Opinion
NO. CY-02-3042-WFN
October 31, 2002
ORDER
Pending before the Court are Plaintiff's Motion for Summary Judgment (Ct. Rec. 30) and Claimant Eulojia Almaguer's Motion to Dismiss (Ct. Rec. 6) and Motion for Summary Judgment (Ct. Rec. 38). Claimant Almaguer has filed her Motions and briefing pro se, and Assistant United States Attorney St. Clair Frederick Winiker, III, has filed briefing on behalf of Plaintiff. For the reasons discussed below, the Court denies Plaintiff's Motion for Summary Judgment, denies Claimant Eulojia Almaguer's Motion to Dismiss and denies Claimant Eulojia Almaguer's Motion for Summary Judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
On April 23, 2002, the United States filed a Complaint for Forfeiture in Rem against the real property at 71 Egan Road, Wapato, Washington (Ct. Rec. 1). The Government's Complaint alleges that probable cause exists to seize the property. Id. In support, the Complaint alleges that a confidential informant [CI] contacted the Wapato police department and informed officers that cocaine and other contraband were being sold by Ms. Consuelo A. Cantu, ("Chela"), from the residence at 71 Egan Road in Wapato, Washington. Over a five day period from March 13, 2002, to March 17, 2002, officers conducted four controlled buys from the residence at 71 Egan Road. All of the controlled buys were made by the CI who purchased a substance that later tested positive for cocaine. Three of the controlled buys were made from Ms. Cantu, and one was made from another person, Juan Lopez-Meza, ("Jose"). The four controlled buys netted 8.3 grams of cocaine: (1) 1.9 grams on March 13, 2002; (2) 1.8 grams on March 14, 2002; (3) 2.0 grams on March 15, 2002; and (4) 2.6 grams on March 17, 2002. Id.
A Wapato police officer conducted a traffic stop on Ms. Cantu on March 25, 2002, and she was taken into custody for driving with license suspended in the third degree. In custody, Ms. Cantu gave written statements indicating that she had been selling cocaine out of the residence located at 71 Egan Road for approximately two months. Id.
The Government's Complaint also alleges that the Defendant property was the subject of a civil forfeiture action in 1997 that was settled by Stipulation for Decree of Forfeiture. Id. In the Stipulation the parties agree that Claimant Eulojia Almaguer is the owner of the real property at 71 Egan Road and Claimant Almaguer agrees to pay $18,500 instead of forfeiting the property. Id. at Ex. A. The parties also stipulate to the entry of a decree of forfeiture of the property to the United States in any subsequent forfeiture action based upon drug trafficking activities occurring on the Defendant property. Id. In the Stipulation Claimant Almaguer also "acknowledges her responsibility as owner of the Defendant property to ensure that no drug trafficking activity occurs on the property." Id. She also agrees to waive her Eighth Amendment rights relating to any future forfeiture of the Defendant property to the United States. Id.
The Complaint then alleges that the Government has reason to believe the Defendant real property was used to commit and/or facilitate the commission of a violation of Title II of the Controlled Substances Act, 21 U.S.C. § 801, et seq. and is therefore subject to seizure and forfeiture to the United States pursuant to 21 U.S.C. § 881(a)(7). Id.
On May 13, 2002, Ms. Eulojia Almaguer filed a pro se Motion to Dismiss Notice of Complaint for Forfeiture and Complaint for Forfeiture In Rem (Ct. Rec. 6). In her Motion, Ms. Almaguer argues that the Defendant property is not subject to forfeiture for the following reasons:
• there were no criminal convictions;
• the property was turned into a rental;
• no drugs were found when the property was searched;
• the Government's probable cause for seizure was based on hearsay by a non-reliable informant; and,
• Ms. Almaguer had no knowledge of any drug dealings because she works long hours, is rarely home and she does not interfere with her tenants because she fears lawsuits.Id. On May 13, 2002, pro se Claimant Almaguer also filed a Motion for Extension of Time, asking the Court for a 90-day extension and for the Court not to dismiss the case, indicating that she was pro se due to lack of funds (Ct. Rec. 8).
On May 14, 2002, Catholic Credit Union filed a claim asserting that it had a first position secured interest in the Defendant property (Ct. Rec. 10). On May 17, 2002, Claimant Catholic Credit Union filed an Answer to the Complaint for Forfeiture In Rem (Ct. Rec. 13). On July 22, 2002, the Plaintiff and Claimant Catholic Credit Union filed an Expedited Settlement Agreement where the parties stipulate that any violations of law involving the Defendant property occurred without the knowledge and consent of Claimant Catholic Credit Union (Ct. Rec. 45). Plaintiff agreed, among other things, that upon any final order of forfeiture, Claimant Catholic Credit Union would be paid all unpaid principal due and owing Catholic Credit Union arising out of the deed of trust securing the promissory note between Catholic Credit Union and Ms. Eulojia Almaguer. Id.
On June 12, 2002, Plaintiff filed a Motion for Default as to Eulojia Almaguer, arguing that she has not pleaded, answered or otherwise defended her claim as required by law (Ct. Rec. 16). On June 13, 2002, this Court entered an Order construing pro se Claimant Almaguer's Motion for Extension of Time as a Motion to Extend Time in which to file the verified statement and answer to the Complaint as required pursuant to Rule C(6)(a) of the Supplemental Rules of Certain Admiralty and Maritime Claims and 18 U.S.C. § 983(a)(4) (Ct. Rec. 19). The Court granted Eulojia Almaguer's Motion to Extend Time. Id. The Court also denied the Government's Motion for Default as premature. Id.
On June 17, 2002, Ms. Almaguer filed an Answer and Jury Demand (Ct. Rec. 20). In her Answer pro se Claimant Ms. Almaguer denies the Government's allegation that probable cause existed to seize the property and asserts the following affirmative defenses: the lack of probable cause to seize property; and, that her interest in the property was not subject to forfeiture because she did not have knowledge of, nor consent to, nor was willfully blind to any of the acts or omissions which allegedly subjected the Defendant property to forfeiture. Id. She also requested a jury trial on the matter. Id. Further, she requested that her and her family members' personal property be released to them without costs of court. Id.
On June 17, 2002, pro se Claimant Eulojia Almaguer filed a Motion with the Court asking that the Court allow her son-in-law to handle all proceedings in the case and all matters that arise from the case (Ct. Rec. 25).
On July 5, 2002, the Government filed its Response to pro se Claimant Almaguer's Motion to Dismiss and simultaneously filed a Motion for Summary Judgment (Ct. Recs. 29 and 30). At the same time, the Government filed a Statement of Undisputed Material Facts where the Plaintiff recites, virtually verbatim, the facts that it alleged in its Complaint, but adds documentation purporting to establish that Eulojia Almaguer is the owner of the Defendant property (Ct. Rec. 31).
On July 8, 2002, the Plaintiff filed a Supplemental Response to pro se Claimant Eulojia Almaguer's Motion to Dismiss and a Memorandum in Support of Motion for Summary Judgment (Ct. Rec. 34). In its Supplemental Response, Plaintiff claims that it incorrectly cited the governing statute and then purports to set forth the correct statutory authority to support its Motion for Summary Judgment and response to Claimant's Motion to Dismiss. Id.
On July 10, 2002, pro se Claimant Eulojia Almaguer filed a Motion entitled "Motion for Reply on Summary Judgment to Dismiss" (Ct. Rec. 38). In her Motion, pro se Claimant Eulojia Almaguer moved the Court for summary judgment pursuant to Rule 801(c) of the Federal Rules of Evidence, arguing that all documents used by Plaintiff should not be allowed due to the rules of hearsay. Id. At the same time, the pro se Claimant filed a Motion entitled "Motion to Reply on United States Statement of Undisputed Facts." Ct. Rec. 39. In her Motion the pro se Claimant challenges the Plaintiff's case and undisputed facts, and submits additional documents. Id. Amongst the documents submitted are the affidavits of Ms. Consuelo Cantu and the pro se Claimant. Id. at Exhs. D F. In the affidavits both Ms. Cantu and the pro se Claimant state that the pro se Claimant had no knowledge of any of the alleged illegal activities. Id.
