23 Feb 2017
Stefan Cassella of Asset Forfeiture Law, LLC comments on US v Rains, which evaluated the definition of ‘excessive’ forfeiture of property in relation to smuggling individuals into the country.
[United States v. Rains, ___ Fed. Appx. ___, 2017 WL 24638 (9th Cir. Jan. 3, 2017)]
Defendant was convicted of bringing undocumented immigrants into the United States and of harboring and transporting them once they were in this country. She was also convicted of an overarching conspiracy to do all of the above. Her sentence included the forfeiture of her ranch.
Defendant appealed the “bringing” and conspiracy convictions and the forfeiture order but did not appeal the “harboring” or “transporting” convictions.
The panel agreed with Defendant that there was insufficient evidence that she committed the “bringing” offense; whatever involvement Defendant had in the offense, the court said, began after the aliens were in the United States. Accordingly, the court reversed the conviction on the “bringing” offense, and because the conspiracy instruction allowed the jury to convict if it found that Defendant conspired to commit any of the alternative objects of the conspiracy, it reversed the conspiracy conviction as well.
Finally, because the forfeiture order was predicated on the conspiracy conviction, the court vacated the forfeiture order and remanded the case for the district court to determine if forfeiture was appropriate based on the remaining convictions.
With respect to the forfeiture order, the panel held that if the Government continues to pursue forfeiture of the ranch, it should be guided by the Ninth Circuit’s holding in United States v. $100,348.00 in U.S. Currency, which says that in comparing the forfeiture to the gravity of the offense, the court should give greater weight to the maximum penalty under Sentencing Guidelines rather than to the maximum statutory penalty “because the Guidelines take into account the specific culpability of the offender.”
Comment: The courts are far from unanimous in determining whether, for purposes of assessing the “gravity of the offense” under the Excessive Fines Clause of the Eighth Amendment, the trial court should be guided by the maximum statutory penalty for the offense, the recommended sentence under the Sentencing Guidelines, or some combination of the two.
In this case, in accordance with Ninth Circuit precedent, the panel comes down squarely in favor of relying on the Sentencing Guidelines. See United States v. $100,348.00 in U.S. Currency, 354 F.3d 1110, 1122 (9th Cir. 2004) (“the maximum penalties under the Sentencing Guidelines should be given greater weight than the statutory maximum because the Guidelines take into account the specific culpability of the offender”). Other courts take a different view. See, e.g., United States v. George, 779 F.3d 113 (2nd Cir. 2015) (“While the guidelines helpfully inform an assessment of the gravity of a crime of conviction, they do not compel a conclusion that any forfeiture above the guidelines maximum is unconstitutionally excessive. That determination can be made only by reference to the totality of factors identified in Bajakajian . . . .”); United States v. Li, 615 F.3d 752, 757 (7th Cir. 2010) (the measure of the gravity of an offense is not the sentence actually imposed but the maximum sentence and fine the court could have imposed under the applicable statute; forfeiture of residence used to harbor illegal aliens was not excessive).
All of the cases on this point are collected in Section IX.A of the Eighth Amendment Case Outline and in Chapter 28 of Asset Forfeiture Law in the United States (2d ed. 2013) and 2016 Supplement.
Stefan Cassella, Asset Forfeiture Law, LLC
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