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U.S. v. CERTAIN REAL PROP. AND PREMISES

September 18, 1990

UNITED STATES OF AMERICA, PLAINTIFF,
v.
CERTAIN REAL PROPERTY AND PREMISES KNOWN AS 38 WHALERS COVE DRIVE, BABYLON, NEW YORK, DEFENDANT.



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

MEMORANDUM AND ORDER

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 summary judgment.

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.

I.

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 government.

II.

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 Cir. 1989).

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:

  Under current law, if a person uses a boat or car
  to transport narcotics or uses equipment to
  manufacture dangerous drugs, his use of the
  property renders it subject to civil forfeiture.
  But if he uses a secluded barn to store tons of
  marijuana or uses his house as a manufacturing
  laboratory for amphetamines, there is no
  provision to subject his real property to

  civil forfeiture, even though its use was
  indispensable to the commission of a major drug
  offense and the prospect of the forfeiture of the
  property would have been a powerful deterrent.

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 ...


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