Supreme Court to Hear Double Jeopardy Forfeiture Cases

IN THE COURTS February 1996

On January 12, the U.S. Supreme Court announced it will decide whether criminal proceedings should be prohibited after a defendant has been subject to a civil forfeiture (Frank J. Murray, "Supreme Court Accepts Drug Forfeiture Cases," Washington Times, January 13, 1996, p. 1).

The Court announced it had granted cert in three cases:

• U.S. v. $405,089.23 in U.S. Currency, 33 F.3d 1210 (9th Cir. 1994), rehearing en banc denied (9th Cir. May 30, 1995); 55 CrL 1569 (known as "405"). James Wren and Charles Arlt were arrested and charged with drug conspiracy and money laundering resulting from a methamphetamine operation. Five days after they were indicted, the government initiated civil forfeiture action against them, seeking to seize funds in numerous bank accounts, many transportation vehicles, and silver bars. The court stayed the forfeiture until the resolution of the criminal case. On March 27, 1992, Arlt and Wren were convicted. On December 4, 1992, the government filed a motion for summary judgment for the civil forfeiture. The following April, a district court, other than the one in which they were tried, ordered the forfeiture, citing Arlt and Wren's criminal convictions as establishing probable cause. Arlt and Wren appealed the forfeiture on double jeopardy and excessive fines grounds. The U.S. Court of Appeals for the Ninth Circuit ruled that the civil forfeiture was a violation of the double jeopardy prohibition on the ground that the forfeiture and conviction were separate punishments for the same offenses. The Ninth Circuit reasoned there was a significant time lapse between the conviction and the forfeiture action and the two proceedings had different judges, establishing two separate proceedings for the same offense, which is the essence of a double jeopardy violation.
  
  
• Degen v. U.S., No. 95-173, see U.S. v. Real Property Located at Incline Village, et al, 47 F.3d 1511 (9th Cir. 1995); 755 F.Supp. 308 (D.Nev. 1990). The government initiated civil forfeiture action for several million dollars of personal items and property belonging to Brian J. Degen and his wife Karyn Degen in 1989. A Nevada grand jury had indicted him on numerous drug trafficking and money laundering charges, claiming that he was a player in a massive 20-year marijuana smuggling operation headed by Ciro Mancuso (see "Defense Attorney Acquitted of Conspiracy Charges," NewsBriefs, April 1995, p. 13; "Marijuana Kingpin Informer Gets 9 Years, Keeps Millions," NewsBriefs, October 1995, p. 5). Just before the indictment, Degen moved to Switzerland, where he is a citizen. The extradition treaty between Switzerland and the U.S. does not require a state to extradite its own citizens. But even when Degen heard about the indictment, he refused to return to the U.S. The government moved for a summary judgment on the forfeiture in May 1990, and the district court found that Mr. Degen could not make a claim to retain the property because of the "disentitlement doctrine" (persons deemed fugitives by the court lose the right to "call upon the resources of the courts" in criminal and other legal proceedings). The government filed civil forfeiture claims against Mrs. Degen's property again in December 1992, accompanied by affidavits from members of the drug ring about the extent of the operation and that Mr. Degen had no legitimate income for long periods of time. After numerous extensions from the court, Mrs. Degen failed to file a response to the summary judgment motion, and the court ordered the forfeiture. The U.S. Court of Appeals for the Ninth Circuit upheld the summary judgment of the lower court. The Ninth Circuit also responded to new issues the Degens filed claiming double jeopardy under the same conditions in "405." The Court deemed their "argument to be utterly without merit." It found that Mr. Degen was indicted but was never arrested or stood trial. Mrs. Degen was never indicted, tried or convicted of any offense related to the forfeiture. "So far as Karyn Degen is concerned, the suggestion that she has been placed in double jeopardy comes dangerously close to being frivolous." Mr. Degen has asked the Supreme Court to decide if his civil forfeiture defense should be allowed notwithstanding the fugitive disentitlement doctrine. The court may look at whether the disentitlement doctrine is discretionary or not.
  
  
• U.S. v. Ursery, 59 F.3d 568 (6th Cir. 1995). Acting on a tip from his son's ex-fiancee, police raided Guy Jerome Ursery's farm and arrested him for manufacture of marijuana. Civil forfeiture was initiated on September 30, 1992 and Ursery entered into a consent agreement with the government on May 24, 1993 to forfeit $13,250, which was paid on July 17, 1993. Ursery was indicted on February 5, 1993 and his trial started on June 30, 1993, with a guilty verdict delivered on July 2. There was no communication between the government attorneys prosecuting the forfeiture and those prosecuting the indictment. Post-conviction, Ursery appealed his case on double jeopardy grounds. The U.S. Court of Appeals for the Sixth Circuit found (in a 2-1 opinion) that the criminal conviction constituted double jeopardy since Ursery had already been punished for the crime through the forfeiture in a separate proceeding. The dissent argued that the facts of this case constituted a "single coordinated proceeding," and that the government was "not acting to pursue a second punishment ... " The dissent also argues that the forfeiture and conviction were for separate offenses.

"405" and Ursery have been consolidated, and arguments in all three cases should be held in April, with a decision expected by June. Earlier in the session, the Court heard arguments on the "innocent owner" defense to forfeiture (see "Supreme Court Rules on Gun 'Use' During Drug Offense, Hears Arguments in Sentencing, Forfeiture Issues," NewsBriefs, January 1996).