IV. Double Jeopardy Problems of Civil Forfeiture (Part 2)
[FN92]. U.S. Const. amend. V. The Supreme Court set forth a framework for the interpretation of the "same offense" requirement in Blockburger v. United States, 284 U.S. 299, 304 (1932) ("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, 432 U.S. at 168 (the Double Jeopardy clause also bars prosecution for lesser included offenses and greater offenses); United States v. Dixon, 113 S.Ct. 2849, 2851-52 (1993) (focusing inquiry on technical analysis of elements of statutes charged, rather than conduct involved).
[FN94]. See United States v. Wilson, 420 U.S. 332, 339-42 (1975). It is said that James Madison's original proposal for the Double Jeopardy Clause stated that "no person shall be subject, except in cases of impeachment, to more than one punishment or trial for the same offence" but that he changed the text of the Clause for fear that the government would not be able to retry a defendant who had successfully attacked an illegally obtained conviction. Peter J. Henning, Precedents in a Vacuum: The Supreme Court Continues to Tinker with Double Jeopardy, 31 Am. Crim. L. Rev. 1, 7 (1995).
[FN97]. Ex parte Lange, 85 U.S. (18 Wall.) 163, 173-76 (1874); United States v. Halper, 490 U.S. 435, 436 (1989). However, the multiple punishment prong of the Double Jeopardy Clause has received robust challenge. In an eloquent dissent in Kurth Ranch, Justice Scalia argued that no such prong to the Double Jeopardy Clause is contained within the Fifth Amendment. Justice Scalia argued that the Framers of the Fifth Amendment did not contemplate the prohibition of multiple punishments:
For legislation ... providing two sanctions for the same misconduct, enforceable in separate proceedings, one a conventional criminal prosecution, and the other forfeiture proceeding or a civil action as upon a debt, was quite common when the Fifth Amendment was framed by Congress .... It would do violence to proper regard for the framers of the Fifth Amendment to assume that they contemporaneously enacted and continued to enact legislation that was offensive to the guarantees of the double jeopardy clause which they had proposed for ratification.
Department of Revenue of Montana v. Kurth Ranch, 114 S.Ct. 1937, 1955-56 (1994) (citing United States ex rel. Marcus v. Hess, 317 U.S. 537, 555-56 (1943)). Justice Scalia further explained that the no-multiple-punishment rule is inconsequential to the Double Jeopardy Clause because of the latter's ban on multiple prosecutions. Id. at 1957. Justice Scalia traced the multiple punishment prong of the Double Jeopardy Clause to Ex parte Lange, which, in his opinion, has been misread and parroted by judges in subsequent cases:
In [Ex parte Lange], the lower court sentenced Lange to both one year of imprisonment and a $200 fine for stealing mail bags from the Post Office, under a statute that authorized a maximum sentence of one year of imprisonment or a fine not to exceed $200. The Court, acknowledging that the sentence was in excess of statutory authorization, issued a writ of habeas corpus. Lange has since been cited as though it were decided exclusively on the basis of the Double Jeopardy Clause ... Justice Miller's opinion for the Court rested the decision on ... both the Due Process and Double Jeopardy Clauses of the Fifth Amendment. The opinion went out of its way not to rely exclusively on the Double Jeopardy Clause, in order to avoid deciding whether it applied to prosecutions not literally involving "life and limb." It is clear that the Due Process Clause alone suffices to support the decision, since the guarantee of the process provided by the law of the land assures prior legislative authorization for whatever punishment is imposed.
Kurth Ranch, 114 S.Ct. at 1956 (citations omitted). Thus, according to Justice Scalia, cumulative punishments are only subject to the Due Process requirement that they be authorized by the legislature. Id. at 1956-57. But cf. Halper, 490 U.S. at 440 (1989) (tracing the multiple punishment prohibition to the founding fathers).
[FN100]. Halper, 490 U.S. at 451 n.10. The government can "seek and obtain  both the full civil penalty and the full range of statutorily authorized criminal penalties in the same proceeding." Id. at 450.
