## 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
ClerkPUBLISHED

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 Harre ll, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.

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OPINION

WILLIAMS, Circuit Judge:

Appellants Kenneth Scott Ni vens, 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 pendingstate 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 Jeopar dy Clause of the Fifth Amendment, made applicable to the states th rough 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 ad equate remedy at law and will not suffer irreparable injury if denied equitable relief." Id. at 43-44. The district court concluded that Appe llants had not exhausted their state remedies and that they would not suffer irreparable damage if the state action was not enjoined becau se 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

21024 ecstasy pills. Shortly thereafte r, North Carolina assessed taxes for possession of the drugs, includi ng 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 i ndicted 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 vol untarily stayed Appellants' prosecution until January 2002 to allow Appe llants adequate time to raise their contentions before the district court, and we issued a stay of the district court's order pending the out come 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 decliningto reach Appellants' Fifth Amendment claims under the Double Jeopardy Clause. 4 We review the district court's decision to abstain under

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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 asse ssed $ 1,336.33 for the sale of 184 of these ecstasy p ills. Stork was additionally assessed $ 1,081.13 for the sale of another 140 ecstasy pills.

2 We refer to the Unauthorized Subs tances 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

3Younger 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 adjudicati ng 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 enfor ce 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 shouldabstain 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 s ubstantial progress in the federal proceeding; that (2) implicates impor tant, 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).

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of life or limb." U.S. Const. ame nd. 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 crimin al prosecution for the same offense, regardless of the result of th e 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).

4All three of the ci rcumstances identified in the Middlesexinquiry are present here. First, Appellants in stituted 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 crim inal justice system" is an "important state interest[ ]"). Third, as is discussed below, infra at 12-17, Appellants have an adequate opport unity 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 necessaryfor protection of constitutional rights, courts of the United States have power to enjoin state officers from ins tituting 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 hi s 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.

5117, 123-24 (1975) (holding that federal equitable intervention in astate 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 wher e "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 ha s "an `opportunity to raise and have timely decided by a competent state tribunal the federal issuesinvolved' 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 fo r 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 pendi ng state action, exhaustion of state appellate remedies "unless [the claimant] can bring himself within one of the ex ceptions 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 th e courts of North Carolina will "not afford" them "adequate protection." Younger , 401 U.S. at 44. They concede that they have pretrial av enues in which they can raise their double jeopardy claims in state court, but they argue that because theNorth Carolina Supreme Court has already decided that North Carolina's pre-1995 amendment drug tax 5 is not a criminal penalty, see

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5 Because the General Assembly of North Carolina has amended the drug tax law several times since the courts in State v. Ballenger , 481

6State 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, dem onstrates that North Carolina will violate their federal constitutional rights and, thus, will not afford them adequate protection. As di scussed below, we conclude that because neither the Fourth Circu it 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 crim inal punishment such that an assessment of the drug tax, after a criminal penalty had already beenimposed, violated the Double Jeopardy Clause by imposing an unconstitutional second punishment. Id. at 783. Montana characterized its law as civil, but the Court determ ined 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 amendm ents 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 fede ral bankruptcy proceeding and went to the Supreme Court on direct review from the Ninth Circuit Court of Appeals, id. at 773-75.

7In 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 amendm ent 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-eighthours 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 enforcedonly 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

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7 Although we did address in Lynn whether North Carolina's pre-1995 amendment drug tax was a criminal punishment under Kurth Ranch , as

8In 1995, 1997, and again in 1998, before North Carolina assessed the drug tax on Appellants, the Gene ral 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 payableupon 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 deal er 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 byAn 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, su ch as mash and other illicit beverages. See N.C. Gen. Stat. §§ 105-113.106, -113.107 (1996), amended byAn 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 a bolished the special penalty and interest section and replaced it withthe general interest and penalty provisions applicable to all taxes pa id 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 byAn Act to Amend the Excise Tax on Controlle d Substances, N.C. Sess. Laws 1998-218 (1998). As part of the 1998 amendments, the General Assembly expressly stated:

Whereas, the intent of the Gene ral 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 subseque nt 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 safeguard s that attach to criminal proceedings).

9this 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 Asse mbly 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 amende d drug tax, which is at issue in this case, because both cases involved tax assessments before 1995. 8 In fact, no court 9 has considered whether North Carolina's postamendments drug tax provides the "the clearest proof" of punitive purpose or effect necessary to overri de the General Assembly's intent

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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-ame ndments drug tax. The courts inthese 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 Ballengerand 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 thesame, 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).

10to create a civil law and transf orm 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 civ il 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-

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10 Under Hudson , to determine whether a sanc tion is a civil or criminal penalty, a court must (1) "ask whether the legislature `in establishing thepenalizing 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 "`consider ed 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 tran sform 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 app ear 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 inte rest). 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-s ixth of the assessed amount. Likewise, in the instant case, Appellant s would have been assessed approximately $48,400 for their 1208 ecstasy pills under North Carolina's pre11ply put, an assertion that the North Carolina courts will likely decide a constitutional issue in a way contra ry to what Appellants believe the Constitution mandates is not a suffici ent 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 becau se 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, Appellant s 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 Youngerabstention 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 "acolorable 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 factonly 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 assessedunder the pre-1995 amendment drug tax. Moreover, the postamendments drug tax is not conditione d on a criminal offense, and payment of the tax cannot be used to criminally prosecute the taxpayer.

12 We have acknowledged, albeit in th e 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).

12In 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 JeopardyClause. We did not hold that an allegation of a double jeopardy violation automatically precludes Youngerabstention. Rather, after detailing the well-settled double jeopar dy 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 constitutiona l 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 thei r 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 prelimin ary 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 ha s never been held that jeopardy attaches as of the making or deciding of pretrial motions."), and

13Appellants 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) (denyingconsideration of a writ of certiorari for a claim based on double jeopardy due to a lack of "irrepara ble 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 su ffer 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 crimin al punishments, they must prove:

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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 irreparabl e 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 singlecriminal 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 je opardy violation based upon multiple punishments). As is set forth below, there are numerous, significant impediments to Appellants' ab ility to make this showing.

Initially, it is arguable whethe r 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 punitiv e and, therefore, were not criminal penalties for purpos es 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 generallyLisa 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 fede ral 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.

15Similarly, 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 specifi cally 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 im pose 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 aut horizes 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 asingle 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 th is Article may in any mannerprovide 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 asse ssment in a single proceeding. 14 In

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14 The Due Process Clause also assures that what punishment is imposed has prior legislative approval. See Pacific Mut. Life Ins. Co. v.

16sum, 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 allegeddouble jeopardy violation is far from clear, immediate, or irreparable,the important Younger policy of allowing the State to pursue itsprosecution 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 federa l 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 substantia l and immediate danger of irreparable constitutional loss warranti ng 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 fo r the state court. The essence of Younger is comity — state courts ar e 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).

17absence 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 (3ded. 2000). "Minimal respect for the state processes, of course, precludes any presumption that the stat e 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 thatthe district court did not abuse its discretion in abstaining from adjudicating Appellants' double jeopardy claim.

AFFIRMED

18