finding that “proceeds” forfeitures do not constitute punishment for purposes of the Fifth Amendment’s Double Jeopardy Clause
How later courts described this case
- finding that “proceeds” forfeitures do not constitute punishment for purposes of the Fifth Amendment’s Double Jeopardy Clause
- concluding that forfeiture of proceeds “can hardly be termed punishment”
- holding that forfeiture of proceeds “can hardly be termed punishment”
- "[P]roceeds forfeitures can never be out of proportion to the `loss' suffered by the government or society. If there has been a finding that certain property, for instance, is forfeitable pursuant to§§ 881(a)(6) as proceeds of drug trafficking, . . . [i]t directly represents at least a portion of the profits and can thus be less than or equal to society's loss, but not more than the loss."
Written by the judges who cited it.
The opinion
DIANE P. WOOD, Circuit Judge,
concurring in the judgment.
I concur in the decision to affirm Smith’s conviction and sentence, but I do so on a much narrower ground. As the Court notes, Smith never filed a claim in the administrative proceedings, and the Colorado real estate was forfeited after his criminal conviction, not before. Because he was not a party to the administrative proceedings, he was not at risk there, and “without risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy.” United States v. Torres, 28 F.3d 1463, 1465 (7th Cir.), cert. denied, — U.S. -, 115 S.Ct. 669 , 130 L.Ed.2d 603 (1994) (citations omitted). See also United States v. Ruth, 65 F.3d 599, 605 (7th Cir.1995). Timing alone defeats his claim with respect to the real estate.
Perhaps in recognition of the frequency with which this issue arises, the government offered a kitchen-sink’s array of arguments in support of affirmance here. Although the Court rightly does not address all of them, it has found merit in the theory that the Double Jeopardy Clause is not implicated by a civil forfeiture coupled with a criminal proceeding when the forfeited property is “found to be proceeds traceable to drug dealing.” Because this case can be affirmed easily on the ground I set forth above, and because civil forfeitures raise a number of difficult questions, I would defer consideration of this theory until we have a case where it would be outcome-determinative.
We risk inadvertently prejudging the legal implications of different kinds of forfeitures when we reach out to decide the issue in an across-the-board fashion. For example, the majority opinion does not make clear what level of proof is necessary to establish that property is the “fruit of the crime.” If proceeds from drug trafficking contribute to the purchase of a valuable asset, such as real estate, is the entire asset forfeitable or must some allocation be performed? How should a spouse’s or other party’s co-ownership be *884 treated? What if the proceeds are the seed money for an investment that later multiplies in value exponentially? The Supreme Court may or may not address some of these issues in several cases where certiorari has been granted. United States v. $405,089.23 U.S. Currency, 33 F.3d 1210 (9th Cir.1994), amended on denial of reh’g, 56 F.3d 41 (1995), cert. granted and matter consolidated with United States v. Ursery, 59 F.3d 568 (6th Cir.1995), — U.S.-, 116 S.Ct. 762 , 133 L.Ed.2d 707 (1996) (Nos. 95-345, 95-346); Michigan v. Bennis, 447 Mich. 719 , 527 N.W.2d 483 (1994), cert. granted, — U.S. -, 115 S.Ct. 2275 , 132 L.Ed.2d 279 (1995).
I do not wish to be understood as either approving or disapproving the majority’s application of the “fruit of the crime” theory as applied to Smith’s particular circumstances. I simply believe that the more prudent course is to decide this case more narrowly, relying on this Court’s well established approach, and to await both further guidance from the Supreme Court and more fully developed records before we develop any theory concerning the application of the Double Jeopardy Clause to civil forfeitures involving the proceeds of drug transactions.