Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW HOEVELER, Senior District Judge. THIS CAUSE was tried before the undersigned without a jury on October 12, 13, 14, 15, and 29 and November 1, 2, 3, 4, and 8, 1993. Having reviewed the file and the various documents, photographs and other items submitted as evidence, having heard and considered the testimony of the witnesses and the arguments of the parties at trial, and further, having reviewed pertinent parts of the transcript of the hearing held in March 1993, the Court now makes the following findings of fact and conclusions of law pursuant to Rule 52(a), Federal Rules of Civil Procedure. BACKGROUND This is a civil forfeiture action brought pursuant to 21 U.S.C. § 881(a)(7). On September 13, 1988, Plaintiff United States of America filed this in rem forfeiture action against the Defendant, 4,346 acres of real property owned by the S.J. & W. Ranches, Inc., (S.J. & W.), in Glades County, Florida. An amended complaint for forfeiture was filed on October 4, 1989. The S.J. & W. corporation filed a claim of ownership in response to the forfeiture action, denying that the property was subject to forfeiture. On January 17, 1991, S.J. & W. filed an answer and affirmative defenses to the Amended Complaint for Forfeiture. The alleged basis for forfeiture is that one section of the Defendant property was “intended to be used as a landing site, offloading point and distribution center” for approximately four hundred (400) kilograms of cocaine. The drugs were imported by an organization controlled by Alan Parrott. The intended delivery, via clandestine air travel, was scheduled for February 7, 1986. Evidence of an unsuccessful attempt to land a plane was discovered on the Brighton Seminole Indian Reservation, approximately J4 mile from the border of the S.J. & W. property, on February 17, 1986. Following the crash, several individuals not directly involved in this current action were arrested and criminally convicted on drug smuggling and conspiracy charges related to their involvement in the Parrott organization. See State of Florida v. Roosevelt Bray, Case No. 86-14795 CF A; State of Florida v. Nathan Platt, Jr., Case No. 86-14795 CF D. The United States filed this forfeiture action 31 months after the incident which is alleged to have rendered the property subject to forfeiture. In its answer to the forfeiture complaint, S.J. & W. affirmatively denies the existence of an airstrip, claims no “knowledge, consent or participation” in the acts alleged as the basis for forfeiture, and argues that the United States did not have probable cause for forfeiture. Answer, p. 7. The corporation also claims that the Defendant property consists of ten (10) distinct titled parcels or tracts of land, each separately recorded and separately liable for real estate taxes. As an additional affirmative defense, claimants allege that no notice was given to the Defendant property’s owner, S.J. & W., nor to any of the owner’s agents, servants or employees, that the defendant real estate was subject to forfeiture before the Complaint was filed. The due process requirements of pre-seizure hearing and notice are applicable to civil in rem forfeiture proceedings against real property, although a violation of these due process rights need not invalidate the forfeiture. United States v. James Daniel Good Real Property, — U.S. -, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993). As the Court has determined that the property should be returned to the Claimants it is unnecessary to further address the due process concerns presented by the government’s failure to provide pre-seizure notice. PROCEDURAL HISTORY S.J. & W. initially moved to dismiss the amended complaint, based on a lack of probable cause. On March 13, 1990, this Court denied S.J. & W.’s motion, but noted that “the factual basis for probable cause only barely passes legal sufficiency.” Order, March 13, 1990. On November 23, 1990, this Court granted partial summary judgment in favor of the United States on the issue of probable cause, finding that “the Government had a reasonable basis for believing the property was subject to forfeiture.” Order, November 23, 1990, p. 6. At the same time, the Court denied S.J. & W.’s cross-motion for summary-judgment on the probable cause issue and ruled that the cross-motion for summary judgment on the innocent owner defense was premature, since discovery was incomplete at that time. S.J. & W. then filed a Motion asking the Court to reverse the entry of summary judgment on the probable cause issue and seeking an evidentiary hearing on its claims that the law enforcement affidavits, on which the Court had relied in assessing probable cause for the forfeiture, had contained deliberate falsehoods or were made with reckless disregard for the truth. The Supreme Court, in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), established the right of a criminal defendant to challenge the veracity of an affidavit used by police to secure a search warrant. Although the Eleventh Circuit had not yet ruled on the appropriateness of a Franks proceeding to challenge affidavits submitted on the probable cause issue in a civil forfeiture action, this Court found support in the First and Second Circuits and ruled that “Franks is available to challenge the veracity of affidavits submitted by the Government in a civil forfeiture case.” Order, July 22, 1993, p. 3, n. 2. The Court conducted a hearing in response to S.J. & W.’s allegations. To successfully present a Franks violation and demonstrate that a warrant was based on a false affidavit, the “defendant must show that (1) the affidavit contained false statements; (2) the statements were material to the issue of probable cause; and (3) the false statements were made knowingly and intentionally, or with reckless disregard for the truth.” Franks v. Delaware, 438 U.S. at 155-56, 98 S.Ct. at 2676. The claimants’ allegations related primarily to the law enforcement officers’ limited disclosure of the questionable credibility of confidential informant Larry Fernandez, the alleged recantation of Nathan Platt’s corroborating statement, and the disputed timing of the officers’ aerial inspection of the S.J. & W. property. This Court’s Order of July 22, 1993, found that S.J. & W. did not carry its burden, under Franks, of showing that the affidavits contained deliberate falsehoods or were prepared with reckless disregard for the truth. However, as a result of the evidence presented at the Franks hearing, the Court reversed its prior ruling on probable cause. Order, July 22, 1993. The Court found that there were specific questions involving disputed facts raised by the evidence submitted at the hearing. 1. The Court finds that there is a disputed question as to whether a landing strip existed, or could have existed, on the S.J. & W. property in February, 1986, either in the Lake Pasture or in any other area of the Ranch in proximity to the Brighton Seminole Reservation. Similarly, it is unresolved whether the Government’s witnesses and/or the police investigators have confused S.J. & W. with another ranch that shares a western or northwestern boundary with the Brighton Seminole Reservation. 