United States v. One 1973 Rolls Royce, V.I.N. SRH-16266 Ex Rel. Goodman

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit

11-25-1994

United States v. One 1973 Rolls Royce
Precedential or Non-Precedential:

Docket 93-1417

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994

Recommended Citation
"United States v. One 1973 Rolls Royce" (1994). 1994 Decisions. Paper 201.
http://digitalcommons.law.villanova.edu/thirdcircuit_1994/201

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1994 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________

NO. 93-1417
____________

UNITED STATES OF AMERICA,

Appellee
v.

ONE 1973 ROLLS ROYCE, V.I.N. SRH-16266,
(by and through Claimant Oscar B. Goodman),

Appellant
------------------------------------

NATIONAL ASSOCIATION OF CRIMINAL
DEFENSE LAWYERS,

Amicus-curiae

____________________________________

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 90-01487)
____________________________________

Argued: December 6, 1993

Before: BECKER, NYGAARD, and WEIS, Circuit Judges.

(Filed: November 25, 1994)

MICHAEL R. STILES
United States Attorney
WALTER S. BATTY, JR.
Assistant U.S. Attorney
Chief of Appeals
JOEL M. FRIEDMAN
Assistant U.S. Attorney
FRANK A. LABOR, III (ARGUED)
Assistant U.S. Attorney
615 Chestnut Street
Philadelphia, PA 19106

Attorneys for Appellee
United States of America
 DAVID CHESNOFF, ESQUIRE (ARGUED)
Goodman & Chesnoff
520 South Fourth Street
Las Vegas, Nevada 89101

STEPHEN STEIN, ESQUIRE
520 South Fourth Street
Las Vegas, Nevada 89101

ROBERT E. MURDOCK, ESQUIRE
Murdock & Palazzo
520 South Fourth Street
Las Vegas, Nevada 89101

Attorneys for Appellant
One 1973 Rolls Royce
VIN SRH-16266

PETER GOLDBERGER, ESQ. (ARGUED)
50 Rittenhouse Place
Ardmore, PA 19003-2276

Attorney for Amicus-curiae
National Association of
Criminal Defense Lawyers

__________________________

OPINION OF THE COURT
__________________________

BECKER, Circuit Judge.

I. INTRODUCTION AND OVERVIEW

The Comprehensive Drug Abuse Prevention and Control

Act, 21 U.S.C. § 881 et. seq., provides, among other things, for

civil forfeiture of illegal drug related property. Section 881

authorizes the government to seize illegal drugs, containers of

illegal drugs, records associated with illegal drugs, and other
property associated with or purchased with proceeds derived from

the distribution of illegal drugs. Section 881 has become

attractive to prosecutors because it permits them to seize

property involved in drug trafficking merely upon a showing of

probable cause that the property was used to help facilitate a

drug transaction.

Three subsections of § 881 have emerged as far-reaching

tools of the civil forfeiture scheme. Section 881(a)(4) provides

for forfeiture of "conveyances" (airplanes, automobiles, boats,

etc.) used or intended to be used to facilitate the

transportation, sale, receipt, possession, or concealment of a

controlled substance. 21 U.S.C. § 881(a)(4). Section 881(a)(6)

provides for forfeiture of "all proceeds traceable" to a drug

transaction. 21 U.S.C. § 881(a)(6). And § 881(a)(7) provides

for forfeiture of "all real property" which is used or intended

to be used to facilitate an illegal exchange of a controlled

substance. 21 U.S.C. § 881(a)(7).

Congress' decision to add §§ 881(a)(4), (6), and (7) to

the forfeiture scheme signalled a dramatic expansion of the

government's forfeiture power. Previously, forfeiture had been

limited to the illegal substances themselves and the instruments

by which they were manufactured and distributed. But §§

881(a)(4), (6) and (7) gave the government the power to seize

property that by all appearances was legitimate. This

development gave rise to the possibility that owners who had

innocently leased or loaned property to others could lose that

property in a forfeiture proceeding. For example, a landlord
might forfeit an apartment complex if a tenant was caught dealing

drugs from an apartment, or a father who had loaned his son the

family car might lose it if the son were caught transporting

drugs therein.

To ameliorate this problem, Congress engrafted an

"innocent owner" defense to forfeiture under §§ 881(a)(4), (6),

and (7). The "innocent owner" defenses under §§ (a)(6) and (7)

are the same: no owner's interest in property may be forfeited

"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. §§ 881(a)(6), (7). Congress later

added the innocent owner defense of § 881(a)(4), and it has a

slightly different formulation: no owner's interest in a

"conveyance" shall be forfeited "by reason of any act or omission

established by that owner to have been committed or omitted

without the knowledge, consent, or willful blindness of the

owner." 21 U.S.C. § 881(a)(4)(C) (emphasis supplied).

The overarching issue in this appeal is the extent to

which the "willful blindness" language found in § 881(a)(4)(C)

requires us to interpret that innocent owner defense differently

from the otherwise identical defenses in §§ 881(a)(6) and (7).

Specifically, we must first determine what constitutes "willful

blindness" as that term is used in § 881(a)(4)(C). We must then

decide whether an owner can claim innocent owner status under

(a)(4)(E) by showing that he or she lacked either knowledge or
consent or willful blindness, which, in turn, requires us to
determine the extent to which the rule in this Circuit that an
owner need only show either lack of knowledge or lack of consent

to make out the innocent owner defense in the context of §

881(a)(7), see United States v. Parcel of Real Property Known As

6109 Grubb Road, 886 F.2d 618, 623-626 (3d Cir. 1989), controls

our interpretation of the defense in the context of §

881(a)(4)(C).

This case arises out of the seizure of a Rolls Royce

automobile owned by Oscar B. Goodman, a prominent criminal

defense lawyer who represents clients throughout the country.

Nicodemo Scarfo, Sr. a former client of Goodman's (and at one

time the reputed head of the Philadelphia branch of La Cosa

Nostra ("LCN")), gave Goodman the Rolls Royce in repayment for

$16,000 that Goodman had paid to the Four Seasons Hotel in

Philadelphia to cover the cost of a lavish party given by

Scarfo's son and his friends at the hotel to celebrate Scarfo's

acquittal at a murder trial in which Goodman was one of the

defense counsel.

In 1989, the FBI seized the vehicle pursuant to §

881(a)(4). The agency contended that members of the Scarfo

family had used the Rolls Royce to shuttle people to and from

meetings conducted as part of the Scarfo LCN family's drug

distribution activities. Goodman filed a verified claim

asserting innocent ownership pursuant to § 881(a)(4)(C). Goodman

alleged that he did not know about, did not consent to, and was

not willfully blind to the car's use in drug transactions. After

a bench trial the district court rejected Goodman's innocent
owner claim and held that the Rolls Royce was subject to

forfeiture.

On appeal, Goodman raises two principal challenges to

the district court's decision. First, he contends that the

district court incorrectly held that he had failed to prove that

he lacked willful blindness. Goodman submits that, by holding

that Goodman was willfully blind because he failed to exercise

due care to ascertain whether the car had been used to facilitate

a drug transaction, the district court improperly read willful

blindness as a negligence provision. The proper standard,

Goodman argues, is not an objective "due care" standard but

rather requires a subjective inquiry, such as "deliberate

ignorance" or "conscious avoidance."

Second, Goodman claims that the district court

improperly concluded that his failure to prove lack of willful

blindness, standing alone, defeated his innocent ownership

defense. According to Goodman, he is entitled to innocent

ownership protection even if he knew or was willfully blind to

the fact that the Rolls Royce had been used to facilitate a drug

transaction so long as he shows that he did not consent to its

use therefor. He argues that our decision in 6109 Grubb Road,

886 F.2d at 618, which held that under § 881(a)(7) an innocent

owner defense would lie if the owner showed either lack of

knowledge or lack of consent, mandates such a result. He reasons

that since the innocent owner provision of § 881(a)(7) is

virtually identical to that in § 881(a)(4)(C), he was entitled to

show that, notwithstanding his willful blindness, he was an
innocent owner because he did not consent to the Rolls Royce's

use in the pre-transfer drug transactions.

Goodman's first challenge to the district court's

decision requires us to articulate the meaning of willful

blindness under § 881(a)(4)(C). Although it is not clear from

its opinion, it appears that the district court may have defined

willful blindness in terms of an objective "due care" standard,

i.e., the owner's failure to exercise due care to discover

whether the car was tainted. To the extent that the district

court applied an objective standard in determining whether

Goodman was willfully blind, it erred, for we believe that the

appropriate standard for willful blindness is the traditional

subjective standard articulated in United States v. Caminos, 770

F.2d 361, 365 (3d Cir. 1985). Under that standard, a person is

willfully blind for purposes of § 881(a)(4)(C) when he or she is

aware of a high probability that the conveyance was used to

facilitate a drug transaction but fails to take reasonable

affirmative measures to find out whether the conveyance was in

fact so used. Thus, for Goodman to escape the willful blindness

prong of § 881(a)(4)(C), he needs to show either 1) that
subjectively he did not recognize the high probability that the

vehicle was connected to a drug transaction, or 2) that he took

reasonable steps under the circumstances to learn whether the

vehicle had actually been used to facilitate a drug transaction.

Because we cannot be sure that the district court applied this

standard, we will vacate the judgment of forfeiture and remand

for reconsideration.
 Goodman's second challenge, relating to consent, raises

a number of thorny issues. Our conclusion, however, is

straightforward. We conclude that the rationale of 6109 Grubb

Road applies perforce to forfeitures under § 881(a)(4)(C), and

that Goodman will be an innocent owner notwithstanding any

knowledge or willful blindness he may have had if he did not

consent to the use of the Rolls Royce in connection with drug

transactions. Thus, assuming that Goodman can convince the

factfinder that he did not own the Rolls Royce at the time it was

used to facilitate a drug transaction, and was not otherwise in a

position to prevent such a use of the car, he will have shown

that he did not consent to its use to facilitate drug

transactions and hence will be entitled to innocent owner status.

While our conclusion on this point is simple to state,

it has far-reaching implications which raise a number of

troubling issues about 6109 Grubb Road and the wording of the

innocent owner defense in the forfeiture statutes. The 6109

Grubb Road approach essentially precludes forfeiture of property

that is owned by persons who: 1) obtained an interest in the

property after the illegal use; and 2) lacked knowledge about its

illegal use at the time the illegal use occurred. Under 6109
Grubb Road, a post-illegal-act transferee who did not know about

the act that created the taint at the time it occurred will be an

innocent owner even if he or she knew about the taint at the time

he or she received the property.

Given this result, the government asks that we decline

to extend 6109 Grubb Road to forfeitures under § 881(a)(4)(C).
But the government can point to no principled basis for

distinguishing § 881(a)(4) from § 881(a)(7) for purposes of

applying 6109 Grubb Road. Had Scarfo satisfied his debt to

Goodman by giving him a house instead of a car, the nature of the

problem would be the same, notwithstanding that the government

would need to seek forfeiture pursuant to subsection § 881(a)(7)

instead of § 881(a)(4)(C). Our comparison of the structure and

language of §§ 881(a)(4) and (7) and analysis of 6109 Grubb Road

lead us to conclude that the 6109 Grubb Road construction of the

statute applies by analogy to § 881(a)(4)(C).

While 6109 Grubb Road (which is binding on us

absent in banc reconsideration under this court's internal

operating procedures) has its detractors, see United States v.

Parcel of Real Property Known as 6109 Grubb Road, 890 F.2d 659

(3d Cir. 1989) (sur petition for rehearing) (Greenberg, J.,

dissenting), its disjunctive approach ameliorates some of the

harsh, and quite unfair, results that would occur under the

alternative to its construction, i.e., a "conjunctive"

construction requiring the owner show both a lack of knowledge

and a lack of consent. Specifically, 6109 Grubb Road allows an

owner to keep his or her property when he or she has not

consented to the illegal use by taking all reasonable affirmative

steps to prevent it. To discard the 6109 Grubb Road disjunctive

construction in favor of a conjunctive one might prevent the

problem we confront now, but it would create another one. A

conjunctive construction would deprive innocent owner status to

owners who know their property is being improperly used but are
unable to put a stop to it despite having taken all reasonable

steps to do so -- a result which could raise due process

concerns. See Calero-Toledo v. Pearson Yacht Leasing Co., 416

U.S. 663, 688-90, 94 S. Ct. 2080, 2094-95 (1974).

Although there is no discussion in 6109 Grubb Road of

the problem that the disjunctive construction creates when the

statute is applied to post-illegal-act transferees, its absence

is not surprising. At the time 6109 Grubb Road was decided, it

was presumed that a post-illegal-act transferee could never raise

the innocent owner defense because the relation back provision of

the civil forfeiture statute, 21 U.S.C. § 881(h), vested title in

the United States at the time of the illegal act, and thus a

post-illegal-act transferee could never be an owner. That

background presumption changed, however, when the Supreme Court

held in United States v. Parcel of Land, Buildings, Appurtenances

& Improvements at 92 Buena Vista Avenue, Rumson, N.J., 113 S. Ct.

