Petition for Writ of Certiorari — Dyer v. United States

94 217 AUC 1 199%

No._____gEICE O£ JHE CLERK

IN THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1994

SUSIE DYER

PETITIONER

vs.

UNITED STATES OF AMERICA

PLAINTIFF -RESPONDENT

&

136.00 ACRES MORE OR LESS, LAND LYING AND BEING

IN LAND LOT 221 OF THE 18TH DISTRICT, 1ST

SECTION, TOWNS COUNTY, GEORGIA WITH MAILING

ADDRESS ROUTE 2, BOX 472, HIAWASSEE, GEORGIA,

DEFENDANT - RESPONDENT

&

DYER'S TROUT FARMS, INC.

CLAIMANT -RESPONDENT

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Mrs. Susie Dyer (Pro Se)

Route 2, Box 472

Hiawassee, GA 30546

706-896-3069

\08 iF

QUESTIONS PRESENTED FOR REVIEW

1. Did the Circuit Court err when it failed

to stay enforcement of a forfeiture action in

order to allow the Towns County Superior Court

to make a valid determination according to

State law, in State Court of issues of

ownership relating to the validity of 1978 deed

to an invalid corporation?

2. Did the Circuit Court err when it denied

the Petitioner's motion to intervene as

Claimant on appeal of the forfeiture action

against her farm, when she had no prior notice

of her own standing to contest the forfeiture

and any notice of the forfeiture itself was

therefore meaningless?

3. Did the Circuit Court err when it denied

the Petitioner's motion to intervene on the

appeal of a forfeiture by a purported corporate

title holder whose validity was assailed when

its innocent owner defense was denied, without

evidence of an agency relationship with the

alleged wrongdoer, vesting ownership of the

res in Petitioner?

4. Does asset forfeiture, as applied to a

family homestead such as the property at issue,

violate Article III, Paragraph 3 of the United

States Constitution?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW i

TABLE OF CONTENTS iii

TABLE OF AUTHORITIES Vv

OPINIONS BELOW x

JURISDICTION OF THE SUPREME COURT xi

CONSTITUTIONAL PROVISIONS AND STATUTES xiii

STATEMENT OF THE CASE 1

ARGUMENT AND LEGAL AUTHORITY 11

5. DENIAL OF INTERVENTION AS CLAIMANT ON APPEAL

VIOLATED THE TENTH AMENDMENT WHERE PETITIONER

WAS ENTITLED TO A STATE COURT JURY TRIAL TO

DETERMINE ISSUES OF OWNERSHIP. 11

a. In a Forfeiture Action, the Question

¢ Whet] : Setinriten)

Owns the Property is for the Jury. 11

15

Cc. j Ww i

Entity be Disregarded. 16

d. The Deed of 1978 is not Valid 20

e. j j Resi

the Estate 22

6. DENIAL OF INTERVENTION DEPRIVED PETITIONER

OF DUE PROCESS BECAUSE SHE HAD NO PRIOR NOTICE

OF HER OWN STANDING TO CONTEST THE FORFEITURE

AND ANY NOTICE OF THE FORFEITURE. ITSELF WAS

MEANINGLESS 23

,; Petits

Be Apprised of Her Standing to. Contest the

Forfeiture 24

b. Merits of Intervention 29

c. Applicable Factors 32

1) Timeliness 32

2) Sufficiency of Interest 37

3) Impairment of Interest 38

4) Inadequacy of Representation 38

7. DENIAL OF THE INNOCENT OWNER DEFENSE

ASSAILED THE VALIDITY OF THE CORPORATION 39

8. FORFEITURE VIOLATES U.S. CONSTITUTION ART.

3, Se. 2. 46

REASONS FOR GRANTING CERTIORARI 49

CERTIFICATE OF SERVICE $4

APPENDIX

Order of District Court

Eleventh Circuit Order

Memorandum of Hearing

iv

be > Sai Le sw RIT oe hn? a a I th: A Sete RA 2

GR Oe = Wer rh eee wate tins CD, Lancet aes

TABLE OF AUTHORITIES

Armstrong v. Manzo, 380 U.S. 545, 552,

85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). 25

j Vv 964

F.2d 1227 (ist Cir. 1988) a3, ae 28

33, 34

Brown $v. Momar.Ime., 411 8$.8.2€ 718, 201

Ga.App. 542 (Ga.App. 1991). 24

j Vv , £225 &Si3B.26 463,

101 Ga.App. 811 (Ct.App. 1960). 20

Davi Vv vis, 419 S.E.2d 913, 262 Ga. 420

(1991). 19

Farmers Warehouse of Pelham v. Collins, 220 Ga.

141, 137 S.E.2d 619 (1964). a?

Federal Deposit Insurance Corp. v. U.S. 654

F.Supp 794 (N.D.Ga. 1986) 17

Fludd v. Tiller, 184 Ga.App. 93, 360 S.E.2nd

647 (C.A.Ga. 1987). 16

Fuentes v. Shevin 407 U.S. 67, 80, 92 S.Ct.

1983, 1994, 32 L.Ed.2d 556 (1972). 25

Gary v. Radford, 59 S.E.2 915, 207 Ga. 38

(S.Ct.Ga. 1950). 21

j j Vv in

Administration, 738 F.Supp. 487

(N.D.Ga. 1989). 40

Hurd v. linois B T hon . 234 F.2¢4

942 (7th Cir. 1956). 31

ie,

In re Universal Profile, Inc., 6 B.R. 196, 201 |

(N.D.Ga. 1980) 17

In re Davis, 16 B.R. 553, 554 (U.S.Bank.Ct.,

S.D.Fla. 1981). 39 |

Jenkins v Judith Sales Int'l, Inc., 332 S.E.2d —

687, 175 Ga.App. 171 (1984). 41, 43 |

Kelly v. Austell Building Supply, 297 S.E.2d |

292, 164 Ga.App. 322 (1982). 440

:

Lucas v. Hope, 515 F.2d 234 (5th cir. 1975)

Reh.Den. 523 F.2D 1055, cert.Den. 96 S.Ct. |

1464, 424 U.S. 967, 47 L.E.2D 734. 15 |

Marett v. Professional Insurance Careers, 410 |

S.E.2d 373, 201 Ga.App. 178. 17

Vv ! , 174 Ga.App. 66, 329

S.E.2a@ 197 (1985). 18

McCollum v. Loveless, 196 S.E.430, 432, 185 Ga.

748 (S.Ct.Ga. 1938). 20

MeCullen v. Cooper, 125 Ga. 435,

54 $.E.97 21

McGehee v. Pope, 105 S.E.2nd 26 )

(S.Ct.Ga. 1928) 21

Meyer _v. Macmillan Publishing Co., Inc. 85

F.R.D, 149, 150 (D.C.N.Y. 1980). 33

Miller v. United States, 114 F.2d 267, 269 (7th

Cir. 1940), cert. denied 313 U.S. 591, 61 S.Ct. |

1114, 85 L.5d.1545 (1941). 30 |

Nevilles _v. £.£.0.C. 511 F.2d. 303, 305

(C.A.Mo. 1975). 32 |

O.C.G.A. §53-4-2. 213

;

vi |

0O.C.G.A. §53-2-103 24

O.C.G.A. §53-2-115(a). 24

Owens v. Oliver 97 S.E. 856. 21

Owens v. Oliver 97 S.E.856, 146 Ga. 675

(S.Ct.Ga. 1918). 20

Me Vv j t my

858 F.2d 775, 785 (ist Cir. 1988). 34

j Vv art 764

F.Supp. 1495 (S.D.Fla. 1991). aa, 33

j , 409 U.S. 38,

34 L.Ed.2d 47, 93 S.Ct. 30 (1972) 25

j Vv lor, 736 F.2d

at 1420. 38

| he » 188 §.E.354, 183 Ga. 282

(S.Ct.Ga. 1936. 20

» 37 S.E.2d 143, 200 Ga.405

(S.Ct.Ga. 1946). 20

Slade _v. Barber, 37 S.E.2d 143, 200 Ga.405

(S.Ct.Ga. 1946). 23

SUSIE DYER vs. 136.00 ACRES MORE OR LESS LAND

LYING AND BEING IN LAND LOT 221 OF THE 18TH

DISTRICT, iST SECTION, TOWNS COUNTY, GEORGIA

WITH MAILING ADDRESS ROUTE 2, BOX 472,

HIAWASSEE, GEORGIA, Civil Action File No. 94-

CV-40DB 7

Thornton v. Parker, 68 S.E.2d 695, 208 Ga. 633

(S.Ct .Ga.1952). 20

vii

.

’

134 Ga.App. 457, 214 S.E.2d 717 (1975). 17

U.S. v. One Parcel of Real Estate 831 F.Supp.

1578, at 1583 (S.D.Fla. 1993). 39

U.S. v. Fidelity Capital Corp, 920 F.2d 827

(11th Cir. 1991). 41

v ia 823 F.Supp. 994

(D.R.I. 1993). 47

U.S. v. James Daniel Good Real _ Property,

et.al., 62 L.W. 4013 (October 6, 1993). 25

Vv 77 fos , 946 F.2d. 30

(C.A.5, Tex. 1991) . a5 .::39

Vv ., 888 F.2d 1344

(11th Cir. 1991). i8

U.S. v. Premises, Real Property and Acreage,

831 F.Supp. 66 (N.D.N.Y. 1993). 25

U.S. v. Property at 4492 S. Livonia Rd.,

Livonia, 889 F.2d 1258 (2nd Cir. 1989. 27

U.8.C.A..2- 15

United Sates v. Jefferson County, 720 F.2d —

1511 (11th Cir. 1983). 3. 33

Vv , 965 F.2d

311 (7th Cir. 1992). 43, 44, 45

Vv 7 in County,

730 F.Supp. 423 (S.D.Fle 1989) 43

, re 7

730 F.Supp. at 427. 44

viii

—

United States v , 630

F.Supp. 1540 (E.D.Tex. 1986) ot ae

United states v. $38,000.00 in United States

Currency, 816 F.2d 1538, 1543

(226m Cir. 19867) . 28

j j Vv a ee ne

2464, 432 U.S. 385, 53 L.E.2d 423 (1977), reh

Gen. 98 S.Ct. 623, 434 U.S. 989, 54 L.E.2d 485,

99 S.Ct. 2869, 442 U.S.934, 61

L.E.2d 303, reh.den. 100 S.Ct. 196, 444 U.S.

