1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-25-1994

United States v. One 1973 Rolls Royce

Precedential or Non-Precedential:

Docket 93-1417

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UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

____________ 

NO. 93-1417 

____________ 

UNITED STATES OF AMERICA, 

 Appellee

v. 

ONE 1973 ROLLS ROYCE, V.I.N. SRH-16266, 

(by and through Claimant Oscar B. Goodman), 

 Appellant

------------------------------------ 

NATIONAL ASSOCIATION OF CRIMINAL 

DEFENSE LAWYERS, 

 Amicus-curiae

____________________________________ 

On Appeal From the United States District Court 

For the Eastern District of Pennsylvania 

(D.C. Civ. No. 90-01487) 

____________________________________ 

Argued: December 6, 1993 

Before: BECKER, NYGAARD, and WEIS, Circuit Judges. 

(Filed: November 25, 1994) 

 MICHAEL R. STILES 

 United States Attorney 

 WALTER S. BATTY, JR. 

 Assistant U.S. Attorney 

 Chief of Appeals 

 JOEL M. FRIEDMAN 

 Assistant U.S. Attorney 

 FRANK A. LABOR, III (ARGUED) 

 Assistant U.S. Attorney 

 615 Chestnut Street 

 Philadelphia, PA 19106 

 Attorneys for Appellee

 United States of America
 

 DAVID CHESNOFF, ESQUIRE (ARGUED) 

 Goodman & Chesnoff 

 520 South Fourth Street 

 Las Vegas, Nevada 89101 

 STEPHEN STEIN, ESQUIRE 

 520 South Fourth Street 

 Las Vegas, Nevada 89101 

 ROBERT E. MURDOCK, ESQUIRE 

 Murdock & Palazzo 

 520 South Fourth Street 

 Las Vegas, Nevada 89101 

 Attorneys for Appellant

 One 1973 Rolls Royce

 VIN SRH-16266

 PETER GOLDBERGER, ESQ. (ARGUED) 

 50 Rittenhouse Place 

 Ardmore, PA 19003-2276 

 Attorney for Amicus-curiae

 National Association of

 Criminal Defense Lawyers

 __________________________ 

 OPINION OF THE COURT

 __________________________ 

BECKER, Circuit Judge. 

 I. INTRODUCTION AND OVERVIEW

 The Comprehensive Drug Abuse Prevention and Control 

Act, 21 U.S.C. § 881 et. seq., provides, among other things, for 

civil forfeiture of illegal drug related property. Section 881 

authorizes the government to seize illegal drugs, containers of 

illegal drugs, records associated with illegal drugs, and other 
property associated with or purchased with proceeds derived from 

the distribution of illegal drugs. Section 881 has become 

attractive to prosecutors because it permits them to seize 

property involved in drug trafficking merely upon a showing of 

probable cause that the property was used to help facilitate a 

drug transaction. 

 Three subsections of § 881 have emerged as far-reaching 

tools of the civil forfeiture scheme. Section 881(a)(4) provides 

for forfeiture of "conveyances" (airplanes, automobiles, boats, 

etc.) used or intended to be used to facilitate the 

transportation, sale, receipt, possession, or concealment of a 

controlled substance. 21 U.S.C. § 881(a)(4). Section 881(a)(6) 

provides for forfeiture of "all proceeds traceable" to a drug 

transaction. 21 U.S.C. § 881(a)(6). And § 881(a)(7) provides 

for forfeiture of "all real property" which is used or intended 

to be used to facilitate an illegal exchange of a controlled 

substance. 21 U.S.C. § 881(a)(7). 

 Congress' decision to add §§ 881(a)(4), (6), and (7) to 

the forfeiture scheme signalled a dramatic expansion of the 

government's forfeiture power. Previously, forfeiture had been 

limited to the illegal substances themselves and the instruments 

by which they were manufactured and distributed. But §§ 

881(a)(4), (6) and (7) gave the government the power to seize 

property that by all appearances was legitimate. This 

development gave rise to the possibility that owners who had 

innocently leased or loaned property to others could lose that 

property in a forfeiture proceeding. For example, a landlord 
might forfeit an apartment complex if a tenant was caught dealing 

drugs from an apartment, or a father who had loaned his son the 

family car might lose it if the son were caught transporting 

drugs therein. 

 To ameliorate this problem, Congress engrafted an 

"innocent owner" defense to forfeiture under §§ 881(a)(4), (6), 

and (7). The "innocent owner" defenses under §§ (a)(6) and (7) 

are the same: no owner's interest in property may be forfeited 

"by reason of any act or omission established by that owner to 

have been committed or omitted without the knowledge or consent 

of that owner." 21 U.S.C. §§ 881(a)(6), (7). Congress later 

added the innocent owner defense of § 881(a)(4), and it has a 

slightly different formulation: no owner's interest in a 

"conveyance" shall be forfeited "by reason of any act or omission 

established by that owner to have been committed or omitted 

without the knowledge, consent, or willful blindness of the 

owner." 21 U.S.C. § 881(a)(4)(C) (emphasis supplied). 

 The overarching issue in this appeal is the extent to 

which the "willful blindness" language found in § 881(a)(4)(C) 

requires us to interpret that innocent owner defense differently 

from the otherwise identical defenses in §§ 881(a)(6) and (7). 

Specifically, we must first determine what constitutes "willful 

blindness" as that term is used in § 881(a)(4)(C). We must then 

decide whether an owner can claim innocent owner status under 

(a)(4)(E) by showing that he or she lacked either knowledge or

consent or willful blindness, which, in turn, requires us to 

determine the extent to which the rule in this Circuit that an 
owner need only show either lack of knowledge or lack of consent 

to make out the innocent owner defense in the context of § 

881(a)(7), see United States v. Parcel of Real Property Known As 

6109 Grubb Road, 886 F.2d 618, 623-626 (3d Cir. 1989), controls 

our interpretation of the defense in the context of § 

881(a)(4)(C). 

 This case arises out of the seizure of a Rolls Royce 

automobile owned by Oscar B. Goodman, a prominent criminal 

defense lawyer who represents clients throughout the country. 

Nicodemo Scarfo, Sr. a former client of Goodman's (and at one 

time the reputed head of the Philadelphia branch of La Cosa 

Nostra ("LCN")), gave Goodman the Rolls Royce in repayment for 

$16,000 that Goodman had paid to the Four Seasons Hotel in 

Philadelphia to cover the cost of a lavish party given by 

Scarfo's son and his friends at the hotel to celebrate Scarfo's 

acquittal at a murder trial in which Goodman was one of the 

defense counsel. 

 In 1989, the FBI seized the vehicle pursuant to § 

881(a)(4). The agency contended that members of the Scarfo 

family had used the Rolls Royce to shuttle people to and from 

meetings conducted as part of the Scarfo LCN family's drug 

distribution activities. Goodman filed a verified claim 

asserting innocent ownership pursuant to § 881(a)(4)(C). Goodman 

alleged that he did not know about, did not consent to, and was 

not willfully blind to the car's use in drug transactions. After 

a bench trial the district court rejected Goodman's innocent 
owner claim and held that the Rolls Royce was subject to 

forfeiture. 

 On appeal, Goodman raises two principal challenges to 

the district court's decision. First, he contends that the 

district court incorrectly held that he had failed to prove that 

he lacked willful blindness. Goodman submits that, by holding 

that Goodman was willfully blind because he failed to exercise 

due care to ascertain whether the car had been used to facilitate 

a drug transaction, the district court improperly read willful 

blindness as a negligence provision. The proper standard, 

Goodman argues, is not an objective "due care" standard but 

rather requires a subjective inquiry, such as "deliberate 

ignorance" or "conscious avoidance." 

 Second, Goodman claims that the district court 

improperly concluded that his failure to prove lack of willful 

blindness, standing alone, defeated his innocent ownership 

defense. According to Goodman, he is entitled to innocent 

ownership protection even if he knew or was willfully blind to 

the fact that the Rolls Royce had been used to facilitate a drug 

transaction so long as he shows that he did not consent to its 

use therefor. He argues that our decision in 6109 Grubb Road, 

886 F.2d at 618, which held that under § 881(a)(7) an innocent 

owner defense would lie if the owner showed either lack of 

knowledge or lack of consent, mandates such a result. He reasons 

that since the innocent owner provision of § 881(a)(7) is 

virtually identical to that in § 881(a)(4)(C), he was entitled to 

show that, notwithstanding his willful blindness, he was an 
innocent owner because he did not consent to the Rolls Royce's 

use in the pre-transfer drug transactions. 

 Goodman's first challenge to the district court's 

decision requires us to articulate the meaning of willful 

blindness under § 881(a)(4)(C). Although it is not clear from 

its opinion, it appears that the district court may have defined 

willful blindness in terms of an objective "due care" standard, 

i.e., the owner's failure to exercise due care to discover 

whether the car was tainted. To the extent that the district 

court applied an objective standard in determining whether 

Goodman was willfully blind, it erred, for we believe that the 

appropriate standard for willful blindness is the traditional 

subjective standard articulated in United States v. Caminos, 770 

F.2d 361, 365 (3d Cir. 1985). Under that standard, a person is 

willfully blind for purposes of § 881(a)(4)(C) when he or she is 

aware of a high probability that the conveyance was used to 

facilitate a drug transaction but fails to take reasonable 

affirmative measures to find out whether the conveyance was in 

fact so used. Thus, for Goodman to escape the willful blindness 

prong of § 881(a)(4)(C), he needs to show either 1) that 

subjectively he did not recognize the high probability that the 

vehicle was connected to a drug transaction, or 2) that he took 

reasonable steps under the circumstances to learn whether the 

vehicle had actually been used to facilitate a drug transaction. 

Because we cannot be sure that the district court applied this 

standard, we will vacate the judgment of forfeiture and remand 

for reconsideration. 
 Goodman's second challenge, relating to consent, raises 

a number of thorny issues. Our conclusion, however, is 

straightforward. We conclude that the rationale of 6109 Grubb 

Road applies perforce to forfeitures under § 881(a)(4)(C), and 

that Goodman will be an innocent owner notwithstanding any 

knowledge or willful blindness he may have had if he did not 

consent to the use of the Rolls Royce in connection with drug 

transactions. Thus, assuming that Goodman can convince the 

factfinder that he did not own the Rolls Royce at the time it was 

used to facilitate a drug transaction, and was not otherwise in a 

position to prevent such a use of the car, he will have shown 

that he did not consent to its use to facilitate drug 

transactions and hence will be entitled to innocent owner status. 

 While our conclusion on this point is simple to state, 

it has far-reaching implications which raise a number of 

troubling issues about 6109 Grubb Road and the wording of the 

innocent owner defense in the forfeiture statutes. The 6109 

Grubb Road approach essentially precludes forfeiture of property 

that is owned by persons who: 1) obtained an interest in the 

property after the illegal use; and 2) lacked knowledge about its 

illegal use at the time the illegal use occurred. Under 6109 

Grubb Road, a post-illegal-act transferee who did not know about 

the act that created the taint at the time it occurred will be an 

innocent owner even if he or she knew about the taint at the time 

he or she received the property. 

 Given this result, the government asks that we decline 

to extend 6109 Grubb Road to forfeitures under § 881(a)(4)(C). 
But the government can point to no principled basis for 

distinguishing § 881(a)(4) from § 881(a)(7) for purposes of 

applying 6109 Grubb Road. Had Scarfo satisfied his debt to 

Goodman by giving him a house instead of a car, the nature of the 

problem would be the same, notwithstanding that the government 

would need to seek forfeiture pursuant to subsection § 881(a)(7) 

instead of § 881(a)(4)(C). Our comparison of the structure and 

language of §§ 881(a)(4) and (7) and analysis of 6109 Grubb Road

lead us to conclude that the 6109 Grubb Road construction of the 

statute applies by analogy to § 881(a)(4)(C). 

 While 6109 Grubb Road (which is binding on us 

absent in banc reconsideration under this court's internal 

operating procedures) has its detractors, see United States v. 

Parcel of Real Property Known as 6109 Grubb Road, 890 F.2d 659 

(3d Cir. 1989) (sur petition for rehearing) (Greenberg, J., 

dissenting), its disjunctive approach ameliorates some of the 

harsh, and quite unfair, results that would occur under the 

alternative to its construction, i.e., a "conjunctive" 

construction requiring the owner show both a lack of knowledge 

and a lack of consent. Specifically, 6109 Grubb Road allows an 

owner to keep his or her property when he or she has not 

consented to the illegal use by taking all reasonable affirmative 

steps to prevent it. To discard the 6109 Grubb Road disjunctive 

construction in favor of a conjunctive one might prevent the 

problem we confront now, but it would create another one. A 

conjunctive construction would deprive innocent owner status to 

owners who know their property is being improperly used but are 
unable to put a stop to it despite having taken all reasonable 

steps to do so -- a result which could raise due process 

concerns. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 

U.S. 663, 688-90, 94 S. Ct. 2080, 2094-95 (1974). 

 Although there is no discussion in 6109 Grubb Road of 

the problem that the disjunctive construction creates when the 

statute is applied to post-illegal-act transferees, its absence 

is not surprising. At the time 6109 Grubb Road was decided, it 

was presumed that a post-illegal-act transferee could never raise 

the innocent owner defense because the relation back provision of 

the civil forfeiture statute, 21 U.S.C. § 881(h), vested title in 

the United States at the time of the illegal act, and thus a 

post-illegal-act transferee could never be an owner. That 

background presumption changed, however, when the Supreme Court 

held in United States v. Parcel of Land, Buildings, Appurtenances 

& Improvements at 92 Buena Vista Avenue, Rumson, N.J., 113 S. Ct. 

