No. 95-3661

 

United States of America, *

 *

 Appellee, *

 * Appeal from the United States

v. * District Court for the

 * Eastern District of Missouri.

Lamond Sykes, also known *

as Q, *

 *

Appellant. *

 

Submitted: December 12, 1995

 Filed: January 9, 1996 

Before FAGG, HEANEY, and WOLLMAN, Circuit Judges.

HEANEY, Circuit Judge.

Lamond Sykes appeals from the district court's denial of his

motion to dismiss an indictment. Sykes contends that the

indictment violates the Double Jeopardy Clause of the Fifth

Amendment because the government has already punished him by

seizing and forfeiting his property for the same offenses. We

affirm.

BACKGROUND

Over a several-month period prior to indictment, the

government seized the following assets from Sykes:

1. A 1994 Jeep Cherokee valued at $32,257 seized pursuant to

21 U.S.C. § 881(a)(6);
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2. $30,000 in U.S. currency seized pursuant to 21 U.S.C. §

881(a)(6);

3. Fourteen pieces of industrial dry cleaning equipment

seized from Sykes business pursuant to 19 U.S.C. 981;

4. $19,222.96 in U.S. currency seized pursuant to 18 U.S.C.

§ 981; and

5. $49,031 in U.S. currency seized pursuant to 21 U.S.C. §

881(a)(6).

Among the five property items, Sykes contested only the forfeiture

of the Jeep and the $30,000. The government completed forfeiture

against the other three properties in proceedings that were

uncontested by Sykes. 

Subsequently, the government indicted Sykes for offenses

arising from the same conduct that was the basis of the prior

seizures and forfeitures. The pending indictment charges him with

conspiracy to distribute heroin and cocaine, money laundering,

making a false statement to a federally insured financial

institution, and engaging in a continuing criminal enterprise. At

present, the government has stayed the forfeiture proceedings

against the Jeep pending the outcome of the criminal proceeding.

The government halted its civil action against the $30,000; the

same money is now the subject of a criminal forfeiture count in the

indictment.

DISCUSSION

The question presented by this appeal is whether the district

court erred in holding that the indictment did not violate the

constitutional prohibition against successive punishments for the

same offense. We review the district court's denial of the motion
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to dismiss de novo. United States v. Petty, 62 F.3d 265, 267 (8th

Cir. 1995).

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. Although the text of the Amendment

mentions only harms to "life or limb," it is well settled that the

Double Jeopardy Clause applies to imprisonment and monetary

penalties. See, e.g., United States v. Halper, 490 U.S. 435

(1989); Ex parte Lange, 85 U.S. 163, 18 Wall. 163 (1873). The

Double Jeopardy Clause protects against a second prosecution for

the same offense after an acquittal, a second prosecution for the

same offense after a conviction, and multiple punishments for the

same offense. Schiro v. Farley, 114 S. Ct. 783, 789 (1994). Sykes

asserts that both the prior forfeitures and the pending forfeitures

constitute punishment within the meaning of the Double Jeopardy

Clause and, therefore, that he cannot be prosecuted for the same

offenses which formed the basis of those forfeitures. We disagree.

Before Sykes can invoke the Double Jeopardy Clause to bar this

prosecution, he must demonstrate that he has already been subjected

to punishment in a prior proceeding. Serfass v. United States, 420

U.S. 377, 393 (1975) ("[It is a] fundamental principle that an

accused must suffer jeopardy before he can suffer double

jeopardy.") With respect to the completed administrative

forfeitures, Sykes was not a party to the proceedings; he did not

contest the forfeitures. Under the holding of this court in United

States v. Pena, 67 F.3d 153, 155-56 (8th Cir. 1995), Sykes was not

placed in jeopardy by those civil proceedings. But see Gainer v.

United States, 1995 WL 675437 (D. Kan. Nov. 8, 1995) and United

States v. Brophil, 899 F. Supp. 1257, 1264 (D. Vt. 1995) (holding

that failure to appear at a civil forfeiture proceeding does not

preclude an individual from raising a double jeopardy claim in a

subsequent criminal prosecution). Nor has Sykes been subjected to

prior jeopardy by the pending forfeitures of the Jeep and $30,000.
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Although Sykes intervened in the proceedings and asserted his

ownership of the property, this circuit has held that the

government's stay of the forfeiture proceedings prevents the

attachment of jeopardy. United States v. Clemente, 1995 WL 704334,

*2 (8th Cir. Dec. 1, 1995) ("Jeopardy does not attach upon the

government's mere filing of an administrative claim.")

Sykes fails to demonstrate the prerequisite prior jeopardy.

Thus, the indictment does not violate the Double Jeopardy Clause

and we affirm the district court. 

A true copy.

Attest:

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