                                                           F I L E D
                                                     United States Court of Appeals
                                                             Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                            JUN 23 2003
                        FOR THE TENTH CIRCUIT
                                                        PATRICK FISHER
                                                                  Clerk


UNITED STATES OF AMERICA,

           Plaintiff - Appellee,

v.                                             No. 02-5059
                                         (D.C. No. 96-CV-924-B)
ONE PARCEL OF REAL                          (N.D. Oklahoma)
PROPERTY KNOWN AS:
16614 CAYUGA ROAD,
WYANDOTTE, OTTAWA
COUNTY, OKLAHOMA, and all
buildings, appurtenances, and
improvements thereon,

           Defendant.



RICHARD LYNN DOPP,

           Claimant - Appellant.



UNITED STATES OF AMERICA,

           Plaintiff - Appellee,

v.
                                               No. 02-5060
ONE PARCEL OF REAL                       (D.C. No. 96-CV-924-B)
PROPERTY KNOWN AS: 16614                    (N.D. Oklahoma)
CAYUGA ROAD, WYANDOTTE,
OTTAWA COUNTY, OKLAHOMA,
and all buildings, appurtenances, and
improvements thereon,

                 Defendant.



PHYLLIS BOEHNE,

                 Intervenor - Appellant.



                              ORDER AND JUDGMENT          *




Before BRISCOE , PORFILIO , and ANDERSON , Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

these appeals.     See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.

       Claimants Richard Lynn Dopp, an Oklahoma state prisoner, and his mother,

Phyllis Boehne, each appearing pro se, appeal the district court’s judgment




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

                                           -2-
ordering the forfeiture of the defendant property, 16614 Cayuga Road, to the

United States, pursuant to 21 U.S.C. § 881(a)(6) and § 881(a)(7).      2
                                                                           We affirm.

       A May 1996 search of Dopp’s residence and real property at 16614 Cayuga

Road revealed eighty-two one-pound bags of marijuana, bags of marijuana seeds,

362 marijuana seedling plants, drug paraphernalia, firearms, and $33,725 in cash.

Dopp was ultimately convicted in Oklahoma state court of trafficking in

marijuana, maintaining a residence resorted to by users of a controlled dangerous

substance, and unlawful possession of a firearm. He was sentenced to life

imprisonment without possibility of parole. During the criminal proceedings,

witnesses testified that Dopp had cultivated and sold large quantities of marijuana

at the property for many years. One witness testified he delivered fifty to ninety

pounds of marijuana to Dopp’s residence every two weeks.

       On October 8, 1996, the United States filed a civil complaint       in rem

seeking the forfeiture of the defendant property, alleging it had been used to

facilitate drug transactions and/or was purchased with proceeds of the drug

transactions. Finding probable cause to believe the defendant property was

subject to forfeiture under §§ 881(a)(6) and (7), the district court issued a warrant

of arrest and notice   in rem . Dopp filed a claim objecting to the forfeiture, and the


2
      Claimant Richard Lynn Dopp filed appeal No. 02-5059; his mother, Phyllis
Boehne, filed appeal No. 02-5060. These appeals have been consolidated for
procedural purposes only.

                                           -3-
proceedings were stayed pending his state criminal proceedings. On July 2, 2001,

after the stay was lifted, the district court held a bench trial on the government’s

claim of forfeiture. On August 8, 2001, more than a month after the trial, Dopp’s

mother, Phyllis Boehne, filed a motion to intervene and notice of claim, asserting

that she was the true owner of the defendant property. The district court ruled

Boehne’s claim was time-barred. It then entered a judgment of forfeiture.


                                       Dopp’s Appeal

       Dopp first contends that the Civil Asset Forfeiture Reform Act of 2000

(CAFRA), 18 U.S.C. § 983(c), should have governed the forfeiture proceedings,

and, in particular, that he was entitled to appointed counsel under CAFRA.

