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Civil Forfeiture and Criminal Prosecution as Double Jeopardy

They did it. That's right- your Government did it. Having been warned by their lawyers of the constitutional defects (and inherent unfairness) in their policy of impoverishing a drug defendant through civil forfeiture, then prosecuting him or her with a criminal indictment for the same conduct they went ahead and did it anyway. The result of this unusually stubborn act of overreaching is a legacy of at least six years of convictions and forfeitures that may be subject to attack.

The troubles for the Government started with United States v. Halper, 490 U.S. 435 (1989), which ruled that: "[A] civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can be explained only as also serving either retributive or deterrent purposes is punishment, as we have come to understand the term...." Meaning: where the Government brings a civil forfeiture and a criminal prosecution based upon the same conduct in separate proceedings, the Government subjects the defendant to a violation of the prohibition against double jeopardy. In these few words the Supreme Court potentially put a choke chain on a runaway government practice described by one pundit as the conduct of "children without adult supervision."

After Halper, U.S. v. McCaslin, 863 F. Supp. 1299 (WD WA 1994) and U.S. v. $405K, 33 F.3d 1210 (9th Cir.1994), as amended 5/30/95, took the lead in attempting to curb the Government's greed. Duane McCaslin was the first to challenge the double proceedings policy. He was arrested in 1990 for growing pot at home. The Government first sought to forfeit his home. Hoping that we understood the writing between the lines in Halper, we settled the forfeiture and waited for the Government's next move. When McCaslin was indicted, we moved to dismiss the charges, arguing that under Halper, a sanction which is not solely remedial is punishment for purposes of double jeopardy, and that the forfeiture of his home was, at least in part, a punishment prohibiting further punishment. The Government could not we argued, get two bites at the apple when the apple is a defendant charged with a crime. Such a defendant has a constitutional right to settle his beef with society once and for all, in a single proceeding.

The U.S. Attorney laughed. No, it was more of a snicker. The trial court and the Court of Appeals for the Ninth Circuit slam dunked us, summarily dismissing the arguments that to us, at least, seemed so inescapable. McCaslin went to prison, though not for the five years the Government wanted. After listening to a commercial plant propagation expert who came to court with earth under his fingernails and pants with built-in knee pads, the court concluded that less than half of McCaslin's sickly little crop would mature into adult plants. At less than 100 plants, the guidelines gave him a sentence of 15 months.

Then the Supreme Court decided Austin v. United States, 113 S.Ct. 2801 (1993), stopping just one step short of accepting the rule we had argued in McCaslin. Forfeitures, the court ruled are punishment. Yes!!

Steinborn & Assoc. brought McCaslin back before the same trial judge under 28 U.S.C. §2255. The Department of Justice sent a lawyer from Washington, D.C. to Seattle to battle the stubborn lawyers who wouldn't go away. On September 2, 1994, after commenting at oral argument that the issue was "momentous," United States District Court Judge William Dwyer reversed himself and vacated McCaslin's conviction. One week later, in a case handled entirely by prisoner third-year law student Michael Montalvo (and, contrary to some rumors, without the help of any lawyers), the Court of Appeals for the Ninth Circuit followed suit. In U.S. v. $405k (a civil case), the court ruled that they had been wrong in McCaslin, and that forfeiture - not just of property used to facilitate a crime, but also of property which was the proceeds of crime - was punishment for purposes of double jeopardy. On May 30, 1995, commenting only that their decision was "compelled" by Supreme Court authority, the Ninth Circuit refused to reconsider its earlier opinion. As of this writing the mandate in $405k is stayed until September 6, 1995, so the Government can decide whether it wants to take the case to the Supreme Court where it might become the law of the land, or leave it as final and fight the battle in other circuits with cases with better facts.

What do these cases mean? If the law stays as it is, and if the law from the Ninth Circuit spreads to the other circuits, many victims of the Government's failed war on drugs may have a chance for some relief. (The Government claims it has prepared a list of persons around the country who might be these victims, but they aren't giving it up. This may be the meat for a class-action lawsuit.) Here are the basics:

If you:

1. Had property taken and also were prosecuted criminally;

2. By the same sovereign (state and federal Governments are generally separate sovereigns, not limited by double jeopardy);

3. For the same conduct;

4. In separate proceedings, you may be a victim of a double jeopardy violation. If so, whichever punishment came second is void.

The analysis is complex and getting more so as the Government, caught with its pants down at first, begins to learn how to respond to the avalanche of § 2255 and state habeas corpus petitions these two West Coast cases have started.

Here is an outline of the Government's latest "defenses" (that word seems strange when applied to the Government, doesn't it?)

1. The courts didn't really mean what they said in Halper, Austin, McCaslin and $405k.

We like his argument. It is so clearly wrong that, like the thirteenth stroke of the clock, it casts doubt on all which precedes it.

2. It's not double jeopardy because the state did the prosecution, while the Feds took the property. This argument, too, has a vulnerable spot. Every time the feds take property, they share it with the local agencies who participated in the seizure. You can imagine the kinds of self-serving documents filed by greedy local police agencies in an attempt to get part of the loot. Their pleadings become our evidence of "agency" between the otherwise separate sovereigns. This is the Achilles heel that we hope will defeat the Government's separate sovereigns argument.

Recent case law, United States v. Real Property Located In El Dorado County at 6380 Little Canyon Rd., __F.3d__, (9th Cir. 7/12/95), holds, without analysis, that the fact that a state agency may share in the proceeds of a federal forfeiture does not make the Feds agents of the state for purposes of defeating the "dual sovereignty" defense. The superficial analysis in this case invites further litigation aimed at showing that requests by the state to share in the loot are never denied, and that there is, therefore, a de facto agency between the Feds and the local agencies.

