United States District Court, Eastern District of New York
September 18, 1990
UNITED STATES OF AMERICA, PLAINTIFF,
CERTAIN REAL PROPERTY AND PREMISES KNOWN AS 38 WHALERS COVE DRIVE, BABYLON, NEW YORK, DEFENDANT.
The opinion of the court was delivered by: Nickerson, District Judge:
MEMORANDUM AND ORDER
This action arises from an order under 21 U.S.C. § 881(a)(7)
of the Comprehensive Drug Abuse and Control Act of 1970
authorizing seizure of a condominium alleged to have been used
to "facilitate" two cocaine sales. Claimant Edward Levin moves
to dismiss the complaint. The United States cross-moves for
Levin argues that his property was not used to "facilitate"
a drug transaction under § 881(a)(7) and that the forfeiture
would violate his rights under the Eighth Amendment and the
Double Jeopardy and Due Process clauses of the Fifth Amendment
to the United States Constitution.
The critical facts are undisputed.
Levin, the owner of the condominium, was arrested for three
sales of cocaine to undercover agents. On July 6, 1988, a
confidential informant and a Suffolk County police officer,
Joseph Emiddio, went to Levin's home and bought one and one
half grams of cocaine for $150. Levin says that the
confidential informant requested that the sale take place in
the condominium. According to Emiddio, Levin produced a
half-gram packet of cocaine from a bowl in his kitchen
cabinet. The second sale took place on July 20, 1988, also at
Levin's home. Emiddio paid Levin $100 for a plastic vial
containing one gram of cocaine, which Levin produced from the
second floor of the premises. Another sale, not at issue in
this proceeding, took place in Levin's car.
During the next ten weeks Emiddio called Levin several times
per day to arrange further drug transactions, but Levin was
unwilling. Levin also states Emiddio was aware that he had a
minor drug habit, and that the small amounts of drugs Emiddio
saw were clearly for Levin's personal use.
Immediately upon his arrest in October 1988 on charges of
criminal sale of a controlled substance in violation of §
220.39.1 of the New York Penal Law, Levin cooperated with the
Suffolk County Police, acting as intermediary in another
narcotics sale held at the condominium at Emiddio's direction.
A search of the premises disclosed no drugs, weapons, or
other evidence of drug trade. The United States seized the
premises on November 4, 1988. In March 1989, Levin pled guilty
to one count of attempted criminal sale of a controlled
substance in the third degree, pursuant to Section 110.05 of
the New York State Penal Law.
Since the seizure Levin and a friend have continued to
reside at the premises under an "Occupancy Agreement" with the
The statutory provisions relating to drug abuse prevention
and control are contained in 21 U.S.C. § 801-971. Section 853
provides for criminal forfeiture from those convicted under the
statute. Section 881 provides for civil forfeiture, and section
881(a)(7), the subsection at issue here, in pertinent part,
makes "subject to forfeiture to the United States":
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 . . .
Where the government seeks a forfeiture section 881(d),
which incorporates the procedures provided for in 19 U.S.C. § 1615
for customs forfeitures, places upon it the burden to
demonstrate probable cause to believe the property was used, or
intended to be used, to facilitate a drug transaction
punishable under federal law. Then, unless the claimant
introduces evidence that the government has not met factual
predicates for forfeiture, the court may grant summary judgment
for the government. United States v. The Premises and Real
Property at 4492 South Livonia Road, 889 F.2d 1258, 1267 (2d
The sale by Levin of any amount of cocaine was punishable
under section 841(b)(1)(C) by more than one year's
imprisonment. Levin does not deny making the sales but argues
that he did not use his condominium to "facilitate" their
commission within the meaning of section 881(a)(7). He cites
the legislative history, in particular the 1984 Senate
Committee Report, explaining the addition of real property to
the list of items forfeitable. The report states:
Under current law, if a person uses a boat or car
to transport narcotics or uses equipment to
manufacture dangerous drugs, his use of the
property renders it subject to civil forfeiture.
But if he uses a secluded barn to store tons of
marijuana or uses his house as a manufacturing
laboratory for amphetamines, there is no
provision to subject his real property to
civil forfeiture, even though its use was
indispensable to the commission of a major drug
offense and the prospect of the forfeiture of the
property would have been a powerful deterrent.
