No. 95-345 and 95-346 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1995 UNITED STATES OF AMERICA, PETITIONER v. GUY JEROME URSERY UNITED STATES OF AMERICA, PETITIONER v. FOUR HUNDRED AND FIVE THOUSAND, EIGHTY-NINE DOLLARS AND TWENTY-THREE CENTS ($405,089.23) IN UNITED STATES CURRENCY, ET AL. ON WRITS OF CERTIORARI TO THE UNITED STATES COURTS OD APPEALS FOR THE SIXTH AND NINTH CIRCUITS REPLY BRIEF FOR THE UNITED STATES DREW S. DAYS, III Solicitor General Department of Justice Washington, D.C. 20530 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- TABLES OF AUTHORITIES Cases: Page Austin v. United States, 113 S. Ct. 2801 (1993) . . . . . . 6, 8, 12, 15 Bennis V. Michigan, 116 S. Ct. 994 (1996) . . . . 7, 8 Blockburger V. United States, 284 U.S. 299 (1932) . . . . 18 Bowsher v. Synar, 478 U.S. 714 (1986) . . . . 10 Breed V. Jones, 421 U.S. 519 (1975) . . . . 2 Callanan V. United States, 364 U.S. 587(1961) . . . . 13 Coffey V. United States, 116 U.S. 436 (1886) . . . . 9 Department of Revenue of Montana V. Kurth Ranch, 114 S. Ct. 1937 (1994) . . . . 3-4 Director, OWCP v. Greenwich Collieries, 114 S. Ct. 2251 (1994) . . . . 13 Dowling V. United States, 493 U.S. 342 (1990) . . . . 14 Gore V. United States, 357 U.S. 386 (1958) . . . . 8 Green V. United States, 355 U.S. 184 (1957) . . . . 8 J. W. Goldsmith, Jr Grant Co. V. United States, 254 U.S. 505 (1921) . . . . 8 Kennedy V. Mendoza-Martinez, 372 U.S. 144 (1963) . . . . 4 Kokkonen V. Guardian Life Ins. Co. of America, 114 S. Ct. 1673 (1994) . . . . 7 Lange, Ex parte, 85 U.S. (18 Wall.) 163 (1874) . . . . 3 Leszynsky, In re, 15 F. Cas. 397 (C. C.S.D.N.Y. 1879) (No. 8,279) . . . . 9 Marsh V. Chambers, 463 U.S. 783 (1983) . . . . 10 Metropolitan Stevedore Co. V. Rambo, 115 S. Ct. 2144 (1995) . . . . 7 Moskal V. United States, 498 U.S. 103 (1990) . . . . 13 North Star Steel Co. V. Thomas, 115 S. Ct. 1927 (1995) . . . . 13 Pittston Coal Group V. Sebben, 488 U.S. 105 (1988) . . . . 13 Richardson V. United States, 468 U.S. 317 (1984 ). . . . 8 Rutledge V. United States, No. 94-8769 (Mar. 27, 1996) . . . . 6, 18 SEC V. Bilzerian, 29 F.3d 689 (D.C. Cir. 1994) . . . . 17 SEC V. Blatt, 583 F.2d 1325 (5th Cir. 1978) . . . . 17 (I) ---------------------------------------- Page Break ---------------------------------------- II Cases-Continued: Page Schiro V. Farley, 114 S. Ct. 783 (1994) . . . . 14 Schmuck V. United States, 489 U.S. 705 (1989) . . . . 5-6 Serfass V. United States, 420 U.S. 377 (1975) . . . . 19 Shannon V. United States, 114 S. Ct. 2419 (1994 ).. . . 13 Staples V. United States, 114 S. Ct. 1793 (1994 ).... 4 Sun Oil Co. V. Wortman, 486 U.S. 717 (1988) . . . . 10 Texas American Oil Corp. V. Department of Energy, 44 F.3d 1557 (Fed, Cir. 1995) . . . . 17 The Palmyra, 25 U.S. (12 Wheat.) 1 (1827) . . . . 9 Tull V. United States, 481 U.S. 412 (1987) . . . . 17 United States V. Clementi, 70 F.3d 997 (8th Cir. 1995) . . . . 15 United States V. Curtiss-Wright Corp., 299 U.S. 304 (1936) . . . . 10 United States V. DiFrancesco, 449 U.S. 117 (1980 ) . . . . 19 United States V. Dixon, 113 S. Ct. 2849 (1993) . . . . 19 United States V. Felix, 503 U.S. 378 (1992) . . . . 6 United States v. Halper, 490 U.S. 435 (1989) . . . . 1, 3, 19 United States V. L.A. Tucker Truck Lines, Inc., 344 U.S. 33 (1952) . . . . 19 United States V. 92 Buena Vista Ave., 507 U.S. 111 (1993) . . . . 16 United States V. Olsen, 57 F. 579 (N.D. Cal. 1893) . . . . . . 9-10 United States V. One Assortment of 89 Firearms, 465 U.S. 354 (1984) . . . . 1, 4, 10, 15 United States V. One Distillery, 43 F. 846 (S.D. Cal. 1890), aff'd, 174 U.S. 149 (1899) . . . . 10 United States V. $184,505:01,72 F.2d 1160 (3d Cir. 1995) . . . . 17 United States V. Shabani, 115 S. Ct. 382 (1994) . . . . 18-19 United States V. Three Copper Stills, 47 F. 495 (D. Ky. 1890) . . . . 10 United States V. Tilley, 18 F.3d 295 (5th Cir.), cert. denied, 115 S. Ct. 573, 574 (1994) . . . . 15, 17 U.S. Bancorp Mortgage Co. V. Bonner Mall Part- nership, 115 S. Ct. 386 (1994) . . . . 7 Various Items of Personal Property v. United States, 282 U.S. 577 (1931) . . . . 2, 10 Whalen V. United States, 445 U.S. 684 (1980 ). . . . 18 Witte V. United States, 115 S. Ct. 2199 (1995) . . . . 5 ---------------------------------------- Page Break ---------------------------------------- III Constitution, statutes and rule: Page Us. Const.: Amend. V (Double Jeopardy Clause) . . . . 1, 2, 3, 5, 6, 8, 18, 19 Amend. VIII (Excessive Fines Clause) . . . . 7, 8 Act of July 31, 1789, ch. 5, 1 Stat. 29 . . . . 10 12,1 stat. 39 . . . . 9 25,1 Stat. 43 . . . . 9 34,1 Stat. 46 . . . . 9 Act of Sept. 1,1789, ch. 11, 35-36,1 Stat. 65 . . . . 10, 11 Act of August 4,1790, ch. 35,1 Stat. 145: 27,1 Stat. 163 . . . . 9 49,1 stat. 170 . . . . 9 60,1 Stat. 174 . . . . 9 Act of Dec. 31,1792, ch. 1, 3327-28,1 Stat. 298 . . . . 11 Act of Feb. 18,1793, ch. 8,1 Stat. 305: 30,1 Stat. 316 . . . . 11 32,1 Stat. 316 . . . . 11 Act of Mar. 1,1793, ch. 19, $3,1 Stat. 329 . . . . 11 Act of June 5,1794, ch. 50, 3,1 Stat. 383 . . . . 11 Act of Mar. 2,1799, ch. 22,1 Stat. 627: 50,1 Stat. 665 . . . . 9 69,1 Stat. 678 . . . . 9 82,1 Stat. 692 . . . . 9 Act of Mar. 2,1807, ch. 22,2 Stat. 426: 2, 2 Stat. 426 . . . . 11 3, 2 Stat. 426 . . . . 11 4, 2 Stat. 427 . . . . 11-12 7, 2 Stat. 428 . . . . 12 Act of Apr. 20,1818, ch. 91,3 Stat. 450 . . . . 11 Act of Mar. 3,1819, ch. 77, 5$4-5,3 Stat. 513-514. . . . . 12 Act of July 13, 1866, ch. 184, 14, 14 Stat. 151 (Rev. Stat. 3450 (1874)) . . . . 12 Act of July 20, 1868, ch. 186, 19, 15 Stat. 133 (Rev. Stat. 3305 (1874)) . . . . 12 Act of July 5,1884, ch. 220,23 Stat. 115: 2,23 stat. 115 . . . . 12 $10,23 Stat. 117 . . . . 12 ---------------------------------------- Page Break ---------------------------------------- Iv Statutes and rule Continued: Page Rev. Stat. (1874): 2873 . . . . 9 2874 . . . . 9 3049 . . . . 9 3082 . . . . 9 3257 . . . . 12 3281 . . . . 12 3451 . . . . 12 18 U.S.C. 981 (a) (1) . . . . 15 18 U.S.C. 3556 . . . . 13 21 U.S.C. 881 . . . . 7, 12, 13 21 U.S.C. 881 (a) (4) . . . . 7, 12 21 U.S.C. 881 (a) (6) . . . . 14, 16 21 U.S.C. 881 (a) (7) . . . . 4, 5, 7, 12 Fed. R. Crim. P. 31 (c) . . . . 5 Miscellaneous: Rufus Waples, Treatise on Proceedings In Rem (1882) . . . . . 10 1 C. Wright, Federal Practice & Procedure (2d ed. 1982) . . . . 2 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1995 No. 95-345 UNITED STATES OF AMERICA, PETITIONER v. GUY JEROME URSERY No. 95-346 UNITED STATES OF AMERICA, PETITIONER v. FOUR HUNDRED AND FIVE THOUSAND, EIGHTY-NINE DOLLARS AND TWENTY-THREE CENTS ($405,089.23 ) IN UNITED STATES CURRENCY, ET AL. ON WRITS' OF CERTIORARI TO THE UNITED STATES COURTS OF APPEALS FOR THE SIXTH AND NINTH CIRCUITS REPLY BRIEF FOR THE UNITED STATES Respondents and their amici approach the issues raised by these cases as if the Double Jeopardy Clause never existed before United States v. Halper, 490 U.S. 435 ( 1989). They construe that decision as having over- ruled, without comment, a unanimous decision rendered barely five years earlier finding the Double Jeopardy Clause "not applicable" to a civil forfeiture sanction, United States v. One Assortment of 89 Firearms, 465 U.S. 354, 362 ( 1984), and as having entirely displaced (1) ---------------------------------------- Page Break ---------------------------------------- 2 the traditional imposition of criminal punishment and civil in rem forfeiture- based on the same events, which this Court unanimously sustained against a double jeopardy attack in Various Items of Personal Property v. United States, 282 U.S. 577, 581 (1931). In respondents' view, either Congress must create novel hybrid proceedings in which civil and criminal cases are tried together under a single caption or prosecutors must use criminal for- feiture (which, unlike civil forfeiture, was entirely un- known in this country before 1970, see 1 C. Wright, Federal Practice & Procedure $125.1, at 389 (2d ed. 1982) ) whenever they seek to forfeit the property of a potential criminal defendant. Such a radical revision of how our justice system has operated since 1791 would require the most compelling justifications. Respondents' proposal instead arrives unsupported by doctrine or his- tory, and should accordingly be rejected. 1. Respondent Ursery does not address this Court's recognition that, as used in the Fifth Amendment, the term "jeopardy" refers to a specific danger: the risk of conviction that a defendant faces before a tribunal vested with jurisdiction to find him. guilty of a crime. See, e.g., Breed v. Jones,, 421 U.S. 519, 528 (1975). Nor does he expressly take issue with our submission that this Court's understanding of "jeopardy" rests on the unique role and consequences of criminal sanctions and on the Double Jeopardy Clause's historical origins in common-law pleas peculiar to the criminal process. He assumes instead that Halper overruled those cases and rejected that traditional understanding, because, in his view, Halper's conclusion that a civil action can violate the Clause necessarily rests on the conclusion that "the civil proceeding constitutes a second-i.e., a `double'- jeopardy." Ursery Br. 31; see also id. at 10; ACLU Br. 20 (noting that, after Halper, jeopardy "refers to [the] risk of any punitive governmental action"). That contention is incorrect, because it disregards the fact that Ha/per did not create the "multiple punish- ---------------------------------------- Page Break ---------------------------------------- 3 ments" doctrine. As we have explained (U.S. Br. 26-31), that doctrine already had a settled meaning when the Court invoked it in Halper. As applied to successive punishments, the doctrine was, and remains, a rule of finality for the "jeopardy" experienced as a result of a criminal conviction. Cf. ACLU Br. 20 n. 11 (conceding that a "central purpose" of the Clause is to protect "the finality of jury verdicts").' While Ursery argues that the logic of Halper requires recognition of a new concept of "civil" jeopardy, see Ursery Br. 32, he overlooks that multiple-punishments analysis has never entailed a show- ing of two "jeopardies. " See U.S. Br. 27-28. Rather, that analysis stems from Ex parte Lange, 85 U.S. (18 Wall ) 163 (1874), which involved only one criminal prosecution, and had been applied before Halper only to support two legal rules: ( 1 ) that a court, in a single proceeding, may not impose more punishment than the legislature intended, and (2) that following service of a criminal sentence, a court may not upset legitimate ex- pectations of finality by imposing a new sentence. Neither of those applications required a second "jeopardy"; and the same is true of Halper, which extended multiple Punishments analysis to cover a punitive civil sanction imposed after a criminal conviction. 1 Respondent "fares no better with his analysis of Depart- ment of Revenue of Montana V. Kurth Ranch, 114 S. Ct. ___________________(footnotes) 1 While Ursery faults our reading of Halper as lacking support on anything that "the Court said" in that case, his own interpreta- tion is able to explain Halper's repeated and explicit emphasis on the defendant's prior conviction only by dismissing it as "simply a reflection of the fact pattern in Halper." Ursery Br. 32. But the Halper Court made clear that the prior conviction had operative legal significance in that case by expressly stating that the "only proscription" established by the Court's ruling was against the imposition of a punitive civil judgment after the imposition of a "criminal penalty." Halper, 490 U.S. at 451; see id. at 448-449 (stating Court's holding). And Ursery makes no effort to respond to our doctrinal analysis, which shows how Halper developed from a prohibition against multiple punishments that applies only when there is a prior criminal conviction. ---------------------------------------- Page Break ---------------------------------------- 4 1937 (1994). That case does not establish that "when the government seeks and obtains a civil sanction[] the defendant may be placed in `jeopardy' sufficient to trigger double jeopardy protections." Ursery Br. 32-33. While Kurth Ranch began by asking whether the "tax" in that case "may violate the constitutional prohibition against successive punishments for the same offense," 114 S. Ct. at 1941, it concluded by holding that "[t]he proceeding Montana initiated to collect a tax on the possession of drugs was the functional equivalent of a successive crimi- nal prosecution that placed the Kurths in jeopardy a second time `for the same offence,' " id. at 1948 (em- phasis added). As we have explained (U.S. Br. 34), in light of that language-and the Court's conclusion that the tax "must be imposed during the first prosecution or not at all," 114 S. Ct. at 1948 (emphasis added)- Kurth Ranch is best understood as finding the Montana tax to be so inherently punitive that the State could not impose it at all outside the context of a criminal prose- cution. See, e.g., Kennedy V. Mendoza-Martinez, 372 U.S. 144 ( 1963). In any event, it is clear that in Kurth Ranch, as in Halper, the defendant had suffered a prior criminal judgment (i.e., a "jeopardy") to which a con- stitutional expectation of finality could attach. Ursery, in contrast, incurred no such judgment in the in rem forfeiture action. 2 ___________________(footnotes) 2 Ursery claims in passing (Br. 23-30) that 21 U.S.C. 881 (a) (7) is inherently penal under this Court's analysis in Kennedy v. Mendoza-Martinez, supra, such that he may claim the Double Jeop- ardy Clause's protection against multiple prosecutions. That claim is foreclosed by 89 Firearms, supra, which rejected it with respect to an identically worded forfeiture statute. Contrary to Ursery's claim (Br. 30), 89 Firearms cannot be distinguished on the ground that the statute at issue in that case sought to remove from circula- tion "potentially dangerous" firearms. While firearms are indeed po- tentially harmful (Staples V. United States, 114 S. Ct. 1793, 1800 (1994) ), "the fact remains that there is a long tradition of wide- spread lawful gun ownership by private individual in this coun- try" (id. at 1799) and therefore "owning a gun is usually licit and blameless conduct" (Id. at 1801), Thus, the "potential" for danger ---------------------------------------- Page Break ---------------------------------------- 5 Witte v. United States, 115 S. Ct. 2199 (1995), re- inforces the conclusion that a prior "jeopardy," under- stood as the risk of conviction for a criminal offense, remains an essential predicate for invoking the Double Jeopardy Clause. Witte rejected a double jeopardy claim precisely because the defendant had not faced a prior criminal prosecution for the offense for which he purport- edly was punished. Ursery seeks to explain Witte by sug- gesting (Br. 33-34 & n. 17 ) that Witte's first criminal sen- tence was authorized by the Guidelines, even if it also reflected a punitive enhancement for a different crime for which he was later separate] y prosecuted. That explana- tion does not distinguish this case, because everything the government did here was duly authorized by statute. Nor is it responsive to our basic point about Witte: that the Court's reasoning and judgment cannot be squared with respondent's view that the Court has abandoned the tradi- tional understanding of "jeopardy." Indeed, while Ursery ultimately asserts that Witte cannot mean what the Court's opinion says, because "such a reading * * * could not be squared with Halper or Kurth Ranch," Ursery Br. 34 n. 17, the more accurate conclusion is that Witte shows why Ursery's reading of Halper and Kurth Ranch is incorrect. The anomalous consequences of Ursery's notion that civil sanctions can give rise to "jeopardy" are illustrated by his claim (Br. 35-39) that his crime is a lesser- included offense of in rem forfeiture under 21 U.S.C. 881 (a) (7). The rules governing lesser-included offenses provide that a defendant may be convicted of any lesser offense that the jury finds proven when the jury does not convict on the greater offense. See Fed. R. Crim. P. 31 (c); Schmuck v. United States, 489 U.S. 705, 717-718 ___________________(footnotes) that Ursery concedes is sufficient to make forfeiture of firearms "plainly more remedial than punitive" (Ursery Br. 30) flows from use of those firearms in violation of the criminal laws, which is a traditional justification for forfeiting instrumentalities of crime generally. ---------------------------------------- Page Break ---------------------------------------- 6 ( 1989); see also Rutledge v. United States, No. 94-8769 (Mar. 27, 1996), slip op. 12-15 (when conviction for a greater offense is reversed on grounds that do not affect a lesser-included offense, a court generally may enter judgment on the lesser-included offense). It is mean- ingful to say that a criminal defendant is "in jeopardy" for lesser-included offenses whenever he is put to trial on a greater offense, because ordinarily a possible legal out- come of the proceeding is the entry of a judgment of con- viction for the lesser-included crime. That plainly is not true of the purported "jeopardy" that results from the institution of civil forfeiture proceedings; there is no possi- bility that the court, `upon finding the purported "addi- tional element" of the forfeiture "offense" not proven, could instead enter a judgment convicting the property claimant of a crime. Thus, both this Court's cases and a common-sense appraisal of the limited risks that Ursery actually faced in the forfeiture proceeding demonstrate that his double jeopardy claim is untenable. That acceptance of Ursery's claim would require, as his amici essentially concede (see ACLU Br. 6 n.2), the outright repudiation of a line of authority that this Court unanimously endorsed little over a decade ago in 89 Firearms simply adds to the heavy burden of justification that his claim faces in this Court. Compare United States v. Felix, 503 U.S. 378, 389 (1992). He has not met that burden. 2. Respondents dispute our submission that civil in rem forfeitures cannot be said to inflict "punishment" for purposes of the Double Jeopardy Clause. Respondents contend that our argument is inconsistent with Halper and Austin v. United States, 113 S. Ct. 2801 (1993), and that it would require the Court to "overrule[]" those cases (Ursery Br. 18; see also Arlt & Wren Br. 12). That is not so. A holding that the proceedings in these cases are constitutional does not require the Court to reject its holding in Halper that the "multiple punishments" doc- trine of double jeopardy law precludes a punitive civil ---------------------------------------- Page Break ---------------------------------------- 7 sanction after a criminal defendant's conviction, or its holding in Austin that the Excessive Fines Clause of the Eighth Amendment applies to in rem forfeitures. Our opening brief made two points relevant to respond- ents' claim that civil forfeitures under 21 U.S.C. 881 are categorically punitive. U.S. Br. 38-40. First, we noted that a single passage in Halper (which Austin later reiterated ) suggested that a sanction that acts in any part as a deterrent must be viewed as "punishment," but we explained that that passage is unjustifiably broad and unnecessary to the holding in either Halper or Austin. Second, we noted that Austin expressly recognized that it did not make any difference, in the context of an Eighth Amendment claim, whether all forfeitures under 21 U.S.C. 881 (a)(4) and (a)(7) are categor- ically deemed to be "punishment," since only "excessive" forfeitures would be barred. Thus, two key legal proposi- tions on which respondents base their claims that civil forfeiture under 21 U.S.C. 881 is always punishment for double jeopardy purposes are dicta. An argument that the Court should disavow those propositions cannot fairly be read as seeking the overruling of Halper and Austin; it merely "invok[es] [the Court's] customary refusal to be bound by dicta." U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 115 S. Ct. 386, 391 ( 1994); see also Metropolitan Stevedore Co. v. Rambo, 115 S. Ct. 2144, 2149 ( 1995); Kokkonen V. Guardian Life Ins. Co. of America, 114 S. Ct. 1673, 1676 (1994). This Court's most recent forfeiture decision, Bennis v. Michigan, 116 S. Ct. 994 ( 1996), shows that respondents' reading of Halper and Austin is overbroad. Bennis rejected the claim that an innocent owner has a consti- tutional defense to the forfeiture of property that "facili- tated and was used in criminal activity." Id. at 1001. In so doing, the Court made clear that "forfeiture * * * serves a deterrent purpose distinct from any punitive purpose," id. at 1000-i.e., that deterrence itself is not ---------------------------------------- Page Break ---------------------------------------- 8 punitive and that a deterrent purpose is not sufficient to transform a forfeiture into "punishment." The Court thus declined to depart from its "longstanding practice" (id. at 1001 ) in civil forfeiture cases, a practice that is "too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced; ibid. (quoting J. W. Goldsmith, Jr Grant Co. v. United States, 254 U.S. 505, 511 (1921)). That long common-law lineage of civil forfeitures of property used to commit or facilitate crimes is especially significant in assessing respondents' claims of former jeop- ardy, because "[i]n applying a provision like that of double jeopardy, which is rooted in history and is not an evolving concept * * *, a long course of adjudication in this Court carries impressive authority." Gore V. United States, 357 U.S. 386, 392 ( 1958); see also Richardson V. United States, 468 U.S. 317, 325-326 (1984); Green V. United States, 355 U.S. 184, 199 (1957) (Frankfurter, J., dissenting). Austin concluded that civil forfeitures of instrumentalities of crime always have been understood as embodying an element of punishment, which is suffi- cient to bring the Eighth Amendment into play. 113 S. Ct. at 2807-2809. Respondents, however, cannot show that those forfeitures ever have been deemed sufficiently punitive to trigger double jeopardy protections. Indeed, they do not cite a single case from this Court that has so held. That failure is telling, because the Fifth Amendment has been on the books since 1791 and laws that author- ized both a civil forfeiture of property used to commit crimes and a criminal prosecution of the property's owner were among the earliest statutes enacted by Congress. 3 ___________________(footnotes) 3 Austin relied on the first comprehensive customs statute, enacted two months before Congress proposed the Bill of Rights to the States, to demonstrate that the Framers of the Eighth Amendment considered in rem forfeiture, at least in part, as a punitive measure. 113 S. Ct. at 2807-2808. The provision cited by Austin forbade unloading goods at night or without a permit. It provided not only for criminal punishments for any ship master who permitted such ---------------------------------------- Page Break ---------------------------------------- 9 Indeed, in one of its earliest forfeiture decisions, this Court noted (in rejecting, ironically, the claim that the government was required to prosecute criminally before it could obtain an in rem forfeiture) the accepted practice of imposing both sanctions: Many cases exist, where there is both a forfeiture in rem and a personal penalty. But in neither class of cases has it ever been decided that the prosecu- tions were dependent upon each other. [Rather,] the practice has been, and so this Court understand the law to be, that the proceeding in rem stands independent of, and wholly unaffected by any crim- inal proceeding in personam. The Palmyra, 25 U.S. (12 Wheat.) 1, 14-15 (1827) (Story, J.); see also In re Lezynsky, 15 l?. Cas. 397, 400-401 (C. C. S.D.N.Y. 1879) (No. 8,279) (noting that early statutes frequently called for criminal prosecution of persons whose property was also civilly for feitable).4 ___________________(footnotes) unloading (he was required to pay a fine and was barred from holding federal office or employment, and in addition his name was to be published "in the public gazette of the State in which he resides, within twenty days after * * * conviction"), but it also mandated forfeiture in rem of the offending property. See Act of July 31, 1789, ch. 5, 12, 1 Stat. 39. That provision was hardly an anomaly. See 25, 1 Stat. 43 (monetary fine on persons con- victed of knowingly concealing or buying illegally imported goods in addition to the in rem forfeiture of the goods) ; 34, 1 Stat. 46 (up to six months' imprisonment on persons convicted of re-landing goods entitled to a drawback in addition to the in rem forfeiture of the goods, the vessels carrying them, and any boats used in loading and unloading them). Similar provisions were included in customs statutes enacted after the Bill of Rights was ratified. See Act of Aug. 4, 1790, ch. 35, 27, 49, 60, 1 Stat. 163, 170, 174; Act of Mar. 2, 1799, ch. 22, 50, 69, 82, 1 Stat. 665, 678, 692. Those provisions were codified in substantially similar form in Sections 2873, 2874, 3049 and 3082 of the Revised Statutes (1874) . 4 No question concerning the validity of such "dual" enforcement schemes was even raised until Coffey V. United States, 116 U.S. 436 (1886), held that an acquittal in a criminal trial precluded relitiga- tion of the same facts in a civil in rem proceeding. See United ---------------------------------------- Page Break ---------------------------------------- 10 The fact that civil forfeiture has never been thought sufficiently punitive to raise double jeopardy concerns when Congress provides for it in addition to the criminal prosecution of the property's owner "goes a long way in the direction of proving the presence of unassailable ground for the constitutionality of the practice." United States v. Curtiss-Wright Corp., 299 U.S. 304, 327-328 (1936); see also Sun Oil Co. v. Wortman, 486 U.S. 717, 728 n.2 (1988); Bowsher V. Synar, 478 U.S. 714, 723-724 & n.3 (1986); Marsh V. Chambers, 463 U.S. 783, 790-792 (1983 ). Indeed, this Court unanimously rejected a double jeopardy claim comparable to that of re- spondents in Various Items of Personal Property V. United States, 282 U.S. 577, 581 (1931 ), see U.S. Br. 21-a decision that respondents sub silentio would apparently have this Court overrule. Amicus ACLU attempts to downplay the significance of the historical record by asserting that early in rem forfeiture statutes applied only to illegally imported mer- chandise, the equivalent of forfeiting illegal contraband. ___________________(footnotes) States v. Olsen, 57 F. 579, 584-585 (N.D. Cal. 1893) (discussing Coffey and noting that "until recently no question has been raised as to the right of the government to proceed in one action for the forfeiture of the offending thing, and in another for the punish- ment of the offender") ; see also Rufus Waples, Treatise on Proceed- ings In Rem 21, at 23-24 (1882). Coffey was ambiguous on the extent to which its conclusion was based on double jeopardy law, see 89 Firearms, 465 U.S. at 358, 361, and the lower courts contin- ued to adhere to the view that an in rem forfeiture of property and the criminal prosecution of its owner were not barred by double. jeopardy. See, e.g., United States v, Three Copper Stills, 47 F. 495, 499 (D. Ky. 1890) ("[t]here is no case known to me which decides that [double jeopardy] includes a proceeding in vein") ; Olsen, 57 F. at 584-585; but see United States V. One Distiller, 43 F. 846, 853 (S.D. Cal. 1890) (relying in part on Coffey to hold that gov- ernment could not bring both civil forfeiture action and criminal prosecution), aff'd on other grounds, 174 U.S. 149, 152 (1899). This Court expressly overruled Coffey in 89 Firearms, where it acknowl- edged that "for nearly a century" Coffey's "analytical underpin- nings * * * ha[d] been recognized as less than adequate." 465 U.S. at 361. ---------------------------------------- Page Break ---------------------------------------- 11 ACLU Br. 11, 22; see also Ursery Br. 29-30. As is clear from the Act of July 31, 1789, however, those stat- utes frequently required the forfeiture of the boats and vessels that facilitated the unlawful activity in addition to the merchandise itself. Nor were the early in rem for- feiture provisions limited to customs laws. From 1789 to 1819, multi-faceted enforcement schemes, employing in personam penalties in conjunction with in rem forfei- ture, were used in statutes that regulated the registration of vessels; 5 required the licensing of vessels employed in coastal trade and fisheries;' prohibited trade with Indian tribes without a license;' penalized the outfitting and arming of vessels intended to be used in the service of a foreign state; 8 outlawed the importation of slaves from foreign countries;' and criminalized acts of pi- ___________________(footnotes) 5 See Act of Sept. 1, 1789, ch. 11, 35-36, 1 Stat. 65 (providing for the forfeiture of any vessel using a fraudulent certificate of registry and penalizing the person who committed the fraud), reenacted in Act of Dec. 31, 1792, ch. 1, $$27-28, 1 Stat. 298. 6 See Act of Feb. 18, 1793, ch. 8, 30, 32, 1 Stat. 316 (provid- ing for the forfeiture of any vessel, as well as its cargo, with a forged or altered license and penalizing the person who falsified the license ). 7 Act of Mar. 1, 1793, ch. 19, 3, 1 Stat. 329 (imposing fine or imprisonment, or both, on any person attempting to trade with Indian tribes without a license and providing for the forfeiture of all merchandise in that person's possession). 8 See Act of June 5, 1794 (the "Neutrality Act"), ch. 50, 3, 1 Stat. 383 (in addition to forfeiture of the vessel and all materials and ammunition "pro cured for the building and equipment thereof ," "every such person so offending shall upon conviction be adjudged guilty of a high misdemeanor"). 9 See Act of Mar. 2, 1807, ch. 22, 2, 2 Stat. 426 (any ship or vessel fitted out for the importation of slaves from foreign countries "shall be forfeited to the United States, and shall be liable to be seized, prosecuted, and condemned in any of the circuit courts or district courts, for the district where the said ship or vessel may be found or seized") ; 3, 2 Stat. 426 (any person who so fits out a vessel, knowing it to be used for that purpose, shall "forfeit and pay twenty thousand dollars" ). See also 4, 2 Stat. 427 (any per- ---------------------------------------- Page Break ---------------------------------------- 12 racy. 10 Similar provisions were commonly found in later statutes regulating the taxation of distilled spirits 11 and banning the importation of immigrant laborers. 12 Ursery and amicus ACLU attempt to recast Austin as holding that 21 U.S.C. 881 always inflicts "punishment," even if other forfeitures of property used to commit crimes generally would not be punitive. See Ursery Br. 22-23; ACLU Br. 11-17. That turns Austin on its head. While Austin did examine specific features of 21 U.S.C. 881(a) (4) and (a) (7), it did so only to ascertain whether anything in the text or history of those provi- ___________________(footnotes) son who takes a slave on board his ship with the intent to sell the slave in the United States shall forfeit and pay five thousand dollars, and the ship and all of its cargo shall be liable for seizure) ; 7, 2 Stat. 428 (any vessel caught with a slave on board within United States waters in violation of the Act shall be forfeited, along with all of its cargo and effects, and the captain, master, or commander of the vessel shall be subject to prosecution for a high misde- meanor). Similar provisions were reenacted in the Act of Apr. 20, 1818, ch. 91, 3 Stat. 450. 10 See Act of Mar. 3, 1819, ch. 77, 45, 3 Stat. 613-514 (punish- ing acts of piracy on the high seas with death and providing for the forfeiture, in any court having admiralty jurisdiction, of any vessel involved in piratical aggression). 11 See, e.g., Act of July 13, 1866, ch. 184, 14, 14 Stat. 151 (providing for in rem forfeiture of distilled spirits-as well as any materials, utensils, or vessels used in their making-that are removed or concealed with the intent to defraud the revenue and imposing fine on any persons concerned in such intentional removal or concealment (codified at Rev. Stat. 3450 (1874)) ; Act of July 20, 1868, ch. 186, 19, 15 Stat. 133 (imposing fine and imprisonment on any person who makes a false entry in books with intent to defraud the revenue and providing for in rem forfeiture of the distillery, distilling apparatus, the tract of land on which it stands, and all personal property on the premises used in the distilling business) (codified at Rev. Stat. 3305 (1874) ). See also Rev. Stat. 3257, 3281 & 3451. 12 See Act of July 5, 1884, ch. 220, 2, 10, 23 Stat. 115, 117 (providing that vessel may be libelled if vessel master knowingly transports Chinese laborers in violation of the Act and providing that master shall be guilty of a misdemeanor). ---------------------------------------- Page Break ---------------------------------------- 13 sions "contradict[ed] the historical understanding of for- feiture as punishment." 113 S. Ct. at 2810. The Court concluded that the legislative background of 21 U.S.C. 881 did not dispel what the Court believed always has been true of all forfeitures of property used in the com- mission of crime-that they "historically have been under- stood, at least in part, as punishment." 113 S. Ct. at 2810. In light of the Court's assimilation of 21 U.S.C. 881 (a) (4) and (a) (7) to the traditional understanding of provisions forfeiting property used to commit crimes, Austin cannot now be turned into a special rule for narcotics forfeiture cases. Amicus ACLU argues that forfeitures of instrumentali- ties under Section 881 do not serve the traditional aims of that in rem remedy, because "supposedly remedial ob- jectives are nowhere mentioned in the legislative history." Br. 12. An Act of Congress, however, is not deemed to serve only those objectives that are described in its legisla- tive history. See Pittston Coal Group V. Sebben, 488 U.S. 105, 115 (1988 ); see also Moskal V. United States, 498 U.S. 103, 111 (1990 ). Instead, Congress is pre- sumed to know the law, see Callanan V. United States, 364 U.S. 587, 594 (1961 ), and when it enacts statutes that invoke settled legal concepts, it ordinarily must be under- stood to have adopted those concepts. See, e.g., Director, OWCP V. Greenwich Collieries, 114 S. Ct. 2251, 2256- 2257 ( 1994); see also Shannon V. United States, 114 S. Ct. 2419, 2425 (1994). Thus, by enacting an in rem remedy with a long-standing lineage and recognized ra- tionale, Congress subscribed to the traditional aims of that remedy and expect[ed] its enactment] to be inter- preted in conformity with them." North Star Steel Co. v. Thomas, 115 S. Ct. 1927, 1930 (1995). No argument advanced by the ACLU establishes otherwise. 13 ___________________(footnotes) 13 The in rem label, of course, is not dispositive of the constitu- tional analysis. See ACLU Br. 11. But whether a forfeiture stat- ute would be recognized as remedial by the Framers turns on whether it serves the purposes of the early forfeiture statutes that ---------------------------------------- Page Break ---------------------------------------- 14 Ursery also argues (Br. 24-25), that the forfeiture of his property should be deemed "punishment" for double jeopardy purposes under a Halper case-by-case analysis. That argument is unsound because it relies on a "pre- sumption" (Br. 24) in Ursery's favor. Respondent, how- ever, is the party asserting former jeopardy, and he is required affirmatively to establish his entitlement to that defense. See, e.g., Schiro v. Farley, 114 S. Ct. 783, 791- 792 ( 1994); Dowling v. United States, 493 U.S. 342, 350 ( 1990). He has failed to show that the civil sanc- tion in the forfeiture action bears such a lack of propor- tion to the harms resulting from his multi-year marijuana- manufacturing operation that it must be branded as punitive. See U.S. Br. 46. 14 ___________________(footnotes) were familiar to the Framers. As this Court's recent decision in Bennis shows, the correct analysis `does not turn, as amicus sug- gests (see ACLU Br. 12, 16), on purely formal matters, such as whether forfeiture was available at common law for the particular violation of law, Bennis recognized that, for constitutional pur- poses, the remedial ends of forfeiture can be advanced even in a civil proceeding in personam. Nor does the correct analysis depend on whether Congress has provided for an analogous remedy as part of a criminal sentence, as it did when it enacted criminal forfeiture statutes. Congress has also provided that criminal sentences may require the defendant to pay restitution to his victims, see 18 U.S.C. 3556, yet no one would suggest that the availability of that remedy as part of a criminal sentence necessarily renders the goal of. victim compensation inherently punitive. 14 For the same reason, Ursery errs in asserting that, as a factual matter, the forfeiture action and the prosecution were based on the came offense. See Ursery Br. 40-42. We do not, of course, dispute the proposition that a single criminal offense can- not be broken down into separate "theories"; that assertion, how- ever, begs the question of what the unit of prosecution is, and Ursery cannot seriously contend that growing marijuana over several years, season in and season out, constitutes a single crime of manufacturing marijuana. Because the forfeiture complaint alleged that respondent did precisely that, he cannot sustain his burden of showing that the consent judgment necessarily rests on the manufacturing offense for which he was criminally prose- cuted. Compare Schiro v. Farley, 114 S. Ct. at `792. ---------------------------------------- Page Break ---------------------------------------- 15 3. Respondents Arlt and Wren argue that the forfei- ture of their narcotics proceeds under 21 U.S.C. 881(a) (6) constituted "punishment." As we explained in our opening brief, however, separating a criminal from the proceeds of his crimes cannot fairly be characterized as "punishment." 15 Arlt and Wren dispute that conclu- sion (Br. 16-31), claiming that the forfeiture of such proceeds amounts to the "taking of lawful property" (Br. 19) for a punitive purpose by the government. In sup- port of that claim, they note that proceeds of narcotics trafficking represent not only the profits of that activity but also "some investment" of legitimate "capital and of labor in the economic endeavor." Br. 30. The proceeds of drug trafficking, however, are not "lawful" property. That conclusion becomes apparent when respondents' activities are broken down into their component parts. Arlt and Wren invested capital and labor in the purchase and production of contraband; they then sold that contraband to obtain the properties that are the subject of this forfeiture action. They concede (Br. 27) that, notwithstanding their investment of time and legitimate capital, the contraband could have been forfeited without imposing punishment on them. See Austin, 113 S. Ct. at 2811; 89 Firearms, 465 U.S. at 364, It follows that they have no greater right to possess the proceeds of the sale of that contraband; indeed, the fact that the government seeks to forfeit proceeds instead of contraband is a fortuitous result of the point at which the authorities interrupted respondents' criminal venture. Simply put, capital invested in illegal activity loses its ___________________(footnotes) 15 Respondents assert ( Arlt & Wren Br. 23-24) that the assets forfeited from them constituted more than the proceeds of illegal activity. The district court's findings of fact and conclusions of law, however, demonstrate that the court found that all of the defendant properties constituted the proceeds of respondents' illegal methamphetamine trade. See 95-346 Pet. App. 55a-66a. Only after reaching that conclusion did the court consider whether the defend- ant properties also were subject to forfeiture under 18 U.S.C. 981 (a) (1) as property "involved in" money laundering violations. ---------------------------------------- Page Break ---------------------------------------- 16 legitimate character: the labor involved in an illegal en- terprise is not "honest labor" that is entitled to societal recognition, and the owner of property from the sale of drugs "has no reasonable expectation that the law will protect, condone, or even allow his continued possession of such proceeds." United States v. Tilley, 18 F.3d 295, 300 (5th Cir.), cert. denied, 115 S. Ct. 573, 574 ( 1994). See also United States v. Clementi, 70 F.3d 997, 1000 (8th Cir. 1995). Arlt and Wren maintain (Br. 26-28) that the for- feiture of proceeds constitutes punishment because the owner of property derived from a drug transaction may validly transfer the property to a bona fide purchaser or an innocent donee. See United States V. 92 Buena Vista Ave., 507 U.S. 111, 127 (1993 ) (plurality). The statu- tory innocent owner defense, however, depends on a showing of the transferee's lack of knowledge of the illegal source of the funds; it does not presuppose a freestanding lawful right to possess such proceeds in the transferor}' See 21 U.S.C. 881 (a) (6). - Recognition of that defense accommodates and protects routine and good faith com- mercial activity. It does not change the fact that the illegal proceeds themselves are simply a substitute for the contraband that produced them. Finally, there is also no substance to respondents' contention (Arlt & Wren Br. 25-26) that the forfeiture of drug proceeds is punitive because such forfeitures are not intended to provide restitution to a victim but in- ___________________(footnotes) 16 Respondents' hypothetical (Br. 28) in which a person uses a $10,000 bank loan to buy cocaine misses the mark for the same reason. Although the $10,000 constitutes "money[;] * * * intended to be furnished * * * in exchange for a controlled substance" and thus would be subject to forfeiture under Section 881 (a) (6), the bank would be entitled to assert a statutory innocent owner defense against a forfeiture action brought against the money. Moreover, because this case involves "proceeds traceable" to a drug trans- action, and not money intended to be furnished for such an exchange, respondents' hypothetical has little bearing on the facts of this case. ---------------------------------------- Page Break ---------------------------------------- 17 stead to repay the government for "all of society's costs of drug abuse." The forfeiture of drug proceeds is re- medial because it deprives a wrongdoer of property that he did not lawfully obtain. Thus, it is similar to dis- gorgement, which is a remedial measure that does not invariably result in restitution to the wrongdoer's victims. See Texas American Oil Corp. v. Department of Energy, 44 F.3d 1557, 1569-1570 (Fed. Cir. 1995) (en bane) (disgorgement is a remedial measure distinct from resti- tution); SEC V. Bilzerian, 29 F.3d 689, 696 (D.C. Cir. 1994 ) (disgorgement is remedial whether victims of wrongdoing are private citizens or government); SEC v. Blatt, 583 F.2d 1325, 1335 (5th Cir. 1978) ("The pur- pose of disgorgement is not to compensate the victims of the fraud, but to deprive the wrongdoer of his ill-gotten gain"). See also Tull v. United States, 481 U.S. 412, 422-423 ( 1987) (contrasting a requirement that a de- fendant "disgorge profits," which is equitable in nature, with a statutory requirement intended to inflict "punish- ment" ). The bank robber who is arrested as he exits the bank does not acquire immunity from prosecution when the stolen money is seized from him, irrespective of whether the money is ultimately returned to the bank. Indeed, if the government were to keep the money, its actions might be wrongful as to the bank, but they would not confer any constitutional rights on the robber.17 ___________________(footnotes) 17 Proceeds forfeitures also serve the remedial purposes of Com- pensating the government for the costs of investigating and prose- cuting the underlying offenses and of defraying the societal cost of drug abuse. See, e.g., United States v. $184,505.01, 72 F.3d 1160, 1168-1169 (3d Cir. 1995) ; Tilley, 18 F.3d at 299-300. But because the forfeiture of illegally obtained property will always be directly proportional to the remedial purpose of disgorging illegal gains and preventing unjust enrichment, recourse to its other remedial purposes is not necessary to find that the forfeitures at issue in $405,089.23 are not punitive. Contrary to respondent' contention (Arlt & Wren Br. 25), therefore, the government need not support the forfeiture of illegal proceeds by establishing its costs of its investigation and prosecution of the underlying offenses. ---------------------------------------- Page Break ---------------------------------------- 18 4. Respondents defend the Sixth and Ninth Circuits' conclusion that forfeiture is a greater "offense" of the crimes that give rise to the forfeiture. See Arlt & Wren Br. 44-48; Ursery Br. 35-39. As we have explained, that characterization is anomalous, because the two "offenses" lack the characteristics ordinarily associated with greater and lesser offenses. That anomaly is not lessened by respondents' attempt to analogize the forfeiture "offense" to felony-murder. The Court's conclusion that felony- murder is the "same offense" under Blockburger v. United States, 284 U.S. 299 (1932), as the underlying felony flows from its characterization of felony-murder as nothing more than an aggravated form of that felony. See Whalen v. United States, 445 U.S. 684, 694 ( 1980) (double jeopardy analysis of felony-murder is the same as if the legislature "had separately proscribed the six different species of felony murder under six statutory provisions"). The fact that a State has a single felony-murder statute that incorporates all qualifying felonies, rather than a separate aggravation clause in each statute that defines a qualifying felony, has been deemed insufficient to change that analysis. That analysis cannot be extended, however, to characterize a civil sanction as an aggravated form of a serious criminal offense. 5. Respondents argue that the parallel civil and crimi- nal actions at issue in these cases cannot be the "same proceeding" for purposes of the multiple-punishments doctrine. They argue that the record in Kurth Ranch reflected several parallel cases against the taxpayers and yet that did not preclude the Court's conclusion that one of those proceedings_ violated the Double Jeopardy Clause. See Ursery Br. 45; Arlt & Wren Br. 39-40. That point, however, was not briefed or argued in Kurth Ranch, and therefore that case "is a singularly unlikely source for a holding" (Rutledge V. United States, supra, slip op. 11 n. 13 ) that parallel civil and criminal actions can never be the same proceeding for double jeopardy purposes. See United States V. Shabani, 115 S. Ct. 382, 386 ---------------------------------------- Page Break ---------------------------------------- 19 ( 1994) ("[questions which `merely lurk in the record' are not resolved, and no resolution of them may be in- ferred" ); see also United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33,38 (1952). As a matter of doctrine, respondents' reliance on the formal existence of two proceedings is not sufficient to establish the existence of separate actions for double jeopardy purposes. See United States v. DiFrancesco, 449 U.S. 117 (1980) (upholding government sentencing appeals). Rather, as DiFrancesco indicates, a double jeopardy claimant must demonstrate an invasion of a legitimate expectation of finality in his sentence. A pro- ceeding is not impermissible successive for purposes of the multiple-punishments doctrine unless it defeats that expectation. Respondents have no reasonable argument that the second proceeding defeated any legitimate expec- tation of finality; nor can they sustain a claim that the abuse against which the Double Jeopardy Clause guards (i.e., the institution of a second proceeding "because [the government] is dissatisfied with the sanction obtained in the first proceeding," Halper, 490 U.S. at 451 n. 10 ) is present. Instead, they offer an array of policy arguments and "rigid, mechanical" tests (Serfass v. United States, 420 U.S. 377, 390 ( 1975)) that they believe will better serve the "purposes" of the Double Jeopardy Clause. See Arlt & Wren Br. 34-36; Ursery Br. 44-47. Those purposes, however, "are more likely to be honored by following longstanding practice than by following intui- tion." United States v. Dixon, 113 S. Ct. 2849, 2863 n. 15 (1993 ). In challenging the institution of parallel civil and criminal proceedings, respondents have failed to offer a credible basis for departing from the practice that our Nation has followed for the last 200 years. * * * * ---------------------------------------- Page Break ---------------------------------------- 20 For the foregoing reasons and those stated in our opening brief, the judgments of the courts of appeals should be reversed. Respectfully submitted. DREW S. DAYS, III Solicitor General APRIL 1996 * U. S. GOVERNMENT PRINTING OFFICE: 1996 405017 40107 ---------------------------------------- Page Break ---------------------------------------- No. 95-345 and 95-346 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1995 UNITED STATES OF AMERICA, PETITIONER v. GUY JEROME URSERY UNITED STATES OF AMERICA, PETITIONER v. FOUR HUNDRED AND FIVE THOUSAND, EIGHTY-NINE DOLLARS AND TWENTY-THREE CENTS ($405,089.23) IN UNITED STATES CURRENCY, ET AL. ON WRITS OF CERTIORARI TO THE UNITED STATES COURTS OD APPEALS FOR THE SIXTH AND NINTH CIRCUITS BRIEF FOR THE UNITED STATES DREW S. DAYS, III Solicitor General JOHN C. KEENEY Acting Assistant Attorney General MICHAEL R. DREEBEN Deputy Solicitor General NIGUEL A. ESTRADA Assistant to the Solicitor General KATHLEEN A. FELTON JOSEPH DOUGLAS WILSON Attorneys Department of Justice Washington, D.C. 20530 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED 1. In No. 95-345, the question presented is whether the Double Jeopardy Clause of the Fifth Amendment prohibits respondent's criminal prosecution for manu- facturing marijuana because the government ob- tained a consent judgment in a civil action that sought the forfeiture of respondent's property on the ground that it had been used to facilitate drug activities. 2. In No. 95-346, the question presented is whether the Double Jeopardy Clause prohibits a civil proceed- ing for the in rem forfeiture of property alleged to be the proceeds of narcotics and money laundering activities where the owners of the property were prosecuted for, and convicted of, narcotics and money laundering crimes. (I) ---------------------------------------- Page Break ---------------------------------------- II PARTIES TO THE PROCEEDINGS The petitioner-k both eases is the United States of America. The respondent in No. 95-345 is Guy Jerome Ursery. The respondents in No. 95-346 are Charles Wesley Arlt, James Wren, Payback Mines, and the property listed in the caption to the final judgment of forfeiture, 95-346 Pet. App. 75a-77a. ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinions below . . . . 1 Jurisdiction . . . . 2 Constitutional and statutory provisions involved . . . . 2 Statement . . . . 2 Summary of argument . . . . 10 Argument: The parallel criminal convictions and civil in rem forfeitures in these cases did not violate respond- ents' rights under the Double Jeopardy Clause of the Fifth Amendment . . . . 16 A. In rem forfeiture is a civil, remedial sanction that does not implicate the Double Jeopardy Clause's prohibition of multiple prosecutions . . . . 16 B. The courts below misconstrued Halper, and this Court's decisions since Halper, by failing to recognize the limits of this Court's "multiple punishments" cases . . . . 26 C. The in rem civil forfeitures in these cases did not impose "punishment" for purposes of the multiple punishments inquiry. . . . 36 D. If civil in rem forfeiture amounts to an "of- fense" for which respondents were placed in jeopardy, it is not the "same offense" as the crimes for which they were prosecuted . . . . 50 E. If respondents were "punished" by the in rem civil forfeiture proceedings for the same of- fenses that led to their criminal convictions, that punishment occurred in the "same proceed- ing" as the punishment imposed by the criminal Judgments . . . . 54 Conclusion . . . . 59 (III) ---------------------------------------- Page Break ---------------------------------------- Iv TABLE OF AUTHORITIES Cases: Page Abney v. United States, 431 U.S. 651 (1977) . . . . 18 Albernaz V. United States, 450 U.S. 333 (1981) . . . . 50 Allen V. Illinois, 478 U.S. 364 (1986) . . . . 19 Ashe V. Swenson, 397 U.S. 436 (1970) . . . . 31 Austin V. United States, 113 S. Ct. 2801 (1993) . . . . passim Bell V. Wolfish, 441 U.S. 520 (1979) . . . . 38, 39, 42 Benton V. Maryland, 395 U.S. 784 (1969 ) . . . . 18 Blockburger V. United States, 284 U.S. 299 (1932) . . . . 14, 50, 53 Boyd V. United States, 116 U.S. 616 (1886) . . . . 41 Bozza V. United States, 330 U.S. 160 (1947) . . . . 26 Bradley, In re, 318 U.S. 50 (1943) . . . . . 27 Breed v. Jones, 421 U.S. 519 (1975) . . . . 17, 18 Brown V. Ohio, 432 U.S. 161 (1977) . . . . 50, 53 C.J. Hendry Co. V. Moore, 318 U.S. 133 (1943) . . . . 21 Calero-Toledo V. Pearson Yacht Leasing Co., 416 U.S. 663 (1974) . . . . 21, 22-23, 43, 44 Caplin & Drysdale, Chtd. V. United States, 491 U.S. 617 (1989) . . . . 47 Crist V. Bretz, 437 U.S. 28 (1978) . . . . 17 Crosby V. United States, 506 U.S. 255 (1993) . . . . 57 Department of Revenue of Montana V. Kurth Ranch, 114 S. Ct. 1937 (1994) , . . . . 9, 10, 25, 31, 33, 34, 39, 42, 45 Dobbins's Distillery v. United States, 96 U.S. 395 (1878) . . . . 21, 44-45 Grady V. Corbin, 495 U.S. 508 (1990) . . . . 16 Green V. United States, 355 U.S. 184 (1957) . . . . 16, 18 Helvering V. Mitchell, 303 U.S. 391 (1938) . . . . 21, 22, 34 Iannelli V. United States, 420 U.S. 770 (1975) . . . . 50 Jeffers v. United States, 432 U.S. 137 (1977) . . . . . 58 Jones v. Thomas, 491 U.S. 376 (1989) . . . . 