Amicus Brief — United States v. One Assortment of 89 Firearms

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No. 82-1047 1

IN THE

SUPREME COURT OF

THE UNITED STATES

October Term, 1982

UNITED STATES OF AMERICA,

Petitioner,

Vv.

ONE ASSORTMENT OF 89 FIREARMS,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF

APPEALS FOR THE FOURTH C] RCUIT

BRIEF OF THE JEROME N. FRANK LEGAL

SERVICES ORGANIZATION OF THE YALE

LAW SCHOOL AS AMICUS CURIAE IN

SUPPORT OF CLAIMANT/RESPONDENT

On the Brief: JOHN L. POTTENGER, JR.

(Counsel of Record)

DEBORAH M. REYIER STEVEN WIZNER

Simpson Thacher MARY A. McCARTHY

& Bartlett SALLY ZANGER

One Battery Park Yale Law School

Plaza Box 401A Yale Station

New York, N.Y. New Haven, CT 07520-7397

10004 (203) 436-2210

Counsel for the

Jerome N. Frank

Legal Services

Organization

\ ted a8 —

a tal « ei ak, Seed,

QUESTION PRESENTED

Is an.in rem forfeiture predi-

cated upon the use of property in a

criminal offense punishment within the

meaning of the Fifth Amendment, such

that the forfeiture is barred by the

prior acquittal of the owner on the un-

derlying criminal charge?

TABLE OF CONTENTS

Interest of Amicus 1

Btatute inveived ....-+-ss+-e-s 5

Summary of Argument 5

ign ae ee en 14

I. Forfeiture Proceedings are

Precluded Whenever the

Forfeiture Would Consti-

tute A Second Punishment

for the Underlying

Groamaames, Comeuce ...+« ss * 14

II. Forfeiture Under 18 U.S.C.

§924(d) Is A Punitive

Sanction Designed to

Punish Criminal Wrongdoing . . 35

A. Congress Intended

Forfeiture to be an

Additional Penalty

for Violation of the

Gu Cemtrei AGt .... « 5 37

B. The Punitive Purpose

and Effect of

Forfeiture Under 18

U.S.C. § 924(d)

Identify the Penalty

as Punishment for

“a. fecal ed a” : Scie 43

0 gaa ee ar ae ee ae 62

-ii-

TABLE OF AUTHORITIES

Cases:

Aponte v. United States, 689

F.2d 10 (2d Cir. 1982), petition

for cert. filed, No.

Seveens, bec. 7, 29@2. « « re

Ashe v. Swenson, 397 U.S. 436

(1969) OO Eta oan

Boyd v. United States, 116 U.S.

616 (1885) ter

Breed v. Jones, 421 U.S. 519

(1975) Sa Se aoe

Calero-Toledo v. Pearson

Yacht Leasing Co.,

416 U.S. 663 (1974)

Chantangco v. Abaroa, 218 U.S.

476 (1910) ;

Coffey v. United States, 116 U.S.

436 (1885)

Connecticut Board of

Pardons v. Dumschat, No.

79-1997, 452 U.S. 458 (1980)

Fisher v. United States, 425 U.S.

391 (1976) é iid ee ee

Flemmins v. Nestor, 363 U.S. 603

(1960) Si ake eit ee cee

Food Conservation Act, In re,

254 F. 893 (D.C. N.Y. 1918)

Garland, Ex parte, 71 U.S. (4 Wall.)

333 (1867) ....

