IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-10967

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OMAR ARREOLA-RAMOS,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

(July 20, 1995)

Before SMITH, WIENER, and DEMOSS, Circuit Judges:

WIENER, Circuit Judge:

Defendant-Appellant Omar Arreola-Ramos (Arreola) faces a

criminal drug trial. With this interlocutory appeal, he seeks to

bar that trial on double jeopardy grounds. Although a non-party to

a civil forfeiture proceeding, Arreola here asserts that the

forfeited funds (Funds) were his; that he received no notice of the

forfeiture; that the forfeiture of the Funds violates his due

process rights; and that forfeiture of the Funds in his absence

therefore constitutes former jeopardy. As a result, he argues, his
 

1 21 U.S.C. § 846 (West 1984 & Supp. 1995)(conspiracy to

possess cocaine); 18 U.S.C. § 2 (West 1969 & Supp. 1995)(attempt to

violate federal law).

 

2 See 21 U.S.C. § 881(a)(6) (West 1984 & Supp. 1995). This

statute incorporates the Tariff Act of 1930. See 21 U.S.C § 881(d).

The Tariff Act permits "Administrative Forfeitures" of property

valued at $500,000 or less. See 19 U.S.C. §§ 1607-1609 (West 1980

& Supp. 1995); 21 C.F.R. §§ 1316.75-77.

2

pending indictment -- arising as it does out of the same alleged

criminal activity -- violates double jeopardy. We conclude that,

as Arreola never made a claim in the civil forfeiture proceeding

and thus never became a party, that forfeiture neither placed him

in jeopardy nor punished him. Accordingly, we affirm the district

court's denial of Arreola's motion to dismiss and remand to the

district court for further proceedings. 

I.

FACTS AND PROCEEDINGS

Arreola's story begins on Polk Street in Amarillo Texas, where

he lives with his mother, Mary Apodaca. On a June evening in 1994,

while investigating suspected drug activity, Amarillo law

enforcement officials searched the Apodaca/Arreola residence and

seized the Funds, approximately $11,408.00 in cash. This event

precipitated two similar but independent judicial proceedings, one

civil and the other criminal. First, Arreola and four others were

indicted on federal drug charges.1 Second, after the indictment

but before the trial, the government initiated in rem civil

forfeiture proceedings against the Funds, alleging that they were

used in or acquired as a result of a drug-related offense.2 

Civil forfeiture procedure requires the government to
 

3 19 U.S.C. § 1607(a).

 

4 19 U.S.C. § 1608. Strange as it may seem, a claimant has 20

days from the first publication to make a claim. As a practical

matter, this means that the time for appearance will expire shortly

after the second publication and conceivably before the third.

 

5 Id.; see also 21 C.F.R. § 1316.76(b). To secure the

forfeiture, in a civil forfeiture proceeding, the government must

establish probable cause to believe that the funds were used or

acquired for illegal drug trafficking. See Vance v. United States,

676 F.2d 183, 187-88 (5th Cir. 1982).

 

6 19 U.S.C. § 1609.

 

7 Id.

3

(1) publish, once a week for at least three successive weeks in a

newspaper of general circulation, notice of its intention to

forfeit, and (2) send "[w]ritten notice of seizure together with

information on the applicable procedures . . . to each party who

appears to have an interest in the seized article."3 

A claimant then has 20 days from the first publication in

which to file a claim and a cost bond of not less than $250.00.4

The filing of the claim and the bond stops the administrative

process and requires the seizing agency to turn over the matter to

the United States Attorney for the commencement of a judicial

forfeiture proceeding.5 A claimant's failure to follow these

procedures results automatically in a declaration of forfeiture by

the seizing agency and the vesting of title to the forfeited

property in the United States.6 This declaration has the same

effect as a final decree and order of forfeiture entered in a

judicial proceeding.7

In this case, the notice of the forfeiture appeared for three
4

consecutive weeks in USA Today. Additionally, the government sent

the "Notice of Seizure" (Notice) via certified mail addressed to

Arreola at his civil residence. His mother received the Notice and

signed the return receipt. At the time, however, Arreola was

incarcerated: Shortly after the seizure of the Funds, he had been

arrested on drug charges stemming from the same drug enforcement

activity. 

