December 21, 2001
O R D E R
Following a five-day jury trial in April 1997, Defendants were convicted of three counts charging them with engaging in conduct involving the sexual exploitation of minors. In addition, the jury found that Defendants' house, located at 543 Thomaston Street in Barnesville, Georgia, as well as certain personal property, was subject to criminal forfeiture under the Child Protection Act of 1984. See 18 U.S.C.A. § 2253 (West 2000). Pursuant to that finding, the Court signed a Final Order of Forfeiture on September 7, 2001, indicating that the United States had provided notice of the forfeiture as required by law and that the claims of the only third-parties asserting an interest in Defendants' house have been satisfied. Before the Court is Defendants' Motion to Vacate Order of Forfeiture in which they argue that the forfeiture of their house violates the Excessive Fines Clause and the Cruel and Unusual Punishments Clause of the Eighth Amendment because the house was not sufficiently related to the offenses committed (tab #160). Defendants further argue, in their First Amendment to Their Motion to Vacate Order of Forfeiture, that the forfeiture of their house is unconstitutionally excessive because they have continued to pay the mortgage and property taxes, maintain insurance, and make repairs since their convictions. A hearing on Defendants' motion was held on December 17, 2001.
On October 3, 2000, Defendant Carruthers filed a motion to determine his competency prior to the Court issuing any further orders, including the Final Order of Forfeiture (tab #150). Because Defendants' counsel did not raise the issue of Defendant Carruthers' competency at the December 17 hearing, the Court assumes that the motion is MOOT.
The Eighth Amendment provides, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. Although the Court's research has uncovered very little precedent concerning the criminal forfeiture provision of the Child Protection Act, some unassailable Eighth Amendment principles have emerged from recent cases decided by the Supreme Court. First, the Cruel and Unusual Punishments Clause "is concerned with matters such as the duration or conditions of confinement," whereas "`[t]he Excessive Fines Clause limits the government's power to extract payments, whether in cash or in kind, as punishment for some offense.'" Alexander v. United States , 509 U.S. 544, 558 (1993) (quoting Austin v. United States , 509 U.S. 602, 609-10 (1993)). As a threshold matter, then, the Cruel and Unusual Punishments Clause simply does not apply in this case. Second, if an in personam criminal forfeiture constitutes a "fine" for purposes of the Eighth Amendment, it must be analyzed according to the standards applicable to the Excessive Fines Clause. See id. at 558-59. Thus, the Court must first determine whether the forfeiture at issue in this case constitutes a "fine" implicating the Excessive Fines Clause; if so, the Court must proceed to determine whether it is "excessive."
The Supreme Court has recognized that "at the time the Constitution was adopted, `the word "fine" was understood to mean a payment to a sovereign as punishment for some offense.'" United States v. Bajakajian , 524 U.S. 321, 327 (1998) (quoting Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc ., 492 U.S. 257, 265 (1989)). "Forfeitures-payments in kind-are thus `fines' if they constitute punishment for an offense." Id. at 328. Like the Supreme Court in Bajakajian , the Court has no trouble concluding that the forfeiture at issue in this case constitutes punishment for violating the child pornography laws. The Child Protection Act provides that a person convicted of a child-pornography offense shall forfeit his interest in, among other things, "any property, real or personal, used or intended to be used to commit or to promote the commission of such offense," such as a house. 18 U.S.C.A. § 2253(a)(3). Furthermore, if the jury determines beyond a reasonable doubt that the property is subject to forfeiture, "[t]he court shall order forfeiture." 28 U.S.C.A. § 2253(e) (emphasis added). To borrow the Supreme Court's reasoning from Bajakajian , "[t]he forfeiture is thus imposed at the culmination of a criminal proceeding and requires conviction of an underlying felony, and it cannot be imposed upon an innocent owner of [property that was used to commit a child-pornography offense], but only upon a person who has himself been convicted of a [child-pornography] violation." 524 U.S. at 328. Because the forfeiture required by § 2253 constitutes punishment for a child-pornography offense, it is a fine whose imposition is limited by the Excessive Fines Clause. This conclusion is reinforced by the fact that in personam criminal forfeitures "have historically been treated as punitive." Id. at 332.