On July 11, 2002, this Court entered an Order denying Claimant Almaguer's Motion for Prayer to the Court requesting that her son-in-law be allowed to handle all matters that arise from this and other cases (Ct. Rec. 37) The Court denied the motion to the extent that such an order would purport to allow the unauthorized practice of law. Id.
On July 12, 2002, pro se Claimant Eulojia Almaguer filed a Motion to Reconsider the Court's previous Order denying her request for her son-in-law to handle matters (Ct. Rec. 42). In her Motion, the pro se Claimant alleges that she:
• has a second grade education;
• cannot read or write English or Spanish;
• cannot afford an attorney;
• was not offered a court-appointed attorney; and
• depends on her son-in-law to read and write all documents.Id.
On July 31, 2002, Plaintiff filed a Reply to Claimant's Motion for Summary Judgment, (Ct. Rec. 46), and a Supplemental Statement of Undisputed Material Facts, (Ct. Rec. 47), where Plaintiff claims that: (1) both Ms. Cantu and Eulojia Almaguer reside at 71 Egan Road, Wapato, Washington; (2) that Ms. Cantu is Eulojia Almaguer's daughter; and, (3) again recites the facts that Plaintiff alleges in its Complaint and in its First Statement of Undisputed Facts, almost verbatim. Id. However, the purported Statement of Undisputed Facts is now supported by a Declaration of Larry H. Ehrhardt who states he is a police officer with the Wapato Police Department. Id. The declaration adds that after speaking with Officer Ehrhardt, Ms. Cantu contacted her supplier "who arrived and was stopped en route to 71 Egan Road. He possessed approximately one-half pound of cocaine." Id. The Statement also adds that on March 25, 2002, pro se Claimant Eulojia Almaguer was waiting for the officer at the entrance of her daughter's portion of the home after her daughter's arrest and that the pro se Claimant pointed out homes she considered to be drug houses. Id. The Government also submitted a statement from the Wapato Police Department where Ms. Consuelo Cantu admits on March 25, 2002, "I've been dealing cocaine out of my residence for two months." Id. at Ex. A. Later in the same statement when asked if she dealt cocaine out of the residence at 71 Egan Road, Ms. Cantu responded, "I did a couple of times." Id.
On August 29, 2002, pro se Claimant Eulojia Almaguer filed a Reply to the Government's Statement of Undisputed Material Facts (Ct. Rec. 53) The pro se Claimant asserts that Ms. Consuelo Cantu resides at 71 Egan Road and she, Eulojia Almaguer, resides at 73 Egan Road. Id. The pro se Claimant admits that Consuelo Cantu is her daughter from her first marriage. Id. She also submitted a rental agreement between her as owner/landlord and Ms. Consuelo Cantu as a tenant. In the agreement, they agree that Eulojia Almaguer is renting 71 Egan Lane to Consuelo Cantu on a month-to-month basis. Id. The rental agreement also states that the tenant agrees not to engage in any illegal activities on the premises or allow others to engage in any illegal activities on the premises insofar as the tenant has the power to stop such activities. Id. The pro se Claimant also submitted a certificate of birth for someone but the Court's copy is unreadable. Id. She also submitted a search warrant for 71 Egan Lane, Wapato, Washington signed on March 18, 2002, by District Court Judge in Yakima County, Washington. Id.
II. DISCUSSION
A. APPOINTMENT OF COUNSEL FOR THE PRO SE CLAIMANT.In this case, appointing counsel is likely required by the Civil Asset Forfeiture Reform Act [CAFRA] and it would greatly assist the Court in sorting out the issues and better understanding the arguments of both sides. See 18 U.S.C. § 983(b). Congress was aware that there was no Sixth Amendment right to appointed counsel for indigents in civil forfeiture cases. Thus, Congress enacted a provision in CAFRA to address the problem of people having their property forfeited mainly because they were too poor to afford counsel. Id. Congress noted "this is undoubtedly one of the primary reasons why so many civil seizures are not challenged The reason they are so rarely challenged has nothing to do with the owner's guilt, and everything to do with the arduous path one must journey against a presumption of guilt, often without the benefit of counsel, and perhaps without any money left after the seizure with which to fight the battle." H.R. Rep. No. 106-192, at n. 55 (1999), 1999 WL 406892, at p. 14 (internal quotation and citation omitted).
Similarly, Congress demonstrated great concern over the civil forfeiture of peoples' homes. Congress, therefore, made the appointment of counsel mandatory when it involved an indigent person's primary residence.
See H.R. REP. 106-1048, 2001 WL 67919, at p. 60 (2001), "An especially high standard should have to be met before a person or family disposed of their home. A primary residence should be accorded far greater protection than mere personal property."; See also 18 U.S.C. § 983(a)(3); 18 U.S.C. § 983(d)(3)(B); and 18 U.S.C. § 985 et seq.
As compared with discretionary appointment of counsel in civil forfeiture cases not involving a primary residence. Compare 18 U.S.C. § 983(b)(2)(A), "the court, at the request of the person, shall insure the person is represented . . .", with 18 U.S.C. § 983(b)(1)(A), "the court may authorize counsel . . . .". (Emphasis added).
In order to be appointed counsel under CAFRA the claimant must (1) have standing to challenge the forfeiture, (2) be financially unable to obtain counsel, (3) primarily reside at the property subject to forfeiture, and (4) request counsel. 18 U.S.C. § 983(b)(2)(A). In this case the requirements for appointing counsel under CAFRA are likely met.
First, the pro se Claimant has standing to challenge the forfeiture as the legal owner of the Defendant property. See Baker v. United States, 722 F.2d 517, 518 (9th Cir. 1983); see also Ct. Rec. 29, p. 6 ("The Claimant's interest is not in dispute"). Second, the pro se Claimant has stated that she is acting pro se because she is financially unable to obtain an attorney (Ct. Rec. 42) ("Eulojia A. Almaguer, cannot afford an attorney [and] was never offered a court appointed attorney"). The Court will require the pro se Claimant to complete the necessary forms to ensure she financially qualifies for appointment of counsel, but it appears she likely qualifies.
Third, it appears that the Defendant property is the pro se Claimant's residence. The Government submitted a Declaration of an officer stating that the pro se Claimant resides at the Defendant property (Ct. Rec. 47) ("Eulojia A. Almaguer resides in her portion of the residence at 71 Egan Rd."). While the pro se Claimant is apparently denying that she resides at the address 71 Egan Road, she does claim that she resides at 73 Egan Road and that the place has been turned into a duplex (Ct. Rec. 53). Nonetheless, it appears that the forfeiture action is against the whole property, (Ct. Rec. 1), and the pro se Claimant primarily resides, at minimum, at a portion of the property. So the requirement of primarily residing at the property is also met. Certainly the Government could not, in good faith, oppose the argument that the claimant resides at the Defendant property after submitting a declaration of an officer stating that the claimant resides there (Ct. Rec. 47). It is also unlikely that the pro se Claimant would argue she did not reside at the Defendant property if she knew that the Court's finding that she did reside there would result in the appointment of counsel.
Finally, the pro se Claimant has stated that she has not been offered an attorney and that she is unable to afford an attorney (Ct. Rec. 42). The Court will liberally construe this as a request for counsel. See infra re: the liberal construction of pro se pleadings. In sum, the Court finds that the requisite elements under 18 U.S.C. § 983(b)(2)(A) for the appointment of counsel are likely met. The pro se Claimant is provided with this Order the appropriate financial papers to complete and submit to Magistrate Judge Suko to ensure she qualifies for appointment of counsel.