2. There also is a disputed issue of fact whether the Piper Navajo which crashed on February 7, 1986, in the Brighton Reservation was attempting to land on or near S.J. & W. property, or was in full flight en route to Tampa or another destination north of the Okeechobee area. 3. Even if the Government ultimately prevails at trial on the issue of probable cause, with respect to the “innocent owner” defense, there remains pursuant to 21 U.S.C. § 881(a)(7) a disputed fact as to whether the owners of S.J. & W. were aware, or should have been aware, that any drug smuggling activity had taken place on their property. Order, July 22, 1993, p. 11 (footnote added). The Court then set the case for trial. Subsequent to the Franks inquiry, but prior to commencement of trial, the Supreme Court announced its decision in Austin v. United States, — U.S. -, 118 S.Ct. 2801, 125 L.Ed.2d 488 (1993). S.J. & W. filed a Motion to Dismiss the forfeiture complaint based on the application of eighth amendment concerns as noted in Austin. S.J. & W. also filed a Motion to exclude any testimony from the DEA concerning the amount of drugs alleged to have been on the plane, arguing that Austin required a balancing of the value of the property sought to be forfeited with the value of the drugs involved in the crime, and that such determination required proof by the strictest standard, not through hearsay testimony. At trial, on October 12,1993, the Court conditionally admitted the testimony of Agent Fleckenstein of the DEA, for the limited purpose of later eighth amendment arguments under Austin. The testimony in this case included significant amounts of admissible hearsay, photographs, and agricultural exhibits. This Memorandum and the Court’s findings will address the record evidence in some detail, first concerning the government’s attempted proof of probable cause for forfeiture, followed by a discussion of claimant’s efforts to establish innocent ownership. I.FINDINGS OF FACT A. Probable cause that the property was used to import drugs 1. A Piper Navajo 310, registration number N7EA, crashed in early February 1986, on the Brighton Seminole Indian Reservation. 2. Sergeant Tommy Herne (hereinafter Sergeant Herne), of the Glades County Sheriffs Department, first investigated the crash on February 17,1986, then again with Agent John King (hereinafter Agent King), of the Florida Department of Law Enforcement, on February 27, 1986. Trial testimony of Sergeant Heme, November 8, 1993, Deposition of Agent King, page 35. Sergeant Heme left such physical evidence as he collected with the Glades County Sheriffs Department upon the later termination of his employment. No physical evidence was produced at trial. This evidence was described as “missing”. 3.Through statements of individuals involved in the drug smuggling conspiracy, law enforcement officials have determined that the plane was scheduled ,to land on the Defendant property with a load of cocaine and that the crash took place on February 7, 1986. The United States, through Agent King, offered the statement of Henry Arroyave, a convicted drug smuggler who was known as a supplier of Colombian cocaine. According to his trial testimony on October 12, 1993, Agent King interviewed Mr. Arroyave while he was incarcerated at the Hernando County Jail. Mr. Arroyave told Agent King that Carlos Mejia, a former associate of Mr. Arroyave’s and a member of the “offload crew” waiting for the delivery of cocaine, had been an eyewitness to the crash. Mr. Arroyave told Agent King that Carlos Mejia had telephoned Colombia to tell Mr. Arroyave that the plane had crashed. Trial testimony of Agent King, October 12, 1993. This testimony, which is based on double hearsay, is a primary source of the United States’ information concerning the exact date of the crash, the intended landing area and the nature of the cargo aboard the Piper Navajo. The eyewitness has never testified. During his deposition in January 1992, Agent King also stated that he never spoke to Carlos Mejia and that “Carlos Mejia is allegedly dead.” Deposition of Agent King, January 8-9, 1992, p. 194. Agent King stated at his deposition that Henry Arroyave was “simply the provider and overseer of the operation in Colombia”, and that Arroyave did not provide information about the landing strip or its identification. Id. at 174. At trial, the United States refused to provide Claimants’ counsel with any documentation of Agent King’s interview with Mr. Arroyave, claiming that Agent King’s report of the interview was “privileged”. The United States seeks to have this Court credit Agent King’s testimony about what Mr. Arroyave — a convicted drug smuggler and co-conspirator — heard from Mr. Mejia — an allegedly dead eyewitness to the crash. While hearsay testimony is admissible to establish probable cause in civil forfeiture trials, it is clear that the Court must evaluate such testimony with considerable care. As I am unable to assess the credibility of Mr. Arroyave his reported account will be given minimal value. However, based on other evidence submitted in this ease, including a crash report prepared by the National Transportation Safety Board, Ex. 30, the Court accepts as fact that the crash occurred prior to February 17, 1986, and, for purposes of this opinion, will assume that the crash occurred on February 7, 1986. 4. Some witnesses testified that there was no evidence of lights in the sky or on the ground in the vicinity of the alleged strip on the evening of February 7,1986. Trial testimony of Harvey Thomas, October 29, 1993; Trial testimony of Bill Wiersma, November 3, 1993. No live witnesses were able to testify at trial as to any activity, illegal or otherwise, on the Defendant property on the night of the crash. There was evidence of heavy fog in the area. Trial testimony of Richard Coxey, October 14, November 2, 1993. 5. No drugs were recovered from the wreckage of the Piper Navajo 310. No physical evidence from the crash (other than photographs of debris) was submitted at trial. Sergeant Herne testified at trial that he found seven grommets (apparently from duffel bags) at the scene of the crash. The United States argues that the grommets, as well as evidence that the plane had been modified for long distance cargo transport (e.g., enhanced fuel storage capacity and removal of additional seats in the plane), prove that the plane was intended to be used to transport drugs. 6. According to the FAA, no flight plans had been filed for aircraft N7EA surrounding the time of the crash. The same aircraft had previously been associated with D.M. Woods, Control Data of Canada and Beha, Inc. (Egypt), and was “involved in the shipment of Artillery Fire Control Computer systems technology with military use from the U.S. to Canada and then to Egypt.” Report of Agent King, Florida Department of Law Enforcement, January 7, 1987, Ex. # 97. It is, of course, entirely possible that such earlier long distance cargo transportation might have resulted in the modifications which were discovered in the investigation of the crash. The Court does not accept such evidence of modifications to the plane, standing alone, as conclusive proof of the plane’s use to transport drugs on February 7, 1986. 