890, 62 L.E.2d 127. (1977). 29

j Vv j , 911

F.2d 870 (2nd Cir. 1990). 36, 43

W. Fletcher, 3 Corporations §§ 790, 793

(1986). 45

Warren v. Federal Land Bank of Columbia. 157

ae, eee. aan 8.5.60. 33 A.LR. €8

(S.Ct.Ga. 1923). 23

Weyman v. Atlanta, 122 Ga. 539,

50 S.E.492. 21

Williamon _v. Williamon, 74 S.E.2d 71, 209

Ga.494 (S.Ct.Ga. 1953). 21

Willi Vv wear,

Division of Blue Bell, Inc., 164 Ga.App. 720,

297 S.E.2d 342 (1982) 17

ix

ITED ST F RI Vv 1 ACR

RE L

221i OF THE 2 va ' WN

e) Y EORGIA W MA NG ADDR R E

BOX 472, HIAWASSEE, GEORGIA, Civil No. 2:92-

CV-199-WCO, Order Granting Government's Motion

for Summary Judgment and forfeiting property

to the United States, and denying claimant's

motion for summary judgment (11th Cir., Jan.

18, 1994).

ITE TAT F R Vv 136. ACRE

RE OR BEIN N LOT

221 OF ~ N WN

CO Y R W ING AD R a

BOX 472, HIAWASSEE, GEORGIA, No. 94-8158, Order

Denying Susan (sic) Dyer's Motion to Intervene

as Claimant on Appeal (11th Cir., May 4, 1994).

Petiti Vv R R

LAND LYING AND BEIN N LOT 221 THE

18TH DISTRICT 1ST SECTION, TOWNS COUNTY,

GEORGIA WITH MAILING ADDRESS ROUTE 2, BOX 472,

HIAWASSEE, GEORGIA, Civil Action File No. 94-

CV-40DB, Memorandum of Hearing Delaying Ruling

on Ownership Issue (Superior Court, Towns

County, June 28, 1994).

3

JURISDICTION OF THE SUPREME COURT

The statutory provision on which the

jurisdiction of this Court is invoked is 21

U.S.C. § 881 (a) (7). Petitioner prays that a

writ of certiorari issue to review the judgment

of the United States Court of Appeals for the

Eleventh Circuit filed on May 4, 1994, denyinc

Petitioners motion to intervene as a claimant

on appeal and to stay the enforcement, UNITEL

STATES OF AMERICA vs. 136.00 ACRES MORE 0}

LESS, LAND 1 ING AND BEING IN LAND LOT 221 01

THE 18TH DISTRICT 1ST SECTION, TOWNS COUNTY

GEORGIA WITH MAILING ADDRESS ROUTE 2, BOX 472

HIAWASSEE, GEORGIA, No. 94-8158.’

1. Additional parties were Georgia Farm Credit, ACA

and Credit Bank of Columbia, claimants.

xii

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ee ee ee oer ae

CONSTITUTIONAL PROVISIONS AND STATUTES

U.S. Const. Amend xX. The powers not

delegated to the United States by the

Constitution, nor prohibited by it to the

States, are reserved to the States

respectively, or to the people.

U.S. Const. Amend. V. No person shall be

- . . Geprived of life, liberty, or property,

without due process of law; nor shall private

property be taken for public use without just

compensation.

U.S. Const. Article III, Paragraph 3.

The Congress shall have Power to declare

the Punishment of Treason, but no Attainder of

Treason shall work Corruption of Blood, or

Forfeiture except during the Life of the person

attainted.

Cc

. The following

Shall be subject to forfeiture to the United

States and no property right shall exist in

them: \

(7) All real property, including any

right, title, and interest (including any

leasehold interest) in the whole of any lot or

tract of land and any appurtenances or

improvements, which is used, or intended to be

used, in any matter or part, to commit, or to

facilitate the commission of, a violation of

this subchapter punishable by more than one

year's imprisonment, except that no property

Shall be forfeited under this paragraph, 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 or consent of that owner.

xiii

F iv

(a) (2) . . . when the applicant claims an

interest relating to the property or

transaction which is the subject of the action

and the applicant is so situated that the

disposing of the action may as a procedural

matter impair or impede the applicants ability

to protect that interest, unless that

applicant's interest is adequately protected

by the existing parties.

(b) Upon timely application anyone may be

permitted to intervene in an action . . . when

an applicant's claim or defense and the main

action have a question of law or fact in

common. ... In exercising its discretion the

court shall consider whether the intervention

will unduly delay or prejudice the adjudication

of the rights of the original parties.

A -2- 24

(a) A lapsed or void legacy or personal

property shall fall into the residuum and go

to the residuary legatee.

(b) Ordinarily, real estate described in

a lapsed or void devise shall descent to the

heir; but under a devise necessarily contingent

when the will was made, on failure tof the

contingency, the residuary legatee shall take.

O.C.G.A. §53-2-115 (a). 24

(a) Any person to whom an interest in

property is transferred, or who succeeds to an

interest in property by contract or by

operation of law, or any fiduciary acting on

behalf of such person may renounce in whole or

in part the succession to any property or

interest therein by filing a written instrument

within the time and at the place provided in

subsection (b) of this Code section. For

purposes of this Code section the term

"interest in property" includes any powers over

Xiv

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ee a eee et ee. Can 1) ee

BA inc ih tn ell ti Sie ct a i is MIEN

i”

eR nn in MON 3 cll

wae

eat.

or rights with respect to such property. The

instrument shall:

(1) Describe the property or part thereof

or interest therein renounced;

(2) Be signed by the person renouncing;

and

(3) Declare the renunciation and the

extent thereof.

O.C.G.A. §53-4-2. 21

The following rules shall determine how

are the heirs at law of a deceased person;

(1) Upon the death of the husband or wife

without lineal descendants, the surviving

Spouse is the sole heir and upon payment of

that deceased spouse's debts, if any, may take

possession of the estate without

administration;

(2) If, upon the death of the husband or

wife, there are children or representative s

of deceased children, the Surviving spouse

Shall have a child's part, unless the shares

exceed four in number, in which case the

Surviving spouse shall have one-fourth part of

the estate and the children shall have three-

fourths part of the estate; and the surviving

Spouse and children shall take per Capita but

the descendants of the children shall take per

Stirpes.

STATEMENT OF THE CASE

SUSIE DYER, Petitioner, known in Hiawassee

as "GRANNY SUSIE" is the widow and sole heir

to the residuary of the estate of PAUL DYER.

She resides at the FARM, Route 2, Box 472,

Hiawassee, GA 30546. The FARM is the subject

of a forfeiture action by the UNITED STATES

against its purported titleholder, Dyer's Trout

Farms, Inc. Petitioner prays for Certiorari

to overturn the final judgment rendered against

her when her Motion to Intervene on Appeal and

was denied by the 11th Circuit Court of Appeals

on May 4, 1994, and her Motion to Stay the

Enforcement was not reached. The forfeiture

was based on the alleged marijuana cultivation

by WILLIAM DYER, Petitioner's son.

DYER'S TROUT FARMS, INC. was incorporated

by PAUL DYER in 1976, to engage primarily in

the raising and selling of fish (rainbow trout)

and livestock (cattle). PAUL DYER transferred

the FARM to DYER'S TROUT FARM, INC. in 1978.

The only consideration for the transfer of the

farm to the CORPORATION was $10.00, and "good

and valuable consideration," i.e., stock.

The control of PAUL DYER, over the

CORPORATION was nearly absolute. He held

office indefinitely and was the only officer

who knew the corporations' finances. PAUL DYER

exclusively controlled the use of his residence

and the corporate property upon which it was

located.

PAUL DYER died on February 28, 1981,

leaving the residuary of his estate to

Petitioner as sole heir, and to the children

and grandchildren if she were to predecease

him. At the time of his death, PAUL DYER owned

52% of the stock in the corporation, and the

sons owned 16% each. PAUL DYER willed his

stock to WILLIAM DYER, but the transfer was

never recorded.

PAUL DYER did not leave the FARM to

WILLIAM DYER. At no time, past or present, did

WILLIAM DYER hold title to the FARM.

PAUL DYER's intent in giving the corporate

stock to WILLIAM DYER was that the farm remain

in the family. No shareholder could sell stock

without first offering it to the corporation

itself, then the other shareholders. It was

not to be disposed of freely.

PAUL DYER gave the stock to WILLIAM Dyer

because WILLIAM DYER had looked after the

farm's affairs during PAUL DYER's last illness.

He told him, "You're the best one to hold it

together."

The corporate entity was disregarded and

made a mere instrumentality for the transaction

of the families affairs; that there is such a

unity of interest and ownership that the

separate personality of the corporation and the

owners no longer exist.

This is the position taken by the UNITED STATES

in its forfeiture action against the Dyer

CORPORATION. Meetings were no more than

informal chats during family gatherings, and

minutes were not kept, nor filed with the

Secretary of State. There was no difference

between the running of the farm as a

corporation running it as a family-owned

proprietorship save for the filing of the

$25.00 annual fee.

On September 10, 1991, the defendant

property, hereinafter the FARM was raided by

the Georgia Bureau of Investigation and

marijuana plants were found. On June 22, 1992,

William Dyer was found guilty after a non-

contested trial of simple possession of less

than one ounce of marijuana.

On October 20, 1992, the UNITED STATES,

respondent in this action, moved for forfeiture

of the FARM based on the alleged manufacture

of marijuana by Petitioner's son, WILLIAM DYER.

The CORPORATION filed a timely claim and

answer. The UNITED STATES filed its Motion

for Summary Judgment on August 3, 1993, and the

Claimant filed a Response and its own Motion

for Summary Judgment on August 9, 1993.

Plaintiff argued that the innocent owner

defense should be denied because the

CORPORATION's President and majority

stockholder was growing marijuana on the

property.

On January 18, 1994, the U.S. District

Court for the Northern District of Georgia,

Chief Judge William C. O'Kelley, entered an

order granting the UNITED STATES’ summary

judgement and forfeiting the FARM, and denying

DYER'S TROUT FARMS, Inc., an innocent owner

defense under 21 U.S.C. § 881(a)(7). There was

no evidence that WILLIAM DYER's cultivation of

Marijuana was done as an agent of the

corporation, or in his capacity as its

President, or that the corporation benefited

from it. Rather, the Court reasoned that the

extent of his control and the amount of stock

owner by WILLIAM DYER permitted his knowledge

to be imputed to that corporation. The

CORPORATION filed its notice of appeal on

February 4, 1994 and requested a Stay of

Enforcement.

