United States v. Jalaram, Inc.

2005), Amendment, reject light was correct claim. In the district court Johnson’s than ample evidence obtained as result. of our discussion of the more allowing car,

reasons for the search of the we find no merit to suggestion Johnson’s C. jury there was insufficient evidence for challenges the Finally, Johnson dis possessed to conclude that he the items suppress trict court’s refusal to evidence found within it. concerning drugs, drug paraphernalia, Finally, citing Apprendi Jersey, v. New in the car. Once handgun discovered 2348, 147 L.Ed.2d no error. again, we find (2000), Johnson also raises a Sixth may readily search a mo Officers challenge Amendment to his sentence en- they probable automobile if have cause bile 924(e), hancement under 18 U.S.C. that their search will uncover believe since, Armed Career Criminal Act. But Kelly, contraband. States v. See United acknowledges, already rejected he we have (4th Cir.2010). 592 F.3d 589-91 Here makes, very argument he see United ample probable there was basis for cause. Cheek, (4th 415 F.3d probable Bannerman had cause to Officer Cir.2005), this claim too must fail. engaging believe that Johnson had been he drug crimes the time reached the V. was seen on video car. Since Johnson reasons, foregoing judgment For the just car before the hand-to- going to the hereby at the heart of hand encounters that were AFFIRMED. arrest, probable cause to Bannerman probable in turn cause to believe the had

car of those activities. contained evidence

This was all the more so since when Ban window, looked into the car’s

nerman way the Fourth

act that violated Amendment, gelcaps plain he saw view America, UNITED STATES like one he had recovered John Plaintiff-Appellant, Brown, son. See 460 U.S. at 1535; Taylor, United States v. Bank, (4th Cir.1996). Incorporated; Centra BB & T 909 n. 4 Parties-in-Interest,

Corporation, IV. v. Fourth Amendment addition to his JALARAM, INCORPORATED,

claims, challenges aspects of his Johnson Defendant-Appellee. First, grounds. conviction on two other No. 08-5172. argues

Johnson his convictions on the two Appeals, possession of a firearm United States Court relating counts Fourth Circuit. supported by were not sufficient evidence. fail “if sufficiency Because a claim must Argued: Dec. evidence,

there is substantial viewed 2, 2010. April Decided: Government, light most favorable to the verdict, support” jury’s United States Cardwell, Cir. Stein, Michael Office

ARGUED: Wheeling, Attorney, West United States P. Kelber- Dale Virginia, Appellant. for PC, Baltimore, man, Stoekbridge, 2003, employed from 2000 to approximate- Miles & Maryland, Appellee. ly fifty prostitutes, generated for ON BRIEF: over Potter, $670,000 Attorney, proceeds. L. United States Id. Sharon Roussillon, Derek P. Miles Appellant. Inn, by Jalaram, The Scottish owned Baltimore, PC, Stoekbridge, Maryland, & in turn is which owned Suresh Patel Appellee. wife, played and his host to the Gold Club period for a of approximately six months MICHAEL, MOTZ, KING, and Before through early from late 2001 2002. Dur- Judges. Circuit brother, ing period, Suresh Patel’s Patel, “Dan” Dilipkumar ran the Scottish by published Reversed and remanded Inn a day-to-day on basis. Dan Patel lived Judge opinion, Motz wrote the opinion. at present the motel and was there except Judge joined. Judge King Michael which bank, deposits when he took to the during opinion concurring in the wrote typically which time his brother would cov- judgment. er for him. Id. at 242-43.

OPINION joined conspiracy Jalaram the after Su- MOTZ, DIANA GRIBBON Circuit Powell, manager/madam san the of the Judge: Club, Gold met with Suresh Patel to dis- using Inn, cuss the Scottish rather than appeals The Government the district (which Economy the Inn she had been request court’s denial of its for the forfei- using own), and which Jalaram does not $358,390.22 in proceeds. ture of a site for her “adult compa- entertainment sought the for- ny.” Suresh Patel asked Powell to meet Jalaram, Inc., feiture from the owner of a with Dan Patel following day, and the in a participant motel and two an agreement. reached Id. at 242. the anti-prostitution provisions violate the Mann Act. The district court held that agreement, Under the terms of that Dan requested forfeiture would violate the Patel a provided room at the Scottish Inn Eighth Amendment’s Excessive Fines prostitute to each working given day, on a follow, For the Clause. reasons we forgoing often the Scottish Inn’s usual re- reverse remand. quirement guests fill registration out prostitutes cards. The waited in the motel

