Citations
- 189 F. Supp. 3d 1208
Full opinion text
MEMORANDUM OPINION AND ORDER
James O. Browning, UNITED STATES DISTRICT JUDGE
THIS MATTER comes before the Court on: (i) Claimant Cruz J. Fraire’s Motion for Summary Judgment, filed July 29, 2015 (Doc. 43)(“Fraire MSJ”); and (ii) the United States’ Motion for Summary Judgment and Memorandum Brief in Support, filed November 11, 2015 (Doc. 57)(“United States MSJ”). The Court held hearings on November 2, 2015, January 5, 2016, and February 16, 2016, and a pre-trial conference on January 20, 2016. The primary issues are: (i) whether a genuine issue of material fact exists whether Claimant Cruz J. Frame qualifies as an “owner” of 2121 Celeste Road, SW, Albuquerque, New Mexico (“2121 Celeste”) for purposes of the innocent owner defense under § 983(d)(1) of the Civil Asset Forfeiture Act (“CAFRA”); (ii) whether a genuine issue of material fact exists whether Fraire qualifies as “innocent” under the CAFRA; (iii) whether the forfeiture of 2121 Celeste would violate the Excessive Fines Clause of the Eighth Amendment to the Constitution of the .United States of America; and (iv) whether the delays in this case violate Fraire’s due-process rights under the Fifth Amendment to the ■ Constitution of the United States. The Court will deny the Fraire MSJ and grant the United States MSJ. First, the Court will deny the Fraire MSJ because a genuine issue of material fact exists whether Fraire qualifies as an “owner” of 2121 Celeste under the CAFRA and the United States has produced sufficient evidence that Fraire was aware of or willfully blind to the illegal activity taking place at 2121 Celeste, .and that he did not do all that could reasonably be expected under the circumstances to terminate that activity. Second, the Court will grant the United States MSJ because, although a genuine issue of material fact exists whether Fraire qualifies as an “owner” of 2121 Celeste, no genuine issue of material fact exists whether Fraire. qualifies as “innocent” under the CAFRA. Third, the Court concludes that the forfeiture of 2121 Celeste would not violate the Excessive Fines Clause of the Eighth Amendment. Fourth, the Court concludes that the delays in this case do not violate Fraire’s due-process rights under the Fifth Amendment.
FACTUAL BACKGROUND
The Court will provide two factual sections. First, the Court will provide general background information to tell a coherent story and to provide context to this case. Second, the Court will set forth the undisputed material facts for purposes of deciding the two motions for summary judgment. The Court has drafted one undisputed material facts section based on the two motions, and it will rule on both parties’ motions for summary judgment in this opinion.'
1. General Background.
On August 1, 2013, Plaintiff United States of America filed its Verified Complaint for Forfeiture In Rem, listing Claimant Cruz J. Fraire as a person “who may claim an interest in Defendant Property.” Verified Complaint for Forfeiture In Rem at 2, filed August 1, 2013 (Doc. l)(“Complaint”). On September 17, 2013, Frame filed his Verified Claim and Statement of Interest (Doc. 10)(‘Verified Claim and Statement of Interest”), and his Answer to Verified Complaint for Forfeiture In Rem (Doc. ll)(“Answer”), in which he asserted his lawful and innocent ownership of 2121 Celeste, and requested judgment in his favor, return of 2121 Celeste, costs, and attorney’s fees. See Answer ¶¶ 2, 5, 7, at 1-2. Discovery commenced, and both sides served and responded to multiple Requests for Production. Fraire served interrogatories and deposed the Federal Bureau of Investigation (“FBI”) case agent. See Certificate of Service of First Set of Interrogatories, filed September 25, 2014 (Doc. 17)(“First Certificate of Service”); Certificate, of Service of Second Set of Interrogatories, filed May 20, 2015 (Doc. 36)(“Second Certificate of Service”).
2. Undisputed Material Facts.
The Court divides its undisputed material facts into three sections. The Court will first describe Fraire’s relationship with 2121 Celeste before the December 3, 2009, and March 28, 2011, FBI raids. Second, the Court will describe the use of 2121 Celeste beginning in December 2008, by members of the Los Padillas gang for drug trafficking. Third, the Court will describe the two FBI raids and Fraire’s actions with respect to 2121 Celeste thereafter. The Court reminds the parties that at the January 5, 2016, hearing, the parties agreed to the Court writing one set of facts, drawn from all of the summary judgment motions, responses, and replies. See Transcript of Hearing at 53:10-58:5 (taken January 5, 2016)(Court, Gorence, Meyers)(“Jan. 5th Tr.”).
a. Fraire’s Relationship with 2121 Celeste Before the December 3, 2009, and March 28, 2011, FBI Raids.
Fraire purchased the undeveloped 2121 Celeste in 1993 as an investment. See United States’ Response to Claimant’s Motion for Summary Judgment at 3, filed November 16, 2015 (Doc. 58)(“United States Response”)(setting forth this fact); Claimant Cruz J. Fraire’s Reply in Support of his Motion for Summary Judgment at 3, filed December 10, 2015 (Doc. 61)(“Fraire Reply”)(admitting this fact). Fraire has never resided at 2121 Celeste and he has never indicated to anyone else that he wanted to reside at 2121 Celeste. See United States MSJ ¶ 6, at 4 (setting forth this fact); Claimant Cruz J. Fraire’s Response to United States’ Motion for Summary Judgment and Memorandum Brief in Support ¶ 6, at 3, filed December 10, 2015 (Doc. 60)(“Fraire Response”)(admitting in part this fact). Fraire started to build a structure on the land. See United States Response at 3 (setting forth this fact); Fraire -Reply at 3 (admitting this fact). Fraire was subsequently arrested and convicted of Conspiracy under 21 U.S.C. § 846, see United. States Response at 3 (setting forth this fact); Fraire Reply at 3 (not disputing this fact), and was incarcerated from 1996 to 2005, see United States MSJ ¶ 8, at 4. (setting forth this fact); Fraire Response ¶ 8, at 4 (admitting this fact). At that time, 2121 Celeste “did not have plumbing, cabinets, toilets, or lighting.” United States Response ¶ 1, at 3 (setting forth this fact). See Fraire Reply ¶, at 2-4 (not disputing this fact). Fraire also did not maintain insurance for 2121 Celeste because it was unfinished. See United States MSJ ¶ 11, at 4 (setting forth in part this fact); Fraire Response ¶ 11, at 4 (admitting this fact). 2121 Celeste had no appliances, and it was left vacant and vandalized for about four years. See United States Response at 3-4 (setting forth these facts); Fraire Reply at 3-4 (not disputing these facts).
