Opposition Brief — Turner v. Illinois

Supreme Couri. U.S |

(% FILED

No. 95-1571 |: gun 6 199%

IN THE pean

Supreme Court of the United States

OCTOBER TERM, 1995

RODERICK TURNER and PAUL SCHROEDER,

vs.

Petitioners,

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

On Petition for Writ of Certiorari

to the Supreme Court of Illinois

BRIEF IN OPPOSITION

NORBERT J. GOETTEN

Director

WILLIAM L. BROWERS

Deputy Director

vounsel of Record

State’s Attorneys

= llate Prosecutor

JAMES E. RYAN

Attorney General of Illinois

BARBARA A. PREINER

Solicitor General of Illinois

ARLEEN C. ANDERSON

LISA ANNE HOFFMAN

kin Avenue Assistant Attorneys General

Elgin, Illinois 60123 100 West Randolph Street

(847) 697-0020 = dng?

‘hicago, Illinois 60601

Counsel for Respondent (312) 814-3000

DAVID R. AKEMANN

State’s Attorney

Kane Count

37 West , Route 38

St. Charles, Illinois 60175

(708) 232-8500

Of Counsel

Counsel for Respondent

Printed by Authority of the State of Illinois (P.O. 36577—60—6-6-96)

i

QUESTION PRESENTED FOR REVIEW

Whether the Illinois Supreme Court properly employed

the test of Blockburger v. United States, 284 U.S. 299, 52

S.Ct. 180, 76 L.Ed. 306 (1932), to determine that Peti-

tioners’ asset forfeitures could not have been punishment

for the same offenses for which Petitioners stand crimi-

nally charged.

ii

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW .... i

TABLE OF AUTHORITIES .............005. ili

REASONS FOR DENYING THE WRIT:

THE ILLINOIS SUPREME COURT PROPERLY

EMPLOYED THE TEST OF BLOCKBURGER v.

UNITED STATES, 284 U.S. 299, 52 S.Ct. 180, 76

L.Ed. 306 (1932), TO DETERMINE THAT PETI-

TIONERS’ ASSET FORFEITURES COULD NOT

HAVE BEEN PUNISHMENT FOR THE SAME

OFFENSES FOR WHICH PETITIONERS

STAND CRIMINALLY CHARGED .......... ]

CONCLUSION ....00005050ssueneuseeeee eee 12

iil

TABLE OF AUTHORITIES

CASES

Austin v. United States, 509 U.S. , 118 S.Ct.

2801, 125 L.Ed.2d 488 (1998) .............. 10, 11

Blockburger v. United States, 284 U.S. 299, 57

S.Ct. 180, 76 L.Ed. 309 (1932) ........... < i, 1

In re $58,263.00, 159 Ill.App.3d 114, 512 N.E.2d

740, 111 Ill.Dec. 351 (Ist Dist. 1987)....... 5

In re P.S., 169 Il.2d 260, 661 N.E.2d 329, 214 Ill.

i eC OE hie ks nba 66's 4 oes 3, 6, 10

People v. Baker, 85 Ill.App.3d 661, 406 N.E.2d

1152, 40 Ill.Dec. 785 (2nd Dist. 1980)....... 10

People v. Edwards, 74 Ill.2d 1, 383 N.E.2d 944,

a ick scans aeeenwenes 10

People v. Munday, 134 Ill.App.3d 971, 481 N.E.2d

338, 89 Ill.Dec. 787 (2nd Dist. 1985)....... 10

United States v. United States Coin and Currency,

401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434

ee CS Eee tb ebeseuyss 5

STATUTES

We RE PUD 6 Sick cca wenccstencsceseces

Ill. Rev.Stat.1991, ch. 56%, par. 712(aX5) .........

SE EMD wiccecceccccnnesicencccess

eee h eck adeeshancsaseeed soins

a. an GA bys O40 6406 bee a eS ES

- Ph W Po

or

OTHER AUTHORITIES

Illinois Supreme Court Rule 367 .............. 10

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

RODERICK TURNER and PAUL SCHROEDER,

¢ Petitioners,

\ Vs.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

On Petition for Writ of Certiorari

to the Supreme Court of Illinois

BRIEF IN OPPOSITION

1

REASONS FOR DENYING THE WRIT

THE ILLINOIS SUPREME COURT PROPERLY EM-

PLOYED THE TEST OF BLOCKBURGER v. UNITED

STATES, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932),

TO DETERMINE THAT PETITIONERS’ ASSET FORFEI-

TURES COULD NOT HAVE BEEN PUNISHMENT FOR

THE SAME OFFENSES FOR WHICH PETITIONERS

STAND CRIMINALLY CHARGED.

