Amicus Curiae Brief — United States v. Bajakajian

No. 96-1487

In THE

- SuPREME COURT OF THE UNITED STATES

‘OCTOBER TERM, 1996

UNITED STATES OF AMERICA,

Petitioner,

Vv.

HOSEP KRIKOR BAJAKAJIAN,

Respondent.

On Writ of Certiorari to the United States Court of

| “esa for the Ninth Circuit

‘BRIEF OF CLARENDON FOUNDATION AS

AenCos CURIAE IN SUPPORT OF RESPONDENT

RONALD D. MAINES

(Counsel of Record)

R. SHAWN GUNNARSON

. MAINES & LOEB, PLLC

2300 M Street, N.W.

Washington,

D.C. 20037

(202) 223-2817

Counsel for Amicus Curiae

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TABLE OF CONTENTS

Page

BARBER OR AUTTIRORITEBS .nnccecsccssccsscecsscssvvesseessessesssessoseoese. ii

INTEREST OF AMICUS CURIAE ooo.ooooooccccccccccccccccccoseeocoose l

SUMMARY OF ARGUMENT oon ccccccccccseecseseeeeeecee.. l

ET ESSN SE 1 EEF ne OCC 2

I. THE GOVERNMENT’S INTERPRETATION OF

18 U.S.C. § 982(a)(1) INVITES THE IMPOSITION OF

UNCONSTITUTIONALLY EXCESSIVE FINES BY

THREATENING TO FORFEIT LAWFULLY OBTAINED

MONEY FROM MINIMALLY CULPABLE DEFEN-

SD elasitdaiasetianieediaibinseetisididasscsestauenssonianvdedseosesisees 2

A. Criminal Forfeitures Imposed Under 18 U.S.C.

§ 982(a)(1) Are Limited by the Excessive Fines

RECENT Eel SASS 4

B. Because the Government’s Interpretation of 18

U.S.C. § 982(a)(1) Would Permit the Forfeiture

of Lawfully Obtained Funds from Defendants

Lacking Mens Rea, the Risk of Constitutional

Violation Is Heightemed. ooo... cccccccccsceccesees 5

C. The Government’s Interpretation of 18 U.S.C. §

982(a)(1) Substantially Increases the Risk that

Unconstitutionally Excessive Fines Will Be

MNES tL a a 8

Il. THE GOVERNMENT’S POSITION WOULD REMOVE

AN INDISPENSABLE CHECK ON THE

GOVERNMENT’S ABUSE OF CRIMINAL FORFEI-

TURE BY ALL BUT ELIMINATING JUDICIAL

IIT ilicehdbccidlicnsiasiciadhiaciceaeadeetigmatinmsininncssenneaniene 9

ELE I ea a 14

+*

— il --

TABLE OF AUTHORITIES

Cases Page

Alexander v. United States, 509 U.S. 544

(2) ee ee 5,8

Austin v. United States, 509 U.S. 602 (1993) ..... passim

Browning-Ferris Industries v. Kelco Disposal,

492 U.S. 297 (29GB) ..cccccrocessrccvcosesorerevesvoososssososssseees 4,12

Caplin & Drysdale, Chartered v. United

States, 491 U.S. 617 (1989) .....crececscsrsrsscersresersersssesses 13

Harmelin v. Michigan, 501 U.S. 957 (1991) ........ 10, 12

Marbury v. Madison, 5 U.S. (1 Cranch) 137

EEE Reccescessetanttideninelialaaaaaaaaenneanl 10, 11

Solem v. Helm, 463 U.S. 277 (1983) ccc 2,9, 10

United States v. $359,500 in United States

Currency, 828 F.2d 930 (2d Cir. 1987) occ 6

United States v. $94,000.00 in United States

Currency, 2 F.3d 778 (7th Cir, 1993) o.ccccccceceeee 6,7

United States v. Bajakajian, 84 F.3d 334

(Deta Cig. 19D6) ...coccccccesecorscsesccssecssssssnnnnniel ES Seer 3

United States v. Certain Real Property Located

at 11869 Westshore Drive, 70 F.3d 923 (6th

+2 | | ) EEE eee x

United States v. Chandler, 36 F.3d 358 (4th

+ |, ) eee x

United States v. Halper, 490 U.S. 435 (1989) .........00 4

United States v. Milbrand, 58 F.3d 841 (2d

0 |). ) EE ee %

United States v. One (1) Lot of Twenty-Four

Thousand Nine Hundred Dollars ($24,

900.00) in United States Currency, 770 F.2d

1530 CER Cle. 19CE) cncccccrcccscccecsssnsseninnistsenensesescensrsnsnnshs 6

United States v. One Hundred Twenty-Two

Thousand Forty-Three Dollars ($122,043.00)

in United States Currency, 792 F.2d 1470

(Dele Che. 1986) ..cccccocosocccscccscerscossssenssnnmesssseessnesnnnenscesesstats 6

