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October 1, 1998



Before Wagner, Chief Judge, and Steadman and Farrell, Associate Judges.

The opinion of the court was delivered by: Steadman, Associate Judge:

Claimant Braulio Esparza solicited a supposed prostitute (actually an undercover police officer) in violation of D.C.Code § 22-2701(a) (1996). As a first offender, he was subject to a maximum statutory penalty of $300 but was fined $150. The appeal before us is from an in rem civil forfeiture action brought under the Safe Streets Forfeiture Act of 1992, D.C.Code § 22-2723 (1996), against the truck from which Esparza accomplished the solicitation.

The primary question presented is whether the forfeiture of the truck, valued at $15,500, violates the Excessive Fines Clause of the Eighth Amendment to the United States Constitution. *fn1 We hold that the legal test authoritatively established in June of this year by the Supreme Court in United States v. Bajakajian, ___ U.S. ___, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998), *fn1 compels the conclusion that the attempted forfeiture here would violate the Excessive Fines Clause.


The facts necessary to the disposition of this appeal are undisputed by the parties. On June 23, 1995, Esparza drove his 1995 Toyota pick-up truck to the 1300 block of L Street, Northwest, and solicited a woman he thought to be a prostitute to engage in a sexual act. The woman, an undercover police officer, quoted, and Esparza accepted, a price for the consummation of the act, after which Esparza was placed under arrest. On August 30, 1995, Esparza pled guilty to sexual solicitation, a violation of D.C.Code § 22-2701(a), and, as a first offender, received a fine of $150, which he paid in full. *fn2 [995 TOYOTA PICK-UP vDISTRICT OF COL, 718 A2d Page 560]

On October 11, 1995, the District commenced an in rem forfeiture action against the truck under D.C.Code § 22-2723(a). *fn3 Esparza promptly moved for summary judgment, arguing the forfeiture would violate the Double Jeopardy, Due Process, *fn3 and Excessive Fines Clauses of the Constitution. The trial court denied the motion, citing United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996), and entered a decree of condemnation from which Esparza now appeals. We hold, in light of the Supreme Court's subsequent decision in Bajakajian, that the forfeiture of Esparza's truck, under the circumstances presented in this case, is an unconstitutionally excessive fine.


The Eighth Amendment provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. CONST. amend. VIII. The Supreme Court has addressed the excessive fines provision on only a few occasions, and, in fact, applied it to strike down a fine for the first time very recently in Bajakajian. Emerging from this limited jurisprudence, however, are two fundamental principles which shape the analysis of the present case.

First, the limitation on excessive fines is meant to curb the "government's power to extract payments, whether in cash or in kind, 'as punishment for some offense.' " Austin v. United States, 509 U.S. 602, 609-10, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (quoting Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 265, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989)). Therefore, whether or not a government-initiated forfeiture of property is a "fine" for purposes of the Excessive Fines Clause depends not on its outward characterization as either civil or criminal, but rather on whether it is a form of punishment. Id. at 610, 113 S.Ct. 2801; see also Bajakajian, supra, ___ U.S. at ___, 118 S.Ct. at 2033 ("Forfeitures — payments in kind — are . . . 'fines' if they constitute punishment for an offense."). If there is an element of punishment in the forfeiture, it comes within the purview of the Excessive Fines Clause notwithstanding the fact that it may also serve remedial purposes. *fn4 See Bajakajian, supra, ___ U.S. at [995 TOYOTA PICK-UP vDISTRICT OF COL, 718 A2d Page 561]

___ n. 4, ___ n. 6, 118 S.Ct. at 2034 n. 4, 2035 n. 6; Austin, supra, 509 U.S. at 621-22, 113 S.Ct. 2801; United States v. Halper, 490 U.S. 435, 448, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989). As the Supreme Court observed in Halper, "a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term." 490 U.S. at 448, 109 S.Ct. 1892.

The second controlling principle relates to the severity of a fine allowed by the Eighth Amendment. Once it is established that a forfeiture is a fine within the meaning of the Eighth Amendment, a gross disproportionality test must be applied to determine constitutional excessiveness, that is, "a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." Bajakajian, supra, ___ U.S. at ___, 118 S.Ct. at 2036.

We turn now to an application of these principles to the forfeiture ...

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