                 United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                 ____________

                                  No. 96-2603
                                 ____________

United States of America,             *
                                      *
                 Appellee,            *
                                      *
       v.                             *
                                      *
Premises Known as 6040                *
Wentworth Avenue South,               *
Minneapolis, Hennepin County,         *
Minnesota, with all                   *Appeal from the United States
appurtenances thereto and all       * District Court for the
proceeds from its sale or           * District of Minnesota
transfer,                           *
                                    *
                  Defendant.        *
                                    *
David John Hanson; Rose Mary        *
Hanson,                             *
                                    *
                  Appellants.       *
                              ____________

                    Submitted:       February 14, 1997

                                                Filed:        August 25,
1997
                                 ____________

Before McMILLLIAN, JOHN R. GIBSON and FAGG, Circuit Judges.
                              ____________
McMILLIAN, Circuit Judge.

      This appeal involves a civil forfeiture proceeding, brought pursuant
to 21 U.S.C. § 881(a)(7),1 against certain real property which was
purportedly involved in the manufacture of marijuana in violation of 21
U.S.C. § 841(a)(1). The owners of the defendant property, David Hanson and
Rose Hanson (together “the claimants”), appeal from a final order entered
in the United States District Court2 for the District of Minnesota granting
summary judgment in favor of the United States (the government) in the
forfeiture proceeding. United States v. Premises Known as 6040 Wentworth
Avenue South, No. 4-93-CV-536 (D. Minn. May 2, 1996) (adopting the report
and recommendation of the magistrate judge). For reversal, the claimants
argue that the district court erred in holding that the forfeiture of the
defendant property did not constitute an excessive fine under the Eighth
Amendment’s excessive fines clause.3 For the reasons discussed below, we
affirm the order of the district court.




      1
       21 U.S.C. § 881(a)(7) provides, in pertinent part:

            The following shall be subject to forfeiture to the United States and
      no property right shall exist in them:

             ....

             (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 [drug-related crime] punishable by more
             than one year’s imprisonment . . . .
      2
        The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota.
      3
      "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishment inflicted.” U.S. Const. amend. VIII.

                                          -2-
                                  I. Background

      The facts of this case are undisputed. On May 9, 1993, a private
citizen observed David Hanson cultivating a marijuana crop on private
property located in Blakely Township, Minnesota, which was being watched
by the private citizen on behalf of the absent owner. When confronted,
David Hanson offered the private citizen a portion of the crop if he would
not contact the police.      The private citizen refused the offer and
subsequently notified the police. The police arrived and, following an
investigation, arrested David Hanson for being in possession of marijuana
cuttings and plants which were found inside of plastic bags recently
delivered to the cultivation site. The police seized a total of thirty
marijuana plants at the cultivation site. Following David Hanson’s arrest,
a warrant was obtained to search his personal residence located at 6040
Wentworth Avenue South, Minneapolis, Minnesota. The warrant was executed
that day, and the police seized:      approximately 265 growing marijuana
plants, 200 of which were “cuttings”4; 138 bags of marijuana weighing a
total of 6.6 pounds; discarded bags of dried marijuana leaves and stems;
a cache of drug paraphernalia, including drug packaging materials, grow
lights, scales, and fertilizer; and a key payment notice for a safety
deposit box in the claimants’ names. The police also seized hand-rolled
marijuana cigarettes from Rose Hanson’s purse. The police subsequently
executed a search, pursuant to a search warrant, of the safety deposit box
and found nearly $40,000.

      David Hanson was indicted on October 6, 1993, on three counts: (I)
knowingly and intentionally manufacturing approximately thirty marijuana
plants at the property located in Blakely Township, Minnesota, in violation
of 21 U.S.C. § 841(a)(1); (II) knowingly and intentionally manufacturing
approximately 265 marijuana plants at




      4
       "Cuttings” are small segments of a growing plant which have been cut from the
plant and replanted in a relatively small amount of soil. The cuttings seized by the
police were between three and eight inches in height.

