No. 98-1998
In the Supreme Court of the United States
KENNETH WITHROW AND FRANKLIN WITHROW, PETITIONERS
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
JAMES K. ROBINSON
Assistant Attorney General
DANIEL S. GOODMAN
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTIONS PRESENTED
1. Whether petitioner Kenneth Withrow lacks standing to challenge the forfeiture
of the defendant real property because he is not the true owner of the property.
2. Whether the forfeiture of the defendant real property, which petitioner
Franklin Withrow used to facilitate the illegal manufacture of marijuana,
violates the Excessive Fines Clause of the Eighth Amendment.
3. Whether petitioner Franklin Withrow's marijuana offense is punishable
by more than one year's imprisonment.
In the Supreme Court of the United States
No. 98-1998
KENNETH WITHROW AND FRANKLIN WITHROW, PETITIONERS
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINION BELOW
The order of the court of appeals (Pet. App. 1a-2a) is unpublished, but
the decision is noted at 117 F.3d 1433 (Table).
JURISDICTION
The judgment of the court of appeals was entered on June 16, 1997. A petition
for rehearing was granted in part and denied in part on March 10, 1999 (Pet.
App. 50a-51a). The petition for a writ of certiorari was filed on June 8,
1999. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
In this civil in rem proceeding, the United States sought the forfeiture
of a parcel of real property that it alleged was used by petitioner Franklin
Withrow to commit or to facilitate the illegal manufacture of marijuana.
Following a bench trial, the district court ordered the forfeiture of the
defendant property. Pet. App. 20a-49a. The district court denied petitioners'
motion for reconsideration (id. at 3a-17a) and ordered the United States
to receive the forfeited property (id. at 18a-19a). The court of appeals
affirmed. Id. at 1a-2a. Nearly two years later, the court of appeals granted
a petition for rehearing in part and denied it in part. Id. at 50a-51a.
1. On November 17, 1993, the United States filed a verified complaint for
the forfeiture of approximately five acres of real property, pursuant to
21 U.S.C. 881(a)(7). Pet. App. 21a, 24a. Meanwhile, on approximately the
same date, a Georgia grand jury indicted petitioner Franklin Withrow for
unlawfully manufacturing marijuana and unlawfully possessing marijuana.
Id. at 27a. Franklin Withrow pleaded guilty to the possession charge and
was incarcerated for nine months. Ibid.
The federal forfeiture complaint alleged that petitioner Franklin Withrow
used the defendant property to facilitate his manufacture of marijuana.
Pet. App. 24a; C.A. App. Tab 1. In particular, the complaint alleged that
surveillance film showed Franklin Withrow fertilizing and harvesting marijuana
near his residence on the defendant property. Compl. para. 9; C.A. App.
Tab 1, at 4. The complaint further alleged that, during the execution of
a search warrant at Franklin Withrow's residence, agents seized marijuana
plants, layers of drying marijuana, and plastic bags of marijuana, as well
as tools and fertilizer used in the cultivation of marijuana. Compl. para.
12; C.A. App. Tab 1, at 4-5.
2. a. Following a bench trial, the district court concluded that the defendant
property should be forfeited. The court's forfeiture order, filed on June
6, 1996, contained detailed findings of fact and conclusions of law. Pet.
App. 20a-49a.
Initially, the court addressed the related questions of who owned the defendant
property and who has standing to contest the forfeiture. The court found
that, although the property was titled in the name of petitioner Kenneth
Withrow, who is petitioner Franklin Withrow's father, Kenneth Withrow never
exercised any dominion or control over the property. Pet. App. 25a, 36a.
Kenneth Withrow never lived on the property, the court found, and Franklin
Withrow lived on the property since 1981 without paying any rent to Kenneth
Withrow. Id. at 26a-27a, 35a, 39a. Moreover, Franklin Withrow paid for the
utilities on the property, purchased homeowner's insurance for the property,
filed insurance claims in connection with the property, and held himself
out to the world as owner of the property. Id. at 26a, 28a-30a, 36a, 40a.
The court explained that, under Georgia law, Franklin Withrow became the
owner of the property by gift after seven years of exclusive possession
without paying rent to his father. Id. at 41a (citing Ga. Code Ann. §
44-5-85 (Michie 1991) and Georgia case law). The court therefore concluded
that Kenneth Withrow lacks standing to contest the forfeiture. Id. at 42a.
