United States v. South Half of Lot 7 & Lot 8

FAGG, Circuit Judge,

dissenting.

I believe Congress’ statement in section 1955(d) that “[a]ny property * * * used in [an illegal gambling business] may be seized and forfeited to the United States” plainly permits the government to forfeit real property. 18 U.S.C. § 1955(b) (1982). Thus, following the Second Circuit’s lead in United States v. The Premises & Real Property at 614 Portland Avenue, 846 F.2d 166, 167 (2d Cir.1988) (per curiam), aff'g 670 F.Supp. 475 (W.D.N.Y.1987), I would reverse the district court’s order dismissing the government’s forfeiture actions and remand for further proceedings on the government’s complaints for forfeiture.

Settled rules of statutory construction control the issue before the court. Our task is to carry out congressional intent. United States v. James, 478 U.S. 597, 612, 106 S.Ct. 3116, 3125, 92 L.Ed.2d 483 (1986); United States v. Jones, 811 F.2d 444, 447 (8th Cir.1987). To that end, if Congress has not defined a statutory term, we must assume Congress gave well-established words their ordinary meaning. See James, 478 U.S. at 604, 106 S.Ct. at 3121; Jones, 811 F.2d at 447. In this instance, the ordinary meaning of the word “property” includes both real and personal property. See Black’s Law Dictionary 1095 (5th ed. 1979); Webster’s Third New International Dictionary 1818 (1981). Furthermore, Congress’ use of the word “any” to describe property “undercuts a narrow[er] construction.” James, 478 U.S. at 605, 106 S.Ct. at 3121. Finally, we may not ignore a statute’s plain meaning unless the legislative history unquestionably shows a clear statement of contrary intent. Burlington N.R.R. v. Oklahoma Tax Comm’n, 481 U.S. 454, 461, 107 S.Ct. 1855, 1859, 95 L.Ed.2d 404 (1987); James, 478 U.S. at 606, 106 S.Ct. at 3122.

The court initially takes up a laundry list of collateral matters, ante at 1365-66, that it admits is “insufficient justification to warrant a construction of the phrase ‘any property’ [that] excludes real property,” id. at 1366. Regardless of this admission and section 1955(d)’s plain language, the court nevertheless concludes the “legislative history, when viewed in light of [those matters] * * * establishes that Congress never intended the statute to be used to seize real property,” id. at 1369. But see United States v. The Premises & Real Property at 614 Portland Ave., 670 F.Supp. 475, 477-78 (W.D.N.Y.1987), aff'd, 846 F.2d 166, 167 (2d Cir.1988). We are not permitted, however, to look beyond a statute’s plain terms and delve into its legislative history in order to generate an ambiguity that is not present in the statute in the first place. See Unit*1373ed States v. Harvey, 814 F.2d 905, 916 (4th Cir.1987). The court’s methodology simply turns the process of statutory construction on its head and sidesteps an otherwise inescapable result.

In any event, I do not believe the legislative history of section 1955 supports the court’s position. Although the court acknowledges the relevant history is sparse, see ante at 1368, it nevertheless concludes that a single exchange between one senator and an assistant attorney general dictates the result it reaches. See id. at 1367-68. I am not convinced.

After appearing before the subcommittee considering the bill, the assistant attorney general responded to a senator’s request for proposed statutory language that would permit forfeiture of several items of personal property. See id. In doing so, the suggested language he ultimately supplied — “any property” — was significantly broader and in no way excluded real property. See id. at 1367. The full committee adopted this language and, five months later, forwarded the bill for consideration. See id. at 1367. Ten months after that, Congress enacted the forfeiture provision, leaving the “any property” language intact. See id. at 1368. The legislative history contains no indication that either the committee or Congress gave this language anything other than its plain, ordinary meaning. As the Supreme Court has aptly observed, “ ‘[t]he plain words and meaning of a statute cannot be overcome by a legislative history [that] * * * may furnish dubious bases for inference in every direction.’ ” Ex Parte Collett, 337 U.S. 55, 61, 69 S.Ct. 944, 947, 93 L.Ed. 1207 (1949) (quoted citation omitted).

In sum, I do not believe this unrevealing legislative history justifies departing from section 1955(d)’s ordinary meaning. See James, 478 U.S. at 606, 106 S.Ct. at 3122. Even if the isolated dialogue relied on by the court “raises * * * questions,” ante at 1367, the answers to those questions are inconclusive at best, see Burlington N.R.R., 481 U.S. at 461, 107 S.Ct. at 1859. When that is the case, we carry out Congress’ purpose by adhering to “the plain language of the statute itself.” United States Marshals Serv. v. Means, 741 F.2d 1053, 1056 (8th Cir.1984) (en banc). Thus, in my view, the words “any property” in section 1955(d) permit the government to forfeit real property under the provisions of that statute.

Finally, the alternate holding, see ante at 1368-72, adds nothing to the court’s decision in this case. It gratuitously embraces a fourth amendment theory that was not raised in the parties’ motions to dismiss or considered by the district court. Nor do the appellees specifically claim in their brief on appeal that a judicial probable cause determination was required before the forfeitures could proceed. Consequently, the alternate holding, which addresses an important constitutional application, will take the government by complete surprise, see Hormel v. Helvering, 312 U.S. 552, 556, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941). Indeed, the decision that the district court lacked jurisdiction over the real property sought to be forfeited under section 1955(d) brings decisionmaking to an end, and this court has no authority to issue an advisory opinion in the guise of an alternate holding. See United States v. Taylor, 544 F.2d 347, 349 (8th Cir.1976).

Accordingly, I respectfully dissent.