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IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 35955
STATE OF IDAHO,                                                                                                                                                                                 )
                                                                                                                                                                                                )   2010 Opinion No. 42
                                                                                                   Plaintiff-Respondent,                                                                        )
                                                                                                                                                                                                )   Filed: June 10, 2010
v.                                                                                                                                                                                              )
                                                                                                                                                                                                )   Stephen W. Kenyon, Clerk
GINGER J. KEY,                                                                                                                                                                                  )
)
Defendant-Appellant.                                                                               )
)
Appeal from the District Court of the Second Judicial District, State of Idaho,
Idaho County.  Hon. Jeff M. Brudie, District Judge.
Order of the district court forfeiting vehicle, affirmed.
Molly J. Huskey, State Appellate Public Defender; Sarah E. Tompkins, Deputy
Appellate Public Defender, Boise, for appellant.  Sarah E. Tompkins argued.
Hon.  Lawrence  G.  Wasden,  Attorney  General;  Rosemary  Emory,  Deputy
Attorney General, Boise, for respondent.  Kenneth K. Jorgensen argued.
GUTIERREZ, Judge
Ginger J. Key appeals from the district court‟s order forfeiting her vehicle after her guilty
plea to possession of marijuana in a quantity greater than three ounces.  We affirm.
I.
FACTS AND PROCEDURE
After a drug dog alerted on Key‟s 1992 Toyota Celica, officers discovered approximately
5.23 ounces of marijuana1 inside a backpack in the vehicle and approximately $2,100 cash in her
purse.   Key was charged with possession of marijuana with the intent to deliver, possession of
marijuana with the intent to deliver where a child is present, and possession of marijuana in an
1                                                                                                  A detective later testified that the marijuana had a “street value” of approximately $200-
$250 an ounce.
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amount greater than three ounces.   The state requested criminal forfeiture of Key‟s Toyota and
the $2,100.  The state later withdrew its request to forfeit the $2,100.
Key pled guilty to possession of marijuana in an amount greater than three ounces
pursuant to a plea agreement.  The state agreed to dismiss the remaining charges and recommend
that the court retain jurisdiction.   Key also reserved the right to challenge the state‟s request for
the forfeiture of her vehicle.2
At the sentencing hearing, the parties stipulated that the value of Key‟s vehicle was
$1,500, but also noted Key‟s reservation of the right to challenge the forfeiture.   The state
informed the court that it was relying on the testimony provided at the hearing on Key‟s
suppression motions, as well as the material contained in the PSI report in support of its
forfeiture request, and that it would not provide any additional evidence.   It then argued that the
vehicle should be forfeited on the basis that it had been used to possess and transport the large
amount of marijuana found in the backpack.    In turn, Key argued that forfeiture was not
appropriate where she had pled guilty to mere possession as opposed to possession with an intent
to deliver, there was no evidence that the vehicle was used to facilitate possession of the
marijuana, and the state had not shown that the marijuana was purchased on the day of the stop.
The district court sentenced Key to five years imprisonment with two years determinate
and retained jurisdiction, eventually placing Key on probation.   It also ordered restitution in the
amount of $800, and the forfeiture of Key‟s vehicle.3   Key now appeals the forfeiture of her
vehicle.
2                                                                                                        Specifically, the plea agreement contained the following provision:
The State shall be free to present evidence and argument for criminal forfeiture of
the personal property described in Paragraph 2 of this agreement.   The Defendant
shall be free to present evidence and argument that forfeiture of the personal
property should not be ordered.   The Court may order forfeiture of the personal
property as provided by law.
3                                                                                                        The district court‟s order is entitled “Order of Civil Forfeiture.”   It is apparent, however,
from the substance of the order that the court was ordering the forfeiture of Key‟s vehicle under
the criminal forfeiture statute and thus, the heading was merely a clerical mistake.
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II.
ANALYSIS
Key  raises  several  issues  on  appeal  in  regard  to  the  forfeiture,  namely  that  her
constitutional right to a jury trial under both the Idaho and Federal Constitutions was violated
when the question of whether the state was entitled to forfeiture was tried before the district
judge rather than a jury, that the court erred in failing to determine whether the size of the
property forfeited was unfairly disproportionate to the size of the property actually used in the
commission of the underlying offense and in determining that her vehicle was used to commit or
facilitate  the  underlying  offense,  and  that  the  forfeiture  violated  the  Eighth  Amendment
prohibition against excessive fines.
A.                                                                                                      Constitutional Right to a Jury Trial
Key contends that her constitutional right to a jury trial, ensured by both the Idaho and
Federal Constitutions, was violated when the issue of whether the state was entitled to forfeiture
of her vehicle was tried before a district judge and not a jury, despite the fact that Key never
waived her right to a jury determination of the issue.  Given that the district court forfeited Key‟s
vehicle pursuant to Idaho Code § 37-2801(2),4 the state argues that Key failed to preserve the
4                                                                                                       Idaho Code § 37-2801 provides that:
Any person who is found guilty of, who enters a plea of guilty, or who is
convicted of a violation of the uniform controlled substances act, chapter  27,
title 37, Idaho Code, punishable by imprisonment for more than one (1) year, no
matter the form of the judgment or order withholding judgment, shall forfeit to the
state of Idaho:
(2) Any of the person‟s property used, or intended to be used, in any
manner or part, to commit, or to facilitate the commission of such violation.   The
court, in imposing sentence on such person, shall order, in addition to any other
sentence imposed pursuant to chapter 27, title 37, Idaho Code, that the person
forfeit to the state of Idaho all property described in this section.   The provisions
of this chapter shall not be construed or interpreted in any manner to prevent the
state of Idaho, attorney general or the appropriate prosecuting attorney from
requesting  restitution  pursuant  to  section                                                          37-2732(k),  Idaho  Code,  or,  if
appropriate, from pursuing civil forfeiture pursuant to section  37-2744 and/or
section 37-2744A, Idaho Code. . .                                                                       . The issue of criminal forfeiture shall be for the
court alone, without submission to a jury, as a part of the sentencing procedure
within the criminal action.
(Emphasis added).
