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United States of America v. Real Property and Premises Known As 90-23

March 31, 2011

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
REAL PROPERTY AND PREMISES KNOWN AS 90-23 201ST STREET, HOLLIS, NEW YORK, ET AL., DEFENDANTS IN REM.



The opinion of the court was delivered by: Ross, United States District Judge:

OPINION & ORDER

On November 16, 2005, the government filed an amended verified complaint in rem against various properties seeking civil forfeiture pursuant to 21 U.S.C. § 881. On December 16, 2005, claimant Ronald Young ("claimant" or "Young") filed a claim of interest in those properties. Although Young was represented at the time he filed his claim, he is currently proceeding pro se in this action. No other claim of interest has been filed in the properties, and the time to do so has expired. Presently before the court are cross-motions for summary judgment by the government and claimant. The central questions presented in these motions are whether (i) certain evidence must be suppressed in this action under the Fourth Amendment to the United States Constitution and (ii) the government has met its burden to demonstrate that the properties at issue are subject to forfeiture. For the reasons that follow, both motions are denied.

BACKGROUND

Young is a citizen of Jamaica. Jan. 28, 2010 Deposition of Ronald Young ("Young Depo."), Dkt. No. 89-1, at 10. He is not, nor has he ever been, a citizen of the United States. Id. Young entered the United States in 1968 and subsequently obtained permanent resident status in 1972. Id. at 9-11. On May 6, 1987, in New York State Supreme Court, Young was convicted of Criminal Possession of a Controlled Substance in the Third Degree in violation of New York Penal Law § 220.16(1). United States' Statement Pursuant to Local Rule 56.1 ("Gov't 56.1"), Dkt. No. 83-2, Ex. E at 1. Young was sentenced to one to three years in prison. Id. On April 12, 1989, the Immigration and Naturalization Service ("INS") commenced deportation proceedings against Young, on the grounds that he was deportable pursuant to § 241(a)(11) of the Immigration and Nationality Act as an alien who violated a law relating to a controlled substance. Id. at 2. On September 26, 1989, Young conceded that he was deportable, and he was ordered deported on February 1, 1990. Id. Young was deported to Jamaica on November 6, 1996. Id. Approximately four to six weeks following his deportation, Young illegally reentered the United States. Id.; Young Depo. at 13. In February 2000, in New York State Supreme Court, Young was convicted of Criminal Possession of Controlled Substance in the Seventh Degree in violation of New York State Penal Law § 220.03. Gov't 56.1 ¶ 14. Because INS was not aware of that arrest, no deportation proceedings were initiated against Young at that time. Transcript of Hearing at 9, United States v. Young, No. 05-CR-846 (E.D.N.Y. June 8, 2006) ("June 8 Tr."). On October 13, 2005, after receiving information that Young was in the country illegally and engaged in unlawful activity, investigators operating as part of the United States Marshal Service's Regional Fugitive Task Force ("Task Force") arrested defendant at his home in Hollis, New York. Id. Ex. B at 11; June 8 Tr. at 12. That arrest gave rise to a criminal action against Young and this civil forfeiture action.

I. The Criminal Action

In connection with his arrest on October 13, 2005, the government filed a criminal complaint against Young in this court on November 16, 2005. Gov't 56.1 Ex. B at 11. That complaint charged Young with illegal re-entry into the United States in violation of 8 U.S.C. §§ 1326(a),(b)(2). Id. On June 8, 2006, the court held a pre-trial hearing in the criminal action to determine whether certain evidence should be suppressed from Young's trial.

At the hearing, Immigration and Customs Enforcement ("ICE") Special Agent Thomas Kilbride testified before the court regarding Young's October 13, 2005 arrest. Kilbride is a member of the Task Force, the primary responsibility of which is to locate and apprehend fugitives. June 8 Tr. at 4. Kilbride testified that, in April 2005, he received information from a New York City Police Department ("NYPD") sergeant, who had Young's son Richard Young ("Richard") in custody, that Young was in the United States illegally, trafficking narcotics, and in possession of firearms. June 8 Tr. at 5. Subsequently, Kilbride obtained Young's immigration file in May 2005. Id. at 6. The file included, among other things, photographs of Young, his fingerprints, information about his initial entry into the United States and his deportation, and a "rap sheet" listing his arrests and convictions. Id. at 6-7. Following a delay of several months, in October 2005, the Task Force decided to apprehend Young and, if possible, also to apprehend his son Richard, who at that time was a fugitive. Id. at 5.

At approximately 6 a.m. on the morning of October 13, 2005, Kilbride and six Task Force agents -- which included NYPD officers and ICE agents -- went to the home of Young located at 90-23 201st Street, Hollis, New York. Id. at 12; Gov't 56.1 Ex. L at 8. Kilbride testified that he knew Young lived at that address because all but one of the arrests listed on Young's rap sheet were associated with it and because Young's current, valid New York State driver's license listed that address. June 8 Tr. at 12-13. On that morning, Kilbride brought with him a picture of Young that was taken at the time of his 1999 arrest. Id. at 11. Kilbride also had an arrest warrant for Young's son Richard with him, although Kilbride testified that he had no probable cause or reasonable suspicion to believe that Richard was at that location at the time. Id. at 13-15. Kilbride did not have an arrest warrant for Young, even though the Task Force specifically went to Young's home to arrest him. Id. at 15.

