                                                                [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS
                                                                       FILED
                       FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                                    APR 4, 2011
                           Nos. 10-12785, 10-13249                  JOHN LEY
                           Non-Argument Calendar                      CLERK
                         ________________________

                 D.C. Docket No. 6:09-cr-00045-MSS-KRS-1

UNITED STATES OF AMERICA,

                                                     llllllllllllllll lPlaintiff-Appellee,


                                     versus


LUCIO RAMIREZ,

                                              l llllllllllllllllllllDefendant-Appellant.

                         ________________________

                 Appeals from the United States District Court
                      for the Middle District of Florida
                        ________________________

                                (April 4, 2011)

Before BARKETT, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

     Lucio Ramirez appeals his convictions for structuring financial transactions
to evade reporting requirements. 31 U.S.C. § 5324(a)(3), (d). Ramirez argues that

the district court abused its discretion in its answer to a question submitted by the

jury. The United States cross-appeals and argues that the district court erred in

failing to order Ramirez to forfeit the entire amount “involved in” his structuring

crime, 31 U.S.C. § 5317(c)(1)(A). We reject the arguments of both Ramirez and

the United States, and we affirm Ramirez’s convictions and the order of forfeiture.

      Ramirez argues that an answer of the district court to a question submitted

by the jury was “confus[ing],” but we disagree. During its deliberations, the jury

sent the district court a note that asked whether “structuring mean[t] that

[Ramirez] had to know what a [Currency Transaction Report] form was.” The

district court responded by identifying the statute that Ramirez was accused of

violating, referencing the specific reporting requirement, and naming the form that

banks are obligated to file with the government. See United States v. Elso, 422

F.3d 1305, 1311 (11th Cir. 2005). The district court stated that “Section

5324(a)(3) makes it a federal crime . . . to knowingly evade a currency transaction

reporting requirement”; “Section 5313(a) . . . require[s] domestic financial

institutions and banks . . . to file reports with the government called Currency

Transaction Reports, Form 4789, disclosing” all financial transactions “involving

more than $10,000 in cash or currency”; and Ramirez had to have “knowledge of

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the currency transaction reporting requirements as set forth in . . . Section

5313(a).” The district court did not abuse its discretion in answering the question

of the jury.

      The United States argues in its cross-appeal that the district court selected

arbitrarily an amount for Ramirez to forfeit and ignored the requirement that he

forfeit the amount “involved in” his crime, 31 U.S.C. § 5317(c)(1)(A), but we

disagree. The district court considered the amount “involved in” Ramirez’s

structuring crime and determined that a forfeiture of the entire $967,100 would

violate the Excessive Fines Clause of the Eighth Amendment. Although the

district court stated that it had “not ma[de] an Eighth Amendment analysis”

because “the [Eighth] Amendment is not drawn on the case until and unless the

Court imposes a fine that violates the [Eighth] Amendment,” the district court

explained that the Eighth Amendment had “informed” its decision “with respect to

what is proper and what is improper.” That this constitutional concern guided the

decision of the district court is apparent from its comments during the forfeiture

hearing and at sentencing. At the conclusion of the forfeiture hearing, the district

court stated that “really the only question” remaining was whether “the

forfeiture/judgment [would be] unconstitutional,” and the district court

commenced the sentencing hearing by stating that it had rejected the “demand for

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forfeiture [of $967,100 that] the [United States] s[ought]” based on how “the

constitutional question inform[ed] the Court’s decision.”

      The district court correctly considered whether the amount of forfeiture

sought by the United States would constitute an excessive penalty. The Supreme

Court held in United States v. Bajakajian that a “forfeiture . . . constitutes

punishment and is . . . a ‘fine’ within the meaning of the Excessive Fines Clause”

and should be examined to determine “whether it is excessive.” 524 U.S. 321,

334, 118 S. Ct. 2028, 2036 (1998). In Bajakajian, although the forfeiture statute

mandated that the defendant forfeit “any property . . . involved in” his crime, 18

U.S.C. § 982(a)(1), the Court held that a forfeiture of the entire amount that the

defendant had failed to declare he intended to transport outside the United States

would have been “grossly disproportional to the gravity of his offense.”

Bajakajian, 524 U.S. at 339–40, 118 S. Ct. at 2039. The Court reasoned that a

forfeiture of $357,144 was unconstitutionally excessive because Bajakajian’s only

crime was failing to report the currency, the currency was not connected to any

illegal activity, Bajakajian faced a maximum sentence of six months and a $5,000

fine under the Sentencing Guidelines, and his crime affected only the ability of the

government to know that the currency had left the United States. Id. at 337–39,

118 S. Ct. at 2038–39.

                                           4
      The district court did not err when it determined that a forfeiture of the

entire $967,100 involved in Ramirez’s structuring crimes would be excessive and

unconstitutional. Like the defendant in Bajakajian, Ramirez committed a

reporting offense and faced a mandatory forfeiture of “all property . . . involved in

[his] offense,” 31 U.S.C. § 5317(c)(1)(A), but a forfeiture of that magnitude would

be grossly disproportional to Ramirez’s crime. Ramirez structured his financial

transactions to evade reporting requirements, but he did not attempt to conceal his

wrongdoing and his money was not connected to any illegal activity. In addition,

Ramirez faced a fine under the Sentencing Guidelines about 12 times less than the

amount demanded by the forfeiture statute and his crime affected only the Internal

Revenue Service by depriving it of reports from banks about the amounts of

Ramirez’s deposits. The forfeiture of the entire $967,100 would have violated the

Excessive Fines Clause.

      We AFFIRM Ramirez’s convictions and the order of forfeiture.




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