954 F.2d 29 (2nd Cir. 1992), 981, In re U.S. v. Certain Real Property and Premises Known as 38 Whalers Cove Drive

Docket Nº:981, Docket 90-6268.
Citation:954 F.2d 29
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. CERTAIN REAL PROPERTY AND PREMISES KNOWN AS 38 WHALERS COVE DRIVE, BABYLON, NEW YORK, Defendant, Edward J. Levin, Claimant-Appellant.
Case Date:January 03, 1992
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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954 F.2d 29 (2nd Cir. 1992)

UNITED STATES of America, Plaintiff-Appellee,



DRIVE, BABYLON, NEW YORK, Defendant, Edward J.

Levin, Claimant-Appellant.

No. 981, Docket 90-6268.

United States Court of Appeals, Second Circuit

January 3, 1992

Argued Feb. 14, 1991.

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[Copyrighted Material Omitted]

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Richard B. Lind, New York City, for claimant-appellant.

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Stephen J. Riegel, Asst. U.S. Atty. for the Eastern District of New York (Andrew J. Maloney, U.S. Atty., Robert L. Begleiter, Asst. U.S. Atty., of Counsel), Brooklyn, N.Y., for plaintiff-appellee.

Before PIERCE, WINTER and WALKER, Circuit Judges.

WALKER, Circuit Judge:

Claimant Edward J. Levin appeals from a judgment of forfeiture entered pursuant to 21 U.S.C. § 881(a)(7) on October 4, 1990, in a civil proceeding in the Eastern District of New York (Eugene H. Nickerson, Judge ). That judgment deprived Levin of his residence, which is located at 38 Whalers Cove Drive, Babylon, New York. We find that the forfeiture was authorized by the statute and not prohibited by substantive due process. Levin also argues that the forfeiture must be classified as punishment under United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), and that as punishment, the forfeiture violates the Fifth and Eighth Amendments. While we agree that Halper appears to require us to presume the forfeiture to be punishment and to afford the government an opportunity to prove otherwise, the forfeiture, even if seen as punishment, does not violate Levin's constitutional rights. Accordingly, we affirm the district court's judgment of forfeiture.


This case concerns the forfeiture of Levin's personal residence, a condominium located at 38 Whalers Cove Drive, Babylon, New York. The condominium, purchased in 1977, is now worth approximately $145,000. Levin has an equity interest in the property valued at approximately $68,000; mortgages outstanding on the property total $77,000.

In July, 1988, Levin twice sold cocaine inside the condominium to a confidential informant for a total sum of $250. The quantity of the sale is disputed but in any event amounts to no more than 2 1/2 grams. The record indicates, and the government does not dispute, that the confidential informant requested that the first sale take place inside the condominium. The second sale, on July 20, was also made in Levin's home--it is unclear who specified the location. (We are not here concerned with a third small sale which took place outside the condominium.) The confidential informant telephoned Levin frequently after the sales to request that Levin make further sales. Levin declined.

Levin was arrested by the Suffolk County Police on October 6, 1988 on charges of criminal sale of a controlled substance based on the above transactions. The condominium was searched. No drugs, weapons, large amounts of cash, drug paraphernalia, or drug records were discovered.

Subsequent to his arrest, Levin began cooperating with law enforcement authorities, and later pleaded guilty in the Supreme Court of the State of New York for the County of Suffolk to attempted criminal sale of a controlled substance. He received a probationary sentence and a small fine.

On November 10, 1988, the United States government instituted an in rem forfeiture action against Levin's condominium, pursuant to 21 U.S.C. § 881(a)(7). On November 14, 1988 the government obtained an ex parte seizure warrant for the premises. Pursuant to the warrant, the United States Marshals Service seized the property, simultaneously searching it extensively. No indication of narcotics activity was found.

After timely filing a claim of ownership to the property, Levin moved to dismiss the complaint. The Government cross-moved for summary judgment of forfeiture.

In a thoughtful, well-written opinion filed September 20, 1990, reported at 747 F.Supp. 173 (E.D.N.Y.1990), Judge Nickerson denied Levin's motion to dismiss and granted the government's cross-motion for summary judgment of forfeiture. The district court ruled that the property was properly subject to forfeiture pursuant to the terms of 21 U.S.C. § 881(a)(7). The district court also rejected Levin's arguments that the application of the forfeiture provision in his case violated the Fifth and

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Eighth Amendments to the United States Constitution. Judgment of forfeiture was entered.

