# Amicus Brief — United States v. One Assortment of 89 Firearms > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0148%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Brief - **Published:** January 1, 1984 - **Citation:** 465 U.S. 354 ## Text Off "0. Suine, | [ wR preme Court, u.s, |} fw *X®tlLeEp 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 : 2 \ 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- Le 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 15 passim 6, 14 49, 58 24 passim 3 20 55 42 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 59 passim 20 22, 29 42 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 33 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=- 29 32, 52 4 31 passim 57 t 46, 50 50 18, 39 22, 28 42 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 J “— “ 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). 5 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. i 102. «2U~LS. ; , 26 Fed, Cas. ircuit Court, E.D. Mo. 1877) : ue cases cited at 27 saad 11 ? 41. 10 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. 11 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/ i a es See a ie 12 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 13 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. 14 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 15 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. 16 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 17 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 18 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. 19 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 20 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. 22 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, 23 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"). 24 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) er 25 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