                  United States Court of Appeals,

                         Eleventh Circuit.

                            No. 95-4181.

         UNITED STATES of America, Plaintiff-Appellant,

                                 v.

                 James W. DEAN, Defendant-Appellee.

                           June 27, 1996.

Appeal from the United States District Court for the Southern
District of Florida. (No. 93-8106-CR-NCR), Norman C. Roettger, Jr.,
Chief Judge.

                   ON SUA SPONTE RECONSIDERATION

Before KRAVITCH, ANDERSON and BARKETT Circuit Judges.

     KRAVITCH, Circuit Judge:

      In light of the Supreme Court's recent decision in United

States v. Ursery, --- U.S. ----, --- S.Ct. ----, --- L.Ed.2d ----

(1996), 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, 509 U.S. 602, 621-23, 113
     S.Ct. 2801, 2812, 125 L.Ed.2d 488 (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 622 n.
     14, 113 S.Ct. 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, 509 U.S. at 622 n. 14, 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.

United States v. Ursery, --- U.S. ----, --- S.Ct. ----, ---
L.Ed.2d ---- (1996), (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, 509 U.S. at 618, 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, 509 U.S. at 619-21, 113 S.Ct. at
2811; United States v. One Assortment of 89 Firearms, 465
U.S. 354, 104 S.Ct. 1099, 79 L.Ed.2d 361 (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 United States v. $69,292.00 in U.S. Currency, 62 F.3d
    1161, 1167-68 (9th Cir.1995). 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, 509 U.S. at 622
    n. 14, 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; United States v. U.S.
    Currency in the Amount of $145,139.00, 18 F.3d 73, 78-80 (2d
    Cir.) (Kearse, J., dissenting), cert. denied, --- U.S. ----,
    115 S.Ct. 72, 130 L.Ed.2d 27 (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, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972),
     where the Supreme Court upheld the forfeiture of goods
     involved in customs violations as a "reasonable form of
     liquidated damages." Id. at 237, 93 S.Ct. at 493. 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.
