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September 23, 1991

30 IRONWOOD COURT, et al., Defendants, and ALAN J. SCHROEDER, et al., Claimants

The opinion of the court was delivered by: SHADUR



 Both the United States and claimant Alan Schroeder ("Schroeder") have filed summary judgment motions under Fed. R. Civ. P. ("Rule") 56 in this civil forfeiture action under 21 U.S.C. ยง 881(a)(7), *fn1" which targets both Schroeder's residence at 30 Ironwood Court, Frankfort, Illinois and his law office at 111 Ash Street in the same city. *fn2" For the reasons stated in this memorandum opinion and order, the United States' motion is granted in its entirety. *fn3"


 This action is based on the United States' claim that both Schroeder's house and his law office were real property "used . . . in any manner or part . . . to facilitate the commission of" federal felony drug offenses (the quoted language is drawn from Section 881(a)(7)). It has remained on the back burner for an extended period of time awaiting the resolution of Schroeder's state court prosecution on narcotics charges. *fn4"

 Finally on August 13, 1991 Schroeder pleaded guilty in the Circuit Court of Will County to two counts of delivering cocaine to a 16-year-old boy (who was a client of Schroeder's in Juvenile Court proceedings), once at Schroeder's home and once at his law office. In the course of that guilty plea, *fn5" Schroeder admitted (Tr. 25, 27, 30, 31, 32) that on the first occasion he himself smoked some cocaine before giving .5 grams to the young man to take away with him from Schroeder's home (Tr. 20-22), while on the second occasion (in Schroeder's law office) both of them ingested cocaine and then Schroeder gave the boy another .1 gram (Tr. 22-23). On that second occasion police officers then executed a previously-obtained search warrant and retrieved both the residue of cocaine and the instruments used to ingest the substance. Later a search of Schroeder's home uncovered no additional drugs (except for cocaine residue in a glass vial), but the police did find drug paraphernalia (a pipe, a mirror, a razor blade and a screen) consistent with the personal consumption of drugs and not with drug trafficking as such.

 As n.2 indicates, there is one factual dispute between the United States and Schroeder. Schroeder says that the cocaine at his residence -- both that used by him and the quantity delivered to the boy -- had been brought to the house in a shoe that Schroeder was wearing. According to the United States (based on the boy's statement), however, Schroeder retrieved the cocaine from the inside of a shoe that was already in the home's kitchen -- and had thus been stored there for some period of time. Because this Court has concluded that the United States prevails on the current motion, it has necessarily accepted arguendo Schroeder's version of the facts in that respect (see n.2).

 Drug-Related Forfeitures

 Although Schroeder has not been convicted of a federal drug offense (Section 881(a)(7) permits forfeiture of real estate used "to facilitate the commission of a violation of this title punishable by more than one year's imprisonment"), that is irrelevant under the circumstances here. By the very nature of his drug conviction in the state court and his admissions in the course of his guilty plea there, Schroeder has acknowledged that on each of the two occasions he delivered cocaine to the youngster (who, unknown to Schroeder, was then acting as a confidential informant to the authorities). That admission binds Schroeder as a matter of issue preclusion, and he wisely does not contest that here. And under Section 841(a)(1) any such delivery is a federal felony. *fn6"

  Schroeder has offered no opposition to the forfeiture of his property interest in his law office, instead stating in his Reply Memorandum at 3 n.1 that his interest in that property was transferred to his ex-wife Caralee Schroeder (now Caralee Miller, see n.3) in connection with their dissolution of marriage proceedings. *fn7" No further time need be spent on that subject, then, for the United States is clearly entitled to forfeit Schroeder's interest in the property -- whatever it may be. *fn8"

 As to Schroeder's home, however, he advances two arguments. For one thing, he challenges the notion that the home was used to "facilitate" the delivery because he says it was only incidental and fortuitous that the delivery happened there rather than (say) on the street, in a car or anywhere else. As his second argument, Schroeder renews the contention that forfeiture of his home is disproportionate to the offense (an argument that he originally advanced when he moved to dismiss this action much earlier in its history).

