United States v. Bochnewych, John ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-4082
United States of America,
Plaintiff-Appellee,
v.
5 S 351 Tuthill Road, Naperville, Illinois,
Defendant,
Appeal of: John Bochnewych,
Claimant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern
Division.
No. 97 C 8887--James F. Holderman, Judge.
Argued May 15, 2000--Decided December 5, 2000
Before Flaum, Chief Judge, and Cudahy and
Evans, Circuit Judges.
Cudahy, Circuit Judge. On September 27,
1997, DuPage County Sheriff’s Deputy
Lance Todd responded to a complaint of
barking dogs on Tuthill Road in
Naperville, Illinois. At the address
reported, he found a dilapidated house.
Deputy Todd called the sheriff’s office
and learned that Peter Boch was the owner
of the property at 5 S 351 Tuthill Road.
Boch had been arrested and convicted for
possession of cannabis earlier that year.
Claiming a concern for the health of the
occupants, Deputy Todd and Deputy James
Mendrick entered the residence. Inside,
the deputies found ten closed ziplock
bags containing a green leafy substance,
another ziplock bag containing partially
opened ziplock bags also holding a green
leafy substance, a scale, a loaded Marlin
30/30 lever action rifle and about
fifteen discharged shotgun cartridges. In
the basement they found three plant
growing lights hanging from the ceiling,
and a dozen ceramic pots filled with soil
and connected to canisters of carbon
dioxide gas.
Later that day the officers obtained and
executed a search warrant for the house.
They seized several bags of leafy
material, two containers of plant food,
twenty-three plant pots with soil,
timers, several plant growing lamps,
packaging materials, a triple beam scale,
seeds packaged in small containers, and
an air heater. The leafy material was
determined upon analysis to be eight
pounds of marijuana. The quantity of
marijuana and paraphernalia found in the
home were determined to be consistent
with manufacturing and distributing
marijuana.
On December 23, 1997, the United States
filed a verified complaint for forfeiture
under 21 U.S.C. sec. 881(a)(7). The
property to be forfeited may have looked
like a typical residence to the average
viewer. But it is, legally, unique in
ways that complicated the forfeiture
process. First, the property is legally
described as "Lots 14 and 15 in Block 3
of Arthur T. McIntosh Co.’s DuPage
Farms," and each lot, or parcel, bears a
different permanent index number in the
DuPage County tax assessment records. The
residence is located on parcel number 08-
08-202-012. Parcel 08-08-202-013 is
vacant. The two parcels are taxed
separately.
Further, although Peter Boch purchased
both parcels together, and paid $25,000
to his wife upon their divorce to obtain
her interest in the property, Boch had
since tried to distance himself from the
vacant half of the land. On October 8,
1985, Boch placed the vacant half of the
land in trust, and that same day
transferred his interest in the trust to
his father, John Bochnewych. A Naperville
bank serves as trustee. Shortly after the
trust was created, in December of 1985, a
confidential informant identified Boch as
a multi-kilogram distributor of cocaine
in Illinois.
The relevant terms of the trust state:
The interest of each and every
beneficiary hereunder and of all persons
claiming under them or any of them shall
be only in earnings, avails, and proceeds
arising from the sale or other
disposition of said real estate and each
interest is hereby declared to be
personal property, and no beneficiary
hereunder shall have any title or
interest, legal or equitable, in or to
said real estate as such, but only an
interest in the earnings, avails and
proceeds thereof as aforesaid.
The trust instrument further states that
the trustee shall have, among other
things:
[f]ull Power and authority . . . to
improve, manage, protect, and subdivide
said premises or any part thereof . . .
to contract to sell, to grant options to
purchase, to sell on any terms, to
convey, either with or without
consideration, to convey said premises or
any part thereof to a successor or
successors in trust and to grant to such
successor or successors in trust all of
the title, estate, powers and authorities
vested in said trustee, to donate, to
dedicate, to mortgage, pledge or
otherwise encumber, said property, or any
part thereof, to lease said property or
any part thereof from time to time . . .
.
Gov’t Resp. to Claimant’s Motion to Quash
and Suppress, Ex. 4A (hereinafter Trust
Agreement).
Boch possesses all of the deeds,
contracts, insurance policies and other
official documents relating to the
property. Boch secured a mortgage on the
property and made the payments. Boch also
paid the taxes and utilities on the
property. Additionally, Boch permitted
friends and acquaintances to store their
vehicles on the vacant land without
securing his father’s permission for them
to do so.
