*2 GIBSON,** R. Judge, Senior Circuit and 1989, Myers Also in met and befriended JACKSON,*** Judge. District Meyer Dan while the two were incarcerated HANSEN, Circuit Judge. Myers! Wisconsin. After release from juryA Eugene Myers convicted J.R. of prison, arranged he Meyer for Dan to be charges manufacturing various con- and paroled to work on Meyer farm. spiracy to manufacture a controlled sub- moved to farm in December and stance, money laundering, conspiracy and they planned go together. into “business” foreign commit interstate and travel in aid of Last, Myers’ girlfriend, Connie also lived at racketeering money laundering and offenses. the farm. eventually She Myers learned that also found personal certain real- and Meyer Dan and were involved in the “busi property to be forfeitable because it had growing ness” of marijuana plants. Through been pur- facilitate the offenses trips Rica, a series Meyer Costa and suant or had been Myers arranged large have sum of money mon involved scheme pursuant ey Meyer to 18 that Dan Myers deposited had in a Costa appeals the district court’s1 order of criminal Rican bank wired to farm account in forfeiture but not underlying through Iowa of 13 series wire transfers. Myers argues convictions. that the district transfer, $9,000 each In deposited into (1) erred three respects: instruct- Myers’ farm account in an effort to avoid the ing forfeitability to determine detection the Internal Revenue Service. Myers’ property by a preponderance of the This Myers funded Meyer’s and Dan (2) evidence; instructing the business, new Enterprises, M & M farm awas pur- indivisible tract for marijuana included the growing operation. forfeiture; (3)' poses ordering for- feiture his entire farm in violation of the money, Myers With the began to convert Eighth Amendment’s Excessive Fines his farm into growing concealed Clause. We affirm. operation, and he wrote checks on his farm purchase account to necessary whatever I. BACKGROUND operation for and its concealment. arose, Before Myers this case lived on a Myers grow modified a barn to County, located Allamakee Iowa. He marijuana. He purpose by concealed its true initially acquired his farm separate as two building just a false wall inside the large parcels contiguous purchases barn, at doors one end of the and then he persons. different In hay stacked bales of partially opened mortgaged his Rhomberg entire farm to Joe security doorway give appearance debts that the bam owed to Rhomberg. January Rhomberg hay. was filled with dairy He built a row of ** The HONORABLE JOHN GIBSON Melloy, R. was an Honorable Michael J. Judge Chief judge active of this court the time this case of the United States Court for the District North- January submitted and took senior status on ern District of Iowa. 1, 1994, opinion before the was filed. *** JACKSON, The HONORABLE CAROL E. Unit- Judge ed States District for the Eastern District Missouri, sitting by designation. noted, agreed, that parties creat- trict court along side one stalls or calf
cattle counts through the stalls to dismiss the one of the motions entrance ed a secret barn, he had where not be at issue and would premature interior into the lighting and grow sophisticated on the criminal installed convicted unless *3 bought a back Myers system. ventilation Therefore, post- charges. the district from the barn dig a trench it to hoe and used until motions hearing on those poned the pipe laid pond. He nearby to a duck after trial. away air carry the exhaust as to trench so Myers on the 16 sub- jury convicted pond. Myers the to the bam from the su- counts of second criminal stantive trans- trucking business to from his tracks indictment, parties then the perseding and other items supplies and many port Myers arguments on the and growing presented evidence necessary to the marijuana plants 3 the counts. Count growing forfeiture started two bifurcated to a railroad them proper- and transferred personal residence of real and sought forfeiture they germinat- after barn boxcar next the 853(a)(2), alleging § 21 ty upon U.S.C. based ear tank a railroad Myers steel ed. buried to commit and Myers property used the that a tunnel between serve as underground to crimes, and count 18 drag the to facilitate railroad boxcar. the sealed bam and the personal proper- of real and sought forfeiture Myers trans- larger, grew plants the When 982(a)(1), alleging § ty upon 18 U.S.C. based railroad the from sealed plants the ferred Myers’ property that was involved the bam. “nursery” to boxcar Myers requested money laundering offense. on a Meyer 1991, was arrested In Dan on the forfei- doubt a instruction reasonable began Rica. He then Costa trip return from requested that the and further ture counts law en- and federal cooperate state separate into court divide his farm district Myers’ returned and officials forcement jury The district parcels for the to consider. mari- disclose the help and farm to discover requests. The district these court denied operation. On March juana growing govern- court instructed obtained and officials enforcement law Myers’ prove that farm was ment had Myers’ warrant a search then executed preponderance of the evi- a forfeitable search, videotape of They farm. made Myers’ dence, described and instructions sei- farm and the setup of the showing the property to be single piece farm as marijuana plants approximately zure of (See all, forfeited, Appel- if as a whole. marijuana-growing and a amount 5-20.) App. at lant’s car. and railroad equipment the barn other re- documents and Officials also seized counts, deliberating on forfeiture While residence. lated items found questions submitted modify property they asking if could ar- officers Subsequently, law enforcement by dividing between description charged him in an 18- Myers rested and (Trial homestead, farmland, braidings. and included indictment superseding count court refused marijuana, conspira- Tr. at The district manufacturing counts of descrip- marijuana, laun- to alter the cy to allow the manufacture and tion, to commit interstate a unanimous dering, conspiracy rendered in aid of transportation foreign parcel travel of real forfeiting the entire verdict pursuant to both (See racketeering, forfeiture Ap- count. each forfeiture estate under 853(a)(2) and 21 U.S.C. 24-27.) App. at pellant’s trial, Myers filed vari- Prior his on The district court sentenced pertaining to motions, including several ous 27,1993, and the May convictions seeking forfeiture counts dismissal of forfeiture court filed the order al- ground that the forfeitures part on the challenging Myers appeals, June constitutionally leged in the indictment ap- Myers does not of forfeiture. the order disproportionate in violation convictions. underlying criminal peal his the dis- pretrial hearing, II. DISCUSSION was a indivisible parcel, purpose of deter- appeal contention on first mining originally acquired by requiring district court erred separate his as two farms and in prove that government to his farm was for- instruments, separate years ten executed feitable evidence apart. Therefore, Myers contends that the 853(a)(2)2 court should have treated the farm as two 982(a)(2).3 Myers gov contends pieces for the forfeita- required prove ernment should be criminal bility Although determination. subse- property beyond of real reason quently through lost his farm foreclosure and in Today able doubt. repurchased a unit the terms of one *4 (8th Cir.1994), 21 which 814-15 was instrument, Myers argues that because the case, argued Myers’ held we that the legal description used in the contract de- determining not in did err scribes the as parcels, 853(a)(2) by criminal forfeiture under section it retains its two-tract character. He further preponderance evidence. Based on activity that asserts because the criminal conclusion, Myers’ argument upon this based place only took one par- of the described 853(a)(2) language 21 The fails. cels, the other dis- forfeitable. We money laundering is forfeiture statute agree. 853(a). very language similar to the of section We addressed a similar in 21 issue court, By stating imposing that in sen “[t]he 816-17, adopted F.3d at where we the Sixth person tence of a convicted” Circuit’s rule that real property “tracts of offense, property in shall forfeit subject to forfeiture under section 853 are offense, Congress volved in indicates that defined the instruments and documents money laundering provi forfeiture under the that created the interest in the defendant’s sanction, sentencing sion is also a not an Smith, property.” United States v. 966 F.2d Therefore, offense or element of an offense. (6th Cir.1992). 1045, 1054 in We determined proof applies standard of Bieri that leading the critical facts 982(a)(1) to forfeiture under as conclusion the defendant’s in interest 853(a)(2). Thus, well as under section we is indivisible are the defen- conclude that the district court did not err in acquired dant all the same instructing apply preponderance to time in one instrument and that the of the evidence standard to determine wheth conveyed contiguous as is a unit. 21 F.3d at er farm was forfeitable under 21 817. 853(a)(2) and U.S.C.
Myers would' have us
his
as
view
Smith,
second contention
to
similar
the situation in
where the
by instructing
separable
district court erred
court found that the
had
defendant
853(a)
pursuant
suhchapter
part
imposed
2.
in
Section
states
as follows:
sentence
this
person
Any
subchapter
chapter,
per-
of a violation of
of this
convicted
this
or
II
subchapter
subchapter
chapter
or
this
II of
forfeit
son
to the United States all
punishable by imprisonment for more than one
described in this subsection.
States,
year
irrespec-
shall forfeit to the United
any provision
tive of
of State law—
part
3.
fol-
Section
states in relevant
(1) any property constituting, or derived
lows:
from,
obtained,
any proceeds
person
di-
rectly
indirectly,
or
as the
of such
result
viola-
court,
imposing
person
on a
The
in
sentence
tion;
[the
offense
violation
convicted
an
in
(2)
used,
any
person's property
of the
or
money laundering
or]
statutes of Title 31
used,
any
part,
to be
in
intended
commit,
manner or
title,
person
shall order
forfeit
of,
or to facilitate the commission
any
person-
property,
the
al,
or
violations;
such
...
offense,
any property
involved in such
property.
traceable to such
imposing
The
sentence on such
order,
person,
shall
addition
other
forfeiture because
purposes of criminal
com-
tracts which
individual
in the
interests
acquired his interest
he
at manner which
farm. 966 F.2d
prised the whole
entire farm
forfeita-
property.
inter-
her
transferred
ex-wife
Smith’s
determined,
because,
part
upon
as the
ble
Smith
four-tract
in their
est
trafficking
The court held
it was used
facilitate
at 1054.
