
USCA1 Opinion

	




        September 10, 1992      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1410                               UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                           ONE PARCEL OF REAL PROPERTY WITH                      BUILDINGS, APPURTENANCES AND IMPROVEMENTS                      KNOWN AS 121 WEST SHORE DRIVE, LOCATED IN                          THE TOWN OF EXETER, RHODE ISLAND,                                 Defendant, Appellee,                                                                                      __________                              PETER L. CHAMBERLAIN, JR.,                                Plaintiff, Appellant.                                 ____________________        No. 92-1453                               UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                     ONE PARCEL OF REAL PROPERTY WITH BUILDINGS,                       APPURTENANCES AND IMPROVEMENTS KNOWN AS                      121 WEST SHORE DRIVE, LOCATED IN THE TOWN                               OF EXETER, RHODE ISLAND,                                 Defendant, Appellee,                                                                                      __________                              PETER L. CHAMBERLAIN, JR.,                                Plaintiff, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Peter L. Chamberlain, Jr. on brief pro se.            _________________________            Lincoln  C.  Almond,  United   States  Attorney,  and  Michael  P.            ___________________                                    ___________        Iannotti,  Assistant United  States Attorney,  on brief  for appellee,        ________        United States of America.                                 ____________________                                 ____________________                      Per  Curiam.    Claimant  appeals from  a  judgment                      ___________            forfeiting his property (home  and surrounding land) under 21            U.S.C.     881(a)(7)  (authorizing  the  forfeiture  of  real            property  "used,  or intended  to  be used"  to  facilitate a            controlled  substance  offense  punishable by  more  than one            year's imprisonment).  We address claimant's main arguments.                      1.     Claimant  contends  there  was  insufficient            evidence of a  "substantial connection" between his  property            and  any unlawful drug activity.  See United States v. Parcel                                              ___ _____________    ______            of Land & Residence at 28 Emery Street, 914 F.2d  1, 3-4 (1st            ______________________________________            Cir.  1990) ("We have  consistently required that  there be a            'substantial connection'  between the property  forfeited and            the  drug  activity.").   In  particular, he  argues  that no            marihuana plants were actually located on claimant's property            and  that  the   district  court's  finding  of   substantial            connection   was   impermissibly  premised   solely   on  the            speculation  that the  bale  of marihuana  claimant had  paid            $54,000  for  immediately  prior   to  his  arrest  would  be            processed for distribution at claimant's home.                      We  disagree.   The agreed  statement of  facts (on            which  the case was presented  to the district  court) may be            ambiguous as  to the  precise  location of  the 30  marihuana            plants located "behind the Chamberlain house" and "in an area            to the  rear of the defendant real property."  But the agreed            statement  is clear that Chamberlain told a DEA agent that he                                         -3-            had 100 marihuana  plants hidden  "on his  property" and  the            inference  that  marihuana was  located  on  the property  is            further supported by defendant's guilty plea described in the            agreed  statement as  a plea inter  alia to  "possession with                                         ___________            intent  to distribute  the marihuana  found at  the defendant            real property . . . . "                      Second, additional evidence connected  the premises            to unlawful drug uses  or intended uses.  Claimant,  who told            undercover agents  he had  been selling narcotics  for twenty            years, conducted  some of  the negotiations for  purchasing a            marihuana  bale by  phone  from the  defendant premises,  and            cocaine (103.75 grams)  as well as drug  trafficking tools (a            triple beam scale,  Inositol, a how  to grow marihuana  book,            and  firearms) were  found on  the property.   Claimant  pled            guilty to  possessing with  intent to distribute  the cocaine            found  on the premises.   In sum, the  evidence showed actual            use of the premises to cultivate marihuana and to store drugs            for  later intended  distribution.   This  was sufficient  to            establish the requisite substantial connection.                      Finally, here, where claimant was admittedly in the            narcotics  business  and  had  manifestly used  his  home  in            furtherance  of  his  business,  it was  reasonable  for  the            district court  to conclude that the  marihuana bale claimant            had paid  $54,000 for immediately  before he was  arrested --            like the cocaine  found on  the premises --  would have  been                                         -4-            stored  at  claimant's   home  had   claimant's  arrest   not            intervened.   Hence,  unlike  the cases  upon which  claimant            relies,  both  significant actual  use  as  well as  intended            future use were adequately established to support forfeiture.                      2.    Relying  on  United States  v.  Certain  Real                                         _____________      _____________            Property and  Premises Known as  38 Whalers  Cove Drive,  954            _______________________________________________________            F.2d 29 (2d Cir. 1992), petition for cert. filed, 60 U.S.L.W.                                    ________________________            3755  (U.S. April  20, 1992)  (No. 91-1682),  claimant argues            that the forfeiture of  his home was disproportionately harsh            for his offense and constitutes cruel and unusual punishment.            Claimant did  not present  this argument below,  and normally            arguments may not  be raised  for the first  time on  appeal.            Were we to consider  the argument, however, we would  find no            merit in it, for we have recently rejected the Second Circuit            position  that  forfeitures  are subject  to  proportionality            analysis  and  have  instead  adhered to  our  position  that            "proportionality   analysis   is   inappropriate   in   civil            forfeiture cases under section  881(a)(7)."  United States v.                                                         _____________            One  Parcel of  Real Property,  960 F.2d  200, 207  (1st Cir.            _____________________________            1992).    Moreover, were  we  to  accept  the Second  Circuit            approach, there is nothing in  the present record which would            convince   us  that  the  forfeiture  was  unconstitutionally            disproportionate.   United States  v. A  Parcel of  Land, 884                                _____________     __________________            F.2d  41   (1st  Cir.  1989)  (rejecting   claim  that  civil            forfeiture of home and 17.9 acres  of land from which 80 live                                         -5-            and   50  dried   marihuana  plants   had  been   seized  was            unconstitutionally harsh).                      As for  any double jeopardy claim  (also not raised            below),  we would reject it -- had it been properly preserved            -- for the first and third reasons explained in United States                                                            _____________            v. A Parcel of Land, 884 F.2d at 43-44.               ________________                      Affirmed summarily  pursuant to  1st Cir.  R. 27.1.                      __________________________________________________            The motion for oral argument is denied.            ______________________________________                                         -6-
