United States v. Perez

have drug probably from sales of the would STEWART, KING, Before SMITH country. agent calculated left the Judges. Circuit $22,000,whereas Perez value of the vehicle at $31,000 it. paid that she had testified SMITH, Judge: E. Circuit JERRY motion included a The court’s denial of the challenge to a con- involves a This matter forfeiture, proportionality review of Dou- as a violation of the tinuing prosecution of whether the which involved consideration of the Fifth Amend- Jeopardy Clause ble relation to amount forfeited bore rational denied a motion to The district court ment. court found costs. The Concluding that the the indictment. dismiss and that the forfeiture removed a that it did the Double prosecution violates [drug] from Perez. The “tool of the trade” Clause, with instruc- and remand we reverse car found that the value of the court also the indictment. tions to dismiss $23,000, the forfeiture was not over- govern- whelmingly disproportionate to the I. forfeiture there- ment’s and that the a remedial fore bore a rational relation to and her four chil- Gloria Perez Defendant reimbursing government and purpose: private the United dren entered allegedly society for the costs of Perez’s checkpoint at Falfurri- border vehicle via the wrongful conduct. as, Patrol officers discovered Texas. Border kilograms of marihuana the ve- ninety-six II. Perez,

hicle, seized the vehicle. arrested have claims that we charg- jury an indictment grand A issued noting jurisdiction appeal, no to hear Perez’s of marihuana with ing possession Perez with general disapproval federal of inter law’s distribute, of U.S.C. violation intent 841(b)(1)(C). locutory appeals, particularly in criminal The United Abney v. 431 U.S. cases. See proceed- brought in rem civil States then 2038-39, 656-57, under 21 of the vehicle ing seeking forfeiture (1977) (opining ap that such L.Ed.2d 651 881(a)(4). U.S.C. disfavored). Despite this peals generally “Stipula- government filed a and the Perez however, underlying presumption, federal agreed Perez which tion of Settlement” interlocutory appeals courts have entertained to the United be forfeited that the car would denying dismissal of an indict from orders approved the The district States. jeopardy grounds. Id. at ment on double “Agreed in an “Stipulation of Settlement” 2035-36; States v. 97 S.Ct. at Dismissal,” in which Forfeiture and Order of (5th Cir.1994), cert. de Tilley, 18 F.3d 295 forfeiture of the vehicle the court ordered nied, the forfeiture action. and dismissal of (1994); generally see Cohen v. L.Ed.2d 490 indictment, to dismiss moved Corp., Indus. Loan 337 U.S. Beneficial prosecu- ongoing criminal claiming that the (1949) (holding 93 L.Ed. 1528 Clause’s tion violated appealable). The certain collateral orders multiple punishments. against prohibition ap Abney held that federal courts of the motion. court denied The district peals may hear claims on double or interlocutory appeal under the collateral to dis- hearing on the motion During the of Cohen: miss, regard to der doctrine evidence with the court heard pleaded guilty the small class of The defendant Witte orders fall within [S]uch conspiring possess placed beyond attempting mar- cases that Cohen place In the with judgment final rule. first ihuana intent to distribute. During sentencing, that such orders 115 S.Ct. at 2202-03.

there can be no doubt formal, and, complete, in the district took into account evidence of constitute a court, relating rejection uncharged criminal conduct trial final a criminal to co- claim____ jeopardy caine and enhanced the defendant’s sentence defendant’s double at-, based that evidence. Id. Moreover, very the nature a double subsequent S.Ct. at 2203. A on indictment that it is jeopardy claim is such collateral charges the cocaine issued and was dismissed to, separable principal from the issue ground forming on the that the conduct the trial, impending the accused’s criminal already the basis of indictment had been guilty accused is of the whether or not the “punish” used to the defendant when his charged. offense on sentence the marihuana counts had been (emphasis enhanced, 431 U.S. at creating jeopardy thus a double added). at-, violation. Id. Witte, Perez, In in there was some distinguish Abney The tries to question as whether the defendant had ground Abney multi- on the that involved a placed jeopardy prior to the been in contest- jeopardy analysis, not ple-prosecution double Perez, prior proceed- In the ed indictment. analysis multiple-punishment in this a ing alleged placed have by defendant to her by Tilley, is foreclosed argument case. That jeopardy proceeding. a civil forfeiture was jurisdiction Abney, in which took we Witte, prior proceeding In the was sentenc- discussion, interlocutory appeal without of an ing forming in which the the conduct basis of from a an indictment. See refusal to dismiss the contested indictment had been taken into The 18 F.3d at 297. motion to dis- account. jeopar- miss in made the same double (a dy argument analysis Perez makes viola- here in Witte demonstrates that prohibition multiple on ripe: tion of the clause’s the case before us is punishments). Abney id. Given and Til- that, argues Petitioner nevertheless be- Cf. juris- ley, question there that we have is no giving cause conduct rise cocaine appeal. diction over Perez’s charges during was taken into account sen- conviction, marijuana

