United States v. One ( 1992 )

USCA1 Opinion

        September 10, 1992      [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT




                                 ____________________


        No. 92-1410 

                              UNITED STATES OF AMERICA,
                                 Plaintiff, Appellee,

                                          v.

                           ONE PARCEL OF REAL PROPERTY WITH
                      BUILDINGS, APPURTENANCES AND IMPROVEMENTS
                      KNOWN AS 121 WEST SHORE DRIVE, LOCATED IN
                          THE TOWN OF EXETER, RHODE ISLAND,
                                 Defendant, Appellee,
                                                
                                      __________

                              PETER L. CHAMBERLAIN, JR.,
                                Plaintiff, Appellant.
                                 ____________________

        No. 92-1453 

                              UNITED STATES OF AMERICA,
                                 Plaintiff, Appellee,

                                          v.

                     ONE PARCEL OF REAL PROPERTY WITH BUILDINGS,
                       APPURTENANCES AND IMPROVEMENTS KNOWN AS
                      121 WEST SHORE DRIVE, LOCATED IN THE TOWN
                               OF EXETER, RHODE ISLAND,
                                 Defendant, Appellee,
                                                
                                      __________

                              PETER L. CHAMBERLAIN, JR.,
                                Plaintiff, Appellant.
                                 ____________________

                    APPEALS FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND


                [Hon. Raymond J. Pettine, Senior U.S. District Judge]
                                          __________________________

                                 ____________________














                                        Before

                                Selya, Cyr and Boudin,
                                   Circuit Judges.
                                   ______________

                                 ____________________

            Peter L. Chamberlain, Jr. on brief pro se.
            _________________________
            Lincoln  C.  Almond,  United   States  Attorney,  and  Michael  P.
            ___________________                                    ___________
        Iannotti,  Assistant United  States Attorney,  on brief  for appellee,
        ________
        United States of America.


                                 ____________________


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                      Per  Curiam.    Claimant  appeals from  a  judgment
                      ___________

            forfeiting his property (home  and surrounding land) under 21

            U.S.C.     881(a)(7)  (authorizing  the  forfeiture  of  real

            property  "used,  or intended  to  be used"  to  facilitate a

            controlled  substance  offense  punishable by  more  than one

            year's imprisonment).  We address claimant's main arguments.

                      1.     Claimant  contends  there  was  insufficient

            evidence of a  "substantial connection" between his  property

            and  any unlawful drug activity.  See United States v. Parcel
                                              ___ _____________    ______

            of Land & Residence at 28 Emery Street, 914 F.2d  1, 3-4 (1st
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            Cir.  1990) ("We have  consistently required that  there be a

            'substantial connection'  between the property  forfeited and

            the  drug  activity.").   In  particular, he  argues  that no

            marihuana plants were actually located on claimant's property

            and  that  the   district  court's  finding  of   substantial

            connection   was   impermissibly  premised   solely   on  the

            speculation  that the  bale  of marihuana  claimant had  paid

            $54,000  for  immediately  prior   to  his  arrest  would  be

            processed for distribution at claimant's home.

                      We  disagree.   The agreed  statement of  facts (on

            which  the case was presented  to the district  court) may be

            ambiguous as  to the  precise  location of  the 30  marihuana

            plants located "behind the Chamberlain house" and "in an area

            to the  rear of the defendant real property."  But the agreed

            statement  is clear that Chamberlain told a DEA agent that he



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            had 100 marihuana  plants hidden  "on his  property" and  the

            inference  that  marihuana was  located  on  the property  is

            further supported by defendant's guilty plea described in the

            agreed  statement as  a plea inter  alia to  "possession with
                                         ___________

            intent  to distribute  the marihuana  found at  the defendant

            real property . . . . "

                      Second, additional evidence connected  the premises

            to unlawful drug uses  or intended uses.  Claimant,  who told

            undercover agents  he had  been selling narcotics  for twenty

            years, conducted  some of  the negotiations for  purchasing a

            marihuana  bale by  phone  from the  defendant premises,  and

            cocaine (103.75 grams)  as well as drug  trafficking tools (a

            triple beam scale,  Inositol, a how  to grow marihuana  book,

            and  firearms) were  found on  the property.   Claimant  pled

            guilty to  possessing with  intent to distribute  the cocaine

            found  on the premises.   In sum, the  evidence showed actual

            use of the premises to cultivate marihuana and to store drugs

            for  later intended  distribution.   This  was sufficient  to

            establish the requisite substantial connection.

                      Finally, here, where claimant was admittedly in the

            narcotics  business  and  had  manifestly used  his  home  in

            furtherance  of  his  business,  it was  reasonable  for  the

            district court  to conclude that the  marihuana bale claimant

            had paid  $54,000 for immediately  before he was  arrested --

            like the cocaine  found on  the premises --  would have  been



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            stored  at  claimant's   home  had   claimant's  arrest   not

            intervened.   Hence,  unlike  the cases  upon which  claimant

            relies,  both  significant actual  use  as  well as  intended

            future use were adequately established to support forfeiture.

                      2.    Relying  on  United States  v.  Certain  Real
                                         _____________      _____________

            Property and  Premises Known as  38 Whalers  Cove Drive,  954
            _______________________________________________________

            F.2d 29 (2d Cir. 1992), petition for cert. filed, 60 U.S.L.W.
                                    ________________________

            3755  (U.S. April  20, 1992)  (No. 91-1682),  claimant argues

            that the forfeiture of  his home was disproportionately harsh

            for his offense and constitutes cruel and unusual punishment.

            Claimant did  not present  this argument below,  and normally

            arguments may not  be raised  for the first  time on  appeal.

            Were we to consider  the argument, however, we would  find no

            merit in it, for we have recently rejected the Second Circuit

            position  that  forfeitures  are subject  to  proportionality

            analysis  and  have  instead  adhered to  our  position  that

            "proportionality   analysis   is   inappropriate   in   civil

            forfeiture cases under section  881(a)(7)."  United States v.
                                                         _____________

            One  Parcel of  Real Property,  960 F.2d  200, 207  (1st Cir.
            _____________________________

            1992).    Moreover, were  we  to  accept  the Second  Circuit

            approach, there is nothing in  the present record which would

            convince   us  that  the  forfeiture  was  unconstitutionally

            disproportionate.   United States  v. A  Parcel of  Land, 884
                                _____________     __________________

            F.2d  41   (1st  Cir.  1989)  (rejecting   claim  that  civil

            forfeiture of home and 17.9 acres  of land from which 80 live



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            and   50  dried   marihuana  plants   had  been   seized  was

            unconstitutionally harsh).

                      As for  any double jeopardy claim  (also not raised

            below),  we would reject it -- had it been properly preserved

            -- for the first and third reasons explained in United States
                                                            _____________

            v. A Parcel of Land, 884 F.2d at 43-44.
               ________________

                      Affirmed summarily  pursuant to  1st Cir.  R. 27.1.
                      __________________________________________________

            The motion for oral argument is denied.
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