United States v. Maria Ferro

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

v.

MARIA FERRO,

Claimant-Appellee,

and No. 10-55734

ROBERT FERRO,  D.C. No.

Claimant, 2:06-cv-05014-PJW

and

1,679 FIREARMS; 87,983 ROUNDS OF

AMMUNITION; 3 AIRBURST

PROJECTILES; ASSORTED FUSES,

Defendants.



UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

MARIA FERRO,

Claimant-Appellant,

No. 10-56808

and

ROBERT FERRO,  D.C. No.

2:06-cv-05014-PJW

Claimant,

OPINION

and

1,679 FIREARMS; 87,983 ROUNDS OF

AMMUNITION; 3 AIRBURST

PROJECTILES; ASSORTED FUSES,

Defendants.



6593

6594 UNITED STATES v. FERRO

Appeal from the United States District Court

for the Central District of California

Patrick J. Walsh, Magistrate Judge, Presiding

Argued and Submitted

February 17, 2012—Pasadena, California

Filed June 11, 2012

Before: Harry Pregerson, Michael Daly Hawkins, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea

UNITED STATES v. FERRO 6597

COUNSEL

Steven R. Welk, United States Department of Justice, Office

of the United States Attorney, Los Angeles, California, for the

plaintiff-appellant/cross-appellee.

Lisa J. Jackson, Law Offices of Lisa J. Jackson, Pacific Pali-

sades, California; Roger S. Hanson, Law Office of Roger S.

Hanson, Santa Ana, California, for the claimant-

appellee/cross-appellant.

OPINION

BEA, Circuit Judge:

These cross-appeals arise from what we understand to be

the largest civil in rem forfeiture proceeding against firearms

unlawfully possessed by a convicted felon in American his-

tory. In dispute is a forfeiture order against hundreds of col-

lectable guns valued at $2.55 million. After a bench trial, the

district court ruled the entire collection forfeitable, but it later

ordered that the government return 10% of the value of the

collection, $255,000, to Claimant-Appellant Maria Ferro on

the ground that a forfeiture so large violated the Eighth

Amendment’s prohibition on the imposition of an excessive

fine. The government and the claimant both appealed. The

government wants to pay back nothing. Maria Ferro wants the

government to pay back much more.

This opinion addresses several issues. First, we hold that

Maria Ferro is not entitled to the protections of the so-called

“innocent owner” defense, and the district court was therefore

correct to hold that the entire collection was subject to forfei-

ture. Second, we hold that, following a comprehensive revi-

sion to the forfeiture statutes in 2000, forfeitures of

instrumentalities of crimes are subject to excessiveness analy-

6598 UNITED STATES v. FERRO

sis under the Eighth Amendment’s Excessive Fines Clause.

Third, we hold that excessiveness review must consider the

individualized culpability of the property’s owner and, when

analyzing the offending conduct, it must focus only on the

conduct that actually gave rise to the forfeiture of the property

at issue, not other criminal conduct by the same person.

Because the district court erred on this third point, we remand

for the district court to undertake once again the excessive-

ness inquiry.1

I.

The facts of this case are unusual.

A.

The sole valid claimant in this case, Maria Ferro, married

Robert Ferro in 1979. In 1983, the Ferros moved to their cur-

rent home at 2045 Tapia Way in Upland, California. After

their marriage, Robert began to collect firearms, and Robert

obtained federal firearms licenses to do so. All 1,679 firearms

eventually seized in 2006 were obtained by Robert between

1983 and May 1992, while he was married to Maria Ferro and

while the couple resided in California.2

In 1991, Robert was arrested by local police in California

for possessing explosives. He was charged on November 16,

1991 with California state crimes that prohibit the possession

of explosives and explosive ingredients. On May 1, 1992,

before his state court trial, Robert conveyed in writing “all of

1

In accompanying unpublished dispositions, we also address the consti-

tutionality of the search that revealed the firearms, as well as a related

appeal brought by Robert Ferro.

2

Of the 1,679 firearms seized, some are contraband firearms, such as

machine guns, hand grenades, and silencers, which are illegal for any pri-

vate citizen to possess. See infra p. 6600. Maria has conceded the forfeita-

bility of those contraband firearms, and they are not at issue on appeal. Id.

UNITED STATES v. FERRO 6599

his property and possessions” to his wife Maria. The district

court found this conveyance included the transfer of owner-

ship of all of his firearms, and, in a separate filing, Robert

himself expressly declared this to be true.

Robert was convicted of the crimes related to possession of

explosives in that state court action and sentenced to two

years in prison. Sometime in 1992, the Bureau of Alcohol,

Tobacco, and Firearms (ATF) denied an application for

renewal of Robert’s firearms license which he had filed

before his conviction. In a letter addressed to Robert, an ATF

official explained that Robert “could continue his licensed

operations under his now expired firearms licenses until 30

days after his conviction became final.” The official explained

in the letter that Robert’s “conviction would be ‘final’ under

the regulations when all appeals were exhausted.” However,

Robert Ferro lied to his wife by telling her that he legally

could still possess firearms even after his conviction became

final.

