*1 307 attorney offices across a State would discovery with district ordering circuit-wide tion in relatively meaningless”). decision-making oc be any that indication out States v. level. United at the circuit curred discovery beyond Accordingly, ordering (9th Chavez-Vernaza, 1368, 1374 844 F.2d decision-maker, Circuit, the Ninth was to Cir.1987) discovery reviewed (scope of arbitrary; dismissing the indictment for discretion). cir got to The court abuse discovery make that was without failure to nation discovery by finding that cuit-wide basis. justified, too burden discovery but was wide and REMANDED. REVERSED quarrel with have no some. While we (or with considering burden propriety of 11,000 files going through some finding that burdensome),2 there is no
by hand would be discov record for nationwide
support this the circuit. drawing the line at
ery or for the decision to no that
There is evidence any- by Gomez-Lopez was made
prosecute the Central than the USAO for one other America, STATES of UNITED only of involvement evidence District. Plaintiff-Appellee, suggests at most that by anyone else input on of the INS had local office offi- that national INS charging guidelines, CRETACCI, Defendant-Appellant. Joel and that policies, local “might” influence cials No. 94-10235. agent presented Gomez-Lo- local INS prosecution. pez for Appeals, States Court suggest record anything Nor does Ninth Circuit. decision-making takes any prosecutorial that 14, Feb. 1995. Argued and Submitted There is no execu circuit level. place at the that has administrative structure tive branch 4, Aug. Decided Ninth Judicial Cir anything to do with the indicating cuit, there is no evidence or coordination is communication
there the circuit that
among the USAOs within prosecute to affected the decision
could have Kemp, McCleskey v. 481
Gomez-Lopez. See 15, 107 1756, 1768 n. 295 n. (1987) (“[sjince decisions 262
95 L.Ed.2d charge to prosecute and what involve in
necessarily are individualized and variations, among coordination
finite factual
disclosure);
compel
see also
Immigration
properly
e.g.,
refused
v. U.S.
2. See
Munoz-Santana
Service,
742 F.2d
563
77 S.Ct.
353 U.S.
Roviaro United
Naturalization
(9th
1984) (noting
628-29,
(1957) (discovery
the costs of a hand
Cir.
Opinion by Judge KLEINFELD. concurrence REINHARDT, Judge: Circuit civil for recently held We have purposes “punishment” feitures constitute Jeopardy Clause. See United of the Double any interest in the $405,089.23 or return Currency, 33 F.3d States respond to ei- property.” on denial Cretaeci did amended appeal re government’s This invitations. Ac- reh’g, ther of question: cordingly, related FBI an administrative quires us determine effected *3 of un forfeiture the forfeiture of the car. administrative “punishment”? property constitutes claimed January the forfeiture after On not, that a it and thus that does We hold final, moved to dismiss the became Cretaeci following an administra prosecution against him on pending criminal indictment not of property does forfeiture of such tive grounds. The indictment jeopardy double Jeopardy Double Clause.1 fend the Hobbs charged two counts of Cretaeci with § Robbery, and Act under U.S.C. I. in using carrying a firearm one count of magistrate a federal On October 924(c). violence, § a crime of under 18 U.S.C. against Joel arrest warrant issued a criminal that, light prior of the Cretaeci contended Cretaeci, alleged from his which stemmed MR-2, Toyota it would con- forfeiture of the ATM robberies in two Arizona participation government jeopardy were the stitute double $200,000. That same than that netted more criminally. him prosecute issued a civil seizure day, magistrate the pursuant to 18 Toyota a MR-2 warrant for later, a Approximately a second su- month 981(a)(1)(A). by an § An affidavit U.S.C. charging issued Cretae- perseding indictment Investiga- of the Federal Bureau agent for money laundering counts.2 ci with additional (FBI) warrant accompanying the seizure tion jeopardy motion hearing At a on his double subject to forfeiture alleged that the car was that April of Cretaeci contended purchased with funds had it because Cretaeci laundering strengthened money counts new of the in violation the two robberies from jeopardy because the for- his double defense statutes, laundering 18 U.S.C. money federal premised money on launder- had been feiture §§ and 1957. ing violations. In a letter dated October motion court Cretacei’s The district denied pending of the informed government Cretaeci appeals. the indictment. Cretaeci to dismiss ex- [and action forfeiture administrative and obtain a he could it contest plained FBI petition the hearing or he could II. property]. pardon of the forfeited
for a
motion
denied the
The district court
con-
if
wished to
that Cretaeci
letter stated
ground that
on the
because
to dismiss
court,
have to
he would
the forfeiture
test
with
purchased
sto
Toyota MR-2 had been
a bond
“file a claim of
jeopardy violation
money,
oc
len
no double
$2,399
by December
with
FBI
of
amount
court’s conclu
Although the district
curred.
