F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                   PUBLISH
                                                                        JAN 2 2002
                  UNITED STATES COURT OF APPEALS
                                                                    PATRICK FISHER
                                                                            Clerk
                              TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

 v.                                                   No. 00-7059

 WAGONER COUNTY REAL
 ESTATE, Rural Route 5, Box 340,
 Wagoner,

             Defendant.


 NANETTE LEES,

             Claimant-Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
           FOR THE EASTERN DISTRICT OF OKLAHOMA
                     (D.C. No. 99-CV-342-S)


Linda A. Epperley, Assistant United States Attorney (Sheldon J. Sperling, United
States Attorney with her on the brief), Muskogee, Oklahoma, for Plaintiff-
Appellee.

Robert G. Brown, Tulsa, Oklahoma, for Claimant-Appellant.


Before SEYMOUR , Circuit Judge, BRORBY , Senior Circuit Judge, and
LUCERO, Circuit Judge.
SEYMOUR , Circuit Judge.




       Claimant Nanette Lees, the owner of real property in Wagoner, Oklahoma,

appeals from a judgment ordering forfeiture of the property for its use in the

facilitation of federal drug law violations.         See 21 U.S.C. § 881(a)(7) (1999).

On appeal, Ms. Lees contests the validity of the forfeiture decree, arguing that

(1) the property was her homestead, and not subject to forfeiture under Oklahoma

law; (2) an improper jury instruction concerning probable cause interfered with

her ability to demonstrate that the property was not used in illegal activity; (3) the

erroneous denial of her motions in limine to exclude evidence of her prior drug

conviction and her grandson’s drug-related juvenile adjudication curtailed her

innocent owner defense; and (4) the forfeiture of her property constituted an

excessive fine in violation of the Eighth Amendment of the United States

Constitution. After ordering supplemental briefing on the fourth issue and

hearing oral argument by the parties, we now affirm in part, reverse in part, and

remand for further proceedings.




                                               -2-
                                          I

      On June 24, 1999, the Wagoner Police Department arrested an individual

named Brian Sevier for possession of a large bag of marijuana. Sevier cooperated

with law enforcement officers, telling them that he had purchased the marijuana

at Ms. Lees’ residence from Jade Lees, who was Sevier’s friend and Ms. Lees’

grandson. Sevier agreed to call Jade and arrange another marijuana purchase.

The officers drove to Ms. Lees’ house, where they saw two men sitting on the

back porch, smoking what the officers believed to be marijuana cigarettes.

Jade appeared in the doorway.

      The officers asked Jade for permission to search the residence. Jade stated

that, although he lived there, he could not consent to the search because the

property belonged to Ms. Lees, who was driving home from Oklahoma City.

Ms. Lees was called on her cell phone. She gave oral permission for the search

and said that she would arrive home within an hour. When Ms. Lees entered the

house, she took a seat, placed the black bag she was carrying beside her chair,

and signed a search consent form.

      In their search, the officers found a gallon-size bag of suspected marijuana,

a large set of scales, vials containing suspected steroids, several hundred dollars

in cash, and approximately fifteen firearms. These items were found primarily in




                                         -3-
Jade’s bedroom. With her consent, an officer also searched Ms. Lees’ black bag

and found a large quantity of Valium pills.

      On June 29, a search warrant was issued and the officers conducted a

second search of the property. Among other things, they found photographs of

marijuana cultivation, an ashtray with marijuana residue, vials of suspected

testosterone, and some cigarette rolling papers. On the patio, they observed

a scattering of numerous marijuana cigarette butts.

      Both Nanette and Jade Lees were arrested on state drug charges. The

state pursued charges against Jade Lees, but not against Ms. Lees. Previously,

Ms. Lees had been placed on probation after entering a guilty plea to a federal

misdemeanor charge of possession of 33,600 tablets of Valium, arising from her

December 4, 1998, arrest at a United States Border Patrol Checkpoint outside of

Laredo, Texas.   Following her arrest on the state drug charges, Ms. Lees’

probation was revoked and she was committed to the custody of the United States

Bureau of Prisons to serve a sentence of twelve months.

