# Appendix — Hall v. Indiana Department of Revenue > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1683%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1996 - **Citation:** 517 U.S. 1210 ## Text ve Ve ~ FILED (2) 95 158 OMAR 26 19% OFEME OF THE GLERK Case No.: IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1995 KEITH and MARY HALL, Petitioners, v. INDIANA DEPARTMENT OF STATE REVENUE and KENNETH L. MILLER, Commissioner, Respondents. ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF INDIANA APPENDIX Andrew C. Maternowski Stephen L. Laudig Ind.Sup.Ct. Bar #14901-49 Counsel of Record 3601 North Pennsylvania Street 600 Inland Building Indianapolis, IN 46205-3435 156 East Market Street Tel.: (317) 923-4441 Indianapolis, IN 46204 Tel.: (317) 637-6071 TABLE OF CONTENTS Page Hail v. indiana Dept. of State Revenue 660 N.E.2d 319 (ind. ee 1 Bryant v. State 660 N.E.2d 290 (ind. SSS a a 13 Clifft v. Indiana Dept. of State Revenue 660 N.E.2d 310 (ind. NEES 83 Hall v. indiana Dept. of State Revenue 641 N.E.2d 694 (ind. Tax _ esubtlliar 114 Clifft v. indiana Dept. of State Revenue 641 N.E.2d 682 (ind. Tax ET ee 120 ete, NERS eee Ae 167 cig Bg TT ROT eee ET tee 169 Petition to Set Aside Final Determination I 171 Partial Motion for Summary Judgment ............cc..c........ 173 Since Sop ich ce ce, IE Se aA 175 Constitutional Provisions and Statutes........................ 177 PUM TITTIIN vscicshestseiidincusiesthncasehisinnhcizeninadicesanenseeesieseciescecse 187 internal Revenue Service Form 8300 ae hints ldciscidcasasitrenensstncininassnictenitsass secievernansesiacecn coe. 189 IN THE SUPREME COURT OF INDIANA KEITH AND MARY HALL, Petitioners, Vv. INDIANA DEPARTMENT OF STATE REVENUE and KENNETH L. MILLER, COMMISSIONER, me ee ee ee ee ee ee” Respondents. Cause No. 49S10-9503-TA-336 APPEAL FROM THE INDIANA TAX COURT The Honorable Thomas G. Fisher, Judge December 27, 1995 SHEPARD, Chief Justice. The Indiana Department of State Revenue assessed over eleven million dollars in drug taxes against a couple who illegally possessed some 300 pounds of marijuana. The couple now seeks to avoid that tax liability by claiming the assessment TIO rt meen tise was a second jeopardy for the same offense. We conclude that they may not. |. History of the Case On February 12, 1993, police entered and searched the home of petitioners Keith and Mary Halil. During their inspection of the Halls’ property, police discovered a bale of marijuana weighing approximately 300 pounds. They arrested the Halls and charged them with felony possession of marijuana. Four days later, appellee Indiana Department of State Revenue assessed the Controlled Substances Excise Tax (CSET) against the Halls in the amount of $5,691 ,320.' The Department also assessed a 100 percent penalty because the Halls' did not pay the CSET when they first possessed ‘The Department calculated the CSET by multiplying the weight of the marijuana, roughly 142,283 grams, by the statutorily prescribed amount of $40 per gram. Ind. Code Ann. § 6-7-3-6 (West Supp. 1994). the drug. Ind. Code Ann. § 6-7-3-11(a) (West Supp. 1994). The Halls' total CSET liability was thus $11,382,640. On the same day, the Marion County Sheriffs Department garnished Mary's wages and seized the Halls' property as partial payment of their CSET liability. Appellant's Petition to Set Aside Final Determination, ¥ 2. Subsequent to the assessment, Keith pled guilty to the charge of possessing marijuana and was convicted of a class D felony. The State dismissed the criminal charge against Mary. The Halls sent a letter of protest to the Department, contesting their tax liability. The Department held a hearing and denied the Halls’ protest. | Subsequently, the Halls petitioned the Indiana Tax Court for review of the assessment, claiming the CSET violated their privileges against self- incrimination, as well as their double jeopardy, due process and “Interest immediately began accruing at the rate of $1,091.49 per day. equal protection rights afforded by the United States and Indiana Constitutions.° On October 11, 1994, the Tax Court issued its opinion in this action and three companion cases addressing the same issues. Hall v. Indiana Dep't of State Revenue (1994), Ind. Tax, 641 N.E.2d 694: Bailey v. Indiana Dep't of State Revenue ili i tty ete DOR NC ea OP AON m “ (1994), Ind. Tax, 641 N.E.2d 695; Clift v. Indiana Dep't of State Revenue (1994), Ind.Tax, 641 N.E.2d 682; Hayse v. Indiana Dep't of State Revenue (1994), Ind. Tax, 641 N.E.2d 698. The | court ruled that the CSET did not violate the Halls’ privileges against self-incrimination or their rights to equal protection and procedural due process. The court did conclude, however, that the CSET was Keith's second jeopardy, imposed in violation of the Fifth Amendment, and set aside his tax liability. It held >The Halls do not question the constitutional validity of the CSET under the Indiana Constitution in their appeal to this Court. Moreover, they presented no cogent state constitutional / claim before the Tax Court. further that no violation of Mary's right against double jeopardy occurred because she had suffered no criminal sanction before or after her CSET assessment. Both the Halls and the Department petitioned this Court for review, which we granted. The following issues are presented: 1. Whether the CSET assessment was a second jeopardy in violation of the Halls’ double jeopardy rights under the Fifth Amendment to the U.S. Constitution; 2. Whether the CSET compels self-incrimination in violation of the Fifth Amendment to the U.S. Constitution; and, 3. Whether the CSET assessment abrogated the Halls' procedural due process rights afforded by the Fourteenth Amendment to the U.S. Constitution. ll. Constitutionality of the CSET Like the taxpayer in today's case of Bryant v. State (1995), Ind, _. =-NE2d ___, the Halls claim their CSET ‘aieaicinececaiaiiimaaul het Os ag at ee assessment was the second jeopardy imposed against them for the same offense. In Bryant, we followed the U.S. Supreme Court's recent analysis in Montana Dep't. of Revenue v. Kurth Ranch, 114 S.Ct. 1937 (1994), and concluded that a CSET assessment is a jeopardy. We reached this decision only after evaluating the CSET's deterrent purpose, high rate of taxation, prerequisite of the commission of a crime and penal nature objectives. Ultimately, we concluded that, when combined with the CSET's criminal sanction, Bryant had indeed been twice placed in jeopardy. Because the nature of the Halls’ claim mirrors that of Bryant, our Bryant analysis is applicable. We note that Mary was subjected to neither criminal prosecution nor punishment, and therefore conclude the CSET was her only jeopardy. Her Fifth Amendment rights were not offended. By contrast, Keith was convicted for felony drug possession after the Department's CSET assessment. The CSET was therefore his first jeopardy and the criminal action a second jeopardy in violation of the Double Jeopardy Clause.“ The Halls also argue that the CSET unconstitutionally compels self-incrimination and that the tax assessment denied their rights to procedural due process. We addressed issues identical to these in today's decision in Clifft v. Indiana State Dep't. of Revenue (1995), Ind, = N.E.2d__. _—The analysis emerging from Clifft leads us to hold that the CSET violates neither the Halls’ privilege against self-incrimination nor their “Keith lost his $40,000 in the wake of a jeopardy assessment just as Bryant suffered seizure of assets including his home in the immediate aftermath of the jeopardy assessment issued to him. Such is characteristic of the jeopardy assessment. It constitutes a civil judgment and may lead to seizure as payment just as a conviction in criminal court may lead to fines and incarceration. It is this similarity that leads us to conclude that assessment is the point at which jeopardy attaches for Fifth Amendment purposes. 7 rights to procedural due process afforded by the Fifth and Fourteenth Amendments. il. Conclusion We affirm the decision of the Tax Court with respect to the Halls’ self-incrimination and due process claims. We affirm the Tax Court’s denial of Mary's double jeopardy claim. We reverse as to Keith's double jeopardy claim and reinstate the CSET assessment.” Dickson and Selby, JJ., concur. DeBruler, J., concurs in result and dissents with separate opinion to follow. Sullivan, J., concurs and dissents with separate opinion. SULLIVAN, Justice, concurring and dissenting. As explained in part Il of my dissent today in State v. Bryant (1995), Ind., N.E.2d (Sullivan, J., dissenting), ‘Keith's criminal conviction is not before us in this tax appeal therefore not subject tc disposition here. 8 | believe the majority errs in holding that an administrative assessment of a tax can constitute a first punishment for double jeopardy purposes.° As such, | believe that Keith Hall's criminal conviction is not contrary to the Double Jeopardy Clause. However, payment of the CSET assessed would constitute a second punishment of Keith Hall and would therefore be barred by De S.Ct. 1937 (1994) (tax on the possession of illegal drugs assessed after the state has imposed a criminal penalty for the same conduct violated Double Jeopardy Clause). | agree with the majority that no second jeopardy occurred in Mary Hall's case and that the CSET violates neither "if we were to proceed under the alternative approach | describe in part Ill of my Bryant dissent, | would remand to the Tax Court for determination of when jeopardy attached, (.e., when evidence was first presented to a trier of fact in the Halls’ contest of the assessment. If that occurred prior to jeopardy attaching in Keith Hall's criminal prosecution, then the result would be the same as the majority reaches here. the Halls’ privilege against self-incrimination nor their due process rights. DeBRULER, Justice, concurring and dissenting. | would affirm the entire decision of the Tax Court in this case. Mary's double jeopardy claim is properly denied in light of the fact that she was not subjected to a first jeopardy in the criminal prosecution which was initiated and then dismissed. Keith's double jeopardy claim, however, has merit. At the time the Tax Court ruled, Keith had been punished as a result of the criminal proceeding against him, and property of Keith and Mary worth roughly $40,000 had been seized by the Marion County Sheriff pursuant to the tax warrant the Department issued with its jeopardy assessment. | agree with the Tax Court that the holding in Department of Revenue v. Kurth Ranch, __ U.S. _, 114 S.Ct. 1937, 428 L.Ed.2d 767 (1994), commands the conclusion reached by the Tax Court that further tax collection efforts by the Department would subject Keith to a second punishment 10 prohibited by the Double Jeopardy Clause. | find this case different from today's case of Bryant v. State (1995), Ind., 660 N.E.2d 290, in which the taxpayer, while being first subjected to a punishment in a criminal prosecution, had at no time paid any of the tax nor had the taxpayer been subject to any collection efforts by revenue agents. 11 eS ee ee IN THE SUPREME COURT OF INDIANA ROSS BRYANT, Appellant (Defendant Below), Vv. STATE OF INDIANA, me ee ee ee ee eee Appellee (Plaintiff Below). Cause No.: 27S04-9409-CR-865 December 27, 1995 SHEPARD, Chief Justice. We confront several questions of first impression involving Indiana's new drug tax. The State imposed both civil and criminal sanctions on appellant Ross Bryant for his failure to pay the Indiana Controlled Substance Excise Tax (CSET).’ He appealed the criminal penalty, claiming he was twice punished for the same offense. We hold that the civil and | "Ind. Code Ann. §§ 6-7-3-1 to 6-7-3-17 (West Supp. 1994). 13 criminal penalties were each jeopardies, and that both cannot be imposed without violating the Double Jeopardy Clause of the United States Constitution. i. Statement of Facts In August 1992, Grant County Sheriffs deputies responded to an alarm at Bryant's home. Discovering an open door with fresh pry marks on it, they entered the dwelling and searched it. There was no one in the home, but police found over 250 marijuana plants in the basement, outhouse and garden. Officers then obtained a warrant and completed a more thorough search which uncovered marijuana seeds, dried marijuana and other drug paraphernalia. When police questioned Bryant upon his return, he confessed that the marijuana was his and that he was growing it for his own use. Police then arrested Bryant and transported him and the objects seized to the Grant County Jail. The deputies next contacted the Indiana Department of Revenue to report their findings. The Department dispatched a 14 special agent to the jail to determine the amount of Controlled Substance Excise Tax owed by Bryant.° The agent weighed the marijuana and assessed a tax of $83,680." The agent then met with Bryant and demanded payment. Because Bryant did not immediately pay the CSET, the agent served him with a "Record of Jeopardy Findings and Jeopardy Assessment Notice and Demand" which required payment of the CSET plus Ind. Code Ann. §§ 6-7-3-8, 11 (West Supp. 1994). The CSET, which went into effect on July 1, 1992, imposes a tax on the delivery, possession or manufacture of a controlied substance in Indiana in violation of Ind. Code ch. 35-48-4 or 21 U.S.C. §§ 841-852. Ind. Code Ann. § 6-7-3-5 (West Supp. 1994). The marijuana seized from Bryant weighed 2092 grams. The CSET prescribes that schedule |, |i, and II! controlled substances (including marijuana) are taxed at a rate of $40 per gram and a proportionate amount for each fraction of a gram. Ind. Code Ann. § 6-7-3-6 (West Supp. 1994). Schedule |, I! and ||| substances are identified at Ind. Code Ann. §§ 35-48-2- 4, -6, and -8 (West Supp. 1994). 15 a 100 percent penalty for nonpayment of the tax.'° Bryant's total obligation to the State was thus $167,360. The very next day, the Department levied on Bryant's "checking and/or savings accounts, contents of safe deposit boxes, money market accounts, certificates of deposit, . . . [and] any other evidence of indebtedness" as payment on this obligation. (R. 455.) Counsel informed us at oral argument that the Department also seized Bryant's home. The State next charged Bryant with failure to pay the CSET. aclass D felony;'’ growing and cultivating more than 30 1144 Code Ann. § 6-7-3-11(a) (West Supp. 1994) provides: "A person may not deliver, possess or manufacture a controlled substance subject to the tax under this chapter unless the tax has been paid. A person wo fails or refuses to pay the tax imposed by this chapter is subject to a penalty of one hundred percent (100%) of the tax in addition to the tax." ‘ind. Code Ann. § 6-7-3-11(b) (West Supp. 1994) declares: “A person who knowingly oF intentionally delivers, possesses, or manufactures a controlled substance without having paid the 16 grams of marijuana, a class D felony;'* maintaining a common nuisance, a class D felony;’° and, possession of less than 30 grams of marijuana, a class A misdemeanor.