U.S. v. One Parcel Property Located at 427 and 429 Hall Street, Montgomery, Montgomery County, Ala., With All Appurtenances and Improvements Thereon

• Decision Date: 14 February 1996
• Docket Number: No. 94-6643,94-6643
• Citation: 74 F.3d 1165
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. ONE PARCEL PROPERTY LOCATED AT 427 AND 429 HALL STREET, MONTGOMERY, MONTGOMERY COUNTY, ALABAMA, WITH ALL APPURTENANCES AND IMPROVEMENTS THEREON a/k/a G & G Grocery, Defendant, George Thomas Jenkins, Claimant-Appellant, Fleet Finance, Inc., Claimant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1165

74 F.3d 1165

64 USLW 2533

UNITED STATES of America, Plaintiff-Appellee, v. ONE PARCEL PROPERTY LOCATED AT 427 AND 429 HALL STREET MONTGOMERY, MONTGOMERY COUNTY, ALABAMA, WITH ALL APPURTENANCES AND IMPROVEMENTS THEREON a/k/a G & G Grocery, Defendant George Thomas Jenkins, Claimant-Appellant Fleet Finance, Inc., Claimant.

No. 94-6643.

United States Court of Appeals Eleventh Circuit.

Feb. 14, 1996.

Jeffery C. Duffey, Charles M. Law, Montgomery, AL, Scott J. Humphrey, Birmingham, AL, for appellant.

John T. Harmon, Asst. U.S. Atty., Montgomery, AL, for appellee.

Appeal from the United States District Court for the Middle District of Alabama.

Before TJOFLAT, Chief Judge, CARNES, Circuit Judge, and JOHNSON, Senior Circuit Judge.

TJOFLAT, Chief Judge.

I.

The defendant in this in rem proceeding is a parcel of real property located on Hall Street in Montgomery, Alabama. It is about 500 feet from the outdoor basketball courts of Houston Hills Junior High School and one fifth of a mile from the front door of the school itself. The entire property, which is valued at approximately $65,000, is owned by George Jenkins. There is one building on the property. In 1991, Jenkins ran a grocery store from one portion of the building and rented out the other portion.

In August 1991, an agent of the local district attorney's drug task force received a telephone call from a confidential informant who notified him that drugs were being sold at the grocery store. The task force then conducted two "controlled buys" using the informant. After each controlled buy, the informant produced a clear one-inch square bag, which contained a white, powder-like substance, and stated that the individual who had sold him the bag had pulled it from his pants pocket. Each time, the agents field-tested the substance, identified it as one half of a gram of cocaine, and destroyed it.

On the strength of the information acquired during the two controlled buys, agents secured a warrant that authorized a search of the grocery store and any vehicle on the premises. The search was conducted on August 30. When they entered the store, the agents found George Jenkins standing behind a counter and cash register. In his front right pants pocket, the agents found forty-five dollars and seven plastic one-inch square bags containing a white, powder-like substance. They also found $800 in his wallet, as well as $108 and some .38 caliber bullets on a shelf behind the counter. In a Chevrolet Blazer owned by Jenkins and parked on the premises, the agents found three hand-rolled cigarettes and a .38 caliber pistol. Subsequent laboratory tests indicated that the bags taken from Jenkins's pocket contained a total of three grams of cocaine and that the cigarettes contained six tenths of a gram of marijuana.

In September 1992, Jenkins pled guilty in state court to the unlawful possession of cocaine, a felony under Alabama law, which carries a maximum sentence of ten years in prison and a maximum fine of $5000. A charge of unlawful possession of marijuana was dropped as part of the plea agreement.

In October 1991, the United States filed this civil action in rem for forfeiture of the entire parcel of real property, pursuant to section 511(a)(7) of the Controlled Substances Act, Pub.L. No. 91-513, tit. II, 84 Stat. 1236, 1276 (1970), 21 U.S.C. Sec. 881(a)(7) (1994), which authorizes 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 Controlled Substances Act] punishable by more than one year's imprisonment...." ¹ In December 1991, Jenkins filed an answer in the forfeiture proceeding, as claimant to the property. After a bench trial, the district court ordered the property forfeited to the government. See United States v. One Parcel of Property Located at 427 & 429 Hall St., 842 F.Supp. 1421 (M.D.Ala.1994). The court subsequently denied Jenkins's motion for a new trial. See United States v. One Parcel of Property Located at 427 & 429 Hall St., 853 F.Supp. 1389 (M.D.Ala.1994).

Jenkins appeals, contending that: (1) the underlying offense was not "punishable by more than one year's imprisonment," as required by statute, and (2) the forfeiture constitutes an "excessive fine" in violation of the Eighth Amendment. ²

II.

Generally speaking, civil forfeiture is the forfeiture of real or personal property to the state after that property is shown to be linked to a violation of the state's laws. As such, it has a long and varied history. The specific provision before the court today retains some of the characteristics of its antecedents--and those similarities will dispose of Jenkins's first argument. In one significant way, however, the provision departs radically from its precedents. The nature of this departure leads us to disagree with our sister circuit courts about the appropriate analysis of civil forfeiture under the Excessive Fines Clause, and it guides our disposition of Jenkins's second claim.

