United States v. Douglas Carpa , 95 F.3d 1158 ( 1996 )

95 F.3d 1158

78 A.F.T.R.2d 96-6416

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
Douglas CARPA, Defendant-Appellant.

No. 95-10258.

United States Court of Appeals, Ninth Circuit.

Argued Oct. 20, 1995.
Submission Deferred Oct. 24, 1995.
Submitted Aug. 8, 1996.
Decided Aug. 21, 1996.

1

Before: FERGUSON and HAWKINS, Circuit Judges, NIELSEN,* District Judge.

2

MEMORANDUM**

3

Defendant Douglas Carpa appeals the denial of his motion to dismiss his indictment. Carpa contends that his prosecution for conspiracy to impede the Internal Revenue Service in the collection of income taxes in violation of 18 U.S.C. § 371 violates the Double Jeopardy Clause because he was subjected to a prior administrative forfeiture and thus, the criminal prosecution constitutes multiple punishment for the same offense.

4

We have jurisdiction over this interlocutory appeal pursuant to 28 U.S.C. § 1291 and Abney v. United States, 431 U.S. 651 (1977). We AFFIRM.

DISCUSSION

5

A district court's denial of a motion to dismiss an indictment on double jeopardy grounds is reviewed de novo. United States v. Chick, 61 F.3d 682, 686 (9th Cir.1995), cert. denied, 116 S.Ct. 1416 (1996).

6

The Fifth Amendment's Double Jeopardy Clause protects against three distinct abuses: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. United States v. Halper, 490 U.S. 435, 440 (1989). Here, the issue is whether Carpa is exposed to multiple punishments for the same offense.

7

In United States v. Ursery, 116 S.Ct. 2135 (1996), the Supreme Court held that civil forfeitures do not constitute "punishment" for purposes of the Double Jeopardy Clause. Id. at 2138. In light of the Court's decision, we hold that the Double Jeopardy Clause does not bar the prosecution of Carpa for conspiracy because the civil forfeiture was not punishment; accordingly, the criminal prosecution is not multiple punishment for the same offense.

8

AFFIRMED.

*

The Honorable William Fremming Nielsen, Chief United States District Judge for the Eastern District of Washington, sitting by designation

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this Circuit except as provided by 9th Cir.R. 36-3