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The Honorable Rodney S. Webb, Chief Judge, United States

District Court for the District of North Dakota.

___________

No. 95-1568

___________

United States of America, *

 * 

Appellee, * Appeal from the United States

 * District Court for the 

v. * District of North Dakota.

 * 

Dean J. Smith, *

 * 

Appellant. * ___________

 Submitted: October 17, 1995

 Filed: January 31, 1996 ___________

Before WOLLMAN, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD,

Circuit Judges. ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Dean J. Smith appeals from his conviction for distributing

methamphetamine, arguing that the criminal proceeding against him

subjected him to double jeopardy in violation of the Fifth

Amendment to the United States Constitution. We affirm the

district court.1

I.

On September 21, 1994, the United States filed an indictment

charging Mr. Smith with two counts of distributing methamphetamine,

the first of which laid the relevant events at 341 20th Street

North, Fargo, North Dakota, and the second of which laid them at
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102 24th Street South, also in Fargo. Two days later the United

States initiated a civil forfeiture action against Mr. Smith's

house located at 117 4th Avenue East, West Fargo, North Dakota,

alleging that Mr. Smith had used the house to facilitate illegal

drug transactions in violation of 21 U.S.C. § 881(a)(7). An

affidavit attached to the complaint stated, inter alia, that Mr.

Smith confessed to police that he had repeatedly received drugs at

that address. The affidavit also mentioned the two incidents

alleged in the indictment, though no connection between them and

the house was drawn.

Mr. Smith pleaded guilty to count one of the indictment. He

also stipulated to a settlement of the forfeiture. Mr. Smith later

moved to dismiss the indictment on the grounds that the criminal

prosecution violated his right to be free from double jeopardy

because of the civil forfeiture proceeding. The district court

concluded that Mr. Smith's double jeopardy rights were not violated

and denied the motion.

In the discussion that follows, we assume, without deciding,

that jeopardy attached in the civil forfeiture proceeding before it

attached in the criminal matter, for otherwise Mr. Smith's double

jeopardy claim is not even colorable.

II.

The Fifth Amendment provides that no person shall "be subject

for the same offence to be twice put in jeopardy of life or limb."

U.S. Const. Amend. V. It appears to us, first of all, that the

criminal proceeding of which Mr. Smith complains was for different

conduct from that that provided the predicate for the forfeiture

proceeding, and thus it did not involve "the same offence" as that

proceeding. The methamphetamine sales for which Mr. Smith was

indicted appear to have occurred at locations away from the

forfeited property, and thus had no factual connection with the

forfeited property's facilitation, if any, of drug dealing.
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Because the civil penalties and criminal punishment were seemingly

not imposed for the same conduct in this case, it is not easy to

see how it presents a double jeopardy issue. See United States v.

Mathis, 980 F.2d 496, 497 (8th Cir. 1992). The government,

however, failed to argue this point below, and we are therefore

reluctant to base our decision on this ground.

III.

The Double Jeopardy Clause protects against efforts to impose

punishment for the same offense in two or more separate

proceedings; double jeopardy concerns are not implicated, however,

where multiple punishments are imposed for the same offense in a

single proceeding, so long as Congress intended that result. See

United States v. Halper, 490 U.S. 435, 450 (1989); Missouri v.

Hunter, 459 U.S. 359, 368-69 (1983). The government seemingly has

conceded in this case that the forfeiture amounts to a punishment,

and we feel, as we just indicated, foreclosed from considering

whether the two cases involve the same conduct; so the remaining

issue is whether the criminal and civil cases can be considered a

single procedural entity for double jeopardy purposes. The

government successfully argued in the district court that the civil

suit and the criminal case were properly considered to be the same

proceeding. Courts of appeals have taken differing views on this

matter, but before canvassing those cases, we review several recent

Supreme Court holdings that are of manifest relevance.

In United States v. Halper, supra, a medical doctor was

convicted and punished for filing false medical claims; the

government later sued him in a civil action and subjected him to a

$130,000 civil fine for a $585 fraud. The Supreme Court concluded

that such a disproportionate assessment could only be characterized

as deterrent or retributive rather than remedial, and was therefore

a punishment within the meaning of the Double Jeopardy Clause.

Halper, 490 U.S. at 448-49. Because the criminal penalty and the

civil judgment arose from the same conduct and were adjudicated
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through separate proceedings, Dr. Halper was deemed to have been

subjected to an unconstitutional double jeopardy. More recently,

the Court concluded in Dept. of Revenue of Montana v. Kurth Ranch,

114 S. Ct. 1937 (1994), that the assessment of a civil tax on the

possession of illegal drugs, levied months after initiation of a

criminal prosecution based on possessing those drugs, violated the

principle of double jeopardy. The Court found that such a tax

cannot be considered a civil remedial measure. It is a form of

punishment which "must be imposed during the first prosecution or

not at all." 114 S. Ct. at 1498.

Courts of appeals have disagreed as to whether a separate

civil forfeiture proceeding may be brought based on conduct that is

also the basis for a criminal prosecution. The Second and Eleventh

Circuits have concluded that concurrent civil and criminal

proceedings, based on the same facts, do not violate the Double

Jeopardy Clause when the separate proceedings take the form of a

"single, coordinated prosecution." United States v. One Single

Family Residence Located at 18755 North Bay Road, 13 F.3d 1493,

1499 (11th Cir. 1994); United States v. Millan, 2 F.3d 17, 20-21

(2d Cir. 1993), cert. denied, 114 S. Ct. 992 (1994). Millan noted

that the law does not prevent the government from seeking and

obtaining both the full civil penalty and the full range of

statutorily-authorized criminal penalties in the same proceeding,

and that "it is well established that Congress may impose multiple

punishments for a single crime without violating the Constitution's

double jeopardy restrictions." Millan, 2 F.3d at 20. The

defendants in Millan pointed out that the civil and criminal

actions were filed separately with their own docket numbers. "This

factor, however, is not dispositive in determining whether the

government is employing a single proceeding in its prosecution of

a defendant. Civil and criminal suits, by virtue of our federal

system of procedure, must be filed and docketed separately." Id.

