United States of America v. One Parcel of Property Located at 867 County Road 227, Clanton, Chilton County, Alabama, with all appurtenances and improvements thereon

Filing 97

MEMORANDUM OPINION AND ORDER denying the 80 Motion for Partial Summary Judgment. Signed by Hon. Chief Judge Mark E. Fuller on 4/5/2010. (Attachments: # 1 Civil Appeals Checklist)(br, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION U N IT E D STATES OF AMERICA, ) ) P l a in tif f , ) v. ) ) O N E PARCEL OF PROPERTY LOCATED) A T 867 COUNTY ROAD 227, CLANTON,) C H IL T O N COUNTY, ALABAMA, and ) A ll Appurtenances and Improvements ) T h e re o n , ) ) D e f e n d a n t. ) ____________________________________ U N IT E D STATES OF AMERICA, P l a in tif f , v. E IG H T E E N THOUSAND FOUR H U N D R E D DOLLARS IN UNITED S T A T E S CURRENCY ($18,400), D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

C A S E NO. 2:07-cv-694-MEF

C A S E NO. 2:07-cv-1104-MEF

(W O - D O NOT PUBLISH)

M E M O R A N D U M OPINION AND ORDER In this lawsuit brought pursuant to 21 U.S.C. § 881(a)(7), Plaintiff United States of A m e ric a (hereinafter "Government") seeks forfeiture of one parcel of property which it a lle g e s was used to facilitate the manufacturing of marijuana and a sum of currency also s e iz e d from the property. Royce Williams (hereinafter "Decedent") and his wife Mara Lynn W illia m s (hereinafter "Williams"), owners and occupants of the property, filed claims of o w n e rs h ip for the parcel of real property. This case is now before the Court on the United

S ta te s' Motion for Partial Summary Judgment (Doc. # 80). After careful consideration of th e arguments of counsel, the relevant case law and the record as a whole, the Court finds th a t the motion for summary judgment is due to be DENIED. J U R IS D IC T I O N AND VENUE Ju risd ictio n is proper pursuant to 28 U.S.C. §§ 1345 and 1355.1 Venue is proper in th is district pursuant to 28 U.S.C. § 1395 and 21 U.S.C. § 881(j) because the act or omissions g iv in g rise to the forfeiture occurred in this district and the property is located within this d istric t. F A C T S AND PROCEDURAL HISTORY O n July 31, 2007, the United States commenced this in rem action, pursuant to 21 U .S .C . § 881(a)(7), seeking the forfeiture of the residence and surrounding lands located at 8 6 7 County Road 227, Clanton, Chilton County, Alabama (hereinafter "Parcel"). It does so o n the grounds that the property was used or was intended to be used, to commit, or to f a cilita te the commission of a violation of 21 U.S.C. § 841(c). On December 19, 2007, the U n ite d States commenced a second in rem action, pursuant to 21 U.S.C. § 881(a)(7), seeking th e forfeiture of the $18,400 in United States Currency, on the grounds that the currency

Pursuant to 28 U.S.C. § 1345, "the [federal] district courts shall have original ju ris d ic tio n of all civil actions, suits or proceedings commenced by the United States . . ." In addition, 28 U.S.C. § 1355(a) provides that "the [federal] district courts shall have original jurisd iction , exclusive of the courts of the States, of any action or proceeding for the recovery o r enforcement of any fine, penalty, or forfeiture, pecuniary or otherwise, incurred under any A c t of Congress, except matters within the jurisdiction of the Court of International Trade u n d e r section 1582 of this title." 2

