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  1. #1
    _Wiliam_WaLLace is offline Junior Member
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    Can you lose your home because of anabolic steroid usage

    Yes you can my friends, as always be very careful with your anabolic usage. You can indeed lose your home, probably with the personal amounts most of us posses, such as 1,000 thai d-bols, etc. That is why if you are busted to make sure you have an excellent steroid savy attorney, because with 1,000 tabs they will likely try to charge you with trafficking. Anyway this is an excellent read about a guy who did lose his home, even though there were other drugs involved, do not think for a second that steroids in itself would not be enough.

    if you do not want to lose your home, make sure the state can not prove the following. That your property had sufficiently extensive involvement with crime to justify forfeiture. The following is a list of how the state proved this guy was using his home for trafficking:

    The uncontroverted facts set forth above establish probable cause for forfeiture. In entering his guilty pleas, the claimant admitted that the state could prove that he used the telephone in his residence at 8940 Hall, Lenexa, Kansas to facilitate the distribution of marijuana. The claimant further admitted that the state could prove that he delivered anabolic steroids from his residence at 8940 Hall, Lenexa, Kansas to the residence of another person for safekeeping. See Doc. 41, Exh. 4. Based on these facts and the uncontroverted facts set forth above regarding the conspiracy to distribute various controlled substances, the court finds that the government has established probable cause to believe the property at issue was used to commit or facilitate the commission of a felony drug trafficking crime punishable under Title 21, United States Code

    Anyway guys I hope you read these cases, they will provide you with invaluable information if you are busted, or considering storing or even dealing AS. The case will be the second post, as always be careful.


    __________________

  2. #2
    _Wiliam_WaLLace is offline Junior Member
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    United States sought civil forfeiture of two-story residence owned by claimant, alleging that residence was used or intended to be used to facilitate unlawful drug conspiracy. On United States' motion for summary judgment against claimant's interest, the District Court, Theis, J., held that: (1) district court obtained jurisdiction over defendant property after state court relinquished jurisdiction; (2) government established probable cause to believe residence was used to commit or facilitate commission of felony drug trafficking crime; (3) evidence of legal source of funds used to purchase property was irrelevant and did not rebut showing of probable cause; (4) property had sufficiently extensive involvement with crime to justify forfeiture; (5) assertion that drugs were intended for claimant's personal consumption, even if true, did not defeat finding of probable cause; (6) homestead exemption contained in Kansas Constitution did not preclude federal civil forfeiture; and (7) forfeiture of residence was not excessive fine under Eighth Amendment.
    Motion granted.


    West Headnotes

    [1] KeyCite Notes

    170A Federal Civil Procedure
    170AXVII Judgment
    170AXVII(C) Summary Judgment
    170AXVII(C)1 In General
    170Ak2462 k. Purpose. Most Cited Cases

    A principal purpose of summary judgment rule is to isolate and dispose of factually unsupported claims or defenses. Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A.

    [2] KeyCite Notes

    170A Federal Civil Procedure
    170AXVII Judgment
    170AXVII(C) Summary Judgment
    170AXVII(C)1 In General
    170Ak2465 Matters Affecting Right to Judgment
    170Ak2470 k. Absence of Genuine Issue of Fact in General. Most Cited Cases
    (Formerly 170Ak2549)

    On motion for summary judgment, court's inquiry is to determine whether there is need for trial, or, in other words, whether there are any genuine factual issues that properly can be resolved only by finder of fact because they may reasonably be resolved in favor of either party. Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A.

    [3] KeyCite Notes

    170A Federal Civil Procedure
    170AXVII Judgment
    170AXVII(C) Summary Judgment
    170AXVII(C)1 In General
    170Ak2465 Matters Affecting Right to Judgment
    170Ak2466 k. Lack of Cause of Action or Defense. Most Cited Cases

    170A Federal Civil Procedure
    170AXVII Judgment
    170AXVII(C) Summary Judgment
    170AXVII(C)3 Proceedings
    170Ak2542 Evidence
    170Ak2544 k. Burden of Proof. Most Cited Cases

    Burden at summary judgment stage is similar to burden of proof at trial, and court must enter summary judgment, after adequate time for discovery and upon motion, against party who fails to make showing sufficient to establish existence of element essential to that party's case, and on which that party will bear burden of proof at trial. Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A.

