No. 95-630 In the Supreme Court of the United States OCTOBER TERM, 1995 FRANK L. BAIRD, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION DREW S. DAYS, III Solicitor General JOHN C. KEENEY Acting Assistant Attorney General J. DOUGLAS WILSON Attorney Department of Justice Washington, D.C. 20530 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether the Double Jeopardy Clause requires dis- missal of a pending indictment that charges peti- tioner with drug and firearm offenses, because of the uncontested administrative forfeiture of $2,582 that was seized from petitioner's residence. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinion below . . . . 1 Jurisdiction . . . . 1 Statement . . . . 1 Argument . . . . 5 Conclusion . . . . 12 TABLE OF AUTHORITIES Cases: Abney v. United States, 431 U.S. 651 (1977) . . . . 6, 7 Austin v. United States, 113 S. Ct. 2801 (1993) . . . . 5 North Carolina v. Pearce, 395 U.S. 711 (1969) . . . . 5 Ricketts v. Adamson, 483 U.S. 1 (1987) . . . . 10 Serfass v. United States, 420 U.S. 377 (1975) . . . . 10 United States v. Arreola-Ramos, 60 F.3d 188 (5th Cir. 1995) . . . . 8, 9 United States v. Chick, 61 F.3d 682(9th Cir. 1995) . . . . 8 United States v. Cretacci, 62 F.3d 307(9th Cir. 1995) . . . . 8, 9, 12 United States v. Dixon, 113 S. Ct. 2849 (1993) . . . . 11 United States v. $405,089.23, 33 F.3d 1210 (9th Cir. 1994), petition for cert. pending, No. 94-346 . . . . 6, 11 United States v. Halper, 490 U.S. 435 (1989) . . . . 5, 10, 11 United States v. Perez, No.94-60788 (5th Cir. Nov. 21,1995) . . . . 6, 7-8 United States v. Ramirez-Burgos, 44 F.3d 17 (1st Cir. 1995) . . . . 7 United States v. Salinas, 65 F.3d 551(6th Cir. 1995) . . . . 6 United States v. Scott, 437 U.S. 82 (1978) . . . . 10 United States v. Tilley, 18 F.3d 295 (5th Cir. 1994), cert. denied, 115 S. Ct. 573 (1995) . . . . 6 (III) ---------------------------------------- Page Break ---------------------------------------- IV Cases-Continued: Page United States v. Torres, 28 F.3d 1463 (7th Cir.), cert. denied, 115 S. Ct. 669 (1994) . . . . 8, 9-10 United States v. Usery, 59 F.3d 568 (6th Cir. 1995), petition for cert. pending, No. 95-345 . . . . 6, 11 Witte v. United States, 115 S. Ct. 2199 (1995) . . . . 4, 7 Constitution, statutes, regulations, and rule: U.S. Const.: Amend. V (Double Jeopardy Clause) . . . . 2, 3 4, 5, 6, 7, 9, 10-11 Amend. VIII (Excessive Fines Clause) . . . . 6 18 U.S.C. 924(c)(1)(Supp. V 1993) . . . . 2 18 U.S.C. 3731 . . . . 7 19 U.S.C. 1602-1621 (1988 & Supp. V 1993) . . . . 8 19 U.S.C. 1608 . . . . 8 19 U.S.C. 1609 . . . . 8 21 U.S.C. 841(a)(1) . . . . 2 21 U.S.C. 846 . . . . 2 21 U.S.C. 856 . . . . 2 21 U.S.C. 858 . . . . 2 21 U.S.C. 860 (Supp. V 1993) . . . . 2 21 U.S.C. 881(a) (1988 & Supp. V 1993) . . . . 11 21 U.S.C. 881(a)(4) . . . . 5 21 U.S.C. 881(a)(6) . . . . 6, 12 21 U.S.C. 881(a)(7) . . . . 6 21 U.S.C. 881(d) . . . . 8 21 C.F.R.: Sections 1316.74-1316.77 . . . . 8 Section 1316. 77 . . . . 8 Supplemental Rules for Certain Admiralty and Maritime Claims, Rule C . . . . 9 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1995 No. 95-630 FRANK L. BAIRD, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW The opinion of the court of appeals (Pet. App. 1a- 32a) is reported at 63 F.3d 1213. JURISDICTION The judgment of the court of appeals was entered on August 11, 1995. A petition for rehearing was denied on September 12, 1995. The petition for a writ of certiorari was filed on October 17, 1995. The jurisdic- tion of this Court is invoked under 28 U.S.C. 1254(1). STATEMENT A grand jury in the Eastern District of Pennsyl- vania returned an indictment charging petitioner in (1) ---------------------------------------- Page Break ---------------------------------------- 2 nine counts with narcotics and firearms offenses. 1. Before trial, petitioner moved to dismiss the indict- ment on the ground that his conviction and sentenc- ing on the offenses it charges would violate the Double Jeopardy Clause. The district court denied the motion, and petitioner took an interlocutory appeal. The court of appeals affirmed. Pet. App. 1a- 32a. 1. On April 20, 1994, Drug Enforcement Adminis- tration (DEA) agents and local law enforcement offi- cers executing a search warrant at petitioner's resi- dence in Bryn Mawr, Pennsylvania, discovered a clan- destine laboratory for the manufacture of 3, 4 methyl- enedioxy-methamphetamine, a Schedule I hallucin- ogenic controlled substance sold on the street as "Ecstacy." The officers also discovered precursor chemicals, formulae for the manufacture of the drug, and more than 30 kilograms of "Ecstacy." Pet. App. 2a; Gov't C.A. Br. 5-6. In addition, the agents seized ___________________(footnotes) 1 Petitioner is charged with conspiracy