UNITED STATES of America, Plaintiff-Appellee,
v.
9844 SOUTH TITAN COURT, UNIT 9, LITTLETON, COLORADO, with
all improvements, appurtenances, fixtures, and attachments
thereon, and the rents, profits, and proceeds therefrom;
Jewelry Located at 9844 South Titan Court, Unit 9,
Littleton, CO, named: All Jewelry, Cash, Cashier's Checks,
Money Orders, Traveler's Checks, Stock and Mutual Fund
Certificates, Bonds, Financial Instruments, Negotiable
Instruments, Cameras, Consumer Electronic Equipment
(including but not limited to VCRs, televisions, stereos, CD
players, personal computers, lap-top computers) and Cellular
Telephones, located at 9844 South Titan Court, Unit 9,
Littleton, Colorado; 9844 South Titan Court, Unit 10,
Littleton, Colorado, with all improvements, appurtenances,
fixtures and attachments thereon, and the rents, profits,
and proceeds therefrom; Jewelry Located at 9844 South Titan
Court, Unit 10, Littleton, CO, named: All Jewelry, Cash,
Cashier's Checks, Money Orders, Traveler's Checks, Stock and
Mutual Fund Certificates, Bonds, Financial Instruments,
Negotiable Instruments, Cameras, Consumer Electronic
Equipment (including but not limited to VCRs, televisions,
stereos, CD players, personal computers, lap-top computers)
and Cellular Telephones, located at 9844 South Titan Court,
Unit 10, Littleton, Colorado; 1277 South Memphis Street,
Aurora, Colorado, with all improvements, appurtenances,
fixtures, and attachments thereon, and the rents, profits,
and proceeds therefrom; Jewelry Located at 1277 South
Memphis Street, Aurora, CO, named: All Jewelry, Cash,
Cashier's Checks, Money Orders, Traveler's Checks, Stock and
Mutual Fund Certificates, Bonds, Financial Instruments,
Negotiable Instruments, Cameras, Consumer Electronic
Equipment (including but not limited to VCRs, televisions,
stereos, CD players, personal computers, lap-top computers)
and Cellular Telephones, located at 1277 South Memphis
Street, Aurora, Colorado; 4 Winged Foot Way, Aurora,
Colorado, with all appurtenances, fixtures, and attachments
thereon, and the rents, profits, and proceeds therefrom;
Jewelry Located at 4 Winged Foot Way, Aurora, CO, named:
All Jewelry, Cash, Cashier's Checks, Money Orders,
Traveler's Checks, Stock and Mutual Fund Certificates,
Bonds, Financial Instruments, Negotiable Instruments,
Cameras, Consumer Electronic Equipment (including but not
limited to VCRs, televisions, stereos, CD players, personal
computers, lap-top computers) and Cellular Telephones,
located at 4 Winged Foot Way, Aurora, Colorado; 17316 East
Rice Circle, Unit E, Aurora, Colorado, with all
improvements, appurtenances, fixtures, and attachments
thereon, and the rents, profits, and proceeds therefrom;
$2,034.66 In Account No. 2001772, United Bank of Highlands
Ranch, Colorado, plus interest, and all records relating
thereto; $26.31 In Account No. 46015777 Columbia Savings
Hampden Branch, Denver, CO, plus interest and all records
relating thereto; $2,800.00 Seized From 1277 South Memphis
Street, Aurora, CO; $13,050.00 Seized From Lisa M.
Tarasuik, incident to her arrest at No Frills Bar &
Grill; Honda Civic 1987 VIN # JHMCA5540HC04457, and
attachments thereon and accessories thereto, including but
not limited to all mobile and Cellular Telephones, and CB
Radios, Defendants.
Door & Trim Systems, Inc.; Eric May, individually and as an
officer and stockholder in Door & Trim Systems, Inc.;
Francis A. May, individually, and as an officer and
stockholder in Door & Trim Systems, Inc. and as legal
guardian for the minor children, Angela May and Jeffrey May, Claimants,
and
Phillip May, Claimant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Francis A. MAY, as an officer and stockholder in Door & Trim
Systems, Inc. and as legal guardian for the minor
children, Angela May and Jeffrey May,
Claimant-Appellant,
and
9844 South Titan Court, Unit 9, Littleton, Colorado, with
all improvements, appurtenances, fixtures, and attachments
thereon, and the rents, profits, and proceeds therefrom;
Jewelry Located at 9844 South Titan Court, Unit 9,
Littleton, CO., named: All Jewelry, Cash, Cashier's Checks,
Money Orders, Traveler's Checks, Stock and Mutual Fund
Certificates, Bonds, Financial Instruments, Negotiable
Instruments, Cameras, Consumer Electronic Equipment
(including but not limited to VCRs, televisions, stereos, CD
players, personal computers, lap-top computers) and Cellular
Telephones, located at 9844 South Titan Court, Unit 9,
Littleton, Colorado; 9844 South Titan Court, Unit 10,
Littleton, Colorado, with all improvements, appurtenances,
fixtures and attachments thereon, and the rents, profits,
and proceeds therefrom; Jewelry Located at 9844 South Titan
Court, Unit 10, Littleton, CO, named: All Jewelry, Cash,
Cashier's Checks, Money Orders, Traveler's Checks, Stock and
Mutual Fund Certificates, Bonds, Financial Instruments,
Negotiable Instruments, Cameras, Consumer Electronic
Equipment (including but not limited to VCRs, televisions,
stereos, CD players, personal computers, lap-top computers)
and Cellular Telephones located at 9844 South Titan Court,
Unit 10, Littleton, Colorado; 1277 South Memphis Street,
Aurora, Colorado, with all improvements, appurtenances,
fixtures, and attachments thereon, and the rents, profits,
and proceeds therefrom; Jewelry Located at 1277 South
Memphis Street, Aurora, CO, named: All Jewelry, Cash,
Cashier's Checks, Money Orders, Traveler's Checks, Stock and
Mutual Fund Certificates, Bonds, Financial Instruments,
Negotiable Instruments, Cameras, Consumer Electronic
Equipment (including but not limited to VCRs, televisions,
stereos, CD players, personal computers, lap-top computers)
and Cellular Telephones, located at 1277 South Memphis
Street, Aurora, Colorado; 4 Winged Foot Way, Aurora,
Colorado, with all appurtenances, fixtures, and attachments
thereon, and the rents, profits, and proceeds therefrom;
Jewelry Located at 4 Winged Foot Way, Aurora, CO, named:
All Jewelry, Cash, Cashier's Checks, Money Orders,
Traveler's Checks, Stock and Mutual Fund Certificates,
Bonds, Financial Instruments, Negotiable Instruments,
Cameras, Consumer Electronic Equipment (including but not
limited to VCRs, televisions, stereos, CD players, personal
computers, lap-top computers) and Cellular Telephones,
located at 4 Winged Foot Way, Aurora, Colorado; 17316 East
Rice Circle, Unit E, Aurora, Colorado, with all
improvements, appurtenances, fixtures, and attachments
thereon, and the rents, profits, and proceeds therefrom;
$2,034.66 In Account No. 2001772, United Bank of Highlands
Ranch, Colorado, plus interest, and all records relating
thereto; $26.31 In Account No. 46015777 Columbia Savings
Hampden Branch, Denver, CO, plus interest and all
records relating thereto; $2,800.00 Seized From 1277 South
Memphis Street, Aurora, CO; $13,050.00 Seized From Lisa M.
