PUBLISH
UNITED STATES COURT OF APPEALS
Filed 6/10/96 TENTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) No. 96-1023
)
OSMAY PEREZ-HERRERA, )
)
Defendant-Appellant. )
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 92-CR-248)
John Hutchins, Assistant United States Attorney (Henry L. Solano, United States
Attorney, and Joseph T. Urbaniak, Jr., OCDETF Coordinator, Assistant United States
Attorney, with him on the brief), Denver, Colorado, for Plaintiff-Appellee.
Jeralyn E. Merritt, Denver, Colorado, for Defendant-Appellant.
Before BALDOCK, BRORBY, and EBEL, Circuit Judges.
BALDOCK, Circuit Judge.
Defendant Osmay Perez-Herrera appeals the district court’s order deferring ruling
on his Motion to Bar Prosecution on Double Jeopardy grounds. We exercise jurisdiction
under 28 U.S.C. § 1291, and the collateral order exception to the final-judgment rule,
Abney v. United States, 431 U.S. 651 (1977), and remand for further proceedings
consistent with this opinion.
I.
In August 1990, the government initiated judicial forfeiture proceedings pursuant
to 21 U.S.C. § 881 on a 1983 Peterbilt Semi-Tractor-Trailer. The government did not
notify Defendant of the forfeiture proceedings, but did notify Crossroads Transport,
which the government asserts was the registered owner of the Tractor-Trailer. Defendant
did not file a claim or answer or contest the judicial forfeiture proceedings. The district
court forfeited the Tractor-Trailer to the United States in a December 9, 1991 order.
In July 1992, a grand jury indicted Defendant and co-defendant Jorge Carlos
Rodriquez for federal cocaine offenses. In January 1993, the Drug Enforcement
Administration (“DEA”) initiated administrative forfeiture proceedings against a 1983
Jeep Grand Cherokee, which it believed Defendant purchased with drug funds. It is not
clear from the record whether the government notified Defendant of the forfeiture
proceedings. Defendant did not file a claim of ownership in the forfeiture proceeding.
The DEA administratively forfeited the jeep on January 4, 1993.
In July 1994, the grand jury returned a nine-count superseding indictment charging
Defendant with conspiracy to possess with intent to distribute and to distribute cocaine,
21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846, possession with intent to distribute cocaine, 21
U.S.C. §§ 841(a)(1), (b)(1)(A), and engaging in a continuing criminal enterprise, 21
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U.S.C. § 848.
In June 1995, Defendant filed a Motion to Bar Prosecution on Double Jeopardy
grounds. He argued that the government was impermissibly subjecting him to multiple
punishment for the same offenses, in violation of the Fifth Amendment Double Jeopardy
Clause. Defendant maintained that the government first punished him for the underlying
drug offenses by forfeiting the two vehicles, and sought to punish him a second time for
the same offenses through criminal prosecution. Defendant requested the court bar
prosecution and dismiss the indictment.
On January 2, 1996, the district court entered an order deferring ruling on
Defendant’s Motion to Bar Prosecution until after the criminal trial. The court
determined the motion was premature, stating:
that because the only aspect of the double jeopardy clause involved in this
case is double punishment and because the trial of the case does not involve
punishment and the issue of punishment only arises after there are verdicts
or findings of guilty on counts which may relate to the bases for civil
forfeiture, the motions are premature and should be reserved for
determination prior to sentencing.
This appeal followed.
II.
The parties dispute our jurisdiction to hear this interlocutory appeal. We review
jurisdictional questions de novo as a question of law. United States v. Maher, 919 F.2d
1482, 1485 (10th Cir. 1990). Defendant asserts 28 U.S.C. § 1291 and the collateral order
exception to the final-judgment rule, Abney v. United States, 431 U.S. 651 (1977),
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empower this court to review the district court’s deferral order. The government responds
that the collateral order exception is inapplicable, and maintains that this court lacks
jurisdiction. We agree with Defendant.
A.
We recently exercised jurisdiction over an interlocutory appeal from a district
court’s pretrial order in a double jeopardy case involving facts nearly identical to the
instant case. United States v. German, 76 F.3d 315 (10th Cir. 1996). In German, as in
this case, the government forfeited assets owned by the defendant, and then sought to
prosecute defendant for the underlying drug offense. The defendant moved to dismiss the
indictment on double jeopardy grounds, and the district court denied the motion.
On appeal, the government argued that we lacked jurisdiction to review the district
court’s order. We rejected the government’s argument, concluding that “[o]ur authority
to hear the appeal stems from Abney.” German, 76 F.3d at 316; see Abney, 431 U.S. at
659-62 (holding that a pretrial order denying a motion to dismiss an indictment on double
jeopardy grounds falls within the collateral order exception to the final-judgment rule and
is therefore immediately appealable).
Abney and German control the jurisdictional question in this appeal. The fact that
the district court deferred ruling on Defendant’s Motion to Bar Prosecution, rather than
denying the motion, is, as the government put it, “one of those true distinctions without a
difference, as far as either a deferral or a denial would cause a defendant to go through
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another trial.” Aplee Br. at 7. Whether the court denied the motion, or deferred ruling
on the motion, the effect is the same--Defendant must “endure the personal strain, public
embarassment, and expense of a criminal trial” which he asserts violates the Double
Jeopardy Clause of the Fifth Amendment. Abney, 431 U.S. at 661. As in Abney, “[t]here
are simply no further steps that can be taken in the District Court to avoid the trial the
defendant maintains is barred by the Fifth Amendment’s guarantee.” Abney, 431 U.S. at
659. Accordingly, the district court’s deferral order on the double jeopardy issue is
tantamount to a denial order, and meets the collateral order exception to the final
judgment rule. See id. at 659-62. We therefore have jurisdiction over the instant appeal.
See id.; German, 76 F.3d at 316.
B.
The district court concluded Defendant’s Motion to Bar Prosecution was
premature because a jury had not found Defendant guilty of the underlying drug offenses.
Under Witte v. United States, 115 S. Ct. 2199 (1995), however, Defendant’s Motion to
Bar Prosecution was ripe for ruling by the district court before trial, notwithstanding the
fact that Defendant had not been convicted of the drug offenses. Id. at 2205 (“This claim
is ripe at this stage of the prosecution . . . if Petitioner is correct that the present case
constitutes a second attempt to punish him criminally for the same cocaine offenses, . . .
then the prosecution may not proceed.”). We therefore agree with Defendant that the
district court should have ruled on his Motion to Bar Prosecution. Because the district
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court did not rule on the Motion, the record is insufficiently developed on the Double
Jeopardy issue. We therefore REMAND to the district court with instructions to conduct
further proceedings consistent with this opinion and rule on Defendant’s Motion to Bar
Prosecution.
REMANDED for further proceedings consistent with this opinion.
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