# Opposition Brief — Plunk v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1996
- **Citation:** 517 U.S. 1188

## Text

-) 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 ]
Nee wiaws bskuidinsbateioes 1
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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1806%3A2. Public record. Not legal advice.