U.S. v. Certain Real Property 566 Hendrickson Blvd., Clawson, Oakland County, Mich.

• Decision Date: 26 February 1993
• Docket Number: No. 92-1220,92-1220
• Citation: 986 F.2d 990
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. CERTAIN REAL PROPERTY 566 HENDRICKSON BOULEVARD, CLAWSON, OAKLAND COUNTY, MICHIGAN, Defendant, Leonard Willis, Claimant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 990

986 F.2d 990

UNITED STATES of America, Plaintiff-Appellee, v. CERTAIN REAL PROPERTY 566 HENDRICKSON BOULEVARD, CLAWSON, OAKLAND COUNTY, MICHIGAN, Defendant, Leonard Willis, Claimant-Appellant.

No. 92-1220.

United States Court of Appeals, Sixth Circuit.

Argued Jan. 28, 1993.

Decided and Filed Feb. 26, 1993.

Jennifer J. Peregord (argued and briefed), Office of the U.S. Atty., Detroit, MI, for U.S.

Alvin C. Sallen (argued and briefed), Southfield, MI, for Leonard Willis.

Before: KENNEDY and GUY, Circuit Judges; and BROWN, Senior Circuit Judge.

KENNEDY, Circuit Judge.

Claimant-defendant Leonard Willis ("claimant") appeals the order of the District Court granting the government's motion for summary judgment and directing forfeiture, pursuant to 21 U.S.C. § 881(a)(7), of certain real property being used to facilitate the manufacture and distribution of controlled substances. On appeal, Willis argues that the forfeiture order must be reversed because (1) the District Court lacked jurisdiction to adjudicate the forfeiture proceeding; (2) the grant of summary judgment to the government violated his rights to due process and equal protection as well as his Fifth Amendment right against self-incrimination; and (3) the District Court erred in ruling that Eighth Amendment principles of proportionality have no place in civil forfeiture proceedings. For the reasons that follow, we affirm.

I.

The record before the District Court disclosed the following as the probable cause for the seizure. In early 1991, the claimant began remodeling the attic of his home at 566 Hendrickson in Clawson, Michigan, in order to cultivate marijuana plants there. By March 2, the renovations had been completed and defendant obtained a number of marijuana starter plants from an associate. Three days later, on March 5, 1991, the claimant and his wife, Penny Willis, had an argument regarding the marijuana plants in the attic. After the argument, the claimant removed approximately forty (40) marijuana plants from the attic, placed them in the trunk of his car, and drove away.

Immediately thereafter, Penny Willis contacted the Clawson Police Department. Mrs. Willis was taken from the home and placed into protective custody. ¹ She informed the police that her husband had converted the attic area in the couple's home into a "grow room" for marijuana cultivation. Based upon Mrs. Willis' statements to the police regarding her husband's activities, a state search warrant was issued on March 5, 1991, by a Magistrate in the 52-4 District Court, Oakland County, State of Michigan. That same day, officers of the Clawson Police Department executed this search warrant at the claimant's Hendrickson Blvd. home.

Upon entering the attic, the officers observed a marijuana greenhouse. They proceeded to seize from the premises twenty-seven (27) black plastic plant pots, two of which contained marijuana plants; plant food; seedling starter kits; grow lights; potting soil; black plastic irrigation pipes; a fan; and a twenty-four (24) hour timer. Subsequently, the Clawson Police Department requested assistance in a civil in rem forfeiture from the Detroit Drug Enforcement Administration against the claimant as to the real property located at 566 Hendrickson Blvd.

On March 12, 1991, the government filed a complaint seeking forfeiture of the Hendrickson Blvd. property pursuant to 21 U.S.C. § 881(a)(7) ² on the grounds that the property had been used or was intended for use to facilitate violations of the country's drug laws. Claimant filed a verified claim to the property, and a title search (performed by a United States Marshal) revealed that title was held by the claimant pursuant to a quit claim deed executed on February 11, 1983.

During discovery, claimant's deposition was taken. While the claimant confirmed he was the owner of the Hendrickson property, he asserted his Fifth Amendment privilege (due to a pending state criminal proceeding on charges of manufacturing marijuana) in response to all questions regarding the attic of the house, the items found there, or his activities with respect to use, receipt or intended cultivation of marijuana.

On August 1, 1991, the government moved for summary judgment and shortly thereafter, the claimant cross moved for summary judgment. After finding the facts to be undisputed and that those facts established that the claimant had taken substantial steps to transform the attic area of the property into a growing room for marijuana, the District Court granted the government's motion. The court found that the government had satisfied its burden of establishing probable cause to believe the property was subject to forfeiture and that the claimant had thereafter failed to carry his burden of demonstrating the forfeiture was improper. The court further found that the principle of proportionality has no place in a civil in rem forfeiture proceeding. This timely appeal followed.

