Double Jeopardy and Forfeiture

Does this Louisiana decision address any arguments regarding the double jeopardy issues surrounding asset forfeiture that were left unexplored in the Holgerson Road case?

632 So.2d 1221 (La. Ct. App. 1994)

LINDSAY, Judge.

The appellant, Frank L. Wilson, was arrested for possession of cocaine with intent to distribute. During the course of his drug arrest, his 1979 Cadillac and $24 in cash were seized. The appellant subsequently pled guilty to attempted possession of cocaine and was sentenced to serve one year in prison. Thereafter, pursuant to a civil forfeiture action filed by the state, the trial court ordered the forfeiture of appellant's Cadillac and the $24 in cash. The appellant appeals from that judgment, arguin g that the forfeiture is a second punishment for the same offense and is violative of protections against double jeopardy contained in the state and federal constitutions. For the following reasons, we reverse.

FACTS

On April 10, 1991, Officer Allen B. Pierce of the Shreveport Police Department observed the appellant driving his 1979 Cadillac northbound on the Clyde Fant Parkway in Shreveport, Louisiana. The appellant was exceeding the posted speed limit. Officer Pierce activated the flashing lights on his patrol car and began pursuit. The appellant continued to travel northbound at approximately the same rate of speed. Officer Pierce observed the appellant throw a plastic bag from the passenger side of the vehicle. The appellant continued along the parkway until he reached a parking lot at Lake Street. He then stopped and parked his vehicle.

Other officers arrived to assist Officer Pierce. The appellant was placed under arrest. A search of his person yielded $24 in cash. In the vehicle, the officers found a test tube containing a white powder residue, which was determined to be cocaine, and a .38 caliber handgun. Officer Pierce went back to the point on the parkway where the appellant threw the plastic bag from his vehicle. The bag was retrieved and was found to contain seventeen smaller plastic bags, each containing cocaine.

The appellant was charged with possession of cocaine with intent to distribute. On June 11, 1991, he entered a plea of guilty to the lesser charge of attempted possession of cocaine. [On August 16, 1991, he received a sentence of one year at hard labor.]

In the meantime, on June 10, 1991, the state filed a petition for an in rem forfeiture of the appellant's vehicle and the money taken from him at the time of his arrest. The petition alleged that the vehicle was used to facilitate the possession, transportation and concealment of cocaine and that the $24 was "the proceeds of a felony drug sale or was used to facilitate [a] felony drug purchase or sale." Therefore, the state contended that the automobile and the cash were subject to forfeiture under LSA-R.S. 40:2601, et seq.

A forfeiture hearing was held on July 20, 1992. The facts concerning the appellant's guilty plea to attempted possession of cocaine were placed before the court.... It was also shown that the appellant's vehicle was purchased for $2,800 and had an odometer reading of 180,000 miles. Further, a towing fee of $50 and storage fees of $2,454.50 had been incurred up to the date of the forfeiture hearing.... The trial court signed a judgment on August 14, 1992, ordering the forfeiture of the automobile and the $24 in cash.

The appellant appealed suspensively. In this court he again contends that the forfeiture of his vehicle violates the double jeopardy provisions of the United States and Louisiana constitutions.

A person cannot twice be placed in jeopardy for the same offense. U.S. Const. amend. V; La. Const. art. I.,  15; LSA-C.Cr.P. Art 591. It is well established that the double jeopardy clause of the U.S. Constitution protects against three distinct abuses: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; (3) multiple punishments for the same offense. The appellant claims that the forfeiture of his automobile violates the multiple punishment prong of the double jeopardy clause. He asserts that he has already been punished for his cocaine offense in the criminal proceedings and he is now being punished again for the same offense by the forfeiture of his automobile. We find that, under the facts of this case and in light of the recent pronouncements on the issue of forfeitures by the United States Supreme Court in United States v. Halper, 490 U.S. 435 (1989), and Austin v. United States, --- U.S. ----, 113 S.Ct. 2801 (1993), the forfeiture of the automobile does constitute punishment in violation of the double jeopardy clause.1 [Louisiana courts have] recognized a distinction between contraband per se, i.e., objects, the possession of which, without more, constitutes a crime; and other items [, classified as derivative contraband,] which are legal to possess but are treated as contraband because they are used in the commission of a crime....

