United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
October 28, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-30728
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RANDALL WALLACE,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
Before GARWOOD, JOLLY and BARKSDALE, Circuit Judges.
GARWOOD, Circuit Judge:
Randall Wallace (Wallace) appeals the forfeiture of his
airplane pursuant to his guilty-plea conviction for operation of an
unregistered aircraft. We affirm.
Facts and Proceedings Below
On May 28, 2001, Wallace was met by local sheriff’s department
officers after arriving at the Springhill, Louisiana airport in his
Cessna airplane. The local officers intercepted Wallace at the
request of United States Customs Service agents, who had been
investigating Wallace on suspicion of transporting illegal drugs.
Wallace was arrested for possession of a concealed weapon, but was
later found not guilty of this charge in state court. While at the
airport, Wallace consented to searches of his airplane and truck.
No contraband was found in these searches or in later searches by
the Customs Service. The Customs Service seized the airplane and
took it into custody for this further testing.
Wallace was unable to produce registration papers for the
airplane. According to a Customs Service agent’s affidavit,
Wallace told one of the local officers in Springhill that he had
registered the plane in his father’s name to conceal its ownership
during Wallace’s divorce. The most recent Federal Aviation
Administration (FAA) registration certificate for the plane was
issued to the Arkansas Forestry Commission in 1988. Forestry
Commission records indicate that the commission sold the plane to
Wallace in 1993.
On November 21, 2002, a three-count Indictment against Wallace
was filed in the U.S. District Court for the Western District of
Louisiana, Shreveport Division. Count one of the Indictment
charged Wallace with owning and knowingly and willfully operating
an unregistered aircraft in violation of 49 U.S.C. §
46306(b)(5)(A). Count two charged him with knowingly and willfully
operating the unregistered aircraft in violation of 49 U.S.C. §
2
46306(b)(6)(A).1 Each offense was alleged to have been committed
“on or about May 28, 2001, in the Western District of Louisiana.”
Count three sought forfeiture of Wallace’s airplane pursuant to 49
U.S.C. § 46306(d)(1), which allows forfeiture of an aircraft “whose
use is related to a violation of subsection (b).” 49 U.S.C. §
46306(d)(1). On April 2, 2003, Wallace pleaded guilty to count one
pursuant to a plea agreement in which the government agreed to
dismiss count two.
A bench trial on the forfeiture count was held on April 9,
2003, at which the district court ordered the parties to brief the
issue of whether forfeiture of the airplane would violate the
Excessive Fines Clause of the Eighth Amendment under the Supreme
Court’s holding in United States v. Bajakajian, 118 S.Ct. 2028
(1998). The presentence investigation report indicated that
Wallace had no criminal history and that there was no applicable or
analogous Sentencing Guideline for his offense. On July 10, 2003,
the district court sentenced Wallace to one year of unsupervised
probation and a special assessment of one hundred dollars for the
guilty-plea conviction under count one of the Indictment, and
ordered forfeiture of the airplane.
Discussion
1
Subsection (b)(5)(A) applies to the owner of the aircraft, whether he
operates the aircraft himself, attempts to operate it, or allows someone else to
operate it. 49 U.S.C. § 46306(b)(5)(A). Subsection (b)(6)(A) applies to one who
operates or attempts to operate the aircraft, whether or not he owns it. 49
U.S.C. § 46306(b)(6)(A). Because Wallace owned the airplane and operated it
himself, he was chargeable under both subsections.
3
I. Standard of Review
We review a district court’s findings of fact following a
bench trial for clear error, and its conclusions of law de novo.
Am. Int’l Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d
254, 260 (5th Cir. 2003). Whether the forfeiture is excessive
under the Eighth Amendment is a question of law we review de novo.
Bajakajian, 118 S.Ct. at 2037 & n.10; United States v. Brown, 250
F.3d 907, 913 (5th Cir. 2001).
II. The Supreme Court’s Excessiveness Standard From Bajakajian
The defendant in Bajakajian attempted to carry more than
$350,000 out of the United States without reporting the currency as
required by federal law for amounts over $10,000. Bajakajian, 118
S.Ct. at 2031; 31 U.S.C. § 5316(a). Federal law also requires a
sentencing court to order forfeiture of any property involved in a
violation of the reporting requirement. Bajakajian, 118 S.Ct. at
2032; 18 U.S.C. § 982(a)(1). The maximum fine under the Sentencing
Guidelines for the defendant’s reporting offense was $5000.
Bajakajian, 118 S.Ct. at 2032. The Supreme Court held that
forfeiture of the entire $357,144 involved would violate the
Excessive Fines Clause. Id. at 2029–30.