The Petitioners fault the IHinois Supreme Court for its

analysis under Blockburger v. United States, 284 U.S.

299, 57 S.Ct. 180, 76 L.Ed. 309 (1932), asserting as fol-

lows:

The issue is not whether the forfeiture was an ele-

ment of the criminal offenses charged against each

Petitioner but whether forfeiture of Petitioners’ U.S.

Currency was a prior punishment for the same crim-

inal offenses. Fines and imprisonment are not ele-

ments of criminal offenses, but they are punishment

for the offense. (Petition, page 20).

Assuming, arguendo, that Petitioners are correct in how

they formulate the Blockburger inquiry, they are mani-

festly incorrect in their conclusion that the forfeitures

which were ordered were premised on the same offenses

with which they are charged criminally, in Schroeder's

case, unlawful possession of cannabis, and unlawful

possession of cannabis with intent to deliver, and in

Turner’s case, unlawful possession of a controlled sub-

stance, unlawful possession of a controlled substance

with intent to deliver, and unlawful possession of a con-

trolled substance without a tax stamp.

The criminal charges against the petitioners alleged

their then current possession of cannabis or cocaine. But

the forfeitures of petitioners’ money could not have been

based on that (current) possession. Consideration of the

2

statutes under which Respondent sought, and obtained,

forfeiture of these Petitioners’ money is essential at this

point. In Turner’s case, the money was forfeited pursuant

to 720 ILCS 570/505(aX5), which renders forfeitable:

everything of value furnished, or intended to be fur-

nished, in exchange for a substance in violation of

this Act, all proceeds traceable to such an exchange,

and all moneys, negotiable instruments and securi-

ties used, or intended to be used, to commit or in any

manner to facilitate any violation of this Act.

In Schroeder’s case, the money was forfeited pursuant to

Ill.Rev.Stat.1991, ch. 56%, par. 712(a)(5)', which deemed

subject to forfeiture:

everything of value furnished or intended to be fur-

nished by any person in exchange for a substance in

violation of this Act, all proceeds traceable to such an

exchange, and all moneys, negotiable instruments,

and securities used, or intended to be used, to com-

mit or in any manner facilitate any felony violation

of this Act.

The provisions are identical, except that one concerns

offenses under Illinois’ Cannabis Control Act, and limits

forfeitures to felony violations of that Ac‘, whereas the

other concerns offenses under Illinois’ Controlled Sub-

stance Act.

As applicable here, these provisions allow forfeiture

only for past or intended future violations of either Act,

and not for a current possession of either cannabis or a

controlled substance. This is evident‘from the very tenses

' Tllinois recompiled its statutory scheme after Schroeder’s for-

feiture action, and the cannabis-related forfeiture provision is

now found at 720 ILCS 550/12(a\5).

3

of the verbs used in the various clauses. Of necessity,

those verbs speak to past criminal violations, or intended

future violations of the Acts, and not to present posses-

sory offenses. As to a present possessory offense, the gov-

ernment hardly could prove that the seized money was

furnished in exchange for the very substance adjacent to

which it had been found; had the money been so fur-

nished, the money would have been spent, and would not

be in the position in which it was found. Similarly, if the

money were intended to be furnished in exchange for a

substance in violation of the Acts, the substance intended

to be acquired would not yet have been obtained, and the

substance found adjacent to the money could not be the

predicate for the forfeiture. Finally, “proceeds traceable

to such an exchange” necessarily connotes that the ex-

change occurred in the past, such that the contraband no

longer would be present.

The Illinois Supreme Court aptly made this point in its

decision, regarding Petitioner Turner, as follows:

Moreover, we note that there is no factual link be-

tween the cash as proceeds of a drug transaction and

the criminal offenses. The cash was seized during the

execution of a search that resulted in the seizure of

cocaine which, in turn, was the basis for the above

charges being brought against Turner. The cash

could not have been traced to the proceeds of any

sale of the cocaine found in the indictment since de-

fendant is charged with possession of that cocaine,

which had not yet been sold. Jn re P.S., 169 [ll.2d

260, 661 N.E.2d 329, 214 Ill.Dec. 475, 483 (1996).

The same analysis is equally applicable to the case in-

volving Petitioner Schroeder.