From on or about 2007, Claimant Jerry L. Padilla, III began to reside at 2121 Celeste. See United States MSJ ¶ 10, at 4 (setting forth this fact); Fraire Response ¶ 10, at 4 (admitting this fact). Prior to Padilla, III residing at 2121 Celeste, the house was uninhabitable because Fraire had not finished building it when he went to prison. See United States MSJ ¶ 9, at 4 (setting forth in part this fact); Fraire Response ¶ 9, at 4 (admitting this fact). While Fraire was incarcerated, many of the bills for 2121 Celeste were in arrears. See United States MSJ ¶ 12, at 4 (setting forth this fact); Fraire Response ¶ 12, at 4 (admitting this fact). While Fraire was incarcerated, the property taxes for 2121 Celeste were in arrears. See United States MSJ ¶ 13, at 4 (setting forth this fact); Fraire Response ¶ 13, at 4 (admitting this fact). Padilla, III paid the property taxes for most of the years he resided at 2121 Celeste. See United States MSJ ¶ 14, at 4 (setting forth this fact); Fraire Response ¶ 14, at 4 (admitting this fact). While Fraire was in prison, Padilla, III completely renovated 2121 Celeste at his own expense, but the renovations were done as part of the agreement between Mr. Padilla and Mr. Fraire in lieu of rent payments. See United States MSJ ¶ 15, at 5 (setting forth this fact in part); Fraire Response ¶ 15, at 5 (admitting this fact). Padilla, III did not consult with Fraire before making repairs. See United States MSJ ¶ 16, at 5 (setting forth this fact); Fraire Response ¶ 16, at 5 (admitting this fact). Fraire did not pay for the repairs to 2121 Celeste, but in consideration for the repairs, Fraire did not charge Padilla, III rent. See United States MSJ ¶17, at 5 (setting forth this fact); Fraire Response ¶ 17, at 5 (admitting this fact).
Other than when Padilla, III. was incarcerated, he has been residing at 2121 Celeste. .See United States MSJ ¶ 18, at 5 (setting forth this fact); Fraire Response ¶ 18, at 5 (admitting this fact). Padilla, III did not pay regular rent to Fraire to stay at 2121 Celeste, but pursuant to the agreement Padilla, III agreed he would serve as caretaker, make repairs, and pay all bills associated with 2121 Celeste in exchange for being allowed to live there.' See United States MSJ ¶ 19, at 5 (setting forth this fact in part); Fraire Response ¶ 19, at 5 (admitting this fact). There was no written rental or other tenancy agreement between Fraire and Padilla, III, but the terms of the agreement were clear. See United States MSJ ¶ 20, at 5 (setting forth this fact); Fraire Response ¶ 20, at 5 (admitting this fact). Fraire rarely visited 2121 Celeste. See United States MSJ ¶ 21, at 5 (setting forth this fact); Fraire Response ¶ 21, at 5 (admitting this fact).
b. The Los Padillas Gang’s Use of 2121 Celeste for Drug Trafficking.
2121 Celeste was “the situs for on-going cocaine and heroin transactions.” United States MSJ at 9 (setting forth this fact). See Declaration of Special Agent Carlos Zamora at 1-4 (executed November 16, 2015), filed November 16, 2015 (Doc. 57-7)(“Zamora Decl.”). “On March 19, 2009, Jerry L. Padilla, Jr. used Defendant Property for purpose of selling four (4) ounces of cocaine.” United States MSJ ¶1, at 3 (setting forth this fact). See Fraire Response ¶ 1, at 2 (not disputing this fact). “On December 3, 2009, the FBI executed a search warrant at Defendant Property.” United States MSJ ¶ 2, at 3 (setting forth this fact). See Fraire Response ¶2, at 2 (not disputing this fact), “Items recovered during the execution [of] that warrant included: 14 cell phones; a video surveillance system; a backpack with plastic ziplock bags; a money counter machine; packaging material buried outside in the backyard; $441,008 United States currency buried outside in the backyard; several heat sealers; and documentation belonging to both Padilla, Jr. and Padilla III.” United States MSJ ¶ 2, at 3 (setting forth this fact), See Fraire Response ¶2, at 2 (not disputing this fact). “On February 26, 2011, Defendant Property was used to sell two (2) ounces of heroin.” United States MSJ ¶ 3, at 3 (setting forth this fact). See Fraire Response ¶ 3, at 2 (not disputing this fact). “On March 17, 2011, Defendant Property was used to sell approximately 83.6 grams of heroin.” United States MSJ ¶4, at 3 (setting forth this fact). See Fraire Response ¶ 4, at 3 (not disputing this fact). “On March 28, 2011, FBI executed another federal search warrant at Defendant Property.” United States MSJ ¶ 5, at 3 (setting forth this fact). See Fraire Response ¶ 5, at 3 (not disputing this fact). “Items recovered during that search of Defendant Property included: $19,777 in U.S. currency; 13 cell phones; and driver licenses for Padilla III.” United States MSJ ¶ 5, at 3 (setting forth this fact). As a result of this conduct, Padilla, III, and Padilla, Jr. both entered into plea agreements. See United States MSJ at 9 (setting forth this fact); Plea Agreement, filed November 16, 2015 (Doc. 57-8)(“Padilla, Jr. Plea Agreement”); Plea Agreement, filed November 16, 2015 (Doc, 57-9)(“Padilla, III Plea Agreement in CR, No. 09-3598”); Plea Agreement, filed November 16, 2015 (Doc. 57-10)(“Padilla, III Plea Agreement in CR. No. 11-0667”), In Padilla, III, and Padilla, Jr.’s plea agreements, “each admitted that cocaine was sold out of Defendant Property.” United States MSJ at 9 (setting forth this fact). See Padilla, Jr. Plea Agreement ¶ 7, at 3; Padilla, III Plea Agreement in CR. No. 09-3598 ¶ 6, at 3. Padilla, III also admitted that heroin was sold out of 2121 Celeste. See United States MSJ at 9 (setting forth this fact); Padilla, III Plea Agreement in CR. No. 11-0667 ¶ 6, at 3.
c. The December 3, 2009, and March 28, 2011, FBI Raids.
On December 3, 2009, the FBI executed a search warrant at 2121 Celeste. See United States MSJ ¶ 22 (setting forth this fact); Fraire Response ¶ 22, at 6 (not disputing this fact). Fraire “was immediately aware of the December 3, 2009, FBI raid at 2121 Celeste Rd., because he saw it live on the news.” United States MSJ ¶ 22, at 5 (setting forth this fact). See Fraire Response ¶22, at 6 (admitting in part this fact). Padilla, III, and Padilla, Jr. were both taken into federal custody on December 3, 2009. See Arrest Warrant Returned Executed on 12/3/09 as to Jerry L. Padilla, Jr., filed December 4, 2009 (Doc. 10 in CR 09-3598)(“Padilla, Jr. Arrest Warrant”); Arrest Warrant Returned Executed on 12/3/09 as to Jerry L. Padilla, III, filed December 4, 2009 (Doc. 8 in CR 09-3598)(“Padilla, III Arrest Warrant”). Padilla, III, was released pre-trial, while Padilla, Jr. was detained pending trial. See Detention Order Pending Trial, filed December 10, 2009 (Doc. 15 in CR 09-3598)(“Padilla, Jr. Detention Order”); Order Setting Conditions of Release, filed December 11, 2009 (Doc. 8 in CR 09-3598)(“Padilla, III Conditions of Release”).
