                                 PUBLISH

                  UNITED STATES COURT OF APPEALS
Filed 1/31/96              TENTH CIRCUIT



UNITED STATES OF AMERICA,             )
                                      )
           Plaintiff-Appellee,        )
                                      )
v.                                    )                    No. 95-2162
                                      )
DANIEL CURTIS GERMAN,                 )
                                      )
           Defendant-Appellant.       )

           Appeal from the United States District Court
                  for the District of New Mexico
                      (D.C. No. CR-95-108-HB)

Submitted on the briefs:

John J. Kelly, United States Attorney, and Kelly H. Burnham,
Assistant United States Attorney, Las Cruces, New Mexico, for
Plaintiff-Appellee.

Joseph (SIB) Abraham, Jr., El Paso, Texas, for Defendant-Appellant.


Before KELLY and BARRETT, Circuit Judges, and O'CONNOR, Senior
District Judge.*


O'CONNOR, Senior District Judge.


*    The Honorable Earl E. O'Connor, Senior United States District
Judge for the District of Kansas, sitting by designation.



     The   defendant,   Daniel    Curtis   German,   was   indicted   for

possession with intent to distribute more than 100 kilograms of

marijuana, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(B).          He
appeals from the district court's order denying his motion to
dismiss the indictment on double jeopardy grounds. We find that we

have jurisdiction of this appeal and affirm. 1

                          I.   Background

     The relevant facts are not in dispute.   On February 11, 1995,

German was arrested for transporting over 700 pounds of marijuana

in the truck he was driving.    At the time of his arrest, a Drug

Enforcement Administration ("DEA") agent seized the truck and gave

German a DEA notice entitled "Notice of Seizure of a Conveyance for
a Drug-Related Offense." The notice advised German that the truck

was seized because it was used to transport drugs and to facilitate

drug trafficking, and was subject to forfeiture pursuant to 21
U.S.C. § 881(a)(4).   The notice also informed defendant that he

would receive a separate notice providing further details of the

seizure and his available rights at a later date. In addition, the

notice stated:
     Upon the filing of a claim and the posting of a cost
     bond, the merits of the claim and the determination of
     forfeiture will be conducted through a judicial
     proceeding pursuant to Title 21, U.S.C. Section 881;
     Title 19, U.S.C., Sections 1602-1608; and Title 21,
     C.F.R. Sections 1316.17-1316.81 and Sections 1316.90-
     1316.99.

Defendant signed the notice acknowledging receipt of the same.

     The DEA subsequently sent German another document relating to

the truck entitled "Notice of Seizure," dated March 20, 1995.    On


      1
      After examining the briefs and the appellate record, the
panel has determined unanimously that oral argument would not
materially assist the determination of this appeal.    See Fed.
R.App. P. 34(a); 10th Cir. R. 34.1.9.     The case is therefore
ordered submitted without oral argument.
                               - 2 -
March     25,   1995,    German   signed      a   Domestic   Return   Receipt

acknowledging receipt of the Notice of Seizure.                 The prefatory

language in the Notice of Seizure provided in part:

     You may petition the DEA for the return of the property
     or your interest in it (remission or mitigation), and/or
     you may contest the seizure and forfeiture of the
     property in court. Also, under certain circumstances,
     you may petition for the expedited release of the
     property. You should review the following procedures
     very carefully.

Notice of Seizure (emphasis in original).                With regard to the

specific procedure for contesting the forfeiture of the seized
property, the Notice of Seizure explained that:

     In addition to or in lieu of petitioning for remission or
     mitigation, you may contest the forfeiture of the seized
     property in UNITED STATES DISTRICT COURT. To do so, you
     must file a claim of ownership and cost bond with the
     DEA. . . . If you are indigent (needy or poor) you may
     not have to post the bond. To request a waiver of the
     bond, you must fully disclose your finances in a signed
     statement called a "Declaration in Support of Request to
     Proceed In Forma Pauperis" along with a claim of
     ownership of the property. . . . The claim of ownership,
     with either bond or the "Declaration in Support of
     Request to Proceed In Forma Pauperis" must be filed
     within twenty (20) days of the first date of publication
     of the notice of seizure in the edition of USA Today
     newspaper referenced above.

