Petition for Writ of Certiorari — Levin v. United States
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a _&
-| §vpreme Court, U.S.
91-1682 | FILED
| APR 2 0 1992
No. 91-
e+
Cee ne ow
IN THE
Supreme Court of the United States
OCTOBER TERM, 1991
~~
EDWARD J. LEVIN,
Petitioner,
—against—
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
PETITION FOR WRIT OF CERTIORARI
RICHARD B. LIND, Esq.
Attorney for Petitioner
345 Park Avenue
New York, New York 10154
(212) 888-0100
i
QUESTION PRESENTED
1. Is the Double Jeopardy Clause’s prohibition against
multiple punishments violated when a State, after sentencing
a defendant in a state criminal action, punishes the defendant
again by: (a) using the federal government as a ‘“*tool’’ to
institute a federal civil in rem forfeiture against the defen-
dant’s condominium; (b) splitting the proceeds of the federal
in rem forfeiture action?
2. Is the Eighth Amendment’s prohibition against dispro-
portionate punishments, and excessive fines and penalties,
transgressed by an in rem forfeiture of a condominium based
on the sale of 2.5 grams of cocaine, where the owner’s equity
’ interest is 300 times greater than the value of the drugs sold?
3. Is the appropriate standard for forfeiture under Title 21
U.S.C. § 881(a)(7) a ‘‘substantial connection’ test, as applied
by the overwhelming majority of Circuits and as compelled
by the applicable legislative history, or a less stringent, **suf-
ficient nexus” test, as applied by the Second Circuit?
4. Is the Due Process Clause violated by an in rem civil
forfeiture that is grossly excessive, disproportionate, and
extracted to disable an individual?
TABLE OF CONTENTS
Questions Presented ..........ee eee cere eeereeeees
Table of Cotes... cc cccreccssscnssssncesessseuns
Table of Authorities. ..........cc cee ee cree eceeeees
Opinions Below .......--.eeeee cece eee eeeeeseeeeees
FurlaPictioR 6. ccc ccncsscdestunectaes ténnepetnsesees
Statement Of The Case ........-.cceeeccccceccceees
A.
B.
C.
Factual Background..........seeeeeeeeeeees
The Decision Of The District Court .........
The Decision Of The Circuit Court.........-
Reasons For Granting The Writ ........--++++e+eees
I.
II.
Ill.
IV.
This Court Should Resolve The Conflict
Among The Circuits Regarding The Applicable
Test In Forfeiture CaseS.........--+eeeeeee:
Forfeiture Of The Condominium Violated The
Double Jeopardy Clause Of The Fifth Amend-
The Forfeiture Of Levin’s Condominium Vio-
lated The Eighth Amendment .........-.----
Forfeiture Of The Condominium Violated The
Due Process Clause Of The Fifth Amendment
Comclusiog. .....csese cade ekssauns ah heneeeeeeo
PAGE
nA & NY NY
15
19
lil
TABLE OF AUTHORITIES
Cases PAGE
Bartkus v. Illinois, 359 U.S. 121 (1959) .........+--- 11
Browning-Ferris Industries v. Kelco Disposal, Inc., 492
U.S. ZT CIDR) nc cccvccccccvcccvescccsccss 5, 12, 16
Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S.
GES CISTE). oo ccc ccecccccccccvencesccccsccess 6-7, 16, 18
Daniels v. Williams, 474 U.S. 327 (1986)...........- 15
Ingraham v. Wright, 430 U.S. 651 (1977) ......+.++- 12-13
Lassiter v. Department of Social Services, 452 U.S. 18
OSA Seer re Tee rere re ee eee eee 15
Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982) 15
Missouri Pacific Ry. Co. v. Humes,\15 U.S. 512 (1885) 16
Peterson v. Richardson, 370 F. Supp. 1259 (N.D.Tex.
1973), aff’d, 508 F.2d 45 (Sth Cir), cert. denied, 423
U.S. BOO CIDTS) 2.0 cc ccccccccccsccccccsccccccccns 17
St. Louis, I.M.& S. Ry. v. Williams, 251 U.S. 63
PEPE ska sbrdascensnscccccvcccccossscescsccsese 16
Solem v. Helm, 463 U.S. 277 (1983) ......-----+++0+: 13-15
Southwestern Telegraph & Telephone Co. v. Danaher,
ee ccc ea weeeeeseoseaaeaneecere 16
United States v. Aboumussallem, 726 F.2d 906 (2d Cir.
cc cae seubeeenecceesdscscencsesesoecscccscss 11
United States v. Approximately 50 Acres of Real Estate
Property, 920 F.2d 900 (11th os 3 Aree 9
United States v. Busher, 817 F.2d 1409 (9th Cir. 1984) 14
iV
PAGE
United States v. Certain Real Property and Premises
Known as 38 Whalers Cove Drive, 747 F. Supp. 173
28k | Ree Teer ee ee eee 1, 4-6, 15-16
United States v. Certain Real Property and Premises
Known as 38 Whalers Cove Drive, 954 F.2d 29 (2d
2 A SP er rere arr ey re 1, 6-7, 8-18, passim
United States Currency, 874 F.2d 298 (Sth Cir. 1989). 8
United States v. Forfeiture, Stop Six Center, 781
F.Sae. TAO CD. TOR. FPA). ccc sccescccccnces 9
United States v. 526 Liscum Drive, 866 F.2d 213 (6th
EE Sock wSuceRe ROR a Pan haw he eke dew eee 8
United States v. Halper, 490 U.S. 435
CLdaees's cccesuyak es Neuetaenh 5-7, 10-12, 13, 16-18
United States v. Littlefield, 821 F.2d 1365 (9th Cir.
SARC Re ree mn ee Cee rs eee 14
United States v. One 1974 Cadillac Eldorado,.575 F.2d
ee Ero eer rere 9
United States v. One 1974 Cadillac Sedan, 548 F.2d
ib gS. sR to ne eee re ee 9
United States v. One Parcel of Land, Known as Lot
111-B, 902 F.2d 1443 (9th Cir. 1990).............. 8
United States v. One Parcel of Land and Residence at
28 Emery St., 914 F.20 Ce. W9GD) oc vcncsccccsese 8
United States v. One Parcel of Real Estate Commonly
Known As 916 Douglas Avenue, 903 F.2d 490 (7th
Ce, Fe oc cis causes Neva eneens Cre usAGeeeeeus 8
United States v. One Parcel of Real Estate Located at
7715 Betsy Bruce Lane, 906 F.2d 110 (4th Cir. 1990) 8
United States v. One Tintoretto Painting, 691 F.2d 603
vv fe SS WPT eer rrrryviritriy Tiere Tre 17
United States v. Premises Known As 3639-2nd St., 869
i» @ Ff fo , Peeerererrrrr rrr re rrr Tr 8
PAGE
United States v. Property Known As 6109 Grubb
Road, 886 F.2d 618 (3d Cir. 1989)...........-.06- 8-9
United States v. The Premises And Real Property At
4492 South Livonia Road, 889 F.2d 1258 (2d Cir.
PPT RTETEPECLETTeT i TITLE 6, 8, 9
United States v. $321,470.00, United States Currency,
874 F.2d 298 (Sth Cir. 1989) .........cccccececees 8
Waters-Pierce Oil Co. v. Texas, 212 U.S. 86 (1909) .. 16
Constitutional Amendments
Fifth Amendment to the U.S. Constitution..... 10-12, 15-18
Eighth Amendment to the U.S. Constitution......... 12-15
Statutes
Federal Sentencing Guidelines, Section 5B1.1(a)(2).... 15
rigik tom & | ‘ MPrerrerrr rier ery te 9
DE UBS DD 6 8 6 nn 6 eid ee careeeeeeeeass 8-9, 11
21 U.S.C. § BB1(eE)(IMA) ....... ccc cccccccccccccces 11
ae eo? SEY) |) Reerererrreri rr rr 11
NY Penal Law § 110.06. .....cccccccscccccccvcsecss 3
Law Review
Pratt & Petersen, Civil Forfeitures in the Second Cir-
cuit, 65 St. John’s L.Rev. 653 (1991) ........-.--- 9
Miscellaneous Authorities
1984 U.S. Code Cong. & Admin. News 3182........ 9
1990 McKinney’s Session Laws, Ch. 655 .........--. 11
IN THE
Supreme Court of the United States
OCTOBER TERM, 1991
No. 91-
-
EDWARD J. LEVIN,
Petitioner,
—against-—
UNITED STATES OF AMERICA,
Respondent.
<i
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Petitioner Edward J. Levin respectfully prays that a writ of
certiorari issue to review a judgment of the United States
Court of Appeals for the Second Circuit, that affirmed a
judgment of forfeiture against petitioner Edward J. Levin’s
condominium, which had been entered in the United States
District Court for the Eastern District of New York.
OPINIONS BELOW
The opinion of the Court of Appeals is officially reported
at 954 F.2d 29 (2d Cir. 1991). The opinion of the United
States District Court for the Eastern District of New York is
officially reported at 747 F.Supp 173 (E.D.N.Y. 1990). Cop-
ies of the Circuit and District Court opinions are annexed
hereto.
4
a
JURISDICTION
The decision of the Circuit Court was entered on January
3, 1992. Levin’s petition for rehearing with suggestion for
rehearing en banc was denied on January 21, 1992. Accord-
ingly, this petition for certiorari is timely. This Court’s juris-
diction is invoked pursuant to Title 28, United States Code,
§ 1254(1).
STATEMENT OF THE CASE
A. Factual Background
Petitioner Levin is a S5l-year old divorced father of two
grown children. After two years of college he worked for 15
years as the chief salesman for Seaman’s Furniture. Levin
purchased the defendant res, a condominium located at 38
Whalers Cove Drive, Babylon, New York (occasionally,
**premises’’ or ‘‘condominium’’) in 1977 for $33,000; the
premises has a present market value of about $145,000, less
outstanding mortgages of $77,000. (JA 58).'
In July 1988, Levin made two sales of cocaine to under-
cover officers—of less than one gram each for $150, and
$100—in the premises; a confidential informant had
requested that the first sale take place in the premises. After
these two sales, the principal undercover officer telephoned
Levin at the condominium several times per day, each day
during a ten-week period until his arrest by Suffolk County,
New York Police on Octoher 6, 1988; the apparent reason
for the persistent telephoning was to induce Levin to make
further (and perhaps larger) sales. Levin rebuffed these
requests. After Levin’s arrest in October 1988 on state nar-
cotics charges, the condominium was searched, but, signifi-
cantly, no drugs, weapons, large amounts of cash, drug
paraphernalia, or drug records were uncovered in the prem-
ises. (JA 74-75, JA 84).
1 References to “‘JA ’’ designate pages in the Joint Appendix to
the parties’ briefs in the Second Circuit.
3
Levin immediately began to cooperate with state law
enforcement officials after his arrest. As an example of his
cooperation, on November 2, 1988, at the direction of Suf-
folk County Police, Levin acted as an intermediary in a sale
by his source to ‘‘Sean,’’ the principal law enforcement offi-
cial, of 3.5 grams of cocaine. (JA 58, JA 75).
Notwithstanding Levin’s cooperation, on November 10,
1988, the United States government (the ‘‘Government’’)
instituted an in rem forfeiture action against the premises,
pursuant to 21 U.S.C. § 881(a)(7) (the ‘‘Statute’’). GIA 6-
JA 24). Simultaneously, nine federal marshals conducted an
extensive search of the premises in conjunction with executing
the in rem warrant in the action, but uncovered no indicia of
narcotics activity. (JA 75). The Complaint grounded its claim
for forfeiture on allegations that on July 6, and July 20,
1988, Levin sold cocaine to undercover officers of the Suf-
folk County Police Department. (JA 9).
On November 14, 1988, United States District Judge
Eugene H. Nickerson signed an ex parte seizure warrant
which inter alia ordered the seizure of the condominium, and
the immediate eviction of the premises. (JA 25-JA 29). Sub-
sequently, however, the parties executed an Occupancy
Agreement, which permitted Levin to remain in the condo-
minium during the pendency of this action. (See JA 30).
In December 1988, Levin’s attorney filed a timely claim on
his behalf. (JA 36-JA 38). In March 1989, Levin pled guilty
to one count of attempted criminal sale of a controlled sub-
stance in the third degree, pursuant to Section 110.05 of the
New York State Penal Law (McKinney 1991). (JA 64-JA 72).
Levin was later sentenced to a probationary term, plus a fine.
