Double Jeopardy Applied in Texas Asset Forfeiture Case

FORFEITURE August 1994

The Texas 14th Court of Appeals held that a criminal trial of a drug offender after civil forfeiture of his assets was barred under double jeopardy (Fant v. State, A14-94-00013-CR (July 21, 1994); Gary Taylor, National Law Journal, August 22, 1994, A10).

Defense attorneys say that the Texas decision is a sign of things to come. They note that recent Congressional and Department of Justice movements to reform forfeiture procedures indicates a new attitude toward protecting people from overly zealous prosecutors and police. "This decision was inevitable," says Jim Lavine, vice chairman of the Task Force on Forfeiture Abuse of the National Association of Criminal Defense Lawyers. "It's not a surprise if you follow the history of the cases and the examples of abuse the courts have been seeing."

Allan Curry, the prosecutor appealing the decision in Fant, said that the case could force prosecutors to choose between prosecuting a defendant or confiscating his assets. This could lead to a dual standard where wealthy defendants would have their assets confiscated, but avoid incarceration, and poor defendants would be incarcerated, due to the lack of sizable assets that motivate law enforcement to conduct forfeiture proceedings.

The Supreme Court has agreed to hear a Federal forfeiture case from the 5th Circuit that held contrary to Fant on the jeopardy question (U.S. v. Tilley, 18 F. 3d 295). Mr. Curry said that he believes Fant is the first state case in the nation to hold that forfeiture was a punishment subject to jeopardy limitations.

Other recent rulings applying the protection of double jeopardy prohibition to asset forfeiture cases: U.S. v. $405, 089.23, 94 WL 476736 (9th Cir. Sept. 6, 1994); U.S. v. McCaslin, W.D.WA. No. CR90-165WD (Sept. 2, 1994); U.S. v. Torres, 28 F.3d 1463 1994 WL 328567 (7th Cir. (Ill.) 1994).