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UNITED STATES v. 10652 SOUTH LARAMIE

October 2, 1991

UNITED STATES OF AMERICA, Plaintiff,
v.
10652 SOUTH LARAMIE, OAK LAWN, ILLINOIS, Defendant, JOHN F. PETROZZA, OAK LAWN TRUST AND SAVINGS BANK, Claimants.


Charles P. Kocoras, United States District Judge.


The opinion of the court was delivered by: KOCORAS

CHARLES P. KOCORAS, UNITED STATES DISTRICT JUDGE

 The United States has brought a forfeiture action pursuant to 21 U.S.C. § 881(a)(7) against the property located at 10652 South Laramie, Oak Lawn, Illinois, on the grounds that the property was used to facilitate the distribution of cocaine. A claim of ownership was filed on November 17, 1989 on behalf of John Petrozza ("Petrozza") and the Oak Lawn Trust & Savings Bank as Trustee.

 On June 18, 1991, Petrozza pleaded guilty before Judge Plunkett of this court to the charge of conspiracy to distribute cocaine with co-defendant David Avery ("Avery"). The United States and Petrozza entered into a plea agreement, in which it was stated, "At least half the time, Avery delivered the cocaine directly to defendant's [Petrozza's] residence." Petrozza admits that about half of the time, Avery delivered quantities of cocaine to his house, but claims that all of the transactions occurred on the street in front of his residence, but never inside his home. The United States now moves for summary judgment pursuant to Rule 56 Fed. R. Civ. P. based solely on Petrozza's guilty plea. The United States argues that the guilty plea can be used to collaterally estop Petrozza from denying the illegality of his activity in this forfeiture proceeding. Petrozza argues that the prerequisites for the application of collateral estoppel have not been met.

 LEGAL STANDARD

 Summary judgment is appropriate where the submissions of the parties indicate that no genuine issue of material fact stands in the way of the judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The party seeking summary judgment has the burden of showing that no such issue of material fact exists. Once this burden is met, the burden shifts to the nonmovant to produce evidence which shows that a genuine issue of material fact still remains. Randall v. LaSalle Telecommunications, Inc., 876 F.2d 563, 567 (7th Cir. 1989). The nonmovant "may not rest upon mere allegations," but "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); see also Celotex Corp. v. Catreet, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Schroeder v. Lufthansa German Airlines, 875 F.2d 613, 620 (7th Cir. 1989). During this process, the party opposing summary judgment must be given the benefit of all favorable inferences which can be reasonably drawn from the underlying facts. DeValk Lincoln Mercury v. Ford Motor Co., 811 F.2d 326, 329 (7th Cir. 1987). Summary judgment may be granted when it is beyond doubt that a reasonable jury could not find in favor of the nonmovant. We address the United States' summary judgment motion with these standards in mind.

 DISCUSSION

 21 U.S.C. § 881(a)(7) provides in pertinent part:

 
(a) Subject property. The following shall be subject to forfeiture to the United States and no property right shall exist in them:
 
. . . .
 
(7) All real property, including any right, title, and interest . . . in the whole of any lot or any tract of land and any appurtenances or improvements 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 . . .
 
. . . .
 
21 U.S.C. § 881(a)(7) (1984).

 The United States argues that Petrozza's guilty plea can be used to estop him from arguing that he did not use his house to commit a crime, consequently subjecting his home to the forfeiture provision of § 881(a)(7). The government cites several cases which hold that a guilty plea in a criminal case can be used to establish collateral estoppel in a later civil action. See Appley v. West, 832 F.2d 1021, 1026 (7th Cir. 1986); Nathan v. Tenna Corp., 560 F.2d 761, 763 (7th Cir. 1977). It is clear from these cases that because of his guilty plea, Petrozza cannot deny that he distributed cocaine. However, whether Petrozza distributed cocaine is not at issue in this proceeding. Rather, ...


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