Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-2630
UNITED STATES,
Plaintiff, Appellee,
v.
ONE PARCEL OF REAL PROPERTY WITH BUILDINGS, APPURTENANCES
AND IMPROVEMENTS KNOWN AS 45 CLAREMONT ST., LOCATED IN THE
CITY OF CENTRAL FALLS, RHODE ISLAND,
Defendant,
MARIA BENAVIDES,
Claimant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Stahl, Senior Circuit Judge.
Peter P. D'Amico, D'Amico & Testa, and Debra A. Howson for
appellant.
Michael P. Iannotti, Assistant United States Attorney, and
Craig N. Moore, United States Attorney, for appellee.
September 21, 2004
Per curiam. Claimant-appellant Maria Benavides
("Benavides") appeals from the district court's forfeiture of her
real property. Finding no error, we affirm the district court's
ruling.
I. BACKGROUND
Benavides purchased the property at issue, a three-family
dwelling located at 45 Claremont Street in Central Falls, Rhode
Island, on March 22, 2001. The first floor became the residence
for Benavides, her boyfriend Shawn Montegio ("Montegio"), and their
four children. The remaining two units were rented to others.
Despite Montegio's relatively modest annual income,
Benavides knew that he consistently had a significant amount of
money at his disposal. It was Montegio who provided Benavides with
$19,000 in cash towards her down payment for the property. In
addition, Montegio spent $12,000 in renovations to the property,
and he also gave Benavides a $4,400 Rolex watch and most of the
$9,000 that she used to buy a 2000 Ford Windstar.1 Benavides,
moreover, was aware that Montegio had served a prison sentence for
a drug-related offense.
In November 2002, law enforcement agents, suspecting
Montegio of drug involvement, began monitoring his telephone
conversations. On January 13, 2003, agents intercepted a
1
Benavides only admitted that Montegio gave her most of the
money to buy the Windstar after she was presented with evidence
that she could not possibly have purchased it on her modest salary.
-2-
conversation between Montegio and Jorge Ferreras ("Ferreras") in
which they discussed the sale of cocaine by Ferreras to Montegio.
The next day, numerous calls pertaining to the sale were monitored.
Many of the calls took place within minutes of one another. During
one call, Benavides talked to her cousin, Jessica Olivares
("Olivares"), about how best to transport boxes (later determined
to contain cash) to Montegio that Olivares was storing for him at
her residence. Benavides suggested that, to avoid arousing
Olivares' mother's suspicion, Olivares put the boxes in a bag and
tell her mother that the bag contained clothes for Benavides'
children.
On January 15, 2003, the transaction between Montegio and
Ferreras took place. That evening, a call from Ferreras to
Montegio was intercepted during which Benavides functioned as a
Spanish-English translator for Montegio. Ferreras complained that
"135" was missing, and even though neither Ferreras nor Montegio
had mentioned the word "dollars," Benavides added the word
"dollars" to her translation.
Benavides was also heard in additional intercepted calls
that concerned drug transactions involving Montegio. For instance,
on January 27, 2003, Montegio and Julio Jaiman ("Jaiman") spoke
several times about a cocaine transaction. One minute after
Montegio called Jaiman, he called Benavides and stated, "that kid
-3-
went home." Benavides' response to that statement was simply,
"okay."
On February 8, 2003, a call between Montegio and
Francisco Jose Bermudez ("Bermudez") was intercepted. During the
call, there was discussion of the purchase by Montegio of nine
kilograms of cocaine. At one point in the conversation, Montegio
asked Benavides to translate Bermudez's statements from Spanish to
English. Once again, rather than providing literal translations of
Bermudez's statements, Benavides, on more than one occasion, added
and subtracted words. For example, Bermudez said the following to
Benavides: "Tell him that if he can give me something ahead, in
advance, because since it's the new family then you understand me."
Benavides translated that statement as, "He's going to need some
ahead because it's the different people that he's dealing with."
On February 9, 2003, shortly after 7:00 p.m., the sale
between Montegio and Bermudez occurred in the kitchen at 45
Claremont Street. During the transaction, which took a little over
an hour, Benavides and her four children remained in the living
room, a room separated from the kitchen by the dining room. From
the living room, it was not possible to reach the only bathroom in
the first-floor apartment without first passing through the
kitchen.
