Opinion
Civil Action 19-cv-00257-WJM-STV
09-28-2023
UNITED STATES OF AMERICA, Plaintiff, v. 22. REAL PROPERTY LOCATED AT 23965 EAST WAGONTRAIL AVENUE, AURORA, COLORADO, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
SCOTT T. VARHOLAK UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Plaintiff's Motions for Summary Judgment [##335, 339] (“the Motions”). The Motions have been referred to this Court. [##341, 342] The Court has carefully considered the Motions and related briefing, the entire case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motions. For the following reasons, the Court respectfully RECOMMENDS that the Motions be GRANTED.
The following facts are undisputed unless otherwise indicated. Disputed facts are identified as such. These facts are drawn from the “Movant's Statement of Material Facts” section of Plaintiff's Motions for Summary Judgment [##335, 339], and Claimants' Responses to the Motions [##350, 351]. The Court refers to the sequentially numbered facts set forth in the Movant's Statement of Facts as “SOF#.” The Court periodically cites directly to the exhibits cited by the parties to provide additional context.
Jia Bao Yao and Amy Chen (the “Claimants”) purchased Defendant Real Property located at 23965 East Wagontrail Avenue, Aurora, Colorado (the “Property”) in February 2014. [##335 at SOF1; 339 at SOF1] Claimants both hold title to the Property. [#339 at SOF1] On October 10, 2018, law enforcement officers knocked on the door of the Property, and when Claimant Yao opened the door, the officers smelled “fresh growing marijuana.” [#335 at SOF2] The officers at the door identified themselves as law enforcement. [#335 at SOF3] Claimant Yao walked the officers to his locked basement door and unlocked the door for them. [#335 at SOF7, SOF8] Claimant Yao signed a Consent to Search and Seize, which was witnessed by two others, and the Property was searched. [##335 at SOF11; 339 at SOF12] During the search, “officers discovered a marijuana grow in the basement of the Property that included 828 marijuana plants and 35 light/ballast combination units.” [##335 at SOF13; 339 at SOF13] The marijuana grow operation included the use of separate rooms for plants of different sizes, and it involved light systems, fan systems and a calendar for tracking the marijuana plants. [##335 at SOF14; 339 at SOF14] During the search, officers “also discovered a hole bored into the foundation wall. Xcel Energy personnel . . . advised investigators that electrical power at the Property was being illegally diverted.” [##335 at SOF15; 339 at SOF15] Claimant Yao was responsible for the marijuana being grown at the Property and he grew marijuana with the intent of making money. [##335 at SOF16, SOF17; 339 at SOF16, SOF17] Claimant Chen was also aware that Claimant Yao was growing marijuana at the Property. [#339 at SOF18, SOF19] Claimant Chen did not report the marijuana grow at the Property to any law enforcement agencies, and she did not tell Claimant Yao that he had to move out as a result of growing marijuana at the Property. [#339 at SOF20, SOF21] As of May 1, 2023, online sources value the Property at approximately $612,521-$615,600, and as of March 16, 2023, the outstanding mortgage principle balance was $123,315.91. [##335 at SOF29, SOF30; 339 at SOF22, SOF23]
Claimants admit that that Mr. Yao signed the consent to Search and Seize, yet both Claimants dispute the admissibility of this fact on the grounds that consent was not voluntary. [##350 at SOF12; 351 at SOF11] The Claimants' response briefs do not provide a specific reference to evidence in the record to support the fact that consent was not voluntary-Claimants likewise do not brief the issue of consent nor did they file a motion to suppress or otherwise strike the discovered evidence. [See generally ##350, 351] Specifically, Claimant Chen's Response provides no support for this assertion, and Claimant Yao's Response points only to a conclusory allegation in his Answer. [##351 at SOF11; see 182 at ¶ 84] Claimants “[u]nsupported conclusory allegations . . . do not create a genuine issue of fact. To withstand summary judgment, [Claimants as] the nonmoving part[ies] must come forward with specific facts showing that there is a genuine issue for trial.” L & M Enterprises, Inc. v. BEI Sensors & Systems Co., 231 F.3d 1284, 1287 (10th Cir.2000) (quotations and internal citations omitted). The Court thus accepts as undisputed the material facts asserted by Plaintiff for which Claimants fail to support that denial with a specific reference to supporting evidence in the record. See Fed.R.Civ.P. 56(e)(2); WJM PRACTICE STANDARDS, § III(F)(4)(b) (“Any denial [of a material fact asserted by the opposing party] shall be accompanied by a brief factual explanation of the reason(s) for the denial and a specific reference to supporting evidence in the record.”); see also United States v. $78,850.00 in U.S. Currency, 444 F.Supp.2d 630, 635-36 (D.S.C. Aug. 1, 2006) (“[T]he claimants may challenge the legality of the seizure [of property sought to be forfeited], much like a defendant in a criminal case who brings a motion to suppress.” (quotation omitted) (collecting cases)).