Robert’s conviction became final in 1994. Robert then went

to prison in June 1995 and was paroled in September 1996.

A decade later, in April, 2006, ATF agents searched the

Ferros’ home and initially seized over 700 firearms. ATF offi-

cials executed a second, more thorough search and found

additional firearms as well as “87,983 rounds of ammunition,

35 machineguns, 130 silencers, three short-barreled rifles,

three destructive devices, a live hand grenade, a military

rocket launcher tube, five bullet-proof vests, grenade fuses,

and grenade hulls.” These additional firearms were hidden in

the walls and floors of the Ferros’ home. The ATF agents also

discovered hidden rooms containing weapons, as well as an

underground bunker that housed a shooting range.3 Maria “did

3

According to news reports, Robert Ferro is a former Army Special

Forces Officer and Cuban exile who claims to be part of a “quasi-military

group bent on overthrowing President Fidel Castro.” http://

6600 UNITED STATES v. FERRO

not know about the vast majority of the firearms hidden in her

house; she did not know how many guns were in the house

nor did she know where they were located.” D. Ct. Findings

of Fact and Concl. of Law at 4.

B.

On August 10, 2006, the government, with all of the fire-

arms in its custody, filed the complaint that initiated this civil

in rem forfeiture action. The complaint was filed pursuant to

1) 18 U.S.C. § 924(d), which, as relevant here, subjects to for-

feiture “[a]ny firearm or ammunition involved in or used in

any knowing violation of,” 18 U.S.C. § 922(g), the felon-in-

possession statute; and 2) 26 U.S.C. § 5872, which subjects to

forfeiture contraband items such as silencers, machine guns,

and explosive materials. The first claim for relief in the

complaint—which is the only claim still at issue, since Maria

withdrew her claim on the property which consisted of “con-

traband firearms, ammunition, and various destructive

devices,” as opposed to the “collectable firearms”—alleged

that all of the defendant items were subject to forfeiture

because they were unlawfully possessed by a felon.

The firearms still in dispute make up a remarkable collec-

tion. At oral argument, the government said that when these

proceedings conclude and the government has ownership of

all the firearms, “a lot of these collectable firearms will be

placed at the ATF museum, and will not be destroyed—not

necessarily because of their value, but because of their rarity.”4

havanajournal.com/politics/entry/cuban-exile-robert-ferro-arrested-on-

weapons-possession-plot-to-kill-castro/. Robert contends that there were

two distinct collections of firearms: “war weapons and machineguns,” and

his “wife’s firearms collection.” Robert says he told ATF agents that the

weapons “were for a possible military operation [against Fidel Castro], but

I believed that the mission had been aborted.”

4

Even if the fine is held to be excessive, the typical practice is to return

the value of the fine in a monetary settlement. The guns themselves are

unlikely ever to be returned to the Ferros.

UNITED STATES v. FERRO 6601

Some of the firearms are gold-plated; others are early

twentieth-century rarities; several are valued at $10,000 or

more. Still, despite the fact that these weapons are a far cry

from the inexpensive handguns used in most crimes, it is

uncontested that all of the weapons meet the definition of

“firearm” under 18 U.S.C. § 921(a)(3), wherein a “firearm” is

defined as “(A) any weapon (including a starter gun) which

will or is designed to or may readily be converted to expel a

projectile by the action of an explosive; (B) the frame or

receiver of any such weapon; (C) any firearm muffler or fire-

arm silencer; or (D) any destructive device. Such term does

not include an antique firearm.”5

The forfeiture proceeding for the contested firearms is gov-

erned by 18 U.S.C. § 983, also known as the Civil Asset For-

feiture Reform Act, or CAFRA. Under CAFRA procedures,

the government has the burden to show, by a preponderance

of evidence, that the collectable firearms are subject to forfei-

ture. Id. at 983(c)(1). In district court, the government alleged

that all of the defendant firearms were “involved in or used

in any knowing violation of” 18 U.S.C. § 922(g), the felon-in-

possession ban. Specifically, the government alleged that the

firearms “were in the actual or constructive possession of a

person, [Robert Ferro], who had been convicted of a crime

punishable by imprisonment for a term exceeding one year in

violation of 18 U.S.C. § 922(g)(1).” In turn, 18 U.S.C.

§ 922(g)(1) makes it unlawful for anyone “who has been con-

victed in any court of a crime punishable by imprisonment for

a term exceeding one year” to “possess . . . any firearm or

ammunition.”

