Opposition Brief — One 1984 Lincoln Mark VII Two-Door v. United States

No. 87-1092

In the Supreme Court of

OCTOBER TERM, 1987

ONE 1984 LINCOLN MARK VII Two-Dookr, ET AL.,

PETITIONERS

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

SARA CRISCITELLI

Altorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

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QUESTION PRESENTED

Whether the Ex Post Facto Clause or the general rule

against retroactive application of newly enacted statutes

bars the civil forfeiture of property that was acquired

through illegal narcotics activity prior to the enactment of

21 U.S.C. 881(a)(6).

(I)

TABLE OF CONTENTS

Page

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ee eds ake pak s chs aah oe be eee Ke sees 6

STEROL RT Tec, NR aus ar y

TABLE OF AUTHORITIES

Cases:

Barrett v. United States, 423 U.S. 212 (1976) ........... 9

Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) .............. 6

Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S.

SSRIS RS GL SSS 7

Helvering v. Mitchell, 303 U.S. 391 (1938) ............. 6

Marcello v. Bonds, 349 U.S. 302 (1955) ................ 6

United States v . $5,644,540 in United States Currency, 799

es cic e sn basseencesaces 7

United States v. Kairys, 782 F.2d 1374 (7th Cir.), cert.

NE, BERNUID oc owen ccewsasaveces 6

United States v. One Assortment of 89 Firearms, 465 U.S.

ae a nugwededuepucesceacs 5, 6

United States v. $364,960.00 in United States Currency,

Se | er ae 7

United States v. $2,500 in United States Currency, 689

F.2d 10 (2d Cir. 1982), cert. denied, 465 U.S. 1099

St sel a dlnda ee deeb ska b0 anes ee 7

United States v. Vanella, 619 F.2d 384 (Sth Cir. 1980) .... 8

United States v. Ward, 448 U.S. 242 (1980) ............ 6, 8

Weaver v..Graham, 450 U.S. 24 (1981) ................ 6, 7

Constitution and statutes:

U.S. Const.:

Art. I, § 9, Cl. 3 (Ex Post Facto Clause) ........... 4, 6,7

ee Nena cbs bess ecede saan see 8

pe ce ph cccesctcesecubenense 8

Se er ree 5,8

IV

Statutes — Continued: Page

poghk Pim 5 | rrerererrr errr ry rer 9

Be Se I alc d voakWaecsnecknes 1-2, 4, 5, 6, 7, 8, 9

USE: TIO 5 oi oa occ eek en, 5

21 U.S.C. (Supp. IV) 881(i) .... 2... ee eee eee eee 5

Miscellaneous:

U.S. Dep’t of Justice, Drug Agents’ Guide to Forfeiture

Oy EE vk ck eid bawecseecac nes ce eaen Acs 9

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1987

No. 87-1092

ONE 1984 LINCOLN MARK VII Two-Dookr, ET AL.,

PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App.

78a-108a) is reported at 829 F.2d 532. The opinion of the

district court (Pet. App. la-77a) is reported at 630 F.

-| Supp. 1540.

JURISDICTION

The judgment of the court of appeals was entered on

September 29, 1987. The petition for a writ of certiorari

was filed on December 28, 1987. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

‘ On March 13, 1984, the United States filed a complaint

in the United States District Court for the Eastern District

of Texas seeking forfeiture, pursuant to 21 U.S.C.

(1)

2

881(a)(6), of D.K.G. Appaloosas, Inc., a Texas corpora-

tion, and all of its assets as the proceeds of illegal narcotics

activity. Over the next few months, the United States filed

similar complaints under 21 U.S.C. 881(a)(6) with respect

to certain real and personal property, horses, and money.

The complaints were consolidated, and claimants Bruce

Emery Griffin, Donna Kraus Griffin, NABUC, Ltd., and

D.K.G. Appaloosas, Inc., filed claims against the seized

property. After two jury trials on questions relating to the

forfeiture, the district court ordered that certain cars, gold

bars, and jewelry be forfeited to the United States (Pet.

App. la-77a). The court of appeals affirmed (id. at

78a-108a).

