United States v. $100,348.00 in U.S. Currency

with whom D.W. NELSON, J., and FISHER, J., Circuit Judges, join:

These consolidated appeals from the district court’s forfeiture order present the novel question whether the “lawful possessor” of seized currency who has Article III standing to contest the seizure in a civil forfeiture proceeding is the proper party to make an Eighth Amendment Excessive Fines challenge to the amount forfeited. The majority of the panel answers this question in the affirmative. Each of the parties asserts other challenges to the district court’s order. Eytan Mayzel, the “lawful possessor,” argues that the district court erred by: (1) employing the incorrect standard of proof due to the enactment of the Civil Asset Forfeiture Reform Act of 2000; (2) granting summary judgment against him on all issues except the Eighth Amendment claim; (3) ordering even partial forfeiture of the seized funds as a violation of the…

dissenting in part:

I respectfully dissent from Part VI of the majority opinion holding that Mayzel has standing to assert a challenge to the amount ordered forfeited based on the Eighth Amendment’s Excessive Fines Clause. Based on the text, history, and purpose of the Eighth Amendment, I would conclude that the district court erred in permitting Mayzel to assert such a claim.

The Eighth Amendment forbids the “im-pos[ition]” of “excessive fines” alongside its more familiar bans on “[ejxcessive bail” and “cruel and unusual punishments.” U.S. Const, amend. VIII. This amendment, and the Excessive Fines Clause in particular, was the subject of very little debate among the Framers, and thus little is known about its original meaning. See Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 264-65 , 109 S.Ct. 2909 , 106 L.Ed.2d 219 (1989). The Supreme Court has recently held that it applies to some types of civil forfeiture as well as to the imposition of criminal fines. See Austin v. United States, 509 U.S. 602, 609-10 , 113 S.Ct. 2801 , 125 L.Ed.2d 488 (1993). The touchstone for whether civil forfeitures are treated as fines for the purposes of the Excessive…