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noting that "statutory forfeiture provisions are intended to serve a remedial rather than punitive purpose"
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No. 91-01368.
May 20, 1992.
Appeal from the Circuit Court, Lee County, William J. Nelson, J.
Bruce R. Conroy, City Atty., Marilyn W. Miller and Dolores D. Menendez, Asst. City Attys., Cape Coral, for appellant.
Peter D. Ringsmuth, Fort Myers, for appellee.
The City of Cape Coral appeals a circuit court order denying its petition for forfeiture of a 1986 Pontiac Firebird. We reverse.
The Pontiac currently is the property of appellee Terry Burgess. On July 13, 1990, a Cape Coral police officer observed Burgess sitting in the parked Pontiac holding a plastic bag of cocaine. Burgess entered a no contest plea to felony possession charges and was placed on probation. During the course of the criminal prosecution the city instituted forfeiture proceedings against the automobile.
The order being appealed declares that Burgess "was punished for the possession of . . . cocaine" and that "tak[ing] his vehicle would be additional punishment" in violation of constitutional double jeopardy provisions. The circuit court further found that the city "did not present any testimony regarding the costs of the investigation" as proof "that the forfeiture was necessary to make the government whole."
Although it is not cited in the order, it appears the circuit court relied primarily upon United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989). Halper was convicted of filing false claims for Medicare reimbursement. In addition to double damages the relevant statute assesses a $2,000 civil penalty for each separate false claim regardless of the amount of that claim. Because Halper had filed 65 claims, he was ordered to pay $130,000 even though the total amount of the overbilling was only $585. The Supreme Court found this penalty "so extreme and so divorced from the government's damages and expenses as to constitute punishment." 490 U.S. at 442, 109 S.Ct. at 1895, 104 L.Ed.2d at 497. The holding in Halper has been succinctly described as "a rule for the rare case . . . where a fixed-penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages he has caused." United States v. Furlett, 781 F. Supp. 536, 539 (N.D.Ill. 1991).
Halper is not a civil forfeiture case, a fact we deem dispositive of this appeal. As noted in United States v. A Parcel of Land With a Building Located Thereon at 40 Moon Hill Road, Northbridge, Massachusetts, 884 F.2d 41, 43 (1st Cir. 1989), "prior to Halper, the Supreme Court had specifically held that the doctrine of Double Jeopardy does not apply to a civil forfeiture proceeding." See United States v. One Assortment of 89 Firearms, 465 U.S. 354, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984).
In attempting to extend Halper to the facts of the present case, Burgess appears to attach great significance to occasional descriptions of forfeiture as a "penalty." See, e.g., State v. Crenshaw, 548 So.2d 223, 226 (Fla. 1989). However, we have previously found, and the greater weight of authority holds, that statutory forfeiture provisions are intended to serve a remedial rather than punitive purpose. DeLisi v. Smith, 423 So.2d 934 (Fla. 2d DCA 1982), rev. denied, 434 So.2d 887 (Fla. 1983) (forfeiture under RICO Act). A forfeiture proceeding constitutes "a civil, in rem action that is independent of any factually related criminal actions." United States v. One 1974 Porsche 911-S Vehicle, 682 F.2d 283, 285 (1st Cir. 1982). Accordingly, it does not "trigger the panoply of constitutional safeguards present in criminal actions." U.S. v. A Parcel of Land, 884 F.2d at 83.
The supreme court in Crenshaw upheld a civil forfeiture under facts quite similar to those in the case at bar. However, the central issue in Crenshaw was not double jeopardy, but whether it is necessary to prove any substantial nexus between the unlawful act and the property being forfeited. Justice Kogan, dissenting, questioned whether forfeiture was truly a "remedial sanction" in cases such as this and suggested that Halper poses potential problems for the government. Our research reveals only one other Florida case mentioning Halper, In re: The Forfeiture of one 1986 Pontiac Trans-Am Automobile, VIN 1G2FW87H8GN235105, 579 So.2d 926 (Fla. 4th DCA 1991), wherein the district court rejected the Halper argument on the authority of Crenshaw. However, Halper was not discussed by the majority in Crenshaw, probably because it had not been addressed by the trial or intermediate appellate court.
For these reasons, we hold that the circuit court erred in applying a double jeopardy analysis and in requiring the city to present proof of actual loss incurred in investigating Burgess's criminal misconduct. We reverse the order denying the city's petition for forfeiture of the Burgess vehicle and remand this case for a determination of that petition on the merits.
