# 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. *

____________ 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 r eal property . . . which is used, or intended to b e used, in any manner or part, to commit, or to facilitate th e commission of, a [drug-related crime] punishable by mor e than one year’s imprisonment . . . .
The Honorable James M. Rosenbaum, United States District Judge for th e 2 

## District of Minnesota. "Excessive bail shall not be required, nor excessive fines impo sed, nor cruel and 3 

## unusual punishment inflicted.” U.S. Const. amend. VIII.
-2- McMILLIAN, Circuit Judge.

This appeal involves a civil forfeiture proceeding, brought pursuan t to 21 U.S .C. § 881(a)(7), against certain real property which wa s 1 pur portedly involved in the manufacture of marijuana in violation of 2 1 U.S.C. § 841(a)(1). The owners of the defendant property, David Hanson an d Rose Hanson (together “the claimants”), appeal from a final order entered in the United States District Court for the District of Minnes ota granting 2
summa ry judgment in favor of the United States (the government) in th e forfeiture proceeding

. United States v. Premises Known as 6040 Wentworth Avenue South , No. 4-9 3-CV-536 (D. Minn. May 2, 1996) (adopting the report and recommendation of the magistrate judge). For reversal, the claimants argue that the distri ct 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 grow ing plant which have been cut from the 4 

## plant and replanted in a relatively small amount of soil. The cuttings seized by th e police were between three and eight inches in height.
-3- I. Background

The fac ts of this case are undisputed. On May 9, 1993, a privat e citize n observed David Hanson cultivating a marijuana crop on privat e property located in Blakely Township, Minnesota, which was being watched by the pr ivate citizen on behalf of the absent owner. When confronted , David Hanson offered the private citizen a porti on of the crop if he would not contact the police. The private citizen refused the offer an d sub sequently notified the police. The police arrived and, following a n investigation, arrest ed David Hanson for being in possession of marijuana cutt ings and plants which were found inside of plastic bags recentl y delivered to the cultivation site. The police seized a total of thirt y marijuana plants at the cultivation site. Following David Hanson’s arrest , a warrant was obtained to search his personal residence located at 604 0 Wentworth Avenue Sout h, Minneapolis, Minnesota. The warrant was executed that da y, and the police seized: approximately 265 growing marijuan a 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 cach e of drug paraphernalia, including drug packaging materials, gro w lights, sc ales, and fertilizer; and a key payment notice for a safet y deposit box in the claimants’ names. The police also seized hand-rolled mariju ana cigarettes from Rose Hanson’s purse. The police subsequentl y 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 marijuan a plants at the property located in Blakely Township, Minnesota, in violatio n 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.
-4- 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 2 1 U.S .C. § 841(a)(1). He pleaded guilty to Count I, and the governmen t dismisse d Counts II and III. Pursuant to the plea agreement, th e governmen t reserved the right to refer to Counts II and III as relevan t conduct for sentencing purposes and David Hanson reserved the right t o argue that such condu ct referenced in Counts II and III was not relevant. After considering such conduct as relevant conduct, the district cour t sentenced David Hanso n on Count I on May 13, 1994, to forty-six months of imprisonment, followed by three years of supervi sed 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 , th is civil forfeiture proceeding was commenced against the defendan t property known as 6040 Wentworth Avenue South. On August 11, 1994, th e 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 searc h warrant executed at the defendant property on May 9, 1993, was supported by probable cause; wh ether the forfeiture of the defendant property would violate the double jeopardy clause of the Fifth Amendment; and whether the forfei ture of the defendant property would violate the excessive fine s clau se of the Eighth Amendment. The parties filed cross-motions fo r summary judgment on those issues. The cas e was referred to a magistrate judge, who recommended tha t 5 the claimants’ summary judgment motion be denied and that summary judgment be granted in favor of the government. United S tates v. Premises Known as 6040 Wentworth Avenue South , No. CIV. 4-93-536, 1996 WL 260745, at *7 (D. Minn. Feb. 1, 1996)

