November 04, 2004
Driving while committing a crime
United States v. Dodge Caravan,
No. 03-1925 (8th Cir., Oct. 27, 2004) (Melloy, for Smith, J.J., Collotan, J. dissenting).
[Ed's note: This case has been reported as a constitutional law case. It's not that sexy, though it's very informative.]
Facts: [Citizen] was addicted to prescription pain killers. She forged prescriptions and used used her minivan and went to drive-thru pharmacies for the pain killers. She was the sole owner of the van, but she used it to drive her 3 children. After she was convicted of various offenses that carried a maximum fine of $10,000, the government brought a forfeiture action to take away her van that was valued at $12,000 to $14,000. The district court agreed and gave the van to the government. Obviously we would all be better off if the citizen was unable to drive her children to school. After all, citizen lived in Nebraska, famous for its public transportation. I'm sure the kids will be okay.
Issue: Before a district court orders property forfeited to the government, he must weigh and balance several factors. Here, a judge only looked to one factor before he ordered the citizen to forfeit personal property to the government. Is the forfeiture proper?
Holding: No. The case is remanded to the trial court to properly analyze the case.
Reasoning: The Excessive Fines Clause has a proportionality requirement. A fine violates the Excessive Fines Clause if its "grossly disproportionate." Id. at *7. Citing Bajakajian, 524 U.S. 321, 334 (1998). The burden of making a prima face showing of gross disproportionality is on the plaintiff. If she shows it, the court conducts an ad hoc analysis, looking at several factors, including:
* "the extent and duration of the criminal conduct"
* "the gravity of the offense weighed against the severity of the criminal sanction"
* "and the value of the property forfeited"
* "an assessment of the personal benefit reaped by the defendant"
* "the defendant’s motive and culpability"
* "the extent that the defendant’s interest and the enterprise itself are tainted by criminal conduct"
* "the monetary value of the property"
* "the extent of the criminal activity associated with the property"
* "the fact that the property was a residence"
* "the effect of the forfeiture on innocent occupants of the residence including children,
* "any other factors that an excessive fine analysis might require.”
Id. at *8.
Generally, if the forfeiture does not exceed the maximum fine allowed under the law, there is no excessive fine issue. Here, the judge did not look to all the factors. He also analyzed the citizen's sentence under the wrong sentencing guideline. Thus, the case is remanded for him to weigh and balance the factors, though the panel expressed no opinion on the constitutionality of the forfeiture.
Judge Colloton, a President George W. Bush appointee, dissented. For him, it was enough that the citizen used the van to illegally obtain the prescription pain killers. That's troubling to me, since it's the children who would ultimately be punished by the forfeiture. Let's use a little common sense, judge. A woman who drives her van to pick up prescription medication is not the same as a person who flies his jet to traffic kilos of cocaine. Have you no decency? Have you no sense of proportion?
October 01, 2004
Standing in civil forfeiture cases
In a civil forfeiture action, the government presented substantial evidence that the property fraduently conveyed. The property owner did not present any evidence to counter this assertion. Does the property owner have Article III standing to challenge a civil forfeiture?
No - A property owner does not have Article III standing to challenge a civil forfeiture unless he can raise a trial issue of material fact that he rightfully has a possessory interest. United States v. Markarian, No. 03-15396, (9th Cir., Oct. 1, 2004).
For Judges Noonon Clifton, Judge Fogel wrote:
Article III standing must be determined as a threshold matter in every federal case. In a forfeiture action, this determination turns upon whether the claimant has a sufficient interest in the property to create a case or controversy. The claimant’s burden under Article III is not a heavy one; the claimant need demonstrate only a colorable interest in the property, for example, by showing actual possession, control, title, or financial stake. Id. Ownership interest is determined under the law of the state in which the interest arose — here, California.Slip opinion at 6.
The government presented significant evidence that the property was fraudulently conveyed to the Markarians. The Markarians did not present any evidence to rebut the government's arguments: This was a fatal mistake.
Because the government met its initial burden of presenting evidence from which a trier of fact could conclude that the transfer to the Markarians was fraudulent, the burden shifted to the Markarians to demonstrate a triable issue of material fact as to the fraudulent nature of the transfer. The Markarians, however, failed to oppose the government’s motion. Accordingly, the district court properly concluded as a matter of law that the transfer of the defendant property was fraudulent,5 and that as a result the Markarians lacked Article III standing to contest the forfeiture action. [A] claimant need demonstrate only a colorable interest in the defendant property in order to establish Article III standing. Had the Markarians mounted any opposition to the government’s motion for summary judgment, it is entirely possible that they could have met their threshold burden under Article III. However, because the government presented evidence that the transfer of the property was fraudulent under state law, and the Markarians failed to present any evidence whatsoever to the contrary, the district court properly concluded that there were no triable issues of material fact with respect to that issue.Id. at 8-9.