| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kenneth John Jouppi v. State of Alaska, State of Alaska v. Kenneth John Jouppi (4/18/2025) sp-7762
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
KENNETH J. JOUPPI, )
) Supreme Court Nos. S-18598/18637
Petitioner and )
Cross-Respondent, ) Court of Appeals No. A-13147
)
v. ) District Court No. 4FA- 12-03228 CR
)
STATE OF ALASKA, ) O P I N I O N
)
Respondent and ) No. 7762 - April 18, 2025
Cross-Petitioner. )
)
Petition for Hearing from the Court of Appeals of the State
of Alaska, on appeal from the District Court of the State of
Alaska, Fourth Judicial District, Fairbanks, Patrick S.
Hammers, Judge.
Appearances: Robert John, Law Office of Robert John,
Fairbanks, for Petitioner and Cross-Respondent. Donald
Soderstrom, Assistant Attorney General, Anchorage, and
Treg Taylor, Attorney General, Juneau, for Respondent and
Cross-Petitioner. Renee McFarland, Assistant Public
Defender, and Samantha Cherot, Public Defender,
Anchorage, for Amicus Curiae Public Defender Agency.
----------------------- Page 2-----------------------
Before: Maassen, Chief Justice, Carney, Borghesan, and
*
Pate, Justices, and Winfree, Senior Justice. [Henderson,
Justice, not participating.]
PATE, Justice.
INTRODUCTION
The owner of an airplane was convicted of transporting beer into a village
that prohibited the importation of alcoholic beverages. Upon conviction, Alaska law
mandated forfeiture of the airplane because it had been used to commit the offense. The
owner argues that forfeiture of his airplane violates the Excessive Fines Clause of the
U.S. Constitution. We disagree.
This case comes to us by way of a petition and cross-petition to review a
decision by the court of appeals. The court of appeals had vacated the trial court's
ruling that the forfeiture was unconstitutionally excessive, remanding for further fact
finding because it concluded the trial court failed to correctly apply the test for
excessive fines articulated by the United States Supreme Court in United States v.
1
Bajakajian . We conclude that the court of appeals analyzed many of the issues in this
case correctly, but we disagree with its conclusion that further fact-finding by the trial
court is necessary.
We hold, as a matter of law, that the owner of the airplane failed to
establish that forfeiture would be unconstitutionally excessive. Forfeiture of the
airplane constituted a fine within the meaning of the Excessive Fines Clause, and
application of the factors identified in Bajakajian demonstrates that the forfeiture is not
grossly disproportional to the gravity of the harm caused by the offense. The owner
failed to preserve his other arguments, and we do not address their merits. Because we
* Sitting by assignment made under article IV, section 11 of the Alaska
Constitution and Alaska Administrative Rule 23(a).
1 524 U.S. 321, 324, 337-40 (1998).
-2- 7762
----------------------- Page 3-----------------------
hold that full forfeiture is permissible under these circumstances, we do not decide
whether the relevant forfeiture statute allows partial forfeiture. We remand to the court
of appeals for further proceedings consistent with this opinion.
FACTS AND PROCEEDINGS
Kenneth Jouppi owned an airplane that he piloted on behalf of his air taxi
company, KenAir LLC. After a jury trial, Jouppi and KenAir were convicted of
transporting beer by airplane from Fairbanks into the village of Beaver, a "local option
community" that has prohibited the importation, sale, and possession of alcoholic
2
beverages (colloquially, a "dry village"). Following Jouppi's conviction and
sentencing, the State appealed the trial court's decision declining to order the forfeiture
3
of his airplane on statutory grounds, in what we refer to as Jouppi I . After a remand
the trial court again declined to order forfeiture of the airplane, this time on
constitutional grounds. The State appealed a second time in what we refer to as Jouppi
4
II .
2 See AS 04.11.491(b) ("If a majority of the persons voting on the question
vote to approve the option, an established village shall exercise a local option to
prohibit . . . (3) the sale and importation of alcoholic beverages; or (4) the sale,
importation, and possession of alcoholic beverages."); AS 04.11.499(a) ("If a majority
of the voters vote to prohibit the importation of alcoholic beverages . . . , a person,
beginning on the first day of the month following certification of the results of the
election, may not knowingly send, transport, or bring an alcoholic beverage into the . . .
established village, unless the alcoholic beverage is sacramental wine [and several other
conditions are satisfied]."); AS 04.11.499(c)(3) ("[In AS 04.11.499,] 'transport' means
to ship by any method, and includes delivering or transferring or attempting or soliciting
to deliver or transfer an alcoholic beverage to be shipped to, delivered to, or left or held
for pickup by any person."); AS 04.16.200(e) (noting that first or second violation of
AS 04.11.499(a) is "a class A misdemeanor if the quantity of alcoholic beverages is less
than 10 and one-half liters of distilled spirits or 24 liters of wine, or either a half-keg of
malt beverages or 12 gallons or more of malt beverages in individual containers").
3 State v. Jouppi (Jouppi I), 397 P.3d 1026 (Alaska App. 2017).
4 State v. Jouppi (Jouppi II), 519 P.3d 653 (Alaska App. 2022).
-3- 7762
----------------------- Page 4-----------------------
A. Jouppi I Proceedings
Evidence at trial showed that in April 2012, Jouppi loaded the equivalent
of three cases of beer into his airplane for a customer who had chartered his company's
services to fly from Fairbanks to Beaver. The jury heard conflicting evidence about
how the beer was packed and how much of it would have been visible to Jouppi. Some
testimony and exhibits indicated that at least one six-pack of beer was packed only in a
grocery bag and would have been in plain view to Jouppi as he was loading the airplane.
Jouppi and his passenger both testified that the airplane's cargo, including the beer, was
packed in closed boxes except for four loose twelve-packs of soda. And Jouppi
professed that he never opened the boxes. But a state trooper testified that he observed
Jouppi opening and closing boxes while loading the airplane and opined that Jouppi had
to be turning a blind eye to the boxes' contents because it would have been impossible
not to see that there was alcohol being loaded into the airplane.
