CORRECTED OPINION

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

v.

$79,650.00 SEIZED FROM BANK OF

AMERICA ACCOUNT ENDING IN 8247,

at Bank of America, 7400 Little  No. 10-1291 River Turnpike, Annandale,

Virginia, in the Name of Girma

Afework,

Defendant-Appellee,

GIRMA AFEWORK,

Claimant-Party in Interest. 
UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

$79,650.00 SEIZED FROM BANK OF

AMERICA ACCOUNT ENDING IN 8247,

at Bank of America, 7400 Little  No. 10-1294 River Turnpike, Annandale,

Virginia, in the Name of Girma

Afework,

Defendant-Appellee,

GIRMA AFEWORK,

Claimant-Appellant. 

Appeals from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Ivan Darnell Davis, Magistrate Judge.

(1:08-cv-01233-IDD)

Argued: January 27, 2011

Decided: May 9, 2011

Corrected Opinion Filed: June 2, 2011

Before TRAXLER, Chief Judge, and KING and WYNN,

Circuit Judges.

No. 10-1291 vacated and remanded; No. 10-1294 affirmed by

published opinion. Judge King wrote the opinion, in which

Chief Judge Traxler and Judge Wynn joined.

2 UNITED STATES v. $79,650.00 SEIZED FROM BANK
COUNSEL

ARGUED: Gordon D. Kromberg, OFFICE OF THE

UNITED STATES ATTORNEY, Alexandria, Virginia, for

the United States. Richard E. Gardiner, Fairfax, Virginia, for

Party in Interest. ON BRIEF: Neil H. MacBride, United

States Attorney, Karen Ledbetter Taylor, Assistant United

States Attorney, OFFICE OF THE UNITED STATES

ATTORNEY, Alexandria, Virginia, for the United States. 

OPINION

KING, Circuit Judge:

Following civil forfeiture proceedings in the Eastern District of Virginia, the government has appealed from the district court’s post-judgment order of January 15, 2010,

reducing on Eighth Amendment grounds the forfeiture judgment from $79,650 to $50,000. See United States v.

$79,650.00 Seized from Bank of Am. Account Ending in 8247,

No. 1:08-cv-01233 (E.D. Va. Jan. 15, 2010) (the "Order").1

Girma Afework, the claimant-party in interest, has crossappealed, seeking relief from the court’s judgment of December 8, 2009, ruling that he engaged in currency structuring, a

federal offense warranting the forfeiture. See United States v.

$79,650.00 Seized from Bank of Am. Account Ending in 8247,

No. 1:08-cv-01233 (E.D. Va. Dec. 8, 2009) (the "Judgment").2

As explained below, we reject Afework’s cross-appeal (No.

10-1294) and affirm the court’s determination that he committed multiple instances of currency structuring. With respect to

the government’s appeal (No. 10-1291), however, we conclude that the court misperceived the authorized penalty for

1The Order is found at J.A. 180. (Citations herein to "J.A. __" refer to

the contents of the Joint Appendix filed by the parties in this appeal.) 

2The Judgment is found at J.A. 22. 

UNITED STATES v. $79,650.00 SEIZED FROM BANK 3
purposes of its Eighth Amendment proportionality analysis,

and thus vacate the Order and remand.

I.

A.

During 2006 and 2007, Girma Afework, an Ethiopian citizen residing in the Eastern District of Virginia, maintained

bank accounts at PNC Bank and Bank of America. On April

2, 2007, Afework presented himself at a branch of PNC Bank

in Fairfax, Virginia, intending to deposit $79,650 in cash (the

"Defendant Money," or the "Money"). While there, Afework

was told that a cash deposit of more than $10,000 would

require, pursuant to an applicable banking regulation, the

bank’s completion of a form. To avoid having the bank complete the form, Afework deposited only $9900. He made

another $9900 currency deposit later that same day at a Fairfax branch of Bank of America. Afework then deposited the

balance of the Defendant Money by making similar cash

deposits — one per day at each of the two banks — on April

3, 4, and 5, 2007. Afework thus engaged in eight separate currency transactions at the two banks, ranging in amount from

$9900 to $9980, thereby managing to fully deposit the Money

without causing the banks to file any forms. In April and May

2007, Afework consolidated the entirety of the Money into a

single account at Bank of America.

