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UNITED STATES v. 717 SOUTH WOODARD ST.

October 5, 1992

UNITED STATES OF AMERICA, Plaintiff,
v.
PREMISES KNOWN AS 717 SOUTH WOODARD STREET, ALLENTOWN, PENNSYLVANIA A PARCEL OF REAL PROPERTY AND ALL IMPROVEMENTS THEREON AND ALL APPURTENANCES THERETO, LYING IN THE COUNTY OF LEHIGH AND COMMONWEALTH OF PENNSYLVANIA AND PREMISES KNOWN AS 245 AND 247 NORTH SECOND STREET, ALLENTOWN PENNSYLVANIA A PARCEL OF REAL PROPERTY AND ALL IMPROVEMENTS THEREON AND ALL APPURTENANCES THERETO, LYING IN THE COUNTY OF LEHIGH AND COMMONWEALTH OF PENNSYLVANIA AND PREMISES KNOWN AS 209-217 NORTH SECOND STREET, ALLENTOWN PENNSYLVANIA A PARCEL OF REAL PROPERTY AND ALL IMPROVEMENTS THEREON AND ALL APPURTENANCES THERETO, LYING IN THE COUNTY OF LEHIGH AND COMMONWEALTH OF PENNSYLVANIA AND ANY AND ALL PROCEEDS FROM THE SALE OF SAID PROPERTY, Defendants.



The opinion of the court was delivered by: FRANKLIN S. VAN ANTWERPEN

 VAN ANTWERPEN, J.

 OCTOBER 5, 1992

 This civil forfeiture action is brought by the plaintiff, United States of America, in rem under 21 U.S.C. § 881(a)(7) *fn1" against the following defendant real properties: premises known as 717 South Wooodard ("the 717 South Woodard property"), premises known as 245 and 247 North Second Street ("the Food Market property"), premises known as 209-211 and 213-217 North Second Street ("the Liederkranz property"). Two of the Claimants, Jaime Rivera and Wyrma Acevedo Rivera, have filed verified claims to all of the defendant properties. The third Claimant, Luis Rivera, has also filed a verified claim to all of the properties, but his Answer to the Government's Complaint reveals that he is only claiming an interest to the Liederkranz property. *fn2" Before the court is the Government's Motion for Summary Judgment on the grounds that there is probable cause to believe that the defendant properties are subject to forfeiture and that the Claimants do not meet the requirements under the innocent owner defense to have their alleged interests exempted. Wyrma Acevedo Rivera contends that she in an innocent owner of all the defendant properties and Luis Rivera contends that he is an innocent owner of the Liederkranz property.

 We informally granted Claimants' counsel a 14-day extension to file a response to the Government's Motion for Summary Judgment. Counsel then wrote to the court requesting an another extension which we responded to by a letter of June 3, 1992 that denied the additional extension and also warned counsel to file a timely response. When no timely response was filed, we granted the Government's Motion on June 30, 1992. On July 16, 1992, we granted Counsel's Motion for Reconsideration in the interests of justice. However, a review of the merits of this matter convinces us that we should have let our Order of June 30, 1992 stand. For the reasons stated below, the Government's Motion for Summary Judgment is granted.

 I. FACTUAL BACKGROUND

 The Government's Statement of Facts is undisputed, we summarize these facts as follows. From May through July of 1991, the 717 South Woodard property, the residence of Jaime and Wyrma Rivera, was used to store cocaine on numerous occasions. On July 31, 1991, three kilograms of cocaine were stored at the 717 South Woodard property while the final negotiations to consummate a sale of the cocaine were conducted by Jaime Rivera. Jaime Rivera specifically directed a courier to go the 717 South Woodard property and wait. He then had the buyer, Manuel De La Cruz, who is an individual familiar with the drug trafficking activities of Jaime Rivera, brought to the 717 South Woodard property to show De La Cruz the three kilograms of cocaine. Additionally on July 31, 1991, the three kilograms of cocaine were seized from the table in the kitchen/dining room by officers executing a court authorized search and seizure warrant. Drug paraphernalia, including an Ohaus triple beam scale, sandwich bags, measuring spoon, and zip lock bags were also seized inside the residence.

 From May through July of 1991, 245-247 North Second Street, which houses the El Nuevo Puerto Rican Food Market, was also used on numerous occasions to store cocaine. Further, the Food Market property was the site of both person-to-person meetings and telephone calls between Jaime Rivera, De La Cruz, and DEA Special Agent Frank Marrero to arrange at least three separate sales of cocaine.

 In June of 1991, Jaime Rivera used 209-211 and 213-217 North Second Street, the site of the Liederkranz property, to negotiate and consummate the sale of 125 grams of cocaine to De La Cruz. During negotiations on the Liederkranz property, Jaime Rivera bragged about his ability to handle weight quantities of cocaine and, in an effort to impress De La Cruz with the quality of his cocaine, showed him 500 grams of pure flake cocaine. Further, while taking De La Cruz on a tour of the Liederkranz property, Jaime Rivera specifically pointed out a secret area being constructed for the future storage of cocaine. Lastly, Jaime Rivera negotiated the sale of six kilograms of cocaine on the Liederkranz property with both De La Cruz and DEA Special Agent Marrero.

 Jaime Rivera was subsequently arrested pursuant to a Criminal Complaint. On November 22, 1991, a jury found Jaime Rivera guilty of committing drug offenses under 21 U.S.C. §§ 841(a)(1), 846, 860, and 18 U.S.C. § 2.

