United States v. Susan D. Bieri Leonard Bieri, III

68 F.3d 232
CourtCourt of Appeals for the Eighth Circuit
DecidedDecember 7, 1995
Docket95-1234
StatusPublished
Cited by42 cases

This text of 68 F.3d 232 (United States v. Susan D. Bieri Leonard Bieri, III) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Susan D. Bieri Leonard Bieri, III, 68 F.3d 232 (8th Cir. 1995).

Opinions

HANSEN, Circuit Judge.

This is an appeal after remand of a criminal forfeiture case under 21 U.S.C. § 853(a)(2) (requiring forfeiture of the whole of a person’s property when that person used any part or all of it to commit or to facilitate drug trafficking offenses). In our prior opinion, we reversed the district court’s order to forfeit only part of the Bieris’ farm and remanded for further proceedings, concluding that the whole farm should be forfeited unless on remand the district court found that forfeiture of the whole violates the Excessive Fines Clause of the Eighth Amendment. See United States v. Bieri, 21 F.3d 819 (8th Cir.), cert. denied, — U.S. -, 115 S.Ct. 208, 130 L.Ed.2d 138 (1994). On remand, the district court ordered no forfeiture, and the government now appeals. We reverse and remand with directions to the district court to enter an order forfeiting the entire farm.

I. Background.

Susan and Leonard Bieri were charged in count I, count II, and count III of a superseding indictment with federal drug trafficking and firearm offenses and were charged in count IV with using real property to commit or to facilitate their drug trafficking offenses (criminal forfeiture). Following a bench trial, the district court convicted the Bieris on counts I and II (the drug trafficking offenses). We affirmed the Bieris’ convictions and sentences on appeal. See Bieri, 21 F.3d at 825.

The district court also ordered criminal forfeiture of some of the real property charged in count IV, specifically finding that the parcel of land where the defendants’ house and barn are located (tract four of the four-tract dairy farm) was used to commit or to facilitate the commission of the Bieris’ drug trafficking offenses. See 21 U.S.C. § 853(a)(2). The district court ordered forfeiture of only tract four. In a separate appeal, we reversed the district court’s order of forfeiture and remanded for further proceedings. United States v. Bieri, 21 F.3d 819 (8th Cir.), cert. denied, - U.S. -, 115 S.Ct. 208, 130 L.Ed.2d 138 (1994). We noted that section 853(a)(2) mandates forfeiture of the whole “property” if any part of it is used to commit or to facilitate the drug trafficking offense. Id. at 823. We then determined that “property” under section 853(a)(2) is best defined not by historic land descriptions, but by the instruments that created the defendant’s interest in the property. Id. at 823-24. Because the Bieris acquired the whole, four-tract, contiguous farm at a single time and in a single instrument, we concluded that the farm is one piece of “property” for purposes of criminal forfeiture and that the district court erred by considering each historically-described tract separately. Id. at 824. We held that section 853(a)(2), in this case, mandates forfeiture of the entire farm because part of it was used to commit or to facilitate a drug trafficking offense. Id.

We also noted in our prior opinion that criminal forfeiture is a fine within the meaning of the Eighth Amendment’s Excessive Fines Clause. Id. (citing Alexander v. United States, — U.S. -, -, 113 S.Ct. 2766, 2775-76, 125 L.Ed.2d 441 (1993)). Accordingly, we determined that the district court must consider whether the criminal forfeiture amounts to an excessive fine; the district court could order forfeiture of less than the whole if necessary to tailor the forfeiture “to fit within the broad boundaries of constitutional proportionality.” Id. In conclusion, we provided the district court with the following instructions:

[We] remand to the district court for the entry of a judgment forfeiting the entire farm, unless the district court on remand determines that the forfeiture of the entire farm amounts to a constitutionally excessive fine under the Eighth Amendment, in which case the district court should enter such judgment of forfeiture as it deems in accord with the Constitution.

Id. at 825.

On remand, the district court held a hearing and took additional evidence. At the [235]*235conclusion of the hearing, the district court ruled from the bench, declaring no forfeiture whatsoever in this case. The district court first noted that it would have ordered probation in this case had it found a basis to do so under the Sentencing Guidelines, but because it found no basis for departure, it was required to sentence Susan Bieri to 51 months of imprisonment and Leonard Bieri to 57 months. In the district court’s opinion, these terms of imprisonment are “enough penalty for the criminal activity associated with the property.” (Hr’g Tr., Dec. 20, 1994, at 87.) The district court found it significant that the property was used as a residence as well as a business and that two minor children “are dependent somewhat upon that residence.” (Id.) In conclusion, the district court stated as follows:

I don’t know why the Eighth Circuit sent the case back. There’s no evidence as to the value of any particular tract — there were four tracts. Tract four where the house and barn was [sic] located was forfeited at the time of sentence and I felt that was appropriate because that’s where the drugs were being stored. Obviously that was not appropriate. As a normal rule, any time a fine is imposed within the statute or no fine is imposed, it’s discretionary with the trial court. I don’t know whether that’s true in regard to a forfeiture or not but I’m going to test it.
It’s the judgment of the Court that no forfeiture of the defendants’ farm be declared in this case.

(Id. at 88-89.) The following day, the district court filed a written order supplementing the findings made at the hearing. In the written order, the district court found “that the reasonable value of the defendants’ farm is not less than $245,000,” and “that it would be in the best interests of the children that they be permitted to remain at the residence which is located on the farm.” (Appellant’s App., Tab S, at 79.)

The government appeals, contending that the district court failed to follow the instruction of our prior opinion either to forfeit the whole farm, or in the alternative, to forfeit such portion of the farm as the Constitution will allow upon express factual findings supporting a determination that forfeiture of the whole would constitute an excessive fine.

II. Discussion.

The express basis for the district court’s decision to order no forfeiture upon remand was the district court’s determination that forfeiture is discretionary, akin to the decision of whether to award a statutory fine. We do not agree with this assessment.

To determine whether property is forfeitable under 21 U.S.C. § 853(a)(2),1 the district court’s only inquiry is whether the defendant used the property “in any manner or part” to commit or to facilitate a drug trafficking offense.

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Bluebook (online)
68 F.3d 232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-susan-d-bieri-leonard-bieri-iii-ca8-1995.