tencing for he effectively “punished” for conduct was III. result, during proceeding. As a first contends, he A Supreme Court decision re recent prosecution. This claim is bars instant here, ripeness any question of even solves prosecution ripe stage of the this precisely —al- though not have that case did yet though petitioner not been convict- posture before us In same as the one now. because, as we ed of cocaine offenses — Witte v. United said, may impose not have “courts more (1995), gov 132 L.Ed.2d punishment one for the same offense than appealed a district court order ernment ordinarily may prosecutors not at- motion to granting a defendant’s dismiss punishment tempt to secure multiple punish on the indictment based Thus, petitioner than one ... trial.” if prong ments of the Double Clause. present case constitutes a correct that the at -, appeal, Id. at 2203-04. On punish criminally him attempt second remanded, panel of this court reversed ..., the same cocaine then affirmed, far offenses judgment and that was with the proceed. prosecution not ripe appel be holding Court the case to at -, (emphasis Id. at 2204-05 though the late review even defendant omitted). added, Thus, if citations yet charges not in the internal been convicted present consti Id. correct that contested indictment. attempt punish her crimi- at 2205. tutes second offenses, major impact application of has had a on the marihuana nally for the same held proceed.1 test. may not prosecution subject to Exces that civil forfeitures are IV. Eighth Amendment. sive Fines Clause of the at -, 113 S.Ct. at 2803. Austin Jeopardy Clause states: The Double case, jeopardy but the Austin not a double subject person be for the “[N]or shall analysis a determination Court’s did include put be twice same offence to “pun of whether civil forfeitures constitute V. Amend. life or limb.” U.S. Const. ishment,” at -, 2806. see id. 113 S.Ct. at provide interpreted this clause to courts have Furthermore, relied, explicitly it multiple prosecutions protection from both part, Halper punishment test to make on the conviction) (after or a acquittal either an at that determination. Id. 113 S.Ct. — See, Witte, e.g., multiple punishments. 2812; $405,089.23, v. 33 F.3d at -, In 115 at 2204. the S.Ct. (9th Cir.1994), 1210, 1219 amended on denial us, only parties agree that the before the (9th banc, Cir.1995), reh’g 41 en 56 F.3d of multiple punishments prong is at issue. petition filed, cert. 64 U.S.L.W. 3161 for is the same as The core issue (U.S. (No. 95-346). 28, 1995) Aug. Halper, v. 490 that faced statutory for focused on two Austin 1892, 435, 104 L.Ed.2d 487 881(a)(4) §§ provisions, 21 U.S.C. and feiture (1989): “[Wjhether under what circum and 881(a)(7). us The former is the one before punish penalty constitute stances a civil concluded that all now. The Austin Court of the Double purpose for the ment subsections con civil forfeitures under both 446, An 109 S.Ct. at 1901.2 Id. at Clause.” — 113 punishment. stitute U.S. at governing legal stan Halper, nounced in the drawing punish In the S.Ct. at 2812. resolving this issue is whether the dard for ment/non-punishment distinction for exces solely pur a remedial civil sanction serves involving statutory pro sive fines cases these pur or deterrent pose, or also a retributive visions, applied the Austin the same Court 448, at 1901-02. If pose. at Id. test used to make the punishment/non-pun true, sanction constitutes is latter jeopardy ishment distinction double purposes jeopardy of punishment for double at -, cases—i.e., 113 test. Id. analysis. 