1126 (1993), that § 881(h) did not deprive post-illegal-act 

transferees an opportunity to raise the innocent owner defense. 

In a sense, then, 92 Buena Vista Avenue, and not 6109 Grubb Road, 

creates the problem we face today. 

 We believe that, in the wake of 92 Buena Vista Avenue, 

a real ambiguity exists in the statutory language as read by 6109 

Grubb Road. Because the civil forfeiture statute is punitive in 

nature, we rely on the rule of lenity to resolve the ambiguity in 

favor of the claimant. We understand that a countervailing maxim 

requires us to construe the statute to avoid an absurd result. 

But we do not think the result we reach is absurd. As we discuss 
in more detail in the main body of the opinion, language in 92 

Buena Vista Avenue raises considerable doubt as to whether the 

forfeiture statutes are meant to reach post-illegal-act 

transferees who did not know about the act causing the taint 

until after it transpired. 

 As a matter of policy choice, it may be that the 

forfeiture laws should apply differently depending on whether a 

claimant obtained the property before or after the events that 

created the taint, but the statute, as currently drafted, fails 

to account for the differences between the two classes of 

claimants. The remedy for this problem, however, should not be a 

schizophrenic reading of the statutory text, for policy choices 

are not for us to make. Rather, the remedy should be 

Congressional action. Until then we will apply 6109 Grubb Road, 

which, as we apply it today, makes the reasonable choice of 

protecting post-illegal-act owners from the oppressive 

application of the forfeiture laws. 

 

 II. FACTS AND PROCEDURAL HISTORY

 A. The Rolls Royce, and Goodman's Knowledge of Its Use 

 In January 1976, Scarfo purchased the 1973 Rolls Royce 

from Cream Puff Motors in Palm Beach, Florida. The purchase 

price was $25,000, most of which was paid in cash, although part 

was paid with a trade-in of a Lincoln Continental. Scarfo had 

the car registered in Florida to Anthony Gregorio, an associate 

of Scarfo who lived in Fort Lauderdale. 
 Shortly after Scarfo bought the vehicle, it was used on 

two occasions to facilitate drug trafficking. On the first 

occasion, in early 1986, Gregorio drove Scarfo, Phillip Leonetti 

(the "underboss" of the Scarfo LCN family), and some others from 

Scarfo's vacation home to a nightclub in Fort Lauderdale to meet 

with John DiSalvo, a drug dealer from Philadelphia involved in 

trafficking phenyl-2-propanane, a raw material used to 

manufacture methamphetamine. At that meeting, DiSalvo promised 

to pay Scarfo $200,000 in "street taxes" so that he could operate 

his drug business without interference from the Scarfo LCN 

family. On the second occasion, in August 1986, Scarfo called a 

meeting of his LCN family members at either his or Gregorio's 

home in Fort Lauderdale. Francis Ianarella, a "capo" in the 

Scarfo LCN family, came to the meeting. He flew in from 

Philadelphia and Gregorio picked him up at the airport in the 

Rolls Royce and drove him to a hotel. Not only was Ianarella in 

Florida to attend the meeting, but he was also bringing $50,000 

in "street taxes" from drug traffickers in the Philadelphia area. 

The $50,000 was ultimately given to Scarfo. 

 By 1987, the FBI had developed enough evidence against 

the Scarfo LCN organization to crack down on its activities. In 

early 1987, the government initiated a series of prosecutions 

relating to the Scarfo LCN family. Goodman was involved as 

counsel in a number of them. In the first trial, Goodman 

represented former Philadelphia City Councilman Leland Beloff, 

who was accused, along with Scarfo, of engaging in a scheme to 

commit extortion upon a real estate developer. See United States 
v. Scarfo, 850 F.2d 1015 (3d Cir.), cert. denied, 488 U.S. 910 

(1988). During that trial, Goodman cross-examined Thomas 

DelGiorno -- one of the government's key cooperating witnesses -- 

and during that cross-examination, Goodman forced DelGiorno to 

admit that the Scarfo LCN family engaged in drug trafficking. 

The government contends that this cross-examination put Goodman 

on notice that the Scarfo LCN family was engaged in that 

activity. 

 Following the extortion trial, the government attacked 

Scarfo's organization directly, and in 1987 indicted members of 

the organization, including Scarfo, on federal drug charges. 

Goodman represented Leonetti in the ensuing trial. During the 

trial, DelGiorno and Nicholas Caramandi testified for the 

government. DelGiorno testified at length about the Scarfo 

organization's involvement in drugs. Caramandi stated that, 

although the Scarfo LCN family had a rule against trafficking in 

drugs, the rule was routinely broken, and that Scarfo ordered his 

family members to get money from drug dealers any way they could. 

A jury acquitted Scarfo, Leonetti, and a few others of the 

charges. 

 In May 1988, the Commonwealth of Pennsylvania began its 

own prosecution of Scarfo. It ultimately tried Scarfo and 

Leonetti for the murder of Salvatore Testa. Testa, who had been 

the boss of the Philadelphia LCN (Scarfo was his "consigliere" at 

the time), had died when a bomb exploded in his house in early 

1981. Goodman and his fellow defense attorneys won an acquittal 

for both Scarfo and Leonetti. 
 After the jury's unexpected verdict in the Testa murder 

case, the defendants' attorneys, friends, and family met at the 

Four Seasons Hotel in Philadelphia. A wild celebration ensued. 

According to Goodman, "nothing was spared as far as expense." 

For several hours "Cognac that . . . was $800 a bottle [was] 

imbibed by everyone there," and "$100 bottles of champagne were 

being shaken as if it was a World Series victory and splattered 

all over the wall." At the end of the evening, however, no one 

in Scarfo's family had the money to pay the $16,000 bill, and 

when Nicodemo Scarfo, Jr. approached Goodman and asked him to 

pay, Goodman agreed. Shortly after the Four Seasons party, 

Goodman accepted Scarfo Jr.'s offer to repay Goodman with the 

Rolls Royce and $1,500 from each of the three other attorneys 

present at the party. 

 Eventually, the federal government convinced a grand 

jury to indict Scarfo, Leonetti, and others in the Scarfo LCN 

family for RICO violations. In September 1988, a two-month RICO 

trial began. Goodman again represented Leonetti. This time, the 

jury convicted Scarfo, Leonetti, and others of RICO violations 

and underlying drug offenses. During this trial, on October 5, 

1988, Gregorio endorsed the title to the Rolls Royce to Goodman. 

The transfer was never recorded on state motor vehicle records. 

Although it is not clear whether Gregorio delivered the title to 

him, Goodman did exercise some control over the car, for on March 

1, 1989 he paid $4,000 to remove counter-surveillance equipment 

from the vehicle. 
 In September 1989, the FBI seized the Rolls Royce. 

Shortly after the seizure, Goodman came forward claiming that the 

car was his. The government refused to return the car, claiming 

that Goodman was not entitled to the Rolls Royce because it was 

used to facilitate drug trafficking and that Goodman knew or was 

at least willfully blind to that fact when he accepted the car. 

The car is currently impounded in Philadelphia. 

 B. The District Court Opinion 

 Following a bench trial held on February 17, 1993, the 

district court held that Goodman was not entitled to keep the 

Rolls Royce. United States v. One 1973 Rolls Royce, V.I.N. SRH16266, 817 F. Supp. 571 (E.D. Pa. 1993). After concluding that 

the government had met its burden under § 881(a)(4) to show that 

there was probable cause for forfeiture,1 the court rejected 

Goodman's claim that he was an innocent owner. Id. at 576. 

According to the court, Goodman had failed to show that he was 

not willfully blind to the use of the Rolls Royce to facilitate 

drug trafficking. Id. at 576-80.2

 

1. Most of the government's case was based on the testimony of 

FBI Agent Randal Wolverton. He recounted statements made by 

Leonetti, DelGiorno, and Caramandi, who are now all cooperating 

witnesses and have on several occasions testified about the 

illegal activities of members of the Scarfo LCN crime family. 

2. The government had also argued that it had shown probable 

cause that the Rolls Royce had been purchased with proceeds from 

illegal drug transactions, which might suffice to support 

forfeiture pursuant to § 881(a)(6). Because the district court 

decided as it did on the § 881(a)(4) question, it did not reach 

the § 881(a)(6) question. 
 The court recognized that the innocent owner defense of 

§ 881(a)(4)(C) saves from forfeiture a vehicle used to facilitate 

drug trafficking if the owner can establish that the illegal 

activity was committed without the knowledge, consent, or willful 

blindness of the owner. Relying on two cases discussing the 

willful blindness standard in § 881(a)(4)(C), United States v. 

One 1989 Jeep Wagoneer, 976 F.2d 1172, 1175 (8th Cir. 1992), and 

United States v. 1977 Porsche Carrera 911, 748 F. Supp. 1180, 

1186 (W.D. Tex. 1990), aff'd on other grounds, 946 F.2d 30 (5th 

Cir. 1991), the district court formulated the following standard 

for willful blindness: 

 Lack of willful blindness sufficient to 

prevail as an innocent owner under § 

881(a)(4)(C) means that a claimant must show 

that he or she has not ignored a signal or 

suggestion that a vehicle might have been 

used to facilitate the trafficking of illegal 

drugs. Such a suggestion might arise from 

the fact that the vehicle was owned by one 

accused of drug trafficking. As in this 

case, once the claimant chooses to ignore the 

signal, he or she can no longer establish 

lack of willful blindness to the prior use of 

the vehicle that would subject it to 

forfeiture. 

817 F. Supp. at 578. 

 Applying this standard, the district court found that 

Goodman had failed to prove that he was not willfully blind, 

i.e., that knowing what he did about Scarfo, he failed to show 

that he had taken any steps to determine whether the Rolls Royce 

facilitated drug trafficking. According to the court, Goodman's 

representation of Leonetti in the drug trials and his cross-
examination of DelGiorno in the Beloff trial rendered his 

testimony that he did not think the Scarfo LCN family dealt in 

drugs incredible;3 and Goodman's general knowledge of the Scarfo 

LCN family's involvement in drug trafficking was a sufficient 

"signal or suggestion" that the Rolls Royce had been used in 

connection with the trafficking of drugs. Id. at 580.4 Since 

Goodman did nothing to determine whether the Rolls Royce in fact 

had been used to facilitate drug trafficking, the district court 

reasoned, he failed to show that he had not been willfully blind. 

Id.

 The court went on to hold that Goodman's failure to 

prove that he lacked willful blindness alone defeated his 

innocent owner claim. Id. Goodman had claimed that 

notwithstanding his willful blindness, he could still prevail if 

he could show that he did not consent to the Rolls Royce's use in 

the DiSalvo and Ianarella meetings. To support this argument, 

Goodman pointed to 6109 Grubb Road, which had held that proof of 

either lack of knowledge or lack of consent was sufficient to 

make out an innocent owner defense under § 881(a)(7). The court 

 

3. Goodman had testified that as far as he knew, the LCN 

"abhorred" the trafficking of illegal drugs; that "if you accused 

[LCN] members of drugs, the hackles went up"; and that he had 

absolutely no indication the Rolls Royce was ever utilized to 

facilitate illegal drug trafficking. 

4. The court rejected Goodman's argument that the relevant 

question was not whether he was willfully blind to Scarfo's or 

Leonetti's involvement in drugs, but whether he was willfully 

blind to the fact that the Rolls Royce itself was used to 

facilitate drug trafficking. According to the court, such an 

argument would "misconstrue[] the willful blindness standard." 

Id. at 580. 
declined to extend 6109 Grubb Road to § 881(a)(4)(C), however, 

reasoning that the 6109 Grubb Road approach would convert the 

willful blindness language of § 881(a)(4)(C) into surplusage.5 

The district court then entered a final judgment of forfeiture. 

 Goodman filed a timely appeal. Although we may not set 

aside the district court's factual findings unless they are 

clearly erroneous, see Fed. R. Civ. P. 52(a), our review of the 

district court's construction of § 881(a)(4)(C) is plenary. See

United States v. 1500 Lincoln Ave., 949 F.2d 73, 76 n.3 (3d Cir. 

1991). The National Association of Criminal Defense Lawyers has 

filed an amicus brief in support of Goodman's appeal. 

 III. DISCUSSION 

 A. Forfeiture Under § 881(a)(4)

 Section 881(a)(4) provides that "conveyances," 

including automobiles, used to facilitate drug trafficking are 

subject to forfeiture. 21 U.S.C. § 881(a)(4).6 As with all the 

 

5. As the court explained: "If a claimant were able to prevail 

under § 881(a)(4)(C) . . . by showing either lack of knowledge or 

lack of consent or lack of willful blindness, then the words 

`willful blindness' represent nothing more than a useless third 

bite at the apple." 817 F. Supp. at 581. 

6. Section 881(a)(4) provides in pertinent part that the 

following items are subject to forfeiture: 

 All conveyances, including aircraft, vehicles, or 

vessels, which are used, or intended for use, to 

transport, or in any manner to facilitate the 

transportation, sale, receipt, possession, or 

concealment of [controlled substances] . . . 

21 U.S.C. § 881(a)(4). 
forfeiture provisions of § 881, § 881(a)(4) places upon the 

government the initial burden to show probable cause for 

forfeiture. Probable cause exists if facts show reasonable 

grounds to believe that the property was used to facilitate a 

drug transaction. 6109 Grubb Road, 886 F.2d at 621. Once the 

government shows probable cause, the burden shifts to the 

claimant to show that he or she has a defense to the forfeiture. 

The most common defense, and the only one pertinent here, is the 

"innocent owner" defense provided in § 881(a)(4)(C), which states 

that 

 no conveyance shall be forfeited under [§ 

881(a)(4)] to the extent of an interest of an 

owner, by reason of any act or omission 

established by that owner to have been 

committed or omitted without the knowledge, 

consent, or willful blindness of the owner. 