S.Rep. No. 225, 98th Cong., 1st Sess. 195, reprinted in 1984
U.S.Code Cong. & Admin.News 3182, 3378 (Senate Report).
Levin says that his condominium was far from "indispensable"
to the two minor cocaine sales and that in any event he
committed no "major" drug offense. He contends that before
finding the home forfeitable, the court must find a
"substantial connection" between the use of the property and
the drug sales.
The court has found no decision construing the above passage
from the Senate Report as suggesting that as a condition of
forfeiture the court must find the property "indispensable" to
the drug transaction, see, United States v. Certain Lots in
Virginia Beach, 657 F. Supp. 1062, 1065 (E.D. Va. 1987). Some
courts have read the legislative history to require a finding
of "substantial connection" between the property and the drug
transaction. See id. and United States v. $12,585, 669 F. Supp. 939
(D.Minn. 1987). But the Court of Appeals for this circuit
rejected such a standard and held that there need only be a
"sufficient nexus." See United States v. One 1974 Cadillac
Eldorado, 548 F.2d 421, 423 (2d Cir. 1977); South Livonia Road,
889 F.2d at 1269.
On two occasions claimant produced a controlled substance
for sale from a place in his dwelling. The use of the premises
repeatedly to sell and to safekeep drugs undoubtedly
"facilitated" the ensuing sales according to the common
definition of the term, "to make easier." The Random House
Dictionary of the English Language 840 (1969). Although Levin's
unrefuted affidavit says that one of the sales took place at
his home on the suggestion of the police officer, he makes no
contention that the presence of drugs in his home was momentary
or merely fortuitous. Cf. Certain Lots in Virginia Beach,
supra, 657 F. Supp. at 1065. The court finds a sufficient nexus
between the property and the drugs to conclude that claimant
used his home to "facilitate" their sale.
The court rejects the argument that the statute authorizes
forfeiture of property only when used to facilitate "major"
transactions. The wording of the statute does not so provide.
It allows forfeiture if the property is used to facilitate
commission of even a single felony punishable under Title 21.
As noted above, the sale of any amount of cocaine is such a
felony. The Court of Appeals for this circuit has held that
forfeiture may be predicated on a minute quantity of drugs.
See South Livonia Road, 889 F.2d at 1269-70 and United States
v. One 1986 Mercedes Benz, 846 F.2d 2, 5 (2d Cir. 1988).
The government has shown that there was probable cause to
believe Levin used his condominium to facilitate cocaine
sales. He has not called the government's proof into question.
Forfeiture in this case may produce a harsh result, rendering
homeless a man whom the state court declined to incarcerate.
But that is what section 881(a)(7) contemplated. See South
Livonia Road, 889 F.2d at 1271.
The question remains whether the statute as applied is
Levin invokes several constitutional provisions.
The Double Jeopardy clause of the Fifth Amendment provides
that no person shall "be subject for the same offense to be
twice put in jeopardy of life and limb." The Eighth Amendment
recites, "Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted."
The Fifth Amendment guarantees that no person shall be
"deprived of life, liberty, or property without due process of
Even if forfeiture in this case were to be regarded as a
criminal "punishment," the Double Jeopardy clause does not
It prohibits two criminal punishments for the same offense
only where inflicted by the same sovereign. Heath v. Alabama,
474 U.S. 82, 87-89, 106 S.Ct. 433, 436-38, 88 L.Ed.2d 387
(1985). The United States does not subject a person to double
jeopardy when it seeks a forfeiture predicated on acts already
punished by the state. See United States v. A Parcel of Land
with a Building Located Thereon, 884 F.2d 41, 43 (1st Cir.
1989). Thus, even if a punishment, the forfeiture is not a
punishment for the "same offense" for which the state convicted
The government may seek forfeiture of property associated
with drug transactions in criminal prosecutions, e.g.
21 U.S.C. § 853, or in civil proceedings, e.g. 21 U.S.C. § 881.
Where the proceeding is avowedly criminal, plainly the accused
is entitled to all the procedural protections offered by the
Fifth and Sixth Amendments. He also receives the substantive
benefit of the Eighth Amendment's prohibitions against
excessive bail or fines and cruel and unusual punishments.