Maria Ferro raised the affirmative defense that the property

is not forfeitable because she was an “innocent owner” and

5

An “antique firearm” is defined as any firearm “manufactured in or

before 1898,” or a replica thereof. 18 U.S.C. § 921(a)(16). The oldest fire-

arms in this collection appear to have been manufactured just after that

cutoff.

6602 UNITED STATES v. FERRO

“[a]n innocent owner’s interest in property shall not be for-

feited under any civil forfeiture statute.” 18 U.S.C.

§ 983(d)(1). An innocent owner is an owner who “(i) did not

know of the conduct giving rise to forfeiture; or (ii) upon

learning of the conduct giving rise to the forfeiture, did all

that reasonably could be expected under the circumstances to

terminate such use of the property.” 18 U.S.C. § 983(2)(A).

To prevail on this defense, Maria had to prove by a prepon-

derance of evidence that she was an innocent owner. Id. at

§ 983(d)(1).

The case proceeded to a two-day bench trial, with Maria

Ferro as the sole claimant of the property. In a written order,

the district court found that the firearms were subject to for-

feiture because they had been in the possession of a convicted

felon. The district court then rejected Maria’s innocent owner

defense to forfeiture. While the parties disputed whether

Maria even qualified as an owner under the statute,6 the dis-

trict court assumed without deciding that Maria was an owner

of the property under the statute but that she nonetheless was

not “innocent.” The district court found that Maria “kn[e]w of

the conduct giving rise to the forfeiture” because she “knew

that her husband had been convicted of a felony and sen-

tenced to more than one year in jail and that he possessed

these firearms after his conviction.” D. Ct. Findings of Fact

and Concl. of Law 8. For the district court, it was irrelevant

whether Maria “underst[oo]d the significance of those facts

[i.e., that Robert Ferro had been convicted of a felony and that

he had possessed firearms] when applied to existing law.” Id.

6

For purposes of the innocent owner defense, the term “owner” is

defined as anyone with a property interest in the disputed property but

explicitly does not include “(i) a person with only a general unsecured

interest in, or claim against, the property or estate of another; (ii) a bailee

unless the bailor is identified and the bailee shows a colorable legitimate

interest in the property seized; or (iii) a nominee who exercises no domin-

ion or control over the property.” 18 U.S.C. § 983(d)(6)(B). The govern-

ment contended that Maria was a mere “nominee.”

UNITED STATES v. FERRO 6603

The court accordingly ordered the firearms in the Ferro Col-

lection forfeited.

Maria then moved to remit the forfeiture because it consti-

tuted an “excessive fine” under the Excessive Fines Clause of

the Eighth Amendment. The district court granted her motion

in part and, after finding that the forfeiture was “marginally

disproportionate to the crimes,” the court reduced the forfei-

ture by 10% of the $2.55 million value the court gave to the

firearms at issue. D. Ct. Excessiveness Order 2. It ordered the

government to “return to Claimant either $255,000 in firearms

or to pay Claimant that amount in cash.” Id. at 11.

As noted above, both sides appealed.

II.

The district court’s factual findings are reviewed for clear

error. United States v. Bajakajian, 524 U.S. 321, 336 n.10

(1998). Its legal conclusions, including the determination

whether a fine is unconstitutionally excessive, are reviewed

de novo. Id.

III.

This appeal presents three separate questions regarding the

forfeiture. First, is Maria Ferro entitled to the innocent owner

affirmative defense to forfeiture? Second, if she is not, is the

property susceptible to an excessiveness analysis under the

Eighth Amendment’s Excessive Fines Clause? Third, if it is

susceptible to excessiveness analysis, is the $2.55 million

“fine” excessive? We address each in turn.7 We begin with

necessary background on how courts must analyze forfeitures

7

It is uncontested in this appeal that Robert Ferro was in fact convicted

of a prior felony, that he was in possession of the firearms even though

Maria owned them, and that all of the guns still at issue count as “fire-

arms” under 18 U.S.C. § 921(a)(3).

6604 UNITED STATES v. FERRO

under the Eighth Amendment, and how the analysis changed

in 2000 with the passage of a major reform statute called the

Civil Asset Forfeiture Reform Act, or CAFRA. See Pub. L.

106-185, relevant part codified at 18 U.S.C. § 983.

A. Background

[1] The Eighth Amendment states that “[e]xcessive bail

shall not be required, nor excessive fines imposed, nor cruel

and unusual punishments inflicted.” U.S. Const. amd. VIII.

For many years, the contours of the Excessive Fines Clause

went unexplored by the Supreme Court. Until 1998, the Court

had never applied the Clause to hold that a particular fine was

excessive. Bajakajian, 524 U.S. at 327.