1. Bruce Emery Griffin was a major importer of mari-

juana and cocaine into this country during the 1970s. He

earned approximately $85-$100 million in connection with

his drug activities. In 1982, a federal grand jury in the

Southern District of Florida indicted him and charged him

with conducting a continuing criminal enterprise over the

preceding six years, as well as other offenses. The charges

were resolved by a guilty plea. Under the plea agreement,

Griffin agreed to testify against his co-defendants and to

cooperate with the government’s investigation of illegal

drug activities; in return, the government agreed, among

other things, not to seek further civil or criminal sanctions

against Griffin for conduct known to the government at

the time he entered into the plea agreement in September

1983. Pet. App. 3a-5a, 80a-81la.

In March 1984, the government filed a civil forfeiture

complaint, pursuant to 21 U.S.C. 881(a)(6), in the United

States District Court for Eastern District of Texas, seeking

forfeiture of certain real and personal property, including

a herd of horses and money in two bank accounts, on the

ground that the property constituted the proceeds of illicit

drug activities (Pet. App. 81a). Griffin and others

3

filed claims against the seized property; they eventually

conceded that there was probable cause to believe that the

seized property was acquired with illegal drug proceeds,

but they asserted that Griffin’s plea agreement barred the

forfeiture in the Eastern District of Texas in its entirety

(id. at 82a-83a). At the same time, Griffin moved in the

Southern District of Florida for specific performance of

his plea agreement (id. at 82a). The forfeiture proceedings

in the Eastern District of Texas were held in abeyance

pending a decision from the court in the Southern District

of Florida (id. at 83a). On August 16, 1985, the court in

the Southern District of Florida provisionally granted

Griffin’s motion for specific performance, finding that the

plea agreement barred forfeiture of the D.K.G. Ranch and

certain other items of seized property because it con-

stituted a sanction against Griffin for conduct known to

the government at the time the plea agreement was signed

(id. at 83a-84a).

2. In accordance with the provisional ruling, the court

in the Eastern District of Texas ordered that any property

owned by Griffin at the time the agreement was entered

into be protected from civil forfeiture (Pet. App. 84a). It

then held two jury trials. The first trial addressed the ques-

tion whether Griffin was the true owner of certain of the

forfeitable property, including the ranch and the

buildings, motor vehicles, and horses located on the

ranch. The second trial addressed the question whether the

government knew at the time of the plea agreement that

Griffin owned other items of forfeitable property, in-

cluding the cars, gold, and jewelry (id. at 84a-85a). The

first jury found that Griffin owned the property; accord-

ingly, the district court ordered that the property be

returned to the claimants, on the theory that the plea

agreement barred the forfeiture. The second jury found

that the government did not know about the other items of

forfeitable property when it entered into the plea agree-

4

ment; accordingly, the court held that the agreement did

not bar the forfeiture of those items and ordered them

forfeited (ibid.).

3. The court of appeals affirmed (Pet. App. 78a-108a).

Among other things, it rejected Griffin’s argument that 21

U.S.C. 881(a)(6) could not authorize the forfeiture of nar-

cotics proceeds received before 1978, when that subsection

of the forfeiture statute first became effective (Pet. App.

94a-105a). Because Griffin had not argued in the district

court that the general rule against retroactive application

of statutes made 21 U.S.C. 881(a)(6) inapplicable to this

case, the court of appeals declined to address the argument

on appeal (Pet. App. 94a-95a n.6). In addition, the court

concluded that 21 U.S.C. 881(a)(6) is not subject to the Ex

Post Facto Clause (Pet. App. 95a-105a).

With respect to the latter point, the court noted (Pet.

App. 95a) that “the ex post facto clause applies only to

criminal cases.” The court added that, of course, “the ex

post facto effect of a law cannot be evaded by simply giv-

ing a civil form to that which is essentially criminal”

(ibid.), and that “forfeiture statutes like section 881 have

been considered criminal for certain purposes” (ibid. (cita-

tions Omitted)). But it further noted that, “for other pur-

poses, the civil nature of forfeiture proceedings has been

held to bar the application of important constitutional

protections” (id. at 95a-96a) and that, “[bJecause deter-

mining when a forfeiture proceeding is civil or ‘essentially

criminal’ is not always readily apparent, the Supreme

Court has developed a specific analysis for making the

distinction” (id. at 96a (footnote omitted)). Specifically,

the court of appeals stated that, under this Court’s deci-

' sions, a sanction must be intended as “punishment” in order

for it to be treated as “essentially criminal” (id. at 97a-98a)

and that the label given to a sanction is dispositive unless,

where a civil label has been given, “ ‘the statutory scheme

5

[is] SO punitive either in purpose or effect as to negate that

intention’” (id. at 98a, quoting United States v. One

Assortment of 89 Firearms, 465 U.S. 354, 362-363 (1984)).