After filing his claim, Levin moved to dismiss the forfeit-
ure Complaint. The Government subsequently cross-moved
for summary judgment to forfeit the premises; and Levin
submitted a reply. (JA 39-JA 43; JA 46-JA 88). In his
motion papers, Levin advanced several arguments why the
condominium should should not be forfeited: (1) that small
sales of cocaine at the premises did not constitute ‘‘facilita-
tion’’ within the meaning of the relevant statute; (2) forfeit-
ure would violate the Eighth Amendment’s prohibition
ities caalectianeeamaenateaiemacsli
TT
4
against excessive fines and penalties; and (3) forfeiture would
violate substantive due process principles, and the Fifth
Amendment’s proscription against double jeopardy.
The Government contended, inter alia, in its cross-motion
that the premises should be forfeited irrespective of the small
amount transacted in the condominium; and that forfeiture
of the condominium did not violate the Constitution.
B. The Decision Of The District Court
On September 18, 1990, the District Court, Hon. Eugene
H. Nickerson, rendered a decision denying Levin’s applica-
tion to dismiss, and granting the Government’s cross-motion
for summary judgment. United States v. Certain Real Prop-
erty And Premises Known As 38 Whalers Cove Drive, 747 F.
Supp. 173 (E.D.N.Y. 1990).
Judge Nickerson rejected Levin’s assertion that the two
sales of a small amount of cocaine did not constitute ‘‘facili-
tation’’ under the Statute, stating in part:
On two occasions claimant produced a controlled sub-
stance for sale from a place in his dwelling. The use of
the premises repeatedly to sell and to safekeep drugs
undoubtedly ‘‘facilitated’’ the ensuing sales according to
the common definition of the term, ‘‘to make easier.”’
The Random House Dictionary of the English Language
840 (1969) ....
The court [moreover] finds a sufficient nexus between
the property and the drugs to conclude that claimant
used his home to ‘‘facilitate’’ their sale.
Id. at 176.
Judge Nickerson then rejected seriatim Levin’s arguments
that the Statute was unconstitutional as applied. The District
Judge dismissed Levin’s assertion that the forfeiture was
barred by the Double Jeopardy Clause of the Fifth Amend-
ment, since that constitutional guarantee only prohibits suc-
cessive prosecution by the same sovereign. Jd. at 176-77.
Hence, ‘‘[t]he United States does not subject a person to
5
double jeopardy when its seeks a forfeiture predicated on acts
already punished by the state.’’ Jd. at 177.
Judge Nickerson next turned to the issue of whether the
forfeiture violated either the Eighth Amendment’s prohibi-
tions against excessive penalties or fines and cruel and unu-
sual punishments; or the Due Process Clause of the Fifth
Amendment.
Judge Nickerson rejected the Government’s suggestion that
the mere labeling of the instant in rem forfeiture as ‘‘civil’’
precluded an Eighth Amendment analysis, stating that a simi-
lar argument had already been rejected by the Court in
Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S.
257 (1989) and in United States v. Halper, 490 U.S. 435
(1989). Relying on Halper and other Supreme Court prece-
dents, Judge Nickerson reasoned that certain civil sanctions
constituted ‘“‘punishment’’—regardless of their ‘‘civil’’ label—
under the Eighth Amendment, and the pivotal issue was
‘‘whether the forfeiture serves some alternate [remedial] pur-
pose as well, and whether the penalty inflicted is excessive in
relation to that alternative purpose.’’ 38 Whalers Cove Drive,
747 F. Supp. at 179.
Employing this analysis, Judge Nickerson concluded that
the forfeiture of the condominium offended neither the
Eighth Amendment nor the Due Process Clause, stating in
part:
Here, Levin used his home more than once to conduct
drug transactions. Although perhaps trivial in their dol-
lar amount, these sales are quite serious in their collat-
eral consequences. The maintenance of the programs to
deal with drug programs is expensive. Moreover, there
were immediate costs to the federal government in bring-
ing this proceeding and to Suffolk County for its law
enforcement efforts. .. .
Forfeiture of Levin’s approximately $70,000 interest in
the condominium does not seem a grossly excessive
amount for his share of the costs of remedying the ills
6
occasioned by drugs. Though there may be cases where
further elaboration of the government’s loss would be
warranted, this is not a forfeiture that stands near the
line between remedy and punishment.
Id. at 181.
C. The Decision of the Circuit Court
On appeal to the Second Circuit, Levin argued that the
District Court’s ruling should be reversed, on statutory and
substantive due process grounds. Levin also alleged that for-
feiture of his condominium constituted punishment under
United States v. Halper, and that, as such, vidlated the Fifth
and Eighth Amendments. The Second Circuit rejected Levin’s
statutory and due process challenges; moreover, while it
agreed that Halper appeared to raise a presumption that for-
feiture constituted punishment, even if so viewed, the forfeit-
ure did not violate Levin’s constitutional rights. United States
v. Certain Real Property And Premises Known As 38 Whal-
ers Cove Drive, 954 F.2d 29 (2d Cir. 1992).
Adhering to the ‘‘sufficient nexus’’ standard articulated in
United States v. Premises and Real Property at 4492 S. Livo-
nia Rd., 889 F.2d 1258, 1269 (2d Cir. 1989) (‘‘Livonia
Road’’), Judge John M. Walker, for the court, rejected
Levin’s argument that the Statute ‘‘must be read to require
the proving of a ‘substantial connection’ between the prop-
erty and the crime.’’ 38 Whalers Cove Drive, 954 F. 2d at 33.
The court next dismissed Levin’s substantive due process
argument, ruling that ‘‘[t]he Supreme Court has long held
that forfeiture of property used for illegal purposes may be
deemed unduly oppressive only when the owner of the for-
feited property is innocent of the wrongful activity, unin-
volved and unware of it and has done ‘all that reasonably
could be expected to prevent the proscribed use of his prop-
erty.’ ’’ (quoting from Calero-Toledo v. Pearson Yacht Leas-
ing Co., 416 U.S. 663, 689 (1974)). Id. Judge Walker noted
that ‘‘Levin can hardly be said to have done everything possi-
ble to prevent the property’s use for illegal purposes. Under
7
Calero-Toledo, the forfeiture therefore does not offend sub-
stantive due process.’’ Jd. at 33-34.
Judge Walker then held that ‘‘[w]e read Halper to apply to
civil forfeitures. Forfeitures that are overwhelmingly dispro-
portionate to the value of the offense must be classified as
punishment unless the forefeitures are shown to serve articu-
lated, legitimate civil purposes.’’ Jd. at 35. Such legitimate
civil purposes include removing instrumentalities of crime
from general circulation or compensating the government for
its investigative and enforcement expenditures. Jd. at 35-36.
Applying these principles to the forfeiture under rev-ew,
the Circuit determined that the forfeiture of Levin’s condo-
minium constituted punishment under Halper:
The forfeiture of Levin’s interest in the residence was
close to three hundred times the total value of cocaine
found inside it. We find as a matter of law that the
forefeiture [sic] is overwhelmingly disproportionate com-
pared to the value of the relevant drug transactions, and
that therefore a rebuttal [sic] presumption that the for-
feiture is punitive in nature is created.
Id. 954 F.2d at 37 (emphasis added).
Notwithstanding this conclusion, Judge Walker ruled that
the forfeiture did not violate the constitutional limits imposed
by the Double Jeopardy Clause and the Eighth Amendment.
Judge Walker concluded that the Double Jeopardy Clause
was inapplicable because of the ‘‘dual sovereignty’’ doctrine.
Finally, the court dismissed Levin’s Eighth Amendment
claims that the forfeiture constituted crue] and unusual pun-
ishment or an excessive fine. Jd. at 38-39.
8
REASONS FOR GRANTING THE WRIT
POINT I
THIS COURT SHOULD RESOLVE THE CONFLICT
AMONG THE CIRCUITS REGARDING THE
APPLICABLE TEST IN FORFEITURE CASES
As stated above, the 38 Whalers Cove Drive panel adhered
to the ‘‘sufficent nexus’’ standard, articulated in Livonia
Road, for adjudicating forfeiture cases under the Statute. We
submit that the Second Circuit’s test not only contravenes the
overwhelming weight of decisional authority, moreover, it
ignores relevant legislative history. We submit that the Court
should grant the petition for certiorari to resolve this conflict
among the Circuits.
The vast majority of Circuits that have confronted the
issue of the appropriate standard for adjudicating forfeitures
under the Statute have adopted a ‘‘substantial connection’’
standard. See e.g. United-States v. Parcel of Land and Resi-
dence at 28 Emery St., 914 F.2d 1, 3-4 (ist Cir. 1990); United
States v. One Parcel of Real Estate Located at 7715 Betsy
Bruce Lane, 906 F.2d 110, 112-13 (4th Cir. 1990); United
States v. $321,470.00, United States Currency, 874 F.2d 298
(Sth Cir. 1989); United States v. 526 Liscum Drive, Dayton,
Montgomery County, 866 F.2d 213 (6th Cir. 1989); United
States v. Premises Known as 3639-2nd St. N.E., 869 F.2d
1093 (8th Cir. 1989); United States v. One Parcel of Land,
Known as Lot 111-B, 902 F.2d 1443 (9th Cir 1990) (per
curiam). Compare Livonia Road, 889 F.2d at 1269 (‘‘suffi-
cent nexus’’) and United States v. One Parcel of Real Estate
Commonly Known as 916 Douglas Ave., 903 F.2d 490, 493-
94 (7th Cir. 1990) (‘‘more than an incidental or fortuitous
connection’’ to the crime).
Perhaps more significantly, the ‘‘substantial conneciion,’”
rather than ‘‘sufficent nexus,’’ standard appears to be mdn-
dated by a reading of relevant legislative history. See United
States v. Property Known As 6109 Grubb Road, 886 F.2d
9
618 (3d Cir. 1989), discussing the legislative history of 21
U.S.C. § 881(ay(6):?
Quite plainly, Congress stated that ‘‘[d]ue to the penal
nature of forfeiture statutes, it is the intent of these pro-
visions that property would be forfeited only if there is a
substantial connection between the property and the
underlying criminal activity which the statute seeks to
prevent.’’ Joint Explanatory Statement of Titles I] and
III, 124 Cong. Rec. S17647 (October 7, 1978) reprinted
at 1978 U.S. Code Cong. & Admin. News 9518, 9522
(1979) [‘‘Joint Explanatory Statement’’].
Id. at 625 (footnote deleted). Accord, United States v. Lot
111-B, 902 F.2d at 1445 (citing Joint Explanatory Statement
for proposition that ‘‘[t]he intent of the forfeiture provision
is to seize all property that has a ‘substantial connection’ to
the illegal drug activity’’); see also United States v. Approxi-
mately 50 Acres of Real Property, 920 F.2d 900, 902 n.2
(11th Cir. 1990) (citing Joint Explanatory Statement); United
States v. Forfeiture, Stop Six Center, 781 F. Supp. 1200,
1205-06 (N.D. Tex. 1991) (same); Pratt & Petersen, Civil For-
feitures in the Second Circuit, 65 St. John’s L. Rev. 653, 668
(1991) (‘‘Congress explicitly stated ‘it is the intent of these
provisions that property would be forfeited only if there is a
substantial connection between the property and the underly-
ing criminal activity’ ’’).
It is also noteworthy that both decisions relied on by the
Livonia Road panel to fashion a ‘‘sufficient nexus’’ test were
decided before the issuance of the Joint Explanatory State-
ment, excerpted above. See United States v. One 1974 Cadil-
lac Eldorado, 575 F.2d 344 (2d Cir. 1978) and United States
v. One 1974 Cadillac Sedan, 548 F.2d 421 (2d Cir. 1977)
(both applying ‘‘sufficient nexus’’ test). Accordingly, in light
of the overwhelming weight of authority from other Circuits,
and the relevant legislative history, this Court should grant
certiorari to resolve the important issue of the applicable
standard for deciding forfeitures under the Statute.
2 The Statute is derived directly from Section 881(a)(6).
10
POINT I
FORFEITURE OF THE CONDOMIN!_M VIOLATED
THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH
AMENDMENT
As set forth above, forfeiture of Levin’s condominium was
effected after Levin had been sentenced to a probationary
term in New York State Supreme Court for his attempted
sale of a controlled substance. It is respectfully submitted
that the subsequent federal forfeiture, in which it is undis-
puted that New York State will eventually share the proceeds
(see JA 87), violated the Double Jeopardy Clause’s prohibi-
tion against multiple punishments. See United States v.
Halper, 490 U.S. at 448-49.