CAFRA, which significantly amended the procedures for civil judicial forfeiture

proceedings, applies only to civil forfeiture proceedings commenced on or after

its effective date, August 23, 2000.    See United States v. Wagoner County Real

Estate , 278 F.3d 1091, 1095 n.1 (10th Cir. 2002). Although the term

“commenced” is not defined in CAFRA, it is clear that a judicial forfeiture

proceeding is commenced when the government files the civil complaint.         See

United States v. One “Piper” Aztec      , 321 F.3d 355, 359 (3d Cir. 2003) (relying in

part upon CAFRA’s legislative history);      United States v. $80,180.00 in U.S.

Currency , 303 F.3d 1182, 1185 (9th Cir. 2002);     see also Fed. R. Civ. P. 3 (“A

civil action is commenced by filing a complaint with the court.”). Although the

                                            -4-
civil complaint was filed in October 1996, well before CAFRA’s effective date,

Dopp contends that CAFRA should be applied retroactively because the forfeiture

trial did not begin until July 2001. This court and others have held, however, that

CAFRA does not retroactively apply to cases pending prior to August 23, 2000.

See United States v. $30,006.25 in U.S. Currency     , 236 F.3d 610, 615 (10th Cir.

2000); see also United States v. One “Piper” Aztec    , 321 F.3d at 358; United

States v. $80,180.00 in U.S. Currency   , 303 F.3d at 1185; but see United States v.

Real Prop. in Section 9 , 241 F.3d 796, 797 (6th Cir. 2001) (holding retroactive

application of CAFRA proper where no prejudice to either party). Thus, the

CAFRA did not govern the forfeiture proceedings and the district court did not err

in denying Dopp’s request for appointed counsel.

      Next, Dopp contends the district court erred in denying his motion to

suppress evidence, which he did not file until after the conclusion of the

forfeiture trial. He asserts numerous arguments, all of which are related to his

contention that the evidence seized in his state search, seizure, and arrest, was

discovered in violation of the Fourth Amendment. Dopp is collaterally estopped

from raising these Fourth Amendment issues as a defense to the civil forfeiture

action, because these same issues were fully litigated in his state criminal

prosecution and all of the criteria for application of collateral estoppel have been

met. See United States v. 6380 Little Canyon Road     , 59 F.3d 974, 979-80 (9th Cir.


                                          -5-
1995) (abrogation on other grounds recognized by           United States v. $273,969.04

U.S. Currency , 164 F.3d 462, 466 n.3 (9th Cir. 1999)). Contrary to Dopp’s

contention, it is clear from the record that all of the relevant pleadings and

transcripts from the criminal proceedings were submitted to the district court.

       Dopp next contends that the United States seized the defendant property

without adequate notice or an adversary proceeding. This argument is without

merit. It is clear from the record, including the notice      in rem , that the defendant

property was not seized until the conclusion of the forfeiture trial, the entry of the

judgment of forfeiture, and the denial of the stay requests. The government

posted notice of the potential seizure, but did not otherwise interfere with Dopp’s

enjoyment of the property.     See United States v. James Daniel Good Real Prop.        ,

510 U.S. 43, 59 (1993). Indeed, as discussed below, Dopp effected several

transfers of the property to and from his mother during the pendency of the

forfeiture proceedings. Further, the record amply supports the district court’s

conclusion that the government afforded Dopp notice and an opportunity to be

heard before seizing the defendant property for forfeiture.        See Mullane v. Cent.

Hanover Bank & Trust Co. , 339 U.S. 306, 314 (1950).

       Further, we conclude that the district court did not err in ruling that, based

on the marijuana packages, plants and seeds, drug paraphernalia, and currency

found at the defendant property, the government met its burden of showing


                                             -6-
probable cause to believe that a nexus existed between the defendant property and

illegal activity sufficient to justify forfeiture.    See United States v. $149,442.43 in

U.S. Currency , 965 F.2d 868, 876-77 (10th Cir. 1992).

       Next, Dopp contends the forfeiture constituted an excessive fine in

violation of the Eighth Amendment’s Excessive Fines Clause.            See Austin v.

