The opinion of the court was delivered by: Edelstein, District Judge:
Claimant Jerry Nelson moves to dismiss the Government's
complaint seeking the forfeiture of the defendant-in-rem. The
Government cross-moves for summary judgment pursuant to
21 U.S.C. § 881(a)(7). For the reasons stated below, claimant's
motion to dismiss is denied and the Government's cross-motion
for summary judgment is granted.
On September 9, 1988, the United States commenced this civil
forfeiture action against 288-290 North Street, Middletown, New
York ("the property"), consisting of real property, a
grocery/deli business, and three apartments. The Clerk of the
Court for the Southern District of New York issued an in-rem
warrant pursuant to Rule C(3) of the Supplemental Rules,
the United States Marshall to seize the property. A notice of
pendency was issued on September 12, 1988 and was recorded at
the county clerk's office, Orange County, New York, on
September 16, 1988.
Although Rule C(3) permits the Clerk of the Court to issue a
seizure warrant, on September 20, 1988, the Government made an
ex parte application before this court for a seizure warrant
pursuant to information contained in the verified complaint
filed on September 9, 1988. This court granted the seizure
warrant which authorized the United States Marshals Service to
seize the property, to conduct a structural inspection of the
property and to evict the tenants occupying the second-floor
apartments on the property. On September 22, 1988, the Marshals
Service executed the seizure warrant.
Between January, 1988 and September, 1988, the Middletown City
Police Department conducted an investigation of narcotics
violations at the property. During this period four search
warrants were executed and at least thirty arrests were made at
the property in connection with narcotics violations. The
claimant and record owner of the property Jerry Nelson, a/k/a
Jerry Nelson Reyes ("Nelson"), and members of his family were
arrested at the property for the sale and possession of
The nine month investigation included the following specific
On January 17, 1988, narcotics officers observed Neftali Reyes,
claimant's brother, making several narcotics deals out of a
second-floor apartment at the property. Neftali, with Nelson
present, was arrested for the criminal possession and sale of a
controlled substance and resisting arrest.
On January 19, 1988, and February 11, 1988, claimant was
present when search warrants were executed at the property. The
two searches resulted in the arrests of three subjects for
narcotics violations and the seizure of a sum of money
containing several bills from a controlled narcotics purchase,
known as "buy money." After his January 19, 1988 arrest at the
property, Felix Delmoral gave a sworn statement that Nelson was
the "top man" for drugs in the area and that he was selling
drugs for Nelson.
After the arrest of Cynthia Riker on April 1, 1988, for the
sale and possession of "crack," a cocaine derivative, an
officer told Nelson that he should be more careful about who he
allowed on his property, since Riker was selling narcotics.
Also on April 1, 1988, Nelson's brother, Neftali, was again
arrested at the property for criminal possession and sale of a
controlled substance. After being observed making sales of
narcotics by narcotics officers, Neftali went inside the store
located on the first floor of the property and threw a bag
containing 177 vials of crack under the counter. Nelson was in
the store at the time of this incident.
On May 27, 1988, Roberto Caldron was arrested at the property
for two counts of criminal possession of a controlled substance
and for selling narcotics. Caldron lived in one of the
apartments at the time of his arrest.
On June 13, 1988, Nelson was present when Reinaldo Riveria was
arrested for possession of crack. Once again, an officer
informed Nelson that his property was being used for the sale
On July 5, 1988, Nelson was arrested for selling cocaine to a
confidential informant at the property. Cocaine, one thousand
four hundred dollars ($1,400) and an unregistered pistol were
seized. A number of ten dollar ($10) bills recovered were
marked as "buy money."
On August 22, 1988, and August 29, 1988, seven more individuals
were observed by undercover police officers making sales of
narcotics from the property. All seven were arrested on the
Between September 9, 1988 and September 20, 1988, four more
incidents of narcotics deals were observed by undercover
officers and six subjects were arrested at the property for the
sale and possession of narcotics.