United States v. Dean

United States Court of Appeals,

Eleventh Circuit.

No. 95-4181.

UNITED STATES of America, Plaintiff-Appellant,

v.

James W. DEAN, Defendant-Appellee.

April 24, 1996.

Appeal from the United States District Court for the Southern

District of Florida. (No. 93-81606-CR-NCR), Norman C. Roettger,

Jr., Chief Judge.

Before KRAVITCH, ANDERSON and BARKETT, Circuit Judges.

KRAVITCH, Circuit Judge:

This appeal raises the question of whether a district court

has the authority to modify a portion of a plea agreement relating

to the civil forfeiture of property. In this case, after accepting

the defendant's plea of guilty, the district court modified the

plea agreement. The modification released the defendant from his

promise to withdraw his claim to seized funds. The court based its

decision to alter the terms of the agreement on the ground that the

forfeiture would violate the Eighth Amendment's Excessive Fines

Clause. The government argues that the district court lacked the

authority to modify the plea agreement. We hold that a district

court may modify a plea agreement where a defendant has promised to

forfeit property.

I.

On September 18, 1993, James W. Dean, a citizen of the

Bahamas, was arrested at West Palm Beach International Airport by

United States Customs Service agents for failing to file Customs

Form 4790, Report of International Transportation of Currency or

Monetary Instruments. It is illegal to fail to file Form 4790 when

transporting currency in excess of $10,000 out of the United

States. 31 U.S.C. §§ 5316(a)(1)(A) and 5322(a) and 31 C.F.R. §

103.23. Dean was carrying approximately $140,000, which the agents

seized from him pursuant to 31 U.S.C. § 5317.

Dean was a fishing boat captain who exported seafood from the

Bahamas to the United States. In his interview with the probation

officer who prepared the presentence investigation report ("PSI"),

Dean explained that several days before the arrest he had delivered

a load of crawfish in West Palm Beach and had been paid by wire

transfer to his account at Barnett Bank in Riviera Beach, Florida.

He made a withdrawal of $140,000 so that he could pay approximately

100 of his fishermen in cash when he returned to the Bahamas. In

response to inquiries of the district court and at oral argument

before this court, the government stated that it had no evidence

that the funds Dean had failed to report were not legitimate

proceeds of the sale of fish or that Dean intended to use the money

for any illegal purpose.

On February 24, 1994, Dean was notified that Customs would

administratively forfeit the entire $140,000 unless Dean filed a

claim and cost bond to require Customs to initiate civil forfeiture

proceedings. Dean filed a claim and cost bond on or about March

20, 1994.

On June 13, 1994, in accordance with the plea agreement he

entered into with the government, Dean pleaded guilty to attempting

to transport currency in excess of $10,000 out of the United

States, in violation of 31 U.S.C. §§ 5316(a)(1)(A) and 5322(a) and

31 C.F.R. § 103.23. As part of the plea bargain, the government

assured Dean that it would not apply to the Immigration and

Naturalization Service to exclude Dean from the United States, that

it would recommend a sentence at the lower end of the Sentencing

Guidelines, and that it would recommend that Dean remain on bond

pending sentencing, in exchange for Dean's promise to withdraw his

claim for the $140,000 seized by Customs pursuant to 31 U.S.C. §

5317(c). The effect of this withdrawal would be that the money

would go to the government without a forfeiture hearing; the funds

would be administratively forfeited pursuant to 19 U.S.C. § 1607.

The district court accepted the plea and ordered a PSI prepared.

During preparation of the PSI, Dean sent a letter to the

district court which was transmitted to the probation officer.

This letter asked that the court permit the confiscated funds "to

be turned over to King & Prince Seafood Co. to partially fulfill my

financial obligation to them."

The probation officer calculated a base offense level of six,

pursuant to U.S.S.G. § 2S1.3, which was increased by seven levels

because of the amount of currency involved. U.S.S.G. § 2S1.3(a).

Because the unreported funds derived from a legal source, Dean's

offense level was decreased to six, pursuant to § 2S1.3(b)(2).

Dean received a two-level reduction for acceptance of

responsibility, for a total offense level of four. Because Dean had

no prior convictions, he was assigned a criminal history category

of one, entailing a guideline sentencing range from 0-6 months,

which made him eligible for a sentence of probation. Under the

applicable guideline, the fine range for the charged offense was

from $250 to $5000. U.S.S.G. § 5E1.2(c)(1)(3).

