U.S. v. One Parcel of Real Property, Located at 9638 Chicago Heights, St. Louis, Mo., R-9

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Before RICHARD S. ARNOLD, Chief Judge, MAGILL and BEAM; BEAM; Scalia
• Citation: 27 F.3d 327
• Parties: UNITED STATES of America, Appellee, v. ONE PARCEL OF REAL PROPERTY, LOCATED AT 9638 CHICAGO HEIGHTS, ST. LOUIS, MISSOURI, Lot 31 in Blockof Elmwood Park Resubdivision, According to the Plat thereof Recorded in Plat Book 108, , of the St. Louis County Recorder's Office, Together with the Improvements thereon Known as and Numbered 9638 Chicago Heights, with all Appurtenances and Improvements thereon; Appellant, Carol Long; Appellant, Commercial Credit Plan, Incorporated, Claimant.
• Decision Date: 15 June 1994
• Docket Number: R-9,No. 93-3350

Page 327

27 F.3d 327 UNITED STATES of America, Appellee,
v.
ONE PARCEL OF REAL PROPERTY, LOCATED AT 9638 CHICAGO
HEIGHTS, ST. LOUIS, MISSOURI, Lot 31 in Block R-9 of Elmwood
Park Resubdivision, According to the Plat thereof Recorded
in Plat Book 108, Page 20, of the St. Louis County
Recorder's Office, Together with the Improvements thereon
Known as and Numbered 9638 Chicago Heights, with all
Appurtenances and Improvements thereon; Appellant,
Carol Long; Appellant,
Commercial Credit Plan, Incorporated, Claimant. No. 93-3350. United States Court of Appeals,
Eighth Circuit. Submitted April 15, 1994.
Decided June 15, 1994.

Page 328

Deborah Michelle Bird, St. Louis, MO, argued (Nick A. Zotos, on the brief), for appellant.

Raymond Martin Meyer, St. Louis, MO, argued, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, MAGILL and BEAM, Circuit Judges.

BEAM, Circuit Judge.

Carol Long, owner of the defendant real property, appeals from a grant of summary judgment to the government in this 21 U.S.C. Sec. 881 forfeiture action. She raises several constitutional challenges. We reverse and remand to the district court with directions to dismiss the action.

I. BACKGROUND

On March 5, 1992, Long pled guilty in state court to three counts of selling a controlled substance. The three drug transactions occurred at Long's residence. The total quantity of drugs involved in the three sales was approximately two grams of cocaine. Long received a suspended sentence and was placed on probation for five years. As a condition of probation, Long was ordered to pay $225 restitution. This amount represents the cash value of the drugs Long sold in the three drug transactions.

On June 17, 1992, the United States filed a verified forfeiture complaint against Long's residence, the defendant real property located at 9638 Chicago Heights in St. Louis, Missouri. On that same day, the United States filed a notice of lis pendens and obtained a warrant for the seizure of the defendant real property. Long was not given notice or a hearing prior to the execution of the warrant. In all three documents, the United States alleged that the real property was used or intended to be used to commit or

Page 329

to facilitate the commission of a violation of the Controlled Substances Act, 21 U.S.C. Secs. 881 et seq. Long's answer denied that the United States had probable cause to seek forfeiture of her residence. The United States filed a motion for summary judgment to which Long failed to respond. ¹ On July 19, 1993, the district court granted the government's unopposed motion for summary judgment and ordered the residence forfeited. Long appeals.

II. DISCUSSION

A. Fifth Amendment Due Process

Long raises a number of grounds for reversal. We find that a recent Supreme Court case, United States v. James Daniel Good Real Property, --- U.S. ----, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993) is dispositive. In Good, the Supreme Court determined that the seizure of real property for forfeiture under section 881(a)(7) violates due process if the property owner is not afforded notice and a hearing prior to the seizure. The Court rejected the contention that a postseizure hearing satisfies the Fifth Amendment due process requirement stating that:

based upon the importance of the private interests at risk and the absence of countervailing Government needs ... the seizure of real property under Sec. 881(a)(7) is not one of those extraordinary instances that justify the postponement of notice and hearing. Unless exigent circumstances are present, the Due Process Clause requires the Government to afford notice and a meaningful opportunity to be heard before seizing real property subject to civil forfeiture.

Good, --- U.S. at ----, 114 S.Ct. at 505. There is no dispute that Long did not receive notice and/or a hearing before the seizure of her residence. Indeed, the seizure warrant was issued and executed on June 17, 1992, the same day that the forfeiture action was filed. However, Good was decided after the magistrate judge issued the seizure warrant and after the district court granted the United States' motion for summary judgment. Therefore, Long can prevail only if Good is retroactively applicable to her case.

The Supreme Court has recently addressed the question of retroactive application of its civil decisions. See James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991). Relying on Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987),...