have been a party to a prior, separate proceeding. $ 405,089.23 U.S. Currency, 33 F.3d at 1218. That the would-be civil forfeiture proceeding and the subsequent trial would constitute separate proceedings, however, does not mean that Ogbuehi has been subject to double jeopardy. Rather, there must also be a determination that the civil forfeiture was punishment. Id. at 1216. Baird considered the double jeopardy question in terms of the proceedings and stated that "a double jeopardy claimant in the position of Baird, therefore, cannot prevail merely upon showing that he or she has been once punished for the same offense by the same sovereign. . . . The claimant must also show that the initial punishment was meted out during the course of a prior proceeding." No. 95-1202, slip op. at 12. The corollary is also true, that a claimant cannot prevail merely because he has been subject to two proceedings. He must also show that he was at risk of punishment in the former proceeding before punishment in the second proceeding is barred.
B. The Forfeitures Were Not Punitive
The government forfeited defendant's property pursuant to 18 U.S.C. § 981, a civil forfeiture statute, for promotion and concealment of narcotics proceeds. The question posed by Ogbuehi's motion is whether this civil sanction is in fact a punishment. I hold that it is not for two reasons.
First, forfeiture of the proceeds of unlawful activity is not punishment because the purported 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 legal 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 U.S. Dist. LEXIS 4039, 1995 WL 43127 at * 5 (S.D. Ohio Mar. 31, 1995). But see Baird, No. 95-1202, slip op. at 8 (court does not adopt a position on the matter, but understands how a court might conclude that civil forfeiture of drug proceeds under 21 U.S.C. § 881(a)(6) is punishment); $ 405,089.23 U.S. Currency, 33 F.3d at 1222 (civil forfeiture of drug proceeds under 21 U.S.C. § 881(a)(6) is punishment).
Second, under the analysis specified by the Supreme Court in United States v. Halper, the forfeitures were wholly remedial. As the Supreme Court noted in Halper, the labels "criminal" and "civil" are not particularly important in assessing whether a sanction is actually a punishment. 490 U.S. 435, 447, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989). Rather, the Court said, determining whether a civil sanction is actually punitive requires a "particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve." Id. at 448.
Punishment serves the dual goals of retribution and deterrence. Non-punitive penalties, however, have a remedial goal such as making the government whole. Id. at 449. Compensating society -- in addition to government -- is also a remedial goal served by a civil sanction. Tilley, 18 F.3d at 298. Therefore, a civil sanction that goes beyond a remedial purpose and can only be explained as also serving a retributive or deterrent purpose, is punishment. Halper, 490 U.S. at 448. The Halper Court announced the "rule of reason" a district court should use in determining the size of a civil sanction which the government may receive without crossing from remedy to punishment: where the civil penalty bears no rational relation to the goal of compensating the government for its loss, then the penalty is punitive.
Id. at 449. If the penalty merely reimburses the government or society for the costs arising from a defendant's criminal conduct, the penalty is remedial in character. Department of Revenue of Montana v. Kurth Ranch, 114 S. Ct. 1937, 1945, 128 L. Ed. 2d 767 (1994); Tilley, 18 F.3d at 298.
Ogbuehi argues that Austin v. United States compels the "inescapable" conclusion that forfeiture of his property was punishment under the Double Jeopardy Clause and sentencing is therefore barred. 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993). Austin concerned the issue of whether the Eighth Amendment's Excessive Fines Clause applied to property forfeited pursuant to 21 U.S.C. §§ 881(a)(4) and (a)(7). Id. at 2803. Citing its earlier decision in Halper, the Court noted that the Double Jeopardy Clause did not apply in civil forfeiture proceedings where the forfeiture could properly be characterized as remedial. Austin, 113 S. Ct. at 2804-05 n.4. The Court concluded that §§ 881 (a)(4) and (a)(7), which apply to forfeitures of conveyances and real estate, respectively, did not serve solely a remedial purpose, and so were punitive in nature and limited by the Eighth Amendment.
