United States v. TilleyUnited States v. Tilley
In this appeal, the defendants seek dismissal of their criminal indictment for selling illegal drugs on grounds of double jeopardy. They argue that the prior civil forfeiture of the proceeds from thesе drug sales constitutes punishment for the crimes charged in the indictment and that the Double Jeopardy Clause precludes a second punishment. The district court, refusing to buy into the defendants’ double jeopardy argument, denied their motion to dismiss the indictment. The defendants then filed this interlocutory appeal. Becausе we hold that the forfeiture of
I
In 1990, the Drug Enforcement Agency, and other authorities, began an investigation of large-scale activities involved in this case, which had yielded millions of dollars in drug proceeds. On July 25, 1991, the government filed а complaint for civil forfeiture in rem against certain personal and real property belonging to the defendants pursuant to
II
The Double Jeopardy Clause prohibits more than one “punishment” for thе same offense.4 North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). The pending criminal trial in this case, if it results in a conviction, would, of course, subject the defendants to punishment. Thus, if the prior civil forfeiture proceeding, which was predicated on the same drug trafficking offenses as charged in the indictment, constituted a “punishment,” the Double Jeopardy Clause will bar the pending criminal trial.5
The Supreme Court has classified a civil sanction for wrongful conduct as a “punishment” under the Double Jeopardy Clause when the sanction served a traditional goal of punishment, that is, deterrence or retribution, instead of the remedial goal of
In Halper, 490 U.S. at 437-39, 109 S.Ct. at 1896-97, the government secured the conviction of a defendant on sixty-five counts of violating the False Claims Act by submitting fraudulent medicare claims. His crimes, howevеr, had only netted him $585 in excess payments from the government, and the district court estimated the government‘s costs at $16,000. Nevertheless, the government, in a separate civil action, sought to impose an additional penalty of $130,000. Halper argued that the civil penalty constituted a second punishment on him for the same wrongful acts for which he had been criminally convicted and thus
Thus, under Halper, we must classify the civil forfeiture of the unlawful proceeds of illegal drug sales under
III
Unlike the fine imposed in Halper, the forfeiture of proceeds in this particular case is not so excessive as to render the relationship between the amount of the forfeiture and the resulting costs to the government and sоciety irrational. The forfeiture of proceeds of illegal drug sales serves the wholly remedial purposes of reimbursing the government for the costs of detection, investigation, and prosecution of drug traffickers and reimbursing society for the costs of combatting the allure of illegal drugs, caring for the victims of the criminal trade when preventative efforts prove unsuccessful, lost productivity, etc. See One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 237, 93 S.Ct. 489, 493, 34 L.Ed.2d 438 (1972) (stating that forfeiture of
Although revenue from illegal drug sales and the cost to the government and society are incapable of exact measurement, a principle recognized in Halper, 490 U.S. at 449, 109 S.Ct. at 1902, the amount of illicit drug proceeds confiscated in this case do not appear to be excessive in comparison to the resulting governmental and societal costs. Various sources estimate that illegal drug sales produce approximately $80 to $100 billion per year while exacting $60 to $120 billion per year in costs to the government and society. See, e.g., Martin Wolf, Thinking About Drug Legislation, THE FINANCIAL TIMES (London), Sept. 4, 1989, at I-19 (estimating drug revenues in the United States to approximate $80 billion per year); 134 CONG. REC. S15,630 (statement of Sen. Danforth) (estimating drug revenues at $100 billion per year and the costs to the government and society of drugs to total at least
Further, in this case, the defendants only forfeited a portion of the total proceeds that their large-scale drug operation produced over several years, i.e., the proceeds on hand at the time of seizure. The amount of the forfeiture bears a direct relation to the specifiс drug sales that generated those proceeds, but fails
The Supreme Court‘s recent opinion in Austin v. United States, ___ U.S. ___, 113 S.Ct. 2801, 122 L.Ed.2d 347 (1993), does not affect our holding today. Austin, ___ U.S. at ___, 113 S.Ct. at 2803, dealt with whether forfeitures under
IV
When, however, the property taken by the government was not derived from lawful activities, the forfeiting party loses nothing to which the law ever entitled him. Unlike the $130,000 fine in Halper, 490 U.S. at 438, 109 S.Ct. at 1896, the forfeiture of approximately $650,000 of illegal proceeds does not punish the defendant because it exacts no price in liberty or lawfully derived property from him. The possessor of proceeds from illegal drug sales never invested honest labor or other lawfully derived property to obtain the subsequently forfeited proceeds. Consequently, he has no reasonable expectation that the law will protect, condone, or even allow, his continued possession of such рroceeds because they have their very genesis in illegal activity. See generally, Lucas v. South Carolina Coastal Council, ___ U.S. ___, ___, 112 S.Ct. 2886, 2894, 120 L.Ed.2d 798 (1992); Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978). In short, the wrongdoer has nothing, at least nothing to which the law entitles him, to lose from the possible confiscation of the proceeds from his criminal trade. Thus, we believe the forfeiture of proceeds from illegal drug salеs 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. See Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 626, 109 S.Ct. 2646, 2652-53, 105 L.Ed.2d 528 (1989) (stating that “the government does not violate the Sixth Amendment if it seizes . . . robbery proceeds, and refuses to permit the defendant to use them to pay for his defense . . .” because, “[t]he money, though in [the defendant‘s] possession, is not rightfully his“); see also Rex Trailer, 350 U.S. at 153, 76 S.Ct. at 222 n.6 (stating that civil sanction may serve to avoid unjust enrichment). Consequently, instead of punishing the forfeiting party, the forfeiture of illegal proceeds, much like the confiscation of stolen money from a bank robber, merely places that party in the lawfully protected financial status quo that he enjoyed prior to launching his illegal scheme. This is not punishment “within the plain meaning of the word.” Halper, 490 U.S. at 449, 109 S.Ct. at 1902.
Accordingly, we AFFIRM the district court‘s denial of the defendants’ motion to dismiss because the Double Jeopardy Clause does not bar the criminal prosecution of the defendants.
A F F I R M E D.
Notes
(a) The following 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 proceеds 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 . . . .
(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 . . . .