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c o n stitu te d monies furnished, or intended to be furnished, in exchange for controlled s u b s ta n c es , or represents proceeds of trafficking in controlled substances or was used or in te n d e d to be used to facilitate violations of 21 U.S.C. §§ 801 et seq. The two cases were c o n so lid a te d . Both Williams and Decedent filed verified claims. Viewing the facts in the lig h t most favorable to Williams, the record before the Court establishes the following:2 O n July 27, 2007, law enforcement agents executed a search warrant on the Parcel. A s a result of this search law enforcement agents seized approximately 408 marijuana plants, 3 plastic tub containers of dried marijuana, $18,400 in United States currency, firearms, w e ig h t scales of a type used in drug trafficking, items used in marijuana cultivation, and drug p a ra p h e rn a lia . On October 1, 2008, a grand jury returned a three count Indictment against Decedent c h a rg in g him with manufacturing more than 100 marijuana plants in violation of 21 U.S.C. § 841(a)(1); possession of a firearm in furtherance of a drug trafficking crime in violation o f 18 U.S.C. § 924(c)(1)(A)(I); and possession with intent to distribute a mixture or su b stan ce containing a detectable amount of marijuana in violation of 21 U.S.C. § 841(a)(1).3 D e c ed e n t proceeded to trial on the charges against him. At trial he testified that he had g ro w n the marijuana for a number of years, and he admitted smoking marijuana regularly.

This recitation of "facts" is based upon the Verified Complaint (Doc. # 1), and the ev iden c e submitted by the parties in support of and opposition to the motion for summary ju d g m e n t.
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This case is styled, United States v. Williams, 2:08-cr-196-MEF. 3

W h ile the jury was deliberating and before a verdict was reached, Decedent took his own life. A suggestion of death was filed in this action. No motion for substitution was made and c o n se q u e n tly, Decedent's claims were dismissed from this action. Williams' claims remain, a n d she contends that she is an innocent owner of the defendant property. SUMMARY JUDGMENT STANDARD U n d e r Federal Rule of Civil Procedure 56(c), summary judgment is appropriate "if th e pleadings, depositions, answers to interrogatories, and admissions on file, together with th e affidavits, if any, show that there is no genuine issue as to any material fact and that the m o v in g party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 3 1 7 , 322 (1986). The party asking for summary judgment "always bears the initial

r e sp o n s ib i lity of informing the district court of the basis for its motion, and identifying those p o rtio n s of `the pleadings, depositions, answers to interrogatories, and admissions on file, to g e th e r with the affidavits, if any,' which it believes demonstrate the absence of a genuine is s u e of material fact." Id. at 323. The movant can meet this burden by presenting evidence s h o w in g there is no dispute of material fact, or by showing the non-moving party has failed to present evidence in support of some element of its case on which it bears the ultimate b u rd e n of proof. Id. at 322-23. O n c e the moving party has met its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by [his] own affidavits, or by the `depositions, answers to in t e rr o g a to r ie s , and admissions on file,' designate `specific facts showing that there is a

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g e n u in e issue for trial.'" Id. at 324. To avoid summary judgment, the nonmoving party " m u s t do more than simply show that there is some metaphysical doubt as to the material fa c ts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (e m p h a s is added). A plaintiff must present evidence demonstrating that he can establish the b a s ic elements of his claim. Celotex, 477 U.S. at 322. A court ruling on a motion for su m m a ry judgment must believe the evidence of the non-movant and must draw all ju s tif ia b le inferences from the evidence in the non-moving party's favor. Anderson v. Liberty L o b b y , Inc., 477 U.S. 242, 255 (1986). After the nonmoving party has responded to the m o tio n for summary judgment, the court must grant summary judgment if there is no genuine is s u e of material fact and the moving party is entitled to judgment as a matter of law. See F ed . R. Civ. P. 56(c). D IS C U S S IO N B y its motion, the Government seeks a grant of partial summary judgment recognizing th e forfeitability of the Parcel.4 Additionally, the Government seeks a ruling on the "legal in te re st of the United States and the legal interest of Claimant Mara Lynn Williams in the D e f e n d a n t real property under federal forfeiture law." (Doc. # 81). The Court will first a d d re ss whether the Government has established, based upon the undisputed facts, that it is e n title d to judgment as a matter of law on the issue of forfeitability.