B.

On February 21, 2008, the Postal Inspectors executed a

warrant for an arrest in rem, seizing the Defendant Money

from Bank of America. Several months later, on November

26, 2008, the government filed its Complaint for forfeiture of

the Money, pursuant to 31 U.S.C. § 5317(2), alleging that the

currency deposits of the Money were illegally structured by

Afework, in contravention of 31 U.S.C. § 5324.3 On Decem3Section 5324 of Title 31, which is entitled "Structuring transactions to

evade reporting requirement prohibited," provides in subsection (a)(3) that

4 UNITED STATES v. $79,650.00 SEIZED FROM BANK
ber 30, 2008, Afework asserted an interest in the Money, filing a claim pursuant to Rule G(5)(a)(i) of the Supplemental

Rules for Admiralty or Maritime Claims and Asset Forfeiture

Actions, which provides that "[a] person who asserts an interest in the defendant property may contest the forfeiture by filing a claim in the court where the action is pending."

The magistrate judge thereafter denied the parties’ respective dispositive motions and, on December 8, 2009, conducted

a bench trial.4 The government called three trial witnesses:

Secret Service Agents Scott McGuckin and Rodney Smith,

plus Afework himself. Agent McGuckin testified regarding,

inter alia, his analysis of Afework’s bank accounts, and Agent

Smith testified about his investigative interview of Afework

concerning his currency transactions. Importantly, Agent

Smith explained that Afework had previously engaged in similar currency structuring activities. More specifically, seven

months prior to the activities on trial, on October 27, 2006,

Afework had made three cash deposits, two of $9000 and one

of $2000, at the same banks where he engaged in his April

2007 currency transactions. Afework acknowledged having

discussions with the various bank tellers in April, and testified

about the reporting requirements and the extent of his awareness that banks are obligated to report currency transactions

in excess of $10,000. Because this forfeiture proceeding is

civil in nature, the government was obliged to prove at trial

the predicate § 5324 offenses by a preponderance of the evidence. See United States v. Liquidators of European Fed.

no person shall "structure or assist in structuring, or attempt to structure

or assist in structuring, any [currency] transaction with one or more

domestic financial institutions." Under § 5317(2), "[a]ny property

involved in a violation of section [5324] may be seized and forfeited to the

United States." 

4On June 5, 2009, pursuant to 28 U.S.C. § 636(c) and Federal Rule of

Civil Procedure 73, the parties consented to the exercise of jurisdiction by

the magistrate judge. As a result, the relevant proceedings in the district

court were handled and disposed of by the magistrate judge. 

UNITED STATES v. $79,650.00 SEIZED FROM BANK 5
Credit Bank, 630 F.3d 1139, 1150 (9th Cir. 2011) (citing

United States v. One Assortment of 89 Firearms, 465 U.S.

354, 361-62 (1984)).

At the trial’s conclusion, the magistrate judge ruled from

the bench, first explaining that a § 5324 offense has three elements, which he identified as follows: (1) that "a person

knowingly structured, attempted to structure, [or] assisted in

structuring a currency transaction"; (2) that "the person knew

of the domestic financial institution’s legal obligation to

report transactions in excess of $10,000"; and (3) that "the

purpose of the structured transaction was to evade that reporting obligation." J.A. 104-05. Relevant to this appeal, the

judge found, as to the second of those elements, that "Afework knew of the domestic financial institution’s legal obligation to report transactions in excess of $10,000." Id. at 114.

