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UNITED STATES v. 5854 NORTH KENMORE

March 13, 1991

UNITED STATES OF AMERICA, Plaintiff,
v.
5854 NORTH KENMORE, CHICAGO, ILLINOIS, all improvements and appurtenances thereto, Defendant


Ann Claire Williams, United States District Judge.


The opinion of the court was delivered by: WILLIAMS

ANN CLAIRE WILLIAMS, UNITED STATES DISTRICT JUDGE

 The captioned matter is a civil action brought by the government for forfeiture of property pursuant to 21 U.S.C. § 881(a)(7). The property consists of a twenty-six unit apartment building, which the government maintains was used by Otto Birgel to facilitate the sale of drugs. Otto Birgel held title to the defendant property, but he is now deceased. The government has moved for summary judgment in this action, while Anita Birgel, Otto Birgel's widow and administrator of his estate, moves to dismiss the forfeiture action. For the reasons explained below, the government's motion for summary judgment is denied. Claimant's motion to dismiss is also denied.

 The following facts are undisputed by the parties. On May 18, 1989, at approximately 5:30 p.m., Special Agent William Haley of the Illinois State Police, acting in an undercover capacity, purchased approximately one-half ounce of cocaine from Otto Birgel in apartment 3A of the defendant premises. On May 19, 1989, at approximately 5:30 p.m., pursuant to Mr. Birgel's instructions, Agent Haley went to apartment 3C at the defendant premises in order to purchase one and a half to two ounces of cocaine from an individual named James Mallet. Haley met Mallet in the apartment and negotiated the terms of the deal. While Mallet stated that he had been told by Birgel to sell Haley some cocaine, the two men got involved in a dispute concerning the terms of the sale, and the deal was not completed. On August 2, 1989, agent Haley purchased another half ounce of cocaine from Birgel in apartment 3A at the defendant premises. The two men discussed the possibility of future drug deals between them.

 Because of the events described above, Otto Birgel was indicted in the Circuit Court of Cook County, charged with delivery of cocaine and conspiracy to deliver cocaine. These offenses are punishable by more than one year imprisonment. This forfeiture action was filed in federal court on August 14, 1989. Otto Birgel, Anita Birgel, and Talman Savings and Loan, filed claims to the defendant property. On December 11, 1989, the parties (presumably Otto Birgel, Anita Birgel, Talman Savings and the government) agreed to the sale of the defendant property prior to the resolution of the forfeiture action. The U.S. Marshal service sold the property for $ 535,000 on July 11, 1990, leaving net proceeds of $ 412,785.40.

 Shortly after midnight on March 21, 1990, Otto Birgel was found shot to death at the defendant premises, the government argues that he was the victim of "a drug-related murder."

 Anita Birgel presents the following facts, which are uncontested by the government. The real property at 5854 North Kenmore was purchased in 1968. Mr and Mrs. Birgel pooled their funds to purchase the defendant property. Ms. Birgel claims that of the $ 58,000 down payment on the property, $ 38,000 was contributed by the Birgels, and $ 10,000 was borrowed from her mother. Of the $ 38,000 which she and Mr. Birgel saved for the down payment, Ms. Birgel personally contributed money earned from her job. Only Otto Birgel was listed as beneficiary of the land trust which held title to the building.

 During the twenty years that they owned the building, the Birgels paid the building's mortgage, tax, utility, and other bills, out of joint checking and savings accounts, which both of them contributed funds to. Further, all rents collected from 5854 Kenmore were deposited in the same joint checking and savings accounts. Both Mr. and Mrs. Birgel had equal access and control over the funds in the accounts, and the income which they earned on the apartment building was reported on the couple's joint income tax statements.

 Ms. Birgel participated both in building maintenance and management: she helped with building renovations, and was, at times, responsible for collecting rent from tenants. Ms. Birgel reports that she had a set of keys to the building, which gave her access to every apartment in the building. Ms. Birgel states, and the government does not deny, that at no time between 1968 and the filing of the government's forfeiture action did she know that drugs were being sold at 5854 North Kenmore.

 The government now moves for summary judgment in this action against the net proceeds of the defendant premises, arguing that it has a right to the money under § 881(a)(7). Ms. Birgel contests the motion for summary judgment on several grounds: (1) that because Otto Birgel is dead, abatement of the forfeiture action is required; (2) that forfeiture of the entire tract of land would violate 21 U.S.C. § 881(a)(7), and the eighth amendment; and (3) that forfeiture of the entire property would violate Anita Birgel's property interests, as an innocent owner. For the reasons explained below, the government's motion for summary judgment is denied.

 The Motion for Summary Judgment

 The government seized the defendant apartment building under the authority of 21 U.S.C. § 881(a), which provides in pertinent part:

 
(a) The following shall be subject to forfeiture to the United States and no property ...

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