1219; 2812; $405,089.23, 33 F.3d at S.Ct. typically effected as standard is Ursery, This 573 see United States (6th If the case-by-case proportionality Cir.1995), review: petition filed, a cert. for (U.S. 1995) (No. overwhelmingly disproportionate is Aug. sanction 95- U.S.L.W. 3161 345). damages by a defendant’s al caused conduct, punish leged wrongful it constitutes rejected specifically The Austin Court 449, 109 at 1902. ment. See id. at S.Ct. punishment case-by-case approach to the de include proportionality review must Such a 881(a)(7). 881(a)(4) §§ termination for and damages accounting government’s — 14,113 n. U.S. at---& id., costs, determine whether and see to 14; $405,089.23, 33 F.3d at at 2810-12 & n. damages disproportionate. sanction was — (citing at - n. by society a result of the as and costs borne 14). 113 S.Ct. at 2812 n. also to be unlawful conduct are defendant’s explicitly to focus on the two Court claimed considered. See statutory provisions rather than “as whole” U.S. -, individually applied (rejecting Helper's ap as Austin (1993), however, convey- proach), stating that value of “[t]he 125 L.Ed.2d 488 different, procedural posture Halper recently of is characterized Witte as 2. The 1. A sister circuit however; "holding multiple punishments double convicted of the defendant had been ripe appellate review even claim is for proceeding, criminal offenses in the first various yet have been a second where die claimant has time convicted.” See United States to second, proceeding was an and the contested Baird, ongoing civil forfeiture. (3d Cir.1995), petition F.3d for 17, 1995) (No. 95-630). (Oct. filed that, Tilley while property real court held the forfei- anees and forfeitable conveyances 881(a)(7) property may tures of and real vary ... and can so (nor not have to proportional- correlation dramatically any relationship between than with) ity government’s society’s dam- actual the Government’s costs ages of drug pro- the forfeiture merely of the sanction is coinciden amount always directly to ceeds related such dam- n. U.S. at - tal.” (as approximated by ages amount omitted). (citation Having con n. 14 sold): sold, drugs “The drugs the more provisions cluded that “forfeiture these proceeds that will be forfeited. As we have ‘payment sovereign pun to a constitutes held, proceeds roughly ” proportional these offense,’ at -, id. ishment some the harm inflicted (citation omitted), Austin Thus, society by drug logic sale. announced that such forfeitures consti inapplicable Austin —the F.3d punishment per Ursery, tute se. See drug proceeds.” By forfeiture of distin- approach categorical This for such at 573. ie., guishing acknowledging Austin thus — always requiring them to be civil forfeitures — conveyances forfeitures of are never punishment the need considered —obviates proportional damages, con proportionality review the kind except perhaps by coincidence—the by the district court in this ease. ducted acknowledged purpose 881(a)(4) is, § part, punish. least to Austin, after of- Tilley, which was issued ongoing prosecution Perez’s thus consti refuge. true government no It is fers attempt punish to tutes second her crimi Tilley an court declined to extend that nally for the same marihuana that offenses per to Awsím-style approach se civil forfei- civil were involved in the forfeiture. It (forfeiture 881(a)(6) § brought of tures therefore violates drug proceeds), provision a sister of the one —Witte, may proceed. Clause and See not Tilley, in this case. See at issue at - - -, 115 S.Ct. at 2204-05. Rather, to a Hal- apply we decided required. proportionality No review was Ac case-by-case per-style approach to the facts cordingly, we the district court’s REVERSE Tilley. See id. of of Perez’s to RE denial motion dismiss and Tilley It is also true that the facts of MAND with instructions to dismiss the in precisely mirror those dictment. almost of the us. The filed the

