NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              DEC 18 2009

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 07-10272

             Plaintiff - Appellee,               D.C. No. CR-04-40127-DLJ

  v.
                                                 MEMORANDUM *
THOMAS GROSSI, Sr.,

             Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 07-10430

             Plaintiff - Appellant,              D.C. No. CR-04-40127-DLJ

  v.

THOMAS GROSSI, Sr.,

             Defendant - Appellee.



UNITED STATES OF AMERICA,                        No. 07-16627

             Plaintiff - Appellant,              D.C. No. CV-04-03055-DLJ

  v.


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
2638 MARKET STREET, OAKLAND,
CALIFORNIA; $608,916.58 IN U.S.
CURRENCY, as substitute RES for real
property located at 2638 Market Street,
Oakland, California,

              Defendants,

LAURETTA WEIMER; THOMAS
GROSSI,

              Claimants - Appellees.

                  On Appeal from the United States District Court
                      for the Northern District of California
                    D. Lowell Jensen, District Judge, Presiding

                     Argued and Submitted November 3, 2009
                            San Francisco, California

Before: HAWKINS and THOMAS, Circuit Judges, and TRAGER, ** District

Judge.

      Thomas Grossi, Sr. (“Grossi”) appeals from a criminal order of forfeiture of

property issued by the United States District Court for the Northern District of

California (“the district court”). Following a jury trial, Grossi was convicted of

maintaining the property at 2638 Market Street, Oakland, CA (“the Market Street

property”) for the manufacture of marijuana and was ordered to forfeit his entire

         **
             The Honorable David G. Trager, Senior United States District Judge
for the Eastern District of New York, sitting by designation.

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interest in the proceeds from the forfeiture sale of the Market Street property. The

district court calculated this amount at $345,347.28, but ultimately reduced the

forfeiture award by $87,666.80, representing the amount Grossi paid to his sister

Lauretta Weimer (“Weimer”) under a promissory note secured by the Market

Street property. Grossi asserts that the order of forfeiture is an excessive fine in

violation of the Eighth Amendment. The government cross-appeals, arguing that

the district court erred by applying the doctrine of equitable subrogation to reduce

the forfeiture award by $87,666.80.

      We review de novo the district court’s interpretation of federal forfeiture

law, United States v. Casey, 

, 1073 (9th Cir. 2006), as well as its

determination of whether a forfeiture constitutes an excessive fine, United States v.

Bajakajian, 

, 336 n.10 (1998). The district court’s factual findings are

reviewed for clear error, United States v. Nava, 

, 1127 n.3 (9th Cir.

2005), and its choice of equitable remedies is reviewed for abuse of discretion,

Kenney v. United States, 

, 1032 (9th Cir. 2006). We reverse the

district court’s application of equitable subrogation to reduce Grossi’s forfeiture by

$87,666.80 and affirm the district court’s order of forfeiture.

      The government argues that the district court erred in reducing Grossi’s

order of forfeiture by $87,666.80, which represents the balance of the principal that


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Grossi owed to Weimer on the last date of the illegal acts. Because Grossi repaid

that amount to Weimer prior to the ancillary hearing in which she sought

compensation for her interest in the Market Street property, the district court held

that Grossi was entitled to collect that amount from the forfeiture sale proceeds.

      As Weimer still had an interest in the Market Street property on the date she

filed her petition under 21 U.S.C. § 853(n), Weimer had standing to seek relief

through the ancillary hearing. See Hubbard v. 7-Eleven, Inc., 

, 1141 (S.D. Cal. 2006) (“Standing is measured at the time the complaint is

filed.”) (citing Lujan v. Defenders of Wildlife, 

, 569 n.4 (1992));

Johnson v. Bd. of Regents of Univ. Of Ga., 

, 1267 (11th Cir. 2001)

(“[A] party’s standing to sue is generally measured at the time of the complaint,

with the effect of subsequent events generally analyzed under mootness

principles.”). However, the district court erred in applying the doctrine of

equitable subrogation to allow Grossi to recover $87,666.80 from the forfeiture

proceeds. Under California law, the doctrine of equitable subrogation is only

available to those who repay a loan for which another is primarily liable. See

Caito v. United Calif. Bank, 

, 471 (Cal. 1978) (equitable subrogation

requires that the “debt paid . . . be one for which the subrogee was not primarily

liable”); In re Hamada, 

, 651 (9th Cir. 2002) (person claiming


                                          4
equitable subrogation “could not have been primarily liable for the debt he paid”)

(quoting Fidelity Nat’l Title Ins. Co. v. U.S. Dept. of the Treasury, 

,

870 (9th Cir. 1990)). In this case, Grossi repaid a loan for which he himself was

primarily liable. Grossi was a debtor, not a subrogee, at the time he repaid

Weimer, and, therefore, cannot rely on equitable subrogation to recover $87,666.80

from the forfeiture sale proceeds. Furthermore, Weimer could not receive the

$87,666.80 because Grossi’s repayment of his loan extinguished her interest in the

Market Street property. See Alliance Mortgage Co. v. Rothwell, 

, 606

(Cal. 1995) (“A security interest cannot exist without an underlying obligation, and

therefore a mortgage or deed of trust is generally extinguished by . . . payment . . .

in an amount which satisfies the lien.”).

      As to Grossi’s appeal, although there is no rigid formula for determining

when a forfeiture is excessive in violation of the Eighth Amendment, United States

v. Mackby, 

, 1016 (9th Cir. 2003), we have traditionally considered

four factors: “(1) the nature and extent of the crime, (2) whether the violation was

related to other illegal activities, (3) the other penalties that may be imposed for the

violation, and (4) the extent of the harm caused.” United States v. $100,348.00 in

U.S. Currency, 

, 1121-22 (9th Cir. 2004). Here, Grossi’s offense

was clearly both serious and quite extensive. Grossi engaged in a course of


                                            5
conduct involving several co-defendants and two other large-scale marijuana grow

operations. The Market Street property yielded thousands of dollars in profits

before it was shut down, and one co-defendant anticipated that future profits would

be “in excess of $100,000 every several months.” Furthermore, the relevant

criminal statute and Sentencing Guidelines permit fines in excess of $345,347.28

for Grossi’s crime. See 21 U.S.C. § 856(b); U.S.S.G. § 5E1.2(c)(4). As such,

Grossi’s forfeiture is presumptively constitutional. See 

(“[J]udgments about the appropriate punishment for an offense belong in the

first instance to the legislature.”); United States v. Wallace, 

, 486 (5th

Cir. 2004) (“[I]f the value of the forfeited property is within the range of fines

prescribed by Congress, a strong presumption arises that the forfeiture is

constitutional.”) (quoting United States v. 

Drive, 

,

1309 (11th Cir. 1999)). Therefore, Grossi’s forfeiture is upheld.

      On Grossi’s appeal, AFFIRMED; on the government’s cross-appeal,

REVERSED.




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