UNITED STATES COURT OF APPEALS

Tenth Circuit

Byron White United States Courthouse

1823 Stout Street

Denver, Colorado 80294

(303) 844-3157

Patrick J. Fisher, Jr. Elisabeth A. Shumaker

Clerk Chief Deputy Clerk

November 14, 1996

TO: All recipients of the captioned opinion

RE: 96-2026 U.S. v. 829 Calle de Madero

 November 12, 1996

Please be advised of the following correction to the captioned decision:

Due to technical difficulties, the name of the authoring judge was deleted from the

hard copies of the opinion. The electronic copies are correct. The authoring judge is

Judge Kelly. 

Enclosed please find a revised copy of the caption page reflecting the correction. 

Very truly yours,

Patrick Fisher, Clerk

Susan Tidwell

Deputy Clerk

encl.
PUBLISH

UNITED STATES COURT OF APPEALS

Filed 11/12/96

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

vs.

829 CALLE DE MADERO,

CHAPARRAL, OTERO COUNTY, NEW

MEXICO, Real Estate Located at,

Defendant.

VICTOR VILLALOBOS, VIRGINIA

VILLALOBOS,

Claimants - Appellants.

No. 96-2026

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. No. CIV 93-232 M)

Stephen Stevers, Las Cruces, New Mexico, for Claimants - Appellants Victor Villalobos

and Virginia Villalobos.

David N. Williams, Assistant United States Attorney (John J. Kelly, United States

Attorney, and Stephen R. Kotz, Assistant United States Attorney, with him on the brief),

Albuquerque, New Mexico, for Plaintiff - Appellee.

Before ANDERSON, KELLY and LUCERO, Circuit Judges.
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KELLY, Circuit Judge.

Claimants Victor Villalobos and Virginia Villalobos appeal the district court’s

order of forfeiture of residential real estate located at 829 Calle de Madero, Chaparral,

New Mexico. They argue that this forfeiture violates the Excessive Fines Clause of the

Eighth Amendment to the United States Constitution. We conclude that this forfeiture is

not excessive and therefore affirm the district court’s grant of summary judgment in favor

of the United States.

Background

On June 23, 1996, Victor and Virginia Villalobos met two undercover officers for

the El Paso County Sheriff’s Office at a restaurant in El Paso, Texas, and negotiated the

purchase of three kilograms of cocaine for $45,000. Mr. and Mrs. Villalobos requested

that the exchange take place at their residence because they had $39,000 there. They

were to provide the remaining $6,000 in five days. Later that day, the undercover officers

arrived at the residence and went inside. Mr. Villalobos brought a brown paper bag

containing approximately $39,000 in cash to the officers. The officers gave a prearranged signal, and the Villaloboses were arrested. They consented to a search of the

property, which revealed the afore referenced cash in the brown paper bag, $5,000 in cash

concealed behind the dresser drawers in the master bedroom, $16,900 in cash hidden

between the paneling and insulation of a jacuzzi in the master bedroom, a programmable
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scanner operating in the kitchen, and a list of frequencies with two Drug Enforcement

Agency frequencies marked.

Both Mr. and Mrs. Villalobos were convicted in the Twelfth Judicial District Court

for the State of New Mexico on drug-related charges. Mr. Villalobos was sentenced to

six years imprisonment for attempt to traffic in cocaine and for conspiracy to traffic in

cocaine. Mrs. Villalobos received five years of probation for conspiracy to traffic in

cocaine. In addition, approximately $56,000 and the scanner were forfeited to the State.

The United States initiated a civil forfeiture action under 21 U.S.C. § 881 (a)(6)

and (a)(7), seeking forfeiture of the residence. The residence was the Villalobos family

home, where Mr. and Mrs. Villalobos lived with their four children. The district court

granted the Claimants’ motion to strike the § 881(a)(6) claim, finding insufficient

evidence that the Claimants’ property was the proceeds of illegal activity. Summary

judgment was granted in favor of the United States under § 881(a)(7). Claimants appeal

the district court’s grant of summary judgment.

