UNITED STATES OF AMERICA :
:
Plaintiff, : No. CR-93-0505-EFL
:
v. :
:
RICHARD TOYFOYA :
CLAIMANTS' MEMORANDUM
:
ON THE RIGHT TO JURY TRIAL
Defendant :
ON SEVERED FORFEITURE COUNTS
I. A CRIMINAL CONVICTION DOES NOT COLLATERALLY ESTOP DEFENDANT FROM HIS RIGHT TO A JURY TRIAL ON THE ISSUE OF WHETHER OR NOT HIS PROPERTY IS FORFEITABLE.
A. A Criminal Defendant is Entitled to a Jury Trial on the Issue of the Forfeitability of Property, under either the Sixth Amendment or by Legislative Enactment.
Unlike the traditional in rem forfeiture proceeding against contraband or articles put to use in criminal activities, see, e.g., 21 U.S.C. Sec. 881 (1976), criminal forfeiture proceedings under Section 848(a)(2) are in personam. It follows that under the Sixth Amendment, a criminal defendant is entitled to a jury trial on the issue whether a particular asset is forfeitable. Accordingly, Rule 31 of the Federal Rules of Criminal Procedure provides, "[i]f the indictment or the information alleges that an interest or property is subject to criminal forfeiture, a special verdict shall be returned as to the extent of the interest or property subject to forfeiture, if any." Fed.R.Crim.P. 31(e). U.S. v. Garrett, 727 F.2d 1003, 1008 (11th Circuit 1984).
The Seventh Circuit questioned, without deciding, whether or not a criminal defendant had a constitutional right to a jury trial on forfeiture issues. U.S. v. Robinson, 8 F.3d 418 (7th Cir. 1993) It did, however, conclude that defendant had a statutory right to a jury determination of which assets were subject to forfeiture. Id. at 420.
Defendant has a legislatively created right to have a jury determine which assets he owns and which of those were used to facilitate or promote criminal activity under Federal Rule of Criminal Procedure 31(e). F.R.Crim.P. 31(a) provides:
Criminal Forfeiture. If the indictment or the information alleges that an interest or property is subject to criminal forfeiture, a special verdict shall be returned as to the extent of the interest or property subject to forfeiture, if any.
A special verdict "is a statement by the jury of the facts it has found...." BLACK'S LAW DICTIONARY 1399 (5th ed. 1979). Thus, the language of the legislatively approved criminal rule provides the basis for a right to a jury determination on which of the defendant's assets are subject to forfeiture.
According to the 7th Circuit, Rule 31(a) applies to criminal forfeitures under the drug control laws as well as RICO.
The Advisory Notes accompanying Rule 31(e) inform us that Congress added this provision in §1972 to provide procedural implementation of the forfeiture provisions of the Organized Crime Control Act of 1970 and the Comprehensive Drug Abuse Prevention and Control Act of 1970. FED.R.CRIM.P. 31(e) advisory committee's notes. The legislative history suggests that Congress intended to reestablish a type of common law criminal forfeiture which entitled the defendant to a special jury finding on which assets may be forfeited. FED.R.CRIM.P. 7 advisory committee's notes. Given the plain language of the rule and the consistent legislative history, we hold that Robinson has a statutory right to have a jury determine which of his assets are subject to criminal forfeiture. Robinson, supra, 8 F.3d at 421.
B. Defendant's criminal conviction does not collaterally estop defendant from presenting the question of whether he used the defendant property to facilitate his crime.
Tofoya's criminal conviction is neither res judicata nor does it collaterally estop him from presenting evidence on the question whether he used the property located at 2888 Leslie Drive, Windsor, CA, to facilitate the crime. See U.S. v. One Residence located at 18755 North Bay Road, supra, 13 F.3d at 1497.(1) In reaching its decision to convict Tofoya of Counts ____, ____ & ____ of the Indictment, the jury did not necessarily decide where the illegal activity occurred. U.S. v. Premises Known As RR#1, Dalton, PA, 14 F.3d 864, 871-72 (3rd Cir. 1994), citing 200 Pennsylvania Ave., 786 F.Supp. at 405 n. 7 ("[T]he location of the drug sale was not a critical and necessary part of the judgment and the issue was not necessarily decided by the [trial] court.")