Instead, the court must "examine the essence of the actions at hand

by determining when, how, and why the civil and criminal actions
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were initiated." Id. In Millan, warrants for the civil seizures

and criminal arrests were issued on the same day, by the same

judge, based on the same affidavit by a federal agent. The

parties' stipulation in the civil case involved not only properties

which were the subject of the civil suit, but properties named in

the criminal indictment which were under restraining order. The

civil complaint also incorporated the criminal indictment. The

defendants were aware of the criminal charges when they entered

into the civil stipulation. There was, in addition, no suggestion

that the government acted abusively by seeking a second punishment

after an unsatisfactory initial prosecution. 2 F.3d at 20-21. In

light of these circumstances, the Millan court concluded that the

civil and criminal actions were but different aspects of a single

prosecution. In One Single Family Residence, the Eleventh Circuit

closely followed the reasoning of Millan in approving concurrent

civil and criminal prosecutions. 13 F.3d at 1499.

By contrast, the Ninth Circuit has opined that a "single,

coordinated prosecution" violates the Double Jeopardy Clause.

United States v. $405,089.23, 33 F.3d 1210 (9th Cir. 1994), amended

on denial of reh'g en banc, 56 F.3d 41 (9th Cir. 1995), cert.

granted, 64 U.S.L.W. 3161 (U.S. Jan. 12, 1996) (No. 95-346). The

$405,089.23 court noted the position taken in Millan and One Single

Family Residence and concluded that it "contradicts controlling

Supreme Court precedent as well as common sense." 33 F.3d at 1216.

The court stated:

We fail to see how two separate actions, one civil and

one criminal, instituted at different times, tried at

different times before different factfinders, presided

over by different district judges, and resolved by

separate judgments, constitute the same "proceeding." A

forfeiture case and a criminal prosection would

constitute the same proceeding only if they were brought

in the same indictment and tried at the same time.

Id. (footnote omitted). The court asserted that the government

could have avoided the problem of parallel proceedings by bringing

a criminal forfeiture count in the criminal indictment. While
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seven judges of the Ninth Circuit dissented from the order

rejecting the suggestion for rehearing en banc, they appeared to be

concerned with the question of whether the forfeiture was a

punishment, not the issue of what constituted a single proceeding.

See 56 F.3d at 42-43. The Seventh Circuit has expressed similar

doubts about the propriety of the "single, coordinated prosecution"

theory. See United States v. Torres, 28 F.3d 1463, 1465 (7th

Cir.), cert. denied, 115 S. Ct. 669 (1994) (dictum). United States

v. Ursery, 59 F.3d 568 (6th Cir. 1995), cert. granted, 64 U.S.L.W.

3161 (U.S. Jan. 12, 1996) (No. 95-345), seemed sympathetic to the

reasoning in $405,089.23 but held that even under the rule in

Millan the government failed to prove a single, coordinated

prosecution because the two actions "were instituted four months

apart, presided over by different district judges, and resolved by

separate judgments." 59 F.3d at 575.

With respect, we are persuaded that the reasoning of

$405,089.23 elevates form over substance in its judgment that the

government can never seek, even concurrently, criminal and civil

penalties arising from the same conduct. It is a feature of our

system of justice that criminal and civil matters are adjudicated

in separate cases, and while separate actions will lead to separate

trials before different factfinders at different times, this

commonplace observation about the administration of justice in our

country should not force federal prosecutors into a difficult

choice of whether to seek solely criminal penalties or solely civil

penalties. It does not appear that Congress intended any such a

dilemma in providing for both criminal and civil penalties for

illegal drug trafficking in Title 21. See generally S. Rep. No.

225, 98th Cong., 2d Sess. 191-197, reprinted in 1984 U.S.C.C.A.N.

3182, 3374-80 (legislative history of criminal forfeiture

provisions and revisions to civil forfeiture provisions).

We believe that the most important consideration in these

kinds of cases is whether the government pursued its remedies
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against the defendant concurrently or filed a second action after

it was dissatisfied with its initial attempt to prosecute a

particular crime. Halper, 490 U.S. at 451 n. 10; Millan, 2 F.3d at

20-21. The facts in this case give us no cause for concern on this

score. A single, coordinated prosecution, moreover, does not

require that the government provide cross-references between the

indictment and the civil complaint, or that the same judge preside

over both cases, or that there should be a common judgment. We ask

instead some common-sense questions: whether the government

initiated its parallel actions at, or very close to, the same time,

and whether there is some evidence of coordination of the two

matters that connects them in an obvious way. The two cases

against Mr. Smith were instituted within two days of each other,

the same assistant United States attorney appears to have

represented the government in each, and the affidavit attached to

the civil forfeiture complaint made reference to the incidents for

which Mr. Smith was indicted, even though they were not obviously

relevant to the forfeiture matter. In addition, Mr. Smith signed

a settlement of the forfeiture action one day before he pleaded

guilty to the criminal indictment, and the government signed it the

day after the entry of the guilty plea. All of these circumstances

provide strong indications of coordination. We conclude that the

two cases were merely different aspects of a single prosecution and

therefore that Mr. Smith was not subjected to double jeopardy.

IV.

For the foregoing reasons, we affirm the judgment of the

district court.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.