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UNITED STATES v. ALL ASSETS OF BLUE CHIP COFFEE

October 27, 1993

UNITED STATES, Plaintiff,
v.
ALL ASSETS OF BLUE CHIP COFFEE, INC., ET AL., Defendant.



The opinion of the court was delivered by: STERLING JOHNSON, JR.

 JOHNSON, District Judge:

 Plaintiff United States of America ("Government") has moved pursuant to Rule 56 of the Federal Rules of Civil Procedure for partial summary judgment, granting forfeiture of claimant Anthony Viola's ("Viola") interest in the defendants in rem. Claimants Anthony Viola and Anna Viola ("Claimants") have cross-moved for partial summary judgment, and additionally moved for an Order granting leave to claimant Anna Viola ("Anna Viola") to file a Notice of Claim out of time and to file an Answer. *fn1"

 BACKGROUND

 On December 4, 1992, after a jury trial in this Court Viola was convicted of numerous crimes including conspiring and attempting to possess cocaine, trafficking in huge amounts of stolen goods and violating the Racketeer Influenced and Corrupt Organizations Act (RICO). United States v. Anthony Viola, et al., 91 CR 800 (S-5) (SJ) ("United States v. Viola"). The RICO enterprise in which Viola was convicted of participating was headquartered at the offices of Blue Chip Coffee, Inc. ("Blue Chip"), a company which Viola owns and operates. Blue Chip is headquartered at the defendant premises 615 Sackett Street, Brooklyn, New York ("615 Sackett"), 601 Sackett Street, Brooklyn New York ("601 Sackett") and 41 Summit Street, Brooklyn, New York ("41 Summit"). Blue Chip also occupies a warehouse at 45 Summit Street, Brooklyn, New York ("45 Summit") which is also a defendant in this action.

 The Government contends that, as a result of their role in Viola's criminal enterprises, all of these properties including defendant Blue Chip are subject to forfeiture pursuant to 21 U.S.C. § 881 and 18 U.S.C. § 981.

 DISCUSSION

 Motions for Summary Judgment

 The government has moved for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure; the claimants have cross-moved for summary judgment.

 Summary judgment is proper if the evidence developed during discovery shows that there is no genuine issue as to any material fact and that the moving party is thus entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). The court's function is not to resolve disputed issues of fact, but only to determine whether there is a genuine issue to be tried. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Eastman Machine Co. v. United States, 841 F.2d 469, 473 (2d Cir. 1988).

 In making this determination, the court is required to view the evidence in the light most favorable to the nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Adickes v. S.H. Kress and Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). Where, as here, both parties move for partial summary judgment, the court generally is required to assess each motion on its own merits and to view the evidence in the light most favorable to the party opposing the motion, drawing all reasonable inferences in favor of that party. United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962); Eastman Machine, 841 F.2d at 473

 In a forfeiture proceeding, however, the burden of proving whether a genuine issue of material fact exists is somewhat modified, as is the burden shifting between the movant and the claimant. United States v. 303 West 116th Street, 901 F.2d 288, 290-91 (2d Cir. 1990) In an action for civil forfeiture, the government must demonstrate that there was probable cause for the forfeiture, that is that there were reasonable grounds to believe that the property was subject to forfeiture. Id. at 291. Once the government has met this initial burden, the burden shifts to claimant to establish either that the property was not used for an unlawful purpose or that such use was without the claimant's knowledge and consent. Id.

 Two different statutes at issue here provide for the forfeiture of property that has been involved in criminal enterprises. The drug forfeiture statute, 21 U.S.C § 881, subjects to forfeiture any property "which is used, or intended to be used, in any manner or part, to commit, or to facilitate" the commission of narcotics transactions. 21 U.S.C. § 881(a)(7). The second civil forfeiture statute renders forfeitable any property "involved" in trafficking in or "laundering" unlawfully obtained goods, in violation of 18 U.S.C. § 1956. 18 U.S.C. § 981(a)(1)(A).

 The government argues that the defendant properties are subject to forfeiture as a matter of law. The government alleges that the defendant 615 Sackett was continuously used by Viola to plot the narcotics dealings for which he was convicted. The government further alleges that the unlawfully obtained goods, in which Viola was convicted of trafficking, were stored on the premises of defendants 601 Sackett, 41 Summit, and 45 Summit and that the trafficking occurred through the vehicle of defendant Blue Chip. Claimant argues that defendants 601 Sackett, 41 Summit, 45 Summit and Blue Chip are not subject to forfeiture as the statute permits the forfeiture only of properties acquired with the proceeds of illegal activity.

 For the following reasons, the government's motion for partial summary judgment is granted in its entirety. The claimants' motion for ...


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