# United States v. Hosep Krikor Bajakajian, Aka: Joe Bajakajian

> Court of Appeals for the Ninth Circuit · May 20, 1996 · 84 F.3d 334

URL: https://www.frixlaw.com/law-library/cases/9489169

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellant, v. Hosep Krikor BAJAKAJIAN, AKA: Joe Bajakajian, Defendant-Appellee
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** May 20, 1996
- **Citations:** 84 F.3d 334; 96 Daily Journal DAR 5743; 96 Cal. Daily Op. Serv. 3520; 1996 U.S. App. LEXIS 11464; 1996 WL 263392
- **Precedential status:** Published
- **Opinion:** Concurrence by Wallace
- **Judges:** Wallace, Ferguson, Nelson
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9489169

## How later opinions describe it (automated extraction)

- affirming lower court decision that found that the entire amount of currency was potentially forfeitable, then reduced the amount forfeited to a level proportional with culpability in order to conform with the Eighth Amendment

## Opinion text

WALLACE, Circuit Judge,
concurring:
The majority takes our dicta in United States v. $69,292.00 in U.S. Currency, 62 F.3d 1161 (9th Cir.1995) ($69,292), to an illogical extreme. In so doing, the majority strikes down a portion of 18 U.S.C. § 982 (a)(1), thereby unduly limiting the government’s forfeiture powers. I agree only with the majority’s ultimate decision to affirm the $15,000 forfeiture. Because I would do so for entirely different reasons, I concur in result only.
We are not bound by the dicta in $69,292. In $69,292, we explained the analysis used to determine whether a forfeiture violates the Eighth Amendment. $69,292, 62 F.3d at 1166-67, citing United States v. Real Property Located in El Dorado County, 59 F.3d 974 (9th Cir.1995) (El Dorado). To satisfy the Eighth Amendment’s prohibition against excessive fines, forfeited property must be instrumental to the crime and proportional in value to the culpability of the owner. El Dorado, 59 F.3d at 982 . In $69,292, the district court did not analyze the forfeiture in terms of our intervening decision in El Dora-do. Thus, we remanded to enable the district court to make appropriate findings. $69,292, 62 F.3d at 1168.
The majority would read $69,292 as holding that currency involved in a section 5316 violation is never an instrumentality of the crime. Majority at 337 & n.6. The majority’s reading of $69,292 renders all forfeitures of currency in such circumstances unconstitutional under our test in El Dorado. But if in $69,292 we had held that all forfeitures of currency involved in reporting violations necessarily fail El Dorado, we would not have written that, “[w]e make no assessment as to *339 whether the forfeiture meets the El Dorado test.” $69,292, 62 F.3d at 1168. As Judge Rymer accurately wrote in dissent, $69,292’s instrumentality discussion is dicta. Id. at 1168 (Rymer, J., dissenting).
Not only is this $69,292 discussion clearly dicta, but there are two additional interrelated problems — one with the majority’s interpretation of the dicta in $69,292 and one with the $69,292 dicta itself.
First, the majority misreads our remarks in $69,292. We asserted there that we were not “persuaded that currency lawfully acquired and possessed has the necessarily close relationship to the crime simply because it has not been reported.” Id. at 1167 (emphasis added). Our remarks were focused on the source of the defendants’ funds, and we suggested that legally obtained funds might not be instrumental. See id. (explaining that “the reporting requirement applies to all currency, whether it is lawfully gained or not,” and suggesting that we should analyze forfeiture based in part on the source of the funds). If on remand the district court in $69,292 had found that the defendants acquired the funds illegally, nothing in $69,-292 would have precluded forfeiture.
The majority, purporting to “adopt the logic of the court in $69,292,” maj. op. at 337, overlooks $69,292’s underlying rationale. The majority holds that “[forfeiture of currency is unconstitutional when the crime to which the forfeiture is tied is a mere failure to report pursuant to 31 U.S.C. § 5316 .” Id. Thus, even if a district court finds that money was illegally acquired, the majority does not allow forfeiture. Or, even if a defendant’s failure to report is combined with another violation of United States law (and the other law does not independently allow forfeiture), the majority would still not allow forfeiture. Nothing in $69,292’s dicta supports this result.
Second, it is precisely $69,292’s focus on lawfully acquired funds that makes $69,292’s instrumentality dicta problematic. $69,292 suggests that instrumentality should turn, at least in part, on the source of the funds. However, I interpret the instrumentality inquiry as being completely divorced from the source of the funds. After all, why is currency any more instrumental when the currency is legally obtained as opposed to when it is illegally obtained? See United States v. $145,139.00, 18 F.3d 73 , 75 (2d Cir.) (Currency was “an instrument of the crime [of failure to report]. It was the ‘means’ by which the crime was committed.... Indeed, it was the very sine qua non of the crime.”), cert. denied, — U.S. —, 115 S.Ct. 72 , 130 L.Ed.2d 27 (1994); Austin v. United States, 509 U.S. 602, 627-29 , 113 S.Ct. 2801, 2815 , 125 L.Ed.2d 488 (1993) (Scalia, J., concurring) (explaining the instrumentality inquiry as being whether “property has been ‘tainted’ by unlawful use ... [in other words,] whether the confiscated property has a close enough relationship to the offense” (emphasis omitted)), quoted in El Dorado, 59 F.3d at 982 . In this case, the crime was Bajakajian’s failure to report $357,144 that he had secretly stashed. I cannot agree with the majority that there is an insufficient nexus between the acquired currency and the offense — without the currency, there can be no offense.
Of course, the source of the acquired funds does have a place in our Eighth Amendment inquiry under El Dorado. However, the inquiry into the source of the funds is part of the proportionality analysis, not the instrumentality inquiry. El Dorado, 59 F.3d at 985-86 (explicitly requiring district court to consider, as part of proportionality determination, the “culpability of the owner”); see also id. at 983 (adopting “the proportionality test as a check on the instrumentality approach” because of the instrumentality prong’s “potentially harsh results, when applied alone”). If, as the district court held, Bajakajian’s funds were lawfully obtained from friends and family and were not tó be illegally used, then these facts might warrant a reduced forfeiture to avoid an excessive fine.
I therefore disagree with the majority’s conclusion that the currency was not instrumental as a matter of law. I would hold that the district court properly found that the entire amount of currency was potentially forfeitable. The currency was instrumental. As to proportionality, I would review for clear error the district court’s factual findings underpinning its decision to forfeit only *340 $15,000. See United States v. Alcaraz-Garcia, 79 F.3d 769, 772 (9th Cir.1996) (findings of fact underlying forfeiture reviewed for clear error). The district court found that the funds were lawfully acquired and were to be lawfully used. The district court next found that forfeiture of only $15,000 was proportional to Bajakajian’s culpability. I do not believe that the district court’s findings were clearly erroneous; therefore, I would affirm the $15,000 forfeiture.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9489169. Public record. Not legal advice.