February 28, 1996 96-R-0418

You asked for additional information on the cases cited in a January 13, 1996 Hartford Courant article that are scheduled for review by the U.S. Supreme Court. The Court is going to decide whether laws that allow for a person’s prosecution and the seizure of his assets violate the Double Jeopardy Clause.

On January 12, 1996 the Supreme Court agreed to hear three drug-related cases. In two of these cases, one from California and the other from Michigan, the Court will determine whether federal authorities who file civil and criminal actions against a person who commits a drug-related offense do so in violation of the Double Jeopardy Clause. The Court will decide in the third case whether a Nevada court was correct in preventing people who flee to avoid criminal charges from defending themselves against a related civil forfeiture action. The Supreme Court should rule on these cases during the current term, with a decision out by the summer.

The federal forfeiture law contains both criminal and civil forfeiture provisions for a singular offense. (21 USCA § 853(a) and (d); § 881(a)) In contrast, Connecticut’s law has only a civil forfeiture provision. The state law can be used to seize property derived or obtained from the proceeds of an illegal drug sale or exchange, or used or intended to be used to commit or facilitate an illegal drug sale (CGS § 54-36h).

In the past ten years, federal prosecutors have sought many property forfeitures as a way of fighting drugs in America. No matter how the Supreme Court decides the cases on review, the government will still be able to seek forfeiture as part of a criminal case. Authorities say the decisions facing review have prompted defendants to challenge cases involving civil forfeitures.

CASES ON REVIEW

The following cases involve the Double Jeopardy Clause of the Fifth Amendment. The Clause prevents a person from being tried twice for the same offense and prohibits multiple punishments for the same offense.

The Michigan State Police charged the defendant with growing marijuana on his property and confiscated twelve plastic bags with marijuana seeds, two loaded firearms, marijuana stems and stalks, and a growlight. The Urserys and the government settled on a $13,250.00 payment for a civil forfeiture action brought on September 30, 1992. Afterward, a federal grand jury returned a criminal indictment against Ursery for the manufacture of marijuana. During his trial, Ursery argued that his criminal prosecution and punishment after settlement of a civil forfeiture proceeding based on the same conduct violated the Double Jeopardy Clause of the Fifth Amendment. The court held that the consent judgment in the forfeiture proceeding was an "adjudication" for double jeopardy purposes, the forfeiture was "punishment" for double jeopardy purposes, both proceedings involved the "same offense," and the proceedings were not a single, coordinated proceeding.

To determine whether the government violated the Double Jeopardy Clause, the court looked at three issues: (1) whether the civil forfeiture constituted "punishment" for double jeopardy purposes; (2) whether the civil forfeiture and criminal conviction were punishment for the same offense; and (3) whether the civil forfeiture and criminal prosecution were separate proceedings. For every issue the court decided positively and concluded that his Double Jeopardy rights had been violated. Basically, the court found that a forfeiture judgment was entered against the defendant when the state accepted a $13,250.00 settlement. The court's decision limited Ursery to its facts (e.g., the court held that in this case, not every case, criminal prosecution plus forfeiture resulted in a violation of the Double Jeopardy Clause).

The dissent disagreed with the majority’s view that the civil forfeiture proceeding and the criminal conviction did not amount to a single, coordinated prosecution. The dissent thought the government was simply seeking the full range of available sanctions for a single proceeding. The dissent found support for its conclusion based on the timing of the civil and criminal proceedings and the potential for government abuse of those proceedings. Both proceedings took place in close time to each other, and the government was not acting to pursue a second punishment because of its dissatisfaction with the first outcome. According to the dissent, the consent judgment in the civil action was innocuous.

Does the Double Jeopardy Clause prohibit Ursery’s criminal prosecution for manufacturing marijuana because the government had previously obtained a consent judgment in a civil action seeking forfeiture of his property?

James Wren and Charles Arlt appeared to be involved with legitimate gold mining activities, but they were actually conducting a methamphetamine manufacturing operation. They were indicted on various counts of conspiracy and money laundering, and were subsequently convicted of criminal charges. Within days of their criminal indictments, the government started a civil forfeiture against their property which included cash, bonds, boats, planes and cars. The government said these items were connected to the illegal drug activity. Since the two defendants offered no contrary evidence, the district court granted the state's motion for summary judgment.

The court of appeals reversed the forfeiture, holding that the civil forfeiture proceeding was a "separate proceeding" from the criminal prosecution, the civil forfeiture was a punishment triggering the protections of the Double Jeopardy Clause, and a criminal prosecution and civil forfeiture action based on the same offense should be brought in the same proceeding.