I. room for clients. Powell ap- coordinated pointments employees and checked on her prosecution This case arises from the by using days the motel switchboard. On conspirators prostitution ring a prostitutes when the saw at least one cus- known as Gold Club. an earlier tomer, they paid a room rental fee of $40 appeal, we related in some detail the facts Dan Patel. days prosti- On when the underlying conspiracy. See United clients, any tutes did not serve Dan Patel Singh, waived the fee. At night, prostitutes Cir.2008). only the We set forth here relinquished motel, their rooms to the facts relevant the instant case. which re-rented the accommodations to prostitutes The Gold Club ferried at travelers. Id. 241-42. Martinsburg, Virgi- several states to West nia, they at operated where served clients two mo- After the Gold Club had at the tels, months, Economy Inn Inn for approximately Scottish Scottish six conspiracy operated prostitutes Inn. The reported Gold Club some dissatis- jury instructions that it had erred its to return to desire expressed faction and reason, during liability, the district concerning corporate For this Economy Inn. operated Gold Club other convictions period, court set aside Jalaram’s short concurrently. the Scot- While charges. both motels trial on those and ordered new their activi- prostitutes, tish Inn hosted appealed and at 245. The Government Id. $385,000 in generated approximately ties reversed, court holding the district we Powell moved Subsequently, proceeds.1 money laundering improperly vacated Economy Club back the entire Gold incorrectly jury found its convictions and police there until the operated Inn and inadequate. instructions Id. 248-51. at 243. Powell her in 2003. Id. arrested Thus, jury reinstated the verdict cooperated a tax offense and pled guilty to all counts and remand- against Jalaram on investigation. Id. with the Government’s at 255-56. sentencing. ed for Id. at 241. remand, to sought the Government On jury returned four- grand A federal jury finding and obtain from enforce the Pa- charging Suresh teen-count indictment Inn forfeiture of the Scottish as a Jalaram Jalaram, tel, Patel, Dan and other Gold facilitating property conspiracy. violations of the conspirators with Club forfeiture, agreed lieu of this Jalaram money laundering. Act and One Mann $350,000. The Gov- pay the United States sought conspirators from the count also jury sought also to enforce the ernment Economy Inn and the including finding conspirators, Ja- Inn, $670,000 more than plus Scottish laram, jointly severally liable for were conspiracy. Id. gross proceeds from $670,072.36 gross pro- the forfeiture at 243-44. Jalaram, conspiracy. ceeds of the From trial, six-day jury acquitted After a sought only guilty Patel returned a verdict Suresh but generated during the six months that the Jalaram, Patel, against Dan and the other participated conspiracy, Inn in the Scottish jury conspirators. The found Jalaram conceded totaled which Jalaram conspiracy count of to commit guilty one $385,390.22. against an offense the United States Act, five counts of violation of the Mann subjected requested The district to travel conspiracy to induce individual Eighth to an Amend- proceeds forfeiture engage prosti- interstate commerce analysis, ment Excessive Fines Clause tution, to commit one count of dispropor- grossly found that it would be money money laundering, and one count crime, tional and denied the to Jalaram’s Moreover, laundering. special in a inter- request. The Government Government’s motels, jury found rogatory the both timely appeal. noted this total well as the Gold Club’s ($670,072.36),subject Id. at to forfeiture. II.

240, 244. provision The forfeiture issue states

The district court vacated all of the mon- violating or insufficiency any person convicted of ey laundering convictions for Then, Act concluding conspiring at 244. to violate the Mann of evidence. Id. uncommon, er, registration and Jalaram opera- Club was 1. Jalaram received from the Gold $700, paid by certainly tions minimum of the amount more than therefore almost received prostitutes days they completed reg- on when Singh, $700. See 243 n. 5. concedes, howev- istration cards. As Jalaram $385,390.22, shall forfeit to the United States such the and so the Government in ... person’s interest now seeks from Jalaram a forfeiture of $358,390.22 in proceeds. Jalaram (2) con- any property, real or personal, con- tends, as it did court, before the district stituting or traceable gross profits or that such a forfeiture violates Eighth other obtained from such of- Amendment prohibition on “excessive fense; and fines.”3 (3) any property, real personal, or used

or intended to be used to commit or to Amendment dictates promote the commission of such offense. that “[e]xcessive bail shall not required, be nor excessive imposed, nor cruel and 2253(a) (2000) (amended 2006) § 18 U.S.C. fines punishments unusual inflicted.” U.S. added).2 (emphases case, In this in addi- Const, added). amend. (emphasis VIII tion to now-satisfied forfeiture of the Scot- Application of the Excessive Fines Clause tish Inn a facilitating property pursu- presents question of law that we review 2253(a)(3), ant to the Government also de novo. United States v. Bajakajian, 524 sought from Jalaram forfeiture 321, U.S. 336 & n. 118 S.Ct. $385,390.22 proceeds conspiracy (1998). L.Ed.2d 314 2253(a)(2). pursuant §to The Government sought the forfeiture of Supreme The Court has held “that proceeds these as part Jalaram’s crimi- punitive a forfeiture violates the Excessive nal Conspirators sentence. responsi- “are Fines if grossly Clause it is disproportional sentencing ble at for co-conspirators’ rea- gravity to the of a defendant’s offense.” sonably foreseeable acts and omissions ... Id. at Thus, 118 S.Ct. 2028. a forfei jointly furtherance of the undertaken ture violates the Excessive Fines Clause activity.” criminal United States v. (1) only (2) if it punitive, is grossly McHan, Cir.1996) disproportional to the gravity of the defen (alteration (internal in original) quotation dant’s offense. omitted).

