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No. 95-1568
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * District of North Dakota.
*
Dean J. Smith, *
*
Appellant. *
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Submitted: October 17, 1995
Filed: January 31, 1996
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Before WOLLMAN, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD,
Circuit Judges.
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MORRIS SHEPPARD ARNOLD, Circuit Judge.
Dean J. Smith appeals from his conviction for distributing
methamphetamine, arguing that the criminal proceeding against him
subjected him to double jeopardy in violation of the Fifth
Amendment to the United States Constitution. We affirm the
district court.1
I.
On September 21, 1994, the United States filed an indictment
charging Mr. Smith with two counts of distributing methamphetamine,
the first of which laid the relevant events at 341 20th Street
North, Fargo, North Dakota, and the second of which laid them at
1
The Honorable Rodney S. Webb, Chief Judge, United States
District Court for the District of North Dakota.
102 24th Street South, also in Fargo. Two days later the United
States initiated a civil forfeiture action against Mr. Smith's
house located at 117 4th Avenue East, West Fargo, North Dakota,
alleging that Mr. Smith had used the house to facilitate illegal
drug transactions in violation of 21 U.S.C. § 881(a)(7). An
affidavit attached to the complaint stated, inter alia, that Mr.
Smith confessed to police that he had repeatedly received drugs at
that address. The affidavit also mentioned the two incidents
alleged in the indictment, though no connection between them and
the house was drawn.
Mr. Smith pleaded guilty to count one of the indictment. He
also stipulated to a settlement of the forfeiture. Mr. Smith later
moved to dismiss the indictment on the grounds that the criminal
prosecution violated his right to be free from double jeopardy
because of the civil forfeiture proceeding. The district court
concluded that Mr. Smith's double jeopardy rights were not violated
and denied the motion.
In the discussion that follows, we assume, without deciding,
that jeopardy attached in the civil forfeiture proceeding before it
attached in the criminal matter, for otherwise Mr. Smith's double
jeopardy claim is not even colorable.
II.
The Fifth Amendment provides that no person shall "be subject
for the same offence to be twice put in jeopardy of life or limb."
U.S. Const. Amend. V. It appears to us, first of all, that the
criminal proceeding of which Mr. Smith complains was for different
conduct from that that provided the predicate for the forfeiture
proceeding, and thus it did not involve "the same offence" as that
proceeding. The methamphetamine sales for which Mr. Smith was
indicted appear to have occurred at locations away from the
forfeited property, and thus had no factual connection with the
forfeited property's facilitation, if any, of drug dealing.
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Because the civil penalties and criminal punishment were seemingly
not imposed for the same conduct in this case, it is not easy to
see how it presents a double jeopardy issue. See United States v.
Mathis, 980 F.2d 496, 497 (8th Cir. 1992). The government,
however, failed to argue this point below, and we are therefore
reluctant to base our decision on this ground.
III.
The Double Jeopardy Clause protects against efforts to impose
punishment for the same offense in two or more separate
proceedings; double jeopardy concerns are not implicated, however,
where multiple punishments are imposed for the same offense in a
single proceeding, so long as Congress intended that result. See
United States v. Halper, 490 U.S. 435, 450 (1989); Missouri v.
Hunter, 459 U.S. 359, 368-69 (1983). The government seemingly has
conceded in this case that the forfeiture amounts to a punishment,
and we feel, as we just indicated, foreclosed from considering
whether the two cases involve the same conduct; so the remaining
issue is whether the criminal and civil cases can be considered a
single procedural entity for double jeopardy purposes. The
government successfully argued in the district court that the civil
suit and the criminal case were properly considered to be the same
proceeding. Courts of appeals have taken differing views on this
matter, but before canvassing those cases, we review several recent
Supreme Court holdings that are of manifest relevance.
In United States v. Halper, supra, a medical doctor was
convicted and punished for filing false medical claims; the
government later sued him in a civil action and subjected him to a
$130,000 civil fine for a $585 fraud. The Supreme Court concluded
that such a disproportionate assessment could only be characterized
as deterrent or retributive rather than remedial, and was therefore
a punishment within the meaning of the Double Jeopardy Clause.
Halper, 490 U.S. at 448-49. Because the criminal penalty and the
civil judgment arose from the same conduct and were adjudicated
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through separate proceedings, Dr. Halper was deemed to have been
subjected to an unconstitutional double jeopardy. More recently,
the Court concluded in Dept. of Revenue of Montana v. Kurth Ranch,
114 S. Ct. 1937 (1994), that the assessment of a civil tax on the
possession of illegal drugs, levied months after initiation of a
criminal prosecution based on possessing those drugs, violated the
principle of double jeopardy. The Court found that such a tax
cannot be considered a civil remedial measure. It is a form of
punishment which "must be imposed during the first prosecution or
not at all." 114 S. Ct. at 1498.
Courts of appeals have disagreed as to whether a separate
civil forfeiture proceeding may be brought based on conduct that is
also the basis for a criminal prosecution. The Second and Eleventh
Circuits have concluded that concurrent civil and criminal
proceedings, based on the same facts, do not violate the Double
Jeopardy Clause when the separate proceedings take the form of a
"single, coordinated prosecution." United States v. One Single
Family Residence Located at 18755 North Bay Road, 13 F.3d 1493,
1499 (11th Cir. 1994); United States v. Millan, 2 F.3d 17, 20-21
(2d Cir. 1993), cert. denied, 114 S. Ct. 992 (1994). Millan noted
that the law does not prevent the government from seeking and
obtaining both the full civil penalty and the full range of
statutorily-authorized criminal penalties in the same proceeding,
and that "it is well established that Congress may impose multiple
punishments for a single crime without violating the Constitution's
double jeopardy restrictions." Millan, 2 F.3d at 20. The
defendants in Millan pointed out that the civil and criminal
actions were filed separately with their own docket numbers. "This
factor, however, is not dispositive in determining whether the
government is employing a single proceeding in its prosecution of
a defendant. Civil and criminal suits, by virtue of our federal
system of procedure, must be filed and docketed separately." Id.
