Filed: March 11, 2003

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 02-1176

(CA-01-582-MU)

Kenneth Scott Nivens, etc., et al.,

Plaintiffs - Appellants,

versus

Peter S. Gilchrist, III, etc.,

Defendant - Appellee.

O R D E R

The court amends its opinion filed February 11, 2003, as

follows:

On page 2, second full paragraph, line 3 -- the sentence is

corrected to end “relating to the sale of 1024 ecstasy pills.”

On page 3, footnote 1 -- the footnote is corrected to read:

Appellants Nivens, Maners, and Stork were jointly

assessed, respectively, $6,259.67, for the possession of

700 and the sale and possession of 184 ecstasy pills, and

Maners was additionally assessed $ 1,336.33 for the sale

of 184 of these ecstasy pills. Stork was additionally

assessed $ 1,081.13 for the sale of another 140 ecstasy

pills.
- 2 -

On page 14, first full paragraph, line 3 -- the citation to

Younger is corrected to read “401 U.S. at 45 (holding that ‘danger

of irreparable loss [must be] great and immediate’)[.]”

For the Court - By Direction

/s/ Patricia S. Connor 

 Clerk 
PUBLISHED 

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

4444444444444444444444444444444444444444444444447

KENNETH SCOTT NIVENS, Individually

and as representatives of a class

pursuant to Rule 23, Fed.R.Civ.P.;

GLEN LANCE MANERS, Individually

and as representatives of a class

pursuant to Rule 23, Fed.R.Civ.P.;

TERRI LYNN STORK, Individually and

as representatives of a class

pursuant to Rule 23, Fed.R.Civ.P., No. 02-1176 

 Plaintiffs-Appellants,

 v.

PETER S. GILCHRIST, III, In his

official capacity as District Attorney

for the 26th Prosecutorial District

for the State of North Carolina, and

as representative of a class pursuant

to Rule 23, Fed.R.Civ.P.,

 Defendant-Appellee.

4444444444444444444444444444444444444444444444448

Appeal from the United States District Court 

for the Western District of North Carolina, at Charlotte. 

Graham C. Mullen, Chief District Judge. 

(CA-01-582-MU) 

Argued: September 24, 2002 

Decided: February 11, 2003 

Before WILLIAMS, MOTZ, and KING, Circuit Judges. 

____________________________________________________________

Affirmed by published opinion. Judge Williams wrote the opinion, in

which Judge Motz and Judge King joined.
COUNSEL 

ARGUED: Aaron Edmund Michel, Charlotte, North Carolina, for

Appellants. Norma Smithwick Harrell, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,

North Carolina, for Appellee.

____________________________________________________________

OPINION 

WILLIAMS, Circuit Judge:

 Appellants Kenneth Scott Nivens, Glen Lance Maners, and Terri

Lynn Stork brought an action in the United States District Court for

the Western District of North Carolina, pursuant to 42 U.S.C.A.

§ 1983 (West Supp. 2002) and the Federal Declaratory Judgment Act,

28 U.S.C.A. §§ 2201 and 2202 (West 1994), to enjoin the pending

state criminal drug prosecutions against them, alleging that their payment of North Carolina's drug tax was a criminal, not civil, penalty,

and thus any criminal punishment imposed in their pending criminal

trial will violate the Double Jeopardy Clause of the Fifth Amendment,

made applicable to the states through the Due Process Clause of the

Fourteenth Amendment. The district court abstained from exercising

jurisdiction and intervening in the state proceedings based on Younger

v. Harris, 401 U.S. 37 (1971), which reaffirmed the principle that a

federal court "should not act to restrain a [state] criminal prosecution,

when the moving party has an adequate remedy at law and will not

suffer irreparable injury if denied equitable relief." Id. at 43-44. The

district court concluded that Appellants had not exhausted their state

remedies and that they would not suffer irreparable damage if the

state action was not enjoined because Appellants had yet to be subjected to a criminal prosecution. For the reasons that follow, we

affirm the district court's decision to abstain.

I. 

 The underlying facts in this case are not in dispute. On July 8,

2000, Appellants were arrested for various violations of the North

Carolina Unauthorized Substances Act relating to the sale of 

2 
1024 ecstasy pills. Shortly thereafter, North Carolina assessed taxes

for possession of the drugs, including penalties and interest, totaling

$8,677.13,1 pursuant to North Carolina's Unauthorized Substances

Tax Act, N.C. Gen. Stat. §§ 105-113.105 et seq. (2000).2 Within a

month or so, Appellants paid the taxes in full and without contest.