Tarasuik, incident to her arrest at No Frills Bar & Grill;
Honda Civic 1987 VIN # JHMCA5540HC04457, and attachments
thereon and accessories thereto, including but not limited
to all mobile and Cellular Telephones, and CB Radios, Defendants,
Door & Trim Systems, Inc.; Eric May, individually and as an
officer and stockholder in Door & Trim Systems,
Inc.; Phillip May, Claimants.
Nos. 94-1285, 94-1290.
United States Court of Appeals,
Tenth Circuit.
Feb. 5, 1996.
Rehearing Denied June 7, 1996.
Appeal from the United States District Court for the District of Colorado; Sherman G. Finesilver, Judge.
Brenda G. Grantland, Mill Valley, California, appearing for Appellants Philip May and Francis May.
Mark S. Pestal, Assistant United States Attorney (Henry L. Solano, United States Attorney, with him on the briefs), District of Colorado, Denver, Colorado, appearing for Plaintiff-Appellee United States of America.
Before SEYMOUR, Chief Judge, HENRY, Circuit Judge, and COOK*, Senior District Judge.
HENRY, Circuit Judge.
Claimants Philip and Frances May appeal a summary judgment granted to the government in a civil forfeiture proceeding initiated under 21 U.S.C. § 881 and completed after Philip May's conviction and sentencing on related drug charges. Ms. May challenges the district court's conclusion that her "innocent owner" defense did not survive the government's motion for summary judgment. Mr. May contends that forfeiture in a proceeding separate from his criminal trial constituted double jeopardy. There is merit in both arguments. We reverse in part the judgment of the district court.
BACKGROUND
I. The Criminal Case
Husband and wife Philip and Frances May owned an interior design business called Door & Trim Systems, Inc., in Littleton, Colorado. On October 29, 1991, equipped with $13,050 in cash and a loaded .45 caliber pistol, Philip May went to a bar with Lisa Tarasiuk, a former employee, to buy a kilo of cocaine. The seller turned out to be an undercover police officer.
After his arrest, Philip May consented to searches of his home and business properties. To obtain his consent, the police told him that he could stop the searches at any time. The police first took him to his home at 1277 South Memphis Street, where he let the police in and retrieved the keys to his business. The police then took him away and continued their search, which produced two guns, roughly 165 grams of cocaine, and $2,800 in cash.
The police then took Mr. May to his business property, Units 9 and 10 of 9844 South Titan Court. These were adjacent units in an industrial condominium; the Mays had removed the wall between the two and used the enlarged space to house tools and machinery. Mr. May again consented in writing to the search. The police again took him away, then searched Units 9 and 10. In Unit 9 they found roughly fifty-five grams of cocaine, a triple beam scale, and a cocaine grinder. They found nothing in Unit 10.
Philip May was indicted on January 28, 1992, and tried for possession of cocaine with intent to distribute, conspiracy to distribute, attempted possession with intent to distribute, and carrying a firearm during a drug offense. On June 18, 1992, he was convicted on all counts. On September 4, 1992, he was sentenced to ten years' imprisonment, a $12,500 fine, and an assessment for the cost of incarceration estimated at $100,000. Frances May was never arrested or charged with any crime.
II. The Forfeiture Case
The government recorded notice of lis pendens against the real property in March, 1992. The government filed a forfeiture action on July 8, 1992, after obtaining judgment in the criminal trial but before sentencing. Contending that the property was connected with the sale and distribution of controlled substances under 21 U.S.C. § 881(a)(6) and (a)(7),1 the government sought forfeiture of the following:
(1) The May home at 1277 South Memphis in Aurora, Colorado, jointly owned by Mr. and Mrs. May.
(2) The business property, Units 9 and 10 at 9844 South Titan Court in Littleton. Mr. and Mrs. May jointly owned Unit 10. Unit 9 was purchased with marital funds but was titled in Philip's name only.
(3) The $13,050 in cash that Philip had with him when he was arrested.
(4) The $2,800 in cash found in the May home.
Philip May, Frances May, and their son Eric filed claims to the property.
Before trial, Mr. May filed two pro se motions to suppress evidence found in his home and business property, arguing that he was unable to stop the searches as promised once the police took him from the search sites. The court denied the motions.
The government then moved for summary judgment as to all the property. Frances May opposed the motion, alleging that she was an innocent owner, and filed her own motion for summary judgment as to her claimed share of all the above items. Philip May also opposed the government's motion, arguing that Unit 10 was not forfeitable, and that forfeiture in addition to his criminal penalties would constitute excessive punishment under the Eighth Amendment. On April 27, 1994, the district court granted summary judgment for the government as to all the property listed above. Mr. May filed a notice of appeal on June 17, 1994. Mr. May later filed a supplemental brief in which he argued for the first time in the litigation that the civil forfeiture proceeding constituted double jeopardy.
