United States v. One 1973 Rolls Royce, V.I.N. SRH-16266 Ex Rel. Goodman

statute, quirement by the exhaustion of those mandatory.

procedures is See McNeil v. America, Appellee, UNITED STATES of — States, U.S. -, United v. L.Ed.2d ROYCE, ONE 1973 ROLLS V.I.N. SRH- say Finally, plaintiffs that RTC never re- 16266, (By Through Claimant Oscar sponded to their administrative claim once it GOODMAN), Appellant, B. 16,1990. April was filed on Under the statu- National Association of Criminal Defense scheme, however, tory argument is irrel- Lawyers, Amicus-curiae. evant because their claim was administrative initiated after state action their was com- No. 93-1417. plaintiffs menced 1990. Since did not Appeals, United States Court of claim, timely exhaust their administrative Third Circuit. subject jurisdic- district court lacked matter tion of the action. Since the state court also Argued Dee. 1993. subject jurisdiction lacked matter for the Decided Nov. 1994. reason, same remand district court As Amended Dec. and Dec. 1994. would be a vacuous act. We will therefore Petition Rehearing court to Sur for Panel direct the district dismiss the claims against Feb. RTC.

III. OTHER CLAIMS complaint court

Plaintiffs’ state named cer- defendants, e.g.,

tain other Dale & Dale. On record, present position we are not in a dispose against of the claims the other will, Consequently,

defendants. there-

fore, remand the case as to such claims to parties opportunity

afford those pres- positions

ent their to the district court for

appropriate disposition.

IV. CONCLUSION

The order of the district court remanding against

this action RTC to the state court

will be reversed with a direction to dismiss against

the claim it.

So much of the order the district court against

as remands the claims the defendants

other than will RTC be vacated and the

claims remanded to the district court for

appropriate disposition.

7 95 Stiles, Atty., Michael R. U.S. Walter S. Jr., Batty, Appeals, Chief of Joel M. Fried- man, Labor, Frank A. (argued), III Asst. Attys., PA, Philadelphia, appellee U.S. for U.S. (argued),

David Chesnoff Goodman & Chesnoff, Stein, Stephen Murdock, Robert E. Palazzo,' NV, Vegas, Murdock & ap- Las for pellant One 1973 Rolls VIN SRH- Ardmore, PA, Goldberger (argued), Peter for amicus-curiae Nat. Ass’n Crim. De- Lawyers. fense BECKER, NYGAARD, Before: WEIS, Judges. Circuit OPINION THE OF COURT BECKER,' EDWARD R. Judge. Circuit I. INTRODUCTION AND OVERVIEW Comprehensive The Drug Abuse Preven- Act, tion and §(cid:127) Control 21 U.S.C.A. 881 et (West seq. Supp.1984), provides, 1981 & among things; other for civil forfeiture of illegal drug property. related Section 881 illegal authorizes the to seize drugs, illegal drugs, containers of records illegal drugs, prop- associated with and other (7). 881(a)(6), §§ pro- Congress purchased with or U.S.C.A. later erty associated illegal added the innocent owner defense from the distribution ceeds derived 881(a)(4), § slightly has become attractive to and it has a drugs. Section 881 different permits to seize prosecutors because it them formulation: no owner’s interest in a “con- trafficking merely drug veyance” “by involved shall be forfeited reason of showing probable cause upon a act or establishеd omission owner to help was used to facilitates been have committed or omitted without the consent, transaction. knowledge, blindness of 881(a)(4)(C) (em- the owner.” U.S.C.A. emerged §of have Three subsections (West supplied) phasis Supp.1994). far-reaching tools of the civil forfeiture as 881(a)(4) provides for for- scheme. Section overarching appeal issue this is the “conveyances” (airplanes,- automo- feiture of extent which the “willful blindness” lan- etc.) biles, boats, to be used used intended guage requires §in found us to sale, receipt, transportation, to facilitate interpret that innocent owner defense differ- a controlled possession, or concealment of ently from the otherwise identical defenses in - 881(a)(4) (West 21 U.S.C.A. substance. 881(a)(6) Specifically, §§ we must 881(a)(6) Supp.1994). provides for Section first determine what constitutes “willful proceeds forfeiture of “all traceable” to a blindness” term is used transaction. U.S.C.A. 881(a)(4)(C). must then We decide wheth- 1981). (West provides §And er an owner can claim innocent owner status property” forfeiture of “all real that is used (a)(4)(E) by showing that he or she to be to facilitate an or intended used lacked either or consent or willful exchange of a controlled substance. blindness, which, turn, requires us to de- 881(a)(7) (West Supp.1994). U.S.C.A. termine the extent to which rule in that an owner Circuit need show either Congress’ decision add knowledge lack of or lack of consent to make (7) 881(a)(4), (6), §§ to forfeiture the out the innocent owner defense in the context signalled expansion a of the scheme dramatic 881(a)(7), §of see v. Parcel United States government’s power. Previously, forfeiture Property Real Known As 6109 Grubb forfeiture had been limited to the sub (3d Cir.1989), 623-26 controls by and the instruments stances themselves interpretation our defense con- they which were manufactured and distribut 881(a)(4)(C). text of (6) (7) 881(a)(4), §§ gave But the ed. power of the seizure of a property the to seize that This ease arises out by legitimate. Royce by Oscar B. appearances all was This de Rolls automobile owned Goodman, velopment gave possibility prominent that a criminal defense law- rise throughout innocently yer represents who or loaned who clients owners had leased Scarfo, Sr., country. to could that in Nicodemo a co-defen- others lose (and example, at one proceeding. a forfeiture For a dant of Goodman’s former clients might apartment complex Philadelphia head of the reputed landlord forfeit an time (“LCN”)), gave caught drugs dealing if a tenant was from an branch of La Cosa Nostra Royce repayment -for apartment, a had loaned his Goodman the Rolls or father who $16,000 paid family might car it if the son that had to the Four son the lose Goodman Philadelphia to cover the caught transporting drugs were therein. Seasons Hotel party given by son cost of a lavish Scarfo’s problem, Congress To ameliorate this en- to celebrate and his friends at the hotel grafted an “innocent owner” defense for- acquittal at a trial in which Scarfo’s murder 881(a)(4), (6), §§ The feiture under defense counsel. Goodman was one (a)(6) §§ under “innocent owner” defenses (7) pursu- FBI interest in seized the vehicle are the same: owner’s 881(a)(4). agency contended property may “by reason of ant to be forfeited family had used established that owner to that members of Scarfo act omission Royce people to shuttle to and or omitted without the the Rolls have been committed meetings part of the Scarfo of that owner.” 21 conducted or consent in terms may have defined willful blindness drug activities. family’s distribution LCN standard, i.e., objective asserting in- “due care” a verified claim filed Goodman 881(a)(4)(C). care to discov pursuant to failure to exercise due ownership owner’s nocent about, know car was tainted. To the alleged that he not er whether Goodman did to, willfully applied not blind an ob and was that the district court extent did consent a drug determining transactions. After jective standard car’s use erred, rejected blind, willfully court Good- for we the district was bench trial Goodman and held that the owner claim appropriate standard for man’s believe subject to forfeiture. subjective Rolls blindness is the traditional willful articulated in United States v. Ca standard principal raises two appeal, On Goodman Cir.1985). (3d minos, 770 F.2d Un сourt’s decision. to the district challenges standard, willfully person a blind der that First, the district court he contends when he or she purposes prove he had failed to incorrectly held that high probability that the of a con aware blindness. Goodman lacked willful that he veyance drug transac was used facilitate that, by holding that Goodman was submits to take reasonable affirmative tion but fails to exercise because he failed blind conveyance measures to find out whether the car whether the had due care to ascertain Thus, in fact so used. for Goodman transaction, drug to facilitate been used escape prong improperly read willful blind- district court 1) 881(a)(4)(C), he needs to show either proper negligence provision. The ness as a subjectively recognize the he did not standard, objec- argues, is not an Goodman high probability the vehicle was connect requires but rather tive “due care” standard 2) transaction, that he took ed to igno- subjective inquiry, such as “deliberate steps the circumstances to reasonable avoidance.” or “conscious rance” actually learn whether the vehicle had been Second, claims the district used to facilitate a transaction. Be that his failure to improperly concluded court cause we cannot be sure that the district blindness, standing prove lack of willful standard, applied will vacate court alone, ownership de- his innocent defeated judgment of forfeiture and remand for Goodman, According is entitled fense. reconsideration. ownership protection even if he to innocent challenge, relating second Goodman’s willfully blind to the fact that knew or was consent, thorny a number of issues. raises Royce had been used to facilitate a the Rolls conclusion, however, straightforward. is Our long that drug so as he shows he transaction We conclude that the rationale of 6109 Grubb therefor. He ar- did not consent to its use perforce applies Road to forfeitures under Road, in gues our decision 6109 Grubb 881(a)(4)(C), § and that Goodman will be an held that under 886 F.2d at which notwithstanding any innocent owner knowl- 881(a)(7) § innocent owner defense would an edge may willful if blindness he have had either lack of knowl- lie if the owner showed he did not consent to the use of the Rolls consent, edge lack of mandates such drug Royce in connection with transactions. the innocent He reasons since result. Thus, assuming that can convince 881(a)(7) virtually § provision of is owner the factfinder that he did not own the Rolls 881(a)(4)(C), §in he was to that identical Royce at the time it was used to facilitate a that, notwithstanding his entitled to show transaction, and was not otherwise in a blindness, was an innocent owner he car, position prevent such a use of the because he did not consent to the Rolls will have shown that he did not consent to its Royce’s pre-transfer drug use in the transac- hence use to facilitate transactions and tions. to innocent owner status. be entitled will challenge district Goodman’s first point simple requires our conclusion on this is court’s decision us to articulate While state, far-reaching implications it meaning of willful has 881(a)(4)(C). troubling § a number of issues about 6109 Although it is not clear from raise wording and the of the innocent opinion, appears its that the district court Grubb Road deprive forfeiture statutes. tive construction would defense approach essentially prop owner status to owners who know Road their The 6109 Grubb erty being improperly is property that is used but are precludes forfeiture of unable 1) put stop despite having to it by persons an inter- taken all owned who: obtained use; steps reasonable to do so—a illegal result which est in the after the 2) process could raise due concerns. illegal its use at See Cale lacked about Co., ro-Toledo v. Leasing Pearson Yacht illegal occurred. the time the use Under 663, 688-90, 2080, 2094-95, Road, U.S. 94 S.Ct. post-illegal-act transfer- 6109 Grubb L.Ed.2d 452 who did not know about the act that ee created the taint at the time it occurred will Although there is discussion in 6109 if be an innocent owner even he or she knew problem disjunc- Grubb Road of the about the taint at the time he or she received tive construction creates when the statute is property. applied post-illegal-act transferees, its ab- surprising. sence is not At the time 6109 result, government Given this asks that decided, presumed Grubb Road was it was decline to 6109 Grubb Road to we extend post-illegal-act that a transferee could never 881(a)(4)(C). § forfeitures under But raise the innocent owner defense because the government point principled can to no basis provision relation back of the civil forfeiture 881(a)(4) distinguishing § for statute, 881(h) (West § Supp. U.S.C.A. 881(a)(7) purposes applying 1994), vested title the United States Grubb Road. Had Scarfo satisfied his debt act, post-illegal- time of the and thus a by giving him to Goodman a house instead of act transferee could never be an owner. car, problem the nature of the would be the background presumption That changed, how same, notwithstanding ever, Supreme when the Court held Unit pursuant would need to seek forfeiture Land, Buildings, ed States v. Parcel Ap subsection instead purtenances Improvements & at 92 Buena 881(a)(4)(C). comparison Our of the struc- — Avenue, Rumson, N.J., U.S. -, Vista (7) §§ ture and (1993), 122 L.Ed.2d 469 analysis of 6109 Road lead us to con- Grubb 881(h) . deprive post-illegal-aet did not that the 6109 Road construction clude Grubb opportunity transferees of to raise the applies by analogy statute sense, then, innocent owner defense. In a 881(a)(4)(C). Avenue, Buena Vista and not 6109 Grubb (which binding While 6109 Grubb Road Road, problem today. creates the we face on us absent in bane reconsideration under that, We believe in the wake of 92 Buena operating procedures) this court’s internal Avenue, ambiguity Vista a real exists in the detractors, has its see United States v. Parcel statutory language as read 6109 Grubb Property Real Known as 6109 Grubb Road. civil Because the forfeiture statute (sur (3d Cir.1989) peti- 890 F.2d 659 nature, punitive rely on the rule of J., rehearing) (Greenberg, tion for dissent- lenity ambiguity in to resolve the favor of the disjunctive ing), approach its ameliorates claimant. We understand a countervail- harsh, unfair, quite some of the and results ing requires maxim us to construe the stat- that would occur to under the alternative its ute to avoid an absurd result. But we do not construction, i.e., “conjunctive” a construction think the result we reach is absurd. As we requiring the both a lack of show body discuss in more detail in the main of the Specifical- and a lack of consent. opiniоn, language in 92 Buena Vista Avenue ly, keep 6109 Road allows an owner to Grubb as to raises considerable doubt whether the his or her when he or she has not post- forfeiture statutes are meant to reach by taking consented to the use all illegal-act transferees who did not know steps prevent reasonable affirmative it. causing act the taint until it about the after disjunctive To discard the 6109 Road Grubb transpired. conjunctive in construction favor of a one now, choice, might prevent may problem policy the we confront As a matter of it be that conjunc- apply differently but it would create another one. A the forfeiture laws should 802 $50,000 drug traffick- in “street taxes” from a obtained claimant

