United States v. Four Parcels of Real Property

TJOFLAT, Chief Judge,

dissenting:

In this civil forfeiture case, the Government appeals the district court’s grant of summary judgment in favor of the claimant, Donald Daniel. The Government contends that genuine issues of material fact exist and requests that we remand the case for further proceedings, including discovery. The majority, however, rejects the Government’s argument, holding that the Government’s evidence is insufficient as a matter of law to send the case to a jury. In the majority’s view, “[i]f the evidence offered by the government here is sufficient to cause the forfeiture of property, the property of any friend of a drug trafficker would be subject to forfeiture simply because a purchase was made with cash.” Ante at 1251. I disagree with this conclusion and therefore dissent.

I.

Under Federal Rule of Civil Procedure 56(c), a court should grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In deciding a motion for summary judgment, the district court should consider the evidence in the light most favorable to the nonmoving party and draw “all justifiable inferences ... in his favor.” Everett v. Napper, 833 F.2d 1507, 1510 (11th Cir. 1987). A party is “entitled to ‘judgment as a matter of law’ ” only when “the nonmov-ing party fails to make a sufficient showing of an essential element of the case to which the nonmoving party has the burden of proof.” Id. The nonmoving party fails to make such a showing when its evidence is “insufficient... to require submission of the case to a jury.” Id. In my view, if the district court, as well as the majority today, had properly applied these standards they would certainly have found that genuine issues of material fact existed and that the Government’s evidence required submission of the case “to a jury.”

In order to apply these summary judgment standards, an understanding of the civil forfeiture statute here at issue is necessary. Under 21 U.S.C. § 881(a)(6) (1982), “all proceeds traceable to ... an exchange [for a controlled substance] ... shall be forfeited under this paragraph.” Section 881(b) provides that “[a]ny property subject to forfeiture to the United States under [section 881(a) ] may be seized by the Attorney General upon process issued pursuant to the Supplemental Rules for Certain Admiralty and Maritime Claims [of the Federal Rules of Civil Procedure] by any district court of the United States having jurisdiction over the property.” Under Supplemental Rule C(3), “[i]n actions by the United States for forfeitures for federal statutory violations, the clerk, upon filing of the complaint [as provided in subsection (2)], shall forthwith issue a summons and warrant for the arrest of the ... property.” 1 *1253Section 881(b) also authorizes seizure without process in four situations, including when “the Attorney General has probable cause to believe that the property [is subject to civil forfeiture under] this subchap-ter.”

This court has interpreted section 881’s probable cause requirement as “probable cause to believe that a substantial connection exists between the property to be forfeited and an illegal exchange of a controlled substance.” United States v. Single Family Residence & Real Property Located at 900 Rio Vista Blvd., Ft. Lauderdale, 803 F.2d 625, 628 (11th Cir. 1986). As this court has emphasized, the Government need not prove that such a substantial connection actually exists; it need only show “probable cause for belief” that such a connection exists. United States v. $4,255,000.00, 762 F.2d 895, 903 (11th Cir. 1985) (quoting United States v. $364,960.00 in United States Currency, 661 F.2d 319, 323 (5th Cir. Unit B Nov. 1981)).2 This court, moreover, has defined probable cause as a “ ‘reasonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspicion’ — the same standard used to determine the legality of arrests, searches, and seizures in criminal law.” United States v. Four Parcels of Real Property on Lake Forrest Circle in Riverchase, Shelby County, Ala., 870 F.2d 586, 590 n. 10 (11th Cir.1989) (quoting $364,960.00, 661 F.2d at 323). Furthermore, as the court reiterated in Single Family Residence, “[t]he existence of probable cause is judged ‘not with clinical detachment, but with a common sense view to the realities of normal life.’ ” 803 F.2d 628 (quoting $4,255,000.00, 762 F.2d at 904).

Once the Government has shown probable cause under these standards, the burden of proof shifts to parties claiming an entitlement to the property at issue, who must then establish the property’s innocence. Thus, in a section 881(a)(6) forfeiture case involving property alleged to be “proceeds traceable” to a drug transaction, the claimant must show that the funds used to purchase the property were not proceeds of drug transactions.

II.

