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April 24, 1993

Real Property: 835 Seventh Street Rensselaer, Rensselaer County, New York, Defendant.

The opinion of the court was delivered by: THOMAS J. MCAVOY


 Presently before the court is plaintiff's motion for summary judgment (Fed.R.Civ.P.56) in the instant real property forfeiture action brought pursuant to the Comprehensive Drug Abuse Prevention and Control Act of 1970, § 511(a)(7), 21 U.S.C. § 881(a)(7). In opposition, claimant Richard Habiniak argues that the action is barred by both the Eighth Amendment's Cruel and Unusual Punishment Clause and the Fifth Amendment's Double Jeopardy Clause. Despite suggestions by the court, the claimant has failed to raise these defenses in the form of a cross-motion for summary judgment. However, because the issue is potentially dispositive of the instant action, the court treats claimant's Eighth Amendment defense as a cross-motion for summary judgment *fn1" and grants judgment for the claimant. For obvious reasons the court does not reach claimant's Fifth Amendment challenge.


 On May 23, 1989, a confidential informant working for the Rensselaer Police Department made a "controlled buy" of 6.82 grams of marijuana from claimant Richard Habiniak while on the premises of the defendant property. Verified Complaint ("Compl.") P 5(a) and attached affidavits. Habiniak thereafter was arrested on August 29, 1989 pursuant to an arrest warrant and a consensual search of the defendant premises was conducted. Id. The search uncovered approximately six (6) ounces of marijuana packaged for sale, plastic baggies, a scale, and approximately $ 415 in United States currency. Compl. P 5(b).

 Habiniak was charged with Criminal Sale of Marijuana in the Fourth Degree (N.Y. Penal Law § 221.40), Criminal Possession of Marijuana in the Fourth Degree (N.Y.Penal Law § 221.15), and Criminally Using Drug Paraphernalia in the Second Degree (N.Y.Penal Law § 220.50(2)), all Class "A" misdemeanors. Claimant's 11/2/92 Memorandum, p.1. Thereafter, claimant pled guilty to the single charge of Criminal Possession of Marijuana in the Fourth Degree, also a Class "A" misdemeanor. Id. He was sentenced on January 10, 1990 in Rensselaer City Court to three (3) years probation and fined One Thousand ($ 1,000.00) dollars together with a Sixty-Two ($ 62.00) Dollar surcharge. Id. at p. 2. All other charges against the claimant were dismissed. Id.

 The instant action was commenced by verified complaint on September 5, 1991 wherein the plaintiff United States seeks to forfeit the defendant property pursuant to the Comprehensive Drug Abuse Prevention and Control Act of 1970, § 511(a)(7). 21 U.S.C. § 881(a)(7). Initially representing himself pro se and then retaining former and present counsel, Mr. Habiniak and members of his immediate family have made commendable efforts to prevent the forfeiture of the defendant property. Without elaboration, suffice it to say that Mr. Habiniak has been diligent in his efforts to protect the property which, this court has found, serves the primary function of housing the Habiniak family. See Bench Decision, 10/13/92 motion calendar. This defense has manifested itself in a number of motions to dismiss made by claimant either through himself or his various attorneys, a suppression hearing, and the instant motion. Now, in response to the government's motion for summary judgment of forfeiture, the court reviews the constitutional defenses enumerated above in the context of the Second Circuit's most recent pronouncement in this area - United States v. Certain Real Property and Premises Known as 38 Whalers Cove Drive, 954 F.2d 29 (2d Cir. 1992), cert. denied sub nom., Levin v. United States, 121 L. Ed. 2d 24, 113 S. Ct. 55, 61 U.S.L.W. 3256 (Oct. 5, 1992) ("Whalers Cove").


 A. Eighth Amendment-General Application

 In Whalers Cove, the Second Circuit explored the application of the Eighth Amendment's Cruel and Unusual Punishment Clause to civil forfeitures. See generally, Whalers Cove, 954 F.2d 29. In doing so, the court relied on United States v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989) for the proposition that civil sanctions imposed following a criminal sentence could, if found to be "overwhelmingly disproportionate to the goal of compensating the government," constitute punishment within the meaning of the Constitution. Id., at 34 citing Halper, 490 U.S. at 442, 109 S. Ct. at 1898.

 Although somewhat attenuated to civil forfeitures, the Supreme Court's pronouncement in Halper applies in the following manner. In Halper, the Court applied a "rule of reason" to a civil sanction (imposed under a Medicaid fraud statute) to determine whether it rationally related to the goal of compensating the government. Id. Finding that it did not, the Court presumed the sanction to be punitive. It then shifted the burden to the government to prove otherwise through an "accounting of [its] damages and costs." Id. The Whalers Cove case notes:

The [Supreme] Court cautioned, however, that the burden of accounting for a civil sanction would fall on the government only in the "extreme case", and that leeway was to be given the government's attempt to achieve "rough remedial justice," particularly in view of quantifying the "precise amount of the Government's damages and costs."


 However, the Second Circuit went on to note that where an accounting is appropriate (i.e. extreme cases as determined under a rule of reason analysis):

Halper requires a district court to compare the government's proven damages and costs against the sanction the government seeks to impose. Following an accounting, a sanction must be classified as punitive when the size of the sanction can not fairly be attributed to remedial purposes, "but rather can only be explained as also serving either retributive or deterrent purposes." 490 U.S. at 448, 109 S. Ct. at 1902 (emphasis added). The amount in excess must be deemed punishment.

 Whalers Cove, 954 F.2d at 35.

 Thus, a civil sanction is justified as long as it accomplishes the remedial purpose for which it was instituted. Under the Medicaid fraud statute, the purpose was to compensate the government for lost revenue and enforcement costs incurred in retrieving the lost dollars. Where the assessed penalty exceeds the remedial purpose of the statute, the amount in excess of the remedial purposes must be deemed punitive. In turn, any civil sanction that in effect is punishment invokes the protection of the Eighth Amendment which is a "personal" and "humane" limitation on the government's ability to punish an individual. Whalers Cove, 954 F.2d at 35. Once the Eighth Amendment attaches, that is, once a portion of the civil sanction is deemed punitive, a separate analysis must be undertaken to determine whether the punitive punishment is repugnant under the Cruel and Unusual punishment Clause.

 The reasoning of Halper was then applied to civil forfeitures. In so doing, the Whalers Cove court articulated a number of "legitimate civil purposes" for civil forfeitures - namely: "removing instrumentalities of crime from general circulation and preventing further illicit use of harmful objects"; "impeding the success of the criminal enterprise by eliminating its resources and instrumentalities"; and "compensating the government's investigation and enforcement expenditures." Whalers Cove, 954 F.2d at 35-36 (citations omitted). From these articulated "purposes" the court was able to align Halper with civil forfeiture and apply its reasoning thereto. The Whalers Cove court concluded that where the "purpose" of the civil sanction under civil forfeiture statute does ...

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