marks We have therefore held case, In this argues Government at conspirators jointly severally liable for length that the at forfeiture issue here—-an proceeds forfeiture of a conspira- in personam criminal pro- forfeiture of cy. See id. by definition never meets the first ceeds— The Gold Club conspiracy criterion, i.e., received punitive, is never and there- $670,072.36 proceeds from 2000 to subject 2003. fore is never to examination under $385,390.22 The generated criterion, dur- the second proportionality. The ing period participation. Jalaram’s that, briefly also contends if personally $27,000 Dan Patel forfeited punitive and so to proportionality Congress 2. subsequently amended the Mann forfeiture. These cases do not assist Jalaram Act provision so a different forfeiture sentencing because a court does not have dis- applies today. to violations See 18 U.S.C. ignore statutory cretion provi- to forfeiture (2006). § 2428 That amendment has ef- Monsanto, sion. See United States v. 491 U.S. appeal. fect Singh, on this See 518 F.3d at 600, 607, 105 L.Ed.2d 512 244 all. (1989) (reasoning "Congress could not stronger have chosen express words to its States, Relying on Rita v. United 551 U.S. mandatory” intent that forfeiture be than the (2007), 168 L.Ed.2d 203 forfeit”). phrase “shall Unless Constitu- that, progeny, suggests and its Jalaram also forfeiture, tion bars the the district court event, any uphold we must as “reason- impose must it. able” the district court's refusal to order the tures, punishment constitute be- sur- do not review, forfeiture would cause civil forfeitures serve “remedial” analysis. vive such 605-06, purpose. See id. reject the Government’s Although flatly rejected the Supreme Court agree stat- argument, we principal ex- argument. The Court Government’s here is utorily required sanction,” that even “a civil plained gravity disproportional grossly pur- a remedial “solely” does not serve offense. Jalaram’s either retributive or pose, “serv[e] but also punishment, as we purposes, deterrent III. the term.” Id. at have come to understand that the Ex- maintains The Government omitted) (internal quotation marks apply does not Fines Clause cessive added). Because the civil forfei- (emphasis such forfei- because forfeitures con- targeted ture statute Austin those Contrary “punitive.” can never be tures sought of crimes and to deter future victed contention, we have to the Government’s that, offenses, held at least in the Court Moreover, Supreme three so held.4 never payment part, “constitute^] largely slighted precedents, Court sovereign punishment for some Government, us now to conclude require offense, and, such, subject to the [was] Ex- limitations of the Amendment’s does indeed constitute (internal cessive Fines Id. Clause.” applies. Excessive Fines Clause which the omitted). citation quotation marks and States, 602, Accordingly, Supreme Court reversed In Austin v. United for a determination of and remanded 2801, 604-05, L.Ed.2d 113 S.Ct. 125 488 civil forfeiture was challenged whether the (1993), civil sought the Government in rem unconstitutionally Id. at 604. excessive. property” mobile “guilty —a body shop during an auto home and day On the same that the Court decided —used Although the case at drug offenses. Austin, opinion it issued its Alexander ignores all but Aus- hand the Government States, 544, 509 U.S. United tin, there, here, at- the Government (1993). 2766, A jury 125 L.Ed.2d 441 con- class of tempted categorize to an entire Alexander of RICO violations for victed puni- rather than forfeitures as remedial trafficking obscenity, and the Govern- tive, exempt assets, from Excessive and therefore sought ment forfeiture of numerous scrutiny. Specifically, the Govern- including “proceeds Fines obtained from [he] held, 547, 548, contended, racketeering and the lower courts his offenses.” Id. ment added).5 forfeitures, (emphasis criminal forfei- 113 S.Ct. 2766 The that civil unlike 1995) subject only (stating in dicta that the forfeiture of 4. We this in dicta have addressed proceeds a consti "can never be 'excessive' in unpublished opinions. in these or And even Powell, sense”), 2 tutional and United States v. utterances, nonbinding to con have come 290, (4th Cir.2001) (unpub Fed.Appx. 294 flicting Compare conclusions. lished) (concluding pro that the forfeiture Borromeo, (4th 1993) 221 Cir. disproportional). never be The ceeds can (stating in dicta that the forfeiture erroneously repeatedly and as “may, given subject in a case” be that the statement in Wild constitutes serts Clause), Fines and United States v. Excessive holding; because in Wild the Gov it does not 93-5693, Shifflett, WL at *2 No. 1995 pro the forfeiture of ernment did not seek (4th Mar.23, 1995) (con (unpublished) Cir. ceeds. cluding ap the Excessive Fines Clause plies proceeds), with Unit to the forfeiture of hand, the Government errone- 5. In the case Wild, ed States v. Cir. U.S., ously that "Alexander v. contends later, years enforced the forfeiture order Five in Bajakajian, lower courts the Gov (and failed) Eighth without much discussion of the ernment once more attempted 548-49, Supreme Amendment issue. Id. at 113 to convince the Court that a for 2766. feiture did not punishment. S.Ct. constitute See 524 U.S. 141 L.Ed.2d Court, Supreme the Govern Before respondent 314. The report there failed to suggested that the forfeiture of crim ment $357,144 that attempted carry he out of always pass inal constitu country in violation of federal law re tional muster because “however severe” quiring any person transporting more than be, may person such forfeiture “a who has $10,000 325, 118 to declare the sum. Id. at acquired property ... with the S.Ct. 2028. The provision au has, least, illegal activity very at the “any thorized forfeiture of property ... vastly reduced moral claim to the contin involved such offense.” 18 U.S.C. enjoyment ued use or or such 982(a)(1) (1994). The Government its fruits.” Br. of U.S. at 39-40 in Alexan $357,144 sought forfeiture of the entire States, der v. United part respondent’s criminal sentence. (1993), 5.Ct. 125 L.Ed.2d 441 avail The district court held that such a forfei Rejecting able at 1992 WL 511952. ture would violate the Excessive Fines effort to shield all apparent proceeds for Clause, $15,000 imposed instead for review, from proportionality feitures feiture; Ninth Circuit affirmed. Id. at Supreme Court concluded that the entire 326-27, 118 S.Ct. 2028. forfeiture, including pro the forfeiture of ceeds, “clearly monetary was a form of The Government urged Supreme different, reverse, Court to contending that the stat- purposes, Amendment from a utory traditional subject was not to Exces- ” ‘fine,’ analysis analysis and so under sive Fines because currency Alexander, the Excessive Fines Clause. question “guilty was property” whose for- 558-59, 509 U.S. at In S.Ct. feiture was puni- “remedial” rather than “[ujnlike deed, 329-30, Court noted Aus Id. at tive. S.Ct.