A.

Some trace the roots of civil forfeiture to the Old Testament. See Exodus 21:28 (King James) ("If an ox gore a man or a woman, that they die: then the ox shall be surely stoned, and his flesh shall not be eaten; but the owner of the ox shall be quit.") ³ Blackstone, for example, noted the scriptural origin of one particular species of common law forfeiture--the deodand, according to which chattel was forfeit if it caused the death of a subject. See 1 William Blackstone, Commentaries

Page 301 ⁴

In addition to the deodand, however, English common law recognized several other forms of forfeiture. See, e.g., 2 William Blackstone, Commentaries *267-287 (eight ways in which real property could be forfeit, including crime of the owner and bankruptcy). At the time our Bill of Rights was ratified, the English common law recognized three kinds of forfeiture: deodand, forfeiture upon conviction for a felony or treason, and "statutory forfeiture," pursuant to which an object would be forfeited if it were used in violation of the customs and revenue laws, which included, for example, the Navigation Acts of 1660. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680-83, 94 S.Ct. 2080, 2090-91, 40 L.Ed.2d 452 (1974); Austin v. United States, --- U.S. ----, ----, 113 S.Ct. 2801, 2807, 125 L.Ed.2d 488 (1993).

Of these three, only statutory forfeiture became part of the American legal tradition. Austin, --- U.S. at ----, 113 S.Ct. at 2807. Indeed, during the colonial period, while adoption and use of forfeiture varied from colony to colony, every colony enacted some form of statutory forfeiture. Matthew Q. Giffuni, Civil Forfeiture and the Excessive Fines Clause Following Austin v. United States, 31 Crim.L.Bull. 502, 506 (1995). So, eventually, did the new federal government. In 1789, the First Congress authorized forfeiture of ships (and their cargoes) that were involved in customs offenses. Act of July 31, 1789, Sec. 12, 1 Stat. 39; see also Act of Aug. 4, 1790, Secs. 13, 22, 27, 28, 1 Stat. 157, 161, 163; Austin, --- U.S. at ----, 113 S.Ct. at 2807. In the years since, Congress has authorized forfeiture to aid enforcement of many statutory schemes, including the navigation laws, food and drug laws, copyright laws, and antitrust laws.

In 1970, Congress enacted the Controlled Substances Act as part of the Comprehensive Drug Abuse Prevention and Control Act and in it authorized civil forfeiture. See Controlled Substances Act Sec. 511, 84 Stat. at 1276, 21 U.S.C. Sec. 881. In 1984, Congress added the provision under which the Government proceeded in this case. See Comprehensive Forfeiture Act of 1984, Pub.L. No. 98-473, tit. II, ch. III, Sec. 306, 98 Stat. 2040, 2050 (amending Controlled Substances Act Sec. 511(a), 21 U.S.C. Sec. 881(a)). As noted, that section authorizes the forfeiture of real property used, or intended to be used, to commit, or to facilitate the commission of, a violation of the Controlled Substances Act punishable by more than one year of imprisonment.

Forfeiture pursuant to 21 U.S.C. Sec. 881(a)(7) retains many characteristics of its ancestors. Notably, "[a] civil forfeiture action is not an action in personam against the claimant of the property; rather, it is an action in rem against the property itself." United States v. Four Parcels of Real Property, 941 F.2d 1428, 1435 (11th Cir.1991) (en banc). The property, and not its owner, is "guilty." This is traditional in rem forfeiture. Among its implications: the acquittal, or even non-prosecution, of the owner on criminal charges is irrelevant as to the forfeitability of the property. See The Palmyra, 25 U.S. (12 Wheat.) 1, 15, 6 L.Ed. 531 (1827) ("[T]he proceeding in rem stands independent of, and wholly unaffected by any criminal proceeding in personam."); The Brig Malek Adhel, 43 U.S. (2 How.) 210, 233, 11 L.Ed. 239 (1844) ("The vessel which commits the aggression is treated as the offender, as the guilty instrument or thing to which the forfeiture attaches, without any reference whatsoever to the character or conduct of the owner."). A related implication: the government bears a lower burden of proof. To justify a forfeiture under section 881(a)(7), the government must merely establish that it had "probable cause" to believe that a crime punishable by a year or more has occurred. United States v. Four Parcels of Real Property, 941 F.2d at 1438.

At this juncture, Jenkins's first argument can be disposed of briefly. The Government proceeded in rem against property linked to a violation of the Controlled Substances Act. Jenkins claims that forfeiture is improper because the "underlying offense" in question is possession of three grams of cocaine (i.e., the cocaine found on his person on August 30), which is a misdemeanor punishable by "a term of imprisonment of not more than 1 year." Controlled Substances Act Sec. 404(a), 84 Stat. at 1264, 21 U.S.C. Sec. 844(a) (1994). To be sure,...