United States of America, Cross-Appellant v. Charles L. Smith, Cross-Appellee, 966 F.2d 1045

United States of America, Cross-Appellant v. Charles L. Smith, Cross-Appellee

966 F.2d 1045

6th Cir.

1992

Check Treatment

*1 disсharged on or Humphreys was because the sale of the mine. the date of

about circumstances, we conclude

Under these meager evidence is not Humphreys’ genuine issue of ma- to create

sufficient

terial fact.

Therefore, although the district court’s incorrect, summary judg

reasoning was appropriate on

ment nevertheless was

Humphreys’ For the rea ERISA claim. above, affirm the district

sons set forth we judgment

court’s for North American See,

Humphreys’ e.g., claim. Russ’ ERISA Wash, Inc. v. Marathon Petrole

Kwik Car Cir.1985) Co.,

(district must be affirmed court’s decision reason, including a rea

if correct for court). district

son not considered

III. CONCLUSION reasons, foregoing AFFIRM

For the summary granting

the district court’s American on each of

judgment to North

Humphreys’ claims. America, Plaintiff-

UNITED STATES

Appellee, Cross-Appellant, SMITH, L. Defendant-

Charles

Appellant, Cross-Appellee. 91-5207,

Nos. 91-5343. Appeals, Court of

Sixth Circuit.

Argued March 1992. 5, 1992.

Decided June

Rehearing July Denied *3 briefed), (argued

Michael Winck (briefed), Marilyn L. Hudson Asst. U.S. At- tys., Jerry Cunningham, Atty., U.S. G. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Knoxville, Tenn., for U.S. briefed), (argued Ball Gordon Knox- ville, Tenn., for Smith. NELSON,

Before: GUY and Circuit REAVLEY, Judges, and Circuit Senior Judge.* REAVLEY, Judge. Senior Circuit guilty A jury found Charles Smith marijuana thirty-five manufacturing on his Pine, Tennessee. acre farm White thirty-six district court sentenced prison years followed three months release, supervised and ordеred criminal forfeiture of three of the four tracts together, Smith’s farm. Both constitute government appeal, Smith and the contest- ing prosecution of this case under fed- law, validity of the search eral farm, propriety dis- Smith’s sentencing and forfeiture or- trict court’s and the affirm Smith’s conviction der. We order, but we vacate Smith’s sen- the case for re-sentenc- and remand tence ing.

I. BACKGROUND the Tennessee August Bu- On (TBI) Investigation obtained and reau of search search warrant to executed a state residence, which is located his Smith’s agents the TBI found no Although farm. residence, a drugs in Tennessee Smith’s * Circuit, sitting by designation. Reavley, for the Fifth Cir- M. Senior Thomas The Honorable Appeals Court of Judge of the United States cuit magistrate helicopter pilot who was The federal heard

