summary judgment by Rule 56(e), may be used to establish
probable cause in the context of forfeiture proceedings.
See 15 Black Ledge Drive, 897 F.2d at 101.
For these reasons, I find that probable cause exists to
believe that the premises were used to grow marijuana in
violation of 21 U.S.C. § 881(a).
B. Unlawful Use
Claimant argues that he did not "manufacture" marijuana on
the premises within the meaning of the statute, for he grew the
plants solely for his own medicinal use, rather than with the
intent to distribute it for commercial gain. He cites
legislative history purporting to evince Congress' intent, in
passing the forfeiture statute, solely to combat commercial
drug trafficking. On the basis of this material, Saurini argues
that the forfeiture statute is inapplicable to his use of the
It is by now well established that the proscription of the
"manufacture" of controlled substances contained in § 841
criminalizes the growing of marijuana. See United States v.
Miller, 870 F.2d 1067, 1071 (6th Cir. 1989); United States v.
Klein, 850 F.2d 404, 405 (8th Cir. 1988), cert. denied,
488 U.S. 867, 109 S.Ct. 173, 102 L.Ed.2d 143 (1989). It has also
been held that in order to prove a "manufacturing" violation of
§ 841, the Government need not show that the drug was grown
with the intent to commercially distribute it; proof of
cultivation for personal use will suffice. See Miller, 870 F.2d
at 1071, citing United States v. Roberts, 747 F.2d 537, 547
(9th Cir. 1984); Klein, 850 F.2d at 405.
Congress clearly distinguishes between mere possession of
marijuana for personal use and its actual manufacture, or
cultivation, for that purpose. Title 21 U.S.C. § 844 makes
simple possession for personal consumption a misdemeanor, while
§ 841 classifies manufacture, for whatever purpose, as a
felony. I therefore find it to have been Congress' intent in
enacting § 881(a)(7) that the use to which Saurini put his
property would subject it to forfeiture under that provision.
Cf. United States v. Anderson, 637 F. Supp. 632, 634-35
(N.D.Cal. 1986) (applying criminal forfeiture provision of
21 U.S.C. § 853(a) to cultivation of marijuana for personal use).
For these reasons, I find that Saurini has not shown the
existence of any issue of material fact regarding his unlawful
use of the property.
In assessing whether the Eighth Amendment applies to a
statute, courts routinely employ a two step analysis. The court
must look first to the Congressional purpose, and if that
purpose is found to have been civil in nature, it next must be
decided whether the purpose or effect of the statute is so
punitive so as to "negate a civil objective." United States v.
One 107.9 Acre Parcel of Land Located in Warren Twp., Bradford
Co., PA, 898 F.2d 396 (3d Cir. 1990). Under this analysis, it
has uniformly been held that the forfeiture statute does not
violate the Eighth Amendment because the enactment is civil in
nature. See, e.g., One 107.9 Acre Parcel of Land, 898 F.2d at
400-01; United States v. Santoro, 866 F.2d 1538 (4th Cir.
Independent of an Eighth Amendment analysis, courts
consistently have found that the statute contemplates no
proportionality standard; that is, the slightest infraction
punishable by more than a year's imprisonment, even if
committed on a limited portion of the realty, will justify
forfeiture of the entire tract. See, e.g., One 107.9 Acre
Parcel of Land, 898 F.2d at 400; United States v. Reynolds,
856 F.2d 675 (4th Cir. 1988).
Section 881(a)(7) subjects to forfeiture:
All real property, including any right, title, and
interest . . . in the whole of any lot or tract of
land and any appurtenances or improvements, which
is used, or intended to be used, in any manner or
part, to commit, or to facilitate the commission
of, a violation of this title punishable by more
than one year's imprisonment. (emphasis added)
Given the breadth of this language, it comes as no surprise
that courts uniformly