FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT AUGUST 8, 2000 THOMAS K. KAHN CLERK [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

_______________ No. 99-11830

_______________ D.C. Docket No. CV-96-HM-0216-J UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus LAND, WINSTON COUNTY, Certain Real Property Located near Highway 195, Winston County, Alabama, together with all improvements, fixtures and appurtenances thereon, Defendant, HOWELL M. UPTAIN, Executor of the Estate of Melphia B. Woods, Claimant-Appellant.

_______________ Appeal from the United States District Court for the Northern District of Alabama

_______________

(August 8, 2000)* Honorable Harlington Wood, Jr ., U.S. Circuit Judge for th e Seventh Circuit, sitting by designation.

1 Title 18 § 1955 provides in its pertinent parts: (a) Whoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business shall be fined not more than $20,000 or imprisoned not more than five years, or both. (b) As used in this section– (1) “illegal gambling business” means a gambling business which– (i) is a violation of the law of a State or political subdivision in which it is conducted; (ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and (iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day. (2) “gambling” includes but is not limited to pool-selling, bookmaking, maintaining slot machines, roulette wheels or dice tables, and conducting lotteries, policy, bolita or numbers games, or selling chances therein. **** (d) Any property, including money, used in viola tion of the provisions of this section may be seized and forfeited to the United States.

2 See A LA

. C ODE §§ 13A-12-20(1), (4), (7), (8), (9); 13A-12-22(a); and the catchall provision 13A-12-20(12), stating that any gambling not specifically authorized by law is unlawful. 2 Before EDMONDSON, HULL and WOOD * , Circuit Judges. HARLINGTON WOOD, Jr., Circuit Judge: This case began in 1993 when the United States filed the first of two civil actions seeking the in remforfeiture of the named defendant real estate for its alleged use in violation of 18 U.S.C. § 1955 prohibiting illegal gambling. 1 Alabama law broadly defines gambling but also prohibits any gambling not specifically authorized by Alabama law. 2 Cockfighting, the particular gambling in this case, is not3 See A LA

. C ODE § 13A-12-4 (2000): Any person who keeps a cockpit or who in any public place fights cocks shall, on conviction, be fined not less than $20.00 nor more than $50.00.

4 See : http//www.geocities.com/Wellesley/Atrium/2224/CockfightingQA.html. 3 specifically authorized by Alabama law. 3 Cockfighting may be defined as pitting two cocks, usually equipped with sharp blades on their legs, in a fight against each other. See R ANDOM H OUSE W EBSTER ’ S C OLLEGE D ICTIONARY 261 (1992). It is most often associated with gambling. Forty-seven states have banned cockfighting, but it remains legal in Oklahoma, Louisiana, and parts of New Mexico. 4 This is the second appeal to this court involving the forfeiture of the building and property known as the Clear Creek Sportsman’s Club. In 1993, the first action filed by the United States was opposed by Melphia Bailey Woods (“claimant” or “Mrs. Woods”), the only claimant to challenge the forfeiture. In light of United States v. 2751 Peyton Woods Trail , 66 F.3d 1164 (11th Cir. 1995), the case was dismissed on procedural grounds without prejudice with leave to refile a similar action within the statute of limitations. See United States v. Certain Real Property Located Near Highway 195, Winston County, Ala. , CV-93-HM-0945-J (N.D. Ala. 1993). The second civil forfeiture action was f iled in January 1996. Again claimant filed in protest denying any knowledge of the property’s use for illegal gambling and4 again alleging the property ha d been illegally seized by th e government. The district

court granted summary judgment in favor of the Un ited States and claimant appealed. This court, in United States v. Land, Winston County , 163 F.3d 1295, 1303 (11th Cir. 1998), affirmed the district court’s holding that the government established probable cause for the forfeiture action. Id. at 1303. However, the panel reversed the lower court in determining that the government’s action in seizing the property violated the Due Process Clause, and remanded for furthe r proceedings on two issues: whether any damages in the form of rents received or other proceeds were realized from the property during the period of illegal seizur e and whether the forfeiture violated the Excessive Fines Clause of the Eighth Amendment. Id. at 1302-03. On remand, after an evidentiary heari ng, the district court concluded the government had not received any rents or other proceeds during the period of the illegal seizure, and, therefore, claimant had not been deprived of anything and was entitled only to nominal damages of One Dollar ($1.00) and costs. It also found the forfeiture did not constitute an excessive fi ne. Claimant now appeals these findings. Claimant alleges the property, whic h the government sold in 1997 for $60,000, was worth over $100,000. According to claimant, the lease value of the property was5 Claimant’s brief states the lease value was $8,400 per year. However, the record indicates the figure as $7,800 per year.

