United States v. Baird ( 1995 )


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  •                                                                                                                            Opinions of the United
    1995 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    8-11-1995
    United States v Baird
    Precedential or Non-Precedential:
    Docket 95-1202
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    Recommended Citation
    "United States v Baird" (1995). 1995 Decisions. Paper 217.
    http://digitalcommons.law.villanova.edu/thirdcircuit_1995/217
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    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ___________
    No. 95-1202
    ___________
    UNITED STATES OF AMERICA
    vs.
    FRANK L. BAIRD,
    Appellant.
    ___________
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE EASTERN DISTRICT OF PENNSYLVANIA
    (D.C. Criminal No. 94-cr-00215)
    ___________
    ARGUED MAY 18, 1995
    BEFORE:   COWEN, LEWIS and SAROKIN, Circuit Judges.
    (Filed       August 11, 1995)
    ___________
    Richard S. Wasserbly (ARGUED)
    100 East Court Street
    Doylestown, PA 18901
    Stuart M. Wilder (ARGUED)
    Pratt, Brett, Thome & Lyons
    69 East Court Street
    Doylestown, PA 18901
    Attorneys for Appellant
    1
    Walter S. Batty, Jr. (ARGUED)
    Sonia C. Jaipaul (ARGUED)
    Joseph T. Labrum, III
    Office of the United States Attorney
    615 Chestnut Street
    Suite 1250
    Philadelphia, PA 19106
    Attorneys for Appellee
    ___________
    OPINION OF THE COURT
    ___________
    LEWIS, Circuit Judge.
    In this appeal, the appellant, Frank L. Baird
    ("Baird"), seeks dismissal on double jeopardy grounds of a
    superseding indictment charging him with violations of federal
    criminal law.    He argues that as a result of a prior
    administrative forfeiture of monies seized from his residence, he
    has already been once "punished" for the offenses alleged in the
    indictment.    A subsequent criminal prosecution would, he argues,
    run afoul of the Double Jeopardy Clause.
    To assess the merits of Baird's unusual double jeopardy
    argument, we must determine whether Baird was "punished" as a
    result of the administrative forfeiture of money seized from his
    residence.    We conclude that Baird was not "punished" by the
    administrative forfeiture of seized money never determined to be
    his.   Moreover, assuming, arguendo, that the forfeited money
    belonged to Baird, we further conclude that the administrative
    2
    forfeiture did not place Baird in a former jeopardy.    Therefore,
    the pending prosecution of Baird for the offenses alleged in the
    superseding indictment will not subject Baird to double jeopardy.
    For these reasons, we will affirm the district court's denial of
    Baird's motion to dismiss.
    I.   Facts and Procedural History
    In April of 1994, law enforcement officials conducted a
    search of Frank Baird's residence on the suspicion that he was
    manufacturing and selling 3,4 methylenedioxy-methamphetamine
    ("Ecstacy").   The search of Baird's residence turned up an
    elaborate clandestine Ecstacy-manufacturing operation, complete
    with precursor chemicals, extensive laboratory apparatus, coded
    formulas for the manufacture of the drug, and stock piles of
    already manufactured Ecstacy.    In addition, $2,582 in United
    States currency was found in the bedroom area of Baird's
    residence.   This money was seized by law enforcement officials.
    In a superseding indictment returned in August of 1994,
    Baird was charged with various drug and drug-related violations
    of federal criminal law.0    Prior to the returning of this
    0
    Baird was charged in Count 1 with conspiracy to manufacture
    and distribute Ecstacy; in Count 2, with the manufacture of
    approximately 20 kilograms of Ecstacy; in Count 3, with
    possessing approximately 32 kilograms of Ecstacy with the intent
    to distribute it within 1000 feet of the Baldwin School located
    in Bryn Mawr, Pennsylvania; in Count 4, with possessing
    approximately 32 kilograms of Ecstacy with the intent to
    distribute it; in Count 5, with attempt to manufacture Ecstacy;
    in Count 6, with attempt to manufacture amphetamine; in Count 7,
    with creating a substantial risk of harm to human life while
    manufacturing and attempting to manufacture Ecstacy; in Count 8,
    with maintaining a place for the purpose of manufacturing
    Ecstacy; and in Count 9, with carrying a firearm during and in
    relation to a drug trafficking crime for which Baird could be
    3
    indictment against him, however, the Drug Enforcement
    Administration ("DEA") carried out the administrative forfeiture
    of the $2,582 seized from Baird's residence.
    In February of 1995, Baird filed a pre-trial motion to
    dismiss the superseding indictment on double jeopardy grounds.
    The district court denied Baird's motion, finding under United
    States v. Torres, 
    28 F.3d 1463
     (7th Cir. 1994), and United States
    v. Tilley, 
    18 F.3d 295
     (5th Cir. 1994), that initial jeopardy did
    not attach as a result of the administrative forfeiture of the
    seized money.    This interlocutory appeal followed.   We have
    stayed Baird's trial pending resolution of his appeal.
    II.   Jurisdiction and Standard of Review
    Subject matter jurisdiction of the district court is
    based upon 
    18 U.S.C. § 3231.0
        We have jurisdiction over Baird's
    appeal under 
    28 U.S.C. § 12910
     and the collateral order doctrine
    announced in Cohen v. Beneficial Industrial Loan Corp., 
    337 U.S. 541
     (1949).     See Witte v. United States, ___ U.S. ___, 
    115 S. Ct. 2199
     (1995) (holding that a multiple punishments double jeopardy
    prosecuted in a Court of the United States, that is, possession
    of Ecstacy with the intent to distribute it, as charged in
    Count 4.
    0
    
    18 U.S.C. § 3231
     provides:
    The district courts of the United States
    shall have original jurisdiction, exclusive
    of the courts of the States, of all offenses
    against the laws of the United States.
    0
    