Highway Patrol who Smith’s motions recommended that both be simultaneously surveying farm re- denied, appealed. and Smith The district agents that he had located a ported to the adopted magistrate’s court recommen- patch in Smith’s cornfield. The deny suppress, dation to Smith’s motion to the entire farm and agents then searched holding “open that the federal fields” doc- marijuana plants in the fifty-two discovered trine validated the search of the cornfield plants a seed bed cornfield and seven and the area around the barn. But the later de- beside a barn. court deferred its decision on the forfeiture plants Smith had the stroyed these before jury issues to allow the to decide first opportunity inspect or count them. farm, whole, whether Smith used the *4 arrest, the state referred After Smith’s marijuana. to manufacture government for this to the federal case government’s key at trial witness federal law. A federal prosecution under co-worker, was Smith’s former Cleveland grand on one count of jury indicted Smith agents TBI forty- Gardner. discovered intentionally manufacturing in eight marijuana plants prop- on Gardner’s violation of 21 U.S.C. 841.1 The indict- § 18, 1989, erty August days prior ten to called for the forfeiture of ment also their search of Smith’s farm. Gardner tes- pursuant to 21 853. Smith’s farm U.S.C. § grew forty-eight tified that Smith trial, sup- motion to Prior to Smith filed a plants in the seed bed near his barn and evidence, arguing press Gardner, gave transplanted them to who TBI’s of his farm exceeded the them search to his own scope of the state search warrant and thus evidence, At the close of the the court search and seizure law. violated Tennessee provided jury with a verdict form that Smith also filed a motion dismiss the (1) questions: contained two whether Smith action, arguing because the guilty unlawfully manufacturing mari- tracts, farm of four consisted (2) juana, and whether Smith used or in- government could not seek forfeiture of tended to use his farm to commit or facili- Instead, the entire farm as single a unit. tate the commission of that offense. The argued, jury govern- Smith the court must treat each court instructed the prove guilt beyond ment must only a separately, tract and order forfeiture doubt, only prove reasonable but it need government proves of those tracts Smith’s use of the farm to commit the actually used or intended to use that Smith preponderance offense a of the evi- marijuana. to facilitate the manufacture jury questions dence. The answered both argued that forfeiture of the Smith also affirmatively. cruel and unusual farm would constitute punishment Eighth in violation sentencing hearing, At district Amendment. court determined that Smith had manufac- (B) (West (1) Supp.1992) 1981 & In the case of a violation of 21 U.S.C.A. 841 ... (a) involving— subsection of this section provides: (a) Except subchapter, as authorized this (vii) kilograms or more of mixture or any person knоwingly it shall be unlawful for containing substance marijuana, a detectable amount of intentionally— or marijuana plants or 100 or more distribute, manufacture, (1) dispense, or regardless weight; person ... such shall be manufacture, possess distrib- or with intent to imprisonment sentenced to a term of which substance; dispense, ute or a controlled years not be less than 5 and not more ..., years a fine to exceed the than 40 (b) [A]ny person violates subsec- greater ... who of that authorized in accordance with $2,000,000 (a) provisions be sentenced tion of this section shall of Title if the ..., defendant is an individual or both.

follows: including property violated Tennessee search and sei marijuana plants, tured over law, argues (52), zurе which Smith does not beside the found in the cornfield those recognize “open the federal fields” doc (7), on Gardner’s barn explained trine. But as the Allen court objection to court overruled Smith’s rejected argument, it state when plants found at “[t]he the court’s inclusion rights including certain may reserve agreed residence. The court Gardner’s law; stricter standard of search and seizure however, Smith, it must consider with however, such a standard does not have to separately four tracts each of the farm’s in federal court.” Id. at 1168 applied then purposes. The court for forfeiture (citing Loggins, States resi- excluded Tract on which Smith’s (6th Cir.1985)). 336, 338 Federal search located, order. from the forfeiture dencе is applies pros and seizure law in this federal imposed thirty-six Finally, the court ecution, allege does not sentence, by three followed prison month illegal TBI’s under law. search was federal years supervised release. We affirm Smith’s conviction.

II. DISCUSSION B. The Prison Sentence A. The ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Conviction prison Smith attacks his sentence *5 by raising his conviction Smith attacks arguments this court ad with two that need not discuss in arguments that we