Turning to whether the forfeiture at issue in this case is "excessive," the Court notes that "[t]he touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish." Id. at 334. The standard developed by the Supreme Court for evaluating the constitutionality of an in personam criminal forfeiture is that "a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." Id. Applying this standard, the Court finds that the forfeiture of Defendants' house is not unconstitutionally excessive. The gravity of a child-pornography offense is self-evident and need not be elaborated here. Suffice it to say that when Congress enacted the Child Protection Act, it observed that "[t]he creation and proliferation of child pornography is no less than a national tragedy." H.R. Rep. No. 98-536, at 1 (1983), reprinted in 1984 U.S.C.C.A.N. 492, 492; see also New York v. Ferber , 458 U.S. 747, 756-64 (1982) (detailing the reasons why "the States are entitled to greater leeway in the regulation of pornographic depictions of children"); United States v. Ownby , 926 F. Supp. 558, 565 (W.D.Va. 1996) (noting that "few crimes cut to the core of American sensibilities as does the crime of sexually exploiting children"); United States v. 1181 Waldorf Drive , 900 F. Supp. 1167, 1173 (E.D.Mo. 1995) ("The Court has seen the collection of pictures and film which Kenneth Wilderman stored in his house and the Court cannot conceive of crimes so ruinous and rank. Kenneth Wilderman's crimes exploited the most vulnerable members of society in the basest of ways.").
The gravity of a child-pornography offense itself, however, does not authorize an unlimited forfeiture. See Bajakajian , 524 U.S. at 337-40 (holding that, under the circumstances, forfeiture of the full amount authorized by statute would violate the Excessive Fines Clause). Thus, the Court still must assess whether the forfeiture of Defendants' house is grossly disproportional in relation to their offenses. Although it is difficult to place a monetary value on the gravity of a crime such that it can be proportioned to the value of the forfeited property, the Court may look to the fines prescribed by Congress and the United States Sentencing Commission for guidance. See United States v. 817 N.E. 29th Drive , 175 F.3d 1304, 1309 (11th Cir. 1999). According to the Eleventh Circuit, "if the value of forfeited property is within the range of fines prescribed by Congress, a strong presumption arises that the forfeiture is constitutional." Id. Furthermore, "if the value of the property forfeited is within or near the permissible range of fines under the sentencing guidelines, the forfeiture almost certainly is not excessive." Id. at 1310. Here, the maximum statutory fine for each count of which Defendants were convicted was $250,000, and the range of fines prescribed by the Sentencing Guidelines was $15,000 to $150,000. The fair market value of Defendants' house at the time of their sentencing in 1998 was $123,788, and their mortgage balance was $58,537, giving them $65,251 in equity. The current figures have not been provided to the Court, but Defendants claim in their First Amendment to Their Motion to Vacate Order of Forfeiture that the payoff amount as of September 21, 2001, was $11,676.92. Presumably, Defendants' equity in the house has increased since they were sentenced, but the precise amount is immaterial because the statute and the Sentencing Guidelines agree that the forfeiture of the house is proportional to Defendants' offenses, even assuming the most generous figure possible for Defendants' equity. See United States v. 10380 S.W. 28th St ., 214 F.3d 1291, 1295 (11th Cir. 2000) (per curiam) (holding that the forfeiture was not unconstitutional because it was within the range of fines prescribed by the statute and the Sentencing Guidelines); United States v. Dicter , 198 F.3d 1284, 1292 (11th Cir. 1999) (same). Accordingly, the forfeiture of Defendants' house does not violate the Excessive Fines Clause of the Eighth Amendment because it is not grossly disproportional to the gravity of Defendants' offenses, even when the other aspects of their punishment are considered. See Ownby , 926 F. Supp. at 562-66 (holding, in a case in which the defendant was convicted of a child-pornography offense, that forfeiture of a residence was not unconstitutional); 1181 Waldorf Drive , 900 F. Supp. at 1173 ("The loss of his home weighs little compared to the harmful reach of his moral depravity. . . . Given the close association between his house and his criminal activities, forfeiture of his entire interest in the house is not excessive.").
The Court gives no credence to Defendants' argument that the forfeiture of their house is unconstitutional because they have continued to pay the mortgage and property taxes, maintain insurance, and make repairs since they were convicted. As explained above, the forfeiture is constitutional even if the money expended by Defendants resulted in increased equity. Moreover, Defendants could not have reasonably expected to live in the house without paying for those things. The Occupancy and Indemnity Agreement that they eventually signed demonstrates this.
For the foregoing reasons, Defendants' motion is DENIED.
Defendants also argue that the Court's Final Order of Forfeiture is void on its face because it mistakenly indicates that it was signed on September 7, 2000, rather than September 7, 2001. Considering that the Final Order of Forfeiture was delivered by the United States Attorney to the Clerk's Office in Macon on September 25, 2000, it quite obviously could not have been signed on September 7, 2000. Moreover, because the Final Order of Forfeiture was prepared by the United States Attorney in 2000, it is not surprising that the date line included 2000 as the year of signature. Thus, because it is clear that the order was signed on September 7, 2001, not on September 7, 2000, the Court will not entertain Defendants' (dubious) argument any further. The Final Order of Forfeiture is hereby corrected to reflect the correct signature date of September 7, 2001. See Fed.R.Crim.P. 36.