Petition for Writ of Certiorari — Sykes v. United States

Supreme Court, U.S.

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Ur rigeé Vi i’

In The

Supreme Court of the United States

October Term, 1995

LAMOND SYKES,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

Petition For Writ Of Certiorari To The

United States Court of Appeals

for the Eighth Circuit

PETITION FOR WRIT OF CERTIORARI

aici ME, etiam

Paul J. D'Agrosa

Attorney for Petitioner

8019 Forsyth

St. Louis, Mo. 63105

(314) 725-8019

QUESTIONS PRESE® TED

I. Does ‘re Fifth Amendment of the t'nited States Consti-

tution, privilege against self-incrimination, apply in civil

forfeiture proceedings?

II. Does jeopardy attach to a civil forfeiture proceeding,

when defendant does not file a claim of interest in the

property subject to forfeiture but where a final disposi-

tion order or declaration of forfeiture is entered?

II. Should jeopardy attach in a pending forfeiture pro-

ceeding and bar any subsequent criminal prosecution fo1

the same offense, when defendant places himself at risk

of determination of guilt by contesting the forfeiture of

his property but no final disposition order has been en-

tered?

ii

TABLE OF CONTENTS |

QUESTIONS PRESENTED ...............00008. i

TABLE OF CONTENTS 50662 ee i

TABLE OF AUTHIORITION Fos ete ee iii

OPINIONS BELOW. «ois. SY eee

JURISINCTION | 45655 anea eee 2

CONSTITUTIONAL AND STATUTORY PROVISIONS 2

STATEMEN! OF THE CASE 6 isi sere eee 3

REASONS FOR GRANTING THE WRIT.......... 6

CONCGCLAUSIRIING ss 4 eee eee ee aay een es meee 13

TABLE OF AUTHORITIES

CASES CITED Page

Arizona v. Washington, 434 U.S. 497 (1978)...........cccceseee 53, 32

Austin v. United States, 590 U.S. ___, 125 L.Ed.2d 488,

a as oo deen desvnanbueesvoverenunduaynil 7,8

Boyd v. United States, 116 U.S. 619 (1886)... eects 6

Downum v. United States, 372 U.S. 734 (1963)...............ccccceeeeee 12

Gainer v. United States, 904 F. Supp. 1234

ee so evdednrbguvéceweennenaereevnes Yy

Garrity v. New Jersey, 385 U.S. 493 (1967)..............00 we i eet 2! 6

Marchetti v. United States, 390 U.S. 39 (1968).................. cece eee. 6

Montana Department of Revenue v. Kurth Ranch,

517 U.S. __, 128 L.Ed.2d 767, 114S.Ct. 1937 (1994)........... 7

Serfass v. United States, 420 U.S. 377 (1975)............cccccecseeceeees 11

United States v. Aquilar, 886 F.Supp 740 (ED Wash. 1994)......9

United States v. Brophil, 899 F. Supp 1257 (D. Vt. 1995)......... 9

United States v. $405,089.23 U.S. Currency, 33 F.3d 1210

IN id inc cdscaen a Nb ideuhatibaeedunsatiissuabieboreesienss 8, 12

United States v. Real Property Located at Incline Village,

ar I i cose cemlevtmoneweveoes 9

United States v. Sanchez-Cobarruvais, 65 F.3d 781

I a cdbiataounitonwemnineners 10

United States v. Torres, 28 F.3d 1463 (7th Cir. 1994)........0000.... 11

United States v. U.S. Coin & Currency, 401 U.S. 715 (1971)....7

United States v. Ursery, 59 F.3d 568 (6th Cir. 1995)........... 9,11

United States v. Ward, 484 U.S. 242 (1980)..........0.. eee eee ee 6

United States v. Whitby, 896 F. Supp 898 (Wd Wisc. 1995)......9

No.

e

In The

Supreme Court of the United States

October Term, 1995

+

LAMOND SYKES,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

@

Petition For Writ Of Certiorari To The

United States Court of Appeals

for the Eighth Circuit

’

PETITION FOR WRIT OF CERTIORARI

*

Petitioner, Lamond Sykes, respectfully requests that a

Writ of Certiorari be issued to review the order of the

United States Court of Appeals for the Eighth Circuit

entered on January 9, 1996 and the subsequent deniel of

the Petition for Re-Hearing on February 7, 1996.