The judge premised this finding primarily on Agent Smith’s

testimony that Afework had admitted knowing that "there was

a . . . banking regulation form," see id. at 53, as well as Afework’s own testimony, which (although contradictory)

revealed his knowledge that the reporting form had to be completed pursuant to a banking regulation, see id. at 112.5

 Additionally, as to the third element, the judge found that,

"because [Afework] had such knowledge and he continued to

deposit these amounts over a period of time in less than

$10,000[,] . . . [his] purpose . . . was . . . evading the reporting

obligation by both PNC and Bank of America banks." Id. at

114-15. The judge thus ruled that the requirements of § 5324

5As the magistrate judge explained, Afework initially "said that the

teller did not tell him that . . . the form was required by a banking regulation"; however, Afework later "changed his testimony . . . and said that the

PNC teller told him it was a banking regulation." J.A. 112. Furthermore,

the judge emphasized that Afework had no answer when asked why he

had, after his first $9900 deposit on April 7, 2007, at PNC Bank, structured his second deposit of the day at Bank of America, though he had

previously asserted his belief that each bank had its own rules and there

was no reason for him to think that Bank of America had the same reporting rule as PNC Bank. See id. at 113. 

6 UNITED STATES v. $79,650.00 SEIZED FROM BANK
were satisfied and that forfeiture of the Defendant Money was

warranted. It then entered its Judgment of December 8, 2009,

ordering that the United States recover the Money from Afework.

C.

During the trial, Afework had asserted that the Excessive

Fines Clause of the Eighth Amendment barred forfeiture of

the Money. See U.S. Const. amend. VIII (providing that

"[e]xcessive bail shall not be required, nor excessive fines

imposed"). The judge deferred ruling on the excessive fines

issue pending briefing by the parties.

On December 18, 2009, ten days after the trial, Afework

formally moved to dismiss the Judgment (the "Excessive

Fines Motion"), contending that the $79,650 forfeiture was

constitutionally excessive because that amount was disproportionate to the fine authorized under the Sentencing Guidelines. See United States v. Bajakajian, 524 U.S. 321, 336-37

(1998) (requiring, for purposes of an excessive fines issue,

that a proportionality analysis be conducted, assessing

whether "the amount of the forfeiture is grossly disproportional to the gravity of the defendant’s offense"). The government responded that, in light of Afework’s (uncharged)

criminal activity and the maximum statutory fine for his

offenses of currency structuring, forfeiture of the Money was

not constitutionally excessive. More specifically, the government maintained that the Guidelines were no longer relevant

to the Bajakajian proportionality analysis because of the

Supreme Court’s decision in United States v. Booker, 543

U.S. 220 (2005), which rendered the Guidelines advisory. As

such, the government asserted that a maximum statutory fine

of $250,000 — rather than the advisory Guidelines fine —

was the appropriate measuring stick for an excessive fines

proportionality analysis.6 The government also contended

6As discussed infra, the government now argues that the maximum statutory fine was miscalculated in the district court and that, pursuant to

UNITED STATES v. $79,650.00 SEIZED FROM BANK 7
that, even if the magistrate judge could properly look to the

Guidelines, Afework’s relevant conduct included his earlier

structuring activities. In support of this contention, the government filed the affidavit of Agent Smith, who explained that

Afework had structured $86,200 of currency deposits between

October 2006 and February 2007.7

On January 15, 2010, the magistrate judge heard argument

on the Excessive Fines Motion. Afework maintained, contrary

to the government’s assertions, that the Guidelines provided

the appropriate benchmark for establishing the forfeiture

amount and that his earlier structuring activities were not relevant to the Guidelines calculation. Afework thus contended

that his offense level was only six, see USSG § 2S1.3 (2009),

yielding an advisory Guidelines fine of up to $5000, see id.

§ 5E1.2. The government’s position was vastly different —

that the applicable fine was the statutory maximum, then

thought to be $250,000, and that, in any event, the forfeiture

Judgment was not constitutionally excessive even when compared to the fine authorized by the Guidelines. According to

the government, the appropriate Guidelines offense level was

either 20 or 22, each of which yields a maximum advisory

fine of $75,000.

§ 5324(d)(2) of Title 31, the maximum fine is $500,000 — which is the

"Enhanced penalty for aggravated cases." The government also asserts that

the Guidelines do not specify the fine for structuring offenses when the

maximum statutory fine is more than $250,000. 