Given this statutory framework, the district court could have granted summary judgment in these cases on two possible grounds: either (1) because as a matter of law, the evidence was insufficient to establish that the Government had probable cause and to shift the burden of proof to the claimant; or (2) because based on all of the evidence in the record, even if the Government had probable cause, no genuine issue of material fact existed that the claimant purchased the dozer with non-drug-related funds. The district court, however, did not base its decision on either ground, holding instead that “the factual and legal allegations of the complaint are simply inadequate to authorize forfeiture under ... 21 U.S.C. Section 881.” Thus, in granting summary judgment, the district court did not even consider whether the Government’s evidence could establish probable cause. Rather, the court determined that the Government had failed to allege in its complaint the elements of a civil forfeiture action under section 881(a)(6).3 The majority today affirms this *1254holding. It also holds, under the two grounds described above, that the evidence was insufficient to satisfy the Government’s probable cause requirement and that even if the evidence were not insufficient to do so, no genuine issue of material fact existed that Daniel purchased the doz-er with non-drug-related funds. I find both the district court’s and majority’s positions to be insupportable and discuss them in turn.

A.

In my view, the Government’s complaint clearly alleged the elements of a civil forfeiture action under section 881(a)(6). The gist of the district court’s position, as the majority reiterates, ante at 1250, is that in the paragraph of the complaint describing the dozer, the Government omits the formulaic language appearing in the paragraphs of the complaint describing the other property at issue. That language expressly refers to section 881(a)(6), states that the property was purchased with proceeds of narcotics trafficking, and claims that it is subject to forfeiture. Without this language, in the district court’s view and apparently the majority’s as well, the Government cannot make out a section 881(a)(6) claim.

If the district court and majority had focused on what the Government’s complaint does say, rather than on what it omits to say, they surely would have concluded that the complaint is sufficient to allege a section 881(a)(6) claim. To begin with, the complaint immediately states in paragraph one: “This is a civil action for forfeiture pursuant to Title 21, United States Code, Section 881(a)(6).” That statement leaves no room for doubt about the statutory basis for the Government’s forfeiture claim regarding the dozer, even if the paragraphs describing the dozer fail to cite the section. In addition, paragraphs seven and eight clearly indicate that the Government has alleged that the dozer was purchased with drug proceeds. Paragraph seven states that Pate bought the dozer with $65,000 in cash. Paragraph eight then states that Pate actively imported narcotics and that Pate’s tax returns show insufficient income to provide him with large amounts of currency such as the $65,-000 “expended as set forth in paragraph ] ... 7.” These statements clearly allege that the dozer was purchased with proceeds from drug transactions. Based on what the complaint does say, therefore, the Government establishes a claim that the dozer is forfeit under section 881(a)(6).4

B.

In addition to its position on the insufficiency of the Government’s complaint, the majority concludes that summary judgment was warranted as a matter of law because the Government’s evidence was insufficient to establish probable cause and to shift the burden of proof to the claimant.5 The majority then determines that, even if the Government had established probable cause, Daniel has shown “a legitimate source for the funds used to purchase the dozer and a legitimate business purpose for its use,” ante at 1251, thus rebutting the Government’s case. I disagree with these determinations. In my view, Daniel is not entitled to summary judgment: based on all of the evidence in the record, taken in *1255the light most favorable to the Government and supporting all justifiable inferences in the Government’s favor, the district court could not say that the Government’s case was insufficient as a matter of law and that no genuine issue of material fact existed regarding the source of the funds used to purchase the tractor. In support of my position, I outline the analysis that both the district court and majority should have conducted: I set forth the evidence in the record and consider the inferences drawable from that evidence in order to determine whether the claimant was entitled to summary judgment.

1. The Evidence.

a.IRS Agent Brunson’s affidavit.

The first piece of evidence in the record is the affidavit of IRS Agent Brunson, which the Government submitted with its complaint. In this affidavit, Brunson states that he is an IRS agent involved in the Organized Criminal Drug Enforcement Task Force and its investigation of Pate. Brunson then states that Pate was actively engaged in drug trafficking from August 1981 through October 1984 and that Pate conducted at least fifty drug transactions over that three year period (which averages seventeen transactions per year or one every three weeks). Brunson further states that Pate had a pattern of purchasing assets with grocery bags full of currency and that Pate purchased the dozer at issue in this case in exactly that manner. According to Brunson, Pate also purchased the dozer in the name of Bobby Daniel, the brother of Donald Daniel, the claimant in this case. Based on this affidavit, a reasonable factfinder could justifiably infer that Pate purchased the dozer for himself with drug proceeds.

b.Daniel’s answer.