tin, Court, this personam Supreme however, case involves in crimi had “little trou- forfeiture, nal forfeiture not in rem rejecting civil so ble” argument and “conclud- there was no question ing threshold concern the forfeiture ... constitute^] ing applicability Eighth the punishment” Amend because it “imposed was at ment.” Id. at 559 n. [,] 113 S.Ct. 2766. the culmination of a criminal proceeding Accordingly, the again require[d] Court reversed and ... conviction of an underlying for a felony, remanded determination of whether ... imposed and be [could] ... (including only the contested forfeiture the for a upon person who has himself been proceeds) unconstitutionally feiture of was convicted” of the crime. at Id. excessive. See id. at 113 S.Ct. 2766.6 S.Ct. 2028. 544, 559, U.S. S.Ct. 125 L.Ed.2d late court held that "[florfeiture of (1993) ... not the thus, [did] involve forfeiture punishment, cannot be considered and proceeds.” of See Government's Br. at 19. clause, subject to the excessive fines as it simply parts the owner from the fruits of the remand,

6. On the Circuit afforded no Alexander, activity.” United criminal significance Supreme to the fact the (8th Cir.1994). This does pro- Court had remanded the forfeiture of comply Supreme to us to seem with the ceeds, property, like the other forfeited for Court’s remand order. Instead, analysis. appel- Excessive Fines the the here, proportionality review under Bajakajian ject the note particular Of argu- the Excessive Fines Clause. rejected Government’s Court question was currency ment that Supreme The Excessive Court’s it forfeiture because subject nonpunitive require cases us to re Fines Clause thus crime, a “instrumentality” of the was that for ject argument the Government’s historically exempt property class of particular property— a type feiture of rec- analysis. Fines The Court Excessive conspira of a criminal here the “[¡Instrumentalities historical- ognized that definition, Instead, cy is, nonpunitive. ‘guilty a form of — have been treated as ly forfei challenged to whether the we look in civil in that can be forfeited property’ at from the part ture resulted least Ex- triggering without proceedings” rem owner, activity criminal scrutiny. Fines Id. cessive answering question, am. In Jalar hold, The on to 2028. Court went S.Ct. “im whether forfeiture was examine however, that when seeks the Government pro at the culmination of a posed by proceeding punish [a defendant] “to “requires an under ceeding,” conviction of rath- criminally, personam, him against lying felony,” imposed and “cannot be against proceeding than in rem er person] only an innocent ... but currency,” upon [the [ it is “irrelevant whether instrumentali- who con currency upon person is an has himself been defendant’s is and the test ty; punitive, the forfeiture a” crime. victed of Id. at forfei- punitive of a excessiveness solely de- proportionality ture involves The forfeiture all of these here meets 333-34, Id. at termination.” requirements. provision Mann Act forfeiture “the culmination of mandates Austin, Alexander, Bajakajian, proceeding” sentencing a criminal follow- — every Supreme member Court Moreover, six-day trial. like the ing objections, over the agreed, Government’s Bajakajian, the statute at issue statute challenged constituted forfeitures requires only person here after a proportionality felony. underlying “convicted” of analysis under Excessive Fines Clause. (amended 2253(a) (2000) See 18 U.S.C. case, argued In each 2006). Bajakajian, Also like the statute in property— of a certain type provision here a defense that includes prop- the civil guilty whether allows innocent third to defeat for- parties Austin, erty in criminal forfeiture 2253(b). Moreover, §id. feiture. See Alexander, the racketeering proceeds in or Bajakajian, challenged as in for- again the criminal forfeiture of instrumentalities appear feiture does not “remedial” because Bajakajian special exception a —merited ... currency the “forfeiture of the does the Excessive In each from Fines Clause. compen- the purpose not serve remedial of case, rejected the Court the Government’s sating Baja- the Government a loss.” for type prop- and reaffirmed that the view of 329, at kajian, 524 U.S. 118 S.Ct. 2028. issue was to the issue of erty at irrelevant reasons, Exces- For these we hold that the the punish- whether forfeiture constituted forfeiture applies sive Fines Clause to the Instead, consistently the fo- ment. Court challenged proceeds of in this case. stemmed, cused on whether the forfeiture so, that in most doing recognize In we part, at owner’s