Petitioner, however, was not aware that

the corporation was not, and had never been,

a lawful entity separate and distinct from its

shareholders. On February 22, 1994, her

granddaughter DARLENE PALMER explained to her

the basis for the opinion of the Honorable

William C. O'Kelley of January 18, 1994.

Petitioner is the true owner of the FARM.

However, she did not realize that she had

Standing to contest its forfeiture until her

granddaughter, DARLENE PALMER, discussed the

January 18, 1994 ORVER with Attorney Nancy

Lord. Her valid ownership of the FARM, and her

lack of notice as to this standing, entitled.

her to intervene in the forfeiture proceedings

on appeal.

Upon learning of the defects in the

corporation, Petitioner has learned that she

holds complete equitable title to the FARM.

On March 3, 1994, she filed a Motion to

Intervene as Claimant on Appeal, under F.R.C.P.

24(a) (2) and 24(b), in the alternative, a

Motion to Stay Enforcement to permit Towns

County to determine issues of ownership, and

a Claim and Answer. Simultaneously, Petitioner

filed a Petition to Quiet Title in the Towns

County Superior Court, SUSIE DYER vs. 136.00

ACRES MORE OR LESS LAND LYING AND BEING IN LAND

LOT 221 OF THE 18TH DISTRICT, 1ST SECTION,

TOWNS COUNTY, GEORGIA WITH MAILING ADDRESS

ROUTE 2, BOX 472, HIAWASSEE, GEORGIA, Civil

Action File No. 94-CV-40DB, and a Lis Pendens.

She filed suit to cancel the deed of 1978 to

a void corporation, clear title, and restore

the property known as the FARM to its rightful

owner, Petitioner.

The District Court correctly treated the

CORPORATION as a non-existent entity, reasoning

that was tantamount to veil piercing.

Petitioner agrees with the District Court that

the CORPORATION was not a valid, separate

entity. She points out however, that corporate

formalities were not maintained by PAUL DYER

either, and that the CORPORATION was void ab

initio. Petitioner filed her Motion to

Intervene on March 3, 1994, arguing that if the

CORPORATION was not valid, neither was the 1978

transfer of the FARM.

The FARM never left the estate of PAUL

DYER, or which Petitioner is the sole heir and

beneficiary to the residuary. Her property

interested vested upon her late husband's death

in 1981. To obtain the proper State Court

determination of her property ownership

interest, Petitioner also filed a Motion for

a Stay of Enforcement on March 3, 1994, along

with appropriate State Court filings. The

Motion to Intervene was denied on May 4, 1994

and the issue of the Stay was not reached.

The State Court action is still pending.

The UNITED STATES filed a Motion of

Opposition to Petitioner's Motion to Intervene

on March 22, 1993, arguing that she failed to

file a claim in a timely manner. Petitioner's

Motion to Intervene was denied on May 4, 1994.

On March 9, 1993, the UNITED STATES filed

a Motion to Dismiss the Towns County case on

the grounds that the UNITED STATES held title

to the property, necessitating that any quiet

title action be filed under 28 U.S.C. § 2409a.

This statute is inapplicable to forfeiture.

The UNITED STATES failed to timely answer

Petitioner's Petition, and Petitioner moved for

a Default judgment on May 3, 1994. A number

of responsive pleadings were filed by the

UNITED STATES, Petitioner, and DYER's TROUT

FARMS .

The Dyer family is well-known = and

respected in Hiawassee, Georgia. Two of the

Judges in Town's County were disqualified to

avoid the appearance of impropriety. A Senior

Judge from Fulton County, Hon. John S. Langford

was appointed as a visiting Judge and presided

at a hearing on the pending motions on June 28,

1994. Judge Langford decided to make no ruling

on the pending motions in the Towns County case

until the decision of the 11th Circuit on the

appeal by DYER's TROUT FARMS is rendered.

10

ARGUMENT AND LEGAL AUTHORITY

I. DENIAL OF INTERVENTION AS CLAIMANT ON APPEAL

VIOLATED THE TENTH AMENDMENT WHERE PETITIONER

WAS ENTITLED TO A STATE COURT JURY TRIAL TO

DETERMINE ISSUES OF OWNERSHIP.

A. In a Forfeiture Action, the Question

© Whet) - Individual

Owns the Property is for the Jury.

A jury may find that, even where deeds

name a corporation as the owner of real estate,

the real owner is an individual. United States

v. D.K.G. Appaloosas, Inc., 630 F.Supp. 1540

(E.D.Tex. 1986). That case shares a key

feature with the one at bar: due to an unusual

set of circumstances, it was the government,

rather than the claimants, who sought to affirm

a purported corporate ownership of real

property in a forfeiture action. Id. Bruce

Emery Griffin admitted that he had purchased

the D.K.G. ranch with the proceeds of drug

dealings. However, in a pre-plea agreement in

another District, the Southern District of

11

Florida, the UNITED STATES had agreed not to

impose any further civil sanctions on him.

Id., at 1546. After the institution of the

forfeiture in Texas, the Florida judge ruled

that any property owned by Griffin and known

to the Unites States Attorney at the time of

the pre-plea agreement was protected from

forfeiture. Id., at 1550. Hence, only if the

corporation, D.K.G. Ranch, Inc., was the valid

owner, could the property be forfeited. Asa

result, a Texas jury was charged to consider

the question of ownership. The jury determined

that the owner was Griffin and his wife. They

were allowed to reclaim the ranch and the

government moved to alter, amend or set aside

the judgment, or in the alternative grant a new

trial. The District Court held:

"(E)ven if the verdict was contrary to the

weight of the evidence, and it clearly was

not, the claimants would be entitled to

a judgment in their favor. This is true

because even if the corporations did own

legal title, the evidence supported

12

finding an equitable ownership interest

in the Griffin's favor."

ni , nc., 630

F.Supp. at 1567.

The property was protected from forfeiture even

though titled to a corporation, when the facts

indicated that the individuals were the true

owners.

To resolve the issue of ownership of the

farm, simultaneous filings in State Court and

the Motion to Intervene in Federal court was

appropriate. Intervention in a federal action

in order that a state action proceed

expeditiously was attempted in Banco Popular

de Puerto Rico v. Greenblatt 964 F.2d 1227 (1st

Cir. 1988). A creditors committee sued the

directors of bankrupt Amfesco in New York state

court while one of its members, Banco Popular,

sued in the United States District Court for

the District of Puerto Rico. The motion to

intervene was filed, late in the proceedings,

13

by the committee in hopes of overturning a

protective order. The appeal of that denial

was denied because the motion, in that case,

was filed nearly one years after the protective

order was entered, by a party whose member was

a party to the federal action. Banco Popular

v. Greenblatt, 964 F.2d 1227 at 1229. The

court also reasoned that the same materials

could be made available through other channels.

16.4 @&: 1234:

That is not the case here. Petitioner

will have no recourse outside of the

intervention save for a separate suit, after

the FARM is forfeited, under the Tucker Act.

The 11th Circuit, in denying Petitioner her

Opportunity to intervene on appeal and the

consequent stay, denied her the opportunity to

assert her ownership interests before any jury,

state or federal. By denying her the chance

for a State determination of these issues under

14

Georgia law, a Tenth Amendment violation

occurred. U.S.C.A. X.

B. Petitioner is Entitled to a State Jury

rial on n

In a drug forfeiture, the owners interest

is defined by State law, rather than federal

law. U.S. v._1977 Porsche Carrera, 946 F.2d.

30 (C.A.5, Tex. 1991). The question of title

and possession of real estate must be decided

under state law in state court if no federal

or constitutional question is involved. Lucas

v. Hope, 515 £.2D 234 (5th cir. 1975) Reh.Den.

523 F.2D 1055, cert.Den. 96 S.Ct. 1464, 424

U.S. 967, 47 L.E.2D 734.

The validity of the title rests upon both

the validity of the CORPORATION and validity

of the deed. These are state issues. The

UNITED STATES' claim, if any, must be derived

from that of the CORPORATION which must be

determined in state Court, under state law, and

by a jury trial. Title to land is determined

by state courts. The Tenth Article im

Amendment of the U.S. Constitution forbids the

United States District Court to usurp this

state authority.

Petitioner is entitled to a state jury

trial. A prior pending federal action with the

Same parties, facts, and cause of action is not

a bar to state action by the same plaintiff vs.

The same defendant. While the trial court may

chose to stay judgment until the disposition

of the federal action, outright dismissal is

inappropriate. Fludd v. Tiller, 184 Ga.App.

93, 360 S.E.2nd 647 (C.A.Ga. 1987). Here, the

only federal question is the innocent owner

defense, and that has already been decided

against the corporation and assailing its

validity.

C. Georgia Law Requires that the Corporate

16

The owners interest is defined by State

law, rather than federal law, in a drug

forfeiture. U.S. v. 1977 Porsche Carrera, 946

F.2d. 30 (C.A.5, Tex. 1991).

Georgia courts will disregard corporate

fiction where corporate entity is a mere

alter-ego or business conduit

of an individual. It must be

shown that the shareholders:

"disregarded of the corporate entity and

made it a mere instrumentality for the

transaction of their own affairs; that

there is such a unity of interest and

ownership that the separate personality

of the corporation and the owners no

longer exist and [that] to adhere to the

doctrine of corporate entity would promote

injustice or protect fraud."

Federal Deposit Insurance Corp. v. U.S. 654

F.Supp 794 (N.D.Ga. 1986) citing Farmers

Warehouse of Pelham v. Collins, 220 Ga. 141,

137 S.E.2d 619 (1964); Williams Plaza, Inc. v.

Sedgefield Sportswear, Division of Blue Bell,

Inc., 164 Ga.App. 720, 297 S.E.2d 342 (1982);

I niver rofi nc., 6 B.R. 196, 201

(N.D.Ga. 1980); Trans-American Communications,

Inc. v. Nolle, 134 Ga.App. 457, 214 S.E.2d 717

17

(1975). Marett v. Professional Insurance

Careers, 410 S.E.2d 373, 201 Ga.App. 178.

Other factors indicating that a corporate

entity is an alter ego are the commingling of

an individual's property, business, or personal

affairs with that of the corporation, or that

of the corporation with the individuals.

Stillman v. Tempo Carpets, 174 Ga.App. 66, 329

S.E.2d 197 (1985); U.S. v. Fidelity Capital

Corp., 888 F.2d 1344 (11th Cir. 1991) (Georgia

law requires owner abused corporate form,

disregarded it, commingled assets, failed to

maintain separate records).