1126 (1993), that § 881(h) did not deprive post-illegal-act

transferees an opportunity to raise the innocent owner defense.

In a sense, then, 92 Buena Vista Avenue, and not 6109 Grubb Road,

creates the problem we face today.

We believe that, in the wake of 92 Buena Vista Avenue,
a real ambiguity exists in the statutory language as read by 6109

Grubb Road. Because the civil forfeiture statute is punitive in

nature, we rely on the rule of lenity to resolve the ambiguity in

favor of the claimant. We understand that a countervailing maxim

requires us to construe the statute to avoid an absurd result.

But we do not think the result we reach is absurd. As we discuss
in more detail in the main body of the opinion, language in 92

Buena Vista Avenue raises considerable doubt as to whether the

forfeiture statutes are meant to reach post-illegal-act

transferees who did not know about the act causing the taint

until after it transpired.

As a matter of policy choice, it may be that the

forfeiture laws should apply differently depending on whether a

claimant obtained the property before or after the events that

created the taint, but the statute, as currently drafted, fails

to account for the differences between the two classes of

claimants. The remedy for this problem, however, should not be a

schizophrenic reading of the statutory text, for policy choices

are not for us to make. Rather, the remedy should be

Congressional action. Until then we will apply 6109 Grubb Road,

which, as we apply it today, makes the reasonable choice of

protecting post-illegal-act owners from the oppressive

application of the forfeiture laws.

II. FACTS AND PROCEDURAL HISTORY

A. The Rolls Royce, and Goodman's Knowledge of Its Use
In January 1976, Scarfo purchased the 1973 Rolls Royce

from Cream Puff Motors in Palm Beach, Florida. The purchase

price was $25,000, most of which was paid in cash, although part

was paid with a trade-in of a Lincoln Continental. Scarfo had

the car registered in Florida to Anthony Gregorio, an associate

of Scarfo who lived in Fort Lauderdale.
 Shortly after Scarfo bought the vehicle, it was used on

two occasions to facilitate drug trafficking. On the first

occasion, in early 1986, Gregorio drove Scarfo, Phillip Leonetti

(the "underboss" of the Scarfo LCN family), and some others from

Scarfo's vacation home to a nightclub in Fort Lauderdale to meet

with John DiSalvo, a drug dealer from Philadelphia involved in

trafficking phenyl-2-propanane, a raw material used to

manufacture methamphetamine. At that meeting, DiSalvo promised

to pay Scarfo $200,000 in "street taxes" so that he could operate

his drug business without interference from the Scarfo LCN

family. On the second occasion, in August 1986, Scarfo called a

meeting of his LCN family members at either his or Gregorio's

home in Fort Lauderdale. Francis Ianarella, a "capo" in the

Scarfo LCN family, came to the meeting. He flew in from

Philadelphia and Gregorio picked him up at the airport in the

Rolls Royce and drove him to a hotel. Not only was Ianarella in

Florida to attend the meeting, but he was also bringing $50,000

in "street taxes" from drug traffickers in the Philadelphia area.

The $50,000 was ultimately given to Scarfo.

By 1987, the FBI had developed enough evidence against

the Scarfo LCN organization to crack down on its activities. In

early 1987, the government initiated a series of prosecutions

relating to the Scarfo LCN family. Goodman was involved as

counsel in a number of them. In the first trial, Goodman

represented former Philadelphia City Councilman Leland Beloff,

who was accused, along with Scarfo, of engaging in a scheme to

commit extortion upon a real estate developer. See United States
v. Scarfo, 850 F.2d 1015 (3d Cir.), cert. denied, 488 U.S. 910

(1988). During that trial, Goodman cross-examined Thomas

DelGiorno -- one of the government's key cooperating witnesses --

and during that cross-examination, Goodman forced DelGiorno to

admit that the Scarfo LCN family engaged in drug trafficking.

The government contends that this cross-examination put Goodman

on notice that the Scarfo LCN family was engaged in that

activity.

Following the extortion trial, the government attacked

Scarfo's organization directly, and in 1987 indicted members of

the organization, including Scarfo, on federal drug charges.

Goodman represented Leonetti in the ensuing trial. During the

trial, DelGiorno and Nicholas Caramandi testified for the

government. DelGiorno testified at length about the Scarfo

organization's involvement in drugs. Caramandi stated that,

although the Scarfo LCN family had a rule against trafficking in

drugs, the rule was routinely broken, and that Scarfo ordered his

family members to get money from drug dealers any way they could.

A jury acquitted Scarfo, Leonetti, and a few others of the

charges.

In May 1988, the Commonwealth of Pennsylvania began its

own prosecution of Scarfo. It ultimately tried Scarfo and

Leonetti for the murder of Salvatore Testa. Testa, who had been

the boss of the Philadelphia LCN (Scarfo was his "consigliere" at

the time), had died when a bomb exploded in his house in early

1981. Goodman and his fellow defense attorneys won an acquittal

for both Scarfo and Leonetti.
 After the jury's unexpected verdict in the Testa murder

case, the defendants' attorneys, friends, and family met at the

Four Seasons Hotel in Philadelphia. A wild celebration ensued.

According to Goodman, "nothing was spared as far as expense."

For several hours "Cognac that . . . was $800 a bottle [was]

imbibed by everyone there," and "$100 bottles of champagne were

being shaken as if it was a World Series victory and splattered

all over the wall." At the end of the evening, however, no one

in Scarfo's family had the money to pay the $16,000 bill, and

when Nicodemo Scarfo, Jr. approached Goodman and asked him to

pay, Goodman agreed. Shortly after the Four Seasons party,

Goodman accepted Scarfo Jr.'s offer to repay Goodman with the

Rolls Royce and $1,500 from each of the three other attorneys

present at the party.

Eventually, the federal government convinced a grand

jury to indict Scarfo, Leonetti, and others in the Scarfo LCN

family for RICO violations. In September 1988, a two-month RICO

trial began. Goodman again represented Leonetti. This time, the

jury convicted Scarfo, Leonetti, and others of RICO violations

and underlying drug offenses. During this trial, on October 5,

1988, Gregorio endorsed the title to the Rolls Royce to Goodman.

The transfer was never recorded on state motor vehicle records.

Although it is not clear whether Gregorio delivered the title to

him, Goodman did exercise some control over the car, for on March

1, 1989 he paid $4,000 to remove counter-surveillance equipment

from the vehicle.
 In September 1989, the FBI seized the Rolls Royce.

Shortly after the seizure, Goodman came forward claiming that the

car was his. The government refused to return the car, claiming

that Goodman was not entitled to the Rolls Royce because it was

used to facilitate drug trafficking and that Goodman knew or was

at least willfully blind to that fact when he accepted the car.

The car is currently impounded in Philadelphia.

B. The District Court Opinion

Following a bench trial held on February 17, 1993, the

district court held that Goodman was not entitled to keep the

Rolls Royce. United States v. One 1973 Rolls Royce, V.I.N. SRH-

16266, 817 F. Supp. 571 (E.D. Pa. 1993). After concluding that

the government had met its burden under § 881(a)(4) to show that

there was probable cause for forfeiture,1 the court rejected

Goodman's claim that he was an innocent owner. Id. at 576.

According to the court, Goodman had failed to show that he was

not willfully blind to the use of the Rolls Royce to facilitate

drug trafficking. Id. at 576-80.2

1
. Most of the government's case was based on the testimony of
FBI Agent Randal Wolverton. He recounted statements made by
Leonetti, DelGiorno, and Caramandi, who are now all cooperating
witnesses and have on several occasions testified about the
illegal activities of members of the Scarfo LCN crime family.
2
. The government had also argued that it had shown probable
cause that the Rolls Royce had been purchased with proceeds from
illegal drug transactions, which might suffice to support
forfeiture pursuant to § 881(a)(6). Because the district court
decided as it did on the § 881(a)(4) question, it did not reach
the § 881(a)(6) question.
 The court recognized that the innocent owner defense of

§ 881(a)(4)(C) saves from forfeiture a vehicle used to facilitate

drug trafficking if the owner can establish that the illegal

activity was committed without the knowledge, consent, or willful

blindness of the owner. Relying on two cases discussing the

willful blindness standard in § 881(a)(4)(C), United States v.

One 1989 Jeep Wagoneer, 976 F.2d 1172, 1175 (8th Cir. 1992), and

United States v. 1977 Porsche Carrera 911, 748 F. Supp. 1180,

1186 (W.D. Tex. 1990), aff'd on other grounds, 946 F.2d 30 (5th

Cir. 1991), the district court formulated the following standard

for willful blindness:
Lack of willful blindness sufficient to
prevail as an innocent owner under §
881(a)(4)(C) means that a claimant must show
that he or she has not ignored a signal or
suggestion that a vehicle might have been
used to facilitate the trafficking of illegal
drugs. Such a suggestion might arise from
the fact that the vehicle was owned by one
accused of drug trafficking. As in this
case, once the claimant chooses to ignore the
signal, he or she can no longer establish
lack of willful blindness to the prior use of
the vehicle that would subject it to
forfeiture.

817 F. Supp. at 578.

Applying this standard, the district court found that

Goodman had failed to prove that he was not willfully blind,

i.e., that knowing what he did about Scarfo, he failed to show

that he had taken any steps to determine whether the Rolls Royce

facilitated drug trafficking. According to the court, Goodman's

representation of Leonetti in the drug trials and his cross-
examination of DelGiorno in the Beloff trial rendered his

testimony that he did not think the Scarfo LCN family dealt in

drugs incredible;3 and Goodman's general knowledge of the Scarfo

LCN family's involvement in drug trafficking was a sufficient

"signal or suggestion" that the Rolls Royce had been used in

connection with the trafficking of drugs. Id. at 580.4 Since

Goodman did nothing to determine whether the Rolls Royce in fact

had been used to facilitate drug trafficking, the district court

reasoned, he failed to show that he had not been willfully blind.

Id.

The court went on to hold that Goodman's failure to

prove that he lacked willful blindness alone defeated his

innocent owner claim. Id. Goodman had claimed that

notwithstanding his willful blindness, he could still prevail if

he could show that he did not consent to the Rolls Royce's use in

the DiSalvo and Ianarella meetings. To support this argument,

Goodman pointed to 6109 Grubb Road, which had held that proof of

either lack of knowledge or lack of consent was sufficient to

make out an innocent owner defense under § 881(a)(7). The court
3
. Goodman had testified that as far as he knew, the LCN
"abhorred" the trafficking of illegal drugs; that "if you accused
[LCN] members of drugs, the hackles went up"; and that he had
absolutely no indication the Rolls Royce was ever utilized to
facilitate illegal drug trafficking.
4
. The court rejected Goodman's argument that the relevant
question was not whether he was willfully blind to Scarfo's or
Leonetti's involvement in drugs, but whether he was willfully
blind to the fact that the Rolls Royce itself was used to
facilitate drug trafficking. According to the court, such an
argument would "misconstrue[] the willful blindness standard."
Id. at 580.
declined to extend 6109 Grubb Road to § 881(a)(4)(C), however,

reasoning that the 6109 Grubb Road approach would convert the

willful blindness language of § 881(a)(4)(C) into surplusage.5

The district court then entered a final judgment of forfeiture.

Goodman filed a timely appeal. Although we may not set

aside the district court's factual findings unless they are

clearly erroneous, see Fed. R. Civ. P. 52(a), our review of the

district court's construction of § 881(a)(4)(C) is plenary. See

United States v. 1500 Lincoln Ave., 949 F.2d 73, 76 n.3 (3d Cir.

1991). The National Association of Criminal Defense Lawyers has

filed an amicus brief in support of Goodman's appeal.

III. DISCUSSION

A. Forfeiture Under § 881(a)(4)

Section 881(a)(4) provides that "conveyances,"

including automobiles, used to facilitate drug trafficking are

subject to forfeiture. 21 U.S.C. § 881(a)(4).6 As with all the
5
. As the court explained: "If a claimant were able to prevail
under § 881(a)(4)(C) . . . by showing either lack of knowledge or
lack of consent or lack of willful blindness, then the words
`willful blindness' represent nothing more than a useless third
bite at the apple." 817 F. Supp. at 581.
6
. Section 881(a)(4) provides in pertinent part that the
following items are subject to forfeiture:

All conveyances, including aircraft, vehicles, or
vessels, which are used, or intended for use, to
transport, or in any manner to facilitate the
transportation, sale, receipt, possession, or
concealment of [controlled substances] . . .

21 U.S.C. § 881(a)(4).
forfeiture provisions of § 881, § 881(a)(4) places upon the

government the initial burden to show probable cause for

forfeiture. Probable cause exists if facts show reasonable

grounds to believe that the property was used to facilitate a

drug transaction. 6109 Grubb Road, 886 F.2d at 621. Once the

government shows probable cause, the burden shifts to the

claimant to show that he or she has a defense to the forfeiture.

The most common defense, and the only one pertinent here, is the

"innocent owner" defense provided in § 881(a)(4)(C), which states

that
no conveyance shall be forfeited under [§
881(a)(4)] 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,
consent, or willful blindness of the owner.

