                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-11-1995

United States v Baird
Precedential or Non-Precedential:

Docket 95-1202




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995

Recommended Citation
"United States v Baird" (1995). 1995 Decisions. Paper 217.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/217


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1995 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                              ___________

                              No. 95-1202
                              ___________


          UNITED STATES OF AMERICA


                            vs.

          FRANK L. BAIRD,

                                     Appellant.


                              ___________


          APPEAL FROM THE UNITED STATES DISTRICT COURT
            FOR THE EASTERN DISTRICT OF PENNSYLVANIA

                 (D.C. Criminal No. 94-cr-00215)

                              ___________


                       ARGUED MAY 18, 1995

       BEFORE:   COWEN, LEWIS and SAROKIN, Circuit Judges.

                     (Filed       August 11, 1995)

                              ___________


Richard S. Wasserbly (ARGUED)
100 East Court Street
Doylestown, PA 18901

Stuart M. Wilder (ARGUED)
Pratt, Brett, Thome & Lyons
69 East Court Street
Doylestown, PA 18901

          Attorneys for Appellant


                                     1
Walter S. Batty, Jr. (ARGUED)
Sonia C. Jaipaul (ARGUED)
Joseph T. Labrum, III
Office of the United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106

          Attorneys for Appellee


                            ___________

                        OPINION OF THE COURT
                            ___________



LEWIS, Circuit Judge.

          In this appeal, the appellant, Frank L. Baird

("Baird"), seeks dismissal on double jeopardy grounds of a

superseding indictment charging him with violations of federal

criminal law.    He argues that as a result of a prior

administrative forfeiture of monies seized from his residence, he

has already been once "punished" for the offenses alleged in the

indictment.    A subsequent criminal prosecution would, he argues,

run afoul of the Double Jeopardy Clause.

          To assess the merits of Baird's unusual double jeopardy

argument, we must determine whether Baird was "punished" as a

result of the administrative forfeiture of money seized from his

residence.    We conclude that Baird was not "punished" by the

administrative forfeiture of seized money never determined to be

his.   Moreover, assuming, arguendo, that the forfeited money

belonged to Baird, we further conclude that the administrative



                                 2
forfeiture did not place Baird in a former jeopardy.    Therefore,

the pending prosecution of Baird for the offenses alleged in the

superseding indictment will not subject Baird to double jeopardy.

For these reasons, we will affirm the district court's denial of

Baird's motion to dismiss.

                 I.   Facts and Procedural History

          In April of 1994, law enforcement officials conducted a

search of Frank Baird's residence on the suspicion that he was

manufacturing and selling 3,4 methylenedioxy-methamphetamine

("Ecstacy").   The search of Baird's residence turned up an

elaborate clandestine Ecstacy-manufacturing operation, complete

with precursor chemicals, extensive laboratory apparatus, coded

formulas for the manufacture of the drug, and stock piles of

already manufactured Ecstacy.    In addition, $2,582 in United

States currency was found in the bedroom area of Baird's

residence.   This money was seized by law enforcement officials.

          In a superseding indictment returned in August of 1994,

Baird was charged with various drug and drug-related violations

of federal criminal law.0    Prior to the returning of this
0
      Baird was charged in Count 1 with conspiracy to manufacture
and distribute Ecstacy; in Count 2, with the manufacture of
approximately 20 kilograms of Ecstacy; in Count 3, with
possessing approximately 32 kilograms of Ecstacy with the intent
to distribute it within 1000 feet of the Baldwin School located
in Bryn Mawr, Pennsylvania; in Count 4, with possessing
approximately 32 kilograms of Ecstacy with the intent to
distribute it; in Count 5, with attempt to manufacture Ecstacy;
in Count 6, with attempt to manufacture amphetamine; in Count 7,
with creating a substantial risk of harm to human life while
manufacturing and attempting to manufacture Ecstacy; in Count 8,
with maintaining a place for the purpose of manufacturing
Ecstacy; and in Count 9, with carrying a firearm during and in
relation to a drug trafficking crime for which Baird could be

                                  3
indictment against him, however, the Drug Enforcement

Administration ("DEA") carried out the administrative forfeiture

of the $2,582 seized from Baird's residence.

          In February of 1995, Baird filed a pre-trial motion to

dismiss the superseding indictment on double jeopardy grounds.

The district court denied Baird's motion, finding under United

States v. Torres, 28 F.3d 1463 (7th Cir. 1994), and United States

v. Tilley, 18 F.3d 295 (5th Cir. 1994), that initial jeopardy did

not attach as a result of the administrative forfeiture of the

seized money.    This interlocutory appeal followed.   We have

stayed Baird's trial pending resolution of his appeal.

              II.   Jurisdiction and Standard of Review

          Subject matter jurisdiction of the district court is

based upon 18 U.S.C. § 3231.0    We have jurisdiction over Baird's

appeal under 28 U.S.C. § 12910 and the collateral order doctrine

announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S.

541 (1949).     See Witte v. United States, ___ U.S. ___, 115 S. Ct.

2199 (1995) (holding that a multiple punishments double jeopardy

prosecuted in a Court of the United States, that is, possession
of Ecstacy with the intent to distribute it, as charged in
Count 4.
0
      18 U.S.C. § 3231 provides:

               The district courts of the United States
          shall have original jurisdiction, exclusive
          of the courts of the States, of all offenses
          against the laws of the United States.
0
      28 U.S.C. § 1291 provides:

               The courts of appeals . . .   shall have
          jurisdiction of appeals from all   final
          decisions of the district courts   of the
          United States . . . except where   a direct
          review may be had in the Supreme   Court.

                                  4
claim is ripe for appellate review even where the claimant has

yet to have been a second time convicted).0    Our review of the

double jeopardy issue in this case is plenary.       See Epstein

Family Partnership v. Kmart Corp., 13 F.3d 762, 766 (3d Cir.

1994) (legal questions are subject to plenary appellate review).

                   III.   Double Jeopardy Analysis

          The Double Jeopardy Clause of the Fifth Amendment0 has

been said to protect against three distinct abuses:       a second

prosecution for the same offense after acquittal; a second

prosecution for the same offense after conviction; and multiple

punishments for the same offense.     See, e.g., North Carolina v.