DISCUSSION
I. Frances May's Claims to the Property
We turn first to Ms. May's contention that she was an innocent owner.2 In opposition to the government's motion for summary judgment and in support of her own motion, she first argued that she had a property interest in the following: her home, Units 9 and 10, the $13,050 Mr. May was carrying when arrested, and the $2,800 the police found in their house. She asserted an interest in the home and Unit 10 based on her joint ownership of those properties. She asserted a half interest in Unit 9 as marital property, alleging that it was purchased with marital funds and had been erroneously titled in Mr. May's name only. She also claimed half of the $13,050 as marital property, arguing that it was derived from funds originally deposited in their joint account. Finally, she asserted sole ownership of the $2,800, arguing that it had been her share of the proceeds from the sale of a jointly owned vehicle.
She accompanied her motion with various documents, including an affidavit asserting that her husband's cocaine trafficking developed in connection with an extramarital affair he was having with Lisa Tarasiuk, and that she had knowledge of neither the affair nor her husband's involvement in drug trafficking. Aplt.App. vol. II, at 286-88. In addition to her claim of innocent ownership, she also asserted that Unit 10 was not forfeitable at all because no contraband was found there.
The district court denied entirely Ms. May's motion for summary judgment, holding that she had no interest in the marital property and that she had failed to establish her innocent owner defense by a preponderance of the evidence. By the same order, the court granted summary judgment for the government as to all items of defendant property.
The court dealt with Ms. May's innocent owner defense in its discussion of Units 9 and 10:
Claimant Frances May asserts an innocent owner's defense in the properties that she has an "ownership" interest in. Further, she asserts that she owns 50% of Lot 10 [sic] based on her marriage to Mr. May. While the Court is sympathetic to this argument, based on Colorado's marital property law, claimant Frances May is unable to claim an ownership interest in property where title is held only in her husband's name.
An unvested or inchoate interest in marital property is insufficient to constitute ownership under 21 U.S.C. § 881. Under Colorado law, a spouse's right to the other spouse's property does not vest until death or divorce. In Re Questions Submitted by United States District Court, [
....
A spouse under Colorado law is free to dispose of his or her property in any manner as no interest in the other spouse vests until divorce. Thus, she cannot maintain a claim for any interest the properties [sic]. Claimant Frances May is not entitled to summary judgment on her innocent-owner defenses as they have not been established by a preponderance of the evidence.
Order Regarding Cross Motions for Summary Judgment at 11-12 (citation omitted). The court made no explicit finding on Ms. May's interest in her home, although it acknowledged that the property was jointly titled. Id. at 12. The district court concluded that the home was entirely subject to forfeiture because of its role in illegal activities and because Ms. May had failed to show innocent ownership by a preponderance of the evidence. The court also held that Ms. May had no interest in the $13,050. As to the $2,800 she claimed as her sole property, the court found that the money was drug-connected--as either proceeds, purchase money, or a form of facilitation--and that Mr. May was the money's sole owner. Id. at 13-14.
On appeal, we review the grant or denial of summary judgment de novo, applying the same legal standard used by the district court pursuant to Fed.R.Civ.P. 56(c). Universal Money Ctrs., Inc. v. AT & T,
In a § 881 forfeiture proceeding, the government bears the initial burden of showing probable cause that the property to be forfeited was used illegally. United States v. $149,442.43 in United States Currency,
Ms. May contends on appeal that the court erred in several respects when it ruled on her innocent owner defense. First, she argues that she had a real, legally enforceable interest in the marital property (the $13,050, which she traced to funds withdrawn from their joint bank account, and Unit 9, which was allegedly purchased with marital funds). Second, she argues that the court erroneously rejected her innocent owner defense as to her interest in the jointly titled property (her home and Unit 10).3 Third, she argues that a real controversy existed, precluding summary judgment, as to the ownership of the $2,800, or alternately that the money was Mr. May's but was also marital property.
A. Marital Property--Unit 9 and the $13,050
Ms. May bases her claim to Unit 9 and the $13,050 on allegations that both, although not titled in her name, were derived from marital funds. She does not dispute the axiom that under Colorado law a spouse has only an "inchoate" interest in marital property titled in the other spouse. However, she contends that her inchoate interest is one that Congress meant to protect. She also contends that Colorado law allows a spouse's interest in marital property to vest at the commencement of a civil forfeiture action. Neither argument is persuasive.
1. Congressional Intent to Protect Marital Interests
Ms. May's argument from congressional intent is based on the legislative history of the 1984 amendment to § 881(a)(6) that established the innocent owner defense. See Joint Explanatory Statement of Titles II and III, Pub.L. No. 95-633, 95th Cong., 2d Sess., reprinted in 1978 U.S.C.C.A.N. 9518, 9522 (stating that "[t]he term 'owner' should be broadly interpreted to include any person with a recognizable legal or equitable interest in the property seized"). However, this appeal to legislative history incorrectly presupposes that Congress, not the state, defines which "legal or equitable" interests are "recognizable." On the contrary, federal courts must look to state law in determining what property interests a claimant may assert. United States v. 1980 Lear Jet,
2. Exceptions to Colorado's Rule on Marital Property
As the district court noted, a Colorado spouse has only an inchoate interest in marital property titled in the other spouse's name. In re Questions,
Ms. May nonetheless argues that her inchoate interest is legally protected as an exception to Colorado's general rule on marital property, citing the following: "During the marriage, and absent any divorce action, the parties have their separate property and, possibly subject to an exception or two, can dispose of it as he or she desires.... That right, prior to the dissolution action and possibly subject to an exception or two, is completely inchoate." In re Questions,
In re Questions is concerned with characterizing for tax purposes a court-ordered transfer of property from husband to wife following divorce, and provides no explicit guidance on whether Colorado would countenance civil forfeiture among the "exception or two" to the rule stated above. However, the In re Questions court stated earlier in its opinion that it was following the "philosophy" of two Oklahoma cases, Collins v. Okla. Tax Comm'n,
We conclude that the "exceptions" referred to in In re Questions were founded on the court's reading of Sanditen and encompass only situations evincing one spouse's fraudulent attempt to deprive the other of a legal right. Cf. Love v. Olson,
B. Joint Property--The Home and Unit 10
As to the jointly titled property--the home and Unit 10--we reverse the summary judgment for the government and remand for further proceedings. First, we conclude that both properties are potentially forfeitable and reject Ms. May's contention that Unit 10 is not forfeitable simply because no contraband was found there. However, taking the pleadings and supporting documents as a whole, we conclude that there was a genuine issue of fact, precluding summary judgment, as to Ms. May's innocent owner defense.