21 U.S.C. § 881(a)(4)(C).7 To make out the defense, the claimant

must show 1) that he or she is an owner and 2) that he or she did

not know, or was not willfully blind, or did not consent, to the

7
. Enacted as part of the Anti-Drug Abuse Act of 1988, §
881(a)(4)(C) was in large part a reaction to the excesses of the
Coast Guard's "zero tolerance" policy. The "zero tolerance"
policy had resulted in seizures of enormous commercial vessels
based on the presence of minuscule personal quantities of drugs.
For example, in one of the worst abuses of the forfeiture
statutes, the Coast Guard seized the research vessel Atlantis
because it had found one marijuana cigarette in the crew's
quarters. See Washington Digest (July 25, 1988), at 1-2,
reprinted in 1 David B. Smith, Prosecution and Defense of
Forfeiture Cases at ¶ 4.02[4][a] n.10, at 4-10. This prompted
Representative Gary Studds of Massachusetts to tell the acting
Customs Commissioner, William von Raab, during a subcommittee
hearing, "If you can't find something better to do with your
limited resources than this kind of lunacy, then maybe we've been
giving you too much money." Id.
improper use of the property. This second component of the

defense can be somewhat difficult to establish because it forces

the claimant to prove a negative.

There is no serious dispute that the government

established probable cause that the Rolls Royce had been used to

facilitate a drug transaction. FBI Agent Randal Wolverton

testified that Leonetti told him that the car was used to bring

Scarfo to the meeting with DiSalvo, and that it was used to bring

Ianarella, who was carrying the "street taxes," to Scarfo.

Although Agent Wolverton's testimony was merely hearsay, probable

cause for forfeiture may be established by hearsay evidence, see

6109 Grubb Road, 886 F.2d at 621, and it was adequate to show

probable cause here.

As we have mentioned, the main bone of contention is

whether Goodman showed that he was an "innocent" owner under §

881(a)(4)(C).8 We first consider whether the district court

8
. While the government questions whether Goodman is truly an
"owner" of the car, the district court's finding that Goodman
received title to the Rolls Royce on October 5, 1988 is not
clearly erroneous. Although the res is located in Pennsylvania,
Goodman's interest is determined by reference to Florida law, the
place where his interest arose. See Restatement (Second) of
Conflicts § 247 ("Interests in chattel are not affected by the
mere removal of the chattel to another state."). Under Florida
law, the endorsement of title to him sufficed to demonstrate
ownership. See Nash Miami Motors, Inc. v. Bandel, 47 So. 2d 701
(Fla. 1950). Although a lienholder could have an interest
superior to Goodman's (because the transfer of title was
unrecorded), see In re Canup Mech., Inc., 1 B.R. 703 (Bankr. M.D.
Fla. 1979), the only challenge to Goodman's claim of ownership
comes from the United States, which has no property interest if
Goodman can sustain the innocent owner defense. See United
States v. Parcel of Land, Bldgs., Appurtenances & Improvements at
92 Buena Vista Ave., Rumson, N.J., 113 S. Ct. 1126, 1137 (1993).
(..continued)
The government has made two related arguments
challenging this conclusion which we shall briefly address.
First, the government submits that the appropriate law is not
state law but federal common law, and as a matter of federal
common law an unregistered title certificate does not create an
ownership interest. Second, it contends that Goodman must be
able to show that the Rolls Royce was a "true gift." The case
law has generally rejected the first argument: state law defines
ownership interests. See United States v. 1977 Porsche Carrera
911, 946 F.2d 30, 34 (5th Cir. 1991); United States v. Lot 9,
Block 2 of Donnybrook Place, 919 F.2d 994, 1000 (5th Cir. 1990);
United States v. Certain Real Property Located at 2525 LeRoy
Lane, 910 F.2d 343, 347 (6th Cir. 1990) ("We see no language in
the civil forfeiture provisions which would mandate the
application of a federal common law of property. We conclude
that recognition of state laws governing property rights does not
contravene the federal forfeiture scheme, and that the
application of state law is the most appropriate method of
determining the interest of an owner under 21 U.S.C. §
881(a)(7)."), cert. denied, 499 U.S. 947, 111 S. Ct. 1414 (1991);
see also 1500 Lincoln Ave., 949 F.2d at 75 (looking to
Pennsylvania law to define owner's interest); United States v.
One Single Family Residence Located at 15621 S.W. 209th Ave.,
Miami, Fla., 894 F.2d 1511, 1514 (11th Cir. 1990) (looking to
Florida law to determine interest affected by forfeiture law).
We agree with this case law.
The second argument, however, does give us pause.
Although it is not entirely clear what the government means by
"true gift," we believe it is contending that Goodman cannot
claim innocent ownership of the property unless the transfer was
bona fide in the sense that it was not by design simply a
transaction to shield Scarfo's assets from forfeiture. This
appears to be a variant of a proposition we have accepted in a
similar context -- that nominal or straw owners lack standing to
challenge a forfeiture proceeding. See United States v. Contents
of Accounts Nos. 3034504504 & etc., 971 F.2d 974, 985-86 (3d Cir.
1992) (stating that in the context of the civil forfeiture
provisions of title 18, 18 U.S.C. § 981, a corporation that had
legal title to property but which was merely an alter ego and a
straw owner, lacked standing to challenge the forfeiture), cert.
denied, 113 S. Ct. 1580 (1993). Accounts No. 3034504504
interpreted standing for purposes of 18 U.S.C. § 981, but relied
exclusively on cases interpreting the standing requirements under
the forfeiture statute involved in this case, and is in accord
with the holdings of those cases. See United States v. Premises
Known as 526 Liscum Drive, 866 F.2d 213, 217 (6th Cir. 1989)
(stating that "possession of bare legal title by one who does not
exercise dominion or control over property may be insufficient to
establish standing to challenge a forfeiture"); United States v.
properly concluded that Goodman failed to show that he was not

(..continued)
One 1945 Douglas C-54 (DC-4) Aircraft, etc., 604 F.2d 27, 28-29
(8th Cir. 1979) (holding that owners of the res have standing to
challenge a forfeiture proceeding, but that bare legal title may
be insufficient to establish ownership), cert. denied, 454 U.S.
1143, 102 S. Ct. 1002 (1982).
This case law is in considerable tension with the
precept we have endorsed above that "ownership" is determined by
reference to state law. Although characterized as a rule of
standing, the "nominal ownership" rule is in fact a back-door
method of defining the ownership interest required to claim
innocent owner status. As a result, the nominal ownership rule
seems to apply a federal common law gloss to the proposition that
state law controls the question of ownership. But it is not
clear to us why there is any need for such a federal common law
gloss since state law appears to makes adequate provision for
depriving "nominal" or "straw" owners of full "ownership." State
fraudulent transaction law, alter-ego, or veil piercing
doctrines, for example, allow creditors to look past legal
fictions and interests to reach the property of the "true" owner.
See, e.g., West's F.S.A. § 726.105(1)(a) (under fraudulent
conveyance law, "a transfer made or obligation incurred by a
debtor is fraudulent as to a creditor, whether the creditor's
claim arose before or after the transfer was made or the
obligation incurred, if the debtor made the transfer or incurred
the obligation: (a) with actual intent to hinder, delay, or
defraud any creditor of the debtor").
We believe that the standing inquiry suggests that the
question of determining ownership may in fact ultimately be
governed by federal common law. Nevertheless, it is well
established that federal common law may incorporate state law as
the rule of decision. See United States v. Kimbell Foods, Inc.,
440 U.S. 715, 728-30, 99 S. Ct. 1448, 1458-59 (1979); United
States v. Little Lake Misere Land Co., 412 U.S. 580, 594, 93 S.
Ct. 2389, 2398 (1973). Thus, our reliance on state law to define
the ownership interest may be most accurately defined as
incorporation of state law as part of the federal common law.
And such incorporation, for all practical purposes, is the same
as total displacement of federal law by state law. See Boyle v.
United Technologies Corp., 487 U.S. 500, 507 n.3 (1988)
(questioning whether there is significance to the distinction
between the use of state law and the use of federal law which
incorporates state law). Since the incorporation of state law
under these circumstances does not "conflict" with the federal
common law rule that has developed in the standing context, we
still believe it to be appropriate to apply state law.
willfully blind to the fact that the Rolls Royce was used to

facilitate a drug transaction. We then consider whether Goodman

should be entitled to show on remand that, notwithstanding his

willful blindness (if any), he is entitled to innocent owner

status because he did not consent to the drug related uses of the

vehicle.

B. Willful Blindness and § 881(a)(4)(C)

1. The Standard

This court has yet to construe the "willful blindness"

language in § 881(a)(4)(C). We must choose between two possible

standards: an objective "due care" standard, on the one hand,

and a subjective "deliberate ignorance" or "conscious avoidance"

standard on the other. Under the objective standard, willful

blindness exists when an owner fails to exercise due care to

ensure that the property will not be and has not been used to

facilitate a drug transaction. Under the subjective standard,

willful blindness exists if the owner is aware of a high

probability that the property will be or has been used to

facilitate a drug transaction and does not make reasonable

inquiries to confirm whether it will be or in fact has been so

used.

Unfortunately, the statutory language does not define

willful blindness, and the legislative history reveals

considerable confusion over the concept. Representative Shaw, a

major force behind the enactment of § 881(a)(4)(C), suggested

that the willful blindness component was meant to impose a duty
on owners to be "reasonably informed concerning the purpose for

which another person may use their property." 134 Cong. Rec.

33,290 (1988) (statement of Rep. Shaw). Thus he apparently

endorsed the objective "due care" definition of willful

blindness, a definition he derived from the Supreme Court's

decision in Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S.

663, 94 S. Ct. 2080 (1974). See 134 Cong. Rec. 33, 290 (1988)

(statement of Rep. Shaw).

In Calero-Toledo, the Court stated in dicta that a

defense to forfeiture might be available to "an owner who proved

not only that he was uninvolved in and unaware of the wrongful

activity, but also that he had done all that reasonably could be

expected to prevent the proscribed use of his property." 416

U.S. at 689, 94 S. Ct. at 2094-95. At issue in Calero-Toledo,

however, was the constitutionality of a Puerto Rican forfeiture

statute, and thus the Calero-Toledo dicta only addressed a

possible constitutional limit of a forfeiture statute.

Ironically, then, Representative Shaw used a potential outer

constitutional limit on the power of a forfeiture statute for the

meaning of a provision that was intended to cut back on the reach

of the statute. In other words, if the willful blindness prong

in § 881(a)(4)(C) is interpreted according to the Calero-Toledo
constitutional text, then the provision is entirely superfluous

since the Calero-Toledo constitutional limit applies to every
forfeiture statute, even those without an innocent owner

provision.9

Of course Calero-Toledo might still provide the meaning

of willful blindness in § 881(a)(4)(C) if that is what Congress

had intended. But we doubt that other legislators shared

Representative Shaw's belief that the willful blindness language

be equated with the Calero-Toledo dicta. Most others who made

statements on the matter apparently had in mind the more

traditional common law formulation of willful blindness -- a

subjective "deliberate ignorance" or "conscious avoidance" state

of mind. See 134 Cong. Rec. 33,288 (1988) ("Willful blindness

addresses the cases of individuals who have demonstrated a

conscious purpose to avoid the truth.") (statement of Rep.

Young); id. at 33,313 ("[The concept of willful blindness] is

intended to prevent the owner of a conveyance from closing his

eyes to a violation.") (statement of Rep. Jones); id. at 33,315

("Willful blindness addresses the case of individuals who have

demonstrated a conscious purpose to avoid the truth. The concept

of willful blindness is essentially part of the proof of

knowledge.") (statement of Rep. Davis).

Perhaps because of the confusion in the legislative

history, a circuit split appears to be developing over the

9
. Representative Shaw's confusion over the relationship between
the statutory requirement of willful blindness and Calero-Toledo
is also evident from other parts of his statement about §
881(a)(4)(C). For example, he stated that "this section is not
intended to overturn [Calero-Toledo]." But, since Calero-Toledo
discuses the constitutional limitation on forfeiture statutes,
Congress could not overturn it.
definition of willful blindness in the context of civil

forfeiture. The Eleventh Circuit has held that the appropriate

standard is the objective due care standard of Calero-Toledo.

United States v. One 1980 Bertram 58' Motor Yacht, 876 F.2d 884,

888 (11th Cir. 1989). Bertram endorsed a pure due care standard:

the owner had to do "everything that a truly innocent owner

reasonably could be expected to do to insure that his vessel was

not to be used illegally." Id. at 889.10 The Eighth Circuit,

however, has held in 1989 Jeep Wagoneer that the appropriate

standard is the subjective one -- whether one deliberately closed

his or her eyes to what otherwise would have been obvious -- and

has expressly rejected the idea that the willful blindness test

under § 881(a)(4)(C) should be identical to the constitutional

standard of Calero-Toledo. See 976 F.2d at 1174-75.

