PUBLISH
UNITED STATES COURT OF APPEALS
Filed 8/19/96
TENTH CIRCUIT
United States of America,
Plaintiff-Appellee,
v. No. 95-1193
Johnny Joe Lopez,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 94-CR-193)
Submitted on the briefs:*
Michael G. Katz, Federal Public Defender, and Susan L. Foreman, Assistant Federal
Public Defender, Denver, Colorado for Defendant-Appellant.
Henry L. Solano, United States Attorney, and John M. Hutchins, Assistant United States
Attorney, Denver, Colorado for Plaintiff-Appellee.
*
In her brief counsel for Lopez requested oral argument. The government in its
answer brief waived oral argument. The case was later set for oral argument on May 15,
1996. On April 16, 1996, counsel for Lopez filed a motion to submit the case on the
briefs. This motion was granted on April 24, 1996, and on May 16, 1996, the case was
submitted to this panel without oral argument. See Fed. R. App. P. 34(a); 10th Cir. R.
34.1.9.
Before TACHA, Circuit Judge, BALDOCK, Circuit Judge, and McWILLIAMS, Senior
Circuit Judge.
McWILLIAMS, Senior Circuit Judge.
This case involves the jeopardy clause of the Fifth Amendment to the United
States Constitution.
On September 29, 1992, a federal parole violation arrest warrant was issued for
Johnny Joe Lopez, the appellant. It was executed on January 13, 1993, at Lopez’
apartment in Westminster, Colorado. An ensuing search of his apartment revealed eight
kilograms of cocaine, twenty kilograms of marijuana, approximately $100,000 in United
States currency, and a warranty deed conveying title to a residence located at 10736
Livingston Drive, Northglenn, Colorado, to Lopez.
The United States then filed a civil in rem forfeiture action pursuant to 21 U.S.C. §
881 and 18 U.S.C. § 981. The complaint sought forfeiture of the currency found in
Lopez’ apartment, his interest in the property located at 10736 Livingston Drive in
Northglenn, his automobile, and some additional items of personal property. The
government alleged that the items sought to be forfeited were used in, or were proceeds
of, Lopez’ drug activities. A settlement was reached in this proceeding whereby Lopez
agreed to forfeit the currency found in his apartment, a car, jewelry, the residence on
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Livingston Drive, and various items of personal property. A final order and judgment of
forfeiture was entered on September 23, 1993.
On September 22, 1994, the United States filed a two-count indictment against
Lopez, charging him with the unlawful possession of cocaine and marijuana with an
intent to distribute each, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The
indictment was based on the eight kilograms of cocaine and the twenty kilograms of
marijuana found in Lopez’ apartment on January 13, 1993.
The parties thereafter entered into a plea bargain whereby Lopez agreed to plead
guilty to a one-count information charging him with interstate travel in aid of a
racketeering enterprise in violation of 18 U.S.C. § 1952(a)(1) and 18 U.S.C. § 2. Lopez
further agreed to provide testimony before the grand jury regarding the source of the
drugs. The government, in turn, agreed to dismiss the original indictment.1 On
November 29, 1994, Lopez pleaded guilty to the one-count information.
On January 27, 1995, Lopez filed a motion to dismiss the indictment, which had
not yet been dismissed, alleging that the double jeopardy clause of the Fifth Amendment
barred his criminal prosecution, because that prosecution was based upon the same
“offense or conduct” as that relied upon in the prior civil forfeiture proceeding. At oral
argument on the motion to dismiss, counsel indicated that if the court denied the motion
1
The plea bargain contained a stipulation that during January, 1993, Lopez
traveled from Colorado to Texas to make payment for the delivery of eight kilograms of
cocaine to Colorado.
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to dismiss, Lopez would still stand on his guilty plea to the one-count information, since
Lopez basically sought only to avoid any imprisonment.
On March 23, 1995, the district court denied Lopez’ motion to dismiss the
indictment. In so doing, the district court stated that Lopez had failed to show that
prosecution for interstate travel in aid of a racketeering enterprise in violation of 18
U.S.C. § 1952(a)(1) was the “same offense” as the civil forfeiture proceeding, citing
Blockburger v. United States, 284 U.S. 299, 304 (1932). Specifically, the district court
held that under 18 U.S.C. § 1952(a)(1), the government must show, inter alia, that Lopez
“traveled ... in interstate or foreign commerce” in aid of a racketeering enterprise, and that
such was not an essential element of the civil forfeiture proceeding brought under 21
U.S.C. §§ 881(a)(6) and (a)(7). Conversely, the district court found that in the civil
forfeiture proceeding the government must show, inter alia, that the property sought to be
forfeited was used to facilitate a drug offense or was traceable to drug activities, neither
of which was an essential element of 18 U.S.C. § 1952(a)(1). A motion to reconsider
was denied.
At sentencing on May 5, 1994, the district court expanded a bit on its prior ruling
and stated that neither the two-count indictment charging possession of cocaine and
marijuana nor the one-count information charging interstate travel in aid of a racketeering
enterprise charged the “same offense”as that charged in the civil forfeiture proceeding.
The court then sentenced Lopez to imprisonment for sixty months. On that same day, the
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district court, in accord with the plea bargain, dismissed the two-count indictment against
Lopez.
The Fifth Amendment to the United States Constitution provides, in pertinent part:
“nor shall any person be subject for the same offense to be twice put in jeopardy of life
or limb . . . .” The foregoing constitutional provision has been held to encompass three
separate guarantees: (1) it protects against a second prosection for the same offense after
a prior acquittal; (2) it protects against a second prosection for the same offense after a
prior conviction; and (3) it protects against multiple punishments for the same offense.
Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 306-7 (1984).