least the cases, a forfei- so, ultimately courts will find culpability. If the forfeiture disproportion- sub- grossly does constitute and so is ture of ment, In involving al to the offense. a case a those defendants would be unable to offender, difficult, very it would be single obtain relief. a holding Such grant perhaps impossible, and for the defendant the Government a license to “abuse ... its that forfeiture of proceeds ‘prosecutorial’ power,” to show was and thus undermine disproportional gravity grossly “primary of focus of Amendment.” Browning-Ferris Thus, Vt., his offense. we can understand the s. Indu of Inc., Inc. v. Disposal, Kelco desire of some of our sister circuits to 257, simplify analysis by holding such for- 106 L.Ed.2d 219 (1989).8 exempt feitures from constitutional scruti- While we recognize appeal inny the first instance.7 a analysis, streamlined we cannot engage expense one of constitutional However, proposed Government’s rights. may grave injustice shortcut work joint involving liability. cases and several IV. cases, In inevitably such some defendants Having held that the Excessive disgorge money they more than received applies, Fines Clause we must determine conspiracy, forfeiting from the thus prop- statutory whether forfeiture chal erty they lawfully obtained in order to lenged “grossly here is disproportional to satisfy judgment. the forfeiture In a case gravity Baja [Jalaram’s] offense.” played truly where a defendant minor kajian, U.S. 118 S.Ct. 2028. generated role in a vast Bajakajian, proceeds, joint liability several the Supreme Court proceeds might those result in a weighed a number of factors to determine grossly disproportional order to the indi- whether the forfeiture was grossly dispro- Yet, vidual defendant’s offense. if portional charged offense. The (1) adopt the rule advanced the Govern- Court considered the amount of the attempt In an to avoid the force of the that the Government cites were decided after cases, Supreme Bajakajian. Court’s forfeiture the Govern- One attempt does not to distin- "every guish ment asserts that ... circuit Bajakajian. that has or even mention See United Prop. addressed the issue has held that the States v. Real forfei- Located at 22 Santa Bar- Drive, (9th Cir.2001). property constituting ture of bara ... F.3d 860 footnote, alleged illegal Bajakajian activity other addresses in a can never be exces- stat- ing only “Bajakajian sive in a ... constitutional sense.” did not involve Government’s contraband, (internal drugs, omitted). quotation Br. at 17 or thereof.” marks Betancourt, See, simply United States v. e.g., This claim is false. F.3d Browne, (5th Cir.2005). n. 5 explains The court never matters, course, Cir.2007) why that (holding distinction it racketeering proceeds does not. punish- constitutes ment); Corrado, United States v. (6th Cir.2000) (recognizing "[tjhough suggest Our friend in concurrence seems to appears McHan, require [RICO] statute holding total that our 101 F.3d at illegal proceeds, requires ignore courts can re- a court to the individual role proportional duce the forfeiture to make it played by conspirator ordering when forfei- True, the seriousness of the proceeds. establishes, offense so as not to ture of McHan Eighth prohibition construction, violate the statutory Amendment as a matter of that a ”); against ... 'excessive fines’ United imposed joint States forfeiture statute and several St., v. NW liability 3814 Thurman given 1197 on all conspiracy. members of a (9th Cir.), McHan, reh'g amended on denial party suggested, F.3d But in and we of (1999) (holding hold, pro- every forfeiture of did not that forfeiture of applications ceeds compelled by front false loan pass constitutes a statute would constitu- Indeed, punishment). only two of the cases tional muster under the Amendment. au- that in the criminal Bajakajian, to the and unlike relationship its forfeiture and (a $357,144 activity spanned months. here several penalty thorized fine); the in and Ah- And like offenses Bollin to a maximum $5000 a crime mad, the Bajakajian, and unlike that in (2) criminal and of the nature extent the (3) offense); charged against -prostitu- crimes (a single reporting activity Jalaram — money connect- laundering tion and crime relationship between —were i.e., offenses, crimes (4) with other similar (none); ed and other crimes charged and Economy tax systematic at the Inn and charged crime caused the harm (the charge Pow- evasion for which Susan none). 337-39, 118 S.Ct. Id. at (again guilty). pled ell 2028. Furthermore, in also offense unlike the Bajakajian, we have years