6 According to claimant’s brief, Mrs. Woods’s husband died on June 27, 1984.

7 The parties either overlooked or misunderstood th e court’s request as no additional briefs were filed until brought to the attention of both counsel in June 2000. 5 $8,400 per year. 5 The property had been purchas ed by Mrs. Woods and her husband 6 in 1981. They promptly erected a meta l building designed for cockfighting at an alleged cost of $100,000. It contained one main cockfighti ng pit and three other pits, referred to as “drag” pits , complete with stadium s eating. There was also an announcer’s booth, a food conce ssion stand, a souvenir st and, and holding pens for the cocks. On this second appeal, in addition to re viewing the two issues remanded to the district court, a new complication arose before oral argument in March 2000. The court was advised by counsel that Mrs. Woods had recently died. Oral argument proceeded conditionally, but counsel were as ked to submit supplemental briefs as to the impact of her death on this appeal. 7 We will therefore consider that issue first. Claimant’s estate asserts this action is abated since forfeiture laws are penal in nature and abate upon the death of the alle ged wrongdoer. No United States Court of Appeals has as yet considered this precise i ssue as it relates to a violation of gambling laws.6 The survivability of a cause of acti on depends on whether the recovery is remedial, an action which compensates an individual for specific harm suffered, or penal, an action which im poses damages upon the defenda nt for a general wrong to the public. United States v. NEC Corp. , 11 F.3d 136 (11th Cir. 1993) (as amended) (citing Schreiber v. Sharpless , 110 U.S. 76, 80 (1884)). The attorney for claimant’s estate cites Schreiber to support the fact that punitive or penal actions abate with the death of the alleged wrongdoer. He also cites Kilgo v. Bowman Transportation, Inc. , 789 F.2d 859, 876 (11th Cir. 1986), to illustrate that penal ac tions do not survive death of the plaintiff. The court in Kilgo held that a plaintiff’s civil rights action under Title VII survived her death as the action wa s remedial rather than penal. Id. at 876. The court stated that the primary purpose of Title VII was not to punish the defendantemployer, but to eliminate discrimina tory practices in the future. Id. Kilgo is of little help to claimant’s argument. The general rule acknowle dged in Schreiber and Kilgo , that punitive or penal actions abate with th e death of the wrongdoer, is not disputed. Only its application to this case is disputed. In behalf of abatement, the attorney fo r claimant’s estate in his supplementary brief argues that the survivability of this action is a question of federal common law, relying on NEC . That case was a qui tamaction brought under the False Claims Act (“FCA”), 31 U.S.C. § 3729 et seq . NEC , 11 F.3d at 137. The government argued that7 the claim of the qui tamplaintiff-relator, who died pe nding appeal, did not survive his death. While the court noted it was clear the FCA is remedial with respect to the government’s recovery against a defendant -wrongdoer, that the statute redresses individual wrongs, rather than wrongs to the general public, and “is intended to compensate the government for damages suffered as a result of the defendant’s action,” id. at 137-38 (citation omitted), the questi on at issue was whether the FCA is remedial or penal with respect to the recovery of the qui tamrelator. Id. at 137. The court held that a qui tamrelator may also suffer harm, not just the government; therefore, the FCA’s qui tam provisions are remedial, not penal, and would survive the death of the plaintiff-relator. Id. at 138. In addition, the court noted that the qui

tam provisions of the FCA “provide incentive to government ‘whistleblowers’”, encouraging individuals with knowledge of government-related fraud to come forward, helping to relieve the government of expensive investigations and litigation. Id. at 139. The cited case is more helpful to the government than to the claimant’s