Bochnewych had not been inside the house
on the defendant property for
approximately twenty years and believes
it to have been vacant since 1994.
Bochnewych stated that he does not know
any details of the mortgage. Bochnewych
is unaware of the dates of any leases or
rentals of the property, and the only
information he could provide was, "I know
[Peter] rented [it]." Appellant’s Motion
to Dismiss, Ex. B at 17 (hereinafter
Bochnewych Dep.). Bochnewych never
received any rent on the property.
Bochnewych stated that he does not know
what obligations or rights Boch retained
after placing the property in trust.
Bochnewych claims to have known nothing
about the illegal activity on the
property. When asked whether he did
anything to assure that the use of the
property was legal Bochnewych stated, "I
don’t know that. It’s all [Peter’s]." Id.
at 60.
In October of 1997, Boch contracted to
sell the property to William and Mayling
Tein. The contract did not mention
Bochnewych or the trust and Bochnewych
did not sign the agreement. On the other
hand, Bochnewych did execute, along with
Boch, a direction to the trustee to
convey the property to William Tein. The
sale was never completed because of a
lien on the property.
Bochnewych contested the forfeiture,
claiming he was the owner of the vacant
parcel, and an innocent owner at that.
Based on his professed innocent
ownership, Bochnewych moved to quash the
search warrant regarding the property at
5 S 351 Tuthill Road and to suppress the
evidence obtained by the search. The
district court denied the motion.
The parties filed cross motions for
summary judgment. The district court
denied Bochnewych’s motion for summary
judgment due to his failure to submit a
Local Rule 12(M) statement. Because of
this failure, the district court deemed
the facts in the government’s Local Rule
12(M) statement admitted. Based on those
facts the district court found that
Bochnewych lacked Article III standing to
contest the forfeiture and granted the
government’s motion for summary judgment.
The district court denied Bochnewych’s
motion for reconsideration and made a
final entry of judgment of forfeiture.
Bochnewych appeals from the judgment
granting the government’s motion for
summary judgment and the denial of
Bochnewych’s motion for summary judgment.
The decree of forfeiture to the United
States was made subject to the interests
of Allegiant Bank, FSB, the holder of a
mortgage interest in the property, and
subject to the interest of the DuPage
County Treasurer in the unpaid real
estate taxes on the property.
I. Article III Standing
We must first resolve whether
Bochnewych, as the beneficiary of a land
trust, has standing to challenge the
government’s effort to forfeit the land
that is the subject of the trust.
Bochnewych’s standing to contest the
forfeiture is a question of law, which we
review de novo. See United States v. 5000
Palmetto Drive, 928 F.2d 373, 375 (11th
Cir. 1991).
In order to decide whether Bochnewych’s
interest in the land gives rise to
standing, we must clarify what that
interest is. State law defines and
classifies property interests for
purposes of the forfeiture statutes,
while federal law determines the effect
of the property interest on the
claimant’s standing. See United States v.
Lester, 85 F.3d 1409, 1412 (9th Cir.
1996). The garden variety Illinois land
trust gives trust beneficiaries "full
powers of direction and control," and
deems these rights to be personal
property. Quinn v. Pullman Trust & Sav.
Bank, 98 Ill.App.2d 402, 404 (1968). Had
Boch set up such a trust here, the case
would be easier because Bochnewych would
essentially be the owner of the property.
That was the situation the Fourth Circuit
confronted in United States v. Santoro,
866 F.2d 1538 (4th Cir. 1989). Upon
divorcing his wife, a man conveyed his
one-half interest in property to his wife
with the understanding that it would be
used for the maintenance and education of
the children. See id. at 1544. The court
concluded that the children were
beneficial owners of one-half of the
property, and therefore had standing. See
id. at 1545.
But Boch appears to have established an
unorthodox land trust. While beneficiary
Bochnewych has an interest in the
"earnings, avails, and proceeds arising
from the sale or other disposition of
said real estate," the beneficiary does
not have the power to manage, lease or
sell the property. Moreover, a trust
provision permits the trustee to sell the
property "on any terms, with or without
consideration." So unlike the children in
Santoro, whose trustee presumably had an
obligation to maximize the proceeds from
the land, Bochnewych’s trustee may sell
the land for a peppercorn if he wishes.
