United States v. Gass

United States Court of Appeals
For the First Circuit
No. 00-1665

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

REAL PROPERTY, BUILDINGS, APPURTENANCES AND IMPROVEMENTS
LOCATED AT 221 DANA AVENUE, HYDE PARK, MASSACHUSETTS,

Defendant, Appellant,

and

KATHLEEN GASS,

Claimant, Appellant,

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Boudin, Chief Judge,
Lynch and Lipez, Circuit Judges.

Brian M. McMahon for claimant-appellant.
 Jennifer Hay Zacks, Assistant United States
Attorney, with whom James B. Farmer, United States Attorney,
and Suzanne E. Durrell, Nancy Rue, and Shelbey Wright,
Assistant United States Attorneys, were on brief, for
appellee.

August 17, 2001

-3-
 LYNCH, Circuit Judge. Kathleen Gass seeks to stop the

government from seizing her family home at 221 Dana Avenue, in

Hyde Park, Massachusetts. The government seeks to take the

property by forfeiture because Kathleen Gass' late husband,

William Gass, used a portion of it for his side business as a

drug dealer, unbeknownst to his wife and child. Mrs. Gass first

learned her husband had used the ground floor apartment for

cocaine deals on the day the government arrested him and raided

the property. Mr. Gass, in whose name the house stood, made out

a will eleven days after the raid and left Kathleen Gass the

house. Ten days later, he committed suicide.

The government then started forfeiture proceedings to

seize the marital home. At the close of evidence, the district

court granted the government's motion for a directed verdict and

denied Kathleen Gass' motion for entry of judgment. The court

concluded that Kathleen Gass was not entitled to assert the

"innocent owner" defense under the former federal civil

forfeiture statute, see 21 U.S.C.A. § 881(a)(7) (1999) (amended

2000),1 reasoning that she did not possess an ownership interest

1 The new statute, the Civil Asset Forfeiture Reform Act of
2000, applies only to those forfeiture proceedings "commenced on or
after [August 23, 2000]." See Pub. L. No. 106-185, § 21, 114 Stat. 202,

-2-
in the property until after she had learned that the property

had been used for drug dealing and that precluded assertion of

the defense. The court also concluded that forfeiture of the

property did not constitute an excessive fine under the Eighth

Amendment to the Constitution. Mrs. Gass appealed.

In that appeal, this court issued an opinion on

February 6, 2001, vacating the decision of the district court and

directed dismissal of the government’s forfeiture case with prejudice

on the ground that claimant had satisfied the requirements of the

innocent owner defense . That opinion was reported at United

States v. Real Property, Buildings, Appurtenances and

Improvements Located at 221 Dana Ave., 239 F.3d 78 (1st Cir.

2001), and has been withdrawn as a consequence of the panel's

grant of rehearing on the government's petition. That opinion

held that (i) claimant had a protectable interest as to one-

third of the property under the dower provisions of

Massachusetts law before she knew of her husband's criminal

activities and (ii) the policies underlying the federal civil

225, 18 U.S.C. § 983, historical and statutory notes (U.S.C.A. Supp.
2000). The forfeiture proceeding here was commenced on February 3,
1998, and so this Act, which substitutes a revised innocent owner
defense, does not apply.

-3-
forfeiture statute did not support forfeiture of the remaining

two-thirds interest in the home. In its petition for rehearing,

the government argued that claimant had no cognizable property

interest under Massachusetts law before she knew her husband was

dealing drugs, and, even assuming she had a one-third interest

in the property under state law, that was no basis for blocking

the forfeiture of the remaining two-thirds interest in which she

had no property right. Further briefing was ordered by the

court and duly provided by the parties, and oral argument was

held on August 1, 2001.

