United States v. Willingham ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
N. JEROME WILLINGHAM, Administrator
of the estate of Nelson T. Hopkins,
deceased,
Claimant-Appellant,
and
ONE TRACT OF REAL PROPERTY WITH
BUILDINGS, APPURTENANCES AND
IMPROVEMENTS, LOCATED IN
JACKSONVILLE, ONSLOW COUNTY, NORTH
No. 97-1191
CAROLINA,AND BEING MORE
PARTICULARLY DESCRIBED IN DEED
RECORDED IN BOOK 282, PAGE 106, of
the Onslow County Registry, being
titled in the names of Nelson T.
Hopkins, James M. Hopkins, Obie
Hopkins, Rasa Lee Hopkins and
Varnell Hopkins Warren, and any and
all proceeds from the sale of said
properties,
Defendant,
OBIE HOPKINS; ALVIN MORRIS; VARNELL
HOPKINS WARREN,
Claimants.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, Senior District Judge.
(CA-94-123-7-BR3)
Argued: March 5, 1998
Decided: April 14, 1998
Before LUTTIG and WILLIAMS, Circuit Judges, and CLARKE,
Senior United States District Judge for the
Eastern District of Virginia, sitting by designation.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Dolores Jones Faison, Jacksonville, North Carolina, for
Appellant. Stephen Aubrey West, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee. ON BRIEF: Janice McKenzie
Cole, United States Attorney, Anne M. Hayes, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Jerome Willingham, the administrator of the estate of Nelson Hop-
kins, appeals the district court's grant of summary judgment for the
government on its civil forfeiture claim brought against certain real
property previously owned, in part, by Hopkins. For the reasons
stated herein, we affirm.
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I.
This controversy began when the United States filed a complaint
for the civil forfeiture of a building ("the Hopkins building") in Jack-
sonville, North Carolina. This building, which houses a convenience
store and a restaurant on the first floor, and apartments on the upper
floor, was owned by several persons, including Nelson Hopkins.1 The
government filed with its complaint an affidavit ("the Ackley affida-
vit"), which alleged that the Hopkins building was a major center of
drug-related and other criminal activities in the downtown Jackson-
ville area.
After an ex parte review of the government's complaint and affida-
vit, a district court found probable cause and issued a warrant autho-
rizing the government to arrest the property and search the premises,
but not to take physical possession of the property until the owners
were provided with notice of the action and an opportunity to be
heard. In compliance with the warrant, the government searched the
building -- discovering 59 grams of crack cocaine and arresting Hop-
kins' grandson and another individual in the process, J.A. at 64-66;
served the warrant on the owners of the building; and posted a copy
of the warrant on the property. The warrant apprised the building's
owners that they had a right to a hearing.
Nelson Hopkins responded by requesting such a hearing. The mag-
istrate judge who conducted the hearing understood such a pre-seizure
hearing to be required under Supreme Court precedent, but believed
the scope of that hearing limited to whether probable cause existed to
believe the Hopkins building had been used or intended to be used to
violate the federal drug laws. At the hearing, accordingly, the magis-
trate allowed Hopkins, through counsel, to cross-examine Special
Agent Ackley, who had sworn out the government's affidavit, and
otherwise to contest probable cause, but did not allow Hopkins to
introduce evidence offered to establish that he did not know of, or
consent to, the unlawful use of his property. The magistrate believed
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1 Because the other owners have ultimately either waived their rights
to contest the government's actions, or been recognized by the govern-
ment as innocent owners with protected interests, this opinion discusses
only the facts relevant to Hopkins' interest in the property.
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that consideration of this question was unnecessary prior to seizure,
and could be deferred until the forfeiture adjudication. After the hear-
ing, the magistrate found the government had probable cause to seize
the Hopkins building, and directed the marshals to do so.
Subsequently, the government moved for summary judgment on its
foreclosure claim, relying in support of its motion primarily on the
Ackley affidavit. Hopkins' estate2 responded by attorney, and the
government issued a reply. Shortly thereafter, Hopkins' attorney, who
had been disbarred for misconduct apparently unrelated to this case,
was ordered not to make further submissions in the case. Thereupon
Hopkins' presumptive heirs filed notice of their intent to represent
themselves in the action. The heirs explicitly "adopt[ed] all of the
documents and positions filed and offered by [the previous attorney]."
J.A. at 171. The district court then granted summary judgment for the
government, the estate obtained a new lawyer, and this appeal fol-
lowed.
II.
This case is controlled by binding circuit precedent. As that prece-
dent makes clear,
[i]n a civil forfeiture proceeding the government must show
probable cause that the property is subject to forfeiture.
Once the government has made this showing, the burden
shifts to the claimant to prove by a preponderance of the
evidence that the factual predicates for forfeiture have not
been met. The claimant must prove that the property was not
unlawfully used or that he did not know about or consent to
the illegal use. If the claimant cannot produce any such evi-
dence, summary judgment is properly granted to the govern-
ment based on its showing of probable cause.
United States v. 7715 Betsy Bruce Lane , 906 F.2d 110, 111 (4th Cir.
1990). Here, as the appellant properly conceded at oral argument, the
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2 Nelson Hopkins died during the course of the proceedings, and was
replaced as a party by Jerome Willingham, the administrator of Hopkins'
estate.
