UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

N. JEROME WILLINGHAM, Administrator

of the estate of Nelson T. Hopkins,

deceased,

Claimant-Appellant,

and

ONE TRACT OF REAL PROPERTY WITH

BUILDINGS, APPURTENANCES AND

IMPROVEMENTS, LOCATED IN

JACKSONVILLE, ONSLOW COUNTY, NORTH

No. 97-1191

CAROLINA,AND BEING MORE

PARTICULARLY DESCRIBED IN DEED

RECORDED IN BOOK 282, PAGE 106, of

the Onslow County Registry, being

titled in the names of Nelson T.

Hopkins, James M. Hopkins, Obie

Hopkins, Rasa Lee Hopkins and

Varnell Hopkins Warren, and any and

all proceeds from the sale of said

properties,

Defendant,

OBIE HOPKINS; ALVIN MORRIS; VARNELL

HOPKINS WARREN,

Claimants.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

W. Earl Britt, Senior District Judge.

(CA-94-123-7-BR3)
Argued: March 5, 1998

Decided: April 14, 1998

Before LUTTIG and WILLIAMS, Circuit Judges, and CLARKE,

Senior United States District Judge for the

Eastern District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Dolores Jones Faison, Jacksonville, North Carolina, for

Appellant. Stephen Aubrey West, Assistant United States Attorney,

Raleigh, North Carolina, for Appellee. ON BRIEF: Janice McKenzie

Cole, United States Attorney, Anne M. Hayes, Assistant United States

Attorney, Raleigh, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Jerome Willingham, the administrator of the estate of Nelson Hopkins, appeals the district court's grant of summary judgment for the

government on its civil forfeiture claim brought against certain real

property previously owned, in part, by Hopkins. For the reasons

stated herein, we affirm.

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I.

This controversy began when the United States filed a complaint

for the civil forfeiture of a building ("the Hopkins building") in Jacksonville, North Carolina. This building, which houses a convenience

store and a restaurant on the first floor, and apartments on the upper

floor, was owned by several persons, including Nelson Hopkins.1 The

government filed with its complaint an affidavit ("the Ackley affidavit"), which alleged that the Hopkins building was a major center of

drug-related and other criminal activities in the downtown Jacksonville area.

After an ex parte review of the government's complaint and affidavit, a district court found probable cause and issued a warrant authorizing the government to arrest the property and search the premises,

but not to take physical possession of the property until the owners

were provided with notice of the action and an opportunity to be

heard. In compliance with the warrant, the government searched the

building -- discovering 59 grams of crack cocaine and arresting Hopkins' grandson and another individual in the process, J.A. at 64-66;

served the warrant on the owners of the building; and posted a copy

of the warrant on the property. The warrant apprised the building's

owners that they had a right to a hearing.

Nelson Hopkins responded by requesting such a hearing. The magistrate judge who conducted the hearing understood such a pre-seizure

hearing to be required under Supreme Court precedent, but believed

the scope of that hearing limited to whether probable cause existed to

believe the Hopkins building had been used or intended to be used to

violate the federal drug laws. At the hearing, accordingly, the magistrate allowed Hopkins, through counsel, to cross-examine Special

Agent Ackley, who had sworn out the government's affidavit, and

otherwise to contest probable cause, but did not allow Hopkins to

introduce evidence offered to establish that he did not know of, or

consent to, the unlawful use of his property. The magistrate believed

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1 Because the other owners have ultimately either waived their rights

to contest the government's actions, or been recognized by the government as innocent owners with protected interests, this opinion discusses

only the facts relevant to Hopkins' interest in the property.

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that consideration of this question was unnecessary prior to seizure,

and could be deferred until the forfeiture adjudication. After the hearing, the magistrate found the government had probable cause to seize

the Hopkins building, and directed the marshals to do so.

Subsequently, the government moved for summary judgment on its

foreclosure claim, relying in support of its motion primarily on the

Ackley affidavit. Hopkins' estate2 responded by attorney, and the

government issued a reply. Shortly thereafter, Hopkins' attorney, who

had been disbarred for misconduct apparently unrelated to this case,

was ordered not to make further submissions in the case. Thereupon

Hopkins' presumptive heirs filed notice of their intent to represent

themselves in the action. The heirs explicitly "adopt[ed] all of the

documents and positions filed and offered by [the previous attorney]."

J.A. at 171. The district court then granted summary judgment for the

government, the estate obtained a new lawyer, and this appeal followed.

II.

This case is controlled by binding circuit precedent. As that precedent makes clear,

[i]n a civil forfeiture proceeding the government must show

probable cause that the property is subject to forfeiture.

Once the government has made this showing, the burden

shifts to the claimant to prove by a preponderance of the

evidence that the factual predicates for forfeiture have not

been met. The claimant must prove that the property was not

unlawfully used or that he did not know about or consent to

the illegal use. If the claimant cannot produce any such evidence, summary judgment is properly granted to the government based on its showing of probable cause.

United States v. 7715 Betsy Bruce Lane , 906 F.2d 110, 111 (4th Cir.

1990). Here, as the appellant properly conceded at oral argument, the

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2 Nelson Hopkins died during the course of the proceedings, and was

replaced as a party by Jerome Willingham, the administrator of Hopkins'

estate.

