maintains that the court cannot enter an order of forfeiture.
In response Mrs. Martenson's statutory arguments, the government points to 18 U.S.C. § 1963(m) as authority for ordering forfeiture of the house. Section 1963(m) provides that "if any of the property described in subsection (a), as a result of any act or omission of the defendant - (1) cannot be located upon the exercise of due diligence . . . the court shall order forfeiture of any other property of the defendant up to the value of [the unavailable property] ." As noted above, the government stated in its ex parte motion that it was unable to locate any other assets of Richard Martenson other than the Martenson residence and therefore the government moved for forfeiture of the house as a substitute asset, pursuant to section 1963(m).
However, Mrs. Martenson argues that section 1963(m) cannot be used in this case because the section was not enacted until after Mr. Martenson was sentenced. The government responds that the court can give retroactive effect to section 1963(m), because to do so would not violate the ex post facto clause of the Constitution. "Any statute . . . which makes more burdensome the punishment for a crime, after its commission . . . is prohibited as ex post facto." Dobbert v. Florida, 432 U.S. 282, 292, 53 L. Ed. 2d 344 , 97 S. Ct. 2290 (1977), quoting, Beazell v. Ohio, 269 U.S. 167, 169-170, 70 L. Ed. 216 , 46 S. Ct. 68 (1925). Yet, "a procedural change is not ex post facto." Id. at 293. In the case at bar, the government claims that the addition of section 1963(m) is a procedural change, since it does not add to the amount a defendant must forfeit but instead simply gives the government another means of collecting the amount adjudged forfeited. The court agrees with this analysis and holds that the retroactive application of section 1963(m) in this case does not violate the ex post facto clause of the Constitution. See United States v. Reed, 924 F.2d 1014, 1017 (11th Cir. 1991) (section 1963(m) does not change the quantum of punishment and therefore its retroactive application does not violate the ex post facto clause); Cf. Alexander v. Robinson, 756 F.2d 1153, 1156 (5th Cir. 1985) (court found that new procedure to collect for inadvertent over-issuance of food stamps could be applied retroactively because change was procedural in nature).
Mrs. Martenson next argues that the court cannot order forfeiture of the house because the Minnesota Homestead Statute, M.S.A. § 501.01 et seq., prohibits seizing a home "on account of any debt." In support of her contention that Minnesota law prohibits forfeiture of the house, Mrs. Martenson cites two cases in which federal courts failed to order forfeiture based on an analysis of the applicable state property law. See United States v. One Single Family Residence, 894 F.2d 1511 (11th Cir. 1990) and United States v. Marx, 844 F.2d 1303 (7th Cir. 1988). However, in both of the aforementioned cases, the claimants alleged that they were innocent owners of forfeited property and the courts looked to state property law only to determine the extent of the claimants' interest in the property. In contrast, in this case Mrs. Martenson is not claiming to be an innocent owner of the house. She claims that the Minnesota Homestead Act bars seizure of the house even though she has no ownership interest in it.
If the court were to accept Mrs. Martenson's argument, the court would be allowing Minnesota law to thwart the purposes of the RICO forfeiture provisions. However, the RICO statute provides that property subject to forfeiture shall be forfeited to the United States "irrespective of any provision of State law . . ." 18 U.S.C. § 1963(a). Moreover, in an analogous case, the Supreme Court held that under the Supremacy Clause of the U.S. Constitution the federal government could sell a delinquent taxpayer's home, despite that fact that Texas Constitution gave each spouse a separate possessory interest in the homestead. See United States v. Rodgers, 461 U.S. 677, 76 L. Ed. 2d 236 , 103 S. Ct. 2132 (1983). In her reply, Mrs. Martenson argues that the Rodgers case is inapplicable because it is distinguishable in many ways from the case at bar. For example, under the tax lien statute at issue in Rodgers, a court has discretion to refuse to order seizure if innocent third parties would be "unduly harmed" by the sale of property, whereas under the criminal RICO forfeiture statute, courts are not afforded such discretion. Furthermore, the proceeding in Rodgers was an in rem proceeding against the property and the proceeding in the case at bar is in personam against Mr. Martenson's interest in the home. While these distinctions are important, they do not undercut the basic premise of Rodgers that if innocent third parties are afforded due process and are given a chance to adjudicate their claims to property subject to forfeiture,
the federal government can order forfeiture of the property, despite state laws to the contrary.
Richard Martenson's Motion to Dismiss
As a preliminary matter the court notes that under 18 U.S.C. § 1963(L)(2), "any person, other than the defendant, asserting a legal interest in property which has been ordered forfeited . . . may . . . petition the court for a hearing to adjudicate the validity of his alleged interest in the property." 18 U.S.C. § 1963(L)(2) (emphasis added). Therefore, it seems that Richard Martenson does not have standing to challenge the seizure order. However, even if he did have standing, Mr. Martenson has not presented any arguments which would require dismissal of the seizure order. Mr. Martenson argues, as did his wife, that the court lacks jurisdiction to enter the seizure order and that the Minnesota Homestead Act precludes seizure. For the reasons stated above, the court rejects these arguments. Mr. Martenson also argues that the court cannot order seizure because the forfeiture verdict is "incorrect." However, the Seventh Circuit affirmed the forfeiture so Mr. Martenson cannot re-litigate the issue in the district court. Mr. Martenson next requests that the court stay the forfeiture pending the appeal of the court's denial of his section 2255 petition. Mr. Martenson presents no authority for such a stay and therefore the court will not grant the stay. Finally, Mr. Martenson requests that the court transfer this case to the federal district court in Minnesota under 28 U.S.C. § 1391(b). However, section 1391(b) only applies to civil cases. Moreover, 18 U.S.C. § 1963(j) provides this court with jurisdiction to enter orders pertaining to forfeitures, regardless of the location of the property subject to forfeiture. Therefore, Mr. Martenson's request for a transfer is denied.
For the aforementioned reasons, the court denies the motions to dismiss the forfeiture proceedings brought by Debra Martenson, Richard Martenson and Minvesco Corporation.