1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-11-1995

United States v Baird

Precedential or Non-Precedential:

Docket 95-1202

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Recommended Citation

"United States v Baird" (1995). 1995 Decisions. Paper 217.

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1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

___________ 

No. 95-1202 

___________ 

UNITED STATES OF AMERICA 

 vs. 

FRANK L. BAIRD, 

 Appellant. 

___________ 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

(D.C. Criminal No. 94-cr-00215) 

___________ 

ARGUED MAY 18, 1995 

BEFORE: COWEN, LEWIS and SAROKIN, Circuit Judges. 

(Filed August 11, 1995) 

___________ 

Richard S. Wasserbly (ARGUED) 

100 East Court Street 

Doylestown, PA 18901 

Stuart M. Wilder (ARGUED) 

Pratt, Brett, Thome & Lyons 

69 East Court Street 

Doylestown, PA 18901 

 Attorneys for Appellant
2 

Walter S. Batty, Jr. (ARGUED) 

Sonia C. Jaipaul (ARGUED) 

Joseph T. Labrum, III 

Office of the United States Attorney 

615 Chestnut Street 

Suite 1250 

Philadelphia, PA 19106 

 Attorneys for Appellee

___________ 

OPINION OF THE COURT 

___________ 

LEWIS, Circuit Judge. 

 In this appeal, the appellant, Frank L. Baird 

("Baird"), seeks dismissal on double jeopardy grounds of a 

superseding indictment charging him with violations of federal 

criminal law. He argues that as a result of a prior 

administrative forfeiture of monies seized from his residence, he 

has already been once "punished" for the offenses alleged in the 

indictment. A subsequent criminal prosecution would, he argues, 

run afoul of the Double Jeopardy Clause. 

 To assess the merits of Baird's unusual double jeopardy 

argument, we must determine whether Baird was "punished" as a 

result of the administrative forfeiture of money seized from his 

residence. We conclude that Baird was not "punished" by the 

administrative forfeiture of seized money never determined to be 

his. Moreover, assuming, arguendo, that the forfeited money 

belonged to Baird, we further conclude that the administrative 
3 

forfeiture did not place Baird in a former jeopardy. Therefore, 

the pending prosecution of Baird for the offenses alleged in the 

superseding indictment will not subject Baird to double jeopardy. 

For these reasons, we will affirm the district court's denial of 

Baird's motion to dismiss. 

I. Facts and Procedural History

 In April of 1994, law enforcement officials conducted a 

search of Frank Baird's residence on the suspicion that he was 

manufacturing and selling 3,4 methylenedioxy-methamphetamine 

("Ecstacy"). The search of Baird's residence turned up an 

elaborate clandestine Ecstacy-manufacturing operation, complete 

with precursor chemicals, extensive laboratory apparatus, coded 

formulas for the manufacture of the drug, and stock piles of 

already manufactured Ecstacy. In addition, $2,582 in United 

States currency was found in the bedroom area of Baird's 

residence. This money was seized by law enforcement officials. 

 In a superseding indictment returned in August of 1994, 

Baird was charged with various drug and drug-related violations 

of federal criminal law.0 Prior to the returning of this 

 

0

 Baird was charged in Count 1 with conspiracy to manufacture 

and distribute Ecstacy; in Count 2, with the manufacture of 

approximately 20 kilograms of Ecstacy; in Count 3, with 

possessing approximately 32 kilograms of Ecstacy with the intent 

to distribute it within 1000 feet of the Baldwin School located 

in Bryn Mawr, Pennsylvania; in Count 4, with possessing 

approximately 32 kilograms of Ecstacy with the intent to 

distribute it; in Count 5, with attempt to manufacture Ecstacy; 

in Count 6, with attempt to manufacture amphetamine; in Count 7, 

with creating a substantial risk of harm to human life while 

manufacturing and attempting to manufacture Ecstacy; in Count 8, 

with maintaining a place for the purpose of manufacturing 

Ecstacy; and in Count 9, with carrying a firearm during and in 

relation to a drug trafficking crime for which Baird could be 
4 

indictment against him, however, the Drug Enforcement 

Administration ("DEA") carried out the administrative forfeiture 

of the $2,582 seized from Baird's residence. 

 In February of 1995, Baird filed a pre-trial motion to 

dismiss the superseding indictment on double jeopardy grounds. 

The district court denied Baird's motion, finding under United 

States v. Torres, 28 F.3d 1463 (7th Cir. 1994), and United States 

v. Tilley, 18 F.3d 295 (5th Cir. 1994), that initial jeopardy did 

not attach as a result of the administrative forfeiture of the 

seized money. This interlocutory appeal followed. We have 

stayed Baird's trial pending resolution of his appeal. 

II. Jurisdiction and Standard of Review

 Subject matter jurisdiction of the district court is 

based upon 18 U.S.C. § 3231.0 We have jurisdiction over Baird's 

appeal under 28 U.S.C. § 12910 and the collateral order doctrine 

announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 

541 (1949). See Witte v. United States, ___ U.S. ___, 115 S. Ct. 

2199 (1995) (holding that a multiple punishments double jeopardy 

 

prosecuted in a Court of the United States, that is, possession 

of Ecstacy with the intent to distribute it, as charged in 

Count 4. 

0

 18 U.S.C. § 3231 provides: 

 The district courts of the United States 

shall have original jurisdiction, exclusive 

of the courts of the States, of all offenses 

against the laws of the United States. 

0

 28 U.S.C. § 1291 provides: 

 The courts of appeals . . . shall have 

jurisdiction of appeals from all final 

decisions of the district courts of the 

United States . . . except where a direct 

review may be had in the Supreme Court. 
5 

claim is ripe for appellate review even where the claimant has 

yet to have been a second time convicted).0 Our review of the 

double jeopardy issue in this case is plenary. See Epstein 

Family Partnership v. Kmart Corp., 13 F.3d 762, 766 (3d Cir. 

1994) (legal questions are subject to plenary appellate review). 

III. Double Jeopardy Analysis

 The Double Jeopardy Clause of the Fifth Amendment0 has 

been said to protect against three distinct abuses: a second 

prosecution for the same offense after acquittal; a second 

prosecution for the same offense after conviction; and multiple 

punishments for the same offense. See, e.g., North Carolina v. 

