United States v. Perez

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
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No. 94-60788
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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

GLORIA PEREZ,

Defendant-Appellant.

_________________________

Appeal from the United States District Court
for the Southern District of Texas
_________________________

November 21, 1995

Before KING, SMITH, and STEWART, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

This matter involves a challenge to a continuing prosecution

as a violation of the Double Jeopardy Clause of the Fifth Amend-

ment. The district court denied a motion to dismiss the indict-

ment. Concluding that the prosecution violates the Double Jeopardy

Clause, we reverse and remand with instructions to dismiss the

indictment.
 I.

Defendant Gloria Perez and her four children entered the

United States in a private vehicle via the border checkpoint at

Falfurrias, Texas. Border Patrol officers discovered ninety-six

kilograms of marihuana in the vehicle, arrested Perez, and seized

the vehicle.

A grand jury issued an indictment charging Perez with

possession of marihuana with intent to distribute, a violation of

21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). The United States then

brought an in rem civil proceeding seeking forfeiture of the

vehicle under 21 U.S.C. § 881(a)(4).

Perez and the government filed a “Stipulation of Settlement”

in which Perez agreed that the car would be forfeited to the United

States. The district court approved the “Stipulation of Settle-

ment” in an “Agreed Order of Forfeiture and Dismissal,” in which

the court ordered forfeiture of the vehicle and dismissal of the

forfeiture action.

Perez moved to dismiss the indictment, claiming that the

ongoing criminal prosecution violated the Double Jeopardy Clause’s

prohibition against multiple punishments. The district court

denied the motion.

During the hearing on the motion to dismiss, the court heard

evidence with regard to the forfeiture. A special agent of the

Drug Enforcement Administration testified that the government’s

costs for investigating the Perez case amounted to $11,000, not

including the costs of the United States Attorney or of the

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district court. This agent also testified that the street value of

the marihuana was about $128,000 and that the proceeds from sales

of the drug probably would have left the country. The agent

calculated the value of the vehicle at $22,000, whereas Perez

testified that she had paid $31,000 for it.

The court’s denial of the motion included a proportionality

review of the forfeiture, which involved consideration of whether

the amount forfeited bore a rational relation to the government’s

costs. The court found that it did and that the forfeiture removed

a “tool of the [drug] trade” from Perez. The court also found that

the value of the car was $23,000, that the forfeiture was not

overwhelmingly disproportionate to the government’s costs, and that

the forfeiture therefore bore a rational relation to a remedial

purpose: reimbursing the government and society for the costs of

Perez’s allegedly wrongful conduct.

II.

The government claims that we have no jurisdiction to hear

Perez's appeal, noting the federal law’s general disapproval of

interlocutory appeals, particularly in criminal cases. See Abney

v. United States, 431 U.S. 651, 656-57 (1977) (opining that such

appeals are generally disfavored). Despite this underlying

presumption, however, federal courts have entertained interlocutory

appeals from orders denying dismissal of an indictment on double

jeopardy grounds. Id. at 651; United States v. Tilley, 18 F.3d 295

(5th Cir. 1994), cert. denied, 115 S. Ct. 574 (1994); see generally

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Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949) (holding

certain collateral orders appealable). The Abney Court held that

federal courts of appeals may hear double jeopardy claims on

interlocutory appeal under the collateral order doctrine of Cohen:

[S]uch orders fall within the small class of cases that
Cohen has placed beyond the final judgment rule. In the
first place there can be no doubt that such orders
constitute a complete, formal, and, in the trial court,
final rejection of a criminal defendant’s double jeopardy
claim . . . .

Moreover, the very nature of a double jeopardy claim
is such that it is collateral to, and separable from the
principal issue at the accused’s impending criminal
trial, whether or not the accused is guilty of the
offense charged.

431 U.S. at 659 (emphasis added).

The government tries to distinguish Abney on the ground that

Abney involved a multiple-prosecution double jeopardy analysis, not

a multiple-punishment analysis as in this case. That argument is

foreclosed by Tilley, in which we took jurisdiction under Abney,

without discussion, of an interlocutory appeal from a refusal to

dismiss an indictment. See Tilley, 18 F.3d at 297. The motion to

dismiss in Tilley made the same double jeopardy argument that Perez

makes here (a violation of the clause’s prohibition on multiple

punishments). Cf. id. Given Abney and Tilley, there is no

question that we have jurisdiction over Perez’s appeal.

III.

A recent Supreme Court decision resolves the ripeness

question, although the case before the Court did not have precisely

the same posture as does the one before us. In Witte v. United

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States, 115 S. Ct. 2199 (1995), the government appealed a district

court order granting defendant’s motion to dismiss an indictment

based on the multiple punishments prong of the Double Jeopardy

Clause. Id. at 2203-04. On appeal, a panel of this court reversed

and remanded, and that judgment was affirmed, with the Court

holding the case to be ripe for appellate review even though the

defendant had not yet been convicted of the charges in the

contested indictment. Id. at 2205.