7. The United States has relied on statements of Lazaro Fernandez (hereinafter Mr. Fernandez), who was repeating information he obtained from Carlos Mejia, to determine that the flight was intended to import 400 kilograms of cocaine, but that only 180 kilos were present on that fateful night flight. In his “Affidavit in Aid of Extradition” of Roosevelt Bray, Agent King testified that the aircraft’s cargo on February 7, 1986, was approximately 800 pounds of cocaine. Affidavit of Agent King, sworn before Judge Mel Grossman, Circuit Court Judge, Seventeenth Judicial Circuit, Broward County, Florida, dated November 4, 1986. The Court is unable to conclusively determine the quantity of drugs, if any, that may have been on board that ill-fated flight. 8. Determining the location of the alleged landing strip, if any, in that area intended to be used on February 7, 1986, provided a challenge to law enforcement officers. Initially, the primary source of identification of the Defendant property was Mr. Fernandez, who was apprehended on June 27, 1986, in connection with a smuggling incident that formed the basis for the Tucker ranch forfeiture case. United States v. 4,657 Acres, 730 F.Supp. 423 (S.D.Fla.1989) (owners of ranch successfully established innocent owner defense). Mr. Fernandez was released during his period of cooperation with law enforcement authorities, and gave his first of many statements to law enforcement officers investigating narcotics trafficking in the region. Some of these statements provided information concerning the February 7, 1986, crash of the Piper Navajo. Agent King first interviewed Mr. Fernandez on June 28, 1986, the day after Agent King visited the crash site, then again with Sergeant Herne on July 11, 1986. Deposition of Agent King, January 8-9, 1992, page 132. At the first interview, Mr. Fernandez never identified a specific landing site, id,, at pages 137-38; said he wasn’t present at the crash, id. at page 145, pages 162, 281; and stated that he had never been to the site, id. at pages 146, 164. Mr. Fernandez’s story went through various transformations, such that at his most recent interview, in August 1993, Mr. Fernandez not only identifies the property, but also states that he was on the property for another clandestine delivery of controlled substances in August 1985. Trial testimony of Agent King, October 12, 1993. Mr. Fernandez never identified the strip with any particularity except by pointing to a place on a map during his early interviews with Agent King and Sergeant Herne, and this map — which is apparently lost (Affidavit of Agent King, October 8, 1992, p. 6, paragraph 15; Deposition of Agent King, January 8-9, 1992, page 371) — was never presents ed to the Court. Mr. Fernandez also initially identified the strip on “Beck’s” land, or on a large farm. Mr. Fernandez has also sworn that he was never on the alleged landing strip on the Defendant property. Grand Jury testimony of Mr. Fernandez, Ex. 39, pp. 15, 39. The United States acknowledges that Mr. Fernandez committed perjury on June 10, 1987, during a deposition relating to a Martin County investigation, Letter from F.D.L.E. to Judge Trowbridge concerning Mr. Fernandez, June 10, 1987, Ex. 8 (formerly Ex. 11 at March hearing). On July 14, 1987, Mr. Fernandez was arrested in Monroe County and charged with possession of cocaine. Letter from F.D.L.E. South Region Operations Bureau Chief Rolando D. Bolanos to Judge Trowbridge in Stuart, Florida, August 13, 1987, Ex. 13 to January 9,1992 Deposition of Agent King. On July 30, 1987, Mr. Fernandez was further charged with conspiracy with intent to defraud the United States by uttering, selling or buying counterfeit federal reserve notes. Id.; see also, F.D.L.E. Report concerning Mr. Fernandez’s participation in these crimes, dated August 1, 1987, Ex. 9 (formerly Ex. 12 at March hearing). 9. Initially, the clandestine landing strip was alleged to be on lots A, B, and C, “part of Scarborough”. Affidavit of Sergeant Herne, April 30, 1990, submitted with U.S. Motion for Summary Judgment on Probable Cause, Claimant’s Ex. 2 at trial, p. 2. Later, this location was discarded in favor of a location further south, more in accord with the debris of the plane crash. The United States asserts that the strip lies in an east to west direction. Expert witnesses for S.J. & W. assert that the wreckage indicates that a landing strip would have been in a north to south direction. 10. As stated above, Mr. Fernandez initially referred to the airstrip on a map which was not produced at trial — and was apparently “lost”, according to testimony of Agent King and Sergeant Herne at trial — and noted that the strip was on Beck’s property. In addition, Mr. Fernandez described the property as a “big farm ... about 5,000 acres”. Transcript of Interview of Mr. Fernandez, July 11, 1986, Ex. 6 (formerly Ex. 9 at March hearing), p. 13. Mr. Fernandez also stated that “immigrants work in there. Mexicans.” Id. He noted that the landing strip runs from south to west. Id., p. 14. He later stated that the strip runs from south to north. Id., p. 45. During this interview Mr. Fernandez used the missing map to describe the location of an airstrip apparently used in November 1985, based on directions he had received from members of the smuggling operation, although Mr. Fernandez claims to have not been on the strip. According to Mr. Fernandez, when approaching the area in question from Miami on Highway 78, one must turn left at the Circle K store. His directions from that point appear inconsistent, and the transcription of the interview is interrupted by an “off-record discussion” that was not transcribed. Id., p. 16. At one point Mr. Fernandez indicates a location on the map that is inside the reservation, according to Sergeant Herne. Id., p. 46. The government’s case both as to probable cause and in response to Claimants’ innocent owner defense at trial rested somewhat precariously on the credibility of Mr. Fernandez as well as some other alleged participants in the plane venture whose reliability was equally questionable. As noted above, Mr. Fernandez committed perjury in a Martin County case, but explained that he had done so out of fear for the safety of his family. Mr. Fernandez was also reported to be involved in counterfeiting U.S. currency, and possession of illegal substances. 11. In connection with his investigation of the smuggling operation on the Tucker Ranch, Agent King reports that Mr. Fernandez stated that Edward (Beebo) Womble was the middle man for the owner of the [Tucker] property intended to be used as an airstrip in June 1986. F.D.L.E. Report, dictated by Agent King, July 29, 1988, Ex. 84. Upon arriving at the airstrip on the Tucker property one week prior to the smuggling incident, Mr. Fernandez was met by Womble, Alan Parrott, and an unknown person in a blue pickup truck. Mr. Fernandez “could not seen [sic] the occupant of the truck but was told by Womble that he would have to leave as the owner in the truck did not want to be on the property at the same time as he (Mr. Fernandez) and the cocaine.” Id. Mr. Fernandez also stated that, on the night of the Tucker venture, he noticed that there was another person on the offload site with Womble, but he was “unable to see his face as it was dark and the person stayed at a distance.” Id. 12. This inability to recognize a person in a blue truck was allegedly duplicated on the S.J. & W. property when, in an early questioning by Agent King, Mr. Fernandez also stated that he saw someone in a truck on the S.J. & W. property whom he couldn’t identify. According to an earlier report by F.D.L.E., Mr. Fernandez was met by a white male driving a truck on February 8, 1986, as Mr. Fernandez and Nathan “Buddy” Platt were en route to the crash sight of the Piper Navajo 310. This individual was identified as “possibly being” Richard Platt. F.D.L.E. Report of Agent King, typed November 10, 1986, Ex. 83. The most recent recollection of Mr. Fernandez has identified Bill Wiersma (husband of Toni Jones Wiersma) as having been seated in a blue pickup truck, somewhere near the Defendant property. Trial testimony of Agent King, October 13, 1993. In response to a question from the Court, Agent King stated that he first learned of Bill Wiersma’s possible connection to the case on September 30, 1988, when Mr. Fernandez tentatively identified Bill Wiersma as the white male in the truck. Id. By the osmosis provided by the passage of time, Mr. Fernandez grew more and more certain of the identity of the man in the truck and then later, with alleged 100% accuracy, identified Bill Wiersma as the mystery man. The reference to the Tucker property, which is not at issue, is only to show the difficulty that Mr. Fernandez experienced in recollecting the identity of individuals present on the Defendant property, if indeed Mr. Fernandez was there. It is of interest to note that, unlike the majority of the populace, Mr. Fernandez’s memory seemed to improve rather than fade away with the passage of time, so that, remarkably, in 1993 he did what he couldn’t do in 1988 or earlier: he identified Bill Wiersma as having been the white male wearing a large hat, sitting in a blue pickup truck on the Defendant property at or near the time of the Piper Navajo 310 crash; this statement following the earlier one that he had never been on the site. 13.Another witness upon whom the Government relies is Nathan “Buddy” Platt. Platt did not appear at trial. His various statements were offered through Agent King. Law enforcement officers, particularly Sergeant Herne, isolated Nathan Platt and persuaded him to talk to them. In that statement, Nathan Platt initially denied any illegal association with Alan Parrott, Statement of Nathan Platt, August 25, 1986, p. 4r-5, Ex. 10. Reluctantly, and after vigorous questioning by the officers, Platt admitted that, on three or four occasions, he “[rode] the highway between the Harney Pond Canal and Indian Prairie [Canal] ... with a portable radio.” Id., p. 8. He implicates his two brothers, Dale, and Richard (Dickie). Dale rode with Nathan on lookout, and Dickie, who had keys to the gate, unlocked the gate to Claimants’ property. Id., pp. 12, 17. Platt admits, id. at p. 9, that he will lie to the officers unless he has some assurance that he will not be going to jail. This admission, it would seem, places the veracity of the entire statement in question. 14. Platt’s identification of the Defendant property during that interview is problematic. The following is the exact exchange during his interview: Sergeant Herne: ... where did the plane land? Platt: Next to the Indian Reservation. Sergeant Herne: But, not on Indian Reservation land, right? Platt: Um, hmm. Agent King: Whose land was it on? Sergeant Herne: East of 721, State ... County Road 721? Platt: Yeah. Sergeant Herne: East of ... between 721 and Indian Prairie Canal. Agent King: You know where it’s at? Sergeant Herne: Exactly, I already found it. I told you I did. Agent King: Running North and South? Sergeant Herne: Yeah. I told you I’d found it. Who owns that property? Platt: Scarbrough [sic]. Sergeant Herne: You sure it’s Scarbrough [sic]? Platt: Yep. Sergeant Herne: You sure it’s not Roger Jones? Platt: Um, hmm. It’s Scarbrough. Sergeant Herne: How did Alan Baker Parrot [sic] and his off load crew get into that property? Platt: Um, Tommy, man, you’re gonna make me incriminate somebody else____ Sergeant Herne: You want me to tell you how? Platt: Yeah. Sergeant Herne: How about the gate right there, by Ada Beck’s barn? On the dike? Platt: You’re wrong there. Sergeant Herne: Okay. So, correct me. Platt: God damn it, you’re gonna make me incriminate somebody. Sergeant Herne: I know. I can’t help that. I don’t have any control of that. Agent King: Dale [Platt], Dale works out there ... Platt: No, no hell he don’t neither, you’re wrong there. It’s another brother and I don’t want to call no names. Agent King: Wes? Sergeant Herne: I know who it is. Platt: Okay, then. Sergeant Herne: I told him this morning. Platt: If you know then, I ain’t got to say. It’s not Dale. See, I don’t want ya’ll throwing everything on me and Dale. Sergeant Herne: Dickey [sic]. It’s Richard Ivan Platt. Platt: Dickey [sic] was in it just as ... deep as we were, Tommy. Sergeant Heme: Buddy, who had the key to the gate that had to be opened each time? Is it Dale or Dickey? Platt: Dickey. Sergeant Herne: They going in that Roger Jones’s place? Platt: I don’t even know ... who in the hell is Roger Jones? Sergeant Herne: That’s Scarbrough [sic], where the tin barn is. Platt: No, they ain’t going there. They went in at the wooden gate at the bridge. Sergeant Herne: How did Dickey end up with a key to that gate? Platt: He’s the foreman. Sergeant Herne: Okay. Sergeant Herne: How much were you paid to do whatever is [sic] you done? Platt: Somewhere from five hundred ($500.00) to a thousand dollars ($1,000.00). Sergeant Herne: Each time? Platt: Yeah. Sergeant Herne: Who paid you? Platt: Alan. Platt: Dickey unlocked the gates and then he stayed by the gate and me and Dale road the highway. And, that’s all we did, Tommy. Id., pp. 10-12, 17. There was no mention whatsoever of Bill Wiersma in this statement. The statement about the amount of payment and its source is somewhat contradicted by an earlier report of Agent King. In that report, Agent King refers to a second statement obtained from “the confidential source, previously interviewed by Special Agent King on the 27th of June, 1986.” Report of Agent King, date dictated July 24, 1986, Ex. 80, p. 1. “The source related that he also recalled that Alan Parrott had said that he had paid Dale $100,-000 to $150,000 for the use of the airstrip and that amount was to be split between Dale [Platt], Buddy [Platt], and Wes.” Id. 15. Nathan “Buddy” Platt has equivocated about his initial statement on three occasions — most recently in the September 1993 deposition taken by the United States (not offered). In a proceeding in Georgia state court, Nathan Platt admitted that not everything that he told the Florida police on August 25, 1986, was true. Transcript of the Testimony of Nathan Buddy Platt, Jr. at Trial, State of Georgia v. Alan Baker Parrott, Case No. 89R-1393, Ex. 12. On appeal, Platt’s Florida state criminal sentence was overturned and his August 25, 1986, statement was ruled inadmissible by the Fourth District Court of Appeals. Nathan Platt v. State of Florida, 515 So.2d 1068 (4DCA 1987). 16. Platt arguably recanted his statement at a state court sentencing hearing when he stated that, “No, that night I wasn’t there. I said stuff in that — I was scared half to death, and I didn’t remember saying half of it when 1 read it. I couldn’t believe I said it.” Transcript of Sentencing before Judge Mel Grossman, February 13, 1987, page 18, Ex. 11. Even if the Court gives some credence to Mr. Platt’s contradictory statements, all that is established is that he was hired as a lookout on a state highway running in front of several large pieces of property. Platt’s identification of the property is not conclusive. According to the statement of August 25, 1986, pages 10 and 11: “[Q: Where did airplane land?] Next to the Indian Reservation____ [Sergeant Herne states: “I already found it____ Who owns that property?”] Scarbrough.” Platt may have simply been identifying the owner of an indicated plot of land, rather than independently alleging that the Scarborough land was intended for use as a landing site. Even after Platt’s statement, Sergeant Herne did not physically inspect the property because, according to his testimony, he “wasn’t sure [he] would have enough probable cause” to do so. Deposition of Sergeant Heme, page 154, Trial testimony of Sergeant Heme, November 8, 1993. 