UNITED STATES of America, Plaintiff-Appellant, v. Hosep Krikor BAJAKAJIAN, aka: Joe Bajakajian, Defendant-Appellee.
No. 95-50094
United States Court of Appeals, Ninth Circuit
Argued and Submitted Feb. 6, 1996. Decided May 20, 1996.
84 F.3d 334
CONCLUSION
As set forth above, magistrate judges do not have authority under the Federal Magistrates Act to conduct a probation revocation hearing without defendant‘s consent. Because we find that a probation revocation hearing “constitutes a critical stage of the criminal proceeding, the absence of consent mandate[s] reversal.” Foster, 57 F.3d at 731. We, therefore, vacate the district court‘s order revoking defendant‘s probation and instruct the district court, on remand, to conduct a new probation revocation hearing for defendant.
REVERSED AND REMANDED.
Ronald L. Cheng, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellant.
James E. Blatt, Encino, California, for the defendant-appellee.
James E. Blatt, Encino, CA, for defendant-appellee.
Before: WALLACE, FERGUSON, and T.G. NELSON, Circuit Judges.
FERGUSON, Circuit Judge:
The United States appeals the decision of the district court following the defendant‘s guilty plea to failure to report currency in violation of
I. Factual and Procedural Background
On June 9, 1994, Bajakajian was attempting to board an Alitalia Airways flight leaving Los Angeles, destined for Cyprus. While Bajakajian was waiting to board his flight, U.S. Customs discovered approximately $140,000 concealed in four pieces of Bajakajian‘s checked luggage and $90,000 concealed in a false bottom of one of his bags. After discovering the hidden currency, a Customs inspector stopped the defendant and his family at the airport and informed them that they were required to report all money in both their personal possession and baggage which exceeded $10,000, irrespective of whether the money belonged to them. Bajakajian told the Customs inspector that he had $8,000 with him and that his wife had an additional $7,000. Bajakajian informed the inspector that his family had no additional money to report.
Customs inspectors discovered a total of $357,144 in United States currency in the carry-on baggage, checked-in baggage, wallet, and purse of the defendant and his wife. After being advised of his rights, Bajakajian admitted to Customs agents that he knowingly and wilfully failed to report the currency which was discovered.
On July 8, 1994, a grand jury returned a three count indictment against the defendant. Count One charged the defendant with violation of
On October 27, 1994, pursuant to a plea agreement, the defendant entered a guilty plea as to Count One of the indictment and waived a jury trial as to Count Three. The government agreed to dismiss Count Two at the time of sentencing. On December 20, 1994, a bench trial was held for Count Three. The district court found that the entire $357,144 discovered by Customs agents was subject to criminal forfeiture pursuant to
II. Discussion
A district court‘s interpretation of federal forfeiture law is reviewed de novo. United States v. 1980 Lear Jet, 38 F.3d 398, 400 (9th Cir. 1994).
The government alleges on appeal that the district court erred in requiring forfeiture of only $15,000 because the entire $357,144 at issue should have been forfeited. In the alternative, the government requests forfeiture of $170,000, the amount of currency which Bajakajian asked a friend to lie about to Customs agents.
The forfeiture statute relevant to this litigation,
Therefore, pursuant to
The Supreme Court, in Austin, declined to enumerate the factors to be considered in determining whether a forfeiture violates the Excessive Fines Clause. Austin, 509 U.S. at 621-23. We recently addressed this issue and established a two-pronged test for determining whether a forfeiture is unconstitutionally excessive under the Eighth Amendment. United States v. Real Property Located in El Dorado County, 59 F.3d 974, 982 (9th Cir. 1995).
Pursuant to this court‘s Excessive Fines Clause test, a forfeiture is constitutional if: (1) the property forfeited is an “instrumentality” of the crime committed; and (2) the value of the property is proportional to the culpability of the owner.3 Id. at 982. Therefore, Bajakajian cannot be ordered to forfeit any currency unless forfeiture in the present case would satisfy both the instrumentality and proportionality prongs of our recently established Excessive Fines Clause test.
