the Court concluded that civil in rem forfeitures are historically recognized as being, at least in part, punitive, see Austin, 113 S. Ct. at 2810, and that such forfeitures under 21 U.S.C. §§ 881 (a)(4) and (a)(7) are punitive because of their deterrent purpose, see Austin, 113 S. Ct. at 2811, the court also expressly noted its prior recognition that the forfeiture of contraband may be characterized as remedial because it removes dangerous or illegal items from society, see Austin, 113 S. Ct. at 2811.
Under the reasoning of Austin, this court considers the dispositive question here to be whether the forfeiture under 21 U.S.C. § 881 (a)(6) is in any part punitive. That determination, in turn, depends upon how the money is characterized for forfeiture purposes. If it is contraband, its forfeiture is purely remedial. If, on the other hand, it is merely used to facilitate a drug transaction, its forfeiture will be at least partly punitive.
Contraband is generally defined as "an item the possession of which is itself a crime." United States v. Mahone, 537 F.2d 922, 926 (7th Cir. 1976); see also Harris v. United States, 331 U.S. 145, 154-55, 67 S. Ct. 1098, 1103, 91 L. Ed. 1399 (1947) (property in illegal possession of defendant constitutes contraband). Property which is unlawful to produce or possess is contraband. Black's Law Dictionary 291 (5th Ed. 1979).
In the context of the illicit drug trade, money may or may not be contraband depending on how it is situated. For example, if money constitutes the proceeds of a drug transaction, it is illegal to possess and thus is rightly considered contraband. On the other hand, if money is merely used to facilitate a drug purchase, it is not contraband, and its forfeiture is at least partly punitive.
In the present case, the government seeks to forfeit money seized from Apostal's bedroom and wallet. The verified complaint alleges that $ 19,500 was found in a brown wallet in a metal box and $ 45,140 was located in a small wooden box. Of that amount, only $ 140 was allegedly identifiable as the proceeds of a drug transaction. Additionally, $ 456 was found in a black wallet, $ 140 of which was allegedly proceeds of a cannabis sale. The verified complaint further alleges that all of the currency was "used or intended to be used in exchange for controlled substances, or was proceeds traceable to an exchange for controlled substances, or was intended to be used to facilitate the commission of a felony narcotics offense." While the complaint is not overly precise, it does allege, as two alternatives, that the money was used in exchange for controlled substances (which could reasonably mean it was received from the sale thereof) or was proceeds traceable to a controlled substance exchange.
In terms of the motion to dismiss, the verified complaint does not implicate the Excessive Fines Clause to the extent it seeks to forfeit money that, as proceeds of a drug sale, constitutes contraband. On the other hand, the allegations regarding the money as intended to be used to purchase drugs or to facilitate such purchase constitute a punitive forfeiture and thus do implicate the Excessive Fines Clause.
Apostal has not, however, in his motion to dismiss, identified how this latter forfeiture is excessive. Rather, he has merely pointed to the difference between the amount sought to be forfeited and the amount actually used to effectuate the purchase of cannabis which led to his arrest. While the Supreme Court in Austin declined to identify what factors should be examined in determining whether a particular forfeiture is excessive, the mere ratio of the value of the subject property to the value of the actual transaction is, by itself, insufficient.
Because the government's verified complaint, at least in part, seeks to forfeit money in a purely remedial fashion, and because Apostal has failed to identify how any punitive forfeiture would be excessive under the Eighth Amendment, this court will deny Apostal's motion to dismiss. In doing so, the court notes that should the government, in proving its claim for forfeiture, attempt to proceed to justify its forfeiture on the basis of the money's intended use to facilitate a drug transaction, Apostal may at that time attempt to establish the excessiveness of such a forfeiture.
For the foregoing reasons, claimant, Nicholas Apostal's, motion to dismiss the verified complaint for forfeiture is denied.
PHILIP G. REINHARD, JUDGE
UNITED STATES DISTRICT COURT
DATED: December 28, 1993