17. This Court’s Order of July 22, 1993, stated that: the Court has reviewed the transcript of [the sentencing] hearing and finds no indication that [Platt] specifically recanted his description of the alleged airstrip and the drug ring’s alleged use of the S.J. & W. property. The present determination by the Court that Platt’s identification of the property is inconclusive does not alter that earlier finding that Platt had not specifically recanted his description. 18. Both Sergeant Herne and Agent King have repeatedly said that Nathan Platt and Mr. Fernandez were the only sources of pertinent information. Deposition of Agent King, January 8-9, 1992, pages 44, 50, 51, 80-83, 87, 144, 192, 221, 255, 257, 259. Deposition of Agent King, April 30, 1992, pages 8, 10, 23-24. Deposition of Sergeant Heme, pages 41, 42, 48, 49. At no point does Nathan Platt implicate Bill Wiersma or any owner of the property in the drug importation alleged to be destined for the Defendant property. In summary, the evidentiary value of the statements attributed to Mr. Fernandez and Nathan Platt is very questionable. These witnesses were not produced to testify at trial. Implicit in the government’s presentation through the testimony of one or more of the law enforcement officers involved was their own concern, at one time or the other, about the value of the testimony of Nathan Platt and Lazaro Fernandez. 19. As the case developed, the United States began to distance its proof from its earlier reliance on Mr. Fernandez and Mr. Nathan “Buddy” Platt as the sources of information concerning the location of the property. At trial, the United States announced that James Russell (J.R.) Smith had identified the Defendant property as the site of a clandestine airstrip. J.R. Smith had been interviewed as a confidential informant by Officer Charles (Tom) Kent, of the Bro-ward Sheriff’s Office, in connection with other investigations in Broward County. Trial testimony of Officer Kent, October 12, 1993. During Officer Kent’s testimony at trial, he did not state that J.R. Smith was his confidential informant nor that J.R. Smith had identified the Defendant property. Agent King testified at trial that he did not learn about the identification of the S.J. & W. Ranch from Officer Kent. Trial testimony of Agent King, October 14, 1993. According to the trial testimony of Agent King, Officer Kent never disclosed the identity of Kent’s confidential informant to Agent King. However, Assistant United States Attorney Robert Rosenberg announced at trial that J.R. Smith was Kent’s confidential informant. Trial testimony of Agent King, October 12, 1993. On October 7, 1993, Agent King interviewed J.R. Smith, allegedly on a “blind lead”, at which time J.R. Smith spoke of the Scarborough property. Agent King then spoke with Officer Kent, who informed him that J.R. Smith had never before spoken about Scarborough. Trial testimony of Agent King, October 14, 1993. It is of interest to note that Officer Kent testified on October 12, 1993, that he had heard that on occasion Alan Parrott used the Indian Reservation. See, also, F.D.L.E. Report, dated March 4,1986, Ex. 2A to Deposition of Agent King, January 8, 1992. Agent King testified at trial that he did not write out his report of the J.R. Smith interview until October 12, 1993. Once again, it is difficult for the Court to assess the credibility of this late-found witness. In the United States’ Proposed Findings of Fact and Conclusions of Law, the government identifies “Buddy Platt, J.R. Smith, Deputy Sheriff Tommy Herne and Lazaro Fernandez” as the witnesses who identify the Defendant property, id., p. 23. The Court has already addressed the credibility of Mr. Nathan “Buddy” Platt, Mr. Smith, and Mr. Fernandez. Sergeant Herne’s alleged identification of the property is problematic, as will be developed in the following paragraphs. 21. Perhaps the most significant admission by the United States is that Sergeant Herne, a local law enforcement officer, initially noted that there were two other properties which might have been the intended landing site: the Brighton Seminole Indian Reservation and Beck’s Ranch. In fact, during the July 11, 1986, interview of Mr. Fernandez, Sergeant Herne appears to believe that the strip, as located by Mr. Fernandez on the missing map, is on Paul Beck’s property. Sergeant Herne also states that there is open pasture on the Beck property. Transcript of Interview of Mr. Fernandez, July 11, 1986, Ex. 6, pp. 47-48. Yet, in a deposition taken on January 9, 1992, Sergeant Herne states that Mr. Fernandez did not describe an area that Sergeant Herne thought was on the Beck property. Deposition of Sergeant Heme, January 9, 1992, p. 100. In that same January deposition, Sergeant Heme notes that there was a grass area on the Beck property that had been used to land agricultural spray planes, id. at pp. 75-76, and that there were areas on the Pearce property (adjoining S.J. & W. to the northeast) that could have been used as landing areas, id. at pp. 74-75. At trial, Sergeant Herne also testified as to a prepared grass “strip” of mowed land next to the Interceptor Canal, on Beck’s property, and that there were reports of suspicious lights over that property. See also, March hearing testimony of Bjorn Lustk, transcript of hearing, pp. 24-25, 272-74. At trial, both Sergeant Herne and Officer Thomas (of the Seminole Reservation police) testified as to reports of drug activity on the Indian Reservation. 22. No law enforcement officer ever physically inspected the Defendant property until August 1993, despite having discovered the alleged landing site as early as February 1986. Trial testimony of Agent King, October 13,1993. Agent King stated in his deposition of January 8-9, 1992, that he went to the scene of the crash with Sergeant Herne on February 27, 1986. Deposition of Agent King, January 8-9, 1992, page 35. Agent King later learned from Special Agent H. Lanier that the crash was connected to the Parrott smuggling operation. Id., page 43. Agent Lanier learned this information from James Watts, id., who knew nothing of any landing strip on the S.J. & W. property. Id., pages 44, 50-51. Watts received his information from Gus Ross — a member of the Alan Parrott smuggling organization who never spoke with law enforcement officers. Id., pages 49, 51. Agent King stated that the Defendant property had already become suspect after Sergeant Herne “pointed out the location of this strip initially to me on my first trip to the crash site on the 27th.” Id,., page 52. 