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UNITED STATES v. WADE

December 10, 1997

UNITED STATES OF AMERICA,
v.
CHARLES E. WADE, et al., Defendants.



The opinion of the court was delivered by: LAMBERTH

 This matter comes before the court on the motions of defendants Charles Wade and James Wade and third-party interveners Shelton Wade, Sheila Gant, Angel Wade, Jean Wade and Dorothy Wade to stay, vacate and reconsider this court's September 25, 1997 Order of Abatement for the property located at 647 G Street, S.E.; the government's opposition; and the oral arguments of all parties. For the reasons stated below, the motions are hereby denied.

 I. BACKGROUND

 Since at least early 1994, the Washington Metropolitan Police Department had been receiving reports that individuals were selling drugs in front of a brick row-house located at 647 G Street, S.E., Washington D.C. From April 1995 through January 1997, the police received some 42 complaints about the alleged drug trafficking activity. As an expression of their concern, a local neighborhood citizen's association took their complaints about these recurring drug transactions to a D.C. Councilman and to the United States Attorney for the District of Columbia.

 In October 1994, the police began an undercover investigation of the alleged narcotics trafficking inside and in front of 647 G Street, S.E. According to police reports written in conjunction with their investigation, the distribution of the drugs usually took place in front of the house, with the distributor coming out of the house with a small quantity of drugs to sell either to pedestrians or to individuals who were driving by the house. Upon making the sale, the distributor would take the money into the house and would retrieve additional drugs for sale. Over the course of their two-year investigation, the police purchased drugs from seven different individuals in front of 647 G Street, S.E. on ten separate occasions. These individuals were Love Wade, Charles Wade, Wesley Baker, Raymond Parks, Leon Creek, Rodney Banks and Floyd Davis.

 In addition to these undercover drug buys, the police confiscated drugs from 647 G Street, S.E. on at least three occasions. Two confiscations involved searches of the house (November 30, 1995 and December 16, 1996) and one occurred immediately after a drug transaction (October 5, 1996).

 On May 28, 1997, defendants Eugene T. Wade and Charles E. Wade entered Rule 11(e)(1)(C) pleas to three counts in a joint superseding information filed against them, admitting to: (1) conspiracy to distribute and possess with intent to distribute cocaine base, in violation of 18 U.S.C. § 371; (2) unlawful distribution of cocaine base, in violation of D.C. Code § 33-541; and, (3) keeping a disorderly house and aiding and abetting, in violation of D.C. Code §§ 22-2722 and 22-105. On September 25, 1997, this court sentenced Eugene and Charles Wade, and, because the agreed-upon plea included the offense of keeping a disorderly house, an Order of Abatement was issued. See D.C. Code § 22-2717 (requiring the entry of an order of abatement if the existence of a nuisance is established); see also Raleigh v. United States, 351 A.2d 510 (D.C. App. 1976) (same). This order directed the United States Marshal for the District of Columbia to:

 
1. cause the effectual closing of the building at 647 G Street, S.E., against its use for any purpose, and so keeping it closed for a period of 1 year, unless sooner released by further order of the Court; and,
 
2. remove from the building all fixtures, furniture or movable property, to include any narcotic or other contraband, and drug paraphernalia, as that term is defined in D.C. Code § 33-601(3), as plainly are used in conducting the nuisance of unlawfully selling crack cocaine base, as follows:
 
a. all such fixtures, furniture, or movable property used in conducting the nuisance, other than contraband, if any, shall be sold in the manner provided for the sale of chattels under execution;
 
b. except that, residents of 647 G Street, S.E., shall be first allowed to take from the premises all personal items and innocent property in the nature of personalty, that are not contraband or paraphernalia, and that are not plainly held for use in conducting the nuisance of unlawfully selling crack cocaine base;
 
3. give public notice that any person who shall break and enter or use 647 G Street. S.E., shall be punished for contempt of court, by fine of not less than $ 200 nor more than $ 1000, by imprisonment not less than three nor more than six months, or by both.

