U.S. v. Wagoner County Real Estate

• Citation: 278 F.3d 1091
• Decision Date: 02 January 2002
• Docket Number: No. 00-7059.,00-7059.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. WAGONER COUNTY REAL ESTATE, Rural Route 5, Box 340, Wagoner, Defendant. Nanette Lees, Claimant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

278 F.3d 1091

UNITED STATES of America, Plaintiff-Appellee, v. WAGONER COUNTY REAL ESTATE, Rural Route 5, Box 340, Wagoner, Defendant Nanette Lees, Claimant-Appellant.

No. 00-7059.

United States Court of Appeals, Tenth Circuit.

January 2, 2002.

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Linda A. Epperley, Assistant United States Attorney (Sheldon J. Sperling United States Attorney with her on the brief), Muskogee, OK, for Plaintiff-Appellee.

Robert G. Brown, Tulsa, OK, for Claimant-Appellant.

Before SEYMOUR, Circuit Judge, BRORBY, Senior Circuit Judge, and LUCERO, Circuit Judge.

SEYMOUR, Circuit Judge.

Claimant Nanette Lees, the owner of real property in Wagoner, Oklahoma, appeals from a judgment ordering forfeiture of the property for its use in the facilitation of federal drug law violations. See 21 U.S.C. § 881(a)(7) (1999). On appeal, Ms. Lees contests the validity of the forfeiture decree, arguing that (1) the property was her homestead, and not subject to forfeiture under Oklahoma law; (2) an improper jury instruction concerning probable cause interfered with her ability to demonstrate that the property was not used in illegal activity; (3) the erroneous denial of her motions in limine to exclude evidence of her prior drug conviction and her grandson's drug-related juvenile adjudication curtailed her innocent owner defense; and (4) the forfeiture of her property constituted an excessive fine in violation of the Eighth Amendment of the United States Constitution. After ordering supplemental briefing on the fourth issue and hearing oral argument by the parties, we now affirm in part, reverse in part, and remand for further proceedings.

I

On June 24, 1999, the Wagoner Police Department arrested an individual named Brian Sevier for possession of a large bag of marijuana. Sevier cooperated with law enforcement officers, telling them that he had purchased the marijuana at Ms. Lees' residence from Jade Lees, who was Sevier's friend and Ms. Lees' grandson. Sevier agreed to call Jade and arrange another marijuana purchase. The officers drove to Ms. Lees' house, where they saw two men sitting on the back porch, smoking what the officers believed to be marijuana cigarettes. Jade appeared in the doorway.

The officers asked Jade for permission to search the residence. Jade stated that, although he lived there, he could not consent to the search because the property belonged to Ms. Lees, who was driving home from Oklahoma City. Ms. Lees was called on her cell phone. She gave oral permission for the search and said that she would arrive home within an hour. When Ms. Lees entered the house, she took a seat, placed the black bag she was carrying beside her chair, and signed a search consent form.

In their search, the officers found a gallon-size bag of suspected marijuana, a large set of scales, vials containing suspected steroids, several hundred dollars in cash, and approximately fifteen firearms. These items were found primarily in Jade's bedroom. With her consent, an officer also searched Ms. Lees' black bag and found a large quantity of Valium pills.

On June 29, a search warrant was issued and the officers conducted a second search of the property. Among other things, they found photographs of marijuana cultivation, an ashtray with marijuana residue, vials of suspected testosterone, and some cigarette rolling papers. On the patio, they observed a scattering of numerous marijuana cigarette butts.

Both Nanette and Jade Lees were arrested on state drug charges. The state pursued charges against Jade Lees, but not against Ms. Lees. Previously, Ms. Lees had been placed on probation after entering a guilty plea to a federal misdemeanor charge of possession of 33,600 tablets of Valium, arising from her December 4 1998, arrest at a United States Border Patrol Checkpoint outside of Laredo, Texas. Following her arrest on the state drug charges, Ms. Lees' probation was revoked and she was committed to the custody of the United States Bureau of Prisons to serve a sentence of twelve months.

The United States brought this civil in rem forfeiture action, alleging that the property had been used, or intended to be used, to commit or facilitate the commission of federal drug offenses and was therefore forfeitable under 21 U.S.C. § 881(a)(7) (1999).¹ The district court issued a warrant of arrest in rem for the property. Ms. Lees contested the forfeiture, asserting that the property was protected by the homestead exemption, that it was not used in connection with a drug offense, that she was an innocent owner of the property, and that forfeiture of the property, with an appraised value of $136,000, would constitute an excessive fine in violation of the Eighth Amendment.

The United States filed a motion for partial summary judgment on many of Ms. Lees' claims and defenses. The district court granted the government's motion with respect to the probable cause and homestead exemption issues. The remainder of the case proceeded to a jury trial.