7

In his affidavit, Agent Smith explained that Afework’s previous structuring activities encompassed three other periods of currency deposits. In

October 2006, Afework made three currency deposits, two of $9000 and

one of $2000. Between December 2006 and January 2007, he made four

currency deposits, three of $9000 and one of $1500. Finally, in February

2007, Afework made four additional currency deposits, ranging from

$8500 to $9950. These eleven currency deposits were made at the same

banks where Afework made the April 2007 deposits underlying the forfeiture. 

8 UNITED STATES v. $79,650.00 SEIZED FROM BANK
At the conclusion of the hearing, the magistrate judge ruled

that the advisory Guidelines fine — and not the statutory

maximum fine — provided the proper comparison for its

Eighth Amendment proportionality analysis. The judge also

found that Afework’s earlier structuring activities (between

October 2006 and February 2007) constituted relevant conduct and that the aggregate amount of structured currency

deposits made by Afework exceeded $165,000. The judge

then determined that the Guidelines offense level was 18,

resulting in an advisory fine range of $6000 to $60,000. Predicated thereon, the court fixed the forfeiture amount at

$50,000. Accordingly, the January 15, 2010 Order specified

that "the forfeiture amount is reduced to a fine of $50,000,

payable by [Afework] to the Government."8 As heretofore

explained, the government and Afework have filed separate

notices of appeal, and we possess jurisdiction pursuant to 28

U.S.C. § 1291.

II.

A.

Turning to the merits, we first dispose of Afework’s sole

contention in his cross-appeal — that the government was

required but failed to prove that he had actual knowledge of

the banks’ obligation to report currency transactions in excess

of $10,000 to the government. Section 5313 of Title 31

obliges domestic financial institutions (e.g., PNC Bank and

Bank of America) to report certain transactions to the Secretary of the Treasury, including currency transactions exceeding $10,000. See 31 C.F.R. § 103.22(b)(1) ("Each financial

institution . . . shall file a report of each deposit . . . which

involves a transaction in currency of more than $10,000.").

8Although the Order refers to a fine of $50,000 — rather than the forfeiture of that sum — a civil forfeiture is considered to be a punishment and,

thus, constitutes a fine for purposes of an Eighth Amendment proportionality analysis. See United States v. Austin, 509 U.S. 602, 622 (1993). 

UNITED STATES v. $79,650.00 SEIZED FROM BANK 9
Pursuant to the implementing regulations, such currency

transactions are specifically reported to the Internal Revenue

Service (the "IRS"). See id. § 103.27(a)(4). Afework asserts

that, although he knew that these banks were obligated to

report currency transactions in excess of $10,000, he believed

that the reporting requirement stemmed from internal bank

rules unique to PNC Bank and Bank of America. According

to Afework, he did not know that the banks were obliged to

report such transactions to the government — and the government failed to present sufficient evidence to prove otherwise.9

Afework contends that, as a result, there was insufficient

proof that he contravened 31 U.S.C. § 5324.

In assessing such a sufficiency challenge, we view the evidence in the light most favorable to the prosecution and determine whether "substantial evidence" supports the judgment.

See United States v. Jeffers, 570 F.3d 557, 565 (4th Cir.

2009); see also United States v. Whorley, 550 F.3d 326, 338

(4th Cir. 2008) (defining "substantial evidence" as "evidence

that a reasonable finder of fact could accept as adequate and

sufficient"). At trial, the magistrate judge was presented with

testimony from both Agent Smith and Afework concerning

Afework’s knowledge that the banks were obligated to file the

currency reporting forms pursuant to a banking regulation —

a regulation which, contrary to some of Afework’s assertions,

was a government regulation and not unique to each bank. In

9Afework’s opening appellate brief asserted that the United States was

required to prove his knowledge that the currency reporting forms were to

be filed "with the IRS." That position was refined in his reply brief, however, where Afework recognized that the United States only had to prove

knowledge that the reporting forms were to be filed "with the government." Two potentially fatal hurdles arise therefrom — first, that his

appellate contention was waived by not being properly presented in the

opening brief, and, second, that Afework had admitted (in his opening

brief) that there was sufficient proof of his knowledge that the reporting

forms had to be filed with the government. We will proceed beyond those

hurdles, however, and nevertheless assess the merits of Afework’s sufficiency challenge as most recently refined. 