Instead, the court must "examine the essence of the actions at hand
by determining when, how, and why the civil and criminal actions
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were initiated." Id. In Millan, warrants for the civil seizures
and criminal arrests were issued on the same day, by the same
judge, based on the same affidavit by a federal agent. The
parties' stipulation in the civil case involved not only properties
which were the subject of the civil suit, but properties named in
the criminal indictment which were under restraining order. The
civil complaint also incorporated the criminal indictment. The
defendants were aware of the criminal charges when they entered
into the civil stipulation. There was, in addition, no suggestion
that the government acted abusively by seeking a second punishment
after an unsatisfactory initial prosecution. 2 F.3d at 20-21. In
light of these circumstances, the Millan court concluded that the
civil and criminal actions were but different aspects of a single
prosecution. In One Single Family Residence, the Eleventh Circuit
closely followed the reasoning of Millan in approving concurrent
civil and criminal prosecutions. 13 F.3d at 1499.
By contrast, the Ninth Circuit has opined that a "single,
coordinated prosecution" violates the Double Jeopardy Clause.
United States v. $405,089.23, 33 F.3d 1210 (9th Cir. 1994), amended
on denial of reh'g en banc, 56 F.3d 41 (9th Cir. 1995), cert.
granted, 64 U.S.L.W. 3161 (U.S. Jan. 12, 1996) (No. 95-346). The
$405,089.23 court noted the position taken in Millan and One Single
Family Residence and concluded that it "contradicts controlling
Supreme Court precedent as well as common sense." 33 F.3d at 1216.
The court stated:
We fail to see how two separate actions, one civil and
one criminal, instituted at different times, tried at
different times before different factfinders, presided
over by different district judges, and resolved by
separate judgments, constitute the same "proceeding." A
forfeiture case and a criminal prosection would
constitute the same proceeding only if they were brought
in the same indictment and tried at the same time.
Id. (footnote omitted). The court asserted that the government
could have avoided the problem of parallel proceedings by bringing
a criminal forfeiture count in the criminal indictment. While
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seven judges of the Ninth Circuit dissented from the order
rejecting the suggestion for rehearing en banc, they appeared to be
concerned with the question of whether the forfeiture was a
punishment, not the issue of what constituted a single proceeding.
See 56 F.3d at 42-43. The Seventh Circuit has expressed similar
doubts about the propriety of the "single, coordinated prosecution"
theory. See United States v. Torres, 28 F.3d 1463, 1465 (7th
Cir.), cert. denied, 115 S. Ct. 669 (1994) (dictum). United States
v. Ursery, 59 F.3d 568 (6th Cir. 1995), cert. granted, 64 U.S.L.W.
3161 (U.S. Jan. 12, 1996) (No. 95-345), seemed sympathetic to the
reasoning in $405,089.23 but held that even under the rule in
Millan the government failed to prove a single, coordinated
prosecution because the two actions "were instituted four months
apart, presided over by different district judges, and resolved by
separate judgments." 59 F.3d at 575.
With respect, we are persuaded that the reasoning of
$405,089.23 elevates form over substance in its judgment that the
government can never seek, even concurrently, criminal and civil
penalties arising from the same conduct. It is a feature of our
system of justice that criminal and civil matters are adjudicated
in separate cases, and while separate actions will lead to separate
trials before different factfinders at different times, this
commonplace observation about the administration of justice in our
country should not force federal prosecutors into a difficult
choice of whether to seek solely criminal penalties or solely civil
penalties. It does not appear that Congress intended any such a
dilemma in providing for both criminal and civil penalties for
illegal drug trafficking in Title 21. See generally S. Rep. No.
225, 98th Cong., 2d Sess. 191-197, reprinted in 1984 U.S.C.C.A.N.
3182, 3374-80 (legislative history of criminal forfeiture
provisions and revisions to civil forfeiture provisions).
We believe that the most important consideration in these
kinds of cases is whether the government pursued its remedies
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against the defendant concurrently or filed a second action after
it was dissatisfied with its initial attempt to prosecute a
particular crime. Halper, 490 U.S. at 451 n. 10; Millan, 2 F.3d at
20-21. The facts in this case give us no cause for concern on this
score. A single, coordinated prosecution, moreover, does not
require that the government provide cross-references between the
indictment and the civil complaint, or that the same judge preside
over both cases, or that there should be a common judgment. We ask
instead some common-sense questions: whether the government
initiated its parallel actions at, or very close to, the same time,
and whether there is some evidence of coordination of the two
matters that connects them in an obvious way. The two cases
against Mr. Smith were instituted within two days of each other,
the same assistant United States attorney appears to have
represented the government in each, and the affidavit attached to
the civil forfeiture complaint made reference to the incidents for
which Mr. Smith was indicted, even though they were not obviously
relevant to the forfeiture matter. In addition, Mr. Smith signed
a settlement of the forfeiture action one day before he pleaded
guilty to the criminal indictment, and the government signed it the
day after the entry of the guilty plea. All of these circumstances
provide strong indications of coordination. We conclude that the
two cases were merely different aspects of a single prosecution and
therefore that Mr. Smith was not subjected to double jeopardy.
IV.
For the foregoing reasons, we affirm the judgment of the
district court.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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