In Halper, the Court ruled that under the Double Jeopardy
Clause, a defendant who has already been punished in a
criminal prosecution, such as Levin, may not be subjected to
an additional civi/ sanction unless it was exclusively remedial,
since that would constitute multiple punishment:
[A] civil sanction that cannot fairly be said solely to
serve a remedial purpose, but rather can be explained
only as serving either retributive or deterrent purposes,
is punishment, as we have come to understand the term.
Id. at 448 (emphasis added; citation omitted). Applying the
Halper test here, it is submitted that the forfeiture of Levin’s
condominium constituted a second ‘‘punishment’’—by New
York State—prohibited by the Double Jeopardy Clause.
While endorsing Levin’s argument thai the forfeiture con-
stituted ‘‘punishment’’ under Halper, see 954 F.2d at 37, the
Second Circuit in 38 Whalers Cove Drive nonetheless dis-
missed Levin’s argument that the forfeiture violated the Dou-
ble Jeopardy Clause, since the ‘‘Double Jeopardy Clause is
inapplicable when separate governments prosecute the same
defendant, for the defendant has offended both sovereigns.’’
Id. 954 F.2d at 38.
The Second Circuit also rejected Levin’s contention that
this case fell within the ‘‘tool’’ exception to the ‘‘dual sover-
ea bathed.
11
eignty”’ principle. Id. Sce United States v. Aboumoussallem,
726 F.2d 906, 910 (2d Cir. 1984) (Newman, J.) (exception to
‘‘dual sovereignty’? doctrine exists where ‘‘one prosecuting
sovereign can be said to be acting as a ‘tool’ of the other.’’
(quoting Bartkus v. Illinois, 359 U.S. 121, 123 (1959)). The
Circuit stated in 38 Whalers Cove Drive:
This exception is not triggered simply by cooperation
between the two authorities, however. The state govern-
ment must have effectively manipulated the actions of
the federal government, so that federal officials retained
little or no independent volition . . . . [T]he fact that
the Attorney General may choose to share the forfeited
property with a local law enforcement agency is inade-
quate to show that the United States government, which
no doubt has its own interest in the proceeds, is here
acting as a ‘‘cover’’ for the Suffolk County Police
Department.
Id. 954 F.2d at 38 (citations omitted).
The Second Circuit’s conclusion was incorrect, and,
accordingly, the petition should be granted. Here, the United
States Government was plainly acting as the ‘‘tool’’ of the
Suffolk County Police and thus the ‘‘dual sovereignty”’ rule
should not have precluded application of Double Jeopardy
safeguards. The manner in which the United States Govern-
ment acted as a ‘“‘tool’’ is manifest: prior to November 1,
1990, when an amendment of New York C.P.L.R. §§ 1310
and 1311 (McKinney 1991) took effect—broadening New
York’s civil forfeiture laws to include real property—New
York State had no authority to civilly seize or forfeit real
property for narcotics violations. See 1990 McKinney’s Ses-
sion Laws, Ch. 655. What usually occurred, and transpired
here, is that the United States Government provided a mecha-
nism (under Section 881(a)(7)) whereby state authorities, such
as Suffolk County here, could civilly forfeit real property—
after criminal proceedings were completed—and thereby
enjoy a lion’s share of the forfeited proceeds. See 21 U.S.C.
§ 881(e)(1)(A). In short, the United States Government was
not simply a ‘“‘tool,’’ here it was an indispensable "008."
12
Levin argued on appeal that the Suffolk County Police
should have been precluded from sharing any forfeiture pro-
ceeds because it constituted a second punishment—following,
as it did, an initial criminal punishment—and, to that extent,
was barred by the Double Jeopardy Clause. See Halper, 490
U.S. at 448-49. The Second Circuit nevertheless rejected this
contention in 38 Whalers Cove Drive, stating: ‘‘Nor does the
receipt by the state enforcement agency of part of the pro-
ceeds implicate the state in any punishment by virtue of the
forfeiture since the forefeiture is being effected by the United
States government.’’ Jd.
This conclusion is insupportable in light of Halper. While
the forfeiture may have been technically ‘‘effected’’ by the
federal government, New York State fully participated in the
forfeiture proceeding, and is attaining, for its efforts, a sec-
ond punishment of Levin. Under Halper, this constituted a
multiple punishment, violative of the Double Jeopardy
Clause.
POINT Il
THE FORFEITURE OF LEVIN’S CONDOMINIUM
VIOLATED THE EIGHTH AMENDMENT
The Eighth Amendment provides: ‘‘Excessive bail shall not
be required, nor excessive fines imposed, nor cruel and unu-
sual punishments inflicted.’’ it is submitted that the dispro-
portionate forfeiture in this case—Levin’s equity interest in
the condominium is worth 300 times the very small amount
of drugs sold there—violated the Eighth Amendment.
Although it has been invoked almost exclusively in criminal
cases, the Court has left open the possibility that the Cruel
and Unusual Punishments or Excessive Fines Clauses of the
Eighth Amendment applies in certain civil cases. See
Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S.
at 275, n. 21 (Halper ‘‘implies that punitive damages awarded
to the Government in a civil action may raise Eighth Amend-
ments concerns.’’); Ingraham v. Wright, 430 U.S. 651, 669,
n. 37 (1977) (‘‘Some punishments, though not labeled ‘crimi-
13
nal’ by the State, may be sufficiently analogous to criminal
punishments in the circumstances in which they are adminis-
tered to justify application of the Eighth Amendment.’’).
The Second Circuit, in 38 Whalers Cove Drive, held that it
‘read Halper to apply to civil forfeitures.’’ Jd. 954 F.2d at
35. Nonetheless, relying on a test articulated by the Court in
Solem v. Helm, 463 U.S. 277, 290-92 (1983), the 38 Whalers
Cove Drive court rejected Levin’s arguments under the
Eighth Amendment, stating: ‘‘The Eighth Amendment pro-
scribes only extreme punishments. Even assuming that the
entire amount of the forfeiture here is punishment, it does
not violate the outer confines set by the Eighth Amend-
ment.’’ Jd. at 38 (emphasis added). We submit that the Sec-
ond Circuit’s analysis of the factors enunciated in Solem, and
its progeny, was improperly restrictive, and that forfeiture of
the condominium in fact did exceed Eighth Amendment para-
meters.
Solem articulated a three-part standard for ‘‘guiding’’ pro-
portionality claims under the Eighth Amendment: (1) the
gravity of the offense and the harshness of the penalty; (2)
the sentences imposed on other criminals in the same jurisdic-
tion; and (3) the sentences imposed for commission of the
same crime in other jurisdictions. Solem, 463 U.S. at 292.
While employing the outline of the Solem framework in adju-
dicating Levin’s Eighth Amendment claim, the 38 Whalers
Cove Drive panel nevertheless, disregarded, other ‘‘accepted
principles,’ Solem at 293, that are central to any Eighth
Amendment examination.
For example, the 38 Whalers Cove Drive court noted that
it ‘‘need not linger’’ as to the first Solem factor, citing three
decisions in which ‘‘the Supreme Court has recognized the
serious threat posed by drug offenses in the context of an
Eighth Amendment analysis.’’ 954 F.2d at 38-39. However,
the Second Circuit’s purported reiteration of the first Solem
factor—‘‘the inherent gravity of the offense’’—actually was a
truncated version of the original, since Solem in fact spoke of
‘the gravity of the offense and the harshness of the pen-
alty.’? 463 U.S. at 292 (emphasis added). The lower court
also ignored other principles that are bear on Solem’s first
14
factor, such as the ‘‘harm caused or threatened to the victim
or society, and the culpability of the offender.’’ Jd. 463 U.S.
at 292.
Moreover, as the Ninth Circuit observed in United States
v. Busher, 817 F.2d 1409 (9th Cir. 1987), in a similar context:
In considering the harm caused by defendant’s con-
duct, it is certainly appropriate to take into account its
magnitude: the dollar volume of the loss caused,
whether physical harm to persons was inflicted, threat-
ened or risked, or whether the crime has severe collateral
consequences, e.g., drug addiction. See Solem, 463 U.S.
at 293, 103 S. Ct. at 3011. In addition the court may
consider the benefit reaped by the convicted defendant.
With regard to the defendant’s culpability, Solem
observed that among other things, the defendant’s state
of mind and his motive in commiting the crime should
be considered.
Id. at 1415 (citations and footnote omitted); accord, United
States v. Littlefield, 821 F.2d 1365 (9th Cir. 1987).
Equally important, in evaluating the harshness of the pen-
alty under Solem, a court must consider ‘‘the total punish-
ment imposed for the offense, which would include not only
the forefeiture but any incarceration, fines or probation
imposed by the district court.’’ Busher, 817 F.2d at 1415 n.
10 (emphasis added). In short, is respectfully submitted that,
in 38 Whalers Cove Drive, the Second Circuit failed to take
into account these other, pertinent principles in analyzing the
first Solem factor; application of the complete first Solem
criterion would result in a different conclusion.
The Second Circuit’s analysis of the remaining two Solem
factors was equally flawed. In attempting to compare forfeit-
ure of the condominium to an ‘‘equivalent’’ sentence under
the federal Sentencing Guidelines, the lower court stated that
Levin ‘‘would presumptively be fined $30,000 and receive a
sentence of 10 to 37 months.”’ 954 F.2d at 39. Such a “‘pre-
sumptive’’ sentence is highly unrealistic. In actuality, Levin,
15
having pled guilty, would probably have earned a two-level
reduction, to Offense Level 10, and might well have been
sentenced to a term of probation coupled with conditions of
confinement. See Sentencing Guidelines, Section 5B1.1(a)(2).
While the appeals court recognized that the federal and
state sentences it posited were ‘‘merely possible sentences,’’
id., nevertheless, there is no valid parity since those criminal
sentences—after the obvious benefit of trial by jury—are not
truly comparable to punishment imposed via a summary
judgment motion. Moreover, as noted above, the lower
court’s analysis failed to take into account the total punish-
ment involved in assessing the second and third Solem
prongs. See Busher.
In sum, it is respectfully submitted that the Second
Circuit’s Eighth Amendment analysis was deficient. Under a
full-blown Solem analysis, the forfeiture of Levin’s condo-
minium would have failed to pass Eighth Amendment
muster.
POINT IV
FORFEITURE OF THE CONDOMINIUM VIOLATED
THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT
Forfeiture of the condominium also violated the Due Pro-
cess Clause of the Fifth Amendment. That provision applies
to any legal proceeding by which any person may be deprived
of “‘life, liberty, or property.’’ In its most elemental form,
substantive due process ‘‘protect[s]. . . the individual against
arbitrary action[s] of government,’’ Daniels v. Williams, 474
U.S. 327, 331 (1986) (citation omitted); see also, e.g., Lassi-
ter v. Department of Social Services, 452 U.S. 18, 24 (1981)
(due process ‘‘expresses the requirement of ‘fundamental fair-
ness’ ’’). As the Court has held, the protections of the due
process clause extend to ‘‘civil. . . defendants. . . [seeking]
to protect their property.’’ Logan v. Zimmerman Brush Co.,
455 U.S. 422, 429 (1982): As District Judge Nickerson recog-
nized, the interests protected by the Due Process Clause of
16
the Fifth Amendment and by the Eighth Amendment over-
lap. 747 F. Supp. at 179. Nevertheless, the Second Circuit,
relying on the Court’s decision in Calero-Toledo v. Pearson
Yacht Leasing Co., 416 U.S. 663, 689 (1974), rejected Levin’s
argument that the forfeiture of his condominium violated the
Due Process Clause of the Fifth Amendment, finding that
“Levin can hardly be said to have done everything possible
to prevent the property’s use for illegal purposes.’’ 954 F.2d
at 33. We submit that the Second Circuit’s conclusion was
erroneous.
The Court has long recognized that the Due Process Clause
limits the amount of a civil monetary penalty that may be
imposed pursuant to a statutory scheme. Hence, more than a
century ago, the Court applied the Due Process Clause in
reviewing the constitutionality of a statutory double-damages
penalty. Missouri Pacific Ry. Co. v. Humes, 115 U.S. 512,
522-23 (1885). Similarly in Waters-Pierce Oil Co. v. Texas,
212 U.S. 86 (1909), the Court again considered a due process
challenge to a state civil penalty, holding that the Constitu-
tion would be violated by ‘‘fines. . . [that] are so grossly
excessive as to amount to a deprivation of property without
due process of law.’’ 212 U.S. at 111. And in St. Louis, I.M.
