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UNITED STATES v. ONE PARCEL OF PROP.

May 5, 1994

UNITED STATES OF AMERICA, Plaintiff
v.
ONE PARCEL OF PROPERTY LOCATED AT SHELLY'S RIVERSIDE HEIGHTS LOT X, McVEYTOWN, MIFFLIN COUNTY PENNSYLVANIA, WITH ALL APPURTENANCES AND IMPROVEMENTS THEREON, Defendant



The opinion of the court was delivered by: WILLIAM W. CALDWELL

 Pending are the Government's motions for summary judgment and for default, dismissal of the claim, or discovery. We exercise jurisdiction according to 28 U.S.C. § 1331.

 I. Facts and Procedural History

 This civil forfeiture action arises from an investigation into marijuana cultivation in a log cabin on a parcel of land in McVeytown, Pennsylvania, owned by claimant Tab Deaner and by Melinda Kurtz.

 In January, 1992, agents of the federal Drug Enforcement Administration ("DEA") received intelligence reports that Mr. Deaner had purchased approximately 244 pounds of cultivation supplies from Wormsway Organic Indoor/Outdoor Garden Supply, a company the DEA suspected of supplying marijuana-growing equipment and supplies. See Affidavit of Special Agent Mark Andrasi. Agents observed the Deaner/Kurtz residence, and noted that the windows were covered and that one window, in particular, was covered by an opaque piece of plastic. Id. Based on their experience, the agents understood that marijuana growers often cover windows in order to keep heat in the growing areas and also, of course, to hide their activities. In January and March, 1992, agents examined the household trash of Mr. Deaner and Ms. Kurtz. They found stems and leaves of marijuana mixed with soil, some of it clearly fresh. Id. Agents also found plastic jugs cut in half, devices often used by marijuana growers to germinate plants. On March 31 and April 1, 1992, agents flew over the Deaner/Kurtz property with an airplane equipped with a thermal-imaging device. They detected large amounts of heat emanating from the residence, a finding consistent with marijuana cultivation, which requires large lights. Id.

 Agents arrested Mr. Deaner and Ms. Kurtz on April 3, 1992, and charged both with conspiracy to manufacture, distribute, and possess marijuana and with the substantive offense of manufacturing marijuana with intent to possess and distribute it. An indictment followed on April 14, 1994, and both eventually plead guilty. On August 3, 1992, Judge James McClure of this court accepted Mr. Deaner's conditional plea to Count II of the indictment, which charged him with manufacturing marijuana. Judge McClure accepted Ms. Kurtz's guilty plea to part of Count III of the indictment, specifically the portion charging her with possession of marijuana. At the time of his guilty plea, Mr. Deaner acknowledged that he had operated an indoor marijuana growing operation that included some 20 plants weighing approximately 23 kilograms.

 On November 2, 1992, Judge McClure sentenced Mr. Deaner to 21 months imprisonment, but waived any fine because of the defendant's inability to pay. Judge McClure sentenced Ms. Kurtz to 12 months probation and a $ 500 fine. *fn1"

 On April 22, 1993, the Government filed a verified complaint under 21 U.S.C. § 881(a) (6) and (7) to seize the parcel of land on which the Deaner/Kurtz cabin sits. The Government gave notice to Mr. Deaner and Ms. Kurtz and, on May 27, 1993, Mr. Deaner made a claim on the property. His claim explains that he and Ms. Kurtz purchased the land on January 21, 1993, for $ 7,950. *fn2" Mr. Deaner failed to timely file an answer as required by Rule C(6) of the Supplemental Rules for Certain Admiralty and Maritime Claims (hereafter "Supp. Adm. Rules").

 On April 27, 1993, on motion of the Government, we found probable cause and ordered the United States Marshal to seize the property. Mr. Deaner made a motion for court-appointed counsel on June 22, 1993, and we denied the motion on September 27, 1993. The Government filed the current motion for summary judgment and accompanying brief on December 2, 1993. On December 20, 1993, Mr. Deaner filed a short opposition brief, referring to the recent decision of the Supreme Court of the United States in Austin v. United States, U.S , 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993). In Austin, the Court held that civil forfeiture actions under 21 U.S.C.§ 881(a)(7) are subject to an Eighth Amendment excessive fines analysis. By order of January 27, 1994, we required the Government to file a brief addressing the possible application of Austin to this case. On February 22, 1994, the Government filed a motion for default, to dismiss Mr. Deaner's claim, and for discovery. The accompanying brief discusses the Austin issue and we take it as a response to our order. *fn3"

 II. Law and Discussion

 A. The Government's Motion for Default

 As noted, both Mr. Deaner and Ms. Kurtz purchased the ten-acre property in question. See Exh. A to the Verified Complaint.

 Civil forfeitures under 21 U.S.C. § 881 are actions in rem, "which shall conform as near as may be to proceedings in admiralty." 28 U.S.C. § 2461(b); Republic National Bank of Miami v. United States, U.S. ; 113 S. Ct. 554, 557; 121 L. Ed. 2d 474 (1992). Thus, we apply the Supplemental Rules for Certain Admiralty and Maritime Claims. See United States v. $ 288.914 in United States Currency, 722 F. Supp. 267, 270 (E.D. La. 1989).

 A civil forfeiture action brought under 21 U.S.C. § 881 involves a legal fiction; namely, that the property is guilty of some offense. See Austin, supra; United States v. $ 83,900.00 in United States Currency, 774 F. Supp. 1305, 1319-20 (D. Kan. 1991); see generally, Jack Yoskowitz, The War on the Poor: Civil Forfeiture of Public Housing, 25 Colum. J.L. & Soc. Probs. 567 (1992); Lawrence A. Kasten, Note, Extending Constitutional Protection to Civil Forfeitures That Exceed Rough Remedial Compensation, 60 Geo. Wash. L. Rev. 194 n.143 (1991). The defendant in such a case is the property itself, thus creating the peculiar captions that pit the United States against "$ 22,287 in United States Currency" or "One 1993 Toyota Camry." Id. Because the property, of course, is unable to defend itself, the owner or other party with an interest in the property is allowed to intervene as a claimant, as Mr. Deaner has done here. Id. Rule C(6), Supp. Adm. Rules, requires that

 
the claimant of property that is the subject of an action in rem shall file a claim within 10 days after process has been executed, or within such additional time as may be allowed by the court, and shall serve an ...

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