United States v. Guy Jerome Ursery

America, UNITED STATES

Plaintiff-Appellee,

Guy URSERY, Jerome Defendant-

Appellant.

No. 94-1127. Appeals, States Court

Sixth Circuit.

Argued Jan. July

Decided Haviland, Atty., Asst. Marlene

Robert briefed), Atty., (argued Asst. U.S. Juhasz Flint, MI, Atty., plain- of the U.S. Office tiff-appellee. Emery, Emery,

Lawrence J. Lawrence J. P.C., briefed), Lansing, (argued MI defendant-appellant. JONES, CONTIE, and

Before: MILBURN, Judges. Circuit J., JONES, opinion of the delivered CONTIE, court, J., joined. in which MILBURN, 576-580), (pp. delivered a J. opinion. separate dissenting JONES, Judge. R. NATHANIEL Guy Ursery appeal- Defendant Jerome ing his and sentence for manufac- conviction marijuana grounds. Be- ture of on several judg- find that the civil forfeiture cause we in this criminal conviction ment followed jeopardy, we reverse case constitute double court. Because the decision the district de- dispositive, find issue to be we to reach other issues raised cline appeal. in this Background May I. Urserys was entered on 1993. The paid on June May the ex-fiancee of Defendant time, During February son, McPherson,1 Heather informed grand jury federal District Eastern Michigan Ursery grew Police State Michigan returned a criminal indictment marijuana property. on his Based on this charged Ursery which with one count of investigation by and information further marijuana of manufacture violation of 21 police, police warrant obtained a to 841(a)(1). Ursery’s § pretrial U.S.C. mo- 30, Ursery July 1992, search the home. On evidentiary tions hearing sup- for an and to officers warrant seized 142 executed the and evidence, press informant, for disclosure of marijuana plants growing in plots six from a mandatory and to strike the minimum sen- the west the rural field to home. While provision following argu- tence were denied initially police that the field believed was origi- ment on June 1993. The was part Ursery’s property, was later deter- nally assigned Newblatt, Judge Stewart A. plots mined that three were 25 feet reassigned Judge but was Cohn Avern for Ursery’s property from line and the other 30,1993 Jury trial. trial commenced on June plots away three about feet from jury and a guilty returned verdict on ranged property plants line. The July Ursery’s posttrial 1993. motions for height from about six inches to feet. a new trial and for on jeop- dismissal double residence, Ursery police From the ob- ardy grounds September were denied on plastic tained an ammunition ease with two 19, 1994, January Judge 1993. On Cohn bags seeds, marijuana filled two loaded Ursery imprison- sentenced months firearms, plastic bags a box with contain- ten years four supervised and release. ing seeds, marijuana marijuana stems and 21, 1994, Judge granted On March Cohn stalks, a growlight. and request Ursery’s pending appeal. for bond September On the United States II. Discussion Attorney’s office in Detroit instituted a civil Ursery argues pros that his criminal against Ursery forfeiture action and his wife. punishment ecution and after settlement of a government brought pursuant the action based on the same 881(a)(7)2 sought § to 21 U.S.C. and forfei- conduct violated the Double Clause Ursery ture of the residence. The action of the Fifth Amendment. This court reviews brought Judge before Lawrence Zatkoff de novo the constitutional issue of double of the District United States Court for the jeopardy. States, Costo v. United Michigan placed Eastern District of (6th Cir.1990). government the court’s civil docket. The Ursery served a seizure for warrant resi- A. No Waiver Ursery dence on at his residence on October Judge 1992. Zatkoff conducted schedul- first, however, govern- We address 9, 1992, conference on November argument ment’s has waived his July trial Urserys scheduled 1993. The jeopardy. Ursery claim of double first government entered into settle- post- raised his claim of double in a Urserys agreed pay ment in which the trial Motion for Dismissal. The government $13,250.00. A argues consent that Federal Rule of Criminal Proce- of, Urseiy's girlfriend subchapter McPherson was Brian punishable by a violation of this September February later fiancee from year’s imprisonment, except more than one be no shall forfeited under this paragraph, to the extent an interest provides 2. This section owner, by any reason of act or omission estab- title, right, properly, including any All real lished that owner to have been committed interest) (including any and interest leasehold knowledge or omitted without the or consent any any or whole of lot tract of land and of that owner. appurtenances improvements, or which is 881(a)(7) (1988). 