At the sentencing hearing, Dean requested the court not to

impose a fine because he already had suffered by agreeing to

forfeit his claim to the money. The court then asked the

government whether there was any evidence that the proceeds were

not from the sale of fish or that Dean intended to use the money

for illegal purposes. When the government stated that it had no

evidence that Dean was involved in any illegal activity, the judge

expressed concern that the fine was excessive and, as such,

unconstitutional. The judge then instructed the parties to submit

briefs addressing whether the Eighth Amendment would prohibit

forfeiture in this case.

At a subsequent hearing, the court heard arguments concerning

the applicability of the Eighth Amendment to the forfeiture of the

currency. Dean's counsel challenged the government's authority to

forfeit the seized funds. The government argued that although the

court could strike the entire plea agreement, the court lacked

jurisdiction over the money because there was no forfeiture count

in the indictment. The court replied, "It's all part of the court

proceedings now. You brought it into court this way in the

criminal case." Calling the fine "excessive," the judge mitigated

the forfeiture to $5,000 and ordered the government to return the

remainder of the funds. The judge also sentenced Dean to two

years' probation.

II.

The government argues on appeal that the district court lacked

the authority to modify the recommended sentence to provide that,

in addition to serving two years' probation, Dean would forfeit

only $5,000 and that the remainder of the seized funds would be

returned to Dean.

A.

The government's first claim is that the district court's

modification of the plea agreement violated Rule 11 of the Federal

Rules of Criminal Procedure because the plea was made pursuant to

Rule 11(e)(1)(C), which permits a judge only to accept or reject an

agreement. Dean maintains that the agreement was made under Rule

11(e)(1)(B), and, therefore, was only a recommendation that the

judge could modify. Federal Rule of Criminal Procedure 11(e)(1)

provides:

In General. The attorney for the government and the attorney

for the defendant or the defendant when acting pro se may

engage in discussions with a view toward reaching an agreement

that, upon the entering of a plea of guilty or nolo contendere

to a charged offense or to a lesser or related offense, the

attorney for the government will do any of the following:

(A) move for dismissal of other charges; or

(B) make a recommendation, or agree not to oppose the

defendant's request, for a particular sentence, with the

understanding that such recommendation or request shall

not be binding upon the court;

(C) agree that a specific sentence is the appropriate

disposition of the case.

The court shall not participate in any such discussions.

We conclude that the plea in this case falls within Rule

11(e)(1)(B). The agreement was not that a specific sentence was

the appropriate disposition of the case—an agreement the district

court could only accept or reject—but an agreement that the

government would recommend to the court that Dean be sentenced at

the lower end of the guideline.

One important distinction between "B" pleas and "A" or "C"

pleas is that only "B" pleas may be modified: "such a

recommendation or request shall not be binding upon the court."

This is made clear in Rule 11(e)(2), which states, in pertinent

part:

If the agreement is of the type specified in subdivision

(e)(1)(A) or (C), the court may accept or reject the

agreement, or may defer its decision as to the acceptance or

rejection until there has been an opportunity to consider the

presentence report. If the agreement is of the type specified

in subdivision (e)(1)(B), the court shall advise the defendant

that if the court does not accept the recommendation or

request the defendant nevertheless has no right to withdraw

the plea.

Thus, the recommended sentence was not binding on the court.

B.

Although the court was free to modify the sentence, there

remains the question of whether the court was free to reject the

part of the agreement that required Dean to withdraw his claim to

the seized funds. Rule 11(e)(1)(B) states that the prosecutor's

recommendation or request is not binding on the court; it does not

give the court general authority to alter the terms of the

agreement leading up to the recommendation.

Dean's "agreement," however, sought to do more than provide

the basis for a recommendation to the judge as to what the

appropriate criminal punishment should be; it also determined the

outcome of the government's attempt to forfeit the seized funds.

Generally, this is permissible. The government is entitled to

"seek[ ] and obtain[ ] both the full civil penalty and the full

range of statutorily authorized criminal penalties in the same

proceeding." United States v. Halper, 490 U.S. 435, 450, 104

L.Ed.2d 487, 109 S.Ct. 1892, 1903 (1989). The problem with the

arrangement in this case is that the prosecutor attempted to impose

a punishment1 in a manner that precluded judicial review. As a

1

The forfeiture provision in this case constituted

punishment. The Supreme Court has held that "a civil sanction

that cannot fairly be said solely to serve a remedial purpose,

but rather can only be explained as also serving either

retributive or deterrent purposes, is punishment, as we have come

to understand the term." United States v. Halper, 490 U.S. at

448, 109 S.Ct. at 1902.