      The United States brought this civil in rem forfeiture action, alleging

that the property had been used, or intended to be used, to commit or facilitate

the commission of federal drug offenses and was therefore forfeitable under




                                         -4-
21 U.S.C. § 881(a)(7) (1999).   1
                                    The district court issued a warrant of arrest in rem

for the property. Ms. Lees contested the forfeiture, asserting that the property

was protected by the homestead exemption, that it was not used in connection

with a drug offense, that she was an innocent owner of the property, and that




1
      As applicable to the instant case, § 881(a)(7) provided:

      The following shall be subject to forfeiture to the United States and
      no property right shall exist in them:

      ...

      (7) All real property, including any right, title, and interest (including
      any leasehold interest) in the whole of any lot or tract of land and
      any appurtenances or improvements, which is used, or intended to be
      used, in any manner or part, to commit, or to facilitate the
      commission of, a violation of this subchapter punishable by more
      than one year’s imprisonment, except that no property shall be
      forfeited under this paragraph, to the extent of an interest of an
      owner, by reason of any act or omission established by that owner to
      have been committed or omitted without the knowledge or consent of
      that owner.

      Congress has significantly amended the civil forfeiture statutes for
proceedings commenced after August 23, 2000.        See Civil Asset Forfeiture
Reform Act of 2000, Pub. L. No. 106-185, sec. 21, 114 Stat. 202, 225. The
“innocent owner” defense which appeared in § 881(a)(7) is now codified at
18 U.S.C. § 983(d), as part of the general rules for civil forfeiture procedures and
does not now appear anywhere within § 881. In enacting § 983(d)(2)(A),
Congress clarified the definition of an “innocent owner” to be one who “(i) did
not know of the conduct giving rise to forfeiture; or (ii) upon learning of the
conduct giving rise to the forfeiture, did all that reasonably could be expected
under the circumstances to terminate such use of the property.”

                                            -5-
forfeiture of the property, with an appraised value of $136,000, would constitute

an excessive fine in violation of the Eighth Amendment.

      The United States filed a motion for partial summary judgment on many of

Ms. Lees’ claims and defenses. The district court granted the government’s

motion with respect to the probable cause and homestead exemption issues.

The remainder of the case proceeded to a jury trial.

      At trial, Ms. Lees testified on her own behalf. Sevier, local law

enforcement officers involved in the investigation, and a special agent with the

federal Drug Enforcement Administration provided testimony for the government.

At the conclusion of the evidence, the court determined that, as a matter of law,

a potential forfeiture of Ms. Lee’s property would not be grossly disproportionate

and therefore would not violate the Excessive Fines clause. The jury returned its

verdict in favor of the government and the district court entered a decree of

forfeiture. This appeal followed.


                                         II

      First we consider Ms. Lees’ claim that, as a resident of Oklahoma and

a Creek Indian, her property may not be forfeited because it is protected by the

general Oklahoma homestead exemption,      Okla. Stat. tit. 31, § 1(A),   2
                                                                              and the


2
      Section 1(A) provides, in pertinent part:
                                                                              (continued...)

                                         -6-
Oklahoma constitutional provision relating to Indian homesteads,      Okla. Const.

art. XII, § 1(D).   3
                        Ms. Lees points out that the Oklahoma Supreme Court has ruled

that a statutory homestead is not subject to forfeiture under the Oklahoma

Uniform Controlled Dangerous Substances Act.         State ex rel. Means v. Ten (10)

Acres of Land , 

, 601 (Okla. 1994).

         The district court granted the government’s motion for partial summary

judgment on this issue, determining that federal forfeiture law preempted

Oklahoma law as to the forfeitability of homestead property.       See Aplee. App.,

vol. I at 142. “Whether state law is preempted by federal law is a conclusion of

law which we . . . review      de novo .” Garley v. Sandia Corp. , 

, 1206

(10th Cir. 2001).

         Congress has the power to preempt state law under Article VI of the

Supremacy Clause, which provides that the laws of the United States are “the

2
    (...continued)
          [T]he following property shall be reserved to every person residing in
          the state, exempt from attachment or execution and every other
          species of forced sale for the payment of debts, except as herein
          provided:

          1. The home of such person, provided that such home is the
         principal residence of such person[.]
3
         Article XII, § 1(D) provides:

         Nothing in the laws of the United States, or any treaties with the
         Indian Tribes in the State, shall deprive any Indian or other allottee
         of the benefit of the homestead and exemption laws of the State.