The court instructed the jury that it should return a guilty verdict only if it
found beyond a reasonable doubt both that Jouppi or KenAir LLC "knowingly sent,
transported, or brought less than 12 gallons of malt beverage into the village of Beaver"
and that Beaver was a dry village. It also instructed that the term "transport" includes
"attempting or soliciting to deliver or transfer" and that "a party acts 'knowingly' . . .
when any failure to possess actual knowledge was due to the party's deliberate
ignorance." The form on which the jury ultimately returned its guilty verdict did not
call for any findings regarding the quantity or volume of alcoholic beverages involved
in the offense.
The court sentenced Jouppi to 180 days in jail with 177 suspended, a
$3,000 fine with $1,500 suspended, and three years of probation. It sentenced KenAir
LLC to a $10,000 fine with $8,500 suspended and three years of probation. As
conditions of probation, the court ordered Jouppi and his company not to transport
alcoholic beverages into any dry village and ordered Jouppi not to consume or possess
alcoholic beverages in any such community. The court also ordered both Jouppi and
-4- 7762
----------------------- Page 5-----------------------
his company to forfeit their interests in the airplane used in the commission of the
5
offense, stating on the record that it did not impose the forfeiture "lightly" but thought
it was "required to" impose forfeiture under the circumstances. On reconsideration, the
trial court found that the statute did not authorize the forfeiture of Jouppi's aircraft
because the State had seized the alcohol before Jouppi left Fairbanks, meaning that he
had not actually "imported" any beer into a dry village. The State appealed the trial
court's forfeiture ruling, as modified on reconsideration, and the court of appeals
reversed, holding that the statute required the court to order the forfeiture of the
6
airplane. The court of appeals reasoned that because the airplane was used to facilitate
the transportation of alcohol imported into a dry village - even though the alcohol was
7
not actually delivered - the statute mandates forfeiture.
B. Jouppi II Proceedings
On remand to the trial court, Jouppi moved for a declaration that forfeiture
8
of the airplane would be an excessive fine in violation of the United States Constitution
9
and the Alaska Constitution. The trial court held an evidentiary hearing and later
5 See AS 04.16.220(a)(3)(C) (providing that "aircraft, vehicles, or vessels
used to transport or facilitate the transportation of . . . alcoholic beverages imported into
a municipality or established village in violation of AS 04.11.499(a)" are "subject to
forfeiture").
6 Jouppi I , 397 P.3d at 1035-36.
7 Id. at 1033-36; see also AS 04.16.220(i) ("Upon conviction for a violation
of . . . 04.11.499(a) . . . the court shall . . . order the forfeiture of an aircraft [used to
transport or facilitate the transportation of alcohol imported into a dry village] to the
state . . . .").
8 See U.S. Const. amend. VIII ("Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.").
9 See Alaska Const. art. I, § 12 ("Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted. Criminal
administration shall be based upon the following: the need for protecting the public,
-5- 7762
----------------------- Page 6-----------------------
granted Jouppi's motion, agreeing that under the circumstances, the forfeiture
constituted an excessive fine.
The trial court found that Jouppi, rather than his company, owned the
airplane and that the airplane was worth $95,000. It observed that the value of the
airplane was "nine and a half times the maximum fine" of $10,000 that could have been
imposed on Jouppi.10
The trial court stated that "[t]he evidence establishe[d] that there were
approximately seventy two beers on the airplane" and found that Jouppi "was 'willfully
blind' with respect to six beers that were clearly visible inside a plastic grocery bag."
It "assume[d], without deciding, that [Jouppi's] culpability extend[ed] to all of the beer"
on the airplane and found that "[t]he gravity of Mr. Jouppi's offense consists of his
having attempted to bring approximately 1,152 ounces of beer to a local option
community." It also found that this quantity of beer "could have plausibly all been
intended for his passenger's personal consumption, or her family's personal
consumption." The court stated that Jouppi's offense was "serious" but "not nearly as
egregious as other conduct that could result in mandatory forfeiture of a plane under the
applicable statutes." For these reasons, it concluded that forfeiture of the airplane would
be an unconstitutionally excessive fine because it would be "grossly disproportionate
to the gravity of the offense."
The State appealed the trial court's decision, and the court of appeals
vacated and remanded.11 The court of appeals concluded that the trial court had not
community condemnation of the offender, the rights of victims of crimes, restitution
from the offender, and the principle of reformation.").
10 The maximum fine that could have been imposed upon conviction of a
class A misdemeanor for an individual was $10,000. Former AS 12.55.035(b)(5)
(2013). The maximum fine for a defendant organization such as KenAir LLC was
$500,000. AS 12.55.035(c)(1)(B).
11 Jouppi II , 519 P.3d 653, 656, 669 (Alaska App. 2022).
-6- 7762
----------------------- Page 7-----------------------
correctly applied the test for excessiveness articulated in the Supreme Court's decision
in United States v. Bajakajian12 when deciding whether the forfeiture of the airplane
was "grossly disproportional to the gravity of the offense."13
The court of appeals also concluded that whether Jouppi's conduct was
"related to, or comprised part of, other illegal activities" was relevant to the excessive-
fines analysis and that the trial court erred by declining to hear evidence the State had
offered on that issue.14 And the court of appeals concluded that the trial court erred by
analyzing the harm from Jouppi's offense without considering what would have
happened if troopers had not stopped him.15 It therefore directed the trial court to
conduct additional fact-finding and legal analysis on remand, including "a fuller
application of the Bajakajian factors."16 The court of appeals also directed the trial
court to consider "whether forfeiture of the airplane would deprive Jouppi of his ability
to earn a livelihood."17 Finally, the court of appeals directed that if the trial court
concluded that complete forfeiture of Jouppi's airplane would be unconstitutionally
excessive, it should "then address the State's argument that a partial forfeiture should
be ordered."18
Judge Mannheimer filed an opinion concurring in part and dissenting in
part.19 His concurrence provided an extensive historical analysis of the Excessive Fines
12 524 U.S. 321, 324 (1998).
