PUBLISH

                    IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                   FILED
                                   _______________              U.S. COURT OF APPEALS
                                                                  ELEVENTH CIRCUIT
                                      No. 97-6354                      12/31/98
                                   _______________                 THOMAS K. KAHN
                                                                        CLERK
                           D. C. Docket No. CV-96-HM-216-J


UNITED STATES OF AMERICA,

                                                                        Plaintiff-Appellee,

                                          versus

LAND, WINSTON COUNTY, Certain Real
Property Located near Highway 195,
Winston County, Alabama, together with all
improvements, fixtures and
appurtenances thereon,

                                                                               Defendant,

MELPHIA BAILEY WOODS,

                                                                      Claimant-Appellant.
                          ______________________________

                      Appeal from the United States District Court
                         for the Northern District of Alabama
                        ______________________________
                                 (December 31, 1998)


Before ANDERSON and BIRCH, Circuit Judges, and COHILL*, Senior District Judge.

*Honorable Maurice B. Cohill, Jr., Senior U.S. District Judge for the Western District of
Pennsylvania, sitting by designation.
BIRCH, Circuit Judge:

     Melphia Woods appeals the district court's order granting

summary judgment to the United States in this forfeiture action

brought pursuant to 18 U.S.C. § 1955(d). Woods contends that

summary judgment should not have been granted because (a)

she did not receive proper notice of the forfeiture action and (b)

there are disputed material facts concerning the posting of “No

Trespassing” signs on the property. Woods also argues that the

district court failed to rule on the excessive fines affirmative

defense on the motion for summary judgment and improperly

used a “probable cause” burden of proof in the forfeiture action.

For the reasons that follow, we find that the government met its

probable cause burden in the forfeiture action. However, we find

that Woods did not receive proper notice of the forfeiture. We

REMAND the case to the district court to assess damages, if any,

for the due process violation and to consider, in the first instance,

Woods' excessive fines affirmative defense.

                                   2
                       I.   BACKGROUND

     In 1981, Melphia Woods and her now deceased husband

opened the “Clear Creek Sportsman's Club” (CCSC) on the

property in question. From 1981 until the CCSC was closed in

1992, it operated for at least a part of every cockfighting season,

except 1984-85. Cockfights were held once every two weeks

throughout the season which ran from the end of the October to

the following June or July. It is undisputed the CCSC was used

as a venue for cockfighting and illegal gambling. In 1987, Woods

agreed to lease the property under a lease-sale contract to

Tommy R. Wood, Ralph Osborn, and Larry Osborn. After

entering into this agreement, Woods operated a concession stand

on the property during the 1987-88 cockfighting season.

Subsequently, Woods only “cleaned up” the premises after events

for six dollars per hour. Woods and her husband spent over

$100,000 on the building and $8,000 in improvements. The



                                  3
lease/purchasers paid Woods “four or five payments” and made a

$10,000 down payment toward a $90,000 purchase price.

     On May 12, 1993, the United States filed a civil forfeiture

action seeking the in rem forfeiture of the property for its use in

violation of 18 U.S.C. § 1955, which prohibits illegal gambling

businesses. Woods was the only claimant to challenge the

forfeiture. The forfeiture action was voluntarily dismissed by the

United States on procedural grounds. On January 26, 1996, the

United States filed this second civil forfeiture action, again

pursuant to 18 U.S.C. § 1955.

     The district court entered an order for warrant of arrest in

rem on April 2, 1996. The warrant was executed by posting

notice of the warrant of arrest on the property on April 16, 1996.

Melphia Woods was again the only claimant to the property. The

district court granted the United States' motion for summary

judgment on March 24, 1997.

                         II.   DISCUSSION

                                   4
     We review de novo a district court's order granting a motion

for summary judgment on an issue of law, United States v. Four

Parcels of Real Property Located in Greene & Tuscaloosa

Counties, 

, 1437 (11th Cir. 1991) (en banc). In a

summary judgment motion, we view all facts and reasonable

inferences therefrom in the light most favorable to the

nonmoving party. Rowe v. Schreiber, 

, 1383

(11th Cir. 1998).

