U.S. v. Bajakajian, 95-50094

Citation84 F.3d 334
Decision Date20 May 1996
Docket NumberNo. 95-50094,95-50094
Parties, 96 Cal. Daily Op. Serv. 3520, 96 Daily Journal D.A.R. 5743 UNITED STATES of America, Plaintiff-Appellant, v. Hosep Krikor BAJAKAJIAN, aka: Joe Bajakajian, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Ronald L. Cheng, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellant.

James E. Blatt, Encino, California, for the defendant-appellee.

Ronald L. Cheng, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellant.

James E. Blatt, Encino, CA, for defendant-appellee.

Appeal from the United States District Court for the Central District of California; John G. Davies, District Judge, Presiding.

Before: WALLACE, FERGUSON, and T.G. NELSON, Circuit Judges.

FERGUSON, Circuit Judge:

The United States appeals the decision of the district court following the defendant's guilty plea to failure to report currency in violation of 31 U.S.C. § 5316(a)(1)(A). 1 Specifically, the United States appeals the district court's determination that the defendant was required to forfeit only $15,000 of the $357,144 at issue. 2 We affirm the decision of the district court.

I. Factual and Procedural Background

On June 9, 1994, Bajakajian was attempting to board an Alitalia Airways flight leaving Los Angeles, destined for Cyprus. While Bajakajian was waiting to board his flight, U.S. Customs discovered approximately $140,000 concealed in four pieces of Bajakajian's checked luggage and $90,000 concealed in a false bottom of one of his bags. After discovering the hidden currency, a Customs inspector stopped the defendant and his family at the airport and informed them that they were required to report all money in both their personal possession and baggage which exceeded $10,000, irrespective of whether the money belonged to them. Bajakajian told the Customs inspector that he had $8,000 with him and that his wife had an additional $7,000. Bajakajian informed the inspector that his family had no additional money to report.

Customs inspectors discovered a total of $357,144 in United States currency in the carry-on baggage, checked-in baggage, wallet, and purse of the defendant and his wife. After being advised of his rights, Bajakajian admitted to Customs agents that he knowingly and wilfully failed to report the currency which was discovered.

On July 8, 1994, a grand jury returned a three count indictment against the defendant. Count One charged the defendant with violation of 31 U.S.C. §§ 5316(a)(1)(A) and 5322(a) for transporting currency of more than $10,000 outside of the United States without filing a report with the United States Customs Service. Count Two charged the defendant with making a false material statement to the United States Customs Service in violation of 18 U.S.C. § 1001. Count Three sought the forfeiture of the $357,144 discovered by Customs under 18 U.S.C. § 982(a)(1).

On October 27, 1994, pursuant to a plea agreement, the defendant entered a guilty plea as to Count One of the indictment and waived a jury trial as to Count Three. The government agreed to dismiss Count Two at the time of sentencing. On December 20, 1994, a bench trial was held for Count Three. The district court found that the entire $357,144 discovered by Customs agents was subject to criminal forfeiture pursuant to 18 U.S.C. § 982(a)(1). However, at sentencing, the district court ordered the defendant to forfeit only $15,000 of the $357,144. The district court concluded that forfeiture of more than $15,000 would be disproportionate to Bajakajian's culpability, and therefore unconstitutional under the Excessive Fines Clause of the Eighth Amendment. In calculating the amount of forfeiture, the district court recognized that all of the money at issue had come from a lawful source, and was to be used for a lawful purpose.

II. Discussion

A district court's interpretation of federal forfeiture law is reviewed de novo. United States v.1980 Lear Jet, 38 F.3d 398, 400 (9th Cir.1994).

The government alleges on appeal that the district court erred in requiring forfeiture of only $15,000 because the entire $357,144 at issue should have been forfeited. In the alternative, the government requests forfeiture of $170,000, the amount of currency which Bajakajian asked a friend to lie about to Customs agents.

The forfeiture statute relevant to this litigation, 18 U.S.C. § 982(a)(1), provides in pertinent part: "The court, in imposing sentence on a person convicted of an offense in violation of section 5313(a), 5316 or 5324 of title 31 ..., shall order that the person forfeit to the United States any property, real or personal, involved in such offense, or any property traceable to such property."