    [4] KeyCite Notes

    170A Federal Civil Procedure
    170AXVII Judgment
    170AXVII(C) Summary Judgment
    170AXVII(C)3 Proceedings
    170Ak2542 Evidence
    170Ak2544 k. Burden of Proof. Most Cited Cases

    Party moving for summary judgment bears initial burden of demonstrating absence of genuine issue of material fact on its claim, but summary judgment rule imposes no requirement on moving party to support its motion with affidavits or other similar materials negating opponent's claim. Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A.

    [5] KeyCite Notes

    170A Federal Civil Procedure
    170AXVII Judgment
    170AXVII(C) Summary Judgment
    170AXVII(C)3 Proceedings
    170Ak2542 Evidence
    170Ak2544 k. Burden of Proof. Most Cited Cases

    Once moving party has properly supported its motion for summary judgment, nonmoving party may not rest upon mere allegations or denials contained in nonmoving party's pleadings, but must set forth specific facts showing genuine issue for trial, relying upon types of evidentiary materials contemplated by summary judgment rule. Fed.Rules Civ.Proc.Rule 56(e), 28 U.S.C.A.

    [6] KeyCite Notes

    170A Federal Civil Procedure
    170AXVII Judgment
    170AXVII(C) Summary Judgment
    170AXVII(C)3 Proceedings
    170Ak2542 Evidence
    170Ak2544 k. Burden of Proof. Most Cited Cases

    On motion for summary judgment, each party must demonstrate to court existence of contested facts on each claim it will have to prove at trial. Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A.

    [7] KeyCite Notes

    170A Federal Civil Procedure
    170AXVII Judgment
    170AXVII(C) Summary Judgment
    170AXVII(C)3 Proceedings
    170Ak2542 Evidence
    170Ak2546 k. Weight and Sufficiency. Most Cited Cases

    Court reviews evidence on summary judgment under substantive law and based on evidentiary burden party will face at trial on particular claim. Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A.

    [8] KeyCite Notes

    170A Federal Civil Procedure
    170AXVII Judgment
    170AXVII(C) Summary Judgment
    170AXVII(C)3 Proceedings
    170Ak2547 Hearing and Determination
    170Ak2552 k. Ascertaining Existence of Fact Issue. Most Cited Cases

    At summary judgment stage, judge's function is not to weigh evidence and determine truth of matter, but to determine whether there is genuine issue for trial. Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A.

    [9] KeyCite Notes

    170A Federal Civil Procedure
    170AXVII Judgment
    170AXVII(C) Summary Judgment
    170AXVII(C)3 Proceedings
    170Ak2547 Hearing and Determination
    170Ak2552 k. Ascertaining Existence of Fact Issue. Most Cited Cases

    Credibility determinations, weighing of evidence, and drawing of legitimate inferences from facts are functions of finder of fact, not functions of judge when ruling on motion for summary judgment. Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A.

    [10] KeyCite Notes

    170A Federal Civil Procedure
    170AXVII Judgment
    170AXVII(C) Summary Judgment
    170AXVII(C)3 Proceedings
    170Ak2542 Evidence
    170Ak2543 k. Presumptions. Most Cited Cases

    On motion for summary judgment, evidence of nonmoving party is to be believed, and all justifiable inferences are to be drawn in favor of nonmovant. Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A.

    [11] KeyCite Notes

    180 Forfeitures
    180k5 k. Proceedings for Enforcement. Most Cited Cases

    Although United States seized defendant property without first providing claimant notice and opportunity to be heard, in violation of claimant's due process rights, invalidity of seizure on that basis did not necessarily invalidate forfeiture, but rather, court could order forfeiture as long as impermissibly obtained evidence was not used in forfeiture proceeding. U.S.C.A. Const.Amend. 5; Comprehensive Drug Abuse Prevention and Control Act of 1970, § 511(a)(7), 21 U.S.C.A. § 881(a)(7).