As to the first prong of this analysis, the court of ap-

peals concluded that “Congress designed [21 U.S.C.

881(a)(6)} to be a remedial civil sanction” (Pet. App.

101a). The court noted that “the language Congress chose

for section 881 evidences its intent to provide for a civil

forfeiture proceeding” (ibid., citing 21 U.S.C. (& Supp.

IV) 881(b)(4), 881(i)). The court further noted that “Con-

gress incorporated by reference the procedures of for-

feiture under an already existing body of civil forfeiture

law —in this case, customs law,” and that, “ ‘[b]y creating

such distinctly civil procedures for forfeitures * * * Con-

gress has “indicate[d] clearly that it intended a civil, not a

criminal, sanction”’” (Pet. App. 10la (quoting United

States v. One Assortment of 89 Firearms, 465 U.S. at

363)). Finally, the court noted that a separate statutory

provision, 21 U.S.C. (Supp. IV) 853, contains an express

criminal forfeiture sanction. The court observed that “the

fact that the statute under consideration ‘contains two

separate and distinct provisions imposing sanctions and

that these appear in different parts of the statute[] helps to

make clear the character of that here invoked.’ ” In addi-

tion, the court concluded that “the legislative history of

section 853 clears up any remaining doubt that section 881

was intended to provide a civil sanction” (Pet. App. 102a

(citation omitted)).

The court then found that “the purpose or effect of the

forfeiture [provision] is [not] so punitive that it requires us

to override Congress’ preference for a civil sanction”

(Pet. App. 103a). It stated that the “legislative history to

section 853 makes it clear * * * that the forfeiture provi-

sions of Title 21 have a strong, remedial aim,” to wit, to

6

attack the economic aspects of illegal drug trafficking (id.

at 104a). And the court added that “refusing to apply the

[ex post facto| clause would not directly protect in-

dividuals, as opposed to property, from punishment” (id.

at 105a).

ARGUMENT

1. Petitioners argue (Pet. 6-8) that the Ex Post Facto

Clause of the Constitution bars the application of 21

U.S.C. 881(a)(6) in this forfeiture action. As noted by the

court below (Pet. App. 95a), however, the ex post facto

prohibition relates only to penal legislation imposing or in-

creasing a criminal punishment. See Weaver v. Graham,

450 U.S. 24, 28-29 (1981); Calder v. Bull, 3 U.S. (3 Dall.)

386, 390 (1798). Thus, where a statute has a non-punitive,

remedial goal, ex post facto considerations do not apply.

See, e.g., Marcello v. Bonds, 349 U.S. 302, 314 (1955)

(deportation proceedings that are instituted as a result of

the deportee’s commission of an offense are not deemed

punitive for purposes of the Ex Post Facto Clause); United

States v. Kairys, 782 F.2d 1374, 1382-1383 (7th Cir.), cert.

denied, 476 U.S. 1153 (1986) (denaturalization pro-

ceedings do not inflict punishment, even though removal

of citizenship works a “penalty” for misconduct upon en-

try). Moreover, as the court below also recognized (Pet.

App. 97a), a sanction is not deemed punitive unless Con-

gress has expressly or implicitly so labeled it, or unless the

statutory scheme is so punitive in either its purpose or ef-

fect as to negate the intention otherwise inferable from the

statutory label. See United States v. One Assortment of 89

Firearms, 465 U.S. 354, 362-363 (1984); United States v.

Ward, 448 U.S. 242, 248-249 (1980); Helvering v. Mit-

chell, 303 U.S. 391, 398-399 (1938). The civil forfeiture

provisions of 21 U.S.C. 881(a)(6) do not satisfy either of

those conditions. |

;

Civil forfeiture has historically been regarded as a

remedial and not a penal sanction. See Calero-Toledo v.