A.   Due Process

     Woods argues that the district court's holding that posting of

an arrest warrant does not constitute seizure of the property is in

conflict with our holding in United States v. 408 Peyton Road,

S.W., 

(11th Cir. 1997). Additionally, Woods

argues that there was an issue of material fact as to when, and for

how long, the United States posted “No Trespassing” signs on the

building. The United States replies that the posting of the arrest

warrant was executed pursuant to court order and that the

                                 5
government took steps to ensure that Woods retained the right to

full occupancy, use, and enjoyment of the property.

       The Due Process Clause of the Fifth Amendment

guarantees that “[n]o person shall . . . be deprived of life, liberty,

or property, without due process of law.” Generally, individuals

must receive notice and an opportunity to be heard before the

government deprives them of property. United States v. James

Daniel Good Real Property, (“Good”), 

, 48, 

, 498, 

(1993).1 The purpose of requiring prior

notice and a hearing is to “protect [the owner's] use and

possession of property from arbitrary encroachment – to minimize

substantively unfair or mistaken deprivations of property.”

Fuentes v. Shevin, 

, 80-81, 

, 1994-95,

(1972). To demonstrate the triggering of a

“seizure,” the claimant must put forth evidence that the

       1
         While the property at issue in Good was a personal residence, the Supreme Court
specifically noted the constitutional requirements outlined in that case applied to all real
property. 

, 114 S. Ct. at 505 (“The constitutional limitations we enforce in
this case apply to real property in general, not simply to residences.”).

                                                6
government has interfered with her right to occupy, use, enjoy, or

receive rents from the defendant real property while the forfeiture

action is pending. 

, 114 S. Ct. at 501. Here,

Woods has argued that the notice of warrant of arrest coupled

with the “No Trespassing” sign that was placed on her property

during the first forfeiture action and remained posted after the

filing of the second forfeiture action was initiated indicate that the

property was being “seized,” as that term is defined in Good to

bring the government's actions within the Due Process Clause.

     After the filing of briefs in this appeal, we granted en banc

rehearing of 408 Peyton Road. As a result, the district court did

not have the benefit of our recent ruling in 408 Peyton Road, ___

F.3d ___ (11th Cir. 1998) (en banc) at the time it rendered its

opinion in this case. In 408 Peyton Road, we recognized that “the

Government's choice to exercise physical control over the

defendant real property should not be regarded as the sine qua

non of a constitutionally cognizable seizure.” ___ F.3d at ___. In

                                   7
that case, the district court issued both an “arrest warrant” and a

“seizure warrant.” We specifically left open the question of

whether due process requirements would be triggered for the use

of an “arrest warrant” alone. This distinction is an issue we face in

the present case. However, we need not definitively hold that all

arrest warrants will constitute cognizable seizures. Rather, we

hold that in the factual circumstances presented in this case, there

was “meaningful interference with [Woods'] possessory interests”

so as to constitute a seizure. Maryland v. Macon, 

,

469, 

, 2782, 

(1985).

     In Good, the Supreme Court considered a forfeiture

proceeding where the government executed an “arrest warrant”

and a “seizure warrant” without notice or a hearing. The Court

held this to be a violation of the Due Process Clause. However,

the Court left open the possibility that certain warrants would not

trigger due process requirements. 

, 

at 503.2 In 408 Peyton Road, we recognized that the title of a

warrant may not be determinative of whether there has been a

constitutionally cognizable seizure. ___ F.3d at ___ n.9. We

therefore must consider the specific facts of this case in

determining whether the government's actions in execution of the

arrest warrant were a “seizure” so as to trigger due process

requirements.

       The “Warrant for Arrest and Notice” to the U.S. Marshal

states, in relevant part:

             And, the Court having ordered that grounds for
       application for issuance of warrant of arrest in rem do
       exist, YOU ARE, THEREFORE, HEREBY
       COMMANDED to arrest the above described property.
             YOU ARE FURTHER COMMANDED TO POST
       upon said real property in an open and visible manner
       notice of such seizure at the time thereof, making the
       government's seizure open and notorious;


       2
         Specifically, the Court cited United States v. TWP 17 R 4, Certain Real Property in
Maine, 

(1st Cir. 1992), where the court held that there had been no “seizure” when
a warrant of “arrest in rem” was issued by the clerk of the district court directing the U.S.
Marshall to “arrest the property . . . and detain the same in your custody until further order of the
Court.” 

