Opposition Brief — Plunk v. United States

-) Supreme Court, U.S.

etl oe fe Pee eR

No. 95-1243 ; App 4 1994

In the Supreme Court of the Wniten Sites —_|

OCTOBER TERM, 1995

GERALD FRANK PLUNK, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DREW S. Days, III

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney

General

J. DOUGLAS WILSON

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

Whether the Double Jeopardy Clause barred

petitioner’s prosecution for ten drug trafficking of-

fenses after the prior uncontested administrative

forfeiture of property and cash seized from him.

(I)

TABLE OF CONTENTS

Page

GEES CS RS sn Od cone eee ]

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a a acetalia bhcaeandhesmecass 2

ESR i ST SM SABRE WG A I Fae Aa 6

RESETS Oot Ae Aaa Sa a a 13

TABLE OF AUTHORITIES

Cases:

Abney v. United States, 431 U.S. 651 (1977) ........... 7

Austin v. United States, 113 S. Ct. 2801 (19938) ....... 7

Baird v. United States, cert. denied, 116 S. Ct. 909

EY cilia eeidiiciaitiadiisbateedidieiidmisbibdvedcrecsiccasoiveces 6, 13

Griffith v. Kentucky, 479 U.S. 314 (1987) ................ 11

Harper v. Virginia Dep’t of Taxation, 113 S. Ct.

I a scueniiecces 11-12

Nakamoto v. United States, cert. denied, No. 95-

TE RT eee 13

North Carolina v. Pearce, 395 U.S. 711 (1969) ....... 7

Penny v. United States, cert. denied, 116 S. Ct.

I To sacbaimeve 13

Reynoldsville Casket Co. v. Hyde, 1158S. Ct. 1745

a casliipacinituvews 12

Ricketts v. Adamson, 483 U.S. 1 (1987) .............0000- 10

Serfass v. United States, 420 U.S. 377 (1975) ......... 10

Simmons v. United States, 390 U.S. 377 (1968) ...... 1]

Smith v. United States, cert. denied, No. 95-6830

I a ss cenpbensbbineniaade 13

United States v. Arreola-Ramos, 60 F.3d 188

ga EARS ler in Sa oe 8, 9-10

United States v. Baird, 63 F.3d 1213 (3d Cir. 1995),

cert. denied, 116 S. Ct. 909 (1996) ........................ 8, 9, 10

United States v. Cretacci, 62 F.3d 307 (9th Cir.

1995), petition for cert. pending, No. 95-7956 ....... 5, 6, 8,

9, 11, 13

(IIT)

IV

Cases—Continued: | Page

United States v. $405,089.23 in United States

Currency, 33 F.3d 1210 (1994), amended on denial

of rehearing, 56 F.3d 41 (9th Cir. 1995), cert.

granted, 116 BS, Cb. TUE (1GRB) ....ccccnsscccsienccccssssoveeesys 4,7

United States v. German, 76 F.3d 315 (10th Cir.

DOD insistence cist pcs hd cece Maeeipenenns 7,9

United States v. Halper, 490 U.S. 435 (1989) .......... 7

United States v. Idowu, 74 F.3d 387 (2d Cir.

TODO vcisitscccacececvscicddasccackesstpmacelcbaiasalbbatincasssocits

United States v. Monia, 317 U.S. 424 (1948) ........... 11

United States v. Pena, 67 F.3d 153 (8th Cir. 1995) .

United States v. Premises Located at Route 13,

966. F Da FED CLI Gar: BOG EP svcndcanecsseccvasigtissevesicscins 11

United States v. Scott, 437 U.S. 82 (1978) .............. 10

United States v. Sykes, 73 F.3d 772 (8th Cir.

TODD aisccciudh ccndilangnddescccdlcedeeioriiamdcatehesibaonainses 7-8

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

cert. denied, 115 S. Ct. 669 (1994) ......... eee ee eee 8, 9, 10

United States v. $250,000 in United States Currency,

et BRKT ee: Rear een nee nae 11

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

cert. granted, 116 S. Ct. TEZ (1906) .......cscecersscsvescecs 7

United States v. Washington, 69 F.3d 401 (9th Cir.

NOD seisisciidiictinnchascusincicmmnadereanadcciacadmaienaaiaadtheclan 13

Constitution, statutes, regulations and rule:

U.S. Const.:

OF ii kts inthe sa es panei aca naeinikannminiinatabanieic 6, 10, 11

Double Jeopardy Clause ...... 2, 4, 5, 6, 7, 9, 10, 12, 18

Amend. VIII (Excessive Fines Clause) .................