It is not exactly right, therefore, to
call Bochnewych a beneficial owner of the
land. This was essentially the basis for
the district court’s decision; it
reasoned that because Bochnewych did not
have legal or equitable title to the real
estate itself, he could not have
standing. See Mem. at 8-9. But the fact
remains that should the property be sold
for any amount of money, that money is
due to Bochnewych. So Bochnewych’s
interest is a right to future proceeds of
unknown value. Does that interest
establish that Bochnewych has Article III
standing? We answer that question by
reviewing the purpose of Article III
standing.
Under Article III of the Constitution,
the federal judicial power extends only
to "cases" or "controversies." This limi
tation on judicial power assures that
courts play a "proper--and properly
limited--role . . . in a democratic
society." Family & Children’s Ctr., Inc.
v. School City of Mishawaka, 13 F.3d
1052, 1058 (7th Cir. 1994) (quoting Warth
v. Seldin, 422 U.S. 490, 498 (1975)). To
satisfy Article III, a plaintiff must
allege (1) an immediate threat of injury;
(2) fairly traceable to the defendant’s
conduct; that (3) a favorable federal
court decision likely would redress or
remedy. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561-62 (1992).
There is no question that prongs two and
three are met in this case. The dispute
is whether Bochnewych, who does not own
or control the land or its sale price,
faces an immediate threat of injury if
the land is forfeited. We have described
the Article III standing requirements as
"undemanding." Family & Children’s Ctr.,
14 F.3d at 1058. It is instructive in
this case to review the injuries that are
not sufficiently "concrete or
particularized" to establish standing.
Id. at 560-61. We have stated that a
plaintiff who has merely an "intellectual
or academic curiosity" in the outcome of
a suit does not have standing. S. E. Lake
View Neighbors v. Dep’t of Hous. and
Urban Dev., 685 F.2d 1027, 1033 (7th Cir.
1982). "Purely psychological harm"
suffered by a plaintiff is not sufficient
to establish standing. Freedom From
Religion Found., Inc. v. Zielke, 845 F.2d
1463, 1467 (7th Cir. 1988). Similarly,
"simple indignation," or an impact on
"one’s opinions, aspirations or ideology"
do not suffice to establish standing.
Harris v. City of Zion, 927 F.2d 1401,
1405 (7th Cir. 1991) (quoting in part
People Organized for Welfare and
Employment Rights v. Thompson, 727 F.2d
167, 171 (7th Cir. 1984)). But, if the
Naperville residence is forfeited,
Bochnewych will suffer an injury that is
more than intellectual, psychological or
ideological. He will lose the opportunity
to receive the proceeds, if and when the
land is sold. We think this is more than
enough to give him an actual stake in the
outcome of the suit, and to make his
dispute with the government a genuine
"case or controversy" justifying our
exercise of judicial review.
We recognize that this conclusion may
appear to be in tension with those of
some sister circuits, which have held
that in the unique setting of drug-
related forfeiture cases, a plaintiff
does not have a stake in the outcome of
the dispute--even if he is ostensibly the
owner--unless he exercises "dominion and
control" of the res. See, e.g., United
States v. 526 Liscum Dr., 866 F.2d 213,
217 (6th Cir. 1989); United States v. 900
Rio Vista Blvd., 803 F.2d 625, 630 (11th
Cir. 1986); United States v. One 1945
Douglas C-54 (DC-4) Aircraft, 604 F.2d 27(8th Cir. 1979). Using this "dominion and
control" formulation, the Ninth Circuit
held in a case similar to the one before
us today that where a man gave his
father-in-law title to land, but
continued to pay property taxes, to
manage the rental property and to control
access to the land himself, the father-
in-law did not have a sufficient interest
to give rise to standing. See United
States v. Vacant Land, 15 F.3d 128, 130
(9th Cir. 1993). The court explained that
"[t]hese cases turn on a finding that the
title holder is a strawman holding
nominal title as a subterfuge for a drug
trafficker, rather than being a true
owner of an interest in the property."
See id.As a matter of public policy, we can see
the reason for closing courts to these
claims of nominal owners, because they
are in furtherance of an illegal and
socially destructive purpose. But the
social imperatives at work in these cases
hardly justifies characterizing the
problem as one of constitutional
standing. We require a plaintiff to
demonstrate standing in order to assure
that we are refereeing an actual, rather
than a hypothetical, dispute. See Lujan,
504 U.S. at 560-61. Indeed, we police a
plaintiff’s standing precisely to ensure
that we are acting as a court, rather
than as "ombudsmen of the general
welfare," a role more properly ascribed
to Congress. Valley Forge Christian Coll.
v. Americans United for Separation of
Church and State, Inc., 454 U.S. 464, 487
(1982). It seems to us that in
scrutinizing a would-be forfeiture
plaintiff’s interest for evidence of
straw ownership, courts are not policing
their own exercise of power, but policing
those whom they perceive to be doing the
bidding of drug traffickers, by refusing
to provide an avenue of legal redress.