In determining whether a civil penalty under the False

Claims Act constituted punishment, the Court in Halper

considered whether "the sanction as applied in the

individual case serves the goal of punishment." Id., Were

Halper the last word, we would look at the effect of the

forfeiture in this particular case to determine whether it

would constitute punishment. In Austin v. United States,

509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993),

however, the Court had more to say. In that case, the Court

did not employ a case-by-case approach in determining

whether a forfeiture statute was punishment; rather, it

looked at the statute as a whole to determine whether the

forfeiture provision under which the government sought to

forfeit the defendant's mobile home and auto body shop out

of which he sold drugs constituted punishment. The Austin

Court described the sanction in Halper as "involv[ing] a

small, fixed-penalty provision, which "in the ordinary case

... can be said to do no more than make the Government

whole.' " Id. at ---- n. 14, 113 S.Ct. at 2812 n. 14

(quoting Halper, 490 U.S. at 449, 109 S.Ct. at 1902)

(ellipsis in original). This was contrasted with the

forfeitures pursuant to §§ 881(a)(4) and (a)(7), which could

"vary so dramatically that any relationship between the

Government's actual costs and the amount of the sanction is

merely coincidental." Id. In our view, the best reading of

Halper and Austin is that in the forfeiture setting—where

any relation between the property seized and the remedial

goal of civil forfeiture is purely coincidental—the

case-by-case approach of Halper is inapplicable; rather, a

court should look to the underlying purpose of the statute.

See, e.g., United States v. Perez, 70 F.3d 345, 348 (5th

Cir.1995) (applying a per se rule where real property and

conveyances are seized because there is no likely

relationship between the value of the forfeited goods and

the remedial nature of the forfeiture); United States v.

Ursery, 59 F.3d 568, 573 (6th Cir.1995) (adopting a per se

rule for forfeiture of property used to facilitate the drug

trade), cert. granted, --- U.S. ----, 116 S.Ct. 762, 133

L.Ed.2d 707 (1996); United States v. $405,089.23, 33 F.3d

1210 (9th Cir.1994) (court must look to the entire scope of

statute, not the specific characteristics of property to be

forfeited, to determine whether forfeiture constitutes

punishment), amended after denial of reh'g, 56 F.3d 41, and

cert. granted, --- U.S. ----, 116 S.Ct. 762, 133 L.Ed.2d 707

(1996).

The distinguishing feature of Halper and Austin is the

extent to which the fine is limited. Where the fine is of a

discrete amount, whether that fine is purely remedial

depends on whether that fine is rationally related to the

damages caused by the claimant. Where the value of

forfeited property is completely random, an inquiry into

whether the forfeiture is remedial is not necessary; it is

almost certain that a portion of the forfeited property will

constitute punishment. For this reason, the Austin Court

saw no need to look at the particular forfeiture involved to

determine whether it was remedial. Austin, 509 U.S. at ----

n. 14, 113 S.Ct. at 2812 n. 14. Similarly, in Montana

Department of Revenue v. Kurth Ranch, --- U.S. ----, 114

S.Ct. 1937, 128 L.Ed.2d 767 (1994), decided after Austin,

the Court declined to use the test developed in Halper to

determine whether a tax on dangerous drugs was punishment.

Rather, the Court looked at the underlying purpose of the

tax to conclude that its imposition constituted punishment.

Kurth Ranch, --- U.S. at ----, 114 S.Ct. at 1948; see

$405,089.23, 33 F.3d 1210 (9th Cir.1994), on amend. denial

of reh'g, 56 F.3d 41, 42 (holding that a categorical

approach is compelled by Kurth Ranch ). Thus, in

determining whether a forfeiture constitutes punishment, we

look to the statute as a whole.