Rather, the court concluded, "Franklin Withrow is in fact the true
owner of the defendant property and has standing in that capacity"
to challenge the forfeiture. Id. at 48a.
Turning to the merits, the district court found that "Franklin Withrow
used the defendant real property to facilitate his manufacture of marijuana."
Pet. App. 24a. The court elaborated that "Franklin Withrow grew marijuana
on the defendant property and openly stored and dried marijuana throughout
the house on the defendant property-even hanging it from a mounted deer
head in the living room." Id. at 40a. The court noted that the government's
evidence supporting "probable cause to believe the defendant real property
was used or intended to be used to facilitate the manufacture, sale and/or
distribution of marijuana" was "unrebutted," and it concluded
that the property was subject to forfeiture under Section 881(a)(7). Id.
at 48a. The court therefore held that the property "shall be forfeited
to the United States unless claimant can prevail upon his [excessive fines]
claim," on which the court requested further briefing. Id. at 49a.
See also id. at 4a n.1 (explaining that the court had erroneously referred
to a "double jeopardy" claim but had meant an "excessive
fines" claim).
b. On September 20, 1996, the district court denied petitioners' motion
for reconsideration. Pet. App. 3a-7a, 16a-17a. Petitioners contended that
the real property was not subject to forfeiture under Section 881(a)(7)
because Franklin Withrow's marijuana offense is not "punishable by
more than one year's imprisonment." Id. at 5a. The district court explained
that, under 21 U.S.C. 841(b)(1)(D), the manufacture of less than 50 kilograms
of marijuana is punishable by "a term of imprisonment of not more than
5 years." Pet. App. 6a. The court further noted that, under the Sentencing
Guidelines, manufacture of even small amounts of marijuana can result in
a sentence of more than one year, depending on such factors as the defendant's
criminal history. Id. at 6a-7a. And, finding that Franklin Withrow "manufactured
22.9 ounces or some 649 grams of marijuana in 1993," the court determined
that, even if it were to look to "the actual sentencing guideline range"
that would be applicable to Franklin Withrow rather than to the statutory
range, his offense would still be "'punishable' by more than one year
in prison." Id. at 7a.
c. In the September 20, 1996, order, the district court also rejected petitioners'
claim that the forfeiture was an excessive fine. Pet. App. 8a-17a. The court
recognized that the determination whether the fine was "excessive"
required it to consider whether "the severity of the fine" was
"proportional[]" to "the seriousness of the underlying offense."
Id. at 14a. The court found that the defendant property had "a fair
market value of $121,000." Id. at 8a. Although the "street market
value" of the marijuana seized from Franklin Withrow's house was only
$3500 (id. at 12a), the court concluded that "manufacture of 22.9 ounces
of marijuana was sufficiently serious, in and of itself, to warrant the
instant forfeiture." Id. at 15a. In that regard, the court noted that
the federal statute prohibiting the manufacture of controlled substances
authorizes a fine of up to $250,000 for the manufacture of that amount of
marijuana. Ibid. See 21 U.S.C. 841(b)(1)(D). Moreover, the court concluded
that, because petitioner Franklin Withrow "manufactured marijuana with
the intent to distribute it," he is "the most culpable of all
types of drug offenders." Pet. App. 14a; see also id. at 9a, 11a-12a.
The district court added that "the obvious sophistication" of
Franklin Withrow's "manufacturing techniques supports the inference
that he was an experienced marijuana grower." The court also noted
that Franklin Withrow had manufactured marijuana in 1989, as well as in
1993. Pet. App. 15a-16a. Consequently, the court reasoned, Franklin Withrow
"posed a greater danger to society than someone who had merely grown
one batch of marijuana." Id. at 16a. Thus, the court concluded that
the forfeiture of his property "valued at $121,000" was "not
an excessive fine." Ibid.
3. On June 16, 1997, the court of appeals affirmed in an unpublished order.
Pet. App. 1a-2a. Petitioners filed a petition for rehearing. On March 10,
1999, the court of appeals granted the petition "as to the question
of whether the seizure of the property at issue violated the Fifth Amendment
Due Process Clause, and, if so, whether as a result of the seizure the appellants
were deprived of rents they would have received from their property."
Id. at 51a. The court of appeals remanded for reconsideration in light of
United States v. 408 Peyton Road, 162 F.3d 644 (11th Cir. 1998) (en banc),
cert. denied, 119 S. Ct. 1500 (1999). Pet. App. 50a-51a. In all other respects,
the court of appeals denied the petition for rehearing. Id. at 51a.