Where the proceeding is labelled "civil", the chief question
with which the cases have struggled is to what extent, if at
all, the person whose property is at stake must be given the
procedural and substantive rights accorded a person charged
with crime. Frequently the decisions have turned on whether
the forfeiture is deemed a "punishment".
In a criminal case the defendant may be punished by being
fined or by being required to forfeit property, at least where
the property was obtained through the crime, or was used in
connection with or to facilitate the crime. See, e.g.,
21 U.S.C. § 853 and 18 U.S.C. § 1963(a). The only limitation is
that imposed by the Eighth Amendment's prohibition of
"excessive fines" or "cruel and unusual punishments." Under
that amendment the criminal punishment may not be
"disproportionate to the crime committed." Solem v. Helm,
463 U.S. 277, 284-88, 103 S.Ct. 3001, 3006-08, 77 L.Ed.2d 637
(1983) and cases cited.
Where forfeiture is sought in a proceeding denominated as
civil, the law is not so simple. In rem forfeiture, that is,
forfeiture of the thing, grew from the ancient notion that an
instrument of harm is itself culpable, and must provide
expiation for the injury. See O. Holmes, The Common Law, Ch. 1
(1881) and the oft-quoted passage from Exodus 21:28, "[i]f an
ox gore a man or a woman, and they die, he shall be stoned and
his flesh shall not be eaten." The early English institution of
the deodand, something "given to God," required that the value
of an instrument of death be forfeited to the King, who would
apply it to charitable uses or masses for the victim's soul.
Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 681
n. 16, 682, 94 S.Ct. 2080, 2090 n. 16, 2091, 40 L.Ed.2d 452
(1974). Though the deodand vanished from English law, the
ascription of personality to offending objects persisted into
the modern law of civil forfeiture. See J.W. Goldsmith, Jr. v.
United States, 254 U.S. 505, 510-11, 41 S.Ct. 189, 190-91, 65
L.Ed. 376 (1921).
In the United States, in rem forfeiture was early established
in federal law through navigation and customs acts allowing
seizure of vessels or property used in violation of the law, a
useful expedient in situations where the owner might be
difficult to bring into court. See Note, A Proposal to Reform
Criminal Forfeiture Under RICO and CCE, 97 Harv.L.Rev. 1929,
1933 (1984). The fiction of holding the property, rather than
the owner or crew, responsible for the offense served to assure
indemnity to those injured. Malek Adhel v. United States, 43
U.S. (2 How.) 210, 233-34, 11 L.Ed. 239 (1844); cf. Dobbin's
Distillery v. United States, 96 U.S. 395, 24 L.Ed. 637 (1877)
(forfeiture of distillery operated to defraud the government).
Even in more recent times the Supreme Court recognized that
the harmful nature of a thing or the illegality of the
claimant's possession of it justified its forfeiture as
"contraband". See One 1958 Plymouth Sedan v. Pennsylvania,
380 U.S. 693, 699, 85 S.Ct. 1246, 1250, 14 L.Ed.2d 170 (1965);
cf. United States v. One Assortment of 89 Firearms,
465 U.S. 354, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984) (forfeiture served
to keep "potentially dangerous weapons out of the hands of
The government makes no suggestion that Levin's condominium
was contraband or somehow itself culpable. The court has thus
no need to consider what vestiges of the ancient fiction
remain in the law. See United States v. Tax Lot 1500,
861 F.2d 232, 235 (9th Cir. 1988); United States v. Huber, 603 F.2d 387,
397 (2d Cir. 1979).
The government does contend that the forfeiture cannot
constitute a "punishment" within the meaning of the Eighth
Amendment because this is a "civil" not a "criminal"
proceeding. Such an argument based on the label affixed by the
statute has already been rejected by the Supreme Court.
In Browning-Ferris Industries v. Kelco Disposal, Inc., ___
U.S. ___, 109 S.Ct. 2909, 2913-14, 106 L.Ed.2d 219 (1989), the
Supreme Court concluded that the Eighth Amendment provided no
basis for disturbing a punitive damage award in a civil jury
trial. But the Court took pains to base its decision not on the
proposition that the amendment applies only to criminal
proceedings, but rather on historical evidence that it applies
only where the government, rather than a private party, takes
positive steps to punish an individual. Id., 109 S.Ct. at 2920.