23.According to Agent King’s deposition of January 8-9,1992, he and Sergeant Herne took aerial photographs of the site and noted tire tracks on the land within a month of February 27, 1986. Deposition of Agent King, January 8-9, 1992, page 59. The relevant photographs, none of which show tire tracks, are the subject of much dispute. Sergeant Heme’s affidavit of April 30, 1990, at paragraph 3, states that he was “familiar with a clandestine airstrip located on the [S.J. & W.] property, having made a personal observation.” During the Franks hearing in March 1993, Sergeant Herne and Agent King testified that they flew over the alleged airstrip on or about February 27, 1986, and that Agent King took more than 30 photographs of its alleged location on the parcel of S.J. & W. property that is adjacent to the Interceptor Canal (which separates the Defendant property from the Brighton Seminole Reservation). Order, July 22, 1993, p. 6. Sergeant Herne conceded at the hearing that none of the photographs show any tire tracks at all, much less the distinctive pattern made by an aircraft using tricycle landing gear. Id. Sergeant Herne says that he saw tracks, but cannot say when. He also stated that he didn’t think he had probable cause to enter the land. Deposition of Sergeant Heme, January 9, 1992, p. 154. 24. Another perplexing aspect of this evidence is that an enlargement of one of Agent King’s photographs clearly shows an excavation that was allegedly not begun on the property until at least June 1, 1986, according to the affidavit of the person who performed the excavation, Earl Beck; (Affidavit of Earl Beck, August 4,1992, Ex. 5 (formerly Ex. 8 at March hearing)). Claimants argue that these photographs must have been taken several months later, and note that Agent King’s reports prior to October 4, 1988, do not record this photographic journey and evidentiary discovery. The photographs clearly depict green fields, which Claimants allege to be impossible during the months of February and March. The dominant color of winter pastures in the region is brown, according to S.J. & W. witnesses. 25. As the Court noted in its Order of July 22, 1993, the photographs and other investigatory work done by Sergeant Herne and Agent King, while perhaps rendered difficult by the nature of the event and the geography involved, nonetheless left questions unresolved and spawned conclusions which were questionable. Although there may be plausible explanations for the discrepancy in the alleged dates of aerial observation, it is not necessary, in view of the other evidentiary conclusions of the Court, to further discuss the sufficiency of the photographs as evidence supporting probable cause. The Court is unable to conclusively determine that the airstrip has been correctly identified as being located on the Defendant property. The failure to originally isolate the Defendant property as the location of the airstrip at the very least raises a serious question as to whether the airstrip could have been located on the Defendant property- 26. In February 1986, the alleged airstrip was covered with aeschynomene, pangóla and smut grass. Trial testimony of Donald Jones, November 2, 1993; March hearing testimony of Toni Wiersma, transcript pp. 37-39, 87; March hearing testimony of Mar- shall Coker (fertilizer salesman), transcript p. 200; and March hearing testimony of T.J. Woodward, (fertilizer salesman), transcript p. 191; Live Plants/Photograph, Ex. 104 (A, B, C) and Photograph, Ex. 98 (D, E, F, H, I, J). In addition, the property contained bull holes, cabbage palm trees, hog rootings and cow trails. March hearing testimony of Toni Wiersma, transcript pp. 33, 87, 90; March hearing testimony of Bjorn Lusth, transcript p. 244; March hearing testimony of T.J. Woodward, transcript pp. 190-91; and March hearing testimony of Marshall Coker, transcript p. 202; Photograph, Ex. 98 (B, C, G, H, K) and Photograph, Ex. 99A. 27. The Court was fortunate to have the assistance of several aeronautical experts. For the Claimants, Douglas Stimpson (a Piper aviation expert), William P. Kelly (a former test pilot for Piper), and Russell McKnight (a crash investigator, who testified at the March hearing only). For the United States, Sean Knickerbocker (a pilot with U.S. Customs), Paul Kersten (a convicted drug pilot), and Richard Coxey (a pilot and crash investigator). Of these, Stimpson was the most impressive for his considerable knowledge of the technical specifications and capabilities of the specific model of plane involved in this incident. The Court found Mr. Stimpson’s testimony to be highly credible. Expert witness Mr. Kelly actually drove a truck over the field. He testified that the truck was “coming apart” at relatively low speeds (approximately 35 m.p.h.). Trial testimony of Kelley, October 29, 1993. The conclusion that I will draw from the several experts is that the Piper Navajo could not have landed on this field and then been capable of taking off again. The nose gear, which is critical to a successful landing and take off, would have broken at one time or the other. Trial testimony of Douglas Stimpson, October 14, 1993; March hearing testimony of Russell McKnight, transcript p. 343. A serious question as to the use of the land as a clandestine airstrip was presented by the expert testimony. This would be particularly true of a Navajo carrying several hundred pounds of cocaine. 28. Even if the land was entirely suitable for landing and take off of a Piper Navajo airplane, there still remains the question of access to the property for the off-load crew of a smuggling organization. The Defendant property, particularly the alleged landing strip, is separated from public access by several gates. There are two main access gates which allow entrance to the property. The flood control gate is the gate at the intersection of the Interceptor Canal and Road 721. The Corps of Engineers gate is at the intersection of State Road 78 and Indian Prairie Canal. In 1986, this gate was apparently constructed of wood. Sergeant Herne speaks of a gate off of State Road 78, while other witnesses, through Agent King, refer primarily to the gate off Road 721. 29. Mr. Fernandez mentions that there were “at least three gates, including the one right at the entrance” which were separating the road from the airstrip. Transcript of Interview of Mr. Fernandez, July 11, 1986, Ex. 6, p. 18. Again, this information came to Mr. Fernandez through someone in the smuggling operation. He also stated that, upon arriving at the Circle K store, the procedure was that he call one of three men, whose names he recalled as Dale, Buddy, or Wes. Id., p. 17. Mr. Fernandez believed that Dale was the foreman of the farm. Id., p. 52. Despite his apparent knowledge of the gates providing access to the Defendant property, in his testimony to a statewide grand jury on September 30, 1986, Mr. Fernandez denied ever being on the strip itself. “The closest I got was two gates inside the farm.” Grand Jury testimony of Mr. Fernandez, September 30, 1986, Ex. 39, p. 39. 