                                            -7-
supreme Law of the Land; . . . any Thing in the Constitution or Laws of any state

to the Contrary notwithstanding.” U.S. Const. Art. VI, cl. 2. Federal law

preempts state law in three circumstances: (1) when Congress explicitly defines

the extent to which the enacted statute preempts state law; (2) when state law

actually conflicts with federal law; or (3) when state law attempts to regulate

“conduct in a field that Congress intended the Federal Government to occupy

exclusively.” Choate v. Champion Home Builders Co.           , 

, 792

(10th Cir. 2000) ( citing English v. Gen. Elec. Co. , 

, 78-79 (1990));

see also 21 U.S.C. § 903 (providing that federal forfeiture law should not be

“construed as indicating an intent on the part of Congress to occupy the field in

which that provision operates, . . .   unless there is a positive conflict”   between

federal and state law) (emphasis supplied). In any preemption analysis,

congressional intent is the “ultimate touchstone.”       Cipollone v. Liggett Group,

Inc. , 

, 516 (1992) (additional quotations omitted).

       The language of § 881(a)(7) does not specify the extent to which state

homestead laws are affected. Contrary to claimant’s contentions, however, there

is no legal significance in the lack of an explicit statement of preemption.

Section 881(a)(7) provides for the forfeiture of “[a]ll real property” used to

commit a federal drug law violation. The statute’s broad, unambiguous language




                                             -8-
is in direct conflict with Oklahoma law allowing forfeiture of all property except

homestead property.

       This literal reading of § 881(a)(7) is consistent with the relevant legislative

history. A stated purpose in enacting the Comprehensive Crime Control Act of

1984, of which § 881(a)(7) is a part, was

                “to enhance the use of forfeiture . . . as a law
                enforcement tool in combating . . . drug trafficking. . . .
                This bill is intended to eliminate the statutory limitations
                and ambiguities that have frustrated active pursuit of
                forfeiture by Federal law enforcement agencies.”

       S. Rep. No. 225, 98th Cong. 2d Sess. 191, 192,    reprinted in 1984
       U.S.C.C.A.N. 3182, 3374, 3375. Moreover, the legislative history
       evinces specific intent to extend civil forfeiture to homesteads.
       See 

reprinted in 1984 U.S.C.C.A.N. 3378 (civil forfeiture
       statute extends to “house” of drug offender to be [a] “powerful
       deterrent” to commission of drug offense).

United States v. Lot 5, Fox Grove      , 

, 363 (11th Cir. 1994) (alterations

in original).

       All other federal courts considering the interplay between § 881(a)(7) and

state homestead protections have determined that residential property is subject to

forfeiture despite state exemptions.     See 

States v. 

Ave.          ,

, 1301 n.6 (11th Cir. 1994);      Brewer v. United States (In re Brewer)          ,

, 577 (Bankr. S.D. Fla. 1996);         United States v. One Parcel Property       ,

, 405 (D. Kan. 1995);       United States v. 1606 Butterfield Rd.    ,

, 1505 (N.D. Iowa 1991);          United States v. 212 Airport Rd. S.    ,

                                             -9-


, 1216 (S.D. Fla. 1991);     see also Means , 877 P.2d at 601

(stating that “[f]ederal courts generally have found state homestead exemptions

preempted by federal forfeiture laws”).

      In light of the clear statutory language, the legislative history, and the

unanimity of federal court decisions, we hold that federal preemption of the

Oklahoma homestead exemptions is necessary to carry out the Congressional

intent underlying § 881(a)(7) and to maintain uniformity in federal forfeiture

law. 4 Accordingly, the district court’s preemption ruling properly led to the

proceeding in which a jury determined that forfeiture of Ms. Lees’ residential

property was justified.


                                            III

      Concerning the conduct of the forfeiture proceedings, Ms. Lees asserts that

the district court made two erroneous rulings: (A) in instructing the jury

concerning its determination on the issue of probable cause and (B) in denying

her motion in limine to exclude evidence of her prior drug conviction and Jade’s

juvenile adjudication for a drug offense. These contentions must be placed in the



4
       Claimant’s arguments against preemption are unpersuasive. In particular,
her references to bankruptcy law fail to support the contention that state
homestead exemptions are applicable to § 881(a)(7). The bankruptcy statute
expressly allows incorporation of state law.  See 11 U.S.C. § 522(b)(2)(A). In
contrast, there is no such provision applicable to § 881(a)(7).