depending on $50,000 Philadelphia in area. The ers the the events that or after property before the ultimately given to statute, Scarfo. taint, was the as current- but the created drafted, for the differences fails to account ly 1987, enough developed FBI had By The classes claimants. the two between against organiza LCN evidence Scarfo however, should problem, remedy for this early down on its activities. In tion crack statutory reading of the schizophrenic be a 1987, a government initiated series are not for us to text, choices policy for relating fam prosecutions to the Scarfo LCN Rather, remedy should be Con- make. as in a ily. was involved counsel Goodman apply we will Until then gressional action. trial, of them. In the first Goodman number Road, which, it apply Grubb City represented Philadelphia Coun former pro- choice of the reasonable today, makes accused, Beloff, along who cilman was Leland op- owners from the tecting post-illegal-aet Scarfo, engaging in a scheme laws. of the pressive application forfeiture develop upon estate commit a real extortion Scarfo, F.2d States v. er. See United PROCEDURAL FACTS AND

II. (3d denied, 910, 109 Cir.), cert. 488 U.S. HISTORY During L.Ed.2d 251 S.Ct. Royce, trial, and Rolls Goodman’s Thomas A. The Goodman cross-examined Knowledge government’s key Its co Use DelGiorno —one during operating that cross- witnesses —and January purchased Scarfo In examination, forced DelGiornо to Goodman Puff Motors in from Cream Rolls family engaged in admit the Scarfo LCN Beach, purchase price Florida. The Palm trafficking. drag contends cash, paid in $25,000, of which was most was put on that this cross-examination Goodman paid with trade-in of although part was family en notice that the Scarfo LCN reg- Scarfo the car had Lincoln Continental. activity. gaged in that Anthony Gregorio, an in Florida to istered trial, govern- Following who lived in Fort Lauder- extortion of Scarfo associate organization directly, attacked ment Scarfo’s dale. organi- in indicted members of the vehicle, bought the Shortly after Scarfo zation, Scarfo, including drag on federal two occasions to facilitate used on charges. represented Leonetti occasion, early trafficking. the first On trial, During trial. ensuing DelGior- Scarfo, Phillip Leonetti ‍​‌​‌​​‌‌‌​​‌​‌‌‌​​​‌​‌​‌‌​‌​‌​‌‌‌​‌​​​‌​‌​‌‌‌‌‌‌‍Gregorio drove for the no and testified Nicholas Caramandi (the family), LCN “underboss” of Scarfo length at government. DelGiorno testified from vacation home some others Scarfo’s organization’s involvement about Scarfo Lauderdale to meet nightclub to a in Fort that, although drags. Caramandi stated DiSalvo, drug from Phila- dealer with John family against had a rule the Scarfo LCN trafficking phenyl-2-pro- delphia involved in drags, routinely trafficking in the rale was used manufacture panane, a raw material broken, family and that Scarfo ordered his meeting, At that DiSal- methamphetamine. get money drag from members to dealers $200,000 pay in “street promised vo Scarfo Scarfo, jury acquitted any way they could. A operate could his so that he taxes” Leonetti, charges. a few others of interference the Scar- without business occasion, May of Penn- family. the Commonwealth fo On the second LCN sylvania began prosecution own meeting of his its Scarfo. August Scarfo called Leonetti, Grego- ultimately family his or It tried Scarfo members either LCN others, the murder of among Francis Ia- Salvatore rio’s home in Fort Lauderdale. (or Testa, captain narella, family, who had been a “capo” in the LCN Testa. a Scarfo “capo”) Philadelphia in LCN under Scar- meeting. He flew in from Phila- the came to thе 14, fo, Sept. 1984. up at was to death on delphia Gregorio picked him shot and attorneys him his fellow defense airport Royce and drove to a Goodman and in the Rolls and Leonet- in won an for both Scarfo acquittal Florida to Not Ianarella hotel. bringing ti. meeting, he also attend the but was

803 jury’s accepted in the Testa mur- that fact when he the car. The car verdict After friends, currently case, attorneys, impounded Philadelphia. in the defendants’ der family Four Hotel and met at the Seasons Opinion B. The District Court

Philadelphia. A wild celebration ensued. Goodman, “nothing spared According to Following February a bench trial held on expense.” far as For several hours “Co- as 17, 1993, the district court held that Good ... a bottle im- gnac [was] was $800 keep man was not entitled to the Rolls there,” by everyone and bottles bibed “$100 Royce. United States v. One 1973 Rolls if champagne being shaken as it was were SRH-16266, Royce, F.Supp. V.I.N. 571 victory splattered Series all over World (E.D.Pa.1993). concluding After evening, the wall.” At the end howev- government had met its burden under er, money family no one Scarfo’s had the § probable that there was show $16,000 bill, pay and when Nieodemo forfeiture,1 rejected cause for the court Good Scarfo, approached and asked Jr. Goodman man’s claim that he was an innocent owner. pay, agreed. Shortly court, him after Goodman According Id. at 576. Goodman party, accepted Four Goodman willfully Seasons had failed to show that he was not repay Royce offer to Goodman with the to the use of the Rolls to facili Scarfo Jr.’s blind $1,500 drug trafficking. Royce Rolls from each of the tate Id. 576-80.2 attorneys party. present other at the three recognized court the inno 881(a)(4)(C) § cent owner defense of saves Meanwhile, government had the federal from forfeiture a vehicle used to facilitate Scarfo, jury grand to indict Leo- convinced drug trafficking if the owner can establish netti, family and others in the Scarfo LCN illegal activity was committed with 1988, September In for RICO violations. consent, knowledge, out the or willful blind began. trial two-month RICO Goodman Relying ness the owner. on two cases time, again represented Leonetti. This discussing the willful blindness standard Scarfo, Leonetti, jury convicted and others of 881(a)(4)(C), United v. States One underlying drug of- RICO violations 1172, (8th Jeep Wagoneer, 976 F.2d trial, 5,1988, During on fenses. this October Cir.1992), and United States v. 1977 Porsche Gregorio endorsed the title to the Rolls F.Supp. Carrera Royce to The transfer was never Goodman. (W.D.Tex.1990), grounds, on other aff'd motor vehicle records. Al- recorded on state (5th Cir.1991), F.2d 30 the district court for though Gregorio it is not clear whether deliv- following mulated the standard for willful him, did exercise ered the title to blindness: ear, for on March some control over the pre- Lack of blindness sufficient to $4,000 paid to remove surveillance vail owner under devices from the vehicle. that a claimant must means September FBI seized the ignored that he or she has not show seizure, Royce. Shortly Rolls after suggestion might signal or that a vehicle claiming trafficking Goodman came forward that the car to facilitate the have been used government illegal drugs. suggestion might was his. The refused to return Such a car, claiming that Goodman was not enti- from the fact that the vehicle was arise Royce by drug trafficking. it used tled to the Rolls because was owned one accused of case, trafficking once the claimant chooses to facilitate and that Good- As ignore signal, he or she can man knew or was at least blind to argued government’s had also that it had case was based on 2. The Most probable had cause that the Rolls shown Agent testimony Randal Wolverton. of FBI illegal drug purchased proceeds been Leonetti, Del- He recounted statements made Giomo, transactions, support might which suffice to for- Caramandi, cooper- all who are now 881(a)(6). pursuant Because the dis- feiture ating witnesses and have on several occasions decided as did on the trict court it testified about the activities of members 881(a)(6) ques- question, did reach the family. the Scarfo LCN crime tion. Road to to extend 6109 Grubb blindness to dined lack of willful longer establish 881(a)(4)(C), however, reasoning that § that use of the vehicle would prior approach would convert Road 6109 Grubb subject to forfeiture. the willful F.Supp. at 578. 881(a)(4)(C) surplusage.5 § The district into standard, the district court this Applying judgment final of forfei- then entered a court prove had failed to that found Goodman ture. blind, i.e., knowing willfully he was Al timely appeal. Goodman filed Scarfo, he failed to show did about what he though may not set aside the district any steps to determine had taken that he they findings unless are clear court’s factual drug Royce facilitated Rolls 52(a), erroneous, ly Fed.R.Civ.P. our re see court, According to the Good- trafficking. district court’s construction view of the drug representation of Leonetti man’s 881(a)(4)(C) plenary. States § See United of DelGiorno his cross-examination trials and (3d Ave., n. v. 1500 Lincoln testimony rendered his in the Beloff trial Cir.1991). The National Association Crim family LCN not think Scarfo that he did Lawyers has filed an amicus inal Defense incredible;3 and Goodman’s drugs in dealt support appeal. in brief Goodman’s fami- general knowledge of the Scarfo LCN drug trafficking was a ly’s in involvement III. DISCUSSION suggestion” that “signal or sufficient 881(a)(U) § A. Under Forfeiture in Royce used connection Rolls had been 881(a)(4) provides .that Section drugs. trafficking of Id. at 580.4 with the automobiles, “conveyances,” including used nothing did to determine Since Goodman subject drug trafficking facilitate are Royce fact had been whether the Rolls 881(a)(4) (West § 21 Ü.S.C.A. forfeiture. trafficking, the district used to facilitate Supp.1994).6 provi As with all the forfeiture reasoned, to show that he had court he failed 881(a)(4) upon places sions of willfully Id. blind. not been government proba the initial burden show to hold that Goodman’s The court went on cause for forfeiture. Probable cause ex ble willful prove that he lacked blind- failure to grounds if to be ists facts show reasonable his innocent owner claim. ness alone defeated to facilitate lieve that the was used had claimed that notwith- Id. Goodman Road, transaction. 6109 Grubb blindness, standing his he could still F.2d at 621. Once the shows prevail that he did not if he could show cause, probable the burden shifts to the Royce’s to the Rolls use the DiSal- consent claimant to show that he or she has defense meetings. support defense, To vo and Ianarella to the forfeiture. The most common here, pointed argument, pertinent to 6109 Grubb and the one is the “inno provided рroof of either cent owner” defense which had held 881(a)(4)(C), which states knowledge lack of consent was lack of or an innocent conveyance sufficient to make out shall be forfeited under 881(a)(7). The court de- to the extent of an interest of [§ ] defense under knew, explained: testified that as far as he 5. As the court "If claimant were Goodman had trafficking prevail the LCN "abhorred” able to ... show- drugs; you [LCN] that "if accused members of ing either lack of or lack of consent or drugs, up”; blindness, went and that he had the hackles 'willful lack of willful then the words Royce absolutely the Rolls was ever no indication represent nothing more than a useless blindness' illegal drug trafficking. utilized to facilitate apple.” F.Supp. third bite at the at 581. argument rejected 4. The court Goodman’s pertinent part provides 6. Section question was not whether he was the relevant following subject items are to forfeiture: willfully or Leonetti’s involve- blind to Scarfo's aircraft, vehicles, conveyances, including All vessels, drugs, ment in but whether he was blind used, use, which are or intended for to the fact that the Rolls itself was used to transport, According or in maimer to facilitate the drug trafficking. facilitate sale, court, transportation, receipt, possession, argument "misconstrue[ ] such an would [controlled substances] Id. at 580. concealment of ... the willful blindness standard.”

