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U.S. v. 1 PRCL OF RL EST. AT 343 E. 12 AVE.

February 5, 1991

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ONE PARCEL OF REAL ESTATE LOCATED AT 343 EAST 12TH AVENUE, MILAN, ILLINOIS, WITH ALL APPURTENANCES AND IMPROVEMENTS THEREON, DEFENDANT.



The opinion of the court was delivered by: Mihm, District Judge.

ORDER

Before the Court is a Motion by the United States of America for summary judgment (# 47) against claimants Randall Sorrells and Cathy Sorrells. The Court denies this Motion.

BACKGROUND

The United States of America seeks judicial forfeiture of the above-described real estate owned by Randall and Cathy Sorrells which is subject to a note and mortgage to Investors Residential Mortgage Corporation. It is the government's contention that the Defendant property was used by Randall Sorrells to store and distribute marijuana. The government seeks forfeiture of the real estate pursuant to the civil forfeiture provisions of 21 U.S.C. § 881(a)(7).

On September 13, 1989, the United States Magistrate was presented with an application for a seizure warrant which was supported by the accompanying affidavit of Special Agent Doreen Moore, who appeared before the Magistrate. After reviewing the documents submitted by the government, the Magistrate concluded that probable caused existed for the issuance of a seizure warrant. The seizure warrant was issued pursuant to the authority provided in 21 U.S.C. § 881(b).

The United States Marshal Service executed the seizure warrant on September 21, 1989, and took control over the property.

The claimants deny that the government had probable cause to believe that the property was subject to forfeiture due to the real estate being used to facilitate the commission of a violation of 21 U.S.C. § 801. The claimants also deny that the property was purchased with proceeds traceable to the exchange of controlled substances.

In addition, claimant Cathy Sorrells asserts that she is an innocent owner.

DISCUSSION

The initial question in this case is whether or not a district court must review the Magistrate's finding of probable cause de novo, or review the Magistrate's finding on the existence of probable cause in the same way that review would occur in the case of a search warrant, i.e., the abuse of discretion standard. By virtue of 21 U.S.C. § 881(d), the burden of proof in these cases is controlled by 19 U.S.C. § 1615. United States v. All That Tract (Riverdale), 696 F. Supp. 631, 634 (N.D.Ga. 1988). Under § 1615, the government must first demonstrate probable cause. Once the government has shown probable cause the burden of proof shifts to the claimant. After the burden has shifted to the claimant:

  A claimant may defend against a forfeiture either by refuting
  the government's showing of probable cause, or by coming
  forward with affirmative evidence tending to prove that the
  property was not derived from drug proceeds or used in
  furtherance of drug activities. (Citations omitted).

Id.

Based upon the relevant statutes and case law, this Court finds that there is no basis for claimant's asserted requirement that the Court must consider the issues of probable cause de novo.

Further, contrary to claimant's assertion, the court in United States v. 13,000 in U.S. Currency, 733 F.2d 581 (8th Cir. 1984), did not indicate that it considered evidence submitted by the claimants in determining whether or not the ...


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