UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America,

Government

v. Case No. 06-cv-421-SM

Opinion No. 2012 DNH 151

Land and Buildings Located at

43 Mill Road, Kingston, NH,

With all Appurtenances and

Improvements Thereon,

Owned by Margaret Pandelena;

Land and Buildings Located at

10 Towle Road, Kingston, NH,

With all Appurtenances and

Improvements Thereon,

Owned by Theodore Gagalis;

Defendants in rem.

O R D E R

Petitioner, Theodore Gagalis, has stipulated that real

estate he owns — the defendant in rem in this civil forfeiture

case — was used to commit and to facilitate the commission of

drug offenses, for which he was convicted in state court, and so

is subject to forfeiture pursuant to 21 U.S.C. § 881(a)(7). 

Gagalis’s equitable interest in the property is valued at

approximately $111,000. Seeking to avoid forfeiture of his

property (or the value of his equity), however, Gagalis moves the

court to determine that, under the particular facts of his case,

forfeiture would constitute an excessive fine in violation of the

Eighth Amendment. The government objects.

Case 1:06-cv-00421-SM Document 73 Filed 08/31/12 Page 1 of 4
In this circuit, the critical issue in such circumstances is

“whether the fine [i.e., the forfeiture] is ‘grossly

disproportional to the gravity of a defendant’s offense.’” 

United States v. Ortiz-Cintron, 461 F.3d 78, 81 (1st Cir. 2006)

(quoting United States v. Bajakajian, 524 U.S. 321, 334 (1998)). 

And, as in Ortiz-Cintron, “[j]udged by the criteria used in the

case law, this is not even arguably an excessive fine.” Id.

(citations omitted). Gagalis was convicted of state drug

felonies — possession of heroin with the intent to dispense and

possession of the controlled drug oxycodone. He was sentenced to

a year of imprisonment in the county jail and three and one-half

(31⁄2) to seven (7) years of imprisonment in the state prison

(suspended for two years upon continued good behavior).

Congress considers illegal drug possession and possession

with the intent to distribute those drugs to be very serious

offenses, as reflected in the punishment prescribed by statute. 

That punishment includes imposition of a fine of up to one

million dollars — far more than the value of the forfeitable

property used by petitioner in the commission of his drug

offenses. See 21 U.S.C. § 841(b)(1)(C) and United States

Sentencing Guidelines 5E1.2(c)(4); United States v. Heldeman, 402

F.3d 220, 223 (1st Cir. 2005).

2

Case 1:06-cv-00421-SM Document 73 Filed 08/31/12 Page 2 of 4
Several factors are considered when determining whether a

forfeiture is excessive: 1) whether the defendant is in the class

of persons at which the criminal statute is principally directed;

2) the penalties prescribed by Congress for the offense(s); and

3) the nature of the harm caused by the offense(s). Heldeman,

402 F.3d at 223. It is clear that petitioner falls within the

class of persons at whom pertinent criminal statutes are directed

(illegal drug possession, and possession with intent to

distribute). His illegal drug activity was knowing, intentional,

and based in his home, the property at issue. The imposable

fines for such conduct, as authorized by Congress (and the

Sentencing Guidelines), far exceed the value of the forfeitable

property. And, the harm inflicted upon society by those who

violate controlled substances laws is serious. See id. 

Accordingly, considering the relevant factors, the proposed

forfeiture is not grossly disproportionate to the gravity of

petitioner’s offenses, and plainly does not run afoul of the

Eighth Amendment.

While forfeitures can be harsh, the issue before the court

is unrelated to fashioning an appropriate criminal sentence. 

Rather, the issue is whether a statutorily-authorized civil

forfeiture, albeit in the nature of punishment, is beyond

Congress’s power to impose, because it would violate the

3

Case 1:06-cv-00421-SM Document 73 Filed 08/31/12 Page 3 of 4
Excessive Fines Clause of the Eighth Amendment. Under clear and

controlling precedent, petitioner’s claim that it would is not

plausible.

Conclusion

The motion to determine that forfeiture of the defendant in

rem would violate the Excessive Fines Clause of the Eighth

Amendment (document no. 68) is denied.

SO ORDERED.

____________________________

Steven J. McAuliffe

United States District Judge

August 31, 2012

cc: Robert J. Rabuck, AUSA

Alexander R. Cain, Esq.

Rodkey Craighead, Jr., Esq.

Brian C. Dauphin, Esq.

Murat Erkan, Esq.

Scott W. LaPointe, Esq.

Robert A. Shaines, Esq.

4

Case 1:06-cv-00421-SM Document 73 Filed 08/31/12 Page 4 of 4