Pearce, 395 U.S. 711, 717 (1969); Schiro v. Farley, 114 S. Ct. 

783, 789 (1994). "These protections stem from the underlying 

premise that a defendant should not be twice tried or punished 

for the same offense." Schiro, 114 S. Ct. at 789. According to 

the parties, it is the third of these abuses -- multiple 

punishments for the same offense -- which is of concern in this 

appeal. 

 The Supreme Court has stated that "the primary evil to 

be guarded against [by the Double Jeopardy Clause] is successive 

 

0

 The government has filed a motion to dismiss Baird's appeal 

in which it argues that the right Baird asserts -- the right not 

to be punished twice for the same offense -- can be fully 

vindicated on appeal at the conclusion of Baird's trial, and that 

we therefore lack jurisdiction under the collateral order 

doctrine to hear Baird's appeal. In light of the recently 

decided Witte v. United States, this argument is clearly 

untenable. We will, therefore, deny the government's motion to 

dismiss. 

0

 The Double Jeopardy Clause provides: "[N]or shall any 

person be subject for the same offense to be twice put in 

jeopardy of life or limb . . . ." U.S. Const. Amdt. 5. 
6 

prosecutions: `[T]he prohibition against multiple trials is the 

controlling constitutional principle.'" Id. (citations omitted). 

Nevertheless, the prohibition against multiple punishments for 

the same offense has "deep roots in our history and our 

jurisprudence." United States v. Halper, 490 U.S. 435, 440 

(1989). 

As early as 1641, the Colony of Massachusetts 

in its "Body of Liberties" stated: "No man 

shall be twise sentenced by Civill Justice 

for one and the same Crime, offence, or 

Trespasse." In drafting his initial version 

of what came to be our Double Jeopardy 

Clause, James Madison focused explicitly on 

the issue of multiple punishment: "No person 

shall be subject, except in cases of 

impeachment, to more than one punishment or 

one trial for the same offence." In our case 

law too, this Court, over a century ago, 

observed: "If there is anything settled in 

the jurisprudence of England and America, it 

is that no man can be twice lawfully punished 

for the same offence." Ex parte Lange, 18 

Wall 163, 168, 21 L.Ed. 872 (1874). 

Id. (some citations omitted). 

 In two recent unanimous decisions, the Supreme Court 

gave the "no multiple punishments" rule a "breadth of effect it 

had never before enjoyed." See Montana Dept. of Rev. v. Kurth 

Ranch, 114 S. Ct. 1937, 1957 (1994) (Scalia, J., dissenting). In 

the first of these, United States v. Halper, 490 U.S. 435 (1989), 

the Court for the first time announced that civil penalties may, 

in certain instances, constitute "punishment" for double jeopardy 

purposes. Halper, 490 U.S. at 448. In the second, Austin v. 

United States, 113 S. Ct. 2801 (1993), the Court relied upon 

Halper to conclude that civil forfeitures undertaken pursuant to 
7 

21 U.S.C. §§ 881(a)(4) and (a)(7)0 constitute "punishment" for 

purposes of Eighth Amendment Excessive Fines Clause0 analysis. 

Austin, 113 S. Ct. at 2812. While Austin addressed the meaning 

of "punishment" in a different context, we agree with the Court 

of Appeals for the Ninth Circuit: the "only fair reading of the 

Court's decision in Austin is that it resolves the `punishment' 

issue with respect to forfeiture cases for purposes of the Double 

Jeopardy Clause as well as the Excessive Fines Clause." United 

States v. $405,089.23 United States Currency, 33 F.3d 1210, 1219 

(9th Cir. 1994), opinion amended on denial of rehearing, ___ F.3d 

____, 1995 WL 321826 (9th Cir. 1995); see also David Smith 

Prosecution and Defense of Forfeiture Cases ¶ 12.10[2], at 12-131 

 

0

 These statutes provide for the forfeiture of: 

 (4) All conveyances, including 

aircraft, vehicles, or vessels, which are 

used, or are intended for use, to transport, 

or in any manner to facilitate the 

transportation, sale, receipt, possession, or 

concealment of [controlled substances, their 

raw materials, and equipment used in their 

manufacture and distribution] 

. . . . 

 (7) All real property, including any 

right, title, and interest (including any 

leasehold interest) in the whole of any lot 

or tract of land and any appurtenances or 

improvements, which is used, or intended to 

be used, in any manner or part, to commit, or 

to facilitate the commission of, a violation 

of this subchapter punishable by more than 

one year's imprisonment . . . . 

21 U.S.C. §§ 881(a)(4), (7). 

0

 The Eighth Amendment provides: "Excessive bail shall not 

be required, nor excessive fines imposed, nor cruel and unusual 

punishments inflicted." U.S. Const. Amdt. 8. 
8 

("The Supreme Court's decision in Austin v. United States, makes 

it clear that Halper's double jeopardy protections do apply to 

the vast majority of civil forfeiture cases."). 

 According to Baird, together, Halper and Austin

establish that the administrative forfeiture of money under 21 

U.S.C. § 881(a)(6)0 constitutes "punishment" for purposes of 

double jeopardy analysis. We do not think Halper and Austin go 

so far. While these precedents do suggest that the civil

forfeiture of money under 21 U.S.C. § 881(a)(6) is "punishment" 

precluding the meting out of additional punishment for the "same 

offence" by the "same sovereign" in a subsequent proceeding, see

$405,089.23 United States Currency, 33 F.3d at 1222 (holding that 

civil forfeitures of drug proceeds under 21 U.S.C. § 881(a)(6) 

constitute "punishment" under Halper and Austin); but see Tilley, 

18 F.3d at 300 (holding that civil forfeitures of drug proceeds 

do not constitute "punishment" for double jeopardy purposes), 

Halper and Austin do not suggest, let alone establish, that 

administrative forfeiture under 881(a)(6) amounts to "punishment" 

relevant to the double jeopardy inquiry. To understand the 

critical distinction we are drawing between civil and 

 

0

 21 U.S.C. § 881(a)(6) provides for the forfeiture of: 

 All moneys, negotiable instruments, 

securities, or other things of value 

furnished or intended to be furnished by any 

person in exchange for a controlled substance 

in violation of this subchapter, all proceeds 

traceable to such an exchange, and all 

moneys, negotiable instruments, and 

securities used or intended to be used to 

facilitate any violation of this subchapter 

. . . . 
9 

administrative forfeiture, a brief discussion of the nature and 

process of administrative forfeiture is in order. 