After the execution of the December 3, 2009, search warrant, Padilla, III paid to replace a gate at 2121 Celeste because it had suffered significant damage. See United States MSJ ¶ 24, at 5 (setting forth this fact); Fraire Response ¶ 24, at 6 (not disputing this fact). Fraire never came by to inspect whether or not Padilla, III made repairs to 2121 Celeste. See United States MSJ ¶25, at 6 (setting forth this fact); Response ¶25, at 6-7 (not disputing this fact). Fraire did not seek to evict Padilla III from 2121 Celeste following the execution of the December 3, 2009, FBI search warrant. See United States MSJ ¶ 26, at 6 (setting forth this fact); Fraire Response ¶26, at 7 (admitting this fact). “Fraire never asked anyone why the police executed a search warrant at Defendant Property on December 3, 2009.” United States MSJ ¶ 27, at 6 (setting forth this fact).- See Fraire Response ¶ 27, at 7 (admitting this fact). Fraire did not inspect Padilla, Ill’s repairs, see United States MSJ ¶ 25, at 6 (setting forth this fact); Fraire Response ¶25, at 7 (admitting this fact), or 2121 Celeste following the execution of the December 3, 2009 search warrant, see United States MSJ ¶28, at 6 (setting forth this fact); Fraire Response ¶ 28, at 7 (admitting this fact). The FBI did not recover any documents belonging to Fraire during the execution of the December 3, 2009, search warrant. See United States MSJ ¶ 29, at 6 (setting forth this fact); Fraire Response ¶ 29, at 7 (admitting this fact).
The FBI executed a second search warrant on 2121 Celeste on March 28, 2011. See United States MSJ ¶ 30, at 6 (setting forth this fact); Fraire Response ¶ 30, at 7 (not disputing this fact). The raid again resulted in damage to 2121 Celeste; See United States MSJ ¶ 30, at 6 (setting forth this fact); Fraire Response ¶ 30, at 7 (admitting this fact). Fraire did not pay for the repairs to 2121 Celeste that the March 28, 2011, FBI raid caused. See United States MSJ ¶ 30, at 6 (setting forth this fact); Fraire Response ¶ 30, at 7 (admitting this fact). The FBI did not recover any documents belonging to Fraire during the execution of the search warrant on March 28, 2011. See United States MSJ ¶ 31, at 6 (setting forth this fact); Fraire Response ¶ 31, at 7 (admitting this fact). “Padilla III did not discuss the March 28, 2011 search warrant with Fraire.” United States MSJ ¶32, at 6 (setting forth this fact). See Fraire Response ¶ 32, at 7 (admitting this fact).
PROCEDURAL BACKGROUND
On August 1, 2013, the United States of America filed its Verified Complaint for Forfeiture In Rem, listing Claimant Cruz J. Fraire as a person “who may claim an interest in Defendant Property.” Complaint at 2. On September 17, 2013, Fraire filed his Verified Claim and Statement of Interest, and his Answer, in which he asserted the following affirmative defenses:
4. Claimant alleges that various of his constitutional rights pursuant to the Fourth, Fifth, and Sixth Amendments to the United States Constitution were violated by the Plaintiff and its agents in this matter and that any evidence seized or garnered thereby should be suppressed prior to the trial of this matter.
5. Claimant raises the defense of being an “innocent owner.”
6. Claimant alleges that the arrest and forfeiture of the Defendant to Plaintiff would violate the Eighth Amendment to the United States Constitution.
7. Claimant should be awarded attorney fees in this matter pursuant to the Equal Access to Justice Act in that the complaint filed herein is frivolous and without a substantial basis in fact or in law.
8. Claimant asks that all issues so triable be tried by a jury.
Answer ¶¶4-8, at 2. Fraire requested judgment in his favor, return of 2121 Celeste, costs, and attorney fees. See Answer ¶¶2, 5, 7, at 1-2. Discovery commenced, and both sides served and responded to multiple Requests for Production. Fraire served interrogatories and deposed the Federal Bureau of Investigation case agent. See First Certificate of Service; Second Certificate of Service. The United States and Fraire have cross-moved for summary judgment.
1.The Fraire MSJ.
Fraire filed his motion for summary judgment on July 29, 2015. See Fraire MSJ at 1. Fraire first states in support of his motion that: (i) the United States “has presented no evidence to substantiate a claim that Cruz J. Fraire knew of the conduct giving rise to the forfeiture”; and (ii) the United States “has- presented no evidence to rebut Claimant Cruz J. Fraire’s affirmative defense that he is an innocent owner pursuant to 18 U.S.C.” Fraire MSJ at 1. Further, Fraire contends that § 983(c)(1).” Fraire MSJ at 1. In the Fraire MSJ, Fraire sets forth the following as undisputed material facts:
1. Mr. Fraire is the legal owner of the Defendant property. [Fraire Deposition]
2. Mr. Fraire had no knowledge of the illegal activity that occurred on his property. [Fraire Deposition]
3. Because Mr. Fraire had no knowledge of the illegal activity that occurred on his property, he could not have taken any actions to terminate such use of the property. [Fraire Deposition]
Fraire MSJ at 3.
Fraire then makes two arguments. See Fraire MSJ at 3-6. First, Fraire contends that the Court must grant summary judgment in his favor, because the United States’ discovery responses indicate that it will not offer any admissible evidence at trial. See Frame MSJ at -3. Fraire describes what, a civil forfeiture of property under 21 U.S.C. § 881(a)(7) entails and explains that the innocent owner defense appears in 18 U.S.C. § 983(d). See Fraire MSJ at 3-4. According to Fraire, the United States’ claim is based upon illegal conduct in which Padilla, III, Fraire’s tenant, engaged. See Fraire MSJ at 4. Fraire explains:
The only support for the Government’s claim that Mr. Fraire knew about the illegal conduct is found in hearsay declarations in significantly redacted FBI reports and the deposition of Agent Schwartzenberger who testified that the only information in the possession of the FBI regarding criminal activity by Cruz Fraire was undated “source reporting” from several unidentified individuals. [Deposition of Laura A. Schwartzenber-ger] at 9:21-10:6 [(taken January 27, 2015), filed July 29, 2015 (Doc. 43-2)(“Schwartzenberger Deposition”) ]. Agent Schwartzenberger conceded that, but for that undated hearsay information, the FBI had no information much less any corroboration, that Cruz Fraire was involved in time relevant criminal activity regarding the attempted forfeiture of his house. [Schwartzenberger Deposition] at 10:11-13.
Fraire MSJ at 4.
Fraire argues that, although Schwart-zenberger was subject to a subpoena decus tecum that required her to bring the entire relevant investigation file, counsel for the United States instructed her to not bring the file that allegedly contained documentation of the “source reporting.” Fraire MSJ at 5. Fraire explains that he filed a Motion for Finding of Contempt and to Compel Production for Sanctions, and that at the hearing on that motion, the Court ordered the United States to:
(i) personally double-check the Los Pa-dillas file to ensure that the United States has produced everything in the file related to Fraire;
(ii) produce all of the information in the file created or dated before March 22, 2011; and
(iii) produce all of the evidence that the United States intends to introduce at trial to establish that Fraire knew about the drug-trafficking operations at the Property.