Subsequently, North Carolina indicted Appellants for possession,

sale, delivery, and transportation of, and conspiracy to sell and

deliver, an unauthorized substance and scheduled a criminal trial for

the November 5, 2001 term of the Superior Court of North Carolina.3

On October 29, 2001, Appellants filed a motion for a temporary

restraining order and a preliminary injunction in the district court to

stay their trial. North Carolina voluntarily stayed Appellants' prosecution until January 2002 to allow Appellants adequate time to raise

their contentions before the district court, and we issued a stay of the

district court's order pending the outcome of this appeal. Because we

now affirm the district court's decision to abstain from exercising

jurisdiction, we lift our stay.

II. 

A. 

 The sole issue on appeal is whether the district court properly

abstained from exercising jurisdiction under Younger, thus declining

to reach Appellants' Fifth Amendment claims under the Double Jeopardy Clause.4

 We review the district court's decision to abstain under

____________________________________________________________

 1 Appellants Nivens, Maners, and Stork were jointly assessed, respectively,

$6,259.67, for the possession of 700 and the sale and possession of

184 ecstasy pills, and Maners was additionally assessed $ 1,336.33 for

the sale of 184 of these ecstasy pills. Stork was additionally assessed

$ 1,081.13 for the sale of another 140 ecstasy pills.

 2 We refer to the Unauthorized Substances Tax Act, N.C. Gen. Stat.

§§ 105-113.105 et seq. (2000), as North Carolina's "drug tax" throughout

the opinion.

 3 Appellants named Peter S. Gilchrist, III, the District Attorney for the

Twenty-Sixth Prosecutorial District of North Carolina, as Respondent in

his petition. For ease of reference we refer to Gilchrist as "North Carolina" throughout the opinion.

 4 The Fifth Amendment's Double Jeopardy Clause states, "nor shall

any person be subject for the same offence to be twice put in jeopardy

3 
Younger for abuse of discretion. Martin Marietta Corp. v. Md.

Comm'n on Human Rel., 38 F.3d 1392, 1396 (4th Cir. 1994); see also

Freeman v. Case Corp., 118 F.3d 1011, 1014 (4th Cir. 1997) (noting

that an error of law constitutes an abuse of discretion).

 Based upon principles of federalism, the Supreme Court in Younger articulated the policy of comity underlying the federal courts'

obligation to refrain from adjudicating the merits of federal constitutional claims in an underlying state criminal action: adjudicating such

claims needlessly injects federal courts into ongoing state criminal

prosecutions, undermines the state's ability to enforce its laws, and

does not show "a proper respect for state functions." Younger, 401

U.S. at 44. The Court also recognized that federal courts acting as

courts of equity in this context "should not act to restrain a criminal

prosecution, when the moving party has an adequate remedy at law

and will not suffer irreparable injury if denied equitable relief." Id. at

43-44. Later, in Middlesex County Ethics Comm. v. Garden State Bar

Ass'n, 457 U.S. 423 (1982), the Court held that a federal court should

abstain from interfering in a state proceeding, even though it has jurisdiction to reach the merits, if there is (1) an ongoing state judicial proceeding, instituted prior to any substantial progress in the federal

proceeding; that (2) implicates important, substantial, or vital state

interests; and (3) provides an adequate opportunity for the plaintiff to

raise the federal constitutional claim advanced in the federal lawsuit.

Id. at 432; Martin Marietta Corp., 38 F.3d at 1396 (stating the same

considerations).

____________________________________________________________

of life or limb." U.S. Const. amend. V. The Supreme Court has recognized that the Double Jeopardy Clause protects individuals from being

criminally prosecuted more than once for the same offense. See Monge

v. California, 524 U.S. 721, 727-28 (1998). Protection from subsequent

or "successive" criminal prosecutions extends to any party who has

already been the subject of a criminal prosecution for the same offense,

regardless of the result of the first criminal prosecution. Id. at 729. The

Court has also concluded that the Double Jeopardy Clause protects individuals from the imposition of "multiple criminal punishments for the

same offense," but "only when such occurs in successive proceedings."

Hudson v. United States, 522 U.S. 93, 99 (1997).

4 
 All three of the circumstances identified in the Middlesex inquiry

are present here. First, Appellants instituted this lawsuit in an effort

to stop, and eventually dismiss, North Carolina's pending criminal

proceedings against them. Second, North Carolina has a very important, substantial, and vital interest in preventing violations of its criminal laws. See Younger, 401 U.S. at 43-44; see also Cooper v.

Oklahoma, 517 U.S. 348, 367 (1996) (noting that "the State's interest

in the efficient operation of its criminal justice system" is an "important state interest[ ]"). Third, as is discussed below, infra at 12-17,

Appellants have an adequate opportunity in the state prosecution to

raise the double jeopardy claim advanced in the federal lawsuit,

although they assert that it would be futile. The district court, accordingly, did not abuse its discretion in abstaining from hearing Appellants' case, unless the case falls under an exception to the general

principle requiring abstention.

B. 

