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U.S. v. REAL PROPERTY

March 19, 2003

UNITED STATES OF AMERICA, PLAINTIFF, AGAINST REAL PROPERTY AND PREMISES KNOWN AS 464 MYRTLE AVENUE AND 181 WASHINGTON AVENUE, BROOKLYN, NEW YORK, DEFENDANT.


The opinion of the court was delivered by: I. Leo Glasser, United States District Judge

MEMORANDUM AND ORDER

Plaintiff United States of America (the "government") moves for summary judgment on its civil forfeiture claim pursuant to 21 U.S.C. § 881 regarding the real property located at 464 Myrtle Avenue and 181 Washington Avenue in Brooklyn, New York (the "defendant property"). Claimant and owner of the defendant property Sofia Collado opposes the forfeiture on the grounds that she is an innocent owner and that the proposed forfeiture would be unconstitutional under the Excessive Fines Clause. The undisputed evidence establishes that the defendant property is subject to forfeiture. Further, as explained below, even if Mrs. Collado's denial of actual knowledge of her son's criminal activity is credited, her admissions that she had suspicions and the actions she took on those suspicions show that at best she willfully blinded and consciously avoided that which was otherwise painfully apparent to her. Summary judgment is awarded to the government.

BACKGROUND

Mrs. Collado is the title owner of the defendant property. (Rule 56.1 Statement, ¶ 1.) Mrs. Collado was born in the Dominican Republic on September 6, 1939, and moved to the United States more than thirty years ago. (Collado Aff. ¶ 4.) Mrs. Collado and her husband Rafael Collado Sr. purchased the defendant property on March 16, 1983. (Id., ¶ 2.) Mr. Collado died during the pendency of this action, and his interest in the property passed to Mrs. Collado. (Id., ¶ 2.) The property includes a three story building with one residential apartment on each of the second and third floors, which are accessible through a common entrance at 181 Washington Avenue (the "apartment entrance"). (O'Neill Dec., ¶ 4.) The first floor is occupied by a grocery store called Collado and Son the entrance to which faces Myrtle Avenue at 464 Myrtle Avenue (the "grocery store entrance"). (Id.) Mr. and Mrs. Collado owned and operated the grocery store. (Id.) Mrs. Collado did not live at the defendant property. but at the relevant times, her son Rafael Collado Jr. and his girlfriend Angela Lorenzo lived in the second floor apartment on the defendant property. (O'Neill Dec. ¶ 4.) The fair market value of the defendant property is $385,000. (See Rule 56.1 Statement ¶ 31; Gay Dec., ¶ 3.)

The Undisputed Evidence of Narcotics Trafficking on and around the Defendant Property

The government does not claim that Mrs. Collado actually observed any of the events that occurred outside of the grocery store. Even excluding the events that occurred wholly in the vicinity of the apartment entrance (and therefore were likely invisible to Mrs. Collado since she could only see what transpired in the store and just outside its entrance), the government can point to eleven events over the course of one year that Mrs. Collado more likely than not saw or overheard.

On June 13, 1997, Rafael Collado Jr. exited the grocery store and entered a vehicle parked outside in which he sold one ounce of heroin to an undercover officer in exchange for three hundred dollars. (Rule 56.1 Statement. ¶¶ 2-3; O'Neill Dec. ¶ 8.)

On July 11, 1997, an associate and fellow employee of Rafael Collado Jr., Hector Sanchez, met an undercover officer in the grocery store. (Id., ¶ 6.) They went outside where Sanchez sold thirty grams of heroin to the undercover officer for three thousand dollars. (Id.)

On January 2, 1998, Rafael Collado Jr. spoke by telephone from the grocery store with David Rodriguez and ordered two kilograms of cocaine for a price of thirty seven thousand dollars using coded terms.*fn1 (Id., ¶ 8.) Shortly thereafter, Rodriguez entered the defendant property carrying a black shoulder bag but left without it, using the apartment entrance both times. (Id., ¶ 9-10; see O'Neill Dec. ¶ 10.) Later that night, or rather in the early hours of the morning of January 3, Rafael Collado Jr. spoke by telephone from the grocery store to Angela Lorenzo who was in the apartment on the second floor, and told her to give "the two presents" to "Louie." (Id., ¶ 11.) Not long thereafter, Lorenzo distributed two kilograms of heroin to Louis Morales. (Id., ¶ 12.)

On January 4, 1998, Rafael Collado Jr. spoke by telephone from the grocery store to an unidentified person and asked if "you bringing me some loot from that little boy?" (Id., ¶ 13-14.) According to Sergeant O'Neill, "little boy" is a street term for heroin. (O'Neill Dec. ¶ 18.)

On January 7, 1998, Rafael Collado Jr. spoke by telephone from the grocery store and offered, by using coded phrases, to sell another person cocaine for the price of $18,500 per kilogram. (Id., ¶ 15.) Specifically, they referred to cocaine by using the term "women", a street term for cocaine, and negotiated the price by asking "Where are they gonna live" to which Rafael Collado Jr. responded, "oh . . . eighteen and a half." (O'Neill Dec. ¶ 20, Gov't Ex. 11. at 1.)

On January 25, 1998, Reginald Velez spoke by telephone to Rafael Collado Jr., who was at the grocery store. Velez said that he had shot another person believed to have stolen drugs from Rafael Collado Jr., and that Velez had recovered some drugs and given them to his brother for resale. (Id., ¶ 16-17.)

On February 18, 1998, Velez again spoke by telephone with Rafael Collado Jr., who was at the grocery store. Velez asked Rafael Collado Jr. if he was interested in selling heroin to a customer. (Id., ¶ 21.)

On February 19, 1998, an unidentified woman entered the grocery store and approached Rafael Collado Jr., who exited the grocery store with her and spoke briefly. (Id., ¶ 22; O'Neill Dec. ¶ 39.) Rafael Collado Jr. then entered through the apartment entrance and returned shortly thereafter with a paper bag that ...


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