& S. Ry. v. Williams, 251 U.S. 63 (1919), the Court recog-
nized that the Due Process Clause ‘‘places a limitation upon
the power of [governments] to prescribe [civil] penalties’’ that
are ‘‘wholly disproportioned to the offense and obviously
unreasonable.’’ Jd. at 66-67. See also, Southwestern Tele-
graph & Telephone Co. v. Danaher, 238 U.S. 482, 491 (1915)
(excessive penalties vacated since ‘‘so plainly arbitrary and
oppressive as to be nothing short of a taking of. . . property
without due process of law’’); Browning-Ferris Inds. v. Kelco
Disposal Inc., 492 U.S. at 275 (government prevented from
“‘extracting large payments or forfeitures for the purpose of
raising revenue or disabling some individual’’), and the opin-
ion in Browning-Ferris by retired Justice Brennan. P
The Court, in Halper, ruled that the Double Jeopardy
Clause of the Fifth Amendment restricts the amounts the.
government may recover in a civil False Claims action after a
17
defendant has already been punished in a criminal action,
stating:
We must leave to the trial court the discretion to deter-
mine .. . the size of the civil sanction the Government
may receive without crossing the line between remedy
and punishment.
Id. at 450. In Halper, the Court consequently vacated the
Government’s statutory recovery of $130,000 where it was
found to be ‘‘sufficiently disproportionate’ to the defen-
dant’s fraud, which amounted to $585. See also, Peterson v.
Richardson, 370 F. Supp. 1259, 1267 (N.D.Tex. 1973), aff'd,
508 F.2d 45 (Sth Cir.), cert. denied, 423 U.S. 830 (1975)
(restricting government to less than full statutory recovery
under False Claims Act when full sanction would be ‘‘unrea-
sonable’? and ‘‘not remotely related to’’ to government’s
actual losses and damages).
The principle that emerges from the foregoing is that, in
civil cases, the Due Process Clause restricts the Government
to reasonable damages, and prohibits the Government from a
recovery that is excessive, disproportionate, and/or
punitive. This rule of reason is also clearly applicable in the
civil forfeiture context. Thus, in United States v. One Tin-
toretto Painting, 691 F.2d 603, 608 (2d Cir. 1982), the court
noted that a forfeiture would be improper where ‘‘it would
simply be an arbitrary act, serving no legitimate government
interest, oppressive and harsh, and in our view contrary to
the Fifth Amendment.’’ Under these standards, in civil for-
feitures, as in the context of civil actions in general, the Due
Process Clause prevents the Government from recovering an
amount which is ‘‘wholly disproportioned’’ to the offense, or
which ‘‘punishes’’ or ‘‘disables an individual.’’ In such cases,
the taking is quintessentially an arbitrary forfeiture of the
claimant’s property that is fundamentally unfair, and which
deprives the claimant of due process of law.
Applying these precepts here, it is clear that the forfeiture
of Levin’s condominium would undeniably be disproportion-
ate and punitive, and thus violative of the Due Process
Clause. The forfeiture of Levin’s condominium, having a
18
value of more than $70,000, would be absurdly excessive and
disproportionate to the miniscule amount of drugs sold by
him. Indeed, the forfeiture would be twice as great as the
penalty considered as too harsh in Halper.
Contrary to the Second Circuit’s conclusion, the Court’s
decision in Calero-Toledo v. Pearson Yacht Leasing Co.,
does not mandate a different result. In Pearson Yacht, police
found one marijuana cigarette aboard a $20,000 yacht that
had been leased by Pearson. Although Pearson had no
involvement in or knowledge of the contraband aboard the
vessel, it was nonetheless forfeited, because the Court was
evidently not convinced that Pearson ‘‘did all that it reasona-
bly could to avoid having its property put to an unlawful
use.’’ Jd. 416 U.S. at 690. The Government argued in the
courts below that Pearson Yacht applies a fortiori to the case
at bar, because if the property of innocent owners may be
forfeited irrespective of magnitude, then certainly the prop-
erty of ‘‘non-innocent’’ owners, such as Levin, may be for-
feited. This argument miscontrues Pearson Yacht.
There are salient differences between Pearson Yacht and
the present case which deny it preclusive effect. First, the
claimant there sued under the ‘‘just compensation’’ clause of
the Fifth Amendment, and did not raise a substantive due
process claim; secondly, Pearson did not advance a ‘“‘dispro-
portionality’’ argument, i.e., that the forfeiture there was
beyond the scope of the Puerto Rican statute involved,
because of the small amount of drugs involved. In short, no
constitutional attack was mounted in Pearson Yacht that
addressed—let alone foreclosed—Fifth Amendment due pro-
cess examination in the present case.
In summary, the Due Process Clause plainly places outside
limits on the amounts that the Government may recover in
civil actions and forfeiture lawsuits. It is further clear that
the forfeiture of Levin’s premises transgressed those constitu-
tional boundaries, because of its punitive and disproportion-
ate dimensions.
19
Conclusion
For the foregoing reasons, the petition for a writ of certio-
rari should be granted.
Dated: New York, New York
April 17, 1992.
Respectfully submitted,
RICHARD B. LIND
345 Park Avenue
New York, New York 10154
(212) 888-0100
Attorney for Petitioner
Edward J. Levin
McCostTIs & LIND
Of Counsel
APPENDIX
la
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
ee
No. 981—-August Term, 1990
(Argued February 14, 1991 Decided January 3, 1992)
Docket No. 90-6268
7
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
—
CERTAIN REAL PROPERTY AND PREMISES KNOWN AS
38 WHALERS COVE DRIVE, BABYLON, NEW YORK,
Defendant,
EDWARD J. LEVIN,
Claimant-Appellant.
Before:
PIERCE, WINTER, and WALKER,
Circuit Judges.
2a
Appeal from a judgment of forfeiture pursuant to 21
U.S.C. § 881(a)(7), entered in the United States District
Court for the Eastern District of New York (Eugene H.
Nickerson, Judge) on October 4, 1990, on statutory and
constitutional grounds. Affirmed.
_
RICHARD B. LIND, New York, New York, for
Claimant-Appellant.
STEPHEN J. RIEGEL, Assistant United States
Attorney for the Eastern District of New
York (ANDREW J. MALONEY, United
States Attorney, ROBERT L. BEGLEITER,
Assistant United States Attorney, of
Counsel), Brooklyn, New York, for
Plaintiff-Appellee.
7
WALKER, Circuit Judge:
Claimant Edward J. Levin appeals from a judgment of
forfeiture entered pursuant to 21 U.S.C. § 881(a)(7) on
October 4, 1990, in a civil proceeding in the Eastern Dis-
trict of New York (Eugene H. Nickerson, Judge). That
judgment deprived Levin of his residence, which is
located at 38 Whalers Cove Drive, Babylon, New York.
We find that the forfeiture was authorized by the statute
and not prohibited by substantive due process. Levin also
argues that the forfeiture must be classified as punishment
under United States v. Halper, 490 U.S. 435 (1989), and
that as punishment, the forfeiture violates the Fifth and
Eighth Amendments. While we agree that Halper appears
to require us to presume the forfeiture to be punishment
and to afford the government an opportunity to prove oth-
Ni aeeenenenainenineeinmainneni
3a
erwise, the forfeiture, even if seen as punishment, does
not violate Levin’s constitutional rights. Accordingly, we
affirm the district court’s judgment of forfeiture.
BACKGROUND
This case concerns the forfeiture of Levin’s personal
residence, a condominium located at 38 Whalers Cove
Drive, Babylon, New York. The condominium, purchased
in 1977, is now worth approximately $145,000. Levin has
an equity interest in the property valued at approximately
$68,000; mortgages outstanding on the property total
$77,000.
In July, 1988, Levin twice sold cocaine inside the con-
dominium to a confidential informant for a total sum of
$250. The quantity of the sale is disputed but in any event
amounts to no more than 2 1/2 grams. The record indi-
cates, and the government does not dispute, that the con-
fidential informant requested that the first sale take place
inside the condominium. The second sale, on July 20, was
also made in Levin’s home—it is unclear who specified
the location. (We are not here concerned with a third
small sale which took place outside the condominium.)
The confidential informant telephoned Levin frequently
after the sales to request that Levin make further sales.
Levin declined.
Levin was arrested by the Suffolk County Police on
October 6, 1988 on charges of criminal sale of a con-
trolled substance based on the above transactions. The
condominium was searched. No drugs, weapons, large
amounts of cash, drug paraphernalia, or drug records were
discovered.
4a
Subsequent to his arrest, Levin began cooperating with
law enforcement authorities, and later pleaded guilty in
the Supreme Court of the State of New York for the
County of Suffolk to attempted criminal sale of a con-
trolled substance. He received a probationary sentence
and a small fine.
On November 10, 1988, the United States government
instituted an in rem forfeiture action against Levin’s con-
dominium, pursuant to 21 U.S.C. § 881(a)(7). On Novem-
ber 14, 1988 the government obtained an ex parte seizure
warrant for the premises. Pursuant to the warrant, the
United States Marshals Service seized the property, simul-
taneously searching it extensively. No indication of nar-
cotics activity was found.
After timely filing a claim of ownership to the property,
Levin moved to dismiss the complaint. The Government
cross-moved for summary judgment of forfeiture.
In a thoughtful, well-written opinion filed September
20, 1990, reported at 747 F. Supp. 173 (E.D.N.Y. 1990),
Judge Nickerson denied Levin’s motion to dismiss and
granted the government’s cross-motion for summary judg-
ment of forfeiture. The district court ruled that the prop-
erty was properly subject to forfeiture pursuant to the
terms of 21 U.S.C. § 881(a)(7). The district court also
rejected Levin’s arguments that the application of the for-
feiture provision in his case violated the Fifth and Eighth
Amendments to the United States Constitution. Judgment
of forfeiture was entered.
Levin then filed this appeal.
Sa
DISCUSSION
Levin raises four arguments: (1) the forfeiture is not
authorized under the statute, 21 U.S.C. § 881(a)(7); (2)
the forfeiture violates substantive due process; (3) the
Double Jeopardy Clause of the Fifth Amendment pro-
hibits the forfeiture; and (4) the Eighth Amendment pro-
hibits the forfeiture.
A. Forfeiture under 21 U.S.C. § 881(a)(7)
We turn first to the statutory argument. 21 U.S.C.
§ 881(a)(7) provides for 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 vio-
lation of the narcotics laws punishable by more than one
year’s imprisonment. As we observed in United States v.
141 st Street Corp., 911 F.2d 870, 878 (2d Cir. 1990), cert.
denied, 111 S. Ct. 1017 (1991), “Congress intended for-
feiture to be a powerful weapon in the war on drugs.” As
such, the statute is broadly drafted to reach a wide array
of property which may be used to accomplish illegal pur-
poses. Levin contends, however, that the statute must be
read to require the proving of a “substantial connection”
between the property and the crime. We disagree.
In United States v. Premises & Real Property at 4492 S.
Livonia Rd., 889 F.2d 1258, 1269 (2d Cir. 1989), reh’g
denied, 897 F.2d 659 (1990), we explicitly reiected this
argument, stating that the statute requires only a “nexus”
between the drug activity and the property. Here, the drug
activity was sufficiently connected with the property to
bring the property within the purview of the statute. As a
situs for the sales, the property “facilitated” them by per-
mitting them to be conducted in an atmosphere of relative
privacy. See United States v. Premises Known as 3639-
6a
2nd St., N.E., 869 F.2d 1093, 1096 (8th Cir. 1989), reh’g
denied, 1989 U.S. App. LEXIS 5212 (1989). We note fur-
ther that the statute permits forfeiture to be predicated
upon only a small quantity of drugs. See also United
States v. One 1986 Mercedes Benz, 846 F.2d 2, 5 (2d Cir.
1988) (per curiam). We therefore agree with the district
court that the property was subject to forfeiture under the
terms of the statute.
B. Substantive Due Process
Levin next argues that the civil forfeiture of his resi-
dence violates substantive due process. Substantive due
process protects the individual “against arbitrary action{s]
of government,” Daniels v. Williams, 474 U.S. 327, 331
(1986) (citation omitted). We disagree with Levin here as
well. The Supreme Court has long held that a forfeiture of
property used for illegal purposes may be deemed unduly
oppressive only when the owner of the forfeited property
is innocent of the wrongful activity, uninvolved and
unaware of it, and has done “all that reasonably could be
expected to prevent the proscribed use of his property.”
Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S.