21 U.S.C. § 881(a)(4)(C).7 To make out the defense, the claimant 

must show 1) that he or she is an owner and 2) that he or she did 

not know, or was not willfully blind, or did not consent, to the 

 

7. Enacted as part of the Anti-Drug Abuse Act of 1988, § 

881(a)(4)(C) was in large part a reaction to the excesses of the 

Coast Guard's "zero tolerance" policy. The "zero tolerance" 

policy had resulted in seizures of enormous commercial vessels 

based on the presence of minuscule personal quantities of drugs. 

For example, in one of the worst abuses of the forfeiture 

statutes, the Coast Guard seized the research vessel Atlantis

because it had found one marijuana cigarette in the crew's 

quarters. See Washington Digest (July 25, 1988), at 1-2, 

reprinted in 1 David B. Smith, Prosecution and Defense of 

Forfeiture Cases at ¶ 4.02[4][a] n.10, at 4-10. This prompted 

Representative Gary Studds of Massachusetts to tell the acting 

Customs Commissioner, William von Raab, during a subcommittee 

hearing, "If you can't find something better to do with your 

limited resources than this kind of lunacy, then maybe we've been 

giving you too much money." Id.
improper use of the property. This second component of the 

defense can be somewhat difficult to establish because it forces 

the claimant to prove a negative. 

 There is no serious dispute that the government 

established probable cause that the Rolls Royce had been used to 

facilitate a drug transaction. FBI Agent Randal Wolverton 

testified that Leonetti told him that the car was used to bring 

Scarfo to the meeting with DiSalvo, and that it was used to bring 

Ianarella, who was carrying the "street taxes," to Scarfo. 

Although Agent Wolverton's testimony was merely hearsay, probable 

cause for forfeiture may be established by hearsay evidence, see

6109 Grubb Road, 886 F.2d at 621, and it was adequate to show 

probable cause here. 

 As we have mentioned, the main bone of contention is 

whether Goodman showed that he was an "innocent" owner under § 

881(a)(4)(C).8 We first consider whether the district court 

 

8. While the government questions whether Goodman is truly an 

"owner" of the car, the district court's finding that Goodman 

received title to the Rolls Royce on October 5, 1988 is not 

clearly erroneous. Although the res is located in Pennsylvania, 

Goodman's interest is determined by reference to Florida law, the 

place where his interest arose. See Restatement (Second) of 

Conflicts § 247 ("Interests in chattel are not affected by the 

mere removal of the chattel to another state."). Under Florida 

law, the endorsement of title to him sufficed to demonstrate 

ownership. See Nash Miami Motors, Inc. v. Bandel, 47 So. 2d 701 

(Fla. 1950). Although a lienholder could have an interest 

superior to Goodman's (because the transfer of title was 

unrecorded), see In re Canup Mech., Inc., 1 B.R. 703 (Bankr. M.D. 

Fla. 1979), the only challenge to Goodman's claim of ownership 

comes from the United States, which has no property interest if 

Goodman can sustain the innocent owner defense. See United 

States v. Parcel of Land, Bldgs., Appurtenances & Improvements at 

92 Buena Vista Ave., Rumson, N.J., 113 S. Ct. 1126, 1137 (1993). 
(..continued) 

 The government has made two related arguments 

challenging this conclusion which we shall briefly address. 

First, the government submits that the appropriate law is not 

state law but federal common law, and as a matter of federal 

common law an unregistered title certificate does not create an 

ownership interest. Second, it contends that Goodman must be 

able to show that the Rolls Royce was a "true gift." The case 

law has generally rejected the first argument: state law defines 

ownership interests. See United States v. 1977 Porsche Carrera 

911, 946 F.2d 30, 34 (5th Cir. 1991); United States v. Lot 9, 

Block 2 of Donnybrook Place, 919 F.2d 994, 1000 (5th Cir. 1990); 

United States v. Certain Real Property Located at 2525 LeRoy 

Lane, 910 F.2d 343, 347 (6th Cir. 1990) ("We see no language in 

the civil forfeiture provisions which would mandate the 

application of a federal common law of property. We conclude 

that recognition of state laws governing property rights does not 

contravene the federal forfeiture scheme, and that the 

application of state law is the most appropriate method of 

determining the interest of an owner under 21 U.S.C. § 

881(a)(7)."), cert. denied, 499 U.S. 947, 111 S. Ct. 1414 (1991); 

see also 1500 Lincoln Ave., 949 F.2d at 75 (looking to 

Pennsylvania law to define owner's interest); United States v. 

One Single Family Residence Located at 15621 S.W. 209th Ave., 

Miami, Fla., 894 F.2d 1511, 1514 (11th Cir. 1990) (looking to 

Florida law to determine interest affected by forfeiture law). 

We agree with this case law. 

 The second argument, however, does give us pause. 

Although it is not entirely clear what the government means by 

"true gift," we believe it is contending that Goodman cannot 

claim innocent ownership of the property unless the transfer was 

bona fide in the sense that it was not by design simply a 

transaction to shield Scarfo's assets from forfeiture. This 

appears to be a variant of a proposition we have accepted in a 

similar context -- that nominal or straw owners lack standing to 

challenge a forfeiture proceeding. See United States v. Contents 

of Accounts Nos. 3034504504 & etc., 971 F.2d 974, 985-86 (3d Cir. 

1992) (stating that in the context of the civil forfeiture 

provisions of title 18, 18 U.S.C. § 981, a corporation that had 

legal title to property but which was merely an alter ego and a 

straw owner, lacked standing to challenge the forfeiture), cert. 

denied, 113 S. Ct. 1580 (1993). Accounts No. 3034504504

interpreted standing for purposes of 18 U.S.C. § 981, but relied 

exclusively on cases interpreting the standing requirements under 

the forfeiture statute involved in this case, and is in accord 

with the holdings of those cases. See United States v. Premises 

Known as 526 Liscum Drive, 866 F.2d 213, 217 (6th Cir. 1989) 

(stating that "possession of bare legal title by one who does not 

exercise dominion or control over property may be insufficient to 

establish standing to challenge a forfeiture"); United States v. 
properly concluded that Goodman failed to show that he was not 

(..continued) 

One 1945 Douglas C-54 (DC-4) Aircraft, etc., 604 F.2d 27, 28-29 

(8th Cir. 1979) (holding that owners of the res have standing to 

challenge a forfeiture proceeding, but that bare legal title may 

be insufficient to establish ownership), cert. denied, 454 U.S. 

1143, 102 S. Ct. 1002 (1982). 

 This case law is in considerable tension with the 

precept we have endorsed above that "ownership" is determined by 

reference to state law. Although characterized as a rule of 

standing, the "nominal ownership" rule is in fact a back-door 

method of defining the ownership interest required to claim 

innocent owner status. As a result, the nominal ownership rule 

seems to apply a federal common law gloss to the proposition that 

state law controls the question of ownership. But it is not 

clear to us why there is any need for such a federal common law 

gloss since state law appears to makes adequate provision for 

depriving "nominal" or "straw" owners of full "ownership." State 

fraudulent transaction law, alter-ego, or veil piercing 

doctrines, for example, allow creditors to look past legal 

fictions and interests to reach the property of the "true" owner. 

See, e.g., West's F.S.A. § 726.105(1)(a) (under fraudulent 

conveyance law, "a transfer made or obligation incurred by a 

debtor is fraudulent as to a creditor, whether the creditor's 

claim arose before or after the transfer was made or the 

obligation incurred, if the debtor made the transfer or incurred 

the obligation: (a) with actual intent to hinder, delay, or 

defraud any creditor of the debtor"). 

 We believe that the standing inquiry suggests that the 

question of determining ownership may in fact ultimately be 

governed by federal common law. Nevertheless, it is well 

established that federal common law may incorporate state law as 

the rule of decision. See United States v. Kimbell Foods, Inc., 

440 U.S. 715, 728-30, 99 S. Ct. 1448, 1458-59 (1979); United 

States v. Little Lake Misere Land Co., 412 U.S. 580, 594, 93 S. 

Ct. 2389, 2398 (1973). Thus, our reliance on state law to define 

the ownership interest may be most accurately defined as 

incorporation of state law as part of the federal common law. 

And such incorporation, for all practical purposes, is the same 

as total displacement of federal law by state law. See Boyle v. 

United Technologies Corp., 487 U.S. 500, 507 n.3 (1988) 

(questioning whether there is significance to the distinction 

between the use of state law and the use of federal law which 

incorporates state law). Since the incorporation of state law 

under these circumstances does not "conflict" with the federal 

common law rule that has developed in the standing context, we 

still believe it to be appropriate to apply state law. 
willfully blind to the fact that the Rolls Royce was used to 

facilitate a drug transaction. We then consider whether Goodman 

should be entitled to show on remand that, notwithstanding his 

willful blindness (if any), he is entitled to innocent owner 

status because he did not consent to the drug related uses of the 

vehicle. 

 B. Willful Blindness and § 881(a)(4)(C)

 1. The Standard

 This court has yet to construe the "willful blindness" 

language in § 881(a)(4)(C). We must choose between two possible 

standards: an objective "due care" standard, on the one hand, 

and a subjective "deliberate ignorance" or "conscious avoidance" 

standard on the other. Under the objective standard, willful 

blindness exists when an owner fails to exercise due care to 

ensure that the property will not be and has not been used to 

facilitate a drug transaction. Under the subjective standard, 

willful blindness exists if the owner is aware of a high 

probability that the property will be or has been used to 

facilitate a drug transaction and does not make reasonable 

inquiries to confirm whether it will be or in fact has been so 

used. 

 Unfortunately, the statutory language does not define 

willful blindness, and the legislative history reveals 

considerable confusion over the concept. Representative Shaw, a 

major force behind the enactment of § 881(a)(4)(C), suggested 

that the willful blindness component was meant to impose a duty 
on owners to be "reasonably informed concerning the purpose for 

which another person may use their property." 134 Cong. Rec. 

33,290 (1988) (statement of Rep. Shaw). Thus he apparently 

endorsed the objective "due care" definition of willful 

blindness, a definition he derived from the Supreme Court's 

decision in Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 

663, 94 S. Ct. 2080 (1974). See 134 Cong. Rec. 33, 290 (1988) 

(statement of Rep. Shaw). 

 In Calero-Toledo, the Court stated in dicta that a 

defense to forfeiture might be available to "an owner who proved 

not only that he was uninvolved in and unaware of the wrongful 

activity, but also that he had done all that reasonably could be 

expected to prevent the proscribed use of his property." 416 

U.S. at 689, 94 S. Ct. at 2094-95. At issue in Calero-Toledo, 

however, was the constitutionality of a Puerto Rican forfeiture 

statute, and thus the Calero-Toledo dicta only addressed a 

possible constitutional limit of a forfeiture statute. 

Ironically, then, Representative Shaw used a potential outer 

constitutional limit on the power of a forfeiture statute for the 

meaning of a provision that was intended to cut back on the reach 

of the statute. In other words, if the willful blindness prong 

in § 881(a)(4)(C) is interpreted according to the Calero-Toledo

constitutional text, then the provision is entirely superfluous 

since the Calero-Toledo constitutional limit applies to every 
forfeiture statute, even those without an innocent owner 

provision.9

 Of course Calero-Toledo might still provide the meaning 

of willful blindness in § 881(a)(4)(C) if that is what Congress 

had intended. But we doubt that other legislators shared 

Representative Shaw's belief that the willful blindness language 

be equated with the Calero-Toledo dicta. Most others who made 

statements on the matter apparently had in mind the more 

traditional common law formulation of willful blindness -- a 

subjective "deliberate ignorance" or "conscious avoidance" state 

of mind. See 134 Cong. Rec. 33,288 (1988) ("Willful blindness 

addresses the cases of individuals who have demonstrated a 

conscious purpose to avoid the truth.") (statement of Rep. 

Young); id. at 33,313 ("[The concept of willful blindness] is 

intended to prevent the owner of a conveyance from closing his 

eyes to a violation.") (statement of Rep. Jones); id. at 33,315 

("Willful blindness addresses the case of individuals who have 

demonstrated a conscious purpose to avoid the truth. The concept 

of willful blindness is essentially part of the proof of 

knowledge.") (statement of Rep. Davis). 

 Perhaps because of the confusion in the legislative 

history, a circuit split appears to be developing over the 

 

9. Representative Shaw's confusion over the relationship between 

the statutory requirement of willful blindness and Calero-Toledo

is also evident from other parts of his statement about § 

881(a)(4)(C). For example, he stated that "this section is not 

intended to overturn [Calero-Toledo]." But, since Calero-Toledo

discuses the constitutional limitation on forfeiture statutes, 

Congress could not overturn it. 
definition of willful blindness in the context of civil 

forfeiture. The Eleventh Circuit has held that the appropriate 

standard is the objective due care standard of Calero-Toledo. 

United States v. One 1980 Bertram 58' Motor Yacht, 876 F.2d 884, 

888 (11th Cir. 1989). Bertram endorsed a pure due care standard: 

the owner had to do "everything that a truly innocent owner 

reasonably could be expected to do to insure that his vessel was 

not to be used illegally." Id. at 889.10 The Eighth Circuit, 

however, has held in 1989 Jeep Wagoneer that the appropriate 

standard is the subjective one -- whether one deliberately closed 

his or her eyes to what otherwise would have been obvious -- and 

has expressly rejected the idea that the willful blindness test 

under § 881(a)(4)(C) should be identical to the constitutional 

standard of Calero-Toledo. See 976 F.2d at 1174-75. 