United States v. Ramsey, 431 U.S. 606 (1977) ............ 12

United States v. Real Property Located in El

Dorado County, 59 F.3d 974, 985-86 (9th

Cir. 1995)

United States v. Twenty Thousand Seven

Hundred Fifty-Seven Dollars and Eighty-

Three Cents ($20,757.83) Canadian Cur-

rency, 769 F.2d 479 (8th Cir. 1985)

Yee v. Escondido, 503 U.S. 519 (1992)

Constitutional and Statutory Provisions

18 U.S.C. § 9B2(a)(L) cooccccccccccccccessesseseeeeeeeeeeeeee

31 U.S.C. § 5316(a)(L)(A) coocccccccccccccccccsssssomoeee

U.S. Const. amend. VIII (Excessive Fines

Clause)

SPORE REET RHHHeE Oe e ee eee eee

PPP eee ee eee eee eee ee eee ee eee

Other Materials

THE FEDERALIST (Jacob E. Cooke ed., 1961)

| GEORGE MASON, THE PAPERS OF GEORGE

MASON, 1725-1792 (R. Rutland ed. 1970)

PORTER eee eee eee

nintiee 5,

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6

Pursuant to Sup. CT. R. 37.6, Clarendon Foundation

states that no counsel for a party authored this brief in

whole or in part, and that no person or entity other than

Clarendon Foundation, its members, and counsel, made a

monetary contribution to the preparation or submission of

the brief.

INTEREST OF AMICUS CURIAE

Pursuant to Rule 37.3 of this Court, Clarendon

Foundation respectfully submits this brief amicus curiae

in support of Respondent. Written consent to the filing

of this brief has been granted by counsel for all parties,

and letters of consent have been lodged with the Clerk.

Clarendon Foundation is a nonprofit, nonpartisan legal

foundation concerned with significant issues related to

the Constitution and democratic government. The

Foundation is committed to an ongoing review of the

tenets of our constitutional government, in the spirit of

George Mason’s admonition that “no free government,

or the blessings of liberty, can be preserved to any people,

but .. . by frequent recurrence to fundamenta! principles.”

GEORGE MASON, THE VIRGINIA DECLARATION OF RIGHTS,

reprinted in | THE PAPERS OF GEORGE MASON, 1725-

1792, at 278 (R. <utland ed. 1970). Because this case

raises issues relating to the limits placed by the Eighth

Amendment Excessive Fines Clause on the authority of

the United States Government, we believe that our

perspective will complement the briefs of the parties and

assist the Court in resolving the Question Presented.

SUMMARY OF ARGUMENT

This case tests the limits that the Excessive Fines

Clause of the Eighth Amendment places on the authority

of the United States Government to impose the forfeiture

of a person’s money, when that person neglects—even

unwittingly—to report any amount over $10,000 before

carrying the money out of the country. The Government

contends that the entire amount of any unreported funds

must be forfeited and that federal courts possess the

authority only to determine whether a forfeiture under

18 U.S.C. § 982(a)(1) is “grossly disproportionate’ to

the seriousness of the offense,” Br. Pet. at 29 (emphasis

atts

added) (citing Solem v. Helm, 463 U.S. 277, 288 (1983)

—rather than relative to the culpability of the defendant.

The Government’s interpretation of 18 U.S.C. §

982(a)(1) should be rejected because it violates the

Constitution in at least two ways. First, it invites the

imposition of unconstitutionally excessive fines by

permitting the forfeiture of lawfully obtained money from

even minimally culpable defendants. Second, it effectively

removes an indispensable check on the Government's

abuse of criminal forfeiture by all but eliminating judicial

review of punishments under this statute. The significance

of this latter point is all the more magnified if, as the

Government urges, the statute imposes strict liability such

that a defendant’s culpability should never be a factor

in the statute’s application. Under that view, an unwitting

defendant is deprived of any argument that he was

ignorant of the law, as well as the possibility of equitable

proportioning of punishment by a federal judge who

recognizes the absence of mens rea but is powerless to

do anything about it, notwithstanding apparent violation

of the Excessive Fines Clause.