663, 689, reh’g denied, 417 U.S. 977 (1974). Similarly, in
United States v. One Tintoretto Painting Entitled “The
Holy Family with St. Catherine & Honored Donor”, 691
F.2d 603 (2d Cir. 1982), we found that due process con-
cerns were raised by the forfeiture of a painting only
because the owner arguably acted “ ‘in good faith and
without negligence.’ ” 691 F.2d at 607 (quoting United
States v. One 1936 Model Ford V-8 DeLuxe Coach, 307
U.S. 219, 236 (1939)).
Here, Levin committed a crime inside the condo-
minium. Even if the informant was responsible for sug-
gesting the condominium as the site of the drug
7
7a
transaction, Levin can hardly be said to have done every-
thing possible to prevent the property’s use for illegal pur-
poses. Under Calero-Toledo, the forfeiture therefore does
not offend substantive due process.
C. Other Constitutional Arguments: Fifth Amendment
Double Jeopardy and Eighth Amendment
1. Classifying Civil Sanctions as Punishment
Levin’s arguments that the forfeiture violates the Dou-
ble Jeopardy Clause of the Fifth Amendment and the
Eighth Amendment’s bar on Cruel and Unusual Punish-
ment and Excessive Fines are predicated upon his con-
tention that the forfeiture is in reality a criminal penalty
and, as such, is subject to constitutional limitations on
punishment. See generally Pratt & Petersen, Civil For-
feiture in the Second Circuit, 65 St. John’s L. Rev. 653,
668-70 (1991) (discussing “disturbing implications” of
courts’ failure to regard civil forfeiture as punishment).
He argues that the forfeiture of his $68,000 interest in the
condominium—and the resultant loss of his home—as a
consequence of a sale of $250 worth of cocaine must be
seen as punishment, since it, or at least some part of it,
cannot be said to serve proper civil purposes.
Levin’s point here is not that Section 881(a)(7) is prop-
erly read as a penal, rather than civil, enactment, see gen-
erally United States v. Ward, 448 U.S. 242, 248, reh’g
denied, 448 U.S. 916 (1980); United States v. $2500 in
U.S. Currency, 689 F.2d 10, 14 (2d Cir. 1982), cert.
denied, 465 U.S. 1099 (1984), but rather that the appli-
cation of the statute in the circumstances of his case is
punishment. Levin relies on United States v. Halper, 490
U.S. 435 (1989), in which the Supreme Court found that
a civil sanction imposed following a criminal sentence for
8a
filing false claims violated the Double Jeopardy Clause’s
proscription of multiple punishments.!
| In Halper, an employee of a medical laboratory filed
| sixty-five false claims for Medicare reimbursement, each
of which overstated the amount reimbursable to the lab by
$9, resulting ultimately in a fraud on the government of
$585. Under the False Claims Act, 31 U.S.C. §§ 3729-31,
the government sought a civil penalty of $2000 plus dou-
ble damages for each violation of the Act. This subjected
Halper to a penalty of over $130,000, “exponentially
greater than the amount of the fraud, and. . . also many
times the amount of the Government’s total loss.” 490
U.S. at 445. Despite the sanction’s imposition in a civil
proceeding, pursuant to a civil enactment, the Justices
unanimously recognized that the sanction as applied could
be “so extreme and so divorced from the Government’s
damages and expenses as to constitute punishment.” 490
U.S. at 442. ah
The Court applied a “rule of reason” to the sanction.
Finding it “overwhelmingly disproportionate,” and with-
out “rational relation” to the purported goal of compen-
sating the government, the Court presumed the sanction to
be punitive. 490 U.S. at 449-50. It then shifted the burden
to the government to prove otherwise, through an
“accounting of [its] damages and costs.”? 490 U.S. at 449-
50.
1 The Halper Court stated that multiple sanctions such as those
imposed on Halper would not violate the Double Jeopardy Clause if they
were imposed in a single proceeding. Halper, 490 U.S. at 440-41, 447;
see North Carolina v. Pearce, 395 U.S. 711, 717 (1969); Note, United
States v. Halper, Punitive Civil Fines, and the Double Jeopardy and
Excessive Fines Clauses, 66 N.Y.U.L.Rev. 112, 137-39 (1991).
2 The Court concluded provisionally that the $130,000-plus sanction
was punitive, based on the district court’s estimate of the government's
i
,
9a
The Court cautioned, however, that the burden of
accounting for a civil sanction would fall on the govern-
ment only in the “extreme case,” and that leeway was to
be given the government’s attempt to achieve “rough
remedial justice,” particularly in view of quantifying the
“precise amount of the Government’s damages and costs.”
Halper, 490 U.S. at 449; see also United States ex rel.
Marcus v. Hess, 317 U.S. 537, 550-51, reh’g denied, 318
U.S. 799 (1943). As a general rule, therefore, particularly
where few statutory violations are involved, the Court
stated that it would not disturb a “fixed penalty plus dou-
ble damages provision,” together with “reasonable liq-
uidated damages clauses.” Halper, 490 U.S. at 449.
Where an accounting is appropriate, however, Halper
requires a district court to compare the government’s
proven damages and costs against the sanction the gov-
ernment seeks to impose. Following an accounting, a
sanction must be classified as punitive when the size of
the sanction can not fairly be attributed to remedial pur-
poses, “but rather can only be explained as also serving
either retributive or deterrent purposes.” 490 U.S. at 448
(emphasis added). The amount in excess must be deemed
punishment.
The classification of a sanction as punitive under
Halper does not automatically transform the sanction pro-
ceeding into a criminal prosecution, with all the attendant
procedural safeguards required by the Constitution. For
example, the applicability of Sixth Amendment protec-
tions to statutory proceedings and the standard of proof
used in those proceedings are determined not with refer-
ence to the particular sanction ultimately imposed, but
costs and damages at $16,000. The Court then remanded the case, how-
ever, giving the government an opportunity to prove that its costs and
damages in fact exceeded the district court's estimate.
EEE
10a
rather by considering the proceeding’s inherent nature,
identified through recourse to “statutory language, struc-
ture, and intent.” Halper, 490 U.S. at 447 (citing United
States v. Ward, 448 U.S. at 248-51).
Nonetheless, certain constitutional protections do attach
when an individual is subjected to a “civil” sanction that
in effect is punishment. Such an individual is protected
against multiple punishments under the Double Jeopardy
Clause, because that constitutional protection is “intrin-
sically personal,” serving a “humane” interest. See
Halper, 490 U.S. at 447 (quoting United States ex rel.
Marcus v. Hess, 317 U.S. at 554 (Frankfurter, J., con-
curring)).
Furthermore, we agree with Levin that Eighth Amend-
ment protections attach when an individual is subjected to
a civil sanction classified as punitive under Halper. Like
the Double Jeopardy Clause, the Eighth Amendment is a
“personal” and “humane” limitation on the government's
ability to punish an individual. Although the Supreme
Court did not explicitly so rule in Halper, in Browning-
Ferris Industries, Inc. v. Kelco Disposal, Inc., 492 U.S.
257 (1989), decided shortly after Halper, the Court stated
that Halper “implies that punitive damages awarded to the
Government in a civil action may raise Eighth Amend-
ment concerns. . . .” 492 U.S. at 275 n.21; see also
Ingraham v. Wright, 430 U.S. 651, 669 n.37 (1977)
(“Some punishments, though not labeled ‘criminal’ by the
State, may be sufficiently analogous to criminal punish-
ments in the circumstances in which they are administered
to justify application of the Eighth Amendment.”); Note,
Crossing the Line Between Rough Remedial Justice and
Prohibited Punishment, 65 Wash. L. Rev. 437 (1990).
lla
2. Implications of United States v. Halper for civil
forfeitures
We read Halper to apply to civil forfeitures. Forfeitures
that are overwhelmingly disproportionate to the value of
the offense must be classified as punishment unless the
forfeitures are shown to serve articulated, legitimate civil
purposes. See 21 U.S.C. § 881 (forfeiture provisions).
Among those purposes, the government may use in rem
forfeiture to remove instrumentalities of crime from gen-
eral circulation and prevent further illicit use of harmful
objects, a goal springing from the historic fiction under-
lying forfeiture that “an instrument of harm is itself cul-
pable.” United States v. Certain Real Property and
Premises Known as 38 Whalers Cove Drive, Babylon,
New York, 747 F. Supp. 173, 177 (E.D.N.Y. 1990) (here-
inafter 38 Whalers Cove Drive); see One 1958 Plymouth
Sedan v. Pennsylvania, 380 U.S. 693, 699 (1965); United
States v. One Assortment of 89 Firearms, 465 U.S. 354,
363 (1984); Calero-Toledo v. Pearson Yacht Leasing Co..,
supra. We have also stated that forfeiture of an object may
substitute for a civil fine, “imped[ing] the success of the
criminal enterprise by eliminating its resources and instru-
mentalities,” United States v. $2500 in U.S. Currency, 689
F.2d at 13; see Calero-Toledo v. Pearson Yacht Leasing
Co., 416 U.S. at 687. The government may also use for-
feitures to compensate the government’s investigation and
enforcement expenditures, in addition to any damages the
government may suffer directly as a result of criminal
acts, essentially as a form of “liquidated damages” for
harm caused by an individual wrong-doer. See 21 U.S.C.
§ 881(e); One Lot Emerald Cut Stones & One Ring v.
United States, 409 U.S. 232, 237, 238 (1972) (per
curiam); Calero-Toledo v. Pearson Yacht Leasing Co., 416
U.S. at 687 & n. 26.
12a
Civil forfeitures do not retain their civil character if
they are used in order to achieve deterrence or retribution,
however. “Retribution and deterrence. . . are not legit-
imate nonpunitive governmental objectives.” Bell v.
Wolfish, 441 U.S. 520, 539 n. 20 (1979). We acknowledge
that otherwise proper forfeiture actions may have the col-
lateral effect of deterring future drug offenders. See 38
Whalers Cove Drive, 747 F. Supp. at 179. This fact alone
will not render a particular forfeiture punitive in nature.
Rather, Halper requires us to examine whether the for-
feiture at hand is fully justified by the civil and remedial
purposes it ostensibly serves, or whether it or a portion
thereof can be explained only with reference to punitive
goals.
In evaluating whether a forfeiture under § 881(a)(7)
serves its ostensible goals, we focus upon the effects on
the claimant who has violated the statute, despite the fact
that the forfeiture actions are brought in rem. See Livonia
Road, 889 F.2d at 1270. See also United States v. Huber,
603 F.2d 387, 397 (2d Cir. 1979), cert. denied, 445 U.S.
927 (1980) (for Eighth Amendment purposes, “there is no
substantial difference between an in rem proceeding and
a[n in personam criminal] forfeiture proceeding brought
directly against the owner”); cf. United States v. U.S. Coin
& Currency, 401 U.S. 715, 718 (1971). Where an indi-
vidual has suffered severe penalties in an in rem forfeiture
proceeding, it is particularly appropriate to address the
substance of that proceeding. See United States v. On
Leong Chinese Merchants Ass’n Bldg., 918 F.2d 1289,
1299 (7th Cir. 1990) (Cudahy, J., concurring); United
States v. Premises Known as 3639-2nd St., N.E., 869 F.2d
at 1098 (Arnold, J., concurring).
We therefore hold that a forfeiture under 21 U.S.C.
§ 881(a)(7) will not be presumed punitive where the
l3a
seized property has been used substantially to accomplish
illegal purposes, so that the property itself can be said to
be “culpable” or an instrumentality of crime. See Dob-
bins’ Distillery v. United States, 96 U.S. 395, 401 (1878)
(offense “attached primarily” to distillery). Where the
seized property is not itself an instrumentality of crime,
however, and its total value is overwhelmingly dispro-
portionate to the value of controlled substances involved
in the statutory violation, there is a rebuttable presump-
tion that the forfeiture is punitive in nature. In using the
value of the drugs as a rough measuring stick, we follow
the Halper Court’s decision to evaluate the sanction
against the value obtained by Halper’s criminal conduct.
We also note that the Sentencing Commission, through the
Guidelines, has utilized the weight of drugs and, implic-
itly, their value to differentiate between punishments for
violations of the narcotics laws.
The government may then account under Halper in
order to show that the forfeiture serves legitimate civil
goals. The government may present its costs of investi-
gation and detection, as well as other costs and damages
attributable to the criminal misconduct of the claimant.