    [12] KeyCite Notes

    170B Federal Courts
    170BXIII Concurrent and Conflicting Jurisdiction and Comity as Between Federal Courts
    170Bk1147 k. Property in Custody of the Law. Most Cited Cases

    Generally, only one court may exercise in rem jurisdiction over particular res, and court which first assumes jurisdiction over res may maintain that jurisdiction to exclusion of the other, with purpose of this rule being to prevent competition between two courts for control of one res.

    [13] KeyCite Notes

    96H Controlled Substances
    96HV Forfeitures
    96Hk176 Proceedings
    96Hk179 k. Jurisdiction. Most Cited Cases
    (Formerly 138k194.1 Drugs and Narcotics)

    Federal court obtained jurisdiction over defendant residential property in drug forfeiture action after state court, which had first obtained jurisdiction, relinquished it; in response to Kansas Supreme Court ruling that homestead could not be forfeited under state drug laws, state authorities requested federal authorities to commence forfeiture, city obtained dismissal of state court case as it related to defendant property, and United States Marshal seized property after dismissal of state court action. Comprehensive Drug Abuse Prevention and Control Act of 1970, § 511(a)(7), 21 U.S.C.A. § 881(a)(7).

    [14] KeyCite Notes

    96H Controlled Substances
    96HV Forfeitures
    96Hk176 Proceedings
    96Hk184 k. Evidence. Most Cited Cases
    (Formerly 138k195 Drugs and Narcotics)

    In forfeiture proceeding, government bears initial burden to show probable cause for institution of forfeiture action, showing probable cause that property was used to commit or facilitate felony violation of federal drug laws. Comprehensive Drug Abuse Prevention and Control Act of 1970, § 511(a)(7), 21 U.S.C.A. § 881(a)(7).

    [15] KeyCite Notes

    180 Forfeitures
    180k5 k. Proceedings for Enforcement. Most Cited Cases

    Once probable cause has been established in forfeiture proceeding, burden shifts to claimant to demonstrate by preponderance of evidence that property is not subject to forfeiture or a defense to forfeiture exists; claimant bears burden of proving that requested forfeiture does not fall within four corners of statute, and failure to rebut showing of probable cause will support judgment of forfeiture. Comprehensive Drug Abuse Prevention and Control Act of 1970, § 511(a)(7), 21 U.S.C.A. § 881(a)(7).

    [16] KeyCite Notes

    180 Forfeitures
    180k5 k. Proceedings for Enforcement. Most Cited Cases

    Test for determining probable cause for forfeiture is same as applies in arrests, searches and seizures; government must demonstrate reasonable ground for belief of guilt supported by more than mere suspicion but less than prima facie proof. Comprehensive Drug Abuse Prevention and Control Act of 1970, § 511(a)(7), 21 U.S.C.A. § 881(a)(7).

    [17] KeyCite Notes

    96H Controlled Substances
    96HV Forfeitures
    96Hk176 Proceedings
    96Hk184 k. Evidence. Most Cited Cases
    (Formerly 138k195 Drugs and Narcotics)

    Circumstantial evidence of drug transactions may support establishment of probable cause for forfeiture. Comprehensive Drug Abuse Prevention and Control Act of 1970, § 511(a)(7), 21 U.S.C.A. § 881(a)(7).

    [18] KeyCite Notes

    180 Forfeitures
    180k5 k. Proceedings for Enforcement. Most Cited Cases

    Probable cause in forfeiture proceeding may be established by hearsay. Comprehensive Drug Abuse Prevention and Control Act of 1970, § 511(a)(7), 21 U.S.C.A. § 881(a)(7).

    [19] KeyCite Notes

    96H Controlled Substances
    96HV Forfeitures
    96Hk168 Grounds
    96Hk170 k. Probable or Reasonable Cause; Substantial Connection. Most Cited Cases
    (Formerly 138k190 Drugs and Narcotics)

    For purposes of forfeiture, claimant's state court convictions for offenses committed on defendant property are sufficient to establish probable cause to connect property to illegal drug transactions. Comprehensive Drug Abuse Prevention and Control Act of 1970, § 511(a)(7), 21 U.S.C.A. § 881(a)(7).