                                            -10-
procedural framework applicable to a civil in rem forfeiture case. The

government bears the initial burden of showing probable cause to believe that

a nexus existed between the property and specified illegal activity sufficient to

justify forfeiture.   See United States v. $149,442.43 in U.S. Currency   , 

, 876 (10th Cir. 1992).   5



       Once the government establishes probable cause, the burden shifts to the

claimant to demonstrate by a preponderance of the evidence that the property is

not subject to forfeiture.   

The claimant may accomplish this either

by showing that the property was not in fact used for the specified illegal activity,

or by demonstrating that she was an innocent owner under § 881(a)(7).

       A.      Probable cause

       Concerning the government’s showing of probable cause, Ms. Lees claims

the court erred in instructing the jury as follows:

       the court has previously determined from the evidence presented that
       the United States has proven probable cause that the Defendant
       property was used to commit or facilitate the commission of drug
       offenses.



5
        The Civil Asset Forfeiture Reform Act of 2000 changes the government’s
initial burden of proof. Pursuant to 18 U.S.C. § 983(c)(1), the “burden of proof
is on the Government to establish, by a  preponderance of the evidence , that the
property is subject to forfeiture.” (emphasis added). We have held that this Act
does “not apply to a proceeding commenced before its effective date but pending
on appeal after that date.”  United States v. Lot Numbered One of the Lavaland
Annex , 

, 958 (10th Cir. 2001).

                                            -11-
             Because the government has proven probable cause to believe
      that the Defendant property was used to commit or facilitate the
      commission of drug offenses, the claimant bears the burden in this
      case of proving either (1) the Defendant property was not used to
      commit or facilitate the commission of drug offenses or (2) that she
      was an innocent owner of the Defendant property.

Aplee App., vol. I at 182.

      Ms. Lees did not object to this instruction, so we review it for plain error.

United States v. Fabiano , 

, 1302-03 (10th Cir.),   cert. denied , 

(1999). “Whether the facts produced at a forfeiture proceeding

constitute probable cause” is a legal conclusion, which we review de novo.

$149,442.43 , 965 F.2d at 876.

             The test for determining probable cause for forfeiture purposes
      is the same as applies in arrests, searches and seizures. Accordingly,
      the government must demonstrate a reasonable ground for belief of
      guilt supported by less than prima facie proof, but more than mere
      suspicion. Circumstantial evidence of drug transactions may support
      the establishment of probable cause. However, the presence or
      absence of any single factor is not dispositive.

(quotations and citations omitted).

      Here, the district court made a probable cause determination prior to trial,

when it issued the warrant of arrest in rem for the property. By the time the jury

was instructed, the court had heard testimony bolstering and confirming its earlier

determination that the government demonstrated a reasonable ground for

believing the property was used to facilitate drug transactions. Accordingly, the



                                         -12-
district court did not err instructing the jury that the burden of proof had shifted

to Ms. Lees.

      B.       Motion in limine

      Ms. Lees also claims the district court erred in summarily denying her

motions in limine to bar impeachment evidence of her prior misdemeanor

conviction for possession of Valium and Jade’s adjudication as a juvenile

delinquent for possession of a controlled substance. She contends this ruling not

only violated Rule 609 of the Federal Rules of Evidence,    6
                                                                but also “destroy[ed]


6
      Rule 609 provides, in pertinent part:

      (a) General rule . For the purpose of attacking the credibility of a
      witness,

               (1) evidence that a witness other than an accused has
               been convicted of a crime shall be admitted, subject to
               Rule 403, if the crime was punishable by death or
               imprisonment in excess of one year under the law under
               which the witness was convicted, and evidence that an
               accused has been convicted of such a crime shall be
               admitted if the court determines that the probative value
               of admitting this evidence outweighs its prejudicial
               effect to the accused;

      ...

