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United States v. Premises and Real Property at 4492 South Livonia Road

decided: November 17, 1989.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
THE PREMISES AND REAL PROPERTY AT 4492 SOUTH LIVONIA ROAD, LIVONIA, NEW YORK, THAT IS, ALL THAT TRACT OR PARCEL OF LAND SITUATE IN THE TOWN OF LIVONIA, LIVINGSTON COUNTY, STATE OF NEW YORK, LINED AND BEING IN LAND LOT #39 AND RECORDED IN LIBER 570 AT PAGE 137 OF THE LIVINGSTON COUNTY LAND RECORDS, DEFENDANT. PETER SERAFINE, OWNER OF 4492 SOUTH LIVONIA ROAD, LIVONIA, NEW YORK, CLAIMANT-APPELLANT



Appeal by claimant Peter Serafine from final judgment of forfeiture in the United States District Court for the Western District of New York, Michael A. Telesca, J., forfeiting interest as owner of record in defendant premises.

Feinberg and Newman, Circuit Judges, and Dumbauld, District Judge.*fn*

Author: Feinberg

FEINBERG, Circuit Judge.

This appeal raises substantial questions, some of first impression in this circuit, in connection with the government's use of 21 U.S.C. § 881(a)(7), which provides for civil forfeiture of real property. Foremost among the issues before us is whether the government may seize a person's home without first giving the homeowner an opportunity to be heard. Claimant-appellant Peter Serafine appeals from a final judgment in an in rem action forfeiting his interest as owner of record of the defendant premises. Appellant argues that the United States District Court for the Western District of New York, Michael A. Telesca, J., erred in granting summary judgment in favor of plaintiff-appellee United States and in denying Serafine's earlier motions to dismiss the government's complaint and for return of property. Appellant asks us to reverse the decision of the district court and dismiss the complaint or, alternatively, to remand the matter for trial. For reasons given below, we hold that the government's seizure of appellant's home at the inception of its in rem action was improper; nevertheless, we affirm the subsequent judgment of forfeiture of the district court.

Background

On December 15, 1986, the United States commenced this civil in rem forfeiture proceeding against the premises and real property located at 4492 South Livonia Road in the Town of Livonia, New York. The property named in the complaint consisted of a 120-acre parcel of land with a house, two barns and several small outbuildings. The government's complaint alleged that the defendant property was used to facilitate the distribution of cocaine, a controlled substance, and was therefore subject to forfeiture under 21 U.S.C. § 881(a)(7).

On December 16, 1986, the United States filed a notice of lis pendens against the property in the County of Livingston, identifying Serafine as the owner of record. On the same day, a warrant of seizure and monition was issued by a deputy clerk of the district court, in accordance with the procedures outlined in 21 U.S.C. § 881(b).*fn1 Also on that day, the government appeared ex parte before then Magistrate (and now Judge) David G. Larimer, and obtained an additional seizure warrant/writ of entry based upon probable cause. This latter warrant directed seizure of the property, "including the primary residence and other outbuildings." Pursuant to these warrants, United States marshals seized the defendant premises on December 17, 1986.

The affidavit in support of the seizure warrant before Magistrate Larimer was submitted by Benjamin C. Brainard, a Special Agent of the United States Drug Enforcement Administration (DEA). Agent Brainard referred to three events, known as a result of his own personal involvement and as a result of reports made to him by other special agents, as establishing probable cause to believe that the property had been used to facilitate the distribution of cocaine. First, on April 25, 1986, a confidential informant arranged to purchase cocaine from one Richard Meyering, apparently a known drug dealer. The individual was equipped with a transmitter unit, and Meyering was heard to state that he would "run down the road to get the cocaine." DEA agents (not including Brainard) allegedly observed Meyering leave his residence, drive directly to 4492 South Livonia Road, enter the house, and then return to his own residence. Upon his return, Meyering gave the supposed purchaser a glassine bag containing cocaine, which he in turn gave to Brainard. Second, on May 21, 1986, the same person introduced Brainard to Meyering as a prospective purchaser of cocaine. Meyering indicated his need to go to his "guy's house," and other surveilling DEA agents allegedly observed Meyering again drive to and return from 4492 South Livonia Road. Upon his return, Meyering gave Brainard a glassine bag containing cocaine. Third, on June 26, 1986, upon the authority of a search warrant issued by a Livingston County Court judge, Brainard, along with other DEA agents and state officials, conducted a search of the defendant premises and seized the following items: several containers holding cocaine cutting agents and small quantities of cocaine and marijuana; a triple beam balance scale; seven hand guns; a hand grenade; an Uzi 9 mm. carbine; and $19,000 in cash, of which nine $100 bills were confirmed by serial match-up to have been given in the cocaine purchases on April 25 and May 21, 1986.