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issue for appeal because she did not object to the statute‟s constitutionality below and Idaho
courts have held that a party may not challenge the constitutionality of a statute for the first time
on appeal.   Key concedes that she is raising the issue for the first time on appeal, however, she
contends that the prohibition against challenging the constitutionality of a statute for the first
time on appeal does not bar her claim because her  “actual assertion is based upon a direct
violation of her personal constitutional right, and is not an abstract assertion that I.C. § 37-
2801(2)  is  unconstitutional.”    While  conceding  that  the  statute  is                                “pertinent  to  the issues
regarding her right to a jury trial insofar as the statute has language that there is no right to a jury
trial,” she argues that “regardless of the language of the statute, [her] constitutional right to a jury
trial would trump any contrary language in the statute; and therefore the statutory language is in
no way dispositive of the analysis and outcome in this case.”   We first analyze whether we may
address the issue for the first time on appeal, and concluding that we can, proceed to address the
merits of Key‟s constitutional challenges.
1.                                                                                                         Fundamental error
Idaho  appellate  courts  have  typically  indicated  that  we  will  not  consider  the
constitutionality of a statute for the first time on appeal.   See State v. Wiedmeier, 121 Idaho 189,
192, 824 P.2d 120, 123 (1992) (refusing to consider an equal protection challenge to a statute
where the issue had been raised for the first time on appeal); State v. Fox, 130 Idaho 385, 387,
941  P.2d                                                                                                  357,                         359  (Ct.  App.   1997)   (refusing  to  consider  whether  an  arson  statute  was
unconstitutionally vague or overbroad where the defendant had failed to raise the issue before the
trial court).   However, in State v. Hollon, 136 Idaho 499, 36 P.3d 1287 (Ct. App. 2001), we
indicated that we may address the constitutionality of a statute where the issue has not been
preserved if we are persuaded that it would be fundamental error for this Court to allow a
defendant to waive the right at issue.   Id. at 503, 36 P.3d at 1291.   In Hollon, the defendant had
challenged for the first time on appeal the constitutionality of I.C.  §  18-705, criminalizing
resisting and obstructing officers, contending it was overbroad as it applied to him where he
alleged that prosecution for his failure to cooperate with the officer was a violation of his First
Amendment right to free speech.   We did not reach the issue, however, noting that we were not
persuaded that it amounted to fundamental error to allow the defendant to waive a challenge that
the statute was overbroad as applied.  Id.
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Thus, we examine here whether it would be fundamental error to allow Key to waive a
challenge to the statute as violating her state and federal constitutional rights to a jury trial where
she did not raise the issue below.   Error that is fundamental must be such error as goes to the
foundation or basis of a defendant‟s rights or must go to the foundation of the case or take from
the defendant a right which was essential to his defense and which no court could or ought to
permit him to waive.   State v. Severson, 147 Idaho 694, 716, 215 P.3d 414, 436 (2009).   In this
instance, the right implicated--the right to a jury trial--has been afforded the utmost regard.   As
we discuss below, Article 1, § 7 of the Idaho Constitution states that the “right of trial by jury
shall remain inviolate.”   In State v. Bennion, 112 Idaho 32, 37, 730 P.2d 952, 957 (1986), our
Supreme Court expounded on the historical importance of the right:
The right to trial by jury always has been salient to the American people.
In  no  less  a  document  than  the  Declaration  of  Independence,  our  nation‟s
founders grounded, in part, their dissolution of political ties with Great Britain on
the King‟s “depriving us, in many cases, of the benefits of trial by jury.”   As the
United States Supreme Court has observed, the Framers of both the federal and
state constitutions interposed juries of citizens between governments and those
persons the governments have accused of wrong in order to avert the abuse of
authority:
The  guarantees  of  jury  trial  in  the  Federal  and  State
Constitutions reflect a profound judgment about the way in which
law should be enforced and justice administered.   A right to jury
trial  is  granted  to  criminal  defendants  in  order  to  prevent
oppression by the Government.  Those who wrote our constitutions
knew from history and experience that it was necessary to protect
against unfounded criminal charges brought to eliminate enemies
and against judges too responsive to the voice of higher authority.
The framers of the constitutions strove to create an independent
judiciary  but  insisted  upon  further  protection  against  arbitrary
action.   Providing an accused with the right to be tried by a jury of
his peers gave him an inestimable safeguard against the corrupt or
overzealous  prosecutor  and  against  the  compliant,  biased,  or
eccentric judge.    If the defendant preferred the common-sense
judgment  of  a  jury  to  the  more  tutored  but  perhaps  less
sympathetic  reaction  of  the  single  judge,  he  was  to  have  it.
Beyond this, the jury trial provisions in the Federal and State
Constitutions reflect a fundamental decision about the exercise of
official power--a reluctance to entrust plenary powers over the life
and liberty of the citizen to one judge or to a group of judges.  Fear
of  unchecked  power,  so  typical  of  our  State  and  Federal
Governments in other respects, found expression in the criminal
law  in  this  insistence  upon  community  participation  in  the
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determination of guilt or innocence. Duncan  [v. Louisiana,  391
U.S. 145, 155-56 (1968)].
                                                                                                      The  Framers  of  the  Idaho  Constitution  phrased  their  convictions  in
unequivocal fashion:                                                                                  “The right of trial by jury shall remain inviolate . . .                      .”
Idaho Const. Article 1, § 7.
“[T]his Court,” Justice McQuade accurately observed,  “has a duty to
protect  the  people‟s  rights  as  enumerated  in  the  Idaho  and  United  States
Constitutions from legislative encroachment.”   Thompson v. Hagan, 96 Idaho 19,
24, 523 P.2d 1365, 1371 (1974).   The right to a jury trial is a fundamental right,
and must be guarded jealously.
Bennion, 112 Idaho at 36-37, 730 P.2d at 956-57 (citation omitted).   See also State v. Carrasco,
117 Idaho 295, 297, 787 P.2d 281, 283 (1990) (recognizing that the right to a jury trial is a
fundamental right such that a valid waiver of the right will not be inferred by mere silence but
must be demonstrated by express and intelligent action on the part of the defendant); State v.
Wheeler, 114 Idaho 97, 101, 753 P.2d 833, 837 (1998) (same).   On this basis, we conclude that
the claimed error in this instance qualifies for appellate review under the fundamental error
doctrine such that we will address the merits of Key‟s constitutional challenges for the first time
on appeal.   Accord State v. Hunnel, 125 Idaho 623, 625, 873 P.2d 877, 879 (1994) (holding that
claimed error regarding the waiver of defendant‟s Sixth Amendment right to counsel qualified as
fundamental error).