two First, argues dressed in Allen. Smith that light in of this court’s recent decision depth government’s of the mari destruction Allen, F.2d 1160 in opportu juana plants Smith had the before Cir.1992).2 in a violation of nity to count them resulted First, argues state’s Smith process rights. In the of his due absence prosecution of this case for federal fаith, however, referral government’s de bad process equal and rights his to due violated plants does not constitute a struction guidelines are no protection Allen, because there process. of due violation But as this regulate such referrals. alleges Because Smith neither at 1168-69. Allen, process not “due does court held of bad faith on nor offers evidence referrals be controlled process mandate part, find no due long prosecutors are through policy as as case.3 violation stamps and exert their acting as rubber Second, that 21 contends Smith or not to discretion as to whether own 841(b)(1)(B) and U.S.S.G. U.S.C. . § Smith, like the prosecute.” Id. at 1166. Table), 2Dl.l(c) Quantity (Drug which § Allen, no evidence of defendant in offers five-year for minimum sentence provide ease, and thus he “rubber-stamping” in this marijuana of 100 or more the manufacture his to demonstrate that due “has failed weight, violate regardless of their plants rights have equal protection process or rights. equal protection process and due violated.” Id. been argu Allen, raised this first Like Smith of sentence for correction Second, dis ment in a motion argues that the Smith Pro Rule of Criminal pursuant Federal denying his motion to erred in trict court court denied the district cedure and TBI’s search of Smith’s suppress because property because there separate present discovered on Gardner’s Although from the Allen is case, many plants the same were similar facts and that those both cases involve was no evidence parties defen- and issues. The Allen home. of the same took Smith’s Gardner from ones that Gardner, of Smith dants were co-workers "the prosecutor Gardner whether asked But the co-defendant-turned-govern- Gardner was a and ment-witness in both got plants you are] marijuana [from attorney cases. Smith’s your from behind were taken same ones that Allen, represented one of the co-defendants “Yes, later?,” responded sir.” Gardner house arguments in he raised several identical sufficiently supports testimony Gardner’s cases. both the 48 finding manufactured that Smith court’s Gardner's plants discovered on erred the court 3.' Smith also contеnds that plants finding the 48 that Smith manufactured already posed statutorily Smith had filed an a sentence less motion because than the appeal judgment. minimum, from the court’s We required we vacate the court’s government agree with the that Smith’s sentence.4 case, Allen’s, “exceptional is not an like justifies our consideration of case” that C. The Forfeiture Order court this issue that district did not parties Both appeal from the district Allen, 954 F.2d at 1168. consider. requiring court’s order criminal forfeiture also, attacks of the four tracts three that constitute sentence, prison arguing that the Smith’s farm. Smith that the dis- in imposing erred district court sentence by holding trict court erred statutory less than the minimum of five government only prove need its forfeiture Congress requires years. agree. preponderance case of the evidence. involving a violation 100 or the case of government argues the court plants, more the defendant by holding erred that each of the four of-imprison “shall sentenced to a term tracts that constitute the farm must be years.” not be less than 5 ment which “property” treated as units of for 841(b)(1)(B) (West Supp. 21 U.S.C.A. § purposes. parties Both contest receiving 1992). After evidence that Smith the court’s determinations as to which that leaves him with a has a heart condition the four tracts are forfeitable. surviving fifty percent for two chance imposed a years, the district court sentence 1. The Standard under 21 Proof оnly thirty-six Sentencing months. The U.S.C. 853 where, here, provide Guidelines To criminal obtain forfeiture under sec- required statutorily “the minimum sen tion must show that greater tence is than the maximum of the *6 property question in the fits one of the applicable guideline range, statutorily the categories property three of in described required minimum sentence shall the 853(a).5 (a) section Subsection does not guideline 5Gl.l(b) sentence.” U.S.S.G. § specify proof the standard of under which (Nov.1991). Despite compelling government showing. the must make this circumstances, the. district court had no (d), however, Subsection creates a rebut- impose discretion to a sentence the below presumption per- table that the convicted statutory minimum. United v. States (6th Cir.), property subject son’s “is to 772 forfeiture un- Hodges, 935 F.2d cert. - -, denied, der if the U.S. S.Ct. this section United States estab- preponderance L.Ed.2d 206 Because the court im- by lishes the evidence of government 4. Smith contends rectly indirectly, because the or the result of such viola- object thirty-six tion; did not to the month sentence it, imposed court at the time that the district (2) used, any person’s property or cannot reverse or vacate the sentence on this used, any part, intended to be commit, in manner or to ground. government But the did instruct the of, toor facilitate the commission prior sentencing hearing court statute to the that the violation; such and required years.' a sentence of at least five (3) person in the case of a convicted of judgment The court noted in its that statute the engaging continuing enterprise in a criminal minimum, five-year imposes a but chose it to title, in violation of section 848 of this the "depart downward” because of Smith’s medical forfeit, any person proper- shall in addition to condition. We can vacate the sentence on this (1) (2), any ty paragraph described in or of his ground passed because the court and considered in, against, property claims and or interest on this issue. rights affording a source of con- contractual 853(a) (West over, Supp.1992) pro- continuing enterprise. 