject to the forfeiture provisions of 21 U.S.C. §§ 881(a)(6) and (7). In support thereof, the United States contends that said bank account, cash and financial instruments represent proceeds of trafficking in controlled substances and were used or intended to be used to facilitate a violation of Title II of the Controlled Substances Act, 21 U.S.C. § 801 et seq. Id. at 2. The United States further contends that said real properties were used or intended to be used in any manner or part to commit or to facilitate the commission of a violation of 21 U.S.C. § 801 et seq., and which is a violation that is punishable by imprisonment of more than one year. Id. However, claimant Douglas Eugene Martin (hereafter "Mr. Martin") responds that the defendant properties were not connected to illegal drug activity.

The United States alleges that the following facts and circumstances support the seizure and forfeiture of the defendant properties. On or about May 3, 1994, a co-operating individual (hereafter "CI") informed local authorities that during past months, he had been associated with and present during numerous transactions in which Mr. Martin conducted illegal transactions involving controlled substances. Within the last two years, the CI allegedly purchased controlled substances numerous times from Eula Webb at her residence in Birmingham, Alabama. The CI obtained either cash or check from Mr. Martin to be used as payment or partial payment for many of these illegal purchases. These checks were drawn on the Gene Martin Auto Sales Account (the defendant account), made payable to the CI and often noted as being issued for the purchase of auto parts or other automotive equipment. However, the United States contends that the CI never sold any such items to Mr. Martin. The arrangements for these purchases and the delivery of the illegally purchased controlled substances were almost always made either at Mr. Martin's home (defendant parcel two) or at the Gene Martin Auto Sales Lot (defendant parcel one).

On or about May 5, 1994, the CI again met with Mr. Martin at the Gene Martin Auto Sales Lot, and thereafter, Mr. Martin gave the CI $350.00 cash for the purchase of 100 Lortab/Lorcet units from the Birmingham source. Later that same date, the CI again met with Mr. Martin at the Gene Martin Auto Sales Lot and informed Mr. Martin that he had been unable to make the Lortab/Lorcet purchase but that any amount of Lortab/Lorcet units could be purchased on May 9, 1994. At that time, the CI returned the $350.00 cash which he had received earlier. Mr. Martin and the CI discussed the purchase of a bottle of 500 units of Lortab/Lorcet, with Mr. Martin purchasing 250 units. These meetings were monitored and the CI was under the control of law enforcement officials.

On or about May 9, 1994, the CI met with Mr. Martin at Gene Martin Auto Sales Lot. At that time, Mr. Martin allegedly gave the CI a check, drawn on the Gene Martin Auto Sales account in the amount of $750.00, noted as being issued for an "Engine for Cougar." The delivery of the Lortab/Lorcet was also discussed. Later that same day, the CI delivered 250 units of Lortab/Lorcet (furnished to him by law enforcement officials) to Mr. Martin at his home. Again, these meetings were monitored and the CI was under the control of law enforcement officials.

On or about May 9, 1994, a search warrant was executed at Mr. Martin's home. While law enforcement officials were entering the premises, Mr. Martin allegedly flushed most of the 250 Lortab/Lorcet units received from the CI down the commode. However, authorities were able to recover approximately 20 Lortab/Lorcet units from the bathroom area and 1 Lortab/Lorcet unit was still in a bag. Law enforcement officials recovered approximately $5,134.68 in checks and $5,631.00 in cash, which were...