“ In April 1993, Bryant was convicted on all four counts. The court sentenced him to two and a half years in prison on each of the four felony counts and one year for misdemeanor possession. His sentences were to run concurrently, with one year suspended to probation. Bryant subsequently appealed to the Indiana Court of Appeals. After briefing was completed, | transferred the case to tax due commits a Class D felony. This subsection does not apply to a person in violation of |C 35-48-4-11, if the violation is a misdemeanor." (The second sentence of this subsection | exempts first-time offenders involving no more than thirty grams of marijuana, or two grams of hash oil or hashish.) "ind. Code Ann. § 35-48-4-11(2) (West 1986). "Sind. Code Ann. § 35-48-4-13 (West Supp. 1994). ‘ind. Code Ann. § 35-48-4-11(1) (West 1986). 17 this Court pursuant to the authority granted me by Ind.Appeliate Rule 4(D). Bryant raises the following issues on appeal: 1. Whether the State violated the Double Jeopardy Clause by assessing both the CSET's civil and criminal sanctions against Bryant;’° a: Whether the trial court erroneously convicted Bryant for failure to pay the CSET based on evidence that he grew and cultivated marijuana; 3. Whether the trial court erred when it admitted evidence obtained in the search of Bryant's home; 4. Whether the trial court erred by admitting evidence of Bryant's prior convictions; and, ‘Bryant also alleges that the CSET violates the federal and state prohibitions against excessive fines and the state prohibition against imprisonment for a debt. U.S. Const. amend 8: Ind. Const. art. |, §§ 16, 22. Because we reverse Bryant's CSET conviction, we need not address these issues.. 18 5. Whether there was sufficient evidence to convict Bryant of possessing marijuana and maintaining a common nuisance. We hold the Department's assessment of the CSET against Bryant was a jeopardy. His criminal prosecution for failure to pay the CSET constituted a second jeopardy in violation of his double jeopardy rights under the United States Constitution as did his_criminal prosecutions for growing and possession marijuana. Accordingly, we vacate his conviction on that count."° We affirm his convictions on the three remaining counts. ll. The nd le r Bryant claims that because the State assessed the CSET and its 100 percent penalty for nonpayment against him and later convicted him of a felony for nonpayment, it violated his double jeopardy rights under the United States and Indiana ‘°Thus, we need not address the second claim listed above. 19 ee ———— ——— - - “pes. Constitutions.” U.S. Const. amend. V; IND. Const. art. I, § 14,"° The Double Jeopardy Clause 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. This clause is applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784 (1969). It protects a person from suffering (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction and (3) multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711 (1969). '7Bryant characterizes the tax and civil penalty for nonpayment as one punishment or jeopardy Accordingly, we consider these provisions in tandem. 'Sarticie |, § 14 provides: "No person shall be put in jeopardy twice for the same offense.” Bryant has presented no cogent argument with respect to his Indiana claim. He thus presents no viabie state constitutional basis for his appeal. St. John v. State (1988), Ind., 523 N.E.2d 1353, 1355 20 Jeopardy is, in its constitutional sense, a technical term which has traditionally applied only to criminal prosecutions. Browns v. Evans, 190 U.S. 180 (1983). Departing from this historical rule, however, the U.S. Supreme Court has held in recent years that particular forfeitures, civil fines and financial exactions can be "jeopardies." Montana Dep't of Revenue v. Kurth Ranch, 114 S.Ct. 1937 (1994); United States v. Halper, 490 U.S. 435 (1989). Cf. Austin v. United States, 113 S.Ct. 2801 (1993). In determining whether a jeopardy has occurred, the Court has said that the sanction's label of "criminal" or "civil" is not controlling. Halper, 490 U.S. at 447; see also United States v. Haywood, 864 F.Supp. 502, 506 (W.D.N.C. 1994) (description of sanction as "civil" does not foreclose possibility it is a jeopardy). Rather, the test is whether the civil sanctior constitutes a "punishment." Kurth Ranch, 114 S.Ct. at 1946. Vhen the sanction serves the goals of punishment rather than the remedial purposes of compensating the government for its loss, it is a "punishment" and thus a "jeopardy" within the 21 Double Jeopardy Clause. Id. The sanction's essence as 4 punishment can be identified “only by assessing the character of the actual sanctions imposed on the individual by the machinery of the state." Halper, 490 U.S. at 447. A. Is the CSET's Civil Sanction a Punishment? e LOE SUN Oath“ See The Supreme Court recently delineated the analysis for determining whether a tax is a punishment in Kurth Ranch, 114 S.Ct. 1937, a case bearing strong resemblance to the one before us. In Kurth, the Montana Department of Revenue sought to impose both criminal and tax penalties for the same possession of marijuana. in determining whether the tax was a "punishment" and thus a jeopardy under double jeopardy analysis, the Court examined four factors: the tax’s deterrent purpose (as opposed to revenue purpose), its high rate, its prerequisite of the commission of a crime before assessment, and the nature of the tax Ultimately, the Court found that when considered in tandem these factors revealed that the Montana 22 tax was a punishment and thus a second jeopardy imposed on the taxpayer in violation of the Double Jeopardy Clause. To apply the Kurth analysis, we examine first the purpose and rate of the CSET."® it is apparent that the CSET is aimed at least partly towards deterrence. One who pays the CSET receives a receipt that admonishes him that delivery, sale, possession or manufacture of a controlled substance is a crime. Ind. Code Ann. § 6-7-3-10(a) (West Supp. 1994). The "ind. Code Ann. § 6-7-3-13 (West Supp. 1994) Characterizes the initial assessment of the tax as a “jeopardy assessment." The Department claims the “jeopardy” label does not connote a “jeopardy” for double jeopardy purposes. Based on our conclusion that the CSET is a jeopardy, it is unnecessary to evaluate this delineation. Moreover, we will not address here whether the assessment of the tax itself was a jeopardy independent of the 100 percent penalty and criminal charge, as that issue was not raised on appeal. Rather, for today's purposes we consider the tax and civil penalty assessed by § 6-7-3-11(a) as one sanction. 23 taxpayer is required to show this receipt to officials to prove he has paid the tax, but the receipt is valid for only forty-eight hours. Ind. Code Ann. § 6-7-3-10(b) (West Supp. 1994). A taxpayer who possesses the same drug for over forty-eight hours must therefore repay the tax every forty-eight hours to continue to possess a valid receipt and thereby avoid the CSET's additional sanctions. Both the receipt's admonition and the limited period for which it is valid suggest a deterrent purpose. Second, just as the Kurth Court found the high rate of the Montana tax demonstrated its punitive character, we find the CSET's rate similarly revealing. The Montana tax was imposed at the rate of $100 per ounce, roughly eight times the market value of the marijuana taxed. Kurth Ranch, 114 S.Ct. at 1943. n.12. Indiana's CSET imposes a tax of $40.00 per gram, or $1,133.96 per ounce. This is a rate of over ninety times the 24 market value and more than eleven times the rate imposed in Kurth.” It indicates a punitive character. The third factor the Kurth Court found suggestive of the tax's punitive nature was the fact that it was conditioned on the commission of a crime and was exacted only after the possessor was arrested. The Court found these conditions “significant of [the tax’s] penal and prohibitory intent rather than the gathering of revenue." Kurth Ranch, 114 S.Ct. at 1947 (quoting United States v. Constantine, 296 U.S. 287, 295 (1935)). The CSET is similarly conditioned on the commission of a crime. It is imposed only on individuals who deliver, possess or manufacture controlled substances “in violation of *°The Kurth Court identified the market value of marijuana as $200 per pound, which equals $12.50 per ounce or $.44 per gram. Kurth Ranch, 114 S.Ct. at 1943, n.12. We use this same market value to compare the rate of the CSET with the street value of Bryant's marijuana. There is no contrary evidence in the record. 25 IC 35-48-4 or 21 U.S.C. 841 through 21 U.S.C. 852." Ind. Code Ann. § 6-7-3-5 (West Supp. 1994). Moreover, while the plain language of the statute does not limit the imposition of the CSET to a time after arrest, this is its effect. The law does say that a taxpayer owes the tax regardiess of whether she is arrested. The Department assesses the tax, however, only when police contact it to report an individual who is in custody for the delivery, possession or manufacture of a controlled substance. The resemblance between the two schemes seems more compelling than the difference. Finally, the Kurth Court found that because the Montana tax was characterized as a “property” tax but was assessed only after the controlled substance was confiscated, the tax possessed none of the indicia of "a species of a property tax” Kurth Ranch, 114 S.Ct. at 1948. Likewise, the CSET is so far removed from a normal excise tax that it must be classified as a punishment. An excise tax is one which is imposed upon the 26 performance of an act or the enjoyment of a privilege. Black's Law Dictionary 506 (Sth ed. 1979). As in Kurth, however, the Department routinely imposes the CSET only after a taxpayer's drugs have been confiscated. The taxpayer neither enjoys a privilege nor performs an act at the time of taxation. The CSET cannot therefore be classified as a normal excise tax.”" The CSET differs from a traditional excise tax in another respect. The rate of the tax so significantly outreaches that of other excise taxes in this state that its classification as a normal excise tax is impossible. No other Indiana excise tax imposes such a severe civil penalty for nonpayment. See. e.g., "Unless the Department independently finds and assesses drug possessors without police intervention, this will always be the case. Evidence at trial suggested that the Department does not conduct such independent investigations and it did not do so in Bryant's case. ind. Code Ann. § 6-7-1-24(a)(2) (West Supp. 1994) (failure to pay cigarette tax can result in fifty percent penalty). The CSET is not identical to the Kurth tax in every respect, but the factors outlined in Kurth do not create a bright line. After evaluating the CSET as a whole, like the Court in Kurth, we conclude that “this drug tax is a concoction of anomalies, too far-removed in crucial respects from a standard tax assessment to escape characterization as punishment for the purpose of Double Jeopardy analysis." Kurth Ranch, 114 S Ct. at 1948. Accordingly, the assessment of the CSET and its 100 percent penalty against Bryant was a punishment and thus a jeopardy. B Were the CSET's Civil and Criminal Sanctions Multiple Punishments for the Same Offense? Having concluded the CSET's civil sanction was a jeopardy, we must now determine whether the imposition of the CSETs civil and criminal penalties constituted multiple punishments for the same offense. Because the CSET 28 imposes its civil and criminal penalties in two separate proceedings, we are not required to address the permissibility of "multiple punishments" imposed in the same proceeding. See, e.g., Kurth Ranch, 114 S.Ct. at 1947, n. 21; cf. North Carolina v. Pearce, 395 U.S. 711, 717 (1969). Rather, we must address whether the CSET's criminal and civil punishments violate the double jeopardy prohibition against a second prosecution for the same offense after conviction or acquittal because it imposes separate sanctions in successive proceedings.~ In determining whether the two offenses are the same, we apply the test first announced in Blockburger v. United “Even though the tax proceeding against Bryant began at the same time as the criminal prosecution, this does not make it a single proceeding raising the issue of “multiple punishments" for the “same offense." As in Kurth, the fact that the two were pending contemporaneously is not determinative. Kurth Ranch, 114 S.Ct. at 1947, n. 21. 29 States, 284 U.S. 299 (1932), and recently revived in United States v. Dixon, 113 S.Ct. 2849 (1993). Where the same act or transaction constitutes a violation of two distinct statutory provisions, "the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact that the other does not. If each statute requires proof of an additional fact which the other does not,” the offenses are not the “same offense” for double jeopardy purposes. Blockburger, 284 U.S. at 304. For example, a state Five justices of the U.S. Supreme Court expanded the “same offense” analysis of Blockbuster in the 1990 decision of Grady v. Corbin, 495 U.S. 508 (1990). Grady established a second prong to the traditional Blockburger test under which courts were required to analyze whether the “conduct” underlying the offenses was the same, in which case a subsequent prosecution would be barred notwthstanding differences in the required elements This decision was overruled by United States v. Dixon, 113 S.Ct. 2849 (1993), 30 violates double jeopardy protection when it punishes a defendant for a greater offense and a "lesser included offense." That is, if the lesser included offense requires no proof beyond that required for the greater offense, the two are the "same offense" for purposes of the Double Jeopardy Clause.