2.                                                                                                    United States Constitution
Key  contends  that  her  constitutional  right  to  a  jury  trial,  pursuant  to  the  Sixth
Amendment of the United Constitution, was violated when the issue of whether the state was
entitled to forfeiture of her vehicle was tried before the district judge despite the fact that she
never waived her right to a jury determination of the issue.
On appeal, Key concedes that the United States Supreme Court has addressed, and
rejected, the assertion that there is a Sixth Amendment right to a jury determination in criminal
forfeiture actions.   See Libretti v. United States, 516 U.S.  29, 48-49  (1995).   She counters,
however, that the Court‟s basis for the Libretti decision has since been disavowed by the
Supreme Court in Blakely v. Washington, 542 U.S. 296 (2004) and Apprendi v. New Jersey, 530
U.S. 466 (2000) and their progeny.   The state contends that this same argument has been made
and repeatedly rejected by federal circuit courts of appeal throughout the country.   In her reply
brief, Key responds that these federal appeals cases were wrongly decided and continues to
assert her Sixth Amendment argument.
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In Libretti, the defendant argued that he enjoyed a constitutional right to have a jury
decide the extent of his criminal forfeiture.   In rejecting the argument, the Court explained that
“the  right  to  a  jury verdict  on  forfeitability does  not  fall  within  the  Sixth  Amendment‟s
constitutional protection” because criminal forfeiture concerns sentencing, not the elements of a
crime.   Id. at 49.   The Court disagreed with Libretti‟s characterization of forfeiture as a “hybrid
that shares elements of both a substantive charge and a punishment imposed for criminal
activity,” id. at                                                                                       40, and refused to put the forfeitability determination on a par with a jury
determination  of  guilt  or  innocence,  holding  that  any  right  to  a                              “jury  determination  of
forfeitability is merely statutory in origin,” id. at 49.
In Apprendi, the Supreme Court examined a state hate crime statute that allowed for an
increase in the maximum prison sentence based on a judge‟s finding by a preponderance of the
evidence that the defendant acted with the purpose to intimidate the victim as a result of
particular characteristics of the victim.   Id. at 468-69.   The Court held that because the finding
increased the statutory maximum punishment, the question must be put to a jury.  Id. at 497.  The
Court followed with a holding in Blakely that any fact, other than the fact of a prior conviction,
which increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury and proven beyond a reasonable doubt.  Blakely, 542 U.S. at 305.
As the state points out, the argument that Key advances pertaining to Apprendi and its
progenies‟ effect on Libretti has been rejected by every federal circuit court of appeals that has
addressed it.   In United States v. Hall, 411 F.3d 651 (6th Cir. 2005), the Sixth Circuit explained
its holding that Apprendi and Blakely did not alter the holding of Libretti:
And while [United States v. Booker, 543 U.S. 220 (2005)] (and [Blakely], before
that)  redefined  what  constitutes  a  statutory maximum  for  Sixth  Amendment
purposes,  the  forfeiture  statute  at  issue  in  this  case                                          (and,  we  suspect,  most
forfeiture statutes) does not contain a statutory maximum. . .                                          . The absence of a
statutory maximum or any sort of guidelines system indicates that the forfeiture
amounts to a form of intermediate sentencing, which has never presented a Sixth
Amendment problem.
Hall, 411 F.3d at 654-55.   See also United States v. Leahy, 438 F.3d 328, 332 (3d Cir. 2006)
(holding that Libretti “flatly holds that the Sixth Amendment is not implicated in the forfeiture
context” and that the circuit court is “not free to ignore the Supreme Court‟s holding in Libretti”
nor do they “possess the authority to declare that the Supreme Court has implicitly overruled one
of its own decisions”); United States v. Fruchter, 411 F.3d 377, 383 (2d Cir. 2005) (holding that
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neither Apprendi, Blakely or United States v. Booker, 543 U.S. 220 (2005), altered Libretti’s
holding); United States v. Washington, 131 Fed. Appx. 976, 977 (5th Cir. 2005) (holding that
“Libretti has not been overruled by Blakely” and therefore Libretti controls the constitutional
issue “unless and until the Supreme Court itself determines to overrule it”); United States v.
Messino, 382 F.3d 704, 713 (7th Cir. 2004) (holding that Blakely, like Apprendi does not apply
to forfeiture proceedings where criminal forfeiture proceedings have no statutory maximum);
United States v. Keene, 341 F.3d 78, 85-86 (1st Cir. 2003) (recognizing that other circuits have
consistently refused to apply Apprendi’s requirements to criminal forfeitures and following suit);
United States v. Shyrock, 342 F.3d 948, 991 (9th Cir. 2003) (holding that Apprendi did not
disturb previous federal law on criminal forfeiture); United States v. Najjar, 300 F.3d 466, 485-
86 (4th Cir. 2002) (holding that nothing in Apprendi overruled the Supreme Court‟s precedent
that criminal forfeiture determinations were not subject to the Sixth Amendment right to a jury
trial); United States v. Cabeza, 258 F.3d 1256, 1257 (11th Cir. 2001) (holding that because
criminal forfeiture is a punishment and not an element of an offense, it does not fall within the
reach of Apprendi).
We find the circuit courts‟ analysis of this issue persuasive and decline to deviate from
their unanimous interpretation of federal constitutional law.  Therefore, Key‟s contention that her
federal constitutional right to a jury trial was violated by the forfeiture proceeding in this case
fails.
3.                                                                                                       Idaho Constitution
Key also argues that Article 1, § 7 of the Idaho Constitution guarantees her a right to a
jury determination regarding the facts underlying the forfeiture of her vehicle.   Specifically, she
contends that the provision of Article 1, § 7 that the “right of trial by jury shall remain inviolate”
provides for a right to a jury determination despite the provision of I.C. § 37-2801(2) that the
forfeiture determination is for the court only.
