United States v. Dodge Caravan Grand Se/sport Van, Vin 1b4gp44g2yb7884560 Erin Clemons, Claimant-Appellant

man- address the specifically corporation America, UNITED STATES may compensation officer

ner in which Plaintiff-Appellee, Incorporation fixed. Articles Restated Six, Inc., § of Little 8.6. laws,

Interpreting these tribal the tribal DODGE CARAVAN GRAND SE/SPORT appeals court determined that benefit VAN, 1B4GP44G2YB7884560; # VIN plans increasing that have the effect of Defendant, adopted must be compensation LSI officer Clemons, Claimant-Appellant. Erin In re:

by the LSI board of directors. Six, Inc. Retirement Trust Under Little No. 03-1925. (SMS(D)C Plans, Ct.App. No. *6 Appeals, United States Court of 2001). above, Oct. As discussed Eighth Circuit. interpretation of tribal must defer this Turning the facts of the law. Submitted: Feb. appeals tribal court then found that “there Filed: Oct. is no evidence in the record that the LSI adopted plans Board these the trust Community

conformance with law.” Id. at contrary, in early

*5. To the the new “passed

LSI board directors resolu- specifically stating

tion ... it had adopted approved any

never of the ben- plans dispute.”

efit involved this Id. at Accordingly, appeals

*4. the tribal plans

found that benefit were never creat- liability

ed and thus ERISA could not reviewing

arise. After the record before

us, say we cannot that the appeals tribal

court committed clear error in making findings.

these defer to We therefore that, appeals court’s

tribal determination law,

as a matter of tribal no ar- benefit

rangement was created.

Because as a matter tribal law no exists, plan nothing

benefit there is here to apply.

which ERISA could For the rea- stated,

sons we reverse the order of the

District Court and remand the case with

instructions that it be dismissed. MELLOY, SMITH,

Before COLLOTON, Judges. Circuit

MELLOY, Judge. Circuit Clemons, claimant-appellant, The Erin appeals the district court’s order forfei- SE, Dodge Sport ture of her 2000 Caravan guilty which followed her plea state “possession court to of a controlled sub- theft, fraud, misrepresentation, stance See forgery, deception, subterfuge.” 418(l)(c). argues Neb.Rev.Stat. She 28— that the forfeiture order is unconstitution- ally excessive. For the reasons stated be- low, we reverse and remand.

I. The district court ordered.forfeiture Ms. Clemons’s minivan at the conclusion of non-jury a trial. The trial was based on facts, which parties’ stipulated the dis- adopted making findings. trict court its is, likewise, Our recitation of the facts stipulated drawn from the facts submitted to the district court. pre- addicted to the

Ms. Clemons was killer, pain hydrocodone. To scription addiction, support her Ms. Clemons called phony prescriptions pharmacies, us- Gibbs,” ing the aliases “Katie “Sara Fos- ter,” Clemons,” Gleason,” “Kelly “Thomas January In and “James McGill.” police suspect- contacted the pharmacist pharma- of fraud. The Ms. Clemons description of gave police physical cist proper- and of the defendant Ms. Clemons up the ty, pick which Ms. Clemons used to April phar- In another prescription. contact- macist from different fraud. On that police suspected ed about Omaha, Dougherty, argued, Duane C. occasion, picked up pre- Ms. Clemons (Matthew brief), McBride, on the NE L. scription using pharmacy’s appellant. for window, identified the pharmacist Svoboda, police customer as Ms. Clemons Nancy argued, A. Asst. U.S. NE, described the defen- Omaha, photograph. She also Atty., appellee. days; inpatient drug treatment. plate and its license num- dant addition, costs, she was assessed court ber. monitoring, cost of electronic and the cost arrested Ms. April police On testing, totaling of chemical $388.50. obtaining pre- fraudulent Clemons for hydrocodone total value of the tablets Ms. post-Mmmcia made a scriptions. She fraudulently charged Clemons was with indicating that she had police statement to obtaining was between $644.00 hydrocodone pre- four obtained at least $1,127.00. liquid cough also obtained She scriptions by providing doctors with false containing hydrocodone, medication which Only one month after her information. was valued at At the time of its $900.00. arrest, pharmacist po- another contacted seizure, property the defendant was valued in obtaining hy- fraud possible lice about $12,000.00 $14,000.00. between Ms. Police showed prescriptions. drocodone owner, mini- Clemons was its sole and the pharmacist photograph of Ms. Clem- family van served as the vehicle for Ms. ons, positively pharmacist identi- and her children. Clemons three person hy- fied her as the who obtained prescription a valid drocodone without In January of the United States of from her on four occasions. brought America in forfeiture action fed- eral court seeking district the forfeiture of pharmacist police Yet another contacted minivan, pursuant Ms. Clemons’s August possible pre- fraudulent about § finding After U.S.C. the de- pharma- out the scriptions. Police staked property fendant “facilitated” Ms. Clem- cy parking lot and witnessed Ms. Clemons transportation, receipt, possession, ons’s driving property. po- the defendant The hydrocodone, concealment of I a Schedule on the scene her driv- lice officer observed substance, controlled the district court up parking her vehicle and down the found that forfeiture of the defendant conducting she was lot aisles and believed property not unconstitutionally exces- After several min- counter-surveillance. sive utes, and ordered forfeiture. Ms. Clemons used the drive-thru Ms. Clemons win- appeals, maintaining that her vehicle did prescription dow to obtain the fraudulent possession hydroco- not facilitate her hydrocodone. While she was in the and, alternatively, done lane, forfeiture con- police arrested her. Po- unconstitutionally stitutes an excessive fine lice seized the defendant at the under the facts of this case. time of the arrest. parties agree prescrip- that all the II.

