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

Second Circuit rules forfeiture case may create an exception to the long accepted government notion that a person may be prosecuted twice for the same offense as long as the second proceeding takes place in a separate sovereign's court. The Circuit Court ruled in U.S. v. G.P.S. Automotive that a federal civil forfeiture imposed after a state criminal conviction based on the same offense may well violate the Double Jeopardy Clause.

The Fifth Amendment clause, "nor shall any person be subject for the same offense to be twice put in jeopardy" proclaims a simple guarantee of freedom from multiple prosecutions for the same offense. Simple, that is, until the doctrine of "dual sovereignty" emerged during alcohol prohibition. Ever since the first application of the doctrine in 1922, legal scholars have strongly criticized the government's notion that a defendant whose conduct violates the laws of two sovereigns has "committed two different offenses by the same act."1 This legal fiction prevented state governments, many of which were unsympathetic to the federal government's liquor laws, from defeating the fed.'s ability to punish prohibition violators by bringing a sham prosecution or by imposing a minimal sentence.

The Supreme court, in effect, added the words, "by the same sovereign" to the end Double Jeopardy Clause. Framers of the Constitution never considered the possibility of this obstructive addition to the Fifth Amendment because the Constitution and its first ten amendments restricted the newly formed federal government from enacting types of laws that generally overlap the police powers of the states. In recent years, however, the vast expansion of the scope of federal laws resulted in an enormous number of crimes for which one may be subject to consecutive state and federal prosecutions.

An ongoing forfeiture case may inject the widest exception to the dual sovereignty doctrine in judicial history. On September 18, 1995, the Second Circuit Court of Appeals ruled in United States versus All Assets of G.P.S. Automotive Corp that a federal civil forfeiture imposed after a state criminal conviction based on the same offense may well violate the Double Jeopardy Clause.

Phil Schaffer and G.P.S. Automotive were convicted in a New York state court on multiple counts of possession of stolen property, illegal possession of vehicle identification numbers and falsifying business records. Phil Schaffer was sentenced to 1.33 to 4 years of imprisonment and the business he co-owned with his wife and son was fined $10,000. The U.S. government then filed civil forfeiture against all the assets of G.P.S. as well as the parcels of land on which it is located. Federal law provides for forfeiture of any motor vehicle or part on which a vehicle identification number has been removed, obliterated or altered (18 USC $ 512), as was the case on numerous vehicles seized from G.P.S.. The government also alleged the G.P.S. property was used to facilitate money laundering violations related to the stolen property, subjecting G.P.S. and any other property traceable to it, to forfeiture under 18 USC $ 981(a)(1)(A).

Phil Schaffer and G.P.S. argued that the large percentage of the proceeds of the forfeiture that would go to the state, along with the state's role in prosecuting both the criminal and civil proceedings, brings their case within an exception to the dual sovereignty doctrine defined in Bartkus v. Illinois,2 a 1959 Supreme Court ruling upholding a state prosecution following a federal acquittal for the same offense.

The "Bartkus exception to the dual sovereignty doctrine" states: "The Double Jeopardy Clause may be violated despite single prosecutions by separate sovereigns when one 'prosecuting sovereign can be said to be acting as a tool of another,'"3

When the Supreme court prominently expounded the dual sovereignty doctrine in 1959, the Double Jeopardy Clause was considered inapplicable to the states. The Second Circuit commented: "Nevertheless, the Supreme Court has continued to espouse the dual sovereignty doctrine.even after states were found to be fully subject to commands of the Double Jeopardy Clause." 

 The Second Circuit stated that if the facts of the GPS Automotive case reveal no more than the federal government's willingness, in pursuing the forfeiture for its own purpose, to pay the state for its help, then the forfeiture would not fit into the narrowly defined exception.

Until now the exception has applied only in the extraordinary situation "when one sovereign has essentially manipulated another sovereign into prosecuting." According to the Second Circuit, even substantial cooperation between state and federal agencies, including designating the state district attorney to prosecute the federal case, as was done in G.P.S. Automotive, does not fit into the Bartkus exception. But the appeals court recognized another factor, unique to civil forfeitures, where the state stands to gain a very large percentage of property forfeited to the federal government.

"In such a case," Circuit Judge Calabresi wrote for the court, "the federal government would have no interest in the forfeiture proceeding, and would be serving simply as a 'tool' for the advancement of the state's interest. The Bartkus exception seems especially germane whenever the first prosecuting authority is to receive a disproportionate share of the proceeds of a subsequent forfeiture action to be brought by a different sovereign." The ruling orders the District Court to examine the details surrounding the deal between federal and state officials, such as the division of labor and proceeds between the two agencies, who initiated the forfeiture action, and the role of the state prosecutor who was deputized to assist the U.S. Attorney in the forfeiture case.

The appeals court remanded the case back to the district court to determine if the state's percentage of whatever proceeds are derived from the forfeiture action adopted by the federal government triggered a legal exception to the dual sovereignty doctrine.