Initially we note that state constitutions can afford greater procedural protections to
accused  persons  than  does  the  Federal  Constitution,  such  that  we  are  not  bound  by  our
conclusion regarding the Federal Constitution when interpreting our state provision.   Bennion,
112 Idaho at 35, 730 P.2d at 955; Gibson v. State, 110 Idaho 631, 635, 718 P.2d 283, 287 (1986).
In  Bennion,                                                                                             112  Idaho  32,  730  P.2d  952,  the  Idaho  Supreme  Court  undertook  an
extensive analysis of the Article 1, § 7 jury trial provision to determine whether the Idaho Traffic
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Infractions Act, which defined infractions as “civil public offense[s] . . . for which there is no
right to trial by jury . . .                                                                              .,” was violative of the Idaho Constitution‟s directive that the right to a
jury trial remain inviolate.    Initially, the Court engaged in a lengthy discussion as to how
Article 1, § 7 is to be construed in determining whether the right to a jury trial exists in a specific
proceeding, first stating:
This Court long and often has stated that Article 1, § 7 preserves the right
to jury trial as it existed at the common law and under the territorial statutes when
the  Idaho  Constitution  was  adopted.                                                                   Most  jurisdictions  interpret  their
analogous constitutional provisions in an analogous way.   The standard embodies
the common sense notion that, by employing the phrase “shall remain inviolate,”
the Framers must have intended to perpetuate the right as it existed in 1890.
Id. at 37, 730 P.2d at 957 (citations omitted).   The Court then noted that despite this rule, the
Framers “did not intend to literally freeze the law precisely as it existed in 1890” as this “would
yield the absurd result of affording no right to jury trial to those accused of crimes that happened
not to be in statutory or common law existence at that arbitrary point in history” and pointed out
that the Framers had been well aware of the nature of constitutions such that they are general
rules and laws                                                                                            “to give general directions and lay a foundation that is broad enough for
legislative enactment . . .                                                                               .”   Id. at 37, 730 P.2d at 957 (citations omitted).   The court concluded,
the Framers did not mean for “Article 1, § 7 to serve as a shorthand enactment into perpetuity of
existing statutory and common law on the right to jury trial.”   Id. at 38, 730 P.2d at 958.   The
Court summarized its approach to interpreting Article 1, § 7 stating:
Certainly the right to a jury trial as it existed in 1890 is the beginning point of our
analysis of the meaning of Article 1, § 7.   The “claims of history”, of necessity,
will “weigh heavily.”                                                                                     [Felix Frankfurter and Thomas G. Corcoran, Petty Offenses
and the Constitutional Guaranty of Trial by Jury, 39 HARV. L. REV. 917, 922
(1926)].   Though we are not bound by historic stereotype, we will endeavor to
interpret Article                                                                                         1,                                                                            §  7 consistent with the right to jury trial as the Framers
conceived it. . .
Id.
The Court proceeded to review the territorial laws of Idaho at the time of the passage of
the state constitution, as well as the common law and the federal law as they existed at the time.
It came to the conclusion that the territorial statutes had provided for the right to a jury trial that
was significantly more expansive than that afforded by either the common law or federal law at
the time--and had specifically stated that the statutes adopted the common law of England only
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in cases not provided for in the statutes.   The Court stressed that “every indication from the law
of 1890 and from the deliberations of the constitutional convention points to there being a right
to a jury trial in every extant criminal action, with the probable exception of some contempt
proceedings and the removal of public officials.”5   And by dictating in Article 1, § 7 that the
right to a jury “shall remain inviolate,” it was implied that the Framers “intended to perpetuate at
least in a general way the existing right to a jury trial.”   Id. at  41-42,  730 P.2d at  961-62
(emphasis added).
The Court noted that the language of Article 1, § 7 and Article 5, § 1 did not preclude the
existence of a future defined class of crimes to which the right to a jury trial does not apply as the
Framers chose not to expressly require that all criminal actions be tried before a jury.   Id. at 42-
43, 730 P.2d at 962-63.   After a lengthy discussion, the Court ultimately concluded that crimes
not punishable by imprisonment did not require a trial by jury.   Id. at 44, 730 P.2d at 964.   This
did not end the inquiry, however.  The Court continued:
This is not to say that crimes not potentially punishable by imprisonment
never fall under the requirements of Article 1, § 7.   The Framers expressed some
concern for the deprivation of property rights as well as liberty without the benefit
of a jury trial.   Proceedings and Debates of the Constitutional Convention of
Idaho 152, 158, 229 (1889).   Means of sanction other than imprisonment, such as
fines  and  the  deprivation  of  privileges  or  offices,  if  serious  and  substantial
enough, can rise to the level of criminal sanction.   At some point the sanction
crosses the line between remedial, regulatory, compensatory, or coercive, and
becomes punitive.   In such a case, Article 1, § 7 would apply.   The measure to
look to in judging whether or not a sanction is punitive is the maximum penalty.
Id.                                                                                                      (citations omitted).
Applying this framework, the Court concluded that the Traffic Infractions Act was not
unconstitutional in denying a party charged under the act a jury trial.   Among other things, the
Court noted that a party charged under the act faced no imprisonment.   In addition, the Court
concluded that the sanction imposed--a fine not exceeding $100--did not rise to the level of a
punitive, criminal sanction where $100 appears to be “reasonable and thus remedial rather than
punitive in nature.”  Therefore, a defendant was not entitled to a jury trial in such instances.
5                                                                                                        The Court compared this with the common law of England, which provided for “a great
volume of offenses” to be tried without a jury as well as the federal law which, at the time,
dispensed with juries in misdemeanor trials.  State v. Bennion, 112 Idaho 32, 38-39, 42, 730 P.2d
952, 958-59, 962 (1986).
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While Bennion is instructive, it is not dispositive--even if we were to conclude that
criminal forfeiture is                                                                                    “punitive” in nature, because Bennion discusses when a jury trial is
required to determine a defendant‟s guilt of an underlying crime--not, as is the case here, the
facts necessary to fashion a portion of the sentence after a defendant has already been found
guilty (or pled guilty) to an underlying crime.   Thus, following Bennion’s general analytical
framework, we examine the state of the common law in regard to the right to a jury trial in
forfeiture actions at the time Idaho‟s Constitution was enacted, but first, for the sake of clarity,
we examine the nature of criminal forfeiture as opposed to civil forfeiture.