      (d) Juvenile adjudications . Evidence of juvenile adjudications is
      generally not admissible under this rule. The court may, however, in
      a criminal case allow evidence of a juvenile adjudication of a witness
      other than the accused if conviction of the offense would be
      admissible to attack the credibility of an adult and the court is
                                                                        (continued...)

                                          -13-
her defense of innocent owner” by forcing her to provide preemptive testimony

about her own conviction and to forgo Jade’s testimony on his version of the

facts. Aplt. Br. at 28.

         “We review a district court’s rulings on evidentiary matters and motions       in

limine for abuse of discretion.”     United States v. Weller , 

, 1220

(10th Cir. 2001). “In order to reverse a district court judgment on account of an

evidentiary ruling, [appellant] must make a clear showing she suffered prejudice,

and the ruling was inconsistent with substantial justice or affected her substantial

rights.” Coletti v. Cudd Pressure Control     , 

, 773 (10th Cir. 1999)

(quotations omitted).

         As to the ruling on the admissibility of Ms. Lee’s prior conviction under

Rule 609, our conclusion is dictated by the holding of      Ohler v. United States ,

(2000). In      Ohler , the trial court denied the defendant’s in limine

motion to preclude the government’s use of a prior conviction for impeachment

purposes. The defendant then testified on direct examination as to the prior


6
    (...continued)
          satisfied that admission in evidence is necessary for a fair
          determination of the issue of guilt or innocence.

       We note that, on appeal, Ms. Lees also argues the evidentiary ruling was in
violation of Fed. R. Evid. 404, concerning character evidence offered for the
purpose of showing conduct. Because Ms. Lees did not raise the Rule 404
argument to the district court, we do not consider it here. See Walker v. Mather
(In re Walker) , 

, 896 (10th Cir. 1992).

                                            -14-
conviction. The Court held that once a party “preemptively introduces evidence

of a prior conviction on direct examination may not on appeal claim that the

admission of such evidence was 

. Like the defendant in

Ohler , Ms. Lees may not complain on appeal that the evidence was erroneously

admitted.

      With respect to Jade’s adjudication, we need not determine whether the

district court’s ruling was consistent with Rule 609(d) concerning the

admissibility of juvenile adjudications. Ms. Lees herself testified that previously

Jade had been “arrested for drug problems” and he had been “found with

marijuana, cocaine, methamphetamine and firearms.” Aplee. App., vol. II at 260.

As a result, impeachment of Jade by evidence of his adjudication would have had

little effect on the proceedings. Accordingly, even if erroneous, the district

court’s ruling did not prejudice Ms. Lees and does not constitute reversible error.


                                           IV

      Ms. Lees contends the forfeiture of her residence constituted an excessive

fine in violation of the Eighth Amendment of the United States Constitution.     See

Austin v. United States , 

, 622 (1993) (holding that forfeiture under

§ 881(a)(7) is limited by the Eighth Amendment’s Excessive Fines Clause). In

United States v. Bajakajian   , 

(1998), the Supreme Court formulated



                                          -15-
the analytical framework for determining whether a punitive forfeiture is

unconstitutionally excessive.

       “The touchstone of the constitutional inquiry under the Excessive Fines

Clause is the principle of proportionality[.]”      

“[T]he courts of appeals,

reviewing the proportionality determination         de novo , must compare the amount of

the forfeiture to the gravity of the defendant’s offense. If the amount of the

forfeiture is grossly disproportional to the gravity of the defendant’s offense, it is

unconstitutional.”   

(emphasis added) (footnote omitted).     7



        Bajakajian involved an international traveler who failed to declare that he

was carrying currency of more than $10,000 out of the United States, in violation

of the reporting requirements of 31 U.S.C. § 5316. The government brought a

criminal proceeding against the traveler, seeking forfeiture of the $357,144 it had

seized from him at the 

. After comparing the gravity

of the traveler’s offense with the $357,144 forfeiture sought by the government,



7
       Although Bajakajian arose from a criminal in personam forfeiture, the
Supreme Court did not suggest the gross disproportionality test does not apply to
civil in rem forfeitures that are punitive in nature. The other courts of appeals
that have considered the issue have concluded “that the ‘grossly disproportional’
standard does indeed apply to punitive civil forfeitures, thus filling the void
previously left by the Supreme Court in    Austin , 509 U.S. at 622-23.” United
States v. Ahmad , 

, 816 n.4 (4th Cir.),    cert. denied , 

(2000); United States v. 3814 N.W. Thurman St. , 

, 1197 (9th Cir.
1999); United States v. 415 E. Mitchell Ave. , 

, 476-77 (6th Cir.
1998)). We agree with this conclusion.

                                             -16-
the Court concluded that the forfeiture was grossly disproportional because it was

“larger than the $5,000 fine imposed by the District Court by many orders of

magnitude, and it [bore] no articulable correlation to any injury suffered by the

Government.” 

       To reach this conclusion, the Court examined          several factors. One of the

most important was Congress’s judgment about the appropriate punishment for

the owner’s offense. Maximum statutory fines provide guidance on the legislative

view of the seriousness of the offense.        See United States v. 

Dr.    ,

, 1309 (11th Cir. 1999),          cert. denied , 

(2000) (stating

that, under Bajakajian , “if the value of forfeited property is within the range of

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

constitutional”). The fines set out in the sentencing guidelines, promulgated by

the United States Sentencing Commission, are another way of “[t]ranslating the

gravity of a crime into monetary terms.”         

see also Bajakajian , 524

U.S. at 338-39. A dditional factors for consideration of the gravity of the offense

include the extent of the criminal activity,       Bajakajian , 524 U.S. at 337-38; related

illegal activities, 

the harm caused to other parties,    

       There are significant distinctions between        Bajakajian and the present case.

A criminal forfeiture, such as the one at issue in       Bajakajian , imposes punishment

upon an individual who has committed a specific crime.            See United States v.


                                                -17-
$8,850 in U.S. Currency , 

, 567 (1983) (a criminal proceeding “may

often include forfeiture as part of the sentence”). Here, the challenged forfeiture

is a civil in rem proceeding against property. Historically, such actions are

brought under the legal fiction that “‘the thing is primarily considered the

offender.’” Austin , 509 U.S. at 615 (quoting       J.W. Goldsmith, Jr.,Grant Co. v.

United States , 

, 511 (1921)).

       Additionally, in Bajakajian the property owner was charged with one

specific federal crime. The § 881(a)(7) forfeiture filing against Ms. Lees’

property resulted from her own possession of Valium and also her knowledge of,

or consent to, Jade’s illegal activities on the property. Neither Ms. Lees nor Jade

was charged with a federal offense. Jade was prosecuted in the state system;

Ms. Lees was subjected to probation revocation proceedings in a drug offense

unrelated to the property.

       To adapt the Bajakajian standard to these circumstances, we must

supplement the factors discussed by the Supreme Court. As we explained in

United States v. 829 Calle de Madero      , 

(10th Cir. 1996), a case

decided before Bajakajian , a proportionality analysis is “factually intensive,”

so that a catalog of factors is not “necessarily exclusive.”    

(quotation

omitted). Like Ms. Lees, the owner in       829 Calle de Madero challenged the

constitutionality of a residential forfeiture under § 881(a)(7). We stated that


                                             -18-
       [i]n evaluating proportionality, courts must compare the severity of
       the offense with which the property was involved, the harshness of
       the sanction imposed, and the culpability of the claimant. Relevant
       factors in assessing the harshness of the sanction include the value of
       the property forfeited, its function, and any other sanctions imposed
       upon the claimants by the sovereign seeking forfeiture. Against
       these factors, the severity of the offense must be evaluated, taking
       into account the extent of both the claimant’s and the property’s role
       in the offense, the nature and scope of the illegal operation at issue,
       the personal benefit reaped by the claimant, the value of any
       contraband involved in the offense, and the maximum sanction
       Congress has authorized for the offense.

addition to the    Bajakajian factors, we suggested other

considerations: the general use of the forfeited property, any previously imposed

federal sanctions, the benefit to the claimant, the value of seized contraband, and

the property’s connection with the offense.     8
                                                    Bajakajian in no way undermines


8
        829 Calle de Madero requires the government to make an initial showing
that “[t]he connection between the property and the offense [is] more than a
fortuitous or incidental one.”     

F.3d at 737. We referred to the
government’s showing as the “instrumentality test.”           

government meets
the test, then the burden shifts to the claimant to show that “the forfeiture is
grossly disproportionate in light of the totality of the circumstances.”       

a sensible allocation of the burden of proof post-        Bajakajian .

