Ross BRYANT, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
No. 27S04-9409-CR-865
Supreme Court of Indiana
Dec. 27, 1995
Concurring and Dissenting Opinion of Justice DeBruler, Jan. 2, 1996.
Pamela Carter, Attorney General, Suzann Weber Lupton, Deputy Attorney General, Indianapolis, for appellee.
ON PETITION TO TRANSFER
SHEPARD, Chief Justice.
We confront several questions of first impression involving Indiana‘s new drug tax. The State imposed both civil and criminal sanctions on appellant Ross Bryant for his failure to pay the Indiana Controlled Sub
I. Statement of Facts
In August 1992, Grant County Sheriff‘s deputies responded to an alarm at Bryant‘s home. Discovering an open door with fresh pry marks on it, they entered the dwelling and searched it. There was no one in the home, but police found over 250 marijuana plants in the basement, outhouse and garden. Officers then obtained a warrant and completed a more thorough search which uncovered marijuana seeds, dried marijuana and other drug paraphernalia. When police questioned Bryant upon his return, he confessed that the marijuana was his and that he was growing it for his own use. Police then arrested Bryant and transported him and the objects seized to the Grant County Jail.
The deputies next contacted the Indiana Department of Revenue to report their findings. The Department dispatched a special agent to the jail to determine the amount of Controlled Substance Excise Tax owed by Bryant.2 The agent weighed the marijuana and assessed a tax of $83,680.3 The agent then met with Bryant and demanded payment. Because Bryant did not immediately pay the CSET, the agent served him with a “Record of Jeopardy Findings and Jeopardy Assessment Notice and Demand” which required payment of the CSET plus a 100 percent penalty for nonpayment of the tax.4 Bryant‘s total obligation to the State was thus $167,360. The very next day, the Department levied on Bryant‘s “checking and/or savings accounts, contents of safe deposit boxes, money market accounts, certificates of deposit, ... [and] any other evidence of indebtedness” as payment on this obligation. (R. 456.) Counsel informed us at oral argument that the Department also seized Bryant‘s home.
The State next charged Bryant with failure to pay the CSET, a class D felony;5 growing and cultivating more than 30 grams of marijuana, a class D felony;6 maintaining a common nuisance, a class D felony;7 and, possession of less than 30 grams of marijuana, a class A misdemeanor.8
In April 1993, Bryant was convicted on all four counts. The court sentenced him to two and a half years in prison on each of the four felony counts and one year for misdemeanor possession. His sentences were to run concurrently, with one year suspended to probation.
Bryant raises the following issues on appeal:
- Whether the State violated the Double Jeopardy Clause by assessing both the CSET‘s civil and criminal sanctions against Bryant;9
- Whether the trial court erroneously convicted Bryant for failure to pay the CSET based on evidence that he grew and cultivated marijuana;
- Whether the trial court erred when it admitted evidence obtained in the search of Bryant‘s home;
- Whether the trial court erred by admitting evidence of Bryant‘s prior convictions; and,
- Whether there was sufficient evidence to convict Bryant of possessing marijuana and maintaining a common nuisance.
We hold the Department‘s assessment of the CSET against Bryant was a jeopardy. His criminal prosecution for failure to pay the CSET constituted a second jeopardy in violation of his double jeopardy rights under the United States Constitution, as did his criminal prosecutions for growing and possessing marijuana. Accordingly, we vacate his conviction on those counts.10 We affirm his conviction on the remaining count.
II. The CSET and Double Jeopardy
Bryant claims that because the State assessed the CSET and its 100 percent penalty for nonpayment against him and later convicted him of a felony for nonpayment, it violated his double jeopardy rights under the United States and Indiana Constitutions.11
The Double Jeopardy Clause provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.”
Jeopardy is, in its constitutional sense, a technical term which has traditionally applied only to criminal prosecutions. Evans v. Brown, 109 U.S. 180, 3 S.Ct. 83, 27 L.Ed. 898 (1883). Departing from this historical rule, however, the U.S. Supreme Court has held in recent years that particular forfeitures, civil fines and financial exactions can be “jeopardies.” Montana Dep‘t of Revenue v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994); United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989). Cf. Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993). In determining whether a jeopardy has occurred, the Court has said that the sanction‘s label of “criminal” or “civil” is not controlling. Halper, 490 U.S. at 447, 109 S.Ct. at 1901; see also United States v. Haywood, 864 F.Supp. 502, 506 (W.D.N.C.1994) (description of sanction as “civil” does not foreclose possibility it is a jeopardy). Rather, the test is whether the
A. Is the CSET‘s Civil Sanction a Punishment?
The Supreme Court recently delineated the analysis for determining whether a tax is a punishment in Kurth Ranch, 511 U.S. at 767, 114 S.Ct. at 1937, a case bearing strong resemblance to the one before us. In Kurth, the Montana Department of Revenue sought to impose both criminal and tax penalties for the same possession of marijuana. In determining whether the tax was a “punishment” and thus a jeopardy under double jeopardy analysis, the Court examined four factors: the tax‘s deterrent purpose (as opposed to revenue purpose), its high rate, its prerequisite of the commission of a crime before assessment, and the nature of the tax. Ultimately, the Court found that when considered in tandem these factors revealed that the Montana tax was a punishment and thus a second jeopardy imposed on the taxpayer in violation of the Double Jeopardy Clause.