B. LIBERAL CONSTRUCTION OF THE PRO SE CLAIMANT'S PLEADINGS.
Claimant Ms. Eulojia Almaguer is acting pro se and thus the Court will liberally construe her pleadings. See e.g. Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) ("The Supreme Court has instructed the federal courts to liberally construe `inartful pleading' of pro se litigants."), citing Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam) ("it is settled law that the allegations of [a pro se litigant's complaint] however inartfully pleaded are held to less stringent standards than formal pleadings drafted by lawyers . . . ." (citation and internal quotation omitted); See also Noll, 809 F.2d at 1448 ("presumably unskilled in the law, the pro se litigant is far more prone to make an error in pleading than the person who benefits from representation of counsel"); Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) ("we hold [plaintiff's] pro se pleadings to a less stringent standard than formal pleadings prepared by lawyers.").
The pro se Claimant filed what she titled a Motion to Dismiss (Ct. Rec. 6) and what she titled a Motion for Summary Judgment (Ct. Rec. 38). A fair look at both of the motions reveals that the Court should liberally construe the pro se Claimant's Motion to Dismiss as both a Motion to Dismiss and a Motion for Summary Judgment. See Fed.R.Civ.P. 12(b)(6) ("If, on a motion asserting [dismissal under 12(b)(6)], matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."). Likewise, the Court shall construe her Motion for Summary Judgment as supporting part of her original Motion for Summary Judgment.
The Government should suffer no prejudice by the Court construing her pleadings this way. In the United States' Response to pro se Claimant Eulojia Almaguer's Motion to Dismiss and in the Alternative Memorandum for Summary Judgment, the Government acknowledges that "the Court could construe the Claimant's Motion as one for summary judgment under Federal Rule of Civil Procedure 56. Claimant nevertheless fails to controvert the material facts presented by the United States." (Ct. Rec. 29.) Thus, the Government has already addressed the pro se Claimant's argument this way and should suffer no prejudice.
C. THE PRO SE CLAIMANT'S MOTION TO DISMISS.
In pro se Claimant Eulojia Almaguer's Motion to Dismiss she does not state under which Rule of Civil Procedure which she is proceeding (Ct. Rec. 6). However, after examining her motion and the general nature of the allegations within the motion, the Court will. first construe it as a Motion to Dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
The Government also addressed the pro se Claimant's argument this way, stating "it would appear Claimant's motion is one brought pursuant to Fed.R.Civ.P. Rule 12(b)." Ct. Rec. 29, p. 3.
1. The 12(b)(6) Legal Framework.
In assessing a motion to dismiss under Rule 12(b)(6) the Court must "take as true all allegations of material fact stated in the complaint and construe them in the light most favorable to the nonmoving party." Newman v. Sathyavaglswaran, 287 F.3d 786, 788 (9th 2002). (Internal citation and quotation omitted). A grant of dismissal is appropriate only when it is "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Connelly v. Gibson, 355 U.S. 41, 45-46 (1957). "[A]lthough a motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted addresses itself to the claim itself, the movant merely is asserting that the pleading to which the motion is directed does not sufficiently state a claim for relief." 10A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice Procedure, § 2712 at 221 (3d ed. 1998) (hereinafter Wright Miller)
2. The Effect of the Civil Asset Forfeiture Reform Act on the Court's Analysis of a 12(b)(6) Motion.
The Court notes that the usual standard for a 12(b)(6) motion to dismiss may very well be complicated by Congress's recent enactment of the Civil Asset Forfeiture Reform Act [CAFRA]. See Pub.L. No. 106-185, 114 Stat. 202 (2000) (codified principally at 18 U.S.C. § 983). CAFRA raises the standard of proof the Government is required to meet from probable cause to preponderance of the evidence in order to obtain a civil forfeiture of property. 18 U.S.C. § 983(c). However, CAFRA may actually relax the standard governing a motion to dismiss, i.e., lower the standard the Government is required to meet in defending an action to dismiss. See 18 U.S.C. § 983(a)(3)(D) ("no complaint may be dismissed on the ground that the government did not have adequate evidence at the time the complaint was filed to establish forfeitability of the property."); see also United States v. 630 Ardmore Drive, City of Durham, Parkwood TP., Durham County, North Carolina, 178 F. Supp.2d 572, 580-81 (M.D. NC 2001). In this case, however, the Court need not decide the issue because the Government has not argued for a lesser standard under CAFRA.
3. Applying the 12(b)(6) Legal Framework to the Facts of this Case.
The Government filed a complaint for civil forfeiture against the Defendant property in which the Government alleges that the property was used to commit or facilitate a drug crime (Ct. Rec. 1). Under 21 U.S.C. § 881(a)(7), real property which is used or intended to be used in any manner or part to commit or to facilitate an enumerated federal drug crime punishable by more than one year's imprisonment is subject to civil forfeiture. The Government's Complaint alleges that on four separate occasions a confidential informant [CI] went to 71 Egan Road, Wapato, Washington and purchased cocaine from two different residents. Id. Accepting Plaintiff's allegations in its Complaint as true and drawing reasonable factual inferences in Plaintiff's favor as the Court is required to do on a 12(b)(6) motion to dismiss, the Court cannot say that it is beyond doubt that the Plaintiff could prove no set of facts in support of its claim which would entitle Plaintiff to relief. Thus, dismissal for failure to state a claim upon which relief can be granted would be inappropriate.
In Claimant's Motion to Dismiss (Ct. Rec. 6), Claimant sets forth the following arguments in support of the Motion to Dismiss, each of which is dealt with in turn:
A. There were no criminal convictions at the time Plaintiff filed its Complaint. This is irrelevant in an in rem civil forfeiture action as the Government need not obtain a conviction in order to secure forfeiture of the property. See 21 U.S.C. § 881(a)(7); See also 1 David B. Smith, Prosecution and Defense of Forfeiture Cases, § 1.03, at 1-33-34 (2002) ("Civil forfeitures also allow the government to impose economic sanctions on persons who are beyond the reach of the criminal law because there is insufficient evidence to obtain a conviction against them . . . A civil forfeiture suit can even be brought against property owned by a defendant who is acquitted in a prior criminal prosecution . . . Civil forfeitures are the only sanction available to penalize persons who make their property available for criminal endeavors by others but who are not sufficiently involved in the criminal scheme to be prosecuted.").
B. It [the Defendant property] was turned into a rental. This is also irrelevant in regards to Claimant's Motion to Dismiss. See, e.g., Sathyavaglswaran, 287 F.3d at 788 (9th 2002), stating that the Court must "take as true all allegations of material fact stated in the complaint and construe them in the light most favorable to the nonmoving party." See also Connelly v. Gibson, 355 U.S. 41, 45-46 (1957), stating that a grant of dismissal is appropriate only when it is "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Thus, even if the Defendant property was turned into a rental it would not effect the Court's ruling on a motion under 12(b)(6).
C. No drugs were found in a search of the house. The complaint alleges that four controlled buys netted 8.3 grams of cocaine over a five day period (Ct. Rec. 1). The pro se Claimant asserts that subsequent search of the house turned up no drugs, but this does not controvert or otherwise undermine the allegations of the complaint which the Court is bound to take as true.
D. The Defendant house has two addresses and has been a rental since 1999. For the same reasons stated supra, the Court finds that this is irrelevant regarding Claimant's Motion to Dismiss.
E. That probable cause for seizure was based on hearsay of a non-reliable confidential informant and the officers' failure to follow proper investigatory techniques. This is irrelevant as far as the Motion to Dismiss is concerned, but relevant to Claimant's Motion for Summary Judgment, which is discussed below.
