Opposition Brief — Czarnecki v. United States

Supreme Court, U.S.

(Z) FILED

No. 91-1531 JUN 10 1992

OFFICE OF THE CLERK

In the Supreme Court of the Gnited States

OCTOBER TERM, 1991

MICHAEL CZARNECKI, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

’ KATHLEEN A. FELTON

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

1. Whether the civil forfeiture of petitioner’s real

property, based on its use in the commission of a drug

offense for which petitioner was previously criminally

convicted, violates the Double Jeopardy Clause.

2. Whether it was reasonable for police officers to

move a truck to a professional garage in order to conduct

a warrant-authorized search of the truck that required

dismantling it.

TABLE OF CONTENTS

NEE SEIS

Issa scsisensscsunnshnsnmnansnsnanenseannosces

TABLE OF AUTHORITIES

Cases:

Bartkus v. Illinois, 359 U.S. 121 (1959) c.ecccccccccccccccoceccscoceceeeeees

Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663

Ne ceecusesastins

Chambers v. Maroney, 399 U.S. 42 (1970) cecccccccccccccsseseccoceseose.

Heath v. Alabama, 474 U.S. 82 (1985) v..ccccccccccscccssssessessesceceoeees

One Lot Emeral Cut Stones & One Ring v. United States,

EG RESETS A CC

State v. Casalicchio, 569 N.E.2d 916 (Ohio 1991) ..................

The Palmyra, 25 U.S. (12 Wheat) 1 (1827) coocccccccccccccececcoceseee.

United States v. A Parcel of Land With a Building Located

Thereon at 40 Moon Hill Road, Northbridge, Massachu-

setts, 884 F.2d 41 (Ist Cir. 1989) ooocececccccccccccccceccocecccoceeceeeeeees.

United States v. Certain Real Property and Premises

Known as 38 Whalers Cove Drive, 954 F.2d 29 (2d Cir.

ES EEE SAA OR

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

United States v. Janis, 428 U.S. 433 (1976) ceccecccccccccccoceceeeeee..

United States v. Leon, 468 U.S. 897 (1984) vocccccccccccceccccccosececeee.

United States v. McCaslin, 959 F.2d 786 (9th Cir. 1992) .......

United States v. One Assortment of 89 Firearms, 465 U.S.

i csabmoascouanem pes

IIT TH cialiiteisnduiiahancabinicsshoncesassiossennevonsoneisssansonénnatewasasarssiansnes

(III)

IV

Constitution and statutes:

U.S. Const.:

Amend. V (Double Jeopardy Clause) .0..........ccceseeeeeeeeees

Se Sea LED seveitsdenteninnntniioneninnrinemeninianinninnidintens

Be Ge MEE ED Gcrtnccinsiinemsavosertiicarnohintvenstedaistaciuesnamanoninain

In the Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-1531

MICHAEL CZARNECKI, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 3-11)

is unpublished, but the judgment is noted at 953 F.2d

633 (Table). The opinion of the district court granting

summary judgment in favor of the United States is

reported at 764 F. Supp. 9.

JURISDICTION

The judgment of the court of appeals was entered on

December 23, 1991. A petition for rehearing was

denied on January 30, 1992. The petition for a writ of

certiorari was filed on March 24, 1992. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

1. Based on information obtained from confidential

informants and a court-ordered wiretap, local police

and agents of the Drug Enforcement Administration

(DEA) in Providence, Rhode Island, learned that peti-

tioner, Paul Lamoureaux, and Edmund Proulx were

involved in the importation and distribution of large

quantities of marijuana. On January 5, 1990, the

wiretap indicated that Leopold DeMarco, the head of

the importation operation, was expecting a delivery.

On the following day, DEA agents followed a pick-up

truck from DeMarco’s home to the airport in War-

wick, Rhode Island. From there, they followed the

truck to petitioner’s home, where the truck pulled

into the garage. The agents arrested petitioner,

DeMarco, Lamoureaux, and Proulx in the driveway of

the house. After Proulx was advised of his Miranda

rights, he told the arresting agents that he was there

to unload marijuana from the truck. Pet. App. 6; C.A.

App. 35-36, 41-45.

The agents obtained a search warrant for both the

house and the truck. Inside the house they found

$33,000 in cash, a triple beam scale, plastic bags, and

tape. To search the truck, the officers transported it

to a garage in order to have it partially dismantled. In

the bed liner of the truck, the agents found 400 pounds

of marijuana. Pet. App. 6; C.A. App. 28, 93, 205, 302-

303.