This court now holds that, under the statute's innocent

owner defense, the Gass home at 221 Dana Avenue is not subject

to forfeiture. The court thus again vacates the decision of the

district court and directs dismissal of the government’s forfeiture

action with prejudice. Our decision does not reach the question of

claimant's ownership interest under state law but accepts arguendo the

government's argument that Mrs. Gass acquired her interest in the house

after the illegal acts and holds that the federal civil forfeiture

statute, as it then stood, does not apply to her as an innocent owner.

I.

-4-
 The facts are undisputed. On February 5, 1990, William

Gass purchased the property at 221 Dana Avenue, in Hyde Park,

Massachusetts. The deed was issued solely in his name.

Kathleen Gass has lived at the property with William Gass since

1990, and currently resides there, along with the couple's son,

Cedric Gass, who is less than ten years old. William and

Kathleen Gass were married on January 8, 1995; William did not

then convey an interest in the property to Mrs. Gass. For the

past decade, Mrs. Gass has worked as an accountant for the

Department of Housing and Urban Development, where she earns

approximately $30,000 per year. Although she did not contribute

money towards the purchase price of the home or to mortgage

payments made before or during her marriage to William Gass,

Kathleen Gass consistently contributed to other essential

financial needs of the household, including food and clothing.

Moreover, since her husband's suicide on January 29, 1998, Mrs.

Gass has made the mortgage payments on the property and has made

improvements to the property.

Mr. Gass operated a taxi cab business out of the home.

The office for the business was located in a separate apartment

on the first floor. The second floor apartment served as the

-5-
family home. Mrs. Gass rarely entered the first floor area, and

did not even have a key to her husband's office.

In early 1997, the Drug Enforcement Agency and United

States Customs Service started an investigation of William Gass

for suspected cocaine distribution. In 1997, the agents, with

the assistance of a confidential informant, arranged several

controlled drug buys from Mr. Gass at the property. On January

8, 1998, Mr. Gass was arrested and charged with cocaine

distribution. Later that day, agents executed a search warrant

on the property. Mr. Gass confessed and accompanied the agents

to the property, where he retrieved and turned over to agents

490 grams of cocaine and $59,000. Agents also found a white

bucket and scale which had been used, according to the

confidential informant, to weigh the cocaine. The search was

the first time Mrs. Gass became aware of her husband's cocaine

distribution activities.

On January 19, 1998, William Gass executed a will

devising all of his property to his wife. On January 29, 1998,

he committed suicide at the property.

The government filed a complaint for forfeiture of the

property on February 3, 1998. On February 4, 1998, the district

-6-
court found that probable cause existed to believe the property

was subject to forfeiture, and a monition issued.2 Kathleen Gass

was appointed executrix of her husband's will on June 28, 1998.

A jury trial on the forfeiture action started on

October 18, 1999. At the close of evidence, the government

moved for a directed verdict pursuant to Fed. R. Civ. P. 50.

Claimant Kathleen Gass moved for entry of judgment pursuant to

Fed. R. Civ. P. 58. Over claimant's objection, the district

court dismissed the jury since there were no factual disputes to

resolve, and ordered additional briefing. On January 3, 2000,

the court granted the government's motion for a directed verdict

and denied claimant's motion for entry of judgment.

2 In a civil forfeiture case, the government must first
establish probable cause to believe that a nexus existed between
the property and specified illegal activity sufficient to
justify forfeiture. This shifts the burden to the claimant, who
must refute the government's prima facie case either (1) by
demonstrating that the property was not in fact used for the
specified illegal activity or (2) by proving that she (the
claimant) did not know about or consent to the illicit activity.
See, e.g., United States v. 15 Bosworth St., 236 F.3d 50, 54
(1st Cir. 2001); United States v. Cunan, 156 F.3d 110, 116 n.7
(1st Cir. 1998) (internal citations omitted). The second of
these avenues is commonly called the "innocent owner" defense,
and it must be established by a preponderance of the evidence.
See 15 Bosworth St., 236 F.3d at 54.