805 owner, Royce that by of act or omission the Rolls had been used to facili- reason an by Agent that owner to have been tate a transaction. FBI Randal established without the knowl- testified that Leonetti committed or omitted Wolverton told him consent, bring or willful blindness of the edge, that the car was used to Scarfo to the DiSalvo, meeting owner. and that it was used to Ianarella, bring carrying who was the “street (West Supp. 21 U.S.C.A. taxes,” Although Agent to Scarfo. Wolver- 1994).7 defense, claim- To make out the testimony merely hearsay, proba- ton’s (1) he or she is an owner ant must show may ble cause for forfeiture be established (2) know, or she did not or was evidence, by hearsay see 6109 Grubb blind, consent, or did not to the 621, adequate 886 F.2d at and it was to show improper property. use of the The second probable cause here. can be component of this defense somewhat it forces the difficult to establish because mentioned, As we have the main prove negative. claimant bone of contention is whether Goodman dispute There is no serious showed that he was an “innocent” owner 881(a)(4)(C).8 probable government established cause We first consider (West Supp.1994). 21 U.S!C.A. innocent owner defense. See United States v. Land, Bldgs., Appurtenances Improve Parcel & of — Anti-Drug Ave., Rumson, NJ., part Act of 7. Enacted as of the Abuse ments at Buena 92 Vista 1988, 881(a)(4)(C) large part -, -, 1126, 1137, was in a reaction U.S. 113 S.Ct. 122 toler- (1993). to the excesses of the Coast Guard’s "zero L.Ed.2d 469 policy. policy The “zero tolerance” had ance” government argu- has made two related commercial ves- resulted in seizures of enormous challenging ments conclusion which shall personal presence sels based on the of minuscule First, briefly government address. submits quantities drugs. example, For in one of the appropriate law is not state law but statutes, worst abuses of the the Coast forfeiture law, federal common a matter of federal vessel Atlantis because Guard seized the research unregistered common law an title certificate does cigarette marijuana it found one had Second, ownership not create an interest. 25, quarters. Washington Digest (July crew’s See contends that Goodman must be able to show 1988), 1-2, reprinted at in 1 David B. Smith, Royce gift.” Rolls was a “true The case Cases Prosecution and Defense of Forfeiture generally rejected argument: law has the first 10, ¶ prompted at 4-10 4.02[4][a] n. This ownership state law defines interests. See United Representative Gary Studds of Massachusetts to 911, 30, Commissioner, States v. 1977 Porsche Carrera 946 F.2d acting tell the Customs William 9, (5th Cir.1991); Raab, 34 United States v. Lot Block 2 during hearing, "If von subcommittee Place, 994, (5th Donnybrook you something your 919 F.2d 1000 can't find better to do with Cir.1990); Property lunacy, States v. Certain Real United limited resources than this kind of then Lane, Leroy maybe giving you money.” Located at 2525 910 F.2d we've been too much (6th Cir.1990) ("We see no in the civil Id. provisions forfeiture which would mandate the application property. of a federal common lаw of questions government 8. While the recognition gov We conclude that of state laws car, truly Goodman is "owner” erning property rights does not contravene the finding court's that Goodman received district scheme, applica federad forfeiture October is not title Rolls on appropriate tion of state law is the method most clearly Although erroneous. the res is located in determining the interest of an owner under 21 Pennsylvania, Goodman’s interest is determined denied, 881(a)(7).”), U.S.C. cert. 499 U.S. law, by place where his reference Florida (1991); 113 L.Ed.2d 467 see also interest arose. See Restatement Con (Second) Ave., (looking 1500 Lincoln 949 F.2d at ("Interests § 247 in chattel are not affected flicts interest); Pennsylvania owner’s law to define by the mere removal of the chattel to another Family Single Residence state.”). law, United States v. One Under Florida the endorsement Ave., Miami, Fla., Located at 15621 S.W. 209th ownership. title to him sufficed to demonstrate (11th Cir.1990) (looking Motors, Bandel, See Nash Miami Inc. v. 47 So.2d by (Fla.1950). affected Florida law determine interest Although a could lienholder law). agree (because We with this case law. forfeiture superior have an interest to Goodman’s however, unrecorded), argument, give does us The second In re the transfer of title was see Mech., Inc., (Bankr.M.D.Fla. pause. Although entirely it is not clear what the Canup 1 B.R. 703 1979), gift,” only challenge means "true we believe it is claim of to Goodman's States, contending claim innocent ownership that Goodman cannot comes from the United which ownership unless the transfer has no interest if Goodman can sustain standard, objective wiUM the properly concluded er. Under court the district when an owner fails to exer- blindness exists that he was not to show failed that Goodman property will care to ensure that the cise due that the Rolls the fact to blind facilitate a and has not been used to not be a transaction. facilitate to was used subjective stan- drug transaction. Under the should whether Goodman then consider We dard, exists if the owner is willful blindness that, notwith- on remand to show be entitled high probability that the aware of a (if any), he is blindness standing his willful a or has been used to facilitate will bе status because he to entitled make reasonable and does not transaction drug related uses of to the not consent did it will or in inquiries to confirm whether be the vehicle. used. fact has been so 881(a)(U)(C) § Unfortunately, statutory language the does Blindness B. Willful blindness, legisla- and the not define 1. The Standard history confusion tive reveals considerable Shaw, construe the “willful yet to Representative This court has a concept. the over 881(a)(4)(C). language in We major of blindness” force behind enactment possible 881(a)(4)(C), standards: suggested two the willful must choose between standard, impose component on the one meant to a objective “due care” blindness an “reasonably hand, subjective ignorance” duty on to be informed “deliberate and a owners purpose another concerning the for which standard on the oth- avoidance” or “conscious proposi- gloss by ply a common law that it was not federal in the sense fide bona question law controls the of own- simply to shield tion that state design a transaction Scarfo's why any ership. appears But it not clear to us there is This to be a forfeiture. assets from gloss accepted for such a federal common law since proposition we have in a need a variant of adequate provision appears state law to makes or straw owners context—that nominal similar depriving challenge proceed or "straw” owners of standing a for “nominal” forfeiture lack "ownership.” State fraudulent transaction Accounts full law, ing. States v. Contents See United of doctrines, etc., 974, alter-ego, piercing for ex- or veil 971 F.2d 985-86 3034504504 & Nos. past legal (3d Cir.1992) ample, to look fictions (stating the context of the allow creditors that in 18, properly and interests to reach the of the "true" 726.105(l)(a) provisions of title 18 U.S.C.A. civil forfeiture See, corporation e.g., (West Supp.1994), that had owner. (under West's F.S.A. 981 law, conveyance merely fraudulent "a transfer property but which was legal title owner, obligation by standing incurred a debtor is fraud- lacked made or ego a straw alter - creditor, denied, forfeiture), U.S. ulent as to a whether the creditor’s challenge cеrt. 1580, (1993). -, claim arose before or after the transfer was made 123 L.Ed.2d 148 113 S.Ct. incurred, standing obligation interpreted if the debtor made the or the No. 3034504504 Accounts 981, (a) obligation: with actu- but relied exclu transfer incurred purposes of 18 U.S.C. hinder, delay, standing require creditor interpreting intent to or defraud sively al on cases debtor”). statute involved in this of ments under the forfeiture case, standing inquiry suggests holdings that the of those We believe accord with may question determining ownership States v. Premises Known as cases. See United 213, Drive, (6th ultimately governed by com- 217 Cir. in fact federal 526 Liscum Nevertheless, 1989) legal (stating "possession mon law. it is well established of bare title may incorporate law state by exercise dominion or con that federal common who does not one United States v. property may to establish law as the rule of decision. See be insufficient trol over Foods, Inc., 715, 728-30, forfeiture”); challenge Kimbell 440 U.S. 99 standing United 1458-59, 1448, (1979); (DC-4) Aircraft, Douglas 59 L.Ed.2d 711 C-54 S.Ct. States v. One 1945 etc., Co., 27, (8th Cir.1979) (holding v. Little Lake Misere Land 412 United States F.2d 28-29 604 580, 594, 2389, 2398, standing challenge L.Ed.2d U.S. 93 S.Ct. have that owners of res Thus, (1973). legal our reliance on state law to proceeding, but that bare title a forfeiture ownership may ownership), accu- cert. define the interest be most may denied, to establish be insufficient 1143, 1002, rately incorporation as defined as of state law 102 S.Ct. 454 U.S. part Boyle common law. See v. of the federal L.Ed.2d Technologies Corp., 487 U.S. 507 n. tension with United case law is in considerable This 108 S.Ct. 2516 n. 101 L.Ed.2d precept have endorsed above that "own- (1988) (questioning significance whether there is ership” reference to state law. is determined standing, between use of state law Although to the distinction rule characterized incorporates ownership” fact a and the use of federal law which rule is in back-door "nominal law). incorporation law defining ownership state Since the of state interest re- method does not “conflict” quired status. As a under these circumstances claim innocent owner result, ap- rule that has devel- ownership with the federal common law rule seems to the nominal Cong. may property.” 134 common law formulation person use their of willful blind- Shaw). (1988) (statement 33,290 subjective Rep. ignorance” ness —a “deliberate Rec. objective “conscious avoidance” state of apparently endorsed the mind. See 134 Thus Cong.ReC. (1988) (“Willful 33,288 blindness, definition of willful “due care” addresses the cases individuals who Supreme he derived from the have definition purpose a conscious to avoid decision in v. Pearson demonstrated Court’s Calero-Toledo (statement truth.”) Co., Rep. Young); id. at Leasing 416 U.S. Yacht 33,313 (“[The Cong. (1974). concept of 2080, willful is blindness] 40 L.Ed.2d 452 134 See (1988) (statement Shaw). prevent convey- intended to the owner of a Rep. 290 of Rec. violation.”) closing eyes ance from his to a Calero-Toledo, In in dicta the Court stated (statement Jones); 33,315 Rep. of id. at might that a defense to forfeiture be avail- (“Willful blindness addresses the case of indi- proved only “an not able to owner who that viduals who have demonstrated a conscious uninvolved in and unaware of he was purpose to avoid the truth. concept wrongful activity, had but also done essentially willful part blindness is reasonably expected pre- all that could be (statement proof knowledge.”) Rep. proscribed property.” vent use of his Davis). 416 94 at At U.S. S.Ct. 2094-95. Perhaps because of the confusion in the Calero-Toledo, however, issue was the legislative history, split appears a circuit constitutionality aof Puerto Rican forfeiture developing be over the definition of willful statute, and thus the Calero-Toledo dicta blindness the context of civil forfeiture. only possible constitutional limit addressed The Eleventh ap- has held that the Circuit then, Ironically, Rep- a forfeiture statute. propriate objective is standard due care outer con- potential resentative Shaw used standard of Calero-Toledo. United States v. power limit on the of a forfeiture stitutional Yacht, One 1980 Bertram 58’ Motor 876 F.2d meaning provision of a statute (11th Cir.1989). 884, 888 Bertram endorsed cut on was intended to back the reach of the pure due care standard: the owner had to words, In if statute. other the willful blind- “everything truly do that a innocent owner 881(a)(4)(C) prong interpreted ness reasonably expected could be to do to insure according to the Calero-Toledo constitutional illegally.” that his vessel was not to be used text, entirely provision superflu- then the Circuit, however, Eighth Id. at 889.10 The ous since the Calero-Toledo constitutional Jeep Wagoneer has held in statute, applies every limit forfeiture even subjective appropriate standard is the one— provision.9 those without innocent owner deliberately whether one closed his or her might pro- Of course Calero-Toledo still eyes to what otherwise would have been obvi- meaning vide the of willful blindness in expressly rejected ous—and has the idea that 881(a)(4)(C) Congress if that is what had the willful blindness test under legisla- intended. But we doubt other should be identical to the constitutional stan- Representative tors shared Shaw’s belief that dard of Calero-Toledo. See 976 F.2d at equ- the willful should blindness be 1174-75. ated with the Calero-Toledo dicta. Most leading others who made statements on the matter In our on willful case Caminos, blindness, apparently had in mind more traditional United States v. context, oped standing applying in the we still believe it to 10. In the willful blindness standard to it, appropriate apply panel state law. the facts before the Bertram held.that yacht once an owner of a advertised it for sale in Representative purchaser 9. Shaw's confusion over the Miami and a came with a rela forward tionship statutory requirement deposit, duty between the cash owner had a to ask for purchaser, willful blindness and Calero-Toledo is also evi identification from the call local law (cid:127) officials, parts inquire pur- dent from other of his statement about enforcement about the 881(a)(4)(C). example, reputation community For he stated that “this chaser’s order [Calero-Tole section is not intended to overturn maintain his status as an owner. Id. at But, ]." do since Calero-Toledo discuses the con 888-89. Because the owner had failed to take steps, stitutional limitation on held not to be an innocent forfeiture Con such he was statutes. gress could not overturn it. owner. Id. commen knowledge.11 Although courts and (3d Cir.1985), held that the we F.2d yet a consensus on have to come to tators requirement is met ignorance deliberate blindness,12 the Caminos willful subjectively definition of himself was if “the defendant adopts the mainstream basically formulation of the fact in high probability aware a state of blindness as conception of willful merely a reasonable [if] question, simple than greater culpability mind of much probabili- aware of been have man would recklessness, more akin to definition, negligence or ty.” Id. at 365. Under also supra n. 12. See Unit See knowledge. of mind that is subjective state ais Rivera, (11th 1563, 1570 States v. 944 F.2d ed requirement of satisfy a scienter deemed panel component inquiry, Caminos, igno the Caminos adopted deliberate subjective requiring a v. originated in United States read instruction charge that rance denied, (9th Cir.), something high probability Jewell, of a cert. awareness 49 L.Ed.2d 1188 was amiss. Id. at 365. U.S. Jewell, who was a defendant involved which In caught car, ‍​‌​‌​​‌‌‌​​‌​‌‌‌​​​‌​‌​‌‌​‌​‌​‌‌‌​‌​​​‌​‌​‌‌‌‌‌‌‍compartment marijuana of his proven in a to be an 12. Willful blindness has elusive following endorsed concept disagreement Circuit the Ninth much still exists over and appropriate instruction: of the term. See Jew- the ell, definition J., dissenting) complete (Kennedy, [its] burden of 532 F.2d at 706 can The Government doubt, beyond ("There disagreement a reasonable proof by proving, is as to whether reckless actually was not aware disregard if the defendant for the of a fact constitutes existence marijuana the vehicle ... his culpa- in degree was that there lesser of wilful blindness or some solely and entire- regard was ignorance in that bility. question ... There is of whether also having made a conscious ly his result of 'objective' reasonable use an test based on the to man, disregard nature of that which purpose to subjective or to the defendant's consider vehicle.... (footnotes omitted)). dispositive.” belief as dissent, (now Justice) Judge In at 700. simply a Some believe blindness is sur- avoidance Kennedy pointed out that conscious rogate knowledge. for See Rollin M. Perkins, to create a mental state is not sufficient alone (2d 1969) ("One ed. with a Law 776 Criminal knowledge. According to culpability to equal in may purpose in mind deliberate antisocial .... must be Kennedy, Judge the conscious avoidance knowing deliberately eyes' 'shut to avoid his high proba- of a accomрanied am awareness to view. In what would be obvious otherwise culpable. it to be Id. bility exists for that a fact cases, law is con- such cerned, so far the criminal as J., dissenting). argued (Kennedy, He also at 707 regard, person peril at his in this acts where there cannot exist willful blindness ‘knowledge’ having treated as of the facts and is that the relevant fact did not belief was an actual be.”); Glan- ultimately they to as are discovered Judge Kennedy, According lack of to an exist. General Criminal a risk that a Williams, Law, The created Part effect ville instruction (2d 1961) ("To requirement at ed. 159 objective to an reason- be held defendant would strictly knowledge of actual there is one limited standard, ignorance, true person whereas able party exception.... that if a has unreasonable, [T]herule is his constitute a should no matter how deliberately suspicion aroused then omits but knowledge. liability based on to criminal defense enquiries, because he wishes to make further Id. ignorance, he is deemed to remain in have instruction was appears that the Caminos It knowledge. that willful blindness is The rule Kennedy's Judge formulation than closer to knowledge equivalent essential and is is found majority's Jewell. Caminos instruction in law.”); throughout the criminal part: Com- stated Edwards, 17 that [the defendant] evidence shows Degrees Criminal [I]f Knowledge, ment J.L.J. The of (1954) (“For know, then, course, nigh well he 298 positively did not of Mod.L.Rev. years, clear from the been author- acquitted. And if the evidence indi- hundred has must be deliberately eyes person his very stupid that a shuts in the action ities who he was cates that took, knowledge an obvious means of has sufficient ignorant, be convicted. But he cannot high based on such words as was a mens rea for offense that there the evidence shows if "). 'knowingly.' equate something Others it with a less was amiss ... probability that he knew Charlow, Wil- steps investigate, culpable state of mind. See Robin take that he failed to and (1992) not, 70 was true or to find out whether that then Ignorance, ful TexL.Rev. ignorance usually employed ("Although guilty wilful you may had the find that he satisfy statutory knowledge, mens rea of required of the offense conviction which is for prevalent of the doctrine most de- importing a substance. definitions controlled of culpable incongruity a state of that is ... not as scribe mind 366. The one between 770 F.2d at Robbins, knowledge.”); Kennedy’s P. Judge as Ira Ostrich formulation and this instruction Ignorance as a Grim. the Caminos instruc- Instruction: Deliberate dissent is that in the Jewell Rea, Criminology probability high Mens was a & asked whether there Crim.L. tion ("Deliberate (1990) ignorance constitutes reck- something was amiss. that the defendant knew lessness, knowledge.”). objective rather Though might suggested than some have Cir.1991) (willful equated conveyances with the owners of seized for relat- concept ignorance” and treated “deliberate virtually ed offenses is identical to the exist- equally culpable actual as a state of mind ing defenses for innocent ownérs of real Rothrock, knowledge); v. United States things ... or other of value under (1st Cir.1986) (“The purpose F.2d (6) (7) 511(a) paragraphs and of section theory impose crim- the willful blindness is to (21 Controlled Substances Act U.S.C. who, liability recognizing people inal on 811(a)(6) (7)).”) (statement Rep. wrongdoing, con- likelihood nonetheless (“[T]he Young); defense for innocent owners sciously investigatory refuse to take basic conveyances drug-related seized for of- steps.”). Thus in the absence of a clear virtually identical existing fense[s] legisla- statement either the statute or the defenses for innocent proper- owners of real history, adopt tive the Caminos definition (statement ty, money-”) Rep. 881(a)(4)(C).13 for of willful blindness Smith, Young); see also 1 David Prosecu- This construction is consistent with the tion and Defense of FoRfeituRe Cases general agreement legislative manifest ¶ 4.02[4][a], (1993) (“[Section 4-10 881(a)(4)(C) history innocent own- 881(a)(4)(C) interpreted should pari ] er defense should be the same as those of materia with the identical innocent owner Shaw, §§ Representative (a)(7).”). provisions in sections instance, for stated that the defense under “virtually identical” to the Our construction sup is further defense owners ported that, by the despite fact the textual Cong.Rec. 881(a)(6) (7). 33,290 §§ 134 absence of willful terminology, blindness both (1988). expressed Others the same senti- 881(a)(6) 881(a)(7) § Cong.Rec. have been inter (1988) 33,288 ments. See 134 preted by many (“The require to courts owners to сoncept of willful blindness is essential- ly only demonstrate not a part proof knowledge. of lack of lack of actual knowl reason, For this the edge, defense for innocent but also a lack of willful blindness.14 ignorance” concep suspicion by 13. The Caminos "deliberate followed a failure to make further tion is careful to distance willful a inquiry. blindness from knowledge It also establishes as a mat- Indeed, negligence due care or standard. belief, subjective important safeguard ter of an designed willful blindness instruction must be to against diluting guilty required the state of mind reduce the risk that willful blindness will be Jewell, (Kenne- for conviction.” 532 F.2d at 707 simply found where there was a due care lack of J., This, noted, dy, dissenting). as is consistent or even where there was recklessness. Accord Supreme explicitly with Caminos. The Court has Cassiere, 1006, (1st United States v. 4 F.3d 1023 endorsed the Model Penal Code formulation for Cir.1993) ("Caution necessary giving a will States, knowledge. See v. Turner United 396 U.S. possibili ful blindness instruction ‘because of the 416, 398, 642, (1970); Leary 90 S.Ct. 652 v. ty jury employ negligence will be led to a States, 6, 93, 1532, United 395 U.S. 46 n. 89 S.Ct. standard and [on convict a defendant the 93, 1553 n. 23 L.Ed.2d 57 ground] illegal that he [an should have known " taking place.’ (quoting act] was United States Property 14. See United States v. One Parcel at of 143, (1st Littlefield, v. 840 F.2d 148 n. Cir. 3 70, (2d Cir.1993); 755 Forest 72 1988))). Ferrari, v. United States 1980 Red 827 F.2d 477 some, including This threat has led the drafters (9th 1987); $4,255,000, Cir. v. United States 762 Code, of the Model Penal to conclude that the 895, (11th Cir.1985) (upholding F.2d 906 concept simply of willful blindness should forfeiture where the owner "indicat knowledge. folded into the definition of See acknowledgement disquieting ed a tacit of his 2.02(7); Note, Model Penal Code see also Mod- large deposits coming belief that these cash were 2.02(7) el Penal Code Section ness, Blind- Willful depositor] by way [a to of Colombian couriers (1993) (arguing 102 Yale L.J. 2231 that carrying narcotic-generated "[the cash” and willful blindness should be eliminated and re- ‘gnawing owner] had a belief that the funds placed knowledge with the broader definition of tainted'"), denied, being dealt with were cert. Code). found in the Model Penal Under the 795, 474 U.S. (1986); 88 L.Ed.2d 772 2.02(7), Model Penal Code when of F.Supp. offense, 1977 Porsche Carrera 748 at a an fact is element of an it is established ("The language 'willful blindness’ sub person high probability “if a is aware of a of its (4)(C) (6), existence, section is absent from subsection but actually unless he believes that it does legislative history differing provision not exist.” The Model Penal Code behind the lan "requires guage may suggest Congress high probability that an awareness of a intended exists, merely disregard, prove a fact a reckless or a claimant the absence of all three circum- trafficking can used facilitate way blindness willful Because explained that “once claimant drugs”, and owner defense part of innocent become signal, or she can no ignore the compo- chooses to “knowledge” is if the sections those blindness, lack of willful blindness longer establish incorporate willful nent is read ” Amicus of the vehicle.... prior use “deliberate adopt have tended courts objective “due language is an argues that this of willful blindness formulation ignorance” dis- (7). See, formulation. Red care” e.g., 1980 881(a)(6) and §§ agree with ami- inclined to agrees. We are (stating that at 480 Ferrari, F.2d cus, sure. Al- though cannot tell for we knowledge that have avoided could claimant supported its con- though court trafficking the district involved Ferrari (inter- Wagoneer, 976 citing Jeep by clusion in the sand” “sticking his head only by omitted)). subjective Thus, at which endorsed interpreting F.2d quotation nal standard, cited it then owner to show require the F.Supp. at Carrera that its Porsche ignorance ensures of deliberate lack objective one. seems to endorse which is the same defense by (7).15 Moreover, announced the standard §§ under required owner rather on the district court focuses the Standard Application 2. (it suggestion “[s]uch than the car stated that the vehicle was might arise from the fact us, the facts before Turning now to drug trafficking”), one accused owned today, adopt standard erroneously, see but it does so posi found if were not be could infra judgment vacate the therefore will We did not tively established remand for reconsideration forfeiture and used Rolls know that today. We we articulate under the standard just Similarly, if Goodman were trafficking. provide guid- opportunity some take this negligent, or mistak intelligence, lacking considering court in to the distriсt ance to have been en, not be found he should issue on remand. fails to But if Goodman show willfully blind. high proba was a know there he did not the record before us that appears It from to traffic had been used bility the vehicle that virtually undisputed that took it is Goodman that he took fails to show then drugs, and investigate whether the Rolls steps no investigate whether steps affirmative drug to facilitate traf- Royce had been used drug to facilitate in fact been used had car acquired prin- it. ficking at the time he The satisfied his bur trafficking, will not have he therefore, remand, cipal issue on reduces willfully he not blind. that was den to show inquiry: following whether Good- factual determine Unfortunately, high probabil- we cannot knowledge of a man had actual appropri used the Royce drug court ity the district was used in whether that the Rolls held that Goodman when it trafficking. ate standard willfully not blind. that he to show was failed Although the standard an the willful court district formulated knowledge actual requires proof of “ignoring] signal nounce as standard