LSA-R.S. 40:2603 and 2604 set forth the conduct giving rise to a forfeiture and list property subject to forfeiture, i.e., contraband per se and derivative contraband. LSA-R.S. 40:2612 also provides that a civil in rem forfeiture proceeding may be brought against such property which is to be seized. In an in rem proceeding, pursuant to LSA-R.S. 40:2612, the state has the initial burden of proving the existence of probable cause for the forfeiture of the property. If the state establishes probable cause to justify the forfeiture, then the claimant has the burden of showing, by a preponderance of the evidence, that the claimant's interest in the property is not subject to forfeiture....

The jurisprudence provides that the double jeopardy clause does not apply to civil forfeiture proceedings where the forfeiture can properly be characterized as remedial. The definition of "remedial" is essential to the decision of this case.

In United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984), the defendant was charged with dealing in firearms without a license. Even though the defendant was acquitted of the criminal charges, the government instituted civil in rem forfeiture proceedings against the firearms. The United States Supreme Court found that the purpose of the statute under consideration was to keep dangerous weapons out of the hands of unlicensed dealers and that this purpose was remedial. Therefore, the Court found that the forfeiture was not barred by double jeopardy because the forfeiture of dangerous weapons is remedial in nature and does not constitute punishment.

In One Lot Emerald Cut Stones v. United States, 409 U.S. 232 (1972), the United States Supreme Court considered whether the forfeiture of jewels brought into the United States without paying customs duties was violative of the double jeopardy clause. Although the owner of the jewels was acquitted on federal charges of smuggling the items into the United States with the intent to defraud the government, the Supreme Court rejected the argument that the forfeiture violated the constitutional guarantee against double jeopardy. The Court [found] that the forfeiture of the jewels served a remedial purpose, stating as follows: "It prevents forbidden merchandise from circulating in the United States, and, by its monetary penalty, it provides a reasonable form of liquidated damages for violation of the inspection provisions and serves to reimburse the Government for investigation and enforcement expenses. In other contexts we have recognized that such purposes characterize remedial rather than punitive sanctio ns...."

The import of United States v. One Assortment of 89 Firearms, and One Lot Emerald Cut Stones v. United States, is that double jeopardy did not occur because the property taken was contraband per se, not derivative contraband, and the forfeiture was solely remedial. The actual possession of the firearms by an unlicensed dealer was illegal, as was the possession of the stones upon which customs duties had not been paid.

In United States v. Halper, the United States Supreme Court held that the double jeopardy clause prohibits a second sanction that may not be fairly characterized as remedial. In Halper, the manager of a medical laboratory which provided services to Medicare patients submitted 65 false Medicare claims totalling $585. The defendant was indicted and convicted under federal law for filing false claims. The federal law under which the defendant was convicted also provided for the imposition of civil sanctions. The government instituted an action to collect civil penalties of $2,000 for each violation, totalling $130,000, an amount far in excess of the aggregate amount of the false claims made....

In finding that the sanctions imposed upon the defendant in the Halper case violated the double jeopardy clause, the United States Supreme Court focused on the fact that the amount of the sanction was greatly disproportionate to the amount received by the defendant in making the false claims. The Court stated that civil, as well as criminal, sanctions constitute punishment when the sanction, as applied in the individual case, serves the goal of punishment. The Court stated that a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment. [U]nder the double jeopardy clause, a defendant who has already been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not be fairly characterized as remedial, but only as a deterrent or retribution....

Halper stated that the only proscription established by the ruling is that the Government may not criminally prosecute a defendant, impose a criminal penalty upon him, and then bring a separate civil action based on the same conduct and receive a judgment that is not rationally related to the goal of making the Government whole....

In Austin v. United States, the United States Supreme Court provided further guidance as to the meaning of "punishment" and "remedial" and the occasions when the double jeopardy clause may prohibit forfeitures as constituting additional punishment....