13 Jouppi II , 519 P.3d at 659-64.
14 Id. at 661-62.
15 Id. at 662-64.
16 Id. at 664.
17 Id. at 664-65.
18 Id. at 666.
19 See id. at 669-99 (Mannheimer, J., concurring in part and dissenting in
part).
-7- 7762
----------------------- Page 8-----------------------
Clause of the Eighth Amendment as well as Alaska's statutory forfeiture provision.20
He agreed with the court of appeals' conclusion that the trial court failed to apply the
test articulated in Bajakajian, but he concluded the record showed that the fine was not
excessive as a matter of law; he therefore would have reversed the trial court and
directed it to order the forfeiture of the airplane.21
C. Petition And Cross-Petition For Hearing
Jouppi petitioned for hearing,22 arguing that the court of appeals should
have affirmed the trial court's decision on the merits and held that a criminal forfeiture
based on judicial fact-finding about the gravity of the offense would violate his right to
a trial by jury. He also argued that the court of appeals erred by directing the trial court
to consider on remand whether the forfeiture statute allows for a partial forfeiture of his
airplane if complete forfeiture would be an unconstitutionally excessive fine.23
The State filed a response and cross-petition24 for hearing in which it
argued that the court of appeals erred by remanding this case and that it should have
reversed the trial court's ruling - holding categorically that the complete forfeiture of
Jouppi's airplane is constitutional - for the reasons that Judge Mannheimer stated in
his partial concurring opinion. The State also argued that there is no right to a jury trial
on the issue of the gravity of the offense for purposes of analysis under the Excessive
Fines Clause.
20 Id.
21 See id. at 697-99.
22 See Alaska R. App. P. 302(a), 304.
23 See AS 04.16.220(i)(1) (requiring court to order forfeiture of defendant's
aircraft upon conviction for aircraft-facilitated alcohol importation offense).
24 See Alaska R. App. P. 302(a), 304.
-8- 7762
----------------------- Page 9-----------------------
We granted in part both Jouppi's petition and the State's cross-petition.
The Public Defender Agency filed a brief as amicus curiae and participated in the oral
argument along with the parties.25
STANDARD OF REVIEW
We apply our independent judgment to questions of law, including
questions of constitutional and statutory interpretation.26 "The factual findings made
by [the trial court] in conducting the excessiveness inquiry" under the Excessive Fines
Clause of the Eighth Amendment to the United States Constitution "must be accepted
unless clearly erroneous."27 But "whether a fine is constitutionally excessive calls for
the application of a constitutional standard to the facts of a particular case, and in this
context de novo review of that question is appropriate."28
DISCUSSION
The bulk of our analysis begins - and ends - with Jouppi's argument
that the forfeiture of his airplane violates the Excessive Fines Clause of the Eighth
Amendment. We hold that the forfeiture does not violate the Excessive Fines Clause
because it is not grossly disproportional to the gravity of the harm caused by Jouppi's
alcohol importation offense. Because Jouppi failed to preserve his arguments
pertaining to excessive fines under the Alaska Constitution and the right to a jury trial
under the Sixth Amendment and the Alaska Constitution, we decline to address them.
And, in light of our holding, we do not need to address the State's argument that a partial
forfeiture of Jouppi's airplane is permissible under the forfeiture statute.
25 We thank the Agency for its helpful briefing and argument in this appeal.
26 State v. Recall Dunleavy, 491 P.3d 343, 354 (Alaska 2021).
27 United States v. Bajakajian, 524 U.S. 321, 337 n.10 (1998).
28 Id .
-9- 7762
----------------------- Page 10-----------------------
A. The Forfeiture Of Jouppi's Airplane Does Not Violate The Eighth
Amendment.
The Eighth Amendment to the United States Constitution prohibits the
imposition of "excessive fines."29 This prohibition is incorporated against the states
through the Due Process Clause of the Fourteenth Amendment.30 Under the Supreme
Court's decision in Bajakajian , an excessive fines challenge requires a two-step
analysis.31 First, we must determine whether the challenged forfeiture is a "fine" within
the meaning of the Excessive Fines Clause.32 A forfeiture is a fine if it constitutes a
"punishment" for an offense rather than serving a purely remedial purpose.33 Second,
assuming that the forfeiture is a fine, we must then conduct a proportionality analysis,
using factors identified in Bajakajian to determine whether the forfeiture is
unconstitutionally excessive compared to the gravity of the offense.34
1. The forfeiture of Jouppi's airplane is a "fine" within the
meaning of the Eighth Amendment because it was imposed as
a punishment.
Under Bajakajian only forfeitures that are punitive in nature are
considered "fines" subject to a proportionality review.35 By contrast, nonpunitive
29 U.S. Const. amend. VIII ("Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.").
30 Timbs v. Indiana, 139 S. Ct. 682, 687-89 (2019).
31 524 U.S. at 327-34.
32 Id.
33 Id. at 328-32; see also Austin v. United States, 509 U.S. 602, 610 (1993)
("[A] civil sanction that cannot fairly be said solely to serve a remedial purpose, but
rather can only be explained as also serving either retributive or deterrent purposes, is
punishment, as we have come to understand the term." (quoting United States v. Halper,
490 U.S. 435, 448 (1989))).
34 524 U.S. at 334-43.
35 Id. at 328 ("Forfeitures - payments in kind - are thus 'fines' if they
constitute punishment for an offense.").
-10- 7762
----------------------- Page 11-----------------------
forfeitures - those that serve a remedial purpose - are not subject to Eighth
Amendment scrutiny.36 Nonpunitive forfeitures historically include those sought in
civil in rem proceedings against the property.37 For the reasons explained below, we
conclude that the forfeiture of Jouppi's airplane is punitive.