 In our leading case on willful blindness, United States 

v. Caminos, 770 F.2d 361, 365 (3d Cir. 1985), we held that the 

deliberate ignorance requirement is met only if "the defendant 

himself was subjectively aware of the high probability of the 

fact in question, and not merely that a reasonable man would have 

been aware of the probability." Id. at 365. Under this 

definition, willful blindness is a subjective state of mind that 

 

10. In applying the willful blindness standard to the facts 

before it, the Bertram panel held that once an owner of a yacht 

advertised it for sale in Miami and a purchaser came forward with 

a cash deposit, the owner had a duty to ask for identification 

from the purchaser, call local law enforcement officials, and 

inquire about the purchaser's reputation in the community in 

order to maintain his status as an innocent owner. Id. at 888-

89. Because the owner had failed to take such steps, he was held 

not to be an innocent owner. Id.
is deemed to satisfy a scienter requirement of knowledge.11 

 

11. In Caminos, we adopted the deliberate ignorance charge that 

originated in United States v. Jewell, 532 F.2d 697 (9th Cir.), 

cert. denied, 426 U.S. 951, 96 S. Ct. 3173 (1976). In Jewell, 

which involved a defendant who was caught with marijuana in a 

compartment of his car, the Ninth Circuit endorsed the following 

instruction: 

 The Government can complete [its] burden of proof by 

proving, beyond a reasonable doubt, that if the 

defendant was not actually aware that there was 

marijuana in the vehicle . . . his ignorance in that 

regard was solely and entirely a result of his having 

made a conscious purpose to disregard the nature of 

that which was in the vehicle . . . . 

532 F.2d at 700. In dissent, Judge (now Justice) Kennedy pointed 

out that conscious avoidance alone is not sufficient to create a 

mental state equal in culpability to knowledge. According to 

Judge Kennedy, the conscious avoidance must be accompanied by an 

awareness of a high probability that a fact exists for it to be 

culpable. Id. at 707 (Kennedy, J., dissenting). He also argued 

that willful blindness cannot exist where there was an actual 

belief that the relevant fact did not exist. According to Judge 

Kennedy, lack of an instruction to that effect created a risk 

that a defendant would be held to an objective reasonable person 

standard, whereas true ignorance, no matter how unreasonable, 

should constitute a defense to criminal liability based on 

knowledge. Id.

 It appears that the Caminos instruction was closer to 

Judge Kennedy's formulation than the majority's in Jewell. In 

Caminos the instruction stated in part: 

 

 [I]f the evidence shows that [the defendant] positively 

did not know, then, of course, he must be acquitted. 

And if the evidence indicates that he was very stupid 

in the action he took, or ignorant, he cannot be 

convicted. But if the evidence shows that there was a 

high probability that he knew something was amiss and 

that he failed to take steps to investigate, to find 

out whether that was true or not, then you may find 

that he had the guilty knowledge which is required for 

conviction of the offense of importing a controlled 

substance. 

770 F.2d at 366. The one incongruity between this instruction 

and Judge Kennedy's formulation in the Jewell dissent is that the 

Caminos instruction asked whether there was a high probability 
Although courts and commentators have yet to come to a consensus 

on definition of willful blindness,12 the Caminos formulation 

(..continued) 

that the defendant knew something was amiss. Though this might 

have suggested some objective component to the inquiry, the 

Caminos panel read the instruction as requiring a subjective 

awareness of a high probability that something was amiss. Id. at 

365. 

12. Willful blindness has proven to be an elusive concept and 

much disagreement still exists over the appropriate definition of 

the term. See Jewell, 532 F.2d at 706 (Kennedy, J., dissenting) 

("There is disagreement as to whether reckless disregard for the 

existence of a fact constitutes wilful blindness or some lesser 

degree of culpability. . . . There is also the question of 

whether to use an `objective' test based on the reasonable man, 

or to consider the defendant's subjective belief as dispositive." 

(footnotes omitted)). 

 Some believe willful blindness is simply a surrogate 

for knowledge. See Rollin M. Perkins, Criminal Law 776 (2d ed. 

1969) ("One with a deliberate antisocial purpose in mind . . . 

may deliberately `shut his eyes' to avoid knowing what would 

otherwise be obvious to view. In such cases, so far as the 

criminal law is concerned, the person acts at his peril in this 

regard, and is treated as having `knowledge' of the facts as they 

are ultimately discovered to be."); Glanville Williams, Criminal 

Law, The General Part § 57, at 159 (2d ed. 1961) ("To the 

requirement of actual knowledge there is one strictly limited 

exception. . . . [T]he rule is that if a party has his suspicion 

aroused but then deliberately omits to make further enquiries, 

because he wishes to remain in ignorance, he is deemed to have 

knowledge. The rule that willful blindness is equivalent to 

knowledge is essential and is found throughout the criminal 

law."); Edwards, The Criminal Degrees of Knowledge, 17 Mod. L. 

Rev. 294, 298 (1954) ("For well nigh a hundred years, it has been 

clear from the authorities that a person who deliberately shuts 

his eyes to an obvious means of knowledge has sufficient mens rea 

for an offense based on such words as . . . `knowingly.'"). 

Others equate it with a less culpable state of mind. See Robin 

Charlow, Wilful Ignorance, 70 Tex. L. Rev. 1351, 1429 (1992) 

("Although wilful ignorance is usually employed to satisfy a 

statutory mens rea of knowledge, the most prevalent definitions 

of the doctrine describe a state of mind that is . . . not as 

culpable as knowledge."); Ira P. Robbins, The Ostrich 

Instruction: Deliberate Ignorance as a Crim. Mens Rea, 81 Crim. 

L. & Criminology 191, 195 (1990) ("Deliberate ignorance 

constitutes recklessness, rather than knowledge."). 
basically adopts the mainstream conception of willful blindness 

as a state of mind of much greater culpability than simple 

negligence or recklessness, and more akin to knowledge. See

supra n.12. See also United States v. Rivera, 944 F.2d 1563, 

1570 (11th Cir. 1991) (willful blindness equated with the concept 

of "deliberate ignorance" and treated a state of mind equally 

culpable as actual knowledge); United States v. Rothrock, 806 

F.2d 318, 323 (1st Cir. 1986) ("The purpose of the willful 

blindness theory is to impose criminal liability on people who, 

recognizing the likelihood of wrongdoing, nonetheless consciously 

refuse to take basic investigatory steps."). Thus in the absence 

of a clear statement in either the statute or the legislative 

history, we adopt the Caminos definition of willful blindness for 

§ 881(a)(4)(C).13

 

13. The Caminos "deliberate ignorance" conception is careful to 

distance willful blindness from a due care or negligence 

standard. Indeed, any willful blindness instruction must be 

designed to reduce the risk that willful blindness will be found 

where there was simply a lack of due care or even where there was 

recklessness. Accord United States v. Cassiere, 4 F.3d 1006, 

1023 (1st Cir. 1993) ("Caution is necessary in giving a willful 

blindness instruction `because of the possibility that the jury 

will be led to employ a negligence standard and convict a 

defendant [on the ground] that he should have known [an illegal 

act] was taking place.'" (quoting United States v. Littlefield, 

840 F.2d 143, 148 n.3 (1st Cir. 1988))). 

 This threat has led some, including the drafters of the 

Model Penal Code, to conclude that the concept of willful 

blindness should simply be folded into the definition of 

knowledge. See Model Penal Code § 2.02(7); see also Note, Model 

Penal Code Section 2.02(7) and Willful Blindness, 102 Yale L. J. 

2231 (1993) (arguing that willful blindness should be eliminated 

and replaced with the broader definition of knowledge found in 

the Model Penal Code). Under the Model Penal Code § 2.02(7), 

when knowledge of a fact is an element of an offense, it is 

established "if a person is aware of a high probability of its 

existence, unless he actually believes that it does not exist." 
 This construction is consistent with the general 

agreement manifest in the legislative history that the § 

881(a)(4)(C) innocent owner defense should be the same as those 

of §§ 881(a)(6) and (7). Representative Shaw, for instance, 

stated that the defense under § 881(a)(4)(C) was "virtually 

identical" to the defense for innocent owners under §§ 881(a)(6) 

and (7). 134 Cong. Rec. 33,290 (1988). Others expressed the 

same sentiments. See 134 Cong. Rec. 33,288 (1988) ("The concept 

of willful blindness is essentially part of the proof of lack of 

knowledge. For this reason, the defense for innocent owners of 

conveyances seized for drug related offenses is virtually 

identical to the existing defenses for innocent owners of real 

property . . . or other things of value under paragraphs (6) and 

(7) of section 511(a) of the Controlled Substances Act (21 U.S.C. 

811(a)(6) and (7)).") (statement of Rep. Young); ("[T]he defense 

for innocent owners of conveyances seized for drug-related 

offense[s] is virtually identical to the existing defenses for 

innocent owners of real property, and money . . . .") (statement 

of Rep. Young); see also 1 David Smith, Prosecution and Defense 

of Forfeiture Cases ¶ 4.02[4][a], at 4-10 (1993) ("[Section 

(..continued) 

The Model Penal Code provision "requires an awareness of a high 

probability that a fact exists, not merely a reckless disregard, 

or a suspicion followed by a failure to make further inquiry. It 

also establishes knowledge as a matter of subjective belief, an 

important safeguard against diluting the guilty state of mind 

required for conviction." Jewell, 532 F.2d at 707 (Kennedy, J., 

dissenting). This, as noted, is consistent with Cominos. The 

Supreme Court has explicitly endorsed the Model Penal Code 

formulation for knowledge. See Turner v. United States, 396 U.S. 

398, 416, 90 S. Ct. 642, 652 (1970); Leary v. United States, 395 

U.S. 6, 46 n.93, 89 S. Ct. 1532, 1553 n.93 (1969). 
881(a)(4)(C)] should be interpreted in pari materia with the 

identical innocent owner provisions in sections 881(a)(6) and 

(a)(7)."). 

 Our construction is further supported by the fact that, 

despite the textual absence of willful blindness terminology, 

both § 881(a)(6) and § 881(a)(7) have been interpreted by many 

courts to require owners to demonstrate not only a lack of actual 

knowledge, but also a lack of willful blindness.14 Because the 

only way willful blindness can become part of the innocent owner 

defense in those sections is if the "knowledge" component is read 

to incorporate willful blindness, courts have tended to adopt the 

"deliberate ignorance" formulation of willful blindness in §§ 

881(a)(6) and (7). See, e.g., 1980 Red Ferrari, 827 F.2d at 480 

(stating that the claimant could have avoided knowledge that the 

 

14. See United States v. 1980 Red Ferrari, 827 F.2d 477 (9th 

Cir. 1987); United States v. One Parcel of Property at 755 

Forest Road, 985 F.2d 70, 72 (2d Cir. 1993); United States v. 

$4,255,000, 762 F.2d 895, 906 (11th Cir. 1985) (upholding § 

881(a)(6) forfeiture where the owner "indicated a tacit 

acknowledgement of his disquieting belief that these large cash 

deposits were coming to [a depositor] by way of Colombian 

couriers carrying narcotic-generated cash" and "[the owner] had a 

`gnawing belief that the funds being dealt with were tainted'"), 

cert. denied, 474 U.S. 1056, 106 S. Ct. 795 (1986); 1977 Porsche 

Carrera 911, 748 F. Supp. at 1186 ("The `willful blindness' 

language of subsection (4)(C) is absent from subsection (6), but 

the legislative history behind the differing language may suggest 

that Congress intended that a claimant prove the absence of all 

three circumstances --- knowledge, consent, and willful blindness 

-- to prevail under any of the subsections of section 881 to 

which the innocent owner exception applies."). But see United 

States v. One Single Family Residence Located at 6960 MiraFlores 

Ave., 995 F.2d 1558, 1564 (11th Cir. 1993) (finding irrelevant 

under § 881(a)(7) whether the owner "deliberately closed his eyes 

to what he had every reason to believe was the truth"). 
Ferrari was involved in drug trafficking only by "sticking his 

head in the sand" (internal quotation omitted)). Thus, 

interpreting § 881(a)(4)(C) to require the owner to show a lack 

of deliberate ignorance ensures that its innocent owner defense 

is the same as that required under §§ 881(a)(6) and (7).15

 2. Application of the Standard

 Turning now to the facts before us, under the standard 

we adopt today, willful blindness could not be found if it were 

positively established that Goodman did not know that the Rolls 

Royce was used for drug trafficking. Similarly, if Goodman were 

just lacking in intelligence, negligent, or mistaken, he should 

not be found to have been willfully blind. But if Goodman fails 

to show that he did not know there was a high probability that 

the vehicle had been used to traffic drugs, and then fails to 

show that he took affirmative steps to investigate whether the 

car had in fact been used to facilitate drug trafficking, he will 

not have satisfied his burden to show that he was not willfully 

blind. 