 The purpose of administrative forfeiture is "to save 

the government the time and expense of [a] judicial [forfeiture] 

proceeding in cases where the value of the seized property [is] 

small." United States v. United States Currency Etc., 754 F.2d 

208, 211 (7th Cir. 1985).0 In keeping with this purpose, Federal 

civil forfeiture statutes allow certain statutorily defined 

categories of property to be forfeited administratively, i.e., 

without the filing of a civil forfeiture action in federal 

district court. See David Smith Prosecution and Defense of 

Forfeiture Cases ¶ 6.01, at 6-1. 

 The administrative forfeiture procedure begins with the 

seizing agency, in this case the DEA, publishing a notice of 

seizure and intent to forfeit once a week for at least three 

successive weeks in a newspaper of general circulation in the 

judicial district in which the seizure occurred. 19 U.S.C. 

§ 1607(a); 21 C.F.R. § 1316.75. The agency is also statutorily 

required to give personal written notice of the seizure and 

information on the applicable procedure to any party who appears 

to have an interest in the seized property. 19 U.S.C. § 1607(a). 

A person may contest an administrative forfeiture, at any time 

within twenty days of the first publication of the notice of 

seizure, by filing a claim "stating his [or her] interest 

 

0

 Under 19 U.S.C. § 1607(a), administrative forfeiture may be 

undertaken to effect the forfeiture of as much as $500,000 in 

United States currency. 
10 

therein," and posting a cost bond of $5,000 or ten percent of the 

value of the property, whichever is less, but not less than $250. 

19 U.S.C. § 1608. The proper and timely filing of a claim and 

cost bond has the effect of stopping the administrative 

forfeiture process, and forcing the seizing agency to refer the 

matter to the United States Attorney for the district where the 

property was seized for the institution of judicial forfeiture 

proceedings in the ordinary mode prescribed by law. 19 U.S.C. 

§§ 1603(b) and 1608; 21 C.F.R. § 1316.76(b). Where no person 

files a claim to the seized property within the statutory period, 

the agency is authorized to declare the property forfeited. 19 

U.S.C. § 1609(b); 21 C.F.R. § 1316.77. 

 In sum, administrative forfeiture is a procedure 

available to the government "only if the value of the property 

seized is less than the jurisdictional amount and if no claim to 

the property is filed within the twenty days after the date of 

first publication of the notice of seizure." United States 

Currency Etc., 754 F.2d at 212 (emphasis in the original). 

Significantly for our purposes, administrative forfeiture is only 

appropriate in cases where the seized property in question goes 

unclaimed. Without overstating it, administrative forfeiture is, 

in reality, a non-proceeding -- it is merely the consequence of 

no one having come forward to claim the property seized or 

contest its forfeitability. With this introduction to 

administrative forfeiture in mind, we turn now to determine the 

merits of Baird's double jeopardy claim. 
11 

 Without adopting a position on the matter, we can 

certainly understand how a court might conclude that civil

forfeiture under 21 U.S.C. § 881(a)(6) of drug proceeds 

constitutes "punishment" for double jeopardy purposes. See

$405,089.23 United States Currency, 33 F.3d at 1218-22. However, 

we cannot fathom how an administrative forfeiture, under section 

881(a)(6), of unclaimed alleged drug proceeds could possibly be 

held to constitute "punishment" in relation to an individual's 

double jeopardy claim. Any "punishment" resulting from the 

administrative forfeiture of suspected drug proceeds is 

punishment only in the abstract, wholly unattached to any 

specific person, and thus cannot serve as the basis for a double 

jeopardy claim. This is because administrative forfeiture does 

not, and, by its very definition, cannot, entail a determination 

of ownership of the property to be forfeited. All property 

administratively forfeited is, as a matter of law, "ownerless" 

property, and the taking of ownerless property "punishes" no one. 

Because Baird never asserted an interest in the money that was 

seized from his residence, he cannot now claim to have been 

punished by its forfeiture. 

 Even were we to assume, arguendo, that Baird was the 

owner of the seized and forfeited money, we would nonetheless 

affirm the district court's denial of Baird's motion to dismiss 

because we do not agree that administrative forfeitures place in 

jeopardy the person whose property is so forfeited. 

 Succinctly stated, "[y]ou can't have double jeopardy 

without a former jeopardy[;]" that is, to prevail on a double 
12 

jeopardy claim, former jeopardy must be shown to have attached. 

United States v. Torres, 28 F.3d 1463 (7th Cir. 1994) (citing

Serfass v. United States, 420 U.S. 377, 389 (1975). In essence, 

Baird asks us to find that he was placed in jeopardy by the nonjudicial administrative forfeiture process undertaken in this 

case. In rejecting this argument, we are compelled to explain 

what it means to be placed "in jeopardy." 

 The Double Jeopardy Clause was "designed to protect an 

individual from being subjected to the hazards of trial and 

possible conviction more than once for an alleged offense." Green 

v. United States, 355 U.S. 184, 187 (1957). 

The underlying idea, one that is deeply 

ingrained in at least the Anglo-American 

system of jurisprudence, is that the State 

with all its resources and power should not 

be allowed to make repeated attempts to 

convict an individual for an alleged offense, 

thereby subjecting him [or her] to 

embarrassment, expense and ordeal and 

compelling him [or her] to live in a 

continuing state of anxiety and insecurity, 

as well as enhancing the possibility that 

even though innocent he [or she] may be found 

guilty. 

Id. at 187-88. As an aid to the resolution of double jeopardy 

claims, "courts have found it useful to define a point in 

criminal [and, post-Halper, civil] proceedings at which the 

constitutional purposes and policies [behind the Double Jeopardy 

Clause] are implicated by resort to the concept of `attachment of 

jeopardy.'" Serfass, 420 U.S. at 388. In the case of a jury 

trial, for example, jeopardy is understood as attaching when the 

jury is empaneled and sworn. Id. In the case of a non-jury 
13 

trial, jeopardy has been said to attach when the court begins to 

hear evidence. Id. In any event, the Court has "consistently 

adhered to the view that jeopardy does not attach, and the 

constitutional [double jeopardy] prohibition can have no 

application, until a defendant is `put to trial before the trier 

of facts, whether the trier be a jury or a judge.'" Serfass, 420 

U.S. at 388 (emphasis supplied). 