16 1). Sean (siiees kchicnsen eee

ri NE oases ikvtcacccasa dca cscncueetomataerbassoconinivades

SD RE Ra Se adden vuakesntscectvesdéensss ee

EE ee BS hcncccinsdcnacivccckscedvdecoaseseoebdvainaniodons

Oe er) ideas iiccikcnccemadibecnuinbanaennanniant

BE RS I i cdodaha snsdcnesustsbesivasedesdeicaueoneadacaaianbws

21 UBC. S46 ....... di ase caieallnndubecaan obec ooienad ea aeeed lola aaa:

mMmwNw Ww © MO =)

Statutes, regulations and rule—Continued: Page

Bee hs NIT Scctiaien Samantbicaa beasnichsntdleansnbudivudbenipcnimetion 12

Sek SP eats LOD | Nedudbencdndonidccitabenisdtpawuaensuniitniagtéciids 12

Fee AL: EE « idhnivesdinecaenionanp diciegncep aa icnnaacunabaiabeaiins 8

21 C.F.R.:

SERGE SINE PI RUIIIICE D scnceceadunvonedeiciagientecbensatesiins 8

SON SOE eicaeub casilitetbnitcbunlanstasdbaaiectetiniceutanseie 8

Supplemental Rules for Certain Admiralty

and Maritime Claims, Rule C ..................cccsccscessceeses 8

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1995

No. 95-1243

GERALD FRANK PLUNK, PETITIONER

U.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-3) is

unpublished, but the judgment is noted at 68 F.3d 482

(Table). The order of the district court granting in

part and denying in part petitioner’s motion to dis-

miss (Pet. App. 4-15) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

October 17, 1995. A petition for rehearing was denied

on December 14, 1995. Pet. App. 29. The petition for a

writ of certiorari was filed on February 1, 1996. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

STATEMENT

A grand jury in the District of Alaska returned a

superseding indictment charging petitioner with two

counts of conspiracy to distribute cocaine, in violation

of 21 U.S.C. 846; operating a continuing criminal

enterprise, in violation of 21 U.S.C. 848; four counts of

using a communications facility to facilitate a con-

trolled substance offense, in violation of 21 U.S.C. 8438;

and three counts of possession of cocaine with the

intent to distribute it, in violation of 21 U.S.C.

841(a)(1). Pet. App. 6. Before trial, petitioner moved

to dismiss the ten counts of the indictment against

him on the ground that his trial on those counts

would violate the Double Jeopardy Clause. The

district court dismissed five of the counts against

petitioner, but declined to dismiss the remaining five.

Id. at 15." The court of appeals affirmed the denial of

petitioner’s motion to dismiss five of the counts and

reversed the district court’s order to the extent that

it granted petitioner’s motion to dismiss the other

five counts. Jd. at 1-3.

1. On March 22, 1994, law enforcement officers

applied for a warrant to search petitioner’s home in

Anchorage, Alaska. The affidavit in support of the

application stated that between 1980 and 1990,

petitioner had sold cocaine to Warren Jeff Funder-

burk; that in April 1993, petitioner had recruited Hal

Booher to transport cocaine from Los Angeles and

Houston to New Jersey; and that between August and

December 1993, Booher, at petitioner’s behest, had

1 The superseding indictment contained 12 counts. Pet.

App. 6. Counts 7 and 8 alleged violations of 21 U.S.C. 843 by

petitioner’s co-defendant, and those counts are not at issue

here.

3

transported seven or eight loads of cocaine weighing

between 200 and 220 kilograms each. On the basis of

that affidavit, a magistrate judge issued the warrant.

Gov't C.A. Br. 3.

During the ensuing search of petitioner’s home,

government agents seized, among other items, $9,660

in cash, $967.89 worth of Placer gold, and assorted

firearms worth approximately $4,040. On March 25,

1994, petitioner was arrested. At the time of his

arrest, law enforcement agents seized a Rolex watch,

valued at $1,500, from petitioner’s wrist. Gov’t C.A.

Br. 3; see Pet. App. 6-7.

2. On March 24 and April 18, 1994, the Drug

Enforcement Administration (DEA) issued notices of

seizure for the firearms, currency, and Placer gold

seized from petitioner’s home, and for the Rolex

watch seized from petitioner at the time of his arrest.