3. It's not the same conduct. This is a complex issue. While the Supreme Court has used the words "same conduct" repeatedly, the government is arguing, and some courts are agreeing, that the more restrictive test called the "same elements" test must be applied. This means, for example, that the government could prosecute criminally for the charge of conspiracy, while forfeiting property for the underlying substantive crimes and overt acts without violating double jeopardy. If the Court accepts this argument the reach of these new cases will be limited. This argument has dangers for the government as it is inherently unfair: should the Government be allowed to punish a person twice for the same acts simply by focusing on the individual acts in one proceeding and then lumping them together in another? U.S. v. Felix, 112 S.Ct. 1377, (1992), seems to say yes, but the inherent unfairness of this procedure seems so self-evident that it may well be that the best way to meet it is to let the Government once more overstep until even our timid courts can't stand it.

4. They aren't really separate proceedings. This argument worked once, in United States v. Millan, 2 F.3d 17 (2nd Cir.1993), which held that a civil forfeiture and a criminal prosecution, though filed and tried separately, are merely a "single coordinated proceeding." Most other courts that have reached this issue have rejected this argument, and even Millan seems to have been forgotten by the court that decided it. See, United States v. $445,139.00, 18 F.3d 73 (2nd Cir 1994). This is another one of those government arguments which, if allowed to proceed to its logical conclusion, would yield such harsh and unfair results that it may be its own worst enemy.

Relevant here is United States v. Ursery, (6th Cir. 7/13/95), a defense victory. Ursery rejects the Government's arguments that settlement of the civil forfeiture constitutes waiver of the double jeopardy protection, that forfeiture and the criminal prosecution can never be the same conduct, that parallel proceedings are not separate, and, agreeing with $405k, holds that forfeitures under 21 U.S.C. § 881(a)(7) are categorically punishment. Current rumors have it that the government will seek to join Ursery and $405k in a petition for certiorari to the United States Supreme Court.

5. The defendant has no standing because s/he didn't contest the forfeiture by filing a claim. This argument, based on United States v. Torres, 28 F.3d 1463 (7th Cir 1994), presents a complex issue. Recent case law in a district court of the Ninth Circuit (United States v. Pius Aileman) meets it squarely and well: You are punished if your property is taken. You don't have to engage in an arguably frivolous defense of your property, jeopardizing your Fifth Amendment right to remain silent in order to have been punished by the loss.

Unfortunately, the 9th Circuit just spoke on this issue. United States v. Cretacci, (9th Cir. August 4, 1995) rules that the failure to file a claim is fatal to a double jeopardy defense. This decision will prevent relief in a large number of cases. Its clearly erroneous holding that one "abandons" property by failing to file a claim for it flies in the face of the excellent logic of Aileman, ignores the reality that many defendants are caught between loss of their property and self-incrimination, and encourages courts around the country to take the easy way out. This holding will be strenuously opposed by Cretacci, and by others who have similar claims pending. Like McCaslin, it may take some courageous work by the Supreme Court to set this one straight.

So too, in the third circuit. United States v. Baird, (3d Cir. 8/11/95) holds that administrative forfeiture where no claim is filed does not constitute punishment. Like Cretacci, this holding makes no sense, and will be strenuously opposed. Circuit Judge Sarokin filed a dissent, arguing that "double jeopardy can arise following a forfeiture even where defendant has not participated in the forfeiture proceeding, if the defendant can establish that he was the owner of the forfeited property and that such forfeiture constituted punishment."

6. The defendants waived the double jeopardy issue by pleading guilty or settling the forfeiture action. Our opposition to his issue, while somewhat complex, has been successful.

Although a plea waives most factual objections, a double jeopardy argument that can be made from the existing record (mostly documents generated by the Government) is not waived by a plea. Settlement of a forfeiture waives nothing that is not specifically waived. Relevant here is United States v. Wong, (9th Cir. August 10, 1995), which holds that a prior administrative forfeiture which was abandoned by the government was not an attempt to punish, and, therefore, did not implicate double jeopardy. Along the way Wong adopts the argument that a guilty plea does not waive double jeopardy.

7. The remedy is not retroactive. This argument has been uniformly rejected. McCaslin observed that our double jeopardy attack on the Government's overreaching was merely the application of an old rule to new facts. Accordingly, this rule should apply to all cases. Certainly it must apply to cases as far back as 1989, when the Court announced the Halper decision.

This summary, I admit is only a teaser. For a more detailed discussion I recommend our book entitled FORFEITURE AND DOUBLE JEOPARDY: HOW TO TURN PROSECUTORIAL OVERREACHING INTO RELEASE OF PRISONERS AND RETURN OF SEIZED PROPERTY. Written by attorneys Reba Weis, Brenda Grantland and Jeffrey Steinborn. It is available from F.E.A.R. Foundation, 265 Miller Avenue, Mill Valley, CA. 94941, (415) 388-8128. A second edition, incorporating new cases and developing new arguments, written and edited by the team which is now preparing to defend $405k if it reaches the Supreme court, (Brenda Grantland, Jeffrey Steinborn, Jeffry Finer, Shawn Perez, and prisoner law student Michael Montalvo), will be available soon from the same source.

The future of the double jeopardy defense is unclear. While some courts bravely accept what seems compelled by Supreme Court precedents others exercise "peremptory ducks" by clinging to transparently defective legal theories. Others, having discovered the easiest way to deny relief to a defendant, simply misrepresent and ignore the factual record before them. Is the judicial branch tough enough to hold the Government accountable? Is the government wise enough and fair enough to accept the lesson?

I read Harley Davidson, wants to copyright the word "Hog." Will they get all uses of the word, or will law enforcement forfeiture departments claim a common law right to the verb? (As in "let's go hog this sucker.") It all depends on the courts. Place your bets.

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