to manufacture and distribute 3,4 methylenedioxy-methamphetamine or "Ecstacy" (a schedule I narcotic), in violation of 21 U.S.C. 846; one count of attempting to manufacture "Ecstacy," also in violation of 21 U.S.C. 846; one count of manufacturing "Ecstacy" and one count of possessing "Ecstacy" with the intent to distribute it, each in violation of 21 U.S.C. 841(a)(1); possession of "Ecstacy" with the intent to distribute it within 1,000 feet of a school, in violation of 21 U.S.C. 860 (Supp. V 1993); creating a substantial risk of harm to human life while attempting to manufacture and manufacturing "Ecstacy," in violation of 21 U.S.C. 858; maintaining a place for the manufacture of "Ecstacy," in violation of 21 U.S.C. 856; attempted manufacture of amphetamine, in violation of 21 U.S.C. 846; and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. 924(c)(1) (Supp. V 1993). ---------------------------------------- Page Break ---------------------------------------- 3 $2,582 in cash that they found in petitioner's bedroom. Pet. App. 2a. On May 27, 1994, the DEA sent petitioner a notice stating that the DEA sought the administrative for- feiture of the $2,582 seized from petitioner's resi- dence. The notice stated that the cash and property were subject to forfeiture because they were "used or acquired as a result of a drug-related offense." The notice further stated that a claimant "may petition the DEA for the return of the property or [the claimant's] interest in it * * * and/or * * * may contest the seizure and forfeiture of the property." The notice explained the procedure for filing a claim or a petition for remission of the forfeiture and stated, in underscored words, that a "claim of ownership" to the property must be filed within 20 days of the date when the notice was first published in a newspaper of general circulation. See C.A. App. 13-15; see also Pet. App. 9a-10a. Petitioner failed to file a claim to the seized cash. Because no claim to the property was made, on July 15, 1994, the DEA issued an administrative declar- ation of forfeiture for the currency. Gov't C.A. Br. 7. 2. Before the trial of the criminal charges against petitioner, he moved to dismiss the indictment. Peti- tioner contended that the administrative forfeiture already had "punished" him for the offenses charged in the indictment, and that the multiple punishments prong of the Double Jeopardy Clause accordingly barred his criminal conviction and sentence on those offenses. The district court denied the motion. Pet. App. 33a. The court held that "jeopardy [did] not attach[] pursuant to the administrative forfeiture pro- ceeding." Ibid. ---------------------------------------- Page Break ---------------------------------------- 4 3. Petitioner took an interlocutory appeal of the district court's order, and the court of appeals affirmed. Relying on Witte v. United States, 115 S. Ct. 2199 (1995), the court first held that it had juris- diction to hear petitioner's interlocutory appeal. Pet. App. 4a n.4. Turning to the merits, the court held that the administrative forfeiture of property does not impose punishment on anyone, because the govern- ment may obtain forfeiture only when no claim is filed to the property. Pet. App. 10a-11a. The court explained: Without adopting a position on the matter, we can certainly understand how a court might conclude that civil forfeiture under 21 U.S.C. 881(a)(6) of drug proceeds constitutes "pun- ishment" for double jeopardy purposes. However, we cannot fathom how an administrative for- feiture, under section 881 (a)(6), of unclaimed alleged drug proceeds could possibly be held to Constitute "punishment" in relation to an in- dividual's double, jeopardy claim. * * * All property administratively forfeited is, as a matter of law, "ownerless" property, and the taking of ownerless property "punishes" no one. Ibid. (citations omitted]. The court also concluded that the administrative forfeiture of property seized from petitioner did not place him in "jeopardy" within the meaning of the Double Jeopardy Clause. Pet. App. 11a. The court held that "jeopardy does not, and cannot, attach until one is made a party to a proceeding before a trier of fact having jurisdiction to try the question of guilt or innocence." Id. at 13a. Accordingly, because petitioner failed to file a claim when he received ---------------------------------------- Page Break ---------------------------------------- 5 notice of the administrative forfeiture, the court held that his conviction and sentencing on the offenses charged in the indictment would not violate the Double Jeopardy Clause. Id. at 13a-14a. Judge Sarokin dissented. He argued that if peti- tioner could establish that he owned the forfeited cash, then the forfeiture might have imposed punish- ment on him, even though he had not participated in the administrative proceeding. Pet. App. 16a-32a. ARGUMENT Petitioner renews his contention (Pet. 6-18) that the multiple punishments prong of the Double Jeopar- dy Clause bars his conviction and sentencing on the offenses charged in the indictment because he was previously punished by the uncontested adminis- trative forfeiture of the $2,582 seized from his residence. The court of appeals correctly rejected that contention, and its conclusion is in accord with the views of every court of appeals that has con- sidered the question. Accordingly, no further review is warranted. 