FREEHOLD -- A State Superior Court Judge reserved decision today on a motion challenging the constitutionality of a provision in the state's forfeiture law that denies property owners a trial by jury in forfeiture actions. Judge James A. Kennedy heard arguments by the Monmouth Prosecutor's Office and defense counsel and decided that he needed more time to "research and consider this very important public issue."

The case, State v. One 1990 Honda Accord (Docket No. MON-L-3804- 95), began on April 19, 1995 when Highlands Police Detective Joseph Blewett seized a 1990 Honda Accord owned by Lois McDermott of Highlands. According to the complaint, the Honda was being driven by Lois McDermott's son, John "Jackie" McDermott, also of Highlands. Blewett said that he pulled the Honda over after observing John McDermott's attempt to hide "an object under his leg." While placing McDermott under arrest, Blewett alleges, McDermott "put the subject vehicle in gear and drove from the scene with Detective Blewett hanging from the window."

Under the state seizure law, any property that "facilitates" a criminal act is forfeited to the state. The state claims that the Honda should be forfeited since it "facilitated" the crimes John was charged with. The fact that the Honda is not owned by John-- but rather by his mother--is not in itself a defense to the forfeiture. Under the law, Lois is required to prove that she "was not involved in or aware of the unlawful activity and that [she] had done all that could reasonably be expected to prevent the proscribed use of the property" by her son. In her answer to the complaint, Lois asserted that she is an "innocent owner" and demanded a trial by jury.

State law does not allow jury trials in forfeiture cases. Elizabeth Macron of Howell (908/458-5823), Lois McDermott's lawyer, filed a motion seeking a declaration that the statute depriving forfeiture claimants of a jury trial violates the state constitution. During her appearance before Kennedy today, she argued that since forfeiture cases were tried to juries under English Common law and in colonial New Jersey, the right to a jury trial in forfeiture cases was "preserved inviolate" by the state's first constitution in 1776. She cited cases from the supreme courts of ten states that support her analysis.

Assistant Prosecutor Patricia B. Quelch (908/431-7160), who represented the State, argued that the constitutional right to a jury trial does not apply to forfeiture cases, and urged Judge Kennedy to deny McDermott's motion.

In her answer to the complaint, Lois McDermott also alleged that the forfeiture should be invalidated because the state forfeiture law is structured such that "the very law enforcement agencies that initiate forfeiture benefit from the proceeds." McDermott argues that New Jersey's "system of rewards and incentives are structured in a manner [that] deny her constitutional right to due process of law."

FAVORABLE DOUBLE JEOPARDY RULING IN UTAH
posted by John Paff (FEAR-List bulletin 12/3/95)

Judges: Orme, Davis and Bench

Attorney for Defendant: G. Fred Metos, McCaughey & Metos, 10 W. Broadway, Suite 650, Salt Lake City, UT 84101 Tel. 801/364-6474

Facts

Defendant Davis arrested and car seized for possession of $25 worth of cocaine. Civil forfeiture trial held under state law resulted in order of forfeiture of automobile. Defendant then moved for dismissal of criminal information under double jeopardy grounds. Trial court denied motion and defendant filed interlocutory appeal.

Held

Forfeiture and criminal actions were "separate" for double jeopardy purposes whether the Ninth Circuit (U.S. v. $405,089.23) or the Second Circuit (U.S. v. Millan) analysis was followed. Proceedings under Utah's forfeiture statute were already judged to be punitive by the Utah Supreme Court in State v. 392 South 600 East, Nepth, Utah, 886 P.2d 534 (1994). In conclusion, the Court of Appeals held "By pursuing the criminal proceedings against defendant, the State is attempting to punish the defendant a second time for an offense for which he has already been punished, the very abuse that the Double Jeopardy Clause protects against." Reversed.

Dissent

Judge Bench dissented, stating in essence that Halper and Austin both say that "if the civil sanction can be characterized as serving some remedial purpose, double jeopardy does not apply."

NEW JERSEY DOUBLE JEOPARDY UPDATE
posted by John Paff (FEAR-List bulletin, 12/3/95)

On February 3, 1995, Passaic County Superior Court Judge Leopold A. Monaco decided the case of State v. $3,000 in U.S. Currency, Docket No. PAS-L-7458-91. In his ruling, Judge Monaco held that a civil forfeiture after a criminal conviction violates the Fifth Amendment's Double Jeopardy provision.

The state appealed Judge Monaco's ruling, and the case is currently pending before the Appellate Division of the New Jersey Superior Court (Docket No. A-5180-94-T2, Laurie Gambacorta-Case Manager 609/633-0809). If the Appellate Division upholds Monaco's decision (and if its decision is published), it will no longer be permissible for the state to seek both a criminal conviction and a civil forfeiture based on the same offense.

Oral argument has been requested in this case, and should be held in early 1996. I will call the Appellate Division periodically and notify this list of the date, place and hour of oral argument. The attorney for the claimant (Frank Firrito) is: Rick A. Garcia, 1135 Clifton Avenue, Clifton, NJ Phone 201/779-2233, Fax 201/779- 4109.

The attorney for the State of New Jersey is: Ronald S. Fava (Terry S. Bogorad, Assistant Prosector, on the brief), Passaic County Prosecutor, 401 Grand Street, Paterson, NJ 07505, Phone 201/881-4800.