On January 30, 2019, the Government initiated an in rem civil forfeiture action against the Property. [##1, 2] On July 25, 2021, the Claimants filed their Notices of Claim through which they asserted an ownership interest in the Property. [##72, 74] On October 26, 2021, the Claimants filed Answers to the Complaint. [##181, 182] On May 15, 2023, the Government brought Motions for Summary Judgment as to Claimant Yao's and Claimant Chen's Interest in the Property. [##335, 339] Claimants have responded to the Motions [##350, 351] and the Government has replied [##357, 359].
II. STANDARD OF REVIEW
Summary judgment is appropriate only if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., 41 F.3d 567, 569 (10th Cir. 1994). When the moving party does not bear the burden of persuasion at trial, the movant may satisfy its initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact “simply by pointing out to the court a lack of evidence . . . on an essential element of the nonmovant's claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 67071 (10th Cir.1998). If the movant carries this initial burden, the burden then shifts to the nonmovant “to go beyond the pleadings and set forth specific facts that would be admissible in evidence in the event of trial.” Id. at 671 (quotation omitted).
“[A] ‘judge's function' at summary judgment is not ‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury. See Anderson, 477 U.S. at 248-49; Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000); Carey v. U.S. Postal Serv., 812 F.2d 621, 623 (10th Cir. 1987). A fact is “material” if it pertains to an element of a claim or defense; a factual dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a reasonable party could return a verdict for either party. Anderson, 477 U.S. at 248. “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
III. ANALYSIS
The Government argues that it is entitled to summary judgment because Claimants do not dispute growing 828 marijuana plants in the basement of the Property, with the intent to make money, rendering the property subject to forfeiture under 21 U.S.C. § 881(a)(7). [##335; 339] Claimants argue that the Court should deny summary judgment because there is a material dispute of fact regarding whether the forfeiture of their home constitutes an “excessive fine” within the meaning of the Eighth Amendment. [##350 at 5-9; 351 at 6-10] The Court will address these arguments in turn.
In their Answers, both Claimants raise the Affirmative Defense that “evidence was obtained in violation of the Fourth Amendment” [##181 at 13; 182 at 13], yet Claimants' Response briefs fail to elaborate on this issue. [See generally ##350, 351] Curiously, the Claimants repeatedly express to the Court that no motions to suppress have been filed. [##350 at 4, 10; 351 at 10]. The Court will therefore not address the Fourth Amendment defenses. Dayton Hudson Corp. v. Macerich Real Est. Co., 812 F.2d 1319, 1325 (10th Cir. 1987) (“Once a party moving for summary judgment has met his initial burden, the party resisting the motion cannot rest on his pleadings.” (citing Liberles v. County of Cook, 709 F.2d 1122, 1126 (7th Cir.1983) (“[A] party opposing a summary judgment motion must inform the trial judge of the reasons, legal or factual, why summary judgment should not be entered.”)); see also $78,850.00 in U.S. Currency, 444 F.Supp.2d at 635-36 (“[T]he claimants may challenge the legality of the seizure [of property sought to be forfeited], much like a defendant in a criminal case who brings a motion to suppress.” (quotation omitted) (collecting cases)).