The classical distinction between civil and criminal forfeiture was founded upon whether
the penalty assessed was against the person or against the thing.   United States v. Seifuddin, 820
F.2d  1074,  1076  (9th Cir.  1987).    Forfeiture against the person operated in personam and
required a conviction before the property could be wrested from the defendant.    Id.  (citing
Calero-Toledo v. Pearson Yacht Leasing, Co., 416 U.S. 663, 682 (1974); One 1958 Plymouth
Sedan v. Pennsylvania, 380 U.S. 693, 700 (1965)) (emphasis added).   Such forfeitures were
regarded as  criminal  in  nature because they were penal;  they primarily sought  to  punish.
Seifuddin, 820 F.2d at 1076.   Forfeiture against the thing was in rem, and the forfeiture was
based upon the unlawful use of the res, irrespective of its owner‟s culpability.   Id.   See also Kirk
W. Munroe, Surviving the Solution: The Extraterritorial Reach of the United States, 14 DICK. J.
INT‟T L. 505, 515 (1996) (“As this is a civil forfeiture action, the U.S. government need not bring
criminal charges, either before or after the forfeiture.                                                  [It can] forfeit assets without ever bringing
a criminal charge against anyone involved with the asset.”).6   These forfeitures were regarded as
civil; their purpose was remedial.  Seifuddin, 820 F.2d at 1077 (citing Calero-Toledo, 416 U.S. at
680-81; United States v. United States Coin & Currency, 401 U.S. 715, 719 (1971)).   In other
words, civil forfeiture acts in rem against the seized property itself, but criminal forfeiture acts in
personam as a punishment against the party who committed the criminal acts.   United States v.
6                                                                                                         In fact, the government not only has no duty to prove beyond a reasonable doubt that a
crime was committed, it also has no duty to prove a crime by clear and convincing evidence or
even by a preponderance of the evidence.   State v. Edwards, 787 So. 2d 981, 990-91 (La. 2001).
The government must only prove that there was probable cause to believe that the property was
used in connection with a crime.   This burden of proof is made possible by the legal fiction that
the property itself is guilty.  See United States v. Ursery, 518 U.S. 267, 275 (1996).
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Fleet, 498 F.3d 1225, 1231 (11th Cir. 2007).  In a criminal forfeiture, the only property subject to
forfeiture is that which belongs to the criminal defendant.  Id. at 1232.
We now turn to the state of the law regarding this issue at the time the Idaho Constitution
was adopted.   Initially, we note that a review of Idaho‟s territorial statutes at the time did not
reveal any provisions applicable to criminal forfeitures.   Such a dearth is not surprising given
that the use of criminal forfeiture had fallen out of favor at this time.   While rooted in English
law and adopted briefly by the American colonies prior to formation of the United States,
following the ratification of the United States Constitution the use of criminal forfeiture “quickly
went out of style” and in short order the First Congress, as well as several states, banned the use
of in personam forfeiture and other predicates of the modern criminal forfeiture.   Matthew R.
Ford, Criminal Forfeiture and the Sixth Amendment’s Right to Jury Trial Post-Booker,  101
NW.U.L.REV. 1371, 1402-03 (2007).   See also United States v. Bajakajian, 524 U.S. 321, 332
n.7 (1998) (“The First Congress explicitly rejected in personam forfeitures as punishments for
federal crimes  .  .  . and Congress reenacted this ban several times over the course of two
centuries.”) (internal citations omitted).   According to one commentator, American legislatures
“effectively laid criminal forfeiture to rest for the next two centuries.”   Ford, supra at 1403.7
Even Great Britain abolished the use of common law (in personam) forfeiture in 1869.   Eric R.
Markus, Procedural Implications of Forfeiture Under RICO, the CCE, and the Comprehensive
Forfeiture Act of 1984: Reforming the Trial Structure, 59 TEMP. L.Q. 1097, 1104-05 (1986)
(noting that because it was abolished so long ago, “[n]o opportunity existed for the doctrine and
procedures implementing it to evolve and to keep pace with modern notions of due process of
law,” such that the “British experience . . . provides no guidance as to how a RICO or CCE
forfeiture trial should proceed”).
It was only in  1970 that Congress resurrected the English common law of punitive
forfeiture to combat organized crime and major drug trafficking.  Bajakajian, 524 U.S. at 332 n.7
(citing Organized Crime Control Act of 1970, 18 U.S.C. § 1963 [which established, among other
things, RICO provisions] and Comprehensive Drug Abuse Prevention and Control Act of 1970,
7                                                                                                      In the absence of criminal forfeiture, the use of in rem forfeiture came to predominate
American forfeiture law as the use of statutorily imposed forfeiture predicated on the “in rem
fiction” developed expansively.  Ford, supra at 1403.
12




21 U.S.C. § 848(a)).   In providing for this mode of punishment, which had long been unused in
this  country,  the  Senate  Judiciary Committee  acknowledged  that                                       “criminal  forfeiture
represents an innovative attempt to call on our common law heritage to meet an essentially
modern problem.”  Bajakajian, 524 U.S. at 332 n.7 (citing S. Rep. No. 91-617, p. 79 (1969)).8
Thus, in  1890, neither  federal  law  nor the common law in  Britain recognized the
continued use of criminal forfeiture.   However, the general common law approach to the use of
juries in criminal forfeiture prior to abandonment of criminal forfeiture is instructive to our
inquiry.   On appeal, Key argues that there was a “right to jury trial in statutory forfeiture actions
at common law.”   Specifically, she cites to Idaho Dep’t of Law Enforcement v. Free, 126 Idaho
422, 427, 885 P.2d 381, 386 (1994), wherein the Idaho Supreme Court held that to the extent that
Idaho‟s civil forfeiture statute did not provide for a jury trial, it was unconstitutional, based on its
finding that it was “uncontroverted that forfeitures existed, and were afforded a jury trial, under
English and American practice.”   However, Free clearly was decided in the context of civil
forfeitures which, as we discussed above, are distinct proceedings from those involving criminal
forfeitures  (where an underlying criminal conviction is required) and have historically been
afforded different  standards of proof  and different  trial procedures.    Thus, that the  Idaho
Supreme Court found a state constitutional right to jury trial in civil forfeiture proceedings is not
dispositive of the issue here.