In our leading case on willful blindness, United States

v. Caminos, 770 F.2d 361, 365 (3d Cir. 1985), we held that the

deliberate ignorance requirement is met only if "the defendant

himself was subjectively aware of the high probability of the

fact in question, and not merely that a reasonable man would have

been aware of the probability." Id. at 365. Under this

definition, willful blindness is a subjective state of mind that

10
. In applying the willful blindness standard to the facts
before it, the Bertram panel held that once an owner of a yacht
advertised it for sale in Miami and a purchaser came forward with
a cash deposit, the owner had a duty to ask for identification
from the purchaser, call local law enforcement officials, and
inquire about the purchaser's reputation in the community in
order to maintain his status as an innocent owner. Id. at 888-
89. Because the owner had failed to take such steps, he was held
not to be an innocent owner. Id.
is deemed to satisfy a scienter requirement of knowledge.11

11
. In Caminos, we adopted the deliberate ignorance charge that
originated in United States v. Jewell, 532 F.2d 697 (9th Cir.),
cert. denied, 426 U.S. 951, 96 S. Ct. 3173 (1976). In Jewell,
which involved a defendant who was caught with marijuana in a
compartment of his car, the Ninth Circuit endorsed the following
instruction:

The Government can complete [its] burden of proof by
proving, beyond a reasonable doubt, that if the
defendant was not actually aware that there was
marijuana in the vehicle . . . his ignorance in that
regard was solely and entirely a result of his having
made a conscious purpose to disregard the nature of
that which was in the vehicle . . . .

532 F.2d at 700. In dissent, Judge (now Justice) Kennedy pointed
out that conscious avoidance alone is not sufficient to create a
mental state equal in culpability to knowledge. According to
Judge Kennedy, the conscious avoidance must be accompanied by an
awareness of a high probability that a fact exists for it to be
culpable. Id. at 707 (Kennedy, J., dissenting). He also argued
that willful blindness cannot exist where there was an actual
belief that the relevant fact did not exist. According to Judge
Kennedy, lack of an instruction to that effect created a risk
that a defendant would be held to an objective reasonable person
standard, whereas true ignorance, no matter how unreasonable,
should constitute a defense to criminal liability based on
knowledge. Id.
It appears that the Caminos instruction was closer to
Judge Kennedy's formulation than the majority's in Jewell. In
Caminos the instruction stated in part:

[I]f the evidence shows that [the defendant] positively
did not know, then, of course, he must be acquitted.
And if the evidence indicates that he was very stupid
in the action he took, or ignorant, he cannot be
convicted. But if the evidence shows that there was a
high probability that he knew something was amiss and
that he failed to take steps to investigate, to find
out whether that was true or not, then you may find
that he had the guilty knowledge which is required for
conviction of the offense of importing a controlled
substance.

770 F.2d at 366. The one incongruity between this instruction
and Judge Kennedy's formulation in the Jewell dissent is that the
Caminos instruction asked whether there was a high probability
Although courts and commentators have yet to come to a consensus

on definition of willful blindness,12 the Caminos formulation
(..continued)
that the defendant knew something was amiss. Though this might
have suggested some objective component to the inquiry, the
Caminos panel read the instruction as requiring a subjective
awareness of a high probability that something was amiss. Id. at
365.
12
. Willful blindness has proven to be an elusive concept and
much disagreement still exists over the appropriate definition of
the term. See Jewell, 532 F.2d at 706 (Kennedy, J., dissenting)
("There is disagreement as to whether reckless disregard for the
existence of a fact constitutes wilful blindness or some lesser
degree of culpability. . . . There is also the question of
whether to use an `objective' test based on the reasonable man,
or to consider the defendant's subjective belief as dispositive."
(footnotes omitted)).
Some believe willful blindness is simply a surrogate
for knowledge. See Rollin M. Perkins, Criminal Law 776 (2d ed.
1969) ("One with a deliberate antisocial purpose in mind . . .
may deliberately `shut his eyes' to avoid knowing what would
otherwise be obvious to view. In such cases, so far as the
criminal law is concerned, the person acts at his peril in this
regard, and is treated as having `knowledge' of the facts as they
are ultimately discovered to be."); Glanville Williams, Criminal
Law, The General Part § 57, at 159 (2d ed. 1961) ("To the
requirement of actual knowledge there is one strictly limited
exception. . . . [T]he rule is that if a party has his suspicion
aroused but then deliberately omits to make further enquiries,
because he wishes to remain in ignorance, he is deemed to have
knowledge. The rule that willful blindness is equivalent to
knowledge is essential and is found throughout the criminal
law."); Edwards, The Criminal Degrees of Knowledge, 17 Mod. L.
Rev. 294, 298 (1954) ("For well nigh a hundred years, it has been
clear from the authorities that a person who deliberately shuts
his eyes to an obvious means of knowledge has sufficient mens rea
for an offense based on such words as . . . `knowingly.'").
Others equate it with a less culpable state of mind. See Robin
Charlow, Wilful Ignorance, 70 Tex. L. Rev. 1351, 1429 (1992)
("Although wilful ignorance is usually employed to satisfy a
statutory mens rea of knowledge, the most prevalent definitions
of the doctrine describe a state of mind that is . . . not as
culpable as knowledge."); Ira P. Robbins, The Ostrich
Instruction: Deliberate Ignorance as a Crim. Mens Rea, 81 Crim.
L. & Criminology 191, 195 (1990) ("Deliberate ignorance
constitutes recklessness, rather than knowledge.").
basically adopts the mainstream conception of willful blindness

as a state of mind of much greater culpability than simple

negligence or recklessness, and more akin to knowledge. See

supra n.12. See also United States v. Rivera, 944 F.2d 1563,

1570 (11th Cir. 1991) (willful blindness equated with the concept

of "deliberate ignorance" and treated a state of mind equally

culpable as actual knowledge); United States v. Rothrock, 806

F.2d 318, 323 (1st Cir. 1986) ("The purpose of the willful

blindness theory is to impose criminal liability on people who,

recognizing the likelihood of wrongdoing, nonetheless consciously

refuse to take basic investigatory steps."). Thus in the absence

of a clear statement in either the statute or the legislative

history, we adopt the Caminos definition of willful blindness for

§ 881(a)(4)(C).13

13
. The Caminos "deliberate ignorance" conception is careful to
distance willful blindness from a due care or negligence
standard. Indeed, any willful blindness instruction must be
designed to reduce the risk that willful blindness will be found
where there was simply a lack of due care or even where there was
recklessness. Accord United States v. Cassiere, 4 F.3d 1006,
1023 (1st Cir. 1993) ("Caution is necessary in giving a willful
blindness instruction `because of the possibility that the jury
will be led to employ a negligence standard and convict a
defendant [on the ground] that he should have known [an illegal
act] was taking place.'" (quoting United States v. Littlefield,
840 F.2d 143, 148 n.3 (1st Cir. 1988))).
This threat has led some, including the drafters of the
Model Penal Code, to conclude that the concept of willful
blindness should simply be folded into the definition of
knowledge. See Model Penal Code § 2.02(7); see also Note, Model
Penal Code Section 2.02(7) and Willful Blindness, 102 Yale L. J.
2231 (1993) (arguing that willful blindness should be eliminated
and replaced with the broader definition of knowledge found in
the Model Penal Code). Under the Model Penal Code § 2.02(7),
when knowledge of a fact is an element of an offense, it is
established "if a person is aware of a high probability of its
existence, unless he actually believes that it does not exist."
 This construction is consistent with the general

agreement manifest in the legislative history that the §

881(a)(4)(C) innocent owner defense should be the same as those

of §§ 881(a)(6) and (7). Representative Shaw, for instance,

stated that the defense under § 881(a)(4)(C) was "virtually

identical" to the defense for innocent owners under §§ 881(a)(6)

and (7). 134 Cong. Rec. 33,290 (1988). Others expressed the

same sentiments. See 134 Cong. Rec. 33,288 (1988) ("The concept

of willful blindness is essentially part of the proof of lack of

knowledge. For this reason, the defense for innocent owners of

conveyances seized for drug related offenses is virtually

identical to the existing defenses for innocent owners of real

property . . . or other things of value under paragraphs (6) and

(7) of section 511(a) of the Controlled Substances Act (21 U.S.C.

811(a)(6) and (7)).") (statement of Rep. Young); ("[T]he defense

for innocent owners of conveyances seized for drug-related

offense[s] is virtually identical to the existing defenses for

innocent owners of real property, and money . . . .") (statement

of Rep. Young); see also 1 David Smith, Prosecution and Defense

of Forfeiture Cases ¶ 4.02[4][a], at 4-10 (1993) ("[Section
(..continued)
The Model Penal Code provision "requires an awareness of a high
probability that a fact exists, not merely a reckless disregard,
or a suspicion followed by a failure to make further inquiry. It
also establishes knowledge as a matter of subjective belief, an
important safeguard against diluting the guilty state of mind
required for conviction." Jewell, 532 F.2d at 707 (Kennedy, J.,
dissenting). This, as noted, is consistent with Cominos. The
Supreme Court has explicitly endorsed the Model Penal Code
formulation for knowledge. See Turner v. United States, 396 U.S.
398, 416, 90 S. Ct. 642, 652 (1970); Leary v. United States, 395
U.S. 6, 46 n.93, 89 S. Ct. 1532, 1553 n.93 (1969).
881(a)(4)(C)] should be interpreted in pari materia with the

identical innocent owner provisions in sections 881(a)(6) and

(a)(7).").

Our construction is further supported by the fact that,

despite the textual absence of willful blindness terminology,

both § 881(a)(6) and § 881(a)(7) have been interpreted by many

courts to require owners to demonstrate not only a lack of actual

knowledge, but also a lack of willful blindness.14 Because the

only way willful blindness can become part of the innocent owner

defense in those sections is if the "knowledge" component is read

to incorporate willful blindness, courts have tended to adopt the

"deliberate ignorance" formulation of willful blindness in §§

881(a)(6) and (7). See, e.g., 1980 Red Ferrari, 827 F.2d at 480

(stating that the claimant could have avoided knowledge that the

14
. See United States v. 1980 Red Ferrari, 827 F.2d 477 (9th
Cir. 1987); United States v. One Parcel of Property at 755
Forest Road, 985 F.2d 70, 72 (2d Cir. 1993); United States v.
$4,255,000, 762 F.2d 895, 906 (11th Cir. 1985) (upholding §
881(a)(6) forfeiture where the owner "indicated a tacit
acknowledgement of his disquieting belief that these large cash
deposits were coming to [a depositor] by way of Colombian
couriers carrying narcotic-generated cash" and "[the owner] had a
`gnawing belief that the funds being dealt with were tainted'"),
cert. denied, 474 U.S. 1056, 106 S. Ct. 795 (1986); 1977 Porsche
Carrera 911, 748 F. Supp. at 1186 ("The `willful blindness'
language of subsection (4)(C) is absent from subsection (6), but
the legislative history behind the differing language may suggest
that Congress intended that a claimant prove the absence of all
three circumstances --- knowledge, consent, and willful blindness
-- to prevail under any of the subsections of section 881 to
which the innocent owner exception applies."). But see United
States v. One Single Family Residence Located at 6960 MiraFlores
Ave., 995 F.2d 1558, 1564 (11th Cir. 1993) (finding irrelevant
under § 881(a)(7) whether the owner "deliberately closed his eyes
to what he had every reason to believe was the truth").
Ferrari was involved in drug trafficking only by "sticking his

head in the sand" (internal quotation omitted)). Thus,

interpreting § 881(a)(4)(C) to require the owner to show a lack

of deliberate ignorance ensures that its innocent owner defense

is the same as that required under §§ 881(a)(6) and (7).15

2. Application of the Standard

Turning now to the facts before us, under the standard

we adopt today, willful blindness could not be found if it were

positively established that Goodman did not know that the Rolls

Royce was used for drug trafficking. Similarly, if Goodman were

just lacking in intelligence, negligent, or mistaken, he should

not be found to have been willfully blind. But if Goodman fails

to show that he did not know there was a high probability that

the vehicle had been used to traffic drugs, and then fails to

show that he took affirmative steps to investigate whether the

car had in fact been used to facilitate drug trafficking, he will

not have satisfied his burden to show that he was not willfully

blind.