The court found that because there was no direction to the Marshal to
actually seize the property, the warrant of “arrest in rem” did not trigger the application of the
Due Process Clause. 

                                                  9
            AND FURTHER TO SERVE upon the record
       owner thereof a copy of this warrant in a manner
       consistent with the principles of service of process of an
       action in rem under the Supplemental Rules For Certain
       Admiralty and Maritime Claims, Federal Rules of Civil
       Procedure, within a reasonable time of seizure . . .

R1-5-1-2 (emphasis added).

       Additionally, Woods asserts that the United States Marshal

posted a “No Trespassing” sign on the property at the time he

served her with notice of the arrest warrant. R1-24-3. Woods

attached a photograph to her affidavit which she avers was taken

on April 19, 1996, the day the warrant of arrest was posted. The

photograph shows two “No Trespassing” signs – one faded and

one clearly visible. R1-24-Exh. The government contends that

no new “No Trespassing” sign was posted on the property

when the arrest warrant was served in the second forfeiture

action on April 16, 1996.3


       3
       As explanation for the apparent confusion, the government asserts that a “No
Trespassing” sign was posted on the property after the first forfeiture action filed by the
government on May 23, 1992. Because of fading, a new “No Trespassing” sign was posted at
some point after the first forfeiture action, but before the second forfeiture action. R1-28-1-2.

                                                10
       We note at the outset that, at the very least, there is an

issue of material disputed fact as to the timing of the posting of

the “No Trespassing” sign that effectively should have

precluded the granting of summary judgment on the due

process issue. Even were it not for this critical disputed factual

issue, however, it is undisputed that a “No Trespassing” sign

existed on the property at the time the arrest warrant for the

second forfeiture was served. An owner cannot be expected to

construe the sign as meaningless because it was posted during

the first forfeiture action that had been dismissed, and not

during the second pending forfeiture action. The plain fact is

that sign remained posted.4 If the government no longer

intended the “No Trespassing” signed to be enforced, it should

have been removed. Leaving the sign posted on the property

inhibited Woods' right to full occupancy, use, and enjoyment of


       4
         The government has not disputed the authenticity of Woods' photograph of April 19,
1996, but rather has disputed her contention that a new “No Trespassing” sign was posted after
the initiation of the second forfeiture proceeding. Brief of Appellee at 18.

                                              11
the property. See 

, 114 S. Ct. at 501

(seizure of property gives the government “the right to prohibit

sale . . . to evict occupants, to modify the property, to condition

occupancy, to receive rents, and to supersede the owner in all

rights pertaining to the use, possession, and enjoyment of the

property.”).

     We are unpersuaded by the government's suggestion that

the arrest warrant should not trigger due process requirements

because once the government posts an arrest warrant, an owner

may remove the notice without incurring any legal penalty. While

this may state a fine legal point, see United States v. TWP 17 R 4,

Certain Real Property in Maine, 

, 990 (1st Cir. 1992),

we find the language in an arrest warrant referring explicitly to

“seizure” of the arrested property coupled with the continued

posting of a “No Trespassing” sign, as occurred in this case,

would lead an ordinary person to conclude that her rights to the



                                  12
property had been inhibited.5 In addition, although the

government also contends that the U.S. Marshal who posted the

warrant in the second forfeiture action told Woods that he was not

taking possession of the property,6 we conclude, based on the

record, that the government's actions did not clearly communicate

to Woods the status of the property.7 Again, a “No Trespassing”

sign was posted on the property at the initiation of the first

forfeiture proceeding and remained on the property after the

initiation of the second forfeiture proceeding. In addition, the

Notice of Warrant of Arrest indicated that the property had been


       5
        A warrant for arrest gives the “impression that something has been arrested, that is,
taken into custody or seized.” United States v. Two Parcels of Real Property Located at 101 N.
Liberty St. & 105 N. Liberty St., 

, 1380-81 (M.D. Ala. 1997) (where court
labeled authorization to post notice of forfeiture an “order” rather than a “warrant” because “a
warrant has typically been taken in these forfeiture cases to authorize seizure as well.”).
       6
         The Marshal stated that he “explained to Ms. Woods that a new civil action was pending
against the defendant real property but that she would retain custody and control over the
property. When Ms. Woods asked me if she could sell the defendant real property, I advised her
that the Government had filed a new notice of lis pendens which would likely affect her ability
to convey free and clear title to the defendant real property.” R1-28-3.
       7
        Even ordering the U.S. Marshal not to seize the property may not necessarily immunize
a warrant from due process concerns. See, e.g., 

, 114 S. Ct. at 501 (relying
on Connecticut v. Doehr, 

, 

, 

(1991) for the proposition
that mere attachment of premises, without prior hearing, though not infringing on any tangible
property rights violates due process).

