                     United States Court of Appeals

                         FOR THE EIGHTH CIRCUIT




                             ___________

                             No. 95-3158
                             ___________

United States of America,          *
                                   *
     Appellee,                     *
                                   *
     v.                            *   Appeal from the United States
                                   *   District Court for the District
One 1970 36.9' Columbia            *   of Minnesota.
Sailing Boat, Known as the         *
"Delphene", License No.            *
CF8540EN, I.D. No. 696168          *
With All Appurtenances             *
Thereto.                           *
                                   *
     Defendant.                    *
     _______________

John Walter Piner,                 *
                                   *
     Appellant.                    *


                             ___________

                       Submitted: May 14, 1996

                        Filed: July 19, 1996
                             ___________

Before RICHARD S. ARNOLD, Chief Judge, MAGILL, Circuit Judge, and
    VAN SICKLE,* Senior District Judge

                             ___________

VAN SICKLE, Senior District Judge.



     *
      The HONORABLE BRUCE M. VAN SICKLE, Senior United States
     District Judge for the District of North Dakota,
     sitting by designation.
      John Walter Piner, the Claimant, appeals the decision of the
district court1 granting the United States' motion for forfeiture
of a boat formerly owned by Piner, a 1970 36.91 Columbia Sailing
Boat, known as the "Delphene."           We affirm.


I.   BACKGROUND
     Carl Thompsen and Ronald Scoggins planned to import marijuana
from Colombia.     They met the Claimant, who informed the pair that
the marijuana could be transported in his boat, the Delphene.                For
carrying the contraband, Piner was to receive 1,000 pounds of
marijuana    as   payment.        The    street   value   of   the   drugs   was
approximately $600,000.      On or about July 16, 1989, approximately
4,500 pounds of marijuana were transferred from the Delphene to the
shore near Santa Barbara, California.
      On March 7, 1994, the Claimant, Thompsen, and Scoggins were
arrested    and   indicted   on    two    counts.      Count   I   charged   the
defendants with conspiracy to distribute and possess with intent to
distribute cocaine and marijuana, in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(A)(ii)(II), 841(b)(1)(A)(vii), and 846.             Count
II charged the men with conspiracy to import into the United States
from a place outside the United States approximately 4,500 pounds
of marijuana in violation of 21 U.S.C. §§ 942, 960(b)(1), and 846.
     At the time of the Claimant's arrest, the Delphene was docked
in Fajardo, Puerto Rico and registered in the Claimant's name.                On
August 7, 1994, the United States Attorney for the District of
Minnesota filed a Complaint for Forfeiture of the Delphene under 21
U.S.C. § 881(a)(4). The Claimant filed a claim to the boat and an
answer to the government's complaint.               On February 5, 1995, the
Claimant was acquitted on Count I, but found guilty on Count II.
     On July 31, 1995, the district court granted the government's
motion and authorized the forfeiture of the Delphene.              The district


      1
      The Honorable Richard H. Kyle, United States District Judge
for the District of Minnesota.

                                        -2-
court held that the Claimant had not satisfied the "same-elements"
test enunciated in Blockburger v. United States, 284 U.S. 299




                               -3-
(1932) and,     therefore,      there   was    no   violation     of   the    Double
Jeopardy Clause      of   the   Fifth    Amendment     of   the   United      States
Constitution.      The district court reasoned that the conspiracy
charge and the forfeiture did not invoke double jeopardy when used
against the same Claimant because
      "for a § 881(a)(4) forfeiture, the government need not prove
      the existence of an agreement or that a Claimant was a knowing
      participant in that agreement; for a conviction on the
      conspiracies alleged in the indictment, the government need
      not prove the existence of a conveyance which facilitated drug
      transactions."

      The district court also held that the seizure of the vessel
was not an excessive fine under the Eighth Amendment and Austin v.
United States, 509 U.S. 602 (1993).            The Delphene was appraised at
$50,000; the claimant was to receive $600,000 in marijuana on
delivery of the marijuana to California.              Furthermore, the total
value of the drugs that were present on the Defendant was $2.7
million dollars.     Therefore, the district court believed, the fine
could not be seen as excessive.


II.   DISCUSSION
      A. Double Jeopardy
      The Double Jeopardy Clause of the Fifth Amendment protects
against   multiple    prosecutions       for    the   same    offense        and   is
applicable to the states through the Fourteenth Amendment.                     North
Carolina v. Pearce, 395 U.S. 711, 717 (1969). See U. S. Const.
amend. V ("[N]or shall any person be subject for the same offence
to be twice put in jeopardy of life or limb.").              The Supreme Court
declared in Blockburger that:
      "where the same act or transaction constitutes a violation of
      two distinct statutory provisions, the test to be applied to
      determine whether there are two offenses or only one is
      whether each provision requires proof of an additional fact
      which the other does not." Blockburger, 284 U.S. at 304.