 The Supreme Court has recognized that in "extraordinary circumstances," federal courts have discretion to disregard the "strong federal policy against federal court interference with pending state

judicial proceedings." Middlesex County Ethics Comm., 457 U.S. at

431. In Younger, the Supreme Court explained the exception to this

"strong federal policy":

"[W]hen absolutely necessary for protection of constitutional rights, courts of the United States have power to

enjoin state officers from instituting criminal actions. But

this may not be done, except under extraordinary circumstances, where the danger of irreparable loss is both great

and immediate. Ordinarily, there should be no interference

with such officers; primarily, they are charged with the duty

of prosecuting offenders against the laws of the state, and

must decide when and how this is to be done. The accused

should first set up and rely on his defense in the state courts,

even though this involves a challenge of the validity of some

statute, unless it plainly appears that this course would not

afford adequate protection."

Younger, 401 U.S. at 44 (emphasis added) (quoting Fenner v. Boykin,

271 U.S. 240, 243-44 (1926)); see also Kugler v. Helfant, 421 U.S.

5 
117, 123-24 (1975) (holding that federal equitable intervention in a

state trial may be warranted upon a showing of "bad faith or harassment by state officials," "where the state law to be applied in the

criminal proceeding is flagrantly and patently violative of express

constitutional prohibitions," or where "other extraordinary circumstances" exist that present the necessary threat of irreparable injury).

Thus, a federal court must abstain from interfering with an ongoing

state proceeding where a litigant has "an `opportunity to raise and

have timely decided by a competent state tribunal the federal issues

involved' and . . . no bad faith, harassment, or other exceptional circumstances dictate to the contrary." Middlesex, 457 U.S. at 437 (quoting Gibson v. Berryhill, 411 U.S. 564, 577 (1973)).

 Appellants do not claim that their prosecution was undertaken with

the intent to harass or because of any bad faith. Nor do they claim that

they have exhausted their avenues for relief in the state court proceeding. See Huffman v. Pursue Ltd., 420 U.S. 592, 608-10 & n.21 (1975)

(requiring, for a federal court to assert jurisdiction over federal issues

under 42 U.S.C.A. § 1983 in a pending state action, exhaustion of

state appellate remedies "unless [the claimant] can bring himself

within one of the exceptions specified in Younger"). Accordingly, for

a federal court to disregard the mandates of Younger, Appellants must

show extraordinary circumstances demonstrating that they do not

have an adequate remedy at law and the danger of irreparable injury

if they are denied equitable relief is both great and immediate. Younger, 401 U.S. at 44. As is discussed below, we conclude that Appellants cannot establish either.

C. 

1. 

 Appellants first contend that Younger is inapplicable because, they

assert, it "plainly appears" that the courts of North Carolina will "not

afford" them "adequate protection." Younger, 401 U.S. at 44. They

concede that they have pretrial avenues in which they can raise their

double jeopardy claims in state court, but they argue that because the

North Carolina Supreme Court has already decided that North Carolina's pre-1995 amendment drug tax5

is not a criminal penalty, see ____________________________________________________________

 5 Because the General Assembly of North Carolina has amended the

drug tax law several times since the courts in State v. Ballenger, 481

6 
State v. Ballenger, 472 S.E.2d 572 (N.C. Ct. App. 1996), aff'd, 481

S.E.2d 84 (N.C. 1997) (per curiam), any contrary argument in a North

Carolina state court would be futile. Further, Appellants note that this

court has determined that North Carolina's pre-1995 amendment drug

tax is a criminal penalty. See Lynn v. West, 134 F.3d 582, 593-94 (4th

Cir. 1998). The disagreement between the North Carolina courts and

this court, Appellants assert, demonstrates that North Carolina will

violate their federal constitutional rights and, thus, will not afford

them adequate protection. As discussed below, we conclude that

because neither the Fourth Circuit nor the North Carolina Supreme

Court has ever analyzed the post-amendments drug tax under which

Appellants were assessed their taxes to determine if it is a criminal

punishment, Appellants cannot demonstrate that the North Carolina

courts will plainly not afford them adequate protection.

 The decisions in Ballenger and Lynn were based on an analysis of

Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767,

783 (1994). In Kurth Ranch, the United States Supreme Court determined that Montana's tax on illegal drugs was so fundamentally punitive that it was actually a criminal punishment such that an

assessment of the drug tax, after a criminal penalty had already been

imposed, violated the Double Jeopardy Clause by imposing an unconstitutional second punishment. Id. at 783. Montana characterized its

law as civil, but the Court determined that it was actually a "second

punishment" for double jeopardy purposes by looking at four features:

"(1) the high tax rate, (2) the deterrent purpose of the tax, (3) the fact

that the tax was conditioned on the commission of a crime, and (4)

the fact that the tax was levied on `possession of goods that no longer

exist and that the taxpayer never lawfully possessed.'" Lynn, 134 F.3d

at 589 (quoting Kurth Ranch, 511 U.S. at 780-84).6

____________________________________________________________

S.E.2d 84 (N.C. 1997), and Lynn v. West, 134 F.3d 582 (4th Cir. 1998),

considered it, see infra at 8-10, we refer to the drug tax law in force at

the time of Ballenger and Lynn as the "pre-1995 amendment drug tax"

and the drug tax law after the amendments as the "post-amendments drug

tax."