If there are issues of credibility as to where certain illegal activities occurred or if the government cannot provide proof beyond a reasonable doubt, there would be nothing to connect the property to a violation of the statutes prohibiting the activities under which the defendant is convicted, and therefore Tofoya's property would not be forfeitable. It is up to the reasonable triers of fact to resolve these questions of fact concerning the alleged use of the property for criminal activity. U.S. v. Premises Known as RR#1, Dalton, PA, 14 F.3d 864, 872 (3rd Cir. 1994).
Therefore, to the extent that Tofoya has had no opportunity to attack the government's proof on the specific issue of forfeiture or otherwise present his position that the property was not substantially connected to the illegal activities, the application of collateral estoppel would be erroneous.
II. THE EXCESSIVE FINES CLAUSE OF THE EIGHTH AMENDMENT REQUIRES THIS COURT TO APPLY THE DOCTRINE OF PROPORTIONALITY TO CRIMINAL FORFEITURES.
A. The Supreme Court Has Held That the Eighth Amendment's Excessive Fines Clause applies to Civil and Criminal Forfeiture Proceedings.
In U.S. v. Austin, 113 S.Ct. 2801 (1993), the Supreme Court, J. Blackmun, held that the 8th Amendment's Excessive Fines Clause(2) applied to forfeiture proceedings, whether civil or criminal. It cited with approval the 8th Circuit's observation that the principle of proportionality should be applied in those actions that "result in harsh penalties" where, as here, the government was "exacting too high a penalty in relation to the offense committed." U.S. v. One Parcel of Property 964 F.2d 814, 817-818 (8th Cir. 1992). The purpose of the excessive fines clause is to limit the government's power to extract payments as punishment for an offense. See U.S. v.Real Property located at 6625 Zumirez Drive, Malibu, CA,, 845 F.Supp. 725, 731 (C.D. Calif. 1994).
A proportionality analysis requires a fact-specific evaluation of all of the circumstances of the defendant's criminal conduct. U.S. v. Myers, 21 F.3d 826 (8th Cir. 1994). The Austin Court, however, declined to establish a test for determining whether a forfeiture is excessive, and left it to the lower courts to consider these matters in the first instance. Austin, supra, 113 S.Ct. at 2810.
B. The Recent Decision of A Federal Court sitting in California Establishes a Test for Determining Whether Forfeitures Violate the Eighth Amendment's Prohibition against Excessive Punishments.
In U.S. v. Real Property located at 6625 Zumirez Drive, Malibu, CA,, 845 F.Supp. 725 (C.D. Calif. 1994)(hereafter "Zumirez"), the court held that the forfeiture(3) of claimant's home under Comprehensive Crime Control Act 21 U.S.C. §881 and FIRREA, based on his son's possession and sale of cocaine in the home, would violate 8th Amendment prohibition against excessive punishments.
The federal court set forth a multi-factor test for determining whether a forfeiture violated the Excessive Fines Clause, with no one factor being dispositive:
Each factor was explained in detail and then applied to the particular facts of the case.
1. Weighing the Gravity of the Offense Against the Harshness of the Penalty.
The Zumirez court also addressed the government's reliance on the legal fiction that the property itself is somehow "guilty" of an offense. It claimed that a technical, legal focus on property as the culprit leads to very harsh results, especially where the owner is acquitted of the crime underlying the forfeiture. Id. at 736. Furthermore, even where a defendant is found guilty, as in Austin, the Supreme Court's remand implies that forfeiture of the claimant's property could be excessive in spite of the claimant's criminal activity. Id.
b. Harshness of the Penalty
The Eighth Amendment's prohibition against disproportionate punishments warrants a careful balancing of the punishment and the crime in order to avoid devastating impacts to a homeowner and his dependents. See U.S. v. Robinson, 721 F.Supp. 1541, 1543 (D.R.I. 1989). To determine if a penalty is excessiveness, the fact finders must consider the total penalty, including the forfeiture plus any incarceration, fines or probation imposed by the court. U.S. v. Busher, 817 F.2d 1409, 1415, fnt. 10 (9th Circuit 1987); U.S. v. Littlefield, 821 F.2d 1365 (9th Cir. 1987).
Under the second part of the first prong of the test the Zumirez court considered both the monetary value of the property forfeited and the intangible value of the type of property involved. See also U.S. v. Busher, 817 F.2d 1409, 1416 fnt. 12 (9th Cir. 1987)[in which the court notes that "monetary penalties that threaten defendant's economic viability" may be considered].
Because the claimant's home was involved in Zumirez, the court noted that the value of "security and privacy of the home and those who take shelter within it" had been sanctified and "embedded in our traditions since the origins of the Republic." Zumirez, citing U.S. v. James Daniel Good Real Property 114 S.Ct. 492, 505, 126 L.Ed.2d 490 (1993).
