IN THE SUPREME COURT OF MISSISSIPPI

NO. 94-CA-00521-SCT

ONE (1) 1979 FORD 15V, VIN #E14HBEE7506; SIX

THOUSAND SIXTY-ONE DOLLARS AND 11/100 ($6,

061.11) IN CHECKING ACCOUNT NUMBER 305-

0155-1, PEOPLES BANK OF THE DELTA,

INDIANOLA, MISSISSIPPI, OR ITS CURRENT

BALANCE, WHICHEVER IS MORE; AND ONE

THOUSAND TWO HUNDRED ELEVEN DOLLARS

AND 40/100 ($1,211.40) IN SAVINGS ACCOUNT

NUMBER 9-200-32, PEOPLES BANK OF THE

DELTA, INDIANOLA, MISSISSIPPI, OR ITS

CURRENT BALANCE, WHICHEVER IS MORE

v.

STATE OF MISSISSIPPI, EX REL., MISSISSIPPI

BUREAU OF NARCOTICS

DATE OF JUDGMENT: 05/02/94

TRIAL JUDGE: HON. GRAY EVANS

COURT FROM WHICH APPEALED: LEFLORE COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANTS: AZKI SHAH

EARNEST CONROD, JR.

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: LISA LYNN BLOUNT

NATURE OF THE CASE: CIVIL - OTHER

DISPOSITION: AFFIRMED IN PART; REVERSED AND

RENDERED IN PART - 8/27/98

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 9/17/98

EN BANC.

WALLER, JUSTICE, FOR THE COURT:

SUMMARY

¶1. The Mississippi Bureau of Narcotics filed a Petition for Forfeiture pursuant to Miss. Code Ann. §
41-29-177 (1972, as amended), in the Circuit Court of Leflore County seeking the forfeiture of

narrow items of property, of which a 1979 Ford van and two bank accounts are at issue in this

appeal.(1) The petition alleged that the vehicle had been used to facilitate drug trafficking and that the

money was traceable to drug activity.

¶2. Earnest Conrod ("Conrod"), the Appellant in this action, moved the trial court to have the

forfeiture action dismissed on the grounds that it violated the Excessive Fines Clause of the Eighth

Amendment of the United States Constitution and had not been timely tried. The trial court denied

the Motion to Dismiss. Conrod appealed to this Court assigning the following issues.

I. DID THE FORFEITURE OF CONROD'S PROPERTY VIOLATE

CONSTITUTIONAL RIGHTS?

A. Is the forfeiture at issue excessive in that it violates the Excessive Fines Clause of the

Eighth Amendment?

B. Does this forfeiture violate the Double Jeopardy Clause of the Fifth Amendment?

II. DID THE TRIAL COURT ERR BY QUESTIONING THE WITNESS?

III. DID THE TRIAL COURT ERR BY ALLOWING THE STATE TO RECALL

AGENT ANDERSON AS A REBUTTAL WITNESS WHEN THE RULE HAD BEEN

INVOKED?

STATEMENT OF THE FACTS

¶3. On February 7, 1990, narcotics agents negotiated a drug deal with Earnest Conrod. On the night

of the negotiation, Conrod was driving a 1979 Ford van. The day of the purchase, which was the

next day, Conrod arrived in a Corvette accompanied by others in a Maxima. Conrod was arrested at

this time and approximately $90,000 was seized. Conrod eventually pled guilty in Federal Court to

conspiracy to sell.

¶4. The Mississippi Bureau of Narcotics ("Bureau") filed its Petition for Forfeiture. At the hearing on

this petition, Agent Anderson, who was involved in the investigation of Conrod, testified that Conrod

owned a vast amount of property and jointly held several bank accounts with other individuals at the

time of his arrest. Agent Anderson testified that the payments on the real estate were made in cash

money. She also testified that Conrod had been loaned money from the bank to purchase some

properties.

¶5. Agent Anderson's investigation also revealed that Conrod ostensibly derived his income from a

small grocery store he owned in Sunflower, Mississippi. She testified that the money confiscated

from Conrod at the time of his arrest, the money he had in the bank accounts either jointly or

individually, and the payments on his notes did not match up with his income. Anderson testified that

Conrod stated on the night of his arrest that the grocery store was not doing all that great. Conrod

claimed that he borrowed the money he had in his possession on the night of his arrest from friends.