“ There are, however, similar offenses which do not violate the "same elements" test. Crimes which possess overlapping proof are when the Court reestablished the primacy of the traditional Blockburger analysis. **See, e.g., Brown v. Ohio, 432 U.S. 161, 167-68 (1977), mere the U.S. Supreme Court applied this "lesser included offense" analysis to the crimes of joyriding and auto theft. The Court concluded that a prosecutor who has established auto theft necessarily has established joyriding as well. Accordingly, they were the "same offense." The Court expanded this analysis in Harris v. Oklahoma, when it evaluated whether one offense was a species of a lesser-included offense of the other. Haris v. Oklahoma, 433 U.S. 682 (1977) (finding robbery a lesser-included offense when felony murder conviction required proof of robbery). not conclusively double jeopardies. The conduct proved may be "one and the same” so long as each offense possesses “an element not embraced in the other." Dixon, 113 S.Ct. at 2860 (quoting Gavieres v. United States, 220 U.S. 307, 345 (1911)). Employing the “same elements" analysis, we find that the CSET's civil and criminal sanctions are punishments for the same offense. Both punishments require that a person deliver, possess or manufacture a controlled substance without having paid the CSET to be subject to prosecution. The only distinction between the punishments is found in the criminal sanction imposed for nonpayment in subsection (b) of § 6-7-3- 11. This provision requires a mens rea of “knowingly or intentionally" for criminal conviction. The CSET's civil sanction requires no mens rea. However, its elements are identical to the criminal sanction's elements in all other respects. Because the civil penalty invoked by subsection (a) of the statute requires no elements other than those included in the criminal 32 penalty found in subsection (b), these subsections are two punishments for the same offense. _ Whi a The determination of when jeopardy attaches is the lynchpin for concluding which jeopardy is barred as a second jeopardy. Crist v. Bretz, 437 U.S. 28, 38 (1978). Consequently, we turn to the question of which CSET sanction was Bryant's first jeopardy and which was the second jeopardy prohibited by the Fifth Amendment. To resolve this question we must settle when jeopardy attaches in a civil proceeding. Of course, the U.S. Supreme Court has not considered this question since its decision just last year in Kurth. Thus, we write on largely a clean siate.** The Court has, however, enumerated factors and *5\n fact, only a few courts have addressed when jeopardy attaches in a civil proceeding. See, e.g., United States v. Sanchez-Escareno, 950 F.2d 193, 201 (Sth Cir. 1991) (until government attempts to collect or does collect civil fines, mere imposition of fines aoes not constitute punishment for double 33 policies underlying attachment which will help identify the point when jeopardy attached in this action. Although the Fifth Amendment declares that no person shall be twice put in jeopardy of life or limb, this constitutional prohibition is not against being twice punished, but is against twice being put in jeopardy. Abney v. United States, 431 U.S. 651 (1977). The Double Jeopardy Clause thus refers to the risk that a person will, for a second time, be convicted of the same offense. Id. The notion that "jeopardy" is “risk" is the very core of double jeopardy jurisprudence. Breed v. Jones, 421 U.S. 519 (1975). Where a risk of a determination of guilt exists, for example, jeopardy attaches. See, e.g., Serfass v. United States, 420 U.S. 377 (1975); see also Price v. Georgia, jeopardy purposes); United States v. Park, 947 F.2d 130 (Sth Cir. 1991) (jeopardy attaches when forfeiture proceeding begins); United States v. Torres, 28 F.3d 1463 (7th Cir. 1994) (holding jeopardy did not attach in drug forfeiture proceeding where defendant asserted no claim to seized drug money). 34 398 U.S. 323 (1970) (jeopardy is the risk of trial and conviction, not punishment). Tees cases are consonant with the well- known rule that jeopardy attaches when a jury has been impaneled and sworn. United States v. Martin Linen Supply Co., 430 U.S. 564 (1977). Using the point at which there is a risk of conviction as the moment when jeopardy attaches for Fifth Amendment purposes assures that a person is not forced to endure the personal strain, public embarrassment, and expense of a trial more than once for the same offense. The Double Jeopardy Clause achieves this result by effectively dictating that the government cannot make multiple attempts to convict an individual for an alleged offense, “thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." Benton v. Maryland, 395 U.S. 784, 796 (1969); see also Breed, 421 U.S. at 530. Accordingly, it is essential to 35 determine the time of attachment to protect promptly the accused's rights to finality of judgment, to minimization of exposure to the ordeals of trial and to continue with a chosen jury. Crist, 437 U.S. at 38; see also United States v. Jorn, 400 U.S. 470 (1971) (constitutional policy of finality inherent in Fifth Amendment). A court's conclusion that jeopardy attached at a specific point reflects its judgment that the constitutional policies underpinning the Double Jeopardy Clause are implicated at that stage of the proceeding. Jorn, 400 U.S. at 480. We conclude that jeopardy first attached when the Department served Bryant with its Record of Jeopardy Findings and Jeopardy Assessment Notice and Demand. At that moment, Bryant faced more than a risk of being found guilty; he had actually been found guilty. The assessment itself was a judgment against Bryant for the CSET and its 100 percent nonpayment penaity. This judgment enabled the Department to levy on Bryant's property immediately, and the Department 36 exercised that authority the day after it issued Bryant's jeopardy assessment. To hold jeopardy attached at any point later than assessment would give the Department latitude to subject the taxpayer to the ordeal of assessment and levy multiple times for the same offense.” That would be contrary to the constitutional policies underlying the Double Jeopardy Clause. The dissent suggests that finding jeopardy attached at assessment forecioses prosecution. This is correct so long as **The only other options for attachment are the time of actual collection or when a taxpayer appeals the assessment. Attachment cannot be said to occur on appeal or at collection because the taxpayer is inherently at risk of a determination of guilt and of losing his property from the moment of assessment. Furthermore, if we were to find it attached when a taxpayer appeals the assessment, the defendant would possess the luxury of choosing which jeopardy was his first; he would initate his appeal only where his tax liability was minor compared to his potential criminal penalty and would demand a speedy trial when his tax liability was significant compared to his potential criminal liability. 37 the State prosecutes the defendant after the Department assesses the CSET. We know from oral argument on this cause, however, that the Department does not conduct independent investigations, searching for drug offenders. Rather. it learns of an offense only when contacted by the police or prosecutor. This situation creates the opportunity for discussion between the Department and law enforcement authorities as to who will proceed first. Moreover, it seems plain enough for Fifth Amendment purposes that, from the citizen's point of view, it is irrelevant whether penalties imposed by one branch of the government foreclose penalties by another branch. In any event, if there is any problem of coordination between the Department and law enforcement authorities (and what we were told at oral argument suggests there is none), the General Assembly may simply amend the statute to require the Department and prosecutor to consult with one another about who should go first. 38 The CSET assessment was Bryant's first jeopardy. The moment the jury was sworn in his criminal trial for nonpayment of the CSET a second jeopardy attached. Crist, 437 U.S. at 38. Accordingly, the Double Jeopardy Clause barred Bryant's criminal prosecution for nonpayment. We vacate the conviction for failure to pay the CSET. Moreover, having concluded the CSET is a jeopardy, Bryant's convictions for growing more than 30 grams of marijuana and possessing less than 30 grams of marijuana were also subsequent jeopardies barred by the Double Jeopardy Clause. As we explain today in Clifft v. Indiana Dep't of State Revenue (1995) Ind, __— N.E.2d ___, subsequent prosecutions under the criminal law for the same drug offenses twice places a defendant in jeopardy. We therefore vacate Bryant's criminal convictions. - lil. The a : This case presents another novel issue unrelated to the CSET and double jeopardy. Bryant contends the trial court i 39 committed reversible error when it admitted evidence obtained in the police search of his home, saying it was illegally obtained in violation of the Fourth Amendment to the U.S. Constitution.” The State contends that exigent circumstances justified the warrantless search because officers reasonably believed a person inside Bryant's home may have been in need of aid and because the deputies possessed probable cause to believe a burglary was in progress. The Fourth Amendment provides each person the right to be secure in his or her person, houses, papers and effects against unreasonable searches and seizures. U.S. CONST amend. 4.: IND. Const. art. |, § 11. Generally, a search or 27Police did not possess a warrant for the initial search of the home, but they obtained one before the second search, during which they seized the marijuana and drug effects Bryant aiso contends that admission of this evidence violated Articie |, § 11 of the indiana Constitution, but does not present any cogent argument conceming this claim. Accordingly, the claim is waived. St. John, 523 N.E.2d at 1355 40 seizure may only be conducted pursuant to a lawful warrant. Arkansas v. Sanders, 442 U.S. 753 (1979); Taylor v. State (1992), Ind., 587 N.E.2d 1293. The cardinal principle in search and seizure jurisprudence therefore is that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable .. . - subject only to a few specifically established and well-delineated exceptions.” Fair v. State (1993), Ind., 627 N.E.2d 427, 430 (quoting Mincey v. Arizona, 437 U.S. 385, 390 (1978)). Exigent circumstances compelling quick action before a warrant can be obtained are recognized as such an exception. Michigan v. Tyler, 436 U.S. 499 (1978) (building on fire). The State bears the burden of proving the existence of exigent circumstances sufficient to justify the lack of formalities. Coolidge v. New Hampshire, 403 U.S. 443 (1971). The State initially argues that its warrantless search was justified because a person inside Bryant's home may have been in need of aid. The U.S. Supreme Court and this Court have 41 recognized a limited exception to the warrant requirement where an officer reasonably believes such circumstances exist. Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294 (1967); Tata v. State (1986), Ind., 486 N.E.2d 1026. In cases employing this exception, however, police possessed objective evidence that a violent crime had or was about to occur. Hayden, 387 U.S. 294; Tata, 486 N.E.2d at 1028. There was no such evidence in this case. Officers did not find any evidence outside the home and did not hear any sound from the home which could reasonably lead them to conclude a person inside was in need of aid.” The warrantless search of Bryant's home cannot be justified on these grounds. Until today, this Court had not considered the State's second argument: that police may enter a home when they reasonably believe a burglary may be in progress or has 28yWhen police arrived at Bryant's home, no one told them that a violent crime against a person had occurred or was imminent. Cf. Tata, 486 N.E.2d at 1028. 42 recently been committed. Numerous state and federal courts, however, agree that these are exigent circumstances excusing warrantless entry. See, e.g., Reardon v. Wroan, 811 F.2d 1025 (7th Cir. 1987); State ex rel. Zander v. District Court, 591 P.2d 656 (Mont. 1979) (warrantless entry necessary to protect property and determine whether suspect was hiding inside where police believed burglary was in progress); United States v. Salva, 978 F.2d 320 (7th Cir. 1992). Our own Court of Appeals has also recognized this exception. B.P.O.E. #576, Elks Club v. State (1980), Ind.App., 413 N.E.2d 660. These courts and other authorities generally agree that such an entry and search does not offend the Fourth Amendment because the emergency circumstances surrounding a potential burglary justify the action. See 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 6.6(b), at 706-707 (2d ed. 1987). We agree that police may enter private property to protect that 43 property when they reasonably believe the premises have recently been or are being burglarized. Of course, any search conducted because police reasonably believe a burglary is in progress or has just occurred is limited to areas in which an intruder could reasonably conceal himself. Officers may not use the situation as an excuse to conduct a general search for evidence. State v. Crabtree, 655 S.W.2d 173 (Tenn.Crim.App. 1983). A search beyond the exigencies presented would violate the Fourth Amendment. In Bryant's case, Grant County Sheriffs deputies entered the home after receiving an emergency call from a neighbor who reported that a home alarm was sounding. VVhen deputies arrived at the scene, they observed fresh pry marks on an open door. They entered the house and conducted a protective sweep of the residences. The totality of these circumstances reveals that exigent circumstances justified the search. The sounding alarm, fresh 44 pry marks and open door led police to a reasonable belief that a burglary was in progress or had recently occurred. The Officers searched no more area than was reasonably necessary, but still discovered hundreds of marijuana plants in plain view. Admission of evidence found during the search was therefore not error. IV. Admissibility of nt's Prior ictions During Bryant's trial, the State cross-examined him | regarding his convictions for robbery and armed burglary thirty- five and forty years prior to his arrest. Bryant contends these convictions were too remote to be admissible. The trial court has considerable latitude in admitting or rejecting evidence. Error in admitting evidence is not a basis for setting aside a conviction unless the erroneous admission was inconsistent with © substantial justice or affects the — substantial rights of the parties. Ind.Trial Rule 61; Fleener v. State (1995), Ind., 656 N.E.2d 1140. 