Bogorad's brief, in pertinent part, is set forth below.

Point II

The State contends that Judge Monaco improperly dismissed the portion of the State's forfeiture complaint concerning the $3,000 and the contents of the two bank accounts because he improperly assessed the nature of the civil penalty here. He improperly assessed the civil penalty because he characterized the State's forfeiture complaint as a punishment without explaining what criteria he used to arrive at his characterization, without assessing the present case, and without analyzing N.J.S.A. 2C:64-1 in detail.

Judge Monaco could have employed the test to determine if this plaintiff was twice "punished" for the same act or the test to determine if the civil penalty under N.J.S.A. 2C:64-1 constituted a non-remedial penalty. But he employed neither test. The Double Jeopardy Clause of the Constitution protects against three distinct abuses. U.S. v. Halper, 490 U.S. 435, 440, 109 S. Ct. 1892, 1897 (1989). Those abuses are a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and the imposition of multiple punishments for the same offenses. In matters in which the Government has pursued both civil and criminal actions against one individual for the same underlying criminal activity the court must determine if the imposition of both civil and criminal penalties violate the Double Jeopardy Clause by "assessing the character of the actual sanctions imposed on the individual by the machinery of the state. " Id., at 447, 109 S. Ct. at 1901.

The character of the civil penalty can take three forms. Those forms are for a remedial purpose, for deterrence of future criminal acts, and for retribution. Id., at 448-450, 109 S. Ct. at 1902. Where the character of the civil penalty is not remedial, the second penalty violates the Double Jeopardy Clause. Id.; U.S. v. Tilley, 18 F. 3d 295, 298 (5th Cir. 1994), cert. denied U. S. , 115 S. Ct. 574 (1994). In addition a remedial civil penalty may violate the Double Jeopardy Clause in cases where there is absolutely no correlation between the penalty imposed and any damages sustained by society and the government to enforce the law. Id.

Furthermore the imposition of a civil penalty upon a criminal defendant for a specific criminal act may violate the Excessive Fines Clause of the Eighth Amendment. Austin v. U.S., U.S., 113 S. Ct. 2801, 2803 (1993).

In 1992 the New Jersey Appellate Division instructed a lower court to employ the Halper analysis established by the United States Supreme Court to determine if a civil penalty was remedial and not in violation of the Double Jeopardy Clause. State v. Ciba-Geigy Corp., 253 N.J. Super 51, 60-61 (App. Div. 1992). Consequently, the analysis, as established by the United States and as repeated by the New Jersey Appellate Division, to determine a violation of the Double Jeopardy Clause should have been employed by Judge Monaco here.

In his written opinion Judge Monaco flatly defined the civil remedies sought by the State as a punishment and thereby violative of the Double Jeopardy Clause (Da 1 10). Judge Monaco's flat definition implies that he employed a method of analysis other than the one established by Halper and in contradiction of the instruction by the New Jersey Appellate Division. The lack of specificity suggests that the Judge Monaco's analysis lead [sic] to an improper decision here.

In Austin v. U.S., U.S. 113 S. Ct. 2801 (1993), the United States Supreme Court concluded that under certain federal forfeiture statues, as they read in 1993, the forfeiture of property constituted a punishment, which could lead to a Double Jeopardy violation, 113 S. Ct. at 2812. That conclusion was reiterated by the Ninth Circuit U.S. v. $405,089.23 U.S. Currency, 33 F. 3d 1210(9th Cir. 1994).

Due to the analysis employed by the United States Supreme Court in Austin and by Ninth Circuit in $405,089.23 U.S. Currency to reach their conclusions about the federal forfeiture statute under 21 U.S.C.A. Sec. 881, it appears that a forfeiture statute under which the State sought civil remedies must be reviewed by the courts to determine the nature of forfeiture before the courts can determine if the Double Jeopardy Clause is violated. To date the New Jersey Courts have not reviewed the New Jersey forfeiture statute to determine the nature/purpose of forfeiture under that statute.

In 1991 N.J.S.A. 2C:64-1 [Endnote 1], which defines what property is subject to forfeiture reads as follows:

Property subject to forfeiture

a. Any interest in the following shall be subject to forfeiture and no property right shall exist in them:

(1) Controlled dangerous substances, firearms which are unlawfully possessed, carried, acquired or used, illegally possessed gambling devices and untaxed cigarettes. These shall be designated prima facie contraband.

(2) All property which has been, or is intended to be, utilized in furtherance of an unlawful activity, including, but not limited to, conveyances intendedto facilitate the perpetration of illegal acts, or buildings or premises maintained for the purpose ofcommitting offenses against the State.

(3) Property which has become or is intended to become an integral part of illegal activity, including, but not limited to, money which is earmarked for use as financing for an illegal gambling enterprise.

(4) Proceeds of illegal activities, including, but not limited to, property or money obtained as a result of the sale of prima facie contraband as defined by subsection a. (1), proceeds of illegal gambling, prostitution, bribery and extortion.

The New Jersey forfeiture statute differs greatly from the federal forfeiture provision under the federal drug act. The federal statute 21 U.S.C.A. Sec. 881 is very specific about what property can be forfeited, and it exempts property of innocent owners. Austin V. U.S., ____ U.S. at ____, 113 S. Ct. at 2810-211. The exemptions created the punitive nature of forfeiture under that statute by focusing on the culpability of the owner of the property eligible to be forfeited. Under N.J.S.A. 2C:64-5b property of innocent owners is not generally exempt. Only property of owners who have entrusted their property to persons for repairs or services is not subject to forfeiture.