21 U.S.C. used, used, any or intended to be manner or commit, part, to or to facilitate the commission object to whether the civil forfeiture in the instant requires motions which dure ” be “punishment must case constitutes institution (2) they jeopardy purposes; are waived. See the civil for- prior trial whether raised 12(b)(1). explic- punish- Rule also are feiture and criminal conviction Fed.R.Crim.P. offense; court for shown itly that “the cause ment for the same whether states grant See Fed. may relief from waiver.” forfeiture and criminal 12(f). separate proceedings. R.Crim.P. Because we find questions to each of these answer government’s to the response Our affirmative, we hold that crimi- First, we argument is twofold. note nal conviction second this issue of although the raised violates the Double Clause. below, did not deem the district court waiver Ursery’s court denied district motion waived, Ursery’s argument jeopardy double grounds jeopardy dismissal double As the merits of the issue. but addressed stating such, to an are entitled review this as we proceeding The forfeiture was settled a Second, upon passed below.3 issue that was judgment. adjudi- an consent That is not Ursery has cause for not we find that shown Furthermore, pro- cation. the forfeiture raising Jeopardy prior issue to the Double ceeding “part and criminal conviction were indicating that the Court’s trial single, of [a] States, U.S. decision in Austin v. United alleged person[ involved in criminal activ- ] (1993), 2801, 125 L.Ed.2d 488 113 S.Ct. 17, ity.” States v. [2 United F.3d any for position that which clarified its Cir.1993). (2d 20] 881(a)(7) consti feiture under 21 U.S.C. 28, follow, For the reasons that punishment, on June J.A. 29-30. tutes was decided 1993, Ursery’s holding days a crimi we reverse the district court. mere before Thus, we find that nal trial commenced. Jeopardy C. Attached jeopardy his did not waive double addressing key three Before claim, claim. and we turn to the merits his questions jeopardy analysis double above, disagree we note our first outlined B. Protection the Double fact with the district court: the ment Jeopardy Clause proceeding a civil forfeiture was settled Double Clause “[T]he preclude judgment not a double consent does a sec protects against three distinct abuses: jeopardy analysis judg consent here. The prosecution for the same offense after ond proceeding in the forfeiture acquittal; prosecution for the same a second adjudication jeopardy purposes for double conviction; multiple punish offense after judg jeopardy attached when because the same United States ments for offense.” against ment of forfeiture was entered Ur 1892, 435, 440, 109 v. 490 S.Ct. U.S. sery. (1989). 1897, As Ninth 104 L.Ed.2d 487 noted, judgment in Ursery’s his civil recently its fun consent has “at most analogous guilty plea is action Clause] level Double [the damental plea agreement in a against being pursuant entered protects an accused forced trials, Although jury jeop repeated attempts to criminal case. against himself defend sworn, jury ardy attaches when the is Crist punishments one or more the same exact 2156, Bretz, 28, 38, 2162, $405,089.23 98 v. v. 437 U.S. S.Ct. offense.” United States Cir.1994). (9th (1978), 1210, nonjury 24 and in trials Currency, 1215 57 L.Ed.2d 33 F.3d begins jeopardy attaches “when court has vio To decide whether States, evidence,” v. 420 right court hear United lated constitutional Serfass (1) 377, 388, 1055, 1062,43 L.Ed.2d key must make determinations: three 2868, 2877, 106, 121, S.Ct. 49 428 U.S. 96 3. Even if the district court had not addressed Helvering, issue, (quoting v. L.Ed.2d 826 Hormel of this we still would entitled merits " 721, 552, 557, 719, 85 'injustice S.Ct. L.Ed. 312 U.S. 61 reach this issue where find ” (1941)). Wulff, might Singleton 1037 otherwise result.' See v. 572 (1975),jeopardy guilty plea trial; attaches to a