                                        -3-
his residence at 6040 Wentworth Avenue South, in violation of 21 U.S.C.
§ 841(a)(1); and (III) knowingly and intentionally possessing with intent
to distribute approximately 6.6 pounds of marijuana in violation of 21
U.S.C. § 841(a)(1).    He pleaded guilty to Count I, and the government
dismissed Counts II and III.       Pursuant to the plea agreement, the
government reserved the right to refer to Counts II and III as relevant
conduct for sentencing purposes and David Hanson reserved the right to
argue that such conduct referenced in Counts II and III was not relevant.
After considering such conduct as relevant conduct, the district court
sentenced David Hanson on Count I on May 13, 1994, to forty-six months of
imprisonment, followed by three years of supervised release. The district
court did not impose a fine because of David Hanson’s inability to pay.

      On June 1, 1993, several months before David Hanson was indicted,
this civil forfeiture proceeding was commenced against the defendant
property known as 6040 Wentworth Avenue South. On August 11, 1994, the
claimants filed with the district court a stipulation to concede probable
cause for the seizure of the defendant property, pursuant to 21 U.S.C.
§ 881(a)(7).    However, the claimants did contest:    whether the search
warrant executed at the defendant property on May 9, 1993, was supported
by probable cause; whether the forfeiture of the defendant property would
violate the double jeopardy clause of the Fifth Amendment; and whether the
forfeiture of the defendant property would violate the excessive fines
clause of the Eighth Amendment.      The parties filed cross-motions for
summary judgment on those issues.
      The case was referred to a magistrate judge,5 who recommended that
the claimants’ summary judgment motion be denied and that summary judgment
be granted in favor of the government. United States v. Premises Known as
6040 Wentworth Avenue South, No. CIV. 4-93-536, 1996 WL 260745, at *7 (D.
Minn. Feb. 1, 1996)




      5
        The Honorable Raymond L. Erickson, United States Magistrate Judge for the
District of Minnesota.

                                       -4-
(report and recommendation) (6040 Wentworth). The magistrate judge held
as a matter of law that:     David Hanson is collaterally estopped from
challenging the adequacy of probable cause because the issue was
adjudicated during his prior criminal proceedings and Rose Hanson’s
challenge should be rejected because there was a substantial basis for a
finding of probable cause to search the residence, id. at *3-4; the
claimants’ double jeopardy rights have not been infringed, id. at *5; and
the forfeiture of the defendant property does not violate the excessive
fines clause, id. at *7. The district court adopted the magistrate judge’s
report and recommendation.     United States v. Premises Known as 6040
Wentworth Avenue South, No. 4-93-CV-536 (D. Minn. May 2, 1996).        The
claimants appealed.

                             II. Discussion

      We review a grant of summary judgment de novo and will affirm only
if the record, viewed in the light most favorable to the claimants, shows
that there is no genuine issue of material fact and that the government is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see, e.g.,
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Thomas v. Gunter,
103 F.3d 700, 702 (8th Cir. 1997).       Where the unresolved issues are
primarily legal rather than factual, summary judgment is particularly
appropriate. Crain v. Board of Police Comm’rs, 920 F.2d 1402, 1405-06 (8th
Cir. 1990). We review the district court’s determination of the excessive
fines issue “based upon the analysis and record finally developed by the
district court.” United States v. One 1970 36.9' Columbia Sailing Boat,
91 F.3d 1053, 1057 (8th Cir. 1996) (reviewing grant of summary judgment).

      In light of United States v. Ursery, 116 S. Ct. 2135 (1996), which
was decided approximately one month after the claimants filed their notice
of appeal and held that civil forfeitures do not violate the double
jeopardy clause of the Fifth Amendment, the claimants abandoned their
double jeopardy argument. Instead, the claimants argue that the civil
forfeiture of their home violates the excessive fines clause of the Eighth