whtiq

Page

43, 50

passim

6, 14

49, 58

passim

0 BS

sersicn v. Hoyt, 16 U.S. (3 Wheat.)

~~~ Ss 0 6 © «© «eee 0 0

Helvering v. Mitchell, 303 J.S.

391 (1937) Se Tele

Huddleston v. United States,

415 U.S. 814 (1973)

Kennedy v. Mendoza-Martinez,

372 U.S. 144 (1962)

Lees v. United States,

150 U.S. 476 (1893)

Lipke v. Lederer,

259 U.&. 55/7 (1922)

Leszynski, In re, 15 Fed. Cas.

397 (No. 8,279) (Circuit Court,

S.0.N.F 1879) A ae

passim

22, 29

McKeehan v. United States, 438 F.2d

739 (6th Cir. 1971)

Mullaney v. Wilbur, 421 U.S.

684 (1974) ae

Murphy v. United States, 272 U.

630 (1926) °

Norris v. Arizona,

No. 82-52

One Lot Emerald Cut Stones and

One Ring v. United States,

409 U.S. 232

(1972)

One 1958 Plymouth Sedan v.

Pennsylvania, 380 U.S. 693

>. 3 SS A 8; 20.

Peters v. TIAA-CREF,

No. 82-794 . A fee

- iv-

47, 49

Ss.

, 29, 26, 60

passim

a2, 51

~» Lie!

Regal Drug Corp. v. Wardell,

260 U.S. 386 (1922)

Rex Trailer Co. v. United States,

350 U.S. 148 (1956)

St. Paul Fire & Marine

Ins. v. Barry, No. 77=

240, 438 U.S. 531 (1978)

Stockwell v. United States,

80 U.S. (13 Wall.) 531 (1871)

Stone v. United States, 167 U.S.

178 (1896) ie ee

The Palmyra, 25 U.S. (12 Wheat.)

1 (1827) Pe or ee Me te

TIAA-CREF v. Spirt,

No. 82-791 .

United States v. 1,922 Assorted

Firearms and 229,553 Rounds of

Assorted Ammunition, 330 F.

Supp. 635 (E.D. Mo. 1971)

United States v. 16,179 Moslo

Italian .22 Caliber Winler

Convertible Starter Guns,

443 F.2d 463 (2d Cir.),

cert. den., 404 U.S. 983

(1971) hs aks Teak

United States v. Chouteau,

102 U.S. 603 (1880) 9, 17,

United States v. Constantine,

296 U.S. 287 (1935). tex ae

United States v. Gates, 25 Fed.

Cas. 1263 (No. 15, men

(S.D.N.Y. 1845)

United States v. LaFranca, 282

U.S. 508 (1930) . ay: Fe

-Ve=-

32, 52

passim

46, 50

18, 39

22, 28

28, 39

United States v. McKee, 26 Fed.

Cas. 1116 (4 Dill. 128)

(No. 15,688) (Circuit Court,

cies aes BET «© 6 bes So, 28. a

United States v. O'Brien, 391

U.S. 367 (1968) ee ee Been, Se

United States v. One Assortment

of Seven Firearms, 632 F.2d

dare. (pan Gal.\"2eee) « « ee 45, 50

United States v. One Distillery,

43 F. 846 (D.C. Cal. 1890),

aff'd on other grounds,

yo oS Pe Me... lj re

United States v. Ulrici, 102

wines. Oe Leeee) 6 6 es o;; 27. ae

United States v. United States

Coin & Currency, 401 U.S.

715 (1971) : :

passim

United States v. Ward, 448

Oe AS ar.) nee passim

United States ex rel. Marcus

vy. meee, 31/ U.S. 537

(1943) PASE Seg

31, 53

Various Items of Personal

Property v. United States,

y+ ie © 2 yh aS. |. >) re

Weinstein v. Bradford,

No. 74-1287, 423 U.S.

See. AO 84) 8 Soe ee, be oe) eee 4

Winship, In re, 397 U.S,

Se eae GPa

Wong Wing v. United States,

See Cee Bee teewey: 6 tw ee Se 6

Constitution and Statutes:

U.S. Constitution:

I ER 8S sk) seca) ee

pS § Eon ee 29, ae

Amenament Vo. . «© «© © « passim

aR gt ee eek

Gun Control Act of 1968,

18 U.S.C. §921 et

seg., Pub.L.No. 90-618,

82 Stat. 1213 passim

Internal Revenue Code of

1954, 26 U.S.C. §§ 5872,

7321-7328 Pee ae 47

Racketeering Influenced and

Corrupt Organizations Act

of 1961, 18 U.S.C. § 1963

(& Supp. 1982), Pub. L. No.

Daten, G4 Stat. B60 . 6 25s bs see

Willis-Campbell Act, 42 Stat.

Bes BERG? Ustdles) Gea «+. uel

ma a tes oe RR) 6g de Fis passim

on waite. O. Bee. a » Bo 6 © oe eee eee

Ss. 2) ee se 0 8 be ee ee eee

SC was s a ee. ow eal oe eee oe 3

ee: Be esee O Oeste) (6). 5. 6 6 os

OT Sa he Er ee aie

a eee OEE a ecw, 6 at fake 47, 48

26 U.S.C. §§ 7321-7328 . . . .._._.__ 48

-vii-

Miscellaneous:

Congressional Record, 90th Cong.,

26 Sess., Juiy 23, 1968 ...46+o @

H.R. Rep. No. 1577, 90th Cong.,

2d Sess., reported in [1968]

U.S. Code Congressional and

Administrative News, 4410 10, 38, 40

S. Rep. No. 1501, 90th

Cong., 2d Sess. 22

cseee) es « « 10

W. Blackstone, Commentaries. 12, 56

H.L.A. Hart, Punishment and

Beememetbe4isey (i908) . « + «© © «

©. Holmes, The Common

i Cees 5 us Pe © = © +s 12, 56

H.L. Packer, The Limits of the i

Criminal Sanction (1968). . i3, 59

In the

Supreme Court of

the United States

October Term, 1982

No. 82-1047

United States of America,

Petitioner,

Vv.

One Assortment of 89 Firearms,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF OF THE JEROME N. FRANK

LEGAL SERVICES ORGANIZATION

OF THE YALE LAW SCHOOL

AS AMICUS CURIAE

IN SUPPORT OF CLAIMANT/

RESPONDENT

INTEREST OF THE AMICUS CURIAE

The Jerome N. Frank Legal

Services Organization (LSO) is the clin-

ical legal education program of the Yale

“—

“ s

ae as

Law School. Through its participating

students and supervising faculty, LSO

provides legal assistance to certain

categories of individuals who could not

otherwise obtain quality legal eunbieeik:

including federal and state prisoners,

children, aliens and mental patients.

LSO's project at F.C.I. Danbury has

counselled over 3000 federal prisoners

since its founding in 1970, making it

one of the most experienced programs of

legal assistance to federal prisoners in

the country. Scores of those prisoners

have had legal difficulties under the

federal forfeiture ilaws, and students

and faculty at LSO have represented sev-

eral inmates in federal district and ap-

pellate courts in Connecticut and New

York, and have counselled clients with

forfeiture-related problems in other

federal districts.

LSO now represents the Pet -

tioner in a case raising issues closely

related to those presented by the in-

stant case. That case, Aponte v. United

States, is now pending before this

Court on a Petition for a Writ of

Certiorari.1/ Also, LSO has appeared

before this Court, both as counsel,2/

1/ Aponte _v. United States, No. 82-

5857, petition filed Dec. 7, 1982.

Counsel understands that the

Petition in this case was submitted

to the Conference on March 18, 1983,

and may be being held pending the

disposition of the instant case.

Although both Aponte and 89 Firearms

require the characterization of a

federal forfeiture penalty as crimi-

nal or civil in nature, the chal-

lenge in Aponte is to the constitu-

tionality under the Due Process

Clause of 21 U.S.C. §861(d) and 19

U.S.C. §1615, which shift the burden

of proof from the Government and

onto the claimant to seized

property. Under § 924(d), the bur-

den of proof by a preponderance o%

the evidence rests with the

Government. See Gov't Br. at 4-5,

22-23. Thus, the statutory con-

struction of 18 U.S.C. §924(d) in

this case, for the purposes of the

Double Jeopardy Clause, will not

fully dispose of the Aponte case.

2/ Connecticut Board of Pardons v.

Dumschat, No. 79-1997, 452 U.S. 458

(1980).

and as amicus,3/ in other cases involv-

ing prisoners’ rights. The law school

faculty who supervise students in LSO

also have worked on other cases before

this Court.4/

In keeping with its role as re-

presentative of the individuals who

suffer forfeitures, and in keeping with

its academic mission,5/ LSO's purpose in

filing this amicus brief is to present

facts and legal principles necessary to

this Court's full consideration of the

nature and implications of the federal

3/ See, e.g., Weinstein v. Bradford,

No. 74-1287, 423 U.S. 147 (1975).

4/ Se e.g., , TIAA-CREF v. Spirt, No.

aa. 791; Norris v. Arizona, No. 82-

52; Peters Vv. TTAR-CREF No. 82-794;

St. Paul Fire & Marine Ins. v.

Barry, No. 77+240, 438 U.S. 531

5/ For example, LSO faculty and stu-

dents have prepared Congressional

testimony and several scholarly pap-

ers concerning the federal for-

feiture laws, including a student

Note scheduled to appear in a forth-

coming issue of The Yale Law

Journal.

daa

bess, & "

a tae!

forfeiture statutes.

Both parties have consented to

the filing of this amicus brief.

STATUTE INVOLVED

Section 924(d) of Title 18 provides:

Any firearms or ammunition

involved in or used or intended

to be used in, any violation of

the provisions of this chapter

or any rule or regulation prom-

ulgated thereunder, or any vi-

Olation of any other criminal

law of the United States, shall

be subject to seizure and for-

feiture and all provisions of

the Internal Revenue Code of

1954 relating to the seizure,

forfeiture, and disposition of

firearms, as defined in section

5845(a) of that Code, shall, so

far as applicable, extend to

seizures and forfeitures under

the provisions of this chapter.

SUMMARY OF ARGUMENT

The Court of Appeals for the

Fourth Circuit, sitting en banc, held in

this case that a punitive forfeiture un-

der 18 U.S.C. § 924(d) is precluded by a

prior acquittal of the owner on the un-

derlying criminal charge. That ruling

is required by the Double Jeopardy

Clause and supported by a 'ong line of

decisions in this Court.

The prohibition of the Double

Jeopardy Clause is triggered whenever

someone is twice put in jeopardy of

punishment;6/ whether forfeitures under

18 U.S.C § 924 (d) are precluded fol-

lowing a criminal acquittal thus depends

upon whether the forfeiture is

punishment.7/ As a genre, however, for-

feitures serve many purposes. Like

fines, forfeitures can be used either to

further the remedial goals of government