-7-
 The court rejected both of claimant's central

arguments: (1) that she was an "innocent owner" under 21

U.S.C.A. § 881(a)(7) (1999) (amended 2000); and (2) that

forfeiture of the property would constitute an excessive fine in

violation of the Eighth Amendment. See United States v. Real

Property, Buildings, Appurtenances and Improvements Located at

221 Dana Ave., 81 F. Supp. 2d 182 (D. Mass. 2000). As to the

"innocent owner" defense, the court held that claimant could not

prevail because, although entirely unaware of the illegal

activities when they were occurring, she nonetheless knew of the

property's tainted character before obtaining an ownership

interest in it following her husband's death. Id. at 189. The

district court rejected all of claimant's arguments that, as a

spouse and/or heir, she had a protectable state law ownership

interest for purposes of the innocent owner defense to federal

forfeiture. Id. at 186-89. As to claimant's Eighth Amendment

argument, the district court concluded that the fine was not

excessive because the harshness of the forfeiture, although

significant, was outweighed by, inter alia, the seriousness of

her husband's offense, the lengthy sentence and fine he could

-8-
have received, and the close relationship between the property

and the offense. Id. at 191-92.

On appeal, this court originally held that claimant had

a protectable interest in at least one-third of the home under

the dower provisions in Massachusetts law, see 221 Dana Ave.,

239 F.3d at 88,3 and that forfeiture, on these facts, would not

serve any congressional purpose behind the statute, see id. at

89. Accordingly, the court vacated the district court's

decision and directed dismissal of the government's forfeiture

case.

The government filed a petition for rehearing, which

this court granted. The government argued that claimant's dower

interest did not constitute a protectable ownership interest for

purposes of the innocent owner defense and, even assuming it

did, there was still no basis for precluding forfeiture of the

remaining two-thirds interest. The court again concludes that

the district court erred in rejecting claimant's innocent owner

3 Massachusetts law provides that a surviving spouse may
elect to receive a life estate in one-third of all real property
owned by the deceased spouse at the time of death. See Mass.
Gen. Laws ch. 189, § 1; see also Opinion of the Justices, 151
N.E.2d 475 (Mass. 1958).

-9-
defense. We now base our decision solely on the language of and

policies behind the former federal civil forfeiture statute, and

do not reach the state dower interest issue.

II.

We review de novo the grant of a Fed. R. Civ. P. 50(a) motion

for judgment as a matter of law, using the same standards as the

district court. E.g., Russo v. Baxter Healthcare Corp., 140 F.3d 6, 8

(1st Cir. 1998). The evidence and inferences drawn from the evidence

are considered in the light most favorable to the non-moving party

(here, the claimant), drawing all reasonable inferences in that party's

favor. Id.; Collazo-Santiago v. Toyota Motor Corp., 149 F.3d 23, 26

(1st Cir. 1998).

III.

In 1970, Congress enacted the Comprehensive Drug Abuse

Prevention and Control Act to authorize the forfeiture of illegal drugs

as well as the instruments by which they were manufactured and

distributed. Pub. L. No. 91-513, § 511(a), 84 Stat. 1236, 1276. In

1978, Congress amended the Act. It expanded government power to

forfeit by authorizing forfeiture of the proceeds of illegal drug

sales. It contracted government power by recognizing an innocent owner

defense both as to the property used and as to the proceeds. See

United States v. 92 Buena Vista Ave., 507 U.S. 111, 121-23 & n.17.

-10-
(1993). In 1984, Congress further expanded civil forfeiture to

reach all real property used in violation of the statute, and

added an innocent owner defense to cover these situations. Pub.

L. No. 98-473, 98 Stat. 1837, 2050 (1984). There was little

definitional help in the civil forfeiture statute as to who was an

innocent owner, and the courts offered varied definitions. This

definitional void has been largely filled by the enactment of the Civil

Asset Forfeiture Reform Act of 2000. Pub. L. No. 106-185, § 21, 114

Stat. 202, 202-10, 18 U.S.C. § 983. Our case, however, involves that

void and the specific issue of how to treat the innocent owner defense

in the context of a post-illegal act transfer, assuming (in the

government's favor), that such transfer is involved here.