Each notice stated that the property in question was

subject to forfeiture because it “was used or acquired

as a result of a drug related offense.” Gov’t C.A. Br. 4.

Each notice also stated that a claimant “may petition

the DEA for the return of the property or [the

claimant’s] interest init * * * and/or * * * may

contest the seizure and forfeiture of the property.”

Ibid. The notice explained the procedure for filing a

claim or a petition for remission of the forfeiture and

stated that a “claim of ownership” to the property

must be filed within 20 days of first publication of the

notice. Jd. at 4-5. The notices were mailed to peti-

tioner’s home and to his place of detention. Jd. at 5.

As required by federal regulation, the DEA also

published notification of the seizures and potential

forfeiture of each item (as well as the procedure for

4

filing a claim) in USA Today on three successive

Wednesdays. Jbid.; see Pet. App. 2.*

Petitioner did not file a claim to the property or a

petition for remission of the forfeiture. Accordingly,

in June and August 1994, the DEA administratively

forfeited the seized items to the United States. Pet.

App. 2, 6-7.

3. Before trial, petitioner moved to dismiss the

superseding indictment, alleging that he had already

been punished by the administrative forfeiture of the

property and that his trial on the superseding indict-

ment would violate the Double Jeopardy Clause’s

prohibition of multiple punishments for the same

offense. A magistrate judge recommended that the

motion be granted. Pet. App. 16-28. Relying on

United States v. $405,089.23 in United States Cur-

rency, 33 F.3d 1210 (1994), amended on denial of

rehearing, 56 F.3d 41 (9th Cir. 1995), cert. granted,

116 S. Ct. 762 (1996) (to be argued Apr. 17, 1996), the

magistrate judge found that the administrative for-

feiture and the criminal prosecution were “separate

proceedings” for purposes of the Double Jeopardy

Clause and that petitioner had been punished by the

administrative forfeitures even though he failed to

file a claim to the forfeited property. Pet. App. 21-26.

On that basis, the magistrate judge concluded that

the criminal prosecution could not proceed without

2 In each instance, an individual acting as petitioner’s

agent acknowledged receipt of the notice at petitioner’s home.

In addition, the DEA received acknowledgement that an

individual acting as petitioner’s agent received two of the

notices sent to petitioner’s place of detention. Petitioner does:

not contend that he did not receive notice of the seizures and

forfeitures. See Pet. App. 2.

5

violating the multiple punishments prong of the

Double Jeopardy Clause. Jd. at 27.

The district court agreed with the magistrate

judge that the administrative forfeitures constituted

“punishment” of petitioner, but it held that the prior

“punishment” barred prosecution only of five counts

of the indictment. See Pet. App. 9-15. In explaining

that conclusion, the court examined the affidavit

submitted by the government in support of the appli-

cation for the warrant to search petitioner’s property.

That affidavit, the district court determined, esta-

blished probable cause to believe that petitioner had

committed the offenses later charged in Counts 1, 9,

10, 11, and 12 of the superseding indictment—the

counts alleging that petitioner had conspired to dis-

tribute cocaine and that he had possessed cocaine

with the intent to distribute it. The court concluded

that the administrative forfeitures had been based on

the information supporting those counts; that the

forfeitures “punished” petitioner for the commission

of those offenses; and that petitioner therefore could

not receive additional punishment for those offenses

in a separate criminal proceeding. Jd. at 11-13. The

district court held, however, that the remaining

counts did not rest on “the same criminal acts upon

which the administrative forfeitures proceeded,” and

that the Double Jeopardy Clause therefore did not bar

a subsequent criminal prosecution on those counts.

Id. at 13-14.

4. The court of appeals affirmed in part and re-

versed in part. Pet. App. 1-3. Relying on United

States v. Cretacci, 62 F.3d 307 (9th Cir. 1995), petition

for cert. pending, No. 95-7955 (filed Feb. 13, 1996), the

court held that petitioner had abandoned the seized

property by failing to file a claim to it, and that the

6

administrative forfeiture of abandoned property “does

not impose a ‘punishment’ for purposes of the Double

Jeopardy Clause.” Pet. App. 2. The court also found

Cretacci to be dispositive of petitioner’s argument

that he could not have filed a claim to the seized

property without compromising his Fifth Amendment

privilege against compulsory self-incrimination. Be-

cause “a defendant’s claim of ownership of property

that was subject to forfeiture may not be used” at

trial to prove the defendant’s guilt, the court stated,

the administrative forfeiture proceedings placed no

burden on petitioner’s exercise of Fifth Amendment

rights. Jd. at 3 (quoting Cretacci, 62 F.3d at 311).