Civil in rem forfeitures were traditionally brought against property used
in the commission of a crime by resort to a legal fiction that the property was "guilty
and condemned as though it were conscious instead of inanimate and insentient."38 In
an in rem proceeding, the forfeiture is not part of the punishment for a criminal
offense.39 The conduct of the property owner is irrelevant; an entirely innocent owner
may be forced to forfeit the property if it were used to commit a crime.40 For example,
the government has sought forfeiture against goods illegally imported into the
country,41 vehicles used for drug trafficking,42 and stolen art.43
36 Id. at 330-31; Tyler v. Hennepin County, Minnesota , 143 S. Ct. 1369, 1381
(2023) (Gorsuch, J., concurring) (citing Austin v. United States , 509 U.S. 602, 610
(1993)).
37 Bajakajian , 524 U.S. at 330.
38 Waterloo Distilling Corp. v. United States, 282 U.S. 577, 581 (1931).
39 Id.
40 See, e.g., Origet v. United States, 125 U.S. 240, 246 (1888) ("The person
punished for the offense may be an entirely different person from the owner of the
merchandise, or any person interested in it. The forfeiture of the goods of the principal
can form no part of the personal punishment of his agent.").
41 See, e.g., United States v. An Antique Platter of Gold, 184 F.3d 131, 133-
34 (2d Cir. 1999) (involving antique gold platter imported with fraudulent customs
form).
42 See, e.g., Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 665
(1974) (involving yacht used to transport marijuana).
43 See, e.g., United States v. Portrait of Wally , 663 F. Supp. 2d 232, 250-53
(S.D.N.Y. 2009) (involving stolen painting).
-11- 7762
----------------------- Page 12-----------------------
The State's lead argument on appeal is that the forfeiture of Jouppi's
airplane is "immune" from a proportionality analysis under the Excessive Fines Clause
because the airplane is an "instrumentality" that Jouppi used to commit the crime.
Because similar property would historically have been subject to civil forfeiture in an
in rem proceeding against the property itself without regard for proportionality, the
State argues that the multi-factor proportionality analysis described in Bajakajian does
not apply here.
However, as the court of appeals correctly concluded, the forfeiture of
Jouppi's airplane is not analogous to the traditional civil in rem forfeitures that the Court
suggested were nonpunitive.44 In Bajakajian the Court identified four "hallmarks" that
distinguish nonpunitive forfeitures from punitive forfeitures. The hallmarks are
(1) whether the government has "proceeded against the [property] itself" or has "instead
sought and obtained a criminal conviction of [the] respondent personally," (2) whether
the forfeiture "serves [a] remedial purpose," (3) whether the forfeiture "is designed to
punish the offender," and (4) whether the forfeiture "can[] be imposed upon innocent
owners." 45
The forfeiture of Jouppi's airplane bears none of the hallmarks of an in
rem proceeding identified in Bajakajian . The first hallmark - whether the government
proceeded against the property in rem or against the defendant in personam - strongly
indicates that the forfeiture is punitive. While the State could have sought forfeiture
against the airplane in an in rem proceeding,46 it did not. The State's argument that the
forfeiture is immune from excessive fines scrutiny because the State could have
44 See Jouppi II, 519 P.3d 653, 659 (Alaska App. 2022).
45 United States v. Bajakajian , 524 U.S. 321, 331-32 (1998).
46 See AS 04.16.220(d)(2); see also Jouppi II, 519 P.3d at 674
(Mannheimer, J., concurring in part and dissenting in part) (highlighting relationship
between in personam and in rem forfeitures).
-12- 7762
----------------------- Page 13-----------------------
proceeded against the airplane in rem, as an instrumentality of the crime, is
indistinguishable from an argument rejected by the Court in Bajakajian .
In Bajakajian the defendant was convicted of willfully failing to report the
transfer of more than $10,000 in currency out of the United States.47 The government
argued that the Eighth Amendment permitted forfeiture of the entirety of the
defendant's $357,144 in unreported currency because it was an "instrumentality" of the
crime.48 The Court responded that it was irrelevant whether the currency was an
instrumentality of the crime because the government pursued criminal sanctions in
personam against the defendant, rather than proceeding in rem against the currency.49
Because the proceeding was in personam, the forfeiture of the currency was punitive.50
The State's argument in this case is indistinguishable: forfeiture was imposed as a
mandatory criminal sanction following Jouppi's in personam conviction.
The remaining hallmarks also indicate that the forfeiture of Jouppi's
airplane is punitive. Under the second and third hallmarks, the forfeiture does not serve
"the remedial purpose of compensating the Government for a loss," and the forfeiture
is designed "to punish the offender."51 As Judge Mannheimer explained in his
concurrence, the legislative history of the forfeiture statute demonstrates that the
legislature designed the forfeiture provision to penalize and deter the use of aircraft to
47 Bajakajian , 524 U.S. at 335.
48 Id. at 333, 335.
49 Id.
50 Id.
51 Id. at 329, 332. For example, the Court in Bajakajian found that forfeiture
of the defendant's $357,144 in unreported currency would not compensate the
government for its asserted informational loss. Id. at 329.
-13- 7762
----------------------- Page 14-----------------------
smuggle alcohol into dry villages,52 not to compensate the government for losses
sustained. Moreover, the fourth hallmark heavily indicates that the forfeiture is punitive
because, under the terms of the statute, forfeiture cannot be imposed against an innocent
property owner.53 And as the Court emphasized in Bajakajian , traditional nonpunitive
forfeitures could be imposed against an entirely innocent owner of the property.54
In sum, all four hallmarks identified by the Court in Bajakajian support
our conclusion that the forfeiture of Jouppi's airplane was a punitive sanction - and,
thus, a "fine" under the Eighth Amendment. Accordingly, we proceed to the second
step of Excessive Fines Clause analysis to determine whether the forfeiture is
unconstitutionally excessive.