The Supreme Court’s first case dealing with the potential

application of the Excessive Fines Clause to civil in rem for-

feitures was Austin v. United States, 509 U.S. 602 (1993). In

Austin, the claimant was indicted in South Dakota for drug

distribution, and the government initiated a civil in rem forfei-

ture proceeding against his mobile home and an automobile

repair shop that he owned and that were allegedly connected

to his drug trafficking offenses. Id. After canvassing the early

history of both the Clause and of forfeiture proceedings, the

Supreme Court held that the proper question was not

“whether forfeiture under [the statute then at issue] is civil or

criminal, but rather whether it is punishment.” Id. at 610. The

Court stated that a forfeiture may count as a “fine”—that is,

a “payment to a sovereign as punishment for some offense,”

Browning-Ferris Indus. v. Kelco Disposal, 492 U.S. 257, 265

(1989)—even if the forfeiture was in part remedial. Austin,

509 U.S. at 621. Instead, if the forfeiture “cannot fairly be

said solely to serve a remedial purpose, but rather can only be

explained as also serving either retributive or deterrent pur-

poses, [it] is punishment.” Id. (quoting United States v. Hal-

per, 490 U.S. 435, 448 (1989)). The Court in Austin remanded

for consideration of the question whether the forfeiture there

was excessive and to let the lower courts consider in the first

UNITED STATES v. FERRO 6605

instance “what factors should inform such a decision. . . .” Id.

at 622-23.

Five years later, in United States v. Bajakajian, the Court

held for the first time that a particular fine was excessive. 524

U.S. 321 (1998). In Bajakajian, the defendant was charged

with failing to report that he was crossing the U.S. border

with more than $10,000 in currency—in fact, Bajakajian was

traveling to Cyprus with over $350,000 in currency. Id. at

324-25. Federal law provided that “any property . . . involved

in such offense” was forfeitable in an in personam criminal

proceeding. Id. The government attempted to confiscate all

$357,154 in currency, but the Court held that such a fine was

excessive under the Clause. Id. at 344.

The Court first looked to the history of forfeiture and noted

that “traditional civil in rem forfeitures . . . were historically

considered nonpunitive” and that such nonpunitive forfeitures

“were considered to occupy a place outside the domain of the

Excessive Fines Clause.”8 Id. at 330-31. But then, citing Aus-

tin, the Court noted that modern forfeiture laws were not gen-

erally aligned with this historical tradition, and could be

“fines” for Eighth Amendment purposes. Id. Indeed, the Court

cast substantial doubt on whether any strictly remedial forfei-

tures still existed, since “recent federal forfeiture laws have

blurred the traditional distinction between civil in rem and

criminal in personam forfeiture.” Id. at 331 n.6. Rather, the

Court stated, it does not follow from historical practice that

“all modern civil in rem forfeitures are nonpunitive and thus

beyond the coverage of the Excessive Fines Clause . . . . [A]

modern statutory forfeiture is a ‘fine’ for Eighth Amendment

purposes if it constitutes punishment even in part. . . .” Id.

8

We note that the Bajakajian Court’s statements on this point appear to

be in some conflict with the Court’s earlier statement in Austin that “for-

feiture generally and statutory in rem forfeiture in particular historically

have been understood, at least in part, as punishment.” Austin, 509 U.S.

at 618. But perhaps the Court was referring to different time periods in

each case.

6606 UNITED STATES v. FERRO

The Bajakajian Court then considered and rejected the gov-

ernment’s argument that the currency at issue was an “instru-

mentality” of the reporting offense and therefore could never

be considered excessive. Id. at 333. The Court defined an “in-

strumentality” forfeiture as one involving “property that his-

torically was subject to forfeiture because it was the actual

means by which an offense was committed.” Id. at 333 n.8.

The Court then stated that “a forfeiture that reaches beyond

this strict historical limitation [of forfeitability as an instru-

mentality] is ipso facto punitive and therefore subject to

review under the Excessive Fines Clause.” Id. Because the

currency in Bajakajian was not an instrumentality of the

offense—instead, the currency was “merely the subject of the

crime of failure to report”—the Court ended its analysis of

instrumentality forfeitures without stating explicitly whether

they must be reviewed for excessiveness under the Clause. Id.

at 334 n.9.

Soon after, the Ninth Circuit dealt with this possible “in-

strumentality exception” to Eighth Amendment analysis, in

passing. United States v. 3814 NW Thurman Street, 164 F.3d

1191 (9th Cir. 1999). In Thurman Street, this court considered

a civil in rem forfeiture of a $200,000 interest in the defendant

real property. Id. at 1194. The property there was forfeitable

because it constituted the “proceeds” of the claimant’s alleged

crime of lying on loan documents, which had provided the

money needed to buy the realty; the lying was the crime

which subjected the property to forfeiture. Id. at 1194-95. The

Thurman Street court undertook an excessiveness analysis. Id.

at 1197. Before doing so, it stated that “although this is an in

rem proceeding, the proceeds here do not meet the ‘instru-

mentality’ test, which requires that the proceeds be ‘the actual

means by which an offense was committed.’ ” Id. (quoting

Bajakajian, 524 U.S. at 334 n.8). The Thurman Street court

did not state what the proper analysis would be if the forfei-

ture had met the instrumentality test.