In construing 31 U.S.C. § 5317, we assume that

"forfeiture generally and statutory in rem forfeiture in

particular historically have been understood, at least in

part, as punishment." Austin, 509 U.S. at ----, 113 S.Ct.

at 2810. Therefore, we consider if there is anything in the

"[statutory] provisions or their legislative history to

contradict the historical understanding of forfeiture as

punishment." Id. Under § 5317, the amount forfeitable is

determined by the amount of money a person attempts to take

from the country. 31 U.S.C. § 5317(c), in relevant part,

provides:

If a report under section 5316 with respect to any

monetary instrument is not filed (or if filed, contains

a material omission or misstatement of fact), the

instrument and any interest in property, including a

deposit in a financial institution, traceable to such

instrument may be seized and forfeited to the United

States government.

Because the value of the funds forfeited under the

statute is completely unrelated to remedial goals, except by

mere coincidence, there is a strong presumption that the

forfeiture is, in part, punitive. See United States v.

$69,292.00, 62 F.3d 1161 (9th Cir.1995). This presumption

is overcome only where there is a direct correlation between

the value of the items seized and the damages caused by the

defendant, for instance, where the items seized are

contraband. See Austin, 509 U.S. at ----, 113 S.Ct. at

2811; United States v. One Assortment of 89 Firearms, 465

U.S. 354, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984). The harm

addressed by § 5317, however, is depriving the government of

the information it seeks, and the amount of the forfeiture

in any particular case is only incidentally related to this

harm. See $69,292.00, 62 F.3d 1161. The money Dean was

transporting belonged to him, and it is not a crime to

transport one's own money out of the United States.

Although § 5317 in part may serve the remedial goal of

defraying some of the costs the government has spent in

investigation, this is not sufficient to make it purely

remedial. Forfeiture under § 5317 is not calculated to

reimburse the government for the costs of investigating and

prosecuting Dean. Again, this is because the amount

forfeited is independent of any costs to the government and

is based only on the contingent fact of how much currency is

being transported. Austin, 509 U.S. at ---- n. 14, 113

S.Ct. at 2812 n. 14; United States v. Baird, 63 F.3d 1213,

1223 (3d Cir.1995) (Sarokin, dissenting), cert. denied, ---

U.S. ----, 116 S.Ct. 909, --- L.Ed.2d ---- (1996).

Congress's intent to punish through § 5317 is further

manifested by the fact that forfeiture occurs only as the

result of failing to report the funds. 31 U.S.C. §§ 5316,

5317; see $69,292.00, 62 F.3d at 1164 (9th Cir.1995); U.S.

v. U.S Currency in the Amount of $145,139.00, 18 F.3d 73,

78-80 (2d Cir.) (Kearse, J., dissenting), cert. denied, ---

U.S. ----, 115 S.Ct. 72, 130 L.Ed.2d 27 (1994). "[A]

forfeiture under § 5317 primarily visits retribution on the

transporter of the funds for not having supplied the desired

information, and acts as a potential deterrent."

145,139.00, 18 F.3d at 80 (Kearse, J., dissenting)

(discussing the most common forms of civil remedies and

explaining why § 5317 is not a remedial provision).

Finally, we reject the government's argument that this

case is controlled by One Lot Emerald Cut Stones v. United

States, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972),

where the Supreme Court upheld the forfeiture of goods

involved in customs violations as a "reasonable form of

liquidated damages." Id. at 237, 93 S.Ct. at 493. We agree

general rule, acceptance of a defendant's plea agreement prohibits

a district court from modifying that agreement. United States v.

Yesil, 991 F.2d 1527, 1531 (11th Cir.1992) ("[A] district court's

discretion is "severely' curtailed once that court accepts a plea

bargain.").2 However, because the result of an agreement to

forfeit property is itself punishment, forfeiture agreements in the

context of a "B" plea present an unusual situation. With a "C"

plea, acceptance of the agreement is identical to imposition of

punishment; if the court does not consider the agreement fair, it

simply rejects the entire plea agreement. In a "B" plea, however,

punishment may be imposed after acceptance of the agreement. Were

district courts required to accept all forfeiture agreements made

with the Ninth Circuit, United States v. $69,292 in U.S.

Currency, 62 F.3d 1161, that there is a distinction to be

drawn after Austin between failure to report cases and

customs violations cases. The crime in this case did not

involve the smuggling of property out of the United States;

rather, the crime was the failure to inform the government

that currency in excess of $10,000 was being transported out

of the country. Where a person attempts to avoid paying a

duty, the crime committed does bear a correlation to the

harm to society: the greater the value of the property, the

greater the lost revenue. In contrast, because it is legal

to take currency out of the United States, the harm that

arises when a person deprives the government of information

about how much is being removed from the country bears no

relationship to the amount that person attempts to remove.