      Until recently, it was unclear whether a criminal defendant
was subject to double jeopardy when the government attempted civil

                                        -4-
forfeiture of property connected to the alleged crime under the




                               -5-
authority of 21 U.S.C. § 881.          Compare United States v. Smith, 75
F.3d    382   (8th    Cir.   1996)     (no    double     jeopardy      problem    in
government's use of § 881(a)(7) if civil forfeiture and criminal
proceedings are coordinated); United States v. $184,505.01, 72 F.3d
1160 (3rd Cir. 1995) (double jeopardy not raised when government
attempted forfeiture of property under § 881(a)(6) which deals with
the proceeds from drug sales); United States v. Salinas, 65 F.3d
551 (6th Cir. 1995) (same); United States v. Tilley, 18 F.3d 295
(5th Cir.), cert, denied, 115 S.Ct. 574 (1994) (same); United
States v. Price, 914 F.2d 1507, 1512-13 (D.C. Cir. 1990) (same)
with United States v. Ursery, 59 F.3d 568 (6th Cir. 1995), rev'd,
1996 WL 340815 (U.S. Jun 24, 1996) (§ 881(a)(6)); United States v.
One 1978 Piper Cherokee Aircraft, Tail No. N 5538V, Including its
Tools and Appurtenances, 37 F.3d 489 (9th Cir. 1994) (double
jeopardy      bars    forfeiture     under    §   881(a)(4)      involving       the
conveyances such as aircraft or boats that are allegedly used to
carry   illegal      narcotics);     United   States     v.   $405,089.23        U.S.
Currency, 33 F.3d 1210 (9th Cir. 1994), amended on denial of reh'g,
56 F.3d 41 (9th Cir. 1995), rev'd, United States v. Ursery, 1996 WL
340815 (U.S. Jun. 24, 1996) (§ 881(a)(6)). The Supreme Court
greatly clarified this area of the law with its decision in United
States v. Ursery, 1996 WL 340815 (U.S. Jun. 24, 1996).
       In   Ursery,    the   Supreme    Court     held   that    "in    rem   civil
forfeiture is a remedial civil sanction, distinct from potentially
punitive in personam civil penalties such as fines, and does not
constitute a punishment under the Double Jeopardy Clause." Id. at
*8 (citation omitted).        The Court employed a two-step analysis in
determining that double jeopardy did not apply in cases where the
government attempted to acquire the property of criminal defendants
by forfeiture under § 881(a)(6) or § 881(a)(7).                 First, the Court
asked whether Congress intended proceedings under § 21 U.S.C. 881
to be civil or criminal.       Id. at 14.       Second, the Court considered
"whether the proceedings are so punitive in fact as to persuade
[the Court] that the forfeiture proceeding[s] may not legitimately

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be viewed as civil in nature,' despite Congress' intent." Id.




                               -7-
(citing United States v. One Assortment of 89 Firearms, 465 U.S.
354, 366 (1984)).
     The Supreme Court's determination that "civil forfeiture does
not constitute punishment for the purpose of the Double Jeopardy
Clause", id. at *13, would appear to apply to all sections of §
881(a), not merely §§ 881(a)(6) and § 881(a)(7), the sections which
were directly involved in Ursery.    In the discussion of the first
step of its two-step analysis, the Court refers only to § 881 in
general, and not to any specific section, in its determination that
§ 881 forfeiture is strictly a civil proceeding. Id. at *14.
However, the Court in its second stage of analysis, on the issue of
whether these particular civil proceedings were so punitive as to
be criminal proceedings in reality, focussed more specifically on
§ 881(a)(6) and (7). Id. at *15.
    The Court stated that § 881(a)(6) and (7) were not so punitive
as to become criminal proceedings because these sections "serve
important nonpunitive goals." Id.     The primary nonpunitive goal
exists because "requiring the forfeiture of property used to commit
federal narcotics violations encourages property owners to take
care in managing their property and ensures that they will not
permit that property to be used for illegal purposes." Id.
     We hold that the Court's reasoning in Ursery as to its
determination that civil forfeiture under § 881(a)(6) and (7)
cannot constitute double jeopardy applies to § 881(a)(4), the
pertinent section in the case before this court.2   The nonpunitive

     2
      21 U.S.C. § 881(a):
          "The following shall be subject to forfeiture to
          the United States and no property right shall
          exist in them:

               (4) All conveyances including aircraft,
          vehicles, or vessels, which are used, or are
          intended for use, to transport, or in any manner
          to facilitate the transportation, sale, receipt,
          possession, or concealment of [controlled
          substances] . . .