[FN102]. Cf. Jeffers v. United States, 432 U.S. 137, 152 (1977) (holding that the double jeopardy clause was not violated by the government's amenability to conducting separate successive criminal proceedings at the election of the defendant).
[FN103]. See, e.g., Heath v. Alabama, 474 U.S. 82, 88 (1985) (when the two entities seeking to prosecute the defendant for the same criminal act are separate sovereigns, deriving their authority from distinct sources of power, no double jeopardy implications exist for the second prosecution).
[FN104]. See, e.g., Bartkus v. Illinois, 359 U.S. 121, 122-24 (1959) (the state prosecution was not a sham or tool of the first federal prosecution when an FBI agent gave evidence from the federal prosecution to the state prosecutors); United States v. Coonan, 938 F.2d 1553, 1563 (2d Cir. 1991) (holding that the state prosecution was valid despite cooperation and coordination between federal and state authorities), cert. denied, 112 S.Ct. 1486 (1992).
[FN118]. Id. In the past, the Supreme Court has entertained allegations that acts of Congress involving civil forfeiture and sanctions were essentially criminal and subject to the procedural rules governing criminal prosecutions. See, e.g., United States v. Ward, 448 U.S. 242 (1980); Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). In those cases, the Court enumerated detailed criteria to be applied in evaluating such allegations:
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 finding of scienter, whether its operation will promote the traditional aims of punishment-retribution and deterrence, 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 ....
Mendoza-Martinez, 372 U.S. at 168. Moreover, the Ward Court stated that the inquiry in this area should proceed on two levels: First, we have set out to determine whether Congress, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other. Second, where Congress has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect as to negate that intention. In regard to this latter inquiry, we have noted that "only the clearest proof could suffice to establish the unconstitutionality of a statute on such ground."
Ward, 448 U.S. at 248-49 (citations omitted). By contrast, the Supreme Court opinion in Halper completely ignored all but one of these factors - namely, the retribution-deterrence factor - in its analysis of whether a sanction is civil or criminal, without satisfactorily explaining the reasons why this inquiry should deserve less judicial scrutiny.
[FN121]. The multiple prosecution protection of the Double Jeopardy Clause would not prevent the subsequent civil proceeding because, based on the Court's bifurcated approach, it is only triggered when the subsequent proceeding is criminal.
[FN122]. In Kurth Ranch, a case that was handed down five years later, Justice Scalia heavily criticized the Court's bifurcated analysis. 114 S.Ct. at 1959. He explained that any proceeding which inflicts punishment in the context of the Double Jeopardy Clause is a criminal prosecution. Id. at 1960. However, he pointed out that if such a proceeding is a criminal prosecution, not only would the attendant constitutional protections apply, but the proceeding itself would be struck down as a violation of the double prosecution prong of the Double Jeopardy Clause, leaving no room for the Court's double-punishment analysis. Id. Hence, in Justice Scalia's opinion, the Supreme Court's framework not only throws into disarray the civil/criminal dichotomy, but is also internally contradictory and inconsistent.
[FN124]. Unlike other civil sanction proceedings, civil forfeiture proceedings were always property-centered actions. See, e.g., Dobbins Distillery v. United States, 96 U.S. 395, 397 (1877). Thus, historically, these proceedings did not trigger many constitutional protections. See, e.g., United States v. Riverbend Farms, Inc., 847 F.2d 553, 558 (9th Cir. 1988) (forfeiture did not implicate due process rights). However, acknowledging that civil forfeitures had a real and sometimes devastating effect on a person's well-being, the Supreme Court gradually rejected the traditional view that civil forfeiture proceedings were exclusively property-centered actions. See United States v. James Daniel Good Real Property, 114 S.Ct. 492 (1993) (stating that important private interests can find their expression in property). Accordingly, it recognized an increasing level of constitutional protections applicable to such proceedings. See, e.g., United States v. United States Coin & Currency, 401 U.S. 715 (1971) (Fifth Amendment privilege against self-incrimination applies to civil forfeiture proceedings under the Drug Control Act); Mathews v. Eldridge, 424 U.S. 319 (1976) (due process protections applicable to civil forfeiture proceedings); James Daniel Good Real Property, 114 S.Ct. 492 (pre-seizure notice and hearing required with respect to real property forfeitures). In keeping with that trend, the Austin decision, involving the civil forfeiture statute under the Drug Control Act, further personalized in rem forfeiture proceedings by subjecting them to the Supreme Court's expansion of the Double Jeopardy Clause.