                                               13
seized. Woods' understanding that she no longer retained full use

of the property under these circumstances, therefore, was

reasonable.

       Our holding in this case does not signify that in every

situation an “arrest warrant” will constitute a cognizable seizure.8

We recognize that “[i]n the case of real property, the res may be

brought within the reach of the court simply by posting notice on

the property and leaving a copy of the process with the occupant.”

, 114 S. Ct. at 503. However, in this case,

the government did not simply “post notice” on the property. The

Notice of Warrant of Arrest contained language of “seizure” which

would leave the property owner with the impression that she does

not have full custody or control over the property. Additionally, a

“No Trespassing” sign remained posted on the property. It does

       8
                See United States v. Turner, 

, 245 (4th Cir. 1991) (“arrest warrant”
analogous to summons, rather than “warrant” within meaning of Fourth Amendment); United
States v. Real Property Known & Numbered as 429 S. Main St., 

, 1159 (S.D.
Ohio 1995) (due process requirements of notice and hearing not triggered when U.S. Marshal
served in rem warrant, executed an occupancy agreement and then left the property and no one
from Marshal's office attempted to exercise control over the property or interfere with the
claimant's collection of rent).

                                               14
not satisfy the Due Process Clause to tell the property owner she

has full control over the property, yet leave her with documents

indicating the property has been seized and there is to be “No

Trespassing.”

       The government may still protect its interest in the property

without violating process due to the owner. “The Government's

legitimate interests at the inception of the forfeiture proceedings

are to ensure that the property not be sold, destroyed, or used for

further illegal activity prior to the forfeiture judgment. These

legitimate interests can be secured without seizing the subject

property.” 

, 114 S. Ct. at 503. For example,

the government may file a lis pendens and may post on the

property a summons, a copy of the verified complaint for

forfeiture, and a notice of the forfeiture action. This provides

notice of the forfeiture to the owner without seizing the property.9

       9
        See, e.g., United States v. Real Property Located at 3284 Brewster Drive, 

, 833-34 (M.D. Fla. 1996) (warrant of arrest in rem did not trigger application of Due Process
Clause because warrant expressly avoided seizure of property). In 3284 Brewster Drive, the
warrant stated: “This is not a seizure warrant. This property is not being seized or taken into

                                               15
Such notice could even indicate that a warrant of arrest in rem will

be sought in the future by the government.

       We find the arrest warrant and attendant circumstances in

this case create a constitutionally cognizable seizure. As the

Supreme Court instructed in Good, we must evaluate the due

process implications of the challenged deprivation under the

three-fold test enunciated in Mathews v. Eldridge, 

,

335, 

, 903, 

(1976). We discuss (a)

the private interests that will be affected by a nonphysical seizure,

(b) the risk of an erroneous deprivation, and (c) the government's

interest in ex parte seizures. See 408 Peyton Road, ____ F.3d at

___-___.

       First, we have found that the official acts in this case

constitute a seizure of property commensurate with the private

interests at stake in Good. The protections of the Due Process


custody. Nothing in this Order interferes with the owners' right to maintain control over their
property, their right of occupancy, their right to unrestricted use and enjoyment, and their right to
receive rents.” 

The arrest warrant also stated that “the real property is deemed
released immediately after arrest.” Id..

                                                 16
Clause are not confined to physically-invasive seizures. 408

Peyton Road, ___ F.3d at ___. The seizure here has affected

constitutionally significant interests. Second, as the Supreme

Court found in Good, the practice of ex parte seizure creates an

unacceptable risk of error. 

, 114 S. Ct. at

501.        Third, we have found that the government may secure its

legitimate interests without seizing the subject property. 408

Peyton Road, ___ F.3d at ___.