    28 U.S.C. § 1291
     provides:
    The courts of appeals . . .   shall have
    jurisdiction of appeals from all   final
    decisions of the district courts   of the
    United States . . . except where   a direct
    review may be had in the Supreme   Court.
    4
    claim is ripe for appellate review even where the claimant has
    yet to have been a second time convicted).0    Our review of the
    double jeopardy issue in this case is plenary.       See Epstein
    Family Partnership v. Kmart Corp., 
    13 F.3d 762
    , 766 (3d Cir.
    1994) (legal questions are subject to plenary appellate review).
    III.   Double Jeopardy Analysis
    The Double Jeopardy Clause of the Fifth Amendment0 has
    been said to protect against three distinct abuses:       a second
    prosecution for the same offense after acquittal; a second
    prosecution for the same offense after conviction; and multiple
    punishments for the same offense.     See, e.g., North Carolina v.
    Pearce, 
    395 U.S. 711
    , 717 (1969); Schiro v. Farley, 
    114 S. Ct. 783
    , 789 (1994).   "These protections stem from the underlying
    premise that a defendant should not be twice tried or punished
    for the same offense."    Schiro, 
    114 S. Ct. at 789
    .    According to
    the parties, it is the third of these abuses -- multiple
    punishments for the same offense -- which is of concern in this
    appeal.
    The Supreme Court has stated that "the primary evil to
    be guarded against [by the Double Jeopardy Clause] is successive
    0
    The government has filed a motion to dismiss Baird's appeal
    in which it argues that the right Baird asserts -- the right not
    to be punished twice for the same offense -- can be fully
    vindicated on appeal at the conclusion of Baird's trial, and that
    we therefore lack jurisdiction under the collateral order
    doctrine to hear Baird's appeal. In light of the recently
    decided Witte v. United States, this argument is clearly
    untenable. We will, therefore, deny the government's motion to
    dismiss.
    0
    The Double Jeopardy Clause provides: "[N]or shall any
    person be subject for the same offense to be twice put in
    jeopardy of life or limb . . . ." U.S. Const. Amdt. 5.
    5
    prosecutions:     ``[T]he prohibition against multiple trials is the
    controlling constitutional principle.'"    
    Id.
     (citations omitted).
    Nevertheless, the prohibition against multiple punishments for
    the same offense has "deep roots in our history and our
    jurisprudence."    United States v. Halper, 
    490 U.S. 435
    , 440
    (1989).
    As early as 1641, the Colony of Massachusetts
    in its "Body of Liberties" stated: "No man
    shall be twise sentenced by Civill Justice
    for one and the same Crime, offence, or
    Trespasse." In drafting his initial version
    of what came to be our Double Jeopardy
    Clause, James Madison focused explicitly on
    the issue of multiple punishment: "No person
    shall be subject, except in cases of
    impeachment, to more than one punishment or
    one trial for the same offence." In our case
    law too, this Court, over a century ago,
    observed: "If there is anything settled in
    the jurisprudence of England and America, it
    is that no man can be twice lawfully punished
    for the same offence." Ex parte Lange, 18
    Wall 163, 168, 
    21 L.Ed. 872
     (1874).
    
    Id.
     (some citations omitted).
    In two recent unanimous decisions, the Supreme Court
    gave the "no multiple punishments" rule a "breadth of effect it
    had never before enjoyed."     See Montana Dept. of Rev. v. Kurth
    Ranch, 
    114 S. Ct. 1937
    , 1957 (1994) (Scalia, J., dissenting).       In
    the first of these, United States v. Halper, 
    490 U.S. 435
     (1989),
    the Court for the first time announced that civil penalties may,
    in certain instances, constitute "punishment" for double jeopardy
    purposes.   Halper, 
    490 U.S. at 448
    .   In the second, Austin v.
    United States, 
    113 S. Ct. 2801
     (1993), the Court relied upon
    Halper to conclude that civil forfeitures undertaken pursuant to
    6
    
    21 U.S.C. §§ 881
    (a)(4) and (a)(7)0 constitute "punishment" for
    purposes of Eighth Amendment Excessive Fines Clause0 analysis.
    Austin, 
    113 S. Ct. at 2812
    .   While Austin addressed the meaning
    of "punishment" in a different context, we agree with the Court
    of Appeals for the Ninth Circuit:   the "only fair reading of the
    Court's decision in Austin is that it resolves the ``punishment'
    issue with respect to forfeiture cases for purposes of the Double
    Jeopardy Clause as well as the Excessive Fines Clause."   United
    States v. $405,089.23 United States Currency, 
    33 F.3d 1210
    , 1219
    (9th Cir. 1994), opinion amended on denial of rehearing, ___ F.3d
    ____, 
    1995 WL 321826
     (9th Cir. 1995); see also David Smith
    Prosecution and Defense of Forfeiture Cases ¶ 12.10[2], at 12-131
    0
    These statutes provide for the forfeiture of:
    (4) All conveyances, including
    aircraft, vehicles, or vessels, which are
    used, or are intended for use, to transport,
    or in any manner to facilitate the
    transportation, sale, receipt, possession, or
    concealment of [controlled substances, their
    raw materials, and equipment used in their
    manufacture and distribution]
    . . . .
    (7) All real property, including any
    right, title, and interest (including any
    leasehold interest) in the whole of any lot
    or tract of land and any appurtenances or
    improvements, which is used, or intended to
    be used, in any manner or part, to commit, or
    to facilitate the commission of, a violation
    of this subchapter punishable by more than
    one year's imprisonment . . . .
    
    21 U.S.C. §§ 881
    (a)(4), (7).
    0
    The Eighth Amendment provides: "Excessive bail shall not
    be required, nor excessive fines imposed, nor cruel and unusual
    punishments inflicted." U.S. Const. Amdt. 8.
    7
    ("The Supreme Court's decision in Austin v. United States, makes
    it clear that Halper's double jeopardy protections do apply to
    the vast majority of civil forfeiture cases.").
    According to Baird, together, Halper and Austin
    establish that the administrative forfeiture of money under 
    21 U.S.C. § 881
    (a)(6)0 constitutes "punishment" for purposes of
    double jeopardy analysis.   We do not think Halper and Austin go
    so far.   While these precedents do suggest that the civil
    forfeiture of money under 
    21 U.S.C. § 881
    (a)(6) is "punishment"
    precluding the meting out of additional punishment for the "same
    offence" by the "same sovereign" in a subsequent proceeding, see
    $405,089.23 United States Currency, 
    33 F.3d at 1222
     (holding that
    civil forfeitures of drug proceeds under 
    21 U.S.C. § 881
    (a)(6)
    constitute "punishment" under Halper and Austin); but see Tilley,
    
    18 F.3d at 300
     (holding that civil forfeitures of drug proceeds
    do not constitute "punishment" for double jeopardy purposes),
    Halper and Austin do not suggest, let alone establish, that
    administrative forfeiture under 881(a)(6) amounts to "punishment"
    relevant to the double jeopardy inquiry.   To understand the
    critical distinction we are drawing between civil and
    0
    