or to vindicate the punitive policies of

the criminal law.

Thus, unlike infamous punish-

ments,8/ forfeitures are not classified

, @.g., Breed v. Jones, 421 U.S.

19, 528-29 (1975).

7/ Compare Coffey v. United States, 116

U.S. 436, 443 (1885), wi Helverin

v. Mitchell, 303 U.S. 391, 398-399

8/ See, on9 nong_e ee United

ae U.S.

as criminal penalties on the basis of

their inherent nature. Rather, they are

Classified according to the purpose that

they serve in a given case.9/

Consequently, it is only by analyzing

the punitive versus remedial goals of

Congress and the effect of the statute

that the legal nature of the sanction

may be discerned.10/

This dependent nature of for-

feitures means that forfeitures are

uniquely susceptible to misuse as es-

sentially criminal sanctions under the

guise of civil remedies. It is for this

reason that in cases where forfeitures

and other penalties are enforced in

civil proceedings, this Court has in-

quired not only into the manifest

9/ Bejverina .y.- Mitshedl. 303 U.S.

10 gy SoS FH ma,

States v, Constantine, 296 U.S. 2680,

legislative intent in labeling the

sanction, but also into the underlying

purpose and the effect of the

sanction.11/ Whether or not the pur-

pose and effect of the sanction is puni-

tive depends largely upon whether or not

the penalty is imposed upon someone as a

consequence of his qwn, knowingly com-

mitted criminal acts.12/

Once identified as punitive or

remedial, the functional, legal nature

of the forfeiture will dictate whether

the constitutional provisions restrict-

ing the imposition of criminal punish-

ment are applicable. The rule of

Coffey v. United States, 116 U.S. 436,

Se ee

443 (1885), as endorsed and refined by

almost a century of judicial

interpretation,13/ is clear: a punitive

forfeiture eccasioned by criminal

misconduct is barred by an acquittal on

the underlying criminal offense.

In this case, the Court of

Appeals recognized the punitive function

of forfeitures under 18 U.S.C. § 924(d)

and applied the rule of Coffey. That

result is inescapable under the test set

forth by this Court for the classifica-

tion of a penalty as essentially crimi-

| 13/ See, e.g., One Lot Emeraid Cut

Stones and One Ring Vv. United

States, 409 U.S. 232, 235-236

(1972); Helversng v. Mitchell, 303

U.S. 391, 98, 405-4 (1937);

United : 282 U«.S.

102. «2U~LS.

;

, 26 Fed, Cas.

ircuit Court,

E.D. Mo. 1877) : ue cases

cited at 27 saad 11 ? 41.

nal or civil in United States v. Ward,

448 U.S. 242, 248-49 (1980).

First, the legislative history

of section 924(d) forfeitures reveals

that the manifest legislative intent in

creating 18 U.S.C. § 924(d) was to pun-

ish and deter offenses against the crim-

inal law.14/ Moreover, Congress's intent

in 18 U.S.C. § 924(d) was to punish by

forfeiture only those persons found

guilty of the underlying criminal

offense; forfeiture following acquittal

does not appear to be authorized by the

statute.15/

Second, according to the list

of factors enumerated by this Court in

Kennedy v. Mendoza-Martinez, 372 U.S.

144, 168-69 (1962), and adopted in Ward,

14a/ eee Pub. L. No. 90-618, Section 101;

-R. 1577, 90th Cong... 2d Sess.

reported 28 {1968} U.S. Code

ongressiona and Administrative

News, 4410, 4412-13; S.R. 1501, 90th

Cong., 2d Sess. (1968).

15/ See footnote 14, supra.

the purpose and effect of forfeiture un-

der 18 U.S.C. § 924(d) is to punish

criminal wrongdoing. This punitive goal

of the statute is evidenced primarily by

the fact that forfeiture under §924(d)

is predicated not only upon criminal

conduct, but also upon the 'bad intent’

which is a requisite for all punishment.

Specifically, 18 U.S.C.

§ 924(d) is designed to punish only

those persons who -- along with their

property -- are ‘significantly involved

in criminal enterprise.’ By authorizing

remission and mitigation of forfeiture

for persons who are innocent of the un-

derlying offense,16/ the statute implic-

itly contains a requirement of scienter

in justification of forfeiture.

Congress thus singled out for the

penalty of forfeiture only those persons

16/

a es See a

who are actively guilty of criminal

wrongdoing. That selection shows that

the sanction is punishment.

The other Mendoza-Martinez

tests confirm this conclusion. For

example, forfeitures traditionally have

served as punishment, 17/ and forfeiture

under § 924(d) is an affirmative disa-

bility in that it involves a governmen-

tal taking of private property, and not

just the revocation of a benefit granted

as a matter of governmental largesse.18/

Forfeitures under § 924(d) also promote

the traditional aims of punishment shen

retribution and deterrence.19/

Finally, there is no distinct

alternative purpose for these for-

feitures other than punishment for cri-

17/ ©. Holmec, The Common Law, Lecture 1

at 10, 34 (1881); W. Blackstone,

Commentaries, *375.

19/ See footnote 14, supra.

Ee Se ee oe a a ee a ee ee

minal wrongdoing. The argument that the

forfeiture is preventative in that it

keeps dangerous firearms out of the

stream of illegal commerce assumes’ that

the owner of the firearms would sell

them illegally but for the forfeiture --

despite the fact of acquittal on the

charge of illegal sale. This purpor-

tedly preventative goal thus collapses

into incapacitation with respect to

criminal behavior, and, therefore, is

not distinct from the goals of

punishment. 20/

In sum, beth the legislative

history of forfeiture under 18 U.S.C.

§ 924(d) and the purpose and effect of

the sanction repeatedly invoke the spec-

tre of criminal guilt. The forfeiture

thus constitutes punishment within the

meaning of the Fifth Amendment, and,

20/ See H.L. Packer, The Limits of

Criminal Sanction (1968) at 48-53.

under Coffey, may not be visited upon an

individual in a civil proceeding follow-

ing his acquittal on the underlying

criminal charges.

ARGUMENT

I. FORFEITURE PROCEEDINGS ARE PRECLUDED

WHENEVER THE FORFEITURE WOULD CON-

STITUTE A SECOND PUNISHMENT FOR THE

UNDERLYING CRIMINAL CONDUCT.

The Double Jeopardy Clause

provides that no one "shall for the same

offense be twice put in jeopardy of life

or limb." In application, the Clause

has come to mean that no one may twice

be punished -- or twice be put in

jeopardy of punishment -- for the same

offense. Breed v. Jones, 421 U.S. 519,

528-29 (1975).

This principle was invoked by

this Court with respect to forfeitures

predicated upon criminal misconduct in

Coffey v. United States, 116 U.S. 436

(1885), the case primarily relied upon

by the Fourth Circuit in this case. In

Coffey this Court observed:

There could be no new trial of

the criminal prosecution after

the acquittal in it; and a sub-

sequent trial of the civil

[forfeiture] suit amounts to

substantially the same _ thing

[T]he facts cannot be

again litigated between [the

parties], as the basis of any

statutory punishment.

at 443 (emphasis supplied).21/

Coffey involved a forfeiture

which Congress had listed right along-

1/ Although Coffey defined the rule in

terms of preclusion and collateral

estoppel, the opinion relied heavily

on United States v. McKee, 26 Fed.

Cas. 1116 (4 Dill. 128) (No. 15,688)

Circuit Court E.D. Mo. 1877), which

clearly was decided on grounds of

double jeopardy (see discussion,

infra, pp. 17-18). 116 U.S. at 445.

Moreover, this Court has squarely

held that the rule of collateral es-

toppel in federal criminal law is

embodied in the Fifth Amendment

guarantee against double jeopardy.

Ashe v. Swenson, 397 U.S. 436, 445-

46 (1969). Indeed, Ashe cited

Coffey for the ruie of collateral

estoppel in federal criminal law,

id., at 443 n.7, thus indicating

retrospectively that the decision in

Coffey would be required under the

Double Jeopardy Clause.

side fine and imprisonment as a punish-

ment for criminal behavior. 116 U.S. at

437. The statute authorizing forfeiture

in the instant case, 18 U.S.C. § 924,

is structured in precisely the same way,

demonstrating that -he forfeiture is

simply an additional statutory punish-

ment for conduct already defined to be

a crime.22/

The Government has acknowledged

that the real "bone of contention" in

this case is this characterization of

forfeiture under 18 U.S.C. § 924(d) as

punitive for the purpose of applying the

rule of Coffey. (Gov't Br. at 10.) The

Government also has asserted, however,

that Coffey is the "single aged

precedent" upon which the Fourth Circuit

based its entire holding in this case,

and has attempted to discredit the rule

of that seminal precedent. (Gov't Br.

22/ See discussion infra at pp. 37-39.

EEE

at 11-13. ) A review of the cases both

before and after Coffey reveals,

however, that this Court frequently has

reaffirmed the rule of Coffey that for-

feitures and penalties which serve puni-

tive purposes must be treated as crimi-

nal sanctions which entail jeopardy of

punishment.

For example, Coffey was pre-

saged at the Circuit Court level in 1877

by United States v. McKee, 26 Fed. Cas.

1116 (4 Dill. 128) (No. 15,688) (Circuit

Court, E.D. Mo. 1877), and in the

Supreme Court by United States Vv.