 

15. This conclusion is also consistent with the view of a 

leading commentator. See 1 Smith at ¶ 4.03[c][ii], at 4-90.1-

90.2 ("Deliberate avoidance of knowledge by sticking one's head 

in the sand will be equated with actual knowledge, as in criminal 

cases. This is so regardless of the fact that sections 881(a)(6) 

and (a)(7) do not contain an explicit `willful blindness' 

exception to the defense for innocent owners, unlike section 

881(a)(4). However, failure to exercise due care does not 

preclude reliance on the innocent owner defense."); id. at ¶ 

4.03[c][ii], at 4-90.2 n.82 (describing cases that equate willful 

blindness with a lack of due care as "clearly wrong" and stating 

that willful blindness should not be equated with negligence). 
 Unfortunately, we cannot determine whether the district 

court used the appropriate standard when it held that Goodman 

failed to show that he was not willfully blind. The district 

court formulated the willful blindness standard as "ignor[ing] a 

signal or suggestion that a vehicle might have been used to 

facilitate the trafficking of illegal drugs" and explained that 

"once the claimant chooses to ignore the signal, he or she can no 

longer establish lack to willful blindness to the prior use of 

the vehicle . . . ." Amicus argues that this language is an 

objective "due care" formulation. The government disagrees. We 

are inclined to agree with amicus, though we cannot tell for 

sure. Although the district court supported its conclusion by 

citing 1989 Jeep Wagoneer, 976 F.2d at 1175, which endorsed a 

subjective standard, it then cited language from 1977 Porsche 

Carrera 911, 748 F. Supp. at 1186, which seems to endorse an 

objective one. Moreover, the standard announced by the district 

court focuses on the owner rather than the car (it stated "[s]uch 

a suggestion might arise from the fact that the vehicle was owned 

by one accused of drug trafficking,"), but it does so 

erroneously, see infra at 35. We therefore will vacate the 

judgment of forfeiture and remand for reconsideration under the 

standard we articulate today. We take this opportunity to 

provide some guidance to the district court in considering this 

issue on remand. 

 It appears from the record before us that it is 

virtually undisputed that Goodman took no steps to investigate 

whether the Rolls Royce had been used to facilitate drug 
trafficking at the time he acquired it. The principal issue on 

remand, therefore, reduces to the following factual inquiry: 

whether Goodman had actual knowledge of a high probability that 

the Rolls Royce was used in drug trafficking. 

 Although the standard we announce requires proof of 

actual knowledge of the high probability, such knowledge is 

commonly proven by inference from circumstantial evidence. Thus, 

for example, if it is proven that Goodman knew that Scarfo's only

income was through drug trafficking, and the court finds that 

such facts are sufficient to support a conclusion that there was 

a high probability that the Rolls Royce had been used to 

facilitate drug trafficking, the district court could reasonably 

infer that Goodman actually knew about the high probability. The 

court may also reject testimony to the contrary that it finds is 

incredible, such as Goodman's claim that he did not know about 

the high probability that the car facilitated a drug transaction 

because Scarfo and the LCN had a rule against drug dealing. 

 One question that has arisen on this appeal is whether 

the "high probability" prong of the willful blindness test 

requires knowledge of a high probability that the vehicle itself 

was used to facilitate drug transactions, or whether it refers to 

knowledge of a high probability that the former owner of the 

vehicle was accused of drug trafficking. So stated, the answer 

is simple. Because this forfeiture action focuses on the taint 

of the res itself, the relevant question is whether Goodman knew 

of the high probability that the Rolls Royce itself was used to 

traffic drugs. The more difficult question, however, is whether 
knowledge that the previous owner had been accused of drug 

trafficking is sufficient, standing alone, to support an 

inference that the transferee was aware of a high probability 

that the car itself was used to facilitate drug trafficking. We 

do not think so. 

 Standing alone, an accusation of drug trafficking, even 

if in the form of an indictment, does not create a sufficiently 

high probability that property of the accused was used to 

facilitate drug trafficking. In our view, it is unreasonable to 

conclude that a claimant's knowledge of such an accusation, 

without more, supports the inference that the claimant was aware 

of a high probability that all of the property of the accused is 

tainted. The accused may have sources of income from legitimate 

businesses, and, in the context of this case, even if Goodman 

believed that Scarfo had no legitimate sources of income, he may 

have believed that his income came from illegal activities that 

had little or nothing to do with drug trafficking, or that Scarfo 

might have owned other cars other than the Rolls Royce that he 

used in drug trafficking.16 We doubt that the civil forfeiture 

provisions, which are aimed at combating drug trafficking, are 

meant to allow forfeiture of property used in or bought from nondrug related illegal activity. 

 

16. For example, Scarfo may have received a good deal of his 

income from loan-sharking, extortion, or illegal gambling 

operations. Thus Goodman may have thought that the probability 

was quite low that the Rolls Royce was purchased with proceeds 

from the drug trafficking of which Scarfo was accused or that 

Scarfo had used the Rolls Royce in drug transactions. 
 We do not mean to suggest that Goodman has shown that 

he was not willfully blind. We state only that his knowledge 

that Scarfo had been indicted for drug dealing did not, by 

itself, necessarily invest Goodman with knowledge of a high 

probability that the car was tainted. However, there appears to 

be some evidence that Goodman knew more about the Rolls Royce's 

particular involvement in illegal activity than simply that its 

owner had been accused of drug trafficking. Specifically, 

shortly after he received ownership of the Rolls Royce, Goodman 

spent $4,000 removing counter-surveillance equipment from it. In 

any event, we leave the question to the district court on 

remand.17

 

17. Another vexing aspect of the problem bears mention. Goodman 

was not just any old acquirer of the Rolls Royce -- he was a 

lawyer. And although the Rolls Royce was not transferred to him 

as a fee for legal services, but as repayment of a debt, we can 

scarcely write on so important and sensitive a subject without 

recognizing that the car could very easily have been a fee. We 

therefore believe that we should at least touch upon the question 

whether our decision on this question creates an unwarranted 

strain on the attorney/client relationship. 

 It might be argued that the rule we fashion today, when 

applied in the context of an attorney's fee, creates an incentive 

on the part of the attorney to avoid investigating the client's 

case for fear that he or she might discover something that would 

negate an innocent owner defense and subject the fee to 

forfeiture. Obviously a rule that creates such an incentive 

potentially compromises an accused's Sixth Amendment right to 

have a lawyer who thoroughly investigates his or her case. 

 But such an argument assumes that an attorney would 

lose the benefit of the innocent owner defense in a forfeiture 

proceeding against a fee if he or she discovered the taint after

receiving the fee. We do not think such an assumption to be 

sound. Although at least one case suggests that a fee might be 

subject to forfeiture even when discovery of the taint occurs 

after the transfer, see 1977 Porsche Carrera 911, 748 F. Supp. at 

1188 (stating that even when a lawyer who is unaware of the taint 

at the precise moment of acquisition, it is forfeitable if he or 

she learns of the taint soon afterwards), 92 Buena Vista Avenue
 In sum, we hold that, to avoid the "willful blindness" 

prong of the innocent owner defense in § 881(a)(4)(C), Goodman 

must demonstrate that he was not subjectively aware of a high 

probability that the Rolls Royce either was or was going to be 

used to facilitate an illegal drug transaction, or, if he was, 

that he took reasonable affirmative steps under the circumstances 

to determine whether in fact the vehicle was going to be or had 

been so used. We also conclude that in applying this standard, 

(..continued) 

suggests the contrary. See 113 S. Ct. at 1145 (Kennedy, J., 

dissenting) ("another oddity now given to us by the plurality 

decision is that a gratuitous transferee must forfeit the 

proceeds of a drug deal if she knew of the drug deal before she 

received the proceeds, but not if she discovered it a moment 

after.") (emphasis supplied). And, as we discuss in the next 

subsection, fees may not be subject to forfeiture even if the 

attorney had known of the taint at the time the fee was received, 

as long as he or she did not know about the act creating the 

taint at the time it was committed. If an attorney would not 

lose the fee when he or she only discovers the taint after

receiving the property, then the rule we fashion would create no 

disincentive for an attorney to investigate a client's case. It 

would merely create an incentive for an attorney to require 

payment of the fee (or retainer) up-front. 

 On the other hand, if an indictment or other serious 

accusation is enough, by itself, to create knowledge of a high 

probability of the taint that would trigger a duty to investigate 

the source of a fee, attorneys would be reluctant to take on any 

clients accused of drug trafficking. Generally speaking, should 

an innocent ownership claim be defeatable simply because the 

property was owned by one accused of drug trafficking, a lawyer 

would hesitate to ever accept a fee in a drug case, a money 

laundering case, a structuring case, see 18 U.S.C. § 981(a)(2), 

or a RICO case, see 18 U.S.C. § 1963(c). There is, of course, no 

Sixth Amendment right to the attorney of one's choosing, see

Caplin & Drysdale v. United States, 491 U.S. 617, 624-25, 109 S. 

Ct. 2646, 2652 (1989), but we do doubt that the statute was meant 

to induce such a result. At all events, this difficult and 

vexatious problem needs much further consideration. 
the mere fact that Goodman was aware that Scarfo had been accused 

of drug trafficking does not, by itself, show that Goodman was 

aware of a high probability that the property was tainted. We 

now consider whether Goodman should also be entitled to innocent 

owner defense if he shows that he did not consent to the Rolls 

Royce's improper use. 

 C. Is Lack of Consent An Independent

 Defense Under § 881(a)(4)? 

 1. Analysis

 Should the district court conclude on remand that 

Goodman was willfully blind, the question will arise whether such 

a conclusion will defeat his claim of innocent owner status. As 

has been mentioned, the district court believed that it did, and 

rejected Goodman's argument that, under 6109 Grubb Road, he 

should still be entitled to innocent owner protection if he could 

show that he did not consent to the use of the Rolls Royce to 

facilitate a drug transaction. See 817 F. Supp. at 580. As we 

have also noted above, 6109 Grubb Road held that, in the context 

of a § 881(a)(7) forfeiture, an owner who had knowledge of the 

taint will still be considered an innocent owner upon a showing 

that he or she did not consent to the use which caused the taint. 

The district court refused to apply 6109 Grubb Road, stating that 

the case did not govern § 881(a)(4)(C) forfeitures. 

 In 6109 Grubb Road, the claimant admitted knowing that 

her property had been used for drug dealing. She argued, 

however, that notwithstanding such knowledge, she should still be 
entitled to innocent owner status because she could show that she 

did not consent to its use therefor. Relying principally on the 

canon of construction that words separated by an "or" must be 

given independent meaning, the panel agreed, concluding that the 

lack of either knowledge or consent established innocent owner 

status. 886 F.2d at 626. 

 We believe that the 6109 Grubb Road analysis is 

applicable to § 881(a)(4)(C) for two reasons. First, for all 

practical purposes, although the willful blindness language 

appears only in § 881(a)(4), the tests for innocent ownership 

under all three provisions are virtually identical, and hence the 

construction should be consistent. See supra at 31. Since the 

choice between reading the conditions for innocent owner status 

in the disjunctive or conjunctive will have a dramatic effect on 

the nature of the defenses, the construction should remain 

consistent across all three subsections in order to keep the 

defenses "virtually identical," see supra at 31. 

 Second, and more importantly, the central logic of the 

6109 Grubb Road decision mandates the same result in the context 

of § 881(a)(4). As has been mentioned, the 6109 Grubb Road panel 

ultimately based its decision on the language and structure of 

the statute, in particular, the use of the traditionally 

disjunctive word "or." 886 F.2d at 626 ("The use of or in the 

statute (knowledge or consent) means that each word must be given 

its independent and ordinary meaning. . . . Reading `knowledge 

or consent' as the canons of construction require, we conclude 

that [the claimant] can show innocent ownership by proving by a 
preponderance of the evidence that the illegal use of the 

property occurred either without her knowledge or without her 

consent."). Although § 881(a)(4)(C) adds the willful blindness 

notion, the language and structure of the provision is identical 

to that of § 881(a)(7), including the use of the traditional 

disjunctive "or." The government asks us to overlook the obvious 

similarities between §§ 881(a)(4)(C) and (7) for purposes of 

applying 6109 Grubb Road, contending that, to transpose 6109 

Grubb Road to § 881(a)(4)(C) would lead to the absurd result that 

every owner could establish the innocent owner defense. 

 The government's argument goes as follows. First, the 

government recognizes that if 6109 Grubb Road is extended to § 

881(a)(4)(C), an owner can prevail on the innocent owner defense 

by showing either a lack of willful blindness or a lack of 

knowledge. Second, the government assumes that willful blindness 

and knowledge are mutually exclusive. In other words, the 

government maintains that if the court finds that the owner knew

that the conveyance was used to facilitate drug transactions, it 

must logically conclude that the owner was not willfully blind 

thereto; concomitantly, the government contends that if the court 

finds that the owner was willfully blind to the conveyance having 

been used to facilitate drug transactions, it must necessarily 

conclude that the owner lacked knowledge thereof. Accordingly, 

the government maintains, an owner can always show that he or she 

either lacked knowledge or was not willfully blind, causing the 

6109 Grubb Road construction to create the absurd situation in 

which an owner could successfully make out the innocent owner 
defense simply by failing to satisfy one of the conditions for 

innocent owner status. Under this analysis, it argues, 6109 

Grubb Road cannot apply. 

 But in the world of logic, a syllogism is valid only if 

its premises are sound, and it appears to us that one of the 

government's premises is false. As our discussion of willful 

blindness in the previous section demonstrates, willful blindness 

and knowledge are not mutually exclusive states of mind. Willful 

blindness, as it is used in § 881(a)(4)(C), and as it has been 

used traditionally, is an alternative way of proving knowledge. 

In terms, "knowledge" comprises both actual knowledge -- a 

subjective belief that something is true -- and willful blindness 

-- a subjective belief that it is highly probably that something 

is true. In other words, willful blindness is a subset of 

knowledge. For this reason, proof of willful blindness has been 

sufficient to prove knowledge in the context of §§ 881(a)(6) and 

(7). Since such proof establishes knowledge in the context of 

those sections, it also be suffices to establish knowledge in the 

context of § 881(a)(4)(C), for we see no reason to construe the 

term "knowledge" in § 881(a)(4)(C) differently from §§ 881(a)(6) 

and (7). It follows, then, that an owner's failure to prove a 

lack of willful blindness simultaneously amounts to a failure to 

prove lack of knowledge for purposes of the statute. As a 

result, the illogical result the government fears if we apply 

6109 Grubb Road to § 881(a)(4)(C) is illusory. 

 The fact that § 881(a)(7) has been interpreted to 

deprive a claimant of innocent owner status where the owner was 
willfully blind is important for another reason. If the 

government is correct that willful blindness and actual knowledge 

are mutually exclusive mental states, then the "illogical" result 

would also exist in the context of § 881(a)(7). In other words, 

the government's assumption that willful blindness and knowledge 

are mutually exclusive is at odds with the well settled case law 

holding that willful blindness is sufficient to deprive a 

claimant of the innocent owner defense of § 881(a)(7). In short, 

the government's argument is really a veiled criticism of 6109 

Grubb Road, not just of its application to § 881(a)(4)(C), and 

does not provide a basis for distinguishing § 881(a)(7) from § 

881(a)(4)(C). 