-4-
At about 8:00 p.m., law enforcement agents entered the
first-floor apartment. At trial, two of the agents testified that
the smell of cocaine pervaded the premises.
When the agents entered the house, Montegio ran from the
kitchen toward the bathroom, holding a loaded, nine-millimeter gun,
which he tossed in the toilet. In the kitchen, the agents found
the following: (1) nine kilograms of cocaine on the toaster oven;
(2) $115,000 in cash on the center island; (3) several kilogram
wrappers in the sink; and (4) a scale and plastic-bag sealer on a
counter.
On March 11, 2003, the government filed a complaint for
forfeiture against the property located at 45 Claremont Street. On
April 21, 2003, Benavides filed her claim to the property.
On October 31, 2003, following a bench trial, the
district court entered judgment in favor of the government.
Benavides filed a timely appeal. On appeal, she raises the
following issues: (1) whether the district court erred in finding
that she was not an innocent owner; and (2) whether the forfeiture
of her home violates the Excessive Fines Clause of the Eighth
Amendment.
II. INNOCENT OWNER DEFENSE
Benavides first contends that the district court's
forfeiture order was erroneous because she was an innocent owner.
When a district court conducts a bench trial, its factual findings
-5-
are entitled to "considerable deference." See, e.g., United States
v. 15 Bosworth St., 236 F.3d 50, 53 (1st Cir. 2001); see also
United States v. Iacaboni, 363 F.3d 1, 7 (1st Cir. 2004) (noting
that "great deference" is extended to findings based on a
credibility determination). A district court's legal
determinations, however, are reviewed de novo. See, e.g., 15
Bosworth St., 236 F.3d at 53.
To carry its burden in a civil forfeiture action, the
government must satisfy the requirements of both the applicable
forfeiture statute and the Civil Asset Forfeiture Reform Act of
2000 ("CAFRA"), the relevant portions of which have been codified
in 18 U.S.C. § 983(c).2 The applicable forfeiture statute, 21
U.S.C. § 881(a), provides, in relevant part:
The following shall be subject to
forfeiture to the United States and no
property right shall exist in them:
. . . .
(7) All real property . . . used, or
intended to be used, in any manner or part, to
commit, or to facilitate the commission of, a
violation of this subchapter punishable by
more than one year's imprisonment.
Moreover, in a suit or action brought under any civil forfeiture
statute, § 983(c)(1) states that "the burden of proof is on the
Government to establish, by a preponderance of the evidence, that
the property is subject to forfeiture." Section 983(c)(3) further
2
CAFRA applies to forfeiture proceedings commenced on or after
August 23, 2000. See Civil Asset Forfeiture Reform Act of 2000,
Pub. L. No. 106-185, § 21, 114 Stat. 202, 225.
-6-
provides that, "if the Government's theory of forfeiture is that
the property was used to commit or facilitate the commission of a
criminal offense, or was involved in the commission of a criminal
offense, the Government shall establish that there was a
substantial connection between the property and the offense."
Yet, even if the government satisfies the requirements of
§§ 881(a)(7) and 983(c), it does not necessarily follow that there
will be a forfeiture. Section 983(d) contains an innocent owner
defense that provides, in relevant part:
(1) An innocent owner's interest in property shall
not be forfeited under any civil forfeiture statute. The
claimant shall have the burden of proving that the
claimant is an innocent owner by a preponderance of the
evidence.
(2)(A) With respect to a property interest in
existence at the time the illegal conduct giving rise to
forfeiture took place, the term "innocent owner" means an
owner who–
(i) did not know of the conduct giving rise
to forfeiture . . . .3
In this case, the district court determined that the
government carried its burden of proving that the property in
question was subject to forfeiture pursuant to § 881(a)(7).
Benavides does not question that determination on appeal.