.

OPINIONS BELOW

The United States District Court Eastern District of |

Missouri denied Petitioner's Motion to Dismiss the Indict-

ment on Double Jeopardy Grounds, which he asserted

violated his constitutional right to be free from multiple

punishment for the same offenses under the Fifth Amend-

ment for the United States Constitution. (App. 5A). On

January 9, 1996, the United States Court of Appeals for the

]

Eighth Circuit affirmed that decision and held that jeop-

ardy did not attach to the completed forfeitures because

Petitioner did not contest the forfeitures; nor had he

been subjected to prior jeopardy in the pending forfei-

ture proceedings. (App. 1A). The United States Court of

Appeals for the Eighth Circuit denied Petitioner's peti-

tion for re-hearing on February 7, 1996, (App. 8A).

Judgment of the United States Court of Appeals

for the Eighth Circuit was entered on January 9, 1996,

and petition for re-hearing was denied on February 7,

1996. This court's jurisdiction to consider this petition

from the judgment entered by the United States Court of

Appeals, Eighth Circuit, is invoked pursuant to 28 1) eG.

§ 1254(1), and is timely filed under Supreme Court Rule

13.4.

ry ies

CONSTITUTIONAL AND STATUTORY PROVISIONS

ae 6 es =

a) Fifth Amendment, United States Constitution:

...[N] or shall any person be subject for the same

offense to be twice put in jeopardy of life or limb; nor

shall he be compelled in any criminal case to be a witness

against himself. . .

b) 18 U.S.C. § 981;

c) 19 U.S.C. § 1608 and § 1609;

d) 21 U.S.C. § 881 (a) (6)

STATEMENT OF THE CASE

Beginning on or about May 22, 1994 and continuing

through July 5, 1994, the government seized over $100,000

in U.S. currency, several automobiles and fourteen pieces

of industrial dry cleaning equipment, which were owned

or in the possession of Petitioner, Lamond Sykes, at the

time of seizure and eventual forfeiture.

Pursuant to 19 U.S.C. § 1608, Petitioner received

notice of forfeiture, which informed him that in order to

receive a judicial determination under federal law he

must file a claim and post a bond. The government

seized and forfeited Petitioner's assets as follows:

1. A 1994 Jeep Cherokee valued at $32,257, seized

pursuant to 21 U.S.C. § 881 (a) (6);

2. $30,000 in U.S. Currency seized pursuant to 21

U.S.C. § 881 (a) (6) as assets used in, or intended to be

used in, any manner or part, to commit, or facilitate the

commission of, a violation of the Controlled Substance

Act, Title 21 of the United States Code;

3. $49,031 in U.S. Currency seized and forfeited

pursuant to 21 U.S.C. § 881 (a) (6) as assets used in, or

intended to be used in, any manner or part, to commit, or

facilitate the commission of, a violation of the Controlled

Substance Act, Title 21 of the United States Code;

4. Fourteen pieces of industrial dry cleaning equip-

ment, seized from Petitioner's place of business, and

forfeited pursuant to 18 U.S.C. § 981 for violating 31

U.S.C. § 5313 (a) and § 5324, offenses the Petitioner is

charged with violating in the pending criminal prosecu-

tion;

4

5. $19,222.96 in U.S. Currency seized from

Petitioner's bank accounts and forfeited pursuant to 18

U.S.C. § 981 for violating 18 U.S.C. § 1956, an offense the

Petitioner is charged with violating in the pending crimi-

nal prosecution.

When Petitioner received notice of forfeiture, the

Government was preparing to prosecute him for viola-

tions of the Controlled Substance Act, money laundering

and making a false statement to an FDIC institution.

Petitioner contested only the seizure in Lafayette County,

Missouri. In both instances, Petitioner claimed owner-

ship at the time of seizure and denied that these assets

were derived from illegal activity. The claim regarding

the Jeep Cherokee is pending; the claim regarding the

$30,000 has been indefinitely stayed.

The remaining assets - dry cleaning equipment,

$19,222.96 in cash and $49,031 in cash -were forfeited

pursuant to civil forfeiture proceedings wherein Petitioner

filed no claim of interest, nor any answer.