Pearce, 395 U.S. 711, 717 (1969); Schiro v. Farley, 114 S. Ct.

783, 789 (1994).   "These protections stem from the underlying

premise that a defendant should not be twice tried or punished

for the same offense."    Schiro, 114 S. Ct. at 789.    According to

the parties, it is the third of these abuses -- multiple

punishments for the same offense -- which is of concern in this

appeal.

          The Supreme Court has stated that "the primary evil to

be guarded against [by the Double Jeopardy Clause] is successive
0
      The government has filed a motion to dismiss Baird's appeal
in which it argues that the right Baird asserts -- the right not
to be punished twice for the same offense -- can be fully
vindicated on appeal at the conclusion of Baird's trial, and that
we therefore lack jurisdiction under the collateral order
doctrine to hear Baird's appeal. In light of the recently
decided Witte v. United States, this argument is clearly
untenable. We will, therefore, deny the government's motion to
dismiss.
0
      The Double Jeopardy Clause provides: "[N]or shall any
person be subject for the same offense to be twice put in
jeopardy of life or limb . . . ." U.S. Const. Amdt. 5.


                                  5
prosecutions:     `[T]he prohibition against multiple trials is the

controlling constitutional principle.'"    Id. (citations omitted).

Nevertheless, the prohibition against multiple punishments for

the same offense has "deep roots in our history and our

jurisprudence."    United States v. Halper, 490 U.S. 435, 440

(1989).
            As early as 1641, the Colony of Massachusetts
            in its "Body of Liberties" stated: "No man
            shall be twise sentenced by Civill Justice
            for one and the same Crime, offence, or
            Trespasse." In drafting his initial version
            of what came to be our Double Jeopardy
            Clause, James Madison focused explicitly on
            the issue of multiple punishment: "No person
            shall be subject, except in cases of
            impeachment, to more than one punishment or
            one trial for the same offence." In our case
            law too, this Court, over a century ago,
            observed: "If there is anything settled in
            the jurisprudence of England and America, it
            is that no man can be twice lawfully punished
            for the same offence." Ex parte Lange, 18
            Wall 163, 168, 21 L.Ed. 872 (1874).

Id. (some citations omitted).

            In two recent unanimous decisions, the Supreme Court

gave the "no multiple punishments" rule a "breadth of effect it
had never before enjoyed."     See Montana Dept. of Rev. v. Kurth

Ranch, 114 S. Ct. 1937, 1957 (1994) (Scalia, J., dissenting).       In

the first of these, United States v. Halper, 490 U.S. 435 (1989),

the Court for the first time announced that civil penalties may,

in certain instances, constitute "punishment" for double jeopardy

purposes.   Halper, 490 U.S. at 448.   In the second, Austin v.

United States, 113 S. Ct. 2801 (1993), the Court relied upon

Halper to conclude that civil forfeitures undertaken pursuant to



                                  6
21 U.S.C. §§ 881(a)(4) and (a)(7)0 constitute "punishment" for

purposes of Eighth Amendment Excessive Fines Clause0 analysis.

Austin, 113 S. Ct. at 2812.   While Austin addressed the meaning

of "punishment" in a different context, we agree with the Court

of Appeals for the Ninth Circuit:   the "only fair reading of the

Court's decision in Austin is that it resolves the `punishment'

issue with respect to forfeiture cases for purposes of the Double

Jeopardy Clause as well as the Excessive Fines Clause."   United

States v. $405,089.23 United States Currency, 33 F.3d 1210, 1219

(9th Cir. 1994), opinion amended on denial of rehearing, ___ F.3d

____, 1995 WL 321826 (9th Cir. 1995); see also David Smith

Prosecution and Defense of Forfeiture Cases ¶ 12.10[2], at 12-131

0
      These statutes provide for the forfeiture of:

               (4) All conveyances, including
          aircraft, vehicles, or vessels, which are
          used, or are intended for use, to transport,
          or in any manner to facilitate the
          transportation, sale, receipt, possession, or
          concealment of [controlled substances, their
          raw materials, and equipment used in their
          manufacture and distribution]

                              . . . .

               (7) All real property, including any
          right, title, and interest (including any
          leasehold interest) in the whole of any lot
          or tract of land and any appurtenances or
          improvements, which is used, or intended to
          be used, in any manner or part, to commit, or
          to facilitate the commission of, a violation
          of this subchapter punishable by more than
          one year's imprisonment . . . .

21 U.S.C. §§ 881(a)(4), (7).
0
      The Eighth Amendment provides: "Excessive bail shall not
be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted." U.S. Const. Amdt. 8.

                                7
("The Supreme Court's decision in Austin v. United States, makes

it clear that Halper's double jeopardy protections do apply to

the vast majority of civil forfeiture cases.").

           According to Baird, together, Halper and Austin

establish that the administrative forfeiture of money under 21

U.S.C. § 881(a)(6)0 constitutes "punishment" for purposes of

double jeopardy analysis.   We do not think Halper and Austin go

so far.   While these precedents do suggest that the civil

forfeiture of money under 21 U.S.C. § 881(a)(6) is "punishment"

precluding the meting out of additional punishment for the "same

offence" by the "same sovereign" in a subsequent proceeding, see

$405,089.23 United States Currency, 33 F.3d at 1222 (holding that

civil forfeitures of drug proceeds under 21 U.S.C. § 881(a)(6)

constitute "punishment" under Halper and Austin); but see Tilley,

18 F.3d at 300 (holding that civil forfeitures of drug proceeds

do not constitute "punishment" for double jeopardy purposes),

Halper and Austin do not suggest, let alone establish, that

administrative forfeiture under 881(a)(6) amounts to "punishment"

relevant to the double jeopardy inquiry.   To understand the

critical distinction we are drawing between civil and
0
      21 U.S.C. § 881(a)(6) provides for the forfeiture of:

                All moneys, negotiable instruments,
           securities, or other things of value
           furnished or intended to be furnished by any
           person in exchange for a controlled substance
           in violation of this subchapter, all proceeds
           traceable to such an exchange, and all
           moneys, negotiable instruments, and
           securities used or intended to be used to
           facilitate any violation of this subchapter
           . . . .