United States , 509 U.S. 602, 622 (1993) (holding that forfeiture under § 881(a)(7)

is limited by Excessive Fines Clause). A forfeiture under § 881(a)(7) violates the

Excessive Fines Clause, if it is “grossly disproportional to the gravity of the

defendant’s offense.”      Wagoner , 278 F.3d at 1099 (quotation omitted).

       In determining whether a civil forfeiture violates the Excessive Fines

Clause, the government must make an initial showing that “the connection

between the property and the offense is more than a fortuitous or incidental one”;

“[i]f the government meets the test, then the burden shifts to the claimant to show

that the forfeiture is grossly disproportionate in light of the totality of the

circumstances.”     Id. at 1101 n.8 (quotation and citation omitted). Dopp contends

we must remand this issue for consideration by the district court in the first

instance because it did not expressly discuss the factors considered in an

Excessive Fines Clause analysis.         See id . at 1099-1102 (describing factors to be

considered in making proportionality determination).




                                                -7-
       The district court did make detailed findings of fact demonstrating Dopp’s

extensive and long-term use of the defendant property for large-scale marijuana

cultivation and distribution. Contrary to Dopp’s assertion, these findings are

clearly and amply supported by the record. We conclude Dopp did not meet his

burden of establishing that the amount of the forfeiture is grossly disproportional

to the gravity of his offense; thus, no remand is necessary.   See Wagoner , 278

F.3d 1101 n.8. Moreover, the district court also found, with record support, that

the defendant property constituted proceeds of crime, or property traceable to

such proceeds, forfeitable under § 881(a)(6). As a matter of law, forfeiture of

drug proceeds pursuant to § 881(a)(6) can never be constitutionally excessive.

United States v. Lot 41, Berryhill Farm Estates     , 128 F.3d 1386, 1395-96 (10th

Cir. 1997).

       Next, Dopp contends the government failed to make timely disclosure of

the evidence it would introduce at the forfeiture trial, in violation of

Fed. R. Civ. P. 26. We agree with the district court’s conclusion that Dopp

suffered no unfair surprise or prejudice as a result of any untimely disclosure

because the vast majority of the documents introduced at the forfeiture trial were

the same as those admitted in his criminal trial, and the record reflects that it was

clear throughout the forfeiture proceedings that the government would be relying

on this evidence.   See Mid-America Tablewares, Inc. v. Mogi Trading Co.     , 100


                                             -8-
F.3d 1353, 1362 (7th Cir. 1996) (holding that trial court has broad discretion in

deciding whether a Rule 26(a) violation is substantially justified or harmless).

We further find no error with respect to the admission of DEA Agent Mayfield’s

testimony or the admission of excerpts of the transcripts of witness Flores’

testimony.

       Dopp’s next argument, that the defendant property may not be forfeited

under Oklahoma’s homestead exemption, is without merit because this court has

previously ruled that federal civil forfeiture of residential property is not

precluded by Oklahoma’s homestead exemptions.         Wagoner , 278 F.3d at 1097.

Dopp’s next contention, that the forfeiture violated the Double Jeopardy Clause,

is similarly without merit.   See United States v. Ursery , 518 U.S. 267, 270 (1996)

(ruling that civil forfeiture does not implicate the Double Jeopardy Clause);

Berryhill Farm Estates , 128 F.3d at 1391 (same).

       Finally, with respect to Dopp’s last arguments, we conclude the district

court correctly dismissed his counterclaim seeking reimbursement for mortgage,

tax, and insurance payments he allegedly made on the defendant property pending

the forfeiture proceedings, and in denying his post-trial motion for default

judgment.




                                           -9-
                                    Boehne’s Appeal

       Throughout the pre-trial forfeiture proceedings and the forfeiture trial,

Dopp represented to the district court that he was the owner of the defendant

property. See, e.g ., Telephonic Pre-Trial Conference, at 8, 12-13. Inexplicably,

one month after the close of forfeiture trial, but before the district court had

entered a judgment of forfeiture, Dopp’s mother, Phyllis Boehne, filed a motion

to intervene, claiming that she actually owned the defendant property. She

claimed to have acquired it by quitclaim deed from Dopp on October 18, 1996,

after the government filed its forfeiture complaint, but before it filed its notice of

lis pendens with the Ottawa County clerk’s office (the county in which the

defendant property was located). She asserted an “innocent owner” owner

defense to forfeiture, alleging she had no knowledge in October 1996 of any

illegal activity on the property. She further claimed to have no knowledge of the

forfeiture proceedings, which had been pending for almost five years, until June

2001, just before the start of the forfeiture trial.

