Ewachiw v. Director of Finance of Baltimore City

MOYLAN, Judge. The Maryland General Assembly in 1970 1 enacted a comprehensive statute designed to control trafficking in controlled dangerous substances. As part of its “full court press” against the illicit drug traffic, it provided for the forfeiture to the State of all money or currency found to have been used or intended for use in connection with the drug traffic. As we turn our appellate review to one such instance of forfeiture, it is helpful to begin with Md.Ann. Code, Art. 27, § 276 (1982 RepLVol. & 1986 Supp.), which sets out the purpose of the comprehensive law and provides guidelines for interpreting and construing that law.

After declaring that the illicit drug traffic has “a substantial and detrimental effect on the health and general welfare of the people of the State of Maryland” and stating the purpose of the law “to prevent [this] abuse which results in a serious health problem to the individual and represents a serious danger to the welfare of the people of the State of Maryland,” subsection (b) of that section provides: “The provisions of this subheading shall be liberally interpreted and construed so as to effectuate its general purpose as stated hereinabove.” ⁶¹ With those interpretative guidelines firmly in mind, we turn to the case at hand. The appellant, William C. Ewachiw, Jr., was the resident of the premises at 818 South Streeper Street in Baltimore City, when that premises was searched on November 10, 1981, pursuant to a validly issued search and seizure warrant. The police found a wide variety of equipment and paraphernalia associated with both the use and manufacture of controlled dangerous substances. There was also seized a sum of $14,175 in cash.

The appellee, the Director of Finance of Baltimore City, petitioned to have the cash forfeited under the specific provisions of Article 27, § 297(a)(6), which provides, in pertinent part: “(a) Property subject to forfeiture.—The following shall be subject to forfeiture and no property right shall exist in them: (6) All money, coin, or currency which has been used or intended for use in connection with the illegal manufacture, distribution, dispensing or possession of controlled dangerous substances or controlled paraphernalia. All money, coin, or currency which is found in close proximity to contraband controlled dangerous substances, controlled paraphernalia, or forfeitable records of the importation, manufacture, or distribution of controlled dangerous substances are presumed to be forfeitable under this paragraph. The burden of proof is upon a claimant of the property to rebut this presumption.” Following a full hearing in the Circuit Court for Baltimore City on September 6 and September 30, 1985, and January 24, 1986, Judge Milton B. Allen issued a Memorandum Opinion and Order on February 19, 1986, ordering the forfeiture. Upon this appeal from that decision, the appellant raises the following four contentions: 1.

That the decision of Judge Allen that the cash was found in “close proximity” to the contraband drugs and/or paraphernalia was clearly erroneous; ⁶² 2. That § 297(a)(6) as applied in this case was an unconstitutional deprivation of the due process of law guaranteed by the Fourteenth Amendment; 3. That the case should have been dismissed because of the failure of the appellee to prosecute within the required statutory period; and 4. That the appellee failed to allege and prove that the Petition for Forfeiture was filed within the 90-day period required by § 297(b)(4).

We turn our attention first to the fact finding of Judge Allen that the cash was, indeed, properly subject to forfeiture. What the appellant, in spinning his appellate argument about what the evidence reveals, stubbornly refuses to recognize is that, in assessing whether a trial judge’s fact finding is clearly erroneous, we take that version of the facts most favorable to the State and, further, draw all inferences in favor of the State that can reasonably be drawn from those already favorable facts. Defense testimony, because it may be utterly disbelieved by the fact finder, is at this stage utterly discounted. Two such spurious arguments have been raised by the appellant here.

The evidence showed the appellant to be the lessee of 818 South Streeper Street. The appellant, to be sure, testified that he sublet the basement of his premises to others and that a wide variety of people had free access to his house, but the fact-finding trial judge was under no obligation to believe any of this self-serving testimony. The assessment of the legal sufficiency of the evidence will be made not simply on the basis of the appellant’s being knowledgeable about and responsible for all illicit activities going on in his house but upon the basis of the appellant’s being the sole and exclusive occupant of that house. The appellant’s testimony as to the source of the $14,175 in issue was not only capable, from our appellate point of view, of being utterly disbelieved but was actually disbelieved by Judge Allen.

In his Memorandum Opinion and ⁶³ Order, Judge Allen pointed out that the appellant’s contention in this regard “carries little weight.” Judge Allen found that, contrasted with the strong circumstantial case for the State, “Mr. Ewachiw’s self-serving statements to the contrary strain the credulity of this Court.” The affirmative case for the State was a strong one. From the basement of 818 South Streeper Street, the police seized twelve nonconventional smoking pipes commonly used to abuse controlled dangerous substances such as marijuana and PCP, film canisters which are commonly used for distributing hashish and PCP, a hemostat, cigarette rolling papers, straws and pipe cleaners, glass bottles with residue, plastic vials with various types of suspected controlled dangerous substances, clear capsules, white tablets, hypodermic needles and a syringe, a burnt spoon with residue, rubber bands, other spoons with residue, a hot plate, a vacuum chamber, plastic bags with white powder, and a motor oil can with a clear liquid smelling like alcohol. Moving up from the basement to the living room/dining room area, the police found straws with residue, green-brown seeds, bright green residue in a vial, a metal clamp glass beaker stopper, goggles, and Noxene paper. More significantly, they found metal chips of the type used as a filter in producing PCP.

