United States v. Constantine Walker

dissenting:

I am troubled by the measure that the court uses to determine if the $500 assessment bears a reasonable relation to the government’s expense. The government maintains that the amount is trivial in light of the expense required to maintain a system of customs inspection. No doubt it is. But why should a pro rata share of the customs inspection system be a measure? There would be no customs inspection system without the Department of the Treasury. Should not a pro rata share of Treasury expense be the measure? There would be no Treasury without the government as a whole. Should not a pro rata share of the expense of the government as a whole be the measure? These questions suggest how a pro rata share of the actual expense of setting up the structure which led to Walker’s detection could lead to the justification of astronomical fines. $500 is trivial in relation to a pro rata share of the expense of the Treasury or the government; so are $5,000 or $50,000 or $500,000. In short, pro rata share of the expense gives the government an essentially arbitrary choice as to the system whose expense is shared and a virtual blank check as to the amount it can assess. Such…

Walker moved to dismiss criminal charges against him on the ground that they violate double jeopardy. The district court denied the motion. The denial is final and appealable under 28 U.S.C. § 1291 . See Abney v. United States, 431 U.S. 651 , 97 S.Ct. 2034 , 52 L.Ed.2d 651 (1977). We affirm.

I

On June 4, 1990, Walker entered the United States on a commercial aircraft. Customs inspectors discovered that Walker was carrying approximately one gram of marijuana, which he had failed to list on his declaration form or to present for inspection. Walker immediately was assessed a civil penalty of $500 pursuant to Customs Directive 4400-11 (Oct. 18, 1989). The directive and the government indicate that 19 U.S.C. § 1459 provided statutory authority for the civil penalty. 1 Although § 1459 imposes a $5,000 civil penalty on first offenders, Customs Directive 4400-11 automatically “mitigates” the $5,000 civil penalty to $500.

The government brought criminal charges against Walker for knowing possession and importation of the marijuana. Walker argued that the previously imposed civil fine was punitive. He moved to dismiss the indictment on double jeopardy grounds. The only question before us…

940 F.2d 442 UNITED STATES of America, Plaintiff-Appellee, v. Constantine WALKER, Defendant-Appellant. No. 90-10459. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 12, 1991. Decided July 26, 1991. Hayden Aluli, Asst. Federal Public Defender, Honolulu, Hawaii, for defendant-appellant. Leslie E. Osborne, Jr. and Michael Burke, Asst. U.S. Attys., Honolulu, Hawaii, for plaintiff-appellee. Appeal from the United States District Court for the District of Hawaii. Before SCHROEDER, BEEZER and NOONAN, Circuit Judges. BEEZER, Circuit Judge: 1 Walker moved to dismiss criminal charges against him on the ground that they violate double jeopardy. The district court denied the motion. The denial is final and appealable under 28 U.S.C. Sec. 1291 . See Abney v. United States, 431 U.S. 651 , 97 S.Ct. 2034 , 52 L.Ed.2d 651 (1977). We affirm. 2 * On June 4, 1990, Walker entered the United States on a commercial aircraft. Customs inspectors discovered that Walker was carrying approximately one gram of marijuana, which he had failed to list on his declaration form or to present for inspection. Walker immediately was assessed a civil penalty of $500 pursuant to Customs…