The defendant in Witte had pleaded guilty to conspiring and

attempting to possess marihuana with intent to distribute. Id. at

2202-03. During sentencing, the district court took into account

evidence of uncharged criminal conduct relating to cocaine and

enhanced the defendant’s sentence based upon that evidence. Id. at

2203. A subsequent indictment on the cocaine charges issued and

was dismissed on the ground that the conduct forming the basis of

the indictment had already been used to “punish” the defendant when

his sentence on the marihuana counts had been enhanced, thus

creating a double jeopardy violation. Id. at 2203-04.

In Witte, as in Perez, there was some question as to whether

the defendant had been placed in jeopardy prior to the contested

indictment. In Perez, the prior proceeding alleged by defendant to

have placed her in jeopardy was a civil forfeiture proceeding. In

Witte, the prior proceeding was a sentencing in which the conduct

forming the basis of the contested indictment had been taken into

account.

The analysis in Witte demonstrates that the case before us is

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ripe:

Petitioner nevertheless argues that, because the conduct
giving rise to the cocaine charges was taken into account
during sentencing for the marijuana conviction, he
effectively was “punished” for that conduct during the
first proceeding. As a result, he contends, the Double
Jeopardy Clause bars the instant prosecution. This claim
is ripe at this stage of the prosecution——although
petitioner has not yet been convicted of the cocaine
offenses))because, as we have said, “courts may not
impose more than one punishment for the same offense and
prosecutors ordinarily may not attempt to secure that
punishment in more than one trial.” . . . Thus, if
petitioner is correct that the present case constitutes
a second attempt to punish him criminally for the same
cocaine offenses . . ., then the prosecution may not
proceed.

Id. at 2204-05 (emphasis added, internal citations omitted). Thus,

if Perez is correct that the present case constitutes a second

attempt to punish her criminally for the same marihuana offenses,

the prosecution may not proceed.1

IV.

The Double Jeopardy Clause states: “[N]or shall any person be

subject for the same offence to be twice put in jeopardy of life or

limb.” U.S. CONST. AMEND. V. The courts have interpreted this

clause to provide protection from both multiple prosecutions (after

either an acquittal or a conviction) and multiple punishments.

See, e.g., Witte, 115 S. Ct. at 2204. In the case before us, the

parties agree that only the multiple punishments prong is at issue.

1
A sister circuit recently characterized Witte as “holding that a
multiple punishments double jeopardy claim is ripe for appellate review even
where the claimant has yet to have been a second time convicted.” See United
States v. Baird, 63 F.3d 1213, 1215 (3d Cir. 1995), petition for cert. filed
(Oct. 17, 1995) (No. 95-630).

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 The core issue in Perez is the same as that faced in United

States v. Halper, 490 U.S. 435 (1989): “[W]hether and under what

circumstances a civil penalty may constitute punishment for the

purpose of the Double Jeopardy Clause.” Id. at 446.2 Announced in

Halper, the governing legal standard for resolving this issue is

whether the civil sanction serves solely a remedial purpose, or

also a retributive or deterrent purpose. Id. at 448. If the

latter is true, the sanction constitutes punishment for purposes of

double jeopardy analysis.

This standard is typically effected as a case-by-case

proportionality review: If the sanction is overwhelmingly

disproportionate to the damages caused by a defendant’s alleged

wrongful conduct, it constitutes punishment. See id. at 449. Such

a proportionality review must include an accounting of the

government’s damages and costs, see id., to determine whether the

sanction was disproportionate. The damages and costs borne by

society as a result of the defendant’s unlawful conduct are also to

be considered. See Tilley, 18 F.3d at 298-300.

Austin v. United States, 113 S. Ct. 2801 (1993), has had a

major impact on the application of the Halper test. In Austin, the

Court held that civil forfeitures are subject to the Excessive

Fines Clause of the Eighth Amendment. Id. at 2803. Austin was not

a double jeopardy case, but the Austin Court’s analysis did include

2
The procedural posture of Halper is different, however; the
defendant had been convicted of various criminal offenses in the first
proceeding, and the second, contested proceeding was an ongoing civil
forfeiture.

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a determination of whether civil forfeitures constitute “punish-

ment,” see id. at 2806. Furthermore, it explicitly relied, at

least in part, on the Halper punishment test to make that determi-

nation. Id. at 2812; United States v. $405,089.23, 33 F.3d 1210,

1219 (9th Cir. 1994), amended on denial of reh'g en banc, 56 F.3d

41 (9th Cir. 1995), petition for cert. filed, 64 U.S.L.W. 3161

(U.S. Aug. 28, 1995) (No. 95-346).

