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UNITED STATES v. OGBUEHI

August 23, 1995

UNITED STATES OF AMERICA
v.
FRIDAY OGBUEHI



The opinion of the court was delivered by: J. WILLIAM DITTER, JR.

 Ditter, J.

 August 23, 1995

 The question in this case is whether the Double Jeopardy Clause precludes sentencing a person whose property has been civilly forfeited to the government for promotion and concealment of drug proceeds.

 Following a lengthy trial, a jury convicted Friday Ogbuehi of conspiring to distribute heroin, possessing heroin and aiding and abetting the possession of heroin with the intent to distribute it, and importing and aiding and abetting the importation of heroin. I denied defendant's post-trial motions and scheduled a date for sentencing. Defendant then filed a pro se motion to vacate his conviction and bar sentencing. Defendant argues that because some of his property has been forfeited to the government, he has already been punished for the heroin-related offenses and that sentencing him now for those offenses would violate the constitutional protection against double jeopardy. For the reasons stated below, I will deny defendant's motion and reschedule his postponed sentencing.

 I. FACTS

 The facts regarding the evidence against Ogbuehi, the trial, and his conviction, are detailed in an opinion dated March 13, 1995, and need not be repeated here. Ogbuehi's instant motion is based on the forfeiture by the United States Customs Service of some of his property: a 1987 Volvo, a 1979 Oldsmobile station wagon, and various electronic and computer equipment from the Trans-Atlantic Network, a video business owned by defendant. Another automobile, a 1990 Nissan Maxima, was not forfeited to the government but rather, was released to the Chrysler Corporation, which held a lien on the car. At my request the government submitted documents detailing the forfeitures.

 In May 1993, the Washington, D.C., district director of the United States Customs Service sent a seizure notice to defendant and his wife. In July 1993, the director notified defendant that the government had commenced proceedings for administrative forfeiture of the Nissan and that the defendant could contest forfeiture by posting a bond. Documents filed by the government show that the Customs Service instituted the forfeitures pursuant to 18 U.S.C. § 981 for promotion and concealment of narcotics proceeds. Ogbuehi posted no bond and did not contest the forfeiture, although he notes that his then-attorney, Peter Bowers, Esq., stated on a Customs Form JF that he sought judicial forfeiture proceedings. In September 1993, the Nissan was released to the Chrysler Corporation.

 Also in May 1993, the Customs Service sent notice to defendant of the seizure of the Volvo, the Oldsmobile, and the business equipment. *fn1" The notice explained defendant's options for contesting the forfeitures. In August 1993, the Customs Service began administrative forfeiture proceedings for the Oldsmobile and the equipment; proceedings began in November 1993 for the Volvo. In neither instance did defendant post bond or contest the forfeitures in Washington, D.C., although another Form JF signed by Ogbuehi's then-attorney indicates that he sought judicial forfeiture proceedings for the Volvo. *fn2" In February 1994, the two vehicles and the business equipment were declared forfeit and either put to official use or sold.

 II. THE GOVERNMENT'S ACTIONS DID NOT VIOLATE THE DOUBLE JEOPARDY CLAUSE

 The Double Jeopardy Clause of the Fifth Amendment prohibits multiple punishments for the same offense. *fn3" To assess whether the government's actions violate the Fifth Amendment by forfeiting defendant's property and then seeking to have sentence imposed following conviction, a court must consider two questions: (1) whether the civil forfeiture action and subsequent criminal prosecution constitute separate proceedings and (2) whether civil forfeiture under 18 U.S.C. § 981 constitutes punishment. United States v. $ 405,089.23 U.S. Currency, 33 F.3d 1210, 1216 (9th Cir. 1994). If the answer to both questions is yes, then the government's actions constitute successive attempts to impose punishment in violation of the Double Jeopardy Clause. Id. Because I hold, however, that the forfeitures were not punishment, sentencing Ogbuehi will constitute a first, not a second, imposition of punishment, and the Double Jeopardy Clause is not implicated.

 A. The Forfeitures and the Prosecution Were Separate Proceedings

 The first consideration in determining whether the government's actions have violated the prohibition against double jeopardy is whether the forfeitures and the criminal trial were separate proceedings. The government contends that defendant's property was administratively forfeited, meaning defendant did not contest the forfeitures and did not become a party to any proceedings. Therefore, the government argues, there was no former proceeding against Ogbuehi and he was not punished by the administrative forfeiture.

 The Court of Appeals for the Third Circuit addressed this issue recently, holding that an administrative forfeiture neither punished the defendant nor placed him in former jeopardy. United States v. Baird, 1995 U.S. App. LEXIS 21665, No. 95-1202, slip op. at 2 (3d Cir. Aug. 11, 1995). Therefore, the court said, Baird's pending prosecution would not subject him to double jeopardy. Id. The court reasoned that administrative forfeiture is, in reality, a non-proceeding, and any abstract sense of punishment is "wholly unattached to a specific person and thus cannot serve as the basis for a double jeopardy claim." Id. at 8, 9. Baird emphasized the distinction between administrative forfeiture, where, by definition, no judicial proceeding occurs, and civil forfeiture, where jeopardy attaches because a defendant contests the ...


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