dissenting.
The majority holds that the civil forfeiture judgment followed by a criminal prosecution in this case violates the Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States. I respectfully dissent.
Defendant argues that the imposition of criminal punishment against him, in addition to the civil forfeiture proceedings instituted against his home, is prohibited by the Double Jeopardy Clause. However, in its memorandum and order issued on September 14,1993, the district court denied defendant’s motion to dismiss on double jeopardy grounds, finding that the civil forfeiture proceeding and the criminal conviction were “ ‘part of a single, coordinated prosecution of [a] person involved in alleged criminal activity,’” J.A. 29-30, and that such an effort did not violate the Double Jeopardy Clause. For the reasons that follow, I would affirm this holding of the district court.
I.
In United States v. Halper, the Supreme Court held that a civil sanction, when applied against an individual also subject to criminal conviction, may constitute “punishment” that requires a double jeopardy analysis. United States v. Halper, 490 U.S. 435, 448, 109 S.Ct. 1892, 1901, 104 L.Ed.2d 487 (1989). However, the Court indicated that its decision was not intended to “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.” Halper, 490 U.S. at 450-51, 109 S.Ct. at 1903. Thus, the Double Jeopardy Clause offers protection when the government has already imposed a penalty, either civil or criminal, and seeks to impose further punishment out of dissatisfaction with the earlier result, id. at 451 n. 10, 109 S.Ct. at 1903 n. 10, but not in the instance of a single proceeding seeking the full range of available sanctions. See also United States v. Hudson, 14 F.3d 536, 540 (10th Cir.1994) (citing United States v. Bizzell, 921 F.2d 263, 267 (10th Cir.1990)) (finding that the order of penalties is not material to the double jeopardy question). The Court recently reaffirmed this principle in Department of Revenue of Montana v. Kurth Ranch, — U.S. —, *577—, 114 S.Ct. 1937, 1945, 128 L.Ed.2d 767 (1994).1
Unlike the majority, I believe that this case involves a sufficiently coordinated proceeding to fall under the holdings in United States v. Millan, 2 F.3d 17 (2d Cir.1993), cert. denied, — U.S. —, 114 S.Ct. 922, 127 L.Ed.2d 215 (1994), and United States v. One Single Family Residence Located at 18755 North Bay Road, Miami, 13 F.3d 1493 (11th Cir.1994). In Millan, the Second Circuit found that the civil forfeiture action against defendant’s bank accounts and certain properties and his conviction on narcotics charges were not subject to double jeopardy analysis because the government’s actions were part of a “single, coordinated prosecution of persons involved in alleged criminal activity.” Millan, 2 F.3d at 20. It is true, as the majority points out, that Millan involved a much clearer ease of coordinated proceedings. However, the Second Circuit’s concern in that case, and its focus, was whether the timing of the civil and criminal actions allowed the government to punish the defendant with a second action if it believed that the defendant had not received a sanction that was adequately severe in the first ease. The Second Circuit stated that its decision did not run afoul of the Supreme Court’s concern in Halper that the government might abuse its resources by seeking to punish defendants a second time because the civil and criminal actions at issue were contemporaneous, and it was clear to all the parties that the government was pursuing the full range of its remedies regardless of the outcome in either the civil or criminal proceedings. Millan, 2 F.3d at 20-21. This was also the logic of the Eleventh Circuit in One Single Family Residence, in which the court found that “the circumstances of the simultaneous pursuit by the government of criminal and civil sanctions against [the defendant] ... falls within the contours of a single, coordinated prosecution.” One Single Family Residence, 13 F.3d at 1499.2 It is this logic that underlies my conclusion that there was no double jeopardy violation in this case.
