948 F2d 1283

948 F.2d 1283

UNITED STATES of America, Plaintiff-Appellee,
v.
Ronald Eugene WASHINGTON; Ronzell K. Washington, Claimants-Appellants,
All of the Real Property with all Buildings, Appurtenances
and Improvements Thereon Commonly Known as 3016,
Sunset Lane, Suitland, Maryland 20746, Defendant.

No. 90-6835.

United States Court of Appeals, Fourth Circuit.

Argued Feb. 7, 1991.
Decided Dec. 4, 1991.
As Amended Dec. 9, 1991.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Frank A. Kaufman, Senior District Judge. (CA-87-3178-K)

Argued: Browne Lee Kooken, Upper Marlboro, Md., for Appellants; Jan Paul Miller, Assistant United States Attorney, Baltimore, Md., for appellee.

On Brief: Alphonso Pendergrass, Washington, D.C., for appellants; Breckinridge L. Wilcox, United States Attorney, Baltimore, Md., for appellee.

D.Md.

AFFIRMED.

Before WIDENER and K.K. HALL, Circuit Judges, and BUTZNER, Senior Circuit Judge.

OPINION

PER CURIAM:

1

In this civil forfeiture proceeding brought pursuant to 21 U.S.C. § 881(a)(7), Ronald Eugene Washington and Ronzell K. Washington appeal from a district court order granting summary judgment in favor of the United States. We find their assignments of error to be without merit and therefore affirm.

2

On March 15, 1987, an examiner with the United States Customs Service intercepted an express mail package. The package had been sent from Nigeria and was addressed to Ajoke Olushola at the defendant property, 3016 Sunset Lane, Suitland, Maryland. When the package was opened, it was found to contain a brown powdery substance that field-tested positive for the presence of an opiate. The package and its contents were turned over to the Drug Enforcement Administration for further testing, which determined that the substance was 125.79 grams of 9.2% pure heroin.

3

On March 23, 1987, agents of the Drug Enforcement Administration conducted a controlled delivery of the package to 3016 Sunset Lane. Tijuana Reese, a resident of the premises, accepted delivery. Agents then entered the premises under a search warrant obtained earlier that day. In the course of this search, the package was recovered from the dining room table. Agents also discovered on the premises a loaded revolver, several beepers, a package of rubber gloves, debt tally sheets, a plastic bag containing heroin residue, and $21,615 in cash. Ronald Washington was present during this controlled delivery and was placed under arrest. On the basis on this incident, Ronald Washington was subsequently convicted of several violations of the Controlled Substances Act, 21 U.S.C. §§ 801-904, including conspiracy to distribute and possess with intent to distribute in excess of 100 grams of heroin, possession with intent to distribute in excess of 100 grams of heroin, conspiracy to import in excess of 100 grams of heroin, and importation of in excess of 100 grams of heroin. Washington was sentenced to a twenty-five year term of imprisonment. On November 24, 1987, the United States instituted this forfeiture action, alleging that the defendant property had been used to facilitate the commission of a violation of 21 U.S.C. punishable by more than one year's imprisonment. See 21 U.S.C. § 881(a)(7). In response, claims on the property were filed by Ronald Washington and his daughter, Ronzell Washington.1 The United States filed a motion for summary judgment against both claimants. The district court held a hearing on the motion on March 27, 1990 and granted summary judgment ordering forfeiture of the property.

4

The Washingtons raise two issues on appeal. They first contend that the district court erred by ordering forfeiture when there had been only a single drug transaction involving the defendant property. They argue that the single occasion on which the property was involved, namely the March 23, 1987 controlled delivery, does not establish "a substantial connection between the property and the underlying criminal activity." United States v. Santoro, 866 F.2d 1538, 1542 (4th Cir.1989).

5

The appellants are correct in their assertion that a single drug transaction is involved in this case; the United States concedes that it seeks forfeiture solely on the basis of the importation and delivery of 125.79 grams of heroin to the defendant property on March 23, 1987. Our prior decisions, however, have rejected the appellants' argument that a single use of property may not, as a matter of law, provide the requisite "substantial connection." E.g., United States v. 7715 Betsy Bruce Lane, Summerfield, N.C., 906 F.2d 110, 113 (4th Cir.1990). We have noted that the language of § 881(a)(7) conditions forfeiture on "a violation of this title" (emphasis added), and concluded that Congress has thus "determined that a single felony drug conviction is all that is necessary to trigger 21 U.S.C. § 881(a)(7)." Santoro, 866 F.2d at 1542. In addition, we have stated that there is "no requirement of a continuing drug business or ongoing operation." United States v. Schifferli, 895 F.2d 987, 991 (4th Cir.1990) (quoting United States v. Premises Known as 3629-2nd St., N.E. Minneapolis, Minnesota, 869 F.2d 1093, 1096 (8th Cir.1989). The Washingtons' suggestion that this rule should be modified because a home is the property at issue is similarly unavailing. As we stated in Santoro, "we cannot sanction a rule that gives favored protection to drug dealers who choose to deal directly from their homes." 866 F.2d at 1542. We are foreclosed from granting special treatment in cases involving homes by "Congress' unequivocal intent to allow forfeiture of all kinds of real property in order to strip drug dealers of their economic power." Schifferli, 895 F.2d at 990 (emphasis added).