The forfeiture landscape changed substantially in 2000 with

the passage of CAFRA. See 18 U.S.C. § 983. Prior to 2000,

UNITED STATES v. FERRO 6607

there were “scores of federal forfeiture statutes,” which pro-

vided for the possible forfeiture, under disparate legal stan-

dards, of everything from “animals utilized in cock-fights and

similar enterprises, to cigarettes seized from smugglers[,] to

property obtained from violations of the Racketeer Influenced

and Corrupt Organizations Act.” H.R. Rep. 106-192 at 3

(internal citations omitted). Several other existing statutes

allowed the government to use forfeiture as another “weapon

in the war on drugs.” Id.

[2] In passing CAFRA, Congress noted that the use of for-

feiture by the federal government had skyrocketed in the

1980s and 1990s. The total value of forfeited assets was under

$30 million in 1985, and eight years later, it was over $550

million. Id. at 4. Some members of Congress grew concerned

about what the House Report on CAFRA called the “abuses”

of civil forfeiture. Id. at 6. Under then-existing forfeiture stat-

utes, the House Report stated categorically that “[c]ivil forfei-

ture is being used to punish a property owner for alleged

criminal activity.” Id. at 13.

As passed by the Congress and signed by the President in

2000, CAFRA worked a number of major changes to forfei-

ture law, two of which are particularly relevant here. First, it

created a uniform innocent owner defense that applies to vir-

tually all civil in rem forfeiture proceedings. See 18 U.S.C.

§ 983(d)(1). As previously explained, this provision renders

offending property not forfeitable if the owner “(i) did not

know of the conduct giving rise to forfeiture; or (ii) upon

learning of the conduct giving rise to the forfeiture, did all

that reasonably could be expected under the circumstances to

terminate such use of the property.” 18 U.S.C. § 983(d)(2)(A).

With this provision, Congress ensured that modern-day forfei-

ture differs from historical forfeiture, since the Supreme Court

had earlier noted a “long and unbroken line of cases” which

had previously held that, under certain historical forfeiture

provisions, “an owner’s interest in property may be forfeited

by reason of the use to which the property is put even though

6608 UNITED STATES v. FERRO

the owner did not know that it was to be put to such use.”

Bennis v. Michigan, 516 U.S. 442, 446 (1996). Under

CAFRA, this type of forfeiture is no longer permitted.9

[3] Second, CAFRA itself incorporates guidelines to

review a forfeiture for proportionality which largely track

those stated by the Supreme Court in Bajakajian. CAFRA

states that a claimant “may petition the court to determine

whether the forfeiture was constitutionally excessive.” 18

U.S.C. § 983(g)(1). When a claimant makes such a petition,

a court should compare the forfeiture to the “gravity of the

offense,” and the claimant then has the burden of establishing

the forfeiture is “grossly disproportional” to the offense. 18

U.S.C. § 983(g)(2)-(3). Then, if the court finds, by a prepon-

derance of the evidence, that the forfeiture is “grossly dispro-

portional to the offense,” it must “reduce or eliminate the

forfeiture as necessary to avoid a violation of the Excessive

Fines Clause of the Eighth Amendment of the Constitution.”

Id. at 983(g)(3)-(4).

The effect of CAFRA on the Excessive Fines Clause analy-

sis for a forfeiture of this type and magnitude is a novel ques-

tion in this circuit.

B. The “innocent owner” defense

18 U.S.C. § 983(d)(1) provides that “[a]n innocent owner’s

interest in property shall not be forfeited under any civil for-

feiture statute.” Maria contends that she is an innocent owner

and therefore that the property is entirely immune from civil

forfeiture. The district court properly rejected this argument.

9

The new, uniform innocent owner defense does have one important,

narrow limitation. 18 U.S.C. § 983(d)(4) provides that “[n]otwithstanding

any provision of this subsection, no person may assert an ownership inter-

est under this subsection in contraband or other property that it is illegal

to possess.”

UNITED STATES v. FERRO 6609

An innocent owner is an owner who “(i) did not know of

the conduct giving rise to forfeiture; or (ii) upon learning of

the conduct giving rise to the forfeiture, did all that reason-

ably could be expected under the circumstances to terminate

such use of the property.” 18 U.S.C. § 983(d)(2)(A). Maria

contends that she meets the requirements of the first prong,

because “she did not know of the conduct giving rise to the

forfeiture, that is—she did not know that her husband was

prohibited by law from possessing firearms.” Maria notes that

the district court credited as true Maria’s statement that she

did not know Robert was legally prohibited from possessing

any firearms following his California state conviction, and the

government does not challenge this factual finding. Maria

contends that since she did not know that her husband’s pos-

session of the firearms at issue was illegal, she is an innocent

owner.

