U.S. v. Milbrand

• Decision Date: 21 June 1995
• Docket Number: D,No. 1242,1242
• Citation: 58 F.3d 841
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marcia MILBRAND, Claimant-Appellant, and The Premises and Real Property with Buildings, Appurtenances and Improvements at 731 Gabbey Road, Pembroke, New York, that is, all that Tract or Parcel of Land, Situate in the Town of Pembroke, County of Genesee and State of New York, and more Particularly Described in a Certain Deed Recorded in the Genesee County Clerk's Office in Liber 524 of Deeds at , Defendant. ocket 94-6254.
• Court: U.S. Court of Appeals — Second Circuit

Page 841

58 F.3d 841

UNITED STATES of America, Plaintiff-Appellee, v. Marcia MILBRAND, Claimant-Appellant and The Premises and Real Property with Buildings, Appurtenances and Improvements at 731 Gabbey Road, Pembroke, New York that is, all that Tract or Parcel of Land, Situate in the Town of Pembroke, County of Genesee and State of New York and more Particularly Described in a Certain Deed Recorded in the Genesee County Clerk's Office in Liber 524 of Deeds at Page 167, Defendant.

No. 1242, Docket 94-6254.

United States Court of Appeals Second Circuit.

Argued March 22, 1995.

Decided June 21, 1995.

James P. Kennedy, Jr., Asst. U.S. Atty., Buffalo, NY, (Patrick H. NeMoyer, U.S. Atty. for the W.D. of N.Y., Buffalo, NY, on the brief), for plaintiff-appellee.

Margot S. Bennett, Buffalo, NY, for claimant-appellant.

Before: OAKES, KEARSE and LEVAL, Circuit Judges.

KEARSE, Circuit Judge:

Claimant Marcia Milbrand ("Milbrand" or "claimant"), the owner of property located at 731 Gabbey Road, Pembroke, New York (the "property" or "farm"), appeals from a judgment entered in the United States District Court for the Western District of New York following a bench trial before Richard J. Arcara, Judge, ordering the forfeiture of the defendant property to the United States pursuant to 21 U.S.C. Sec. 881(a)(7) (1988), as a result of the use of the property by her son Mark Milbrand ("Mark") to grow marijuana. On appeal, Milbrand contends principally (1) that the district court erred in rejecting her defense that she was an innocent owner, and (2) that the forfeiture violated the Excessive Fines Clause of the Eighth Amendment. For the reasons below, we reject her contentions and affirm the decision of the district court.

I. BACKGROUND

The land in question, an 85-acre wooded parcel in Pembroke, New York, was purchased by Mark in January 1985 for $26,000 cash; most of that money was supplied by Milbrand. In December 1986, Mark conveyed the property to Milbrand for one dollar. Between 1986 and 1990, a house was constructed on the land at an estimated cost of $40,000. The property is not Milbrand's primary residence; she lives some 10-15 miles away in Depew, New York.

In August 1990, law enforcement agents conducted a consensual search of the property. They found a total of 1,362 marijuana plants growing on and around the farm, 845 of them on the property itself. Mark told the agents he kept some of his marijuana on the adjacent property "because he did not want to get caught with marijuana on his property." (Hearing Transcript, January 14, 1993, at 54.) Less than 500 feet north of the house, 650 small "starter" marijuana plants were found. A garden hose extended from the house to four plots containing a total of 180 larger marijuana plants; 12 large plants were found in a vegetable garden 80-90 feet east of the house. Inside a barn located 140 feet from the house, 183 harvested marijuana plants were found drying along the wall.

Inside the house, the agents found in Mark's bedroom a loaded revolver in a dresser drawer and two other loaded firearms under the bed. A film canister containing marijuana seeds was found on top of a second dresser, and an electronic seed separator was found in the closet. In a cupboard accessible from both the kitchen and the dining room, a small cellophane bag containing marijuana was discovered, and inside a hutch in the dining room several packages of cigarette rolling paper and a silver marijuana pipe were found. Canisters containing marijuana seeds labeled by year, size, quality, and height were found in the basement.

Mark was convicted in state court, after a plea of guilty, of criminal possession of marijuana. The United States commenced this action in the district court seeking forfeiture of the defendant property pursuant to, inter alia, 21 U.S.C. Sec. 881(a)(7). Milbrand filed a claim to the property and contended that the property was not subject to forfeiture because she owned it and was innocent of any wrongdoing. She also contended that a forfeiture of the property would violate the Excessive Fines Clause of the Eighth Amendment.