 As for the "facilitation" concept, both sides point -- as they should have -- to our Court of Appeals' opinion in United States v. 916 Douglas Avenue, 903 F.2d 490 (7th Cir. 1990). Of course they cannot both be right, and in this Court's view the United States clearly has the better of it. In fact, our Court of Appeals has just this month (in United States v. 6250 Ledge Road, No. 90-3590, 943 F.2d 721, 1991 U.S. App. LEXIS 21424 (7th Cir. Sept. 11, 1991)) *fn9" unequivocally reconfirmed the principles announced last year in 916 Douglas.

 Unlike a number of other Courts of Appeal, which had read Section 881(a)(7) as requiring a "substantial connection" between the real estate and the drug transaction to permit forfeiture, 916 Douglas, 903 F.2d at 492 found the statutory language "clear, straightforward and unambiguous." Accordingly our Court of Appeals rejected the recourse to legislative history that had generated the "substantial connection" holdings elsewhere (id.). In place of that standard, 916 Douglas, id. at 493, 494 requires only that the relationship between the property and the drug felony be "more than incidental or fortuitous." Accord, 6250 Ledge Road, at *13-15.

 This case meets that test. If telephone conversations to and from a property to arrange for a drug delivery create the necessary more-than-incidental-and-fortuitous link (as 916 Douglas, id. at 494 held), then a fortiori the actual delivery of drugs in the premises sought to be forfeited must satisfy the statutory standard.

  It will not do to urge, as Schroeder does, that the delivery could have been made anywhere and that the use of the residence for that purpose was therefore incidental and fortuitous. *fn10" After all, the statutory word is "facilitate," suggesting anything that makes the transaction perhaps less difficult or less free from hindrance. That was the concept enunciated in United States v. Schifferli, 895 F.2d 987, 990 (4th Cir. 1990) and quoted with approval in 916 Douglas, 903 F.2d at 494. *fn11" Schroeder chose his home as the place to conduct the prohibited transaction -- and given the very special place that our Fourth Amendment jurisprudence gives to a person's home, it cannot be gainsaid that carrying out an illegal transaction in the comparative privacy of one's home "facilitates" that transaction in any normal sense of the statutory term. *fn12"

 916 Douglas, 903 F.2d at 494 (emphasis in original) teaches:


Given these cases, the distinction between a "substantial connection" test and the "in any manner, or part" language offered directly in the statute is blurry at best. We believe the more principled and direct approach, and the one demanded by the plain wording of the statute itself, is to affirm forfeiture of any real estate that is used in any manner or part to commit or facilitate the commission of a drug related offense.

 One of the cases 916 Douglas quoted from in arriving at its conclusion was United States v. 3639-2nd St., N.E., 869 F.2d 1093, 1096 (8th Cir. 1989), which held -- even under the less demanding "substantial connection" test -- that "if persons 'make real property available as the situs for an illegal drug transaction, it is forfeitable.'" Schroeder must lose under the force of the 916 Douglas precedent, which binds this Court.

 As a fallback Schroeder argues that the value of the property to be forfeited is disproportionate to his offense -- that in violation of the Mikado principle, the punishment does not fit the crime. Here his difficulty is that he must swim against the uniform tide of case law all across the country holding that civil forfeiture actions are not "punishments" but are rather remedial. That too is the lesson of a recent Seventh Circuit case, United States v. On Leong Chinese Merchants Ass'n Building, 918 F.2d 1289, 1296 (7th Cir. 1990) and of the hot-off-the-presses 6250 Ledge Road, 943 F.2d at 726-27.

 Again this Court is bound by those square holdings. If the few dicta suggesting the possibility that a civil forfeiture case might go too far in that respect so as to trigger an Eighth Amendment proportionality analysis (Judge Cudahy's concurrence in On Leong, 918 F.2d at 1299; United States v. Vriner, 921 F.2d 710, 712 n. 4 (7th Cir. 1991); and Judge Flaum's concurring opinion in 916 Douglas, 903 F.2d at 495) are to be elevated to the status of a judicial holding, it must take place at the level of a higher court, not a District Court. *fn13"


 There is no genuine issue of material fact, and the United States is entitled to a judgment as a matter of law. Because the necessary next step is to implement the forfeiture under Section 881(a)(7), the parties are directed to submit the proposed form of judgment order (or if they have not agreed on such a form, their respective proposed versions) in this Court's chambers on or before September 27, 1991. This action is set for a status hearing at 8:45 a.m. September 30, 1991. *fn14"

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