Opinion
No. 5-954 / 05-0217
Filed January 19, 2006
Appeal from the Iowa District Court for Polk County, Joel D. Novak, Judge.
The State appeals from the district court's adverse ruling in an in rem forfeiture action. AFFIRMED.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, John P. Sarcone, County Attorney, and Robert DiBlasi, Assistant County Attorney, for appellant.
Eric K. Parrish of Parrish, Kruidenier, Moss, Dunn, Boles, Gribble Cook L.L.P., Des Moines, for appellee.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
The State appeals from the district court's refusal to grant in rem forfeiture of Luis Flores's personal property. We affirm.
I. Background Facts and Proceedings.
The forfeiture proceedings stem from Flores's participation in an attempted marijuana transaction, where Flores acted as look-out for his cousin, Felix Calderon. In July of 2004, narcotics officers with the Des Moines police had intercepted a shipment of marijuana at Overnight Delivery, and had initiated a "sting" operation to apprehend the shipment's intended recipient. Officers conducting surveillance of Overnight Delivery on the evening Calderon attempted to receive the shipment observed Flores driving his 2003 white Dodge pick-up through several adjacent parking lots while talking on a cell phone. Officers detained Flores and informed him that they had probable cause to arrest him for assisting Calderon in the attempted drug transaction. Thereafter, Flores agreed to cooperate with the officers. Flores admitted he knew the shipment at Overnight Delivery contained marijuana and porcelain and that he had agreed to conduct counter-surveillance of the surroundings on Calderon's request. Flores also admitted that Calderon had offered to compensate Flores for his assistance if the transaction proceeded smoothly.
The trial information and minutes of testimony constituting the factual basis for Flores's plea indicate that Flores had, on at least one previous occasion, assisted Calderon's receipt of a drug shipment.
Following Flores's arrest, officers seized the truck Flores had been driving. Officers also obtained and executed a search warrant for Flores's residence. During the search, officers seized a toolbox containing $2,637 in cash and $75 in gold coins, as well as a .380 pistol from the residence. No illicit drugs or paraphernalia were found in the residence or in Flores's vehicle. On August 11, 2004, the State initiated civil forfeiture proceedings against the cash, gold coins, pistol, and the truck. Although he pled guilty on November 8, 2004, to possession of a controlled substance with intent to deliver, Flores resisted the State's forfeiture claim.
Flores denied having received any compensation for his assistance during either the present controlled delivery or the previous transaction. Flores maintained that the cash found in the toolbox consisted of withdrawals from his 401K plan and that he kept the funds available for emergencies. The record establishes that Flores has been employed full-time for several years.
After a forfeiture hearing, the district court concluded the State failed to meet its burden of establishing a substantial connection between the criminal offense and (1) the $2,637 in cash, (2) the $75 in gold coins, and (3) the pistol, and the items seized were therefore not forfeitable under Iowa Code chapter 809A (2003). Although the district court found the truck was subject to forfeiture under section 809A.13(7) because a substantial connection was proved between the truck and the criminal offense, the court found forfeiture of the $30,000 truck would be "grossly disproportional" to Flores's criminal culpability and would therefore constitute an excessive fine in violation of Flores's constitutional rights. The State appeals from the district court's denial of its in rem forfeiture claim, contending the court erred in concluding the forfeiture of the truck under chapter 809A would constitute an unconstitutionally excessive fine under the Eighth Amendment.
II. Scope and Standard of Review.
We review de novo the constitutionality of a civil forfeiture of property with an established connection with criminal activity. In re Property Seized from Terrell, 639 N.W.2d 18, 21 (Iowa 2002).
III. Discussion.
"The Eighth Amendment to the United States Constitution provides that `[e]xcessive bail should not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.'" Terrell, 639 N.W.2d at 20 (quoting U.S. Const. amend. VIII). Civil forfeiture statutes may violate the Excessive Fines Clause because, while such statutes are said to be remedial, they are also intended to deter and punish unlawful activity. Austin v. United States, 509 U.S. 602, 622, 113 S.Ct. 2801, 2812, 125 L.Ed.2d 488, 505-06 (1993). To establish a constitutionally excessive fine, Flores has the burden of demonstrating the "punishment" occasioned by the forfeiture bears a grossly disproportional relationship with the gravity of the offense and Flores's culpability therein. United States v. Bajakajian, 524 U.S. 321, 334, 118 S.Ct. 2028, 2036, 141 L.Ed.2d 314, 329 (1998). This relationship, however, need not be plumbed with mathematical exactitude. In re Property Seized from Chiodo, 555 N.W.2d 412, 416 (Iowa 1996).
We apply a multi-factor balancing test in our assessment of whether the contemplated forfeiture is grossly disproportionate. Terrell, 639 N.W.2d at 21. These factors include (1) the extent and duration of the criminal conduct, (2) the gravity of the offense weighed against the severity of the criminal sanction, and (3) the value of the property forfeited. Id. "Other helpful inquiries might include an assessment of the personal benefit reaped by the defendant, the defendant's motive and culpability and, of course, the extent that the defendant's interest and the enterprise itself are tainted by criminal conduct." United States v. Bieri, 68 F.3d 232, 236 (8th Cir. 1995) (citations omitted).