27 Justices of Boston Municipal Court V. Lydon, 466 U.S. 294 (1984) . . . . 56, 57 Kennedy V. Mendoza-Martinez, 372 U.S. 144 (1963) . . . . 11, 19, 20, 23 Kepner V. United States, 195 U.S. 100 (1904) . . . . 17 Kercheval v. United States, 274 U.S. 220 (1927) . . . . 36 Lange, Ex parte, 85 U.S. (18 Wall.) 163 (1873) .. . . 11, 26, 27 ---------------------------------------- Page Break ---------------------------------------- v Cases-Continued: Page Missouri V. Hunter, 459 U.S. 359 (1983) . . . . 18, 27, 54 Morris v. Mathews, 475 U.S. 237 (1986) . . . . 41 Murphy V. United States, 272 U.S. 630 (1926) . . . . 43 North Carolina V. Pearce, 395 U.S. 711 (1969 ).... 27 Ohio V. Johnson, 467 U.S. 493 (1984) . . . . 56, 57, 59 One Lot Emerald Cut Stones v. United States, 409 U.S. 232 (1972) . . . . 22, 32 One 1958 Plymouth Sedan V. Pennsylvania, 380 U.S. 693 (1965) . . . . 42 Origet V. United States, 125 U.S. 240 (1888) . . . . 52 Pennsylvania V. Goldhammer, 474 U.S. 28 (1985 ). . . . 28, 55 Price V. Georgia, 398 U.S. 323 (1970) . . . . 18 Republic National Bank V. United States, 506 U.S. 80 (1992) . . . . 45 Rex Trailer Co. v. United States, 350 U.S. 148 (1956) . . . . 48 Richardson V. United States, 468 U.S. 317 (1984).. . . 19 SEC v. Bilzerian, 29 F.3d 689 (D.C. Cir. 1994) . . . . 48 Sandin V. Conner, 115 S. Ct. 2293 (1995) . . . . 41 Schiro v. Farley, 114 S. Ct. 783 (1994) . . . . 16 Schmuck V. United States, 489 U.S. 705 (1989) . . . . 53 Serfass V. United States, 420 U.S. 377 (1975) . ...17.18,30 Smith v. United States, No. 95-2259, 1996 WL 72858 (7th Cir. Feb. 21, 1996) . . . . 49 State V. Hickam, 668 A.2d 1321 (Corm. 1995) . . . . 41 Tibbs V. Florida, 457 U.S. 31 (1982) . . . . 16, 18 United States v. Arlt: No. 92-50467, 1994 WL 678535 (9th Cir. Dec. 1, 1994) . . . . 6 41 F.3d 516 (9th Cir. 1994) . . . . 7 United States V. Ball, 163 U.S. 662 (1896) . . . . 19 United States V. Benz, 282 U.S. 304 (1931) . . . . 28 United States V. Broce, 488 U.S. 563 (1989) . . . . 36 United States V. Cargo of Brig Malek Adhel, 43 U.S. (2 How.) 210 (1844) . . . . 45 United States V. Carson, 52 F.3d 1173 (2d Cir. ,1995), cert. denied, No. 95-6929 (Feb. 20, 1996) . . . . 48 United States V. Certain Real Property& Premises Known as 38 Whalers Cove Drive, 954 F.2d 29 (2d Cir.), cert. denied, 506 U.S. 815 (1992) . . . . 45 ---------------------------------------- Page Break ---------------------------------------- VI Cases-Continued: Page United States v. Chandler, 36 F.3d 358 (4th Cir. 1994), cert. denied, 115 S. Ct. 1792 (1995) . . . . 44, 52 United States V. Clementi, 70 F.3d 997 (8th Cir. 1995) . . . . 48 United States V. DiFrancesco, 449 U.S. 117 (1980) . . . . 27, 28, 55, 57 United States V. Dixon, 113 S, Ct. 2849 (1993) . . . . 16, 50 United States V. Felix, 503 U.S. 378 (1992) . . . . 50 United States V. Fogel, 829 F.2d 77 (D.C. Cir. 1987) . . . . 55 United States v. Halper, 490 U.S. 435 (1989) . . . . passim United States V. Jorn, 400 U.S. 470 (1971) . . . . 18, 36 United States V. La Franca, 282 U.S. 568 (1931) . . . . 21 United States V. Martin Linen Supply Co., 430 U.S. 564 (1977) . . . . 18, 28 United States V. Millan, 2 F.3d 17 (2d Cir. 1993), cert. denied, 114 S. Ct. 922 (1994) . . . . 4, 8, 55 United States V. 9844 South Titan Court, No. 94- 1285, 1996 WL 49002 (10th Cir. Feb. 5, 1996) . . . . 48, 49 United States V. 92 Buena Vista Ave., 113 S. Ct. 1126 (1993) . . . . 20-21, 47 United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984) . . . . 8, 11, 23, 24, 32, 43 United States V. 184,505.01, 72 F.3d 1160 (3d Cir. 1995) . . . . 48 United States v. 141st Street Corp., 911 F.2d 870 (2d Cir. 1990), cert. denied, 498 U.S. 1109 (1991) . . . . 44 United States V. One 1983 Homemade Vessel Named "Barracuda", 858 F.2d 643 (11th Cir. 1988) . . . . 44 United States V. One 1978 Piper Cherokee Air- craft, 37 F.3d 489 (9th Cir. 1994) . . . . 52 United States V. One Single Family Residence, 13 F.3d 1493 (11th Cir. 1994) . . . . 8 , 55 United States V. Salerno, 481 U.S. 739 (1987) . . . . 38 United States V. Salinas, 65 F.3d 551 (6th Cir. 1995) . . . . 48 United States V. Scott, 437 U.S. 82 (1978) . ...16, 19, 57, 59 United States v. Smith, No. 95-1568, 1996 WL 34552 (8th Cir. Jan. 31, 1996) . . . . 55, 58 ---------------------------------------- Page Break ---------------------------------------- VII Cases-Continued: Page United States V. Tilley, 18 F.3d 295 (5th Cir.), cert. denied, 115 S. Ct. 573, 574 (1994 )' . . . . 47, 48 United States V. United States Coin & Currency, 401 Us. 715 (1971) . . . . 41-42 United States v. Universal C.I.T. Credit Corp., 344 `U.S. 218 (1952). . . . 53 United States V. Ward, 448 U.S. 242 (1980) . . . . 20, 23 United States V. Wilson, 420 U.S. 332 (1975) . . . . 16 United States V. Woodward, 469 U.S. 105 (1985). . . . . 53 United States V. Wren, No. 92-50467, 1994 WL 678535 (9th Cir. Dec. 1, 1994) . . . . 7 United States ex rel. Marcus V. Hess, 317 U.S. 537 (1943) . . . . l7, 43, 45 Van Oster V. Karsas, 272 U.S. 465 (1926) . . . . 23, 44 Various Items of Personal Property v. United States, 282 U.S. 577 (1931) . . . . 21,22 Witte V. United States, 115 S. Ct. 2199 (1995) . ...34, 35, 50 Wong Wing V. United States, 163 U.S. 228 (1896).. 19 Constitution and statutes: Us. Const.: Amend. IV . . . . 42, 47 Amend. V (Double Jeopardy Clause) . . . . passim Amend. VIII (Excessive Fines Clause) . . . . 9, 13, 25. 32, 33, 39, 40, 43, 45 False Claims Act, 31 U.S.C. 3729-3731 (1982 ).... 29 Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213 . . . . 23 18 U.S.C. 287 (1982) . . . . 28 18 U.S.C. 371 . . . . 2, 6, 51 18 U.S.C. 981 . . . . 2, 8 18 U.S.C. 981 (a) (1) (A) . . . . 7, 51 18 U.S.C. 982 . . . . 56 18 U.S.C. 1956 . . . . 2, 6, 51 18 U.S.C. 3554 . . . . 56 21 U.S.C. 841 . . . . 2 21 U.S.C. 841 (a) (1) . . . . 2, 3, 51 21 U.S.C. 846 . . . . 2, 6, 51 21 U.S.C. 853 . . . . 56 21 U.S.C. 881 . . . . 2 ---------------------------------------- Page Break ---------------------------------------- VIII Constitution and statutes-Continued: Page 21 U.S.C. 881 (a) (4) . . . . 32, 39, 44 21 U.S.C. 881 (a) (6) . . . . 7, 8, 15, 51, 52 21 U.S.C. 881 (a) (7) . . . . 3, 15, 32, 39, 44, 51, 52 Miscellaneous: S. Rep. No. 225, 98th Cong., 1st Sess. (1983 ). . . . 44 U.S. Dep't of Justice, Compilation of Selected Fed- eral Asset Forfeiture Statutes (Aug. 1995) . . . . 56 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1995. No. 95-345 UNITED STATES OF AMERICA, PETITIONER . v. GUY JEROME URSERY No, 95-346 UNITED STATES OF AMERICA, PETITIONER v. FOUR HUNDRED AND FIVE THOUSAND, EIGHTY-NINE DOLLARS AND TWENTY-THREE CENTS ($405,089.23) IN UNITED STATES CURRENCY, ET AL. ON WRITS OF CERTIORARI TO THE UNITED STATES COURTS OF APPEALS FOR THE SIXTH AND NINTH CIRCUITS BRIEF FOR THE UNITED STATES OPINIONS BELOW The opinion of the court of appeals in No. 95-345 (95-345 Pet. App. la-27a) is reported at 59 F.3d 568. The order of the district court rejecting respond- ent's double jeopardy claim (95-345 Pet. App. 38a- 41a) is not reported. The opinion of the court of ap- (1) --------------------------------------- Page Break ---------------------------------------- 2 peals in No. 95-346 (95-346 Pet. App. la-23a) is reported at 33 F.3d 1210. An order amending that opinion (95-346 Pet. App. 24a-25a) is reported at 56 F.3d 41. JURISDICTION The judgment of the court of appeals in No. 95- 345 was entered on July 13, 1995. The judgment of the court of appeals in No. 95-346 was entered on September 6, 1994. A petition for rehearing was de- nied in No. 95-346, and the opinion was amended, on May 30, 1995. 95-346 Pet. App. 24a-29a. Petitions for writs of certiorari were filed in both cases on August 28, 1995, and were granted by the Court on January 12, 1996 (J.A. 81a-82a). The jurisdiction of this Court rests on 28 U.S.C. 1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Double Jeopardy Clause of the Fifth Amend- ment to the Constitution provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb." The provisions of 18 U.S.C. 371, 981, and 1956 and 21 U.S.C. 841, 846, and 881 are reproduced in the appendices to the peti- tions for certiorari. STATEMENT 1. No. 95-345. After a jury trial in the United States District Court for the Eastern District of Michigan, respondent was convicted of manufactur- ing marijuana, in violation of 21 U.S.C. 841 (a) (1). He was sentenced to 63 months' imprisonment, to be followed by four years' supervised release. The court of appeals reversed his conviction. Pet. App. la-27a. ---------------------------------------- Page Break ---------------------------------------- 3 a. On July 30, 1992, Michigan State, Police exe- cuted a search warrant and found 142 marijuana plants growing on land just outside we boundaries of respondent's property in Perry, Michigan. Pet. App. 2a. Inside respondent's house, the officers found marijuana seeds, stems, and stalks, two loaded fire- arms, and a growlight. Ibid. While investigating that crime, law enforcement officers learned that re- spondent had been growing marijuana on his prop- erty and the land adjoining it for at least three years. During that period, respondent, his wife, and his son would harvest the marijuana, bring it back to re- spondent's house, and hang it in a crawlspace to dry. J.A. 44-56, 65-66. b. On September 30, 1992, the government filed an in rem complaint seeking forfeiture of respond- ent's property under 21 U.S.C. 881(a) (7). Pet. App. 28a-31a. The complaint alleged that, "[f] or several years, the defendant real property was used or in- tended to be used to facilitate the unlawful processing and distribution of a controlled substance." Id. at 29a. Respondent and his wife filed a claim to the property and an answer to the forfeiture complaint. Subsequently, on May 24, 1993, respondent and his wife settled the forfeiture action by agreeing to pay $13,250 in lieu of the forfeiture of the property. Id. at 32a-37a. c. In the meantime, on February 5, 1993, a grand jury returned an indictment charging respondent with a single count of manufacturing marijuana, in violation of 21 U.S.C. 841 (a) (1). Pet. App. 3a. The indictment charged that the manufacturing offense occurred on July 30, 1992, the date on which Mich- igan State Police searched respondent's property. Respondent was not indicted for narcotics possession ---------------------------------------- Page Break ---------------------------------------- 4 or distribution offenses, nor was he charged with any other criminal offense on the basis- of his unlawful activities in the years leading up to the search. After his conviction on the manufacturing charge, respond- ent moved to dismiss the indictment on the ground that the Double Jeopardy Clause barred his criminal conviction following the civil forfeiture of his prop- erty. The district court denied the motion, finding that the forfeiture proceeding was not an "adjudica- tion" because it was settled by a consent judgment and that "the forfeiture proceeding and criminal con- viction were `part of a single, coordinated prosecution of [a] person involved in alleged criminal activity.'" Id. at 39a (quoting United States v. Millan, 2 F.3d 17, 20 (2d Cir. 1993), cert. denied, 114 S. Ct. 922 (1994)). d. A divided panel of the Sixth Circuit reversed. Pet. App. la-27a. The majority first found that "jeopardy" had attached in the civil forfeiture pro- ceeding because the "consent judgment in [the] civil forfeiture action is analogous to a guilty plea entered pursuant to a plea agreement in a criminal case." Id. at 6a. The court concluded that, because jeopardy attaches in a criminal case when the trial court ac- cepts the defendant's plea, "[j]eopardy attached in a nontrial forfeiture proceeding when the court accepts the stipulation of forfeiture." Id. at 7a. Relying on United States v. Halper, 490 U.S. 435 (1989), and Austin v. United States, 113 S. Ct. 2801 (1993), the court next concluded that "any civil for- feiture under 21 U.S.C. 881 (a) (7) constitutes pun- ishment for double jeopardy purposes." Pet. App. ha. The court then rejected the government's argu- ment that respondent's criminal conviction and the civil forfeiture of his property did not constitute pun. ---------------------------------------- Page Break ---------------------------------------- 5 ishment for the "same offence" within the meaning of the Double Jeopardy Clause. The court explained that "the forfeiture necessarily requires proof of the criminal offense. * * * The criminal offense is in essence subsumed by the forfeiture statute and thus does not require an element of proof that is not re- quired by the forfeiture action." Id. at 12a. Finally, the court acknowledged that the government may impose multiple punishments for the same offense in a single proceeding, but it declined to find that the parallel civil forfeiture and criminal actions con- stituted a "single, coordinated proceeding" for double jeopardy purposes, because the actions proceeded be- fore different judges and because there was no com- munication between the government lawyers assigned to the civil and criminal efforts. Id. at 13a-17a. Judge Milburn dissented. Pet. App. 19a-27a. In his view, the question whether parallel criminal and civil actions are a "single proceeding" for double jeopardy purposes should turn on "the timing of the civil and criminal proceedings and the potential for government abuse of those proceedings." Id. at 22a. That approach, he argued, "avoids the inevitable diffi- culty of a case-by-case comparison of the level of `coordination?' between the civil and criminal actions. Ibid. Because the "government was not acting to pursue a second punishment out of dissatisfaction with the first outcome" and the civil and criminal actions were active during the same time frame, he concluded that those actions were a single double jeopardy proceeding. Id. at 22a, 25a. 1 ___________________(footnotes) 1 Judge Milburn also rejected the majority's conclusion that the civil and criminal actions imposed punishment for the "same offence." He noted that the civil forfeiture complaint ---------------------------------------- Page Break ---------------------------------------- 6 2. No. 95-346. In this civil forfeiture action, the district court granted summary judgment to the United States and ordered the forfeiture of United States currency, a helicopter, a boat, an airplane, 138 silver bars, and 11 automobiles. The court of appeals reversed. Pet. App. 1a-23a. a. Respondents Wren and Arlt participated in a massive conspiracy to manufacture methamphetamine. Respondents and others purchased large quantities of precursor chemicals and delivered them to meth- amphetamine manufacturers. Respondent Wren not only ordered large quantities of the chemicals, but, with another conspirator, also "transported hundreds of thousands of dollars in cash to pay for" them. Respondent Arlt aided and abetted the manufacture of methamphetamine, and hired others to transport the drugs and to act as intermediaries with Mexican traffickers. See United States v. Arlt, No. 92-50467, 1994 WL 678535 (9th Cir. Dec. 1, 1994). On June 12, 1991, a grand jury returned a super- seding indictment charging Arlt, Wren, and five others with conspiracy to aid and abet the manu- facture of methamphetamine, in violation of 21 U.S.C. 846. The indictment also charged Arlt and Wren with conspiracy to launder monetary instru- ments, in violation of 18 U.S.C. 371, and Arlt was charged with 17 counts, and Wren with 13 counts, of money laundering, in violation of 18 U.S.C. 1956. Pet. App. 79a-105a. On March 27, 1992, after a jury trial, Arlt and Wren were convicted on all counts. The district court sentenced Arlt to life imprison- ___________________(footnotes) charged that the defendant property had been used to grow marijuana "for several years," but that the indictment charged an offense occurring on a single day. Pet. App. 26a-27a. ---------------------------------------- Page Break ---------------------------------------- 7 ment and a ten-year term of supervised release, and imposed a fine of $250,000. Id. at 106a-108a. Wren was sentenced to life imprisonment and a five-year term of supervised release, Id. at 109a-111a. 2 b. On June 17, 1991, five days after the return of the superseding indictment, the government filed an in rem complaint seeking forfeiture under 21 U.S.C. 881 (a) (6) and 18 U.S.C. 981 (a) (1) (A) of currency, cars, vessels, silver bars, and aircraft seized from or titled to Arlt, Wren, or Payback Mines, a corporation controlled by Arlt. Pet. App. 30a-49a. Wren, Arlt, and Payback Mines filed claims to the defendant properties. By agreement of the parties, litigation of the forfeiture action was deferred during the pendency of the criminal prosecution. Id. at 50a- 52a. After respondents' criminal convictions, the govern- ment sought summary judgment in the forfeiture case, contending that the defendant assets were the proceeds of illegal narcotics trafficking and, alter- natively, were "involved in," or "traceable to" prop- erties involved in, money laundering. The district court granted the government's motion. The court found that all of the assets were subject to for- feiture as proceeds of illegal narcotics activity. In ___________________(footnotes) 2 On December 1, 1994, the Ninth Circuit reversed Arlt's conviction on the ground that he was improperly denied his right to self-representation, and remanded for a new trial. See United States V. Arlt, 41 F.3d 516. That decision did not affect Wren's conviction, the only other claimant who was criminally prosecuted. Wren's conviction was affirmed by the same panel in an unpublished order, but (on the govern- ment's cross-appeal) the panel vacated his sentence and remanded for resentencing. See United States V. Wren, No. 92-50467, 1994 WL 678535 (Dec. 1, 1994). ---------------------------------------- Page Break ---------------------------------------- 8 the alternative, the court held that, except for the silver bars, the defendant property was subject to forfeiture under the money laundering theory. Pet. App. 53a-74a. c. The Ninth Circuit reversed the forfeiture judg- ment. Pet. App. 1a-23a. The court held that the forfeiture of Wren's and Arlt's property constituted punishment for the same offenses that had formed the basis for their criminal convictions and thus that the forfeiture judgment imposed an impermissible second punishment, in violation of the Double Jeopardy Clause. First, the court held that the civil forfeiture and criminal prosecutions constituted "separate pro- ceedings" for double jeopardy purposes. Id. at 7a. Although the court acknowledged that two other cir- cuits had come to the opposite conclusion, id. at 8a (citing United States v. Millan, 2 F.3d at 20; United States v. One Single Family Residence, 13 F.3d 1493, 1499 (11th Cir. 1994)), it found that "[a] forfeiture case and a criminal prosecution would constitute the same proceeding only if they were brought in the same indictment and tried at the same time." Pet. App. 8a. The court further found that civil forfeiture under 21 U.S.C. 881 (a) (6) and 18 U.S.C. 981 invariably constitutes punishment. The court recognized that, under United States v. One Assortment of 89 Fire- arms, 465 U.S. 354 (1984 ), it was "clear that civil forfeitures did not constitute `punishment' for double jeopardy purposes." Pet. App. 13a. The panel con- cluded, however, that this Court "changed its collec- tive mind" (ibid.) in United States v. Halper, 490 U.S. 435 (1989), by holding that certain civil pro- ceedings can result in punishment for purposes of ---------------------------------------- Page Break ---------------------------------------- 9 the Double Jeopardy Clause's prohibition on multiple punishments. The panel found confirmation for that conclusion in Austin v. United States, 113 S. Ct. 2801 (1993), which held that civil forfeitures of property used to facilitate a drug crime should be considered "punishment" for purposes of determining the threshold applicability of the Excessive Fines Clause of the Eighth Amendment. The panel found that "the only fair reading" of Austin is that all civil forfeitures must be deemed "punishment" not only under the Eighth Amendment, but also under the Double Jeopardy Clause. Pet. App. 15a. d. The government sought rehearing and sug- gested rehearing en bane, which the court of appeals denied. In denying rehearing, the panel amended its opinion to note (Pet. App. 25a) that its categorical approach was also "compelled" by Department of Revenue of Montana v. Kurth Ranch, 114 S. Ct. 1937 (1994), a case decided before the panel's decision, but not cited in its original opinion. The panel ex- plained that Kurth Ranch "applied Austin's categor- ical approach for determining when punishment has been imposed in a Double Jeopardy case arising pur- suant to a statute that taxed drug monies." Pet. App. 25a. Seven judges dissented from the denial of rehearing en bane. Pet. App. 25a-29a. Writing for the dissent- ers, Judge Rymer disputed the panel's conclusion that forfeiting the proceeds of unlawful activity is "pun- ishment." Id. at 27a. She also noted that the panel's categorical approach to punishment questions "writes 89 Firearms off the books" by citing Halper and Austin "out of context and surmising that `the Court changed its collective mind' * * * despite the fact that. ---------------------------------------- Page Break ---------------------------------------- 10 the Court itself didn't say that it had." Ibid. Judge Rymer also rejected the panel's view that Kurth Ranch should be read to support a "categorical" ap- proach to the forfeiture of proceeds, noting that "Kurth Ranch was a double jeopardy case * * * that was decided after Austin, yet mentioned Austin only in passing and then only as holding that a civil forfeiture may violate the Eighth Amendment's pro- scription against excessive ties." Id. at 29a n.3 (citing Kurth Ranch, 114 S. Ct. at 1945). SUMMARY OF ARGUMENT The courts below concluded that under United States v. Halper, 490 U.S. 435 (1989), and this Court's decisions since Halper, each respondent was twice punished, in violation of the Double Jeopardy Clause of the Fifth Amendment. Each court, view- ing the second "punishment" as having resulted from an impermissible second "proceeding" against re- spondents, ordered the second "proceeding" (the for- feiture in $405,089.23 and the criminal conviction in Ursery) dismissed in its entirety. That analysis is erroneous for several independent reasons. A. The core protection of the Double Jeopardy Clause is the prohibition against prosecuting a de- fendant more than once for the same offense. That protection is triggered only when a defendant is placed "in jeopardy." This Court's cases have defined that phrase to denote the risk of conviction that a defendant faces before a tribunal vested with juris- diction to find him guilty of a crime. That under- standing of "jeopardy" flows from the unique role and consequences of criminal sanctions in our society. ---------------------------------------- Page Break ---------------------------------------- 11 It also accords with the Clause's historical origins in common-law pleas peculiar to the criminal process. In rare cases, that core protection against suc- cessive prosecutions may be relevant when the gov- ernment invokes a purportedly civil statute that is so pervasively punitive that due process requires that its sanctions be enforced only after a criminal trial. E.g., Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). In such a rare case, the application of the purportedly civil sanction could be said to place the defendant "in jeopardy." But that limited principle does not help respondents in these cases, because this Court has long held that in rem forfeitures pursuant to civil statutes are not so punitive that they may be enforced only with the safeguards of a criminal trial. The Court most recently reaffirmed that view in United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984 ), in which it unanimously re- jected the double jeopardy claim of a property owner who had been tried for and acquitted of the criminal offenses underlying the forfeiture. In light of 89 Firearms, respondents have no double jeopardy claim that they have been subjected to multiple prosecutions. B. The courts below relied principally on the mul- tiple punishments strand of double jeopardy law, which they believed was effectively revolutionized by this Court's decision in Halper. That conclusion re- flects a grave misunderstanding of the scope of the prohibition of multiple punishments as applied in Halper. That doctrine, which originated with Ex parte Lange, 85 U.S. (18 Wall. ) 163 (1873), pro- tects two distinct interests of a criminal defendant. The first is that a court may not impose a greater sentence than the legislature authorized. The second is that a court may not increase a defendant's sen- ---------------------------------------- Page Break ---------------------------------------- 12 tence if to do so would disturb his Legitimate ex- pectation of finality in a criminal judgment. In either event, the protection against multiple punish- ments is a consequence of the defendant's having been placed "in jeopardy," and then convicted of a crime. Halper involved the second aspect of the "multiple punishments" doctrine-the protection of a defend- ant's legitimate expectation of finality in a criminal judgment. In that case, the government sought what the Court viewed as a punitive civil fine after the defendant's criminal sentence had become final. In rejecting that attempt, the Court did not rely on any view that the civil action was an impermissible second prosecution for the offense. Nor did it reject its prec- edents dealing with whether a nominally "civil" rem- edy in fact constituted a "criminal" sanction. The Court concluded only that a defendant's legitimate expectation of finality in his sentence, can, in a "rare case," be upset when the government seeks to inflict additional punishment in a civil proceeding. In such a case, the "multiple punishments" doctrine does not bar the second (civil) proceeding, but only so much of the penalty sought as would constitute an addi- tional sentence. Halper and the "multiple punishments" doctrine it invoked therefore are relevant only when the gov- ernment can fairly be said to be seeking, in a pro- ceeding commenced. after a criminal judgment has become final and unappealable, to increase the sen- tence reflected in that judgment. Because respondent Ursery entered into a consent judgment of civil for- feiture before he was placed "in jeopardy," that doc- trine cannot help him. C. The respondents in $405,089.23 were placed "in jeopardy," and convicted in a criminal case, be- ---------------------------------------- Page Break ---------------------------------------- 13 fore entry of the civil judgment forfeiting the pro- ceeds of their crimes. They cannot demonstrate, how- ever, that the civil judgment forfeiting the proceeds of their narcotics trafficking should be viewed as a "punishment" under this Court's double jeopardy cases. Nor would respondent. Ursery be able to dem- onstrate that the forfeiture of his property used to facilitate drug offenses constitutes "punishment." In concluding that civil forfeitures always impose "punishment," both courts below relied principally on Austin v. United States, 113 S. Ct. 2801 (1993). Austin, however, held only that the forfeiture of property used to facilitate drug offenses is sufficiently punitive to be subject to analysis under the Eighth Amendment's prohibition against excessive fines. Aus- tin relied on language in Halper for a broad defini- tion of "punishment"-a definition that could include any sanction that serves partly as a deterrent. Austin also relied on the Court's view that, as a historical matter, forfeiture of property used to commit crimes has always been considered punitive, at least "in part." Austin's analysis is inapplicable here. The civil in rem forfeiture of instrumentalities of crime has been a fixture of our law since the Nation's earliest years, Even if understood as partly punitive, those civil laws have never been thought so intrin- sically punitive, as a categorical matter, as to trigger double jeopardy scrutiny, The holding of Halper re- quires a case-by-case inquiry into the character of the actual sanctions imposed in a particular case as a prerequisite for multiple punishments protection. A categorical application of that protection based on the potential that a forfeiture statute may produce a punitive judgment is inconsistent with Halper's holding. ---------------------------------------- Page Break ---------------------------------------- 14 Forfeitures of facilitating property should there- fore be examined in accordance with the case-by-case approach adopted in Halper. Under that approach, a forfeiture of property that facilitated a drug offense should be found remedial if it can rationally be ex- plained as serving the traditional remedial justifica- tions for that in rem remedy: encouraging owners to take care in the use of their property; abating a nuisance; and providing recompense to the govern- ment for the law enforcement costs and social harms of drug trafficking. That is the case here with re- spect to respondent Ursery's property. Even if the forfeiture of "facilitating" property were found generally to impose punishment for double jeopardy purposes, the forfeiture of "proceeds" of narcotics trafficking should not be found punitive. Statutes providing for forfeiture of proceeds of criminal activity do not share the historical pedigree of other in rem forfeitures, on which Austin relied, but were first adopted within the last 20 years to ensure that criminal activity is not profitable. Those statutes therefore simply prevent unjust enrichment, a plainly remedial, rather than punitive, goal. D.. Even if civil forfeiture amounts to an "offense" that' triggers double jeopardy protections, the "of- fense" punished in the forfeiture proceedings at issue here is not the "same offense" as any of those of which respondents were convicted. A straightforward application of the "statutory elements" test of Block- burger v. United States, 284 U.S. 299 (1932), com- pels that conclusion. Each of the forfeiture statutes requires proof of a fact that the criminal statutes do not require, to wit, that the defendant property played some role in the commission of a crime. Conversely, each of the criminal statutes requires proof of at ---------------------------------------- Page Break ---------------------------------------- 15 least one element not found in the forfeiture statutes, to wit, the property owner's knowing commission of a crime. Indeed, because the government may obtain forfeiture under 21 U.S.C. 881 (a)(6) and (7) of property that was merely "intended" for use in a drug offense, forfeiture under those subsections may occur even if no crime actually was committed by anyone. E. Finally, even if the forfeitures in these cases constitute "punishment" for the offenses of which the claimants were convicted, the civil and criminal sanc- tions should be regarded as part of a single proceed- ing for purposes of the Double Jeopardy Clause. The issue whether a "proceeding" is impermissible suc- cessive for constitutional purposes does not turn on formalities such as whether it bears a new docket number, is heard by a new judge, or is handled by a new government lawyer. Those factors are present in many government sentencing appeals; yet, they do not make the appeal a new "proceeding" at which punishment is improperly increased. Rather, be- cause the "multiple punishments" doctrine protects a legitimate expectation of finality in a criminal sen- tence, a proceeding is impermissible successive only when it is commenced after the defendant acquires a legitimate expectation that further punishment will not be imposed. It is then that Halper's underlying concern-to prevent the government from seeking a new punishment because it is dissatisfied with the defendant's sentence-comes into play. That concern is inapplicable in these cases, because the govern- ment's conduct reveals a design to seek the authorized civil and criminal sanctions in parallel and contem- poraneous proceedings. ---------------------------------------- Page Break ---------------------------------------- 16 ARGUMENT THE PARALLEL CRIMINAL CONVICTIONS AND CIVIL IN REM FORFEITURES IN THESE CASES DID NOT VIOLATE RESPONDENTS' RIGHTS UNDER THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT A. In Rem Forfeiture Is A Civil, Remedial Sanction That Does Not Implicate The Double Jeopardy Clause's Prohibition Of Multiple Prosecutions 1. The Double Jeopardy Clause provides that no "person [shall] be subject for the same offence to be twice put in jeopardy of life or limb." That Clause "had its origin in the three common-law pleas of autrefois acquit, autrefois convict, and pardon," which "prevented the retrial of a person who had previously been acquitted, convicted, or pardoned for the same offense." -United States v. Scott, 437 U.S. 82, 87 (1978); see also United States v. Wilson, 420 U.S. 332, 340-342 (1975) ; accord Grady v. Corbin, 495 U.S. 508, 530 `(1990) (Scalia, J., dissenting), overruled by United States v. Dixon, 113 S. Ct. 2849 (1993) ; Green v. United States, 355 U.S. 184, 200 (1957) (Frankfurter, J., dissenting). The "core * * * area protected" by the Clause (United States v. Scott, 437 U.S. at 96) accordingly has always been the defendant's right not to be tried for a criminal charge more than once. United States v. Wilson, 420 U.S. at 343; see Schiro v. Parley, 114 S. Ct. 783, 789 (1994) ("[O]ur eases establish that the primary evil to be guarded against is successive prosecutions: `The prohibition against multiple trials is the controlling constitutional principle' ") (internal brackets and citations omitted) ; see also Tibbs v. Florida, 457 U.S. 31, 41 (1982) ; United States v. Dixon, 113 S. Ct. at ---------------------------------------- Page Break ---------------------------------------- 17 2882 (Souter, J., concurring in the judgment in part and dissenting in part). As the language of the Clause requires, its protec- tion depends upon the defendant being placed "in jeopardy." See, e.g., Serfass v. United States, 420 U.S. 377, 388, 390-391 (1975 ). This Court has inter- preted that requirement, in light of its history, as being met only by the dangers associated with the actual trial of a criminal case: "Jeopardy denotes risk. In the constitutional sense, jeopardy describes the risk that is traditionally associated with a crim- inal prosecution." Breed v. Jones, 421 U.S. 519, 528 (1975); see Serfass v. United States, 420 U.S. at 391 ("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 juris- diction to try the question of the guilt or innocence of the accused' ") (quoting Kepner v. United States, 195 U.S. 100, 133 (1904) ) ; Crist v. Bretz, 437 U.S. 28, 34-36 (1978) ("jeopardy" concept protects ac- cused from repeated attempts "to convict," safeguards his right to have his trial completed by a particular tribunal, and therefore has "roots deep in the his- toric development of trial by jury in the Anglo- American system of criminal justice"); United States ex rel. Marcus v. Hess, 317 U.S. 537, .548-549 (1943) (" `jeopardy' within the constitutional mean- ing" refers to the risks associated with "actions in- tended to authorize criminal punishment to vindicate public justice" ). The reasons for that focus are rooted in the unique role and consequences of criminal sanctions in our society. A conviction represents the societal judgment that a person is a "criminal" and subjects that per- son to stigma that is unmatched by any other asser- ---------------------------------------- Page Break ---------------------------------------- 18 tion of governmental power. See Breed v. Jones, 421 U.S. at 530; see also Price v. Georgia, 398 U.S. 323, 331 n.10 (1970). Each such judgment typically has long-lasting collateral consequences both in the juris- diction in which the conviction is obtained and in others. See Benton v. Maryland, 395 U.S. 784, 790 (1969) ; Missouri v. Hunter, 459 U.S. 359, 372 (1983) (Marshall, J., dissenting). Because a crim- inal prosecution "is an ordeal not to be viewed lightly," Price v. Georgia, 398 U.S. at 331, the funda- mental notion of the Double Jeopardy Clause is that the government should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, ex- pense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he maybe found guilty. Green v. United Stales, 355 U.S. at 187-188; Serfass v. United States, 420 U.S. at 388; see also Tibbs v. Florida, 457 U.S. at 41 ("Repeated prosecutorial sal- lies would unfairly burden the defendant and create a risk of conviction through sheer governmental per- severance"). Thus, as a general matter, "[s]ociety's awareness of the heavy personal strain which a crim- inal trial represents for the individual defendant is manifested in the willingness to limit the Government to a single criminal proceeding to vindicate its very vital interest in the enforcement of criminal laws." United States v. Martin Linen Supply Co., 430 U.S. 564, 569 (1977) (quoting United States v. Jorn, 400 U.S. 470, 479 (1971 ) (plurality opinion of Harlan, J.) ); see Abney v. United States, 431 U.S. 651, 661 (1977). ---------------------------------------- Page Break ---------------------------------------- 19 2. Most cases arising under the "multiple prosecu- tions" doctrine do not require the characterization of the nature of the proceedings, because there is rarely any doubt that the government seeks a second crim- inal trial. Instead, those cases primarily involve the question whether the second trial falls within an ex- ception to the multiple prosecutions prohibition. See, e.g., Richardson v. United States, 468 U.S. 317, 323- 326 (1984) (permissible to retry defendant when first trial ends with a hung jury) ; United States v. Scott, 437 U.S. at 98-101 (permissible to retry de- fendant when first trial was erroneously terminated at his behest on grounds unrelated to factual guilt); United States v. Ball, 163 U.S. 662, 671-672 (1896) (retrial permitted after conviction is reversed on appeal). Nonetheless, the Court has recognized that a civil statute may be so stigmatizing and punitive in all of its applications that it effectively operates as a criminal sanction. In that setting, the nominally civil sanction is properly characterized as criminal in effect, and such a statute cannot be invoked at all without complying with the safeguards that the Con- stitution requires for criminal trials. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 184-186 (1963) (invalidating a statute that prescribed, without a criminal trial, loss of citizenship for any person who, to evade military service, remained outside the United States in time of war) ; Wong Wing v. United States, 163 U.S. 228, 235-238 (1896) (invalidating a statute that provided, without a criminal trial, for aliens to be confined at hard labor for one year before being deported); compare Allen v. Illinois, 478 U.S. 364, 368-369 (1986) (upholding statute that provided for involuntary civil commitment of "sexually dangerous ---------------------------------------- Page Break ---------------------------------------- 20 persons") ; United States v. Ward, 448 U.S. 242, 248-251 (1980) (upholding statute that imposed -civil penalties on parties responsible for the discharge of hazardous substances).3 If the government were to invoke such a pervas- ively penal civil statute against a person who already has been criminally tried for the same offense, it would effectively place him "twice in jeopardy," in violation of the Fifth Amendment. Civil forfeiture statutes, however, have never been viewed as having that effect. This Court has often rejected the claim that statutes providing for the in rem civil forfeiture of property are so punitive that they may only be enforced after a criminal trial, or that they place a property owner "in jeopardy." Indeed, because laws authorizing the in rem civil forfeiture of property involved in criminal activity-from violations of cus- toms and imposts laws to piracy-were among the earliest statutes enacted by Congress, see United ___________________(footnotes) 3 In Kennedy V. Mendoza-Martinez, the Court identified several factors that, though "neither exhaustive nor disposi- tive" (United States V. Ward, 448 U.S. at 249), provide use- ful guideposts in determining whether particular statutory sanctions are so punitive that they may be imposed only after a criminal prosecution (372 U.S. at 168-169) (footnotes omitted): Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a find- ing of scienter, whether its operation will promote the traditional aims of punishment -retribution and deter- rence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry. ---------------------------------------- Page Break ---------------------------------------- 21 States v. 92 Buena Vista Ave., 113 S. Ct. 1126, 1131- 1132 (1993 ) (plurality opinion of Stevens, J.) ; see also C.J. Hendry Co. v. Moore, 318 U.S. 133, 139 (1943) ; Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 683 (1974), they repeatedly "have been upheld against the contention that they are essen- tially criminal and subject to the procedural rules governing criminal prosecutions." Helvering v. Mit- chell, 303 U.S. 391, 400 (1938). Thus, in Various Items of Personal Property v. United States, 282 U.S. 577 (1931 ), the Court un- animously rejected the contention that the prior con- viction of property owners for defrauding the gov- ernment of liquor taxes barred the forfeiture of property-a distillery, a warehouse, and a denatur- ing plant-used in the commission of the fraud. Id. at 580. The Court reasoned that the forfeiture was an in rem civil proceeding against the property, rather than "a criminal prosecution [in which] it is the wrongdoer in person who is proceeded against, convicted and punished." Id. at 581. The Court ac- cordingly concluded that "[t] he forfeiture is no part of the punishment for the criminal offense," and that "[t]he provision of the Fifth Amendment to the Constitution in respect of double jeopardy does not apply." Ibid.; see also Dobbins's Distillery v. United States, 96 U.S. 395, 403-404 (1878)3 Seven years ___________________(footnotes) 4 Various Items was decided on the, same day as United States V. La Franca, 282 U.S. 568 (1931). In that case, the Court, to avoid a constitutional issue, unanimously construed a statute that authorized a civil action to recover certain taxes, which the Court viewed as penalties, as not permitting such recovery after conviction of the defendant for a criminal offense arising from the same transactions. Justice Suther- land, who wrote for the Court in both cases, after adverting ---------------------------------------- Page Break ---------------------------------------- 22 later, the Court decided Helvering v. Mitchell, supra, which presented the question whether a proceeding to collect an income tax deficiency and a 50% penalty for fraud was "essentially criminal." 303 U.S. at 400. In rejecting that claim, the Court explained that, "[i] n spite of their comparative severity," customs forfeitures had been held "enforcible by civil proceedings," ibid., and that tax penalties are likewise "remedial" sanctions because "[t]hey are provided primarily as a safeguard for the protection of the revenue an-d to reimburse the Government for the heavy expense of investigation and the loss re- sulting from the taxpayer's fraud," id. at 401. More recently, in One Lot Emerald Cut Stones v. United States, 409 U.S. 232 (1972) (per curiam), the Court rejected the notion that the Double Jeop- ardy Clause barred a forfeiture of property smuggled into the United States after the acquittal of the per- son charged with illegally importing the property. Relying on Helvering v. Mitchell, supra, the Court held that "the forfeiture is not barred by the Double Jeopardy Clause of the Fifth Amendment because it involves neither two criminal trials nor two criminal punishments." 409 U.S. at 235. The Court found that the forfeiture, "a civil sanction," was properly characterized as remedial because "[i] t prevents for- bidden merchandise from circulating in the United States, and, by its monetary penalty, it provides a reasonable form of liquidated damages for violation of the inspection provisions and serves to reimburse the Government for investigation and enforcement expenses." Id. at 236-237; see also Calero-Toledo, 416 ___________________(footnotes) to La Franca in Various Items, noted that such considerations did not apply to "a proceeding in rem to forfeit property used in committing an offense." Various Items, 282 U.S. at 580. ---------------------------------------- Page Break ---------------------------------------- 23 U.S. at 687 n.26 ("forfeiture statutes also help com- pensate the Government for its enforcement ef- forts") ; Van ester V. Kansas, 272 U.S. 465, 466 (1926) (property used to violate the law may be regarded as a "common nuisance"). The Court unanimously reaffirmed its long- standing view of in rem forfeitures in United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984). After examining the factors outlined in Mendoza-Martinez, supra, and Ward, supra, the Court held that the Double Jeopardy Clause did not bar a civil in rem action to forfeit firearms "involved in or used or intended to be used in" violations of the Gun Control Act of 1968 following the owner's acquittal of related violations of that Act. 465 U.S. at 362-366. The 89 firearms Court explained that, " [u]nless the forfeiture sanction was intended as punishment, so that the proceeding is essentially crim- inal in character, the Double Jeopardy Clause is not applicable." Id. at 362. In concluding that the in rem proceeding could not fairly be viewed as a second criminal prosecution, the Court noted that Congress intended the forfeiture to be a civil remedy, id. at 363, that the forfeiture provisions "were meant to be broader in scope than the criminal sanctions," id. at 364, since they provided for forfeiture of property "involved in or used or intended to be used in" viola- tions of law, id. at 363, and that the statute furthered the "broad remedial aims" of "discouraging unregu- lated commerce in firearms and * * * removing from circulation firearms that have been used or intended for use outside regulated channels of commerce," id. at 364. Because the forfeiture served goals "plainly more remedial than punitive," ibid., and the claim- ant "failed to establish by the `clearest proof'" (id. ---------------------------------------- Page Break ---------------------------------------- 24 at 366) that the statute was "so punitive either in purpose or effect" as to negate Congress's intent "to establish .a civil remedial mechanism," id. at 365, the Court concluded that, the forfeiture was "not an addi- tional penalty for the commission of a criminal act, but rather [was] a separate civil sanction, remedial in nature [,] * * * [that was] not barred by the Double Jeopardy Clause," Id. at 366. 3. The foregoing cases establish that in rem civil forfeiture proceedings under the statutes at issue in these cases cannot be viewed as criminal prosecutions barred by the "multiple prosecutions" component of the Double Jeopardy Clause. Indeed, the Ninth Cir- cuit conceded that under 89 Firearms "the law was clear" (95-346 Pet. App. 13a) that respondents Arlt and Wren could not secure dismissal of the forfeiture action on double jeopardy grounds. The Ninth Cir- cuit believed (and the Sixth Circuit, in adopting the Ninth Circuit's analysis, presumably agreed, see 95- 345 Pet. App. 9a-11a), however, that this Court "changed its collective mind" in three cases decided after 89 Firearms. See 95-346 Pet. App. 13a. First, the Ninth Circuit believed that in United States v. Halper, 490 U.S. 435 (1989), this Court "abandoned the * * * approach" of Ward and Men- doza-Martinez, which focuses on whether an entire statute is so inherently punitive that its provisions could be enforced only in a criminal trial. In the Ninth Circuit's view, Halper adopted instead a new, more expansive definition of "punishment" to be ap- plied on a case-by-case basis. 95-346 Pet. App. 13a- 14a. Under that new definition, the court believed that a civil sanction that cannot be said to serve "solely" a remedial purpose,. but which also acts as a ---------------------------------------- Page Break ---------------------------------------- 25 deterrent, is "punishment." Id. at 14a. Second, the Ninth Circuit concluded that in Austin v. United States, 113 S. Ct. 2801 (1993), an Excessive Fines Clause case, this Court abandoned Halper's case-by- case approach and adopted a "categorical" analysis. That analysis retains the "new-found wisdom" of Halper's expansive definition of "punishment," 95- 346 Pet. App. 14a, but applies it "to the entire scope of the statute which the government seeks to employ," id. at 16a. The third case, Department of "Revenue of Montana v. Kurth Ranch; 114 S. Ct. 1937 (1994), was read by the Ninth Circuit as "compelling]" its interpretation of Austin and Halper. See 95-346 Pet. App. 25a. As we demonstrate next, that analysis of this Court's cases since 89 Firearms is unsound. It fails to recognize that Halper invoked an established doc- trine of double jeopardy law-the prohibition of mul- tiple punishments- that by then had developed sub- ject to important limitations. In particular, that branch of double jeopardy law has never been a doc- trine that speaks to punishment simpliciter, but rather one that comes into operation only when a criminal defendant has been placed "in jeopardy"- i.e., at risk of conviction for a criminal offense. The protection against multiple punishments is a conse- quence of jeopardy, as this Court's cases have defined that term, not a substitute for it, as both courts below supposed. Nothing in Austin or Kurth Ranch changes that understanding. ---------------------------------------- Page Break ---------------------------------------- 26 B. The Courts Below Misconstrued Halper, And This Court's Decisions Since Halper, By Failing To Recog- nize The Limits Of This Court's "Multiple Punish- ments" Cases 1. The doctrine that the Double Jeopardy Clause prohibits the imposition of "multiple punishments" originated in Ex parte Lange, 85 U.S. (18 Wall. ) 163 (1873 ). The defendant in that case had been convicted of a crime for which Congress had author- ized a sentence of a $200 fine or a one-year prison term, but not both. The trial court, however, mis- takenly sentenced Lange both to the maximum fine and to a one-year prison term. After Lange had paid the fine, the money had passed into the Treasury, and Lange had served five days of the prison sentence, he sought a writ of habeas corpus from the trial court. Id. at 164, 175. The trial court attempted to vacate the earlier judgment of conviction and to enter a new sentence of one year's imprisonment from the date of the second judgment. Id. at 175. On the defend- ant's original application for habeas corpus, this Court ordered him released. The Court noted that, if the second sentence were enforced, the prisoner would pay $200, serve a year in jail, "and five days' imprisonment in addition." 85 U.S. (18 Wall.) at 175. That result. was objectionable on two separate but related grounds. First, when the trial court originally imposed sentence, it had lacked the statutory authority to impose both a fine and im- prisonment. Second, once the prisoner fully served either lawful half of the first-imposed sentence, "the power of the court to punish further was gone." Id. at 176; accord Bozza v. United States, 330 U.S. 160, 167 n.2 (1947). The Court justified that conclusion ---------------------------------------- Page Break ---------------------------------------- 27 by invoking not only "the well-settled principles of the common law," 85 U.S. (18 Wall. ) at 178; see also id. at 176, but also the Double Jeopardy Clause. As to the latter, the Court reasoned that the constitu- tional protection would be of little value "if, after judgment has been rendered on the conviction, and the sentence of that judgment executed on the crim- inal, he can be again sentenced on that conviction to another and different punishment, or to endure the same punishment a second time." Id. at 173; see also In re Bradley, 318 U.S. 50 (1943). In light of Ex parte Lange's reasoning, this Court has interpreted the "multiple punishments" doctrine as reflecting two distinct principles of double jeopardy law. The first principle is that the Double Jeopardy Clause prohibits a court, when it sentences a defend- ant in a criminal case, from imposing "greater pun- ishment than the legislature intended." Missouri v. Hunter, 459 U.S. at 366; see also North Carolina v. Pearce, 395 U.S. 711, 717-718 (1969). The second principle is that the Clause protects "also against additions to a sentence in a subsequent proceeding that upset a defendant's legitimate expectation of fi- nality." Jones v. Thomas, 491 U.S. 376, 385 (1989 ).' An improper increase to a sentence would occur, for example, "where a judge imposes only a 15-year sen- tence under a statute that permitted 15 years to life, has second thoughts after the defendant serves the sentence, and calls him back to impose another 10 years." Ibid.; see id. at 392-394 (Scalia, J., dissent- ing); cf. United States v. DilFrancesco, 449 U.S. 117, 139 (1980) (government may, notwithstanding Ex parte Lange, appeal a criminal sentence where such action is authorized by statute, since such statute ---------------------------------------- Page Break ---------------------------------------- 28 gives notice that district court's sentence is not final); Pennsylvania v. Goldhammer, 474 U.S. 28, 30-31 (1985) (per curiam) (same; remanding for inquiry into whether State, law authorized prosecution's ap- peal) ; United States v. Martin Linen Supply Co., 430 "U.S. at 569 n.6 (noting that, as interpreted in Ex parte Lange, " [t]he Double Jeopardy Clause * * * accords nonappealable finality to a verdict of guilty entered by judge or jury, disabling the Government from seeking to punish a defendant more than once for the same offense"). 