Due to infirmities of 21 U.S.C.A. Sec. 881 being absent from N.J.S.A. 2C:64-1 et al., the nature of forfeiture under N.J.S.A. 2C:64-1 et seq. is not the same as the nature of forfeiture under 21 U.S.C.A. Sec. 881.

Furthermore, because N.J.S.A. 2C:64-1 et seq. focuses on the property and not the offender, N.J.S.A. 2C: 64-1 et seq. appears remedial in nature under the analysis employed by the United States Supreme Court. Id. (If culpability is an issue, the statute is punitive.) The lack of focus on the culpability of the claimant in N.J.S.A. 2C:64-1 et seq. allows forfeiture under that statute to be remedial. Id.

In this matter Judge Monaco did not analyze the nature of forfeiture under the New Jersey statute to determine whether forfeiture in this State is a non-remedial punishment. Therefore, his analysis was improper. Id.

Judge Monaco in his written opinion seems to have performed an analysis other the analysis to determine the nature of a forfeiture statute as illustrated in Austin [endnote 2]. Consequently, his dismissal of a portion of the State's forfeiture complaint should be reversed, and this matter should be remanded for determinations consistent with the analysis of Halper and Austin.

Endnote 1. Please note that N.J.S.A. 2C:64-1 was amended in 1992 to include untaxed special fuel and to define untaxed special fuel. The amendment's effective date was July 1, 1992.

Endnote 2. In Austin, the U.S. Supreme Court explained why forfeiture under 21 U.S.C.A. Sec. 881 constituted a punishment.

This is a follow-up to the Florida double jeopardy case that we learned about on August 2, 1995
posted by John Paff (FEAR-List bulletin 12/3/95)

The name of the case is State v. William Edward Llewellyn (CR-95- 1778) decided by Judge Alice Blackwell White, a Circuit Court Judge in Orange County, FL. Judge White dismissed criminal charges on July 26, 1995 against Llewellyn because he had already been punished through a civil forfeiture. (For more information, contact the court at 407/836-2056, or write to 65 E. Central Blvd, Orlando, FL).

On September 14th, Florida appealed the dismissal to the 5th District Court of Appeals in Daytona Beach (Phone 904/255-8600). The appellate docket number is DCA-95-2167. It is unknown when the appellate court will issue its opinion.

Sub: National Moot Court Competition this year deals with asset forfeiture issues
posted 11/16/95

I don't know if you are aware that the National Moot Court topic for this year involves two constitutional questions relating to in rem forfeiture.

The first question asks whether a civil forfeiture proceeding that follows a criminal prosecution and conviction violates the Double Jeopardy Clause of the Fifth Amendment. The second question presented seeks to resolve the dispute among the various circuit courts of appeals about what test to use to measure the excessiveness of a civil forfeiture under the Eighth Amendment. If you'd be interested in a sample petitioner's brief, please e-mail me here and I will send you a copy of our brief. I am on the National Moot Court Team for the University of Kansas.

Sub: Justice for Sale in NJ?: Victim story of Isaac Wright, prosecuted by Bissell
by John Paff (FEAR-List bulletin 10/15/95)

I just finished reading Isaac Wright's brief in support of his motion currently pending before the New Jersey Supreme Court (App.Div. Docket No. A5434-90T4). As you may recall, Wright was convicted in 1991 of being a "drug kingpin" and sentenced by Judge Imbriani to life imprisonment with a 25 year parole disqualifier. The Appellate Division reversed the kingpin conviction on May 12, 1995. Former Somerset County Prosecutor Bissell appealed the Appellate Division's decision on June 5, 1995. Wright's current motion seeks to dismiss Bissell's appeal.

Important Note: Since Wright's conviction, Judge Imbriani has been convicted for theft, and Prosecutor Bissell has been named in a 33 count federal indictment. Both were removed from office.

Wright's brief, prepared by Public Defender Vito Sciancalepore dated June 15, 1995, claims that Wright "was selectively and vindictively singled out to be treated and prosecuted disparately" by Bissell. His research revealed that several other drug defendants were more involved in the drug trade than Wright, but weren't prosecuted as "drug kingpins." Significantly, in the examples he cites, the other defendants all agreed to forfeit large sums of cash as part of their plea deals. Although I haven't checked the court records to verify Sciancalepore's claims, his allegations are consistent with Bissell's known conduct.

It is also noteworthy that Wright, who was convicted of being a "kingpin," possessed only $96 in cash at the time of his arrest, and ultimately, the prosecutor could only locate about $600 to forfeit. It appears that Wright's lack of forfeitable cash played a role in the prosecutorial decision of whether the state should seek a life sentence.

Appended to this post is the pertinent text from Sciancalepore's brief. Note that names and figures are provided. If analysis reveals Sciancalepore to be correct, Bissell's abuse of the forfeiture statute and criminal justice system becomes more apparent.

from the brief - page 12

For example between 1989, when defendant was arrested until 1991 when he was convicted, no individual similarly situated was ever prosecuted as a kingpin. John Camacho and his organization used $100,000.00 in cash and an automobile as payment on a deal to purchase over 50 kilos of Cocaine. After making the deal Camacho was arrested by SCPO (Somerset County Prosecutor's Office), yet, no one was charged as a kingpin. Moreover, Camacho voluntarily forfeited the money and was given a 5 year flat sentence. He was released from prison within 18 months.