30. Agent King testified at trial that Mr. Fernandez told him that on February 8, 1986, when Mr. Fernandez, Carlos Mejia and Herman Bray were on their way to look for the plane, they were advised by radio not to go to the crash site. Trial testimony of Agent King, October 12, 1993. Mr. Fernandez and Mr. Bray went to the Circle K while Mejia went on to the crash site. Upon Mejia’s return, they all proceeded along Road 721, and entered a dike, through a “flood control” gate. According to Agent King, these were Mr. Fernandez’ words in August of 1993, although Mr. Fernandez had never before used the phrase “flood control” gate. Agent King testified that Mr. Fernandez also told Agent King that entry to the field was gained by an unsecured, barbed wire gap gate located at the northwest corner of the property. Videotape, Ex. 110. There has never been a wire gap gate leading to S.J. & W. property. Trial testimony of Donald Jones, November 2, 1993. On the first day of trial, October 12, 1993, Agent King testified that Mr. Fernandez told him that he never made it to the actual strip but was stopped prior to the entrance to the third gate — perhaps coming from Road 78. See, also, Deposition of Mr. Fernandez, May 5, 1987, Ex. 42, pp. 128-29. However, access to the alleged airstrip can be gained by going through only one locked gate (the flood control gate) at Road 721 and the Interceptor Canal. U.S. Photograph, Ex. 20, 21; Claimant’s Ex. 89 (enlarged aerial map); Claimant’s Photograph, Ex. 94(h), Video, Ex. 110. Nathan “Buddy” Platt stated that the entrance to the strip was gained via a wooden gate at a bridge on Road 78. 31. The multiple references to gates, with varying degrees of specificity, lead the Court to conclude that there were gates which limited access to the property but that such gates may have been traversed by members of a drug smuggling organization. The foregoing detail is set forth principally to demonstrate the weakness in the government’s proof and the difficulties which it had in establishing its case and defenses. The complex of positions taken make it quite difficult for the Court to conclude who went where or if at all. B. Innocence of owners as a defense to forfeiture 32. The Court now shifts the factual inquiry from the question of proof of probable cause to a determination of the claim of innocence presented by the Claimants. The defendant property was quitclaim deeded from Blanche Scarborough to S.J. & W. Ranches, Inc., on March 3, 1979. Report of Agent King, date dictated September 8,1986, Ex. 82. S.J. & W. was incorporated in 1979. The corporation has continuously been held by no more than four individual shareholders, Blanche Scarborough (who died in 1981), Mildred Jones, Donald Jones, and Toni Jones Wiersma. Mrs. Scarborough’s estate is subject to outstanding taxes, which are now the responsibility of the remaining shareholders. From 1981 to the present, the corporate shares and offices have been apportioned as follows: Mildred Jones, President, 46% of shares; Donald Jones, Vice-President, 27% of shares; Toni Jones Wiersma, Secretary-Treasurer, 27% of shares. Mildred Jones is the daughter of Blanche Scarborough. Donald Jones and Toni Jones Wiersma are the son and daughter of Mildred Jones. 33.On or about September 13, 1988, the date of filing the forfeiture action, there existed a written lease between S.J. & W. Ranches, Inc. and Scarborough Ranch, a Florida partnership, for use of the land to conduct a commercial cattle business. At the same time, there existed a written lease between S.J. & W. Ranches, Inc. and Scarborough Ranch Nurseries, Inc., a Florida corporation, for use of the land as a nursery and commercial tree harvesting operation. Claimants’ Answer to Amended Complaint, filed Jan. 17,1991, pages 9-10, Trial testimony of Toni Wiersma, November 3, 1993. 34. The United States concedes that Mildred Jones, Toni Jones Wiersma, and Donald Jones had no knowledge of the alleged use of the property for landing drug aircraft. It is through Bill Wiersma that the government hopes to impute such knowledge to the Claimant corporation. There is no testimony to the effect that Wiersma was ever present to investigate the crash site. On September 30, 1988, Mr. Fernandez told Agent King that he was 80% sure that Bill Wiersma was on the Defendant property in a blue pickup truck during a visit by members of the drug smuggling operation. The identification of Bill Wiersma by Mr. Fernandez, an identification which seemed to improve in accuracy over the years, is not adequate proof of Wiersma’s involvement. Even assuming the veracity of Mr. Fernandez’s identification of Bill Wiersma, it is entirely plausible that Wiersma was on the property. Bill Wiersma testified that he is there every day and some evenings. Trial testimony of Bill Wiersma, November 2, 1993. None of Mr. Fernandez’s statements implicate Wiersma as having done anything criminal — he is implicated with simply sitting in a pickup truck. Moreover, since Mr. Fernandez’ recent statement offered through the testimony of Agent King — which is obviously hearsay — was offered to rebut the Claimant’s innocent owner defense, it is not admissible. United States v. 1012 Germantown Road, 963 F.2d 1496 (11th Cir.1992); United States v. 6109 Grubb Road, 886 F.2d 618, 622, reh’g en banc, denied, 890 F.2d 659 (3rd Cir.1989). 35. There is no evidence in the record showing that the corporation received any benefit from the alleged drug activity or any other such activity. The corporate officers testified that no such benefits were received. Tax records and accounting documents show no such benefits. Mrs. Toni Wiersma testified that she is going back to work, allegedly to earn additional income (as a teacher), with no proof from the government to the contrary. Estate tax obligations continue. 36. Sergeant Herne interviewed Bill Wiersma on August 26, 1986. Transcript of Interview with Bill Wiersma, August 26, 1986, Ex. Ill; see, also, Report of Agent King, Ex. 82, date dictated September 8, 1986 (referring to information received from Sergeant Herne). During this interview, Bill Wiersma told Sergeant Heme that he had no suspicion that the land was being used for drag smuggling, Transcript of Interview, p. 5. Wiersma also stated that Richard (Dickie) Platt is not a full time employee of S.J. & W., but that “when [Dickie Platt] works for me, he pretty well takes over the crew”, and that Bill Wiersma “hire[s] the crew and then [he] tell[s] Dickey [sic] what to do”. Id. at p. 7. Agent King’s report states that Sergeant Herne was told by Bill Wiersma that he and Richard Platt were “close friends”. Report of Agent King, Ex. 82, p. 2. The Court has read the pertinent portions of the transcript of Sergeant Heme’s interview with Bill Wiersma and, as there is no indication of such a statement about Bill Wiersma’s personal relationship with Richard Platt, rejects any such characterization of the relationship. 37. At trial Jerry Beck testified that he has a business partnership with Dickie Platt. Trial testimony of Jerry Beck, October 12, 1993. Jerry Beck has been the Clerk of the Glades County Court for seventeen years, and is the son of Ed Beck and brother of Paul Beck, who farms the family’s property near the S.J. & W. Ranch. 38.All of the Platt brothers worked as cowboys for Bill Wiersma. None was a full time employee of S.J. & W. Payments were made by S.J. & W. to the Platt brothers when and if they performed daily ranch hand work. While the three Platt brothers were apparently involved in helping the drug importation group and while Dickie Platt did day work on the ranch, it does not appear that he ever had a position of sufficient authority so that criminal conduct in which he was engaged could be attributed to the owners. Indeed, it is rather clear that he did not. He worked a total of 51 days in 1985,42 days in 1986, and 55-58 days in 1987 for S.J. & W. Deposition of Mildred Jones, read at trial on October 14,1993; Trial testimony of Toni Wiersma, November 4, 1993, Ex. 70. No indictments were ever issued as to Dickie Platt. Dale Platt worked only limited days for S.J. & W. and did not work at all prior to February 1986. Dale Platt worked one day in 1986 and 23-25 days in 1987. Trial testimony of Toni Wiersma, November 4, 1993, Ex. 71. No indictments ever issued as to Dale Platt, although he had previously served a jail sentence with Alan Parrott. Trial testimony of Agent King, October 12, 1993. Nathan “Buddy” Platt, Jr., was employed as a Correctional Officer by the Okeechobee County Sheriffs Department in early 1986. F.D.L.E. Report, typed July 28, 1986, Ex. 80. He worked only rarely for S.J. & W. and not at all prior to 1988. Trial testimony of Toni Wiersma, November 4, 1993, Ex. 72. Nathan Platt was arrested on October 6, 1986, Ex. 22, and pled guilty to the state charge of accessory after the fact to trafficking in cocaine. His five year sentence was reversed on appeal, as being an unjustifiable departure from the guideline recommendation of no state prison sentence. Nathan Platt v. State of Florida, 515 So.2d 1068 (4DCA1987). Nathan Platt was resentenced on February 10, 1988. Affidavit of Agent King, April 30, 1990, Ex. 1. 39. The United States introduced evidence of phone calls between the Platts and Bill Wiersma, which the United States asserts demonstrate a conspiracy to import controlled substances. There were no phone calls between Dickie Platt’s phone number and Bill Wiersma’s phone number. Trial testimony of Agent King, October 13, 1993, Ex. 85. Nathan “Buddy” Platt’s phone number called Bill Wiersma’s residence once, on March 21, 1986, for three minutes. Trial testimony of Agent King, November 4, 1993. Dale Platt’s phone number called Bill Wiersma’s phone on two occasions in November and December 1986. Ex. 85. Bill Wiersma’s phone number called Dale Platt once in December 1986. Taken collectively, the Court finds that these calls were so limited as to prove nothing. No one has directly (or indirectly by credible evidence) connected Bill Wiersma with the drug smuggling activity which allegedly occurred in early February 1986. It is therefore the conclusion of the Court that he was not involved in that activity. I conclude also that none of the owners were either directly or indirectly involved. II. CONCLUSIONS OF LAW A. Probable cause 1. Legal Standard Under 21 U.S.C. § 881(a)(7), property is subject to forfeiture under the following conditions: 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 manner or part, to commit, or to facilitate the commission of, a violation of this title 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. In this case, the United States claims that it has probable cause to believe the S.J. & W. property was being used to commit or facilitate the knowing or intentional distribution of cocaine in violation of 21 U.S.C. § 841(a) and § 846. The initial burden on the probable cause issue rests with the United States. To meet its burden, the United States must show a “‘reasonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspicion.’ ” United States v. $364,960, 661 F.2d 319, 323 (5th Cir. Unit B 1981), (quoting United States v. One 1978 Chevrolet Impala, 614 F.2d 983, 984 (5th Cir.1980)). Probable cause may be based “wholly on circumstantial evidence, and that evidence may include facts learned after the actual seizure.” United States v. $41,305, 802 F.2d 1339, 1343 (11th Cir.1986). However, the evidence must be gained prior to filing the forfeiture action. United States v. $191,910, 16 F.3d 1051 (9th Cir.1994); United States v. $91,960, 897 F.2d 1457, 1462 (8th Cir.1990); United States v. $14,500, 767 F.Supp. 1123 (M.D.Fla.1991). The forfeiture action in this case was filed on September 13, 1988. “In order to obtain a forfeiture, the government need only show probable cause that a substantial connection exists between the property identified for forfeiture and associated illegal drug activity.” United States v. 2204 Barbara Lane, 960 F.2d 126 (11th Cir. 1992) (affirming grant of summary judgment of forfeiture under § 881(a)(7) on basis of pleadings and unanswered requests for admissions). In addition to the Eleventh Circuit, the First, Fourth, and Eighth Circuits all hold that in order to establish probable cause for forfeiture under § 881(a)(7), the government must prove that the property had a “substantial connection” to the illegal activity. Some other appellate courts are divided as to exactly what the government must show in order to prove probable cause for forfeiture of real property under 21 U.S.C. § 881(a)(7). The Seventh Circuit has rejected the substantial connection test, and instead requires the government to show only that the real property had “more than an incidental or fortuitous connection” to the crime. Several circuits have declined to require a substantial connection test for forfeiture under § 881(a)(4), the provision from which the language in § 881(a)(7) is drawn. See, United States v. 1964 Beechcraft Baron Aircraft, 691 F.2d 725 (5th Cir.1982), cert. denied, 461 U.S. 914 [, 103 S.Ct. 1893, 77 L.Ed.2d 283] (1983); United States v. One 1974 Cadillac Eldorado Sedan, 548 F.2d 421, 423 (2d Cir.1977). One circuit has even refused to impose a substantial connection test under the stricter language of § 881(a)(6). See, United States v. $5,644,540, 799 F.2d 1357 (9th Cir.1986). United States v. 916 Douglas Avenue, 903 F.2d 490, 494, n. 5 (7th Cir.1990) (finding that sufficient nexus existed, i.e., nexus was “not incidental or fortuitous”, between house and illegal drug transaction to justify forfeiture), cert. denied, sub nom, Born v. United States, 498 U.S. 1126, 111 S.Ct. 1090, 112 L.Ed.2d 1194 (1991). Defining the parameters of the “connection” between the item sought to be forfeited and the illegal act has resulted in decisions which gave the United States broad avenues in establishing the existence of probable cause. Most courts have required that the government meet the same burden of proof to establish probable ■ cause in all types of forfeiture actions under § 881. United States v. Lot 9, Block 2 of Donnybrook Place, 919 F.2d 994, 997 (5th Cir.1990). The statute itself specifies, in paragraph (d), that the procedures relating to violations of the customs laws shall apply to forfeitures incurred under any of the provisions of § 881. Despite this apparent clarity, some courts have found it important to distinguish between the types of property or assets sought to be forfeited. For analytical purposes, the proof of probable cause is indeed similar, yet the facts connecting the purchase of real estate with illegal profits of a drug transaction (i.e., rendering property subject to forfeiture under 21 U.S.C. § 881(a)(4)) will necessarily entail different analyses than the facts establishing that a particular piece of real property was intended to be used as an airstrip for drug importation (i.e., rendering the property subject to forfeiture under' 21 U.S.C. § 881(a)(7)). a. Guidance from civil forfeiture actions under § 881(a), generally Some courts have applied a “substantial connection” test to forfeitures under § 881 without carefully analyzing the legislative history of the paragraph under which forfeiture is being sought. Although a court may not consider legislative history where a statute is clear on its face, Board of Governors