U.S. v. 817 N.E. 29th Drive, Wilton Manors, Fla., s. 96-4035
| Citation | 175 F.3d 1304 |
| Decision Date | 21 May 1999 |
| Docket Number | 96-4092,Nos. 96-4035,s. 96-4035 |
| Parties | 12 Fla. L. Weekly Fed. C 861 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. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
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.
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 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.
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.
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 Bieri, 21 F.3d 819, 824 (8th Cir.1994) (); United States v. Reynolds, 856 F.2d 675, 677 (4th Cir.1988) (). 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) ().
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 forfeiture of commercial real estate used as a front for drug distribution, it may acquire all of the land that can reasonably be considered part of the front business. Again, if the claimant owns two businesses, and only one is used for criminal purposes, only that business is to be forfeited. While deeds and local land records will undoubtedly be probative evidence in this inquiry, they will not be conclusive.
This test fits well with the conceptual underpinnings of forfeiture; the thing used in the commission of the offense--for example, a farm or a business--is the thing that is surrendered to the Government. This test also fits well with common-sense notions of property--one speaks of owning a "farm," a "house," a "business," and so forth; one does not speak in deed-like terms of owning "the west 118 feet of the east 621 feet of Lot 56, except the west 61 feet of...." On its face, a case-by-case test of this sort might appear to introduce too much ambiguity into the law of forfeiture. In the overwhelming majority of cases, however, the test should be simple to apply.
This is one of those simple cases. The character of the land on which the cocaine sales took place is undisputedly residential. Lot 1 was part of the residence--namely, the front yard. 6 Lot 1 was therefore subject to forfeiture along with Lot 56.
We now turn to Howerin's appeal. Howerin's first contention is that the forfeiture of his property constitutes an excessive fine in violation of the Eighth Amendment. To sustain his contention, he must demonstrate that the forfeiture is (1) a fine and (2) excessive. As to the first element, civil in rem forfeitures have traditionally been considered nonpunitive and thus not "fines" for Eighth Amendment purposes. See United States v. Bajakajian, 524 U.S. 321, 118 S.Ct. 2028, 2035, 141 L.Ed.2d 314 (1998). The Supreme Court, however, has recently held that forfeiture under 21 U.S.C. § 881(a)(7)--the forfeiture statute involved in this case--constitutes a punitive fine and is therefore limited by the Eighth Amendment's Excessive Fines Clause. 7 See Austin v. United States, 509 U.S. 602, 622, 113 S.Ct. 2801, 2812, 125 L.Ed.2d 488 (1993).
Given that the forfeiture of Howerin's property constitutes a fine, the next question is whether the fine is excessive. A fine is excessive "if it is grossly disproportional to the gravity of a defendant's offense." Bajakajian, 524 U.S. at ----, 118 S.Ct. at 2036. Translating the gravity of a crime into monetary terms--such that it can be proportioned to the value of forfeited property--is not a simple task. Fortunately for us, this task has already been performed by two very competent bodies. The first is Congress, which, in enacting criminal laws, has specified the maximum permissible fine for a given offense. Because Congress is a representative body, its pronouncements regarding the appropriate range of fines for a crime represent the collective opinion of the American people as to what is and is not excessive. Given that excessiveness is a highly subjective judgment, the courts should be hesitant to substitute their opinion for that of the people. 8 See id. at ----, 118 S.Ct. at 2037 (...
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