The government has approached this case as though the outcome

of forfeiture of post-illegal act transferred property turns simply on

when the transferee obtained knowledge of the crime. This leads to

opposite results in two different situations: where the post-illegal

act transferee acquires an ownership interest in the property used for

the crime prior to obtaining knowledge of the offense, the government

says, the transferee is an innocent owner, but where the post-illegal

act transferee's ownership interest is acquired after knowledge of the

offense, the property is subject to forfeiture. For the government,

the only relevant dividing line is when the knowledge is obtained.

-11-
Although a transferee, here a spouse, may be equally blameless and

unable to prevent the property from being used for crime in both

situations, according to the government, the spouse who has property

conveyed to her the day before she learns of the crime is protected

from forfeiture but the spouse who has property conveyed to her the day

after she learns of the crime loses her home. And so, the government

says, if one accepts that Mrs. Gass had no ownership interest until

after she learned of her husband's crime, this is an easy case and her

home is forfeit. For purposes of this analysis, we will assume

arguendo that Mrs. Gass is a post-illegal act transferee.

The underlying analytical difficulty in this case is that the

version of the forfeiture statute that applies here was drafted to

solve a different problem than the one before us. Congress drafted the

forfeiture statute -- and the associated innocent owner provision --

without apparent thought about many of the permutations relating to

changes in ownership after the commission of an illegal act. Its main

concern in the innocent owner situation was to protect those whose

then-currently owned property was used in a drug transaction without

the owner's knowledge. The pertinent language is as follows:

All real property, including any right, title,
and interest (including any leasehold interest)
in the whole of any lot or 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 subchapter punishable by more

-12-
 than one year's imprisonment, except that no
property shall be forfeited under this paragraph,
to the extent of an interest of an owner, by
reason of any act or omission established by that
owner to have been committed or omitted without
the knowledge or consent of that owner.

21 U.S.C.A. § 881(a)(7) (1999) (amended 2000).4

The legislative history suggests that Congress had little

reason to even consider the issue of an innocent owner in post-illegal

act transfers when enacting section 881(a)(7). See S. Rep. No. 225,

98th Cong. 196 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3379, 3398.

This is so because prior to the Supreme Court's decision in United

States v. 92 Buena Vista Avenue, 507 U.S. 111 (1993), it was generally

believed that title to forfeited property vested in the United States

at the time of the illegal act. See, e.g., Eggleston v. Colorado, 873

F.2d 242, 248 (10th Cir. 1989), cert. denied, 493 U.S. 1070 (1990). So

before 92 Buena Vista Avenue, no one who received the property after

the commission of the illegal act could have asserted an innocent owner

defense because the property would have been forfeited as of the date

that act was committed. It might then be easy to say Congress did not

intend to protect any after-acquired interest. But that conclusion is

inconsistent with how the Supreme Court has approached the statute. In

4 The Civil Asset Forfeiture Reform Act of 2000 eliminated the
former innocent owner defense from the drug forfeiture provisions
contained at 21 U.S.C. § 881(a)(4)(6), and (7), and created a new,
general innocent owner defense to federal civil forfeiture proceedings.
See Pub. L. No. 106-185, § 21, 114 Stat. 202, 202-10.

-13-
92 Buena Vista Avenue, the Court held that, for purposes of the

relation back doctrine, the government does not become the owner of

property before forfeiture has been decreed, and someone who acquires

an ownership interest after the illegal acts have occurred may

therefore still assert the innocent owner defense. 507 U.S. at 123-29.

Thus, ignoring for a moment later caselaw, the statute's

original aim seemingly was to address situations where property is, at

the time of the criminal activity, already owned in whole or part by

another, the "innocent" party (for example, a wife who is a tenant by

the entirety with a drug-dealing husband). Congress wanted to protect

such an innocent owner of real property "to the extent of that owner's

interest"5 if, unbeknownst to that owner, a co-owner (or non-owner) used

the same real property in the course of committing a crime. In this

context, it makes sense, in deciding whether the innocent owner

exception should apply, to inquire whether the soi-disant innocent

owner knew of the drug dealer's criminal activity at the time the crime

occurred.

