IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-10967
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OMAR ARREOLA-RAMOS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(July 20, 1995)
Before SMITH, WIENER, and DEMOSS, Circuit Judges:
WIENER, Circuit Judge:
Defendant-Appellant Omar Arreola-Ramos (Arreola) faces a
criminal drug trial. With this interlocutory appeal, he seeks to
bar that trial on double jeopardy grounds. Although a non-party to
a civil forfeiture proceeding, Arreola here asserts that the
forfeited funds (Funds) were his; that he received no notice of the
forfeiture; that the forfeiture of the Funds violates his due
process rights; and that forfeiture of the Funds in his absence
therefore constitutes former jeopardy. As a result, he argues, his
pending indictment -- arising as it does out of the same alleged
criminal activity -- violates double jeopardy. We conclude that,
as Arreola never made a claim in the civil forfeiture proceeding
and thus never became a party, that forfeiture neither placed him
in jeopardy nor punished him. Accordingly, we affirm the district
court's denial of Arreola's motion to dismiss and remand to the
district court for further proceedings.
I.
FACTS AND PROCEEDINGS
Arreola's story begins on Polk Street in Amarillo Texas, where
he lives with his mother, Mary Apodaca. On a June evening in 1994,
while investigating suspected drug activity, Amarillo law
enforcement officials searched the Apodaca/Arreola residence and
seized the Funds, approximately $11,408.00 in cash. This event
precipitated two similar but independent judicial proceedings, one
civil and the other criminal. First, Arreola and four others were
indicted on federal drug charges.1 Second, after the indictment
but before the trial, the government initiated in rem civil
forfeiture proceedings against the Funds, alleging that they were
used in or acquired as a result of a drug-related offense.2
Civil forfeiture procedure requires the government to
1
21 U.S.C. § 846 (West 1984 & Supp. 1995)(conspiracy to
possess cocaine); 18 U.S.C. § 2 (West 1969 & Supp. 1995)(attempt to
violate federal law).
2
See 21 U.S.C. § 881(a)(6) (West 1984 & Supp. 1995). This
statute incorporates the Tariff Act of 1930. See 21 U.S.C § 881(d).
The Tariff Act permits "Administrative Forfeitures" of property
valued at $500,000 or less. See 19 U.S.C. §§ 1607-1609 (West 1980
& Supp. 1995); 21 C.F.R. §§ 1316.75-77.
2
(1) publish, once a week for at least three successive weeks in a
newspaper of general circulation, notice of its intention to
forfeit, and (2) send "[w]ritten notice of seizure together with
information on the applicable procedures . . . to each party who
appears to have an interest in the seized article."3
A claimant then has 20 days from the first publication in
which to file a claim and a cost bond of not less than $250.00.4
The filing of the claim and the bond stops the administrative
process and requires the seizing agency to turn over the matter to
the United States Attorney for the commencement of a judicial
forfeiture proceeding.5 A claimant's failure to follow these
procedures results automatically in a declaration of forfeiture by
the seizing agency and the vesting of title to the forfeited
property in the United States.6 This declaration has the same
effect as a final decree and order of forfeiture entered in a
judicial proceeding.7
In this case, the notice of the forfeiture appeared for three
3
19 U.S.C. § 1607(a).
4
19 U.S.C. § 1608. Strange as it may seem, a claimant has 20
days from the first publication to make a claim. As a practical
matter, this means that the time for appearance will expire shortly
after the second publication and conceivably before the third.
5
Id.; see also 21 C.F.R. § 1316.76(b). To secure the
forfeiture, in a civil forfeiture proceeding, the government must
establish probable cause to believe that the funds were used or
acquired for illegal drug trafficking. See Vance v. United States,
676 F.2d 183, 187-88 (5th Cir. 1982).
6
19 U.S.C. § 1609.
7
Id.
3
consecutive weeks in USA Today. Additionally, the government sent
the "Notice of Seizure" (Notice) via certified mail addressed to
Arreola at his civil residence. His mother received the Notice and
signed the return receipt. At the time, however, Arreola was
incarcerated: Shortly after the seizure of the Funds, he had been
arrested on drug charges stemming from the same drug enforcement
activity.