Anderson did not point to any drug sale that would have accounted for the money in Conrod's

possession.
DISCUSSION OF THE LAW

I. DID THE FORFEITURE OF CONROD'S PROPERTY VIOLATE

CONSTITUTIONAL RIGHTS?

A. Is the forfeiture at issue excessive in that it violates the Excessive Fines Clause of the

Eighth Amendment?

¶6. Conrod argues that the forfeiture of his property, a 1979 Ford van and two bank accounts,

violates the Excessive Fines Clause of the Eighth Amendment and cites Austin v. United States, 509

U.S. 602 (1993) in support of his position. In Austin, the defendant, upon his guilty plea, was

sentenced to prison for possession of cocaine with intent to distribute. Subsequently, the United

States filed an in rem action in Federal District Court against his mobile home and auto body shop

under the federal statutes which provide for the forfeiture of vehicles and real property used or

intended to be used to facilitate the commission of certain drug-related crimes. Id. at 604-05. The

United States Supreme Court held that forfeiture under the federal statutes was monetary punishment

and thus subject to the Excessive Fines Clause. The Supreme Court ruled that these sections were

punitive in nature, even though they may also serve remedial purposes, because Congress provided

for an "innocent-owner defense" within the statutes in addition to requiring that forfeiture be directly

tied to the commission of drug offenses. Id. at 619-20. The Supreme Court concluded that forfeiture

under these federal statutes constituted payment for punishment for some offense and was, therefore,

subject to the limitations of the Excessive Fines Clause. Id. at 622. The Supreme Court stopped short

of indicating exactly what was excessive and remanded the case to the Court of Appeals for such a

determination. Id.

¶7. The United States Supreme Court has not yet prescribed a test for determining whether a

forfeiture is an excessive fine. The State argues that the Excessive Fines Clause of the Eighth

Amendment does not apply to the states. Pervear v. Commonwealth, 72 U.S. 475 (1866); Knapp v.

Schweitzer, 357 U.S. 371 (1958). The Mississippi Constitution has its own excessive fines clause,

which is identical to the Excessive Fines Clause of the United States Constitution. Miss. Const. art. 3

§ 28 (1890). This Court can look to the United States Supreme Court for guidance or we can

develop our own application under Miss. Const. art 3 § 28. Other courts have primarily employed

two tests when determining whether a forfeiture is excessive.

¶8. The Fourth Circuit, in United States v. Chandler, 36 F.3d 358 (4th Cir. 1994), has adopted the

"instrumentality test," which requires an analysis of the following three factors, when determining

whether forfeiture is excessive:

(1) the nexus between the offense and the property and the extent of the property's role in the

offense,

(2) the role and culpability of the owner, and

(3) the possibility of separating the offending property from the remainder.

Id. at 365. This test focuses on how closely the property is tied to the crime and whether the property

was instrumental to the crime committed. If the above three requirements are met, the forfeiture is
considered constitutional. Since the Supreme Court's Austin decision, a number of other courts of

appeal have applied the Excessive Fines Clause in the forfeiture context. Only the Chandler court has

adopted Justice Scalia's "instrumentality" approach as the sole inquiry.(2)

¶9. At the other end of the spectrum, one circuit has concluded that "the appropriate inquiry with

respect to the Excessive Fines Clause is, and is only, a proportionality test" that compares the value

of the property forfeited with the severity of the crime committed. United States v. One Parcel

Property Located at 427 & 429 Hall Street, 74 F.3d 1165, 1170 (11th Cir.1996)(rejecting Chandler

court's analysis and instrumentality test). Several courts of appeal, meanwhile, have adopted tests that

combine instrumentality and proportionality inquiries. SeeUnited States v. Premises Known as 6040

Wentworth Avenue South, 123 F.3d 685, 688-89 (8th Cir.1997) (applying "gross disproportionality"

analysis including both proportionality and instrumentality factors); United States v. One Parcel

Property, 106 F.3d 336, 338 (10th Cir.1997) (applying instrumentality test first, then proportionality

test); United States v. Real Property Located in El Dorado County at 6380 Little Canyon Road, 59

F.3d 974, 983 (9th Cir.1995) (adopting "proportionality test as a check on the instrumentality

approach"); United States v. Milbrand, 58 F.3d 841, 847 (2d Cir.1995) (applying multi-factor

analysis including both proportionality and instrumentality factors), cert. denied, 516 U.S.

