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July 27, 1998

UNITED STATES OF AMERICA, against JAMES IDA, et al., Defendants. JAMES HICKEY, Petitioner.

The opinion of the court was delivered by: KAPLAN


 LEWIS A. KAPLAN, District Judge.

 The jury in the criminal trial found the defendant James Ida guilty of violating the Racketeer Influenced and Corrupt Organizations Act, better known as RICO, among other offenses. It further determined that Ida had an interest in certain real property and appurtenances located in Katonah which is in the Town of Bedford in Westchester County, New York. That property is owned of record by the petitioner in this proceeding, James Hickey. The jury further found that all of Ida's right, title and interest in the Katonah property constituted or was derived from proceeds that Ida obtained from the racketeering activity of which he was convicted. In consequence, the Court entered an order on the jury verdict forfeiting the Katonah property to the United States. *fn1" The Court now has before it the petition of James Hickey, brought under 18 U.S.C. § 1963(l), to determine that he owns and has the unencumbered right to possession of the Katonah property. The issue is whether Hickey has proved by a preponderance of the evidence that the property, colloquially stated, in fact belongs to him. These are the Court's findings following an evidentiary hearing. Also before the Court is the government's post-hearing application to reopen the record to take additional evidence.


 Mr. Hickey is a businessman who lives and works in Westchester County. He has interests in several waste hauling companies and owns some real estate. According to tax returns and other materials in evidence, he is a person of quite considerable means. He bought the Katonah property in January 1993 for $ 900,000, which he paid from bank or investment accounts in his own name in which there were more than ample funds to cover the cost of the purchase. Legal title to the property has been in Mr. Hickey's name at all times relevant to the petition. Moreover, other documents relating to the property, including insurance policies, reflect as a matter of record that Mr. Hickey is the owner. The real question is whether and to what extent Hickey bought and holds title to the property as a front for Ida who, at least prior to the trial, was the consigliere of the Genovese organized crime family.

 The evidence demonstrates, as the jury at least implicitly found in the criminal trial, that the property was bought for and used exclusively by Ida and his family. Hickey's interest in the property began in late 1992, and it is important to focus on his personal circumstances at that time.

 Hickey then only recently had been divorced from his wife of many years. He had moved in with another woman, now Elizabeth Hickey, whom he later married in April 1993. He first became aware of the Katonah property when he and Mr. Ida visited a Bedford real estate broker named Cole. Hickey told the broker that he was looking for a property on which he could keep his horses. Either he or Ida indicated to Mr. Cole that Ida was Hickey's "horse man." This was false, as Hickey did not then and never subsequently has had any horses. Ida, on the other hand, owned a horse which he kept on Staten Island. Moreover, when Ida subsequently was arrested, he was found in possession of membership cards made out in his name indicating his membership in the American Quarter Horse Association and the National Cutting Horse Association, and it is undisputed that Ida, subsequent to Hickey's purchase of the property, maintained horses of his own on the property.

 Mr. Cole showed Hickey and Ida the Katonah property which is a very secluded and remote eleven-acre parcel with a house and a barn. They visited the property together on a number of occasions. Mr. Hickey, on one or more of those visits, indicated to one or possibly both real estate brokers involved that he soon was to be remarried, which was accurate, and that children would be moving on to the property. At that time Mr. Ida had young children. Mr. Hickey did not. Mr. Hickey ultimately bought the property. The closing was in January 1993.

 Soon thereafter, Mr. Hickey commissioned substantial renovations at considerable expense. At least as a matter of the immediate paper trail, there is no doubt that he paid for the renovations himself. It was Mr. Ida, however, who moved in not long after the closing. Mr. Ida was followed soon thereafter by his wife and the young children, and the Ida family before long was well ensconced on the property where, as indicated, they kept a number of horses. They arranged for the care of the animals by a local veterinarian. They shooed trespassers away, and they exercised dominion and control over the premises in various ways.

 Mr. Hickey's explanation for Ida's presence on the property is this: He says that he bought the house as a residence for himself and his wife-to-be or, if that did not work out, as an investment. He says that he discarded the idea of living there with Elizabeth only some time after the April 1993 wedding, when Elizabeth told Mr. Hickey that she didn't want to live in such an secluded location. In the meantime, according to Hickey, Hickey was doing very substantial renovations. Mr. Ida was looking for a place to live, and Hickey decided that it would be a good idea to have someone on the property to protect his investment. He therefore says that, in substance, he invited Ida to house sit and allowed Ida and his family to remain without payment of rent for the intervening four and a half years. The Court does not find this story persuasive.

 Mr. Hickey acknowledged that the present Mrs. Hickey never saw the house before Hickey bought it. He said that he installed a new kitchen in the house without consulting her. Either of those circumstances would be extraordinarily unlikely if, in fact, Mr. Hickey intended to occupy the property with her. Furthermore, Mr. Hickey's statement to the broker that there would be children on the property was true: Ida's children were the children he expected to be on the property. Neither he nor the current Mrs. Hickey had any children who would have resided with them even if they had moved in. Nor is the Court persuaded by the investment theory.

 Furthermore, it has to be borne in mind that there is every reason to suppose that this house was bought to meet Ida's, and not Hickey's, specific requirements. It was Ida who wanted a property with facilities for horses, not Hickey. It was Ida, not the current Mrs. Hickey, who went to see the property with Mr. Hickey before it was purchased. It was Ida who was interested in nature and remote areas, owning a log home on a large parcel in the middle of the Adirondack State Park, describing himself to others as a big game hunter, and bragging that he had shot a mountain lion and of taking expensive trips to Alaska in the hope of killing a large grizzly bear. His background and interests are far more consistent than Mr. Hickey's, to the extent the latter are of record, with interest in a property of this nature.

 It is significant also, although certainly not dispositive, that after buying the property Mr. Hickey caused the installation of a very elaborate security system that included a number of remotely operated color television cameras to monitor the property, and he waged a lengthy court battle and paid a $ 100,000 settlement to the Westchester Land Trust to secure, perhaps among other things, the right to maintain a remotely operated security gate on a portion of the access road to the property that ran through land owned by the trust. While the isolated location of the house might have caused any homeowner to take security measures, the likelihood that the real motive for that installation was to protect Ida's personal security from the threats accompanying a life in the world of organized crime is considerably greater than the likelihood that Hickey would have installed such an expensive and comprehensive system in a house that he never intended to occupy.

 The government's contention that Mr. Hickey was simply a front for Ida's ownership of the Katonah property draws strength from other aspects of the relationship between Hickey and Ida and the improbability of Hickey's account of that relationship. According to Hickey, he first met Ida as a result of their mutual enthusiasm for motorcycles. Mr. Hickey was in the habit of riding his motorcycle on weekends, and he said he encountered Mr. Ida for the first time in 1991 or 1992 at a biker hang out in Connecticut on one of those occasions. For a period of months, they saw each other essentially by chance on Sundays when they both happened to be at that particular location along with a lot of other motorcyclists. They became friends and they gradually began to see more of one another. According to Mr. Hickey, this growing relationship or closeness was ...

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