[4] Maria’s argument elides the distinct concepts of knowl-

edge of facts and knowledge of law. The innocent owner

defense exempts from civil forfeiture any property owned by

anyone who did not know of the conduct giving rise to the

forfeiture. 18 U.S.C. § 983(2)(A). As the district court stated,

Maria “knew that her husband had been convicted of a felony

and sentenced to more than one year in jail and that he pos-

sessed these firearms after his conviction.” That is all the con-

duct necessary to subject the firearms to forfeiture. It is well-

established that “the felon in possession statute, § 922(g)(1),

has no specific criminal intent element”—that is,

“[c]ommission of the crime requires no ‘act’ other than know-

ing possession of a firearm by a convicted felon.” United

States v. Beasley, 346 F.3d 930, 934 (9th Cir. 2003).

[5] Further, while the legal significance of the district

court’s finding that Maria was ignorant of the applicability of

the felon-in-possession law is unclear given the well-known

legal precept that “[a]ll citizens are presumptively charged

with knowledge of the law,” Atkins v. Parker, 472 U.S. 115,

130 (1985), we need not explore that tension here. After all,

6610 UNITED STATES v. FERRO

there is no dispute that Maria knew of the relevant facts that

constituted Robert’s commission of the crime of being a

felon-in-possession. That is enough knowledge to make the

innocent owner defense unavailable.

C. Whether these firearms are subject to

excessiveness review

[6] The government contends that the firearms here are

categorically immune from excessiveness review as “instru-

mentalities” of the crime of being a felon-in-possession.10

Before CAFRA in 2000, the government may have been cor-

rect in its contention that this category of forfeitures would be

insulated from excessiveness review under the Constitution.

But CAFRA changed the forfeiture landscape in 2000, and

today we hold that forfeitable property is subject to review

under the Excessive Fines Clause even if it can be considered

an “instrumentality” of an offense. After CAFRA, we think it

clear that all types of civil forfeitures—save perhaps forfei-

tures of contraband, such as unregistered hand grenades or

illegal drugs—are subject to review for excessiveness.11

10

Except where explicitly noted, our review in this and the following

section is the same whether we consider the matter under the statute or the

Excessive Fines Clause. The language used in the statute is virtually iden-

tical to that used by the Supreme Court in Bajakajian; CAFRA attempts

to put the two inquiries on equal footing when it states that a court must

“reduce or eliminate the forfeiture as necessary to avoid a violation of the

Excessive Fines Clause of the Eighth Amendment of the Constitution.” Id.

at 983(g)(3)-(4).

11

The government half-heartedly contends, in the alternative, that the

guns here can be insulated from excessiveness review because they are

“contraband.” We easily reject this argument. As the district court prop-

erly stated, contraband is property that is “inherently illegal, the mere pos-

session of which is a crime.” D. Ct. Order on Remission of Forfeiture, at

3 (citing von Hofe v. United States, 492 F.3d 175, 184 (2d Cir. 2007)).

None of the firearms still in dispute fall into that category: that is, if Rob-

ert Ferro were not a felon, he could have legally possessed them. The guns

are therefore unlike “child pornography, counterfeit currency, and unregis-

tered hand grenades” which are “objects, ‘the possession of which, with-

UNITED STATES v. FERRO 6611

In Austin, the Supreme Court stated that a sanction which

“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” and is therefore subject

to analysis under the Excessive Fines Clause. 509 U.S. at 621

(quoting United States v. Halper, 490 U.S. 435, 448 (1989)).

In determining whether a fine is punitive, at least in part, the

availability of an innocent owner defense is crucial. In Austin,

the Court held the civil in rem forfeiture in that case was puni-

tive since “[i]f forfeiture had been understood not to punish

the owner, there would have been no reason to reserve the

case of a truly innocent owner.” 509 U.S. at 617.

[7] Under CAFRA, which governs this case, the innocent

owner defense is now broadly available, except in the case of

forfeiture of contraband. See 18 U.S.C. § 983(d). From this,

we conclude that modern forfeiture statutes work “to punish

the owner,” at least in part, in all cases except for the forfei-

ture of contraband. Therefore, whatever the meaning of this

court’s prior reference to an “instrumentality test,” whereby

certain types of non-contraband forfeitures are insulated from

excessiveness review, that language has been abrogated by

CAFRA. See Thurman Street, 164 F.3d at 1197.

D. The focus of the excessiveness inquiry

Although the district court properly subjected the fine here

to excessiveness review, it misapplied the inquiry. Because

the district court 1) focused solely on Robert Ferro’s conduct

and did not consider Maria’s culpability, even though the pun-

ishment was actually levied on her, and 2) improperly consid-

out more, constitutes a crime.’ ” von Hofe, 492 F.3d at 184 (quoting One

1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 699 (1965)); see

also United States v. 144,774 Pounds of Blue King Crab, 410 F.3d 1131,

1132 (9th Cir. 2005) (holding that the illegally imported Blue King Crab

was “property illegal to possess” under § 983(d)(4) because no one could

lawfully possess it).

