FILED
Oct 20 2016, 8:58 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Gregory F. Zoeller David W. Stone IV
Attorney General of Indiana Stone Law Office & Legal Research
Aaron T. Craft Anderson, Indiana
Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, October 20, 2016
Appellant-Plaintiff, Court of Appeals Case No.
27A04-1511-MI-1976
v. Appeal from the Grant Superior
Court 1
Tyson Timbs and a 2012 Land The Honorable Jeffrey D. Todd,
Rover LR2, Judge
Appellees-Defendants. Trial Court Cause No.
27D01-1308-MI-92
Mathias, Judge.
[1] The State of Indiana filed a complaint for forfeiture in Grant Superior Court
seeking to obtain a 2012 Land Rover LR2 owned by Tyson Timbs (“Timbs”).
The trial court ruled in favor of Timbs, and the State appeals, presenting one
Court of Appeals of Indiana | Opinion 27A04-1511-MI-1976 | October 20, 2016 Page 1 of 13
issue, which we restate as whether the trial court erred in concluding that
forfeiture of Timbs’s vehicle would constitute a constitutionally excessive fine.
[2] We affirm.
Facts and Procedural History
[3] In January 2013, Timbs purchased a Land Rover LR2 (“Land Rover”) for the
sum of $42,058.30 from a dealer in Indianapolis. Timbs paid for the Land
Rover with life insurance policy proceeds that he received following the death
of his father. Thereafter, Timbs began to use this vehicle to drive from Marion,
Indiana to Richmond, Indiana for the purposes of purchasing heroin. Timbs
also used the Land Rover to transport the heroin back to Richmond.
[4] In May 2013, a confidential informant (“CI”) told a member of the Joint Effort
Against Narcotics (“JEAN”) team1 that he could purchase heroin from Timbs.
The police then set up a controlled buy, and on May 6, 2013, an undercover
detective and the CI met Timbs at an apartment.2 The detective gave the CI the
purchase money, and the CI went inside the apartment with Timbs and
returned with two grams of heroin that he had purchased for the previously
agreed-to price of $275.
1
The JEAN team is composed of members from the Grant County Sheriff’s Department, the Grant County
Prosecutor’s Office, and the Marion Police Department.
2
This apartment was apparently not Timbs’s residence. See Tr. pp. 27-28.
Court of Appeals of Indiana | Opinion 27A04-1511-MI-1976 | October 20, 2016 Page 2 of 13
[5] The police set up another controlled buy on May 22, 2013, to take place at a
local gas station. This time, the undercover detective purchased two grams of
heroin from Timbs for a price of $260. After this transaction, the detective
spoke with Timbs about arranging yet another purchase of heroin. However, on
the day this controlled buy was set to take place, the police instead apprehended
Timbs during a traffic stop.
[6] On June 5, 2013, the State charged Timbs with two counts of Class B felony
dealing in a controlled substance and one count of Class D felony conspiracy to
commit theft. On August 5, 2013, the State filed a complaint for forfeiture,
seeking to obtain Timbs’s Land Rover.
[7] On April 12, 2015, Timbs entered into a plea agreement with the State whereby
he agreed to plead guilty to one count of Class B felony dealing in a controlled
substance and Class D felony theft in exchange for the State dismissing the
remaining charges. The following day, the trial court accepted the plea and
sentenced Timbs pursuant to the agreement to six years, with one year executed
in community corrections and five years suspended to probation. Pursuant to
the plea agreement, Timbs also agreed to reimburse the JEAN team $385 for
the cost of the investigation and pay a drug abuse, prosecution, and interdiction
fee of $200; court costs of $168; a bond fee of $50; and a $400 certified court
program fee after undergoing a drug and alcohol assessment with the probation
department. The complaint for forfeiture remained pending.
Court of Appeals of Indiana | Opinion 27A04-1511-MI-1976 | October 20, 2016 Page 3 of 13
[8] On July 15, 2015, the trial court held a hearing on the forfeiture complaint. At
the hearing, Timbs argued that forfeiture of his Land Rover, which he claimed
was worth over $40,000, constituted an excessive fine, given that he had only
dealt drugs twice, that he was only convicted for one count of dealing, and that
the maximum statutory fine for his crime was $10,000. The trial court took the
matter under advisement and, on August 28, 2015, entered an order in favor of
Timbs, which provided in relevant part:
7. The State now seeks a judgment against the Defendant for
forfeiture of the Land Rover; a vehicle that just five (5) months
before it was seized had a fair market value of almost four (4)
times the maximum monetary fine of $10,000.
8. The Court finds that the judgment of forfeiture sought by
the State violates the Excessive Fines Clause of the Eighth
Amendment of the United States Constitution. The amount of
the forfeiture sought is excessive and is grossly disproportional to
the gravity of the Defendant’s offense.