The 20 day period for contesting forfeiture expired without
Arreola's having entered an appearance or contested the forfeiture.
Indeed, no one timely entered an appearance or contested the
forfeiture. Thus, on September 2, 1994, title to the Funds vested
in the United States government.
Some six weeks later, Arreola filed a motion to dismiss the
indictment against him. In his motion, he argued that, in light of
the recent forfeiture, a subsequent trial arising out of the same
alleged criminal activity would violate double jeopardy.
At this point in the narrative, we pause to parse Arreola's
motion. He filed but one, a motion to dismiss for double jeopardy;
however, his argument comprises three parts. In the first he
contends that former jeopardy attached in the civil forfeiture
proceeding. In the second he argues that, as a result of that
former jeopardy, his pending criminal trial, if held, would violate
double jeopardy. But there is one catch: Arreola was not a party
to the civil forfeiture. Thus, in the third part of his argument,
in which he complains of a due process violation, Arreola is
attempting retroactively to bootstrap himself into the civil
4
forfeiture proceeding and, more importantly, into its jeopardy
effects.
Breaking this third, due process part down further, we
perceive that Arreola's argument runs something like this: (1) the
government arrested me, put me in jail, and seized my money; (2)
knowing I was in jail, the government instituted forfeiture
proceedings against my money, but sent notice only to my civil
residence; and (3) this constitutes inadequate notice and violates
my due process rights, as I was unaware of and unable to contest
the forfeiture. Arreola then jumbles all three parts together and,
in a transparent bit of legal alchemy, attempts to transmute the
"lead" of a civil forfeiture proceeding -- in which he was not even
a party -- into the "gold" of former jeopardy. Essentially,
Arreola asked the district court (and now asks us) to overlook his
absence from the forfeiture proceeding and to hold -- not merely
"in spite of" his absence but indeed "because of" his absence --
that former jeopardy attached in the forfeiture proceeding.
Despite its ingenuity, this is nothing more than a garden variety
flawed syllogism.
The district court denied Arreola's motion: As Arreola was
not a party to the civil forfeiture, reasoned the court, he was not
placed in jeopardy by those proceedings. The district court
nevertheless ruled that Arreola's motion to dismiss was not
frivolous, granted Arreola leave to file an interlocutory appeal,
and ordered a continuance of his criminal trial setting until we
shall have ruled on Arreola's interlocutory appeal.
5
II.
ANALYSIS
A. JURISDICTION
Our authority to hear this appeal lies in Abney v. United
States.8 There, the Supreme Court held that appellate courts have
jurisdiction to entertain an appeal from a pre-trial order denying
dismissal sought on double jeopardy grounds.9 The Court reasoned
that, as the Double Jeopardy Clause forbids a second trial, such a
denial was within the "collateral order" exception10 to the final
judgment rule of appellate jurisdiction.11 The interlocutory appeal
that Abney permits is, however, limited to double jeopardy claims
and does not include other challenges.12
The scope of the instant interlocutory appeal is thus quite
narrow: We have jurisdiction to review only the district court's
denial of Arreola's motion to dismiss to the extent it implicates
double jeopardy. In an Abney appeal, we cannot review other
assertions of error, such as a due process violation in a separate
and independent proceeding. Consequently, we cannot consider
Arreola's due process claim regarding notice in the civil
8
431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977).
9
Id. at 663, 97 S.Ct. at 2042.
10
See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541,
69 S.Ct. 1221, 93 L.Ed. 1528 (1949).
11
Abney, 431 U.S. at 663, 97 S.Ct. at 2042.
12
Id. at 662-63, 97 S.Ct. at 2041-42 (claim for dismissal on
ground of insufficiency of indictment not within interlocutory
appeal).
6
forfeiture case. Such claims may be brought in district court,
either as a civil action collaterally attacking the summary
forfeiture judgment13 or in a criminal trial as a Rule 41(e) motion
to return seized property.14 As neither type of proceeding is
before us in this interlocutory appeal of the district court's
refusal to dismiss Arreola's criminal prosecution, we simply do not
have jurisdiction over those issues. Arreola's claim of denial of
due process in the civil forfeiture proceeding is thus beyond the
scope of this appeal, and we neither express nor imply an opinion
on the merits of such a claim. Accordingly, we review only his
double jeopardy claim in the context of his dismissal motion.
