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U.S. v. One 107.9 Acre Parcel of Land Located in Warren Tp.

filed: March 20, 1990.

UNITED STATES OF AMERICA
v.
ONE 107.9 ACRE PARCEL OF LAND LOCATED IN WARREN TOWNSHIP, BRADFORD COUNTY, PENNA. AS DESCRIBED IN DEED BOOK 608, PAGE 792, RECORDER OF DEEDS OFFICE, BRADFORD COUNTY, PENNA., TOGETHER WITH ALL OF ITS IMPROVEMENTS, APPURTENANCES, BUILDINGS, STRUCTURES, FURNISHINGS, EQUIPMENT, FIXTURES, MERCHANDISE AND OTHER ITEMS. STEPHEN L. TIMCHACK AND JOSEPHINE TIMCHACK, CLAIMANTS, APPELLANTS



Appeal From the United States District Court for the Middle District of Pennsylvania, Civil No. 88-0102 -- Scranton.

Becker, Cowen, and Seitz, Circuit Judges.

Author: Seitz

Opinion OF THE COURT

SEITZ, Circuit Judge

This is an appeal from an order of the district court granting the government's motion for summary judgment in its "Complaint For Forfeiture In Rem" under 21 U.S.C. § 881(a)(7) (1988). Jurisdiction in the district court was based on 28 U.S.C. §§ 1345, 1355, 1356 (1982). We have jurisdiction under 28 U.S.C. § 1291 (1982).

The complaint sought the forfeiture of over 100 acres of contiguous land titled in the names of Stephen L. Timchack (Stephen) and Josephine Timchack (Josephine), his wife. The property was duly seized*fn1 and notice was given to the defendants as interested parties. The defendants filed an answer and asserted several defenses. Thereafter, the parties conducted discovery.

The undisputed discovery disclosed that at least some of the real property had been used for seven or more years to commit and to facilitate the commission of controlled substance violations by growing and storing marijuana thereon. Based on the record made by both sides, the district court granted the government's summary judgment motion and thus upheld the forfeiture of the entire property to the government. Defendants' appeal followed.

I

We note at the outset that defendants do not contend on appeal that the government failed to make the requisite probable cause showing with respect to the illegal use of at least some of the land. Such a contention by defendants would be frivolous on this record.

We address defendants' contentions in light of the controlling statutory provision.

Title 21 U.S.C. § 881(a)(7) provides:

(a) The following shall be subject to forfeiture to the United States and no property right shall exist in them:

(7) All real property, including any right, title, and interest in the whole of any lot or tract of land and any appurtenances or improvements, which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this subchapter punishable by more than one year's imprisonment, except that no property shall be forfeited under this paragraph, to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner.

Given this record, Stephen, understandably, does not suggest that he made a showing that entitled him to a trial under the no-knowledge or the no-consent provisions of the statute. Josephine, however, does contend that it was error for the district court to construe 21 U.S.C. § 881(a)(7) to permit forfeiture of her ownership interest without trial in view of her assertion that while she knew of the illegal use she did not consent to the use of the land for illegal purposes.

The government responds that the issue of lack of consent was never raised as a defense in Josephine's answer and therefore should not be considered on appeal. It is true that Josephine did not assert a lack of consent defense in her answer. However, she did advance the defense of lack of consent in her papers resisting summary judgment. But, more to the point, this defense was explicitly decided against her by the district court in its opinion. We are therefore satisfied that the issue is properly before us.

The district court, relying on United States v. 124 E. North Ave., 651 F. Supp. 1350, 1357 (N.D.Ill. 1987), construed § 881(a)(7) to require a claimant to prove both lack of knowledge and lack of consent to prevail on an innocent owner defense. Since Josephine admitted that she had knowledge, the district court rejected her lack of consent contention. At the time it made its ruling, the district court did not have the benefit of our contrary construction of that section of the statute in United States v. Parcel of Real Property Known as 6109 Grubb Road, 886 F.2d 618 (3d Cir. 1989). We held there that a party in interest could successfully assert an innocent owner defense by proving either lack of knowledge or lack of consent.

Since the district court misinterpreted the statute in light of our controlling construction of § 881(a)(7), we would ordinarily remand for a consideration of the consent issue. However, since this appeal arises from a grant of summary judgment for the government and is subject to plenary review, we will exercise our discretion to determine whether that judgment was nevertheless dictated by the record made in the district court. Our analysis is guided by a recent Supreme Court decision illuminating the proper application of summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

In Zenith Radio the Supreme Court stated that to resist successfully a summary judgment motion, the opposing party must come forward with specific facts showing that there is a genuine factual issue for trial. Where the full record, taken together, could not lead a rational trier of fact to find for the non-moving party, no genuine issue exists for trial. The test is also stated in terms of whether the non-moving party could, on the record, successfully resist a motion for a directed verdict. Anderson v. Liberty Lobby Inc., 477 U.S. ...


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