In this case the government seeks forfeiture.
In United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104
L.Ed.2d 487 (1989), the Court held that in a particular case a
"civil penalty" may be "so extreme and so divorced" from any
compensatory or remedial interest of the government as to
constitute punishment for the purpose of double jeopardy.
This was wholly consistent with the court's earlier holding,
that Congress may impose "both a criminal and a civil sanction
in respect to the same act or omission." Helvering v. Mitchell,
303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917 (1938). The
form of the proceeding is not conclusive. If the civil penalty
is sufficiently great and sufficiently unrelated to any
compensatory or remedial interest of the government, it may be
deemed a punishment inflicted chiefly to deter or incapacitate.
See South Livonia Road, supra, 889 F.2d at 1270.
As noted above, the government may seek forfeiture of real
property associated with the commission of a federal narcotics
felony under both civil and criminal statutes, 21 U.S.C. § 881
(1984) and 21 U.S.C. § 853 (1984), respectively. Both
provisions were enacted in the Comprehensive Crime Control Act
of 1984 (the Act), P.L. 98-473, 98 Stat. 1837, and both use
identical language in describing real property subject to
forfeiture as that "which is used, or intended to be used, in
any manner or part, to commit, or to facilitate the commission
of" a narcotics felony. 21 U.S.C. § 853(a)(2) and § 881(a)(7).
The legislative history shows that Congress designed the
criminal provisions to serve as an alternative to civil
forfeiture in all drug felony cases. Senate Report at 193 and
1984 U.S.Code Cong. & Admin.News 3182, 3376. As the purpose of
the legislation was to enhance the utility of both types of
forfeiture for law enforcement, the report distinguishes
criminal and civil actions only in their respective procedural
advantages and disadvantages, Senate Report, at 192-96 and
1984 U.S.Code Cong. & Admin.News 3375-79. One aspect of the
Act's reforms was the importation of certain advantages from
each proceeding into the other's scheme. For example, the Act
brought real property within the scope of civil as well as
criminal forfeiture, and provided a means for preliminary
seizure of assets in criminal as well as in civil proceedings.
No distinction between the purposes of civil and criminal
forfeiture is apparent from the legislative history, which
describes both as weapons of deterrence.
Today, few in the Congress or the law enforcement
community fail to recognize that the traditional
criminal sanctions of fine and imprisonment are
inadequate to deter or punish the enormously
profitable trade in dangerous drugs which, with
its inevitable attendant violence, is plaguing
the country. Clearly, if law enforcement efforts
to combat racketeering and drug trafficking are
to be successful, they must include an attack on
the economic aspects of these crimes. Forfeiture
is the mechanism through which such an attack may
Senate Report at 191 and 1984 U.S.Code Cong. & Admin.News
Both sections provide that the assets seized are to be
applied to defray expenses incurred by the government in drug
law enforcement. 21 U.S.C. § 881(e).
The similarity of function and purpose of § 881 and its
criminal counterpart, § 853, show that both sections share
punitive and remedial goals. The Senate Report describes
forfeiture as "an attack on the economic aspects" of drug
crime, necessary "to deter or punish the enormously profitable
trade in dangerous drugs." Id.
Retribution and deterrence are not legitimate nonpunitive
governmental objectives. Bell v. Wolfish, 441 U.S. 520, 539 n.
20, 99 S.Ct. 1861, 1874 n. 20, 60 L.Ed.2d 447 (1979). On the
other hand, the application of property seized towards the
government's enforcement expenses, see 21 U.S.C. § 881(e), is a
well-recognized remedial purpose. See, One Lot Emerald Cut
Stones v. United States, 409 U.S. 232, 238, 93 S.Ct. 489, 493,
34 L.Ed.2d 438 (1972).
The presence of both punitive and remedial goals does not of
itself convert a civil statute into a criminal measure, or
vice versa. To some degree all civil forfeiture acts as a
deterrent to owners of property, if only to encourage them to
take all reasonable care their property is not put to an
illegal use. See Calero-Toledo v. Pearson Yacht Leasing Co.,
416 U.S. 663, 690-91, 94 S.Ct. 2080, 2095-96, 40 L.Ed.2d 452
(1974). Indeed, the application of ordinary tort law usually
has a deterrent effect.