More generally, the Court held that “a punitive forfeiture
violates the Excessive Fines Clause if it is grossly
disproportional to the gravity of a defendant’s offense.” Id. at
2036. In arriving at the “grossly disproportional” standard, the
4
Court found two considerations “particularly relevant”: 1) “that
judgments about the appropriate punishment for an offense belong in
the first instance to the legislature,” and 2) “that any judicial
determination regarding the gravity of a particular criminal
offense will be inherently imprecise.” Id. at 2037. The Court
noted that “[b]oth of these principles counsel against requiring
strict proportionality between the amount of a punitive forfeiture
and the gravity of a criminal offense.” Id.
With respect to the defendant’s currency reporting violation,
the Court stated that the crime was “solely a reporting offense,”
and that because the defendant was not found to have been involved
in other illegal activities such as drug trafficking, money
laundering, or tax evasion, he did not “fit into the class of
persons for whom the statute was principally designed.” Id. at
2038. The Court noted that the maximum fine of $5000 under the
Sentencing Guidelines, while the statutory maximum fine was
$250,000, “confirm[ed] a minimal level of culpability.” Id. &
n.14. Furthermore, the Court stated that the harm caused by the
defendant’s violation was minimal, asserting that only the
government was affected, “and in a relatively minor way,” by the
failure to report the currency. Id. at 2039.
After Bajakajian, the Eleventh Circuit has attempted to
“translat[e] the gravity of a crime into monetary terms.” United
States v. 817 N.E. 29th Drive, 175 F.3d 1304, 1309 (11th Cir.
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1999). Noting the Supreme Court’s consideration in Bajakajian
giving deference to judgments of the legislature on punishment, the
Eleventh Circuit stated that “if the value of the forfeited
property is within the range of fines prescribed by Congress, a
strong presumption arises that the forfeiture is constitutional.”
Id. The court went on to say that “if the value of the property
forfeited is within or near the permissible range of fines under
the sentencing guidelines, the forfeiture almost certainly is not
excessive.” Id. at 1310. The district court referred to these
Eleventh Circuit statements at the bench trial on forfeiture of
Wallace’s airplane.
III. Proportionality of Wallace’s Airplane Forfeiture
In contrast to the situation in Bajakajian, as the district
court determined – and Wallace does not contest – there is no
applicable or analogous Sentencing Guideline for Wallace’s unlawful
operation of an unregistered airplane. Therefore the only current
legislative guidance as to the gravity of Wallace’s offense in
monetary terms is the statutory maximum fine of $250,000.2
Forfeiture of the $30,000 airplane is certainly not grossly
disproportionate as compared to this $250,000 statutory maximum.
2
49 U.S.C. § 46306(b) states that a violator “shall be fined under title
18, imprisoned for not more than 3 years, or both.” 49 U.S.C. § 46306(b). 18
U.S.C. § 3571 sets a maximum fine of $250,000 for any felony, unless a specific
statute prescribes otherwise (by specific reference to § 3571). 18 U.S.C. §
3571(b)(3) & (e). The aircraft registration violation of 49 U.S.C. § 46306(b)
is a Class E felony under 18 U.S.C. § 3559 because a prison term of up to three
years is specified. 18 U.S.C. § 3559(a).
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It may seem that comparison of Wallace’s airplane value to the
$250,000 statutory maximum is harsh in this case, since the
$250,000 maximum fine is a default provision for any felony rather
than a fine specifically provided by the statute defining Wallace’s
offense. See note 2, supra. Until 1994, the maximum fine under
the predecessor to 49 U.S.C. § 46306(b) was $15,000. 49 U.S.C.
app. § 1472(b)(2)(A) (repealed 1994). The 1994 amendment changed
the maximum fine language to read “fined under title 18" for the
stated purpose of “consistency with title 18.” 49 U.S.C. § 46306
Historical and Statutory notes (citing H.R. Rep. 103-180 (1993)).
There is no indication in the legislative history of the 1994
amendment that a substantial increase in the resulting fines was
intended. It may be, for example, that Congress referenced the
default fine provision in order to make the statute compatible with
future treatment under the Sentencing Guidelines.3
Even if the original $15,000 statutory maximum fine under the
predecessor statute is used for guidance, however, forfeiture of
Wallace’s airplane is not grossly disproportionate. The $30,000
value of the airplane differs from this maximum by only a factor of
3
The Sentencing Commission initially made clear that it could not
“comprehensively treat all regulatory violations in the initial set of
guidelines,” but planned to “address the less common regulatory offenses in the
future.” U.S. SENTENCING GUIDELINES MANUAL ch. 1, pt. A. sec. 4(f) (1987), reprinted
in U.S. SENTENCING GUIDELINES MANUAL § 1A1.1 editorial note (2003). The statement
that less common offenses would be addressed in the future was removed in a 1990
amendment, however. See U.S. SENTENCING GUIDELINES MANUAL § 1A1.1 editorial note
(2003).