                                8
administrative forfeiture, a brief discussion of the nature and

process of administrative forfeiture is in order.

          The purpose of administrative forfeiture is "to save

the government the time and expense of [a] judicial [forfeiture]

proceeding in cases where the value of the seized property [is]

small."   United States v. United States Currency Etc., 754 F.2d

208, 211 (7th Cir. 1985).0   In keeping with this purpose, Federal

civil forfeiture statutes allow certain statutorily defined

categories of property to be forfeited administratively, i.e.,

without the filing of a civil forfeiture action in federal

district court.   See David Smith Prosecution and Defense of

Forfeiture Cases ¶ 6.01, at 6-1.

          The administrative forfeiture procedure begins with the

seizing agency, in this case the DEA, publishing a notice of

seizure and intent to forfeit once a week for at least three

successive weeks in a newspaper of general circulation in the

judicial district in which the seizure occurred.      19 U.S.C.

§ 1607(a); 21 C.F.R. § 1316.75.       The agency is also statutorily

required to give personal written notice of the seizure and

information on the applicable procedure to any party who appears

to have an interest in the seized property.      19 U.S.C. § 1607(a).

A person may contest an administrative forfeiture, at any time

within twenty days of the first publication of the notice of

seizure, by filing a claim "stating his [or her] interest


0
      Under 19 U.S.C. § 1607(a), administrative forfeiture may be
undertaken to effect the forfeiture of as much as $500,000 in
United States currency.


                                  9
therein," and posting a cost bond of $5,000 or ten percent of the

value of the property, whichever is less, but not less than $250.

19 U.S.C. § 1608.   The proper and timely filing of a claim and

cost bond has the effect of stopping the administrative

forfeiture process, and forcing the seizing agency to refer the

matter to the United States Attorney for the district where the

property was seized for the institution of judicial forfeiture

proceedings in the ordinary mode prescribed by law.   19 U.S.C.

§§ 1603(b) and 1608; 21 C.F.R. § 1316.76(b).   Where no person

files a claim to the seized property within the statutory period,

the agency is authorized to declare the property forfeited.    19

U.S.C. § 1609(b); 21 C.F.R. § 1316.77.

          In sum, administrative forfeiture is a procedure

available to the government "only if the value of the property

seized is less than the jurisdictional amount and if no claim to

the property is filed within the twenty days after the date of

first publication of the notice of seizure."   United States

Currency Etc., 754 F.2d at 212 (emphasis in the original).

Significantly for our purposes, administrative forfeiture is only

appropriate in cases where the seized property in question goes

unclaimed.   Without overstating it, administrative forfeiture is,

in reality, a non-proceeding -- it is merely the consequence of
no one having come forward to claim the property seized or

contest its forfeitability.   With this introduction to

administrative forfeiture in mind, we turn now to determine the

merits of Baird's double jeopardy claim.




                                10
          Without adopting a position on the matter, we can

certainly understand how a court might conclude that civil

forfeiture under 21 U.S.C. § 881(a)(6) of drug proceeds

constitutes "punishment" for double jeopardy purposes.    See

$405,089.23 United States Currency, 33 F.3d at 1218-22.   However,

we cannot fathom how an administrative forfeiture, under section

881(a)(6), of unclaimed alleged drug proceeds could possibly be

held to constitute "punishment" in relation to an individual's

double jeopardy claim.   Any "punishment" resulting from the

administrative forfeiture of suspected drug proceeds is

punishment only in the abstract, wholly unattached to any

specific person, and thus cannot serve as the basis for a double

jeopardy claim.   This is because administrative forfeiture does

not, and, by its very definition, cannot, entail a determination

of ownership of the property to be forfeited.   All property

administratively forfeited is, as a matter of law, "ownerless"

property, and the taking of ownerless property "punishes" no one.

Because Baird never asserted an interest in the money that was

seized from his residence, he cannot now claim to have been

punished by its forfeiture.

          Even were we to assume, arguendo, that Baird was the

owner of the seized and forfeited money, we would nonetheless

affirm the district court's denial of Baird's motion to dismiss

because we do not agree that administrative forfeitures place in

jeopardy the person whose property is so forfeited.

          Succinctly stated, "[y]ou can't have double jeopardy

without a former jeopardy[;]" that is, to prevail on a double


                                11
jeopardy claim, former jeopardy must be shown to have attached.

United States v. Torres, 28 F.3d 1463 (7th Cir. 1994) (citing

Serfass v. United States, 420 U.S. 377, 389 (1975).    In essence,

Baird asks us to find that he was placed in jeopardy by the non-

judicial administrative forfeiture process undertaken in this

case.   In rejecting this argument, we are compelled to explain

what it means to be placed "in jeopardy."

          The Double Jeopardy Clause was "designed to protect an

individual from being subjected to the hazards of trial and

possible conviction more than once for an alleged offense." Green

v. United States, 355 U.S. 184, 187 (1957).
          The underlying idea, one that is deeply
          ingrained in at least the Anglo-American
          system of jurisprudence, is that the State
          with all its resources and power should not
          be allowed to make repeated attempts to
          convict an individual for an alleged offense,
          thereby subjecting him [or her] to
          embarrassment, expense and ordeal and
          compelling him [or her] to live in a
          continuing state of anxiety and insecurity,
          as well as enhancing the possibility that
          even though innocent he [or she] may be found
          guilty.


Id. at 187-88.   As an aid to the resolution of double jeopardy

claims, "courts have found it useful to define a point in

criminal [and, post-Halper, civil] proceedings at which the

constitutional purposes and policies [behind the Double Jeopardy

Clause] are implicated by resort to the concept of `attachment of

jeopardy.'"   Serfass, 420 U.S. at 388.   In the case of a jury

trial, for example, jeopardy is understood as attaching when the

jury is empaneled and sworn.   Id.   In the case of a non-jury



                                12
trial, jeopardy has been said to attach when the court begins to

hear evidence.   Id.   In any event, the Court has "consistently

adhered to the view that jeopardy does not attach, and the

constitutional [double jeopardy] prohibition can have no

application, until a defendant is `put to trial before the trier

of facts, whether the trier be a jury or a judge.'"     Serfass, 420

U.S. at 388 (emphasis supplied).
          Both the history of the Double Jeopardy
          Clause and its terms demonstrate that it does
          not come into play until a proceeding begins
          before a trier "having jurisdiction to try
          the question of the guilt or innocence of the
          accused." Without risk of a determination of
          guilt, jeopardy does not attach, and neither
          an appeal nor further prosecution constitutes
          double jeopardy.