All of these factors are found in the

instant case. Whether run by PAUL DYER or

WILLIAM DYER, the corporation was disregarded

in the day to day running of the farm. It

owned not only farm property, but’ the

residences lived in by various family members,

and their furniture. It repaired vehicles that

were driven by the family. Conversely, family

members frequently made corporate purchases out

of their personal funds and were later

reimbursed. Meetings were no more than

informal chats during family gatherings, and

minutes were not kept, nor filed with the

Secretary of State. Even the transfer of stock

from PAUL DYER to WILLIAM DYER was not formally

recorded. Davis v. Davis, 419 S.E.2d 913, 262

Ga. 420 (1991).

In effect, there was no difference between

the running of the farm as a _ corporation

running it as a family-owned proprietorship

save for the filing of the $25.00 annual fee.

The corporate entity was disregarded and made

a mere instrumentality for the transaction of

the families affairs; that there is such a

unity of interest and ownership that the

separate personality of the corporation and the

owners no longer exist.

19

ee ee ee ee Pe Oe Sa Se eee ne ee

D. The Deed of 1978 is not Valid

A valid conveyance of land requires that

the grantee must be a valid legal entity,

capable of taking. A conveyance to a non-

existent party is prima facie void. McCollum

v. Loveless, 196 S.E.430, 432, 185 Ga. 748

(S.Ct.Ga. 1938). The question of whether a

deed is valid is one for the jury and

Petitioner is entitled to a jury trial on that

issue. Thornton v. Parker, 68 S.E.2d 695, 208

Ga. 633 (S.Ct.Ga.1952).

The right of an heir to maintain a suit

to cancel an invalid deed and restore title to

land is ancient. Qwens v. Oliver 97 S.E.856,

146 Ga. 675 (S.Ct.Ga. 1918); Sharp v. Autry,

188 S.E.354, 183 Ga. 282 (S.Ct.Ga. 1936);

Slade _ v. Barber, 37 S.E.2d 143, 200 Ga.405

(S.Ct.Ga. 1946). Heirs may sue to clear title,

City of Griffin v, McKneely, 115 S.E.2d 463,

101 Ga.App. 811 (Ct.App. 1960), and enjoin

20

disposition of the property, McGehee v. Pope,

105 S.E.2nd 26 (S.Ct.Ga. 1928). To recover,

the heir must appear to be in possession of the

land. McCullen_v. Cooper, 125 Ga. 435, 54

S.E.97; Weyman _v. Atlanta, 122 Ga. 539, 50

S.E.492.

The allegation that the petitioner is

widow and sole heir to the residuary is

sufficient to entitle the petitioner to

Maintain suit to recover real property.

Willi v. Wi » 1% 28.26 Fh; 200

Ga.494 (S.Ct.Ga. 1953), 0O.C.G.A. §53-4-2.

Here, Petitioner has demonstrated that she is

the widow and sole heir to the residuary clause

of the will.

This action is not barred by laches. Gary

v. Radford, 59 S.,E.2 915, 207 Ga. 38 (S.Ct.Ga.

1950); Qwens v. Oliver 97 S.E. 856. In Qwens

the conveyance was made by the deceased in 1906

to pay a debt, and the action was maintained

21

by the petitioner in 1915 when that debt had

since been paid out of rents and profits.

While sixteen years have passed since this deed

was made, the actual FARM has always remained

in the possession of Petitioner and her family.

Nothing was done differently than it would have

had the legal as well as equitable title passed

to Petitioner upon PAUL DYER's death. To

restore legal title to the rightful owner,

Petitioner, at the expense of the fictive

CORPORATION, even at this late date, will not

prejudice the rights of anyone.

the Estate

In the Opinion of the District Court,

WILLIAM DYER's "total control" was used to

reach through the corporation and allow the

UNITED STATES to forfeit the land, as though

it belonged to WILLIAM DYER. But it never did.

WILLIAM DYER never held title to the FARM. The

22

FARM belonged to his late father, PAUL DYER,

Since 1938, and was deeded to the CORPORATION

in 1978. That conveyance was invalid.

The FARM remained part the residuary of

the estate of PAUL DYER. Upon the death of an

owner of an estate in realty which estate

survives him, title vests immediately in the

heirs. Slade v. Barber, 37 S.E.2d 143, 200

Ga.405 (S.Ct.Ga. 1946). Realty descends

directly to one's heirs, subject to being

administered by legal representative for the

purpose of paying debts. W Vv 1

Ban f ia. 157 Ga. 464, 468, 122

S.E.40, 33 A.L.R. 45 (S.Ct.Ga. 1923.

As the sole heir to the residuary,

Petitioner is the beneficiary of the farm.

There is no justification for a determination

that the FARM itself passed to WILLIAM DYER

upon the death of PAUL DYER.

The legacy of stock to WILLIAM DYER does

not equate with a legacy of the FARM. The

transfer of stock in an a fictive CORPORATION

to WILLIAM DYER in 1981 is a void legacy,

O.C.G.A. §53-2-104. Even where a renunciation

by a legatee resulted in unexpected assets in

the residuary, the transfer of corporate stock

under the residuary clause was held to be

testamentary. Brown v. Momar, Inc., 411 S.E.2d

718, 201 Ga.App. 542 (Ga.App. 1991), O.C.G.A.

§53-2-115(a). Here, where the invalidity of

the corporation makes the deed to that

corporation invalid, the land remained in the

residuary. Remaining in the residuary, the

ownership of the farm vested in Petitioner upon

her husband's death in 1981 and she is entitled

to standing to contest the forfeiture as an

innocent owner. 21 U.S.C. § 881 (a) (7).

II. DENIAL OF INTERVENTION DEPRIVED PETITIONER

OF DUE PROCESS BECAUSE SHE HAD NO PRIOR NOTICE

OF HER OWN STANDING TO CONTEST THE FORFEITURE

AND ANY NOTICE OF THE FORFEITURE ITSELF WAS

MEANINGLESS

24

A. Due Process Requires that Petitioner

Be Apprised of Her Standing to Contest

For a forfeiture to comply with the

requirements of due process, notice must be

reasonably calculated to apprise interested

parties of the pendency of the action.

Robinson v. Hanrahan, 409 U.S. 38, 34 L.Ed.2d

47, 93 S.Ct. 30 (1972); U.S. v. James Daniel

Good Real Property, et.al., 62 L.W. 4013

(October 6, 1993). It is now well established

that "the right to notice and an opportunity

to be heard 'must be granted at a meaningful

time and in a meaningful manner.'" U.S. v.

Premises, Real Property and Acreage, 831

F.Supp. 66 (N.D.N.Y. 1993) quoting Fuentes v.

Shevin 407 U.S. 67, 80, 92 S.Ct. 1983, 1994,

32 L.Ed.2d 556 (1972), (quoting, Armstrong v.

Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191,

14 L.Ed.2d 62 (1965).

25

Petitioner does not maintain that she did

not know that a forfeiture action was pending.

However, she was completely unaware that her

Status as widow and sole beneficiary to PAUL

DYER's estate gave her standing to contest the

forfeiture. Petitioner believed that her

interests were being protected by the

CORPORATION, which lacked the separate identity

to do so. Ri Vv

Greenblatt 964 F.2d 1227.

The UNITED STATES, however, was well aware

of the defects in the CORPORATION through which

it now asserts its interest in the property.

In fact, the UNITED STATES exploited those very

defects to litigate its forfeiture of the

property, and was fully cognizant that the

United States District Court vigorously

assailed the validity of the CORPORATION. The

UNITED STATES, through its forfeiture action,

seeks to seize the property rights of the

26

CORPORATION. But, by the very nature of its

pleadings against the CORPORATION's innocent

‘owner defense, it has acknowledged the

invalidity of the CORPORATION. However, at

no time did the UNITED STATES inform Petitioner

that should the CORPORATION be found to be

invalid, she could assert her claim

individually.

In it's opposition to her motion to

intervene, the government asserted that

Petitioner lacked standing because she failed

to file a timely claim and answer. However,

the Circuit Court had jurisdiction despite

Petitioner's lack of statutory standing because

she had Article III standing, "which requires

the claimant to demonstrate a sufficient

interest in the property to create a 'case or

controversy' in the constitutional sense."

Vv r r iv

Livonia, 889 F.2d 1258 (2nd Cir. 1989, citing

27

Currency, 816 F.2d 1538, 1543 (11th Cir. 1987).

Petitioner made a sufficient showing of

interest in the property through filing of her

Motion to Intervene and Motion to Stay

Enforcement, with accompanying briefs and a

Claim and answer, that her technical non-

compliance with the procedural rules should

have been excused.

Petitioner did not assert a claim during

the initial forfeiture proceedings because she

was unaware that she had a claim prior to the

time the validity of the CORPORATION was

assailed by the opinion of the DISTRICT COURT

On January 18, 1994, discussed by her and

attorney on February 22, 1994. Her Motion to

Intervene was filed with all haste, on March

3, 1994.

Because of the short delay, which the

UNITED STATES claims to be untimely, it wishes

to snuff out GRANNY SUSIE's fifty years’

ownership on a procedural technicality. This

would be an outrageous abuse of a lone

citizen's rights. To hold an eighty year old

woman, lacking a formal education, and naive

in the law, to standards that would challenge

even the most learned of counsel, is a

miscarriage of justice. This is a perfect

illustration of the truth of Seneca's

observation: "the more numerous the laws, the

more oppressive the state."

B. Merits of Intervention

The right to post-judgment intervention

is well established. United Airlines, Inc. v.

McDonald, 97 S.Ct. 2464, 432 U.S. 385, 53

L.E.2d 423 (1977), reh den. 98 S.Ct. 623, 434

U.S. 989, 54 L.E.2d 485, cert. den. 99 S.Ct.

2869, 442 U.S.934, 61 L.E.2d 303, reh.den. 100

S.Ct. 196, 444 U.S. 890, 62 L.E.2d 127. (1977).

The facts of this case make that strong

showing, and there is no tendency to prejudice

the other parties. F.R.C.P. 24 (a) (2) demands

intervention when the applicant claims an

interest relating to the property or

transaction which is the subject of the action

and the applicant is so situated that the

disposing of the action may as a procedural

matter impair or impede the applicants ability

to protect that interestr, unless that

applicant's interest is adequately protected

by the existing parties. F.R.C.P. 24 (a) (2).

Jurisdiction passes to the Court of Appeals

once a notice of appeal is filed. Miller v.

United States, 114 F.2d 267, 269 (7th Cir.