Chouteau, 102 U.S. 603 (1880), and

United States v. Ulrici, 102 U.S. 612

(1380). In McKee, Justice Miller, rid-

ing Circuit, noted that the government's

suit seeking a penalty of double the

amount of taxes due on distilled

spirits -- following acquittal on crimi-

nal charges fof the same acts -- war

prohibited as an attempt to punish twice

for the same crime. Id. at 129-130.

Similarly, this Court ruled in

Chouteau and Ulrici that a purportedly

civil penalty for violation of federal

tax law was precluded by the

Government's prior settlement with the

defendant for the offense charged.

Given that the civil action and the

criminal prosecution followed upon the

same criminal transactions, the Court in

Chouteau held that the monetary penalty

prescribed for the offense was intended

as part punishment for it. 102 U.S. at

610. Therefore:

[The defendant] has been pun-

ished in the amount paid upon

the settlement for the offence

with which he was charged, and

that should end the present

action, according to the prin-

ciple on which a former acquit-

tal or conviction may be in-

voked to protect against a

second punishment for the same

offence. To hold otherwise

PA.

The cases following Coffey also

illustrate this Court's adherence to the

rule that punitive sanctions cannot hide

behind civil labels of convenience in

contravention of constitutional princi-

ples. For example, Boyd v. United

States, 116 U.S. 616 (1885), like both

Coffey and the instant case, involved a

forfeiture which was prescribed by

statute, along with fine and imprison-

ment, as a penalty for a criminal of-

fense. Id. at 617. The issue before

the Court was whether the claimant to

the tana property could invoke the

Fourth and Fifth Amendment protections

against unreasonable search and seizure

and compulsory self-incrimination. Cen-

tral to the Court's reasoning in sunpbee

of the claimant's position was the

Court's conclusion that:

. proceedings instituted

for the purpose of declaring

the forfeiture of a man's

property by reason of o

c tt m, ou ey

e civil in form, are in their

nature, criminal

Id. at 634 (emphasis supplied). See

lso Lees v. United States, 150 U.S.

476, 480 (1893) (applying Boyd because

civil proceeding to collect punitive

monetary penalty for the importation of

aliens in violation of federal statutory

prohibition "unquestionably criminal in

its nature") .23/

23/ Although not all of the declarations

of Boyd have "stood the test of

time, Fisher v. United States, 425

U.S. 391, 407 (1976), the conclusion

that forfeitures incurred by reason

of the commission of criminal of-

fenses "are in their nature

criminal" has survived oo the

Government's statement to the con-

trary notwithstanding. Compare

Fisher, 425 U.S. at 407-408, with

Gov't Br. at 38. That rule also has

been reinforced by other recent

cases. See, e.g., United States v.

United States Coin and Currency, 401

U.S. 715, 718 (1971) (monetary for-

feitures occasioned by criminal of-

fenses indistinguishable from crimi-

nal fines); One 1958 Plymouth Sedan

Vv. Renney iva. 22. 380 U.S. 693, 697-

. (1965) (emphasizing "“author-

itative statement" and "continuing

validity" cf Boyd holding that such

forfeitures are criminal in nature).

Indeed,

(

(Footnote continued)

Eo eee

rh 21

The Court returned to the dou-

ble jeopardy question in Stone v. United

States, 167 U.S. 178 (1896). In that

case, the Court carefully distinguished

"property...forfeited to the United

States on account of the violation of

certain [criminal] statutes," id. at

184 (emphasis in original), from a fine

"for the value of property wrongfully

converted by the defendant." Id. at

187. This distinction between punitive

sanctions and remedial damages is one

which later became firmly ensconced in

American jurisprudence in Helvering v.

Mitchell, 303 U.S. 391 (1937), and which

forms the basis of the test for clas-

sifying penalties recently set forth in :

(Footnote Soutinued)

heavily relied on by the Government

in this case ( , Gov't Br. at 14-

15, 41), acknow ges that the diff-

ys erence between forfeitures as civil

sanctions and forfeitures as crimi-

nal penalties depends upon whether .

or not the forfeiture is predicated Aa

=e re areas wrongdoing. ld.

n. 6.

United States v. Ward, 448 U.S. 242,

248-249 (1980).

The Government thus has glided

over the most important element in this

case, the nature of the conduct for

which the forfeiture is imposed. The

decisions of this Court emphasize that

the characterization of a forfeiture

penalty as "criminal" or "civil" is

largely determined by the classification

of the conduct which justifies the

penalty as criminal or not. 24/ Tt dis

for this reason that this Court has em-

phasized the importance of personal cul-

Fistsy, 4 U.S. y+ # ‘

; United States vy. ed

Sta Oin & Currency, 401 U.S.

‘ B (1% )3; 956 Pl ymout.

pecan » Fenn ania, 30 U.S. 65 °

fe 5); Jni tec

| 259 U.S. 557,

pability in distinguishing punitive from

remedial sanctions.25/

In making this careful

distinction, the Court in Stone reaf-

firmed the correctness of the Coffey

decision, emphasizing that:

The proceeding by libel against

Coffey, although civil in form

was penal in its nature,

because it sought to have an

adjudication of the forfeiture

of his property for acts

prohibited. It was, as we have

seen, a case in which a

punishment, denounced by

statute, was sought to be in-

flicted as a consequence of

the existence of facts that

were in issue and had been

finally determined against the

United States in a criminal

proceeding.

United States v. United States Coin

and Currency, 401 U.S. 715, 7ae

(1971 1) (forfeitures are punishment

soot they are intended to impose a

penalty only upon those who are sig-

nificantly | involved in a criminal

wapeinen, 372 “Oe ria taets

( (the characterization of a

sanction as punitive depends, among

other things, upon whether the sanc-

tion "comes into play

finding of ’

the behavior ecienter” it appliés

already a crime").

Id. at 187 (emphasis supplied) .26/

The Court in Stone also ac-

knowledged that when a sanction pursued

by the Government is punishment and not

damages, the rule is that:

The judgment of acquittal in

the criminal proceeding ascer-

tained that the facts which

were the basis of the

proceeding, and are the basis

of this one [for forfeiture],

and which are made by the stat-

ute the foundation of any

punishment, personal or pecuni-

ary, did not exist.

Id. at 186, quoting, Gelston v. Hoyt, 16

U.S. (3 Wheat.) 246 (1818).27/ This is

26/ Although the Court finally deter-

mined that the sanction in Stone was

not punishment, Coffey was not

weakened by this distinction. In a

later case, ultimately decided under

Philippine local law rather than

constitutiongl principles, the Court

noted that the punitive character of

the civil action at issue would

"bring it under the principles of

GG rather than Stone."

t co v. Abaroa, 218 U.S. 6,

(1910).

27/ The Solicitor General points to the

Stone case for the proposition that

(Footnote continued)

not to say that the judgment of a court

can, in a metaphysical sense, establish

as a matter of fact that past incidents

either did or did not occur. (But cf.

Gov't Br. at 9.) Rather, the rule is

that society accepts the judgment in a

court of law as a conclusive statement

of the facts which we will henceforth

(Footnote continued)

that when the burden of proof diff-

ers as between a criminal and a

civil proceeding, "'the judgment in

the criminal case does not make the

issues in the present [civil] case

res judicata,'" (Gov't. Br. at 15,

quoting Stone at 188). The point

made by the Stone case, however, is

that the difference in the burden of

proof as between two proceedings is

only relevant given the prior deter-

mination that the first is criminal

while the second is not. When both

involve the imposition of

punishment, as was the case in

Coffey and as is true in this case,

[t]he judgment of a court of con-

current jurisdiction, directly upon

the point, is, as a plea, a bar, or,

as evidence, conclusive <vea's

Stone at 186, oting Co , 116

U.S. at 445. Properly analyzed,

Stone thus supports Respondent, not

the Government. See a oF iC

~ @:

use to guide our behavior toward the

parties involved. When this behavior

entails the imposition of punishment in

both a criminal trial and a punitive

forfeiture proceeding, the judgment of

the former is conclusive for the purpose

of the latter.

The case of Murphy v. United

States, 272 U.S. 630 (1926), is to the

same effect. The Court in Murphy recog-

nized that if the suit for -he abatement

of the nuisance of a distillery was in-

deed a punishment for violation of

Prohibition, then a prior acquittal on

criminal charges would bar the action.

Id. at 632. The Court concluded,

however, that the abatement was not

punishment, but regulation. 28/

28/ As support for its conclusion, the

Court noted that defendant could

avoid the closing of his property by

simply posting a bond conditioned

against its illegal use. 272 U.S.