To apply the Kurth analysis, we examine first the purpose and rate of the CSET.13 It is apparent that the CSET is aimed at least partly towards deterrence. One who pays the CSET receives a receipt that admonishes him that delivery, sale, possession or manu
Second, just as the Kurth Court found the high rate of the Montana tax demonstrated its punitive character, we find the CSET‘s rate similarly revealing. The Montana tax was imposed at the rate of $100 per ounce, roughly eight times the market value of the marijuana taxed. Kurth Ranch, 511 U.S. at 767, n. 12, 114 S.Ct. at 1943, n. 12. Indiana‘s CSET imposes a tax of $40.00 per gram, or $1,133.96 per ounce. This is a rate of over ninety times the market value and more than eleven times the rate imposed in Kurth.14 It indicates a punitive character.
The third factor the Kurth Court found suggestive of the tax‘s punitive nature was the fact that it was conditioned on the commission of a crime and was exacted only after the possessor was arrested. The Court found these conditions “significant of [the tax‘s] penal and prohibitory intent rather than the gathering of revenue.” Kurth Ranch, 511 U.S. at 767, 114 S.Ct. at 1947 (quoting United States v. Constantine, 296 U.S. 287, 295, 56 S.Ct. 223, 227, 80 L.Ed. 233 (1935)). The CSET is similarly conditioned on the commission of a crime. It is imposed only on individuals who deliver, possess or manufacture controlled substances “in viola
Moreover, while the plain language of the statute does not limit the imposition of the CSET to a time after arrest, this is its effect. The law does say that a taxpayer owes the tax regardless of whether she is arrested. The Department assesses the tax, however, only when police contact it to report an individual who is in custody for the delivery, possession or manufacture of a controlled substance. The resemblance between the two schemes seems more compelling than the difference.
Finally, the Kurth Court found that because the Montana tax was characterized as a “property” tax but was assessed only after the controlled substance was confiscated, the tax possessed none of the indicia of “a species of a property tax.” Kurth Ranch, 511 U.S. at 767, 114 S.Ct. at 1948. Likewise, the CSET is so far removed from a normal excise tax that it must be classified as a punishment. An excise tax is one which is imposed upon the performance of an act or the enjoyment of a privilege. Black‘s Law Dictionary 506 (5th ed. 1979). As in Kurth, however, the Department routinely imposes the CSET only after a taxpayer‘s drugs have been confiscated. The taxpayer neither enjoys a privilege nor performs an act at the time of taxation. The CSET cannot therefore be classified as a normal excise tax.15
The CSET differs from a traditional excise tax in another respect. The rate of the tax so significantly outreaches that of other excise taxes in this state that its classification as a normal excise tax is impossible. No other Indiana excise tax imposes such a severe civil penalty for nonpayment. See, e.g.,
The CSET is not identical to the Kurth tax in every respect, but the factors outlined in Kurth do not create a bright line. After evaluating the CSET as a whole, like the Court in Kurth, we conclude that “this drug tax is a concoction of anomalies, too far-removed in crucial respects from a standard tax assessment to escape characterization as punishment for the purpose of Double Jeopardy analysis.” Kurth Ranch, 511 U.S. at 767, 114 S.Ct. at 1948. Accordingly, the assessment of the CSET and its 100 percent penalty against Bryant was a punishment and thus a jeopardy.
B. Were the CSET‘s Civil and Criminal Sanctions Multiple Punishments for the Same Offense?
Having concluded the CSET‘s civil sanction was a jeopardy, we must now determine whether the imposition of the CSET‘s civil and criminal penalties constituted multiple punishments for the same offense. Because the CSET imposes its civil and criminal penalties in two separate proceedings, we are not required to address the permissibility of “multiple punishments” imposed in the same proceeding. See, e.g., Kurth Ranch, 511 U.S. at 767, n. 21, 114 S.Ct. at 1947, n. 21; cf. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076-77, 23 L.Ed.2d 656 (1969). Rather, we must address whether the CSET‘s criminal and civil punishments violate the double jeopardy prohibition against a second prosecution for the same offense after conviction or acquittal because it imposes separate sanctions in successive proceedings.16
In determining whether the two offenses are the same, we apply the test first announced in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and recently revived in United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993).17 Where the same act or transaction constitutes a violation of two distinct 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 that the other does not. If each statute requires proof of an additional fact which the other does not,” the offenses are not the “same offense” for double jeopardy purposes. Blockburger, 284 U.S. at 304, 52 S.Ct. at 182. For example, a state violates double jeopardy protection when it punishes a defendant for a greater offense and a “lesser included offense.” That is, if the lesser included offense requires no proof beyond that required for the greater offense, the two are the “same offense” for purposes of the Double Jeopardy Clause.18 There are, however, similar offenses which do not violate the “same elements” test. Crimes which possess overlapping proof are not conclusively double jeopardies. The conduct proved may be “one and the same ” so long as each offense possesses “an element not embraced in the other.” Dixon, 509 U.S. at 704, 113 S.Ct. at 2860 (quoting Gavieres v. United States, 220 U.S. 338, 345, 31 S.Ct. 421, 423, 55 L.Ed. 489 (1911)).
Employing the “same elements” analysis, we find that the CSET‘s civil and criminal sanctions are punishments for the same offense. Both punishments require that a person deliver, possess or manufacture a controlled substance without having paid the CSET to be subject to prosecution. The only distinction between the punishments is found in the criminal sanction imposed for nonpayment in subsection (b) of
C. Which Jeopardy is Barred as the Second Jeopardy?
The determination of when jeopardy attaches is the lynchpin for concluding which jeopardy is barred as a second jeopardy. Crist v. Bretz, 437 U.S. 28, 38, 98 S.Ct. 2156, 2162, 57 L.Ed.2d 24 (1978). Consequently, we turn to the question of which CSET sanction was Bryant‘s first jeopardy and which was the second jeopardy prohibited by the Fifth Amendment. To resolve this question we must settle when jeopardy attaches in a civil proceeding. Of course, the U.S. Supreme Court has not considered this question since its decision just last year in Kurth. Thus, we write on largely a clean slate.19 The Court has, however, enumerated factors and policies underlying attachment
Although the Fifth Amendment declares that no person shall be twice put in jeopardy of life or limb, this constitutional prohibition is not against being twice punished, but is against twice being put in jeopardy. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). The Double Jeopardy Clause thus refers to the risk that a person will, for a second time, be convicted of the same offense. Id. The notion that “jeopardy” is “risk” is the very core of double jeopardy jurisprudence. Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975). Where a risk of a determination of guilt exists, for example, jeopardy attaches. See, e.g., Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975); see also Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970) (jeopardy is the risk of trial and conviction, not punishment). These cases are consonant with the well-known rule that jeopardy attaches when a jury has been impaneled and sworn. United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977).
Using the point at which there is a risk of conviction as the moment when jeopardy attaches for Fifth Amendment purposes assures that a person is not forced to endure the personal strain, public embarrassment, and expense of a trial more than once for the same offense. The Double Jeopardy Clause achieves this result by effectively dictating that the government cannot make multiple attempts to convict an individual for an alleged offense, “thereby subjecting him to embarrassment, expense 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 may be found guilty.” Benton v. Maryland, 395 U.S. 784, 796, 89 S.Ct. 2056, 2063, 23 L.Ed.2d 707 (1969); see also Breed, 421 U.S. at 530, 95 S.Ct. at 1786. Accordingly, it is essential to determine the time of attachment to protect promptly the accused‘s rights to finality of judgment, to minimization of exposure to the ordeals of trial and to continue with a chosen jury. Crist, 437 U.S. at 38, 98 S.Ct. at 2162; see also United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) (constitutional policy of finality inherent in Fifth Amendment). A court‘s conclusion that jeopardy attached at a specific point reflects its judgment that the constitutional policies underpinning the Double Jeopardy Clause are implicated at that stage of the proceeding. Jorn, 400 U.S. at 480, 91 S.Ct. at 554-55.
We conclude that jeopardy first attached when the Department served Bryant with its Record of Jeopardy Findings and Jeopardy Assessment Notice and Demand. At that moment, Bryant faced more than a risk of being found guilty; he had actually been found guilty. The assessment itself was a judgment against Bryant for the CSET and its 100 percent nonpayment penalty. This judgment enabled the Department to levy on Bryant‘s property immediately, and the Department exercised that authority the day after it issued Bryant‘s jeopardy assessment. To hold jeopardy attached at any point later than assessment would give the Department latitude to subject the taxpayer to the ordeal of assessment and levy multiple times for the same offense.20 That would be contrary to the constitutional policies underlying the Double Jeopardy Clause.
The dissent suggests that finding jeopardy attached at assessment forecloses prosecution. This is correct so long as the State prosecutes the defendant after the Department assesses the CSET. We know from oral argument on this cause, however, that the Department does not conduct independent investigations, searching for drug of
In any event, if there is any problem of coordination between the Department and law enforcement authorities (and what we were told at oral argument suggests there is none), the General Assembly may simply amend the statute to require the Department and prosecutor to consult with one another about who should go first.
The CSET assessment was Bryant‘s first jeopardy. The moment the jury was sworn in his criminal trial for nonpayment of the CSET a second jeopardy attached. Crist, 437 U.S. at 38, 98 S.Ct. at 2162. Accordingly, the Double Jeopardy Clause barred Bryant‘s criminal prosecution for nonpayment. We vacate the conviction for failure to pay the CSET.
Moreover, having concluded the CSET is a jeopardy, Bryant‘s convictions for growing more than 30 grams of marijuana and possessing less than 30 grams of marijuana were also subsequent jeopardies barred by the Double Jeopardy Clause. As we explain today in Clifft v. Indiana Dep‘t of State Revenue (1995) Ind., 660 N.E.2d 310, subsequent prosecutions under the criminal law for the same drug offenses twice places a defendant in jeopardy. We therefore vacate Bryant‘s criminal convictions.
III. The Warrantless Search of Bryant‘s Home
This case presents another novel issue unrelated to the CSET and double jeopardy. Bryant contends the trial court committed reversible error when it admit
The Fourth Amendment provides each person the right to be secure in his or her person, houses, papers and effects against unreasonable searches and seizures.
The State initially argues that its warrantless search was justified because a person inside Bryant‘s home may have been in need of aid. The U.S. Supreme Court and this Court have recognized a limited exception to the warrant requirement where an officer reasonably believes such circumstances exist. Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Tata v. State (1986), Ind., 486 N.E.2d 1025. In cases employing this exception, however, police possessed objective evidence that a violent crime had or was about to occur. Hayden, 387 U.S. 294, 87 S.Ct. 1642; Tata, 486 N.E.2d at 1028. There was no such evidence in this case. Officers did not find any evidence outside the home and did not hear any sound from the home which could reasonably lead them to conclude a person inside was in need of aid.22 The warrantless search of Bryant‘s home cannot be justified on these grounds.
Until today, this Court had not considered the State‘s second argument: that police may enter a home when they reasonably believe a burglary may be in progress or has recently been committed. Numerous state and federal courts, however, agree that these are exigent circumstances excusing warrantless entry. See, e.g., Reardon v. Wroan, 811 F.2d 1025 (7th Cir.1987); State ex rel. Zander v. District Court, 180 Mont. 548, 591 P.2d 656 (1979) (warrantless entry necessary to protect property and determine whether suspect was hiding inside where police believed burglary was in progress); United States v. Salava, 978 F.2d 320 (7th Cir.1992).
Our own Court of Appeals has also recognized this exception. B.P.O.E. #576, Elks Club v. State (1980), Ind.App., 413 N.E.2d 660. These courts and other authorities generally agree that such an entry and search does not offend the Fourth Amendment because the emergency circumstances surrounding a potential burglary justify the action. See 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 6.6(b), at 706-707 (2d ed. 1987). We agree that police may enter private property to protect that property when they reasonably believe the premises have recently been or are being burglarized.
Of course, any search conducted because police reasonably believe a burglary is in progress or has just occurred is limited to areas in which an intruder could reasonably conceal himself. Officers may not use the situation as an excuse to conduct a general search for evidence. State v. Crabtree, 655 S.W.2d 173 (Tenn.Crim.App.1983). A search beyond the exigencies presented would violate the Fourth Amendment.
In Bryant‘s case, Grant County Sheriff‘s deputies entered the home after receiving an emergency call from a neighbor who reported that a home alarm was sounding. When deputies arrived at the scene, they observed fresh pry marks on an open door. They entered the house and conducted a protective sweep of the residence.
The totality of these circumstances reveals that exigent circumstances justified the search. The sounding alarm, fresh pry marks and open door led police to a reasonable belief that a burglary was in progress or had recently occurred. The officers searched no more area than was reasonably necessary, but still discovered hundreds of marijuana plants in plain view. Admission of evidence found during the search was therefore not error.
IV. Admissibility of Bryant‘s Prior Convictions
During Bryant‘s trial, the State cross-examined him regarding his convictions for robbery and armed burglary thirty-five and forty years prior to his arrest. Bryant contends these convictions were too remote to be admissible.
The trial court has considerable latitude in admitting or rejecting evidence. Error in admitting evidence is not a basis for setting aside a conviction unless the erroneous admission was inconsistent with substantial justice or affects the substantial rights of the parties.
Under our common law evidentiary rules,23 a prior criminal conviction may
V. Sufficiency of the Evidence
We do not reweigh the evidence or judge the credibility of the witnesses when considering a sufficiency question on appeal. Alfaro v. State (1985), Ind., 478 N.E.2d 670. These are matters exclusively within the province of the jury. Rather, we consider the evidence most favorable to the verdict, along with any reasonable inferences therefrom, to determine whether a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Moore v. State (1987), Ind., 515 N.E.2d 1099. We affirm if each element of the crime is supported by substantial evidence. Loyd v. State (1980), 272 Ind. 404, 398 N.E.2d 1260, cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105.
Bryant challenges his misdemeanor conviction for possession of marijuana, claiming he was not in exclusive possession of the property in which officers found two bags of dried marijuana and over 300 marijuana plants. We need not address this issue based on our conclusion that the conviction was a second jeopardy barred by the Double Jeopardy Clause. We note, nonetheless, that Bryant owned the home in which the marijuana was found and confessed to police that the marijuana was his. Various other drug paraphernalia found in Bryant‘s home compounded the evidence of his guilt. We conclude there was no evidence which could reasonably lead the court to believe someone other than Bryant possessed the drugs.24 There was sufficient evidence to support Bryant‘s conviction.
Bryant also challenges his conviction for maintaining a common nuisance, contending the State failed to prove he committed a continuous or recurring violation sufficient to constitute the “maintenance” of a common nuisance. The Code required the State to prove Bryant knowingly or intentionally maintained a building that was used for unlawfully keeping, offering for sale, selling or delivering a controlled substance described in § 35-48-4-8.5 to convict him of maintaining a common nuisance.
At trial, the State presented evidence
VI. Conclusion
For the foregoing reasons, we vacate Bryant‘s convictions for failure to pay the CSET, growing and cultivating marijuana and misdemeanor possession. We affirm his conviction for maintaining a common nuisance.
DICKSON and SELBY, JJ., concur.
DeBRULER, J., concurs and dissents with separate opinion to follow.
SULLIVAN, J., dissents with separate opinion.
SULLIVAN, Justice, dissenting.
In Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), the United States Supreme Court held that a proceeding initiated by the state of Montana to collect a tax on the Kurth family‘s marijuana crop was prohibited by the Double Jeopardy Clause where the Kurths had already been convicted in criminal court for possession of those drugs. Today our court holds that the mere assessment of a similar tax by the Indiana Department of State Revenue prior to trial for a related drug possession or dealing offense cuts off the ability of county prosecutors to obtain drug convictions and courts to impose sentences. I believe the majority today extends the protection of the Double Jeopardy Clause further than the United States Supreme Court requires.26
I
While I do not agree in all the particulars, I do agree that the Indiana CSET bears enough resemblance to the Montana dangerous drug tax at issue in Kurth Ranch to implicate the Double Jeopardy Clause. While the courts of several other states have found their drug tax statutes sufficiently distinct from the Montana tax to withstand scrutiny under Kurth Ranch, e.g., State v. Gulledge, 257 Kan. 915, 896 P.2d 378 (1995); State v. Lange, 531 N.W.2d 108 (Iowa 1995); Milner v. State, 658 So.2d 500 (Ala.Civ.App. 1994); I find the majority‘s analysis persuasive that the CSET has punitive characteristics that subject it to the constraints of the Double Jeopardy Clause. Kurth Ranch, 511 U.S. at 767, 114 S.Ct. at 1945. Accord, Stennett v. State, 905 S.W.2d 612 (Tex.Ct.App.1995).
II
Concluding that the Indiana CSET is sufficiently similar to the Montana dangerous drug tax to subject it to the constraints of the Double Jeopardy Clause does not mean, however, that this is the same case as Kurth Ranch. Indeed, this case is different from Kurth Ranch in at least one very important way—in Kurth Ranch, the taxpayer had first been convicted of the underlying drug offense and sought to avoid the subsequent imposition of the drug tax on double jeopardy grounds; here the taxpayer has first been assessed the drug tax and seeks to avoid punishment for the underlying drug offense on double jeopardy grounds.
The majority contends that the order in which the state seeks to impose the criminal and tax punishments makes no difference—that the tax can be either a first or a second punishment, but in either case it is considered punishment for double jeopardy pur
III
The majority takes the position that Kurth Ranch requires that when a civil or administrative proceeding or sanction has the punitive characteristics that subject it to the constraints of the Double Jeopardy Clause, the established principles of Double Jeopardy jurisprudence apply regardless of whether the criminal prosecution and sentencing or the civil or administrative proceeding and sanction come first. Even if I agreed with the majority that Kurth Ranch prevents the state from prosecuting drug offenders if CSET has already been imposed—and I do not; see part II, supra—I can not agree with the way the majority seeks to implement this principle. The majority says that jeopardy attaches when the revenue department issues its assessment notice and demand. This cannot be right—the mere issuance of an administrative order cannot be sufficient to shut down completely the state‘s ability to prosecute drug offenders.
A
The Double Jeopardy Clause is violated by (i) a second prosecution for the same offense after acquittal or conviction (which I will
But because the concept of administrative or civil sanctions in general, and a tax in particular, constituting jeopardy is so new to the law,31 there is little guidance as to when prosecution jeopardy or punishment jeopardy attach in such context. Indeed, the majority‘s analysis on this point is quite abbreviated.32 Yet if we are to hold that at the moment of attachment, the state is interdicted from pursuing a criminal prosecution, ascertaining that moment of attachment becomes a vital inquiry.
I think we start with the basic principles that the mere filing of charges or conduct of pre-trial proceedings are not enough to implicate prosecution jeopardy and that the mere pronouncement of sentence is not enough to implicate punishment jeopardy. As noted above, prosecution jeopardy does not attach, in a jury trial, until the jury is sworn, and, in a bench trial, until the fact finder begins to take evidence. I would analogize the admin
B
Indiana Code § 6-7-3-13 (1993) provides that the Department of Revenue shall proceed to assess and collect CSET due under
The recent Colorado case of People v. Litchfield, 902 P.2d 921 (Colo.Ct.App.1995), cert. granted (Colo. Sep. 11, 1995), takes a similar approach to what I propose. Subsequent to defendants’ arrests but prior to trial, the Colorado revenue department assessed defendants with controlled substances taxes and penalties. Defendants objected to the assessment and requested an administrative hearing. At the time of trial, the department had taken no action on the objections. Defendants moved to dismiss the criminal charges on grounds that the tax assessment was punishment and the double jeopardy clauses prevented their being subjected to criminal punishment for the same conduct. Although the majority today would grant such motions, the trial court in Litchfield found that jeopardy had not yet attached to the assessment because there had been “no final administrative determination of defendants’ obligation to pay the tax and penalty.” Id. at 924. The Colorado appellate court agreed. Assuming that the tax was punishment under Kurth Ranch, the court pointed out that:
[T]here has been no hearing and thus no final determination of defendants’ liability for the assessed tax. In addition, defendants have not paid any money to the state nor has the state taken any steps to collect the tax obligation allegedly owed.
Accordingly, jeopardy has not yet attached and there has been no punishment by imposition of liability for the state tax. See U.S. v. Sanchez-Escareno, 950 F.2d 193 (5th Cir.1991) cert. denied, 506 U.S. 841, 113 S.Ct. 123, 121 L.Ed.2d 78 (1992) (no jeopardy attaches to preclude the government from prosecuting defendants for drug importation offenses until defendants actually pay civil fines assessed against them or until the government sues to collect on notes executed by defendants for payment of such fines).
Because defendants had not been subjected to punishment by imposition of a civil penalty for their alleged possession of marijuana, the trial court did not err when it found that the criminal prosecution did not subject them to multiple punishment in violation of the double jeopardy clauses.
Id. at 925. Note that the Colorado court finds no jeopardy attaching at least until a final determination of liability is made,34 an even broader construction of attachment than I propose. I think attachment at the time the fact finder begins to receive evidence is a slightly better approach because it
C
The assessment of CSET raises two additional issues. First, what are the double jeopardy implications, if any, if the CSET is not contested? And, second, what are the double jeopardy implications if the revenue department, proceeding as permitted under the statute and regulation, seizes, or levies on and sells, the taxpayer‘s property?
C-1
In cases where the taxpayer does not contest the assessment, I would find no prosecution jeopardy as nothing analogous to prosecution has occurred.36 However, under Kurth Ranch, I believe that CSET‘s punitive characteristics that implicate the Double Jeopardy Clause would cause punishment jeopardy to attach at the point the taxpayer began to pay the tax. Perhaps the case best illustrating this situation is United States v. Sanchez-Escareno, 950 F.2d 193 (5th Cir.1991) cert. denied, 506 U.S. 841, 113 S.Ct. 123, 121 L.Ed.2d 78 (1992), cited by the Colorado court in People v. Litchfield, supra. In Sanchez-Escareno, three individuals had been arrested and assessed large civil fines by United States Customs officials for possession and attempted importation of marijuana. Criminal indictments based on the same conduct followed. The defendants did not protest the civil fines but instead acknowledged them by executing promissory notes. However, the notes had not been paid nor had the government attempted to collect the notes. The district court dismissed the indictments, concluding that punishment jeopardy attached at the point the defendants executed the promissory notes. Sanchez-Escareno, 950 F.2d at 194–95.