In U.S. v. Robinson, 721 F.Supp. 1541 (D.R.I. 1989), the court held that the forfeiture of defendant's apartment and her federal assistance payments, which were the only means by which the defendant could provide shelter for her children, was disproportionately severe to the offense.
Because no drugs were stored in the apartment, the police who bought drugs from her came to her apartment and were not solicited by her, there was no indication that she sold drugs on any other occasion; and forfeiture would be sentence to homelessness, the court concluded that such forfeiture would be, in fact, devastating. Id. at 1544.
Those jurisdictions that have considered the matter have placed great emphasis on the facts that the property was a residence and the effect of forfeiture on innocent occupants of the residence, including children. See U. S. v. Parcel located at 9638 Chicago Heights, St. Louis, MO, ___ F.3d ___, 1994 WL 259428, No. 93-3350, Eighth Circuit, decided June 15, 1994, pgs. 2, 3
As in the Zumirez and Robinson cases, here the government seeks forfeiture of the family home and a real loss to Tofoya and his 7 dependents will be sustained by such penalty. Forfeiture would not only permanently and completely derive Tofoya of all the rights of ownership in the home he has maintained over the years, but also operates to evict him and his family from it. Tofoya's "right to maintain control over his home, and to be free from governmental interference, is a private interest of historic and continuing importance." James Daniel Good, supra, 114 S.Ct. at 501.
On balance, a comparison of the gravity of the offense with the harshness of the penalty weighs in favor of Tofoya's position that forfeiture violates the excessive fines clause.
2. Was the property an integral part of the commission of the crime?
The second prong of this analysis focuses on the relationship between the property and the alleged offense or the culpability of the property. It is based on the legal fiction that "the thing is primarily considered the offender." While the Austin majority did not rule out the possibility that the connection between the property and the offense may be relevant, it declined follow J. Scalia's argument that the relationship test should be the sole consideration in an excessiveness analysis. Austin, supra, 114 S.Ct. at 515, n.2. However, the degree to which the property or enterprise in question is tainted by the criminal conduct should be considered as but one factor for the fact-finders deliberations. See U.S. v. Busher, 817 F.2d 1409 (9th Cir. 1987).
Clearly, there is nothing inherently unlawful about possessing a house. "The issue is whether the house and the criminal activities are sufficiently interrelated to find the property tainted by unlawful use and hence forfeitable." Zumirez, supra, 845 F.Supp. at 737.
In Zumirez, the son's sale of drugs from his fathers house was insufficient to establish a relationship between the crime and the property - for the property to be the site of the illegal activity, without more, does not render the property an integral part of the activity. "Unlike cases in which the forfeited property is integral to the commission of the crime, forfeiture of the defendant property in this case does not rid society of the instrumentality of the crime or eliminate the resources of any criminal enterprise." Id. at 737
In the context of criminal forfeitures, as here, the fact-finders should consider the fact that the property is not considered "guilty" but is being forfeited due to its alleged facilitation in the commission of the various offenses charged against Tofoya. Because Tofoya's property was not an "integral" part of, or used to facilitate, each and every offense alleged in the indictment, this factor should be considered consistent with the third Zumirez prong of the excessiveness analysis, below.
3. Was the criminal activity involving the defendant property extensive in terms of time and or spatial use?
Next, "the Court looks not only at whether the defendant property was an integral part of the criminal activity, but whether the defendant property played an extensive or pervasive role in the commission of the crime." Zumirez, supra, 845 F.Supp. at 734. Under Austin, the Supreme Court directed district courts to "consider the extent and duration" of a defendant's criminal activities and involvement in the crime. U.S. v. Alexander, 1994 WL 328566, No. 90-5417, Eighth Cir., decided July 12, 1994, p.5
The court also considers the extent that the property facilitated drug use and sales. The government in Zumirez presented sparse evidence to establish the time frame over which any drug activity occurred. It relied on hearsay evidence of observing the claimant selling cocaine from the property over a 10 day period and the testimony of a former tenant claiming that the homeowner sold narcotics from '84 - '87. This evidence was found to be unreliable because the claimant had no opportunity to cross-examine the witness about these forfeiture issues at his state criminal trial.