The motion for summary judgment only addresses the forfeitability of the Parcel and d o e s not address the forfeitability of the currency. 5

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I. Forfeitability A. Civil Asset Forfeiture Reform Act

O n April 25, 2000, Congress passed the Civil Asset Forfeiture Reform Act of 2000 (h e re in a f te r "CAFRA"), Pub. L. No. 106-185, 114 Stat. 202, to address concerns associated w ith federal civil forfeitures. Since the Government commenced this action after August 23, 2 0 0 0 , the date on which the CAFRA became effective, CAFRA applies to this case. C A F R A overhauled the procedures for civil judicial forfeiture proceedings. See 18 U .S .C . § 983. Significantly, the Government now has the burden of proving by a

p re p o n d e r a n c e of the evidence that the property is subject to forfeiture. See 18 U.S.C. § 9 8 3 (c )(1 ); also United States v. One 1991 Chevrolet Corvette, 2005 WL 1846996, * 4 (S.D. A la. 2005) (citing 18 U.S.C. § 983(c)(1)). Once the Government has shown that the property is subject to forfeiture, "the burden of proof shifts to the claimant to show, by a p re p o n d e ra n c e of the evidence that the property is not subject to forfeiture." United States v . Cleckler, 270 F.3d 1331, 1334 (11th Cir. 2001) (citation omitted). "The claimant may m e e t this burden either by rebutting the government's evidence or by showing that the c la im a n t is an innocent owner." Id. Williams has claimed that she is an innocent owner of b o th the cash seized and the Parcel. B. G o v e rn m e n t's Burden of Proof

A t the outset, the Court first must determine whether the Government has met its in itia l burden of proof to establish that the property is subject to forfeiture. Under the

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CA FRA , (1) (2 ) the burden of proof is on the Government to establish, by a p r e p o n d e ra n c e of the evidence, that the property is subject to forfeiture. the Government may use evidence gathered after the filing of a c o m p l a in t for forfeiture to establish, by a preponderance of the e v id e n c e, that property is subject to forfeiture; and if the Government's theory of forfeiture is that the property was used to commit or facilitate the commission of a criminal offense, or was in v o lv e d in the commission of a criminal offense, the Government shall e sta b lish that there was a substantial connection between the property a n d the offense.

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1 8 U.S.C. § 983(c) (emphasis added). The Government alleges that the Parcel is subject to f o rf e itu re pursuant to 21 U.S.C. § 881(a)(7), which provides for forfeiture of: A ll real property, including any right, title and interest (including any leasehold in te re st in the whole of any lot or tract of land and any appurtenances or im p ro v e m e n ts), 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 subchapter p u n ish a b le by more than one year's imprisonment. 2 1 U.S.C. § 881(a)(7). "To obtain a civil forfeiture, the government must establish by a p rep o n d era n ce of evidence `a substantial connection between the property and the offense.'" U .S . v. 3402 53rd Street W., Bradenton, FL, 178 Fed. Appx. 946, 947 (11th Cir. 2006) (citing 1 8 U.S.C. § 983(c)(1) & (3)). Indeed, if the Government's theory of forfeiture is that the property was used to c o m m it or facilitate the commission of a criminal offense, or was involved in the commission of a criminal offense, the Government shall establish that there w a s a substantial connection between the property and the offense. 1 8 U.S.C. § 983(c)(3). "Whether the government has shown probable cause for forfeiture is a question of law." United States v. Cleckler, 270 F.3d 1331, 1334 (11th Cir. 2001).

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(c ita tio n omitted). "Probable cause in this context is a reasonable ground for belief: s o m e th in g more than mere suspicion but less than prima facie proof." Id. (citation omitted). O n c e the Government establishes probable cause, the burden of proof shifts to the claimants to show by a preponderance of the evidence that the property is not subject to forfeiture. Id. T h e claimant may do so either by rebutting the government's evidence or by showing that s h e is an "innocent owner" as set forth in 18 U.S.C. § 983(d). Id. There is no dispute in this case that 408 marijuana plants were discovered on the P a rc e l. (Doc. # 1 at ¶ 9). See Barker v. Norman, 651 F.2d 1107, 1115 (5th Cir. 1981) (if v e r if ie d complaint satisfies the other standards for affidavits as set out in Fed. R. Civ. P. 5 6 (e ), it shall be considered to have an effect equivalent to that of an affidavit).5 In addition, t h e re is no dispute that Decedent testified that he grew the marijuana on the Parcel. (Doc. # Doc. # 81-5). Nevertheless, the Court is compelled to find that the Government has not e sta b lis h e d its initial burden that there is probable cause to believe that a substantial c o n n e ctio n exists between the Parcel and the felony drug offense alleged in the Verified C o m p la in t. For this reason, the Government's motion for partial summary judgment is due to be DENIED as to this contention. II. Legal Interest in the Property By its motion, the Government asks this Court to find that it has a "vested legal