at 632. Here, by contrast, the

seizure, forfeiture, and destruction

of Respondent's firearms constitutes

’ (Footnote continued)

United States v. LaFranca, 282

U.S. 568 (1930), also underscores the

importance of close judicial scrutiny of

burdens imposed upon individuals at the

hands of Government. In that case, the

Court held that a civil proceeding to

collect a tax for the illegal sale of

liquor was precluded by a prior criminal

conviction, because the monetary fine

purported by Congress to be a tax was in

fact imposed for the purpose of

punishment. Id. at 572. The fact that

the penalty was recoverable in a civil

proceeding was irrelevant:

(Footnote continued)

a permanent deprivation of his

property and, possibly, liberty as

well. (See Amendment III, U.S.

Constitution. ) Although the

Government asserts that the purpose

of.the forfeiture is to guarantee

that these firearms will not be sold

in unregulated channels (Gov't Br.

at 33), the forfeiture without the

alternative of a bond to ensure the

desired licensing shows that the

sanction is primarily designed to

punish Respondent. See discussion,

infra, at 59-60.

But an action to recover a

penalty for an act declared to

be a crime is, in its nature, a

punitive proceeding, although

it takes the form of a civil

action; and the word

"Srosecution” is not inapt to

describe such an action.

Id. at 575.29/

Still another case to look

beyond the label applied by Congress to

the substance of a monetary exaction was

United States v. Constantine, 296 U.S.

280 (1935). There, again, an ostensible

tax on the sale of liquor was found un-

constitutional as a penalty in disguise,

which should have fallen with the repeal

cf the Eighteenth Amendment. The Court

noted in its analysis that if the pur-

pose of the statute was "to punish

29/ LaFranca was decided under a federal

statute which only addressed the ef-

fect of conviction upon subsequent

prosecution. Willis-Campbell Act,

c. 134, 42 Stat. 222, 223 (U.8.C.

Title 27, §3), quoted at 282 U.S.

S571. In a case of acquittal, S2ELEY

would . have barred the civi

proceeding, given the Court's une-

quivocal statement that the tax at

issue was in reality punishment. Id.

at 572. Cf. Gov't Br. at 13.

rather than to tax," then what is "in

reality a penalty .. . cannot be con-

verted into a tax by so naming it." Id.

at 294.30/

In the instant case as well,

the character of forfeiture under 18

U.S.C. § 924(d) as punishment is not

diluted by the denomination of the

penalty as a forfeiture, or by the

provision of civil proceedings for its

enforcement.

Helvering v. Mitchell, 303 U.S.

391 (1938), was the watershed case of

this era, and it, too, followed the

course laid out by Coffey. In that case

the Court, noted:

That \equscea on a criminal.

charge i8 not a bar toa civil

action by the Government, reme-

Gial in its nature, arising out

of the same facts on which the

30/ See also Lipke v. Lederer, 259

U.S. 557, 562 (1922)(ostensible tax

on liquor "clearly involves the idea

of punishment for infraction of the

law -- the definite function of a

penalty"); Regal D i

Wardell, 260 U.S. 386 BLE Peete

ee sh gs tia

Cee aaa a ies pou: ee ee ee re Ty Sa

criminal proceeding was based

has long been settled.

Where the objective of the sub-

sequent action likewise is

punishment, [however], the ac-

quittal is a bar, because to

entertain the second proceeding

for punishment would subject

the defendant to double

jeopardy; and double jeopardy

ae precluded by the Fifth

Amendment whether the verdict

was an acquittal’ or a

conviction.

Id. at 397-98 (emphasis

supplied). ‘

Thus, the Double Jeopardy

Clause is always applicable if the sanc-

tion "was intended as punishment, so

that the proceeding is essentially

criminal". Helvering v. Mitchell, 391

at 398-99. It is only when the second

action is instituted for remedial pur-

poses that the oft-cited statement that

"Congress may impose both a criminal and

a civil sanction in respect of the same

act or omission," id. at 399, becomes

relevant.31/

In United States ex rel. Marcus

v. Hess, 312 U.S. 537 (1943), the prin-

ciple of Coffey was again implicitly

reaffirmed through adherence to Helver-

ing's punitive/remedial distinction:

31/ In Helvering v. Mitchell, the sanc-

tion at issue was a revenue measure

designed to protect the Government's

financial interests by providing

that a penalty in the amount of 50%

of a tax deficiency would be as-

sessed if any part of the deficiency

was due to fraud with intent to

evade tax. The Court made clear

that sanctions imposed to discourage

fraudulent attempts to evade the tax

"may confessedly be either criminal

er civil," 391 U.S. at 399. The

Court noted, however, that additions

to tax "are provided as a safeguard

for the protection of the revenue

and to reimburse the Government for

the heavy expense of investigation

andthe loss resulting from the

taxpayer's fraud ... ‘It must

therefore be considered remedial as

providing indemnity for loss.'" Id.

at 401, quoting, Stockwell v. United

States, 80 U.S. (13 Wall.) 531

(1871). This case, by contrast,

does not involve +he revenue, and

Respondent has done nothing to en-

danger the Government fisc. The

Government's interest in this case

derives from its police power, and

the forfeiture is thus punishment.

See discussion, infra, at pp. 52-54.

Helvering .. . emphasized the

line between civil, remedial

actions brought primarily to

protect the government from

financial loss and actions in-

tended to authorize criminal

punishment to vindicate public

justice. Only the latter sub-

ject the defendant to

"jeopardy" within the constitu-

tional meaning.

Id. at 548-49. See also Rex Trailer Co.

Inc. v. United States, 350 U.S. 148,

150-151 (1956).

This characterization of

Heivering, made six years after the case

was decided, illustrates the mistake

made by the Solicitor General in relying

on Helvering for the proposition that

the type of procedural rule invoked

takes precedence over the classification

of the sanction for constitutional

analysis. (Gov't Br. at 38-39.)

In Helvering, Justice Brandeis

rejected this sort of procedural

analysis and announced a new rule to

govern the characterization of a

penalty:

The distinction taken

between sanctions | it are

“

ahs A gild

remedial and those that are

punitive has not generally been

specifically enunciated... the

[prior] cases have usually at-

tempted to distinguish between

the type of procedural rule

involved, rather than the kind

of sanction being enforced."

303 U.S. at 400 n.3 (1937) (emphasis

supplied). Thus, under Helvering,

proceedings for penalties which are "in

their nature criminal," (Boyd, 116 U.S.

at 634), are precluded by a prior ace

: quittal as attempts to punish ai second

time, simply by virtue of their nature

as punishment. Id. at 399, 405-405.32/

The Government's attempt to resurrect a

pre-Helvering analysis should be

rejected.

In sum, Respondent's claim and

the en banc decision of the Court of

32/ Punishment is a trigger for many

constitutional procedural guaran-

tees, from the Fourth and Fifth

Amendment protections against un-

reasonable search and seizure and

against compulsory self-

incrimination, Boyd, 116 U.S. at

637, to the locus and magnitude of

the burder of proof.

Ww 421 U.S. 684 (1974);

a, eee vig byint in tae ae

]

be i?

Appeals derive sustenance from much more

than "a_ single aged precedent --

Coffey." (Gov't Br. at ll.) The fore-

going review illustrates that history is

replete with instances of judicial

scrutiny of legislative purpose to

determine whether legislative enactments

are punitive in nature. When the pur-

pose is punishment, the rule of Coffey

applies.

Indeed, only the issue of pun-

ishmer.t is of sufficient constitutional

moment to induce the courts to investi-

gate legislative purpose at all; in

other areas, the motives and intentions

of Congress invariably are beyond the

scope of judicial’ review. See United

States v. O'Brien, 391 U.S. 367, 383

n.30 (1968). The real base of authority

for Coffey, then, is thus the historic

judicial function to safeguard constitu-

tional rights from the encroachment of :

Government power.

II. FORFEITURE UNDER 18 U.S.C. § 924(d)

1S A PUNITIVE SANCTION DESIGNED

TO PUNISH CRIMINAL WRONGDOING.

Given that, under Coffey and

its progeny, the Double Jeopardy Clause

bars a punitive forfeiture following the

owner's criminal acquittal, the task for

the Court in this case is to determine

whether forfeiture under 18 U.S.C.

§ 924(d) is a punitive or a remedial

sanction. With this the Government

agrees (Gov't Br. at 10, 17).

In United States v. Ward, 448

U.S. 242 (1980), this Court prescribed a

two-pronged test for distinguishing

criminal from civil penalties:

First, we have set out to

determine whether Congress, in esta-

blishing the penalizing mechanism,

indicated either expressly or im-

pliedly a preference for one label

Oe. SaO CCOr. 4 Second, where

Congress has indicated an intention

to establish a civil penalty, we

have inquired further whether the

