Rev. Stat. § 25-2124 (Reissue 1989)) -- and accordingly granted the government's motion for summary judgment. The court also issued a writ of assistance, concluding that "the plaintiff has shown that the Porters are currently unlawfully occupying the real properties at issue and that the plaintiff has requested the defendants to vacate the properties. To date the defendants have ignored the request. Under these circumstances I find it appropriate to issue a writ of assistance." Id. at *4.
It also warrants mention that courts have authorized the issuance of writs of assistance against non-parties to an action, like Castro in this case. As the Second Circuit has stated, "the All Writs Act authorizes a federal court in exceptional circumstances to issue such orders to persons 'who, though not parties to the original action or engaged in wrongdoing, are in a position to frustrate the implementation of a court order or the proper administration of justice, and encompasses even those who have not taken any affirmative action to hinder justice.'" Benjamin v. Malcolm, 803 F.2d 46, 53 (2d Cir. 1986) (quoting United States v. New York Tel. Co., 434 U.S. 159, 174, 54 L. Ed. 2d 376, 98 S. Ct. 364 (1977)), cert. denied, 480 U.S. 910 (1987); but see Gibbs v. Kinsey, 170 A.D.2d 1049, 566 N.Y.S.2d 117 (4th Dep't 1991) (vacating writ of assistance issued against individual who was not joined as party to proceeding; "even if [individual] has no legitimate interest in the property, [party] cannot evict her without commencing an eviction action or a summary holdover proceeding against her[.]").
Relying on the Third Circuit's decision in United States v. Stazola, 893 F.2d 34 (3d Cir. 1990), the government further argues that the Claimant and Castro cannot avail themselves of state law protections to avoid eviction. Stazola involved the government's efforts to evict two tenants from property that had been forfeited to it under 21 U.S.C. § 853. Upon being given notice by the Marshal demanding their evacuation based on the uninhabitability of the premises, the tenants, who claimed a possessory interest in the property by virtue of a month-to-month oral lease, filed a petition pursuant to § 853(n)(2) alleging a third-party interest in the forfeited property. Id. at 36. The district court conducted an evidentiary hearing, following which it authorized the eviction of the tenants. Id. at 37. The tenants appealed, contending, inter alia, that 21 U.S.C. § 903
required the court to consider state law defenses in determining the validity of their interests under § 853(n), and that Pennsylvania law prohibited termination of their leasehold while the premises were unfit for habitation. Id. The Third Circuit noted that the language of § 903 did "not automatically mandate the application of state landlord-tenant laws to § 853(n) determinations," id. at 38, although resort to state law ordinarily was necessary to determine the tenant's "'right, title, or interest in the property,'" id., as required by § 853(n). In any event, the court concluded that the tenants were afforded the full notice period and the opportunity to present their case that the applicable Pennsylvania law required, and that the provisions of the Pennsylvania law prohibiting eviction from uninhabitable property were not applicable in that case "where the United States, after acquiring the property through criminal forfeiture, is obliged by statute to dispose of it, and where the government's effort to evict [the tenants was] unrelated to tenant complaints and nonpayment of rent." Id. at 38-39. Finally, and most significantly for the purposes of the application presently before this court, the Third Circuit rejected the tenants' argument that the government was required to proceed in state court to obtain an eviction order, concluding that the broad power Congress conferred upon the court pursuant to § 853(g) to "take any action necessary 'to protect the interest of the United States in the property ordered forfeited,'" id. at 39 (quoting 21 U.S.C. § 853(g)), authorized the district court to evict the tenants and permit the government to dispose of the property expeditiously. Id.
The court finds the government's reliance on Stazola somewhat problematic because the forfeiture underlying the present case was ordered pursuant to § 881(a)(7), which does not have a provision conferring broad powers on the district court analogous to that contained in § 853. However, a recent Eleventh Circuit case -- United States v. Lot 5, Fox Grove, Alachua County, Fla., 23 F.3d 359 (11th Cir. 1994) -- does lend some support to the government's argument that resort to state law is not required. Relying on the Supremacy Clause, and not on § 903, the Eleventh Circuit ruled that § 881(a)(7) preempted the homestead protect ion provisions set forth in the Florida Constitution. In reaching this conclusion, the court noted that Congress intended § 881(a)(7) to be read broadly, and that the legislative history of the Comprehensive Crime Control Act of 1984 -- of which § 881(a)(7) is a part -- stated that the bill was "'intended to eliminate the statutory limitations and ambiguities that have frustrated active pursuit of forfeiture by Federal law enforcement agencies,'" and evinced a specific intent to extend civil forfeiture to homesteads. Id. at 363 (citations omitted). By analogy, then, the proposition that this court is empowered to issue a writ of assistance ordering the Claimant and Castro to leave the Premises would seem to be a reasonable one.
In brief, the following factors persuade the court that the government is entitled to the relief it seeks: (1) other courts have issued writs of assistance in similar circumstances; (2) courts' powers under the forfeiture laws have been construed broadly in analogous situations; (3) the Claimant and Castro have been afforded ample notice and opportunity to contest their removal and have failed to voice any arguments in opposition; and (4) the equities tip in the government's favor due to their procurement of ready, willing and able purchasers of the property and due to the Claimant's threat to destroy the Premises.
IT IS HEREBY ORDERED that pursuant to the All Writs Act, 28 U.S.C. § 1651(a), and upon application of the government, the Marshal is hereby empowered to enter and take possession of the Premises by whatever means are at its disposal, to evict all occupants and their personal property, and to dispose of the Premises in accordance with this court's Decree of Forfeiture.
Dated: Brooklyn, New York
August 10, 1994
I. LEO GLASSER, U.S.D.J.