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Baum v. State (3/30/01) ap-1731
Baum v. State (3/30/01) ap-1731
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JAMES BAUM and )
RAYMOND BAUM, ) Court of Appeals No. A-7622
Appellants, ) Trial Court No. 3AN-98-3442 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1731 March 30, 2001]
)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Michael L. Wolverton, Judge.
Appearances: Kevin T. Fitzgerald, Ingaldson
Maassen, P.C., Anchorage, for Appellant.
Douglas H. Kossler, Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
This appeal presents two major issues of law dealing with
the range of permissible punishments for big-game guiding offenses.
First, when a person is convicted of a big-game guiding offense,
does forfeiture of an airplane worth $40,000 violate the excessive
fines clause of the Eighth Amendment to the United States
Constitution? For the reasons explained here, we conclude that the
answer is "no". Second, if the applicable sentencing statute gives
the court the authority to suspend or revoke a defendant's hunting
license for up to a maximum number of years, does the sentencing
judge nevertheless retain the power to place the defendant on
probation for a greater number of years and, as a condition of
probation, order the defendant not to obtain a hunting license? For
the reasons explained here, we conclude that the answer is "yes".
Underlying facts, and the two primary contentions raised
on appeal
James Baum, a licensed game guide, was convicted of
possessing and transporting unlawfully taken game. [Fn. 1] As part
of Baum's sentence, Superior Court Judge Michael L. Wolverton
ordered forfeiture of the airplane that Baum had used in the hunt.
James Baum was not the owner of this airplane; he only
leased it. The plane was owned by his brother, Raymond Baum.
Raymond asked the superior court for a remission of this forfeiture,
asserting that he had nothing to do with his brother's violation of
the game laws.
In State v. Rice [Fn. 2] and Fehir v. State [Fn. 3], our
supreme court held that when a court orders forfeiture of property
as part of a criminal sentence, and if someone else owns that
property or holds a secured interest in it, the owner or interest-
holder must be given the opportunity to avoid the forfeiture by
showing that they were not involved in the defendant's wrongdoing
and that they were not negligent in entrusting the property to the
defendant that they did "all that could reasonably be expected to
prevent [the] illegal use [of the property]". [Fn. 4]
This hearing is called a "remission" hearing even though
it sometimes occurs before the sentencing court actually declares
the forfeiture. In the present case, for example, Judge Wolverton
knew that Raymond Baum would be protesting the forfeiture, so the
judge held Raymond's remission hearing as part of the sentencing
proceedings. Judge Wolverton did not order the forfeiture of the
airplane until he had heard and rejected Raymond's claim that he was
an innocent, non-negligent owner.
During the litigation of Raymond Baum's remission claim,
Raymond testified that the airplane was currently worth around
$40,000. On the basis of this testimony, Raymond Baum now asserts
that the forfeiture of the airplane violates the excessive fines
clause of the Eighth Amendment.
As another part of James Baum's sentence, Judge Wolverton
placed Baum on probation for 10 years. As a condition of Baum's
probation, Judge Wolverton ordered Baum "not [to] apply for a hunting
or guiding license [during the entire 10-year] period of probation".
James Baum asserts that this condition of probation is
illegal. He argues that the sentencing provisions applicable to his
offense, AS 16.05.410(b)-(c), only authorize a sentencing court to
revoke a repeat-offender's hunting license "for a period of not ...
more than three years". Based on these sentencing provisions, Baum
contends that Judge Wolverton exceeded his sentencing authority when
he used Baum's conditions of probation to prohibit Baum from hunting
or guiding for 10 years.
Baum also argues that AS 16.05.410(b)-(c) limited Judge
Wolverton's authority to revoke Baum's guiding license (in
distinction to his hunting license). But the "licenses" covered by
that statute are the licenses issued under AS 16.05 i.e., hunting,
sport-fishing, trapping, fur-dealing, and taxidermy licenses. [Fn.