Because the statute does not solely serve a remedial

purpose, the forfeiture constitutes punishment. See Austin,

509 U.S. at ----, 113 S.Ct. at 2812; Halper, 490 U.S. at

448-50, 109 S.Ct. at 1902.

2

We note that the Sixth Circuit has held, in the context of

an "A" plea, that a district court may not accept a plea while

excising the forfeiture provision that was a condition of that

plea. United States v. Skidmore, 998 F.2d 372 (6th Cir.1993).

Because an "A" plea permits no modification of the sentence, it

is distinguishable from the "B" plea at issue in the present

case.

pursuant to a "B" plea once that court accepted the defendant's

plea of guilty, those courts would be compelled to ratify

agreements which they consider unjust.3 Accordingly, we hold that

a district judge is permitted to modify forfeiture provisions of a

"B" plea agreement when the court determines that the agreed upon

forfeiture is unfair to the defendant. To hold otherwise would

permit an end-run around judicial review of B-pleas and would deny

the district court its proper role of imposing punishment.4

C.

The government's next argument is that the district court

lacked jurisdiction over the funds and was therefore without

authority to return the money to Dean. The district court would

have jurisdiction over the funds, the government contends, only if

3

The Supreme Court has expressed concern with the potential

for abuse of forfeiture provisions. Libretti v. United States, -

-- U.S. ----, ----, 116 S.Ct. 356, 365, 133 L.Ed.2d 271 (1995)

("[B]road forfeiture provisions carry the potential for

government abuse and "can be devastating when used unjustly.' ")

(quoting Caplin & Drysdale, Chartered v. United States, 491 U.S.

617, 634, 109 S.Ct. 2646, 2657, 105 L.Ed.2d 528 (1989)). In

fact, the Court has stated that "[c]ases involving particular

abuses can be dealt with individually by the lower courts when

(and if) any such cases arise." Id. (quoting Caplin & Drysdale,

491 U.S. at 635, 109 S.Ct. at 2657). It is clear that the

sentencing judge believed this case—in which the government used

the threat of applying to Immigration and Naturalization Service

to exclude Dean from the United States for the sole reason that

he failed to fill out a form—to be an abuse of the forfeiture

provision.

4

Because we hold that the district court had the authority

to modify the amount of the forfeiture, we reject the

government's argument that Dean violated the terms of the plea

agreement by filing a memorandum of law addressing the

constitutionality of the forfeiture. Nor do we construe Dean's

letter to the court to be a violation of the agreement. Dean was

prepared to waive his claim to the administrative forfeiture of

his money had the court so ordered. He should not be penalized

for assisting the court in its ruling.

a criminal forfeiture were a part of the indictment. In such a

case, the court would have in personam jurisdiction. See United

States v. Garrett, 727 F.2d 1003 (11th Cir.1984) (criminal

forfeiture is an in personam action), aff'd, 471 U.S. 773, 105

S.Ct. 2407, 85 L.Ed.2d 764 (1985). Because the forfeiture was not

part of the indictment, the government argues that jurisdiction

could exist only with the civil forfeiture court. A civil

forfeiture action is an in rem proceeding, and generally

jurisdiction would exist only in the court where the action was

filed. The government claims that because no such action had been

brought, no court had jurisdiction over the funds at the time of

Dean's sentencing.5

Federal courts have developed the doctrine of "equitable" or

"anomalous" jurisdiction to enable them to take jurisdiction over

property in order to adjudicate "actions for the return of

unlawfully seized property even though no indictment has been

returned and no criminal prosecution is yet in existence." United

States v. Chapman, 559 F.2d 402, 406 (5th Cir.1977); see In re

$67,470 in United States Currency, 901 F.2d 1540, 1545 (11th

Cir.1990). In such circumstances, the only remedy is in equity.

Nevertheless, "[t]he decision to invoke equitable jurisdiction is

highly discretionary and must be exercised with caution and

restraint. Such jurisdiction, therefore, is only appropriate in

5

When Customs begins an administrative forfeiture proceeding

against seized property it has initiated an in rem action. Once

a person files a claim and cost bond, the administrative

forfeiture ceases and the matter is transferred to the

appropriate United States Attorney, who institutes civil

forfeiture proceedings. 19 U.S.C. § 1608.

exceptional cases where equity demands intervention." Id. at 1544.