In the since which a maximum fine Bajakajian, carried assess the these same factors to looked to $5000, lia- renders it of Jalaram’s offense challenged of forfeitures. proportionality $350,000. up for a fine of See ble Bollin, F.3d v. In United States Man- Sentencing States Guidelines (4th Cir.2001), forfei- we found the 802.7(b) (“U.S.S.G.”) 8C2.4, 8C2.6, §§ ual million excessive because ture of $1.2 (2008). suggest Such does not secu- conspiracy to commit the offense—a Bajakaji- minimal level of culpability.” “a criminal significant fraud —carried rities an, In U.S. time, long period a of penalties, spanned sum, of factors application Bajakajian including to other crimes was connected Congress indicates that considers crimes laundering, investors out money and bilked far than the like Jalaram’s more serious money. Similarly, sums of substantial and that reporting Bajakajian, offense Ahmad, United States significantly higher Jalaram must clear a (4th Cir.2000), the statute although requested hurdle to show that the forfei- pen- authorized Sentencing and Guidelines grossly gravi- ture is to the disproportional Bajakaji- alties that “mirror those [ed] ty offense. of its $101,587.42 an,” we held not excessive because the defendant’s urges us it Jalaram to consider ... single, “conduct was not a isolated only money a received small amount of only affecting government, untruth but conspiracy. from the individual Jalaram’s sophisticated rather a series of commercial conspiracy certainly role in the relevant years a period transactions over Bajakaji- of its gravity offense. See an, related to a fraud scheme.” were customs at 339 n. However, may the fact have that Jalaram Ahmad, application As Bollin only pro- received small share Bajakajian leads us to factors here ceeds, itself, does not demon- conclude that requested it in the played a minor role strate Although not be excessive. only That conspiracy. fact establishes any has not victims identified participation in the Jalaram’s offense, who suffered harm from Jalaram’s lucrative; speak to was not it does not suggest all of the other that Jalar- factors culpability. level of Jalaram’s crimes warrant punishment. am’s serious Ahmad, fact, although may have re-

Like the offenses in Bollin and Jalaram proceeds, Bajakajian, only and unlike offense in ceived small share of the activity conspira- in the generated played significant here hundreds it role in illicit Gold Club in the Scot- cy. operated of thousands dollars revenues. Ahmad, six Like the offenses in Inn—Jalaram’s Bollin and tish —for months, during conspiracy gen- separately which the to concur—on a different ba- $385,000 in erated over revenues. Dan sis—in the judgment of reversal. In my agent actively Patel —Jalaram’s fur- view, the request — Government’s for forfei- daily thered the activities of the Gold Club ture of the obtained the Mann during period by collecting that entire Act conspiracy did not implicate the Ex- rooms, payments, assigning rental cessive Fines Clause of the Eighth Amend- waiving registration requirements. Susan Thus, Fifth, ment. I join Sev- Powell—the head of the —used enth, Eighth, Ninth, and Tenth Circuits in supervise the motel’s switchboard to ruling that the purely remedial nature of prostitutes day. Far during the from be- proceeds forfeiture distinguishes it from ing player, a minor Jalaram stood at the punitive “fines” that subject are to the day-to-day heart of the conspiracy’s opera- Clause, Excessive Fines and I would not tions for a six-month period.9 reach the merits of Jalaram’s constitution- Because Jalaram’s offense was serious al challenge. culpability significant, and its individual it meet showing cannot its burden of decisions, As I read its Supreme forfeiture in this case would “grossly be Court has never decided whether the Ex disproportional” gravity to the of- its cessive applies Fines Clause to the forfei Therefore, fense. though even we hold See, ture of criminal proceeds. e.g., Unit the forfeiture of criminal ed v. Bajakajian, 321, 328, States 524 U.S. punitive subject and so scrutiny under (1998); 118 S.Ct. 141 L.Ed.2d 314 Eighth Amendment’s Excessive Fines States, Austin v. Clause, the district court in finding erred (1993). 125 L.Ed.2d 488 required this case According panel however, majority, would violate the Constitution. We re- the Court decided this issue in Alexander mand for the district court to resentence States, v. United where it remanded an Jalaram and determine pro- the amount of order forfeiture, of various types includ reasonably ceeds foreseeable to it and ing the proceeds, forfeiture of criminal therefore to forfeiture under 18 Eighth Circuit. See 509 U.S. 558- 2253(a)(2). U.S.C. (1993). 125 L.Ed.2d 441 Yet, if actually the Court had ruled on