15
. This conclusion is also consistent with the view of a
leading commentator. See 1 Smith at ¶ 4.03[c][ii], at 4-90.1-
90.2 ("Deliberate avoidance of knowledge by sticking one's head
in the sand will be equated with actual knowledge, as in criminal
cases. This is so regardless of the fact that sections 881(a)(6)
and (a)(7) do not contain an explicit `willful blindness'
exception to the defense for innocent owners, unlike section
881(a)(4). However, failure to exercise due care does not
preclude reliance on the innocent owner defense."); id. at ¶
4.03[c][ii], at 4-90.2 n.82 (describing cases that equate willful
blindness with a lack of due care as "clearly wrong" and stating
that willful blindness should not be equated with negligence).
 Unfortunately, we cannot determine whether the district

court used the appropriate standard when it held that Goodman

failed to show that he was not willfully blind. The district

court formulated the willful blindness standard as "ignor[ing] a

signal or suggestion that a vehicle might have been used to

facilitate the trafficking of illegal drugs" and explained that

"once the claimant chooses to ignore the signal, he or she can no

longer establish lack to willful blindness to the prior use of

the vehicle . . . ." Amicus argues that this language is an

objective "due care" formulation. The government disagrees. We

are inclined to agree with amicus, though we cannot tell for

sure. Although the district court supported its conclusion by

citing 1989 Jeep Wagoneer, 976 F.2d at 1175, which endorsed a

subjective standard, it then cited language from 1977 Porsche

Carrera 911, 748 F. Supp. at 1186, which seems to endorse an

objective one. Moreover, the standard announced by the district

court focuses on the owner rather than the car (it stated "[s]uch

a suggestion might arise from the fact that the vehicle was owned

by one accused of drug trafficking,"), but it does so

erroneously, see infra at 35. We therefore will vacate the

judgment of forfeiture and remand for reconsideration under the

standard we articulate today. We take this opportunity to

provide some guidance to the district court in considering this

issue on remand.

It appears from the record before us that it is

virtually undisputed that Goodman took no steps to investigate

whether the Rolls Royce had been used to facilitate drug
trafficking at the time he acquired it. The principal issue on

remand, therefore, reduces to the following factual inquiry:

whether Goodman had actual knowledge of a high probability that

the Rolls Royce was used in drug trafficking.

Although the standard we announce requires proof of

actual knowledge of the high probability, such knowledge is

commonly proven by inference from circumstantial evidence. Thus,

for example, if it is proven that Goodman knew that Scarfo's only

income was through drug trafficking, and the court finds that

such facts are sufficient to support a conclusion that there was

a high probability that the Rolls Royce had been used to

facilitate drug trafficking, the district court could reasonably

infer that Goodman actually knew about the high probability. The

court may also reject testimony to the contrary that it finds is

incredible, such as Goodman's claim that he did not know about

the high probability that the car facilitated a drug transaction

because Scarfo and the LCN had a rule against drug dealing.

One question that has arisen on this appeal is whether

the "high probability" prong of the willful blindness test

requires knowledge of a high probability that the vehicle itself

was used to facilitate drug transactions, or whether it refers to

knowledge of a high probability that the former owner of the

vehicle was accused of drug trafficking. So stated, the answer

is simple. Because this forfeiture action focuses on the taint

of the res itself, the relevant question is whether Goodman knew

of the high probability that the Rolls Royce itself was used to

traffic drugs. The more difficult question, however, is whether
knowledge that the previous owner had been accused of drug

trafficking is sufficient, standing alone, to support an

inference that the transferee was aware of a high probability

that the car itself was used to facilitate drug trafficking. We

do not think so.

Standing alone, an accusation of drug trafficking, even

if in the form of an indictment, does not create a sufficiently

high probability that property of the accused was used to

facilitate drug trafficking. In our view, it is unreasonable to

conclude that a claimant's knowledge of such an accusation,

without more, supports the inference that the claimant was aware

of a high probability that all of the property of the accused is

tainted. The accused may have sources of income from legitimate

businesses, and, in the context of this case, even if Goodman

believed that Scarfo had no legitimate sources of income, he may

have believed that his income came from illegal activities that

had little or nothing to do with drug trafficking, or that Scarfo

might have owned other cars other than the Rolls Royce that he

used in drug trafficking.16 We doubt that the civil forfeiture

provisions, which are aimed at combating drug trafficking, are

meant to allow forfeiture of property used in or bought from non-

drug related illegal activity.

16
. For example, Scarfo may have received a good deal of his
income from loan-sharking, extortion, or illegal gambling
operations. Thus Goodman may have thought that the probability
was quite low that the Rolls Royce was purchased with proceeds
from the drug trafficking of which Scarfo was accused or that
Scarfo had used the Rolls Royce in drug transactions.
 We do not mean to suggest that Goodman has shown that

he was not willfully blind. We state only that his knowledge

that Scarfo had been indicted for drug dealing did not, by

itself, necessarily invest Goodman with knowledge of a high

probability that the car was tainted. However, there appears to

be some evidence that Goodman knew more about the Rolls Royce's

particular involvement in illegal activity than simply that its

owner had been accused of drug trafficking. Specifically,

shortly after he received ownership of the Rolls Royce, Goodman

spent $4,000 removing counter-surveillance equipment from it. In

any event, we leave the question to the district court on

remand.17
17
. Another vexing aspect of the problem bears mention. Goodman
was not just any old acquirer of the Rolls Royce -- he was a
lawyer. And although the Rolls Royce was not transferred to him
as a fee for legal services, but as repayment of a debt, we can
scarcely write on so important and sensitive a subject without
recognizing that the car could very easily have been a fee. We
therefore believe that we should at least touch upon the question
whether our decision on this question creates an unwarranted
strain on the attorney/client relationship.
It might be argued that the rule we fashion today, when
applied in the context of an attorney's fee, creates an incentive
on the part of the attorney to avoid investigating the client's
case for fear that he or she might discover something that would
negate an innocent owner defense and subject the fee to
forfeiture. Obviously a rule that creates such an incentive
potentially compromises an accused's Sixth Amendment right to
have a lawyer who thoroughly investigates his or her case.
But such an argument assumes that an attorney would
lose the benefit of the innocent owner defense in a forfeiture
proceeding against a fee if he or she discovered the taint after
receiving the fee. We do not think such an assumption to be
sound. Although at least one case suggests that a fee might be
subject to forfeiture even when discovery of the taint occurs
after the transfer, see 1977 Porsche Carrera 911, 748 F. Supp. at
1188 (stating that even when a lawyer who is unaware of the taint
at the precise moment of acquisition, it is forfeitable if he or
she learns of the taint soon afterwards), 92 Buena Vista Avenue
 In sum, we hold that, to avoid the "willful blindness"

prong of the innocent owner defense in § 881(a)(4)(C), Goodman

must demonstrate that he was not subjectively aware of a high

probability that the Rolls Royce either was or was going to be

used to facilitate an illegal drug transaction, or, if he was,

that he took reasonable affirmative steps under the circumstances

to determine whether in fact the vehicle was going to be or had

been so used. We also conclude that in applying this standard,

(..continued)
suggests the contrary. See 113 S. Ct. at 1145 (Kennedy, J.,
dissenting) ("another oddity now given to us by the plurality
decision is that a gratuitous transferee must forfeit the
proceeds of a drug deal if she knew of the drug deal before she
received the proceeds, but not if she discovered it a moment
after.") (emphasis supplied). And, as we discuss in the next
subsection, fees may not be subject to forfeiture even if the
attorney had known of the taint at the time the fee was received,
as long as he or she did not know about the act creating the
taint at the time it was committed. If an attorney would not
lose the fee when he or she only discovers the taint after
receiving the property, then the rule we fashion would create no
disincentive for an attorney to investigate a client's case. It
would merely create an incentive for an attorney to require
payment of the fee (or retainer) up-front.
On the other hand, if an indictment or other serious
accusation is enough, by itself, to create knowledge of a high
probability of the taint that would trigger a duty to investigate
the source of a fee, attorneys would be reluctant to take on any
clients accused of drug trafficking. Generally speaking, should
an innocent ownership claim be defeatable simply because the
property was owned by one accused of drug trafficking, a lawyer
would hesitate to ever accept a fee in a drug case, a money
laundering case, a structuring case, see 18 U.S.C. § 981(a)(2),
or a RICO case, see 18 U.S.C. § 1963(c). There is, of course, no
Sixth Amendment right to the attorney of one's choosing, see
Caplin & Drysdale v. United States, 491 U.S. 617, 624-25, 109 S.
Ct. 2646, 2652 (1989), but we do doubt that the statute was meant
to induce such a result. At all events, this difficult and
vexatious problem needs much further consideration.
the mere fact that Goodman was aware that Scarfo had been accused

of drug trafficking does not, by itself, show that Goodman was

aware of a high probability that the property was tainted. We

now consider whether Goodman should also be entitled to innocent

owner defense if he shows that he did not consent to the Rolls

Royce's improper use.

C. Is Lack of Consent An Independent
Defense Under § 881(a)(4)?

1. Analysis

Should the district court conclude on remand that

Goodman was willfully blind, the question will arise whether such

a conclusion will defeat his claim of innocent owner status. As

has been mentioned, the district court believed that it did, and

rejected Goodman's argument that, under 6109 Grubb Road, he

should still be entitled to innocent owner protection if he could

show that he did not consent to the use of the Rolls Royce to

facilitate a drug transaction. See 817 F. Supp. at 580. As we

have also noted above, 6109 Grubb Road held that, in the context

of a § 881(a)(7) forfeiture, an owner who had knowledge of the

taint will still be considered an innocent owner upon a showing

that he or she did not consent to the use which caused the taint.

The district court refused to apply 6109 Grubb Road, stating that

the case did not govern § 881(a)(4)(C) forfeitures.

In 6109 Grubb Road, the claimant admitted knowing that

her property had been used for drug dealing. She argued,

however, that notwithstanding such knowledge, she should still be
entitled to innocent owner status because she could show that she

did not consent to its use therefor. Relying principally on the

canon of construction that words separated by an "or" must be

given independent meaning, the panel agreed, concluding that the

lack of either knowledge or consent established innocent owner

status. 886 F.2d at 626.

We believe that the 6109 Grubb Road analysis is

applicable to § 881(a)(4)(C) for two reasons. First, for all

practical purposes, although the willful blindness language

appears only in § 881(a)(4), the tests for innocent ownership

under all three provisions are virtually identical, and hence the

construction should be consistent. See supra at 31. Since the

choice between reading the conditions for innocent owner status

in the disjunctive or conjunctive will have a dramatic effect on

the nature of the defenses, the construction should remain

consistent across all three subsections in order to keep the

defenses "virtually identical," see supra at 31.

Second, and more importantly, the central logic of the

6109 Grubb Road decision mandates the same result in the context

of § 881(a)(4). As has been mentioned, the 6109 Grubb Road panel
ultimately based its decision on the language and structure of

the statute, in particular, the use of the traditionally

disjunctive word "or." 886 F.2d at 626 ("The use of or in the

statute (knowledge or consent) means that each word must be given

its independent and ordinary meaning. . . . Reading `knowledge

or consent' as the canons of construction require, we conclude

that [the claimant] can show innocent ownership by proving by a
preponderance of the evidence that the illegal use of the

property occurred either without her knowledge or without her

consent."). Although § 881(a)(4)(C) adds the willful blindness

notion, the language and structure of the provision is identical

to that of § 881(a)(7), including the use of the traditional

disjunctive "or." The government asks us to overlook the obvious

similarities between §§ 881(a)(4)(C) and (7) for purposes of

applying 6109 Grubb Road, contending that, to transpose 6109

Grubb Road to § 881(a)(4)(C) would lead to the absurd result that

every owner could establish the innocent owner defense.

The government's argument goes as follows. First, the

government recognizes that if 6109 Grubb Road is extended to §

881(a)(4)(C), an owner can prevail on the innocent owner defense

by showing either a lack of willful blindness or a lack of

knowledge. Second, the government assumes that willful blindness

and knowledge are mutually exclusive. In other words, the

government maintains that if the court finds that the owner knew

that the conveyance was used to facilitate drug transactions, it

must logically conclude that the owner was not willfully blind

thereto; concomitantly, the government contends that if the court

finds that the owner was willfully blind to the conveyance having

been used to facilitate drug transactions, it must necessarily

conclude that the owner lacked knowledge thereof. Accordingly,

the government maintains, an owner can always show that he or she

either lacked knowledge or was not willfully blind, causing the
6109 Grubb Road construction to create the absurd situation in
which an owner could successfully make out the innocent owner
defense simply by failing to satisfy one of the conditions for

innocent owner status. Under this analysis, it argues, 6109

Grubb Road cannot apply.

But in the world of logic, a syllogism is valid only if

its premises are sound, and it appears to us that one of the

government's premises is false. As our discussion of willful

blindness in the previous section demonstrates, willful blindness

and knowledge are not mutually exclusive states of mind. Willful

blindness, as it is used in § 881(a)(4)(C), and as it has been

used traditionally, is an alternative way of proving knowledge.

In terms, "knowledge" comprises both actual knowledge -- a

subjective belief that something is true -- and willful blindness

-- a subjective belief that it is highly probably that something

is true. In other words, willful blindness is a subset of

knowledge. For this reason, proof of willful blindness has been

sufficient to prove knowledge in the context of §§ 881(a)(6) and

(7). Since such proof establishes knowledge in the context of

those sections, it also be suffices to establish knowledge in the

context of § 881(a)(4)(C), for we see no reason to construe the

term "knowledge" in § 881(a)(4)(C) differently from §§ 881(a)(6)

and (7). It follows, then, that an owner's failure to prove a

lack of willful blindness simultaneously amounts to a failure to

prove lack of knowledge for purposes of the statute. As a

result, the illogical result the government fears if we apply

6109 Grubb Road to § 881(a)(4)(C) is illusory.

The fact that § 881(a)(7) has been interpreted to

deprive a claimant of innocent owner status where the owner was
willfully blind is important for another reason. If the

government is correct that willful blindness and actual knowledge

are mutually exclusive mental states, then the "illogical" result

would also exist in the context of § 881(a)(7). In other words,

the government's assumption that willful blindness and knowledge

are mutually exclusive is at odds with the well settled case law

holding that willful blindness is sufficient to deprive a

claimant of the innocent owner defense of § 881(a)(7). In short,

the government's argument is really a veiled criticism of 6109

Grubb Road, not just of its application to § 881(a)(4)(C), and

does not provide a basis for distinguishing § 881(a)(7) from §

881(a)(4)(C).

