could be expected to prevent the illegal activity once he
learned of it." 141st Street Corp., 911 F.2d at 879. Claimant
Clara Smith has successfully established both prongs of the
innocent owner defense.
The civil forfeiture statute makes owners, including lessors,
responsible for their property. Owners must take "basic
investigatory steps" and not deliberately avoid knowledge of
wrongdoing occurring on the property. See United States v. St.
Michael's Credit Union, 880 F.2d 579, 584-85 (1st Cir. 1989);
United States v. One 1988 Honda Accord, 735 F. Supp. 726, 730
(E. D. Mich. 1990). In light of the enormous drug problem and
the statute's intended potency, lack of knowledge should be
construed to mean absence of "willful blindness." See United
States v. One Parcel of Real Estate at 5745 N.W. 110 St.,
Miami, Florida, 721 F. Supp. 287, 290 (S.D. Fla. 1989), aff'd,
914 F.2d 268 (11th Cir. 1990) ("deliberate avoidance of
positive knowledge is the equivalent of knowledge").
Even under the more stringent "willful blindness" standard,
Clara Smith established that she lacked knowledge of drug
activity in the apartment. She emphasized repeatedly that she
had no knowledge of the presence of any drugs or of any illegal
activity in her apartment. She also stated that she did not
know of any possible illegal uses of the drug paraphernalia
recovered in the search of the apartment.
When presented with anonymous charges of drug trafficking in
her household, Clara Smith promptly investigated the
allegations. She confronted her family members and questioned
them about drug activity. She also took precautionary steps to
prevent visitors from engaging in drug dealing.
Her testimony is not incredible, as the Government claims.
The apartment does not appear to be a "crack house" where
widespread, notorious drug activity occurred. The Government
only established one drug sale and the presence of hidden drug
paraphernalia. The crack vials, though large in number, were
not strewn through the apartment, but rather concealed from
sight. Given Mrs. Smith's other burdens, she could easily have
been unaware of the illegal activities. In view of her
expressed antipathy to drugs, it would be reasonable to assume
that her children and grandchildren would try to keep Mrs.
Smith in the dark about their proscribed activities. We take
judicial notice of the widespread lack of knowledge of
childrens' drug activities in all kinds of families.
Since Mrs. Smith lacked knowledge of the drug activity, she
has successfully established the innocent owner defense and is
entitled to retain the apartment. There is no need to inquire
into whether she consented to the activity since lack of
consent can be presumed from her absence of knowledge. See
United States v. Certain Real Property and Premises, Known as
418 57th Street, Brooklyn, New York, 922 F.2d 129, 131 (2d Cir.
1990); United States v. 141st Street Corp., 911 F.2d 870, 878
(2d Cir. 1990), cert. denied, ___ U.S. ___, 111 S.Ct. 1017, 112
L.Ed.2d 1099 (1991). In any event, she did take reasonable
steps, under the circumstances, to prevent drug activity in the
3. No Unlawful Activity
Claimants also maintain that forfeiture is not warranted
because the Government failed to prove that the apartment was
involved in drug activity. Claimants offer no credible evidence
to support a finding that the apartment was not used illegally.
Instead, they have attacked the adequacy of the Government's
probable cause showing. This is not sufficient to carry their
burden by a preponderance of the evidence. See United States v.
228 Acres of Land and Dwelling Located on Whites Hill Rd. in
Chester, Vermont, 916 F.2d 808, 812 (2d Cir. 1990), cert.
denied, ___ U.S. ___, 111 S.Ct. 972, 112 L.Ed.2d 1058 (1991).
Chenelle Smith's testimony during the Government's rebuttal
was the only evidence offered that the apartment was not
connected with drug activity. She denied selling crack from the
apartment on January 31, 1990. This limited denial is not
inconsistent with crack being sold from the
apartment by her on other occasions or by someone else on
January 31st. Moreover, the credibility of the denial is
doubtful in light of her earlier admission during her guilty
plea that she sold crack in the building. Cf. United States v.
Parcel of Land & Buildings Located Thereon at 40 Moon Hill Rd.,
Northbridge, Massachusetts, 721 F. Supp. 1 (D.Mass. 1988),
aff'd, 884 F.2d 41 (1st Cir. 1989) (claimant estopped by plea
of guilt from denying involvement in drug activity). The
Government's evidence and the absence of credible testimony to
the contrary require a finding that Chenelle Smith did sell
crack on January 31, 1990 from the apartment.
4. Fifth Amendment
Chenelle Smith's remaining testimony was unhelpful. When
asked whether she had seen crack in the apartment or whether
she ever possessed crack, she invoked her Fifth Amendment
privilege against self-incrimination. An adverse inference from
invocation of the privilege, taken with other evidence, would
strongly indicate that drug activity did occur in the
Whether an adverse inference can be drawn from invocation of
the Fifth Amendment privilege in a forfeiture proceeding is a
question left open by the Court of Appeals for the Second
Circuit. See United States v. One Parcel of Property Located at
15 Black Ledge Drive, Marlborough, Connecticut, 897 F.2d 97,
103 (2d Cir. 1990). This question also appears to have divided
the Courts of Appeals. Compare United States v. A Single Family
Residence and Real Property Located at 900 Rio Vista Blvd., Ft.
Lauderdale, 803 F.2d 625, 629 n. 4 (11th Cir. 1986) (allowing
adverse inference) with United States v. United States
Currency, 626 F.2d 11, 14-16 (6th Cir.) cert. denied
449 U.S. 993, 101 S.Ct. 529, 66 L.Ed.2d 290 (1980) (implying adverse
inference is improper).