Id. (citations omitted).   It should be clear from this

description of the "attachment" concept that jeopardy does not,

and cannot, attach until one is made a party to a proceeding

before a trier of fact having jurisdiction to try the question of

guilt or innocence, and that, until such time, the constitutional

double jeopardy prohibition can have no application.0




0
 In Halper and Austin, and, for that matter, in Montana Dept. of
Rev. v. Kurth Ranch, 114 S. Ct. 1937 (1994), the Court did not
discuss the attachment threshold issue. We do not take the
Court's failure to discuss "attachment" in these cases to signify
that it has intended, by implication, to do away with the
venerable "attachment" threshold requirement. In each of these
three cases, it was clear that the double jeopardy claimant or
claimants suffered "punishment" only after having first been made
a party to a proceeding before a trier of fact with jurisdiction
to decide "innocence" or "guilt." Thus, the "attachment"
threshold was, in each of these cases, clearly enough satisfied
that no discussion of it was required.


                                 13
           Because Baird failed to contest the forfeiture, he

never became a party to any judicial proceeding, criminal or

civil.   In fact, no judicial proceeding occurred prior to the

forfeiture of the money -- such being the very nature of

administrative forfeiture.   Baird has therefore yet to have been

placed in jeopardy, or at risk, of a determination of "guilt" and

the concomitant imposition of "punishment."   Like the double

jeopardy claimant in Torres, as a non-party to the administrative

forfeiture process, Baird was not, and could not have been,

placed at risk by that process.    And without having been placed

at risk of a determination of guilt, jeopardy did not attach as a

consequence of the administrative forfeiture.   Thus, "neither an

appeal nor further prosecution [of Baird would] constitute[]

double jeopardy."   Torres, 28 F.3d at 1465 (quoting Serfass, 420

U.S. at 389).

           By asking us to find a double jeopardy violation in his

case, Baird is asking, essentially, that we give to the "no

multiple punishments" rule a breadth of effect greater even than

that given to it by Halper, Austin and Kurth Ranch.    Baird would

have us conclude that multiple punishments, per se, violate the
Double Jeopardy Clause.   Even under the above precedents, this

just isn't so.   Prior to Halper, the "no multiple punishments"

rule was of rather limited effect -- merely proscribing the

imposition of those cumulative punishments, for example, fine and

incarceration, not authorized by the legislature.   See Halper,

490 U.S. at 451 n.10.   As noted above, Halper extended the no-
double-punishments rule to civil penalties.   Halper also


                                  14
"affirm[ed] that [the no multiple punishments rule] demand[s]

more than mere fidelity to legislative intent . . . ."   Kurth

Ranch, 114 S. Ct. at 1957 (Scalia, J., dissenting).

Significantly, however, Halper did not remove from the double

jeopardy claimant's shoulders the burden of establishing a former

jeopardy.    A post-Halper double jeopardy claimant in the position

of Baird, therefore, cannot prevail merely upon a showing that he

or she has been once punished for the same offense by the same

sovereign.   Rather, the post-Halper double jeopardy claimant must

also show that the initial punishment was meted out during the

course of a prior proceeding having the "functional equivalen[ce]

of a [prior] criminal prosecution that placed the [claimant] in

jeopardy . . . `for the same offence.'"   Kurth Ranch, 114 S. Ct.

at 1948.    In other words, to prevail on his post-Halper double

jeopardy claim, Baird would have to establish a former jeopardy.0

Because of the very manner in which the seized property was

forfeited, this he was unable to do.


0
 The dissent argues that participation in a forfeiture proceeding
should not be a precondition to a double jeopardy claim. This
argument does away with the multiple jeopardy requirement and is,
therefore, contrary to Supreme Court precedent, see Serfass, 420
U.S. 377 (1975), not to mention the language of the Double
Jeopardy Clause itself. We are also troubled by the suggestion,
implicit in the dissent, that one can be "punished" in a manner
relevant to the Double Jeopardy Clause without having been
subjected to any judicial process whatsoever. "Unless the whole
doctrine of our system of jurisprudence, both the Constitution
and the common law, for the protection of personal rights . . .
[is] a nullity," Ex Parte Lange, 85 U.S. 163, 176 (1874), no one
may be "punished" in a manner relevant to the Double Jeopardy
Clause without first having been subjected to some form of
judicial procedure, either in the form of a criminal prosecution
or the "functional equivalent" thereof.


                                 15
                         IV.   Conclusion

          Having concluded that we have jurisdiction to hear this

appeal, and having further concluded that Frank Baird was not

punished as a result of the administrative forfeiture of the

money seized from his residence, and that a former jeopardy did

not attach as a result of the administrative forfeiture of money

assumed for the sake of argument to have been Baird's property,

we will deny the government's motion to dismiss this appeal, and

affirm the district court's denial of Baird's motion to dismiss

the superseding indictment on double jeopardy grounds.
_________________________




                                16
17
United States v. Frank L. Baird, No. 95-1202.



SAROKIN, Circuit Judge, dissenting.

I agree with the majority that this court has jurisdiction over defendant's appeal.

op. at      [Typescript at 4-5]. Accordingly, I too would deny the United States's mo

dismiss the appeal for lack of jurisdiction.    On the merits, I conclude that forfei

pursuant to 21 U.S.C.A. § 881(a)(6) may constitute punishment for purposes of the D

Jeopardy Clause. I respectfully dissent because I believe that double jeopardy can

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 p

and that such forfeiture constituted punishment.



                                               I.



The Fifth Amendment's Double Jeopardy Clause reads: "nor shall any person be subjec
the same offence to be twice put in jeopardy of life or limb."    U.S. Const., Amdt.

