PUBLISH

UNITED STATES COURT OF APPEALS

Filed 1/31/96 TENTH CIRCUIT

 

UNITED STATES OF AMERICA, )

 )

Plaintiff-Appellee, ) 

 )

v. ) No. 95-2162

 )

DANIEL CURTIS GERMAN, )

 )

Defendant-Appellant. ) 

 

Appeal from the United States District Court

for the District of New Mexico

(D.C. No. CR-95-108-HB)

 

Submitted on the briefs:

John J. Kelly, United States Attorney, and Kelly H. Burnham,

Assistant United States Attorney, Las Cruces, New Mexico, for

Plaintiff-Appellee.

Joseph (SIB) Abraham, Jr., El Paso, Texas, for Defendant-Appellant.

 

Before KELLY and BARRETT, Circuit Judges, and O'CONNOR, Senior

District Judge.*

 

O'CONNOR, Senior District Judge.

 

* The Honorable Earl E. O'Connor, Senior United States District

Judge for the District of Kansas, sitting by designation. 

 

The defendant, Daniel Curtis German, was indicted for

possession with intent to distribute more than 100 kilograms of

marijuana, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(B). He

appeals from the district court's order denying his motion to
 

1After examining the briefs and the appellate record, the

panel has determined unanimously that oral argument would not

materially assist the determination of this appeal. See Fed.

R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

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dismiss the indictment on double jeopardy grounds. We find that we

have jurisdiction of this appeal and affirm. 1

I. Background

The relevant facts are not in dispute. On February 11, 1995,

German was arrested for transporting over 700 pounds of marijuana

in the truck he was driving. At the time of his arrest, a Drug

Enforcement Administration ("DEA") agent seized the truck and gave

German a DEA notice entitled "Notice of Seizure of a Conveyance for

a Drug-Related Offense." The notice advised German that the truck

was seized because it was used to transport drugs and to facilitate

drug trafficking, and was subject to forfeiture pursuant to 21

U.S.C. § 881(a)(4). The notice also informed defendant that he

would receive a separate notice providing further details of the

seizure and his available rights at a later date. In addition, the

notice stated: 

Upon the filing of a claim and the posting of a cost

bond, the merits of the claim and the determination of

forfeiture will be conducted through a judicial

proceeding pursuant to Title 21, U.S.C. Section 881;

Title 19, U.S.C., Sections 1602-1608; and Title 21,

C.F.R. Sections 1316.17-1316.81 and Sections 1316.90-

1316.99. 

Defendant signed the notice acknowledging receipt of the same. 

The DEA subsequently sent German another document relating to

the truck entitled "Notice of Seizure," dated March 20, 1995. On
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March 25, 1995, German signed a Domestic Return Receipt

acknowledging receipt of the Notice of Seizure. The prefatory

language in the Notice of Seizure provided in part: 

You may petition the DEA for the return of the property

or your interest in it (remission or mitigation), and/or

you may contest the seizure and forfeiture of the

property in court. Also, under certain circumstances,

you may petition for the expedited release of the

property. You should review the following procedures

very carefully.

Notice of Seizure (emphasis in original). With regard to the

specific procedure for contesting the forfeiture of the seized

property, the Notice of Seizure explained that:

In addition to or in lieu of petitioning for remission or

mitigation, you may contest the forfeiture of the seized

property in UNITED STATES DISTRICT COURT. To do so, you

must file a claim of ownership and cost bond with the

DEA. . . . If you are indigent (needy or poor) you may

not have to post the bond. To request a waiver of the

bond, you must fully disclose your finances in a signed

statement called a "Declaration in Support of Request to

Proceed In Forma Pauperis" along with a claim of

ownership of the property. . . . The claim of ownership,

with either bond or the "Declaration in Support of

Request to Proceed In Forma Pauperis" must be filed

within twenty (20) days of the first date of publication

of the notice of seizure in the edition of USA Today

newspaper referenced above.

Id. (emphasis in original). The Notice of Seizure stated that the

date of first publication of the notice of seizure would be

March 29, 1995. Thus, in order for defendant to timely file the

papers necessary to properly contest the forfeiture of the truck,

he needed to file a claim of ownership, along with a cost bond or

an in forma pauperis declaration, by April 18, 1995. 

On April 26, 1995, the DEA received from defendant an

"Affidavit in Forma Pauperis." The next day, the DEA sent German's
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attorney a letter, advising that the DEA was returning the in forma

pauperis affidavit because it had been filed after the April 18th

deadline date. The letter further advised that, as a matter of

discretion, the DEA would allow German twenty days from receipt of

the letter to file a petition for an administrative ruling. 

Within the twenty days provided by the DEA, German submitted

a petition for remission and/or mitigation consisting of a letter

signed under oath dated May 15, 1995, and the affidavit in forma

pauperis he had previously filed. German's truck was forfeited and

sold at auction on July 20, 1995.

On appeal, German contends that the forfeiture of the truck

constituted punishment within the meaning of the double jeopardy

clause, and the government's current prosecution against him for

violation of 21 U.S.C. § 841(a)(1) subjects him to double jeopardy.

II. Discussion

As an initial matter, we first address the government's

argument that the court lacks jurisdiction over this appeal. Our

authority to hear the appeal stems from Abney v. United States, 431

U.S. 651 (1977). There, the Supreme Court held that appellate

courts have jurisdiction to entertain an appeal from a pretrial

order denying dismissal sought on double jeopardy grounds. Id. at

663. The Court reasoned that, as the double jeopardy clause

forbids a second trial, such a denial was within the "collateral

order" exception to the final judgment rule of appellate

jurisdiction. Id. Accordingly, we have jurisdiction to hear
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German's interlocutory appeal of the pretrial order denying his

motion to dismiss the superseding indictment on double jeopardy

grounds.

A district court's denial of a motion to dismiss an indictment

on double jeopardy grounds is reviewed de novo. United States v.

Hudson, 14 F.3d 536, 539 (10th Cir. 1994). The underlying factual

findings of the district court are reviewed for clear error.

O'Connor v. R.F. Lafferty & Co., Inc., 965 F.2d 893, 901 (10th Cir.

1992). 

The double jeopardy clause of the Fifth Amendment to the

United States Constitution prohibits successive prosecution or

multiple punishment for "the same offense." Witte v. United

States, ___U.S.___, 115 S.Ct. 2199, 2202 (1995). Significantly,

the language of the clause protects against more than the actual

imposition of two punishments for the same offense; by its terms,

it protects a criminal defendant from being twice put in jeopardy

for such punishment. Id. at 2204. 

The Fifth Amendment's guarantee against double jeopardy

protects against three types of abuses: (1) a second prosecution

for the same offense after an acquittal; (2) a second prosecution

for the same offense after a conviction, and (3) multiple

punishments for the same offense. United States v. Halper , 490

U.S. 435, 440 (1989); see also United States v. McDermott, 64 F.3d

1448, 1454 (10th Cir. 1995), petition for cert. filed, (U.S.

Nov. 6, 1995) (No. 95-6653). Multiple punishments are permissible

if imposed in the same proceeding, but are impermissible if imposed
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in separate proceedings. United States v. Halper, 490 U.S. at 450-

451. 

The district court, in denying the defendant's motion to

dismiss the superseding indictment, stated as follows:

Several courts have held that a defendant who fails

to judicially contest a civil forfeiture by filing a

claim of ownership and bond never becomes a party to the

forfeiture proceeding and thus is neither punished nor

placed in jeopardy. See e.g., United States v. Torres,

28 F.3d 1463 (7th Cir.)(no double jeopardy without former

jeopardy in uncontested forfeiture action because

defendant did not become a party in forfeiture

proceeding); cert. denied, 115 S. Ct. 669 (1994); United

States v. Arreola-Ramos, __F.3d__, 1995 WL 428059 (5th

Cir. 1995) (same); United States v. Nakamoto, 876 F.

Supp. 235 (D. Haw. 1995); United States v. Walsh, 873 F.

Supp. 334 (D. Ariz. 1994); United States v. Kemmish, 869

F. Supp. 803 (S.D. Cal. 1994). 

In the instant case, Defendant

did not judicially contest the forfeiture of the semi-truck by

filing a claim of ownership and bond. Instead, Defendant elected

to pursue only his administrative remedy by filing a Petition for

Remission. In an analogous case, Orallo v. United States of

America, the court stated:

[A] petitioner seeking remission or mitigation

of a forfeiture does not necessarily contest

the legitimacy of a forfeiture. In fact,

under remission/mitigation procedures,

forfeitability is presumed and the petitioner

seeks relief from forfeiture on fairness

grounds. 

* * * * * *

A petition for remission or mitigation does

not resolve the issue of personal culpability,

in fact, forfeiture is presumed. Jeopardy can

only attach in a proceeding involving a

determination of guilt.

__ F. Supp. __, 1995 WL 319489 at *3 (D. Haw. May 23,

1995)(internal citations omitted); see also, United

States v. Crowell, Cr. 90-464 PHX RCB (D. Ariz. April 28,

1995)(Double Jeopardy Clause does not relieve defendants

from the consequences of their choice to pursue a course

which had effect of avoiding any judicial finding of

personal culpability; thus jeopardy did not attach.)
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Like the defendant in Orallo, Defendant's

culpability was never adjudicated in the forfeiture

proceeding. Therefore, Defendant was never placed in

jeopardy or "punished" in any constitutional sense

because he was never a party in any proceeding designed

to adjudicate his personal culpability. "A person who

avoids an adjudication of his or her guilt or innocence

cannot later claim double jeopardy when the government

seeks to obtain such an adjudication in a later

proceeding." Kemmish, 869 F. Supp. at 805. Accordingly,

Defendant's Motion to Dismiss the Superseding Indictment

is denied.

United States v. German, No. 95-108, slip op. at 3-5 (D. N.M.

