United States v. Four Parcels of Real Property in Greene & Tuscaloosa Counties

HATCHETT, Circuit Judge,

dissenting, in which MORGAN, Senior Circuit Judge joins:

I agree with the majority that this court has in rem jurisdiction over the dozer.1 See United States v. One (1) 1983 Homemade Vessel Named Barracuda, 858 F.2d 643 (11th Cir.1988). I do not agree, however, with the majority’s ruling on the summary judgment issue. In this case, the government simply failed to produce sufficient evidence. Therefore, I respectfully dissent.

Donald K. Daniel (Daniel), the claimant, has been in the logging business since 1979, and has never been accused of involvement in illegal drug transactions. J.C. Pate, Jr. and Daniel are lifelong friends, and Pate frequently operates doz-ers for Daniel. During July of 1983, Daniel purchased a used International Model TD15D dozer from Pate for $16,000 and used it to build access roads for his logging trucks. When the dozer needed repairs, Daniel asked Pate to haul the dozer to a repair shop for the necessary repairs. When the repairs were estimated to be more than the value of the dozer, the dealer accepted the dozer as a trade-in on a new TD12 dozer.

In August, 1983, Daniel gave Dorothy Daniel, his sister-in-law and bookkeeper, $65,000 in cash to purchase the new dozer. Dealing in cash for such a purchase was not strange because the evidence in this case indicates that Daniel routinely did business in cash. Dorothy delivered the cash to Pate, who purchased the dozer. Nine days later, Dorothy Daniel received the bill of sale and noticed that the bill of sale showed the purchaser as Bobby Daniel, Dorothy’s husband. She contacted the *1446seller and had the bill of sale changed to name Donald Daniel as purchaser. Donald Daniel placed the dozer on the books of his logging business and depreciated it on the business’s state and federal income tax returns.

In April, 1988, the government filed a civil complaint for forfeiture of real properties belonging to Jackie D. Wilson, J.C. Pate, Jr., and Rita Pate. The complaint also sought the forfeiture of $35,350.22 in cash and one International Hough Model TD12 dozer with all appurtenances and equipment — Donald Daniel’s dozer.

Paragraph (1) of the complaint alleged that the properties were subject to forfeiture pursuant to 21 U.S.C. § 881(a)(6). Paragraph 7 of the complaint, however, which relates to the dozer, makes no reference to the controlling statute or to the theory supporting the forfeiture pursuant to the statute. Paragraph seven (7) of the complaint states:

7. On or about August 9, 1983, One (1) International Hough Model TD12 Doz-er equipped with D-2 hydraulic straight blade with hydraulic tilt, rops canopy, 22" track shoes, engine enclosures with perforated hood, back up alarm and all other standard equipment (S/N 729) was purchased with $65,000.00 in cash plus trade in by J.C. Pate, Jr. On or about May 16,1984, a new International Hough Ripper Model 12RS was purchased for this dozer by J.C. Pate, Jr. for $12,025.70 in currency. The transactions were carried out in the name of Bobby Daniels. (R. 1-1-1, 8)

This crucial paragraph regarding the dozer alleges purely innocent conduct. It does not even allege that the dozer was purchased with illegal drug proceeds, nor does it allege that the dozer was used in drug trafficking. Just as startling, the complaint fails to allege that this dozer is subject to forfeiture under any provision of law. The government expressly referred to the statute and to a substantial connection between the described property and illegal drug transactions concerning each of the other properties listed in the complaint. Obviously, the government’s case, as to the dozer, was over at this pleading stage, as the district court found. Under no law, theory, or stretch of imagination can paragraph 7 be held to be a sufficient allegation for forfeiture of property.

Daniel filed an Answer to the Complaint and a Motion for Judgment on the Pleadings which the district court treated as a Motion for Summary Judgment, supported by two affidavits showing that he purchased the dozer for his logging business with legitimate funds. The government countered Daniel’s affidavits with an affidavit from a Special Agent of the Federal Bureau of Investigation (FBI), which stated that Pate purchased the dozer for Daniel with cash, and that Pate had been convicted of illegal drug trafficking. The FBI agent’s affidavit further stated that Pate had shown a pattern of buying real and personal property in the name of other individuals, that he was a close associate of Donald and Bobby Daniel, and that his $65,000 cash purchase of the dozer was characteristic of individuals involved in illegal drug activity.2

Finding no genuine issue of material fact and that Daniel was entitled to judgment as a matter of law, the district court granted Daniel’s Motion for Summary Judgment. The district court further found that the government’s complaint did not show probable cause because the government failed to allege that Daniel acquired the dozer as a thing of value in exchange for a controlled substance, or that the doz-er was traceable to such an exchange, as required under 21 U.S.C. § 881(a)(6).3 Ad*1447ditionally, the district court found that the FBI agent’s affidavit was insufficient to create a genuine issue of material fact when compared with Daniel’s affidavits regarding the purchase of the dozer. Finally, the district court found no substantial evidence that Daniel or his bookkeeper filed a false affidavit and no substantial evidence to support a reasonable inference that Pate owned the dozer.

Because I believe the district court’s ruling on summary judgment is correct, I would affirm that court’s decision. Federal Rule of Civil Procedure 56(c) permits a district court to award summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Interpreting this broad and troublesome language has been the subject of several United States Supreme Court decisions as well as Eleventh Circuit opinions. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp., v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Clark v. Coats and Clark, Inc., 929 F.2d 604 (11th Cir.1991); Everett v. Napper, 833 F.2d 1507 (11th Cir.1987). Most instructive on the burden of proof under rule 56(c) is Celotex Corp. v. Catrett.

In Celotex, the Supreme Court examined whether a moving party must affirmatively establish its own claims or negate the claims of the nonmoving party to prevail on summary judgment. The Court stated:

[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrates the absence of a genuine issue of material fact.... [W]e find no express or implied requirement in rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent’s claim.

