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Comments on Criminal Issues
January 16, 2011
EXCESSIVE FINES: PROPERTY FORFEITURE IN CHILD PORNOGRAPHY CASES
Courts Stretch Logic and Allow Government Land Grab in Child Porn Case
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Former President George W. Bush appointed more than 200 judges to the federal bench. The Ivy League graduate and former Texas governor had a two-part litmus test for federal judgeship appointments: the appointees had to be young and ideologically conservative. While Bush made a number of “diverse” appointments, the “overall number of minority judges in the federal courts did not increase during his tenure,” said Jennifer Segal Diascro, professor of government at American University’s School of Public Affairs.
Bush’s federal judgeship appointments had no greater impact than on the Eighth Circuit Court of Appeals. The former president appointed six of the seven judges in the conservative majority. Bush took special pride in the politically conservative shape he gave the federal judiciary. At an October 2008 conference sponsored by the Cincinnati chapter of the Federalist Society, “the elite network for the conservative movement” reported the New York Times, Bush informed the group that he had appointed one-third of the federal judiciary expected to be serving when he left office.
We have reported in the past about how the Eighth Circuit can, and will, hand down rogue decisions which conflict with U.S. Supreme Court precedent. That’s why we were not surprised by one of the court’s more alarming decisions last year in a child pornography case, United States v. Hull. Larry Richard Hull was indicted for one count of possession of child pornography and four counts of distribution of child pornography in violation of 18 U.S.C. Sec. 2252. He pled guilty to two counts of distribution of child pornography. At the time of the conviction Hull owned 19 acres of rural property in the state of Iowa and the Government through its indictment sought to have all the land forfeited pursuant to 18 U.S.C. Sec. 2253. Subsection (a)(3) of the forfeiture statute explicitly provides that the Government may seek, and the trial court may order, forfeiture of “any property, real or personal, used or intended to be used to commit or to promote the commission of such offense or any property traceable to such property” Following a bench trial, the trial judge ordered all of Hull’s land forfeited, saying he was comfortable the penalty did not violate the Excessive Fines Clause because Hull’s “equity in the property did not exceed the maximum applicable fine.”
Hull appealed the forfeiture order to the Eighth Circuit. He contended first that there had been no proof presented that he used or intended use the 19 acres to either commit or promote the child pornography charges as required by Sec. 2252. He essentially argued that even if his house, which sat on the property, was subject to forfeiture, the acreage itself could not be forfeited because it had not been used in any way in connection with his crimes. The Eighth Circuit noted that this was “a question of first impression in the federal courts of appeals” and the appeals court utilized that opportunity foster its own conservative impression of the law. The court held:
“We think it clear that Hull ‘used’ his real property ‘to commit’ or ‘to promote the commission of’ the child pornography offenses. He set up a computer in a room in his house, connected to the Internet, and distributed child pornography from there. The evidence showed a substantial connection—not merely an incidental or fortuitous relationship—between the real property and the offenses. To be sure, use of the computer was necessary to commit the offenses, but the real property played a substantial role as well. The house enabled Hull to establish hardwired connection to the Internet, which allowed him to distribute contraband. It also provided a secure place to store the images that he later distributed. Use of a computer in the privacy of the residence, rather than in a library, coffee shop, or senior center, made it easier for Hull to conceal his crimes from public scrutiny. Hull posits that he could just as easily have used a motel room, but use of the residence avoided rental costs and the attention that would be attracted by frequent visits to local motels.
“Hull contends that even if the house was ‘used’ to commit the offenses, the rest of the acreage was not, and that only the house itself should be forfeited. The statute calls for forfeiture of ‘property’ used to commit the offense, but not does not further address what constitutes one piece of forfeitable ‘property.’ Hull suggests that the court should consider the ‘residence’ separately from ‘outbuildings’ or ‘farm and pasture land,’ and require a showing of ‘use’ and ‘substantial connection’ with respect to each portion before it is forfeitable.”
