USA v. 400 Roper Street, Morganton, North Carolina

Filing 34

ORDER granting in part and denying in part 31 Motion for Summary Judgment. IT IS FURTHER ORDERED that within thirty (30) days of the entry ofthis Order, the Plaintiff shall take such further action as is required toprosecute this action with respect to Harold Eugene Patton and RoyNelson Patton, Sr. Signed by District Judge Martin Reidinger on June 16, 2011. (jhg)

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:10cv18

UNITED STATES OF AMERICA, )
)
Plaintiff,
)
)
vs.
)
)
400 ROPER STREET,
)
Morganton, North Carolina,
)
being real property as
)
described in a deed at Book
)
431, Page 468, of the Registry )
of Burke County, North
)
Carolina, together with the
)
residences, and all
)
appurtenances, improvements, )
and attachments thereon,
)
)
Defendant.
)
)

ORDER

THIS MATTER is before the Court on the Government’s Motion for
Summary Judgment on Claim of John Wilson Patton and for Default
Judgment [Doc. 31]. For the reasons set forth herein, the Government’s
Motion for Summary Judgment will be granted, and the Motion for Default
Judgment will be denied.

I.

PROCEDURAL BACKGROUND
On January 15, 2010, the Government initiated this civil forfeiture

action pursuant to 18 U.S.C. §§ 981, 983, 985, and 21 U.S.C. § 881
against the defendant property. [Doc. 1]. As grounds for forfeiture, the
Verified Complaint alleges in part that the defendant property “was used or
intended to be used, in any manner or part, to commit, or to facilitate”
illegal drug trafficking in violation of 21 U.S.C. §§ 801, et seq. [Id. at ¶35].
The Government posted notice of this civil forfeiture action for a
period of 30 consecutive days, beginning on January 23, 2010, as required
by Rule G(4)(a)(iv)(C) of the Supplemental Rules for Admiralty or Maritime
Claims and Asset Forfeiture Actions. [Doc. 4]. Additionally, the
Government provided direct notice to John Wilson Patton, Harold Eugene
Patton, Roy Nelson Patton, Sr., and Barbara Ann Patton Leonard, who
were identified in the Verified Complaint as persons who may have an
interest in the defendant property. [See Docs. 19-1, 19-2].
Barbara Ann Patton Leonard filed a Claim on March 17, 2010, but
subsequently withdrew her Claim on March 11, 2011. [Docs. 8, 28]. John
Wilson Patton filed his Claim on March 26, 2010. [Doc. 9]. Roy Nelson,

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Sr. and Harold Eugene Patton did not file claims 1 and upon motion of the
Government, the Clerk of Court entered default against them on October
29, 2010. [Doc. 24]. No other person or entity has filed a claim in this
action. Accordingly, John Wilson Patton (hereinafter the “Claimant”)
remains as the only possible claimant of the defendant property.
On April 30, 2011, the Government filed the present motion for
summary judgment, arguing that the undisputed facts show that the
property is subject to forfeiture and that the Claimant cannot establish that
he is an “innocent owner” of the defendant property. [Doc. 31]. The
Claimant filed a response opposing the Government’s motion on May 15,
2011. [Doc. 32]. On May 19, 2011, the Government filed a notice of its
intent to not file a reply brief. [Doc. 33]. Having been fully briefed, this
matter is ripe for disposition.

1

Roy Nelson Patton, Sr. and Harold Eugene Patton did join Barbara Ann Patton
Leonard and John Wilson Patton in a motion filed by counsel seeking an extension of
time in which to file a claim in this action. [Doc. 6]. While the request for an extension
of time was granted [Doc. 7], neither Roy Nelson Patton, Sr. nor Harold Eugene Patton
filed a claim within the time allowed.
3

II.

STANDARD OF REVIEW
Summary judgment is proper “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). “As the Supreme
Court has observed, ‘this standard provides that the mere existence of
some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.’” Bouchat v.
Baltimore Ravens Football Club, Inc., 346 F.3d 514, 519 (4th Cir. 2003)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct.
2505, 91 L.Ed.2d (1986)) (emphasis in original). A genuine issue of fact
exists if “a reasonable jury could return a verdict for the nonmoving party.”
Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994) (citation omitted).
“Regardless of whether he may ultimately be responsible for proof
and persuasion, the party seeking summary judgment bears an initial
burden of demonstrating the absence of a genuine issue of material fact.”
Bouchat, 346 F.3d at 522. If this showing is made, the burden then shifts
to the non-moving party who must convince the Court that a triable issue
does exist. Id.