5] The issuance and revocation of guiding licenses are governed by
AS 8.54.
For purposes of deciding this appeal, we will assume that
the superior court's revocation of Baum's guiding license was
governed by AS 8.54.720(f)(2), which declares that when a licensed
guide is convicted of violating a state game statute or regulation,
the sentencing court must revoke the defendant's guiding license for
"not more than five years".
Forfeiture of a $40,000 airplane for a guiding offense
does not violate the excessive fines clause of the Eighth Amendment
Judge Wolverton ordered forfeiture of the airplane as part
of James Baum's sentence for violating the game laws. The
forfeiture of the airplane was therefore an in personam forfeiture
(i.e., a forfeiture inflicted as punishment for a crime) as opposed
to an in rem forfeiture (i.e., a forfeiture resulting from an
independent civil action brought by the government against the
"offending" property). [Fn. 6]
Raymond Baum argues that when a property owner asks for
remission of an in personam forfeiture, the property owner's request
converts the forfeiture proceeding into an in rem proceeding. Baum
has presented no legal authority to support this argument, and the
supreme court's discussions in Rice and Fehir suggest that Baum is
wrong. For these reasons, we reject Raymond Baum's argument.
But the fact that the forfeiture of Baum's airplane was
an in personam forfeiture does not necessarily mean that Baum's
excessive fines argument fails. In Hillman v. Anchorage [Fn. 7],
this court recognized that "the Eighth Amendment's proscription on
'excessive fines' extends to in personam forfeitures." [Fn. 8] An
in personam forfeiture that is, a forfeiture imposed as punishment
for a crime will violate the Eighth Amendment if it is "grossly
disproportionate to the defendant's offense". [Fn. 9]
Raymond Baum argues that forfeiture of an airplane worth
$40,000 is grossly disproportionate to James Baum's offense of
possessing and transporting illegally taken game. But under AS
8.54.720(a)(8) and 720(c)-(d), when a licensed guide violates a
hunting statute or regulation, or aids another person in doing so,
the penalty for a first offense includes "a fine of not more than
$30,000", while the penalty for a second or subsequent offense
includes a fine of up to $50,000 (the maximum fine for a class C
felony). [Fn. 10]
Given these statutory penalties, we conclude that
forfeiture of an airplane worth $40,000 is not grossly
disproportionate to James Baum's offense. We therefore reject
Raymond Baum's contention that this forfeiture violates the Eighth
Amendment.
The record supports the superior court's finding that
Raymond Baum was not an innocent, non-negligent owner
As his second point on appeal, Raymond Baum challenges
Judge Wolverton's finding that Baum was not an innocent, non-
negligent owner. As explained above, when the owner of property
seeks remission of a forfeiture, the owner bears the burden of
proving that they did "all that could reasonably be expected to
prevent [the] illegal use [of the property]". [Fn. 11]
The testimony presented at the remission hearing shows
that Raymond Baum purchased the airplane in 1992 for $18,000.
Raymond relied on his brother James to arrange the purchase. After
spending $7000 to restore the plane to flying condition, Raymond
began leasing the plane to his brother James in 1994. For the use
of this plane and one other, James agreed to pay Raymond $6000 per
year. Thus, during the next five years, because of James Baum's
guiding activities, Raymond Baum made many thousand dollars on his
airplane investment.
Raymond conceded that he knew that James would be using
the airplane in his guiding business. Raymond also conceded that
he knew James had been convicted of guiding violations in the past,
and that James had earlier suffered the forfeiture of an airplane
for his guiding offenses.
At the conclusion of this evidence, Judge Wolverton found
that Raymond Baum knowingly took a risk when he purchased the
airplane and leased it to his brother for use in the guiding
business. Apparently based on the indications that James Baum's
guiding business had provided all of the money to repair and
maintain the airplane, Judge Wolverton concluded that Raymond and
James were engaged in a "joint venture with respect to the plane".