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two.4 In Bajakajian, by contrast, the $357,000 forfeiture sought
by the government was over seventy times the maximum fine of $5000
under the Sentencing Guidelines. Finding the forfeiture of
Wallace’s airplane to be excessive would require imposing the kind
of strict proportionality that the Supreme Court expressly
disavowed in Bajakajian. Bajakajian, 118 S.Ct. at 2037.
Not only is the value of the forfeiture in the instant case
smaller than that at issue in Bajakajian, but we believe the
gravity of the offense is greater. The offense in Bajakajian was
a one-time transportation of currency out of the United States
without declaring it. In the instant case, by contrast, Wallace
owned the airplane for some seven years without registering it
before it was seized by the government. He argues in his brief
that “[t]he function of the airplane was a source of transportation
and joy to Wallace,” that “[t]he function that it [the airplane]
performed was that it was Wallace’s means of transportation and it
was his sole tangible property of any value that provided him his
joy in life. Flying is Wallace’s life,” and that “[a]ll he has
done with it is fly around the State of Arkansas and to Florida
with it for a vacation.[5] Wallace has been flying safely for
4
Wallace contended before sentencing that the airplane was worth $53,000,
and provided supporting documentation to the probation officer. Wallace’s
appellate brief uses the $30,000 figure, however. Even if the airplane is valued
at $53,000, our conclusion that the forfeiture is not prohibited by the Excessive
Fines Clause remains the same.
5
Indeed, the evidence shows Wallace flew the plane from Louisiana to
Florida on May 26, 2001, and from Florida to Louisiana on May 28, 2001.
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years.” Obviously, he was operating an unregistered airplane on
an ongoing basis, as opposed to the one-time violation in
Bajakajian. Wallace does not argue that his failure to register
the airplane was any sort of mere spur of the moment lapse in
judgment or misplaced desire to avoid some bureaucratic delay on a
single occasion (much less that there was any true inadvertence).
In fact, Wallace testified that he had owned four other airplanes
and had registered all of them. Furthermore, the fact that the
most recent registration certificate on file for the airplane was
with the Arkansas Forestry Commission increased the damage to the
integrity of federal aviation safety and security systems caused by
Wallace’s operation of an unregistered plane. As noted in a
federal agent’s affidavit submitted by the government, airplanes
registered to natural resource agencies are able to engage in low-
level flight, below radar coverage, without attracting a law
enforcement response, since such agencies are known to conduct low-
level flights for research and survey purposes.
Wallace argues that he is similar to the defendant in
Bajakajian in that he is not the type of offender (namely, a drug
trafficker) at whom the aircraft registration statute is targeted.
It is true that the 1988 introduction of criminal penalties and the
forfeiture provision appears to have been motivated by drug
enforcement concerns. See 134 Cong. Rec. 22,632 (1988). However,
Congress clearly intended that forfeiture apply for violations not
9
involving drug trafficking, as well. The forfeiture provision was
described in House debate as “giv[ing] law enforcement agencies the
authority to seize aircraft when there are violations of the new
criminal provisions whether controlled substances are involved or
not.” Id. That drug traffickers are not the only target of the
statute Wallace was charged under is further evidenced by the
existence of a separate subsection of the statute providing a
longer maximum prison term when controlled substances are involved.
49 U.S.C. § 46306(c)(2).
Wallace further invokes other factors that courts have gleaned
from Bajakajian, such as related illegal activities and the benefit
reaped by the claimant contesting the forfeiture. See United
States v. Lot Numbered One of Lavaland Annex, 256 F.3d 949, 958
(10th Cir. 2001); United States v. 3814 NW Thurman Street, 164 F.3d
1191, 1197–98 (9th Cir. 1999). Even to the extent that some of
these factors may suggest a relatively low gravity for Wallace’s
offense, this does not make forfeiture of his airplane excessive.
A lower offense gravity would suggest comparison of the forfeiture
value to a fine level lower than the statutory maximum, as was done
in Bajakajian by considering the Sentencing Guidelines’ maximum
fine. Bajakajian, 118 S.Ct. at 2038–39. But even when we compare
Wallace’s forfeiture to a reduced fine level such as the $15,000
maximum fine for the predecessor statute, the amount of the
forfeiture is simply not grossly disproportional.
10
Conclusion
The forfeiture of Wallace’s airplane is not grossly
disproportional to the gravity of his offense. Therefore, the
forfeiture is not in violation of the Excessive Fines Clause, and
the district court’s judgment is accordingly
AFFIRMED.
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