# City of Lake Oswego v. $23,232.23 in Cash > Court of Appeals of Oregon · May 1, 1996 · 140 Or. App. 520 URL: https://www.frixlaw.com/law-library/cases/9579273 ## Case - **Full name:** CITY OF LAKE OSWEGO, a Municipal Corporation, Clackamas County, Oregon, Respondent, v. $23,232.23 IN CASH, Motorola Pager, Defendants, and RODNEY S. MITUNIEWICZ, Appellant - **Court:** Court of Appeals of Oregon - **Decided:** May 1, 1996 - **Citations:** 140 Or. App. 520; 916 P.2d 865; 1996 Ore. App. LEXIS 641 - **Precedential status:** Published - **Opinion:** Dissent by Haselton - **Judges:** Muniz, De Muniz, Edmonds, Haselton, Armstrong, Riggs, Leeson - **Cited by:** 6 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9579273 ## Opinion text HASELTON, J., dissenting. The ultimate reversal of claimant’s criminal conviction did not somehow retroactively ‘Vitiate” the jeopardy attending the prior criminal prosecution. Consequently, because forfeiture pursuant to Oregon Laws 1989, chapter 791, as amended by Oregon Laws 1991, chapter 934, 1 constitutes “punishment” for double jeopardy purposes, and because claimant had previously been subjected to trial and punishment for the same conduct, the forfeiture judgment must be reversed. It is useful, at the outset, to reiterate the salient procedural facts: (1) In June 1992, claimant was convicted of, inter alia, possession of a controlled substance. (2) Claimant appealed that conviction. (3) In August 1992, while claimant’s appeal was pending, and before that appeal was adjudicated, petitioner prosecuted this forfeiture proceeding and, in September 1992, obtained the judgment that is the subject of this appeal. (4) In December 1993, after the entry of a forfeiture judgment, this court reversed and remanded claimant’s criminal conviction. State v. Mituniewicz, 125 Or App 41 , 864 P2d 1359 (1993). Thus, after the criminal conviction and before the reversal of that conviction, claimant was subjected to forfeiture based on the same facts underlying his criminal conviction. The majority acknowledges that the purpose of the Double Jeopardy Clause is to “protect an individual from being subjected to the hazards of trial and possible conviction *544 more than once for an alleged offense.” 140 Or App at 528, citing Green v. United States, 355 US 184, 187 , 78 S Ct 221 , 2 L Ed 2d 199 (1957). The majority also assumes, without deciding, that forfeiture is “punishment” for double jeopardy purposes. 140 Or App at 529-30. Nonetheless, the majority concludes that the forfeiture proceeding did not run afoul of constitutional double jeopardy protections because “[a] reversal and remand of a criminal conviction vitiates the jeopardy appurtenant to the first trial.” 140 Or App at 531-32. I disagree. Even if appellate reversal of the criminal conviction “vitiated” or “nullified” jeopardy, that effect could be prospective only. I know of no Oregon or federal authority — and the majority points to none — suggesting that jeopardy can be somehow retroactively annulled. The simple fact is that jeopardy attached from the time the jury was impaneled in claimant’s criminal trial, see Crist v. Bretz, 437 US 28 , 57 L Ed 2d 24 , 98 S Ct 2156 (1978); that it continued through claimant’s conviction; and that it continued as his appeal was pending. Thus, at the time of the forfeiture proceeding and judgment, jeopardy from the criminal prosecution still existed. The “slate” has not yet been “wiped clean.” See North Carolina v. Pearce, 395 US 711, 721 , 89 S Ct 2072 , 23 L Ed 2d 656 (1969), overruled on other grounds Alabama v. Smith, 490 US 794 , 109 S Ct 2201 , 104 L Ed 2d 865 (1989). The subsequent appellate reversal did not, and could not, alter that contemporaneous reality. 2 The question for double jeopardy purposes reduces, then, to whether the forfeiture proceeding entailed the potential for punishment within the meaning of the Fifth Amendment. If it did, jeopardy from the criminal prosecution and *545 jeopardy from the forfeiture proceeding existed simultaneously. Ergo, double jeopardy. Forfeiture of the sort imposed here is “punishment” triggering the Double Jeopardy Clause. Oregon’s forfeiture legislation was substantially modeled on the federal forfeiture statutes, 19 USC § 1615 et seq. See Note, The New Oregon Civil Forfeiture Law, 26 Will L Rev 449 (1990). The appropriate characterization of the federal forfeiture statutes for double jeopardy purposes is, of course, a matter of deep and passionate dispute among the courts and commentators. Compare United States v. $405,089.23 U.S. Currency, 33 F3d 1210 (9th Cir 1994), amended on denial of reh’g 56 F3d 41 (9th Cir 1995), cert granted U.S. v. Ursery, 116 S Ct 762 (1996), with United States v. Salinas, 65 F3d 551 (6th Cir 1995); United States v. Tilley, 18 F3d 295 (5th Cir 1994). A detailed recitation of my own views would add little. For present purposes, it suffices to say that, on balance, I find the Ninth Circuit’s views, as expressed in $405,089.23 U.S. Currency, 33 F3d at 1222 , to be persuasive: “As the Supreme Court did in Austin [v. United States, 509 US 602 , 113 S Ct 2801 , 125 L Ed 488 (1993)], we conclude that the forfeiture statutes at issue here do not serve solely a remedial purpose. Accordingly, ‘even assuming that [these statutes] serve some remedial purpose, the Government’s argument must fail.’ Id. 509 US at 621 , 113 S Ct at 2812 (emphasis added). The civil forfeiture the government seeks to impose constitutes ‘punishment.’ Because the government is attempting to exact this form of‘punishment’ in a separate proceeding from the claimants’ criminal trials, this action is barred by the Double Jeopardy Clause.” (Emphasis in original; some brackets supplied.) 3 I respectfully dissent. Riggs, Leeson, and Armstrong, JJ., join in this dissent. Those chapters were inserted, but not codified, at the beginning of ORS chapter 166. The authority that the majority invokes is not to the contrary. See, e.g., Pearce; State v. Holmes, 22 Or App 23 , 537 P2d 566 (1975); State v. Gaylor, 19 Or App 154 , 527 P2d 4 (1974). At most, those cases suggest that, after a conviction is reversed, jeopardy is nullified and “the slate wiped clean” so the state may retry the defendant. Pearce, 395 US at 721 . It is unclear whether those cases permit the state, after an appellate reversal and remand, to elect to abandon the criminal prosecution and, for the first time, pursue forfeiture. It may well be that, having elected to pursue a criminal prosecution, the state, on appellate reversal and remand, is bound by that election and must either reinstate the prosecution or abandon the matter entirely, without resort to other punitive options. Treating forfeiture as punishment for double jeopardy purposes will not hamstring effective law enforcement. I am unaware of any legal or practical impediments to amending pertinent criminal statutes so as to permit the state to seek forfeiture in the context of a criminal prosecution. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9579273. Public record. Not legal advice.