Application of the instrumentality prong of the Excessive Fines test to a
This court, in $69,292, also rejected the argument that the currency in a
Simply put the existence of the currency as a precondition does not make it an instrumentality. For example, we would not characterize lawfully earned income an instrumentality forfeitable as such simply because a taxpayer wilfully failed to report that income on his tax return in violation of the tax code. The government would have us stretch the fiction of an “instrumentality” to the breaking point.
Id. at 1167-68 (citation omitted). See also Austin v. United States, 509 U.S. 602, 619-21 (1993) (rejecting expansive definitions as to what qualifies as the instrumentality of a particular crime).
The government argues that the majority opinion in $69,292 conflicts with the Supreme Court‘s decision in One Lot Emerald Cut Stones v. United States, 409 U.S. 232 (1972). There, the Court upheld the forfeiture of imported goods pursuant to
However, $69,292 and One Lot Emerald Cut Stones are not in conflict. One Lot Emerald Cut Stones involved the smuggling of contraband. When a defendant is convicted for failure to report currency pursuant to
We hereby adopt the logic of the court in $69,292.6 Forfeiture of currency is
Therefore, the district court erred in ordering Bajakajian to forfeit $15,000. Forfeiture of any amount would be unconstitutionally excessive under the El Dorado Excessive Fines Clause test. However, Bajakajian failed to file a cross-appeal requesting a modification of the district court‘s order that he forfeit $15,000. If an appellee seeks a modification of the district court‘s judgment, he must file a cross-appeal requesting the modification. Unless an appellee files a cross-appeal, “the appellee may not attack the [district court‘s] decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary, whether what he seeks is to correct an error or to supplement the decree with respect to a matter not dealt with below.” United States v. One 1964 MG, 584 F.2d 889, 890 (9th Cir. 1978) (quoting United States v. American Ry. Express Co., 265 U.S. 425, 435 (1924)).
Although pursuant to the Excessive Fines Clause Bajakajian cannot be ordered to forfeit any of the unreported currency, he is nonetheless forced to accept the decision of the district court. Bajakajian failed to file a cross-appeal, and therefore, this court lacks jurisdiction to set aside the district court‘s forfeiture order of $15,000.
III. Conclusion
The decision of the district court is AFFIRMED.
WALLACE, Circuit Judge, concurring:
The majority takes our dicta in United States v. $69,292.00 in U.S. Currency, 62 F.3d 1161 (9th Cir. 1995) ($69,292), to an illogical extreme. In so doing, the majority strikes down a portion of
We are not bound by the dicta in $69,292. In $69,292, we explained the analysis used to determine whether a forfeiture violates the Eighth Amendment. $69,292, 62 F.3d at 1166-67, citing United States v. Real Property Located in El Dorado County, 59 F.3d 974 (9th Cir. 1995) (El Dorado). To satisfy the Eighth Amendment‘s prohibition against excessive fines, forfeited property must be instrumental to the crime and proportional in value to the culpability of the owner. El Dorado, 59 F.3d at 982. In $69,292, the district court did not analyze the forfeiture in terms of our intervening decision in El Dorado. Thus, we remanded to enable the district court to make appropriate findings. $69,292, 62 F.3d at 1168.
The majority would read $69,292 as holding that currency involved in a section 5316 violation is never an instrumentality of the crime. Majority at 337 & n.6. The majority‘s reading of $69,292 renders all forfeitures of currency in such circumstances unconstitutional under our test in El Dorado. But if in $69,292 we had held that all forfeitures of currency involved in reporting violations necessarily fail El Dorado, we would not have written that, “[w]e make no assessment as to
Not only is this $69,292 discussion clearly dicta, but there are two additional interrelated problems—one with the majority‘s interpretation of the dicta in $69,292 and one with the $69,292 dicta itself.