Fraire MSJ at 5 (quoting Memorandum Opinion and Order, filed May 13, 2015 (Doc. 33)). Fraire states that, on May 20, 2015, he served his Second Set of Interrogatories and Requests for Production on the United States, and the United States’ Answers and Responses indicate that the United States “possesses no documents that support the hearsay claims regarding Cruz Fraire in the FBI report and plans to call no witnesses to substantiate the hearsay statements made in the FBI reports.” Fraire MSJ at 5. Fraire asserts that, as a result, the United States does not possess any admissible evidence to weigh against Fraire’s testimony that he is an innocent owner. See Fraire MSJ at 5. Fraire recognizes that, to avoid a grant of summary judgment, “the nonmoving party need not produce evidence in a form that would be admissible at trial, but the content or substance of the evidence must be admissible.” Fraire MSJ at 5 (quoting Thomas v. International Business Machines, 48 F.3d 478, 485 (10th Cir.1995)). According to Fraire, however, the United States cannot rebut Fraire’s innocent owner defense, having produced all evidence the United States intends to introducé at trial pursuant to the Court’s order. See Fraire MSJ at 6. Accordingly, Fraire argues that the Court should grant summary judgment in his favor. See Fraire MSJ at 6.
Fraire next asserts that he is entitled to the recovery of attorney fees and costs pursuant to 28 U.S.C. § 2465. See Fraire MSJ at 6. Fraire argues that, under 28 U.S.C. § 2465(b)(1), in civil proceedings to forfeit property under any federal law where the claimant prevails, he or she is entitled to reasonable attorney fees and other litigation costs reasonably incurred. See Fraire MSJ at 6. Fraire asserts that, here, the United States should have known that it lacked, credible, admissible evidence to support its forfeiture action. See Fraire MSJ at 6. Fraire therefore argues that, “[ajfter prevailing on this Motion for Summary Judgment, an award of attorney fees and costs is statutorily mandated in this case, and counsel for Mr.'Fraire will present their fee petitions to substantiate attorney fees and litigation costs.” Fraire MSJ at 6. In conclusion, Fraire requests that the Court grant the Fraire MSJ, that 2121 Celeste be restored to Fraire, and that Fraire be awarded attorney fees and costs reasonably incurred, and any other relief the Court deems just and proper. See Fraire MSJ at 6.
2. The United States Responds to the Fraire MSJ.
The United States filed its Response to the Fraire MSJ on November 16, 2015. See United States Response at 1. In its response, the United States argues that Fraire does not dispute that 2121 Celeste was being used to facilitate the sale of illegal drugs, and that it has put forward substantial evidence that “Fraire was neither innocent, nor an ‘owner’ for purposes of the innocent owner defense.” United States Response at 5. The United States therefore asks the Court to deny the Fraire MSJ. See United States Response at 6. First, the United States asserts that Fraire is not an “owner” of 2121 Celeste. United States Response at 6. According to the United States, 18 U.S.C. § 983(d)(6) defines the term “owner” as excluding “a nominee who exercises no dominion or control over the property,” United States Response at 6 (quoting 18 U.S.C. § 988(d)(6)).
The United States points to the following pieces of evidence in support of its argument that Fraire exercised no dominion or control over 2121 Celeste: (i) Fraire admits that he exercised “no dominion and control” over 2121 Celeste; (ii) he did not pay taxes or utilities on 2121 Celeste, nor did he obtain mortgage insurance or, collect rent on those residing there; (iii) while he was incarcerated from 1996 to 2005, he left 2121 Celeste abandoned and uninhabitable; (iv) while Frame was in prison, Padilla, III completely renovated 2121 Celeste at Padilla, Ill’s own expense; (v) Padilla, III did not consult with Fraire before making repairs and paid for all repairs to the premises, including those arising from the December 3, 2009, and March 28, 2011, FBI raids; (vi) Frame did not pay for nor inspect any repairs to 2121 Celeste; (vii) Fraire did not charge Padilla, III rent, and there is no evidence of any formal or informal rental or tenancy agreement between the two men; (viii) Padilla, III, not Fraire, paid the taxes; and (ix) even when Fraire was not in prison, he visited 2121 Celeste very infrequently. United States Response at 7-8. The United States also argues that Frame’s lack of connection to 2121 Celeste contrasts starkly with his involvement with another property he owns at 302/303 Me-naul. See United States Response at 8. According to the United States, Fraire has renters at 302/303 Menaul, had someone manage the Menaul Property while he was incarcerated, and made repairs to the Me-naul property. See United States Response at 8. Based on these facts, the United States asserts that, “[t]he evidence demonstrates that Frame was not the ‘owner’ of Defendant Property,” United States Response at 8.
Second, the United States argues that Fraire “cannot avail himself of the innocent owner defense because he either knew Defendant Property was used for illegal activity or was willfully blind to the obvious use of the property for illegal activity.” United States Response at 8. The United States asserts that, to prevail on his innocent owner defense, Fraire must show that he: (i) did not know of the conduct giving rise to forfeiture; or (ii) upon learning of the conduct giving rise to the forfeiture, he did all that reasonably could be expected under the circumstances to terminate such use of the property. See United States Response at 9 (citing 18 U.S.C. § 983(d)(2)(A)(i) and (ii)). The United States contends that Fraire admits that he took no action to terminate the use of 2121 Celeste for illegal activity and that “[t]here is substantial evidence that Fraire knew of evidence suggesting a high probability of the use Defendant Property for illegal activity.” United States Response at 9. The United States explains:
The FBI conducted the first of two search warrants at Defendant Property on December 3, 2009. Fraire was immediately aware of the police activity at Defendant Property as he had seen it live on the news. And he had seen the news coverage related to this several times on subsequent occasions. Padilla III and Fraire discussed the search warrant. Fraire was upset. He warned Padilla III about his behavior.
The December 3rd search warrant created quite a spectacle at Defendant Property. At least one helicopter was in the area. A backhoe was used to dig up portions of Defendant Property. It was a well-publicized event. This substantial evidence of Claimant Fraire’s knowledge of the 2009 search warrant creates a reasonable inference that he was aware that Defendant Property was being used for illegal purposes. Yet Fraire took no action — and this complete lack of reasonable efforts to halt the illegal activity on the premises necessarily defeats his motion for summary judgment by rendering the, innocent owner defense unavailable.
United States Response at 10.
The United States next argues that, even if Fraire did not know of the illegal use of 2121 Celeste, there is evidence that he was willfully blind to the fact. See United States Response at 10. According to the United States, it is undisputed that 2121 Celeste was used on multiple occasions to facilitate the Los Padillas gang’s drug trafficking activities, and that Padilla, III — the current long-time tenant of 2121 Celeste— was involved in at least two illegal drug transactions at 2121 Celeste in March 2009 and February 2011. See United States Response at 11. The United States further argues that it is undisputed that the “FBI executed federal search warrants at Defendant Property on December 3, 2009 and again on March 28, 2011.” United States Response at 11. The United States asserts that, during the December, 2009, search, FBI agents discovered over $400,000.00 in drug proceeds on 2121' Celéste and that Fraire learned about these events, which were highly public and on the news. See United States Response at 11. For these reasons, the United States maintains that Fraire cannot avail himself of the innocent owner defense. See United States Response at 12.
