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UNITED STATES v. CERTAIN

April 21, 1994

UNITED STATES OF AMERICA, Plaintiff,
v.
CERTAIN REAL PROPERTY AND PREMISES KNOWN AS 4003-4005 FIFTH AVENUE, BROOKLYN, NEW YORK, Defendant.



The opinion of the court was delivered by: THOMAS C. PLATT

 PLATT, Chief Judge

 Plaintiff United States of America moves pursuant to Federal Rule of Civil Procedure 56 for an Order of this Court granting summary judgment in this civil forfeiture proceeding under 21 U.S.C. § 881 and 18 U.S.C. § 981(a). The government contends that no claimant maintains any legal interest in the property superior to the government and without knowledge of the narcotics activity on the property and therefore summary judgment is appropriate. For the reasons stated herein, plaintiff's motion for summary judgment must be granted.

 Background

 Juan Antonio Tapia-Ortiz was found guilty of conspiring to possess and possession with intent to distribute heroin in a jury trial on February 12, 1992. Tapia-Ortiz was sentenced by this Court to a term of imprisonment of 480 months and fined $ 100,000.00 by this Court on July 9, 1993. United States v. Tapia-Ortiz, 91-CR-1014. This conviction and sentence is presently on appeal before the United States Court of Appeals for the Second Circuit. United States v. Tapia-Ortiz, No. 91-1435 (2d Cir. filed January 29, 1993).

 Tapia-Ortiz filed a Notice of Claim on June 3, 1992 claiming that the premises were not used in furtherance of the crimes for which he was convicted. Throughout discovery in this matter, however, Tapia-Ortiz asserted his Fifth Amendment privilege in response to the government's discovery requests. When Tapia-Ortiz sought to oppose the present motion with an affidavit denying the occurrence of any narcotics activity on the property, this Court refused to permit Tapia-Ortiz to withdraw his assertion of the Fifth Amendment privilege by interposing material previously claimed to be within the privilege. United States v. 4003-4005 Fifth Avenue, 840 F. Supp. 6 (E.D.N.Y. 1993). Notwithstanding the fact that Tapia-Ortiz has not submitted any affidavits or pointed to any evidence in support of his contention that the property was not used in furtherance of his narcotics activities, Tapia-Ortiz contends that his verified pleading asserting a claim to the property is sufficient to overcome the government's summary judgment motion.

 Discussion

 The government moves for summary judgment forfeiting the defendant property. Summary judgment is appropriate where the moving party demonstrates that there is no genuine issue of material fact such that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Where, as here, the moving party bears the burden of persuasion on the matter in dispute, the movant must come forward with sufficient evidence to establish a prima facie case under the applicable standard of proof. Id. at 331 (Brennan, J., dissenting). If the movant successfully carries his or her burden, the burden of production shifts to the nonmoving party who then must go beyond the pleadings and "designate specific facts showing there is a genuine issue for trial." Fed. Rule. Civ.P. 56(e).

 However, in the context of civil forfeiture, the burden of persuasion also shifts to the claimant upon the government's proof of probable cause justifying forfeiture of the property under the statute. United States v. Daccarett, 6 F.3d 37, 56 (2d Cir. 1993), cert. denied 114 S. Ct. 1294 (1994). Accordingly, in order to defeat a properly supported motion for summary judgment, the claimant opposing summary judgment may not merely identify facts in dispute but must come forward with "significant probative evidence" of material facts such that a rational jury could find for the claimant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 A. Claimant Tapia-Ortiz

 Tapia-Ortiz opposes the government's civil forfeiture motion by arguing that the government has failed to establish that the defendant property was used in furtherance of the crimes for which he was convicted. The government contends that Tapia-Ortiz is collaterally estopped from contesting that the subject property was used in furtherance of his narcotics trafficking crimes. See United States v. Gelb, 783 F. Supp. 748, 755 (E.D.N.Y. 1991). "It is well-settled that a criminal conviction, whether by jury verdict or guilty plea, constitutes estoppel in favor of the United States in a subsequent civil proceeding as to those matters determined by the judgment in the criminal case." United States v. Podell, 572 F.2d 31, 35 (2d Cir. 1978). Tapia-Ortiz contends that collateral estoppel should not attach because it is unclear from the record which of the several narcotics transactions attested to at trial were relied upon by the jury in reaching its findings. See United States v. One 1986 Firebird, 791 F. Supp. 29, 31 (D. Me. 1992) (facts relied upon must be "distinctly put in issue and directly determined").

 This Court need not decide the preclusive effect of Tapia-Ortiz's prior conviction in the present case because there is ample unrefuted evidence to carry the government's burden of proof in the present summary judgment motion. The government is not required to rely upon a criminal conviction to forfeit property under 21 U.S.C. § 881 (a)(7). Rather, the government "has the burden of proving only that there is probable cause for belief that a substantial connection exists between the money [or property] to be forfeited and the exchange of a controlled substance." United States v. U.S. Currency in The Amount of $ 228,536.00, 895 F.2d 908, 916 (2d Cir.), cert. denied, 495 U.S. 958 (1990). If the government carries its burden of proving probable cause, "the burden shifts to the claimant to demonstrate that the money [or property] was not used in violation of the statute." Id. A claimant may shoulder his or her burden of proving that the property was not used in violation of the statute by proving, by a preponderance of the evidence, "that the property was not in fact used unlawfully, or that the illegal conduct occurred without the owner's knowledge or consent." United States v. 63-29 Trimble Road, 812 F. Supp. 335, 337 (E.D.N.Y. 1992).

 "Probable cause is established if the government can show that it is has reasonable grounds, more than mere suspicion, to believe that the property is subject to forfeiture." Marine Midland Bank, N.A. v. United States, 11 F.3d 1119, 1126 (2d Cir. 1993). The government bases its motion for summary judgment upon excerpts from the transcript of Tapia-Ortiz's trial and supplemental affidavits of a government witness setting forth first hand knowledge of narcotics transactions that occurred at the defendant premises in 1991. It may not be disputed that this testimony, subjected to cross-examination at trial and reiterated in the accompanying affidavit, is sufficient to establish "reasonable grounds" to believe that narcotics transactions took place at the defendant property. See United States v. 15 Black Ledge Drive, 897 F.2d 97, 101 (2d Cir. 1990) (first hand affidavits sufficient to establish probable cause); United States v. 38 Whalers Cove Drive, 954 F.2d 29, 32 (2d Cir.), cert. denied, 113 S. Ct. 55 (1992) (confidential informant's testimony concerning two transactions sufficient). Therefore, the government has met its burden of ...


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