    21 U.S.C. § 881
    (a)(6) provides for the forfeiture of:
    All moneys, negotiable instruments,
    securities, or other things of value
    furnished or intended to be furnished by any
    person in exchange for a controlled substance
    in violation of this subchapter, all proceeds
    traceable to such an exchange, and all
    moneys, negotiable instruments, and
    securities used or intended to be used to
    facilitate any violation of this subchapter
    . . . .
    8
    administrative forfeiture, a brief discussion of the nature and
    process of administrative forfeiture is in order.
    The purpose of administrative forfeiture is "to save
    the government the time and expense of [a] judicial [forfeiture]
    proceeding in cases where the value of the seized property [is]
    small."   United States v. United States Currency Etc., 
    754 F.2d 208
    , 211 (7th Cir. 1985).0   In keeping with this purpose, Federal
    civil forfeiture statutes allow certain statutorily defined
    categories of property to be forfeited administratively, i.e.,
    without the filing of a civil forfeiture action in federal
    district court.   See David Smith Prosecution and Defense of
    Forfeiture Cases ¶ 6.01, at 6-1.
    The administrative forfeiture procedure begins with the
    seizing agency, in this case the DEA, publishing a notice of
    seizure and intent to forfeit once a week for at least three
    successive weeks in a newspaper of general circulation in the
    judicial district in which the seizure occurred.      
    19 U.S.C. § 1607
    (a); 
    21 C.F.R. § 1316.75
    .       The agency is also statutorily
    required to give personal written notice of the seizure and
    information on the applicable procedure to any party who appears
    to have an interest in the seized property.      
    19 U.S.C. § 1607
    (a).
    A person may contest an administrative forfeiture, at any time
    within twenty days of the first publication of the notice of
    seizure, by filing a claim "stating his [or her] interest
    0
    Under 
    19 U.S.C. § 1607
    (a), administrative forfeiture may be
    undertaken to effect the forfeiture of as much as $500,000 in
    United States currency.
    9
    therein," and posting a cost bond of $5,000 or ten percent of the
    value of the property, whichever is less, but not less than $250.
    
    19 U.S.C. § 1608
    .   The proper and timely filing of a claim and
    cost bond has the effect of stopping the administrative
    forfeiture process, and forcing the seizing agency to refer the
    matter to the United States Attorney for the district where the
    property was seized for the institution of judicial forfeiture
    proceedings in the ordinary mode prescribed by law.   
    19 U.S.C. §§ 1603
    (b) and 1608; 
    21 C.F.R. § 1316.76
    (b).   Where no person
    files a claim to the seized property within the statutory period,
    the agency is authorized to declare the property forfeited.    
    19 U.S.C. § 1609
    (b); 
    21 C.F.R. § 1316.77
    .
    In sum, administrative forfeiture is a procedure
    available to the government "only if the value of the property
    seized is less than the jurisdictional amount and if no claim to
    the property is filed within the twenty days after the date of
    first publication of the notice of seizure."   United States
    Currency Etc., 
    754 F.2d at 212
     (emphasis in the original).
    Significantly for our purposes, administrative forfeiture is only
    appropriate in cases where the seized property in question goes
    unclaimed.   Without overstating it, administrative forfeiture is,
    in reality, a non-proceeding -- it is merely the consequence of
    no one having come forward to claim the property seized or
    contest its forfeitability.   With this introduction to
    administrative forfeiture in mind, we turn now to determine the
    merits of Baird's double jeopardy claim.
    10
    Without adopting a position on the matter, we can
    certainly understand how a court might conclude that civil
    forfeiture under 
    21 U.S.C. § 881
    (a)(6) of drug proceeds
    constitutes "punishment" for double jeopardy purposes.    See
    $405,089.23 United States Currency, 
    33 F.3d at 1218-22
    .   However,
    we cannot fathom how an administrative forfeiture, under section
    881(a)(6), of unclaimed alleged drug proceeds could possibly be
    held to constitute "punishment" in relation to an individual's
    double jeopardy claim.   Any "punishment" resulting from the
    administrative forfeiture of suspected drug proceeds is
    punishment only in the abstract, wholly unattached to any
    specific person, and thus cannot serve as the basis for a double
    jeopardy claim.   This is because administrative forfeiture does
    not, and, by its very definition, cannot, entail a determination
    of ownership of the property to be forfeited.   All property
    administratively forfeited is, as a matter of law, "ownerless"
    property, and the taking of ownerless property "punishes" no one.
    Because Baird never asserted an interest in the money that was
    seized from his residence, he cannot now claim to have been
    punished by its forfeiture.
    Even were we to assume, arguendo, that Baird was the
    owner of the seized and forfeited money, we would nonetheless
    affirm the district court's denial of Baird's motion to dismiss
    because we do not agree that administrative forfeitures place in
    jeopardy the person whose property is so forfeited.
    Succinctly stated, "[y]ou can't have double jeopardy
    without a former jeopardy[;]" that is, to prevail on a double
    11
    jeopardy claim, former jeopardy must be shown to have attached.
    United States v. Torres, 
    28 F.3d 1463
     (7th Cir. 1994) (citing
    Serfass v. United States, 
    420 U.S. 377
    , 389 (1975).    In essence,
    Baird asks us to find that he was placed in jeopardy by the non-
    judicial administrative forfeiture process undertaken in this
    case.   In rejecting this argument, we are compelled to explain
    what it means to be placed "in jeopardy."
    The Double Jeopardy Clause was "designed to protect an
    individual from being subjected to the hazards of trial and
    possible conviction more than once for an alleged offense." Green
    v. United States, 
    355 U.S. 184
    , 187 (1957).
    The underlying idea, one that is deeply
    ingrained in at least the Anglo-American
    system of jurisprudence, is that the State
    with all its resources and power should not
    be allowed to make repeated attempts to
    convict an individual for an alleged offense,
    thereby subjecting him [or her] to
    embarrassment, expense and ordeal and
    compelling him [or her] to live in a
    continuing state of anxiety and insecurity,
    as well as enhancing the possibility that
    even though innocent he [or she] may be found
    guilty.
    