45 Under our common law evidentiary rules,” a prior criminal conviction may be used for impeachment if it involved dishonesty or false statement or constituted what is commonly referred to as an “infamous crime" which would have rendered the witness incompetent to testify. Ashton v. Anderson (1972), 258 Ind. 51, 279 N.E.2d 210, 217. Bryant's convictions for robbery and burglary fall squarely within the Ashton “infamous crimes" which the trial court could rightfully admit for impeachment purposes. A question regarding the lapse of time between the conviction and the testimony to be impeached does not affect the admissibility of the conviction. Robinson v. State (1983), 446 N.E.2d 1287. Rather, the lapse of time from We adopted the Indiana Rules of Evidence on January 1, 1994. Because Srveite offense senate in 1992, we will not evaluate his claim under Indiana Rule of Evidence 609 which bars the use of a prior conviction for impeachment purposes if the conviction is more than ten years old. Instead, we evaluate it under common law evidentiary principles. 46 the defendant's prior conviction is a matter for the jury to weigh in assessing the weight of the evidence and the credibility of the witness. Id. The trial court properly admitted evidence of Bryant's prior convictions. V._ Sufficiency of the Evidence We do not reweigh the evidence or judge the credibility of the witnesses when considering a sufficiency question on appeal. Alfaro v. State (1985), Ind., 478 N.E.2d 670. These are matters exclusively within the province of the jury. Rather, we consider the evidence most favorable to the verdict, along with any reasonable inferences therefrom, to determine whether a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Moore v. State (1987), Ind., 515 N.E.2d 1099. We affirm if each element of the crime is supported by substantial evidence. Loyd v. State (1980), 272 Ind. 404, 398 N.E.2d 1260, cert. denied, 449 U.S. 881. Bryant challenges his misdemeanor conviction for possession of marijuana, claiming he was not in exclusive possession of the property in which officers found two bags of dried marijuana and over 300 marijuana plants. We need not address this issue based on our conclusion that the conviction was a second jeopardy barred by the Double Jeopardy Clause. We note, nonetheless, that Bryant owned the home in which the marijuana was found and confessed to police that the marijuana was his. Various other drug paraphernalia found in Bryant's home compounded the evidence of his guilt. We conclude there was no evidence which could reasonably lead the court to believe someone other than Bryant possessed the drugs.”° There was sufficient evidence to support Bryant's conviction. %at trial, Bryant claimed a former girlfriend had access to the home and that she could have been growing and using the marijuana. Based on the lack of substantive evidence of this 48 Bryant also challenges his conviction for maintaining a common nuisance, contending the State failed to prove he committed a continuous or recurring violation sufficient to constitute the "maintenance" of a common nuisance. The Code required the State to prove Bryant knowingly or intentionally maintained a building that was used for unlawtully keeping, offering for sale, selling or delivering a controlled substance described in § 35-48-4-8.5 to convict him of maintaining a common nuisance. Ind. Code Ann. § 35-48-4-13(b)(2) (West Supp. 1994). We have not previously addressed whether § 35- 48-4-13 requires the State to prove continuous or recurring possession. VVe did conciude, however, that continuous or recurring possession was an element under 2 former statute on the grounds that the "maintains" or “maintaining” language of the act implicitly required proof of a continuing or recurring violation. Keeth v. State (1923), 193 Ind. 549, 550, 139 N.E. use or possession, we find, as did the trial court, that this contention has no merit. 49 589, 590.°’ Because § 35-48-4-13(b) contains this same language in its body and title, we hold the State must have proven Bryant's recurring or continuous violation. At trial, the State presented evidence which proved Bryant possessed substantial amounts of marijuana, a complex growing system and a variety of drug paraphernalia employed to cultivate, preserve and use marijuana in his home. When coupled with Bryant's confession that he was growing the marijuana for his own use, this evidence was sufficient to prove continuing possession of a common nuisance. Vi. Conclusion For the foregoing reasons, we vacate Bryant's convictions for failure to pay the CSET, growing and cultivating *'The Indiana Court of Appeals reached the same conclusion under our current statute. Plowman v. State (1992), Ind.App., 604 N.E.2d 1219 (evidence of isolated or casual occurrence insufficient to sustain conviction for maintaining common nuisance). 50 marijuana and misdemeanor possession. We affirm his conviction for maintaining a common nuisance. Dickson and Selby, JJ., concur. DeBruler, J., concurs and dissents with separate opinion tc follow. Sullivan, J., dissents with separate opinion. SULLIVAN, Justice, dissenting. In Department of Revenue of Montana v. Kurth Ranch. 114 S.Ct. 1937 (1994), the United States Supreme Court held that a proceeding initiated by the state of Montana to collect a tax on the Kurth family's marijuana crop was prohibited by the Double Jeopardy Clause where the Kurths had already been convicted in criminal court for possession of those drugs. Today our court holds that the mere assessment of a similar ta by the Indiana Department of State Revenue prior to trial for a related drug possession or dealing offense cuts off the ability o' county prosecutors to obtain drug convictions and courts tc 51 impose sentences. | believe the majority today extends the protection of the Double Jeopardy Clause further than the United States Supreme Court requires.* While | do not agree in all the particulars, | do agree that the Indiana CSET bears enough resemblance to the Montana dangerous drug tax at issue in Kurth Ranch to implicate the Double Jeopardy Clause. While the courts of several other states have found their drug tax statutes sufficiently distinct "1 AJn increasingly popular tactic of those criminally charged wth violating state and federal drug laws and correlatively subjected to forfeiture proceedings is to concede in the forfeiture proceedings at the earliest opportunity and, thereafter, seek to avoid criminal sanctions by moving to dismiss pending criminal charges on double jeopardy grounds." People vy. Hellis, 211 Mich.App. 634, 536 N.VW.2d 587, 592 (1995). The majority opinion goes further by proscribing criminal sanctions once drug tax administrative proceedings are initiated; the accused need not concede anything to avoid prosecution. 52 from the Montana tax to withstand scrutiny under Kurth Ranch, e.g. State v. Gulledge, 896 P.2d 378 (Kan. 1995); State v. Lange, 531 N.W.2d 108 (lowa 1995); Milner v. State, 658 So.2d 500 (Ala.Civ.App. 1994); | find the majority's analysis persuasive that the CSET has punitive characteristics that subject it to the constraints of the Double Jeopardy Clause. Kurth Ranch, 114 S.Ct. at 1945. Accord, Stennett v. State, 905 S.W.2d 612 (Tex.Ct.App. 1995). il Concluding that the Indiana CSET is sufficiently similar to the Montana dangerous drug tax to subject it to the constraints of the Double Jeopardy Clause does not mean, however, that this is the same case as Kurth Ranch. Indeed, this case is different from Kurth Ranch in at least one very important way - in Kurth Ranch, the taxpayer had first been convicted of the underlying drug offense and sought to avoid the subsequent imposition of the drug tax on double jeopardy grounds; here the taxpayer has first been assessed the drug 53 a tax and seeks to avoid punishment for the underlying drug offense on double jeopardy grounds The majority contends that the order in which the state seeks to impose the criminal and tax punishments makes ro difference - that the tax carn be either a first or a second punishment, but in either case it is considered punishment for double jeopardy purposes. There is certainly authority for this position.’ But | think we should tread cautiously in this area First, the Montana tax could be imposed only after a criminal Skurth Ranch, 114 S.Ct. at 1958 (Scalia, J., dissenting) United States v. $405,089, 23, 33 F 3d 1210 (9th Cir 1994) amended by order, 56 F.3d 41 (1995) United States y. Sanchez-Escareno, 950 F 2d 193 203 (61h Cir 1001) F Anthony Paganelli, "Constitutional Anulyaie of Indiana's Controlled Substance Excise Tax" 70 ind Ld 1901 10904 n.217 (1995). But see United Slates $400,009.29, 0 F da a 41 (opinion of Ryner, J., dissenting from denial of rehearing an banc, joined by six other judges), United States y Newny |! F 3d 1143, 1145 (3d Cir. 1999) 54 conviction and the Kurth Ranch majority expressly noted that it was not faced with "the question whether an ostensibly civil proceeding that is designed to inflict punishment may bar a subs equent proceeding that is admittedly criminal in character.” Kurth Ranch, 114 G.Ct at 1947.21, Second, the Supreme Court seems to emphasize the sequence in Kurth Ranch, several times making explicit reference to the fact that the imposition of the tax followed the imposition of the criminal sanction.” Third, as Justice DeBruler points out, the effect of “The Supreme Court's emphasis on the tax punishment constituting the second punishment is seen in the following passages This Case presents the question whether 4 tax on the possession of legal drugs assessed afier the State has imposed @ criminal penalty for ihe same conduct may violate ihe CONnsIIUiOnal prohibilion against successive punishinents for the same offense Kurth Ranch, 114 S.Ct, at 1941 (footnote omitted) (emphasis supplied), The third proceeding involved the assessment of ihe new lax on dangerous drugs id, at 1942 (ernphasis supplied) (the first proceeding was the criminal prosecution ard the second was a civil forfeiture action). This drug tax is not the kind of remedial sanction that may follow the first punishment of a criminal offense. Instead it is a second punishment within the contemplation of [the Double Jeopardy Clause] and therefore must be imposed during the first prosecution or not at all, id, at 1046 (emphasis supplied), While | acknowledge that this last sertence lends support to the majority's view that the drug lax Can constitute a first punishment, it did net in Kurth Maneh and, for ihe reasons discussed in the text of my dissent, | do not think it prudent to extend this principle in the absence of the Supreme Court explicitly so holding. 56 holding that the tax can constitute a first punishment for double jeopardy purposes is to interdict @ "power of the highest essential order,” namely the power of the state to prosecute criminal behavior, In the absence of clear Mandate from the Supreme Court, | think it highly inadvisable for us to hold that an administrative assessment of @ tax Can constitute a first punishment for double jeopardy purposes.” i **Several altematives are available. First, we could hold that the tax becomes a first punishment only when ordered by a court, L.e., only when the taxpayer has exercised his or her right to protest the assessment in court or the department of revenue has obtained judicial assistance in enforcing it. Second, we could hold that sentencing on the underlying criminal offense extinguishes any previously established CSET liability Pither of these approaches would bé 6orisistent with ine outcome of Kurth Rangh and would not interfére with the power of our prosecutors to seek to bring 4fUG POSsessors and dealers to justice. 57 The majority takes the position that Kurth Ranch requires that when a civil or administrative proceeding or sanction has the punitive characteristics that subject it to the constraints of the Double Jeopardy Clause, the established principles of Double Jeopardy jurisprudence apply regardiess of whether the criminal prosecution and sentencing or the civil or administrative proceeding and sanction come first. Even ff | agreed with the majority that Kurth Ranch prevents the state from prosecuting drug offenders if CSET has already been imposed - and | do not; see part Il, supra - | can not agree with the way the majority seeks to implement this principle. The majority says that jeopardy attaches when the revenue department issues its assessment notice and demand. This cannot be right - the mere issuance of an administrative order cannot be sufficient to shut down completely the state's ability to prosecute drug offenders. 58 The Double Jeopardy Clause is violated by (i) a second prosecution for the same offense after acquittal or conviction (which | will refer to as “prosecution jeopardy”), or (ii) multiple punishments for the same offense (which | will refer to as "punishment jeopardy"). North Carolina v. Pearce, 395 U.S. 711, 717 (1969). And the factual patterns in this and the other *in United States v. Dixon, 113 S.Ct. 2849 (1993), Justice Scalia, witing for the majority, takes issue wth Justice Souter who, in dissent, distinguishes between what | refer to as prosecution jeopardy and punishment jeopardy. Justice Scalia writes that “there is no authority, except Grady [v. Corbin, 495 U.S. 508 (1990)], for the proposition that [double jeopardy] has different meanings in the two contexts." Dixon, 113 S.Ct. at 2860. Dixon overruled Grady. However, the Scalia-Souter debate addressed substantive principles of double jeopardy law. | distinguish between prosecution jeopardy and punishment jeopardy only for what | think are obvious procedural differences in when jeopardy in respect of a prosecution attaches and when jeopardy in respect of punishment attaches. cases before the court today generally involve three types of state actions: (i) a criminal prosecution for a drug possession or dealing offense; (ii) a criminal prosecution for the failure to pay the CSET; and (iii) an administrative (non-criminal) action to collect CSET due. Prosecution jeopardy arises or attaches in the first two types of actions at the time the jury is sworn or, in an action tried to the bench, at the time the fact finder begins to take evidence. Crist v. Bretz, 437 U.S. 28, 35 (1978) (jury trial); Serfass v. United States, 420 U.S. 377, 388 (1975) (bench trial); Maddox v. State (1952), 230 Ind. 92, 98, 102 N.E.2d 225, 228 (jury trial); State v. Proctor (1984), Ind.App., 471 N.E.2d 707, 708 (bench trial). See generally Joseph G. Cook, 3 Constitutional Rights of the Accused 2d §§ 23:17-23:25 (1986 & Supp. 1995). The cases are not so clear as to precisely when punishment jeopardy attaches but | have found no authority for holding that it attaches before an offender has commenced to serve a valid sentence. See generally United States v. DiFrancesco, 449 U.S. 117, 134 (1980); Coleman v. 60 State (1986), Ind., 490 N.E.2d 711, 715; Williams v. State (1986), Ind.App., 494 N.E.2d 1001, 1004, cert. denied 481 U.S. 1054 (1987); Arthur W. Campbell, ntenci d §§8:14-8:17 (1991 & Supp. 1994). But because the concept of administrative or civil sanctions in general, and a tax in particular, constituting jeopardy is so new to the law,” there is little guidance as to when prosecution jeopardy or punishment jeopardy attach in such context. Indeed, the majority's analysis on this point is quite abbreviated.” Yet if we are to hold that at the moment of *’The United States Supreme Court held for the first time that civil fines, forfeiture, and financial exactions styled as a tax can be penalties for crime in 1989, 1993, and 1994, respectively. Montana Dep't of Rev. v. Kurth Ranch, 114 S.Ct. 1937 (1994) (tax); Austin v. United States, 113 S.Ct. 2801 (1993) (forfeiture); United States v. Halper, 490 U.S. 435 (1989) (civil fines). *The majority's only analysis on this point is that, at the point the department of revenue served the taxpayer with an 61 Psu - ae OS. ° attachment, the state is interdicted from pursuing a criminal prosecution, ascertaining that moment of attachment becomes a vital inquiry. | think we start with the basic principles that the mere filing of charges or conduct of pre-trial proceedings are not enough to implicate prosecution jeopardy and that the mere assessment notice and demand, "Bryant faced more than a risk of being found guilty; he had actually been found guilty." The majority offers no authority for this proposition and | reject it. It seems to me tantamount to saying that when a prosecutor files Criminal charges, a criminal defendant has actually been found guilty. In both instances, the assessment and filing of charges merely represents the first step in a statutorily-prescribed regime. That the department is authorized to seize the taxpayer's property immediately does not change the analysis for me. | discuss this issue in greater detail in part |II-C-2, infra. And to continue my analogy to criminal procedure, the State is also entitled to impose substantial infringements on the criminally accused's liberty and property following the filing of criminal charges. 