The second piece of evidence in the record is Donald Daniel’s answer to the Government’s complaint. In that answer, Daniel asserts that he is the dozer’s sole and exclusive owner. In addition, he “denies that said property was purchased by or for J.C. Pate, Jr., and further denies that said J.C. Pate, Jr. has any interest in or claim to said property.” (Emphasis added.) This denial thus states that Pate did not purchase the dozer, either for himself or for Daniel, and implies that Daniel purchased it himself and for himself. The denial also implies that a distance existed between Daniel and Pate, at least for purposes of this transaction involving the doz-er: Daniel took care of the transaction, and Pate had absolutely nothing whatsoever to do with it or with the dozer in general.

c.Daniel’s motion for judgment on the pleadings.

In his motion for judgment on the pleadings, Daniel contends that the Government’s complaint fails to allege that the dozer is forfeit pursuant to section 881 or pursuant to subsection (a)(6) in particular, an argument that I discuss and dispel above. Daniel further argues that the doz-er is not the type of property subject to forfeiture under section 881 and thus that the statute simply does not apply. Daniel also asserts lawful ownership of the dozer and contends that the complaint made no allegation that he was a drug trafficker.

d.Donald and Dorothy Daniel’s affidavits.

In support of his motion for summary judgment, Daniel submits two affidavits, one from Dorothy Daniel, his sister and bookkeeper, and one from himself. Dorothy Daniel, in her affidavit, states that she processes the financial transactions of her brother’s lumber business, most of which are in cash. She then states that on August 9, 1983, her brother brought $65,-000.00 in cash to her house and told her to give it to Pate. According to Dorothy, her brother gave no indication of the transaction’s purpose. On August 18, a bill of sale in Bobby Daniel’s name arrived in the mail from Pate. Donald Daniel subsequently told Dorothy that the bill of sale was for a dozer and that Bobby’s name was a mistake. Dorothy states that she cleared up the mistake by having Bobby sign a statement and by erasing his name on the bill of *1256sale and typing in Donald’s name. She further indicates that Donald’s business has depreciated the dozer.

On its face, this affidavit signals a reversal in Daniel’s position. Whereas Daniel denies in his answer that Pate bought the dozer, according to this affidavit Pate did buy the dozer after all. Moreover, this affidavit implies that the relationship between Daniel and Pate, especially in purchasing the dozer, was quite close: Daniel would not give $65,000.00 in cash to just anyone; he must have trusted Pate a great deal.

Dorothy Daniel’s affidavit also indicates that she attempted to keep careful business records. She meticulously corrected the bill of sale problem, having Bobby sign a statement, carefully erasing his name, and retyping Donald’s. In addition, she indicated that the dozer was depreciated in the business’ books. Other evidence in the record, however, leads to an inference that Dorothy’s records are not that reliable. To begin with, her seemingly meticulous recordkeeping is inconsistent with a casual transfer of $65,000.00 in cash to Pate without any information about the transaction’s purpose, let alone any record of it until the mistaken bill of sale arrived by mail. Moreover, if Dorothy truly kept careful books, then her records of course would have included information about the previous dozer purchased by Pate for Daniel, which they traded in for the new dozer, as Daniel describes in his affidavit. Dorothy, however, makes no mention of the history behind the dozer transaction. As these inconsistencies indicate, this affidavit presents credibility questions.

Donald Daniel's affidavit also raises questions. Daniel begins by providing details about Pate’s role in purchasing the dozer. Daniel describes the history of their dozer purchases, all made in cash by Pate. Daniel also mentions that Pate operated the dozers for Daniel, and without monetary compensation. When Pate thought the old dozer needed repairs, he hauled it in, and when Pate concluded the dozer was not worth repairing, he negotiated the purchase of a new one. Daniel then arranged the transfer of $65,000.00 in cash to Pate so that Pate could purchase the new dozer for Daniel. About a week later, as Daniel describes, a bill of sale came by mail for the new dozer in Bobby Daniel’s name.