3
Prior to its amendment in 2000, § 881(a)(7) contained its own
innocent owner defense. Although, when the parties and the
district court refer to the innocent owner defense, they at times
refer to the language of the pre-2000 version of § 881(a)(7),
§ 983(d)'s codification of the innocent owner defense applies in
this case, as the forfeiture action was commenced after August 23,
2000. The error, however, is not determinative.
-7-
At trial, Benavides claimed that she was an innocent
owner. Although the parties did not dispute Benavides' ownership
interest in the property, what they disputed was whether she had
knowledge of the event that gave rise to this forfeiture action--
the February 9 transaction. Benavides, thus, had to prove that she
lacked knowledge of the transaction to be entitled to the
protections of the innocent owner defense. Benavides relied on her
own testimony to carry her burden.
The district court ruled that Benavides failed to carry
her burden. The ruling was based, in large part, on its belief
that Benavides was not a credible witness. We find that the trial
record sufficiently supports the district court's ruling.
First, we review the details of the February 9
transaction. The smell of nine kilograms of cocaine would have
been impossible for Benavides to miss. In addition, it is unlikely
that Montegio would have left the cocaine, a scale, a plastic-bag
sealer, kilogram wrappers, and $115,000 in cash in open view in the
kitchen, for a little over an hour, if Benavides had not known of
the transaction. The fact that Benavides and her children could
not reach the only bathroom in the apartment without going through
the kitchen adds to the likelihood that she knew of the
transaction.
Second, recorded phone conversations pertaining to both
the February 9 transaction and other drug transactions further
-8-
support the district court's ruling. Although Benavides testified
that her participation in those calls was limited to her role as a
translator, and that she had no knowledge of the subject matter of
the conversations, the district court reasonably found that her
testimony lacked credibility. Benavides evidenced an awareness of
the drug-related nature of the conversations in the following ways:
(1) by adding her own thoughts and information to her translations;
(2) by appearing to understand seemingly meaningless words and
phrases; and (3) on one occasion, by arranging to acquire the cash
that was used to purchase drugs.
Third, we note Benavides' knowledge of both Montegio's
prior conviction of a drug-related offense and the significant
amount of money that he regularly had at his disposal. Of
additional importance is the fact that the district court, in
making a credibility judgment, noted that Benavides did not testify
truthfully about how she obtained the money to buy the Windstar in
her deposition or at trial.
The burden in this case was not on the government to
establish that Benavides had knowledge of the February 9
transaction; to the contrary, it was on Benavides to establish that
she lacked knowledge of the transaction. The evidence presented at
trial adequately supports the district court's conclusion that
Benavides failed to carry her burden. We, therefore, affirm the
-9-
district court's refusal to allow Benavides to invoke the innocent
owner defense.
III. EIGHTH AMENDMENT
Benavides next asserts that the forfeiture sought in this
case violates the Excessive Fines Clause of the Eighth Amendment to
the United States Constitution.4 The factual findings made by the
district court in conducting the excessiveness inquiry must be
accepted unless clearly erroneous. United States v. Bajakajian,
524 U.S. 321, 337 n.10 (1998). The question of whether the
forfeiture here is constitutionally excessive is reviewed de novo.
See id.
In Austin v. United States, 509 U.S. 602 (1993), the
Supreme Court held that an in rem civil forfeiture action pursuant
to 21 U.S.C. § 881(a)(7) was subject to the Excessive Fines Clause,
but left it for the lower courts to decide what factors should be
used to determine whether a forfeiture is constitutionally
excessive. See id. at 618, 622-23. Three tests have surfaced for
making this determination: (1) the "instrumentality" or "nexus"
test, (2) the "proportionality" test, and (3) the "hybrid
instrumentality-proportionality" test. See United States v. 221
Dana Ave., 81 F. Supp. 2d 182, 190-91 (D. Mass. 2000), vacated on
other grounds, 261 F.3d 65 (1st Cir. 2001); United States v. 40
4
The Eighth Amendment provides that "[e]xcessive bail shall
not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted." U.S. Const. amend. VIII.
-10-
Clark Rd., 52 F. Supp. 2d 254, 267 (D. Mass. 1999); United States
v. 154 Manley Rd., 4 F. Supp. 2d 65, 67-70 (D.R.I. 1998).