10 UNITED STATES v. $79,650.00 SEIZED FROM BANK
making his factual findings the judge was entitled to make

appropriate credibility determinations and to draw reasonable

inferences from the trial testimony. Viewed in context, the

totality of the evidence — and in particular the compelling

evidence of prior structuring activities — was more than sufficient to justify the court’s findings in support of the § 5324

offenses. We therefore reject Afework’s cross-appeal and

affirm the Judgment’s determination, by a preponderance of

the evidence, that he committed the offenses of currency

structuring.

B.

We turn finally to the government’s appeal, by which it

challenges the magistrate judge’s Order reducing the forfeiture amount on Eighth Amendment grounds from $79,650 to

$50,000. We review de novo whether a forfeiture of property

contravenes the Excessive Fines Clause of the Eighth Amendment. See United States v. Jalaram, 599 F.3d 347, 351 (4th

Cir. 2010). Significantly, the government contends that the

judge erred in relying on the Guidelines for its Eighth Amendment proportionality analysis, because the fine table in Guidelines section 5E1.2 is simply inapplicable where — as here —

the statutory maximum fine exceeds $250,000. See USSG

§ 5E1.2(c)(4) (2009) (explaining that fine table does not apply

"if defendant is convicted under a statute authorizing . . . a

maximum fine greater than $250,000").

Under § 3571(b)(3) of Title 18, "an individual who has

been found guilty of an offense may be fined . . . for a felony,

not more than $250,000." Pursuant to 31 U.S.C. § 5324(d)(2),

however, the $250,000 maximum fine must be doubled under

the aggravated facts of this case because

[w]hoever violates [§ 5324] as part of a pattern of

any illegal activity involving more than $100,000 in

a 12-month period shall be fined twice the amount

provided in subsection (b)(3) . . . of section 3571.

UNITED STATES v. $79,650.00 SEIZED FROM BANK 11
As found by the magistrate judge in connection with the

Order, Afework structured more than $100,000 (i.e., at least

$165,000) in a twelve-month period (i.e., the seven-month

period between October 2006 and April 2007). Accordingly,

this is an aggravated case under § 5324(d)(2), the statutory

maximum fine was $500,000, and the fine table in section

5E1.2 of the Guidelines is inapplicable. The parties, however,

did not recognize this legal point in the underlying proceedings and thus failed to alert the magistrate judge to his misapprehension of the applicable law.

As the Supreme Court explained in Bajakajian, a forfeiture

of property will violate the Excessive Fines Clause only if it

is "grossly disproportional" to the gravity of the offense. See

524 U.S. 321, 336 (1998); see also United States v. Ahmad,

213 F.3d 805, 815 (4th Cir. 2000) (recognizing that Bajakajian applies when determining "whether any punitive forfeiture — civil or criminal — is excessive"). A proper

assessment of whether a specific forfeiture contravenes the

Excessive Fines Clause typically requires an analysis of several factors. See Jalaram, 599 F.3d at 355-56. This appeal,

however, turns on only one of those factors: "the amount of

the forfeiture and its relationship to the authorized penalty."

Id. at 355. As the government maintains, a legal error was

made when the court predicated its proportionality analysis on

an incorrect understanding that the authorized penalty was the

Guidelines advisory fine of $60,000. Under the facts of this

aggravated case, the correct authorized penalty is the statutory

maximum fine of $500,000. As such, we are constrained to

agree with the government that the magistrate judge’s proportionality analysis was erroneously conducted. We therefore

vacate the Order and remand for further proceedings.

III.

Pursuant to the foregoing, we reject Afework’s crossappeal and affirm the Judgment of December 8, 2009. On the

other hand, we vacate the Order of January 15, 2010, and

12 UNITED STATES v. $79,650.00 SEIZED FROM BANK
remand for such other and further proceedings as may be

appropriate.

No. 10-1291 VACATED AND REMANDED

No. 10-1294 AFFIRMED

UNITED STATES v. $79,650.00 SEIZED FROM BANK 13