4

A party opposing a properly supported motion for
summary judgment may not rest upon the mere
allegations or denials of his pleadings, but rather must
set forth specific facts showing that there is a genuine
issue for trial. Furthermore, neither unsupported
speculation, nor evidence that is merely colorable or
not significantly probative, will suffice to defeat a
motion for summary judgment; rather, if the adverse
party fails to bring forth facts showing that reasonable
minds could differ on a material point, then,
regardless of any proof or evidentiary requirements
imposed by the substantive law, summary judgment,
if appropriate, shall be entered.
Id. (internal citations and quotation marks omitted).
In considering the facts for the purposes of a summary judgment
motion, the Court will view the pleadings and material presented in the light
most favorable to the nonmoving party, drawing all reasonable inferences
in that party’s favor. George & Co. LLC v. Imagination Entertainment Ltd.,
575 F.3d 383, 392 (4th Cir. 2009).

III.

FACTUAL BACKGROUND
The forecast of evidence presented by the Government, which is not

disputed by the Claimant, is summarized as follows.
The defendant property is titled in the name of Cleveland Glenn and
his wife, Hattie E. Glenn. [Doc. 31-1]. Cleveland Glenn died on January 9,

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1994, and Hattie E. Glenn died on February 12, 2000. The four apparent
heirs of the defendant property are Roy Nelson Patton, Sr., Barbara Ann
Patton Leonard, Harold Eugene Patton, and John Wilson Patton, the
Claimant herein. [Id.].
From in and around January 2001 and continuing until 2008, the
residence located on the defendant property was the principal site of a
large-scale conspiracy to distribute crack cocaine in Burke County and
elsewhere in Western North Carolina. [Verified Complaint, Doc. 1 at ¶¶16,
18, 30, 31; Affidavit of Martin Lawing (“Lawing Aff.”), Doc. 31-7].
Government investigation of drug trafficking at the defendant property
resulted in the filing of three indictments involving a total of 33 defendants,
all of whom have been convicted and/or pled guilty to charges of drug
trafficking. [Lawing Affidavit, Doc. 31-7]. See United States v. Booker, et
al., Criminal Case No. 1:07cr33 (W.D.N.C.); United States v. Adams,
Criminal Case No. 1:08cr128 (W.D.N.C.); and United States v. Corpening,
et al., Criminal Case No. 1:08cr10 (W.D.N.C.).
John Wilson Patton and Harold Eugene Patton were two of twelve
defendants charged in the Booker indictment. John Wilson Patton
proceeded to trial on July 9, 2007. At trial, Burke County narcotics

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investigator Chris Marsh testified that he assisted in the execution of a
search warrant at the defendant property on October 29, 2006. [Criminal
Case No. 1:07cr33, Trial Transcript, Doc. 345 at 112-13]. During the
execution of that search warrant, a firearm was seized from a closet in
John Wilson Patton’s bedroom. [Id. at 119]. Two vials containing residue
amounts of crack cocaine also were seized, along with $453.00 in cash,
drug paraphernalia, and four cell phones. [Id. at 137].
John Wilson Patton’s neighbor, Charles Tate, testified that he had
purchased crack cocaine on at least two occasions at the defendant
property sometime between 2002 and October 2006. [Id. at 144, 148].
Cooperating government witness Wayne O’Neil testified that he went
to the defendant property “quite often” to sell crack cocaine to John Wilson
Patton, Harold Eugene Patton, and others. [Id. at 72, 77, 90]. O’Neil further
testified that he witnessed John Wilson Patton conduct drug transactions
approximately “15, 20 times” in the living room of the residence. [Id. at 77].
Indicted co-conspirator Jeannie Largent Cosby testified that she was
a long-time crack user and lower-level dealer who regularly visited the
residence on the defendant property to purchase crack cocaine. [Id. at
162-63, 170]. She stated that after the year 2000 she purchased crack

