The Constitution, Forfeiture, Proportionality and Instrumentality: United States ? Bajakajian The United States Supreme Court Tries Again
| Published date | 01 February 1998 |
| Date | 01 February 1998 |
| DOI | https://doi.org/10.1108/eb027156 |
| Pages | 319-325 |
| Author | Fletcher N. Baldwin |
| Subject Matter | Accounting & finance |
Journal of Money Laundering Control — Vol. 1 No. 4
The Constitution, Forfeiture, Proportionality and
Instrumentality: United States ν Bajakajian
The United States Supreme Court Tries Again
Fletcher N. Baldwin, Jr
UNITED STATES V HOSEA
BAJAKAJIAN1
On 9th June, 1994, Mr Hosea Bajakajian and his
wife were preparing to board an Alitalia Airways
flight departing Los Angeles bound for Syria (Mr
Bajakajian's native land) and Cyprus via Rome.
Prior to boarding, Mr Bajakajian was stopped by
US Customs officers. Mr Bajakajian had not filed
a currency report with customs stating that he was
leaving the USA with more than $10,000 in his
possession, a perfectly lawful act, but one requiring
a report. When stopped, Mr Bajakajian was asked
whether he had in excess of $10,000. He replied
'No'.
The lie would have worked, but for the fact
that this particular Alitalia Airways flight was tar-
geted by customs officers who were looking for
hidden currency. The trained canine assigned to
the task had alerted officers to Bajakajian's luggage.
In the luggage officers found $230,192. Mr Baja-
kajian was given the opportunity to declare the US
currency excess, but he stuck by his denial. A
search of his personal belongings, as well as his
wife's revealed an additional $127,012. Further
searches brought the total to $357,144.2
The otherwise legal currency was seized and Mr
Bajakajian was arrested. Failure to provide a cur-
rency report when one is leaving the USA with
currency in excess of $10,000 is a violation of 31
US Code s. 5322(a), and can result in five years'
imprisonment, a fine not to exceed $250,000, and
is a predicate crime for 18 US Code s. 982(a)(1),
which authorises the forfeiture of 'any property
involved . . . in such offence'. Section 5317(c) also
provides for civil in rem forfeiture of any property
involved in a failure to report an offence. Mr Baja-
kajian pleaded guilty. At sentencing, the court then
ordered the return of all but $15,000. The signifi-
cant rationale adopted by the trial court was that
the seized funds, lawfully obtained by Mr Baja-
kajian, were disproportionate to Bajakajian's culp-
ability. The court invoked two US Supreme Court
cases:
Alexander ν United States3
(Alexander
I) and
Austin v United States4 wherein the Supreme Court
applied, under certain circumstances, the Excessive
Fines Clause of the Eighth Amendment to the
United States Constitution to determine if a for-
feiture (mainly an in rem forfeiture) was indeed
excessive. In
Bajakajian
(an in
personam
forfeiture)
the court noted that:
'. . . [T]he entire $357,144 at issue in the present
case is potentially forfeitable. However, a for-
feiture is unconstitutional unless it survives
scrutiny under the Excessive Fines Clause of the
Eighth Amendment. "The Excessive Fines
Clause limits the Government's power to extract
payments, whether in case or in kind, 'as
punishment for some offense.'" Austin ν United
States, [citations omitted] [holding that criminal
forfeiture is a form of monetary punishment
subject to the Eight Amendment's Excessive
Fines Clause] . . . Therefore, forfeiture in the
present case must be subjected to analysis under
the Excessive Fines Clause.
The Supreme Court, in Austin, declined to enu-
merate the factors to be considered in determin-
ing whether a forfeiture violates the Excessive
Fines Clause. [citations omitted]
[3] Pursuant to [the Ninth Circuit'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.
[Ibid.
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.' [citations omitted]5
Page 319
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