Elke Rohaus and his organization used $150,000.00 in cash to buy over 15 kilos of Cocaine. After making the deal he and the members of his organization was arrested by SCPO, yet, no one was charged as a kingpin. He also voluntarily forfeited the money and was given a 7 year flat sentence. He was released from prison in less than two years.

Mario Restrepo and his organization used over $70,000.00 in cash, a house, land and a car to purchase a substantial number of kilos of Cocaine. After making the deal, he and members of his organization was arrested by SCPO. Again, no one was charged as a kingpin. He voluntarily forfeited the money and was given a 5 year indeterminate sentence. He was released from prison in less than 15 months.

Ernesto Alverez and his organization used $100,000.00 in a deal that included the purchase of 50 kilos of Cocaine. After making the deal, he and members of his organization was arrested by SCPO. No one was charged as a kingpin and he voluntarily forfeited the money and was given a 7 year flat [page 13] sentence. He released from prison in less than two years.

SCPO confiscated approximately $1,000,000.00 in cash from an organization after they made a deal, not only to purchase multi-kilos of Cocaine, but also to launder one-half million dollars of the money. That money was forfeited and the leader of the organization received a 10 year flat sentence. She was released from prison in a little over two years. No one in that organization was charged as a kingpin either. (57T36-5 to 37-6).

Even at a post trial hearing, defendant brought to the Court's attention that Victor Travino wanted by the Federal Government for importing over 500 kilos of Cocaine into Miami, Florida at the time he was arrested by SCPO, was charged as a leader of a narcotics trafficking network. Travino's bail was set at two-million dollars and then raised to ten-million after an apparent attempt to make bail. He voluntarily forfeited $150,000.00 in cash used to purchase approximately 20 kilos of Cocaine and he received a sentence of 15 years flat after the kingpin charge was dropped. He is currently eligible to be released from prison on that sentence. (BMT5-1 to 12-11).

None of these facts brought out by defendant were disputed by the Prosecutor.

AN OVERVIEW OF MICHIGAN'S VIEWPOINT ON DOUBLE JEOPARDY/FORFEITURE-EXCESSIVE FINES.

by Micheal Ward #128267 (5-005), Saginaw Corr Facility, 9625 Pierce Rd., Freeland, MI 48623 (FEAR-List bulletin posted 7/28/95)

It appears the circuit courts in the State of Michigan are reluctant to provide criminal defendants relief under the increasingly popular "double Jeopardy" [or excessive fine] theory of constitutional law. However, the tide may soon turn, under the umbrella of the Federal Sixth Circuit Court of Appeals.

Despite the ardent efforts of Attorney, Kenneth Birch, from Lansing, Michigan, Judge Lawrence Glazer of the Ingham County Circuit Court, Lansing, Michigan, in the case of "People v Thomas Pantalone", No. 93-66231 FH (July 1995), on a post-conviction motion for relief from judgement, denied relief on a double jeopardy claim, where there was an actual civil forfeiture proceeding prior to the cocaine offense conviction, for basically the same reasons as set forth in "People v Hellis", Mich. Ct. of App., No. 169398/169707 (June 27, 1995)(published op.). Judge Glazer is known to be a conservative judge. Singing a different tune, however, a more learned, yet liberal, Judge Breck out of the Circuit Court on Oakland County, Michigan, released a drug offender, serving 20-30 yrs. in prison on 'bond' pending disposition of a double jeopardy claim, filed by attorney Howard Wittenberg of Detroit, Michigan.

The Circuit Courts for the State of Michigan, including the Court of Appeals, and the Michigan Supreme Court, for the most part are known to be conservative on the bench; especially in light of the super hero conservative, the illustrious Governor John M. Engler; who seems to be tuning out, and not tuning in, to the realities of the Constitution or the demands of the common people.

On a different note; the circuit court judges are "elected" officials and therefore overly conscious of what the Engler Administration and conservative party might think, if they were to ever interpret the law of the land to suit a convicted drug offender, toward effecting his release from prison. Be that as it may; however, the is relief in sight. Despite the head over heels faltering opinion of "People v Hellis"; that decision is doomed in the wake of "U.S. v Ursery", CA6, No. 94-1127 (July 13, 1995), where, the sixth Circuit adopted the more liberal standards of the 9th Circuit Federal Court of Appeals, in its interpretation of "Austin v Kurth Ranch".

Of course, on a Federal Constitutional issue, such as is the double jeopardy, excessive fines provisions of the Fifth & Eight Amendment; federal law controls. Therefore, "Ursery" now controls in the State of Michigan, and not "Hellis". In sum, "Hellis" was wrongly decided, because the panel of judges in that case, although citing to "Austin" and "Kurth Ranch", effectively turned a blind eye to the pertinent language of analysis in those two controlling U.S. Supreme Court cases. Instead, it appears, the "Hellis" court, in error, adopted the standard announce in "Halper" (i.e., "no rational relationship to the government's loss"). In error, the "Hellis" court found a "common thread" running through the trilogy of "Halper", "Austin", and "Kurth Ranch", in that, as the "Hellis" court claims that, "double jeopardy protection under the Fifth Amendment or excessive fines protection under the Eighth Amendment are triggered only when, in contempation of other sanctions applied criminally, related forfeiture or tax proceedings impose additional penalties such that the 'total' penalty is 'disproportionate' to the offense committed." One begins to wonder how a court can compare a property (usually of monetary value) penalty or 'taking', to the offense committed (which penalized with physical confinement). Noteworth here is the Fifth Amendments prohibition: "... nor shall private property be taken for "public use' without just compensation."). While "Halper is useful in understanding the history of "Austin" and "Kurth Ranch"; it is "Austin" and "Kurth Ranch" that control, not "Halper".

