Monday, November 20, 2017

Burden of Proof on the Eighth Amendment Excessive Fines Issue (11/20/17)

I was reading again the unpublished opinion in United States v. Bussell, 2017 U.S. App. LEXIS 21189 (9th Cir. 2017), here, which I blogged earlier in Ninth Circuit Summarily Rejects Arguments Against FBAR Willful Penalty (10/27/17), here.  As I noted in the blog, the Court's bottom-line was that Bussell had "failed to carry her burden to establish that the penalty is grossly disproportional to her offense."

I want to say some more about the burden of proof issues.  The Court said earlier in the opinion:
Bussell bears the burden to prove that the fine against her violates the Constitution. See United States v. $132,245.00 in U.S. Currency, 764 F.3d 1055, 1058 (9th Cir. 2014) (explaining that the claimant has the burden of establishing that the forfeiture is grossly disproportional to the offense). Generally, "a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." United States v. Bajakajian, 524 U.S. 321, 334, 118 S. Ct. 2028, 141 L. Ed. 2d 314 (1998).
I think the Court is referring to the burden of persuasion which is a burden related to fact finding rather than legal conclusions.  Thus, I think the Court means that the person asserting a violation of the Eighth Amendment must establish the facts by a preponderance of the evidence that are necessary for a court to conclude that the Eighth Amendment applies.

I was trying to think about what this really meant in the two types of cases in which the Eighth Amendment issue might arise in the context of the FBAR willful penalty  -- the Government's FBAR suit to reduce the assessment to judgment and the refund suit by the person who did not file or filed an incomplete FBAR.  In both of those cases, the Government bears the burden of persuasion to establish that the person acted willfully in not filing or filing incompletely.  Basically, at least in the mainstream cases, the Government's threshold burden and any defense the person would require that the facts be fleshed out as to both issues.

I suppose that burden of proof could be teed up if the person asserting the Eighth Amendment admitted willfulness so that the Government did not have to prove willfulness to sustain the penalty.  That posture would leave the factual record bare except for such factual proof as the parties entered in the case as they sparred about the Eighth Amendment issue.  Then, the person might have a risk of nonpersuasion (burden of persuasion) as to any fact that would support application of the Eighth Amendment.

And, in any event, given the limited applicability of the burden of persuasion (it only applies in the rare case where the fact finder is in equipoise as to a fact), it would seem to me that making much ado about the burden is a bit of a diversion.

What concerns me is the Court's way of expressing its holding -- "Bussell has failed to carry her burden to establish that the penalty is grossly disproportional to her offense."  Read literally, that could mean either (i) that the Court was in equipoise on some the key fact or facts or (ii) that the court was able find all relevant facts and held that the Eighth Amendment just did not apply to the facts.  In either event, Bussell would not have established that the Eighth Amendment applied.  I think that the Court probably meant the latter; if that is what it meant, it did not state precisely its holding.  The more precise holding would have been something like: On the facts found, the Eighth Amendment does not apply.

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