United States v. Frank L. Baird

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 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-meth-amphetamine (“Ecstaey”). The search of Baird’s residence turned up an elaborate clandestine Eestaey-manufacturing operation, complete with precursor chemicals, extensive laboratory apparatus, coded formulas for the manufacture of the drug, and stock piles of already manufactured Ecstaey. 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.¹ Prior to the returning of this 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. § 3231.² We have jurisdiction over Baird’s appeal under 28 U.S.C. § 1291³ and the collateral order doctrine announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). See Witte v. United States, — U.S. —, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995) (holding that a multiple punishments double jeopardy claim is ripe for appellate review even where the claimant has yet to have been convicted a second time).⁴ 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 Amendment⁵ 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, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); Schiro v. Farley, — U.S. —, —, 114 S.Ct. 783, 789, 127 L.Ed.2d 47 (1994). “These protections stem from the underlying premise that a defendant should not be twice tried or punished for the same offense.” Schiro, — U.S. at —, 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 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, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989).

As early as 1641, the Colony of Massachusetts in its “Body of Liberties” stated: “No man shall be twise sentenced by Civil 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 eases of impeachment, to more than one punishment or one trial for the same of-fence.” 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, 85 U.S. 163, 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, — U.S. —, —, 114 5.Ct. 1937, 1957, 128 L.Ed.2d 767 (1994) (Scalia, J., dissenting). In the first of these, United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (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, 109 S.Ct. at 1901-02. In the second, Austin v. United States, — U.S. —, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), the Court relied upon Halper to conclude that civil forfeitures undertaken pursuant to 21 U.S.C. §§ 881(a)(4) and (a)(7)⁶ constitute “punishment” for purposes of Eighth Amendment Excessive Fines Clause ⁷ analysis. Austin, — U.S. at —, 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, 56 F.3d 41 (9th Cir.1995); see also David Smith Prosecution and Defense of Forfeiture Cases ¶ 12.10[2], at 12-131 (“The Supreme Court’s decision in Austin v. United States, makes it clear that Halper¹ 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)⁸ 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 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).⁹ 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 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.

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 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, 95 S.Ct. 1055, 1063, 43 L.Ed.2d 265 (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, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (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, 78 S.Ct. at 223. 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, 95 S.Ct. at 1062. 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 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, 95 S.Ct. at 1062 (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.¹⁰

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, 95 S.Ct. at 1063).

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, 109 S.Ct. at 1903 n. 10. As noted above, Halper extended the no-double-punishments rule to civil penalties. Halper also “affirm[ed] that [the no multiple punishments rule] demand[s] more than mere fidelity to legislative intent_” Kurth Ranch, — U.S. at —, 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 equivalence] of a [prior] criminal prosecution that placed the [claimant] in jeopardy ... ‘for the same offence.’ ” Kurth Ranch, — U.S. at-, 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.¹¹ Because of the very manner in which the seized property was forfeited, this he was unable to do.

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.

1 . 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 prosecuted in a Court of the United States, that is, possession of Ecstacy with the intent to distribute it, as charged in Count 4.

2 . 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.

3 . 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 . 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.

5 . The Double Jeopardy Clause provides: “[Njor shall any person be subject for the same offence to be twice put in jeopardy of life or limb. U.S. Const. Arndt. 5.

6 . 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).

7 . 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.

8 . 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 sub-chapter, 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 subchap-ter. ...

9 . 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-

10 . In Halper and Austin, and, for that matter, in Montana Dept. of Rev. v. Kurth Ranch, - U.S. -, 114 S.Ct. 1937, 128 L.Ed.2d 767 (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.

11 . 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, 95 S.Ct. 1055 (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, 21 L.Ed. 872 (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.