The "instrumentality" test focuses on the connection
between the alleged wrong and the property subject to forfeiture.5
See, e.g., 221 Dana Ave., 81 F. Supp. 2d at 190. The
proportionality test, on the other hand, compares "the harshness of
the forfeiture with the severity of the crime." See, e.g., id.
The hybrid test, as its name suggests, combines the two. See,
e.g., id.
In Bajakajian, the Supreme Court adopted the
proportionality approach in a case involving an in personam
criminal forfeiture action. See 524 U.S. at 333-34. The Court
held that a forfeiture violates the Excessive Fines Clause if it is
"grossly disproportional to the gravity of the defendant's
offense." Id. at 324. Although noting that "any judicial
determination regarding the gravity of a particular criminal
offense will be inherently imprecise," the Court looked to the
following in evaluating proportionality: (1) whether the offense is
related to other illegal activities; (2) the potential penalties
5
After CAFRA, in order for the government to prove that
property used to facilitate a drug transaction is subject to
forfeiture, it must prove there is a substantial connection between
the property and the crime. See 18 U.S.C. § 983(c)(3). Thus, once
the government has met its burden, the instrumentality test is
satisfied.
-11-
for the offense; and (3) the harm caused by the offense. See id.
at 337-40.
The Supreme Court has not directly addressed whether the
"grossly disproportional" standard applies to in rem civil
forfeiture actions. However, in adopting the proportionality test
in Bajakajian, the Court focused on the punitive nature of the
forfeiture at issue, noting that "the test for the excessiveness of
a punitive forfeiture involves solely a proportionality
determination." Id. at 333-34 (emphasis added). And, in applying
the Excessive Fines Clause to civil in rem forfeiture actions in
Austin, the Court stated that "the question is not . . . whether
forfeiture under [§ 881(a)(7)] is civil or criminal, but rather
whether it is punishment." 509 U.S. at 610 (emphasis added). We,
thus, join almost all of our sister circuits in deciding that the
punitive nature of civil in rem forfeitures under § 881(a)(7)
warrants application of the "grossly disproportional" standard to
determine whether a forfeiture violates the Excessive Fines Clause.
See, e.g., United States v. Collado, 348 F.3d 323, 328 (2d Cir.
2003); United States v. Wagoner County Real Estate, 278 F.3d 1091,
1099-100 (10th Cir. 2002); United States v. Ahmad, 213 F.3d 805,
816 n.4 (4th Cir.), cert. denied, 531 U.S. 1014 (2000).6
6
See also United States v. 817 N.E. 29th Drive, 175 F.3d
1304, 1309 (11th Cir. 1999); Towers v. City of Chicago, 173 F.3d
619, 625-26 (7th Cir.), cert. denied, 528 U.S. 874 (1999); United
States v. 3814 N.W. Thurman St., 164 F.3d 1191, 1197 (9th Cir.
1999); Yskamp v. Drug Enforcement Admin., 163 F.3d 767, 773 (3d
-12-
Therefore, the question is whether the harshness of the
forfeiture is grossly disproportional to the gravity of the crime.
Here, the harshness of the forfeiture is significant. Benavides
lives at the property, which has a fair market value of
approximately $200,000, with her four young children, and she rents
out the two upper-floor apartments for extra income. These
factors, however, are outweighed by Benavides' culpability and the
gravity of the crime giving rise to the forfeiture.
Benavides was not an innocent owner. The evidence at
trial showed that she was directly involved in the February 9
transaction, as well as several other drug transactions arranged by
Montegio. See supra. Moreover, the February 9 transaction
involved nine kilograms of cocaine, with a wholesale value of
approximately $200,000, and a street value of more than one million
dollars. The penalty for the crime from which this forfeiture
action arises is high--up to life imprisonment and over four
million dollars in fines. The harshness of the forfeiture is not
"grossly disproportional" to the gravity of the offense.
Affirmed.
Cir. 1998); United States v. E. 415 Mitchell Ave., 149 F.3d 472,
476-77 (6th Cir. 1998).
-13-
United States v. One Parcel of Real Property With Buildings, Appurtenances & Improvements
Court: Court of Appeals for the First Circuit
Date filed: 2004-09-22
Citations: 395 F.3d 1, 108 F. App'x 651
Copy Citations