United States v. Lamont D. Kress ( 1996 )

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No. 95-4038
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Lamont D. Kress, *
*
Appellant. *
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Submitted: April 9, 1996
Filed: July 10, 1996
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Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN and HANSEN, Circuit
Judges.
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WOLLMAN, Circuit Judge.
This is an interlocutory appeal from the district court's1 order
denying Lamont Kress's motion to dismiss an indictment filed against him
on the basis that it violated the Double Jeopardy Clause of the Fifth
Amendment. We affirm.
I.
On October 17, 1990, the government executed a search on Kress's
residence and seized seven firearms. This is Kress's third appeal to this
court regarding the superseding indictment filed against him on November
14, 1990. In that indictment, Kress was charged with thirty-three counts
involving conspiracy to distribute
1
The Honorable William G. Cambridge, United States District
Judge for the District of Nebraska, adopting the report and
recommendation of the Honorable Kathleen A. Jaudzemis, United
States Magistrate Judge for the District of Nebraska.
and possession with intent to distribute methamphetamine, in addition to
various other substantive crimes committed in furtherance of the
conspiracy.
On January 10, 1991, the government advised Kress that it had
commenced administrative civil forfeiture proceedings against the seized
firearms. The letter notified Kress that the final claim date was February
28, 1991, at which time automatic forfeiture would occur without the timely
filing of a claim and cost bond. Instead of filing the claim and cost
bond, Kress filed a petition for remission or mitigation, which the
government ultimately denied.2
Kress and several codefendants went to trial in the spring of 1992.
After the jury found Kress guilty of twenty-seven counts, the district
court sentenced him to a term of imprisonment of 188 months on each count,
to be served concurrently. Kress timely appealed his conviction, raising
two grounds for reversal: (1) the district court erred in denying his
motion to suppress evidence based on alleged violations of the "knock and
announce" statute, 18 U.S.C. § 3109; and (2) the district court erred in
enhancing his sentence for possession of a firearm pursuant to U.S.S.G. §
2D1.1(b)(1). After concluding that Kress's motion to suppress had been
improperly denied, we reversed and remanded the case for further
proceedings. United States v. Lucht, 18 F.3d 541, 556 (8th Cir.), cert.
denied, 115 S. Ct. 363 (1994).
2
The government contends that Kress was not subjected to
jeopardy by the forfeiture proceeding because of his failure to
challenge the forfeiture by filing an appropriate claim and cost
bond. Kress claims that, despite his failure to file a claim and
cost bond, he adequately contested the forfeiture by filing the
petition for mitigation. Because we find that his double jeopardy
claim is foreclosed, we will not reach the merits of this issue.
-2-
In June 1994, Kress filed a motion to dismiss Count 29 of the
superseding indictment on double jeopardy grounds.3 The district court
denied the motion and Kress filed an interlocutory appeal. After
concluding that Kress had waived his double jeopardy claim by failing to
bring it in his original appeal, we affirmed. United States v. Kress, 58
F.3d 370, 374 (8th Cir. 1995).
In August 1995, Kress again filed a motion to dismiss the superseding
indictment on double jeopardy grounds. This time Kress contended that the
administrative forfeiture of the seized firearms constituted punishment
within the meaning of the Double Jeopardy Clause, thus compelling dismissal
of the superseding indictment. In her report and recommendation, the
magistrate judge concluded that Kress had waived his double jeopardy claim,
relying on our opinion in Kress, 58 F.3d 370. She also found, in the
alternative, that Kress's motion should be denied on the merits. After
adopting the magistrate judge's report and recommendation, the district
court denied the motion to dismiss.
II.
Kress's double jeopardy claim may well have been waived. In any
event, this claim is foreclosed by the Supreme Court's recent opinion in
United States v. Ursery, No. 95-345, 1996 WL 340815 (U.S. June 24, 1996).
In Ursery, the Supreme Court reaffirmed the rule set out in United States
v. One Assortment of 89 Firearms, 465 U.S. 354 (1984), that civil
forfeitures generally "do not constitute ``punishment' for purposes of the
Double Jeopardy Clause." Ursery, at *2. In the present case, the
forfeiture was a civil sanction, remedial in nature. Thus, it did not
constitute
3
Specifically, Kress argued that the district court's method
in recalling the jury to correct an error in the verdict pertaining
to Count 29 constituted the reopening of the jury deliberations,
and thus retrial on that count would violate the Double Jeopardy
Clause.
-3-
punishment for double jeopardy purposes.
The district court's order is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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