In a separate opinion (concurring with himself) Circuit Judge Calabresi felt compelled to add that in light of the vast expansion of federal laws, "the entire dual sovereignty doctrine is in need of serious reconsideration." He notes "the doctrine has been called unfaithful to the Fifth Amendment's historical roots" and "has been chided for relying on a notion of federalism that is inconsistent with other Supreme court holdings." Quoting the Supreme court in Halper v. U.S. which held that double jeopardy could apply to purportedly civil sanctions, Calabresi writes: "'This constitutional protection is intrinsically personal.' With the Double Jeopardy Clause understood in these individualistic terms, it becomes difficult to accept generalized statements of sovereign interests as justifying the clause's inapplicability to successive prosecutions by different governments."

More important than theoretical considerations, Calabresi continues, "are the dramatic changes that have occurred in the relationship between the federal government and the states" since 1959 when "the scope of federal criminal law was still quite small."

Calabresi explains the huge expansion of the scope of federal criminal law in recent years means:

".defendants in an enormous number of cases can be subjected to dual prosecutions. And this can happen even when state and federal officials, in practice, join together to take a second bite at the apple. As Judge Adams stated prophetically for the Third Circuit.(1981), at a time when the growth of federal criminal law had not yet reached its present extremes, '.permitting successive state-federal prosecutions for the same act [appears] inconsistent with what is a most ancient principle in western jurisprudenceÄthat the government may not twice place a person in jeopardy for the same offense.' 4

"Among recent important examples of successive federal-state prosecution are (1) the federal prosecution of the Los Angeles police officers accused of using excessive force on motorist Rodney King after their acquittal on state charges, (2) the federal prosecution of an African-American youth accused of murdering a Hasidic Jew in the Crown Heights section of Brooklyn, New York, after his acquittal on state charges, and (3) the Florida state prosecutionÄseeking the death penaltyÄof the anti-abortion zealot who had been convicted and sentenced to life imprisonment in federal court for killing an abortion doctor. While I express no opinion whatsoever about these particular cases or about the applicability of the Double Jeopardy Clause to them, there can be no doubt that all of these cases involved re-prosecutions in emotionally and politically charged contexts. It was to avoid political pressures for re-prosecution that the Double Jeopardy Clause was adopted. See Bartkus, 359 U.S. at 150-64 & n. 34, 79 S.Ct. at 695-02 & n. 34 (Black, J., dissenting) (recounting the use of second prosecutions in totalitarian regimes following expressions of public outcry over initial dispositions). And it is especially troublesome that the dual sovereignty doctrine keeps the Double Jeopardy Clause from protecting defendants whose punishment, after an acquittal or an allegedly inadequate sentence, is the object of public attention and political concern.

"The degree of cooperation between state and federal officials in criminal law enforcement has, moreover, reached unparalleled levels in the last few years, especially in the context of the 'war on drugs.' 5 This cooperation, which undoubtedly fosters effective enforcement of the criminal law, is surely to be encouraged. Still, this same cooperation should cause one to wonder whether it makes much sense to maintain the fiction that federal and state governments are so separate in their interests that the dual sovereignty doctrine is universally needed to protect one from the other."

"The Supreme Court has recently shown its willingness to re-consider supposedly well-settled landmarks of double jeopardy jurisprudence with respect to its definition of what constitutes prosecutions for the 'same offense.'.And the Supreme Court's decision earlier this year in United States v. Lopez, 115 S.Ct. 1624 (1995), has similarly revealed the court's willingness to give serious thought to issues of federalism at the foundation of our constitutional system, and to do so in the context of the enormous expansion of federal criminal law. In that light, a new look by the High Court at the dual sovereignty doctrine and what it means today for the safeguards the Framers sought to place in the Double Jeopardy Clause would surely be welcome."6

ENDNOTES:

1 US v. Lanza, 260 U.S. 377, 382 (1922). For examples of such criticism see Kenneth M. Murchison, The Dual Sovereignty Exception to Double Jeopardy, 14 N.Y.U. Rev. L. & Soc. Change 383, 384 (1986) (detailing the dual sovereignty doctrine's "origin in the era of national prohibition").

2 359 U.S. 121. The same year the high court also upheld a federal prosecution following a state conviction in Abbate v. U.S., 359 US 187.

3 Whalers Cove, 954 F.2nd at 38 (quoting US v. Guy, 726 F.2nd 906, 910 (2nd Cir. 1984)). The G.P.S. Automotive court left open whether their earlier decision in Whalers Cove that double jeopardy is inapplicable when separate governments prosecute the same defendant for the same offense "remains good law given recent Supreme Court holdings."

4 Calabresi quoting US v. Grimes, 641 F.2nd 96 ("the recent expansion of federal criminal.jurisdiction magnifies the impact of Bartkus and Abbate, thus rendering a re-assessment of those decisions").

5 Calabresi notes for example, Sandra Guerra,The Myth of Dual Sovereignty: Multijurisdictional Drug Law Enforcement and Double Jeopardy, 73 N.C. L. Rev. 1159, 1180-91 (1995).

6 Citing US v. Dixon, 113 S.Ct. 2849 (1993); Grady v. Corbin, 495 US 508 (1990) (reviewing and reworking standards established more than a half-century before in Blockburger v. US, 284 US 299 (1932).