                                                        [PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT



                              No. 95-4181

                     D.C. Docket No. 93-8106




UNITED STATES OF AMERICA,

                                 Plaintiff-Appellant,

versus


JAMES W. DEAN,

                                 Defendant-Appellee.




          Appeal from the United States District Court
              for the Southern District of Florida


                  ON SUA SPONTE RECONSIDERATION
                            (June 27, 1996)




Before KRAVITCH, ANDERSON and BARKETT Circuit Judges.
KRAVITCH, Circuit Judge:

     In light of the Supreme Court's recent decision in United
States v. Ursery,   __ S. Ct. __, 95-345 & 95-346, the court

orders that the opinion filed April 24, 1996, 80 F.3d 1535, be

modified as follows:

     1) Footnote one is deleted in its entirety and replaced with

the following:

         Because the civil forfeiture provision in this
    case did not serve solely a remedial purpose, the
    forfeiture constituted punishment for purposes of the
    Excessive Fines Clause. Austin v. United States, 113
    S. Ct. 2801, 2812 (1993).
         In determining whether a civil forfeiture
    constitutes punishment for purposes of analysis under
    the Excessive Fines Clause, we look to the statute as a
    whole. See Id. at 2812 n.14 (holding that the
    forfeiture of conveyances and real property pursuant to
    §§ 881(a)(4) and (a)(7) constituted punishment because
    under the statute the amount forfeited "can vary so
    dramatically that any relationship between the
    Government's actual costs and the amount of the
    sanction is merely coincidental"). Where the value of
    forfeited property bears no relationship to the
    government's costs, an inquiry into whether the
    forfeiture is remedial is not necessary; it is almost
    certain that a portion of the forfeited property will
    constitute punishment. For this reason, the Austin
    Court saw no need to look at the particular forfeiture
    involved to determine whether it was remedial. Austin,
    113 S. Ct. at 2812 n.14.
         Furthermore, as the Supreme Court has recently
    observed:
         It is unnecessary in a case under the
         Excessive Fines Clause to inquire at a
         preliminary stage whether the civil sanction
         imposed in that particular case is totally
         inconsistent with any remedial goal. Because
         the second stage of inquiry under the
         Excessive Fines Clause asks whether the
         particular sanction in question is so large
         as to be "excessive," a preliminary stage
         inquiry that focused on the
         disproportionality of a particular sanction
         would be duplicative of the excessiveness
         analysis that would follow.
                                 2
United States v. Ursery, __ S. Ct. __, (citation
omitted).
     In interpreting 31 U.S.C. § 5317, we assume that
"forfeiture generally and statutory in rem forfeiture
in particular historically have been understood, at
least in part, as punishment." Austin, 113 S. Ct. at
2810. Therefore, we consider if there is anything in
the "[statutory] provisions or their legislative
history to contradict the historical understanding of
forfeiture as punishment." Id. Under § 5317, the
amount forfeitable is determined by the amount of money
a person attempts to take from the country. 31 U.S.C.
§ 5317(c), in relevant part, provides:
     If a report under section 5316 with respect
     to any monetary instrument is not filed (or
     if filed, contains a material omission or
     misstatement of fact), the instrument and any
     interest in property, including a deposit in
     a financial institution, traceable to such
     instrument may be seized and forfeited to the
     United States government.
     Because the value of the funds forfeited under the
statute is completely unrelated to remedial goals,
except by mere coincidence, there is a strong
presumption that the forfeiture is, in part, punitive.
This presumption is overcome only where there is a
direct correlation between the value of the items
seized and the damages caused by the defendant, for
instance, where the items seized are contraband. See
Austin, 113 S. Ct. at 2811; United States v. One
Assortment of 89 Firearms, 104 S. Ct. 1099 (1984). The
harm addressed by § 5317, however, is depriving the
government of the information it seeks, and the amount
of the forfeiture in any particular case is only
incidentally related to this harm. See $69,292.00, 62
F.3d 1167-68. The money Dean was transporting belonged
to him, and it is not a crime to transport one's own
money out of the United States. Although § 5317 in
part may serve the remedial goal of defraying some of
the costs the government has spent in investigation,
this is not sufficient to make it purely remedial.
Forfeiture under § 5317 is not calculated to reimburse
the government for the costs of investigating and
prosecuting Dean. Again, this is because the amount
forfeited is independent of any costs to the government
and is based only on the contingent fact of how much
currency is being transported. Austin, 113 S. Ct. at
2812 n.14.
     Congress's intent to punish through § 5317 is
further manifested by the fact that forfeiture occurs
only as the result of failing to report the funds. 31
U.S.C. §§ 5316, 5317; see $69,292.00, 62 F.3d at 1164;

                           3
    U.S Currency in the Amount of $145,139.00, 18 F.3d 73,
    78-80 (2d Cir.) (Kearse, J., dissenting), cert. denied,
    115 S. Ct. 72 (1994). "[A] forfeiture under § 5317
    primarily visits retribution on the transporter of the
    funds for not having supplied the desired information,
    and acts as a potential deterrent." 145,139.00, 18 F.3d
    at 80 (Kearse, J., dissenting) (discussing the most
    common forms of civil remedies and explaining why §
    5317 is not a remedial provision).
         Finally, we reject the government's argument that
    this case is controlled by One Lot Emerald Cut Stones
    v. United States, 409 U.S. 232 (1972), where the
    Supreme Court upheld the forfeiture of goods involved
    in customs violations as a "reasonable form of
    liquidated damages." Id. at 237. We agree with the
    Ninth Circuit that there is a distinction to be drawn
    after Austin between failure to report cases and
    customs violations cases. United States v. $69,292 in
    U.S. Currency, 62 F.3d at 1167. The crime in this case
    did not involve the smuggling of property out of the
    United States; rather, the crime was the failure to
    inform the government that currency in excess of
    $10,000 was being transported out of the country.
    Where a person attempts to avoid paying a duty, the
    crime committed does bear a correlation to the harm to
    society: the greater the value of the property, the
    greater the lost revenue. In contrast, because it is
    legal to take currency out of the United States, the
    harm that arises when a person deprives the government
    of information about how much is being removed from the
    country bears no relationship to the amount that person
    attempts to remove.

     2) Judge Anderson's previously-filed special concurrence is

withdrawn, and he now joins the opinion of the court as modified.




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