First, the majority misreads our remarks in $69,292. We asserted there that we were not “persuaded that currency lawfully acquired and possessed has the necessarily close relationship to the crime simply because it has not been reported.” Id. at 1167 (emphasis added). Our remarks were focused on the source of the defendants’ funds, and we suggested that legally obtained funds might not be instrumental. See id. (explaining that “the reporting requirement applies to all currency, whether it is lawfully gained or not,” and suggesting that we should analyze forfeiture based in part on the source of the funds). If on remand the district court in $69,292 had found that the defendants acquired the funds illegally, nothing in $69,292 would have precluded forfeiture.
The majority, purporting to “adopt the logic of the court in $69,292,” maj. op. at 337, overlooks $69,292‘s underlying rationale. The majority holds that “[f]orfeiture of currency is unconstitutional when the crime to which the forfeiture is tied is a mere failure to report pursuant to
Second, it is precisely $69,292‘s focus on lawfully acquired funds that makes $69,292‘s instrumentality dicta problematic. $69,292 suggests that instrumentality should turn, at least in part, on the source of the funds. However, I interpret the instrumentality inquiry as being completely divorced from the source of the funds. After all, why is currency any more instrumental when the currency is legally obtained as opposed to when it is illegally obtained? See United States v. $145,139.00 in United States Currency, 18 F.3d 73, 75 (2d Cir. 1994) (Currency was “an instrument of the crime [of failure to report]. It was the ‘means’ by which the crime was committed.... Indeed, it was the very sine qua non of the crime.“), cert. denied, 513 U.S. 815, 115 S.Ct. 72, 130 L.Ed.2d 27 (1994); Austin v. United States, 509 U.S. 602, 627-29 (1993) (Scalia, J., concurring) (explaining the instrumentality inquiry as being whether “property has been ‘tainted’ by unlawful use ... [in other words,] whether the confiscated property has a close enough relationship to the offense” (emphasis omitted)), quoted in El Dorado, 59 F.3d at 982. In this case, the crime was Bajakajian‘s failure to report $357,144 that he had secretly stashed. I cannot agree with the majority that there is an insufficient nexus between the acquired currency and the offense—without the currency, there can be no offense.
Of course, the source of the acquired funds does have a place in our Eighth Amendment inquiry under El Dorado. However, the inquiry into the source of the funds is part of the proportionality analysis, not the instrumentality inquiry. El Dorado, 59 F.3d at 985-86 (explicitly requiring district court to consider, as part of proportionality determination, the “culpability of the owner“); see also id. at 983 (adopting “the proportionality test as a check on the instrumentality approach” because of the instrumentality prong‘s “potentially harsh results, when applied alone“). If, as the district court held, Bajakajian‘s funds were lawfully obtained from friends and family and were not to be illegally used, then these facts might warrant a reduced forfeiture to avoid an excessive fine.
I therefore disagree with the majority‘s conclusion that the currency was not instrumental as a matter of law. I would hold that the district court properly found that the entire amount of currency was potentially forfeitable. The currency was instrumental. As to proportionality, I would review for clear error the district court‘s factual findings underpinning its decision to forfeit only
In re James Delbert McCONVILLE, Debtor. Tevis T. THOMPSON, Jr., Trustee, Plaintiff-Appellee, v. David MARGEN; Lawton Associates, Defendants-Appellants.
No. 95-15122
United States Court of Appeals, Ninth Circuit
Argued and Submitted April 9, 1996. Decided May 21, 1996.
Irving J. Kornfield, Kornfield, Paul & Bupp, Oakland, California, for the plaintiff-appellee.
Before: BROWNING and JOHN T. NOONAN, Jr., Circuit Judges, and MERHIGE,* District Judge.
OPINION
NOONAN, Circuit Judge:
David Margen and Lawton Associates (the Lenders) appeal a judgment of the district court in favor of Tevis Thompson, Jr., (the Trustee), trustee in bankruptcy of James D. and Clara M. McConville (the Debtors). The judgment held void a deed of trust given by the Debtors to the Lenders after the Debtors had filed for bankruptcy. Applying