UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

BOBBY CARL LOCKLEAR; RUBY S.
LOCKLEAR,
Claimants-Appellants,

v.

TRACT 1 ROBESON COUNTY LAND,
One tract of real property with
                                                               No. 95-2883
buildings, appurtenances and
improvements thereto, being more
particularly described in Book 545,
Page 0407 of the Robeson County
Registry, being titled in the names
of Bobby Carl Locklear, and wife,
Ruby S. Locklear; and any and all
proceeds from the sale of said
property,
Defendant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Fayetteville.
Malcolm J. Howard, District Judge.
(CA-93-85-3-H)

Submitted: August 27, 1996

Decided: October 30, 1996

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.
COUNSEL

William Lee Davis, III, Lumberton, North Carolina, for Appellants.
Janice McKenzie Cole, United States Attorney, Stephen A. West,
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Bobby Carl Locklear was convicted of maintaining a place for dis-
tributing and using cocaine, and for the manufacturing and distribu-
tion of marijuana, in violation of 21 U.S.C. § 856 (1988). He received
a sentence of fifty-one months imprisonment. His wife, Ruby S.
Locklear, was convicted of establishing a drug manufacturing opera-
tion in violation of § 856, and was sentenced to serve fifteen months
imprisonment.1

Following the Appellants' convictions and sentences for drug traf-
ficking offenses, the government instituted civil in rem forfeiture pro-
ceedings under 21 U.S.C.A. § 881(a)(7) (West 1981 & Supp. 1996)
for the real property used or intended to be used in or to facilitate a
drug manufacturing operation. In addition to denying the allegations
contained in the forfeiture complaint, the Appellants moved to dis-
miss the complaint on the grounds that the forfeiture violated the
Double Jeopardy Clause and was excessive under the Eighth Amend-
ment.

In ordering the forfeiture of the Appellants' real property, the dis-
_________________________________________________________________
1 Bobby Carl Locklear and Ruby S. Locklear will collectively be
referred to as "the Appellants."

                    2
trict court found that the government had established probable cause
for the forfeiture and that the Appellants had failed to put forth any
reason to deny the forfeiture. We affirm.

The North Carolina State Bureau of Investigation conducted a six-
year investigation into the Appellants' reputation for drug trafficking.
Thereafter, a search of the Appellants' residence resulted in the dis-
covery of marijuana seeds, marijuana plants, cocaine, cocaine residue,
and drug-related paraphernalia both inside the residence and in the
barns located on the property.2

The Appellants claim on appeal that the forfeiture of their property
violated the Double Jeopardy Clause. The recent uncertainty regard-
ing the effect of the Double Jeopardy Clause on civil forfeitures has
now been clarified by United States v. Ursery , ___ U.S. ___, 64
U.S.L.W. 4565 (U.S. June 24, 1996) (Nos. 95-345, 95-346), which
affirmed the Supreme Court's adherence to the two-part test refined
in United States v. One Assortment of 89 Firearms, 465 U.S. 354, 363
(1984). Under this test, a court must first determine whether Congress
intended for proceedings under the relevant forfeiture statute to be
criminal or civil. If Congress' intent was to create a civil proceeding,
then a presumption arises that the forfeiture does not implicate the
Double Jeopardy Clause. Ursery, 64 U.S.L.W. at 4571-72 & n.3.
Under the second step of the test, however, this presumption may be
rebutted where "clearest proof" indicates that the forfeiture is so puni-
tive in nature that the proceedings may not be fairly viewed as civil
despite Congress' intent. Id.

Applying this test in Ursery, the Supreme Court first found that
Congress clearly intended for forfeitures conducted under 21 U.S.C.
§ 881 to be civil proceedings. Id. at 4571. Having thus established a
presumption against the double jeopardy bar, the Court departed from
its examination of § 881 as a whole and asked instead whether the
sections implicated in the case before it--subsections 881(a)(6) and
(7)--were so punitive as to negate Congress' intent. This inquiry
focused on the non-punitive goals served by these sections, explaining
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2 The Appellants' son, Carl Dean Locklear, admitted that some, but not
all, of the items belonged to him. He pled guilty to separate drug charges
but was advised by his attorney not to testify in his parents' trial.