blindness knowledge high probability, such is com- might have been that vehicle suggestion consent, by sticking knowledge one's knowledge, ance of head and willful blind stances— knowledge, equated with actual as of the subsections sand will be prevail under ness—to excep regardless is so innocent owner in criminal cases. This 881 to which the section (a)(7) States v. One do not applies.”). But see United that fact sections tion Family exception at 6960 Mira- Single explicit Residence Located 'willful blindness’ contain an Cir.1993) (11th Ave., owners, F.2d sec- Flores for innocent unlike to the defense However, whether (finding 881(a)(4). irrelevant failure to due exercise tion eyes "deliberately to what his he closed owner preclude reliance on the care does not truth"). every ¶ 4.03[c][ii], reason believe defense.”); had id. n. 82 4-90.2 (describing equate willful that cases "clearly wrong” care with lack due with the is also consistent conclusion 15. This equat- stating blindness should that willful leading See 1 view of a commentator. Smith, ("Deliberate negligence). 4.03[c][ii], ¶ ed with avoid- at 4-90.1 90.2 monly proven by alone, inference from circumstan- Standing an accusation drug traf- Thus, ficking, even if in example, indictmеnt, evidence. if it is of art tial form does not sufficiently create a high probability that proven Goodman knew that Scarfo’s that of the accused was used to only through drug income was trafficking, drug facilitate trafficking. view, In our it is the court that finds such facts are suffi- unreasonable to conclude that a claimant’s support cient to that there conclusion was a knowledge accusation, of such an without high probability Royce the Rolls had n more, supports the that the claim- inference drug trafficking, been used facilitate high ant aware of a probability that all of reasonably court could district infer that of the accused is tainted. The actually high prob- knew about the may accused have sources of income from ability. may reject The court testimony also legitimate businesses, and, in the context of contrary incredible, it finds is case, even if Goodman believed that such as Goodman’s claim he did not had legitimate income, Scarfo sources of high probability know about the that the car may have believed that his income came drug facilitated a transaction because Scarfo illegal activities that had little or noth- against drug LCN had a rule deal- ing drug to do with trafficking, or that Scarfo ing. might have owned other cars other than the Royce Rolls that he in drug used traffick- question One that has arisen on this ing.16 We doubt that civil pro- forfeiture appeal “high probability” visions, which combating are aimed at drug prong the willful requires blindness test trafficking, are meant to allow forfeiture of knowledge high probability of a that the vehi property used in bought proceeds itself was drug cle used to facilitate transac non-drug fi’om related activity. tions, or whether it knowledge refers to of a We do not suggest mean to that Goodman high probability that the former owner of the has shown that he was not blind. was accused of trafficking. vehicle So We state knowledge his that Scarfo stated, simple. the answer is Because this not, had been drug dealing indicted for did forfeiture action focuses on the taint of the itself, necessarily invest Goodman with itself, question res the relevant is whether knowledge high probability of a that the ear high probability Goodman knew of the However, was tainted. appears there to be the Rolls itself was used to traffic some evidence that Goodman knew more drugs. question, however, The more difficult Royce’s particular about the Rolls involve previous is whether own illegal activity simply ment than that its had been drug trafficking er accused of owner had been trafficking. accused sufficient, standing alone, support to an infer Specifically, shortly after he received owner that the ence transferee was high aware of a ship of Royce, spent the Rolls Goodman probability that the car itself was used $4,000 to removing equip counter-surveillance drug facilitate trafficking. We do not think event, any from it. ment In we leave the so. question to the court on district remand.17 example, may 16. For Scarfo very have received a easily the car could have been a fee. We good loan-sharking, deal of his income from ex- therefore believe that we should at least touch tortion, illegal gambling operations. upon question Thus whether our decision on this may thought Goodman have probability question creates an strain on the unwarranted quite Royce pur- attorney/client was low that relationship. the Rolls was proceeds drug chased trafficking might argued It be the rule we that fashion of which Scarfo was accused or that Scarfo had today, applied when in the context of an attor- Royce drug used the Rolls transactions. fee, ney's part creates an incentive on the of the attorney investigating to avoid the client’s case vexing aspect problem Another might 17. of the something bears for fear that he or she discover just any acquir- negate mention. Goodman was not old that would an owner innocent defense Royce er lawyer. of the Rolls subject Obviously was a And the fee to forfeiture. a —he although Royce the Rolls potentially was not transferred to rule that creates such an incentive services, legal repayment compromises him as a fee for but as an Sixth accused’s Amendment debt, of a scarcely important right we can lawyer thoroughly writе on so to have a investi- who subject recognizing gates and sensitive a without that his or her case. Road, he that, under 6109 Grubb argument that, “willful sum, to avoid the hold we innocent owner still be entitled de- should innocent owner of the prong blindness” not that he did if could protection he show 881(a)(4)(C), dem- must Goodman fense Royce to Rolls to the use subjectively aware consent not he was that onstrate See 817 drug transaction. a facilitate the Rolls that high probability aof also noted As have at 580. we F.Supp. used to going to be or was was used either that, or, above, Road held transaction, 6109 Grubb if he drug an facilitate 881(a)(7) forfeiture, an owner of a steps reason- context affirmative was, he took that be knowledge of the taint will still who had to determine circumstances able upon a show- innocent an owner going to be or considered was the vehicle in fact whether to the use not consent ing he or she did that also conclude that We so had been used. court taint. The district standard, caused the fact that which the mere applying Road, stating apply 6109 Grubb had been refused that Scarfo aware Goodman 881(a)(4)(C) govern not, not by it- that case did trafficking does drug accused high of a forfeitures. was aware self, that show Goodman was tainted. probability that claimant admit- In 6109 Grubb should whether now consider We property had been used knowing that her ted innocent defense to an entitled also be however, that dealing. argued, She for did not consent if he shows that knowledge, she should notwithstanding such improper use. Royce’s Rolls owner status to innocent be entitled still she did she could show because Independent An Consent Is Lack C. Relying princi- therefor. consent to its use 881(a)(tí? Under Defense that words the canon of construction pally on given indepen- by “or” be separated an must Analysis concluding panel agreed, meaning, dent conclude on re- court the district Should knowledge or consent lack of either blind, mand that Goodman F.2d owner status. 886 established such a conclusion question will arise at 626. status. innocent owner his defeat claim will the 6109 Grubb mentioned, We believe that court the district As has been analysis applicable did, Road rejected Goodman’s believed receiving property, then the rule argument an attor- taint assumes that an But such after for an innocent owner create disincentive ney benefit of the would lose the fashion would against proceeding a fee if attorney investigate case. It would a forfeiture defense in client's receiving the attorney the taint she discovered an merely he or create an incentive after assumption to he an (or retainer) think such fee. We do not up-front. require payment of the fee suggests one case Although at least sound. hand, or other if indictment the other On subject even when might to forfeiture a fee discovery itself, to create enough, accusation serious transfer, taint occurs after the of the high probability taint that of the of a F.Supp. at Carrera Porsche see 1977 investigate trigger duty the source of would lawyer is un- (stating even when fee, attorneys to take on would be reluctant precise moment of at the aware taint trafficking. Generally accused of clients if he she learns acquisition, a is forfeitable fee ownership speaking, claim be should an innocent afterwards), Vista 92 Buena soon of the taint simply the because defeatable - contrary. at suggests See U.S. the Avenue drug trafficking, a by accused of one owned J., -, dissenting) (Kennedy, S.Ct. at 1145 accept a lawyer a fee in would hesitate ever plurality (“another given to us oddity now the case, case, money laundering a structur- drug a gratuitous transferee must for- a decision is that 981(a)(2) (West case, Supp. § ing see 18 U.S.C.A. drug deal she of the proceeds if knew the of feit 1963(c) case, § 1994), 18 U.S.C.A. a RICO see or proceeds, but received the deal she before course, is, 1994). (West Supp. no abso- There of (em- after.”) it a moment not she discovered if attorney right the of Amendment lute Sixth And, in the next phasis supplied). as we discuss Drysdale v. United choosing, Caplin & see one's subsection, subject may forfeiture not be fees 624-25, States, 491 U.S. attorney of the taint the had known even if the (1989), but we do doubt 105 L.Ed.2d received, long he or she as the fee time such a to induce the statute was meant creating the taint at aсt the did not know about events, and vexatious At all difficult result. attorney would If an the time it was committed. consideration. problem needs much further only the he or she discovers not lose the fee when First, practical pur- for two reasons. for all words, In exclusive. other government the poses, although the willful blindness. lan- maintains that if the court finds that the 881(a)(4), only § guage appears owner knew that conveyance the tests the was used to drug transactions, facilitate ownership provi- for innocent under all it logically three must conclude that virtually identical, the sions are owner was willfully and hence the thereto; blind concomitantly, government construction should be supra consistent. See contends that if the court finds that at 809-10. Since the reading choice between willfully owner was conveyance blind the conditions for innocent owner status in having been used to facilitate transac- disjunctive conjunctive or will have a tions, it must necessarily conclude that the defenses, dramatic effect on the nature of the knowledge owner lacked According- thereof. the construction should remain consistent ly, government maintains, an owner can across all keep three in order to subsections always show that he or she either lacked identical,” “virtually the defenses supra see knowledge blind, or was not causing at 809. the 6109 Grubb Road construction to create Second, importantly, and more the central the absurd situation in which an owner could logic of the 6109 Grubb Road decision mail- successfully make out the innocent owner dates the same result in the context of simply by defense failing to satisfy one of 881(a)(4). mentioned, § As has been the conditions for innocent owner status. panel ultimately 6109 Grubb Road based its analysis, Under this it argues, 6109 Grubb language decision on the and structure of the apply. Road cannot statute, particular, the use of the tradition But in the logic, syllo world ally disjunctive word “or.” 886 F.2d at 626 gism sound, is valid if its premises are (“The use of or in (knowledge statute appears it and to us one of govern consent) means that given each word must be premises ment’s is false. As our discussion independent ordinary meaning.... its and of willful previous blindness in the section Reading ‘knowledge or consent’ as the can demonstrates, willful blindness and knowl require, ons of construction we conclude that edge mutually are not exclusive states of [the can ownership claimant] show innocent blindness, mind. Willful as it used by proving by preponderance of the evi 881(a)(4)(C), § and itas has been used tradi dence that use of the tionally, way is an proving alternative occurred knowledge either her without knowledge. terms, “knowledge” compris consent”). without her Although knowledge subjective es both actual belief —a 881(a)(4)(C) adds blindness no something is true —and willful blind tion, provi structure subjective ness —a highly belief sion is otherwise to that of identical probably that something is true. In other 881(a)(7), including the use of the tradition words, willful blindness ais subset of knowl disjunctive al “or.” The asks us reason, edge. proof For this of willful blind to overlook the obvious similarities between ness has been prove knowledge sufficient to 881(a)(4)(C) (7) §§ purposes apply (7). §§ in the context of Since ing 610 Grubb contending that proof knowledge such establishes in the con transpose 881(a)(4)(C) 6109 Grubb Road to sections, text those it also suffices to es would lead every result that absurd tablish context owner could establish the innocent owner 881(a)(4)(C), for we see no reason to con defense. strue the term “knowledge” government’s argument goes as fol- differently §§ It fol First, lows. government recognizes lows, then, that an prove owner’s failure to if 6109 Grubb Road is extended to simultaneously lack willful blindness' 881(a)(4)(C), § prevail an can on the to a amounts failure to lack of prove knowl by showing owner defense either a edge purposes for of statute. As a re the lack of willful sult, or a lack of knowl- illogical government the result the fears Second, edge. the ‍​‌​‌​​‌‌‌​​‌​‌‌‌​​​‌​‌​‌‌​‌​‌​‌‌‌​‌​​​‌​‌​‌‌‌‌‌‌‍assumes that apply if we 6109 Grubb Road 881(a)(4)(C) blindness and mutually § are illusory. is transactions, not that he was 881(a)(7) facilitate has been inter- § that fact The car, such a use of the position prevent own- in a of innocent a claimant deprive