5 2. United States v. Halper, supra, was an exten- sion of the second principle of Ex parte Lange-i.e., the rule that a judgment of conviction in a criminal case, once it has become final and unappealable, may not be modified so- as to increase the sentence al- ready imposed. Halper was criminally prosecuted and convicted in 1985 of violating the false-claims statute, 18 U.S.C. 287 (1982), by submitting 65 in- flated Medicare claims that each charged $12 for what was really a $3 procedure. He was sentenced to two years' imprisonment and fined $5,000. 490 U.S. at 437 & n.2. ___________________(footnotes) 5 To the extent that Martin Linen read Ex parte Lange as requiring "nonappealable" finality for the sentence reflected in a judgment of conviction, see also United States V. Benz, 282 U.S. 304, 307 (1931), this Court's later decision in DiFrancesco rejected that view. While an appellate increase in the sentence imposed by the trial court might be viewed as a second "punishment" in a subsequent "proceeding," the Court held that the defendant can have no legitimate expecta- tion of finality when a statute authorizes the government's appeal, so that the hearing of the appeal amounts "at the most [to the second part of] a two-stage sentencing proce- dure." United States v. DiFrancesco, 449 U.S. at" 140 n.16. ---------------------------------------- Page Break ---------------------------------------- 29 The government later sought civil sanctions based on the same inflated claims under 31 U.S.C. 3729- 3731 (1982), a "fixed-penalty-plus-double-damages provision []" of the type that "in the ordinary case * * * can be said to do no more than make the Gov- ernment whole." 490 U.S. at 438, 449. That statute required for each violation a penalty of $2,000, an additional amount equal to two times the govern- ment's damages, and the costs of the civil action, Id. at 438. Because of his numerous violations, however, "Halper * * * appeared to be subject to a statutory penalty of more than $130,000." Ibid. The district court refused to enter judgment in that amount, rea- soning that a penalty "more than 220 times greater than the Government's measurable loss qualified as punishment which, in view of Halper's previous crim- inal conviction and sentence, was barred by the Double Jeopardy Clause." Id. at 439-440. On the government's direct appeal, this Court agreed with that conclusion. The Court framed the issue as whether "in a par- ticular case a civil penalty * * * may be so extreme and so divorced from the Government's damages and expenses as to constitute punishment." 490 U.S. at 442. In answering that question, the Court carefully distinguished the approach it had taken in Ward and similar cases, which, the Court explained, "is appro- priate in identifying the inherent nature of a proceed- ing, or in determining. the constitutional. safeguards that must accompany those proceedings as a general matter." Id. at 447. By contrast, the Court noted, "the Double Jeopardy Clause's proscription of mul- tiple punishments * * * is intrinsically personal," ibid., and "requires a particularized assessment of the penalty imposed and the purposes that the penalty ---------------------------------------- Page Break ---------------------------------------- 30 may fairly be said to serve," id. at 448. The Court concluded that "the labels `criminal' and `civil' are not of paramount importance" in that inquiry, since "in determining whether a particular civil sanction constitutes criminal punishment, it is the purposes actually served by" the sanction in question, not the underlying nature of the proceeding giving rise to the sanction, that must be evaluated." Id. at 447 & n.7. The Court accordingly h[e]ld that under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribu- tion. Id. at 448-449 (emphasis added). That holding, the Court emphasized, was "a rule for the rare case," in which a defendant is subjected to a sanction so "overwhelmingly disproportionate to the damages he has caused" that "it constitutes a second punish- ment." Id. at 449, 450. The Court's holding demonstrates that, "[w]hat- ever else may be said about" Halper, "it d [id] not alter the fundamental principle that an accused must suffer jeopardy before he can suffer double jeopardy." Serfass v. United States, 420 U.S. at 393. Halper did not hold that a "punishment" imposed in a civil proceeding is a "jeopardy" that triggers protection against a later criminal prosecution. Nor did Halper hold that whether a proceeding is properly charac- terized as criminal in nature is irrelevant to applica- bility of the Clause's protections. Instead, Halper held that, when the defendant has been criminally ---------------------------------------- Page Break ---------------------------------------- 31 prosecuted and punished, the finality branch of the multiple punishments doctrine precludes an increase in the defendant's sentence even when, as a formal matter, the additional punishment would result from a civil statute that is nonpunitive in the great ma- jority of its applications. The multiple punishments principle that has devel- oped from Ex parte Lange to Halper turns on the notion that criminal convictions and their resulting sentences, at some point, achieve a degree of finality that is worthy of societal protection. Those cases express the view that once the government has ex- acted a punishment through the criminal process and has obtained a final judgment, a defendant may not be called upon to bear a second punishment for the same offense, whether the punishment be explicitly criminal, as in Lange, or so punitive as to amount to the same result, as in Halper. While the use of the Double Jeopardy Clause to protect against multiple punishments has been questioned, see Department of Revenue of Montana v. Kurth Ranch, 114 S. Ct. at 1955-1959 (Scalia, J., dissenting), what has not been questioned is that the doctrine, as formulated, takes as its predicate an initial "jeopardy"-a risk of crim- inal conviction before a body competent to decide the question of guilt or innocence. In describing the con- sequences of a final criminal judgment, the doctrine thus belongs to the constitutional "common law" that pertains to the rights that follow from being placed in "jeopardy" in a criminal case. Compare Ashe v. Swenson, 397 U.S. 436 (1970) (Double Jeopardy Clause embodies "collateral estoppel" doctrine). In keeping with that understanding, Halper re- peatedly emphasized the fact of the earlier criminal prosecution, see 490 U.S. at 441, 448-449, 449, and ---------------------------------------- Page Break ---------------------------------------- 32 explained that, "when the Government already has imposed a criminal. penalty and seeks to impose addi- tional punishment in a second proceeding, the Double Jeopardy Clause protects against the possibility that the Government is seeking the second punishment be- cause it is dissatisfied with the sanction obtained in the first proceeding," id. at 451 n.10 (emphasis added). And the Court concluded by stating that "the only proscription established by [its] ruling is that the Government may not criminally prosecute a defendant, impose a criminal penalty upon him, and then bring a separate civil action based on the same conduct and receive a judgment that is not rationally related to the goal of making the Government whole." Id. at 451 (emphasis added). Nothing in Austin v. United States, supra, changes the conclusion that an initial "jeopardy''-i.e., a prior criminal prosecution -is a prerequisite to the invoca- tion of the Double Jeopardy Clause. Austin did not involve the Double Jeopardy Clause at all. It held that the civil forfeiture provisions at issue in that case (21 U.S.C. 881 (a) (4) and (7) ) triggered the applicability of the Eighth Amendment's Excessive Fines. Clause. The Court expressly distinguished two of its double jeopardy precedents concerning the for- feiture of contraband or goods involved in customs violations, after noting that the forfeitures in both of those cases were remedial. 113 S. Ct. at 2811-2812 (citing 89 Firearms, 465 U.S. at 364, and One Lot Emerald. Cut Stones, 409 U.S. at 237). The Austin Court did rely on Halper in assessing whether in rem civil forfeitures could be viewed as a "punishment" that triggers the protections of the Eighth Amend- ment. 113 S. Ct. at 2805,280.6, 2810 n.12, 2812. But Austin did not purport to alter Halper's double jeop- ---------------------------------------- Page Break ---------------------------------------- 33 ardy holding as a rule for "the rare case" in which "a prolific but small-gauge offender [was subjected] to a [civil] sanction overwhelmingly disproportionate to the damages he has caused," after having been criminally prosecuted and punished. 490 U.S. at 449. Department of Revenue of Montana v. Kurth Ranch, supra, the third case on which the Ninth Cir- cuit relied, does not support, much less "compel [] ," 95-346 Pet. App. 25a, that court's interpretation of Halper and Austin, Kurth Ranch mentioned Austin only in passing to describe Austin's Eighth Amend- ment holding, 114 S. Ct. at 1945, and actually held that Halper did not furnish the proper framework for analyzing the issue before the Court, which was whether the Double Jeopardy Clause barred collection of Montana's tax on the possession of dangerous drugs after the "taxpayers" had been criminally prosecuted and punished. Id. at 1948. The Court struck down the tax based on several "unusual features" in the statute that authorized it, which "[t]aken as a whole" rendered the tax "a concoction of anomalies." Id. at 1947, 1948. Specifically, the Court found it signifi- cant that the statute conditioned liability on commis- sion of a crime, that the tax was due and collectable "only after the taxpayer ha [d] been arrested for the precise conduct that gives rise to the tax obligation in the first place," that the tax was an in personam sanction that was exacted after the drugs had been confiscated am.? destroyed, and that the tax amounted to more than eight times the market value of- the drugs. Id. at 1947. As the Court noted, "[a] tax on `possession' of goods that no longer exist and that the taxpayer never lawfully possessed has an un- mistakably punitive character" especially when it is "imposed on criminals and no others." Id. at 1948. ---------------------------------------- Page Break ---------------------------------------- 34 Those "exceptional" (114 S. Ct. at 1948) features persuaded the Court that the proceeding to collect the tax "was the functional equivalent of a successive criminal prosecution that placed the [taxpayers] in jeopardy a second time `for the same offence' " for which they had previously been criminally prosecuted. Ibid. That holding of Kurth Ranch, and the Court's conclusion that the Halper test was inapplicable, sug- gest that the Court viewed the proceeding to- collect the tax as "essentially criminal," see Helvering v. Mitchell, 303 U. S." at 400, and thus that it violated the Double Jeopardy Clause's prohibition on succes- sive criminal prosecutions. Kurth Ranch therefore may be best understood as falling into the long line of decisions, including Mitchell, Mendoza-Martinez, and Ward, that have considered whether a civil statute is so inherently punitive in nature that the safeguards applicable to criminal prosecutions must be applied. It does not signal a departure from the case-by-case approach adopted in Halper in the multiple punish- ments context, which requires an assessment of the purposes served by a particular sanction as applied to the case at hand. Still less does Kurth Ranch dis- pense with a prior criminal "jeopardy" as a prerequi- site for invoking `multiple punishments analysis. The Court's most recent double jeopardy decision, Witte v. United States, 115 S. Ct. 2199 (1995), also undermines the broad reading of Halper and Kurth Ranch adopted by the courts below, because it con- firms that those cases do not change the long-standing rule that a person must first suffer the risk of con- viction for a crime before he may claim any double jeopardy violation. Witte was first convicted of at- tempting to possess marijuana with intent. to dis- tribute it. His sentence for that offense was increased ---------------------------------------- Page Break ---------------------------------------- 35 on the basis of the trial judge's `finding that' he had also participated in cocaine importation offenses. When Witte was later separately indicted for those cocaine offenses, he sought dismissal of the charges on the ground that he had already been "punished" for them during the sentencing on the marijuana charge. Although Witte relied on Halper and Kurth Ranch, see Brief for Petitioner at 32-34, Witte v United States, No. 94-6187 (0.T. 1994), and a broad interpretation of those cases could have supported his claim, see Witto v United States, 115 S. Ct. at 2209-2210 (Scalia, J., concurring in the judgment) ; id. at 2212-2213 (Stevens, J., concurring in part and dissenting in part), this Court rejected it. The Court noted that Witte "clearly was neither prosecuted nor convicted of the cocaine offenses during the first crim- inal proceeding, " id. at 2204, and concluded that he also was not "punished" for those offenses when, his earlier sentence was increased, because "for double jeopardy purposes" he could be deemed to have suf- fered " `punishment' * * * only for the offense of which [he was] convicted," id. at 2205; see also id. at 2206. In other, words, because Witte was not at risk of conviction for the cocaine offenses when he was sentenced on the marijuana charge, he had failed to meet the threshold predicate for either a multiple prosecutions or a Halper multiple punishments claim. 3. The foregoing analysis demonstrates that the Sixth Circuit fundamentally erred by concluding that "jeopardy attached" when respondent Ursery settled the civil forfeiture action, and that this "jeopardy" barred the later jury trial on the criminal charges against him. 95-345 Pet. App. 6a-9a. As we have explained, the concept of "jeopardy" requires a pro- ceeding in which a defendant risks conviction for a ---------------------------------------- Page Break ---------------------------------------- 36 criminal offense, with all the unique consequences that attend that societal judgment. Only a defendant who has suffered that particular type of "intrinsically personal" (United States v. Halper, 490 U.S. at 447) risk may thereafter lay claim to the "constitutional policy of finality * * * in federal criminal proceed- ings" (United States v. Jorn, 400 U.S. at 479 (plur- ality opinion of Harlan, J.)) that the Double Jeop- ardy Clause represents. The consent judgment entered in the in rem action involving respondent Ursery's property did not subject him to that sort of risk of a criminal trial or punishment; it merely con- cluded a civil action involving his property. The Sixth Circuit drew an analogy between that consent judgment and a guilty "plea entered pur- suant to a plea agreement." 95-345 Pet. App. 7a. A plea of guilty to a criminal offense, however, "is itself a conviction. Like a verdict of a jury it is conclu- sive." Kercheval v. United States, 274 U.S. 220, 223 (1927) ; accord United States v. Broce, 488 U.S. 563, 570 (1989). Because Ursery was not placed "in jeopardy" by the judgment entered in the in rem civil forfeiture action, he did not meet the threshold re- quirement for the applicability of Halper's multiple punishments analysis or any other double jeopardy claim. The Sixth Circuit accordingly erred in order- ing the dismissal of his later judgment of conviction on double jeopardy grounds. C. The In Rem Civil Forfeitures In These Cases Did Not Impose `Punishment" For Purposes Of The Multiple Punishments Inquiry The Sixth and Ninth Circuits concluded that the civil forfeiture statutes at issue here necessarily and categorically inflict "punishment" on property owners for purposes of the Double Jeopardy Clause. As we ---------------------------------------- Page Break ---------------------------------------- 37 have shown, under this Court's cases, a "multiple punishments" inquiry is relevant only when a defend- ant has been criminally prosecuted, convicted, and sentenced. Accordingly, the inquiry should not have been undertaken at all in Ursery. Even if such an inquiry were appropriate, however, neither the for- feiture of the property used to facilitate the narcotics crimes in Ursery nor the property forfeited as pro- ceeds of narcotics-related crimes in $405,089.28 should be characterized as "punishment" for purposes of the Double Jeopardy Clause. 1. The forfeiture of the facilitating property in Ursery is not punishment. Under United States v. Halper, the issue whether a particular civil sanction amounts to "punishment" within the meaning of the Double Jeopardy Clause turns on an analysis of the sanction's purposes. 490 U.S. at 448. In our view, the proper inquiry in the multiple punishments con- text is whether, as applied in a particular case, the sanction is rationally related to legitimate remedial aims. In the case of the forfeiture of property that facilitates a crime, we believe that the sanction should generally be regarded as remedial. a. The "hold[ing]" of Halper is that a civil sanc- tion is punitive if it "may not fairly be characterized as remedial, but only as a deterrent or retribution." 490 U.S. at 448-449 (emphasis added). Under the holding of Halper, a dominant. remedial purpose ren- ders a sanction nonpunitive for purposes of the Double Jeopardy Clause, even if the sanction could also be said, in some respects, to act as a deterrent. Thus, Halper adopted a "rational-relationship re- quirement," whereby a sanction is deemed punitive when it "is not rationally related to the [nonpunitive] goal" that it purports to serve. Id. at 451 & n.12; ---------------------------------------- Page Break ---------------------------------------- 38 compare Bell v. Wolfish, 441 U.S. 520, 539 (1979) ("[I]f a restriction or condition is not reasonably related to a legitimate goal-if it is arbitrary or purposeless-a court permissibly may infer that the purpose of the governmental action is punishment"); United States v. Salerno, 481 U.S. 739, 746-747 (1987). Some language in Halper may be read to suggest that a civil sanction with any deterrent purpose should be viewed as "punishment," 490 U.S. at 448.' In our view, that formulation would sweep too broadly. Such a conception -of punishment is not supported by the precedent on which Halper relied? And a "test" ___________________(footnotes) 6 The Court stated: [w]e have recognized in other contexts that punishment serves the twin aims of retribution and deterrence. See, e.g., Kennedy V. Mendoza-Martinez, 372 U.S. 144, 168 (1963) (these are the "traditional aims of punishment"). Furthermore, "[retribution and deterrence are not legit- imate nonpunitive governmental objectives." Bell V. Wolfish, 441 U.S. 520, 539, n. 20 (1979). From these premises, it follows that a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retri- butive or deterred purposes, is punishment, as we have come to understand the term. United States V. Halper, 490 U.S. at 448. 7 The authorities cited by Halper in the passage quoted at note 6, supra, do not require the conclusion that the presence of a deterrent component in a sanction having multiple pur- poses is "punishment." Mendoza-Martinez listed factors rele- vant to whether a statute is so penal that it must be viewed as imposing criminal punishment; one of those factors is whether the statute's operation promotes retribution and deterrence. Bell V. Wolfish, 441 U.S. 520 (1979), the second case cited by Halper, used the Mendoza-Martinez factors as guideposts to determine whether particular practices of prison ---------------------------------------- Page Break ---------------------------------------- 39 that considers any deterrent purpose to qualify a civil sanction as punishment diverges from the carefully circumscribed approach taken in Halper. There are few, if any, civil sanctions that do not serve in part to deter, and many are deliberately employed in part for that purpose. The view that any deterrent ele- ment means punishment would be inconsistent with the Halper Court's own emphasis on the limited scope of its ruling. See id. at 449, 450; see also Kurth Ranch, 114 S. Ct. at 1946. Austin, however, relied on the broader formula- tion in Halper in holding that the forfeiture of prop- erty used to facilitate narcotics offenses is sufficiently punitive to warrant application of the Eighth Amend- ment's prohibition of excessive fines. 113 S. Ct. at 2806, 2810 & n.12, 2812. After noting various his- torical and contemporary features of forfeiture stat- utes that it viewed as signaling a punitive purpose, 8 ___________________(footnotes) administrators were "punishment." While the Court in Bell V. Wolfish did state generally that retribution and deterrence are punitive purposes, its overall test for measuring the na- ture of a sanction did not require that any element of deter- rence makes a sanction punitive. Rather, Bell V. Wolfish states: "[1] f a particular condition or restriction * * * is reasonably related to a legitimate governmental objective, it does not, without more, amount to `punishment.'" 441 U.S. at 539. 8 Austin found that in rem forfeitures "historically have been understood, at least in part, as punishment," 113 S. Ct. at 2810, and that nothing in 21 U.S.C. 881 (a) (4) and (7) affirmatively dispelled that understanding. On the contrary, the Court noted that those subsections contain innocent-owner defenses that "serve to focus the provisions on the culpability of the owner in a way that makes them look more like punish- ment," that Congress "has chosen to tie forfeiture directly to the commission of drug offenses," and that the legislative ---------------------------------------- Page Break ---------------------------------------- 40 the Court stated that, even on the assumption that forfeiting the instrumentalities of crime serves "some remedial purpose," the Eighth Amendment would still apply to those forfeitures because the Court could not conclude that- they "serve [] solely a remedial purpose." Id. at 2812 (emphasis added). The Court should not apply that test here. The sole question in Austin was whether the Ex- cessive Fines Clause of the Eighth Amendment ap- plies to in rem forfeitures, and the Court could have answered that question without reference to Halper's language at all. The dictionary definition of a "fine" -a "payment to a sovereign as punishment for some offense," 113 S. Ct. at 2812-does not require that punishment be the sole reason for a particular levy, and the Court concluded that the Framers understood the words "fine" and "forfeiture" to be synonymous. Id. at 2808 & n.7. Moreover, Austin expressly recog- nized that it "ma [d] e little practical difference" in that case whether the Excessive Fines Clause were held to apply to all forfeitures under the statutes at issue in that case, "or only to those that cannot be characterized as purely remedial." Id. at 2812 n.14. The practical consequences of applying the Eighth Amendment occur only when a fine is excessive, and "a fine that serve [d] purely remedial purposes [could not] be considered `excessive' in any event." Ibid. ___________________(footnotes) history of those provisions characterized them as a "powerful deterrent." 113 S. Ct. at 2810-2811. The Court was also unpersuaded that conveyances used to commit drug crimes can be compared to "contraband," the forfeiture of which is concealedly remedial, or that the forfeiture of such property furnishes a reasonable form of liquidated damages, since its value may vary dramatically. Id. at 2811-283.2. ---------------------------------------- Page Break ---------------------------------------- 41 The extension of Austin's reasoning, however, to the double jeopardy setting would have significant practical consequences. In that setting, a categorical conclusion that all civil forfeitures under the statute at issue constitute punishment would defeat the case- by-case approach adopted in Halper itself. 9 It could also completely bar a later criminal prosecution of the property owner, even if the particular prior civil forfeiture were fairly characterized as substantively remedial. That result would greatly expand Halper's rule "for the rare case." 490 U.S. at 449. And if Austin's formulation were extended to other contexts, it could cast unwarranted doubt on the constitution- ality of practices that have long been thought entirely proper, see, e.g., State v. Hickam, 668 A.2d 1321 (Corm. 1995) (double jeopardy challenge to DWI prosecution that followed suspension of motorist's license), would lead to increased litigation about mat- ters unrelated to the basic concerns of the relevant constitutional provision, and likely would ultimately prove unworkable. Cf. Sandin v. Conner, 115 S. Ct. 2293, 2300 & n.5 (1995). 10 ___________________(footnotes) 9 Under Halper's approach, only so much of a sanction as constitutes punishment would be barred by a criminal convic- tion for the same offense. 490 U.S. at 449-450, 452; cf. Morris V. Mathews, 475 U.S. 237, 244-247 (1986). Under the cate- gorical approach, all of the sanction would presumably be barred. 10 That the analysis of whether punishment is imposed may differ in the excessive fines and double jeopardy contexts is consistent with this Court's general treatment of forfeiture issues. Indeed, if anything is clear from this Court's cases, it is that this Court's characterization of forfeiture as either punitive or remedial has depended upon the specific legal context in which that question arose. Thus, in Boyd v. United States, 116 U.S. 616, 634 (1886), and United States V. United ---------------------------------------- Page Break ---------------------------------------- 42 The mainstream of this Court's cases supports Halper's actual holding that a sanction is punitive only if it cannot rationally be explained by reference to a nonpunitive interest. See, e.g., Bell v. Wolfish, 441 U.S. at 539. Just one Term after Austin, the majority in Kurth Ranch recognized that in the dou- ble jeopardy context even "an obvious deterrent pur- pose" does not necessarily mark government practices as "punishment." 114 S. Ct. at 1946. Two of the dissenting Justices in Kurth Ranch, who voted for the result in Austin expressly reaffirmed the more limited formulation reflected in Halper's holding. See id. at 1952 (Rehnquist, C. J., dissenting) ("[T]he proper inquiry is * * * whether [the tax] is so high that it can only be explained as serving a punitive purpose") ; id. at 1953 (O'Connor, J., dissenting) ("Our double jeopardy cases make clear that a civil sanction will be considered punishment to the extent that it serves only the purposes of retribution and deterrence, as opposed to furthering any nonpunitive objective" ). In addition, while Austin relied on several factors in concluding that the forfeiture of instrumentalities of drug crimes is sufficiently punitive to trigger ___________________(footnotes) States Coin & Currency, 401 U.S. 715, 718 (1971), the Court characterized forfeiture as "criminal in nature" for purposes of determining whether a claimant in a forfeiture action could invoke the Fifth Amendment privilege against self- incrimination. See also One 1958 Plymouth Sedan V. Pennsyl- vania, 380 U.S. 693, 700-702 (1965) (finding, in light of forfeiture's role as a penalty, that Fourth Amendment's ex- clusionary rule applies). Subsequently, however, in One Lot Emerald Cut Stones and 89 Firearms, the Court reaffirmed the rule that in rem forfeitures serve substantial remedial ends and do not constitute punishment for double jeopardy purposes. ---------------------------------------- Page Break ---------------------------------------- 43 Eighth Amendment scrutiny, those factors have never traditionally been held sufficient to brand such for- feitures as punitive for purposes of the Double Jeopardy Clause. For example, while a statutory innocent-owner defense is of relatively recent vintage, equivalent administrative mitigation remedies that depend on the absence of "willful negligence" on the part of property owners have been available since 1790. See Calero-Toledo, 416 U.S. at 689 n.27. Sim- ilarly, a historical understanding of a particular sanc- tion as "punishment" is one of the several Mendoza- Martinez factors that this Court in 89 Firearms concluded was not implicated by an in rem forfeiture. See 89 Firearms, 465 U.S. at 365 & n.7. Finally, while forfeitures of "facilitating property" are tied to the commission of certain crimes, their scope is much broader because they apply to property "in- tended" to be used in those crimes even if such an "intent" is not itself a crime. Cf. id. at 363-364. In any event, under Halper the last-mentioned factor merits minimal weight in the double jeopardy cal- culus, because in that case the defendant became liable for a civil penalty only after engaging in con- duct that also constituted a crime, see United States v. Halper, 490 U.S. at 438; see also United States ex rel. Marcus v. Hess, 317 U.S. at 549; Murphy v. United States, 272 U.S. 630, 632 (1926) (Holmes, J.), yet the Court nevertheless concluded that a civil penalty amounts to punishment only when it is so disproportionate to the government's claimed interest in compensation that it cannot rationally be justified, on a case-by-case basis, by reference to that interest. 490 U.S. at 449. 11 ___________________(footnotes) 11 The Court in Austin also consulted the legislative history of the drug forfeiture statutes, noting that the Senate Report ---------------------------------------- Page Break ---------------------------------------- 44 b. Applying Halper, the appropriate case-by-case inquiry in the context of forfeitures of property used to facilitate narcotics crimes is whether the nexus between the particular property and the crime com- mitted or intended is close enough so that the for- feiture may rationally be thought to further one or more of the remedial goals that traditionally have justified that in rem remedy. Those goals are (1) inducing owners to exercise all reasonable care in managing their property, see, e.g., Calero-Toledo, 416 U.S. at 687-688; Van Oster, 272 U.S. at 467-468; (2) abating a nuisance or wrong, 12 see, e.g., Dob- ___________________(footnotes) had characterized the forfeiture of real property used for drug storage or manufacture as a "powerful deterrent." 113 S. Ct. at 2811 (quoting S. Rep. No. 225, 98th Cong., 1st Sess. 195 (1983) ). As we argue above, however, the presence of some deterrent objetive should not result in civil forfeiture being deemed categorically punitive for double jeopardy purposes. 12 The reported cases provide graphic examples of the use of 21 U.S.C. 881 (a) (7) to meet this traditional objective of in rem forfeitures. In United States V. 141st Street Corp., 911 F.2d 870 (2d Cir. 1990), cert. denied, 498 U.S. 1109 (1991), nearly an entire apartment building was used to sell crack cocaine, and persistent efforts to compel the legal owners of the building to remedy the situation had failed. See Id. at 873. Similarly, conveyances forfeitable under 21 U.S.C. 881 (a) (4) may be specially adapted to smuggle drugs, and the removal of such a conveyance from commerce undeniably serves a remedial purpose. See United States V. One 1983 Homemade Vessel Named "Barracuda", 858 F.2d 643 (11th Cir. 1988]; cf. United States V. Chandler, 36 F.3d 358, 364 (4th Cir. 1994) ("Forfeiture of a $14 million yacht, specially outfitted with high-powered motors, radar, and secret com- partments for the sole purpose of transporting drugs from a foreign country into the United States, would probably offend no one's sense of excessiveness"), cert. denied, 115 S. Ct. 1792 (1995) . ---------------------------------------- Page Break ---------------------------------------- 45 bin's Distillery, 96 U.S. at 400; United States v. Cargo of Brig Malek Adhel, 43 U.S. (2 How.) 210, 233 (1844) ; and (3) "insuring an indemnity to the injured party," United States v. Cargo of Brig Malek Adhel, 43 U.S. (2 How.) at 233; see Republic Na- tional Bank v. United States, 506 U.S. 80, 87 (1992) (in rem forfeiture developed, in part, "to furnish remedies for aggrieved parties" ). The last objective -compensating an injured party-extends as well to the government, see United States ex rel. Marcus v. Hess, 317 U.S. at 551, which may fairly ask that each person whose property contributes to the harms caused by drug trafficking also contribute to defray- ing the government's costs of enforcement and the societal harms created by that activity. Cf. Halper, 490 U.S. at 446 n.6 (government may recover its "investigative and prosecutorial costs"); Kurth Ranch, 114 S. Ct. at 1953-1954 (O'Connor, J., dis- senting); United States v. Certain Real Property & Premises Known as 38 Whalers Cove Drive, 954 F.2d 29, 37 (2d Cir.) (government may be allowed "[a] reasonable allocation of more generalized enforce- ment costs-in the nature of overhead"), cert. denied, 506 U.S. 815 (1992) . In general, we believe that the forfeiture of the instrumentalities of crime is a rational means to achieve those remedial goals, and that it would take a "rare case," Halper, 490 U.S. at 449, to estab- lish otherwise. 13 Such a rare case might occur if ___________________(footnotes) 13 In the course of its Eighth Amendment analysis, the Austin Court did express doubt that, as a categorical matter, the forfeiture of instrumentalities of crime could be char- acterized as remedial. 113 S. Ct. at 2811. The Court declined to equate conveyances and buildings involved in drug crimes ---------------------------------------- Page Break ---------------------------------------- 46 extremely valuable property were minimally involved in the offense, such that the forfeiture would be ra- tionally explicable only on the basis that it is intended to impose punishment for the purposes of the Double Jeopardy Clause. Short of that situation, however, a court should not reach the conclusion that a for- feiture of facilitating property is punitive for double jeopardy purposes. In light of those principles, respondent Ursery cannot meet his initial burden (United States v. Halper, 490 U.S. at 449) of establishing that the government's action in seeking forfeiture of his prop- erty was apparently punitive. Because respondent used the property for several years to process and distribute a controlled substance, it significantly fur- thered the harms occasioned by drug trafficking. And because respondent made no showing that a forfeiture valued at $13,250 represented a recovery `exponen- tially" in excess of the government's likely costs of enforcement, see Id. at 445, the government's action in seeking its forfeiture appears rationally to serve the traditional remedial goals of in rem forfeiture. Nothing in that action, therefore, suggests that the ___________________(footnotes) to "contraband," and it found that the value of the property forfeitable on an instrumentality theory has no correlation to the harm caused by the underlying offense or to the costs of law enforcement. Id. at 2811-2812. On the case-by-case analy- sis applicable in the double jeopardy multiple punishments setting, see United States v.Halper, 490 U.S. at 452, however, the forfeiture of particular property may he integrally tied to the eradication of drug crime (see note 12, sup-a), and the nexus between the property's value and the costs of law enforcement may provide the "rough remedial justice," id. at 446, to which the government is entitled. Those purposes would characterize the forfeiture as remedial. ---------------------------------------- Page Break ---------------------------------------- 47 forfeiture could rationally be explained only as an attempt to inflict punishment. 2. The forfeiture of proceeds is not punishment. Even if the Court disagrees with our submission that Austin does not control the punishment question pre- sented in Unsery, and holds that the civil action in that case inflicted "punishment" for double jeopardy purposes, we believe that a different conclusion none- theless is required in $405,089.23. The district court in that case granted summary judgment in our favor on the ground, among others, that the assets at issue were "proceeds" of narcotics trafficking. See Pet. App. 3a-4a. As a plurality of this Court recognized in 92 Buena Vista Ave., supra, statutes authorizing the forfeiture of "proceeds" are a recent development in forfeiture law. See 113 S. Ct. at 1133-1134 & n.16 (noting that first such statute was enacted in 1978). Accordingly, Austin's historical analysis of in rem forfeitures as being "in part" punitive (113 S. Ct. at 2810) does not speak to this category of relief sought by the government. The "forfeiture of proceeds from illegal drug sales is more closely akin to the seizure of the proceeds from the robbery of a federal bank than the seizure of lawfully derived real property." United States v. Tilley, 18 F.3d 295, 300 (5th Cir.), cert. denied, 115 S. Ct. 573, 574 (1994); cf. 92 Buena Vista Ave., 113 S. Ct. at 1133 n.15 (noting that "stolen property- the fruits of crime-was always subject to seizure" under the Fourth Amendment) ; Caplin & Drysdale, Chtd. v. United States, 491 U.S. 617, 626 (1989) ("[T]he Government does not violate the Sixth Amendment if it seizes the robbery proceeds and refuses to permit the defendant to use them to pay for his defense" ). When the government forfeits ---------------------------------------- Page Break ---------------------------------------- 48 such proceeds, it does no more than prevent unjust enrichment, a plainly remedial goal. See, e.g., United States v. Carson, 52 F.3d 1173, 1182-1183 (2d Cir. 1995) (disgorgement order in civil RICO case is not "punishment" for double jeopardy purposes because "[d]isgorgement, by design, is compensatory''), cert. denied, No. 95-6929 (Feb. 20, 1996); SEC v. Bilzerian, 29 F.3d 689, 696 (D.C. Cir. 1994) (dis- gorgement of profits made during securities law vio- lation is purely remedial); see also Rex Trailer Co. v. United States, 350 U.S. 148, 153-154 & n.6 (1956). Any other view would lead to the absurd result that a bank robber who is arrested as he exits the bank, and from whom the stolen money is seized at that time, may not thereafter be prosecuted for the robbery. As the Fifth Circuit has explained, [w]hen * * * the property taken by the govern- ment was not derived from lawful activities, the forfeiting party loses nothing to which the law ever entitled him. * * * The possessor of pro- ceeds from illegal drug sales never invested hon- est labor or other lawfully derived property to obtain the subsequently forfeited proceeds. Con- sequently, he has no reasonable expectation that the law will protect, condone, or even allow, his continued possession of such proceeds because they have their very genesis in illegal activity. United States v. Tilley, 18 F.3d at 300; accord United States v. Salinas, 65 F.3d 551, 553-554 (6th Cir. 1995) (following Tilley); United States V. $184,505.01, 72 F.3d 1160 (3d Cir. 1995) (same); see also United States V. Clementi, 70 F.3d 997, 999- 1000 (8th Cir. 1995) (rejecting Ninth Circuit's anal- ysis); but see United States v. 9844 South Titan ---------------------------------------- Page Break ---------------------------------------- 49 Court, No. 94-1285, 1996 WL 49002 (10th Cir. `Feb. 5, 1996). Moreover, while the Court was not per- suaded in Austin that lawfully acquired property that is used merely to facilitate a crime should be viewed as contraband, property received in exchange for controlled substances bears a much closer nexus to the illegality and may, as Judge Rymer argued below, fairly be characterized as "the functional equivalent of contraband," 95-346 Pet. App. 27a, the forfeiture of which is "remedial." Austin v. United States, 113 S. Ct. at 2811. Finally, as the Seventh Circuit recently recognized, proceeds forfeitures can never be out of propor- tion to the "loss" suffered by the government or society. If there has been a finding that certain property, for instance, is forfeitable pursuant to 881 [a] (6) as proceeds of drug trafficking, it is directly equal to that part of the profits with which it was purchased. It directly represents at least a portion of the profits and can thus be less than or equal to society's loss, but not more than the loss. * * * That being the case, the forfeiture of proceeds acquired from drug dealing can hardly be termed punishment. Smith v. United States, No. 95-2259, 1996 WL 72858, at *3 (Feb. 21, 1996). For these reasons, the Ninth Circuit's conclusion that the forfeiture of the proceeds that respondents obtained from years of drug dealing is punishment simply "has to be wrong." 95-346 Pet. App. 28a (Rymer, J., dissenting from denial of rehearing). Instead, the forfeitures at issue in $.405,089.23 are remedial, and they cannot constitute punishment under the Double Jeopardy Clause. ---------------------------------------- Page Break ---------------------------------------- 50 D. If Civil In Rem Forfeiture Amounts To An "Offense" For Which Respondents Were Placed In Jeopardy, It Is Not The "Same Offense" As The Crimes For Which They Were Prosecuted 1. The Double Jeopardy Clause prohibits multiple punishments or successive prosecutions only for the "same offence." The test `for determining whether two offenses are the "same" for double jeopardy pur- poses is the "statutory elements" test set forth in Block burger v. United States, 284 U.S. 299, 304 (1932): "The applicable rule is that where the same act or transaction constitutes a violation of two dis- tinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." See also Brown v. Ohio, 432 U.S. 161, 166 (1977) ("Th[e] [Block- burger] test emphasizes the elements of the two crimes"). Accordingly, if each statute at issue "re- quires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a sub- stantial overlap in the proof offered to establish the crimes." Iannelli v. United States, 420 U.S. 770, 785 n.17 (1975); see also United States v. Felix, 503 U.S. 378, 386 (1992) (" [A] mere overlap in proof between two prosecutions does not establish a double jeopardy violation") ; Albernaz v. United States, 450 U.S. 333, 338 (1981). The Blockburger test applies in both the multiple punishments and successive pros- ecutions contexts. See United Slates v. Dixon, 113 S. Ct. at 2856; Witte v. United States, 115 S. Ct. at 2204. 2. A straightforward application of the Block- burger test compels the conclusion that, if civil for- feiture amounts to an "offense" that triggers double ---------------------------------------- Page Break ---------------------------------------- 51 jeopardy protections, as both the Sixth and Ninth Circuits have held, the "offense" punished in the for- feiture proceedings at issue here is not the "same offense" as any of the offenses on which respondents were convicted. Each of the forfeiture statutes re- quires proof that the defendant property played some role in the commission of a crime. Section 981 (a) (1) (A) provides for the forfeiture of "property * * * involved in a transaction or attempted transaction," in violation of four money laundering statutes. Sec- tion 881 (a) (6) authorizes the forfeiture of money "furnished or intended to be furnished" in connec- tion with, "traceable to," or "used or intended to be used to facilitate" a drug trafficking crime. Sim- ilarly, Section 881 (a) (7) requires proof that the defendant real property was "used, or intended to be used, * * * to commit, or to facilitate the commission of," a drug crime. The respondents in $405,089.23' were convicted of conspiracy to commit drug offenses, in violation of 21 U.S.C. 846; possession of a controlled substance with the intent to distribute it, in violation of 21 U.S.C. 841 (a) (1); conspiracy to launder monetary instru- ments, in violation of 18 U.S.C. 371; and money laundering, in violation of 18 U.S.C. 1956. The re- spondent in Ursery was convicted of manufacturing marijuana, in violation of 21 U.S.C. 841 (a) (1). None of those statutes requires proof that any property was used in or generated by the offense. Because each of the forfeiture statutes does require that element of proof, each contains an element that the criminal statutes do not. Each of the criminal statutes also requires proof of at least one element not found in the forfeiture statutes. Conviction on the criminal charges required ---------------------------------------- Page Break ---------------------------------------- 52 proof that respondents participated in a conspiracy, possessed a controlled substance with the intent to distribute it, or engaged in unlawful money launder- ing transactions. By contrast, the forfeiture statutes do not require proof of any particular crime, or proof of the participation of the property owner in the of- fenses that supported the forfeiture, much less proof that the owner entertained a mental state required for a criminal conviction. 14 See Origet v. United States, 125 U.S. 240, 246 (1888) ("The person punished for the [criminal] offence may be an entirely different person from the owner of the merchandise, or any person interested in it"); United States v Chandler, 36 F.3d 358, 362 (4th Cir. 1994), cert. denied, 115 S. Ct. 1792 (1995). Indeed, because the government may obtain forfeiture under Section 881 (a) (6) and (7) of property that was merely "intended" for use in a drug offense, forfeiture under those subsec- tions may occur even if no crime actually was com- mitted by anyone. For those reasons, there is no force to the Ninth and Sixth Circuits' view that, since forfeiture stat- utes "incorporate the elements of criminal offenses, forfeitures pursuant to them constitute a species of greater offenses with respect to the lesser-included of- fenses that form the bases of the forfeitures." United States v. One 1978 Piper Cherokee Aircraft, 37 F.3d 489, 495 (9th Cir. 1994); see also 95-345 Pet. App. 12a. Greater- and lesser-included offenses are the "same" for double jeopardy purposes because such of- ___________________(footnotes) 14 Thus for example, an owner of property may be legally innocent of the crime that gives rise to the civil forfeiture, but be unable to meet the requirements of the statutory inno- cent-owner defense. ---------------------------------------- Page Break ---------------------------------------- 53 fenses do not satisfy the Blockburger test. As this Court has made clear, one statute does not define a lesser-included offense of another unless every viola- tion of the statute defining the greater offense "neces- sarily entails a violation of" the statute defining the lesser offense. United States v. Woodward, 469 U.S. 105, 107 (1985) (per curiam) (emphasis added); Brown v. Ohio, 432 U.S. at 168 (offense is lesser- included under Blockburger if it is "invariably true" that the lesser offense "requires no proof beyond that which is required for conviction of the greater") ; see also Schmuck v. United States, 489 U.S. 705, 716, 719 (1989). Because that quite clearly cannot be said of the purportedly "greater" civil forfeiture "offenses" at issue here, the courts below erred in concluding that those offenses are the "same" as the crimes for which respondents were convicted. 15 ___________________(footnotes) 15 Apart from misapplying the "elements" test of the Block- burger decision (i.e., whether the "offenses" are the same in law), the Sixth Circuit in Ursery also ignored a second, and equally dispositive, aspect of the Blockburger decision, viz., whether the offenses at issue are the same in fad. While the better-known holding of Blockburger is addressed to the former question, that case also held that repeated violations of the same statute (which obviously would be the same offense under the "elements" test ) are still different "of- fenses" if each resulted from a fresh "impulse." Blockburger V. United States, 284 U.S. at 301-303; see also United States V. Universal C.I.T. Credit Corp., 344 U.S. 218,224-225 (1952); id. at 220 n.3 (referring to that aspect of Blockburger as addressing what the "unit of prosecution" is). Respondent Ursery was. not charged with, or convicted of, manufacturing marijuana based on any theory that he grew the plants on his property, or that he did so more than once, but rather on the basis that he did so in property belonging to one of his neighbors and on a specific date-July 30, 1992. As Judge Milburn noted in dissent (95-345 Pet. App. 26a-27a; see also ---------------------------------------- Page Break ---------------------------------------- 54 E. If Respondents Were "Punished" By The In Rem Civil Forfeiture Proceedings For The Same Offenses That Led To Their Criminal Convictions, That Punish- ment Occurred In The "Same Proceeding" As The Punishment Imposed By The Criminal Judgments Even if the forfeitures in these cases constituted "punishment" for the offenses for which the claimants were convicted, the "Double Jeopardy Clause simply is not implicated" if the criminal action was part of the same "proceeding" as the forfeiture action, be- cause in a single proceeding "the multiple-punishment issue would be limited to ensuring that the total pun- ishment did not exceed that authorized by the legisla- ture." United States v. Halper, 490 U.S. at 450; see also Missouri v. Hunter, 459 U.S. at 368-369. The Ninth Circuit concluded that parallel civil for- feitures and criminal convictions, being separately docketed and tried, can never be the same proceeding. 95-346 Pet. App. 7a-12a. The Sixth Circuit did not "fully adopt" the Ninth Circuit's approach, but it did hold that the civil and criminal actions were sep- arate proceedings because they were filed four months apart, ended in formally separate judgments entered by different judges, and were not coordinated by the government attorneys involved. 95-345 Pet. App. 16a. The courts below misapprehended the significance of Halper's reliance on the existence of "separate" proceedings. Because the multiple punishments doc- trine protects a criminal defendant's legitimate "ex- ___________________(footnotes) id. at 29a), the civil forfeiture action, by contrast, was based on respondent's use of his own property to facilitate the processing and distribution of marijuana over the period of "several years" that concluded with the search of his residence. ---------------------------------------- Page Break ---------------------------------------- 55 pectation of finality in the original sentence," United States v. DiFrancesco, 449 U.S. at 139; id. at 137; Pennsylvania v. Goldhammer, 474 U.S. at 30; see also United States v. Fogel, 829 F.2d 77, 83-88 (D.C. Cir. 1987) (Bork, J.), a proceeding is impermissible successive for purposes of that doctrine only when it is commenced after that expectation of finality has ripened. As demonstrated by this Court's cases up- holding the government's authority to appeal criminal sentences, the time at which that expectation ripens has nothing to do with whether an increase in the defendant's sentence is ordered by a different judge, is procured by a different government attorney, or is ordered under the caption of a new docket number. Those are common occurrences upon the hearing of any sentencing appeal, and they do not render the appeal a "separate" proceeding at which punishment is impermissible increased. Indeed, Halper itself compels the conclusion that such factors cannot control whether a proceeding is impermissible successive for purposes of the multi- ple punishments inquiry, because the Court expressly stated that "[n]othing in [its] ruling" would pre- clude the government from obtaining a "civil penalty" and "criminal penalties in the same proceeding." 490 U.S. at 450. Because civil and criminal actions can- not be (and never have been) joined together in a single trial under our system of justice, see United States v. Millan, 2 F.3d 17, 20 (2d Cir. 1993), cert. denied, 114 S. Ct. 922 (1994) ; see also United States v. One Single Family Residence, 13 F.3d 1493, 1499 (llth Cir. 1994); United States v. Smith, No. wj- 1568, 1996 WL 34552 (8th Cir. Jan. 31, 1996), slip op. 6, Halper itself casts considerable doubt on the ---------------------------------------- Page Break ---------------------------------------- 56 Ninth and Sixth Circuits' approach to the question.16 And because Halper specifically contemplated that the government could seek both civil and criminal penalties, that case also answers the Ninth Circuit's suggestion (95-346 Pet. App. 22a) that this Court's cases effectively require the government to elect whether it will proceed criminally or civilly? 17 ___________________(footnotes) 16 Even in the context of purely criminal Proceedings, it is not invariably true that formally separate criminal trials involving the same offense amount to "separate" proceedings that trigger double jeopardy protections. See Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 309 (1984) (two-tier state system, even if "technically" resulting in two trials, "can be regarded as * * a single, continuous course of judicial proceedings" that does not implicate the concerns of the Double Jeopardy Clause); see also Ohio V. Johnson, 467 U.S. 493, 500-501 (1984) (no double jeopardy violation to continue prosecution on remaining charges in indictment after defendant chose to plead guilty to lesser-included offenses) . 17 The Ninth Circuit suggested that the government could have sought criminal forfeiture under 18 U.S. 982 and 3554 and 21 U.S.C. 853, and simply added a forfeiture count to the criminal indictment. 95-346 Pet App. 8a-9a. The issue, however, is whether the Double Jeopardy Clause re- quires that the government do so, not whether the government might, in future cases, find ways to mitigate the Ninth Cir- cuit's erroneous interpretation of the Constitution. Moreover, the vast majority of civil forfeiture statutes have no criminal forfeiture analogue. See U.S. Dep't of Justice, Compilation of Selected Federal Asset Forfeiture Statutes (Aug. 1995). As a practical matter, the Ninth Circuit's analysis requires the government to choose between a criminal sentence of imprisonment or fine, on the one hand, and civil forfeiture, on the other, even though Congress quite clearly intended for both to be available. In any event, the Ninth Circuit overlooked the fact that forfeiture under those provisions is an in personam action ---------------------------------------- Page Break ---------------------------------------- 57 As with other double jeopardy questions, the rele- vant inquiry instead is whether the government's conduct "constitute [s] `governmental oppression of the sort against which the Double Jeopardy Clause was intended to protect.' " Justices of Boston Munici- pal Court V. Lydon, 466 U.S. 294, 310 (1984) (quot- ing United States v. Scott, 437 U.S. at 91); accord Ohio v. Johnson, 467 U.S. 493, 502 (1984); United States v. DiFrancesco, 449 U.S. at 142. In the con- text of the interests protected by the multiple pun- ishments doctrine, that type of "oppression" occurs only when the government defeats the defendant's legitimate expectation of finality. The facts of these cases make clear that respondents were well aware that the government intended to seek a full comple- ment of statutorily authorized remedies in civil and criminal actions that were basically contemporaneous. Thus, respondents had actual notice that the criminal sentence would not be the sole sanction sought by the government on the basis of their criminal conduct, and thus they could not reasonably have formed any expectation to the contrary. For that reason, the facts of these cases do not implicate Halper's basic concern that the government is seeking to disturb an ___________________(footnotes) that does not uniformly achieve the ends that Congress envisioned for in rem forfeitures For example, because an in personam forfeiture must be obtained in a criminal trial, it is not available when the criminal defendant/property owner is a fugitive from justice, whose trial may not proceed in absentia. See Crosby V. United States, 506 U.S. 255 (1993). Thus, under the ruling below, if a fugitive owns a crack cocaine-infested tenement, the government has the choice of abating the nuisance through a civil proceeding in rem, but only if it is willing to risk granting him immunity from prosecution in the event he ultimately is caught. ---------------------------------------- Page Break ---------------------------------------- 58 otherwise final criminal judgment because "it is dis- satisfied" with the criminal sentence received by the defendant. United States v. Halper, 490 U.S. at 451 n.10; see also United States v. Smith, slip op. 6. Indeed, the facts of these cases conclusively show that the government did not commence separate civil and criminal actions to defeat any expectation of final- ity to which respondents were legitimately entitled by virtue of the Double Jeopardy Clause. In $405,098.23, the government filed the forfeiture complaint five days after the claimants were charged in a supersed- ing indictment with drug-trafficking and money- laundering offenses. Far from viewing that dual fil- ing as an abusive tactic warranting legal relief, re- spondents discussed the appropriateness of staying the civil action pending the outcome of the criminal case (95-346 Pet. App. 51a). They thus evidenced not only their own inability to discern any double jeopardy injury from the government's dual filings (to which they did not object at all until the case was on appeal, see id. at 5a n.1 ) but also their willingness to deal with the criminal and civil actions seriatim. Cf. Jeffers v. United States, 432 U.S. 137, 154 (1977) (plurality opinion of Blackmun, J.). Similarly, respondent in Ursery was indicted in February 1993, four months after the civil forfeiture action was commenced and long before the outcome of either case could be known. He likewise did not see in the parallel actions any danger to his double jeop- ardy rights. To. the contrary, he elected to settle the forfeiture action, with full knowledge of the pend- ency of the criminal prosecution, and then stood trial on the criminal charges without raising any double jeopardy issue. It was not until after he was ---------------------------------------- Page Break ---------------------------------------- 59 convicted by a jury that he made a double jeopardy claim for the first time. See 95-345 Pet. App. 4a. The unfolding of those events may well suggest that re- spondent, after concluding a bargain he thought fair and equitable in the civil case and unsuccessfully try- ing his luck with the jury in the criminal case, turned to the Double Jeopardy Clause for the "sword" (Ohio v. Johnson, 467 U.S. at 502) that might rescue him from "the consequences of his voluntary choice[s]" (United States v. Scott, 437 U.S. at 99). Those events do not, however, bespeak the type of "governmental overreaching that double jeopardy is supposed to pre- vent." Ohio v. Johnson, 467 U.S. at 502. CONCLUSION The judgments of the courts of appeals should be reversed. Respectfully submitted. DREW S. DAYS, III Solicitor General JOHN C. KEENEY Acting Assistant Attorney General MICHAEL R. DREEBEN Deputy Solicitor General MIGUEL A. ESTRADA Assistant to the Solicitor General KATHLEEN A. FELTON JOSEPH DOUGLAS WILSON Attorneys FEBRUARY 1996 U. S. GOVERNMENT PRINTING OFFICE; 1996 405017 4007 ---------------------------------------- Page Break ---------------------------------------- No. 95-345 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1995 UNITED STATES OF AMERICA, PETITIONER v. GUY JEROME URSERY ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT REPLY BRIEF FOR THE UNITED STATES DREW S. DAYS, III Solicitor General Department of Justice Washington, D.C. 20530 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- TABLE OF AUTHORITIES Cases: Albernaz v. United States, 450 U. S. 333 (1981) . . . . 6 Austin v. United States, 113 S. Ct. 2801 (1993) . . . . 2 Baxter v. Palmigiano, 425 U.S. 308 (1976) . . . . 6 Blockburger v. United States, 284 U. S. 299 (1932) . . . . 4, 5 Department of Revenue of Montana v. Kurth Ranch, 114 S. Ct. 1937 (1994) . . . . 3 Grady v. Corbin, 495 U.S. 508 (1990) . . . . 4 Ianelli v. United States, 420 U.S. 770 (1975) . . . . 6 Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477 (1989) . . . . 2 United States v. All Assets of G.P.S. Automotive Corp., No. 94-6115 (2d Cir. Sept. 18, 1995) . . . . 3 United States v. Dixon, 113 S. Ct. 2849 (1993) . . . . 4 United States v. Halper, 490 U.S. 435 (1990) . . . . 3, 4, 7 United States v. Millan, 2 F.3d 17 (2d Cir. 1993), cert. denied, 114 S. Ct. 922 (1994) . . . . 6 United States v, Morgan, 51 F.3d 1105 (2d Cir.), cert. denied, 116 S. Ct. 171 (1995) . . . . 3 United States v. One Assortment of 89 Fire- arms, 465 U.S. 354 (1984) . . . . 2 United States v. $145,139, 18 F.3d 73 (2d Cir.), cert. denied, 115 S. Ct. 72 (1994) . . . . 2, 3 United States v. One Single Family Residence, 13 F.3d 1493 (llth Cir. 1994) . . . . 6 United States v. Woodward, 469 U.S. 105 (1985) . . . . 6 Witte v. United States, 115 S. Ct. 2199 (1995) . . . . 4 (I) ---------------------------------------- Page Break ---------------------------------------- II Constitution and statutes: Page U.S. Const.: Amend. V: Double Jeopardy Clause . . . . 7 Self-Incrimination Clause . . . . 6 Amend. VIII (Excessive Fines Clause) . . . . 2 21 U.S.C. 881(a)(7) . . . . 2 21 U.S.C. 981 . . . . 3 31 U.S.C. 5316 . . . . 3 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1995 No. 95-345 UNITED STATES OF AMERICA, PETITIONER v. GUY JEROME URSERY ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT REPLY BRIEF FOR THE UNITED STATES The Sixth Circuit reversed respondent's con- viction for manufacturing marijuana on the ground that the conviction was a "second punishment that violates the Double Jeopardy Clause." Pet. App. 6a. As we demonstrated in the petition (Pet. 7-14), that conclusion embodies three errors of double jeopardy law, will disrupt the enforcement of the criminal laws in the Sixth Circuit, and will significantly contribute to the widespread confusion that exists in the lower courts concerning the applicability of the Double Jeopardy Clause to civil forfeiture statutes. Respon- dent's brief in opposition does not cast doubt on those propositions or the need for this Court's review. (1) ---------------------------------------- Page Break ---------------------------------------- 2 1. Respondent contends (Br. in Opp. 6-7) that the Sixth Circuit's conclusion that all forfeitures under 21 U.S.C. 881(a)(7) inflict "punishment" for double jeopardy purposes "cannot reasonably be assailed and stall be consistent with stare decisis," in light of Austin v. United States, 113 S. Ct. 2801 (1993). As we have explained (Pet. 8-9), however, Austin involved the Excessive Fines Clause...of the Eighth Amend- ment, not a double jeopardy claim, and the Court expressly recognized that it "ma[de] little practical difference'' in that case, in light of the nature of the Eighth Amendment claim, whether all forfeitures under the statute were considered punitive. 113 S. Ct. at 2812 n.14. In the present context, it does make a difference, and respondent has failed to offer any sound reason why the holding in Austin should be transposed to the double jeopardy context. Indeed, in United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984), this Court unanimously concluded that a similarly worded forfeiture statute served goals "plainly more remedial. than punitive, " id. at 364, and that accord- ingly a forfeiture of goods under it was "not barred by the Double Jeopardy Clause." Id. at 366. Until squarely overruled by this Court, that double jeo- pardy holding controls this case, and the Sixth Cir- cuit was not free to disregard it. See, e.g., Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477,484 (1989). Respondent also contends (Br. in Opp. 6) that the Sixth Circuit's conclusion that forfeitures of drug instrumentalities under Section 881(a)(7) are always punitive for double jeopardy purposes does not conflict with United States v. $145,139, 18 F.3d 73 (2d Cir.), cert. denied, 115 S. Ct. 72 (1994), because $145,139 ---------------------------------------- Page Break ---------------------------------------- 3 involved a forfeiture under a different statute (31 U.S.C. 5316). As the Second Circuit recently observed, however, its general approach to forfeitures of instrumentalities of crime differs from the categorical analysis employed by the Sixth Circuit: [W]e are hesitant to conclude that the Supreme Court meant its decision in Austin, a case ad- dressing the Excessive Fines Clause, to reformu- late the standards [United States v. Halper, 490 U.S. 435 (1990)] had established for the Double Jeopardy Clause. * * Only if we read Austin and [Department of Revenue of Montana v. Kurth Ranch, 114 S. Ct. 1937 (1994),] as making major changes in double jeopardy analysis, sub silentio, would we have to conclude that [a] particularized approach to the question of "punish- ment" * * * has been cast aside. And, in fact, rather than reading Austin or Kurth Ranch in this way, we have continued to follow Halper and to make individualized, case-by-case deter- minations of whether particular civil sanctions constitute "punishment" even after Austin and Kurth Ranch (albeit without discussion of these cases). United States v. All Assets of G.P.S. Automotive Corp., No. 94-6115 (2d Cir. Sept. 18, 1995), slip op. 7490 (involving a forfeiture secured under 21 U.S.C. 981, and citing, inter alia, United States v. Morgan, 51 F.3d 1105 (2d Cir.), cert. denied, 116 S. Ct. 171 (1995), and $145,139, supra). Respondent also contends (Br. in Opp. 3-4) that a detailed examination of the "actual facts of this case" under Halper would establish that the forfeiture to which he stipulated inflicted "punishment" on him. ---------------------------------------- Page Break ---------------------------------------- 4 Respondent asserts (id. at 4) only that he was not "an affluent drug dealer," that he was deprived of his residence, and that the government did not establish that it incurred any expenses in prosecuting him. Under Halper, however, the government is not required to provide an accounting of its costs unless it first appears that "the civil penalty * * * bears no rational relation" to a non-punitive goal. 490 US. at 449. That question is not determined "from the defendant's perspective" since "for [him] even remedial sanctions carry the sting of punishment." Id. at 447 n.7. In any event, the Sixth Circuit did not rule in respondent's favor based on Halper or the peculiar facts of his case, but instead rejected Halper's case-by-case analysis of punishment issues in favor of a categorical approach. It is that conclusion that warrants further review by this Court. 2. Respondent contends that the forfeiture action and the criminal prosecution involved the "same offense" for double jeopardy purposes, because they were "based on the same conduct." Br. in Opp. 7. In United States v. Dixon, 113 S. Ct. 2849 (1993), how- ever, this Court overruled Grady v. Corbin, 495 U.S. 508 (1990), and rejected that case's "same-conduct" test to determine whether two statutory provisions define the "same offense." It is now settled that two offenses are not the "same" when each offense has at least one statutory element not shared by the other, under the longstanding rule of Block burger v. United States, 284 U.S. 299 (1932). See United States v. Dixon, 113 S. Ct. at 2856; see also Witte v. United States, 115 S. Ct. 2199,2204 (1995). As we have demon- strated (Pet. 11-12), the manufacturing and forfeiture "offenses" at issue here cannot be considered the ---------------------------------------- Page Break ---------------------------------------- 5 same under the "statutory elements" test of Block- burger.* Respondent does suggest that the "criminal pun- ishment imposed in this case involved the same statu- tory elements as the particular forfeiture," Br. in Opp. 7. But respondent's claim is based on a compar- ison of what "the government claimed and offered to prove" in each case. Ibid. That interpretation of Blockburger is mistaken. The formulation the Court employed in Blockburger turns on the facts that the statute requires to be proved, not those that become relevant in a given case: two offenses are different if "each provision requires proof of a fact which the other does not." 284 U.S. at 304 (emphasis added); see ___________________(footnotes) * Respondent faults us for pointing out (Pet. 12 n.3) that his criminal conviction for manufacturing marijuana did not in- volve his real property, since the marijuana in question was growing beyond his property line. Br, in Opp. 7-8 n.4. In respondent's view, our reliance on that fact is inconsistent with the "elements" test of Blockburger. Respondent's argument confuses two different aspects of the Blockburger decision. The better-known holding of that case is, of course, that violations of two statutes do not amount to the same offense if each "requires proof of a different element." 284 U.S. at 304. Blockburger also held, however, that repeated violations of the same statute (which obviously would be the same offense under the "elements" test) are still different "offenses" if each result- ed from a fresh "impulse." Id. at 303. Thus, in Blockburger, two separate sales of narcotics were held to be different offenses even though the same statute was violated by each. The Sixth Circuit's decision not only misapplied the "elements" test, but also ignored that second holding of Blockburger. Even if the marijuana and forfeiture "offenses" were the same under the "elements" test, it remains a fact that respondent's criminal conviction for manufacturing marijuana was not based on his growing marijuana on the property that the government sought to forfeit. ---------------------------------------- Page Break ---------------------------------------- 6 also United States v. Woodward, 469 U.S. 105, 108 n.4 (1985) (alternative theory of liability was available under one of the statutes on which the government relied, even if that was not the theory on which the government proceeded in the particular case); Alber- naz v. United States, 450 U.S. 333, 338 (1981) ("As Blockburger and other decisions applying its prin- ciple reveal, . . . the Court's application of the test focuses on the statutory elements of the offense. If each requires proof of a fact that the other does not, the Block burger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes," quoting Ianelli v. United States, 420 U.S. 770,785 n.17 (1975)). 3. The Sixth Circuit's conclusion that the mari- juana-manufacturing and forfeiture "offenses" were not part of the same proceeding for double jeopardy purposes conflicts with the decisions of two -circuits. See United States v. One Single Family Residence, 13 F.3d 1493 (11th Cir. 1994); United States v. Millan, 2 F.3d 17 (2d Cir. 1993), cert. denied, 114 S. Ct. 922 (1994). Respondent does not explain why that conflict does not demonstrate the need for further review in this case. Respondent asserts instead that reversal of the Sixth Circuit's conclusion might lead to abuses by the government. In particular, respondent notes that a person's invocation of his right against compulsory self-incrimination "can be used against him in the civil forfeiture case." Br. in Opp. 10. That possibility, however, results from this Court's decisions in- terpreting the Self-Incrimination Clause of the Fifth Amendment, see, e.g., Baxter v. Palmigiano, 425 U.S. 308 (1976), and would remain even if the government sought a civil forfeiture without ever seeking to ---------------------------------------- Page Break ---------------------------------------- 7 punish the property's owner criminally. It is therefore hard to see how that is the sort of practice against which the Double Jeopardy Clause can reasonably be said to afford protection. More perti- nent in this case is the fact that the government made clear its intent to proceed against respondent and his property before the protections of the Double Jeopar- dy Clause ever attached. This therefore is quite plainly not a ease in which the government "is seek- ing the second punishment because it is dissatisfied with the sanction obtained in the first proceeding." United States v. Halper, 490 U.S. 435,451 n.10 (1989). The Sixth Circuit's contrary conclusion warrants this Court's review. * * * * * For the foregoing reasons and those set forth in the petition, the petition for a writ of certiorari should be granted. Respectfully submitted. DREW S. DAYS, III Solicitor General NOVEMBER 1995 ---------------------------------------- Page Break ---------------------------------------- Page Break No. 95-345 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1995 UNITED STATES OF AMERICA, PETITIONER v. GUY JEROME URSERY PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT DREW S. DAYS, III Solicitor General JO ANN HARRIS Assistant Attorney General MICHAEL R. DREEBEN Deputy Solicitor General MIGUEL A. ESTRADA Assistant to the Solicitor General DANIEL S. GOODMAN Attorney Department of Justice Washington, D.C. 20530 (202) 514-2217 I ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether the Double Jeopardy Clause of the Fifth Amendment prohibits respondent's criminal prosecu- tion for manufacturing marijuana because the gov- ernment obtained a consent judgment in a civil ac- tion that sought the forfeiture of property of re- spondent on the ground that it facilitated illegal drug activities. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinions below . . . .1 Jurisdiction . . . . 1 Constitutional and statutory provisions involved . . . . 2 Statement . . . . 2 Conclusion . . . . 15 Appendix A . . . . 1a Appendix B . . . . 2 8a Reasons for granting the petition . . . . 6 Appendix C . . . . 32a Appendix D . . . . 35a Appendix E . . . . 38a Appendix F . . . . 42a Appendix G . . . . 49a TABLE OF AUTHORITIES Cases: Austin V. United States, 113 S. Ct. 2801 (1993) . . . . 3 , 7, 8, 9,11 (1932) . . . . 4, 6, 10 Blockburger V. United States, 284 U.S. 299 Brown V. Ohio, 432 U.S. 161 (1977) . . . . 11 Department of Revenue of Montana V. Kurth Ranch, 114 S. Ct. 1937 (1994) . . . . 7, 9,14 Grady V. Corbin, 495 U.S. 508 (1990), overruled by United States V. Dixon, 113, S. Ct. 2849 (1993) ___________ 10 Jones V. Thomas, 491 U.S. 376 (1989) . . . . 15 Morris V. Mathews, 475 U.S. 237 (1986) . . . . 5 Origet V. United States, 125 U.S. 240 (1888) . . . . 11 Schmuck v.. United Stales, 489 U.S. 705 (1989) . . . . 11 United States V. Dixon, 113 S. Ct. 2849 (1993) . . . . 10 United States V. $405,089 ..23, 33 F.3d 1210 (1994), amended on denial of reh'g, 56 F.3d 41 (9th Cir. 1995), petition for cert. pending, No, 95- . . . . 4,6 (III) ---------------------------------------- Page Break ---------------------------------------- Iv Cases continued: Page United States V. Halper, 490 U.S. 435 (1989) . ... 3, 7, 8, 9 13,14 United States V. Millan, 2 F.3d 17 (2d Cir. 1993), cert. denied, 114 S. Ct. 922 (1994) . . . . 5 United. States v. Morgan, 51 F.3d 1105 (2d Cir. 1995), petition for cert. pending, No. 95-14 10 United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984) . . . . 7, 9, 12 United States V. $145,139, 18 F.3d 73 (2d Cir.) , cert. denied, 115 S. Ct. 72 (1994) . . . . 10 United States V. One Single Family Residence, 13 F.3d 1493 (11th Cir. 1994) . . . . 4 United States V. Woodward, 469 U.S. 105 (1985 ).. . . 11 Various Items of Personal Property V. United States, 282 U.S. 577 (1931) . . . . 7 Witte V. United States, 115 S. Ct. 2199 (1995) . . . . 10 Constitution and statutes: Us. Const.: Amend. V (Double Jeopardy Clause) . . . . 2, 4, 6, 7, 12, 13 Amend. VIII (Excessive Fines Clause) . . . . 8 21 U.S.C. 841 . . . . 2 21 U.S.C. 841 (a) . . . . 12 21 U.S.C. 841 (a) (1) . . . . 2 21 U.S.C. 881 . . . . 2 21 U.S.C. 881 (a) (7) . . . . 2, 8, 11 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1995 No. UNITED STATES OF AMERICA, PETITIONER v. GUY JEROME URSERY PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT The Solicitor General, on behalf of the United States of America, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Sixth Circuit in this case. OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-27a) is reported at 59 F.3d 568. The order of the district court rejecting respondent's double jeopardy claim (App., infra, 38a-41a) is not reported. JURISDICTION The judgment of the court of appeals was entered on July 13, 1995. The jurisdiction of this Court is invoked under 28 U. S. Cl. 1254(1). (1) ---------------------------------------- Page Break ---------------------------------------- 2 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Double Jeopardy Clause of the Fifth Amend- ment to the Constitution provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb." The provisions of 21 U.S.C. 841 and 881 are reproduced at App., injra, 49a-71a. STATEMENT 1. On July 30, 1992, police officers executing a warrant at respondent's property discovered 142 marijuana plants growing on land just outside the boundaries of the property. Inside respondent's house, the officers discovered marijuana seeds, stems, and stalks, two loaded firearms, and a growlight. App., infra, 2a. On September 30, 1992, the government filed a civil complaint, pursuant to 21 U.S.C. 881 (a.) (7), seeking forfeiture of respondent's residence. App., infra, 2a-3a. The complaint alleged that, "[f]or sev- eral years, the defendant real property was used or intended to be used to facilitate the unlawful pro- cessing and distribution of a controlled substance." Id. at 29a. The court scheduled the trial of that ac- tion for July 1993. Before trial, however, respondent and his wife entered into a settlement under which they agreed to pay the government $13,250 in lieu of the forfeiture. Id. at 32a-34a. A consent judg- ment embodying that agreement was entered on May 24, 1993. Id. at 35a-37a. On February 5, 1993, while the civil action was pending, a federal grand jury returned a criminal indictment charging respondent with one count of manufacturing marijuana, in violation of 21 U.S.C. 841 (a) (1). App., infra, 3a. A jury trial on that ---------------------------------------- Page Break ---------------------------------------- 3 charge commenced on June 30, 1993, and concluded with respondent's conviction on July 2, 1993. Ibid. Following his conviction, respondent, moved to dis- miss the indictment on the ground that his "convic- tion constituted] double jeopardy, as a result of the civil forfeiture proceeding instituted and con- cluded in favor of the government before his convic- tion." Id. at 38a. The district court denied that motion, explaining that the consent judgment in the forfeiture action was not an "adjudication" and that, in any event, the forfeiture and the criminal convic- tion were two components of "a single, coordinated prosecution." Id. at 39a. Respondent was sentenced to 63 months' imprisonment. Id. at 44a. 2. A divided panel of the Sixth Circuit reversed respondent's criminal conviction on the ground that the conviction was "a second punishment that violates the Double Jeopardy Clause." App., infra, 6a. The court first rejected the district court's view that the consent decree in the civil forfeiture proceeding was not an "adjudication " for double jeopardy purposes By analogy to cases in which a criminal defendant pleads guilty pursuant to a plea agreement, the court concluded that jeopardy attached in the forfeiture proceeding when the court accepted the stipulation of forfeiture and entered a judgment of forfeiture against respondent. Id. at 7a. The court next concluded that "any civil forfeiture under [] 21 U.S.C. 21 881(a) (7) constitutes punish- ment for double jeopardy purposes." App., infra, ha. The court believed that under United States v. Halper, 490 U.S. 435 (1989), and Austin v. United States, 113 S. Ct. 2801 (1993), such forfeitures are punitive because they do not "serve solely a remedial purpose." App., infra, 10a. The court also held that ---------------------------------------- Page Break ---------------------------------------- 4 under the `elements'} test of Blockburger v. United States, 284 U.S. 299 (1932), the civil forfeiture and the criminal conviction were "punishment for the same offense because the forfeiture necessarily re- quires proof of the criminal offense," and therefore the criminal offense "is in essence subsumed by the forfeiture statute." App., infra, 12a. Finally, the court rejected the district court's con- clusion that the civil forfeiture and criminal actions were a "single proceeding" for purposes of the Double Jeopardy C1ause. App., infra, 13a-17a, The court recognized that "[t]here is disagreement among the circuits * * * as to when a civil forfeiture action and criminal prosecution can properly be con- sidered components of a single proceeding so that double jeopardy is not triggered." Id. at 14a (citing eases). It also "acknowledged]" but "f[ou]nd it unnecessary to fully adopt" the Ninth Circuit's sug- gestion in United States v. $405,089.23, 33 F.3d 1210, 1216 (1994), amended on denial of reh'g, 56 F.3d 41 (1995), petition for cert. pending, No. 95 , that "parallel civil forfeiture and criminal. proceedings will always violate the Double Jeopardy Clause." App., infra, 15a-16a. In the instant case, the court concluded, there was "no indication that the govern- ment intended to pursue the civil forfeiture action and the criminal prosecution" of respondent "as a coordinated proceeding," Id. at 16a. Judge Milburn dissented. App., infra, 19a-27a. He argued that this case involved "a sufficiently co- ordinated proceeding' to dispel double jeopardy con- cerns. ld. at 20a. Judge Milburn noted that the Eleventh Circuit in United States V. One Single Family Residence, 13 F.3d 1493 (1994), concluded that civil and criminal proceedings were sufficiently coordinated to be the same case for double jeopardy ---------------------------------------- Page Break ---------------------------------------- 5 purposes even though an indictment was returned five months after the civil forfeiture action was in- stituted, and the civil and criminal judgments were entered at different times. App., infra, 21a n.2. The key to that conclusion, Judge Milburn contended, was a recognition that contemporaneous civil and criminal proceedings do not ordinarily raise the spec- ter that the government is seeking to punish the de- fendant a second time simply because it is dissatis- fied with the sanction it obtained at a first trial. Ibid. Following the lead of the Eleventh Circuit, and of the Second Circuit in United States v. Millan, 2 F.3d 17 (1993), cert. denied, 114 S. Ct. 922 (1994), Judge Milburn urged that the potential for government abuse should be the central factor in determining whether contemporaneous civil and criminal actions are a "single proceeding" for double jeopardy pur- poses. He concluded that the civil and criminal ac- tions in this case were indeed a single proceeding, because they "took place in close time proximity to one another," id. at 22a, respondent understood when he settled the forfeiture action "that the government was pursuing its full range of remedies against him," ibid., the government instituted both the civil forfeiture action and the criminal action "before it knew the outcome of either case, " id. at 22a-23a, and the total punishment imposed in the coordinated pro- ceeding did not exceed the punishment authorized by Congress, id. at 25a. Judge Milburn also disagreed with the majority's conclusion that the civil forfeiture and the crime for which respondent was convicted were "the same of- fense." App., infra, 26a-27a. He noted not only the different statutory elements of each "offense," but ---------------------------------------- Page Break ---------------------------------------- 6 also that the forfeiture complaint and the indictment alleged different theories of liability. The indictment charged respondent "with the manufacture of mari- juana only during the year 1992" while the civil for- feiture complaint alleged that respondent's "property was involved in the commission or facilitation of both processing and distribution of a controlled substance over the course of several years." Id. at 26a, 27a. "Under those circumstances," he concluded, "the crim- inal prosecution and the civil forfeiture action would undoubtedly relate to separate offenses under the Double Jeopardy Clause." Id. at 27a. REASONS FOR GRANTING THE PETITION This case presents three related and important issues under the Double Jeopardy Clause. First, the Sixth Circuit erroneously concluded that the civil for- feiture of property used to facilitate criminal activity necessarily constitutes "punishment" under the Dou- ble Jeopardy Clause. - Second, in concluding that the civil forfeiture and criminal conviction inflicted pun- ishment for the "same offense," the Sixth Circuit mis- applied this Court's decision in Blockburger v. United States, 284 U.S. 299 (1932), and its progeny, which hold that two offenses. are not the "same" if each has an element that the other does not have. Third, as Judge Milburn argued in dissent, the Sixth Circuit's conclusion that the civil and criminal actions against respondent and his property must be deemed "sep- arate proceedings" serves no valid interest protected by the Double Jeopardy Clause. As with the Ninth Circuit's ruling in United States v. $405,089.23 (see 33 F.3d 1210 (1994), amended on denial of reh'g, 56 F.3d 41 (1995)), in which we have also filed a ---------------------------------------- Page Break ---------------------------------------- 7 petition for a writ of certiorari, the Sixth Circuit's rulings exacerbate a circuit conflict on the extent to which the government may pursue factually related civil forfeiture and criminal actions. Accordingly, this Court's review is warranted. L Traditionally, the civil forfeiture of property involved in criminal activity and the criminal prose- cution of the property's owner for the same under- lying conduct did not raise issues under the Double Jeopardy Clause. See, e.g., United Slates v. One Assortment of 89 Firearms, 465 U.S. 354, 362-366 (1984); Various Items of Personal Property v. United States, 282 U.S. 577, 581 (1931). As we explain more fully in our petition in United States V. $.405,089.23, however, in which we seek review of the Ninth Circuit's conclusion that the forfeiture of proceeds of narcotics activity always must be deemed "punishment" for double jeopardy purposes, the lower courts are deeply divided on the question whether, or to what extent, this Court's decisions in United States v. Halper, 490 U.S. 435 (1989), Austin v. United States, 113 S. Ct. 2801 (1993), and Depart- ment of Revenue of Montana v. Kurth Ranch, 114 S. Ct. 1937 (1994), have changed that rule. The Sixth Circuit held that the civil forfeiture of property used or intended to be used to facilitate drug trafficking always imposes "punishment" for double jeopardy purposes and that, under Halper, such a forfeiture bars a subsequent criminal punish- ment. The Court in Halper, however, cautioned that it was announcing a rule for "the rare case" in which "a prolific but small-gauge offender [was subjected] to a [civil] sanction overwhelmingly disproportionate to the damages he has caused," so that the sanction ---------------------------------------- Page Break ---------------------------------------- 8 "may not fairly be characterized as remedial, but only as a deterrent or retribution." 490 U.S. at 449. As Halper recognized, the government may exact civil sanctions that achieve "rough remedial justice" with- out raising double jeopardy concerns. Accordingly, under Halper, it is ordinarily necessary to examine the particular civil sanction imposed on a case-by- case basis to determine whether it constitutes "pun- ishment" for double jeopardy purposes. Id. at 446; see also id. at 452-453 (Kennedy, J., concurring). This Court's decision in Austin v. United States, supra, does not require a categorical approach to for- feiture statutes for purposes of double jeopardy anal- ysis. Austin held that the forfeiture provisions of 21 U.S.C, 881 (a) (7) -the same statute at issue. here -impose "punishment" for purposes of the threshold applicability of the Eighth Amendment's Excessive Fines Clause. The Court suggested that the for- feiture provisions involved in that case were suffi- ciently bound up with the culpability of the property's owner as to render those provisions punitive in all applications, 113 S. Ct. 2806-2810, 2812 & n.14, and the Sixth Circuit found that conclusion dispositive of the punishment issue in the double jeopardy context as well. App., infra, 10a-lla. Austin recognized, however, that it "ma [de] little practical difference" in that case whether the Excessive Fines Clause was held to apply to all forfeitures under the statutes at issue in that case, "or only to those that cannot be characterized as purely remedial." 113 S. Ct. at 2812 n.14. That was true because the Eighth Amendment is relevant only when a fine is excessive and "a fine that serve [d] purely remedial purposes [could not] be considered `excessive' in any event.'" Ibid. ---------------------------------------- Page Break ---------------------------------------- 9 In the double jeopardy context, a departure from Halper's case-by-case approach to the issue whether a particular civil sanction inflicts punishment has enormous practical consequences. In that setting, a categorical conclusion that all civil forfeitures under the statute at issue constitute punishment may com- pletely bar a later criminal prosecution of the owner, even if the particular prior civil forfeiture was fairly characterized as substantially remedial. See Austin, 113 S. Ct. at 2805 n.4 (citing 89 Firearms and rec- ognizing that statutory forfeitures may be wholly remedial ). That result would greatly expand Halper's rule for the "rare case," 490 U.S. at 449, and would dramatically alter the common practice of pursuing both forfeiture of offending property as a civil rem- edy and punishment of its owner as a criminal remedy. Neither Halper nor a proper application of double jeopardy principles would support such a rule. The punishment issue raised by this case differs to some extent from the analogous question presented by our petition in $.405,089 ..23. Here, the complaint sought forfeiture of respondent's property on the theory that the property was used or intended to be used to facilitate the commission of a criminal offense. In $40.5,089.23', forfeiture was sought on the theory that the property represented the ill-gotten gains 1 This Court's double jeopardy decision in Department of Revenue of Montana v. Kurth Ranch, 114 S. Ct. 1937 (1994), that a particular state tax on the possession of dangerous drugs constituted punishment in all of its applications does not suggest otherwise. The analysis in that case was tailored "to the specific nature and purposes of a tax statute, see id. at 1946, 1948, not to civil forfeitures or to other civil sanc- tions that may serve remedial aims, see 89 Firearms, supra. ---------------------------------------- Page Break ---------------------------------------- 10 from criminal activity. The Court's resolution of the punishment issue in $405,089.23 therefore will not necessarily resolve the analogous question in cases like this one. At the same time, the extent to which this Court's decisions since Halper changed the dou- ble jeopardy principles that have long applied to civil forfeitures of property used to commit criminal of- fenses has divided the lower courts, compare App., infra, ha, with United States v. Morgan, 51 F.3d 1105, 1113 (2d Cir. 1995) ("we have held that Halper does not apply to forfeiture claims") (citing United States v. $145,139, 18 F.3d 73, cert. denied, 115 S. Ct. 72 (1994)), petition for cert.. pending, No. 95-14 (July 3, 1995), and has generated considerable liti- gation throughout the country. For that reason, this case merits this Court's plenary consideration. 2. Even if the Sixth Circuit were correct in con- cluding that a civil forfeiture of property used or intended to be used to facilitate a narcotics offense must always be considered "punishment" for an "offense" for double jeopardy purposes, the court was wrong to treat the forfeiture "offense" as the "same offense" as the narcotics crime for which respondent was punished. Under Blockburger v. United Slates, 284 U.S. 299 (1932), whether two offenses are the "same" for double jeopardy purposes does not turn on whether the same illegal conduct was involved in both, but on a comparison. of the elements that the government must prove to prevail under each. See Witte v. United States, 115 S. Ct. 2199, 2204 (1995); United States v. Dixon, 113 S. Ct. 2849, 2856 (1993)? 2 In Dixon, 113 S. Ct. at 2860, the Court overruled the "same-conduct" rule of Grady V. Corbin, 495 U.S. 508 (1990), ---------------------------------------- Page Break ---------------------------------------- 11 The Sixth Circuit concluded that the forfeiture and criminal "offenses" were the "same" in this case on the theory that the narcotics crime is a lesser-included offense of the forfeiture-" [t] he criminal offense is in essence subsumed by the forfeiture statute." App., infra, 12a. That reasoning disregards the controlling decisions of this Court, which make clear that one "offense" is included within another only if every conceivable application of the "greater" offense nec- essarily establishes the existence of the "included" offense. See United States v. Woodward, 469 U.S. 105, 108 & n.4 (1985) (per curiam ) ; Brown v. Ohio, 432 U.S. 161, 168 (1977) (offense is lesser-included under Blockburger if it is "invariably true" that the lesser offense "requires no proof beyond that which is required for conviction of the greater") ; accord Schmuck v. United States, 489 U.S. 705, 716 (1989). The statute that authorizes forfeiture does not "necessarily" require proof that the property's owner engaged in marijuana manufacturing; forfeiture may be appropriate if the property in question facilitated any narcotics violation committed by anyone, even if that person is not the owner. See Origet v. United States, 125 U.S. 240, 246 (1888 ) ("The person pun- ished for the [criminal] offense may be an entirely different person from the owner of the merchandise, or any person interested in it") ; see also Austin, 113 S. Ct. at 2810 n.11. Indeed, forfeiture is authorized by 21 U.S.C. 881 (a) (7) even if the property was under which a subsequent prosecution was generally pro- hibited if the government, to establish an essential element of that prosecution, would have to prove conduct that con- stituted an offense for which the defendant had already been prosecuted. ---------------------------------------- Page Break ---------------------------------------- 12 merely "intended" for use in a narcotics offense. Con- versely, "the substantive criminal provision under which [respondent ] was prosecuted [ ] does not render unlawful an intention to [manufacture marijuana] ; only the completed act of [manufacturing marijuana] is made a crime" by 21 U.S.C. 841(a), 89 Fire- arms, 465 U.S. at 363-364, and then only if com- mitted with criminal intent.3 In those circumstances, the Sixth Circuit erred in concluding that the nar- cotics crime was necessarily included within the for- feiture "offense." 3. Finally, the Sixth Circuit was also wrong to conclude that the parallel civil and criminal actions in this case did not constitute a "single proceeding" for double jeopardy purposes. While recognizing a split in the circuits on whether parallel civil and criminal actions may be deemed a "single proceeding," App., infra, 14a, the Sixth Circuit exacerbated that divi- sion of authority. The Sixth Circuit declined to adopt the Ninth Circuit's conclusion that parallel actions may never be considered a single proceeding. It also rejected the Second and Eleventh Circuit's view that such parallel actions generally do not present the potential for abuse that the Double Jeopardy Clause is designed to prevent-i.e., that the government "is 3 Nor does the crime of manufacturing marijuana require proof that any property was used, or intended for use, to facilitate the production of the contraband. See 21 U.S.C 841 (a) (1). Indeed, the marijuana plants that formed the basis for respondent's conviction were growing beyond re- spondent's property line (App., infra, 2a), and it was the additional discovery of items such as marijuana seeds, a growlight, and firearms on the property that supported the forfeiture action. ---------------------------------------- Page Break ---------------------------------------- 13 seeking the second punishment because it is fied with the sanction obtained in the first proceed- ing." Halper, 490 U.S. at 451 n.10. Instead, as Judge Milburn noted in dissent, App. infra, 22a, the Sixth Circuit adopted "a case-by-case comparison of the level of coordination" that is unrelated to the pur- poses of the Double Jeopardy Clause. Nothing suggests that the government commenced the criminal prosecution against respondent out of dissatisfaction with the result obtained in the civil proceeding. Respondent was indicted in February 1993, long before the outcome of the forfeiture pro- ceeding was known. Indeed, the forfeiture action was scheduled for trial in June 1993. The government's simultaneous pursuit of these cumulatively available remedies does not suggest any intent to obtain double punishment in sequential proceedings. Rather, it re- flects the fact that civil and criminal actions cannot be formally joined in our system of procedure. And, although respondent elected to resolve the civil part of the case by settlement, he "knew at the time of the settlement in the civil forfeiture action that a crim- inal action was pending." App., infra, 23a ( Milburn, J., dissenting). He was therefore aware "that the government was pursuing its full range of remedies against him." Id. at 22a. Those circumstances do not bespeak the type of government overreaching that calls into action the doctrine against multiple punish- ments in successive proceedings. See Halper, 490 U.S. at 451 n.10. 4. The decision in this case will have a substantial and adverse impact on the administration of justice in the Sixth Circuit. The United States will justifi- ably be reluctant to commence, prosecute, or settle ---------------------------------------- Page Break ---------------------------------------- 14 civil forfeiture actions expeditiously if by so doing it necessarily precludes the prosecution of serious crim- inal offenses. Moreover, as the experience of the Ninth Circuit demonstrates, the decision below is likely to engender literally hundreds of motions to dismiss indictments, post-trial motions for relief, and collateral attacks on existing judgments. That conse- quence will add substantial delay to the adjudication of defendants' guilt and require burdensome post- trial litigation over settled criminal convictions. Both the Sixth Circuit's decision and the Ninth Circuit's decision in $405,089.23, in which we have also filed a petition for a writ of certiorari, are be- fore the Court at the same time. As we explain in our petition in $405,089.23, we believe that the Court should grant certiorari and give plenary considera- ion to both cases. While the two cases present simi- lar double jeopardy issues, those issues arise in somewhat different factual and legal contexts that may illuminate the Court's consideration of the prob- lem. In particular, as we have noted, $405,089.23 involves property alleged to be the "proceeds" of criminal activity, not property alleged to have been used or intended for use to facilitate the commission of a narcotics offense.' In order to ensure that this 4 Because this case involves a civil proceeding that the Sixth Circuit believed was followed by a constitutionally separate criminal prosecution, consideration of this case together with $405,089.23 may also allow the Court to settle a question that was expressly left undecided in Kurth Ranch, i.e., what signifi- cance the order of the proceedings has in the double jeopardy analysis, see 114 S. Ct.. at 1947 n.21, including questions as to the appropriate remedy. In this connection, we note that in remanding for further proceedings, Halper itself suggested that a second sanction would be barred only to the extent that it was punitive, 490 U.S. at 449-450, 452, and that this Court's ---------------------------------------- Page Break ---------------------------------------- 15 Court has a full opportunity to explore the double jeopardy issues that continue to divide the lower courts, we respectfully suggest that the Court grant certiorari in both cases and consolidate them for argument. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. DREW S. DAYS, III Solicitor General Jo ANN HARRIS Assistant Attorney General MICHAEL R. DREEBEN Deputy Solicitor General MIGUEL A. ESTRADA Assistant to the Solicitor General DANIEL S. GOODMAN Attorney AUGUST 1995 ___________________(footnotes) cases support the proposition that double jeopardy violations, like other constitutional violations, must be remedied only to the extent of the injury suffered. See, e.g., Jones V. Thomas, 491 U.S. 376, 380-387 (1989); Morris V. Mathews, 475 U.S. 237, 244-247 (1986) . ---------------------------------------- Page Break ---------------------------------------- APPENDIX A UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 94-1127 UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE v. GUY JEROME URSERY, DEFENDANT-APPELLANT On Appeal from the United States District Court for the Eastern District of Michigan Decided and Filed July 13, 1995 Before: JONES, CONTIE, and MILBURN, Cir- cuit Judges. JONES, J., delivered the opinion of the court, in which CONTIE, J., joined. MILBURN, J. (pp. 17- 24), delivered a separate dissenting opinion. NATHANIEL R. JONES, Circuit Judge. Defend- ant Guy Jerome Ursery is appealing his conviction and sentence for manufacture of marijuana on sev- eral grounds. Because we find that the civil for- feiture judgment followed by a criminal conviction in this case constitute double jeopardy, we reverse the decision of the district court. Because we find this issue to be dispositive, we decline to reach the other issues raised by Ursery in this appeal. (la) ---------------------------------------- Page Break ---------------------------------------- 2a I. Background In May 1992, the ex-fiancee of Defendant Ursery's son, Heather McPherson,' informed the Michigan State Police that Ursery grew marijuana on his property. Based on this information and further in- vestigation by the police, the police obtained a war- rant to search the Ursery home. On July 30, 1992, offiers executed the warrant and seized 142 mari- juana plant-s growing in six plots from a field to the west of the rural home. While the police in- itially believed that the field was part of Ursery's property, it was later determined that three of the plots were 25 feet from Ursery's property line and the other three plots were about 150 feet away from the property line. The plants ranged in height from about six inches to two feet. From the Ursery resi- dence, the police obtained an ammunition case with two plastic bags filled with marijuana seeds, two loaded firearms, a box with ten plastic bags con- taining marijuana seeds, marijuana stems and stalks, and a growlight. On September 30, 1992, the United States Attor- ney's office in Detroit instituted a civil forfeiture action against Ursery and his wife. The government brought the action pursuant to 21 U.S.C. 881(a) (7)2 and sought forfeiture of the Ursery residence. ___________________(footnotes) 1 McPherson was Brian Ursery's girlfriend and later fiancee from September 1989 to February 1992. 2 This section provides the following: Ail real property, including any right, title, and inter- est (including any leasehold interest ) in the whole of any lot or tract of land and any appurtenances or im- provements, which is used, or intended to be used, in any manner or part, to commit, or to facilitate the com- ---------------------------------------- Page Break ---------------------------------------- 3a The action was brought before Judge Lawrence of the United States District Court for the Eastern District of Michigan and was placed on the court's civil docket. The government served a seizure warrant for the Ursery residence on Ursery at his residence on October 2, 1992. Judge Zatkoff con- ducted a scheduling conference on November 9, 1992, and scheduled trial for July 1993. The Urserys and the government entered into a settlement in which the Urserys agreed to pay the government $13,250.00. A consent judgment was entered on May 24, 1993. The Urserys paid the judgment on June 17, 1993. During this time, on February 5, 1993, a federal grand jury in the Eastern District of Michigan re- turned a criminal indictment which charged Ursery with one-count of manufacture of marijuana in vio- lation of 21 U.S.C. 841 (a) (1). Ursery's pretrial motions for an evidentiary hearing and to suppress evidence, for disclosure of informant, and to strike the mandatory minimum sentence provision were de- nied following argument on June 16, 1993. The case was originally assigned to Judge Stewart A. New- blatt, but was reassigned to Judge Avery Cohn for trial. Jury trial commenced on June 30, 1993 and the jury returned a guilty verdict on July 2, 1993. Ursery's post-trial motions for a new trial and for dismissal on double jeopardy grounds were denied ___________________(footnotes) mission of, a violation of this subchapter punishable by more than one year's imprisonment, except that no prop- erty shall be forfeited under this paragraph, to the extent. of an interest of an owner, by reason of any act or omission established by that owner to have been commit- ted or omitted without the knowledge or consent of that owner. 