Kilbride testified that, when the Task Force arrived at Young's home, three agents went to the front of the residence, two went to the back, and one went to each side. Id. The agents were armed. Id. at 113. He testified that the agents knocked on Young's door, but did not receive an immediate response to their knock. Id. at 15. The agents then "knocked" and "pounded" on all of the doors and on the windows for fifteen minutes, until Young finally answered the door. Id. at 16, 113. Kilbride testified that, when Young opened the door, Young stood on the inside of the dwelling directly across the threshold of the doorway from him. Id. at 110. Kilbride stood on the outside of the dwelling. Id. At that point, Kilbride stated to Young, "Police. What's your name?" Id. at 111. According to Kilbride, Young responded "Ronald Young." Id. Kilbride then stated to Young: "We need to come in and ask you some questions. Can we come in?" Id. at 17. Kilbride testified that Young "wasn't happy" about letting the police in, because it seemed like he was "annoyed" that they had awakened him. Id. at 112, 115. But Kilbride stated that Young "grudgingly" let the agents into his home. Id. at 17. Kilbride then took "one step into the living room on the other side of the threshold, in the inside of the building," where Young was standing right in front of him. Id. at 112-113. Kilbride testified that, once inside, he told Young that he was under arrest because he had been deported from the United States. Id. at 18, 114. Kilbride handcuffed Young and then sat him on his couch, "which is right inside the door." Id. The agents then conducted a security sweep of the house, during which they located Young's fourteen-year-old daughter upstairs. Id.

Kilbride testified that, following the security sweep, he informed Young of his Miranda rights; Young waived his rights and agreed to talk to Kilbride. Id. at 18, 21-23. According to Kilbride, Young then admitted that he was previously convicted of a drug offense and deported from the United States. Id. at 18. Kilbride asked Young if he would consent to a search of his residence and his three vehicles, which were located outside the home; Young agreed and signed a consent-to-search form. Id. at 24; Gov't 56.1 Ex. K at 1.

Kilbride's official report related to Young's arrest states that the search of the home yielded the following drugs and drug-related paraphernalia: approximately four ounces of powdered cocaine; a white plastic bottle and plastic jar labeled "lactose";*fn1 approximately four ounces of marijuana; two police scanners; a triple beam scale with cocaine residue; a digital scale in a black leather case; eight plastic bags with smaller clear envelopes contained in the bags. Gov't 56.1 Ex. L at 8-9. The search also yielded nine-thousand dollars in various cash denominations found in Young's bedroom and seven-hundred dollars in various cash denominations found in Young's wallet. Gov't 56.1 Ex. L at 8-9. That cash was subsequently ion scan tested and found to contain high concentrations of cocaine. Gov't 56.1 ¶ 12. The agents also seized a gold bracelet and four gold rings uncovered in the search of the home. Gov't 56.1 Ex. Q at 174; June 8 Tr. at 25. The search of Young's cars did not yield any contraband. Gov't 56.1 Ex. L at 8-9.

Kilbride's report also states that, following the search of his home, Young admitted that he had been in the narcotics trafficking business since 1996 or 1997, had no source of income other than narcotics trafficking, had not paid taxes or worked at a legitimate business since reentering the country, bought his three vehicles with proceeds from narcotics trafficking, and made the mortgage payments on his home with proceeds from narcotics trafficking. Id. at 9-10.

Subsequently, Young agreed to cooperate with agents and comply with their request to contact his cocaine supplier. June 8 Tr. 26-27. Young contacted his supplier by phone and asked him to bring a new supply of cocaine to Young's home. Id. Kilbride testified that he did not promise Young that he would not be prosecuted in exchange for his cooperation. Id. Young contacted his supplier by phone at approximately 9 a.m. Gov't 56.1 Ex. L at 10. At approximately 10:30 a.m., two individuals arrived at Young's home with seven ounces of cocaine. Id.; June 8 Tr. at 27. Both individuals were arrested by the agents. Id.

