*1 court thus 405(h). The district jurisdic- subject matter lacked
found that it claims.10 Bodimetric’s consider
V. provi- review enacting the
By exclusive Act, Congress ex- Medicare of the
sions that can remedies limited the
pressly from fiscal claimants by
sought dissatisfied may, in some While this
intermediaries. generally of relief
cases, avenues foreclose it is also litigants, civil
available to imple- clearly intended
system modify aspect Any decision
ment. Congress, must be made system courts.
not
Affirmed. America, STATES
UNITED
Plaintiff-Appellee, ESTATE COM- REAL PARCEL OF
ONE KNOWN AS DOUGLAS
MONLY ELGIN, ILLINOIS,
AVENUE, Defen-
dant. BORN, III,
Appeal Paul F.
Claimant-Appellant.
No. 88-3361. Appeals, States Court of Circuit.
Seventh 3, 1989.1
Argued Nov. May 1990.
Decided 16, 1990.
Rehearing July Denied among judges all opinion was circulated 1. This the district have concluded Since we pursuant regular active court in service of the jurisdiction did have matter not 40(f) apparent because of Circuit Rule claims, not we need ad entertain Bodimetric’s Santoro, 866 F.2d States v. flict with United immunity, nor dress defense official Aetna’s (4th Cir.1989), and United Premises govern do we occasion consider have N.E., Street, as Known 3639-2nd to intervene. ment’s motion (8th Cir.1989). judges majority did A rehearing banc. en favor
I. Born, Paul F. III was apparently no stranger transactions. On Febru- ary 20, 1986, Mueller, he met with John investigator undercover for the Cook Coun- ty Attorney’s Office at the Corfu Park, Restaurant Hanover Illinois. already Born had prison served time in for trafficking narcotics and had also been con- weapons for victed offenses. Mueller of- fered kilogram cocaine, to sell Born a Born but declined because he was in the process selling kilogram just a he had purchased. gave Born Mueller his home phone agreed number and the keep two in touch. 15, 1986,
On Mueller called Born at explained home and that he was out of cocaine and needed two ounces. Born stat- quantity problem ed that the was not a agreed to sell Mueller the cocaine for $1600 an ounce.2 Born concluded the conversa- by instructing Mueller to call him at day arrange home the next a time and place for the deal. Walsh, Atty., Thomas P. Asst. U.S. Chi- morning, The next again called Ill., cago, plaintiff-appellee. home, phone but was answered by Don Mazzanti. explained Mazzanti Raab, Raab, J. Barnett Robert & Chica- asleep Born was and could not come to the Ill., go, claimant-appellant. phone. When Mueller said that he was calling purchase of two ounces of about BAUER, Judge, Before Chief cocaine, try again Mazzanti told him to KANNE, Judges. FLAUM later when Born was Later that awake. however, day, Mazzanti called Mueller and BAUER, Judge. Chief arranged to deliver the cocaine that eve- ning Players’ Lounge at the in Stream- judgment This is an from a wood, Illinois. forfeiture in favor of the United States Born, against Paul F. III. The district night place That the deal took as ar- court found that Born had used his one- ranged. lounge, got Mazzanti Outside in property Douglas third interest gave into Mueller’s vehicle. Mueller Maz- Illinois, Avenue, Elgin, exchange to facilitate the fel- zanti for the cocaine. $3200 that, explained cocaine, Mazzanti to Mueller should ony distribution of and ordered the ever need more cocaine he should call Born property pursuant forfeiture of that was, again. delivery according This initial U.S.C. Born claims that be- Mazzanti, way feeling out cause no substantial connection existed be- legitimate. Mueller to make sure he was tween the cocaine and improper. order of forfeiture was We dis- October, 1986, In filed the United States agree suggested with Born’s construction complaint seeking the forfeiture of Elgin, of the statute and affirm. Born’s house Illinois under brief, testimony In his Born claims that he told Mueller court found Mueller’s credi- ble, help though, lightly that he could not him and never discussed and we will not overturn price delivery findings. of the cocaine. The district mon- for the action, calling provisions Prior U.S.C. exchanged for things of ey or value pos conspiracy to was convicted to facilitate used drugs and estate with intent cocaine kilograms of five sess In felony. commission sentence. 