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

by Judy Osburn

Appeals court decision is smashing victory for all victims of double jeopardy.

On February 5 the Tenth Circuit issued its ruling on U.S. v. 9844 S. Titan Court, the case of Colorado F.E.A.R. coordinator Francis May and her husband, Philip May. "I believe it is the best federal Circuit Court decision yetÄand not just because it was my case." F.E.A.R. president Brenda Grantland exclaimed on the internet. "The Titan Court decision goes beyond even $405,089.23 (the 9th Circuit double jeopardy case) on several points," states Brenda, who represented the Mays on their appeal. "It's a great case, and it came at just the right time. Coming out as it did, just after the Supreme Court granted certiorari in $405,089.23, indicates that the 10th Circuit is confident that $405,089.23 will be upheld. This bodes well for the coming Supreme Court decisions. This should also give the lower courts the confidence to go forward and decide the pending double jeopardy challenges rather than waiting to see what the U.S. Supreme Court will do."

This was also a major victory for Philip and Frances May. They appealed the summary judgment forfeiting their home, cash and interior design business properties. Their property was seized after Philip May was indicted for possession and conspiracy to distribute cocaine. After he was convicted the district court summarily forfeited their property, even though Francis May presented evidence that she was an innocent owner of their jointly held property. She contended her husband's drug trafficking was an outgrowth of an extramarital affair with his co-conspirator in the criminal case. The Circuit Court reversed the summary judgment, ordering the return of Philip May's interest in their properties on double jeopardy grounds. Ironically, the portion of the properties that Frances was defending as an innocent owner had to be remanded for trial, since she was never charged with a crime and therefore had no double jeopardy defense.

The 10th Circuit concluded the district court erred in summarily forfeiting Frances May's interest in the property, and ordered the case to trial regarding her innocent ownership in the property she jointly held with her husband. A large section of the court opinion delves into Colorado state law governing Frances May's interest in property held in her husband's name. The Circuit Court held state law precluded Frances from claiming ownership to the business properties titled to her husband. Therefore the court instructed these properties be entirely returned to Philip May, because the forfeiture proceeding was a second prosecution of the offense for which he had been convicted. Philip May's interest in their jointly owned property was also ordered returned to him. 

 "The basis of the Fifth Amendment protection against double jeopardy is that a person shall not be harassed by successive trials; that an accused shall not have to marshal the resources and energies necessary for his defense more than once for the same crime." 1 However, wrote Circuit Judge Henry for the court, the traditional view exempted civil forfeitures from double jeopardy analysis because a civil proceeding against property was not a punishment. "Mr. May urges that this view can no longer be maintained in the wake of the Supreme Court's decisions in United States v. Halper, Austin v. United States, and Department of Revenue v. Kurth Ranch. We agree."2

The government had argued that the double jeopardy issue was not raised at the trial court and therefore could not be appealed. The Circuit Court replied that "a violation of double jeopardy 'would surely be the type of plain error which could be raised for the first time on appeal.'" 3 Especially, noted the court, when the law changes while the appeal is still pending, as happened in this case. The court also rejected the government's argument that Philip May "waived" his rights under the Double Jeopardy Clause when he failed to assert those rights at the district court.

The 10th Circuit agreed with the 9th Circuit decision in $405,089.23 that forfeiture under the "proceeds" provisions is punishment, and explained at length why such forfeitures must receive the same treatment regarding double jeopardy as forfeiture of "facilitating" property. Disagreeing with the 5th Circuit's reasoning that forfeiture of alleged drug proceeds is comparable to depriving a bank robber of his loot, 4 the 10th Circuit pointed out there is no victim to whom drug proceeds may be returned. Additionally, "proceeds" forfeiture statutes provide for forfeiture of all moneys "intended for use" in an illegal transaction.

The court also explained why the government's notion of characterizing dual criminal and civil proceedings as a "single coordinated prosecution" (as upheld by the 2nd Circuit in US v. Millan 5 and adopted by the 11th Circuit 6 is inconsistent with case law as well as the intent of the Double Jeopardy Clause. Circuit Judge Henry wrote for the court: "The practice of instituting multiple proceedings against a single defendant, which the government benignly terms a 'coordinated law-enforcement effort,' has as much or more capacity to harass and exhaust the defendant than does a post hoc decision to retry him." The court chided the government's attempt to make two trials a single jeopardy. Quoting the 9th Circuit observation in $405,089.23, the court stated: "Millan 'contradicts controlling Supreme Court precedent as well as common sense.'"

The government also contended that because civil forfeiture does not require proof of the owner's unlawful conduct, the forfeiture is not a prosecution for the same offense as the criminal prosecution. According to the government, the forfeiture and the criminal penalty are not punishments for the same offense "because under Blockburger v. US,7 the forfeiture 'offense' and the crime each require proof of a fact that the other does not, or they do punish the same offense but with congressional approval."8 In rejecting both of these arguments the court explained the Blockburger test in clear and accurate language.

ENDNOTES:

1 Appeal From The United States District Court for the District of Colorado (D.C. No. 92-F-1365), U.S. v. 9844 South Titan Court, filed 2/5/96, quoting Abbate v. U.S., 359 U.S. 187, 198-99 (1959).

2 US v. Titan Court, (citings omitted).

3 US v. Titan Court ,, quoting US v. Gunter, 546 F.2d 861, 865 (10th circuit) cert. denied, 430 U.S. 947 (1977), and cert. denied, 431 U.S. 920 (1977).

4 Citing US v. Tilley, 18 F.3d 295.

5 2 F.3d 17 (1993), an example of 2nd Circuit double-speak:"the fact of separate proceedings is not dispositive in determining whether the government is employing a single proceeding."(at page20).F.E.A.R. filed an amicus brief before the Second Circuit Court of Appeals in U.S. v. Millan.

6 Adopted in the 11th Circuit in US v. 18755 N. Bay Rd., 13 F.3d 1493, 1499 (1994).

7 284 U.S. 299 (1932).

8 US v. Titan Court, adding: "Neither argument is persuasive."