1940), cert. denied 313 U.S. 591, 61 S.Ct.

1114, 85 L.Ed.1545 (1941).

Like McDonald, Petitioner has learned only

during appellate proceedings that her rights

were not being protected by existing parties.

of possible prejudice to petitioner and other

petitioners similarly situated" that the facts

require intervention. Hurd v. Illinois Bell

Telephone co. 234 F.2d 942 (7th Cir. 1956).

C. Applicable Factors

Petitioner asks this Court to apply the

four-part test in the 11th Circuit for non-

statutory intervention of right: 1) timeliness;

(2) a sufficient interest; (3) impairment of

that interest absent intervention; and (4)

inadequate representation by the parties.

Resort Timeshare Resales, Inc. v. Stuart 764

F.Supp. 1495 (S.D.Fla. 1991). The standard is

more lenient under 24(a) than 24 (b), Resort

v. Stuart, 764 F.Supp. at 1497. See _ also,

Nevilles v. E.B.0.€. 511 F.2d. 303, 305

(C.A.Mo. 1975).

1. Timeliness

"There is no bright-line rule delineating

when a motion to intervene is or is not

timeous. Instead, courts must decide the

question on a case by case basis,

32

United States v. Jefferson County, 720 F.2d

1511 (11th Cir. 1983). She had believed that

the CORPORATION, DYER'S TROUT FARMS, INC., was

a valid entity, separate from its shareholders

which would hold and maintain the FARM that was

her families heritage through the passing of

time for many generations to come.

Unfortunately, Petitioner has recently learned

that that is not the case.

Petitioner, as widow and sole heir to the

residuary of the estate, and matriarch of the

DYER family, must be allowed to intervene to

protect the rights of her family. She, not the

fictive CORPORATION, is the appropriate party

to protect these rights against the pending

forfeiture of the family homestead by the

UNITED STATES. The CORPORATION is incapable

of protecting those rights, as it is not even

a valid separate entity. To proceed without

Petitioner would be "so fraught with elements

31

examining the totality of the relevant

circumstances."

Banco Popular de Puerto Rico v. Greenblatt 964

F.2d 1227 at 1230 (1st Cir. 1992)

Timeliness is determined from all the

circumstances: the period of time during which

the intervenor knew or reasonably should have

known of his interest; prejudice to existing

parties resulting from failure to move

promptly; prejudice to would-be intervenor if

his motion is denied; and unusual

circumstances. Resort v. Stuart, supra., at

1496-7. Delay alone is insufficient to mandate

Genial of intervention of right. Meyer v.

Macmillan Publishing Co., Inc. 85 F.R.D, 149,

150 (D.C.N.Y. 1980).

Mere knowledge of the pendency of an

action without appreciation of potential

adverse effect adjudication of that action

might have on ones interest does not preclude

33

intervention. U.S. v. Jefferson City, 720 F.2d

1511, reh.den. 724 F.2d 978.

"While knowledge of the existence of

litigation, simpliciter, does not

invariably trigger one’ obligation to seek

intervention, the count begins no later

than the time ‘when intervenor became

aware that its interest in the case would

not longer be adequately protected by the

[existing] parties.'"

Banco Popular de Puerto Rico v. Greenblatt 964

F.2d 1227 at 1231, quoting, Public Citizen v.

Liggett Group, Inc., 858 F.2d 775, 785 (1st

Cir. 1988).

The reason for. the delay is that

Petitioner was unaware of her interest until

February 22, 1994. Petitioner moved promptly

to intervene once she _ learned that her

interests could not be protected by the invalid

corporation, and her motion was not untimely.

To delay the proceedings long enough to

allow Petitioner to obtain her rightful state

law determination, in state court, will

prejudice nobody, least the UNITED STATES. In

34

the event that she does not prevail, the UNITED

STATES can proceed in this action with a clear

determination that the CORPORATION is a valid,

separate entity. Continuation of this

proceeding without the intervention by

Petitioner, will prejudice all parties,

including the UNITED STATES. In the event that

the UNITED STATES prevails in this action, and

Petitioner prevails in State Court, the UNITED

STATES could be liable to her for any damage

to the property while it was held by the UNITED

STATES.

The proceedings have gone so far as to

assail the validity of the CORPORATION. The

CORPORATION will not be prejudiced by having

the issues of its validity, the validity of the

1978 deed, and the ownership of the FARM

determined in State Court.

Should this action proceed without the

intervention by Petitioner, she will be

35

Dib SAIL DES ENT SS A TA EE ORT DSS

prejudiced and will lose the FARM which

comprised the estate and life's work of her

late husband, PAUL DYER. Once she loses the

actual possession of the FARM, it will be

extremely difficult to protect her own and her

family's rights.

The circumstances of this action are

exceptional. The innocent owner defense has

been denied to a corporation in the 2nd

Circuit. United States v. 14lst Street

Corporation, 911 F.2d 870 (2nd Cir. 1990) But

in that case, the property in question was

bought by the corporation while in control of

the wrongdoer, who was well aware of the drug

dealing that pervaded the building. If the

corporation were found to be invalid, the

property would be owned by the wrongdoer

himself. Here, the property was granted to

36

the corporation by an innocent owner, PAUL

DYER, without consideration and without

knowledge owner that the corporate form was

assailable. A deed from a person to a fictive

corporation which he owns and controls is no

more than a deed to oneself and is not valid.

2. Sufficiency of Interest

Petitioner, as widow and sole heir to the

residuary of the estate of PAUL DYER holds

equitable title to the FARM currently titled

to DYER'S TROUT FARMS, INC. The instant case

is a forfeiture action instituted by the UNITED

STATES against this property, for the purported

growing of marijuana on a small portion of the

land.

Her interest lies both as widow and heir,

and as the matriarch of an extended family

including six children, nine grandchildren,

and great-grandchildren. This FARM is their

heritage, their homeland, and their rightful

37

property. It will be lost, not only to

Petitioner, but to all future generations of

her offspring, if this forfeiture action

proceeds in her absence. U.S. Const art. 3,

See (23 5Cl. 3;

Petitioner has an interest in this action

within the meaning of Rule 24 (a) (2). Sanguine

Vv. U.S. Interior, 736 F.2d at 1420.

3. Impairment of Interest

The loss of her family farm, the estate

She intends to leave to her grandchildren is

no less than the loss of her family's heritage,

homeland and rightful property. If Petitioner

is not permitted to intervene, the fate of all

that she and her husband worked for will be

left in the hands of a fictive CORPORATION.

4. Inadequacy of Representation

The burden of showing inadequate

representation is minimal. Sanguine, Ltd. v.

U.S. Interior, 7236 F.2d at 1419. [Citations

38

Omitted]. Petitioner cannot rely on the

fictive corporation, DYER'S TROUT FARMS, INC.,

to protect her interest. The CORPORATION seeks

to hold title to the FARM itself. It has

demonstrated an inability to protect even its

own title by the Opinion of Judge William C.

O'Kelley of January 18, 1994.

III. DENIAL OF THE INNOCENT OWNER DEFENSE

ASSAILED THE VALIDITY OF THE CORPORATION

The innocent owner test in § 881(a) (7)

standard for determining innocent ownership

varies amongst the Circuits. Some require a

claimant to demonstrate either a lack of

knowledge or a lack of consent, while the other

school of thought applies a conjunctive test.

U.S. v. One Parcel] of Real Estate 831 F.Supp.

1578, at 1583 (8.D.Fla. 1993). Here, no

allegation has been made that Petitioner either

knew or consented to the use of the property

for illegal purposes. The knowledge of the

39

CORPORATION, however, is the issue now under

appeal in the 1lith Circuit. Petitioner

maintains that the denial of the innocent owner

defense is tantamount to a declaration that the

corporation is not a valid separate entity.

"When any corporation owns property, the

ownership of such property cannot be

attributed to the shareholders

individually without assailing the

validity of the corporation directly."

in re Davis, 16 B.R. 553, 554 (U.S.Bank.Ct.,

S.D.Fla. 1981). Here, the District Court has

melded the identities of the CORPORATION and

WILLIAM DYER, and pierced the corporate veil

in spirit if not in words.

As a viable corporation, the CORPORATION

would have been entitled to an "innocent owner"

defense under Georgia law because under Georgia

law, principles of agency apply to corporations

and their officers. Gift Collection Ltd., v.

Small Business Administration, 738 F.Supp. 487

(N.D.Ga. 1989). A corporation and its

shareholders and officers are separate, even

if one person owns all of its shares and

controls its actions. U.S. v. Fidelity Capital

Care, -920° ¥.20 .027:-(140h Cic«: 299i). The

corporation is not bound by the acts of the

owner as an individual and the owner is not

bound by corporate acts, even though the

individual may dictate every corporate

decision. Fidelity, 920 F.2d at 830. A person

may Own all of the stock in a corporation and

the shareholder and the corporation would, in

law, remain two separate and distinct persons.

Jenkins v Judith Sales Int'l], Inc., 332 S.E.2d

687, 175 Ga.App. 171 (1984),

Had these principles of Georgia agency law

been applied, the innocence of the CORPORATION

would depend on whether the marijuana was

alleged to have been grown by WILLIAM DYER as

an individual, or as an agent of the

CORPORATION. Such an analysis would demand

41

that the ‘innocent owner defense apply, as

Clearly illegal marijuana manufacture is ultra

vires.

Instead, the denial of the innocent owner

defense was based on the extent of control of

the corporation by WILLIAM DYER, citing many

of the factors normally used to disregard the

corporate entity:

"(William Dyer's] control over. the

Claimant corporation is nearly absolute.

He holds his office indefinitely and is

the only officer who knows the

corporation's finances. William

exclusively controlled the use of his

residence and the corporate property upon

which it is located.

Wiliiams’ near total control over the

imputed a oxation.—his—knowledce is

corporation is therefore not an innocent

owner."

Opinion, Hon. William c. O'Kelley, January 18,

1994 [Emphasis added]

This case was compared to those of other

corporate owners on the basis, not of

principles of agency law, but upon the quantity

42

of corporate stock owned by the alleged

wrongdoer. Compare United Siates v. One Parcel

of Land, 965 F.2d 311 (7th Cir. 1992), (1/3

ownership by wrongdoer) and United States v.

4657 Acres in Martin County, 730 F.Supp. 423

(S.D.Fla. 1989) (.31% shareholder, not an agent)

with United States v. 141st Street Corporation,

911 F.2d 870 (president and principal

stockholder). The decision as to the innocence

of this corporation appears to be determined,

not by agency or traditional concepts of veil

piercing but by a new hybrid: whether the

wrongdoer owned or controlled enough stock to

justify seizing the corporations assets as

though they were the individual's. Jenkins v.