 6 Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767

(1994), did not involve the issue of Younger abstention because the

underlying dispute occurred in a federal bankruptcy proceeding and went

to the Supreme Court on direct review from the Ninth Circuit Court of

Appeals, id. at 773-75.

7 
 In Ballenger, 481 S.E.2d at 84, the North Carolina Supreme Court

affirmed, without comment, an appellate court decision holding that

North Carolina's pre-1995 amendment drug tax did not have "such

fundamentally punitive characteristics as to render it violative of the

prohibition against multiple punishments [under] the Double Jeopardy

Clause," Ballenger, 472 S.E.2d at 575. The North Carolina appellate

court reviewed the pre-1995 amendment drug tax and concluded that

it was not as punitive as Montana's drug tax in Kurth Ranch and not

a criminal penalty because:

the North Carolina tax becomes payable within forty-eight

hours after the taxpayer comes into possession of the substance [and] is not a tax on confiscated goods, as was the

case with the Montana tax, which became due only upon the

taxpayer's arrest for possession of the substance. To the

contrary, the dealer is not required . . . to disclose his or her

identity . . . and any information obtained . . . is confidential

and cannot be used in a criminal prosecution . . . .

Id. at 575.

 After the Ballenger decision, we construed the same pre-1995

amendment drug tax and concluded that it was a criminal penalty

because:

the [d]rug [t]ax contains no features that allow us to distinguish Kurth Ranch. The rate of taxation is even steeper than

the tax in Kurth Ranch. Unlike the application of a normal

income tax on illegal activity, the [d]rug [t]ax is enforced

only against criminals. . . . [T]he [d]rug [t]ax does not contemplate lawful dealings in the product that is the subject of

the tax. The [d]rug [t]ax singles out a class of persons who

have engaged in criminal activity and subjects the class to

a rate of taxation far beyond that faced by any legitimate

taxpayer.

Lynn, 134 F.3d at 592.7

____________________________________________________________

 7 Although we did address in Lynn whether North Carolina's pre-1995

amendment drug tax was a criminal punishment under Kurth Ranch, as

8 
 In 1995, 1997, and again in 1998, before North Carolina assessed

the drug tax on Appellants, the General Assembly of North Carolina,

partially in response to the Supreme Court's decision in Kurth Ranch

and our decision in Lynn, dramatically altered its drug tax. For example, in 1995, the General Assembly (1) made the drug tax payable

upon receipt of drugs rather than upon a criminal violation; (2) lowered the tax on various drugs; (3) repealed the section that made the

violation of the drug tax a Class I felony; and (4) lowered the interest

and penalty applicable when a dealer fails to pay the tax within 45

days of receiving the drugs from 100% to 50%. See N.C. Gen. Stat.

§§ 105-113.106, -113.107, -113.110, -113.110(A) (1994), amended

by An Act to Revise the Controlled Substance Excise Tax, Ch. 340,

H.B. No. 123 (1995). In 1997, the General Assembly included previously unaccounted for substances, such as mash and other illicit beverages. See N.C. Gen. Stat. §§ 105-113.106, -113.107 (1996),

amended by An Act to Levy an Excise Tax on Illicit Spirituous

Liquor, an Excise Tax on Mash, and an Excise Tax on Illicit Mixed

Beverages, N.C. Sess. Laws 1997-292 (1997). In 1998, the General

Assembly (1) lowered the rate at which it taxed cocaine from $200

per gram to $50 per gram; (2) lowered the rate at which it taxed drugs

based on dosage units from $400 per 10 dosage units to $200 per 10

dosage units; and (3) completely abolished the special penalty and

interest section and replaced it with the general interest and penalty

provisions applicable to all taxes paid in North Carolina, effectively

reducing the penalty for late payment from 50% to 10-40%. See N.C.

Stat. §§ 105-113.107, -113.110A (1997), amended by An Act to

Amend the Excise Tax on Controlled Substances, N.C. Sess. Laws

1998-218 (1998). As part of the 1998 amendments, the General

Assembly expressly stated:

Whereas, the intent of the General Assembly in enacting this

tax continues to be to raise revenue through a civil tax on

____________________________________________________________

applied to the individuals in that case, we did not address Younger

abstention or double jeopardy because Lynn involved a federal drug prosecution and a challenge to a subsequent assessment of the state drug tax.

