                                   ___________

                                   No. 95-1847
                                   ___________

United States,                          *
                                        *
                   Appellee,            *
                                        *
     v.                                 *   Appeal from the United States
                                        *   District Court for the
Robert Melvin Volanty,                  *   Western District of Missouri
                                        *
                   Appellant.           *
                                   ___________

                         Submitted:      January 9, 1996

                                Filed:   March 7, 1996
                                   ___________

Before WOLLMAN, CAMPBELL,* and MURPHY, Circuit Judges.
                               ___________


MURPHY, Circuit Judge.


     Robert Melvin Volanty appeals from the denial of his supplemental
motion for the return of property pursuant to Federal Rule of Criminal
Procedure 41(e).   In late 1992 Volanty's hotel room was searched and drugs,
a firearm, and a large amount of currency were seized.      He was arrested,
and early in 1993 he was indicted and administrative forfeiture proceedings
were initiated.     He was convicted on all counts in May, and a default
forfeiture of the currency was entered in June.     Volanty had not received
notice of the administrative forfeiture proceeding, however, and he moved
in the district court to return the currency because the government had
acted in bad faith and because of the constitutional




     *The HONORABLE LEVIN H. CAMPBELL, United States Circuit
     Judge for the First Circuit, sitting by designation.
prohibition against double jeopardy.        The district court1 declined to
return the property and ordered the government to commence a judicial
forfeiture proceeding.    We affirm.2


     On November 21, 1992, officers from the Springfield Police Department
(SPD) seized $19,996 from Volanty's hotel room pursuant to a consent
search.   The officers also discovered and seized marijuana, cocaine, and
a firearm.   Volanty admitted that the drugs, weapon and cash were his, but
he stated that he had "found" the money.      Volanty was arrested and taken
into state custody.      At the time of his arrest he gave his address as
"General Delivery, Springfield, MO      65801."


     On January 7, 1993, the United States filed an indictment charging
Volanty with conspiracy to distribute cocaine during the period from
October 22 through November 21, 1992, in violation of 21 U.S.C. § 846,
possession with intent to distribute cocaine, in violation of 21 U.S.C. §
841(a)(1), use and carrying of a firearm during and in relation to the drug
offenses, in violation of 18 U.S.C. § 924(c), and possession of a firearm
by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).       The charges
in the indictment were based on the cocaine and firearms seized by the SPD
from Volanty's hotel room at the time of his arrest on November 21, 1992,
the same time that the currency was seized.       Volanty pled not guilty, and
a jury convicted him of all four counts on May 4, 1993.       He was sentenced
on July 15, 1993 to a total term of 350 months imprisonment.


     While the criminal prosecution on drug and firearms charges




     1
      The Honorable Scott O. Wright, United States District Judge
for the Western District of Missouri.
     2
      Volanty has filed a motion to file a supplemental appendix
consisting of medical records. Because the records are not
relevant to the legal issues presented, the motion is denied.

                                        2
proceeded, steps were being taken for the forfeiture of the seized
currency.   On February 5, 1993, the SPD turned the money over to the Drug
Enforcement Administration (DEA), which began forfeiture proceedings.    On
March 17, 1993, Volanty was sent a Notice of Seizure by certified mail.
He was in federal custody at that time, but the DEA sent the notice to the
address he had provided at the time of his arrest.      It was "returned to
sender."    The DEA also published notice of the seizure, starting on March
24, 1993, and no claims were filed.       On June 25, 1993 the DEA declared
forfeiture as to the $19,966.


     Nearly nine months later, Volanty filed a pro se motion for return
of seized property.     He asserted that the currency had been unlawfully
seized and was not subject to forfeiture.    After the government responded
that the currency had already been forfeited, Volanty asserted that he had
not received proper notice of the administrative proceeding.   At a hearing
on the motion, the government acknowledged that Volanty's due process
rights had been violated in the administrative forfeiture and suggested
that the proper remedy would be to initiate a new proceeding, which it was
prepared to do immediately.   The district court did not rule on the motion
at that time and appointed counsel to represent Volanty on the matter.


     Volanty later filed a supplemental motion for return of the seized
currency in which he reasserted his original claims and also argued that
the proper remedy to the due process violation was to order the money
returned to him.   He claimed that the government should not be allowed to
initiate a new proceeding because it had acted in bad faith and because
forfeiture of the currency would violate double jeopardy.


     On January 23, 1995, the district court entered an order denying
Volanty's supplemental motion to return the seized




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property.3    It held that Volanty's due process rights had been violated by
the original forfeiture proceeding and determined that the proper remedy
was   to   allow   the    government   to    begin   anew   and     to   file   forfeiture
proceedings in district court.              The court declined to discuss double
jeopardy, stating that the defendant could assert all available defenses
after a judicial forfeiture proceeding was initiated.4


      Volanty      argues    on   appeal    that   the   district    court      abused   its
discretion when it allowed the government to commence judicial forfeiture
proceedings instead of ordering the currency returned to him.                    He claims
that the government acted in bad faith when it mailed the forfeiture notice
to general delivery and that forfeiture of the currency would constitute
double jeopardy because he has already been convicted and punished for
related offenses.        The government does not dispute that the administrative
forfeiture should be set aside, but argues that it was appropriate for it
to be permitted to correct its error and to commence a judicial forfeiture
proceeding.