Judith Sales, 332 S.E.2d 687 (Corporate fiction

will be disregarded where a party has

overextended his privilege in use of the

corporate entity in order to defeat justice,

perpetrate fraud or evade a contract or tort

43

responsibility); Kelly v. Austell Building

Supply, 297 S.E.2d 292, 164 Ga.App. 322 (1982).

A closer look at the forfeiture cases

involving corporate ownership, however, that

they were determined based on traditional

agency principles, not on the extent of control

and ownership. In U.S. v. 4,657 Acres, the

-31% shareholder landed a plane in a drug

transaction on the defendant property. The

court held:

"(I]t is arguable that John G. Tucker, Jr.

was acting within the scope of his

employment when he allowed the plane to

land on the Defendant property, it is

undisputed that John G. Tucker, Jr. was

not acting to benefit G.H. Tucker, Inc.

when he permitted illegal activity to take

place on the business property, since G.H.

Tucker, Inc. had nothing to gain by the

narcotics transaction. Therefore, this

Court finds that John G. Tucker's

knowledge and consent to the illegal

activity

inc.

730 F.Supp. at 427. In U,3, v. One Parcel of

Land 965 F.2d at 311, the wrongdoer was, like

44

WILLIAM DYER, a one-third owner of the

corporation. Harry R. Seymer, III was the son

of the remaining stockholders. In U¥.§. v One

Parcel, Harry's knowledge was not imputed to

the corporation.

"As a legal fiction, a corporation cannot

'know' like an individual 'knows.' We

treat corporations as separate legal

entities and enable them to own property

and enter contracts by relying on agency

precepts. A corporation and its agents

relate to one another like a principal to

its agents. A corporation acts through

its agents. Similarly, a corporation

‘knows through its agents. .. . However,

where an agent obtains knowledge while

acting outside the scope of his agency,

the standard resumption is unfounded, and

the court will not impute the agent's

knowledge to the corporation."

Id., citing W. Fletcher, 3 Corporations §§

790, 793 (1986).

"In any event, the knowledge that a

corporate agent acquires while not acting

at least in part with the intent to

benefit the corporation is not imputed to

the corporation."

} Se wee B

In the instant case of a family estate

held by a corporation, denial of the innocent

45

owner defense is tantamount to veil piercing

and should be treated as such. By denying the

innocence of the corporation, the District

Court has found a unity of interest and

ownership, and that separate personalities no

longer exist. In short, the CORPORATION can

be innocent and an owner or neither, but it

cannot be one without the other.

IV. FORFEITURE VIOLATES U.S. CONSTITUTION ART.

3, SEC. 3.

Asset forfeiture is an unconstitutional

violation of U.S.C.A. Art. 3, Sec. 3 when the

UNITED STATES seizes a farm that was intended

to be passed down to subsequent generations.

As the matriarch of her large extended family,

she has standing to assert the rights of the

nine grandchildren who are the heirs of PAUL

DYER.

46

Abuses of the bill of attainder by the

English monarchy led the Framers of our

Constitution to limit the application of

criminal forfeiture. Thus Article III. Section

3 prohibits forfeiture as a penalty for treason

except during the life of the person attained. |

In 1790, the First Congress extended that

prohibition by eliminating forfeiture of one'

estate and corruption of blood as penalties for

all felonies. Act of April 30, 1790, Ch.9, 24,

1 Statutes at Large. cited in U.S. Vv.

Saccoccia 823 F.Supp. 994 (D.R.I. 1993).

Forfeiture, even for the crime of treason,

was not to be implemented such that one's heirs

would be deprived of their inheritance. The

facts of Saccoccia did not mandate the denial

of forfeiture since the assets were not realty,

but cash proceeds. *™ this case however,

the UNITED STATES has seized the family

homestead of an extended family. It was

47

intended that it be inherited, by not only the

generation including the alleged wrongdoer but

the next -- Petitioner's grandchildren.

Moreover, the alleged wrongdoer never held

title to the property.

Forfeiture in this case should be denied

as an unconstitutional violation of Art. 3;

Section 3 of the U.S. Constitution.

48

REASONS FOR GRANTING CERTIORARI

Petitioner is a life-long resident of

Towns County and the State of Georgia. She

hopes that her rights to keep the land left to

her by her late husband will be protected by

the State of which she has always been a proud

citizen. GRANNY SUSIE asks that the State of

Georgia be allowed to assert its own rights and

not be deprived by the UNITED STATES of the

right to make the state law determination to

which Petitioner is entitled.

The due process rights of Petitioner were

violated when she was denied the opportunity

to intervene on appeal so that she might obtain

a valid state court determination of her

property rights. Petitioner had no notice that

she had standing to contest the forfeiture

until the validity of the CORPORATION was

assailed by the Order of the District Court on

January 18, 1994 and she had a chance to

49

discuss this with an attorney. Under these

exceptional circumstances, a motion to

intervene should have been granted and

Certiorari is the appropriate remedy.

Dated this 30 aay of July, 1994.

Mrs. Susie Dyer :

Pro Se

Route 2, Box 472

Hiawassee, GA 30546

706-896-3069

50

I F RVICE

I hereby certify that a copy of the

foregoing PETITION FOR

CERTIORARI, was mailed, first class, postage

prepaid, this 30 day of Sule /4e4 to:

Janice Treu

Assistant U.S. Attorney

75 Spring Street

Suite 1800

Atlanta, Georgia 30303

John R. Martin

44 Broad Street, N.W.

500 Grant Building

Atlanta, GA 30303

Douglas McDonald

P.O. Box 396

22 Clarksville Highway

Cornelia, GA 30531

Nancy Lord

1718 Peachtree St., N.E.

Suite 499

Atlanta, Georgia 30309

Respectfully submitted,

Wad sae yor

Mrs. Susie Dyerv

Pro Se

Route 2, Box 472

Hiawassee, GA 30546

706-896-3069

51

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53

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA, )

)

vs. )

)

CIVIL NO. 2:92-CV-199-wWCO

)

136.00 ACRES MORE OR LESS, LAND )

LYING AND BEING IN LAND LOT 221 )

OF THE 18TH DISTRICT, 18ST )

SECTION, TOWNS COUNTY, GEORGIA )

WITH MAILING ADDRESS ROUTE YF )

BOX 472, HIAWASSEE, GEORGIA, )

)

TITLED IN THE NAME OF:

DYERS TROUT FARMS, INC.

)

Defendant. )

)

ORDER

The captioned case is before the court on

motions by claimant Dyer's trout Farms to

extend time for discovery [32-1]; to stay

proceedings [37-1]; and for summary judgment

[41-1]. There are also motions before the

court by the plaintiff United States to compel

responses to discovery [33-1]; to extend time

to file a pretrial order [38-2]; and for

summary judgment [38-1].

Factual Background

The United sTates filed a civil complaint

for forfeiture of the defendant property on

October 20, 1992 and an amended complaint

amending the caption of the action and legal

description of the property on April 21, 1993.

This is a civil proceeding in rem in which

seeks an order declaring the defendant property

forfeited to the United States. The United

States contends that the defendant real

property was used to facilitate illegal drug

trafficking, in violation of Title 21 U.S.C.

and, therefore, the property is subject to

forfeiture to the plaintiff pursuant to 21

U.S.C. § 881(a) (7).

On September 10, 1991, agents of the

Georgia Bureau of Investigation and_ the

Governor's Task Force for the Eradication of

Marijuana discovered a number of marijuana

plants growing on the defendant real property

near the residence of William Dyer. The

government alleges that there were

approximately 108 marijuana plants growing on

the defendant real property. Approximately 10

of the plants were growing adjacent to William

Dyer's residence and 3 of the plants were

growing approximately 1/4 mile from William

Dyer's residence.’

William Dyer and the claimant contend that

Dyer knew about the 5 plants next to his home

but did not know about any more plants

= During the search of William Dyer's

residence and outbuildings, law enforcement

officers discovered several marijuana

Cigarettes, large amounts of potting soil and

fertilizer, peat/styrofoam cups ("starter

cups") and green mesh chicken wire of the same

distinctive type as that found surrounding the

larger plot of 95 marijuana plants. The

peat/styrofoam "starter cups" discovered at

William Dyer's residence were the same shape

as the bottom of the 95 marijuana plants as

they were pulled out of the ground by officers.

3

elsewhere on the property. On June 22, 1992

William Dyer was convicted of possession of

marijuana in a non-jury stipulated trial in

Towns County Superior Court.

The defendant real property is comprised

of a single tract of land being 136 acres more

of less. Legal title to the defendant real

property is held by Dyer's Trout Farms Inc.

The sole officers of Dyer's Trout Farms Inc.

are William Dyer, President, and Willard Dyer,

Secretary. William Dyer owns 68% of the stock

of Dyer's Trout Farms, Inc. All employees of

Dyer's Trout Farms report directly to William

Dyer.

Claimant Dyer's Trout Farms defends this

action of the basis of an "innocent owner"

defense. Claimant contends that any felony

violation of Title 21 U.SC. on the defendant

property was "committed or omitted without the

knowledge or consent of th[e] owner." 21

U.S.C. § 881(a) (7). Claimant also argues that

forfeiture of the entire defendant property,

approximately 136 acres, is disproportionate

to the seriousness of any felony violation

committed on the defendant property and would

therefore be violative of the protection of

the Eight Amendment to the United States

constitution against excessive fines.

Legal Analysis

= Motion to Extend Time by Dyer's Trout

Farms and Motion to Compel Discovery by

United States

A. Motion to Extend Time

On June 28, 1993, claimant Dyer's Trout

Farms requested an extension of discovery by

one month. Claimant contend that they hoped

for settlement and, thus, did not file all

their discovery requests sooner. The hope for

settlement does not excuse the failure to serve

discovery request within a reasonable time

prior to the end of discovery. The court is

unaware whether the parties proceeded with

discovery. If discovery proceeded past June

28, 1993, then the motion is granted nunc pro

tunc.

If claimant Dyer's Trout Farm [sic] still

plans to continue discovery, any further

extension of time is denied. Local Rule 225-

1(a) states that "Discovery proceedings shall

be initiated promptly so that discovery may be

initiated and completed within the period

designated in the discovery track to which the

case is assigned. . . ." (emphasis added) LR

225-1(a). On Friday, June 25, 1993, only one

business day prior to the close of discovery,

the government received claimant Dyer's Trout

Farms first set of interrogatories to plaintiff

United States and claimant Dyer's Trout Farms

first request for production of documents.