statutory scheme was so punitive

either in purpose or effect as to

negate that intention.

Id. at 248-249 (citations omitted).

The major factors to be evalu-

ated in. making such an analysis of

eae

"purpose" and "effect" were first enum-

erated by this Court in Kennedy ov.

Mendoza-Martinez, 372 U.S. 144 (1962):

Whether the sanction involves

an affirmative disability or

restraint, whether it has histori-

cally been regarded as a punishment,

whether it comes into play only ona

finding of scienter, whether its

operation will promote the tradi-

tional aims of punishment --

retribution and deterrence, whether

the behavior to which it applies is

already a crime, whether an alterna-

tive purpose to which it may ration-

ally be connected is assignable for

it, and whether it appears excessive

in relation to the alternative pur-

pose assigned.

Id. at 168-69 (footnotes omitted).

Applying the Ward analysis to

forfeitures of firearms under 18 U.S.C.

§ 924(d), it appears that Congress's

goal in providing for forfeitures along

with fines and imprisonment was to deter

and punish those who traffick illegally

in firearms. Even if Congress did not

specifically so intend, however, the

purpose and effect of the statute under

the Mendoza-Martinez indicia mark this

forfeiture sancticn as punishment.

A. Congress Intended

Forfeiture to be an

Additional Penalty

for Violation of

the Gun Control Act.

The first prong of the Ward

test requires an investigation into the

express or implied preference of

Congress for a criminal or civil label

in authorizing a sanction. With respect

to 18 U.S.C. § 924(d), the sesaenie of

the statute and the legislative history

underlying the forfeiture provision

reveals that the forfeiture was intended

to be punishment for criminal

wrongdoing.

It is the structure of 18

U.S.C. § 924 which primarily reveals the

intent of Congress to impose forfeiture

under this statute as punishment for

crime. The statute is entitled

"Penalties", and subsections (a) and (bb)

of the statute specify criminal fines

and imprisonment in the respective

amounts of up to $5,000 and five years,

and $10,000 and ten years. Subsection

(c), which is now known as § 924(d),33/

then authorizes forfeiture as an addi-

tional penalty for the illegal use of

firearms, whether that use entails sale

without a license, or use in a violent

crime. See H.R. No. 1577, reported in

[1968 ]} U.S. Code Congressional and

Administrative News, 4410, 4423.

The statutes at issue in Coffey

and Boyd also provided seriatim for

imprisonment, fine and forfeiture, and,

largely for this reason, this Court une-

quivocally characterized the forfeitures

at issue in those cases as punishment.

Coffey, supra, 116 U.S. at 437; Boyd,

supra, 116 U.S. at 617. The structure

of § 924 likewise reveals that Congress

33/ The final version of Pub. L. No. 90-

618 redesignated former subsection

detines the use or possession of a

firearm in the commission of a

felony as an additional criminal of-

fense and prescribes an additional

term of imprisonment of one to ten

years (two to twenty-five years for

second and subsequent convictions).

intended this forfeiture to be

punishment.34/

The legislative explanation of

the Gun Control Act also supports the

conclusion that § 924 contains an arse-

nal of "Penalties" to be imposed as pun-

ishment for criminal misconduct under

the Act. Section 101 of the Gun Control

Act (Pub. L. No. 90-618) contains a rare

Congressional proclamation as to the

purpose of the legislation:

The Congress hereby de-

clares that the purpose of this

title [which amended this

chapter] is to provide support

oc Federal, State, and local

34/ The fact that forfeitures under 18

U.S.C. § 924(d) are accomplished via

civil in rem proceedings is not

dispositive of the nature of the

penalty that Congress intended to

create undet this statute. What is

important is Congressional intent

with respect to the function of the

sanction. United States Vv.

LaFranca, 282 U.S. 568, 575 (1930)

(the form of a civil action does not

change the punitive nature of the

penalty); United States v. Chouteau,

102 U.S. 603, 611 (1880) ("The term

‘penalty' involves the idea of pun-

ishment and its character is not

changed b the mode in which it is

inflicted.").

Pub.

law enforcement officials in

their fight against crime and

violence, and it is not the

purpose of this title to place

any undue or unnecessary

Federal restrictions or burdens

on law-abiding citizens with

respect to the acquisition,

possession, or use of firearms

appropriate to... any

lawful activity.

L. 90-618, Section 101. See also

Cong. Rec., 90th Cong. 2d Sess., July

23,

1968 p. 22773.

The official report of the

House of Representatives on the Gun

Control Act as a whole also reveals this

same broad intent to devise a statute to

punish criminals:

H.R.

The increasing rate of crime

and lawlessness and the growing use

of firearms in violent crime clearly

attest to a need tp strengthen

Federal regulation of interstate

firearms traffic.

Handguns, rifles, and shotguns

have been the chosen means to exe-

cute three-quarters of a million

people in the United States since

1900. The use of firearms in vio-

lent crime continues to increase

today. . . . No civilized society

can ignore the malignancy which this

senseless slaughter reflects.

No. 1577, 90th Cong. 2d Sess.,

reported in {1968} U.S. Code

‘aw

Congressional and Administrative News,

4410, 4412-13. |

From this analysis of the puni-

tive purpose of forfeiture under

§ 924(d), it also follows that insofar

as § 924(d) contemplates punishment for

crime, it authorizes forfeitures only

following conviction. Acquittal consti-

tutes a judicial determination, conclu-

sive and binding, that there was no

"violation" of a law specifying a crime

upon which to hang a forfeiture of

property "used or intended to be used in

any violation" of the criminal law.35/

Thus, for the Government now to

deprive Respondent of his property, in

consequence of a "violation" that has

been found to be lacking, not only runs

afoul of the Double Jeopardy Clause,

because the forfeiture was intended by

35/ A separate forfeiture proceeding

following conviction is not barred

(Footnote continued)

Congress to be punishment, it also is

not authorized by the terms of the stat-

(Footnote continued)

by the Double Jeopardy Clause when

the forfeiture is authorized as a

cumulative penalty, to be imposed in

addition to fine and imprisonment.

In re Leszynski, 15 Fed. Cas. 397

(Case No. 8,279) (Circuit Court,

S.D.N.¥Y. 1879). Forfeiture as a

cumulative penalty also may be im-

posed following a special verdict by

the jury in a criminal proceeding

that the property seized was used --

beyond a reasonable doubt -- in the

crime charged. See the forfeiture

provisions of the Racketeering

Influenced and Corrupt Organizations

Act of 1961, 18 U.S.C. § 1963, Pub.

L. 91-452, 84 Stat. 943, and Federal

Rule of Criminal Procedure 3l(e).

When the forfeiture is specified by

statute as an alternative penalty to

imprisonment or fine, however, then

the forfeiture is barred equally by

acquittal or conviction on the crim-

inal charge; when the Government is

offered a choice of penalties, it

must be held to that choice, even if

the crime which would justify the

forfeiture is proved beyond a reas-

onable doubt in the criminal

proceeding. See In re Food

Conservation Act, 254 =Ss*F.« 893

(D.C.N.Y. 1918); United States vy.

One Distillery, 43 F. 846 (D.C. Cal.

1890), aff'd on other grounds, 174

U.S. 149 (1899); United States v.

Gates, 25 Fed. Cas. 1263 (No.

15,191) (S.D.N.Y. 1845).

ute, because it is intended to follow

conviction.36/

B. The Punitive Purpose and

Effect of Forfeiture

Under 18 U.S.C. § 924(d)

Identify the Penalty as

Punishment for Crime.

Prescinding from considerations

of express legislative intent, the

Mendoza-Martinez factors together pro-

vide the clearest proof that the un-

derlying purpose and the effect of for-

feitures under 18 U.S.C. § 924(d) is

punishment.

36/ Strictly speaking, this construction

of 18 U.S.C. §924(d) would obviate

the need for this Court to address

the constitutional issue presented

by this case. However, the question

of whether a federal forfeiture

statute which exempts those innocent

of crime is a criminal or a civil

penalty is also raised in another

case now before this Court on peti-

tion for certiorari. Apenteaey:

United States, U.S. No. -

filed, Dec. 7, 1982. In that case,

forfeiture was sought following

conviction, and the claimant was

forced to bear the burden of proof

as to the innocence of his property.

Amicus represents the Petitioner in

that case.

The most salient factor in the

Mendoza-Martinez list with respect to

this case is whether or not the conduct

which justifies the Government in for-

feiting Respondent's firearms is itself

a crime. In this case, Respondent was

charged with, and acquitted of, a crimi-

nal violation of the Gun Control Act.

The forfeiture at issue here is predi-

cated upon that same alleged, and un-