Pearson Yacht Leasing Co., 416 U.S. 663, 686-687 (1974);

United States v. $364,960.00 in United States Currency,

661 F.2d 319, 323 (Sth Cir. 1981); United States v.

$5,644,540.00 in United States Currency, 799 F.2d 1357,

1364 n.8 (9th Cir. 1986). While the civil forfeiture provi-

sions Of 21 U.S.C. 881(a)(6) are akin to criminal pro-

ceedings, they have a substantial, non-punitive, remedial

goal—i.e., the raising of revenue and the destruction of |

the financial basis of drug trafficking organizations. As

the Second Circuit has explained (United States v. $2,500

in United States Currency, 689 F.2d 10, 13-14 (1982), cert.

denied, 465 U.S. 1099 (1984)), the statute is designed to

promote the broad remedial purpose of “impeding the suc-

cess Of the criminal enterprise by eliminating its resources

and instrumentalities, diminishing the efficiency and prof-

itability of the business by increasing the costs and risks

associated with it, and helping to finance the government’s

efforts to combat drug trafficking.” Moreover, civil

forfeiture proceedings are not so punitive as to render

these remedial purposes insufficient; as the Second Circuit

has also noted (689 F.2d at 14), a prior judgment of civil

forfeiture carries none of the stigma otherwise associated

with “convictions” —job applicants, for example, “rarely,

if ever,” are asked to disclose prior judgments of forfeiture

against them.

Petitioners attempt (Pet. 8) to draw support from two

recent decisions of this Court, but that effort is unavail-

ing. Neither of the cases on which they rely holds or even

implies that the ex post facto prohibition applies in civil

forfeiture proceedings. In Weaver v. Graham, supra, the

Court held that the Ex Post Facto Clause barred the retro-

active application of a statute that altered a convicted

defendant’s parole expectations; there is, however, an ob-

vious distinction between amending a criminal penalty

8

after a criminal conviction and providing new civil

remedies and revenue-raising provisions after a criminal

act has occurred. In United States v. Ward, supra, the

Court declined to require the government to provide con-

stitutional protections ordinarily associated with criminal

proceedings, including the Fifth Amendment protection

against compulsory self-incrimination, in connection with

a civil penalty; therefore, if anything, Ward makes clear

that offending conduct may be subject to both criminal

and civil sanctions and that the protections available in

criminal cases do not necessarily apply in parallel civil

cases.

2. Petitioners similarly err in suggesting (Pet. 8-9) that

“rules of statutory construction prevent retroactive ap-

plication of [Section] 881.” To begin with, the court of

appeals refused to address that question because peti-

tioners did not raise it prior to trial in the district court; the

issue is therefore not properly presented to this Court. In

any event, the presumption that legislation is prospective

only does not apply where a new statute is either pro-

cedural or remedial (see United States v. Vanella, 619 F.2d

384, 385-386 (Sth Cir. 1980)), which 21 U.S.C. 881(a)(6)

clearly is. Prior to the enactment of 21 U.S.C. 881(a)(6),

Congress had provided for the criminal forfeiture of il-

legal proceeds earned by certain drug offenders. See 217

U.S.C. (1970 ed.) 848, recodified at 21 U.S.C. (Supp. IV)

853. The civil forfeiture provisions in 21 U.S.C. 881(a)(6)

merely altered the procedures to which the government

may resort in seeking forfeiture of such proceeds; the new

statute did not suddenly and retroactively declare contra-

band the property that a person was previously lega'ly en-

titled to hold. Accordingly, in light of the pre-existing

criminal forfeiture provision, it is clear that 21 U.S.C.

881(a)(6) does not impair any legitimate expectations and

9

may be applied retroactively to the proceeds of illicit drug

activity engaged in prior to the statute’s enactment.

3. Finally, petitioners err in suggesting (Pet. 9-10) that

the Department of Justice has “conceded” that 21 U.S.C.

881(a)(6) may not be applied retroactively. The Depart-

ment of Justice’s Drug Agents’ Guide to Forfeiture of

Assets (1981) merely speculates that courts may not be

willing to apply 21 U.S.C. 881(a)(6) retroactively and ad-

vises government officials to take a conservative approach

in prosecuting forfeiture cases. The Guide is not, and was

not intended to be, a “concession” on the question of the

retroactivity of 21 U.S.C. (& Supp. IV) 881.*

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

SARA CRISCITELLI

Attorney

MARCH 1988

* In any event, the Guide does not purport to set forth an official

government position, and it is not legally binding on the Department

of Justice. And even if the Guide reflected a deliberately chosen inter-

pretation, that would not estop the government from asserting a dif-

ferent position in this case. See Barrett v. United States, 423 U.S. 212,

222 n.6 (1976).

U.S. GOVERNMENT PRINTING OFFICE: 1988— 202-037/60328