    [20] KeyCite Notes

    180 Forfeitures
    180k5 k. Proceedings for Enforcement. Most Cited Cases

    By issuing warrant for arrest of defendant property, court has already made determination that probable cause existed to show that defendant property is forfeitable. Comprehensive Drug Abuse Prevention and Control Act of 1970, § 511(a)(7), 21 U.S.C.A. § 881(a)(7).

    [21] KeyCite Notes

    180 Forfeitures
    180k4 k. Grounds in General. Most Cited Cases

    180 Forfeitures
    180k5 k. Proceedings for Enforcement. Most Cited Cases

    Once probable cause for forfeiture has been established, claimant may recover defendant property only by establishing defense to forfeiture by preponderance of evidence. Comprehensive Drug Abuse Prevention and Control Act of 1970, § 511(a)(7), 21 U.S.C.A. § 881(a)(7).

    [22] KeyCite Notes

    180 Forfeitures
    180k5 k. Proceedings for Enforcement. Most Cited Cases

    In seeking to avoid forfeiture once probable cause for forfeiture has been established, claimant cannot sustain his burden of proof with mere conclusory denial of guilt. Comprehensive Drug Abuse Prevention and Control Act of 1970, § 511(a)(7), 21 U.S.C.A. § 881(a)(7).

    [23] KeyCite Notes

    180 Forfeitures
    180k5 k. Proceedings for Enforcement. Most Cited Cases

    Claimant cannot rely on hearsay evidence to sustain ultimate burden of proof necessary to avoid forfeiture once probable cause for forfeiture has been established. Comprehensive Drug Abuse Prevention and Control Act of 1970, § 511(a)(7), 21 U.S.C.A. § 881(a)(7).

    [24] KeyCite Notes

    96H Controlled Substances
    96HV Forfeitures
    96Hk168 Grounds
    96Hk171 k. Particular Cases. Most Cited Cases
    (Formerly 138k190 Drugs and Narcotics)

    As required for civil forfeiture, government established probable cause to believe claimant's residence was used to commit or facilitate commission of federal drug trafficking felony, where claimant entered state court guilty pleas admitting that state could prove that he used telephone in his residence to facilitate distribution of marijuana and could prove that he delivered anabolic steroids from his residence to another person's residence for safekeeping, and information obtained through personal observations and intercepted phone communications pursuant to valid court order on residence's telephone line gave evidence of conspiracy to distribute various controlled substances. Comprehensive Drug Abuse Prevention and Control Act of 1970, § 511(a)(7), 21 U.S.C.A. § 881(a)(7).

    [25] KeyCite Notes

    96H Controlled Substances
    96HV Forfeitures
    96Hk176 Proceedings
    96Hk184 k. Evidence. Most Cited Cases
    (Formerly 138k195 Drugs and Narcotics)

    Evidence that claimant's mother gave him approximately $150,000 near time he purchased defendant real property in cash transaction did not rebut government's showing of probable cause that residence was used to commit or facilitate commission of felony drug trafficking crime, since source of funds used to purchase property was not material to issues in forfeiture proceeding, absent allegation that property was purchased with proceeds of illegal activities. Comprehensive Drug Abuse Prevention and Control Act of 1970, § 511(a)(7), 21 U.S.C.A. § 881(a)(7).

    [26] KeyCite Notes

    96H Controlled Substances
    96HV Forfeitures
    96Hk168 Grounds
    96Hk171 k. Particular Cases. Most Cited Cases
    (Formerly 138k190 Drugs and Narcotics)

    Claimant's residence had sufficiently extensive involvement with claimant's drug trafficking crime to justify forfeiture, where claimant's use of his residence allowed him to conduct his drug activity in private, away from detection of police, and property was used to store drugs, to take phone calls and to transact drug business. Comprehensive Drug Abuse Prevention and Control Act of 1970, § 511(a)(7), 21 U.S.C.A. § 881(a)(7).