 Almost immediately after its entry, a number of motions were submitted to this court challenging the Order of Abatement. These included:

 (a) An Application to Vacate Order of Abatement and for Emergency Stay, filed by Shelton, Angel, Jean and Dorothy Wade and Sheila Gant ("third-party interveners"), none of whom were at any time defendants in the criminal case, but either reside at 647 G Street, S.E. and/or assert an ownership interest in the subject property;

 (b) Two largely identical Motions to Vacate Order of Abatement and for Emergency Stay, one by defendant James Wade, who at the time of filing the motion was charged with keeping a disorderly house but was awaiting trial *fn1" , and one by defendant Charles Wade who entered a plea of guilty to the disorderly house charge;

 Defendants and third-party interveners offer a wide array of challenges to this court's Order of Abatement. First, they argue that this court is without subject matter jurisdiction over the abatement of nuisances. Second, they claim that D.C. Code § 22-2717 provides for the mandatory issuance of an abatement order only when the property at issue is used for the purpose of lewdness, assignation or prostitution as set forth in D.C. Code § 22-2713. Because the charged offenses in this case are exclusively drug related, they contend that the disorderly house abatement scheme is inapplicable. Third, defendants and third-party interveners allege that with all of the defendants in this matter either sentenced, awaiting trial or no longer at or near 647 G Street, S.E., the alleged nuisance has already been effectively "abated," obviating the need for this court to proceed with a formal abatement order. Fourth, they claim that the non-defendant owners of the property -- Dorothy, Shelton, Angel, and Jean Wade and Sheila Gant -- were without guilty knowledge that any drug trafficking activity was taking place on the premises. Therefore, the Order of Abatement should not have been issued because the government did not prove that each of them knew or should have known of the illegal use. Finally, they make a series of claims that the Order of Abatement and D.C. Code § 22-2717 are unconstitutionally vague, overbroad and deprive the owners of their property without due process of law. Each of these challenges will be considered in turn.

 II. STANDING OF THE THIRD-PARTY INTERVENERS

 Before addressing the substantive challenges to the Order of Abatement, this court must first consider the government's challenge to James, Shelton, Jean, Angel, and Dorothy Wade's and Sheila Gant's standing to challenge the Order. This court granted the non-parties' unopposed Application by Non-party for Leave to File Motions without at that time reviewing the question of their legal standing, in large part because of the novelty of the issues presented here, and in the interests of fairness.

 James Wade was a party-defendant initially charged with the offense of keeping a disorderly house, but that charge was dismissed on December 5, 1997, meaning that has no D.C. Code § 22-2722 conviction from which to appeal. His standing to contest the Order of abatement is now therefore now predicated on the same grounds as the third-party interveners. The other four Wades and Sheila Gant were never indicted in this case and are not "parties" to the criminal matter in any traditional sense. It is a general rule that non-parties lack standing in a criminal case and may not appeal a criminal sentence awarded another. Nonetheless, based upon the written motions, affidavits and arguments of the parties, controlling law, and equitable considerations of justice and fairness, the court finds that the Application by Non party for Leave to File was properly granted, and that James Wade and the third-party interveners have standing to come before this court and contest the Order of Abatement.

 James Wade and the third-party interveners claim that they have a legally cognizable ownership interest in 647 G Street, S.E., and, as such, have standing to oppose the abatement order. This court agrees with the proposition that an owner of the subject real property, even if not a defendant in the underlying criminal case, does have the ability to contest an abatement order entered pursuant to D.C. Code § 22-2722. See Thomas Circle Limited Partnership v. United States, 372 A.2d 555, 555-56 (D.C. 1977) (permitting the owners of a building subject to an abatement order who were not parties in the criminal proceedings to move the trial court to set aside the order). The ability of third parties to intervene and assert their interest in the federal criminal forfeiture scheme is also instructive on this issue. See 21 U.S.C. § 853(n) (permitting non-defendant third parties to petition for a hearing to adjudicate the validity of an alleged interest in the property). While the disorderly house abatement scheme is distinguishable from the federal forfeiture procedure in many critical respects, the former should not be a means by which innocent owners are deprived of their right to assert an interest in their property.

