As the Court of Appeals for the Third Circuit stated, "It is well settled law that evidence which is relevant and admissible as to one issue, here probable cause, can be inadmissible as to another issue, i.e. to rebut the innocent owner defense." Grubb, 886 F.2d at 622.
It is clear that the government had probable cause to believe that defendant property was used to commit or facilitate the commission of a felony in violation of Title 21 of the United States Code. See Order, dated March 12, 1991, at 3. Even were the Court to disregard the testimony and exhibits concerning the 1984 search, the government clearly met its initial burden of showing probable cause for the seizure.
The 1986 and 1988 searches and exhibits and testimony related thereto provide the Court with ample evidence to find that the government had probable cause to bring this action.
Because the government has established a prima facie case for forfeiture, the burden shifts to Mr. Akers to prove by a preponderance of the evidence either that he did not know that his home was being used to facilitate the distribution of narcotics or that, if he did know, that he did not consent to such use.
It is a close question whether the claimant had knowledge that his house was being used to facilitate the distribution of narcotics.
The government emphasized that three search warrants had been executed at 908 T Street, N.W. and that, at a minimum, Mr. Akers was aware that members of his family were using his home for drug-related activities on those occasions. Gail, however, provided credible testimony to support her father's contention that while he knew there were drugs in his home on those three occasions, he had no reason to assume that his home was being used to facilitate the distribution of drugs for either a continuous period from 1984 through 1988 or at times other than those immediately proximate to the three search periods. For example, Gail explained that while Gregory was responsible for the contraband found during the 1984 search, Jeffrey was responsible for the narcotics recovered in the 1986 search. She further explained that when Gregory was released from prison in 1987 or early 1988, he was living in a halfway house, was regularly granted weekend passes, and repeatedly tested negative for drugs. In fact, Gail, on behalf of her family, accompanied Gregory to drug rehabilitation consultants and facilities to stimulate his apparent progress. Consequently, although Gregory had a history of narcotics use and distribution, there was scant reason to question his involvement with narcotics during that rehabilitation period. She also explained that two of her drug-addicted siblings, Kathy and Jeffrey, had been "put out" of the house by her father because of their drug-related activities. There was no evidence produced that members of Mr. Akers' family who presently live at 908 T Street, N.W. and who have lived there since Kathy and Jeffrey were ordered to leave, are or have been involved in illegal activities.
In any event, Gail also provided the Court with convincing, uncontradicted testimony that her father took "all reasonable steps to prevent illicit use of premises." 141st Street, 911 F.2d at 879. She testified that he nailed windows shut, put locks on the doors, kicked his drug-addicted children out of the house, and, as she did, encouraged his drug-addicted children to attend drug treatment programs.
The claimant's corroborated showing of lack of consent was neither contradicted nor rebutted and thus, stands unchallenged.
Moreover, the government failed to successfully attack the credibility of claimant's witnesses. While it is difficult to say whether or not Mr. Akers' testimony, standing alone, would have been sufficient to prove, by a preponderance of the evidence, that he is an innocent owner, Mr. Akers' testimony was buttressed by the testimony of Gail, who on both direct and cross examination, was exceedingly impressive and credible: She was poised, articulate, intelligent, and consistent; she corroborated aspects of her father's testimony, including his testimony that he ordered his daughter, Kathy, to leave the house; and she provided the Court with uncontradicted details of the steps her father took to secure a drug-free environment. Moreover, although the Court has no reason, in this case, to question the credibility of the policemen, of course, their testimony was constricted to the period immediately surrounding the search warrants and did not go to whether the claimant "consented" to the use of his home in violation of 21 U.S.C. § 881(a)(7).
Claimant has readily shown, by a preponderance of the evidence, that he may not have known and that he certainly did not consent to his property being "used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a [narcotics] violation," 21 U.S.C. § 881(a)(7), and therefore, claimant has clearly proved that he is entitled to judgment in his favor based on the "innocent owner" defense.
Accordingly, for the reasons expressed above, it is hereby
ORDERED that judgment is entered in favor of claimant, William Akers, and against plaintiff, the United States of America.
IT IS SO ORDERED.
JUDGMENT - July 19, 1991, Filed
In accordance with the Memorandum Opinion this date, judgment is hereby entered in favor of claimant, William Akers, and against plaintiff, the United States of America.
IT IS SO ORDERED.
July 18, 1991.