I believe that the timing of the civil and criminal proceedings and the potential for government abuse of those proceedings are the central factors in assessing the double jeopardy concerns in this case. Such an approach avoids the inevitable difficulty of a case-by-case comparison of the level of coordination, the majority’s method for making this determination. Merely looking at whether the proceedings at issue bear sufficient similarity to the proceedings in Millan presents the difficult problem of determining how much similarity is required to permit a finding of a single, coordinated proceeding. For example, in this ease, the proceedings against defendant and his property took place in close time proximity to one another. The government commenced civil forfeiture proceedings against the home owned by defendant and his wife on September 30, 1992, and a grand jury returned an indictment against defendant on February 5,1993. Pursuant to a stipulated settlement agreement, the district court entered a consent judgment in the civil forfeiture proceeding on May 24, 1993. Defendant was convicted on the criminal charge on July 2, 1993. It was clear to defendant at the time he entered into the stipulated settlement agreement that the government was pursuing its full range of remedies against him. Is this enough factual similarity to apply Millan and One Single Family Residence? The majority concludes *578that it is not, but another panel could easily reach a contrary conclusion. Given the inherent problems in following such an unpredictable approach, I feel it is necessary to determine the case on a more objective and reliable basis. I conclude that this case involves a single, coordinated proceeding because it does not present the potential for government abuse of process; the government instituted and pursued both proceedings against defendant before it knew the outcome of either case.
It is true, as the majority points out, that the civil and criminal proceedings against defendant were handled by separate counsel from the United States Attorney’s office and that the government attorneys did not appear to be actively collaborating. However, in Millan, the Second Circuit observed that the fact of separate proceedings is not dis-positive in determining whether the government is employing a single proceeding to prosecute a defendant. “Civil and criminal suits, by virtue of our federal system of procedure, must be filed and docketed separately. Therefore, courts must look past the procedural requirements and examine the essence of the actions at hand by determining when, how, and why the civil and criminal actions were initiated.” Millan, 2 F.3d at 20. In this case, the civil and criminal proceedings against defendant and his property were active during the same time frame, and defendant knew at the time of the settlement in the civil forfeiture action that a criminal action was pending. Moreover, both actions resulted from a search of defendant’s property and the surrounding areas, a search that revealed extensive marijuana production and possession.
In United States v. Torres, 28 F.3d 1463, 1464-65 (7th Cir.), cert. denied, — U.S. —, 115 S.Ct. 669, 130 L.Ed.2d 603 (1994), the Seventh Circuit questioned the continued applicability of Millan and One Single Family Residence after the Supreme Court’s recent decision in Kurth Ranch. However, I do not believe that Kurth Ranch necessarily changes this result. Kurth Ranch does not hold that every civil action the government pursues against a defendant subject to other penalties constitutes a separate proceeding. In fact, Kurth Ranch itself included a criminal penalty, a civil forfeiture action, a bankruptcy action, and a tax assessment. Kurth Ranch, — U.S. at — - —, 114 S.Ct. at 1941-44. There was apparently no challenge to the simultaneous pursuit of a criminal action and a civil forfeiture proceeding, the case we are dealing with here. Moreover, the Court, by its own language, distinguished Kurth Ranch, noting that the tax statute at issue did not raise “the question whether an ostensibly civil proceeding that is designed to inflict punishment may bar a subsequent proceeding that is admittedly criminal in character.” Kurth Ranch, — U.S. at — n. 21, 114 S.Ct. at 1947 n. 21.
The Court’s primary focus in Kurth Ranch was on the issue of whether Montana’s drug tax constituted a penalty for double jeopardy purposes. The Court never questioned the civil forfeiture action but dealt specifically and exclusively with the tax assessment. The language of the decision suggests that the Court viewed the case as different from other civil actions because it was based on a tax issue. The Court said: “[T]he tax assessment not only hinges on the commission of a crime, it also is exacted only after the taxpayer has been arrested for the precise conduct that gives rise to the tax obligation in the first place.” Kurth Ranch, — U.S. at —, 114 S.Ct. at 1947. Thus, in Torres, the Seventh Circuit interpreted Kurth Ranch as dealing with the collection of a monetary penalty for a crime. Torres, 28 F.3d at 1464-65. The Montana tax could be imposed only after a criminal conviction was obtained. There was no question that the same conduct was involved. That is not the case here. Defendant did not have to be convicted of the drug offense before a civil forfeiture could be pursued. In fact, the civil proceedings were begun first. Therefore, I conclude that neither the civil forfeiture nor the criminal conviction was imposed as punishment consequent upon defendant’s criminal conviction or admission of guilt.
Because I conclude that the government was not acting to pursue a second punishment out of dissatisfaction with the first outcome, the only remaining concern is whether the “total punishment exceed[s] that autho*579rized by the legislature.” Halper, 490 U.S. at 450, 109 S.Ct. at 1903. Defendant was convicted of violating 21 U.S.C. § 841(a)(1). Under 21 U.S.C. § 841(b)(1)(B)(vii), defendant was subject to a term of imprisonment of not less than five years, nor more than 40 years; a fine not to exceed $2,000,000; and a term of supervised release of at least four years. Defendant was sentenced to 63 months imprisonment and four years of supervised release. No fine was imposed. Thus, defendant’s sentence was clearly within the range of authorized punishment.