1. The Double Jeopardy Clause prohibits the impo- sition of multiple punishments for the same offense in separate proceedings. See North Carolina v. Pearce, 395 U.S. 711, 717 (1969). In United States v. Halper, 490 U.S. 435 (1989), this Court held that after imposi- tion of a criminal punishment, the Clause's "multiple punishments" prohibition barred imposition of a civil penalty that was "so extreme and so divorced from the Government's damages and expenses as to constitute punishment." Id. at 442. Subsequently, in Austin v. United States, 113 S. Ct. 2801 (1993), the Court held that a forfeiture of certain property used to facilitate narcotics offenses, pursuant to 21 U.S.C. 881(a)(4) and ---------------------------------------- Page Break ---------------------------------------- 6 (7), constitutes "punishment" for purposes of the Excessive Fines Clause of the Eighth Amendment. Relying on Halper and Austin, the Ninth Circuit has held that a civil forfeiture of drug proceeds under 21 U.S.C. 881(a)(6) invariably constitutes punishment for, purposes of the multiple punishments prong of the Double Jeopardy Clause. See United States v. 405,089.23, 33 F.3d 1210 (9th Cir. 1994), petition for cert. pending, No. 95-346 (filed Aug. 28, 1995); but see United. States v. Salinas, 65 F.3d 551 (6th Cir, 1995) (forfeiture of proceeds of drug trafficking is wholly remedial and accordingly it does not Inflict "punishment"); United States v. Tilley, 18 F.3d 295 (5th Cir. 1994) (same), cert. denied, 115 S. Ct. 573 (1995). The Fifth and Sixth Circuits have held that the forfeiture of property used to facilitate the commission of a crime, under 21 U.S.C. 881(a)(7), constitutes punishment for that crime, See United States v. Perez, No. 94-60788 (5th Cir. Nov. 21, 1995); United States v. Ursery, 59 F.3d 568 (6th Cir. 1995), petition for cert. filed, No. 95-345 (filed Aug. 28, 1995). Petitioner's claim rests on the premise that the uncontested administrative forfeiture of the $2,582 seized from his residence likewise constitutes pun- ishment, apparently for all of the offenses alleged in the indictment that is pending against him. Even if correct, that claim- is not properly before this Court, because the court, of appeals lacked jurisdiction to consider it. In Abney v. United States, 431 U.S. 651 (1977), this Court held that pretrial orders rejecting claims of former jeopardy may be raised by a defen- dant in an interlocutory appeal when they assert the right not to be "twice put to trial for the same offense." Id. at 661. The Court suggested, however, that a pure multiple-punishments claim, such as ---------------------------------------- Page Break ---------------------------------------- 7 petitioner raises, would not be similarly appealable, since "that aspect of the right can be fully vindicated on an appeal following final judgment." Id. at 660. The court of appeals believed that a different conclusion was warranted by this Court's decision in Witte v. United States, 115 S. Ct. 2199 (1995), which recognized that the Double Jeopardy Clause prohibits the government from "attempting a second time to punish criminally, for the same offense." Id. at 2204 (emphasis partially deleted). Witte, however, present- ed no question of appellate jurisdiction, because the district court had dismissed the indictment on double jeopardy grounds, see id. at 2203-2204, and the court of appeals accordingly had jurisdiction over the government's appeal under 18 U.S.C. 3731. For that reason, the passage on which the court below relied was addressed to whether the defendant's claim was premature, not whether it was appealable. The fact that a double jeopardy claim may be ripe for adju- dication by a district court (as is true of many other pretrial claims a defendant may make, including suppression claims) does not mean that the court's refusal to honor the claim is immediately appealable on an interlocutory basis. Because the right not to be subject to impermissible multiple punishments can be completely vindicated on appeal from a conviction and sentence, the court of appeals erred in asserting appellate jurisdiction over petitioner's interlocutory appeal. 