21 U.S.C. 881 (a) (7) (1988). ---------------------------------------- Page Break ---------------------------------------- 4a on September 13, 1993. On January 19, 1994, Judge Cohn sentenced Ursery to 63 months imprisonment and four years of supervised release. On March 21, 1994, Judge Cohn granted Ursery's request for bond pending appeal. II. Discussion Ursery argues that his criminal prosecution and punishment after settlement of a civil forfeiture pro- ceeding based on the same conduct violated the Double Jeopardy Clause of the Fifth Amendment. This court reviews de novo the constitutional issue of double jeopardy. Costo v. United States, 904 F.2d 344, 346 (6th Cir. 1990). A. No Waiver We address first, however, the government's argu- ment that Ursery has waived his claim of double jeopardy. Ursery first raised his claim of double jeopardy in a post-trial Motion for Dismissal The government argues that Federal Rule of Criminal Procedure 12 requires that motions which object to the institution of the proceedings must be raised prior to trial or they are waived. See Fed. R. Crim. P. 12 also explicitly states that "the court for cause . shown may grant relief from. the waiver." See Fed. R. Crim. P. 12 (f ) . Our response to the government's argument is two- fold. First, we note that although the government raised this issue of waiver below, the district court did not deem Ursery's double jeopardy argument waived, but addressed the merits of the issue. As such, we are entitled to review this as an issue that ---------------------------------------- Page Break ---------------------------------------- 5a was passed upon below.3 Second, we find that Ursery has shown cause for not raising the Double Jeopardy issue prior to trial in indicating that the Supreme Court's decision in Austin v. United States, 113 S. Ct. 2801 (1993), which clarified its position that any civil forfeiture under 21 U.S.C. 881(a) (7) con- stitutes punishment, was decided on June 28, 1993, a mere two days before Ursery's criminal trial com- menced. Thus, we find that Ursery did not waive his double jeopardy claim, and we turn to the merits of his claim. B. Protection of the Double Jeopardy Clause " [T]he Double Jeopardy Clause protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple pun- ishments for the same offense." United States v. Halper, 490 U.S. 435, 440 (1989). As the Ninth Circuit has recently noted, "at its most fundamental level [the Double Jeopardy Clause] protects an ac- cused against being forced to defend himself against repeated attempts to exact one or more punishments for the same offense." United States v. $405,089.23 U.S. Currency, 33 F.3d 1210, 1215 (9th Cir. 1994). To decide whether the government has violated Ur- sery's constitutional right this court must make three key determinations: (1) whether the civil forfeiture in the instant case constitutes "punishment" for ___________________(footnotes) 3 Even if the district court had not addressed the merits of this issue, we still would be entitled to reach this issue where we find that " `injustice might otherwise result.' " See Singleton v. Wulff, 428 U.S. 106, 121 (1976) (quoting Hormel v. Helvering, 312 U.S. 552, 557 (1941)). ---------------------------------------- Page Break ---------------------------------------- 6a double jeopardy purposes; (2) whether the civil for- feiture and criminal conviction are punishment for the same offense; and (3) whether the civil forfeit- ure and criminal prosecution are separate proceed- ings. Because we find the answer to each of these questions to be in the affirmative, we hold that Ur- sery's criminal conviction is a second punishment that violates the Double Jeopardy Clause. The district court denied Ursely's motion for dis- missal on double jeopardy grounds stating the fol- lowing : The forfeiture proceeding was settled by a con- sent judgment. That is not an adjudication. Furthermore, the forfeiture proceeding and criminal conviction were "part of a single, co- ordinated prosecution of [a] person [ ] involved in alleged criminal activity." United States v. Mil- lan, [2 F.3d 17, 20] (2d Cir. 1993). J.A. at 29-30. For the reasons that follow, we re- verse this holding of the district court. C. Jeopardy Attached Before addressing the three key questions of the double jeopardy analysis outlined above, we note our first disagreement with the district court: the fact that the civil forfeiture proceeding was settled by a consent judgment does not preclude a double jeopardy analysis here. The consent judgment in the forfeiture proceeding was an adjudication for double jeopardy purposes because jeopardy attached when the judg- ment of forfeiture was entered against Ursery. Ursery's consent judgment in his civil forfeiture action is analogous to a guilty plea entered pursuant to a plea agreement in a criminal case. Although in jury trials, jeopardy attaches when the jury is sworn, ---------------------------------------- Page Break ---------------------------------------- 7a Crist v. Bretz, 437 U.S. 28, 38 (1978), and in non- jury trials jeopardy attaches "when the court begins to hear evidence," Serfass v. United States, 420 U.S. 377, 388 (1975), jeopardy attaches to a guilty plea pursuant to a plea agreement upon the court's ac- ceptance of the plea agreement. United States v. Smith, 912 F.2d 322, 324 (9th Cir. 1990); United States v. Kim, 884 F.2d 189, 191 (5th Cir. 1989); Fransaw v. Lynaugh, 810 F.2d 518, 523 & n.9 (5th Cir.) (collecting cases), cert. denied, 483 U.S. 1008 (1987); United States v. Vaughan, 715 F.2d 1373, 1378 n.2 (9th Cir. 1983). The fact that there has been no trial in which a jury is sworn or the court hears evidence does not preclude jeopardy from at taching to a plea entered pursuant to a plea agree- ment. Similarly, the fact that there has been no trial in a civil forfeiture proceeding does not preclude the attachment of jeopardy to a forfeiture judgment. Jeopardy attaches in a nontrial forfeiture proceeding when the court accepts the stipulation of forfeiture and enters the judgment of forfeiture. See United States v. Tamez, - F. Supp. - 1995 WL 139362, at 8 (E.D. Wash. March 13, l995) (hold- ing that jeopardy attached to stipulated civil for- feiture when court entered the decree of forfeiture). Nor does the Seventh Circuit's holding in United States v. Torres, 28 F.3d 1463, 1465 (7th Cir.), cert. denied, 115 S. Ct. 669 (1994), support the argu- ment that jeopardy did not attach to the judgment of forfeiture in the instant case. In Torras the Sev- enth Circuit held the following: Tomes 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 ---------------------------------------- Page Break ---------------------------------------- 8a 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 guilty, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeop- ardy." Id. at 391-92, 95 S. Ct. at 1064. 28 F.3d at 1465. Torres does not stand for the proposition that jeopardy does not attach to a civil forfeiture when there is no trial; it stands for the proposition that jeopardy does not attach to a civil forfeiture when the party claiming double jeopardy was not a party to the forfeiture proceeding, and thus was never at risk of having a forfeiture judg- ment entered against him. See United States v. Shorb, 876 F. Supp. 1183, 1187 n.4 (D. Or. 1995) ("As the law now stands, a criminal defendant who asserts a property claim in a forfeiture proceeding plainly does so under a threat of jeopardy."). See also United States v. Walsh, 873 F. Supp. 334, 336-7 (D. Ariz. 1994) (citing Torres for proposition that jeopardy did not attach to forfeiture proceeding where defendant did not make any claim in civil for- feiture proceeding); United States v. Branun, 872 F. Supp. 801, 803 (D. Or. 1994) (same) ; United States v. Kemmish, 869 F. Supp. 803, 805-06 (S.D. Cal. 1994) (same). In the instant case, Ursery, unlike Torres, Walsh, Branum, or Kemmish, did make a claim in the for- feiture proceeding, and actively pursued that claim. ---------------------------------------- Page Break ---------------------------------------- 9a Not only was Ursery at risk of a forfeiture judgment, he actually suffered forfeiture. Consequently, jeop- ardy attached when the forfeiture judgment was en- tered against Ursery. D. Double Jeopardy Analysis 1. Punishment In Halper, the Supreme Court considered whether and under what circumstances a civil penalty may constitute "punishment" for the purposes of double jeopardy analysis. 490 U.S. at 436. In Halper, the defendant was first criminally prosecuted for 65 counts of making false medical reimbursement claims totalling approximately $585. He was convicted and sentenced to two years imprisonment and fined $5,000. Subsequently, the government brought a civil action which potentially subjected Halper to a civil penalty of $130,000 for the false claims. The Su- preme Court determined that a particular civil pen- alty could be "so extreme and so divorced from the Government's damages and expenses as to constitute punishment" in spite of its civil label. 490 U.S. at 442. The Court stated the following: The notion of punishment, as we commonly un- derstand it, cuts across the division between the civil and the criminal law, and for the purposes of assessing whether a given sanction constitutes multiple punishment barred by the Double Jeop- ardy Clause, we must follow the notion where it leads. To that end, the determination whether a given civil sanction constitutes punishment in the relevant sense requires a particularized as- sessment of the penalty imposed and the pur- poses that the penalty may fairly be said to ---------------------------------------- Page Break ---------------------------------------- 10a serve. Simply put, a civil as well as a criminal sanction constitutes punishment when the sanc- tion as applied in the individual case serves the goals of punishment. These goals are familiar. We have recognized in other contexts that punishment serves the twin aims of retribution and deterrence. . . From these premises, it follows that a civil sanc- tion that cannot fairly be said solely to serve a remedial purpose, but rather can only be ex- plained as also serving either rebutive or deter- rent purposes, is punishment, as we have come to understand the term. We therefore hold that under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanc- tion may not fairly be characterized as remedial, but only as a deterrent or retribution. 490 U.S. at 447-49 (citations omitted) (emphasis added). This case provides the foundation for the instant determination. In 1993 the Supreme Court decided Austin v. United States, 113 S. Ct. 2801, in which it held that the Excessive Fines Clause of the Eighth Amendment applies to civil forfeitures of property under 21 U.S.C. 881(a) (4) and (a) (7). The Court found that civil forfeitures under 881 (a) (4) and (a) (7) were punishment because, under the rationale in Halper, these penalties did not serve solely a remedial purpose. 113 S. Ct. at 2812. Specifically, after care- ful review, the Court made the following declaration: In light of the historical understanding of for- feiture as punishment, the clear focus of 881 ---------------------------------------- Page Break ---------------------------------------- lla (a) (4) and (a) (7) on the culpability of the owner, and the evidence that Congress under- stood those provisions as serving to deter and to punish, we cannot conclude that, forfeiture under 881(a) (4) and (a) (7) serves solely a reme- dial purpose. We therefore conclude that for- feiture under these provisions constitutes "pay- ment to a sovereign as punishment for some of- fense," Browning-Ferris [Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257] 265 [(1989)], 109 S. Ct. at 2915 . . . . Id. (footnote omitted). Thus, under Halper and Austin, any civil forfeiture under 21 U.S.C. 881 (a) (7) constitutes punishment for double jeopardy purposes. Cf. United States v. $.405,089.23 U.S. Cur- rency, 33 F.3d at 1219-22 (holding that civil for- feiture under 881 (a) (6) constitutes punishment for double jeopardy purposes because Austin "re- solves the `punishment' issue with respect to for- feiture cases for purposes of the Double Jeopardy Clause as well as the Excessive Fines Clause"). 2. Same Offense The Double Jeopardy Clause protects the accused from multiple punishments in multiple proceedings for the same offense. Under United States v. Dixon, 113 S. Ct. 2849 (1993) and Blockburger v. United States, 284 U.S. 299 (1932 ), the test for whether two offenses constitute the "same offense" is whether "each offense contains an element not contained in the other." Dixon, 113 S. Ct. at 2856. The government argues that the civil forfeiture and criminal conviction here do not constitute punish- ment for the same offense because the criminal prose- ---------------------------------------- Page Break ---------------------------------------- 12a cution requires proof that a person, the defendant, committed the crime, while the forfeiture requires proof that the property subject to forfeiture has been involved in the commission of a criminal violation. Thus each offense requires an element, that the other does not. We disagree with this analysis. We find that the forfeiture and conviction are punishment for the same offense because the for- feiture necessarily requires proof of the criminal of- fense. The forfeiture applies to "[a]ll real property . . . which is used . . . to commit or to facilitate . . . . a violation of this subchapter." 21 U.S.C. 881(a) (7). Even though the standard of proof is more easily met in the civil action, the fact remains that the government cannot confiscate Ursery's residence without a showing that he was manufacturing mari- juana. The criminal offense is in essence subsumed by the forfeiture statute and thus does not require an element of proof that is not required by the forfeiture action. See Oakes u. United States, 872 F. Supp. 817, 824 (E.D. Wash. 1994) (reaching this very conclusion) 4; see also United States v. Tilley 18 F.3d 295, 297-98 (5th Cir. ) ("[I]f the prior civil forfeiture proceeding, which was predicated on the ___________________(footnotes) 4 The court declared the following: any forfeiture under section 881(a) (7), therefore re- quires a preceding violation of the controlled substance statutes. Thus, the Government could not have attempted to take Mr. Oakes's home had Mr. Oakes not manufac- tured marijuana on the premises. To accept the Govern- ment's argument that the sections involve different ele- ments simply because one section of the statute deals with property and the other people, would be to adopt a cir- cular and illusory theory. 872 F. Supp. at 824. ---------------------------------------- Page Break ---------------------------------------- 13a same drug trafficking offenses as charged in the in- dictment, constituted a `punishment.,' the Double Jeopardy Clause will bar the pending criminal trial."), cert. denied, 115 S. Ct. 574 (1994) ; United States v. One 1978 Piper Cherokee Aircraft, 37 F.3d 489, 495 (9th Cir. 1994) (" [U]nless the civil for- feiture under 881(a) (4) can be predicated upon some offense other than those for which McCullogh has already been tried, the civil forfeiture is barred by the Double Jeopardy Clause.").' 3. Separate Proceedings The Supreme Court has made clear that the govern- ment may "seek [] and obtain [] both the full civil ___________________(footnotes) 5 The fact that the government did not have to prove that Ursery manufactured marijuana to obtain the consent judg- ment in the instant case does not alter the nature of the same offense test. As with a plea of nolo contendere, the double jeopardy bar is triggered not by the evidence proved, but by the elements charged. Cf. Brown v. Foltz, 583 F. Supp. 1063, 1069 (E.D. Mich.) (holding that plaintiff was placed in double jeopardy when he pled nolo contendere to simple larceny and was subsequently convicted of armed robbery since under Michigan law larceny was a lesser-included offense of armed robbery and the convictions arose out of same transaction), aff'd, 754 F.2d 372 (6th Cir. 1984); United States v. Marcus Schloss & Co., 724 F. Supp. 1123, 1126 (S.D.N.Y. 1989) (stat- ing that nolo contendere plea furnishes sufficient basis for double jeopardy claim); Chikitus v. Shands, 373 So.2d 904, 905 (Fla. 1979) (holding that plaintiff's double jeopardy claim based on his prior nolo contendere plea was not barred because relevant consideration is not nature of evidence" ad- duced at prior trial, but elements of previous crime charged); State v. Gobern, 423 A.2d 1177, 1179 (R.I. 1981) (holding that once nolo contendere plea is accepted by court, jeopardy attaches). ---------------------------------------- Page Break ---------------------------------------- 14a penalty and the full range of statutorily authorized criminal penalties in the same proceeding." Halper, 490 U.S. at 450 (emphasis added). There is dis- agreement among the circuits, however, as to when a civil forfeiture action and criminal prosecution can properly be considered components of a single pro- ceeding so that double jeopardy is not triggered. We find that, the facts in this case simply do not support a determination that the civil forfeiture and criminal prosecution constituted such a single proceeding. In United States v. Millan, 2 F.3d 17, 20 (2d Cir. 1993), cert. denied, 114 S. Ct. 922 (1994), the Sec- ond Circuit concluded that a civil forfeiture suit and criminal prosecution constituted, a single proceeding that did not implicate double jeopardy concerns. In reaching this conclusion the court stated the follow- ing: In the instant case warrants for the civil sei- zures and criminal arrests were issued on the same clay, by the same judge, based on the same affidavit by the DEA agent. In addition, the Stipulation agreed to by the parties involved not only the seized properties. of the civil suit, but also properties named in the criminal indictment that were under restraining order. Furthermore, the civil complaint incorporated the criminal in- dictment. Finally, the [Defendants] were aware of the criminal charges against them when they entered into the Stipulation. Given these cir- cumstances, we reach the conclusion that the civil and criminal actions were but different prongs of a single prosecution of the [Defendants] by the government. 2 F.3d at 20. Comparing this statement to the facts of the instant case, the only similarity is that Usery ---------------------------------------- Page Break ---------------------------------------- 15a was aware of the criminal charges against him at the time he settled the civil forfeiture suit. This simi- larity is insufficient to warrant application of Mil- lan'S holding to the instant ease. In contrast, the Ninth Circuit has rejected the Millan view: We fail to see how two separate actions, one civil and one criminal, instituted at different times, tried at different times before different fact finders, presided over by different district judges, and resolved by separate judgments, con- stitute the same "proceeding." $405,089.23 U.S. Currency, 33 F.3d at 1216. The court found that the parallel proceedings in that case were separate proceedings for double jeopardy pur- poses. Id. at 1218. The government argues that the fact that the civil forfeiture action and criminal action were commenced roughly four months apart should not deter applica- tion of Millan, and points to the Eleventh Circuit's recent. decision, United States v. One Single Family Residence, 13 F.3d 1493, 1499 (11th Cir. 1994), in which the court found a single proceeding even though the civil forfeiture action and criminal action began and ended on different dates. The government points to the Eleventh Circuit's explanation that, " [a]s in Millan, there is no problem here that the government acted abusively by seeking a second pun- ishment because of dissatisfaction with the punish- ment levied in the first action." 13 F.3d at 1499. We do not find this rationale to be dispositive of the issue. The Ninth Circuit's rationale in $405,089.23 U.S. Currency suggests that parallel civil forfeiture and ---------------------------------------- Page Break ---------------------------------------- 16a criminal proceedings will always violate the Double Jeopardy Clause. See 33 F.3d at 1216 ("A forfeiture case and a criminal prosecution would constitute the same proceeding only if they were brought in the same indictment and tried at the same time.") (em- phasis in original). The Ninth Circuit completely rejects the Second and Eleventh Circuit's efforts to consider the parallel proceedings as one prosecution. See id. at 1217 ("We are not willing to whitewash the double jeopardy violation in this case by affording constitutional significance to the label of `single, co- ordinated prosecution.' "). While we acknowledge the Ninth Circuit's approach, we also find it unneces- sary to fully adopt the Ninth Circuit's view in this case. It is merely our view that in so far as the existence of a "single, coordinated proceeding" could arguably satisfy the requirements of the Double Jeop- ardy Clause, as suggested by the Second and Eleventh Circuits, the facts in this case fail to reveal such a single, coordinated proceeding. In the instant case, the record reveals no indication that the government intended to pursue the civil forfeiture action and the criminal prosecution as a coordinated proceeding. Moreover, as government counsel made clear at oral argument, there has been no communication between the government attorneys who handled Ursery's crim- inal prosecution and those who handled the civil for- feiture action. The civil forfeiture proceeding and the criminal proceeding were instituted four months apart, presided over by different district judges, and resolved by separate judgments. The district court found these two proceedings to be part of a "single, coordinated proceeding" without providing any fac- tual support for this determination. As a matter of principle, applying a label to something does not ---------------------------------------- Page Break ---------------------------------------- 17a make it so. Without a reasonable analysis of the in- dicia of coordination, we do not believe these two proceedings logically become part of a single, coor- dinated procedure merely by labeling them as such. Similar to the Ninth Circuit, we find that applying the label of "single, coordinated prosecution" to the facts of this case simply goes too far. The civil for- feiture proceeding and the criminal prosecution were two separate proceedings for purposes of double jeop- ardy analysis. 6 ___________________(footnotes) 6 Nor does the Supreme Court's recent holding in Depart- ment of Revenue v. Kurth Ranch, 114 S. Ct. 1937 (1994) alter this conclusion. In Kurth Ranch, the Court examined "whether a tax on the possession of illegal drugs assessed after the State has imposed a criminal penalty for the same conduct may violate the constitutional prohibition against successive punishments for the same offense." 114 S. Ct. at 1941. In beginning its analysis, the Court explained that "[the State] no doubt could collect its tax on the posses. sion of marijuana, for example, if it had not previously punished the taxpayer for the same offense, or indeed, if it had assessed the tax in the same proceeding that had resulted in his conviction. Here, we ask only whether the tax had punitive characteristics that subject it to the constraints of the Double Jeopardy Clause." Id. at 1945 (citations omitted) (emphasis added). In Kurth Ranch, the Court found that the tax proceeding, initiated after the taxpayer's arrest for conduct giving rise to the tax obligation, constituted a successive proceeding to the tax- payer's criminal proceeding. Id. at 1947 n.21. The Court did not consider whether the contemporaneous criminal prose- cution and tax proceeding could be viewed as a "single, coordinated proceeding" for purposes of double jeopardy analysis. See Torres, 28 F.3d at 1465 (noting the same in dicta). Instead, the Court found that the State's assessment of the tax in a proceeding separate from the taxpayer's crimi- nal prosecution necessarily constituted separate proceedings ---------------------------------------- Page Break ---------------------------------------- 18a III. Conclusion For the reasons stated above, we find that the civil forfeiture judgment against Ursery followed by his criminal conviction constituted double jeopardy. Con- sequently, we reverse the judgment of the district corn-t, and we remand the case to that court with instructions to reverse Ursery's conviction and vacate his sentence. ___________________(footnotes) for the purpose of double jeopardy analysis. This holding, to the extent that it is applicable to the instant case, is in accord with our view that the civil forfeiture proceeding and the criminal prosecution in the instant case were two separate proceedings for purposes of double jeopardy analysis. Finally, we note that, contrary to the dissent's suggestion, the fact that the Court did not address the civil forfeiture proceeding which also existed in Kurth Ranch simply has no precedential value in this case. ---------------------------------------- Page Break ---------------------------------------- 19a MILBURN, Circuit, Judge, dissenting. The major- ity holds that the civil forfeiture judgment followed by a criminal prosecution in this case violates the Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States. I respectfully dissent. Defendant argues that the imposition of criminal punishment against him, iii addition to the civil for- feiture proceedings instituted against his home, is prohibited by the Double Jeopardy Clause. However, in its memorandum and order issued on September 14, 1993, the district court denied defendant's motion to dismiss on double jeopardy grounds, finding that the civil forfeiture proceeding and the criminal con- viction were "part of a single, coordinated prosecu- tion of [a] person involved in alleged criminal ac- tivity,' " J.A. 29-30, and that such an effort did not violate the Double Jeopardy Clause. For the reasons that follow, I would affirm this holding of the district court. I. In United States v. Halper, the Supreme Court held that a civil sanction, when applied against an individual also subject to criminal conviction, may constitute "punishment" that requires a double jeop- ardy anlysis. United States v. Halper, 490 U.S. 435, 448 (1989). However, the Court indicated that its decision was not intended to "prevent the Govern- ment from seeking and obtaining both the full civil penalty and the full range of statutorily authorized criminal penalties in the same proceeding." Halper, 490 U.S. at 450-51. Thus, the Double Jeopardy Clause offers protection when the government has al- ready imposed a penalty, either civil or criminal, and ---------------------------------------- Page Break ---------------------------------------- 20a seeks to impose further punishment out of dissatis- faction with the earlier result, id. at 451 n.10, but not in the instance of a single proceeding seeking the full range of available sanctions. See also United States v. Hudson, 14 F.3d 536, 540 (10th Cir. 1994) (citing United States v. Bizzel, 921 F.2d 263, 267 (10th Cir. 1990)) (finding that the order of penal- ties is nonmaterial to the double jeopardy question). The Court recently reaffirmed this principle in De- partment of Revenue of Montana v. Kurth Ranch, 114 s, ct. 1937, 1945 (1994 ).' Unlike the majority, I believe that this ease in- volves a sufficiently coordinated proceeding to fall under the holdings in United States v. Millan, 2 F.3d 17 (2d Cir. 1993), cert. denied, 114 S. Ct. 922 (1994), and United States v. One Single Family Residence Located at 18755 North Bay Road, Miami, 13 F.3d 1493 (11th Cir. 1994). In Millan, the Sec- ond Circuit found that the civil forfeiture action against defendant's bank accounts and certain prop- erties and his conviction on narcotics charges were not subject to double jeopardy analysis because the government's actions. were part of a "single, coor- dinated prosecution of persons involved in alleged criminal activity. " Millan, 2 F.3d at 20. It is true, as the majority points out, that Millan involved a much clearer case of coordinated proceedings. How- ever, the Second Circuit's concern in that case, and . ___________________(footnotes) 1 In Kurth Ranch, the Court noted that "Montana no doubt could collect its tax on the possession of marijuana, for exam- ple, if it had not previously punished the taxpayer for the same offense, or, indeed, if it had assessed the tax in the same proceeding that resulted in his conviction." Kurth Ranch, 114 S. Ct. at 1945 (citing Missouri v. Hunter, 459 U.S. 359, 368-69 (1983) ). ---------------------------------------- Page Break ---------------------------------------- 21a its focus, was whether the timing of the civil and criminal actions allowed the government to punish the defendant with a second action if it believed that the defendant had not received a sanction that was adequately severe in the first case. The Second Cir- cuit stated that its decision did not run afoul of the Supreme Court's concern in Halper that the govern- ment might abuse its resources by seeking to punish defendants a second time because the civil and crim- inal actions at issue were contemporaneous, and it was clear to all the parties that the government was pursuing the full range of its remedies regardless of the outcome in either the civil or criminal proceed- ings. Millan, 2 F.3d at 20-21. This was also the logic of the Eleventh Circuit in One Single Family Residence, in which the court found that "the circum- stantes of the simultaneous pursuit by the govern- ment of criminal and civil sanctions against [the de- fendant] . . . falls within the contours of a single, coordinated prosecution." One Single Family Resi- dence, 13 F.3d at 1499. 2 It is this logic that underlies my conclusion that there was no double jeopardy vio- lation in this case. ___________________(footnotes) 2 In One Single Family Residence, a civil forfeiture action was instituted against the home of the defendant in October 1990; five months later, in late March 1991, an indictment was returned against the defendant. The government pur- sued both remedies, obtaining a conviction on October 30, 1991, and a subsequent order of forfeiture. The Eleventh Circuit noted, as the Second Circuit had in Millan, that the case involved no potential for the government to seek a sec- ond punishment out of dissatisfaction with the outcome in the first action because the commencement of a civil action before the imposition of a criminal penalty precluded such a result. One Single Family Residence, 13 F.3d at 1499 (citing Millan, 2 F.3d at 20). ---------------------------------------- Page Break ---------------------------------------- 22a I believe that the timing of the civil and criminal proceedings and the potential for government abuse of those proceedings are the. central factors in assess- ing the double jeopardy concerns in this case. Such an approach avoids the inevitable difficulty of a case- by-case comparison of the level of coordination, the majority's method for making this determination. Merely looking at whether the proceedings at issue bear sufficient similarity -to the proceedings in Millan presents the difficult problem of determining how much similarity it required to permit a finding of a single, coordinated proceeding. For example, in this case, the proceedings against defendant and his prop- erty took place in close time proximity to one an- other. The government commenced civil forfeiture proceedings against the home owned by defendant and his wife on September 30, 1992, and a grand jury returned an indictment against defendant on Feb- ruary 5, 1993. Pursuant to a stipulated settlement agreement, the district court entered a consent judg- ment in the civil forfeiture proceeding on May 24, 1993. Defendant was convicted on the criminal charge on July 2, 1993. It was clear to defendant at the time he entered into the stipulated settlement agreement that the government was pursuing its full range of remedies against him. Is this enough factual similarity to apply Millan and One Single Family Residence? The majority concludes that it is not, but another panel could easily reach a contrary conclu- sion. Given the inherent problems in following such an unpredictable approach, I feel it is necessary to determine the case on a more objective and reliable basis. I conclude that this case involves a single, co- ordinated proceeding because it does not present the potential for government abuse of process; the gov- ---------------------------------------- Page Break ---------------------------------------- 23a ernment instituted and pursued both proceedings against defendant before it knew the outcome of either case. It is true, as the majority points out, that the civil and criminal proceedings against defendant were handled by separate counsel from the United States Attorney's office and that the government attorneys did not appear to be actively collaborating, However, in Millan, the Second Circuit observed that the fact o-f separate proceedings is not dispositive in deter- mining whether the government is employing a single proceeding to prosecute a defendant. "Civil and crim- inal suits, by virtue of our federal system of pro- cedure, must be filed and docketed separately. There- fore, courts must look past the procedural require- ments and examine the essence of the actions at hand by determining when, how, and why the civil and criminal actions were initiated." Millan, 2 F.3d at 20. In this case, the civil and criminal proceedings against defendant and his property were active dur- ing the same time frame, and defendant knew at the time of the settlement in the civil forfeiture action that a criminal action was pending. Moreover, both actions resulted from a search of defendant's property and the surrounding areas, a search that revealed extensive marijuana production and possession. In United States v. Torres, 28 F.3d 1463, 1464-65 (7th Cir.), cert. denied, 115 S. Ct. 669 (1994), the Seventh Circuit questioned the continued applicability of Millan and One Single Family Residence after the Supreme Court's recent decision in Kurth Ranch. However, I do not believe that Kurth Ranch neces- sarily changes this result. Kurth Ranch does not hold that every civil action the government pursues against ---------------------------------------- Page Break ---------------------------------------- 24a a defendant subject to other penalties constitutes a separate proceeding. In fact, Kurth Ranch itself in- cluded a criminal penalty, a civil forfeiture action, a bankruptcy action, and a tax assessment. Kurth Ranch, 114 S. Ct. at 1941-44. There was apparently no challenge to the simultaneous pursuit of a crim- inal action and a civil forfeiture proceeding, the case we are dealing with here. Moreover, the Court, by its own language, distinguished Kurth Ranch, noting that the tax statute at issue did not raise "the ques- tion whether an ostensibly civil proceeding that is designed to inflict punishment may bar a subsequent proceeding that is admittedly criminal in character." Kurth Ranch, 114 S. Ct. at 1947 n.21. The Court's primary focus in Kurth Ranch was on the issue of whether Montana's drug tax constituted a penalty for double jeopardy purposes. The Court never questioned the civil forfeiture action but dealt specifically and exclusively with the tax assessment. The language of the decision suggests that the Court viewed the case as different from other civil actions because it was based on a tax issue. The Court said: "[T]he tax assessment not only hinges on the com- mission of a crime, it also is exacted only after the taxpayer has been arrested for the precise conduct that gives rise to the tax obligation in the first place." Kurth Ranch, 114 S. Ct. at 1947. Thus, in Torres, the Seventh Circuit interperted Kurth Ranch as deal- ing with the collection of a monetary penalty for a crime. Torres, 28 F.3d at 1464-65. The Montana tax could be imposed only after a criminal conviction was obtained. There was no question that the same conduct was involved. That is not the case here. De- fendant did not have to be convicted of the drug ---------------------------------------- Page Break ---------------------------------------- 25a offense before a civil forfeiture could be pursued. In fact, the civil proceedings were begun first. There- fore, I conclude that neither the civil forfeiture nor the criminal conviction was imposed as punishment consequent upon defendant's criminal conviction or admission of guilt. Because I conclude that the government was not acting to pursue a second punishment out of dissatis- faction with the first outcome, the only remaining concern is whether the "total punishment exceed [s] that authorized by the legislature." Halper, 490 U.S. at 450. Defendant was convicted of violating 21 U.S.C. 841 (a) (1). Under 21 U.S.C. 841 (b) (1) (B) (vii), defendant was subject to a term of im- prisonment of not less than five years, nor more than 40 years; a fine not to exceed $2,000,000; and a term of supervised release of at least four years. Defend- ant was sentenced to 63 months imprisonment and four years of supervised release. No fine was im- posed. Thus, defendant's sentence was clearly within the range of authorized punishment. In addition, pursuant to 21 U.S.C. 881 (a) (7), any real property that is used or intended to be used to facilitate the commission of a violation of 21 U.S.C. 801 et seq. that is punishable by more than one year in prison is subject to forfeiture unless the owner qualifies as an "innocent owner." Marijuana stems and seeds were found in defendant's home during the search of his property; furthermore, the police re- ceived notice that defendant had been seen with mari- juana at his home and had shared marijuana with family members and acquaintances. Defendant's home was, therefore, properly subject to civil for- ---------------------------------------- Page Break ---------------------------------------- 26a faiture under 21 U.S.C. 881 (a) (7), a civil penalty well within the bounds set forth by Congress. II. I also note my disagreement with the majority's conclusion that the civil forfeiture action and defend- ant's criminal prosecution are based on the same of- fense. The majority concludes that the civil forfeit- ure necessarily requires proof that defendant was manufacturing marijuana, and the criminal offense is effectively subsumed by the forfeiture. Again, I disagree. In the criminal prosecution in this case, defendant was convicted on one count of manufacturing mari- juana in violation of 21 U.S.C. 841 (a) (1). For defendant to be found guilty under this statute, the prosecution had to show (1) that defendant manu- factured marijuana and (2) that he did so intention- ally or knowingly. See United States v. Littered, 910 F.2d 547, 550 (9th Cir. 1990) (requiring the same elements to prove a charge of manufacturing meth- amphetamine ). However, defendant was charged with the manufacture of marijuana only during the year 1992. By contrast, the civil forfeiture complaint charged that defendant's property was used or intended to be used to facilitate the unlawful processing and distri- bution of a controlled substance for several years. J.A. 19. In order to prevail in the civil forfeiture action, the government would have to have produced proof of probable cause to believe (1) that the prop- erty was used or intended to be used to facilitate the manufacture and distribution of marijuana and (2) that this offense was punishable under Title 21 of the ---------------------------------------- Page Break ---------------------------------------- 27a United States Code by imprisonment of more than one year. 21 U.S.C. 881 (a) (7); United States v. Real Property Known and Numbered as Rural Route 1, Box 137-B, Cutler, Ohio, 24 F.2d 845, 848 (6th Cir. 1994 ). The majority claims that the government could not confiscate defendant's residence without a showing that he was manufacturing marijuana. This view, however, overlooks the fact that the civil for- feiture action required a showing that defendant's property was involved in the commission or facilita- tion of both processing and distribution of a con- trolled substance over the course of several years. As earlier stated, the criminal indictment charged de- fendant only with the manufacture of a controlled substance during 1992. Had the civil forfeiture ac- tion been adjudicated, the government might have es- tablished its case with evidence relating solely to processing and distribution activities in years other than 1992. Under those circumstances, the criminal prosecution and the civil forfeiture action would un- doubtedly relate to separate offenses under the Double Jeopardy Clause. United States v. Miller, 870 F.2d 1067,1069-72 (6th Cir. 1989). III. For the reasons stated, I would hold that the civil forfeiture action against defendant's property fol- lowed by defendant's criminal prosecution did not create a double jeopardy violation, and I would affirm the judgment of the district court. ---------------------------------------- Page Break ---------------------------------------- 28a APPENDIX B UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION Civil No. 92 CV 75943 DT Honorable Lawrence Zatkoff UNITED STATES OF AMERICA, PLAINTIFF, VS. CERTAIN REAL PROPERTY LOCATED AT 1700 BRADEN ROAD, PERRY, SHIAWASSEE COUNTY, MICHIGAN, TOGETHER WITH ALL OF ITS FIXTURES, IMPROV- MENTS AND APPURTENANCES, DEFENDANT. COMPLAINT FOR FORFEITURE NOW COMES the United States of America, Plain- tiff, STEPHAN J. MARKMAN, United States Attor- ney, by and through JOYCE F. TODD, Assistant United States Attorney, and states in support of this Complaint for forfeiture in rem that: 1) This action is a civil action in rem brought to enforce the provision of 21 U.S.C. 881 (a) ( 7 ) for the forfeiture of real property which was used or in- tended to be used to facilitate the commission of a violation of Title 21, United States Code, Section 801 et seq. punishable by more than one year's im- prisonment. ---------------------------------------- Page Break ---------------------------------------- 29a 2) This Court has jurisdiction to hear this action pursuant to 28 U.S.C. 1324, 1355, 1356, 1395, and 21 U.S.C. 881 (a) (7). 3) That the defendant real property with building, appurtenances, and improveemnts is legally described as follows: Part of the West 1/2 of the Northeast 1/4 of Sec- tion 32, Town 5 North, Range 3 East, Michigan, described as: Beginning at a point on the North line of Section 32 which is North 89 degrees 12 minutes 20 seconds East 669.82 feet from the North 1/4 corner of Section 32; thence continuing along said North line of Section North 89 de- grees 12 minutes 20 seconds East 633.84 feet; thence South 01 degrees 46 minuts 55 seconds East 686.20 feet; thence South 89 degrees 12 minutes 20 seconds West 637.22 feet; thence North 01 degrees 30 minutes 00 seconds West 686.15 feet to the point of beginning. Subject to that part now used as Braden Road, so-called. and is commonly known as CERTAIN REAL PROP- ERTY LOCATED AT 1700 BRADEN ROAD, PERRY, SHIAWASSEE COUNTY, MICHIGAN, TOGETHER WITH ALL OF ITS FIXTURES, IM- PROVEMENTS AND APPURTENANCES. 4) Said property is currently titled in the name of Guy J. Ursery and Cynthia K. Ursery. 5) For several years, the defendant real property was used or intended to be used to facilitate the un- lawful processing `and distribution of a controlled sub- stance and is forfeitable under 21 U.S.C. 881 (a) (7), all as more fully set forth in the affidavit in support of seizure warrant issued by Magistrate Judge Virginia Morgan on September 30, 1992, and ---------------------------------------- Page Break ---------------------------------------- 30a assigned Miscellaneous Action No. 92 X 75843. Said seizure warrant, along with each and every allegation set forth in its supportive affidavit, are adopted and incorporated into the body of this Complaint by refer- ence as if the same were fully and completely herein set forth as Appendix A. WHEREFORE, the United States of America prays that a warrant for arrest of the defendant CERTAIN REAL PROPERTY LOCATED AT 1700 BRADEN ROAD, PERRY, SHIAWASSEE COUNTY, MICHIGAN, TOGETHER WITH ALL OF ITS FIXTURES, IMPROVEMENTS AND AP- PURTENANCES; that due notice be given to all parties to appear and show cause why the forfeiture should not be decreed; that judgment be entered de- claring the defendant property to be condemned and forfeited to the United States of America for dis- position according to law; and that the United States of America be granted such other and further relief as this Court may deem just and proper, together with the costs and disbursements of this action. Respectfully submitted, STEPHEN J. MARKMAN United States Attorney /S/ Joyce F. Todd JOYCE F. TODD (P 31026 j Assistant U.S. Attorney 817 Federal Building 231 W. Lafayete Detroit, MI 48226 (313) 237-4775 ---------------------------------------- Page Break ---------------------------------------- 31a VERIFICATION I, DAVID J. PORTELLI, state that I am an Assistant United States Attorney for the Eastern District of Michigan. I have read the foregoing Com- plaint for Forfeiture and asserts that the facts con- tained therein are true to the best of my knowledge and belief, based on information officially presented to me by agents of the Drug Enforcement Adminis- tration. /s/ David J. Portelli DAVID J. PORTELLI Dated: September 25, 1992 VERIFICATION I, CHRISTOPHER J. HACKBARTH, am a Spe cial Agent of the Drug Enforcement Administration. I have read the foregoing Complaint for Forfeiture and assert that the facts contained therein are true to the best of my knowledge and belief, based upon knowledge possessed by me and/or on information received from other law enforcement agents. /s/ CHRISTOPHER J. HACKBARTH Dated: September 25, 1992 ---------------------------------------- Page Break ---------------------------------------- 32a APPENDIX C UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION Civil No. 92 CV 75843 DT Honorable Lawrence Zatkoff UNITED STATES OF AMERICA, PLAINTIFF, vs. CERTAIN REAL PROPERTY LOCATED AT 1700 BRADEN ROAD, PERRY, SHIAWASSEE COUNTY, MICHIGAN, TOGETHER WITH ALL OF ITS FIXTURES, IMPROVE- MENTS AND APPURTENANCES, DEFENDANT. STIPULATION FOR ENTRY OF CONSENT JUDGMENT OF FORFEITURE NOW COMES the Plaintiff, UNITED STATES OF AMERICA, STEPHEN J. MARKMAN, United States Attorney, by JOYCE F. TODD, Assistant United States Attorney; and claimants, GUY UR- SERY and CYNTHIA URSERY, by and through their attorney, LAWRENCE J. EMERY, and make the following stipulation: 1) This action is a civil in rem controlled sub- stance forfeiture action brought pursuant to Title 21 USC 881 (a) (7). 2) This stipulation is submitted to resolve this action in its entirety, ---------------------------------------- Page Break ---------------------------------------- 33a 3) The above parties, being aware of their rights in this matter hereby stipulate and agree as follows: (a) Claimants, Guy Ursery and Cynthia Ursery, agree to pay $13,250.00 to the United States of America in full settlement of all claims of the United States against the real property located at 1700 BRADEN ROAD, PERRY, SHIAWAS- SEE COUNTY, MICHIGAN, more fully de- scribed as: Part of the West 1/2 of the Northeast 1/4 of Section 32, Town 5 North, Range 3 East, Michigan, described as: Beginning at a point on the North line of Section 32 which is North 89 degrees 12 minutes 20 seconds East 669.82 feet from the North 1/4 corner of Section 32; thence continuing along said North line of Section North 89 degrees 12 minutes 20 seconds East 633.84 feet; thence South 01 degrees 46 minutes 55 seconds East 686.20 feet; thence South 89 degrees 12 minutes 20 seconds West 637.22 feet; thence North 01 degrees 30 minutes 00 sec- onds West 686.15 feet to the point of begin- ning. Subject to that part now used as Bra- den Road, so-called: (b) Upon the such payment being made, the Lis Pendens that has been filed with the Shiawassee County Register of Deeds will be discharged by the United States of America. (c) If the payment in full is not received by the United States on or before 60 days of the entry date of this judgment, the defendant property will ---------------------------------------- Page Break ---------------------------------------- 34a automatically be forfeited to the United States of America. (d) The claimants, for purposes of this settle- ment only, do not contest that as provided in Title 28 USC $2465, the United States and or its agents had reasonable cause for the seizure of defendant property. Approved as to substance and form: /s/ Joyce F. Todd /s/ Lawrence J. Emery JOYCE F. TODD (P31026) LAWRENCE J. EMERY Assistant U.S. Attorney (P23263) 231 W. Lafayette, 9th Floor Attorney for Claimants Detroit. MI 48226 GUY URSERY (313) 237-4775 Dated: 5-20-93 CYNTHIA URSERY 3401 E. Saginaw, Suite 104 Lansing, MI 48912 (517) 337-4866 Dated: 5-17-93 ---------------------------------------- Page Break ---------------------------------------- 35a APPENDIX D UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION Civil No. 92 CV 75843 DT Honorable Lawrence Zatkoff UNITED STATES OF AMERICA, PLAINTIFF, vs. CERTAIN REAL PROPERTY LOCATED AT 1700 BRADEN ROAD, PERRY, SHIAWASSEE COUNTY, MICHIGAN, TOGETHER WITH ALL OF ITS FIXTURES, IMPROVE- MENTS AND APPURTENANCES, DEFENDANT. CONSENT JUDGMENT OF FORFEITURE This matter having come before this Court pur- suant to the Stipulation For Entry of Judgment en- tered into between the claimants, GUY URSERY and CYNTHIA URSERY, and the Plaintiff, UNITED STATES OF AMERICA. This Court, having re- viewed that Stipulation, the other pleadings filed in this action, and being aware of the law applicable to this action; IT IS HEREBY ORDERED THAT the claimants, Guy Ursery and Cynthia Ursery, shall pay $13,250.00 ---------------------------------------- Page Break ---------------------------------------- 36a to the United States of America, within 60 days of the entry of this judgment; IT IS FURTHER ORDERED THAT upon such payment being received, the real property, commonly known as 1700 BRADEN ROAD, PERRY, SHIA- WASSEE COUNTY, MICHIGAN, being more fully described as: Part of the West 1/2 of the Northeast 1/4 of Sec- tion 32, Town 5 North, Range 3 East, Michigan, described as:. Beginning at a point on the North line of Section 32 which is North 89 degrees 12 minutes 20 seconds East 669.82 feet from the North 1/4 corner of Section 32; thence continuing along said North line of Section North 89 degrees 12 minutes 20 seconds East 633.84 feet; thence South 01 degrees 46 minutes 55 seconds East 686.20 feet; thence South 89 degrees 12 minutes 20 seconds West 637.22 feet; thence North 01 degrees 30 minutes 00 seconds West 686.15 feet to the point of beginning. Subject to that part now used as Braden Road, so-called. shall be released from- all claims of the United States of America. IT IS FURTHER ORDERED that if the payment in full is not received by the United States on or be- fore 60 days of the entry date of this judgment, the defendant property will automatically be forfeited to the United States of America. IT IS FURTHER ORDERED THAT the parties further stipulate that the claimants, for purpose of this settlement only, do not contest that as provided in Tile 28 USC $2465, the United States and or its ---------------------------------------- Page Break ---------------------------------------- 37a agents had reasonable cause for the seizure of defend- ant property. /s/ Lawrence Zatkoff LAWRENCE ZATKOFF United States District Judge Entered: May 24, 1993 Approved as to substance and form: /s/ Joyce F. Todd /s/ JOYCE F. TODD (P31026) Assistant U.S. Attorney 231 W. Lafayette, 9th Floor Detroit, MI 48226 (313) 237-4775 Dated: 5-20-93 Lawrence J. Emery LAWRENCE J. EMERY (P23263) Attorney for Claimants GUY URSERY CYNTHIA URSERY 3401 E. Saginaw, Suite 104 Lansing, MI 48912 (517) 337-4866 Dated: 5-17-93 ---------------------------------------- Page Break ---------------------------------------- 38a APPENDIX E UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION Criminal No. 93-50016 UNITED STATES OF "AMERICA, PLAINTIFF v. GUY JEROME URSERY, DEFENDANT MEMORANDUM AND ORDER I. On July 2, 1993 a-jury found defendant guilty of a violation of 21 U.S.C. 841 (a) (1), manufacture of marijuana. More particularly, the jury found de- fendant was growing a substantial number of mari- juana plants in a heavily wooded area in close prox- imity to his home in rural Shiawasee County, Mich- igan. The offense was investigated by the Michigan State Police; there was no federal involvement other than at the prosecution stage. Defendant has yet to be sentenced. Now before the Court are defendant's motion for a new trial and motion to dismiss. The motion to dismiss argues that the conviction constitutes double jeopardy, as a result of the civil forfeiture proceed- ing instituted and concluded in favor of the govern- ment before his conviction in this case. The motion ---------------------------------------- Page Break ---------------------------------------- 39a to dismiss is DENIED. The forfeiture proceeding was settled by a consent judgment. That is not an adjudication. Furthermore, the forfeiture proceeding and criminal conviction were "part of a single, co- ordinated prosecution of [a] person involved in al- leged criminal activity." United States V. Millan 1993 U.S. App. LEXIS 20165 (2nd Cir. 1993). While the Court is surprised that the Government proceeded with its forfeiture action before obtaining an indictment, it nevertheless recognizes that such a single coordinated prosecution does not give rise to double jeopardy. The motion for new trial raises four issues: 1. Retaliation for refusal to become an inform- ant. 2. Violation of due process and equal protection because of the lack of federal involvement in the investigation and the substantially higher penalties under federal law than un- der State law. 3. Prejudice because of the reference in the tes- timony to defendant's threatening to use a firearm against police officers and because the prosecutor in closing commented on defend- ant's not taking the witness stand. 