Both the history of the Double Jeopardy 

Clause and its terms demonstrate that it does 

not come into play until a proceeding begins 

before a trier "having jurisdiction to try 

the question of the guilt or innocence of the 

accused." Without risk of a determination of 

guilt, jeopardy does not attach, and neither 

an appeal nor further prosecution constitutes 

double jeopardy. 

Id. (citations omitted). It should be clear from this 

description of the "attachment" concept that jeopardy does not, 

and cannot, attach until one is made a party to a proceeding 

before a trier of fact having jurisdiction to try the question of 

guilt or innocence, and that, until such time, the constitutional 

double jeopardy prohibition can have no application.0

 

0

In Halper and Austin, and, for that matter, in Montana Dept. of 

Rev. v. Kurth Ranch, 114 S. Ct. 1937 (1994), the Court did not 

discuss the attachment threshold issue. We do not take the 

Court's failure to discuss "attachment" in these cases to signify 

that it has intended, by implication, to do away with the 

venerable "attachment" threshold requirement. In each of these 

three cases, it was clear that the double jeopardy claimant or 

claimants suffered "punishment" only after having first been made 

a party to a proceeding before a trier of fact with jurisdiction 

to decide "innocence" or "guilt." Thus, the "attachment" 

threshold was, in each of these cases, clearly enough satisfied 

that no discussion of it was required. 
14 

 Because Baird failed to contest the forfeiture, he 

never became a party to any judicial proceeding, criminal or 

civil. In fact, no judicial proceeding occurred prior to the 

forfeiture of the money -- such being the very nature of 

administrative forfeiture. Baird has therefore yet to have been 

placed in jeopardy, or at risk, of a determination of "guilt" and 

the concomitant imposition of "punishment." Like the double 

jeopardy claimant in Torres, as a non-party to the administrative 

forfeiture process, Baird was not, and could not have been, 

placed at risk by that process. And without having been placed 

at risk of a determination of guilt, jeopardy did not attach as a 

consequence of the administrative forfeiture. Thus, "neither an 

appeal nor further prosecution [of Baird would] constitute[] 

double jeopardy." Torres, 28 F.3d at 1465 (quoting Serfass, 420 

U.S. at 389). 

 By asking us to find a double jeopardy violation in his 

case, Baird is asking, essentially, that we give to the "no 

multiple punishments" rule a breadth of effect greater even than 

that given to it by Halper, Austin and Kurth Ranch. Baird would 

have us conclude that multiple punishments, per se, violate the 

Double Jeopardy Clause. Even under the above precedents, this 

just isn't so. Prior to Halper, the "no multiple punishments" 

rule was of rather limited effect -- merely proscribing the 

imposition of those cumulative punishments, for example, fine and 

incarceration, not authorized by the legislature. See Halper, 

490 U.S. at 451 n.10. As noted above, Halper extended the nodouble-punishments rule to civil penalties. Halper also 
15 

"affirm[ed] that [the no multiple punishments rule] demand[s] 

more than mere fidelity to legislative intent . . . ." Kurth 

Ranch, 114 S. Ct. at 1957 (Scalia, J., dissenting). 

Significantly, however, Halper did not remove from the double 

jeopardy claimant's shoulders the burden of establishing a former 

jeopardy. A post-Halper double jeopardy claimant in the position 

of Baird, therefore, cannot prevail merely upon a showing that he 

or she has been once punished for the same offense by the same 

sovereign. Rather, the post-Halper double jeopardy claimant must 

also show that the initial punishment was meted out during the 

course of a prior proceeding having the "functional equivalen[ce] 

of a [prior] criminal prosecution that placed the [claimant] in 

jeopardy . . . `for the same offence.'" Kurth Ranch, 114 S. Ct. 

at 1948. In other words, to prevail on his post-Halper double 

jeopardy claim, Baird would have to establish a former jeopardy.0 

Because of the very manner in which the seized property was 

forfeited, this he was unable to do. 

 

0

The dissent argues that participation in a forfeiture proceeding 

should not be a precondition to a double jeopardy claim. This 

argument does away with the multiple jeopardy requirement and is, 

therefore, contrary to Supreme Court precedent, see Serfass, 420 

U.S. 377 (1975), not to mention the language of the Double 

Jeopardy Clause itself. We are also troubled by the suggestion, 

implicit in the dissent, that one can be "punished" in a manner 

relevant to the Double Jeopardy Clause without having been 

subjected to any judicial process whatsoever. "Unless the whole 

doctrine of our system of jurisprudence, both the Constitution 

and the common law, for the protection of personal rights . . . 

[is] a nullity," Ex Parte Lange, 85 U.S. 163, 176 (1874), no one 

may be "punished" in a manner relevant to the Double Jeopardy 

Clause without first having been subjected to some form of 

judicial procedure, either in the form of a criminal prosecution 

or the "functional equivalent" thereof. 
16 

IV. Conclusion

 Having concluded that we have jurisdiction to hear this 

appeal, and having further concluded that Frank Baird was not 

punished as a result of the administrative forfeiture of the 

money seized from his residence, and that a former jeopardy did 

not attach as a result of the administrative forfeiture of money 

assumed for the sake of argument to have been Baird's property, 

we will deny the government's motion to dismiss this appeal, and 

affirm the district court's denial of Baird's motion to dismiss 

the superseding indictment on double jeopardy grounds. 

_________________________ 
17 
18 

United States v. Frank L. Baird, No. 95-1202. 

SAROKIN, Circuit Judge, dissenting. 

I agree with the majority that this court has jurisdiction over defendant's appeal. 

op. at [Typescript at 4-5]. Accordingly, I too would deny the United States's mo

dismiss the appeal for lack of jurisdiction. On the merits, I conclude that forfei

pursuant to 21 U.S.C.A. § 881(a)(6) may constitute punishment for purposes of the D

Jeopardy Clause. I respectfully dissent because I believe that double jeopardy can 

following a forfeiture, even where defendant has not participated in the forfeiture 

proceeding, if the defendant can establish that he was the owner of the forfeited p

and that such forfeiture constituted punishment. 