ARGUMENT
1. Petitioners contend that the decisions of the district court and the
court of appeals that Kenneth Withrow lacks standing to contest the forfeiture
of the real property "conflict with the United States Constitution,
Article III and the court of appeals' other decisions regarding what constitutes
standing to assert an innocent owner defense to forfeiture." Pet. 10.
That contention lacks merit.
The district court, affirmed by the court of appeals, correctly held that
Kenneth Withrow lacks standing to contest the forfeiture. The district court
held that, under Georgia law as applied to the facts of this case, Franklin
Withrow became the owner of the property after seven years of exclusive
possession without paying rent to his father. Pet. App. 41a. Moreover, the
court found that Kenneth Withrow "never exercised any dominion or control
over the defendant property." Id. at 36a. "[P]ossession of bare
legal title by one who does not exercise dominion and control over the property
is insufficient to establish standing to challenge a forfeiture" under
21 U.S.C. 881. United States v. Real Property and Improvements Located at
5000 Palmetto Drive, 928 F.2d 373, 375 (11th Cir. 1991); accord United States
v. 526 Liscum Drive, 866 F.2d 213, 217 (6th Cir. 1988); United States v.
One 1945 Douglas C-54 (DC-4) Aircraft, 604 F.2d 27, 28-29 (8th Cir. 1979),
cert. denied, 454 U.S. 1143 (1982). See Pet. App. 36a-37a (explaining that
claimant must establish both Article III and statutory standing), 38a (citing
cases requiring the exercise of dominion and control for statutory standing).
Petitioners' suggestion (Pet. 10) that the decisions in this case conflict
with the court of appeals' prior decision in Palmetto Drive is incorrect.
Although the court of appeals upheld the standing of the legal title holder
in Palmetto Drive to contest the forfeiture in that case, the different
outcomes in the two cases reflect differences in "the testimony presented
and the district court's findings of fact," 928 F.2d at 375. In Palmetto
Drive, the court of appeals was "not inclined to disturb" the
district court's decision that the title holder retained dominion and control
over the property but had agreed to allow her son to live on the property
free of rent until she retired provided he paid the bills and did nothing
illegal on the premises. Ibid. In the instant case, the court of appeals
affirmed the district court's decision that petitioner Kenneth Withrow never
exercised dominion and control over the property and that he "gave
the defendant property to Franklin Withrow." Pet. App. 36a; see also
id. at 41a. That fact-bound determination, based on Georgia law, does not
warrant review by this Court. Moreover, if any inconsistency did exist between
the decision of the Eleventh Circuit in this case and its decision in Palmetto
Drive, that inconsistency should be resolved by the court of appeals rather
than this Court. See Wisniewski v. United States, 353 U.S. 901 (1957) (per
curiam).
2. Petitioners also contend (Pet. 8-9) that the forfeiture of the defendant
property is an "excessive fine" under the Eighth Amendment. Relying
on United States v. Bajakajian, 524 U.S. 321 (1998), petitioners compare
the value of the marijuana found at the defendant property on the date the
search warrant was executed ($3500) with the value of the forfeited real
property ($121,000) and conclude that the forfeiture was "clearly excessive."
Pet. 8. That conclusion is incorrect.
The district court, affirmed by the court of appeals, correctly held that
the forfeiture in this case does not violate the Eighth Amendment. The district
court recognized that the appropriate inquiry under the Amendment's Excessive
Fines Clause is whether the fine is "excessive" considering the
"proportionality" of "the severity of the fine" and
"the seriousness of the underlying offense." Pet. App. 13a-14a;
accord Bajakajian, 524 U.S. at 334 ("a punitive forfeiture violates
the Excessive Fines Clause if it is grossly disproportional to the gravity
of a defendant's offense"); see Austin v. United States, 509 U.S. 602,
604 (1993) (forfeiture under Section 881(a)(7) is subject to the limitations
of the Excessive Fines Clause).
Assessing the gravity of the offense, the district court found that petitioner
"Franklin Withrow used the defendant real property to facilitate his
manufacture and distribution of marijuana." Pet. App. 13a. In the district
court's view, commission of that crime made him "the most culpable
of all types of drug offenders," because the crime consisted of making
and marketing the drugs. Id. at 14a. Taking into account that the street
value of the marijuana at issue in this case is approximately $3500 (id.
at 12a) and the value of the forfeited property is $121,000 (id. at 8a),
the district court concluded that "manufacture of 22.9 ounces of marijuana
[is] sufficiently serious, in and of itself, to warrant the instant forfeiture."