Id. (emphasis in original).        The Notice of Seizure stated that the

date of first publication of the notice of seizure would be
March 29, 1995.     Thus, in order for defendant to timely file the

papers necessary to properly contest the forfeiture of the truck,

he needed to file a claim of ownership, along with a cost bond or

an in forma pauperis declaration, by April 18, 1995.

     On    April   26,   1995,    the   DEA   received   from   defendant   an

"Affidavit in Forma Pauperis." The next day, the DEA sent German's

                                    - 3 -
attorney a letter, advising that the DEA was returning the in forma

pauperis affidavit because it had been filed after the April 18th

deadline date.    The letter further advised that, as a matter of

discretion, the DEA would allow German twenty days from receipt of

the letter to file a petition for an administrative ruling.

       Within the twenty days provided by the DEA, German submitted

a petition for remission and/or mitigation consisting of a letter

signed under oath dated May 15, 1995, and the affidavit in forma

pauperis he had previously filed. German's truck was forfeited and
sold at auction on July 20, 1995.

       On appeal, German contends that the forfeiture of the truck
constituted punishment within the meaning of the double jeopardy

clause, and the government's current prosecution against him for

violation of 21 U.S.C. § 841(a)(1) subjects him to double jeopardy.


                               II.    Discussion
       As an initial matter, we first address the government's

argument that the court lacks jurisdiction over this appeal.               Our

authority to hear the appeal stems from Abney v. United States, 431
U.S. 651 (1977).        There, the Supreme Court held that appellate

courts have jurisdiction to entertain an appeal from a pretrial

order denying dismissal sought on double jeopardy grounds.              Id. at
663.     The Court reasoned that, as the double jeopardy clause

forbids a second trial, such a denial was within the "collateral
order"    exception     to    the    final    judgment   rule   of   appellate

jurisdiction.     Id.        Accordingly, we have jurisdiction to hear


                                      - 4 -
German's interlocutory appeal of the pretrial order denying his

motion to dismiss the superseding indictment on double jeopardy

grounds.

      A district court's denial of a motion to dismiss an indictment

on double jeopardy grounds is reviewed de novo.          United States v.
Hudson, 14 F.3d 536, 539 (10th Cir. 1994).        The underlying factual

findings of the district court are reviewed for clear error.

O'Connor v. R.F. Lafferty & Co., Inc., 965 F.2d 893, 901 (10th Cir.

1992).
      The double jeopardy clause of the Fifth Amendment to the

United States Constitution prohibits successive prosecution or
multiple punishment for "the same offense."              Witte v. United

States, ___U.S.___, 115 S.Ct. 2199, 2202 (1995).              Significantly,

the language of the clause protects against more than the actual

imposition of two punishments for the same offense; by its terms,

it protects a criminal defendant from being twice put in jeopardy
for such punishment.      Id. at 2204.

      The   Fifth   Amendment's   guarantee    against   double      jeopardy

protects against three types of abuses:         (1) a second prosecution
for the same offense after an acquittal; (2) a second prosecution

for   the   same    offense   after   a   conviction,   and    (3)   multiple

punishments for the same offense.          United States v. Halper , 490

U.S. 435, 440 (1989); see also United States v. McDermott, 64 F.3d

1448, 1454 (10th Cir. 1995), petition for cert. filed, (U.S.

Nov. 6, 1995) (No. 95-6653). Multiple punishments are permissible

if imposed in the same proceeding, but are impermissible if imposed

                                  - 5 -
in separate proceedings. United States v. Halper, 490 U.S. at 450-
451.