    [27] KeyCite Notes

    96H Controlled Substances
    96HV Forfeitures
    96Hk168 Grounds
    96Hk170 k. Probable or Reasonable Cause; Substantial Connection. Most Cited Cases
    (Formerly 138k190 Drugs and Narcotics)

    Forfeiture statute requires sufficient "nexus" between defendant property and claimant's involvement in drug trafficking; statute does not require proof that real property was essential, integral or indispensable to transaction, but only that property was used to commit or facilitate commission of drug trafficking offense. Comprehensive Drug Abuse Prevention and Control Act of 1970, § 511(a)(7), 21 U.S.C.A. § 881(a)(7).

    [28] KeyCite Notes

    96H Controlled Substances
    96HV Forfeitures
    96Hk168 Grounds
    96Hk171 k. Particular Cases. Most Cited Cases
    (Formerly 138k190 Drugs and Narcotics)

    Claimant's assertion that drugs found in his residence were intended for his personal consumption, even if true, did not defeat finding of probable cause for forfeiture based on uncontroverted facts, including claimant's guilty pleas to state law felony offenses of use of telephone to facilitate distribution of marijuana and delivery of anabolic steroids , and facts setting forth evidence of conspiracy to distribute various controlled substances. Comprehensive Drug Abuse Prevention and Control Act of 1970, §§ 401(a)(1), 403(b), 406, 511(a)(7), 21 U.S.C.A. §§ 841(a)(1), 843(b), 846, 881(a)(7).

    [29] KeyCite Notes

    180 Forfeitures
    180k5 k. Proceedings for Enforcement. Most Cited Cases

    Whether claimant had successfully completed criminal penalties imposed upon him was relevant, if at all, only as it related to his Eighth Amendment challenge to forfeiture of his residence. U.S.C.A. Const.Amend. 8; Comprehensive Drug Abuse Prevention and Control Act of 1970, § 511(a)(7), 21 U.S.C.A. § 881(a)(7).

    [30] KeyCite Notes

    96H Controlled Substances
    96HV Forfeitures
    96Hk172 Defenses
    96Hk173 k. In General. Most Cited Cases
    (Formerly 138k192 Drugs and Narcotics)

    Whether claimant was "drug free" was not material to any defense to forfeiture action, in which government sought civil forfeiture of claimant's residence based on allegation that residence was used or intended to be used to facilitate unlawful drug conspiracy. Comprehensive Drug Abuse Prevention and Control Act of 1970, § 511(a)(7), 21 U.S.C.A. § 881(a)(7).

    [31] KeyCite Notes

    202 Homestead
    202I Nature, Acquisition, and Extent
    202I(A) Nature, Creation, and Duration of Estate or Right in General
    202k3 k. Constitutional and Statutory Provisions. Most Cited Cases

    202 Homestead
    202I Nature, Acquisition, and Extent
    202I(E) Liabilities Enforceable Against Homestead
    202k90 k. Exceptions from Exemptions in General. Most Cited Cases

    360 States
    360I Political Status and Relations
    360I(B) Federal Supremacy; Preemption
    360k18.35 k. Garnishment and Attachment; Exemptions. Most Cited Cases

    Federal civil forfeiture statute preempted state law as to forfeitability of homestead property, and thus federal forfeiture of claimant's residence was not precluded by Kansas Supreme Court ruling that forfeiture of homestead for drug trafficking offenses under Kansas statute violates homestead exemption contained in Kansas Constitution. Comprehensive Drug Abuse Prevention and Control Act of 1970, §§ 511, 511(a)(7), 21 U.S.C.A. §§ 881, 881(a)(7).