F. Claimant argues that she is an innocent owner. For the same reasons stated supra this is irrelevant as far as the Motion to Dismiss is concerned, but highly relevant to Claimant's Motion for Summary Judgment, which is discussed below.
Having considered all the relevant facts and law, assuming the allegations of the Complaint to be true, and drawing reasonable inferences in the Government's favor, the Court denies pro se Claimant's Motion to Dismiss. Claimant has not shown that there are no set of facts in support of Plaintiff's claim that would entitle the Plaintiff to relief.
D. THE PRO SE CLAIMANT'S MOTION FOR SUMMARY JUDGMENT
Claimant filed a Motion for Summary Judgment July 10, 2002 (Ct. Rec. 38). Also, as noted supra, the Court will construe part of Claimant's Motion to Dismiss (Ct. Rec. 1), as a Motion for Summary Judgment.
1. The Summary Judgment Legal Framework.
The Court will grant summary judgment where the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The party seeking summary judgment must show that no genuine issue of material fact exists and that the Court should grant judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.s. 317, 323 (1986). "A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the parties' differing versions of the truth." S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982). The Court must construe all facts and all justifiable inferences in favor of the non-moving party. Anderson, 477 U.S. at 255.
The party opposing summary judgment must go beyond the pleadings to designate specific facts establishing a genuine issue for trial. Celotex, 477 U.S. at 324; Marks v. United States, 578 F.2d 261, 263 (9th Cir. 1978). The non-moving party may use affidavits, depositions, answers to interrogatories, and admissions to do this. Celotex, 477 U.S. at 323-24. The Court must enter summary judgment against a party who fails to make a showing sufficient to establish an essential element of a claim, even if genuine factual disputes exist regarding other elements of the claim. Id. at 322-23. No issue for trial exists unless sufficient evidence favors the non-moving party for a jury to return a verdict for that party. Anderson, 477 U.S. at 249. Thus, a scintilla of evidence in support of the non-moving party's position will not suffice. Id. at 252.
At the summary judgment stage, the Court's function is not to weigh the evidence, judge credibility, or in any way determine the truth of the matter, but only to determine whether there is a genuine issue for trial. Id. at 249. Essentially the inquiry is "whether the evidence presents a sufficient disagreement to require submission to [a fact finder] or whether it is so one sided that one party must prevail as a matter of law." Id. at 252. The general rules governing summary judgment apply in civil forfeiture cases. United States v. Certain Real Property, 566 Hendrickson Blvd., 986 F.2d 990, 995 (6th Cir. 1993).
2. Applying the Summary Judgment Legal Framework to the Facts of this Case.
Claimant's arguments in favor of summary judgment are apparently twofold. First, she argues that she is an innocent owner. Second, she argues that the Government has not offered sufficient admissible evidence to withstand a motion for summary judgment in claimant's favor. Each argument is addressed in turn.
(a) Is the Pro Se Claimant an Innocent Owner?
In order to prevail under the innocent owner defense, the Claimant bears the burden to prove by a preponderance of the evidence that she either "did not know of the conduct giving rise to the forfeiture, or upon learning of the conduct giving rise to the forfeiture, did all that reasonably could be expected under the circumstances to terminate such use of the property." 18 U.S.C. § 983(d)(1), (2)(A)(i) and (ii). Here, the pro se Claimant seeks to prevail, first, on the theory that she had no knowledge.
(i) Has the Pro Se Claimant Proven as a Matter of Law that she had no Knowledge of the Allegedly Illegal Activities and thus is an Innocent Owner?
Pro se Claimant argues that she rented the property and as a landlord she had no knowledge of any of the alleged illegal activity. See Affidavit of Eulojia Almaguer, (Ct. Rec. 39, Ex. F.), ("I had to turn my house into a duplex to make ends meet . . . I had no knowledge of any type of activities going on . . ."). Additionally, the pro se Claimant offers the affidavit of Consuelo A. Cantu (Flores), the person allegedly involved in the illegal transactions at the Defendant property that form the basis of the allegations of this civil forfeiture action (Ct. Rec. 39, Ex. D). In the affidavit Ms. Cantu states, "Eulojia A. Almaguer, my landlady knew nothing of what was going on, on her property . . . ." Id.
The pro se Claimant also submitted a copy of a rental agreement between herself and Consuelo Cantu for the Defendant property (Ct. Rec. 53). The rental agreement states that the tenant agrees not to conduct any illegal activities on the rental property. Id. The pro se Claimant also asserts that as a landlord she does not interfere with her tenants out of fear of lawsuits (Ct. Rec. 6). She further states that she works long hours and is rarely home. Id.
The Rental Agreement is hearsay and thus subject to the same problems discussed infra regarding the Government's motion for summary judgment. However, given that (1) the claimant is pro se, (2) the Rental Agreement likely falls within one of the exceptions to the hearsay rule, e.g. Federal Rule of Evidence 803(6), Records of Regularly Conducted Activity, and (3) the Court's ultimate conclusion that summary judgment is inappropriate, there is no harm in the Court considering the Rental Agreement in conjunction with the claimant's motion.
What has the Government offered to demonstrate the pro se Claimant had knowledge of the alleged illegal activities? Notably, a look at all of the Government's allegations regarding the Defendant property and the illegal use of the property shows that none of the allegations explicitly or implicitly say that pro se Claimant Eulojia Almaguer had any direct involvement with any of the alleged illegal activities. In the Government's Reply to Claimant's Response to Plaintiff's Motion to Summary Judgment, the Government argues that the pro se Claimant's knowledge of the illegal activities is clear because (1) the Stipulation for Decree of Forfeiture entered in 1998, (2) the pro se Claimant was waiting at the daughter's portion of the home after her daughter's arrest on March 25, 2002, and (3) at that same time the pro se Claimant pointed out what she considered to be drug houses in the neighborhood to a police officer (Ct. Rec. 46).
The Court will first examine the Stipulation from 1998. A critical look shows that the Stipulation does not establish, in any way, that the pro se Claimant had knowledge of the allegedly illegal activities that took place in March of 2002 and gave rise to the current forfeiture action.
See Ct. Rec. 1. Note, the Stipulation may be hearsay and thus may not be appropriate for the Court to consider at summary judgment, see infra. It does not appear that the Government offered an explanation as to how the Stipulation would be admissible evidence. Nonetheless, the Stipulation may very be admissible under Federal Rule of Evidence 801(d)(2), Admission of a Party Opponent, and thus the Court will save time by dealing with it now.
As a preliminary matter it should be noted that the Government has not been crystal clear in explaining exactly for what purpose it is using the Stipulation for Decree of Forfeiture. For example, in its Complaint the Government does not appear to be asserting that the Stipulation is enforceable and that the property is forfeitable because of the Stipulation (Ct. Rec. 1, at p. 4), ("by reason of the foregoing [the defendant property is] subject to seizure and forfeiture to the United States pursuant to 21 U.S.C. § 881(a)(7)."). Later, in its Response to Eulojia Almaguer's Motion to Dismiss, and in the Alternative Memorandum in Support of Motion for Summary Judgment, the Government appears to clarify that the 1998 Stipulation shows that the Claimant is not entitled to the innocent owner defense (Ct. Rec. 29), ("claimant's [stipulation establishes] that Claimant has not met her burden to establish she is an `innocent owner'."). However, in the same pleading the Government states that "[b]ased on the Claimant's Stipulation Decree of Forfeiture, and the Claimant's admission of her breach of her affirmative duty as described in her Motion to Dismiss, an entry of Decree of Forfeiture is warranted." Id. Finally, in two subsequent filings the Government appears to have stuck with the idea that the Stipulation is submitted solely for the purpose of establishing that the pro se Claimant is not an innocent owner. See Ct. Rec. 34, p. 3; Ct. Rec. 46, p. 6. Therefore, it appears that the Court need not seriously address whether or not the Stipulation should be afforded any kind of res judicata effect because the Government failed to argue that it should.