The court began its reasoning by citing the Double Jeopardy Clause. Judge Reinhardt, writing for the majority, held that this case violated the Clause's protection against successive prosecutions. He wrote, "(The government) could have included a criminal forfeiture count in the indictment which led to the claimants’ convictions. . . Rather, it elected to pursue its forfeiture action in a separate and parallel proceeding . . . By doing so, the government prevented Arlt and Wren from being able, once and for all, to conclude [their] confrontation with society." A forfeiture case and a criminal prosecution are the same proceeding, held the court, only if they are brought together in the same indictment and tried simultaneously. Previously, a test in U.S. v. Ward, 448 U.S. 242 (1980) centering on a label attached to a proceeding determined whether a civil forfeiture violated the Double Jeopardy Clause. A new test was offered in U.S. v. Halper, 490 U.S. 435 (1989): "[A] civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving other retributive or deterrent purposes, is punishment, as we have come to understand." Another Supreme Court case, Austin v. U.S., 113 S.Ct. 2801 (1993), applied the same rule.

Applying this test, the court found that forfeiture in this case in not intended just for remedial purposes. The court also found that the statute at issue exempts innocent owners, it is likely that the forfeiture serves to deter and punish guilty conduct. Finally, the court found that where Congress has connected forfeiture to the commission of specific crimes, it is reasonable to presume that the forfeiture was intended as an additional deterrent or punishment for those crimes. Thus, the forfeiture is considered a punishment and violative of the Double Jeopardy Clause.

Does the Double Jeopardy Clause prohibit a civil proceeding for the forfeiture of property alleged to be proceeds of narcotics and money laundering activities in a case where the owners were also prosecuted for, and convicted of, narcotics and money laundering crimes?

This civil forfeiture action involves several million dollars of property, income, and business interests in California, Nevada, and Hawaii. The government alleges that all these assets were directly funded or used to facilitate a marijuana trafficking operation that the defendant's husband, Brian Degen, had been involved with for over 20 years. The state of Nevada filed several criminal indictments against Brian Degen but he fled to Switzerland and never returned. Swiss officials eventually arrested him. Based on his absence in Nevada, the district court granted summary judgment in the civil forfeiture action thereby barring any claims by Degen. The government also made a motion for summary judgment in its case against Karen, Brian’s wife, which was denied by the court. A second motion was entered, this time with evidence coupling Karen’s assets with Brian's illegal activity. A number of extensions to respond were given to her, and after a final deadline had passed, the court entered judgment against her.

The issues decided at the district court level were whether the fugitive disentitlement doctrine barred Brian from making any claims for his assets, and whether Karen’s failure to oppose a motion for summary judgment enough for the court to grant it. The court held in favor of the government on both issues.

The court decided the disentitlement doctrine provides that a fugitive from justice, under certain circumstances, loses the right to defend himself in court. It cites several U.S. Supreme Court cases as support for this position. Further, the court found no evidence to support Brian's claim that the U.S. government had anything to do with his arrest in Switzerland. Such involvement would have negated his fugitive status and enabled him to contest the forfeiture. (Note 2 which cites the U.S. Supreme Court decision in U.S. v. James Daniel Good Real Property, 114 S.Ct. 492 (1993) that seizure of real property for forfeiture without prior notice and a hearing violates the owner's due process rights under the Fifth Amendment.) Also, the court found that Karen had plenty of time and opportunity to respond to the motions for summary judgment. This case in no way represented a double jeopardy against her, held the court.

May the federal district court in its "inherent" or "supervisory" power, invoke "fugitive disentitlement" doctrine to prevent a citizen and resident of a foreign country from offering any defense against the confiscation of millions of dollars worth of his property, simply because the property owner has not traveled to United States to confront criminal indictment in a separate case?

The federal anti-drug statutes contain two asset forfeiture provisions. One requires certain types of property to be forfeited as part of the sentence imposed for a felony drug conviction. The other allows federal prosecutors to bring a civil forfeiture proceeding to seize certain types of property even if there is no criminal conviction.

The law requires a convicted federal felony drug offender to forfeit drug profits and proceeds, property used to commit the crime, and any interest he maintains in a continuing criminal drug enterprise (21 USCA § 853(a)). At the trial itself, there is a rebuttable presumption a convicted drug felon's property is subject to forfeiture if the prosecutor shows by a preponderance of the evidence that: (1) the property was acquired at the time of the drug crime or within a reasonable time afterward; and (2) there was no other likely source of the property (21 USCA § 853(d)).