I. THE GOVERNMENT'S INTERPRETATION OF

18 U.S.C. § 982(a)(1) INVITES THE IMPOSITION

OF UNCONSTITUTIONALLY EXCESSIVE FINES

BY THREATENING FORFEITURE OF LAWFULLY

OBTAINED MONEY FROM MINIMALLY CULPABLE

DEFENDANTS.

The forfeiture statute codified at 18 U.S.C. § 982(a)(1)

applies, among other times, when a person is convicted

of failing to report any amount of currency in excess of

$10,000 before taking the money out of the country.

The court, in imposing sentence on a person

convicted of an offense in violation of section .. .

niin

5316... of title 31. . . shall order that the person

forfeit to the United States any property, real or

personal, involved in such offense, or any property

traceable to such property.

The Government argues that criminal forfeiture under

Section 982(a)(1), predicated solely on the failure to

file a currency report, satisfies the Excessive Fines Clause

without case-specific judicial “inquiry into the culpability

of the owner or the property’s economic value.” Br.

Pet. at 11. Contrary to the Ninth Circuit’s holding below,

see United States v. Bajakajian, 84 F.3d 334, 337-38

(9th Cir. 1996), the Government would have this Court

construe any amount of unreported funds, regardless of

the culpability of the defendant or the source of the funds,

as the instrumentality of crime. See Br. Pet. at 10, 19-20.

According to the Government, the instrumentality of

crime, by definition, can be forfeited without violating

the Eighth Amendment.

[T}he forfeiture of the instrumentalities of crime,

" whether in a civil or criminal proceeding, is a

proportionate remedy. It is the property’s

involvement ia the offense that justifies such a

remedial forfeiture; the Eighth Amendment does

not require an additional inquiry into the culpability

of the owner or the property’s economic value.

Br. Pet. at 11; see also Br. Pet. at 28-29.

This interpretation of Section 982(a)(1) invites

violations of the Excessive Fines Clause by permitting

the imposition of unconstitutionally excessive fines even

where defendants act without a criminal mens rea. That

outcome is deeply troubling because the Government

carves no room for equitable adjustments to the penalty

of wholesale forfeiture. To demonstrate why the

Government’s position is constitutionally untenable, we

abe

first establish the premise that forfeitures under Section

982(a)(1) are limited by the Excessive Fines Clause.

A. Criminal Forfeitures Imposed Under 18

U.S.C. § 982(a)(1) Are Limited by the

Excessive Fines Clause.

The Eighth Amendment prohibits the Government from

imposing “excessive fines.” U.S. CONST. amend. VIII.

“The Excessive Fines Clause limits the Government’s

power to extract payments, whether in cash or in kind,

‘as punishment for some offense.’” Austin v. United

States, 509 U.S. 602, 609-10 (1993) (quoting Browning-

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

(1989)). “The notion of punishment, as we commonly

understand it, cuts across the division between the civil

and the criminal law,” United States v. Halper, 490 U.S.

435, 447-48 (1989). Whether the Excessive Fines Clause

applies to 18 U.S.C. § 982(a)(1) therefore depends not

on whether it is “civil or criminal, but rather whether

it is punishment.” Austin v. United States, 509 U.S. 602

(1993). The Court’s canvass of the Eighth Amendment’s

doctrinal underpinning in Austin demonstrated that

“forfeiture .. . historically [has] been understood, at least

in part, as punishment.” /d. To determine whether 18

~ U.S.C. § 982(a)(1) imposes punishment within the meaning

of the Excessive Fines Clause, one need only look to the

words of the statute itself.

Section 982(a)(1) directs the court to forfeit property

“in imposing sentence on a person convicted of an

offense.” The forfeiture order is expressly limited to

“property . . . involved in such offense, or any property

traceable to such property.” This statutory language not

only ties forfeiture to various currency offenses, including

the failure to report, cf Austin, 509 U.S. 602, but limits

bot

_

the property subject to forfeiture to property directly

“involved” in the criminal offense or “traceable” to such

property. This textual evidence of Section 982's punitive

dimension cannot be ignored, as even the Government

seems to recognize when it characterizes the statute as

serving “punitive purposes.” Br. Pet. at 11. As this

Court said in an earlier case, “The in personam criminal

forfeiture at issue here is clearly a form of monetary

punishment no different, for Eighth Amendment purposes,

from a traditional ‘fine.’” Alexander v. United States,

509 U.S. 544 (1993) (citing Austin v. United States, 509

U.S. 602 (1993)).