Id. at 15a. That case-specific determination is consistent with determinations
in similar cases and does not warrant this Court's review. See, e.g., United
States v. 817 N.E. 29th Drive, 175 F.3d 1304, 1307 (11th Cir. 1999) (upholding
forfeiture under Section 881(a)(7) "of property valued at nearly $70,000
for drug sales totaling only $3,250"); United States v. Real Property
Known as 415 East Mitchell Avenue, 149 F.3d 472, 477 (6th Cir. 1998) (upholding
forfeiture under Section 881(a)(7) of home valued at $220,000 in connection
with marijuana offenses involving "approximately $20,000 worth of contraband").
Petitioners incorrectly suggest (Pet. 8-9) that the decision in this case
is inconsistent with this Court's decision in Bajakajian, which held that
the forfeiture of $357,144 in cash was "grossly disproportional"
to the respondent's crime of failing to report that he was transporting
more than $10,000 out of the country (see 31 U.S.C. 5316(a)(1)(A)) and therefore
violated the Excessive Fines Clause. 524 U.S. at 324. As this Court did
in Bajakajian (id. at 336-337), the district court here compared the severity
of the fine with the seriousness of the underlying offense to determine
whether they were proportional (Pet. App. 14a). Because the crime here was
more serious and the fine less severe than in Bajakajian, the district court
reached a different result. Unlike the crime in Bajakajian, which "was
solely a reporting offense," 524 U.S. at 337, petitioner Franklin Withrow's
crime was a "serious" drug manufacturing offense. See Pet. App.
14a-15a. And, while the harm that the respondent in Bajakajian caused was
"minimal," 524 U.S. at 339, the district court found that Franklin
Withrow is "the most culpable of all types of drug offenders"
(Pet. App. 14a) and an "experienced marijuana grower" (id. at
15a) who "pose[s] a greater danger to society than someone who had
merely grown one batch of marijuana" (id. at 16a). Moreover, the value
of the forfeited property in Bajakajian was nearly three times the value
of the forfeited property in this case. Compare 524 U.S. at 324 with Pet.
App. 8a. Thus, nothing in Bajakajian calls into question the court of appeals'
determination (in affirming the district court) that petitioner's fine was
proportional to the offense that he committed.
3. Finally, petitioners argue (Pet. 9-10) that the defendant property should
not be subject to forfeiture under 21 U.S.C. 881(a)(7) because (they assert)
Franklin Withrow's marijuana offenses are not "punishable by more than
one year's imprisonment." As the district court correctly determined,
there are "several reasons" why petitioners "are incorrect"
in claiming that "Franklin Withrow's behavior does not satisfy this
prerequisite." Pet. App. 5a.
First, under 21 U.S.C. 841(b)(1)(D), Franklin Withrow's marijuana manufacturing
operation would be punishable by a term of imprisonment of up to five years.
See Pet. App. 6a. Second, under the Sentencing Guidelines, "manufacturing
small amounts of marijuana is 'punishable' by imprisonment for over a year,"
depending upon such factors as the defendant's criminal history category.
See id. at 6a-7a. Third, the district court found that "even were the
issue determined by the actual sentencing guideline range assignable to"
petitioner Franklin Withrow, his offense would be "'punishable' by
more than one year in prison." Id. at 7a. The district court found
that "Franklin Withrow's conduct in 1993 is actually more serious than
it would have been if he was new to the world of illicit drugs and had not
previously demonstrated an affinity for marijuana, a willingness to break
the law, and a proficiency for doing so." Id. at 16a n.6. The fact
that petitioner Franklin Withrow actually received a sentence of only nine
months' imprisonment on the state charge to which he pleaded guilty does
not mean that his marijuana offenses are not "punishable" by more
than one year's imprisonment as a matter of federal law.
Petitioners offer no authority that suggests that Franklin Withrow's marijuana
offenses are not punishable by more than one year's imprisonment. The only
case they cite is Bajakajian, which involved a currency reporting violation
and a different forfeiture statute. See Pet. 9-10. In any event, the district
court's determination, affirmed on appeal, that petitioner Franklin Withrow's
crime was punishable by more than one year's imprisonment is a case-specific
holding that does not warrant this Court's review.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
JAMES K. ROBINSON
Assistant Attorney General
DANIEL S. GOODMAN
Attorney
SEPTEMBER 1999