2. ___________________(footnotes) 2 The courts of appeals are divided over the issue of ap- pealability. Compare United States v. Ramirez-Burgos, 44 F.3d 17, 18-19 (1st Cir. 1995) (finding no right of interlocutory ap- peal for multiple punishments claim), with Pet. App. 4a n.4 (finding right of appeal); United States v. Perez, No. 94-60788 ---------------------------------------- Page Break ---------------------------------------- 8 2. In any event, petitioner's double jeopardy claim is unfounded. The uncontested administrative forfeit- ure in this case did not inflict "punishment" on peti- tioner. And because petitioner did not claim owner- ship of the cash in the administrative proceeding, he was not placed in "jeopardy" in that proceeding. Every court of appeals that has considered the issue has held that an administrative forfeiture does not constitute "punishment" for double jeopardy pur- poses. See United States v. Cretacci, 62 F.3d 307 (9th Cir. 1995); United States v. Arreola-Ramos, 60 F.3d 188, 192 (5th Cir. 1995); United States v. Torres, 28 F.3d 1463,1465 (7th Cir.), cert. denied, 115 S. Ct. 669 (1994). Like the court of appeals in this case, those courts have recognized that administrative procedures may be used only to obtain the forfeiture of unclaimed property. 3. Thus, when the government (5th Cir. Nov. 21, 1995) (same); United States v. Chick, 61 F.3d 682, 684-686 (9th Cir. 1995) (same). 3 Under 21 U.S.C. 881(d), the provisions of the customs laws governing summary forfeiture may be used against property that is subject to forfeiture under the controlled substances laws. See also 21 C.F.R. 1316.74-1316.77. The applicable cus- toms statutes, 19 U.S.C. 1602-1621 (1988 & Supp. V 1993), provide for the administrative forfeiture of specified categories of seized property if the government publishes notice of seizure and intention to forfeit the property. If no claim is filed, the agency has the authority to declare the property forfeited without a judicial adjudication. See 19 U.S.C. 1609; 21 C.F.R. 1316.77. If a proper claim and bond (or proof of indigence) is filed, the agency seeking forfeiture must transmit the matter to the appropriate United States Attorney's office to commence a judicial forfeiture action. See 19 U.S.C. 1608. To commence that action, the government files an in rem complaint against the property and publishes notice of the ---------------------------------------- Page Break ---------------------------------------- 9 gives notice that it intends to forfeit property, and the purported owner fails to take any step to establish his interest in the property, the government may consider the property abandoned or ownerless. As the Ninth Circuit has explained, "[j]ust as the seizure of abandoned property cannot be said to implicate the former owner's privacy rights, the forfeiture of aban- doned property cannot be said to implicate the former owner's double jeopardy rights." United States v. Cretacci, 62 F.3d at 310-311 (citations omitted). See also United States v. Arreola-Ramos, 60 F.3d at 192 (because only unclaimed property may be adminis- tratively forfeited, administrative forfeiture "punish- e[s] no one"); United States v. Torres, 28 F.3d at 1466 (administrative forfeiture does not impose punish- ment on a person who fails to establish an interest in the forfeited property). Moreover, a person who fails to file a claim in response to a notice that the government will seek administrative forfeiture of property never becomes a party to any forfeiture proceeding. In the absence of either the imposition of punishment or some parti- cipation in a proceeding aimed at imposing punish- ment, a person has not been placed in "jeopardy" with- in the meaning of the Double Jeopardy Clause. See United States v. Arreola-Ramos, 60 F.3d at 192-193 ("As Arreola did not appear and contest the forfeiture, he was never in jeopardy"); United States v. Torres, ___________________(footnotes) forfeiture proceeding. Any person who wishes to contest the judicial forfeiture must file a claim and an answer to the complaint. See Rule C, Supplemental Rules for Certain Admiralty and Maritime Claims. In a judicial forfeiture, a claimant may challenge the government's right to obtain forfeiture and raise an innocent owner defense. ---------------------------------------- Page Break ---------------------------------------- 10 28 F.3d at 1465 ("As a non-party, Torres was not at risk in the forfeiture proceeding, and '[w]ithout risk of a determination of guilt, jeopardy does not attach' ") (quoting Serfass v. United States, 420 U.S. 377, 391- 392 (1975)). Petitioner's failure to file a claim therefore precludes a finding