5. 21 U.S.C.A. § the criminal trol court, vides: per- imposing such The sentence on son, order, Any person of a addition to other convicted violation of this shall subchapter subchapter chapter subchapter imposed pursuant or II of this to this sentence punishable by imprisonment for more than chapter, per- subchapter the II of this that States, year one irrespective shall forfeit to the United property all son forfeit to the United States any provision of State law— described in this subsection. (1)any constituting, property or derived from, obtained, any proceeds person the di- person acquired property dur- Elgersma, that” the ni view United States v. after, ing, (11th reasonable time Cir.1991),6 or within a F.2d but that violation, that the viola- period of the panel circuit has since opinion vacated the only likely source tion was the for the granted rehearing en banc. United 853(d) (West 21 U.S.C.A. Elgersma, States v. 938 F.2d added). Supp.1992) (emphasis The statute Cir.1991). clarify Congress does not whether intended interpretation A second of section 853 is apply preponderance standard to to that, although government prove must government’s proving overall burden property subject that the is to forfeiture property forfeit which defendants must un- (a) beyond under subsection a reasonable (a). recognize der subsection three doubt) (d) provides exception subsection an interpretations Congress plausible of what higher to this standard and allows the intended when it drafted section 853. government prove property to con- First, Congress may intended have that “proceeds” stitutes the offense creat- pre create the be able to ing presumption preponderance with a (d) using sumption under subsection Property evidence. to forfei- standard, preponderance but (a) ture under proceeds subsection includes prove ultimately must (section 853(a)(1)), from the offense proper- property subject to forfeiture under sub ty used to commit or the com- facilitate (a) beyond a reasonable doubt. (section 853(a)(2)), mission of the offense rejected Third Circuit this construction “as property gives person Congressional inconsistent with intent” in source continuing control over a crimi- Sandini, 816 F.2d United States v. (section enterprise 853(a)(3)). nal pre- (3rd Cir.1987). The Seventh and Ninth (d) sumption provides, that subsection how- Circuits follow Sandini. ever, applies only proceeds to of- Hernandez-Escarsega, States Language fense. legisla- section 853’s (9th Cir.1989) (“It would make history Congress tive reveals that intended provide for a little sense ... rebuttable to ease the burden on the presumption that certain is sub attempt prove constitutes ject if to forfeiture facts relative to that proceeds S.Rep. of the offense. See No. preponder are established (1984), Cong., 2d 98th Sess. re- *7 evidence, ance of the then a move to be 3182, printed U.S.C.C.A.N. yond-the-reasonable-doubt standard before (subsection (d) permissive а in- establishes denied, forfeited.”), property could be cert. ference under “certain circumstances - -, U.S. 110 S.Ct. partic- which are indicative of the fact that (1990); L.Ed.2d 748 States proceeds drug property” represents ular Herrero, (7th Cir.) 893 F.2d 1541-42 “it difficult to transactions because is often Sandini), (stating approval of cert. de produce particular direct evidence that nied, 496 U.S. 110 S.Ct. constitutes, or was of a defendant (1990); L.Ed.2d 644 United States v. Si with, purchased proceeds”). No fed- such mone, (7th Cir.) 1197-99 however, has con- appeals, eral court of (district by instructing .jury court erred to differentiate between strued section 853 government can create a that rebuttable and other proceeds of the offense presumption preponderance with a of the proof necessary for forfei- on the burden ultimately prove evidence but must ture. beyond property to be forfeitable a reason - doubt), denied, U.S.-, interpretation of sec- possible able cert. The third Congress’ reference to panel 116 L.Ed.2d 609 A infers from S.Ct. tion 853 standard in subsection rejected preponderance of the Eleventh Circuit the Sandi- Congress judge Elgersma panel supposition disagreed, is that 6. One on the more reasonable however, preponderance impose the same stated: "If to can intended 853(a).” preponderance 929 F.2d at 1552 § establish forfeiture under standard (Anderson, J., 853(d) concurring). by using ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍presumption, evidenсe the § (d) Congress intended that standard to scribed conduct.” 816 F.2d at 875. The that (a) as well. The apply under subsection court reasoned because the elements Third, Seventh, and Ninth Circuits conclud proved of a criminal offense must be be interpretation represents ed that this best doubt, yond prepon a reasonable while the Sandini, 816 F.2d at Congress’ intent. applies statutorily derance standard en 1199; 876; Simone, 931 F.2d at Hernan punishments, Congress hanced intended 886 F.2d at 1577. dez-Escarsega, apply pun that the lower standard to the ishment of criminal forfeiture. The Elgers- itself, statutory language courts Like the however, panel, ma concluded that “be history legislative interpreted have yond proper a reasonable doubt is the stan differently point. on this Some section 853 report implies that dard criminal forfeiture is not language in the Senate [because] beyond-a-reason- punishment, charge Congress intended but a criminal to be apply proved any standard to under subsec- able-doubt like other.” 929 F.2d at 1548. (a). S.Rep. No. 225 at 196 & judges tion See Those determined that criminal for 1984 U.S.C.C.A.N. at 3379 & reprinted in charge” feiture is a “substantive criminal (one advantage forfeiture un- of civil procedures apply some criminal because over criminal forfeiture der U.S.C. 881 proceedings. criminal forfeiture Id.7 “the under 853 is that section cases). is in civil proof