Discussion

The Claimants argue that forfeiture of their home violates the Excessive Fines

Clause of the Eighth Amendment to the United States Constitution. We review questions

of constitutional law and dispositions on summary judgment de novo. Wilson v. Meeks,

1996 WL 605215, at *5 (10th Cir. Oct. 23, 1996); United States v. Angulo-Lopez, 7 F.3d
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1506, 1508 (10th Cir. 1993), cert. denied, 114 S. Ct. 1563 (1994).

The Excessive Fines Clause of the Eighth Amendment received scant attention

until 1989, when the Supreme Court held that the Clause did not limit the amount of

punitive damages which may be awarded in a civil suit to which the government is not a

party. Browning-Ferris Indus. v. Kelco Disposal, 492 U.S. 257, 264 (1989). BrowningFerris was soon followed by the Supreme Court’s most prominent decision on the Clause

to date. In Austin v. United States, 509 U.S. 602, 611-18 (1993), the Court examined the

history of forfeitures in England and in the early days of this country and determined that

forfeitures constitute payment to a sovereign as punishment for an offense. In addition,

the Court noted Congress’s intent to punish drug traffickers by enacting the civil

forfeiture statute. Id. at 619-22. The Court also relied upon the civil forfeiture statute’s

inclusion of an innocent owner defense—a defense not raised in this appeal and, on these

facts, certainly not applicable—in support of its conclusion that such forfeitures constitute

punishment. Id. at 619. The Court consequently held that the Excessive Fines Clause

applies to civil forfeitures under 21 U.S.C. §§ 881(a)(4) and (a)(7). Id. at 622.

We believe that Austin retreats from, at least for excessive fines consideration, the

legal fiction that it is solely the guilt of the property—as opposed to the conduct of the

owner or claimant—that is being punished. As Justice Blackmun noted, “If forfeiture had

been understood not to punish the owner, there would have been no reason to reserve the

case of a truly innocent owner. Indeed, it is only on the assumption that forfeiture serves
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in part to punish that the Court’s past reservation of that question makes sense.” Id. at

617. The Court was equally clear that, from earliest times, the word “fine” was

understood to include “forfeiture.” Id. at 614 n.7.

With this background—that “fine” encompasses “forfeiture” and that the purpose

of a forfeiture is to punish the claimant—our focus, once the government has established

that the property was “used, or intended to be used . . . to commit, or to facilitate the

commission of, a violation of [Chapter 13, Subchapter I, of Title 21 of the United States

Code],” 21 U.S.C. § 881(a)(7), shifts to the traditional tests employed to determine

whether a violation of the Eighth Amendment Excessive Fines Clause has occurred.

Despite its holding that civil forfeitures impose punishment for purposes of the

Excessive Fines Clause, the Austin majority refrained from establishing a methodology

for determining when a forfeiture is excessive, leaving that task to the lower courts. 509

U.S. at 622-23. The majority’s only guidance came in apparent rejection of the test

proposed by Justice Scalia in his Austin concurrence. Justice Scalia’s reasoning, at odds

with the majority’s rejection of the “guilty-property” fiction, counseled that the

excessiveness inquiry in civil forfeitures differs from the inquiry in cases involving

monetary fines, which compares the value of the fine in relation to the offense. Id. at 627

(Scalia, J., concurring). Instead, Justice Scalia concluded that “[t]he relevant inquiry for

an excessive forfeiture under § 881 is the relationship of the property to the offense: Was

it close enough to render the property, under traditional standards, ‘guilty’ and hence
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forfeitable?” Id. at 628 (Scalia, J., concurring). 

The majority in Austin, while rejecting Justice Scalia’s approach, did acknowledge

that the relationship between the property and the offense may be a relevant factor in the

excessiveness inquiry, but stated that the lower courts were “in no way limit[ed] . . . from

considering other factors . . . .” Id. at 623 n.15. Indeed, all of the circuits which have

addressed this question since Austin have concluded that factors other than the

relationship between the property and the offense are relevant. E.g., United States v.

Chandler, 36 F.3d 358, 365 (4th Cir. 1994) (adopting a three-part instrumentality test

which “considers (1) the nexus between the offense and the property and the extent of the

property’s role in the offense, (2) the role and culpability of the owner, and (3) the

possibility of separating offending property that can readily be separated from the

remainder”), cert. denied, 115 S. Ct. 1792 (1995).

