F.E.A.R. Chronicles newsletter
volume 3 number 2 (March 1996)

The Justice Department's response to recent double jeopardy limits ignores justice in pursuit of assets belonging to those who are either acquitted or convicted of simple misdemeanors.

After decades of claiming that civil forfeitre is not punishment, the DoJ is now claiming civil forfeitre is only punishment, nothing more.

The Department of Justice now advises federal prosecutors trying to evade Double Jeopardy limits imposed by the Ninth Circuit's recent holding in 405K (U.S. v. $405, 089.251) to argue that forfeiture is merely punishment, not a separate prosecution. An article titled "Responding to Double Jeopardy Challenges" appearing in the DoJ's Asset Forfeiture News advises federal prosecutors to remind courts in every case "that the proper analysis is the prohibition against multiple punishments" rather than multiple prosecutions. Therefore, the DoJ argues, "unless punishment is actually imposed in both the criminal case and the civil case, there is no double jeopardy problem." Such is the case, says DoJ, when there is an acquittal in a criminal case, or when the court eventually returns property to the claimant.

FEAR board member Kathy Bergman comments, "If an acquittal means jeopardy hasn't attached, wouldn't it stand to reason that someone could be criminally tried again and again until the government finally got its conviction?"

In fact, the Ninth Circuit is quite clear on the subject of double jeopardy, stating: "The most basic element of the Double Jeopardy Clause is the protection it affords against successive prosecutionsÄthat is, against efforts to impose punishment for the same offense in two or more separate proceedings."

The DoJ also argues the government may pursue civil and criminal prosecutions in separate parallel proceedings without violating the Double Jeopardy Clause because "the evil against which the Double Jeopardy Clause protectsÄthe possibility that the government will seek an additional sanction against a defendant because it is dissatisfied with the outcome of an earlier prosecutionÄsimply is not present when the government institutes its 'second' case while the first is still pending."

The government's pursuit of civil forfeiture after a criminal acquittal ignores the DoJ's own narrow definition of the evil against which the Double Jeopardy Clause protects. In addition, the DoJ recommends another avenue of getting around the Ninth Circuit ruling. The government advises prosecutors go after the home belonging to a defendant who is merely convicted of a misdemeanor rather than a felony.

Since forfeiture of real property requires a felony offense, argues the government, a defendant arrested for growing marijuana in her basement who pled guilty to simple possession is then subject to another prosecution for forfeiture of her home because cultivation is a "separate offense" from simple possession. Since these prosecutions took place in the Ninth Circuit, if the defendant had been convicted of cultivating commercial quantities of the prohibited herb she would have been protected from multiple prosecutions, or multiple punishments as DoJ doublespeak would have it. However, the district court in this case ruled the simple misdemeanor possession conviction did not prevent the government from punishing her a second time through civil forfeiture.

The DoJ also advises that double jeopardy problems can generally be avoided by basing a prosecution on one discrete event, and the civil forfeiture on another. "For example, if a person grows marijuana on two parcels and is prosecuted only for the offense occurring on the first parcel, there is no double jeopardy bar to forfeiting the second parcel in a subsequent civil case."

At least one court has bought into this "separate elements" argument. In U.S. v. Blue the district court held that forfeiture of alleged drug proceeds does not bar a criminal indictment for conspiracy to distribute drugs because the forfeiture statute requires proof of an exchange of a controlled substance and the conspiracy statutes require proof of an agreement rather than proof of an exchange.

The government also offers "a broader argument that civil forfeiture and criminal prosecution can never be for the same offense because each always requires proof of an element that the other does not. There can be no double jeopardy, the government contends, because the criminal proceeding is against a person and the civil proceeding is against the property "and it is irrelevant whether the crime was committed by the property owner or someone else."

And as a last resort the government argues: "Congress intended to authorize multiple punishments."