Given the "Ursery" case; and its controlling precedent in the Sixth Circuit; both state and federal courts in the State of Michigan, are now compelled to follow "Usery". It is likely the attorney in the "Hellis" case will seek application for leave to appeal to the Michigan Supreme Court, based upon the "Usery" case. If the Michigan Supreme Court affirms "Hellis", and does not overrule "Hellis", by adopting the Sixth Circuit's "Usery" case; then criminal defendants in the Sate of Michigan, seeking to invoke the double Jeopardy/excessive fines clause, as a defense, can effectively 'by-pass' the otherwise 'exhaustion of state remedies' requirement, and go straight into the U.S. District Court with a federal habeas corpus, under 28 U.S.C. S2254; arguing "futility" of exhaustion in the state courts. In any event, if the state courts, refuse to follow the Sixth Circuit Court of Appeals "Usery" standard; any court that does so, will itself be in direct violation of the Supremacy Clause of the U.S. Constitution; as well as the Fourtenth Amendment.

I have noted that attorney's in Michigan are not focusing on the term 'solely' as used in the "Austin" case. Under "Austin", the prosecution must 'prove' the forfeiture (whatever item of property was forfeited), was 'solely' used for a remdial purpose. Additionally, attorney's need to start putting the prosecutor to the burden of proving, with written documentation, exactly where the seized/forfeited assets went; and, exactly how much the cost of arrest and prosecution was. So far, it appears the judges who have weighed the "proportionality" of the property penalty to the offense committed, are taking for granted that the governments loss's exceeded the value of the property taken. All in all, the"proportionality" test used in "Hellis" constitutes a wrongful interpretation and application of "Austin" and "Kurth Ranch".

It is also noteworthy, that the "Hellis" case, despite its own defects, did not foreclose relief to other defendants, given different facts of the case. As noted in "Hellis", that case was decided on the facts of the case.

Specifically, the court held:

"As defendant's criminal punishments did not include fine components, which at least with respect to the marijuana convictions were otherwise authorized, and in consideration of the costs of investigation and prosecution, the forfeiture imposed is proportionate to the criminal sanctions and does not constitute, on the facts of this case, an additional or successive punishment in violation of the double jeopardy principles. On the facts of this case, the forfeiture is not so punitive in either purpose of effect as to negate the legislative intention that such forfeiture be regarded as remedial or civil and not punitive." In the "Hellis" case, the defendant's out-of-pocket loss was approx. $36,000, and the court contrasted that loss with the 'applicable criminal penalties, "which in light of defendant's 'second' offender status, doubled the applicable criminal penalties, MCL 333.7413(2); MSA 14.15(7413)(2), involved up to 8 years imprisonment and a $4,000 fine or both for each possession w/intent to deliver marijuana conviction, a possible aggregate fine of $24,000. The cocaine offense was punishable by imprisonment 'only'; however, the court noted that a lessor cocaine offense was punishable by up to a $25,000 fine, MCL 333.7401(2)(a)(iv).

In summary, the July 13, 1995, Sixth Circuit decision in "U.S." v "Ursery", control in the State of Michigan, over both federal and state tribunals; and "Hellis" has effectively therefore, become overrulled and/or moot. Thanks to the reasoning of the 9th Circuit, prisoners in the state of Michigan now have a chance regain their freedom; and to ultimately prevail against a government mentality that is destuctive, rather than constructive in its never ending, self-serving, so-called war-on-drugs, and the governments capitalism thereunder. The government in its haste and greed plunder the booty... must now walk the gang plank, and forfeit criminal convictions to Davy Jones locker. It is time the Government be punished.

"United States" v "Ursery" (CA6), No. 94-1127 (July 13, 1995); 9 Mich. L.W> 1361, 1370, Vol. p, #37 (July 24, 1995); L.W. No. 20859 - 24 pgs.

Judge's Jones, J.; joined be Contie, S.J. (Milburn, J. dessenting). On appeal from the U.S. District Court, for the Eastern District of Michigan.

"Where defendant was convicted of a drug offense after suffering a civil forfeiture of property related to the drug offense, the conviction violated defendant's double jeopardy rights."

"We find that the forfeiture and conviction are punishment for the same offense because the forfeiture necessarily requires proof of the criminal offense... The criminal offense is in essence subsumed by the forfieture statute, and thus does not require an element of proof that is not required be the forfeiture action."

NINTH CIRCUIT DENIES GOVERNMENT'S PETITION FOR REHEARING IN U.S. v. $405,089.23: OUR FAVORITE LANDMARK DOUBLE JEOPARDY RULING REMAINS INTACT!
by Brenda Grantland (FEAR-List bulletin 5-30-95)

Today, May 30, 1995, the U.S. Court of Appeals for the Ninth Circuit denied the government's petition for rehearing in the landmark double jeopardy and forfeiture case of U.S. v. $405,089.23, 33 F.3d 1210 (9th Cir. Sept. 6, 1994).