Claimant had ample time and opportunity during

the four month discovery period to conduct and

complete discover and should not have waited

until the end of the period to file these

discovery requests.

B. Motion to Compel Discovery

The United States moves the court to

compel claimant Dyer's Trout Farms to respond

to plaintiff's First Request for Production of

Documents. Federal Rules of Civil Procedure

37(a)(2) provides in part "[i]f a party in

response to a request for inspection under Rule

34 fails to respond... the discovering party

may move for an order compelling an answer

." The claimant has not objected to the

discovery requests. Claimant did request a

thirty day extension for discovery which is

addressed in this order. If Claimant has not

already provided the information requested in

plaintiff's First Request for Production of

Documents, claimant is hereby ordered to do so.

THe information which claimant is hereby

ordered to do so. The information which

claimant must produce includes claimant's

corporate income tax information for the

previous five years and all written records

memorializing the meetings held by claimant's

officers and shareholders during the year of

and the year preceding the discovery of

Marijuana growing on the defendant property

which gave rise to this forfeiture action.

II. Motion to Stay Proceedings by Dyer's Trout

Farms

The claimant moves the court to stay all

further proceedings until such time that

William Dyer, the president and majority

shareholder of the claimant is no longer in

jeopardy of federal prosecution. THis request

would mean that the court stay the proceedings

until September 9, 1996. Claimant contends that

a stay should be granted because it is being

denied important testimony in support of its

innocent owner defense by William Dyer, due to

Dyer's choice to assert his Fifth Amendment

privilege during his deposition and his

intention to assert that privilege at trial if

the case proceeds.

William Dyer has been prosecuted by state

authorities based upon the evidence of

cultivation of marijuana on the defendant

property. Although William Dyer is still in

jeopardy of a federal prosecution for this

incident, there is no parallel criminal

proceeding in the captioned case, and the

claimant readily admits that there has been no

indication by the United STates that it intends

to prosecute William Dyer. Such a prosecution

might even violate the internal policies of the

Justice Department. However, the United STates

will not make a formal decision not to

prosecute Dyer and will not grant Dyer immunity

under 18 u.S.C. § 6001 et. seg.

The claimant itself, by virtue of the fact

that it is a corporation and does not have

Fifth Amendment privilege to assert, is not

being placed in a position where it will be

penalized by an assertion of the privilege.

However, claimant contends that it is unfairly

handicapped in defending this lawsuit because

an employee of the corporation, who may have

been involved in criminal actions on property

owned by the corporation which were outside the

scope of his employment with the corporation

and not for the benefit of the corporation, has

chosen to claim his Fifth Amendment privilege.

The choice between presenting a defense

or remaining silent is not a form of unconstit-

utional compulsion in the civil setting.

United States v. Rylander, 460 U.S. 750, 758-

759 (1983). See also Williams v. Florida, 399

U.S. 78, 84-85 (1970) (pressure to testify does

10

not amount to compulsion). A claimant in a

forfeiture action is not penalized for

exercising his or her Fifth Amendment privilege

rather forfeiture is the consequence of the

claimant's failure to prove his or her case.

Although silence in the fact’ of the

government's probable cause showing may not be

the claimant's strongest case, the Fifth

Amendment privilege does not protect a litigant

from making difficult choices. United States

v. White, 589 F.2d 1283, 1286-87 (5th Cir.

1979) (requiring defendant to go to trial in

a civil case while criminal charges arising

from the same conduct were pending did not

unconstitutionally force the defendant to

choose between preserving his Fifth Amendment

privilege and losing the civil suit, where

there was no indication that invocation of the

Fifth Amendment would have necessarily resulted

11

in adverse civil judgment) .”

The Constitution does not require a stay

of proceedings when Fifth Amendment concerns

Gisadvantage a party to a civil suit. A stay

is mandated only when the invocation of the

privilege leads directly to an adverse

judgment, including a summary judgment. United

P.2G@ 749, 756 (28h Gis. 1992). When the

invocation of the Fifth Amendment privilege

does not directly in an adverse judgment, the

decision to grant or not to grant a stay is

case-specific. Wehling Vv. Columbia

Broadcasting System, 608 F.2d 1084, 1089 (5th

Cit. “a978). The Constitution does not

ordinarily require a stay of civil proceedings

pending the outcome of criminal proceedings.

*. In Bonner v. City of Prichard, 661 F.2d

1206 (11th Cir. 1981) (en banc), the Eleventh

Circuit adopted as precedent all of the

opinions of the former Fifth Circuit decided

prior to October 1, 1981.

12

S.E.C. V. Dresser Industries, 628 F.2d 1368,

1375 (D.C. Cir. 1980). Claimant's motion to

Stay the proceedings is hereby DENIED.

III. Motions for Summary Judgment and motion

to Extend Time to File Pretrial Order by

United States

A. Summary Judgment

The case is also before the court on both

the plaintiff's and the claimant's motions for

summary judgment. Ina forfeiture action, the

burden is on the United States to establish

probable cause for the belief that a

Substantial connection exists between the

property to be forfeited and an illegal drug

transaction. United States v. $4,255,625.39,

762 F.2d 895, 903 (11th Cir. 1985), cert.

Genied, 474 U.S. 1056 (1986). both sides agree

in their statement of materia facts that the

government has established probable cause.

Once the government establishes probable cause,

the burden of proof shifts to the claimant to

13

show, by preponderance of the evidence that the

real property is not subject to forfeiture.

Id. at 904; United states v. A Single Family

Residence, 803 F.2d 625, 629 (11th Cir. 1986).

Claimant is attempting to meet this burden by

showing that it is an innocent owner who did

not know of the property's connection with drug

Sales. single Family Residence, 803 F.2d at

629. The government's burden of probable cause

is met and the issue to be decided is whether

the claimant is an innocent owner.

Summary judgment is only proper when "the

pleadings, depositions, answers to

interrogatories, and admissions on file,

together with the affidavits, if any, show that

there is no genuine issue as to any material

fact and that the moving party is entitled to

judgment as a matter of law." Fed.R.Civ.P.

56(c). Where supporting or opposing affidavits

are used, the

14

affidavits shall be made on personal

knowledge, shall set forth such facts as

would be admissible in evidence, and shall

show affirmatively that the affiant is

competent to testify to the matters stated

therein. Sworn or certified copies of all

papers or parts thereof referred to in an

affidavit shall be attached thereto or

served therewith.

Fed. R. Civ. P. 56(3). Because the procedure

deprives the parties of a trial on the issues,

the court must be careful to ensure that only

those claims for which there is no need for a

factual determination as to any materia fact

are disposed of by summary judgment . Ce.otex

corp. v. Catrett, 477 U.S. 317 (1986).

In addition, a court evaluating a summary

judgment motion must view the evidence in the

light most favorable to the non-movant.

Samples v. City of Atlanta, 846 F.2d 1328, 1330

(llth Cir. 1988): Tippens v. Celotex Corp. 805

F.2d 949, 953 (llth Cir. 1986), reh'g denied,

815 F.,2d 66 (llth Cir. 1987). To survive a

15

motion for summary judgment, the non-moving

party need only present evidence from which the

trier of fact might return a verdict in his

favor. Samples, 846 F.2d at 1330. However,

Rule 56, "[b]y its very terms, .. . provides

that the mere existence of some alleged factual

dispute between the parties will not defeat an

otherwise properly supported motion for summary

judgment; the requirement is that there be no

genuine issue of material fact." Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247-8

(1986) (emphasis in original). The materiality

of facts is government by the substantive law.

Id. at 248. A dispute is genuine if the

evidence is such that the factual issues "may

reasonably be resolved in favor of either

party." Id. at 250.

Consideration of a summary judgment motion

does not lessen the burden on the non-moving

party: the non-moving party still bears the

16

burden of coming for the with sufficient

evidence on each element that must be proved.

Earley v. Champion Int'l Corp., 907 F.2d 1077,

1080 (11th Cir. 1990) (emphasis in original) ;

see Celotex, 477 U.S. at 322-23. "If on any

part of the prima facie case there would be

insufficient evidence to require submission of

the case to the jury, [the court] must

eorant : ” . summary judgment for. the

defendant." Earley, 907 F.2d at 1080

(citations omitted). In Earley the Eleventh

Circuit further emphasized:

The mere existence of a scintilla of

evidence in support of the plaintiff's

position will be insufficient; there must

be evidence on which the jury could

reasonably find for the plaintiff. :

Rule 56(c) mandates the entry of summary

judgment . . . against a party who fails

to make a showing sufficient to establish

the existence of an element essential to

that party's case. ‘ as In such

circumstances, there can be no genuine

issue of materia fact, since a complete

failure of proof concerning an essential

element of the non-moving party's case

necessarily renders all other facts

immaterial. . . . If evidence is merely

colorable, or is not significantly

pe

ive, summary judgment may be

granted.

id. (emphasis in original) (citations omitted).

In ruling on a motion for summary

judgment, a court must evaluate the evidence

in light of the proper standard of proof. In

an innocent owner defense the claimant bears

the ultimate burden of proving lack of

knowledge or consent to the illegal activity.

United States v. One Parcel Of Real Estate, 963

f.2d 1496, 1503 (11th Cir. 1992). Failure to

rebut a showing of probable cause to believe

the defendant property was used or intended to

be used to facilitate a violation of Title 21

U.S.C. is sufficient by itself to warrant

forfeiture. U.S. v. Little Al, 712 F.2d 133,

136 (5th Cir. 1983). The government as clearly

established probable cause that the defendant

real property was used to facilitate the

manufacture of marijuana. The court will not

turn to an examination of claimant's arguments

18

to see if innocent Ownership can be

established.

For purposes of the governments' motion

for summary judgment the court accepts the

following facts as true. Dyer's Trout Farms,

Inc. is engaged exclusively in the business of

raising and selling fish and livestock. the

entire income of the corporation is derived

from the sale of fish and livestock. The

corporation has received no income or benefit

from the cultivation of marijuana. Neither

Willard or Willis Dyer was aware of or

consented to the cultivation of marijuana on

the corporate property.