But cases in which the "innocent" party only later gains an

ownership interest pose a very different set of problems. Moreover,

these problems may have different possible solutions depending on the

5 Congress has instructed us that "[t]he term 'owner' should
be broadly interpreted to include any person with a recognizable legal
or equitable interest in the property seized." Joint Explanatory
Statement of Titles II and III, Pub. L. No. 95-633, 95th Cong. 2d Sess.
(Oct. 7, 1978), reprinted in 1978 U.S.C.C.A.N. 9496, 9518, 9522.

-14-
kind of transfer that resulted in the change of ownership. In turn,

numerous policy arguments can be brought to bear on either side of each

of these difficult questions. Thus we are left to construct imperfect

solutions to an imperfect statute.

One approach would be to draw a distinction, as with

negotiable instruments, between good faith purchasers for value and

gratuitous transferees. In addition, it would be a practical and

straightforward method of determining whether a subsequent owner had a

protected interest in property: a gratuitous transferee would have no

protection against a pre-transfer crime for which forfeiture was

appropriate and a bona fide purchaser for value would not face

forfeiture as long as she had made the purchase in good faith.

Congress adopted this approach in part in the new statute enacted after

our case. See 18 U.S.C. § 983(d)(3)(A)(i).

A second approach -- and the one which the government urges

us to adopt -- would be to rely solely on the timing of the new owner's

knowledge of the illegal act. Consonantly, several circuits have

precluded an innocent owner defense when the transferee has knowledge

of the prior owner's illegal acts at the time of the transfer. E.g.,

United States v. 6640 SW 48th St., 41 F.3d 1448, 1452 (11th Cir. 1995);

United States v. 10936 Oak Run Circle, 9 F.3d 74, 76 (9th Cir. 1993).

One circuit has disagreed, concluding that a person may assert an

innocent owner defense if she was innocent at the time the acts were

-15-
committed, regardless whether she knew about the acts at the time of

the transfer. See United States v. One 1973 Rolls Royce, 43 F.3d 794,

800 (3rd Cir. 1994). We note that the government's argument in this

case provides no protection for a good faith purchaser for value where

the purchaser has knowledge of the property being used for the crime.

Although the government's interpretation finds no support in

section 881's language, it has been adopted by courts to avoid

undermining deterrence. 6640 SW 48th St., 41 F.3d at 1452-53.

However, to say that a transferee is an innocent owner if she learns of

the crime immediately after the transfer but is not if she learns of

the crime immediately before is, from a deterrence perspective,

irrational.6 The timing of the transferee's knowledge simply does not

affect significantly the degree to which forfeiture acts as a deterrent

to the crimes themselves. Indeed, on the government's view of the

statute, Mrs. Gass would be an innocent owner if her husband had simply

transferred the property to her prior to his arrest even though his

doing so would have had no deterrent effect on his actual crimes.

The government says that rejecting its position and allowing

Mrs. Gass to retain the property will greatly undermine the deterrent

6 Moreover, the legislative history to the recent Civil Asset
Forfeiture Reform Act expressly cites the suicide of the wrongdoer as
an example of where the deterrent interest would not be served. See
H.R. Rep. No. 106-192, 1999 WL 406892, at *16 (June 18, 1999) ("It is
hardly likely that many criminals will commit suicide for the express
purpose of foiling imminent seizures by having their property devolved
to their heirs.").