       Notwithstanding her claims of ignorance, Boehne admitted loaning Dopp

money in May 1996 to post bond and pay his lawyer with respect to the drug

trafficking charges. On May 9, 1996, six months prior to her alleged acquisition

of the defendant property, the government had recorded a caveat with the Ottawa

County clerk’s office, giving notice that it claimed an interest in the defendant


                                           -10-
property. Notice of the potential forfeiture was issued on October 16, 1996, prior

to her alleged acquisition, and posted at the defendant property, in an open and

visible manner, on November 8, 1996, in accordance with the district court’s

warrant of arrest and notice    in rem . In addition, the government gave public

notice of the forfeiture proceedings throughout the month of April 1997, in two

newspapers, one of general circulation in Ottawa County, and another of general

circulation in the Northern District of Oklahoma, as required by Rule C(4) of the

Supplemental Rules for Certain Admiralty and Maritime Claims (Supplemental

Rules), which govern procedure in civil forfeiture actions.    See United States v.

51 Pieces of Real Prop. , 17 F.3d 1306, 1308 n.2 (10th Cir. 1994). Proof of

publication was filed with the district court in May 1997. Moreover, though

Boehne claimed she first learned of the forfeiture proceedings prior to trial, she

did not notify the district court of her alleged interest in the property until several

weeks after the close of the trial.   3



       The government filed a motion to strike Boehne’s claim because she had

failed to file a timely claim and because it discovered that Boehne had executed a

quitclaim deed of the defendant property back to Dopp on March 23, 1998, while



3
       Dopp did attempt to introduce a copy of the October 18, 1996 quitclaim
deed during the forfeiture trial. The district court denied its admission because it
was uncertified and contrary to Dopp’s representation during the preceding four
years that he owned the defendant property.

                                           -11-
the forfeiture proceedings had been stayed. In response, Boehne acknowledged

the March 23, 1998, reconveyance to Dopp, but now claimed, for the first time,

that Dopp had quitclaimed the defendant property        back to her on July 27, 2001,

weeks after the close of the forfeiture trial, but just before she filed her motion to

intervene. R. Vol. III, Doc. 116, at 4-5. This assertion is directly contrary to

Dopp’s affidavit, dated July 26, 1997, in which he testified that Boehne had

owned the property since October 18, 1996, and that he had been unable to buy it

back from her since the October 18, 1996 conveyance.         Id., Doc. 103, Ex. B.

Boehne did not record the July 27, 2001 quitclaim deed until September 10, 2001,

the day before she filed her response.

       The district court, after a thorough analysis of the procedural posture of

Boehne’s many claims and alleged conveyances, ruled that her claim was

untimely filed.   Id., Doc. 120, at 7.   See Rule C(6) of the Supplemental Rules

(requiring, under the version of the rule in place at the time this forfeiture case

arose, that a claimant file a verified claim within ten days after process has been

executed). For substantially the reasons set forth in the district court’s

November 29, 2001 order, we conclude the district court’s ruling is both factually

supported by the record, and legally correct.      See 51 Pieces of Real Prop. , 17 F.3d

at 1318 (noting that purpose of Rule C(6)’s time restriction is “to force claimants

to come forward as soon as possible after forfeiture proceedings have been


                                            -12-
initiated so that all interested parties can be heard and the dispute resolved

without delay” (quotation omitted)). In light of Boehne’s failure to file a timely

claim, we need not address the remainder of her arguments on appeal.

      The judgment of the district court is AFFIRMED. Dopp’s motion to

proceed before this court without prepayment of fees is GRANTED. The

mandates shall issue forthwith.



                                                     Entered for the Court



                                                     Stephen H. Anderson
                                                     Circuit Judge




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