                                   -5-
Amendment. Specifically, they argue that the magistrate judge erred in
relying upon United States v. Bieri, 68 F.3d 232, 236 (8th Cir. 1995),
cert. denied, 116 S. Ct. 1876 (1996), in holding that the claimants failed
to satisfy their preliminary burden of making a prima facie showing of
“gross disproportionality,” see 6040 Wentworth, 1996 WL 260745, at *7,
because a showing of gross disproportionality is required only in cases
involving criminal forfeitures. The claimants maintain that they were not
required to show that the civil forfeiture of their residence is grossly
disproportionate to the crime for which David Hanson was convicted. They
further argue that the forfeiture is excessive because Rose Hanson was
neither indicted nor convicted of any offense and was therefore an innocent
occupant. The claimants rely upon United States v. Real Property Located
at 6625 Zumirez Drive, 845 F. Supp. 725, 732 (C.D. Cal. 1994) (Zumirez),
in which the court applied “a multifactor test that focuses on an
evaluation of the relationship of the property to the alleged offense,
rather than an analysis of the property’s actual monetary value.” The
Zumirez court weighed three factors to determine whether a civil forfeiture
violated the excessive fines clause:     (1) the inherent gravity of the
offense compared with the harshness of the penalty; (2) whether the
property was an integral part of the commission of the crime; and (3)
whether the criminal activity involving the defendant property was
extensive in terms of time or spatial use or both. Id. The claimants
argue that, in weighing these factors, the forfeiture is excessive in the
present case because the defendant property is the home of the claimants
and Rose Hanson is an innocent occupant.

      We reject the claimants’ argument that civil forfeiture cases and
criminal forfeiture cases require different analyses under the excessive
fines clause. See, e.g., United States v. One 1970 36.9' Columbia Sailing
Boat, 91 F.3d at 1057 (relying upon Bieri for excessiveness analysis in
civil forfeiture case under § 881(a)(4), which court analogized to
§ 881(a)(7)); cf. United States v. Ursery, 116 S. Ct. 2135, 2147 (1996)
(distinguishing between civil and criminal forfeitures for purposes of the
Fifth Amendment’s double jeopardy clause). The Supreme Court has declined
to establish a multifactor test for determining whether a forfeiture is
constitutionally excessive,




                                    -6-
leaving that determination to the lower courts to consider in the first
instance. Austin v. United States, 509 U.S. 602, 622-23 (1993). This
circuit has developed a two-pronged approach for analyzing the
excessiveness question.

      Preliminarily, “the defendant has the initial burden of
      making    a    prima    facie    showing    of    ‘gross
      disproportionality.’ Second, “‘the [E]ighth [A]mendment
      demands     that    a    constitutionally     cognizable
      disproportionality reach such a level of excessiveness
      that in justice the punishment is more criminal than the
      crime.’”

            To determine whether the facts indicate gross
      disproportionality, the district court must consider
      multiple factors, including the extent and duration of
      the criminal conduct, the gravity of the offense weighed
      against the severity of the criminal sanction, and the
      value of the property forfeited.         “Other helpful
      inquiries might include an assessment of the personal
      benefit reaped by the defendant, the defendant’s motive
      and culpability and, of course, the extent that the
      defendant’s interest and the enterprise itself are
      tainted by criminal conduct.” This multifactor approach
      does not provide an exhaustive list of factors, but it
      provides a helpful framework for analysis which will
      necessarily vary from case to case.

Bieri, 68 F.3d at 236 (citations omitted).             While there are few cases
interpreting the excessive fines clause, it is clear that this court
“require[s] proof of ‘gross disproportionality,’ an excessiveness so great
that ‘the punishment is more criminal than the crime.’”         United States v.
Hines, 88 F.3d 661, 664 (8th Cir. 1996) (relying upon forfeiture cases in
analyzing   fine   imposed   at   sentencing   under    excessive   fines   clause)
(citations omitted).   In United States v. One 1970 36.9' Columbia Sailing
Boat, this court held that, considering the specific facts of that case,
including the extent of the criminal wrongdoing, the value of the property
forfeited, and the amount of time the property owner engaged in illegal
activity, the claimant failed to make a prima facie




                                       -7-
showing of gross disproportionality and, therefore, the civil forfeiture
was not excessive.     91 F.3d at 1057-58.       In United States v. One Parcel of
Real Property, Located at 9638 Chicago Heights, 27 F.3d 327, 331 (8th Cir.
1994), while declining to determine whether the civil forfeiture involved
was excessive because the seizure of the defendant property violated the
claimant’s Fifth Amendment due process rights, this court disapproved of
the district court’s excessiveness analysis because it failed to “consider
the monetary value of the property, the extent of the criminal activity
associated with the property, the fact that the property was a residence,
the effect of the forfeiture on innocent occupants of the residence,
including children, or any other factors that an excessive fine analysis
might require.”     Most recently, this court summarized the two-part analysis
set forth in Bieri, holding that gross disproportionality is determined by
comparing “the extent and duration of [a claimant’s] criminal activities
with the amount of property forfeited” and that only after a claimant has
made   a    prima   facie   showing   of    gross   disproportionality   will   the
government’s evidence of “just proportionality” be considered.             United
States v. Alexander, 108 F.3d 853, 855 (8th Cir. 1997).