9. While the negative impact on our society of trafficking in
illegal drugs is substantial, a forfeiture of approximately four (4)
times the maximum monetary fine is disproportional to the
Defendant’s illegal conduct.
Judgment is entered in favor of the Defendant and against the
State. The Land Rover LR2, at issue, is ordered released to the
Defendant immediately.
Appellant’s App. pp. 15-16. The State filed a motion to correct error on
September 14, 2015, claiming for the first time that the trial court should have
Court of Appeals of Indiana | Opinion 27A04-1511-MI-1976 | October 20, 2016 Page 4 of 13
ordered a sale of the Land Rover from which a non-excessive fine could be
deducted.3 The trial court held a hearing on the State’s motion to correct error
on October 14, 2015, and entered an order denying the State’s motion on
October 21, 2015. The State now appeals.
Standard of Review
[9] At trial, the State bore the burden of establishing the requirements of forfeiture.
See Ind. Code § 34-24-1-4(a). Thus, the State is appealing from a negative
judgment. See Merrillville 2548, Inc. v. BMO Harris Bank N.A., 39 N.E.3d 382,
390-91 (Ind. Ct. App. 2015), reh’g denied, trans. denied. On appeal, we will not
reverse a negative judgment unless it is contrary to law. Id. Here, the State
argues that the trial court erred in determining that the forfeiture of the Land
Rover constituted an excessive fine. This court has held that forfeitures are
subject to the Excessive Fines Clause of the Eighth Amendment to the United
States Constitution. $100 and a Black Cadillac v. State, 822 N.E.2d 1001, 1011
(Ind. Ct. App. 2005), trans. denied (citing Austin v. United States, 509 U.S. 602,
609-10 (1993)).4 We review the trial court’s conclusion regarding the
3
The State does not reiterate this claim on appeal, and even if it did, it is well settled that an issue may not be
presented for the first time in a motion to correct error. Van Winkle v. Nash, 761 N.E.2d 856, 859 (Ind. Ct.
App. 2002).
4
The State claims that there is a question as to whether the Excessive Fines Clause of the Eighth
Amendment is applicable to the states via the Fourteenth Amendment. The United States Supreme Court has
yet to hold that the Excessive Fines Clause is applicable to the States. See Browning-Ferris Indus., Inc. v. Kelco
Disposal, Inc., 492 U.S. 257, 276 (1989) (“We shall not decide whether the Eighth Amendment's prohibition
on excessive fines applies to the several States through the Fourteenth Amendment.”). But this court held in
$100 and a Black Cadillac that the Excessive Fines Clause did apply to Indiana’s forfeiture statutes. 822 N.E.2d
at 1011. We see no reason to disagree with our prior opinion. We also note that the Indiana Constitution
contains its own provision against excessive fines. See Ind. Const. art. 1, sec. 16 (“Excessive fines shall not be
Court of Appeals of Indiana | Opinion 27A04-1511-MI-1976 | October 20, 2016 Page 5 of 13
excessiveness of a fine de novo. United States v. Bajakajian, 524 U.S. 321, 336
(1998).
Discussion and Decision
In rem forfeiture is an ancient concept under which courts
obtained jurisdiction over property when it was virtually
impossible to seek justice against property owners guilty of
violating maritime law because they were overseas. Civil
forfeiture traces to ancient Roman and medieval English law;
both made objects used to violate the law subject to forfeiture to
the sovereign. Civil forfeiture is no longer tethered to difficulties
in obtaining personal jurisdiction over an individual. It now
serves as one of the most potent weapons in the judicial
armamentarium[.] Civil forfeiture is a leading method for
imposing economic sanctions against narcotics traffickers.
Today, all states have statutory provisions for some form of asset
forfeiture, and there are more than four hundred federal forfeiture
statutes relating to various federal crimes. An important feature
of many of these statutes is characterization of the process as civil
forfeiture under which (by contrast to criminal forfeiture) a
property owner need not be found guilty of a crime—or even
charged—to lose permanently their cash, car, home or other
property. The relative ease of effecting such forfeiture and the
disposition of the assets have become a matter of public note.
Serrano v. State, 946 N.E.2d 1139, 1141 (Ind. 2011) (citations omitted).
[10] The Eighth Amendment provides, “Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S.
imposed). Because neither side addresses the Indiana Constitution, we base our opinion on the federal
Excessive Fines Clause.