II.

As a threshold matter, we must decide whether the District Court properly exercised jurisdiction in rem over the home. We may raise such a jurisdictional question on our own motion. See, e.g., United States v. One 1985 Cadillac Seville, 866 F.2d 1142, 1145 (9th Cir.1989); Allen v. Secretary of Health and Human Services, 781 F.2d 92, 94 (6th Cir.1986) (with an issue involving subject matter jurisdiction, this Court must satisfy itself of its own jurisdiction and that of the District Court without regard to whether the issue was preserved). A federal forfeiture action under 21 U.S.C. § 881 is an in rem action. See One 1985 Cadillac Seville, 866 F.2d at 1145. A Michigan statutory forfeiture action against defendant property pursuant to the Michigan Public Health Code likewise is in rem. In re Forfeiture of $15,232, 183 Mich.App. 833, 838, 455 N.W.2d 428 (1990); People v. United States Currency, 158 Mich.App. 126, 404 N.W.2d 634 (1986). The basis of claimant's argument that the District Court lacked jurisdiction is the well-settled principle that a court cannot exercise jurisdiction over a res that is already subject to the in rem jurisdiction of another court. See Penn General Casualty Co. v. Pennsylvania, 294 U.S. 189, 195, 55 S.Ct. 386, 389, 79 L.Ed. 850 (1935); United States v. Winston-Salem/Forsyth County Bd. of Educ., 902 F.2d 267, 271 (4th Cir.1990); United States v. $79,123.49 in United States Cash and Currency, 830 F.2d 94, 96 (7th Cir.1987). According to this rule, the first court to exercise in rem jurisdiction over the res exercises jurisdiction to the exclusion of a second court that later attempts to proceed against the same res. United States v. One 1986 Chevrolet Van, 927 F.2d 39, 44 (1st Cir.1991). Although he did not raise the issue in the District Court, the claimant now argues that the state court acquired exclusive jurisdiction by virtue of issuing the search warrant (executed by state police) that procured the seized home, and, more importantly, that state forfeiture proceedings had commenced prior to the federal forfeiture proceeding. We find both contentions unpersuasive.

First, the State of Michigan never instituted a forfeiture action against the claimant's home. Claimant received a notice that his property had been seized by the Clawson Police Department pursuant to Mich.Comp.Laws § 333.7522. Despite claimant's contention to the contrary, this "Notice of Seizure and Intention to Forfeit and Dispose of Property," issued pursuant to Mich.Comp.Laws § 333.7523(1)(a), does not constitute the commencement of a state forfeiture proceeding.

In addition to providing notice of the seizure to the property owner, Michigan law also requires that the "seizing agency" immediately notify the county prosecutor of the seizure. Mich.Comp.Laws 333.7523(1)(b). Also, a claimant to the property must file a claim and cost bond, after which the prosecutor must "promptly institute forfeiture proceedings" in state court. Mich.Comp.Laws 333.7523(1)(c) (emphasis added). While personal property may be forfeited automatically where no claim or cost bond is filed within twenty (20) days, Michigan law provides that title to real property subject to forfeiture "shall be determined by a court of competent jurisdiction." Mich.Comp.Laws 333.7523(1)(d), (3). Therefore, it is the filing of the forfeiture complaint in the state court which brings the res within the jurisdiction of the state courts. We reject the contention that receipt of "notice of seizure" from the seizing agency translates into the state court's exercise of jurisdiction over the claimant's real property. See People v. Humphrey, 150 Mich.App. 806, 814, 389 N.W.2d 494 (Mich.App.), appeal denied, 426 Mich. 862 (1986) (filing of petition of forfeiture gives Wayne County Circuit Court jurisdiction over property to the exclusion of other local courts).

In the instant case, no claim or cost bond was ever filed by the claimant with the state and no petition for forfeiture was ever filed in the state courts. Instead, six (6) days after the claimant received notice of seizure, the federal government adopted the seizure and initiated forfeiture proceedings by filing a forfeiture complaint in the District Court for the Eastern District of Michigan. ³ Thus, the District Court was the only court attempting to exercise in rem jurisdiction over the claimant's home, and therefore, properly exercised jurisdiction. See United States v. Twelve Thousand, Three Hundred Ninety Dollars ($12,390.00), 956 F.2d 801 (8th Cir.1992) (District Court had jurisdiction over cash where federal official was given res voluntarily by state officials and initiated federal forfeiture proceeding and no state forfeiture proceeding ever commenced); One 1986 Chevrolet Van, 927 F.2d at 44 (District Court properly exercised jurisdiction over the claimant's van where the state never instituted a forfeiture action against the van and this conclusion not altered by the fact the van was seized following a search conducted...