3. Fraire’s Reply.
Fraire replied on December 10, 2015. See Fraire Reply at 1. Fraire begins by outlining his overarching arguments. See Fraire Reply at 1-2. First, Fraire contends that there is no genuine issue of material fact whether he is the owner of 2121 Celeste for the purposes of 18 U.S.C. § 983(d)(6), because the record demonstrates that he is not a nominee and has not abandoned the property. See Fraire Reply at 1. Second, Fraire asserts that there is no genuine issue of material fact whether he is an innocent owner of 2121 Celeste, because “nothing in the United States’ Response shows that Fraire was aware of the illegal activity occurring on the property and was not willfully blind to the activity.” Fraire Reply at 2. Fraire further argues on this second point that, “[i]n the alternative, Mr. Fraire did all he could reasonably have done under the circumstances and based on the knowledge he had, to stop the illegal activity.” Fraire Reply at 2.'
Fraire next replies to .the United States’ disputed facts. See Fraire Reply at 2-4. Fraire takes issue with the United States’ citation of two of his • Responses to Requests for Production that state that he did not exercise dominion and control over 2121 Celeste once it was rented. See Fraire Reply at 2. Fraire contends that, while perhaps a poor choice of words, these statements were “made in the context of explaining that Mr. Fraire did not have additional photographs, documents, or things to produce because a family member was in physical possession of the property pursuant to an agreement with Mr. Fraire.” Fraire Reply at 2-3. Fraire states that the existence of that agreement is undisputed, and that “having that agreement in place amounts to some dominion and control, which is all that is required by 18 U.S.C. § 983(d)(6).” Fraire fteply at 3 (citing United States v. One 1990 Beechcraft, 1900 Twin Engine Turbo-Prop Aircraft, 619 F.3d 1275, 1278 (11th Cir.2010)). Fraire goes on to address the United States’ other purported disputed material facts. See Fraire Reply at 2-4.
Fraire then advances his first argument on the merits, asserting that Fraire is. the owner of 2121 Celeste, and not, as the United States contends, a mere nominee who exercises no dominion and control over the property. See Fraire Reply at 5, Fraire maintains that he is an owner for two reasons: (i) he is not a nominee; and (ii) the record shows he exercised dominion and control over 2121 Celeste. See Fraire Reply at 5. On point one, Fraire argues that the word “nominee” invokes some nominating or transferring action, and that the case law interpreting 18 U.S.C. § 983(d)(6)(B)(iii) suggests that the purpose of this provision is to prevent “people engaged in illegal activities [attempting] to disguise their interest in property by placing title in someone else’s name.” Fraire Reply at 5 (quoting United States v. One 1990 Beechcraft, 1900 Twin Engine Turbo-Prop Aircraft, 619 F.3d at 1278). According to Fraire, there is no evidence that Padilla, III was involved in Fraire’s 1993 purchase of 2121 Celeste, and that Fraire is therefore not a nominee. See Fraire Reply at 5.
Fraire attacks the United States’ argument that, at some point during Fraire’s incarceration or while Padilla lived on 2121 Celeste, Fraire abandoned the property. See Fraire Reply at 5. Fraire states that, “while no case law addresses whether an owner can become a mere nominee by abandonment and what steps would be required to do so, it may be helpful to look to the elements of abandonment and the elements of adverse possession as a guide to create this species of abandonment.” Fraire Reply at 5-6. Fraire alleges that, under New Mexico law, “abandoned property is defined as property which the owner has relinquished all right [to] title, claim, and possession,” Fraire Reply at 6 (quoting Sanchez v. Melendrez, 934 F.Supp.2d 1325, 1332 (D.N.M.2013)(Vazquez, J.)), and that abandonment must be intentional, see Fraire Reply at 6 (citing Baglin v. Cusenier Co., 221 U.S. 580, 589, 31 S.Ct. 669, 55 L.Ed. 863 (1911)). Fraire contends that he never intended to abandon 2121 Celeste and that his actions do not support a finding of abandonment. See Fraire Reply at 6. He states that he built a structure on 2121 Celeste until he was incarcerated, that “Mr. Cruz arranged for the taxes to be paid on the Defendant Property while he was incareerated[,]” and that “Mr. Cruz then arranged with his cousin to live on the Defendant Property as a caretaker and tenant and make improvements to the Defendant Property.” Fraire Reply at 6.
Fraire then explains that 18 U.S.C. § 983(d)(6)(B)(iii) states that the innocent owner defense is unavailable to “a nominee who exercises no dominion or control over the property.” Fraire Reply at 6 (quoting 18 U.S.C. § 983(d)(6)(B)(iii))(emphasis in Reply). Fraire argues that the United States Court of Appeals for the Eleventh Circuit has interpreted this language to mean that “any dominion or control that is exercised over the Defendant Property will render this statutory provision inapplicable.” Frame Reply at 6-7 (citing United States v. One 1990 Beechcraft, 1900 C Twin Engine Turbo-Prop Aircraft, 619 F.3d at 1278). Fraire then argues in affect that he exercised some dominion or control over 2121 Celeste when: (i) he purchased it in 1996; (ii) arranged for the payment of taxes on it when he was. incarcerated; and (iii) authorized his cousin, Padilla, to move in and serve as caretaker and tenant and begin making improvements. See Fraire Reply at 7. Fraire contends that these facts are undisputed and that they demonstrate that 18 U.S.C. § 983(d)(6)(B)(iii) is not applicable in this case. See Fraire Reply at 7.
Fraire takes issue with the United States’ reliance on United States v. Drezov, 2009 WL 9288928 (D. Ariz. Apr. 3, 2009). See Fraire Reply at 7. Fraire asserts that an unpublished decision from the District of Arizona is not controlling on the Court and that the facts, in any-event, are distinguishable. See Fraire Reply at 7. Fraire contends that the other cases that the United States cites support his claim of ownership of 2121 Celeste. See Fraire Reply at 8. Fraire states that the 'circumstances of his acquisition of 2121 Celeste are similar to the facts in United States v. Nava, 404 F.3d 1119 (9th Cir.2005), where “a daughter was found to be an innocent owner because her father did not pay purchase price for property, was not shown to have arranged for daughter’s acquisition of property, and did not occupy property.” Fraire Reply at 8 (citing United States v. Nava, 404 F.3d at 1130).