 We can find no reason why the rationale of 6109 Grubb 

Road should not apply with equal force to forfeitures under § 

881(a)(4)(C). The legislative history clearly tells us that the 

defenses under § 881(a)(7) and § 881(a)(4)(C) are the same; the 

structure of the language in § 881(a)(4)(C) is identical to that 

in § 881(a)(7), so the same canons of construction that were 

controlling 6109 Grubb Road lead to an identical result here. 

Section 881(a)(4)(C) does not embody any policy distinct from § 

881(a)(7) which would otherwise prevent the application of 6109 

Grubb Road to the construction of its language. We therefore 

conclude that the innocent owner defense of § 881(a)(4)(C) is 

available to any owner who can prove any one of either a lack of 

knowledge, lack of consent, or lack of willful blindness. 

Accordingly Goodman should be entitled to innocent owner status 
if he did not consent to the use of the Rolls Royce in 

facilitating drug trafficking. 

 2. The 6109 Grubb Road Problem

 A straightforward application of 6109 Grubb Road to the 

facts of this case suggests that on remand, Goodman could show 

that he did not consent to the improper use of the Rolls Royce by 

proving that he did not own the car at the time that it was used 

to facilitate drug transactions, that he was not in a position to 

prevent such a use of the car, and that he did not know that the 

car was being used for such a purpose at the time it was so used 

or, if he knew, that he took all reasonable steps to prevent such 

use. If Goodman did not know that the Rolls Royce was going to 

be used in the DiSalvo or Ianarella meetings, he simply could not 

have consented to such a use. As a result, even if Goodman 

actually knew about or was willfully blind to the car's past 

improper use at the time he obtained ownership of it, he could 

not have consented to such improper use, and hence would be an 

innocent owner. Because we do not see how a person can consent 

to a particular use of property if he or she did not know that 

the property would be so used at or before the time of the use, 

the 6109 Grubb Road approach means that a subsequent owner who 

did not know about the act creating the taint on the property at 

or before it was committed would always be an innocent owner 

under the statute -- even if he or she knew about the act 

creating the taint at the time he or she received the property. 
 The result we reach by applying 6109 Grubb Road raises 

the question whether that case was properly decided as an 

original matter. We, of course, cannot avoid the holding of that 

opinion, see Third Circuit Internal Operating Procedures 9.1, but 

the result 6109 Grubb Road created here seems at first blush 

sufficiently counterintuitive that the case needs more 

explaining. As we describe below, although the rationale given 

in 6109 Grubb Road is not free from doubt, the result is quite 

sensible as a matter of policy. Indeed, as we also detail below, 

the puzzling result cannot be laid at the feet of the 6109 Grubb 

Road panel. Rather, in our view, the cause is the nearly 

impenetrable language of the statute and an intervening Supreme 

Court decision, 92 Buena Vista, the importance of which the 6109 

Grubb Road panel would not have anticipated. 

 We begin by noting that the rationale provided in 6109 

Grubb Road is vulnerable.18 The argument that the existence of 

the word "or" between the words knowledge and consent requires a 

disjunctive reading of the conditions that an owner needs to 

establish to show innocent owner status, arguably overlooked the 

importance of context in determining whether the conditions 

should be treated as disjunctive or conjunctive. Whether 

requirements in a statute are to be treated as disjunctive or 

conjunctive does not always turn on whether the word "or" is 

 

18. At the time it was decided, three judges on this court 

believed that the decision was incorrect. See United States v. 

Parcel of Real Property Known As 6109 Grubb Road, 890 F.2d 659 

(3d Cir. 1989) (sur petition for rehearing) (Greenberg, J., 

dissenting). 
used; rather it turns on context. For example, if a statute 

provides that "no cars or motorcycles are allowed in the park," a 

person trying to keep a vehicle out of the park need only show 

that the vehicle is either a car or a motorcycle. From that 

perspective the statute is disjunctive. On the other hand, a 

person trying to bring a vehicle into the park must show both 

that it is not a car and that it is not a motorcycle. From that 

perspective, the statute is conjunctive. Depending on the 

relevant context, a disjunctive test can always be reformulated 

as a conjunctive one.19 

 To be fair to the 6109 Grubb Road panel, part of the 

problem in both 6109 Grubb Road and in this case stems from the 

language of the statute itself. Filled with negatives, its 

language is nearly impenetrable. The difficulty with the 6109 

Grubb Road linguistic interpretation is demonstrated by removing 

two of the negatives (which should not change the meaning of the 

 

19. A principle used in symbolic logic called DeMorgan's Theorem 

illustrates how language phrased in the disjunctive can be 

rephrased in the conjunctive. Under DeMorgan's Theorem the 

denial of the alternation [not A or B] is equivalent to the 

conjunction of the denials [not A and not B]. See Lalit K. 

Loomba, The Innocent Owner Defense to Real Property Forfeiture 

Under the Comprehensive Crime Control Act of 1984, 58 Fordham L. 

Rev. 473, 481 n.68 (1989); see also United States v. Certain Real 

Property & Premises Known as 890 Noyac Road, 739 F. Supp. 111, 

113-15 (E.D.N.Y. 1990) (specifically referring to DeMorgan's 

Theorem in construing § 881(a)(7)), rev'd, 945 F.2d 1252 (2d Cir. 

1991). Section 881(a)(7) requires an owner to establish that the 

drug trafficking was committed "without his knowledge or 

consent." Showing that something was without knowledge or 

consent is a denial of the alternation; thus according to 

DeMorgan's Theorem, the owner must show the conjunction of the 

denial, that is, that there was no knowledge and no consent. 
statute) and the burden of proof language (which merely indicates 

who has to satisfy the requirements of the statute without 

indicating what the party with the burden must show): 

 [] property shall be forfeited under [§ 881(a)(7)] to 

the extent of an interest of an owner, by reason of any 

act or omission . . . committed or omitted with[] the 

knowledge or consent of the owner. 

Parsed with the negatives and the burden of proof language 

excised, the statute provides that an act or omission committed 

under any one of the two conditions will preclude an innocent 

owner defense. If an act is committed with knowledge, the 

vehicle is forfeited, and if it is committed with consent, it is 

forfeited. Thus, a conjunctive, rather than disjunctive, reading 

seems plausible. 

 Of course, one might resort to the legislative history 

to construe the language, but unfortunately the legislative 

history is unhelpful on this issue.20 The textual analysis does 

 

20. The legislative histories of §§ 881(a)(4)(C), (6) and (7) do 

not clearly state whether the conditions for the innocent owner 

defense should be read in the disjunctive or conjunctive. Both § 

881(a)(4)(C) and § 881(a)(7) have sparse legislative histories on 

this point. The legislative histories from both statutes, 

however, reference § 881(a)(6). Where reference in the 

legislative history of §§ 881(a)(4)(C) and (7) is made to § 

881(a)(6), it is appropriate to look at the legislative history 

of § 881(a)(6) in construing those subsections. See 6109 Grubb 

Road, 886 F.2d at 625; United States v. One Parcel of Real Estate 

at 1012 Germantown Road, 963 F.2d 1496, 1505 (11th Cir. 1992). 

However, although Congress suggested that the proper 

interpretation of the "knew or consented" language of § 881(a)(6) 

would require the owner to prove the lack of both, see Joint 

Explanatory Statement of Titles II and III to the Psychotropic 

Substances Act of 1978, 124 Cong. Rec. 17,647 (1978), reprinted 

in 1978 U.S.C.C.A.N. 9518, 9522-23 ("[T]he property would not be 

subject to forfeiture unless the owner knew or consented to the 

[illegal conduct]."), some have questioned whether this statement 

from the legislative history is entitled to much weight because 
not, however, leave 6109 Grubb Road insupportable. Quite to the 

contrary, at least three different reasons justify the 6109 Grubb 

Road approach. First, the 6109 Grubb Road construction avoids 

making the "consent" requirement surplusage. Construing the 

statute to require the claimant to negate both knowledge and 

consent renders the "consent" language redundant. In other 

words, if a claimant established a lack of knowledge, this would 

necessarily negate any consent to the illegal activity, because 

"in order to consent to drug activity, one must know about it." 

United States v. 141st St. Corp., 911 F.2d 870, 878 (2d Cir. 

1990), cert. denied, 498 U.S. 1109, 111 S. Ct. 1017 (1991) 

(quoted in 1 Smith at ¶ 4.02[6][d]). Under a conjunctive 

reading, "[t]he term consent would be totally unnecessary since 

the factfinder would never reach the issue of consent once it 

concluded that the claimant either had knowledge or lacked 

knowledge." 1 Smith at ¶ 4.02[6][d].21

(..continued) 

other parts of the document show confusion on how the forfeiture 

statute was meant to operate. See Loomba, 58 Fordham L. Rev. at 

484. 

 The statement apparently incorrectly intimated that the 

burden of proof as to knowledge and consent was on the 

government, something that is clearly not the case, and at least 

one commentator has concluded from this that the statement may 

have incorrectly understood other aspects of the statute as well, 

including whether the owner must prove both lack of knowledge and 

lack of consent. See Loomba, 58 Fordham L. Rev. at 484. It is 

not entirely clear to us that this statement does put the burden 

of proof on the government and, even if it did, why such a 

mistake means that we should ignore the language suggesting that 

the owner must prove a lack of knowledge and consent. 

Nevertheless, we agree that this legislative history is not very 

helpful. 

21. Of course, any reading (conjunctive or disjunctive) will 

render one of the two terms redundant. As one term (consent) is 
 Second, and more importantly, the 6109 Grubb Road

construction ameliorates some of the harsh effects of the 

forfeiture statute. It allows an owner to keep the property when 

he or she has done everything reasonably possible to prevent its 

use in drug activity. See, e.g., United States v. All Right 

Title & Interest in Property Known as 710 Main St., 744 F. Supp. 

510, 524-25 (S.D.N.Y. 1990) (holding that a landlord who closed 

off portions of a building used in drug trafficking, posted signs 

discouraging drug trafficking, restricted hours of operation of 

one of the businesses, and made anonymous phone calls to the 

police to report drug activity at his property, was an innocent 

owner); United States v. Certain Real Property & Premises Known 

as 171-02 Liberty Ave., 710 F. Supp. 46, 50-53 (E.D.N.Y. 1989) 

(holding on a motion for summary judgment that a landlord who had 

purchased property in a drug infested neighborhood with the 

intention of fixing it up, and who, after admitting knowledge of 

drug related activities in his building cooperated with police to 

try to clean it up, pressed criminal trespass charges against 

some drug dealers, and allowed police to tear down fences and 

steel doors that the dealers had erected to obstruct 

(..continued) 

a subset of the other (knowledge), the alternative disjunctive 

reading of 6109 Grubb Road renders the knowledge term superfluous 

(i.e. once the claimant successfully shows a lack of consent, a 

finding of knowledge would become irrelevant). Consequently, 

while the redundancy argument does not mandate the 6109 Grubb 

Road reading, it does show the impossible textual box that the 

statutory language creates. 
surveillance, had shown enough for a jury to find that he was an 

innocent owner).22

 Third, the 6109 Grubb Road construction avoids a 

potential constitutional problem with the statute (this third 

justification is independent of but related to the second one). 

When a landlord cognizant of drug transactions occurring at his 

or her property tries to do everything he or she reasonable can 

to prevent use of the property in that way, and the drug dealing 

continues, forfeiture of the property may be unduly oppressive. 

See Calero-Toledo, 416 U.S. at 689-90, 94 S. Ct. at 2094-95. 

 Not surprisingly, 6109 Grubb Road is now on one side of 

a circuit split on the question whether the claimant can achieve 

innocent owner status by showing the lack of one of the 

conditions. While the Second and Eleventh Circuits have followed 

6109 Grubb Road, see United States v. 141st St. Corp., 911 F.2d 

870, 877-80 (2d Cir. 1990), cert. denied, 498 U.S. 1109, 111 S. 

Ct. 1017 (1991); United States v. One Single Family Residence 

Located at 15603 85th Ave. N., 933 F.2d 976, 982 (11th Cir. 1991) 

(stating that an owner with actual knowledge that the property 

was used or is being used for drug trafficking can keep the 

 

22. The Second Circuit, however, has set quite a high threshold 

for owners in similar situations to show that they took 

reasonable steps to prevent the improper use. See United States 

v. Two Parcels of Property Located at 19 and 25 Castle Street, 

New Haven, CT., 1994 WL 378646 (2d Cir. July 18, 1994) (owners 

whose children were using drugs in home and who asked their 

children to attend a rehabilitation program, sent some of the 

children away, and notified police of narcotics activity in the 

neighborhood, did not undertake every reasonable means of 

preventing the improper use and were not innocent owners). 
property if he can show that "everything reasonably possible was 

done" to prevent the taint),23 the Ninth Circuit has adopted the 

opposite position, see United States v. One Parcel of Land at Lot 

111-B, 902 F.2d 1443, 1445 (9th Cir. 1990) ("[I]f the claimant 

either knew or consented to the illegal activities, the `innocent 

owner' defense is unavailable."); see also 890 Noyac Road, 739 F. 