At trial, Ms. Lees testified on her own behalf. Sevier, local law enforcement officers involved in the investigation, and a special agent with the federal Drug Enforcement Administration provided testimony for the government. At the conclusion of the evidence, the court determined that, as a matter of law, a potential forfeiture of Ms. Lee's property would not be grossly disproportionate and therefore would not violate the Excessive Fines clause. The jury returned its verdict in favor of the government and the district court entered a decree of forfeiture. This appeal followed.

II

First we consider Ms. Lees' claim that, as a resident of Oklahoma and a Creek Indian, her property may not be forfeited because it is protected by the general Oklahoma homestead exemption, Okla. Stat. tit. 31, § 1(A),² and the Oklahoma constitutional provision relating to Indian homesteads, Okla. Const. art. XII, § 1(D).³ Ms. Lees points out that the Oklahoma Supreme Court has ruled that a statutory homestead is not subject to forfeiture under the Oklahoma Uniform Controlled Dangerous Substances Act. State ex rel. Means v. Ten (10) Acres of Land, 877 P.2d 597, 601 (Okla. 1994).

The district court granted the government's motion for partial summary judgment on this issue, determining that federal forfeiture law preempted Oklahoma law as to the forfeitability of homestead property. See Aplee. App., vol. I at 142. "Whether state law is preempted by federal law is a conclusion of law which we ... review de novo." Garley v. Sandia Corp., 236 F.3d 1200, 1206 (10th Cir.2001).

Congress has the power to preempt state law under Article VI of the Supremacy Clause, which provides that the laws of the United States are "the supreme Law of the Land; ... any Thing in the Constitution or Laws of any state to the Contrary notwithstanding." U.S. Const. Art. VI, cl. 2. Federal law preempts state law in three circumstances: (1) when Congress explicitly defines the extent to which the enacted statute preempts state law; (2) when state law actually conflicts with federal law; or (3) when state law attempts to regulate "conduct in a field that Congress intended the Federal Government to occupy exclusively." Choate v. Champion Home Builders Co., 222 F.3d 788, 792 (10th Cir.2000) (citing English v. Gen. Elec. Co., 496 U.S. 72, 78-79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990)); see also 21 U.S.C. § 903 (providing that federal forfeiture law should not be "construed as indicating an intent on the part of Congress to occupy the field in which that provision operates, ... unless there is a positive conflict" between federal and state law) (emphasis supplied). In any preemption analysis, congressional intent is the "ultimate touchstone." Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (additional quotations omitted).

The language of § 881(a)(7) does not specify the extent to which state homestead laws are affected. Contrary to claimant's contentions, however, there is no legal significance in the lack of an explicit statement of preemption. Section 881(a)(7) provides for the forfeiture of "[a]ll real property" used to commit a federal drug law violation. The statute's broad, unambiguous language is in direct conflict with Oklahoma law allowing forfeiture of all property except homestead property.

This literal reading of § 881(a)(7) is consistent with the relevant legislative history. A stated purpose in enacting the Comprehensive Crime Control Act of 1984, of which § 881(a)(7) is a part, was

"to enhance the use of forfeiture ... as a law enforcement tool in combating... drug trafficking.... This bill is intended to eliminate the statutory limitations and ambiguities that have frustrated active pursuit of forfeiture by Federal law enforcement agencies."

S. Rep. No. 225, 98th Cong.2d Sess. 191, 192, reprinted in 1984 U.S.C.C.A.N. 3182, 3374, 3375. Moreover, the legislative history evinces specific intent to extend civil forfeiture to homesteads. See id. at 195, reprinted in 1984 U.S.C.C.A.N. 3378 (civil forfeiture statute extends to "house" of drug offender to be [a] "powerful deterrent" to commission of drug offense).

United States v. Lot 5, Fox Grove, 23 F.3d 359, 363 (11th Cir.1994) (alterations in original).

All other federal courts considering the interplay between § 881(a)(7) and state homestead protections have determined that residential property is subject to forfeiture despite state exemptions. See id.; United States v. 3262 SW 141 Ave., 33 F.3d 1299, 1301 n. 6 (11th Cir.1994); Brewer v. United States (In re Brewer), 209 B.R. 575, 577 (Bankr.S.D.Fla.1996); United States v. One Parcel Property, 894 F.Supp. 397, 405 (D.Kan.1995); United States v. 1606 Butterfield Rd., 786 F.Supp. 1497, 1505 (N.D.Iowa 1991); United States v. 212 Airport Rd. S., 771 F.Supp. 1214, 1216 (S.D.Fla.1991); see also Means, 877 P.2d at 601 (stating that "[f]ederal courts generally have found state homestead...