    Id. at 187-88
    .   As an aid to the resolution of double jeopardy
    claims, "courts have found it useful to define a point in
    criminal [and, post-Halper, civil] proceedings at which the
    constitutional purposes and policies [behind the Double Jeopardy
    Clause] are implicated by resort to the concept of ``attachment of
    jeopardy.'"   Serfass, 
    420 U.S. at 388
    .   In the case of a jury
    trial, for example, jeopardy is understood as attaching when the
    jury is empaneled and sworn.   
    Id.
       In the case of a non-jury
    12
    trial, jeopardy has been said to attach when the court begins to
    hear evidence.   
    Id.
       In any event, the Court has "consistently
    adhered to the view that jeopardy does not attach, and the
    constitutional [double jeopardy] prohibition can have no
    application, until a defendant is ``put to trial before the trier
    of facts, whether the trier be a jury or a judge.'"     Serfass, 
    420 U.S. at 388
     (emphasis supplied).
    Both the history of the Double Jeopardy
    Clause and its terms demonstrate that it does
    not come into play until a proceeding begins
    before a trier "having jurisdiction to try
    the question of the guilt or innocence of the
    accused." Without risk of a determination of
    guilt, jeopardy does not attach, and neither
    an appeal nor further prosecution constitutes
    double jeopardy.
    
    Id.
     (citations omitted).   It should be clear from this
    description of the "attachment" concept that jeopardy does not,
    and cannot, attach until one is made a party to a proceeding
    before a trier of fact having jurisdiction to try the question of
    guilt or innocence, and that, until such time, the constitutional
    double jeopardy prohibition can have no application.0
    0
    In Halper and Austin, and, for that matter, in Montana Dept. of
    Rev. v. Kurth Ranch, 
    114 S. Ct. 1937
     (1994), the Court did not
    discuss the attachment threshold issue. We do not take the
    Court's failure to discuss "attachment" in these cases to signify
    that it has intended, by implication, to do away with the
    venerable "attachment" threshold requirement. In each of these
    three cases, it was clear that the double jeopardy claimant or
    claimants suffered "punishment" only after having first been made
    a party to a proceeding before a trier of fact with jurisdiction
    to decide "innocence" or "guilt." Thus, the "attachment"
    threshold was, in each of these cases, clearly enough satisfied
    that no discussion of it was required.
    13
    Because Baird failed to contest the forfeiture, he
    never became a party to any judicial proceeding, criminal or
    civil.   In fact, no judicial proceeding occurred prior to the
    forfeiture of the money -- such being the very nature of
    administrative forfeiture.   Baird has therefore yet to have been
    placed in jeopardy, or at risk, of a determination of "guilt" and
    the concomitant imposition of "punishment."   Like the double
    jeopardy claimant in Torres, as a non-party to the administrative
    forfeiture process, Baird was not, and could not have been,
    placed at risk by that process.    And without having been placed
    at risk of a determination of guilt, jeopardy did not attach as a
    consequence of the administrative forfeiture.   Thus, "neither an
    appeal nor further prosecution [of Baird would] constitute[]
    double jeopardy."   Torres, 
    28 F.3d at 1465
     (quoting Serfass, 
    420 U.S. at 389
    ).
    By asking us to find a double jeopardy violation in his
    case, Baird is asking, essentially, that we give to the "no
    multiple punishments" rule a breadth of effect greater even than
    that given to it by Halper, Austin and Kurth Ranch.    Baird would
    have us conclude that multiple punishments, per se, violate the
    Double Jeopardy Clause.   Even under the above precedents, this
    just isn't so.   Prior to Halper, the "no multiple punishments"
    rule was of rather limited effect -- merely proscribing the
    imposition of those cumulative punishments, for example, fine and
    incarceration, not authorized by the legislature.   See Halper,
    