Supp. at 113-115 (providing a good explanation of the problem 

with 6109 Grubb Road); cf. 1989 Jeep Wagoneer, 976 F.2d at 1174 

(8th Cir.) (noting the circuit split without not taking a 

position on the question).24 

 

23. See 1012 Germantown Road, 963 F.2d at 1504-05 (11th Cir.) 

(interpreting § 881(a)(7)'s innocent owner defense to require 

only that the owner prove a lack of knowledge or a lack of 

consent; "an owner can avoid forfeiture by proving either 

ignorance or non-consent"); United States v. One Parcel of 

Property, Located at 755 Forest Road, 985 F.2d 70 (2d Cir. 1993) 

("The so-called `innocent owner' defense is an affirmative 

defense to be proven by the owner-claimant. It permits an owner 

to avoid forfeiture by establishing [by a preponderance of the 

evidence] either that [s]he had no knowledge of the narcotics 

activity, or if [s]he had knowledge, that she did not consent to 

it." (internal quotations omitted)); United States v. Certain 

Real Property & Premises Located at 418 57th Street, 922 F.2d 

129, 131 (2d Cir. 1990) (reversing a grant of summary judgment 

because the "holding in 141st Street mandates consideration of 

consent as well as knowledge when adjudicating an innocent owner 

defense to drug forfeiture"); United States v. One 107.9 Acre 

Parcel of Land, 898 F.2d 396 (3d Cir. 1990) (following 6109 Grubb 

Road and denying a non-consent defense on the ground that it was 

supported by nothing other than uncorroborated and self-serving 

statements). 

24. Indeed subsequent statements in Congress show disagreement 

within Congress over whether 6109 Grubb Road misread the statute. 

Compare 136 Cong. Rec. 6586, 6594 (1990) (statement of Sen. Dole) 

(proposing an amendment to § 881(a)(7) to remedy the 

"incorrectness of the [6109 Grubb Road] holding") with 139 Cong. 

Rec. S15,612-13 (daily ed. November 10, 1993) (statement of Sen. 

Jeffords) (introducing a bill, S. 1655, 103rd Cong. 1st Sess. 

(1993), the Civil Asset Forfeiture Reform Act, which changes the 
 The upshot of this extended analysis of 6109 Grubb Road

is that, while reasonable people can disagree about its 

correctness, 6109 Grubb Road is defensible. The 6109 Grubb Road

construction of the statute sensibly works to the benefit of 

people who own property before the illegal act is committed. 

However, as we have discussed, 6109 Grubb Road ensures that a 

post-illegal-act transferee who did not know of the illegal act 

at the time it occurred will always be able to make out the 

innocent owner defense, regardless of whether he or she knew 

about the taint at the time of the transfer. 

 The 6109 Grubb Road opinion makes no mention of this 

problem. But that is understandable because, at the time 6109 

Grubb Road was decided, its construction would have had no effect 

at all on the rights of post-illegal-act transferees. At that 

time it was generally assumed that because of the "relation back" 

provision of the forfeiture statute, 21 U.S.C. § 881(h), which 

vested title in the United States at the moment of the illegal 

act, a post-illegal-act transferee could never have better title 

than the United States and could never benefit from the innocent 

(..continued) 

language in § 881(a)(7) so that it clearly adopts the 6109 Grubb 

Road approach). The Senate bill, S. 1655, is companion 

legislation to H.R. 2417, 103rd Cong. 2d Sess. (1993), introduced 

in the House by Representative Hyde. The bills propose 

dramatically to weaken 21 U.S.C. § 881 and are designed 

specifically to reject case law requiring an owner to show a lack 

of both knowledge and consent. 139 Cong. Rec. at S15,613 (daily 

ed. November 10, 1993) (citing United States v. One Parcel of 

Land at Lot 111-B, 902 F.2d 1443, 1445 (9th Cir. 1990) (endorsing 

a conjunctive construction of the innocent owner language)). 
owner defense.25 In 1993, however, the Supreme Court decided 

United States v. Parcel of Land, Bldgs., Appurtenances & 

Improvements at 92 Buena Vista Avenue, Rumson, N.J., 113 S. Ct. 

1126 (1993), holding that the relation back provision does not 

defeat the rights of a post-illegal-act transferee who otherwise 

satisfies the requirements for the innocent owner defense under § 

881(a)(6). Thus, 92 Buena Vista Avenue has the effect of making 

the "knowledge or consent" language of the statute as interpreted 

by 6109 Grubb Road applicable to post-illegal-act transferees 

and, in turn, creates the problem of insulating certain owners 

who one reasonably might not consider to be deserving. 

 

 3. Dealing With The Dilemma

 One possible solution to this problem would be to 

divide potentially innocent owners into two categories, pre-

 

25. See Eggleston v. Colorado, 873 F.2d 242, 248 (10th Cir. 

1989) (holding that the innocent owner provision could not help 

such subsequent owners because they were not owners; "[t]he 

innocent owner exception applies only to owners whose interest 

vests prior to the date of the illegal act that forms the basis 

for the forfeiture"), cert. denied, 493 U.S. 1070, 110 S. Ct. 

1112 (1990); In re One 1985 Nissan, 889 F.2d 1317 (4th Cir. 1989) 

(holding the same and citing Eggleston and United States v. 6109 

Grubb Road, 708 F. Supp. 698 (W.D. Pa. 1989) to support its 

conclusion); see also S. Rep. No. 225, 98th Cong., 2d Sess., 196 

(1983), reprinted in, 1984 U.S.C.C.A.N. 3182, 3379 ("In civil 

forfeitures, such [subsequent] transfers are voidable, for the 

property is considered `tainted' from the time of its prohibited 

use or acquisition."); United States v. $41,305.00 in Currency & 

Traveler's Checks, 802 F.2d 1339, 1346 (11th Cir. 1986) 

(suggesting that subsequent bona fide purchasers could not be 

innocent owners because of § 881(h)). 
illegal-act owners and post-illegal-act transferees, and apply 

the 6109 Grubb Road disjunctive test to the first category but 

the conjunctive test to the second one.26 That approach is, in 

fact, what one federal district court in Florida has followed. 

See United States v. One Parcel of Real Estate Located at 6640 

S.W. 48th St., 831 F. Supp. 1578 (S.D. Fla. 1993). In 6640 S.W. 

48th Street, the court was confronted with essentially the same 

problem in this case (except that it was applying § 881(a)(7)). 

The court recognized that 92 Buena Vista Avenue created a problem 

in applying the innocent owner provision to post-illegal-act 

transferees in jurisdictions (including its own) following the 

6109 Grubb Road approach, since it realized that under such an 

approach, the claimant would be declared an innocent owner 

because "[he] could not possibly have consented to . . . the 

illegal activities." Id. at 1585. To avoid that result, the 

court declined to follow the 6109 Grubb Road approach in such a 

 

26. Another possible approach would be to treat the term 

"consent" as encompassing a notion of retroactive consent. Under 

certain circumstances, the law treats consent as operating 

retroactively. The concept of ratification in agency law, for 

example, allows a principle to be bound by an agent's 

unauthorized prior act if he knows about it and fails to take 

affirmative steps to disavow the act. See Restatement (Second) 

of Agency § 83 (1958). But such a notion of retroactive consent 

is a stretch from what is ordinarily meant by the word consent. 

Indeed, perhaps because of this, even in agency law the concept 

of ratification requires a special relationship and does not 

prevent a contracting party from keeping the profits from a 

transaction induced by the fraud of a third person if he did not 

know of the fraud until after the transaction was completed. Id.

at cmt. c. We therefore believe that, given the absence of any 

indication to the contrary from Congress, we should employ the 

more conventional definition of consent. 
context, and concluded that the consent language should be 

ignored altogether when considering a post-illegal-act 

transferee: "Consent is simply irrelevant when examining the 

innocent owner claims of post-illegal act transferees." Id. 

 By performing what might be termed an act of judicial 

legislation, the court closed a "loophole" in the statute and 

prevented post-illegal-act transferees with knowledge at the time 

of the transfer of the property's taint from escaping the 

forfeiture statute. But the statute simply draws no such 

distinction between pre-illegal-act owners and post-illegal-act 

transferees. We cannot justify reading the very same language in 

a statute disjunctively with respect to one class of owners and 

conjunctively with respect to another, in the absence of any 

instruction from Congress to do so. The dissent contends that a 

failure to draw such a distinction would constitute judicial 

abdication, citing cases which require us "to construe a statute 

to avoid absurd results, if alternative interpretations are 

available and consistent with the legislative purpose." United 

States v. Schneider, 14 F.3d 876, 879-80 (3d Cir. 1994) (citing 

Griffin v. Oceanic Contractors, 458 U.S. 564 (1982)). The 

obligation as expressed in these cases does not involve or 

support, however, reading statutory language differently in the 

absence of a justification in either the language of the statute 

or the legislative history. In this case, there is no such 

instruction in either the statute or legislative history. 

 Given that the language of the statute as interpreted 

by 6109 Grubb Road favors Goodman in this context, we are faced 
with, at the very least, an ambiguity in the statutory language. 

Because § 881(a)(4) is punitive and quasi-criminal in nature, see

Austin v. United States, 113 S. Ct. 2801, 2810-2811 (1993) 

(holding that §§ 881(a)(4) and 881(a)(7) are punitive in nature), 

we must apply the rule of lenity, which requires us to resolve 

the ambiguity in favor of the claimant, see United States v. 

Thompson/Center Arms Co., 112 S. Ct. 2102, 2110 & n.10 (1992) 

(applying the rule of lenity in construing a punitive tax statute 

in a civil setting).27 Thus, on remand, if Goodman can show that 

he did not know that the Rolls Royce was being used or going to 

be used in the DiSalvo or Ianarella meetings at the time they 

took place, then he will be able to show that he did not consent 

to the use and, under 6109 Grubb Road, will be entitled to the 

innocent owner defense. 

 We might be tempted to draw a similar distinction to 

that drawn by the court in 6640 S.W. 48th Street despite the 

absence of any guidance from Congress if the result we have 

reached here were unreasonable. But it is not unreasonable to 

think that post-illegal-act transferees of property interests 

would not be subject to forfeiture, at least with respect to §§ 

881(a)(4) and (7) forfeitures. The principal goal of §§ 

881(a)(4) and (7), which are aimed at forfeitures of property 

used to facilitate drug trafficking, is to give owners of 

property an incentive to prevent use of that property in the drug 

 

27. See also id. at 2114 (Stevens, J. dissenting) ("The main 

function of the rule of lenity is to protect citizens from the 

unfair application of ambiguous punitive statutes."). 
trade. People who are not owners at the time the act is 

committed are simply in no position to prevent the improper use. 

Penalizing such owners would do little to accomplish the ends of 

those forfeiture statutes.28

 Moreover, at a much more fundamental level, the Court's 

decision in 92 Buena Vista Avenue creates substantial doubt that 

post-illegal-act transferees without knowledge of the illegal act 

until after it happened are within the scope of the forfeiture 

statutes. In 92 Buena Vista Avenue, the Court discussed, in 

dicta, the question whether such owners were within the scope of 

§ 881(a)(6). Although the plurality suggested that equitable 

principles (and not the statutory language) might prevent a postillegal-act transferee with knowledge of the illegal act at the 

 

28. This argument is somewhat suspect if 6109 Grubb Road applies 

to § 881(a)(6), since § 881(a)(6)'s language providing for 

forfeiture of all "proceeds traceable" to drug transactions 

appears to include within its scope property in the hands of 

post-illegal-act transferees. See 124 Cong. Rec. 23,057 (1978) 

(remarks of Sen. Nunn) (explaining the rationale for § 881(a)(6) 

was "to make it clear that a bona fide party who has no knowledge 

or consent to the property he owns having been derived from an 

illegal transaction [would not have the property forfeited]"); 

id. at 23,056 (remarks of Sen. Culver) (describing the provision 

as reaching property traceable to illegal proceeds); id. at 

34,667 (remarks of Sen. Culver) ("This amendment would authorize 

Federal officers to seize such moneys much as they now seize 

illicit drugs and vehicles that are used to transport or conceal 

these substances. In certain cases they would also be able to 

seize property that is traceable to such illegal transactions."); 

see also S. Rep. No. 98-225, 98th Cong., 2d Sess. 195-96, 

reprinted in 1984 U.S.C.C.A.N. 3182, 3378-79 (describing that 

part of the forfeiture scheme is to reach property that has been 

transferred by one involved in drug trafficking to avoid 

forfeiture). Perhaps because § 881(a)(6) appears to reach postillegal-act transferees, we have been unable to find a court of 

appeals decision that squarely applied the 6109 Grubb Road

analysis in the context of § 881(a)(6) forfeiture. 
time of the transfer from having the benefit of the innocent 

owner defense, it ultimately avoided the issue by stating that 

"respondent has assumed the burden of convincing the trier of 

fact that she had no knowledge of the alleged source of [the 

property]." 113 S. Ct. at 1137. In a concurring opinion, 

however, Justice Scalia stated that it would not be absurd to 

think that the forfeiture statutes did not reach post-illegal-act 

transferees who knew about the act creating the taint at the time 

of transfer, but not at the time it occurred: 

 I do not find inconceivable the possibility 

that post-illegal-act transferees with postillegal-act knowledge of the earlier 

illegality are provided a defense against 

forfeiture. The Government would still be 

entitled to the property held by the drug 

dealer and by close friends and relatives who 

are unable to meet their burden of proof as 

to ignorance of the illegal act when it 

occurred. 