      When an administrative forfeiture is void for lack of notice, a
district court "must set aside the forfeiture Declaration and order DEA
either to return [the] property or commence judicial forfeiture in the
district court."         United States v. Woodall, 12 F.3d 791, 795 (8th Cir.
1993).     The parties agree that the district court has the discretion to
choose between the remedies and that its decision should be reviewed under
an abuse of discretion standard.




      3
      In a separate order on the same day, the district court
denied as moot Volanty's pro se motion. Volanty does not appeal
from that order.
      4
      The government filed a civil forfeiture action the day
after the district court's order was filed. The forfeiture
action remains pending.

                                             4
     Volanty first claims that return of his property is the required
remedy in this case because the government acted in bad faith.   The record
does not support his assertion, however.   The DEA attempted to notify the
defendant by mail and published notification in the newspaper.       At the
hearing on the motion for the return of the property, the government
admitted error and agreed to correct it by instituting new proceedings.
The district court noted that Volanty had given general delivery as his
address and that was the information forwarded to the DEA.    The court did
not err in declining to find bad faith on the part of the government.


     Volanty also argues that the district court abused its discretion by
allowing the commencement of a new forfeiture proceeding when forfeiture
of the currency would violate the double jeopardy clause of the Fifth
Amendment.   He claims that double jeopardy bars the government from seeking
forfeiture because he has already been punished in a criminal action for
the same offenses that would be the basis of the forfeiture action.
Multiple punishments may not be imposed for the same offense.        United
States v. Halper, 490 U.S. 435, 440 (1989).     Volanty asserts that civil
forfeiture of drug proceeds is not merely a remedial sanction because it
has "penal and prohibitory intent" similar to Montana's drug possession tax
which was held to constitute punishment.      See Department of Revenue of
Montana v. Kurth Ranch, 114 S. Ct. 1937, 1947 (1994) (state drug tax
constitutes punishment for purposes of double jeopardy analysis).   He also
argues that his criminal prosecution and the civil forfeiture action are
necessarily separate proceedings and therefore cannot both be pursued.


     The district court explicitly declined to rule on the merits of
Volanty's double jeopardy argument, stating that his claim could be raised
as a defense to any future forfeiture proceeding.   We agree that the issue
was raised prematurely and conclude that it was not an abuse of discretion
for the district court to require




                                     5
the defendant to raise it as a defense in the forfeiture proceeding.              See
Woodall, 12 F.3d at 795.       Double jeopardy is not typically addressed before
a case is even filed.        Once the new proceeding was initiated, Volanty was
simply in the same position as any other defendant asserting a double
jeopardy claim.


      The merits of Volanty's double jeopardy argument are not before us
at this time.      Because the factual record is not complete, the argument
should be addressed in the first instance by the district court in the
judicial    forfeiture    action.      The   court   must   consider   whether   civil
forfeiture of the currency would constitute punishment and whether the
separate criminal prosecution and civil forfeiture action in this case were
parts of a single coordinated prosecution.


      A    civil   penalty    may   constitute   punishment    for   double   jeopardy
purposes if it is not remedial in nature, but serves "only as a deterrent
or   retribution."       Halper, 490 U.S. at 449.            A civil forfeiture is
considered to be remedial if it is "rational[ly] relat[ed] to the goal of
compensating the government for its loss."           Id.    A determination that the
currency is drug proceeds may be relevant to whether its forfeiture
constitutes punishment.        See United States v. Clementi, 70 F.3d 997 (8th
Cir. 1995) (forfeiture of firearms under 924(d) is not punishment because
forfeiture of the fruits of illegal activity is rationally related to the
damages of that activity).           Here, the government has not yet had an
opportunity to establish a connection between the currency and the drug
related offenses, nor has Volanty had a chance to challenge any such
showing.


      Concurrent civil and criminal proceedings, based on the same facts,
do not violate the double jeopardy clause when the separate proceedings
take the form of a "single, coordinated prosecution."                United States v.
Smith, No. 95-1568, slip op. at 7, 1996 WL 34552 (8th Cir. January 31,
1996); but see United States v. $405,089.23,




                                             6
33 F.3d 1210 (9th Cir. 1994), amended on denial of reh'g en banc, 56 F.3d
41 (9th Cir. 1995), cert. granted, 116 S. Ct. 762 (1996).           To determine
whether both are part of a single prosecution requires examining "the
essence of the actions at hand by determining when, how, and why the civil
and criminal actions were initiated."       United States v. Millan, 2 F.3d 17,
20 (2d Cir. 1993), cert. denied, 114 S. Ct. 992 (1994).        The court must ask
"common-sense questions" such as "whether the government initiated its
parallel actions at, or very close to, the same time and whether there is
come evidence of coordination of the two matters that connects them in an
obvious way."   Smith, slip op. at 7.       The most important consideration is
whether   the   government   pursued   its    remedies   against   the   defendant
concurrently or filed a second action after it was dissatisfied with its
initial attempt to prosecute a particular crime.         Id.


     The judicial forfeiture proceeding is the appropriate forum for the
development of the facts relevant to Volanty's double jeopardy arguments.
Volanty   has already asserted his claims there as a defense to the
forfeiture action.


     In conclusion, we hold that the district court did not abuse its
discretion in denying Volanty's supplemental motion for the return of the
seized currency.   Accordingly, the order of the district court is affirmed.


     A true copy.


            Attest:


                   CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT




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