Celotex, 477 U.S. at 323, 106 S.Ct. at 2553.

Daniel, the party seeking summary judgment in this case, met his initial responsibility by informing the district court that the government failed to establish probable cause for the forfeiture. Specifically, Daniel argued that the government had not alleged and could not show a substantial connection between the dozer and an illegal exchange of a controlled substance, as is required under section 881(a)(6).

In demonstrating a substantial connection between the property and illegal drug transactions, the government is not required to show a relationship between the property and a specific drug transaction. United States v. $4,255,000, 762 F.2d 895 (11th Cir.1985). But, the government must show a connection. The government’s burden of demonstrating probable cause requires “less than prima facie proof but more than mere suspicion." United States v. One 1978 Chevrolet Impala, 614 F.2d 983, 984 (5th Cir.1980). Suspicion is not good enough.

In this case, the government attempted to establish probable cause by showing that: (1) Pate had recently pleaded guilty to managing a continuing criminal enterprise involving illegal drugs; (2) Pate was a lifelong friend of Donald Daniel; (3) Pate had shown a pattern of purchasing real and personal property with proceeds from illegal drug transactions in others’ names; (4) photographs showed the dozer parked at Pate’s residence and Pate driving it; and (5) the dozer was purchased with cash, a common practice of individuals involved in illegal drug activities.

Daniel contradicted the government’s weak evidence on probable cause with his *1448sworn affidavit and that of his bookkeeper, Dorothy Daniel. These affidavits proved that the bill of sale title to the dozer was in Daniel’s name, that the dozer had been purchased with legitimate funds from Daniel’s logging business, and that it was used to build access roads for the logging business. Furthermore, Daniel's affidavits stated that he often allowed Pate to use the dozer in exchange for Pate’s uncompensated work for the logging business. Moreover, Dorothy Daniel’s affidavits corroborated Daniel’s account of the transaction and further stated that most of the transactions in Daniel's logging business, including purchases of heavy equipment, were handled on a cash basis.

The government countered Daniel’s allegations by offering an affidavit from a Special Agent of the FBI. This affidavit failed to show any connection between the dozer and Pate’s illegal drug transactions. Likewise, the government failed to offer any evidence to show that Daniel’s logging business was merely a front for Pate’s illegal drug trafficking. Furthermore, the government failed to show that Daniel’s logging business could not have legitimately produced $65,000 in cash. Therefore, the government, the party with the burden of proving probable cause did not sufficiently show probable cause for the forfeiture. The government’s evidence showed nothing more than mere suspicion.4 consequently, Daniel’s affidavits sufficiently established that no genuine issue of material fact existed regarding probable cause for the forfeiture. Contrary to the majority’s contentions, Daniel did not have to negate the government’s probable cause showing to prevail on summary judgment. As the Supreme Court stated in Celotex:

Whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in rule 56(c), is satisfied.

477 U.S. at 323, 106 S.Ct. at 2553.

The majority correctly enunciated the burden of proof on summary judgment as required under Celotex Corp. v. Catrett. The majority then assumes that the government met its burden of proving probable cause when it showed (1) Pate was a convicted drug dealer who had engaged in an extensive narcotics operation; (2) Pate had no visible legal means of earning large sums of cash; (3) Pate, as is common among those who earn money by selling illegal drugs, had a pattern of purchasing valuable objects, like tractors and dozers, with cash and placing them in others’ names; (4) Pate was a lifelong friend and associate of Daniel; (5) Pate bought the dozer with cash and placed it in the name of a nominee, Bobby Daniel, the claimant’s brother; and (6) Pate used the dozer for his own purposes, kept it on his property, and led others to believe that it was his.

This evidence tends to indict Pate, not Daniel’s legitimate ownership of the dozer. Daniel had not been implicated in drug trafficking. He showed a legitimate source for the funds used to purchase the dozer and a legitimate business purpose for its use. Nonetheless, the majority fails to address Daniel’s affidavit as an allegation against the government’s showing of probable cause. Instead, the majority assumes probable cause (a connection) and immediately shifts to Daniel the burden of proof. This leap resulted in the majority placing a heavy burden on Daniel to not only negate the government's case against Pate, but to dispositively show that the dozer was purchased with legitimate funds. Neither rule 56(c) nor Celotex can be read to so shackle a party moving for summary judgment in civil forfeiture cases.

Furthermore, the majority ignores the well-established principle of law that forfeitures are not favored and should only be enforced when they are within the spirit *1449and the letter of the law. United, States v. One Ford Coach, 307 U.S. 219, 226, 59 S.Ct. 861, 864-65, 83 L.Ed. 1249 (1939). If the evidence offered by the government in this case is sufficient to cause the forfeiture of property, the property of any friend or associate of a drug trafficker is subject to forfeiture, without the government alleging or proving a connection between the property and illegal drugs.

Unfortunately, this case, which was not en banc worthy in the first place, has been used to completely confuse our law regarding summary judgments and civil forfeitures. This is one time when an easy case has made bad law.

. As the majority points out in its footnote 14, Daniel intentionally did not remove the dozer from the'jurisdiction of the court; consequently, jurisdiction is not a real concern in this case.

. If such an affidavit is sufficient for forfeiture against Donald Daniel, note that it would be sufficient against any friend or associate of Pate.

. I write this dissent because of my inability to convince the majority of my colleagues that the statute, according to our case law, means what it (21 U.S.C. § 881(a)(6)) so clearly says:

ió) All moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this subchapter, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of *1447this subchapter, except that no property shall be forfeited under this paragraph, to the extent of the interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner. [Emphasis added.]

. We must not lose sight of the fact that the government never alleged a connection between drugs and the dozer.