The United States appeals the decision of the district court following the defendant’s guilty plea to failure to report currency in violation of 31 U.S.C. § 5316(a)(1)(A).1 Specifically, the United States appeals the district court’s determination that the defendant was required to forfeit only $15,000 of the $357,144 at issue.2 We affirm the decision of the district court.
I. Factual and Procedural Background
On June 9, 1994, Bajakajian was attempting to board an Alitalia Airways flight leaving Los Angeles, destined for Cyprus. While Bajakajian was waiting to board his flight, U.S. Customs discovered approximately $140,000 concealed in four pieces of Bajakaji-an’s checked luggage and $90,000 concealed in a false bottom of one of his bags. After discovering the hidden currency, a Customs inspector stopped the defendant and his family at the airport and informed them that they were required to report all money in both their personal possession and baggage which exceeded $10,000, irrespective ■ of whether the money belonged to them. Baja-kajian told the Customs inspector that he had $8,000 with him and that his wife had an additional $7,000. Bajakajian informed the inspector that his family had no additional money to report.
Customs inspectors discovered a total of $357,144 in United States currency in the earry-on baggage, cheeked-in baggage, wallet, and purse of the defendant and his wife. After being advised of his rights, Bajakajian admitted to Customs agents that he knowingly and wilfully failed to report the currency which was discovered.
On July 8, 1994, a grand jury returned a three count indictment against the defendant. Count One charged the defendant with violation of 31 U.S.C. §§ 5316(a)(1)(A) and 5322(a) for transporting currency of more than $10,-000 outside of the United States without filing a report with the United States Customs Service. Count Two charged the defendant with making a false material statement to the United States Customs Service in violation of 18 U.S.C. § 1001. Count Three sought the forfeiture of the $357,144 discovered by Customs under 18 U.S.C. § 982(a)(1).
On October 27, 1994, pursuant to a plea agreement, the defendant entered a guilty plea as to Count One of the indictment and waived a jury trial as to Count Three. The government agreed to dismiss Count Two at the time of sentencing. On December 20, 1994, a bench trial was held for Count Three. The district court found that the entire $357,-144 discovered by Customs agents was subject to criminal forfeiture pursuant to 18 *336U.S.C. § 982(a)(1). However, at sentencing, the district court ordered the defendant to forfeit only $15,000 of the $357,144. The district court concluded that forfeiture of more than $15,000 would be disproportionate to Bajakajian’s culpability, and therefore unconstitutional under the Excessive Fines Clause of the Eighth Amendment. In calculating the amount of forfeiture, the district court recognized that all of the money at issue had come from a lawful source, and was to be used for a lawful purpose.
II. Discussion
A district court’s interpretation of federal forfeiture law is reviewed de novo. United States v.1980 Lear Jet, 38 F.3d 398, 400 (9th Cir.1994).
The government alleges on appeal that the district court erred in requiring forfeiture of only $15,000 because the entire $357,144 at issue should have been forfeited. In the alternative, the government requests forfeiture of $170,000, the amount of currency which Bajakajian asked a friend to lie about to Customs agents.
The forfeiture statute relevant to this litigation, 18 U.S.C. § 982(a)(1), provides in pertinent part: “The court, in imposing sentence on a person convicted of an offense in violation of section 5313(a), 5316 or 5324 of title 31 ..., shall order that the person forfeit to the United States any property, real or personal, involved in such offense, or any property traceable to such property.”
Therefore, pursuant to 18 U.S.C. § 982(a)(1), the entire $357,144 at issue in the present ease is potentially forfeitable. However, a forfeiture is unconstitutional unless it survives scrutiny under the Excessive Fines Clause of the Eighth Amendment. “The Excessive Fines Clause limits the Government’s power to extract payments, whether in cash or in kind, ‘as punishment for some offense.’ ” Austin v. United States, 509 U.S. 602, 609-10, 113 S.Ct. 2801, 2805, 125 L.Ed.2d 488 (1993) (citation omitted). See also Alexander v. United States, 509 U.S. 544, 557-60, 113 S.Ct. 2766, 2775-76, 125 L.Ed.2d 441 (1993) (holding that criminal forfeiture is a form of monetary punishment subject to the Eight Amendment’s Excessive Fines Clause); United States v. Sarbello, 985 F.2d 716, 717-18 (3d Cir.1993) (holding that a court may reduce an otherwise mandatory 100% statutory criminal forfeiture on the basis of the Excessive Fines Clause of the Eighth Amendment). Therefore, forfeiture in the present ease must be subjected to analysis under the Excessive Fines Clause.