One might call it judicial abdication in
the service of judicial activism. Cf.
Marrese v. Am. Acad. of Orthopaedic
Surgeons, 726 F.2d 1150 (7th Cir. 1984)
(dissenting opinion).
The "dominion and control" inquiry as
applied to Bochnewych’s claim seems to
focus more on the prudential dimension of
standing than the "injury-in-fact"
dimension. Even under the former heading,
we think the more stringent test is
misguided on the present facts. The
legislative history of forfeiture law
"indicates that a rather expansive ’zone
of interests’ is protected by the
innocent owner provision." United States
v. U.S. Currency, $81,000, 189 F.3d 28(1st Cir. 1999). Moreover, we note that
both the Supreme Court and the Congress
have recognized the potentially draconian
reach of the civil forfeiture laws, in
the years since our sister circuits
adopted the "dominion and control" test
for forfeiture cases. In April of this
year, Congress passed the Civil Asset
Forfeiture Reform Act of 2000, which
requires the government to prove the
connection between the property to be
forfeited and the drug activity by a pre
ponderance of the evidence, rather than
to prove merely probable cause to believe
there is a connection. See Pub. L. No.
106-185, 114 Stat. 202 (2000). And
several years ago, the Supreme Court
issued a trilogy of opinions truncating
the long arm of civil forfeiture. See
United States v. James Daniel Good Real
Prop., 510 U.S. 43 (1993) (holding that
owners are entitled to court hearings
before government may seize allegedly
drug-tainted property); Austin v. United
States, 509 U.S. 602 (1993) (holding that
the Excessive Fines Clause applies to
civil forfeitures); United States v.
Parcel of Land Known as 92 Buena Vista
Ave., 507 U.S. 111 (1993) (upholding the
innocent owner defense). In light of the
other branches’ calls for rational
application of the useful tool of civil
forfeiture, we think it particularly
imprudent to adopt without a specific
reason a test that appears to increase
the harshness of the forfeiture remedy.
So we will hew to the traditional "actual
stake in the outcome" test in analyzing
whether Bochnewych has standing to
challenge the government in this case.
The facts suggest that he does have a
sufficient interest in the land to give
him an actual stake in the outcome of
this dispute, even though he may not own,
dominate or control the land.
Two cases are particularly instructive
in reaching this conclusion. In both, the
would-be plaintiff, like Bochnewych,
stood to gain money indirectly from the
outcome of a dispute between two other
parties. In both, we concluded that the
third party had standing to sue based on
the other parties’ dispute. In Family &
Children’s Ctr., Inc. v. Sch. City of
Mishawaka, 13 F.3d 1052 (7th Cir. 1994),
we held that a facility with physical
(but not legal) custody of children with
disabilities had standing to sue the
local school district for allegedly
withholding special education funds from
the children. Although the dispute was
properly between the children (or their
parents) and the school district, we held
that if the school district did turn over
funds for the children, the child care
facility would benefit financially, and
therefore it, too, had standing. See id.
at 1059. Similarly, in Amato v. Wilentz,
952 F.2d 742 (3d Cir. 1991), the Third
Circuit held that a county had standing
to sue the state’s chief justice for a
First Amendment violation when the chief
justice denied a movie company permission
to film in the county courthouse. The
Third Circuit agreed with the county that
although the chief justice directly hurt
the movie company, the county was
indirectly hurt because it lost out on
the $250,000 rental fee the movie company
had promised it. Therefore, the county
had a right to sue the chief justice.
"That is our standing. We want the
money," the county told the court. See
id. at 747 n.5.
Just so here. Although the facts before
us suggest that Peter Boch may have had
dominion and control of the vacant
property, that does not mean his father
had no stake in the outcome of the
forfeiture dispute. John Bochnewych has,
according to the terms of the trust, the
right to any proceeds realized from the
sale of the property. That is his
standing. He wants the money, or at least
the legal right to it should the property
be sold. Of course, we recognize that
Bochnewych may have extinguished that
right if he participated in or endorsed
his son’s drug operation. So the real
issue in this case is whether Bochnewych
can be implicated in the drug activity.
We think it best to confront the issue of
Bochnewych’s role in the offense head-on
rather than evade it by barring him from
the courthouse. We therefore reverse the
district court, and hold that Bochnewych
has standing to contest the government’s
forfeiture efforts in this case.