62 pronouncement of sentence is not enough to implicate punishment jeopardy. As noted above, prosecution jeopardy does not attach, in a jury trial, until the jury is sworn, and, in a bench trial, until the fact finder begins to take evidence. | would analogize the administrative procedure for enforcing the CSET to the criminal bench trial and would find the imposition of the CSET to constitute a prosecution jeopardy at the point, but not before, the taxpayer exercises his or her rights to appeal an assessment, a hearing has been convened, and the fact finder has begun to take testimony. Similarly, | would not find the imposition of the CSET to constitute a punishment jeopardy unless and until the taxpayer has begun to pay the assessment.” **| make this point because there wil be cases mere the taxpayer will not contest the assessment. See part Ill-C-1, infra. 63 2 Leen Indiana Code §6-7-3-13 (1993) provides that the Department of Revenue shall proceed to assess and collect CSET due under Ind.Code §6-8.1-5-3 (1993). Under 45 Ind.Admin.Code §15-5-8 (1992), the taxpayer may protest the assessment within a prescribed period of time and request a hearing. lf a hearing is requested, the department is required to follow the hearing procedures specified in 45 Ind. Admin.Code §15-5-3. In contrast to the majority which holds that prosecution jeopardy attaches at the time the department makes its initial assessment, | would hold that no attachment occurs until the hearing or alternative procedures contemplated by 45 Ind. Admin.Code §15-5-3 are convened and the fact finder has begun to take evidence. The recent Colorado case of People v. Litchfield, 902 P.2d 921 (Colo.CtApp. 1995), cert. granted (Colo. Sep. 11, 1995), takes a similar approach to what | propose. Subsequent to defendants’ arrests but prior to trial, the Colorado revenue department assessed defendants with controlled substances 64 taxes and penalties. Defendants objected to the assessment and requested an administrative hearing. At the time of trial, the department had taken no action on the objections. Defendants moved to dismiss the criminal charges on grounds that the tax assessment was punishment and the double jeopardy clauses prevented their being subjected to criminal punishment for the same conduct. Id. at 924. Although the majority today would grant such motions, the trial court in Litchfield found that jeopardy had not yet attached to the assessment because there had been "no final administrative determination of defendants’ obligation to pay the tax and penalty.” Id. The Colorado appellate court agreed. Assuming that the tax was punishment under Kurth Ranch, the court pointed out that: [T}here has been no hearing and thus no final determination of defendants’ liability for the assessed tax in addition, defendants have not paid any money to tne state nor has the state taken any steps to collect the tax obligation allegedly owed. 65 Accordingly, jeopardy has not yet attached and there has been no punishment by imposition of liability for the state tax See US. v. Sanchez-Escareno, 950 F.2d 193 (5th Cir.1991) cert. denied, — U.S. —, 113 S.Ct 123, 121 L.Ed2d 78 (1992) (no jeopardy attaches to preclude the government from prosecuting defendants for drug importation offenses until defendants actually pay civil fines assessed against them or until the government sues to collect on notes executed by defendants for payment of such fines). Because defendants had not been subjected to punishment by imposition of a civil penalty for their alleged possession of marijuana, the trial court did not err when it found that the criminal prosecution did not subject them to multiple punishment in violation of the double jeopardy clauses. id. at 925. Note that the Colorado court finds no jeopardy attaching at least until a final determination of liability is made,“ “in fact, the Colorado court suggests that jeopardy might not attach until the defendants actually paid money to the state or the state had taken steps to collect the tax obligation. Litchfield, 902 P.2d at 924. Cf. Ragin v. United States, 893 F Supp. 570, 574 (W.D.N.C. 1995) (holding in forfeiture proceeding accompanying drug prosecution that "jeopardy 66 an even broader construction of attachment than | propose. | think attachment at the time the fact finder begins to receive evidence is a slightly better approach because it more closely tracks its criminal procedure analog.“ C attaches when the final judgment of forfeiture is entered, and not when the claim or answer is filed or the property seized.") “Additional support for this approach is found in the following hypothetical offered by Judge Easterbrook in an influential administrative forfeiture case: Suppose the civil forfeiture gets to tral first. The United States wil try to show that the money was used in an illegal drug transaction. At the beginning of the hearing, when evidence is first presented to the trier of fact in a proceeding seeking to impose a penalty for cnme, jeopardy attaches. United States v. Torres, 28 F.3d 1463, 1465 (7th Cir.. 1994) (citations omitted). 67 The assessment &/ CSET raises two additional issues First, what are the double jeopardy implications, if any, if the CSET is not contested? And, second, what are the double jeopardy implications if the revenue department, proceeding as permitted under the statute and regulation, seizes, or levies on and sells, the taxpayer's property? C-1 In cases where the taxpayer does not contest the assessment, | would find no prosecution jeopardy as nothing analogous to prosecution has occurred.“ However, under “See United States v. Baird, 63 F.3d 1213 (3d Cir. 1995) where defendant Baird contended that a drug prosecution subsequent to an uncontested administrative forfeiture proceeding arising from the same incident subjected him to double jeopardy, the court observed that "[wiithout nsk of a determination of guilt, jeopardy does not attach Because Baird failed to contest the forfeiture, Baird was not, and could not have been, placed at nsk by that process." See also United States v. Morgan, 51 F.3d 1105 (2d Cir. 1995), where 68 Kurth Ranch, | believe that CSET's punitive characteristics that implicate the Double Jeopardy Clause would cause punishment jeopardy to attach at the point the taxpayer began to pay the tax. Perhaps the case best illustrating this situation is United States v. Sanchez-Escareno, 950 F.2d 193 (5th Cir.1991) cert. denied, 113 S.Ct. 123 (1992), cited by the Colorado court in People _v. Litchfield, supra. In Sanchez-Escareno, three individuals had been arrested and assessed large civil fines by United States Customs officials for possession and attempted in,2ortation of marijuana. Criminal indictments based on the defendant Morgan contended that a bank fraud prosecution subsequent to his settlement of civil proceedings brought by the United States Department of Treasury's Office of Thrift Supervision subjected him to double jeopardy, the court noted that “Morgan cannot claim prosecution for the same offense arising after an acquittal or conviction because the initial civil proceeding did not result in either." Contra, United States v. Ursery, 59 F.3d 568, 571 (6th Cir. 1995). 69 same conduct followed, The defendants did not protest the civil fines but instead acknowledged them by executing promissory notes. However, the notes had not been paid nor had the government attempted to collect the notes. The district court dismissed the indictments, concluding that punishment jeopardy attached at the point the defendants executed the promissory notes. Sanchez-Escareno, 950 F.2d at 194-95. The Fifth Circuit reversed, reasoning as follows: Here, the government has yet to subject the defendants to trial at all or to exact any form of punishment whatsoever. Defendants are presently in the same position as someone who has been charged in two criminal proceedings, but has not yet been tried or punished in either. If the defendants actually pay the civil fines, then any subsequent criminal prosecution would be double jeopardy. See Ex parte Lange, 18 Wall. 163, 85 U.S. 163, 21 Led. 872 (1873) (when defendant "fully suffered one of the alternative punishments to which alone the law subjected him, the power of the court to punish further was gone"). Likewise, if the government chooses to go forward with its prosecution of the defendants, jeopardy would attach when the jury is empaneled and sworn, as it would in any criminal case. See Serfass v. United States, 420 US. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975). Finally, i the government attempts to 70 collect on the notes, jeopardy would attach when the court begins to hear evidence in that action. See id, But at this point, defendants’ contentions under the Double Jeopardy Clause are misplaced. Sanchez-Escareno, 950 F.2d at 202-203. C-2 indiana statutes and regulations provide that if the CSET is not immediately paid, the department "may levy on and sell the person's property." Ind.Code §6-8.1-5-3 (1993); 45 Ind.Admin.Code §15-5-8. If the department exercises this option, does punishment jeopardy attach? In People v. Krizek, 271 IIL App.3d 533, 648 N.E.2d 313 (1995), defendant appealed the trial court's denial of his motion to dismiss drug charges on grounds that the prior seizure of his home to commence civil forfeiture proceedings constituted punishment jeopardy. The Illinois court analyzed federal court decisions from Oregon and Mlinois that concluded that the seizure of a defendant's property does not, by itself, constitute punishment for purposes of the double jeopardy clause: 71 [A]ithough the seizure of real property under the Forfeiture Act marks the beginning of the civil forfeiture process, the actual seizure itself has limited legal significance. The act of seizure neither extinguishes the ownership rights of Claimants to the property, nor does it vest title in the State. The respective ownership rights of the parties remain unaltered until such time as the trial court enters its final judgment. Until final judgment is entered, the claimant has the opportunity to retain his ownership rights in the property. Common sense dictates that it is the deprivation of ownership, not the deprivation of the unencumbered use of the property, that determines when punishment for double jeopardy purposes occurs. The State's seizure of defendant's property, therefore, does not constitute punishment for double jeopardy purposes (see (United States v.] Stanwood, 872 F.SUPP. [791,] 799 [(D.Or. 1994)]; nited States v.] Messino, 871 F.SUPP. [1027,] 1032 [(N.D.Ill. 1994)]), and the State's attempt to prosecute defendant under the Illinois Criminal Code does not contravene the double jeopardy clause. Krizek, 271 lllApp. at 538, 648 N.E.2d at 316. | think this reasoning is sound and would find that the seizure of a taxpayer's property by the revenue department does not constitute punishment. However, the sale of that property is a more difficult question, one which should properly await a specific case in which the issue is argued. C-3 Lest we become so consumed in thinking about drug taxes as punishment that we forget the gerieral rule, it is worth recalling that the general rule is that a tax is not punishment and only becomes so when, "“[t]aken as a whole,” it is “too far- removed in crucial respects from a standard tax assessment to escape characterization as punishment." Kurth Ranch, 114 S.Ct. at 1948. | mention this in the context of the two preceding sections because it is altogether plausible to me that a taxpayer may pay a portion of CSET assessed, or the revenue department may levy upon and sell an amount of property, which would merely reimburse the government for its actual costs arising from the taxpayer's criminal conduct. See id. at 1945 (quoting United States v. Halper, 490 U.S. 435, 449-450 (1989)). Such a payment or levy and sale would not be sufficient in my view to constitute punishment jeopardy. Only to 73 the extent that the amount paid or levied upon and sold in excess of that deemed reasonably remedial should be considered to be punishment. Cf. United States v. Morgan, 51 F.3d 1105 (2d Cir. 1995), cert. denied 116 S.Ct. 171 (1995) (double jeopardy not implicated in Office of Thrift Supervision accompanying bank fraud prosecution where defendant did not make threshold showing that civil sanction was “overmelimingly disproportionate to the government's damages and expenses’); Ragin v. United States, 893 F.SUPP. 570 (double jeopardy not implicated in civil forfeiture proceeding accompanying drug prosecution where "the forfeiture was proportional to the damages caused by Ragin's conduct, and the forfeiture was essentially remedial"). D If the majority is right that administrative imposition of a tax which is a punishment for double jeopardy purposes can cut off the state's ability to prosecute and sentence, then | think at a minimum the notion that jeopardy attaches at the time of 74 assessment should be abandoned. Rather, | think analogies to the criminal procedure and the newly emerging precedents in the area of civil fines, forfeitures, and taxes indicate the following: First, a first prosecution should not attach until the accused contests the assessment and evidence is taken at an administrative hearing. At this point, the ability of the state to prosecute for the underlying criminal offense would be cut off. Second, if the accused does not contest the assessment such that no adjudicatory proceedings are commenced, there is no prosecution jeopardy and the state is free to proceed with criminal prosecution. Third, if the accused pays a portion of the assessment in a sufficient amount to constitute punishment,” punishment jeopardy attaches and the ability of the state to sentence for the underlying criminal offense would be cut off. Or, arguably, such an amount of property is levied upon and sold, depriving the accused of his or her ownership thereof. See part lll-C-2, supra. 