23-year given deliver *3 881(a)(6) providing added Born, CR 518 No. 87 States United of proceeds money of and the forfeiture brought this government The (N.D.Ill.) later, Con- drug dealing.4 years Six illegal the real estate seize to action forfeiture by passing loophole closed another gress running his cocaine Born was which from 881(a)(7),the added § an amendment which operation. here, for- extended which at issue provision trial, the district a bench Following provision This estate. to real feiture to facili- was used house that held part: in states, forfei- ordered and drug business his tate forfei- subject to be following shall The in the real interest one-third of Born’s ture property and no States the United ture to timely filed subsequently estate.3 in them: exist right shall court en- the district and appeal of notice used, which is ... (7) property All real determina- court’s pending this stay tered a used, any manner in intended be or to tion. commit, toor facilitate part, or title of, of this a violation commission II. year's one by more than punishable on for determination issue Our threshold imprisonment.... a “substantial is whether of any question added). As with (Emphasis demonstrated must be nection” “starting our statutory interpretation, drug of-r underlying and the employed language must be point 21 forfeiture justify in order fense 442 Corp., v. Sonotone Congress.” Reiter 881(a)(7). Born contends U.S.C. § 2330, 2326, 60 330, 337, 99 S.Ct. U.S. necessary to harmon- is requirement such a (1979). also Consumer 931 See L.Ed.2d Congression- with the forfeiture ize Syl v. GTE Safety Commission Product course, ar- of government, intent. al 102, 108, 100 S.Ct. Inc., vania, 447 U.S. reading of statute. a stricter gues for (1980). This 2056, 766 L.Ed.2d 64 beyond look we will court has stated Act of Substances Controlled only of a statute language express 801-970, a civil included 1970, 21 U.S.C. §§ ambigu language is statutory where for the which called provision forfeiture a literal ous or where forms of of several or thwart result lead to an absurd any manner transport “or used statutory scheme. of the overall purpose sale, receipt, transportation, facilitate the Tex-Tow, Inc., 589 States of” concealment or possession, (7th 1310, 1313 section This U.S.C. § is of the statute Here, language automobiles, of for the forfeiture provided unambiguous. clear, straightforward containers, aircraft, raw mate drug trucks, if the appropriate process Forfeiture manufacturing in the used rials used, man- any “used, to be or intended themselves, among drugs to facilitate part, to commit ner or were Significantly absent property. other 881(a)(6) provides for forfeiture 4. Section in the remaining two-thirds instruments, securi negotiable moneys, and/or Mrs. parents, Mr. estate held used facilitate intended "used or ties by Judge Born, entered order Jr. The F. Paul Significantly, subchapter." any violation of may, in U.S. provides that the Marshall Kocoras part" any used language manner "in discretion, premises sell offer to 881(a)(7) is absent. both § not, If and Mrs. Born. price to Mr. reasonable this sec narrower led to a This has to two-thirds parents are entitled Air Baron tion. See United craft, Beechcraft any expenses, the deduction proceeds, after denied, Cir.1982), cert. F.2d 725 sale. 77 L.Ed.2d 461 U.S. (1983). drug commission of” a offense. Congress feiture apply statute to intended to reach all real property only used to an incidental or fortuitous connection promote broad, trade. It is a business, to the but to real estate sweeping grants amendment which wide is “substantially which connected” to il- powers to the executive branch for the legal activity. agree While we purpose combating limited the flow of property must have more than an inciden- illegal drugs. Grafting an implied “sub- tal fortuitous connection to criminal ac- stantial connection” test on plain to the tivity, we decline to read the statute more language of this statute would not avoid leniently than this. ambiguity or the frustration of the Con- The Senate Report cites some of the gressional scheme, promote but them. We *4 egregious examples more created the see penalties no to reason read the of this loophole in the forfeiture By statute. omit- narrowly more plain than the lan- ting real estate 881(a), from Congress §
guage demands. had inadvertently left a range wide of prop-
Indeed,
erty
Born does not
used to
contend that
facilitate commerce
drugs
the addition of this “substantial
connec
outside of its reach. The legislation
itself, however,
necessary
tion” test is
to avoid an absurd
no more demands that the
result or
statutory
property
frustration
of
be “substantially connected” to
Instead,
scheme.
Born
underlying
relies on a section
offense
requires
than it
that
Report
of the Senate
to the
1984 amend
“indispensable”
to the
adding
ment
argu
Yet,
to
his
bolster
crime.
“indispensable”
§
is precisely
Supreme
ment. The
Court
stated that
has
portions
the word used in
of the Senate
statutory language
when
unambiguous,
Report
upon
relied
by Born. Even Born
presumed
express
it is
legislative
concedes that an “indispensability” require-
purpose
legislative
and resort
to the
histo ment would be a misreading of the statute.
ry is not necessary. See American Tobac
use
legislative
selective
of the
Patterson,
Company
co
63, 68,
456 U.S.
history as our controlling guide to the stat-
1534, 1537,
(1982).
indispensable to the commission
aof
held that a “substantial connection” is re
major
prospect
offense
quired
forfeiture
under §
forfeiture
the property would have
Schifferli,
895 F.2d
powerful
been a
deterrent.
(4th Cir.1990);
United States
Santo
225,
ro,
S.Rep. No.