That case, which we at F.E.A.R. affectionately refer to as "$405K," (pronounced four-oh-five-kay) held that civil forfeiture triggers double jeopardy protection. Under that holding, criminal defendants who were prosecuted criminally and had property forfeited in a separate civil forfeiture case, for the same offense, were entitled to relief from whichever punishment happened second.

This ruling has already resulted in the release of numerous inmates in the Ninth Circuit. The Seventh Circuit and the Fifth Circuit have also recognized that the double jeopardy clause applies to forfeiture, but their opinions included exceptions to the rule which have not been adopted by the Ninth Circuit.

For obvious reasons, the Department of Justice didn't want $405K to stand. Several months ago, the Justice Department filed a petition for rehearing or rehearing en banc.[1]

The defendants in $405K, who were representing themselves with the aid of "jailhouse lawyer" Michael Montalvo, asked F.E.A.R. to help them defend the case against rehearing. A team of volunteer F.E.A.R. lawyers, comprised of Jeffrey Steinborn (Seattle, Washington), Jeff Finer (Takoma, Washington), Shawn Perez (Santa Ana, California) and Brenda Grantland (Mill Valley, California) agreed to enter the case as counsel for defendant Charles Arlt. Michael Montalvo stayed on the team.

The F.E.A.R. defense team filed their opposition to the petition for rehearing and waited for the government's reply. No reply was ever filed.

Today, the Ninth Circuit denied rehearing, with all the panel members voting against rehearing. The full court of the Ninth Circuit then voted down rehearing en banc.[1]

Several judges[2] filed a dissenting opinion, arguing that:

By failing to rehear this case en banc, the court lets stand a decision that "could free hundreds of drug dealers across the western United States." Why a Major Drug Suspect May Go Free, S.F. Chron., May 9, 1995, at A1.

The dissenters wrote at length about the San Francisco Chronicle article from May 11 about Judge Vaughn Walker's dismissal of numerous counts of an indictment pending against Pius Aileman, an Oakland criminal defendant who has had quite a bit of negative press. The Chronicle article was so slanted in favor of the government that it could have been scripted by the Justice Department.

Nevertheless, the majority of the Ninth Circuit stuck to its guns.

This is the first actual F.E.A.R. victory in court (as well as the first case F.E.A.R. volunteers have taken on!) A celebration is in order!

This case is Ninth Circuit Court of Appeals No. 93-55947.

Footnotes:

[1] If rehearing had been granted, the Ninth Circuit would have given the case back to the same panel to render a new opinion. If "rehearing en banc" had been granted, the case would have been given to the entire panel of judges of the Ninth Circuit (rather than a 3-judge panel) for decision. A majority of the active judges of the Circuit must vote for rehearing en banc before rehearing en banc is granted.

[2] Dissenting opinion filed by Rymer, with whom Hall, Wiggins, Kozinsik, O'Scannlain, Trott and T.G. Nelson joined.

Don't Feel Sorry For the Government On These Double Jeopardy Rulings -- They Knew Better Than Defy the Constitution
by Brenda Grantland

The San Francisco Chronicle for Tuesday May 9, 1995 contains a front page story "Why A Major Drug Suspect May Go Free" by Reynolds Holding.

Although it's good that our double jeopardy challenges are finally making news, this article makes it look like the courts are going to free hundreds of major "drug dealers" for a silly technicality. Although the article explains the double jeopardy issue, it fails to mention that prosecutors have a choice which lets them forfeit assets and criminally prosecute at the same time -- criminal forfeiture. Had they used criminal forfeiture they could have tried both cases at the same time, and there would have been no double jeopardy problem.

But prosecutors didn't want to change their policies. They preferred civil forfeiture procedures -- which gave them unbelievable advantages over criminal defendants. Now they're complaining because their shortcut to due process backfired.

The Chronicle quotes San Francisco U.S. Attorney Michael Yamaguchi as saying "It's like waking up one morning and being told you now have to drive on the left side of the road."

Actually, it's more like knowing the Constitution requires you to drive on the left side of the road, but deciding that you probably won't get caught, and if you did get caught what would the courts do -- let out a lot of inmates out of prison?

Federal prosecutors had no reason to be surprised. The double jeopardy rulings are not new or sudden developments. The Supreme Court decided Halper in 1989 -- that's when they held that a non-remedial civil penalty is punishment for double jeopardy purposes. In 1993 the Supreme Court held that forfeiture is punishment. And in 1994, the Supreme Court reiterated that civil penalties that are punitive violate double jeopardy.

Rather than read Halper as a warning to clean up their act, the Justice Department decided to continue their practice of forcing defendants to fight two -- or sometimes three or four -- cases at once. They gambled that the courts would always rubber stamp whatever polices the Justice Department chose -- and they lost. Now, six years later, they have to pay the price.

ATTORNEY GRELLMAN SENTENCED -- FORFEITURE SETTLEMENT PENDING

Reno lawyer, Jack Grellman, who testified as a prosecution witness against San Francisco attorney Patrick Hallinan, was sentenced to four years probation Thursday on his guilty plea of drug smuggling.