 The government's argument against granting standing to James Wade and the third-party interveners does not so much take issue with the proposition that an owner of real property should have standing to contest an abatement order as it does with Shelton, Jean, James, and Angel Wade's and Sheila Gant's claim as owners of 647 G Street, S.E., as joint tenants. The government contends that Rosie B. Wade, the last titled owner of the property, died intestate. Under District of Columbia intestacy laws all property of a decedent passes directly to the personal representative, who thereafter holds legal title for administration and distribution of the estate. See D.C. Code § 20-105; Richardson v. Green, 528 A.2d 429, 432-37 (D.C. 1987) (concluding that the plain language of section 20-105 indicates that any action respecting a decedent's property requires the appointment of a personal representative and that non-judicial dispositions of property are abolished in the District of Columbia). Absent some proof of legal ownership of 647 G Street, S.E. by the lineal descendants, the government contends that they cannot contest the abatement order.

 While unable to demonstrate legal ownership of the subject property, the non-party applicants have demonstrated to this court's satisfaction that they have an equitable interest. District of Columbia property records demonstrate that title to 647 G Street, S.E. was transferred to Rosie B. Wade and Shelton Wade (Sr.), taking as tenants by the entirety, on October 12, 1948. See Certified Copy of Deed to 647 G Street, S.E. An affidavit of Shelton Wade states that Rosie B. Wade died intestate on September 5, 1994, leaving five issue - himself, Sheila Gant, Angel Wade, Jean Wade and James Wade. See also Certificate of Death of Rosie B. Wade (noting the date of death). Based on the foregoing, the five issue have at least an equitable or inchoate interest in the subject property as heirs at law.

 As persons who have adequately demonstrated their equitable or inchoate interest in the property subject to abatement, this court holds that they have standing to contest the court's September 25 Order. This conclusion is supported by this circuit's consideration of a similar question in the civil forfeiture arena. "It seems to us that it would just as much offend notions of due process for the government to scoop up property in which a third party has certain kinds of equitable interests as it would for the government to take property in which a third party has a 'legal' interest." United States v. BCCI Holdings, 310 U.S. App. D.C. 268, 46 F.3d 1185, 1190 (D.C. Cir. 1995) (rejecting the notion that Congress intended to draw the distinction between legal and technically equitable claims in forfeiture challenges). See also United States v. Lavin, 942 F.2d 177, 185 n. 10 (3d Cir. 1991). In a the disorderly house abatement scheme, where the effect of executing an order of abatement would be to displace people from their residence for a period of time, the conditioning of standing on the "ancient, but largely ignored" difference between legal and equitable interests in real property would violate contemporary notions of due process and fundamental fairness. See BCCI Holdings, 46 F.3d at 1190. These concerns are especially acute on these facts presented in this case, where a peculiarity in this jurisdiction's laws of intestate succession creates the legal fiction that only an as-yet unnamed personal representative has standing to challenge the Order of Abatement (other than the sentenced defendants). This court holds that as persons with a demonstrated equitable interest in 647 G Street S.E., the five children of Rosie B. Wade are properly before the court and have standing to contest the Order of Abatement.

 As for Dorothy Wade, this court finds that she has also standing in light of the fact that: 1) she is the spouse of James Wade, a lineal descendant of Rosie B. Wade; 2) she presently resides at 647 G Street, S.E. and did reside there throughout the relevant time period; 3) she has a demonstrable degree of control over the property, as it is she who "has diligently paid the property taxes for 647 G Street, S.E. for the last twenty or so years." Application to Vacate Order at 8. This combination of factors is sufficient for this court to find that the interests of fairness and justice would not be met if she could not participate in this proceeding.

