# Opposition Brief — Czarnecki v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0388%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1992 - **Citation:** 505 U.S. 1219 ## Text 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0388%3A2. Public record. Not legal advice.