Hallinan, who also was charged with multiple counts of drug smuggling, conspiracy and racketeering, stood trial alone and was acquitted by a jury in March. Hallinan's property that was seized, including many artifacts, has been returned.

U.S. District Judge Howard McKibben said the fact that Hallinan was acquitted made sentencing Grellman more difficult. He also ordered Grellman to perform 150 hours of community service and pay a $5,000 fine. The offense carried a potential penalty of 20 years in prison and a $250,000 fine.

Lawyers are negotiating a forfeiture settlement.

Supreme Court grants certiorari in United States v. Libretti

The Supreme Court granted certiorari on a criminal forfeiture case this week. The issue was whether it is necessary for a judge accepting a guilty plea that includes the forfeiture of property, to advise the defendant that he had a right to go to trial on whether the property was forfeitable under applicable law.

The Case is United States v. Libretti, S.Ct. # 94-7427. The citation below was United States v. Libretti, 38 F.3d 523 (10th Cir. 1994).

The Tenth Circuit opinion, issued October 19, 1994 states in relevant part:

Defendant argues that the district court erred in ordering forfeiture of the nonforfeitable property in light of his objection at the sentencing and the court's own post-judgment rulings. He alleges that factual findings must be made establishing that the assets to be forfeited are part of a continuing series of offenses. Defendant maintains that the trial testimony and change of plea and sentencing hearings show that there was not a sufficient nexus to support a forfeiture of accounts containing legitimate earnings such as his employee savings plan, IRA accounts, and bank accounts containing his paychecks.

Federal Rule of Criminal Procedure 11(f) provides that "[n]otwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea." (FN5) The government contends that Rule 11(f) applies only to the guilty plea and imposes no duty on the district court to ensure a sufficient factual basis exists to support the stipulated forfeiture in the plea agreement. Whether Rule 11(f) applies to a stipulated forfeiture in a plea agreement is an issue of first impression in this circuit. Four circuits have considered [38 F.3d 528] this issue and have reached divergent conclusions.

In United States v. Roberts, 749 F.2d 404, 409 (7th Cir.1984) (a RICO case), cert. denied, 470 U.S. 1058, 105 S.Ct. 1770, 84 L.Ed.2d 830 (1985), (FN6) the Seventh Circuit held that Rule 11(f) applies to forfeitures included as part of a plea agreement just as it applies to the guilty plea. "The mere fact that the defendant has agreed that an item is forfeitable, in a plea agreement, does not make it so; the trial court must ascertain whether it [is forfeitable]." Id. "A defendant's waiver of his right to trial cannot be said to have a factual basis, where a forfeiture of property is involved, unless the property is in fact subject to forfeiture." Id. at 410.

In United States v. Reckmeyer, 786 F.2d 1216 (4th Cir.), cert. denied, 479 U.S. 850, 107 S.Ct. 177, 93 L.Ed.2d 113 (1986), the Fourth Circuit agreed with the reasoning in Roberts that a defendant's mere agreement to forfeit an item in the plea agreement does not make the item forfeitable. The court held that Rule 11(f) "requires the district court to inquire beyond the agreement to determine if there is a factual basis for the forfeiture of the assets." Id. at 1222. That court determined, however, that the record of the Rule 11 proceeding established a sufficient factual basis for the forfeiture.

The Fifth Circuit took a more lenient approach in United States v. Bachynsky, 949 F.2d 722, 730 (5th Cir.1991), cert. denied, --- U.S. ----, 113 S.Ct. 150, 121 L.Ed.2d 101 (1992), when it held "that the requirement of Rule 11(f) that the factual basis for a plea be established at the plea hearing does not apply to an order of forfeiture." It determined the district court's order of forfeiture would be upheld if the record provided a factual basis for forfeiture. Id. (citing United States v. Crumbley, 872 F.2d 975, 977 (11th Cir.1989). Although the court acknowledged the statement in Reckmeyer that a defendant's mere acquiescence in a plea agreement that an item is forfeitable does not make it so, it further recognized that the defendant's affirmative answers to questions at the plea hearing creates a substantial burden to overcome. Because the defendant in Bachynsky had never objected at sentencing to the forfeiture provisions of the plea agreement, nor provided evidence challenging whether the property was acquired or maintained by racketeering, the Fifth Circuit concluded that the defendant had not established an inadequate factual basis for the forfeiture.

The Eleventh Circuit rejected the analysis of Reckmeyer and Roberts.United States v. Boatner, 966 F.2d 1575, 1581 (11th Cir.1992), held "that a sentencing judge is not required under Rule 11 to determine whether there is a factual basis for a defendant's concession to a criminal forfeiture pursuant to his plea bargain with the government." The court reasoned that because the forfeiture provision is "not a plea to a substantive charge, but a sanction to which the parties agree as a result of the defendant's plea," Rule 11(f) only applies to the guilty plea. Id. Because the defendant in Boatner agreed to forfeit property as a result of a bargained for exchange between the parties, the court affirmed the order of forfeiture.

