UNITED STATES OF AMERICA :
:
Plaintiff, :
:
v. :
CA #: 92-1761 CRR
:
REAL PROPERTY AND PREMISES :
KNOWN AS 1889 INGLESIDE TERRACE:
N.W., WASHINGTON D.C., :
FURTHER DESCRIBED AS LOT 125 :
SQUARE 2617, :
:
Defendant. :
Claimants, Helen and Doris Hoyle, 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)(7) 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 titled owners of the real estate are Helen and Doris Hoyle.
5. Claimants deny the allegation of paragraph 5, as they believe the property is worth approximately $270,000.
6. Claimants deny the allegations in the first, fourth, fifth, and sixth sentences of paragraph six. Claimants are without sufficient information to admit or deny the allegations in the second and third sentences of paragraph six. As to the seventh sentence of paragraph six, claimants deny that a controlled purchase of narcotics was made from the residence, but admit that a search warrant was executed on June 20, 1992. As to the eighth sentence, claimants admit that the police claim to have recovered a packet of alleged cocaine during the search, but deny that any of the claimants possessed it nor did they know it was there, and in fact never saw it (the suspicious circumstances suggest it might have been planted by police); they admit a .45 caliber pistol was recovered, but it was recovered from the pocketbook of a female visitor, and claimants had no knowledge that she possessed a gun at the time; also, the amount of money recovered from the premises on that date exceeded $15,000. As to the ninth sentence, claimants admit that Doris Hoyle was present during the search and was initially arrested, based on the alleged recovery of the alleged cocaine packet, but the charges were dismissed by the judge after the preliminary hearing.
7. Claimants deny the allegations of paragraph seven.
8. The complaint fails to state a claim upon which relief may be granted.
9. The evidence seized in this case must be suppressed as the fruit of an illegal 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).
10. Claimants are innocent owners whose interests are protected from forfeiture by 21 U.S.C. Sec. 881(a)(7) which provides:
11. 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).
12. The disproportionality between the offense allegedly committed within this property, and the penalty of forfeiture of the entire residence as punishment would violate the Eighth Amendment's Cruel and Unusual Punishment Clause, 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).
13. 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.
14. 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.
15. 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.
16. The period of time claimants were ousted from possession of their home, and denied possession of their personal property located within the residence, was 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 awarded damages for the temporary taking; 3. That they be awarded reasonable attorneys fees; and
4. For such other and further relief as may be deemed just and equitable.
Claimants hereby demand trial by jury on all issues.
Respectfully submitted,
________________________
BRENDA GRANTLAND, ESQ.
P.O. Box 7447
Arlington, VA 22207
(202)546-8890
I hereby certify that a copy of the foregoing answer with counterclaims
was served, by first class mail, upon Assistant United States Attorney
Noel Brennan, 555 4th Street N.W., Room 5823, Washington, D.C. 20001 this
__________ day of __________ _________________, 1992.
_______________________
Brenda Grantland