Fraire states that the United States Court of Appeals for the Eighth Circuit’s decision in United States v. One Lincoln Navigator 1998, 328 F.3d 1011, 1014 (8th Cir.2003), is helpful guidance here. See Fraire Reply at 8. Fraire states that, there, the Eighth Circuit was unwilling to disregard payment of the purchase price and title ownership as evidence of ownership, and that here, Fraire paid the purchase price for 2121 Celeste and holds title. See Fraire Reply at' 8. Fraire also contrasts this case with United States v. Walker, 607 F.Supp.2d 1138 (S.D.Cal.2009)(Lorenz, J.), where the claimant was title holder of a truck that her son used and filled with his belongings. See Fraire Reply at 9. The claimant could not show that she purchased it, did not pay the insurance or registration, and did not use the vehicle. See Fraire Reply at 9. According to Fraire, the-district court concluded that the claimant Was not an owner for forfeiture purposes. See Fraire Reply at 9. Fraire contends that, here, he purchased 2121 Celeste, occupied it by building a structure on it, and eventually installed a caretaker on it who would make improvements and pay bills instead of rent. See Fraire Reply at 9.
Fraire then moves to his second substantive argument, that -knowledge of a news story concerning tenant-occupied property does not amount to knowledge sufficient to defeat innocent owner status. See Fraire Reply at 10. Fraire states that the United States “overstates the evidence of Mr. Frame’s knowledge, which amounts to the undisputed fact that Mr. Fraire, at some • point, saw" a television news story concerning the Defendant Property.” Fraire Reply at 10. Fraire also takes issue with the United States’ citation to two excerpts from Padilla’s deposition, that allegedly contradict Frame’s deposition testimony “to establish that Mr. Fraire had additional knowledge regarding a search warrant and illegal activity.” Fraire Reply at 10. Fraire contends that, even if true, these statements do not establish that Fraire had actual knowledge of illegal activity taking place at 2121 Celeste. See Fraire Reply at 10. He maintains that they merely establish that Fraire knew that a search had been conducted on 2121 Celeste. See Fraire Reply at 10. Fraire further asserts that he never had a conversation with Padilla regarding the FBI search of 2121 Celeste, that he never saw any damage to the property, and that he never had a conversation with Padilla about him making repairs following the raid. See Fraire Reply at 11. Fraire also argues that, when Fraire “was asked why, upon seeing the news, [he did] not ask Mr. Padilla what happened,” Mr. Fraire responded, “If I’m not mistaken, I think they were in jail ... Well I heard that they had arrested them ...” See Fraire Reply at 11 (citing Fraire Deposition at 153:19-25).
Fraire argues that Fraire testified that he did not know of any details surrounding the news story and that he was unaware of any drug trafficking taking .place at 2121 Celeste. See Fraire Reply at 11. Fraire states that “[n]o case law exists on whether knowledge of a news story concerning one’s property equates to knowledge of illegal activity sufficient to trigger the duties described in 18 U.S.C. § 983(d)(2)(A)(ii).” Fraire Reply at 11. Fraire contends that, if a property owner’s only indication that illegal activity may be taking place on his or her property is a news story, it would be reasonable for the owner to assume that the police had access to the story as well. See Fraire Reply at 12. According to Fraire, the police would search the property, and either uncover evidence of wrongdoing and arrest the perpetrators, or uncover no evidence or wrongdoing. See Fraire Reply at 12. Fraire argues that requiring property owners to do more than the police to stop illegal activity would be unreasonable and dangerous. Fraire cites,to United States v. Lot Numbered One (1) of Lavaland Annex, 256 F.3d 949 (10th Cir.2001), for the proposition that “[a] property owner is not required to be a vigilante to stop illegal activity on his or her property.” Fraire Reply at 12.
Fraire then moves to his third substantive argument. See Fraire Reply at 13. Fraire explains that, to get the benefit of the innocent owner defense, “lack of knowledge is not enough if it amounts to willful blindness to the illegal activity.” Fraire Reply at 13. Fraire contends that, under the circumstances, he was not willfully blind to the illegal activity occurring on 2121 Celeste. See Fraire Reply at 13. He asserts that: (i) he rarely visited 2121 Celeste and was therefore not there to observe any illegal activity firsthand; (ii) he could not visit 2121 Celeste between 1996 and 2005, because he was incarcerated; (iii) when he was released from prison, he was unable to visit 2121 Celeste, because of his probation terms; (iv) prior to Padilla going to prison, Fraire had infrequent contact with him; (v) between 2005 and 2011, Fraire saw Padilla approximately once every two or three months; (vi) sometimes he would go two or three months without speaking to Padilla; (vii) when Padilla went to prison, Fraire had no contact with him; and (viii) he did not see Padilla on holidays and did not discuss the upkeep of improvements to the house with Padilla very often. See Fraire Reply at 13.
Finally, Fraire argues that, even if he had sufficient knowledge of illegal activity at 2121 Celeste, he did all that he could reasonably do to stop the illegal activity in the circumstances. See Fraire Reply at 14. Fraire contends that, if Fraire admonished Padilla, III in the alleged conversation between them following the FBI search, the Court would need to analyze under 18 U.S.C. § 983(d)(2)(ii) whether this conversation amounted to “doing all that could reasonably be expected under the circumstances to terminate such use of the property.” Fraire Reply at 14. According to Fraire,
[a] property owner should not be required to take heroic or vigilante measures to rid his or her property of narcotics activity ... The question is what measures were reasonable under the particular circumstances confronted by the property owner in question. Those circumstances may include the owner’s reasonable fears and concerns, its degree of familiarity with crime prevention, and its economic resources.
Fraire Reply at 15 (quoting United States v. Lot Numbered One (1) of Lavaland Annex, 256 F.3d at 949). Regarding the measures that would be reasonable under the particular circumstances of this case, Fraire states:
Since the case that led to Mr. Fraire’s incarceration, Mr. Fraire has carefully avoided all illegal activity. He has not been arrested since his release. He has not engaged in drug dealing. People have approached him and asked if he can obtain drugs for them, and Mr. Fraire suspects that someone has sent them to entrap him. Mr. Fraire believes he was sent to prison because of his association with his cousins and uncle. Under these circumstances, i.e. an extreme fear of being unfairly accused by law enforcement of drug dealing, a poor understanding of the law, a lack of familiarity with crime prevention,, and few economic or community resources, the stern talking-to by Mr. Fraire was the most reasonable practicable measure to prevent the activity especially in light of the fact that Mr. Fraire had no information about what the activity was.
Fraire Reply at 15.
4. The Hearing on the Fraire MSJ.
The Court held a hearing on the Fraire MSJ on November 2, 2015. See Transcript of Hearing (taken November 2, 2015)(“Tr.”). The parties largely stuck to their briefing. The Court noted that, since the filing of the Fraire MSJ, the parties had engaged in some discovery and asked whether something had been learned. See Tr. at 2:19-3:7 (Court). The United States explained that it learned that “Fraire did indeed — was indeed aware of the activity that occurred there in March — or in December of 2009, prior to the arrest of Jerry Padilla.” Tr. at 3:8-13 (Meyers). According to the United States, the deposition shows that Frame was “indeed aware of the activity, the law enforcement activity, that took place at the defendant property prior to when he stated originally through his motions that he wasn’t aware until Jerry, III, was arrested in March' of 2011.” Tr. at 3:20-4:1 (Meyers). The United States explained that it would fíle a response to the Fraire MSJ and subsequently its own motion for summary judgment. See Tr. at 4:7-14 (Meyers).