       The district court, in denying the defendant's motion to

dismiss the superseding indictment, stated as follows:

          Several courts have held that a defendant who fails
     to judicially contest a civil forfeiture by filing a
     claim of ownership and bond never becomes a party to the
     forfeiture proceeding and thus is neither punished nor
     placed in jeopardy. See e.g., United States v. Torres,
     28 F.3d 1463 (7th Cir.)(no double jeopardy without former
     jeopardy in uncontested forfeiture action because
     defendant did not become a party in forfeiture
     proceeding); cert. denied, 115 S. Ct. 669 (1994); United
     States v. Arreola-Ramos, __F.3d__, 1995 WL 428059 (5th
     Cir. 1995) (same); United States v. Nakamoto, 876 F.
     Supp. 235 (D. Haw. 1995); United States v. Walsh, 873 F.
     Supp. 334 (D. Ariz. 1994); United States v. Kemmish, 869
     F. Supp. 803 (S.D. Cal. 1994).
                                    In the instant case, Defendant
did not judicially contest the forfeiture of the semi-truck by
filing a claim of ownership and bond. Instead, Defendant elected
to pursue only his administrative remedy by filing a Petition for
Remission. In an analogous case,      Orallo v. United States of
America, the court stated:

            [A] petitioner seeking remission or mitigation
            of a forfeiture does not necessarily contest
            the legitimacy of a forfeiture.       In fact,
            under    remission/mitigation      procedures,
            forfeitability is presumed and the petitioner
            seeks relief from forfeiture on fairness
            grounds.
                              * * * * * *
            A petition for remission or mitigation does
            not resolve the issue of personal culpability,
            in fact, forfeiture is presumed. Jeopardy can
            only attach in a proceeding involving a
            determination of guilt.
       __ F. Supp. __, 1995 WL 319489 at *3 (D. Haw. May 23,
       1995)(internal citations omitted);     see also, United
       States v. Crowell, Cr. 90-464 PHX RCB (D. Ariz. April 28,
       1995)(Double Jeopardy Clause does not relieve defendants
       from the consequences of their choice to pursue a course
       which had effect of avoiding any judicial finding of
       personal culpability; thus jeopardy did not attach.)


                                - 6 -
          Like   the   defendant in     Orallo,   Defendant's
     culpability was never adjudicated in the forfeiture
     proceeding. Therefore, Defendant was never placed in
     jeopardy or "punished" in any constitutional sense
     because he was never a party in any proceeding designed
     to adjudicate his personal culpability. "A person who
     avoids an adjudication of his or her guilt or innocence
     cannot later claim double jeopardy when the government
     seeks to obtain such an adjudication in a later
     proceeding." Kemmish, 869 F. Supp. at 805. Accordingly,
     Defendant's Motion to Dismiss the Superseding Indictment
     is denied.

United States v. German, No. 95-108, slip op. at 3-5 (D. N.M.

1995).
     In sum, the district court held that German's culpability was

never adjudicated because he did not judicially contest the
forfeiture by filing a claim of ownership and bond in district
court, but instead elected to pursue only his administrative remedy

by   filing   a   Petition   for   Remission.     Because   defendant's

culpability was never adjudicated, he was never placed in jeopardy

or "punished" for double jeopardy purposes.
     Several federal courts have addressed this issue.        In United

States v. Torres, 28 F.3d 1463 (7th Cir.), cert. denied, 115 S. Ct.

669 (1994), Torres, a narcotics trafficker, was arrested in a sting

operation during the commission of a drug transaction.          He was

prosecuted, convicted, and sentenced to imprisonment for various
drug offenses.    On the date of his arrest, federal agents seized

$60,000 he had presented to undercover agents for the purchase of

cocaine. Prosecutors thereafter instituted forfeiture proceedings

pursuant to 21 U.S.C. § 881(a)(6), on the grounds that the money

was used in an illegal drug transaction.        Torres received notice


                                   - 7 -
inviting him to make a claim in the civil forfeiture proceeding.