Inasmuch as criminal forfeitures imposed under Section

982(a)(1) plainly implicate the limitations of the Excessive

Fines Clause, the Government’s interpretation of the

statute is erroneous because it eviscerates—a priori—the

prospect of a federal judge’s making a case-specific

adjustment to the quantity of punishment.

B. Because the Government’s Interpretation

of 18 U.S.C. § 982(a)(1) Would Permit the

Forfeiture of Lawfully Obtained Funds

from Defendants Lacking Mens Rea, the

Risk of Constitutional Violation Is

Heightened.

The Government argues that “the Eighth Amendment

does not require an additional inquiry into the culpability

of the owner or the property’s economic value.” Br.

Pet. at 11. It rationalizes this position on the ground

that “such a forfeiture is perfectly calibrated to the

seriousness of the defendant’s conduct since the amount

of the fine sncreases in direct proportion to the amount

that is concealed.” /d. at 12. Leaving aside the question

whether “unreported” necessarily means “concealed,”

sarc

there is a serious constitutional problem with the

Government’s interpretation of the statute.

The problem arises, in part, from a lacuna in the statute

that requires the currency report. 31 U.S.C. §

53 16(a)(1)(A) does not clearly say whether a person must

have knowledge of the law to be guilty of violating the

statute. A majority of circuits addressing the question

have held that knowledge of the reporting requirement

is not an element of the offense. See United States v.

$359,500 in United States Currency, 828 F.2d 930, 934

(2d Cir. 1987); United States v. $94,000.00 in United

States Currency, 2 F.3d 778, 785 (7th Cir. 1993); United

States v. Twenty Thousand Seven Hundred Fifty-Seven

Dollars and Eighty-Three Cents ($20,757.83) Canadian

Currency, 769 F.2d 479, 482 (8th Cir. 1985); United

States v. One Hundred Twenty-Two Thousand Forty-Three

Dollars ($122,043.00) in United States Currency, 792

F.2d 1470, 1474 (9th Cir. 1986). But see United States

v. One (1) Lot of Twenty-Four Thousand Nine Hundred

Dollars ($24,900.00) in United States Currency, 770

F.2d 1530, 1534 (11th Cir. 1985). This trend among

the circuits carries grave implications for the

constitutionality of the Government’s interpretation of

Section 982(a)(1).

The Government urges the Court to adopt the rule

that any money not reported must be forfeited. When

combined with the prevailing view in the circuits, which

makes violation of 31 U.S.C. § 5316(a){1)(A) a strict

liability offense, this rule dramatically increases the

likelihood that unconstitutionally excessive fines will be

imposed. At the same time, moreover, the Government

would prevent courts from evaluating the excessiveness

of such forfeitures and reducing, as did the district court

below, the amount of the forfeiture in order to avoid a

constitutional violation. The real-world consequences

oFa

of adopting the Government’s interpretation are illustrated

by the following hypothetical.

Imagine a businessperson who collects rare coins.

Suppose he decides to carry his coins, valued at $100,000,

to an exhibition in Toronto. On the day of his trip he

arrives at the airport 45 minutes late, and in his haste

to avoid missing the plane, overlooks the “prominently

posted signs informing passengers in several languages

of the need to report sums over $10,000.00.” United

States v. $94,000.00 in United States Currency, 2 F3d

778, 784 (7th Cir. 1993). Before the plane departs, a

Customs inspector discovers the coins in his luggage,

and the man is arrested for failing to make the proper

currency report.

At trial the prosecutor proves only that the coins were

worth more than $10,000 and that the man was booked

for a flight to Toronto. Because the trial occurs outside

the Eleventh Circuit, his ignorance of the law is no

defense, and the man is convicted of violating 31 U.S.C.

§ 5316(a)(1)(A). The court never inquires into the source

of his money, the use to which it was to be put, or any

other measure of personal culpability. The man thus loses

his property to the Government solely because he failed

to report how much money he was carrying.

The potential consequences of adopting the

Government’s interpretation of the forfeiture statute are

plain. If read as the Government urges, Section 982(a)(1)

will permit the Government to impose forfeiture of

lawfully obtained funds from defendants, regardless of

personal culpability, without any opportunity for the

courts to reduce the amount of the forfeiture if it is found

to be unconstitutionally excessive. This interpretation

risks the Government’s acting unlawfully by dramatically

increasing the likelihood that unconstitutionally excessive

fines will be imposed.