265 civil forfeiture when there no pursuant plea agreement upon to a proposition stands for the does agreement. acceptance plea not to a civil party court’s attach forfeiture when the Smith, claiming party 912 F.2d United States 324 was not a Kim, (9th Cir.1990); States v. 884 the forfeiture thus never (5th Cir.1989); having Fransaw v. at risk a forfeiture en (5th Cir.) Lynaugh, 810 F.2d & n. tered him. See United States v. (D.Or. cases), 1008, Shorb, (collecting F.Supp. 1187 n. (1987); 1995) (“As stands, Unit the law now Vaughan, 1378 n. who a property ed States defendant asserts claim in a Cir.1983). The fact that there proceeding plainly so does under a jury trial in jeopardy.”). been which sworn threat See no also United States (D.Ariz. Walsh, preclude jeop does not 873 F.Supp. court hears evidence 1994) ardy attaching plea pursu (citing to a proposition entered that jeop from Torres for plea agreement. Similarly, ardy ant to a the fact not proceeding did attach to forfeiture no any has been trial a civil forfei there where defendant did not make claim in preclude the attach proceeding); ture does civil forfeiture United States v. Branum, (D.Or.1994) jeopardy judgment. 801, a forfeiture F.Supp. ment of to 872 803 (same); Kemmish, in a nontrial attaches forfeiture United States v. 869 (S.D.Cal.1994) 803, (same). court accepts stipu when the F.Supp. the 805-06 judgment lation of forfeiture and enters the case, Ursery, Torres, In instant unlike Tamez, of States v. forfeiture. See United Walsh, Branum, Kemmish, did make a (E.D.Wash. 1995) (hold 460, F.Supp. 466 claim proceeding, in the forfeiture and active- jeopardy stipulated that attached civil ly pursued claim. Not when entered the forfeiture court decree of judgment, at risk a actually of forfeiture he forfeiture). Consequently, jeopardy suffered forfeiture. holding in Nor does the Seventh Circuit’s judgment attached when the forfeiture Torres, Ursery. United States entered Cir.), (1994), support S.Ct. Jeopardy Analysis D. Double argument jeopardy did not attach to 1. Punishment of in the instant forfeiture case. In Circuit held the fol Torres Seventh Supreme con Court lowing: sidered whether under and what circum inviting notice him Torres received civil penalty may “pun stances a constitute a pro- make claim in the civil forfeiture ishment” for purposes jeopardy of double result, ceeding. He did not. As a he did analysis. 490 U.S. at at S.Ct. party not a become the forfeiture. In Halper, criminally the defendant was first trial; $60,000 There was no was for- prosecuted making for 65 counts of false opposition, without and feited did totalling ap medical reimbursement claims jeopar- not You have attach. can’t double proximately He was $585. convicted and dy jeopardy. a former without Serfass years imprisonment sentenced to two and States, 420 U.S. $5,000. fined Subsequently, (1975). 1055, 1063, 43 L.Ed.2d 265 aAs brought potentially a civil action which sub non-party, was not at risk in Torres jected Halper $130,000 penalty to a civil of “[wjithout and risk for the false claims. The Court guilty, jeopardy of determination does particular penalty that a determined attach, appeal not and nor neither fur- “so could be extreme and so divorced from jeopar- ther constitutes double damages expenses Government’s and as 391-92, dy.” Id. at 95 S.Ct. at 1064. punishment” spite to constitute of its civil 28 F.3d at 1465. Torres does stand not label. 