We can find no reason why the rationale of 6109 Grubb

Road should not apply with equal force to forfeitures under §

881(a)(4)(C). The legislative history clearly tells us that the

defenses under § 881(a)(7) and § 881(a)(4)(C) are the same; the

structure of the language in § 881(a)(4)(C) is identical to that

in § 881(a)(7), so the same canons of construction that were

controlling 6109 Grubb Road lead to an identical result here.

Section 881(a)(4)(C) does not embody any policy distinct from §

881(a)(7) which would otherwise prevent the application of 6109
Grubb Road to the construction of its language. We therefore

conclude that the innocent owner defense of § 881(a)(4)(C) is

available to any owner who can prove any one of either a lack of

knowledge, lack of consent, or lack of willful blindness.

Accordingly Goodman should be entitled to innocent owner status
if he did not consent to the use of the Rolls Royce in

facilitating drug trafficking.

2. The 6109 Grubb Road Problem

A straightforward application of 6109 Grubb Road to the

facts of this case suggests that on remand, Goodman could show

that he did not consent to the improper use of the Rolls Royce by

proving that he did not own the car at the time that it was used

to facilitate drug transactions, that he was not in a position to

prevent such a use of the car, and that he did not know that the

car was being used for such a purpose at the time it was so used

or, if he knew, that he took all reasonable steps to prevent such

use. If Goodman did not know that the Rolls Royce was going to

be used in the DiSalvo or Ianarella meetings, he simply could not

have consented to such a use. As a result, even if Goodman

actually knew about or was willfully blind to the car's past

improper use at the time he obtained ownership of it, he could

not have consented to such improper use, and hence would be an

innocent owner. Because we do not see how a person can consent

to a particular use of property if he or she did not know that

the property would be so used at or before the time of the use,

the 6109 Grubb Road approach means that a subsequent owner who

did not know about the act creating the taint on the property at

or before it was committed would always be an innocent owner

under the statute -- even if he or she knew about the act

creating the taint at the time he or she received the property.
 The result we reach by applying 6109 Grubb Road raises

the question whether that case was properly decided as an

original matter. We, of course, cannot avoid the holding of that

opinion, see Third Circuit Internal Operating Procedures 9.1, but

the result 6109 Grubb Road created here seems at first blush

sufficiently counterintuitive that the case needs more

explaining. As we describe below, although the rationale given

in 6109 Grubb Road is not free from doubt, the result is quite

sensible as a matter of policy. Indeed, as we also detail below,

the puzzling result cannot be laid at the feet of the 6109 Grubb

Road panel. Rather, in our view, the cause is the nearly

impenetrable language of the statute and an intervening Supreme

Court decision, 92 Buena Vista, the importance of which the 6109

Grubb Road panel would not have anticipated.

We begin by noting that the rationale provided in 6109

Grubb Road is vulnerable.18 The argument that the existence of

the word "or" between the words knowledge and consent requires a

disjunctive reading of the conditions that an owner needs to

establish to show innocent owner status, arguably overlooked the

importance of context in determining whether the conditions
should be treated as disjunctive or conjunctive. Whether

requirements in a statute are to be treated as disjunctive or

conjunctive does not always turn on whether the word "or" is

18
. At the time it was decided, three judges on this court
believed that the decision was incorrect. See United States v.
Parcel of Real Property Known As 6109 Grubb Road, 890 F.2d 659
(3d Cir. 1989) (sur petition for rehearing) (Greenberg, J.,
dissenting).
used; rather it turns on context. For example, if a statute

provides that "no cars or motorcycles are allowed in the park," a

person trying to keep a vehicle out of the park need only show

that the vehicle is either a car or a motorcycle. From that

perspective the statute is disjunctive. On the other hand, a

person trying to bring a vehicle into the park must show both

that it is not a car and that it is not a motorcycle. From that

perspective, the statute is conjunctive. Depending on the

relevant context, a disjunctive test can always be reformulated

as a conjunctive one.19

To be fair to the 6109 Grubb Road panel, part of the

problem in both 6109 Grubb Road and in this case stems from the

language of the statute itself. Filled with negatives, its

language is nearly impenetrable. The difficulty with the 6109

Grubb Road linguistic interpretation is demonstrated by removing

two of the negatives (which should not change the meaning of the

19
. A principle used in symbolic logic called DeMorgan's Theorem
illustrates how language phrased in the disjunctive can be
rephrased in the conjunctive. Under DeMorgan's Theorem the
denial of the alternation [not A or B] is equivalent to the
conjunction of the denials [not A and not B]. See Lalit K.
Loomba, The Innocent Owner Defense to Real Property Forfeiture
Under the Comprehensive Crime Control Act of 1984, 58 Fordham L.
Rev. 473, 481 n.68 (1989); see also United States v. Certain Real
Property & Premises Known as 890 Noyac Road, 739 F. Supp. 111,
113-15 (E.D.N.Y. 1990) (specifically referring to DeMorgan's
Theorem in construing § 881(a)(7)), rev'd, 945 F.2d 1252 (2d Cir.
1991). Section 881(a)(7) requires an owner to establish that the
drug trafficking was committed "without his knowledge or
consent." Showing that something was without knowledge or
consent is a denial of the alternation; thus according to
DeMorgan's Theorem, the owner must show the conjunction of the
denial, that is, that there was no knowledge and no consent.
statute) and the burden of proof language (which merely indicates

who has to satisfy the requirements of the statute without

indicating what the party with the burden must show):
[] property shall be forfeited under [§ 881(a)(7)] to
the extent of an interest of an owner, by reason of any
act or omission . . . committed or omitted with[] the
knowledge or consent of the owner.

Parsed with the negatives and the burden of proof language

excised, the statute provides that an act or omission committed

under any one of the two conditions will preclude an innocent

owner defense. If an act is committed with knowledge, the

vehicle is forfeited, and if it is committed with consent, it is

forfeited. Thus, a conjunctive, rather than disjunctive, reading

seems plausible.

Of course, one might resort to the legislative history

to construe the language, but unfortunately the legislative

history is unhelpful on this issue.20 The textual analysis does
20
. The legislative histories of §§ 881(a)(4)(C), (6) and (7) do
not clearly state whether the conditions for the innocent owner
defense should be read in the disjunctive or conjunctive. Both §
881(a)(4)(C) and § 881(a)(7) have sparse legislative histories on
this point. The legislative histories from both statutes,
however, reference § 881(a)(6). Where reference in the
legislative history of §§ 881(a)(4)(C) and (7) is made to §
881(a)(6), it is appropriate to look at the legislative history
of § 881(a)(6) in construing those subsections. See 6109 Grubb
Road, 886 F.2d at 625; United States v. One Parcel of Real Estate
at 1012 Germantown Road, 963 F.2d 1496, 1505 (11th Cir. 1992).
However, although Congress suggested that the proper
interpretation of the "knew or consented" language of § 881(a)(6)
would require the owner to prove the lack of both, see Joint
Explanatory Statement of Titles II and III to the Psychotropic
Substances Act of 1978, 124 Cong. Rec. 17,647 (1978), reprinted
in 1978 U.S.C.C.A.N. 9518, 9522-23 ("[T]he property would not be
subject to forfeiture unless the owner knew or consented to the
[illegal conduct]."), some have questioned whether this statement
from the legislative history is entitled to much weight because
not, however, leave 6109 Grubb Road insupportable. Quite to the

contrary, at least three different reasons justify the 6109 Grubb

Road approach. First, the 6109 Grubb Road construction avoids

making the "consent" requirement surplusage. Construing the

statute to require the claimant to negate both knowledge and

consent renders the "consent" language redundant. In other

words, if a claimant established a lack of knowledge, this would

necessarily negate any consent to the illegal activity, because

"in order to consent to drug activity, one must know about it."

United States v. 141st St. Corp., 911 F.2d 870, 878 (2d Cir.

1990), cert. denied, 498 U.S. 1109, 111 S. Ct. 1017 (1991)

(quoted in 1 Smith at ¶ 4.02[6][d]). Under a conjunctive

reading, "[t]he term consent would be totally unnecessary since

the factfinder would never reach the issue of consent once it

concluded that the claimant either had knowledge or lacked

knowledge." 1 Smith at ¶ 4.02[6][d].21
(..continued)
other parts of the document show confusion on how the forfeiture
statute was meant to operate. See Loomba, 58 Fordham L. Rev. at
484.
The statement apparently incorrectly intimated that the
burden of proof as to knowledge and consent was on the
government, something that is clearly not the case, and at least
one commentator has concluded from this that the statement may
have incorrectly understood other aspects of the statute as well,
including whether the owner must prove both lack of knowledge and
lack of consent. See Loomba, 58 Fordham L. Rev. at 484. It is
not entirely clear to us that this statement does put the burden
of proof on the government and, even if it did, why such a
mistake means that we should ignore the language suggesting that
the owner must prove a lack of knowledge and consent.
Nevertheless, we agree that this legislative history is not very
helpful.
21
. Of course, any reading (conjunctive or disjunctive) will
render one of the two terms redundant. As one term (consent) is
 Second, and more importantly, the 6109 Grubb Road

construction ameliorates some of the harsh effects of the

forfeiture statute. It allows an owner to keep the property when

he or she has done everything reasonably possible to prevent its

use in drug activity. See, e.g., United States v. All Right

Title & Interest in Property Known as 710 Main St., 744 F. Supp.

510, 524-25 (S.D.N.Y. 1990) (holding that a landlord who closed

off portions of a building used in drug trafficking, posted signs

discouraging drug trafficking, restricted hours of operation of

one of the businesses, and made anonymous phone calls to the

police to report drug activity at his property, was an innocent

owner); United States v. Certain Real Property & Premises Known

as 171-02 Liberty Ave., 710 F. Supp. 46, 50-53 (E.D.N.Y. 1989)

(holding on a motion for summary judgment that a landlord who had

purchased property in a drug infested neighborhood with the

intention of fixing it up, and who, after admitting knowledge of

drug related activities in his building cooperated with police to

try to clean it up, pressed criminal trespass charges against

some drug dealers, and allowed police to tear down fences and

steel doors that the dealers had erected to obstruct

(..continued)
a subset of the other (knowledge), the alternative disjunctive
reading of 6109 Grubb Road renders the knowledge term superfluous
(i.e. once the claimant successfully shows a lack of consent, a
finding of knowledge would become irrelevant). Consequently,
while the redundancy argument does not mandate the 6109 Grubb
Road reading, it does show the impossible textual box that the
statutory language creates.
surveillance, had shown enough for a jury to find that he was an

innocent owner).22

Third, the 6109 Grubb Road construction avoids a

potential constitutional problem with the statute (this third

justification is independent of but related to the second one).

When a landlord cognizant of drug transactions occurring at his

or her property tries to do everything he or she reasonable can

to prevent use of the property in that way, and the drug dealing

continues, forfeiture of the property may be unduly oppressive.

See Calero-Toledo, 416 U.S. at 689-90, 94 S. Ct. at 2094-95.

Not surprisingly, 6109 Grubb Road is now on one side of

a circuit split on the question whether the claimant can achieve

innocent owner status by showing the lack of one of the

conditions. While the Second and Eleventh Circuits have followed

6109 Grubb Road, see United States v. 141st St. Corp., 911 F.2d

870, 877-80 (2d Cir. 1990), cert. denied, 498 U.S. 1109, 111 S.

Ct. 1017 (1991); United States v. One Single Family Residence

Located at 15603 85th Ave. N., 933 F.2d 976, 982 (11th Cir. 1991)

(stating that an owner with actual knowledge that the property

was used or is being used for drug trafficking can keep the

22
. The Second Circuit, however, has set quite a high threshold
for owners in similar situations to show that they took
reasonable steps to prevent the improper use. See United States
v. Two Parcels of Property Located at 19 and 25 Castle Street,
New Haven, CT., 1994 WL 378646 (2d Cir. July 18, 1994) (owners
whose children were using drugs in home and who asked their
children to attend a rehabilitation program, sent some of the
children away, and notified police of narcotics activity in the
neighborhood, did not undertake every reasonable means of
preventing the improper use and were not innocent owners).
property if he can show that "everything reasonably possible was

done" to prevent the taint),23 the Ninth Circuit has adopted the

opposite position, see United States v. One Parcel of Land at Lot

111-B, 902 F.2d 1443, 1445 (9th Cir. 1990) ("[I]f the claimant

either knew or consented to the illegal activities, the `innocent

owner' defense is unavailable."); see also 890 Noyac Road, 739 F.