        In its supplemental brief and during oral argument, the government has
claimed that Bajakajian expanded the effect of the government’s satisfaction of
the 829 Calle de Madero “instrumentality or nexus test.” According to the
government, once it makes a showing that the property’s criminal use is more than
fortuitous or incidental, then a forfeiture of that property can never be held to be
constitutionally excessive. The government’s argument has at least two flaws.
First, the Supreme Court in Bajakajian uses the term “instrumentality” in a much
narrower sense than this court uses it in the “instrumentality test” set out in        829
Calle de Madero . Bajakajian limits “‘[i]nstrumentality forfeitures’ . . . to the
                                                                                (continued...)

                                            -19-
the relevance of these factors in a proportionality analysis for a forfeiture

proceeding under § 881(a)(7).

       Informed by Bajakajian and 829 Calle de Madero , we proceed to an

evaluation of the district court’s proportionality analysis. In ruling on the

government’s motion for summary judgment, the district court properly

articulated the standard of gross proportionality, citing   Bajakajian and 829 Calle

de Madero . It concluded that the evidentiary record was not yet sufficiently

developed to determine the validity of Ms. Lees’ claim and therefore denied the

government’s motion, subject to reconsideration at the time of trial. Aplee. App.,

vol. I at 141.

       At the close of evidence, the district court made its decision on the issue,

stating:



8
 (...continued)
property actually used to commit an offense and no 

(citing
Austin v. United States , 509 U.S. at 627-28 (Scalia, J., concurring in part and
concurring in judgment)). Second, Bajakajian contains conflicting language
concerning the relevance of an instrumentality finding in a punitive civil      in rem
proceeding under § 881(a)(7).     See 

& n.9 (implying that
instrumentality may be relevant to an excessiveness analysis in an       in rem
proceeding, but also stating that “the excessiveness of a punitive forfeiture [such
as one under § 881(a)(7)] involves solely a proportionality determination”)
(emphasis added)). As discussed in the text above, the strength of the connection
between the offense and the property is a consideration in an evaluation of
excessiveness. Contrary to the government’s contention, however, a showing           that
the connection is “more than a fortuitous or incidental one” is not dispositive of
the issue. 829 Calle de Madero , 100 F.3d at 738.

                                            -20-
       There was a matter . . . of the gross proportionality test that I said
       that I would make a decision on at the end of the evidence. And the
       principal issue there that might be at issue here is whether or not the
       forfeiture is grossly disproportionate in light of the totality of the
       circumstances.

              And from what I’m able to determine about this from the
       evidence, the severity of the offense with which the property was
       involved, the harshness of the sanction imposed and the culpability
       of the claimant makes it appear it isn’t grossly [dis]proportionate, to
       the Court.

              And I so find.

II at 372-73.

       “The factual findings made by the district courts in conducting the

excessiveness inquiry . . . must be accepted unless clearly erroneous.”

Bajakajian , 524 U.S. at 336 n.10. Notwithstanding its reference to   Bajakajian and

829 Calle de Madero , the district court made no specific findings on any of the

factors listed in those two controlling cases. In particular, there are no findings

concerning legislative penalties for offenses committed in connection with the

property, other related illegal activities, the harm caused by the offenses, the

amount of the forfeiture, the benefit to Ms. Lees, or the value of seized

contraband.

       Although information on some factors can be gleaned from the record, it is

more appropriate for the district court to make these findings in the first instance.

See Davis v. United States , 

, 961 (10th Cir. 1999) (stating that the


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appellate court “should not and thus will not perform the fact-finding function

reserved for the district courts”). To reach a reviewable proportionality analysis,

the district court must make findings on each of the relevant factors and

determine whether forfeiture of Ms. Lees’ property constitutes an excessive fine

under the Eighth Amendment. Accordingly, we remand the issue to the district

court for further proceedings consistent with this opinion.


                                         V

      In sum, we AFFIRM the district court’s rulings concerning the Oklahoma

homestead exemption, the appropriate jury instructions, and Ms. Lees’ motions

in limine. We REVERSE and REMAND the claim that forfeiture of Ms. Lees’

property violated the Eighth Amendment’s Excessive Fines Clause.




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