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In re $6

August 27, 1998

IN RE: $6,061.11


The opinion of the court was delivered by: Waller, Justice

94-CA-00521-SCT, __ So. 2d __

ONE (1) 1979 FORD 15V, VIN #E14HBEE7506; SIX THOUSAND SIXTY-ONE DOLLARS AND 11/100 ($6,061.11) IN CHECKING ACCOUNT NUMBER 305-0155-1, PEOPLES BANK OF THE DELTA, INDIANOLA, MISSISSIPPI, OR ITS CURRENT BALANCE, WHICHEVER IS MORE; AND ONE THOUSAND TWO HUNDRED ELEVEN DOLLARS AND 40/100 ($1,211.40) IN SAVINGS ACCOUNT NUMBER 9-200-32, PEOPLES BANK OF THE DELTA, INDIANOLA, MISSISSIPPI, OR ITS CURRENT BALANCE, WHICHEVER IS MORE v. STATE OF MISSISSIPPI, EX REL., MISSISSIPPI BUREAU OF NARCOTICS

DATE OF JUDGMENT: 05/02/94

TRIAL JUDGE: HON. GRAY EVANS

COURT FROM WHICH APPEALED: LEFLORE COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - OTHER

DISPOSITION AFFIRMED IN PART; REVERSED AND RENDERED IN PART - 8/27/98

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

SUMMARY

¶1. The Mississippi Bureau of Narcotics filed a Petition for Forfeiture pursuant to Miss. Code Ann. § 41-29-177 (1972, as amended), in the Circuit Court of Leflore County seeking the forfeiture of narrow items of property, of which a 1979 Ford van and two bank accounts are at issue in this appeal. *fn1 The petition alleged that the vehicle had been used to facilitate drug trafficking and that the money was traceable to drug activity.

¶2. Earnest Conrod ("Conrod"), the Appellant in this action, moved the trial court to have the forfeiture action dismissed on the grounds that it violated the Excessive Fines Clause of the Eighth Amendment of the United States Constitution and had not been timely tried. The trial court denied the Motion to Dismiss. Conrod appealed to this Court assigning the following issues.

I. DID THE FORFEITURE OF CONROD'S PROPERTY VIOLATE CONSTITUTIONAL RIGHTS?

A. Is the forfeiture at issue excessive in that it violates the Excessive Fines Clause of the Eighth Amendment?

B. Does this forfeiture violate the Double Jeopardy Clause of the Fifth Amendment?

II. DID THE TRIAL COURT ERR BY QUESTIONING THE WITNESS?

III. DID THE TRIAL COURT ERR BY ALLOWING THE STATE TO RECALL AGENT ANDERSON AS A REBUTTAL WITNESS WHEN THE RULE HAD BEEN INVOKED?

STATEMENT OF THE FACTS

¶3. On February 7, 1990, narcotics agents negotiated a drug deal with Earnest Conrod. On the night of the negotiation, Conrod was driving a 1979 Ford van. The day of the purchase, which was the next day, Conrod arrived in a Corvette accompanied by others in a Maxima. Conrod was arrested at this time and approximately $90,000 was seized. Conrod eventually pled guilty in Federal Court to conspiracy to sell.

¶4. The Mississippi Bureau of Narcotics ("Bureau") filed its Petition for Forfeiture. At the hearing on this petition, Agent Anderson, who was involved in the investigation of Conrod, testified that Conrod owned a vast amount of property and jointly held several bank accounts with other individuals at the time of his arrest. Agent Anderson testified that the payments on the real estate were made in cash money. She also testified that Conrod had been loaned money from the bank to purchase some properties.

¶5. Agent Anderson's investigation also revealed that Conrod ostensibly derived his income from a small grocery store he owned in Sunflower, Mississippi. She testified that the money confiscated from Conrod at the time of his arrest, the money he had in the bank accounts either jointly or individually, and the payments on his notes did not match up with his income. Anderson testified that Conrod stated on the night of his arrest that the grocery store was not doing all that great. Conrod claimed that he borrowed the money he had in his possession on the night of his arrest from friends. Anderson did not point to any drug sale that would have accounted for the money in Conrod's possession.

DISCUSSION OF THE LAW I. DID THE FORFEITURE OF CONROD'S PROPERTY VIOLATE CONSTITUTIONAL RIGHTS?

A. Is the forfeiture at issue excessive in that it violates the Excessive Fines Clause of the Eighth Amendment?

¶6. Conrod argues that the forfeiture of his property, a 1979 Ford van and two bank accounts, violates the Excessive Fines Clause of the Eighth Amendment and cites Austin v. United States , 509 U.S. 602 (1993) in support of his position. In Austin , the defendant, upon his guilty plea, was sentenced to prison for possession of cocaine with intent to distribute. Subsequently, the United States filed an in rem action in Federal District Court against his mobile home and auto body shop under the federal statutes which provide for the forfeiture of vehicles and real property used or intended to be used to facilitate the commission of certain drug-related crimes. Id. at 604-05. The United States Supreme Court held that forfeiture under the federal statutes was monetary punishment and thus subject to the Excessive Fines Clause. The Supreme Court ruled that these sections were punitive in nature, even though they may also serve remedial purposes, because Congress provided for an "innocent-owner defense" within the statutes in addition to requiring that forfeiture be directly tied to the commission of drug offenses. Id. at 619-20. The Supreme Court concluded that forfeiture under these federal statutes constituted payment for punishment for some offense and was, therefore, subject to the limitations of the Excessive Fines Clause. Id. at 622. The Supreme Court stopped short of indicating exactly what was excessive and remanded the case to the Court of Appeals for such a determination. Id.

¶7. The United States Supreme Court has not yet prescribed a test for determining whether a forfeiture is an excessive fine. The State argues that the Excessive Fines Clause of the Eighth Amendment does not apply to the states. Pervear v. Commonwealth , 72 U.S. 475 (1866) ; Knapp v. Schweitzer , 357 U.S. 371 (1958). The Mississippi Constitution has its own excessive fines clause, which is identical to the Excessive Fines Clause of the United States Constitution. Miss. Const. art. 3 § 28 (1890). This Court can look to the United States Supreme Court for guidance or we can develop our own application under Miss. Const. art 3 § 28. Other courts have primarily employed two tests when determining whether a forfeiture is excessive.

¶8. The Fourth Circuit, in United States v. Chandler , 36 F.3d 358 (4 th Cir. 1994), has adopted the "instrumentality test," which requires an analysis of the following three factors, ...


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