    490 U.S. at
    451 n.10.   As noted above, Halper extended the no-
    double-punishments rule to civil penalties.   Halper also
    14
    "affirm[ed] that [the no multiple punishments rule] demand[s]
    more than mere fidelity to legislative intent . . . ."   Kurth
    Ranch, 
    114 S. Ct. at 1957
     (Scalia, J., dissenting).
    Significantly, however, Halper did not remove from the double
    jeopardy claimant's shoulders the burden of establishing a former
    jeopardy.    A post-Halper double jeopardy claimant in the position
    of Baird, therefore, cannot prevail merely upon a showing that he
    or she has been once punished for the same offense by the same
    sovereign.   Rather, the post-Halper double jeopardy claimant must
    also show that the initial punishment was meted out during the
    course of a prior proceeding having the "functional equivalen[ce]
    of a [prior] criminal prosecution that placed the [claimant] in
    jeopardy . . . ``for the same offence.'"   Kurth Ranch, 
    114 S. Ct. at 1948
    .    In other words, to prevail on his post-Halper double
    jeopardy claim, Baird would have to establish a former jeopardy.0
    Because of the very manner in which the seized property was
    forfeited, this he was unable to do.
    0
    The dissent argues that participation in a forfeiture proceeding
    should not be a precondition to a double jeopardy claim. This
    argument does away with the multiple jeopardy requirement and is,
    therefore, contrary to Supreme Court precedent, see Serfass, 
    420 U.S. 377
     (1975), not to mention the language of the Double
    Jeopardy Clause itself. We are also troubled by the suggestion,
    implicit in the dissent, that one can be "punished" in a manner
    relevant to the Double Jeopardy Clause without having been
    subjected to any judicial process whatsoever. "Unless the whole
    doctrine of our system of jurisprudence, both the Constitution
    and the common law, for the protection of personal rights . . .
    [is] a nullity," Ex Parte Lange, 
    85 U.S. 163
    , 176 (1874), no one
    may be "punished" in a manner relevant to the Double Jeopardy
    Clause without first having been subjected to some form of
    judicial procedure, either in the form of a criminal prosecution
    or the "functional equivalent" thereof.
    15
    IV.   Conclusion
    Having concluded that we have jurisdiction to hear this
    appeal, and having further concluded that Frank Baird was not
    punished as a result of the administrative forfeiture of the
    money seized from his residence, and that a former jeopardy did
    not attach as a result of the administrative forfeiture of money
    assumed for the sake of argument to have been Baird's property,
    we will deny the government's motion to dismiss this appeal, and
    affirm the district court's denial of Baird's motion to dismiss
    the superseding indictment on double jeopardy grounds.
    _________________________
    16
    17
    United States v. Frank L. Baird, No. 95-1202.
    SAROKIN, Circuit Judge, dissenting.
    I agree with the majority that this court has jurisdiction over defendant's appeal.
    op. at      [Typescript at 4-5]. Accordingly, I too would deny the United States's mo
    dismiss the appeal for lack of jurisdiction.    On the merits, I conclude that forfei
    pursuant to 
    21 U.S.C.A. § 881
    (a)(6) may constitute punishment for purposes of the D
    Jeopardy Clause. I respectfully dissent because I believe that double jeopardy can
    following a forfeiture, even where defendant has not participated in the forfeiture
    proceeding, if the defendant can establish that he was the owner of the forfeited p
    and that such forfeiture constituted punishment.
    I.
    The Fifth Amendment's Double Jeopardy Clause reads: "nor shall any person be subjec
    the same offence to be twice put in jeopardy of life or limb."    U.S. Const., Amdt.
    Supreme Court has explained that "the Double Jeopardy Clause protects against three
    distinct abuses: a second prosecution for the same offense after acquittal; a secon
    prosecution for the same offense after conviction; and multiple punishments for the
    offense."   United States v. Halper, 
    490 U.S. 435
    , 440 (1989). The instant case invo
    the third of these protections, a protection which "has deep roots in our history a
    jurisprudence."   
    Id.
    18
    In Witte v. United States,      U.S.      , 
    115 S.Ct. 2199
     (1995), the Supreme Court r
    held that although a petitioner had not yet been twice convicted, his "multiple
    punishment" claim was ripe for appellate review before trial because "the Double Je
    Clause protects against more than the actual imposition of two punishments for the
    offense; by its terms, it protects a criminal defendant from being twice put in jeo
    for such punishment."   
    Id. at 2204-2205
    .     In the instant case, if defendant was pun
    by the forfeiture, the prospect of a criminal trial and further punishment places h
    jeopardy of prohibited multiple punishments.     Thus, it is appropriate and required
    adjudicate his claim prior to trial and on appeal, before he is subjected to the ri
    second punishment for the same offense.
    II.
    I turn to the merits of defendant's double jeopardy claim.     The question presented
    whether forfeiture pursuant to 
    21 U.S.C.A. §881
    (a)(6) (West 1981) constitutes punis
    for purposes of the Double Jeopardy Clause.     Three recent Supreme Court decisions g
    our analysis.   See Department of Revenue v. Kurth Ranch,      U.S.     , 
    114 S.Ct. 193
    (1994); Austin v. United States,       U.S.     , 
    113 S.Ct. 2801
     (1993); United States
    Halper, 
    490 U.S. 435
     (1989).
    In United States v. Halper, the Supreme Court considered "whether and under what
    circumstances a civil penalty may constitute 'punishment' for the purposes of doubl
    jeopardy analysis."   
    490 U.S. at 436
    .    The Court fashioned the following test: "a c
    sanction that cannot fairly be said solely to serve a remedial purpose, but rather
    only be explained as also serving either retributive or deterrent purposes, is
    19
    punishment."    
    Id. at 448
    . Specifically, the Court held that the Double Jeopardy Cla
    prohibition against multiple punishments for the same offense was violated where a
    defendant who already had been punished in a criminal prosecution was subjected to
    additional civil sanction to the extent that the second sanction served the traditi
    goals of punishment--deterrence and retribution.    
    Id. at 449
    .
    The Supreme Court recently applied the Halper test in Department of Revenue v. Kurt
    Ranch, 
    supra.
       There, the Supreme Court considered whether a state tax imposed on t
    possession and storage of dangerous drugs constituted a second punishment for purpo
    the Double Jeopardy Clause.   The Court began its discussion by noting that although
    Amendment's text only mentions harms to "life or limb," it is well settled that the
    Amendment covers monetary penalties.    114 S.Ct. at 1941 n.1. Recognizing that Halpe
    decided that the legislature's description of a statute as civil is not determinati
    the Double Jeopardy issue, the Court focused instead on whether the tax had punitiv
    characteristics that subjected it to the constraints of the Double Jeopardy Clause.
    Ranch, 
    114 S.Ct. at 1945
    .   The Court found it indicative of penal intent that the t
    conditioned on the commission of a crime and was exacted only after the taxpayer ha
    arrested for the precise conduct that gave rise to the tax obligation.    
    Id.
     at 1947
    Court held that the drug tax was punitive in nature and therefore must be imposed i
    first proceeding or not at all.    
    Id. at 1948
    .
    In Austin v. United States, supra, the Supreme Court relied heavily on the rational
    Halper to determine whether civil forfeiture pursuant to 
    21 U.S.C.A. §§ 881
    (a)(4) a
    (West Supp. 1995) constitutes punishment for purposes of the Eighth Amendment's Exc
    Fines Clause.   Austin, 
    113 S.Ct. at 2806
    .   However, rather than focusing, as the Co
    20
    done in Halper, on the goals of the sanction in the individual case, the Austin Cou
    reasoned that in the forfeiture context it made more sense to focus on the forfeitu
    statute as a whole because "[t]he value of the conveyances and real property forfei
    under §§881(a)(4) and (a)(7), . . . vary so dramatically that any relationship betw
    Government's actual costs and the amount of the sanction is merely coincidental."
    
    113 S.Ct. at
    2812 n.14.     See also Kurth Ranch, 
    114 S.Ct. at 1948
     (focusing on goals
    statute as a whole).     The Court concluded that forfeitures under §§ 881(a)(4) and (
    are properly considered punishment because: nothing in the sections contradicts the
    historical understanding of forfeiture as imposing punishment; the sections focus o
    owner's culpability by providing for the "innocent owner" defense and by tying forf
    directly to the commission of drug offenses; and Congress understood the sections a
    serving the goals of deterrence and punishment. Austin, 
    113 S.Ct. at 2810-11
    .
    Thus, we know from Halper and Kurth Ranch that a civil sanction can constitute puni
    for double jeopardy purposes and that the proper focus is whether a civil sanction
    punitive in nature. Moreover, we know from Austin that civil forfeiture pursuant to
    U.S.C.A. §§ 881(a)(4) and (a)((7) is punishment for purposes of the Excessive Fines
    Clause.
    The Supreme Court's holding in Austin that forfeiture pursuant to §881(a)(4) and (a
    constitutes punishment is controlling for purposes of § 881(a)(6) (dealing with mon
    negotiable instruments, and securities), the section at issue in this case.0    The A
    0
    The following items are subject to forfeiture under §881(a)(6):
    All monies, negotiable instruments, securities, or other things of value
    furnished or intended to be furnished by any person in exchange for a controll
    substance in violation of this subchapter, all proceeds traceable to such an
    21
    Court's historical analysis of forfeiture as punishment and its reliance on the
    legislative history of § 881 are equally applicable in the instant case.    Moreover,
    the sections of the forfeiture statute at issue in Austin, §881(a)(6) also includes
    innocent owner defense, which focuses on the culpability of the owner in a way that
    it look more like punishment.   See Austin, 
    113 S.Ct. at 2810-11
    .   Section 881(a)(6)
    conditioning of forfeiture on a violation of the Controlled Substances Act is also
    indicative of Congress' punitive intent.   See 
    id. at 2811
    .
    Further, the legislative history of § 881(a)(6) evidences Congress's intent to puni
    to deter.   Senator Culver, a sponsor of the legislation, said it would "provide the
    States with strong new weapons to . . . strike at the profits of illegal drug
    trafficking."   124 Cong. Rec. S17644 (Oct. 7, 1978).   Senator Nunn, also a sponsor
    legislation, explained that "[t]he criminal justice system can only be effective if
    is a meaningful deterrent.   It is important that the offender be aware of the risk
    running."   124 Cong. Rec. S11965 (July 27, 1978).   "We cannot forget that profit,
    astronomical profit, is the base motivation of drug traffickers."    Id.   By "strikin
    against the profits from illicit drug trafficking" the enactment of § 661(a)(6) wou
    enhance "the punitive and deterrent purposes of the Controlled Substances Act," whi
    would then "have greater impact on drug trafficking."    Id.
    exchange, and all monies, negotiable instruments, and securities used or
    intended to be used to facilitate any violation of this subchapter, except tha
    no property shall be forfeited under this paragraph, to the extent of the
    interest of an owner, by reason of any act or omission established by that own
    to have been committed or omitted without the knowledge or consent of that
    owner.
    