C. The Government’s Interpretation of 18

U.S.C. § 982(a)(1) Invites the

Imposition of Unconstitutionally

Excessive Fines.

This Court has so far declined to establish a test for

determining when a particular fine, subject to the

limitations of the Excessive Fines Clause, is excessive.

See Alexander v. United States, 509 U.S. 544 (1993);

Austin v. United States, 509 U.S. 602 (1993). It has

preferred instead to allow the issue to percolate among

the lower courts. See id. (citing Yee v. Escondido, 503

U.S. 519, 539 (1992)).

Several circuit courts have already responded to this

invitation by devising tests to determine when a fine is

unconstitutionally excessive. See, e.g., United States

v. Milbrand, 58 F.3d 841, 847-48 (2d Cir. 1995); United

States v. Chandler, 36 F.3d 358, 363 (4th Cir. 1994);

United States v. Real Property Located in El Dorado

County, 59 F.3d 974, 985-86 (9th Cir. 1995). But see

United States v. Certain Real Property Located at 11869

Westshore Drive, 70 F.3d 923, 930 (6th Cir. 1995)

(declining to adopt a single test for excessiveness).

While there has been extensive discussion among the

courts regarding the appropriate factors to consider when

determining whether the imposition of a particular fine

would be unconstitutionally excessive, we are aware of

no court that entirely omits the culpability of the owner

from consideration. Despite this widespread

understanding of the law, the Government would have

federal judges shut their eyes to the presence or absence

of personal culpability. Assuming that the Court accepts

the relevance of personal culpability, in any form, as a

criterion of validity under the Excessive Fines Clause,

~

the Government’s interpretation of 18 U.S.C. § 982(a)(1)

invites the imposition of unconstitutionally excessive fines.

For that reason alone the Government’s position should

be rejected. However, its particular interpretation of

the statute raises another constitutional objection as well.

Il. THE GOVERNMENT’S POSITION WOULD

REMOVE AN INDISPENSABLE CHECK ON THE

GOVERNMENT’S ABUSE OF CRIMINAL

FORFEITURE BY ALL BUT ELIMINATING

JUDICIAL REVIEW.

The Government contends that courts have “a limited

role in determining whether a punitive forfeiture is

constitutionally excessive.” Br. Pet. at 29.

Under the statutory scheme, a district court does

not have discretion to reduce the amount of a civil

or criminal forfeiture. Congress entrusted to the

Secretary of the Treasury and to the Attorney

General the responsibility to decide the

circumstances under which such a reduction would

be warrantéd.

Id. at 5. The Government would limit courts faced with

an allegedly excessive fine to ask only whether a

challenged forfeiture is “‘grossly disproportionate’ to

the seriousness of the offense.” /d. (citing Solem v. Helm,

463 U.S. 277, 288 (1983)). Because Section 982(a)(1)

deems forfeited what the Government construes to be

“the instrumentalities of crime,” id. at 11, the forfeiture

“will virtually always constitute a proportionate

punishment.” /d. at 28. This already restricted scope

of judicial review is further strait jacketed, in the

Government’s opinion, by the “substantial deference [that]

must be given to Congress’ judgment concerning the

seriousness of the offense.” Jd. (citing Harmelin v.

~10-

Michigan, 501 U.S. 957, 998-99 (1991) (Kennedy, J.,

concurring in part and concurring in the judgment)). “[A]s

long as Congress has made a reasonable judgment that

the punishment fits the crime, judicial inquiry is at an

end.” Jd. (citing Harmelin v. Michigan, 501 U.S. 957,

998-99, 1001 (1991) (Kennedy, J., concurring in part

and concurring in the judgment); Solem v. Helm, 463

U.S. 277, 303 (1983)).

This argument is objectionable because it undermines

the authority of federal courts to vindicate claims under

the Excessive Fines Clause. To see just how deeply the

Government’s argument cuts into the courts’ authority

of judicial review, consider why courts possess that

authority in the first place.

When presented with a justiciable legal dispute over

which it has jurisdiction, a court has the duty “to say

what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch)

137, 177 (1803). This duty occasionally requires courts

to apply a constitutional provision in preference to an

ordinary statute.

The interpretation of the laws is the proper and

peculiar province of the courts. A constitution is

in fact, and must be, regarded by the judges as a

fundamental law. It therefore belongs to them to

ascertain its meaning as well as the meaning of any

particular act proceeding from the legislative body.