1. Unit 10--Nexus with Illegal Activity
Ms. May first contends that Unit 10 is not forfeitable at all because it is a "lot or tract"6 separate from Unit 9, where the only contraband at the business property was found. She argues further that the district court found Unit 10 forfeitable by using a "subjective" standard that impermissibly considered how the Mays used the property instead of how it was legally divided.
Property is forfeitable under § 881(a)(7) whenever there exists a "sufficient nexus" between the property and the illegal activity. $149,442.43 in United States Currency,
2. Ms. May's Innocence
We are left with the factual question of Ms. May's innocence in relation to the illegal activity that would otherwise support forfeiture of her interest in the home and Unit 10. Ms. May contends that the government actually conceded Ms. May's innocence, that even if it did not the district court erred in granting summary judgment for the government, and that the evidence warranted summary judgment for her, not the government.7 We agree only that the government should not have received summary judgment as to the joint property.
First, it is simply untrue that the government conceded Ms. May's innocence. While the government never presented a substantial case against Ms. May, it did not need to. Ms. May bore the burden of establishing her defense. Despite the statement in the pretrial order, under "Claims and Defenses of Frances May," that her innocent ownership of the property was "undisputed," Aplt.App. vol. II, at 326, there is no such stipulation by the government in the order. Thus, Ms. May retained a claimant's normal burden of establishing innocent ownership by a preponderance of the evidence.
The record does, however, provide evidence from which a finder of fact could infer Ms. May's innocence. First, Ms. May's affidavit plausibly characterizes Mr. May's drug trafficking as an outgrowth of his presumably covert infidelity, although the affidavit stops short of altogether denying knowledge of the presence of drugs. Second, Ms. May's innocence is supported by testimony elicited from Mr. May at the criminal trial and proffered by the government itself in its motion for summary judgment:
Q: So you didn't tell [Ms. May] the truth about what you were doing?
A: No, ma'am, I certainly did not.
Q: Did you tell her you were dealing cocaine?
A: No, ma'am.
Q: Did you tell her you were having an affair with Lisa?
A: No, ma'am, I did not.
Q: All right. So at least to your wife, you haven't been truthful?
A: I would definitely agree with that, yes, ma'am. During this particular time period, yes.
Aplt.App. vol. II, at 252. Taking this evidence in the light most favorable to the nonmoving party, we conclude that there was a genuine issue, precluding summary judgment, as to how much Ms. May knew about the illegal activity in her home and business property. Thus, the district court erred in granting summary judgment for the government as to those interests.
C. The $2,800
Ms. May next argues that the court erred in granting summary judgment for the government as to the $2,800 in cash that the police found in the May's home, either because it was marital property or because a real controversy existed as to the ownership of the money. Having disposed of the marital property issue, we address whether a real controversy existed as to ownership.
The government's case against the $2,800 consisted of testimony from the criminal trial and a detective's affidavit presenting circumstantial evidence that Mr. May kept large amounts of cash on hand for cocaine purchases and had furnished cocaine for his former employee to sell. See Aplt.App. vol. I, at 70, 77, 79, 82, 160, 167-182. Although the testimony does not directly refer to the $2,800, it allows the inference that the sum was part of Mr. May's purchase money stockpile.
In opposition, Ms. May stated in an affidavit that the $2,800 was her share of the proceeds from the sale of a jointly owned van, and that she alone used the money. Aplt.App. vol. II, at 287-88. The government responded by offering a deposition of Frances May in which she admitted that her husband knew of the money and had access to it. Aplt.App. vol. II, at 319-23. The court found that Mr. May was the sole owner of the money and that it was involved in the trafficking of cocaine as proceeds, as purchase money, or otherwise.
Construing the evidence in the light most favorable to Ms. May, we conclude that her affidavit and deposition sufficed to create genuine issues as to the ownership of the $2,800, its connection to illegal activity, and Ms. May's knowledge of any connection that may have existed. It is true that a claimant cannot create such a controversy with an unsubstantiated assertion of an innocent ownership defense. See United States v. One Lot of United States Currency ($68,000),
D. Conclusion--Ms. May's Claims to the Property
In sum, we reach the following conclusions regarding Ms. May's various claims. As to Unit 9 of the business property, Ms. May had no enforceable interest therein under Colorado law. As to the $13,050 Mr. May was carrying when he was arrested, the same is true. As to the Mays' home, Ms. May had an interest arising from her joint tenancy, and neither she nor the government was entitled to summary judgment thereon. As to Unit 10, which was also jointly titled, the same is true. As to the $2,800 found in the Mays' home, there is a genuine dispute as to ownership that precludes summary judgment for either party.
II. Philip May's Double Jeopardy Argument
Mr. May suffered several adverse rulings from which he appeals in the claimants' opening brief: the district court's refusal to grant his motion to suppress evidence obtained in the search of his home and business, the court's conclusion that Unit 10 was forfeitable,8 and the standard applied by the court in determining whether the forfeiture was excessive. In a supplemental brief, Mr. May also asserts for the first time in the litigation that the civil forfeiture amounted to double jeopardy. If successful, this last argument would provide Mr. May more complete relief than any of the others since it could entirely bar forfeiture of his interest in the property. We therefore begin with double jeopardy, and ultimately conclude that forfeiture of Mr. May's property in a second, civil proceeding is barred to the extent that it is based on conduct for which Mr. May has already been prosecuted.
