### *The HONORABLE LEVIN H. CAMPBELL, United States Circuit

Judge for the First Circuit, sitting by designation. ___________ No. 95-1847

___________ United States, * * Appellee, * * v. * Appeal from the United States * District Court for the Robert Melvin Volanty, * Western District of Missouri * Appellant. *

___________ Submitted: January 9, 1996 Filed: March 7, 1996

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

___________ MURPHY, Circuit Judge.

Robert Melvin Volanty appeals from the denial of his supplementa l motio n for the return of property pursuant to Federal Rule of Crimina l 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 proceeding s
were init iated. He was convicted on all counts in May, and a defaul t forfeiture of the cur rency was entered in June. Volanty had not received notice of the adminis trative forfeiture proceeding, however, and he moved in the district court to return the currency because the government ha d 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 prohibit ion against double jeopardy. The district court declined t o 1 return the property and ordered the government to commence a judicia l forfeiture proceeding. We affirm. 2
On November 21, 1992, officers from the Springfield Police Depa rtment (SPD ) seized $19,996 from Volanty's hotel room pursuant to a consen t search. The officers also discovered and seized marijuana, cocaine, and a firearm. Volanty admitted that the drugs, wea pon and cash were his, but he stated that he had "found" the money. Volanty was arrested and taken int o state custody. At the time of his arrest he gave his address a s "General Delivery, Springfield, MO 65801."

On Janua ry 7, 1993, the United States filed an indictment chargin g Volant y with conspiracy to distribute cocaine during the period fro m October 22 through November 21, 1992, in violation of 21 U.S.C. § 846 , possession with inten t 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 dru g offenses, in violatio n 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 th e 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

proceede d, steps were being taken for the forfeiture of the seize d currency. On Februar y 5, 1993, the SPD turned the money over to the Drug Enforcement Administr ation (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 addre ss he had provided at the time of his arrest. It was "returned t o sender." The DEA als o published notice of the seizure, starting on March 24, 1993, and no claims were filed. On June 25, 1993 the DEA declare d forfeiture as to the $19,966.
Nearly nine months later, Volanty filed a pro se motion for retur n of se ized property. He asserted that the currency had been unlawfull y seized and was not su bject to forfeiture. After the government responded that the currency had already been forfeited, Vo lanty 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 proces s rights had been violated in the administrative forfeiture and suggeste d that the proper remedy would be to initiate a ne w 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 seize d currencyin which he reasserted his original claims and also argued that the proper remedy to the due process violation was to order the mone y 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 becaus e forfeiture of the currency would violate double jeopardy.

On January 23, 1995, the district court entered an order denyin g 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 d ue process rights had been violated by

3 the original forfeiture proceeding and determined that the proper remedy
wa s to allow the government to begin anew and to file forfeitur e proc eedings in district court. The court declined to discuss doubl e jeopardy, stating that the defendant could assert all available defenses after a judicial forfeiture proceeding was initiated. 4

Volantyargues on appeal that the district court abused it s discretion when it al lowed 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 notic e to general delivery and that forfeiture of the currency would constitute double jeopardy because he has already been convicted and punished fo r related offenses. The government does not dispu te 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 comm ence a judicial forfeiture proceeding.

When an a dministrative forfeiture is void for lack of notice, a dis trict court "must set aside the forfeiture Declaration and order DE A either to return [the] property or commence judicial forfeiture in th e district court." United States v. Woodall , 12 F.3d 791, 795 (8th Cir

. 1993). T he parties agree that the district court has the discretion t o choose between the remedies and that its decisio n should be reviewed under an abuse of discretion standard.

### 5

Vo lantyfirst claims that return of his property is the require d remedy in this case because the government actedin bad faith. The record does not support his assertion, however. The DEA attempted to notify the defen dant by mail and published notification in the newspaper. At th e hear ing on the motion for the return of the property, the governmen t adm itted error and agreed to correct it by instituting new proceedings

. The district court noted that Volanty had given general delivery as hi s 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 distric t court abused its discretion by allowing the commencement of a new forfeiture proceeding when forfeiture of the cur rency would violate the double jeopardy clause of the Fift h Amendment. He claims that double jeopardy bars the government from seekin g 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 p unishments may not be imposed for the same offense. Unite d States v. Halper , 490 U.S. 435, 440 (1989). Volanty asserts that civi l forfeiture of drug proceeds is not merely a remedial sanction because it has "penal and prohibitory intent" similar to Montana's drug possession ta x which was held to constitute punishment. See Department of Revenue o f Montan a v. Kurth Ranch , 114 S. Ct. 1937, 1947 (1994) (state drug ta x constitutes punishment for purposes of double je opardy analysis). He also argues that his criminal prosecution and the civil forfeiture action are necessarilyseparate proceedings and therefore cannot both be pursued.

The distr ict court explicitly declined to rule on the merits o f 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 rais e it as a defense in the forfeiture proceeding. See Woodall , 12 F.3d at 795. Double jeopardy is not typically addressed befor e a case is even filed. Once the new proceeding was initiated, Volanty was simply in the same position as any other defendant asserting a doubl e jeopardy claim.

The meri ts of Volanty's double jeopardy argument are not before u s at this t ime. Because the factual record is not complete, the argumen t should be addressed in the first instance by the district court in th e judici al forfeiture action. The court must consider whether civi l forfei ture of the currency would constitute punishment and whether th e separate criminal prosecution and civil forfeiture action in this case wer e parts of a single coordinated prosecution.

A civil penalty may constitute punishment for double jeopard y 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 i s considered to be reme dial 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 forfeitur e constitutes punishment. See United States v. Clementi , 70 F.3d 997 (8th Cir. 1995) (forfeitur e of firearms under 924(d) is not punishment because forfeiture of the fru its of illegal activity is rationally related to the damages o f that activity). Here, the government has not yet had a n opp ortunityto establish a connection between the currency and the dru g rela ted offenses, nor has Volanty had a chance to challenge any suc h showing.

Concurren t civil and criminal proceedings, based on the same facts, do not violate the double jeopardy clause when the separate proceeding s take the form of a "single, coordinated prosecution." United States v

. Smith , N o. 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 determin e whether both are part of a single prosecution requires examining "th e essence of the actions at hand by determining wh en, how, and why the civil and criminal actions were initiated." United St ates v. Millan , 2 F.3d 17, 20 (2d Cir. 1993), cert. denied , 114 S. Ct. 992 (1994). The court must as k "com mon-sense questions" such as "whether the government initiated it s parallel actions at, or very close to, the same time and whether there is come evidence of coor dination of the two matters that connects them in an obvious way." Smith , slip op. at 7. The most important consideration is whe ther the government pursued its remedies against the defendan t concurrentlyor filed a second action after it was dissatisfied with its initial attempt to prosecute a particular crime. Id.
The judic ial forfeiture proceeding is the appropriate forum for the development of the fa cts relevant to Volanty's double jeopardy arguments. Volanty has already asserted his claims there as a defense to th e forfeiture action.

In con clusion, we hold that the district court did not abuse it s 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