The Supreme Court, in Austin, declined to enumerate the factors to be considered in determining whether a forfeiture violates the Excessive Fines Clause. Austin, 509 U.S. at 621-23, 113 S.Ct. at 2812. We recently addressed this issue and established a two-pronged test for determining whether a forfeiture is -unconstitutionally excessive under the Eighth Amendment. United States v. Real Property Located in El Dorado County, 59 F.3d 974, 982 (9th Cir.1995).
Pursuant to this court’s Excessive Fines Clause test, a forfeiture is constitutional if: (1) the property forfeited is an “instrumentality” of the crime committed; and (2) the value of the property is proportional to the culpability of the owner.3 Id. at 982. Therefore, Bajakajian cannot be ordered to forfeit any currency unless forfeiture in the present case would satisfy both the instrumentality and proportionality prongs of our recently established Excessive Fines Clause test.
Application of the instrumentality prong of the Excessive Fines test to a 31 U.S.C. § 5316 violation was recently discussed by this court in United States v. $69,292 in United States Currency, 62 F.3d 1161 (9th Cir.1995). The court questioned whether the currency involved in a § 5316 violation could ever be considered the instrumentality of the crime of failure to report. The court explained that it was not persuaded “that currency lawfully acquired and possessed has that necessarily close relationship to the *337crime simply because it has not been reported. The crime is the withholding of information, 31 U.S.C. § 5316, not the possession or the transportation of the money.” Id. at 1167. The court further explained that the money at issue in a § 5316 violation is not contraband, and the money is presumed under the statutory scheme to be lawfully acquired and possessed. The statute does not impose a limit on the amount of U.S. currency which may be exported to foreign jurisdictions. Persons leaving the United States are free, as they have always been, to take with them such amounts of cash as they so choose. Id.
This court, in $69,292, also rejected the argument that the currency in a § 5316 violation satisfies the instrumentality requirement based upon the notion that the currency’s existence was a precondition to the reporting requirement of 31 U.S.C. § 5316.
Simply put the existence of the currency as a precondition does not make it an instrumentality. For example, we would not characterize lawfully earned income an instrumentality forfeitable as such simply because a taxpayer wilfully failed to report that income on his tax return in violation of the tax code. The government would have us stretch the fiction of an “instrumentality” to the breaking point.
Id. at 1167-68 (citation omitted). See also Austin v. United States, 509 U.S. 602, 619-21, 113 S.Ct. 2801, 2811, 125 L.Ed.2d 488 (1993) (rejecting expansive definitions as to what qualifies as the instrumentality of a particular crime).
The government argues that the majority opinion in $69,292 conflicts with the Supreme Court’s decision in One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 93 5.Ct. 489, 34 L.Ed.2d 438 (1972). There, the Court upheld the forfeiture of imported goods pursuant to 19 U.S.C. § 1497,4 where the defendant failed to declare one lot of emerald cut stones and a ring upon his entry into the United States. Id. at 233, 93 S.Ct. at 491.
However, $69,292 and One Lot Emerald Cut Stones are not in conflict. One Lot Emerald Cut Stones involved the smuggling of contraband. When a defendant is convicted for failure to report currency pursuant to 31 U.S.C. § 5316, the crime is not the illegal possession, transportation, or smuggling of dutiable items. Rather, the crime is merely the failure to provide information. Money in lawful possession, as it was here, is not contraband. Moreover, the currency at issue in a § 5316 violation is not contraband, is presumed to be lawfully possessed and is not subject to duty. It is not illegal to take currency out of the country. The key difference is that a violation of § 5316 merely deprives the government of information, whereas the smuggling of goods across the border deprives the government of revenue. $69,292, 62 F.3d at 1167. Therefore, there is a much tighter instrumentality connection between property sought to be forfeited and the crime when the crime committed is the failure to pay a duty.5
We hereby adopt the logic of the court in $69,292.6 Forfeiture of currency is *338unconstitutional when the crime to which the forfeiture is tied is a mere failure to report pursuant to 31 U.S.C. § 5316. In such situations, there simply is not an instrumentality relationship between the currency and the crime to satisfy the instrumentality prong of the Excessive Fines test.7
Therefore, the district court erred in ordering Bajakajian to forfeit $15,000. Forfeiture of any amount would be unconstitutionally excessive under the El Dorada Excessive Fines Clause test. However, Bajaka-jian failed to file a cross-appeal requesting a modification of the district court’s order that he forfeit $15,000. If an appellee seeks a modification of the district court’s judgment, he must file a cross-appeal requesting the modification. Unless an appellee files a cross-appeal, “the appellee may not attack the [district court’s] decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary, whether what he seeks is to correct an error or to supplement the decree with respect to a matter not dealt with below.” United States v. One 1964, MG, 584 F.2d 889, 890 (9th Cir.1978) (quoting United States v. American Ry. Express Co., 265 U.S. 425, 435, 44 S.Ct. 560, 563-64, 68 L.Ed. 1087 (1924)).