In addition, pursuant to 21 U.S.C. § 881(a)(7), any real property that is used or intended to be used to facilitate the commission of a violation of 21 U.S.C. § 801 et seq. that is punishable by more than one year in prison is subject to forfeiture unless the owner qualifies as an “innocent owner.” Marijuana stems and seeds were found in defendant’s home during the search of his property; furthermore, the police received notice that defendant had been seen with marijuana at his home and had shared marijuana with family members and acquaintances. Defendant’s home was, therefore, properly subject to civil forfeiture under 21 U.S.C. § 881(a)(7), a civil penalty well within the bounds set forth by Congress.
II.
I also note my disagreement with the majority’s conclusion that the civil forfeiture action and defendant’s criminal prosecution are based on the same offense. The majority concludes that the civil forfeiture and the criminal conviction are punishment for the same offense because the forfeiture necessarily requires proof that defendant was manufacturing marijuana, and the criminal offense is effectively subsumed by the forfeiture. Again, I disagree.
In the criminal prosecution in this case, defendant was convicted of one count of manufacturing marijuana in violation of 21 U.S.C. § 841(a)(1). For defendant to be found guilty under this statute, the prosecution had to show (1) that defendant manufactured marijuana and (2) that he did so intentionally or knowingly. See United States v. Litteral, 910 F.2d 547, 550 (9th Cir.1990) (requiring the same elements to prove a charge of manufacturing methamphetamine). However, defendant was charged with the manufacture of marijuana only during the year 1992.
By contrast, the civil forfeiture complaint charged that defendant’s property was used or intended to be used to facilitate the unlawful processing and distribution of a controlled substance for several years. J.A. 19. In order to prevail in the civil forfeiture action, the government would have to have produced proof of probable cause to believe (1) that the property was used or intended to be used to facilitate the manufacture and distribution of marijuana and (2) that this offense was punishable under Title 21 of the United States Code by imprisonment of more than one year. 21 U.S.C. § 881(a)(7); United States v. Real Property Known and Numbered as Rural Route 1, Box 137-B, Cutler, Ohio, 24 F.3d 845, 848 (6th Cir.1994). The majority claims that the government could not confiscate defendant’s residence without a showing that he was manufacturing marijuana. This view, however, overlooks the fact that the civil forfeiture action required a showing that defendant’s property was involved in the commission or facilitation of both processing and distribution of a controlled substance over the course of several years. As earlier stated, the criminal indictment charged defendant only with the manufacture of a controlled substance during 1992. Had the civil forfeiture action been adjudicated, the government might have established its case with evidence relating solely to processing and distribution activities in years other than 1992. Under those circumstances, the criminal prosecution and the civil forfeiture action would undoubtedly relate to separate offenses under the Double Jeopardy Clause. United States v. Miller, 870 F.2d 1067, 1069-72 (6th Cir.1989).
III.
For the reasons stated, I would hold that the civil forfeiture action against defendant’s property followed by defendant’s criminal prosecution did not create a double jeopardy *580violation, and I would affirm the judgment of the district court.
. In Kurth Ranch, the Court noted that "Montana no doubt could collect its tax on the possession of marijuana, for example, if it had not previously punished the taxpayer for the same offense, or, indeed, if it had assessed the tax in the same proceeding that resulted in his conviction." Kurth Ranch, — U.S. at —, 114 S.Ct. at 1945 (citing Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 679-80, 74 L.Ed.2d 535 (1983)).
. In One Single Family Residence, a civil forfeiture action was instituted against the home of the defendant in October 1990; five months later, in late March 1991, an indictment was returned against the defendant. The government pursued both remedies, obtaining a conviction on October 30, 1991, and a subsequent order of forfeiture. The Eleventh Circuit noted, as the Second Circuit had in Millan, that the case involved no potential for the government to seek a second punishment out of dissatisfaction with the outcome in the first action because the commencement of a civil action before the imposition of a criminal penalty precluded such a result. One Single Family Residence, 13 F.3d at 1499 (citing Millan, 2 F.3d at 20).