REAL ESTATE AND THE LAW : Owner of Condo Pays Twice for Drug Dealing

Edward was arrested for two sales of cocaine inside his condominium for a total sum of $250. The sales were about 2.5 grams. Edward was arrested by the local police, he cooperated and received a small fine with a probationary sentence.

But about two months later the U.S. Marshall obtained a warrant and seized the condominium where the transactions took place. The condo is worth about $145,000, subject to a $77,000 mortgage, with a net equity of $68,000. The U.S. District Court ruled the property was subject to forfeiture under federal law for selling cocaine in the condo.

On appeal, Edward argued his due process rights were violated, as were his rights against double jeopardy as well as cruel and unusual punishment. But the government replied there was no double jeopardy, since the federal, rather than state, government was acquiring his real estate involved in drug activity and taking his $68,000 equity was not excessive punishment.

If you were the judge would you allow the federal government to seize Edward’s condominium where the two cocaine sales for $250 took place?

The judge said yes.

Forfeiture of real property where illegal activity took place is unduly oppressive only if the owner of the forfeited property is innocent of the wrongful activity and unaware of it, the judge began. Here, there is no question Edward was involved in the two cocaine sales in the condo, he noted.

Although Edward was prosecuted under state law, the judge continued, he also is subject to the federal forfeiture law. Since two different governments prosecuted him, this is not violation of the U.S. Constitution prohibition against double jeopardy, he added.

It is not cruel and unusual punishment to take away a convicted person’s property, so Edward’s argument on this basis is without merit, the judge ruled. Therefore, the federal government may seize Edward’s condominium and order its forfeiture, since it was involved in his cocaine sale conviction, the judge concluded.

Based on the 1992 U.S. Court of Appeals decision in U.S. vs. Certain Real Property Known as 38 Whalers Cove Drive, Babylon, N.Y., 954 Fed.2d 29.