V. whether the forfeiture of impli reasons, For all of these we reverse the Clause, cates Excessive Fines the ma judgment of the district court and remand jority’s analysis proceedings for further of this consistent with issue would be far opinion. more majority circumscribed. The must route, go however, long because the AND REVERSED REMANDED Supreme Court has never answered this KING, Judge, concurring Circuit in the Instead, question. the Alexander Court judgment: merely faulted Eighth Circuit lumping together respect my

With all due Alexander’s distinguished colleagues (un- I panel majority, write challenge Amendment to his sentence $350,000 9. Jalaram's conspiracy support imposition settlement in lieu of for- in the even of not, Bollin, feiting the Scottish Inn does as Jalaram this combined fine. 264 F.3d at Cf. contends, "grossly (upholding render the total $1.2 million forfeiture as Rather, disproportional.” the seriousness of for a serious offense carried $500,000). Jalaram’s offense and its central involvement a maximum fine of 358 Cir.1997) (10th matter of law (holding as Punishments Unusual the Cruel and

der (under “can nev proceeds criminal forfeiture Clause) challenge that and his forfeiture excessive”); Clause). v. constitutionally er be Smith See id. Fines the Excessive (7th States, 879, 882 Cir. that de- United 76 F.3d remedy To 1996) proceeds that forfeiture of (holding the forfeiture fect, remanded the Court hardly punishment”).1 termed could “can be Eighth Circuit order so analy- Fines Clause Excessive conduct the majority today departs from these re- See id. On in the first instance. sis that the forfeiture of authorities and rules simple con- mand, that court reached comply proceeds criminal must with “Forfeiture today: that I advance clusion justifies It Excessive Fines Clause. punish- cannot be considered proceeds of by clinging propositions to two departure thus, the excessive ment, subject First, majority I deem incorrect. the owner clause, simply parts it fines as challenged forfeiture here states activity.” criminal Unit- from the fruits of ” ‘remedial,’ it appear “does not because Alexander, 32 F.3d ed States purpose the remedial of does serve Austin, (8th Cir.1994); also see compensating the Government for loss. (“[A] fine that n. 113 S.Ct. 2801 majority sup- Ante at 354. The offers cannot purposes remedial be purely serves conclusion, any nor does exist. port for this event.”). any considered ‘excessive’ Circuit, example, per- has The Seventh of our sister courts of Several other suasively described how similarly concluded that the appeals have proceeds criminal is “remedial”: can never be exces consid- [Ajlthough Austin Court the Excessive Fines Clause. sive under ered the forfeiture of used to Betancourt, See, e.g., United drug trade under [21 facilitate Cir.2005) (“[T]he (5th F.3d 881(a)(4) (a)(7), § defen- U.S.C.] apply.”); Amendment does not United dants such as Smith have claimed at 22 Santa Prop. States v. Real Located reasoning applies as well items Drive, Barbara 881(a)(6) forfeited under Cir.2001) (“Because proceeds rep claim that drug transactions. The example ‘guilty paradigmatic resent the “proceeds” punish- forfeitures constitute of which has been property,’ the forfeiture they proportion ment if are out of traditionally regarded non-punitive, government’s society’s or loss. Can this Seventh, Eighth, and Tenth Cir follow the be so? No. and hold that the excessive fines cuits “no” is that Eighth Amendment does not The reason the answer is clause of the ”); proceeds forfeitures can never out of apply.... States v. One Parcel be by the Berry proportion Lot to the “loss” suffered Prop. Real Described as Estates, society.... government or hill Farm implicated the Exces- majority the Fifth Circuit’s 1. The criticizes Clause, (asserting unfairly Betancourt decision that it multiple sive Fines and followed the ), Bajakajian distinguished and the Ninth Cir- concluding that it authorities cited above Property opinion in Real Located at cuit's opinion cit- did not. And the Ninth Circuit's (because Santa Barbara Drive it never dis- Bajakajian’s predecessor de- ed and discussed Bajakajian). ante at 355 n. 7. cussed See cision, Austin, Supreme Court in which the criticism, view, my That is unwarranted. Baja- analysis conducted in laid out the same merely noted The Fifth Circuit in Betancourt kajian. Bajakajian light shed no on whether the

359 case, That being ly severally the forfeiture of and liable for the reasonably proceeds acquired drug dealing can proceeds foreseeable by obtained the con hardly punishment. be termed Forfei spiracy, regardless of the individual cocon drug proceeds tures of have been analo spirator’s share therein. See ante at 351 gized proceeds to the seizure of from the (citing McHan, United v. States robbery money of a bank. The is not (4th Cir.1996)). 1043 This principle robbers’, rightfully the and its seizure established, is well for would “[i]t be ab “merely places party lawfully surd to treat proceeds [the of a criminal protected quo financial status that he conspiracy] more leniently than the law enjoyed prior to launching illegal his treats a lawful partnership, all of whose scheme.” Tilley, United States v. 18 members are severally as well jointly (5th Cir.1994), F.3d 300 cert. de liable for partnership’s debts.” United nied, 573, 574, States v. Spano, 421 F.3d (1994). put 130 L.Ed.2d 490 Or another .2005). Cir way by another court: In outlining the inequities that could only drug

Not are proceeds inher- possibly result, the majority disregards the ently proportional to the damages principle joint and several by liability. illegal activity caused ... See but (“In ante at 355 a case where a acquires also one never defendant played a right proceeds, truly which minor include not role a conspiracy only cash but also property generated secured proceeds, vast joint and proceeds with the illegal activi- several liability for proceeds those might ty----[Forfeiture drug proceeds is result in a forfeiture order grossly dispro- not punishment, but is remedial portional to the individual defendant’s of- nature. added)). (emphasis problem is fense.” Salinas, United States v. that the “individual defendant’s offense” is (6th Cir.1995). not part of our analysis in the Smith, context conspiracy. McHan, of a majority F.3d at 882. The See of- response fers no compelling analy- F.3d 1043. The relevant individual de- sis. fendant’s offense here is the conspiracy proceeds itself. And the subject to forfei-

Second, the majority supports its exten- ture proceeds are the by obtained the con- sion of the reach of the Excessive Fines spiracy, every with by member thereof on the highlighting Clause supposed ineq- hook for reasonably pro- uities that could foreseeable result when the Govern- ceeds obtained conspiracy. ment seeks to Simply forfeit from a put, player large precedent, small in a under our and lucrative crimi- a forfeiture anal- nal conspiracy. But, ysis See ante at 354-56. does not turn on the individual role majority (or as the acknowledges, played by law Jalaram any conspira- other tor) this Circuit that coconspirators joint- are in a criminal conspiracy.2 characterization, Contrary majority’s appeal statute at issue in this the reason- —for see ante at n. I do not see our McHan ably foreseeable of the Mann Act having anything decision as to do with the conspiracy. light precedent, In of this I am constitutionality holding coconspirators focus, agree part unable to with the jointly severally liable majority's analysis, constitutional on the indi- Rather, proceeds. McHan stands for played by vidual conspira- role Jalaram in the proposition jointly that Jalaram is cy- severally liable—under the America, short, States split I from the Plaintiff-Appellee, Ninth, Seventh, Fifth, and Tenth Eighth, of whether the question on Circuits proceeds implicates of criminal forfeiture Boyd, Omar, Courtney Omar a/k/a of the Clause the Excessive Fines Defendant-Appellant. courts, those I believe Amendment.3 Like proceeds is of such the forfeiture 08-4088, Nos. 08-4090. remedial, thus not a “fíne” for purely Appeals, States Court of United Fines Clause. Excessive purposes Fourth Circuit. alone, I reason would reverse For that ruling that Govern- court’s district Argued: Oct. request contravened ment’s forfeiture April Decided: Eighth Amendment. I reach foregoing,

Pursuant majority, result but on a

the same as concur in the

different basis. I therefore

judgment of reversal. America,

UNITED STATES

Plaintiff-Appellee,

v. Wayne

Phillip GREEN, Defendant-

Appellant. Circuit, (or majority points appellate Ninth even 3. The to three deci offers refutation discussion) ruling subject contrary dis authorities sions MW Clause. cussed United States v. 3814 Excessive Fines See ante above. St., (9th F.3d Cir. 355 n. 7. The Eleventh Circuit and Sixth Cir Thurman 1999). such, con nothing these do not cuit decisions contain more than As authorities sought majority’s forfei passing done the classification of the observation “punitive,” opposed by ture the Government was to the Exces "remedial,” Browne, they do its con sive Fines United not sanction Clause. States (11th Cir.2007); holding cern fairness of individual with the Corrado, pro conspirators conspiracy's liable for Cir.2000). third, ceeds. And the decided

Case Details

Case Name: United States v. Jalaram, Inc.

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Apr 2, 2010

Citation: 599 F.3d 347

Docket Number: 08-5172

Court Abbreviation: 4th Cir.