Michael Raab is an associate attorney in the law offices of James E. Blatt, and prepared the Supreme Court briefs in U.S. v. Bajakajian.
For the first time in the country’s his- tory, the United States Supreme Court has ruled that a criminal forfeiture sought by the government violated the excessive fines clause of the Eighth Amendment . In United States v. Bajakajian, 118 S.Ct. 2028, the divided Court (5-4) established a constitutional excessive fines analysis and provided some guidance for future challenges to overzealous attempts to forfeit legitimate property. Writing for the majority, Justice Clarence Thomas stated simply that, “If the amount of [a] forfeiture is grossly disproportional to the gravity of the defendant’s offense, it is unconstitutional.”
On June 9,1994, Hosep Bajakajian and his wife attempted to board an Alitalia overseas flight at Los Angeles International Airport. Unbeknownst to Mr. Bajakajian, his flight was the subject of an examination by a customs service canine trained to detect the presence of currency. The canine alighted on the Bajakajian’s luggage and a search of the luggage revealed $357,144.
A customs service inspector approached Mr. Bajakajian as he and his wife were preparing to board their flight. The inspector explained the $10,000 and above currency reporting requirements and asked the Bajakajians to declare their currency. Mr. Bajakajian informed the inspector that he and his wife together possessed $15,000. The currency was seized and Mr. Bajakajian was taken into custody. He was ultimately charged, in a three-count indictment, with 31 U.S.C. 9 5316(a)(l)(A), 31 U.S.C. 5 5322(a); 18 U.S.C. 5 1001; and 18 U.S.C. 5 982(a)(1). The government sought forfeiture of the full amount of seized currency, even after a district court ruled the currency was lawfully possessed and intended for a lawful purpose.
The threshold issue in the Supreme Court’s analysis is whether a forfeiture, typically considered civil, can be brought within the purview of the excessive fines clause. In Bajakajian, the Court held the Eighth Amendment applies only to those forfeitures which constitute punishment and, hence, can be characterized as fines. Factors considered by the Court were whether the forfeiture served as a deterrent, whether forfeiture was predicated on a criminal conviction, whether a n ” innocent owner” defense may be asserted, and whether the forfeiture serves the remedial purpose of compensating the government for loss. As punishment, the forfeiture in Bajakajian could be considered a fine and subject to the Eighth Amendment’s proscription against excessive fines.
Once a determination is made that the excessive fines clause is applicable, the sole remaining issue is excessiveness. Relying on cases addressing the appropriateness of punishment under the cruel and unusual punishment clause, the Court adopted a standard of gross disproportionality, comparing the gravity of the offense and the amount of the forfeiture. Appellate review of the comparison shall be made de novo.
The Court did not specify what factors should be taken into consideration in this comparison. The Court did, however, stress deference to be provided to the legislature in determining appropriate punishments. The Court examined the punishment available under the statutory scheme, the United States Sentencing Guidelines, the lack of an appreciable loss to the government as the victim, as well as the lawful nature and intended purpose for the seized currency.
The Court categorically rejected the government’s reliance on over 200 years of precedent supporting full forfeiture of goods for customs violations. In the Court’s view, the majority of these traditional in rem customs forfeitures serve the remedial purpose of compensating the government for lost revenue. Since there was no loss of revenue here (Bajakajian’s offense was simply a failure to report), the in rern cases were “inapposite.”
The Court also rejected the government’s argument that the property could b e forfeited a s a n instrumentality of he crime. While the Court hinted that an instrumentality approach may be warranted for in rern or “guilty property” orfeiture, it is irrelevant to an in personam proceeding. Since criminal fines serve to punish, their validity “involves solely a proportionality determination.”
Bajakajian provides an avenue for forfeiture claimants to fight for the return of property seized by the government. Several tips should aid the defense practitioner in an attempt to successfully seek the return for forfeitable property.
Whether the government proceeds in a forfeiture matter under the guise of in rern or in personam, it is critical to characterize the forfeiture as punishment. In past cases, the Supreme Court ruled that the excessive fines clause applied to forfeitures, whether characterized as civil iin rern or criminal in personam. Alexander v. United States, 609 U.S. 544 (1993); Austin v. United States, 509 U.S. 602 (1993). Bajakajian appears to retreat from this view, addressing the excessive fines clause only as it relates to criminal in personam forfeitures. A forfeiture must be punitive, at least in part. The underlying purpose of the forfeiture must still be examined in every instance.
If there is no legitimate source or use for the forfeitable property, it wiUbe difficult to make an excessiveness argument. Keep in mind that the source and intended use of the property sought to be forfeited weighs heavily in the gravity of the offense analysis. Obtain as much documentation as possible.
Examine the full range of sentence opt ions for the criminal conduct in question. Even if the statutory scheme provides for a harsh maximum penalty, the exposure for specific criminal conduct may be small in light of the full range of options. As always, it is important to stress that the criminal conduct is minimally culpable.
Although the Court did not address the issue, a claimant seeking to invoke the Eighth Amendment to prevent an unjust forfeiture will typically bear the burden of proving excessiveness, once a forfeiture proceeding has legitimately begun. Be prepared to plead and prove excessiveness from the outset of litigation.
At long last, defense practitioners have within their arsenals a weapon to challenge the government’s ability to forfeit its citizens’ lawfully earned and possessed property.