Livonia Road, 889 F.2d at 1266. Certainly, Lt. Earl D. Bonell
III's affidavit which states the dates, circumstances, location
and parties to the numerous drug transactions and arrests as
well as the drugs, marked money, and weapons seized at the
property incident to the arrests cured any defect in the
complaint. See Id.
Thus, "[o]n balance it appears that the [claimant] was
adequately apprised of the factual circumstances underlying the
forfeiture action," and his motion to dismiss for lack of
sufficiency of the complaint is unfounded. Id.
Each of claimant's arguments in support of his motion to
dismiss are rejected. Accordingly, the motion is denied in all
II. GOVERNMENT'S CROSS-MOTION FOR SUMMARY JUDGMENT
The Government cross-moves for summary judgment pursuant to
Fed.R.Civ.P. 56. The claimant argues that the Government has
not met its burden of proof in accordance with Fed.R.Civ.P.
Under 19 U.S.C. § 1615, incorporated into Section 881 by
subsection (d), "the burden of proof shall be on the claimant
. . . . provided, that probable cause shall be first shown for
the institution of such suit or action, to be judged by the
court." 19 U.S.C.S. § 1615 (Law.Coop. 1983). To establish its
case, the Government "must have reasonable grounds, rising
above the level of mere suspicion to believe that the certain
property is subject to forfeiture." Livonia Road, 889 F.2d at
1267 (citing United States v. Banco Cafetero Panama,
797 F.2d 1154, 1160 (2d Cir. 1986)). Once the Government has met its
probable cause burden, Section 1615 places "the ultimate burden
of proving that the factual predicates for forfeiture have not
been met" on the claimant. Banco Cafetero, 797 F.2d at 1160.
The claimant has the burden to prove either the property was
not used unlawfully or that the illegal use was without the
claimant's knowledge or consent, United States v. Parcel of
Real Property Known as 6109 Grubb Road, 886 F.2d 618, reh'g
denied, 890 F.2d 659 (3d Cir. 1989); Livonia Road, 889 F.2d
at 1267: "when claimant introduces no such evidence, summary
judgment may be granted for the government solely upon the
basis of its showing of probable cause." Livonia Road, 889
F.2d at 1267.
In the instant action, the Government has met its probable
cause burden. Pursuant to 21 U.S.C. § 881(a)(7), the Government
may seize: "all real property including any right, title and
interest in the whole of any lot or tract of land and any
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 . . . ." 21 U.S.C.S. § 881(a)(7)
(Law.Coop.Supp. 1990) (emphasis added). Thus, the Government's
presentation of factual allegations of the continuing drug
traffic at the property and numerous arrests that were made at
the property support a probable cause determination that the
property was subject to forfeiture under Section 881.
Claimant argues that the affidavit of Lt. Bonell III which the
Government uses in support of its motion for summary judgment
is hearsay and therefore does not meet the Fed.R.Civ.Proc.
56(e) required showing for summary judgment. However, probable
cause has traditionally been permitted to be established by
hearsay and courts have permitted the Government to meet its
probable cause burden on summary judgment motions by the same
evidence. Livonia Road, 889 F.2d at 1267; see e.g. United
States v. Parcel of Real Property Known as 6109 Grubb Road,
886 F.2d 618 (3rd Cir. 1989); United States v. 526 Liscum
Drive, Dayton, Montgomery County, 866 F.2d 213, 217 n. 3 (6th
Cir. 1989). Thus, the Government has met both its Rule 56(e)
and probable cause burdens.
Probable cause having been shown by the Government, in
accordance with Section 1615, the burden of proof now falls on
the claimant. Nelson alleges that he was an "innocent owner"
and therefore his property is not subject to seizure. Section
881(a)(7) provides in its relevant part:
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.S. § 881(a)(7) (Law.Coop.Supp. 1990) (emphasis added).
To support this contention, Nelson's affidavit states: "I never
knowingly allowed anyone to sell drugs from my property or
allowed that property to be used to store drugs or in any way
to be used in a drug business."
However, this statement is insufficient to support an "innocent
owner" defense as Nelson must allege he was without knowledge
of and did not consent to the drug trafficking. The Ninth
Circuit in Feldman v. Perrill, 902 F.2d 1445 (9th Cir. 1990)
[i]f the claimant either knew or consented to the illegal
activities, the "innocent owner" defense is unavailable. The
intent of the forfeiture provision is to seize all property
that has a "substantial connection" to the illegal drug
activity. This policy would be substantially undercut if
persons who were fully aware of the illegal connection or
source of their property were permitted to reclaim the property
as "innocent" owners. The policy and legislative history of
[Section 881] support [this] interpretation.
Id. at 1445 (citations omitted); see also United States v.
15 Black Ledge Drive,