Street is connected to illegal drug activities. Indeed, claimant does not now directly challenge the Government's probable cause argument or claim for forfeiture.
Testing Excessiveness Under the 8th Amendment
What Gary Taylor does is argue that summary judgment should be denied because forfeiture in this case would violate the Excessive Fines Clause of the Eighth Amendment for two reasons. First, Taylor claims that it would be constitutionally excessive to forfeit his property because he has equity in it worth approximately $ 110,000.00 while the drugs at issue were only worth $ 14,000.00. Second, Taylor claims that forfeiture would affect his two children who currently live at the property and leave them without a safe place to live.
The United States Supreme Court has held that in rem civil forfeitures are subject to the limitations of the Eighth Amendment's Excessive Fines Clause. Austin v. United States, 509 U.S. 602, 622, 125 L. Ed. 2d 488, 113 S. Ct. 2801 (1993). The Austin court refused to establish a bright-line test for determining whether a forfeiture is "excessive," and left this determination to the discretion of the lower courts. Id. at 622-23 ("prudence dictates that we allow the lower courts to consider [what factors to consider in deciding whether a forfeiture is constitutionally 'excessive'] in the first instance.") Since the Austin decision, the Seventh Circuit has held that a forfeiture is not excessive unless the connection between the offense and the real property is "incidental and fortuitous." United States v. Plescia, 48 F.3d 1452, 1462 (7th Cir. 1995) (citing United States v. Real Estate Known as 916 Douglas Ave., 903 F.2d 490, 494 (7th Cir. 1990)). If so, forfeiture may be denied as inappropriate and excessive; otherwise, forfeiture is constitutionally valid. The rationale underlying this standard is the express language of 21 U.S.C. § 881(a)(7) which allows for forfeiture of real property that is used "in any manner" to facilitate the eligible offenses. Accordingly, the Seventh Circuit has affirmed forfeitures even when the real property did not play a major role in the offense. For example, in Plescia the court affirmed a forfeiture based primarily on one phone call to the claimant at his house to set up a large cocaine transaction and, in lesser part, on the fact that the claimant gave his phone number out to be used for drug-related business. In 916 Douglas Ave. the court affirmed a forfeiture of real property based on two telephone calls to the claimant's home wherein he arranged a drug transaction. 916 Douglas Ave., 903 F.2d at 494.
Applying the "incidental and fortuitous" standard here, I find that the defendant property was not merely "incidental" to criminal activity. As discussed above, police detectives supervised two controlled purchases of cocaine at the property and seized a total of 90 grams of cocaine and marihuana there, too. Taking into account the fifteen drug sales between February and April, I conclude that the illegal activities at the defendant property were repeated and ongoing. Finally, the evidence recovered by the police during their search of the property indicate that claimant stored drugs there (80 grams of cocaine and 10 grams of marihuana) and typical tools of the drug trade, i.e. the scale and plastic bags. Above and beyond all this, police reported finding claimant flushing drugs down the toilet at the time of the search, indicating that an even greater quantity of drugs had been present at the property. I conclude that the defendant property was used in an intentional and repeated manner for transactions in illegal drugs, and therefore forfeiture of this property would not violate the Constitution's Excessive Fines Clause.
Admittedly, two of the claimant's allegations cause some hesitation. First, the value of claimant's equity in the defendant property (accepted, for this motion, as $ 110,000.00) substantially exceeds the street value of the drugs recovered from the property (accepted, for this motion, as $ 14,000.00 worth of cocaine and a small amount of money for ten grams of marihuana). But this discrepancy alone cannot serve to avoid forfeiture for several reasons. First, historically in rem forfeiture was based on the fiction that the property is guilty, and thus the issue is "not how much the confiscated property is worth, but whether the confiscated property has a close enough relationship to the offense. Austin, 113 S. Ct. at 2815 (Scalia, J., concurring) (citing 1 J. Bishop, Commentaries on Criminal Law §§ 816, 824, 825, 833 (7th ed. 1882), a prominent 19th-century treatise). The Seventh Circuit thus far has adhered to this principle. See Plescia, 48 F.3d at 1462. Second, current federal and state drug laws are not lenient, and Congress and the courts exact high penalties for violating them. Under federal law, a first-time offender (and Taylor will be a first time offender of a drug crime if he is convicted in state court) could face a fine of up to $ 1,000,000.00, 21 U.S.C. § 841(b)(1)(C). Even the federal sentencing guidelines would prescribe a maximum fine of roughly $ 175,000.00 for the offense of possession with the intent to distribute the amount of cocaine at issue here.
Under Illinois law, claimant could be subject to a maximum fine of $ 200,000.00. 720 ILCS 570/401(d).
The other thing that gives pause is claimant's allegation that his two young children live at the property and that they will lack a safe place to reside if it is confiscated. While this would concern anyone, claimant does not present any supporting evidence beyond this allegation that his children have no reasonable alternative home available to them, in the care of their mother at some other location, for example. Also, I question whether this property has provided a safe residence for the children thus far where drugs appear to have been sold there on a regular basis. In sum, often times claimants will have family members who will be negatively affected by the forfeiture of the claimant's house, and so this fact alone cannot serve to preclude the penalty applicable here. Unfortunately, under current law everyone runs the risk of losing a home when one member of the household chooses to deal drugs from within.
Finally, the claimant urges me to apply a proportionality analysis in this case and thereby find that forfeiture would be constitutionally excessive. However, I am constrained from doing so for two reasons: (1) the Seventh Circuit's "incidental and fortuitous" standard is akin to an "instrumentality" test that focusses on whether the real property was an instrument of the criminal activity to the general exclusion of other factors, see Chandler v. United States, 36 F.3d 358, 365 (1994) (explaining the "instrumentality" test), and (2) the facts of this case show a strong nexus between the defendant property and the claimant's illegal drug activities.
In addition, claimant's exposure to fines for the offenses here could quite easily equal or exceed the equity he possesses in his property.
For the foregoing reasons, I hereby order forfeiture of the defendant property located at 5307 W. 90th Street, Chicago, Illinois. George Washington Savings Bank is entitled to recoup the value of its interest in this property, and so the Government is hereby ordered to ensure that the bank be given an opportunity to secure the value of its interest in the property.
James B. Zagel
United States District Judge
Date: Dec 12, 1996