6

Similarly, we are of opinion that the district court did not err in finding a "substantial connection" on the facts of this case. Under § 881(a)(7), property must have more than an "incidental or fortuitous" connection to criminal activity, but need not be "integral, essential or indispensable." Schifferli, 895 F.2d at 990. The property need only "make the prohibited conduct 'less difficult or more or less free from obstruction or hindrance.' " Schifferli, 895 F.2d at 990 (quoting 3639-2nd St., 869 F.2d at 1096). In reaching its decision the district court noted that the underlying criminal activity in the case was the importation, conspiracy to distribute, and possession with intent to distribute of the 125.79 grams of heroin, activity for which Ronald Washington was convicted. The district court found that this heroin had been deliberately addressed and mailed to the defendant property, had been accepted and taken into the premises, and had been located on the premises when seized by the authorities. Reviewing these facts de novo, see 7715 Betsy Bruce Lane, 906 F.2d at 112, we agree with the district court that a substantial connection has been established between the property and the criminal activity. By serving as a deliberate destination for the package containing the heroin, the property made the importation of the drug from Nigeria less difficult. In addition, the property provided a private home where the heroin could be received and stored out of public view. Had it not been for the interception of the package by customs officials, the use of the property would have rendered the illegal activity more or less free from obstruction or hindrance.2 This connection was not fortuitous or incidental. We therefore are of opinion that the United States has demonstrated the required connection between the property and the violation of title 21 of the United States Code, and thereby shown probable cause to believe that the property is subject to forfeiture.

7

The second issue raised by the appellants concerns whether the district court properly granted summary judgment. Appellants argue that summary judgment should not have been granted because Ronald Washington had submitted an affidavit raising certain factual disputes. Specifically, Washington stated that the rubber gloves and beepers seized from the property did not belong to him, that the seized cash constituted lottery winnings, and that the debt tally sheets were records of his gambling debts. As to the plastic bag containing heroin residue, he stated that he had not known of it until five months after his indictment and had never been charged with a criminal violation regarding that particular heroin.

8

Under Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986), "the mere existence of some alleged 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." Assuming, without deciding, that the affidavit of Ronald Washington raises genuine issues of fact, we nevertheless believe that these issues are not material. In discussing materiality, the Supreme Court has indicated that only factual disputes that might affect the outcome of a case should preclude entry of summary judgment; "[f]actual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248. In this case, the facts which the appellants argue are in dispute were not necessary to the district court's judgment. The district court specifically indicated that its order of forfeiture did not rely on the items, other than the heroin, found during the search of the defendant property. The court stated:

9

But in this case the controlled delivery was made and accepted on the premises. The heroin was found immediately right after the controlled delivery on the property. I think that's all that is clearly necessary to establish probable cause.

10

....

11

Importation of heroin to the premises--The existence of a conspiracy to distribute the drug, Washington's intent to distribute it from the property--If you just take all that alone and forget everything else--those conclusively demonstrate that the property was used to facilitate the drug trans--, the illicit, one or more, illicit drug transactions. So the Santoro test is clearly met.

12

While the district court did indeed also conclude that Washington's affidavit had not offered sufficient facts to raise a genuine issue of fact, it entertained this question arguendo, discussing it in terms of a hypothetical "case in which what I've just said was not so true...." We therefore conclude that the factual disputes which the appellants argue were raised by Ronald Washington's affidavit were not material.

13

Because the government has shown probable cause to believe that the defendant property is subject to forfeiture and the claimants have not proven that the property was not unlawfully used,3 we conclude that the district court properly granted summary judgment. See 7715 Betsy Bruce Lane, 906 F.2d at 111. Accordingly, the judgment of the district court is

14

AFFIRMED.

1

The district court found that the defendant property had been owned by Ronald Washington on March 23, 1987, the date of the controlled delivery and search. Thereafter, on June 10, 1987, Ronald Washington transferred the property to Ronzell Washington. Several months later, Ronzell Washington attempted to transfer to property back to Ronald Washington, but was informed that the deed could not be recorded because back taxes on the property had not been paid. The district court considered at length the standing of the two claimants, but ultimately decided to "pass" the standing issue because of its appropriate conclusion that one or the other of the claimants had standing

2

We have previously recognized that probable cause for forfeiture is established if the government shows that the defendant property "was used or was intended to be used to facilitate a crime, ..." 7715 Betsy Bruce Lane, 906 F.2d at 112; see also Schifferli, 895 F.2d at 990 ("[I]t is irrelevant whether the property is even used at all in the commission of a crime, so long as it is intended to be used.")

3

We note that the claimants have not attempted before us to assert an innocent owner defense under 21 U.S.C. § 881(a)(7)