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that § 881(a)(7) encouraged property owners to exercise greater care
in the management of their property, made crime unprofitable, and
could even be said to abate nuisances. Id. at 4572. Likewise, the Court
found § 881(a)(6) to serve the non-punitive goal of ensuring that indi-
viduals reap no benefit from their criminal activity. In light of these
goals, the Court determined that "there is little evidence, much less
the `clearest proof ' . . . [to] suggest[ ] that forfeiture proceedings
under . . . [these sections] are so punitive in form and effect as to ren-
der them criminal." Id. (citations omitted). Accordingly, the Court
found, categorically, that forfeitures under § 881(a)(6) and (7) are
"neither `punishment' nor criminal for purposes of the Double Jeop-
ardy Clause." Id.

Therefore, we hold that under Ursery, the forfeiture of the Appel-
lants' real property under § 881(a)(7) was not criminal punishment
and thus did not implicate the Double Jeopardy Clause.

The Appellants also contend that the forfeiture was excessive under
the Eighth Amendment. In United States v. Chandler, 36 F.3d 358
(4th Cir. 1994), cert. denied, ___ U.S. ___, 63 U.S.L.W. 3771 (U.S.
Apr. 24, 1995) (No. 94-1143), this Court adopted a new three-part
"instrumentality" test and rejected a "proportionality" test for deter-
mining excessiveness of an in rem forfeiture pursuant to the Exces-
sive Fines Clause of the Eighth Amendment. Id. at 364-65. Under the
three-part instrumentality test, a court must consider: "(1) the nexus
between the offense and the property and the extent of the property's
role in the offense, (2) the role and culpability of the owner, and (3)
the possibility of separating offending property that can readily be
separated from the remainder." Id. at 365. In measuring the relation-
ship between the property and the offense, a court may take into
account:

          (1) whether the use of the property in the offense was delib-
          erate and planned or merely incidental and fortuitous; (2)
          whether the property was important to the success of the
          illegal activity; (3) the time during which the property was
          illegally used and the spacial extent of its use; (4) whether
          its illegal use was an isolated event or had been repeated;

                     4
          and (5) whether the purpose of acquiring, maintaining or
          using the property was to carry out the offense.

Id. No one factor is dispositive, but the court must be able to con-
clude, under the totality of circumstances, that the property was a sub-
stantial and meaningful instrumentality in the commission of the
offense or would have been had the offensive conduct been carried
out as intended. Id.

Here, the Appellants clearly meet the first part of the Chandler test.
The government presented a witness who testified that, on several
occasions, she purchased cocaine from Bobby Carl Locklear at the
Appellants' home. And she socially smoked marijuana with the
Appellants at their home. In addition to recovering drugs and drug
paraphernalia throughout the residence, pursuant to the search war-
rant, agents also recovered from the small front barn several clear
plastic bags, with the corners cut out of them, a pair of scissors, a
brown case containing a triple beam balance, which was covered in
cocaine residue, and a bottle containing a mixture of mannitol and
cocaine.3 From the tobacco barn at the rear of the property authorities
found a green garbage bag containing 450 grams of cocaine hidden
among bales of hay. This evidence showed that the forfeited property
was crucial to the success of the Appellants' drug manufacturing and
distribution activities.

As for the second part of the Chandler test, the Appellants jointly
owned the property and were found guilty of their charged offenses.
See Chandler, 36 F.3d at 365. Finally, authorities seized only the
property that related to the offense.

Under the totality of the circumstances, we find that the property
was a substantial and meaningful instrumentality in the commission
of the offense and that the forfeiture of the Appellants' real property
was not excessive under the Eighth Amendment. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.

AFFIRMED
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3 Mannitol is a common dilute found in the drug trade. (JA at 56).

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