Lynn, 134 F.3d 582, 583-88 (1998) (determining that North Carolina's

pre-1995 amendment drug tax was a criminal penalty that could not be

imposed without constitutional safeguards that attach to criminal proceedings).

9 
this highly profitable activity . . . [and] not to create a criminal penalty . . . Whereas, upon . . . challenge in the federal

courts, the controlled substance tax was found in 1998 to be

a criminal penalty . . . Whereas, it is, therefore, the intent of

the North Carolina General Assembly to modify the tax in

accordance with [Lynn], so that the tax may continue to be

assessed in a manner consistent with the law as interpreted

[in Lynn].

An Act to Amend the Excise Tax on Controlled Substances, N.C.

Sess. Laws 1998-218 (1998).

 Neither North Carolina's Ballenger decision nor our decision in

Lynn addressed North Carolina's amended drug tax, which is at issue

in this case, because both cases involved tax assessments before 1995.8

In fact, no court9 has considered whether North Carolina's postamendments drug tax provides the "the clearest proof" of punitive

purpose or effect necessary to override the General Assembly's intent

____________________________________________________________

 8 Although our decision in Lynn cites to the 1996 version of North Carolina's drug tax, we clearly interpreted North Carolina's pre-1995

amendment drug tax. See, e.g., Lynn, 134 F.3d at 590 (discussing the

100% penalty applicable to late payments of the drug tax). As stated in

the text, the General Assembly of North Carolina modified the penalty

provision for late payment in 1995 from a 100% to a 50% penalty and

in 1998 reduced the penalty to 10-40%. See supra at 9-10.

 9 Lower courts in North Carolina have decided cases where local

authorities had assessed the post-amendments drug tax. The courts in

these cases, however, have not discussed the 1995, 1997, or 1998 amendments and have not addressed whether the post-amendments drug tax

contains the punitive characteristics necessary render it a criminal penalty under Kurth Ranch. Rather, the courts relied on North Carolina's

Supreme Court ruling in Ballenger and summarily held, without comment, that the drug tax is not a criminal penalty. See, e.g., State v. Crenshaw, 551 S.E.2d 147, 151 (N.C. Ct. App. 2001) (stating that Lynn "is

not binding on our State courts" and overruling a double jeopardy objection on that basis). Regardless, even if North Carolina's pre-1995 amendment drug tax and post-amendments drug tax were substantially the

same, the North Carolina Supreme Court is not bound by its prior decision and can overturn it. See Leonard v. Hammond, 804 F.2d 838, 840-

41 (4th Cir. 1986).

10 
to create a civil law and transform it into a criminal penalty. Hudson

v. United States, 522 U.S. 93, 99-100 (1997) (holding that "only the

clearest proof will suffice to override legislative intent and transform

what has been denominated a civil remedy into a criminal penalty")

(internal citations omitted).10 Based on the wide-ranging amendments

to the drug tax and the fact that Appellants make no claim that the

amendments were insubstantial, we decline to hold that North Carolina's post-amendments drug tax is sufficiently similar to the pre-1995

amendment drug tax such that we should treat them the same.11 Sim-

____________________________________________________________

 10 Under Hudson, to determine whether a sanction is a civil or criminal

penalty, a court must (1) "ask whether the legislature `in establishing the

penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other,'" Hudson, 522 U.S. at 493 (quoting

United States v. Ward, 488 U.S. 242, 248 (1980)), and then, if the sanction was intended to be civil in nature, (2) "`inquir[e] further whether the

statutory scheme was so punitive either in purpose or effect' as to `transfor[m] what was clearly intended as a civil remedy into a criminal penalty,'" id. (quoting Ward, 488 U.S. at 248-49, and Rex Trailor Co. v.

United States, 350 U.S. 148, 154 (1956)). This second inquiry is guided

by the factors discussed in Kennedy v. Mendoza-Martinez, 372 U.S. 144,

168-69 (1963), and "`considered in relation to the statute on its face,'"

Hudson, 522 U.S. at 493 (quoting Kennedy, 372 U.S. at 169). The Court

noted, "important[ly] . . . , [that] only `the clearest proof' will suffice to

override legislative intent and transform what has been denominated a

civil remedy into a criminal penalty." Id. (quoting Ward, 488 U.S. at

249). Although Hudson, 522 U.S. at 101-02, expressly overruled the

method of analysis in United States v. Halper, 490 U.S. 435 (1989), on

which Kurth Ranch relied, we recognized in Lynn that Hudson's "`clearest proof' requirement "does not appear to make the challenger's burden

any tougher than it already was." See Lynn, 134 F.3d at 592 n.10 (quoting Hudson, 522 U.S. at 493).