Levin then filed this appeal.


Levin raises four arguments: (1) the forfeiture is not authorized under the statute, 21 U.S.C. § 881(a)(7); (2) the forfeiture violates substantive due process; (3) the Double Jeopardy Clause of the Fifth Amendment prohibits the forfeiture; and (4) the Eighth Amendment prohibits the forfeiture.

  1. Forfeiture under 21 U.S.C. § 881(a)(7)

    We turn first to the statutory argument. 21 U.S.C. § 881(a)(7) provides for the forfeiture of 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 the narcotics laws punishable by more than one year's imprisonment. As we observed in United States v. 141st Street Corp., 911 F.2d 870, 878 (2d Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1017, 112 L.Ed.2d 1099 (1991), "Congress intended forfeiture to be a powerful weapon in the war on drugs." As such, the statute is broadly drafted to reach a wide array of property which may be used to accomplish illegal purposes. Levin contends, however, that the statute must be read to require the proving of a "substantial connection" between the property and the crime. We disagree.

    In United States v. Premises & Real Property at 4492 S. Livonia Rd., 889 F.2d 1258, 1269 (2d Cir.1989), reh'g denied, 897 F.2d 659 (1990), we explicitly rejected this argument, stating that the statute requires only a "nexus" between the drug activity and the property. Here, the drug activity was sufficiently connected with the property to bring the property within the purview of the statute. As a situs for the sales, the property "facilitated" them by permitting them to be conducted in an atmosphere of relative privacy. See United States v. Premises Known as 3639-2nd St., N.E., 869 F.2d 1093, 1096 (8th Cir.1989), reh'g denied, 1989 WL 19595, 1989 U.S.App. LEXIS 5212 (1989). We note further that the statute permits forfeiture to be predicated upon only a small quantity of drugs. See also United States v. One 1986 Mercedes Benz, 846 F.2d 2, 5 (2d Cir.1988) (per curiam ). We therefore agree with the district court that the property was subject to forfeiture under the terms of the statute.

  2. Substantive Due Process

    Levin next argues that the civil forfeiture of his residence violates substantive due process. Substantive due process protects the individual "against arbitrary action[s] of government," Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986) (citation omitted). We disagree with Levin here as well. The Supreme Court has long held that a forfeiture of property used for illegal purposes may be deemed unduly oppressive only when the owner of the forfeited property is innocent of the wrongful activity, uninvolved and unaware of it, and has done "all that reasonably could be expected to prevent the proscribed use of his property." Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 689, 94 S.Ct. 2080, 2095, 40 L.Ed.2d 452, reh'g denied, 417 U.S. 977, 94 S.Ct. 3187, 41 L.Ed.2d 1148 (1974). Similarly, in United States v. One Tintoretto Painting Entitled "The Holy Family with St. Catherine & Honored Donor", 691 F.2d 603 (2d Cir.1982), we found that due process concerns were raised by the forfeiture of a painting only because the owner arguably acted " 'in good faith and without negligence.' " 691 F.2d at 607 (quoting United States v. One 1936 Model Ford V-8 DeLuxe Coach, 307 U.S. 219, 236, 59 S.Ct. 861, 869, 83 L.Ed. 1249 (1939)).

    Here, Levin committed a crime inside the condominium. Even if the informant was responsible for suggesting the condominium as the site of the drug transaction, Levin can hardly be said to have done everything possible to prevent the property's use for illegal purposes. Under Calero-Toledo,

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    the forfeiture therefore does not offend substantive due process.

  3. Other Constitutional Arguments: Fifth Amendment Double Jeopardy and Eighth Amendment

    1. Classifying Civil Sanctions as Punishment

      Levin's arguments that the forfeiture violates the Double Jeopardy Clause of the Fifth Amendment and the Eighth Amendment's bar on Cruel and Unusual Punishment and Excessive Fines are predicated upon his contention that the forfeiture is in reality a criminal penalty and, as such, is subject to constitutional limitations on punishment. See generally Pratt & Petersen, Civil Forfeiture in the Second Circuit, 65 St. John's L.Rev. 653, 668-70 (1991) (discussing "disturbing implications" of courts' failure to regard civil forfeiture as punishment). He argues that the forfeiture of his $68,000 interest in the condominium--and the resultant loss of his home--as a consequence of a sale of $250 worth of cocaine must be seen as punishment, since it, or at least some part of it, cannot be said to serve proper civil purposes.

      Levin's point here is not that...

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