 The Government's Statement of the Facts also sets forth the following property interests of the Claimants. On September 27, 1979, Jaime Rivera and Wyrma Acevedo purchased the 717 South Woodard property. They are the record owners of the 717 South Woodard property. Jaime Rivera and Wyrma Acevedo were later married on July 5, 1986. On July 16, 1986, Jaime Rivera and his wife, Wyrma Acevedo Rivera, purchased the Food Market property. They are the record owners and hold the Food Market property as tenants by the entireties. On February 7, 1991, Jaime Rivera purchased the Liederkranz property. He is the sole record owner of the Liederkranz property.

 Aside from the undisputed facts, the Claimants have made the following additional factual assertions relevant to their innocent owner claims. Jaime Rivera and Wyrma Acevedo Rivera allege that they hold the 717 South Woodard property as tenants by the entireties. We accept this allegation as being true for purposes of this Motion. *fn3" From February through July of 1991, Wyrma Rivera operated and maintained a small grocery store at the Food Market Property, along with her husband. During the course of her husband's criminal conduct, Wyrma Rivera claims that she maintained the family residence at 717 South Woodard with the earnings that she received in the course of her employment. *fn4" Wyrma Rivera also asserts an ownership interest in the Liederkranz property by virtue of her marriage to Jaime Rivera at the time of its purchase.

 Luis Rivera also claims to be an equitable owner of the Liederkranz property. He alleges that he contributed $ 14,500.00 to the down payment in order to purchase the Liederkranz property and, thereafter, made monthly payments of $ 792.00 to the mortgage holder on an alternating basis with Jaime Rivera. It is alleged that by an agreement between Jaime Rivera and Luis Rivera, title to the property was taken solely in Jaime Rivera's name. We will also assume that these allegations are true for purposes of this Motion.

 Finally, both Wyrma Rivera and Luis Rivera have made a bare assertion that they neither knew, nor consented to any of the criminal acts that were committed on the subject premises.

 II. STANDARD OF REVIEW

 Summary Judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." *fn5" Fed. R. Civ. P. 56(c). The moving party bears the initial burden of identifying for the court those portions of the record that it believes demonstrate the absence of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). Where the non-moving party opposing summary judgment has the burden of proof at trial on an issue for which summary judgment is sought, such a party must then make a showing sufficient to establish the existence of the essential elements of her case in order to survive a summary judgment motion. Celotex Corp., 477 U.S. at 322-23, 106 S. Ct. at 2552. In making such a determination, the appropriate inquiry is whether there is a need for a trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). "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." United States v. One 107.9 Acre Parcel of Land Located in Warren Township, 898 F.2d 396, 398 (3d Cir. 1990) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 1355-56, 89 L. Ed. 2d 538 (1986)).

 In applying the standard for summary judgment, our analysis is guided by the following well established rules. All inferences must be drawn in favor of the non-moving party, United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962); Continental Ins. Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982), all doubts must be resolved against the moving party, Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985) (citations omitted), cert. denied, 474 U.S. 1010, 106 S. Ct. 537, 88 L. Ed. 2d 467 (1985), and all allegations of the non-moving party that conflict with those of the movant must be taken as true. Anderson, 477 U.S. at 255, 106 S. Ct. at 2513. However, "the mere existence of some allegedly factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. at 247-48, 106 S. Ct. at 2510. If the evidence is merely "colorable" or "not significantly probative", summary judgment may be granted. Id. at 249, 106 S. Ct. at 2511. A party resisting a summary judgment motion "cannot . . . rely merely upon bare assertions, conclusory allegations or suspicions." Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981); Fed. R. Civ. P. 56(e). A "'response must set forth specific facts showing that there is a genuine issue for trial.'" Gans, 762 F.2d at 341 (quoting Fed. R. Civ. P. 56(e)) (emphasis added).

 III. DISCUSSION

 The Government is seeking an order of forfeiture against the defendant properties under the authority of 21 U.S.C. § 881(a)(7), *fn6" which provides for an action in rem against real property used to facilitate drug activity. To establish its right to forfeiture, the Government bears the initial burden of demonstrating that there is probable cause to believe that the properties in question were used, or intended to be used to facilitate violations of the federal controlled substances statute. United States v. RD 1, Box 1, Thompsontown, Delaware Township, 952 F.2d 53, 56 (3d Cir. 1991) [hereinafter Thompsontown] (citing 19 U.S.C. § 1615); *fn7" United States v. Parcel of Real Property known as 6109 Grubb Road, 886 F.2d 618, 621 (3d Cir. 1989) [hereinafter 6109 Grubb Road] (citations omitted). A probable cause determination is made by examining whether the Government has relied upon information "'adequate and sufficiently reliable to warrant the belief by a reasonable person that' the properties [were] used to further the trafficking of illegal narcotics." 6109 Grubb Road, 886 F.2d at 621 (quoting United States v. One 56-Foot Motor Yacht Named Tahuna, 702 F.2d 1276, 1282 (9th Cir. 1983)). The Government must demonstrate that the properties facilitated illegal drug trafficking to establish the requisite nexus between the subject premises and the underlying crimes. Thompsontown, 952 F.2d at 56-57 (citation omitted).

 Once the Government demonstrates the existence of probable cause, the ultimate burden shifts to the Claimants to prove by a preponderance of the evidence either that the properties were not used to facilitate the trafficking of illegal narcotics, or that the illegal use was without the Claimants' knowledge or consent. Id. at 56; 6109 Grubb Road, 886 F.2d at 623 (citations omitted); see also 19 U.S.C. § 1615. These respective burdens apply both to trial and to summary judgment proceedings, because a summary judgment motion implicates the same evidentiary burden of proof that would apply at trial. See Anderson, 477 U.S. at 242 at 252-54, 106 S. Ct. 2505 at 2512-513, 91 L. Ed. 2d 202 ; United States v. Premises and Real Property at 4492 S. Livonia Rd., 889 F.2d 1258, 1267 (2d Cir. 1989). Accordingly, ...


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