2. The forfeiture of Jouppi's airplane is not an excessive fine
because it is not grossly disproportional to his offense.
The second step of analysis under the Excessive Fines Clause requires us
to determine whether the forfeiture was "excessive."55 The Court has emphasized that
52 See Jouppi II, 519 P.3d 653, 678-81 (Alaska App. 2022) (Mannheimer, J.,
concurring in part and dissenting in part) (concluding that legislative history
demonstrates that legislature "viewed the mandatory forfeiture of aircraft as a severe
but necessary penalty to punish and deter the smuggling of alcoholic beverages into
rural Alaska").
53 See AS 04.16.220(e). To successfully defend against forfeiture, the owner
of the property must show that he (1) was not a party to the violation, (2) did not have
knowledge that the property was used in violation of the law, and (3) did not have
knowledge that the person who committed the violation previously committed other
violations of the statute or had a criminal record of prior violations of the statute. Id.
54 Bajakajian , 524 U.S. at 330; see also Origet v. United States, 125 U.S.
240, 246 (1888) ("The [statute] does not say that the merchandise shall be forfeited only
on the conviction of some offender, whether the owner of the merchandise or one of the
other persons named in the [statute]. The person punished for the offense may be an
entirely different person from the owner of the merchandise, or any person interested
in it.").
55 See Bajakajian, 524 U.S. at 334-43; Jouppi II , 519 P.3d at 658.
-14- 7762
----------------------- Page 15-----------------------
the "touchstone" of the excessiveness inquiry is proportionality: "The amount of the
forfeiture must bear some relationship to the gravity of the offense that it is designed to
punish."56 If the forfeiture is "grossly disproportional" to the gravity of the offense
committed, then the forfeiture is unconstitutionally excessive.57
At the outset, in Bajakajian the Court identified two important principles
that guide our proportionality analysis. First, the legislature is primarily responsible for
determining the appropriateness of the penalties available for a particular criminal
offense.58 Second, because any judicial assessment of the gravity of an offense is
inherently imprecise, gross disproportionality (as opposed to strict proportionality) is
the standard for excessiveness.59 Thus, when the offender is within the "class of persons
for whom the statute was principally designed," courts owe some deference to
legislative assessments of the proportionality of the penalty.60
56 Bajakajian , 524 U.S. at 334.
57 Id.
58 Id. at 336.
59 Id.
60 Id. at 336, 338 (citing Solem v. Helm, 463 U.S. 277, 290 (1983)). The
State argues that courts must defer to legislative determinations on proportionality. The
State goes too far. Courts are not required to give dispositive weight to legislative
determinations. Because "no penalty is per se constitutional," courts have an
independent duty to weigh the proportionality of statutorily prescribed punishments
even as they extend "substantial deference to the broad authority that legislatures
necessarily possess in determining the types and limits of punishments for crimes."
Solem, 463 U.S. at 290; see also Grant ex rel. United States v. Zorn, 107 F.4th 782, 800
(8th Cir. 2024) (quoting Yates v. Pinellas Hematology & Oncology, P.A., 21 F.4th 1288,
1318, 1323 (11th Cir. 2021) (Newsom, J., concurring)).
-15- 7762
----------------------- Page 16-----------------------
The Court in Bajakajian derived this standard from Cruel and Unusual
Punishments Clause61 decisions, including Solem v. Helm62 and Rummel v. Estelle,63
that emphasized the importance of deference to legislative judgments about appropriate
punishments.64 Those decisions also made clear that gross disproportionality
challenges should rarely succeed and that courts can often reject such challenges
without engaging in extensive analysis.65
State and federal courts applying the Bajakajian decision have distilled
several factors that the Court identified as relevant in determining whether a forfeiture
is grossly disproportional. The factors include: (1) the nature and extent of the
defendant's crime and its relation to other criminal activity, (2) whether the defendant
falls among the class of persons for whom the statute was principally designed, (3) the
other penalties that might be imposed on the defendant under the applicable provisions
of law, and (4) the nature and extent of the harm caused by the defendant's offense.66
61 U.S. Const. amend. VIII ("Excessive bail shall not be required . . . nor
cruel and unusual punishments inflicted.").
62 463 U.S. at 290.
63 445 U.S. 263, 271 (1980).
64 See, e.g., Solem, 463 U.S. at 290 ("Reviewing courts, of course, should
grant substantial deference to the broad authority that legislatures necessarily possess
in determining the types and limits of punishments for crimes . . . ."); Rummel, 445 U.S.
at 275-76 ("[T]he lines to be drawn [when measuring proportionality] are indeed
'subjective,' and therefore properly within the province of legislatures, not courts.").
65 See Solem, 463 U.S. at 290 n.16 ("[A] reviewing court rarely will be
required to engage in extended analysis to determine that a sentence is not
constitutionally disproportionate."); Rummel, 445 U.S. at 272 ("Outside the context of
capital punishment, successful challenges to the proportionality of particular sentences
have been exceedingly rare.").
66 United States v. Bajakajian, 524 U.S. 321, 334-44 (1998); see also State
v. Grocery Mfrs. Ass'n, 502 P.3d 806, 812 (Wash. 2022); United States v. Beecroft, 825
F.3d 991, 1000-01 (9th Cir. 2016); United States v. Viloski, 814 F.3d 104, 110-11 (2d
Cir. 2016).
-16- 7762
----------------------- Page 17-----------------------
These factors are nonexhaustive, and courts are free to consider other factors relevant
to the proportionality of the forfeiture to the gravity of the offense.67 We address each
factor in turn.