75 Conclusion | agree with the majority that the Indiana CSET has punitive characteristics that subject it to the constraints of the Double Jeopardy Clause. See part|, infra. But | find nothing in Kurth Ranch that compels us to prohibit the prosecution of alleged drug offenders merely because the revenue department asserts a CSET obligation on the part of the alleged offender first. See part Il, infra. Assuming the established principles of Double Jeopardy jurisprudence apply regardiess of whether the criminal prosecution and sentencing or the imposition of CSET comes first, | would hold that (i) there is no prosecution jeopardy unless the taxpayer contests the assessment and a hearing is convened to adjudicate the protest, Litchfield, 902 P.2d at 925: prosecution jeopardy attaches when evidence is first presented to the trier of fact, Torres, 28 F.3d at 1465; and (ii) there is no punishment jeopardy unless the taxpayer pays at least a 76 portion of the tax, Sanchez-Escareno, 950 F.2d at 202. See part lil, infra. Certainly, there is nothing in Kurth Ranch that is inconsistent with this approach. In that case, Montana's tax authorities assessed the dangerous drug tax and the taxpayers contested the assessments in administrative proceedings. Kurth Ranch, 114 S.Ct. 1942-43. Thus more happened in Kurth Ranch than the mere initiation of a drug tax assessment proceedings — the taxpayers actually contested the assessment in administrative proceedings. Based on the foregoing analysis, | would affirm Bryant's convictions. No claim is made that Bryant contested the assessment such that an adjudication of liability was conducted. As such, no prosecution jeopardy attached and the state was free to prosecute him on the criminal charges. Nor is any claim made that Bryant voluntarily paid a sufficient amount of the tax to constitute punishment.“ As such, no punishment “Bryant may be able to establish that the seizure of his property following assessment constituted a change in 77 Pe ee ee eS ee Pe ee Oe ey Be es he ks | ee ees at - | : y ‘ , jeopardy attached and the state was free to punish him on the criminal charges. | agree with the majority's analysis of the non-CSET issues in Bryant's appeal. DeBRULER, Justice, concurring and dissenting. In U.S. v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989) and Montana v. Kurth Ranch, __ U.S. _, 114 §.Ct. 1937, 128 L.Ed.2d 767 (1994), the complaints had already been punished as a result of a prior criminal prosecution when the governments exercised their taxing and sanctioning authority. The Supreme Court ruled in both cases that the exercise of that authority could constitute a second punishment in violation of double jeorardy. Here, by contrast, the state exercised its taxing and sanctioning authority before appellant Bryant was placed in jeopardy in court. The manner in which that taxing and sanctioning ownership such that he could argue punishment. That issue, left open in part |Il-C-2, supra, is not before us. 78 authority was exercised by Indiana revenue agents was normal for processes followed where controlled and regulated substances are involved. In my view, case law does not command the conclusion that those processes constituted a first punishment under the Double Jeopardy Clause. | would therefore affirm all of appellant's convictions. To be sure, the legal signposts do not all point in the same direction. The large amount of the controlled substance excise tax and the fact that the tax is upon an illegal activity do tend to support the conclusion that it is a first jeopardy punishment under the Double Jeopardy Clause. However, those factors are lessened in value since the tax promotes the legitimate tax purposes of deterring a socially undesirable activity and raising revenue from what we know can be a highly profitable, clandestine, commercial enterprise. While the tax looks radically high as applied to marijuana, it looks less radical when applied to other 79 controlled substances such as LSD and the opium derivatives, which are lighter in weight and more expensive on the black market. In prosecutions of uniawtul possession of other highly regulated substances such as liquor and cigarettes, it is ordinary for the criminal prosecution for possession of untaxed liquor or cigarettes to be viewed only as a first jeopardy even though the tax with penalty was paid during the pendency of the criminal proceeding. See Ind.Code Ann. §7.1-5-4-1 (West 1982); Ind.Code Ann. §6-7-1-24 (West 1989). Such payment is a wise choice since it might persuade a prosecutor not to pursue a conviction, or might serve as a mitigator in the judicial determination of a proper sentence. Such payment is not regarded as a first jeopardy punishment. Finally, an assessment issued from within the revenue department operates under the majority opinion to foreclose exercise of the police power expressed in the tax statute via 80 the local prosecuting attorney. That power is of the highest essential order, and | am reluctant to embrace such a shift of it, except in the clearest of circumstances. 81 82 IN THE SUPREME COURT OF INDIANA KEVIN AND MONICA CLIFFT, Appellants, Vv. INDIANA DEPARTMENT OF STATE REVENUE and KENNETH L. MILLER, COMMISSIONER, me ee ee ee ee ee ee eee eee” Appellees. Cause No. 49$10-9503-TA-331 APPEAL FROM THE INDIANA TAX CCURT The Honorable Thomas G. Fisher, Judge December 27, 1995 SHEPARD, Chief Justice. A woman and her husband were arrested for criminal drug possession. After their arrest, the State assessed the indiana Controlled Substance Excise Tax (CSET) against them and the wife pied guilty to misdemeanor drug possession. The 83 couple now contends the tax was a second jeopardy in violation ; of the Double Jeopardy Ciause. |. Statement of Facts In October 1992, police executed a search warrant for the home of appellants Monica and Kevin Clifft. During their t search, police discovered 927 grams of marijuana. The police contacted appellee Indiana Department of State Revenue and reported their findings. The Department subsequently assessed the CSET against the Cliffts. Based on the weight of the drug multiplied by the statutorily prescribed rate of $40 per gram, the Department found the Cliffts owed $37,080 in drug taxes. Ind. Code Ann. § 6-7-3-6 (West Supp. 1994). It also assessed a 100 percent penalty against the couple for their failure to pay the tax when first possessing the — oir drugs. Ind. Code Ann. § 6-7-3-11 (West Supp. 1994). When these sums were combined with administrative charges, the Cliffts' total tax liability was $77,871. Interest immediately began to accrue at the rate of $8.13 per day. 84 In January 1993, Monica pled guilty to possession of marijuana, a class A misdemeanor. The court ordered her driver's license suspended for six months and directed imprisonment of 365 days, with 363 suspended. The State dropped its charges against Kevin. The Cliffts subsequently appealed the Department's CSET assessment to the Indiana Tax Court. The couple claimed the CSET violated their double jeopardy, due process and equal protection rights, as well as their privilege against self-incrimination. After a hearing on the merits, the court concluded that the CSET assessment was Monica's second jeopardy, but found Kevin had not twice been placed in jeopardy. It therefore reversed the assessment against Monica. The court further determined that the CSET did not violate the couple's due process, equal protection and self-incrimination rights. Clifft v. Indiana Dep't of State Revenue (1994), ind. Tax, 641 N.E.2d 682. 85 Tia ¢ on. ie eed ue ered RRS OP LEBEN aS we Sr EY The Cliffts' petitioned this Court for review of their due process and seff-incrimination claims. The Department petitioned for review of the double jeopardy issue. We held oral argument and granted review as to all three issues. Consequently, we now consider: 1. Whether the imposition of the CSET was a second jeopardy in violation of the Cliffts' double jeopardy rights afforded by the Fifth Amendment of the United States Constitution: 2. Whether the CSET violates the privilege against self-incrimination embodied in the Fifth Amendment to the U.S. Constitution; and, 3. Whether the CSET violates the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. We hold that the CSET was Monica and Kevin's first jeopardy. Monica's criminal conviction for possession was therefore her second jeopardy, and it was barred by the Double 86 Jeopardy Clause. No second jeopardy occurred in Kevin's case; therefore, his double jeopardy rights were not violated. We further conclude that the CSET violates neither the Cliffts' privilege against self-incrimination nor their due process rights. ll. Standard of Review Decisions of the Indiana Tax Court are entitled to a presumption of validity on appellate review. USAir, Inc. v. Indiana Dep't of State Revenue (1991), Ind., 582 N.E.2d 777; Ind.Tax Court Rule 10. We affirm the Tax Court's decision unless, after reviewing the record as a whole, this Court “is left with the definite and firm conviction that a mistake was made, even though there was some evidence to support the finding below." USAir, 582 N.E.2d at 778. In such a case, the findings of the Tax Court are clearly erroneous and are thus reversible. Indiana Dep't of State Rev. v. Bethlehem Steel Corp. (1994), 639 N.E.2d 264. lil. Double Jeopardy 87 Like the appellant in today's case of Bryant v. State (1995), Ind., N.E.2d , the Cliffts argue that the CSET assessment was their second jeopardy in violation of the Double Jeopardy Clause. U.S. CONST. amend. V. Our holding from Bryant thus applies: the CSET is a punishment and thus a jeopardy for double jeopardy purposes which attaches at the moment of assessment. Because the State assessed the CSET and its 100 percent penalty against Monica and then convicted her in a separate proceeding under the criminal law for the same drug offense, she was twice placed in jeopardy. Accordingly, the second jeopardy, Monica's criminal conviction, is contrary to the Double Jeopardy Clause. Her CSET liability does not violate the Double Jeopardy Clause. Kevin did not suffer multiple jeopardies for the same offense. The State assessed the CSET against him, but did not follow that assessment with any criminal action. He therefore cannot be said to have twice been placed in jeopardy. 88 IV. Self-incrimination The Cliffts claim the CSET violates a taxpayer's privilege against self-incrimination awarded by the Fifth Amendment to the U.S. Constitution.“ The couple argues that by virtue of the fact that a taxpayer must present herself in the Department's office when paying the CSET, she is forced to incriminate herself. We disagree. The Fifth Amendment provides that no person shall be compelled to be a witness against himself. U.S. CONST. amend. V. This privilege is applicable to the states through the Fourteenth Amendment Due Process Clause and is afforded "in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory."” Maness v. Meyers, 419 U.S. 449, 464 (1975) (quoting Kastigar v. United States, 406 U.S. “Before the Tax Court, the Cliffts also claimed that the CSET violated their privilege against self-incnimination under the Indiana Constitution. IND. CONST., art. 1, § 14. They do not raise this issue in their Petition for Review. 89 441, 444 (1972)). As a result of this privilege, our jurisprudential system follows the maxim nemo tentur prodere: No person is bound to accuse himself. Ann. L. lijima, The War on Drugs: The Privilege Against Self-incrimination Falls Victim to State Taxation of Controlled Substances, 29 Harv. C.R.-C.L. L. Rev. 101, 103 (1994). This maxim unquestionably underlies the foundation of our accusatorial judicial system, which requires the state to pursue its prosecution by questioning witnesses other than the defendant and dictates that the defendant is not required to assist the prosecution in its case against her. Id. | Taxes like Indiana's CSET are not altogether novel and, accordingly, neither are challenges to them under a seflf- incrimination theory.” Defendants using the Fifth Amendment ““Numerous states have enacted CSET-like taxes. ALA Cove §§ 40-17A-1 to -16 (Michie Supp. 1994) ("Drugs and Controlled Substances Excise Tax"); ARIZ. REV. STAT. ANN. §§ 42-1201 to -18 (West 1994) ("Luxury Privilege Tax"); COLo. 90 REV. STAT. ANN. §§ 39-28.7-101 to -9 (Bradford Supp. 1994) ("Controlled Substances Tax"); FLA. STAT. ANN. § 212.0505 (West Supp. 1995); GA. CODE ANN. §§ 48-15-1 to -11 (Harrison Supp. 1994); IDAHO CODE §§ 63-4201 to -11 (Michie Supp. 1994) ("Illegal Drug Stamp Tax Act"); ILL. ANN. STAT. ch. 35 ILCS 520/1 to -26 (Smith-Hurd 1995) ("Cannabis and Controlled Substances Tax Act"); KAN. STAT. ANN. §§ 79-5201 to -12 (1994) ("Marijuana and Controlled Substances Tax"); Me. REv. STAT. ANN. tit. 36 §§ 4433 to -6 (West 1994) ("Illegal Drug Tax"; imposed only after a conviction for illegal possession); MINN. STAT. ANN. §§ 297D.01 to .14 (West 1995) (“Marijuana and Controlled Substance Taxation"); MONT. CODE ANN. §§ 15-25-101 -23 (1993) ("Dangerous Drug Tax"); NEB. REV. STAT. §§ 77-4301 to -16 (1993) ("Marijuana and Controlled Substances Tax"); OKLA. STAT. ANN. tit. 68 §§ 450.1 to .9 (West Supp. 1994) ("Controlled Dangerous Substance Tax"); R.I. GEN. LAWS §§ 44-49-1 to -15 (Michie Supp. 1994) ("Taxation of Marijuana and Other Controlled Substances"); TEX. TAXCODE ANN. §§ 159.001 to .301 (West Supp. 1995) (“Controlled Substances Tax"); UTAH CODE ANN. §§ 59-19-101 to -7 (Michie Supp. 1994) (“Illegal Drug Stamp Tax Act"); Wis. STAT. ANN. §§ 139.87 to .96 (West Supp. 1994) ("Tax on 91 privilege against self-incrimination have challenged CSET-style taxes in Minnesota,“’ Florida,’ South Dakota,“ Kansas,” Utah*’ and elsewhere. These courts rightly evaluate their drug taxes under the self-incrimination analysis developed by the U.S. Supreme Court in the Marchetti/Grosso series of cases. This analysis requires courts to consider: (1) | Whether the activity being taxed is in an area “permeated with criminal statutes" and whether the tax is aimed at individuals who are "inherently suspect of criminal activities”: Controlled Substances"); Wyo. STAT. § 39-6-405(a)(xix) (1994) ("Sales Tax"). *’Sisson v. Tripplett, 428 N.W.2d 565 (Minn. 1988). “Florida Dept of Revenue v. Herre, 634 So.2d 618 (Fla. 1994). “State v. Roberts, 384 N.W.2d 688 (S.D. 1986). State v. Durrant, 769 P.2d 1174 (Kan. 1989), cert. denied, 492 U.S. 923. *'State v. Davis, 787 P.2d 517 (Utah App. 1990). 