4. Invalid search. Issues 1 and 2 look to dismissal of the prosecu- tion and will be treated as grounds for a judgment of acquittal, Fed. R. Crim. P. 29. Issue 3 looks to a second trial and will be treated as a motion for new trial, Fed. R. Crim. P. 33. Issue 4 was decided pre- trial when Judge Stewart Newblatt denied a motion to suppress and will not be re-examined. If Judge Newblatt is wrong, defendant will be entitled to a ---------------------------------------- Page Break ---------------------------------------- 40a new trial in theory, but in practice the case would have to be dismissed. The Court notes, however, that the affidavit in support of the search warrant de- scribed the affiant's personal observation of growing marijuana in addition to the information furnished by a reliable informant. II. As to arguments regarding the threat of federal prosecution if defendant did not become an inform- ant and the federal prosecution itself, the Sixth Cir- cuit decision in United States v. Allen, 954 F.2d 1160 (6th Cir. 1992), is a short "no" answer. Nothing in the record suggests that the federal prosecutor did other than exercise discretion in taking the case to the grand jury and thereafter obtaining an indict- ment. Whether good or bad judgment was exhibited is not for the Court to decide. As stated in Allen, 954 F.2d at 1166: Prosecutors are given great discretion in deter- mining which cases will be prosecuted: "[So] long as the prosecutor has probable cause to be- lieve that the accused committed an offense de- fined by statute, the decision of whether or not to prosecute and what charge to file . . . gen- erally rests entirely in his discretion." Borden- kircher v. Hayes, 434 U.S. 357, 364, 98 S. Ct. 663, 668-69, 54 L. Ed. 2d 604 (1978) (footnote omitted). . . . . The prosecutor may properly base his decision on the penalties available upon conviction when determining what offense will be charged against a defendant. United States v. Batchelder, 442 ---------------------------------------- Page Break ---------------------------------------- 41a U.S. 114, 125, 99 S. Ct. 2198, 2204-05, 60 L. Ed. 2d 755 (1979). The claim of prejudice arising from a State Police Officer's testimony that defendant threatened to shoot any police officer who came after him must be re- jected. The statement was made in a response to a question about the presence of an excessive number of police officers at the execution of the search war- rant. Defendant initially suggested the number was excessive. Defendant was also aware of his statement in advance of trial. The Court effectively told the jury to disregard the testimony of the State Police Officer. Under the circumstances more was not neces- sary to eliminate any possible prejudice. The claim of prejudice regarding the prosecutor's final argument must also be rejected. No comment was made on the defendant's failure to testify. There was no dispute that marijuana was being grown in proximity to defendant's home. Defendant suggested the possibility of some third-party's growing the marijuana. In response, the prosecutor pointed out the unlikelihood of defendant's suggestion, since de- fendant (or for that matter others in the home) more than likely would have seen a stranger tending the plants. III. The motion for judgment of acquittal is DENIED. The motion for new trial is DENIED. SO ORDERED. /s/ Avern Cohn AVERN COHN United States District Judge DATED: Detroit, Michigan Detroit, Michigan ---------------------------------------- Page Break ---------------------------------------- 42a APPENDIX F UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN Case Number: 93-50016 UNITED STATES OF AMERICA v. GUY JEROME URSERY LAWRENCE EMERY Defendant's Attorney JUDGMENT IN A CRIMINAL CASE (For Offenses Committed On or After November 1, 1987) THE DEFENDANT: O pleaded guilty to count(s) ___________________. x was found guilty on count(s) One after a plea of not guilty. Accordingly, the defendant is adjudged guilty of such count (s), which involve the following offenses: Date Offense count Title & Section Nature of Offense Concluded Number (s) . ________________________________________________ 21:USC:841(a)(1) Manufacture of 7/30/92 One Marijuana The defendant is sentenced as provided in pages 2 through 4 of this judgment, The sentence is im- posed pursuant to the Sentencing Reform Act of 1984. O The defendant has been found not guilty on count (s)_____________, and is discharged as to such count(s). ---------------------------------------- Page Break ---------------------------------------- 43a O Count (s)__________ (is) (are) dismissed on the motion of the United States. O It is ordered that the defendant shall pay a special assessment of $50.00, for count(s) One, which shall be due x immediately O as follows: IT IS FURTHER ORDERED that the defendant shall notify the United States attorney for this dis- trict within 30 days of any change of name, resi- dence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judg- ment are fully paid. Defendant's Sot. Sec. No.: 363-64-7660 Defendant's Date of Birth: August 4, 1956 Defendant's Mailing Address: 1700 Braden Road Perry, MI 48872 Defendant's Residence Address: __________________________ ___________________________ January 19, 1994 Date of Imposition of Sentence /s/ Avern Cohn Signature of Judicial officer AVERN COHN, U.S. District Judge Name & Title of Judicial officer January 20, 1994 Date ---------------------------------------- Page Break ---------------------------------------- 44a IMPRISONMENT The defendant is hereby committed to the custody of. the United States Bureau of Prisons to be im- prisoned for a term of sixty three (63) months. O- The Court makes the following recommendations to the Bureau of Prisons: O- The defendant is remanded to the custody of the United States Marshal. O-The defendant shall surrender to the United States Marshal for this district, a.m. O at ____ p.m. on _______. as notified by the Marshal. O- The defendant shall surrender for service of sen- tence at the institution designated by the Bureau of Prisons x before 2 p.m. on February 24, 1994. O as notified by the United States Marshal. O as notified by "the Probation Office. RETURN I have executed this Judgment as follows: Defendant delivered on_____ to______ at _________________, with a certified copy of this Judgment. _______________________ United States Marshal By_____________________ Deputy Marshal ---------------------------------------- Page Break ---------------------------------------- 45a SUPERVISED RELEASE Upon release from imprisonment, the defendant shall be unsupervised release for a term of four (4) years While on supervised release, the defendant shall not commit another federal, state, or local crime and shall not illegally possess a controlled substance. The defendant shall comply with the standard conditions that have been adopted by this court (set forth be- low). If this judgment imposes a restitution obliga- tion, it shall be a condition of supervised release that the defendant pay any such restitution that remains unpaid at the commencement of the term of super- vised release. The defendant shall comply with the following additional conditions: X The defendant shall report in person to the pro- bation office in the district to which the defend- ant is released within 72 hours of release from the custody of the Bureau of Prisons. O The defendant shall pay any fines that remain unpaid at the commencement of the term of su- pervised release. X The defendant shall not possess a firearm or de- structive device. 1. Defendant shall participate in a drug abuse program, if necessary as directed by the Pro- bation Department STANDARD CONDITIONS OF SUPERVISION While the defendant is on supervised release pur- suant to this judgment, the defendant shall not com- mit another federal, state or local trim. In addition: ---------------------------------------- Page Break ---------------------------------------- 46a 1) the defendant shall not leave the judicial district without the permission of the court or probation officer; 2) the defendant shall report to the probation of- ficer as directed by the court or probation of- ficer and shall submit a truthful and complete written report within the first five days of each month; 3)the defendant shall answer truthfully all inquir- ies by the probation officer and follow the in- structions of the probation officer; 4)the defendant shall support his or her depend- ents and meet other family responsibilities; 5)the defendant shall work regularly at a lawful occupation unless excused by the probation of- ficer for schooling, training, or other acceptance reasons; 6)the defendant shall notify the probation officer within 72 hours of any change in residence or Employment; 7)the defendant. shall refrain from excessive use of alcohol and shall not purchase, possess, use, dis- tribute, or administer any narcotic or other con- trolled substance, or any paraphernalia related to such substances, except as prescribed by a physician; 8)the defendant shall not frequent places where controlled substances are illegally sold, used, dis- tributed, or administered; 9) the defendant shall not associate with any per- sons engaged in criminal activity, and shall not ---------------------------------------- Page Break ---------------------------------------- 47a associate with any person convicted of a felony unless granted permission to do so by the proba- tion officer; 10) the defendant shall permit a probation officer to visit him or her at any time at home or else- where and. shall permit confiscation of any con- traband observed in plain view by the probation officer; 11) the defendant shall notify the probation officer within seventy-two hours of being arrested by a law enforcement officer; 12) the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court; 13) as directed by the probation officer, the defend- ant shall notify third parties of risks that may be occasioned by the defendant's criminal record or personal history or characteristics, and shall permit the probation officer to make such noti- fications and to confirm the defendant's compli- ance with such notification requirement. STATEMENT OF REASONS O. The court adopts the factual findings and guide- line application in the presentence report. OR X. The court adopts the factual findings and guide- line application in the presentence report except (see attachment, if necessary): The Court reduced the Offense Level by 2 points as the Court finds that the firearms found ---------------------------------------- Page Break ---------------------------------------- 48a at defendant's residence should not be added in the Offense Level Guideline Range Determined by the Court: Total Offense Level: 26 Criminal History Category: I Imprisonment Range: 63 to 78 months Supervised Release Range: at least 4 years Fine Range: $12,500 to $2,000,000.00 x Fine is waived or is below the guideline range, because of the defendant's inabil- ity to pay. Restitution: $ N/A O Full restitution is not ordered for the following reason(s) : X. The sentence is within the guideline range, that range does not exceed 24 months, and the court finds no reason to depart from the sentence called for by application of the guidelines. OR O. The sentence is within the guideline range, that exceeds 24 months, and the sentence is imposed for the following reason(s) : OR The sentence departs from the guideline range O upon motion of the government, as a result of defendant's substantial assistance. O for the following reason(s) : ---------------------------------------- Page Break ---------------------------------------- 49a APPENDIX G The Fifth Amendment to the Constitution provides: No person shall be held to answer for a capi- tal, or otherwise, infamous crime, unless on a presentment or indictment of a Grand Jury, ex- cept in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be com- pelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Section 841 of Title 21, United States Code, pro- vides: Prohibited acts A Unlawful acts (a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or inten- tionally- (1) to manufacture, distribute, or dispense, Or possess with intent to manufacture, distribute, or dispense, a controlled substance; or (2) to create, distribute, or dispense, or pos- sess with intent to distribute or dispense, a counterfeit substance. Penalties (b) Except as otherwise provided in section 859, 860, or 861 of this title, any person who violates sub- ---------------------------------------- Page Break ---------------------------------------- 50a section (a) of this section shall be sentenced as fol- lows: (1) (A) In the case of a violation of subsection (a) of this section involving- (i) 1 kilogram or more of a mixture or sub- stance containing a detectable amount of heroin; (ii) 5 kilograms or more of a mixture or sub- stance containing a detectable amount of- (I) coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed; (11) cocaine, its salts, optical and geo- metric isomers, and salts of isomers; (III) ecgonine, its derivatives, their salts, isomers, and salts of isomers; or (IV) any compound, mixture, or prepa- ration which contains any quantity of any of the substances referred to in subclauses (I) through (III) ; (iii) 50 grams or more of a mixture or sub- stance described in clause (ii) which contains cocaine base; (iv) 100 grams or more of phencyclidine (PCP or 1 kilogram or more of a mixture or sub- stance containing a detectable amount of phen- cyclidine (PCP) ; (v) 10 grams or more of a mixture or sub- stance containing a detectable amount of lysergic acid diethylamide (LSD) ; (vi) 400 grams or more of a mixture or sub- stance containing a detectable amount of N- ---------------------------------------- Page Break ---------------------------------------- 51a phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] pro- panamide or 100 grams or more of a mixture or substance containing a detectable amount of any analogue of N-phenyl-N- [1-(2-phenylethyl) -4- piperidinyl) propanamide; (vii) 1000 kilograms or more of a mixture or substance containing a detectable amount of mari- huana, or 1,000 or more marihuana plants re- gardless of weight; or (viii) 100 grams or more of methampheta- mine, its salts, isomers, and salts of its isomers or 1 kilogram or more of a mixture or substance containing a detectable amount of methampheta- mine, its salts, isomers, or salts of its isomers; such person shall be sentenced to a term of imprison- ment which may not be less than 10 years or more than life and if death or serious bodily injury results from the use of such substance shall be not less than 20 years or more than life, a fine not to exceed the greater of that authorized in accordance with the provisions of Title 18, or $4,000,000 if the defendant is an individual or $10,000,000 if the defendant is other than an individual, or both, If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 20 years and not more than life imprisonment and if death or serious bodily injury results from the use of such substance shall be sen- tenced to life imprisonment, a fine not to exceed the greater of twice that authorized in accordance with the provisions of Title 18, or $8,000,000 if the defend- ant is an individual or $20,000,000 if the defendant is other than an individual, or both. If any person com- ---------------------------------------- Page Break ---------------------------------------- 52a mits a violation of this subparagraph or of section 849, 859, 860, or 861 of this title after two or more prior convictions for felony drug offense have be- come final, such person shall be sentenced to a man- datory term of life imprisonment without release and fined in accordance with the preceding sentence. Any sentence under this subparagraph shall, in the ab- sence of such a prior conviction, impose a term of supervised release of at least 5 years in addition to such term of imprisonment and shall, if there was such a prior conviction, impose a term of supervised release of at least 10 years in addition to such term of imprisonment. Notwithstanding any other provi- sion of law, the court shall not place on probation or suspend the sentence of any person sentenced under this subparagraph. No person sentenced under this subparagraph shall be eligible for parole during the term of imprisonment imposed therein. (B) In the case of a violation of subsection (a) of this section involving- (i) 100 grams or more of a mixture or sub- stance containing a detectable amount of heroin; (ii) 500 grams or more of a mixture or sub- stance containing a detectable amount of- (1) coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed; (II) cocaine, its salts, optical and geo- metric isomers, and salts of isomers; (III ) ecgonine, its derivatives, their salts, isomers, and salts of isomers; or ---------------------------------------- Page Break ---------------------------------------- 53a (IV) any compound, mixture, or prepa- ration which contains any quantity of any of the substances referred to in subclauses (I) through (III) ; (iii) 5 grams or more of a mixture or sub- stance described in clause (ii) which contains cocaine base; (iv) 10 grams or more of phencyclidine (PCP) or 100 grams or more of a mixture or substance containing a detectable amount of phencyclidine (PCP) ; (v) 1 gram or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD); (vi) 40 grams or more of a mixture or sub- stance containing a detectable amount of N- phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] pro- panamide or 10 grams or more of a mixture or substance containing a detectable amount of any analogue of N-phenyl-N-[1-(2-phenylethyl) -4- piperidinyl] propanamide; (vii) 100 kilograms or more of a mixture or substance containing a detectable amount of marihuana, or 100 or more marihuana plants re- gardless of weight; or (viii ) 10 grams or more of methampheta- mine, its salts, isomers, and salts of its isomers or 100 grams or more of a mixture or substance containing a detectable amount of methampheta- mine, its salts, isomers, or salts of its isomers; such person shall be sentenced to a term of imprison- ment which may not be less than 5 years and not more than 40 years and if death or serious bodily injury results from the use of such substance shall be ---------------------------------------- Page Break ---------------------------------------- 54a and not less than 20 years or more than life, a fine not to exceed the greater of that authorized in accordance with the provisions of Title 18, or $2,000,000 if the defendant is an individual or $5,000,000 if the de- fendant is other than an individual, or both. If any person commits such a violation after a prior convic- tion for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 10 years and not more than life imprisonment and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment, a fine not to exceed the greater of twice that authorized in accordance with the provisions of Title 18, or $4,000,000 if the defendant is an individual or $10,000,00 if the de- fendant is other than an individual, or both. Any sentence imposed under this subparagraph shall, in the absence of such a prior conviction, include a term of supervised release of at least 4 years in addition to such term of imprisonment and shall, if there was such a prior conviction, include a term of supervised release of at least 8 years in addition to such term of imprisonment. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under this subparagraph. No person sentenced under this subparagraph shall be eligible for parole during the term of imprisonment imposed therein. (C) In the case of a controlled substance in sched- ule I or II except as provided in subparagraphs (A), (B), and (D), such person shall be sentenced to a term of imprisonment of not more than 2 years and if death or serious bodily injury results from the use of such substance shall be sentenced to a term of im- prisonment of not less than twenty years or more ---------------------------------------- Page Break ---------------------------------------- 55a than life, a fine not to exceed the greater of that authorized in accordance with the provisions of Title 18, or $1,000,000 if the defendant is an individual or $5,000,000 if the defendant is other than an individ- ual, or both. If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment of not more than 30 years and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprison- ment, a fine not to exceed the greater of twice that authorized in accordance with the provisions of Title 18, or $2,000,000 if the defendant is an individual or $10,000,000 if the defendant is other than an individ- ual, or both. Any sentence imposing a term of im- prisonment under this paragraph shall, in the absence of such a prior conviction, impose a term of super- vised release of at least 3 years in addition to such term of imprisonment and shall, if there was such a prior conviction, impose a term of supervised release of at least 6 years in addition, to such term of im- prisonment. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under the pro- visions of this subparagraph which provide for a mandatory term of imprisonment if death or. serious bodily injury results, nor shall a person so sentenced be eligible for parole during the term of such a sentence. (D) In the case of less than 50 kilograms of mari- huana, except in the case of 50 or more marihuana plants regardless of weight, 10 kilograms of hashish, or one kilogram of hashish oil or in the case of any controlled substance in schedule III , such person shall, except as provided in paragraphs (4) and (5) ---------------------------------------- Page Break ---------------------------------------- 56a of this subsection, be sentenced to a term of imprison- ment of not more than 5 years, a fine not to exceed the greater of that authorized in accordance with the provisions of Title 18, or $250,000 if the defendant is an individual or $1,000,000 if the defendant is other than an individual, or both. If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment of not more than 10 years, a fine not to exceed the greater of twice that authorized in accordance with the provi- sions of Title 18, or $500,000 if the defendant is an individual or $2,000,000 if the defendant is other than an individual, or both. Any sentence imposing a term of imprisonment under this paragraph shall, in the absence of such a prior conviction, impose a term of supervised release of at least 2 years in addition to such term of imprisonment and shall, if there was such a prior conviction, impose a term of supervised release of at least 4 years in addition to such term of imprisonment. (2) In the case of a controlled substance in sched- ule VI, such person shall be sentenced to a term of imprisonment of not more than 3 years, a fine not to exceed the greater of that authorized in accord- ance with the provisions of Title 18, or $250,000 if the defendant is an individual or $1,000,000 if the defendant is other than an individual, or both. If any person commits such a violation after one or more prior convictions of him for an offense punish- able under this paragraph, or for a felony under any other provision of this subchapter or subchapter II of this chapter or other law of a State, the United States, or a foreign country relating to a narcotic drugs, marihuana, or depressant or stimulant sub- ---------------------------------------- Page Break ---------------------------------------- 57a stances, have become final, such person shall be sen- tenced to a term of imprisonment of not more than 6 years, a fine not to exceed the greater of twice that authorized in accordance with the provisions of Title 18, or $500,000 if the defendant is an individual or $2,000,000 if the defendant is other than an individ- ual, or both. Any sentence imposing a term of im- prisonment under this paragraph shall, in the ab- sence of such a prior conviction, impose a term of supervised release of at least one year in addition to such term of imprisonment and shall, if there was such a prior conviction, impose a term of supervised release of at least 2 years in addition to such term of imprisonment. (3) In the case of a controlled substance in sched- ule V, such person shall be sentenced to a term of imprisonment of not more than one year, a fine not to exceed the greater of that authorized in accord- ance with the provisions of Title 18, or $100,000 if the defendant is an individual or $250,000 if the de- fendant is other than an individual, or both. If any person commits such a violation after one or more convictions of him for an offense punishable under this paragraph, or for a crime under any other pro- vision of this subchapter or subchapter 11 of this chapter or other law of a State, the United States, or a foreign country relating to narcotic drugs, mari- huana, or depressant or stimulant substances, have become final, such person shall be sentenced to a term of imprisonment of not more than 2 years, a fine not to exceed the greater of twice that author- ized in accordance with the provisions of Title 18, or $200,000 if the defendant is an individual or $500,000 if the defendant is other than an individual, or both. ---------------------------------------- Page Break ---------------------------------------- 58a (4) Notwithstanding paragraph (1) (D) of this subsection, any person who violates subsection (a) of this section by distributing a small amount of mari- huana for no remuneration shall be treated as pro- vided in section 844 of this title and section 3607 of Title 18. (5) Any person who violates Subsection (a) of this section by cultivating a controlled substance on Federal property shall be imprisoned as provided in this subsection and shall be fined any amount not to exceed- (A) the amount authorized in accordance with this section; (B) the amount authorized in accordance with the provisions of Title 18; (C) $500,000 if the defendant is an individ- ual; or (D) $1,000,000 if the defendant is other than an individual; or both. (6) Any person who violates subsection (a) of this section, or attempts to do so, and knowingly or in- tentionally uses a poison, chemical, or other hazard- ous substance on Federal land and, by such use- (A) creates a serious hazard to humans, wildlife, or domestic animals, (B) degrades or harms the environment or natural resources, or (C] pollutes an aquifer, spring, stream, river, or body of water, shall be fined in accordance with Title 18, or im- prisonment not more than five years, or both. ---------------------------------------- Page Break ---------------------------------------- 59a (c) Repealed. Pub.L. 98-473, Title II, 224(a) (2), Oct. 12,1984,98 Stat. 2030. Offenses involving listed chemicals (d) Any person who knowingly or intentionally- (1) possesses a listed chemical with intent to manufacture a controlled substance except as au- thorized by this subchapter; (2) possesses or distributes a listed chemical knowing, or having reasonable cause to believe, that the listed chemical will be used to manufac- ture a controlled substance except as authorized by this title; or (3) with the intent of causing the evasion of the record-keeping or reporting requirements of section 830 of his title, or the regulations issued under that section, receives or distributes a re- portable amount of any listed chemical in units small enough so that the making of records or filing of reports under that section is not re- quired; shall be fined in accordance with Title 18, or im- prisoned not more than 10 years, or both. Boobytraps on Federal property; penalties; definitions (e) (1) Any person who assembles, maintains, places, or causes to be placed a boobytrap on Federal property where a controlled substance is being man- ufactured, distributed, or dispensed shall be sen- tenced to a term of imprisonment for not more than 10 years and shall be fined not more than $10,000. ---------------------------------------- Page Break ---------------------------------------- 60a (2) If any person commits such a violation after 1 or more prior convictions for an offense punishable under this subsection, such person shall be sentenced to a term of imprisonment of not more than 20 years and shall be fined not more than $20,000. (3) For the purposes of this subsection, the term "boobytrap" means any concealed or camouflaged device designed to cause bodily injury when triggered by any action of any unsuspecting person making contact with the device. Such term includes guns, ammunition, or explosive devices attached to trip wires or other triggering mechanisms, sharpened stakes, and lines or wires with hooks attached. Ten-year injunction as additional penalty (f) In addition to any other applicable penalty, any person convicted of a felony violation of this section relating to the receipt, distribution, or im- portation of a listed chemical may be enjoined from engaging in any regulated transaction involving a listed chemical for not more than ten years. Wrongful distribution or possession of listed chemicals (g) (1) Whoever knowingly distributes a listed chemical in violation of this subchapter (other than in violation of a recordkeeping or reporting require- ment of section 830 of this title) shall be fined under Title 18, or imprisoned not more than 5 years, or both. (2) Whoever possesses any listed chemical, with knowledge that the recordkeeping or report- ing requirements of section 830 of this title have not been adhered to, if, after such knowledge is ---------------------------------------- Page Break ---------------------------------------- 61a acquired, such person does not take immediate steps to remedy the violation shall be fined under Title 18, or imprisoned not more than one year, or both. * * * * * Section 881 of Title 21, United States Code pro- vides: Forfeitures Subject property (a) The following shall be subject to forfeiture to the United States and no property right shall exist in them: (1) All controlled substances which have been manufactured, distributed, dispensed, or acquired in violation of this subchapter. (2) All raw materials, products, and equip- ment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, importing, or exporting any controlled substance in violation of this subchapter. (3) All property which is used, or intended for use, as a container for property described in paragraph (l), (2), or (9). (4) All conveyances, including aircraft, ve- hicles, or vessels, which are used, or are intended for use, to transport, or in any manner to facili- tate the transportation, sale, receipt, possession, or concealment of property described in para- graph (l), (2), or (9), except that- (A) no conveyance used by any person as a common carrier in the transaction of business as a common carrier shall be for- feited under the provisions of this section ---------------------------------------- Page Break ---------------------------------------- 62a unless it shall appear that the owner or other person in charge of such conveyance was a consenting party or privy to a viola- tion of this subchapter or subchapter H of this chapter; (B) no conveyance shall be forfeited un- der the provisions of this section by reason of any act or omission established by the owner thereof to have been committed or omitted by any person other than such owner while such conveyance was unlawfully in the possession of a person other than the owner in violation. of the criminal laws of the United States, or of any State; and (C) no conveyance shall be forfeited un- der this paragraph to the extent of an inter- est of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge, consent, or willful blindness of the owner. (5) All books, records, and research, includ- ing formulas, microfilm, tapes, and data which are used, or intended for use, in violation of this subchapter. (6) All moneys, negotiable instruments, se- curities, or other things of value furnished or intended to be furnished by any person in ex- change for a controlled substance in violation of this subchapter, all proceeds traceable to such an exchange, and all moneys, negotiable instru- ments, and securities used or intended to be used to facilitate any violation of this subchapter, ex- ---------------------------------------- Page Break ---------------------------------------- 63a cept that 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 owner to have been com- mitted or omitted without the knowledge or con- sent of that owner. (7) All real property, including any right, title, and interest (including any leasehold inter- est) 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, except that no property shall be forfeited under this para- graph, to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner. (8) All controlled substances which have been possessed in violation of this subchapter. (9) All listed chemicals, all drug manufactur- ing equipment, all tableting machines, all encap- sulating machines, and all gelatin capsules, which have been imported, exported, manufactured, possessed, distributed, or intended to be distrib- uted, imported, or exported, in violation of a felony provision of this subchapter or subchapter II of this chapter. (10) Any drug paraphernalia (as defined in section 857 of this title). (11 ) Any firearm (as defined in section 921 of Title 18) used or intended to be used to fa- cilitate the transportation, sale, receipt, posses- ---------------------------------------- Page Break ---------------------------------------- 64a sion, or concealment of property described in paragraph (1) and (2) `and any proceeds trace- able to such property. Seizure pursuant to Supplemental Rules for Certain Admiralty and Maritime Claims; issuance of warrant authorizing seizure (b) Any property subject to civil forfeiture to the United States under this subchapter may be seized by the Attorney General upon process issued pursu- ant to the Supplemental Rules for Certain Admiralty and Maritime Claims by any district court of the United States having jurisdiction over the property, except that seizure without such process may be made when (1) the seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant; (2) the property subject to seizure has been the subject of a prior judgment in favor of the United States in a criminal injunction or for- feiture proceeding under this subchapter; (3) the Attorney General has probable cause to believe that the property is directly or indi- rectly dangerous to health or safety; or (4) the Attorney General has probable cause to believe that the property is subject to civil for- feiture under this subchapter. In the event of seizure pursuant to paragraph (3) or (4) of this subsection, proceedings under subsection (d) of this section shall be instituted promptly. The Government may request the issuance of a warrant authorizing the seizure of property subject to ---------------------------------------- Page Break ---------------------------------------- 65a forfeiture under this section in the same manner as provided for a search warrant under the Federal Rules of Criminal Procedure. Custody of Attorney General (c) Property taken or detained under this section shall not be repleviable, but shall be deemed to be in the custody of the Attorney General, subject only to the orders and decrees of the court or the official having jurisdiction thereof. Whenever property is seized under any of the provisions of this subchapter, the Attorney General may- (1) place the property under seal; (2) remove the property to a place designated by him; or (3) require that the General Services Admin- istration take custody of the property and re- move it, if practicable, to an appropriate location for disposition in accordance with law. Other laws and proceedings applicable (d) The provisions of law relating to the seizure, summary and judicial forfeiture, and condemnation of property for violation of the customs laws; the disposition of such property or the proceeds from the sale thereof; the remission or mitigation of such for- feitures; and the compromise of claims shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under any of the provisions of this subchapter, insofar as applicable and not inconsistent with the provision hereof; except that such duties as are imposed upon the customs officer or any other person with respect to the seizure and forfeiture of ---------------------------------------- Page Break ---------------------------------------- 66a property under the customs laws shall be performed with respect to seizures and. forfeitures of property under this subchapter by such officers, agents, or other persons as may be authorized or designated for that purpose by the Attorney General, except to the extent that such duties arise from seizures and forfei- tures effected by any customs officer. Disposition of forfeited property (e) (1) Whenever property is civilly or criminally forfeited under this subchapter the Attorney General may- (A) retain the property for official use or, in the manner provided with respect to transfers under section_ 1616a of Title 19, transfer the property to any Federal agency or to any State or local law enforcement agency which partici- pated directly in the seizure or forfeiture of the property; (B) except as provided in paragraph (4), sell, by public sale or any other commercially feasible means, any forfeited property which is not re- quired to be destroyed by law and which is not harmful to the public; (C) require that the General Services Admin- istration take custody of the property and dis- pose of it in accordance with law; (D) forward it to the Drug Enforcement Ad- ministration for disposition (including delivery for medical or scientific use to any Federal or State agency under regulations of the Attorney General); or ---------------------------------------- Page Break ---------------------------------------- 67a (E) transfer the forfeited personal property or the proceeds of the sale of any forfeited per- sonal or real property to any foreign country which participated directly or indirectly in the seizure or forfeiture of the property, if such a transfer- (i) has been agreed to by the Secretary of State; (ii) is authorized in an international agreement between the United States and the foreign country; and (iii) is made to a country which, if ap- plicable, has been certified under section 2291 (j) (b) of Title 22. (2) (A) The proceeds from any sale under sub- paragraph (B) of paragraph (1) and any moneys forfeited under this subchapter shall be used to pay- (i) all property expenses of the proceedings for forfeiture and sale including expenses of seizure, maintenance of custody, advertising, and court costs; and (ii) awards of up to $100,000 to any individ- ual who provides original information which leads to the arrest and conviction of a person who kills or kidnaps a Federal drug law enforce- ment agent. Any award paid for information concerning the kill- ing or kidnapping of a Federal drug law enforcement agent, as provided in clause (ii), shall be paid at the discretion of the Attorney General. (B) The Attorney General shall forward to the Treasurer of the United States for deposit in accord- ance with section 524 (c) of Title 28, any amounts of ---------------------------------------- Page Break ---------------------------------------- 68a such moneys and proceeds remaining after payment of the expenses provided in subparagraph (A) except that, with respect to forfeitures conducted by the Postal Service, the Postal Service shall deposit in the Postal Service Fund, under section 2003 (b) (7) of Title 39, such moneys and proceeds. (3) The Attorney General shall assure that any property transferred to a State or local law enforce- ment agency under paragraph (1) (A) - (A) has a value that bears a reasonable rela- tionship to the degree of direct participation of the State or local agency in the law enforcement effort resulting in the forfeiture, taking into ac- count the total value of all property forfeited and the total law enforcement effort with respect to the violation of law on which the forfeiture is based; and (B) will serve to encourage further coopera- tion between the recipient State or local agency and Federal law enforcement agencies. (4) (A) With respect to real property described in subparagraph (B), if the chief executive officer of the State involved submits to the Attorney General a request for purposes of such subparagraph, the au- thority established in such subparagraph is in lieu of the authority etsablished in paragraph (1) (B). (B) In the case of property described in para- graph (1) (B) that is civilly or criminally forfeited under this subchapter, if the property is real prop- erty that is appropriate for use as a public area re- served for recreational or historic purposes or for the preservation of natural conditions, the Attorney Gen- eral, upon the request of the chief executive officer of the State in which the property is located, may trans- ---------------------------------------- Page Break ---------------------------------------- 69a fer title to the property to the State, either without charge or for. a nominal charge, through a legal in- strument providing that- (i) such use will be the principal use of the property; and (ii) title to the property reverts to the United States in the event that the property is used otherwise. Forfeiture and destruction of schedule I or II substances (f) (1) All controlled substances in schedule I and II that are possessed, transferred, sold, or offered for sale in violation of the provisions of this subchap- ter; all dangerous, toxic, or hazardous raw materials or products subject to forfeiture under subsection (a) (2) of this section; and any equipment or con- tainer subject to forfeiture under subsection (a) (2) or (3) of this section which cannot be separated safely from such raw materials or products shall be deemed contraband and seized and summarily for- feited to the United States. Similarly, all substances in schedule I or II, which are seized or come into the possession of the United States, the owners of which are unknown, shall be deemed contraband and sum- marily forfeited to the United States. (2) The Attorney General may direct the destruc- tion of all controlled substances in schedule I or 11 seized for violation of this subchapter; all dangerous, toxic, or hazardous raw materials or products sub- ject to forfeiture under subsection (a) (2) of this section; and any equipment or container subject to forfeiture under subsection (a) (2) or (3) of this section which cannot be separated safely from such ---------------------------------------- Page Break ---------------------------------------- 70a raw materials or products under such circumstances as the Attorney General may deem necessary. Plants (g) (1) All species of plants from which controlled substances in schedules I and II may be derived which have been planted or cultivated in violation of this subchapter, or of which the owners or cul- tivators are unknown, or which are wild growth, may be seized and summarily forfeited to the United States. (2) The failure, upon demand by the Attorney General or his duly authorized agent, of the person in occupancy or in control of land or premises upon which such species of plants are growing or being stored, to produce an appropriate registration, or proof that he is the holder thereof, shall constitute authority for the seizure and forfeiture. (3) The Attorney General, or his duly authorized agent, shall have authority to enter upon any lands, or into any dwelling pursuant to a search warrant, to cut, harvest, carry off, or destroy such plants. Vesting of title in United States (h) All right, title, and interest in property de- scribed in subsection (a) of this section shall vest in the United States upon commission of the act giv- ing rise to forfeiture under this section. Stay of civil forfeiture proceedings (f) The filing of an indictment. or information al- leging a violation of this subchapter or subchapter II of this chapter, or a violation of State or local law that could have been charged under this subchapter ---------------------------------------- Page Break ---------------------------------------- 71a or subchapter II of this chapter, which is also related to a civil forfeiture proceeding under this section shall, upon motion of the United States and for good cause shown, stay the civil forfeiture proceeding. Venue (j) In addition to the venue provided for in sec- tion 1395 of Title 28 or any other provision of law, in the ease of property of a defendant charged with a violation that is the basis for forfeiture of the prop- erty under this section, a proceeding for forfeiture under this section may be brought in the judicial district in which the defendant owning such property is found or in the judicial district in which the crim- nal prosecution is brought. Agreement between Attorney General and Postal Service for performance of functions (l) The functions of the Attorney General under this section shall be carried out by the Postal Service pursuant to such agreement as may be entered into between the Attorney General and the Postal Service. ---------------------------------------- Page Break ---------------------------------------- No. 95-345 and 95-346 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1995 UNITED STATES OF AMERICA, PETITIONER v. GUY JEROME URSERY UNITED STATES OF AMERICA, PETITIONER v. FOUR HUNDRED AND FIVE THOUSAND, EIGHTY-NINE DOLLARS AND TWENTY-THREE CENTS ($405,089.23) IN UNITED STATES CURRENCY, ET AL. ON WRITS OF CERTIORARI TO THE UNITED STATES COURTS OD APPEALS FOR THE SIXTH AND NINTH CIRCUITS BRIEF FOR THE UNITED STATES DREW S. DAYS, III Solicitor General JOHN C. KEENEY Acting Assistant Attorney General MICHAEL R. DREEBEN Deputy Solicitor General MIGUEL A. ESTRADA Assistant to the Solicitor General KATHLEEN A. FELTON JOSEPH DOUGLAS WILSON Attorneys Department of Justice Washington, D.C. 20530 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED 1. In No. 95-345, the question presented is whether the Double Jeopardy Clause of the Fifth Amendment prohibits respondent's criminal prosecution for manu- facturing marijuana because the government ob- tained a consent judgment in a civil action that sought the forfeiture of respondent's property on the ground that it had been used to facilitate drug activities. 2. In No. 95-346, the question presented is whether the Double Jeopardy Clause prohibits a civil proceed- ing for the in rem forfeiture of property alleged to be the proceeds of narcotics and money laundering activities where the owners of the property were prosecuted for, and convicted of, narcotics and money laundering crimes. (I) ---------------------------------------- Page Break ---------------------------------------- II PARTIES TO THE PROCEEDINGS The petitioner in both cases is the United States of America. The respondent in No. 95-345 is Guy Jerome Ursery. The respondents in No. 95-346 are Charles Wesley Arlt. James Wren, Payback Mines, and the property listed in the caption to the final judgment of forfeiture, 95-346 Pet. App. 75a-77a. ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinions below . . . .1 Jurisdiction . . . . 2 Constitutional and statutory provisions involved . . . .2 Statement . . . . 2 Summary of argument . . . . 2 Argument: The parallel criminal convictions and civil in rem forfeitures in these cases did not violate respond- ents' rights under the Double Jeopardy Clause of the Fifth Amendment . . . . 16 A. In rem forfeiture is a civil, remedial sanction that does not implicate the Double Jeopardy Clause's prohibition of multiple prosecutions . . . . B. The courts below misconstrued Halper, and this Court's decisions since Halper, by failing to recognize the limits of this Court's "multiple punishments" cases . . . 26 C. The in rem civil forfeitures in these cases did not impose "punishment" for purposes of the multiple punishments inquiry . . . .36 D. If civil in rem forfeiture amounts to an "of- fense" for which respondents were placed in jeopardy, it is not the "same offense" as the crimes for which they were prosecuted . . . . 50 E. If respondents were "punished" by the in rem civil forfeiture proceedings for the same of- fenses that led to their criminal convictions, that punishment occurred in the "same proceed- ing" as the punishment imposed by the criminal judgments . . . . 54 Conclusion . . . . 59 (III) ---------------------------------------- Page Break ---------------------------------------- Page Break IV TABLE OF AUTHORITIES Cases: Page Abney V. United States, 431 U.S. 651 (1977) . . . . 18 Albernaz V. United States, 450 U.S. 333 (1981) . . . . 50 Allen. V. Illinois, 478 U.S. 364 (1986) . . . . 19 Ashe V. Swenson, 397 U.S. 436 (1970) . . . . 31 Austin V. United States, 113 S. Ct. 2801 (1993) . . . . passim Bell V. Wolfish, 441 U.S. 520 (1979) . . . . 38, 39,42 Benton V. Maryland, 395 U.S. 784 (1969) . . . . 18 Blockburger V. United States, 284 U.S. 299 (1932) . . . . l4, 50,53 Boyd V. United States, 116 U.S. 616 (1886) . . . . . 41 Bozza V. United States, 330 U.S. 160 (1947) . . . . 26 Bradley, In re, 318 U.S. 50 (1943) . . . . 27 Breed V. Jones, 421 U.S. 519 (1975) . . . . 17, 18 Brown V. Ohio, 432 U.S. 161 (1977) . . . . 50, 53 C.J. Hendry Co. V. Moore, 318 U.S. 133 (1943 ).... 21 Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974) . . . . 21, 22-23, 43, 44 Caplin & Drysdale, Chtd. V. United States, 491 U.S. 617 (1989) . . . . 47 Crist v. Bretz, 437 U.S. 28 (1978) . . . . 17 Crosby V. United States, 506 U.S. 255 (1993) . . . . 57 Department of Revenue of Montana V. Kurth Ranch, 114 S. Ct. 1937 (1994) . . . . 9, 10, 25, 31, 33, 34, 39, 42, 45 Dobbins's Distillery V. United States, 96 U.S. 395 (1878) . . . . . 21, 44-45 Grady V. Corbin, 495 U.S. 508 (1990) . . . . 16 Green V. United States, 355 U.S. 184 (1957) . . . . 16, 18 Helvering V. Mitchell, 303 U.S. 391 (1938) . . . . 21, 22, 34 Iannelli V. United States, 420 U.S. 770 (1975) . . . .50 Jeffers v. United States, 432 U.S. 137 (1977 ) . . . . 58 Jones V. Thomas, 491 U.S. 376 (1989) . . . . 27 Justices of Boston Municipal Court V. Lyndon, 466 U.S. 294 (1984) . . . . 56, 57 Kennedy V. Mendoza-Martinez, 372 U.S. 144 (1963) . . . . 11, 19, 20, 23 Kepner V. United States, 195 U.S. 100 (1904) . . . . 17 Kercheval v. United States, 274 U.S. 220 (1927) . .. .36 Lange, Ex parte, 85 U.S. (18 Wall,) 163 (1873) ..11, 26, 27 ---------------------------------------- Page Break ---------------------------------------- V Cases-Continued: Page Missouri V. Hunter, 459 U.S. 359 (1983) . . . . 18, 27, 54 Morris v. Mathews, 475 U.S. 237 (1986) . . . . 41 Murphy v. United States, 272 U.S. 630 `(1926) . . . . 43 North Carolina V. Pearce, 395 U.S. 711 (1969) . . . . 27 Ohio V. Johnson, 467 U.S. 493 (1984) . . . . 56, 57, 59 One Lot Emerald Cut Stones V. United States, 409 U.S. 232 (1972) . . . . 22, 32 One 1958 Plymouth Sedan V. Pennsylvania, 380 U.S. 693 (1965) . . . . 42 Origet V. United States, 125 U.S. 240 (1888 ).... 52 Pennsylvania V. Goldhammer, 474 U.S. 28 (1985) . . . . 28, 55 Price v. Georgia, 398 U.S. 323 (1970) . . . . 18 Republic National Bank V. United States, 506 U.S. 80 (1992) . . . . 45 Rex Trailer Co. V. United States, 350' U.S. 148 (1956) . . . . 48 Richardson V. United States, 468 U.S. 317 (1984 ).. . . 19 SEC V. Bilzerian, 29 F.3d 689 (D.C. Cir. 1994) . . . . 48 Sandin V. Conner, 115 S. Ct. 2293 (1995) . . . . 41 Schiro V. Farley, 114 S. Ct. 783 (1994) . . . . 16 Schmuck V. United States, 489 U.S. 705 (1989 ).... 53 Serfass V. United States, 420 U.S. 377 (1975) . . . . 17, 18, 30 Smith v. United States, No. 95-2259, 1996 WL 72858 (7th Cir. Feb. 21, `1996) . . . . 49 State v. Hickam, 668 A.2d 1321 (Corm. 1995) . . . . 41 Tibbs V. Florida, 457 U.S. 31 (1982) . . . . 16, 18 United States V. Arlt: No. 92-50467, 1994 WL 678535 (9th Cir. Dec. 1, 1994) . . . . 6 41 F.3d 516 (9th Cir. 1994) . . . . 7 United States V. Ball, 163 U.S. 662 (1896) . . . . 19 United States V. Benz, 282 U.S. 304 .(1931) . . . . 28 United States V. Broce, 488 U.S. 563 (1989) . . . . 36 United States V. Cargo of Brig Malek Adhel, 43 U.S. (2 How.) 210 (1844) . . . . 45 United States V. Carson, 52 F.3d 1173 (2d Cir. 1995), cert. denied, No. 95-6929 (Feb. 20, 1996) . . . . 48 United States V. Certain Real Property & Premises . Known as 38 Whalers Cove Drive, 954 F.2d 29 (2d Cir.), cert. denied, 506 U.S. 815 (1992) . . . . 45 ---------------------------------------- Page Break ---------------------------------------- VI Cases-Continued: Page United States v. Chandler, 36 F.3d 3.58 (4th Cir. 1994), cert. denied, 115 S. Ct. 1792 (1995 ).... 44, 52 United States v. Clementi, 70 F.3d 997 (8th Cir. 1995) . . . . 48 United States v. DiFrancesco, 449 U.S. 117 (1980) . . . .27, 28, 55, 57 United States V. Dixon, 113 S. Ct. 2849 (1993 ) . . . .16, 50 United States V. Felix, 503 U.S. 378 (1992) . . . . 60 United States V. Fogel, 829 F.2d 77 (D.C. Cir. 1987) . . . . 55 United States V. Halper, 490 U.S. 435 (1989) . . . . passim United States V. Jorn, 400 U.S. 470 (1971) . . . . 18, 36 United States V. La Franca, 282 U.S. 568 (1931 ).... 21 United States v. Martin Linen Supply Co., 430 U.S. 564 (1977) . . . . 18, 28 United States V. Millan, 2 F.3d 17 (2d Cir. 1993), cert. denied, 114 S. Ct. 922 (1994) . . . . 4, 8, 55 United States V. 98.44 South Titan Cow-t, No. 94- 1285, 1996 WL 49002 (10th Cir. Feb. 5, 1996) . . . . 48-49 United States V. 92 Buena Vista Ave., 113 S. Ct. 1126 (1993) . . . . 20-21, 47 United States V. One Assortment of 89 Firearms, 465 U.S. 354 (1984) 8, 11, 23, 24, 32, 43 United States v. $184,505,01, 72 F.3d 1160 (3d Cir. 1995) . . . . 48 United States V. 141st Street Corp., 911 F.2d 870 (2d Cir. 1990), cert. denied, 498 U.S. 1109 (1991) . . . . 44 United States V. One 1983 Homemade Vessel Named "Barracuda", 858 F.2d 643 (11th Cir. 1988) . . . . 44 United States V. One 1978 Piper Cherokee Air- craft, 37 F.3d 489 (9th Cir. 1994) . . . . 52 United States V. One Single Family Residence, 13 F.3d 1493 (11th Cir. 1994) . . . . 8, 55 United States V. Sub-no, 481 U.S. 739 (1987) . 38 United States V. Salinas, 65 F.3d 551 (6th Cir. 1995) . . . . 48 United States V. Scott, 437 U.S. 82 (1978) .16, 19,57,59 United States V. Smith, No. 95-1568, 1996 WL 34552 (8th Cir. Jan. 31, 1996) . . . . 55, 58 ---------------------------------------- Page Break ---------------------------------------- VII Cases-continued: Page United States V. Tilley, 18 F.3d 295 (5th Cir.), cert. denied, 115 S. Ct. 573, 574 (1994) . . . . 47, 48 United States V. United States Coin & Currency, 401 Us. 715 (1971) . . . . 41-42 United States v. Universal C.I.T. Credit. Corp., 344 U.S. 218 (1952) . . . . 53 United States v. Ward, 448 U.S. 242 (1980) . . . . 20, 23 United States V. Wilson, 420 U.S. 332 (1975) . . . . 16 United States V. Woodward, 469 U.S. 105 (1985).. . . 53 United States V. Wren, No. 92-50467, 1994 WL 678535 (9th Cir. Dec. 1, 1994) . . . . 7 United States ex rel. Marcus V. Hess, 317 U.S. 537 (1943) . . . . l7, 43, 45 Van Oster v. Kansas, 272 U.S. 465 (1926) . . . . 23, 44 Various Items of Personal Property V. United States, 282 U.S. 577 (1931) - . . . . 21, 22 Witte V. United State-s, 115 S. Ct. 2199 (1995) . ...34, 35, 50 Wong Wing v. United States, 163 U.S. 228 (1896).. . . 19 Constitution and statutes: U.S. Const.: Amend. IV . . . . 42, 47 Amend. V (Double Jeopardy Clause) . . . . passim Amend. VIII (Excessive Fines Clause) . . . . 9, 13, 25, 32, 33, 39, 40, 43, 45 False Claims Act, 31 U.S.C. 3729-3731 (1982 ).... 29 Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213 . . . . 23 18 U.S.C. 287 (1982) . . . . 28 18 U.S.C. 371 . . . . 2, 6, 51 18 U.S.C. 981 . . . . 2, 8 18 U.S.C. 981 (a) (1) (A) . . . . 7, 51 18 U.S.C. 982 . . . . 56 18 U.S.C. 1956 . . . . 