Supp. at 113-115 (providing a good explanation of the problem

with 6109 Grubb Road); cf. 1989 Jeep Wagoneer, 976 F.2d at 1174

(8th Cir.) (noting the circuit split without not taking a

position on the question).24

23
. See 1012 Germantown Road, 963 F.2d at 1504-05 (11th Cir.)
(interpreting § 881(a)(7)'s innocent owner defense to require
only that the owner prove a lack of knowledge or a lack of
consent; "an owner can avoid forfeiture by proving either
ignorance or non-consent"); United States v. One Parcel of
Property, Located at 755 Forest Road, 985 F.2d 70 (2d Cir. 1993)
("The so-called `innocent owner' defense is an affirmative
defense to be proven by the owner-claimant. It permits an owner
to avoid forfeiture by establishing [by a preponderance of the
evidence] either that [s]he had no knowledge of the narcotics
activity, or if [s]he had knowledge, that she did not consent to
it." (internal quotations omitted)); United States v. Certain
Real Property & Premises Located at 418 57th Street, 922 F.2d
129, 131 (2d Cir. 1990) (reversing a grant of summary judgment
because the "holding in 141st Street mandates consideration of
consent as well as knowledge when adjudicating an innocent owner
defense to drug forfeiture"); United States v. One 107.9 Acre
Parcel of Land, 898 F.2d 396 (3d Cir. 1990) (following 6109 Grubb
Road and denying a non-consent defense on the ground that it was
supported by nothing other than uncorroborated and self-serving
statements).
24
. Indeed subsequent statements in Congress show disagreement
within Congress over whether 6109 Grubb Road misread the statute.
Compare 136 Cong. Rec. 6586, 6594 (1990) (statement of Sen. Dole)
(proposing an amendment to § 881(a)(7) to remedy the
"incorrectness of the [6109 Grubb Road] holding") with 139 Cong.
Rec. S15,612-13 (daily ed. November 10, 1993) (statement of Sen.
Jeffords) (introducing a bill, S. 1655, 103rd Cong. 1st Sess.
(1993), the Civil Asset Forfeiture Reform Act, which changes the
 The upshot of this extended analysis of 6109 Grubb Road

is that, while reasonable people can disagree about its

correctness, 6109 Grubb Road is defensible. The 6109 Grubb Road

construction of the statute sensibly works to the benefit of

people who own property before the illegal act is committed.

However, as we have discussed, 6109 Grubb Road ensures that a

post-illegal-act transferee who did not know of the illegal act

at the time it occurred will always be able to make out the

innocent owner defense, regardless of whether he or she knew

about the taint at the time of the transfer.

The 6109 Grubb Road opinion makes no mention of this

problem. But that is understandable because, at the time 6109

Grubb Road was decided, its construction would have had no effect

at all on the rights of post-illegal-act transferees. At that

time it was generally assumed that because of the "relation back"

provision of the forfeiture statute, 21 U.S.C. § 881(h), which

vested title in the United States at the moment of the illegal

act, a post-illegal-act transferee could never have better title

than the United States and could never benefit from the innocent

(..continued)
language in § 881(a)(7) so that it clearly adopts the 6109 Grubb
Road approach). The Senate bill, S. 1655, is companion
legislation to H.R. 2417, 103rd Cong. 2d Sess. (1993), introduced
in the House by Representative Hyde. The bills propose
dramatically to weaken 21 U.S.C. § 881 and are designed
specifically to reject case law requiring an owner to show a lack
of both knowledge and consent. 139 Cong. Rec. at S15,613 (daily
ed. November 10, 1993) (citing United States v. One Parcel of
Land at Lot 111-B, 902 F.2d 1443, 1445 (9th Cir. 1990) (endorsing
a conjunctive construction of the innocent owner language)).
owner defense.25 In 1993, however, the Supreme Court decided

United States v. Parcel of Land, Bldgs., Appurtenances &

Improvements at 92 Buena Vista Avenue, Rumson, N.J., 113 S. Ct.

1126 (1993), holding that the relation back provision does not

defeat the rights of a post-illegal-act transferee who otherwise

satisfies the requirements for the innocent owner defense under §

881(a)(6). Thus, 92 Buena Vista Avenue has the effect of making

the "knowledge or consent" language of the statute as interpreted

by 6109 Grubb Road applicable to post-illegal-act transferees

and, in turn, creates the problem of insulating certain owners

who one reasonably might not consider to be deserving.

3. Dealing With The Dilemma

One possible solution to this problem would be to

divide potentially innocent owners into two categories, pre-

25
. See Eggleston v. Colorado, 873 F.2d 242, 248 (10th Cir.
1989) (holding that the innocent owner provision could not help
such subsequent owners because they were not owners; "[t]he
innocent owner exception applies only to owners whose interest
vests prior to the date of the illegal act that forms the basis
for the forfeiture"), cert. denied, 493 U.S. 1070, 110 S. Ct.
1112 (1990); In re One 1985 Nissan, 889 F.2d 1317 (4th Cir. 1989)
(holding the same and citing Eggleston and United States v. 6109
Grubb Road, 708 F. Supp. 698 (W.D. Pa. 1989) to support its
conclusion); see also S. Rep. No. 225, 98th Cong., 2d Sess., 196
(1983), reprinted in, 1984 U.S.C.C.A.N. 3182, 3379 ("In civil
forfeitures, such [subsequent] transfers are voidable, for the
property is considered `tainted' from the time of its prohibited
use or acquisition."); United States v. $41,305.00 in Currency &
Traveler's Checks, 802 F.2d 1339, 1346 (11th Cir. 1986)
(suggesting that subsequent bona fide purchasers could not be
innocent owners because of § 881(h)).
illegal-act owners and post-illegal-act transferees, and apply

the 6109 Grubb Road disjunctive test to the first category but

the conjunctive test to the second one.26 That approach is, in

fact, what one federal district court in Florida has followed.

See United States v. One Parcel of Real Estate Located at 6640

S.W. 48th St., 831 F. Supp. 1578 (S.D. Fla. 1993). In 6640 S.W.

48th Street, the court was confronted with essentially the same

problem in this case (except that it was applying § 881(a)(7)).

The court recognized that 92 Buena Vista Avenue created a problem

in applying the innocent owner provision to post-illegal-act

transferees in jurisdictions (including its own) following the

6109 Grubb Road approach, since it realized that under such an

approach, the claimant would be declared an innocent owner

because "[he] could not possibly have consented to . . . the

illegal activities." Id. at 1585. To avoid that result, the

court declined to follow the 6109 Grubb Road approach in such a

26
. Another possible approach would be to treat the term
"consent" as encompassing a notion of retroactive consent. Under
certain circumstances, the law treats consent as operating
retroactively. The concept of ratification in agency law, for
example, allows a principle to be bound by an agent's
unauthorized prior act if he knows about it and fails to take
affirmative steps to disavow the act. See Restatement (Second)
of Agency § 83 (1958). But such a notion of retroactive consent
is a stretch from what is ordinarily meant by the word consent.
Indeed, perhaps because of this, even in agency law the concept
of ratification requires a special relationship and does not
prevent a contracting party from keeping the profits from a
transaction induced by the fraud of a third person if he did not
know of the fraud until after the transaction was completed. Id.
at cmt. c. We therefore believe that, given the absence of any
indication to the contrary from Congress, we should employ the
more conventional definition of consent.
context, and concluded that the consent language should be

ignored altogether when considering a post-illegal-act

transferee: "Consent is simply irrelevant when examining the

innocent owner claims of post-illegal act transferees." Id.

By performing what might be termed an act of judicial

legislation, the court closed a "loophole" in the statute and

prevented post-illegal-act transferees with knowledge at the time

of the transfer of the property's taint from escaping the

forfeiture statute. But the statute simply draws no such

distinction between pre-illegal-act owners and post-illegal-act

transferees. We cannot justify reading the very same language in

a statute disjunctively with respect to one class of owners and

conjunctively with respect to another, in the absence of any

instruction from Congress to do so. The dissent contends that a

failure to draw such a distinction would constitute judicial

abdication, citing cases which require us "to construe a statute

to avoid absurd results, if alternative interpretations are

available and consistent with the legislative purpose." United

States v. Schneider, 14 F.3d 876, 879-80 (3d Cir. 1994) (citing

Griffin v. Oceanic Contractors, 458 U.S. 564 (1982)). The

obligation as expressed in these cases does not involve or

support, however, reading statutory language differently in the

absence of a justification in either the language of the statute

or the legislative history. In this case, there is no such

instruction in either the statute or legislative history.

Given that the language of the statute as interpreted

by 6109 Grubb Road favors Goodman in this context, we are faced
with, at the very least, an ambiguity in the statutory language.

Because § 881(a)(4) is punitive and quasi-criminal in nature, see

Austin v. United States, 113 S. Ct. 2801, 2810-2811 (1993)

(holding that §§ 881(a)(4) and 881(a)(7) are punitive in nature),

we must apply the rule of lenity, which requires us to resolve

the ambiguity in favor of the claimant, see United States v.

Thompson/Center Arms Co., 112 S. Ct. 2102, 2110 & n.10 (1992)

(applying the rule of lenity in construing a punitive tax statute

in a civil setting).27 Thus, on remand, if Goodman can show that

he did not know that the Rolls Royce was being used or going to

be used in the DiSalvo or Ianarella meetings at the time they

took place, then he will be able to show that he did not consent

to the use and, under 6109 Grubb Road, will be entitled to the

innocent owner defense.

We might be tempted to draw a similar distinction to

that drawn by the court in 6640 S.W. 48th Street despite the

absence of any guidance from Congress if the result we have

reached here were unreasonable. But it is not unreasonable to

think that post-illegal-act transferees of property interests

would not be subject to forfeiture, at least with respect to §§

881(a)(4) and (7) forfeitures. The principal goal of §§

881(a)(4) and (7), which are aimed at forfeitures of property

used to facilitate drug trafficking, is to give owners of

property an incentive to prevent use of that property in the drug

27
. See also id. at 2114 (Stevens, J. dissenting) ("The main
function of the rule of lenity is to protect citizens from the
unfair application of ambiguous punitive statutes.").
trade. People who are not owners at the time the act is

committed are simply in no position to prevent the improper use.

Penalizing such owners would do little to accomplish the ends of

those forfeiture statutes.28

Moreover, at a much more fundamental level, the Court's

decision in 92 Buena Vista Avenue creates substantial doubt that

post-illegal-act transferees without knowledge of the illegal act

until after it happened are within the scope of the forfeiture

statutes. In 92 Buena Vista Avenue, the Court discussed, in

dicta, the question whether such owners were within the scope of

§ 881(a)(6). Although the plurality suggested that equitable

principles (and not the statutory language) might prevent a post-

illegal-act transferee with knowledge of the illegal act at the
28
. This argument is somewhat suspect if 6109 Grubb Road applies
to § 881(a)(6), since § 881(a)(6)'s language providing for
forfeiture of all "proceeds traceable" to drug transactions
appears to include within its scope property in the hands of
post-illegal-act transferees. See 124 Cong. Rec. 23,057 (1978)
(remarks of Sen. Nunn) (explaining the rationale for § 881(a)(6)
was "to make it clear that a bona fide party who has no knowledge
or consent to the property he owns having been derived from an
illegal transaction [would not have the property forfeited]");
id. at 23,056 (remarks of Sen. Culver) (describing the provision
as reaching property traceable to illegal proceeds); id. at
34,667 (remarks of Sen. Culver) ("This amendment would authorize
Federal officers to seize such moneys much as they now seize
illicit drugs and vehicles that are used to transport or conceal
these substances. In certain cases they would also be able to
seize property that is traceable to such illegal transactions.");
see also S. Rep. No. 98-225, 98th Cong., 2d Sess. 195-96,
reprinted in 1984 U.S.C.C.A.N. 3182, 3378-79 (describing that
part of the forfeiture scheme is to reach property that has been
transferred by one involved in drug trafficking to avoid
forfeiture). Perhaps because § 881(a)(6) appears to reach post-
illegal-act transferees, we have been unable to find a court of
appeals decision that squarely applied the 6109 Grubb Road
analysis in the context of § 881(a)(6) forfeiture.
time of the transfer from having the benefit of the innocent

owner defense, it ultimately avoided the issue by stating that

"respondent has assumed the burden of convincing the trier of

fact that she had no knowledge of the alleged source of [the

property]." 113 S. Ct. at 1137. In a concurring opinion,

however, Justice Scalia stated that it would not be absurd to

think that the forfeiture statutes did not reach post-illegal-act

transferees who knew about the act creating the taint at the time

of transfer, but not at the time it occurred:
I do not find inconceivable the possibility
that post-illegal-act transferees with post-
illegal-act knowledge of the earlier
illegality are provided a defense against
forfeiture. The Government would still be
entitled to the property held by the drug
dealer and by close friends and relatives who
are unable to meet their burden of proof as
to ignorance of the illegal act when it
occurred.