estate. The estate of the claimant directs us to two district c ourt cases which have determined that 18 U.S.C. § 1955(d), the ga mbling forfeiture statute, is penal in nature. See United States v. $47,409.00 in U.S. Currency , 810 F.Supp. 919 (N.D. Ohio 1993); United States v. Life Ins. Co. of Virginia , 647 F.Supp. 732 (W.D.N.C8 1986). In the first case, the government alleged that the cu rrency was subject to forfeiture under § 1955(d) as the money wa s used in an illegal gambling business. $47,409.00 in U.S. Currency , 810 F.Supp. at 919. The court held that it was selfevident that the civil forfeiture of gambli ng proceeds is a penalty as it is an integral part of the criminal statute. Id. at 923. The court’s interpretation was that “the forfeiture provisions . . . are clearly inte nded to redress the p ublic harm caused by organized crime rather than to redre ss individual wrongs inflicted upon organized crime’s ‘willing’ gambling victims.” Id. at 924. “There is no indication that the Government here seeks, inte nds or engages in the absurd function of returning the gambling profits to the luckle ss wagerers involved.” Id. However, the losses of the bettors are of no concern to the government. It is the government which is looking out for its own losses caused by the illegal conduct. In the second case, the district court could find no case which had already determined the nature of the gambling forfeiture statute. See Life Ins. Co. of Virginia , 647 F.Supp. at 741. The court then found it was a punitive and quasi-criminal statute. Id. We find those cases not to be pers uasive. That the forfeiture provision is contained in the gambling prohibition statute of §1955 is not determinative. The penalty provided for i llegal gambling in that section is a fine or imprisonment, but forfeiture provided for in a separate subsection serves a remedial purpose.9 We find the answer in United States v. Ursery , 518 U.S. 267 (1996). The Supreme Court stated that while forfeiture statutes may have “certain punitive aspects, [they] serve important nonpunitive goals.” Id. at 290 (listing cases) (noting that civil forfeiture of property discourages landowne rs from using or allowing property to be used for illegal purposes or may abate a nuisance). The Court reaffirmed its conclusion that “forfeiture . . . serves a deterrent purpose distinct from any punitive purpose.” Id. at 292 (quoting Bennis v. Michigan, 516 U.S. 442, 452 (1996)). The Court determined, “Civil forfeitures, in contrast to civil penalties, are designed to do more than simply co mpensate the Government.” Ursery , 518 U.S. at 284. Forfeitures “are designe d primarily to confiscate property used in violation of the law, and to require disgorgement of the fruits of the illegal conduct.” Id. The Court noted it may be possible to place a value on the property forfeited, but “it is virtually impossible to quantify, even approximately, the nonpunitive purposes served by a particular civil forfeiture.” Id. Therefore, the amount of harm suffered by the government compared to the amount of the pena lty is found to be inapplicable to civil forfeitures. Id. We find the gambling forfeiture st atute is remedial, not punitive, and does not abate upon the death of the property owner. In the most recent case of United States v. One Parcel of Real Estate at 10380 S.W. 28th Street, Miami, Florida , 214 F.3d 1291 (11 thCir. 2000), this circuit10 considered forfeiture of a home for drug vi olations. The husband had been convicted of the drug offense, not the wife. The wife of the offender unsuccessfully sought relief from the forfeiture and appealed. Sh e died during the appeal and the husband took up the appeal in her behalf contesting the denial of a Fed. R. Civ. P. 60(b) motion. One Parcel of Real Estate , 214 F.3d at 1292-93. This court held the forfeiture order did not abate upon the wife’s death and that the forfeiture did not violate the Eighth Amendment Excessive Fines Clause. Id. at 1295. Relying on Urseryin drug forfeiture circumstances, as we do in the gambling context, the court affirmed the forfeiture. Id. One difference between the present case, however, and the One Parcel of Real Estate drug case is that the drug offense was a federal offense with no dependence on state law. In the present case, the gamb ling offenses are determined by state law. That distinction makes no difference in the out come of this case, as the offenses are illegal under both federal and state law. See , e.g. , Kilgo , 789 F.2d at 876 (finding that decedent’s § 1983 claim for damages survives death whether based on state law or federal law). As to the merits of the underlying case, the estate first argues that the taking was an “excessive fine.” We have already addressed that issue. A civil forfeiture is not a fine, whether excessive or not. See Ursery , 518 U.S. at 284. The forfeiture is11 part of the remedy in contrast to the im position of incarceration or a fine imposed on the wrongdoer. See id. at 287. Finally, the estate argues that it is entitle d to damages for the time after the first forfeiture which was found to be illegal. This court’s mandate was to determine if claimant was deprived of any damages in th e form of rents received or other proceeds realized by the government during that period. See Land, Winston County , 163 F.3d at 1302. The district court’s findings of f act are reversed only if found to be clearly erroneous. United States v. United States Gypsum Co. , 333 U.S. 364, 395 (1948); Fed. R. Civ. P. 52(a). The district cour t’s conclusions of law are reviewed de novo

. United States v. One Single Family Residence , 894 F.2d 1511, 1513 (11 thCir. 1990). The district court found no rents or othe r proceeds were realized by the government during the period of the illegal seizure. The record supports these findings. The premises were designed only for cockfighting and the property was not readily adaptable for any other use. The governme nt, of course, did not reopen the illegal gambling enterprise (even though it appears fro m the record that for many years it was profitable for the Woods). Therefore, onl y nominal damages were due to Mrs. Woods for the violation of the due process clause. See Carey v. Piphus , 435 U.S. 247, 266-67 (1978) (approving award of nominal damage s of one dollar where procedural due process violation caused no actual injury). In addition, the sale of the property came12 only after the government had lawfully forf eited the property. Those sale proceeds were not profits earned during the time of the illegal forfeiture. The government earned nothing from the property and owes nothing other than the nominal damages allowed by the district court. AFFIRMED.