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government has introduced overwhelming evidence of probable
cause. The Ackley affidavit included:
(1) notes from interviews with three drug convicts who had
each (a) sold drugs inside the building, just outside the
building, or both, (b) observed others buying and selling
cocaine inside the building, just outside the building, or
both, (c) stored cocaine or seen others store cocaine inside
the building, and (d) perhaps most importantly, conducted
drug deals or seen drug deals conducted openly in front of
Hopkins;
(2) a review of 202 criminal reports on file with the city
police department relating to incidents inside or immedi-
ately outside the Hopkins building over a four-and-a-half
year period, indicating (a) that on 180 instances, the crimi-
nal activity was drug related, (b) that drugs were found in
83 instances, (c) that undercover officers or informants pur-
chased drugs in 65 instances, (d) that on 29 occasions the
criminal activity involved Nelson Hopkins and other family
members, and (e) that the activity resulted in 169 arrests;
(3) information that a previous search of the Hopkins build-
ing had discovered five grams of cocaine, plastic baggies
containing cocaine residue, and several firearms within an
18 inch vicinity of the cocaine, and that as a result of this
search Hopkins was convicted of manufacture and posses-
sion of cocaine under North Carolina law, resulting in a sus-
pended sentence and fine;
(4) reports that four detectives had each (a) observed activ-
ity consistent with drug trafficking in the Hopkins building,
(b) observed drugs and drug paraphernalia inside and imme-
diately outside the building, and (3) received information
that Hopkins was involved in the drug trafficking inside the
building;
(5) reports that while the building purported to contain a res-
taurant, much of the food kept in the building was unfit for
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consumption, possibly suggesting that the restaurant was a
sham; and
(6) miscellaneous other information from various narcotics
investigations and confidential sources indicating that the
center of cocaine distribution in downtown Jacksonville was
located in and around the Hopkins building.
See generally J.A. at 23-32 (affidavit); id. at 182-85 (district court
describing affidavit).
Given that the government had clearly established probable cause,
the burden was on the Hopkins heirs to present evidence from which
a jury could find, by a preponderance of evidence, either that the
property had not been unlawfully used, or that Hopkins had not
known about, or consented to, the illegal use. In attempt to meet this
burden, the Hopkins heirs introduced (1) a statement by Hopkins' for-
mer lawyer asserting that Hopkins had always, prior to his death,
maintained his innocence, had not assisted the use of his building for
drug dealing, and had entered an "Alford Plea" in response to the state
drug charge discussed above, J.A. at 161-62; (2) a bare assertion of
innocent ownership made by Hopkins in response to an interrogatory,
J.A. at 163; (3) sworn statements by two of the three drug dealers
cited in the Ackley affidavit substantially undermining their state-
ments to Ackley, J.A. at 165-66; and (4) an unsworn statement from
another individual stating inter alia that Hopkins had a poor memory,
that that individual had never seen Hopkins sell or assist anyone sell-
ing drugs, and that Hopkins had not, to that individual's knowledge,
authorized anyone to sell any drugs. J.A. at 167.
As the appellant essentially conceded at oral argument, even if
credited entirely, these submissions do not support even an inference
that the property was not unlawfully used. And, especially given that
the burden of proof is on the defendant-appellant, they are also insuf-
ficient to support a jury finding of innocent ownership. The bare
assertions of innocent ownership by the lawyer and Hopkins are not
entitled to any weight at all. And while the statements by the two drug
convicts might be entitled to some weight, even if these statements
are credited in their entirety, the affidavit still contains ample uncon-
tradicted evidence that Hopkins knew of, and perhaps participated in,
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the illegal activities at the building; this uncontradicted evidence is
more than sufficient to prevent a reasonable jury from finding inno-
cent ownership.
III.
Probably realizing the inadequacy of the evidence introduced at the
forfeiture stage of the proceedings in response to the government's
motion for summary judgment, the appellant argues primarily that we
should reverse the district court's grant of summary judgment because
of alleged errors that occurred at earlier stages of the proceedings. In
particular, the appellant argues that under United States v. James
Daniel Good Real Property, 510 U.S. 43 (1993), Hopkins was denied
due process when the magistrate refused to allow him to introduce
evidence of innocent ownership at the probable cause hearing prior to
seizure. See id. at 53-56. Even if erroneous, however, the magistrate's
exclusion of Hopkins' evidence at the pre-seizure proceedings in no
way prevented the Hopkins heirs from introducing the same or similar
evidence in response to the government's motion for summary judg-
ment at the subsequent forfeiture proceedings. For precisely this rea-
son, this court has held that "a Good-violative seizure does not
immunize the property from forfeiture." United States v. Marsh, 105
F.3d 927, 931 (1997). Rather, the remedy for a Good violation is that
"the government must account for the profits or rent which it denied
the claimant during the period of illegal seizure." Id. Here, because
any Good violations that may have occurred at the pre-seizure hearing
would not constitute grounds for reversing the grant of forfeiture, and
because neither Hopkins nor his heirs has made a claim for an
accounting, we need not reach the question of whether Hopkins was
denied due process at his pre-seizure hearing.
CONCLUSION
For the reasons stated herein, we affirm the judgment of the district
court.
AFFIRMED
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