Id. at 2812.
I find, however, that Austin does not compel the result for which defendant argues. Austin concerned conveyances and real estate used to facilitate a drug-related crime, forfeited under 21 U.S.C. § 881. 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). Ogbuehi's property, on the other hand, was forfeited pursuant to 18 U.S.C. § 981, which addresses concealment of the proceeds of unlawful activity. Simply, Austin's determination that civil forfeitures pursuant to 21 U.S.C. §§ 881(a)(4) and (a)(7) are punishments does not answer the question posed here because I do not read Austin so broadly as to say that all civil forfeitures of any kind of property under any statute are punitive. Instead, it is the Halper analysis that guides my inquiry.
Under Halper, a civil sanction is punitive for purposes of double jeopardy if it does not serve solely a remedial purpose, but instead also serves a punitive or deterrent purpose. A court is instructed to consider whether the amount of the forfeited property bears a rational relation to the costs of government and society resulting from a defendant's unlawful activity. If so, the sanction is remedial and the Double Jeopardy Clause is inapplicable. If not, the sanction can fairly be said to serve the purpose of either deterrence or retribution, and thus is punitive.
The government asserts that the value of the property forfeited by Ogbuehi was about $ 37,500. Documents in the forfeiture files list the appraised value of the Volvo as $ 5,000; the Nissan, $ 10,000; the Oldsmobile, $ 500; and the business equipment, $ 22,000. Ogbuehi disputes this valuation, claiming that the property was worth $ 96,000.
In any event, even if I accept defendant's estimate of the value of the forfeited proceeds, I find that the amount forfeited is rationally related to the costs to government and society that resulted from defendant's unlawful activity.
A jury convicted Ogbuehi of one count of conspiring to distribute heroin, four counts of possessing heroin with the intent to distribute it, and one count of importing heroin. There was considerable testimony at trial about Ogbuehi's role in distributing heroin brought into the country by several couriers and shipped into the country in packages of dried fish. At a minimum, Ogbuehi was responsible for distributing 1.66 kilograms of heroin: 360 grams in one transaction (count 4), 400 grams in another transaction (count 9), and 900 grams in a third transaction (counts 10 and 11).
The costs to the government and society of this amount of drugs is considerable. Expert testimony at defendant's trial established that the wholesale value of one kilogram of heroin is $ 180,000 - $ 200,000. (Transcript, Nov. 1, 1993, p. 47). The street, or retail, value of one kilogram of heroin at the time of the conspiracy in question was $ 1.6 million. (Id. at 48-49). Forfeiture of $ 96,000 of Ogbuehi's property -- the concealed proceeds of his unlawful activity -- reimburses the government for the costs of detecting, interdicting, investigating, and prosecuting his criminal activity. Moreover, it serves to reimburse society for the costs of combatting the allure of the unlawful activity, lost productivity, and the drain on legitimate commerce that defendant's participation in the underground economy has wrought. I find that forfeiture of property worth $ 96,000 is rationally related to the goal of compensating the government and society for the losses suffered as a result of Ogbuehi's illegal acts. The forfeitures, therefore, were remedial, not punitive.
Because forfeiture of Ogbuehi's property was remedial, not punitive, the would-be civil forfeiture proceeding did not punish Ogbuehi. Therefore, sentencing Ogbuehi will constitute a first, not a second, imposition of punishment, and the Double Jeopardy Clause is not implicated. Defendant's motion to vacate his conviction and bar sentencing must therefore be denied.
An appropriate order follows.
AND NOW, this 23rd day of August, 1995, defendant's pro se motion to vacate conviction and bar sentencing (document # 463) is hereby DENIED. Defendant shall appear for sentencing in courtroom 6A on Monday, September 11, 1995, at 2:00 p.m.
BY THE COURT:
J. William Ditter, Jr., J.