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:
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.
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, ...