490 U.S. at at S.Ct. the proposition that does attach The Court stated the commonly light understanding of the historical punishment, as we The notion understand tween the whether given sanction constitutes ment barred punishment leads. To for the imposed may fairly tutes civil as applied in the individual Clause, goals ognized in other contexts that particularized assessment These punishment well purposes goals punishment. must follow the given it, as a criminal sanction said to cuts across the relevant sense purposes civil sanction constitutes end, familiar. when serve. assessing the determination Double the sanction multiple punish- notion where it We have rec- Simply punishment division whether serves law, requires penalty penalty consti- put, and be- Id. U.S.C. Inc. v. We therefore conclude that forfeiture forfeiture as understood at der these deter L.Ed.2d 219 (a)(7) §§ offense,” Browning-Ferris $405,089.23 (footnote Austin, any 881(a)(4) owner, jeopardy purposes. § forfeiture under sovereign serves 881(a)(7) Kelco provisions and the omitted). those and punishment, Disposal, (1989)].... punish, solely civil forfeiture under constitutes as (a)(7) provisions Currency, 33 evidence punishment ^[2909] constitutes a remedial we cannot conclude on the Inc., §§ the clear Cf. punishment for [Indus. of 881(a)(4) at 2915 under United States as culpability serving “payment Congress purpose. focus Halper some § 21 257] [106 Vt., un retribution and serves the twin aims of (holding that civil deterrence____ 881(a)(6) premises, From these constitutes for double jeopardy purposes because Austin “resolves a civil sanction that cannot follows that ‘punishment’ respect issue to forfei- solely serve a remedial fairly be said purposes Jeop- cases the ture for Double only explained be purpose, rather but can ardy as well as the Excessive Fines Clause serving either retributive or deter- as also Clause”). purposes, punishment, we have rent as term. there- come understand the We 2. Same Offense Jeopardy that under Double fore hold the Jeopardy protects The Double Clause already been a defendant who has Clause punishments in multiple the accused from prosecution may not punished in a criminal the multiple same offense. subjected to an civil sanction be additional — Dixon, U.S. Under United States v. may the sanction extent the second 2849, —, 113 L.Ed.2d S.Ct. 125 556 remedial, as but fairly not be characterized States, U.S. Blockburger United 284 only as retribution. a deterrent or 299, 180, (1932), the 52 76 L.Ed. 306 S.Ct. the 447-49, test for whether offenses constitute at 1901-02 490 U.S. at 109 S.Ct. con is whether “each offense omitted) added). “same offense” (citations (emphasis This not contained in the other.” tains element provides instant case the foundation the — Dixon, at —, 113 at 2856. S.Ct. U.S. determination. argues civil that the In 1993 Austin Court decided do not forfeiture and criminal conviction here — —, States, 113 v. United S.Ct. offense punishment for the same constitute 488, 125 in which held that L.Ed.2d requires prosecution because the criminal Eighth Fines the Excessive Clause defendant, proof person, commit a applies Amendment to civil forfeitures of- crime, requires while forfeiture ted 881(a)(4) §§ 21 property under U.S.C. subject to proof forfeiture (a)(7). found that civil forfeitures The Court commission of has been involved 881(a)(4) (a)(7) §§ punish re each offense criminal violation. Thus because, under the rationale in other not. quires an element that the does solely penalties did not a remedi these serve disagree analysis. this We — at —, purpose. al review, con Specifically, forfeiture and after careful We find . offense for the same following declaration: viction Court made 574 necessarily requires penalty full civil full tain[ ]