Six months after the seizures and forfeitures, Peti-

tioner was indicted on the same charges the Government

used to justify seizure and forfeiture of his assets: (1)

conspiracy to distribute heroin and/or cocaine and en-

gaging in a continuing criminal enterprise, both in viola-

tion of the Controlled Substance Act, Title 21 of the

United States Code; (2) money laundering in violation of

18 U.S.C. § 1956; and (3) making a false statement to an

FDIC institution in violation of 31 U.S.C. § 5313 (a) and

§ 5324.

The civil forfeiture proceedings and pending crimi-

nal prosecution were brought in separate proceedings at

different times before different district court judges and

have resulted or will result in separate judgments. In

5

Petitioner's motion to dismiss he argued, that continued

prosecution for the same offenses in a separate proceed-

ing was inultiple punishment in direct violation of his

Fifth Amendment right to be free from double jeopardy,

which was denied by the District Court on October 12,

1995.

On appeal, Petitioner asserted that the District Court

order, holding that jeopardy had not attached in either

forfeiture proceeding was clearly erroneous because the

forfeiture statute forced him to choose between two con-

stitutional rights, and the status of the pending forfeiture

proceedings were outside of his control. As such, he

should not be penalized because no final order has been

issued.

The Eighth Circuit ruled that the Double Jeopardy

Clause, barring multiple punishment, was not triggered

because Petitioner was not a party to the completed pro-

ceedings, nor was he subjected to prior jeopardy by the

pending forfeitures of the Jeep and $30,000. Thus, Peti-

tioner failed to demonstrate the prerequisite of prior

jeopardy, and the judgment of the District Court was

affirmed. (App. 1A).

6

REASONS FOR GRANTING THE WRIT

Petitioner respectfully asserts that the United States

Court of Appeals for the Eighth Circuit has decided fed-

eral questions in a way that conflicts with applicable deci-

sions of this Court, and other federal circuits.

The United States Court of Appeals for the Eighth

Circuit completely overlooked Petitioner's right to assert

his Fifth Amendment privilege against self-incrimination

in the forfeiture proceedings. As such, its opinion ap-

pears inconsistent with this Court's prior decisions.

This Court held that a civil proceeding to forfeit a

person's property or assets for an offense against federal

law - whether in-rem or in-personam - is considered a

criminal matter where the Fifth Amendment privilege

against self-incrimination may be asserted. Boyd v. United

States, 116 U.S. 619 (1886); United States v. Ward, 448

U.S. 242 (1980). This Court has also held that a defen-

dant should not have to choose between waiving his privi-

lege against self-incrimination, by filing a claim of inter-

est, and remaining silent, thereby giving up any opportu-

nity to prove his interest in the property subject to forfei-

ture. A statute, requiring an owner of property or a party

in interest, to elect between producing a document or

forfeiting the asset at issue, is a form of compulsion and

in direct violation of the Fifth Amendment privilege against

self-incrimination. Garrity v. New Jersey, 385 U.S. 493

(1967).

Moreover, where a statute is a means of self-report-

ing, it is a form of compulsion raising serious constitu-

tional obstacles and questions about self-incrimination.

The standard for applying the self-incrimination privilege

is whether the person claiming the privilege is confronted

by substantial and real hazards of incrimination. Marchetti

7

v. United States, 390 U.S. 39 (1968); Montana Depart-

ment of Revenue v. Kurth Ranch, 517 U.S. ____, 128

L.Ed.2d 767, 114 S.Ct. 1937 (1994).

When the Eighth Circuit denied Petitioner's motion

to dismiss the indictment, it failed to consider the com-

pulsory nature of 19 U.S.C. § 1608 and § 1609, as well as

the on-going DEA investigation of Petitioner at the time

he received notice of forfeiture. (App. 1A). These stat-

utes require Petitioner to file a claim of interest in prop-

erty allegedly tied to illegal activity, or forfeit the prop-

erty pursuant to statute. Therefore, the statutes compel

Petitioner to choose between two constitutional rights -

privilege against self-incrimination and freedom from

double jeopardy. The Eighth Circuits’ silence condones

depriving Petitioner of his Fifth Amendment rights and

conflicts with this Court's decisions in Garrity, Marchetti

and Kurth Ranch.