Finally, the court of appeals dismissed as “moot” peti-

tioner’s cross-appeal challenging the district court’s

refusal to dismiss five counts of the indictment. Pet.

App. 3.

ARGUMENT

Petitioner contends (Pet. 11-23) that the Double

Jeopardy Clause bars his criminal conviction on the

offenses charged in the indictment after the for-

feiture of the cash and property seized from him. The

court of appeals correctly rejected that contention,

and it does not warrant further review.’

3 Petitioner apparently seeks review by this Court of that

portion of the Court’s order that dismissed his cross-appeal.

The merits of petitioner’s cross-appeal are not properly before

this Court, however, because the court of appeals lacked

jurisdiction to consider it. As we explained in our opposition to

the petition for certiorari filed in Baird v. United States, cert.

denied, 116 S. Ct. 909 (1996) (No. 95-630), a multiple punish-

ments claim, such as petitioner faises, is not subject to inter-

locutory appeal, because “that aspect of the [double jeopardy]

right can be fully vindicated on an appeal following final

7

1. The Double Jeopardy Clause prohibits the

imposition of multiple punishments for the same of-

fense in separate proceedings. See North Carolina v.

Pearce, 395 U.S. 711, 717 (1969). In United States v.

Halper, 490 U.S. 435 (1989), this Court held that after

imposition of a criminal punishment, the Clause’s

“multiple punishments” prohibition barred imposition

of a civil penalty that is “so extreme and so divorced

from the Government’s damages and expenses as to

constitute punishment.” Jd. at 442. Subsequently, in

Austin v. United States, 113 S. Ct. 2801 (1993), the

Court held that the civil forfeiture provisions at issue

in that case are sufficiently punitive to be subject to

review under the Excessive Fines Clause of the

Eighth Amendment. The courts of appeals are cur-

rently divided with respect to the application of

the Double Jeopardy Clause to successive crimi-

nal punishment and civil forfeiture based on the same

underlying conduct, and this Court recently granted

the government’s petitions for certiorari in two cases

that raise aspects of this issue. See United States

v. $405,089.23 in United States Currency, supra;

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

cert. granted, 116 S. Ct. 762 (1996) (to be argued Apr.

17, 1996).

Every court of appeals that has considered the

issue has held, however, that a person who does not

contest the forfeiture of property cannot claim to

have suffered punishment as a result of that for-

feiture. See United States v. German, 76 F.3d 315,

317-320 (10th Cir. 1996); United States v. Idowu, 74

F.3d 387, 392-396 (2d Cir. 1996); United States v.

judgment.” Abney v. United States, 431 U.S. 651, 660 (1977).

We have supplied petitioner with a copy of our brief in Baird.

8

Sykes, 73 F.3d 772, 773-774 (8th Cir. 1996); United

States v. Baird, 63 F.3d 1213, 1217-1219 (8d Cir. 1995),

cert. denied, 116 S. Ct. 909 (1996); United States v.

Cretacci, 62 F.3d 307, 310-311 (9th Cir. 1995), petition

for cert. pending, No. 95-7955 (filed Feb. 13, 1996);

United States v. Arreola-Ramos, 60 F.3d 188, 192 (5th

Cir. 1995); United States v. Torres, 28 F.3d 1463, 1465

(7th Cir.), cert. denied, 115 S. Ct. 669 (1994). Those

courts have recognized that administrative forfeiture

can be used only to obtain the forfeiture of unclaimed

property. Thus, when the government gives notice

that it intends to obtain the forfeiture of property, and

the recipient of that notice fails to take appropriate

steps to preserve his interest in the property, the

government may consider the property abandoned or

4 Under 21 U.S.C. 881(d), the provisions of the customs

laws governing summary forfeiture may be used against

property that is subject to forfeiture under the controlled

substances laws. See also 21 C.F.R. 1316.74-1316.77. The

applicable customs statutes, 19 U.S.C. 1602-1621, provide for

the administrative forfeiture of specified categories of seized

property if the government publishes notice of seizure and

intention to forfeit the property. If no claim is filed, the

agency has the authority to declare the property forfeited

without a judicial determination. See 19 U.S.C. 1609; 21 C.F.R.