6612 UNITED STATES v. FERRO

ered Robert Ferro’s possession of contraband items for

purposes of assessing the fine in this proceeding, we remand

to the district court for a redetermination under the proper

standard. We express no opinion as to the proper amount of

forfeiture, since that is for the district court to determine in the

first instance.

[8] As the Supreme Court has stated, and as CAFRA codi-

fies by statute, “[a] punitive forfeiture violates the Excessive

Fines Clause if it is grossly disproportional to the gravity of

a defendant’s offense.” Bajakajian, 524 U.S. at 334; see also

18 U.S.C. 983(g). In assessing whether a fine is excessive,

this court is “not required to consider any rigid set of factors.”

United States v. $100,348 in Currency, 354 F.3d 1110, 1121

(9th Cir. 2004) (internal quotation marks omitted). The dis-

trict court, however, mechanistically applied four factors

stated by this court in $100,348 in Currency: “(1) the nature

and extent of the crime, (2) whether the violation was related

to other illegal activities, (3) the other penalties that may be

imposed for the violation, and (4) the extent of the harm

caused.” D. Ct. Excessiveness Order at 7 (citing $100,348 in

Currency, 354 F.3d at 1122). In applying these factors, it

looked to whether the forfeiture “is grossly disproportional to

the gravity of Robert Ferro’s offenses.” Id.

[9] It was error for the district court to focus solely on

Robert Ferro’s conduct and therefore fail to consider owner

Maria Ferro’s culpability, if any. Before Bajakajian, the

caselaw in our circuit was clear that the excessiveness inquiry

must focus, at least in part, on the “culpability of the owner.”

See United States v. Real Property Located in El Dorado

County at 6380 Little Canyon Road, 59 F.3d 974, 982 (9th

Cir. 1995). Although the actual two-pronged test for exces-

siveness followed by this court in 6380 Little Canyon Road

was abrogated in 1998 by Bajakajian’s “grossly dispropor-

tional” standard, nothing in Bajakajian directs a court to

ignore the culpability of the owner and focus solely on

whether the fine is excessive given the conduct that subjected

UNITED STATES v. FERRO 6613

the property to forfeiture, i.e., Robert Ferro’s possession of

the collectable firearms. Indeed, Bajakajian was necessarily

silent on that particular issue, since Bajakajian involved a

criminal in personam forfeiture, which type of forfeiture

“reaches only currency owned by someone who himself com-

mits a reporting crime.” Bajakajian, 524 U.S. at 328 n.3

(emphasis added). And the language of the Supreme Court’s

precise holding—that a court must examine whether a fine is

“grossly disproportional to the gravity of a defendant’s

offense”—assumes a human defendant who is the actual per-

son that committed the crime. Id. at 334 (emphasis added).

Where, as here, the person who committed the sole crime

charged which gave rise to forfeitability is not the property’s

owner, the culpability of the owner must be considered in the

analysis. We must remember that Maria was not charged with

any crime, much less a crime which in some way enabled or

caused Robert’s crime.

[10] The Eighth Amendment’s Excessive Fines Clause

requires the property owner’s culpability to be considered. A

“fine” as used in the Excessive Fines Clause refers to “a pay-

ment to a sovereign as punishment for some offense.”

Browning-Ferris, 492 U.S. at 265. As the property’s owner,

it is Maria who is forced to “pay the sovereign,” and it is

Maria who is being punished. Hence, the proportionality

inquiry must center on Maria’s culpability and the various

factors mentioned in $100,348 in Currency, supra at 6612.

[11] The proper focus of the excessiveness inquiry is a

novel issue for this circuit after Bajakajian. The Second Cir-

cuit, though, has explicitly considered this issue in a post-

Bajakajian case, and it held that it is the individual culpability

of a claimant—i.e., the person who is actually punished by the

“fine”—which must be considered in the excessiveness analy-

sis. In von Hofe v. United States, the government initiated a

civil in rem forfeiture action against a home, worth approxi-

mately $248,000, owned jointly by claimants Harold and

Kathleen von Hofe. 492 F.3d at 178-79. Upon a valid search,

6614 UNITED STATES v. FERRO

the police had found 65 marijuana plants in the basement of

the couple’s home, and the property was subject to civil in

rem forfeiture because the house had a “substantial connec-

tion” to the drug possession crime. Id. at 180-81. Harold and

Kathleen von Hofe both filed as claimants for their respective

shares of the property, and, on appeal from an order uphold-

ing the forfeiture of the entirety of both claimants’ ownership

interests, the Second Circuit analyzed whether the forfeiture

was excessive with respect to each claimant. The district court

found that Harold had been the one growing, using, and shar-

ing the marijuana, and the Second Circuit affirmed that a for-

feiture of Harold’s $124,000 ownership interest was not

excessive. Id. at 188.

