*The HONORABLE LEVIN H. CAMPBELL, United States Circuit

Judge for the First Circuit, sitting by designation.

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No. 95-1847

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United States, *

*

Appellee, *

*

v. * Appeal from the United States

* District Court for the

Robert Melvin Volanty, * Western District of Missouri

*

Appellant. *

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Submitted: January 9, 1996

Filed: March 7, 1996

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Before WOLLMAN, CAMPBELL, and MURPHY, Circuit Judges. *

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MURPHY, Circuit Judge.

Robert Melvin Volanty appeals from the denial of his supplemental

motion for the return of property pursuant to Federal Rule of Criminal

Procedure 41(e). In late 1992 Volanty's hotel room was searched and drugs,

a firearm, and a large amount of currency were seized. He was arrested,

and early in 1993 he was indicted and administrative forfeiture proceedings

were initiated. He was convicted on all counts in May, and a default

forfeiture of the currency was entered in June. Volanty had not received

notice of the administrative forfeiture proceeding, however, and he moved

in the district court to return the currency because the government had

acted in bad faith and because of the constitutional
 The Honorable Scott O. Wright, United States District Judge 1

for the Western District of Missouri.

 Volanty has filed a motion to file a supplemental appendix 2

consisting of medical records. Because the records are not

relevant to the legal issues presented, the motion is denied.

2

prohibition against double jeopardy. The district court declined to

1

return the property and ordered the government to commence a judicial

forfeiture proceeding. We affirm.2

On November 21, 1992, officers from the Springfield Police Department

(SPD) seized $19,996 from Volanty's hotel room pursuant to a consent

search. The officers also discovered and seized marijuana, cocaine, and

a firearm. Volanty admitted that the drugs, weapon and cash were his, but

he stated that he had "found" the money. Volanty was arrested and taken

into state custody. At the time of his arrest he gave his address as

"General Delivery, Springfield, MO 65801."

On January 7, 1993, the United States filed an indictment charging

Volanty with conspiracy to distribute cocaine during the period from

October 22 through November 21, 1992, in violation of 21 U.S.C. § 846,

possession with intent to distribute cocaine, in violation of 21 U.S.C. §

841(a)(1), use and carrying of a firearm during and in relation to the drug

offenses, in violation of 18 U.S.C. § 924(c), and possession of a firearm

by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The charges

in the indictment were based on the cocaine and firearms seized by the SPD

from Volanty's hotel room at the time of his arrest on November 21, 1992,

the same time that the currency was seized. Volanty pled not guilty, and

a jury convicted him of all four counts on May 4, 1993. He was sentenced

on July 15, 1993 to a total term of 350 months imprisonment.

While the criminal prosecution on drug and firearms charges
3

proceeded, steps were being taken for the forfeiture of the seized

currency. On February 5, 1993, the SPD turned the money over to the Drug

Enforcement Administration (DEA), which began forfeiture proceedings. On

March 17, 1993, Volanty was sent a Notice of Seizure by certified mail.

He was in federal custody at that time, but the DEA sent the notice to the

address he had provided at the time of his arrest. It was "returned to

sender." The DEA also published notice of the seizure, starting on March

24, 1993, and no claims were filed. On June 25, 1993 the DEA declared

forfeiture as to the $19,966.

Nearly nine months later, Volanty filed a pro se motion for return

of seized property. He asserted that the currency had been unlawfully

seized and was not subject to forfeiture. After the government responded

that the currency had already been forfeited, Volanty asserted that he had

not received proper notice of the administrative proceeding. At a hearing

on the motion, the government acknowledged that Volanty's due process

rights had been violated in the administrative forfeiture and suggested

that the proper remedy would be to initiate a new proceeding, which it was

prepared to do immediately. The district court did not rule on the motion

at that time and appointed counsel to represent Volanty on the matter. 

Volanty later filed a supplemental motion for return of the seized

currency in which he reasserted his original claims and also argued that

the proper remedy to the due process violation was to order the money

returned to him. He claimed that the government should not be allowed to

initiate a new proceeding because it had acted in bad faith and because

forfeiture of the currency would violate double jeopardy.

On January 23, 1995, the district court entered an order denying

Volanty's supplemental motion to return the seized
 In a separate order on the same day, the district court 3

denied as moot Volanty's pro se motion. Volanty does not appeal

from that order.

 The government filed a civil forfeiture action the day 4

after the district court's order was filed. The forfeiture

action remains pending.

4

property. It held that Volanty's due process rights had been violated by 3

the original forfeiture proceeding and determined that the proper remedy

was to allow the government to begin anew and to file forfeiture

proceedings in district court. The court declined to discuss double

jeopardy, stating that the defendant could assert all available defenses

after a judicial forfeiture proceeding was initiated. 

4

Volanty argues on appeal that the district court abused its

discretion when it allowed the government to commence judicial forfeiture

proceedings instead of ordering the currency returned to him. He claims

that the government acted in bad faith when it mailed the forfeiture notice

to general delivery and that forfeiture of the currency would constitute

double jeopardy because he has already been convicted and punished for

related offenses. The government does not dispute that the administrative

forfeiture should be set aside, but argues that it was appropriate for it

to be permitted to correct its error and to commence a judicial forfeiture

proceeding.