II. Severance of Land
This leaves us with the question whether
Bochnewych may block the forfeiture of
the vacant half of the land because it is
a separate parcel on which no drug
activity has occurred or because--even if
it was the site of drug activity--he is
an innocent owner. The district court did
not analyze these issues in its opinion,
since it decided Bochnewych did not have
standing. Indeed, Bochnewych himself
devoted just one paragraph of his six-
page motion for summary judgment to the
argument that the parcels were severable.
In its cross-motion for summary judgment,
the government never squarely addressed
the argument that the parcels should be
severed for forfeiture purposes. On
appeal, Bochnewych does not ask us to
decide this issue, but only asks that the
case be remanded for a trial on the
issue. The government urges us to affirm
the district court’s grant of summary
judgment in its favor. Summary judgment
is proper "if the pleadings, depositions,
answers to interrogatories and admissions
on file, together with the affidavits, if
any, show that there is no genuine issue
as to any material fact and that the
moving party is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(c). A
genuine issue of material fact exists for
trial when, in viewing the record and all
reasonable inferences drawn from it in a
light most favorable to the non-movant, a
reasonable jury could return a verdict
for the non-movant. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
The forfeiture statute broadly states
that "[a]ll real property, including any
right, title, and interest in the whole
of any lot or tract of land . . . which
is used, or intended to be used, in any
manner or part, to commit, or to
facilitate the commission of" a drug
offense is forfeitable. 21 U.S.C. sec.
881(a)(7). In a civil forfeiture
proceeding under the law in effect at the
time of this forfeiture, the government
must show probable cause that the
property is subject to forfeiture. Once
the government has made this showing,
which has been defined as "reasonable
grounds for belief of guilt, supported by
less than prima facie proof but more than
mere suspicion," United States v. 1982
Yukon Delta Houseboat, 774 F.2d 1432,
1434 (9th Cir. 1985), the burden shifts
to the claimant to prove by a
preponderance of the evidence that the
property was not unlawfully used or that
he did not know about or consent to the
illegal use. See United States v. 7715
Betsy Bruce Lane, 906 F.2d 110 (4th Cir.
1990).
In this circuit, we consider property
forfeitable if its connection to the
underlying drug transaction is "more than
incidental or fortuitous." United States
v. 916 Douglas Ave., 903 F.2d 490, 494
(7th Cir. 1990). However, we have stated
that our test is only semantically
distinguishable from the "substantial
connection" test used in other circuits.
See 916 Douglas Avenue, 903 F.2d at 494.
Therefore, we may survey cases inside and
outside our circuit for guidance in
determining whether the Boch property is
severable from the Bochnewych land held
in trust.
In United States v. Santoro, 866 F.2d
1538 (4th Cir. 1989), the court
considered farm property held by a single
owner (whose children were beneficial
owners of one-half the entire property by
virtue of a trust) bisected by a road and
taxed as two separate parcels. The legal
description of the property treated the
whole of the land as one unitary tract.
The drug transactions leading to
forfeiture had taken place on the smaller
of the two portions of the land, but the
government was permitted to forfeit all
of the land. The court reasoned that the
property was legally described as a
single tract, despite the existence of
the road and the fact that the two
portions were taxed separately. Further,
the land was held by a single owner who,
when she designed a trust to benefit her
children, placed the entire piece of
property in trust.
The scenario we confront today is
different enough that we cannot say as a
matter of law that this house and this
vacant lot were part of one unitary
property. DuPage County taxes the house
and the lot using two different
identification numbers. Even the legal
description of the property known as 531
S Tuthill Road refers explicitly to "Lots
14 and 15." Perhaps most critically, Boch
placed the vacant lot, but not the house,
in trust. This key fact distinguishes the
case sharply from Santoro, where the
owner placed the entire lot in trust.
Where the owner has treated the property
as unitary, it seems appropriate for the
court to do so. But here, owner Boch has
treated the two parcels as discrete,
retaining one and legally distancing
himself from the other. And we are
missing key facts that will likely help
the district court decide whether the
parcels are truly unitary or truly
divisible. In particular, there is no
indication in the record how this--or
these--properties are configured. Are we
talking about a house and adjacent yard?
Or are we talking about a house located
next to a separate lot on which a second
house could be constructed?/1 The
record, as it stands currently, does not
shed enough light on these issues to
justify the grant of summary judgment for
either party on the severance issue.