 11 For example, under North Carolina's pre-1995 amendment drug tax,

the plaintiff in Lynn was assessed $389,000 for possession of 970 grams

of cocaine. See Lynn, 134 F.3d at 584 (calculating a $200 per gram tax

plus a 100% penalty plus $1,125 interest). Under North Carolina's postamendments drug tax, the same 970 grams of cocaine would only be

assessed approximately $67,920 ($50 per gram plus a 40% penalty),

which would be approximately one-sixth of the assessed amount. Likewise, in the instant case, Appellants would have been assessed approximately $48,400 for their 1208 ecstasy pills under North Carolina's pre11 
ply put, an assertion that the North Carolina courts will likely decide

a constitutional issue in a way contrary to what Appellants believe the

Constitution mandates is not a sufficient basis to avoid application of

Younger abstention. See Leonard v. Hammond, 804 F.2d 838, 840-41

(4th Cir. 1986) (noting that futility was not demonstrated by a North

Carolina Supreme Court ruling because the North Carolina Supreme

Court could modify or reverse a prior holding). Because our decision

in Lynn and the North Carolina cases Appellants cite are not controlling for their situation, Appellants cannot demonstrate the type of

futility that must be established to justify federal court intervention in

an ongoing state proceeding.12

2. 

 Appellants argue in the alternative that Younger abstention is inappropriate under the reasoning of Gilliam v. Foster, 75 F.3d 881, 903

(4th Cir. 1996) (en banc) (Gilliam III). Specifically, they contend that

Gilliam III stands for the proposition that the mere allegation of "a

colorable claim" of a double jeopardy violation is sufficient to establish exceptional circumstances warranting federal court intervention

without any separate showing. Gilliam III, 75 F.3d at 904. Finding

Appellants' reliance on Gilliam III misplaced, we reject their overly

expansive interpretation of that case.

____________________________________________________________

1995 amendment drug tax ($200 per 10 dosage units plus a 100% penalty) while they were in fact only assessed $8,667.13 under the postamendments drug tax ($50 per 10 dosage units plus a 40% penalty),

which is approximately one-sixth of what would have been assessed

under the pre-1995 amendment drug tax. Moreover, the postamendments drug tax is not conditioned on a criminal offense, and payment of the tax cannot be used to criminally prosecute the taxpayer.

 12 We have acknowledged, albeit in the habeas corpus context, that

North Carolina's decisions holding that the pre-amendment drug tax was

distinguishable from the tax in Kurth Ranch are not objectively unreasonable. See Vick v. Williams, 233 F.3d 213, 220-22 (4th Cir. 2000)

(holding in a habeas challenge under § 2254 that North Carolina's decisions upholding the pre-amendment drug tax as non-criminal were not an

objectively unreasonable interpretation of federal law).

12 
 In Gilliam III, petitioners argued that because a state trial judge

granted a mistrial over their objection and in the absence of manifest

necessity during their first trial, subjecting them to a second criminal

prosecution would violate their rights under the Double Jeopardy

Clause. We did not hold that an allegation of a double jeopardy violation automatically precludes Younger abstention. Rather, after detailing the well-settled double jeopardy jurisprudence protecting

individuals against successive prosecutions for the same offense, we

concluded that petitioners' allegations established a substantial likelihood of an irreparable double jeopardy violation. Id. at 893-95. We

expressly based our decision not to abstain under Younger on the fact

that a "portion of the constitutional protection [the Double Jeopardy

Clause] affords would be irreparably lost if Petitioners were forced to

endure the second trial before seeking to vindicate their constitutional

rights at the federal level." Id. at 904 (emphasis added); see also

Abney v. United States, 431 U.S. 651, 660 (1977) (concluding that the

protection from multiple trials for the same offense afforded by the

Double Jeopardy Clause "would be significantly undermined if appellate review were postponed until after conviction and sentence").

 In contrast, Appellants have presented a much less compelling

argument that absent federal court intervention, they will suffer an

immediate and irreparable constitutional deprivation. See e.g., Younger, 401 U.S. at 44. Unlike the defendants in Gilliam III, Appellants

yet have access to pretrial avenues in their current criminal prosecutions whereby they may raise their constitutional contentions before

any double jeopardy injury could inure. See supra at 3-4; see also

N.C. Gen. Stat. § 15A-952(a) (2001) ("Any defense, objection, or

request which is capable of being determined without the trial of the

general issue may be raised before trial by motion."); Gilliam III, 75

F.3d at 889 (noting that the defendants had filed a motion to dismiss

on double jeopardy grounds in the state courts prior to their second

trial and appealed the denial of that motion to the South Carolina

Supreme Court before invoking federal jurisdiction); cf. Gerstein v.

Pugh, 420 U.S. 103, 107-08 n.9 (1975) (finding state forum inadequate because there was no preliminary hearing at which plaintiffs

could present constitutional claims as to pretrial conditions). Because

jeopardy does not attach during pretrial procedures and motions, Crist

v. Bretz, 437 U.S. 28, 50 (1978) ("[I]t has never been held that jeopardy attaches as of the making or deciding of pretrial motions."), and

13 
Appellants have state procedures whereby they may foreclose a violation of their double jeopardy rights, any double jeopardy harm at this

stage of Appellants' litigation is neither immediate nor irreparable.