## -5-

(report and recommendation) ( 6040 Wentworth ). The magistrate judge held
as a m atter of law that: David Hanson is collaterally estopped fro m challe nging the adequacy of probable cause because the issue wa s adjud icated during his prior criminal proceedings and Rose Hanson’ s challenge should be rejected because there was a substantial basis for a finding o f probable cause to search the residence, id. at *3-4; th e claimants’ double jeo pardy rights have not been infringed, id. at *5; and the forfeiture of the defendant property does not violate the excessiv e fines clause, id. at *7. The district court adopted the magistrate judge’ s report and recommendation. United States v. Premises Known as 604 0 Went worth Avenue South , No. 4-93-CV-536 (D. Minn. May 2, 1996). Th e 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 ar e primari ly legal rather than factual, summary judgment is particularl y appropriate. Crain v. Board of Police Comm’rs , 920 F.2d 1402, 1405-06 (8t h 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 (8 th 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 cl aimants filed their notice of appeal and held that civil forfeitures do not violate the doubl e jeopar dy clause of the Fifth Amendment, the claimants abandoned thei r double jeopardy argument. Instead, the claimants argue that the civi l forfeiture of their home violates the excessive fines clause of the Eighth

## -6-

Ame ndment. Specifically, they argue that the magistrate judge erred i n 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 sa tisfy their preliminary burden of making a prima facie showing o f “gross disproportionality,” see 6040 Wentworth , 1996 WL 260745, at *7 , bec ause a showing of gross disproportionality is required only in case s involving criminal forfeitures. The claimants m aintain that they were not required to show that the civil forfeiture of their residence is grossly disproportionate to t he crime for which David Hanson was convicted. They further argue that the forfeiture is excessive because Rose Hanson wa s neither indicted nor convicted of any offense and was therefore an innocen t occupant. The claima nts 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 a n evaluation of the relationship of the property to the alleged offense , rathe r than an analysis of the property’s actual monetary value.” Th e Zumirez court weighed three factors to determine whether a civil forfeitur e violated t he excessive fines clause: (1) the inherent gravity of th e offense compared with the harshness of the penalty; (2) whether th e pro perty was an integral part of the commission of the crime; and (3 ) whether the criminal activity involving the defendant property wa s exte nsive in terms of time or spatial use or both. Id. The claimant s argue that, in weighi ng 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 rej ect the claimants’ argument that civil forfeiture cases an d criminal forfeiture cases require different analyses under the excessive fines clause. See, e.g. , United States v. One 1 970 36.9' Columbia Sailing Boat , 91 F.3d at 1057 (relying upon Bieri for excessiveness analysis i n civil forfeiture case under § 881(a)(4), which court analogized t o § 881(a)( 7)); cf. United States v. Ursery , 116 S. Ct. 2135, 2147 (1996 ) (distinguishing between civil and criminal forfe itures 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 i s constitutionally excessive,

## -7-

leaving that determination to the lower courts to consider in the firs t instance. Austin v. United States , 509 U.S. 602, 622-23 (1993). Thi s circ uit has developed a two-pronged approach for analyzing th e excessiveness question.
Prelimi narily, “the defendant has the initial burden of making a prima facie showing of ‘gros s disproportionality.’ Second, “‘th e [E]ighth [A]mendment dem ands that a constitutionally cognizabl e disproportionality reach such a level of excessivenes s that in justice the punishment is more criminal than the crime.’”

To de termine whether the facts indicate gros s dis proportionality, the district court must conside r multi ple factors, including the extent and duration o f the criminal conduct, the gravity of the offense weighed aga inst the severity of the criminal sanction, and th e value of the property forfeited. “Other helpfu l inqu iries might include an assessment of the persona l benefit reaped by the defendant, the defendant’s motive and culpability and, of course, the extent that th e defendant’s interest and the enterprise itself ar e tainted by criminal conduct.” Thi s multifactor approach does not provide an exhaustive list of factors, but i t pro vides a helpful framework for analysis which wil l necessarily vary from case to case.

