concurring:
I join the Per Curiam opinion and offer these additional comments solely to express concern over what may be a particularly troublesome Eighth Amendment issue lurking in this case. The Amendment provides:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
At jeopardy on remand is the money the Beltrans used to purchase the defendant property.
When the district court addresses this issue upon remand, it should consider the factors set forth in United States v. Real Property Located in El Dorado County, 59 F.3d 974 (9th Cir.1995). In El Dorada, we held that in order to survive an Excessive Fines challenge the property must, inter alia, have “a close ... relationship to the offense.” Id. at 982. Based on the government’s characterization at oral argument of the husband Appellant as a convicted “drug trafficker” and “drug dealer,” I am concerned about the relationship of this forfeiture proceeding to the stated underlying offense.
Forfeiture is strong medicine. If the government’s decision to initiate and prosecute an in rem forfeiture, ostensibly for illegal structuring or exaggeration of income in a loan application, were actually influenced in whole or in part by a property owner’s drug trafficking experience, then a question could arise whether the forfeiture would serve as additional punishment for the drug offense. See United States v. One 1978 Piper Cherokee Aircraft, 37 F.3d 489, 494-95 (9th Cir.1994) (the question of “whether forfeiture was an excessive fine” may require asking if the government sought to punish claimant for a conviction other than the underlying offense).
If on remand a record were developed indicating that this was one of the purposes of this forfeiture, then it would be proper to inquire if this presented an Eighth Amendment problem in the form of additional punishment for the husband Appellant’s criminal activity, or possibly a run-of-the-mill due process problem. See id. at 495. I do not contend that this is the ease here. I observe only that the state of the present record permits this possibility to be examined on remand.
My own judicial experience has not exposed me to any forfeiture proceeding instituted against a claimant solely for puffing his or her income on a real estate mortgage loan application;1 and only rarely has forfeiture served as an adjunct punishment for a structuring offense. Confessedly, it is this lack of experience that puts me on guard.
. Nor has my review of reported opinions to date revealed such a case.