UNITED STATES of America, Plaintiff-Appellee,
v.
Sofia COLLADO, Claimant-Appellant,
PNC Bank, As Successor in interest to Midatlantic Bank NA, Rafael Collado, Claimants,
Real Property and Premises Known as 464 Myrtle Avenue and 181 Washington Avenue, Brooklyn New York, a 1995 Toyota Land Cruiser, New York License Plate Number K560GF, Vin # JT3DJ81W3S0108524, United States Currency, In The Amount of $8,686.00, More or less, Seized at 464 Myrtle Avenue, and 181 Washington Avenue, Brooklyn, New York on June 3, 1998, United States Currency in the Amount of $19,266.00, More or Less, Seized at 464 Myrtle Avenue and 181 Washington Avenue, Brooklyn, New York on June 3, 1998, United States Currency, in the amount of $8,909.05, more or less seized at 295 Washington Avenue, Apartment 4D, Brooklyn, New York on June 3, 1998, United States Currency, in the amount of $5,000.00 more or less, seized on June 3, 1998 from safety on June 3, 1998 from safety deposit box number 631 maintained in the name of Ana Olga Collado at Citibank, 430 Myrtle Avenue, Brooklyn, New York, all Funds on Deposit in Chase Manhattan Bank Account Number 819-6021835-01 in the Name of Angelo Lorenzo, all Funds on Deposit, In Chase Manhattan Bank Account Number 053-0674666-65 in the name of Ana O. Collado and Rafael R. Collado, all Funds on Deposit, in Chase Manhattan Bank Account Number 053-0674666-01 in the Name of Ana O. Collado and Rafael R. Collado, and all proceeds traceable there-to, Defendants.
Docket No. 03-6074.
United States Court of Appeals, Second Circuit.
Argued: October 23, 2003.
Decided: November 6, 2003.
Kathryn E. Diaz (Robert S. Friedman, Thomas M. Wilentz, on the brief), Kelley Drye & Warren LLP, New York, NY, for Claimant-Appellant.
Elliot M. Schachner, Assistant U.S. Attorney (Deborah B. Zwany and Arthur P. Hui, Assistant U.S. Attorneys, on the brief) for Roslynn R. Mauskopf, United States Attorney, Eastern District of New York, for Plaintiff-Appellee.
Before: VAN GRAAFEILAND, B.D. PARKER, Circuit Judges, BERMAN,1 District Judge.
PER CURIAM.
Sofia Collado appeals from a decision of the United States District Court for the Eastern District of New York (I. Leo Glasser, Judge) granting summary judgment to the United States in a civil forfeiture proceeding brought pursuant to 21 U.S.C. § 881(a)(7). Collado was required to forfeit a building she owned because it was used to facilitate the distribution of controlled substances in violation of 21 U.S.C. § 841 and maintained for the use of narcotics distribution in violation of 21 U.S.C. § 856(a)(2). For the reasons that follow, we affirm.
BACKGROUND
In 1983, Sofia Collado and her deceased husband, Ralph Collado, purchased a three-story building in Brooklyn, New York. The first floor of the building was occupied by a grocery store that Collado operated, while the second and third floors of the building were used as residential apartments.
In March 1997, law enforcement authorities initiated a fifteen month-long investigation, which included extensive intercepted telephone conversations, into a large-scale narcotics trafficking operation run by Sofia Collado's son, Ralph Collado, Jr., and his associates. The operation was based at Sofia Collado's building, where her son worked with his mother in the grocery store and resided with his girlfriend in the second floor apartment. Over the course of the investigation, law enforcement authorities amassed significant evidence of Ralph Collado, Jr.'s narcotics trafficking activities. He was subsequently arrested, and in October 1999, he was convicted on narcotics charges.
The United States subsequently brought a civil forfeiture action against Sofia Collado's property. See 21 U.S.C. § 881(a)(7); 21 U.S.C. § 841; and 21 U.S.C. § 856(a)(2). Sofia Collado opposed the forfeiture, essentially asserting that she was unaware that her property had been used for illegal purposes. The United States moved for summary judgment. Its theory was that the scale of narcotics trafficking around the store was so large that, assuming she had not acquired actual knowledge, she had willfully blinded herself to the narcotics activities on her property. See United States v. 755 Forest Road,
The government's evidence showed that approximately $20 million of narcotics transactions took place in and around Collado's building between June 1997 and June 1998, and that 646 narcotics-related transactions were conducted on a telephone located in her grocery store between December 1997 and March 1998. The government also identified a series of narcotics-related events that Collado "more likely than not saw or overheard." These events generally involved Collado's son selling or buying drugs in the vicinity of the building or negotiating drug deals over the grocery store telephone. For example, on one occasion, Collado's son exited the store and sold one ounce of heroin to an undercover officer in a parked vehicle. On another occasion, Collado's son gave four pounds of marijuana to a woman after she approached him in the store and followed him outside. On a third occasion, Collado's son arranged to sell cocaine to a buyer over the store phone using coded terms. In addition, a search of Collado's building executed pursuant to a warrant uncovered nearly $20,000 in cash and an Ohaus scale commonly used for weighing drugs in the second-floor apartment belonging to Collado's son, as well as a .357 magnum handgun and $8,686 in the grocery store itself.