In addition to mandatory forfeiture accompanying a felony drug conviction, federal law subjects other property to civil forfeiture proceedings and deprives the offender of any rights to the property. This property includes: (1) all privately owned vehicles, boats, or aircraft used to transport or conceal drugs; (2) all money, checks, notes and securities paid in exchange for drugs and proceeds traced to these exchanges; and (3) all real property, such as land, buildings, and other improvements, used to commit a drug felony (21 USCA § 881(a)).

Connecticut's drug forfeiture law authorizes prosecutors to institute civil forfeiture actions against any property derived or obtained from the proceeds of an illegal drug sale or exchange, or used or intended to be used to commit or facilitate an illegal drug sale. Property may be forfeited even if there is no criminal conviction. In addition, all proceeds and property obtained by a corporation as a result of money laundering are subject to forfeiture (CGS § 54-36h). Property may be forfeited even if there is no criminal conviction.

The state drug forfeiture law can be used whenever police officers discover property that was derived or obtained from the proceeds of an illegal drug sale or exchange, or used or intended to be

used to commit or facilitate an illegal drug sale.

How might these cases effect U.S. forfeiture laws? According to Paul M. Barrett of the Wall Street Journal, no matter how the Supreme Court decides on these cases, the government will still be allowed to seek forfeiture as a part of a criminal case. This adds to a prosecutor's burden because the burden of proof and other procedural rules are more stringent in criminal proceedings than in civil ones.

The U.S. Justice Department said in its appeal to the Supreme Court that "without the flexibility to use civil suits, state and federal authorities will lose a vital weapon against criminals." The department also states that civil forfeiture is not covered by the double-jeopardy clause because its nature is remedial, not punitive (Wall Street Journal, January 15, 1996).

Federal prosecutors have sought numerous asset forfeitures in recent years as a major part of the war on drugs. During the past decade, prosecutors have used the federal forfeiture law to step up such actions, raking in more than $4 billion worth of cars, cash, airplanes and other property in civil and criminal forfeitures (Los Angeles Times, February 5, 1996).

Authorities say the lower court rulings in Ursery and $405,089.23 have led many defendants to request the dismissal of criminal charges or convictions in cases involving civil forfeitures (Chicago Tribune, January 13, 1996).

HG:tjo

February 28, 1996 96-R-0418

You asked for additional information on the cases cited in a January 13, 1996 Hartford Courant article that are scheduled for review by the U.S. Supreme Court. The Court is going to decide whether laws that allow for a person’s prosecution and the seizure of his assets violate the Double Jeopardy Clause.

On January 12, 1996 the Supreme Court agreed to hear three drug-related cases. In two of these cases, one from California and the other from Michigan, the Court will determine whether federal authorities who file civil and criminal actions against a person who commits a drug-related offense do so in violation of the Double Jeopardy Clause. The Court will decide in the third case whether a Nevada court was correct in preventing people who flee to avoid criminal charges from defending themselves against a related civil forfeiture action. The Supreme Court should rule on these cases during the current term, with a decision out by the summer.

The federal forfeiture law contains both criminal and civil forfeiture provisions for a singular offense. (21 USCA § 853(a) and (d); § 881(a)) In contrast, Connecticut’s law has only a civil forfeiture provision. The state law can be used to seize property derived or obtained from the proceeds of an illegal drug sale or exchange, or used or intended to be used to commit or facilitate an illegal drug sale (CGS § 54-36h).

In the past ten years, federal prosecutors have sought many property forfeitures as a way of fighting drugs in America. No matter how the Supreme Court decides the cases on review, the government will still be able to seek forfeiture as part of a criminal case. Authorities say the decisions facing review have prompted defendants to challenge cases involving civil forfeitures.

CASES ON REVIEW

The following cases involve the Double Jeopardy Clause of the Fifth Amendment. The Clause prevents a person from being tried twice for the same offense and prohibits multiple punishments for the same offense.

The Michigan State Police charged the defendant with growing marijuana on his property and confiscated twelve plastic bags with marijuana seeds, two loaded firearms, marijuana stems and stalks, and a growlight. The Urserys and the government settled on a $13,250.00 payment for a civil forfeiture action brought on September 30, 1992. Afterward, a federal grand jury returned a criminal indictment against Ursery for the manufacture of marijuana. During his trial, Ursery argued that his criminal prosecution and punishment after settlement of a civil forfeiture proceeding based on the same conduct violated the Double Jeopardy Clause of the Fifth Amendment. The court held that the consent judgment in the forfeiture proceeding was an "adjudication" for double jeopardy purposes, the forfeiture was "punishment" for double jeopardy purposes, both proceedings involved the "same offense," and the proceedings were not a single, coordinated proceeding.