1995).

 In sum, the district court held that German's culpability was

never adjudicated because he did not judicially contest the

forfeiture by filing a claim of ownership and bond in district

court, but instead elected to pursue only his administrative remedy

by filing a Petition for Remission. Because defendant's

culpability was never adjudicated, he was never placed in jeopardy

or "punished" for double jeopardy purposes. 

Several federal courts have addressed this issue. In United

States v. Torres, 28 F.3d 1463 (7th Cir.), cert. denied, 115 S. Ct.

669 (1994), Torres, a narcotics trafficker, was arrested in a sting

operation during the commission of a drug transaction. He was

prosecuted, convicted, and sentenced to imprisonment for various

drug offenses. On the date of his arrest, federal agents seized

$60,000 he had presented to undercover agents for the purchase of

cocaine. Prosecutors thereafter instituted forfeiture proceedings

pursuant to 21 U.S.C. § 881(a)(6), on the grounds that the money

was used in an illegal drug transaction. Torres received notice
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inviting him to make a claim in the civil forfeiture proceeding.

He, however, failed to make any claim. Torres later sought to have

the administrative forfeiture of the $60,000 adjudicated prior

jeopardy barring his criminal conviction and imprisonment. In

rejecting Torres' request, the Seventh Circuit reasoned:

[P]arallel administrative and criminal actions do not

necessarily violate the double jeopardy clause. Torres

received notice inviting him to make a claim in the civil

forfeiture proceeding. He did not. As a result, he did

not become a party to the forfeiture. There was no

trial; the $60,000 was forfeited without opposition, and

jeopardy did not attach. You can't have double jeopardy

without a former jeopardy. Serfass v. United States, 420

U.S. 377, 389, 95 S. Ct. 1055, 1063, 43 L.Ed.2d 265

(1975). As a non-party, Torres was not at risk in the

forfeiture proceeding, and "[w]ithout risk of a

determination of guilt, jeopardy does not attach, and

neither an appeal nor further prosecution constitutes

double jeopardy." Id. at 391-92, 95 S.Ct. at 1064. 

Torres, 28 F.3d at 1465. 

The Torres court buttressed its decision that jeopardy did not

attach as a result of the forfeiture of the drug money on the fact

that Torres failed to make a claim in the civil forfeiture

proceeding and thus was a non-party. The Third and Fifth Circuits

have likewise held that where a defendant does not contest a civil

forfeiture, jeopardy does not attach and, therefore, the

protections of the double jeopardy clause are not invoked. See

United States v. Baird, 63 F.3d 1213 (3rd Cir. 1995), petition for

cert. filed, 64 USLW 3318 (Oct. 17, 1995) (No. 95-630); United

States v. Arreola-Ramos, 60 F.3d 188 (5th Cir. 1995). 

German does not undertake to distinguish Torres, Baird, or

Arreola-Ramos. Instead, he urges this court to follow the few
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district court decisions that have deemed a party's failure to

contest forfeiture irrelevant for purposes of raising a double

jeopardy argument. Specifically, he directs our attention to:

United States v. Aguilar, 886 F. Supp. 740 (E.D. Wash. 1994)

(McDonald, J.) ("It is irrelevant whether, as the government

claims, Aguilar failed to contest the forfeiture."); United States

v. Heitzman, 886 F. Supp. 737 (E.D. Wash. 1994) (McDonald, J.)

(civil administrative forfeiture provided initial jeopardy even

though defendant failed to file a claim in the administrative

forfeiture proceeding); and United States v. Ailemen, 893 F. Supp.

888 (N.D. Cal. 1995) (court held that government imposed a

punishment on the defendant by forfeiting defendant's money, even

though defendant failed to make a formal appearance in the

forfeiture proceeding).

Any persuasive authority that Aguilar and Heitzman may have

had is completely undercut by the more recent case of United States

v. Bradford , 886 F. Supp. 744 (E.D. Wa. 1995), in which Judge

McDonald took an approach directly opposite to that which he had

articulated in Aguilar and Heitzman. ("[A] defendant who elects

not to contest the forfeiture of his property . . . cannot avoid

the adjudication of his personal culpability at one stage, then

suddenly assert that the forfeiture of these items has exposed him

to jeopardy when such a position becomes advantageous." Id. at

748.) As explanation for his change in stance, Judge McDonald

noted that at the time of his decisions in Aguilar and Heitzman,
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the court was without the benefit of the more recently decided

cases from other jurisdictions. Id.

We view those cases relied upon by defendant as contrary to

the better rule, and against the weight of authority. This court

chooses to follow the reasoning of the majority view as succinctly

expressed by our sister circuits in Torres and Arreola-Ramos. 

Under the facts of the instant case, we hold that jeopardy did

not attach: German was never placed in jeopardy or "punished" in

any constitutional sense because he was never a party to any

proceeding designed to adjudicate his personal culpability. His

subsequent criminal prosecution is not barred by double jeopardy.

AFFIRMED.