United States v. Lamond Sykes

No. 95-3661
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Lamond Sykes, also known *
as Q, *
*
Appellant. *
Submitted: December 12, 1995
Filed: January 9, 1996
Before FAGG, HEANEY, and WOLLMAN, Circuit Judges.
HEANEY, Circuit Judge.
Lamond Sykes appeals from the district court's denial of his
motion to dismiss an indictment. Sykes contends that the
indictment violates the Double Jeopardy Clause of the Fifth
Amendment because the government has already punished him by
seizing and forfeiting his property for the same offenses. We
affirm.
BACKGROUND
Over a several-month period prior to indictment, the
government seized the following assets from Sykes:
1. A 1994 Jeep Cherokee valued at $32,257 seized pursuant to
21 U.S.C. § 881(a)(6);
2. $30,000 in U.S. currency seized pursuant to 21 U.S.C. §
881(a)(6);
3. Fourteen pieces of industrial dry cleaning equipment
seized from Sykes business pursuant to 19 U.S.C. 981;
4. $19,222.96 in U.S. currency seized pursuant to 18 U.S.C.
§ 981; and
5. $49,031 in U.S. currency seized pursuant to 21 U.S.C. §
881(a)(6).
Among the five property items, Sykes contested only the forfeiture
of the Jeep and the $30,000. The government completed forfeiture
against the other three properties in proceedings that were
uncontested by Sykes.
Subsequently, the government indicted Sykes for offenses
arising from the same conduct that was the basis of the prior
seizures and forfeitures. The pending indictment charges him with
conspiracy to distribute heroin and cocaine, money laundering,
making a false statement to a federally insured financial
institution, and engaging in a continuing criminal enterprise. At
present, the government has stayed the forfeiture proceedings
against the Jeep pending the outcome of the criminal proceeding.
The government halted its civil action against the $30,000; the
same money is now the subject of a criminal forfeiture count in the
indictment.
DISCUSSION
The question presented by this appeal is whether the district
court erred in holding that the indictment did not violate the
constitutional prohibition against successive punishments for the
same offense. We review the district court's denial of the motion
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to dismiss de novo. United States v. Petty, 62 F.3d 265, 267 (8th
Cir. 1995).
The Fifth Amendment provides that "No person shall . . . be
subject for the same offence to be twice put in jeopardy of life or
limb." U.S. Const. amend. V. Although the text of the Amendment
mentions only harms to "life or limb," it is well settled that the
Double Jeopardy Clause applies to imprisonment and monetary
penalties. See, e.g., United States v. Halper, 490 U.S. 435
(1989); Ex parte Lange, 85 U.S. 163, 18 Wall. 163 (1873). The
Double Jeopardy Clause protects against a second prosecution for
the same offense after an acquittal, a second prosecution for the
same offense after a conviction, and multiple punishments for the
same offense. Schiro v. Farley, 114 S. Ct. 783, 789 (1994). Sykes
asserts that both the prior forfeitures and the pending forfeitures
constitute punishment within the meaning of the Double Jeopardy
Clause and, therefore, that he cannot be prosecuted for the same
offenses which formed the basis of those forfeitures. We disagree.
Before Sykes can invoke the Double Jeopardy Clause to bar this
prosecution, he must demonstrate that he has already been subjected
to punishment in a prior proceeding. Serfass v. United States, 420
U.S. 377, 393 (1975) ("[It is a] fundamental principle that an
accused must suffer jeopardy before he can suffer double
jeopardy.") With respect to the completed administrative
forfeitures, Sykes was not a party to the proceedings; he did not
contest the forfeitures. Under the holding of this court in United
States v. Pena, 67 F.3d 153, 155-56 (8th Cir. 1995), Sykes was not
placed in jeopardy by those civil proceedings. But see Gainer v.
United States, 1995 WL 675437 (D. Kan. Nov. 8, 1995) and United
States v. Brophil, 899 F. Supp. 1257, 1264 (D. Vt. 1995) (holding
that failure to appear at a civil forfeiture proceeding does not
preclude an individual from raising a double jeopardy claim in a
subsequent criminal prosecution). Nor has Sykes been subjected to
prior jeopardy by the pending forfeitures of the Jeep and $30,000.
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Although Sykes intervened in the proceedings and asserted his
ownership of the property, this circuit has held that the
government's stay of the forfeiture proceedings prevents the
attachment of jeopardy. United States v. Clemente, 1995 WL 704334,
*2 (8th Cir. Dec. 1, 1995) ("Jeopardy does not attach upon the
government's mere filing of an administrative claim.")
Sykes fails to demonstrate the prerequisite prior jeopardy.
Thus, the indictment does not violate the Double Jeopardy Clause
and we affirm the district court.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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