       Therefore, applying the three-part Mathews balancing test,

we hold the procedures employed by the government in this case

do not comport with the Due Process Clause. Absent exigent

circumstances, the Due Process Clause requires the government

to afford notice and a meaningful opportunity to be heard before

seizing real property. 

, 114 S. Ct. at 505;

408 Peyton Road, ___ F.3d at ___.10 Accordingly, we REVERSE

       10
          In order to establish exigent circumstances, the government would have to show that
less restrictive means – lis pendens, restraining order, or bond – would not suffice to protect the
government's interest in the real property. 408 Peyton Road, ___ F.3d at ___. The government
in this case has not alleged the existence of any exigent circumstances that would justify ex parte

                                                17
the district court's summary judgment order with respect to the

due process analysis. However, we AFFIRM the district court's

unchallenged holding that the government established probable

cause for the forfeiture action and that Woods did not show by a

preponderance that the property was not used illegally.

       In 408 Peyton Road, we established that:

       when the Government fails to provide predeprivation
       notice and a hearing, but the property is found to be
       subject to forfeiture after the process due has been
       afforded, the proper remedy for a seizure in violation of
       the Fifth Amendment Due Process Clause is the return
       of any rents received or other proceeds realized from
       the property during the period of illegal seizure.

___ F.3d at ___. Accordingly, we REMAND to the district court

to determine whether Woods was deprived of any rents received

or other proceeds realized from the property during the period of

illegal seizure.

B.     Excessive Fine




seizure of Woods' real property.

                                   18
       Woods argues that the district court could not properly have

granted summary judgment without addressing her affirmative

defense challenging the forfeiture as an “excessive fine” in

violation of the Eighth Amendment.11 The government responds

that Woods had the burden to raise the excessive fines argument

because it is an affirmative defense to the forfeiture. Because

Woods failed to raise the objection at the district court, the

government argues, she waived her right to make this argument

on appeal.

       Woods raised the excessive fine issue as an affirmative

defense in her answer to the government's forfeiture complaint.

R1-8-7. Woods also repeated the excessive fines defense in her

affidavit. R1-24-5. In Woods' cross-motion for summary

judgment, the prior affidavits and filings of the appellant were

incorporated. R1-26-2. “[I]f a party hopes to preserve a claim,

       11
        We do not understand Woods to be relying here on an “innocent owner” defense under
19 U.S.C. § 1955, although we have previously held such a defense exists under this section.
See United States v. One Single Family Residence Located at 18755 N. Bay Rd., 

,
1496 (11th Cir. 1994).

                                             19
argument, theory, or defense for appeal, she must first clearly

present it to the district court, that is, in such a way as to afford

the district court an opportunity to recognize and rule on it.” In re

Pan Am. World Airways, Inc., 

, 1462 (11th Cir.

1990). Here, Woods clearly identified excessive fines as an

affirmative defense in her answer to the government's forfeiture

complaint. She identified the basis for this claim in her affidavit by

comparing the potential forfeit of her business property to the

penalty suffered by the three lessees of the property who

operated the cockfighting arena from 1987 to 1992. They pled

guilty to misdemeanor charges and were fined $3000. R1-24-5.

Since Woods specifically incorporated into her cross-motion for

summary judgment the arguments in her answer and affidavit –

which included her challenge to the forfeiture as an excessive fine

– Woods did not waive this argument and it is properly before us.

See, e.g., National R.R. Passenger Corp. v. Florida, 

, 1535 n.6 (11th Cir. 1991) (issue properly before circuit court

                                   20
where defendant incorporated arguments from motion to dismiss

into his reply to plaintiff's motion for preliminary injunction).

       In Austin v. United States, 

, 

,

(1993), the Supreme Court held the Eighth

Amendment12 Excessive Fines Clause applies to in rem civil

forfeiture proceedings. We have applied an excessive fines

analysis specifically to forfeitures under 18 U.S.C. § 1955 in

United States v. One Single Family Residence Located at 18755

North Bay Road, 

, 1498-99 (11th Cir. 1994). The

Supreme Court declined in Austin to set out a test for determining

whether a forfeiture is constitutionally 

, 113 S. Ct. at 2812. However, in United States v. One

Parcel Property Located at 427 & 429 Hall Street, 

(11th Cir. 1996), we held that the application of the Excessive

Fines Clause to civil forfeitures requires



       12
        “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishment inflicted.” U.S. Const., Amend. 8.