burden of lower” existing decide to federal follow however, Circuit, that Third concluded issue, precedent circuit on this close language report implies in the Senate other prove hold that the must that Congress intended that the lower bur- that to criminal forfeiture Sandini, 816 F.2d at 876 apply. den 853(a)by preponderance under section report’s discussion of (concluding from agree evidence. We with Sandini (d) legislative history subsection “[t]he holding represents the nature of a best Congress sought to make makes clear proceeding Congress criminal forfeiture proof in government’s burden of crimi- ambiguous intended it. However as that in the nal forfeitures the same civil be, expressly provides it that a realm”). panel, Elgersma which found “in court shall order criminal forfeiture applies, higher burden concluded addition to other at the time sentence" history legislative that “the itself is incon- imposes Although a that it the sentence. 929 F.2d at 1546. clusive.” proceeding criminal forfeiture bears some matter, pur a criminal its characteristics of guidance from Finding no clear Con pose proper punishment is to determine the gress, that have con the federal circuits charged for the offense once the defen focused on ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the na sidered this issue have proved guilt charge dant’s on that has been proceeding. ture criminal forfeiture of a beyond By requiring a reasonable doubt. relied The Third Circuit Sandini evidence, (a) proof by preponderance that the court mandate subsection *8 purpose of criminal any acknowledge we the “in addition to other order forfeiture it serves as the sentence," forfeiture and ensure that and concluded that “[forfeiture offense, to civil forfeiture that element of the ... but efficient alternative is not an S.Rep. No. penalty pro Congress for that intended it to be. See simply an additional 853, ordinary sentencing.” tinguishable at pre-dates from Id. In a that section the Elev- case in a crimi- enth Circuit held that the defendant 1012 n. 6. Continuing proceeding the nal forfeiture under panel right Elgersma the concluded that statute, 848, Enterprise 21 U.S.C. "is Criminal requirement jury, in combined the to a with jury a trial on the issue whether a entitled to 31(e) jury crimi- that the decide Fed.R.Crim.P. particular because a asset is forfеitable" such verdict, by special and the re- forfeiture nal criminal, opposed proceeding plainly “is to quirement 7 that a criminal in Fed.R.Crim.P. Garrett, civil, United States v. 727 F.2d matter." give the defendant notice indictment 773, (11th Cir.1984), aff’d, 471 U.S. forfeiture, war- will seek criminal (1985). The L.Ed.2d 764 105 S.Ct. of criminal as a rant the treatment forfeiture government’s argu- rejected court Garrett charge, rather than as addi- substantive criminal forfeiture under section 848 ment that criminal " punishment’ punishment. F.2d at 1548. 'essentially indis- tional was a matter of 196-97, thirty parcel reprinted, pos- 1984 forfeit a 225 at acre she 3379-80. We thus find no option at sessed under a lease with an U.S.C.C.A.N. district court’s instruction on error purchase, arguing only that she had used proof. standard portion parcеl drug small of the to commit offenses. The Fourth Circuit noted that be treated as 2. Should four farm requires section 881 forfeiture of “the separate units? any whole of lot or tract of land ... which 853(a)(2) requires forfeiture Section in any part,” is used ... manner or and uses “property” that a defendant all by held that such a “tract” must be defined or facilitate the or intends to use to commit “the natural source for its definition: the offense, if the de- commission of an even creating instrument an prop- interest only part “property” of that fendant uses erty.” at 676-77. Id. Because lease purpose. States v. for that See United thirty parcel single defined the acre as a (9th Littlefield, 821 F.2d Cir. tract, the court affirmed forfeiture of thе 853(a)(2) 1987) (because requires parcel. entire Id. involved the Santoro any “in manner property forfeiture of used twenty-six forfeiture of a acre tract of land subject to even part,” all is forfeiture by that was bisected a road. The defen- used); part v. only when United States portions dant-landowner treated the on Cir.1990) (10th Harris, 903 F.2d separate each side of the road as two ).8 (following Littlefield tracts, property and the had even been then determine what consti- We must separate parcels. taxed as two 866 F.2d at “property” under section 853. tutes Smith’s 1540. But deed which the owner her in the de- obtained interest thus, “property” and if Smith is his single, it as a scribed undivided tract. Id. farm offense, he any used of it to facilitate Relying Reynolds, the Fourth Circuit argues that must forfeit all of it. Smith argument rejected the owner’s must treat each of the four tracts pieces tract constituted two separate piece of constitute the farm as a “property” purposes for forfeiture par- “property” under section 853. Neither held that the forfeited “must be cites, found, opinion an ty nor have we duly instru- determined from the recorded par- circuit that addresses this federal county in the and documents filed ments. question of the identification ticular property is offices where the defendant tracts of real Id. at 1543. “The sub- located.” [owner’s] Circuit, 853. The Fourth under section property as jective characterization of thе however, this issue in the has addressed tracts,” held, “cannot serve two the court forfeiture under section context of civil determining “prop- legal as the basis” for property must and concluded that the 881. Id. erty” under section defined the recorded instruments created the defendant’s in- documents that similarities Because terest in the See United States statutes language purpose of the two Santoro, (4th Cir. v. that the Fourth point, on this we believe 1989); F.2d Reynolds, cor property-identification rule is Circuit’s Cir.1988). forfeiture under section rect for criminal under section as civil forfeiture 853 as well appellant contested Reynolds, In at 1367-68 Littlefield, 821 F.2d required her to 881. See order that district court’s *9 - denied, 870, 853, (2d Cir.1990), cert. interpretation F.2d 880 By adopting of section 911 this 8. 1017, -, inter 1099 Ninth and Tenth Circuits’ S.Ct. 112 L.Ed.2d we follow the pretation U.S. (1991); 111 statute, as forfeiture of the criminal v. One Acre Parcel United States 107.9 of interpretation other circuits 396, Cir.1990). the Land, (3rd well as have made of identical F.2d 400 898 language in the civil that, by requiring forfei agree with these courts statute, 881(a)(7). U.S.C. any used "in that the defendant ture of Property & Residence at States v. Real language plain part," or the statutes’ manner (11th Ave., 921 F.2d 3097 S.W. 111th Cir.1991); requires this result. Corp., v. 141st Street (the government “accomplish can in a crim- simply but instead forfeited her own inter- proceeding inal forfeiture under section 853 est to allow Smith to hold the tracts in fee precisely through what it could do a sepa- simple alone. proceeding rate civil forfeiture under sec- We resolve by apply this issue 881”). Thus, tion we hold that tracts of ing Tennessee’s governing law tenancies property subject real to forfeiture under by entirety.10 law, the Under that a deed by are defined the instruments tenancy by that creates a entirety gives the documents created the defen- spouse each an interest the indi whole property.9 dant’s interest in the Thus, visible estate. the husband and wife application of this Our rule to the each become “the owner of the wholefrom however,