92 Buena Vista Avenue, 113 S. Ct. at 1142 (Scalia, J.,

concurring). If Justice Scalia is right, allowing post-illegal-

act transferees with post-illegal-act knowledge to be outside the

scope of the forfeiture statute is defensible, and thus a

straightforward application of 6109 Grubb Road to post-illegal-

act transferees would not create an absurd result.29

29
. It is important to note that the discussion in 92 Buena
Vista was focused on defining "knowledge" under the innocent
owner defense, i.e., on whether "knowledge" meant pre-illegal-act
knowledge. Thus 92 Buena Vista suggests that a post-illegal-act
transferee with post-illegal-act knowledge would be beyond the
reach of the forfeiture statutes for reasons wholly independent
of the 6109 Grubb Road construction of the statute. We do not
suggest that 92 Buena Vista directly validates the 6109 Grubb
Road construction. Rather, we refer to 92 Buena Vista in this
 In his dissent in 92 Buena Vista Avenue, Justice

Kennedy complained that "the plurality's opinion leaves the

forfeiture scheme that is the centerpiece of the Nation's drug

enforcement laws in quite a mess." In the context of the present

case, Justice Kennedy was only partially right. It is not so

much the plurality's opinion in 92 Buena Vista Avenue that leaves

the civil forfeiture laws in chaos, nor for that matter is it

this court's interpretation of the statute in 6109 Grubb Road.

In our estimation, the problem originated in Congress when it

failed to draft a statute that takes into account the substantial

differences between those owners who own the property during the

improper use and some of those who acquire it afterwards.

Although a schizophrenic reading of the text might solve the

problem, the better solution, we believe, is to apply 6109 Grubb

Road. Congress should redraft the statute, if it desires a

different result. The judgment of the district court will be

vacated and the case remanded for further proceedings consistent

with this opinion.

(..continued)
context to show that the result that 6109 Grubb Road invites is
not unreasonable.
United States v. One 1973 Rolls Royce, No. 93-1417

NYGAARD, Circuit Judge, dissenting:

I disagree with my colleagues that we should be

controlled in how we interpret § 881(a)(4)(C) by United States v.

6109 Grubb Road, 886 F.2d 618, 623-626 (3d Cir. 1989) and the

conclusion they reach; that a purchaser of property, forfeitable

in the seller's hands, need only show either a lack of knowledge

or a lack of consent to raise an "innocent owner" defense under §

881(a)(7), and thereby shield the property from forfeiture.

Indeed, the majority's holding completely nullifies the

"willful blindness" provision of that section, because a

purchaser who is ignorant of a property's illicit use, whether

willfully or innocently, can logically neither grant nor deny

consent to how his predecessor used it. Moreover, one can

neither deny nor give consent to the use of property unless one

has either ownership or control, or for that matter, some legally

cognizable interest in it. Hence, applying Grubb to willfully

blind, post-illegal act transferees will create a virtual

windfall for them, because they cannot lose. Following the

majority's conclusion, one such as Goodman may purchase a

mobster's car, knowing it to have been used to facilitate drug

trafficking, with full confidence that it is shielded from

forfeiture because he did not give the mobster his consent to use

the property illicitly.
 The majority reaches its conclusion because it is

unable to reconcile the district court's holding with Grubb,

involving § 881 (a)(7) and United States v. 92 Buena Vista., 113

S.Ct. 1126 (1993), which interpreted § 881 (a) (6) and (h). In

reversing the district court, which held that Grubb does not

apply to forfeitures under § 881(a)(4)(C), the majority concludes

that under Grubb Goodman could invoke the innocent owner defense

if he did not consent to his predecessor-in-title's use of the

Rolls Royce to facilitate illegal drug transactions; this despite

willfully blinding himself to that very fact.

I simply do not believe that Grubb even applies to

post-illegal-act property purchasers who are aware of or

willfully blind to their property's past use in facilitating

illegal drug transactions. Neither Grubb nor Buena Vista

applies to post-illegal-act transferees and neither interprets §

881 (a)(4)(c). The "willful blindness" language unique to §§

(a)(4)(C) requires us to interpret the innocent owner defense of

that section differently from subsections that do not contain the

willful blindness language; for example §§ (a)(6)&(7). I would

disallow knowing or willfully blind purchasers of otherwise

forfeitable property from invoking the innocent owner defense,

and not expansively apply Grubb to these facts when it clearly is
not warranted.

I also reject the majority's resignation that only

Congress can cure this difficulty. This, I fear, is more an act
of judicial abdication than judicial restraint. I believe we are

obligated to make sense of the statute and avoid a result that

contradicts its purpose. It may be true, as my colleagues

suggest, that the problem should be remedied by Congress. I

suggest, however, that we cannot hide so easily. We are

obligated to construe the statute to avoid absurd results if

alternative interpretations are available, plausible and

consistent with its purpose. United States v. Schneider, 14 F.3d

876, 879-80 (3d Cir. 1994)(citing Griffin v. Oceanic Contractors,

Inc., 458 U.S. 564 (1982)).

In sum, according to my colleagues'

"straightforward" conclusion, condensed at page 8 of their

Opinion (Maj. typsc. p. 8) , in Goodman's case he need only show

that he did not consent to the Rolls Royce's illicit use, and is

then entitled to innocent owner status. I believe, however,

their analysis contravenes both logic and Congress' very purpose

in promulgating § 881, that is, to curb illegal drug activity. I

must respectfully dissent.

I.

First, however, I conclude that the district

court applied the correct standard in

assessing whether Goodman was willfully blind

within the meaning of § 881(a)(4)(C). The

test employed by the district court was not a

negligent or an objective due care standard,
 nor was it inconsistent with our precedent

defining willful blindness. With no case of

this court directly on point, the district

court developed its own standard:
Lack of willful blindness sufficient to
prevail as an innocent owner under
§ 881(a)(4)C) means that a claimant must show
that he or she has not ignored a signal or
suggestion that a vehicle might have been
used to facilitate the trafficking of illegal
drugs . . . . [O]nce the claimant chooses to
ignore the signal, he or she can no longer
establish lack of willful blindness to the
prior use of the vehicle that would subject
it to forfeiture.

I would conclude that the district court's standard for

establishing willful blindness is consistent with United States

v. Caminos, 770 F.2d 361, 365 (3d Cir. 1985), in which we said

that a "deliberate ignorance" jury charge "[m]ust make clear that

the defendant himself was subjectively aware of the high

probability of fact in question, and not merely that a reasonable

man would have been aware of the probability."

Ultimately, the district court made a subjective
inquiry into Goodman's state of mind when it found that he

ignored rather obvious signals or suggestions that the Rolls

Royce was legally infected and subject to forfeiture when he

acquired it. As the district court found, Goodman knew of

Scarfo's illegal activities. Moreover, that he had

countersurveillance equipment removed from the vehicle further

suggests that he was continually aware that it was legally
tainted after the transfer. On this basis, the trial judge made

a clear credibility determination against Goodman's claim, "that

he had absolutely no indication [that] the Rolls Royce was ever

utilized to facilitate drug trafficking", and found his testimony

to be incredible. I conclude the district court employed a

subjective standard and found that Goodman was willfully blind,

to which we must defer in the absence of clear error. I would

affirm both the district court standard and its subjective

assessment that Goodman was willfully blind.

II.

Second, Grubb held, in the context of § 881(a)(7),

another drug forfeiture subsection, that an owner who knows a

vehicle is legally contaminated will still be considered an

innocent owner upon showing that he or she did not consent to its

drug-trafficking use. From similarities between § 881(a)(4)(C)

and other drug forfeiture subsections, particularly §§ 881(a)(6)

and (a)(7), and because we rendered a disjunctive reading of §

881(a)(7) in 6109 Grubb Road, the majority concludes that §

881(a)(4)(C) should also be read disjunctively.

Section 881(a)(4)(C), however, contains the willful

blindness language found in neither §§ 881(a)(6) nor (a)(7),

civil forfeiture subsections which only provide for an innocent

owner defense when there is a lack of knowledge or a lack of

consent. Moreover, the legislative history establishes that §
881(a)(4)(C)'s willful blindness language is not mere surplusage

and should not be treated as such.

If we apply Grubb to forfeitures under § 881(a)(4)(C)

involving willfully blind, post-illegal act transferees, we

wholly disregard § 881(a)(4)(C)'s willful blindness language and

Congress' intent to prevent willfully blind owners from invoking

the innocent owner defense. If a claimant fails to prove lack of

willful blindness, but can alternatively prevail by satisfying

the sure-winner defense for a non-owner -- lack of consent --

then the willful blindness language becomes utterly nullified.

A disjunctive reading of § 881(a)(4)(C)'s "knowledge,

consent or willful blindness" brings the language into direct

conflict with itself, thus producing an absurd result with

respect to willfully blind subsequent owners. Nevertheless, the

majority applying Grubb, holds that Goodman should be allowed to

prove his innocent ownership based on lack of consent. Since

consent involves an owner's acquiescence to the property's use in

drug trafficking, Goodman, as a subsequent owner or transferee,

will always be able to show a lack of consent if he had no legal

interest in or control of the Rolls Royce when it was used to

facilitate the drug transaction.

As a result, any finding that Goodman was willfully

blind to the vehicle's taint when he received it is useless,

because if "blind," whether willfully or ignorantly, he did not
know and could not give or deny his consent, even if somehow

authorized or empowered to do so. In other words, willful

blindness conceptually presupposes the absence of knowledge and

consent. When an owner fails to prove that his lack of knowledge

is not the result of willful blindness, the less stringent

standards for proving lack of knowledge and lack of consent are

then irrelevant.

The premise of Grubb is that the language of §

881(a)(7), (no property shall be forfeited "by any reason of any

act or omission established by that owner to have been committed

or omitted without the knowledge or consent of that owner")

should be read disjunctively because of Congress' use of the

traditionally disjunctive word "or." According to Grubb's

analysis of § 881(a)(7), Congress' use of the word "or" implies

that each provision to which it refers should be given

independent weight. Yet, by a disjunctive reading of § 881

(a)(4)(C), a subsequent owner who avoids investigating an obvious

possibility that his or her property is forfeitable in the hands

of the transferor, will always be able to establish innocent

owner status because of his or her lack of consent. In sum, a

disjunctive interpretation of § 881(a)(4)(C) is tantamount to

ignoring the willful blindness language of that subsection. I do

not read it that way.

The district court also remedied this problem by

refusing to apply Grubb to cases involving willfully blind, post-
illegal act transferees. The district court differentiates

between owners who use their property to facilitate drug

trafficking, where application of Grubb would make sense; and

willfully blind post-illegal-act transferees, where its

application would not. I would too. The import of this

differentiation is that we should not blindly read the "or" in §

881(a)(4)(C) disjunctively, but rather, should examine the

context in which "or" is used, because in some circumstances "or"

does not apply or should be read as "and". Reiter v. Sonotone

Corp., 442 U.S. 330, 339 (1979)(terms connected by a disjunctive

word must be given their separate meanings unless the context

dictates otherwise); see also United States v. Smeathers, 884

F.2d 363-64, (8th Cir. 1989)(citing United States v. Moore, 613

F.2d 1029, 1040 (D.C.Cir. 1979))(the word "or" connotes

disjunction except when a disjunctive reading would frustrate

legislative intent).

Finally, Buena Vista does not create doubt that post-

illegal act transferees, aware of a property's taint at the time

of its conveyance or thereafter, should benefit from the

forfeiture statutes' innocent owner defenses. Section 881

codifies the common law relation back doctrine, as defined by the

Supreme Court in United States v. Stowell, 10 S.Ct. 244, 247
(1889), which prevents the possibility of a post-illegal act

transferee invoking the innocent owner defense, because title to
a defendant's property vests in the government at the time the

drug crime occurs.

In Buena Vista, the Supreme Court purposely did not

address whether post-illegal act transferees could invoke the

innocent owner defense because in that case the "respondent . . .

assumed the burde

n of convincing the trier of fact that she had no knowledge of

the alleged source of [the property]." Buena Vista, 113 S.Ct. at

1137. Hence, consideration of whether post-illegal act

transferees, aware of a property's taint only at the time of

conveyance or thereafter, was not central to the Court's

analysis. The Court did, however, address the issue in dictum,

but then leaned away from the majority position here. It stated

that equitable doctrines may foreclose the assertion of the

innocent owner defense by a post-illegal act transferee "with

guilty knowledge of the tainted character of a property." Id.

In sum, given the legislative history of § 881

(a)(4)(C)'s willful blindness language and Buena Vista's

instructional dictum about foreclosing the innocent owner defense

for willfully blind subsequent owners and transferees, the

district court did not err by concluding that Grubb does not
apply to purchasers of forfeitable property. Section

881(a)(4)(C)'s "knowledge, consent or willful blindness" language

requires a conjunctive reading to prevent conflict among the

provisions, because consent to the vehicle's use in drug activity
is irrelevant if one is a willfully blind post-illegal act

transferee. Then too, given the district court's finding of

willful blindness alone, Goodman was precluded from making an

innocent owner defense under that subsection's other provisions.

I conclude that the subject vehicle was properly forfeited and

so, dissent.