In United States v. U.S. Coin and Currency, 401

U.S. 715 (1971) this Court reasoned that, when it is the

intent of the forfeiture to impose a penalty upon those

significantly involved in a criminal enterprise, it follows

from a constitutional standpoint that the Fifth Amend-

ment privilege may properly be invoked. This Court

further provided that where money liability is predicated

upon a finding of wrongful conduct by the parties, the

self-incrimination privilege applies with equal force in

both civil and criminal proceedings. Id. at 718.

Furthermore, in Austin v. United States, 509 U.S. P

, 125 L.Ed. 2d 488, 113 S.Ct. (1993) this

Court recognized that the Fifth Amendment self-incrimi-

nation clause can be applied to civil forfeiture proceed-

ings where the forfeiture statute makes the culpability of

the owner relevant or where the owner faced the possibil-

ity of subsequent criminal proceedings. In both Kurth

8

Ranch and Austin, this Court analyzed the double jeop-

ardy issue and its attachment to claimants by focusing on

the nature of the sanction and not the process utilized.

Petitioner's assets 2 1d property were seized and for-

feited pursuant to 21 U.S.C. § 881 (a) (6) and 18 U.S.C. §

981, statutes intended by Congress to serve retributive

and/or deterrent purposes. These statutes are punitive

in nature, focusing on the wrong-doer whose errant be-

havior gave rise to the seizure and forfeiture in the first

place. The punitive nature of these statutes is evident by

the presence of an "innocent owner defense", which serves

notice that these non-remedial forfeiture statutes focus

exclusively on the culpability of the property owner, not

that of the property, and as such are criminal in nature.

See, Austin, supra; United States v. $405, 089.22 U.S.

Currency, 33 F.3d 1210 (9th Cir. 1994).

By ignoring this Court's decisions in Austin, Kurth

Ranch and U.S. Coin & Currency, the Eighth Circuit has

placed procedural form over substantive constitutional

rights. Its failure to consider the congressional intent

and focus of these forfeiture statutes limited its analysis

to the proceedings, and not to the conduct of the Peti-

tioner which justified the forfeiture of his property pursu-

ant to federal statute. Therefore, the Eighth Circuit

ruling adversely conflicts with applicable decisions of this

Court.

9

Il.

There exists coni‘:ct and confusion among the fed-

eral circuits and district courts on whether jeopardy at-

taches upon the filing of a declaration of forfeiture in an

uncontested forfeiture proceeding. This fact was recog-

nized by the Eighth Circuit in its opinion denying

Petitioner's motion to dismiss on double jeopardy

grounds. (App. 3A).

Numerous federal circuits and district courts have

held that the attachment of jeopardy is not contingent on

whether the property owner asserted a claim of interest

but on whether a final disposition order has been en-

tered. See, United States v. Ursery, 59 F.3d 568 (6th Cir.

1995) which held that a criminal defendant, who was

placed at a risk of a determination of guilt, innocence or

of a forfeiture judgment, has been placed in jeopardy,

thus triggering double jeopardy protection against subse-

quent prosecutions. See also, United States v. Real Prop-

erty Located at Incline Village, 47 F.3d 1511 (9th Cir.

1995) (although defendant did not file a challenge to the

civil forfeiture, jeopardy attaches when the government

files a declaration of forfeiture or a final disposition of

forfeiture); Gainer v. United States, 904 F.Supp. 1234

(Dist. of Kansas 1995) (the character of the act of forfei-

ture is without question, punishment, whether or not

defendant appears as part of the proceeding); United

States v. Brophil, 899 F.Supp 1257 (D.Vt. 1995) (failure

to appear at a civil forfeiture proceeding does not pre-

clude an individual from raising a double jeopardy claim

in a subsequent criminal prosecution); United States v.

Whitby, 896 F. Supp 898 (WD Wisc. 1995) (jeopardy

attached in a forfeiture proceeding when a default judge-

ment was entered against detendant's property); United

10

States v. Aquilar, 886 F. Supp 740 (ED Wash 1994) (it is

irrelevant whether defendant failed to contest the forfei-

ture, where the civil forfeiture action was based precisely

on the same conduct addressed in the indictment.)

In United States vy. Sanchez-Cobarruvais, 65 F. 3d

781 (9th Cir. 1995), the Court held that filing a declara-

tion of forfeiture or final disposition order renders a

decision final and bars any subsequent criminal prosecu-

tion for the same offense. It further recognized that an

administrative declaration of forfeiture under 19 U.S.C. §

1609, has the same force and effect as a final decree and

order of forfeiture in a judicial forfeiture proceeding in

federal district court.