Petitioner was charged with possession of 100 kilo-

grams or more of marijuana with intent to distribute

it, in violation of 21 U.S.C. 841(a)(1). Thereafter, he

moved to suppress various items of evidence, includ-

ing the marijuana found in the truck. Following an

evidentiary hearing, the district court denied those

motions. Pet. App. 7, 12-17. On November 27, 1990,

petitioner pleaded guilty to a charge of possession

3

with intent to distribute 100 kilograms or more of

marijuana. Jd. at 6-7. He was sentenced to five

years’ imprisonment, to be followed by four years’ su-

pervised release, and fined $10,000 plus costs of his

incarceration and supervised release ($16,986.72 and

$4,639.68, respectively). Jd. at 7.

2. On February 2, 1990, following the seizure of

petitioner’s residence pursuant to a warrant, the

government instituted a forfeiture proceeding against

petitioner’s real property, pursuant to 21 U.S.C.

881(a)(7).! Petitioner and his wife filed separate

claims to the property. On May 21, 1991, the district

court granted summary judgment in favor of the

United States, and subsequently ordered the property

forfeited. Pet. App. 7-8.

3. The court of appeals affirmed the forfeiture order

in an unpublished decision. Pet. App. 3-11. First, the

court found that the government had met its burden of

showing “a probable cause belief that there was a

‘substantial connection’ between the illegal drug ac-

tivity (including the 400 pounds of marijuana con-

cealed in the truck parked in the garage) and

[petitioner’s] residence.” Jd. at 8-9. Second, the court

rejected petitioner’s contention that the marijuana

' 21 U.S.C 881(a)(7) provides in pertinent part as follows:

(a) The following shall be subject to forfeiture to the

United States and no property right shall exist in them:

**e KK *

(7) All real property, including any right, title, and

interest (including any leasehold interest) in the

whole of any lot or tract of land and any appurte-

nances or improvements, which is used, or intended

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

facilitate the commission of, a violation of this

subchapter punishable by more than one year’s

imprisonment * * *.

4

found in the truck should have been suppressed

because the truck was removed from petitioner’s

premises before it was searched. Adopting the

findings of the district court in denying petitioner’s

suppression motion in the criminal prosecution, the

court of appeals concluded that the removal of the

truck was justified by the need to dismantle it in

order to search it. Jd. at 10-11.

Finally, the court of appeals rejected petitioner’s

contention that the forfeiture of his residence vio-

lated his double jeopardy rights because he had

previously been punished criminally for the same

conduct. Relying on United States v. A Parcel of

Land With a Building Located Thereon at 40 Moon

Hill Road, Northbridge, Massachusetts (40 Moon

Hill Road), 884 F.2d 41 (1st Cir. 1989), the court

stated that civil forfeiture proceedings are inherently

remedial and therefore do not constitute a second

punishment. Pet. App. 11.

ARGUMENT

1. Petitioner contends (Pet. 4-9) that the forfeiture

of his residence based on its use in drug activity

constitutes a second punishment, in violation of the

Double Jeopardy Clause as interpreted in United

States v. Halper, 490 U.S. 435 (1989). That contention

does not merit this Court’s review.

a. In Halper, this Court announced a “rule for the

rare case” in which a civil money penalty, imposed

after the defendant was previously convicted for the

same conduct, would violate the Double Jeopardy

Clause. 490 U.S. at 449. The defendant in Halper was

convicted and punished for submitting inflated Medi-

care claims; the government subsequently sued him

for civil penalties based on the same violations. The

government’s out-of-pocket loss from the false claims

5

was $585; the civil penalty liability totalled $130,000.

Id. at 441. Faced with the “tremendous disparity” be-

tween the government’s loss and the penalty imposed,

the Court held that the Double Jeopardy Clause re-

quired that the government make an accounting of its

“damages and costs to determine if the penalty sought

in fact constitutes a second punishment.” Id. at 448-

449. The Court indicated, in the face of the extreme

facts before it, that a civil penalty that is so divorced

from the government’s actual damages could “not

fairly be characterized as remedial, but only as a

deterrent or retribution.” Id. at 449.

