UNITED STATES OF AMERICA v. 1044 Cherry Drive, Elderon, Marathon County, Wisconsin et al

Filing 65

ORDER denying 57 motion to determine whether forfeiture violates 8th amendment; denying as moot 58 motion to stay execution of the forfeiture order. Signed by Chief Judge Barbara B. Crabb on 3/4/10. (krj)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------U N IT E D STATES OF AMERICA, O PIN IO N AND ORDER Plaintiff, 08-cv-564-bbc v. R E A L PROPERTY LOCATED AT 10 44 CHERRY DRIVE, TOWNSHIP O F ELDERON, MARATHON COUNTY, W IS C O N S IN , WITH ALL APPURTENANCES A N D IMPROVEMENTS THEREON; an d R E A L PROPERTY LOCATED AT 79 4 CHERRY DRIVE, TOWNSHIP O F ELDERON, MARATHON COUNTY, W IS C O N S IN , WITH ALL APPURTENANCES A N D IMPROVEMENTS THEREON, D efendan ts. --------------------------------------------In an order entered on February 9, 2010, I found that the defendant properties were subject to forfeiture because the properties' owner, claimant Randal Fenske, had used them to facilitate the manufacturing and distribution of marijuana, in violation of U.S.C. § 801 et seq . Judgment of forfeiture was entered on February 11, 2010. Fenske has now moved for

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vacation of the order of forfeiture, arguing that the court's order violates the excessive fines clau se of the Eighth Amendment, and for a stay of the order of forfeiture pending a decision on the first motion. Both motions will be denied. The parties agree that the total value of the two properties is about $191,589. Fenske m aintain s that a forfeiture of this amount is excessive when compared to the maximum fines to which he would have been subject under state law, which would have been $35,000 for his con viction s of one Class F felony and one Class I felony. Wis. Stat. § 939.50(3)(f) and (i) (m axim um fine for Class F felony is $25,000; maximum fine for Class I felony is $10,000). F en sk e is correct that the Eighth Amendment prohibits excessive fines as punishment for offenses and that it applies to his case, despite the fact that the government proceeded against him in a civil and not a criminal forfeiture proceeding. The forfeiture of Fenske's real property is properly characterized as punishment, both because it requires a finding that the pro perty has been used for a criminal purpose and because the applicable law governing civil forfeiture, 18 U.S.C. § 983, includes an innocent owner exception. United States v.

B a jak ajian , 524 U.S. 321, 328 (1998); see also United States v. Austin, 509 U.S. 601, 6212 2 (1993) (holding that review under excessive fines clause was proper for civil forfeitures of real property used to facilitate drug crime; forfeiture provision focused on culpability of owner an d included innocent owner exception). If the only factor to consider in determining the excessiveness of the forfeiture were

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the value of the properties compared to the maximum state fines for his offenses, Fenske m ight have some basis for his assertion that the forfeiture is excessive, but it is not the only fa cto r. The court may take into consideration the gravity of the offense. Bajakajian, 524 U .S . at 336-37. T h e investigation of Fenske's criminal conduct turned up approximately 84 marijuana plants growing in three separate sites on property that Fenske owned in Shawano County. At Fenske's 1044 Cherry Drive residence in Marathon County, law enforcement officers found packaging and weighing equipment, money laundering books, rolling papers and a m ariju an a grow room containing six marijuana plants. They found three miniature marijuana p lan ts between the residence and the garage that appeared to be "mother" plants used for cloning. In the garage, they found a large drying room containing approximately 185 pounds of freshly harvested marijuana, fans and humidifiers. In the 794 Cherry Drive residence, officers found a plastic bag containing 174.25 grams of marijuana, a marijuana grinder, a m etal scale, rolling papers and plastic bags containing small amounts of marijuana; 2.56 gram s, 46.83 grams and 3.98 grams. If the 185 pounds of freshly harvested marijuana were top quality, it could sell for as m uch as $4500 a pound. Presumably, the marijuana would weigh less than 185 pounds when dried and may not be the highest quality available. Nevertheless, it is reasonable to believe that Fenske could have sold it for at least $200,000. Moreover, the evidence was that this

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w a s not Fenske's first excursion into the business of marijuana manufacturing and d istrib utio n but that he had been engaged in this activity since at least 2003. The gravity of the crime is not out of proportion to the value of the two forfeited properties. I n

addition , the action for forfeiture was a federal proceeding. Federal criminal law makes co nduct such as Fenske's criminal under 21 U.S.C. §§ 801 et seq. Section 841(b)(1)(C) au th orize s a fine of up to $1,000,000 for offenses involving the amounts of marijuana handled by Fenske at his residence. The maximum fine reflects Congress's judgment about th e seriousness of crimes such as Fenske's. Legislative findings are a strong indicator of p ro p ortio n ality. Bajakajian, 524 U.S. at 336 ("judgments about the appropriate punishment fo r an offense belong in the first instance to the legislature") (citing Solem v. Helm, 463 U.S. 277, 290 (1983) ("Reviewing courts . . . should grant substantial deference to the broad au th ority that legislatures necessarily possess in determining the types and limits of pun ishm ents for crimes"). Under the circumstances of this case, which include Fenske's responsibility for grow ing, harvesting, drying, packaging and delivering large quantities of marijuana over an exten ded period of time, his use of the two properties for facilitating his criminal activity and C on gress's determination that the maximum fine for conduct such as Fenske's can be as much as $1,000,000, I cannot say that the forfeiture of properties worth approximately $1 91 ,58 9.1 5 is disportionate to the gravity of the crime and thus, excessive under the Eighth

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Am endm ent.

ORDER IT IS ORDERED that claimant Randal Fenske's motions for a determination that the fo rfeitu res ordered in this case violated the excessive fines clause of the Eighth Amendment is DENIED. His motion for a stay of execution of the forfeiture order is DENIED as moot. E n tered this 4 t h day of March, 2010. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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