Although William Dyer is President and

majority shareholder of Dyer's Trout Farms,

claimant argues that his personal knowledge and

involvement cannot be attributed to the

corporation. Claimant relies on a Seventh

Circuit case in which a corporation was owned

19

by three family members in equal one-third

shares. United States v. One Parcel of Land,

965 F.2d 311 (7th Cir. 1992). The one family

member who conducted the day to day operations

of the property engaged in felony drug

violations without the knowledge and consent

of the other stockholders. the Seventh Circuit

entered summary judgement on behalf of the

corporation as an innocent owner.

This case while similar is also remarkable

different in one crucial aspect. The criminal

defendant in the one parcel case owned 33 and

1/3 percent of the property. William Dyer in

this case owned 68% of the property. This

court will not establish a particular number

of shares of stock at which knowledge will be

imputed from an individual to a corporation.

Other factors may increase or decrease the

relevance of a percentage of stock shares.

However, in this case a defendant who has 685

20

of the corporation's shares and controlling

authority of the daily activities of a family

owned corporation is found to provide that

corporation with knowledge of his activities.

911 F.2d 870 (2d Cir. 1990) (the corporation's

president and principal stockholder knew of

narcotics activity in the building and, thus,

the entire building was forfeited); United

States v. 4687 Acres in Marin County, 730

F.Supp. 423 (S.D. Fla. 1989 (the participation

of a .31% shareholder and agent of the company

in a crime did not constitute knowledge

chargeable to the corporation). The court in

4657 Acres emphasized that the controlling

Board of Directors and majority shareholders

had no knowledge of the illegal activity. In

this case, the president and majority

shareholder did have knowledge of the illegal

activity.

William Dyer, the majority shareholder and

president of the corporation knew he was

growing marijuana on property titled to the

corporation. His control over the claimant

corporation is nearly absolute. He holds his

office indefinitely and is the only officer

who knows the corporation's finances. William

exclusively controlled the use of his residence

and the corporate property upon which it is

located. In light of Williams' near total

control over the claimant corporation, his

knowledge is imputed to the corporation and the

corporation is, therefore, not an innocent

owner. thus, the government's motion for

summary judgement is hereby granted and the

property is forfeited to the united States.

The claimant's motion for summary judgment is

denied.

B. Eighth Amendment

22

This order of the court grants summary

judgment to the plaintiff and allows forfeiture

of the defendant property. Thus, the court now

finds it necessary to address claimant's

argument that forfeiture is disproportionate

to the seriousness of the felony and,

therefore, violates the Eight Amendment

protections against excessive fines. Austin

v. United States, 113 S.Ct. 2801, 2812 (1993).

Claimant contends that the 136 acres of real

estate is worth at least one million dollars.

Plaintiff argues that the defendant property

is worth approximately $490,000. For purposes

of this motion, the court will assume the

property is worth one million dollars.

In Solem v. Helm, 463 U.S. 277 (1983) the

Supreme Court established three relevant

factors to consider when determining if a

punishment is disproportionate under the Eighth

Amendment. These factors are: (1) the gravity

of the offense; (2) the sentence imposed on

other criminals in the same jurisdiction; and

(3) the sentence imposed for the same crime in

other jurisdictions. Solem, 463 U.S. at 290-

292. The Eleventh Circuit in McCullough v.

Singletary, 967 F.2d 530 (11th Cir. 1992)

analyzed the Solem test for disproportionality

in light of the Supreme Court's decision in

Harmelin v. Michigan, 111 S.Ct. 2680 (1991) .°

The Eleventh Circuit agreed with the Fifth

Circuit and found that after analyzing the

first fact of Solem, if a determination is made

that sentence was grossly disproportionate to

the offense then the court should consider the

remaining Solem factors. 967 F.2d at 535

(citing McGruder v. Puckett, 954 F.2d 313 (5th

.. Harmelin, Justice Kennedy stated

that the second and third Solem factors, intra

and inter-jurisdictional analyses, are

appropriate only in the rare case in which a

threshold comparison of the crime committéd

and the sentence imposed leads to an inference

of gross disproportionality.

24

Cir. 1992).

The Supreme Court has consistently upheld

the validity of harsh criminal penalties for

drug cases. See Harmelin_ v. Michigan, 111

S.Ct. 2680 (1991); Hutto v. Davis 454 U.S. 370

(1982). The Supreme Curt has also noted that

drug use and distribution is one of the

"greatest problems affecting the health and

welfare of our population." National Treasury

Employees Union V. Von Raab, 489 U.S. 656, 668

(1989). Defendant property was used to

cultivate a controlled substance, marijuana.

The gravity of the offense in this case brings

the forfeiture of the defendant property within

the constitutional boundaries.

Harsh punishments for drug offenses have

been upheld in all jurisdictions. Federal law

authorizes a sentence of up to forty years and

a fine of 2 million dollars, if the defendant

is an individual, for the manufacture of 100

25

Sees Fee SS Se LSS Se A eA ES Ea ee

or more marijuana plants. 21 U.S.C. § 841.

See United States v. Solomon, 848 F.2d 156

(llth Cir. 1988) (mandatory minimum five year

sentence for possession with intent’ to

distribute 5 grams of cocaine not

disproportionate because it was within

Statutory limits); United States v. SMith, 966

F.2d 1045 (6th Cir. 1992) (forfeiture of

$1,0900,000 worth of property and a 36-month

sentence after the claimant was convicted of

manufacturing 104 marijuana plants on the

property was not disproportionate or excessive

because it was within the statutory limits.) ;

United States v. Harris, 903 F.2d 770 (10th

Cir. 1990) (forfeiture of $413,493 was not

disproportionate under the Solem factors with

respect to claimant's conviction of possession

with intent to distribute three-quarters of a

pound of marijuana); United States v. Certain

REal Property & Premises Known as 38 Whalers

26

iS Be ee at Pe A i a

te Teron he

Cove Drive, Babylon, New York, 954 F.2d 29 (2nd

Cir. 1992) (upheld the forfeiture of a

Claimant's $687,000 interest in a condominium

in which the claimant had made two sales of

cocaine for a total of $250). The forfeiture

of the defendant property is not

disproportionate when analyzed under the Solem

factors and does not violate the excessive

fines clause of the Eight Amendment.

C. Motion to Extend Time to File Pretrial

Order

The plaintiff requests an extension of

time to file a pretrial order until thirty days

after the ruling on the motions for summary

judgment. This motion is denied. There is no

need for the government to file a pretrial

order as the government's motion for summary

judgment is granted pursuant to this order.

27

wes > i OO eS eS ee Ee ————

Conclusion

Claimant Dyer's Trout Farms motion for

extension of discovery is hereby DENIED [32-

2}'3 The United States' motion to compel

responses to discovery is hereby GRANTED [33-

1]. Claimant's motion to stay the proceedings

is DENIED [37-1]. The plaintiff's motion for

summary judgment is GRANTED [38-1] and the

Claimant's motion for summary judgment is

DENIED [41-1]. Plaintiff's motion for

extension of time is DENIED [38-2].

IT IS SO ORDERED this 18th day of January,

1994.

WILLIAM C. O'KELLEY

Chief United States District Judge

28

ESTE fe NR en pete oe oer ™

Pe Tn DTN

a EE gs a a

|

|

|

IN THE UNITED STATES COURT OF APPEALS

POR THE ELEVENTH CIRCUIT

No. 94-8158

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROUTE 2, BOX 472, 136.00 Acres more or less,

Land lying and being in Land Lot 221

of the 18th district, 1st Section, Towns

County, Georgia with mailing address Route 2,

Box 472, Hiawassee, Georgia,

Defendant.

DYER'S TROUT FARMS, INC.

Claimant -Appellant

NORTH GEORGIA FARM CREDIT, ACA

FEDERAL CREDIT BANK OF COLUMBIA,

Claimants.

On Appeal from the United States

District Court for the

Northern District of Georgia

ORDER:

29

—_

Susan Dyer's motion fo intervene as

climant on appeal is denied.” —

Emeritis R. Cox

UNITED STATES CIRCUIT JUDGE

‘| The cover memorandum stated that "In

light of the enclosed order, no action to be

taken on motion to stay enforcement.

30

IN THE SUPERIOR COURT OF TOWNS COUNTY

STATE OF GEORGIA

SUSIE DYER

Plaintiff,

CIVIL ACTION

FILE NO. 94-CV-40DB

Vv.

136.00 ACRES MORE OR LESS, LAND

LYING AND BEING IN LAND LOT 221

OF THE 18TH DISTRICT, 1ST

SECTION, TOWNS COUNTY, GEORGIA

WITH MAILING ADDRESS ROUTE 2,

BOX 472, HIAWASSEE, GEORGIA,

TITLED IN THE NAME OF:

DYER'S TROUT FARMS,

INC.

Defendant

MEMORANDUM OF HEARING

The above matter came on regularly for

hearing on pending motions on June 28, 1994.

The plaintiff was present accompanied by her

attorney, Nancy Lord; the cliamant, the United

States, was represented by Assistant U.S.

Attorney, Janice TReu; and claimant, Dyers

Trout Farms, Inc., was represented by attorney

John R. Martin.

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Arguments were presented by counsel on the

United States' "Motion to Dismiss" for lack oi

jurisdiction, and the plaintiff's "Motion for

Default Judgment”. In the course of the

arguments it was disclosed to this Court that

there is presently pending in the United States

Eleventh Circuit Court of Appeals an appeal

from the decision of the United STates District

Court in a civil action adjudicating forfeiture

of the real property which is the subject of

this litigation. It would appear that the

appellate decision on that issue should be

forthcoming within the next few months, anc

this Court, therefore determines that no rulinc

will be made on the pending motions in this

Towns County case until after the decision of

the United States Eleventh Circuit Court of

Appeals is rendered. It is anticipated that

the Court of Appeals' decision will clarify anc

give guidance concerning the legality of the

32

"forfeiture" proceedings and the propriety and

present posture of the claimants', the United

States and Dyers Trout Farms, Inc. After the

Eleventh Circuit Court of Appeals' decision is

rendered and reviewed by counsel they will then

advise the undersigned trial judge and a

determination will be made at that time as to

whether further oral arguments should be had

on the issues now pending in the Towns County

case.

This 29 day of June, 1994.

John S. Langford, Senior JUdge

Superior Courts of Georgia

Sitting by Designation in the

Superior Court of Towns County

ORIGINAL FOR FILING TO:

Honorable Cecil Ray Dye

Clerk, Towns Superior Court

COPIES TO:

Ms. Nancy Lord Mr. John R. Martin

Attorney at Law Attorney at Law

Ms. Janice Treu Mr. Douglas McDonald

Assistant Attorney at Law

U.S. Attorney

33

alia Mii