III. Innocent Ownership
One related issue remains. Bochnewych
argued in his motion for summary judgment
below, and on appeal, that he is an
innocent owner. On appeal, the government
has argued that drug activity took place
in the house and that the trust parcel
"was directly adjacent to the [house]."
Appellee’s Br. at 15. The government also
notes that Boch paid the taxes, utility
bills and mortgages on both parcels. It
concludes that "there were reasonable
grounds to believe there was a nexus
between [the vacant lot] and the activity
taking place [next door]." Id. We suspect
that when the district court takes this
case on remand, it may require more in
the way of evidence tying the vacant lot
to the house, although this may depend on
whether the house and the lot are found
to be a single property or two separate
properties. We are influenced in part by
the fact that Congress, in its recent
forfeiture reform initiative, raised the
quantum of proof for connecting a
forfeiture target with drug activity from
probable cause to preponderance of the
evidence./2 In the present case, there
is nothing in the record to show that the
vacant lot was the site of drug
transactions, was used to grow drugs or
was used to shield drug activity next
door. There is only the allegation that
the lot was located next to the drug
cultivation center, and was maintained by
Peter Boch.
In any event, should the government
satisfy the district court that the
vacant lot was connected to the drug
activity, Bochnewych will then have the
opportunity to prove by a preponderance
of the evidence that he was an innocent
owner; that is, that he did not know
about or consent to the illegal use. See
United States v. 7715 Betsy Bruce Lane,
906 F.2d 110 (4th Cir. 1990). The
government implies that Bochnewych
consented to Boch’s use of the land by
wholly neglecting to monitor it, visit it
or even inquire about it with his son.
Recall that when asked if he had taken
any steps to assure that "his" land was
used lawfully, Bochnewych replied "I
don’t know that. It’s all [Peter’s]."
Bochnewych Dep. at 60. While Bochnewych
was obviously not a hands-on trust
beneficiary, we think it is a slight
stretch to interpret this statement as
consent to the operation of a drug
enterprise sufficient to withhold the
innocent owner defense from Bochnewych as
a matter of law. If Bochnewych has not
been on the land for twenty years, it is
possible, though perhaps not probable,
that he did not know about the drug
activity. And although Bochnewych’s
deposition suggests a certain paternal
indulgence, we are reluctant to transmute
as a matter of law that all-too-human
tendency into consent for his son to run
a drug operation on the land. We think
that a factfinder would be better off
hearing Bochnewych’s live testimony in
order to decide whether the father knew
of or endorsed his son’s activity, and
therefore whether the innocent owner
defense is available to him.
In sum, we reverse the grant of summary
judgment in favor of the government on
the Article III standing issue. And we
decline to affirm the grant of summary
judgment based on conclusions that the
property is indivisible and Bochnewych
was not an innocent owner. We remand the
case to the district court for further
proceedings on the issues of property
indivisibility and innocent ownership in
accordance with this opinion.
/1 Not coincidentally, the divisibility of the
properties may strengthen or weaken Bochnewych’s
interest in the property. For instance, if the
parcel in trust for him is merely a yard, it is
unlikely to have much market value absent the
accompanying house. In such a case, it would best
serve the goals of forfeiture to treat the land
as one because the house that served as the drug
cultivation center dominated the land. And it
would harm Bochnewych very little because his
property would be nearly unsalable. But if the
parcel in trust is a wholly autonomous lot, then
it is both less apparent that the drug activity
in the neighboring house tainted it, and more
apparent that Bochnewych has something of value,
because the property could be sold notwithstand-
ing the forfeiture next door.
/2 Under the Civil Asset Forfeiture Reform Act of
2000, the burdens of proof have been reallocated,
so that the government must prove the connection
between the property to be forfeited and the drug
activity by a preponderance of the evidence. The
Supreme Court explained in Landgraf v. USI Film
Products that although retroactive application of
statutes is usually disfavored, in some situa-
tions, "a court should ’apply the law in effect
at the time it renders its decision.’" 511 U.S.
244, 272 (1994) (citing Bradley v. School Bd. of
City of Richmond, 416 U.S. 696, 711 (1974)).
Retroactive application is particularly appropri-
ate where a procedural rule is changed after a
suit arises "[b]ecause rules of procedure regu-
late secondary rather than primary conduct . . .
." Landgraf, 511 U.S. at 275. The decision wheth-
er to apply a new procedural rule "ordinarily
depends on the posture of the particular case."
Id. at 275 n.29. The district court knows the
posture of this case best, and is in the best
position to decide whether the old or new regime
should apply on remand.