The 20 day period for contesting forfeiture expired without

Arreola's having entered an appearance or contested the forfeiture.

Indeed, no one timely entered an appearance or contested the

forfeiture. Thus, on September 2, 1994, title to the Funds vested

in the United States government.

Some six weeks later, Arreola filed a motion to dismiss the

indictment against him. In his motion, he argued that, in light of

the recent forfeiture, a subsequent trial arising out of the same

alleged criminal activity would violate double jeopardy. 

At this point in the narrative, we pause to parse Arreola's

motion. He filed but one, a motion to dismiss for double jeopardy;

however, his argument comprises three parts. In the first he

contends that former jeopardy attached in the civil forfeiture

proceeding. In the second he argues that, as a result of that

former jeopardy, his pending criminal trial, if held, would violate

double jeopardy. But there is one catch: Arreola was not a party

to the civil forfeiture. Thus, in the third part of his argument,

in which he complains of a due process violation, Arreola is

attempting retroactively to bootstrap himself into the civil
5

forfeiture proceeding and, more importantly, into its jeopardy

effects. 

Breaking this third, due process part down further, we

perceive that Arreola's argument runs something like this: (1) the

government arrested me, put me in jail, and seized my money; (2)

knowing I was in jail, the government instituted forfeiture

proceedings against my money, but sent notice only to my civil

residence; and (3) this constitutes inadequate notice and violates

my due process rights, as I was unaware of and unable to contest

the forfeiture. Arreola then jumbles all three parts together and,

in a transparent bit of legal alchemy, attempts to transmute the

"lead" of a civil forfeiture proceeding -- in which he was not even

a party -- into the "gold" of former jeopardy. Essentially,

Arreola asked the district court (and now asks us) to overlook his

absence from the forfeiture proceeding and to hold -- not merely

"in spite of" his absence but indeed "because of" his absence --

that former jeopardy attached in the forfeiture proceeding.

Despite its ingenuity, this is nothing more than a garden variety

flawed syllogism.

The district court denied Arreola's motion: As Arreola was

not a party to the civil forfeiture, reasoned the court, he was not

placed in jeopardy by those proceedings. The district court

nevertheless ruled that Arreola's motion to dismiss was not

frivolous, granted Arreola leave to file an interlocutory appeal,

and ordered a continuance of his criminal trial setting until we

shall have ruled on Arreola's interlocutory appeal.
 

8 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977).

 

9 Id. at 663, 97 S.Ct. at 2042.

 

10 See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541,

69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

 

11 Abney, 431 U.S. at 663, 97 S.Ct. at 2042.

 

12 Id. at 662-63, 97 S.Ct. at 2041-42 (claim for dismissal on

ground of insufficiency of indictment not within interlocutory

appeal).

6

II.

ANALYSIS

A. JURISDICTION

Our authority to hear this appeal lies in Abney v. United

States.

8 There, the Supreme Court held that appellate courts have

jurisdiction to entertain an appeal from a pre-trial order denying

dismissal sought on double jeopardy grounds.9 The Court reasoned

that, as the Double Jeopardy Clause forbids a second trial, such a

denial was within the "collateral order" exception10 to the final

judgment rule of appellate jurisdiction.11 The interlocutory appeal

that Abney permits is, however, limited to double jeopardy claims

and does not include other challenges.12 

The scope of the instant interlocutory appeal is thus quite

narrow: We have jurisdiction to review only the district court's

denial of Arreola's motion to dismiss to the extent it implicates

double jeopardy. In an Abney appeal, we cannot review other

assertions of error, such as a due process violation in a separate

and independent proceeding. Consequently, we cannot consider

Arreola's due process claim regarding notice in the civil
 

13 See Scarabin v. Drug Enforcement Admin., 919 F.2d 337, 338

(5th Cir. 1990)(federal court review of agency's summary forfeiture

proceeding "is limited to determining whether the agency followed

the proper procedural safeguards when [DEA] declared [defendant's]

property summarily forfeited"); see also United States v. Giraldo,

45 F.3d 509, 511 (1st Cir. 1995)(district courts have jurisdiction

to entertain collateral due process attacks on administrative

forfeitures, which may be pursued in a civil action under federal

question jurisdiction); United States v. Woodall, 12 F.3d 791, 793

(8th Cir. 1993)("the federal courts have universally upheld

jurisdiction to review whether an administrative forfeiture

satisfied statutory and due process requirements."). 