The attachment of jeopardy in an uncontested for-

feiture proceeding has not been clearly and concisely

adjudicated. The Sixth, Eighth and Ninth Circuits have

all supplied a differing opinion and analysis as to when

jeopardy is deemed to attach in a civil forfeiture proceed-

ing. As such, this constitutional issue lacks clarity in its

application, and needs to be resolved in conjunction with

a property owner or interest holder's right under the

Fifth Amendment to be free from self-incrimination.

1]

III.

The Eighth Circuit held that the pending forfeiture

proceeding, stayed at the request of the government ‘

pending the outcome of Petitioner's criminal prosecu-

tion, has not subjected Petitioner to prior jeopardy un-

der Serfass v. United States, 420 U.S. 377 (1975).

This Court has held that it is grossly unfair to sub-

ject a person to multiple punishment or prosecution,

because to do so subjects the individual to increased

financial and emotional burdens, prolongs the period a

defendant is stigmatized, and enhances the risk that an

innocent person may be convicted. Arizona v. Washing-

ton, 434 U.S. 497 (1978). The Eighth Circuit's reliance

on Serfass is misleading, as this Court's decision therein

involved analysis of double jeopardy as it pertains to

multiple prosecution, not multiple punishment. Because

the Eighth Circuit chose to follow Serfass as authority, it

has misapplied Serfass to the facts of this case in holding

that the government can stay or stop a forfeiture pro-

ceeding where Petitioner has filed a claim, and still con-

clude that jeopardy had not attached. Application of

Serfass in this manner gives the government unbridled

power to choose whether or not jeopardy attaches by

manipulating the judicial process. It was not the intent

of this court that Serfass stand for the proposition that

multiple judicial proceedings are a pre-condition to all

double jeopardy claims. By following Serfass and its

progeny to their logical conclusion, all the Petitioner

need do is file a claim of ownership and jeopardy is said j

to attach.

Moreover, where Petitioner is at risk of a determina-

tion of guilt or innocence in a forfeiture proceeding,

jeopardy is deemed to have attached. Ursery, supra;

nN eS

12

United States v. Torres, 28 F.3d 1463 (7th Cir. 1994).

The stay of the forfeiture proceedings does not necessar-

ily result in Petitioner avoiding a risk of determination of

guilt, but is a manipulation of the judicial process com-

promising Petitioner's constitutional rights under the Fifth

Amendment, and affords the government additional time

to prepare its criminal prosecution of Petitioner.

This court holds that regardless of the completion

of a first proceeding, if it is used to afford the prosecu-

tion a more favorable opportunity to convict in a subse-

quent proceeding, it is an example of when jeopardy

attaches. Downum v. United States, 372 U.S. 734 (1963);

Washington, supra; $405,089.23 U.S. Currency, supra.

The Eighth Circuit ruling that the governments' stay pre-

vents the attachment of jeopardy gives the government

discretionary power to determine when a defendant's

constitutional rights under the Fifth Amendment should

be applicable. The Eighth Circuit ignored this Court's

holdings in Downum and Washington, by granting the

government this power, and as such, its ruling is adverse

to applicable decisions, thereby requiring review.

13

CONCLUSION

WHEREFORE, for the foregoing reasons, Petitioner,

Lamond Sykes, respectfully requests that this Honorable

Court grant certiorari to review the decision of the United

States Court of Appeals for the Eighth Circuit.

Respectfully submitted,

LAW OFFICES OF

DONALD L. WOLFF

Paul J. D'Agrosa

Attorney for Petitioner

8019 Forsyth

St. Louis, Mo. 63105

(314) 725-8019

1A

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

+

No. 95-3661

+

UNITED STATES OF AMERICA, _)

)

Appellee, ) Appeal from the

) United States

vs. ) District Court for

) the Eastern District

LAMOND SYKES, a/k/a Q, ) of Missouri.

)

Appellant. )

+

Submitted: December 12, 1995

Filed: January 9, 1996

+

Before FAGG, HEANEY, and WOLLMAN, Circuit Judges.

HEANEY, Circuit Judge

Lamond Sykes appeals from the district court's de-

nial of his motion to dismiss an indictment. Sykes con-

tends that the indictment violates the Double Jeopardy

Clause of the Fifth Amendment because the government

has already punished him by seizing and forfeiting his

property for the same offenses. We affirm.