The material inquiry is not whether civil forfeiture is
punitive in purpose and effect. It usually is. The question is
whether the forfeiture serves some alternate purpose as well,
and whether the penalty inflicted is excessive in relation to
that alternative purpose. See Kennedy v. Mendoza-Martinez,
372 U.S. 144, 168-69, 83 S.Ct. 554, 567-68, 9 L.Ed.2d 644 (1963).
The interest protected by the Eighth Amendment prohibiting
"excessive" punishment is similar to that protected by the due
process clause of the Fifth Amendment. Due process "protect[s]
. . . the individual against arbitrary action[s] of
government," Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct.
662, 665, 88 L.Ed.2d 662 (1986) (citation omitted), including
the imposition of civil penalties so "grossly excessive" as to
be oppressive. Waters-Pierce Oil Co. v. Texas, 212 U.S. 86, 29
S.Ct. 220, 53 L.Ed. 417 (1909). The government may not
prescribe a penalty "wholly disproportioned to the offense and
obviously unreasonable." Saint Louis, I.M. & S. Railway Co. v.
Williams, 251 U.S. 63, 67, 40 S.Ct. 71, 73, 64 L.Ed. 139
(1919). Even where a penalty may serve both compensatory and
punitive ends, the government may "no more assess excessive
damages than . . . impose excessive fines." Standard Oil Co. v.
Missouri, 224 U.S. 270, 286, 32 S.Ct. 406, 411, 56 L.Ed. 760
Where an owner has done all that can reasonably be expected
to prevent the proscribed use of the property, a civil
forfeiture "would simply be an arbitrary act, serving no
legitimate government interest, oppressive and harsh, and in
our view contrary to the Fifth Amendment." United States v. One
Tintoretto Painting, 691 F.2d 603, 608 (2d Cir. 1982) citing
Calero-Toledo v. Pearson Yacht Leasing Company, 416 U.S. 663,
689-90, 94 S.Ct. 2080, 2094-95, 40 L.Ed.2d 452 (1974).
Similarly, where an owner negligently or wilfully permits
property to be used in violation of the criminal law, due
process requires that a civil penalty bear some reasonable
relation to the purpose of compensating the government for its
efforts in attempting to discover the violations, to prosecute
the violators, and to avert or mitigate the consequent harms.
In Halper, statutory penalties for 65 violations of the False
Claims Act, amounting to over $130,000, were sufficiently
unrelated to the government's losses of $585
from Medicare overcharges and approximately $16,000 in costs
for investigating and prosecuting the offender as to
constitute a criminal penalty. 490 U.S. 435, 109 S.Ct. 1892,
104 L.Ed.2d 487 (1989). Double jeopardy prohibited the
government from imposing first a criminal punishment and then
a civil penalty for the same conduct where the civil judgment
is not "rationally related to the goal of making the
Government whole." Id. 109 S.Ct. at 1903.
The court must thus consider whether forfeiture pursuant to
a civil statute and civil procedure is rationally related to
a remedial goal. Where a civil forfeiture "would be
unreasonable and not remotely related to both the actual
losses and inexplicable damages incurred by the government,"
the court should decline to enforce it. Peterson v. Richardson,
370 F. Supp. 1259, 1267 (N.D.Tex. 1973) aff'd sub nom. Peterson
v. Weinberger, 508 F.2d 45 (5th Cir.), cert. denied sub nom.
Peterson v. Mathews, 423 U.S. 830, 96 S.Ct. 50, 46 L.Ed.2d 47
(1975) (reducing applicable penalty under the False Claims
No clear line divides punitive from remedial purposes.
See generally Clark, Civil and Criminal Penalties and
Forfeitures, 60 Minn.L.Rev. 379 (1976). Some decisions have
described § 881 as having the "remedial" purpose to diminish
the economic power of drug traffickers and deprive them of the
instrumentalities useful in their trade. See United States v.
$2,500 in United States Currency, 689 F.2d 10, 13-14 (2d Cir.