A. Appealability
As a threshold matter, the government asserts that Mr. May cannot raise his double jeopardy argument for the first time on appeal. It points to our general rule that, absent manifest error, an issue will not be considered if raised for the first time on appeal. See Hicks v. Gates Rubber Co.,
The rule against considering new issues on appeal is subject to exceptions required in the interest of justice. Hormel v. Helvering,
We also reject the government's contention that Mr. May's failure to assert his double jeopardy argument in district court amounted to a voluntary "waiver" of his rights under the Double Jeopardy Clause. It is true that double jeopardy is subject to knowing and intelligent waiver, for example in the context of a plea bargain. Ricketts v. Adamson,
B. Civil Forfeiture as Punishment
1. Traditional Double Jeopardy Principles
The Fifth Amendment guarantee against double jeopardy "has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce,
In this case the government first obtained a conviction against Philip May, then sought forfeiture of his property on the basis of the conduct for which Mr. May had already been convicted. In its motion for summary judgment, the "undisputed facts" on which the government based its case included the facts on which Mr. May had been convicted, plus the facts establishing a relationship between the defendant property and the illegal activity. Aplt.App. vol. I, at 4-7. Had this been a criminal forfeiture proceeding brought under 21 U.S.C. § 853, the double jeopardy problem would be apparent. The forfeiture proceeding would have been a second jeopardy, resulting in a second punishment, for the same offense.
However, the traditional view of civil forfeitures exempted them from double jeopardy analysis because the proceeding, being civil, could not be a jeopardy, and because forfeiture of the defendant property was not a punishment.11 Mr. May urges that this view can no longer be maintained in the wake of the Supreme Court's decisions in United States v. Halper,
2. Recent Cases Construing Civil Forfeiture as Punishment
In Halper, the government sought civil sanctions against a former medical service manager who had already been criminally charged and convicted for filing sixty-five inflated Medicare claims that each charged $12.00 for what was really a $3.00 procedure. In the civil proceeding, the government sought more than $130,000 under a statute that provided for a $2,000 penalty plus double damages for each violation, and the manager challenged on double jeopardy grounds. The Court rejected the government's argument that double jeopardy could not apply in a civil case. Halper,
Austin, although decided on Eighth Amendment grounds, underscored the need to pierce the civil-criminal veil in determining the scope of constitutional protections in forfeiture cases. The owner of a body shop and mobile home pleaded guilty to a charge of selling cocaine, then challenged as an excessive fine the subsequent forfeiture of his house and mobile home pursuant to 21 U.S.C. § 881(a)(4) and (7). The Court conducted a historical review of the purposes behind in rem forfeitures in general and concluded that they have been "understood, at least in part, as punishment." Austin, 509 U.S. at ----,
Guided primarily by Halper and Austin, the Ninth Circuit held in United States v. $405,089.23 United States Currency,
The last case on which Mr. May relies is Kurth Ranch. After the Kurths were convicted of growing marijuana on their ranch, the State of Montana sought to collect a $1,000-per-ounce tax on the harvested marijuana, and the Kurths challenged the assessment on double jeopardy grounds. The Supreme Court first cited Halper 's "unequivocal statement" that "labels do not control in a double jeopardy inquiry," Kurth Ranch, --- U.S. at ----,
In the wake of Kurth Ranch, Judge Easterbrook agreed, in dicta, with the Ninth Circuit's conclusion that civil forfeiture following a criminal trial is a punishment for double jeopardy purposes.
[I]f, as Kurth Ranch holds[,] a civil proceeding to collect a monetary penalty for crime counts as an independent "jeopardy," it does not require much imagination to see the problem. Civil and criminal proceedings are not only docketed separately but also tried separately, and under the double jeopardy clause separate trials are anathema.
United States v. Torres,
We are constrained by Halper, Austin, and Kurth Ranch to conclude that forfeiture under § 881(a)(7) constitutes punishment as far as Mr. May is concerned. Austin makes it clear that forfeitures under § 881(a)(7) are punishment, and we agree with the Ninth Circuit that there is no difference between the excessive fines and the double jeopardy definition of punishment. $405,089.23 United States Currency,
3. § 881(a)(6) Forfeiture as Punishment
We must consider separately the forfeiture of Mr. May's interest in the $13,050 he carried to his ill-fated drug deal and the $2,800 found in his home. The district court held the $13,050 to be forfeitable on the grounds that it was furnished or intended to be furnished for the purchase of controlled substances, and was intended to facilitate an illegal drug activity. The district court held the $2,800 to be forfeitable on the grounds that it was either drug proceeds or was to be furnished for the purchase of controlled substances or to facilitate drug trafficking. See 21 U.S.C. § 881(a)(6).
The forfeiture of these two sums involves two issues not directly addressed in the three Supreme Court cases on which we rely above. First, they were forfeited under § 881(a)(6), which was not addressed in Austin. Second, both sums were either held by the court or asserted by the government to be drug proceeds, and the government contends that forfeiture of such proceeds is never punishment.
As to Austin 's silence on § 881(a)(6), we see no reason why that provision--at least where the money forfeited thereunder is not drug proceeds--should be analyzed any differently than § 881(a)(7). The government apparently concedes this point, since it suggests no reason to treat that section differently in terms of its intent, effect, or legislative history.
Instead, the government saves its ammunition for the drug proceeds argument. Here the government relies on United States v. Tilley,
Alexander, Bilzerian, and Tilley all hold in different statutory contexts that forcing a wrongdoer to disgorge ill-gotten gains is never punishment, and so cannot violate the Double Jeopardy clause. Alexander involved a civil RICO forfeiture and a claimant who had previously been convicted on criminal racketeering charges. Considering various elements of the forfeiture for excessive fines purposes, the Eighth Circuit held that "[f]orfeiture of proceeds cannot be considered punishment, ... as it simply parts the owner from the fruits of the criminal activity." Alexander,
Tilley is the only one of these cases to address the forfeiture of illegal proceeds under § 881. There the Fifth Circuit addressed the issue of whether the forfeiture of drug proceeds under § 881(a)(6) should be considered punishment for Eighth Amendment purposes. The court reasoned that such forfeiture was purely remedial, first because it was repayment for the social cost of the illegal activity and the government's costs in investigating and prosecuting such activity, id. at 298-99, and second because the possessor of drug proceeds "has no reasonable expectation that the law will protect, condone, or even allow, his continued possession of such proceeds," id. at 300. Thus, the seizure of drug proceeds is "more closely akin to the seizure of the proceeds from the robbery of a federal bank than the seizure of lawfully derived real property." Id.