 

14 See, e.g., United States v. Clagett, 3 F.3d 1355, 1356-57

(9th Cir. 1993)(fact that funds seized during claimants arrest had

already been administratively forfeited would not preclude Rule

41(a) motion for return of funds, if notice of pending forfeiture

was inadequate, so that forfeiture proceeding was never available

to claimant in any meaningful sense).

 

15 U.S. Const. amend. V. 

7

forfeiture case. Such claims may be brought in district court,

either as a civil action collaterally attacking the summary

forfeiture judgment13 or in a criminal trial as a Rule 41(e) motion

to return seized property.14 As neither type of proceeding is

before us in this interlocutory appeal of the district court's

refusal to dismiss Arreola's criminal prosecution, we simply do not

have jurisdiction over those issues. Arreola's claim of denial of

due process in the civil forfeiture proceeding is thus beyond the

scope of this appeal, and we neither express nor imply an opinion

on the merits of such a claim. Accordingly, we review only his

double jeopardy claim in the context of his dismissal motion.

C. DOUBLE JEOPARDY

"No person shall . . . be subject for the same offense to be

twice put in jeopardy of life or limb . . . ."15 Double jeopardy
 

16 United States v. Gonzales, 40 F.3d 735, 737 (5th Cir. 1994),

cert. denied, -- U.S.--, 115 S.Ct. 1716, 131 L.Ed.2d 575 (1995);

see also United States v. Botello, 991 F.2d 189, 192 (5th Cir.

1993)("Standard of review for district court's denial of motion to

dismiss on grounds of double jeopardy is de novo."), cert. denied,

-- U.S. --, 114 S.Ct. 886, 127 L.Ed.2d 80 (1994).

 

17 United States v. Cruce, 21 F.3d 70, 74 (5th Cir.

1994)(citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct.

2072, 2076, 23 L.Ed.2d 656 (1969).

 

18 Regardless of the sequence of the civil and criminal

proceedings, the Double Jeopardy Clause will bar the second

proceeding if both the first and the second sanctions are deemed

punishment. United States v. Sanchez-Escareno, 950 F.2d 193, 200

(5th Cir. 1991), cert. denied, -- U.S. --, 113 S.Ct. 123, 121

L.Ed.2d 78 (1992).

 

19 See United States v. Tilley, 18 F.3d 295, 298-99 (5th Cir.

1994).

8

raises a legal issue of constitutional dimensions; we review de

novo the denial of a motion to dismiss on double jeopardy grounds.16

The Supreme Court has interpreted the Double Jeopardy Clause to

shield citizens from both multiple prosecutions and multiple

punishments for the same offense.17 Of course, if the pending

criminal trial in this case were to result in a conviction, Arreola

would be subjected to punishment. And it follows that if the prior

civil forfeiture proceeding, which was predicated on the same drug

trafficking offenses as charged in the indictment, constituted a

"punishment," the Double Jeopardy Clause would bar the pending

criminal trial.18

1. Was The Forfeiture "Punishment"?

Only when a civil forfeiture constitutes "punishment" can

jeopardy attach.19 To determine whether a civil forfeiture

constitutes punishment for purposes of double jeopardy, we must
 

20 Tilley, 18 F.3d at 298-99 (citing Halper, 490 U.S. at 448-

49, 109 S.Ct. at 1902).

9

ascertain whether, "in a particular case, the amount of the

proceeds forfeited was so great that it bore no rational relation

to the costs incurred by the government and society resulting from

the defendant's criminal conduct."20 Thus, to evaluate whether, "in

this particular case" the civil forfeiture was a "punishment" to

the person asserting double jeopardy, we must, as a threshold

issue, determine whose property the government acquired in the

forfeiture of the Funds. For it is axiomatic that there can be no

punishment if the property forfeited did not belong to the person

claiming jeopardy. 

