for the same offense. Defendant will obviously be punished if he is sentenced to a term in prison for the heroin offense of which he was convicted. Therefore, if the earlier civil forfeiture of defendant's property constituted "punishment," then subsequently sentencing him to prison would violate the Double Jeopardy Clause. Because I hold, however, that the civil forfeiture was not punishment, sentencing Ukandu would constitute a first, not a second, punishment, and the Double Jeopardy Clause is not implicated.
The government forfeited defendant's money pursuant to 21 U.S.C. § 881, a civil forfeiture statute, as the proceeds of drug trafficking. The question posed by Ukandu's motion is whether this civil sanction was in fact a punishment. I conclude it was not.
Ukandu argues that Austin v. United States, 125 L. Ed. 2d 488, 113 S. Ct. 2801 (1993), compels the "inescapable" conclusion that forfeiture of his property was punishment under the Double Jeopardy Clause and sentencing is therefore barred. I find that Austin does not compel the result which defendant argues. First, Austin addressed two specific subsections of § 881 and considered those provisions within the context of the Excessive Fines Clause, not the Double Jeopardy Clause. Defendant's argument is based on double jeopardy and not on the argument that the forfeiture was excessive.
Second, the properties forfeited in Austin were conveyances and real estate used to facilitate a drug-related crime. 113 S. Ct. at 2803, 2811 (defendant met customer at defendant's body shop, agreed to sell him cocaine, and went to defendant's mobile home to pick up the drugs). In concluding that subsections (a)(4) and (a)(7) did not serve a solely remedial purpose, the Austin court noted that the value of real estate and conveyances could vary dramatically, making a relationship between the government's costs and the forfeiture merely coincidental. 113 S. Ct. at 2812 n.14. In contrast, Ukandu's currency was forfeited as the proceeds of drug trafficking pursuant to § 881(a)(6).
Unlike real estate or conveyances, currency is simple to value and the value does not vary. More importantly, forfeiture of "proceeds" property rather than "facilitating" property is not punishment because the owner has lost nothing to which he was ever lawfully entitled. United States v. Tilley, 18 F.3d 295, 297, 300 (5th Cir. 1994). If a person has no legitimate right to engage in the activity which generated the ill-gotten gains, then requiring him or her to forfeit the unlawfully obtained gains cannot be understood as punishment. United States v. Alexander, 32 F.3d 1231, 1236 (8th Cir. 1994); United States v. Leaniz, 1995 WL 43127 at * 5 (S.D. Ohio Mar. 31, 1995).
Because Austin did not address the constitutional protections of the Double Jeopardy Clause, and because Austin involved "facilitating" property rather than "proceeds" property, I find that Austin's determination that civil forfeitures pursuant to 21 U.S.C. §§ 881(a)(4) and (a)(7) are punishments limited by the Eighth Amendment's protection against excessive fines, does not answer the question posed by this case: did forfeiture of the proceeds of drug trafficking punish Ukandu? The answer is "no," because forfeiture of narcotics proceeds is not punishment, as Ukandu had no lawful right to retain the fruit of his unlawful activity.
Because Ukandu was not punished by the civil forfeiture of the currency, sentencing him now will not constitute a second punishment. Therefore, imposing sentence will not implicate the protections of the Double Jeopardy Clause, and defendant's motion to vacate conviction and bar sentencing must be denied. An appropriate order follows.
AND NOW, this day of August, 1995, defendant's motion to vacate conviction and bar sentencing (document # 497) is hereby DENIED. Defendant shall appear for sentencing in courtroom 6A on Monday, September 11, 1995, at 10:00 a.m.
BY THE COURT: