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UNITED STATES v. 8848 SOUTH COMMER. ST.

September 13, 1990

UNITED STATES OF AMERICA, Plaintiff,
v.
8848 SOUTH COMMERCIAL ST., CHICAGO, ILLINOIS, Defendant


Ilana Diamond Rovner, United States District Judge.


The opinion of the court was delivered by: ROVNER

ILANA DIAMOND ROVNER, UNITED STATES DISTRICT JUDGE

 I. INTRODUCTION

 This is a civil forfeiture action brought by the United States of America pursuant to 21 U.S.C. § 881(a)(7), arising from the government's seizure of illegal drugs at the tavern and second floor apartment owned in joint tenancy by claimants Raul and Reyna Serratos. The claimants have asserted an affirmative defense of innocent ownership. Pending before the Court is the government's motion for summary judgment. For the reasons set forth below, the government's motion is denied.

 II. FACTS

 A. Procedural Background

 On April 12, 1989, the government filed a verified complaint alleging that the defendant property was subject to forfeiture pursuant to 21 U.S.C. § 881(a)(7). Section 881(a)(7) provides for the forfeiture of all 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 title punishable by more than one year's imprisonment." The government's complaint asserts that the property was used to facilitate possession of cocaine with the intent to deliver, an offense which is punishable by more than one year imprisonment. See 21 U.S.C. § 841(a)(1). The complaint specifically alleges that on September 12, 1987, following the execution of two search warrants upon the defendant property, marijuana and cocaine were seized from both the tavern and the second floor residence of the owner of the property. (Complaint paras. 3-5.) The complaint further alleges that officers had seized cocaine during four separate arrests on the premises. (Id. para. 6.)

 On May 17, 1989, the Hon. Nicholas J. Bua, sitting in this Court's absence, granted the government's ex parte motion for a finding of probable cause. See Order dated May 17, 1989. After reviewing the government's verified complaint, the Court found that there was probable cause to believe that the real property was subject to forfeiture to the United States pursuant to § 881(a)(7). See id. Accordingly, the Court ordered the U.S. Marshal to execute a warrant of seizure and monition pursuant to Rule C of the Admiralty Rules. Id. The Marshal seized the property on May 19, 1989. Raul and Reyna Serratos filed their verified claims of ownership in the property on June 6, 1989, and a verified answer to the government's complaint for forfeiture on June 21, 1989. In their answer, the claimants deny that the defendant property was intended to be used to facilitate the possession of cocaine with the intent to deliver. (Answer para. 9.) As an affirmative defense to the government's complaint, the claimants assert that they are innocent owners of the property, and further allege that there was no probable cause to issue either of the search warrants for the first floor tavern or the second floor apartment. *fn1" (Id., Affirmative Defenses paras. 1, 2.)

 On June 27, 1989, the government filed a motion for summary judgment against the defendant property. In its supporting memorandum, the government correctly asserts that because it has shown probable cause to the satisfaction of the Court at the May 17, 1989 hearing, the burden of proof shifts to the claimants to show by a preponderance of the evidence that the property was not subject to forfeiture. E.g., United States v. $ 84,000 U.S. Currency, 717 F.2d 1090, 1101 (7th Cir. 1983), cert. denied, 469 U.S. 836, 83 L. Ed. 2d 71, 105 S. Ct. 131 (1984); United States v. One 1985 BMW 318i, VIN WBAAC8401F0685314, 696 F. Supp. 336, 339 (N.D.Ill. 1988) (Shadur, J.). In the face of the government's motion for summary judgment, this burden requires the claimants to come forward with evidence raising a genuine dispute of material fact with respect to the defenses they have asserted in their answer.

 In response to the government's motion, the Serratos have submitted affidavits supporting their assertion that they are innocent owners of the property. However, the government contends that the claimants have not submitted enough evidence to raise an issue of material fact as to whether they lacked knowledge that the property was used to facilitate the drug transactions, and that it is therefore entitled to summary judgment.