1182(1996); United States v. Premises Known as RR # 1, Box 224, Dalton, 14 F.3d 864, 876 (3d

Cir.1994) (remanding with instructions to apply instrumentality test first, then examine

proportionality). The Sixth Circuit has addressed the question but declined to adopt an approach, see

United States v. Certain Real Property Located at 11869 Westshore Drive, 70 F.3d 923, 930 (6th

Cir.1995), cert. denied, 117 S.Ct. 57(1996), while the First, Fifth, and District of Columbia Circuits

apparently have yet to consider the issue.

¶10. As a court, we can not view forfeiture cases in a vacuum. The test employed must be one that

permits forfeiture of property from those persons who utilize said property in furtherance of their

own criminal activity. Yet, the test must also be flexible so as not to permit forfeiture where innocent

persons will suffer or where the value of the property is grossly disproportionate to the crime.

¶11. Given that the weight of authority among the courts of appeal strongly favors the use of both

instrumentality and proportionality review in this context, we decline to employ solely the

instrumentality test. One can easily imagine cases in which the freestanding instrumentality approach

could lead to results that are "excessive fines" under the circumstances.

¶12. A proportionality analysis is especially appropriate in the civil forfeiture context because it is the

sovereign that profits from such forfeitures. See United States v. 6380 Little Canyon Road, 59 F.3d

at 983 (adopting "proportionality test as a check on the instrumentality approach"). Justice Scalia

recognized this when he stated:

There is good reason to be concerned that fines, uniquely of all punishments, will be imposed in

a measure out of accord with the penal goals of retribution and deterrence. Imprisonment,

corporal punishment and even capital punishment cost a State money; [whereas] fines are a

source of revenue... [I]t makes sense to scrutinize governmental action more closely when the

State stands to benefit.

Harmelin v. Michigan, 501 U.S. 957, 978 n.9 (1991) (Scalia, J., plurality opinion). All property,

such as that which is at issue here, that is forfeited to Mississippi law enforcement agencies is either
liquidated, in which case the arresting agency is entitled to a portion of the proceeds, or kept by the

arresting law enforcement agency for its own use and benefit. Miss. Code Ann. 41-29-181 (Supp.

1997). This incentive enhances the need for close scrutiny of in rem forfeitures. For this reason, the

judiciary should be alert to detect constitutionally proscribed injustices imposed on individual

wrongdoers. 6380 Little Canyon Road, 59 F.3d at 984-85.

¶13. This Court recognizes the factually intensive nature of forfeiture cases and we elect to apply a

test that combines the three prongs of the "instrumentality" test with a "proportionality" review. The

elements of the test that we elect to employ are as follows:

(1) The nexus between the offense and the property and the extent of the property's role in the

offense;

(2) The role and culpability of the owner;

(3) The possibility of separating the offending property from the remainder; and

(4) Whether, after a review of all relevant facts, the forfeiture divests the owner of property

which has a value that is grossly disproportionate to the crime or grossly disproportionate to the

culpability of the owner.

¶14. The above test combines the elements of the instrumentality test with a weighing of

proportionality on the individual circumstances of each case to determine whether the forfeiture is

excessive. It avoids the harsh and unjust results that can be, and will be, produced by the

implementation of a "bright-line" instrumentality test. At the same time, it allows the lower courts,

and this Court on review, to consider all relevant factors under a framework that is simple, yet

complete.

¶15. As outlined in this opinion, the vast majority of federal courts have also elected to temper the

instrumentality with a proportionality review. In fact, the Fourth Circuit appears to be the only circuit

that strictly follows solely an instrumentality test. United States v. Chandler, 36 F.3d 358 (4th Cir.

1994).

¶16. The analysis under the proportionality test that we employ here is two-part. First, under the

"instrumentality" (or "nexus") test, the forfeited property must have a sufficiently close relationship to

the illegal activity. Second, under the "proportionality" test, forfeiture of the property must not

impose upon the owner a penalty grossly disproportionate to his offense.

¶17. With these enunciated principles in mind, we proceed to determine whether the forfeiture of the

1979 Ford van and the two bank accounts are proper under the test we have set forth above.

1979 Ford van

¶18. Conrod pled guilty to conspiracy to distribute 500 grams or more of cocaine and the commission

of a drug crime with a firearm which are felonies set forth in 21 U.S.C. §§ 841 and 846. This crime

carries a maximum of fifteen years and possibly a $25,000 fine. Conrod drove the van to the site

where the terms and details of the drug buy were negotiated. On the night of the actual drug deal,

Conrod was driving a Corvette while others with him drove a Maxima. As he is the sole owner of the
van, there are no innocent third parties that could be affected.