preted to car was that the that he did know not was blind the owner status where er purpose at the time being for such gov- If used the another reason. important knew, or, all if that he took used he was so that willful blindnеss correct were ernment If prevent such use. steps mutually reasonable exclusive knowledge are and actual Royce the Rolls not that did know states, “illogical” result Goodman the then mental 881(a)(7). in the DiSalvo or going to be used § was of in the context exist also would simply could not have meetings, he Ianarella assumption words, government’s the In other result, if use. As even mu- consented to such a knowledge are willful blindness that actually or was willful- knew about Goodman with the well set- is at tually odds exclusive improper use at the ly past blind to the ear’s holding willful blindness is law tled case it, ownership of he he obtained could the inno- time claimant of deprive a sufficient use, 881(a)(7). improper short, to such not have consented §of defense cent owner owner. Be- be an innocent really and hence would a veiled argument government’s the person can how a con- just we do not see not of cause its 6109 Grubb criticism of if property of he 881(a)(4)(C), particular to a use and does sent § not application 881(a)(7) § she did not know would distinguishing a basis for provide use, the at or the time 881(a)(4)(C). so used before § from approach means that Grubb Road why the ratio no reason can find We did not know subsequent owner who about apply not should Road of 6109 Grubb nale creating on the act the taint the forfeitures under equal force to always be would or before it was committed 881(a)(4)(C). history clear legislative § The if owner under the statute —even an innocent § ly us that the defenses tells creating the act the or she knew he about same; 881(a)(4)(C) the struc are he or she received taint at the time 881(a)(4)(C) is iden language in ture of property. 881(a)(7), can so the same that in tical to by applying result we reach controlling 6109 were ons of construction question raises the Road Grubb identical result here. lead to an Road Grubb original properly decided as case was 881(a)(4)(C) embody any not does Section We, course, avoid the of cannot matter. which would from policy distinct Third holding opinion, of that see Circuit application of 6109 prevent otherwise 9.1, but the Operating Procedures Internal of its lan the construction Roаd to Grubb here seems Road created result 6109 Grubb inno conclude therefore guage. We sufficiently counterintuitive that at first blush is avail defense cent owner explaining. As we de- the case needs more prove any one can any owner who able to below, given in although the rationale scribe consent, knowledge, lack of a lack either doubt, Road is not free 6109 Grubb Accordingly blindness. of willful or lack policy. quite as a matter result is sensible to innocent own be entitled should Goodman below, Indeed, puzzling as we also detail to the use of if did consent he er status at the feet of the 6109 result cannot be laid facilitating drug traffick the Rolls view, Rather, in panel. our Grubb Road ing. nearly impenetrable is the cause intervening Supreme statute and an Road Problem 2. The 6109 Grubb Vista, decision, impor- 92 Buena Court application of 6109 straightforward A panel Road 6109 Grubb tance of which the suggests of this case to the facts Grubb Road anticipated. would not have remand, show that could that on begin by noting that the ratio improper use of We did not consent Road is vulnerab provided 6109Grubb he did not own nale Royce by proving that Rolls argument that the existence le.18 The it was used to the time the car at decided, that the decision incor- judges this court believed three on 18. At the time it