He, however, failed to make any claim. Torres later sought to have

the administrative forfeiture of the $60,000 adjudicated prior

jeopardy barring his criminal conviction and imprisonment.            In

rejecting Torres' request, the Seventh Circuit reasoned:

     [P]arallel administrative and criminal actions do not
     necessarily violate the double jeopardy clause. Torres
     received notice inviting him to make a claim in the civil
     forfeiture proceeding. He did not. As a result, he did
     not become a party to the forfeiture.      There was no
     trial; the $60,000 was forfeited without opposition, and
     jeopardy did not attach. You can't have double jeopardy
     without a former jeopardy. Serfass v. United States, 420
     U.S. 377, 389, 95 S. Ct. 1055, 1063, 43 L.Ed.2d 265
     (1975). As a non-party, Torres was not at risk in the
     forfeiture proceeding, and "[w]ithout risk of a
     determination of guilt, jeopardy does not attach, and
     neither an appeal nor further prosecution constitutes
     double jeopardy." Id. at 391-92, 95 S.Ct. at 1064.

Torres, 28 F.3d at 1465.

     The Torres court buttressed its decision that jeopardy did not
attach as a result of the forfeiture of the drug money on the fact
that Torres failed to make a claim in the civil forfeiture
proceeding and thus was a non-party.    The Third and Fifth Circuits

have likewise held that where a defendant does not contest a civil

forfeiture,   jeopardy   does   not   attach   and,     therefore,   the
protections of the double jeopardy clause are not invoked.           See

United States v. Baird, 63 F.3d 1213 (3rd Cir. 1995), petition for

cert. filed, 64 USLW 3318 (Oct. 17, 1995) (No. 95-630); United

States v. Arreola-Ramos , 60 F.3d 188 (5th Cir. 1995).
     German does not undertake to distinguish         Torres, Baird, or

Arreola-Ramos.   Instead, he urges this court to follow the few


                                - 8 -
district court decisions that have deemed a party's failure to

contest forfeiture irrelevant for purposes of raising a double

jeopardy argument.      Specifically, he directs our attention to:

United States v. Aguilar, 886 F. Supp. 740 (E.D. Wash. 1994)

(McDonald, J.) ("It is irrelevant whether, as the government

claims, Aguilar failed to contest the forfeiture."); United States

v. Heitzman, 886 F. Supp. 737 (E.D. Wash. 1994) (McDonald, J.)

(civil administrative forfeiture provided initial jeopardy even

though defendant failed to file a claim in the administrative
forfeiture proceeding); and United States v. Ailemen, 893 F. Supp.
888   (N.D.   Cal.   1995)   (court    held       that   government   imposed   a
punishment on the defendant by forfeiting defendant's money, even

though   defendant    failed   to     make    a    formal   appearance   in   the
forfeiture proceeding).

      Any persuasive authority that Aguilar and Heitzman may have

had is completely undercut by the more recent case of United States
v. Bradford , 886 F. Supp. 744 (E.D. Wa. 1995), in which Judge

McDonald took an approach directly opposite to that which he had

articulated in Aguilar and Heitzman.               ("[A] defendant who elects

not to contest the forfeiture of his property . . . cannot avoid
the adjudication of his personal culpability at one stage, then

suddenly assert that the forfeiture of these items has exposed him

to jeopardy when such a position becomes advantageous."                  Id. at

748.)    As explanation for his change in stance, Judge McDonald

noted that at the time of his decisions in Aguilar and Heitzman,



                                    - 9 -
the court was without the benefit of the more recently decided

cases from other jurisdictions.   Id.

     We view those cases relied upon by defendant as contrary to

the better rule, and against the weight of authority.   This court

chooses to follow the reasoning of the majority view as succinctly

expressed by our sister circuits in Torres and Arreola-Ramos.
     Under the facts of the instant case, we hold that jeopardy did

not attach:   German was never placed in jeopardy or "punished" in

any constitutional sense because he was never a party to any
proceeding designed to adjudicate his personal culpability.    His

subsequent criminal prosecution is not barred by double jeopardy.
     AFFIRMED.




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