proved crime.

Even considered outside its ap-

plication in this case, Section 924(d)

predica’es forfeiture only upon a find-

ing of criminal culpability. Section

924(d) authorizes forfeiture only when

property is "used or intended to be

used in any violation" of the 1968 Gun

Control Act. The words "used or in-

tended to be used" here allow the

Government to forfeit an entire stock of

firearms, even theugh only a few were

ever illegally sold, if the Government

can show that the owner intended to sell

the rest illegally as well. The penalty

therefore does not reach beyond the

realm of criminal misconduct, but is in-

tended to follow in consequence of crim-

inal behavior even in its incipiency.37/

The cases clarify this con-

struction of the statute by emphasizing

that forfeiture in the absence of an ac-

tual violation, under the "intended use”

portion of the statute, requires a mani-

fest intent to violate the law. See

United States v. One Assortment of Seven

Firearms, 632 F.2d 1276, 1276 (Sth Car.

1980) ("{t]jhe firearms, to be subject to

forfeiture, must be reasonably identi-

fied to the [attempted] violation .

[as] a necessary indicator of intent");

37/ To the extent that anticipated vi-

clation qualifies as a criminal

attempt, forfeiture of property

"intended to be used” in a violation

actually will have been used in a

violation. See Federal Rule of

Criminal Procedure 31(c) (a defen-

dant may be found guilty of a iesser

included offense or an attempt to

commit the offense or a lesser in-

cluded offense).

‘

United States v. 1,922 Assorted Firearms

and 229,553 Rounds of Assorted

Ammunition, 330 F. Supp. 635 (E.D. Mo.

1971) (carelessness, negligence and

inadvertence are insufficient to show

intended use of firearms in a violation

of the Gun Control Act).

Section 924(d) therefore

reaches beyond actual violations only to

punish provable instances of mens

rea.38/ The statute's focus on ‘erimi-

nal culpability and moral guilt as

justification for the forfeiture thus

reveals that ‘forfeiture under § 924(d)

is an additional penalty for crime.

The foregoing analysis suggests

that, in application, Section 924(d)

forfeitures have been construed to re-

38/ This case is thus unlike One oct

Emerald Stones and One _ Ring

United States, 409 U.S. 232, 334

(1972). That case involved a stat-

ute which provided that the

Government was not required to prove

the '‘intent' necessary for criminal

conviction in order to secure a

civil, remedial forfeiture.

quire a ‘bad intent' in the commission

of a crime. But in fact, the statute by

its terms contains an implicit require-

ment of scienter in justification of

forfeiture. The statute provides that

"all provisions of the Internal Revenue

Code of 1954 relating to the seizure,

forfeiture, and disposition of firearms"

apply to "forfeitures under the provi-

sions of this chapter." The Internal

Revenue Code in turn incorporates the

provisions of the customs law with

respect to remission and mitigation of

forfeiture.39/ See McKeehan v. United

States, 438 F.2d 739, 742 n.2 (6th Cir.

1971) (customs law governing remission

and mitigation of forfeitures applicable

39/ Forfeitures of firearms under the

Internal Revenue Code are governed

by 26 U.S.C. § 5872. Subpart (b) of

this statute notes that remission

and mitigation of forfeiture is

available to the owners of seized

property. Subpart (a) of the statute

also makes relevant to forfeitures

under this statute "all the provi-

(Footnote continued)

to forfeitures under 26 U.S.C. § 5872).

The effect of the customs law

remission and mitigation provisions upon

the punitive nature of a statutory for-

feiture was considered by this Court in

United States v. United States Coin and

Currency, 401 U.S. 715 (1971) (cone

struing 26 U.S.C. § 7302). In that

case, the Court specifically observed

_. that restricting the application of the

forfeiture to the guilty -- through the

identical incorporation of customs law

procedures applicable here -=- rendered

the forfeiture a punitive sanction:

(Footnote continued)

sions of internal revenue laws

relating to .. . forfeitures of un-

stamped articles." Sections 7321

through 7328 of Title 26 thus also

are relevant to forfeitures under 18

U.S.C. § 924(d), and § 7327 of that

Title again provides for remission

and mitigation of forfeiture, sta-

ting that the applicable provisions

of the customs law (19 U.S.C. § 1595

et seg.) shall also govern remission

and mitigation of forfeitures under

the Internal Revenue Code.

An express statutory provi-

sion permits the innocent owner to

prove to the Secretary of the

Treasury that the ‘forfeiture was

incurred without willful negli-

gence or without any intention on

the part of the petitioner . :

te Violate the iaw.' ... I se

not to be presumed that the

Secretary will not conscientiously

fulfill this trust, and the courts

have intervened when the innocent

petitioner's protests have gone

unheeded... When the for-

feiture statutes are viewed in

their entirety, it is manifest

that they are intended to impose a

penalty only upon those who are

significantly involved in a crimi-

nal enterprise.

Id. at 721-22 (emphasis supplied).

Given that forfeitures under 18

U.S.C. § $24(d) are subject to remission

and mitigation under the very same stat-

utory provisions found to be so relevant

in Coin and Currency, it is manifest

that they, also, are iritended to punish

only "those who are significantly in-

volved in criminal enterprise."40/ See

McKeehan, supra, at 743-44 (owner devoid

40/ Compare Calero-Toledo vy. Pearso

Yacht Leasin Co., 8.

(1974) (statute authorizing for-

feiture did not restrict the penalty

to the guilty).

of mens rea was unconstitutionally de-

prived of firearms under 18 U.S.C.

§ 924(d) without just compensation) .41/

Thus, to the extent that forfeitures un-

aer Section § 924(d) are not intended to

be visited upon those who are innocent

of involvement in the underlying crime,

the statute encompasses an implicit

requirement of scienter.42/

41/ Accord United States Vv. One

Assortment of Seven Firearms, supra.

United States v. 1,922 Assorted

Firearms, supra. But see, United

States v. 16,179 Moslo Italian .22

Caliber Winler Convertible Starter

Guns, #43 F.2d #63, 466 (2d Cir.

a974), gert. den., 404 U.S. 9863

(1971) (refusing to find a scienter

requirement in the plain words of

§ 924(d), but not considering the

effect of the remission and mitiga-

tion provisions).

42/ This scienter requirement is even

Clearer in 21 U.S.C. § 881(a)(6),

which authorizes forfeitures for the

illegal use of property in accord-

ance with these same customs

statutes, but which also contains an

express exculpatory clause for per-

sons innocent of criminal

involvement. This statute is the

subject of the case Apsnte Vv. vnited

States, 689 F.2d 10 ir. ),

now pending before this Court on a

Petition for Certiorari. No. 82-

5857, filed, Dec. 7, 1982.

Se a ee ee

The conclusion that forfeitures

under § 9$24(d) punish crime is but-

tressed by the fact that such for-

feitures serve the purposes of retribu-

tion and deterrence. That forfeitures

under § 924(d). further these purposes is

evidenced by the legislative materials

discussed above. Moreover, cases like

Boyd v. United States, supra, and United

States v. United States Coin and

Currency, 401 U.S. 71, 718 (1971), il-

lustrate that, as a class, forfeitures

occasioned by criminal misconduct fure-

ther these punitive goals.

In Coin and Currency, this

Court expressly noted that "there is no

difference . between a man who ‘forfeits’

$8,674 because of [illegal use) and a

man who pays a ‘criminal fine' of $8,674

as a result of the same course of

conduct". See also One 1938 Plymonth

Sedan v. Pennsylvania, 380 U.S. 693,

700 (the object of such a forfeiture,

"like a criminal proceeding, is to

’

J ' ‘

s. } ™" ar oe)

penalize for the commission of an of-

fense against the law").

In contrast to punitive for-

feitures like that authorized by

§ 924(ad), remedial, civil sanctions

function as compensatory measures. For

example, in Helvering v. Mitchell, 303

U.S. 391, 401 (1937), the Court held

that a penalty of 50% of a tax defi-

ciency was remedial because it was in-

tended as government compensation and

"as a safeguard for the protection of

the revenue." Similarly, in One Lot’

Stones, supra, 409 U.S. at 236, the for-

feiture involved was not conditioned

upon a crime, and was intended to be a

remedial measure to safeguard the gov-

ernment fisc.43/ Moreover, the Court in

43/ See also, United States v. Ward, 448

U.S 3. 242, 254 (1980) (distinguishing

forfeitures predicated upon crimes

from penalties "analogous to tradi-

tional civil damages"); Rex Trailer

Co., Inc. v. United States, 350 U.S.

148, 153 (1956) (provision for fine

"comparable to the recovery under

(Footnote continued)

One Lot Stones specifically dis-

tinguished remedial statutes from stat-

utes which provide for "forfeiture of a

man's property by reason of offenses

committed by him." Id.

Forfeitures of firearms under

——e