1982); United States v. 6109 Grubb Road, 708 F. Supp. 698
The distinction between incapacitation and deterrence is
particularly elusive. See Clark, supra, at 475-481. In the case
of contraband, where possession of the property is unlawful,
the government's seizure removes it from circulation for the
public good, as in the seizure of controlled substances under
21 U.S.C. § 881(a)(1).
However, there is nothing inherently unlawful about
possessing a condominium. A forfeiture in the present case may
incapacitate the owner who permits the illegal use, but hardly
rids society of a noxious instrumentality. Incapacitation
could also be accomplished by criminal measures, avowedly
punitive, such as imposing heavy fines, or constraining the
person's liberty by imprisonment. See One 1958 Plymouth Sedan,
380 U.S. 693, 699, 85 S.Ct. 1246, 1250, 14 L.Ed.2d 170 (1965).
It was just such a practice of economically disabling those
whom the Stuarts considered dangerous that led to the
incorporation in the English Constitution of the precursor to
the excessive fines clause of our Eighth Amendment.
Browning-Ferris Industries, 109 S.Ct. at 2916.
The aim of compensating the government for its efforts to
prevent or mitigate the harms caused by the property's
unlawful use is a remedial goal. That harm consists not only
of the illicit profits from the actual drug sale, but the
severe collateral consequences of facilitating drug traffic,
such as drug addiction, increased drug-related violence, and
the government's enforcement costs. All these are ills the
drug laws were designed to address. See § 101 of the
Comprehensive Drug Abuse and Control Act of 1970, codified at
21 U.S.C. § 801(2) and H.Rep. No. 91-1444, 91st Cong., 2d Sess.
(1970), reprinted in 1970 U.S.Code Cong. & Admin.News 4566,
4573; S.Rep. No. 225, 98th Cong., 1st Sess. 191, reprinted in
1984 U.S.Code Cong. & Admin.News 3374; and United States v.
$2,500 in United States Currency, supra, at 13 n. 2.
While the entire magnitude of the national drug problem
cannot be laid at the feet of any one drug offender, cf. United
States v. A Parcel of Land with a Building Located Thereon,
884 F.2d 41, 44 (1st Cir. 1989), the government is entitled to
compensation because of the injury inflicted by Levin's
conduct. The Supreme Court has recognized that assessing
damages is not an exact pursuit, and involves an element of
"rough justice." Halper, 109 S.Ct. at 1902.
An imprecise formula, such as double damages, may pass
muster under constitutional scrutiny. See id. at 1900; Missouri
Pacific Railway Co. v. Humes, 115 U.S. 512, 522-23, 6 S.Ct.
110, 113-14, 29 L.Ed.
463 (1885). However, forfeiture is a penalty without clear
limits. The value of the property is not inevitably related to
the harmfulness of the use to which it is put. See United
States v. Busher, 817 F.2d 1409, 1414 (9th Cir. 1987)
(forfeiture under 18 U.S.C. § 1963(a)) and South Livonia Road,
889 F.2d at 1270.
Here, Levin used his home more than once to conduct drug
transactions. Although perhaps trivial in their dollar amount,
these sales are quite serious in their collateral
consequences. The maintenance of the programs to deal with
drug problems is expensive. Moreover, there were immediate
costs to the costs of the federal government in bringing this
proceeding, and to Suffolk County for its law enforcement
efforts, which may be compensated from the proceeds of any
forfeiture. See 21 U.S.C. § 881(e)(1)(A) and
19 U.S.C. § 1616(a)(2).
Forfeiture of Levin's approximately $70,000 interest in the
condominium does not seem a grossly excessive amount for his
share of the costs of remedying the ills occasioned by drugs.
Though there may be cases where further elaboration of the
government's loss would be warranted, this is not a forfeiture
that stands near the line between remedy and punishment.
See South Livonia Road, 889 F.2d at 1270.
Forfeiture in this case is a civil penalty that offends
neither due process nor the Eighth Amendment.
The court finds the government has established, and Levin
has failed to rebut, that his condominium is subject to
forfeiture under 21 U.S.C. § 881(a)(7). The forfeiture does not
offend the Constitution. The government's motion for summary
judgment is granted, and claimant's motion to dismiss is
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