The majority of the circuits which have addressed the question perform an analysis

that purports to balance the severity of the fine, i.e., the forfeiture, with the seriousness of

the underlying offense and the culpability of the owner. United States v. Real Property

Located in El Dorado County at 6380 Little Canyon Road, El Dorado, Cal., 59 F.3d 974,

985-86 (9th Cir. 1995); United States v. Milbrand, 58 F.3d 841, 847-48 (2d Cir. 1995),

cert. denied, 116 S. Ct. 1284 (1996); see also United States v. Bieri, 68 F.3d 232, 236 (8th

Cir. 1995), cert. denied, 116 S. Ct. 1876 (1996); United States v. Premises Known as

Rural Route No. 1 Box 224, 14 F.3d 864, 876 (3d Cir. 1994) (leaving the question open,
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but suggesting that both the nexus between the property and the offense and the

relationship between the value of the forfeited property and the severity of the offense are

relevant). Although there are differences between the tests articulated by the circuits

which have adopted this approach, the tests roughly follow the same analytical process. 

First, the instrumentality or nexus test examines the connection between the forfeited

property and the offense. This first prong of the test is required both by the statute as well

as under Justice Scalia’s approach, and the burden is on the government to prove that the

connection exists. Second, the proportionality test compares the severity of the offense,

the harshness of the sanction, and the culpability of the claimant. The burden of showing

excessiveness is on the claimant.

The district court in this case applied the instrumentality test adopted by the Fourth

Circuit in Chandler and concluded that the forfeiture was not excessive. In this appeal,

the Claimants argue that the district court erred both in applying the instrumentality test

and by failing to consider proportionality. They urge us to adopt a test which considers

the nexus between the forfeited property and the offense and also compares the harshness

of the sanction to the severity of the offense. The United States commends the

instrumentality test adopted by the district court and the Fourth Circuit.

The Excessive Fines Clause of the Eighth Amendment mandates that a

proportionality analysis be conducted in forfeiture proceedings, considering the severity

of the offense, the harshness of the sanction imposed, and the culpability of the claimant. 
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A test which relies solely on the nexus between the forfeited property and the offense

does not consider other factors which are relevant when considering whether a forfeiture

is excessive. The Eleventh Circuit has persuasively explained why the Excessive Fines

Clause requires an assessment of proportionality. United States v. One Parcel Property

Located at 427 & 429 Hall Street, 74 F.3d 1165, 1170-72 (11th Cir. 1996). Relying

primarily upon the Supreme Court’s conclusion in Austin that civil forfeiture is

punishment, and Congress’s intent to punish individuals involved in drug trafficking, the

Eleventh Circuit concluded that when the Excessive Fines Clause, “which constrains the

power of the sovereign to punish, comes in to play, it necessarily protects the person

punished, i.e., the owner.” Id. at 1171 (footnote omitted); accord Real Property Located

in El Dorado, 59 F.3d at 983 (“[T]he instrumentality test rests on a sharp distinction

between in personam (criminal) and in rem (civil) forfeitures, the importance of which

was reduced by the Court’s decision in Austin . . . [which] made punishment the focus of

attention.”) (citation omitted). The Eleventh Circuit also relied upon the history and plain

meaning of the Excessive Fines Clause in concluding that the appropriate inquiry under

that Clause is a test of proportionality. One Parcel Property, 74 F.3d at 1170.

We agree that proportionality is relevant in evaluating excessiveness, however, the

connection between the property and the offense remains relevant. The first step in the

inquiry is the instrumentality test, in which the government must show the existence of a

connection between the forfeited property and the offense. The connection between the
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property and the offense must be more than a fortuitous or incidental one. If the

instrumentality test is satisfied, the forfeiture will not be considered excessive unless the

defendant—usually the claimant—then shows that the forfeiture is grossly

disproportionate in light of the totality of the circumstances. That is, “[t]he language of

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.” United States v. Sarbello, 985 F.2d 716, 724 (3d Cir. 1993).

