United States v. One Parcel of Land in the Name of Mikell

                  United States Court of Appeals,

                            Fifth Circuit.

                             No. 93-7149.

          UNITED STATES of America, Plaintiff-Appellee,

                                  v.

     ONE PARCEL OF LAND IN the NAME OF Ezekiel MIKELL, etc.,
Defendant,

                Ezekiel Mikell, Claimant-Appellant.

                            Sept. 22, 1994.

Appeal from the United States District Court for the Southern
District of Mississippi.

Before POLITZ, Chief Judge, DUHÉ and BARKSDALE, Circuit Judges.

     DUHÉ, Circuit Judge:

     Ezekiel Mikell appeals the district court's entry of summary

judgment forfeiting his property under 21 U.S.C. § 881(a)(7), 814

F.Supp. 531.   We affirm.

                              BACKGROUND

     In 1991, the government commenced this forfeiture action,

pursuant to 21 U.S.C. § 881(a)(7), against property owned by Mikell

by filing a verified complaint. The complaint included a statement

that, as part of a guilty plea to a drug charge, Mikell had

admitted that in February 1988 he sold drugs from the property.

After reviewing the complaint, a magistrate judge concluded that

the government had established probable cause for forfeiture and

ordered that the property be arrested and Mikell be served with

notice.

     Shortly after receiving notice of forfeiture, Mikell filed a


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claim to the property.           In response, the government moved for

summary judgment.        Mikell's only defense to the motion was that he

did not own the property at the time of the admitted drug offense.

In   February    1988,    the   property   belonged   to   his   parents,   who

allegedly did not know of or consent to his illegal use of their

property.    His parents did not deed the property to him until May

1988.    The district court rejected Mikell's defense, granted the

government's motion for summary judgment, and ordered the property

forfeited.      Mikell appeals.

                                  DISCUSSION

        Title 21 U.S.C. § 881(a)(7) provides that property used to

commit certain drug offenses is subject to forfeiture to the United

States with the following exception:             "[N]o property shall be

forfeited ... to the extent of an interest of an owner, by reason

of any act or omission established by that owner to have been

committed ... without the knowledge or consent of the owner."

(emphasis added).         The question before us is whether the term

"owner" refers to the person who owns the property at the time it

is used to commit the drug offense or the person who owns the

property at the time of the forfeiture proceeding.

      Mikell contends that the term "owner" refers to the person who

owns the property at the time it is illegally used.              In support of

his position, he notes that § 881(h) provides that "[a]ll right,

title, and interest in property described in subsection (a) of this

section shall vest in the United States upon commission of the act

giving rise to forfeiture."        Mikell argues that this section means


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that title vests absolutely in the government on the date of the

illegal act.      Thus, unless the owner at the time of the offense

falls within the exception in § 881(a)(7), the owner is immediately

divested of title and all subsequent transfers of the property are

void.      Mikell then concludes that the property in this case is not

subject to forfeiture because his parents were owners at the time

of the offense, the offense was committed without their knowledge

and consent, and they did not receive notice of the forfeiture.               We

are not persuaded by Mikell's interpretation of the statute.

        "The starting point in every case involving construction of

a statute is the language itself."           Greyhound Corp. v. Mt. Hood

Stages, Inc., 437 U.S. 322, 330, 98 S.Ct. 2370, 2375, 57 L.Ed.2d

239 (1978).      "If the intent of Congress is clear, that is the end

of   the    matter;    for   the   court   ...   must   give   effect   to   the

unambiguously expressed intent of Congress." Chevron, U.S.A., Inc.

v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43,

104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984).             In determining the

clear or plain meaning of a statute, "we look not only to the

particular statutory language, but to the design of the statute as

a whole and to its object and policy."           Crandon v. United States,

494 U.S. 152, 158, 110 S.Ct. 997, 1001, 108 L.Ed.2d 132 (1990).

        Initially, we note that the plain and ordinary meaning of the

word "owner" as used in § 881(a)(7) is the person holding legal

title at the time of the judicial forfeiture proceedings. Mikell's

argument that § 881(h) alters that plain meaning is based on the

assumption that, under § 881(h), all rights and legal title to


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property pass to the United States at the moment of illegal use.

That    assumption      is    contrary        to   the   history    of    §    881(h)    and

structure of the forfeiture statute.

       Section       881(h)   is    a     codification     of   a    well     established

common-law doctrine.           Prior to 1984, in rem forfeiture actions

under § 881 were governed by the common-law relation-back doctrine.

United      States    v.   Parcel       of    Land,   Bldgs.,   Appurtenances,           and

Improvements known as 92 Buena Vista Ave. Rumson, N.J., --- U.S. --

--, ---- - ----, 113 S.Ct. 1126, 1135-36, 122 L.Ed.2d 469 (1993).

Under    that    doctrine,         once      the   government      wins   a    forfeiture

judgment, title vests and relates back to the date of the offense.

See Buena Vista, --- U.S. at ---- - ----, 113 S.Ct. at 1135-36;

Motlow v. State, 295 U.S. 97, 99, 55 S.Ct. 661, 662, 79 L.Ed. 1327

(1935);      Henderson's Distilled Spirits, 14 Wall. 44, 56, 20 L.Ed.

815 (1871);      United States v. Grundy, 3 Cranch 337, 350-51, 2 L.Ed.

459 (1806);      see also United States v. Stowell, 133 U.S. 1, 16-17,

10 S.Ct. 244, 247-48, 33 L.Ed. 555 (1890).

       In    1984,    Congress      codified        this   common-law         doctrine    by

amending the statute to include § 881(h).                  Buena Vista, --- U.S. at

----, 113 S.Ct. at 1136;             see also S.Rep. No. 225, 98th Cong., 2d

Sess. 215, reprinted in 1984 U.S.C.C.A.N. 3182, 3398 (referring to

§ 881(h) as a principle "well established in current law.")                               To

reflect Congress's intent to codify the well established common-law

doctrine, § 881(h), which says that title "shall vest in the United

States upon commission of the act giving rise to forfeiture," must

be understood to mean that title "shall vest in the United States


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upon forfeiture effective as of commission of the act giving rise

to forfeiture."    Buena Vista, --- U.S. at ----, 113 S.Ct. at 1140

(Scalia, J., concurring).

     In addition to reflecting Congress's intent, this reading of

§ 881(h) makes sense under the statutory structure. Section 881(d)

provides that § 881 forfeitures are governed by "[t]he provisions

of law relating to the seizure, summary and judicial forfeiture,

and condemnation of property for violation of the customs laws,"

which are set forth in 19 U.S.C. § 1602 et seq.               It is clear from

these provisions that the government does not get title until there

is a decree of forfeiture.            For example, § 1604 instructs the

Attorney General to institute proceedings in district court when

"necessary" for the recovery of a forfeiture.                  If legal title

vested in the government at the time of the illegal act, judicial

forfeiture proceedings would never be "necessary."

     There is also a common sense reason to support the view that

the owner referred to is the owner at the time the forfeiture

proceeding is begun.     That is the owner whose title and possession

will be displaced, so that is the owner who has an interest in the

proceedings, and who should get notice.            Former owners who have

disposed of the property do not have an interest in it any longer,

and are not entitled to notice.

     Because we hold that title vests in the government on the date

of a forfeiture decree and at that point relates back to the date

of the act giving rise to forfeiture, the owner referred to in §

881(a)(7)   is   the   person   who    holds   title   when    the   forfeiture


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proceedings are instituted.

                              CONCLUSION

     For the foregoing reasons, the district court's decision

granting summary judgment is

     AFFIRMED.




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