Motion for Rehearing and/or Transfer to Supreme Court Denied December 28, 1993.
ULRICH, Presiding Judge.
Robert Meister appeals the trial court's order forfeiting $9,593.22 pursuant to section 195.140.2(2) RSMo (1986). The money was found by a law enforcement officer in close proximity to a controlled substance. Section 195.140.2(2) creates a rebuttable presumption that money will be forfeited if found in close proximity to forfeitable controlled substances, drug paraphernalia, or imitation controlled substances. Mr. Meister claims that the trial court erred in entering the order of forfeiture because the evidence presented was sufficient to rebut the presumption and prove that he earned the money selling tee shirts, patches and books at concerts. Mr. Meister also contends that the forfeiture is an excessive fine prohibited by the Eighth Amendment.
The trial court's forfeiture order is affirmed.
Robert Meister was a passenger in a van stopped for speeding on July 3, 1992. The Highway Patrol officer found marijuana in the driver's pocket. The driver and Mr. Meister informed the officer that the van belonged to Mr. Meister.
After his arrest, Mr. Meister stated to the officer that he was concerned with a large amount of money he had concealed inside the van. Mr. Meister showed the officer the locations of the money. The money was folded in one hundred dollar packets which were wrapped in one thousand dollar bundles. The total amount of money seized was $9,593.22.
The police inventory of the van revealed a "volleyball" size bag of a substance resembling marijuana; numerous books about marijuana growing, cultivating, and use; numerous patches depicting marijuana leaves; a box containing 147 small wooden pipes; several bags containing a substance labeled "herbal bliss," that included small amounts of marijuana with other substances; several plastic bags; and a "cannabis sativa (sic) hemp sample kit."
Mr. Meister testified at trial that he traveled around the country selling patches, tee shirts and books on a cash basis. Mr. Meister claimed that the currency found in the van was the proceeds of these sales and that the currency was unrelated to the marijuana also found in the van. He produced invoices showing he had purchased patches, tee shirts, and stickers. He also produced catalogs
On cross-examination Mr. Meister refused to provide tax information for the prior year or give an approximation of his gross earnings during the first six months of 1992. Mr. Meister claimed to have earned $20,000 to $25,000 during 1991. He stated that the currency in question was the proceeds of legitimate sales from the prior five to six weeks.
STANDARD OF REVIEW
The standard of review is established law. On appellate review, the trial court's judgment will be sustained unless no substantial evidence supports the trial court's decision, the court's judgment is against the weight of the evidence, or the trial court erroneously declared or applied the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). As the jurisdiction of this forfeiture matter lies within the civil court system, this court will view the evidence in the light most favorable to the verdict and give the prevailing party the benefit of all reasonable inferences. McPherson v. David, 805 S.W.2d 260, 263 (Mo.App.1991). The credibility of witnesses and the weight of their testimony are within the dominion of the trial court and are not subject to review on appeal. State v. Webster, 754 S.W.2d 12, 13 (Mo.App. 1988).
Mr. Meister contends the evidence presented at trial was sufficient to rebut the statutory presumption that the currency located within the van in close proximity to the contraband marijuana was acquired from an illegitimate source.
Section 195.140.2(2) is the applicable statute granting the state forfeiture authority. The statute states:
Section 195.140.2(2) legislatively presumes that currency is forfeitable if found in close proximity to forfeitable controlled substances, imitation controlled substances or drug paraphernalia. The statute places the burden of proof on Mr. Meister to rebut this presumption.
The trial court viewed the witnesses and weighed their testimonies. Sufficient evidence was presented to establish the statutory presumption, and the evidence presented by Mr. Meister was not so compelling that a trial court could not have decided that the presumption was not rebutted. Mr. Meister did not satisfy his burden of proof to rebut the statutory presumption, and the trial court correctly applied the statute. Mr. Meister's point one is denied.
Mr. Meister raises as point two the issue of whether the forfeiture of the money seized constitutes an excessive fine under the Eighth Amendment.
Mr. Meister claims Austin v. United States, ___ U.S. ___, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), applies to this case. The United States Supreme Court in Austin, held that forfeiture paid to a "sovereign as punishment for some offense" is subject to the
In Austin, Mr. Austin's auto body shop and mobile home were forfeited pursuant to federal forfeiture statutes. Mr. Austin had been identified to police as a drug dealer. The information indicated that he sold cocaine from his auto body shop. An undercover officer went into the auto body shop to purchase cocaine from Mr. Austin. Mr. Austin went into his nearby mobile home to get the requested cocaine, reentered his auto body shop, and sold two grams of cocaine to the officer. Mr. Austin was arrested, and subsequent searches of the mobile home and the auto body shop disclosed small quantities of cocaine, marijuana, and drug paraphernalia. After Mr. Austin's state criminal conviction, the federal government commenced forfeiture proceedings against the auto body shop and mobile home under 21 U.S.C. §§ 881(a)(4) and (a)(7).