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cocaine “twice a day” from John Wilson Patton. [Id. at 162-63]. Cosby
further testified that on April 25, 2006, she participated in a controlled
purchase of crack cocaine at the residence. [Id. at 169]. She further
testified that she purchased crack from Harold Eugene Patton at the
residence on the defendant property on July 18 and October 2, 2006. [Id.
at 172-74].
Other government witnesses, including Robin Surratt, Tara Aday,
Melvin O’Neil, Shannon Coleman, Michael Duckworth, and Jamesha
Corpening, testified that they purchased crack cocaine from John Wilson
Patton and/or Harold Eugene Patton at the residence on the defendant
property during the period of the alleged drug trafficking conspiracy. [Id. at
96, 213, 226-27, 235-37, 251-52, 257-58, 261-62]. Robin Surratt testified
that the residence at 400 Roper Street was “a known crackhouse.” [Id. at
97].
On July 13, 2007, a jury found John Wilson Patton guilty of
conspiracy to possess with intent to distribute 50 or more grams of cocaine
base, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and possession of a
firearm after having been convicted of a felony, in violation of 18 U.S.C. §
922(g)(1). [Criminal Case, No. 1:07cr33, Doc. 152]. He was sentenced to

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360 months of imprisonment on March 24, 2009. [Id., Doc. 319]. Harold
Eugene Patton pled guilty to the same drug conspiracy charge and was
sentenced to life imprisonment. [Id., Doc. 299].2
The use of the defendant property in the illegal drug activity is further
corroborated by the following verified allegations set out in the complaint.3
On October 2, 2006, a confidential informant working with the Burke
County Sheriff’s Office purchased crack cocaine from Harold Eugene
Patton at the residence on the defendant property. [Verified Complaint,
Doc. 1 at ¶28]. On December 14, 2006, a confidential informant made
another controlled buy from Curtis Jerome Lytle at the residence on the
defendant property; John Wilson Patton was present during this purchase.
[Id. at ¶¶26, 27].

2

The Government made no attempt to forfeit the defendant property in the
Booker case. Rather, the Government filed a Notice of Forfeiture of the defendant
property as part of the Adams indictment, which charged a total of 15 defendants with
conspiracy, including the son of John Wilson Patton, Ravon Jamar Patton. [See
Criminal Case No. 1:08cr128, Doc. 2]. On May 5, 2009, Ravon Jamar Patton pled guilty
and consented to the forfeiture of the defendant property as part of his plea. [Id., Docs.
186, 187]. The Government moved to dismiss that criminal forfeiture proceeding in
favor of the present civil forfeiture case, and the Court granted that motion on January
20, 2010. [Id., Doc. 384].
3

A verified complaint may be treated as an affidavit for the purposes of summary
judgment if it satisfies the standards of Rule 56(c)(1)(4) of the Federal Rules of Civil
Procedure. See United States v. Four Parcels of Real Property, 941 F.2d 1428, 1444
n.35 (11th Cir. 1991) (citing prior version of Rule 56).
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Charlisa Kincaid purchased cocaine base from John Wilson Patton at
the residence on the defendant property at various times between 2000
and 2007. [Id. at ¶¶24, 25]. A confidential informant made three controlled
buys from Ravon Jamar Patton at the residence on the defendant property
on October 29, 2007; November 14, 2007; and February 13, 2008. [Id. at
¶¶21-23].
On February 21, 2008, deputies with the Burke County Sheriff’s
Department executed a search warrant on the defendant property. During
the course of the search, deputies discovered and seized an amount of
cocaine base, measuring scales, packaging paraphernalia, and a firearm
from the residence. [Id. at ¶¶19, 20].

IV.