[12] The court reached the contrary conclusion for Har-

old’s wife Kathleen. Id. at 191. The court said that Kathleen’s

conduct could be “best described as turning a blind eye to her

husband’s marijuana cultivation in their basement.” Id. Thus,

although Kathleen “was not an innocent owner,” she “b[ore]

minimal blame for the criminal activity.” Id. at 188-89. The

Second Circuit found that the forfeiture of her entire $124,000

interest in the house was an excessive fine, but the Second

Circuit remanded the case to the district court for further fac-

tual development without specifying the maximum constitu-

tional fine. Id. at 191. We agree with the approach taken in

von Hofe.

Of course, though von Hofe provides the correct approach,

the outcome on these facts may be somewhat different. Espe-

cially from our vantage point as an appellate tribunal, Maria’s

culpability, if any, for enabling Robert’s illegal possession of

firearms is hard to assess. Maria knowingly allowed hundreds

of collectable, and evidentially operational, firearms to be

stored away in her house; they were there possessed by a

felon. Moreover, even though she was the owner of hundreds

of these firearms, the district court found that she “did not

know about the vast majority of the firearms hidden in the

house; she did not know how many guns were in the house

UNITED STATES v. FERRO 6615

nor did she know where they were located.” Some might

think this careless because some of the firearms were opera-

ble. Others, more at home with the presence of firearms,

would harbor no cause for alarm. Also, Maria seems to have

been quite naive: she could also be characterized as a doting

wife who failed to ask any hard questions of the husband she

loved and trusted, and to whom she has been married for dec-

ades. Choosing among these or possibly other scenarios is

something that must be done by the district court in the first

instance, since that court is in a position to make credibility

determinations and has doubtless become familiar with the

principals over the course of this lengthy litigation.

[13] The government urges this court to focus only on

Robert’s conduct and contends that to allow Maria’s culpabil-

ity to be considered “suggests a profound misunderstanding of

federal forfeiture law.” The government then cites a statutory

excessiveness inquiry which directs a district court to “com-

pare the forfeiture to the gravity of the offense giving rise to

the forfeiture.”12 18 U.S.C. § 983(g)(3). But even if the gov-

ernment is correct that the statutory inquiry for excessiveness

under § 983(g)(3) is limited to consideration of the conduct

giving rise to the forfeiture, it is here where we must break

from the terms of the statute and proceed directly to the

Eighth Amendment analysis. While a statute can provide

more protection for a defendant than the Constitution

requires, it cannot provide less. Because we conclude that the

Constitution requires consideration of the culpability of the

property’s owner, a district court must undertake that analysis,

even if it is not required to do so under the statute.

12

When considering the “gravity of the offense” of this unique felon-in-

possession crime, the district court should also probably have considered

the fact that many of the firearms here could not have reasonably been

expected to have been used for criminal purposes because of their age and

status as collectable firearms, but this contention is not pressed on appeal.

Still, the district court is free to consider that fact as well when it under-

takes its excessiveness inquiry anew.

6616 UNITED STATES v. FERRO

[14] Second, the district court improperly focused on Rob-

ert Ferro’s entire course of conduct rather than just the con-

duct that gave rise to the forfeiture of the collectable guns. For

instance, the district court, in discussing what “other penalties

[were] authorized for these violations,” included Robert’s

possession of a “military rocket-launcher tube,” “guns with

obliterated serial numbers,” a “hand grenade,” and other con-

traband weapons such as a “sawed-off shotgun.” D. Ct. For-

feiture Order 8-9. As Maria points out, the inclusion of the

contraband weapons in the analysis is unfair double-counting

because those contraband firearms were already forfeited

without challenge from Maria. Because the collectable fire-

arms are the only property remaining in this proceeding, their

unlawful possession should be the sole focus of the excessive-

ness inquiry.

***

[15] Today, we answer three questions in federal forfeiture

law: (1) whether the innocent owner defense is available to

those who know of all of the relevant facts giving rise to the

property’s forfeitability; (2) whether a civil forfeiture of the

“instrumentalities” of a crime can be reviewed for excessive-

ness; and (3) whether excessiveness review must focus on the

individualized culpability of the property’s owner. As the

answers to those questions apply to this case, we AFFIRM the

district court’s order that the property here is forfeitable, and

we VACATE the determination of excessiveness and

REMAND for reconsideration of the excessiveness inquiry

according to the principles discussed in this opinion. We

express no view as to what the proper amount of reduction

will be under a corrected excessiveness analysis.13

AFFIRMED IN PART, VACATED IN PART, AND

REMANDED.

13

Each party shall bear its own costs for these cross-appeals.