    21 U.S.C.A. § 881
    (a)(6) (West 1981).
    22
    The specific holding in Austin is that civil forfeiture constitutes punishment for
    purposes of the Excessive Fines Clause.    In contrast, this case involves a claim un
    Double Jeopardy Clause, yet I believe that Austin is controlling for double jeopard
    claims as well.    Significantly, in Austin the Supreme Court relied on Halper, which
    involved the Double Jeopardy Clause, to decide whether a civil sanction constituted
    punishment for purposes of the Excessive Fines Clause.      See 1 David B. Smith, Prose
    and Defense of Forfeiture Cases, ¶ 12.10[2], at 12-136 (1994) ("The Supreme Court's
    decision in Austin v. United States, makes it clear that Halper's double jeopardy
    protections do apply to the vast majority of civil forfeiture cases.").
    Recently, the Ninth Circuit similarly relied on Austin and Halper in holding that c
    forfeiture pursuant to 
    21 U.S.C.A. § 881
    (a)(6) constitutes punishment which trigger
    protections of the Double Jeopardy Clause.    United States v. $405,089.23 United Sta
    Currency, 
    33 F.3d 1210
     (9th Cir. 1994), opinion amended on denial of rehearing, 56
    (9th Cir. 1995).    Cf. United States v. Ursery,     F.3d      , No. 94-1127, 
    1995 WL 4
    (6th Cir. July 13, 1995) (holding that civil forfeiture pursuant to §881(a)(7) foll
    criminal conviction for the same offense constituted double jeopardy).     The Ninth C
    reasoned that:
    the only fair reading of the Court's decision in Austin is that it resolves th
    'punishment' issue with respect to forfeiture cases for purposes of the Double
    Jeopardy Clause as well as the Excessive Fines Clause. In short, if a
    forfeiture constitutes punishment under the Halper criteria, it constitutes
    'punishment' for purposes of both clauses.
    
    33 F.3d at 1219
    .    Thus, the court held that the government violated the Double Jeop
    Clause by obtaining criminal convictions against the defendant and then continuing
    23
    pursue the forfeiture action.   The court concluded by discussing the practical effe
    Austin on the government's prosecution of cases:
    Because in the case of statutes like those before us a criminal prosecution an
    a forfeiture action based on the same offense must now be brought in the same
    proceeding--that is, the same indictment--the government will often be forced
    choose whether to include a criminal forfeiture count in the indictment (and
    thus forego the favorable burdens it would face in the civil forfeiture
    proceeding) or to pursue only the civil forfeiture action (and thus forego the
    opportunity to prosecute the claimants criminally). If, in such cases, the
    government wishes both to obtain forfeiture and to impose other forms of
    criminal punishment, it 'will have to rely to a much greater extent on crimina
    forfeiture.' It is entirely reasonable to put the government to this choice.
    After Austin, the law requires it.
    