First is the nature and extent of the defendant's crime and its relation to
other criminal activity.68 In Bajakajian the defendant was convicted only of failing to
report his currency.69 The Supreme Court found that this weighed against the
constitutionality of the forfeiture because it was isolated and unconnected to other
criminal activity.70 The Court also noted that Bajakajian failed to report the currency
"because of fear stemming from cultural differences" - because the defendant "[grew]
up as a member of the Armenian minority in Syria, [and] had a distrust for the
Government" - not for a nefarious purpose.71 While Jouppi was convicted of only
one instance of alcohol importation unconnected to other criminal activity, the nature
and extent of the crime is more serious than Bajakajian's. He knowingly transported a
six-pack of alcohol in plain view while acting in his professional capacity as the
67 United States v. Mackby, 339 F.3d 1013, 1016 (9th Cir. 2003)
("Bajakajian does not mandate the consideration of any rigid set of factors . . . ."); see
also Collins v. SEC, 736 F.3d 521, 527 (D.C. Cir. 2013) (observing that factors derived
from Bajakajian "hardly establish a discrete analytic process"); Reese v. Triborough
Bridge & Tunnel Auth., 91 F.4th 582, 589 (2d Cir. 2024) (noting that Bajakajian factors
are "not exhaustive" of factors courts may consider); Viloski, 814 F.3d at 110 (same);
United States v. Wagoner Cnty. Real Est., 278 F.3d 1091, 1101 (10th Cir. 2002)
(describing "catalog of factors" used to assess proportionality as "not 'necessarily
exclusive' " (quoting United States v. 829 Calle De Madero, 100 F.3d 734, 738 (10th
Cir. 1996))).
68 Bajakajian , 524 U.S. at 338-39.
69 Id.
70 Id.
71 Id. at 326 (internal quotation marks omitted).
-17- 7762
----------------------- Page 18-----------------------
operator of an air taxi company and the pilot of the airplane .72 This factor suggests that
the forfeiture of his airplane is not grossly disproportional.
Second is whether the defendant falls within the class of persons targeted
by the statute.73 The trial court's factual findings establish that Jouppi is within the
class of persons targeted by the statute. Among other facts, the trial court found that
"there were approximately seventy two beers on the plane, and that [Jouppi] was
'willfully blind' with respect to six beers that were clearly visible inside a plastic
grocery bag." The seventy-two beers were destined for a dry village. Jouppi was
clearly within the class of persons targeted by the statute: airplane owners and pilots
who knowingly facilitate the importation of alcohol for consumption in a dry village.74
Importantly, the legislative history of the forfeiture provision also
confirms that Jouppi is within the class of offenders that the Alaska legislature targeted.
The forfeiture provision was first enacted in 1980 as part of a comprehensive statutory
scheme regulating alcoholic beverages.75 The law was passed in response to a report
by the Governor's Commission on the Administration of Justice and subsequent studies
indicating that excessive and unregulated alcohol consumption, particularly in rural
areas, is a significant cause of crime in Alaska.76 The original provision authorized the
forfeiture of any aircraft, watercraft, or motor vehicle used to illegally transport alcohol
into a local option community; however, the trial court had discretion whether to impose
72 See AS 04.11.499(a).
73 See Bajakajian, 524 U.S. at 338.
74 Cf. id. (noting that defendant did not fit within class of persons targeted
by currency reporting statute - money launderers, drug traffickers, and tax evaders -
because his transportation of currency was otherwise lawful).
75 Ch. 131, SLA 1980; Jouppi II , 519 P.3d at 663.
76 GOVERNOR'S COMM 'N ON THE ADMIN. OF JUST., STANDARDS AND
GOALS FOR CRIMINAL JUSTICE 1-2 (1976); see also Harrison v. State, 687 P.2d 332,
335-36 (Alaska App. 1984) (recounting legislative history).
-18- 7762
----------------------- Page 19-----------------------
a forfeiture.77 In 2004 the forfeiture provision was amended to its current form, which
removed the trial court's discretion and mandated the forfeiture of an aircraft used to
unlawfully import alcohol into a local option community.78 The purpose of this
amendment was to "strengthen[] the forfeiture law for bootlegging offenses" to better
deter the unlawful importation of alcohol.79
The 2004 amendments to the forfeiture provision also prescribe different
treatment for aircraft than for other transportation devices used to unlawfully import
alcohol. When a motor vehicle or watercraft is used, it is subject to mandatory forfeiture
only if:
(1) the bootlegger has a conviction for a violent felony or is
on felony probation or parole, (2) the bootlegger has a prior
conviction for bootlegging, or (3) the bootlegger has been
convicted under AS 04.11.010 and the amount of alcohol
involved is twice the amount presumed to be possessed for
sale, as set out in AS 04.11.010(c).[80]
By contrast, an aircraft is always subject to mandatory forfeiture under the
statute, regardless of whether the conviction is a misdemeanor or felony or is the
defendant's first conviction.81 The legislature's differential treatment suggests that it
viewed the gravity of aircraft-facilitated importation as more severe than other methods
of unlawful importation.
As the Court in Bajakajian emphasized, "judgments about the appropriate
punishment for an offense belong in the first instance to the legislature."82 Given the
77 Former AS 04.16.220(a)(3) (1980).
78 Ch. 124, § 11, SLA 2004.
79 Letter from David Marquez, Assistant Att'y Gen., to John Harris, Co-
Chair, H. Fin. Comm. (Apr. 30, 2004).
80 Id. (citing AS 04.16.220(i)).
81 AS 04.16.220(i); Jouppi I , 397 P.3d 1026, 1034-35 (Alaska App. 2017).
82 United States v. Bajakajian, 524 U.S. 321, 336 (1998).
-19- 7762
----------------------- Page 20-----------------------
legislative determination that the forfeiture of an aircraft is proportional to the gravity
of the harm that results from unlawful alcohol importation into a dry village, coupled
with the trial court's fact-finding that places Jouppi squarely within the legislature's
targeted class of offenders, we accord some deference to the legislature's judgment on
the gravity of his offense. Absent evidence to the contrary, the forfeiture of Jouppi's
airplane is unlikely to be excessive.83 And here, Jouppi has not identified evidence to
rebut the determination that he is within the targeted class of offenders. Accordingly,
this factor strongly suggests that the forfeiture is not grossly disproportional.