For the sake of argument we will concede that the residence and all items connected to the computer used to distribute child pornography by Hull was forfeitable—although we think the court’s reasoning in reaching that conclusion is rather simplistic and will no doubt be subject to further litigation. But there is no way we can remotely accept the premise that the rest of the acreage, with all its farm implements and possible livestock, and the “outbuildings,” such as the barn and tool sheds, were “used” to “promote” Hull’s offenses. The court itself noted that the forfeiture statute does define exactly what “property” entails, but we cannot believe Congress intended to strip an individual bare of all his property not even remotely connected to the criminal offenses for which he is convicted.
To justify its untenable position that all of Hull’s acreage could be seized and forfeited, the Eighth Circuit turned to a decision it rendered in 1993, United States v. 318 South Third Street, which held that “any property” used in a gambling operation was subject to forfeiture. In that case the gambling operation was conducted out of the second floor of a two-story building, and the owners alleged only that portion of the building should be subject to forfeiture. The court disagreed, saying the entire structure could be seized and forfeited.
The 318 South Third Street decision is a far stretch from the Hull situation which involved the seizure and forfeiture of acreage and buildings that had nothing to do with Hull’s offenses. The Eighth Circuit, however, said “we see no meaningful basis on which to distinguish 318 South Third Street.” We certainly see a “meaningful basis” in which to distinguish the two cases, especially since the Government acknowledged that Hull’s case was the first in the Southern District of Iowa in which it had sought forfeiture of both residence and other property in a child pornography case.
Next the Eighth Circuit rejected Hull’s claim that the forfeiture in his case violated the Excessive Fines Clause. The appeals court said:
“The ‘principle of proportionality’ embodied in the Excessive Fines Clause requires that ‘[t]he amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish” (citing the Supreme Court decision in United States v. Bajakajian). There is no requirement of “strict proportionality’; a forfeiture passes constitutional muster unless it is ‘grossly disproportional to the gravity of the defendant’s offense.’ Although the fines authorized by statute and the sentencing guidelines cannot override the constitutional rule, they are relevant evidence on the question of proportionality.
“Our court has said that if the value of forfeited property is within the range of fines under the sentencing guidelines, then it ‘is presumptively not excessive’ … and, in a bolder statement, that such a forfeiture ‘almost certainly is not excessive’ [citing two decisions, United States v. Moyer and United States v. Sherman) … These decisions apparently proceed on the view that the sentencing guidelines ‘are the product of extensive research, thought, input from commentators, and experience,’ and are ‘designed to proportion punishments to crimes with even greater precision than criminal legislation,’ such that a defendant must ‘present a very compelling argument to persuade us to substitute our judgment for that of the
United States Sentencing Commission.’”
What the Eighth Circuit failed to note is that Bajakajian held that “whether a fine is constitutionally excessive calls for the application of a constitutional standards to the facts of a particular case.” In applying this standard, the Fifth Circuit Court of Appeals in United States v. Loe held that a forfeiture of property is not excessive if the property forfeited is confined to that obtained with illegal funds. Loe was an insurance fraud case, and the facts in that case warranted forfeiture only of property obtained through the fraud scheme.
Thus, the Eighth Circuit’s reasoning that because Hull’s “equity” in the 19 acres was less than fine that could have been imposed under the sentencing guidelines, its forfeiture was not “disproportional” misses the constitutional mandate of Bajakajian. The facts is the Hull case are that he did not use the 19 acres to “commit” or “promote” the offenses for which he was convicted. Had Congress intended that all of a defendant’s property in a child pornography case be subject to forfeiture under Sec. 2253, it would have expressly stated as much. The Eighth Circuit, we feel, superimposed its own “intent” by expanding the reach of forfeiture in child pornography cases from property used to commit the offense to all property in which defendant has an “equity” interest so long as it is less than the value of an authorized sentencing guideline fine. We do not believe that either the intent of Sec. 2253 or the proportional analysis of Bajakajian authorizes such an expansion.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair