COMMONWEALTH оf Pennsylvania, Appellee, v. WINGAIT FARMS, Appellant.
690 A.2d 222
Supreme Court of Pennsylvania.
Argued Oct. 15, 1996. Decided Feb. 26, 1997.
NIX, former C.J., did not participate in the consideration or decision of this matter.
NIGRO, J., concurs in the result.
David M. McGlaughlin, Philadelphia, for amicus Pa. Assoc. of Criminal Defense Lawyers.
T. Gary Gambardella, Doylestown, Stephen B. Harris, Warrington, Marc I. Rickles, Newtown, for appellee Linda Reitz.
John M. Popilock, Harrisburg, for amicus intervenor Office of Attorney Generаl.
Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE and NIGRO, JJ.
OPINION OF THE COURT
FLAHERTY, Chief Justice.
This is an appeal of an in rem forfeiture proceeding brought under to the Controlled Substances Forfeitures Act,
George Reitz purchased Wingait Farms for $300,000 in 1983. On May 7, 1992 Reitz was arrested on charges concerning the illegal рossession and sale of controlled substances. A temporary restraining order was entered on May 8, 1992 which enjoined Reitz from alienating the farm pursuant to
In the instant forfeiture matter, the Commonwealth produced evidence that Reitz used Wingait Farms to facilitate his illegal drug enterprise.2 After a jury trial, the farm and horses were forfeited to the Commonwealth.3 Reitz appealed to Commonwealth Court, which affirmed the forfeiture.
Reitz‘s first claim on this appeal is that the forfeiture proceedings were viоlative of state and federal prohibitions against double jeopardy. Reitz asserts that once he was convicted and sentenced for selling drugs, the Commonwealth could not initiate a new punitive proceeding to take his house and chattel for the same conduct which underlay his criminal conviction.
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.”
Four months before argument in this case, the United States Supreme Court decided United States v. Guy Jerome Ursery, — U.S. —, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996), in which civil forfeiture proceedings were brought against Ursery‘s house, alleging that the house was subject to forfeiture because it had been used to facilitate the processing and distribution of illegal drugs. Ursery settled the forfeiture claim by paying $13,250, but before the settlement was completed, Ursery was indicted for manufacturing marijuana in violation of
In reaching this holding, the Court emphasized that it was merely reiterating well-established precedent exemplified by Various Items of Personal Property v. United States, 282 U.S. 577, 51 S.Ct. 282, 75 L.Ed. 558 (1931) and United States v. One Assortment of 89 Firearms, 465 U.S. 354, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984). In Various Items, The Waterloo Distilling Corporation was ordered to forfeit a distillery, a warehouse and a denaturing plant because the corporation had conducted its business in violation of federal law. The corporation had been convicted of criminal violations prior to the forfeiture proceеdings and the criminal conviction was based on the same transactions as the civil forfeiture. The corporation argued that the forfeiture violated the Double Jeopardy Clause. The Supreme Court, however, unanimously held that the Double Jeopardy Clause was inapplicable to civil forfeiture proceedings.
Both the Various Items Court and the Ursery Court emphasized that at common law, a civil fоrfeiture could not be instituted until a criminal conviction had been obtained. The Ursery Court noted that if its predecessor court in Various Items had held that a statutory in rem proceeding was prohibited by a prior criminal proceeding, such a holding “would have been directly contrary to the common law-rule, and would have called into question the constitutionality of forfeiture statutes thought constitutional for over a century.” Ursery, — U.S. at —, 116 S.Ct. at 2141, 135 L.Ed.2d at 560.
In 89 Firearms the Court also unanimously held that an in rem forfeiture action brought pursuant to
Unless the forfeiture sanсtion was intended as punishment, so that the proceeding is essentially criminal in character, the Double Jeopardy Clause is not applicable. The question, then, is whether a § 924(d) forfeiture proceeding is intended to be, or by its nature necessarily is, criminal and punitive, or civil and remedial.
Ursery, — U.S. at —, 116 S.Ct. at 2141-42, 135 L.Ed.2d at 561, citing 89 Firearms, 465 U.S. 354, 362, 104 S.Ct. 1099, 1104-05, 79 L.Ed.2d 361 (1984). The Court utilized a two part analysis to determine whether the forfeiture was punitive. First, the Court considered whether the forfeiture was civil or criminal. Considerations were (1) the forfeiture action was in rem, and in rem actions have traditionally be viewed as civil proceedings; (2) the forfeiture action, in reaching the weapons, encompassed a broader range of conduct than an analogous criminal action; (3) the forfeiture had broad remedial aims, whiсh included discouraging unregulated commerce in guns and removing firearms which were intended for unregulated sale.
Second, the Court considered whether the forfeiture statute was so punitive in purpose or effect that it negated the congressional intent to establish a civil remedy. The Court considered several factors which it had used in other cases to determine whether а civil proceeding was punitive and found only the factor that the behavior was already a crime, but that this factor was insufficient to make the proceeding punitive. The Court held that the civil forfeiture was not punitive, but was “a separate civil sanction, remedial in nature.” Ursery, — U.S. at —, 116 S.Ct. at 2142, 135 L.Ed.2d at 562, citing 89 Firearms, 465 U.S at 366, 104 S.Ct. at 1107.
In reviewing the cases which have treated the matter of civil forfeitures, the Ursery Court remarked on the consistency of the holdings and noted that in each case, the holding was that “in rem civil forfeiture is a remedial civil sanction distinct from potentially punitive in personam civil penalties, such as fines, and does not constitute a punishment under the Double Jeopardy Clause.” Ursery, — U.S. at —, 116 S.Ct. at 2142, 135 L.Ed.2d at 562.
The Court then proceeded to review three of its recent cases, United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801 125 L.Ed.2d 488 (1993), and Department of Revenue v. Kurth Ranch,4 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994)
In sum, nothing in Halper, Kurth Ranch, or Austin, purported to replace our traditional understanding that civil forfeiture does not constitute punishment for the purpose of the Double Jeopardy Clause. Congress has authorized the Government to bring parallel criminal proceedings and civil forfeiture proceedings, and this Court consistently has found civil forfeitures not to constitute punishment under the Double Jeopardy Clause. . . . Halper dealt with in personam сivil penalties under the double Jeopardy Clause; Kurth Ranch with a tax proceeding under the Double Jeopardy Clause; and Austin with civil forfeitures under the Excessive Fines Clause. None of those cases dealt with the subject of this case: in rem civil forfeitures for purposes of the Double Jeopardy Clause.
Ursery, — U.S. at —, 116 S.Ct. at 2147, 135 L.Ed.2d at 567-68. The Court then considered the Ursery forfeiture under the two-part test used in 89 Firearms. First, the Court considered whether congress intended the proceedings to be civil or criminal. Second, the Court asked whether the proceedings were so punitive as to make them criminal,5 the
Applying this analysis to the case at bar, we must first determine whether the forfeiture was civil or criminal, and then whether the forfeiture was so punitive that it may not be viewed as civil in nature.
As to the first consideration, we note that the forfeiture statute at issue in this case requires that:
The proceedings for the forfeiture or condemnation of property, the sale of which is provided for in this chapter, shall be in rem, in which the Commonwealth shall be the plaintiff and the property the defendant.
Next, we consider whether the forfeiture was so punitive as to become criminal in effect or purpose. The United States Supreme Court has considered such factors as (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment—retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned. See 89 Firearms, 465 U.S. at 365 n. 7, 104 S.Ct. at 1106 n. 7, 79 L.Ed.2d at 370 n. 7, citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 567-68, 9 L.Ed.2d 644 (1963).
We conclude, therefore, that the in rem civil forfeiture in this case was neither punitive nor criminal for purposes of the Double Jeopardy Clause and
Next Reitz contends that he was entitled to a determination by either a judge or a jury that the forfeiture was an excessive fine. In In re: King Properties, supra, this court addressed the question of whether a forfeiture under the Controlled Substances Forfeitures Act is an excessive fine under either the Eighth Amendment to the United States Constitution or under Article I, § 13 of the Pennsylvania Constitution. We held that for purposes of the Excessive Fines Clauses, the Controlled Substances Forfeitures Act was punitive and that whether a forfeiture is an excessive fine does not depend upon the value of the thing forfeited, but on the relationship of the offense to the property which is forfeit. If the forfeited property was significantly used in the commission of the crime, “the item may be forfeited regardless of its value.” 535 Pa. at 331, 635 A.2d at 133.
In this сase, the trial court instructed the jury that the Commonwealth bore the burden of proving the connection between Reitz‘s illegal drug activities and the manner in which the property was used to facilitate these activities.6 No more
Finally, Reitz asserts that introduction of taped recorded telephone conversations at the forfeiture trial violated limitations on the use of such evidence imposed by the Wiretapping and Electronic Surveillance Control Act. In particular, Reitz claims that the wiretapping act permits electronic surveillance evidence to be admitted only in criminal proceedings.
Order of Commonwealth Court is affirmed.
CAPPY, J., files a concurring opinion.
CAPPY, Justice, concurring.
I join the majority opinion but write separately to emphasize the following. The majority holds that George Reitz received, in effect, a determination by the jury of whether the forfeiture of the property constituted an excessive fine. With that conclusion, I agree. I caution though that the portion of the jury instruction which the majority quotes at footnote 6 of the slip opinion does not adequately convey the relationship which is required between the property and the commission of the crime so as to render the property forfeit and so as to render the forfeiture non-excessive. The property must be significantly used in the commission of the crime. In re King Properties, 535 Pa. 321, 331, 635 A.2d 128, 133 (1993). Accordingly, the jury instruction ought to have stated:
You will be called upon to consider the following question: Are you satisfied by a fair prepоnderance of the evidence that George Reitz, Jr. significantly used the farm including the structures to facilitate any violation of the drug act.
Moreover, “significantly” should be defined as requiring a pattern of similar use of the property, in other words, a repeated use of the property to facilitate the violation of the law. “Otherwise significant property interests might become forfeit based on the unusual and unaccustomed incident.” In re King Properties, at 331, 635 A.2d at 133.1