See 21 U.S.C. § 881(e)(3)(A) (relating transfer of for-
feited property to state agency to “total law enforcement
effort with respect to the [individual] violation of law on
which the forfeiture is based”). See United States v. Hall,
730 F. Supp. 646, 655 (M.D. Pa. 1990); Kvitka v. Board of
Registration in Medicine, 407 Mass. 140, 145, 551 N.E.2d
915 (1990) (examining governmental losses and harm to
identifiable victims directly caused by physician’s fraud),
cert. denied, 111 S. Ct. 74 (1990). The assessment of
costs and damages must be individualized. A reasonable
allocation of more generalized enforcement costs—in the
nature of overhead—may also be allowed. The allocation
14a
must not be incommensurate with the portion of the over-
all enforcement problem represented by the offense at
hand. While we are extremely sympathetic to the need to
address our nation’s serious narcotics problems, we do not
believe that a disproportionately large forfeiture can be
reasonably justified as a civil fine as opposed to punish-
ment by placing full responsibility for the “war on drugs”
on the shoulders of every individual claimant. This is par-
ticularly so where the individual claimant’s violations are
relatively minor. See 38 Whalers Cove Drive, 747 F.
Supp. at 180; see also Halper, 490 U.S. at 449 (com-
pensable portion of the “costs and damages” suffered by
the government was that directly caused by the defen-
dant); United States v. Bizzell, 921 F.2d 263, 267 (10th
Cir. 1990); compare United States v. A Parcel of Land
with a Building Located Thereon at 40 Moon Hiil Road,
884 F.2d 41, 44 (1st Cir. 1989). Following the accounting,
| the trial court may then determine whether the govern-
| ment has carried its burden of showing that the sanction
| is entirely assignable to civil purposes or whether part or
all of the sanction is designed to serve punitive purposes.
3. Application of United States v. Halper to the Instant
Case
With these principles in mind, we turn to the instant
case. We consider first whether the forfeiture could be
considered a removal of an “instrumentality of crime”
from general circulation. The government apparently con-
cedes, however, that forfeiture is not sought on this
ground. See 38 Whalers Cove Drive, 747 F.Supp. at 178
(“The government makes no suggestion that Levin’s con-
dominium was contraband or somehow itself culpable.”).
We therefore do not address that argument.
|
‘
15a
Instead, the government’s sole contention here is that
the sanction serves other civil goals such as compensa-
tion. Following Halper, we therefore examine whether the
forfeiture is disproportionately large, relative to the value
of the drug transactions which violated 21 U.S.C.
§ 881(a)(7). The forfeiture of Levin’s interest in the res-
idence was close to three hundred times the total value of
cocaine sold inside it. We find as a matter of law that the
forefeiture is overwhelmingly disproportionate compared
to the value of the relevant drug transactions, and that
therefore a rebuttal presumption that the forfeiture is
punitive in nature is created.
If the resulting attachment of constitutional protections
under Halper would have any effect on the result of this
case, we would be inclined to vacate Judge Nickerson’s
judgment of forfeiture and remand the case to permit the
government an opportunity to rebut the presumption by
showing through an accounting of its costs that the for-
feiture is civil in nature. However, assuming arguendo
that following a government accounting the district judge
would conclude that the forfeiture, even up to the full
amount of Levin’s equity interest in the condominium,
amounted to punishment and not a civil sanction, the
judgment would still survive scrutiny. For reasons that we
now turn to, the forfeiture does not violate the constitu-
tional limits on punishment set by the Double Jeopardy
Clause and the Eighth Amemdment.
a. Double Jeopardy Clause
Levin maintains that because the forfeiture proceeding
followed his prosecution, plea of guilty, and sentencing in
state court, the forfeiture violates his Double Jeopardy
Clause right to be free from multiple punishments.
l6a
We disagree. Even assuming that the forfeiture is a
criminal penalty, the Double Jeopardy Clause prohibits
two criminal punishments for the same offense only when
they are sought by the same sovereign government. The
Double Jeopardy Clause is inapplicable when separate
governments prosecute the same defendant, for the defen-
dant has offended both sovereigns. Heath v. Alabama, 474
U.S. 82, 87-89 (1985).
Levin argues on appeal that his case falls within an
exception to this “dual sovereignty” doctrine. The Double
Jeopardy Clause may be violated despite single prosecu-
tions by separate sovereigns when one “prosecuting
sovereign can be said to be acting as a ‘tool’ of the other.”
United States v. Aboumoussallem, 726 F.2d 906, 910 (2d
Cir. 1984) (quoting Bartkus v. Illinois, 359 U.S. 121, 123
(1959)); United States v. Jordan, 870 F.2d 1310, 1312 (7th
Cir.), cert. denied, 110 S. Ct. 101 (1989); United States v.
Russotti, 717 F.2d 27, 31 (2d Cir. 1983), cert. denied, 465
U.S. 1022 (1984). This exception is not triggered simply
by cooperation between the two authorities, however. The
state government must have effectively manipulated the
actions of the federal government, so that federal officials
retained little or no independent volition. United States v.
Russotti, 717 F.2d at 31; United States v. Liddy, 542 F.2d
76, 79 (D.C. Cir. 1976). Levin contends only that the Suf-
folk County Police Department will receive a portion of
the forfeiture proceeds. That distribution is apparently
pursuant to statute. 21 U.S.C. § 881(e)(1)(A) authorizes
the Attorney General to transfer part or all of the forfeited
personal property to “any State or local law enforcement
agency which participated directly in the seizure or for-
feiture of the property.” But the fact that the Attorney
General may choose to share the forfeited property with
a local law enforcement agency is inadequate to show that
:
17a
the United States government, which no doubt has its own
interest in the proceeds, is here acting as a “cover” for the
Suffolk County Police Department. Nor does the receipt
by the state enforcement agency of part of the proceeds
implicate the state in any punishment by virtue of the for-
feiture since the forfeiture is being effected by the United
States government.
b. Eighth Amendment
Levin asserts that the forfeiture violates the Cruel and
Unusual Punishment Clause of the Eighth Amendment, or
its Excessive Fines Clause.* We find the arguments with-
out merit. The Eighth Amendment proscribes only
extreme punishments. Even assuming that the entire
amount of the forfeiture here is punishment, it does not
violate the outer confines set by the Eighth Amendment.
The Cruel and Unusual Punishment Clause prevents the
imposition of a punishment which is “grossly dispropor-
tionate” to the crime committed. Solem v. Helm, 463 U.S.
277, 290-92 (1983). Three factors are relevant to this
inquiry: (1) the inherent gravity of the offense; (2) the
sentences imposed for similarly grave offenses in the
same jurisdiction; and (3) sentences imposed for the same
crime in other jurisdictions. We need not linger over the
first factor. Levin does not dispute his participation in two
sales of cocaine. The Supreme Court has recognized the
serious threat to individuals and society posed by drug
offenses in the context of an Eighth Amendment analysis.
See Harmelin v. Michigan, U.S. , aed aoe.
2680 (1991) (upholding mandatory life sentence for pos-
3 Levin appears to mention, but does not press, the possibility that the
Excessive Fines Clause might apply to sanctions purely civil in nature.
See Browning-Ferris Industries, Inc. v. Kelco Disposal, Inc., 492 U.S.
at 263-64, 275. We accordingly decline to address the issue.
18a
session of 672 grams of cocaine); id. at 2698 (Scalia, J.)
(Michigan legislature may take appropriate measures to
address “the situation on the streets of Detroit”); id. at
2706 (Kennedy, J.) (petitioner’s drug offense threatened
“grave harm”); see also National Treasury Employees
Union v. Von Raab, 489 U.S. 656, 668 (1989) (drug use
and distribution one of “greatest problems affecting the
health and welfare of our population”).
Further, the punishments meted out by the federal gov-
ernment and other jurisdictions for similar crimes indicate
that the forfeiture of Levin’s condominium is not aber-
rational. Federal law authorizes a sentence of twenty
years and a fine of $1,000,000 for the distribution of
cocaine in an amount less than 500 grams. 21 U.S.C.
§ 841. The Sentencing Guidelines assign a Base Offense
Level of 12 to transactions involving less than 25 grams
of cocaine. Depending upon criminal history, a defendant
who had distributed the same amount of cocaine as Levin
would presumptively be fined $30,000 and receive a sen-
tence of 10 to 37 months. The state courts in this circuit
authorize punishments on a similar scale. Under New
York law, a defendant who had distributed the same quan-
tity of cocaine as Levin would be exposed to 8 years and
4 months imprisonment and $50,000 in fines. N.Y. Penal
Law §§ 220.41, 70.00, 80.00. Under Vermont law, a
defendant distributing 2.5 grams or more of cocaine (but
less than one ounce) may receive five years of imprison-
ment and a fine of $100,000. Vt. Stat. Ann. tit. 18,
§ 4231. Connecticut law authorizes a sentence of 20 years
and a fine of $10,000 for distribution of more than 0.5
grams of cocaine. Conn. Gen. Stat. § 21a-278(b); § 53a-
41. We recognize that these are merely possible sentences
and are not conclusive as to what a court might do in an
individual case. Nonetheless, we infer from the statutes
Ticocaiaiiaieeaniaieeaaeiaeamaciainieeaneitie
19a
that the imposition of the equivalent of a $68,000 fine in
this case, while large, is not a grossly disproportionate
punishment within the meaning of Eighth Amendment
jurisprudence.
As to the Excessive Fines Clause, the Supreme Court
has provided no guidance, except to observe that fines
must be closely scrutinized because they benefit the gov-
ernment. Unlike other forms of punishment that impose
costs on government, fines create revenue. Harmelin v.
Michigan, 111 S. Ct. at 2693 n.9 (Scalia, J.); cf. Brown-
ing-Ferris Industries, Inc. v. Kelco Disposal, Inc., 492
U.S. at 275 (Excessive Fines Clause possibly applicable
to revenue-raising efforts through fines, other payments,
or forfeitures). We need not decide at exactly what point
a fine or forfeiture might violate the Excessive Fines
Clause, for wherever such a line could be drawn, this for-
feiture would be proper. Judging from the penal laws of
the United States and the various states mentioned above,
a fine of many thousands of dollars for a minor drug
_ offense is not beyond the pale. Cf. Calero-Toledo v. Pear-
son Yacht Leasing Co., supra (upholding against due pro-
cess challenge seizure of innocent owner’s $19,800 yacht
upon which marijuana cigarette was discovered). We con-
clude that the forfeiture, if truly a punishment, does not
violate the Eighth Amendment.
CONCLUSION
The judgment of forfeiture is affirmed.
20a
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
88 C 3550
—»—
UNITED STATES OF AMERICA,
Plaintiff,
—against—
CERTAIN REAL PROPERTY AND PREMISES KNOWN AS
38 WHALERS COVE DRIVE, BABYLON, NEW YORK,
Defendant.
a
ANDREW MALONEY, United States Attorney
(Stephen J. Riegel, Esq., of Counsel)
Brooklyn, NY
for Plaintiff
RICHARD B. LIND, ESQ.
New York, NY
for claimant Edward J. Levin
pe
MEMORANDUM AND ORDER
NICKERSON, District Judge:
This action arises from an order under 21 U.S.C.
§ 881(a)(7) of the Comprehensive Drug Abuse and Control
Act of 1970 authorizing seizure of a condominium alleged to
have been used to ‘‘facilitate’’ two cocaine sales. Claimant
Edward Levin moves to dismiss the complaint. The United
State cross-moves for summary judgement.
Levin argues that his property was not used to ‘*facilitate”’
a drug transaction under § 881(a)(7) and that the forfeiture
would violate his rights under the Eight Amendment and the
Double Jeopardy and Due Process clauses of the Fifth
Amendment to the United States Constitution.
2la
I.
The critical facts ate undisputed.
Levin, the owner of the condominium, was arrested for
three sales of cocaine to undercover agents. On July 6, 1988,
a confidential informant and a Suffolk County police officer,
Joseph Emiddio, went to Levin’s home and bought one and
one half grams of cocaine for $150. Levin says that the confi-
dential informant requested that the sale take place in the
condominium. According to Emiddio, Levin produced a half-
gram packet of cocaine from a bowl in his kitchen cabinet.
The second sale took place on July 20, 1988, also at Levin’s
home. Emiddio paid Levin $100 for a plastic vial containing
one gram of cocaine, which Levin produced from the second
floor of the premises. Another sale, not at issue in this pro-
ceeding, took place in Levin’s car.
During the next ten weeks Emiddio called Levin several
times per day to arrange further drug transactions, but Levin
was unwilling. Levin also states Emiddio was aware that he
had minor drug habit, and that the small amount of drugs
Emiddio saw were clearly for Levin’s personal use.
Immediately upon his arrest in October 1988 on charges of
criminal sale of a controlled substance in violation of
§ 220.39.1 of New York Penal Law, Levin cooperated with
the Suffolk County Police, acting as intermediary in another
narcotics sale held at the condominium at Emiddio’s direc-
tion.
A search of the premises disclosed no drugs, weapons, or
other evidence of drug trade. The United States seized the
premises on November 4, 1988. In March 1989, Levin pled
guilty to one count of attempted criminal sale of a control
substance in the third degree, pursuant to Section 110.05 of
the New York State Penal Law.
Since the seizure Levin and a friend have continued to
reside at the premises under an ‘‘Occupancy Agreement”’
with the government.
22a
II.
The statutory provisions relating to drug abuse prevention
and control are contained in 21 U.S.C, §§ 810—971. Section
853 provides for criminal forfeiture from those convicted
under the statute. Section 881 provides for civil forfeiture,
and section 881(a)(7), the subsection at issue here, in perti-
nent part, makes ‘“‘subject to forfeiture to the United States’’:
All real property, including any right, title, and interest
_ in the whole of any lot or tract of land and any
appurtenances or improvements, 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 title
punishable by more than one year’s imprisonment|.]
Where the government seeks a forfeiture section 881(d),
which incorporates the procedures provided for in 19 § 1615
for customs forfeitures, places upon it the burden to demon-
strate probable cause to believe the property was used, or
intended to be used, to facilitate a drug transaction punish-
able under federal law. Then, unless the claimant introduces
evidence that the government has not met factual predicates
for forfeiture, the court may grant summary judgment for
the government. United States v. The Premises and Real
Property at 4492 South Livonia Road, 889 F.2d 1258, 1267
(2d Cir. 1989).
The sale by Levin of any amount of cocaine was punish-
able under Section 841(b)(1)(C) by more than one year’s
imprisonment. Levin does not deny making the sales but
argues that he did not use his condominium to **facilitate”’
their commission within the meaning of section 881(a)(7). He
cites the legislative history, in particular the 1984 Senate
Committee Report, explaining the addition of real property
to the list of items forfeitable. The report states:
Under current law, if a person uses a boat or car to
transport narcotics or uses equipment to manufacture
dangerous drugs, his use of the property renders it sub-
ject to civil forfeiture. But if he uses a secluded barn to
23a
store tons of marijuana or uses his house as manufactur-
ing laboratory for amphetamines, there is no provision
to subject his real property to civil forfeiture, even
though its use was indispensable to the commission of a
major drug offense and the prospect of the forfeiture of
the property would have been a powerful deterrent.
S. Rep. No. 225, 98th Cong., Ist Sess. 195, reprinted in 1984
U.S. Code Cong. & Admin. News 3182, 3378 (Senate
Report).
Levin says that his condominium was far from ‘‘indispen-
sable’’ to the two minor cocaine sales and that in any event
he committed no ‘‘major’’ drug offense. He contends that
before finding the home forfeitable, the court must find a
*“‘substantial connection’’ between the use of the property and
the drug sales.
The court has found no decision construing the above pas-
sage from the Senate Report as suggesting that as a condition
of forfeiture the court must find the property ‘‘indispensa-
ble’? to the drug transaction, see, United State v. Certain
Lots in Virginia Beach, 657 F.Supp. 1062, 1065 (E.D. Va.
1987). Some courts have read the legislative history to require
a finding and the ‘‘substantial connection’’ between the prop-
erty and the drug transaction. See id, and United States v.
$12,585, 669 F.Supp. 939 (D. Minn. 1987). But the Court of
Appeals for this circuit rejected such standard and held that
there need only be a ‘‘sufficient nexus.’’ See United States v.
One 1974 Cadillac Eldorado, 548 F. 2d 421, 423 (2d. Cir.
1977), South Livonia Road, 889 F. 2d 1258 at 1269.
On two occasions claimant produced a controlled substance
for sale from a place in his dwelling. The use of the premises
repeatedly to sell and to safekeep drugs undoubtedly ‘‘facili-
tated’’ the ensuing sales according to the common definition
of the term, ‘‘to make easier.”” The Random House Dictio-
nary of the English Language 840 (1969). Although Levin’s
unrefuted affidavit says that one of the sales took place at his
hoe on the suggestion of the police officer, he makes no
contention that the presence of drugs in his home was
momentary or merely fortuitous. Cf. Certain Lots in Virginia
24a
Beach, supra, 657 F.Supp. at 1065. The court finds the suffi-
cient mexus between the property and the drugs to conclude
that claimant used his home to ‘‘facilitate’’ their sale.
The court rejects the argument that the statute authorizes
forfeiture of property only when used to facilitate ‘‘major”’
transactions. The wording of the statute does not so provide.
It allows forfeiture if the property is used to facilitate com-
mission of even a single felony punishable under Title 21. As
aoted above, the sale of any amount of cocaine is such a fel-
ony. The Court of Appeals for this circuit has held that for-
feiture may be predicated on a minute quantity of drugs. See
South Livonia Road, 889 F.2d at 1269-1270 and United
States v. One 1986 Mercedes Benz, 846 F.2d 2, 5 (2d Cir.
1988).
The government has shown that there was probable cause
to believe Levin used his condominium to facilitate cocaine
sales. He has not called the government’s proof into ques-
tion. Forfeiture in this case may produce a harsh result, ren-
dering homeless a man whom the state court declined to
incarcerate. But that is what section 881(a)(7) contemplated.
See South Livonia Road, 889 F.2d at 1271.
Il.
A.
The question remains whether the statute as applied is
unconstitutional.
Levin invokes several constitutional provisions.
The Double Jeopardy clause of the Fifth Amendment pro-
vides that no person shall ‘‘be subject for the same offense to
be twice put in jeopardy of life and limb.’’ The Eight
Amendment recites, ‘‘Excessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punish-
ment inflicted.”” The fifth Amendment guarantees that no
person shall be ‘deprived of life, liberty, or property without
due process of law.”’
25a
B.
Even if forfeiture in this case were to be regarded as a
criminal ‘‘punishment,’’ the Double Jeopardy clause does not
apply. It prohibits two criminal punishments for the same
offense only where inflicted by the same sovereign. Heath v.
Alabama, 474 U.S. 82, 87-89 (1989). The United States does
not subject a person to double jeopardy when it seeks a for-
feiture predicated on acts already punished by the state. See
United States v. A Parcel of Land with a Building Located
Thereon, 884 F.2d 41, 43 (Ist Cir. 1989). Thus, even if a
punishment, the forfeiture is not a punishment for the ‘‘same
offense’’ for which the state convicted Levin.
Cc.
The government may seek forfeiture of property associated
with drug transactions in criminal prosecutions, e.g. 21
U.S.C. § 853, or in civil proceedings, e.g. 21 U.S.C. § 881.
Where the proceeding is avowedly criminal, plainly the
accused is entitled to all the procedural protection offered by
the Fifth and Sixth Amendments. He also receives the sub-
stantive benefit of the Eight Amendment’s prohibitions
against excessive bail or fines and cruel and unusual punish-
ments.
Where the proceeding is labelled ‘‘civil’’, the chief question
with which the cases have struggled is to what extent, if at
all, the person whose property is at stake must be given the
procedural and substantive rights accorded a person charged
with crime. Frequently the decisions have turned on whether
the forfeiture is deemed a ‘‘punishment’’.
In a criminal case the defendant may be punished by being
fined or by being required to forfeit property, at least where
the property was obtained through the crime, or was used in
connection with or to facilitate the crime. See e.g., 21 U.S.C.
§ 8536 and 18 U.S.C. § 1963(a). The only limitation is that
imposed by the Eight Amendment’s prohibition of ‘‘excessive
fines’? or ‘‘cruel and unusual punishments.’’ Under that
amendment the criminal punishment may not be ‘‘dispropor-
26a
tionate t the crime committed.’’ Solem v. Helm, 463 U.S.
277, 284-88 (1983) and cases cited.
Where forfeiture is sought in a proceeding denominated as
civil, the law is not so simple. Jn rem forfeiture, that is, for-
feiture of the thing, grew from the ancient notion that an
instrument of harm is itself culpable, and must provide expia-
tion for the injury. See O. Holmes, The Common Law,
Ch. 1 (1881) and the oft-quoted passage from Exodus 21:28,
‘‘fiJf an ox gore 4 man or a woman, and they die, he shall be
stoned and his fiesh shall not be eaten.”’ The early English
institution of the deodand, something ‘given to God,”’
required that the value of an instrument of death be forfeited
to the King, who would apply it to charitable uses or masses
for the victim’s soul. Calero-Toledo v. Pearson Yacht Leas-
ing Co., 416 U.S. 663, 681 n. 16, 682 (1974). Though the
deodand vanished from English law, the ascription of person-
_ality to offending objects persisted into the modern law of
civil forfeiture. See J.W. Goldsmith, Jr. v. United States, 254
U.S. 505 510-11 (1921).
In the United States, in rem forfeiture was early established
in federal law though navigation and customs acts allowing
seizure of vessels or property used in violation of the law, a
useful expedient in situations where the owner might be diffi-
cult to bring into court. See Note, A Proposal to Reform
Criminal Forfeiture Under RICO and CCE, 97 Harv. L. Rev.
1929, 1933 (1984). The fiction of holding the property, rather
than the owner or crew, responsible for the offense served to
assure indemnity to those injured. United States v. Brig
Malek Adhel, 43 U.S. (2 How.) 209, 233-34 (1844); cf. Dob-
bin Distillery v. United States, 96 U.S. 395 (1877) (forfeiture
of distillery operated to defraud the government).
Even in more recent times the Supreme Court recognized
that the harmful nature of a thing or the illegality of the
claimant’s possession of it justified its forfeiture as ‘‘contra-
band”. See One 1958 Plymouth Sedan v. Pennsylvania, 380
U.S. 693, 699 (1965); cf. United States v. One Assortment of
89 Firearms, 465 U.S. 354 (1984) (forfeiture served to keep
‘potentially dangerous weapons out of the hands of unli-
censed dealers’’).
‘
27a
The government makes no suggestion that Levin’s condo-
minium was contraband or somehow itself culpable. The
court has thus no need to consider what vestiges of the
ancient fiction remain in the law. See United States v. Tax
Lot 1500, 861 F.2d 232, 235 (9th Cir. 1988); United States v.
Huber, 603 F.2d 387, 397 (2d Cir. 1979).
The government does contend that the forfeiture cannot
constitute a ‘‘punishment’’ within the meaning of the Eight
Amendment because this is a ‘‘civil’’ not a ‘‘criminal’’ pro-
ceeding. Such an argument based on the label affixed by the
statute has already been rejected by the Supreme Court.
In Browning-Ferris Industries v. Kelco Disposal, Inc., 109
S.Ct. 2909, 2913-14 (1989), the Supreme Court concluded
that the Eight Amendment provided no basis for disturbing a
punitive damage award in a civil jury trial. But the Court
took pains to base its decision not on the proposition that the
amendment applies only to criminal proceedings, but rather
on historical evidence that it applies only where the govern-
ment, rather than a private party, takes positive steps to pun-
ish an individual. Jd. at 2920. In this case the government
seeks forfeiture.
In Unites States v. Halper, 109 S.Ct. 1892 (1989), the
Court held that in a particular case a ‘‘civil penalty’? may be
**so extreme and so divorced’? from any compensatory of
remedial interest of the government as to constitute punish-
ment for the purpose of double jeopardy.
This was wholly consistent with the court’s easier holding,
that Congress may impose ‘‘both a criminal and a civil sanc-
tion in respect to the same act or omission.’’ Helvering v.
Mitchell, 303 U.S. 391, 399 (1938). The form of the proceed-
ing is not conclusive. If the civil penalty is sufficiently great
and sufficiently unrelated to any compensatory or remedial
interest of the government, it may be deemed a punishment
inflicted chiefly to deter or incapacitate. See South Livonia
Road, supra, 889 F.2d at 1270.
As noted above, the government may seek forfeiture of
real property associated with the commission of a federal
narcotics felony under both civil and criminal statutes, 21
U.S.C. § 881 (1984) and 21 U.S.C. § 853 (1984) respectively.
28a
Both provisions were enacted in the Comprehensive Crime
Control Act OF 1984 (the Act), P.L. 98-473, 98 Stat. 1873,
and both use identical language in describing real property
subject to forfeiture as that ‘‘which is used, or intended to be
used, in any manner or part, to commit, or to facilitate the
commission of’ a narcotics felony. 21 U.S.C. § 853(a)(2)
and § 881(a)(7).
The legislative history shows that Congress designed the
criminal provisions to serve as an alternative to civil forfeit-
ure in all drug felony cases. Senate Report at 193 and 3182,
3376. As the purpose of the legislation was to enhance the
utility of both types of forfeiture for law enforcement, the
report distinguishes criminal and civil actions only in their
respective procedural advantages and disadvantages, Senate
Report, at 192-96 and 3375-79. One aspect of the Act’s
reforms was the importation of certain advantages from each
proceeding into the other’s scheme. For example, the Act
brought real property within the scope of civil as well as
criminal forfeiture, and provided a means for preliminary sei-
zure of assets in criminal as well as in civil proceedings. See
id.
No distinction between the purposes of civil and criminal
forfeiture is apparent from the legislative history, which
describes both as weapons of deterrence.
Today, few in the Congress or the law enforcement
community fail to recognize that the traditional crimina!
sanctions of fine and imprisonment are inadequate to
deter or punish the enormously profitable trade in dan-
gerous drugs which, with its inevitable attendant vio-
lence, is plaguing the country. Clearly, if law
enforcement efforts to combat racketeering - and drug
trafficking are to be successful, they must include an
attack on the economic aspects of these crimes. Forfeit-
ure is the mechanism through which such an attack may
be made.
Senate Report at 191 and 3374.
29a
Both sections provide that the assets seized are to be
applied to defray expenses incurred by the government in
drug law enforcement. 21 U.S.C. § 881(e).
The similarity of function and purpose of § 881 and its
criminal counterpart, § 853, show that both sections share
punitive and remedial goals. The Senate Report describes for-
feiture as ‘‘an attack on the economic aspects’’ of drugs
crime, necessary ‘‘to deter or punish the enormously profit-
able trade in dangerous drug.’’ Jd.
Retribution and deterrence are not legitimate nonpunitive
governmental objectives. Bell v. Wolfish, 411 U.S. 520, 539
n. 20 (1979). On the other hand, the application of property
seized towards the government’s enforcement expenses, see 21
U.S.C. § 881(e), is a well-recognized remedial purpose. See,
One Lot Emerald Cut Stones v. United States, 409 U.S. 232,
238 (1972).
The presence of both punitive and remedial goal does not
of itself convert a civil statute into a criminal measure, or
vice versa. To some degree all civil forfeiture acts as a deter-
rent to owners of property, if only to encourage them to take
all reasonable care of their property is not put to an illegal
use. See Calero-Toledo v. Pearson Yacht Leasing Co., 416
U.S. 663, 690-91 (1974). Indeed, the application of ordinary
tort law usually has a deterrent effect.
The material inquiry is not whether civil forfeiture is puni-
tive in purpose and effect. It is usually is. The question is
whether the forfeiture serves some alternate purpose as well,
and whether the penalty inflicted is excessive in relation to
that alternative purpose. See Kennedy v. Mendoza-Martinez,
372 U.S. 144, 168-69 (1963).
The interest protected by the Eight Amendment prohibiting
‘*excessive’’ punishment is similar to that protected by the
due process clause of the Fifth Amendment. Due Process
‘‘protect(s) . . . the individual against arbitrary action(s) of
government,: Daniels v. Williams, 474 U.S. 327, 331 (1986)
(citation omitted), including imposition of civil penalties so
‘*grossly excessive’’ as to be oppressive. Waters-Pierce Oil
Co. v. Texas, 212 U.S. 86 (1909). The government may not
prescribe a penalty ‘‘wholly disproportioned to the offense
30a
and obviously unreasonable.’’ Saint Louis, I. M. & S Rail-
way Co., v. Williams, 251 U.S. 63,67 (1919). Even where a
penalty may serve both compensatory and punitive ends, the
government may “‘no more assess excessive damages than
_ . . impose excessive fines.”’ Standard Oil Co. v. Missouri,
224 U.S. 270, 286 (1911).
Where an owner has done all that can reasonably be
expected to prevent the prescribed use of the property, a civil
forfeiture ‘‘would simply be an arbitrary act, serving no legit-
imate government interest, oppressive and harsh, and in our
view contrary to the Fifth Amendment.”’ United States v.
One Tintoretio Painting, 691 F.2d 603, 608 (2d Cir. 1982),
citing Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S.
663, 689-90 (1974). Similarly, where an owner negligently or
wilfully permits property to be used in violation of the crimi-
nal law, due process requires that a civil penalty bear some
reasonable relation to the purpose of compensating the gov-
ernment for its efforts in attempting to discover the violation,
to prosecute the violators, and to avert or mitigate the conse-
quent harms.
In Halper, statutory penalties for 65 violations of the False
Claims Act, amounting to over $130,000, were sufficiently
unrelated to the government’s losses of $585 from Medicare
overcharges and approximately $16,000 in cost for investigat-
ing and prosecuting the offender as to constitute a criminal
penalty. 109 S.Ct. 1892 (1989). Double jeopardy prohibited
the government from imposing first a criminal punishment
and then a civil penalty for the same conduct where the civil
judgment is not ‘‘rationally related to the goal of making the
Government whole.’’ Jd. at 1903
The court must this consider whether forfeiture pursuant to
a civil statute and civil procedure is rationally related to a
remedial goal. Where a civil forfeiture ‘‘would be unreasona-
ble and not remotely related to both the actual losses and
inexplicable damages incurred by the government,”’ the court
should decline to enforce it. Paterson v. Richardson, 370
F.Supp. 1259, 1267 (N.D. Tex 1973) aff’d sub nom. Peterson
v. Weinberger, 508 F.2d 55 (Sth Cir.), cert. denied sub.
3la
nom. Peterson v. Matthews, 423 U.S. 830 (1975) (reducing
applicable penalty under the False Claims Act).
No clear line divides punitive from remedial purposes. See
generally Clark, Civil and Criminal Penalties and Forfeiture,
60 Minn. L. Rev. 379 (1976). Some decisions have describes
§ 881 as having the ‘‘remedial’’ purpose to diminish the eco-
nomic power of drug traffickers and deprive them of the and
instrumentalities useful in their trade. See United States v.
$2,500 in the United States Currency, 689 F.2d 10, 13-14 (2d
Cir. 1982); United States v. 6109 Grubb Road, 708 F. Supp.
698 (W.D. Pa 1989).
The distinction between incapacitation and deterrence is
particularly elusive. See Clark, supra, at 475-481. In the case
of contraband, where possession of the property is unlawful,
the government’s seizure removes it from circulation for the
public good, as in the seizure of controlled substances under
21 U.S.C. § 881(a)(1).
However, there is nothing inherently unlawful about pos-
sessing a condominium. A forfeiture in the present case may
incapacitate the owner who permits the illegal use, but hardly
rids society of a noxious instrumentality. Incapacitation could
aiso be accomplished by criminal measures, avowedly puni-
tive, such as imposing heavy fines, or constraining the per-
son’s liberty by imprisonment. See One 1958 Plymouth
Sedan, 380 U.S. 693, 699 (1965). It was just such a practice
of economically disabling those whom the Stuart considered
dangerous that led to the incorporation in the English Consti-
tution of the precursor to the excessive fines clause of the
Eight Amendment. Browning-Ferris Industries, 109 S.Ct. at
2916.
The aim of compensating the government for its efforts to
prevent or mitigate the harms caused by the property’s
unlawful use is a remedial goal. That harm consists not only
of the illicit profits form the actual sale, but the severe collat-
eral consequences of facilitating drug traffic, such as drug
addiction, increased drug-related violence, and the govern-
ment’s enforcement costs. All these are ills the drug laws
were designed to address. See § 101 of the Comprehensive
Drug Abuse and Control Act of 1970, codified at 21 U.S.C.
32a
§ 801(2) and H. Rep. No. 91-1444, 91st. Cong. 2d Sess.
(1970), reprinted in 1970 U.S. Code. Cong. & Admin. News
4573; S. Rep. No. 225, 98th Cong. Ist Sess. 191, reprinted in
1984 U.S. Code Cong. & Admin. News 3374; and United
States v. $2,500 in United States Currency, supra, at 13 n.2.
While the entire magnitude of the national drug problem
cannot be laid at the feet of any one drug offender, cf.
United States v. A Parcel of Land with a Building Located
thereon, 884 F. 2d 41, 44 (ist Cir. 1989), the government is
entitled to compensation because of the injury inflicted by
Levin’s conduct. The Supreme Court has recognized that
assessing damages is not an exact pursuit, and involves an
element of ‘‘rough justice.’’ Halper at 1902.
An imprecise formula, such as double damages, may pass
muster under constitutional scrutiny. See id. at 1900: Mis-
souri Pacific Railway Co. v. Humes, 115 U.S. 512, 522-23
(1885). However, forfeiture is a penalty without clear limits.
The value of the property is not inevitably related to the
harmfulness of the use to which it is put. See United States v.
Busher, 817 F.2d 1409, 1414 (9th cir. 1987) (forfeiture under
18 U.S.C. § 1963(a)) and South Livonia Road, 889 F.2d at
1270.
Here, Levin used his home more than once to conduct
transactions. Although perhaps trivial in their dollar amount,
these sales are quite serious in their collateral consequences.
The maintenance of the programs to deal with drug pro-
claims is expensive. Moreover, there were immediate costs to
the federal government in bringing this proceeding, and to
Suffolk County for its law enforcement efforts, which may
be compensated from the proceeds of any forfeiture. See 21
U.S.C. § 881(e)(1)(A) and 19 U.S.C. § 1616(a)(2).
Forfeiture of Levin’s approximately $70,000 interest in the
condominium does not seem a grossly excessive amount for
his share of the costs of remedying the ills occasioned by
drugs. Though there may be cases where further elaboration
of the government’s loss would be warranted, this is not a
forfeiture that stands near the line between remedy and pun-
ishment. See South Livonia Road, 889 F.2d at 1270.
33a
Forfeiture in this case is a civil penalty that offends neither
due process nor the Eight Amendment.
VI.
The court finds the government has established, and Levin
has failed to rebut, that his condominium is subject to for-
feiture under 21 U.S.C. § 881(a)(7). The forfeiture does not
offend the constitution. The government’s motion for sum-
mary judgment is granted, and claimant’s motion to dismiss
is denied.
Dated: Brooklyn, New York
September 18, 1990
Eugene H. Nickerson, U.S.D.J.
34a
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Docket No. 90-6268
>
At a stated Term of the United States Court of Appeals
for the Second Circuit, held at the United States Courthouse
in the City of New York, on the 3rd day of January, one
thousand nine hundred and ninety-two.
Present: HON. LAWRENCE W. PIERCE,
HON. RALPH K. WINTER,
HON. JOHN M. WALKER,
Circuit Judges.
—
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
—
CERTAIN REAL PROPERTY AND PREMISES KNOWN AS
38 WHALERS COVE DRIVE, BABYLON, NEW YORK,
Defendant,
EDWARD J. LEVIN,
Claimant-Appellant.
——
[AMENDED OPINION]
Appeal from the United States District Court for the East-
ern District of New York.
This cause came on to be heard on the transcript of record
from the United States District Court for the Eastern District
of New York and was argued by counsel.
ON CONSIDERATION WHEREOF, it is now hereby ordered,
adjudged and decreed that the judgement of said District
35a
Court be and it hereby is affirmed in accordance with the
opinion of this court with costs to be taxed against the appel-
lant.
ELAINE B. GOLDSMITH, Clerk
By: Edward J. Guardaro,
Deputy Clerk
36a
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Docket No. 90-6268
—
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the United States Courthouse, in
the City of New York, on the twenty-first day of January,
one thousand nine hundred and ninety-two.
>
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
—_—V.— !
CERTAIN REAL PROPERTY AND PREMISES KNOWN AS
38 WHALERS COVE DRIVE, BABYLON, NEW YORK,
Defendant,
EDWARD J. LEVIN,
Claimant-A ppellant.
a
A petition for rehearing containing a suggestion that the
action be reheard in banc having been filed herein by
Claimant-Appellant, Edward J. Levin.
Upon consideration by the panel that heard the appeal, it
is
Ordered that said petition for rehearing is DENIED.
It is further noted that the suggestion for rehearing in banc
has been transmitted to the judges of the court in regular
active service and to any other judge that heard the appeal
and that no such judge has requested that a vote be taken
thereon.
ELAINE B. GOLDSMITH
Clerk
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