Although pursuant to the Excessive Fines Clause Bajakajian cannot be ordered to forfeit any of the unreported currency, he is nonetheless forced to accept the decision of the district court. Bajakajian failed to file a cross-appeal, and therefore, this court lacks jurisdiction to set aside the district court’s forfeiture order of $15,000.
III. Conclusion
The decision of the district court is AFFIRMED.
. 31 U.S.C. § 5316(a) provides in pertinent part: a person or an agent or bailee of the person shall file a report under subsection (b) of this section when the person, agent, or bailee knowingly—
(1) transports, is about to transport, or has transported, monetary instruments of more than $10,000 at one time—
(A) from a place in the United States to or through a place outside the United States....
. In addition to appealing the district court's decision regarding the amount of currency which Bajakajian should be required to forfeit, the government has also appealed the district court's calculation of Bajakajian's base offense level and the district court’s failure to enhance Bajakaji-an's sentence for obstruction of justice. However, this opinion only addresses the government’s appeal of the district court's forfeiture calculation. The remaining issues will be resolved in a separate disposition.
. The district court bypassed the instrumentality prong of the two part El Dorado Excessive Fines test and examined only the proportionality of forfeiture in the present case. This is probably due to the fact that the Ninth Circuit’s decision in El Dorado was handed down subsequent to the district court’s decision.
. 19 U.S.C. § 1497 has since been amended, but at the time of One Lot Emerald Cut Stones, it provided:
Any article not included in the declaration and entry as made, and, before examination of the baggage was begun, not mentioned in writing by such person, if written declaration and entry was required, or orally if written declaration and entry was not required, shall be subject to forfeiture and such person shall be liable to a penalty equal to the value of such article.
. Such a distinction is not new. See Austin v. United States, 509 U.S. 602, 619-23, 113 S.Ct. 2801, 2811-12, 125 L.Ed.2d 488 (1993) (The Supreme Court distinguished cases involving drug forfeitures from cases involving customs violations.).
. The government alleges that the reasoning of the majority in $69,292 with respect to the Excessive Fines Clause and 31 U.S.C. § 5316 is dicta because the district court might not have needed to address this issue on remand. However, this portion of $69,292 is not dicta. "[Direction to the district on how to proceed continues to be binding precedent, even if characterized as an alternative holding." Operating Eng’rs Pension Trust v. Charles Minor Equip. Rental, Inc., 766 F.2d 1301, 1304 (9th Cir.) (explaining that it was not dicta for the Ninth Circuit in Sapper v. Lenco Blade, Inc., 704 F.2d 1069 (9th Cir.1983) to direct the district court on how to resolve an issue on remand which might only arise, depend*338ing upon the resolution of another issue), modified, 778 F.2d 538 (9th Cir.1985).
. The government argues that United States v. One 1985 Mercedes-Benz, 14 F.3d 465 (9th Cir.1994) provides support for forfeiture in the present case. In One 1985 Mercedes-Benz, the court held that vehicles used to export currency in violation of 31 U.S.C. § 5316 are subject to forfeiture under 18 U.S.C. § 982. However, One 1985 Mercedes-Benz does not provide support for forfeiture in the present case for two reasons. First, a car used to transport money is clearly the instrumentality of a § 5316 violation because the car itself is used to export and conceal the currency. Second, One 1985 Mercedes-Benz was decided prior to both El Dorado, which established the two-pronged Excessive Fines test, and $69,292, which applied the El Dorado test for the first time to a § 5316 violation. Therefore, the facts of One 1985 Mercedes-Benz are not analogous to the facts of the present case, and its logic is questionable due to the recent decisions handed down by this court in El Dorado and $69,292.