Halper did not involve the traditional remedy of the

forfeiture of items that are used in the commission or

accomplishment of crimes, and the principles of

Halper are not applicable in that context. As the

Court explained in Calero-Toledo v. Pearson Yacht

Leasing Co., 416 U.S. 663 (1974), civil forfeiture

statutes have been a fixture in our jurisprudence

since before the adoption of the Constitution. Then,

as now, such statutes make subject to forfeiture

“virtually any type of property that might be used in

the conduct of a criminal enterprise.” Jd. at 683. The

forfeiture proceeding is deemed “independent of, and

wholly unaffected by any criminal proceeding in

personam.” Id. at 684, quoting The Palmyra, 25 U.S.

(12 Wheat.) 1 (1827).

A line of cases decided before Halper indicates that

civil forfeiture statutes are intended to be civil, reme-

dial measures, and not punitive. See United States v.

One Assortment of 89 Firearms, 465 U.S. 354, 362-366

(1984) (forfeiture of unlicensed firearms discourages

unregulated commerce in firearms and removes from

circulation firearms used outside regulated channels

of commerce); One Lot Emerald Cut Stones & One

Ring v. United States, 409 U.S. 232, 237 (1972)

6

(forfeiture of undeclared imported merchandise

prevents forbidden merchandise from circulating in

the United States, and provides a reasonable form of

liquidated damages). Nothing in Halper casts doubt

on the principle that civil forfeiture provisions are by

their nature remedial, and as such, they do not

implicate the Double Jeopardy Clause. See United

States v.40 Moon Hill Road, 884 F.2d 41, 48-44 (1st

Cir. 1989) (Halper is inapplicable to a civil forfeiture

proceeding under 21 U.S.C. 881(a)(7)); United States

v. McCaslin, 959 F.2d 786, 788 (9th Cir. 1992) (“Halper

has no application to the very ancient practice by

which instrumentalities of a crime may be declared

forfeit to the government.”).

b. Contrary to petitioner’s contention (Pet. 5-7),

the decision in this case does not conflict with the

decision of any other court. In United States v.

Sanchez-Escareno, 950 F.2d 198 (5th Cir. 1992), civil

forfeitures were not even involved. The defendants

claimed that their agreement to pay money penalties

for a customs infraction foreclosed a subsequent

criminal prosecution, even though they had failed to

make the payments that were promised. The court of

appeals rejected that claim, finding that no punish-

ment of any kind was exacted by the unfulfilled

agreement to pay a civil fine. 950 F.2d at 201-203.

In State v. Casalicchio, 569 N.E.2d 916 (Ohio 1991),

the defendant did object to a forfeiture and the state

supreme court held that the forfeiture of the

claimant’s automobile, after his conviction on drug

crimes, violated the Double Jeopardy Clause. The

court’s holding, however, was based on its conclusion

as a matter of state law that the forfeiture provision

imposed a criminal penalty and was not a civil,

Sy |

7

remedial measure.2. Unlike that state forfeiture

statute, however, the provision at issue here, 21

U.S.C. 881(a)(7), does not require a prior criminal

conviction and does not seek to impose punishment;

rather, it is applicable to real property that serves as

an instrumentality of crime because it “is used, or

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

or to facilitate the commission of” a narcotics felony.

Nor is there a conflict between the decision in this

case and United States v. Certain Real Property and

Premises Known as 38 Whalers Cove Drive, 954 F.2d

29 (2d Cir. 1991). The holding of that case is that the

civil forfeiture of the defendant’s residence under

federal law does not implicate the Double Jeopardy

Clause where the prior conviction was obtained under

state law. Jd. at 38. In light of the court’s applica-

tion of the dual sovereignty doctrine, see Heath v. Al-

abama, 474 U.S. 82 (1985); Bartkus v. Illinois, 359

U.S. 121 (1959), the court had no occasion to deter-

mine whether the forfeiture was a criminal penalty

under Halper. 954 I’.2d at 37-38. To be sure, the court

of appeals did indicate that Halper is applicable to

civil forfeitures, and it described at some length the

analysis that it thought appropriate in that setting.®

2 The state statute required a conviction for a felony as a

condition precedent to the forfeiture. That provision was,

therefore, aimed not at the property because it was used in

crime, but at the criminal defendant himself. The court thus

held that it was intended as an additional criminal penalty for

the underlying felony. 569 N.E.2d at 920-921.