Appellants must raise their contentions in their current prosecution

and appeal any undesirable decision before a federal district court

asserts jurisdiction.13 See Justices of Boston Mun. Court v. Lydon, 466

U.S. 294, 302 (1984) (noting that the defendant had filed a pretrial

motion to dismiss and appealed it to the Massachusetts Supreme

Court before invoking federal jurisdiction); Willhauck v. Flanagan,

448 U.S. 1333, 1325-26 (1980) (Brennan, Circuit Justice) (denying

consideration of a writ of certiorari for a claim based on double jeopardy due to a lack of "irreparable harm" because "once jeopardy

[attaches for the first time], [a defendant] should . . . make his claim

before the [state] trial judge [in his second trial], at which time the

courts can give due consideration to his claim"). Because Appellants

have not made a showing of an immediate and irreparable constitutional injury absent federal court intervention, Gilliam III does not

permit us to disregard Younger.

 We also note that Appellants have not shown a "great" or "substantial" likelihood that they will suffer any constitutional deprivation.

See, e.g., Younger, 401 U.S. at 45 (holding that “danger of irreparable

loss [must be] great and immediate”); see also City of Los Angeles v.

Lyons, 461 U.S. 95, 111-12 (1983) (holding that a "substantial and

immediate irreparable injury" is a precondition to invoking the

exceptional circumstances exception to Younger abstention). For

Appellants to establish that their prosecution violates double jeopardy

by exposing them to multiple criminal punishments, they must prove:

____________________________________________________________

 13 Because Appellants have pretrial avenues to raise their double jeopardy claim before the North Carolina courts, we need not resolve the

issue of whether a federal district court should exercise its jurisdiction

over Appellants' claim once they have exhausted North Carolina's pretrial procedures. See Younger v. Harris, 401 U.S. 37, 46 (1971) ("[I]n

view of the fundamental policy against federal interference with state

criminal prosecutions, even irreparable injury is insufficient unless it is

both great and immediate. . . . Certain types of injury, in particular, the

cost, anxiety, and inconvenience of having to defend against a single

criminal prosecution, could not by themselves be considered `irreparable' in the special legal sense of that term. Instead, the threat to the plaintiff's federally protected rights must be one that cannot be eliminated by

his defense to a single criminal prosecution.").

14 
(1) that the payment of the drug tax was a criminal penalty; (2) that

took place in a separate proceeding; (3) for the same offense for

which they are now being prosecuted. See Hudson, 522 U.S. at 98

(setting forth test for double jeopardy violation based upon multiple

punishments). As is set forth below, there are numerous, significant

impediments to Appellants' ability to make this showing.

 Initially, it is arguable whether the current version of North Carolina's drug tax constitutes criminal punishment within the meaning of

Hudson. See Hudson, 522 U.S. at 98 (concluding that administrative

sanctions were not sufficiently punitive and, therefore, were not criminal penalties for purposes of double jeopardy); see also Kansas v.

Hendricks, 521 U.S. 346, 361 (1997) (discussing role of statutory

construction in determining whether penalty is civil or criminal under

Hudson); see generally Lisa Melenyzer, Double Jeopardy Protections

from Civil Sanctions after Hudson v. United States, 89 J. Crim. L. &

Crim. 1007, 1009-1011, 1016-23 (1999) (explaining the evolution,

criticisms, and limits of the multiple punishment doctrine). Appellants

contend that the drug tax is a criminal penalty on the basis of Lynn.

We cannot agree that Lynn is controlling. As is discussed at length

above, see supra at 9-12, since Lynn was decided, North Carolina has

significantly amended its drug tax laws. These amendments have yet

to be analyzed to determine whether those portions of the drug tax

that were discussed in Lynn have been altered such that the drug tax

no longer implicates any federal constitutional concern. See N.C.

Gen. Stat. §§ 105-113.107(a), (2a), -113,110A, -236.

 Assuming arguendo that the current drug tax is a criminal penalty,

it is not clear that the payment of the drug tax took place in a prior

"proceeding" within the meaning of Hudson. See Hudson, 522 U.S.

at 99 (concluding that the Double Jeopardy Clause protects individuals from the imposition of "multiple criminal punishments" for the

same offense, but "only when such occurs in successive proceedings."). When Appellants received their drug tax assessment, they

simply paid the tax; they apparently did not participate in a hearing

or an appearance of any type. Under Hudson, if there has been no

prior "proceeding," Appellants' current prosecution cannot be successive and, thus, the Double Jeopardy Clause would not be implicated.