    33 F.3d at 1222
     (citation omitted).   I find the Ninth Circuit's reasoning persuasiv
    The government counters that under Austin only civil forfeitures that are found to
    excessive are to be considered punishment. However, the government misstates the ho
    in Austin.   Austin holds that all forfeitures under §§ 881(a)(4) and (a)(7) are mea
    part to punish and therefore can run afoul of the Excessive Fines Clause.    Austin,
    S.Ct. at 2812.   The Austin court left the issue of whether the forfeiture was
    constitutionally excessive to the district court in the first instance.     Id.
    The government also contends that application of Halper's "rational-relation" test-
    whether the amount of the sanction appears to be rationally related to the damages
    by the wrongful conduct of the defendant--results in the conclusion that the instan
    forfeiture of defendant's property does not constitute punishment.   However, in Aus
    the Supreme Court found that the "rational-relation" test was inapplicable in the
    forfeiture setting, and, instead, looked to the purpose behind the forfeiture statu
    itself, concluding that forfeiture serves in part to punish.   
    113 S.Ct. at
    2812 n.1
    agree that in the forfeiture context it does not make sense to compare the amount s
    24
    with the government's damages and actual costs; the value of the property seized is
    fortuitous, and thus "any relationship between the Government's actual costs and th
    amount of the sanction is merely coincidental."        Austin, 
    113 S.Ct. at 2811-12
    , 2812
    Moreover, the government has failed to demonstrate on the record how the forfeited
    property relates to its cost of investigation and prosecution of defendant's case.
    Finally, the government argues that to the extent that the forfeiture in the instan
    can be considered punishment, it is punishment imposed against the property itself
    against the owner of the property.     However, the Supreme Court in Austin stressed t
    has consistently recognized that in rem forfeiture serves, at least in part, to pun
    owner.    
    113 S.Ct. at 2810
    . Moreover, the Court made clear that forfeiture of proper
    as cars and real estate under the current forfeiture statute is dependent not on th
    criminal nature of the property, but on the illegal use their owners make of them.
    Austin, 
    113 S.Ct. at 2810-11
    .    The same reasoning applies to monies forfeited under
    §881(a)(6).    Therefore, it is the owners who are punished by the forfeiture of such
    property.    Id. at 2811.
    The Supreme Court in Halper addressed the question of what constitutes punishment f
    purposes of the Double Jeopardy Clause.      
    490 U.S. at 436
    .   The Halper Court announc
    the proper inquiry is whether the sanction serves the goals of punishment, i.e.
    retribution or deterrence.     
    Id. at 448
    .   In Austin, the Court held that Congress in
    for the forfeiture of property pursuant to §§        881(a)(4) and (a)(7) to deter and to
    punish.     See Austin, 
    113 S.Ct. at 2811
    .   Similarly, for reasons previously discusse
    881(a)(6) was intended to deter and to punish. Therefore, I conclude that forfeitur
    pursuant to § 881(a)(6) constitutes punishment for purposes of the Double Jeopardy
    25
    III.
    Having decided that forfeiture pursuant to 
    21 U.S.C.A. § 881
    (a)(6) constitutes puni
    for purposes of the Double Jeopardy Clause, I turn to the question of whether the s
    of the proceedings makes a constitutional difference.     In all of the Supreme Court
    previously discussed, the criminal sanction preceded the civil sanction and thus it
    second, civil sanction that has been barred under the Double Jeopardy Clause. By co
    in the instant case defendant asks us to apply the Double Jeopardy Clause to bar hi
    criminal prosecution.
    The Court noted in Kurth Ranch that the statute at issue did not raise the question
    whether a civil proceeding which is designed to inflict punishment may bar a subseq
    criminal proceeding.    114 S.Ct. at 1947 n.21.    In his dissent, Justice SCALIA warne
    although the majority confronted the relatively easy task of disallowing a civil pe
    after a criminal sanction already had been imposed, cases in which criminal penalti
    at stake will demand much more of courts.    Id. at 1958-59 (SCALIA, J. dissenting).
    Justice SCALIA opined that the order of punishment cannot possibly make a constitut
    difference.   Id. at 1958. I agree.
    There is no reason why the sequence of the proceedings should make a difference in
    constitutional analysis.   In other words, the holdings in Halper and Austin apply e
    to cases in which the civil sanction precedes the criminal sanction. "[T]he labels
    'criminal' and 'civil' are not of paramount importance."      Halper, 
    490 U.S. at 447
    .
    Instead, the critical inquiry remains whether the proceeding constitutes punishment
    26
    double jeopardy purposes and whether the defendant is receiving or is at risk of re
    multiple punishments for the same offense.   Several other circuits also have held t
    order of the proceedings, civil or criminal, does not affect the double jeopardy
    determination.   See United States v. Furlett, 
    974 F.2d 839
    , 843 n.2 (7th Cir. 1992)
    United States v. Sanchez-Escareno, 
    950 F.2d 193
    , 200 (5th Cir. 1991), cert. denied,
    U.S.    , 
    113 S.Ct. 123
     (1992); United States v. Mayers, 
    897 F.2d 1126
    , 1127 (11th
    cert. denied, 
    498 U.S. 865
     (1990); cf. United States v. Ursery,     F.3d    , No. 9
    
    1995 WL 411189
     (6th Cir. July 13, 1995) (finding double jeopardy where civil forfei
    preceded criminal prosecution).
    IV.
    I next consider whether it makes a difference in the double jeopardy analysis that
    defendant in the instant case did not participate in the forfeiture proceedings.     T
    district court's ruling is based on the stated rationale that "jeopardy ha[d] not a
    pursuant to the administrative forfeiture proceeding," presumably because defendant
    not contest the forfeiture.   United States v. Baird, No. 94-0215, Order, at n.1 (E.
    March 14, 1995). Similarly, the majority concludes that administrative forfeiture c
    never constitute punishment for purposes of the Double Jeopardy Clause because: (1)
    property is ownerless, i.e. no one has made a claim and/or filed a cost bond, and t
    taking of ownerless property punishes no one; and (2) administrative forfeiture doe
    place in jeopardy the person whose property is so forfeited, because it does not in
    judicial proceeding.
    27
    I believe that, if a defendant can prove that he was the owner of the property seiz
    participation in the forfeiture proceedings is not and should not be a precondition
    claim of double jeopardy.    A defendant may choose not to participate because the
    allegations are true, or for fear that a claim of ownership could be utilized again
    in the criminal proceeding.   For instance, the government alleged in this case that
    defendant owned the seized property and that the property was used or acquired as a
    of a drug-related offense.    If the allegations are true, what purpose would be serv
    defendant's participation in the forfeiture proceeding?
    Moreover, a claim of ownership in the forfeiture proceeding conceivably could be us
    against defendant in the criminal proceeding. Thus, requiring defendant to particip
    the forfeiture proceeding as a precondition to a double jeopardy claim would force
    defendant to choose between waiving his privilege against self-incrimination or wai
    his right to assert a double jeopardy violation.    The Supreme Court stressed in Sim
    United States, 
    390 U.S. 377
     (1968), that one constitutional right need not be surre
    in order to assert another.    
    Id. at 394
    . In Simmons, the Court found that an
    unconstitutional dilemma was created when defendant was required to surrender his F
    Amendment privilege against self-incrimination in order to establish his standing t
    assert an arguably valid Fourth Amendment claim.    
    Id.
       The Court resolved the dilem
    holding that: "when a defendant testifies in support of a motion to suppress eviden
    Fourth Amendment grounds, his testimony may not thereafter be admitted against him
    trial."   
    Id.
     Similarly, in the instant case, we refuse to subject defendant to such
    unconstitutional dilemma by requiring him to intervene in the forfeiture proceeding
    order to preserve his rights under the Double Jeopardy Clause.     The issue should b
    28
    whether defendant was the owner, not whether he filed a proper and timely claim of
    ownership in the forfeiture proceeding.    He is punished if his property is forfeite
    irrespective of whether or not he participated.     Hence, there should be no distinct
    between administrative and civil forfeiture; in either instance, a defendant must
    establish ownership and punishment before he can claim double jeopardy.     See also S
    supra, ¶ 12.10, at 12-141 n.33.1 ("[A] rule which would require property owners to
    claim and go through the motions of contesting a civil forfeiture merely to preserv
    double jeopardy issue has little to recommend it.     Tens of thousands of uncontested
    forfeitures would soon find their way into court.").
    The majority relies on Serfass v. United States, 
    420 U.S. 377
     (1975), in holding th
    Double Jeopardy Clause requires that defendant participate in two judicial proceedi
    Maj. op. at     [Typescript at 16 n.11].   However, Serfass, in contrast to the instan
    did not involve a "multiple punishments" claim and does not stand for the propositi
    multiple judicial proceedings are a precondition to all double jeopardy claims.     In
    case, defendant claims that he was punished by the forfeiture of his monies and tha
    on the instant indictment would subject him to multiple punishments for the same of
    The issue is thus whether defendant is at risk of being twice punished for the same
    offense, not whether defendant is at risk of being twice tried.
    Lastly, in United States v. Torres, 
    28 F.3d 1463
     (7th Cir. 1994), the Seventh Cir
    held that the administrative forfeiture of monies did not bar defendant's sentence
    imprisonment.   I am unpersuaded by the Torres decision to the extent that it holds
    unless a defendant participates in the forfeiture proceeding, he cannot claim doubl
    jeopardy.   Additionally, this case is factually distinguishable from Torres.    Defen
    29
    Torres and Olivares were arrested and their cash seized when they attempted to buy
    from "sellers" who turned out to be federal agents.      Torres, 
    28 F.3d at 1464
    .   The
    were administratively forfeited, and subsequently defendant Torres was convicted in
    separate criminal proceeding.   
    Id.
        On appeal, Torres argued that his criminal sent
    was barred by the Double Jeopardy Clause.     
    Id.
       In rejecting Torres's double jeopar
    claim, the court stressed that it was not clear who owned the forfeited funds and
    speculated that "perhaps he [Torres] was just a courier, making the buy on behalf o
    undisclosed principal." 
    Id. at 1466
    .    In contrast, the ownership of the funds in th
    instant case is not honestly contested.
    V.
    Assuming that defendant can establish that he was the owner of the forfeited proper
    nature of the property forfeited should affect one's ability to claim double jeopar
    For illustrative purposes, I will divide property subject to forfeiture under §881(
    two categories.0
    The first category includes property which is dangerous and/or illegal per se and t
    subject to destruction or removal from society. The forfeiture of such property can
    constitute punishment for purposes of the Double Jeopardy Clause because its forfei
    may be characterized as "remedial."    This category includes:
    0
    Moreover, we need not even consider whether confiscating property that a defendant
    not have title to, i.e. stolen property, is punishment for double jeopardy purposes
    recognize that the government can immediately confiscate such property and is not r
    to institute forfeiture proceedings.
    30
    all controlled substances which have been manufactured, distributed, dispensed
    acquired, § (a)(1);
    all raw materials, products, and equipment which are used in manufacturing any con
    substance, § (a)(2);
    all property which is used as a container, § (a)(3);
    all books, records, and research, including formulas, microfilm, tapes, and da
    which are used in violation of this subchapter, § (a)(5);
    all controlled substances which have been possessed in violation of this
    subchapter, § (a)(8);
    all listed chemicals, all drug manufacturing equipment, all tableting machines
    all encapsulating machines, and all gelatin capsules, § (a)(9);
    any drug paraphernalia, § (a)(10);
    any firearm, § (a)(11).
    