¶19. For forfeiture to be permissible, there must be sufficient nexus between the offense and the

property and the extent of the property's role in the offense. The crime at issue here is not an isolated

case of mere possession of a small quantity of illegal drugs. Conrod pled guilty to conspiracy to

distribute a large amount of cocaine. In furtherance of this conspiracy, Conrod used the van to

facilitate the eventual drug deal, which gives the van a role in the conspiracy. In addition, the van

provided a cover for Conrod, as a different vehicle was employed to consummate the sale. The nexus

between the property, the van, and the offense, conspiracy to distribute, was sufficiently established

and the lower court was not clearly erroneous in its finding that the van should be forfeited.

¶20. We now proceed to determine whether the forfeiture of the van was excessive in light of the

Eighth Amendment. Our inquiry brings us to the fourth prong of the test that we have set forth

above. Specifically, we must determine whether, after a review of all relevant facts, the forfeiture

divests the owner of property which has a value that is grossly disproportionate to the crime or

grossly disproportionate to the culpability of the owner.

¶21. After careful review of the record, we hold that the forfeiture of the van was not grossly

disproportionate to the crimes committed or grossly disproportionate to the culpability of Conrod. As

noted above, Conrod was engaged in a conspiracy to distribute a large amount of cocaine. When

arrested, Conrod had over $90,000 in his possession. In light of the severity of the crime and the

amount of drugs and money involved, we can not say that the lower court erred in ordering forfeiture

of the 1979 Ford van. The forfeiture of the van is affirmed.

The two bank accounts

¶22. Conrod argues that there was insufficient evidence to support a judgment of forfeiture of the

two bank accounts. The burden of proof the State must meet in forfeiture proceedings is a

preponderance of the evidence. Miss. Code Ann. § 41-29-179(2) (1993). The State used the

testimony of Agent Anderson to tie together the van and the bank accounts with illegal drug

transactions. Anderson testified that Conrod told her that his grocery store was not doing well. As to

the bank accounts, Anderson testified that she could not point to any drug sale or transaction that

contributed proceeds to either the $6,912 or the $6,061.90 account. Conrod's accountant testified

that he prepared Conrod's income tax returns in 1988, 1989, and 1990. The testimony indicated that

Conrod had excessive amounts of cash in excess of what would normally be expected from the

operation of a store or working at a factory.

¶23. This Court has held that when a judge sits without a jury, it will not overturn a finding unless the

judge was clearly erroneous or applied incorrect legal standards. McClendon v. State, 539 So.2d

1375, 1377 (Miss. 1989). In Mullins v. Ratcliff, 515 So.2d 1183, 1189 (Miss. 1987), this Court held

that it will not reverse a trial court's finding of fact unless it is manifestly wrong. It is not necessary

for the government to trace property to a particular drug transaction for property to be forfeited;

rather, it is a totality of the circumstances, not a minute accounting of each item of information, that

leads to meeting the burden of proof. United States v. 127 Shares of Stock in Parodign Mfg., Inc.,

758 F.Supp. 581 (E.D. Cal. 1990).

¶24. We find that the trial judge was clearly erroneous in determining that the bank accounts could be
forfeited. The State's witness could not tie the monies in the bank accounts with any criminal conduct

on behalf of Conrod. Thus, there is no nexus between the bank and the crime committed by Conrod.

As to the two bank accounts, we hold that there was insufficient evidence to hold that the

relationship of the property was close enough to render the property guilty and thus forfeitable. We

reverse and render as to the forfeiture of the two bank accounts.

B. Does this forfeiture violate the Double Jeopardy Clause of the Fifth Amendment?

¶25. Conrod asserts that the beginning of forfeiture proceedings after he had entered a plea of guilty

violates the Double Jeopardy Clause of the Fifth Amendment. Conrod did not raise this issue in the

lower court. It is established that this Court will not review matters on appeal that were not

considered by the lower court. Ditto v. Hinds County, 665 So.2d 878, 880 (Miss. 1995). This issue

is procedurally barred.

II. DID THE TRIAL COURT ERR BY QUESTIONING THE WITNESS?

¶26. During the forfeiture hearing, the judge directly asked several questions of the witnessess,

including the defendant. Conrod argues this was error because it amounted to the court literally

prosecuting the case on behalf of the State.