We agree with the holding and reasoning in Boatner. The parties both acknowledge that criminal forfeiture under Sec. 853 is a part of the sentence, not a part of the substantive offense. The courts in Roberts, Reckmeyer, and Bachynsky fail to note this distinction. We question whether the Seventh Circuit would continue to apply the holding in Roberts in light of its more recent determinations that forfeiture is not an element of the offense but rather is punishment for an offense when a conviction has been [38 F.3d 529] entered. See United States v. Simone, 931 F.2d 1186, 1199 (7th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 584, 116 L.Ed.2d 609 (1991); United States v. Herrero, 893 F.2d 1512, 1541 (7th Cir.), cert. denied, 496 U.S. 927, 110 S.Ct. 2623, 110 L.Ed.2d 644 (1990).

In addition, it is settled law that a lawful plea agreement is enforceable. United States v. Khan, 835 F.2d 749, 752 (10th Cir.1987), cert. denied, 487 U.S. 1222, 108 S.Ct. 2881, 101 L.Ed.2d 915 (1988). The government and a defendant and his attorney may arrive at a bargain "that a specific sentence is the appropriate disposition of the case." Fed.R.Crim.P. 11(e)(1)(C); see United States v. Benchimol, 471 U.S. 453, 455, 105 S.Ct. 2103, 2104-05, 85 L.Ed.2d 462 (1985). As long as the plea agreement is lawful, a defendant should be bound by its terms. United States v. Alexander, 869 F.2d 91, 94 (2d Cir.1989).

Defendant argues that the plea agreement and, therefore, his guilty plea, were not lawful and should not be enforced because he agreed to forfeit only the assets listed in the indictment or only property directly associated with the drug transactions. He contends that the plea agreement is ambiguous and vague and he would not have knowingly and voluntarily agreed to forfeit all of his property.

The voluntariness of a guilty plea is a question of federal law subject to de novo review. United States v. Rhodes, 913 F.2d 839, 843 (10th Cir.1990), cert. denied, 498 U.S. 1122, 111 S.Ct. 1079, 112 L.Ed.2d 1184 (1991). A guilty plea must be knowing and voluntary. Santobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971); United States v. Elias, 937 F.2d 1514, 1517 (10th Cir.1991). A defendant's decision to plead guilty must be deliberate and intelligent and chosen from available alternatives. Rhodes, 913 F.2d at 843. "[T]o determine whether a plea is voluntary, a court must assess whether the defendant fully understood the consequences of the plea." United States v. Williams, 919 F.2d 1451, 1456 (10th Cir.1990), cert. denied, 499 U.S. 968, 111 S.Ct. 1604, 113 L.Ed.2d 667 (1991). The defendant's attorney "and the court have a duty to apprise the defendant of the consequences of the plea and ensure that it is voluntary." Id. Federal Rule of Criminal Procedure 11(c)(1) requires that a district court must, among other things, ensure the defendant understands the nature of the charge and the mandatory minimum and maximum penalties. Elias, 937 F.2d at 1517.

In this case, the district court thoroughly assessed whether defendant understood the consequences of the guilty plea. The court informed him that all property described in the CCE count of the indictment could be forfeited. II R. 7. Defendant only questioned the extent to which the $1,500,000 limit on forfeiture applied to future legitimate earnings. His attorney and the district court agreed that the $1,500,000 limit applied only to products of drug transactions and not to legitimate future earnings. Id. at 3-9. Thereafter, defendant stated that he had signed, read, and understood the plea agreement, and that he had no questions about it. Id. at 19-20. He further stated that he understood the consequences of his plea, including that all of his property owned by reason of any drug transaction could be forfeited. Id. at 21. Defendant conceded that he was pleading guilty because of the trial testimony received thus far. Id. at 22.

Nothing in the record indicates defendant's plea would have been different if he had been questioned further about forfeitability of his assets. He intended to forfeit all of his property without requiring the government to prove the assets were forfeitable. The plea agreement requires forfeiture pursuant to Sec. 853, which includes forfeitable assets under Sec. 853(a) and substitute assets under Sec. 853(p). See also 21 U.S.C. Sec. 853(o) (Sec. 853 is to be liberally construed).

Further, defendant received a favorable plea agreement. In exchange for forfeiting all of his property, the government recommended the minimum sentence of twenty years imprisonment and agreed to drop all other counts in the indictment. One of those counts charged him with use of firearms with silencers in drug trafficking which mandates, upon conviction, a thirty-year sentence consecutive to the sentence on the underlying drug offense. Defendant entered into the [38 F.3d 530] plea agreement after the government presented overwhelming evidence of his guilt. He now seeks the benefit of that bargain, but only to the extent it favors him. We will not require the government to undergo a fact-finding hearing and forego a substantial benefit of its bargain.

We hold that defendant is bound by the terms of the plea agreement, see Alexander, 869 F.2d at 94, in which he unambiguously forfeited all of his property. The district court's extraneous statements that defendant was only forfeiting assets listed in the CCE count of the indictment or from his drug trade do not establish that defendant did not knowingly and voluntarily forfeit all of his property. Rather, defendant agreed to forfeit all of his assets, including some that on their face had no connection with his drug dealings--e.g., "all bank accounts, investments, retirement accounts," I R. tab 210 at 3. Nothing in the agreement limits the forfeiture to those assets with an established factual basis for forfeiture. Defendant is also not limited to forfeiting only those assets directly related to the CCE conviction. Accordingly, the district court properly ordered on December 23, 1992, the forfeiture of all of defendant's assets (FN8) based on defendant's written agreement and knowing and voluntary ratification of that agreement at the change of plea hearing.