tions for per- Ms. Clemons obtained were A civil forfeiture action is an in rem reaped monetary sonal use and that she no give proceeding brought by benefit from them. Nor did she government anyone plaintiff against tablets to else. Ms. Clemons re- defendant assert- title, felony ceived three in ing right, Class IV convictions and interest “[a]ll state court for her de- property” [the Nebraska activities has vested in defendant] A felony scribed Class IV under “the upon above. United States commission of the maximum punishable by Nebraska law is act giving rise to forfeiture.” 18 U.S.C. 981(f). 881(a)(4) $10,000.00 five-year § and a maximum Section of the Con- imprisonment. term of Ms. Clemons was trolled Substances Act authorizes the for- thirty-six sentenced to conveyances, including months intensive feiture of air- “[a]ll supervised craft, vehicles, vessels, used, probation; thirty days electron- which are use, ic monitoring; transport, “show cause” time of 180 or are intended for or in thermore, proceeding, in a forfeiture transportation, to facilitate any manner findings district court’s factual sale, or concealment” review the receipt, possession, 881(a)(4). apply This for clear error but de novo stan of narcotics. U.S.C. of review to our consideration of subject to the stan dard provision forfeiture or not those facts render the de in the Asset Forfei whether set forth Civil dards (“CAFRA”), to forfeiture. Act of fendant ture Reform $84, Currency, 615 in U.S. § 983. See United States U.S.C. by a showing something “The Currency, .burden .of Cir.2004) evidence,’ the most (applying ‘preponderance CAFRA’s law, ‘simply brought action un common standard the civil to forfeiture