       We hold that the magistrate judge did not err in requiring the
claimants to show gross disproportionality or in holding, as a matter of
law, that the forfeiture is not excessive.           Based upon the record before
us, it is reasonable to infer that the claimants used their home in
furtherance of a substantial enterprise for cultivating, storing, and
distributing marijuana.      See 6040 Wentworth, 1996 WL 260745, at *7.         The
claimants’ replanting of approximately 200 marijuana cuttings indicates the
extent of the growing operation and the prolonged duration of the illegal
activity.     Furthermore, given the quantities of marijuana found at the
defendant property, the applicable statutory fine




                                           -8-
would be $250,000 and the range of fines under the sentencing guidelines
would be from $10,000 to $100,000.           Moreover, the applicable guidelines
range for David Hanson’s conviction for manufacturing thirty marijuana
plants is from $10,000 to $100,000.           The value of the defendant property
is approximately $60,000, which falls well within the applicable range.6
See, e.g., Bieri, 68 F.3d at 238 (comparing, among other things, value of
forfeited property with authorized statutory fine); United States v. 1181
Waldorf Drive, 900 F. Supp. 1167, 1173-74 (E.D. Mo. 1995) (comparing, among
other things, value of forfeited property with range of fines under
sentencing guidelines).          While “we are mindful that the [d]efendant
premises served as the [c]laimants’ personal residence, . . . we are not
faced with innocent occupants here, for all that transpired within that
dwelling was undeniably accepted and condoned by both [c]laimants -- the
concession of probable cause admits as much.”               6040 Wentworth, 1996 WL
260745, at *7; see Bieri, 68 F.3d at 237 (parents’ culpability outweighed
intangible value of property and adverse effect of forfeiture on innocent
children).


       Furthermore, the factors which we have considered encompass those
enumerated in Zumirez.        In United States v. Real Property Located in El
Dorado County at 6380 Little Canyon Road, 59 F.3d 974, 982 (9th Cir. 1995),
the Ninth




      6
       We note that the government’s failure to present evidence of the value of the
drugs seized is irrelevant in this case because the claimants failed to make a preliminary
showing of gross disproportionality. We caution, however, that the value of the drugs
can be a critical factor in considering the government’s evidence of just proportionality.
See United States v. Bieri, 68 F.3d 232, 238 (8th Cir. 1995), cert. denied, 116 S. Ct.
1876(1996)(comparing, among other things, value of forfeited property with total dollar
volume of criminal activity in determining whether forfeiture was constitutionally
excessive).

                                           -9-
Circuit explained its excessiveness analysis as two-pronged:                  (1) the
property must have been an “instrumentality” of the crime (i.e. a “nexus”
must exist between the property and the offense) and (2) the worth of the
property must be “proportional” (i.e. not excessive) to the culpability of
the owner.     The court further explained that, under the analysis, the
government bears the burden of showing a substantial connection between the
property and the offense (i.e. the first prong) and the claimant bears the
burden of showing “that forfeiture of his property would be grossly
disproportionate given the nature and extent of his criminal activity.”
Id. at 985 (citing Zumirez for the proposition that the claimant must show
gross disproportionality).     Thus, even if we were to accept the claimants’
argument that Zumirez sets forth the appropriate analysis, we would still
hold that the magistrate judge did not err in requiring that the claimants
make a showing of gross disproportionality.7


                                  III. Conclusion


      The    claimants   failed   to   make    a   prima   facie   showing   of   gross
disproportionality, and, therefore, the forfeiture in this case did not
violate the Eighth Amendment’s excessive fines clause.               Accordingly, we
affirm the order of the district court granting summary judgment in favor
of the government.




      7
       A substantial connection between the property and the offense was established
by the claimants’ stipulation of probable cause to seize the defendant property.

                                        -10-
A true copy.


      Attest:


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




                              -11-
