The opinion of the court was delivered by: CHARLES H. TENNEY
This is a forfeiture action brought by the United States of America ("the government"), pursuant to 21 U.S.C. § 881(a)(7) (1988), against real property based on that property's use to facilitate narcotics transactions. A bench trial was held on January 7-8, 1992, during which the court found in favor of the government.
16 Clinton Street ("the property") is a five-story brick building with eight apartments and two stores, located on the Lower East Side of Manhattan. David and Nathan Shuchat are the owners of the property. On June 27, 1989, pursuant to a seizure warrant issued by United States Magistrate Judge Michael H. Dolinger, United States Marshals seized the property, including the leasehold interests on the first floor, known as the Brunilda Luna Fabric Store ("south store") and the TTT Grocery and Candy Store ("north store"). On July 19, 1989, the Government filed a verified complaint against the defendant in rem, and on August 11, 1989, David and Nathan Shuchat filed a notice of claim for the return of the property.
Claimants argued in their papers and at trial that the government had not sustained its burden of showing a substantial connection between themselves and the illegal activity claimed to have occurred at the property and that the seizure of the property violated the Fifth and Eighth Amendments to the United States Constitution. For the reasons set forth below, the court found in favor of the government.
1. David Shuchat and his brother Nathan Shuchat are the joint owners of five pieces of property on the Lower East Side, including 16 Clinton Street. Trial transcript ("T.") 93-94, 137. The Shuchat brothers have been in the real estate business for approximately thirty years. Joint Pre-Trial Order 10; T. 108.
2. The Shuchats were not only aware of the pervasive drug-trafficking taking place on the Lower East Side, but had experienced problems in the past with the use of several of their own buildings for illegal drug activities. T. 127, 129-30, 132-33. For example, a grocery store leasing space in another of their buildings on the Lower East Side was closed by the City of New York for engaging in illegal drug activity. Subsequent tenants of that space had their store's operation and lease overseen by the City. T. 133. In addition, another one of the Shuchats' properties was without a front door for a period of time during which drug addicts had free access to the building and its hallways. T. 196.
3. David Shuchat lives four blocks from the property. T. 108. His brother Nathan Shuchat lives one and a half blocks from the property. T. 140.
4. Both brothers were responsible for collecting the rent for the property. Nathan Shuchat would collect the rent for three of the upstairs apartments, and David Shuchat would collect the rent for the other three apartments and the two stores.
Each brother would collect his portion of the rents by visiting the premises at some point during the first half of each month. Periodically, however, a tenant would be late with the rent, requiring additional visits to the property at various times throughout the month. T. 96, 104, 112, 142.
5. Because the property did not have a superintendent, David Shuchat would also have to visit the property from time to time in order to give repair people access to the appropriate facilities. T. 96-97.
6. The New York City Police Department ("Police Department") engaged in a four month undercover investigation of narcotics activity at the property. T. 12-75 passim.
8. The investigation led to the discovery of other narcotics distribution locations at 127 Stanton Street and 159 Essex Street, Apartment 3B. Id.
9. Customers visited the East Village Grocery and Deli at 127 Stanton Street and paid for an amount of heroin or cocaine. In exchange, the customer received a receipt which he or she would then take to the south store at the property where it would be exchanged in the rear for heroin or cocaine. T. 13, 59-60; Deposition of Susan Chang ("D.") 38.
10. Virtually no regular, legal business was conducted at the south store. Its customers were there for the purpose of buying drugs. D. 48.
11. In November and December 1988, undercover officers from the Police Department purchased large quantities of heroin from the ...