13,1993.”
explained that if he wished
It also
with our
may be
conflict
sion
property,
pardon
of
forfeited
request
$405,089.23,
we need
consider
holding in
submit, by that same
would have
Cretaeci
Instead,
affirm the
here.
we
question
mitigation of
date,
or
petition for remission
ground. We hold
on a different
district court
proof of his “own-
forfeiture that included
Toy
forfeiture of
administrative
that the
property and circum-
in the
ership interest
punishment
constitute
MR-2 did not
justify
ota
return
believe[s]
[he]
which
stances
charged Cre-
Specifically, the
indictment
2.
new
Circuit has reached
that the
1. We note
Seventh
Torres,
conclusion,
conspiracy to violate 18
States
with one count
see United
tacci
similar
laundering
money
have a num
as
§
two counts of
U.S.C.
See, e.g.,
1956(a)(l)(B)(i),
States
of district courts.
§
ber
one count of
under 18 U.S.C.
(D.Ariz.1994);
Walsh,
F.Supp.
336-337
§
laundering
money
18 U.S.C.
under
Plunk, No. A94-036
but see
transportation of stolen
of interstate
one count
4, 1994) (declining
(JWS) (D.Alaska, November
§
U.S.C.
property under 18
holding
an uncontested
follow Tones
prior pun
constitutes
administrative
ishment).
III.
Jeopardy
purposes of the Double
Cretacci
'
Clause.
the forfeiture of
contends that
Cretacci
because it was
punishment
car constituted
explaining our reasons
Before
judgment against him. We
to a default
akin
conclusion,
conten
we address Cretacci’s
our
that an admin-
disagree and conclude instead
failure to
that we
not consider
of unclaimed
tion
istrative
taking
abandoned
proceeding
simply
be
participate in the forfeiture
constitutes
taking impos-
that such
issue
We hold
not raise that
government
cause the
did
purposes of the Dou-
“punishment” for
es no
correct
that we
Cretacci is
below. While
Jeopardy
ble
Clause.
issues raised
generally do not consider
*4
first,
rule is not an
appeal, the
the
time on
statute,
government has the
By
the
an issue if it
may consider
absolute one. We
circumstances, to effect an
authority, in some
party
opposing
“purely
of law and the
is
one
and
“summary” forfeiture
administrative or
a result of the
prejudice
no
as
will suffer
judicial proceeding.
See
thereby to avoid
in the trial court.”
to raise the issue
failure
208,
$2,857.00,
211-
v.
754 F.2d
United States
Flores-Payon, 942 F.2d
v.
United States
(7th Cir.1985) (describing procedure);
12
Cir.1991)
(9th
(quoting United States
558
1971 BMW
States v. One
United
4-Door
(9th Cir.1990)).3
Carlson,
(1981) (same).
Sedan,
F.2d
1349
900
The
F.2d
819
652
procedures set forth
administrative forfeiture
to,
apply
type
§§ 1602-1618
the
an adminis
in 19 U.S.C.
question
.
question
in
here See 18 U.S.C.
of forfeiture
property con
trative forfeiture of unclaimed
981(d).
§
purposes of the Dou
punishment for
stitutes
“purely one of law.”
