Opinion
No. 4:95CV142-P-B
July 18, 2000
MEMORANDUM OPINION
This day this cause is before the Court on plaintiff's motion for summary judgment [21-1]. The facts of the case are as follows:
FACTUAL BACKGROUND
On August 27, 1993, Carl Kirkland and others were indicted by the Federal Grand Jury in the Northern District of Mississippi for violations of Title 21 of the United States Code (cause number 2:93CR128). Additionally, an indictment against Kirkland from the Northern District of California was transferred to this district on December 2, 1993, for violations of Title 18 of the United States Code (cause number 3:93CR180). On January 11, 1994, a Plea Agreement between Kirkland and the United States was filed in both cases. Kirkland subsequently entered a guilty plea in this Court to count two of the indictment against him in cause number 2:93CR128 which charged conspiracy to distribute cocaine in violation of 21 U.S.C. § 841 and 846, and count one of the transferred indictment in cause number 3:93CR180, which charged possession of a firearm by a convicted felon. In his plea agreement, Kirkland agreed to give full and truthful statements to any United States agents regarding his knowledge as to violations of the law.
Following Kirkland's conviction, he was interviewed concerning his knowledge and involvement in the possession and distribution of cocaine from San Francisco, California, and the Northern District of Mississippi. He stated that he purchased cocaine on several occasions from Leroy Paul. Kirkland would subsequently sell the cocaine that he purchased. He further admitted that in June of 1993, he gave $19,500.00 (which he received from selling the narcotics) to Paul to purchase one kilogram of cocaine. Thereafter, he learned that the money had been seized by the police.
Additionally, the police seized Kirkland's motorcycle, which he had lent to Paul.
A verified complaint for forfeiture in rem was filed on May 15, 1995. The defendant property was arrested by the United States Marshal Service on June 5, 1995, pursuant to an order of the Court. Kirkland was served by personal service on July 7, 1995, and Paul was served by personal service on August 2, 1995. Constructive notice was given to any and all other potential claimants by publication of legal notice given in The Delta-Democrat Times of Greenville, Mississippi, a newspaper of general circulation in the Northern District of Mississippi. On July 18, 1995, Kirkland filed a verified claim in which he asserted that he was the exclusive owner of the defendant property. The United States has filed a motion for summary judgment, seeking judicial forfeiture of the defendant property pursuant to 21 U.S.C. § 881. Kirkland, as the claimant for the defendant property, has not filed a response to the motion for summary judgment.
LEGAL ANALYSIS
The United States Code provides:
The following shall be subject to forfeiture to the United States of America and no property right shall exist in them:
. . . .
(6) All moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance or listed chemical in violation of this subchapter, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this subchapter, except that no property shall be forfeited under this paragraph, to the extent of the 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.21 U.S.C. § 881 (a)(6).
The government bears the burden of establishing that probable cause existed to believe that the defendant property was intended to be furnished in exchange for a controlled substance, or that the defendant property is proceeds traceable to an exchange of controlled substances. Summary judgment is proper in this case if abundant evidence exists which in not contradicted. United States v. One 1978 Chevrolet Impala, 614 F.2d 983 (5th Cir. 1980).
Once the government has demonstrated probable cause, the claimant then has the burden of proving by a preponderance of the evidence that the defendant property was not used to purchase a controlled substance nor was it proceeds from the exchange of a controlled substance. In addition, the claimant may show that he is an innocent owner of the defendant property. See United States v. Land, Property Currently Recorded In The Name Of Gerald Franklin Neff, etc., 960 F.2d 561 (5th Cir. 1992).
In the case presently before this Court, Kirkland, the claimant, has made no such showing. He has failed to respond in anyway to the government's motion for summary judgment. Furthermore, this Court cannot ignore the record and proceedings in cause number 2:93CR128 and 3:93CR180. See Ackerman v. United States, 178 F.2d 983 (5th Cir. 1949), aff'd 340 U.S. 193, 71 S.Ct. 209, 95 L.Ed. 207 (1950). In those proceedings, Kirkland admitted that he was involved in the purchasing and selling of a controlled substance.
According to the evidence before this Court, Kirkland was actively engaged in the sale and distribution of illegal narcotics. Furthermore, the defendant property was intended to be furnished in exchange for a controlled substance, and the money itself was proceeds traceable to the exchanges of controlled substances. Therefore, summary judgment should be granted in favor of the United States, and the defendant property should be ordered forfeited to the United States pursuant to 21 U.S.C. § 881 (a) (6).
An order will issue accordingly.