Further, contrary to Petitioners’ assertion at page 22

of their petition, Respondent did indeed allege in the

4

trial court that each Petitioner’s money was forfeitabie

because each Petitioner may have committed other

unspecified illegal drug transactions. Respondent's com-

plaints for forfeiture in these cases specifically invoked

the above-quoted statutes to justify forfeitures of the

Petitioners’ money (R.T. SC 3-4; P.S. C 2-4, 7-9”), and, as

just discussed, those statutes necessarily speak to past

or intended future violations of the Acts within which

they are found.

Petitioners make various arguments in their petition

concerning the following statutory presumption in IIli-

nois’ Drug Asset Forfeiture Procedure Act, which was

alleged in both forfeiture complaints and discussed in the

Illinois Supreme Court’s decision:

The following situations shall give rise to a presump-

tion that the property described therein was fur-

nished or intended to be furnished in exchange for a

substance in violation of the Illinois Controlled Sub-

stances Act or the Cannabis Control Act, or is the

proceeds of such an exchange, and therefore forfeit-

able under this Act, such presumptions being rebut-

table by a preponderance of the evidence:

(1) All moneys, coin, or currency found in close prox-

imity to forfeitable substances, to forfeitable drug

manufacturing or distributing paraphernalia, or to

forfeitable records of the importation, manufacture or

distribution of substances. 725 ILCS 150/7(1).

* Actually, in the complaint for forfeiture of Schroeder's cash,

the State mistakenly cited J/l.Rev.Stat.1989, ch. 56%, par.

1505, which was the provision in the Controlled Substances

Act, and not the Cannabis Control Act. But such fact is of no

moment since in all aspects relevant here the two Acts are

essentially identical.

5

As is evident, the presumption established in this pro-

vision mirrors nearly perfectly the above-cited forfeiture

provisions under which Respondent achieved forfeiture

of Petitioners’ money.

Petitioners first claim that their currency could not be

forfeited on the presumption that they may have commit-

ted some other unspecified drug transaction at some un-

known time and place. They assert that if the State

could do so, the State could forfeit currency of innocent

persons at any time. Without explanation, they cite

United States v. United States Coin and Currency, 401

U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), for this

proposition. Respondent is at a loss to understand the

relevance of that case to the claim made by Petitioners.

The Petitioners’ concerns for the rights of innocent

owners are addressed by the statute itself. First, the pre-

sumption on its face allows for its rebuttal, and the pre-

sumption has been interpreted by Illinois courts not to

undermine the government's ultimate burden of proof to

sustain a forfeiture. Jn re $53,263.00, 159 Ill.App.3d 114,

512 N.E.2d 740, 111 Ill.Dec. 351 (1st Dist. 1987). Addi-

tionally, Illinois’ Drug Asset Forfeiture Procedure Act

provides a number of exemptions from forfeiture, includ-

ing one for innocent owners of assets seized. 725 ILCS

150/8(a). Thus, had these forfeitures been based solely on

the presumption, they still would be valid.

Petitioners next assert that their money was forfeited

based solely on the presumption régarding its proximity

to forfeitable substances in their residences “and not be-

cause Petitioners, or either of them, may have committed

unspecified illegal drug transactions.” (Petition, page 22).

While Respondent may have sought the forfeitures of

Petitioners’ money by asserting the statutory presump-

6

tion regarding money found in close proximity to contra-

band, it by no means can be said that Respondent ob-

tained the forfeitures by operation of the presumption.

First, notwithstanding that Petitioners were the mo-

vants in the trial court and the appellants in the earlier

appeals to the Illinois Appellate Court, they never

brought to those courts or to the Illinois Supreme Court

the actual transcripts of the circuit court forfeiture pro-

ceedings which might have proved definitively the basis

of the forfeitures.’ Respondent must note here the pos-

sibly misleading nature of one sentence in the Illinois

Supreme Court’s decision. In discussing Turner’s case,

that court stated, “In making the determination that the

cash was subject to forfeiture, the trial judge stated that

the cash was the product of illegal activity.” Jn re P.S.,

214 Ill.Dec. at 483. While a trial judge did say that the

forfeiture was the product of illegal activity (R.T. R. 12),

it was the judge who presided over Turner’s motion to

dismiss his criminal charges, in interpreting the earlier

forfeiture, and not the judge who presided over the forfei-

ture proceeding itself.

More importantly, from the records which actually

were before the Illinois reviewing courts the almost ines-

* As appellee in the Appellate Court, Respondent did not

assert a default for such failures by Petitioners. This was be-

cause, instead of employing a Blockburger analysis, Respon-

dent, both there and in the Illinois Supreme Court, took the

more global position that the double jeopardy clause is not

implicated by a prior forfeiture. The Illinois Supreme Court

addressed that argument in its decision only with respect to

a third defendant, John Kimery, and rejected the position of

the State of Illinois. The petition for a writ of certiorari from

that part of the decision is pending before this Court in J/linois

v. Kimery, 95-1436.