Supreme Court has explained that "the Double Jeopardy Clause protects against three

distinct abuses: a second prosecution for the same offense after acquittal; a secon

prosecution for the same offense after conviction; and multiple punishments for the

offense."   United States v. Halper, 490 U.S. 435, 440 (1989). The instant case invo

the third of these protections, a protection which "has deep roots in our history a
jurisprudence."   Id.



                                               18
In Witte v. United States,      U.S.      , 115 S.Ct. 2199 (1995), the Supreme Court r

held that although a petitioner had not yet been twice convicted, his "multiple

punishment" claim was ripe for appellate review before trial because "the Double Je

Clause protects against more than the actual imposition of two punishments for the

offense; by its terms, it protects a criminal defendant from being twice put in jeo

for such punishment."   Id. at 2204-2205.     In the instant case, if defendant was pun

by the forfeiture, the prospect of a criminal trial and further punishment places h

jeopardy of prohibited multiple punishments.     Thus, it is appropriate and required

adjudicate his claim prior to trial and on appeal, before he is subjected to the ri

second punishment for the same offense.

                                               II.



I turn to the merits of defendant's double jeopardy claim.     The question presented

whether forfeiture pursuant to 21 U.S.C.A. §881(a)(6) (West 1981) constitutes punis

for purposes of the Double Jeopardy Clause.     Three recent Supreme Court decisions g
our analysis.   See Department of Revenue v. Kurth Ranch,      U.S.     , 114 S.Ct. 193

(1994); Austin v. United States,       U.S.     , 113 S.Ct. 2801 (1993); United States

Halper, 490 U.S. 435 (1989).

In United States v. Halper, the Supreme Court considered "whether and under what

circumstances a civil penalty may constitute 'punishment' for the purposes of doubl

jeopardy analysis."   490 U.S. at 436.    The Court fashioned the following test: "a c

sanction that cannot fairly be said solely to serve a remedial purpose, but rather
only be explained as also serving either retributive or deterrent purposes, is



                                                19
punishment."    Id. at 448. Specifically, the Court held that the Double Jeopardy Cla

prohibition against multiple punishments for the same offense was violated where a

defendant who already had been punished in a criminal prosecution was subjected to

additional civil sanction to the extent that the second sanction served the traditi

goals of punishment--deterrence and retribution.    Id. at 449.

The Supreme Court recently applied the Halper test in Department of Revenue v. Kurt

Ranch, supra.   There, the Supreme Court considered whether a state tax imposed on t

possession and storage of dangerous drugs constituted a second punishment for purpo

the Double Jeopardy Clause.   The Court began its discussion by noting that although

Amendment's text only mentions harms to "life or limb," it is well settled that the

Amendment covers monetary penalties.    114 S.Ct. at 1941 n.1. Recognizing that Halpe

decided that the legislature's description of a statute as civil is not determinati

the Double Jeopardy issue, the Court focused instead on whether the tax had punitiv

characteristics that subjected it to the constraints of the Double Jeopardy Clause.

Ranch, 114 S.Ct. at 1945.   The Court found it indicative of penal intent that the t
conditioned on the commission of a crime and was exacted only after the taxpayer ha

arrested for the precise conduct that gave rise to the tax obligation.    Id. at 1947

Court held that the drug tax was punitive in nature and therefore must be imposed i

first proceeding or not at all.    Id. at 1948.

In Austin v. United States, supra, the Supreme Court relied heavily on the rational

Halper to determine whether civil forfeiture pursuant to 21 U.S.C.A. §§ 881(a)(4) a

(West Supp. 1995) constitutes punishment for purposes of the Eighth Amendment's Exc
Fines Clause.   Austin, 113 S.Ct. at 2806.   However, rather than focusing, as the Co



                                              20
done in Halper, on the goals of the sanction in the individual case, the Austin Cou

reasoned that in the forfeiture context it made more sense to focus on the forfeitu

statute as a whole because "[t]he value of the conveyances and real property forfei

under §§881(a)(4) and (a)(7), . . . vary so dramatically that any relationship betw

Government's actual costs and the amount of the sanction is merely coincidental."

113 S.Ct. at 2812 n.14.     See also Kurth Ranch, 114 S.Ct. at 1948 (focusing on goals

statute as a whole).     The Court concluded that forfeitures under §§ 881(a)(4) and (

are properly considered punishment because: nothing in the sections contradicts the

historical understanding of forfeiture as imposing punishment; the sections focus o

owner's culpability by providing for the "innocent owner" defense and by tying forf

directly to the commission of drug offenses; and Congress understood the sections a

serving the goals of deterrence and punishment. Austin, 113 S.Ct. at 2810-11.

Thus, we know from Halper and Kurth Ranch that a civil sanction can constitute puni

for double jeopardy purposes and that the proper focus is whether a civil sanction

punitive in nature. Moreover, we know from Austin that civil forfeiture pursuant to
U.S.C.A. §§ 881(a)(4) and (a)((7) is punishment for purposes of the Excessive Fines

Clause.

The Supreme Court's holding in Austin that forfeiture pursuant to §881(a)(4) and (a

constitutes punishment is controlling for purposes of § 881(a)(6) (dealing with mon

negotiable instruments, and securities), the section at issue in this case.0    The A

0
    The following items are subject to forfeiture under §881(a)(6):

        All monies, negotiable instruments, securities, or other things of value
        furnished or intended to be furnished by any person in exchange for a controll
        substance in violation of this subchapter, all proceeds traceable to such an


                                               21
Court's historical analysis of forfeiture as punishment and its reliance on the

legislative history of § 881 are equally applicable in the instant case.    Moreover,

the sections of the forfeiture statute at issue in Austin, §881(a)(6) also includes

innocent owner defense, which focuses on the culpability of the owner in a way that

it look more like punishment.   See Austin, 113 S.Ct. at 2810-11.   Section 881(a)(6)

conditioning of forfeiture on a violation of the Controlled Substances Act is also

indicative of Congress' punitive intent.   See id. at 2811.