 B. Undisputed Background Facts2

 The government and the claimants agree that the real property which is the subject of this forfeiture action is known as 8848 South Commercial Street. (Complaint para. 2; Answer para. 2; Gov't 12(l) para. 1; Claimants' 12(m) para. 1.) It is also undisputed that Raul and Reyna Serratos own the property in joint tenancy. (Raul Aff., July 11, 1989, para. 1; Claimants' Mem. at 4.)

 The parties further agree that on September 12, 1987, Chicago police officers executed two search warrants at the property. The first warrant was for the second floor residence of the owners of the property and the second warrant was for the first floor tavern, known as the "Casa Blanca". (Complaint para. 3; Answer para. 3; Gov't 12(l) para. 2; Claimants' 12(m) para. 2; see also Gov't Mem. at 2.) Upon executing the warrant for the second floor residence, *fn3" the police seized 47.91 grams of marijuana and 5.9 grams of cocaine. (Complaint para. 4; Answer para. 4; Gov't 12(l) para. 4; Claimants' 12(m) para. 3; see also Gov't Mem. at 2.) The police also seized 2.91 grams of marijuana and 5.16 grams of cocaine from the first floor tavern. (Complaint para. 5.) The claimants assert, and the government has not disputed, that Raul Serratos was thereupon arrested on the property. *fn4" (Raul Aff., July 11, 1989 paras. 3, 4, 5, 6; Reyna Aff., July 11, 1989, para. 3; see also Claimants' Mem at 3.)

 C. Facts Relating to Claimants' Innocent Ownership Defense5

 The claimants have repeatedly denied knowledge of most of the government's allegations supporting the forfeiture of the property. (Answer para. 8; Claimants' 12(1) paras. 2, 3, 4, 5, 6,; Raul Aff., July 11, 1989 paras. 3, 4, 9; Reyna Aff., July 11, 1989 paras. 2,4,5; see also Claimants' Mem. at 2-5.) Specifically, the claimants assert that prior to Mr. Serratos' arrest on September 12, 1987, they were unaware that their children used drugs and had repeatedly been arrested on drug-related charges and were further unaware that drug use and transactions involving tavern customers and employees as well as other tenants residing at the defendant property had taken place. (See Raul Aff., March 13, 1990 paras. 5,7; Reyna Aff., March 13, 1990 para. 3.) As noted above, the government argues that the Serratos' simple claim of ignorance is insufficient to raise a genuine issue of fact in support of their defense of innocent ownership. (Gov't Reply at 2-4; Gov't Supp. Mem. at 3-4.) In light of this argument, it is necessary to review in detail both the government's assertions as to drug-related activity at the property and the Serratos' assertions that they were unaware of this activity.

 In its initial complaint for forfeiture, the government alleged that on September 12, 1987, police officers seized 5.16 grams of cocaine and 2.91 grams of marijuana from the first floor tavern and 5.9 grams of cocaine and 47.91 grams of marijuana from the second floor residence. (Complaint para. 4,5; Gov't 12(1) para. 3,4.) The government further alleged that four separate drug-related arrests and seizures had occurred on the property. (Complaint para. 6; Gov't 12(1) para. 5.) Claimants responded that they were without knowledge of or consent to the presence of narcotics on their property. (Claimants' 12(m) paras. 2, 3, 4, 5.) The government also alleged that on September 3, 1987, Gerrardo Serratos, the claimants' son and a resident at the defendant property, was arrested upon the discovery that he was in possession of 223 grams of marijuana. (Complaint para. 7; Gov't 12(1) para. 6.) The claimants responded that they were unaware that their son had been arrested, and asserted that they had neither known of nor consented to his possession of marijuana. (Claimants' 12(m) para. 6.)

 As noted above, the government took the position in moving for summary judgment that because it had already demonstrated to the satisfaction of the Court the existence of probable cause to forfeit the property, based upon the allegations set forth in the verified complaint, the burden now shifted to the claimants to come forward with evidence demonstrating that the property was not subject to forfeiture. The claimants invoked the innocent ownership defense in response to the motion, and tendered affidavits denying knowledge of any drug-related activity which had taken place on their property. In reply, however, the government contended that these simple denials were insufficient, and that the ...


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