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June 19, 1990


The opinion of the court was delivered by: Wexler, District Judge.

Plaintiff United States of America ("plaintiff"), commenced the above-referenced civil forfeiture action pursuant to the Comprehensive Crime Control Act of 1984, 21 U.S.C. § 881(a)(7) (" § 881 ") against defendant-in-rem. Currently before the Court is plaintiff's motion for specific jury instructions regarding the "innocent owner" defense. Claimant of defendant property, Josephine A. Counihan ("claimant"), opposes plaintiff's motion and has proposed an alternative charge. For the reasons stated below, plaintiff's motion is granted.


The Comprehensive Crime Control Act's forfeiture section provides for an "innocent owner" defense to a forfeiture proceeding. The relevant part of § 881 states:

(a) Property subject

    The following shall be subject to forfeiture to
  the United States Government and no property right
  shall exist in them:
  (7) All real property, including any right, title,
  and interest (including any leasehold interest) in
  the whole of any lot or tract of land and any
  appurtenances or improvements, 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 title punishable by more than
  one year's imprisonment, except that no property
  shall be forfeited under this paragraph, to the
  extent of an interest of an owner, by reason of any
  act or omission established by that owner to have
  been committed or omitted without the knowledge or
  consent of that owner.

21 U.S.C. § 881 (emphasis added).

Thus, the statute provides for a defense if an owner proves that the property was not used for the illegal activities giving rise to the forfeiture, or that they occurred "without the knowledge or consent of that owner." Id. In the case at bar the parties agree that § 881(a)(7) applies and, further, it is undisputed that claimant bears the burden of proving the innocent owner defense.

The issue before the Court concerns the interpretation of § 881(a)(7), to wit, whether the phrase "without knowledge or consent" is equivalent to the phrase "without knowledge and without consent," as the government maintains; or whether, as claimant contends, the phrase is equivalent to the phrase "without knowledge or without consent."

This question involves a substantial split of authority and has yet to be decided by the Second Circuit. In United States v. 171-02 Liberty Avenue, 710 F. Supp. 46 (E.D.N.Y. 1989), the court certified an immediate appeal of this question, although the Second Circuit deferred consideration of the issue until final judgment is entered in that case. This matter comes before this Court pending the result in 171-02 Liberty Avenue.


Claimant argues that she can establish her "innocent owner" defense by demonstrating either that she lacked knowledge or that she lacked consent to the illegal activity on the defendant premises. In other words, claimed argues that her burden will be met, and the defense proven, if she can show either one or the other. Claimant relies principally on the opinion in 171-02 Liberty Avenue. See 710 F. Supp. 46. There the claimant asserted that his conceded knowledge of the illicit activities was not enough to render the "innocent owner" defense unavailable to him. In its analysis, the court found that "the statutory language is all the court has to go on," and then stated that "under normal cannons of statutory construction, the court must give effect to Congress' use of the word `or' by reading the terms `knowledge' and `consent' disjunctively." Id. at 50. Hence the court reasoned that if "or" was considered a disjunctive word, a claimant's innocence would be evinced by showing one or the other. In other words, the court found that the statute would create an affirmative defense where the illegal activities giving rise to the forfeiture "occurred without the knowledge or without the consent of the owner." Id. (emphasis supplied); accord, United States v. 6109 Grubb Rd., 886 F.2d 618 (3d Cir. 1989).

Plaintiff finds fault with the opinion in 171-02 Liberty Avenue and maintains that § 881(a)(7) requires an owner to prove both that she lacked knowledge of, and that she did not consent to the illegal drug activity. Through an exposition of what it calls elementary principles of logic, plaintiff, in essence, asserts that the phrase "knowledge or consent" must be read as a compound phrase.

Plaintiff cites "Demorgan's Law" for the proposition that a compound phrase requires only one property to be met if the compound proposition ("knowledge or consent") is to be filled. Accordingly, plaintiff argues, for an owner to prove that she did not meet the compound property ("knowledge or consent") she must prove that she had neither knowledge nor consent. That is to say, ...

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