United States v. United States Currency in the Amount of One Hundred Forty-Five Thousand, One Hundred Thirty-Nine Dollars , 18 F.3d 73 ( 1994 )

VAN GRAAFEILAND, Circuit Judge:

Joseph Efiong Etim appeals from a summary judgment of the United States District Court for the Eastern District of New York (Weinstein, J.) declaring $145,139 in currency and $150 in travelers checks forfeited to the United States. See 803 F.Supp. 592 (E.D.N.Y.1992). We affirm.

On March 3, 1990, Etim went to the John F. Kennedy International Airport with the intention of boarding a plane that would take him and the above-described funds to Lagos, Nigeria. However, no one was to know about the funds except Etim — they were concealed in boxes of flour. When Etim was informed by a customs agent that he would have to declare any amount in excess of $10,000 that he was carrying, he stated that he was carrying only $80, and he reported that amount on Customs Publication Form 503. When the customs agents searched Etim’s luggage, they discovered the concealed money and travelers checks and seized them.

Section 5316 of Title 31 United States Code provides in substance that a person who transports more than $10,000 in monetary instruments outside the United States must file a report that contains pertinent information relative to the funds and the person transporting them. Section 5322 of Title 31 prescribes criminal penalties for violations of section 5316. On April 2, 1990, Etim pled guilty to violating sections 5316 and 5322 in that he transported and was about to transport the monetary instruments out of the United States without filing the specific report. He was sentenced to five months imprisonment followed by three years of supervised release, and fined $5,000 plus a special assessment of $50.

Section 5317(e) of Title 31 reads in pertinent part as follows:

If a report required under section 5316 with respect to any monetary instrument is not filed (or if filed, contains a material omission or misstatement of fact), the instrument and any interest in property, including a deposit in a financial institution, traceable to such instrument may be seized and forfeited to the United States Government.

It is a section 5317(c) forfeiture that is at issue herein.

Etim’s principal contention on appeal, predicated largely on United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), is that the district court’s forfeiture order, which followed his conviction, violated the double jeopardy clause of the Fifth Amendment. We disagree.

Because Congress clearly intended a section 5317(c) forfeiture to be civil in nature (see caption to section 1355 of the Anti-Drug Abuse Act of 1986, 100 Stat. 3207-22), “ ‘ “[o]nly the clearest proof’ ’ that the purpose and effect of the forfeiture are punitive will suffice to override Congress’ manifest preference for a civil sanction.” United States v. One Assortment of 89 Firearms, 465 U.S. 354, 365, 104 S.Ct. 1099, 1106, 79 L.Ed.2d 361 (1984) (quoting United States v. Ward, 448 U.S. 242, 249, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742 (1980) (quoting in turn Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 1376, 4 L.Ed.2d 1435 (1960))). Such proof is lacking herein. “[F]orfeiture is not tied to or dependent upon the wrongdoing of the owner of the monetary instruments.” United States v. Six Thousand Seven Hundred Dollars ($6700.00) in United States Currency, 615 F.2d 1, 3 (1st Cir.1980). Indeed, the government is not required to prove in a civil action such as the instant one “that the person who allegedly failed to comply with the reporting requirement of § 5316(a) either had actual knowledge of, or intended ‘willfully’ to violate, that requirement.” United States v. $359,500 in United States Currency, 828 F.2d 930, 934 (2d Cir. 1987). In accordance with traditional concepts of forfeiture, Congress has made the undeclared money the culprit. See United States v. McCaslin, 959 F.2d 786, 788 (9th Cir.) (“The proceeding is directed against the property and not at an individual”), cert. denied, — U.S. -, 113 S.Ct. 382, 121 L.Ed.2d 292 (1992); see also United States v. $2,490.00 in U.S. Currency, 2,610,000.00 in Mexican Pesos, 825 F.2d 1419, 1420 (9th Cir.1987); United States v. $57,480.05 United States Currency and Other Coins, 722 F.2d 1457, 1458 (9th Cir.1984).

We agree with the district court that the property, in this ease the currency, was forfeitable because it was an instrument of the crime. It was the “means” by which the crime was committed. See Abel v. United States, 362 U.S. 217, 237, 80 S.Ct. 683, 696, 4 L.Ed.2d 668 (1960) (documents used by illegal alien considered instruments or means for accomplishing illegal status and thus proper subject for search incident to arrest as instrumentalities of crime); Harris v. United States, 331 U.S. 145, 153-55, 67 S.Ct. 1098, 1102-04, 91 L.Ed. 1399 (1947) (can-celled checks could be properly seized as instrumentality and means of crime of forgery; draft cards could be seized as instrumentality and means by which crime is committed when possession of draft cards at issue was itself a crime), overruled on other grounds by Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). It was used in perpetrating the crime. See United States v. Rabinowitz, 339 U.S. 56, 64 n. 6, 70 S.Ct. 430, 434 n. 6, 94 L.Ed. 653 (1950) (objects utilized in perpetrating a crime for which an arrest is made are properly subject to seizure and are to be distinguished from mere evidentiary materials), overruled on other grounds by Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Indeed, it was the very sine qua non of the crime. See also United States v. United States Currency in Amount of Twenty Three Thousand Four Hundred Eighty One Dollars, ($23,481), More or Less, 740 F.Supp. 950 (E.D.N.Y.1990).