Perhaps aware that it would be unsuccessful, the Government does not appear to be arguing that the Court should enforce the Stipulation Decree. See, e.g., Rein v. Pruvidian Fin. Corp., 270 F.3d 895, 899 (9th Cir. 2001) (noting that the elements for claim preclusion are (1) the parties are identical or in privity; (2) the judgment in the prior action was rendered by a court in competent jurisdiction; (3) there is a final judgment on the merits; and (4) the same claim or cause of action was involved in both suits.) (internal citation omitted). In Rein the court said that a reaffirmation agreement signed by the parties could not be afforded res judicata effect because it was "unaccompanied by a court order approving the agreement." Id. at 901. Likewise, in this case the Stipulation appears to be unaccompanied by any kind of court order approving the Stipulation and therefore it would not likely be afforded res judicata effect. For additional problems with the enforcement of the Stipulation Decree see also n. 7 of this Order.
Regarding whether the Stipulation shows that the pro se Claimant had knowledge, the Stipulation states that the Defendant property, 71 Egan Road, Wapato, Washington, was arrested and forfeitable to the United States pursuant to 21 U.S.C. § 881(a)(7) and that in lieu of forfeiture, Claimant Eulojia Almaguer will pay $18,500 to the United States (Ct. Rec. 1). The Stipulation also states that the Claimant:
acknowledges the responsibility as the owner of the Defendant property to ensure that no drug trafficking activity occurs on the property. Claimant Almaguer further stipulates to the entry of a decree of forfeiture of the Defendant real property to the United States in any subsequent forfeiture action based upon drug trafficking activities occurring on the Defendant property from this date forward. Claimant Almaguer hereby waives her Eighth Amendment rights relating to any future forfeiture action of the Defendant property to the United States.
Id. Note, there are also problems with the Stipulation Decree from a purely contractual standpoint. Any ambiguities should likely be construed against the drafter, Fort Vancouver Plywood Co. v. U.S., 747 F.2d 547, 553 (9th 1984), and in this case that means construing ambiguities against the Government. The Stipulation states that Claimant Almageur acknowledges her responsibility as a landowner to ensure that no drug trafficking activity occurs on her land. However, it is not clear what her responsibility as a landowner under the law truly is. The law has not gone as far as to say that landowner's have an absolute responsibility to ensure no drug trafficking occurs on their land. See e.g. 18 U.S.C. § 983(d)(1) ("An innocent owner's interest in property shall not be forfeited under any civil forfeiture statute."; see also H.R. Rep. 106-1048, 2001 WL 67919, at p. 60-61 (2001) ("The owner's obligations end there- -property owners should not have to assume the role of police officers in stopping crime.").
Also, the meaning of the Claimant's stipulation to a decree of forfeiture in any future action based on drug trafficking activities is far from clear. Is the Claimant agreeing to an entry of forfeiture based on the Government's filing of an action, the Government's proof of its case, or something all together different? The Stipulation simply does not say.
The Stipulation was signed by Thomas Rice, Assistant United States Attorney, Eulojia Almaguer, Claimant, and Richard Troberman, attorney for Claimant, on March 23, 1998. Id.
The Stipulation does not establish that the pro se Claimant had knowledge of the alleged illegal activities occurring in March of 2002. At most the Stipulation establishes the pro se Claimant had knowledge that prior to 1998 there were some illegal activities going on at the Defendant property. The Government also submitted the underlying Complaint that resulted in the 1998 Stipulation (Ct. Rec. 29, Ex. B) The Complaint from the earlier forfeiture action is supported by an affidavit of Allen B. Williams, a detective with the Zillah Police Department. Id. The detective states that in July of 1996 and February of 1997, two controlled buys were made at 71 Egan Road. Id. One of the controlled buys involved the purchase of cocaine from Louis Almaguer, Sr., and the other again involved Louis Almaguer, Sr. and someone by the name of LuLu Almaguer. Id.
Considering all of this evidence in a light most favorable to the Government, it establishes that one time in 1996 Mr. Almaguer, Sr. dealt cocaine from 71 Egan Road and then one time in February of 1997, he arranged for the sale of cocaine and that someone else named LuLu Almaguer dealt cocaine from 71 Egan Road. These two controlled buys involving a confidential informant occurred over five years ago and involved Louis Almaguer, Sr., and someone named LuLu Almaguer. The Government has not alleged that either of these people were in any way involved in the instant action. See Ct. Rec. 1. Thus, this is likely insufficient to establish that the pro se Claimant Eulojia Almaguer, over five years later, had notice that her daughter, Ms. Cantu, allegedly dealt cocaine at the Defendant property. Thus, if the Stipulation was all that the Government was offering then the pro se Claimant likely would be entitled to summary judgment.
However, the Government has offered additional evidence to establish the pro se Claimant's knowledge. The Government's second piece of evidence showing that the pro se Claimant had knowledge is that the pro se Claimant was waiting at her daughter's portion of the home after her daughter's arrest on March 25, 2002 (Ct. Rec. 46). The officer's declaration that the Government submitted to establish this fact states that on March 25, 2002, after Ms. Cantu was arrested, the officer proceeded to "71 Egan Rd. to execute a search warrant of the residence. Cantu's mother, Eulojia Almaguer, was standing in front of Cantu's entrance to the residence." (Ct. Rec. 47.) Even construing this fact in a light most favorable to the Government it is difficult to see how the act of standing in front of Ms. Cantu's entrance to the residence establishes that the pro se Claimant had knowledge of the alleged illegal activities of the previous five days. Moreover, the Government does not come out and specify how it establishes knowledge (Ct. Rec. 46). If this were all the Government were offering to show the pro se Claimant had knowledge it to would probably be insufficient to avoid summary judgment.
However, the Government is also arguing that a third piece of evidence establishes the pro se Claimant's knowledge. The Government argues that the pro se Claimant pointed out what she considered to be drug houses in the neighborhood to a police officer on March 25, 2002 (Ct. Rec. 46). How this establishes the pro se Claimant's knowledge is just as puzzling as the second piece of evidence the Government presented. Like the second piece of evidence the Government does not explain how the act of pointing out drug houses in the neighborhood establishes the pro se Claimant had knowledge of the alleged illegal activities occurring at the Defendant property. The Government is not alleging that the pro se Claimant pointed to the Defendant property, her property, and identified it as a drug house (Ct. Rec. 46). Like the Government's second piece of evidence, if this were all the Government were offering to show the pro se Claimant had knowledge it to would probably be insufficient to avoid summary judgment.
Nonetheless, the Government has probably offered sufficient evidence to avoid summary judgment. Though it was not set forth in this manner by the Government, the Government has offered the following evidence which, construed in a light most favorable to the Government, is likely sufficient to raise a genuine dispute of material fact as to whether the pro claimant had knowledge of the alleged illegal activities:
(1) over a five day period four controlled buys of cocaine were conducted at the Defendant property, Ct. Rec. 47;
(2) the pro claimant resides at Defendant property; and
See Ct. Rec. 47. The pro se Claimant denies that she resides at the Defendant property (Ct. Rec. 53). However, the pro se Claimant admits that she turned the Defendant property into a duplex and that she now resides in the other half of the duplex. Id.; Ct. Rec. 39.
(3) the pro se Claimant is the mother of one of the persons who was allegedly dealing cocaine at the Defendant property.
See Ct. Recs. 47 and 53.
In sum, these three pieces of evidence are sufficient for the Government to avoid summary judgment. The alleged illegal drug transactions, coupled with the proximity of the pro se Claimant to the alleged drug transactions and relationship of the pro se Claimant to one of the alleged drug dealers is probably sufficient to create a genuine dispute of material fact as to whether she had knowledge. It cannot be said as a matter of law the Claimant has proven that she had no knowledge, especially construing the facts in a light most favorable to the Government.