In Austin, the Supreme Court rejected the same claims relied upon by the state and the dissent in the instant case, i.e., that the forfeiture of derivative contraband is remedial. The Court found that the forfeiture of instrumentalities of a drug offense, derivative contraband such as residences or automobiles, is not remedial and constitutes punishment. The court stated:

The Government argues that [the forfeiture statutes] should be considered remedial in two respects. First, they remove the "instruments" of the drug trade thereby protecting the community from the threat of continued drug dealing. Second, the forfeited assets serve to compensate the Government for the expense of law enforcement activity and for its expenditure on societal problems such as urban blight, drug addiction, and other health concerns resulting from the drug trade. In our view, neither argument withstands scrutiny. Concededly, we have recognized that the forfeiture of contraband itself may be characterized as remedial because it removes dangerous or illegal items from society. The Court, however, previously has rejected government's attempt to extend that reasoning to conveyances used to transport illegal liquor....

The Government's second argument about the remedial nature of this forfeiture is no more persuasive. We previously have upheld the forfeiture of goods involved in customs violations as a reasonable form of liquidated damages. But the dramatic variation in the value of conveyances and real property forfeitable under  881(a)(4) and (a)(7) undercut any similar argument with respect to those provisions....

Simply stated, the United States Supreme Court reasoned that the forfeiture of derivative contraband is not remedial....

Although not specifically deciding a double jeopardy claim in Austin, the Court's reasoning makes it clear that double jeopardy applies in the instant case because forfeiture of derivative contraband is not solely remedial, and therefore it constitutes punishment.... Pursuant to the reasoning in Austin, we are compelled to find that the double jeopardy clause of the state and federal constitutions apply to this case....

Further, we find that under the "same evidence" test discussed above, double jeopardy applies in this case. LSA-R.S. 40:2603 provides that the conduct giving rise to forfeiture is "an act or omission punishable by confinement for more than one year under R.S. 40:961, et seq., whether or not there is a prosecution or conviction related to the act or omission." LSA-R.S. 40:961, et seq., are the statutes in this state proscribing illegal drug activity. Under the clear wording of our state's forfeiture statute, all of the state statutes prohibiting illegal drug activity which carry a penalty of confinement for more than one year have been incorporated and made the foundation of forfeitures.

The facts of the present case are distinguishable from United States v. Millan, 2 F.3d 17 (2d Cir.1993), which held that a forfeiture and a criminal prosecution did not violate double jeopardy principles because, in that case, the criminal indictment and the forfeiture constituted a single proceeding against the defendant. In Millan, the government charged the defendants with conspiracy to distribute massive amounts of cocaine and, in the same indictment, included a criminal forfeiture count for properties derived from or used to facilitate drug violations. The defendants settled the forfeiture count, thereby forfeiting some of the seized property. Then the defendants claimed that they had already been punished and the government's action in proceeding with the criminal charge of conspiracy to distribute cocaine violated their rights against being subjected to double jeopardy. The court found that the forfeiture and the criminal prosecution were "but different prongs of a single prosecution."

In the present case, the state did not employ a single proceeding to prosecute the defendant on the criminal charge and to obtain the forfeiture of the automobile. The defendant was charged with and pled guilty to the criminal charge and was sentenced accordingly. Unlike the Millan case, the forfeiture was not made a part of the criminal indictment, but was instituted in a separate in rem civil proceeding. Here, the prosecution has consistently argued that the forfeiture proceeding was a separate civil action.... [T]he prosecution has not employed a single proceeding against the defendant to obtain both the criminal conviction and the forfeiture. Thus, it cannot be said that the forfeiture and the criminal prosecution were different prongs of a single prosecution. Therefore, the forfeiture in the present case constitutes an additional punishment and violates double jeopardy....

We do not hold that all derivative contraband forfeitures are prohibited.... We perceive no reason why a procedure could not be developed and implemented, creating a single proceeding which would solve the double jeopardy problem and thereby allow the forfeiture of the derivative contraband used by drug offenders.

CONCLUSION

For the reasons stated above, we find that the forfeiture of the appellant's automobile is barred by the prohibitions against double jeopardy. Therefore, the judgment of the trial court ordering forfeiture of the automobile is reversed. The property, or its value, is ordered restored to the appellant.2

REVERSED.

SEXTON, Judge, concurring.

I agree with the holding in this opinion that Austin v. United States, and United States v. Halper, require a determination that a subsequent civil forfeiture by a sovereign that has previously obtained a criminal conviction amounts to double jeopardy under the United States Constitution. Try as I might, I have been unable to intellectually avoid these United States Supreme Court holdings in my consideration of the instant case.

