*

 This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 6/10/96 TENTH CIRCUIT

 

UNITED STATES OF AMERICA, )

 )

Plaintiff-Appellee, )

 )

vs. ) No. 96-1020

 ) (D.C. No. 92-CR-248)

JORGE CARLOS RODRIQUEZ, ) (D. Colo.)

 )

Defendant-Appellant. )

 

ORDER AND JUDGMENT*

 

Before BALDOCK, BRORBY, and EBEL, Circuit Judges.

 

Defendant Jorge Carlos Rodriquez appeals the district court’s order deferring

ruling on his Motion to Bar Prosecution on Double Jeopardy grounds. We exercise

jurisdiction under 28 U.S.C. § 1291, and the collateral order exception to the

final-judgment rule, Abney v. United States, 431 U.S. 651 (1977), and remand for further

proceedings consistent with this opinion. 

I.

In July 1992, a grand jury indicted Defendant and co-defendant Osmay

Perez-Herrera for federal cocaine offenses. In April 1993, the government
2

administratively forfeited approximately $1 million in Florida properties, as well as

various personal property owned by Defendant. It is not clear from the record whether

the government notified Defendant of the forfeiture proceedings. Defendant apparently

did not file a claim of ownership or contest the forfeiture proceedings. 

In July 1994, the grand jury returned a superseding indictment, charging Defendant

with conspiracy to possess with intent to distribute cocaine and to distribute cocaine, 21

U.S.C. §§ 841(a)(1), (b)(1)(A), 846, and possession with intent to distribute cocaine, 21

U.S.C. §§ 841(a)(1), (b)(1)(A). 

In October 1995, Defendant filed a Motion to Bar Prosecution on Double Jeopardy

grounds. Defendant argued that the government was impermissibly subjecting him to

multiple punishment for the same offenses, in violation of the Fifth Amendment Double

Jeopardy Clause. Defendant contended that the government first punished him for the

underlying drug offenses by forfeiting the various properties, and sought to punish him a

second time for the same offenses through criminal prosecution. Defendant requested the

court bar prosecution and dismiss the indictment.

 On January 2, 1996, the district court entered an order deferring ruling on

Defendant’s Motion to Bar Prosecution until after the criminal trial. The court

determined the motion was premature, stating:

that because the only aspect of the double jeopardy clause involved in this

case is double punishment and because the trial of the case does not involve

punishment and the issue of punishment only arises after there are verdicts

or findings of guilty on counts which may relate to the bases for civil
3

forfeiture, the motions are premature and should be reserved for

determination prior to sentencing.

This appeal followed.

II.

The parties dispute our jurisdiction over the instant interlocutory appeal. We adopt

our analysis set forth in part II.A of the companion appeal of United States v. PerezHerrera, No. 96-1023, ___ F.3d ___ (10th Cir.) (slip op.), and conclude 28 U.S.C. § 1291

and the collateral order exception to the final-judgment rule, Abney v. United States, 431

U.S. 651 (1977), empower us to review the district court’s order. We adopt our analysis

in part II.B of Perez-Herrera and conclude the district court should have ruled on

Defendant’s Motion to Bar Prosecution. We REMAND to the district court with

instructions to conduct further proceedings consistent with this opinion and rule on

Defendant’s Motion to Bar Prosecution. 

REMANDED for further proceedings consistent with this opinion.

Entered for the court,

Bobby R. Baldock

Circuit Judge