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UNITED STATES v. REAL PROP. & PREMISES KNOWN AS 63

August 10, 1994

UNITED STATES OF AMERICA, Plaintiff,
v.
REAL PROPERTY AND PREMISES KNOWN AS 63-39 TRIMBLE ROAD, WOODSIDE, NEW YORK, Defendant.



The opinion of the court was delivered by: I. LEO GLASSER

 GLASSER, United States District Judge:

 Plaintiff United States of America ("plaintiff" or the "government"), moving by order to show cause, seeks a writ of assistance pursuant to the All Writs Act, 28 U.S.C. § 1651(a), authorizing the United States Marshal's Service (the "Marshal") to take possession of defendant Real Property and Premises Known as 63-39 Trimble Road, Woodside, New York (the "Premises"). Notwithstanding the government's representations that the papers were served on the Premises on July 27, 1994, neither claimant Betty Aldeco (the "Claimant") nor her son, Hugo Castro, submitted papers or appeared at oral argument on August 9, 1994 to show cause why the writ should not be issued. For the reasons described below, the court grants the government's application.

 FACTS

 The underlying forfeiture action was brought against defendant Premises pursuant to 21 U.S.C. § 881(a)(7), alleging that the Premises were used to facilitate trafficking in cocaine in violation of 21 U.S.C. §§ 841 et seq. After a bench trial conducted on November 13, 1991, this court ordered the forfeiture of defendant Premises by Memorandum and Order dated September 9, 1992, and judgment dated September 18, 1992. Following entry of the judgment, the Claimant and Juan Carlos Aldeco (deceased), the owners of the Premises, filed a Notice of Appeal to the Second Circuit. The appeal was dismissed by order dated February 18, 1993.

 The Marshal took possession of the Premises on April 4, 1993. Declaration of August v. Sellitto, Dated July 25, 1994 ("Sellitto Decl.") P 7. The Marshal permitted Castro to remain on the Premises while they were marketed for sale pursuant to an occupancy agreement, which required Castro to pay $ 550 per month in rent. Id. The government alleges that to date, Castro has paid only $ 2,000 of the $ 7,150 owed to the Marshal under the agreement. Id. The government further alleges that upon her release from incarceration, the Claimant also took up residence at the Premises. Id. P 8.

 In January 1994, the Marshal accepted an offer to purchase the Premises, which was memorialized by contract on March 25, 1994. Id. PP 9, 12. On February 3, 1994, Deputy Marshals Craig Donlan and Chris Horemis informed Castro that he should begin to make arrangements to vacate the Premises. *fn1" Id. PP 9-10. On February 14, 1994, Deputies Donlan and Richard Viets served the Claimant with written notice instructing her and Castro to vacate the Premises within thirty days. Id. P 11. *fn2" Castro and the Claimant failed to vacate the Premises within thirty days, and on May 4, 1994, Deputies Viets and Horemis again visited the Claimant to discuss with her the need to vacate the Premises; the Claimant refused to acknowledge that she was required to leave. Id. P 13. Deputies Horemis and Tavares returned to the Premises a fourth time on May 17, 1994, and read to the Claimant in Spanish the notice to vacate. Id. P 14. At this time, the Claimant "stated that she would not leave the premises and would set fire to the premises." Id. P 14.

 Finally, the government represents that the proposed purchasers have obtained a mortgage loan and are ready to consummate the sale once the Premises are vacated. Id. P 15.

 DISCUSSION

 The All Writs Act, 28 U.S.C. § 1651(a) (the "Act"), provides that "the Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." The Act accordingly authorizes district courts to issue writs of assistance to enforce final judgments. See Hamilton v. Nakai, 453 F.2d 152, 157 (9th Cir. 1971), cert. denied, 406 U.S. 945, 32 L. Ed. 2d 332, 92 S. Ct. 2044 (1972); cf. United States v. One (1) Douglas A-26B Aircraft, 662 F.2d 1372, 1373-74 (11th Cir. 1981) (writ of assistance pursuant to Fed. R. Civ. P. 70 is "designed 'to deal with parties who seek to thwart judgments by refusals to comply with orders to perform specific acts[.]'") (quoting 12 C. Wright and A. Miller, Federal Practice & Procedure § 3021 (1973)). *fn3"

 Courts have issued writs of assistance in a wide variety of circumstances; while the court has found no cases in which a writ of assistance was issued pursuant to the All Writs Act to effectuate a decree of forfeiture, it has located -- and the government has cited -- several cases involving circumstances reasonably similar to those in the present case. For example, in United States v. Young, 806 F.2d 805 (8th Cir. 1986), cert. denied, 484 U.S. 836, 98 L. Ed. 2d 76, 108 S. Ct. 117 (1987), the district court issued an order evicting a farmer from the real property he had lost ownership of after he failed to meet his loan obligations to the Farmers Home Administration and the bank foreclosed on the property. When the farmer refused to leave the property, the government petitioned the district court for a writ of assistance based on the earlier order of eviction. The Eighth Circuit concluded that the district court properly granted the writ "because the government possessed a valid sheriff's deed and was, therefore, entitled to possession of the property." Id. at 807.

 Similarly, in United States v. 0.37 of an Acre of Land, 577 F. Supp. 236 (D. Mass. 1983), the government acquired title by eminent domain to certain real estate, following which the court issued an order for delivery of possession to the government. A tenant in the subject building refused to surrender possession, and the government sought a writ of assistance to enforce the court's order; the tenant, in turn, claimed that the Department of the Interior had violated its duty to provide him with relocation assistance. Finding that the government had fulfilled its obligations and had provided adequate notice to the tenant that he was required to vacate the premises, the court concluded that a "balancing of the competing equities" tipped in favor of the government, and accordingly issued a writ of assistance. Id. at 238.

 Finally, in United States v. Porter, 1993 U.S. Dist. LEXIS 4211, 1993 WL 95364 (D. Neb. Jan. 7, 1993), the government sought an order ejecting the defendants from two parcels of real property it had acquired ownership to through a tax levy. The court concluded that the government had established its entitlement to an order of ejectment under Nebraska law -- which requires a plaintiff to show that he has a legal estate, that he is entitled to possession of the legal estate, and that the defendant unlawfully is preventing the plaintiff from taking possession, id. at *3 (citing Neb. 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 ...


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