United States v. $405,089.23 U.S. Currency, Charles Arlt, James Wren, Payback Mines, Claimants-Appellants
56 F.3d 41
9th Cir.
1995
Check Treatment

*1 guide-a determining court whether effectively to decide that Califor- willing rights nia Moore’s constitutional prisoner violated or not to order of a state release in this cursory most only the review based on give full before it can consideration to the court, appropriate the benefit without compelling considerations are merits. Such Cali- briefing, let alone grant require motion here state’s upheld which examined and fornia courts appeal. stay pending more are entitled to a conviction Moore’s Indeed, the fact that treatment. considered proceedings al- court consumed district years indicates three-and-one-half deserving of careful issues by this court. America, UNITED STATES addition, by focusing on Plaintiff-Appellee, merits, of success on state’s likelihood majority ignores the other factors Hilton worthy deemed of consider- $405,089.23 CURRENCY, stay. deciding a motion For ation in al., et Defendants. instance, explicitly stated “possibility may take into account the Arlt, Wren, Payback Charles James prisoner “the risk that the flight” and Mines, Claimants-Appellants. if released.” Id. pose danger to the Further, No. continuing the state’s interest consider United States Court of That interest custody over the defendant. remaining por- strongest where the “will be long.” tion the sentence be served May 30, 1995. Id. Here, weigh strongly factors these CA, Wesley Arlt, Lompoc, Charles stay. granting the favor of Wren, CA, se, pro Eli Lompoc, James of two cold- has been convicted Moore claimants-appellants. juryA murders. determined blooded gagged two cohorts bound and Moore and Feldman, Atty., Los A. Asst. U.S. Mark Beach, Long Mrs. Robert Crumb of Mr. and CA, Angeles, plaintiff-appellee. them, brutally California, robbed P.S., Finer, Jeffry Pugsley, K. Finer & Moore has beat and stabbed them death. Seattle, WA, Steinborn, Jeffrey Spokane, identified as the murderer also been Grantland, WA, Endan- Brenda Forfeiture manager during another store Woolworth’s CA, Rights, Valley, American Mill gers Kansas. was accused robbery in Moore and, Perez, Ana, CA, manager af- abducting gunpoint, for defen- R. Santa Shawn life, manager’s pleas his ignoring ter dant-appellant. poses a shooting him to death. That Moore WA, Troberman, Seattle, E.E. Richard S. question. public is danger to the without Michael, Edwards, III, Nashville, TN, David Further, is under a death sentence. Moore Francisco, CA, Smith, Alexan- B. David poses a risk of Consequently, he substantial VA, for Amicus Curiae dria, Attorneys Na- every- nothing flight to lose and as he Law- Association Criminal Defense tional fleeing. by Releasing Moore thing gain yers. likely circumstances is under such consequences. Finally, because disastrous REINHARDT, Before: POOLE severe, has a is so the state Moore’s sentence TANNER,* Judges, and District continuing interest to confine substantial Judge. him. finding recognize district court’s ORDER to be violation is not a matter constitutional September filed Supreme Court lightly. taken follows: is amended as common-sense set forth considerations Tanner, designation. sitting by ington, States Jack E. Senior United Honorable Judge for the Western District of Wash- District *2 42 1220, drug please at add the follow- of dealers western

On 33 F.3d hundreds across the Why Major Drug Suspect United States.” text and re- ing footnote at the end of the Free, 1995, Chron., 9,May Go S.F. accordingly: number the footnotes A1.1 categorical approach adoption of this Our government The held that could the compelled by Supreme also the drug not convict dealer of decision in Revenue recent — drugs and then seek civil of the Ranch, Montana v. Kurth of -, proceeds It the transactions. rea- 1937, 114 L.Ed.2d S.Ct. 128 767 prose- “punishes” soned that do so (1994). There, Supreme applied Court —or dealer twice cutes —the for the same offense categorical approach for deter- Austin’s Jeopardy runs afoul of thus the Double mining when has been im- flip The panel’s Clause. side of the reason- posed Jeopardy arising a Double ing drug illegally dealer whose pursuant drug to a state statute that taxed previously obtained have been -, monies. Id. at S.Ct. may not prosecuted seized thereafter be be- ofAll members have voted to already “punished.” cause he have been petition