¶27. Rule 614(b) of the Mississippi Rules of Evidence specifically provides that the "court may

interrogate witnesses, whether called by itself or by a party." "A trial judge has the responsibility,

within judicial discretion, of confining the testimony during trial to the issues before it." Hannah v.

State, 336 So.2d 1317, 1321 (Miss. 1976). The questions asked by the lower court in this case all

had to do with the issues brought out during that particular witness's testimony. The lower court

appropriately confined its questions. The State also noted that the main concern in those cases cited

by Conrod addressing this issue is the possible influence of a jury by the questions and comments of

the judge. The case at bar was a bench trial. Furthermore, the record reveals that counsel for Conrod

was allowed to question each witness following questioning by the court. The lower court is affirmed

on this issue.

III. DID THE TRIAL COURT ERR BY ALLOWING THE STATE TO RECALL

AGENT ANDERSON AS A REBUTTAL WITNESS WHEN THE RULE HAD BEEN

INVOKED?

¶28. The State called Agent Anderson in rebuttal to which Conrod objected based on the fact that the

Court ordered witnesses excluded from the courtroom at the request of counsel for the State,

pursuant to M.R.E. 615, a practice known in Mississippi trial procedure as invoking "the Rule".

Agent Anderson testified first and apparently remained in the courtroom throughout the trial. The

lower court allowed the examination. Conrod asserts that this was error.

¶29. M.R.E. 615 provides that the court, at the request of either party or on its own motion, shall

order witnesses excluded from the courtroom so that they can not hear the testimony of other

witnesses. M.R.E. 615. However, the rule authorizes the State to have a designated representative

present for the trial. Id. It does not appear Agent Anderson was so designated in the record.

¶30. Whether a witness may testify after being present in the courtroom for the testimony of previous
witnesses is within the discretion of the trial judge. Davis v. State, 472 So.2d 428, 434 (Miss. 1985).

A review of the record reveals that the State asked only two questions of Agent Anderson on

rebuttal. Further review of the record reveals that neither question concerned the subject matter of

the forfeiture proceedings. Additionally, Conrod was afforded an opportunity to, and did, conduct a

rebuttal cross examination on Agent Anderson. Under these facts, the trial judge did not abuse his

discretion in allowing Anderson to testify in rebuttal. This assignment of error is without merit.

CONCLUSION

¶31. Because there was insufficient evidence to establish a nexus between the bank accounts and the

crimes committed by Conrod, we can not hold that the two bank accounts are "proceeds" of illegal

activity. Therefore, the two bank accounts were not properly ordered forfeited and we reverse and

render as to this issue.

¶32. The 1979 Ford van was used to facilitate the furtherance of the conspiracy, and taking into

account the severity of the crime and the amount of drugs and money involved, its forfeiture was not

grossly disproportionate to the crimes committed. The lower court correctly ordered forfeiture of the

van and we affirm. The remaining assignments of error asserted by Conrod are without merit.

¶33. AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., CONCUR. McRAE, J., DISSENTS

WITH SEPARATE WRITTEN OPINION. BANKS, J., CONCURS IN PART AND DISSENTS

IN PART WITH SEPARATE WRITTEN OPINION. SMITH, J., CONCURS IN PART AND

DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY ROBERTS AND

MILLS, JJ.

McRAE, JUSTICE, DISSENTING:

¶34. I respectfully dissent.

¶35. The majority states that Conrod did not raise a claim of double jeopardy in the lower court and

that as a result, the issue is barred. However, this Court does not apply procedural bars when error

affects fundamental constitutional rights, and an individual's protection from double jeopardy is such

a fundamental right. Fuselier v. State, 654 So. 2d 519, 522 (Miss. 1995). Accordingly, Conrod's

assertions should be evaluated by this Court. I am compelled, then, to address the unconstitutionality

of the forfeiture of Conrod's van.

¶36. The van in this forfeiture proceeding was used in connection with the criminal offense to which

Conrod previously pleaded guilty. Therefore, the subsequent attempt by the State to command

forfeiture of the van subjected the State's action to analysis pursuant to the Double Jeopardy Clause

of the Mississippi Constitution. See Miss. Const. art. 3, §§ 22, 28. While the Mississippi forfeiture

statute attempts to categorize this forfeiture as civil in nature, it clearly derives from a criminal

charge.
¶37. The majority reasons that since the van in this case was used to facilitate the sale of drugs, it

could be forfeited. Pursuant to the Mississippi Constitution, "[n]o person's life or liberty shall be

twice placed in jeopardy for the same offense; but there must be an actual acquittal or conviction on

the merits to bar another prosecution." Miss. Const. art. 3, § 22. Under the majority interpretation of

the Mississippi Double Jeopardy Clause, recently espoused in Keyes v. State, 708 So. 2d 540, 548

(Miss. 1998), jeopardy does not attach without a proceeding, or the risk of a determination of guilt.

