175 F.3d 1304 (11th Cir. 1999), 96-4035, United States v. 817 N.E. 29th Drive, Wilton Manors, Fla.

Docket Nº:96-4035, 96-4092.
Citation:175 F.3d 1304
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. 817 N.E. 29th DRIVE, WILTON MANORS, FLORIDA, together with all improvements, fixtures, furnishings and equipment thereon and therein, and all rents and profits derived therefrom, Defendant, Charles R. Howerin, Claimant-Appellant. United States of America, Plaintiff-Appellant, v. 817 N.E. 29th Drive,
Case Date:May 21, 1999
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1304

175 F.3d 1304 (11th Cir. 1999)

UNITED STATES of America, Plaintiff-Appellee,

v.

817 N.E. 29th DRIVE, WILTON MANORS, FLORIDA, together with

all improvements, fixtures, furnishings and

equipment thereon and therein, and all

rents and profits derived

therefrom, Defendant,

Charles R. Howerin, Claimant-Appellant.

United States of America, Plaintiff-Appellant,

v.

817 N.E. 29th Drive, Wilton Manors, Florida, together with

all improvements, fixtures, furnishings and

equipment thereon and therein, and all

rents and profits derived

therefrom, Defendant,

Charles R. Howerin, Claimant-Appellee.

Nos. 96-4035, 96-4092.

United States Court of Appeals, Eleventh Circuit

May 21, 1999

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David Slaton, Miami, FL, for Claimant.

Kendall Coffey, U.S. Atty., Linda Collins Hertz, Robert B. Cornell, Adalverto Jordan, Dawn Bowen, Asst. U.S. Attys., Miami, FL, Mark W. Lester, Asst. U.S. Atty., Ft. Lauderdale, FL, for Plaintiff-Appellant.

Appeals from the United States District Court for the Southern District of Florida.

Before TJOFLAT, BARKETT and MARCUS, Circuit Judges.

TJOFLAT, Circuit Judge:

These appeals arise out of the Government's attempt to obtain forfeiture of two parcels of land. The claimant, Charles Howerin, resisted the forfeiture. The district court split the difference and ordered forfeiture of one of the two parcels. The parties' appeals of that decision force us to confront two relatively uncharted areas of forfeiture law: (1) the appropriate definition of "property" under the relevant forfeiture statute, and (2) when a forfeiture

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constitutes an excessive fine in violation of the Eighth Amendment. Based on our resolution of those issues, we conclude that the Government is entitled to both parcels.

I.

Charles Howerin was arrested by city police in October 1991 for selling cocaine out of his home in Wilton Manors, Florida. He was convicted in Florida court on drug possession and trafficking charges. Subsequent to the state conviction, the United States brought an in rem action against Howerin's property seeking forfeiture pursuant to 21 U.S.C. § 881(a)(7) (1994). 1 Howerin filed a claim of ownership on the property, and then answered the Government's complaint. See Supplemental Rule for Certain Admiralty and Maritime Claims C(6). 2 His main defenses were as follows: (1) The defendant property consists of two parcels of land ("Lot 1" and "Lot 56"), and only one of the parcels (Lot 56) was used for criminal activity and thus only that parcel is subject to forfeiture; (2) the forfeiture of property valued at nearly $70,000 for drug sales totaling only $3,250 constitutes an excessive fine in violation of the Eighth Amendment; and (3) an action for the forfeiture of his property, after having been tried on the underlying drug offenses in state court, would constitute double jeopardy in violation of the Fifth Amendment.

The Government moved for summary judgment. The district court granted the motion as to Lot 56, but held that the Government had not shown a substantial connection between Lot 1 and the criminal activity and therefore denied the motion as to that parcel. After a bench trial, the district court again held that the Government had not shown the necessary connection between Lot 1 and the criminal activity, and entered final judgment in favor of Howerin. Both parties appeal.

II.

We begin with the Government's appeal. The Government argues that Lot 1 and Lot 56 were a single piece of property, and thus the entire property should have been forfeited. We agree.

The dispute in this case centers on the proper interpretation of 21 U.S.C. § 881(a)(7), which states that "[a]ll real property ... 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 subchapter" shall be subject to forfeiture. The Government contends that the word "property" in the statute should be defined by reference to the deed used to convey the land to the owner. Thus, if a given area of land is used to facilitate the commission of a drug crime, forfeiture should be granted as to all of the land included in the deed conveying that area of land. Howerin contends that "property" should be defined by reference to descriptions in local land records. Thus, if a given area of land is used to facilitate the commission of a drug crime, forfeiture should be granted as to all of the land included in the descriptive unit (for example, a lot in a subdivision) containing that area of land.

Each side has cases from other circuits that support its position. The Government's position is supported by the Fourth and Eighth Circuits. 3 See United States v.

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Bieri, 21 F.3d 819, 824 (8th Cir.1994) (holding that the deed, and not the historical description of the land, determines what land constitutes the forfeitable "property"); United States v. Reynolds, 856 F.2d 675, 677 (4th Cir.1988) (holding that scope of property subject to forfeiture is defined by "the instrument creating an interest in the property"). Howerin's position is supported by the Second Circuit. See United States v. 19 & 25 Castle St., 31 F.3d 35, 41 (2d Cir.1994) (holding that "parcels of property separately described in the local land records, whether or not conveyed to an owner by a single instrument, should be considered separately for forfeiture purposes" except in certain unusual circumstances).

The question is one of first impression in this court. 4 We feel that the technical approaches offered by the parties, although they have the advantage of ease of application, are unjustly arbitrary. Under either approach, two identical pieces of land would be treated very differently under forfeiture law depending on the timing of the conveyance or the lines on a subdivision map. Furthermore, each of these approaches encourages opportunistic behavior by drug dealers--a sophisticated dealer could either purchase his land in numerous small parcels or seek to purchase land in areas with small lot divisions.

We instead conclude that the definition of "property" under 21 U.S.C. § 881(a)(7) must be determined on a case-by-case basis. Specifically, the court must examine the character of the land on which the criminal activity took place, and determine whether all of the land sought by the Government can be considered to be of that same character. For instance, if the Government seeks forfeiture of farmland used for growing marijuana, it may acquire all of the land that can reasonably be considered part of the farm. 5 If, however, the claimant owns two farms, the Government may acquire only the farm on which marijuana was grown--even if the farms are adjacent and were conveyed in a single deed. Likewise, if the Government seeks...

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