7

capable inference is that the forfeitures of Petitioners’

money were not premised on the statutory presumption,

but on other evidence which showed that the money in

question was the proceeds of earlier transactions in con-

traband.

In its written memorandum in support of its response

to Turner’s motion to dismiss the criminal charges, Re-

spondent specifically alluded to the fact that, at Turner’s

earlier forfeiture proceeding, the following testimony was

given but unrefuted by Turner:

Det. Fields also testified that Roderick Turner gave

a taped statement in which he admitted that he had

been selling cocaine for five years and that the quan-

tity of cocaine found (3 ounces) during the search

represented a 2 days supply. Field’s [sic] also testified

that Turner accepted an estimate that Turner made

about a $1,000.00 per week profit from his drug sales

based on the quantities he was selling. (R.T., C. 46).

That testimony makes clear that the forfeiture of Turn-

er’s money must not have been based on the statutory

presumption arising from its proximity to the contraband

found in his premises.

The record brought by Petitioner Schroeder suggests

that similar proof must have been forthcoming in his

case. The pleadings in his forfeiture action include: a

written allegation by Schroeder that the currency in

question “was acquired through legal means” and was

therefore “not subject to forfeiture” (P.S., C. 16-17);

pleadings by Respondent State of Illinois seeking to com-

pel Schroeder’s answers to civil interrogatories and his

production of tax returns and other financial documenta-

tion, all clearly designed to ascertain the legitimate

sources of income which the minor child might have had,

8

(P.S. C. 24-27, 43 et seq.); and orders that Schroeder

answer certain of the questions from the interrogatories.

(P.S. C. 30, 48). Finally, a minute order indicates that a

trial was held with five witnesses testifying (P.S. C. 49),

and the written order of forfeiture indicates that the

seized $1,627.22 was forfeited pursuant to Section

712(a\5) of the Cannabis Control Act, a different provi-

sion than the one setting forth the statutory presump-

tion. (P.S. C. 49-50). It is inferable that at the forfeiture

hearing it was shown that this minor child had no legal

means to have possessed the $1,627.22 which was seized.

Moreover, as to Schroeder, even if the statutory proxim-

ity presumption were used, it could be used independent

of considering the cannabis, itself, since the statute

allows the presumption for the proximity of cash to for-

feitable drug manufacturing or distributing parapher-

nalia, and the record demonstrates that, in addition to

cannabis, such paraphernalia was found in proximity to

Schroeder’s cash. (P.S. C. 3, 7-9).

Respondent acknowledges that in these cases the Peti-

tioners’ possession of contraband cannabis or cocaine

triggered the forfeiture actions. However, as shown, the

forfeitures did not rest on those acts of possession, and

the relevant statutes do not require current acts of

possession to justify forfeitures.

Against this background, it is obvious that there is no

merit in Petitioners’ claim that they were denied the

opportunity in the trial court to defend against forfei-

tures premised on other, unspecified illegal transactions.

Since the complaints for forfeiture in Petitioners’ cases

recited the statutory language, and that language clearly

refers to either prior or intended future transactions,

Petitioners certainly were on notice of the basis on which

9

Respondent sought the forfeitures. Petitioners therefore

were in the position to respond to it in the trial court,

and apparently never claimed there that the claimed

bases for the forfeitures were too vague to defend

against. Indeed, the above-quoted written claim by

Schroeder, that the cash seized at his house “was

acquired through legal means,” appears to be precisely a

response regarding his past acquisition of the money in

question.

There also is no merit in Petitioners’ claim that the

Illinois Supreme Court acted sua sponte in determining

the bases of the forfeitures. Amicus curiae actively pro-

moted the argument before the Illinois Supreme Court,

and the Petitioners had, and took, the opportunity to re-

spond to the argument in their brief before that court. In

its decision, the Illinois Supreme Court simply responded

to an argument presented to it. It did not act sua sponte.

Further, in light of the response which Petitioners

offered to the argument by amicus, they cannot now be

heard to claim that the Illinois Supreme Court failed to

consider, or violated, their purported constitutional

rights to be informed of the nature and cause of the accu-

sations supporting the forfeitures. In that court, Petition-

ers never made the argument which they posit here,

though it would have been logical to do so, since it is

simply a response to the argument made by amicus.

