FEAR-List Bulletin posted by John Paff, 2/8/96

"The court does not take lightly either the dismissal of criminal charges against a defendant or the significant efforts undertaken by the Government to reduce drug abuse in this country. However, the protections of the Constitution apply to all citizens, and the Constitution must never be made a casualty in the Government's war on drugs."

quoted in Gainer v. U.S.

On November 8, 1995, the United States District Court for the District of Kansas decided the case of Richard Gainer v. United States of America (904 F.Supp 1234). In this opinion, Senior Judge Saffels vacated Gainer's prison sentence since he had already been punished by a prior DEA administrative forfeiture.

Gainer was arrested on June 4, 1990 for marijuana offenses. At the time of his arrest, two vehicles and $85,310 were seized. The DEA initiated an administrative forfeiture action against the cash and vehicles. Gainer did not respond to his notice of the action, so the cash and property were administratively forfeited on September 5, 1990. On August 13, 1990, Gainer pled guilty to "conspiracy to possess with intent to distribute marijuana" and on October 17, 1990 was sentenced to 5 years in prison, followed by 5 years of supervised release.

The court noted that the Third, Seventh and Ninth Circuits have held that jeopardy does not attach if the claimant does not contest, and thus participate in, the forfeiture. (U.S. v. Baird, 63 F.3d 1213 (CA 3, 1995), U.S. v. Torres, 28 F.3d 1463 (CA 7, 1994), U.S. v. Cretacci, 62 F.3d 307 (CA 9, 1995). Saffels, however, found that one of the forfeited vehicles was titled in Gainer's name and held

The character of the act of forfeiture is without question
punishment whether or not a defendant appears as part of the
proceeding. This is especially true when there is no doubt
about the owner of the property seized. (Gainer, at 1237)