because the both the criminal proof offense. The forfeiture range statutorily of the pen- criminal authorized property ... applies real which is “[a]ll proceeding.” Halper, alties in the same 490 eommit or ... used ... to facilitate (emphasis U.S. at 109 S.Ct. at 1903 subchapter.” 21 violation of U.S.C. added). disagreement among There 881(a)(7). though § Even the standard of circuits, however, as to when a action, proof easily met in the is more prosecution properly action and criminal can the fact cannot remains components single pro- considered without a confiscate residence show ceeding is not trig- so that double manufacturing marijuana. that he gered. find that in this We the facts is in criminal offense essence subsumed simply support do not determination that by thus the forfeiture statute and does not prosecution the civil forfeiture and criminal require proof an element of that is not re single proceeding. constituted such quired by the forfeiture action. See Oakes v. States, F.Supp. 872 824 2 In F.3d United States (E.D.Wash.1994) very (reaching conclus — (2d denied, U.S. —, Cir.1993), cert. ion)4; Tilley, see also United States 922, 127 (1994), S.Ct. L.Ed.2d Second (“[I]f (5th Cir.) prior concluded a civil forfeiture suit predi civil forfeiture which was single and criminal constituted trafficking drug cated on the same offenses proceeding implicate that did not indictment, charged in the constituted a reaching concerns. this conclu ‘punishment,’ the Double Clause sion stated the court trial.”), will pending bar criminal In the instant ease warrants for the civil seizures and arrests were issued (1994); L.Ed.2d 490 United States v. One day, by judge, the, the same same based Piper Aircraft, 37 F.3d Cherokee (9th Cir.1994) (“[Ujnless by agent. on the same affidavit the DEA the civil forfei addition, 881(a)(4) Stipulation agreed predicated ture under can be upon parties involved other those the seized some offense than for which tried, properties suit, MeCullogh already proper- of the civil also been but forfeiture is barred the Double ties indictment named Clause.”).5 restraining were under order. Further- more, complaint incorporated the civil the Separate Proceedings Finally, criminal indictment. the [Defen- charges aware of dants] The Court made clear were the criminal that government may against the they “seek[] and ob- when them entered into the (holding The plaintiff placed jeop court declared the was in double pled Any 881(a)(7), ardy simple when he nolo under contendere forfeiture section there- fore, requires preceding larceny subsequently violation of the con- was and convicted of trolled substance statutes. the Govern- Michigan robbery larceny armed since law attempted not ment could have to take Mr. robbery awas lesser-included offense of armed transaction), had not Oakes’s home Mr. Oakes manufac- and the convictions arose out of same marijuana premises. accept tured on the To (6th Cir.1984); 'd, F.2d 372 754 United aff argument Government's the sections Co., F.Supp. States v. 724 Marcus Schloss & simply involve different elements because one (S.D.N.Y.1989) (stating 1126 that nolo con section statute of the deals with plea tendere furnishes sufficient basis for double people, adopt the other would be to a circular claim); Shands, jeopardy Chikitus 373 So.2d illusory theory. (Fla.1979) (holding plaintiff's dou F.Supp. at 824. jeopardy prior ble based claim on his nolo con 5. The plea fact that the did not have to tendere not because relevant barred prove Urseiy marijuana manufactured not consideration is nature of evidence adduced obtain the consent in instant case trial, prior previous but at elements of crime does not alter the nature same offense test. Gobern, charged); State v. 423 A.2d contendere, plea As with a of nolo the double (R.I.1981) (holding that once nolo contendere jeopardy by triggered bar is not the evidence court, attaches). plea by accepted jeopardy is proved, charged. by but the elements Brown Cf. Foltz, (E.D.Mich.) F.Supp. circumstances, proceeding only they brought same if were these in Stipulation. Given civil and the same indictment and tried at the the conclusion same we reach time.”) (emphasis prongs original). but The actions were different Ninth criminal completely rejects [Defendants] of the single prosecution of a the Second and by government. Eleventh to consider Circuit’s efforts parallel proceedings prosecution. as one See Comparing this statement F.3d at 20. (“We willing id. at 1217 whitewash case, similar- the facts of the instant by the double violation in this case ity aware of criminal affording significance to constitutional the la- charges him at the time he settled ”). ‘single, prosecution.’ bel coordinated similarity This forfeiture suit. acknowledge Ninth While Circuit’s application Mil- to warrant insufficient approach, unnecessary fully we also find it instant holding Ian’s to the case. adopt the Ninth view this Circuit’s case. contrast, rejected the Ninth Circuit has merely It is our view that so far as the the Millan view: proceed- “single, existence coordinated actions, separate two fail to see how We ing” satisfy requirements arguably could criminal, one one civil and instituted Clause, suggested of the Double as times, tried at times different different Circuits, by the and Eleventh Second factfinders, presided over different before in this a single, facts case fail to reveal such judges, by district and resolved different case, proceeding. coordinated the instant judgments, separate constitute gov- record that the reveals no indication “proceeding.” same pursue ernment the civil intended forfei- $405,089.23 Currency, 33 F.3d at 1216. prosecution ture action criminal parallel proceedings court found Moreover, as proceeding. gov- coordinated separate proceedings that case were oral argu- ernment made clear at counsel purposes. Id. at 1218. ment, there has been no communication be- argues that the fact that government attorneys who tween han- action and criminal action civil forfeiture dled and those roughly apart four months commenced handled civil forfeiture action. The who application of should not deter points the Eleventh Circuit’s recent deci four proceeding were instituted months sion, Family Single States One presided apart, over different district Residence, Cir. judges, by separate judgments. and resolved 1994), single pro court found a in which the proceed- The district found these court though ac ceeding even ings “single, part to be began tion action and ended on and criminal any proceeding” providing factual without government points to different dates. The As a support for this matter determination. that, explanation “[a]s Circuit’s Eleventh something principle, applying of a label to problem in no there is here that does not it so. Without reasonable make abusively by seeking a sec acted coordination, analysis of the indicia of we do punishment ond because of dissatisfaction proceedings logically not believe these two in ac levied the first proce- part single, coordinated become do this tion.” F.3d at 1499. We not find merely labeling such. dure them as Simi- dispositive of rationale to be the issue. Circuit, apply- find that lar to the Ninth $405, prosecu- “single, the label coordinated in of Ninth Circuit’s rationale simply goes to the too Currency suggests parallel tion” facts of this 089.23 U.S. proceeding far. The civil proceedings criminal will civil forfeiture and separate prosecution pro- always criminal Jeopardy the Double Clause. violate (“A ceedings for purposes at 1216 forfeiture case and See analysis.6 prosecution would constitute the criminal —, holding 128 L.Ed.2d 767 Supreme Court's recent Nor does — Ranch, Ranch, In Kurth alter conclusion. Department Revenue v. Kurth follow,

