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August 5, 1994


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

 We are considering the Government's motion for reconsideration of our Memorandum and Order of May 5, 1994. We exercise jurisdiction under 28 U.S.C. § 1331.

 I. Facts

 We recounted the facts in some detail in our earlier Memorandum and Order. Thus, we will recount them only briefly and refer to them in greater detail as needed during our analysis. See United States v. One Parcel of Property Located at Shelly's Riverside Heights, 851 F. Supp. 633, (M.D. Pa. 1994) (Caldwell, J.). This case revolves around a 10-acre tract of land in Mifflin County, Pennsylvania, on which sits a cabin. The property is owned in joint tenancy by claimant Tab Deaner and his girlfriend, Melissa Kurtz. *fn1" In the Winter and Spring of 1992, agents of the federal Drug Enforcement Administration began an investigation into possible marijuana cultivation at the cabin. The agents conducted surveillance, probed the property's trash, and flew over the property in an airplane equipped with a thermal-imaging device. Mr. Deaner and Ms. Kurtz were arrested in April, 1992. In August, 1992, Judge James McClure of this court accepted guilty pleas from both. Mr. Deaner plead guilty to manufacturing marijuana and was sentenced to 21 months in prison and no fine. Ms. Kurtz plead guilty to possessing marijuana and was sentenced to 12 months probation and assessed a $ 500 fine. In April, 1993, the Government filed a civil forfeiture action, seeking to take the entire property. Only Mr. Deaner filed a claim, but he failed to file an answer. The Government filed a motion for summary judgment and for default, which Mr. Deaner opposed. Mr. Deaner cited Austin v. United States, U.S. , 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993), in which the Supreme Court held that civil forfeiture actions are subject to a proportionality requirement under the Eighth Amendment. We directed the Government to address the Austin issue and it did so. Subsequently, Mr. Deaner moved for leave to file an answer nunc pro tunc. On May 5, 1994, we issued a Memorandum and Order denying the Government's motions, granting Mr. Deaner's motion for leave to file an answer, and granting summary judgment in favor of the property sua sponte. The Government has filed a motion for reconsideration.

 II. Law and Discussion

 We will address in turn the areas in which the Government claims our Memorandum and Order of May 5, 1994, was in error.

A. Granting Summary Judgment Sua Sponte

 In our order of July 8, 1994, we noted that the United States Court of Appeals for the Third Circuit had indicated in Otis Elevator Company v. George Washington Hotel Corporation, 27 F.3D 903 (3d Cir. 1994), that a district court must give notice to the parties before entering summary judgment sua sponte. Rather than vacate the judgment in this case, we afforded the Government an opportunity to supplement the record and file a brief opposing the sua sponte summary judgment. In this way, we have afforded the Government the notice and opportunity referred to by the Third Circuit in Otis Elevator and cured any procedural deficiency.

 The Government argues in its reconsideration motion that Mr. Deaner presented no affidavits or other record evidence. This argument is without merit. There are two ways in which a party can successfully oppose a motion for summary judgment: (1) by demonstrating that there remain material issues of fact precluding summary judgment, Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986), or (2) by agreeing that there are no material issues of fact yet showing that the application of the law on those facts warrants judgment for the summary judgment opponent. In the instant case, Mr. Deaner did not dispute the facts presented by the Government; rather, he argued that the law as applied to those facts does not warrant the result sought by the Government.

 B. Default

 The Government argues that we improperly failed to consider the effect of Ms. Kurtz's default. As noted, we concluded that her default had no real effect because the defendant in this case is the property itself; thus, a claimant serves largely to offer arguments on behalf of the property. As Mr. Deaner had properly argued that Austin applied and that this forfeiture would be excessive, the property was adequately defended.

 The Government cites United States v. Parcel of Real Property Known as 1500 Lincoln Avenue, 949 F.2d 73 (3d Cir. 1991), in support of its argument. In an important way, 1500 Lincoln Avenue does not further the Government's position. In that case, a husband and wife owned a parcel of property as tenants by the entirety. The husband was engaged in illegal drug transactions and the Government sought forfeiture of the husband and wife's home. The wife asserted an "innocent owner" defense, 21 U.S.C. § 881(a) (7), and the district court agreed with the wife and dismissed the complaint. The United States Court of Appeals for the Third Circuit reversed, holding that the "innocent owner" defense of one owner does not require dismissal of the entire complaint. Rather, the court held that the Government could be entitled to a forfeiture while the wife was entitled to "full and exclusive use and possession of the property during her life [and] protection against conveyance of or execution by third parties upon her husband's former interest, [and] her survivorship right." 949 F.2d at 78.

 For the purposes of the analysis of 1500 Lincoln Avenue, a tenency by the entirety is functionally the same as a joint tenancy such as that entered into by Mr. Deaner and Ms. Kurtz. See United States v. Jacobs, 306 U.S. 363, 370; 59 S. Ct. 551, 555; 83 L. Ed. 763 (1939); Coleman v. Jackson, 109 U.S. App. D.C. 242, 286 F.2d 98, 102 (D.C. Cir. 1960). Thus, if we were to follow the Government's application of 1500 Lincoln Avenue, assuming that the civil forfeiture is inappropriate as against Mr. Deaner's interest, we would still have to afford Mr. Deaner at least a life interest in the property. We do not understand the Government to seek that result.

 We find a more basic flaw in the Government's invocation of 1500 Lincoln Avenue. In an "innocent owner" case, the defense arises only after the court accepts that forfeiture is appropriate. Only then will the court consider the interest of an innocent owner. Here, we have determined that the property should not be forfeited in the first place. Put differently, the "innocent owner" defense focuses on the interests of an individual owner and seeks to protect them in certain circumstances. The Proportionality defense used here focuses on the property and the extent of its culpability ...

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