-16-
effect of forfeiture. But any position that permits a post-illegal act

transferee (even a good faith purchaser) to retain property will, to

some degree, undermine deterrence. In this sense, the question is not

whether permitting some post-illegal act transfers will reduce

deterrence: it will to some extent, at least in theory. Rather, the

question is how deterrence will be affected by permitting the innocent

owner defense in the case of a transferee who learns of the crime

immediately after the transfer, but prohibiting the defense when the

transferee learns of the crime immediately before the transfer. There

remains no principled reason why the timing of the transferee's

knowledge should matter. Under the government's reading of the

forfeiture statute, even a bona fide purchaser who knew nothing about

the crimes when they occurred would not be an innocent owner if she

knew the property had been used in connection with drug crimes when she

acquired it. Indeed, such a rule would give defendants an incentive to

engage in property transfers of instrumentalities to innocent parties

before they are caught to evade the serious risk of forfeiture.

The government also points to the section of the old

forfeiture statute authorizing forfeiture of "all proceeds traceable"

to an illegal drug transaction. 21 U.S.C.A. § 881(a)(6) (amended

2000). The proceeds provision contains an identical innocent owner

defense to that contained in the section authorizing forfeiture of real

property used as an instrumentality in an illegal drug transaction, see

-17-
id. § 881(a)(7), the section at issue in this case. The government

argues that because Congress would never have allowed a post-illegal

act transfer of proceeds under section 881(a)(6) in light of its impact

on deterrence, and because like provisions in like statutes are to be

interpreted in like manner, Congress therefore never meant to allow

post-illegal act transfers of real property under section 881(a)(7).

This argument adds nothing to the problem that concerns us:

whether Congress had any intention one way or the other as to how an

innocent owner defense would work with respect to post-illegal act

transfers at all, and how to factor in 92 Buena Vista Avenue. Further,

we are concerned here not with proceeds but with property used in

furtherance of the crime, and that undercuts the government's position.

There are reasons to treat such property differently than mere

proceeds. As to such property, there may be an opportunity for a

current owner to prevent its use for criminal activity,7 unlike the

situation of proceeds. It thus makes more sense to assess innocence in

light of whether there was an opportunity, untaken, to prevent the use

of such property for a crime.

7 Indeed, the new forfeiture statute explicitly
recognizes this possibility by distinguishing between present
owners and post-illegal act transferees, and making available
the innocent owner defense to a present owner who, "upon
learning of the conduct giving rise to the forfeiture, did all
that reasonably could be expected under the circumstances to
terminate such use of the property." 18 U.S.C. § 983(d)(2)(A).

-18-
 If we were writing on a blank state, arguably the best

judicial gloss would reject an innocent owner defense for a

post-illegal act gratuitous transferee (which the government claims is

Mrs. Gass' status8). But, given that such a position only garnered

three votes in 92 Buena Vista Avenue, 507 U.S. at 139-40 (Kennedy, J.,

dissenting), this is not an option. An alternative -- which is

permissible under 92 Buena Vista Avenue -- is to adopt the most literal

reading of section 881: testing the later owner's innocence at the time

of the original owner's illegal acts. On this reading, which is the

reading we adopt here, Mrs. Gass is an innocent owner because she did

not have knowledge of, or consent to, Mr. Gass' criminal activity at

the time the activity occurred.9

Admittedly, such a reading probably does not reflect

congressional intent one way or the other because seemingly Congress

had no intent at the time as to how courts should solve the problem we

8 Whether an innocent spouse who is bequeathed the
marital home by will from the other spouse is a "gratuitous
transferee" is itself questionable.
9 Cf. 92 Buena Vista Ave., 507 U.S. at 139 (Scalia, J.,
concurring) (suggesting that it would not be absurd to think
that post-illegal act transferees who knew about the illegal act
creating the taint at the time of transfer, but not at the time
the act occurred, were beyond the reach of the forfeiture
statute); One 1973 Rolls Royce, 43 F.3d at 819 ("[I]f [claimant] can
show that he did not know that the [property] was being used or going
to be used [in connection with the illegal transactions] at the time
they took place, then he will be able to show that he did not consent
to the use and . . . will be entitled to the innocent owner defense.").

