United States v. One
U.S. Court of Appeals for the First Circuit
United States v. One
Opinion
USCA1 Opinion
September 10, 1992 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1410
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
ONE PARCEL OF REAL PROPERTY WITH
BUILDINGS, APPURTENANCES AND IMPROVEMENTS
KNOWN AS 121 WEST SHORE DRIVE, LOCATED IN
THE TOWN OF EXETER, RHODE ISLAND,
Defendant, Appellee,
__________
PETER L. CHAMBERLAIN, JR.,
Plaintiff, Appellant.
____________________
No. 92-1453
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
ONE PARCEL OF REAL PROPERTY WITH BUILDINGS,
APPURTENANCES AND IMPROVEMENTS KNOWN AS
121 WEST SHORE DRIVE, LOCATED IN THE TOWN
OF EXETER, RHODE ISLAND,
Defendant, Appellee,
__________
PETER L. CHAMBERLAIN, JR.,
Plaintiff, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
__________________________
____________________
Before
Selya, Cyr and Boudin,
Circuit Judges.
______________
____________________
Peter L. Chamberlain, Jr. on brief pro se.
_________________________
Lincoln C. Almond, United States Attorney, and Michael P.
___________________ ___________
Iannotti, Assistant United States Attorney, on brief for appellee,
________
United States of America.
____________________
____________________
Per Curiam. Claimant appeals from a judgment
___________
forfeiting his property (home and surrounding land) under 21
U.S.C. 881(a)(7) (authorizing the forfeiture of real
property "used, or intended to be used" to facilitate a
controlled substance offense punishable by more than one
year's imprisonment). We address claimant's main arguments.
1. Claimant contends there was insufficient
evidence of a "substantial connection" between his property
and any unlawful drug activity. See United States v. Parcel
___ _____________ ______
of Land & Residence at 28 Emery Street, 914 F.2d 1, 3-4 (1st
______________________________________
Cir. 1990) ("We have consistently required that there be a
'substantial connection' between the property forfeited and
the drug activity."). In particular, he argues that no
marihuana plants were actually located on claimant's property
and that the district court's finding of substantial
connection was impermissibly premised solely on the
speculation that the bale of marihuana claimant had paid
$54,000 for immediately prior to his arrest would be
processed for distribution at claimant's home.
We disagree. The agreed statement of facts (on
which the case was presented to the district court) may be
ambiguous as to the precise location of the 30 marihuana
plants located "behind the Chamberlain house" and "in an area
to the rear of the defendant real property." But the agreed
statement is clear that Chamberlain told a DEA agent that he
-3-
had 100 marihuana plants hidden "on his property" and the
inference that marihuana was located on the property is
further supported by defendant's guilty plea described in the
agreed statement as a plea inter alia to "possession with
___________
intent to distribute the marihuana found at the defendant
real property . . . . "
Second, additional evidence connected the premises
to unlawful drug uses or intended uses. Claimant, who told
undercover agents he had been selling narcotics for twenty
years, conducted some of the negotiations for purchasing a
marihuana bale by phone from the defendant premises, and
cocaine (103.75 grams) as well as drug trafficking tools (a
triple beam scale, Inositol, a how to grow marihuana book,
and firearms) were found on the property. Claimant pled
guilty to possessing with intent to distribute the cocaine
found on the premises. In sum, the evidence showed actual
use of the premises to cultivate marihuana and to store drugs
for later intended distribution. This was sufficient to
establish the requisite substantial connection.
Finally, here, where claimant was admittedly in the
narcotics business and had manifestly used his home in
furtherance of his business, it was reasonable for the
district court to conclude that the marihuana bale claimant
had paid $54,000 for immediately before he was arrested --
like the cocaine found on the premises -- would have been
-4-
stored at claimant's home had claimant's arrest not
intervened. Hence, unlike the cases upon which claimant
relies, both significant actual use as well as intended
future use were adequately established to support forfeiture.
2. Relying on United States v. Certain Real
_____________ _____________
Property and Premises Known as 38 Whalers Cove Drive, 954
_______________________________________________________
F.2d 29 (2d Cir. 1992), petition for cert. filed, 60 U.S.L.W.
________________________
3755 (U.S. April 20, 1992) (No. 91-1682), claimant argues
that the forfeiture of his home was disproportionately harsh
for his offense and constitutes cruel and unusual punishment.
Claimant did not present this argument below, and normally
arguments may not be raised for the first time on appeal.
Were we to consider the argument, however, we would find no
merit in it, for we have recently rejected the Second Circuit
position that forfeitures are subject to proportionality
analysis and have instead adhered to our position that
"proportionality analysis is inappropriate in civil
forfeiture cases under section 881(a)(7)." United States v.
_____________
One Parcel of Real Property, 960 F.2d 200, 207 (1st Cir.
_____________________________
1992). Moreover, were we to accept the Second Circuit
approach, there is nothing in the present record which would
convince us that the forfeiture was unconstitutionally
disproportionate. United States v. A Parcel of Land, 884
_____________ __________________
F.2d 41 (1st Cir. 1989) (rejecting claim that civil
forfeiture of home and 17.9 acres of land from which 80 live
-5-
and 50 dried marihuana plants had been seized was
unconstitutionally harsh).
As for any double jeopardy claim (also not raised
below), we would reject it -- had it been properly preserved
-- for the first and third reasons explained in United States
_____________
v. A Parcel of Land, 884 F.2d at 43-44.
________________
Affirmed summarily pursuant to 1st Cir. R. 27.1.
__________________________________________________
The motion for oral argument is denied.
______________________________________
-6-
Reference
- Status
- Published