standards 881(a)(6)). places requires § The Act of fact “to believe 21 that der U.S.C. .trier probable of a fact is more government on the the existence the initial burden may than before find [he] of the evi its nonexistence proving by preponderance party to property is sub favor of the who has burden dence that the defendant 983(c)(1). § persuade [judge] fact’s exis ject to forfeiture. 18 U.S.C. ” ” Prods, Cal., Here, Pipe that Ms. tence.’ Concrete & government contends Inc. v. Laborers Pension Trust vehicle facilitated the commis Constr. Clemons’s for Cal., 602, 2264, 622, 508 drug Accordingly, offense. S. sion her (1993) (alterations in orig 124 L.Ed.2d 539 government to “es requires CAFRA inal) Winship, con In re 397 U.S. that there was a substantial tablish of 25 L.Ed.2d 368 and the S.Ct. nection between (1970) J., 983(c)(3); (Harlan, concurring)). deter § United States fense.” Id. cf. ,Ms. St, N.E., vehicle is mining as 3639-2nd Clemons’s v. Premises Known crime, Minn., substantially drug connected to her Minneapolis, (8th Cir.1989) (Arnold, S., can be used concur evidence “[c]ircumstantial Richard its burden of States to establish prior in forfeiture action United ring) (stating Currency, in U.S. proof.” that “this Court [did] CAFRA’s enactment at 501. past insistence that depart from its connection be there must be a substantial case, we Although this is a close being forfeited and a tween the that Ms. with the district court agree crime.”); States v. drug-related forfeiture, subject minivan is to Clemons’s N.W., Prop. as 1813 15th St. Identified by a government proved has because the D.C., F.Supp. Washington that of the evidence preponderance (D.D.C.1997) case (stating pre-CAFRA substantially connected to her vehicle was “[fjacilitation proven can be estab stipulated facts activity. connection’ between lishing a ‘substantial her vehicle to that Ms. Clemons used show activity being and the illegal pick up fraudulently pharmacies drive forfeited”). hydrocodone. It prescriptions obtained that she evaded de is reasonable to infer “review of a district court’s Our property to by using the defendant fines issue ‘must tection decision on the excessive - hydrocodone tablets analysis procure record upon based window lanes. pharmacies’ the district court.’ finally developed Moreover, Ms. officer who arrested v. One 1970 36.9 Columbia United States Boat, August of 2001 when her vehi Sailing 91 F.3d Cir. Clemons 1996) Alexander, used her was seized believed she cle (quoting United States Cir.1994)). conduct counter-surveillance. Fur- vehicle to 32 F.3d ter, especially the officer observed Ms. Specifically, under these circumstances up pharmacy drive and down the where she used several Clemons aliases obtain lot, for her fraudulent parking park prescriptions. Accordingly, several minutes and we affirm the district park- finding then move her vehicle to a different court’s Ms. Clemons’s van is to forfeiture. spot. must, therefore, We consider whether reversal, In support of Ms. Clemons proved Ms. Clemons that forfeiture of her States, cites Platt v. United 163 F.2d 165 vehicle, warranted, while constitutes an (10th Cir.1947). In that Blanche unconstitutionally excessive fine. See 18 Cooper her to a drove mother’s automobile 983(g)(3) § (placing U.S.C. burden of es pharmacy morphine and obtained tablets tablishing gross proportionality pre personal using “questionable use doc- claimant). ponderance of the evidence on prescriptions.” tor’s Id. at 166. She though Even Congress drafted 21 U.S.C. parked the car outside the 881(a)(4) broadly, because “intended went inside to the tablets. retrieve Id. forfeiture to powerful weapon be a in the store, drug She was arrested outside the drugs,” war on see United States v. government sought 141st forfeiture of Hersh, (2d Corp. by St. her mother’s vehicle. Id. The Court of Cir.1990) 225, (citing S.Rep. No. 98th Appeals for the Tenth Circuit held that the 191-92, Cong., 2nd reprinted Sess. in 1984 forfeiture, subject vehicle was not to how- 3182, Cong. U.S.Code & Admin. News ever, merely because “[i]t means 3374-75), provision subject is to consti of locomotion which [the defendant] protection tutional Eighth under purchase. went to the store to make the Amendment’s Excessive Fines Clause. get Its use enabled her to to the store States, 602, See Austin v. United 509 U.S. quickly more than if she had walked or 604, 2801, 113 S.Ct. 125 L.Ed.2d 488 transportation.” used slower means of (1993); accord One 1970 36.9' Columbia Id. at 167. Boat, (“Civil Sailing 91 F.3d at 1057 forfei Ignoring significant fact that Platt 881(a)(4) ture under is to the was decided before the “innocent owner” limitations of the Excessive Fines developed, defense see Calero-Toledo v. Clause.”) (citing Dep’t Revenue Mont. of of Co., 663, Pearson Leasing Yacht 416 U.S. Ranch, 767, v. Kurth 511 U.S. 114 S.Ct. 688-89, 2080, 94 S.Ct. 40 L.Ed.2d 452 1937, (1994); Austin, 128 L.Ed.2d 767 (1974) (implying innocent owner defense 2801). 