    [32] KeyCite Notes

    174 Fines
    174k1.3 k. Excessive Fines. Most Cited Cases
    (Formerly 110k1214)

    96H Controlled Substances
    96HV Forfeitures
    96Hk164 Property Subject to Forfeiture
    96Hk166 k. Excessiveness and Proportionality. Most Cited Cases
    (Formerly 138k191 Drugs and Narcotics)


    __________________

  3. #3
    _Wiliam_WaLLace is offline Junior Member
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    Civil forfeiture of claimant's residence was not excessive fine under Eighth Amendment, where claimant appeared to have been involved in extensive drug trafficking activities from his home during time that law enforcement officials were monitoring his telephone, although length of time defendant property was involved in drug activities was unknown, monetary value of property was approximately $158,000, which was significantly less than amount claimant could have been fined under federal criminal code or under Kansas state law upon conviction, no innocent owners or occupants of residence would be affected by forfeiture, and offenses to which claimant pleaded guilty in state court occurred on the property. U.S.C.A. Const.Amend. 8; 18 U.S.C.A. § 3571; Comprehensive Drug Abuse Prevention and Control Act of 1970, § 511(a)(7), 21 U.S.C.A. § 881(a)(7).

    [33] KeyCite Notes

    174 Fines
    174k1.3 k. Excessive Fines. Most Cited Cases
    (Formerly 110k1214)

    Court must consider all factors when considering whether forfeiture is excessive fine under Eighth Amendment, including extent of criminal drug activities, length of time encompassed, relationship between property and criminal offenses, monetary value of property, extent of criminal activity associated with property, fact that property was residence, effect of forfeiture on innocent occupants of residence, including children, or any other factors that excessive fine analysis might require. U.S.C.A. Const.Amend. 8; Comprehensive Drug Abuse Prevention and Control Act of 1970, § 511(a)(7), 21 U.S.C.A. § 881(a)(7).
    *401 Michael G. Christensen, Annette B. Gurney, Kim Martin Fowler, Office of U.S. Atty., Wichita, KS, for plaintiff.
    Laura L. McConwell, Law Offices of Edward A. McConwell, Overland Park, KS, for defendant.


    MEMORANDUM AND ORDER

    THEIS, District Judge.
    This matter is before the court on the United States' motion for partial summary judgment (Doc. 40) against the interest of the claimant Steven M. Muchnick (hereinafter "claimant" or "Muchnick"). This is a civil forfeiture action brought by the United States pursuant to 21 U.S.C. § 881(a)(7).
    The following facts as set forth by the United States are uncontroverted.
    1. Between November 29, 1989 and December 14, 1989, information obtained through intercepted phone communications pursuant to a valid court order on the telephone line servicing the two-story residence located at 8940 Hall, Lenexa, Kansas, and personal observations by law enforcement officers gave rise to evidence of a conspiracy to unlawfully sell and distribute cocaine, marijuana, diazepam, anabolic steroids , and 3,4-Methylene-dioxymethamphetamine (3,4- M.D.M.A.), with the previously described real property being used or intended to be used to facilitate the unlawful conspiracy of its owner, Steven M. Muchnick.
    The claimant's attempt to controvert this statement of facts is unsuccessful. As discussed below, hearsay may be used to establish probable cause. Further, the claimant's affidavit is insufficient to defeat the motion for summary judgment.
    2. On or about December 14, 1989, pursuant to a lawful search of the two-story residence located at 8940 Hall, Lenexa, Kansas, quantities of marijuana and diazepam, which are listed as controlled substances under Kan.Stat.Ann. 65- 4105 and 65-4111, respectively, were discovered. These controlled substances and others were kept at the previously described real property for the purpose of facilitating the unlawful sale and distribution of these controlled substances.
    The claimant's attempt to controvert this statement of facts is unsuccessful for the same reasons set forth in paragraph 1.
    3. Between November 29, 1989 and December 14, 1989, information obtained through personal observations and intercepted phone communications pursuant to a valid court order on the telephone line servicing the two-story residence located at 8940 Hall, Lenexa, Kansas, gave rise to evidence of a conspiracy to unlawfully sell and distribute cocaine, marijuana, diazepam, anabolic steroids , and 3,4-M.D.M.A., all controlled substances.
    The claimant's attempt to controvert this statement of facts is unsuccessful for the same reasons set forth in paragraph 1.
    4. Steven M. Muchnick is the sole owner of the defendant real estate.
    5. Steven M. Muchnick was a defendant in United States of America v. Steven M. Muchnick et al., Case No. 90-00135-01-CR-W-8 (W.D.Mo.). Muchnick was found guilty of Counts 1-3, 5-7, 9-11, 13-14, 16-17, 19-20. [FN1]