The Fifth Circuit reversed, reasoning as follows:
Here, the government has yet to subject the defendants to trial at all or to exact any form of punishment whatsoever. Defendants are presently in the same position as someone who has been charged in two criminal proceedings, but has not yet been tried or punished in either. If the defendants actually pay the civil fines, then any subsequent criminal prosecution would be double jeopardy. See Ex parte Lange, 18 Wall. 163, 85 U.S. 163, 21 L.Ed. 872 (1873) (when defendant “fully suffered one of the alternative punishments to which alone the law subjected him, the power of the court to punish further was gone“). Likewise, if the government chooses to go forward with its prosecution of the defendants, jeopardy would attach when the jury is empaneled and sworn, as it would in any criminal case. See Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975). Finally, if the government attempts to collect on the notes, jeopardy would attach when the court begins to hear evidence in that action. See id. But at this point, defendants’ contentions
under the Double Jeopardy Clause are misplaced.
Sanchez-Escareno, 950 F.2d at 202-203.
C-2
Indiana statutes and regulations provide that if the CSET is not immediately paid, the department “may levy on and sell the person‘s property.”
[A]lthough the seizure of real property under the Forfeiture Act marks the beginning of the civil forfeiture process, the actual seizure itself has limited legal significance. The act of seizure neither extinguishes the ownership rights of claimants to the property, nor does it vest title in the State. The respective ownership rights of the parties remain unaltered until such time as the trial court enters its final judgment. Until final judgment is entered, the claimant has the opportunity to retain his ownership rights in the property. Common sense dictates that it is the deprivation of ownership, not the deprivation of the unencumbered use of the property, that determines when punishment for double jeopardy purposes occurs. The State‘s seizure of defendant‘s property, therefore, does not constitute punishment for double jeopardy purposes (see [United States v.] Stanwood, 872 F.Supp. [791,] 799 [ (D.Or.1994)]; [United States v.] Messino, 871 F.Supp. [1027,] 1032 [(N.D.Ill.1994)]), and the State‘s attempt to prosecute defendant under the Illinois Criminal Code does not contravene the double jeopardy clause.
Krizek, 271 Ill.App.3d at 538, 207 Ill.Dec. at 860, 648 N.E.2d at 316. I think this reasoning is sound and would find that the seizure of a taxpayer‘s property by the revenue department does not constitute punishment. However, the sale of that property is a more difficult question, one which should properly await a specific case in which the issue is argued.
C-3
Lest we become so consumed in thinking about drug taxes as punishment that we forget the general rule, it is worth recalling that the general rule is that a tax is not punishment and only becomes so when, “[t]aken as a whole,” it is “too far-removed in crucial respects from a standard tax assessment to escape characterization as punishment.” Kurth Ranch, 511 U.S. at 767, 114 S.Ct. at 1948. I mention this in the context of the two preceding sections because it is altogether plausible to me that a taxpayer may pay a portion of CSET assessed, or the revenue department may levy upon and sell an amount of property, which would merely reimburse the government for its actual costs arising from the taxpayer‘s criminal conduct. See id. at 767, 114 S.Ct. at 1945 (quoting United States v. Halper, 490 U.S. 435, 449-450, 109 S.Ct. 1892, 1902-03, 104 L.Ed.2d 487 (1989)). Such a payment or levy and sale would not be sufficient in my view to constitute punishment jeopardy. Only to the extent that the amount paid or levied upon and sold in excess of that deemed reasonably remedial should be considered to be punishment. Cf. United States v. Morgan, 51 F.3d 1105 (2d Cir.1995), cert. denied 516 U.S. 861, 116 S.Ct. 171, 133 L.Ed.2d 112 (1995) (double jeopardy not implicated in Office of Thrift Supervision accompanying bank fraud prosecution where defendant did not make threshold showing that civil sanction was “overwhelmingly disproportionate to the government‘s damages and expenses“); Ragin v. United States, 893 F.Supp. 570 (double jeopardy not implicated in civil forfeiture proceeding accompanying drug prosecution where “the forfeiture was proportional to the damages caused by Ragin‘s conduct, and the forfeiture was essentially remedial“).