III. Conclusion I holding sons that would affirm this of the district court. above, For the reasons stated we find that judgment against Ursery the civil forfeiture I. by his conviction

followed criminal constitut- jeopardy. Consequently, ed double we re- Halper, United States v. court, judgment of the verse the district sanction, applied Court held that a civil when we remand the case to that court with in- against subject an individual also to criminal structions to reverse conviction and conviction, may “punishment” constitute vacate his sentence. requires jeopardy analysis. a double 435, 448, 109

States v. 490 U.S. MILBURN, 1892, 1901, (1989). Judge, dissenting. Howev er, the Court indicated that its decision was majority holds that the civil forfeiture “prevent not intended to the Government prosecution followed a criminal seeking from obtaining both full in this case Jeopardy violates the Double penalty range statutorily and the full au Clause of the Fifth Amendment to the Con- penalties thorized criminal pro the same respectfully stitution of the United States. ceeding.” Halper, 450-51, dissent. S.Ct. at 1903. the Double protection Clause offers govern when the argues Defendant imposition already imposed penalty, has either him, punishment against criminal in addition criminal, civil or impose seeks to further to the civil forfeiture instituted punishment out of dissatisfaction with the home, against prohibited by his the Double result, earlier id. at 451 n. 109 S.Ct. at However, Jeopardy Clause. in its memoran- 1903 n. but not in single the instance of a 14,1993, September dum and order issued on proceeding seeking range full of available the district court denied defendant’s motion sanctions. See also United States v. Hud jeopardy grounds, to dismiss on double find- son, Cir.1994) 14 F.3d (citing ing that proceeding Bizzell, United States v. “ criminal ‘part conviction were of a sin- (10th Cir.1990)) (finding that the order of gle, prosecution person coordinated of [a] penalties is not jeopar material to the double alleged activity,’” involved criminal J.A. dy question). recently The Court reaffirmed 29-30, and that such an effort did not violate principle Department Revenue Ranch, the Double Clause. For the rea- Montana v. Kurth pos the Court examined "whether a tax on the — n. 114 S.Ct. at 1947 n. 21. The Court illegal drugs session of assessed after the State contemporaneous did not consider whether the imposed penalty a criminal for the prosecution same and tax could may conduct prohibi violate the constitutional "single, proceeding” viewed as a punishments tion successive for the same purposes jeopardy analysis. of double See U.S. at —, offense.” — 114 S.Ct. at 1941. In Torres, (noting 28 F.3d at 1465 the same in beginning analysis, explained its the Court Instead, dicta). the Court found that the State's proceeding separate assessment of the tax in a "[the State] no doubt could collect tax its taxpayer’s from the neces possession marijuana, example, if it sarily separate proceedings constituted for the previously punished taxpayer had not the for purpose jeopardy analysis. of double offense, This indeed, hold the same or it had assessed if ing, applicable to the extent that it is to the proceeding the tax in the same that had resulted case, Here, instant is in accord with our view that the in his conviction. we ask whether proceeding pros civil forfeiture punitive and the criminal subject the tax had characteristics that separate ecution in the instant case were it to the constraints of the Double proceedings purposes jeopardy Clause." for of double at —, (citations omitted) analysis. Id. 114 S.Ct. at 1945 added). Ranch, that, (emphasis Finally, contrary In Kurth the note to Court the dissent's suggestion, found that the tax initiated after the the fact that the Court did not ad- taxpayer's giving for proceeding arrest conduct rise to the dress the civil forfeiture which also n existed obligation, proceed tax simply constituted a successive in prece- Kurth Ranch has no taxpayer’s proceeding. to the criminal Id. at dential value in this case. pursuit by the government 128 L.Ed.2d 767 simultaneous 114 S.Ct. (1994).1 against criminal and civil sanctions [the de- fendant] ... falls within the of a contours majority, I believe that this the Unlike Single One single, prosecution.” coordinated sufficiently pro coordinated case involves Residence, Family 13 F.3d at 1499.2 It is holdings in ceeding to fall the logic my this that underlies conclusion that Millan, (2d Cir.1993), 2 F.3d States there was no double in this violation U.S. —, 922, 127 case. (1994), and United States One L.Ed.2d Family Located at 18755 Single Residence timing believe that the civil and the Road, Miami, Bay North 13 F.3d 1493 proceedings potential criminal the Millan, Cir.1994). the Second Circuit government proceedings abuse of those against action that the found in assessing the central factors the double prop and certain bank accounts defendant’s in this an concerns case. Such charges and his on narcotics erties conviction approach difficulty of a avoids inevitable subject jeopardy analysis to double case-by-case comparison of of coor- the level government’s part actions were because dination, majority’s making method for “single, per of a coordinated Merely looking at determination. activity.” in alleged involved sons proceedings whether at issue bear suffi- Millan, true, 2 F.3d 20. It as the at in Millan similarity proceedings cient to the out, that Millan involved majority points problem presents determining difficult proceed much clearer ease of coordinated similarity required permit how much However, ings. Circuit’s concern Second finding single, proceeding. case, focus, in that was whether its ease, For example, in this timing of the criminal actions al civil and against defendant and his took government punish lowed the the defen place proximity in close time another. one if it that dant with second action believed government The commenced civil forfeiture the defendant had not received sanction proceedings against the home owned de- adequately that was severe first ease. 30, 1992, September fendant wife on and his its The Second Circuit stated decision grand jury and a returned indictment an run did not afoul of the Court’s 5,1993. against February defendant on Pur- government Halper concern stipulated agreement, suant to a settlement by seeking might pun abuse its resources entered a district court consent defendants time ish a second because May proceeding in the civil forfeiture on issue civil and criminal actions at were con crimi- 1993. Defendant was convicted on the temporaneous, and it was clear all the charge July nal It was clear parties government pursuing was he into the defendant at the time entered regardless range full its remedies stipulated agreement settlement the outcome either range of Millan, pursuing full its 2 proceedings. 20-21. This enough against remedies him. Is factual logic also the of the Eleventh Circuit in Residence, Single apply Millan similarity Single Family and One One which the Family Residence? majority concludes