    FN1. The charges against Muchnick were: conspiracy to distribute Diazepam and Alprazolam, Schedule IV controlled substances (Count 1); use of a telephone in the distribution of Diazepam and Alprazolam (Count 2, 3, 6, 7, 10, 11, 14, 16, 17); distribution of Diazepam and Alprazolam (Count 5, 13); distribution of Diazepam (Count 9, 19); and theft of government property (Diazepam and Alprazolam tablets from the Veterans Administration Medical Center) (Count 20). Muchnick was not charged in Counts 4, 8, 12, 15, and 18. Muchnick was found guilty as charged following a jury trial.


    *402 6. In State of Kansas v. Steven M. Muchnick, Case No. K-68294 (Dist.Ct.Johnson County) Muchnick pleaded guilty to "use of a phone to facilitate the distribution of marijuana." [FN2] In the factual basis for the charge, Muchnick agreed that he had used the phone located in the residence at 8940 Hall, Lenexa, Johnson County, Kansas, to facilitate the distribution of marijuana, a controlled substance.


    FN2. According to the transcript of the plea hearing, this charge was Count 2 of a criminal complaint containing at least 19 counts. Doc. 41, Exh. 4, at p. 17.


    The claimant has attempted to controvert this statement of fact without the citation to any evidentiary materials in support. A review of the transcript of the plea hearing reveals that Muchnick's counsel stipulated that the state could prove the above facts if the matter went to trial. Doc. 41, Exh. 4, p. 15.
    7. In state court, Muchnick also pleaded guilty to the "delivery of anabolic steroids." [FN3] In the factual basis for the plea, Muchnick admitted that he stored quantities of anabolic steroids in the residence located at 8940 Hall, Lenexa, Johnson County, Kansas and that he removed those anabolic steroids from that residence and transported them to another location in Overland Park, Kansas, after he became fearful the steroids would be discovered in the residence at 8940 Hall.

    FN3. This charge was Count 15 of the same multiple count criminal complaint. Doc. 41, Exh. 4, p. 17.


    The claimant has attempted to controvert this statement of fact without the citation to any evidentiary materials in support. A review of the plea hearing reveals that Muchnick's counsel agreed that the state could prove the above facts if the matter went to trial. Doc. 41, Exh. 4, pp. 15-17. [FN4]