815 knowledge language nearly impenetrable. is the words The diffi- the word “or” between disjunctive reading requires culty a of linguistic and consent with the 6109 Grubb Road that an owner needs to estab- the conditions interpretation by removing is demonstrated status, arguably (which to show innocent owner lish negatives two of the should' not importance of context in de- the statute) overlooked change meaning of the the and the termining whether the conditions should be (which proof language merely burden of indi- disjunctive conjunctive. or treated satisfy requirements-of cates who has to requirements in a statute to be are Whether indicating party the statute without what the disjunctive conjunctive treated as or does not show): with the burden must always turn on the word “or” is whether [ ] shall forfeited used; rather it turns on context. For exam- 881(a)(7) [§ ] to the extent of an interest of provides that ple, if a statute “nо cars or owner, by an reason of act or omission motorcycles park,” per- are allowed in the a ... committed or ] omitted with[ trying keep park out of the son a vehicle knowledge or of consent the owner. the vehicle is either a need show negatives Parsed and the burden of motorcycle. perspective car or a From that excised, proof language provides the statute disjunctive. other the statute is On the that an act or omission committed under hand, person trying bring a vehicle into either of preclude the two conditions will an it park must show both that is not a car If innocent owner defense. an act is commit- motorcycle. it and that is not From that knowledge, forfeited, ted with the vehicle is conjunctive. perspective, the statute is De- consent, and if it is committed with is context, disjunctive pending on the relevant Thus, conjunctive, forfeited. than rather conjunc- always can as a test be reformulated disjunctive, reading plausible. seems tive one.19 course, might panel, Of one resort to the

To be fair to the 6109 Grubb Road legislative history part problem language, of the in both 6109 Grubb Road to construe the language unfortunately legislative history in but and this case stems from the of negatives, unhelpful Filled with its analy- the statute itself. on this issue.20 The textual Property rect. See United States v. Parcel Real tions for the innocent owner defense should be of Road, (3d disjunctive conjunctive. Known As 6109 890 read Grubb F.2d 659 in the or Both Cir.1989) (sur 881(a)(4)(C) petition rehearing) (Greenberg, 881(a)(7) sparse legis- § have J., dissenting). point. legislative histories lative on this The his- statutes, however, tories from both reference principle symbolic logic 19. A used in called De- 881(a)(6). legislative reference Where Morgan's language how Theorem illustrates (7) history §§ is made to phrased disjunctive rephrased can be 881(a)(6), appropriate legis- at the it is look conjunctive. DeMorgan's Under Theorem history construing lative those (A B)] denial [not of the alternation Road, at subsections. See 6109 Grubb 886 F.2d equivalent conjunction [not to the of the denials 625; United States v. One Parcel Real Estate Loomba, A and not See K. The Innocent B]. Lalit Road, 1012 Germantown Property Owner Real Under (11th However, Defense Forfeiture Cir.1992). although Congress Comprehensive Crime Control Act suggested proper interpretation (1989); Fordham L.Rev. n. 68 see also “knew or consented” Property United States v. Certain Real & Premises require prove would owner to the lack Noyac F.Supp. Known as 890 both, Explanatory see Joint Statement of Titles II (E.D.N.Y.1990) (specifically referring 113-15 Psychotropic and III to the Substances Act of 881(a)(7)), DeMorgan’s construing § Theorem 17,647 (1978), reprinted in Cong.Rec. rev'd, (2d Cir.1991). 945 F.2d 1252 Section 9496, 9518, (”[T]he 9522-23 U.S.C.C.A.N. 881(a)(7) requires owner to establish that the subject not be to forfeiture unless would drug trafficking was committed "without his [illegal con- owner knew or consented knowledge Showing or consent.” that some duct].”), questioned some have thing knowledge was without consent is a legislative history statement from the is entitled alternation; according denial of the thus to De- weight parts to much because other of the docu- Theorem, Morgan’s the owner must show the on how forfeiture stat- ment show confusion denial, is, conjunction of the that there was Loomba, operate. ute was meant to See 58 Ford- knowledge and no consent. ham L.Rev. at 484. 881(a)(4)(C), (6) incorrectly legislative apparently §§ 20. histories of The statement intimated (7) proof clearly as to do not state whether the condi- that the burden of 816 businesses, anonymous phone calls however, and made not, leave 6109 Grubb does sis contrary, activity Quite report drug at his police to the the to insupportable.

Road justify owner); the reasons different was an innocent United property three at least First, 6109 approach. Property Road Premises Real & 6109 Grubb States v. Certain making the avoids Ave., construction F.Supp. Road Liberty Grubb 710 Known as 171-02 surplusage. Constru- requirement (E.D.N.Y.1989) “consent” (holding on a mo- 50-53 require claimant to ing statute summary judgment that a landlord tion for knowledge consent renders and negate both property drug in a infest- purchased had who In other language redundant. the “consent” fixing neighborhood with the intention of ed a lack of words, claimant established if a who, knowledge of admitting up, it and after necessarily negate knowledge, would building, cooper- drug activities in his related activity, “in beсause consent up, police try pressed to clean it ated with activity, drug one must order to consent drug trespass charges against some criminal v. States St. know about it.” United 141st dealers, police to tear down and allowed (2d Cir.1990), cert. 878 Corp., F.2d that the dealers had fences and steel doors denied, S.Ct. 498 U.S. surveillance, to obstruct had shown erected (1991) (quoted in 1 Smith, at L.Ed.2d 1099 jury that he was an enough for a to find ¶ 4.02[6][d]). conjunctive reading, Under owner).22 totally unneces would be term consent “[t]he Third, Road construction 6109 Grubb never reach sary factfinder would since the potential problem with avoids a constitutional once it concluded issue of consent (This justification is inde- third the.statute. knowledge had or lacked either the claimant one.) pendent of but related to the second ¶ Smith, at knowledge.” 4.02[6][d].21 cognizant drug a landlord of transac- When Second, importantly, more the 6109 occurring property tries to tions his her ameliorates some Road construction Grubb everything reasonably can to do he or she the forfeiture statute. effects of the harsh way, prevent property in that use keep It allows an owner continues, dealing drug forfeiture of the everything reason when or she has done may unduly oppressive. See in ably prevent its use activi possible to Calero-Toledo, 689-90, 416 U.S. at See, Right v. All Title ty. e.g., United States at 2094-95. as 710 Main Property Known & Interest ' surprisingly, 6109 Grubb Road is now (S.D.N.Y.1990) Not St., F.Supp. 524-25 split question on one side of a circuit on the por who closed off (holding that a landlord the claimant can achieve innocent trafficking, building used tions of a by showing the lack of one of drug trafficking, owner status discouraging posted signs of one of the While the Second Elev- operation conditions. restricted hours irrelevant). something knowledge government, become would Conse- was on the consent case, clearly redundancy argument at least one commen- quently, not the while the does the statement concluded from this that tator has may reading, not mandate the 6109 Grubb Road incorrectly aspects understood other have impossible predicament textual does show the well, including whether the owner the statute statutory language creates. prove and lack of both lack of must entirely to us id. It is not clear consent. See Circuit, however, quite 22. The Second has set put proof does the burden of that this statement high threshold for owners in similar situations to and, did, why even if it such a on the prevent they steps show that took reasonable ignore the lan- that we should mistake means improper use. See United States v. Two Par- prove suggesting guage that the owner must Street, Property at 19 Castle cels Located and 25 Nevertheless, knowledge and consent. lack of Haven, Conn., (2d Cir.1994) New 31 F.3d 35 legislative history very agree is not that this (owners" using drugs whose children were helpful. and who asked their children to attend a home course, any reading (conjunctive or dis- 21. Of program, children rehabilitation sent some of the junctive) render one of the two terms redun- will police activity away, and notified of narcotics (consent) is a subset dant. As one term every neighborhood, did not undertake rea- disjunctive (knowledge), the alternative other reading improper preventing use sonable means of Road renders the knowl- of 6109 Gmbb owners). and were not innocent (i.e. edge superfluous once the claimant term consent, finding successfully shows a lack of people disagree correctness, can have followed 6109 Grubb about its enth Circuits Corp., v. St. 6109 Grubb Road see United States is defensible. Its construc- 141st (2d Cir.1990), 870, sensibly cert. de F.2d 877-80 tion of the statute 911 works to the nied, 1109, 1017, people 111 112 benefit of 498 U.S. S.Ct. who own before (1991); However, illegal 1099 United States v. One the act is L.Ed.2d committed. as we discussed, Family Single Residence Located at 15603 have 6109 Grubb Road ensures (11th N, 976, post-illegal-act F.2d 982 Cir. that a 85th Ave. 933 transferee who did not 1991) (stating illegal that an with actual know of the act owner at the time it occurred knowledge always was used or is will able make out the innocent being drug trafficking keep defense, used for can regardless owner of whether he or “everything property if he can show that she knew about taint at the time of the reasonably possible prevent was done” to transfer. taint),23 adopted the Ninth Circuit has opinion The 6109 Grubb Road makes no position, opposite see United States v. One problem. mention of this But that is under- 111-B, 1443,

