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September 23, 1991

30 IRONWOOD COURT, et al., Defendants, and ALAN J. SCHROEDER, et al., Claimants

The opinion of the court was delivered by: SHADUR


 Both the United States and claimant Alan Schroeder ("Schroeder") have filed summary judgment motions under Fed. R. Civ. P. ("Rule") 56 in this civil forfeiture action under 21 U.S.C. § 881(a)(7), *fn1" which targets both Schroeder's residence at 30 Ironwood Court, Frankfort, Illinois and his law office at 111 Ash Street in the same city. *fn2" For the reasons stated in this memorandum opinion and order, the United States' motion is granted in its entirety. *fn3"

 This action is based on the United States' claim that both Schroeder's house and his law office were real property "used . . . in any manner or part . . . to facilitate the commission of" federal felony drug offenses (the quoted language is drawn from Section 881(a)(7)). It has remained on the back burner for an extended period of time awaiting the resolution of Schroeder's state court prosecution on narcotics charges. *fn4"

 Finally on August 13, 1991 Schroeder pleaded guilty in the Circuit Court of Will County to two counts of delivering cocaine to a 16-year-old boy (who was a client of Schroeder's in Juvenile Court proceedings), once at Schroeder's home and once at his law office. In the course of that guilty plea, *fn5" Schroeder admitted (Tr. 25, 27, 30, 31, 32) that on the first occasion he himself smoked some cocaine before giving .5 grams to the young man to take away with him from Schroeder's home (Tr. 20-22), while on the second occasion (in Schroeder's law office) both of them ingested cocaine and then Schroeder gave the boy another .1 gram (Tr. 22-23). On that second occasion police officers then executed a previously-obtained search warrant and retrieved both the residue of cocaine and the instruments used to ingest the substance. Later a search of Schroeder's home uncovered no additional drugs (except for cocaine residue in a glass vial), but the police did find drug paraphernalia (a pipe, a mirror, a razor blade and a screen) consistent with the personal consumption of drugs and not with drug trafficking as such.

 As n.2 indicates, there is one factual dispute between the United States and Schroeder. Schroeder says that the cocaine at his residence -- both that used by him and the quantity delivered to the boy -- had been brought to the house in a shoe that Schroeder was wearing. According to the United States (based on the boy's statement), however, Schroeder retrieved the cocaine from the inside of a shoe that was already in the home's kitchen -- and had thus been stored there for some period of time. Because this Court has concluded that the United States prevails on the current motion, it has necessarily accepted arguendo Schroeder's version of the facts in that respect (see n.2).

 Drug-Related Forfeitures

 Although Schroeder has not been convicted of a federal drug offense (Section 881(a)(7) permits forfeiture of real estate used "to facilitate the commission of a violation of this title punishable by more than one year's imprisonment"), that is irrelevant under the circumstances here. By the very nature of his drug conviction in the state court and his admissions in the course of his guilty plea there, Schroeder has acknowledged that on each of the two occasions he delivered cocaine to the youngster (who, unknown to Schroeder, was then acting as a confidential informant to the authorities). That admission binds Schroeder as a matter of issue preclusion, and he wisely does not contest that here. And under Section 841(a)(1) any such delivery is a federal felony. *fn6"

 As to Schroeder's home, however, he advances two arguments. For one thing, he challenges the notion that the home was used to "facilitate" the delivery because he says it was only incidental and fortuitous that the delivery happened there rather than (say) on the street, in a car or anywhere else. As his second argument, Schroeder renews the contention that forfeiture of his home is disproportionate to the offense (an argument that he originally advanced when he moved to dismiss this action much earlier in its history).

 As for the "facilitation" concept, both sides point -- as they should have -- to our Court of Appeals' opinion in United States v. 916 Douglas Avenue, 903 F.2d 490 (7th Cir. 1990). Of course they cannot both be right, and in this Court's view the United States clearly has the better of it. In fact, our Court of Appeals has just this month (in United States v. 6250 Ledge Road, No. 90-3590, 943 F.2d 721, 1991 U.S. App. LEXIS 21424 (7th Cir. Sept. 11, 1991)) *fn9" unequivocally reconfirmed the principles announced last year in 916 Douglas.

 Unlike a number of other Courts of Appeal, which had read Section 881(a)(7) as requiring a "substantial connection" between the real estate and the drug transaction to permit forfeiture, 916 Douglas, 903 F.2d at 492 found the statutory language "clear, straightforward and unambiguous." Accordingly our Court of Appeals rejected the recourse to legislative history that had generated the "substantial connection" holdings elsewhere (id.). In place of that standard, 916 Douglas, id. at 493, 494 requires only that the relationship between the property and the drug felony be "more than incidental or fortuitous." Accord, 6250 Ledge Road, at *13-15.

 This case meets that test. If telephone conversations to and from a property to arrange for a drug delivery create the necessary more-than-incidental-and-fortuitous link (as 916 Douglas, id. at 494 held), then a fortiori the actual delivery of drugs in the ...

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