We thus turn to an inquiry into the common law as it applied to criminal forfeitures.  The
Advisory Committee Notes accompanying the 1972 amendment to former FED. R. CRIM. P. 7,
cited in numerous federal court opinions, stated that “[u]nder the common law, in a criminal
forfeiture proceeding, the defendant was apparently entitled to notice, trial, and a special jury
8                                                                                                          The  federal  rule  of  criminal  procedure  initially  applicable  to  criminal  forfeiture
proceedings, provided for a jury determination “as to the extent of the interest of property subject
to forfeiture, if any.”    Seifuddin,  820 F.2d at  1078  (citing former FED.  R.  CRIM.  P.  31(e)).
Currently, despite the Supreme Court‟s holding that criminal forfeiture is an aspect of sentencing
that does not constitutionally require a jury trial (see above), FED. R. CRIM. P. 32.2 allows either
party to  request  an  initial  jury determination  that  the  allegedly forfeitable  property has  a
sufficient                                                                                                 “nexus” to the defendant‟s crime to be forfeitable.    However, the jury does not
determine the extent of the defendant‟s property interest in the forfeitable property.   Advisory
Committee Notes, 2000 Adoption, Subdivision (b) (citing 21 U.S.C.A. Sec. 853(n)(2)) (“court
alone, without a jury” decides whether the defendant had an interest in the property to be
forfeited.).   Rather, the court decides at an ancillary proceeding the extent of third parties‟
interests in the forfeited property.
13




finding  on  the  factual issues  surrounding  the  declaration  of  forfeiture  which  followed  his
criminal conviction.”  Several commentators, however, have noted that the advisory committee‟s
reliance on common law tradition in regard to the right to a jury determination of the property to
be forfeited is “misplaced.”   Note, A Proposal to Reform Criminal Forfeiture Under RICO and
CCE, 97 HARV. L. REV. 1929, 1937 (1984).   See also Ford, supra at 1402.   As the author states
in A Proposal to Reform Criminal Forfeiture:
Although it is true that at common law the jury customarily reported the size of
the defendant‟s holdings after announcing the verdict in a felony case, this jury
report was simply one of a number of bookkeeping devices used to facilitate
collection  of  the  forfeiture  penalty.    Under  the  common  law  rule,  all  the
offender‟s property was forfeited; the jury had no legal power to protect the
defendant against an excessive forfeiture.   Furthermore, the drafters of the federal
forfeiture  rules  overlooked  the  fact  that  the  first  Congress  had  rejected  the
common law approach partly because it failed to treat forfeiture as a discretionary
part of sentencing to be applied by judges.
Note, supra at 1937-38 (citations omitted) (emphasis added).   See also Ford, supra at 1402
(noting that despite the need for a jury, its role was limited as it only convicted the offender,
because all of the offender‟s property was forfeited after a felony conviction and therefore the
jury could not govern the scope of the forfeiture).
Based  on  the  foregoing  analysis--most  specifically the  fact  that  Idaho  courts  have
repeatedly stated that Article 1, § 7 preserves the right to jury trial as it existed at the common
law and under the territorial statutes when the Idaho Constitution was adopted, we conclude that
the Idaho Constitution does not require a defendant be afforded the right to a jury trial in
criminal forfeiture proceedings.   As we described above, criminal forfeiture had fallen out of
favor and did not exist in the federal law or in English common law at the time the Idaho
Constitution was adopted, and so, to the extent that the Idaho Framers intended that Article 1, § 7
retain the right to jury trial as it existed at the time, the right to a jury trial in criminal forfeiture
proceedings would not be included.   Thus, we cannot say that the Idaho legislature ran afoul of
the Idaho Constitution by choosing to exclude juries from criminal forfeiture proceedings.9
9                                                                                                            The North Carolina Court of Appeals reached a similar conclusion in State v. Morris, 405
S.E.2d 351 (N.C. Ct. App. 1991).   There, the court examined whether a defendant whose vehicle
was subjected to a drug-related criminal forfeiture under the state‟s criminal forfeiture statute
(whose plain language implies that a judge is to make forfeiture determinations) had a right to a
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B.                                                                                                       Use of Vehicle in Facilitation of Offense
Key argues that the district court abused its discretion in determining that her vehicle was
used to commit or facilitate the offense of possession of marijuana, and therefore, it was an abuse
of discretion to grant the state‟s motion for forfeiture of her vehicle.
In pertinent part, I.C. § 37-2801(2) provides that:
Any person who is found guilty of, who enters a plea of guilty, or who is
convicted of a violation of the uniform controlled substances act . . . punishable
by imprisonment for more than one (1) year, no matter the form of the judgment
or order withholding judgment, shall forfeit to the state of Idaho:
(2) Any of the person‟s property used, or intended to be used, in any
manner or part, to commit, or to facilitate the commission of such violation.
The propriety of the forfeiture of Key‟s vehicle turns upon the language of section 37-
2801(2), which authorizes forfeiture only of property that was used or intended to be used to
commit or facilitate “the commission of such violation.”   In context, the words “such violation”
plainly refer to the specific violation of which a defendant has been found guilty.   In this respect,
section 37-2801(2), which is a criminal forfeiture statute, differs significantly from the civil
forfeiture provision within the Uniform Controlled Substances Act, I.C. § 37-2744.   The latter
statute  authorizes  forfeiture  of,  among  other  things,                                              “[a]ll  conveyances,  including  aircraft,
vehicles, or vessels, which are used or intended for use, to transport, or in any manner to
facilitate the transportation, delivery, receipt, possession or concealment, for the purpose of
distribution or receipt of” controlled substances that have been possessed or distributed in
violation of the U.C.S.A., I.C. § 37-2744(4).   Unlike the civil forfeiture statute, section 37-
2801(2) limits criminal forfeiture to property that facilitated the crime for which the defendant
jury trial as to the forfeiture.   North Carolina courts have held, similar to Idaho courts, that the
right to a trial by jury applies only to cases in which the right existed at common law or was
procured by statute at the time the Constitution was adopted (in their case, 1868).  The court then
went on to note that legislation providing for the forfeiture of conveyances used to facilitate the
violation of alcohol control laws was first enacted in 1915, noting (without much discussion) that
the right to jury trial in this instance was procured by statute and did not exist at the common law
or under any statute in 1868 and therefore the court held that no such right currently exists.