that he was in jeopardy or suffered punishment in the administrative forfeiture. Indeed, petitioner's failure to file a claim also constitutes a waiver of any rights he might have had under the Double Jeopardy Clause. As this Court has held, "the Double Jeopardy Clause * * * does not relieve a defendant from the consequences of his voluntary choice." United States v. Scott, 437 U.S. 82, 98-99 (1978). When a defendant makes a deliberate choice "to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which he was accused," he cannot claim that he suffered a violation of the Double Jeopardy Clause in subsequent proceedings. Ibid.; see Ricketts v. Adamson, 483 U.S. 1, 10-12 (1987). Moreover, as the Court reiterated in Halper, the Double Jeopardy Clause provides an "intrinsically personal" constitutional protection and thus a defendant must show that his rights under the Clause have been violated. Halper, 490 U.S. at 447. By declining to file a claim to the seized cash, petitioner avoided becoming a party to the administrative for- feiture. Thus, he cannot now claim that the administrative forfeiture resulted in a violation of his personal rights under the Double Jeopardy Clause. 4. ___________________(footnotes) 4 Even if petitioner had suffered punishment by the administrative forfeiture of the seized cash, he would not be entitled to dismissal of the indictment. The Double Jeopardy ---------------------------------------- Page Break ---------------------------------------- 11 3. There is no reason to hold this case pending the disposition of the government's petitions for certio- rari in United States v. Ursery, No. 95-345, and United States v. $405,089.23, No. 95-346. In our petition in $405,089.23, we seek review of the Ninth Circuit's conclusion that civil judicial forfeiture of drug proceeds under 21 U.S.C. 881(a) (1988 & Supp. V 1993) invariably constitutes punishment under the Double Jeopardy Clause. Similarly, our petition in Ursery challenges the Sixth Circuit's holding that the forfeiture of property used to facilitate a crime always amounts to punishment for double jeopardy purposes. Both petitions argue that the forfeitures at issue do not necessarily constitute punishment, that parallel civil forfeiture and criminal proceedings are not separate proceedings for purposes of the multiple punishments prong of the Double Jeopardy Clause, and that civil forfeiture and the criminal offense on which it rests are not the "same offense" under the Double Jeopardy Clause. Although this Court's acceptance of the govern- ment's arguments in the Ursery and $405,089.23 peti- tions would provide additional grounds for rejecting petitioner's claims, a decision favorable to the re- spondents in those cases would not provide petitioner with a ground for relief. The Ninth Circuit, which has taken the most expansive view of the application of the Double Jeopardy Clause to civil forfeiture pro- ___________________(footnotes) Clause prohibits the imposition of multiple punishments only for the "same offense" and only in separate proceedings. See Halper, 490 U.S. at 450 see also United States v. Dixon, 113 S. Ct. 2849, 2856 (1993). Petitioner does not explain how the forfeiture of a relatively modest sum of money can constitute punishment for every offense in a nine-count indictment. ---------------------------------------- Page Break ---------------------------------------- 12 ceedings, has squarely rejected a claim identical to petitioner's, in an opinion written by the author of the Ninth Circuit's decision in $405,089.23. See United States v. Cretacci, supra. And the court of appeals in this case explicitly differentiated between civil for- feiture of drug proceeds under 21 U.S.C. 881(a)(6), of which it said that it could "certainly understand how a court might conclude that * * * [such forfeiture] constitutes `punishment,' " and the uncontested administrative forfeiture involved here, which it could not "fathom" how a court could regard as punishment. Pet. App. 10a. Accordingly, if the Court grants certiorari in Ursery and 405,089.23 and decides those cases adversely to the government, they will have no effect on the validity of the court of appeals' reasoning in this cases. 5. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. DREW S. DAYS, III Solicitor General JOHN C. KEENEY Acting Assistant Attorney J. DOUGLAS WILSON Attorney DECEMBER 1995 ___________________(footnotes) 5 Moreover, in light of the court of appeals' error in assert- ing jurisdiction over this interlocutory appeal (see pages 6-7, supra), a remand to that court for further consideration of petitioner's claims would be especially inappropriate. ---------------------------------------- Page Break ----------------------------------------