In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), th e Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit is s u e d prior to October 1, 1981. 8

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in te re st" in the Parcel under the applicable federal law. In support of this argument, the G o v e rn m e n t contends that federal law preempts State law in an in rem civil forfeiture p r o c e ed in g . The Government contends that it is entitled to the forfeiture of the entire parcel a b se n t proof by a preponderance of the evidence that Williams is an innocent owner of one h a lf of the property. The Court does not agree with the Government's analysis. The Government's argument is predicated on legal authorities which do not support th e outcome the Government urges in this case. The Government relies on cases applying c rim in a l forfeiture provisions rather than civil forfeiture provisions. See, e.g. United States v . Morgan, 224 F.3d 339 (4th Cir. 2000) (addressing criminal forfeiture under 21 U.S.C. § 8 5 3 ); United States v. Kennedy, 201 F.3d 1324 (11th Cir. 2000) (addressing criminal f o rf e itu re under 18 U.S.C. § 982). The Kennedy case itself contains an extended discussion o f significant differences between criminal and civil forfeiture actions. 201 F.3d at 133-34. T h e burden of proof for the Government is different in civil forfeiture cases than it is in crim inal ones. Moreover, the innocent owner exception provided in the civil forfeiture

c o n te x t does not exist in criminal forfeitures. See United States v. Fleet, 498 F.3d 1225, 1 2 3 1 (11th Cir. 2007). "Civil forfeiture acts in rem against the seized property itself, but c r im in a l forfeiture acts in personam as a punishment against the party who committed the c rim in a l acts." Id. (citing United States v. Gilbert, 244 F.3d 888, 919 (11th Cir. 2001). In a criminal forfeiture only the property being forfeited is that which belongs to the criminal d e f en d a n t. 498 F.3d at 1232.

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T h e Government also cites two inapposite cases addressing the intersection between f e d e ra l law and the homestead protection provided under the state law: United States v. Lot 5 Fox Grove, Alachua County, Fla., 23 F.3d 359 (11th Cir. 1994) and Smith v. State of A la b a m a , 176 B.R. 221 (N.D. Ala. 1995)6 . Those cases involve a direct conflict between the re q u ire m e n ts of federal law and the proscriptions in state law. For example, Lot 5 involved th e United States Government's attempt to seek a civil forfeiture of a piece of property which u n d e r the Florida Constitution could not be forfeited. 23 F.3d at 360-63. The Eleventh C irc u it found that federal law preempted the Florida provision which directly conflicted with it. Id. at 363. Importantly, this case recognizes a difference between borrowing state law d e f in in g ownership interests for the purposes of examining an innocent owner defense to a f o rf e itu re action, which is appropriate and seeking to use a homestead exemption created by s ta te law in an attempt to defeat a civil forfeiture. Id. at 363 n.7. The Government, here, c o n te n d s that these cases establish that while state law defines the property interests a c la im a n t has, federal law determines whether the property interests are forfeitable for c o m m iss io n of a federal crime. The Court cannot say that this issue is seriously disputed in th is case. Indeed, Williams cites the Eleventh Circuit case which more clearly established th is principal, a case cited in Lot 5. That case is United States v. One Single Family

The Smith case relies upon the Lot 5 case and addresses a bankruptcy court's a t t e m p t to address the intersection between a state law forfeiture action and the Alabama h o m e ste a d exemption. As this Court reads this case, the Court applied Alabama law to re so lv e a conflict between provisions of Alabama law. The Court does not find this opinion o f assistance in any way in resolving the issues before it. 10