Therefore, pursuant to 18 U.S.C. § 982(a)(1), the entire $357,144 at issue in the present case is potentially forfeitable. However, a forfeiture is unconstitutional unless it survives scrutiny under the Excessive Fines Clause of the Eighth Amendment. "The Excessive Fines Clause limits the Government's power to extract payments, whether in cash or in kind, 'as punishment for some offense.' " Austin v. United States, 509 U.S. 602, 609-10, 113 S.Ct. 2801, 2805, 125 L.Ed.2d 488 (1993) (citation omitted). See also Alexander v. United States, 509 U.S. 544, 557-60, 113 S.Ct. 2766, 2775-76, 125 L.Ed.2d 441 (1993) (holding that criminal forfeiture is a form of monetary punishment subject to the Eight Amendment's Excessive Fines Clause); United States v. Sarbello, 985 F.2d 716, 717-18 (3d Cir.1993) (holding that a court may reduce an otherwise mandatory 100% statutory criminal forfeiture on the basis of the Excessive Fines Clause of the Eighth Amendment). Therefore, forfeiture in the present case must be subjected to analysis under the Excessive Fines Clause.

The Supreme Court, in Austin, declined to enumerate the factors to be considered in determining whether a forfeiture violates the Excessive Fines Clause. Austin, 509 U.S. at 621-23, 113 S.Ct. at 2812. We recently addressed this issue and established a two-pronged test for determining whether a forfeiture is unconstitutionally excessive under the Eighth Amendment. United States v. Real Property Located in El Dorado County, 59 F.3d 974, 982 (9th Cir.1995).

Pursuant to this court's Excessive Fines Clause test, a forfeiture is constitutional if: (1) the property forfeited is an "instrumentality" of the crime committed; and (2) the value of the property is proportional to the culpability of the owner. 3 Id. at 982. Therefore, Bajakajian cannot be ordered to forfeit any currency unless forfeiture in the present case would satisfy both the instrumentality and proportionality prongs of our recently established Excessive Fines Clause test.

Application of the instrumentality prong of the Excessive Fines test to a 31 U.S.C. § 5316 violation was recently discussed by this court in United States v. $69,292 in United States Currency, 62 F.3d 1161 (9th Cir.1995). The court questioned whether the currency involved in a § 5316 violation could ever be considered the instrumentality of the crime of failure to report. The court explained that it was not persuaded "that currency lawfully acquired and possessed has that necessarily close relationship to the crime simply because it has not been reported. The crime is the withholding of information, 31 U.S.C. § 5316, not the possession or the transportation of the money." Id. at 1167. The court further explained that the money at issue in a § 5316 violation is not contraband, and the money is presumed under the statutory scheme to be lawfully acquired and possessed. The statute does not impose a limit on the amount of U.S. currency which may be exported to foreign jurisdictions. Persons leaving the United States are free, as they have always been, to take with them such amounts of cash as they so choose. Id.

This court, in $69,292, also rejected the argument that the currency in a § 5316 violation satisfies the instrumentality requirement based upon the notion that the currency's existence was a precondition to the reporting requirement of 31 U.S.C. § 5316.

Simply put the existence of the currency as a precondition does not make it an instrumentality. For example, we would not characterize lawfully earned income an instrumentality forfeitable as such simply because a taxpayer wilfully failed to report that income on his tax return in violation of the tax code. The government would have us stretch the fiction of an "instrumentality" to the breaking point.

Id. at 1167-68 (citation omitted). See also Austin v. United States, 509 U.S. 602, 619-21, 113 S.Ct. 2801, 2811, 125 L.Ed.2d 488 (1993) (rejecting expansive definitions as to what qualifies as the instrumentality of a particular crime).

The government argues that the majority opinion in $69,292 conflicts with the Supreme Court's decision in One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972). There, the Court upheld the forfeiture of imported goods pursuant to 19 U.S.C. § 1497, 4 where the defendant failed to declare one lot of emerald cut stones and a ring upon his entry into the United States. Id. at 233, 93 S.Ct. at 491.

However, $69,292 and One Lot Emerald Cut Stones are not in conflict. One Lot Emerald Cut Stones involved the smuggling of contraband. When a defendant is convicted for failure to report currency pursuant to 31 U.S.C. § 5316, the crime is not the illegal possession, transportation, or smuggling of dutiable items. Rather, the crime is merely the failure to provide information. Money in lawful possession, as it was here, is not contraband. Moreover, the currency at issue in a § 5316 violation is not contraband, is presumed to be lawfully possessed and is not subject to duty. It is not illegal to take currency out of the country. The key difference is that a violation of § 5316 merely deprives the government of...

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