The difficulty with the "repayment to society" argument is that it applies as readily to all § 881 forfeitures as it does to the forfeiture of drug proceeds. If the "remedy" effected by forfeiture is understood broadly enough to encompass not only direct governmental losses, as with Medicaid fraud in Halper, but also the nearly incalculable "social costs" of an entire class of illegal conduct, then all forfeitures are purely remedial. This conclusion is inconsistent with the Supreme Court's analysis in Austin.
Tilley 's second line of analysis, the analogy of drug proceeds to the loot from a bank robbery, comprises both a legal and an "equitable" aspect. Legally, just as one cannot own contraband, see, e.g., Trupiano v. United States,
Tilley also rests on the equitable argument that the forfeiture of drug proceeds simply denies the claimant the benefit of his or her misconduct. See Rex Trailer Co. v. United States,
Finally, Tilley is inconsistent with the analysis the Supreme Court has already applied to § 881. In Austin, the Court held § 881(a)(4) and (7) to be punishment based on "the historical understanding of forfeiture as punishment," 509 U.S. at ----,
In addition, we note a further difficulty with Tilley 's drug proceeds exception. Drug proceeds are also forfeitable under the criminal forfeiture statute. 21 U.S.C. § 853(a)(1). If the forfeiture of drug proceeds under § 881(a)(6) were held not to be punishment, and if the civil and criminal labels are indeed not dispositive of the double jeopardy issue, there would be no principled way to avoid applying Tilley 's reasoning to § 853(a)(1). Criminal forfeiture could then be imposed in a proceeding separate from the criminal trial without constituting double jeopardy, as long as drug proceeds only were forfeited.13
For the above reasons, we reject the government's invitation to analyze the drug proceeds portion of § 881 separately from the rest of the statute. Forfeiture of Mr. May's interest in the $13,050 and $2,800 was punishment for double jeopardy purposes whether those sums were forfeited as drug proceeds or otherwise.14
Having determined that the forfeiture in this case was punishment, we must next consider whether the Double Jeopardy Clause bars the forfeiture to the extent that it was based on conduct already punished criminally. Mr. May says it does, and contends that he is entitled to an immediate judgment to secure the full extent of his interest in the forfeiture res. The government responds in two ways. First, it argues that the forfeiture proceeding is not a second jeopardy. Next, the government argues that the forfeiture is not a jeopardy for the same offense. We reject the former argument completely, and accept the latter only insofar as the record indicates that forfeiture can be based on conduct for which Mr. May was not previously prosecuted.
C. The Forfeiture Proceeding as a Second Jeopardy
The government first contends that the forfeiture proceeding was not a second jeopardy. It bases its position on United States v. Millan,
We note initially that the authority for Millan 's distinction between "proceeding" and "prosecution" consists entirely of one sentence from Ohio v. Johnson,
Moreover, Millan and progeny are also implicitly inconsistent with the approach taken in Halper and Kurth Ranch. In both cases the civil proceedings that followed the criminal convictions were arguably part of a "single, coordinated prosecution," yet neither case took the view that two proceedings could constitute one prosecution. Moreover, the Court's choice of terminology in those cases is inconsistent with such a view. In Halper, the Court used the term "prosecution" synonymously with "proceeding." See, e.g., Halper,
The practical result, as Judge Easterbrook noted, is that two trials mean two jeopardies. "In Kurth Ranch itself the tax proceeding was begun at the same time as the criminal prosecution; the Supreme Court did not think the fact that the two were pending contemporaneously mattered." Torres,
Finally, Millan also underestimates the policy concerns that underlie the Double Jeopardy Clause. The Double Jeopardy Clause protects defendants against more than a prosecutor's dissatisfaction with the results of the first trial. The clause is implicated whenever a defendant is obliged to "marshal the resources and energies necessary for his defense more than once for the same alleged criminal acts." Abbate,
In the present case there is certainly no indication that the government's prosecution was impelled by improper motives. The government points out that it was procedurally constrained to institute two actions in order to do everything to Mr. May that the statutes appear to allow, and it is certainly true that attempts to punish both civilly and criminally must, in our legal system, give rise to separate proceedings. Nonetheless, the government's good faith does not make two proceedings a single jeopardy.
As the Ninth Circuit has observed, Millan "contradicts controlling Supreme Court precedent as well as common sense." $405,089.23 United States Currency,
D. The Forfeiture Proceeding as a Jeopardy for the Same Offense
The government's next contention is that, even if the instant forfeiture is punishment, the civil proceeding that imposed it was not a jeopardy for the same offense. First, the government contends that at least some of the property is forfeitable on the basis of acts for which Mr. May was never tried. Next, the government contends that the elements of civil forfeiture differ from those of the criminal offense and are thus different offenses for double jeopardy purposes. Under Blockburger v. United States,
1. Conduct Not Previously Prosecuted
As to the argument from unindicted conduct, it is axiomatic that a party cannot rely on the Double Jeopardy Clause to avoid punishment for conduct for which he was never previously placed in jeopardy. In this case, the court found that one possible basis for forfeiture of the $2,800 was the possibility that it was proceeds from drug sales. The government also made the same argument, with supporting evidence, as to the $13,050, although the court did not explicitly predicate forfeiture thereon. We agree that basing forfeiture on previous conduct for which Mr. May was never indicted cannot constitute double jeopardy. See United States v. One 1978 Piper Cherokee Aircraft,
In light of our earlier discussion of the ownership of the $2,800, we hold that Mr. May's interest in that sum may be forfeited on remand if he is found to have had any ownership interest therein and if the money is found to be proceeds from previous, unprosecuted sales. As to the $13,050, the record is insufficient to affirm summary judgment for the government on this alternative theory, but we hold that that sum may also be forfeited on remand to the extent that it is found to be proceeds from previous, unprosecuted sales. However, the record is devoid of any indication by the government that either the house or the business property are forfeitable based on unprosecuted conduct. Thus, we must turn to the government's more ambitious contentions.
