Double Jeopardy Prohibition Implications for Forfeiture Cases

FORFEITURE January 1995

Legal Editor Joan L. Cobb summarizes recent developments in the fast-moving area of the application of double jeopardy prohibition to civil forfeiture cases in the Dec. 7, 1994 issue of BNA Criminal Practice Manual (Joan L. Cobb, "Forfeiture Decision Generates Veritable Explosion of Relief," BNA Criminal Practice Manual, Dec. 7, 1994, p. 590-598). For a copy of this article, call 1-800-255-8131, or in the District of Columbia, 202-785-6884, or write BNA Criminal Practice Manual, Attn. B. Armentrout, 1231 25th Street, NW, Washington, DC 20037.

Recently, the U.S. Supreme Court declined to hear argument in a case testing the application of the double jeopardy prohibition in an asset forfeiture case ("Supreme Court Refuses Review of Major Asset Forfeiture Case," Drug Enforcement Report, Dec. 23, 1994, p. 1).

In 1992, Jerry Wayne Tilley and Susan Wells Tilley were charged with marijuana trafficking. Prosecutors had already moved in a civil motion for the forfeiture of $650,000 in drug proceeds. After the forfeiture, the defense argued, the criminal proceeding should be dropped (U.S. v. Tilley, 18 F.3d 295 (5th Cir. 1994)).

In March 1994 the Fifth Circuit refused to dismiss the criminal proceedings against the Tilleys, saying that the forfeiture was "remedial," not "punitive," and would be used to pay for the impact of drug trafficking on the judicial system.

There is a conflict among the lower courts that have looked at this issue. In U.S. v. $405,089.23 in U.S. Currency, the Ninth Circuit U.S. Court of Appeals ruled that forfeiture is a second punishment for double jeopardy purposes when the defendant had already been convicted in a criminal case (U.S. v. $405,089.23 in U.S. Currency, No. 93-55947, 33 F.3d 1210 (9th Cir. 1994)). At least a half dozen district court cases in the 9th Cir. have followed that reasoning. Earlier cases in the Second and Eleventh Circuits had been decided differently.

[The Supreme Court may be waiting for additional courts to analyze the law on this issue or for a case with a factual pattern that it thinks is more favorable for the decision it wants to reach. The Court may prefer to find a case to affirm rather than a case to reverse. In 1972 and 1984, the Supreme Court had the opportunity but did not apply a double jeopardy analysis to civil forfeitures and related criminal prosecutions. But three Supreme Court cases since 1989 have pointed in the new direction. -- EES]