2A

BACKGROUND

Over a several-month period prior to indictment,

the government seized the following assets from Sykes:

1. A 1994 Jeep Cherokee valued at $32,257 seized

pursuant to 21 U.S.C. § 881 (a) (6);

2. $30,000 in U.S. Currency seized pursuant to 21

U.S.C. § 881 (a) (6);

3. Fourteen pieces of industrial dry cleaning equip-

ment seized from Sykes business pursuant to 19 U.S.C. §

981;

4. $19,222.96 in U.S. Currency seized pursuant to

18 U.S.C. § 981; and

5. $49,031 in U.S. currency seized pursuant to 21

U.S.C. § 881 (a) (6).

Among the five property items, Sykes contested only the

forfeiture of the Jeep and the $30,000. The government

completed forfeiture against the other three properties in

proceedings that were uncontested by Sykes.

Subsequently, the government indicted Sykes for

offenses arising from the same conduct that was the basis

of the prior seizures and forfeitures. The pending indict-

ment charges him with conspiracy to distribute heroin

and cocaine, money laundering, making a false statement

to a federally insured financial institution, and engaging

in a continuing criminal enterprise. At present, the gov-

ernment has stayed the forfeiture proceedings against the

Jeep pending the outcome of the criminal proceeding.

The government halted its civil action against the $30,000;

the same money is now the subject of a criminal forfeiture

count in the indictment.

3A

DISCUSSION

The question presented by this appeal is whether

the district court erred in holding that the indictment did

not violate the constitutional prohibition against succes-

sive punishments for the same offense. We review the

district court's denial of the motion to dismiss de novo.

United States v. Petty, 62 F.3d 265, 267 (8th Cir. 1995).

The Fifth Amendment provides that "No person

shall. . . be subject for the same offense to be twice put in

jeopardy of life or limb." U.S. Const. amend. V. Although

the test of the Amendment mentions only harms to "life

or limb", it is well settled that the Double Jeopardy Clause

applies to imprisonment and monetary penalties. See,

e.g., United States v. Halper, 490 U.S. 435 (1989); Ex

parte Lange, 85 U.S. 163, 18 Wall. 163 (1873). The

Double Jeopardy Clause protects against a second pros-

ecution for the same offense after an acquittal, a second

prosecution for the same offense after a conviction, and

multiple punishments for the same offense. Schiro vy.

Farley, 114 S.Ct. 783, 789 (1994). Sykes asserts that both

the prior forfeitures and the pending forfeitures consti-

tute punishment within the meaning of the Double Jeop-

ardy Clause and, therefore, that he cannot be prosecuted

for the same offenses which formed the basis of those

forfeitures. We disagree.

Before Sykes can invoke the Double Jeopardy Clause

to bar this prosecution, he must demonstrate that he has

already been subjected to punishment in a prior proceed-

ing. Serfass v. United States, 420 U.S. 377, 393 (1975)

("[It is a] fundamental principle that an accused must

suffer jeopardy before he can suffer double jeopardy.")

With respect to the completed administrative forfeitures,

Sykes was not a party to the proceedings; he did not

4A

contest the forfeitures. Under the holding of this court in

United States y. Pena, 67 F.3d 153, 155-56 (8th Cir. 1995),

Sykes was not placed in jeopardy by those civil proceed-

ings. But see, Gainer v. United States, 1995 WL 675437

(D. Kan. Nov. 8, 1995) and United States v. Brophil, 899

F. Supp. 1257, 1264 (D.Vt. 1995) (holding that failure to

appear at a civil forfeiture proceeding does not preclude

an individual from raising a double jeopardy claim in a

subsequent criminal prosecution.) Nor has Sykes been

subjected to prior jeopardy by the pending forfeitures of

the Jeep and $30,000. Although Sykes intervened in the

proceedings and asserted his ownership of the property,

this circuit has held that the government's stay of the

forfeiture proceedings prevents the attachment of the

jeopardy. United States v. Clemente, 1995 WL 704334,

*2 (8th Cir. Dec. 1, 1995) ("Jeopardy does not attach

upon the government's mere filing of an administrative

claim.")