Further, the legislative history of § 881(a)(6) evidences Congress's intent to puni

to deter.   Senator Culver, a sponsor of the legislation, said it would "provide the

States with strong new weapons to . . . strike at the profits of illegal drug

trafficking."   124 Cong. Rec. S17644 (Oct. 7, 1978).   Senator Nunn, also a sponsor

legislation, explained that "[t]he criminal justice system can only be effective if

is a meaningful deterrent.   It is important that the offender be aware of the risk

running."   124 Cong. Rec. S11965 (July 27, 1978).   "We cannot forget that profit,

astronomical profit, is the base motivation of drug traffickers."    Id.   By "strikin
against the profits from illicit drug trafficking" the enactment of § 661(a)(6) wou

enhance "the punitive and deterrent purposes of the Controlled Substances Act," whi

would then "have greater impact on drug trafficking."    Id.


     exchange, and all monies, negotiable instruments, and securities used or
     intended to be used to facilitate any violation of this subchapter, except tha
     no property shall be forfeited under this paragraph, to the extent of the
     interest of an owner, by reason of any act or omission established by that own
     to have been committed or omitted without the knowledge or consent of that
     owner.

21 U.S.C.A. § 881(a)(6) (West 1981).


                                             22
The specific holding in Austin is that civil forfeiture constitutes punishment for

purposes of the Excessive Fines Clause.    In contrast, this case involves a claim un

Double Jeopardy Clause, yet I believe that Austin is controlling for double jeopard

claims as well.    Significantly, in Austin the Supreme Court relied on Halper, which

involved the Double Jeopardy Clause, to decide whether a civil sanction constituted

punishment for purposes of the Excessive Fines Clause.      See 1 David B. Smith, Prose

and Defense of Forfeiture Cases, ¶ 12.10[2], at 12-136 (1994) ("The Supreme Court's

decision in Austin v. United States, makes it clear that Halper's double jeopardy

protections do apply to the vast majority of civil forfeiture cases.").

Recently, the Ninth Circuit similarly relied on Austin and Halper in holding that c

forfeiture pursuant to 21 U.S.C.A. § 881(a)(6) constitutes punishment which trigger

protections of the Double Jeopardy Clause.    United States v. $405,089.23 United Sta

Currency, 33 F.3d 1210 (9th Cir. 1994), opinion amended on denial of rehearing, 56

(9th Cir. 1995).    Cf. United States v. Ursery,     F.3d      , No. 94-1127, 1995 WL 4

(6th Cir. July 13, 1995) (holding that civil forfeiture pursuant to §881(a)(7) foll
criminal conviction for the same offense constituted double jeopardy).     The Ninth C

reasoned that:
     the only fair reading of the Court's decision in Austin is that it resolves th
     'punishment' issue with respect to forfeiture cases for purposes of the Double
     Jeopardy Clause as well as the Excessive Fines Clause. In short, if a
     forfeiture constitutes punishment under the Halper criteria, it constitutes
     'punishment' for purposes of both clauses.

33 F.3d at 1219.    Thus, the court held that the government violated the Double Jeop

Clause by obtaining criminal convictions against the defendant and then continuing




                                              23
pursue the forfeiture action.   The court concluded by discussing the practical effe

Austin on the government's prosecution of cases:
     Because in the case of statutes like those before us a criminal prosecution an
     a forfeiture action based on the same offense must now be brought in the same
     proceeding--that is, the same indictment--the government will often be forced
     choose whether to include a criminal forfeiture count in the indictment (and
     thus forego the favorable burdens it would face in the civil forfeiture
     proceeding) or to pursue only the civil forfeiture action (and thus forego the
     opportunity to prosecute the claimants criminally). If, in such cases, the
     government wishes both to obtain forfeiture and to impose other forms of
     criminal punishment, it 'will have to rely to a much greater extent on crimina
     forfeiture.' It is entirely reasonable to put the government to this choice.
     After Austin, the law requires it.

33 F.3d at 1222 (citation omitted).   I find the Ninth Circuit's reasoning persuasiv

The government counters that under Austin only civil forfeitures that are found to

excessive are to be considered punishment. However, the government misstates the ho

in Austin.   Austin holds that all forfeitures under §§ 881(a)(4) and (a)(7) are mea

part to punish and therefore can run afoul of the Excessive Fines Clause.    Austin,

S.Ct. at 2812.   The Austin court left the issue of whether the forfeiture was

constitutionally excessive to the district court in the first instance.     Id.

The government also contends that application of Halper's "rational-relation" test-

whether the amount of the sanction appears to be rationally related to the damages

by the wrongful conduct of the defendant--results in the conclusion that the instan

forfeiture of defendant's property does not constitute punishment.   However, in Aus

the Supreme Court found that the "rational-relation" test was inapplicable in the

forfeiture setting, and, instead, looked to the purpose behind the forfeiture statu

itself, concluding that forfeiture serves in part to punish.   113 S.Ct. at 2812 n.1

agree that in the forfeiture context it does not make sense to compare the amount s



                                             24
with the government's damages and actual costs; the value of the property seized is

fortuitous, and thus "any relationship between the Government's actual costs and th

amount of the sanction is merely coincidental."        Austin, 113 S.Ct. at 2811-12, 2812

Moreover, the government has failed to demonstrate on the record how the forfeited

property relates to its cost of investigation and prosecution of defendant's case.

Finally, the government argues that to the extent that the forfeiture in the instan

can be considered punishment, it is punishment imposed against the property itself

against the owner of the property.     However, the Supreme Court in Austin stressed t

has consistently recognized that in rem forfeiture serves, at least in part, to pun

owner.    113 S.Ct. at 2810. Moreover, the Court made clear that forfeiture of proper

as cars and real estate under the current forfeiture statute is dependent not on th

criminal nature of the property, but on the illegal use their owners make of them.

Austin, 113 S.Ct. at 2810-11.    The same reasoning applies to monies forfeited under

§881(a)(6).    Therefore, it is the owners who are punished by the forfeiture of such

property.    Id. at 2811.