C. DOUBLE JEOPARDY
"No person shall . . . be subject for the same offense to be
twice put in jeopardy of life or limb . . . ."15 Double jeopardy
13
See Scarabin v. Drug Enforcement Admin., 919 F.2d 337, 338
(5th Cir. 1990)(federal court review of agency's summary forfeiture
proceeding "is limited to determining whether the agency followed
the proper procedural safeguards when [DEA] declared [defendant's]
property summarily forfeited"); see also United States v. Giraldo,
45 F.3d 509, 511 (1st Cir. 1995)(district courts have jurisdiction
to entertain collateral due process attacks on administrative
forfeitures, which may be pursued in a civil action under federal
question jurisdiction); United States v. Woodall, 12 F.3d 791, 793
(8th Cir. 1993)("the federal courts have universally upheld
jurisdiction to review whether an administrative forfeiture
satisfied statutory and due process requirements.").
14
See, e.g., United States v. Clagett, 3 F.3d 1355, 1356-57
(9th Cir. 1993)(fact that funds seized during claimants arrest had
already been administratively forfeited would not preclude Rule
41(a) motion for return of funds, if notice of pending forfeiture
was inadequate, so that forfeiture proceeding was never available
to claimant in any meaningful sense).
15
U.S. Const. amend. V.
7
raises a legal issue of constitutional dimensions; we review de
novo the denial of a motion to dismiss on double jeopardy grounds.16
The Supreme Court has interpreted the Double Jeopardy Clause to
shield citizens from both multiple prosecutions and multiple
punishments for the same offense.17 Of course, if the pending
criminal trial in this case were to result in a conviction, Arreola
would be subjected to punishment. And it follows that if the prior
civil forfeiture proceeding, which was predicated on the same drug
trafficking offenses as charged in the indictment, constituted a
"punishment," the Double Jeopardy Clause would bar the pending
criminal trial.18
1. Was The Forfeiture "Punishment"?
Only when a civil forfeiture constitutes "punishment" can
jeopardy attach.19 To determine whether a civil forfeiture
constitutes punishment for purposes of double jeopardy, we must
16
United States v. Gonzales, 40 F.3d 735, 737 (5th Cir. 1994),
cert. denied, -- U.S.--, 115 S.Ct. 1716, 131 L.Ed.2d 575 (1995);
see also United States v. Botello, 991 F.2d 189, 192 (5th Cir.
1993)("Standard of review for district court's denial of motion to
dismiss on grounds of double jeopardy is de novo."), cert. denied,
-- U.S. --, 114 S.Ct. 886, 127 L.Ed.2d 80 (1994).
17
United States v. Cruce, 21 F.3d 70, 74 (5th Cir.
1994)(citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct.
2072, 2076, 23 L.Ed.2d 656 (1969).
18
Regardless of the sequence of the civil and criminal
proceedings, the Double Jeopardy Clause will bar the second
proceeding if both the first and the second sanctions are deemed
punishment. United States v. Sanchez-Escareno, 950 F.2d 193, 200
(5th Cir. 1991), cert. denied, -- U.S. --, 113 S.Ct. 123, 121
L.Ed.2d 78 (1992).
19
See United States v. Tilley, 18 F.3d 295, 298-99 (5th Cir.
1994).
8
ascertain whether, "in a particular case, the amount of the
proceeds forfeited was so great that it bore no rational relation
to the costs incurred by the government and society resulting from
the defendant's criminal conduct."20 Thus, to evaluate whether, "in
this particular case" the civil forfeiture was a "punishment" to
the person asserting double jeopardy, we must, as a threshold
issue, determine whose property the government acquired in the
forfeiture of the Funds. For it is axiomatic that there can be no
punishment if the property forfeited did not belong to the person
claiming jeopardy.