2. Who Was Punished?

In any appeal, our factual consideration is limited to the

district court record and any relevant final judgments. When we

examine the record presently before us, we conclude that no one

owned the Funds prior to the vesting of title thereto in the

government. In his brief, Arreola says that he was listed on the

"Declaration of Forfeiture" (Declaration) as the owner of the

Funds. In fact, though, the Declaration identifies "SAME AS ABOVE"

as the owner of the money. It is unclear to whom or what this

designation refers; however, one thing is clear: Nowhere "above"

that entry does Arreola's name appear. Rather, his name appears

for the first time "below" that entry, identifying him as the

individual from whom the property was seized. 

We are here constrained by both the pre-trial record in the
 

21 United States v. Torres, 28 F.3d 1463, 1465 (7th Cir.)("As

a non-party, [defendant] was not at risk in the forfeiture

proceeding, and '[w]ithout risk of determination of guilt, jeopardy

does not attach, and neither an appeal nor further prosecution

constitutes double jeopardy.'"), cert. denied, -- U.S. --, 115

S.Ct. 669, 130 L.Ed.2d 603, (1994).

 

22 Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055,

1063, 43 L.Ed.3d 265 (1975)("The [Supreme] Court has consistently

adhered to the view that jeopardy does not attach, and the

constitutional prohibition can have no application, until a

defendant is 'put to trial before the trier of facts, whether the

trier be a judge or jury.'"); see also Torres, 28 F.3d at 1465

(holding that jeopardy did not attach to non-party to summary

forfeiture and thus there was no risk of double jeopardy in

subsequent criminal trial).

10

criminal action and the final judgment in the civil forfeiture

proceeding. When one or both of these conflict with Arreola's

assertions on appeal, we are bound by the former. And, like the

Declaration, the summary forfeiture judgment contradicts Arreola's

assertions of ownership. Moreover, only property that is unclaimed

or "unowned" may be summarily forfeited. Thus, albeit a legal

fiction, the very issuance of a summary forfeiture establishes that

no one owned the Funds. Consequently, their forfeiture punished no

one.

3. No Punishment, No Jeopardy.

Our analysis leads us inexorably to the conclusion that a

summary forfeiture, by definition, can never serve as a jeopardy

component of a double jeopardy motion. In summary forfeiture

proceedings, there is no trial, there are no parties, and no one is

punished.

21 Absent a trial, a party, and a punishment, jeopardy can

never attach.22 As Arreola did not appear and contest the

forfeiture, he was never in jeopardy. Without former jeopardy,
 

23 Serfass, 420 U.S. at 389, 95 S.Ct. at 1063; see also Torres,

28 F.3d at 1465 ("You can't have double jeopardy without a former

jeopardy.").

 

24 United States v. Stricklin, 591 F.2d 1112, 1119 (5th Cir.

1979); see also United States v. Bryan, 677 F.Supp. 482, 483

(N.D.Tex. 1987)("[S]hould a court find before trial that there is

no double jeopardy, the court may later vacate its finding as the

evidence develops at trial, if the defendant renews his motion and

the evidence shows that there was, in fact, prior jeopardy.").

11

double jeopardy cannot arise.23 We agree with the district court:

As Arreola failed to establish former jeopardy, he necessarily

failed to establish even the possibility of double jeopardy. 

In closing we point out that even though we affirm the

district court's denial of Arreola's motion, that court may later

vacate its finding of no prior jeopardy, if Arreola should renew

his motion and the evidence should then show that there was in fact

jeopardy. The district court's pre-trial ruling considered

whether, based on the evidence then before the court, double

jeopardy appearedSQand concluded that it did not. In this Abney

appeal, we affirm the correctness of that ruling, and that narrow

ruling alone. Neither the district court's pre-trial decision nor

ours on this appeal is binding as res judicata, law of the case,

collateral estoppel, or any other theoretical bar to the double

jeopardy issue in this case.24

Accordingly, the district court's denial of Arreola's motion

to dismiss is affirmed and the case is remanded for further

proceedings consistent herewith. 

AFFIRMED and REMANDED.