2. Previously Prosecuted Conduct
The government next argues that civil forfeiture, even when based on precisely the same conduct previously used to establish criminal charges, cannot violate the Double Jeopardy Clause; either the criminal penalty and the forfeiture are not punishment for the "same offense," because under Blockburger the forfeiture "offense" and the crime each require proof of a fact that the other does not, or they do punish the same offense, but with congressional approval. Neither argument is persuasive.
a. Does § 881 Define an Offense?
We note first that the government's Blockburger argument presupposes that § 881 defines an offense as well as a punishment--presumably, the "offense" of being the owner of guilty property. This proposition is by no means self-evident; in general, a statute may very well create a punishment without defining a separate offense. In Kurth Ranch, for instance, the Court did not find itself obliged to consider whether Montana's drug tax statute defined a separate offense; it was enough for double jeopardy purposes that the statute imposed a second punishment for offenses defined elsewhere. Similarly, 21 U.S.C. § 853, the criminal forfeiture statute for drug offenses, merely prescribes a punishment, not a separate offense. Libretti v. United States, --- U.S. ----, ----,
Moreover, the idea that § 881 itself defines a separate offense is at odds with Austin 's review of that section's legislative history. Although at common law the forfeiture of guilty property was sometimes described as a "penalty for carelessness," Austin, 509 U.S. at ----,
The foregoing considerations indicate that, with respect to claimants previously prosecuted for the illegal activity occasioning the forfeiture, § 881 defines a punishment, but not a separate offense. However, even if a second offense had been created, we conclude below that prosecution therefor in a second, postconviction proceeding is barred under Blockburger.
b. Blockburger
Under Blockburger, two offenses are different only if each contains an element not present in the other. Dixon, 509 U.S. at ----,
The situation appears to be similar here. Property is forfeit under § 881(a) whenever it has the requisite relationship to a violation of title 21, chapter 13, subchapter I. Thus, if any provision of § 881(a) defines an offense, it is one with two elements: the underlying drug violation and the use of property in connection therewith. All drug violations in subchapter I, and a fortiori their underlying elements, would therefore be contained within § 881(a) as lesser included offenses of the forfeiture "offense." Under Harris and its progeny such an offense may not be prosecuted once a jeopardy for the lesser included offense has occurred.
Against this reading of § 881(a), the government argues that the forfeiture provision passes the Blockburger test because, unlike the drug crime, it has no mens rea element, does not require proof of an individual claimant's unlawful conduct, and may give rise to a forfeiture when there are no claimants at all. Of course, these arguments tend to undermine the government's basic position by suggesting that § 881 does not define an offense at all. In addition, they overlook the fact that the government must show mens rea and unlawful conduct on someone's part, or the forfeiture will fail for lack of an underlying drug crime. But more fundamentally, these arguments apply Blockburger at too abstract a level. The government's argument is that forfeiture in general need not be based on any particular past offense by a particular claimant, so forfeiture does not punish the "same offense" when in a particular case it is based squarely on such a past offense. However, in applying Blockburger, courts are not so free to ignore the facts on which prosecutions are based. For example, felony murder need not be based on any particular felony, yet in Harris the Court considered a felony murder conviction to bar prosecution for the underlying felony of robbery.
c. Congressional Intent
Finally, the government contends, apparently in the alternative, that legislative intent, not Blockburger, is what controls the government's ability to impose multiple punishments in successive proceedings. Blockburger has been held to be a mere "rule of statutory construction," to be utilized only when "the will of Congress is not clear." Missouri v. Hunter,
However, we must conclude that congressional intent, no matter how clear, cannot bestow constitutional legitimacy upon multiple punishments for the same offense when they are imposed in multiple proceedings. The government's position is correct with respect to multiple punishments in the same proceeding. See Hunter,
These cases culminate in Halper and Kurth Ranch, where the Court limited the effect of federal and state statutes by barring the imposition of civil penalties for an offense previously prosecuted. The point is especially clear in Kurth Ranch, where the Montana legislature chose to impose a civil penalty only on those potentially subject to a first prosecution. --- U.S. at ----,
With respect to nonremedial civil penalties, we take Halper and Kurth Ranch to be dispositive. Although Congress may allow multiple punishments for the same offense in the same proceeding, it cannot legitimize multiple punishments for the identical offense in different proceedings.
E. Conclusion--Double Jeopardy
Thus, whether the forfeiture is seen merely as another punishment for Mr. May's prior drug conviction or as a punishment for a separate offense, the result is the same. Following his conviction on drug charges, Mr. May was punished again in a separate proceeding for the same offenses. Insofar as it was based on previously prosecuted conduct, the second punishment violated the Double Jeopardy Clause of the Fifth Amendment. Since the government did not argue and the record does not indicate that either Unit 10 or the Mays' home is forfeitable on the basis of unprosecuted conduct, we hold that Mr. May's interest in these properties may not be forfeited.
III. Issues on Remand
Because a remand is still necessary despite the success of Mr. May's double jeopardy argument, we must address several remaining issues pertaining to further proceedings: the government's argument that Mr. May can still forfeit a part interest in all of his property, Mr. May's argument that evidence from the searches should have been suppressed, and Mr. May's argument that the district court erred in determining whether the forfeiture was excessive. We reject the first two, and decline to address the last.
The government contends that if Mr. May's civil forfeiture does constitute double jeopardy, he could still forfeit a portion of all the property in which he claimed an interest. That is, since forfeiture has been held to be punishment only "in part," Austin, 509 U.S. at ----,
The government's request is based largely on a misapplication of Halper. In that case, the defendant had fraudulently obtained a definite sum of money from the government, and the statute under which he was prosecuted aimed to provide a sort of "rough remedial justice" in the form of "liquidated damages."