I. 

 

The Fifth Amendment's Double Jeopardy Clause reads: "nor shall any person be subjec

the same offence to be twice put in jeopardy of life or limb." U.S. Const., Amdt. 

Supreme Court has explained that "the Double Jeopardy Clause protects against three 

distinct abuses: a second prosecution for the same offense after acquittal; a secon

prosecution for the same offense after conviction; and multiple punishments for the 

offense." United States v. Halper, 490 U.S. 435, 440 (1989). The instant case invo

the third of these protections, a protection which "has deep roots in our history a

jurisprudence." Id. 
19 

In Witte v. United States, U.S. , 115 S.Ct. 2199 (1995), the Supreme Court r

held that although a petitioner had not yet been twice convicted, his "multiple 

punishment" claim was ripe for appellate review before trial because "the Double Je

Clause protects against more than the actual imposition of two punishments for the 

offense; by its terms, it protects a criminal defendant from being twice put in jeo

for such punishment." Id. at 2204-2205. In the instant case, if defendant was pun

by the forfeiture, the prospect of a criminal trial and further punishment places h

jeopardy of prohibited multiple punishments. Thus, it is appropriate and required 

adjudicate his claim prior to trial and on appeal, before he is subjected to the ri

second punishment for the same offense. 

II. 

I turn to the merits of defendant's double jeopardy claim. The question presented 

whether forfeiture pursuant to 21 U.S.C.A. §881(a)(6) (West 1981) constitutes punis

for purposes of the Double Jeopardy Clause. Three recent Supreme Court decisions g

our analysis. See Department of Revenue v. Kurth Ranch, U.S. , 114 S.Ct. 193

(1994); Austin v. United States, U.S. , 113 S.Ct. 2801 (1993); United States 

Halper, 490 U.S. 435 (1989). 

In United States v. Halper, the Supreme Court considered "whether and under what 

circumstances a civil penalty may constitute 'punishment' for the purposes of doubl

jeopardy analysis." 490 U.S. at 436. The Court fashioned the following test: "a c

sanction that cannot fairly be said solely to serve a remedial purpose, but rather 

only be explained as also serving either retributive or deterrent purposes, is 
20 

punishment." Id. at 448. Specifically, the Court held that the Double Jeopardy Cla

prohibition against multiple punishments for the same offense was violated where a 

defendant who already had been punished in a criminal prosecution was subjected to 

additional civil sanction to the extent that the second sanction served the traditi

goals of punishment--deterrence and retribution. Id. at 449. 

The Supreme Court recently applied the Halper test in Department of Revenue v. Kurt

Ranch, supra. There, the Supreme Court considered whether a state tax imposed on t

possession and storage of dangerous drugs constituted a second punishment for purpo

the Double Jeopardy Clause. The Court began its discussion by noting that although 

Amendment's text only mentions harms to "life or limb," it is well settled that the 

Amendment covers monetary penalties. 114 S.Ct. at 1941 n.1. Recognizing that Halpe

decided that the legislature's description of a statute as civil is not determinati

the Double Jeopardy issue, the Court focused instead on whether the tax had punitiv

characteristics that subjected it to the constraints of the Double Jeopardy Clause. 

Ranch, 114 S.Ct. at 1945. The Court found it indicative of penal intent that the t

conditioned on the commission of a crime and was exacted only after the taxpayer ha

arrested for the precise conduct that gave rise to the tax obligation. Id. at 1947

Court held that the drug tax was punitive in nature and therefore must be imposed i

first proceeding or not at all. Id. at 1948. 

In Austin v. United States, supra, the Supreme Court relied heavily on the rational

Halper to determine whether civil forfeiture pursuant to 21 U.S.C.A. §§ 881(a)(4) a

(West Supp. 1995) constitutes punishment for purposes of the Eighth Amendment's Exc

Fines Clause. Austin, 113 S.Ct. at 2806. However, rather than focusing, as the Co
21 

done in Halper, on the goals of the sanction in the individual case, the Austin Cou

reasoned that in the forfeiture context it made more sense to focus on the forfeitu

statute as a whole because "[t]he value of the conveyances and real property forfei

under §§881(a)(4) and (a)(7), . . . vary so dramatically that any relationship betw

Government's actual costs and the amount of the sanction is merely coincidental." 

113 S.Ct. at 2812 n.14. See also Kurth Ranch, 114 S.Ct. at 1948 (focusing on goals 

statute as a whole). The Court concluded that forfeitures under §§ 881(a)(4) and (

are properly considered punishment because: nothing in the sections contradicts the 

historical understanding of forfeiture as imposing punishment; the sections focus o

owner's culpability by providing for the "innocent owner" defense and by tying forf

directly to the commission of drug offenses; and Congress understood the sections a

serving the goals of deterrence and punishment. Austin, 113 S.Ct. at 2810-11. 

Thus, we know from Halper and Kurth Ranch that a civil sanction can constitute puni

for double jeopardy purposes and that the proper focus is whether a civil sanction 

punitive in nature. Moreover, we know from Austin that civil forfeiture pursuant to 

U.S.C.A. §§ 881(a)(4) and (a)((7) is punishment for purposes of the Excessive Fines 

Clause. 

The Supreme Court's holding in Austin that forfeiture pursuant to §881(a)(4) and (a

constitutes punishment is controlling for purposes of § 881(a)(6) (dealing with mon

negotiable instruments, and securities), the section at issue in this case.0 The A

 

0

The following items are subject to forfeiture under §881(a)(6): 

All monies, negotiable instruments, securities, or other things of value 

furnished or intended to be furnished by any person in exchange for a controll

substance in violation of this subchapter, all proceeds traceable to such an 
22 

Court's historical analysis of forfeiture as punishment and its reliance on the 

legislative history of § 881 are equally applicable in the instant case. Moreover, 

the sections of the forfeiture statute at issue in Austin, §881(a)(6) also includes 

innocent owner defense, which focuses on the culpability of the owner in a way that 

it look more like punishment. See Austin, 113 S.Ct. at 2810-11. Section 881(a)(6)

conditioning of forfeiture on a violation of the Controlled Substances Act is also 

indicative of Congress' punitive intent. See id. at 2811. 