Pro se Claimant's Motion for Summary Judgment based on lack of knowledge is denied. Whether the Government has established as a matter of law that the claimant cannot prove the innocent owner defense is addressed infra.
(ii) Has the Pro se Claimant Proven as a Matter of Law that she did not Consent to the Alleged Illegal Activities and thus is an Innocent Owner?
The pro se Claimant also asserts that she did not consent to the alleged illegal conduct giving rise to the instant civil forfeiture action (Ct. Rec. 20). CAFRA provides that an owner's property shall not be forfeited if "upon learning of the conduct giving rise to the forfeiture, [the property owner] did all that reasonably could be expected under the circumstances to terminate such use of the property." 18 U.S.C. § 983(d)(2)(A)(ii). Congress enumerated some examples by which a property owner could prove that they did all that could be reasonably expected. The two examples listed are (1) giving timely notice to law enforcement of the illegal activities and (2) revoking the permission to use the property of those who are engaged in the illegal activities. 18 U.S.C. § 983(d)(2)(B)(i)(I) and (II).
In this case, the pro se Claimant has not asserted that she gave notice to the authorities or attempted to revoke permission to use the property. Thus, summary judgment based on lack of consent would be inappropriate and is therefore denied.
(b) Has the Pro Se Claimant Proven as a Matter of Law that the Plaintiff Cannot Prove Its Case?
Pro se Claimant Eulojia Almaguer's other argument for summary judgment in her favor is that the Government will not be able prove its case (Ct. Recs. ¶ and 38). In support, she argues that the Government relied solely on hearsay to support its case and that hearsay is inadmissible. Id. The Claimant's argument raises an interesting question: whether the Government may rely on hearsay in order to prove its case. Both the legislative history of CAFRA and a number of sources since the enactment of CAFRA have said that the Government may no longer use hearsay to prove its case. See 146 Cong. Rec. H2040-01 (daily ed. Apr. 11, 2000) (statement of Rep. Hyde), 2000 WL 368969 ("[W]hile hearsay may used to establish probable cause for seizure it is not admissible to establish the forfeitability of property . . ."); 1 David B. Smith, Prosecution and Defense of Forfeiture Cases, § 10.06, at 10-101 (2002) (" [The government] cannot use inadmissible hearsay evidence to prove its case."); United States v. One Parcel of Property Located at 2526 Faxon Ave., Memphis, Tennessee, 145 F. Supp.2d 942, 950 (W.D. Tenn. 2001) ("[The Government] cannot proceed on mere hearsay. And a claimant (who has appropriate standing) can now `put the government to its proof', without doing more than denying the government's right to forfeit the property."); United States v. Six Negotiable Checks in Various Denominations Totaling $192,671.69 and $8,559 in United States Currency, 207 F. Supp.2d 677,683 (E.D. Mich. 2002) ("As the government recognizes in its reply brief, this elevated standard seemingly precludes any reliance on hearsay, as the government could have done in a pre-CAFRA case") (citation omitted).
While CAFRA itself does not mention hearsay, the requirement that the Government not use hearsay to prove its case stems from the new elevated burden of proof whereby the Government is now required to prove its case by a preponderance of the evidence. 18 U.S.C. § 983(c)(1) Based on the old standard the Government only needed to prove that there was probable cause that the property was subject to forfeiture. The determination of probable cause could be established by circumstantial evidence and otherwise inadmissible hearsay. See, e.g., United States v. $405,089.23 in U.S. Currency, 122 F.3d 1285, 1289 (9th Cir. 1997) ("The government may establish probable cause by relying on otherwise inadmissible hearsay because the question of probable cause depends not upon the admissibility of the evidence upon which the government relies, but upon the legal sufficiency and reliability of the evidence.") (internal quotation and citation omitted).
With the new preponderance of the evidence standard, on the other hand, at the summary judgment phase the Court's consideration is generally limited to material that would be admissible at trial. 10A Wright Miller § 2721 at 361 (3d ed 1998) ("The court may consider any material that would be admissible or usable at trial."), citing, inter alia, MCA Records, Inc. v. Charly Records, Ltd., 865 F. Supp. 649, 658 (D.C. Cal. 1994). Under Rule 56(c) of the Federal Rules of Civil Procedure, judgment will be granted if the "pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."
So the true test in this case is whether the Plaintiff has submitted sufficient admissible evidence to withstand summary judgment. In order to prevail the Government must establish by a preponderance of the evidence that (1) the Defendant property was used or intended to be used in any manner that makes the property forfeitable under 21 U.S.C. § 881(a)(7), and (2) that there was a substantial connection between the Defendant property and the illegal activities as is required by 18 U.S.C. § 983(c)(3).
Reading the Plaintiff's Complaint, the pro se Claimant appears to be right suggesting that all of the evidence set forth in the Complaint is hearsay. See Ct. Rec. 1. If this were all that the Government submitted then Claimant probably would be entitled to summary judgment. However, in response to pro se Claimant's Motion to Dismiss, the Government filed responsive briefing.
On July 31, 2002, the United States filed its Reply to the Claimant's Response for Motion for Summary Judgment (Ct. Rec. 46). Here the Government purports to set forth the admissible evidence that establishes the Defendant property is forfeitable. Id. In support the Government submitted the Declaration of Officer Larry H. Ehrhardt (Ct. Rec. 47). While this is not an affidavit, the Officer declared under penalty of perjury that the declaration is true and correct. Id. According to the Government, the Declaration establishes that Officer Ehrhardt was the primary officer involved in the investigation of drug sales from the residence at 71 Egan Road in Wapato, Washington. Id. If this is admissible evidence, it is probably sufficient evidence for the Government to avoid summary judgment because the declaration, if true, establishes that the Defendant property was involved in some illegal transactions that would make the Defendant property subject to civil forfeiture.
The Plaintiff contends that the Officer's Declaration, or the information contained therein, is admissible for a few reasons. First, the Government argues that it is Officer Ehrhardt's recitation of the investigation that he perceived, (e.g. the Government claims that Officer Ehrhardt personally witnessed the CI's search prior to each sale and return with cocaine, and that Officer Ehrhardt personally participated in an operation where Ms. Cantu's supplier of illegal drugs was arrested and cocaine seized that were "destined" for the Defendant property) (Ct. Rec. 46). Second, the Government points out that Officer Ehrhardt relied on another officer to continue surveillance when the CI entered the residence and the other officer relayed information to Officer Ehrhardt. Id. The Government argues that the information received by Officer Ehrhardt from the other officer is admissible under Rule 803(1) of the Federal Rules of Evidence as a present sense impression. Id. Third, the Government claims that the statements of Ms. Consuelo Cantu where she allegedly admits that she was dealing cocaine from the Defendant property, are admissible because Ms. Cantu would likely invoke her Fifth Amendment privilege and therefore be unavailable under Federal Rule of Evidence 804(3)(b) [sic, it is actually 804(b)(3)]. Id. Under Rule 804(a), argues the Government, it would be admissible because she is unavailable and it was a statement made against her interests, subjecting her to criminal liability. Id.
Based on the Declaration of Office Ehrhardt, it appears that the Government has offered sufficient admissible evidence to avoid summary judgment. Viewing the facts in a light most favorable to the Government, the Declaration of Officer Larry Ehrhardt, if taken as true, establishes that the Defendant property was involved in illegal activity that would make the property subject to civil forfeiture and that there is a substantial connection between the property and the offense. See 18 U.S.C. § 983(c)(1) and (c)(3).
Based on a review of all of the admissible evidence offered by the Government, it appears that the Claimant has failed to meet her burden to show that there is no genuine issue of material fact and that the Claimant is entitled to summary judgment as a matter of law. Therefore, summary judgment is denied.
E. THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT
The same legal framework discussed supra will be applied to the Government's motion for summary judgment. However, the Court will now construe the facts in a light most favorable to the pro se Claimant and then determine if the Government has demonstrated that there is no genuine dispute of material fact. Here, the framing of the argument by the Government made it somewhat tedious to evaluate whether summary judgment was appropriate. In its complaint, the Government states that it has "reason to believe" the Defendant property is subject to forfeiture (Ct. Rec. 1). In its Motion for Summary Judgment, the Government claims it has met its burden of proving that there is `probable cause' to believe that the Defendant property is forfeitable (Ct. Rec. 29). Based on this, the Government requests that the Court grant summary judgment in its favor. Id. at 8.
Probable cause, however, is not the standard the Government is required to meet in order to be entitled to the civil forfeiture of a person's property. 18 U.S.C. § 983(c). Congress recently went through great pains to amend the civil forfeiture statutes. See CAFRA, Pub.L. No. 106-185, 114 Stat. 202 (2000) (codified principally at 18 U.S.C. § 983). The overhaul was based on alleged governmental abuses of the civil forfeiture statutes. See, e.g., 1 David B. Smith, Prosecution and Defense of Forfeiture Cases, § 1.02 [4], pp. 1-26 — 1-32.3, (detailing the media coverage of numerous governmental abuses of the forfeiture statutes). As the Sixth Circuit noted, "[CAFPA] is specifically designed to rectify an unfairness to the individual, vis-a-vis the government. It corrects an aberration that existed previously by leveling the playing field between the government and persons whose property has been seized. Here, the legislation raises the government's burden of proof in civil forfeiture actions to the burden normally borne by the plaintiff in a civil case — preponderance of the evidence. The legislation corrects a provision in the law that had been criticized repeatedly by courts and legal commentators." United States v. Real Property in Section 9, Town. 29 N., Range 1 West T.P. of Charleton, Ostego Co., Michigan, 241 F.3d 796, 799 (6th Cir. 2001) (citations omitted). The Ninth Circuit had noted the potential constitutional problems with allowing the forfeiture of property based on probable cause, stating:
We observe that allowing the government to forfeit property based on a mere showing of probable cause is a `constitutional anomaly.' As the Supreme Court has explained, the burdens of proof are intended in part to indicate the relative importance attached to the ultimate decision. The stakes are exceedingly high in a forfeiture proceeding: claimants are threatened with permanent deprivation of the property, from their hard earned money, to their sole means of transport, to their homes. We find it surprising for the Constitution to permit such an important decision to turn on a meager burden of proof like probable cause.United States v. $49,776 in U.S. Currency, 116 F.3d 425, 429 (9th Cir. 1997) (internal citations and quotations omitted).
In this case the Government mistakenly argued that "[i]n the present case, summary judgment is proper since there is no reasonable dispute as to the facts relevant to the issue of probable cause" (Ct. Rec. 29). (emphasis added). Not cognizant of CAFRA, the Government submitted that "once the government makes its preliminary showing of probable cause to institute forfeiture, § 1615 shifts the burden of proof to the claimants opposing forfeiture." Id. at 6.
Later, the Government seemingly recognized that Congress's new statute governed and submitted a supplementary brief (Ct. Rec. 34). The Government's supplementary brief suggested that the innocent owner defense might be altered by the new statute, but specifically left the rest of its analysis the same. Id. Later still, in its Reply to Claimant's Response to Plaintiff's Motion for Summary Judgment, the Government appears to have finally figured out that CAFRA significantly changed the law (Ct. Rec. 46). Here, the Government recognizes the new burden of proof set forth in CAFRA, the implications of the new burden of proof, and then sets forth why the Government should be granted summary judgment under the new law. Id. In the end, the Government's Reply to the Claimant's Response, (Ct. Rec. 46), is probably sufficient in setting forth the Government's argument for summary judgment and the correct, applicable law for the Court to assess whether summary judgment is appropriate.
In this case, the Government will be entitled to summary judgment only if it has carried its burden of proving its claim by a preponderance of the evidence. 18 U.S.C. § 983(c). Construing all facts in a light most favorable to the Claimant, the Government must show there is no genuine issue of material fact. Celotex, 477 U.S. at 323. The Court can grant summary judgment as to separate issues presented. Fed.R.Civ.P. 56. In this case there are three matters that the Court could grant summary judgment in the Government's favor: (1) whether the property was used or intended to be used in any manner that makes the property forfeitable under 21 U.S.C. § 881(a)(7); (2) whether there was a substantial connection between the illegal activities and the Defendant property as is required by CAFRA, 18 U.S.C. § 983 § (c)(3); and (3) whether Claimant Eulojia Almaguer had knowledge of the alleged activity that made the property forfeitable.
1. Has the Government Established as a Matter of Law that the Defendant Property Was Used or Intended to be Used in Any Manner That Makes the Property Forfeitable Under 21 U.S.C. § 881(a)(7)?
The Government submits that under 21 U.S.C. § 881(a)(7) real property "which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this subchapter punishable by more than one year's imprisonment" is subject to civil forfeiture (Ct. Rec. 46). The Government tenders that distribution and/or possession with intent to distribute cocaine is crime punishable by up to 20 year term of imprisonment under 21 U.S.C. § 841(b)(1)(C). Id.
In support of its motion for summary judgment the Government offers the evidence outlined above, i.e. the declaration of Officer Ehrhardt and the alleged confession of Ms. Consuelo Cantu. Id. As previously discussed the declaration purports to establish that the Defendant property was used to facilitate the distribution of cocaine on four occasions.
The pro se Claimant has offered two affidavits (Ct. Rec. 39). First, the affidavit of Ms. Consuelo Cantu which states that when the alleged confession was given, Ms. Cantu was "under duress, threatened, and verbally abused by the Wapato Police Department." Id. at Ex. D. Ms. Cantu's affidavit also states that "there was nothing going on," at the Defendant property. Id. Second, the pro se Claimant offers her own affidavit which states "I had no knowledge of any type of activit[y] going on, cause there was none." Id. at Ex. F.
Construing the facts in light most favorable to the pro se Claimant probably means disregarding the alleged confession of Ms. Cantu. Or, at minimum, finding that the alleged confession does not establish that there is no genuine dispute of material fact entitling the Government to summary judgment. In her affidavit Ms. Cantu states that the alleged confession was made under duress, threats and verbal abuse. Id. at Ex. D. Also a look at the actual alleged confession shows some discrepancies. In one of the statements Ms. Cantu states "I've been dealing cocaine out of my residence for 2 months. I buy every 3-4 days from my supplier Juan Aguilar[.] [H]e brings the stuff in his truck. [H]e usually brings 3 8 balls on him. I sell to 5 people [a] week." Ct. Rec. 47 at Ex. A. In another statement taken the same day, seven minutes after the first, Ms. Cantu states that she "buy[s] 3-4 8 ball [s] a w[ee]k cocain[e]." Id. In other words, in seven minutes the amount of cocaine Ms. Cantu admitted to dealing was almost cut in half. Also worth note, in the later statement when asked if she dealt cocaine of her residence at 71 Egan Road, Ms. Cantu stated that she "did a couple of times." Id. This is drastically different then what the Government argues should be implied from the first statement, i.e. that Ms. Cantu had been dealing cocaine out her residence for two months, selling to five people a week (Ct. Rec. 47, p. 2). In sum, based on the affidavit of Ms. Cantu stating the confession was given under duress and the inconsistencies of the two statements, the Court could probably not say that the Government has not met its burden based on the alleged confession of Ms. Cantu.