18 U.S.C. § 9$24(d) are not remedial as

reimbursement or compensation to the

government.44/ Furthermore, the struc-

(Footnote continued)

liquidated damages provisions which

fix compensation for anticipat i

loss"); United States ex rel. Marcus

v. Hess, 317 U.S. 537, 549 (1943)

(fine prescribed "will no more than

afford the government complete in-

demnity for the injuries done it");

Stone v. United States, 167 U.S.

178, 188 (1897)(the Government here

"only seeks in its capacity as owner

of property, illegally converted, to

recover its value").

44/ This Court observed in United States

v. Ward, 448 U.S. 242, 254 (1980)

that the forfeiture in Boyd v.

United States, 116 U.S. 616 (1885),

which was occasioned only by reason

of offense against the criminal law

was "a penalty that had absolutely

no correlation to any damages

sustained by society or to the cost

of enforcing the law." Forfeiture

under § 924(d) likewise is predi-

cated solely upon criminal wrongdo-

ing and, unlike the statute at issue

in Ward, it has no remedial

function.

ture of the statute, providing sequen-

tially for imprisonment, fine and for-

feiture, illustrates that the forfeiture

of firearms as a result of their alleged

illegal use is actually a measure di-

rected against the owner to punish him

for the underlying crime and to deter

him from future such conduct.

Forfeiture under § 924 is not

only designed to punish, it also oper-

ates as punishment, because it is an

"affirmative disability or restraint."

The Supreme Court in Mendoza-Martinez

cited three cases for the proposition

that the imposition of an "affirmative

disability or restraint" is characte-

ristic of a criminal penalty. 372 U.S.

at 168. Taken together, these cases

establish that an affirmative disability

or restraint is a detriment which is ef-

fected by positive governmental action

taken in order to deprive the individual

~, =]

= 4

ae Meee ee ee eee eee ee

of property or liberty.45/

With respect to forfeiture un-

der 18 U.S.C. § 924(d), the seizure and

condemnation of a man's property because

the property is involved in the illegal

conduct of its owner undoubtedly consti-

tutes direct and affirmative action

taken by the Government against the

guilty person for the purpose of punish-

ing that person. Such forfeiture is not

merely the denial of a benefit allocated

according to governmental discretion;

rather, it is a physical taking of

45/ Flemming v. Nestor, 363 U.S. 603,

617 (1960) (statutory termination of

social security benefits not puni-

tive and not a deprivation of ace-

crued property rights); United

States v. Lovett, 328 U.S. 303, 315

(1945) (statute denying payment of

earnec salary to three named govern-

ment employees was punishment); Ex

parte Garland, 4 Wall. (71 U.S.)

333, 377 (1867) (oath required of

attorneys seeking to practice before

the federal courts was punishment).

Cf., Helvering v. Mitchell, 303 U.S.

391, 399 (1938) ("One [remedial

sanction] which is characteristi-

cally free of the punitive criminal

element is the revocation of a priv-

ilege voluntarily granted").

property belonging to the claimant.

This is precisely the meaning of "af-

firmative disability."

Moreover, forfeitures histori-

cally have been regarded as purishment.

The law of forfeiture has dual histori-

cal roots, which predicate forfeiture

upon differing theories of guilt, but

which both link the sanction of for-

feiture to the goal of punishment for

wrongdoing.

The historical criminal basis

for forfeiture was the idea that rights

to property accrue to individuals only

through the covenants of society, as em-

bodied in the laws of the _ state.

Violation of those laws effectively

repudiates the social contract which en-

ables the individual to own property,

and so the property may be forfeited. 1

W. Blackstone, Commentaries. 46/

46/ Thus, under English common law, an

in personam forfeiture proceeding

(Footnote continued)

The alternate root for the for-

feiture sanction is the archaic doctrine

of deodands. Under that ancient and

superstitious theory, instruments of

harm were themselves considered wrong-

doers. The idea of retribution suffuses

this fiction, however, because the pur-

pose of the ascription of guilt was to

wreak vengeance upon the thing, as if it

were sentient and could appreciate

punishment. O. Holmes, The Common Law,

Lecture 1 at 10, 34 (1881).47/

(Footnote continued)

could be used to effect forfeiture

of a felon's real and personal

property once the offender was

convicted. See The Palmvra, 12

Wheat. (25 U.S.) 1, 14 (1827).

47/ Although the doctrine of deodands

has been soundly, and rightfully,

denounced on many occasions, it

svill sometimes confuses the issue

of punishment in the context of in

rem forfeitures. Compare the fol-

lowing cases: Boyd, supra, 116 U.S.

at 637 (rejecting the legal fiction

and recognizing that forfeitures of

property for offenses against the

law are really punishments directed

against the owners); Various Items

(Footnote continued)

Finally, there is no remedial

purpose alternatively assignable to for-

feitures under 18 U.S.C. § 924(d). The

Government is incorrect in asserting

that forfeitures of firearms have a non-

punitive purpose, viz., the prevention

of illegal commerce in guns. (Gov't Br.

at 32.)

First, this is not a case where

the forfeiture is preventative because

it removes contraband from circulation.

Simple ownership of registered guns is

not illegal, nor is sale under proper

(Footnote continued)

of Personal Property v. United

States, 282 U.S. 577, 581 (1931)

(resorting to the legal fiction that

property can be "held guilty and

condemned as though it were con-

scious instead of inanimate and

insentient"); United States Vv.

United States Coin and Currency, 401

Ure 715, 720-21 (1971) (noting

Blackstone's observation that the

legal fiction of the animation of

property is "based upon a

‘superstition’ inherited from the

"blind days' of feudalism.");

Calero-Toledo Vv. Pearson Yacht

Leasing Co., 416 U.S. 663, 683

(1974) (construing a statutory for-

feiture as directed against ° the

thing as offender).

y ea

wows oe ST, ee ——. 7

license. Forfeiture under § 924(d) is

directed uniquely against guns that are

sold illegally. This goal of "pre-

vention" thus assumes that Respondent

will sell his firearms illegally in the

future and imputes to Respondent the

moral guilt and knowing intent which is

the basic foundation for all justifica*

tions of punishment. 48/

Consequently, this sort of

"prevention" is not an "alternative"

purpose to punishment, because svch pre-

: vention is no more than "incapacitation"

with respect to future criminal conduct.

Such incapacitation is an acknowledged

rationale for criminal punishment.49/ As

this Court noted in its construction of

the Gun Control Act in Huddleston v.

United States, 415 U.S. 814 (1979),

48/ See H.L.A. Hart, Punishment and

Responsibility (1968), especially

the included essay, Intention and

Punishment, at pp. 113-135.

49/ H. L. Packer, The Limits of Criminal

Sanction (1968) pp. 48-53.

Congress achieved its purpose to deprive

individuals of firearms "whose posses-

sion of them would be contrary to the

public interest” (id. at 825) by the in-

strument of "criminal statutes." Id. at

831.

Second, whatever the character

of this purported purpose, forfeiture

without just compensation, or without

alternatives, such as the option to post

a bond conditioned against illegal

use, 50/ is not consistent with an in-

tent to "regulate" rather than punish.

At the very least, the sanction is exe

cessive if justified on the basis of

"prevention" rather than punishment.

The last of the Mendoza-Martinez factors

thus indicate that there really is no

distinct alternative purpose to punish-

ment assignable to forfeiture under 18

U.S.C. § 924(d), and that, in any event,

S0/ Cf. Murph v. United States, 272

U.S. S30. 632 (1926) (preventative

_goal evidenced by alternative of a

bond).

the penalty is excessive in relation to

the proposed alternative function of

prevention. All of the Mendoza-Martinez

factors thus point to the punitive pur-

pose and effect of forfeiture under 18

U.S.C. § 924(d).

In sum, this Court's method of

statutory construction for characteri-

zing a sanction as punitive or remedial

reveals that a forefeiture of firearms

under the Gun Control Act is punishment

for criminal wrongdoing. Consequently,

the Double Jeopardy Clause forbids the

Government to take a second shot at pun-

ishing Respondent via forfeiture after

he has been acquitted on the underlying

criminal charges.

CONCLUSION

The judgment of the en banc

court of appeals should be affirmed.

Respectfully submitted,

of Fttongon Va

On the Brief: JOHN L. POTTENGER, JR.

DEBORAH M. REYHER

Simpson Thacher

& Bartlett

One Battery Park

Plaza

New York, N.Y.

10004

(Counsel of Record)

STEVEN WIZNER

MARY A. McCARTHY

SALLY ZANGER

Yale Law School

Box 401A Yale Station

New Haven, CT 07520-7397

(203) 436-2210

Counsel for the

Jerome N. Frank

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