2, 6, 51 18 U.S.C. 3554 . . . . 56 21 U.S.C. 841 . . . .2 21 U.S.C. 841 (a) (1) . . . . 2, 3, 51 21 U.S.C. 846 . . . . 6, 51 21 U.S.C. 853 . . . . 56 21 U.S.C. 881 . . . . 2 ---------------------------------------- Page Break ---------------------------------------- VIII Constitution and statutes Continued: Page 21 U.S.C. 881 (a) (4) . . . . . 32, 39, 44 21 U.S.C. 881 (a) (6) . . . . 7, 8, 15, 51, 52 21 U.S.C. 881 (a) (7) . . . . 3, 15, 32, 39, 44, 51, 52 Miscellaneous: S. Rep. No. 225, 98th Cong., 1st Sess. (1983 ) .... 44 U.S. Dep't of Justice, Compilation of Selected Fed- eral Asset Forfeiture Statutes (Aug. 1996) . . . . 56 ---------------------------------------- Page Break ---------------------------------------- OCTOBER TERM, 1995 No. 95-345 UNITED STATES OF AMERICA, PETITIONER' v. GUY JEROME URSERY No. 95-346 UNITED STATES OF AMERICA PETITIONER v. FOUR HUNDRED AND FIVE THOUSAND, EIGHTY-NINE DOLLARS AND TWENTY-THREE CENTS ($405,089.23) IN UNITED STATES CURRENCY, ET AL. ON WRITS OF CERTIORARI TO THE UNITED STATES COURTS OF APPEALS FOR THE SIXTH AND NINTH CIRCUITS BRIEF FOR THE UNITED STATES OPINIONS BELOW The opinion of the court of appeals in No. 95-345 (95-345 Pet. App. 1a-27a) is reported at 59 F.3d 568. The order of the district court rejecting respond- ent's double jeopardy claim (95-345 Pet. App. 38a- 41a) is not reported. The opinion of the court of ap- (1) ---------------------------------------- Page Break ---------------------------------------- 2 peals in No. 95-346 (95-346 Pet. App. 1a-23a) is reported at 33 F.3d 1210. An order amending that opinion (95-346 Pet. App. 24a-25a) is reported at 56 F.3d 41. JURISDICTION The judgment of the court of appeals in No. 95- 345 was entered on July 13, 1995. The judgment of the court of appeals in No. 95-346 was entered on September 6, 1994. A petition for rehearing was de- nied in No. 95-346, and the opinion was amended, on May 30, 1995. 95-346 Pet. App. 24a-29a. Petitions for writs of certiorari were filed in both cases on August 28, 1995, and were granted by the Court on January 12, 1996 (J.A. 81a-82a). The jurisdiction of this Court rests on 28 U.S.C. 1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Double Jeopardy Clause of the Fifth Amend- ment to the Constitution provides: "[N] or shall any person be subject for the same offence to be twice put in jeopardy of life or limb." The provisions of 18 U.S.C. 371, 981, and 1956 and 21 U.S.C. 841, 846, and 881 are reproduced in the appendices to the peti- tions for certiorari. STATEMENT 1. No. 95-345. After a jury trial in the United States District Court for the Eastern District of Michigan, respondent was convicted of manufactur- ing marijuana, in violation of 21 U.S.C. 841 (a) (1). He was sentenced to 63 months' imprisonment, to be followed by four years' supervised release. The court of appeals reversed his conviction. Pet. App. 1a-27a. ---------------------------------------- Page Break ---------------------------------------- 3 a., On July 30, 1992, Michigan State Police exe- cuted a search warrant and found 142 marijuana plants growing on land just outside the boundaries of respondent's property in Perry, Michigan. Pet. App. 2a. Inside respondent's house, the officers found marijuana seeds, stems, and stalks, two loaded fire- arms, and a growlight. Ibid. While investigating that crime, law enforcement officers learned that re- spondent had been growing marijuana on his prop- erty and the land adjoining it for at least three years. During that period, respondent, his wife, and his son would harvest the marijuana, bring it back to re- spondent's house, and hang it in a crawlspace to dry. J.A. 44-56,65-66. b. On September 30, 1992, the government filed an in rem complaint seeking forfeiture of respond- ent's property under 21 U.S.C. 881 (a) (7). Pet. App. 28a-31a. The complaint alleged that, "[f ] or several years, the defendant real property was used or in- tended to be used to facilitate the unlawful processing and distribution of a controlled substance." Id. at 29a. Respondent and his wife filed a claim to the property and an answer to the forfeiture complaint. Subsequently, on May 24, 1993, respondent and his wife settled the forfeiture action by agreeing to pay $13,250 in lieu of the forfeiture of the property. Id. at 32a-37a. c. In the meantime, on February 5, 1993, a grind jury returned an indictment charging respondent with a single count of manufacturing marijuana, in violation of 21 U. S. Cl. 841 (a) (1). Pet. App. 3a. The indictment charged that the manufacturing offense occurred on July 30, 1992, the date on which Mich- igan State Police searched respondent's property. Respondent was not indicted for narcotics possession ---------------------------------------- Page Break ---------------------------------------- 4 or distribution offenses, nor was he charged with any other criminal offense on the basis of his unlawful activities in the years leading up to the search. After his conviction on the manufacturing charge, respond- ent moved to dismiss the indictment on the ground that the Double Jeopardy Clause barred his criminal conviction following the civil forfeiture of his prop- erty. The district court denied the motion, finding that the forfeiture proceeding was not an "adjudica- tion" because it was settled by a consent judgment and that "the forfeiture proceeding and criminal con- viction were `part of a single, coordinated prosecution of [a] person involved in alleged criminal activity.' " Id. at 39a (quoting United States v. Millan, 2 F.3d 17, 20 (2d Cir. 1993), cert. denied, 114 S. Ct. 922 (1994)). d. A divided panel of the Sixth Circuit reversed. Pet. App. 1a-27a. The majority first found that "jeopardy" had attached in the civil forfeiture pro- ceeding because the "consent judgment in [the] civil forfeiture action is analogous to a guilty plea entered pursuant to a plea agreement in a criminal case." Id. at 6a. The court concluded that, because jeopardy attaches in a criminal case when the trial court ac- cepts the defendant's plea, "[j]eopardy attached in a nontrial forfeiture proceeding when the court accepts the stipulation of forfeiture." Id. at 7a. Relying on United States v. Halper, 490 U.S. 435 (1989), and Austin v. United States, 113 S. CT. 2801 (1993), the court next concluded that "any civil for- feiture under 21 U.S.C. 881 (a) (7) constitutes pun- ishment for double jeopardy purposes." Pet. App. 11a. The court then rejected the government's argu- ment that respondent's criminal conviction and the civil forfeiture of his property did not constitute pun- ---------------------------------------- Page Break ---------------------------------------- 5 ishment for the "same offence" within the meaning of the Double Jeopardy Clause. The court explained that "the forfeiture necessarily requires proof of the criminal offense. * * * The criminal offense" is in essence subsumed by the forfeiture statute and thus does not require an element of proof that is not re- quired by the forfeiture action." Id. at 12a. Finally, the court acknowledged that the government may impose multiple punishments for the same offense in a single proceeding, but it declined to find that the parallel civil forfeiture and criminal actions con- stituted a "single, coordinated proceeding" for double jeopardy purposes, because the actions proceeded be- fore different judges and because there was no com- munication between the government lawyers assigned to the civil and criminal efforts. Id. at 13a-17a. Judge Milburn dissented. Pet. App. 19a-27a. In his view, the question whether parallel criminal and civil actions are a "single proceeding" for double jeopardy purposes should turn on "the timing of the civil and criminal proceedings and the potential for government abuse of those proceedings." Id. at 22a. That approach, he argued, "avoids the inevitable diffi- culty of a case-by-case comparison of the level of coordination" between the civil and criminal actions. Ibid. Because the "government was not acting to pursue a second punishment out of dissatisfaction with the first outcome" and the civil and criminal actions were active during the same time frame, he concluded that those actions were a single double jeopardy proceeding. Id. at 22a, 25a. 1 . ___________________(footnotes) 1 Judge Milburn also rejected the majority's conclusion that the civil and criminal actions imposed punishment for the "same offence." He noted that the civil forfeiture complaint ---------------------------------------- Page Break ---------------------------------------- 6 2. No. 95-346. In this civil forfeiture action, the district court granted summary judgment to the United States and ordered the forfeiture of United States currency, a helicopter, a boat, an airplane, 138 silver bars, and 11 automobiles. The court of appeals reversed. Pet. App. 1a-23a. a. Respondents Wren and Arlt participated in a massive conspiracy to manufacture methamphetamine. Respondents and others purchased large quantities of precursor chemicals and delivered them to meth- amphetamine manufacturers. Respondent Wren not only ordered large quantities of the chemicals, but, with another conspirator, also "transported hundreds of thousands of dollars in cash to pay for" them. Respondent Arlt aided and abetted the manufacture of methamphetamine, and hired others to transport the drugs and to act as intermediaries with Mexican traffickers. See United States v. Arlt, No. 92-50467, 1994 WL 678535 (9th Cir. Dec. 1, 1994). On June 12, 1991, a grand jury returned a super- seding indictment charging Arlt, Wren, and five others with conspiracy to aid and abet the manu- facture of methamphetamine, in violation of 21 U.S.C. 846. The indictment also charged Arlt and Wren with conspiracy to launder monetary instru- ments, in violation of 18 U.S.C. 371, and Arlt was charged with 17 counts, and Wren with 13 counts, of money laundering, in violation of 18 U. S. Cl. 1956. Pet. App. 79a-105a. On March 27, 1992, after a jury trial, Arlt and Wren were convicted on all counts. The district court sentenced Arlt to life imprison- __________________(footnotes) charged that the defendant property had been used to grow marijuana "for several years," but that the indictment charged an offense occurring on a single day. Pet. App. 26a-27a. ---------------------------------------- Page Break ---------------------------------------- 7 ment and a ten-year term of supervised release, and imposed a fine of $250,000. Id. at 106a-108a. Wren was sentenced to life imprisonment and a five-year term of supervised release. Id. at 109a-111a.2 b. On June 17, 1991, five days after the return of the superseding indictment, the government filed an in rem complaint seeking forfeiture under 21 U.S.C. 881 (a) (6) and 18 U.S.C. 981 (a) (1) (A) of currency, cars, vessels, silver bars, and aircraft seized from or titled to Arlt, Wren, or Payback Mines, a corporation controlled by Arlt. Pet. App. 30a-49a. Wren, Arlt, and Payback Mines filed claims to the defendant properties. By agreement of the parties, litigation of the forfeiture action was deferred during the pendency of the criminal prosecution. Id. at 50a- 52a. After respondents' criminal convictions, the govern- ment sought summary judgment in the forfeiture case, contending that the defendant assets were the proceeds of illegal narcotics trafficking and, alter- natively, were "involved in," or "traceable to" prop- erties involved in, money laundering. The district court granted the government's motion. The court found that all of the assets were subject to for- feiture as proceeds of illegal narcotics activity. In 2 On December 1, 1994, the Ninth Circuit reversed Arlt's conviction on the ground that he was improperly denied his right to self-representation, and remanded for a new trial. See United States V. Arlt, 41 F.3d 516. That decision did not affect Wren's conviction, the only other claimant who was criminally prosecuted. Wren's conviction was affirmed by the same panel in an unpublished order, but (on the govern- ment's cross-appeal) the panel vacated his sentence and remanded for resentencing. See United States V. Wren, No. 92-50467, 1994 WL 678535 (Dec. 1, 1994). ---------------------------------------- Page Break ---------------------------------------- 8 the alternative, the court held that, except for the silver bars, the defendant property was subject to forfeiture under the money laundering theory. Pet. App. 53a-74a. c. The Ninth Circuit reversed the forfeiture judg- ment. Pet. App. 1a-23a. The court held that the forfeiture of Wren's and Arlt's property constituted punishment for the same offenses that had formed the basis for their criminal convictions and thus that the forfeiture judgment imposed an impermissible second punishment, in violation of the Double Jeopardy Clause. First, the court held that the civil forfeiture and criminal prosecutions constituted "separate pro- ceedings" for double jeopardy purposes. Id. at 7a. Although the court acknowledged that two other cir- cuits had come to the opposite conclusion, id. at 8a (citing United States v. Millan, 2 F.3d at 20; United States v. One Single Family Residence, 13 F.3d 1493, 1499 (11th Cir. 1994)), it found that "[a] forfeiture case and a criminal prosecution would constitute the same proceeding only if they were brought in the same indictment and tried at the same time." Pet. App. 8a. The court further found that civil forfeiture under 21 U.S.C. 881 (a) (6) and 18 U.S.C. 981 invariably constitutes punishment. The court recognized that, under United States v. One Assortment of 89 Fire- arms, 465 U.S. 354 (1984), it was "clear that civil forfeitures did not constitute `punishment' for double jeopardy purposes." Pet. App. 13a. The panel con- cluded, however, that this Court "changed its collec- tive mind" (ibid.) in United States v. Halper, 490 U.S. 435 (1989), by holding that certain civil pro- ceedings can result in punishment for purposes of ---------------------------------------- Page Break ---------------------------------------- 9 the Double Jeopardy Clause's prohibition on multiple punishments. The panel found confirmation for that conclusion in Austin v. United States, 113 S. Ct. 2801 (1993), which held that civil forfeitures of property used to facilitate a drug crime should be considered "punishment" for purposes of determining the threshold applicability of the Excessive Fines Clause of the Eighth Amendment. The panel found that "the only fair reading" of Austin is that all civil forfeitures must be deemed "punishment" not only under the Eighth Amendment, but also under the Double Jeopardy Clause. Pet. App. 15a. d. The government sought rehearing and sug- gested rehearing en bane, which the court of appeals denied. In denying rehearing, the panel amended its opinion to note (Pet. App. 25a) that its categorical approach was also "compelled" by Department of Revenue of Montana v. Kurth Ranch, 114 S. Ct. -1937 (1994), a case decided before the panel's decision, but not cited in its original opinion. The panel ex- plained that Kurth Ranch "applied Austin's categor- ical approach for determining when punishment has been imposed in a Double Jeopardy case arising pur- suant to a statute that taxed drug monies." Pet. App. 25a. Seven judges dissented from the denial of rehearing en bane. Pet. App. 25a-29a. Writing for the dissent- ers, Judge Rymer disputed the panel's conclusion that forfeiting the proceeds of unlawful activity is "pun- ishment." Id. at 27a. She also noted that the panel's categorical approach to punishment questions "writes 89 Firearms off the books" by citing Halper and Austin "out of context and surmising that `the Court changed its collective mind' * * * despite the fact that ---------------------------------------- Page Break ---------------------------------------- 10 the Court itself didn't say that it had." Ibid. Judge Rymer also rejected the panel's view that Kurth Ranch should be read to support a "categorical" ap- proach to the forfeiture of proceeds, noting that "Kurth Ranch was a double jeopardy case * * * that was decided after Austin, yet mentioned Austin only in passing and then only as holding that a civil forfeiture may violate the Eighth Amendment's pro- scription against excessive fines." Id. at 29a n.3 (citing Kurth Ranch, 114 S. Ct. at 1945). SUMMARY OF ARGUMENT The courts below concluded that under United States v. Halper, 490 U.S. 435 (1989), and this Court's decisions since Halper, each respondent was twice punished, in violation of the Double Jeopardy Clause of the Fifth Amendment. Each court, view- ing the second "punishment" as having resulted from an impermissible second "proceeding" against re- spondents, ordered the second "proceeding" (the for- feiture in $405,089.23 and the criminal conviction in Ursery) dismissed in its entirety. That analysis is erroneous for several independent reasons. A. The core protection of the Double Jeopardy Clause is the prohibition against prosecuting a de- fendant more than once for the same offense. That protection is triggered only when a defendant is placed "in jeopardy." This Court's cases have defined that phrase to denote the risk of conviction that a defendant faces before a tribunal vested with juris- diction to find him guilty of a crime. That under- standing of "jeopardy" flows from the unique role and consequences of criminal sanctions in our society. ---------------------------------------- Page Break ---------------------------------------- 11 It also accords with the Clause's historical origins in common-law pleas peculiar to the criminal process. In rare cases, that core protection against suc- cessive prosecutions may be relevant when the gov- ernment invokes a purportedly civil statute that is so pervasively punitive that due process requires that its sanctions be enforced only after a criminal trial. E.g., Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). In such a rare case, the application of the purportedly civil sanction could be said to place the defendant "in jeopardy." But that limited principle does not help respondents in these cases, because this Court has long held that in rem forfeitures pursuant to civil statutes are not so punitive that they may be enforced only with the safeguards of a criminal trial. The Court most recently reaffirmed that view in United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984), in which it unanimously re- jected the double jeopardy claim of a property owner who had been tried for and acquitted of the criminal offenses underlying the forfeiture. In light of 89 Firearms, respondents have no double jeopardy claim that they have been subjected to multiple prosecutions. B. The courts below relied principally on the mul- tiple punishments strand of double jeopardy law, which they believed was effectively revolutionized by this Court's decision in Halper. That conclusion re- flects a grave misunderstanding of the scope of the prohibition of multiple punishments as. applied... in Halper. That doctrine, which originated with Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873), pro- tects two distinct interests of a criminal defendant. The first is that a court may not impose a greater sentence than the legislature authorized. The second is that a court may not increase a defendant's sen- ---------------------------------------- Page Break ---------------------------------------- 12 tence if to do so would disturb his legitimate ex- pectation of finality in a criminal judgment. In either event, the protection against multiple punish- ments is a consequence of the defendant's having been placed `(in jeopardy," and then convicted of a crime. Halper involved the second aspect of the "multiple punishments" doctrine-the protection of a defend- ant's legitimate expectation of finality in a criminal judgment. In that case, the government sought what the Court viewed as a punitive civil fine after the defendant's criminal sentence had become final. In rejecting that attempt, the Court did not rely on any view that the civil action was an impermissible second prosecution for the offense. Nor did it reject its prec- edents dealing with whether a nominally "civil" rem- edy in fact constituted a "criminal" sanction. The Court concluded only that a defendant's legitimate expectation of finality in his sentence, can, in a "rare case," be upset when the government seeks to inflict additional punishment in a civil proceeding. In such a case, the "multiple punishments" doctrine does not bar the second (civil) proceeding, but only so much of the penalty sought as would constitute an addi- tional sentence. Halper and the "multiple punishments" doctrine it invoked therefore are relevant only when the gov- ernment can fairly be said to be seeking, in a pro- ceeding commenced after a criminal judgment has become final and unappealable, to increase the sen- tence reflected in that judgment. Because respondent Ursery entered into a consent judgment of civil for- feiture before he was placed "in jeopardy," that doc- trine cannot help him. C. The respondents in $405,089.23 were placed "in jeopardy," and convicted in a criminal case, be- ---------------------------------------- Page Break ---------------------------------------- 13 fore entry of the civil judgment forfeiting the pro- ceeds of their crimes. They cannot demonstrate, how- ever, that the civil judgment forfeiting the proceeds of their. narcotics trafficking should be viewed as a "punishment" under this Court's double jeopardy cases. Nor would respondent Ursery be able to dem- onstrate that the forfeiture of his property used to facilitate drug offenses constitutes "punishment." In concluding that civil forfeitures always impose "punishment," both courts below relied principally on Austin v. United States, 113 S. Ct. 2801 (1993). Austin, however, held only that the forfeiture of property used to facilitate drug offenses is sufficiently punitive to be subject to analysis under the Eighth Amendment's prohibition against excessive fines. Aus- in relied on language in Halper for a broad defini- tion of "punishment"-a definition that could include any sanction that serves partly as a deterrent. Austin also relied on the Court's view that, as a historical matter, forfeiture of property used to commit crimes has always been considered punitive, at least "in part." Austin's analysis is inapplicable here. The civil in rem forfeiture of instrumentalities of crime has been a fixture of our law since the Nation's earliest years. Even if understood as partly punitive, those civil laws have never been thought so intrin- sically punitive, as a categorical matter, as to trigger double jeopardy scrutiny. The holding of Halper re- quires a case-by-case inquiry into the character of the actual sanctions imposed in a particular case as a prerequisite for multiple punishments protection. A categorical application of that protection based on the potential that a forfeiture statute may produce a punitive judgment is inconsistent with Halper's holding. ---------------------------------------- Page Break ---------------------------------------- 14 Forfeitures of facilitating property should there- fore be examined in accordance with the case-by-case approach adopted in Halper. Under that approach, a forfeiture of property that facilitated a drug offense should be found remedial if it can rationally be ex- plained as serving the traditional remedial justifica- tions for that in rem remedy: encouraging owners to take care in the use of their property; abating a nuisance; and providing recompense to the govern- ment for the law enforcement costs and social harms of drug trafficking. That is the case here with re- spect to respondent Ursery's property. Even if the forfeiture of "facilitating" property were found generally to impose punishment for double jeopardy purposes, the forfeiture of "proceeds" of narcotics trafficking should not be found punitive. Statutes providing for forfeiture of proceeds of criminal activity do not share the historical pedigree of other in rem forfeitures, on which Austin relied, but were first adopted within the last 20 years to ensure that criminal activity is not profitable. Those statutes therefore simply prevent unjust enrichment, a plainly remedial, rather than punitive, goal. D. Even if civil forfeiture amounts to an "offense" that triggers double jeopardy protections, the "of- fense" punished in the forfeiture proceedings at issue here is not the "same offense" as any of those of which respondents were convicted. A straightforward application of the "statutory elements" test of Block- burger v. United States, 284 U.S. 299 (1932), com- pels that conclusion. Each of the forfeiture statutes requires proof of a fact that the criminal statutes do not require, to wit, that the defendant property played some role in the commission of a crime. Conversely, each of the criminal statutes requires proof of at ---------------------------------------- Page Break ---------------------------------------- 15 least one element not found in the forfeiture statutes, to wit, the property owner's knowing commission of a crime. Indeed, because the government may obtain forfeiture under 21 U.S.C. 881 (a) (6) and (7) of property that was merely "intended" for use in a drug offense, forfeiture under those subsections may occur even if no crime actually was committed by anyone. E. Finally, even if the forfeitures in these cases constitute "punishment" for the offenses of which the claimants were convicted, the civil and criminal sanc- tions should be regarded as part of a single proceed- ing for purposes of the Double Jeopardy Clause. The issue whether a "proceeding" is impermissible suc- cessive for constitutional purposes does not turn on formalities such as whether it bears a new docket number, is heard by a new judge, or is handled by a new government lawyer. Those factors are present in many government sentencing appeals; yet, they do not make the appeal a new "proceeding" at which punishment is improperly increased. Rather, be- cause the "multiple punishments" doctrine protects a legitimate expectation of finality in a criminal sen- tence, a proceeding is impermissible successive only when it is commenced after the defendant acquires a legitimate expectation that further punishment will not be imposed, It is then that Halper's underlying concern-to prevent the government from seeking a new punishment because it is dissatisfied with the defendant's sentence -comes into play. That concern is inapplicable in these cases, because the govern- ment's conduct reveals a design to seek the authorized civil and criminal sanctions in parallel and contem- poraneous proceedings. ---------------------------------------- Page Break ---------------------------------------- 16 ARGUMENT THE PARALLEL CRIMINAL CONVICTIONS AND CIVIL IN REM FORFEITURES IN THESE CASES DID NOT VIOLATE RESPONDENTS' RIGHTS UNDER THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT A. In Rem Forfeiture Is A Civil, Remedial Sanction That Does Not Implicate The Double Jeopardy Clause's prohibition Of Multiple Prosecutions 1. The Double Jeopardy Clause provides that no "person [shall] be subject for the same offence to be twice put in jeopardy of life or limb." That Clause "had its origin in the three common-law pleas of autrefois acquit, autrefois convict, and pardon)" which "prevented the retrial of a person who had previously been acquitted, convicted, or pardoned for the same offense." United States v. Scott, 437 U.S. 82, 87 (1978) ; see also United States v. Wilson, 420 U.S. 332, 340-342 (1975) ; accord Grady v. Corbin, 495 U.S. 508, 530 (1990) (Scalia, J., dissenting), overruled by United States v. Dixon, 113 S. Ct. 2849 (1993); Green v. United States, 355 U.S. 184, 200 (1957) (Frankfurter, J., dissenting), The "core * * * are a protected" by the Clause (United States v. Scott, 437 U.S. at 96) accordingly has always been the defendant's right not to be tried for a criminal charge more than once. United States v. Wilson, 420 U.S. at 343; see Schiro v. Farley, 114 S. Ct. 783, 789 (1994) (" [O]ur cases establish that the primary evil to be guarded against is successive prosecutions: `The prohibition against multiple trials is the controlling constitutional principle'" ) (internal brackets and citations omitted) ; see also Tibbs v. Florida, 457 U.S. 31, 41 (1982) ; United States v. Dixon, 113 S. Ct. at ---------------------------------------- Page Break ---------------------------------------- 17 2882 (Souter, J., concurring in the judgment in part and dissenting in part). As the language of the Clause requires, its protec- tion depends upon the defendant being placed "in jeopardy." See, e.g., Serfass v. United States, 420 U.S. 377, 388, 390-391 (1975). This Court has inter- preted that requirement, in light of its history, as being met only by the dangers associated with the actual trial of a criminal case: "Jeopardy denotes risk, In the constitutional sense, jeopardy describes the risk that is traditionally associated with a crim- inal prosecution." Breed v. Jones, 421 U.S. 519, 528 (1975); see Serfass v. United States, 420 U.S. at 391 ("Both the history of the Double Jeopardy Clause and its terms demonstrate that it doss not come into play until a proceeding begins before a trier `having juris- diction to try the question of the guilt or innocence of the accused'") (quoting Kepner v. United States, 195 U.S. 100, 133 (1904) ); Crist v. Bretz, 437 U.S. 28, 34-36 (1978) ("jeopardy" concept protects ac- cused from repeated attempts "to convict," safeguards his right to have his trial completed by a particular tribunal, and therefore has "roots deep in the his- toric development of trial by jury in the Anglo- American system of criminal justice"); United States ex rel. Marcus v. Hess, 317 U.S. 537, 548-549 (1943) (" `jeopardy' within the constitutional mean- ing" refers to the risks associated with "actions in- tended to authorize criminal punishment to vindicate public justice"). The reasons for that focus are rooted in the unique role and consequences of criminal sanctions in our society. A conviction represents the societal judgment that a person is a "criminal" and subjects that per- son to stigma that is unmatched by any other asser- ---------------------------------------- Page Break ---------------------------------------- 18 tion of governmental power. See Breed v. Jones, 421 U.S. at 530; see also Price v. Georgia, 398 U.S. 323, 331 n.10 (1970). Each such judgment typically has long-lasting collateral consequences both in the juris- diction in which the conviction is obtained and in others. See Benton v. Maryland, 395 U.S. 784, 790 (1969 ) ; Missouri v. Hunter, 459 U.S. 359, 372 (1983) (Marshall, J., dissenting). Because a crim- inal prosecution "is an ordeal not to be viewed lightly," Price v. Georgia, 398 U.S. at 331, the funda- mental notion of the Double Jeopardy Clause is that the government should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, ex- pense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he maybe found guilty. Green v. United States, 355 U.S. at 187-188; Serfs.ss v. United States, 420 U.S. at 388; see also Tibbs v. Florida, 457 U.S. at 41 ("Repeated prosecutorial sal- lies would unfairly burden the defendant and create a risk of conviction through sheer governmental per- severance"). Thus, as a general matter, "[s]ociety's awareness of the heavy personal strain which a crim- inal trial represents for the individual defendant is manifested in the willingness to limit the Government to a single criminal proceeding to vindicate its very vital interest in the enforcement of criminal laws." United States v. Martin Linen Supply Co., 430 U.S. 564, 569 (1977) (quoting United States v. Jam, 400 U.S. 470, 479 (1971) (plurality opinion of Harlan, J.) ); see Abney v. United States, 431 U.S. 651, 661 (1977). ---------------------------------------- Page Break ---------------------------------------- 19 2. Most cases arising under the "multiple prosecu- tions" doctrine do not require the characterization of the nature of the proceedings, because there is rarely any doubt that the government seeks a second crim- inal trial, Instead, those cases primarily involve the question whether. the second trial falls within an ex- ception to the multiple prosecutions prohibition. See, e.g., Richardson v. United States, 468 U.S. 317, 323- 326 (1984 ) (permissible to retry defendant when first trial ends with a hung jury) ; United States v. Scott, 437 U.S. at 98-101 (permissible to retry de- fendant when first trial was erroneously terminated at his behest on grounds unrelated to factual guilt) ; United States v. "Ball, 163 U.S. 662, 671-672 (1896) (retrial permitted after conviction is reversed on appeal). Nonetheless, the Court has recognized that a civil statute may be so stigmatizing and punitive in all of its applications that it effectively operates as a criminal sanction. In that setting, the nominally civil sanction is properly characterized as criminal in effect, and such a state cannot be invoked at all without complying with the safeguards that the Con- stitution requires for criminal trials. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 184-186 (1963) (invalidating a statute that prescribed, without a criminal trial, loss of citizenship for any person who, to evade military service, remained outside the United States in time of war) ; Wong Wing v. Urnited States, 163 U.S. 228, 235-238 (1896) (invalidating a statute that provided, without a criminal trial, for aliens to be confined at hard labor for one year before being deported); compare Allen v. Illinois, 478 U.S. 364, 368-369 (1986) (upholding statute that provided for involuntary civil commitment of "sexually dangerous ---------------------------------------- Page Break ---------------------------------------- 20 persons") ; United States v. Ward, 448 U.S. 242, 248-251 (1980 ) (upholding statute that imposed `civil penalties on parties responsible for the discharge of hazardous substances).3 If the government were to invoke such a pervas- ively penal civil statute against a person who already has been criminally tried for the same offense, it would effectively place him "twice in jeopardy," in violation of the Fifth Amendment. Civil forfeiture statutes, however, have never been viewed as having that effect. This Court has often rejected the claim that statutes providing for the in rem civil forfeiture of property are so punitive that they may only be enforced after a criminal trial, or that they place a property owner "in jeopardy." Indeed, because laws authorizing the in rem civil forfeiture of property involved in criminal activity-from violations of cus- toms and imposts laws to piracy-were among the earliest statutes enacted by Congress, see United ___________________(footnotes) 3 In Kennedy v. Mendoza-Martinez, the Court identified several factors that, though "neither exhaustive nor disposi- tive" (United States v. Ward, 448 U.S. at 249), provide use- ful guideposts in determining whether particular statutory sanctions are so punitive that they may be imposed only after a criminal prosecution (372 U.S. at 168-169) (footnotes omitted): Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a find- ing of scienter, whether its operation will promote the traditional aims of punishment-retribution and deter- rence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry. ---------------------------------------- Page Break ---------------------------------------- 21 States v. 92 Buena Vista Ave., -113 S. Ct. 1126, 1131- .1132 (1993) (plurality opinion of Stevens, J.); see also C.J. Hendry Co. V. Moore, 318 U.S. 133, 139 (1943); Calero-Toledo v. Pearson Yacht-Leasing Co., 416 U.S. 663, 683 (1974), they repeatedly "have been upheld against the. contention that they are essen- tially criminal and subject to the procedural rules governing criminal prosecutions." Helvering v. Mit- chell, 303 U.S. 391, 400 (1938 ). Thus, in Various Items of Personal Property v. United States, 282 U.S. ,577 (1931), the Court un- animously rejected the contention that the prior con- viction of property owners `for defrauding the gov- ernment of liquor taxes barred the forfeiture of property-a distillery, a warehouse, and a denatur- ing plant-used in the commission of the fraud. Id. at 580. The Court reasoned that the forfeiture was an in rem civil proceeding against the property, rather than "a criminal prosecution [in which] it is the wrongdoer in person who is proceeded against, convicted and punished." Id. at 581. The Court ac- cordingly concluded that "[t] he forfeiture is no part of the punishment for the criminal offense," and that "[t]he provision of the Fifth Amendment to the Constitution in respect of double jeopardy does not apply." Ibid.; see also Dobbins's Distillery v. United States, 96 U.S. 395, 403-404 (1878 ).4 Seven years ___________________(footnotes) 4 Various Items was decided on the same day as United States V. La Franca, 282 U.S. 568 (1931). "In that case, the Court, to avoid a constitutional issue, unanimously construed a statute that authorized a civil action to recover certain taxes, which the Court viewed as penalties, as not permitting such recovery after conviction of the defendant for a criminal offense arising from the same transactions. Justice Suther- land, who wrote for the Court in both cases, after adverting ---------------------------------------- Page Break ---------------------------------------- 22 later, the Court decided Helvering v. Mitchell, supra, which presented the question whether a proceeding to collect an income tax deficiency and a 50 % penalty for fraud was "essentially criminal." 303 U.S. at 400. In rejecting that claim, the Court explained that, "[i]n spite of their comparative severity," customs forfeitures had been held "enforcible by civil proceedings," ibid., and that tax penalties are likewise "remedial" sanctions because "[t]hey are provided primarily as a safeguard for the protection of the revenue and to reimburse the Government for the heavy expense of investigation and the loss re- sulting from the taxpayer's fraud," id. at 401. More recently, in One Lot Emerald Cut Stones v. United States, 409 U.S. 232 (1972) (per curiam), the Court rejected the notion that the Double Jeop- ardy Clause barred a forfeiture of property smuggled into the United States after the acquittal of the per- son charged with illegally importing the property. Relying on Helvering v. Mitchell, supra, the Court held that "the forfeiture is not barred by the Double Jeopardy Clause of the Fifth Amendment because it involves neither two crimina l trials nor two criminal punishments." 409 U.S. at 235. The Court found that the forfeiture, "a civil sanction," was properly characterized as remedial because "[i] t prevents for- bidden merchandise from circulating in the United States, and, by its monetary penalty, it provides a reasonable form of liquidated damages for violation of the inspection provisions and serves to reimburse the Government for investigation and enforcement expenses." Id. at 236-237; see also Calero-Toledo, 416 ___________________(footnotes) to La Franca in Various Items, noted that such considerations did not apply to "a proceeding in rem to forfeit property used in committing an offense." Various Items, 282 U.S. at 580. ---------------------------------------- Page Break ---------------------------------------- 23 U.S. at 687 n.26 ("forfeiture statutes also help com- pensate the Government for its enforcement ef- forts"); Van Oster v. Kansas, 272 US. 465, 466 (1926) (property used to Violate the law may be regarded as a "common nuisance"). The Court unanimously reaffirmed its long- standing view of in rem forfeitures in United States v. One Assortment of 89 Fireams, 465 U.S. 354 (1984). After examining the factors outlined in Mendoza-Martinez, supra, and Ward, supra, the Court held that the Double Jeopardy Clause did not bar a civil in rem action to forfeit firearms "involved in or used or intended to be used in" violations of the Gun Control Act of 1968 following the owner's acquittal of related violations of that Act. 465 U.S. at 362-366. The 89 Firearms Court explained that, "[u]nless the forfeiture sanction was intended as punishment, so that the proceeding is essentially crim- inal in character, the Double Jeopardy Clause is not applicable." Id. at 362. In concluding that the in rem proceeding could not fairly be viewed as a second criminal prosecution, the Court noted that. Congress intended the forfeiture to be a civil remedy, id. at 363, that the forfeiture provisions "were meant to be broader in scope than the criminal sanctions," id. at 364, since they provided for forfeiture of property "involved in or used or intended to be used in" viola- tions of law, id. at 363, and that the statute furthered the "broad remedial aims" of "discouraging unregu- lated commerce in firearms and * * * removing from circulation firearms that have been used or intended for use outside regulated channels of commerce," id. at 364. Because the forfeiture served goals "plainly more remedial than punitive," ibid., and the claim- ant "failed to establish by the `clearest proof' " (id. ---------------------------------------- Page Break ---------------------------------------- 24 at 366) that the statute was "so punitive either in purpose or effect" as to negate Congress's intent "to establish a civil remedial mechanism," id. at 365, the Court concluded that the forfeiture was "not an addi- tional penalty for the commission of a criminal act, but rather [was] a separate civil sanction, remedial in nature [,] * * * [that was] not barred by the Double Jeopardy Clause," id. at 366. 3. The foregoing cases establish that in rem civil forfeiture proceedings under the statutes at issue in these cases cannot be viewed as criminal prosecutions barred by the "multiple prosecutions" component of the Double Jeopardy Clause. Indeed, the Ninth Cir- cuit conceded that under 89 Firearms "the law was clear" (95-346 Pet. App. 13a) that respondents Arlt and Wren could not secure dismissal of the forfeiture action on double jeopardy grounds. The Ninth Cir- cuit believed (and the Sixth Circuit, in adopting the Ninth Circuit's analysis, presumably agreed, see 95- 345 Pet. App. 9a-11a), however, that this Court "changed its collective mind" in three cases decided after 89 Firearms. See 95-346 Pet. App. 13a. First, the Ninth Circuit believed that in United States v. Halper, 490 U.S. 435 (1989), this Court "abandoned the * * * approach" of Ward and Men- doza-Martinez, which focuses on whether an entire statute is so inherently punitive that its provisions could be enforced only in a criminal trial. In the Ninth Circuit's view, Halper adopted instead a new, more expansive definition of "punishment" to be ap- plied on a case-by-case basis. 95-346 Pet. App. 13a- 14a. Under that new definition, the court believed that a civil sanction that cannot be said to serve "solely" a remedial purpose, but which also acts as a ---------------------------------------- Page Break ---------------------------------------- 25 deterrent, is "punishment." Id. at 14a. Second, the Ninth Circuit concluded that in Austin v. United States, 113 S. Ct. 2801 (199.3), an Excessive Fines Clause case, this Court abandoned Halper's case-by. case approach and adopted a "categorical" analysis. That analysis retains the "new-found wisdom" of Halper's expansive definition of "punishment," 95- 346 Pet. App. 14a, but applies it "to the entire scope of the statute which the government seeks to employ," id. at 16a. The third case, Department of Revenue of Montana v. Kurth Ranch, 114 S. Ct. 1937 (1994), was read by the Ninth Circuit as "compell[ing]" its interpretation of Austin and Halper. See 95-346 Pet. App. 25a. As we demonstrate next, that analysis of. this Court's cases since 89 Firearms is unsound. It fails to recognize that Halper invoked an established doc- trine of double jeopardy law-the prohibition of mul- tiple punishments-that by then had developed sub- ject to important limitations. In particular, that branch of double jeopardy law has never been a doc- trine that speaks to punishment simpliciter, but rather one that comes into operation only when a criminal defendant has been placed "in jeopardy"- i.e., at risk of conviction for a criminal offense. The protection against multiple punishments is a conse- quence of jeopardy, as this Court's cases have defined that term, not a substitute for it, as both courts below supposed, Nothing in Austin or Kurth Ranch changes that understanding. -------------------------------------- Page Break ---------------------------------------- 26 B. The Courts Below Misconstrued Halper, And This Court's Decisions Since Halper, By Failing To Recog- nize The Limits Of This Court's "Multiple Punish- ments" Cases 1. The doctrine that the Double Jeopardy Clause prohibits the imposition of "multiple punishments" originated in Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873 ). The defendant in that case had been convicted of a crime for which Congress had author- ized a sentence of a $200 fine or a one-year prison term, but not both.. The trial court, however, mis- takenly sentenced Lange both to the maximum fine and to a one-year prison term. After Lange had paid the fine, the money had passed into the Treasury, and Lange had served five days of the prison sentence, he sought a writ of habeas corpus from the trial court. Id. at 164, 175. The trial court attempted to vacate the earlier judgment of conviction and to enter a new sentence of one year's imprisonment from the date of the second judgment. Id. at 175. On the defend- ant's original application for habeas corpus, this Court ordered him released. The Court noted that, if the second sentence were enforced, the prisoner would pay $200, serve a year in jail, "and five days' imprisonment in addition." 85 U.S. (18 Wall. ) at 175. That result was objectionable on two separate but related grounds. First, when the trial court originally imposed sentence, it had lacked the statutory authority to impose both a fine and im- prisonment. Second, once the prisoner fully served either lawful half of the first-imposed sentence, "the power of the court to punish further was gone." Id. at 176; accord Bozza v. United States, 330 U.S. 160, 167 n.2 (1947), The Court justified that conclusion ---------------------------------------- Page Break ---------------------------------------- 27 by invoking not only "the well-settled principles of the common law," 85 U.S. (18 Wall.) at 178; see also id. at 176, but also the Double Jeopardy Clause. As to the latter, the Court reasoned, that the constitu- tional protection would be of little value `if, after judgment has been rendered on the conviction, and the sentence of that judgment executed on the crim- inal, he can be again sentenced on that conviction to another and different punishment, or to endure the same punishment a second time." Id. at 173; see also In re Bradley, 318 U.S. 50 (1943). In light of Ex parte Lange's reasoning, this Court has interpreted the "multiple punishments " doctrine as reflecting two distinct principles of double jeopardy law. The first principle is that the Double Jeopardy Clause prohibits a court, when it sentences a defend- ant in a criminal case, from imposing "greater pun- ishment than the legislature intended." Missouri v. Hunter, 459 U.S. at 366; see also North Carolina v.: Pearce, 395 U.S. 711, 717-718 (1969). The second principle is that the Clause protects "also against additions to a sentence in a subsequent proceeding that upset a defendant's legitimate expectation-of fi- nality." Jones v.' Thomas, 491 U.S. 376, 385 (1989). An improper increase to a sentence would occur, for example, "where a judge imposes only a 15-year sen- tence under a statute that permitted 15 years to life, has second thoughts after the defendant serves the sentence, and talk him back to impose another 10 years." Ibid.; see id. at 392-394 (Scalia, J., dissent- ng); cf. United States v. DiFrancesco, 449 U.S. 117, 139 (1980) (government may, notwithstanding Ex parte Lange, appeal a criminal sentence where such action is authorized by statute, since such statute ---------------------------------------- Page Break ---------------------------------------- 28 gives notice that district court's sentence is not final); Pennsylvania v. Goldhammer, 474 U.S. 28, 30-31 (1985 ) (per curiam) (same; remanding for inquiry into whether State law authorized prosecution's ap- peal); United States v. Martin Linen Supply Co., 430 U.S. at 569 n.6 (noting that, as interpreted in Ex parte Lange, "[t]he Double Jeopardy Clause * * * accords nonappealable finality to a verdict of guilty entered by judge or jury, disabling the Government from seeking to punish a defendant more than once for the same offense"). 5 2. United States v. Halper, supra, was an exten- sion of the second principle of Ex parte Lange-i. e., the rule that a judgment of conviction in a criminal case, once it has become final and unappealable, may not be modified so as to increase the sentence al- ready imposed. Halper was criminally prosecuted and convicted in 1985 of violating the false-claims statute, 18 U.S.C. 287 (1982), by submitting 65 in- flated Medicare claims that each charged $12 for what was really a $3 procedure. He was sentenced to two years' imprisonment and fined $5,000. 490 U.S. at 437 & n.2. ___________________(footnotes) 5 To the extent that Martin Linen read Ex parte Lange as requiring "nonappealable" finality for the sentence reflected in a judgment of conviction, see also United States V. Benz, 282 U.S. 304, 307 (1931), this Court's later decision in DiFrancesco rejected that view. While an appellate increase in the sentence imposed by the trial court might be viewed as a second `(punishment" in a subsequent "proceeding," the Court held that the defendant can have no Legitimate expecta- tion of finality when `a statute authorizes the government's appeal, so that the hearing of the appeal amounts "at the most [to the second part of] a two-stage sentencing proce- dure." United States V. DiFrancesco, 449 U.S. at 140 n.16. ---------------------------------------- Page Break ---------------------------------------- 29 The government later sought civil sanctions based on the same inflated claims under 31 U.S.C. 3729- 3731 (1982), a "fixed-penalty-plus-double-damages provision []" of the type that "in the ordinary case * * * can be said to do no more than make the Gov- ernment whole." 490 U.S. at 438, 449. That statute required for each violation a penalty of $2,000, an additional amount equal to two times the. govern- ment's damages, and the costs of the civil action. Id. at 438. Because of his numerous. violations, however, "Halper * * * appeared to be subject to a statutory penalty of more than $130,000." Ibid. The district court refused to enter judgment in that amount. rea- soning that a penalty "more than 220 times greater than the Government's measurable loss qualified as punishment which, in view of Halper's previous crim- inal conviction and sentence, was barred by the Double Jeopardy Clause." Id. at 439-440. On the government's direct appeal, this Court agreed with that conclusion. The Court framed the issue as whether "in a par- ticular case a civil penalty * * * may be so extreme and so divorced from the Government's damages and expenses as to constitute punishment." 490 U.S. at 442. In answering that question, the Court carefully distinguished the approach it had taken in Ward and similar cases, which, the Court explained, "is appro- priate in identifying the inherent nature of a proceed- ing, or in determining the constitutional safeguards that must accompany those proceedings as a general matter." Id. at 447. By contrast, the Court noted, "the Double Jeopardy Clause's proscription of mul- tiple punishments * * * is intrinsically personal,". ibid., and "requires a particularized assessment of the penalty imposed and the purposes that the penalty ---------------------------------------- Page Break ---------------------------------------- 30 may fairly be said to serve," id. at 448. The Court concluded that "the labels `criminal' and `civil' are not of paramount importance" in that inquiry, since "in determining whether a particular civil sanction constitutes criminal punishment, it is the purposes actually served by the sanction in question, not the underlying nature of the proceeding giving rise to the sanction, that must be evaluated." Id. at 447 & n.7. The Court accordingly h[e]ld that under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribu- tion. Id. at 448-449 (emphasis added). That holding, the Court emphasized, was "a rule for the rare case," in which a defendant is subjected to a sanction so "overwhelmingly disproportionate to the damages he has caused" that "it constitutes a second punish- ment." Id. at 449, 450. The Court's holding demonstrates that, "[w]hat- ever else may be said about" Halper, "it d[id] not alter the fundamental principle that an accused must suffer jeopardy before he can suffer double jeopardy." Serfs.w v. United States, 420 U.S. at 393, Halper did not hold that a "punishment" imposed in a civil proceeding is a "jeopardy" that triggers protection against a later criminal prosecution. Nor did Halper hold that whether a proceeding is properly charac- terized as criminal in nature is irrelevant to applica- bility of the Clause's protections. Instead, Halper held that, when the defendant has been criminally ---------------------------------------- Page Break ---------------------------------------- 31 prosecuted and punished, the finality branch of the multiple punishments doctrine precludes an increase in the defendant's sentence even when, as a formal matter, the additional punishment would result from a civil statute that is nonpunitive in the great ma- jority of its applications. The multiple punishments principle that-has devel- oped from Ex parte Lange to Halper turns on the notion that criminal convictions and their resulting sentences, at some point, achieve a degree of finality that is worthy of societal protection. Those cases express the view that once the government has ex- acted a punishment through the criminal process and has obtained a final judgment, a defendant may not be called upon to bear a second punishment for the same offense, whether the punishment be explicitly criminal, as in Lange, or so punitive as to amount to the same result, as in Halper. While the use of the Double Jeopardy Clause to protect against multiple punishments has been questioned, see Department_of Revenue of Montana v. Kurth Ranch, 114 S. Ct. at 1955-1959 (Scalia, J., dissenting), what has not been questioned is that the doctrine, as formulated, takes as its predicate an initial "jeopardy"-a risk of crim- inal conviction before a body competent to decide the question of guilt or innocence. In describing the con- sequences of a final criminal judgment, the doctrine thus belongs to the constitutional "common law" that pertains to the rights that follow from being placed in "jeopardy" in a criminal case. Compare Ashe v. Swenson, 397 U.S. 436 (1970) (Double Jeopardy Clause embodies "collateral estoppel" doctrine),. In keeping with that_ understanding, Halper re- peatedly emphasized the fact of the earlier criminal prosecution,. see 490 U.S. at 441, 448-449, 449, and ---------------------------------------- Page Break ---------------------------------------- 32 explained that, "when the Government already has imposed a criminal penalty and seeks to impose addi- tional punishment in a second proceeding, the Double Jeopardy Clause protects against the possibility that the Government is seeking the second punishment be- cause it is dissatisfied with the sanction obtained in the first proceeding," id. at 451 n.10 (emphasis added). And the Court concluded by stating that "the only proscription established by [its] ruling is that the Government may not criminally prosecute a defendant, impose a criminal penalty upon him, and then bring a separate civil action based on the same conduct and receive a judgment that is not rationally related to the goal of making the Government whole." Id. at 451 (emphasis added). Nothing in Austin v. United States, supra, changes the conclusion that an initial "jeopardy''-i.e., a prior criminal prosecution-is a prerequisite to the invoca- tion of the Double Jeopardy Clause. Austin did not involve the Double Jeopardy Clause at all. It held that the civil forfeiture provisions at issue in that case (21 U.S.C. 881 (a) (4) and (7)) triggered the applicability of the Eighth Amendment's Excessive Fines Clause. The Court expressly distinguished two of its double jeopardy precedents concerning the for- feiture of contraband or goods involved in customs violations, after noting that the forfeitures in both of those cases were remedial. 