The Supreme Court in Halper addressed the question of what constitutes punishment f
purposes of the Double Jeopardy Clause.      490 U.S. at 436.   The Halper Court announc

the proper inquiry is whether the sanction serves the goals of punishment, i.e.

retribution or deterrence.     Id. at 448.   In Austin, the Court held that Congress in

for the forfeiture of property pursuant to §§        881(a)(4) and (a)(7) to deter and to

punish.     See Austin, 113 S.Ct. at 2811.   Similarly, for reasons previously discusse

881(a)(6) was intended to deter and to punish. Therefore, I conclude that forfeitur
pursuant to § 881(a)(6) constitutes punishment for purposes of the Double Jeopardy



                                                25
                                             III.



Having decided that forfeiture pursuant to 21 U.S.C.A. § 881(a)(6) constitutes puni

for purposes of the Double Jeopardy Clause, I turn to the question of whether the s

of the proceedings makes a constitutional difference.     In all of the Supreme Court

previously discussed, the criminal sanction preceded the civil sanction and thus it

second, civil sanction that has been barred under the Double Jeopardy Clause. By co

in the instant case defendant asks us to apply the Double Jeopardy Clause to bar hi

criminal prosecution.

The Court noted in Kurth Ranch that the statute at issue did not raise the question

whether a civil proceeding which is designed to inflict punishment may bar a subseq

criminal proceeding.    114 S.Ct. at 1947 n.21.    In his dissent, Justice SCALIA warne

although the majority confronted the relatively easy task of disallowing a civil pe

after a criminal sanction already had been imposed, cases in which criminal penalti
at stake will demand much more of courts.    Id. at 1958-59 (SCALIA, J. dissenting).

Justice SCALIA opined that the order of punishment cannot possibly make a constitut

difference.   Id. at 1958. I agree.

There is no reason why the sequence of the proceedings should make a difference in

constitutional analysis.   In other words, the holdings in Halper and Austin apply e

to cases in which the civil sanction precedes the criminal sanction. "[T]he labels

'criminal' and 'civil' are not of paramount importance."      Halper, 490 U.S. at 447.
Instead, the critical inquiry remains whether the proceeding constitutes punishment



                                              26
double jeopardy purposes and whether the defendant is receiving or is at risk of re

multiple punishments for the same offense.   Several other circuits also have held t

order of the proceedings, civil or criminal, does not affect the double jeopardy

determination.   See United States v. Furlett, 974 F.2d 839, 843 n.2 (7th Cir. 1992)

United States v. Sanchez-Escareno, 950 F.2d 193, 200 (5th Cir. 1991), cert. denied,

U.S.    , 113 S.Ct. 123 (1992); United States v. Mayers, 897 F.2d 1126, 1127 (11th

cert. denied, 498 U.S. 865 (1990); cf. United States v. Ursery,     F.3d    , No. 9

1995 WL 411189 (6th Cir. July 13, 1995) (finding double jeopardy where civil forfei

preceded criminal prosecution).



                                             IV.



I next consider whether it makes a difference in the double jeopardy analysis that

defendant in the instant case did not participate in the forfeiture proceedings.     T

district court's ruling is based on the stated rationale that "jeopardy ha[d] not a
pursuant to the administrative forfeiture proceeding," presumably because defendant

not contest the forfeiture.   United States v. Baird, No. 94-0215, Order, at n.1 (E.

March 14, 1995). Similarly, the majority concludes that administrative forfeiture c

never constitute punishment for purposes of the Double Jeopardy Clause because: (1)

property is ownerless, i.e. no one has made a claim and/or filed a cost bond, and t

taking of ownerless property punishes no one; and (2) administrative forfeiture doe

place in jeopardy the person whose property is so forfeited, because it does not in
judicial proceeding.



                                             27
I believe that, if a defendant can prove that he was the owner of the property seiz

participation in the forfeiture proceedings is not and should not be a precondition

claim of double jeopardy.    A defendant may choose not to participate because the

allegations are true, or for fear that a claim of ownership could be utilized again

in the criminal proceeding.   For instance, the government alleged in this case that

defendant owned the seized property and that the property was used or acquired as a

of a drug-related offense.    If the allegations are true, what purpose would be serv

defendant's participation in the forfeiture proceeding?

Moreover, a claim of ownership in the forfeiture proceeding conceivably could be us

against defendant in the criminal proceeding. Thus, requiring defendant to particip

the forfeiture proceeding as a precondition to a double jeopardy claim would force

defendant to choose between waiving his privilege against self-incrimination or wai

his right to assert a double jeopardy violation.    The Supreme Court stressed in Sim

United States, 390 U.S. 377 (1968), that one constitutional right need not be surre

in order to assert another.    Id. at 394. In Simmons, the Court found that an
unconstitutional dilemma was created when defendant was required to surrender his F

Amendment privilege against self-incrimination in order to establish his standing t

assert an arguably valid Fourth Amendment claim.    Id.   The Court resolved the dilem

holding that: "when a defendant testifies in support of a motion to suppress eviden

Fourth Amendment grounds, his testimony may not thereafter be admitted against him

trial."   Id. Similarly, in the instant case, we refuse to subject defendant to such

unconstitutional dilemma by requiring him to intervene in the forfeiture proceeding
order to preserve his rights under the Double Jeopardy Clause.     The issue should b



                                              28
whether defendant was the owner, not whether he filed a proper and timely claim of

ownership in the forfeiture proceeding.    He is punished if his property is forfeite

irrespective of whether or not he participated.     Hence, there should be no distinct

between administrative and civil forfeiture; in either instance, a defendant must

establish ownership and punishment before he can claim double jeopardy.     See also S

supra, ¶ 12.10, at 12-141 n.33.1 ("[A] rule which would require property owners to

claim and go through the motions of contesting a civil forfeiture merely to preserv

double jeopardy issue has little to recommend it.     Tens of thousands of uncontested

forfeitures would soon find their way into court.").

The majority relies on Serfass v. United States, 420 U.S. 377 (1975), in holding th

Double Jeopardy Clause requires that defendant participate in two judicial proceedi

Maj. op. at     [Typescript at 16 n.11].   However, Serfass, in contrast to the instan

did not involve a "multiple punishments" claim and does not stand for the propositi

multiple judicial proceedings are a precondition to all double jeopardy claims.     In

case, defendant claims that he was punished by the forfeiture of his monies and tha
on the instant indictment would subject him to multiple punishments for the same of

The issue is thus whether defendant is at risk of being twice punished for the same

offense, not whether defendant is at risk of being twice tried.