Judge Wolverton also found that Raymond knew the risk that his
brother James might use the airplane to break the law, and he
unreasonably discounted or ignored this risk. This was essentially
a finding that Raymond acted "recklessly" as that term is defined
in AS 11.81.900(a)(3).
Viewing the record in the light most favorable to
upholding the superior court's findings, Judge Wolverton could
properly find that Raymond Baum bought the airplane knowing that
James Baum would use it to make money guiding, and that he leased
it to James with the anticipation that James's lease payments would
cover all of the annual costs of upkeep and insurance. Indeed,
Raymond testified that "[t]hat was the beauty of this agreement."
The record further supports Judge Wolverton's conclusion that the
two brothers engaged in a joint venture with respect to the
airplane, and that Raymond consciously disregarded the known risk
that James would violate the law while using the plane in his
guiding business.
In Rice, the supreme court declared that, in requiring
remission of forfeitures for innocent, non-negligent owners, the
court was thinking of owners who could show that, "prior to parting
with the property[, they] did not know, nor [did they] have
reasonable cause to believe, either that the property would be used
to violate the law or that the violator had a criminal record or a
reputation for commercial crime". [Fn. 12] Raymond Baum, by his own
admission, fails this test. Moreover, Judge Wolverton found that
Raymond Baum not only was aware of the risk but also had a financial
interest in ignoring this risk.
Given this record and Judge Wolverton's findings, it is
clear that Raymond Baum was not an innocent, non-negligent owner.
We therefore uphold Judge Wolverton's decision to deny Raymond
Baum's request for remission of the forfeiture.
A sentencing court can, as a condition of probation,
forbid a defendant from obtaining a license or engaging in licensed
activity for a longer period of time than the maximum suspension or
revocation period that the court might impose as a direct term of
the defendant's sentence
The remaining point on appeal concerns James Baum's
sentence. As explained above, Judge Wolverton placed Baum on
probation for 10 years and, as a condition of his probation, Judge
Wolverton ordered Baum not to apply for a hunting or guiding
license. Baum asserts that this condition of probation is illegal
because it effectively prohibits him from engaging in hunting and
big-game guiding for more than the maximum license revocation
authorized by the relevant sentencing statutes.
The State argues that Baum has misconstrued the sentencing
statutes, but we conclude that we do not need to resolve that
controversy. Even if Baum has correctly interpreted the sentencing
statutes that is, even if the superior court was only authorized
to impose a 3-year revocation of Baum's hunting license and a 5-year
revocation of his guiding license as a direct term of Baum's
sentence, Judge Wolverton nevertheless had the additional authority
to impose a condition of probation that prohibited Baum from hunting
or guiding throughout the entire 10-year period of probation.
This court has previously recognized that a sentencing
court can impose certain punishments for instance, restitution
to the victim of a crime either as a direct term of the
defendant's sentence or as a condition of the defendant's probation
(or both). [Fn. 13] In Alaska, sentencing courts have broad
authority to fashion conditions of probation so long as the
conditions are reasonably related to the probationer's
rehabilitation or the protection of the public. [Fn. 14] Indeed,
in Brown v. State [Fn. 15], the supreme court held that a sentencing
court might order a defendant to pay a fine as a condition of
probation even though the applicable sentencing statute did not
authorize imposition of a fine as a direct term of the defendant's
sentence. [Fn. 16]
In Wylie v. State [Fn. 17], this court noted, but did not
resolve, the question of whether a sentencing court might use
conditions of probation to restrict a defendant from engaging in a
licensed activity for longer than the maximum license suspension or
revocation period specified in the sentencing statute. But courts
in other jurisdictions generally hold that a sentencing court has
this power.