Apparently, a defendant may be punished repeatedly (and indefinitely), so long as those punishments

are not brought in a "proceeding." It seems, then, that if the State charges and convicts a defendant

of a crime, and subsequently begins a civil forfeiture "proceeding," double jeopardy analysis must

apply, at least under the Double Jeopardy Clause of the Mississippi Constitution and this Court's

interpretation of it. Here, the defendant has already been convicted, and the second proceeding

constitutes a subsequent determination of guilt. Although the majority may reason that the "guilty

property" is the focus of the second proceeding, such a forfeiture is really a determination of the

culpability of an individual defendant, no matter how it is couched semantically. This fiction should

not "hold water" when viewed in light of the Mississippi Constitution, which provides that no person

shall be deprived of his property without due process of law. Miss. Const. art. 3, §14. To be certain,

the "guilty property" fiction has outlived its usefulness. See State v. Fleming, No. 96-KA-00272-

SCT, 1998 WL 304544 at *4 (Miss. June 11, 1998)(McRae, J., dissenting).

¶38. Once the State seizes property under the claim that it was an instrumentality of a crime, double

jeopardy analysis must be triggered. In effect, the State is taking property related to a crime for which

a defendant has already been charged and convicted. The State cannot proceed as it did in this case

without violating the Double Jeopardy Clause. If the forfeiture of property results in a defendant

being subjected to multiple punishments for the same offense, the Double Jeopardy Clause protects

the property from forfeiture. The only manner by which the State should be able to seize property is

to do so at the actual time a defendant is charged with a crime and to combine the criminal

proceeding with the forfeiture proceeding.

¶39. It is for these reasons that I dissent. Realizing the potential for injustice being imposed upon

individuals, the majority apparently expresses some interest in closely scrutinizing the constitutionality

of forfeitures pursuant to the Excessive Fines Clause of the Mississippi Constitution. This Court

should also be analyzing Mississippi's forfeiture scheme under the lens of the Double Jeopardy Clause.

Given the protections afforded by the Double Jeopardy Clause of the Mississippi Constitution,

Conrod's van should not have been forfeited.

BANKS, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶40. I agree wholeheartedly with the test that the court enunciates and its disposition with respect to

the bank accounts. I disagree, however, with its application of the instrumentality prong of its test to

the van in question. In my view, the record in this case does not indicate that the van played a

substantial role in the criminal conduct. It follows that an instrumentality analysis which conforms to

the Excessive Fines Clause would dictate reversal, even though a proportionality analysis would not.

¶41. The instrumentality test focuses the analysis of excessiveness on whether the property in

question was sufficiently instrumental in the commission of the underlying crime to warrant its
forfeiture. Under this test, a forfeiture is unconstitutionally excessive if it is not adequately connected

to the commission of the crime so as to be "tainted" by the illegal activity and, consequently,

forfeitable. Examples of "tainted" property include items such as the actual cash proceeds from illegal

commercial activities or the home in which an illegal drug enterprise was operating.(3) See, e.g. State

v. Meister, 866 S.W.2d 485 (Mo. Ct. App. 1993) (proceeds from drug sales); In re King Properties,

635 A.2d 128 (Pa. 1993) (residence in which drug sales were believed to have occurred).

¶42. The "instrumentality" test relies on the theory that civil forfeiture has traditionally been designed

to assess punishment against offensive property that has played a guilty role in the commission of a

crime, as distinct from punishing a human defendant for his guilty role in the commission of a crime.