If there should happen to be an irreconcilable

variance between the two, that which has the

superior obligation and validity ought of course to

be preferred; or in other words, the constitution

ought to be preferred to the statute, the intention

of the people to the intention of their agents.

THE FEDERALIST No. 78, at 525 (Jacob E. Cooke ed.,

1961) (Alexander Hamilton). In short, “It is a proposition

too plain to be contested that the Constitution controls

any legislative act repugnant to it, or that the Legislature

may alter the Constitution by an ordinary act.” Marbury

5 U.S. (1 Cranch) at 177.

Here, however, the Government has suggested that

the Court all but abandon its duty to give the Constitution

controlling force over an ordinary statute when the statute

is the forfeiture provision contained in 18 U.S.C. §

982(a)(1) and when the controlling constitutional

provision is the Excessive Fines Clause. According to

the Government, “a district court does not have discretion

to reduce the amount of a civil or criminal forfeiture.”

Br. Pet. at 5. Nothing in that stark, dogmatic statement

allows for the possibility that a particular forfeiture under

18 U.S.C. § 982(a)(1) might violate the Excessive Fines

Clause. Unfortunately, this absence of qualification

cannot be explained away merely as a poor choice of

words.

The Government repeatedly urges this Court to find

that all criminal forfeitures under Section 982(a)(1) are

inherently constitutional under the Excessive Fines Clause.

This is so, the Government says, because “the most

relevant constitutional inquiry is whether the value of

the fine is excessive when compared to the seriousness

of the offense.” Br. Pet. at 28 (citing Austin v. United

States, 509 U.S. 602 (1993) (Scalia, J., concurring in

part and concurring in the judgment). Since “[t]he

government has an overriding sovereign interest in

controlling what property leaves and enters this country,”

Br. Pet. at 20 (citing United States vy. Ramsey, 431 U.S.

606, 616-19 (1977)), the punishment always fits the crime.

“[T]he defendant, through his own actions, has put his

property in the service of crime, and thereby has set the

size of his own financial penalty.” Br. Pet. at 28.

This argument, while inventive, proves too much. If

valid, it would mean that no forfeiture, under any statute,

= tS

could be challenged under the Excessive Fines Clause.

The Government, in theory, could always assert “an

overriding sovereign interest” in whatever legislative

purpose gave rise to a forfeiture statute, and the amount

of a forfeiture could always be defended with the

argument that “the Defendant set the price of his own

fine.” The Government’s argument thus devolves merely

to a clever attempt to sidestep the constitutional

requirement that fines imposed by the Government not

be “excessive.”

The constitutional demands of the Excessive Fines

Clause cannot be so easily shrugged off, however. To

accept the Government’s argument would invite the very

governmental abuse that the framers of the Eighth

Amendment sought to prevent. See Browning-Ferris

Indus. v. Kelco Disposal, Inc., 492 U.S. 257, 262-68

(1989) (reviewing the historical pedigree of the Excessive

Fines Clause). Furthermore, it would run counter to this

Court’s admonitions regarding the tendency of

Government to abuse its forfeiture authority and the

indispensable role of judicial review in correcting such

abuse.

“Forfeiture provisions are powerful weapons in the

war on crime; like any such weapons, their impact can

be devastating when used unjustly.” Caplin & Drysdale,

Chartered v. United States, 491 U.S. 617, 634 (1989).

Prevention of the unjust imposition of forfeiture is to

be found, the Court has said, not in eliminating forfeiture

as a law enforcement tool, but in judicial review. See

id. at 635. Moreover, such review must be especially

searching, given the Government’s self-interest in

imposing fines.

There is good reason to be concerned that fines,

uniquely of all punishments, will be imposed in a

measure out of accord with the penal goals of

Mea

retribution or deterrence. Imprisonment, corporal

punishment and even capital punishment cost a State

money; fines are a source of revenue... .. It makes

more sense to scrutinize governmental action more

closely when the State stands to benefit.”

Harmelin v. Michigan, 501 U.S. 957, 979 n.9 (1991)

(Scalia, J., plurality opinion).

For these reasons, the Court should reject the

Government's suggestion that 18 U.S.C. § 982(a)(1)

permits courts to exercise only an eviscerated form of

judicial review.

— =

CONCLUSION

The judgment of the Ninth Circuit should be

affirmed.

Respectfully «::>mitted,

RONALD D. MAINES

(Counsel of Record)

R. SHAWN GUNNARSON

MAINES & LOEB, PLLC

2300 M Street, N.W.

Suite 900

Washington, D.C. 20037

(202) 223-2817

September 2, 1997