Jeopardy Clause is
ble
administrative forfeiture
Under the
Moreover,
to raise
government’s
the
failure
property is not claimed
procedure,
if the
prejudice
did not
Cretacci
the issue below
time,
agency
specified period of
the
within a
the
any way.
decided not to claim
Cretacci
property
declare it “for
that seized the
motion to dismiss
property well before his
manner as
it “in the same
feited” and sell
fact,
In
,
was filed or heard.
the indictment
to the United
merchandise
abandoned
already been effected at
1609(a)
the forfeiture had
(emphasis
§
19 U.S.C.
States[J”
added).
filed his motion.
the time
Cretacci
light
In
of the fact that the statute
Thus,
government’s failure to raise the
notify potential
the
requires
government to
the
prop
of the administrative for
seized
issue of the effect
owners of its intention
forfeit
statute,
that,
if
erty,
the
hearing on the
and the fact
under
in connection with the
feiture
asserted,
gov
ownership is
the
no claim of
possibly have influenced
motion could not
permitted to sell the unclaimed
ernment is
ownership
claim
of
decision not to
Cretacci’s
if
“abandoned to the
property as
it had been
Equally important, had the
the
States,”
an
we conclude that
owner
in the district
government raised the issue
of the intended
who receives notice
court,
nothing
there is
different
Cretacci
ownership interest
fails to claim an
have done that could have affected
could
effectively
property
abandoned it.
has
Introducing proof
the motion.
outcome of
the MR-2 would have
that he indeed owned
property
as the seizure of abandoned
Just
jeopardy pur
avail. For double
been to no
implicate
said to
the former own
cannot be
below,
explain
the critical time
poses, as we
privacy rights,
States v.
er’s
see United
Huff
(9th Cir.1992);
ownership
already
hines,
making a claim of
had
318
Finally,
suggests
Nordling,
no other
passed.
Cretacci
804
prejudiced,
the forfeiture of aban
way in which he could have been
1469
implicate
property cannot be said to
certainly can conceive of none.
doned
and we
relies,
"below.” Id. at - n.
part,
fact that
had not been raised
on the
Cretacci
nothing
find
in Kurth
Department
Kurth
3H KLEINFELD, jeopardy rights. Judge, concurring: Circuit the former owner’s double instance, government has acted In each I reasoning concur in result “re- against property that the owner has majority, by except for one de reached utterly” he has “re- and which nounce[d] whether, tail. I reach would not the issue of claim, title, right, posses- linquished all under v. United Simmons (5th Dictionary Black’s Law 2-3 sion.” (1968), L.Ed.2d Ed.1979) (defining the terms “abandon” pro claim in a civil Thus, property”). we conclude “abandoned against ceeding can be used the claimant here that Cretacci abandoned proceeding. Abandon “pun- not serve to and that its forfeiture did property, gift, relinquishes like a ish” him. Fidelity-Philadelphia title. Trust Co. Le Co., high A. Valley 294 Pa. Coal Finally, reject argument we (1928). Property by valued the true owner is by requiring a defendant claim frequently abandoned because that value is right property we force him to sacrifice his by with exceeded some cost associated re pre in order against self-incrimination taining property, fishing as when vessel against Jeopardy. At right Double serve his *5 Aleutians, ring sinks a diamond off or prove point, a who seeks to defendant relinquish falls into a crevasse. That the prior “punished” him would may result from calculation that the have to claim that he owned forfeited penal a claim value of risk of exceeds the only The of our rule is effect not, mind, my property implicate does require that such be asserted in the a claim property Fifth The is aban Amendment. proceeding itself not sim civil majority’s regardless. reasoning doned The ply in the motion to dismiss criminal persuasive is to me without the Simmons Moreover, a not defendant does indictment. reasoning. incriminating by claiming that he risk himself subject property to forfeiture. owns that is ownership pre
A claim of at defendant’s property he suppression hearing of
trial unlawfully seized not be
contends was guilt. prove the defendant’s Sim
used 377, 394, 88 390 U.S.
mons United For 19 L.Ed.2d reason, claim own a defendant’s
the same subject ership property was to forfei CAMPOS, M. Petitioner- Edmundo purpose. As Appellant, may not be for that ture used explained, it “intol Supreme has is Court right should that one constitutional erable AND NATURAL IMMIGRATION in order to assert have to be surrendered al., SERVICE, et IZATION (holding that a defendant’s Id. another.” Respondents-Appellees. in seized at assertion later suppression motion could not pre-trial No. 94-15361. prove guilt). against him to be used Appeals, Court of Ninth Circuit. IV. government’s forfeiture the aban- 14, 1995. Argued and Submitted June “punishment” property imposed no doned Aug. Decided place him in upon Cretacci thus did reject Accordingly, we his claim jeopardy. prosecution con-
that his jeopardy. double
stitutes
AFFIRMED.