There are obvious ways to avoid the Austin/Halper mandate, but implementation will take time. Thus, there will once again be significant disruption in the asset forfeiture process as a result of what I suggest are intellectual gymnastics. Nevertheless, from a practical standpoint, we will eventually return to the present situation with little, if any, theoretical advancement of the law.

I, therefore, reluctantly agree with this opinion.

HIGHTOWER, Judge, dissenting.

This ruling will effectively preclude, on double jeopardy grounds, all derivative contraband forfeitures instituted subsequent to prosecution....

The double jeopardy analysis crafted in Halper, supra, a civil fines case discussing the Fifth Amendment, prohibits a second sanction to the extent, and only to the extent, that it cannot fairly be characterized as remedial. Conversely, to the extent that a remedial purpose is served, the procedure will clear the double jeopardy bar.

Irwin Halper, importantly, faced a civil penalty ($2,000 for each of 65 separate false Medicare claims) designed to substitute for the government's recovery of damages following, and caused by, the fraudulent acts committed upon the United States Government. Yet, notwithstanding this remedial goal of compensation, the resulting sum overwhelmed any realistic estimate of the government's pecuniary loss, leading the court to presume the sanction to be punitive.

[I] do not deem the present circumstances to depict that "rare case" implicating the Double Jeopardy Clause. Rather, the forfeiture of appellant's relatively antiquated automobile is not--borrowing the language and reasoning of Halper--so "overwhelmingly disproportionate" to the damages caused, nor so " extreme[ly] ... divorced" from any proper remedial purpose as to offend the Fifth Amendment....

Under the majority decision, a forfeiture of "derivative contraband" can never be remedial. This rationale, however, fails to recognize that each Bill of Rights protection demands separate, distinct considerations in its application. For instance, upon identifying a breach of the Excessive Fines Clause of the Eighth Amendment, the ensuing remedy simply reduces the sanction. On the other hand, consistent with the present opinion, a double jeopardy violation of the Fifth Amendment triggers an absolute bar to the second proceeding. Logically, then, the same standard should not control both Eighth and Fifth Amendment issues, nor can the Austin excessive fines test apply in a double jeopardy analysis.

I respectfully dissent.

VICTORY, Judge, dissenting.

The majority seems to conclude that a sanction that is not solely remedial must be solely punishment. But, as we know from Halper and Austin, civil sanctions may advance punitive and remedial goals at the same time....

Here, the record shows that at the time of forfeiture Wilson's car had 180,000 miles on it and was worth only $2,800 when purchased by him. We can easily conclude that the forfeiture of the car is rationally related to the remedial goal of compensating the government for its costs in investigating and prosecuting Wilson, and is not so "overwhelmingly disproportionate" to those costs as to implicate the double jeopardy clause.

Even if we could not make such a determination from this record, we would be required to follow Halper and remand to the trial court for a determination of the government's costs arising from the investigation and prosecution of Wilson. If the government's costs were shown to exceed the value of the forfeited automobile, per Halper there would be no double jeopardy violation because recouping government costs is remedial, not punitive. If the automobile's value was shown to have exceeded the government's costs, the trial court would have to decide if the value of the forfeited automobile was so "overwhelmingly disproportionate" to the "rough remedial justice" standard of Halper that a reimbursement to the defendant was required for the excess.

1. No objection has been raised by either party to the traditional double jeopardy analysis. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), employs the "same elements" test and specifies that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. In United States v. Dixon, --- U.S. ----, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) the United States Supreme Court reaffirmed its reliance on the Blockburger test in evaluating double jeopardy claims, but it overruled Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.E d.2d 548 (1990), which had also incorporated the broader "same conduct" test. However, in Louisiana the similar "same evidence" test continues to be applied in evaluating double jeopardy claims. State v. Carouthers, 607 So.2d 1018 ((La.App. 3d Cir.1992); State v. Powell, 598 So.2d 454, 469 (La.App. 2d Cir.1992). The test provides that if the evidence necessary to support the second charge would have been sufficient to support the former charge, double jeopardy prohibits the second prosecution. State v. Girouard, 615 So.2d 29 (La.App. 3d Cir.1993).

2. In its supplemental brief, the State informed this court that the 1979 Cadillac, which is the subject of the forfeiture in this case, had been sold by mistake.