                               -8-
goal of encouraging property owners to refrain from trafficking in
illegal substances is met by this section of the statute which
allows the forfeiture of an aircraft, vehicle, or, as in the case
before this court, a vessel, that is involved in the transportation
of a controlled substance. See 21 U.S.C. § 881(a)(4). A boat owner
presumably would not want to allow his vessel to be used in drug
trafficking because he knew that the vessel could be forfeited if
law enforcement discovered his scheme.
         In addition, the connection between § 881(a)(4) and (7) is
quite strong.     Both sections allow the forfeiture of property that
is used in connection with drug trafficking, unlike § 881(a)(6)
which deals only with property acquired by the proceeds from drug
sales.3     The Supreme Court did not distinguish between the two
sections when it determined that these types of forfeiture can be
considered "punishment" subject to Excessive Fines Clause analysis.
Austin,    509   U.S.   at   619-21.    Furthermore,   other   courts   have
reasoned that the double jeopardy analysis is the same for §§
881(a)(4) and (7), as opposed to an inquiry regarding § 881(a)(6).
See Smith v. United States, 76 F.3d 879, 882 (7th Cir. 1996) United



               (6) All moneys, negotiable instruments,
          securities, or other things of value furnished or
intended to be furnished by any person in exchange for a
controlled substance . . .

                  (7) All real property. . . 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
             subchapter punishable by more than one year's
             imprisonment. . ."
     3
      The Ursery Court's decision to deny the double jeopardy
defense to a criminal defendant subject to a civil forfeiture
action for forfeitures of both property directly acquired as a
result of drug sales and property used in connection with the
production or transportation of controlled substances also
highlights the breadth of that decision as applied to § 881(a).
The Court noted that § 881(a)(6) also served the additional
nonpunitive goal of "ensuring that persons do not profit from
their illegal acts." Ursery, 1996 WL 340815 at *15.

                                       -9-
States v. Tilley, 18 F.3d 295, 299-300 (5th Cir. 1994) United
States v. Levine, 905 F. Supp. 1025, 1030-31 (M.D. Fla.




                              -10-
1995).
      Therefore, we hold that the Supreme Court's declaration that
civil forfeiture does not constitute punishment for the purpose of
the Double Jeopardy Clause", Ursery, 1996 WL 340815 at *13, applies
to 21 U.S.C. § 881(a)(4) as well as 21 U.S.C. § 881(a)(6) and (7).
We   affirm   the   decision    of   the    district    court   allowing    the
forfeiture of the Delphene.


      B.      Excessive Fines
     The Claimant also contends that the forfeiture of the Delphene
would result in a violation of the Eighth Amendment's prohibition
against Excessive Fines.       See U.S. Const., amend. VIII ("Excessive
bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishment inflicted."). The district court did not
agree, stating that the forfeiture of the boat would not be a
grossly    disproportionate      punishment     in     connection   with    the
Claimant's role in the conspiracy to import marijuana.
      Civil    forfeiture   under    §     881(a)(4)    is   subject   to   the
limitations of the Excessive Fines Clause.             Department of Revenue
of Mont. v. Kurth Ranch, 114 S.Ct. 1937, 1945 (1994); Austin, 509
U.S. at 604.     The burden is on the Claimant to make a prima facie
showing that the fine is grossly disproportionate to the illegal
activity committed by the Claimant. See United States v. Alexander,
32 F.3d 1231, 1235 (8th Cir. 1994); United States v. 1181 Waldorf
Drive, St. Louis, Mo., 900 F. Supp. 1167, 1173 (E.D. Mo. 1995).              A
court must look at the specific facts of the case, including the
extent of the criminal wrongdoing and the value of the property
forfeited.    Alexander, 32 F.3d at 1236.        Courts must also consider
the amount of time the property owner engaged in illegal activity.
United States v. Bieri, 21 F.3d 819, 824 (8th Cir.), cert, denied,
115 S. Ct. 208 (1994).      The Court of Appeals review of a district
court's decision on the excessive fines issue "must be based upon
the analysis and record finally developed by the district court."
Alexander, 32 F.3d at 1237.

                                     -11-
We agree with the district court that the Claimant has not




                         -12-
made a prima facie showing of gross disproportionality.                     The value
of the Delphene is dwarfed by the value of drugs the Claimant was
to receive from the sale and the street value of all the marijuana
being transported on the boat.                  The Claimant concealed criminal
activity     for    five    years      before    his    arrest.      Therefore,      the
forfeiture of the Delphene is not a violation of the Excessive
Fines Clause of the Eighth Amendment.


III.    CONCLUSION


       The civil forfeiture of the Delphene is not barred by the
Double Jeopardy          Clause   of    the     Fifth   Amendment,    nor   does     the
forfeiture    violate       the   Excessive       Fines    Clause    of   the   Eighth
Amendment.    We affirm the district court's (1) finding of probable
cause for forfeiture of the Delphene, (2) granting of the United
states' motion for summary judgment against the Claimant, and (3)
granting of        the   United     States'      motion   for   forfeiture      of   the
Delphene.


       A true copy.


             Attest:


                    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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