UNITED STATES OF AMERICA :
:
Petitioner, :
:
v. : CA #: 89-2401 JHG
:
PROPERTY IDENTIFIED AS :
1213 34TH STREET, S.E. :
WASHINGTON D.C., REAL PROPERTY :
CONTAINING A ONE LEVEL DETACHED:
HOUSE, FURTHER DESCRIBED AS LOT:
62, SQUARE 5509, :
:
Defendant. :

Claimants, Herbert Gibson and Arnetta Allen, through undersigned counsel, answer the Complaint For Forfeiture In Rem as follows:

1. Claimants do not dispute the contention, in paragraph one, that 21 U.S.C. Sec. 881(a)(6) provides for the forfeiture of "all real property and any appurtenances or improvements which is used, or intended to be used, to commit or facilitate the commission of a violation, punishable by more than one year's imprisonment, of Title II of the Controlled Substances Act, 21 U.S.C. Sec. 801 et seq." Claimants deny that the real estate which is the subject of this action was used or intended to be used to facilitate commission of such an offense.

2. Claimants admit the allegations of jurisdiction and venue in paragraph two.

3. Claimants admit the allegations in paragraph three.

4. Claimants admit the allegation in paragraph four that the real estate is owned in part by Herbert Gibson.

5. Claimants are without sufficient information to admit or deny the allegations in paragraph five.

6. Claimants admit the allegations in paragraph six.

7. Claimants deny the allegations of paragraph seven.

8. Claimants deny the allegations of paragraph eight.

9. The complaint fails to state a claim upon which relief may be granted.

10. The evidence in this case must be suppressed as the fruit of an unreasonable search and seizure under the Fourth Amendment to the United States Constitution and One 1958 Plymouth Sedan v. Commonwealth of Pennsylvania, 380 U.S. 693 (1965).

11. Claimant, Arnetta Allen, is an innocent owner whose interests are protected from forfeiture by 21 U.S.C. Sec. 881(a)(7) which provides:

[N]o property shall be forfeited under this paragraph, to the extent of an interest of an owner, by reasons of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner.

12. The undue delay between the alleged offense and the filing of the forfeiture action, and the resulting pretrial delay of the forfeiture case violates claimants' rights to a speedy trial of the forfeiture case under the Due Process Clause and United States v. $8850, 461 U.S. 555 (1983). therefore the seizure was illegal.

13. The disproportionality between the offense allegedly committed in this case, and the penalty of forfeiture of the entire residence as punishment would violate the Eighth Amendment, and therefore it is prohibited by the Constitution. See United States v. Busher, 817 F.2d 1049 (9th Cir. 1987) and United States v. Littlefield, 821 F.2d 1365 (9th Cir. 1987).

14. The government's use of the civil forfeiture provisions of 21 U.S.C. Sec. 881 to seize and attempt to forfeit this residence is unconstitutional as applied to the facts of this case, because it is clearly a punitive measure, rather than a remedial one, and therefore the due process clause requires that the procedural safeguards of the criminal forfeiture statute be afforded these claimants.

15. The illegal seizure of claimants' residence violated claimants' rights under the Fourth Amendment to the United States Constitution and 42 U.S.C. Sec. 1983, for which they seek damages and reasonable attorney's fees.

16. The ouster of the claimants from possession of their residence without prior notice and the opportunity to be heard violated their due process rights under the Fifth Amendment to the United States Constitution and the Landlord and Tenant Code of the District of Columbia, for which they seek damages including reasonable attorney's fees.

17. The period of time claimants have been ousted from possession of their home, and denied possession of their personal property located within the residence, is a temporary taking under the Fifth Amendment of the United States Constitution, for which claimants seek just compensation, including damages for loss of use, depreciation and reasonable attorney's fees.

WHEREFORE, claimants pray:
 

1. That this action be dismissed;
2. That they be immediately permitted to regain possession of their property;
3. That they be awarded damages for the temporary taking;
4. That they be awarded reasonable attorneys fees; and
5. For such other and further relief as may be deemed just and equitable.

Claimants hereby demand trial by a jury of twelve on all issues.
 

Respectfully submitted,
 
 

________________________

BRENDA GRANTLAND, ESQ.
526 King Street
Suite 423
Alexandria, VA 22314
(703) 841-1626
 

I hereby certify that a copy of the foregoing answer with counterclaims was served, by first class mail, upon Assistant United States Attorney Jock Banks, 555 4th Street N.W., Room 5823, Washington, D.C. 20001 this __________ day of _____________________, 1989.
 

_______________________

Brenda Grantland