At the June 8, 2006 evidentiary hearing before this court, Young also testified regarding his arrest. He gave an account of the events of October 13, 2005 that differed greatly from Kilbride's testimony. Young testified that he was in his upstairs bathroom on that morning when he heard his front doorbell ring several times. June 8 Tr. at 88-89. He walked downstairs and observed three to four men standing outside his front door. Id. He then heard a man inside his house say "Don't move" and saw four men running through his kitchen with their guns drawn. Id. Young testified that the men had entered through the rear door of his home. Id. at 89-90. Young claimed that the men did not identify themselves. Id. at 91. He stated that one of them approached him and knocked him to the floor by punching him in the right side of the ribs. Id. at 91-92. Young testified that he was arrested on the ground between his dining room and living room. Id. at 88. He asserted that Kilbride was not the arresting officer and that Kilbride was not in the house when he was arrested. Id. at 92. Young claimed that, after he was arrested, the officers inside the home let in the officers at the front door, including Kilbride. Id. According to Young, the officers then searched his home without his consent. Id. at 93. Young claimed that, after the officers found the drugs in his home, Kilbride told him that he would not be charged with a drug crime if he signed the consent-to-search form; thus, Young signed the form. Id. at 93-94. Young further testified that Kilbride told him that he would not be arrested if he cooperated by calling his drug supplier and asking him to deliver cocaine to the house. Id. at 94. Young therefore agreed to call his supplier. Id.

Following the testimony of the witnesses at the evidentiary hearing, the court noted the "vast discrepancy in terms of what happened." Id. at 117. Even accepting Kilbride's version of events, however, the court stated that it had "serious problems as to whether or not the government has met its burden of establishing voluntary consent to enter the house, when, very candidly, [Kilbride testified that the Task Force] went there to arrest him without a warrant." Id. at 118. The court further stated that, absent valid consent, under the Supreme Court's decision in Payton v. New York, 445 U.S. 573 (1980), it would be obligated to suppress all of the evidence obtained in the home as tainted by an illegal warrantless arrest. Id. at 119, 122-123.

At a pre-trial hearing the following week, on June 12, 2006, the court specifically found that the government had not met its burden to prove that Young voluntarily consented to the agents' entry into his house. Transcript of Hearing at 3, 7-8, United States v. Young, No. 05-CR-846 (E.D.N.Y. June 12, 2006) ("June 12 Tr."). The court stated that, under Payton, it would likely suppress "all of the evidence that came from the visit to the apartment on that day." Id. at

3. Nonetheless, the court stated that it would not suppress the prosecution of Young for illegal re-entry. Id. Because the government possessed independent evidence of all the elements of that crime, the government did not need the evidence flowing from Young's arrest in order to proceed with its prosecution. Id. Following the court's ruling, in order to preserve certain unrelated legal issues for appeal, the parties agreed to conduct a bench trial based on stipulated facts. Id. at 2, 4-9.

On June 20, 2006, following the bench trial, the court found Young guilty of illegal re-entry into the United States in violation of 8 U.S.C. §§ 1326(a),(b)(2). Gov't 56.1 Ex. F. On April 19, 2007, the court sentenced Young to 84 months in prison. Transcript of Hearing at 15, United States v. Young, No. 05-CR-846 (E.D.N.Y. June 12, 2006) ("April 19 Tr."). In deciding to give Young a sentence enhancement for obstruction of justice, the court found that Young "willfully made a series of . . . false and perjurious statements to influence the outcome of his case." Id. at 12. In particular, the court found that Young made several false statements during the June 8, 2006 evidentiary hearing that warranted a sentence enhancement. Id. at 12. Among those statements, the court cited Young's assertions that "law enforcement authorities illegally entered his apartment by breaking through a glass door and that authorities coerced him to sign a consent to search form which he was not given an opportunity to read and proceeded to search his home illegally." Id. The court found those statements to be "willful lies." Id. In this regard, the court fully credited Kilbride's contrary testimony with respect to Young's arrest. Id. at 13. The court noted that Young's false statements had no impact on its decision to suppress evidence flowing from the agents' arrest of Young in violation of Payton. Id. at 14.

II. The Civil Forfeiture Action

On November 8, 2005, the government filed a verified complaint in rem seeking civil forfeiture of Young's home and various property seized in and about the premises (collectively, the "defendant properties"). Dkt. No. 1. On November 16, 2005, the government amended its complaint to add additional information about the defendant properties. Amend. Compl., Dkt. No. 2. The defendant properties include: Real Property and Premises known as 90-23 201st Street, Hollis, New York (the "real property"); One 1999 Green Toyota Land Cruiser VIN # JT3HT05J1X0059990; One 1995 Grey Toyota Avalon VIN # 4T1GB11E4S0009963; One 1998 Grey Mercedes Convertible VIN # WBDKK47F7WF012199 (collectively, the "three vehicles"); One Men's Gold Bracelet; Four Men's Gold Rings (collectively, the "jewelry"); and Approximately Nine Thousand, Seven Hundred Dollars ($9,700.00) in U.S. Currency (the "cash.")*fn2 Gov't 56.1 ¶ 1. The amended complaint alleges that, under 21 U.S.C. § 881, the defendant properties are subject to forfeiture because they were "each used or intended to be used to facilitate the commission of narcotics trafficking . . . and/or were purchased, acquired, and maintained after December 1996 with proceeds of narcotics trafficking . . . ." Amend. Compl. ¶ 3.

On December 16, 2005, Young filed the only claim of interest in the defendant properties. Dkt. No. 7. Young alleges that he is the proprietary owner of and has a complete possessory interest in the defendant ...


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