USA. v. 47 West 644 Route 38, 97-4145

• Decision Date: 19 August 1999
• Docket Number: No. 97-4145,97-4145
• Citation: 190 F.3d 781
• Parties: (7th Cir. 1999) United States of America, Plaintiff-Appellee, v. 47 West 644 Route 38, Maple Park, Illinois, Defendant, Gregory Accardi and Holly Accardi, Claimants-Appellants
• Court: U.S. Court of Appeals — Seventh Circuit

Page 781

190 F.3d 781 (7th Cir. 1999)

United States of America, Plaintiff-Appellee, v. 47 West 644 Route 38, Maple Park, Illinois, Defendant, Gregory Accardi and Holly Accardi, Claimants-Appellants.

No. 97-4145

United States Court of Appeals, Seventh Circuit

Argued May 13, 1999

Decided August 19, 1999

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 92 C 7906--Milton I. Shadur, Judge.

Before Bauer, Manion, and Kanne, Circuit Judges.

Bauer, Circuit Judge.

Claimants Gregory and Holly Accardi bring this appeal to challenge the forfeiture of 47 West 644 Route 38, Maple Park, Illinois (hereinafter the "Property"). The Accardis argue that the district court should have dismissed the forfeiture action because the government's seizure of the Property violated the due process principles announced in United States v. James Daniel Good Real Property, 510 U.S. 43 (1993). They also argue that the forfeiture constituted disproportionate punishment in violation of the Eighth Amendment. We affirm.

I. Background

On September 13, 1992, Illinois State Police conducting aerial surveillance observed and photographed marijuana plants growing around the Accardis' barn and house. On September 15, several members of the Illinois State Police Task Force searched the Accardis' property. The search revealed marijuana plants growing next to a broken shed, in a locked barn, and near the property fence. In all, police found 45 growing marijuana plants, and over 500 grams of dried marijuana. Police also found several guns in the house.

On December 3, 1992, the U.S. Attorney's office began forfeiture proceedings pursuant to 21 U.S.C. sec. 881(a)(7). On December 9, the district court granted the government's ex parte motion for a warrant to seize the Property. The following year, the Supreme Court decided Good, which held that due process requires that the government provide an adversarial hearing before seizing real property that is subject to forfeiture. On May 6, 1996, the Accardis filed a motion to dismiss, arguing that the Property had been seized in violation of Good. The district court denied the motion, citing this Court's decision in United States v. All Assets and Equip. of West Side Bldg. Corp., 58 F.3d 1181 (7th Cir. 1995), for the proposition that dismissal is not the proper remedy for a violation of Good. On April 28, 1997, the district court entered a memorandum opinion and order granting summary judgment in favor of the government in the forfeiture proceedings.

On May 9, 1997, the Accardis filed a motion to set a date for an Eighth Amendment proportionality hearing. The district court denied the motion on the grounds that the Accardis had waived the issue by failing to raise it in response to the government's motion for summary judgement. On October 16, 1997, the court issued a final decree of forfeiture. This appeal followed.

II. Discussion

A. Remedy for Good Violation

In Good, the Supreme Court held that "[u]nless 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, 510 U.S. at 62. This principle applies to all cases, like this one, that were not final on the date that Good was decided. All Assets, 58 F.3d at 1191. Nonetheless, the district court denied the Accardis' motion to dismiss, holding that dismissal is not the correct remedy for a Good violation. We review de novo.

Good does not address the appropriate remedy for failure to provide a pre-seizure hearing. However, in All Assets, we held that an "illegal seizure does not, standing alone, require that the property be immune from forfeiture." All Assets, 58 F.3d at 1193. Instead, the government is responsible "for the profits of which the claimant was deprived during the period of illegal seizure." Id. We recently reaffirmed this principle in United States v. 8136 S. Dobson St., Chicago, Illinois, 125 F.3d 1076, 1089 (7th Cir. 1997), and we affirm it again today. The district court's denial of the motion to dismiss was not error.

B. Proportionality Under the Eighth Amendment

The Accardis next argue that the forfeiture of their family farm was a disproportionate punishment in violation of the Excessive Fines Clause of the Eighth Amendment. See Austin v. United States, 509 U.S. 602 (1993); United States v. Bajakajian, 524 U.S. 321 (1998). This issue was not reached below because the district court held that the Accardis had waived their proportionality claim by failing to raise it in response to the government's motion for summary judgment. Although the Accardis deny it, their motion for a proportionality hearing constituted a motion for reconsideration under Federal Rule of Civil Procedure 59(e). All "substantive motions served within 10 days of the entry of judgment will be treated as based on Rule 59." United States v. Deutsch, 981 F.2d 299, 301 (7th Cir. 1992) (internal quotation marks and citation omitted). A substantive motion is one "that if granted would result in a substantive alteration in the judgment rather than just in a correction of a clerical error or in a purely procedural order such as one granting an extension of time within which to file something." Britton v. Swift Transp. Co., Inc., 127 F.3d 616, 618 (7th Cir. 1997) (internal quotation marks and citation omitted). Under this definition, the Accardis' motion was clearly a substantive one. Furthermore, although the Accardis' motion was technically filed eleven days after summary judgment was entered, the motion falls within the ten day limit because we exclude Saturdays and Sundays when the prescribed time period is less than eleven days.¹ See Fed. R. Civ. P. 6(a); Popovits v. Circuit City Stores, Inc., 185 F.3d 726, 729-30 (7th Cir.1999). We review a district court's denial of a Rule 59 motion for abuse of discretion. See Br...