In January 1993, the district court held a six-day bench trial and heard testimony from Milbrand and law enforcement agents. One agent testified that Mark had previously been arrested in 1980 for growing marijuana while living in Milbrand's residence. In connection with that arrest, officers executed a search warrant at Milbrand's home; in her garage, they found 1,000 containers of marijuana seeds; in her basement, they found marijuana plants, packaging material, and plant lights. In Mark's bedroom in Milbrand's home, they found in plain view, marijuana, marijuana packaging material, scales, photographs of Mark standing next to tall marijuana plants, and books on growing marijuana. At least one of the books had a picture of a marijuana plant with the word "Marijuana" on the cover. Another agent testified that at the time of the search of the property at issue here, Milbrand told him "that she was aware that Mark had a problem with marijuana, that he had been arrested several years prior for growing marijuana at her house in Depew, and she told me that Mark--or that they built the farm so that Mark would have a place to do his farming." (Hearing Transcript, January 14, 1993, at 82.)

As to the property at issue here, Milbrand testified that she visited the farm once a week to cook, clean, and do her son's laundry, but that she did not have knowledge of her son's marijuana farming. Although admitting that she had gone into cabinets and drawers where the police later discovered marijuana, drug paraphernalia, and a handgun, she testified that she did not see those items.

In a Decision and Order dated August 1, 1994 ("Decision"), the district court denied Milbrand's claim. Crediting the testimony of the law enforcement officers, the court expressly found that Milbrand's testimony was not wholly credible, stating, inter alia, that her "demeanor indicated that she was shading the truth on certain matters." Id. at 10. The court concluded that the defendant property was forfeitable, finding that the property had been used to facilitate a narcotics felony, and that Milbrand was not an innocent owner as she

would have to have been blind not to have been aware of her son's marijuana activities, or would have to have consciously and purposefully ignored signs of such activities.

The evidence clearly established that [Mark]'s involvement with marijuana was so substantial and the evidence of that involvement so pervasive, both inside and outside the house, that it is difficult for the Court to believe that claimant was not aware of it. Her testimony to the contrary is simply not credible. In addition, the Court finds that claimant was well aware of her son's marijuana activities dating back to at least 1980 and his prior arrest.

Id. at 21.

The district court also rejected Milbrand's excessive-fines contention, stating, inter alia, that "[t]his is not a case where a small amount of drugs was found in a discrete part of the defendant property on one single occasion. To the contrary, [Mark] used the entirety of the defendant property to further his advanced drug enterprise." Id. at 23.

II. DISCUSSION

On appeal, Milbrand argues that the district court erred in rejecting her innocent-owner defense and her Eighth Amendment excessiveness contention. We reject both arguments.

A. The Innocent-Owner Defense

Section 881(a)(7) of Title 21 provides that a parcel of real property that has been used to commit or to facilitate the commission of a narcotics felony prohibited by subchapter 1 of Chapter 13 of 21 U.S.C. (Secs. 801-904) is forfeitable to the United States, unless the owner can establish a degree of innocence:

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.

21 U.S.C. Sec. 881(a)(7); see United States v. Certain Real Property and Premises, Known as 890 Noyac Road, 945 F.2d 1252, 1255 (2d Cir.1991); United States v. Premises and Real Property at 4492 South Livonia Road, 889 F.2d 1258, 1267 (2d Cir.1989). Once the government has established probable cause to believe the property has been used to facilitate such an offense, persons claiming to be innocent owners have the burden of "prov[ing], by a preponderance of the evidence, that the narcotics activity on the property occurred without their knowledge or, if they had knowledge of it, without their consent." United States v. Two Parcels of Property Located at 19 and 25 Castle Street, 31 F.3d 35, 39 (2d Cir.1994). "[W]here an owner has engaged in willful blindness as to activities occurring on her property, her ignorance will not entitle her to avoid forfeiture." United States v. One Parcel of Property, Located at 755 Forest Road, 985 F.2d 70, 72 (2d Cir.1993) (internal quotes omitted).

Matters of knowledge and willful avoidance of knowledge are questions of fact, and the district court's findings as to those facts may not be set aside unless they are clearly erroneous. See Fed.R.Civ.P. 52(a); United States v. Real Property & Improvements Located at 5000 Palmetto Drive, 928 F.2d 373, 375 (11th Cir.1991) ("Determination of an innocent owner claim may be reversed only if clearly erroneous."). Assessment of the credibility of witnesses is peculiarly within the province of the trier of fact and is entitled to considerable deference. See Anderson v. Bessemer City, 470 U.S. 564, 573-75, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985). "[W]hen a trial judge's finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear...