United States Court of Appeals

FOR THE EIGHTH CIRCUIT

____________

No. 96-2603

____________

United States of America, *

*

Appellee, *

*

v. *

*

Premises Known as 6040 *

Wentworth Avenue South, *

Minneapolis, Hennepin County, *

Minnesota, with all *Appeal from the United States

appurtenances thereto and all * District Court for the

proceeds from its sale or * District of Minnesota

transfer, *

*

Defendant. *

*

David John Hanson; Rose Mary *

Hanson, *

*

Appellants. *

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Submitted: February 14, 1997

 Filed: August 25,

1997

____________

Before McMILLLIAN, JOHN R. GIBSON and FAGG, Circuit Judges.

____________
21 U.S.C. § 881(a)(7) provides, in pertinent part: 1

The following shall be subject to forfeiture to the United States and

no property right shall exist in them:

. . . .

(7) All real property . . . which is used, or intended to be

used, in any manner or part, to commit, or to facilitate the

commission of, a [drug-related crime] punishable by more

than one year’s imprisonment . . . .

The Honorable James M. Rosenbaum, United States District Judge for the

2

District of Minnesota.

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and 3

unusual punishment inflicted.” U.S. Const. amend. VIII.

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McMILLIAN, Circuit Judge.

This appeal involves a civil forfeiture proceeding, brought pursuant

to 21 U.S.C. § 881(a)(7), against certain real property which was

1

purportedly involved in the manufacture of marijuana in violation of 21

U.S.C. § 841(a)(1). The owners of the defendant property, David Hanson and

Rose Hanson (together “the claimants”), appeal from a final order entered

in the United States District Court for the District of Minnesota granting 2

summary judgment in favor of the United States (the government) in the

forfeiture proceeding. United States v. Premises Known as 6040 Wentworth

Avenue South, No. 4-93-CV-536 (D. Minn. May 2, 1996) (adopting the report

and recommendation of the magistrate judge). For reversal, the claimants

argue that the district court erred in holding that the forfeiture of the

defendant property did not constitute an excessive fine under the Eighth

Amendment’s excessive fines clause. For the reasons discussed below, we 3

affirm the order of the district court. 
"Cuttings” are small segments of a growing plant which have been cut from the 4

plant and replanted in a relatively small amount of soil. The cuttings seized by the

police were between three and eight inches in height.

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I. Background

The facts of this case are undisputed. On May 9, 1993, a private

citizen observed David Hanson cultivating a marijuana crop on private

property located in Blakely Township, Minnesota, which was being watched

by the private citizen on behalf of the absent owner. When confronted,

David Hanson offered the private citizen a portion of the crop if he would

not contact the police. The private citizen refused the offer and

subsequently notified the police. The police arrived and, following an

investigation, arrested David Hanson for being in possession of marijuana

cuttings and plants which were found inside of plastic bags recently

delivered to the cultivation site. The police seized a total of thirty

marijuana plants at the cultivation site. Following David Hanson’s arrest,

a warrant was obtained to search his personal residence located at 6040

Wentworth Avenue South, Minneapolis, Minnesota. The warrant was executed

that day, and the police seized: approximately 265 growing marijuana

plants, 200 of which were “cuttings” ; 138 bags of marijuana weighing a

4

total of 6.6 pounds; discarded bags of dried marijuana leaves and stems;

a cache of drug paraphernalia, including drug packaging materials, grow

lights, scales, and fertilizer; and a key payment notice for a safety

deposit box in the claimants’ names. The police also seized hand-rolled

marijuana cigarettes from Rose Hanson’s purse. The police subsequently

executed a search, pursuant to a search warrant, of the safety deposit box

and found nearly $40,000.

 

David Hanson was indicted on October 6, 1993, on three counts: (I)

knowingly and intentionally manufacturing approximately thirty marijuana

plants at the property located in Blakely Township, Minnesota, in violation

of 21 U.S.C. § 841(a)(1); (II) knowingly and intentionally manufacturing

approximately 265 marijuana plants at 
The Honorable Raymond L. Erickson, United States Magistrate Judge for the 5

District of Minnesota.

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his residence at 6040 Wentworth Avenue South, in violation of 21 U.S.C.

§ 841(a)(1); and (III) knowingly and intentionally possessing with intent

to distribute approximately 6.6 pounds of marijuana in violation of 21

U.S.C. § 841(a)(1). He pleaded guilty to Count I, and the government

dismissed Counts II and III. Pursuant to the plea agreement, the

government reserved the right to refer to Counts II and III as relevant

conduct for sentencing purposes and David Hanson reserved the right to

argue that such conduct referenced in Counts II and III was not relevant.

After considering such conduct as relevant conduct, the district court

sentenced David Hanson on Count I on May 13, 1994, to forty-six months of

imprisonment, followed by three years of supervised release. The district

court did not impose a fine because of David Hanson’s inability to pay.

On June 1, 1993, several months before David Hanson was indicted,

this civil forfeiture proceeding was commenced against the defendant

property known as 6040 Wentworth Avenue South. On August 11, 1994, the

claimants filed with the district court a stipulation to concede probable

cause for the seizure of the defendant property, pursuant to 21 U.S.C.

§ 881(a)(7). However, the claimants did contest: whether the search

warrant executed at the defendant property on May 9, 1993, was supported

by probable cause; whether the forfeiture of the defendant property would

violate the double jeopardy clause of the Fifth Amendment; and whether the

forfeiture of the defendant property would violate the excessive fines

clause of the Eighth Amendment. The parties filed cross-motions for

summary judgment on those issues. 

The case was referred to a magistrate judge, who recommended that

5

the claimants’ summary judgment motion be denied and that summary judgment

be granted in favor of the government. United States v. Premises Known as

6040 Wentworth Avenue South, No. CIV. 4-93-536, 1996 WL 260745, at *7 (D.

Minn. Feb. 1, 1996) 
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(report and recommendation) (6040 Wentworth). The magistrate judge held

as a matter of law that: David Hanson is collaterally estopped from

challenging the adequacy of probable cause because the issue was

adjudicated during his prior criminal proceedings and Rose Hanson’s

challenge should be rejected because there was a substantial basis for a

finding of probable cause to search the residence, id. at *3-4; the

claimants’ double jeopardy rights have not been infringed, id. at *5; and

the forfeiture of the defendant property does not violate the excessive

fines clause, id. at *7. The district court adopted the magistrate judge’s

report and recommendation. United States v. Premises Known as 6040

Wentworth Avenue South, No. 4-93-CV-536 (D. Minn. May 2, 1996). The

claimants appealed.

II. Discussion

We review a grant of summary judgment de novo and will affirm only

if the record, viewed in the light most favorable to the claimants, shows

that there is no genuine issue of material fact and that the government is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see, e.g.,

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Thomas v. Gunter,

103 F.3d 700, 702 (8th Cir. 1997). Where the unresolved issues are

primarily legal rather than factual, summary judgment is particularly

appropriate. Crain v. Board of Police Comm’rs, 920 F.2d 1402, 1405-06 (8th

Cir. 1990). We review the district court’s determination of the excessive

fines issue “based upon the analysis and record finally developed by the

district court.” United States v. One 1970 36.9' Columbia Sailing Boat,

91 F.3d 1053, 1057 (8th Cir. 1996) (reviewing grant of summary judgment).

In light of United States v. Ursery, 116 S. Ct. 2135 (1996), which

was decided approximately one month after the claimants filed their notice

of appeal and held that civil forfeitures do not violate the double

jeopardy clause of the Fifth Amendment, the claimants abandoned their

double jeopardy argument. Instead, the claimants argue that the civil

forfeiture of their home violates the excessive fines clause of the Eighth
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Amendment. Specifically, they argue that the magistrate judge erred in

relying upon United States v. Bieri, 68 F.3d 232, 236 (8th Cir. 1995),

cert. denied, 116 S. Ct. 1876 (1996), in holding that the claimants failed

to satisfy their preliminary burden of making a prima facie showing of

“gross disproportionality,” see 6040 Wentworth, 1996 WL 260745, at *7,

because a showing of gross disproportionality is required only in cases

involving criminal forfeitures. The claimants maintain that they were not

required to show that the civil forfeiture of their residence is grossly

disproportionate to the crime for which David Hanson was convicted. They

further argue that the forfeiture is excessive because Rose Hanson was

neither indicted nor convicted of any offense and was therefore an innocent

occupant. The claimants rely upon United States v. Real Property Located

at 6625 Zumirez Drive, 845 F. Supp. 725, 732 (C.D. Cal. 1994) (Zumirez),

in which the court applied “a multifactor test that focuses on an

evaluation of the relationship of the property to the alleged offense,

rather than an analysis of the property’s actual monetary value.” The

Zumirez court weighed three factors to determine whether a civil forfeiture

violated the excessive fines clause: (1) the inherent gravity of the

offense compared with the harshness of the penalty; (2) whether the

property was an integral part of the commission of the crime; and (3)

whether the criminal activity involving the defendant property was

extensive in terms of time or spatial use or both. Id. The claimants

argue that, in weighing these factors, the forfeiture is excessive in the

present case because the defendant property is the home of the claimants

and Rose Hanson is an innocent occupant.

 

We reject the claimants’ argument that civil forfeiture cases and

criminal forfeiture cases require different analyses under the excessive

fines clause. See, e.g., United States v. One 1970 36.9' Columbia Sailing

Boat, 91 F.3d at 1057 (relying upon Bieri for excessiveness analysis in

civil forfeiture case under § 881(a)(4), which court analogized to

§ 881(a)(7)); cf. United States v. Ursery, 116 S. Ct. 2135, 2147 (1996)

(distinguishing between civil and criminal forfeitures for purposes of the

Fifth Amendment’s double jeopardy clause). The Supreme Court has declined

to establish a multifactor test for determining whether a forfeiture is

constitutionally excessive, 
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leaving that determination to the lower courts to consider in the first

instance. Austin v. United States, 509 U.S. 602, 622-23 (1993). This

circuit has developed a two-pronged approach for analyzing the

excessiveness question. 

Preliminarily, “the defendant has the initial burden of

making a prima facie showing of ‘gross

disproportionality.’ Second, “‘the [E]ighth [A]mendment

demands that a constitutionally cognizable

disproportionality reach such a level of excessiveness

that in justice the punishment is more criminal than the

crime.’”

To determine whether the facts indicate gross

disproportionality, the district court must consider

multiple factors, including the extent and duration of

the criminal conduct, the gravity of the offense weighed

against the severity of the criminal sanction, and the

value of the property forfeited. “Other helpful

inquiries might include an assessment of the personal

benefit reaped by the defendant, the defendant’s motive

and culpability and, of course, the extent that the

defendant’s interest and the enterprise itself are

tainted by criminal conduct.” This multifactor approach

does not provide an exhaustive list of factors, but it

provides a helpful framework for analysis which will

necessarily vary from case to case.

Bieri, 68 F.3d at 236 (citations omitted). While there are few cases

interpreting the excessive fines clause, it is clear that this court

“require[s] proof of ‘gross disproportionality,’ an excessiveness so great

that ‘the punishment is more criminal than the crime.’” United States v.

Hines, 88 F.3d 661, 664 (8th Cir. 1996) (relying upon forfeiture cases in

analyzing fine imposed at sentencing under excessive fines clause)

(citations omitted). In United States v. One 1970 36.9' Columbia Sailing

Boat, this court held that, considering the specific facts of that case,

including the extent of the criminal wrongdoing, the value of the property

forfeited, and the amount of time the property owner engaged in illegal

activity, the claimant failed to make a prima facie 
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showing of gross disproportionality and, therefore, the civil forfeiture

was not excessive. 91 F.3d at 1057-58. In United States v. One Parcel of

Real Property, Located at 9638 Chicago Heights, 27 F.3d 327, 331 (8th Cir.

1994), while declining to determine whether the civil forfeiture involved

was excessive because the seizure of the defendant property violated the

claimant’s Fifth Amendment due process rights, this court disapproved of

the district court’s excessiveness analysis because it failed to “consider

the monetary value of the property, the extent of the criminal activity

associated with the property, the fact that the property was a residence,

the effect of the forfeiture on innocent occupants of the residence,

including children, or any other factors that an excessive fine analysis

might require.” Most recently, this court summarized the two-part analysis

set forth in Bieri, holding that gross disproportionality is determined by

comparing “the extent and duration of [a claimant’s] criminal activities

with the amount of property forfeited” and that only after a claimant has

made a prima facie showing of gross disproportionality will the

government’s evidence of “just proportionality” be considered. United

States v. Alexander, 108 F.3d 853, 855 (8th Cir. 1997). 

We hold that the magistrate judge did not err in requiring the

claimants to show gross disproportionality or in holding, as a matter of

law, that the forfeiture is not excessive. Based upon the record before

us, it is reasonable to infer that the claimants used their home in

furtherance of a substantial enterprise for cultivating, storing, and

distributing marijuana. See 6040 Wentworth, 1996 WL 260745, at *7. The

claimants’ replanting of approximately 200 marijuana cuttings indicates the

extent of the growing operation and the prolonged duration of the illegal

activity. Furthermore, given the quantities of marijuana found at the

defendant property, the applicable statutory fine 
We note that the government’s failure to present evidence of the value of the

6

drugs seized is irrelevant in this case because the claimants failed to make a preliminary

showing of gross disproportionality. We caution, however, that the value of the drugs

can be a critical factor in considering the government’s evidence of just proportionality.

See United States v. Bieri, 68 F.3d 232, 238 (8th Cir. 1995), cert. denied, 116 S. Ct.

1876(1996)(comparing, among other things, value of forfeited property with total dollar

volume of criminal activity in determining whether forfeiture was constitutionally

excessive).

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would be $250,000 and the range of fines under the sentencing guidelines

would be from $10,000 to $100,000. Moreover, the applicable guidelines

range for David Hanson’s conviction for manufacturing thirty marijuana

plants is from $10,000 to $100,000. The value of the defendant property

is approximately $60,000, which falls well within the applicable range.6

See, e.g., Bieri, 68 F.3d at 238 (comparing, among other things, value of

forfeited property with authorized statutory fine); United States v. 1181

Waldorf Drive, 900 F. Supp. 1167, 1173-74 (E.D. Mo. 1995) (comparing, among

other things, value of forfeited property with range of fines under

sentencing guidelines). While “we are mindful that the [d]efendant

premises served as the [c]laimants’ personal residence, . . . we are not

faced with innocent occupants here, for all that transpired within that

dwelling was undeniably accepted and condoned by both [c]laimants -- the

concession of probable cause admits as much.” 6040 Wentworth, 1996 WL

260745, at *7; see Bieri, 68 F.3d at 237 (parents’ culpability outweighed

intangible value of property and adverse effect of forfeiture on innocent

children).

 

Furthermore, the factors which we have considered encompass those

enumerated in Zumirez. In United States v. Real Property Located in El

Dorado County at 6380 Little Canyon Road, 59 F.3d 974, 982 (9th Cir. 1995),

the Ninth 
A substantial connection between the property and the offense was established 7

by the claimants’ stipulation of probable cause to seize the defendant property.

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Circuit explained its excessiveness analysis as two-pronged: (1) the

property must have been an “instrumentality” of the crime (i.e. a “nexus”

must exist between the property and the offense) and (2) the worth of the

property must be “proportional” (i.e. not excessive) to the culpability of

the owner. The court further explained that, under the analysis, the

government bears the burden of showing a substantial connection between the

property and the offense (i.e. the first prong) and the claimant bears the

burden of showing “that forfeiture of his property would be grossly

disproportionate given the nature and extent of his criminal activity.”

Id. at 985 (citing Zumirez for the proposition that the claimant must show

gross disproportionality). Thus, even if we were to accept the claimants’

argument that Zumirez sets forth the appropriate analysis, we would still

hold that the magistrate judge did not err in requiring that the claimants

make a showing of gross disproportionality. 

7

III. Conclusion

The claimants failed to make a prima facie showing of gross

disproportionality, and, therefore, the forfeiture in this case did not

violate the Eighth Amendment’s excessive fines clause. Accordingly, we

affirm the order of the district court granting summary judgment in favor

of the government.
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A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.