I find this story troublesome. At the outset, the affidavit flatly contradicts Daniel’s answer to the Government’s complaint. Daniel has thus lied either in his answer or in his affidavit, and in either case, this casts serious doubt on his credibility. At the very least, Daniel has demonstrated a reluctance to provide details about his relationship with Pate. This reluctance might well imply a desire to hide something. If Daniel and Pate were close — a reasonable inference from Daniel’s affidavit — then Daniel would probably know that Pate was a drug dealer and Daniel would want to hide his association with Pate while making his claim for the dozer.

The affidavit, when taken alone, also suggests inconsistencies in Daniel’s story. Consider this: Pate works closely with Donald Daniel, buying, operating, maintaining, and trading in Daniel’s dozers; Donald Daniel gives Pate large sums of money in cash for the purchase of a new dozer; Pate goes out and purchases the dozer for Donald Daniel but puts the bill of sale in Bobby Daniel’s name. I find it very difficult to believe that Pate could have worked so closely with Donald Daniel, taken $65,-000.00 in cash from Donald Daniel expressly for the purpose of buying a new dozer, and then mistakenly put the bill of sale in someone else’s name. At the very least, this story raises credibility questions.

e. FBI Agent McArthur’s affidavit.

The next piece of evidence in the record is an affidavit of special FBI Agent McAr-thur, submitted by the Government in opposition to Daniel’s summary judgment motion. McArthur, like IRS Agent Brunson, was a member of the Organized Crime Drug Enforcement Task Force and was involved in the investigation of Pate. In his affidavit, McArthur states that he has knowledge of how drug traffickers conceal their assets and income: for example, by using cash and purchasing property in oth*1257er persons’ names. He then states that Pate pleaded guilty to a charge of managing a continuing criminal enterprise from 1981 to 1985. McArthur also describes how Pate used cash to purchase property (including several dozers) in other people’s names. In regard to the dozer at issue in this case, McArthur says that he has seen photos seized by search warrant from Pate’s residence and that those photos show the dozer parked on Pate’s property as well as Pate driving it. Finally, McAr-thur recounts his 1988 interview of Michael Lancaster, a long-time associate of Pate’s. According to McArthur, Lancaster said that he assisted Pate in purchasing appurtenances for the dozer at issue, that Pate had been using the dozer to do some work on Lancaster’s land, and that Lancaster understood the dozer to belong to Pate. McArthur adds that the dozer was seized on Lancaster’s property.

Taken in the light most favorable to the Government and drawing all justifiable inferences supporting the Government’s position, this affidavit suggests that the dozer was Pate’s. Pate’s purchase of the dozer was consistent with his general purchasing pattern — a means of concealing his illegal income and assets; and Pate’s associate, who assisted Pate in purchasing appurtenances for the dozer, thought the dozer belonged to Pate. Indeed, the affidavit states that Pate did in fact have control of the dozer: he drove it and parked it on his property. Based on that control, a justifiable inference is that Pate, and not Daniel or anyone else, owned the dozer.

f. Daniel’s counter-affidavit.

In my view, Daniel’s counter-affidavit, filed in response to McArthur’s affidavit, itself supports this inference. In this second affidavit, Daniel provides some information about his relationship with Pate and Pate’s role with respect to the dozer — information that for some reason Daniel neglected to disclose in his prior affidavit and, of course, in his answer to the Government’s complaint. He declares that Pate transported the dozer to the work sites and had general responsibility for its operation. In return for Pate’s work, Daniel provided no monetary compensation but instead allowed Pate to use the dozer for Pate’s own jobs. Daniel concludes his affidavit by reemphasizing that the dozer was purchased with his own money.

2. The Analysis.

This last affidavit, in conjunction with the other evidence, establishes the following facts: Pate bought a dozer with a large sum of money in cash and in someone else's name, and'Pate exercised control of that dozer. These facts appear to be uncontested (excluding Daniel’s answer, which contests the first fact); Daniel’s affidavits as well as the Government’s admit them. In addition to these facts, the record establishes that Pate is a convicted drug trafficker and that he had a habit of making cash purchases of property in other people’s names in order to conceal his illegal assets and income. The record also includes a story by Donald Daniel, who claims to own the dozer and to have paid for its purchase (by Pate in cash) with legal proceeds from his logging business. This story, as I have discussed, is internally inconsistent and raises questions of credibility.