Parcel Land at Lot 902 F.2d of because, standable at the time 6109 Grubb Cir.1990) (“[I]f (9th claimant 1445 either decided, Road was its construction would activities, illegal knew or consented to the rights post- have had effect at all on the of unavailable.”); the ‘innocent owner’ defense is illegal-act transferees. At that time it was Road, Noyac F.Supp. see also 890 739 at generally assumed that because of the “rela- (providing good explanation a 113-15 of the statute, provision tion back” of the forfeiture Road); problem with 6109 Grubb 1989 cf. 881(h), 21 U.S.C. which vested title (8th Cir.) Jeep Wagoneer, F.2d at 976 1174 United at illegal States the moment of the (noting split taking posi the circuit without a act, post-illegal-act a transferee could never question).24 tion on the have better title than the United States and upshot analysis of this extended could never benefit from the innocent owner that, 1993, however, is Supreme 6109 Grubb Road while reasonable defense.25 In Road, Dole) (proposing 23. See 1012 Germantown 963 F.2d at of Sen. an amendment (11th Cir.) 881(a)(7)’s (interpreting § remedy 1504-05 in- the "incorrectness of the Cong.Rec. require only holding”) [6109 nocent owner defense to Grubb Road ] with 139 S15,612-13 10, 1993) (statement prove knowledge (daily owner a lack of or a lack of ed. Nov. consent; bill, 1655, Jeffords) by prov- (introducing "an owner can avoid forfeiture of Sen. a S. non-consent”); (1993), ing ignorance Cong. either United 103rd 1st Sess. the Civil Asset Act, Property, changes States v. One Parcel Located at 755 Forfeiture Reform which the lan- (2d Cir.1993) ("The guage clearly adopts Forest 985 70 F.2d so- so that it bill, approach). called ‘innocent owner’ defense is an affirmative 6109 Grubb Road The Senate S. 1655, 2417, proven by companion legislation defense to be It owner-claimant. to H.R. (1993), permits Cong.2d avoid owner to forfeiture establish- 103rd Sess. introduced in the ing [by preponderance by Representative Hyde. pro- a evidence] either House The bills knowledge pose dramatically had no of the narcotics to weaken [s]he 21 U.S.C. 881 activity, knowledge, designed specifically reject [s]he or if had that she did are case law re- (internal quotations quiring not consent to ted)); it.” omit- an owner to show lack of both knowl- S15,613 Cong.Rec. Property edge United States v. Certain Real & and consent. 139 Street, 10, 1993) (daily (citing Premises Located at 418 57th 922 F.2d ed. November United 129, 111-B, (2d Cir.1990) (reversing grant 131 v. One Parcel Land at Lot States 902 1443, (9th Cir.1990) summary judgment "holding (endorsing because the F.2d a con- 1445 junctive 141st Street mandates lan- consideration of consent as construction of the innocent owner adjudicating guage)). well as when an inno- forfeiture"); cent owner defense United Land, States v. One 107.9 Acre Parcel 898 F.2d Colorado, Eggleston 25. See v. 248 (3d Cir.1990) (following 396 6109 Grubb Road (10th Cir.1989) (holding that the innocent owner denying a non-consent defense on the subsequent provision help could not such owners ground supported by nothing that it was other owners; they "[t]he because were not innocent self-serving than state- uncorroborated exception applies whose owners ments). prior illegal to the date of the act interest vests forfeiture"), forms the basis for the cert. that denied, Indeed, subsequent Congress statements in U.S. 110 S.Ct. 107 Nissan, (1990); disagreement Congress show within over wheth- L.Ed.2d 1019 In re One 1985 (4th Cir.1989) (holding er 6109 Grubb Road misread the statute. Com- F.2d 1317 the same Cong.Rec. (1990) (statement pare citing Eggleston and United States v. 6109 Grubb possi- “[he] owner because could v. Parcel States United decided Court ... activi- Improve bly consented to Land, Appurtenances & have Bldgs., Avenue, Rumson, result, the at 1585. To avoid that Buena Vista ties.” Id. at 92 ments — -, N.J., Road declined to follow the 6109 Grubb U.S. court (1993), holding context, that the relation and concluded approach L.Ed.2d 469 in such rights of a not defeat the does provision ignored should be back the consent otherwise sat transferee who post-ülegal-act considering post-illegal-act altogether when for the innocent own requirements isfies simply irrelevant “Consent transferee: 881(a)(6). Thus, 92 Bue er defense claims of examining the innocent owner when making the has the effect Avenue na Vista Id. post-illegal act transferees.” language of the stat “knowledge or consent” an By performing might what be termed appli by Road interpreted 6109 Grubb ute as judicial legislation, the court closed a act of and, in transferees post-illegal-aet cable to post- prevented and “loophole” in the statute insulating turn, problem of cer the crеates knowledge at the illegal-act transferees with reasonably might not one tain owners who property’s transfer of the taint time of the deserving. to be consider escaping statute. But the from the forfeiture simply draws no such distinction be- statute Dilemma Dealing The 3. With post-illegal- owners pre-illegal-act tween and problem possible to this One solution justify reading cannot act transferees. We potentially innocent own would be to divide disjunc- very language in a statute the same categories, pre-illegal-aet owners into two ers and tively respect with to one class of owners transferees, ‍​‌​‌​​‌‌‌​​‌​‌‌‌​​​‌​‌​‌‌​‌​‌​‌‌‌​‌​​​‌​‌​‌‌‌‌‌‌‍apply and post-illegal-act another, conjunctively respect disjunctive test to the Road the 6109 Grubb any Congress to instruction from absence conjunctive category the test the first but that a failure to do so. The dissent contends is, fact, approach in what one.26 That second judi- draw a distinction would constitute such tak court in Florida has one federal district abdication, require citing cases which us cial Parcel Real States v. One en. See United “to construe a statute to avoid absurd re- St., 831 Located at S.W. Estate 48th 664.0 sults, interpretations if are avail- alternative (S.D.Fla.1993). In S.W. F.Supp. 1578 6640 legislative pur- consistent with the able and Street, the court was confronted with 48th Schneider, 14 F.3d pose.” United States v. problem in essentially same this case the (3d Cir.1994) 876, (citing v. 881(a)(7)). 879-80 applying (except that Griffin Contractors, 458 U.S. 102 S.Ct. Oceanic recognized that 92 Buena The court Vista (1982)). obligation 73 L.Ed.2d 973 The problem applying in created a Avenue expressed in cases not involve as these does post-illegal-act provision to innocent owner however, reading statutory lan- support, jurisdictions (including its in transferees own) variably justifica- in guage the absence of a ap Road following the 6109 Grubb language tion in either the of the statute or that under such an proach, since it realized ease, legislative history. there is be an this approach, the claimant would declared law, (W.D.Pa.1989), example, principal support allows a to be bound F.Supp. 708 698 conclusion); by agent's prior princi- S.Rep 98th unauthorized act if the see also an its No. in, Sess., (1983), reprinted Cong., pal 2d 1984 knows about it and fails to take affirmative forfeitures, ("In steps civil See Restatement U.S.C.C.A.N. to disavow the act. (Sec- voidable, [subsequent] for the Agency such transfers are But such a notion of ond) of property the time of considered 'tainted' from what is retroactive consent is stretch from Indeed, prohibited acquisition.”); ordinarily by United States its use the word consent. meant Checks, $41,305.00 this, Currency agency v. & Traveler's perhaps in law the because of even in Cir.1986) (11th (suggesting requires special concept relation- of ratification purchasers subsequent fide could not contracting party bona ship prevent and does not 881(h)). §of owners because keeping profits a transaction in- from from person if he did not duced the fraud of a third possible approach of the fraud until after the transaction would be to treat know Another encompassing completed. that, Id. at cmt. c. We therefore believe a notion of "consent” as term given the absence of indication retroactive Under certain circum- consent. stances, employ contrary Congress, operating we should ret- the law treats consent agency definition of consent. roactively. concept more conventional of ratification in The 881(a)(4) in principal goal §§ instruction either the statute or tures. such (7), legislative history. which are at aimed proper- forfeitures of ty used to trafficking, facilitate is to Given stat give owners of an pre- incentive to interpreted by 6109 ute as Grubb Road fa vent use of that trade. context, vors Goodman we are faced People who are not owners at the time the with, least, very ambiguity simply act is committed position are in no 881(a)(4) statutory language. Because prevent improper use. Penalizing such nature, punitive quasi-criminal see owners would do accomplish little to the ends — States, -, Austin v. United U.S. of those forfeiture statutes.28 -, 2801, 2810-11, Moreover, at a much more fundamental (1993) (holding §§ L.Ed.2d 488 level, Supreme Court’s decision in 92 nature), punitive in are we must Buena Vista Avenue creates substantial apply lenity, requires the rule of which us to doubt post-illеgal-act transferees with- ambiguity in resolve the favor of the claim out act until after it ant, Thompson/Center see United States v. happened scope are within the of the forfei- —Co., U.S. -, - & Arms n. Avenue, ture In statutes. 92 Buena Vista S.Ct. 2110 & n. 119 L.Ed.2d 308 discussed, dicta, question the Court (1992) (applying lenity in the rule of constru- whether such scope owners were within the ing punitive setting).27 a tax in a statute civil 881(a)(6). § Although plurality sug- Thus, remand, if on Goodman can show that (and gested equitable that principles not the he did not know that the Rolls statutory language) might prevent post- being going used or to be used in the DiSalvo illegal-act knowledge transferee with of the meetings they or Ianarella at the time took illegal act at the time the transfer from place, then he will be able to show that he having the benefit of the innocent owner and, did not consent to the use under 6109 defense, ultimately it by avoided the issue Road, Grubb will be entitled to the innocent stating “respondent has assumed the owner defense. convincing burden of the trier of fact that she might tempted We to draw a knowledge alleged had no source of — similar by distinction to that drawn the court property].” at -, [the U.S. despite S.W. Street concurring opinion, however, absence at 1137. In a 664.0 48th any guidance Congress if the result Justice Scalia stated that would not be we have reached here were unreasonable. absurd to think that the forfeiture statutes post- But it is not to think post-illegal-aet unreasonable did not reach transferees who illegal-act property transferees of creating interests knew about the act the taint at the subject forfeiture, transfer, would not be to at least time of but not at the it oc time 881(a)(4) (7) respect §§ with forfei- curred: at -, (Ste 34,667 (remarks gal proceeds); 27. See also id. 112 S.Ct. at 2114 id. at of Sen. vens, ("The dissenting) Culver) ("This J. main function of the amendment would authorize Fed- lenity protect rule of is to citizens from the unfair moneys they eral officers to seize such much as application statutes.”). ambiguous punitive drugs now seize illicit and vehicles that are used transport or conceal these substances. argument suspect 28. This is somewhat if 6109 they certain cases would also be able to seize 881(a)(6), applies § Grubb Road since property illegal that is traceable to such transac- 881(a)(6)’s § language providing for forfeiture of tions.”); 98-225, Cong., see also S.Rep. No. 98th "proceeds ap- all traceable” to transactions 195-96, reprinted 2d Sess. in 1984 U.S.C.C.A.N. pears scope property to include within its in the (explaining part 3378-79 of the forfei- post-illegal-act hands of transferees. See 124 property Cong.Rec. ture scheme to reach that has been 23,057 (1978) (remarks Nunn) of Sen. by drug trafficking transferred one involved in 881(a)(6) (explaining that the rationale for forfeiture). Perhaps avoid because party "to make it clear that a bona fide who has transferees, appears post-illegal-act to reach we property or consent to the he owns Appeals have been unable to find a Court of having been derived from an transaction forfeited]”); squarely applied decision that property 6109 Grubb [would not have the id. at 23,056 (remarks Culver) analysis (describing Road of Sen. context of forfei- provision reaching property ture. traceable ille- NYGAARD, dissenting: Judge, possibility Circuit inconceivable I not find do post- transferees with post-illegal-act my colleagues that disagree I with illegali- knowledge of the earlier illegal-act interpret be controlled how'we should against 881(a)(4)(C) by forfei- provided a defense United States v. 6109 ty are (3d 623-26 Cir. Grubb would still be enti- ture. The Government 1989), they conclusion reach: that a and the held property tled property, in the sell purchaser of forfeitable friends and relatives by close dealer hands, lack of need show either a er’s their burden of to meet unable who are knowledge or a lack of consent to raise an illegal act ignorance of the proof as to 881(a)(7), “innocent owner” defense under it occurred. when thereby shield the from forfei — Avenue, at -, U.S. ture. Buena Vista (Scalia, J., If concurring). S.Ct. Indeed, majority’s holding completely allowing right, post-illegal- Justice Scalia provision the “willful nullifies blindness” post-illegal-act knowl section, ig- purchaser act transferees who is because use, property’s illicit scope of the forfeiture norаnt of edge outside the to be innocently, logically or can neither defensible, straightfor and thus statute is grant deny predeces- his nor consent how post- Road to application of 6109 Grubb ward Moreover, deny used it. one can neither sor would not create an illegal-act transferees give to the use of un- nor consent absurd result.29 control, ownership less one has either Avenue, in 92 Buena Vista matter, In his dissent legally cognizable in- for that some plural- Hence, Kennedy complained applying that “the terest in it. Grubb to will- Justice blind, fully post-illegal act transferees will forfeiture scheme that ity’s opinion leaves the them, create a virtual windfall for because drug Nation’s en- centerpiece of the is the majority’s they Following cannot lose. In quite in a mess.” forcement laws conclusion, may pur- such as one case, Kennedy present Justice context car, knowing chase a mobster’s it to have right. It not much only partially so drag trafficking, to with been used facilitate plurality’s opinion 92 Buena Vista full confidence that it is shielded from forfei- civil forfeiture laws Avenue that leaves the give his ture because he did not the mobster chaos, is it this court’s for that matter nor illicitly. consent to use the in 6109 interpretation of the statute Grubb majority reaches its conclusion be- estimation, problem origi- In our Road. it is unable to reconcile the district cause Congress it failed to draft a when nated Grubb, holding involving court’s into account the substan- statute that takes 881(a)(7), and United States v. 92 Buena those owners who tial differences between —Vista, -, 1126, 122 U.S. during improper use own the (1993), interpreted L.Ed.2d 469 which acquire those who it afterwards. and some of (h). reversing §§ the dis- schizophrenic reading Although a of the text court, not trict which held Grubb does solution, might problem, the better solve the 881(a)(4)(C), apply to forfeitures under believe, apply to 6109 Grubb Road. we majority concludes Grubb Good- statute, if it Congress should redraft man could invoke the innocent owner defense judgment result. The desires a different predecessor-in- if did not consent to his he vacated and the case the district court will be title’s use of the Rolls to facilitate proceedings transaсtions; consistent despite remanded for further willful- very ly blinding himself to that fact. opinion. with this indepen- wholly important statutes for reasons It is to note that the discussion in forfeiture defining Road construction of the on "knowl- dent of the 6109 Grubb 92 Buena Vista was focused defense, i.e., suggest Vista edge" on statute. We do not that 92 Buena under the innocent owner directly "knowledge" pre-illegal-act validates the 6109 Grubb Road construc- meant Rather, suggests Buena in this knowledge. that a tion. refer to 92 Vista Thus 92 Buena Vista post-illegal-act post-illegal-act that the result that 6109 Grubb context to show transferee with beyond is not unreasonable. would be the reach of the Road invites objective standard, negligent even or an due believe that Grubb care simply I do not precedent nor itwas inconsistent with our purchas- post-illegal-aet property applies defining willful blindness. With no case willfully of or blind who are aware ers directly point, this court on the district court facilitating illegal property’s past use their developed its own standard: nor Bue- Neither Grubb transactions. Lack of willful pre- blindness sufficient to transfer- applies post-illegal-act na Vista vail 881(a)(4)(C). as owner under interprets § and neither ees 881(a)(4)C) means that a claimant must language unique to The “willful blindness” show that he or she not has (a)(4)(C) ignored interpret inno- requires us to signal suggestion might or that a vehicle differently of that section cent owner defense have trafficking been used facilitate the that do not contain the from subsections illegal drugs.... the claimant [0]nce example language; willful blindness ignore signal, chooses to she can (a)(6) knowing I disallow §§ & would longer establish lack of willful blindness purchasers of otherwise forfei- blind prior use vehicle that would invoking the innocent property from table subject it to forfeiture. defense, expansively apply clearly is not I would conclude that facts when the district court’s Grubb these establishing standard for willful blindness is warranted. Caminos, consistent with United States v. majority’s reject resignation I also (3d Cir.1985), in which we This, difficulty. only Congress can cure this ignoranee” jury said that a “deliberate fear, judicial I is more an act of abdication charge make clear that “[m]ust the dеfendant judicial I than restraint. believe we are obli- subjectively himself was high aware of the gated of the statute and avoid to make sense probability question, fact in and not mere- may purpose. that contradicts its It a result ly that a reasonable man would have been true, suggest, my colleagues probability.” aware of the by Congress. I problem should be remedied Ultimately, the district court made a sub- however, suggest, that we cannot hide so jective inquiry into Goodman’s state mind easily. obligated to We are construe ignored when it found that he rather obvious results if alternative statute avoid absurd signals suggestions Royce that the Rolls available, interpretations plausible are and legally subject infected and to forfeiture purpose. with its United States v. consistent acquired when he it. As the district court Cir.1994) (3d Schneider, 879-80 found, knew of ac- Goodman Scarfo’s Inc., Contractors, (citing v. Oceanic Griffin Moreover, that he had countersur- tivities. 73 L.Ed.2d 973 458 U.S. equipment from the vehi- veillance removed (1982)). suggests continually cle further that he was sum, my colleagues’ according In legally aware that it was tainted after the conclusion, “straightforward” condensed basis, judge transfer. On this the trial made page Opinion, of their Goodman’s case credibility against a clear determination need that he did not consent to show claim, absolutely Goodman’s “that he had use, Royce’s illicit then the Rolls and is enti- indication the Rolls was ever [that] believe, to innocent status. I tled owner drug trafficking,” utilized to facilitate and however, analysis log- their contravenes both testimony to I con- found his be incredible. very purpose promulgat- Congress’ ic and subjective a employed the district court clude is, illegal drug § ing to curb activi- found that was will- standard Goodman and ty. respectfully I must dissent. blind, fully we must defer in the to which I affirm absence of clear error. would both I. subjective court standard and the district its First, however, willfully I conclude the district that Goodman was blind. assessment applied court the correct standard in assess- II. willfully ing whether blind 881(a)(4)(C). Second, held, § of meaning of The in the context within Grubb 881(a)(7), '§ forfeiture subsec- employed by district court was not a another test prove of knowl- owner fаils to that his lack tion, who knows a vehicle an owner blindness, will still be considered edge willful legally contaminated is not the result of upon showing that he or an innocent proving stringent standards for lack of less drug-trafficking to its not consent she did knowledge lack consent are then irrel- and of between similarities From use. evant. 881(a)(4)(C) sub- other forfeiture § premise language of is that the The Grubb 881(a)(6) (a)(7), sections, §§ particularly (no 881(a)(7) property § shall be forfeited disjunctive a read- rendered and because we “by any reason of act or omission estab- § in 6109 Grubb ing of by that committed lished owner to have been 881(a)(4)(C) § should concludes that majority knowledge or omitted without the or consent disjunctively. be read also owner”) disjunctively of that should be read 881(a)(4)(C),however, contains the Section Congress’ traditionally because of use of the language found in neither willful blindness disjunctive According word “or.” to Grubb’s (a)(7), nor civil forfeiture subsec- §§ .881(a)(7), analysis Congress’ §of use of the only provide for an innocent own- tions which implies provision .word “or” that each there is a lack of er defense when Moreover, given independent legisla- which refers should be consent. or a lack of 881(a)(4)(C)’s history Yet, disjunctive establishes weight. reading tive language is not mere sur- blindness willful 881(a)(4)(C), subsequent owner who not be treated as such. plusage and should investigating possibility avoids an obvious that his or her apply to forfeitures under forfeitable If we Grubb 881(a)(4)(C) blind, involving willfully post- transferor, always hands of the will be able transferees, wholly disregard illegal act to establish innocent owner status because of 881(a)(4)(C)’s §. sum, disjunc- his or her lack of consent. willfully Congress’ prevent intent interpretation tive is tanta- invoking the innocent blind owners ignoring lan- mount to the willful blindness prove If claimant fails to owner defense. guage of that subsection. I do not read it blindness, alternatively but lack of willful can way. by satisfying prevail the sure-winner defense prob- The district court also remedied this of consent —then the for a non-owner—lack by refusing apply to eases lem Grubb utterly language becomes willful blindness blind, involving willfully post-illegal act trans- nullified. ferees. district court differentiated be- 881(a)(4)(C)’s reading disjunctive A tween owners who use their to faсil- “knowledge, consent or willful blindness” drug trafficking, application itate where language into direct conflict with brings the sense, itself, producing an absurd result with Grubb would make blind thus subsequent willfully blind owners. respect transferees, post-illegal-act applica- where its Grubb, Nevertheless, majority, applying import tion would not. I too. The would should be allowed holds Goodman this differentiation is that we should not ownership based on lack prove his innocent blindly read the “or” in dis- an own- Since consent involves consent. rather, junctively, but should examine the property’s in acquiescence to the use er’s used, in in context which “or” is because Goodman, trafficking, subsequent as a apply some circumstances “or” does not or transferee, always be able to owner or will should be read as “and.” Reiter Sonotone v. legal if had no show a lack of consent 330, 339, 2326, 2331, Corp., 99 S.Ct. U.S. of the Rolls when interest in or control (1979) (terms by 60 L.Ed.2d 931 connected to facilitate the transaction. was used disjunctive given sepa- word must be their result, any finding that As a meanings rate unless the context dictates willfully to the vehicle’s taint when he blind otherwise); v. see also United States useless, “blind,” because if received it (8th Smeathers, Cir.1989) 884 F.2d willfully ignorantly, or he did not whether Moore, (citing United States v. consent, give deny know and could not his (D.C.Cir.1979)) (the 1029, 1040 word “or” if he was somehow authorized or em- even disjunctive except disjunc- connotes when a words, powered to do so. In other reading legislative tive would frustrate in- conceptually presupposes the ab- tent). sence of and consent. When PETITION PANEL Finally, does not create doubt SUR FOR Buena Vista transferees, aware of a post-illegal act REHEARING conveyance of its taint at the time property’s Feb. thereafter, from the forfei- should benefit petition rehearing by Appel- for filed innocent owner defenses. Sec- ture statutes’ lee, having judges submitted to been who law relation 881 codifies the common tion doctrine, participated in by Supreme the decision of this court and as defined back Stowell, v. judge Court United States U.S. no who concurred the decision hav- 15-16, 244, 247, (1889), 33 L.Ed. 555 ing rehearing, petition asked for pan- for prevents possibility post-illegal оf a which rehearing el is DENIED. invoking act transferee the innocent owner defense, prop- because title to a defendant’s