before KING, concurring: Judge, specially Circuit prior forfeiture claim to the issuance of civil indictment; case, however, panel’s opinion judg I in the in this concur as logical I both are ment because think exten disposed prior claim of forfeiture was opinion in sions of the court’s United States fact, Id. at 297. the forfei- indictment. (5th Cir.), Tilley, v. 18 295 cert. de F.3d by proceeding resolved of a ture means - nied, -, 115 130 S.Ct. id., just “stipulated agreement,” forfeiture (1994). separately I L.Ed.2d 490 write postures in the instant The overall of case. generated confusion has been note the that the cases identical: Both defendants by the Court’s decisions United States brought interlocutory appeal of of a denial Halper, 490 U.S. 104 a motion to dismiss the indictment on double (1989), 487 and Austin v. L.Ed.2d grounds (specifically, multiple prong). punishments (1993). good example Perez is a L.Ed.2d 488 similarities, confusion; Tilley not Despite Halper these does of that it stands on its head, support but not without us. from dispose of case before The (not or from Austin construed statutory faced provision court was with by unreasonably) Tilley. 881(a)(6)) (§ logic Austin which apply, not and which is therefore dis- does Traditionally, proper- forfeiture the civil tinctly provision us different from before activity ty involved criminal and the crimi- (§ 881(a)(4)). F.3d at in Perez prosecution property’s nal of the owner underlying raise the same conduct did not 300. conveyance under forfeiture of a Jeopardy Clause. Double under the issues always punitive. Where See, v. One Assortment e.g., 354, 362-66, Firearms, criminal completed 465 U.S. before the forfeiture is (1984). 1105-07, The 79 L.Ed.2d violates prosecution the criminal prosecution, by out for resolution cries question, may which not Double whether, Court, or to what Supreme case-by-ease approach, Halper*s proceed. So changed that extent, Austin have Halper and by scrupulously followed the district rule. here, way categorical approach given court’s conclusion in which the district recognized in The Court wholly remedial is the forfeiture at issue is civil sanctions that government may exact justice” without “rough remedial irrelevant. achieve Accord jeopardy concerns. raising double consequences to the adminis- practical ordinarily necessary Halper it is ingly, enormous. justice in this circuit are tration of civil im particular sanction to examine the in Perez is sequence proceedings case-by-case basis to determine posed on a be, Many ongoing cases will common. “punishment” for dou whether it constitutes be, by many completed affected cases Halper, 490 U.S. at jeopardy purposes. ble unique problem is not this decision. And the 1901-02; 448, 109 id. at 452- see also been circuits have to this court. Several J., (Kennedy, concur See, e.g., of it. struggling with variants along came which held ring). Then Auto- v. All Assets G.P.S. United States provisions of U.S.C. the forfeiture (2nd Cir.1995); Corp., 66 F.3d 483 motive conveyances, or (dealing with (2nd Morgan, 51 F.3d 1105 United States drugs as automo transporting such means of denied, U.S. -, Cir.), biles) 881(a)(7) (dealing real estate with 171, 133 (1995); L.Ed.2d 112 transactions) impose “punish drug used (3rd Baird, Cir.1995), petition applica the threshold purposes for ment” (U.S. filed, 64 Oct. cert. U.S.L.W. for Excessive Eighth Amendment’s bility of the 1995) (No. 95-630); States v. Borro United might Although it have been Fines Clause. (4th meo, Cir.), opinion F.2d 23 adhered narrowly in a possible to read Austin reh’g, 1 part part on to in and vacated arising under (4th Cir.1993); F.3d 219 court, Tilley, in dicta in read it this Clause 1 (6th Salinas, Cir.1995); F.3d 551 conclusion that all categorical to call for the (6th Cir.1995), Ursery, 59 F.3d 568 conveyances and real es civil “forfeitures filed, 64 petition cert. U.S.L.W. to, proportionality or correlation tate have no (U.S. 1995) (No. 95-345); Aug. by with, costs incurred $405,089.23 Currency, 33 F.3d States v. unpre society large and and because (9th Cir.1994), opinion amended on de- of real estate the values dictable variances (9th Cir.1995), reh’g, nial 56 F.3d comparison to the harm conveyances in filed, 64 petition U.S.L.W. society by the government and inflicted 1995) (No. 95-346); (U.S. Aug. SEC at 300. That criminal act.” (D.C.Cir.1994). Bilzerian, It is support certainly has some conclusion Supreme should revis- U.S. at - n. an area that the Austin. Predictably, Perez n. 14. it. the district court that even where now holds findings supporting the

has made careful forfeited bore that the amount

conclusion relationship

rational purely purposes appears remedial serve[d] that "it fine in Austin stated 1. The Court be considered ‘excessive’ in practical [could not] whether the Ex difference make little suggests perhaps a distinc- applies to all forfeitures event." Id. This Clause cessive Fines (a)(7) Jeop- Double only tion should be drawn between the §§ or to those ardy purely Clause and the Excessive Fines remedi characterized that cannot be when it comes forfeitures U.S. at----n. al.” (a)(7), Eighth where those forfeitures because the 14. That was true 2812 n. purely in nature. only be found to be remedial prohibits fines and "a excessive Amendment

Case Details

Case Name: United States v. Perez

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Nov 21, 1995

Citation: 70 F.3d 345

Docket Number: 94-60788

Court Abbreviation: 5th Cir.