present facts, complicated. is conveyance moment to them.” of initially Smith obtained his interest in the Robinson v. Trousdale County, 516 by separate conveyanc farm virtue of four S.W.2d.626, (Tenn.1974) (quoting Cole separate es of four tracts to Smith and his Collier, Mfg. v.Co. 95 Tenn. 31 S.W. wife, Linda, separate former on four dates (1895)) (emphasis added). To between 1978 1984. The four tracts gether, “[tjhey estate, take but one aas separately are taxed and have been the corporation take, being by would the com subject separate deeds trust. Smith mon person, and, law deemed but one if and Linda divorced in at which time die, one the estate continues in the surviv- conveyed Linda all of her interest in all or, the same corporator as if a were to by single quitclaim four tracts to Smith die.” Beddingfield Newman, v. Estill & deed, govern which Smith recorded. The (Tenn. 118 Tenn. 100 S.W. that, ment quitclaim because the 1907). dies, spouse When one “the surviv- conveyed deed all four tracts single as one or ... takes and becomes vested of the unit, the entire farm “prop constitutes the entire simple estate —a fee by vir estate — erty” forfeiture. The tue grant or conveying deed support finds for this result in property added). to them.” (emphasis Id. the fact that treated the farm as one wife, “On the death of husband single unit, and in the forfeiture statute’s survivor take no new estate or interest— provisions instruction that its “shall be lib nothing that was not him or her before. erally construed to effectuate its remedial It is change properties a mere in the purposes.” 853(o) (West 21 U.S.C.A. § legal person holding legal es —not Supp.1992). Smith counters that we should tate hоlden.” Id. We thus conclude that treat each of the four separately tracts Smith initially his interest in the obtained quitclaim because the deed did actually whole of each of the four tracts virtue create his interest in the farm. Smith rea of the four deeds. Linda, sons that he and who were married they when obtained their interest Because the relies on tracts, four held the tracts as tenants quitclaim deed that Linda delivered to entirety, they thus Smith, owned the must we determine the effect that they person, tracts as if were one each of proper deed had on Smith’s interest in the taking Thus, them the whole. Smith ar ty. Supreme Tennessee’s Court addressed gues, actually convey Linda did not question in another context and con quitclaim interest to him under deed, spouse] cluded “when transfer- [one rule, adopting law,” acknowledge In this' of state in terms and because section 853 exceptions example, there to it. For determining scope contains no rule for government may show that a defendant ac- rights, appropriate “it is to refer to quired piece property through numerous determining prop law state erty the nature of the specific limiting deeds with the intent of proceed interest” involved in a forfeiture reach of a forfeiture order under section 853. ing. Property United States v. Real Certain Lo Leroy Lane, 910343, cated at Cir.1990), F.2d determined, recently 10. As this court because - denied, -; cert. U.S. 111 S.Ct. "[fjorfeiturе proceedings implicate property 113 L.Ed.2d 467 rights *10 traditionally which have been measured