Further, the legislative history of § 881(a)(6) evidences Congress's intent to puni

to deter. Senator Culver, a sponsor of the legislation, said it would "provide the 

States with strong new weapons to . . . strike at the profits of illegal drug 

trafficking." 124 Cong. Rec. S17644 (Oct. 7, 1978). Senator Nunn, also a sponsor 

legislation, explained that "[t]he criminal justice system can only be effective if 

is a meaningful deterrent. It is important that the offender be aware of the risk 

running." 124 Cong. Rec. S11965 (July 27, 1978). "We cannot forget that profit, 

astronomical profit, is the base motivation of drug traffickers." Id. By "strikin

against the profits from illicit drug trafficking" the enactment of § 661(a)(6) wou

enhance "the punitive and deterrent purposes of the Controlled Substances Act," whi

would then "have greater impact on drug trafficking." Id. 

 

exchange, and all monies, negotiable instruments, and securities used or 

intended to be used to facilitate any violation of this subchapter, except tha

no property shall be forfeited under this paragraph, to the extent of the 

interest of an owner, by reason of any act or omission established by that own

to have been committed or omitted without the knowledge or consent of that 

owner. 

21 U.S.C.A. § 881(a)(6) (West 1981). 
23 

The specific holding in Austin is that civil forfeiture constitutes punishment for 

purposes of the Excessive Fines Clause. In contrast, this case involves a claim un

Double Jeopardy Clause, yet I believe that Austin is controlling for double jeopard

claims as well. Significantly, in Austin the Supreme Court relied on Halper, which 

involved the Double Jeopardy Clause, to decide whether a civil sanction constituted 

punishment for purposes of the Excessive Fines Clause. See 1 David B. Smith, Prose

and Defense of Forfeiture Cases, ¶ 12.10[2], at 12-136 (1994) ("The Supreme Court's 

decision in Austin v. United States, makes it clear that Halper's double jeopardy 

protections do apply to the vast majority of civil forfeiture cases."). 

Recently, the Ninth Circuit similarly relied on Austin and Halper in holding that c

forfeiture pursuant to 21 U.S.C.A. § 881(a)(6) constitutes punishment which trigger

protections of the Double Jeopardy Clause. United States v. $405,089.23 United Sta

Currency, 33 F.3d 1210 (9th Cir. 1994), opinion amended on denial of rehearing, 56 

(9th Cir. 1995). Cf. United States v. Ursery, F.3d , No. 94-1127, 1995 WL 4

(6th Cir. July 13, 1995) (holding that civil forfeiture pursuant to §881(a)(7) foll

criminal conviction for the same offense constituted double jeopardy). The Ninth C

reasoned that: 

the only fair reading of the Court's decision in Austin is that it resolves th

'punishment' issue with respect to forfeiture cases for purposes of the Double 

Jeopardy Clause as well as the Excessive Fines Clause. In short, if a 

forfeiture constitutes punishment under the Halper criteria, it constitutes 

'punishment' for purposes of both clauses. 

33 F.3d at 1219. Thus, the court held that the government violated the Double Jeop

Clause by obtaining criminal convictions against the defendant and then continuing 
24 

pursue the forfeiture action. The court concluded by discussing the practical effe

Austin on the government's prosecution of cases: 

Because in the case of statutes like those before us a criminal prosecution an

a forfeiture action based on the same offense must now be brought in the same 

proceeding--that is, the same indictment--the government will often be forced 

choose whether to include a criminal forfeiture count in the indictment (and 

thus forego the favorable burdens it would face in the civil forfeiture 

proceeding) or to pursue only the civil forfeiture action (and thus forego the 

opportunity to prosecute the claimants criminally). If, in such cases, the 

government wishes both to obtain forfeiture and to impose other forms of 

criminal punishment, it 'will have to rely to a much greater extent on crimina

forfeiture.' It is entirely reasonable to put the government to this choice. 

After Austin, the law requires it. 

33 F.3d at 1222 (citation omitted). I find the Ninth Circuit's reasoning persuasiv

The government counters that under Austin only civil forfeitures that are found to 

excessive are to be considered punishment. However, the government misstates the ho

in Austin. Austin holds that all forfeitures under §§ 881(a)(4) and (a)(7) are mea

part to punish and therefore can run afoul of the Excessive Fines Clause. Austin, 

S.Ct. at 2812. The Austin court left the issue of whether the forfeiture was 

constitutionally excessive to the district court in the first instance. Id. 

The government also contends that application of Halper's "rational-relation" test-

whether the amount of the sanction appears to be rationally related to the damages 

by the wrongful conduct of the defendant--results in the conclusion that the instan

forfeiture of defendant's property does not constitute punishment. However, in Aus

the Supreme Court found that the "rational-relation" test was inapplicable in the 

forfeiture setting, and, instead, looked to the purpose behind the forfeiture statu

itself, concluding that forfeiture serves in part to punish. 113 S.Ct. at 2812 n.1

agree that in the forfeiture context it does not make sense to compare the amount s
25 

with the government's damages and actual costs; the value of the property seized is 

fortuitous, and thus "any relationship between the Government's actual costs and th

amount of the sanction is merely coincidental." Austin, 113 S.Ct. at 2811-12, 2812 

Moreover, the government has failed to demonstrate on the record how the forfeited 

property relates to its cost of investigation and prosecution of defendant's case.

Finally, the government argues that to the extent that the forfeiture in the instan

can be considered punishment, it is punishment imposed against the property itself 

against the owner of the property. However, the Supreme Court in Austin stressed t

has consistently recognized that in rem forfeiture serves, at least in part, to pun

owner. 113 S.Ct. at 2810. Moreover, the Court made clear that forfeiture of proper

as cars and real estate under the current forfeiture statute is dependent not on th

criminal nature of the property, but on the illegal use their owners make of them. 

Austin, 113 S.Ct. at 2810-11. The same reasoning applies to monies forfeited under 

§881(a)(6). Therefore, it is the owners who are punished by the forfeiture of such 

property. Id. at 2811. 