A. Forfeiture
To prevail in an action under 21 U.S.C. § 881(a)(7), the government must prove by a preponderance of the evidence that the property is subject to forfeiture. 18 U.S.C. § 983(c)(1); see United States v. 2121 Celeste Rd. SW, 189 F.Supp.3d 1208, 1269 (D.N.M. 2016) (“This standard of proof requires that the government show that it is more likely than not that the property is subject to forfeiture.” (quotation omitted)). All real property is subject to forfeiture by the United States if it is “used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation” of the federal drug laws punishable by more than one year imprisonment. 21 U.S.C. § 881(a)(7). Manufacturing, distributing, dispensing, or possessing with the intent to manufacture or distribute 100 or more marijuana plants, regardless of their weights, is prohibited and is punishable by a maximum penalty of forty years' incarceration and a fine of $5,000,000. 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(vii). While Section 881(a)(7) refers to property used in violation of federal law, conduct that could support federal charges is sufficient to make real property forfeitable under Section 881(a)(7) even if no federal charges were ever filed. See United States v. Wagoner Cnty. Real Est., 278 F.3d 1091, 1100-01 (10th Cir. 2002) (forfeiture action under 21 U.S.C. § 881(a)(7) where Claimants were not charged with federal offense); United States v. One Parcel of Real Est. Located at 7715 Betsy Bruce Lane Summerfield, N.C. , 906 F.2d 110, 111-12 (4th Cir. 1990) (“In civil forfeiture cases, property is subject to forfeiture even if its owner is acquitted of-or never called to defend against-criminal charge.” (quotation omitted)). To establish that real property “facilitated” an illegal drug transaction, the Government must show that there was a substantial connection between the property and the offense. 18 U.S.C. § 983(c)(3). Once the government has made this showing, the burden shifts to the claimant to prove by a preponderance of the evidence that the factual predicates for forfeiture have not been met or by showing that the claimant is an innocent owner. United States v. One Parcel Prop. Located at Lot 85, Country Ridge, a Subdivision in City of Lenexa, Johnson Cnty., Kan., 894 F.Supp. 397, 403 (D. Kan. 1995); see also 18 U.S.C. § 983.
Although Claimant Chen's Answer raises an Affirmative Defense that she “may be an innocent owner” [#181 at 13], she expressly retracts that defense in her Response to the Motion [#350 at 9]. The Court will therefore not address the innocent owner defense. See 18 U.S.C. § 983(d)(1) (“The claimant shall have the burden of proving that the claimant is an innocent owner by a preponderance of the evidence.”)
Here, Claimants do not dispute that Claimant Yao was cultivating over one hundred marijuana plants in the basement of the Property with the intent to distribute. [##350 at SOF13, SOF17; 351 at SOF13, 17] Furthermore, the Court finds there is a substantial connection between the Property and the offense where there was extensive use of the Property for the purpose of cultivating the marijuana plants, including a grow operation which spanned separate rooms, involved light systems, fan systems, and the illegal diversion of electrical power to support the operation. [##335 at SOF14, SOF15; 339 at SOF14, SOF15]. Thus, the property is subject to forfeiture under the plain language of 21 U.S.C. §§ 841(b)(1)(B)(vii), 881(a)(7) and 18 U.S.C. § 983(c)(3). See United States v. 6941 Morrison Drive, Denver, Colorado, 6 F.Supp.3d 1176, 1180 (D. Colo. 2013) (finding defendant property subject to forfeiture where the claimant did not dispute that he was cultivating over fifty marijuana plants in the basement of the property with the intent to distribute).
B. Excessive Fine
Claimants argue that the Court should deny summary judgment because there is a material dispute of fact regarding whether the forfeiture of the Property constitutes an “excessive fine” within the meaning of the Eighth Amendment. [##350 at 5-9; 351 at 6 10] The Government responds that the factors relevant to proportionality do not support a finding of excessiveness. [##335 at 8-11, 339 at 8-10, 357 at 4-10, 359 at 4-10] The Court agrees with the Government.