court found “the circumstances of the Ranch, noted late was returned In Kurth the Court that "Mon March indictment posses government pursued no doubt its tax on tana could collect defendant. The marijuana, example, if it sion of had not remedies, obtaining both a conviction on October previously punished taxpayer for the same 30, 1991, subsequent and a order of forfeiture. offense, or, indeed, if it had assessed the tax in noted, the Second Cir- Eleventh the same that resulted his convic involved no cuit had in — U.S. at —, Ranch, Kurth S.Ct. tion." potential a second for the to seek Hunter, (citing at 1945 368-69, Missouri the out- out of dissatisfaction with 679-80, come in the first action because the commence- (1983)). imposition before the ment a civil action penalty precluded Residence, such a result. One Single Family One a civil forfei- In Residence, Single (citing Family F.3d at 1499 ture action was instituted home of the Millan, 20). 1990; later, in five months in 2 F.3d at defendant October not, fact, panel easily that it is but another could In Kurth Ranch itself included a crimi contrary action, penalty, conclusion. in- nal reach a Given the a civil forfeiture a bank action, problems following unpre- ruptcy in herent such an and a tax assessment. Kurth — Ranch, necessary at — - —, I approach, feel it is dictable objective apparently determine the case on a more 1941-44. There challenge no I conclude in- pursuit reliable basis. that this case to the simultaneous of a criminal single, proceeding volves be- action and a civil forfeiture present potential Moreover, it does not dealing cause case we are with here. Court, government process; govern- language, abuse own distinguished its Ranch, pursued proceed- instituted and noting both Kurth that the tax statute at ings against defendant question before knew the issue did not raise “the whether an ostensibly proceeding outcome of either case. designed civil that is punishment may subsequent inflict pro bar a true, out, majority points It is as the ceeding admittedly that is criminal in charac proceedings against the civil and criminal — Ranch, ter.” Kurth at — n. by separate defendant were handled counsel 114 S.Ct. at n. 21. Attorney’s from the United States office and government attorneys ap- primary did not The Court’s focus Kurth Ranch pear actively However, collaborating. to be drug was on the issue of whether Montana’s Millan, the Second Circuit penalty observed tax constituted a for double separate the fact of proceedings purposes. is not dis- questioned The Court never positive determining govern- whether the specifically forfeiture action but dealt employing single ment is exclusively the tax assessment. prosecute a language defendant. “Civil and criminal suggests of the decision suits, by system virtue of our federal the Court viewed the case as different from procedure, sepa- must be filed and docketed other civil actions because it was based on a Therefore, rately. past courts must look tax issue. The Court “[T]he said: tax as procedural requirements only and examine the es- hinges sessment not on the commission crime, by determining sence of the actions at only hand it also is exacted after the when, how, why the civil taxpayer and criminal precise been arrested for the actions gives were initiated.” F.3d at 20. conduct that obligation rise to the tax — case, Ranch, proceed- place.” and criminal in the first Kurth U.S. at ings against —, Torres, defendant and his were S.Ct. at 1947. during frame, active the same time interpreted and de- Seventh Circuit Kurth Ranch as fendant at the dealing knew time of the settlement in monetary with the collection of a Torres, the civil forfeiture action penalty that a criminal ac- for a crime. 28 F.3d at Moreover, pending. tion was both actions 1464-65. imposed The Montana tax could be only resulted from a search of proper- defendant’s after a criminal conviction was obtained. ty areas, surrounding question search that There was no that the same conduct marijuana production revealed extensive and was involved. That is not the case here. possession. Defendant did not have to be convicted of the drug offense before a civil forfeiture could be Torres, In United States v. fact, pursued. (7th Cir.), Therefore, begun first. I conclude that nei (1994), ther the civil forfeiture nor the criminal con questioned the Seventh Circuit the continued imposed viction punishment conse applicability Single of Millan and One Fami quent upon defendant’s criminal conviction or ly Residence after the Court’s re guilt. admission of However, cent decision in Kurth Ranch. I do not necessarily believe Kurth Ranch Because conclude that changes acting pursue this result. Kurth Ranch does not punish- was not a second every hold that civil action the ment out of dissatisfaction with the first out- pursues against come, subject remaining defendant to other concern is whether penalties separate proceeding. constitutes a the “total that autho- exceed[s] prove charge the same elements legislature.” 