Court of Appeals of Indiana | Opinion 27A04-1511-MI-1976 | October 20, 2016 Page 6 of 13
Const. amend. VIII. At the time the Constitution was adopted, “the word ‘fine’
was understood to mean a payment to a sovereign as punishment for some
offense.” $100 and a Black Cadillac, 822 N.E.2d at 1011 (quoting Bajakajian, 524
U.S. at 327). Accordingly, the Excessive Fines clause of the Eighth Amendment
“limits the government’s power to extract payments, whether in cash or in kind, as
punishment for some offense.” Id. (quoting Bajakajian, 524 U.S. at 328)
(emphasis added) (internal quotation marks omitted). As noted above, this
court has already held that forfeitures in Indiana are subject to the Excessive
Fines Clause. Id. (citing Austin, 509 U.S. at 622).
[11] To determine whether a fine or forfeiture is “excessive,” for purposes of the
Excessive Fines Clause, we consider whether the amount of the forfeiture bears
“some relationship to the gravity of the offense that it is designed to punish.” Id.
(quoting Bajakajian, 524 U.S. at 334). A punitive forfeiture violates the
Excessive Fines Clause “if it is grossly disproportional to the gravity of a
defendant’s offense.” Id. (quoting Bajakajian, 524 U.S. at 334).5
[12] Here, there is no question that the nature of Timbs’s offense was serious. He
committed a Class B felony. However, our General Assembly has determined
that a Class B felony should be punishable by a maximum fine of $10,000.
Here, the evidence before the trial court was that Timbs’s vehicle was worth
5
The State claims that the Supreme Court in Bajakajian “allow[ed] a forfeiture three times the applicable
fine” of $5,000. This is incorrect. The Supreme Court was abundantly clear that the only question before it
was whether forfeiture of the entire amount of cash at issue, $357,144, was proper. See Bajakajian, 524 U.S. at
339 n.11.
Court of Appeals of Indiana | Opinion 27A04-1511-MI-1976 | October 20, 2016 Page 7 of 13
approximately four times the amount of the maximum fine. Although we do not
suggest that forfeiture of any asset valued over the maximum fine is
automatically a violation of the Excessive Fines Clause, it is instructive to our
analysis that the value of the asset sought by the State is well in excess of the
maximum fine. Moreover, it is undisputed that the Land Rover was not
purchased with the proceeds of any criminal behavior; it was purchased with
life insurance proceeds.
[13] The State notes that an asset may be forfeited even if the State does not convict
the owner of the criminal charge. See Katner v. State, 655 N.E.2d 345, 348 (Ind.
1995) (noting that a conviction on the underlying criminal activity is not a
prerequisite for forfeiture). Thus, the State argues, it could have sought
forfeiture of the Land Rover even if Timbs had not been convicted. However,
this does not negate the fact that our General Assembly has set the maximum
fine for the crime for which Timbs was convicted at $10,000, whereas the value
of the Land Rover was upwards of $40,000.
[14] We also note that financial burdens had already been imposed on Timbs when
he pleaded guilty. Pursuant to his plea agreement, Timbs agreed to reimburse
the JEAN team $385 for the cost of the investigation and pay a drug abuse,
prosecution, and interdiction fee of $200; court costs of $168; a bond fee of $50;
and a $400 certified court program fee. Notably, the trial court imposing the
sentence found no need to impose any fine, much less the maximum fine of
$10,000.
Court of Appeals of Indiana | Opinion 27A04-1511-MI-1976 | October 20, 2016 Page 8 of 13
[15] The State also argues that the evidence before the trial court was that Timbs
committed criminal acts other than the one for which he was convicted. This
may be true. However, the complaint for forfeiture referred only to May 31,
2013.6 If the State wished to seek forfeiture of the Land Rover based on Timbs’s
other criminal acts, it should have done so more clearly in its forfeiture
complaint. Moreover, even considering these other acts, we note that the only
evidence before the trial court was that Timbs sold heroin twice, both times as a
result of controlled buys. The remaining times he transported heroin, it was
apparently for his own use. The trial court was free to consider these
circumstances in making its determination.
[16] We also find the State’s citation to United States v. Aleff, 772 F.3d 508 (8th Cir.
2014), to be unpersuasive. In Aleff, the defendants were convicted of conspiracy
to defraud the federal government and ordered to pay almost $304,000 in
restitution. Thereafter, the federal government brought suit against the
6
The complaint set forth in relevant part:
1. On or about May 31, 2013, officers of the Plaintiff, J.E.A.N. Team Drug Task Force,
seized from the Defendant, TYSON TIMBS, One (1) 2012 Land Rover LR2 . . . in Grant
County, Indiana.
2. On said date and at said place, the Defendant, TYSON TIMBS, had in his possession,
the above described vehicle, said vehicle had been furnished or intended to be furnished by
Defendant, TYSON TIMBS, in exchange for an act that is in violation of a criminal statute,
or used to facilitate any violation of a criminal statute or is traceable as proceeds of the
violation of a criminal statute under Indiana Law, as provided in I.C. 34-24-1-1.