The government further presented transcripts of several phone conversations involving Collado in which she warned her son's associates against speaking on the phone. During one conversation, she told a caller who was looking for her son: "You want to report to talk with Ralphy, good. Report here to talk. I don't want blah blah over the phone, and nothing from nothing. You guys know that its something serious.... I'm going to put him on but without talking of anything. Because the thing is hot." She told another caller that her son "will call you in a little while, because on this phone I don't want the talk for nothing." At the same time, her son could be heard shouting in the background, "I'll call you on your cell phone man!" and "It's here baby." On yet another occasion, Collado warned a caller asking for her son to "be very, very careful talking over the phone."
Collado also made a number of admissions establishing her state of mind. She admitted that she knew about her son's prior conviction for narcotics trafficking and that he had been released from incarceration on those charges only four years earlier. More importantly, she straightforwardly admitted her suspicions regarding her son's narcotics activities: "I had my suspicions, because of his associates from the jail calling and stopping by frequently."
In response to the government's evidence, Collado contended that she had not witnessed any drug transactions directly, and that her son and his associates endeavored to conduct such transactions outside of her store and outside of her presence. Moreover, she claimed that she had little knowledge of English, much less coded phrases for narcotics, and that most of her son's phone conversations involving drugs were conducted in English. She also asserted that her generalized suspicions about her son's involvement with drugs did not extend to any specific knowledge that he might be using her property for illegal purposes. Lastly, Collado argued that the government misconstrued the meaning of her statements on the phone by using literal rather than idiomatic translations.
On the basis of this evidence against Collado, the district court rejected her claim that she had not remained willfully blind to large-scale narcotics trafficking on her property. The district court also rejected her argument that the forfeiture of her property constituted an excessive fine in violation of the Excessive Fines Clause of the Eighth Amendment. Collado appeals and we affirm.
DISCUSSION
We review a district court's grant of summary judgment de novo. See Mario v. P & C Food Markets, Inc.,
On appeal, Collado raises several issues. Her first argument is that the district court improperly applied a "preponderance of the evidence" standard to conclude that she had been willfully blind to narcotics activities on her property. She asserts that under the more stringent standard for granting summary judgment, the government's evidence was insufficient.
In 1998, when the events at issue occurred, civil forfeiture was governed by an earlier version of 21 U.S.C. § 881(a)(7). Although Congress later amended the civil forfeiture laws by passing the Civil Asset Forfeiture Reform Act of 2000, Pub.L. 106-185 (2000) ("CAFRA"), CAFRA does not apply to actions filed before its effective date. See id. § 21; United States v. $557,933.89,
Had this case gone to trial, the burden-shifting framework undergirding civil forfeiture actions would have required Collado to prove by a preponderance of the evidence that she was not aware of, or not willfully blind to, the narcotics activities at her building. This case, however, did not go to trial, but was adjudicated by summary judgment, pursuant to which the moving party bears the burden of proving that "there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). The evidentiary standard that must be met by the moving party is a high one, since a court is obliged "to draw all inferences in favor of the party against whom summary judgment is sought," Ramseur v. Chase Manhattan Bank,
The district court below appears to have predicated its ruling regarding Collado's willful blindness, in part, upon its finding that she had "more likely than not" witnessed certain narcotics-related events in and around her store. To the extent that this was the case, we disagree with the district court's analysis. The district court was required by Rule 56 to draw all inferences in Collado's favor and to construe the evidence in the light most favorable to her. Instead, it seems to have applied a lesser "preponderance of the evidence" standard in granting the government's motion.
We may affirm, however, so long as there is sufficient evidence in the record to support the result reached by the district court below. See United States v. Yousef,
Collado's next argument is that her Fifth Amendment due process rights were violated when the district court allowed her property to be forfeited upon a mere showing of probable cause. This argument fails. First, as Collado concedes, this issue was not raised below in the district court. The general rule in our circuit is that "a federal appellate court does not consider an issue not passed upon below." Robinson v. Government of Malaysia,
Collado's final argument is that the forfeiture of her property constituted an excessive fine in violation of the Eighth Amendment. The district court found that the forfeiture was not excessive — or grossly disproportional to the gravity of the offense — under the test articulated by the Supreme Court in United States v. Bajakajian,
We have considered Appellant's other contentions and find them to be without merit.
CONCLUSION
For the foregoing reasons, the judgment of the district court is affirmed.
Notes:
Notes
The Honorable Richard M. Berman, United States District Court for the Southern District of New York, sitting by designation