In addition, they found a Physicians’ Desk Reference and a notebook with detailed instructions for manufacturing PCP. As yet a further indication that this type of paraphernalia and equipment was overflowing the appellant’s entire home, the police recovered from the kitchen a plastic bottle with residue, two jars of clear liquid, and a piece of plastic hose containing a clear liquid. Various representative examples of the suspect substances and suspect residue were analyzed by the crime laboratory and were found to be marijuana, methamphetamine, phencyclidine (PCP), and cocaine. Following the incriminating trail upstairs, the police found in the appellant’s second-floor bedroom another hot ⁶⁴ plate, a chemical supply catalog, two chemistry books, a plastic labware catalog, and a magazine describing illicit drugs.

Several of the chemistry books were in Mr. Ewachiw’s name. In that same bedroom, the bulk of the money was found sitting on top of the dresser. The bills were in increments of $100 wrapped with rubber bands. The bundles containing $100 each were, in turn, wrapped in increments of $1,000.

Detective Marcus testified that “there were approximately twelve bundles.” Recovered from the dresser was actually a total of $13,200. An additional $975 was seized from the appellant’s wallet. Detective Marcus testified, moreover, that in his experience, “in dealing with narcotics drug trafficking and so forth, a thousand dollars is [the] approximate amount of money that is used to purchase an ounce of PCP.” Under all of the circumstances, Judge Allen’s conclusion that the seized cash had “been used or intended for use in connection with their illegal manufacture” followed ineluctably. In arguing the absence of “close proximity,” the appellant seems to fixate obtusely on the fact that narcotics were found in the basement and the money was found in a second-floor bedroom, two floors away.

He conveniently forgets the wealth of incriminating data, most especialljrthe metal chips and the detailed instructions for manufacturing PCP, found on the first floor. This alone, if it were necessary, cuts the distance in half. He is equally forgetful that the trail of chemical supply catalog, labware catalog, and chemistry books (for which no credible innocent explanation was offered) leads right on upstairs to within touching distance of the cash itself. The very wrapping pattern of “$100 bundles” and “$1,000 bundles of bundles,” itself a significant circumstance, literally envelops the seized cash itself.

As Chief Judge Gilbert pointed out for this Court in Bozman v. Office of Finance, 52 Md.App. 1, 4-5 , 445 A.2d 1073 (1982), aff'd, 296 Md. 492 , 463 A.2d 832 (1983): “The breadth of the term ‘close proximity’ deliberately has not been defined by either Maryland appellate court. ⁶⁵ Were we to undertake a delineating of ‘close proximity,’ it is almost a foregone conclusion that in any future searches, monies will always be found outside the area embraced by our definition. We shall not, therefore, attempt to define ‘close proximity.’ Instead, we shall treat the term with the same deference afforded ‘fraud’ and ‘a quantity sufficient to indicate an intent to distribute.’ We liken ‘close proximity’ to Justice Stewart’s comment on pornography. We do not define it, but we know it when we see it. In short, we shall determine ‘close proximity’ on a case-by-case basis. ‘Close proximity’ as used in Md.Ann.Code art. 27, § 297(a)(6) must be understood with reference to the legislative purpose.

Judge Digges, in Prince George’s County v. Blue Bird Cab Co., Inc., 263 Md. 655, 662 , 284 A.2d 203, 207 (1971), observed that the Legislature’s purpose in adopting the forfeiture provisions was an ‘attempt not only to curtail drug traffic in this [S]tate, but to discourage such a blight from continuing in the future.’ ” (Footnotes omitted). The fact finding of Judge Allen on the ultimate merits of the forfeiture itself was not clearly erroneous. The appellant’s second contention is a bit muddled, but we will try to state what we sense to be its thrust. The appellant is focusing upon the second and third sentences of § 297(a)(6) and claiming that they represent an unconstitutional deprivation of due process of law.

The second sentence sets out the legislatively created presumption that when money is found in close proximity to contraband drugs or paraphernalia, that money is presumed to be forfeitable; it is thus presumed to have “been used or intended for use in connection with” the illicit drug operation. The third sentence casts upon the defendant in the forfeiture proceeding the burden “to rebut this presumption.” In arguing that the use of a presumption in that fashion constitutionally runs afoul of In re Winship, 397 U.S. 358 , ⁶⁶ 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970), and Mullaney v. Wilbur, 421 U.S. 684 , 95 S.Ct. 1881 , 44 L.Ed.2d 508 (1975), the appellant is essentially arguing that although a Thayer-Wigmore presumption, casting upon a criminal defendant a mere burden of production, may be constitutional, a Morgan presumption, casting upon a criminal defendant the heavier burden of ultimate persuasion, is never constitutionally permitted. The appellant's argument would seem to say further that the legislatively created presumption in this case is more than a Thayer-Wigmore presumption, simply shifting to him the burden of production. The appellant’s thesis is that when he offered an explanation for the presence of the cash in his bedroom and on his person, that represented a prima facie case that the case was not “used or intended for use in connection with” the illicit drug traffic and that that should have dissipated or “burst the bubble” of the presumption.