The Eighth Amendment Excessive Fines Clause applies to civil forfeitures of property used to facilitate drug offenses. Austin v. United States, 509 U.S. 602, 622 (1993). “In United States v. Bajakajian, (1998), the Supreme Court formulated the analytical framework for determining whether a punitive forfeiture is constitutionally excessive.” Wagoner, 278 F.3d at 1099. “The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality.” Id. (quoting Bajakajian, 524 U.S. at 324). The Court must “compare the amount of the forfeiture to the gravity of the defendant's offense[, and] [i]f the amount of the forfeiture is grossly disproportional to the gravity of the defendant's offense, it is unconstitutional.” Bajakajian, 524 U.S. at 336-37.
The government must “make an initial showing that the connection between the property and the offense is more than a fortuitous or incidental one.” Wagoner, 278 F.3d at 1101 n.8 (internal quotations and alterations omitted). Upon such a showing, the burden shifts to the claimant “to show that the forfeiture is grossly disproportionate in light of the totality of the circumstances.” Id. (internal citations omitted); see also United States v. 829 Calle de Madero, Chaparral, Otero Cnty., N.M., 100 F.3d 734, 737-38 (10th Cir. 1996) (explaining the same analytical process). In the Tenth Circuit, “the Court conducts this gross proportionality analysis by considering the factors set forth in United States v. Bajakajian, supplemented by those discussed in United States v. Wagoner County Real Estate.” 2121 Celeste Rd. SW, 189 F.Supp.3d at 1267; see, e.g., 6941 Morrison Drive, 6 F.Supp.3d at 1180 (analyzing the Bajakajian and Wagoner factors). In Bajakajian, one of the most important factors was “Congress's judgment about the appropriate punishment for the owner's offense.” Wagoner, 278 F.3d at 1100. Indeed “[t]here is a strong presumption of constitutionality where the value of a forfeiture falls within the fine range prescribed by Congress or the [Sentencing] Guideline.” 6941 Morrison Drive, 6 F.Supp.3d at 1180 (quoting United States v. Malewicka, 664 F.3d 1099, 1106 (7th Cir.2011)). In addition to the statutory penalty, the Bajakajian Court considered “the extent of the criminal activity, related illegal activities, and the harm caused to other parties.” Wagoner, 278 F.3d at 1100 (internal citations omitted); see also Bajakajian, 524 U.S. at 337-39. The Wagoner Court supplemented these factors by considering: “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.” Wagoner, 278 F.3d at 1101.
The Court finds that the Government has satisfied its burden of showing that the relationship between the Property and the illegal conduct was more than fortuitous or incidental. Claimant Yao intentionally grew marijuana in his basement with the intent of making money. [#335 at SOF16, SOF17; #339 at SOF16, SOF17] The grow operation spanned separate rooms for plants of different sizes, and involved light systems, fan systems, and a calendar for tracking the marijuana plants. [##335 at SOF13, SOF14; 339 at SOF13, SOF14] Investigators also discovered that electrical power at the Property was being illegally diverted. [##335 at SOF15; 339 at SOF15] These facts are sufficient to meet the threshold instrumentality test. See 6941 Morrison Drive, 6 F.Supp.3d at 1181 (using personal residence to grow over fifty marijuana plants in the basement with the intent to distribute, while bypassing the electrical meter to avoid detection of the grow operation is sufficient to meet the threshold test). Therefore, Claimants bear the burden of showing that the forfeiture is grossly disproportionate to the offense.