Following the seizure of the premises, the government entered into an occupancy agreement with Serafine, permitting him to continue his residence during the pendency of the civil forfeiture proceeding. In February 1987, Serafine moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) and for the return of his property pursuant to Fed.Crim.P. 41(e). Serafine claimed, among other things, that 21 U.S.C. § 881(a)(7) was unconstitutional on its face and as applied because the statute did not provide for, and he was not afforded, an adversary hearing prior to the seizure of his home. Affidavits of Serafine and his attorney were submitted in support of the motions. These affidavits did not dispute the factual allegations in the Brainard affidavit except for the claim that it would have been physically impossible for surveillance agents to observe Meyering's entry into Serafine's home, because the property is surrounded by trees and is located one-quarter mile from the main road.

In August 1987, Judge Telesca denied Serafine's motions in a written opinion, reported at 667 F. Supp. 79. In determining whether the procedures used satisfied due process, the district court balanced the risk of an erroneous deprivation and the probable value of additional safeguards, the government's interest in immediate seizure and the strength of the property interest at stake. Id. at 81. Although the court acknowledged that Serafine had a significant property interest in the property seized, it held that this was outweighed by the governmental interest in fostering the use of seizure as a weapon to combat drug trafficking. Id. at 84. The court concluded that preseizure notice and an opportunity to be heard were not required prior to the seizure of a home pursuant to 21 U.S.C. § 881(a)(7), although the requirements of due process would not have been satisfied if the seizure had taken place pursuant to a warrant issued solely by a clerk without the benefit of a judicial determination of probable cause. Id. The court concluded, however, that the ex parte probable cause hearing before Magistrate Larimer afforded Serafine all the process that was due. Id.

In September 1987, Serafine entered a plea of guilty to a state court indictment charging criminal sale of a controlled substance on May 21, 1986. During his state court plea hearing, Serafine admitted that on that date he provided Meyering with a quantity of cocaine with the knowledge that it would be sold or transferred to others.

In November 1987, some two months after Serafine's guilty plea, the government moved for summary judgment in the civil forfeiture action. In support of its motion, the government relied again on the affidavit of Agent Brainard and also on Serafine's admissions during his state court plea proceeding. In response to the government's motion, Serafine contended that summary judgment should be denied because, among other reasons, the allegations contained in the Brainard affidavit were hearsay, Serafine's statements made in the state proceeding were unsworn and factual allegations contained in the Brainard affidavit were in dispute.

On December 15, 1987, Judge Telesca granted the government's motion for summary judgment in an unpublished decision. On December 21, 1987, the judge signed an order of forfeiture. This appeal followed.

Discussion

I. Jurisdiction

At the outset, we consider the government's claim that this court lacks subject matter jurisdiction to hear this appeal. The government contends that since Serafine failed to file a claim and answer in the in rem proceeding below, he has not satisfied the requirements for standing, thus depriving this court of subject matter jurisdiction. We disagree. The government has failed to distinguish between Article III standing, which requires the claimant to demonstrate a sufficient interest in the property to create a "case or controversy" in the constitutional sense, see United States v. $38,000.00 in United States Currency, 816 F.2d 1538, 1543, 1538, 1543 (11th Cir. 1987), and statutory standing, which requires the claimant to comply with certain procedural requirements, see United States v. U.S. Currency, in the Amount of $103,387.27, 863 F.2d 555, 560 & n.10 (7th Cir. 1988). Only lack of Article III standing would deprive this court of jurisdiction, and there is no doubt that the owner of the property in issue has such standing. See $38,000.00 in United States Currency, 816 F.2d at 1543-44. When, as here, a claimant has made a sufficient showing of interest in the property through filing with the court a motion and accompanying affidavits, technical noncompliance with the procedural rules governing the filing of claims may be excused. See United States v. United States Currency in the Amount of $2,857.00, 754 F.2d 208, 213 (7th Cir. 1985).

II. The Constitutionality of 21 U.S.C. § 881(a)(7)

Appellant argues that § 881(a)(7) is unconstitutional on its face because it fails to provide the opportunity for a preseizure adversary hearing when a person's home is taken. Subsection (7), which was enacted as a 1984 amendment to the civil forfeiture statute, expanded the ...


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