APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. (D.C. Criminal No. 94-cr-00215).
Before: Cowen, Lewis and Sarokin, Circuit Judges.
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-methamphetamine ("Ecstacy"). The search of Baird's residence turned up an elaborate clandestine Ecstacy-manufacturing operation, complete with precursor chemicals, extensive laboratory apparatus, coded formulas for the manufacture of the drug, and stock piles of already manufactured Ecstacy. 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.*fn1 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.*fn2 We have jurisdiction over Baird's appeal under 28 U.S.C. § 1291*fn3 and the collateral order doctrine announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949). See Witte v. United States, ___ U.S. ___, 132 L. Ed. 2d 351, 115 S. Ct. 2199 (1995) (holding that a multiple punishments double jeopardy claim is ripe for appellate review even where the claimant has yet to have been a second time convicted).*fn4 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 Amendment*fn5 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, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969); Schiro v. Farley, 127 L. Ed. 2d 47, 114 S. Ct. 783, 789 (1994). "These protections stem from the underlying premise that a defendant should not be twice tried or punished for the same offense." Schiro, 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: 'The 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, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989).
As early as 1641, the Colony of Massachusetts in its "Body of Liberties" stated: "No man shall be twise sentenced by Civill 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 cases of impeachment, to more than one punishment or one trial for the same offence." 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, 128 L. Ed. 2d 767, 114 S. Ct. 1937, 1957 (1994) (Scalia, J., Dissenting). In the first of these, United States v. Halper, 490 U.S. 435, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (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. In the second, Austin v. United States, 125 L. Ed. 2d 488, 113 S. Ct. 2801 (1993), the Court relied upon Halper to conclude that civil forfeitures undertaken pursuant to 21 U.S.C. §§ 881(a)(4) and (a)(7)*fn6 constitute "punishment" for purposes of Eighth Amendment Excessive Fines Clause*fn7 analysis. Austin, 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, ___ F.3d ____, 1995 WL 321826 (9th Cir. 1995); see also David Smith Prosecution and Defense of Forfeiture Cases P 12.10, at 12-131 ("The Supreme Court's decision in Austin v. United States, makes it clear that Halper '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)*fn8 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).*fn9 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 P 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, "you 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, 43 L. Ed. 2d 265, 95 S. Ct. 1055 (1975). In essence, Baird asks us to find that he was placed in jeopardy by the non-judicial administrative forfeiture process ...