Fraire stated that the United States does not dispute that Fraire is the owner and has been for a long period of time, and so the issues are very narrow. See Tr. at 7:3-11 (Gorence). Fraire further explained that the United States deposed two individuals, Fraire and Jerry Padilla Jr., Padilla, Ill’s father. See Tr. at 7:7-25 (Court, Gorence). Fraire confirmed that, at his deposition, he disclosed that he saw something on the news related to the Padillas in December, 2011. See Tr. at 7:20-8:8 (Go-rence). Fraire complained that the United States had not yet filed a Response. See Tr. at 8:17-12:5 (Court, Gorence, Meyers). The Court asked what was learned from Padilla, Ill’s deposition. See Tr. at 12:8-9 (Court). Fraire asserted that Padilla, III did not tie Fraire’s knowledge to the drug transaction at 2121 Celeste. See Tr. at 12:14-13:23 (Court, Bowles, Gorence). The Court then asked whether the worst evidence for Fraire was him stating that he saw on the news there were some search warrants executed at 2121 Celeste. See Tr. at 13:24-14:4 (Court). Fraire responded: “And I think the words that Mr. Fraire used were not as strong as what the Court just said. But you’re right, Your Honor, that is the strongest evidence that I’m aware of that the Government has, the idea that somebody saw a news clip.” Tr. at 14:11-16 (Gorence).
Fraire basically argues that there is no evidence of Fraire knowing anything before the December, 2011 search, so the question is whether, once he saw the news clip, it required him to do something and potentially kick out the tenants. See Tr. at 14:21-16:4 (Gorence). Fraire complained that, if that is the United States’ theory, they could have articulated it earlier. See Tr. at 15:18-16:4 (Gorence). Fraire then argued in support of his Motion, sticking to his arguments from the briefing. See Tr. at 18:2-22:22 (Gorence). Fraire emphasized that he' is “not contesting that illegal conduct took place at 2121 Celeste,” but maintained that he is entitled to the innocent owner defense. See Tr. at 18:16-19:15 (Go-rence). Fraire asserted that the United States’ one piece of evidence about Fraire seeing a news program in December, 2009 does not constitute' “proof of knowledge that his property is being used.” Tr. at 20:8-12 (Gorence). According to Fraire, all the United States can show is that, at best, he' might have seen a news show, but he never saw an indictment, and no FBI agent ever talked to him. See Tr. at 20:20-21:7 (Gorence). Fraire asserted that “a TV report, that clearly can’t constitute, as the statute said, knowledge] of the conduct giving rise-to the forfeiture.” Tr. at 21:18-20 (Gorence). Moreover, Fraire expressed frustration with this case pending so long without a response from the United States and that there is nothing on this record that would defeat Fraire’s innocent owner’s defense. See Tr. at 21:23-22:22 (Go-rence).
The United States then took up argument. See Tr. at 23:7-12 (Bowles, Court, Meyers). The United States began by emphasizing that, under the forfeiture statute, the burden falls squarely on the claimant to demonstrate that he or she is an innocent owner. See Tr. at 23:13-20 (Meyers). The United States agreed with Fraire that no one here is contesting that illegal conduct took place at 2121 Celeste. See Tr. at 23:21-24 (Meyers). According to the United States, it has therefore met its burden under the statute to demonstrate that 2121 Celeste is indeed subject to forfeiture. See Tr. at 24:5-9' (Meyers). The United States asserted that the case turns on what Fraire knew, when he knew it, and what, if anything, he did about it. See Tr. at 24:15-19 (Meyers). The United States agreed with the Court that the case becomes a resolution of the issue whether Fraire’s knowledge about the execution of the search warrants is enough to trigger responsibility on his behalf to take reasonable steps to terminate the activity at 2121 Celeste. See Tr. at 25:1-24 (Court, Meyers). The United States maintained that, once Fraire saw the news program, it was a triggering moment, and Fraire could not do nothing. See Tr. at 25:25-26:7 (Meyers).
The United States conceded that it does not have any evidence that Fraire knew of the activity that triggered the December 2009, search warrant and accompanying indictment. See Tr. at 28:4-12 (Meyers). The United States agreed with the Court that Fraire was “innocent up to the point that the Government starts taking away the property or starts limiting the property.” Tr. at 29:2-12 (Court, Meyers). • The Court expressed some skepticism regarding the United States’ argument that, after the United. States put its lis pendens on 2121 Celeste, Fraire was still expected to do “all that reasonably could he expected under the circumstances.” Tr. at 29:13-30:15 (Court, Meyers). The Court stated: “[T]here has got to be a point where we’re concerned about the innocence of the owner. It seemed to me that it might come to an end when the Government starts putting lis pendens on the land.” Tr. at 30:22-31:1 (Court). The United States maintained that Fraire still did not do everything that would be expected of him to abate the criminal use of the property. See Tr. at 31:2-21 (Meyers).
The United States also stated that it was concerned about Fraire’s statement in his response to the United States’ first request for production of documents that “I did not exercise dominion or control over the property that I owned.” Tr. at 33:15-20 (Meyers). According to the United States, the forfeiture statute itself states that “[a]n owner does not include a nominee who exercises no dominion or control over the property.” Tr. at 34:1-3 (Meyers). The United States explained that it therefore was not clear whether Fraire was an owner, as the statute contemplates that term, and can assert an innocent owner’s defense or make a claim on 2121 Celeste. See Tr. at'34:3-11 (Meyers). In sum, the United States stated that it might assert a claim that “whether or not he’s an innocent owner — he’s not even an owner as the statute contemplates, in order to' make a claim for the property.” Tr. at 34:11-15 (Meyers). Fraire maintained that he exercised sufficient dominion and control over 2121 Celeste and asserted that seeing the news story \vas not sufficient knowledge under the statute. See Tr. at 34:21-40:2 (Go-rence). Fraire asserted that the United States’ position would be that “[a] land owner, any apartment owner, anybody owns an apartment, anybody owns a house in the United States of America, [must] kick them out within one day, or if something else happens we’re taking your property.” Tr. at 38:12-40:2 (Gorence).