1055 tenancy by red his interest the entire- Smith contends that the forfei [in ..., in ture of ty] to his she became the owner Tract was error wife because he absolute, grew marijuana no on that simple just fee as she would have tract. The government that, argues because the corn predeceased Barry he her.” done had field in which large the officers located Woods, 687, (Tenn.1980) the S.W.2d marijuana patch across Tract 1 added). extended (emphasis Linda’s of her transfer 4, and Tract Tract 4 “facilitated” the com tracts, therefore, interest the four did mission of the by concealing offense actually create Smith’s interest in the patch on Tract 1. To “fаcilitate” the com land more than Linda’s death would 853, mission of the offense under section have. Smith his interest in the obtained property question must bear a “suf separate farm the four deeds that cre- ficient nexus” or “substantial connection” separate ated four tenancies the entire- underlying activity. to the criminal See ty.11 Because the four deeds ac- $22,287, United States v. tually created Smith’s interest the land Currency, Cir.1983) 709 F.2d farm, that now constitutes his we find no (requiring 881); “nexus” under section error in the district court’s decision to treat Harris, 903 F.2d at (requiring 777-78 “nex tract, separately pur- each for forfeiture 853); us” under section United States v. poses. Parcel Land Emery & Residence at 28 St., (1st Cir.1990) 3-4 (requiring 3. Which tracts should be forfeited? “substantial connection” under section 881). that, holdWe when the defendant not contest the Smith does uses real actually physically Tract on which the officers discovered conceal the commission of the offense on marijuana patch in the cornfield. But adjacent property, the nexus is sufficient to argues that the evidence is insuffi- support finding that the “facili support finding cient to he used tated” commission of the offense under Tracts to commit or facilitate com- 853(a)(2). The district court found government mission of the offense. The helped actually physically Tract exempting erred in contends that the court marijuana patch conceal the on Tract Tract 3 from the forfeiture order. finding. supports the evidence this We thus find no error in the district court’s The district court ordered forfei determination that Tract 4 facilitated com ture of Tract because it found that the mission of the offense. tract, seed bed was located on that Finally, Smith contends that there is insufficient finding. support finding evidence to dis that the erred in We district court you agree. Gardner testified are Smith did not use Tract on which his “[i]f looking ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍barn, located, commis standing straight at the residence was to facilitate [the Although agents right seed was on the left of it near sion of the offense. bed] edge or on marijuana of the woods.” The found no in the residence barn, argues exhibits which is locat Tract that Smith show guard ed on Tract borders and faces Tract 1. used the residence to barn,” “straight operation by As one looks at the and to conceal the entire mak designated ing legitimate use appear area to the which Gardner the farm to be a left containing as the area the seed bed is locat of the land. The record contains no evi supports used the house to ed on Tract 2. The evidence thus dence that Smith finding “guard” marijuana, so we need not the district court’s that Smith used use create a marijuana. Tract 2 to manufacture decide whether this would way. subjective quitclaim specifi- note that Linda’s deed treated it that treat- single cally conveyed Moreover, the tracts as a farm is no more dеscribed and each of the four ment of subjective controlling separately. reject char- tracts than was Santoro’s government's her as two tracts. contention that we must treat acterization of Santoro, single F.2d at 1543. Smith’s farm as a unit because Smith *11 prospec- persons give serious consideration forfeiture. nexus to warrant sufficient gain tively potential is in the district court’s as to whether find no error And we presence try risk. I not the mere the downside would worth conclusion provide the any type per 3 did not rule rela- Tract to formulate se residence on to “facili- forfeitures, sufficient type simply analyze of concealment each tive to but an do not hold that Here, We tate” the offense. case-by-case situation on a basis. facilitated a defen- never be offense can farm, relatively defendant had a small in a manner use of dant’s located on the a farmhouse with adjacent prop- appearance creates the entity, as one I treat the would purposes, but legitimate erty used for is acquired notwithstanding it was his- how this result as require neither will we it all forfeitable. For torically, and declare matter of law. purposes, was practical all unit, certainly and the house treated as a Punishment? and Unusual Cruel post” for whatever was was the “command that the forfeiture growing it occurring property, on the be his with combined of Tracts There marijuana legitimate activities. sentence, and un cruel prison constitute point a defendant’s may well at which be punishment because value usual rights will mandate that the constitutional land, suggests be evidence which the of the forfeiture to the of- proportionality $1,000,000, disproportionate to the is near considered. This case is far short fense be marijuana number of relatively small point, of such a however. assume, if we how plants Even involved. ever, order under section forfeiture that a Eighth Amendment’s to the is neither “cruel and