15




has been convicted.   See State v. Stevens, 139 Idaho 670, 675, 84 P.3d 1038, 1043 (Ct. App.
2004).
Both Key and the state cite to Stevens in support of their respective positions.   There,
officers had been conducting surveillance at a residence where they knew methamphetamine was
being sold.   They were told by an informant that Stevens was dealing methamphetamine and had
been purchasing two or three ounces of it at the residence every two to three days.   Officers also
knew that Stevens had been the subject of several prior narcotics investigations.   Several days
after the informant described Stevens‟ actions, the surveilling detective saw Stevens arrive at the
residence on a motorcycle.   While the detective could not see the front door, he stated that
Stevens appeared to be pulling his wallet out of his back pocket as he started toward the door and
after being out of view for three to five minutes, he reappeared and left on his motorcycle.  Based
on the belief that Stevens had just purchased drugs, the detective stopped Stevens, who admitted
that he had in his possession a vial of methamphetamine, which he handed to the detective.   He
was arrested and during a search of his person, police found additional methamphetamine, $936
in cash, and apparent drug ledgers.   Based on this evidence, officers obtained a warrant to search
Stevens‟ residence where they found additional methamphetamine, paraphernalia, and cash.
Stevens was charged with trafficking in 28 grams or more of methamphetamine and the
state requested criminal forfeiture of his motorcycle and over $9,000 in cash found during the
searches.   Stevens entered a conditional guilty plea to the charge and after a hearing, the district
court forfeited the motorcycle.   In doing so, the court concluded that Stevens had gone to the
residence for the purpose of obtaining the methamphetamine, that his travel to the residence for
that purpose was facilitated by his motorcycle, and that while it did “not appear that Stevens
actually obtained methamphetamine on that date,” his intention to do so brought the motorcycle
within the class of property subject to criminal forfeiture.
In reversing the district court‟s forfeiture of the motorcycle, this Court first noted that
Stevens had been convicted of possession with intent to deliver the particular methamphetamine
found in his clothing and at his home and therefore, the state‟s burden was to prove that the
motorcycle had been used to facilitate the possession of those drugs.  We noted:
The requisite relationship between the motorcycle and the offense would have
been established if the State had proven that at least part of the drugs he was
carrying were acquired during his visit to the residence after having driven there
on his motorcycle.   The district court found, however, that although Stevens rode
16




his motorcycle to the residence for the purpose of purchasing methamphetamine,
the evidence was insufficient to show that he actually made a purchase at that
time.
Stevens, 139 Idaho at 675, 84 P.3d at 1043.
We then noted:
In its memorandum decision ordering the forfeiture, the district court
relied heavily upon federal court decisions holding that even a slight  nexus
between a vehicle and an actual or attempted acquisition or distribution of drugs
will suffice to justify a vehicle forfeiture.  In general, however, these federal cases
involved civil forfeiture proceedings under 21 U.S.C. § 881, which resembles I.C.
§ 37-2744(4) in that it does not limit forfeitures to property connected with the
specific offense for which a defendant has been convicted.   In the present case,
the prosecutor elected to proceed with a criminal forfeiture under I.C.  §  37-
2801(2)  rather  than  a  civil  forfeiture  under  I.C.                                               §  37-2744(4),  and  thereby
assumed the more difficult burden to prove a relationship between Stevens‟
motorcycle  and  the  specific  offense  of  which  he  was  convicted.    Had  the
prosecutor pursued civil forfeiture, the federal cases upon which the district court
relied would be persuasive and the results of this appeal likely would be different.
Id.  Finally, we concluded:
As the district court found, the evidence presented by the State does not
show that Stevens used his motorcycle to acquire the methamphetamine found in
his clothing and at his home.   The State does not argue to the contrary on appeal.
No drugs were found in the motorcycle itself, and there was no evidence that
Stevens had previously used the motorcycle to obtain the drugs he possessed
when arrested or that he was using his motorcycle to deliver the drugs in his
possession to another.  The motorcycle therefore cannot be said to have facilitated
the offense for which Stevens was convicted in this case.
Id. at 675-76, 84 P.3d at 1043-44.
In the instant case, the district court, citing Stevens, held that the fact that the drugs Key
was convicted of possessing were found in a backpack taken from the passenger compartment of
the vehicle is “adequate to meet the State‟s burden to prove a relationship between the vehicle
and the marijuana possessed.”   On appeal, Key argues that the Stevens court indicated that “to
establish the required nexus under I.C. § 37-2801, the vehicle must be somehow used in order to
purchase or otherwise acquire, and therefore come into possession of, the drugs that are the
subject of the defendant‟s crime.”   Thus, she contends that the requisite relationship between
Key‟s car and the underlying offense was not established because there was no evidence in the
record that Key used the vehicle in order to acquire the drugs, thereby facilitating her possession.
17




Noting the state‟s                                                                                      “sole” argument advanced below, that the car was used as a means  of
transporting the drugs, thereby facilitating their possession, Key argues that this is “merely an
allegation of [a] fleeting and incidental relationship between Ms. Key‟s possession of the drugs
and the vehicle itself” and that the state, therefore, did not carry its burden to “establish the
required relationship of a direct and substantial connection between Ms. Key‟s car and her
offense of possession of marijuana in excess of three ounces.”
Contrary to Key‟s assertions, the holding of Stevens is not that there must be proof that a
vehicle was utilized to acquire drugs in order for it to be forfeitable for a possession conviction,
but that there must be some connection between the drugs and the vehicle.   In Stevens, we
specifically noted that the drugs had not been found in the motorcycle itself and thus looked to
other possible connections between the drugs and the vehicle, finding none.   By contrast in this
case, the drugs were found in the vehicle itself, thus resulting in the requisite connection between
the drugs and the vehicle.  In addition, we note that in this case, the drugs were found in a gallon-
size freezer bag in a relatively larger quantity than would normally be found on the person of a
defendant--such as the vial of methamphetamine that was found in Stevens‟ jacket.    Thus,
utilization  of  the  passenger  compartment  of  the  vehicle  was  useful  as  Key‟s  means  of
“possession” of the drugs.   It is also relevant to note that Key‟s placement of the drugs in the
vehicle “facilitated” her possession of them to the extent that the vehicle allowed her to keep the
drugs with her wherever she traveled.  We therefore conclude that the district court did not abuse
its discretion in granting the state‟s request for criminal forfeiture after having found the vehicle
was used to facilitate the crime for which Key was convicted.