To determine whether the government violated the Double Jeopardy Clause, the court looked at three issues: (1) whether the civil forfeiture constituted "punishment" for double jeopardy purposes; (2) whether the civil forfeiture and criminal conviction were punishment for the same offense; and (3) whether the civil forfeiture and criminal prosecution were separate proceedings. For every issue the court decided positively and concluded that his Double Jeopardy rights had been violated. Basically, the court found that a forfeiture judgment was entered against the defendant when the state accepted a $13,250.00 settlement. The court's decision limited Ursery to its facts (e.g., the court held that in this case, not every case, criminal prosecution plus forfeiture resulted in a violation of the Double Jeopardy Clause).

The dissent disagreed with the majority’s view that the civil forfeiture proceeding and the criminal conviction did not amount to a single, coordinated prosecution. The dissent thought the government was simply seeking the full range of available sanctions for a single proceeding. The dissent found support for its conclusion based on the timing of the civil and criminal proceedings and the potential for government abuse of those proceedings. Both proceedings took place in close time to each other, and the government was not acting to pursue a second punishment because of its dissatisfaction with the first outcome. According to the dissent, the consent judgment in the civil action was innocuous.

Does the Double Jeopardy Clause prohibit Ursery’s criminal prosecution for manufacturing marijuana because the government had previously obtained a consent judgment in a civil action seeking forfeiture of his property?

James Wren and Charles Arlt appeared to be involved with legitimate gold mining activities, but they were actually conducting a methamphetamine manufacturing operation. They were indicted on various counts of conspiracy and money laundering, and were subsequently convicted of criminal charges. Within days of their criminal indictments, the government started a civil forfeiture against their property which included cash, bonds, boats, planes and cars. The government said these items were connected to the illegal drug activity. Since the two defendants offered no contrary evidence, the district court granted the state's motion for summary judgment.

The court of appeals reversed the forfeiture, holding that the civil forfeiture proceeding was a "separate proceeding" from the criminal prosecution, the civil forfeiture was a punishment triggering the protections of the Double Jeopardy Clause, and a criminal prosecution and civil forfeiture action based on the same offense should be brought in the same proceeding.

The court began its reasoning by citing the Double Jeopardy Clause. Judge Reinhardt, writing for the majority, held that this case violated the Clause's protection against successive prosecutions. He wrote, "(The government) could have included a criminal forfeiture count in the indictment which led to the claimants’ convictions. . . Rather, it elected to pursue its forfeiture action in a separate and parallel proceeding . . . By doing so, the government prevented Arlt and Wren from being able, once and for all, to conclude [their] confrontation with society." A forfeiture case and a criminal prosecution are the same proceeding, held the court, only if they are brought together in the same indictment and tried simultaneously. Previously, a test in U.S. v. Ward, 448 U.S. 242 (1980) centering on a label attached to a proceeding determined whether a civil forfeiture violated the Double Jeopardy Clause. A new test was offered in U.S. v. Halper, 490 U.S. 435 (1989): "[A] civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving other retributive or deterrent purposes, is punishment, as we have come to understand." Another Supreme Court case, Austin v. U.S., 113 S.Ct. 2801 (1993), applied the same rule.

Applying this test, the court found that forfeiture in this case in not intended just for remedial purposes. The court also found that the statute at issue exempts innocent owners, it is likely that the forfeiture serves to deter and punish guilty conduct. Finally, the court found that where Congress has connected forfeiture to the commission of specific crimes, it is reasonable to presume that the forfeiture was intended as an additional deterrent or punishment for those crimes. Thus, the forfeiture is considered a punishment and violative of the Double Jeopardy Clause.

Does the Double Jeopardy Clause prohibit a civil proceeding for the forfeiture of property alleged to be proceeds of narcotics and money laundering activities in a case where the owners were also prosecuted for, and convicted of, narcotics and money laundering crimes?

This civil forfeiture action involves several million dollars of property, income, and business interests in California, Nevada, and Hawaii. The government alleges that all these assets were directly funded or used to facilitate a marijuana trafficking operation that the defendant's husband, Brian Degen, had been involved with for over 20 years. The state of Nevada filed several criminal indictments against Brian Degen but he fled to Switzerland and never returned. Swiss officials eventually arrested him. Based on his absence in Nevada, the district court granted summary judgment in the civil forfeiture action thereby barring any claims by Degen. The government also made a motion for summary judgment in its case against Karen, Brian’s wife, which was denied by the court. A second motion was entered, this time with evidence coupling Karen’s assets with Brian's illegal activity. A number of extensions to respond were given to her, and after a final deadline had passed, the court entered judgment against her.