92 (2) | Whether the procedure requires the individual to give information which would reasonably be expected to be available to police; and, (3) | Whether the data provided by the individual would constitute a significant link in the chain of evidence helping to establish guilt. See Marchetti v. United States, 390 U.S. 39, 47-48 (1968) (quoting Alb U.S. 70, 79 (1965)); Leary v. United States, 395 U.S. 6 (1969) (conviction for failure to pay tax under Marijuana Tax Act violates privilege); Grosso v. United States, 390 U.S. 62 (1968) (conviction for failure to pay wagering excise tax violated privilege). There are two final considerations which this Court must consider when applying the Marchetti test. First, the privilege may only be invoked when the threat of incriminating oneself is “real and appreciable" and not merely “imaginary and unsubstantial." Marchetti, 390 U.S. at 48. Second, where 93 available statutory protection is broad enough to encompass the same protection afforded by the Fifth Amendment, an individual cannot successfully assert the Amendment's privilege. Id. at 58 (citing Counselman v. Hitchcock, 142 U.S. 547, 585 (1892)("[Llegislation cannot abridge a constitutional privilege... unless it is so broad as to have the same extent and scope and effect."))."* Through applying the Marchetti test to various taxes on illegal activities, the U.S. Supreme Court has voided CSET- “The issue examined today was long ago noticed by this Court when it decided Wilkins vy. Malone (1860), 14 Ind. 153. an opinion relied upon by the U.S. Supreme Court in resolving Counseiman. in Wilkins, we said: “Literally, this provision extends to criminal prosecutions only, and not to civil actions: but we think its spirit and intent go much farther, and protect a person from a compulsory disclosure, in a civil suit, of facts tending to criminate the party, wherever his answer could be given in evidence against him in a subsequent criminal prosecution.” style assessments on wagering, illegal firearms, and controlled substances on the grounds that they violate a taxpayer's privilege against self-incrimination. Grosso, 390 U.S. 62 (1968); Haynes v. United States, 390 U.S. 85 (1968); Leary, 395 U.S. 6. In each of these cases, the Supreme Court found the Marchetti test was satisfied because a real and substantial risk of self-incrimination existed. Information required to be disclosed in Grosso, Haynes, and Leary included various combinations of a taxpayer's name, home and business addresses, social security number, admissions that the taxpayer is conducting an illegal activity, names and addresses of patrons, an income return disclosing the illegal activity, and a record of the taxpayer's felony convictions. The Supreme Court found these statutes compelled self-incrimination because they required the disclosure of identifying and_ incriminating information that was then made available to law enforcement authorities. Grosso, 390 U.S. at 65-66; Haynes, 390 U.S. at 96; Leary, 395 U.S. at 14-15. 95 State courts applying the identical rationale to drug tax cases have reached an identical conclusion. See, e.g., Briney v. State Dep't. of Revenue, 594 So.2d 120 (Ala Civ. App. 1991). Application of the Marchetti test to the CSET therefore directs our focus to the disclosure of information compelled at the time of payment and whether that information is, or could be. distributed to police. The CSET easily meets the first prong of Marchetti because it is imposed in an area permeated with criminal Statutes and is aimed at individuals who are inherently suspected of illegally possessing, manufacturing and distributing controlled substances. The question thus becomes whether the information disclosed when a taxpayer pays the CSET is turned over to police and whether that information constitutes a "significant link" in the chain of evidence to establish guilt. The second prong of the Marchetti test is satisfied by the CSET because information disclosed by a taxpayer is not and 96 cannot be revealed to law enforcement authorities for any purpose other than tax collection. Ind. Code Ann. § 6-8.1-7-1 (West Supp. 1994). Section 6-8.1-7-1 prohibits the Department and its agents from divulging the amount of tax paid, any investigative reports or records or any other information disclosed by the reports filed under the provisions of law relating to the CSET when it is agreed that the information is to be confidential and to be used solely for official purposes. Id. Any such divulgence is a class C misdemeanor and grounds for immediate dismissal. Ind. Code Ann. § 6-8.1-7-3 (West Supp. 1994). The Cliffts allege that § 6-8.1-7-1 does not apply to the CSET and that, even if it did, information disclosed by the CSET payor cannot fall within its confidentiality requirement because the CSET does not "generate information which could be disclosed on reports or obtained from federal returns ... ." Memorandum in Support of Summary Judgment, p.10. We cannot agree. Because the legislature included the CSET as a 97 listed tax within § 6-8.1-1-1, information disclosed when paying the CSET is subject to § 6-8.1-7-1's confidentiality provision. Moreover, § 6-8.1-7-1's sweeping language prohibiting disclosure of "any other information" inherently includes any information a CSET payor discloses to the Department. As such, information disclosed when paying the CSET is strictly confidential. Ultimately, it is evident that the legislature recognized the CSET's potential self-incrimination violations and sought to avoid them by requiring that the data collected by the Department be kept confidential. The legislature went out of its way to ensure this confidentiality by ordering a punishment for disclosure, Ind. Code § 6-8.1-7-3, and by simultaneously removing any incentive to disclose the information by providing that it cannot be used to "initiate or facilitate" the taxpayer's prosecution, Ind. Code Ann. § 6-7-3-9. We believe the privilege against self-incrimination requires no more. 98 The larger issue is therefore whether information required to be disclosed when paying the CSET could constitute a significant "link in a chain of evidence" to establish the taxpayer's guilt. Marchetti, 390 U.S. at 48. The Cliffts claim that the statute requires taxpayers to present themselves physically before Department authorities when paying the CSET. They contend this presence is, in and of itself, compelled self-incrimination. We cannot agree. We determine what must be disclosed when paying the CSET by looking at the statute's plain language. Our objective is to determine and effect legislative intent. Spaulding v. International Bakers Serv. (1990), Ind., 550 N.E.2d 307. We ascertain and implement legislative intent by "giving effect to the ordinary and plain meaning of the language used in the statute.” Helton v. State (1993), Ind.App., 624 N.E.2d 499. The statute is examined and interpreted as a whole and the language itself is scrutinized, including the grammatical structure of the clause or sentence at issue. Foremost Life Ins. 99 Co. v. Department of Ins. (1980), 274 Ind. 181, 409 N.E.2d 1092. Within this analysis, we give words their common and ordinary meaning, without “overemphasizing a strict literal or selective reading of individual words.” Spaulding, at 307 (quoting Foremost, 274 Ind. at 186, 409 N.E.2d at 1096). The language of the CSET reveals the fallaciousness of the Cliffts' claim that the statute compels self-incrimination by requiring a taxpayer's presence before Department employees. On the contrary, the statute does not require a taxpayer's presence because the CSET may be paid by an agent of the taxpayer. The CSET's grant of this authority occurs in § 6-7-3-8 which provides that the tax is due when, "the person receives delivery of, takes possession of, or manufactures a controlled substance in violation of IC 35-48-4 or 21 U.S.C. 841 through 852," but also explains that, "[a] person may not be required to reveal the person's identity at the time the tax is paid." Ind. Code Ann. § 6-7-3-8 (emphasis added). As the Tax Court correctly explained, this language does not state who is 100 required to tender the tax due but, rather, states when the tax is due. Moreover, "the juxtaposition of an indefinite article ("a") to modify who 'may not be required to reveal,’ and a definite article ("the") to modify whose ‘identity may not be revealed," necessary includes the possibility that anyone can pay the tax. Clifft, 641 N.E.2d at 687 (quoting Ind. Code § 6-7-3-8). A drug possessor may, accordingly, empower another to pay the tax on his behalf and thereby disclose nothing to Department authorities. It is also "just as important to recognize what the statute does not say as it is to recognize what it does say" when evaluating whether the tahun required to be disclosed under the CSET constitutes a "significant link." Irmscher v. McCue (1987), ind.App., 504 N.E.2d 1034, 1037 (citing Charles W. Smith & Sons, INc. v. Lichtefeid-+Uasaaro (1985), Ind.App.., 477 N.E.2d 308, 310)(emphasis added). The CSET does not require the payor to disclose the identity of the person in possession of drugs, nor does it require the disclosure of the 101 address or telephone number of the possessor. Ind. Code Ann. § 6-7-3-8 (West Supp. 1994). Furthermore, it does not require the payor to reveal his driver's license or other identification, social security number, details of the possession, manufacture or sale of drugs, location of the controlled substances or any other incriminating information. The only data the taxpayer must reveal is the particular amounts of specific drugs listed within the statute which he or his agent possesses. This is required because it is the means by which the CSET may be calculated. Ind. Code § 6-7-3-6. Aside from this divulgence, however, the taxpayer is required to do no more than pay the CSET by some means. This is markedly different from the strict disclosure requirements found in Marchetti, Grosso, Haynes and Leary. Because the CSET satisfies the three prongs of the Marchetti test, there is no "real and appreciable" risk of self- incrimination in violation of the Fifth Amendment. If such a risk did exist, Marchetti would require this Court to evaluate whether 102 some other protection existed which was broad enough to encompass the Fifth Amendment protection. Marchetti, 390 U.S. at 58. We conclude, as did the Tax Court, that the CSET provides this equivalent protection by affording taxpayers both use and derivative use immunity. Ind. Code Ann. § 6-7-3-9. Because our conclusion is identical to that of the Tax Court, we summarily affirm its opinion on the immunity issue. Ind.Appellate Rules 11(B)(3) & 18(H)(2). IV. Due Process The Cliffts next argue that the CSET does not provide the procedural due process demanded by the Fourteenth Amendment to the U.S. Constitution. They claim the CSET unconstitutionally allows the Department to seize property before providing notice or an opportunity for a hearing.” The Department assessed the CSET against the Cliffts on November 9, 1992. The couple protested this assessment and received an administrative hearing on March 5, 1993. Asa result of this proceeding, the Department affirmed the 103 The Department's CSET assessment is a "jeopardy assessment." Ind. Code Ann. § 6-7-3-13 (West Supp. 1994). Consequently, the Department may immediately utilize collection efforts normally available only after providing notice and an opportunity for the taxpayer to be heard. Id. (cross- referencing Ind. Code Ann. § 6-8.1-5-3 (West Supp. 1994)). The Department may, for example, demand payment of the CSET and, where payment is not instantly rendered, may immediately levy on and seize the taxpayer's property. It may then sell the property to satisfy the CSET liability, even where an appeal is pending. Ind. Code § 6-8.1-5-3. assessment in its May 12 findings and the Cliffts appealed to the Tax Court. The Tax Court found no evidence that the Department had ever attempted to collect the CSET owed by the Cliffts. As such, the Cliffts "received an administrative hearing and judicial review prior to suffering any deprivation of their property..." Clifft, 641 .N.E.2d at 691. This lack of collection is not, however, determinative of their due process Claim. 