better authority, however, this Court elects to follow Busher and view it as endorsing a test that considers both proportionality and nexus.
A fine as high as $ 250,000 can be imposed for a single failure to report. 31 U.S.C. § 5322(a). No reported case has ever struck down such a fine on Excessive Fines Clause grounds. Cf. United States v. O'Banion, 943 F.2d 1422, 1426, 1432-33 (5th Cir. 1991) (rejecting an Eighth Amendment challenge to a $ 20,000 fine, four years' probation, and 120 days of home confinement for failure to report). The United States Sentencing Guidelines assign a base offense level of 11 to Mr. Quinones-Ruiz's failure to report, permitting a fine between $ 2,000 and $ 20,000, in addition to a prison sentence. See U.S.S.G. §§ 2S1.3(a), 2F1.1(b)(1)(F), 5E1.2(c)(3). The harm which the failure to report statute attacks, the cash-based underground economy which avoids taxes and facilitates money laundering, is serious and is seen as justifying these harsh penalties. This leads to the conclusion that the $ 40,420 that Mr. Quinones-Ruiz forfeited was not out of proportion to the gravity of the failure to report.
It might be argued here that a comparison between the fines authorized by 31 U.S.C. § 5322 (a) or the Sentencing Guidelines and Mr. Quinones-Ruiz's $ 40,420 forfeiture is inappropriate, because the fines are only imposed after a criminal trial or guilty plea, whereas forfeiture can be imposed on the basis of probable cause. In United States v. 6625 Zumirez Drive, 845 F. Supp. 725, 732-33 (C.D. Cal. 1994), the court held that, in the Excessive Fines Clause context, the seriousness of an offense must be discounted if the government is merely seeking to forfeit based on probable cause and the claimant has not been convicted of the offense.
This discounting rule makes some sense, given that there is a lower probability that the offense really took place if its occurrence was established under a weaker burden of proof. However, the Court elects not to adopt the discounting rule, for two reasons. First, it is not clear how a court would carry out the discounting process in practice. Second, in many probable cause forfeitures, the government actually has strong evidence of guilt. Adoption of the discounting rule would force the government to put on that evidence in order to insulate the forfeiture from Excessive Fines Clause attack. In effect, the discounting rule would eliminate the Congressionally mandated probable cause forfeiture scheme.
3) Nexus Between Property and Crime
The Court finds here that there is a medium nexus between the property and the crime. The essence of the crime here was lying to the government. The money was not an instrumentality of the crime, in the sense that Mr. Quinones-Ruiz did not keep $ 40,420 in cash in order to lie about it.
Nor was the property contraband, in the sense that there is nothing intrinsically wrong with having large amounts of cash on hand. The money, however, was the subject matter of the lie. Because of this, the Court finds that the nexus requirement of the Excessive Fines Clause is met.
In summary, the Court finds that the forfeiture at issue here did not violate Mr. Quinones-Ruiz's constitutional rights. For this reason, summary judgment is GRANTED in favor of the United States.
IT IS SO ORDERED.
Dated: Jan. 6, 1995
IRMA E. GONZALEZ
United States District Judge