 Lastly, in United States v. Torres, 28 F.3d 1463 (7th Cir. 1994), the Seventh Cir

held that the administrative forfeiture of monies did not bar defendant's sentence

imprisonment.   I am unpersuaded by the Torres decision to the extent that it holds

unless a defendant participates in the forfeiture proceeding, he cannot claim doubl
jeopardy.   Additionally, this case is factually distinguishable from Torres.    Defen



                                               29
Torres and Olivares were arrested and their cash seized when they attempted to buy

from "sellers" who turned out to be federal agents.      Torres, 28 F.3d at 1464.   The

were administratively forfeited, and subsequently defendant Torres was convicted in

separate criminal proceeding.   Id.    On appeal, Torres argued that his criminal sent

was barred by the Double Jeopardy Clause.     Id.   In rejecting Torres's double jeopar

claim, the court stressed that it was not clear who owned the forfeited funds and

speculated that "perhaps he [Torres] was just a courier, making the buy on behalf o

undisclosed principal." Id. at 1466.    In contrast, the ownership of the funds in th

instant case is not honestly contested.



                                              V.



Assuming that defendant can establish that he was the owner of the forfeited proper

nature of the property forfeited should affect one's ability to claim double jeopar

For illustrative purposes, I will divide property subject to forfeiture under §881(
two categories.0

The first category includes property which is dangerous and/or illegal per se and t

subject to destruction or removal from society. The forfeiture of such property can

constitute punishment for purposes of the Double Jeopardy Clause because its forfei

may be characterized as "remedial."    This category includes:


0
 Moreover, we need not even consider whether confiscating property that a defendant
not have title to, i.e. stolen property, is punishment for double jeopardy purposes
recognize that the government can immediately confiscate such property and is not r
to institute forfeiture proceedings.


                                              30
     all controlled substances which have been manufactured, distributed, dispensed
     acquired, § (a)(1);

all raw materials, products, and equipment which are used in manufacturing any con
    substance, § (a)(2);

     all property which is used as a container, § (a)(3);

     all books, records, and research, including formulas, microfilm, tapes, and da
     which are used in violation of this subchapter, § (a)(5);

     all controlled substances which have been possessed in violation of this
     subchapter, § (a)(8);

     all listed chemicals, all drug manufacturing equipment, all tableting machines
     all encapsulating machines, and all gelatin capsules, § (a)(9);

     any drug paraphernalia, § (a)(10);

     any firearm, § (a)(11).

21 U.S.C.A. § 881(a) (West 1983 & Supp. 1995).

The items included in the first category are either illegal per se and/or dangerous

society in general or to law enforcement agents in particular.   The Austin Court co

that "the forfeiture of contraband itself may be characterized as remedial because
removes dangerous or illegal items from society."   113 S.Ct. at 2811 (citing United

v. One Assortment of 89 Firearms, 465 U.S. 354 (1984), which involved forfeiture of

firearms).   Indeed, Congress recognized that such property is dangerous by providin

its summary forfeiture and destruction.   Specifically, section 881(f)(1) (West Supp

provides that all controlled substances, all raw materials, and any equipment or co

subject to forfeiture, which cannot be separated safely from such raw material or p

shall be deemed contraband and summarily forfeited to the United States. Section 88
(West Supp. 1995) allows the government to destroy such property.   See also H.R. Re



                                             31
101-681(I), 101st Cong., 2d Sess. (1990) reprinted in 1990 U.S.C.C.A.N. 6472, 6506

(providing for summary forfeiture and destruction of dangerous substances and the

equipment or containers from which these substances cannot be safely separated "bec

the dangers they create for law enforcement agents").     Similarly, Congress provided

the selling and interstate transport of drug paraphernalia is illegal, § 863(a) (We

Supp. 1995), and that drug paraphernalia is subject to seizure, forfeiture, and

destruction, § 863(c) (West Supp. 1995).

The second category consists of property forfeited pursuant to     §§881(a)(4), (6), (

such as boats, planes, cars, real property, and monies, which courts have distingui

"derivative contraband."   Derivative contraband has been defined as articles which

inherently illegal, but are used in an unlawful manner.    See United States v. Farre

F.2d 1341, 1344 (D.C. Cir. 1979) (monies used in drug transaction are derivative

contraband).   The forfeiture of such property may serve as a basis for a double jeo

claim because, as previously discussed, the forfeiture of property pursuant to §§

881(a)(4), (6), and (7) is punitive in nature.



                                            VI.



Finally, I pose the question whether the source of the property seized should affec
determination of double jeopardy.   Two scenarios illustrate my concerns:   In the fi

scenario, a person acquires a house or car by honest means.    If that property is fo

because it is utilized in connection with criminal activity, the owner is clearly

punished.   Under such circumstances, a prior or subsequent criminal proceeding base



                                             32
the same charges, which justified the forfeiture, would implicate double jeopardy.

concern is with the second scenario, in which a defendant acquires property by dish

means.   For instance, monies passed to a person in a drug sale are immediately seiz

ultimately forfeited.   I have difficulty in concluding that such forfeiture, i.e. t

seizure of monies derived from an illegal transaction, bars criminal prosecution fo

drug sale.    I acknowledge that the monies seized technically are the property of th

dealer, and, thus, their forfeiture constitutes punishment in the ordinary sense of

word; but I ponder whether it does or should constitute punishment for double jeopa

purposes.    The issue is further complicated if the forfeiture involves property acq

from the expenditure of monies illegally obtained--the indirect rather than the dir

acquisitions of illegal activity.

Since the majority does not find double jeopardy because of the nature of the forfe

proceeding, this distinction is not addressed. However, I find it worthy of serious

consideration.   Moreover, I recognize that if my distinction were to be adopted, a

secondary issue would have to be resolved concerning the applicable burden of proof
where to place it.



                                             VII.



I would vacate the judgment of the district court and remand for further proceeding

consistent with this opinion.




                                              33