[FN130]. Id. at 2806 (quoting Halper, 490 U.S. at 448). Ultimately, the Court remanded the case to the lower court for a determination as to whether the forfeiture constituted excessive punishment within the meaning of the Excessive Fines Clause. Id. at 2812. The Court declined to announce a formula for determining whether a forfeiture is excessive under the Eighth Amendment, holding that "prudence dictates that we allow the lower courts to consider that question in the first instance." Id. In the past, the Court has stated that three factors must be considered when determining whether punishment violates the Eighth Amendment: "(1) the gravity of the offense and the harshness of the penalty, (2) the sentences imposed on other criminals in the same jurisdiction, and (3) the sentences imposed for commission of the same crime in other jurisdictions." Solem v. Helm, 463 U.S. 277, 292 (1983). But see Harmelin v. Michigan, 111 S.Ct. 2680 (1991) (criticizing those factors). While those factors would be of guidance in the analysis with respect to civil sanctions, it is doubtful that they would aid such analysis in the context of civil forfeitures. See discussion infra part IV.C.
[FN136]. Kurth Ranch, 114 S.Ct. at 1952. Under the State's Act, the State's Department of Revenue could levy ten percent of the market value of the drugs or $100 per ounce, whichever is greater. Mont. Code Ann. s 15-25-111(2)(a) (West 1987). Thus, in that case, the State's Department of Revenue attempted to collect $900,000 in taxes from the Kurths. Kurth Ranch, 114 S.Ct. at 1942.
[FN138]. Id. at 1948. The Court had previously sustained a $100-per-ounce federal marijuana tax. See United States v. Sanchez, 340 U.S. 42, 44 (1950). Thus, the Court held that the fact that the tax was much higher than the drug's market value did not, alone, render the tax punitive. Kurth Ranch, 114 S.Ct. at 1946-47. However, the Court found that, when viewed in conjunction with other factors present in Kurth Ranch, such as the fact that the tax was conditioned on the commission of a crime, the tax was "too far-removed in crucial respects from a standard tax assessment to escape characterization as punishment." Id. at 1948.
[FN147]. See, e.g., United States v. Fliegler, 756 F.Supp. 688, 697 (E.D.N.Y. 1990) ($110,000 of costs in civil and criminal actions supported a civil penalty of $115,000 only, despite the fact that the False Claims Act authorized $230,000 in penalties).
[FN148]. See United States v. Furlett, 974 F.2d 839, 844 (7th Cir. 1992) ($75,000 sanction for commodities fraud was deemed to be an approximation of government's investigation and prosecution costs and, thus, remedial).
[FN149]. See United States v. Millan, 2 F.3d 17, 20 (2d Cir. 1993) ("Civil and criminal suits, by virtue of our federal system of procedure, must be filed and docketed separately."), cert. denied, 114 S.Ct. 922 (1994); see also United States v. 18755 North Bay Road, 13 F.3d 1493 (11th Cir. 1994) (same holding).
[FN151]. See United States v. $405,089.23 U.S. Currency, 33 F.3d 1210 (9th Cir. 1994); United States v. Torres, 28 F.3d 1463, 1465 (7th Cir. 1994), cert. denied, 115 S.Ct. 669 (1994). But see United States v. Hudson, 14 F.3d 536, 543 (10th Cir. 1994) (rejecting Ninth Circuit reading of Kurth Ranch); United States v. Barnette, 10 F.3d 1553, 1559-60 (11th Cir. 1994), cert. denied, 115 S.Ct. 74 (1994); United States v. Smith, 1995 WL 27386 (N.D. Ala. 1995).
[FN153]. See Crowder v. United States, 874 F.Supp. 700, 703 (M.D. N.C., 1994) ("In order for the Court to determine whether the civil proceeding constituted a punishment, one would have to quantify the value of petitioner's interest in the seized property to determine whether the forfeiture lacked any remedial character.").