Austin focused on two statutory forfeiture provisions, 21

U.S.C. §§ 881(a)(4) and 881(a)(7). The former is the one before us

now. The Austin Court concluded that all civil forfeitures under

both subsections constitute punishment. 113 S. Ct. at 2812. In

drawing the punishment/non-punishment distinction for excessive

fines cases involving these statutory provisions, the Austin Court

applied the same test used to make the punishment/non-punishment

distinction in double jeopardy cases——i.e., the Halper test. Id.

at 2812; $405,089.23, 33 F.3d at 1219; see United States v. Ursery,

59 F.3d 568, 573 (6th Cir. 1995), petition for cert. filed, 64

U.S.L.W. 3161 (U.S. Aug. 28, 1995) (No. 95-345).

The Austin Court specifically rejected a case-by-case approach

to the punishment determination for §§ 881(a)(4) and 881(a)(7).

See 113 S. Ct. at 2810-12 & n.14; $405,089.23, 33 F.3d at 1220

(citing Austin, 113 S. Ct. at 2812 n.14). In Austin, the Court

explicitly claimed to focus on the two statutory provisions “as a

whole” rather than as individually applied (rejecting Halper’s

approach), stating that “[t]he value of conveyances and real

property forfeitable under §§ 881(a)(4) and 881(a)(7) . . . can

8
vary so dramatically than any relationship between the Government’s

actual costs and the amount of the sanction is merely coinciden-

tal.” 113 S. Ct. at 2812 n.14 (citation omitted). Having

concluded that “forfeiture under these provisions constitutes

‘payment to a sovereign as punishment for some offense,’” id. at

2812 (citation omitted), the Austin Court announced that such

forfeitures constitute punishment per se. See Ursery, 59 F.3d at

573. This categorical approach for such civil

forfeitures——requiring them always to be considered as punish-

ment——obviates the need for proportionality review of the kind

conducted by the district court in this case.

Tilley, which was issued after Austin, offers the government

no refuge. It is true that the Tilley court declined to extend an

Austin-style per se approach to civil forfeitures brought under

§ 881(a)(6) (forfeiture of drug proceeds), a sister provision of

the one at issue in this case. See Tilley, 18 F.3d at 298-99.

Rather, we decided to apply a Halper-style case-by-case approach to

the facts of Tilley. See id.

It is also true that the facts of Tilley almost precisely

mirror those of the case before us. The government had filed the

civil forfeiture claim prior to the issuance of the indictment; as

in this case, however, the forfeiture claim was disposed of prior

to the indictment. Id. at 297. In fact, the forfeiture proceeding

was resolved by means of a “stipulated forfeiture agreement,” id.,

just as in the instant case. The overall postures of the cases are

identical: Both defendants brought an interlocutory appeal of a

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denial of a motion to dismiss the indictment on double jeopardy

grounds (specifically, the multiple punishments prong).

Despite these similarities, Tilley does not dispose of the

case before us. The Tilley court was faced with a statutory

provision (§ 881(a)(6)) to which the logic of Austin does not

apply, and which is therefore distinctly different from the

provision before us in Perez (§ 881(a)(6)). See Tilley, 18 F.3d at

300.

The Tilley court held that, while the forfeitures of convey-

ances and real property may not have any correlation to (nor

proportionality with) the government’s and society’s damages and

costs, the forfeiture of drug proceeds is always directly related

to such damages (as approximated by the amount of drugs sold):

"The more drugs sold, the more proceeds that will be forfeited. As

we have held, these proceeds are roughly proportional to the harm

inflicted upon government and society by the drug sale. Thus, the

logic of Austin is inapplicable to § 881(a)(6)——the forfeiture of

drug proceeds.” Id. By distinguishing Austin thus——i.e.,

acknowledging that forfeitures of conveyances are never propor-

tional to the government’s damages, except perhaps by coinci-

dence——the Tilley court acknowledged that the purpose of

§ 881(a)(4) is, at least in part, to punish.

Perez’s ongoing prosecution thus constitutes a second attempt

to punish her criminally for the same marihuana offenses as does

the civil forfeiture. It therefore violates the Double Jeopardy

Clause and may not proceed. See Witte, 115 S. Ct. at 2204-05. No

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proportionality review was required. Accordingly, we REVERSE the

district court’s denial of Perez’s motion to dismiss and REMAND

with instructions to dismiss the indictment.

United States v. Perez, No. 94-60788

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KING, Circuit Judge, specially concurring:

I concur in the panel's opinion and judgment because I think

both are logical extensions of the court's opinion in United States

v. Tilley, 18 F.3d 295 (5th Cir.), cert. denied, 115 S. Ct. 574

(1994). I write separately to note the confusion that has been

generated by the Court's decisions in United States v. Halper, 490

U.S. 435 (1989), and Austin v. United States, 113 S. Ct. 2801

(1993). Perez is a good example of that confusion; it stands

Halper on its head, but not without support from Austin, or at

least from Austin as construed (not unreasonably) by Tilley.