Reversed.
SCHOONOVER, C.J., and CAMPBELL, J., concur.
ALVAREZ, F. DENNIS, Associate Judge, concurring in part and dissenting in part with opinion.
I agree with the majority's conclusion that the circuit court erred in dismissing the forfeiture petition on double jeopardy grounds. However, I would not foreclose the possibility that the value of forfeited property can be so disproportionate to the seriousness of an offense as to constitute additional "punishment." I would permit Burgess, after remand, to present evidence on the question of disproportionality.
The most thorough discussion of this issue that I have found occurs in United States v. Certain Real Property and Premises Known as 38 Whalers Cove Drive, Babylon, N.Y., 954 F.2d 29 (2d Cir. 1992), which involved the forfeiture of an entire condominium in response to two minor cocaine sales. I believe it is appropriate to apply the Babylon analysis to forfeitures under Florida law.
Of course, the Halper/Babylon analysis applies only when the multiple sanctions of criminal punishment and civil forfeiture do not occur in a single proceeding. 954 F.2d at 34 n. 1.
Under Babylon the threshold question is whether substantial use was made of the forfeited property in order to commit the crime, "so that the property itself can be said to be `culpable' or an instrumentality of the crime." 954 F.2d at 36. If so, there is no presumption of punitive motive on the part of the government. If, however, the property is not an "instrumentality" the focus shifts, in a drug case, to the value of the forfeited property as contrasted with that of the drugs involved; the latter amount is described as "a rough measuring stick." Id. Whenever the value of the property is overwhelmingly disproportionate, there then arises a rebuttable presumption that the forfeiture is punitive in nature.
The Halper/Babylon inquiry also need not occur if the object of the forfeiture is to remove an instrumentality of crime from circulation, e.g., narcotics, illegal firearms, or other items of contraband.
No precise formula for determining disproportionality was advanced in Babylon, wherein the value of the condominium was roughly 300 times that of the drugs. However, the court did find the forfeiture "overwhelmingly disproportionate compared to the value of the relevant drug transactions." 954 F.2d at 37.
In the event such a showing is made, the burden then shifts to the government "to show that the forfeiture serves legitimate civil goals. The government may present its costs of investigation and detection, as well as other costs and damages attributable to the criminal misconduct of the [defendant]." 954 F.2d at 37. These costs are not limited to the expense of prosecuting the individual defendant, but may include a "reasonable allocation of more generalized enforcement costs." Id. However, the government may not "plac[e] full responsibility for the `war on drugs' on the shoulders of every individual [defendant]," particularly where "the individual [defendant's] violations are relatively minor." Id. Following the government's accounting, the trial court must then determine whether "the sanction is entirely assignable to civil purposes or whether part or all of the sanction is designed to serve punitive purposes." Id. If the government has not satisfied its burden of proof, a double jeopardy problem may exist.
Although the court in Babylon agreed that the forfeiture was disproportionately severe, and thus arguably punitive, it found no double jeopardy violation because of the "dual sovereignty" doctrine. See Heath v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985). The defendant's criminal conduct had been prosecuted in state court, whereas the forfeiture was instituted in federal court. A similar argument is attempted in the present case, which involves state criminal charges and forfeiture proceedings initiated by a municipal government. However, because local governments receive their ordinance authority from the states, they are not considered separate sovereigns for double jeopardy purposes. Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970).
In the present case the circuit court's order does not address the question of disproportionality, and it does not appear that Burgess attempted the threshold showing of disproportionate effect required by the three-prong Babylon test for double jeopardy. Accordingly, I concur in holding that the circuit court erred in requiring the city to present proof of actual loss incurred and in denying its petition for forfeiture for want of such proof. I dissent to the extent the majority holds that forfeiture cannot, even in extreme cases, represent a punitive rather than remedial measure and thereby trigger constitutional safeguards against double jeopardy.
The Babylon test can be rephrased as follows: (1) Was the forfeited property an "instrumentality" of the offense for which the defendant was charged or convicted? If not, (2) Is the value of the property grossly disproportionate to the value of contraband involved, or to the degree of harm wrought by the offense? If so, (3) Has the government demonstrated that its costs are roughly equivalent to the value of the property?
The "degree of harm" concept also suggests that, in extreme circumstances, a forfeiture could constitute "cruel and unusual punishment" or an "excessive fine" as proscribed by the Eighth Amendment. Such an argument was made — and quite thoroughly rejected — in Babylon, 954 F.2d at 38-39.