prohibition, this order disproportionate to grossly nor

unusual” - Michigan, v. the crime. Harmelin See

U.S. -, 115 L.Ed.2d 836 111 S.Ct. Helm,

(1991); 463 U.S. Solem v. Con 77 L.Ed.2d

S.Ct. fact, up a fine of

gress, provided has for $2,000,000, forty-year in addition to a sentence, the manufacture of

prison for plants. more

100 or (West 841(b)(1)(B) Supp.1992).

U.S.C.A. § reject Eighth Amendment thus We BARNES, Plaintiff-Appellee, Imogene C. argument. (90-5644), Cross-Appellant

III. CONCLUSION CAVAZOS, Seсretary conviction and the Lauro F. AFFIRM Smith’s sentence, order, Department of Edu his VACATE (90-5470/ cation, Defendant-Appellant re-sentencing for REMAND the case 5874), Cross-Appellee, opinion. accordance with GUY, Jr., Judge, B. Circuit RALPH County, of Jefferson Board of Education dissenting part. concurring part Jr.; Cosby, Kentucky; P. Laken John Hearn; Sherry Heyburn; K. Jels Jim Judge Reavley’s well- in all of I concur Schmitt; Saho; ma; Paul Robert J. portion except that deal- opinion, reasoned Department of Edu States of the farmhouse. ing the forfeiture with Haddad; cation; Allen D. Carol A. a harsh sanc- is intended Forfeiture Rose; Elementary and only to take the State Board of is intended tion. It Secondary dealing also to drug but make Education of the Common profit out