113 S. Ct. at 2811-2812 (citing 89 Firearms, 465 U.S. at 364, and One Lot Emerald Cut Stones, 409 U.S. at 237). The Austin Court did rely on Halper in assessing whether in rem civil forfeitures could be viewed as a "punishment" that triggers the protections of the Eighth Amend- ment. 113 S. Ct. at 2805-2806, 2810 n.12, 2812. But Austin did not purport to alter Halper's double jeop- ---------------------------------------- Page Break ---------------------------------------- 33 ardy holding as a rule for "the rare case" in which "a prolific but small-gauge offender [was subjected] to a [civil] sanction overwhelmingly disproportionate to the damages he has caused," after having been criminally prosecuted and punished. 490 U.S. at 449. Department of Revenue of Montana v. Kurth Ranch, supra, `the third case on which the Ninth Cir- cuit relied, dogs not support, much less "compel [] ," 95-346 Pet. App. 25a, that court's interpretation `of Halper and Austin. Kurth Ranch mentioned Austin only in passing to describe Austin's Eighth Amend- ment holding, 114. S. Ct. at 1945, and actually held that Halper did not furnish the proper framework for analyzing the issue before the Court, which was whether the Double Jeopardy Clause barred collection of Montana's tax on the possession of dangerous drugs after the "taxpayers" had been criminally prosecuted and punished. Id. at 1948. The- Court struck down the tax based on several "unusual features" in the statute that authorized it, which "[t]aken as a whole" rendered the tax "a concoction of anomalies."- Id. at 1947, 1948. Specifically, the Court found it signifi- cant that the statute conditioned liability on commis- sion of a crime, that the tax was due and collectable "only after the taxpayer ha [d] been arrested for the precise conduct that gives rise to the tax obligation in the first place," that the tax was an in personam sanction that was exacted after the drugs had been confiscated and destroyed, and that the tax amounted to more than eight times the market value of the drugs. Id. at 1947. As the Court noted, "[a] tax `an `possession' of goods that no longer exist and that the taxpayer never lawfully possessed has an un- mistakably punitive character" especially when it is "imposed on criminals and no others." Id. at 1948. ---------------------------------------- Page Break ---------------------------------------- 34 Those "exceptional" (114 S. Ct. at 1948) features persuaded the Court that the proceeding to collect the tax "was the functional equivalent of a successive criminal prosecution that placed the [taxpayers] in jeopardy a second time `for the same offence' " for which they had previously been criminally prosecuted. Ibid. That holding of Kurth Ranch, and the Court's conclusion that the Halper test was inapplicable, sug- gest that the Court viewed the proceeding to collect the tax as "essentially criminal," see Helvering v. Mitchell, 303 U.S. at 400, and thus that it violated the Double Jeopardy Clause's prohibition on succes- sive criminal prosecutions. Kurth Ranch therefore may be best understood as falling into the long line of decisions, including Mitchell, Mendoza-Martinez, and Ward, that have considered whether a civil statute is so inherently punitive in nature that the safeguards applicable to criminal prosecutions must be applied. It does not signal a departure from the ease-by-case approach adopted in Halper in the multiple punish- ments context, which requires an assessment of the purposes served by a particular sanction as applied to the case at hand. Still less does Kurth Ranch dis- pense with a prior criminal "jeopardy" as a prerequi- site for invoking multiple punishments analysis. The Court's most recent double jeopardy decision, Witte v. United States, 115 S. Ct. 2199 (1995), also undermines the broad reading of Halper and Kurth Ranch adopted by the courts below, because it con- firms that those cases do not change the long-standing rule that a person must first suffer the risk of con- viction for a crime before he may claim any double jeopardy violation. Witte was first convicted of at- tempting to possess marijuana with intent to dis- tribute it. His sentence for that offense was increased ---------------------------------------- Page Break ---------------------------------------- 35 on the basis of the trial judge's' finding" that he had also participated in cocaine importation offenses. When Witte was later separately indicted for those cocaine offenses, he sought dismissal of the charges on the ground that he had. already been "punished" for them during the sentencing on the marijuana charge. Although Witte relied on Halper and Kurth Ranch, see Brief for. Petitioner at 32-34, Witte v. United States, No. 94-6187 (0.T. 1994), and a broad interpretation of those cases could. have supported his claim, see Witte v United States, 115 S. Ct. at 2209-2210 (Scalia, J., concurring in the judgment); id. at 2212-2213 (Stevens, J., concurring in part and dissenting in part), this Court rejected it. The Court noted that Witte "clearly was neither prosecuted nor convicted of the cocaine offenses during the first crim- inal proceeding," id. at 2204, and concluded that. he also was not "punished" for those offenses when his earlier sentence was increased, because "for double jeopardy purposes" he could be deemed to have suf- fered " `punishment' * * * only for the offense of which [he was] convicted," id. at 2205; see also id. at 2206. In other words, because Witte was not at risk of conviction for the cocaine offenses when he was sentenced on the marijuana charge, he had failed to meet the threshold predicate for either a multiple prosecutions or a Halper multiple punishments claim. 3. The foregoing analysis demonstrates that the Sixth Circuit fundamentally erred by concluding that "jeopardy attached" when respondent Ursery settled the civil forfeiture action, and that this "jeopardy" barred the later jury trial on the criminal charges against him. 95-345 Pet. App. 6a-9a. As we have explained, the concept of "jeopardy" requires a pro- ceeding in which a defendant risks conviction for a ---------------------------------------- Page Break ---------------------------------------- 36 criminal offense, with all the unique consequences that attend that societal judgment. Only a defendant who has suffered that particular type of "intrinsically personal" (United States v. Halper, 490 U.S. at 447) risk may thereafter lay claim to the "constitutional policy of finality * * * in federal criminal proceed- ings" (United States v. Jorn, 400 U.S. at 479 (plur- ality opinion of Harlan, J.)) that the Double Jeop- ardy Clause represents." The consent judgment entered in the in rem action involving respondent Ursery's property did not subject him to that sort of risk of a criminal trial or punishment; it merely con- cluded a civil action involving his property. The Sixth Circuit drew an analogy between that consent judgment and a guilty "plea entered pur- suant to a plea agreement." 95-345 Pet. App. 7a. A plea of guilty to a criminal offense, however, "is itself a conviction. Like a verdict of a jury it is conclu- sive." Kercheval v. United States, 274 U.S. 220, 223 (1927) ; accord United States v. Broce, 488 U.S. 563, 570 (1989). Because Ursery was not placed "in jeopardy" by the judgment entered in the in rem civil forfeiture action, he did not meet the threshold re- quirement for the applicability of Halper's multiple punishments analysis or any other double jeopardy claim. The Sixth Circuit accordingly erred in order- ing the dismissal of his later judgment of conviction on double jeopardy grounds. C. The In Rem Civil Forfeitures In These Cases Did Not Impose "Punishment" For Purposes Of The Multiple Punishments Inquiry The Sixth and Ninth Circuits concluded that the civil forfeiture statutes at issue here necessarily and categorically inflict "punishment" on property owners for purposes of the Double Jeopardy Clause. As we ---------------------------------------- Page Break ---------------------------------------- 37 have shown, under this Court's cases, a "multiple punishments" inquiry is relevant only when a defend- ant has been criminally prosecuted, convicted, and sentenced. Accordingly, the inquiry should not have been undertaken at all in Ursery. Even if such an inquiry were appropriate, however,. neither the for- feiture of the property used to facilitate the narcotics crimes in Ursery nor the property forfeited as pro- ceeds of narcotics-related crimes in $405,089 .23 should be characterized as "punishment" for purposes of the Double Jeopardy Clause. 1. The forfeiture of the facilitating property in Ursery is not punishmernt. Under United States v. Halper, the issue whether a particular civil sanction amounts to "punishment" within the meaning of the Double Jeopardy Clause turns on an analysis of the sanction's purposes. 490 U.S. at 448. In our view, the proper inquiry in the multiple punishment. con- text is whether, as applied in a particular case, the sanction is rationally related to legitimate remedial aims. In the case of the forfeiture of property that facilitates a crime, we believe that the sanction should generally be regarded as remedial. a. The "hold[ing]" of Halper is that a civil sanc- tion is punitive if it "may not fairly be characterized as remedial, but only as a deterrent or retribution." 490 U.S. at 448-449 (emphasis added). Under the holding of Halper, a dominant remedial purpose ren- ders a sanction nonpunitive for purposes of the Double Jeopardy Clause, even if the sanction could also be said, in some respects, to act as a deterrent. Thus, Halper adopted a "rational-relationship re- quirement," whereby a sanction is deemed punitive when it "is not rationally related to the [nonpunitive] goal" that it purports to serve. Id. at 451 & n.12; ---------------------------------------- Page Break ---------------------------------------- 38 compare Bell v. Wolfish, 441 U.S. 520, 539 (1979) ("[I]f a restriction or condition is not reasonably related to a legitimate goal-if it is arbitrary or purposeless-a court permissibly may infer that the purpose of the governmental action is punishment"); United States v. Salerno, 481 U.S. 739, 746-747 (1987). Some language in Halper may be read to suggest that a civil sanction with any deterrent purpose should be viewed as "punishment." 490 U.S. at 448. 6 In our view, that formulation would sweep too broadly. Such a conception of punishment is not supported by the precedent on which Halper relied? And a "test" ___________________(footnotes) 6 The Court stated: [w]e have recognized in other contexts that punishment serves the twin aims of retribution and deterrence. See, e.g., Kennedy V. Mendoza-Martinez, 372 U.S. 144, 168 (1963) (these are the "traditional aims of punishment"). Furthermore, "[r]etribution and deterrence are not legit- imate nonpunitive governmental objectives." Bell v. Wolfish, 441 U.S. 520, 539, n. 20 (1979). From these premises, it follows that a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retri- butive or deterrent purposes, is punishment, as we have come to understand the term United States V. Halper, 490 U.S. at 448. 7 The authorities cited by Halper in the passage quoted at note 6, supra, do not require the conclusion that the presence of a deterrent component in a sanction having multiple pur- poses is "punishment." Mendoza-Martinez listed factors rele- vant to whether a statute is so penal that it must be viewed as imposing criminal punishment; one of those factors is whether the statute's operation promotes retribution and deterrence. Bell V. Wolfish, 441 U.S. 520 (1979), the second case cited by Halper, used the Mendoza-Martinez factors as guideposts to determine whether particular practices of prison ---------------------------------------- Page Break ---------------------------------------- 39 that considers any deterrent purpose to qualify a civil sanction as punishment diverges from the carefully circumscribed approach taken in Halper. There are few, if any, civil sanctions that do not serve in part to deter, and many are deliberately employed in part for that purpose. The view that any deterrent ele- ment means punishment would be inconsistent with the Halper Court's own emphasis on the limited scope of its ruling. See id. at 449, 450; see also Kurth Ranch, 114 S. Ct. at 1946. Austin, however, relied on the broader formula- tion in Halper in holding that the forfeiture of prop- erty used to facilitate narcotics offenses is sufficiently punitive to warrant application of the Eighth Amend- ment's prohibition of excessive fines. 113 S. Ct. at 2806, 2810 & n.12, 2812. `After noting various his- torical and contemporary features of forfeiture stat- utes that it viewed as signaling a punitive purpose, 8 ___________________(footnotes) administrators were "punishment." While the Court in Bell v. Wolfish did state generally that retribution and deterrence are punitive purposes, its overall test for measuring the na- ture of a sanction did not require that any element of deter- rence makes a sanction punitive. Rather, Belt V. Wolfish states: "[1] f a particular condition or restriction * * * is reasonably related to a legitimate governmental objective, it does not, without more, amount to `punishment.'" 441 U.S. at 539. 8 Austin found that in rem forfeitures "historically have been understood, at least in part, as punishment: 113 S. Ct. at 281O, and that nothing in 21 U.S.C. 881 (a) (4) and (7) affirmatively dispelled that understanding. On the contrary, the Court noted that those subsections contain innocent-owner defenses that "serve to focus the provisions on the culpability of the owner in a way that makes them look more like punish- ment," that Congress "has chosen to tie forfeiture directly to the emission of drug offenses," and that the legislative ---------------------------------------- Page Break ---------------------------------------- 40 the Court stated that, even on the assumption that forfeiting the instrumentalities of crime serves "some remedial purpose," the Eighth Amendment would still apply to those forfeitures because the Court could not conclude that they "serve [] solely a remedial purpose." Id. at 2812 "(emphasis added). The Court should not apply that test here. The sole question in Austin was whether the Ex- cessive Fines Clause of the Eighth Amendment ap- plies to in rem forfeitures, and the Court could have answered that question without reference to Halper's language at all. The dictionary definition of a "fine" -a "payment to a sovereign as punishment for some offense," 113 S. Ct. at 2812-does not require that punishment be the sole reason for a particular levy, and the Court concluded that the Framers understood the words "fine" and "forfeiture" to be synonymous. Id. at 2808 & n.7. Moreover, Austin expressly recog- nized that it "ma[d]e little practical difference" in that case whether the Excessive Fines Clause were held to apply to all forfeitures under the statutes at issue in that case, "or only to those that cannot be characterized as purely remedial." Id. at 2812 n.14. The practical consequences of applying the Eighth Amendment occur only when a fine is excessive, and "a fine that serve [d] purely remedial purposes [could not] be considered `excessive' in any event." Ibid. ___________________(footnotes) history of those provisions characterized them as a "powerful deterrent." 113 S. Ct. at 2810-2811. The Court was also unpersuaded that conveyances used to commit drug crimes can be compared to "contraband," the forfeiture of which is concededly remedial, or that the forfeiture of such property furnishes a reasonable form of liquidated damages, since its value may vary dramatically. Id. at 2811-2812. ---------------------------------------- Page Break ---------------------------------------- 41 The extension of Austin's reasoning, however, to the double jeopardy setting would have significant practical consequences. In that setting, a categorical conclusion that all civil forfeitures under the statute at issue constitute punishment would defeat the case- by-case approach adopted in Halper itself,' It could also completely bar a later criminal prosecution of the property owner, even if the particular prior civil forfeiture were fairly characterized as substantively remedial. That result would greatly expand Halper's rule "for the rare case." 490 U.S. at 449. And if Austin's formulation were extended to other contexts, it could cast unwarranted doubt on the constitution- ality of practices that have long been thought entirely proper, see, e.g., State v. Hickam, 668 A.2d 1321 (Corm. 1995) (double jeopardy challenge to DWI prosecution that followed suspension of motorist's license), would lead to increased litigation about mat- ters unrelated to the basic concerns of the relevant constitutional provision, and likely would ultimately prove unworkable. Cf. Sandin v. Conner, 115 S. Ct. 2293, 2300 & n.5 (1995) . 10 ___________________(footnotes) 9 Under Halper's approach, only so much of a sanction as constitutes punishment would be barred by a criminal convic- tion for the same offense. 490 U.S. at 449-450, 452; cf. Morris V. Mathews, 475 U.S. 237, 244-247 (1986). Under the cate- gorical approach, all of the sanction would presumably be barred. 10 That the analysis of whether punishment is imposed may differ in the excessive fines and double jeopardy contexts is consistent with this Court's general treatment of forfeiture issues. Indeed, if anything is clear from this Court's cases, it is that this Court's characterization of forfeiture as either punitive or remedial has depended upon the specific legal context in which that question arose. Thus, in Boyd V. United States, 116 U.S. 616, 634 (1886), and United States v. United ---------------------------------------- Page Break ---------------------------------------- 42 The mainstream of this Court's cases supports Halper's actual holding that a sanction is punitive only if it cannot rationally be explained by reference to a nonpunitive interest. See, e.g., Bell v. Wolfish, 441 U.S. at 539. Just one Term after Austin, the majority in Kurth Ranch recognized that in the dou- ble jeopardy context even "an obvious deterrent pur- pose" does not necessarily mark government practices as "punishment." 114 S. Ct. at 1946. Two of the dissenting Justices in Kurth Ranch, who voted for the result in Austin, expressly reaffirmed the more limited formulation reflected in Halper's holding. See id. at 1952 (Rehnquist, C. J., dissenting) ("[T]he proper inquiry is * * * whether [the tax] is so high that it can only be explained as serving a punitive purpose") ; id. at 1953 (O'Connor, J., dissenting) ("Our double jeopardy cases make clear that a civil sanction will be considered punishment to the extent that it serves only the purposes of retribution and deterrence, as opposed to furthering any nonpunitive objective"). In addition, while Austin relied on several factors in concluding that the forfeiture of instrumentalities of drug crimes is sufficiently punitive to trigger ___________________(footnotes) States Coin & Currency, 401 U.S. 715, 718 (1971), the Court characterized forfeiture as "criminal in nature" for purposes of determining whether a claimant in a forfeiture action could invoke the Fifth Amendment privilege against self- incrimination. See also One 1958 Plymouth Sedan V. Pennsyl- vania, 380 U.S. 693, 700-702 (1965) (finding, in light of forfeiture's role as a penalty, that Fourth Amendment's ex- clusionary rule applies). Subsequently, however, in One Lot Emerald Cut Stones and 8.9 Firearms, the Court reaffirmed the rule that in rem forfeitures serve substantial remedial ends and do not constitute punishment for double jeopardy purposes. ---------------------------------------- Page Break ---------------------------------------- 43 Eighth Amendment scrutiny, those factors have never traditionally been held sufficient to brand such for- feitures as punitive for purposes of the Double Jeopardy Clause. For example, while a statutory innocent-owner defense is of relatively recent vintage, equivalent administrative mitigation remedies that depend on the absence of "willful negligence" on the part of property owners have been available since 1790. See Calero-Toledo, 416 U.S. at 689 n.27. Sim- ilarly, a historical understanding of a particular_ sane- tion as "punishment" is one of the several Mendoza- Martinez factors that this Court in 89 Firearms concluded was not implicated by an in rem forfeiture. See 89 Firearms, 465 U.S. at 365 & n.7. Finally, while forfeitures of "facilitating property" are tied to the commission of certain crimes, their scope is much broader because they apply to property "in- tended" to be used in those crimes even if such an "intent" is not itself a crime. Cf. id. at 363-364. In any event, under Halper the last-mentioned factor merits minimal weight in the double jeopardy cal- culus, because in that case the defendant became liable for a civil penalty only after engaging in con- duct that also constituted a crime, see United States v. Halper, 490 U.S. at 438; see also United States ex rel. Marcus v. Hess, 317 U.S. at 549; Murphy v. United States, 272 U.S. 630, 632 (1926) (Holmes, J.), yet the Court nevertheless concluded that a civil penalty amounts to punishment only when it is so disproportionate to the government's claimed interest in compensation that it cannot rationally be justified, on a case-by-case basis, by reference to that interest. 490 U.S. at 449." ___________________(footnotes) 11 The Court in Austin also consulted the legislative history of the drug forfeiture statutes, noting that the Senate Report ---------------------------------------- Page Break ---------------------------------------- 44 b. Applying Halper, the appropriate case-by-case inquiry in the context of forfeitures of property used to facilitate narcotics crimes is whether the nexus between the particular property and the crime com- mitted or intended is close enough so that the for- feiture may rationally be thought to further one or more of the remedial goals that traditionally have justified that in rem remedy. Those goals are (1) inducing owners to exercise all reasonable care in managing their property, see, e.g., Calero-Toledo, 416 U.S. at 687-688; Van Oster, 272 U.S. at 467-468; (2) abating a nuisance or wrong, 12 see, e.g., Dob- ___________________(footnotes) had characterised the forfeiture of real property used for drug storage or manufacture as a "powerful deterrent." 113 S. Ct. at 2811 (quoting S. Rep. No. 225, 98th Cong., 1st Sess. 195 (1983) ). As we argue above, however, the presence of some deterrent objective should not result in civil forfeiture being deemed categorically punitive for double jeopardy purposes. 12 The reported cases provide graphic examples of the use of 21 U.S.C. 881 (a) (7) to meet this traditional objective of in rem forfeitures. In United States V. 141st Street Corp., 911 F.2d 870 (2d Cir. 1990), cert. denied, 498 U.S. 1109 (1991), nearly an entire apartment building was used to sell crack cocaine, and persistent efforts to compel the legal owners of the building to remedy the situation had failed. See id. at 873. Similarly, conveyances forfeitable under 21 U.S.C. 881 (a) (4) may be specially adapted to smuggle drugs, and the removal of such a conveyance from commerce undeniably serves a remedial purpose. See United States v. One 1983 Homemade Vessel Named "Barracuda", 858 F.2d 643 (11th Cir. 1988); cf. United States V. Chandler, 36 F.3d 358, 364 (4th Cir. 1994) ("Forfeiture of a $14 million yacht, specially outfitted with high-powered motors, radar, and secret com- partments for the sole purpose of transporting drugs from a foreign country into the United States, would probably offend no one's sense of excessiveness"), cert. denied, 115 S. Ct. 1792 (1995) . ---------------------------------------- Page Break ---------------------------------------- 45 bin's Distillery, 96 U.S. at 400; United States v. Cargo of Brig Malek Adhel, 43 U.S. (2 How.) 210, 233 (1844); and (3) "insuring an indemnity to the injured party," United States v. Cargo of Brig Malek Adhel, 43 U.S. (2 How.) at 233; see Republic Na- tional Bank v. United States, 506 U.S. 80, 87 (1992) (in rem forfeiture developed, in part, "to furnish_ remedies for aggrieved parties" ). The last objective -compensating an injured party-extends as well to the government, see United States ex rel. Marcus v. Hess, 317 U.S. at 551, which may fairly ask. that each person whose property contributes to. the harms caused by drug trafficking also contribute to defray- ing the government's costs of enforcement and the societal harms created by that activity. Cf. Halper, 490 U.S. at 446 n.6 (government may recover its "investigative and prosecutorial costs"); Kurth Ranch, 114 S. Ct. at 1953-1954 (O'Connor, J., dis- senting) ; United States v. Certain Real Property & Premises Known as 38 Whalers Cove Drive, 954 F.2d 29, 37 (2d Cir.) (government may be allowed "[a] reasonable allocation of more generalized enforce- ment costs-in the nature of overhead"), cert. denied, 506 U.S. 815 (1992) . In general, we believe that the forfeiture of the instrumentalities of crime is a rational means to achieve those remedial goals, and that it would take a "rare case," Halper, 490 U.S. at 449, to estab- lish otherwise." Such a rare' case might occur' if, ___________________(footnotes) 13 In the course of its Eighth Amendment analysis, the Austin Court did express doubt that, as a categorical matter, the forfeiture of instrumentalities of crime could be char- acterized as remedial. 113 S. Ct. at 2811. The Court, declined to equate conveyances and buildings involved in drug crimes ---------------------------------------- Page Break ---------------------------------------- 46 extremely valuable property were minimally involved in the offense, such that the forfeiture would be ra- tionally explicable only on the basis that it is intended to impose punishment for the purposes of the Double Jeopardy Clause. Short of that situation, however, a court should not reach the conclusion that a for- feiture of facilitating property is punitive for double jeopardy purposes. In light of those principles, respondent Ursery cannot meet his initial burden (United States v. Halper, 490 U.S. at 449) of establishing that the government's action in seeking forfeiture of his prop- erty was apparently punitive. Because respondent used the property for several years to process and distribute a controlled substance, it significantly fur- thered the harms occasioned by drug trafficking. And because respondent made no showing that a forfeiture valued at $13,250 represented a recovery "exponen- tially" in excess of the government's likely costs of enforcement, see id. at 445, the government's action in seeking its forfeiture appears rationally to serve the traditional remedial goals of in rem forfeiture. Nothing in that action, therefore, suggests that the ___________________(footnotes) to "contraband," and it found that the value of the property forfeitable on an instrumentality theory has no correlation to the harm caused by the underlying offense or to the costs of law enforcement. Id. at 2811-2812. On the case-by-case analy- sis applicable in the double jeopardy multiple punishments setting, see United States v. Halper, 490 U.S. at 452, however, the forfeiture of particular property may be integrally tied to the eradication of drug crime (see note 12, supra), and the nexus between the property's value and the costs of law enforcement may provide the "rough remedial justice," id. at 446, to which the government is entitled. Those purposes would characterize the forfeiture as remedial. ---------------------------------------- Page Break ---------------------------------------- 47 forfeiture could rationally be explained only as an attempt to inflict punishment. 2. The forfeiture of proceeds is not punishment. Even if the Court disagrees with our submission that Austin does not control the punishment question pre- sented in Ursery, and holds that the civil action in that case inflicted "punishment" for double jeopardy purposes, we believe that a different conclusion none- theless is required in $405,089.23. The district court in that case granted summary judgment in our favor on the ground, among others, that the assets at issue were "proceeds" of narcotics trafficking. See Pet. App. 3a-4a. As a plurality of this Court recognized in- 92 Buena Vista Ave., supra, statutes authorizing the forfeiture of "proceeds" are a recent development in forfeiture law. See 113 S. Ct. at 1133-1134 & n.16 (noting that first such statute was enacted in 1978). Accordingly, Austin's historical analysis of in rem forfeitures as being "in part" punitive (113 S. Ct. at 2810) does not speak to this category of relief sought by the `government. The "forfeiture of proceeds from illegal drug sales is more closely akin to the seizure of the proceeds from the robbery of a federal bank than the seizure of lawfully derived real property." United States v. Tilley, 18 F.3d 295, 300 (5th Cir. ), cert. denied, 115 S. Ct. 573, 574 (1994); cf. 92 Buena Vista Ave., 113 S. Ct. at 1133 n.15 (noting that "stolen property- the fruits of crime-was always subject to seizure" under the Fourth Amendment ) ; Caplin & Drysdale, Chtd. v. United States, 491 U.S. 617, 626 (1989) ("[T]he Government does not violate the Sixth Amendment if it seizes the robbery proceeds and refuses to permit the defendant to use them to pay for his defense"). When the government forfeits ---------------------------------------- Page Break ---------------------------------------- 48 such proceeds, it does no more than prevent unjust enrichment, a plainly remedial goal. See, e.g., United States v. Carson, 52 F.3d 1173, 1182-1183 (2d Cir. 1995 ) (disgorgement order in civil RICO case is not "punishment" for. double jeopardy purposes because "[d]isgorgement, by design, is compensatory"), cert. denied, No. 95-6929 (Feb. 20, 1996); SEC v. Bilzerian, 29 F.3d 689, 696 (D.C. Cir. 1994) (dis- gorgement of profits made during securities law vio- lation is purely remedial) ; see also Rex Trailer Co. v. United States, 350 U.S. 148, 153-154 & n.6 (1956). Any other view would lead to the absurd result that a bank robber who is arrested as he exits the bank, and from whom the stolen money is seized at that time, may not thereafter be prosecuted for the robbery. As the Fifth Circuit has explained, [w]hen * * * the property taken by the govern- ment was not derived from lawful activities, the forfeiting party loses nothing to which the law ever entitled him. * * * The possessor of pro- ceeds from illegal drug sales never invested hon- est labor or other lawfully derived property to obtain the subsequently forfeited proceeds, Con- sequently, he has no reasonable expectation that the law will protect, condone, or even allow', his continued possession of such proceeds because they have their very genesis in illegal activity. United States v. Tilley, 18 F.3d at 300; accord United States v. Salinas, 65 F.3d 551, 553-554 (6th Cir. 1995) (following Tilley); United States v. $18.4,505.01, 72 F.3d 1160 (3d Cir. 1995) (same); see. also United States v. Clementi, 70 F.3d 997, 999- 1000 (8th Cir. 1995) (rejecting Ninth Circuit's anal- ysis); but see United States v. 9844 South Titan ---------------------------------------- Page Break ---------------------------------------- 49 Court, No. 94-1285, 1996 WL 49002 (10th Cir. Feb. 5, 1996). Moreover, while the Court was not per- suaded in Austin that lawfully acquired property that is used merely to facilitate a crime should be viewed as contraband, property received in exchange for controlled substances bears a much closer nexus to the illegality and may, as Judge Rymer argued below, fairly be characterized as "the functional equivalent of contraband," 95-346 Pet. App. 27a, the forfeiture of which is "remedial." Austin v. United States, 113 S. Ct. at 2811. Finally, as the Seventh Circuit recently recognized, proceeds forfeitures can never be out of propor- tion to the "loss" suffered by the government or society. If there has been a finding that certain property, for instance, is forfeitable pursuant to 881 [a] (6) as proceeds of drug trafficking, it is directly equal to that part of the profits with which it was purchased. It directly represents at least a portion of the profits and can thus be less than or equal to society's loss, but not more than the loss. * * * That being the case, the forfeiture of proceeds acquired from drug dealing can hardly be termed punishment. Smith v. United States, No. 95-2259, 1996 WL 72858, at *3 (Feb. 21, 1996). For these reasons, the Ninth Circuit's conclusion that the forfeiture of the proceeds that respondents obtained from years of drug dealing is punishment simply "has to be wrong." 95-346 Pet. App. 28a (Rymer, J., dissenting" from denial of rehearing). Instead, the forfeitures at issue in $405,089.23 are remedial, and they cannot constitute punishment under the Double Jeopardy Clause. ---------------------------------------- Page Break ---------------------------------------- 50 D. If Civil In Rem Forfeiture Amounts To An "Offense" For Which Respondents Were Placed In Jeopardy, It Is Not The "Same Offense" As The Crimes For Which They Were Prosecuted 1. The Double Jeopardy Clause prohibits multiple punishments or successive prosecutions only for the "same offence." The test for determining whether two offenses are the "same" for double jeopardy pur- poses is the "statutory elements" test set forth in Blockburger v. United States, 284 U.S. 299, 304 (1932) : "The applicable rule is that where the same act or transaction constitutes a violation of two dis- tinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." See also Brown v. Ohio, 432 U.S. 161, 166 (1977) ("Th[e] [Block- burger] test emphasizes the elements of the two crimes"). Accordingly, if each statute at issue "re- quires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a sub- stantial overlap in the proof offered to establish the crimes." Iannelli v. United States, 420 U.S. 770, 785 n.17 (1975) ; see also United States v. Felix, 503 U.S. 378, 386 (1992) ("[A] mere overlap in proof between two prosecutions does not establish a double jeopardy violation") ; Albernaz v. United States, 450 U.S. 333, 338 (1981). The Blockburger test applies in both the multiple punishments and successive pros- ecutions contexts. See United States v. Dixon, 113 S. Ct. at 2856; Witte v, United States, 115 S. Ct. at 2204. 2. A straightforward application of the Block. burger test compels the conclusion that, if civil for- feiture amounts to an "offense" that triggers double ---------------------------------------- Page Break ---------------------------------------- 51 jeopardy protections, as both the Sixth and Ninth Circuits have held, the "offense" punished in the for- feiture proceedings at issue here is not the "same offense" as any of the offenses on which respondents were convicted. Each of the" forfeiture statutes re- quires proof that the defendant property played some role in the commission of a crime. Section 981 (a) (1) (A) provides for the forfeiture of "property *_* * involved in a transaction or attempted transaction," in violation of four money laundering statutes. Sec- tion 881 (a) (6) authorizes the forfeiture of money "furnished or intended to be furnished" in connec- tion with, "traceable to," or "used or intended to be used to facilitate" a drug trafficking crime. Sim- ilarly, Section 881 (a) (7) requires proof that the defendant real property was "used, or intended to be used, * * * to commit, or to facilitate the commission of," a drug crime. The respondents in $405,089.23 were convicted of conspiracy to commit drug offenses, in violation of 21 U.S.C. 846; possession of a controlled substance with the intent to distribute it, in violation of 21 U.S.C. 841 (a) (1) ; conspiracy to launder monetary instru- ments, in violation of 18 U.S.C. 371; and money laundering, in violation of 18 U.S.C. 1956. The re- spondent in Ursery was convicted of manufacturing marijuana, in violation of 21 U.S.C. 841 (a) (1). None of those statutes requires proof that any property was used in or generated by the offense. Because each of the forfeiture statutes does require that element of proof, each contains an element that the criminal statutes do not. Each of the criminal statutes also requires proof of at least one element not found in the forfeiture statutes. Conviction on the criminal charges required ---------------------------------------- Page Break ---------------------------------------- 52 proof that respondents participated in a conspiracy, possessed a controlled substance with the. intent to distribute it, or engaged in unlawful money launder- ing transactions. By contrast, the forfeiture statutes do not require proof of any particular crime, or proof of the participation of the property owner in the of- fenses that supported the forfeiture, much less proof that the owner entertained a mental state required for a criminal conviction. 14 See Origet v. United States, 125 U.S. 240, 246 (1888) ("The person punished for the [criminal] offence may be an entirely different person from the owner of the merchandise, or any person interested in it"); United States v Chandler, 36 F.3d 358, 362 (4th Cir. 1994), cert. denied, 115 S. Ct. 1792 (1995). Indeed, because the government may obtain forfeiture under Section 881 (a) (6) and (7) of property that was merely "intended" for use in a drug offense, forfeiture under those subsec- tions may occur even if no crime actually was com- mitted by anyone. For those reasons, there is no force to the Ninth and Sixth Circuits' view that, since forfeiture stat- utes "incorporate the elements of criminal offenses, forfeitures pursuant to them constitute a species of greater offenses with respect to the lesser-included of- fenses that form the bases of the forfeitures." United States v. One 1978 Piper Cherokee Aircraft, 37 F.3d 489, 495 (9th Cir. 1994); see also 95-345 Pet. App. 12a. Greater- and lesser-included offenses are the "same" for double jeopardy purposes because such of- ___________________(footnotes) 14 Thus, for example, an owner of property may be legally innocent of the crime that gives rise to the civil forfeiture, but be unable to meet the requirements of the statutory inno- cent-owner defense. ---------------------------------------- Page Break ---------------------------------------- 53 fenses do not satisfy the Blockburger test. As this Court has made clear, one statute does not define a lesser-included offense of another unless every viola- tion of the statute defining the greater offense "neces- sarily entails a violation of" the statute defining the lesser offense. United States v. Woodward, 469 U.S. 105, 107 (1985) (per curiam) (emphasis added); Brown v. Ohio, 432 U.S. at 168 (offense is lesser- included under Blockburger if it is "invariably true" that the lesser offense "requires no proof beyond that which is required for conviction of the greater") ; see also Schmuck v. United States, 489 U.S. 705, 716, 719 (1989). Because that quite clearly cannot be said of the purportedly "greater" civil forfeiture "offenses" at issue here, the courts below erred in concluding that those offenses are the "same" as- the crimes for which respondents were convicted. 15 ___________________(footnotes) 15 Apart from misapplying the "elements" test of the Block- burger decision (i.e., whether the "offenses" are the same in law), the Sixth Circuit in Ursery also ignored a second, and equally dispositive, aspect of the Blockburger decision, viz., whether the offenses at issue are the same in fact. While the better-known holding of Blockburger is addressed to the former question, that case also held that repeated violations of the same statute (which obviously would be the same offense under the "elements" test ) are still different "of- fenses" if each resulted from a fresh "impulse." Blockburger V. United States, 284 U.S. at 301-303; see also United States- V. Universal C.I.T. Credit Corp., 344 U.S. 218,224-225 "(1952); id. at 220 n.3 (referring to that aspect of Blockburger as addressing what the "unit of prosecution" is). Respondent Ursery was not `charged with, or convicted of, manufacturing marijuana based on any them-y that he grew the plants on his property, or that he did so more than once, but rather. on the basis that he did so in property belonging to one of his neighbors and on a specific date-July 30, 1992. As Judge Milburn noted in dissent (95-345 Pet. App. 26a-27a; see also ---------------------------------------- Page Break ---------------------------------------- 54 E. If Respondents Were "Punished" By The In Rem Civil Forfeiture Proceedings For The Same Offenses That Led To Their Criminal Convictions, That Punish- ment Occurred In The "Same Proceeding" As The Punishment Imposed By The Criminal Judgments Even if the forfeitures in these eases constituted "punishment" for the offenses for which the claimants were convicted, the "Double Jeopardy Clause simply is not implicated" if the criminal action was part of the same "proceeding" as the forfeiture action, be- cause in a single proceeding "the multiple-punishment issue would be limited to ensuring that the total pun- ishment did not exceed that authorized by the legisla- ture." United States v. Halper, 490 U.S. at 460; see also Missouri v. Hunter, 459 U.S. at 368-369. The Ninth Circuit concluded that parallel civil for- feitures and criminal convictions, being separately docketed and tried, can never be the same proceeding. 95-346 Pet. App. 7a-12a. The Sixth Circuit did not "fully adopt" the Ninth Circuit's approach, but it did hold that the civil and criminal actions were sep- arate proceedings because they were filed four months apart, ended in formally separate judgments entered by different judges, and were not coordinated by the government attorneys involved. 95-345 Pet. App. 16a. The courts below misapprehended the significance of Halper's reliance on the existence of "separate" proceedings. Because the multiple punishments doc- trine protects a criminal defendant's legitimate "ex- ___________________(footnotes) id. at 29a), the civil forfeiture action, by contrast, was based on respondent's use of his own property to facilitate the processing and distribution of marijuana over the period of "several years" that concluded with the search of his residence. ---------------------------------------- Page Break ---------------------------------------- 55 pectation of finality in the original sentence," United States v. DiFrancesco, 449 U.S. at 139; id. at 137; Pennsylvania v. Goldhammer, 474 U.S. at 30; see also United States v. Fogel, 829 F.2d 77, 83-88 (D.C. Cir. 1987) (Bork, J.), a proceeding is impermissible successive for purposes of that doctrine only when it is commenced after that expectation of finality has ripened. As demonstrated by this Court's cases up- holding the government's authority to appeal criminal sentences, the time at which that expectation ripens has nothing to do with whether an increase in the defendant's sentence is ordered by a different" judge, is procured by a different government attorney, or is ordered under the caption of a new docket number. Those are common occurrences upon the hearing of any sentencing appeal, and they do not render the appeal a "separate" proceeding at which punishment is impermissible increased. Indeed, Halper itself compels the conclusion that such factors cannot control whether a proceeding is impermissible successive for purposes of the multi- ple punishments_ inquiry, because the Court expressly stated that "[n]othing in [its] ruling" would pre- clude the government from obtaining a "civil penalty" and "criminal penalties in the same proceeding." 490 U.S. at 450. Because civil and criminal actions can- not be (and never have been) joined together in a single trial under our system of justice, see United States v. Millan, 2 F.3d 17, 20 (2d Cir. 1993), cert. denied, 114 S. Ct. 922 (1994) ; see also United States v. One Single Family Residence, 13 F.3d 1493, 1499 (11th Cir. 1994); United States v. Smith, No. 95- 1568, 1996 WL 34552 (8th Cir. Jan. 31, 1996), slip op. 6, Halper itself casts considerable doubt on the ---------------------------------------- Page Break ---------------------------------------- 56 Ninth and Sixth Circuits' approach to the question. 16 And because Halper specifically contemplated that the government could seek both civil and criminal penalties, that case also answers the Ninth Circuit's suggestion (95-346 Pet. App. 22a) that this Court's cases effectively require the government to elect whether it will proceed criminally or civilly. 17 ___________________(footnotes) 16 Even in the context of purely criminal proceedings, it is not invariably true that formally separate criminal trials involving the same offense amount to "separate" proceedings that trigger double jeopardy protections. See Justices of Boston Municipal Court V. Lydon, 466 U.S. 294, 309 (1984) (two-tier state system, even if "technically" resulting in two trials, "can be regarded as * * * a single, continuous course of judicial proceeding' that does not implicate the concerns of the Double Jeopardy Clause); see also Ohio V. Johnson, 467 U.S. 493, 500-501 (1984) (no double jeopardy violation to continue prosecution on remaining charges in indictment after defendant chose to plead guilty to lesser-included offenses). 17 The Ninth Circuit suggested that the government could have sought criminal forfeiture under 18 U.S. 982 and 3554 and 21 U.S.C. 853, and simply added a forfeiture count to the criminal indictment. 95-346 Pet. App. 8a-9a, The issue, however, is whether the Double Jeopardy Clause re- quires that the government do so, not whether the government might, in future cases, find ways to mitigate the Ninth Cir- cuit's erroneous interpretation of the Constitution. Moreover, the vast majority of civil forfeiture statutes have no criminal forfeiture analogue. See U.S. Dep't of Justice, Compilation of Selected Federal Asset Forfeiture Statutes (Aug. 1995). As a practical matter, the Ninth Circuit's analysis requires the government to choose between a criminal sentence of imprisonment or fine, on the one hand, and civil forfeiture, on the other, even though Congress quite clearly intended for both to be available. In any event, the Ninth Circuit overlooked the fact that forfeiture under those provisions is an in personam action ---------------------------------------- Page Break ---------------------------------------- 57 As with other double jeopardy questions, the rele- vant inquiry instead is whether the government's conduct "constitute [s] `governmental oppression of the sort against which the Double Jeopardy Clause was intended to protect.'" Justices of-Boston Munici pal Court v. Lydon, 466 U.S. 294, 310 (1984) (quot- ing United States v. Scott, 437 U.S. at 91) ; accord Ohio v. Johnson, 467 U.S. 493,.502 (1984) ; United States v. DiFrancesco, 449 U.S. at 142. In the con- text of the interests protected by the multiple pun- ishments doctrine, that type of "oppression" occurs only when the government defeats the defendant's legitimate expectation of finality. The facts of these cases make clear that respondents were well aware that the government intended to seek a full comple- ment of statutorily authorized remedies in civil and criminal actions that were basically contemporaneous. Thus, respondents had actual notice that the criminal `sentence would not be the sole sanction sought by the government on the basis of their criminal conduct, and thus they could not reasonably have formed any expectation to the contrary. For that reason, the facts of these cases do not implicate Halper's basic concern that the government is seeking to disturb an ______________________(footnotes) that does not uniformly achieve the ends that Congress envisioned for in rem forfeitures. For example, because an in personam forfeiture must be obtained in a criminal trial, it is not available when the criminal defendant/property owner is a fugitive from justice, whose trial may not proceed in absentia. See Crosby V. United States, 506 U.S. 255 "(1993). Thus, under the ruling below, if a fugitive owns a crack cocaine-infested tenement, the government has the choice of abating the nuisance through a civil proceeding in rem, but only if it is willing to risk granting him immunity from prosecution in the event he ultimately is caught. ---------------------------------------- Page Break ---------------------------------------- 58 otherwise final criminal judgment because "it is dis- satisfied" with the criminal sentence received by the defendant. United States v. Halper, 490 U.S. at 451 n.10; see also United States v. Smith, slip op. 6. Indeed, the facts of these cases conclusively show that the government did not commence separate civil and criminal actions to defeat any expectation of final- ity to which respondents were legitimately entitled by virtue of the Double Jeopardy Clause. In $405,098.23, the government filed the forfeiture complaint five days after the claimants were charged in a supersed- ing indictment with drug-trafficking and money- laundering offenses. Far from viewing that dual fil- ing as an abusive tactic warranting legal relief, re- spondents discussed the appropriateness of staying the civil action pending the outcome of the criminal case (95-346 Pet. App. 51a). They thus evidenced not only their own inability to discern any double jeopardy injury from the government's dual filings (to which they did not object at all until the case was on appeal, see id. at 5a n.1) but also their willingness to deal with the criminal and civil actions seriatim. Cf. Jeffers v. United States, 432 U.S. 137, 154 (1977) (plurality opinion of Blackmun, J.). Similarly, respondent in Ursery was indicted in February 1993, four months after the civil forfeiture action was commenced and long before the outcome of either case could be known. He likewise did not see in the parallel actions any danger to his double jeop- ardy rights. To the contrary, he elected to settle the forfeiture action, with full knowledge of the pend- ency of the criminal prosecution, and then stood trial on the criminal charges without raising any double jeopardy issue. It was not until after he was ---------------------------------------- Page Break ---------------------------------------- 59 convicted by a jury that he made a double jeopardy claim for the first time. See 95-345 Pet. App. 4a. The unfolding of those events may well suggest that re- spondent, after concluding a bargain he thought fair and equitable in the civil case and unsuccessfully try- ing his luck with the jury in the criminal case, turned to the Double Jeopardy "Clause for the "sword" (Ohio v. Johnson, 467 U.S. at 502) that might rescue him from "the consequences of his voluntary choice[s]" (United States v. Scott, 437 U.S. at 99). Those events do not, however, bespeak the type of "governmental overreaching that double jeopardy is supposed to pre- vent." Ohio v. Johnson, 467 U.S. at 502. CONCLUSION The judgments of the courts of appeals should be reversed. Respectfully submitted. DREW S. DAYS, III Solicitor General JOHN C. KEENEY Acting Assistant Attorney General MICHAEL R. DREEBEN Deputy Solicitor General MIGUEL A. ESTRADA Assistant to the Solicitor General KATHLEEN A. FELTON JOSEPH DOUGLAS WILSON Attorneys FEBUARY 1996