Cong.,
195,
98th
1st Sess.
the offense. any real estate affirm to commit or part manner or used in property’s whether irrelevant is] [It drug related the commission facilitate or integral, essential crime is in the role offense.5 im- term “facilitate” indispensable. only make need plies that to the case standard Applying our “less difficult conduct prohibited to whether hand, inquiry is limited our at ” hinderance.’ from less free ‘more underlying the connection may be use of one Just property was transaction single violation enough, given or fortuitous. incidental than sufficient simple a rather us make facts before Thus, omitted). al- agent (citations with had met Born proposition. Id. adopted Fourth though the familiar and was Mueller test, differ- When connection” cocaine. purchase “substantial in the sale own and our approach telephone his home ences between at called Born than rather largely negotiated to be semantic appear on number sold practical. to be of cocaine quantity price and *5 called Mueller day. employed a next When the has also Eighth Circuit 16, was able to he again on United number test. connection” “substantial Maz transaction arrange the entire as 3639-2nd Premises Known v. States phone that he Cir.1989). the zanti, over (8th who stated 1093 Street, N.E., F.2d 869 evening, Later that acting re- Born. Street, Eight Circuit the was In 3639-2nd denying for- between ruling the transaction court when a district versed stated completed, Mazzanti connec- a substantial was held that Mazzanti feiture as to the “feeling the sale out” Mueller exist between he was did indeed be transactions house. defendant’s of additional possibility the cocaine and histo district Given Mueller. expressly overruled Born and court tween drug continuing court district that the requirement are satisfied ry, court’s we at 1096. Id. ongoing the nexus operation. properly found business if was not drug “we believe offense Instead, holding that house and as a property available persons ‘make or fortuitous. incidental transaction, it is situs for ” III. States (quoting United Id. forfeitable.’ 1005, 1014 F.Supp. Acres, 687 26.075 re- connection” “substantial A add- Judge Arnold (E.D.N.C.1988)). Circuit and the relat- quired between that the ed, concurring opinion, in a es- of real for forfeiture drug offense ed past insistence its “depart from did not Instead, 21 U.S.C. § tate connection must a substantial be that there demonstrate must government and a being forfeited between the incidental or more than nexus is 869 F.2d at crime.” drug related district court fortuitous. existed be- nexus that a sufficient be- found cases, distinction these Given illegal drug and the Born’s house tween test connection” a “substantial tween under 21 justify forfeiture language manner, transaction part” any “in one’s home loss of 881(a)(7). The blurry at U.S.C. directly § in offered of cocaine amount small sale and for principled believe best. We But Con- penalty. a harsh undoubtedly one demanded and approach, direct Sedan, Eldorado ed Cadillac 1974 v. One require States declined circuits have 5. Several Cir.1977). (2nd One circuit un 423 test for forfeiture 548 connection” "substantial impose a “substantial 881(a)(4), provision from which even refused der § has 881(a)(7) language See language is drawn. in the stricter § test under nection” Aircraft, $5,644,540.00 691 Baron 1964 United States Beechcraft denied, (5th Cir.1982), U.S. cert. F.2d 725 F.2d 1357 Currency, 799 U.S. (1983); Unit- L.Ed.2d gress punishment intended this harsh lex,
for those who sell Dura
sed lex. The forfeiture of Born’s one-third Douglas
Road, is, therefore, Elgin, Illinois
Affirmed.
FLAUM, Judge, concurring. judgment
I concur of the Court “in
that Born’s was used part commit facilitate” a
manner or to separately I transaction. write
express my view that while the dictates of minimally
21 U.S.C. were satis- ease,
fied under the facts of there
might application situations where the broadly-written provision eighth
raise amendment Al- concerns.
though the “substantial connection” test
advanced the claimant invites courts to
engraft appealing eq- a somewhat statute, gloss
uitable on the basis supplied by was not
Congress. majority As
noted, any of the statute can congressional be the result of further
action, judicial fiat. Vergeront, Davis,
David J. Walter S. Kuelthau, Milwaukee, Wis., & Davis plaintiffs-appellees. Geline, Milwaukee, Wis., Max E. for de- GRIFFITH, Hurtado,
Cecil Marino Luis fendant-appellant. Franklin, A. Madrid and Luis Oscar Plaintiffs-Appellees, CUMMINGS, Before CUDAHY and MANION, Judges. Circuit CORPORATION, SEALTITE MANION, Judge. Defendant-Appellant. This is an from the district court’s
No. 89-2099. 60(b). denial of relief under Fed.R.Civ.P. Because we find the district court lacked Appeals, United States Court of jurisdiction, matter the action Seventh Circuit. should be dismissed. Argued Feb. 1990. May
Decided I. Corporation
Sealtite contracted to insu- military Republic late facilities in the hired, among Panama in 1983. Sealtite others, Griffith, Hurtado, Cecil Marino Luis