Id.
divorce.
their
Thus,
law,
money laundering offenses.
Smith’s divorce
Tennessee
proper-
whether forfeiture
only question is
interest
not create Smith’s
did
shared
fine.
ex-wife had
an excessive
his
farm constitutes
ty
he and
because
(they
had an
entirety
each
by the
tenancy
Eighth Amend
recognize that
whole)
they
interest
undivided
ap
against
prohibition
excessive fines
ment’s
Id. at
separate deeds.
by four
acquired
had
a criminal forfei
plies
forfeitures because
its
property retained
Smith’s
1054-55.
purposes of the Excessive
ture is a “fine” for
the transfer from
after
character
four-tract
v. United
See Alexander
Fines Clause.4
re-
ex-wife,
and the
his
—
States,
U.S. -, -,
S.Ct.
tract was forfeita-
prove that each
quired to
(1993).
2766, 2775-76,
125 L.Ed.2d
facilitating
role
upon each tract’s
ble based
declined to establish
Supreme Court has
drug offense.
determining whether a
multifactor test for
*5
hand, legally lost his
the other
Myers, on
“excessive,”
constitutionally
pre
forfeiture is
through foreclosure and
farm
interest
question to the lower
ferring
leave
by
a new interest
obtained
v.
instance. Austin
Unit
courts in the first
unit,
single
single
at a
a
repurchasing
as
—
-,
-,
States,
113 S.Ct.
ed
U.S.
single
in a
instru-
time,
single price, and
for a
(1993).
2801, 2812, 125
held
L.Ed.2d 488
uti-
estate contract
Although the real
ment.
824,
proportionali
21 F.3d
that a
in
at
historical,
description, the
two-tract
the
lizes
fact-specific
ty analysis requires a
evaluation
Myers as
sold to
a
contiguous and was
is
land
of the
the circumstances
defendant’s
of all of
Therefore, the
single instrument.
whole in a
conduct, including
extent of a
the
criminal
by
its discretion
did not
abuse
district
drug
the
activities and
defendant’s criminal
as
jury to consider the farm a
instructing the
the defendant conducted
amount of time that
property.
parcel of
activities,
order to determine wheth
those
in
unconstitutionally
“ex
er the forfeiture
is that
the
Myers’ final contention
—
Alexander,
U.S. at
cessive.” See
farm, including the
of his whole
forfeiture
-,
Given the broad
constitutionally excessive to forfeit the whole. 853(a)(2) and 18 U.S.C. 83-89.) (Appellant’s App. at The court found preponderance the evidence or although penalty forfeiture here is instructing that the harsh, disproportionate it is not to the seri- separable was not into two tracts for ous crimes for which was convicted. purposes of (Id. Finally, 85.) we conclude at The district court found that the that the forfeiture was not disproportionate defendant had an marijuana-grow- extensive under the Accordingly, ing operation, forfeited had judgment we affirm the court. operation, been in that and that there was a close connection between the forfeited property and the marijuana-growing opera- GIBSON, JOHN R. Senior Circuit Judge, (Id.) tion. failed to offer evidence of concurring part and dissenting part. property, value but a (Id.
appraisal $367,000. indicated value of I concur in the court’s determination that n. Because substantial debt of evidence standard property, $400,- unless it sold for over should be utilized proceeding. dissent, I respectfully however, neither the defendant nor the United with the uti- would equity have lization property. conveyance instrument of *6 (Id.) conclude that findings these the sole criteria determining are for propri- supported by ety the record. It is I evident do so for the reasons property expressed that the real extensively my dissent in United States v. (8th in facilitating Cir.1994). involved marijuana-growing Here, operation by providing only not location issue was tried to the but an instructions, ideal proper concealment of the but the extent of legitimate held himself out as a farm- forfeiture was the result of a direction er, trucker, salvage operator the court and suc- as a matter of law that the entire cessfully convinced others legitimacy be forfeited. The court did inso of his Converting spite questions business. farm into directed as to operation took quantity almost two whether less than the entire of years complete. Accordingly, estate should the district forfeited. be The instructions did not err in determining preemptive prevented forfeiture of the whole farm was dispro- determining whether forfeiture portionate under the of less than proper. all
Additionally, the entire farm was declared jury pursuant
forfeitable to 18 U.S.C. due money
activities. The evidence is clear that
paid equipment and items
marijuana operation from the account the laundered had been trans-
ferred. also pay- made substantial
ments on the real estate and im- contract
provements on the from this ac-
count. was equally for- theory
feitable on this because the clearly involved in the activity