1316.77. If a proper claim and bond (or proof of indigence) is

filed, the agency seeking forfeiture must transmit the matter

to the appropriate United States Attorney’s Office to com-

mence a judicial forfeiture action. See 19 U.S.C. 1608. To

commence that action, the government files an in rem

complaint against the property and publishes notice of the

forfeiture proceeding. Any person who wishes to contest the

judicial forfeiture must file a claim and an answer to the

complaint. See Rule C, Supplemental Rules for Certain

Admiralty and Maritime Claims. In judicial forfeiture pro-

ceedings, a claimant may challenge the government’s right to

obtain forfeiture and may raise an innocent owner defense.

9

ownerless, at least by that person. As the Ninth

Circuit has explained, “[jJust as the seizure of aban-

doned property cannot be said to implicate the former

owner’s privacy rights, the forfeiture of abandoned

property cannot be said to implicate the former

owner’s double jeopardy rights.” United States v.

Cretacci, 62 F.3d at 310-311 (citations omitted). See

also United States v. Baird, 63 F.3d at 1218 (“Because

Baird never asserted an interest in the money that

was seized from his residence, he cannot now claim to

have been punished by its forfeiture.”); United States

v. Arreola-Ramos, 60 F.3d at 192 (because only

unclaimed property may be administratively forfeited,

administrative forfeiture “punishes no one”); United

States v. Torres, 28 F.3d at 1466 (administrative for-

feiture does not impose punishment on person who

fails to establish an interest in the forfeited prop-

erty). Petitioner did not file a timely claim when the

government initiated the administrative forfeiture of

the cash seized from him, and his double jeopardy

claim is therefore without merit.

Moreover, a person who fails to file a claim in

response to a notice that the government will seek

administrative forfeiture of property never becomes a

party to any forfeiture proceeding. Even assuming

that an individual may be placed “in jeopardy” other

than in a criminal case, a person who has not partici-

pated in a proceeding cannot be said to have been

placed “in jeopardy” within the meaning of the Double

Jeopardy Clause. See United States v. German, 76

F.3d at 320 jeopardy does not attach in administrative

forfeiture proceeding); United States v. Pena, 67 F.3d

153, 155-156 (8th Cir. 1995) (defendant not placed in

jeopardy by administrative forfeiture proceeding);

United States v. Arreola-Ramos, 60 F.3d at 192

10

(“Absent a trial, a party, and a punishment, jeopardy

can never attach.”); United States v. Baird, 63 F.3d at

1218 (“jeopardy does not, and cannot, attach until one

is made a party to a proceeding”); United States v.

Torres, 28 F.3d at 1465 (“As a non-party, Torres was

not at risk in the forfeiture proceeding, and ‘[wJithout

risk of a determination of guilt, jeopardy does not

attach.’”) (quoting Serfass v. United States, 420 U.S.

377, 391-392 (1975)). Petitioner’s failure to file a claim

therefore precludes a finding that he was in jeopardy

or suffered punishment in the administrative for-

feiture.”

2. Petitioner also argues (Pet. 13-19) that he could

not have contested the administrative forfeiture

without incriminating himself, and that the forfeiture

therefore violated his rights under the Fifth Amend-

ment. Petitioner failed, however, to assert his Fifth

Amendment rights at the time the government gave

him notice of the administrative forfeiture. Had

petitioner made a valid and supported showing that he

would be incriminated by making a claim to the seized

property, he could have sought a stay of the forfeiture

proceedings or a delay in the filing of a judicial

5 This Court has made clear that “the Double Jeopardy

Clause * * * does not relieve a defendant from the conse-

quences of his voluntary choice.” United States v. Scott, 437

U.S. 82, 98-99 (1978). When a defendant makes a deliberate

decision “to seek termination of the proceedings against him on

a basis unrelated to factual guilt or innocence of the offense of

which he was accused,” he cannot claim in a subsequent pro-

ceeding that he has been “twice put in jeopardy.” Jbid.; see

Ricketts v. Adamson, 483 U.S. 1, 10-12 (1987). By declining to

file a claim to the seized property, petitioner avoided be-

coming a party to the forfeiture action. He therefore cannot

claim that the subsequent criminal proceedings violated his

rights under the Double Jeopardy Clause.

hpi etnaaenc ain

11

forfeiture action until the criminal charges against

him had been resolved. See United States v.

Premises Located at Route 13, 946 F.2d 749, 756 (11th

Cir. 1991); United States v. $250,000 in United States

Currency, 808 F.2d 895, 901 (lst‘ Cir. 1987).