The Supreme Court stated in Austin that even if the forfeiture proceeding was a civil matter, if the forfeiture is classified as punishment, the Eighth Amendment's Excessive Fines Clause applies. Austin, supra, ___ U.S. at ___, 113 S.Ct. at 2806. The court held that forfeiture pursuant to 21 U.S.C. §§ 881(a)(4) and (a)(7) constitutes punishment for an offense and, therefore, is subject to the limitations of the Eighth Amendment's Excessive Fines Clause. Austin, ___ U.S. at ___, 113 S.Ct. at 2812. The Court refused to establish a test for determining whether a forfeiture is constitutionally excessive. Id. Justice Scalia, in concurrence, suggests that in rem forfeitures should be analyzed differently than monetary fines or in personam forfeitures. Austin, ___ U.S. at ___, 113 S.Ct. at 2814-15 (Scalia, J. concurring). Justice Scalia cites Alexander v. United States, ___ U.S. ___, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993), as an example of an in personam forfeiture. Id., ___ U.S. at ___, 113 S.Ct. at 2815. In rem forfeitures are "confiscations of property rights based on improper use of the property, regardless of whether the owner has violated the law." Austin, ___ U.S. at ___, 113 S.Ct. at 2813. In personam forfeitures are "assessments, whether monetary or inkind, to punish the property owner's criminal conduct." Id. Regardless of the type, Justice Scalia states that if the purpose is punitive as opposed to compensatory, punishment is being imposed. Id., ___ U.S. at___, 113 S.Ct. at 2813-14.
Justice Scalia states that the question should not be "how much the confiscated property is worth, but whether the confiscated property has a close enough relationship to the offense." Id., ___ U.S. at ___, 113 S.Ct. at 2815. "The relevant inquiry for an excessive forfeiture under § 881 is the relationship of the property to the offense: Was it close enough to render the property, under traditional standards, `guilty' and hence forfeitable?" Id.
The Fourth Circuit, in a post-Austin decision, made this observation:
United States v. Borromeo, 1 F.3d 219, 221 (4th Cir.1993).
The subsection preceding Missouri's section 195.140.2(2), relates to proceeds of controlled
Currency and coin are very difficult to trace. Subsection 2 creates the presumption that money found in close proximity to a controlled substance was acquired as enunciated in section 195.140.2(1) and is forfeited. The burden to prove that the currency and coin found in close proximity to a controlled substance were not received in exchange for, nor were intended to be used to obtain, controlled substance is shifted to the person claiming the money. Section 195.140.2(2) RSMo (1986).
If the presumption is not rebutted, the analysis for the application of the Excessive Fines Clause is the same as for property or assets obtained as a result of the exchange of controlled substances or paraphernalia. The Fourth Circuit's observations in Borromeo appear sound. A forfeiture, examined under the Excessive Fines Clause, is not excessive, irrespective of proportionality, if the money or property forfeited is fruit of the illegal exchange. Under Justice Scalia's analysis, the forfeiture would not be excessive if the property itself is "guilty." See Austin, supra, ___ U.S. at ___, 113 S.Ct. at 2815 (Scalia, J. concurring).
Assuming arguendo that the Eighth Amendment's Excessive Fines Clause applies to the states, money found in close proximity to a controlled substance, is reasonably presumed to be the proceeds of the sale of contraband drugs and pursuant to section 195.140.2(2), is forfeitable. Forfeiture of the proceeds of the sale of contraband drugs is not a fine. Thus, such forfeiture is not punitive and the Eighth Amendment is inapplicable. The rebuttable presumption of § 195.140.2(2) that the money was received in exchange of a controlled substance is constitutional. State ex rel. Cook v. Saynes, 713 S.W.2d 258, 259 (Mo. banc 1986). "The fact that money is found in close proximity to forfeitable controlled substances furnishes a logical basis for the inference of forfeitability...." Id. at 262. The unrebutted presumption places the money on the same level as the "guilty" property listed under section 195.140.2(1).
A distinction exists between the direct proceeds of illegal activity, property used to facilitate illegal conduct, and property acquired only in part with illegal proceeds. If the subject property of a statutory forfeiture proceeding is proved to be the proceeds of illegal activity, even by permissible statutory presumption, the state, by statute, has a superior interest in the proceeds than the
When the subject matter of a forfeiture proceeding is more than the proceeds of the illegal activity, assuming arguendo that the Excessive Fines Clause applies to the states, an examination of whether the forfeiture is punitive and then whether the forfeiture is excessive is required by the Eighth Amendment. However, when the property to be forfeited is found to be the proceeds of illegal activity, either by unrebutted statutory presumption or by a trier of fact, the forfeiture is not punitive because one who commits a crime has no greater interest in the fruits of the crime than the state, and the Eighth Amendment is not applicable. Mr. Meister did not meet his burden of proof to rebut the presumption in section 195.140.2(2), and therefore, the money is presumed to be ill-gotten proceeds and as such its forfeiture is not an excessive fine.
Mr. Meister's point two is denied. The judgment is affirmed.