15 
 Similarly, to the extent that the assessment of the drug tax is part

of the current prosecution, and not a separate proceeding, there likely

is no double jeopardy restriction on imposing both types of punishment, irrespective of whether the drug tax is deemed a "criminal"

punishment. Missouri v. Hunter, 459 U.S. 359, 368-69 (1983)

("Where . . . a legislature specifically authorized cumulative punishment under two statutes, regardless of whether those two statutes proscribe the `same' conduct . . . the prosecutor may seek and the trial

court or jury may impose cumulative punishment under such statutes

in a single trial."); Albernaz v. United States, 450 U.S. 333, 344

(1981) ("[T]he question of what punishments are constitutionally permissible is no different from the question of what punishment the

Legislative Branch intended to be imposed. Where Congress

intended, as it did here, to impose multiple punishments, imposition

of such sentences does not violate the Constitution."); United States

v. Studifin, 240 F.3d 415, 418 (4th Cir. 2001) ("Where the issue is

solely that of multiple punishment, as opposed to multiple prosecutions, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature

intended."); United States v. Terry, 86 F.3d 353, 355 (4th Cir. 1996)

("If [the Legislature] clearly authorizes multiple punishments for the

same act or transaction, the Double Jeopardy Clause is not offended

when the multiple punishments are imposed after a single trial.");

Cummings v. Evans, 161 F.3d 610, 614 (10th Cir. 1998) (holding that

the double jeopardy inquiry is limited to determining "whether [the]

state legislature intended to prescribe cumulative punishments for a

single criminal incident, [and] we are bound by a state court's determination of the legislature's intent"). Thus, if the General Assembly

of North Carolina contemplated and in fact intended that drug dealers

be criminally punished for any drug offenses and assessed a tax for

any unauthorized substances in their possession, see N.C. Gen. Stat.

§ 105-113.105 (2000) ("Nothing in this Article may in any manner

provide immunity from criminal prosecution for a person who possesses an illegal substance."), there is no double jeopardy bar on

North Carolina prosecuting, and a court imposing, both a criminal

punishment and a drug tax assessment in a single proceeding.14 In

____________________________________________________________

 14 The Due Process Clause also assures that what punishment is

imposed has prior legislative approval. See Pacific Mut. Life Ins. Co. v.

16 
sum, we are not persuaded that there is a substantial likelihood that

Appellants' prosecution is violative of double jeopardy principles.

 None of this is to say that Appellants ultimately will not prevail on

their double jeopardy claim. It is only to say that where the alleged

double jeopardy violation is far from clear, immediate, or irreparable,the important Younger policy of allowing the State to pursue its

prosecution free from federal court intervention outweighs the Appellants' interest in having the double jeopardy issue resolved in a federal forum. Commonwealth of Va. v. Kelly, 29 F.3d 145, 147-48 (4th

Cir. 1994) ("There being little, if any, likelihood that Kelly can succeed on the merits of his federal double jeopardy claim, and the public interests weighing heavily in favor of the Commonwealth's ability

to pursue its criminal proceedings free of federal court intervention,

the district court erred in staying Kelly's . . . trial . . . ." (internal citations omitted)); Stevens, 675 F.2d at 949 (holding that "the Younger

policy is the weightier when the defendant is not being asked to

undergo a second trial"). Thus, in balancing the important policies

underlying Younger, we conclude that Appellants have not established the existence of a substantial and immediate danger of irreparable constitutional loss warranting federal court intervention.

III. 

 In conclusion, the issue before us is not whether Appellants will

suffer unconstitutional multiple punishments; rather, it is whether a

federal court should intervene into a state court proceeding to decide

the federal constitutional issues for the state court. The essence of

Younger is comity — state courts are equally entitled to, and capable

of, interpreting constitutional law:

[S]ince both federal and state courts have a duty to enforce

the Constitution, there is no constitutional basis, in the

____________________________________________________________

Haslip, 499 U.S. 1, 28-29 (1991) (Scalia, J., concurring in judgment)

(discussing the breadth of the Due Process Clause and how it is a guarantee of the process provided by the law of the land); Crist v. Bretz, 437

U.S. 28, 51 (1978) (holding that the Due Process Clause protects against

prosecutorial abuse).

17 
absence of some demonstrable infirmity in the state judicial

process itself, for preferring federal courts to state courts as

adjudicators of federal constitutional claims.

1 Laurence H. Tribe, American Constitutional Law, § 3-28 at 570 (3d

ed. 2000). "Minimal respect for the state processes, of course, precludes any presumption that the state courts will not safeguard federal

constitutional rights." Middlesex, 457 U.S. at 431. Because Appellants

failed to establish any of the exceptions to Younger, we conclude that

the district court did not abuse its discretion in abstaining from adjudicating Appellants' double jeopardy claim.

AFFIRMED 

18