Rather, they first argued that Respondent had brought

an insufficient record to show that the forfeiture actions

were premised on the money having been proceeds, an

ironic claim since Petitioners had been the movants for

dismissal in the trial court and the appellants in the

Appellate Court, and therefore bore the burden to bring

10

records demonstrating their entitlement to relief in those

courts. People v. Munday, 134 Ill.App.3d 971, 481 N.E.2d

338, 89 Ill.Dec. 787 (2nd Dist. 1985); People v. Edwards,

74 [ll.2d 1, 383 N.E.2d 944, 23 Ill.Dec. 73 (1978).

Next, they argued that, by not raising the claim in the

trial or appellate courts, Respondent had waived the

claim that the money had been proceeds of earlier trans-

actions, an argument which the court chose to reject, (Jn

re P.S., 214 Ill.Dec. at 482), and one which does not

square with how the forfeiture trials apparently were

litigated.

Finally, in response to the position of amicus that Peti-

tioners’ money may have been proceeds of earlier trans-

actions, and that the forfeiture of proceeds from illegal

acts is remedial in nature, Petitioners simply asserted

that Austin v. United States, 509 U.S. __, 113 S.Ct.

2801, 125 L.Ed.2d 488 (1993) “precludes the court from

examining the nature of the particular proceeds forfeit-

ed.” In their brief, Petitioners never voiced any concern

for the notice which they now seek. Nor did they seek re-

hearing, pursuant to Supreme Court Rule 367, a glaring

omission if they truly believed, as they now assert, that

their rights were violated solely as a result of the Illinois

Supreme Court’s decision. See, People v. Baker, 85 Iil.

App.3d 661, 406 N.E.2d 1152, 40 Ill.Dec. 785, 788 (2nd

Dist. 1980).

Respondent questions Petitioners’ notice claim in any

event. Although their petition is hardly clear on the

point, Petitioners appear to assert that if a forfeiture

may be premised on a property owner’s prior illegal acts,

the property owner is entitled to specific notice of those

acts, as if he were being prosecuted criminally for them.

11

They cite no authority directly supporting such a claim.

Even assuming that such prior criminal acts are the pur-

ported basis for a forfeiture, the property owner in no

manner is “charged” with such acts in a forfeiture pro-

ceeding, such that the forfeiture proceeding itself be-

comes tantamount to a criminal trial. Petitioners’ cita-

tion of a footnote from Austin v. United States, 509 U.S.

___., 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), for the prop-

osition that the dual nature of forfeiture proceedings has

resulted in confusion as to what Constitutional principles

apply, appears to be an admission that such is not neces-

sarily the law. Further, the forfeiture provisions in IIli-

nois’ Controlled Substance and Cannabis Control Acts do

not even require proof of prior criminal acts to justify for-

feiture.

Given the record, and Petitioners’ concession that one

of their claims is raised for the first time before this

Court, Turner’s and Schroeder’s petition, standing alone,

might appear inappropriate for the grant of a writ of cer-

tiorari. But it is most difficult to view their petition

standing alone. In deciding these Petitioners’ cases under

Blockburger, the Illinois Supreme Court essentially as-

sumed the double jeopardy clause to be implicated by

prior in rem asset forfeitures, when there is no precedent

from this Court so holding. Yet it is in the very same

opinion that the Illinois Supreme Court expressed its

rationale for making that assumption, albeit regarding

a third defendant. That portion of the Illinois Supreme

Court’s decision already is pending before this Court in

Illinois v. Kimery, No. 95-1436. Viewed together, the

three cases cry out for review by this Court.

* CONCLUSION

For the foregoing reasons, Respondent respectfully re-

quests that a Writ of Certiorari be denied to review the

decision of the Supreme Court of the State of Illinois.

Alternatively, Respondent requests that Writs of Certio-

rari be granted to review the entirety of the decision of

the Supreme Court of Illinois, i.e., including the petition

in Illinois v. Kimery, No. 95-1436.

Respectfully submitted,

NORBERT J. GOETTEN

Director

WILLIAM L. BROWERS

Deputy Director

ounsel of Record

State’s Attorneys

Appellate Prosecutor

2038 kin Avenue

Elgin, Illinois 60123

(847) 697-0020

Counsel for Respondent

DAVID R. AKEMANN

State’s Attorney

Kane Count

37 West , Route 38

St. Charles, Illinois 60175

(708) 232-3500

Of Counsel

JAMES E. RYAN

Attorney General of Illinois

BARBARA A. PREINER

Solicitor General of Illinois

ARLEEN C. ANDERSON

LISA ANNE HOFFMAN

Assistant Attorneys General

100 West Randolph Street

12th Floor

Chi , Illinois 60601

(312) 814-3000

Counsel for Respondent