The opinion of the court was delivered by: Nickerson, District Judge:
This action arises from an order under 21 U.S.C. § 881(a)(7)
of the Comprehensive Drug Abuse and Control Act of 1970
authorizing seizure of a condominium alleged to have been used
to "facilitate" two cocaine sales. Claimant Edward Levin moves
to dismiss the complaint. The United States cross-moves for
Levin argues that his property was not used to "facilitate"
a drug transaction under § 881(a)(7) and that the forfeiture
would violate his rights under the Eighth Amendment and the
Double Jeopardy and Due Process clauses of the Fifth Amendment
to the United States Constitution.
The critical facts are undisputed.
Levin, the owner of the condominium, was arrested for three
sales of cocaine to undercover agents. On July 6, 1988, a
confidential informant and a Suffolk County police officer,
Joseph Emiddio, went to Levin's home and bought one and one
half grams of cocaine for $150. Levin says that the
confidential informant requested that the sale take place in
the condominium. According to Emiddio, Levin produced a
half-gram packet of cocaine from a bowl in his kitchen
cabinet. The second sale took place on July 20, 1988, also at
Levin's home. Emiddio paid Levin $100 for a plastic vial
containing one gram of cocaine, which Levin produced from the
second floor of the premises. Another sale, not at issue in
this proceeding, took place in Levin's car.
During the next ten weeks Emiddio called Levin several times
per day to arrange further drug transactions, but Levin was
unwilling. Levin also states Emiddio was aware that he had a
minor drug habit, and that the small amounts of drugs Emiddio
saw were clearly for Levin's personal use.
Immediately upon his arrest in October 1988 on charges of
criminal sale of a controlled substance in violation of §
220.39.1 of the New York Penal Law, Levin cooperated with the
Suffolk County Police, acting as intermediary in another
narcotics sale held at the condominium at Emiddio's direction.
A search of the premises disclosed no drugs, weapons, or
other evidence of drug trade. The United States seized the
premises on November 4, 1988. In March 1989, Levin pled guilty
to one count of attempted criminal sale of a controlled
substance in the third degree, pursuant to Section 110.05 of
the New York State Penal Law.
Since the seizure Levin and a friend have continued to
reside at the premises under an "Occupancy Agreement" with the
The statutory provisions relating to drug abuse prevention
and control are contained in 21 U.S.C. § 801-971. Section 853
provides for criminal forfeiture from those convicted under the
statute. Section 881 provides for civil forfeiture, and section
881(a)(7), the subsection at issue here, in pertinent part,
makes "subject to forfeiture to the United States":
All real property, including any right, title,
and 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 . . .
Where the government seeks a forfeiture section 881(d),
which incorporates the procedures provided for in 19 U.S.C. § 1615
for customs forfeitures, places upon it the burden to
demonstrate probable cause to believe the property was used, or
intended to be used, to facilitate a drug transaction
punishable under federal law. Then, unless the claimant
introduces evidence that the government has not met factual
predicates for forfeiture, the court may grant summary judgment
for the government. United States v. The Premises and Real
Property at 4492 South Livonia Road, 889 F.2d 1258, 1267 (2d
The sale by Levin of any amount of cocaine was punishable
under section 841(b)(1)(C) by more than one year's
imprisonment. Levin does not deny making the sales but argues
that he did not use his condominium to "facilitate" their
commission within the meaning of section 881(a)(7). He cites
the legislative history, in particular the 1984 Senate
Committee Report, explaining the addition of real property to
the list of items forfeitable. The report states:
S.Rep. No. 225, 98th Cong., 1st Sess. 195, reprinted in 1984
U.S.Code Cong. & Admin.News 3182, 3378 (Senate Report).
Levin says that his condominium was far from "indispensable"
to the two minor cocaine sales and that in any event he
committed no "major" drug offense. He contends that before
finding the home forfeitable, the court must find a
"substantial connection" between the use of the property and
the drug sales.
The court has found no decision construing the above passage
from the Senate Report as suggesting that as a condition of
forfeiture the court must find the property "indispensable" to
the drug transaction, see, United States v. Certain Lots in
Virginia Beach, 657 F. Supp. 1062, 1065 (E.D. Va. 1987). Some
courts have read the legislative history to require a finding
of "substantial connection" between the property and the drug
transaction. See id. and United States v. $12,585, 669 F. Supp. 939
(D.Minn. 1987). But the Court of Appeals for this circuit
rejected such a standard and held that there need only be a
"sufficient nexus." See United States v. One 1974 Cadillac
Eldorado, 548 F.2d 421, 423 (2d Cir. 1977); South Livonia Road,
889 F.2d at 1269.
On two occasions claimant produced a controlled substance
for sale from a place in his dwelling. The use of the premises
repeatedly to sell and to safekeep drugs undoubtedly
"facilitated" the ensuing sales according to the common
definition of the term, "to make easier." The Random House
Dictionary of the English Language 840 (1969). Although Levin's
unrefuted affidavit says that one of the sales took place at
his home on the suggestion of the police officer, he makes no
contention that the presence of drugs in his home was momentary
or merely fortuitous. Cf. Certain Lots in Virginia Beach,
supra, 657 ...