2. Who Was Punished?
In any appeal, our factual consideration is limited to the
district court record and any relevant final judgments. When we
examine the record presently before us, we conclude that no one
owned the Funds prior to the vesting of title thereto in the
government. In his brief, Arreola says that he was listed on the
"Declaration of Forfeiture" (Declaration) as the owner of the
Funds. In fact, though, the Declaration identifies "SAME AS ABOVE"
as the owner of the money. It is unclear to whom or what this
designation refers; however, one thing is clear: Nowhere "above"
that entry does Arreola's name appear. Rather, his name appears
for the first time "below" that entry, identifying him as the
individual from whom the property was seized.
We are here constrained by both the pre-trial record in the
20
Tilley, 18 F.3d at 298-99 (citing Halper, 490 U.S. at 448-
49, 109 S.Ct. at 1902).
9
criminal action and the final judgment in the civil forfeiture
proceeding. When one or both of these conflict with Arreola's
assertions on appeal, we are bound by the former. And, like the
Declaration, the summary forfeiture judgment contradicts Arreola's
assertions of ownership. Moreover, only property that is unclaimed
or "unowned" may be summarily forfeited. Thus, albeit a legal
fiction, the very issuance of a summary forfeiture establishes that
no one owned the Funds. Consequently, their forfeiture punished no
one.
3. No Punishment, No Jeopardy.
Our analysis leads us inexorably to the conclusion that a
summary forfeiture, by definition, can never serve as a jeopardy
component of a double jeopardy motion. In summary forfeiture
proceedings, there is no trial, there are no parties, and no one is
punished.21 Absent a trial, a party, and a punishment, jeopardy can
never attach.22 As Arreola did not appear and contest the
forfeiture, he was never in jeopardy. Without former jeopardy,
21
United States v. Torres, 28 F.3d 1463, 1465 (7th Cir.)("As
a non-party, [defendant] was not at risk in the forfeiture
proceeding, and '[w]ithout risk of determination of guilt, jeopardy
does not attach, and neither an appeal nor further prosecution
constitutes double jeopardy.'"), cert. denied, -- U.S. --, 115
S.Ct. 669, 130 L.Ed.2d 603, (1994).
22
Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055,
1063, 43 L.Ed.3d 265 (1975)("The [Supreme] Court has consistently
adhered to the view that jeopardy does not attach, and the
constitutional prohibition can have no application, until a
defendant is 'put to trial before the trier of facts, whether the
trier be a judge or jury.'"); see also Torres, 28 F.3d at 1465
(holding that jeopardy did not attach to non-party to summary
forfeiture and thus there was no risk of double jeopardy in
subsequent criminal trial).
10
double jeopardy cannot arise.23 We agree with the district court:
As Arreola failed to establish former jeopardy, he necessarily
failed to establish even the possibility of double jeopardy.
In closing we point out that even though we affirm the
district court's denial of Arreola's motion, that court may later
vacate its finding of no prior jeopardy, if Arreola should renew
his motion and the evidence should then show that there was in fact
jeopardy. The district court's pre-trial ruling considered
whether, based on the evidence then before the court, double
jeopardy appearedSQand concluded that it did not. In this Abney
appeal, we affirm the correctness of that ruling, and that narrow
ruling alone. Neither the district court's pre-trial decision nor
ours on this appeal is binding as res judicata, law of the case,
collateral estoppel, or any other theoretical bar to the double
jeopardy issue in this case.24
Accordingly, the district court's denial of Arreola's motion
to dismiss is affirmed and the case is remanded for further
proceedings consistent herewith.
AFFIRMED and REMANDED.
23
Serfass, 420 U.S. at 389, 95 S.Ct. at 1063; see also Torres,
28 F.3d at 1465 ("You can't have double jeopardy without a former
jeopardy.").
24
United States v. Stricklin, 591 F.2d 1112, 1119 (5th Cir.
1979); see also United States v. Bryan, 677 F.Supp. 482, 483
(N.D.Tex. 1987)("[S]hould a court find before trial that there is
no double jeopardy, the court may later vacate its finding as the
evidence develops at trial, if the defendant renews his motion and
the evidence shows that there was, in fact, prior jeopardy.").
11