Traditionally, the civil forfeiture of property involved in

criminal activity and the criminal prosecution of the property's

owner for the same underlying conduct did not raise issues under

the Double Jeopardy Clause. See, e.g., United States v. One

Assortment of 89 Firearms, 465 U.S. 354, 362-66 (1984). The

question, which cries out for resolution by the Supreme Court, is

whether, or to what extent, Halper and Austin have changed that

rule.

The Court recognized in Halper that the government may exact

civil sanctions that achieve "rough remedial justice" without

raising double jeopardy concerns. Accordingly, under Halper it is

ordinarily necessary to examine the particular civil sanction

imposed on a case-by-case basis to determine whether it constitutes

"punishment" for double jeopardy purposes. Halper, 490 U.S. at

448; see also id. at 452-53 (Kennedy, J., concurring). Then along

came Austin, which held that the forfeiture provisions of 21 U.S.C.

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§§ 881(a)(4) (dealing with conveyances, or means of transporting

drugs such as automobiles) and 881(a)(7) (dealing with real estate

used in drug transactions) impose "punishment" for purposes of the

threshold applicability of the Eighth Amendment's Excessive Fines

Clause. Although it might have been possible to read Austin more

narrowly in a case arising under the Double Jeopardy Clause3, this

court, in dicta in Tilley, read it to call for the categorical

conclusion that all civil "forfeitures of conveyances and real

estate have no correlation to, or proportionality with, the costs

incurred by the government and society because of the large and

unpredictable variances in the values of real estate and convey-

ances in comparison to the harm inflicted upon government and

society by the criminal act." Tilley, 18 F.3d at 300. That

conclusion certainly has some support in Austin. See Austin, 1134

S. Ct. at 2812 n.14. Predictably, Perez now holds that even where

the district court has made careful findings supporting the

conclusion that the amount forfeited bore a rational relationship

to the government's costs, the forfeiture of a conveyance under §

881(a)(4) is always punitive. Where the forfeiture is completed

3
The Court in Austin stated that "it appears to make
little practical difference whether the Excessive Fines Clause
applies to all forfeitures under §§ 881(a)(4) and (a)(7) or only to
those that cannot be characterized as purely remedial." Austin,
113 S. Ct. at 2812 n.14. That was true because the Eighth
Amendment prohibits only excessive fines and "a fine that serve[d]
purely remedial purposes [could not] be considered `excessive' in
any event." Id. This suggests that perhaps a distinction should be
drawn between the Double Jeopardy Clause and the Excessive Fines
Clause when it comes to forfeitures under §§ 881(a)(4) and (a)(7),
at least where those forfeitures may be found to be purely remedial
in nature.

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before the criminal prosecution, the criminal prosecution violates

the Double Jeopardy Clause and may not proceed. So Halper's case-

by-case approach, scrupulously followed by the district court here,

has given way to a categorical approach in which the district

court's conclusion that the forfeiture at issue is wholly remedial

is irrelevant.

The practical consequences to the administration of justice in

this circuit are enormous. The sequence of the proceedings in

Perez is common. Many ongoing cases will be, and many completed

cases may be, affected by this decision. And the problem is not

unique to this court. Several circuits have been struggling with

variants of it. See, e.g., United States v. All Assets of G.P.S.

Automotive Corp., 66 F.3d 483 (2nd Cir. 1995); United States v.

Morgan, 51 F.3d 1105 (2nd. Cir.), cert. denied, 116 S. Ct. 171

(1995); United States v. Baird, 63 F.3d 1213 (3rd Cir 1995),

petition for cert. filed, 64 U.S.L.W. 3318 (U.S. Oct. 17, 1995)

(No. 95-630); United States v. Borromeo, 995 F.2d 23 (4th Cir.),

opinion adhered to in part and vacated in part on reh'g, 1 F.3d 219

(4th Cir. 1993); United States v. Salinas, 65 F.3d 551 (6th Cir.

1995); United States v. Ursery, 59 F.3d 568 (6th Cir. 1995),

petition for cert. filed, 64 U.S.L.W. 3161 (U.S. Aug. 28, 1995)

(No. 95-345); United States v. $405,089.23 U.S. Currency, 33 F.3d

1210 (9th Cir. 1994), opinion amended on denial of reh'g, 56 F.3d

41 (9th Cir. 1995), and petition for cert. filed, 64 U.S.L.W. 3161

(U.S. Aug. 28, 1995) (No. 95-346); SEC v. Bilzerian, 29 F.3d 689

(D.C. Cir. 1994). It is an area that the Supreme Court should

14
revisit.

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