For example, in People v. Dickens [Fn. 18], the defendant
was convicted of negligent homicide for killing a person with his
car. The Michigan Court of Appeals ruled that even though the
pertinent sentencing statute specified a driver's license revocation
of no more than 2 years, the sentencing court had the authority to
order the defendant not to drive for 5 years as a condition of
probation. [Fn. 19]
And in State v. Nelson [Fn. 20], the defendant was
convicted of driving while intoxicated "with fatality resulting".
The Vermont Supreme Court ruled that even though the applicable
penalty provision allowed only a 1-year revocation of the
defendant's driver's license, the sentencing court could
nevertheless impose a condition of probation forbidding the
defendant from driving a motor vehicle for the entire duration of
his probation. [Fn. 21]
We are persuaded by these decisions from other states
because they reflect a view of a sentencing court's probationary
authority that is most consistent with the approach taken by this
court and the Alaska Supreme Court. Probation conditions often
restrict a defendant's activities beyond the limits of what a
sentencing court might impose as a direct component of the
defendant's sentence. Such conditions of probation are lawful so
long as they are reasonably related to the probationer's
rehabilitation or the protection of the public, and so long as they
do not unjustifiably infringe a defendant's constitutional rights.
James Baum has been convicted of hunting violations
before. He has previously suffered the forfeiture of two airplanes
for his violations. Despite these prior convictions and
punishments, he continues to violate the hunting laws of this state.
Judge Wolverton could reasonably conclude that the goals of
rehabilitation and protection of the public would be served by a
condition of probation forbidding Baum from engaging in hunting or
guiding for the next 10 years. For these reasons, we uphold the
challenged condition of probation.
Conclusion
We have concluded that forfeiture of a $40,000 airplane
is not grossly disproportionate to James Baum's offense. We have
also concluded that Judge Wolverton was not clearly erroneous when
he denied Raymond Baum's request for remission of this forfeiture
i.e., when he ruled that Raymond Baum had failed to prove that
he was an innocent, non-negligent owner. Finally, we have concluded
that a sentencing court has the power to impose a condition of
probation that prohibits a defendant from pursuing a licensed
activity for longer than the maximum period of license suspension
or revocation that might be imposed as a direct term of the
defendant's sentence.
Accordingly, the judgement of the superior court is
AFFIRMED.
FOOTNOTES
Footnote 1:
5 AAC 92.140.
Footnote 2:
626 P.2d 104 (Alaska 1981).
Footnote 3:
755 P.2d 1107 (Alaska 1988).
Footnote 4:
Rice, 626 P.2d at 114.
Footnote 5:
See AS 16.05.330(a) and 340(a).
Footnote 6:
See Hillman v. Anchorage, 941 P.2d 211, 215 (Alaska App. 1997).
Footnote 7:
941 P.2d 211 (Alaska App. 1997).
Footnote 8:
Id. at 216.
Footnote 9:
Id. The United States Supreme Court recently re-affirmed this
test in United States v. Bajakajian, 524 U.S. 321, 333-34; 118 S.Ct.
2028, 2036; 141 L.Ed.2d 314 (1998).
Footnote 10:
See AS 12.55.035(b)(2).
Footnote 11:
Rice, 626 P.2d at 114.
Footnote 12:
Id., 626 P.2d at 114 (quoting 19 C.F.R. sec. 171.13(a))
(emphasis
added).
Footnote 13:
See Kelly v. State, 842 P.2d 612, 613-14 (Alaska App. 1992).
Footnote 14:
See Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977);
Whitehead v. State, 985 P.2d 1019, 1020 (Alaska App. 1999).
Footnote 15:
559 P.2d 107 (Alaska 1977).
Footnote 16:
See id. at 109-110.
Footnote 17:
797 P.2d 651, 663 n.11 (Alaska App. 1990).
Footnote 18:
373 N.W.2d 241 (Mich. App. 1985).
Footnote 19:
See id. at 245.
Footnote 20:
742 A.2d 1248 (Vt. 1999).
Footnote 21:
See id. at 1251-53.