deny rehearing. for right. be This cannot Judge Judge Poole and Reinhardt have Supreme The Court the civil that reject suggestion rehearing voted to for contraband is a sanc remedial Judge so en banc Tanner has recom- tion that does not constitute mended. jeopardy purposes. double United States v. Firearms, One Assortment 465 U.S. The full court sugges- of the advised (1984). 1099, 104 S.Ct. 79 L.Ed.2d 361 rehearing judge tion for en banc. A equivalent Proceeds are the functional requested vote as to whether take panel’s contraband. Yet the opinion writes banc, the case en and a taken. vote was off by taking 89 Firearms the books one line request failed to secure the affirmative vote 435, 109 Halper, in United States v. 490 U.S. majority of the active non-recused mem- (1989), S.Ct. 104 L.Ed.2d 487 and Aus bers court. — States, U.S. -, tin v. United petition rehearing is denied and (1993), an excessive suggestion rehearing banc is re- en case, surmising out of context and that fines jected. changed “the Court its mind” about collective jeopardy despite the fact — RYMER, Judge, Circuit whom didn’t itself that it had. This can’t Judges CYNTHIA HOLCOMB right, be either. HALL, WIGGINS, KOZINSKI, forfeiture, Halper did not involve civil but O’SCANNLAIN, TROTT T.G. rather a civil fine under the False Claims join, dissenting NELSON from the order Act, 31 U.S.C. con- rejecting suggestion rehearing en text, the Court stated that “a civil sanction banc:' fairly cannot be said serve a banc, By failing to rehear this ease but rather can be court lets explained serving stand a decision that “could free as also either retributive reported: 1. As the promi- Chronicle The Ailemen case be the most Ap- nent California since a U.S. Court Charges against alleg- an Oakland man who peals year government ruled last that the can- edly biggest Bay ran one of the heroin- Area’s prosecute alleged sepa- an dealer and smuggling rings may dropped today as rately ruling his assets. The caused seize ruling result of a controversial court could prisoners hundreds to flood the courts with free hundreds of dealers across the west- double-jeopardy demands release on ern United States. grounds. drug trafficking Pius Ailemen beat implications stag- charges "The of the decision are in federal court in Francisco on gering,” Barry said grounds defender that a conviction would amount to you already Portman in San Francisco. "If this to take —authorities conclusion, punished by seizing logical go- people him Alfa Romero its his 1991 countless $4,900 get ing in cash. off.” — lawfully property”), punishment, as derived purposes, deterrent the term.”2 490 to understand have come at 1902. The Court Supreme changed Court has its up on this statement picked If *3 being mind —if instead a remedial sanction forfeitures of whether civil the issue was trigger jeopardy the double does bar property under 21 and real automobiles respect as 89 to contra- Firearms 881(a)(4) (a)(7) subject are to U.S.C. band, a separating trafficker from the Fines Clause the Excessive the limitations of of his is the Ex- Eighth Amendment. Because which either bars after conviction forfeiture implicated Fines is whenever cessive Clause prosecution up or after seizure —it to that punish part at least in to serves a sanction question so. whether it has.3 a does not serve has read instrumentality for- concluded that jeopardy jurispru- excessive fines subject are to exeessiveness feitures differently. impor- dence the national Given they partly punishment. at least because program tance of civil forfeiture and the damage getting from it wrought that can be Halper collapses into panel’s opinion wrong, go failure I dissent from our Austin, converting Halper’s rule of reason banc. per into a rule for the the “rare” case se merges inquiry case. It also routine the amount fines cases—whether

excessive partly forfeited —into eases, the issue is whether jeopardy PEREZ-OROPEZA, Jose Jesus entirely punishment. the amount forfeited Petitioner, And, perhaps critically, v. proceeds, are forfeitable under treats which 881(a)(6), a car or a house used to § like AND IMMIGRATION has to SERVICE, offense. This facilitate NATURALIZATION Respondent. distin- wrong. 89 Austin Firearms —which otherwise; says guishes but leaves No. 94-70291. intact — Circuit, does Fifth with which we and so United States Court squarely in conflict. United States are now (5th Cir.) (post- Tilley, 18 F.3d v. 1995*. Submitted post-Halper, Austin 1, 1995. Decided June punishment for double proceeds cannot be property it is of jeopardy purposes because legal had which the defendant never liberty price in

right and no “it exacts practical require as a matter all forfei Halper adopted “for the a rule reason rare 2. subjects proceedings), fixed-penalty provision through criminal case” where "a tures be initiated - small-gauge prolific but offender to sanction damages overwhelmingly disproportionate present purposes, it But for 109 S.Ct. at he has caused.” 490 was a double to note that Kurth Ranch suffices circumstances, the defendant possession 1902. Under those (involving a tax on accounting government's is entitled to an marijuana imposed penalty had after a criminal penalty damages if the conduct) and costs to determine was been assessed for same punishment. amounts a second Austin, only yet mentioned Austin decided after holding passing that a civil as where Montana 3. It is unclear Eighth Amendment's violate the Ranch, - U.S. -, v. Revenue Kurth against proscription Ranch, fines. Kurth excessive (1994), handed down - at -, S.Ct. at submitted, panel's opinion fits into after Torres, unanimously See, this case suitable for finds e.g., equation. United States Fed.R.App.P. (7th J., Cir.) (Easterbrook, suggesting decision without 34(a); together Cir.R. 9th Halper and Kurth Ranch