    21 U.S.C.A. § 881
    (a) (West 1983 & Supp. 1995).
    The items included in the first category are either illegal per se and/or dangerous
    society in general or to law enforcement agents in particular.   The Austin Court co
    that "the forfeiture of contraband itself may be characterized as remedial because
    removes dangerous or illegal items from society."   
    113 S.Ct. at
    2811 (citing United
    v. One Assortment of 89 Firearms, 
    465 U.S. 354
     (1984), which involved forfeiture of
    firearms).   Indeed, Congress recognized that such property is dangerous by providin
    its summary forfeiture and destruction.   Specifically, section 881(f)(1) (West Supp
    provides that all controlled substances, all raw materials, and any equipment or co
    subject to forfeiture, which cannot be separated safely from such raw material or p
    shall be deemed contraband and summarily forfeited to the United States. Section 88
    (West Supp. 1995) allows the government to destroy such property.   See also H.R. Re
    31
    101-681(I), 101st Cong., 2d Sess. (1990) reprinted in 1990 U.S.C.C.A.N. 6472, 6506
    (providing for summary forfeiture and destruction of dangerous substances and the
    equipment or containers from which these substances cannot be safely separated "bec
    the dangers they create for law enforcement agents").     Similarly, Congress provided
    the selling and interstate transport of drug paraphernalia is illegal, § 863(a) (We
    Supp. 1995), and that drug paraphernalia is subject to seizure, forfeiture, and
    destruction, § 863(c) (West Supp. 1995).
    The second category consists of property forfeited pursuant to     §§881(a)(4), (6), (
    such as boats, planes, cars, real property, and monies, which courts have distingui
    "derivative contraband."   Derivative contraband has been defined as articles which
    inherently illegal, but are used in an unlawful manner.    See United States v. Farre
    F.2d 1341, 1344 (D.C. Cir. 1979) (monies used in drug transaction are derivative
    contraband).   The forfeiture of such property may serve as a basis for a double jeo
    claim because, as previously discussed, the forfeiture of property pursuant to §§
    881(a)(4), (6), and (7) is punitive in nature.
    VI.
    Finally, I pose the question whether the source of the property seized should affec
    determination of double jeopardy.   Two scenarios illustrate my concerns:   In the fi
    scenario, a person acquires a house or car by honest means.    If that property is fo
    because it is utilized in connection with criminal activity, the owner is clearly
    punished.   Under such circumstances, a prior or subsequent criminal proceeding base
    32
    the same charges, which justified the forfeiture, would implicate double jeopardy.
    concern is with the second scenario, in which a defendant acquires property by dish
    means.   For instance, monies passed to a person in a drug sale are immediately seiz
    ultimately forfeited.   I have difficulty in concluding that such forfeiture, i.e. t
    seizure of monies derived from an illegal transaction, bars criminal prosecution fo
    drug sale.    I acknowledge that the monies seized technically are the property of th
    dealer, and, thus, their forfeiture constitutes punishment in the ordinary sense of
    word; but I ponder whether it does or should constitute punishment for double jeopa
    purposes.    The issue is further complicated if the forfeiture involves property acq
    from the expenditure of monies illegally obtained--the indirect rather than the dir
    acquisitions of illegal activity.
    Since the majority does not find double jeopardy because of the nature of the forfe
    proceeding, this distinction is not addressed. However, I find it worthy of serious
    consideration.   Moreover, I recognize that if my distinction were to be adopted, a
    secondary issue would have to be resolved concerning the applicable burden of proof
    where to place it.
    VII.
    I would vacate the judgment of the district court and remand for further proceeding
    consistent with this opinion.
    33