-19-
now face;10 but fidelity to literal language is still worth something.

True, such an approach may marginally reduce the deterrent effect of

the forfeiture statute. However, the government's position does much

the same thing, and it includes an entirely arbitrary cutoff point --

namely, the transferee's knowledge of the criminal acts. In any event,

the new statute does address Mrs. Gass' problem with a tailor-made test

of its own, so how we solve the problem before us has little

implication for the future. See Civil Asset Forfeiture Reform Act of

2000, Pub. L. No. 106-185, 114 Stat. 202, 18 U.S.C. § 983 (U.S.C.A.

Supp. 2000).

We are also mindful of the well established rule that federal

forfeiture statutes must be narrowly construed because of their

potentially draconian effect. See, e.g., 92 Buena Vista Ave., 507 U.S.

at 122-23; United States v. One 1980 Red Ferrari, 875 F.2d 186, 188

(8th Cir. 1989); see also United States v. One 1936 Model Ford V-8

DeLuxe Coach, 307 U.S. 219, 226 (1939); United States v. $191,910.00 in

U.S. Currency, 16 F.3d 1051, 1068 (9th Cir. 1994); United States v. One

1976 Mercedes Benz 280S, 618 F.2d 453, 454 (7th Cir. 1980). Indeed,

10 We note, however, that Congress' decision to add, inter
alia, section 881(a)(7) to the forfeiture scheme signaled "a
dramatic expansion of the government's forfeiture power" by
giving the government authority to seize property that by all
appearances was legitimate, and not merely the illegal
substances themselves and the instruments by which they were
manufactured and distributed. One 1973 Rolls Royce, 43 F.3d at 799.

-20-
the possibility of interpreting the forfeiture statute to promote some

ideal of absolute deterrence, regardless of the harshness of individual

outcomes, has been foreclosed by 92 Buena Vista Avenue. See 507 U.S.

at 124 ("Because neither the money nor the house could have constituted

forfeitable proceeds until after an illegal transaction occurred, the

Government's submission would effectively eliminate the innocent owner

defense in almost every imaginable case in which the proceeds could be

forfeited. It seems unlikely that Congress would create a meaningless

defense.").

The new civil forfeiture statute likewise does not show that

Congress had any such intent of enacting a principle of absolute

deterrence at least with respect to those who acquired their interest

after the conduct giving rise to the forfeiture has taken place.

Rather, the new statute provides an innocent owner defense for bona

fide purchasers or sellers for value, id. § 983(d)(3)(A), and for

spouses and legal dependents who use the property as a primary

residence and rely on it as a basis for shelter in the community, id.

§ 983(d)(3)(B).

Finally, we leave open the likelihood under the old statute,

as the plurality opinion in 92 Buena Vista Avenue did, that in some

circumstances equitable principles may preclude an innocent owner

defense. 92 Buena Vista Ave., 507 U.S. at 129-30; see also 10936 Oak

Run Circle, 9 F.3d at 76; cf. Bennis v. Michigan, 516 U.S. 442, 457

-21-
(1996) (Ginsburg, J., concurring). For example, if the government

produced convincing evidence that the post-illegal act transferee

conspired with the other owner to avoid the forfeiture of property,

then a court might refuse to permit the innocent owner defense.

Although this possibility should be noted for future cases, here the

government has not argued that any such evidence exists.11

IV.

The court vacates the judgment of the district court and

directs dismissal of the government’s forfeiture action with

prejudice.12

So ordered.

11 In its petition for rehearing, the government requested
that this court take judicial notice of factual information,
never presented to the district court, which allegedly shows
substantial assets other than the home at 221 Dana Avenue left
to Mrs. Gass by her husband. Claimant has moved to strike the
evidence, and, inter alia, contests its accuracy. We treat the
motion as moot, in light of the grounds for our decision.
12 Because we decide the case under the former forfeiture
statute, we do not reach claimant's constitutional arguments.

-22-