Simultaneous civil forfeiture and threat of parallel criminal
actions often places claimants to property in a difficult and
untenable position. If the Government establishes probable
cause to believe that the property is subject to forfeiture,
the claimants can either present a defense to forfeiture or
lose their property. At the same time, a claimant may be facing
criminal prosecution by state or federal authorities for the
same drug-related criminal activity that has made the property
forfeitable. This choice, under some circumstances,
substantially impinges on a claimant's Fifth Amendment
privilege against self-incrimination.
Courts have adopted the pragmatic dilemma-resolving principle
that in a civil forfeiture action, attempts should be made to
accommodate a claimant's Fifth Amendment privilege. See United
States v. Parcels of Land, 903 F.2d 36, 44 (1st Cir. 1990),
cert. denied, ___ U.S. ___, 111 S.Ct. 289, 112 L.Ed.2d 243
(1990); United States v. $250,000 in U.S. Currency,
808 F.2d 895, 901 (1st Cir. 1987); United States v. United States
Currency, 626 F.2d 11, 15-18 (6th Cir.), cert. denied,
449 U.S. 993, 101 S.Ct. 529, 66 L.Ed.2d 290 (1980).
In this case, the court allowed the filing of sealed
affidavits. The affidavits could be withdrawn by the affiants
if at some later time the court decided to unseal them. At no
time could the affidavits be used in any criminal proceeding
against the affiants. While the court initially ruled that a
stay of the forfeiture proceeding was not warranted, it later
stayed any forfeiture actions until pending criminal
prosecutions were completed. These actions were more than
sufficient to protect the claimants' Fifth Amendment rights.
Chenelle Smith did not file an affidavit under seal. Her
failure to use the procedures designed to protect her Fifth
Amendment privilege obviates any further inquiry into whether
the privilege's exercise was hindered by the forfeiture
proceedings. Since her testimony does not vitiate the
Government's probable cause case, the court does not need to,
and does not rely on a negative inference from the invocation
of her Fifth Amendment privilege to find that drugs were sold
from the apartment.
F. Forfeiture of Other Claimants' Interests
Since Clara Smith has successfully established the "innocent
the Government has agreed not to proceed against the minor
residents on whose behalf Clara Smith intervened. It has
requested, however, that the occupancy interests of Chenelle
Smith, Sylvia Smith and Juanita Smith be forfeited and an order
of eviction be entered. Alternatively, the Government has
requested that the court issue an injunction prohibiting the
claimants and other occupants of the apartment from using it to
commit or facilitate narcotics offenses.
Clara Smith's establishing the "innocent owner" defense
prevents the Government from forfeiting the apartment to the
extent of her interest. See 21 U.S.C. § 881(a)(7). An owner's
interest in property is defined by state law rather than
federal law. See United States v. Lot 9, Block 2 of Donnybrook
Place, Harris County, Texas, 919 F.2d 994, 1000 (5th Cir.
1990); United States v. Real Property Located at 2525 Leroy
Lane, W. Bloomfield, Michigan, 910 F.2d 343, 349 (6th Cir.
1990); United States v. One Parcel of Real Estate at
11885 S.W. 46 St., Miami, Florida, 715 F. Supp. 355, 359 (S.D.Fla.
1989); United States v. One Single Family Residence with
Outbuildings Located at 15621 S.W. 209th Ave., Miami, Florida,
699 F. Supp. 1531, 1536 (S.D.Fla. 1988), aff'd, 894 F.2d 1511
(11th Cir. 1990).
Here, Clara Smith is the "owner" of the leasehold. The
remaining seventeen members of her family are entitled to
possess, use and occupy the premises both as a consequence of
her ownership and their residence. See Clarke v. Morris,
46 Misc.2d 476, 477, 259 N.Y.S.2d 539, 540-41 (Civ.Ct.N.Y. County
Since Chenelle Smith did sell drugs from the apartment, her
independent interest in the property is subject to forfeiture.
To the extent that she has any legal right to remain in the
premises, that right, however defined, has been lost. Despite
the demise of Chenelle Smith's property right in the apartment,
her children, that is to say, the great-grandchildren of Clara
Smith, retain their independent right to remain as residents
and guests of their great-grandmother.
It is not necessary to decide if Chenelle Smith is barred
from the hospitality and protection of her grandmother, Clara
Smith, who does have a right to remain in the apartment. These
are matters best left to regulation by the Housing Authority
which has grievance procedures for dealing with situations such
as these. See New York City Housing Authority Management
Manual, Chap. VII, Section C.6.
This same relief is not available against Sylvia Smith or
Juanita Smith. The evidence against them only establishes that
they possessed crack. This is not sufficient to make their
legal rights in the apartment subject to forfeiture.
The Government requests an injunction prohibiting the
claimants or other occupants from using the apartment to commit
or facilitate narcotics offenses. Such an injunction is
authorized by statute. See 21 U.S.C. § 882 (1988). How such an
injunction can be enforced apart from state and federal
criminal statutes is not clear. The statute arguably provides
for an injunction. The Government has established the
prerequisites for obtaining an injunction. The injunction is
Even though the Government established probable cause to
believe that the property is subject to forfeiture, Clara
Smith's establishment of the "innocent owner" defense entitles
her to retain her home. Chenelle Smith, however, has lost her
property right to remain in the apartment. It is unnecessary to
reach claimants' constitutional challenges to the forfeiture
statutes. An injunction against use of the apartment to store
drugs or as a base for sale of drugs is granted. Submit an
appropriate judgment on five days notice. No costs or
disbursements are granted to either party.
© 1992-2003 VersusLaw Inc.