United States v. 3402 53rd Street West, Bradenton, Fl. , 178 F. App'x 946 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 28, 2006
No. 05-16056 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-00318-CV-T-17-MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
3402 53RD STREET WEST,
BRADENTON, FL., Real
property, including all
improvements thereon and
appurtenances thereto, et al.,
Defendants,
JAMES T. SLATE,
Claimant-Appellant,
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 28, 2006)
Before BARKETT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
James T. Slate appeals the district court’s grant of summary judgment in
favor of the government in an in rem civil forfeiture proceeding brought pursuant
to 21 U.S.C. § 881(a)(7) against real property located at 3402 53rd Street,
Bradenton, Florida. On appeal, Slate argues that the government failed to
establish, by a preponderance of the evidence, that a substantial connection existed
between the property forfeited and his criminal activity, the sale of illegal drugs.
For the following reasons, we affirm.
In granting summary judgment, the district court relied heavily on a sworn
affidavit submitted by Justin C. Duralia, special agent with the Drug Enforcement
Administration (“DEA”). Duralia’s affidavit stated that he had learned from a
confidential source (“CS”) that Slate had engaged in drug trafficking, and that
Slate had sold cocaine to the CS at least fifty times since 1995. The CS claimed
that Slate had distributed approximately sixty ounces of cocaine every two-weeks
from his residence. Moreover, the CS had seen Slate “process[] powder cocaine
into crack cocaine” in his residence ten to twenty times between 1995 and 1996.
Based on the CS’s allegations, the DEA directed the CS to return to Slates’s
residence at 3402 53rd Street West, Bradenton, Florida to purchase cocaine on two
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occasions. During the first sale, the CS claimed to have seen at least sixteen
ounces of cocaine and a bag of marijuana. During the second sale, the CS claimed
to have seen about two pounds of marijuana. Two days after the second sale, DEA
agents and local officers executed a search warrant at 3402 53rd Street and found
395 grams of cocaine and two pounds of marijuana. Slate was arrested thereafter.
In his affidavit, Duralia claims that Slate stated in a post-Miranda interview that the
drugs seized from his residence belonged to him and that he sold illegal narcotics.
Following a plea of nolo contendere, Slate was judged guilty of seven counts of
sale and possession of cocaine, marijuana, and drug paraphernalia, and was
sentenced to concurrent terms of one year and one day imprisonment. Thereafter
the government filed a complaint for forfeiture in rem against the property at 3402
53rd Street.
We review the district court’s grant of summary judgment de novo.
Levinson v. Reliance Standard Life Ins. Co., 245 F.3d 1321, 1325 (11th Cir. 2001).
In civil forfeiture proceedings, “summary judgment will be granted against a party
who fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof
at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Specifically, once the
moving party, in this case the government, discharges its initial burden of showing
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an absence of evidence to support the non-moving party’s case, the non-moving
party, Slate, must specify facts proving the existence of a genuine issue of material
fact relying upon affidavits, “depositions, answers to interrogatories, and
admissions on file.” Id. at 324 (quoting Fed. R. Civ. P. 56) (internal quotation
marks omitted). All reasonable inferences must be drawn in the non-moving
party’s, Slate’s, favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Property is subject to civil forfeiture when it was “used, or intended to be
used, in any manner or part, to commit, or to facilitate the commission of” a drug
trafficking offense that is “punishable by more than one year’s imprisonment.” 21
U.S.C. § 881(a)(7). To obtain civil forfeiture, the government must establish by a
preponderance of evidence “a substantial connection between the property and the
offense.” 18 U.S.C. § 983(c)(1) and (3). The government “may use both
circumstantial evidence and hearsay,” and the district court should evaluate the
evidence presented with “a common sense view to the realities of normal life.”
United States v. Four Parcels of Real Property, 941 F.2d 1428, 1440 (11th Cir.
1991) (internal citations and quotation marks omitted).
Slate argues that forfeiture is inappropriate in the instant case because the
government failed to establish a substantial connection between the property and
the crime committed. He also claims that the district court improperly relied on
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Duralia’s affidavit because it was hearsay and it states that the CS purchased drugs
from Slate more than fifty times since 1995, but Slate did not own the property in
question until 1998.
We find that the district court did not err in ruling that there was a
substantial connection between the property and the offenses. We have previously
found that one drug sale negotiated and one drug sale completed at a residence was
sufficient to demonstrate a substantial connection between the residence and the
drug trafficking offense for purposes of forfeiture. United States v. Cleckler, 270
F.3d 1331, 1334 (11th Cir. 2001) (applying pre-CAFRA burden of probable
cause). Here, Slate was adjudicated guilty of numerous state violations relating to
the drugs found during the seizure. Moreover, approximately 395 grams of
cocaine and two pounds of marijuana were seized from the property subject to
forfeiture and Slate admitted in a post-arrest statement that the drugs seized from
his residence belonged to him and that he sold illegal narcotics. Accordingly, the
record supports the district court’s determination that there was no genuine issue of
material fact that would have negated the showing of a substantial connection
between the property and the offense, and that the district court did not err in
granting the government’s motion for summary judgment. See Celotex, 477 U.S.
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at 322, 106 S.Ct. at 2552; Four Parcels of Real Property, 941 F.2d at 1438-39.1
As to Slate’s challenge to Duralia’s affidavit on hearsay grounds, we hold
that there was no error to the extent that the district court based its determination
on Duralia’s affidavit that recounted allegations by the CS. Even if the statements
were hearsay, the court was entitled to consider them. See Four Parcels of Real
Property, 941 F.2d at 1440.
AFFIRMED.
1
Because the sale and seizure of drugs and Slate’s post-Miranda admissions occurred
after Slate assumed ownership of the property, we deny his claim that the district court
improperly relied on facts occurring before he assumed ownership.
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