The Supreme Court in Halper addressed the question of what constitutes punishment f

purposes of the Double Jeopardy Clause. 490 U.S. at 436. The Halper Court announc

the proper inquiry is whether the sanction serves the goals of punishment, i.e. 

retribution or deterrence. Id. at 448. In Austin, the Court held that Congress in

for the forfeiture of property pursuant to §§ 881(a)(4) and (a)(7) to deter and to 

punish. See Austin, 113 S.Ct. at 2811. Similarly, for reasons previously discusse

881(a)(6) was intended to deter and to punish. Therefore, I conclude that forfeitur

pursuant to § 881(a)(6) constitutes punishment for purposes of the Double Jeopardy 
26 

III. 

Having decided that forfeiture pursuant to 21 U.S.C.A. § 881(a)(6) constitutes puni

for purposes of the Double Jeopardy Clause, I turn to the question of whether the s

of the proceedings makes a constitutional difference. In all of the Supreme Court 

previously discussed, the criminal sanction preceded the civil sanction and thus it 

second, civil sanction that has been barred under the Double Jeopardy Clause. By co

in the instant case defendant asks us to apply the Double Jeopardy Clause to bar hi

criminal prosecution. 

The Court noted in Kurth Ranch that the statute at issue did not raise the question 

whether a civil proceeding which is designed to inflict punishment may bar a subseq

criminal proceeding. 114 S.Ct. at 1947 n.21. In his dissent, Justice SCALIA warne

although the majority confronted the relatively easy task of disallowing a civil pe

after a criminal sanction already had been imposed, cases in which criminal penalti

at stake will demand much more of courts. Id. at 1958-59 (SCALIA, J. dissenting). 

Justice SCALIA opined that the order of punishment cannot possibly make a constitut

difference. Id. at 1958. I agree. 

There is no reason why the sequence of the proceedings should make a difference in 

constitutional analysis. In other words, the holdings in Halper and Austin apply e

to cases in which the civil sanction precedes the criminal sanction. "[T]he labels 

'criminal' and 'civil' are not of paramount importance." Halper, 490 U.S. at 447. 

Instead, the critical inquiry remains whether the proceeding constitutes punishment 
27 

double jeopardy purposes and whether the defendant is receiving or is at risk of re

multiple punishments for the same offense. Several other circuits also have held t

order of the proceedings, civil or criminal, does not affect the double jeopardy 

determination. See United States v. Furlett, 974 F.2d 839, 843 n.2 (7th Cir. 1992)

United States v. Sanchez-Escareno, 950 F.2d 193, 200 (5th Cir. 1991), cert. denied, 

U.S. , 113 S.Ct. 123 (1992); United States v. Mayers, 897 F.2d 1126, 1127 (11th 

cert. denied, 498 U.S. 865 (1990); cf. United States v. Ursery, F.3d , No. 9

1995 WL 411189 (6th Cir. July 13, 1995) (finding double jeopardy where civil forfei

preceded criminal prosecution). 

IV. 

I next consider whether it makes a difference in the double jeopardy analysis that 

defendant in the instant case did not participate in the forfeiture proceedings. T

district court's ruling is based on the stated rationale that "jeopardy ha[d] not a

pursuant to the administrative forfeiture proceeding," presumably because defendant 

not contest the forfeiture. United States v. Baird, No. 94-0215, Order, at n.1 (E.

March 14, 1995). Similarly, the majority concludes that administrative forfeiture c

never constitute punishment for purposes of the Double Jeopardy Clause because: (1) 

property is ownerless, i.e. no one has made a claim and/or filed a cost bond, and t

taking of ownerless property punishes no one; and (2) administrative forfeiture doe

place in jeopardy the person whose property is so forfeited, because it does not in

judicial proceeding. 
28 

I believe that, if a defendant can prove that he was the owner of the property seiz

participation in the forfeiture proceedings is not and should not be a precondition 

claim of double jeopardy. A defendant may choose not to participate because the 

allegations are true, or for fear that a claim of ownership could be utilized again

in the criminal proceeding. For instance, the government alleged in this case that 

defendant owned the seized property and that the property was used or acquired as a 

of a drug-related offense. If the allegations are true, what purpose would be serv

defendant's participation in the forfeiture proceeding? 

Moreover, a claim of ownership in the forfeiture proceeding conceivably could be us

against defendant in the criminal proceeding. Thus, requiring defendant to particip

the forfeiture proceeding as a precondition to a double jeopardy claim would force 

defendant to choose between waiving his privilege against self-incrimination or wai

his right to assert a double jeopardy violation. The Supreme Court stressed in Sim

United States, 390 U.S. 377 (1968), that one constitutional right need not be surre

in order to assert another. Id. at 394. In Simmons, the Court found that an 

unconstitutional dilemma was created when defendant was required to surrender his F

Amendment privilege against self-incrimination in order to establish his standing t

assert an arguably valid Fourth Amendment claim. Id. The Court resolved the dilem

holding that: "when a defendant testifies in support of a motion to suppress eviden

Fourth Amendment grounds, his testimony may not thereafter be admitted against him 

trial." Id. Similarly, in the instant case, we refuse to subject defendant to such 

unconstitutional dilemma by requiring him to intervene in the forfeiture proceeding 

order to preserve his rights under the Double Jeopardy Clause. The issue should b
29 

whether defendant was the owner, not whether he filed a proper and timely claim of 

ownership in the forfeiture proceeding. He is punished if his property is forfeite

irrespective of whether or not he participated. Hence, there should be no distinct

between administrative and civil forfeiture; in either instance, a defendant must 

establish ownership and punishment before he can claim double jeopardy. See also S

supra, ¶ 12.10, at 12-141 n.33.1 ("[A] rule which would require property owners to 

claim and go through the motions of contesting a civil forfeiture merely to preserv

double jeopardy issue has little to recommend it. Tens of thousands of uncontested 

forfeitures would soon find their way into court."). 

The majority relies on Serfass v. United States, 420 U.S. 377 (1975), in holding th

Double Jeopardy Clause requires that defendant participate in two judicial proceedi

Maj. op. at [Typescript at 16 n.11]. However, Serfass, in contrast to the instan

did not involve a "multiple punishments" claim and does not stand for the propositi

multiple judicial proceedings are a precondition to all double jeopardy claims. In 

case, defendant claims that he was punished by the forfeiture of his monies and tha

on the instant indictment would subject him to multiple punishments for the same of

The issue is thus whether defendant is at risk of being twice punished for the same 

offense, not whether defendant is at risk of being twice tried. 

 Lastly, in United States v. Torres, 28 F.3d 1463 (7th Cir. 1994), the Seventh Cir

held that the administrative forfeiture of monies did not bar defendant's sentence 

imprisonment. I am unpersuaded by the Torres decision to the extent that it holds 

unless a defendant participates in the forfeiture proceeding, he cannot claim doubl

jeopardy. Additionally, this case is factually distinguishable from Torres. Defen
30 

Torres and Olivares were arrested and their cash seized when they attempted to buy 

from "sellers" who turned out to be federal agents. Torres, 28 F.3d at 1464. The 

were administratively forfeited, and subsequently defendant Torres was convicted in 

separate criminal proceeding. Id. On appeal, Torres argued that his criminal sent

was barred by the Double Jeopardy Clause. Id. In rejecting Torres's double jeopar

claim, the court stressed that it was not clear who owned the forfeited funds and 

speculated that "perhaps he [Torres] was just a courier, making the buy on behalf o

undisclosed principal." Id. at 1466. In contrast, the ownership of the funds in th

instant case is not honestly contested. 

V. 

Assuming that defendant can establish that he was the owner of the forfeited proper

nature of the property forfeited should affect one's ability to claim double jeopar

For illustrative purposes, I will divide property subject to forfeiture under §881(

two categories.0

 

The first category includes property which is dangerous and/or illegal per se and t

subject to destruction or removal from society. The forfeiture of such property can

constitute punishment for purposes of the Double Jeopardy Clause because its forfei

may be characterized as "remedial." This category includes: 

 

0

Moreover, we need not even consider whether confiscating property that a defendant 

not have title to, i.e. stolen property, is punishment for double jeopardy purposes

recognize that the government can immediately confiscate such property and is not r

to institute forfeiture proceedings. 
31 

all controlled substances which have been manufactured, distributed, dispensed

acquired, § (a)(1); 

all raw materials, products, and equipment which are used in manufacturing any con

substance, § (a)(2); 

all property which is used as a container, § (a)(3); 

all books, records, and research, including formulas, microfilm, tapes, and da

which are used in violation of this subchapter, § (a)(5); 

all controlled substances which have been possessed in violation of this 

subchapter, § (a)(8); 

all listed chemicals, all drug manufacturing equipment, all tableting machines

all encapsulating machines, and all gelatin capsules, § (a)(9); 

any drug paraphernalia, § (a)(10); 

any firearm, § (a)(11). 

21 U.S.C.A. § 881(a) (West 1983 & Supp. 1995). 

The items included in the first category are either illegal per se and/or dangerous 

society in general or to law enforcement agents in particular. The Austin Court co

that "the forfeiture of contraband itself may be characterized as remedial because 

removes dangerous or illegal items from society." 113 S.Ct. at 2811 (citing United 

v. One Assortment of 89 Firearms, 465 U.S. 354 (1984), which involved forfeiture of 

firearms). Indeed, Congress recognized that such property is dangerous by providin

its summary forfeiture and destruction. Specifically, section 881(f)(1) (West Supp

provides that all controlled substances, all raw materials, and any equipment or co

subject to forfeiture, which cannot be separated safely from such raw material or p

shall be deemed contraband and summarily forfeited to the United States. Section 88

(West Supp. 1995) allows the government to destroy such property. See also H.R. Re
32 

101-681(I), 101st Cong., 2d Sess. (1990) reprinted in 1990 U.S.C.C.A.N. 6472, 6506 

(providing for summary forfeiture and destruction of dangerous substances and the 

equipment or containers from which these substances cannot be safely separated "bec

the dangers they create for law enforcement agents"). Similarly, Congress provided 

the selling and interstate transport of drug paraphernalia is illegal, § 863(a) (We

Supp. 1995), and that drug paraphernalia is subject to seizure, forfeiture, and 

destruction, § 863(c) (West Supp. 1995). 

The second category consists of property forfeited pursuant to §§881(a)(4), (6), (

such as boats, planes, cars, real property, and monies, which courts have distingui

"derivative contraband." Derivative contraband has been defined as articles which 

inherently illegal, but are used in an unlawful manner. See United States v. Farre

F.2d 1341, 1344 (D.C. Cir. 1979) (monies used in drug transaction are derivative 

contraband). The forfeiture of such property may serve as a basis for a double jeo

claim because, as previously discussed, the forfeiture of property pursuant to §§ 

881(a)(4), (6), and (7) is punitive in nature. 

VI. 

 

Finally, I pose the question whether the source of the property seized should affec

determination of double jeopardy. Two scenarios illustrate my concerns: In the fi

scenario, a person acquires a house or car by honest means. If that property is fo

because it is utilized in connection with criminal activity, the owner is clearly 

punished. Under such circumstances, a prior or subsequent criminal proceeding base
33 

the same charges, which justified the forfeiture, would implicate double jeopardy. 

concern is with the second scenario, in which a defendant acquires property by dish

means. For instance, monies passed to a person in a drug sale are immediately seiz

ultimately forfeited. I have difficulty in concluding that such forfeiture, i.e. t

seizure of monies derived from an illegal transaction, bars criminal prosecution fo

drug sale. I acknowledge that the monies seized technically are the property of th

dealer, and, thus, their forfeiture constitutes punishment in the ordinary sense of 

word; but I ponder whether it does or should constitute punishment for double jeopa

purposes. The issue is further complicated if the forfeiture involves property acq

from the expenditure of monies illegally obtained--the indirect rather than the dir

acquisitions of illegal activity. 

Since the majority does not find double jeopardy because of the nature of the forfe

proceeding, this distinction is not addressed. However, I find it worthy of serious 

consideration. Moreover, I recognize that if my distinction were to be adopted, a 

secondary issue would have to be resolved concerning the applicable burden of proof 

where to place it. 

VII. 

 

I would vacate the judgment of the district court and remand for further proceeding

consistent with this opinion.