If the majority is right that administrative imposition of a tax which is a punishment for double jeopardy purposes can cut off the state‘s ability to prosecute and sentence, then I think at a minimum the notion that jeopardy attaches at the time of assessment should be abandoned. Rather, I think analogies to the criminal procedure and the newly emerging precedents in the area of civil fines, forfeitures, and taxes indicate the following: First, a first prosecution should not attach until the accused contests the assessment and evidence is taken at an administrative hearing. At this point, the ability of the state to prosecute for the underlying criminal offense would be cut off. Second, if the accused does not contest the assessment such that no adjudicatory proceedings are commenced, there is no prosecution jeopardy and the state is free to proceed with criminal prosecution. Third, if the accused pays a portion of the assessment in a sufficient amount to constitute punishment,37 punishment jeopardy attaches and the ability of the state to sentence for the underlying criminal offense would be cut off.
Conclusion
I agree with the majority that the Indiana CSET has punitive characteristics that subject it to the constraints of the Double Jeopardy Clause. See part I, infra. But I find nothing in Kurth Ranch that compels us to prohibit the prosecution of alleged drug offenders merely because the revenue department asserts a CSET obligation on the part of the alleged offender first. See part II, infra.
Assuming the established principles of Double Jeopardy jurisprudence apply regardless of whether the criminal prosecution and sentencing or the imposition of CSET comes first, I would hold that (i) there is no prosecution jeopardy unless the taxpayer contests the assessment and a hearing is convened to adjudicate the protest, Litchfield, 902 P.2d at 925; prosecution jeopardy attaches when evidence is first presented to the trier of fact, Torres, 28 F.3d at 1465; and (ii) there is no punishment jeopardy unless the taxpayer pays at least a portion of the tax, Sanchez-Escareno, 950 F.2d at 202. See part III, infra. Certainly, there is nothing in Kurth Ranch that is inconsistent with this approach. In that case, Montana‘s tax authorities assessed the dangerous drug tax and the taxpayers contested the assessments in administrative proceedings. Kurth Ranch, 511 U.S. at 767, 114 S.Ct. at 1942-43. Thus more happened in Kurth Ranch than the mere initiation of a drug tax assessment proceedings—the taxpayers actually contested the assessment in administrative proceedings.
Based on the foregoing analysis, I would affirm Bryant‘s convictions. No claim is made that Bryant contested the assessment such that an adjudication of liability was conducted. As such, no prosecution jeopardy attached and the state was free to prosecute him on the criminal charges. Nor is any claim made that Bryant voluntarily paid a sufficient amount of the tax to constitute punishment.38 As such, no punishment jeopardy attached and the state was free to punish him on the criminal charges. I agree with the majority‘s analysis of the non-CSET issues in Bryant‘s appeal.
DeBRULER, Justice, concurring and dissenting.
In U.S. v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989) and Montana v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), the complaints had already been punished as a result of a prior criminal prosecution when the governments exercised their taxing and sanctioning authority. The Supreme Court ruled in both cases that the exercise of that authority could constitute a second punishment in violation of double jeopardy. Here, by contrast, the state exercised its taxing and sanctioning
To be sure, the legal signposts do not all point in the same direction. The large amount of the controlled substance excise tax and the fact that the tax is upon an illegal activity do tend to support the conclusion that it is a first jeopardy punishment under the Double Jeopardy Clause. However, those factors are lessened in value since the tax promotes the legitimate tax purposes of deterring a socially undesirable activity and raising revenue from what we know can be a highly profitable, clandestine, commercial enterprise. While the tax looks radically high as applied to marijuana, it looks less radical when applied to other controlled substances such as LSD and the opium derivatives, which are lighter in weight and more expensive on the black market.
In prosecutions of unlawful possession of other highly regulated substances such as liquor and cigarettes, it is ordinary for the criminal prosecution for possession of untaxed liquor or cigarettes to be viewed only as a first jeopardy even though the tax with penalty was paid during the pendency of the criminal proceeding. See
Finally, an assessment issued from within the revenue department operates under the majority opinion to foreclose exercise of the police power expressed in the tax statute via the local prosecuting attorney. That power is of the highest essential order, and I am reluctant to embrace such a shift of it, except in the clearest of circumstances.
Notes
Kurth Ranch, 511 U.S. at 767, 114 S.Ct. at 1941 (footnote omitted) (emphasis supplied).This case presents the question 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.
Id. at 767, 114 S.Ct. at 1942 (emphasis supplied) (the first proceeding was the criminal prosecution and the second was a civil forfeiture action).The third proceeding involved the assessment of the new tax on dangerous drugs.
United States v. Torres, 28 F.3d 1463, 1465 (7th Cir.1994) (citations omitted).Suppose the civil forfeiture gets to trial first. The United States will try to show that the money was used in an illegal drug transaction. At the beginning of the hearing, when evidence is first presented to the trier of fact in a proceeding seeking to impose a penalty for crime, jeopardy attaches.