                                               21
       a review of the proportionality of the fine imposed. That
       is, a court must ask: Given the offense for which the
       owner is being punished, is the fine (imposed by civil
       forfeiture) excessive? While the core of proportionality
       review is a comparison of the severity of the fine with
       the seriousness of the underlying offense, it would be
       futile to attempt a definitive checklist of relevant factors.
       The relevant facts will necessarily vary from case to
       case.

(footnote omitted).13

       Because the issue of excessive fines may depend on various

factors and conduct with which the district court is more familiar

than this court, see United States v. One 1978 Piper Cherokee

Aircraft, 

, 1210 (9th Cir. 1996), we REMAND to the

district court to determine in the first instance whether the

       13
          We note the Supreme Court recently set out a similar test for excessiveness of fines in a
criminal forfeiture case.
        The touchstone of the constitutional inquiry under the Excessive Fines Clause is
        the principle of proportionality: The amount of the forfeiture must bear some
        relationship to the gravity of the offense that it is designed to punish. . . . We now
        hold that a punitive forfeiture violates the Excessive Fines Clause if it is grossly
        disproportional to the gravity of a defendant's offense.
United States v. Bajakajian, ___ U.S. ___, 

, 2036, 

(1998).
        We recognize the Court's decision in Bajakajian has raised questions about the
applicability of Austin to all modern civil in rem forfeitures. 

n.6; United
States v. Real Property Known & Numbered as 415 E. Mitchell Ave., 

, 477 N.3
(6th Cir. 1998). However, we rely on our holding in 18755 North Bay Road for the proposition
that the Excessive Fines Clause specifically applies to forfeitures under 18 U.S.C. § 1955. See
also United States v. Taylor, 

, 790 (4th Cir. 1994) (holding Austin applicable to 18
U.S.C. § 1955).

                                                22
forfeiture here constituted an excessive fine in violation of the

Eighth Amendment.

C.     Probable Cause

       Last, we consider the standard of proof the government must

meet in a forfeiture case. Woods argues that the district court's

application of a “probable cause” standard of proof to the

important property rights involved in this case constitutes a due

process violation. The government responds that “probable

cause” is the standard which the district court was bound to apply

pursuant to 19 U.S.C. § 1615, governing forfeiture proceedings.

We recently have reaffirmed that probable cause is the standard

of proof the government must meet in forfeiture cases. United

States v. One Beechcraft King Air 300 Aircraft, 

, 829-

30 (11th Cir. 1997) (per curiam) (upholding the constitutionality of

19 U.S.C. § 1615, which provides for the use of the “probable

cause” standard in civil forfeitures).14 There is no dispute that the

       14
        We note, however, that Woods' challenge here is not frivolous. See United States v.
One Parcel of Property Located at 194 Quaker Farms Rd., 

, 990 (2d Cir.), cert.

                                              23
government clearly met its burden in this case, as the district court

painstakingly detailed. Although Woods suggests that we should

impose on the government a more stringent standard of proof, our

precedent holds otherwise.

                                III.    CONCLUSION

       Because we find the government's action violated the Due

Process Clause, we REVERSE the district court's summary

judgment order with respect to the due process analysis.

However, we AFFIRM the district court's holding that the

government established probable cause for the forfeiture action

and that Woods did not show by a preponderance that the

property was not used illegally. We REMAND the case for

consideration of damages, if any, that result from the due process

violation. We also REMAND to the district court for consideration

in the first instance of whether the forfeiture violated the


denied, ___ U.S. ___, 

, 

(1996) (“Good and Austin reopen the
question of whether the quantum of evidence the government needs to show in order to obtain a
warrant in rem allowing seizure – probable cause – suffices to meet the requirements of due
process.”).

                                              24
Excessive Fines Clause of the Eighth Amendment. We AFFIRM

the district court's use of the probable cause standard of proof in

forfeiture cases.

     AFFIRMED in part, REVERSED in PART and REMANDED

in part.




                                 25