The State would thereby have been divested of all possible reliance upon the presumption and would have been required to prove the illicit use or intended illicit use by the requisite burden of persuasion just as it was required to prove all other elements of the case. If the final sentence of the subsection casts any burden of ultimate persuasion upon the defendant, that statutory provision, so the appellant’s thesis runs, would be unconstitutional. There is more difficulty in stating the appellant’s contention than in answering it. There is both a factual answer and a legal answer.

Factually, it is obvious that Judge Allen never relied upon a presumption of illicit use arising from a predicate fact of close proximity. His Memorandum Opinion and Order makes it clear that he found, as a matter of fact, the illicit use directly from the affirmative evidence offered by the appellee. Based upon the pervasive presence of drugs, paraphernalia, and equipment; upon the metal chips and the direction book for making POP; upon the chemistry books and pharmaceutical catalogs; and upon the very wrapping pattern of the cash itself, Judge Allen made his findings of fact upon the ultimate merits: ⁶⁷ “This Court is persuaded that the money found in the Ewachiw residence was intended for use in connection with violations of narcotics laws and is, therefore, subject to forfeiture. * * * * * * Viewing the evidence as a whole, this Court finds the cash to be intended for use in connection with violations of narcotics laws.” Even if we were to assume, arguendo, that the legislatively created presumption was unconstitutional, it simply played no role in this case whatsoever. The legal answer is that this is not a criminal case.

In re Winship, supra, and all of its progeny, including Mullaney v. Wilbur, supra, Sandstrom v. Montana, 442 U.S. 510 , 99 S.Ct. 2450 , 61 L.Ed.2d 39 (1979), and Connecticut v. Johnson, 460 U.S. 73 , 103 S.Ct. 969 , 74 L.Ed.2d 823 (1983), are concerned only with criminal prosecutions. Permeating the entire discussion in In re Winship is the special protection given to defendants facing conviction for a violation of the criminal law. The holding of In re Winship, which is the doctrinal point of departure for this entire body of law, is that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” 397 U.S. at 364 , 90 S.Ct. at 1072 , 25 L.Ed.2d at 375 (emphasis supplied). By way of contrast, it is clear that the proceeding under this forfeiture statute is a civil in rem action.

Prince George’s County v. Blue Bird Cab Company, 263 Md. 655 , 284 A.2d 203 (1971). The action is not in personam against Ewachiw himself; it is in rem against the alleged contraband per se. If the statute casts, as it clearly seems to, the burden of ultimate persuasion upon the owner of the property subject to forfeiture to provide an explanation for the presence of the cash which is not only theoretically believable but which is actually believed by the fact finder, that burden would be compatible with the tone and stated purpose of ⁶⁸ the forfeiture statute. Indeed, in commenting upon the deliberate harshness of the forfeiture law, Judge Digges noted, for the Court of Appeals, in Prince George’s County v. Blue Bird Cab Company, supra, at 263 Md. 662 , 284 A.2d 203 : “We agree that in some ways this is a harsh law; however, it is within the Legislature’s power to decide whether such a forfeiture provision is desirable.

Its purpose is to attempt not only to curtail drug traffic in this state, but to discourage such a blight from continuing in the future. Historically, decisive action has been required to prevent any plague from spreading. In the present case the Legislature has clearly indicated its purpose for this act. It is to control the proliferation of dangerous drugs in our society and it is a noble purpose, but an arduous task.

The measures that have been taken are not out of step with the great weight of authority.” A Morgan-type presumption, moreover, has always been appropriate in civil proceedings. Quite fittingly, it casts upon the party with the greatest access to the information the burden of being forthcoming with all available information. If circumstances cast a cloud of suspicion over the money, as the proximity of the money to clear evidence of socially unacceptable behavior did here, it is not inappropriate to require the appellant to dispel that cloud of suspicion to the ultimate satisfaction of the fact finder. In Plummer v. Waskey, 34 Md.App. 470, 485 , 368 A.2d 478 (1977), we spoke directly to this issue: “This due process limitation on the operation of legal presumptions, however, does not operate in the civil arena.

There, unhindered by the due process clause, the burden of ultimate persuasion as well as the burden of producing evidence may be allocated to either party on any particular issue as the emerging common law deems appropriate and fair. A presumption in the other tradition—the Morgan tradition—that remains in the case and that does not disappear like the bursting bubble is appropriate in the civil law.” ⁶⁹ The distinction between procedural devices which are