Once the offense attaches to the res (here, the currency), ... it is the res that is primarily considered the offender.

Id. at 954. Clearly, it is much more accurate to describe the currency as the means by which the crime was committed than it would be to so describe a house from which drugs had been sold or an automobile in which they had been transported. If, as we have held, a house can be considered an instrumentality of the crime, see United States v. Certain Real Property & Premises Known As 38 Whalers Cove Drive, 954 F.2d 29, 36 (2d Cir.), cert. denied, — U.S. -, 113 S.Ct. 55, 121 L.Ed.2d 24 (1992), we would be blinking reality if we held that the money in the instant case was any less an instrumentality. For other cases treating realty as an instrumentality of the crime, see United States v. Cullen, 979 F.2d 992, 994 (4th Cir.1992); McCaslin, 959 F.2d 786. In short, we hold that appellant’s reliance on Halper is misplaced. As the court in McCaslin accurately stated:

Halper has no application to the very ancient practice by which instrumentalities of a crime may be declared forfeit to the government. The forfeiture of such in-strumentalities is “‘independent of, and wholly unaffected by any criminal proceeding in personam.’”

Id. at 788 (citations omitted).

We recognize quite properly that the flow of money and other goods across the nation’s borders is a matter of legitimate, non-prosecutorial concern to the government, which spends substantial sums in regulating such movement. See United States v. Dichne, 612 F.2d 632, 640 (2d Cir.1979), cert. denied, 445 U.S. 928, 100 S.Ct. 1314, 63 L.Ed.2d 760 (1980). Forfeiture of goods moving across the border in violation of governmental regulations long has been recognized as enforceable by civil proceedings. One Lot Emerald Cut Stones & One Ring v. United States, 409 U.S. 232, 237, 93 S.Ct. 489, 493, 34 L.Ed.2d 438 (1972) (quoting Helvering v. Mitchell, 303 U.S. 391, 400, 58 S.Ct. 630, 633, 82 L.Ed. 917 (1938)). The forfeiture involves the very goods covered by the regulation and it is remedial rather than punitive in nature.

There is authority to the effect that double jeopardy can be invoked regardless of whether the prosecution or the forfeiture comes first. See United States v. Amiel, 995 F.2d 367, 370 (2d Cir.1993) (citing United States v. Mayers, 897 F.2d 1126, 1127 (11th Cir.), cert. denied, 498 U.S. 865, 111 S.Ct. 178, 112 L.Ed.2d 142 (1990)). We may expect, therefore, that application of the Halper rule to section 5316 cases would discourage the remedial use of section 5317(c) forfeitures. We doubt that this is what Congress intended or the Constitution requires.

We find no merit in Etim’s claim of an Eighth Amendment violation based on an alleged excessive fine. Putting aside the question whether the forfeiture should be considered a fine, it clearly was not excessive. Section 5321(a)(2) of Title 31 provides that the Secretary of the Treasury may impose a civil penalty on a person not filing a report that “may not be more than the amount of the monetary instrument for which the report was required.” The section continues: “A civil penalty under this paragraph is reduced by an amount forfeited under section 5317(b) [now section 5317(c) ] of this title.” Congress clearly intended that the liability for failure to declare, whether by forfeiture or fine, can be equal to the amount of the monetary instrument involved. Moreover, the Secretary is empowered to remit any portion of the forfeiture or civil penalty that he deems proper. Section 5321(e); see United States v. Huber, 603 F.2d 387, 397 (2d Cir.1979) (discussing district court’s power to reduce award under 18 U.S.C. § 1963), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980); see also Halper, 490 U.S. at 446, 109 S.Ct. at 1900 (quoting One Lot Emerald Cut Stones, 409 U.S. at 237, 93 S.Ct. at 493).

We likewise reject appellant’s claim of unconscionable delay. The currency involved herein was seized by the government on March 3, 1990, and the forfeiture action was begun on December 13, 1991, twenty-one months later. However, three days after the currency was seized, the Customs Service informed Etim by letter that he had the right to petition for return of the currency and instructed him concerning the information to be included in the petition. Approximately one month thereafter, Etim’s attorney informed the Service by letter that Etim wanted to recover the funds, but the attorney did not send the information that the Service required for return of the funds. Neither did he seek a judicial hearing to require either the return of the funds or the institution of a foreclosure proceeding. The district court measured the delay by the four-part test of Barker v. Wingo, 407 U.S. 514, 530-33, 92 S.Ct. 2182, 2192-93, 33 L.Ed.2d 101 (1972), as adopted by the Supreme Court in United States v. Eight Thousand Eight Hundred & Fifty Dollars ($8,850) in United States Currency, 461 U.S. 555, 564-65, 103 S.Ct. 2005, 2012, 76 L.Ed.2d 143 (1983), and concluded that the delay was not unreasonable. See 803 F.Supp. at 600-01. There was no error here.

The judgment of the district court is affirmed.