Sykes fails to demonstrate the prerequisite prior

jeopardy. Thus, the indictment does not violate the Double

Jeopardy Clause and we affirm the district court.

5A

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

UNITED STATES OF AMERICA, )

Plaintiff,

vs. No. 4:94CR356

LAMOND SYKES, !

Defendant.

ORDER

This matter is before the Court on the motion of

defendant Lamond Sykes to dismiss the indictment in

this case on double jeopardy grounds. Pursuant to 28

U.S.C. §636 (b), this motion was referred to United

States Magistrate Judge Terry I. Adelman. Judge Adelman

has filed his Report and Recommendation recommend-

ing that the motion to dismiss be denied and defendant

has filed timely objections. Defendant argues that contin-

ued prosecution of this matter would twice place him in

jeopardy in violation of the double jeopardy clause of the

Fifth Amendment to the United States Constitution be-

cause certain items of property were seized from him by

the government in forfeiture proceedings.

Five items of property were seized from defendant

prior to the prosecution of this case. Those five items,

and the types of forfeiture proceedings, are:

6A

1. A 1994 Jeep Cherokee valued at $32,257 seized

pursuant to 21 U.S.C. § 881 (a) (6);

2. $30,000 in U.S. Currency seized pursuant to 21

U.S.C. § 881 (a) (6);

3. Fourteen pieces of industrial dry cleaning equip-

ment seized from Sykes business pursuant to 19 U.S.C. §

981;

4. $19,222.96 in U.S. Currency seized pursuant to 18

U.S.C. § 981; and

5. $49,031 in U.S. Currency seized pursuant to 21

U.S.C. § 881 (a) (6).

The first two forfeiture proceedings have not been

completed; the forfeiture actions on the last three items

were not challenged by defendant.

The Court has conducted a de novo review of all

matters relevant to the objections raised by defendant.

The Court agrees with the thorough reasoning of Judge

Adelman, and believes that his legal conclusion that jeop-

ardy did not attach in any of the forfeiture proceedings is

correct. The Court will therefore adopt Judge Adelman's

Report and Recommendation as the opinion of this Court,

as supplemented herein.

Judge Adelman's Report and Recommendation was

issued on October 4, 1995. October 5, 1995, a panel of

the Eighth Circuit Court of Appeals rejected a similar

double jeopardy challenge based on uncontested state

civil forfeiture actions. See, United States v. Pena, No.

94-3750 (8th Cir. October 5, 1995) (slip op.). Judge

Adelman, of course, did not consider the Pena opinion as

it had not yet been decided at the time of his Report and

Recommendation. However, the holding of that case is

7A

squarely in accord with the arguments raised by the

government in this case.

Pursuant to the directions contained in United States

y. Grabinski, 674 F.2d 677, 679 (8th Cir. 1982), the

undersigned further finds that defendant's motion to

dismiss this case on double jeopardy grounds is not

frivolous. Indeed, until last week, the Eighth Circuit had

not considered this issue at all. In the Pena case, the

defendant did not properly raise the issue at the trial

court level, and the extent of the record, briefing or

argument on the issue before the Circuit is not clear.

Moreover, in Pena, the forfeiture proceeding was a state

proceeding and the Court based its decision, in part, on

the dual sovereignty doctrine. This case, of course,

involves only federal proceedings, so to the extent the

Pena decision was based on the dual sovereignty doc-

trine, it is distinguishable from this case. Therefore, the

Court finds that the defendant's motion on these grounds

is not frivolous and presents a colorable defense.

Accordingly,

IT IS HEREBY ORDERED that defendant's objec-

tions to the Order and Recommendation of United States

Magistrate Judge Terry I. Adelman are overruled.

IT IS FURTHER ORDERED that the Report and

Recommendation of United States Magistrate , udge Terry

I, Adelman is sustained, adopted, and incorporated

herein.

IT IS FURTHER ORDERED that the motion of de-

fendant, Lamond Sykes to dismiss to prevent double

jeopardy [#5665] is denied.

8A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 95-3661EMSL = |

UNTi zD STATES OF AMERICA,

Appellee, Appeal from the |

United States )

vs. — District Court for |

LAMOND SYKES, a/k/a Q,

the East beta )

re) isSOUr}.

The petition for re-hearing filed by the appellant has

been considered by the court and is denied.

i i i i

Appellant.

February 7, 1996