The issues decided at the district court level were whether the fugitive disentitlement doctrine barred Brian from making any claims for his assets, and whether Karen’s failure to oppose a motion for summary judgment enough for the court to grant it. The court held in favor of the government on both issues.

The court decided the disentitlement doctrine provides that a fugitive from justice, under certain circumstances, loses the right to defend himself in court. It cites several U.S. Supreme Court cases as support for this position. Further, the court found no evidence to support Brian's claim that the U.S. government had anything to do with his arrest in Switzerland. Such involvement would have negated his fugitive status and enabled him to contest the forfeiture. (Note 2 which cites the U.S. Supreme Court decision in U.S. v. James Daniel Good Real Property, 114 S.Ct. 492 (1993) that seizure of real property for forfeiture without prior notice and a hearing violates the owner's due process rights under the Fifth Amendment.) Also, the court found that Karen had plenty of time and opportunity to respond to the motions for summary judgment. This case in no way represented a double jeopardy against her, held the court.

May the federal district court in its "inherent" or "supervisory" power, invoke "fugitive disentitlement" doctrine to prevent a citizen and resident of a foreign country from offering any defense against the confiscation of millions of dollars worth of his property, simply because the property owner has not traveled to United States to confront criminal indictment in a separate case?

The federal anti-drug statutes contain two asset forfeiture provisions. One requires certain types of property to be forfeited as part of the sentence imposed for a felony drug conviction. The other allows federal prosecutors to bring a civil forfeiture proceeding to seize certain types of property even if there is no criminal conviction.

The law requires a convicted federal felony drug offender to forfeit drug profits and proceeds, property used to commit the crime, and any interest he maintains in a continuing criminal drug enterprise (21 USCA § 853(a)). At the trial itself, there is a rebuttable presumption a convicted drug felon's property is subject to forfeiture if the prosecutor shows by a preponderance of the evidence that: (1) the property was acquired at the time of the drug crime or within a reasonable time afterward; and (2) there was no other likely source of the property (21 USCA § 853(d)).

In addition to mandatory forfeiture accompanying a felony drug conviction, federal law subjects other property to civil forfeiture proceedings and deprives the offender of any rights to the property. This property includes: (1) all privately owned vehicles, boats, or aircraft used to transport or conceal drugs; (2) all money, checks, notes and securities paid in exchange for drugs and proceeds traced to these exchanges; and (3) all real property, such as land, buildings, and other improvements, used to commit a drug felony (21 USCA § 881(a)).

Connecticut's drug forfeiture law authorizes prosecutors to institute civil forfeiture actions against any property derived or obtained from the proceeds of an illegal drug sale or exchange, or used or intended to be used to commit or facilitate an illegal drug sale. Property may be forfeited even if there is no criminal conviction. In addition, all proceeds and property obtained by a corporation as a result of money laundering are subject to forfeiture (CGS § 54-36h). Property may be forfeited even if there is no criminal conviction.

The state drug forfeiture law can be used whenever police officers discover property that was derived or obtained from the proceeds of an illegal drug sale or exchange, or used or intended to be

used to commit or facilitate an illegal drug sale.

How might these cases effect U.S. forfeiture laws? According to Paul M. Barrett of the Wall Street Journal, no matter how the Supreme Court decides on these cases, the government will still be allowed to seek forfeiture as a part of a criminal case. This adds to a prosecutor's burden because the burden of proof and other procedural rules are more stringent in criminal proceedings than in civil ones.

The U.S. Justice Department said in its appeal to the Supreme Court that "without the flexibility to use civil suits, state and federal authorities will lose a vital weapon against criminals." The department also states that civil forfeiture is not covered by the double-jeopardy clause because its nature is remedial, not punitive (Wall Street Journal, January 15, 1996).

Federal prosecutors have sought numerous asset forfeitures in recent years as a major part of the war on drugs. During the past decade, prosecutors have used the federal forfeiture law to step up such actions, raking in more than $4 billion worth of cars, cash, airplanes and other property in civil and criminal forfeitures (Los Angeles Times, February 5, 1996).

Authorities say the lower court rulings in Ursery and $405,089.23 have led many defendants to request the dismissal of criminal charges or convictions in cases involving civil forfeitures (Chicago Tribune, January 13, 1996).

HG:tjo