In this case, however, it makes sense to focus on §§ 881(a)(4) and (a)(7) as a whole.... The value of the conveyances and real property forfeitable under §§ 881(a)(4) and (a)(7) ... can vary so dramatically that any relationship between the Government's actual costs and the amount of the sanction is merely coincidental.
Austin, 509 U.S. at ---- n. 14,
Finally, we must consider Mr. May's other contentions on appeal. First, he argues that the district court erred in denying his motion to suppress evidence gathered in the searches of his home and business properties. Second, he argues that the district court applied the wrong standard in determining whether the forfeiture was an excessive fine under the Eighth Amendment.
Mr. May objected to admission of evidence taken from his home and business properties, arguing that the police vitiated his consent by leading him away from the search sites before the searches were complete. The district court denied Mr. May's motion to suppress on the ground that such motions cannot be raised in civil cases. The government recognizes that this is an inaccurate statement of the law. Evidence illegally obtained may be suppressed in civil forfeiture proceedings. One 1958 Plymouth Sedan v. Pennsylvania,
In light of the record, we agree that the district court's ruling was harmless error. Mr. May was not deprived of the ability to meaningfully exercise his contractual right since he was free to stop the search once he realized the police intended to take him from the search site. Until consent is revoked, any evidence seized is admissible. United States v. Guzman,
Mr. May's second contention is that the district court applied the wrong standard in determining whether the forfeiture constituted an excessive fine under Austin v. United States. In view of the fact that the proceedings on remand may produce no forfeiture at all, this issue is not ripe for adjudication. See Garrick v. Weaver,
CONCLUSION
The forfeiture res in this case consists of five items of property in which the two appellants have claimed discrete interests. In light of the above, we hold as follows. Regarding the $13,050, we AFFIRM summary judgment for the government as to Ms. May's claimed interest, but REVERSE as to Mr. May's interest and REMAND for proceedings consistent with this opinion. As to the $2,800, we also REVERSE and REMAND for proceedings consistent with this opinion. As to Unit 9 of the business property, we AFFIRM summary judgment for the government as to Ms. May's claim, but REVERSE the summary judgment with respect to Mr. May and REMAND with instructions to enter judgment for Mr. May. As to Unit 10 of the business property, we REVERSE the summary judgment as to Ms. May and REMAND for proceedings consistent with this opinion; as to Mr. May, we REVERSE and REMAND with instructions to enter judgment for Mr. May. As to the Mays' home, we REVERSE as to Ms. May and REMAND for proceedings consistent with this opinion; as to Mr. May, we REVERSE and REMAND with instructions to enter judgment for Mr. May.
Notes
Honorable H. Dale Cook, Senior United States District Judge for the Northern District of Oklahoma, sitting by designation
21 U.S.C. § 881(a) provides that the following items
shall be subject to forfeiture to the United States and no property right shall exist in them.
....
(6) All moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this subchapter, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this subchapter, except that no property shall be forfeited under this paragraph, to the extent of the interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner.
(7) All real property, including any right, title, and interest (including any leasehold interest) in the whole of any lot or tract of land and any appurtenances or improvements, which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this subchapter punishable by more than one year's imprisonment, except that no property shall be forfeited under this paragraph, to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner.
21 U.S.C. § 881(a)(6) and (7), contain identical provisions allowing innocent owners of otherwise forfeitable property to avoid forfeiture by establishing their innocence by a preponderance of the evidence
Ms. May also contends that the district court's order conflated the concepts of "joint" property and "marital" property. We do not read the order in that fashion. As we outline below, the district court granted summary judgment as to the marital property based on Ms. May's lack of an enforceable interest therein. It granted summary judgment as to the joint property pursuant to the court's determination that the government had met its probable-cause burden and that Ms. May had not proved her innocent owner defense
Nor does it encompass, as Ms. May also contends, mere "dominion and control" over property titled in another's name. Her theory is that if a drug felon's dominion and control over another's property may be used to support its forfeiture, see, e.g., United States v. 900 Rio Vista Blvd.,
Colorado's rule on marital property in civil forfeitures is similar to that in other states. See United States v. 717 S. Woodward St.,
21 U.S.C. § 881(a)(7) makes forfeitable "[a]ll real property, including any right, title, and interest ... in the whole of any lot or tract of land ... which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of" a drug felony
The government has had ample opportunity to address the issues contained in Ms. May's motion, and the district court's grant of summary judgment for the government is properly before us. The denial of Ms. May's motion is therefore reviewable. See McIntosh v. Scottsdale Ins. Co.,
This issue is identical to the one discussed above in the context of Ms. May's motion for summary judgment and will not be addressed again
One of the cases on which Mr. May relies, Department of Revenue v. Kurth Ranch, --- U.S. ----,
In some of our earlier cases, a double jeopardy argument not raised below was held to have been "waived." Morlan v. United States,
For a discussion of the common-law, Roman, and Biblical roots of this legal fiction, see Calero-Toledo v. Pearson Yacht Leasing Co.,
We note that the Sixth Circuit, although holding that civil forfeiture following a criminal conviction may constitute double jeopardy, United States v. Ursery,
In a recent decision, the Third Circuit has followed Tilley, concluding that forfeiture of drug proceeds under 21 U.S.C. § 881(a)(6) is not punishment. See United States v. $184,505.01 in United States Currency,
Our disapproval of Tilley 's characterization of proceeds forfeiture as nonpunitive should not be read as a disapproval of other holdings in the case. We conclude below in Part II. D.1. that this case should be remanded to determine whether the seized cash is forfeitable as proceeds from other drug sales for which Mr. May was not previously indicted. We express no opinion as to Tilley 's conclusion that proceeds forfeiture can never be excessive under the Eighth Amendment
The following factors were considered significant: (1) the warrants authorizing arrest and the warrants authorizing seizure were issued on the same day by the same judge; (2) the warrants were based on the same affidavit; (3) the civil complaint incorporated the criminal indictment; and (4) the defendants were aware that the government was pursuing both remedies. Millan,