Additionally, fact finders should also consider the spatial use of the property. In Zumirez, drug paraphernalia and narcotics were found in 5 bedrooms, a shed, and the garden, which the court concluded provided the "strongest evidence of a spatially extensive use of property for illegal activities" and "substantially weighs in support of forfeiting the defendant property." Id. at 738.
However where, as here, there remain unaddressed questions regarding the extent to which Tofoya's property was used in relation to the entire criminal enterprise and what, if any, monetary benefit Tofoya derived from the use of his property or the criminal activities, this factor should be submitted to a jury for consideration. See United States v. Busher, 817 F.2d 1409, 1415 (9th Cir.1987) [Where the dollar amount of fraudulent conduct constituted but a small fraction of the legitimate business of the enterprise, the court found a potential prima facie showing of excessive forfeiture]; and [The nexus between the portion of the property actually used in the criminal enterprise and the remainder of the property may also be considered]. Littlefield, supra, 821 F. 2d at 1368; U.S. v. One Single Family Residence located at 18755 North Bay Road, 13 F.3d 1494, 1498 (11th Cir. 1994)[.... The legislative history of §1955 shows that it was not intended to apply to gambling that is sporadic or of insignificant monetary proportions][emphasis mine].
C. Other Jurisdictions have Endorsed Factors Which Are Also Pertinent To An Excessiveness Deliberation in This Case.
1. Solem Factors
Although the Zumirez court rejected the approached taken in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L:.Ed. 2d 637 (1983), and it has since been overruled, several jurisdictions have found direction in formulating an Eighth Amendment analysis. See U.S. v. Premises Known As RR#1, Dalton, PA, 14 F.3d 864, 873 (3rd Cir. 1994). Under Solem, the court must engage in a proportionality analysis, guided by the following criteria: (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed in the same jurisdiction for similar crimes; and (iii) the sentences imposed in other jurisdictions for the commission of the same crime. Id. at 290-92.
The Zumirez court argued that these factors evaluated the Cruel and Unusual Punishments clause, not the Excessive Fines clause of the Eighth Amendment and noted that it was impossible to compare the value of property subject to a forfeiture based on a criminal act with criminal penalties for that act imposed in the same and other jurisdictions - e.g. compare the maximum fine for conviction of possession of cocaine with one's equity interest in the forfeited property.
2. The personal benefit to defendant and his motive and interest in the enterprise should also be taken into account.
The 3rd Circuit's decision in United States v. Sarbello, 985 F.2d 716 (3rd Cir. 1993) also provides some direction on the proportionality inquiry that is to be applied in analyzing whether a particular fine is excessive. Specifically, it was concerned with whether a criminal RICO forfeiture violated the excessive fines clause of the amendment. Id. at 722-23. It stated:
Neither the Supreme Court in Austin or its companion case Alexander or the 9th Circuit have addressed the question of whether a judge or jury decides if forfeitures are excessive. See U.S. v. Parcel Known as RR#1, Dalton, PA, 14 F.3d 864, 875 (3rd Cir. 1994). However, several courts have held that a claimant is entitled to a jury trial on the issue of whether property is forfeitable, U.S. v. Garrett, 727 F.2d 1003, 1008 (11th Circuit 1984) and U.S. v. Robinson, 8 F.3d 418 (7th Cir. 1993), and so it follows that the related question of whether or not the penalties imposed are excessive should also be a jury question.
Again, in a criminal forfeiture action, either the Sixth Amendment or F.R.Crim.P. 31(a) provides for a jury trial. [See reasoning above in Section I.A of this Memorandum]. In fact, "the infusion of the earthy common sense of a jury might upon occasion mitigate appropriately the harsh impact sometimes characteristic" in these procedures. U.S. v. One 1976 Mercedes Benz 280S, 618 F.2d 453,469 (7th Cir. 1980). However, in the alternative, considering the present uncertainty of the law and in the interest of judicial efficiency, defendant Tofoya would be willing to submit the question to a jury on a special interrogatory and then alternately treat the answer as non-binding and permit the court to decide the excessiveness question itself. [As proposed in U.S. v. Premises Known As RR#1, Dalton, PA, 14 F.3d 864, 871-72 (3rd Cir. 1994)].
FOOTNOTES:
1. The Court held that factual determinations made in the husband's criminal case did not foreclose the wife from presenting evidence in the subsequent forfeiture of the couple's home.
2. The Eighth Amendment states: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
3. Although Zumirez was a civil forfeiture, these factors are equally applicable to an excessiveness analysis in a criminal forfeiture situation, based on the Supreme Court's opinion in Austin.