In his motion to dismiss, Lopez sought to dismiss the indictment, and not the
information. At the time the motion to dismiss was filed, Lopez had in fact entered a plea
of guilty to interstate travel in aid of a racketeering enterprise, and the government had
agreed to dismiss the criminal indictment, which it later did. Be that as it may, the
district court initially treated the motion to dismiss as challenging the information. As
above stated, in denying the motion to dismiss, the district court held that the prior civil
forfeiture action involved essential elements not present in the interstate travel offense,
and vice versa. At sentencing, the district court, as indicated, elaborated a bit, and held
that the prior civil forfeiture proceeding involved essential elements not present in the
charges set forth in the indictment, i.e., unlawful possession of cocaine and marijuana, as
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well as the information.
Subsequent to the district court’s judgment in the instant case, the Supreme Court,
on June 24, 1996, announced its decision in United States v. Ursery, et. al., ____ U.S.
____, 116 S. Ct. 2135 (1996). We believe Ursery is depositive of the present appeal.
In Ursery, the government argued that the civil forfeiture of property was not the
“same offense” as the ensuing criminal prosecution and that the double jeopardy
protection against multiple punishments for the same offense was not an issue in the case.
The Supreme Court declined to address that particular argument because it concluded that
the “civil forfeitures involved in these cases do not constitute punishment under the
Double Jeopardy Clause ...” Ursery, 116 S.Ct. at 2140. In other words, since the civil
forfeiture in Ursery was not “punishment” for double jeopardy purposes, the Supreme
Court did not reach the question of whether the civil forfeiture was the “same offense” as
the criminal charge. The Court stated that only if the civil forfeiture in a given case was
so potentially punitive as to constitute punishment, would a court need to address the
further question of whether the civil forfeiture was the “same offense” as the criminal
one. Id. at 2142. Because, in the instant case, we ultimately find that under Ursery the
civil forfeiture was not “punishment”, we do not need to address the reason given by the
district court for its denial of the motion to dismiss; viz., that the civil forfeiture action
was not for the same offense as set forth in either the indictment or the information. So,
we will resolve the present appeal on the same ground as that used by the Supreme Court
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in Ursery.2
Ursery involved two cases, one from the Sixth Circuit, United States v. Ursery, 59
F.3d 568 (6th Cir. 1995), and one from the Ninth Circuit, United States v. $405,089.23
United States Currency, 33 F.3d 1210 (9th Cir. 1994). In the Sixth Circuit case,
Michigan police found marijuana growing next to Ursery’s house, and discovered
marijuana seeds, stems, stalks and a “growlight” inside the house. The government then
instituted civil forfeiture proceedings against the house, alleging that the house had been
used to facilitate the unlawful possession and distribution of marijuana. Ursery ultimately
paid the United States $13,250 to settle the forfeiture claim in full. Shortly before the
forfeiture proceeding was settled, Ursery was indicted for manufacturing marijuana, in
violation of 21 U.S.C. § 841(a)(1). A jury convicted him of the criminal charge and he
was sentenced to 63 months in prison. The Sixth Circuit Court of Appeals reversed
Ursery’s conviction on the criminal charge, holding that his conviction violated the
Double Jeopardy Clause of the Fifth Amendment.
In the Ninth Circuit case, Charles Wesley Arlt and James Wren were convicted of
various counts of conspiracy and money laundering. Arlt and Wren were both sentenced
to life in prison. Before the criminal trial had started, the government filed a civil in rem
complaint against various items of property seized from, or titled to, Arlt and Wren. The
2
Our approach to this appeal should not be construed as indicating that the district
court’s reasoning that the civil forfeiture proceeding involved essential elements not
present in the charges in the indictment or information, and vice versa, was faulty.
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parties agreed to defer litigation of the forfeiture proceeding during the criminal
prosecution. More than a year after the conclusion of the criminal prosection, the district
court granted the government’s motion for summary judgment in the civil forfeiture
proceeding. On appeal, the Ninth Circuit reversed the grant of summary judgment to the
government in the forfeiture proceeding, holding that the forfeiture violated the Double
Jeopardy Clause of the Fifth Amendment, that such forfeiture constituted punishment,
and that Arlt and Wren had already been “punished” by the life sentences imposed in the
prior criminal prosecution.
As indicated, the Supreme Court in Ursery reversed both the Sixth and Ninth
Circuits. In so doing, the Supreme Court used a two-part test to determine whether civil
forfeiture constituted “punishment” for Double Jeopardy purposes. Ursery, 116 S.Ct. at
2147. The Court first asked whether Congress intended proceedings under the forfeiture
provisions to be criminal or civil. In the second prong, the Court inquired whether the
forfeiture proceedings were “so punitive in fact as to ‘persuade us that the forfeiture
proceeding[s] may not legitimately be viewed as civil in nature,’ despite Congress’
intent.” Id.
Applying that test to the facts of Ursery, the Court then went on to state that
“[t]here is little doubt that Congress intended these forfeitures to be civil proceedings”.
Id. As concerns the second part of the two-pronged test, the Supreme Court stated “there
is little evidence, much less the ‘clearest proof’ that we require . . . suggesting that the
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forfeiture proceedings . . . are so punitive in form and effect as to render them criminal
despite Congress’ intent to the contrary.” Id. at 2148. Having thus concluded, the
Supreme Court held in each case that “these in rem civil forfeitures are neither
‘punishment’ nor criminal for purposes of the Double Jeopardy Clause.” Id. at 2149. The
Court’s basic rationale was that the civil in rem forfeitures there involved were remedial
civil sanctions, distinct from potentially punitive in personam civil penalties, such as
fines, and were not “punishment,” as such, under the Double Jeopardy Clause.
The instant case is, in our view, indistinguishable from Ursery, supra, and on that
basis we affirm the judgment of the district court.
Judgment affirmed.
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