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

Sixth Ciruit case holds that criminal conviction following civil forfeiture violates the Double Jeopardy Clause.

The 6th Circuit Court of Appeals reversed the criminal conviction of a marijuana grower on July 13, 1995, on double jeopardy grounds, thereby vacating his sentence of 63 months imprisonment plus 4 years supervision. The U.S. government sought forfeiture of his residence, resulting in a settlement agreement in which Guy Jerome Ursery and his wife paid the government $13,250.

A federal grand jury for the Eastern District of Michigan brought the criminal indictment against Ursery some four months after his home was seized, but prior to the time the consent judgment for forfeiture was filed.

The district court denied Ursery's motion for dismissal of the criminal charges on double jeopardy grounds, stating that because the forfeiture proceeding was settled by a consent judgment it was "not an adjudication." Furthermore, said the district court, "the forfeiture proceeding and criminal conviction were 'part of a single, coordinated prosecution.'"*

The Circuit Court disagreed, stating the consent judgment in the forfeiture proceeding was an adjudication for double jeopardy purposes "because double jeopardy attached when the judgment of forfeiture was entered." The court compared the civil settlement agreement to a plea agreement in a criminal case. The 6th Circuit joined the 9th circuit in refusing "to whitewash the double jeopardy violation.by affording constitutional significance to the label of a 'single coordinated prosecution.'"

The government also argued that the civil forfeiture and criminal conviction did not constitute punishments for the same offense "because the criminal prosecution requires proof that a person, the defendant, committed the crime, while the forfeiture requires proof that the property subject to forfeiture has been involved in the commission of a criminal violation. Thus each offense requires an element that the other does not." The Sixth Circuit also rejected this argument.

The Supreme Court granted certiorari on January 11, 1996. A decision is expected this term.

* U.S. v. Guy Jerome Ursery, electronic citation: 1995 FED Ap[p> 0209P (6th Cir.), File Name:

95a0209p.06; No. 94-1127, at II B, citing U.S. v. Millan (2 F.3d 17, 20, 2nd Cir, 1993).