[FN157]. See SEC v. Tome, 833 F.2d 1086, 1096 (2d Cir. 1987) (Disgorgement requires defendants to "'give up the amount by which [they were] unjustly enriched."') (quoting SEC v. Commonwealth Chem. Sec. Inc., 574 F.2d 90, 102 (2d Cir. 1979)), cert. denied sub nom. Lombardfin S.p.A. v. SEC, 486 U.S. 1014 (1988); see also 69A Am. Jur. 2d Securities Regulation s 1708 ("The amount to be disgorged is determined by reference to the rule that the remedy is remedial, not punitive ...."). In effect, the Fifth Circuit has relied on this rationale to hold that the civil forfeiture of proceeds is always remedial:
The forfeiture of proceeds of illegal drug sales serves the wholly remedial purposes of reimbursing the government for the costs of detection, investigation, and prosecution of drug traffickers and reimbursing society for the costs of combatting the allure of illegal drugs, caring for the victims ..., lost productivity, etc.
United States v. Tilley, 18 F.3d 295, 294 (5th Cir. 1994). Notably, the Supreme Court denied certiorari on the issue. See 115 S.Ct. 574 (1994). However, the Ninth Circuit has expressly rejected Tilley, holding that the civil forfeiture of proceeds is always punishment. See $405,089.23 U.S. Currency, 33 F.3d at 1218-22 (courts must consider civil forfeiture statute as a whole, rather than the particular property to be forfeited).
[FN160]. See 21 U.S.C.A. s 881(a)(6) (West 1981). Moreover, in Kurth Ranch, the Supreme Court considered the proportionality between the government's costs and the civil sanction in determining whether or not the civil sanction was remedial. See supra notes 133-142 and accompanying text. Because the value of proceeds and derivative proceeds in a drug case will often exceed the government's cost in pursuing that case, it is possible for courts to conclude that the forfeiture is punitive on this basis as well.
[FN161]. Austin, 113 S.Ct. at 2811-12; 21 U.S.C.A. ss 881(a)(4), (7); see also One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 699-702 (1965) (stating that there was nothing criminal about an automobile which had been used to facilitate a drug transaction and, thus, that its forfeiture was not remedial but punitive). Cf. United States v. One Assortment of 89 Firearms, 465 U.S. 354, 364 (1984) (forfeitures of gunsunder 21 U.S.C.A. s 881(a)(11) always remedial); Austin, 113 S.Ct. at 2811 (acknowledging the holding of One Assortment of 89 Firearms).
[FN162]. In effect, therefore, under current law, the government must choose between pursuing a criminal prosecution or seeking the forfeiture of "conveyances, including aircraft, vehicles, or vessels, which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment" of controlled substances, 21 U.S.C.A. s 881(a)(4), or "real property ... which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of ... [a drug offense] punishable by more than one year's imprisonment," id. s 881(a)(7). This was the view expressed by the Ninth Circuit in $405,089.23 U.S. Currency. See supra notes 151-57. However, the Second and Eleventh Circuits have managed to skirt the Double Jeopardy implications of such civil forfeitures by holding that the civil proceedings in which the forfeitures are obtained are part and parcel of one coordinated prosecution. See supra note 149 and accompanying text.
[FN163]. See United States v. Torres, 28 F.3d 1463, 1465 (7th Cir. 1994) ("Because [the Defendant] did not make a claim in the forfeiture proceeding, we have no reason to believe that he owned or had any interest in the [property] .... If [the Defendant] lacked an interest in the [property], its forfeiture did not impose any penalty on him ...."), cert. denied, 115 S.Ct. 669 (1994).
[FN165]. See supra note 79; see also United States v. Nakamoto, 876 F.Supp. 235, 239 (D. Haw. 1995) ("Because the Defendant chose to forego his opportunity to contest the forfeiture, he was not a party to the forfeiture proceeding and cannot claim an interest in the property. Without an interest in the property, he cannot be said to have been subjected to jeopardy or punished in any way by the administrative forfeiture.").