490 U.S. by the rized methamphetamine). was manufacturing at 1903. Defendant Howev- 841(a)(1). § violating 21 er, U.S.C. charged convicted with the manufac- defendant 841(b)(1)(B)(vii), § defen 21 U.S.C. Under only year marijuana during the 1992. ture of imprisonment subject to a term of dant contrast, By complaint the civil forfeiture years, nor more than 40 than five of not less charged property that defendant’s was used $2,000,000; and a years; a fine not to exceed to be used to facilitate the unlaw or intended of at least four supervised release term processing of a controlled ful and distribution to 63 years. Defendant was sentenced years. substance for several J.A. years of su imprisonment and four months action, prevail in order to forfeiture imposed. release. No fine was pervised clearly produced with to have sentence was would have defendant’s (1) range punishment. of authorized in the proof probable cause to believe property was used or intended to be used addition, pursuant to 21 U.S.C. facilitate the manufacture and distribution 881(a)(7), any that is used or § real (2) marijuana pun that this offense was the commis- to be used to facilitate intended seq. Title 21 of the United States 801 et § ishable under a violation of U.S.C. sion of year in by by imprisonment than one of more than one punishable is more Code subject 881(a)(7); the own- States § to forfeiture unless prison year. 21 U.S.C. Mari- qualifies as an “innocent owner.” er Property Known and Numbered as v. Real found in defen- juana stems and seeds were Ohio, 137-B, Cutler, Box Rural Route proper- during the search of his dant’s home Cir.1994). majority F.3d furthermore, police received notice ty; government could not confis claims that the marijuana seen with that defendant had been showing residence without a cate defendant’s marijuana with had at his home and shared marijuana. This manufacturing that he was family acquaintances. Defen- members and view, however, fact overlooks the was, therefore, subject properly home dant’s required showing civil forfeiture action 881(a)(7), § forfeiture under U.S.C. to civil property was involved defendant’s set penalty well within the bounds a civil processing commission or facilitation both by Congress. forth of a controlled substance and distribution years. As earlier over the course several II. stated, charged indictment de the criminal disagreement my I with the ma- also note of a con fendant with the manufacture jority’s conclusion that during Had the civil trolled substance prosecution action and defendant’s gov adjudicated, action been majority are based on the same offense. case with might have established its ernment the civil forfeiture and the concludes that relating solely processing evidence for the criminal conviction than years other distribution activities necessar- offense because the forfeiture same circumstances, crimi 1992. Under those manu- ily requires proof that defendant was action the civil forfeiture nal marijuana, facturing and the criminal offense separate of undoubtedly relate to would effectively subsumed the forfeiture. Jeopardy Clause. under the Double fenses disagree. I Again, Miller, United States v. case, prosecution in this In the criminal (6th Cir.1989). of man- was convicted of one count defendant marijuana ufacturing in violation of U.S.C. 841(a)(1). to be found For defendant III. statute, prosecution had guilty stated, hold reasons would For the (1) manufactured that defendant

to show against defendant’s action the civil forfeiture intentionally marijuana that he did so Litteral, defendant’s property followed knowingly. See United States (9th Cir.1990) not create a double (requiring prosecution did violation, affirm the and would district court. STOUTENBOROUGH,

Thomas et

al., Plaintiffs-Appellants, LEAGUE, INC.,

NATIONAL FOOTBALL al., Defendants-Appellees.

et

No. 94-3664. Appeals, Court of States

Sixth Circuit.

Argued June July

Decided

Case Details

Case Name: United States v. Guy Jerome Ursery

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jul 13, 1995

Citation: 59 F.3d 568

Docket Number: 94-1127

Court Abbreviation: 6th Cir.