that more drugs were involved at the defendant location than the court calculated in its April 24, 1993 decision.
To use the proffered information as evidence of the amount of drugs involved at the defendant property would render the Whalers Cove decision an exercise in futility. No Eighth Amendment protection would ever attach if the government is permitted to support its position through mere innuendo. The practical effect would be to denigrate the fact-finding determination of Whalers Cove into a mud-slinging contest -- a result that this court is sure the Circuit did not intend.
For these reasons, the court finds no merit to the government's first argument. Consequently, the government's motion for a vacatur of the prior decision on this ground is denied. The court will grant the government's motion to supplement the record for purposes of appeal.
B. Application of Austin v. United States
Second, the government argues that under the concurring opinion of Justice Scalia in Austin v. United States, 113 S. Ct. 2801, 125 L. Ed. 2d 488, 1993 U.S. LEXIS 4407 (June 1993), the proper inquiry when applying the Eighth Amendment to a civil forfeiture is not a comparison of the relative value of the defendant property to the drugs sold, but rather a determination of the degree of relationship between the two. Under this test, the government asserts, the instant forfeiture would not violate the claimant's constitutional right secured by the Eighth Amendment.
The court need not reach this issue nor comment on Justice Scalia's concurring opinion. The majority opinion in Austin clearly and unequivocally stated that it was for the circuit courts to fashion appropriate tests to determine whether a forfeiture is constitutionally excessive ( Austin, supra, at *38) and in this Circuit Whalers Cove controls. Reconsideration on this ground is denied.
Third, the government argues that under the Whalers Cove analysis, a question remains as to whether the defendant property was used substantially for illegal purposes. In this regard, the government argues that the defendant property was an instrumentality of the underlying drug transaction and therefore Eighth Amendment protection should not apply. The court again disagrees.
The parties have already discussed and the court has already determined the substantiality issue and found in favor of the claimant. See Real Property: 835 Seventh Street, 820 F. Supp. at 691. The case cited by the government, United States v. Cullen, 979 F.2d 992 (4th Cir. 1992), does not change that determination and therefore reconsideration on this ground is denied.
D. Mitigation or Remission
Finally, the government contends that the court should have considered the option of mitigation or remission in regard to the court's decision to deny forfeiture. While it is true that the court determined that the forfeiture decision was an all or nothing proposition (see Real Property: 835 Seventh Street, 820 F. Supp. at 696-97), the cases cited by the government in support of its remission or mitigation argument are unpersuasive. These dealt with criminal forfeiture under 18 U.S.C. § 1963, a statute which serves as punishment in in personam actions against individual criminal defendants. See United States v. Sarbello, 985 F.2d 716 (3rd Cir. 1993); United States v. Busher, 817 F.2d 1409 (9th Cir. 1987); United States v. Huber, 603 F.2d 387 (2d Cir. 1979). As evidenced by the careful opinions in Austin, the doctrinal underpinnings of civil forfeiture, especially statutory in rem forfeiture, have developed separate and apart from those underlying the various forms of criminal punishments which include criminal in personam forfeitures. Whether these doctrinal underpinnings have now converged into a single jurisprudence of "forfeiture" indistinguishable by their criminal or civil nature is a question left completely unanswered by controlling authority. No court has gone so far as to allow a wholesale transportation of the theories of one jurisprudence into the arena of the other.
Further, the superimposition of legal fiction upon legal fiction in the area of statutory in rem jurisprudence leaves a landscape of kaleidoscopic dimension. Where on one hand the defendant property, an inanimate object, is deemed to have offended society thus requiring its forfeiture (legal fiction #1), the claimant, a third party to the action who has not been adjudicated culpable of a forfeitable crime under 21 U.S.C. § 881(a)(7), is able to assert his Eighth Amendment right, a right historically protecting criminal defendants against excessive fines and punishments, to prevent the effect that the removal will have upon him if forfeiture is allowed (legal fiction #2). Now, the government asks this court to find, in essence, that while complete forfeiture of the guilty property (legal fiction #1) violates the Eighth Amendment right of an innocent third party (legal fiction #2), limited forfeiture does not offend the Constitutional rights of the third-person and therefore should be allowed (legal fiction #3). While #3 follows logically from #2, it stands in complete contradiction to #1. To allow mitigation or remission through the sale of the property wherein the government receives that portion of the proceeds which does not offend the third party's constitutional rights and the claimant receives the remainder pushes legal fiction #2 to its logical extreme but simultaneously ameliorates legal fiction #1. If the basic legal premise is that the guilty object must be removed for its offense, it contradicts reason to argue that this goal can be accomplished by selling the property and giving a portion to the government and the remainder to the claimant. Rather, this sounds of a criminal penalty for the claimant's wrongs as is the case under 18 U.S.C. § 1963. Until such time as the Second Circuit, the Supreme Court, or Congress applies the principals of mitigation and remission as recognized in criminal forfeitures under 18 U.S.C. § 1963 to civil forfeitures under 21 U.S.C. § 881(a)(7), this court is not prepared to go that far. Therefore, the court declines to grant remission or mitigation and the government's motion in this regard is denied.
As a closing issue, the court notes that claimant has presented another procedural obstacle to final resolution of this case. On July 20, 1993 this court received a one-and-a-half page Memorandum of Law in Opposition to the government's Supplemental Motion for Reconsideration and a one page Affidavit from claimant's attorney. The attorney's affidavit states, inter alia:
In or around May, 1993, your Affiant spoke to attorney Joseph LaCarte, attorney for the City of Rensselaer. At that time, Mr. LaCarte advised your Affiant that an in rem tax proceeding had been commenced against the Defendant property in February, 1992. According to Mr. LaCarte, a Court Order and Judgment executed by the Hon. M. Andrew Dwyer, Jr., Rensselaer County Court Judge, in April, 1993, conveyed title to the Defendant property from Claimant Richard Habiniak to the City of Rensselaer. Therefore, at this point in time, the instant proceeding is moot.
Affidavit of Hollie E. Bethmann, 7/19/93.
While it ostensibly appears that claimant has abandoned his claim in the defendant property,
the government contends that a right of redemption exists and that this right is exercisable by either the claimant or the government. On this ground, the government contends that the matter is not moot and that a legally cognizable case or controversy continues to exist before the court. The court is inclined to agree with the government.
Until such time as the defendant property is sold at a foreclosure sale, the claimant or the government (provided the government succeeds with forfeiture) can exercise a right of redemption in the defendant property. Therefore, the matter is not moot and dismissal is not warranted. However, a question remains as to whether the claimant has abandoned his claim in the defendant property. The representation of counsel, in this instance, will not be taken at face value and instead the court will hold a conference with the parties to address this issue.
For the reasons discussed herein, it is hereby
ORDERED that the government's motion for reconsideration is granted in part and denied in part; and it is further
ORDERED that the relief sought by the government in its partially granted motion for reconsideration is denied in all respects except that the government's motion to supplement the record is granted; and it is further
ORDERED that a conference is to be held with the court on Wednesday, September 8th, 1993 at 12:30 p.m. at the United States Court House, Albany, New York. Attorneys for the government and the claimant, as well as the claimant himself, shall be present.
IT IS SO ORDERED.
Dated at Binghamton, New York
August 21, 1993
Thomas J. McAvoy
Chief U.S. District Judge