When an administrative forfeiture is void for lack of notice, a

district court "must set aside the forfeiture Declaration and order DEA

either to return [the] property or commence judicial forfeiture in the

district court." United States v. Woodall, 12 F.3d 791, 795 (8th Cir.

1993). The parties agree that the district court has the discretion to

choose between the remedies and that its decision should be reviewed under

an abuse of discretion standard.
5

Volanty first claims that return of his property is the required

remedy in this case because the government acted in bad faith. The record

does not support his assertion, however. The DEA attempted to notify the

defendant by mail and published notification in the newspaper. At the

hearing on the motion for the return of the property, the government

admitted error and agreed to correct it by instituting new proceedings.

The district court noted that Volanty had given general delivery as his

address and that was the information forwarded to the DEA. The court did

not err in declining to find bad faith on the part of the government.

Volanty also argues that the district court abused its discretion by

allowing the commencement of a new forfeiture proceeding when forfeiture

of the currency would violate the double jeopardy clause of the Fifth

Amendment. He claims that double jeopardy bars the government from seeking

forfeiture because he has already been punished in a criminal action for

the same offenses that would be the basis of the forfeiture action.

Multiple punishments may not be imposed for the same offense. United

States v. Halper, 490 U.S. 435, 440 (1989). Volanty asserts that civil

forfeiture of drug proceeds is not merely a remedial sanction because it

has "penal and prohibitory intent" similar to Montana's drug possession tax

which was held to constitute punishment. See Department of Revenue of

Montana v. Kurth Ranch, 114 S. Ct. 1937, 1947 (1994) (state drug tax

constitutes punishment for purposes of double jeopardy analysis). He also

argues that his criminal prosecution and the civil forfeiture action are

necessarily separate proceedings and therefore cannot both be pursued. 

The district court explicitly declined to rule on the merits of

Volanty's double jeopardy argument, stating that his claim could be raised

as a defense to any future forfeiture proceeding. We agree that the issue

was raised prematurely and conclude that it was not an abuse of discretion

for the district court to require
6

the defendant to raise it as a defense in the forfeiture proceeding. See

Woodall, 12 F.3d at 795. Double jeopardy is not typically addressed before

a case is even filed. Once the new proceeding was initiated, Volanty was

simply in the same position as any other defendant asserting a double

jeopardy claim. 

The merits of Volanty's double jeopardy argument are not before us

at this time. Because the factual record is not complete, the argument

should be addressed in the first instance by the district court in the

judicial forfeiture action. The court must consider whether civil

forfeiture of the currency would constitute punishment and whether the

separate criminal prosecution and civil forfeiture action in this case were

parts of a single coordinated prosecution. 

A civil penalty may constitute punishment for double jeopardy

purposes if it is not remedial in nature, but serves "only as a deterrent

or retribution." Halper, 490 U.S. at 449. A civil forfeiture is

considered to be remedial if it is "rational[ly] relat[ed] to the goal of

compensating the government for its loss." Id. A determination that the

currency is drug proceeds may be relevant to whether its forfeiture

constitutes punishment. See United States v. Clementi, 70 F.3d 997 (8th

Cir. 1995) (forfeiture of firearms under 924(d) is not punishment because

forfeiture of the fruits of illegal activity is rationally related to the

damages of that activity). Here, the government has not yet had an

opportunity to establish a connection between the currency and the drug

related offenses, nor has Volanty had a chance to challenge any such

showing. 

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.

Smith, No. 95-1568, slip op. at 7, 1996 WL 34552 (8th Cir. January 31,

1996); but see United States v. $405,089.23,
7

33 F.3d 1210 (9th Cir. 1994), amended on denial of reh'g en banc, 56 F.3d

41 (9th Cir. 1995), cert. granted, 116 S. Ct. 762 (1996). To determine

whether both are part of a single prosecution requires examining "the

essence of the actions at hand by determining when, how, and why the civil

and criminal actions were initiated." United States v. Millan, 2 F.3d 17,

20 (2d Cir. 1993), cert. denied, 114 S. Ct. 992 (1994). The court must ask

"common-sense questions" such as "whether the government initiated its

parallel actions at, or very close to, the same time and whether there is

come evidence of coordination of the two matters that connects them in an

obvious way." Smith, slip op. at 7. The most important consideration is

whether the government pursued its remedies against the defendant

concurrently or filed a second action after it was dissatisfied with its

initial attempt to prosecute a particular crime. Id. 

The judicial forfeiture proceeding is the appropriate forum for the

development of the facts relevant to Volanty's double jeopardy arguments.

Volanty has already asserted his claims there as a defense to the

forfeiture action. 

In conclusion, we hold that the district court did not abuse its

discretion in denying Volanty's supplemental motion for the return of the

seized currency. Accordingly, the order of the district court is affirmed.

A true copy.

Attest:

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