erty at the time the vests

drug crime occurs. Vista, Supreme pur-

In Buena Court post-illegal

posely FELDMAN, did not address James C. act transferees could invoke the innocent v. defense because that case the “re- owner The PHILADELPHIA HOUSING AU- ... the burden of convinc- spondent assumed THORITY; Saidel, Jonathan A. individ- ing the trier of fact that she had knowl- ually and as Chairman of the Board of alleged property].” edge [the source of Philadelphia — Commissioners Vista, at -, Buena 113 S.Ct. at U.S. Authority; Paone, Housing John indi- Hence, post- consideration of whether vidually and as Executive Director of transferees, illegal act who are aware of a Philadelphia Housing Authority; convey taint at the time of property’s Peggy Jones; Clayton Carter, Jr.; thereafter, Nellie not central ance or Courtney did, however, Reynolds; Smith, Jr., analysis. The Court C. indi- Court’s dictum, vidually but then leaned address the issue in as members of the Board majority position It away from the here. Philadelphia Housing Authority. may equitable stated that doctrines foreclose Saidel, in Jonathan A. his individual assertion of the innocent owner defense capacity, Appellant in Nos. 93- by post-illegal guilty transferee “with act 1977 and 93-2129. prop knowledge of the tainted character of a erty.” Id. Paone, Appellant John in No. 93-2115. sum, legislative history given Authority, 881(a)(4)(C)’s Philadelphia Housing Jonathan willful blindness Paone, and Buena s instructional dictum about A. in their offi- Vista Saidel John foreclosing capacities, Appellants the innocent defense in Nos. 93- cial subsequent blind owners and trans- 1978 and 93-2139. ferees, the district court did not err con- 93-1977, 93-1978, 93-2115, Nos. apply pur- cluding that does not Grubb and 93-2139. 93-2129 property. chasers of forfeitable Section 881(a)(4)(C)’s Appeals, United States Court of “knowledge, or willful consent language requires conjunctive Third Circuit. blindness” reading prevent among provi- conflict Argued June 1994. sions, consent to the vehicle’s use because Decided Dec. 1994. drug activity is if one is a irrelevant too, post-illegal act transferee. Then blind Amending Opinion Order ‍​‌​‌​​‌‌‌​​‌​‌‌‌​​​‌​‌​‌‌​‌​‌​‌‌‌​‌​​​‌​‌​‌‌‌‌‌‌‍given finding district court’s of willful 23, 1995. Jan. alone, precluded Goodman was Rehearing Feb. Sur Petition making an owner defense un- provisions. I con- der that subsection’s other subject properly vehicle was

clude so,

forfeited and dissent.

Case Details

Case Name: United States v. One 1973 Rolls Royce, V.I.N. SRH-16266 Ex Rel. Goodman

Court Name: Court of Appeals for the Third Circuit

Date Published: Nov 25, 1994

Citation: 43 F.3d 794

Docket Number: 93-1417

Court Abbreviation: 3rd Cir.