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R e sid e n c e with Out Buildings Located at 15621 S.W. 209th Avenue, Miami, Fla., 894 F.2d 1 5 1 1 (11th Cir. 1990). The sole remaining federal case the Government cites with respect to this argument is United States v. Real Property Described in Deeds Recorded at B o o k /P a g e 639/846, 639/840, 639/834, 639/827, and 610/727 Henderson County Registry & Ins. Proceeds, 962 F. Supp. 734 (W.D.N.C. 1997). This case is neither binding precedent, n o r persuasive authority for a disputed issue in this matter. The sole Alabama case cited is D o u g h e rty v. Hovater, 447 So. 2d 185, 186 (Ala. 1984) (a case involving issues of s u rv iv o rs h ip relating to stock shares), but the cited portion of that case is lifted directly from N u n n v. Keith, 268 So. 2d 792 (Ala. 1972), a case on which Williams relies. Assuming that the Government is able to establish the initial probable cause re q u ire m e n t as set forth in early discussion in this Opinion, the burden will shift to Williams to show that she is an innocent owner. If she fails, the entire property will be subject to f o rf e itu re . If she succeeds, this Court is compelled to follow the Eleventh Circuit's holding in One Single Family Residence, 894 F.2d 1511. This case explicitly provides that 21 U.S.C. § § 881(a) and 881(h) must be read in tandem such that any right, title and interest in the p ro p e rty that vests in the United States upon commission of the unlawful act compromises o n ly so much of the property as is `subject to forfeiture' under the appropriate d iv is io n of subsection (a). The words of 881(a)(7) do not support the g o v e rn m e n t's assertion that the innocent owner's interest amounts to whatever is left over after the government has effected the forfeiture. Instead the g o v e rn m e n t obtains through forfeiture whatever interest remains in the p ro p e rty after the innocent owner's interest has been excepted.

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Id . at 1516. The Eleventh Circuit further found that where, under the applicable state law, b o th spouses had all right, title and interest in the property by virtue of being tenants by the e n tire ty under Florida law, there was no interest that existed in the subject property which c o u ld be forfeited to the government at that time. Id. It could not be clearer, from this b in d in g precedent which the Government neglects to discuss or to attempt to distinguish, that s ta te law determines the property interests which exist. It is undisputed that the deed which transferred ownership of the Parcel to Williams a n d the Decedent intended that they own the property as joint tenants with rights of s u r v i v o r s h ip . It is equally clear under Alabama law that joint tenants with rights of su rv iv o rsh ip means that each tenant was seized of some fractional share while at the same time each o w n e d the whole. The most significant feature of such a tenancy was the right o f survivorship. When one joint tenant died, the deceased's share was owned b y the surviving tenants jointly, until only one remained, who then owned the f e e. The last survivor took nothing by survivorship as he had always owned th e whole. The deaths of the other joint tenants merely removed impediments to the survivor's complete ownership. Nunn v. Keith, 268 So. 2d 792, 793 (Ala. 1972). The Alabama Supreme Court has made it p la in that after having been temporarily abolished, this form of ownership exists "with all of th e incidents and attributes that existed at common law" so long as the intent to have the right o f survivorship is clear. Id. at 795-797. The deed at issue contains that requisite clear intent to have the right of survivorship. Accordingly, before the death of her husband, Williams o w n e d the whole with her husband's interest as the sole impediment to her sole ownership.

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S e e generally Nunn, 268 So. 2d 792. After the death of her husband, Williams owned the P a r c e l in fee simple. Id. This means that if Williams is an innocent owner, she is an in n o c e n t owner of the entire property and nothing can be forfeited to the Government. See 8 9 4 F.2d at 1518. To the extent that the Government sought a partial summary judgment on s o m e different understanding of the law than this, its motion is due to be DENIED. CONCLUSION F o r the foregoing reasons, it is hereby ORDERED that the United States' Motion for P a rtia l Summary Judgment (Doc. # 80) is DENIED. D O N E this the 5th day of April, 2010. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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