104 On the other hand, the CSET does provide due process opportunities after the Department has issued an assessment. Once assessment occurs, a taxpayer may protest his CSET liability to the Department. It, in tum, conducts an administrative hearing within which the taxpayer may present evidence and make his case. Ind. Code Ann. § 6-8.1-5-1 (West Supp. 1994). Some time after the hearing, the Department issues its findings, upon which a dissatisfied taxpayer may base his appeal to the Tax Court. Because the Department has the authority to begin its collection efforts immediately after assessment, however, these administrative and _ judicial hearings normally occur after the taxpayer has been deprived of his property. The taxpayer also possesses a _ simultaneous opportunity to seek the equitable remedy of injunctive relief. Ind. Code Ann. § 33-3-5-11 (West Supp. 1994). Through this remedy, the taxpayer may enjoin the Department from its collection of her property pending her original tax appeal. See, 105 e.g., Keller v. Indiana Dep't. of State Revenue (1988), Ind. Tax, 530 N.E.2d 787. The question of whether the CSET affords a taxpayer procedural due process depends directly on the scope of the Due Process Clause. "The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). This requirement is imposed in judicial, governmental and agency actions. Withrow v. Larkin, 421 U.S. 35 (1975). Accordingly, the Due Process Clause ensures that, in different situations entailing different procedures, individuals are guaranteed government proceedings which are fair and impartial. Id. Traditional notions of due process enunciated by the U.S. Supreme Court required notice and a hearing before a creditor's seizure of disputed property. Fuentes v. Shevin, 407 U.S. 67 (1972). Today, however, courts frequently conclude 106 that liberty and property interests are adequately protected by procedures imposed after the government deprivation acts against the property. See, e.g., Commissioner v. Shapiro, 424 U.S. 614 (1976) (levy on assets to secure payment of jeopardy assessment permitted when taxpayer given prompt hearing for injunctive relief against levy); Sisson v. Triplett, 428 N.W.2d 565 (Minn. 1988). This shift is presumably due to the Supreme Court's conclusion that due process is not "a_ technical conception with a fixed content unrelated to time, place and circumstances,” but rather is a principle which should be flexibly applied, depending on the particular situation. Mathews, 424 U.S. 334. As such, where property rights are involved, mere postponement of the opportunity to be heard is not a denial of due process if the opportunity ultimately given is adequate. Shapiro, 424 U.S. 614, 631-32 (citing Phillips v. Commissioner, 283 U.S. 589, 595, 596-97). By including the CSET in the category of assessments which the Department may immediately collect, the legislature 107 has classified this area as one in which the magnitude of the government's need to take action without administrative delay justifies the temporary deprivation of property which may occur. We agree with this conclusion and the Cliffts have presented no evidence upon which we may base a contrary assertion. Moreover, the CSET does not deny, but merely postpones, due process opportunities by providing a full and fair eppertunty to be heard post-deprivation, when the taxpayer protests his assessment. The Department's subsequent hearing on the protest is the taxpayer's opportunity to challenge the validity of the tax and to have property wrongly taken returned or to be refunded its value if it has been sold. The taxpayer receives a further opportunity to be heard when she seeks judicial review of the assessment through an original appeal to the Tax Court. All the while, from the moment of assessment to final appeal, the taxpayer also possesses the right to block collection efforts by seeking injunctive relief. 108 We conclude that these procedures afford review in a meaningful time and in a meaningful manner which comports with the Fourteenth Amendment. The Cliffts' due process rights were not violated. IV. Conclusion We therefore affirm the decision of the Tax Court in all respects except its conclusion that Monica's CSET liability was barred as a second jeopardy. Ve reverse as to this issue and reinstate the civil penalties assessed against her. Dickson and Selby, JJ., concur. DeBruler, J., concurs in result and dissents with separate opinion to follow. Sullivan, J., concurs and dissents with separate opinion. SULLIVAN, Justice, concurring and dissenting. As explained in part Il of my dissent today in State v. Bryant (1995), Ind., N.E.2d (Sullivan, J., dissenting), 109 | believe the majority errs in holding that an administrative assessment of a tax can constitute a first punishment for double jeopardy purposes. As such, | believe that Monica Clifft's criminal conviction is not contrary to the Double Jeopardy Clause. However, payment of the CSET assessed would constitute a second punishment of Monica Clifft and would therefore be barred by Department of Revenue of Montana v. Kurth Ranch, 114 S.Ct. 1937 (1994) (tax on the possession of illegal drugs assessed after the state has imposed a criminal penalty for the same conduct violated Double Jeopardy Clause). “if we were to proceed under the altemative approach | describe in part Ill of my Bryant dissent, | would remand to the Tax Court for determination of when jeopardy attached, i.e.. when evidence was first presented to a trier of fact in the Cliffts’ contest of the assessment. If that occurred prior to jeopardy attaching in Monica Clifft's criminal prosecution, then the result would be the same as the majonty reaches here. 110 | agree with the majority that no second jeopardy occurred in Kevin Clifft's case and that the CSET violates neither the Cliffts' privilege against self-incrimination nor their due process rights . DeBRULER, J., concurring in result and dissenting with opinion. | concur in sections Il, IV, and V. | cannot agree with section Ill, which states the court's holding that the jeopardy assessment for tax and penalty which preceded Monica Clifft's guilty plea to illegal possession of marijuana constituted a first punishment jeopardy under the Double Jeopardy Clause and that her conviction upon a plea of guilty violated the Double Jeopardy Clause. See Bryant v. State (1995), Ind., 660 N.E.2d 290 (DeBruler, J., concurring and dissenting). As | understand the record, the Cliffts have to date been subject to no collection efforts and have paid none of the tax. In light of the conclusion of this appeal, this 111 case will now continue in the Tax Court for consideration of the other constitutional claims made by the Cliffts. | concur in that result. 113 IN THE INDIANA TAX COURT KEITH AND MARY HALL, Petitioners, Vv. INDIANA DEPARTMENT OF STATE REVENUE and KENNETH L. MILLER, COMMISSIONER, ee eee ee eee ee ees es Respondents. Case No. 49T10-9306-TA-00036 October 11, 1994 APPEAL FROM A FINAL DETERMINATION OF THE INDIANA DEPARTMENT OF STATE REVENUE FISHER, J. The petitioners, Keith and Mary Hall (the Halls), appeal the final determination of the respondent, the Indiana Department of State Revenue (the Department), assessing controlled substance excise tax (CSET) against the Halls. Like the petitioners in the other three decisions the court 114 hands down today, Clifft v. Indiana Department of State Revenue (filed Oct. 11, 1994), Ind. Tax No. 49T10-9308-TA- 00064, Bailey v. Indiana Department of State Revenue (filed Oct. 11, 1994), Ind.Tax No. 49T10-9302-TA-00009, and Hayse v. Indiana Department of Sate Revenue (filed Oct. 11, 1994), Ind.Tax No. 49T10-9308-TA-00063, the Halls challenge the constitutionality of the CSET. On February 12, 1993, police entered the Halls’ Indianapolis residence. In a locked basement storage room, they discovered a bale of marijuana weighing roughly 300 pounds or 142,238 grams. Both Mr. and Mrs. Hall were arrested, and Mr. Hall was later convicted of Class D felony marijuana possession. All charges against Mrs. Hall were dropped. On February 16, the Department presented the Halls with a CSET assessment of $5,691,320.00, representing a tax of $40 per gram on the 142,283 grams assessed. Because the Halls had not paid the CSET when it was due, 115 the Department. also assessed a 100 percent penalty of $5,691,320.00, for a total assessment of $11,382,640. Interest began accruing immediately at a daily rate of $1,091.49. Acting pursuant to the tax warrant the Department issued with its jeopardy assessment,” the Marion County Sheriff began levying on the Halls' property. Ultimately, the Sheriff seized property and garnished wages worth roughly $40,000, enough to pay five to six weeks' worth of interest charges. The Sheriff ceased collection efforts several months ago. The Halls are represented by the same counsel as the Cliffts, and procedurally, this appeal is on a par with the Cliffts': it is before the court on the parties' cross motions for Summary judgment. Because the motions raise the same questions as the motions in Clifft, the court reiterates its holding that the CSET does not violate the Fifth Amendment * See IND. CODE 6-7-3-13; 6-8. 1-5-3. 116 privilege against self-incrimination or the Fourteenth Amendment rights to equal protection and procedural due process. Clift, slip op. at 15, 19, 21. The court also reiterates its holding that the CSET is 2a punishment within the meaning of the Fifth Amendment cromibiticn against double opardy uncer Desarment of Peverue vy Kurt Rarer 1334). US , 1% Sc 1937. 13 Laas 7. COR die oo a SBS Secause Wr: “al ne: sufieet 2° Cimma@ posecio o pumishment, the assessment against her s therefore unaffected by this opinion.“ Mir. Halll, on the other hand, has already been convicted on felony possession charges. Like the petitioners in Bailey and Hayse, and one of the petitioners in Clifft, Mr. Hall was arrested, assessed with CSET liability, and convicted with all or almost all of his * Mrs. Hall retains for trial, however, her challenge to possession of the maryuana. as well as her claims under the Fouw'th and Eighth Amendments. and 42 USC § 1983 117 CSET liability outstanding. He has been punished once, and the Department cannot punish him again by collecting the CSET from him. See Ciifft, slip op. at 25-26. Accordingly. the court GRANTS the Department's motion for partial summary judgment in part and GRANTS the Halls’ motion for cartial summary judgment im cart ~The ‘ral cetermiraticr of te Oecarmert assesarg te CSET agars: Wr Hail s REVERSED Tre dsgostion of te ira Getermmaiion assessmg the CSET agamst Wrs Hall willl awar ra. 118 in IN THE INDIANA TAX COURT KEVIN AND MONICA CLIFFT. Petitioners ’ MDIAMA DEPARTMENT OF STATE REYEMUE ans KENNETH L MILLER COMMISSIONS Respondents Cause No. 45T10-9308-TA-00064 October 11, 1994 APPEAL FROM A FINAL DETERMINATION OF THEINDIANA DEPARTMENT OF STATE REVENUE FISHER, J. Indiana levies a tax on the delivery, possession, and manufacture of controlled substances (the controlled substance excise tax or CSET)” The present appeal, $7 IND. CODE 67-345 120 before the court on the parties’ cross motions for partial summary judgment, challenges the constitutionality of the CSET. Specifically, the petitioners, Kevin and Monica Cilifft, raise the following issues: l. Whether the CSET violates the privilege against self-incrimination under the Fifth Amendment to the United States Constitution. i. Whether the CSET violates the Cliffts' equal protection rights under the Fourteenth Amendment to the United States Constitution. Hil. Whether the CSET violates the Cliffts' due process rights under the Fourteenth Amendment to the United States Constitution. 121 IV. Whether the CSET violates the double jeopardy clause of the Fifth Amendment to the United States Constitution.® ** in their motion for summary judgment, the Cliffts also claim the CSET violates their corresponding rights under Article |, §§ 14 and 23 of the Indiana Constitution. A movant for summary judgment under Ind. Trial Rule 56(C) bears the burden to prove both the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. C & C Oil Co. v. indiana Dep't of State Revenue (1991), Ind. Tax, 570 N.E.2d 1376, 1378. Regardiess of the existence or absence of a genuine issue of material fact on their state constitutional claims, the Cliffts have not attempted to show they are entitied to judgment as a matter of law. Indeed, they have made no argument to support their bare allegations, and therefore are not entitled to summary judgment. Consequently, the court will not consider the Cliffts’ State constitutional claims further within the context of the present motions. 122 BACKGROUND AND PROCEDURAL POSTURE The CSET, which went into effect on July 1, 1992,is imposed on controlled substances that are: (1) delivered; (2) possessed; or (3) manufactured; in Indiana in violation of IC 35-48- 4 or 21 U.S.C. 841 through 852. The tax does not apply to a controlled substance that is distributed, manufactured, or dispensed by a person registered under IC 35-48-3. 123 I.C. 6-7-3-5. Thus, a person becomes liable for the CSET “when the person receives delivery of, takes possession of. or manufactures a controlled substance in violation of IC 35- 48-4 or 21 U.S.C. 841 through 852." IND. CODE 6-7-3-8. Failure to, . the tax when due gives rise "to a penalty of one hundred percent (100%) of the tax in addition to the tax." IND. CODE 6-7-3-11(a). The amount of tax is based upon the weight and class of the substance. IND. CODE 6-7-3-6. Schedule |, II, and Il! substances are taxed at $40 per gram, while Schedule IV and V substances are taxed at $20 per gram and $10 per gram, respectively. id. THC, the active ingredient in marijuana, is a schedule | substance. IND. CODE 35-48-2- 4(d)(22). On October 8, 1992, indianapolis and Speedway police executed a search warrant for the Cliffts’' home. in their search, the police discovered and confiscated six marijuana plants, baggies containing marijuana, and 124 marijuana growing equipment. The Marion County Forensic Crime Laboratory weighed the marijuana, finding a total of 927 grams. After law enforcement authorities shared their information with the Indiana Department of State Revenue (the Department), the Department assessed the Cliffts with CSET liability of $37,080, a 100% nonpayment penalty of $37,080, a 10 percent collection fee of $3,708," and a clerk's charge of $3.00, for a total of $77,871.00. Interest began accruing immediately at the rate of $8.13 per day. On January 14, 1993, the Marion Municipal Court accepted a plea agreement between Mrs. Clifft and the Marion County Prosecutor. Mrs. Clifft pled guilty to possession as a Class A misdemeanor and received a six month driver's license suspension plus 365 days of incarceration, with 363 days suspended. The charges against Mr. Clifft were dropped. At the time of the hearing % IND. CODE 6-8. 1-8-2(b). 125 before this court in November 1993, the Cliffts had made no payments toward their CSET liability. DISCUSSION AND DECISION Because this is an appeal from a final determination of the Department, the court hears the case de novo and is bound by neither the issues nor the evidence presented during the administrative proceedings. Indiana Waste Systems of Indiana, Inc. v. Indiana Dep't of State Revenue (1994), Ind. Tax, 633 N.E.2d 359, 362 (citing Maurer v. Indiana Dep't of State Revenue (1993), Ind. Tax, 607 N.E.2d 985, 986). In reviewing the parties’ cross motions for partial summary judgment, the court is not to enter summary judgment unless there is no genuine issue of materia! fact and a party is entitled to judgment as a matter of law. Id. (citing Harlan Sprague Dawley v. Indiana Dep't of Revenue (1992), Ind. Tax, 605 N.E.2d 1222, 1225). Because the Cliffts challenge the constitutionality of the CSET, they face a difficult burden. They must rebut the 126 strong presumption that statutes are constitutional. See State Line Elevator, Inc. v. State Bd. of Tax Comm'rs (1988), Ind. Tax, 528 N.E.2d 501, 503. I SELF-INCRIMINATION The Cliffts first claim the CSET violates the privilege against self-incrimination under the Fifth Amendment to the United States Constitution. They maintain that the simple act of paying the CSET subjects taxpayers t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1683%3A2. Public record. Not legal advice.