Austin v. United States, 509 U.S. 602, 615 (1993) (citing The Palmyra, 25 U.S. (12 Wheat.) 1, 14-

15 (1827) (forfeiture of vessel for piracy); Harmony v. United States, 43 U.S. (2 How.) 210, 233-34

(1844) (forfeiture of vessel for piracy, although not the cargo); Dobbins's Distillery v. United States,

96 U.S. 395, 400-403 (1878) (forfeiture of distillery and real property for evasion of revenue laws);

J.W. Goldsmith, Jr.-Gran Co. v. United States, 254 U.S. 505, 510-511 (1921) (forfeiture of goods

concealed to avoid taxes)). Because the property itself is considered the offending party, the

instrumentality test focuses its analysis on how closely the property is tied to the crime. Only if the

property has been instrumental in the commission of the crime, in the sense of having played a

substantial role, it is forfeiture is constitutional.

¶43. As the majority notes the United States Court of Appeals for the Fourth Circuit has addressed

the instrumentality test. United States v. Chandler, 36 F.3d 358 (4th Cir. 1994). The court held that

in determining the excessiveness of an in rem forfeiture under the Eighth Amendment, "a court must

apply a three-part instrumentality test that considers (1) the nexus between the offense and the

property and the extent of the property's role in the offense, (2) the role and culpability of the owner,

and (3) the possibility of separating offending property that can readily be separated from the

remainder." Id. at 365. These same factors are adopted by today's majority. The Chandler court went

on to further refine the analytical factors in determining part (1) of the test, the nexus between the

offense and the property as follows:

[i]n measuring the strength and extent of the nexus between the property and the offense, a

court may take into account the following factors: (1) whether the use of the property in the

offense was deliberate and planned or merely incidental and fortuitous; (2) whether the property

was important to the success of the illegal activity; (3) the time during which the property was

illegally used and the spacial extent of its use; (4) whether its illegal use was an isolated event or

had been repeated; and (5) whether the purpose of acquiring, maintaining or using the property

was to carry out the offense. No one factor is dispositive but, to sustain a forfeiture against an

Eighth Amendment challenge, the court must be able to conclude, under the totality of

circumstances, that the property was a substantial and meaningful instrumentality in the

commission of the offense, or would have been, had the offensive conduct been carried out as

intended.

Id. (emphasis added). In my view, consideration of these factors is a sensitive and systematic

approach to the task compelled by the Excessive Fines Clause.

¶44. In United States v. One 1990 Ford Ranger Truck, VIN No. 1FTCR10TALUCO8885, 876
F.Supp. 1283 (N.D. Ga. 1995), aff'd on reh'g, 888 F.Supp. 1170 (N.D. Ga. 1995), we find an

example of the application of these criterias. The federal district court applied a portion of the

Chandler formulation to conclude that the forfeiture of the defendant truck was an unconstitutionally

excessive fine. In conducting its analysis, the court adopted the jury findings that the defendant truck

had been used to transport hallucinogenic mushrooms from the owner's home to a Grateful Dead

concert at the Atlanta Omni Coliseum and that the owner and the other passenger in the vehicle were

preparing to ingest or otherwise utilize the mushrooms unlawfully when officers approached the

defendant vehicle. One 1990 Ford Ranger Truck, VIN No. 1FTCR10TALUCO8885, 888 F.Supp.

at 1175.

¶45. Although the defendant's vehicle was found to have been used to transport the controlled

substances, the court concluded "that the connection between the truck and the illegal activity at

issue [was] too attenuated to satisfy the Eighth Amendment, under the factors listed by the Chandler

court." Id. at 1175. Upon reconsideration, the court reiterated the various Chandler factors that

weighed against forfeiture, including: (1) "[t]here was no evidence that the truck was used

extensively in connection with the drug activity at issue in this case, or in connection with any other

drug activity;" (2) "there was no evidence that the truck was purchased for the purpose of engaging

in drug-related activities;" and (3) "there was no evidence that the truck was important to the offense

at issue." Id. at 1176.

¶46. The court considered the argument that the truck was purposefully selected by the claimants for

the purpose of dividing, consuming, or otherwise using the mushrooms. In response, the court stated

that "there was no evidence that the truck was special in some way that another location (such as a

public restroom or the shelter of a suitable outdoor structure) would not have been. If the court

accepted the government's argument [that the choice of the truck was deliberate and thus legally

important], then any place where illegal activity occurred would be imbued with special significance

simply because the illegal activity occurred there and not somewhere else." Id. After noting the

difference between the deliberate choice of the vehicle and the legal importance of the vehicle, the

court concluded that the instrumentality test had not been satisfied.

