United States District Court, Eastern District of New York
May 24, 1990
UNITED STATES OF AMERICA, PLAINTIFF,
CERTAIN REAL PROPERTY AND PREMISES KNOWN AS 418 57TH STREET, BROOKLYN, NEW YORK, DEFENDANTS.
The opinion of the court was delivered by: Platt, Chief Judge.
MEMORANDUM AND ORDER
The Government moves for summary judgment pursuant to
Federal Rule of Civil Procedure 56. Claimants Harvey and Helen
Lehrer maintain that they are entitled to rely on the innocent
owner defense and hence summary judgment must be denied. For
the reasons stated below, the Government's motion is granted.
Claimants owned the defendant premises since October 1986.
For the entire time of
their ownership, claimants rented the premises to two tenants,
Jose Alicea and Jose Beltrez. Alicea rented three floors of
the premises, originally for $1,500 per month and later for
$1,650 per month. The remaining floor was leased to Beltrez
originally for $500 per month and later for $650 per month.
The rent which was collected personally by the claimants was
always paid in cash. During their visits to collect rent and
make repairs, claimants observed that the apartments were
fully furnished and being used as a family residence;*fn2
they never noticed anything suspicious.
In June, 1988, claimants received a letter from New York
City Councilman Salvatore Albanese regarding narcotics on the
property. After receiving the letter, claimants communicated
with Councilman Albanese and were informed that there were
reports of drugs on the premises and that Gary Lind had been
arrested on the front yard. Councilman Albanese advised
claimants to talk to an attorney. Claimants then communicated
with attorney, Israel Slochowsky, who informed them that based
upon mere allegations they could not go to court to evict the
tenants and that if they did evict the tenants they could be
liable for harassment and wrongful eviction; claimants were
told that "there was nothing they could do."
Claimants then went and spoke to Alicea about his brother
Lind's arrest. Alicea informed them that Lind had a few
"joints on him that he used for recreational purposes."*fn3
Claimants informed Alicea that they did not want that done on
According to claimants, claimants never had any knowledge
that (i) the government was investigating the property, (ii)
raids had taken place on the property, (iii) during the raids,
drugs were recovered on the premises, or (iv) various
occupants had been arrested.
Both the claimants and the government agree that the sole
issue before this Court is the interpretation of the "innocent
owner defense" as set forth in the forfeiture statute,
21 U.S.C. § 881(a)(7), and its applicability to the case at
The "innocent owner defense" as set forth in the forfeiture
statute, 21 U.S.C. § 881(a)(7), provides that "no property
shall be forfeited . . . by reason of any act or omission
established by that owner to have been committed or omitted
without the knowledge or consent of the owner."
Claimants relying on a recent Eastern District of New York
decision, United States v. 171-02 Liberty Avenue,
710 F. Supp. 46 (E.D.N.Y. 1989), argue that under the normal canons
of statutory construction, the "innocent owner defense" should
be interpreted as meaning that unless an owner both
knows of the wrong and consents to that wrong, the
property shall not be forfeited. Accord United States v.
6109 Grubb Avenue, 886 F.2d 618 (3rd Cir. 1989). Although
obviously not without merit, in this Court's opinion
claimants' argument must fail.
The statute clearly states that the property will be
forfeited unless the wrong was committed "without knowledge
or consent of the owner" and hence should only be
interpreted to mean that the property shall be forfeited
unless the wrong occurred without either the knowledge or the
consent of the owner. In United States v. 171-02 Liberty
Avenue, the Court interpreted the statute to provide "an
affirmative defense where the illegal acts giving rise to the
forfeiture occurred without the
knowledge or without the consent of the owner."
(emphasis added.) It is only with the Court's addition of the
second "without," which is not present in the statute, that
the Court was able to construe the statute to mean forfeiture
shall not occur unless the illegal act occurred without both
the knowledge and consent of the owner. It seems to this Court
that not only was the second "without" not included by
Congress but also it was not intended by Congress. If Congress
had intended that no forfeiture shall take place unless the
owner established that he both did not know and did not
consent to the illegal act, it would have merely put the word
"and" rather than "or" in the statute.
Moreover, if Congress had intended that proof of lack of
both consent and knowledge be required it would only have had
to prescribe "knowledge" because lack of knowledge necessarily
encompasses lack of consent. Therefore, this Court holds that
the "innocent owner defense" provides that the property shall
be forfeited unless the owner establishes that the illegal act
occurred without either his knowledge or his consent. See
United States v. Four Million, Two Hundred Fifty-Five
Thousand, 762 F.2d 895 (11th Cir. 1985); United
States v. $10,694 U.S. Currency, 828 F.2d 233 (4th Cir.
1987); United States v. 124 East North Avenue, etc.,
651 F. Supp. 1350, 1357 (N.D. Ill. 1987).
The claimants argue that even if the statute is interpreted
as meaning that the owner need only have knowledge or consent
to the act, they are still entitled to the innocent owner
defense because they did not have knowledge of the illegal
acts nor did they consent to the acts. However, far from
establishing this, the proof shows and this Court finds that
claimants most certainly did have knowledge of the illegal
acts. Claimants papers and desposition testimony clearly
establish as a matter of law that claimants had knowledge. For
example, in their papers, they admit that they were informed
by Councilman Albanese of narcotics dealings and arrests on
the premises. Further, in her deposition Mrs. Lehrer
Q: Do you recall the letter you received from
Councilman Albanese, whatever letter it was,
making reference to Garibaldi Lind?
A: Yes, I do recall that it said something about
somebody being arrested, but I don't recall it
being of that length or of that wording.
Q: Do you recall it stating something to the
effect that a Gary Lind, Mr. Alicea's brother,
was arrested in the front yard of your building
of a Class B felony for possession of a
A: I remember him, Class B, I remember the
courtyard and for possession. That's what I
Q: Was the courtyard — could you explain
where the courtyard is?
A: Picture, if you will, a row of brownstones.
Rather than having an outside stoop, it has the
outside stoop which turns on either side or
straight, this one happens to be straight but
that projects out of the house and therefore it
creates an area that projects from the house,
that the next house creates another area, so
it's squared off.
Q: This area that you are referring to as the
courtyard or the front yard, were you the owner
of COMPUTER AIDED TRANSCRIPTION/keyword index
that area along with your husband?
A: I would think so, yes.
In their papers, claimants also admit that when they
discussed the matter with their tenant Alicea, he did not deny
such reports but rather admitted that his brother "had a few
joints." Moreover, in Mrs. Lehrer's deposition, she testified:
Q: Did your husband speak to Jose Alicea about
A: Yes, he did.
Q: What, if anything, did he say?
A: "What happened?" He said, "What happened? Did
this really happen?"
He said, "No." He said, "He's just a young
kid and he had some stuff on him that he was
using for recreational purposes."
And my husband said, "I don't want him doing
that kind of stupid stuff in my house."
This Court finds that such admissions of claimants demonstrate
and prove knowledge as a matter of law.*fn4
assert that they did not know of the investigation, raids,
arrests of occupants other than Lind, or drugs obtained by the
raids is irrelevant; the statute provides a defense for owners
without knowledge of the illegal acts, not those without
knowledge that the law enforcement agents are also aware of
the illegal acts.*fn5
In conclusion, this Court holds that there is no material
question of fact at issue and the government is entitled to
summary judgment as a matter of law. Fed.R.Civ. Proc. 56;
see Anderson v. Liberty Lobby, 477 U.S. 242, 106
S.Ct. 2505, 91 L.Ed.2d 202 (1986).