Petitioner’s “failure * * * to assert the consti-

tutional privilege leaves him in no position to

complain now that he [would have been] compelled to

give testimony against himself.” United States v.

Monia, 317 U.S. 424, 427 (1943) (if an individual “de-

sires the protection of the privilege, he must claim

it”).

3. Petitioner contends (Pet. 19-23) that the Ninth

Circuit should not have applied its holding in Cretacci

“retroactively” in deciding his case. This Court has

held, however, that in both civil and criminal cases,

newly declared rules of law must be applied to all

cases pending on direct review. Griffith v. Kentucky,

479 U.S. 314, 320-328 (1987); see Harper v. Virginia

Dep't of Taxation, 113 S. Ct. 2510, 2517 (1998) (rule

6 In Cretacci, the Ninth Circuit held that a defendant’s

claim of ownership to property in a forfeiture proceeding may

not be used to prove his guilt in a later prosecution for the

offenses that gave rise to the forfeiture. See 62 F.3d at 311.

The court relied on this Court’s decision in Simmons v. United

States, 390 U.S. 377 (1968), which held that a defendant’s claim

of ownership to property at a pretrial suppression hearing may

not be used to prove the defendant’s guilt at trial. Judge

Kleinfeld declined to join that portion of the court’s opinion in

Cretacci, arguing that the possibility that property may be lost

unless the owner makes a claim in a forfeiture proceeding does

not constitute compulsion within the meaning of the Fifth

Amendment. See 62 F.3d at 311. Because petitioner did not

make a timely assertion of his Fifth Amendment right, the

validity of the approach adopted in Cretacci is not before the

Court.

12

announced by the Court “is the controlling inter-

pretation of federal law and must be given full

retroactive effect in all cases still open on direct

review and as to all events, regardless of whether

such events predate or postdate [the] announcement

of the rule”); see also Reynoldsville Casket Co. v.

Hyde, 115 S. Ct. 1745, 1748 (1995) (restating Harper

holding). The Ninth Circuit was therefore correct in

applying Cretacci to petitioner’s case.

4, There is no reason to hold this case pending the

disposition of United States v. Ursery, No. 95-345, and

United States v. $405,089.23 in United States Cur-

rency, No. 95-346. In $405, 089.23, the Ninth Circuit

held that the civil judicial forfeiture of drug proceeds

under 21 U.S.C. 881(a)(6) invariably constitutes pun-

ishment under the Double Jeopardy Clause. In

Ursery, the Sixth Circuit held that the civil judicial

forfeiture of property used to facilitate a drug crime

under 21 U.S.C. 881(a)(7) always amounts to pun-

ishment for double jeopardy purposes. The govern-

ment’s brief in those consolidated cases argues that

civil forfeiture followed by criminal prosecution does

not raise double jeopardy concerns, that the

forfeitures at issue do not constitute punishment,

that civil forfeiture and the criminal offense on which

it rests are never the “same offense” under the

Double Jeopardy Clause, and that parallel civil

forfeiture and criminal: actions constitute a single

proceeding for purposes of the multiple punishments

prong of the Double Jeopardy Clause.

Although this Court’s acceptance of the govern-

ment’s arguments in Ursery and $405,089.23 would

provide additional grounds on which to reject peti-

tioner’s claims, a decision favorable to the respon-

dents in those cases would not provide petitioner with

————

13

a basis for relief. The Ninth Circuit, which has taken

the most expansive view of the application of the

Double Jeopardy Clause to civil forfeiture proceed-

ings, rejected petitioner’s claim in this case. See also

United States v. Cretacci, supra; United States v.

Washington, 69 F.3d 401 (9th Cir. 1995). Accord-

ingly, a decision adverse to the government in Ursery

and $405,089.23 would have no effect on the validity of

the court of appeals’ reasoning in the instant case.’

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

DREW S. Days, III

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney

General

J. DOUGLAS WILSON

Attorney

APRIL 1996

7 We note that this Court recently denied three petitions

for a writ of certiorari that presented the question whether a

criminal conviction following an administrative or other

uncontested forfeiture violated the Double Jeopardy Clause.

See Baird v. United States, 116 S. Ct. 909 (1996); Penny v.

United States, 116 S. Ct. 931 (1996); Nakamoto v. United

States, No. 95-7313 (Apr. 1, 1996); see also Smith v. United

States, cert. denied, No. 95-6830 (Apr. 1, 1996) (uncontested ju-

dicial forfeiture following criminal conviction).