In Robinson v. United States, 734 F.2d 735 (11th Cir.1984), we

upheld a district court's order to return property seized during a

subsequently dismissed criminal proceeding. Although the

government brought a civil forfeiture action prior to entry of a

default judgment in favor of Robinson, thus vesting in rem

jurisdiction in the forfeiture court, the trial court ordered the

seized property returned. This court agreed with the district

court that "equitable considerations compel the relief here

granted." Id. at 739.6

The principle behind the doctrine of equitable jurisdiction is

that the state should not be permitted to deny individuals their

property without recourse simply because there is no jurisdiction

at law and thus no opportunity for review of government action.

This principle applies even where the seizure was lawful.

By entering into a plea agreement that would determine the

outcome of the forfeiture action, the government brought the issue

of forfeiture before the district court. Were the district judge

6

In United States v. Castro, 883 F.2d 1018 (11th Cir.1989),

this court refused to allow the use of Fed.R.Crim.P. 41(e) to

order the return of property subject to a civil forfeiture

action. In the process of holding that Rule 41(e) is applicable

only in criminal proceedings, we reaffirmed the power of the

court "to fashion a remedy under its inherent equitable

authority." Id. at 1020 ("Although granting Defendant's Rule

41(e) Motion may be inappropriate here, this Court is not without

the power to fashion a remedy under its inherent equitable

authority."). In distinguishing Robinson, this court noted that

in that case the court relied on its "inherent equitable

authority" and that the Robinson case involved a denial of due

process rights. Additionally, in Castro the defendant had a

remedy at law; the court denied relief because the "[d]efendant

ha[d] simply chosen the wrong remedy in the wrong court." Id. at

1020.

without power to consider plea agreements to forfeit funds, the

Government would be able to enter into agreements that had the

effect of imposing unjust and illegal punishments.7

The fact that Dean agreed to the punishment does not change

our analysis. A defendant's consent to an unjust or illegal

punishment should not be ratified by the court. In fact, in the

context of sentencing under criminal statutes, the Sentencing

Guidelines instruct judges not to accept agreed upon sentences that

violate the provisions of the Guidelines. U.S.S.G. § 6B1.2(b)-(c),

p.s.; see Libretti v. United States, --- U.S. ----, ----, 116

S.Ct. 356, 365, 133 L.Ed.2d 271 (1995) (noting that in the context

of a criminal forfeiture the Court has not yet "determine[d] the

precise scope of a district court's independent obligation, if any,

to inquire into the propriety of a stipulated asset forfeiture

embodied in a plea agreement"). In a case such as this one, for

the court to exercise its power to prevent the imposition of an

unjust or unconstitutional punishment, even one agreed to by the

defendant, it is necessary that it be able to take equitable

jurisdiction over the seized property.8

III.

To summarize, we hold that the district court had jurisdiction

7

In fact, it was out of concern that the forfeiture would

violate Dean's rights under the Eighth Amendment that the

district court refused to permit the forfeiture.

8

If the forfeiture were to violate the Eighth Amendment,

then a district court may not permit it. A constitutional

violation, however, is not a precondition for the court's

exercise of its authority to modify the forfeiture provision. To

the extent that the judge has discretion in punishing a

defendant, justice and proportionality are relevant

considerations.

over the funds and the power to modify the plea agreement. Because

the district judge did not abuse his discretion in modifying the

plea agreement, we AFFIRM.

ANDERSON, Circuit Judge, concurring specially:

I concur in all of Judge Kravitch's opinion for the court

except footnote 1. Because the proposed forfeiture of $140,000 in

this case would clearly constitute punishment either under the

case-by-case approach utilized in United States v. Halper, 490 U.S.

435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), or under the

categorical approach utilized in Austin v. United States, 509 U.S.

602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), it is not necessary in

this case to decide which approach is correct. I think it is more

prudent not to do so. I do not believe thatAustin mandates use of

the categorical approach. Rather, the Court said: "[I]t appears

to make little practical difference whether the Excessive Fines

Clause applies to all forfeitures under §§ 881(a)(4) and (a)(7) or

only to those that cannot be characterized as purely remedial."

Id., 509 U.S. at ---- n. 14, at 2812 n. 14. Therefore, although I

agree that the proposed forfeiture constitutes punishment, I

decline to join footnote 1.