’ The court stated that if the forfeited property “has been

used substantially to accomplish illegal purposes, so that the

property itself can be said to be ‘culpable’ or an instrumentality

of crime,” the forfeiture will not be presumed punitive. 954

F.2d at 36. In contrast, “[w]here the seized property is not

itself an instrumentality of crime, * * * and its total value is

overwhelmingly disproportionate to the value of controlled

8

As petitioner acknowledges, however, that discussion

was “dicta.” Pet. 5. The Second Circuit has never

applied that analysis in a concrete factual setting.

Moreover, even if the analysis suggested by the

Second Circuit (see note 3, swpra) were applied to this

case, it would not assist petitioner. The Second Cir-

cuit recognized that a forfeiture of property devoted

to crime “will not be presumed punitive,” 38 Whalers

Cove Drive, 954 F.2d at 36, given the legitimate his-

toric purpose of forfeiture “to remove instrumentali-

ties of crime from general circulation and prevent

further illicit use of harmful objects,” id. at 35.

Petitioner’s residence was an integral part of an

illegal drug operation. When it was searched, police

found $33,000 in cash, a triple beam scale, plastic bags,

and tape inside the house, and a load of marijuana in a

recently arrived truck in the garage. Pet. App. 6. In

light of the use of petitioner’s residence as a base for

narcotics trafficking, the government was entitled to

forfeit it as an instrumentality of crime.‘

substances involved in the statutory violation, there is a rebut-

table presumption that the forfeiture is punitive in nature.”

Ibid.

4 Petitioner asserts (Pet. 7) that the government did not

establish the value of the residence that was forfeited or

provide any evidence of the government’s cost of investigation.

Petitioner, however, cites no authority indicating that such a

showing was necessary. Even assuming that those values are

relevant where the residence is an instrumentality of crime,

unless there is a colorable showing that the civil remedy can be

said to be “overwhelmingly disproportionate to the damages”

petitioner caused, Halper, 490 U.S. at 449, there is no obligation

of any kind for the government to put on evidence of its costs.

See 38 Whalers Cove Drive, 954 F.2d at 36. A showing of

disproportion is plainly lacking here in light of petitioner’s

substantial marijuana operation.

9

2. Petitioner also argues (Pet. 9-13) that the court

of appeals erred in holding that the agents acted

reasonably in removing the truck to another location

in order to search it. He claims that the evidence of

the marijuana should have been suppressed in the

forfeiture proceeding, and that, without it, there was

insufficient evidence to show a substantial connection

between his residence and drug activity. That

factbound issue does not merit this Court’s review.

The court of appeals correctly held that the

evidence was admissible. The agents had a warrant

that authorized a search for marijuana and that

identified the truck as a place to be searched. The

search itself necessitated the partial dismantling of

the truck in order to open up the liner of the truck

bed. Pet. App. 14. Based on the testimony of an

experienced mechanic that the truck could not have

been safely or effectively searched without the special

equipment and expertise available only at a service

station, the district court found that it was reason-

able to seize the truck and take it to where it could be

searched safely and conveniently. Pet. App. 14-15.

Petitioner argues that the warrant did not autho-

rize the seizure and removal of the truck to another

location. This Court has held, however, that a war-

rantless search of an automobile, if it is supported by

probable cause, may be conducted at another location

from the one where the car was originally stopped.

Chambers v. Maroney, 399 U.S. 42, 52 & n.10 (1970).

The Court noted in that case that “fiJt was not

unreasonable * * * to take the car to the station

house” because the occupants had been arrested in a

dark parking lot late at night, and moving the car to

the police station served the interests of safety,

practicality, and convenience. Jd. at 52 n.10. In this

case, the search of the truck was authorized by a

10

warrant, and the district court similarly found that

the complexity of the search required moving the

truck for reasons of safety and convenience. Given

that the police had authority to search the truck,

Chambers establishes that the Fourth Amendment

does not prevent seizure of the truck for a search at a

professional garage.5

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, II]

Assistant Attorney General

KATHLEEN A. FELTON

Atiorney

JUNE 1992

5 Moreover, even assuming that suppression is available in

the remedial civil forfeiture proceeding here, cf. United States

v. Janis, 428 U.S. 433, 447 n.17 (1976), suppression would be

inappropriate where the officers reasonably relied on a valid

warrant to authorize the search. United States v. Leon, 468

U.S. 897 (1984). At the very least, the officers’ reliance on the

warrant was reasonable. The marijuana found in the truck was

therefore clearly admissible.