In evaluating proportionality, courts must compare the severity of the offense with

which the property was involved, the harshness of the sanction imposed, and the

culpability of the claimant. Relevant factors in assessing the harshness of the sanction

include the value of the property forfeited, its function, and any other sanctions imposed

upon the claimants by the sovereign seeking forfeiture. Against these factors, the severity

of the offense must be evaluated, taking into account the extent of both the claimant’s and

the property’s role in the offense, the nature and scope of the illegal operation at issue, the

personal benefit reaped by the claimant, the value of any contraband involved in the

offense, and the maximum sanction Congress has authorized for the offense. These

factors are not necessarily exclusive; we agree with the Sixth Circuit that these cases are

“factually intensive,” and we decline to prescribe a one-size-fits-all test or a weighting for

the factors. United States v. Certain Real Property Located at 11869 Westshore Drive, 70

F.3d 923, 930 (6th Cir. 1995), cert. denied, 117 S. Ct. 57 (1996).
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Using this methodology, we conclude that the forfeiture of the Claimants’ home

does not violate the Excessive Fines Clause. The instrumentality test is more than

satisfied on the undisputed facts before the district court. After agreeing upon a price for

the cocaine, the Claimants requested that the exchange of drugs and money occur at their

residence. They then used the residence for this purpose. 

Based on the undisputed facts before the district court, the forfeiture of the

Claimants’ residence is not disproportionate in the constitutional sense under any of the

criteria we have considered. According to an affidavit submitted by Virginia Villalobos,

the home had a fair market value of $80,000 to $100,000; the Claimants’ brief asserts that

the home has been valued at $133,000. The Claimants contend that the home has value

far in excess of its monetary value because it is the place where they have lived and raised

their family. They also contend that the loss of the home will cause serious financial

hardship. In evaluating the harshness of the sanction, we recognize that this forfeiture

will displace the Claimants’ three minor children from their family home, but we must

also consider the Claimants’ deliberate and knowing use of the home in the criminal

activity which gave rise to the forfeiture. See Bieri, 68 F.3d at 237. 

Against these sanctions levied upon the Claimants, we consider the serious nature

of the offense with which the forfeited property was involved. Both the Claimants and

their residence were involved in activities which violate the Controlled Substances Act. 

The Claimants requested that the exchange of drugs and money occur at their home,
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where they secreted large sums of cash and operated a scanner monitoring Drug

Enforcement Agency activities. The presence of the scanner and the storage of

cash—typical tools of the drug trade, see United States v. Hardwell, 80 F.3d 1471, 1490

(10th Cir.), rev’d on other grounds on rehearing in part, 88 F.3d 897 (10th Cir.

1996)—suggests continuous use of the property in criminal activities, not just an isolated

incident.

The Claimants’ home was connected to an illegal purchase of three kilograms of

cocaine, which violates the Controlled Substances Act. See 21 U.S.C. §§ 841(a)(1), 846. 

Congress has authorized stiff penalties for such violations; first-time offenders may be

imprisoned for up to forty years and fined up to $2,000,000. Id. § 841(b)(1)(B).

The severity of these possible sanctions—as well as the $45,000 price placed on

the contraband involved and the ongoing nature of the illegal activity suggested by the

presence of the concealed cash and the scanner on the property—leave no doubt that the

Claimants and their residence were connected to a very serious offense. When viewed

against the seriousness of this offense, forfeiture of the Claimants’ residence is not

disproportionate and does not violate the Excessive Fines Clause.

The Claimants suggest that we take into account that Claimant Victor Villalobos

was sentenced on state charges to six years imprisonment and that Claimant Virginia

Villalobos, on state charges, received five years probation. Claimants also forfeited

approximately $56,000 and the scanner to the State. In evaluating excessiveness,
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however, we do not mix state-imposed sanctions with federal sanctions. The Constitution

does not bar the federal government from proscribing activities or conduct which a state

has also prohibited. Abbate v. United States, 359 U.S. 187, 194 (1959); Bartkus v.

Illinois, 359 U.S. 121, 132-33 (1959).

AFFIRMED.