3. The Defendant, TYSON TIMBS, is the owner of the vehicle.
WHEREFORE, the Plaintiffs demand judgment against the Defendant for forfeiture of
vehicle, for the delivery of said vehicle upon forfeiture as provided for in I.C. 34-24-1-1, for
reimbursement of law enforcement costs as provided by statute, and for all other relief just
and proper in the premises.
Appellant’s App. p. 14.
Court of Appeals of Indiana | Opinion 27A04-1511-MI-1976 | October 20, 2016 Page 9 of 13
defendants under the False Claims Act, and the District Court awarded the
government treble damages and statutory penalties of over $1,300,000. On
appeal, the Eight Circuit Court of Appeals held that this was not grossly
disproportionate under the Excessive Fines Clause. Aleff, 772 F.3d at 512-13. In
so holding, the court noted that the defendants’ scheme to defraud the
government was extensive and took more than six years. Id. at 513. The
defendants “received $303,890 from the public fisc to which they were not
entitled,” and the government “suffered damage to the integrity of one of its
programs.” Id. More importantly, the damages recovered by the government
were within the limits of damages allowed by the False Claims Act. Id.
[17] The present case is readily distinguishable from Aleff. Timbs did not engage in a
years-long scheme to defraud the State, nor did the State here seek to recover
treble damages under a false claims statute. It instead sought to forfeit a vehicle
that was not purchased with the proceeds of Timbs’s crimes. Here, the value of
the asset subject to potential forfeiture was well over the statutory maximum
fine, whereas in Aleff, the damages were more than the actual damages but still
within the statutory maximum allowed under the False Claims Act.7
7
The same holds true for the State’s citation to United States v. Mackby, 339 F.3d 1013 (9th Cir. 2003), which
was also brought under the False Claims Act. The total damages awarded in that case were within the
statutory limits and the government was directly defrauded. Id. at 1018. Although the amount awarded,
$729,455, was much greater than the $58,151 sought by the government, the defendants had filed fraudulent
Medicare claims for which they received payment of $331,078. Id.
Court of Appeals of Indiana | Opinion 27A04-1511-MI-1976 | October 20, 2016 Page 10 of 13
Conclusion
[18] Forfeiture of the Land Rover, which was worth approximately four times the
maximum permissible statutory fine, was grossly disproportionate to the gravity
of Timbs’s offense. We therefore affirm the trial court’s conclusion that
forfeiture of the Land Rover violated the Excessive Fines Clause of the Eighth
Amendment.
[19] Affirmed.
Vaidik, C.J., concurs.
Barnes, J., dissents with opinion.
Court of Appeals of Indiana | Opinion 27A04-1511-MI-1976 | October 20, 2016 Page 11 of 13
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, Court of Appeals Case No.
27A04-1511-MI-1976
Appellant-Plaintiff,
v.
Tyson Timbs and a 2012 Land
Rover LR2,
Appellees-Defendants.
Barnes, Judge, dissenting.
[20] I respectfully dissent. I realize that my colleagues point to the allegedly
“disproportionate” nature of the forfeiture sought by the State here. I
understand their concern. I would simply say as follows:
[21] Forfeitures are constitutional and, although some have been found to be
excessive, are a useful law enforcement tool. See U.S. v. Ursery, 518 U.S. 267,
290, 116 S. Ct. 2135, 2148 (1996).
[22] We have ruled that, in limited situations, the Excessive Fines Clause of the
Eighth Amendment may come into play in a forfeiture case. See $100 and a
Black Cadillac, 822 N.E.2d at 1011-12.
[23] However, it is clear and without conflict in the evidence that the vehicle here
was Timbs’s and was used to facilitate crime, i.e., to transport Timbs to the
Court of Appeals of Indiana | Opinion 27A04-1511-MI-1976 | October 20, 2016 Page 12 of 13
place of an arranged heroin buy. The vehicle did not have only a tangential
relationship to the crime or to the defendant. It should not matter that Timbs
committed the crime using an expensive new Land Rover rather than an old,
inexpensive “beater.”
[24] The majority correctly points out that the record reflects Timbs “only” sold
heroin twice. I simply posit that Timbs was arrested before the third buy could
take place, and we are left to wonder how much heroin he had access to.
[25] I am keenly aware of the overreach some law enforcement agencies have
exercised in some of these cases. Entire family farms are sometimes forfeited
based on one family member’s conduct, or exorbitant amounts of money are
seized. However, it seems to me that one who deals heroin, and there is no
doubt from the record we are talking about a dealer, must and should suffer the
legal consequences to which he exposes himself.
[26] Timbs dealt heroin and got caught. I vote to reverse the trial court’s denial of
the State’s forfeiture request.
Court of Appeals of Indiana | Opinion 27A04-1511-MI-1976 | October 20, 2016 Page 13 of 13