C.                                                                                                      Proportionality
Key also argues that the district erred in failing to make a determination whether,
pursuant to I.C. § 37-2809, the “size” of the property forfeited was unfairly disproportionate to
the  size  of  the  property  actually  used  in  the  commission  of  Key‟s  underlying  offense.
Specifically, she contends that  “[b]y statute, the size of the property that the State may be
permitted to take in a forfeiture action is limited to the extent to which that property constituted
an instrumentality of the offense” and argues that I.C. § 37-2809 codified the “instrumentalities
test” under which the proportionality of forfeitures is fixed “not by determining the appropriate
value of the penalty in relation to the committed offense, but by determining what property has
been „tainted‟ by unlawful use.”  Here, she argues, there has been no determination of how much
18




of Key‟s vehicle was “actually used” in commission of the underlying offense and that “[g]iven
the very limited scope of relation or nexus between Ms. Key‟s car and her underlying offense of
possession of marijuana, the permanent forfeiture of her car was an unfairly disproportionate
forfeiture.”
In reviewing the trial court‟s forfeiture decision, we defer to a trial court‟s factual
findings where they are supported by substantial and competent evidence, Stevens, 139 Idaho at
674-75, 84 P.3d at 1042-43; State v. Lewis, 126 Idaho 282, 285, 882 P.2d 449, 452 (Ct. App.
1994), but we exercise free review on questions of statutory construction, Stevens, 139 Idaho at
675, 84 P.3d at 1043; State v. Beard, 135 Idaho 641, 646, 22 P.3d 116, 121 (Ct. App. 2001);
State v. Evans, 134 Idaho 560, 563, 6 P.3d 416, 419 (Ct. App. 2000).   Where the language of a
statute is plain and unambiguous, this Court must give effect to the statute as written, without
engaging in statutory construction.   State v. Rhode, 133 Idaho 459, 462, 988 P.2d 685, 688
(1999); State v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219 (1999); Stevens, 139 Idaho at
675, 84 P.3d at 1043; State v. Escobar, 134 Idaho 387, 389, 3 P.3d 65, 67 (Ct. App. 2000).
Idaho Code § 37-2809 provides that:
In issuing any order under the provisions of this chapter, the court shall make a
determination that the property, or a portion thereof in the case of real property,
was actually used in violation of the provisions of this chapter.   The size of the
property forfeited shall not be unfairly disproportionate to the size of the property
actually used in violation of the provisions of this chapter.
Idaho courts have not yet spoken to the application of I.C. § 37-2809, and thus we are
faced with an issue of first impression.   To the extent that Key argues that the “size” of the
vehicle was “unfairly disproportionate” to the “size” of the property actually used in commission
of the offense, we disagree.   As the state points out, we are not faced with an issue here of, for
example, a small portion of a large tract of land being utilized in the commission of a controlled
substance offense.   Here, the vehicle as a whole was utilized to facilitate Key‟s possession of the
relatively large amount of marijuana.   To the extent that “size” refers to value, we note that the
parties stipulated that Key‟s vehicle was worth $1,500 and the total street value of the marijuana
19




found in the vehicle was, according to the testimony of an officer, approximately $1,000-$1,300.
Therefore, there is no disproportionality in value.10
In addition, Key‟s argument that because the drugs bore only a “tangential and fleeting
relationship” to the vehicle, permanent forfeiture of her vehicle was unfairly disproportionate, is
not supported by Idaho‟s criminal forfeiture statutory scheme.  The plain language of the statutes
focuses on the size of the property--any other considerations concerning the nature of the drugs‟
relationship to the forfeitable property is thus irrelevant to the proportionality inquiry contained
in I.C. § 37-2809.   We conclude that the size of the property forfeited in this instance was not
unfairly disproportionate to the size of the property utilized in Key‟s commission of possession
of marijuana and therefore, the district court did not err in this respect in ordering forfeiture of
the vehicle.
D.                                                                                                      Excessive Fine
Key contends that the district court‟s order forfeiting her vehicle violated the Eighth
Amendment prohibition against excessive fines.   However, there is no indication in the record,
nor does Key argue, that she raised the issue before the district court.  In State v. Ross, 129 Idaho
380,                                                                                                    381,                                                                                  924  P.2d  1224,  1225  (1996),  the  Idaho  Supreme  Court  refused  to  address  the
appellant‟s excessive fines argument where it had not been raised before the district court
because “excessive fine would not constitute fundamental error.”   Bound by the holding in Ross,
we do not address Key‟s excessive fines issue for the first time on appeal.
III.
CONCLUSION
While we conclude that Key‟s constitutional challenges to the denial of a jury trial in her
criminal forfeiture proceeding could be raised for the first time on appeal under the fundamental
error doctrine, we also conclude that neither the United States Constitution nor the Idaho
10                                                                                                      We do note that while the circumstances here allow for a relatively straightforward
conclusion that the “size” of the forfeiture was not disproportionate given the relatively low
value of the car, it is not difficult to imagine a situation where such a conclusion would not come
as easily.   For instance, the issue would be troublesome if 5.23 ounces had been found in a
person‟s luggage contained within that person‟s Lear jet or within a party‟s large recreational
vehicle.   In this manner, I.C. § 37-2809 proves inadequate to provide guidance in that it is
unclear as to what is meant by  “size.”    A clearer statutory framework would refer to, for
example, the “value” of the forfeited property if that is the legislative intent.
20




Constitution requires that defendants be afforded the right to a jury trial in criminal forfeiture
proceedings.   We conclude that the district court did not err in finding that Key‟s vehicle had
been used to facilitate her possession offense such that it was subject to criminal forfeiture.
Finally, we also reject Key‟s claim that the forfeiture violated I.C. § 37-2809 because it was
disproportionate to the “size” of the property actually utilized in the commission of the offense,
and we will not review Key‟s assertion that the forfeiture constituted an excessive fine under the
Eighth Amendment because she did not raise the issue below.   Accordingly, the order of the
district court forfeiting Key‟s vehicle is affirmed.
Chief Judge LANSING and Judge MELANSON, CONCUR.
21

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