604, U.S. at 113 S.Ct. This clause may be in a nearly available case three provides: “Excessive bail shall not be re Platt), easily decades after Platt is distin- ” quired, nor excessive .... imposed fines guishable from Ms. Clemons’s case. Ms. Const, U.S. amend. VIII. simply Clemons did not use her vehicle to pharmacy. drive to the She used it aas “The touchstone of the constitution tool to conduct counter-surveillance. al inquiry under the Excessive Fines addition, circumstantial supports evidence Clause is the principle proportionality: of that inference she used the vehicle to The amount of the forfeiture must bear evade and suspicion by using detection relationship some gravity to the of the pharmacies’ drive-thru lanes to obtain her designed offense that it is punish.” to instance, phony prescriptions. For Bajakajian, is United States v. 524 U.S. probable that likely she was less to be 141 L.Ed.2d 314 (1998). recognized while seated her minivan in a Though Supreme Court has lane than at a coun- punitive held that “a forfeiture violates the (3d Cir.1993)). if it grossly Fines Clause list Excessive This id., and, exhaustive, dicta, of a to the defen- disproportional see we have id., offense,” express- has the Court criticized analysis dant’s an excessive fines ly factors, a test of gross to enunciate declined failed consider “the such as Austin, 509 disproportionality. monetary See property, value of the the extent Instead, at 113 S.Ct. 2801. activity of the criminal associated with Court has chosen leave that determina- property, fact that the property was a .(“Pru- id. residence, tion to the lower courts. See the effect the forfeiture on allow the dence dictates that lower residence, occupants innocent in we. in the question courts to consider that first children, cluding any other factors instance.”). analysis an might require.” excessive fine Prop., United States v. One Parcel Real circuit, apply two-pronged In this Chicago Heights, Located at 9638 St. that first approach requires claimant Louis, Mo., showing prima ‘gross facie “mak[e] 1994); Bieri, (“We see 68 F.3d at 237 States v. Bie disproportionality.’ United the dicta Chicago Heights Cir.1995) conclude ri, F.3d (quot intangible factors, enumerating including 1235). Alexander, 32 “Prelimi character as a property’s residence narily, the initial the defendant has burden the effect on of forfeiture innocent occu showing making prima gross facie children, may pants. relevant disproportionality.” Eighth Amendment analysis some Known Premises Wentworth Ave. cases.”). survey A of case law also illus S., Minneapolis, Hennepin County, factors, trates potentially other relevant (8th Cir.1997) Minn., the Act authorizing such whether forfei omitted). (quotations If the claimant can ture is underlying aimed at the criminal showing, make this the court considers giying forfeiture, act Bajakaji rise to the disproportionality whether the “reaeh[es] an, 524 at the injustice such a level of excessiveness by the wrongdoer’s harm caused criminal is punishment more criminal than the the acts, id. and at S.Ct. the 118 omitted). (quotations crime.” Id. seized, Bieri, of at drugs value see 68 F.3d the “To determine whether facts gross disproportionality, indicate the dis factors, multiple trict court must consider We have also stated that' “‘if the value is including the extent and duration of the of the forfeited within or near conduct, of permissible range the the- the offense fines the weighed against severity sentencing guidelines, the of the crimi forfeiture almost sanction, certainly nal and the value of the is not excessive.’ States United Bieri, Sherman, at 236. forfeited.” 68 F.3d We v. F.3d “ “ 2001), helpful opinion subsequently have also identified in vacated and ‘[o]ther Diaz, quiries an per by as] assessment the reinstated United States v. [such Cir.2002) (en banc) reaped defendant, (quoting sonal benefit the F.3d Drive, and, N.E. culpability defendant’s motive and of United States v. 817 29th (11th Cir.1999)). course, in The dis- the extent that the defendant’s itself are trict court relied on this factor without enterprise terest tainted ” ” import any Id. Al of the other evaluating criminal conduct.’ exander, at in turn we have in de- quot 32 F.3d various factors enumerated Sarbello, termining a forfeiture is exces- ing United States v. understandable, This is because the of the vehicle to gain physical possession sive. mistakenly directed the dis- government drugs and to evade visit- detection — 1.1, 2D per- ing multiple pharmacies, using trict court to Guideline which drug manufacturing tains to crimes and lanes rather than entering pharmacies, $75,000. provides conducting for a fine of and pro- counter-surveillance — The value of Ms. Clemons’s minivan was vides abundant evidence of the connection $14,000. $12,000 and appeal, between On between the vehicle and her commission of government concedes that invoked the crimes. provision. an incorrect par- Guideline dissent, however, I respectfully from the agree applicable ties now the most court’s decision to remand the case to the Guideline to Ms. underlying- Clemons’s again district court to decide the constitu- 2D2.1, pertains penalties crime is which question tional whether forfeiture of the drug possession provides for for minivan prohibited by the Excessive $10,000. maximum fine of Fines Clause of the Eighth Amendment. circumstances, Under these we find that The case was tried to the district court on should case be remanded for further facts, stipulated and there is thus no need consideration the district court. On to remand for findings additional of fact. remand, the court district should consider Although legal the district court based its all the relevant bearing factors on the part decision in on a mistaken understand- constitutionality of this forfeiture. We do ing of applicable range under the express opinion an as to the ultimate Guidelines, Sentencing States issue whether or not forfeiture of the parties have briefed and argued appeal unconstitutionally defendant according to the guideline range, correct Instead, only excessive. we conclude and our review the district court’s legal district should evaluate this case determination is de novo. United light of the proper Guideline provision (8th Cir.2002). Moyer, 313 F.3d just other factors that bear on the We have the argument evidence and nec- resolution of this case. See Went- essary to decide the and a 60^0 remand S., worth Ave. (directing primarily lay would groundwork district courts to multiple consider fac- yet likely another appeal of the constitu- tors). question, tional in parties which the would argue brief and the same facts and law Therefore, judgment we reverse the of presented to in appeal. us this the district court and remand for further proceedings not inconsistent with this merits, On the I would hold that forfei opinion. ture of the minivan is constitutional. At outset, the there question substantial COLLOTON, Judge, concurring Circuit “gross whether proportionality” analysis in part dissenting and in part. under the Excessive Fines Clause even I concur in the court’s conclusion that applies to the in forfeiture this case. government proved the by preponder- 321, United States v. Bajakajian, 524 U.S. ance of the 2028, evidence that there (1998), was a 118 S.Ct. 141 L.Ed.2d 314 “[ijnstru- “substantial connection” between Supreme Ms. Court reiterated that Clemons’s minivan and her criminal of- historically mentalities have been treated possessing fense of a controlled substance ‘guilty as a form of property’ that can be by theft, misrepresentation, fraud, forgery, forfeited civil in proceedings.” rem Id. deception, or subterfuge. 333, Clemons’s use at 118 S.Ct. 2028. The Court further But following “gross proportionality” of an an in rem forfeiture intimated that inquiry adopted prior our court is, to “instrumentality”- property that —-that Bajakajian, I that the also believe forfei an [is] “the actual means which offense ap ture is constitutional. Under subject to un- review committed”—is n we both proach, have considered Fines Clause. Id. at the Excessive der the forfeited was an “instrumen 2028. As an of example 333 n. tality,” relationship or had a to the close falls within the “strict histor- property that offense, severity whether the and definition of “instru- ical limitation” on the “proportional” of forfeiture was to the mentality,” cited forfeiture the Court gravity generally the offense. See that facilitates the trans- of an automobile Ave., United States v. Wentworth to avoid tax- portation goods concealed Cir.1997). (8th F.3d As the 688-90 9, 118 es. Id. at 333 nn.8 & S.Ct. notes, in considering ante Goldsmith, (citing Jr.-Grant Co. v. J.W. analysis, proportionality aspect of this States, 508-10, 41 254 U.S. United “ have said that the value of the prop ‘[i]f (1921)). 189, L.Ed. 376 S.Ct. erty permis forfeited is or near within range sentencing sible of fines If, an suggested, as automo- the Court almost certainly the forfeiture guidelines, goods or “conceal” bile used to “remove” is not excessive.’ Sher “instrumentality” avoid is an ex- taxes (8th Cir.2001) man, analysis, empt from fines then excessive N.E. v. 817 29th United States why used is difficult to see the vehicle Drive, procure Ms. controlled sub- Clemons 1999)), vacated sub nom. United States v. Just, similarly stances is not situated. Diaz, (8th Cir.2001), reinstat Co. vehicle J.W. Goldsmith-Grant Cir.2002) (en banc). ed, 296 F.3d 680 “the which” the driv- actual means this presumably adopted We have rule on removing er committed the offense Sentencing the view that the Commission’s concealing the Clemons minivan goods, usually range a fine iden determination of was “the actual means which” its owner disproportion tifies sanction that is not hydro- illegally possession came into ately severe in relation Bajakajian, 524 at 333 codone. See the offense. 2028; see Austin nn.8 & 118 S.Ct. also Here, permissible Clemons’s States, 602, 627-28, 113 v. United 509 U.S. (if prosecut had been criminal offense she (1993) (Scalia, 2801, 125 L.Ed.2d 488 S.Ct. court) ranged up in federal ed J., concurring part concurring sentencing guidelines. under the USSG (scales judgment) used to out measure 5E1.2(c)(3). 2D2.1(a)(l), stipulated §§ instrumentalities). unlawful are drug sales $12,000 minivan of the was between value appear minivan to at the Clemons used the $12,000 $14,000. (taking A value of and pharmacy; drive-thru window of the end in burden of light the low of Clemons’s hence, “actually by the vehicle was used” maximum of proof) guideline is “near” the and control over her obtain dominion $10,000, by and amount which it ex the drugs. 524 prescription the See certainly guideline range the is not ceeds Applying n. the 333 118 S.Ct. is more great punishment so that “the in Ba- analysis Court’s of instrumentalities than crime.” Wentworth criminal the 6040 (internal Ave., quotation forfeiture of the mini- jakajian, the in rem 123 F.3d at 688 omitted); v. to raise no issue & appears van ease- see also United this St., 1165, 1172-73 Hall 74 F.3d the Fines Clause. under Excessive Cir.1996) (forfeiture property arbitrary valued at risk of and re- decisionmaking, predictability duce from to the one case was not excessive where the maxi- next. Id. at Rational actors the sentencing guidelines mum fine under the justice system, criminal law whether en- $40,000). persons may forcement officials who be The court recites numerous factors —a statutes, to the forfeiture would fourteen, my may by total of count—that clarity benefit from in our jurisprudence. applicable determining whether precedents Supreme The of the Court by prohibited Eighth forfeiture is the and our concerning court the Excessive Amendment. have Some minimal rele suggest Fines Clause that two factors de importance in this vance case. (1) serve predominant the consideration — parties, forfeiture’s effect on innocent relationship the property between forfeited (as here) example, where “diminishes” the offense, and Bajakajian, the criminal see property owner has been convicted aof 2028; n. U.S. at 333 crime and the used substantial Ave., (2) 690; Wentworth F.3d at ly to facilitate conduct. United severity pro whether the penalty Bieri, States v. offense, portional to the 1995). (such Other factors as the harm measured value act, wrongdoer’s caused the value of forfeited is within or near the seized, drugs and the value of the applicable range sentencing fine under the forfeited) are alternative measures of the Id.; Sherman, guidelines. 262 F.3d at gravity of an severity offense of a 795. In this both support factors circumstances, penalty, and absent unusual government’s forfeiture of minivan. they general are subsumed our pre within None of the other factors cited sumption penalty that a within or near the court presents strong countervailing con applicable ques under sideration that raises a range guidelines substantial tion constitutionality about the of the for grossly is not disproportionate. Accordingly, feiture. I would affirm the generally, More it seems to me helpful judgment of district court. for our court give guidance some district courts about which factors deserve weight determining

most whether a for- fine,”

feiture constitutes an “excessive

to consolidate redundant factors where noted, possible. As have others the sort of America, UNITED STATES of multi-factor test balancing described Appellee, Plaintiff — today often “leaves much to be v. Comm’r, Spring Corp. desired.” Exacto (7th Cir.1999). Larry STROPES, 196 F.3d Rennie Defendant— Lists of Appellant. undifferentiated factors be balanced on case-by-case “redundant, basis often are No. 04-1312. unclear,” incomplete, and id. United States Court of Appeals, City Chicago, Palmer v. Eighth Circuit. (7th Cir.1986)), and I fear that our June Submitted: ever-growing enumeration in this area is description. approaching that While mul- Oct. Filed: ti-factor balancing tests increase the dis- of judges, they heighten

cretion also

Case Details

Case Name: United States v. Dodge Caravan Grand Se/sport Van, Vin 1b4gp44g2yb7884560 Erin Clemons, Claimant-Appellant

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Oct 27, 2004

Citation: 387 F.3d 758

Docket Number: 03-1925

Court Abbreviation: 8th Cir.