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government has introduced overwhelming evidence of probable

cause. The Ackley affidavit included:

(1) notes from interviews with three drug convicts who had

each (a) sold drugs inside the building, just outside the

building, or both, (b) observed others buying and selling

cocaine inside the building, just outside the building, or

both, (c) stored cocaine or seen others store cocaine inside

the building, and (d) perhaps most importantly, conducted

drug deals or seen drug deals conducted openly in front of

Hopkins;

(2) a review of 202 criminal reports on file with the city

police department relating to incidents inside or immediately outside the Hopkins building over a four-and-a-half

year period, indicating (a) that on 180 instances, the criminal activity was drug related, (b) that drugs were found in

83 instances, (c) that undercover officers or informants purchased drugs in 65 instances, (d) that on 29 occasions the

criminal activity involved Nelson Hopkins and other family

members, and (e) that the activity resulted in 169 arrests;

(3) information that a previous search of the Hopkins building had discovered five grams of cocaine, plastic baggies

containing cocaine residue, and several firearms within an

18 inch vicinity of the cocaine, and that as a result of this

search Hopkins was convicted of manufacture and possession of cocaine under North Carolina law, resulting in a suspended sentence and fine;

(4) reports that four detectives had each (a) observed activity consistent with drug trafficking in the Hopkins building,

(b) observed drugs and drug paraphernalia inside and immediately outside the building, and (3) received information

that Hopkins was involved in the drug trafficking inside the

building;

(5) reports that while the building purported to contain a restaurant, much of the food kept in the building was unfit for

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consumption, possibly suggesting that the restaurant was a

sham; and

(6) miscellaneous other information from various narcotics

investigations and confidential sources indicating that the

center of cocaine distribution in downtown Jacksonville was

located in and around the Hopkins building.

See generally J.A. at 23-32 (affidavit); id. at 182-85 (district court

describing affidavit).

Given that the government had clearly established probable cause,

the burden was on the Hopkins heirs to present evidence from which

a jury could find, by a preponderance of evidence, either that the

property had not been unlawfully used, or that Hopkins had not

known about, or consented to, the illegal use. In attempt to meet this

burden, the Hopkins heirs introduced (1) a statement by Hopkins' former lawyer asserting that Hopkins had always, prior to his death,

maintained his innocence, had not assisted the use of his building for

drug dealing, and had entered an "Alford Plea" in response to the state

drug charge discussed above, J.A. at 161-62; (2) a bare assertion of

innocent ownership made by Hopkins in response to an interrogatory,

J.A. at 163; (3) sworn statements by two of the three drug dealers

cited in the Ackley affidavit substantially undermining their statements to Ackley, J.A. at 165-66; and (4) an unsworn statement from

another individual stating inter alia that Hopkins had a poor memory,

that that individual had never seen Hopkins sell or assist anyone selling drugs, and that Hopkins had not, to that individual's knowledge,

authorized anyone to sell any drugs. J.A. at 167.

As the appellant essentially conceded at oral argument, even if

credited entirely, these submissions do not support even an inference

that the property was not unlawfully used. And, especially given that

the burden of proof is on the defendant-appellant, they are also insufficient to support a jury finding of innocent ownership. The bare

assertions of innocent ownership by the lawyer and Hopkins are not

entitled to any weight at all. And while the statements by the two drug

convicts might be entitled to some weight, even if these statements

are credited in their entirety, the affidavit still contains ample uncontradicted evidence that Hopkins knew of, and perhaps participated in,

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the illegal activities at the building; this uncontradicted evidence is

more than sufficient to prevent a reasonable jury from finding innocent ownership.

III.

Probably realizing the inadequacy of the evidence introduced at the

forfeiture stage of the proceedings in response to the government's

motion for summary judgment, the appellant argues primarily that we

should reverse the district court's grant of summary judgment because

of alleged errors that occurred at earlier stages of the proceedings. In

particular, the appellant argues that under United States v. James

Daniel Good Real Property, 510 U.S. 43 (1993), Hopkins was denied

due process when the magistrate refused to allow him to introduce

evidence of innocent ownership at the probable cause hearing prior to

seizure. See id. at 53-56. Even if erroneous, however, the magistrate's

exclusion of Hopkins' evidence at the pre-seizure proceedings in no

way prevented the Hopkins heirs from introducing the same or similar

evidence in response to the government's motion for summary judgment at the subsequent forfeiture proceedings. For precisely this reason, this court has held that "a Good-violative seizure does not

immunize the property from forfeiture." United States v. Marsh, 105

F.3d 927, 931 (1997). Rather, the remedy for a Good violation is that

"the government must account for the profits or rent which it denied

the claimant during the period of illegal seizure." Id. Here, because

any Good violations that may have occurred at the pre-seizure hearing

would not constitute grounds for reversing the grant of forfeiture, and

because neither Hopkins nor his heirs has made a claim for an

accounting, we need not reach the question of whether Hopkins was

denied due process at his pre-seizure hearing.

CONCLUSION

For the reasons stated herein, we affirm the judgment of the district

court.

AFFIRMED

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