    __________________

  4. #4
    _Wiliam_WaLLace is offline Junior Member
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    [32] The claimant next argues that the forfeiture of his residence would constitute an excessive fine. The Eighth Amendment to the United States Constitution provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual *406 punishments inflicted." U.S. Const. amend. VIII. The United States Supreme Court has held that the Eighth Amendment's excessive fines clause applies both to in rem civil forfeiture actions, Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), and in personam criminal forfeiture actions. Alexander v. United States, 509 U.S. 544, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993). The Supreme Court declined to establish a test to determine when a forfeiture is excessive. Austin, 509 U.S. at ----, 113 S.Ct. at 2812.
    [33] The Tenth Circuit appears to have adopted the Eighth Circuit's test on excessiveness. The Tenth Circuit has stated that the court must consider "all factors" when evaluating whether a forfeiture is excessive. United States v. Libretti, 38 F.3d 523, 531 (10th Cir.1994) (criminal forfeiture pursuant to 21 U.S.C. § 853) (citing United States v. Bieri, 21 F.3d 819, 824 (8th Cir.), cert. denied, 513 U.S. 878, 115 S.Ct. 208, 130 L.Ed.2d 138 (1994)). Those factors include the extent of the criminal drug activities, the length of time encompassed, and the relationship between the property and the criminal offenses. Bieri, 21 F.3d at 824.
    Factors to consider in the Eighth Amendment analysis also include: the monetary value of the property, the extent of criminal activity associated with the property, the fact that the property was a residence, the effect of forfeiture on innocent occupants of the residence, including children, "or any other factors that an excessive fine analysis might require." United States v. One Parcel of Real Property, 27 F.3d 327, 331 (8th Cir.1994) (civil forfeiture pursuant to 21 U.S.C. § 881).
    In the present case, the length of time the defendant property was involved in drug activities is unknown to the court. However, during the period of time in which law enforcement officials were monitoring the claimant's telephone, the claimant appears to have been involved in very extensive drug trafficking activities from his home. During the period November 28, 1989 to December 14, 1989, 1,509 phone calls were intercepted. Of that total, 689 were calls placed or received in which an actual conversation ensued. Of those 689 calls, 154 conversations involved drugs and/or drug use. Ninety-four conversations involved actual drug transactions. The calls in which no conversation ensued included incoming/outgoing calls in which there was no answer, outgoing calls in which the number called was busy, and outgoing calls to a pager. (See Doc. 57, Exh. 2). The monetary value of the property is approximately $158,000, which is significantly less than the amount the claimant could have been fined under the federal criminal code or under Kansas state law upon conviction. The fact that the property is a residence may in some cases weigh against forfeiture. However, in the present case, no innocent owners or occupants would be affected by forfeiture. The offenses to which the claimant pleaded guilty in state court occurred on the property. Based on a consideration of these factors, the court finds that the forfeiture of the claimant's residence does not constitute an excessive fine.
    Further, as noted above, the value of the property to be forfeited is well within the statutory maximum fine which could have been imposed upon a felony drug conviction. Had the claimant been found guilty in federal court of the drug charges to which he pleaded guilty in state court, he faced a maximum fine of $500,000 pursuant to 18 U.S.C. § 3571. The claimant was apparently not fined in the District Court of Johnson County. Following his state court conviction, the defendant was placed on probation. Doc. 54, Exh. 4. Apparently the claimant's car (of unknown value) and $237.00 in cash have been forfeited in state court. In the United States District Court for the Western District of Missouri, the claimant was fined $1,200 and placed on probation following his conviction on fifteen felony drug counts. Doc. 54, Exh. 3. The claimant could have been fined nearly $4 million for those offenses.
    The Tenth Circuit has held that a forfeiture of $410,000 in property was not excessive when the statutory maximum fine which could have been imposed was $2,000,000 and the defendant was fined only $5,000. Libretti, 38 F.3d at 531. Similarly, the forfeiture of the claimant's house (worth approximately *407 $158,000) is not excessive in light of the fines which could have been imposed upon the claimant.
    IT IS BY THE COURT THEREFORE ORDERED that the plaintiff's motion for summary judgment against the interest of Steven M. Muchnick (Doc. 40) is hereby granted. Counsel for the plaintiff shall prepare the journal entry.
    D.Kan.,1995.
    U.S. v. One Parcel Property Located at Lot 85, Country Ridge, a Subdivision in City of Lenexa, Johnson County, KS
    894 F.Supp. 397
    END OF DOCUMENT

  5. #5
    Grant's Avatar
    Grant is offline Member
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    Aug 2001
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    Whoa! After reading all that i think i am ready to take the BAR exam.

  6. #6
    BIG RED I is offline Junior Member
    Join Date
    May 2002
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    52
    HI AR members,

    Interesting laws. We can conclude an issue of integrity lies in not getting 'got' period! Interestingly, signing packages for 'others' is a common practice, yet many are ignorant of such a dire action and the consequences which follow.

    Consider the integrity of government agencies enforce laws pertaining buying/ selling ASS and government agencies enforce the constitutional laws pertaining ASS. Then consider government agencies don't enforce restrictive measures against 'government civilians' abusing ASS first hand!

    Interestingly there's no supportive source to suggest other wise government officials having abusing steroids at one time or other in they're life, including coccaine. Although, if we delved deeper what would one un-earth?

    Perhaps everything 'constitutional' and 'right' is a moment in time? Another epoch and we'll see 'implemented changes' surrounding the use of hormones? Note the immediate changes in Candian law pertaining the use of Canibus Sativa! It's a start in less dramatic direction.....

    red. from a far

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