However, the Government also offered the declaration of Officer Ehrhardt. As outlined above, the declaration purports to establish four illegal drug sales occurred at the Defendant property. The pro se Claimant attacks the declaration on the grounds that it is hearsay, but as noted supra the Government has sufficiently demonstrated how the evidence would be admissible (Ct. Recs. 38 and 39). The pro se Claimant also attacks the declaration on a few other grounds. For example, she argues that the government has not shown that the confidential informant [CI] was reliable, and thus the CI could be a drug user who was merely setting-up someone (Ct. Rec. 39). The pro se Claimant also argues the officers failed to properly search the CI and thus the CI could have planted the drugs on him or herself. Id.
Considering all the relevant evidence and posture of the case, the Court will deny the Government's Motion in the interests of justice and judicial economy. The Government probably submitted sufficient evidence to establish that the property was used to commit or facilitate a crime that makes the Defendant property subject to forfeiture. However, the pro se Claimant is raising issues that may have merit, but is not articulating the issues clearly. Also, with the newness of CAFRA there is not a lot of guidance regarding the burden on the Government with the new standard of proof. The Court's conclusion that the pro se Claimant should be appointed counsel, see supra, means that counsel could then articulate (or drop altogether) the issues in a way that would allow the Court to evaluate their merit. Finally, the Court's ultimate conclusion that summary judgment for the Government is inappropriate because a genuine issue of material fact remains as to whether the pro se Claimant had knowledge of the alleged conduct giving rise to the forfeiture, see infra, means that denial of summary judgment on the this issue should not seriously prejudice any party.
2. Has the Government Established as a Matter of Law That There Was a Substantial Connection Between the Defendant Property and the Alleged Illegal Activities Under 18 U.S.C. § 983(c)(3)?
The Government argues that based on the alleged confession of Ms. Cantu and declaration of Officer Ehrhardt "there is no material fact in dispute that there was a substantial connection between the property and the offense." Ct. Rec. 46, p. 5.
Based on the exact same analysis and conclusion from the previous section the Court will deny the Government's Motion for Summary Judgment.
3. Has the Government Established as a Matter of Law That the Pro Se Claimant Cannot Prove That She Lacked Knowledge of the Alleged Illegal Activities?
The Government's argument that the pro se Claimant had knowledge of the alleged illegal activities is extensively outlined supra. As noted earlier, the evidence submitted by the Government establishing that the pro se Claimant had knowledge is circumstantial and under-whelming. However, under CAFRA it is the Claimant's burden to establish by a preponderance of the evidence that she "did not know of the conduct giving rise to forfeiture." 18 U.S.C. § 983(d)(1). To be entitled to summary judgment on the issue of the Claimant's knowledge the Government must demonstrate, construing the facts in a light most favorable to the claimant, that there is no genuine issue of material fact as to the claimant's knowledge. See, e.g., Street v. J.C. Bradford Co., 886 F.2 1472, 1479 (6th Cir. 1989).
There is a "general principle that it is usually inappropriate to grant summary judgment when the mental state of the non-moving party is an essential element of a claim." Smith, 1 Prosecution and Defense of Forfeiture Case, § 10.06, 10-102.6 n. 52.2 (2002) ("this is so because a party's mental state is inherently a question of fact which turns on credibility") citing, inter alia, United States v. Real Property at 10936 Oak Run Circle, 9 F.3d 74 (9th Cir. 1993) (reversing grant of summary judgment against alleged innocent owners.)
In civil forfeiture cases, "[w]here the courts have granted the government's motion for summary judgment despite the claimant's assertion of ignorance, they have done so because the government has presented so much evidence from which the claimant's actual knowledge can be inferred that the claimant's unsupported assertion of ignorance is simply implausible." United States v. 8848 South Commercial Street, 757 F. Supp. 871, 884 (N.D. Ill. 1990).
Also, "[a]lthough a claimant submits only his or her own self-serving affidavit, the claimant can nonetheless avoid summary judgment if it is not conclusory and it raises a genuine issue of material fact. A genuine issue of material fact exists when the claimant produces evidence on which a reasonable trier-of-fact could find in the claimant's favor, on viewing the record as a whole in view of the burden of proof placed on the claimant." Smith, 1 Prosecution and Defense of Forfeiture Case, § 10.06, at 10-102.7 n. 53 (2002), citing, inter alia, United States v. 1 Parcel of Real Property, 904 F.2d 487 (9th Cir. 1990). "A judge may not grant summary judgment for the government simply because he does not believe the affidavit submitted by the claimant." United States v. Two Tracts of Land, 5 F.3d 1360 (9th Cir. 1993) (reversing grant of summary judgment and remanding f or a bench trial before the same judge).
In this case, the pro se Claimant has submitted sufficient evidence from which a trier of fact could conclude she did not have knowledge of the alleged illegal activities given rise to the forfeiture. The affidavit of the pro se Claimant states that as a landlord renting to a tenant she had no knowledge of the tenant's alleged illegal activities (Ct. Rec. 39 at Ex. F). Also, the affidavit of Ms. Cantu, the tenant who was allegedly involved in the illegal activities, states that her landlady, the pro se Claimant, had no knowledge of the illegal activities. Id. at Ex. D. Based on these asserted facts a rational trier of fact could conclude the pro se Claimant lacked knowledge. Nor has the Government offered such a substantial amount of evidence establishing the claimant's actual knowledge that it makes the pro se Claimant's denial of knowledge implausible. That the pro se Claimant is Ms. Cantu's mother, resides next door in a duplex, and has an interest in the outcome of the case, may seriously call into question the credibility of the pro se Claimant and Ms. Cantu. But these types of questions are for a trier of fact to decide, not properly decided on a motion for summary judgment. See Anderson, 477 U.S. at 255 (1986) ("Credibility determination[ is] a jury function.").
See, e.g., U.S. v. 1 Parcel of Real Property, 904 F.2d 487, 492 (9th Cir. 1990) (While the government is entitled to shift the burden of persuasion to the [claimant], it is not entitled to have its facts deemed conclusively established. . . . Although the evidence in [the Claimant's] affidavit is hardly overwhelming, we believe that a rational trier of fact could find it to be credible. Clearly, it would make a world of difference which version of events the trier of fact believes."
III. CONCLUSION
Based on the aforementioned, the Court will appoint counsel for the pro se Claimant, assuming she completes and submits the required paperwork and financially qualifies. The Court denies pro se Claimant's Motion to Dismiss, Motion for Summary Judgment, and the Government's Motion for Summary Judgment. Accordingly,
IT IS ORDERED that:
1. Claimant Eulojia Almaguer's Motion to Dismiss, filed May 13, 2002, Ct. Rec. 6, is DENIED.
2. Plaintiff's Motion for Summary Judgment, filed July 5, 2002, Ct. Rec. 30, is DENIED.
3. Claimant Eulojia Almaguer's Motion for Summary Judgment, filed July 10, 2002, Ct. Rec. 38, is DENIED.
4. Claimant Eulojia Almaguer shall be provided with a Financial Affidavit by the District Court Executive with her copy of this Order. Ms. Almaguer shall:
(a) COMPLETE the financial affidavit; and
(b) DELIVER the same to Magistrate Judge Lonny R. Suko no later than November 15, 2002.
5. The Court REQUESTS that Magistrate Judge Lonny Suko determine whether Claimant Eulojia Almaguer financially qualifies for court-appointed counsel and, if appropriate, to locate and appoint counsel from Legal Services Corporation, in accordance with 18 U.S.C. § 983(B)(2) and (3).
6. Magistrate Suko is also requested to instruct counsel from Legal Services Corporation that counsel will be required to submit a statement of reasonable attorney's fees and costs to the Court at the appropriate time. The Court will enter judgment in favor of Legal Services Corporation for reasonable attorney's fees and costs, regardless of the outcome of the case, payable under 28 U.S.C. § 2465.
The District Court Executive is directed to file this Order and provide copies to counsel and pro se Claimant Eulojia A. Almaguer, 71 Egan Road, Wapato, Washington 98951-9004, AND TO Magistrate Judge Lonny R. Suko.