Third is a consideration of other penalties that might be imposed on the
defendant in comparison to the value of the forfeiture.84 In Bajakajian the government
sought forfeiture of $357,144 - over 70 times the maximum fine of $5,000 for the
offense.85 Because the maximum fine and sentence were "but a fraction of the penalties
authorized," the Court concluded that the defendant's relative culpability was minimal
relative to the "tax evaders, drug kingpins, or money launderers" targeted by the
statute - all of whom would face the same maximum fine of $5,000.86 In this case,
the value of Jouppi's airplane is only 9.5 times the maximum fine that could have been
imposed.87 The proportionality between the value of the forfeiture and the maximum
fine demonstrates that Jouppi's culpability is in line with the legislature's assessment
83 See County of Nassau v. Canavan, 802 N.E.2d 616, 622 (N.Y. 2003)
("Given the gravity of the crime of drunk driving, it is difficult to imagine that forfeiture
of an automobile for such a crime could ever be excessive."); Collins v. SEC, 736 F.3d
521, 527 (D.C. Cir. 2013) ("A penalty that is not far out of line with similar penalties
imposed on others and that generally meets the statutory objectives seems highly
unlikely to qualify as excessive in constitutional terms.").
84 See Bajakajian, 524 U.S. at 338-39.
85 Id. at 337-38.
86 Id. at 338-39, 339 n.14.
87 The trial court valued his airplane at $95,000 and he faced a maximum
potential fine of $10,000. Former AS 12.55.035(b)(5) (2013).
-20- 7762
----------------------- Page 21-----------------------
of the culpability of other violators of the statute.88 Compared to the forfeiture in
Bajakajian , this factor suggests that the forfeiture is not grossly disproportional.89
Last is the nature and extent of the harm caused by the defendant's
offense.90 In Bajakajian the Court concluded that the extent of harm caused by the
defendant's isolated failure to report the currency was minimal because it "affected only
one party, the Government, and in a relatively minor way. There was no fraud on the
United States, and [the defendant] caused no loss to the public fisc."91 In essence, the
government was only deprived of information about the currency.92 The nature and
extent of harm caused by Jouppi's illegal alcohol smuggling is far greater. Alcohol
abuse in rural Alaska leads to increased crime; disorders, such as alcoholism;
conditions, such as fetal alcohol spectrum disorder; and death, imposing substantial
costs on public health and the administration of justice.93 Within this context, it is clear
that the illegal importation of even a six-pack of beer causes grave societal harm. This
88 Cf. Bajakajian , 524 U.S. at 338-39, 339 n.14.
89 See United States v. Castello, 611 F.3d 116, 123 (2d Cir. 2010) (holding
forfeiture over 40 times value of maximum fine constitutional); United States v.
Mackby , 339 F.3d 1013, 1016-19 (9th Cir. 2003) (holding civil forfeiture approximately
ten times maximum value of fine constitutional); United States v. Rafael, 282 F. Supp.
3d 407, 413 (D. Mass. 2017) (same); United States v. Finazzo, No. 10-CR-457, 2014
WL 3818628, at *34-35 (E.D.N.Y. Aug. 1, 2014) (finding civil forfeiture approximately
ten times maximum value of fine constitutional), rev'd on other grounds, 850 F.3d 94
(2d Cir. 2017). But see United States v. $100,348.00 in U.S. Currency, 354 F.3d 1110,
1122-23 (9th Cir. 2004) (concluding that forfeiture of approximately 3 to 20 times value
of maximum fine was grossly disproportional).
90 Bajakajian , 524 U.S. at 337-39.
91 Id. at 339.
92 Id.
93 Jouppi II , 519 P.3d 653, 678-80 (Alaska App. 2022) (Mannheimer, J.,
concurring in part and dissenting in part) (citing Harrison v. State , 687 P.2d 332 (Alaska
App. 1984); Abraham v. State , 585 P.2d 526 (Alaska 1978)).
-21- 7762
----------------------- Page 22-----------------------
factor strongly suggests that the forfeiture is not grossly disproportional. Taking into
consideration all of the factors discussed above, we conclude that the forfeiture of
Jouppi's airplane is not grossly disproportional to the gravity of his offense.
The court of appeals identified four issues for the trial court to address on
remand when reevaluating the proportionality of the forfeiture under the Bajakajian
factors: (1) whether the forfeiture statute at issue is "aimed at offenders like Jouppi";
(2) whether Jouppi was criminally culpable for all 72 cans of beer found in his aircraft,
or only for the "clearly visible" six-pack; (3) whether Jouppi's offense was "part of a
larger pattern of illegal conduct"; and (4) whether the forfeiture would "effectively
deprive [Jouppi] of his future ability to earn a living."94 None of these issues warrant
remand because any findings made by the trial court would not alter our conclusion that
the forfeiture is not grossly disproportional.
The first issue - whether the forfeiture statute is "aimed at offenders like
Jouppi" - does not warrant remand because Jouppi is clearly within the class of
offenders targeted by the statute for the reasons discussed previously. The second
issue - whether Jouppi was criminally culpable for all 72 beers - would not establish
gross disproportionality regardless of the trial court's determination. After a post-
conviction evidentiary hearing, the trial court found that Jouppi had been "willfully
blind" to a six-pack of beer that was "clearly visible" but did not determine his
culpability with respect to the other 66 beers. It is clear to us that the legislature
94 Id. at 661-65 (majority opinion). The court of appeals also directed the
trial court to make "clearer findings regarding the extent of the harm caused by Jouppi's
illegal conduct." Id. at 662. The trial court's findings on the extent of harm do not
warrant remand because the harm from airplane-facilitated alcohol importation was
clearly addressed in the legislative history of the forfeiture provision and Jouppi is
plainly within the class of offenders it targeted.
