UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________________
Nos. 95-40954 & 95-40995
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN WESLEY CLUBB and
HELEN RUTH CLUBB,
Defendants-Appellants.
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Appeals from the United States District Court
for the Eastern District of Texas
(1:95-CR-83-1 & 1:95-CR-83-2)
_________________________________________________________________
July 30, 1996
Before DAVIS, JONES, and BARKSDALE, Circuit Judges.
PER CURIAM:*
John Wesley and Helen Ruth Clubb appeal the denial of their
motions to dismiss an indictment charging them with conspiracy to
possess, and possession with the intent to distribute, marijuana,
contending that the civil forfeitures of currency, pursuant to 21
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
U.S.C. § 881(a)(4), and real property, pursuant to 21 U.S.C. §
881(a)(7), bar their criminal prosecution under the Double Jeopardy
Clause of the Fifth Amendment.
The currency forfeited under 21 U.S.C. § 881(a)(4) was
forfeited summarily in an administrative proceeding after the
Clubbs failed to file a claim. Because only property that is
unclaimed or unowned may be so forfeited, our court has held that,
by definition, summary forfeiture proceedings neither place an
individual in jeopardy nor constitute punishment. See United
States v. Arreola-Ramos, 60 F.3d 188, 192 (5th Cir. 1995). The
Clubbs’ contention that their petition for restoration of the
currency, filed after the conclusion of the forfeiture proceeding,
comprised an appearance in the forfeiture proceeding, is
unavailing. See United States v. Morgan, 84 F.3d 765, 768 (5th
Cir. 1996) (a “petition for remission or mitigation does not
contest the administrative forfeiture because it does not trigger
judicial forfeiture proceedings nor make the petitioner a party to
any proceeding which can result in punishment for double jeopardy
purposes”).
The contentions regarding the forfeiture of real estate,
pursuant to 21 U.S.C. § 881(a)(7), are foreclosed by the Supreme
Court’s very recent decision in United States v. Ursery, ___ U.S.
___, ___ S. Ct. ___, 1996 WL 340815, *14-*16 (1996) (applying two-
stage analysis, and concluding that in rem civil forfeiture
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pursuant to § 881(a)(7) was neither “punishment” nor criminal for
purposes of the Double Jeopardy Clause, because (1) Congress
intended forfeitures under § 881 to be civil, and (2) there was
little evidence, much less the “clearest proof”, that forfeiture
proceedings under § 881(a)(7) “are so punitive in form and effect
as to render them criminal despite Congress’ intent to the
contrary”).
AFFIRMED
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