¶47. In my view the majority fails to correctly analyze the facts in applying the instrumentality prong

of the test it enunciates. There is no evidence which suggests that the illegal use of the property was

other than an isolated event or that the van was purchased or especially maintained to carry out the

purchase and use of illegal drugs. There is little in the record to suggest that the use of the van, as

opposed to some other mode of transportation, was deliberate. In fact, when he sought to

consummate the proposed transaction, Conrod drove his Corvette and others with him drove a

Maxima. There is nothing to suggest that the use of the van on the occasion of the negotiation was

other than a fortuitous and isolated occurrence. Furthermore, there is nothing to suggest that the use

of the van on the evening of the negotiation was important to the criminal enterprise. See United

States v. Chandler, 36 F.3d 358 (4th Cir. 1994) (finding that use of a 33-acre farm in extensive drug

transactions had been important to the illegal activity where farm was secluded off of a private road

and owner had installed a security camera on the private driveway in order to utilize the property's

seclusion in carrying out drug transactions, and farm's caretakers were paid in drugs); cf. United

States v. One 1990 Ford Ranger Truck, VIN No. 1FTCR10TALUCO8885, 888 F.Supp. 1170,

1176 (N.D. Ga. 1995) (holding that truck in which owner and passenger had transported illegal drugs

and in which they were preparing to ingest was not sufficiently instrumental to the illegal activity to
pass constitutional muster) (citing United States v. Real Property Located at 6625 Zumirez Drive,

845 F.Supp. 725, 737 (C.D. Cal. 1994) ("[F]or the property to be the site of the illegal activity,

without more, does not render the property an integral part of the activity.")).

¶48. The majority, in essence, suggests that because this was a conspiracy involving a large amount of

drugs rather than an isolated instance, the van was per force instrumental. The test is not whether the

transaction is isolated but rather whether the use of the van is. It also suggests that the van was

possibly used as a cover. This suggestion is curious in light of the fact that the van was owned by the

alleged drug dealer and registered solely in his name. Clearly it provided no more cover and possibly

less than any other vehicle. In my view the use of the van was not shown to be "a substantial and

meaningful instrumentality in the commission of the offense." I would reverse the judgment of the trial

court because the record does not indicate a sufficient nexus between the property and the crime to

justify this forfeiture under the Excessive Fines Clause of our constitutions.

SMITH, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶49. In the case sub judice, the majority declines to employ solely the instrumentality test and adopts

the use of both the instrumentality and proportionality review in regards to forfeiture of property.

This combined test is unnecessary. Therefore, I respectfully dissent to this portion of the majority

opinion.

¶50. Scalia's instrumentality test provides a sufficient analysis for forfeiture cases. As the majority

stated, "[t]his test focuses on how closely the property is tied to the crime and whether the property

was instrumental to the crime committed. If the . . . three requirements are met, the forfeiture is

considered constitutional." Under this test, if the forfeited property meets the test of instrumentality,

it is never excessive. Therefore, further analysis under the proportionality review is superfluous.

¶51. Furthermore, in adopting the "instrumentality test" in Austin, Justice Scalia wrote that the

"relevant inquiry for an excessive forfeiture under § 881 is the relationship of the property to the

offense: Was it close enough to render the property, under traditional standards, 'guilty' and hence

forfeitable?" Austin, 509 U.S. at 628 (Scalia, J., concurring in part). Consequently, if the property is

"guilty," it cannot be excessive.

¶52. The "proportionality review" may be appropriately utilized in those cases where the property

seized is not an instrumentality to the crime. The court may in these instances consider employing the

"proportionality test," which compares the value of the property forfeited with the severity of the

crime committed.

¶53. Because forfeiture is an in rem action, the "instrumentality test" is the appropriate analysis and

under this test the van in the case sub judice was properly forfeited. Also utilizing the "instrumentality

test" the majority correctly concluded that the money was not properly forfeited since it could not be

connected to the crime.

ROBERTS AND MILLS, JJ., JOIN THIS OPINION.
1. The action originally involved certificates of deposit, bank accounts, two vehicles, and other

defendants with various ownership interests.

2. The sole instrumentality test advocated by Justice Scalia in his concurring opinion in Austin was

not joined by any of the other justices.

3. Although direct proceeds from illegal transactions are perhaps the clearest example of "tainted" or

"guilty" property, their forfeiture does not trigger the restraints of the Excessive Fines Clause in the

manner that the forfeiture of other types of "tainted" property does. Direct proceeds from illegal

transactions are contraband in which a claimant has no constitutionally protected property interest.

Thus, its forfeiture by the government is not a fine.