Claimants contend that the forfeiture of the Property constitutes an “excessive fine” because the value of the Property is grossly disproportionate as compared to the fine imposed pursuant to the U.S. Sentencing Guidelines. [##350 at 7-8, 351 at 8-9] When the value of forfeited property is within the range of fines prescribed by Congress, a strong presumption arises that the forfeiture is constitutional. See Malewicka, 664 F.3d at 1106. It is undisputed that the monetary value of the Property is approximately $489,205.09 -$492,284.095.[##350 at 9, 351 at 10] This amount is less than the $5,000,000 fine that could be imposed under 21 U.S.C. § 841(b)(1)(B)(vii). Claimants nonetheless argue that, under the Sentencing Guidelines, the advisory range for a fine that may be imposed for this offense is between $15,000 - $150,000, and the Property's forfeiture exceeds that maximum Guideline range. [##350 at 8, 351 at 8] Claimants are incorrect. The Guidelines state that where a statute authorizes a maximum fine greater than $500,000, the court may impose a fine up to the maximum authorized by the statute. See U.S.S.G. § 5E1.2(c)(4). In this case, that is the $5,000,000 that is authorized under 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(vii). Thus, contrary to Claimants' assertion, the “Guidelines range maximum is . . . $1,000,000.” United States v. Basurto, 117 F.Supp.3d 1266, 1311 n. 22 (D.N.M. 2015). Thus, based upon the maximum statutory and Guideline penalty, a fine of $489,205.09 - $492,284.095 (value of Property) would not be considered grossly disproportionate to the crime.
As of May 1, 2023, online sources value the Property at approximately $612,521-$615,600, and as of March 16, 2023 the outstanding mortgage principle balance was $123,315.91. [##335 at SOF29, SOF30; 339 at SOF22, SOF23]. “[T]he owner's equity in the property must be accounted for when determining the amount of a forfeiture.” United States v. 129 Reservoir Ridge Dr. Cullowhee, N.C., 2020 WL 5550391, at *3 (W.D. N.C. Sept. 16, 2020) (citation omitted).
Further, the Bajakajian factors, on balance, weigh against Claimants. See Bajakajian, 524 U.S. at 337-40 (considering the extent of the criminal activity, related illegal activities, and the harm caused to other parties). Here, the sheer number of marijuana plants found at the Property is sufficient to find the extent of the crime weighs in the government's favor. See United States v. One Residential Prop. Located at 325 Skyline Circle, Fallbrook, Cal., 534 F.Supp.2d 1163, 1166 (S.D. Cal. 2008) (finding the substantial number of marijuana plants, 476 plants and 248 seedlings, supported the government's position). Additionally, the grow operation at the Property was evidently sophisticated, encompassing “828 marijuana plants and 35 light/ballast combination units” [##335 at SOF13, 339 at SOF 13], while involving “separate rooms for plants of different sizes, light systems, fan systems, and a calendar for tracking the marijuana plants” [##335 at SOF14, 339 at SOF14]. Claimant Yao facilitated this operation with the intent of making money [#335 at SOF17; #339 at SOF17] and Claimant Chen was aware that Claimant Yao was growing marijuana at the Property [#339 at SOF18, SOF19]. Thus, the criminal activity was extensive. Moreover, the grow operation involved related illegal activity-diverting electrical power. [##335 at SOF15, ##339 at SOF15] With respect to the harm caused, there is “no evidence that [either Claimant] provided drugs to minors, participated in an organized crime ring or gang, or cultivated marijuana so as to harm the natural environment.” 6941 Morrison Drive, 6 F.Supp.3d at 1181. Nonetheless, the Claimants “should bear responsibility for [the] societal harm caused by the cultivation of marijuana on the defendant property.” 325 Skyline Circle, 534 F.Supp.2d at 1168. Thus, the Bajakajian factors weigh against Claimants.
In her Response to the Motion, without citation to any evidence, Claimant Chen asserts that she “was not involved in the hands-on of the growth operation.” [#350 at 9] But such “[u]nsupported conclusory allegations . . . do not create a genuine issue of fact. To withstand summary judgment, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.” L & M Enterprises, 231 F.3d at 1287 (quotations and internal citations omitted). To the extent Claimant Chen attempts to deny culpability for the marijuana grow operation in support of her Eighth Amendment claim, the argument is unavailing as it is contradicted by the undisputed facts of this case. Claimant Chen admits that she was aware Claimant Yao intended to grow and was growing marijuana at the Property, that she did not report the marijuana grow to any law enforcement agencies, and that she did not tell Claimant Yao that he had to move out of the Property because he was growing marijuana at the Property. [#350 at SOF17-21] And Claimant Chen failed to introduce any evidence that indicates she took action to stop the illegal grow operation. Indeed, in her response Claimant Chen disavows an innocent owner defense and even admits that her involvement was “limited.” [#350 at 9] Thus, given all the other factors that the Court must consider, the Court cannot conclude that the fact that Claimant Chen's involvement may have been more limited than Claimant Yao's renders the forfeiture excessive as to Claimant Chen. States v. Milbrand, 58 F.3d 841, 848 (2d Cir.1995) (forfeiture of mother's interest in farm on which son conducted marijuana trafficking was not excessive because evidence demonstrated that she must have known of criminal conduct taking place there).
The Court thus turns to the factors set forth in Wagoner. 278 F.3d at 1101 (“”[I]n addition to the Bajakajian factors, [the Tenth Circuit has] 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.”). First, “the general use of the forfeited property favors [Claimants], as the property is [their] personal residence.” 6941 Morrison Drive, 6 F.Supp.3d at 1181. The next factor, the previous imposition of federal sanctions, “tips against [Claimants] as there is no evidence that [they have] incurred any other federal penalties related to the grow operation.” Id. at 1182. The benefit that Claimants derived from the grow operation tips against them as well, as the Government has introduced evidence that indicates Claimants received substantial profits during the relevant timeframe. For example, between July 23 and August 8, 2018 Claimants' shared bank account reveals deposits totaling $294,982.90. [##358-7 at FIRSTBANK00000108, 360-7 at FIRSTBANK00000108]. At this time, Claimant Chen's adjusted gross income was $11,980 [#339 at SOF4], and Claimant Yao could not identify where the majority of this money came from [#358-1 at 126:9-137:1]. The government did not introduce evidence regarding the value of the contraband obtained, however considering the substantial number of marijuana plants found at the Property, this factor is, at best, neutral. Finally, the Property was closely connected to the offense because it was used to cultivate and store a substantial number of marijuana plants and because Claimants diverted electricity to the Property. Thus, as with the Bajakajian factors, the Court finds that the Wagoner factors weigh against Claimants.
Claimants admit that that marijuana was grown at the Property from June 2018 until October 2018. [##350 at 5, 351 at 6]
Going beyond the factors, Claimants' suggest that forfeiture is grossly disproportional to the offense because marijuana “is legal under State law.” [##350 at 9, 351 at 10] In 6941 Morrison Drive, another court in this district evaluated this proportionality argument and found it unavailing where “claimant possessed more marijuana plants than allowed for personal use and obviously did not have a license to commercially grow marijuana” under state law. 6 F.Supp.3d at 1183; see also id. at 1183-84 (“The fact of the matter is that claimant used his own home to conduct a marijuana grow operation that was illegal under both state and federal law.”). The same is true here. Under the Colorado Constitution, the personal use of marijuana is legally limited to possession of one ounce or less and the cultivation of no more than six marijuana plants per person. Colo. Const. art. XVIII, § 16(3)(a)-(b). Here, Claimants obviously exceeded the legal limit, and there is no proof to suggest either Claimant has a valid license to operate a marijuana cultivation facility.
The Court thus finds that forfeiture of the entire house is not grossly disproportionate under the totality of the circumstances. “While the home undoubtedly has sentimental value, [Claimants] knowingly put [their] ownership at risk by using it for illegal activities.” 6941 Morrison Drive, 6 F.Supp.3d at 1184. Given that the forfeiture is presumptively constitutional, see Malewicka, 664 F.3d at 1106, Claimants have not carried their burden of showing that the fine is excessive under the Eighth Amendment.
IV. CONCLUSION
For the foregoing reasons, the Court respectfully RECOMMENDS that Plaintiff's Motions for Summary Judgment [##335, 339] be GRANTED and that Judgement enter in favor of Plaintiff.
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 57980 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's. recommendation de novo despite lack of an objection does not preclude application of “firm waiver rule”); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).