United States District Court, M.D. Alabama, Northern Division
OPINION AND ORDER
MYRON H. THOMPSON, District Judge.
A jury convicted defendant Willie C. Moody of several drug offenses. Pursuant to 21 U.S.C. § 853 and as a result of the convictions, the government seeks forfeiture of two parcels of real property and nine firearms. Both the government and Moody waved a jury trial on the issue of forfeiture. Based on the evidence presented to the jury and at a supplemental bench hearing, the court holds that Moody's interest in the real property should be forfeited, but that his interest in the firearms should not.
The jury convicted Moody of conspiracy to distribute and possess with intent to distribute less than 50 grams of a mixture or substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. § 841(a)(1) (Count 1); possession with intent to distribute and distribution of methamphetamine in violation of 21 U.S.C. § 841(a)(1) (Counts 2-4); and use of a communication facility in committing those offenses in violation of 21 U.S.C. § 843(b) (Counts 5-18).
Evidence presented in support of these convictions included the following: Moody would buy methamphetamine from a larger distributor named Mark Elliott and would subsequently sell the drugs to others. Moody's drug activity was uncovered in part through several wiretaps in October 2012 in which he and Elliott arranged drug deals. Further, on three separate occasions in September, October, and December 2012, law-enforcement officials conducted controlled buys between Moody and a confidential informant at the gate on Moody's property located at 9555 Central Plank Road in Wetumpka, Alabama. The confidential informant wore a video camera to each of the three controlled buys and captured his interactions with Moody.
The Central Plank Road property, which the government seeks to have forfeited, consists of the two parcels. The first parcel is 162.01 acres and includes a cabin, a pond, and woods. The parcel is land-locked, and the land and cabin, when combined, are valued at $593, 700. The second parcel is 4.61 acres and consists of mostly a driveway that provides access from a road to the cabin. On the second parcel there is a metal gate that restricts access to the driveway as well as to the cabin and surrounding property. The second parcel is valued at $18, 630. The two parcels have separate legal descriptions and tax assessments, but were conveyed together in a single deed. Moody claims a one-half interest in each of the two parcels.
The nine firearms sought by the government are a Winchester, model 70 XTR, .270 caliber rifle; a.410 shotgun from an unknown manufacturer; a Remington Arms Company, Inc., model 870, 12 gauge shotgun; a Remington Arms Company, Inc., model 522, .22 caliber rifle; a Remington Arms Company, Inc., model 1100, 12 gauge shotgun; a Remington Arms Company, Inc., model 572, .22 caliber rifle; a Rossi rifle; another Remington Arms Company, Inc., model 522, .22 caliber rifle; and a Remington Arms Company, Inc., model 742, 30-06 rifle.
II. Applicable Law
"Any person convicted of [certain specified drug crimes] punishable by imprisonment for more than one year shall forfeit to the United States... any of the person's property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation." 21 U.S.C. § 853(a)(2).
"As soon as practical after a verdict or finding of guilty.. on any count in an indictment or information regarding which criminal forfeiture is sought, the court must determine what property is subject to forfeiture under the applicable statute." Fed.R.Crim.P. 32.2(b)(1)(A). "If the government seeks forfeiture of specific property, the court must determine whether the government has established the requisite nexus between the property and the offense." Id . The nexus may be established by a preponderance of the evidence. United States v. Dicter , 198 F.3d 1284, 1289 (11th Cir. 1999).
Thus, for the two parcels and the nine firearms to be subject to forfeiture, the government must show by a preponderance of the evidence that the parcels and firearms were "used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of" the drug activity in this case. 21 U.S.C. § 853(a)(2).
A. Property Subject to Forfeiture
The court finds that both parcels of real property should be forfeited. However, because the court is not convinced of the requisite nexus between the firearms and the drug activity, the court ...