ANALYSIS
Under the civil forfeiture laws, the Government may seek the

forfeiture of real property if such property “is used, or intended to be used,
in any manner or part, to commit, or to facilitate the commission of, a
violation of” the Controlled Substances Act. 21 U.S.C. § 881(a)(7).4 The

4

In addition to seeking forfeiture under 21 U.S.C. § 881(a)(7), the Government
indicates in its summary judgment motion that it also seeks forfeiture of the defendant
property pursuant to 21 U.S.C. § 881(a)(6). The Government, however, has not made
any legal argument or presented any forecast of evidence to establish that the
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Government bears the burden in a civil forfeiture action of proving by a
preponderance of the evidence that the property sought is subject to
forfeiture. 18 U.S.C. § 983(c)(1). Whether the Government has met this
burden is determined by a totality of the circumstances. See United States
v. Thomas, 913 F.2d 1111, 1115 (4th Cir. 1990).
Once the Government has met its burden, the burden then shifts to
the claimant to prove an affirmative defense to forfeiture, such as the
defense that he is an “innocent owner” of the defendant property. 18
U.S.C. § 983(d)(1). An innocent owner is one who either “did not know of
the conduct giving rise to forfeiture” or “upon learning of the conduct giving
rise to the forfeiture, did all that reasonably could be expected under the
circumstances to terminate such use of the property.” 18 U.S.C. §
983(d)(2).
In order to establish that a defendant property is forfeitable because it
was “facilitating” an illegal drug transaction, the Government must prove
that “there was a substantial connection between the property and the

defendant property is a “thing[ ] of value furnished or intended to be furnished by any
person in exchange for a controlled substance” or that the property constitutes
“proceeds traceable to such an exchange.” Id. Accordingly, the Court considers the
Government to have abandoned this argument and will not address it further.
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offense.” 18 U.S.C. § 983(c)(3). Under this standard, “the property either
must be used or intended to be used to commit a crime, or must facilitate
the commission of a crime. At minimum, the property must have more than
an incidental or fortuitous connection to criminal activity.” United States v.
Schifferli, 895 F.2d 987, 990 (4th Cir. 1990).
In the present case, the Government has presented an undisputed
forecast of evidence to show that the real property located at 400 Roper
Street was the site of multiple illegal drug transactions, beginning in 2000
and continuing until 2008. These transactions are detailed not only in the
Government’s Verified Complaint, but in the affidavit of Martin Lawing, a
narcotics investigator with the Burke County Sheriff’s Office, and the
transcript of John Wilson Patton’s criminal trial, at which no fewer than nine
fact witnesses testified to John Wilson Patton’s and Harold Eugene
Patton’s knowledge of and active participation in the trafficking of crack
cocaine at the defendant property. Based upon this undisputed forecast of
evidence, the Court concludes that the Government has demonstrated that
there is no genuine issue as to any material fact that the subject property
was used to facilitate the commission of illegal drug transactions and is
therefore subject to forfeiture pursuant to 21 U.S.C. § 881(a)(7).

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The Claimant concedes that his drug trafficking conviction precludes
him from asserting an innocent ownership defense in this case. [See Doc.
32 at 3]. Nevertheless, the Claimant opposes the Government’s summary
judgment motion on the grounds that this action is barred by the applicable
statute of limitations. [Id. at 2]. The Claimant previously raised this
argument in a motion to dismiss, which was denied by this Court. [See
Doc. 15]. For the reasons stated in that prior Order, the Court again rejects
the Claimant’s statute of limitations argument here.
Finally, and apparently as an alternative argument, the Government
seeks the entry of a default judgment against the Claimant on the theory
that he abandoned any ownership interest in the defendant property for an
18-month period in 2007 and 2008. On this point, frankly, the
Government’s brief is convoluted and difficult to follow. Suffice it to say
that the Government has failed to present factual or legal grounds sufficient
to warrant the entry of default judgment against the Claimant in this case.
Accordingly, the Government’s motion for a default judgment will be
denied.

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V.

CONCLUSION
Having carefully reviewed the entire record in this case, the Court

concludes that the Government has demonstrated that there are no
genuine issues of material fact and that it is entitled to judgment as a
matter of law. Accordingly, the Government’s motion for summary
judgment will be granted.
IT IS, THEREFORE, ORDERED that the Government’s Motion for
Summary Judgment on the Claim of John Wilson Patton [Doc. 31] is
GRANTED.
IT IS FURTHER ORDERED that the Government’s Motion for Default
Judgment [Doc. 31] with respect to the Claim of John Wilson Patton is
DENIED.
IT IS FURTHER ORDERED that within thirty (30) days of the entry of
this Order, the Plaintiff shall take such further action as is required to
prosecute this action with respect to Harold Eugene Patton and Roy
Nelson Patton, Sr.
Signed: June 16, 2011

IT IS SO ORDERED.

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