-22- 7762
----------------------- Page 23-----------------------
determined that the harm from even a six-pack of beer knowingly imported into a dry
village is severe enough to warrant forfeiture of an aircraft.95
For the same reasons, remand for the third issue identified by the court of
appeals is unnecessary. Regardless of whether Jouppi's conduct was part of a "larger
pattern of illegal conduct," forfeiture of the airplane is mandated by the statute because
of the harm that a single instance of aircraft-facilitated alcohol importation has on rural
communities. In Bajakajian, by contrast, the defendant's lack of connection to other
criminal activity supported the Court's conclusion that he was not within the class of
offenders targeted by the currency reporting statute.96 The statute was intended to target
money launderers, drug traffickers, and tax evaders, whereas Bajakajian's failure to
report was unconnected to any other illegal activities.97 In this case, the forfeiture
provision was intended to target the importation of alcohol into dry villages by aircraft.
It is not particularly relevant whether Jouppi's offense was part of a larger pattern of
criminal activity because a pilot knowingly transporting a passenger's alcohol to a dry
village is precisely the kind of person and conduct that the legislature was concerned
about.
Lastly, remand for the fourth issue - whether the forfeiture would
deprive Jouppi of his livelihood - is also unnecessary. Jouppi argues that any
forfeiture that deprives a defendant of his livelihood is unconstitutionally excessive.
We assume, without deciding, that a forfeiture cannot constitutionally deprive Jouppi
of his livelihood. As the proponent of a constitutional challenge, Jouppi had the burden
95 See AS 04.16.220; Letter from David Marquez, Assistant Att'y Gen., to
John Harris, Co-Chair, H. Fin. Comm. (Apr. 30, 2004) (discussing highlights of
Governor Murkowski's 2004 Crime Bill (CSSB 170)); SECTIONAL SUMMARY FOR
SENATE BILL 170 (Apr. 5, 2004) (noting that forfeiture amendment was intended to
mandate forfeiture of aircrafts used to unlawfully transport alcohol without exception).
96 Bajakajian , 524 U.S. at 337-39.
97 Id.
-23- 7762
----------------------- Page 24-----------------------
to develop both the factual and legal basis for his Eighth Amendment arguments in the
trial court. At the post-conviction evidentiary hearing, Jouppi testified that he was
"pretty much retired from the air taxi business" and that if the airplane were returned to
him, he would "probably just sell it." He did not introduce evidence that the forfeiture
forced him into retirement. He also failed to rebut trial testimony showing that he
owned a second airplane also used by his company, in which he had transported his
company's charter passenger to Beaver later on the same day as the offense at issue in
this case. Jouppi therefore failed to show that the forfeiture unconstitutionally burdened
his livelihood.
In sum, we hold that the forfeiture of Jouppi's airplane is not grossly
disproportional to the gravity of the offense for which he has been convicted and,
therefore, the forfeiture does not violate the Excessive Fines Clause of the Eighth
Amendment. Remand to the trial court for the issues identified by the court of appeals
is thus unnecessary.
B. Jouppi Failed To Preserve His Additional Arguments Regarding The
Alaska Constitution And The Sixth Amendment.
Jouppi raises three additional arguments. First, in his opening brief,
Jouppi "adopts" the Public Defender Agency's argument, as amicus curiae, "by
reference." He contends, for the first time, that the Excessive Fines Clause of the Alaska
Constitution98 is more protective than its federal counterpart. He and the Agency argue
that the Alaska Excessive Fines Clause allows "only those fines that are reasonably
necessary to further the goals of criminal administration." Although - as the State
acknowledges - Jouppi mentioned the Alaska Constitution's protection against
excessive fines in the court of appeals and the trial court, he did not explicitly argue that
98 Alaska Const. art. I, § 12 ("Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.").
-24- 7762
----------------------- Page 25-----------------------
Alaska's Excessive Fines Clause requires a more protective standard than the "gross
disproportionality" test articulated in Bajakajian .
Second, Jouppi argues that the forfeiture of his airplane violates his right
to a jury trial under the Sixth Amendment of the U.S. Constitution.99 He argues that
when the constitutionality of a forfeiture depends on additional factual findings and
those findings are made by the sentencing court, rather than by a jury, the court
impermissibly encroaches on a defendant's constitutional right to a jury's determination
of guilt beyond a reasonable doubt. Jouppi devoted one sentence to his argument under
the Sixth Amendment in his briefing to the court of appeals. The court of appeals did
not address this argument in its opinion.100 Jouppi filed a petition for rehearing before
the court of appeals, arguing that the court erred by not addressing his argument under
the Sixth Amendment. The court of appeals denied his petition and Judge Mannheimer
noted in his concurrence that Jouppi's argument was waived for failure to adequately
brief the issue. We agree with Judge Mannheimer.
Lastly, Jouppi argues, for the first time, that the right to a jury trial under
the Alaska Constitution101 is broader than the right under the federal constitution. But
arguments not raised explicitly prior to appeal are generally waived.102 "[A] party may
not present new issues or advance new theories to secure a reversal of a lower court
99 U.S. Const. amend. VI.
100 See Jouppi II , 519 P.3d 653, 653-69 (Alaska App. 2022).
101 Alaska Const. art. I, § 11.
102 See, e.g., Wells v. Barile, 358 P.3d 583, 589 (Alaska 2015).
-25- 7762
----------------------- Page 26-----------------------
decision."103 Having failed to adequately brief the issues before the court of appeals,
we hold that Jouppi waived all three of his additional arguments.104
CONCLUSION
We VACATE the judgment of the court of appeals and REMAND to the
court of appeals for further proceedings consistent with this opinion.
103 Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985).
104 We do not review Jouppi's arguments for plain error because he did not
address plain error in his briefing. See Alaska R. App. P. 212(c)(1)(H) ("For any issue
not raised or ruled on in the lower court, the appropriate argument section must address
the applicability of the plain error doctrine.").
-26- 7762
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