 III. CHALLENGES TO THE SEPTEMBER 25, 1997 ORDER OF ABATEMENT

 A. Subject Matter Jurisdiction

 In challenging this court's ability to issue the Order of Abatement, defendants *fn2" claim that this court lacks subject matter jurisdiction over the abatement of nuisances, first by claiming that this is an action involving real property and therefore must remain under the exclusive jurisdiction of the District of Columbia Superior Court pursuant to D.C. Code § 11-921. Defendants also contest this court's power to enter the Order of Abatement because it requires that a "local tax" be assessed against a building deemed a nuisance or a disorderly house, which allegedly would contravene D.C. Code § 11-921(a)(1). Finally, they claim that only the District of Columbia Superior Court has general jurisdiction over common-law claims for relief. See King v. Kidd, 640 A.2d 656 (D.C. App. 1993). Because each of these challenges stems from the same misunderstanding of the manner by which this court obtains jurisdiction over this matter and the power to abate nuisances, all three will be considered together.

 Section 11-502(3) of the D.C. Code ("Criminal Jurisdiction") vests in the United States District Court for the District of Columbia jurisdiction over "any offense under any law applicable exclusively to the District of Columbia which offense is joined in the same information or indictment with any Federal Offense." This provision was enacted in order to avoid the procedural difficulties inherent in trying a single defendant for related D.C. Code and federal offenses in two separate proceedings. See United States v. Garnett, 209 U.S. App. D.C. 303, 653 F.2d 558, 561 (D.C. Cir. 1981). Provided that "an indictment properly joins federal and local offenses under Federal Rule of Criminal Procedure 8", a federal district court has jurisdiction over all counts. See Johnson v. Elliott, 310 U.S. App. D.C. 249, 46 F.3d 1166, 1172 (D.C. Cir. 1995); United States v. Kember, 208 U.S. App. D.C. 380, 648 F.2d 1354, 1359 (D.C. Cir. 1980).

 Here, Charles and Eugene Wade were charged with keeping a disorderly house in violation of D.C. Code § 22-2720 and with at least one federal count -- conspiracy to distribute and possess with intent to distribute cocaine base, in violation of 21 U.S.C. § 371. Because the indictment against the two Wades was comprised of both federal and local offenses, this court properly has exercised subject matter jurisdiction over the D.C. disorderly house count under D.C. Code § 11-502(3). There was no need for the government to file the abatement action in Superior Court as defendants claim; to require it to do so would create the precise "procedural difficulties" that section 11-502(3) anticipated and Garnett discussed.

 Defendants' reliance upon Coll v. Coll, 690 F. Supp. 1085 (D.D.C. 1988) in support of the argument that this court cannot exercise jurisdiction over a property-related matter demonstrates their fundamental misunderstanding as to how federal courts in the District of Columbia exercise jurisdiction over criminal laws applicable exclusively to the District of Columbia. Defendants accurately note that Coll holds that "actions involving partition and other property-related matters are considered actions of a purely local nature and are to remain under the jurisdiction of the Superior Court of the District of Columbia." Id. at 1089. However, this language is inapposite for several reasons. First, the Coll court was addressing the domestic-relations exception to federal diversity jurisdiction in civil cases, and the intended reach of any one quotation taken from that opinion must be considered in that context. Second, Coll would only be illustrative if it was a pendent jurisdiction case, where jurisdiction was properly exercised over a federal claim and the court nonetheless declined to hear the local property claim, since the exercise of jurisdiction in this case is most analogous to the pendent situation. Finally, and most significantly, it is patently clear that Coll does not stand for the proposition that a federal court is without jurisdiction over "actions involving real property" under any circumstances; if that were case, it would also follow that this court could not entertain civil forfeiture actions under 21 U.S.C. § 881(a), or hear cases arising under the federal criminal forfeiture statute. Coll therefore does not support defendants' claim that a federal court is without power to enter an order of abatement.

 As to defendants' citation to D.C. Code § 11-921(a)(3) (exclusive Superior Court jurisdiction over matters involving real property), § 11-922 (same, matters involving common law claims for relief), and § 11-921 (same, matters pending in the Tax Court) as provisions preventing this court from exercising subject matter jurisdiction, this court responds by noting that all of these provisions involve limits on the civil jurisdiction of the ...


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