Reviewing this evidence under the summary judgment standards — that is, in the light most favorable to the Government and drawing justifiable inferences supporting the Government’s position — I cannot understand how the district court could have concluded that no genuine issue of material fact existed and that Daniel was entitled to judgment as a matter of law. Under these standards, the evidence is not insufficient as a matter of law to show that the Government had probable cause to believe the dozer was purchased with proceeds of drug transactions. Pate, a convicted drug trafficker with a habit of making cash purchases of property in other persons’ names, bought the dozer at issue with cash and in another person’s name. Moreover, as the Government’s complaint alleges, Pate’s tax return showed insufficient legal income to support such a cash expenditure. In my view, that evidence is *1258sufficient to withstand Daniel’s motion for summary judgment.

In addition, genuine issues of material fact most certainly do exist regarding Daniel’s claim to the dozer. Daniel’s story, as developed through his affidavits, is, quite simply, unbelievable. When taken in the context of the other evidence in the record, that story does not make the kind of showing necessary for a grant of summary judgment.

III.

For the foregoing reasons, I respectfully dissent from the majority’s disposition of this case. In my opinion, the district court’s grant of summary judgment should be vacated.

. This provision applies only in "actions by the United States for forfeitures for federal statutory violations." In other actions — that is, forfeiture actions not based on federal statutory violations — the section requires the court to review a "verified complaint and any supporting papers” and to determine that "the conditions for an action in rem appear to exist” before issuing an order authorizing a warrant for arrest of the property at issue.

Supplemental Rule C(2), which sets out the requirements for complaints in actions in rem, also distinguishes between "actions for the enforcement of forfeitures for violation of any statute of the United States” and actions not based on such statutory violations. In the former, the complaint need only state the place of seizure and "contain such allegations as may be required by the statute pursuant to which the action is brought.” In the latter type of action, however, the complaint must also be verified "on oath or solemn affirmation.” Although section 881(b) expressly refers to the Supplemental Rules in discussing seizure of property, the section makes no such reference to those Rules regarding the requirements for a complaint in a civil forfeiture action under the section. Nevertheless, a panel of this court has held that Rule C(2) (along with Supplemental Rule E(2), which further requires that “the complaint shall state the circumstances from which the claim arises with such particularity that the defendant or claimant will be able, without moving for a *1253more definite statement, to commence an investigation of the facts and to frame a responsive pleading") applies to forfeiture actions under section 881(a). United States v. $38,000.00 in U.S. Currency, 816 F.2d 1538, 1547-48 (11th Cir.1987).

. In Stein v. Reynolds Sec., Inc., 667 F.2d 33 (11th Cir.1982), this court adopted as binding precedent all decisions of Unit B of the former Fifth Circuit handed down after September 30, 1981.

. Prior to entering its summary judgment order, the court had clearly considered this case under section 881(a)(6), and that section alone. For example, in its order to issue a warrant for seizure of property including the dozer, the district court explicitly addressed the issue of "forfeiture pursuant to 21 U.S.C. § 881(a)(6)" without even mentioning any other possible subsection of that statute. For some reason, however, the court changed tack while entertaining the summary judgment motion. In its memorandum opinion granting summary judgment for the claimant, the court considered in turn the applicability of every provision of section 881(a). Not surprisingly, the court concluded that provisions (a)(l)-(5) and (7) — (8) did not *1254apply to the property at issue. Finally, the court concluded that the Government had not alleged the elements of a claim under (a)(6) either.

. Compare the complaint at issue in United States v. $38,000.00 in U.S. Currency, 816 F.2d 1538, 1547-48 (11th Cir.1987), which the court dismissed pursuant to Supplemental Rule E(2). As a factual basis, that complaint stated merely that the DEA agents seized currency at the Atlanta airport from an individual named Woods. The complaint in the present case contains a much greater degree of factual detail.

. Curiously enough, the district court had already made a determination on this probable cause issue. When the Government moved the district court pursuant to Supplemental Rule C(2) for an order to issue a warrant of arrest for the property at issue, the district court found that the Government had probable cause to believe the dozer was "subject to forfeiture pursuant to 21 U.S.C. § 881(a)(6)” and issued the order for warrant of arrest.