5. The United States MSJ.
The United States moved for summary judgment on November 16, 2015. See United States MSJ at 1. The United States first argues that 2121 Celeste is subject to forfeiture. See United States MSJ at 7. The United States contends that it has “the burden- of proof in a civil forfeiture action to establish by a preponderance of the evidence that the property is subject to forfeiture.” United States MSJ at 7. According to the United States, “[i]f the government’s theory is that the property was used to commit or facilitate the commission of a criminal offense, or was involved in the commission of a criminal offense, the government shall establish that there was a substantial connection between the property and the offense.” United States MSJ at 8. The United States asserts that there is no genuine dispute that 2121 Celeste was used to facilitate drug trafficking. See United States MSJ at 9. The United States further explains:
The Zamora Declaration establishes that Defendant Property maintained a substantial connection to the drug trafficking because it was the situs for on-going cocaine and heroin transactions. Further, nearly half a million dollars in dug proceeds was found on it. The distribution of cocaine and heroin are felonies. 21 U.S.C. section 841(a)(1). The Zamora declaration is buttressed by both Jerry L. Padilla, Jr. and Jerry L. Padilla Ill’s plea agreements: in their sworn statements in the plea agreements, each admitted that cocaine was sold out of Defendant Property. See [Padilla, Jr. Plea Agreement]; [Padilla, III Plea Agreement in CR. No. 09-3598]; [Padilla, III Plea Agreement in CR. No, 11-0667]; see also [Deposition of Jerry L. Padilla, III at 66-67 (taken January 27, 2015), filed November 11, 2015 (attached as exhibit 4 to Doc. 57)(“Padilla, III Deposition”) ]. And Padilla III further admitted that heroin was sold out of Defendant Property and that he maintained drug proceeds at Defendant Property. See [Padilla, III Deposition] at 68-70.
Based on the undisputed facts discussed above, there is no dispute that there was a substantial connection between Defendant Property and the underlying criminal activity. Consequently, the government is entitled to judgment as a matter of law. See United States v. Real Property 3097 S.W. 111th Ave., 921 F.2d 1551, 1556 (11th Cir.1991)(resi-dence forfeited as facilitating property where driveway served as “planned site” of drug deal and was chosen so that deal would take place on familiar territory); United States v. .30 Acre Tract of Land at 524 Cheek Road, 425 F.Supp.2d 704, 708-09 (M.D.N.C.2006) (residence where drugs were stored and sold on multiple occasions forfeitable as facilitating property).
United States MSJ at 9.
The United States next argues that Frame is not an innocent owner under 18 U.S.C. § 983(d)(1). See United States MSJ at 10. The United States asserts that Fraire carries the burden of demonstrating that he is an innocent owner. See United States MSJ at 10. According to the United States, “[i]n attempting to advance an innocent owner defense, Fraire superficially avers that he did not know of the conduct giving rise to forfeiture. This con-clusory and self-serving statement is not sufficient to avoid summary judgment.” United States MSJ at 10 (citing United States v. 16328 South 43rd E. Ave., Bixby, Tulsa County, Okla., 275 F.3d 1281, 1285 (10th Cir.2002)). The United States maintains that there is substantial evidence set forth in the undisputed facts that Fraire had knowledge of illegal activity at 2121 Celeste: (i) Fraire had immediate notice of the December 3, 2009, search; (ii) on multiple subsequent occasions, he saw further news coverage of the search; and (iii) Padilla, III and Fraire discussed the search warrant, and Fraire expressed displeasure and warned Padilla, III about Padilla, Ill’s behavior. See United States MSJ at 10-11.
The United States further explains:
To be sure, Fraire knew of facts suggesting a high probability of the use of Defendant Property for illegal activity. Actual knowledge of use of property for illegal activity may be proven by inference from circumstantial evidence suggesting high probability of property’s involvement with illegal activity; property owner may not turn blind eye toward such evidence and still claim innocent owner status under 18 U.S.C. § 983(d)(2)(A). United States v One 1988 Checolet 410 Turbo Prop Aircraft, 282 F.Supp.2d 1379 (S.D.Fla.2003). And, though he was clearly on notice from the December 2009 search warrant, Fraire, by his own admission, took no steps to terminate the illegal use of Defendant Property. And it is undisputed that criminal activity — as evidenced by at least two additional sales of heroin— continued unabated at Defendant Property.
United States MSJ at 11. The United State asserts that the undisputed facts thus demonstrate that Fraire did not, upon learning of the conduct giving rise to forfeiture, do all that reasonably could be expected under the circumstances to terminate such use of the Defendant Property. See United States MSJ at 11. Rather, Fraire “did almost nothing to terminate such use, and his lack of action is fatal to his innocent owner defense.” United States MSJ at 11. The United States therefore asks the Court to enter summary judgment in its favor, because Fraire was both aware of the illegal conduct at the Defendant Property and he did not make reasonable efforts to halt it. See United States MSJ at 12.
6. Fraire’s Response to the United States MSJ.
Fraire responded to the United States MSJ on December 10, 2015. See Fraire Response at 1. Fraire argues that he does not have personal knowledge regarding the United States’ claims that 2121 Celeste bears a substantial connection to illegal activity and that it is the United States’ burden to prove a substantial connection. See Fraire Response at 7. Fraire next turns to the United States argument that Fraire is not an innocent owner. See Fraire Response at 8, Fraire first contends that he was unaware of the illegal activity occurring on 2121 Celeste and that the only knowledge he has ever had concerning such activity stems from him seeing a television news story that reported a police search of 2121 Celeste, See Fraire. Response at 8. He asserts that it “is undisputed that-Mr. Fraire had no actual knowledge of illegal activity occurring on the property before or after he saw the news story, and it is undisputed that Mr. Fraire did not know the specific basis of the news story.” Fraire Response at 8-9. Frame then re-states his argument from the Fraire Reply that a landowner should be able to assume that, once the police search the property, either evidence of illegal activity would be found and the perpetrators arrested, thereby abating the illegal activity, or no evidence would be found at all. See Fraire Response at 9. Fraire maintains that landowners should not be required to do more than the police to stop illegal activity when the police have the benefit of all the information from their investigation. See Fraire Response at 9.
Fraire next asserts that a genuine issue of material'fact exists whether Padilla, III and Fraire discussed the 2009 search of 2121 Celeste. See Fraire Response at 9. Fraire states that the only evidence that the United States has uncovered which contradicts Fraire’s affidavit are the two excerpts from Padilla, Ill’s deposition in which he “vaguely remembers a conversation with Mr. Fraire following the execution of the 2009 search warrant.” Fraire Response at 9. According to Fraire, in his deposition, he was asked if he had ever had any conversation with Padilla, III regarding the search warrant, and Fraire said “no.” Fraire further states:
He was asked if he ever talked to Mr. Padilla about the damage that was done at the Defendant Property-as a result of the police being there in December 2009. He responded, “No, I didn’t see no damage. I passed by a few days later, and I didn’t see no damages. I mean, as far as I know,- I don’t think there was any damages done.” [Fraire Deposition] at 152:19-153:1. When he was asked if he had a conversation with Mr. Padilla about him making repairs to the Defendant Property after the police caused the damage, Mr. Padilla said “no.” [Fraire Deposition] at 153:12-16. Finally, when he was asked, why, after seeing the news, did Mr. Fraire not ask Mr. Padilla what happened, Mr. Fraire responded, “If I’m not mistaken, I think they were in jail ... Well, I heard that they had arrested them ...” [Fraire Deposition] at 153:19-25. Mr. Fraire’s testimony is detailed and specific, while the testimony of Mr.'Padilla ultimately amounts to “I don’t know exactly what he said.” [Padilla, III Deposition] at 104.
Fraire Response at 10. Frame argues that, if the finder of facts gives more weight to Padilla, Ill’s testimony, it could go toward a