Bie ri , 68 F.3d at 236 (citations omitted). While there are few case s inte rpreting the excessive fines clause, it is clear that this cour t “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, 6 64 (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 illega l activity, the claimant failed to make a prima facie

## -8-

showing of gross disproportionality and, therefore, the civil forfeiture was not excessive. 91 F.3d at 1057-58. In Unit ed States v. One Parcel of Real Property, Located at 9638 Chicago Heights , 27 F.3d 327, 331 (8th Cir. 1994), while declinin g 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 beca use it failed to “consider the monetary value of the property, the extent of the criminal activit y associated with the p roperty, 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 analysi s set forth in Bieri , holding that gross dispropor tionality is determined by comparing “the extent and duration of [a claimant’s] criminal activities with the amount of pr operty forfeited” and that only after a claimant has made a prima facie showing of gross disproportionality will th e gove rnment’s evidence of “just proportionality” be considered. Unite d States v. Alexander , 108 F.3d 853, 855 (8th Cir. 1997).

We h old that the magistrate judge did not err in requiring th e 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 i n further ance of a substantial enterprise for cultivating, storing, an d distributing marijuana. See 6040 Wentworth , 1996 WL 260745, at *7. The claimants’ replanting of approximately 200 marijuana cuttings indicates th e extent of the growing operation and the prolonged duration of the illegal activity. Furthermore, given the quantities of marijuana found at th e defendant property, the applicable statutory fine

## We note that the government’s failure to present evidence of the value of th e 6 

## drugs seized is irrelevant in this case because the claimants failed to m ake a preliminary showing of gross disproportiona lity. We caution, however, that the value of the drugs can be a critical factor in considering the government’s evidence o f 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 propertywith total dollar
vo lume of criminal activity in determining whether forfeiture was constitutionall y excessive).
-9- would be $250,000 and the range of fines under the sentencing guidelines

wou ld be from $10,000 to $100,000. Moreover, the applicable guideline s rang e for David Hanson’s conviction for manufacturing thirty marijuan a plants is from $10,000 to $100,000. The value of the defendant property is appro ximately $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 wi th authorized statutory fine); United States v. 1181 Waldorf Drive , 900 F. Supp. 1167, 1173-74 (E.D. Mo. 1995) (comparing, amon g other things, value of forfeited property with range of fines unde r senten cing guidelines). While “we are mindful that the [d]efendan t premises served as the [c]laimants’ personal residence, . . . we are not fac ed with innocent occupants here, for all that transpired within tha t dwelling was undeniably accepted and condoned by both [c]laimants -- the

conce ssion of probable cause admits as much.” 6040 Wentworth , 1996 W L 260745, at *7; see Bi eri , 68 F.3d at 237 (parents’ culpability outweighed intangible value of p roperty and adverse effect of forfeiture on innocent children).

Furthermore, the factors which we have considered encompass thos e enumerate d in Zumirez . In United States v. Real Property Located in E l Dorado County at 6380 Little Canyon Road , 59 F.3d 974, 982 (9th Cir. 1995) , the Ninth

## A substantial connection bet ween the property and the offense was established 7 

## by the claimants’ stipulation of probable cause to seize the defendant property.
-10- Circui t explained its excessiveness analysis as two-pronged: (1) th e property must have be en an “instrumentality” of the crime (i.e. a “nexus” must exist between th e property and the offense) and (2) the worth of the property must be “proportional” (i.e. not excess ive) to the culpability of the owner. The court further explained that, under the analysis, th e government bears the burden of showing a substantial connection between th e property and the offense (i.e. the first prong) and the claimant bears the burden of showing “that forfeiture of his property would be grossl y dispro portionate given the nature and extent of his criminal activity. ” Id. at 985 (citing Zumirez for the proposition t hat the claimant must show gross disproportionality). Thus, even if we wer e to accept the claimants’ argument that Zumirez sets forth the appropriate analysis, we would still hold that the magistrate judge did not err in re quiring that the claimants make a showing of gross disproportionality. 7

III. Conclusion

The c laimants failed to make a prima facie showing of gros s dispro portionality, and, therefore, the forfeiture in this case did no t violat e the Eighth Amendment’s excessive fines clause. Accordingly, w e affirm the order of t he district court granting summary judgment in favor of the government.

## -11- A true copy.

Attest:

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