92 Buena Vista Avenue, 113 S. Ct. at 1142 (Scalia, J., 

concurring). If Justice Scalia is right, allowing post-illegalact transferees with post-illegal-act knowledge to be outside the 

scope of the forfeiture statute is defensible, and thus a 

straightforward application of 6109 Grubb Road to post-illegalact transferees would not create an absurd result.29 

 

29. It is important to note that the discussion in 92 Buena 

Vista was focused on defining "knowledge" under the innocent 

owner defense, i.e., on whether "knowledge" meant pre-illegal-act 

knowledge. Thus 92 Buena Vista suggests that a post-illegal-act 

transferee with post-illegal-act knowledge would be beyond the 

reach of the forfeiture statutes for reasons wholly independent 

of the 6109 Grubb Road construction of the statute. We do not 

suggest that 92 Buena Vista directly validates the 6109 Grubb 

Road construction. Rather, we refer to 92 Buena Vista in this 
 In his dissent in 92 Buena Vista Avenue, Justice 

Kennedy complained that "the plurality's opinion leaves the 

forfeiture scheme that is the centerpiece of the Nation's drug 

enforcement laws in quite a mess." In the context of the present 

case, Justice Kennedy was only partially right. It is not so 

much the plurality's opinion in 92 Buena Vista Avenue that leaves 

the civil forfeiture laws in chaos, nor for that matter is it 

this court's interpretation of the statute in 6109 Grubb Road. 

In our estimation, the problem originated in Congress when it 

failed to draft a statute that takes into account the substantial 

differences between those owners who own the property during the 

improper use and some of those who acquire it afterwards. 

Although a schizophrenic reading of the text might solve the 

problem, the better solution, we believe, is to apply 6109 Grubb 

Road. Congress should redraft the statute, if it desires a 

different result. The judgment of the district court will be 

vacated and the case remanded for further proceedings consistent 

with this opinion. 

(..continued) 

context to show that the result that 6109 Grubb Road invites is 

not unreasonable. 
United States v. One 1973 Rolls Royce, No. 93-1417 

NYGAARD, Circuit Judge, dissenting: 

 I disagree with my colleagues that we should be 

controlled in how we interpret § 881(a)(4)(C) by United States v. 

6109 Grubb Road, 886 F.2d 618, 623-626 (3d Cir. 1989) and the 

conclusion they reach; that a purchaser of property, forfeitable 

in the seller's hands, need only show either a lack of knowledge 

or a lack of consent to raise an "innocent owner" defense under § 

881(a)(7), and thereby shield the property from forfeiture. 

 Indeed, the majority's holding completely nullifies the 

"willful blindness" provision of that section, because a 

purchaser who is ignorant of a property's illicit use, whether 

willfully or innocently, can logically neither grant nor deny 

consent to how his predecessor used it. Moreover, one can 

neither deny nor give consent to the use of property unless one 

has either ownership or control, or for that matter, some legally 

cognizable interest in it. Hence, applying Grubb to willfully 

blind, post-illegal act transferees will create a virtual 

windfall for them, because they cannot lose. Following the 

majority's conclusion, one such as Goodman may purchase a 

mobster's car, knowing it to have been used to facilitate drug 

trafficking, with full confidence that it is shielded from 

forfeiture because he did not give the mobster his consent to use 

the property illicitly. 
 The majority reaches its conclusion because it is 

unable to reconcile the district court's holding with Grubb,

involving § 881 (a)(7) and United States v. 92 Buena Vista., 113 

S.Ct. 1126 (1993), which interpreted § 881 (a) (6) and (h). In 

reversing the district court, which held that Grubb does not 

apply to forfeitures under § 881(a)(4)(C), the majority concludes 

that under Grubb Goodman could invoke the innocent owner defense 

if he did not consent to his predecessor-in-title's use of the 

Rolls Royce to facilitate illegal drug transactions; this despite 

willfully blinding himself to that very fact. 

 I simply do not believe that Grubb even applies to 

post-illegal-act property purchasers who are aware of or 

willfully blind to their property's past use in facilitating 

illegal drug transactions. Neither Grubb nor Buena Vista

applies to post-illegal-act transferees and neither interprets § 

881 (a)(4)(c). The "willful blindness" language unique to §§ 

(a)(4)(C) requires us to interpret the innocent owner defense of 

that section differently from subsections that do not contain the 

willful blindness language; for example §§ (a)(6)&(7). I would 

disallow knowing or willfully blind purchasers of otherwise 

forfeitable property from invoking the innocent owner defense, 

and not expansively apply Grubb to these facts when it clearly is 

not warranted. 

 I also reject the majority's resignation that only 

Congress can cure this difficulty. This, I fear, is more an act 
of judicial abdication than judicial restraint. I believe we are 

obligated to make sense of the statute and avoid a result that 

contradicts its purpose. It may be true, as my colleagues 

suggest, that the problem should be remedied by Congress. I 

suggest, however, that we cannot hide so easily. We are 

obligated to construe the statute to avoid absurd results if 

alternative interpretations are available, plausible and 

consistent with its purpose. United States v. Schneider, 14 F.3d 

876, 879-80 (3d Cir. 1994)(citing Griffin v. Oceanic Contractors, 

Inc., 458 U.S. 564 (1982)). 

 In sum, according to my colleagues' 

"straightforward" conclusion, condensed at page 8 of their 

Opinion (Maj. typsc. p. 8) , in Goodman's case he need only show 

that he did not consent to the Rolls Royce's illicit use, and is 

then entitled to innocent owner status. I believe, however, 

their analysis contravenes both logic and Congress' very purpose 

in promulgating § 881, that is, to curb illegal drug activity. I 

must respectfully dissent. 

 I. 

 First, however, I conclude that the district 

court applied the correct standard in 

assessing whether Goodman was willfully blind 

within the meaning of § 881(a)(4)(C). The 

test employed by the district court was not a 

negligent or an objective due care standard, 
nor was it inconsistent with our precedent 

defining willful blindness. With no case of 

this court directly on point, the district 

court developed its own standard: 

 Lack of willful blindness sufficient to 

prevail as an innocent owner under 

 § 881(a)(4)C) means that a claimant must show 

that he or she has not ignored a signal or 

suggestion that a vehicle might have been 

used to facilitate the trafficking of illegal 

drugs . . . . [O]nce the claimant chooses to 

ignore the signal, he or she can no longer 

establish lack of willful blindness to the 

prior use of the vehicle that would subject 

it to forfeiture. 

 I would conclude that the district court's standard for 

establishing willful blindness is consistent with United States 

v. Caminos, 770 F.2d 361, 365 (3d Cir. 1985), in which we said 

that a "deliberate ignorance" jury charge "[m]ust make clear that 

the defendant himself was subjectively aware of the high 

probability of fact in question, and not merely that a reasonable 

man would have been aware of the probability." 

 Ultimately, the district court made a subjective 

inquiry into Goodman's state of mind when it found that he 

ignored rather obvious signals or suggestions that the Rolls 

Royce was legally infected and subject to forfeiture when he 

acquired it. As the district court found, Goodman knew of 

Scarfo's illegal activities. Moreover, that he had 

countersurveillance equipment removed from the vehicle further 

suggests that he was continually aware that it was legally 
tainted after the transfer. On this basis, the trial judge made 

a clear credibility determination against Goodman's claim, "that 

he had absolutely no indication [that] the Rolls Royce was ever 

utilized to facilitate drug trafficking", and found his testimony 

to be incredible. I conclude the district court employed a 

subjective standard and found that Goodman was willfully blind, 

to which we must defer in the absence of clear error. I would 

affirm both the district court standard and its subjective 

assessment that Goodman was willfully blind. 

 II. 

 Second, Grubb held, in the context of § 881(a)(7), 

another drug forfeiture subsection, that an owner who knows a 

vehicle is legally contaminated will still be considered an 

innocent owner upon showing that he or she did not consent to its 

drug-trafficking use. From similarities between § 881(a)(4)(C) 

and other drug forfeiture subsections, particularly §§ 881(a)(6) 

and (a)(7), and because we rendered a disjunctive reading of § 

881(a)(7) in 6109 Grubb Road, the majority concludes that § 

881(a)(4)(C) should also be read disjunctively. 

 Section 881(a)(4)(C), however, contains the willful 

blindness language found in neither §§ 881(a)(6) nor (a)(7), 

civil forfeiture subsections which only provide for an innocent 

owner defense when there is a lack of knowledge or a lack of 

consent. Moreover, the legislative history establishes that § 
881(a)(4)(C)'s willful blindness language is not mere surplusage 

and should not be treated as such. 

 If we apply Grubb to forfeitures under § 881(a)(4)(C) 

involving willfully blind, post-illegal act transferees, we 

wholly disregard § 881(a)(4)(C)'s willful blindness language and 

Congress' intent to prevent willfully blind owners from invoking 

the innocent owner defense. If a claimant fails to prove lack of 

willful blindness, but can alternatively prevail by satisfying 

the sure-winner defense for a non-owner -- lack of consent -- 

then the willful blindness language becomes utterly nullified. 

 A disjunctive reading of § 881(a)(4)(C)'s "knowledge, 

consent or willful blindness" brings the language into direct 

conflict with itself, thus producing an absurd result with 

respect to willfully blind subsequent owners. Nevertheless, the 

majority applying Grubb, holds that Goodman should be allowed to 

prove his innocent ownership based on lack of consent. Since 

consent involves an owner's acquiescence to the property's use in 

drug trafficking, Goodman, as a subsequent owner or transferee, 

will always be able to show a lack of consent if he had no legal 

interest in or control of the Rolls Royce when it was used to 

facilitate the drug transaction. 

 As a result, any finding that Goodman was willfully 

blind to the vehicle's taint when he received it is useless, 

because if "blind," whether willfully or ignorantly, he did not 
know and could not give or deny his consent, even if somehow 

authorized or empowered to do so. In other words, willful 

blindness conceptually presupposes the absence of knowledge and 

consent. When an owner fails to prove that his lack of knowledge 

is not the result of willful blindness, the less stringent 

standards for proving lack of knowledge and lack of consent are 

then irrelevant. 

 The premise of Grubb is that the language of § 

881(a)(7), (no property shall be forfeited "by any reason of any 

act or omission established by that owner to have been committed 

or omitted without the knowledge or consent of that owner") 

should be read disjunctively because of Congress' use of the 

traditionally disjunctive word "or." According to Grubb's 

analysis of § 881(a)(7), Congress' use of the word "or" implies 

that each provision to which it refers should be given 

independent weight. Yet, by a disjunctive reading of § 881 

(a)(4)(C), a subsequent owner who avoids investigating an obvious 

possibility that his or her property is forfeitable in the hands 

of the transferor, will always be able to establish innocent 

owner status because of his or her lack of consent. In sum, a 

disjunctive interpretation of § 881(a)(4)(C) is tantamount to 

ignoring the willful blindness language of that subsection. I do 

not read it that way. 

 The district court also remedied this problem by 

refusing to apply Grubb to cases involving willfully blind, post-
illegal act transferees. The district court differentiates 

between owners who use their property to facilitate drug 

trafficking, where application of Grubb would make sense; and 

willfully blind post-illegal-act transferees, where its 

application would not. I would too. The import of this 

differentiation is that we should not blindly read the "or" in § 

881(a)(4)(C) disjunctively, but rather, should examine the 

context in which "or" is used, because in some circumstances "or" 

does not apply or should be read as "and". Reiter v. Sonotone 

Corp., 442 U.S. 330, 339 (1979)(terms connected by a disjunctive 

word must be given their separate meanings unless the context 

dictates otherwise); see also United States v. Smeathers, 884 

F.2d 363-64, (8th Cir. 1989)(citing United States v. Moore, 613 

F.2d 1029, 1040 (D.C.Cir. 1979))(the word "or" connotes 

disjunction except when a disjunctive reading would frustrate 

legislative intent). 

 Finally, Buena Vista does not create doubt that postillegal act transferees, aware of a property's taint at the time 

of its conveyance or thereafter, should benefit from the 

forfeiture statutes' innocent owner defenses. Section 881 

codifies the common law relation back doctrine, as defined by the 

Supreme Court in United States v. Stowell, 10 S.Ct. 244, 247 

(1889), which prevents the possibility of a post-illegal act 

transferee invoking the innocent owner defense, because title to 
a defendant's property vests in the government at the time the 

drug crime occurs. 

 In Buena Vista, the Supreme Court purposely did not 

address whether post-illegal act transferees could invoke the 

innocent owner defense because in that case the "respondent . . . 

assumed the burde 

n of convincing the trier of fact that she had no knowledge of 

the alleged source of [the property]." Buena Vista, 113 S.Ct. at 

1137. Hence, consideration of whether post-illegal act 

transferees, aware of a property's taint only at the time of 

conveyance or thereafter, was not central to the Court's 

analysis. The Court did, however, address the issue in dictum,

but then leaned away from the majority position here. It stated 

that equitable doctrines may foreclose the assertion of the 

innocent owner defense by a post-illegal act transferee "with 

guilty knowledge of the tainted character of a property." Id. 

 In sum, given the legislative history of § 881 

(a)(4)(C)'s willful blindness language and Buena Vista's 

instructional dictum about foreclosing the innocent owner defense 

for willfully blind subsequent owners and transferees, the 

district court did not err by concluding that Grubb does not 

apply to purchasers of forfeitable property. Section 

881(a)(4)(C)'s "knowledge, consent or willful blindness" language 

requires a conjunctive reading to prevent conflict among the 

provisions, because consent to the vehicle's use in drug activity 
is irrelevant if one is a willfully blind post-illegal act 

transferee. Then too, given the district court's finding of 

willful blindness alone, Goodman was precluded from making an 

innocent owner defense under that subsection's other provisions. 

I conclude that the subject vehicle was properly forfeited and 

so, dissent.