A. Extent and Duration of the Criminal Conduct.
After carefully reviewing the record, we find Flores was minimally involved with the criminal enterprise set into motion by his cousin, Calderon. The State has adduced no evidence suggesting Flores was involved in the marijuana's shipment or the plan for subsequent distribution of the contraband. We note, as the district court did below, that no drugs or paraphernalia were seized from either Flores's truck or residence, and the record is otherwise devoid of evidence suggesting Flores was either using or dealing marijuana or any other illicit drug.
While Flores's counter-surveillance was intended to facilitate Calderon's retrieval of the marijuana shipment and conceal that part of the criminal enterprise, such participation pales in comparison to the activities of Calderon, who planned the shipment and who had personally intended to retrieve and distribute its contents. Furthermore, even if we take at face value the minutes of testimony offered to support a factual basis for Flores's guilty plea, which suggest Flores acted as "look-out" for Calderon on an earlier occasion, our assessment of Flores's minor role assisting the criminal enterprise that provoked the State's forfeiture action in this case remains unchanged.
At the forfeiture hearing, Flores vigorously denied any such previous participation in Calderon's marijuana importation schemes.
B. Gravity of the Offense versus the Severity of the Criminal Sanction.
We must next determine whether the proposed forfeiture, when added to the criminal sentence imposed against Flores, represents an excessive sanction in light of the harm caused by the criminal activity involving the property to be forfeited. See Bieri, 68 F.3d at 237 (noting that the wholesale value of marijuana involved in the conspiracy totaled $233,750, and finding no disproportionality existed in forfeiting the home because the conspirators received prison sentences at the bottom of the applicable sentencing guidelines and were assessed no fines).
We find it somewhat difficult to compare the gravity of Flores's offense with the severity of the criminal sanction imposed following his guilty plea. The record does not disclose the sentence imposed in the criminal case. We note in this regard that our supreme court in Terrell questioned the soundness of including this factor in the proportionality analysis, stating that if
The district court's written acceptance of Flores's guilty plea suggests that both the State and Flores were expected to recommend a deferred judgment.
the actual punitive sanction applied is the basis for the disproportionality analysis, a defendant who received only probation could not lose any property to forfeiture because any value attached to the property would be disproportionate to the criminal sanction. It would also be poor public policy because a prosecutor who has an eye toward possible forfeiture would naturally press for the imposition of the maximum punishment in order to make a forfeiture less subject to a claim of disproportionality. Further, as a criminal conviction is not a prerequisite to a forfeiture action, in some cases there may not even be a sentence or other sanction to consider.
Terrell, 639 N.W.2d at 21-22.
Notwithstanding our uncertainty about the actual sentence imposed against Flores, Terrell instructs us that "the comparison in a disproportionality analysis must be made between the value of the property to be forfeited and the severity of the offense as viewed by the legislature, not the actual sanction imposed." Id. at 21.
C. Maximum Sanction versus Value of Property Subject to Forfeiture.
Noting that the maximum fines authorized for the two offenses for which Terrell was found guilty exceeded Terrell's own valuation of the property subject to forfeiture, the Terrell court found the forfeiture did not constitute an excessive fine. Id. at 22. But such parity does not exist in the case before this court as between the value of Flores's property and the maximum sentence that could have been imposed. The crime to which Flores pled guilty is a class D felony, and the maximum sentence authorized by the legislature is five years imprisonment and a fine of $7,500. See Iowa Code §§ 124.401(1)(d), 902.9(5). Clearly the legislature characterizes as serious Flores's criminal conduct given the nature of the sanction authorized. However, as was noted by the district court, forfeiture of the $30,000 truck would result in an economic loss to Flores of four times the maximum fine authorized by the legislature.
D. Other Factors.
We now turn to the other factors discussed in Terrell as bearing on our proportionality analysis. The minutes of testimony suggest that on the previous occasion in which Flores was alleged to have conducted counter-surveillance, his cousin Calderon offered to compensate Flores for his participation. Flores, however, refused such compensation.
At the forfeiture hearing, while Flores admitted that Calderon had again offered to compensate him for his participation in the controlled delivery devised by narcotics officers, Flores testified convincingly that the source of the cash found at his residence was not Calderon, but rather proceeds from his legitimate employment that he kept on hand for an emergency. The district court found that a substantial connection between the criminal activity and the cash seized could not be established by the State, and thus the cash could not be forfeited pursuant to chapter 809A.
Finding no evidence in the record to controvert Flores's assertion that he was not paid for his participation, we find he had no substantial economic interest in the criminal enterprise. While this fact does not excuse his criminal conduct, it does support Flores's claim that he played a comparatively minor role in Calderon's scheme to import and distribute drugs.
E. Conclusion.
After conducting de novo review of the evidence bearing upon the relevant factors, we find Flores met his burden to demonstrate the "punishment" occasioned by the proposed forfeiture would bear a grossly disproportional relationship with the gravity of his offense and the extent of his culpability. Accordingly, we are persuaded that the forfeiture of the $30,000 truck would be "more criminal than the crime." United States v. Sarbello, 985 F.2d 716, 724 (3rd Cir. 1993). We therefore affirm the district court's denial of the State's claim on the grounds that forfeiture of Flores's vehicle would constitute an excessive fine under the Eighth Amendment.