Fifth Circuit Rules that Forfeiture is Punishment

FORFEITURE January 1996

The Fifth Circuit U.S. Court of Appeals ruled on November 21 that forfeiture is punishment for purposes of the Fifth Amendment's Double Jeopardy prohibition, joining the Sixth and the Ninth Circuits (U.S. v. Perez, No. 94-60788, 70 F.3d 345 (5th Cir. 1995)).

Gloria Perez was arrested after Border Patrol agents found 96 kilograms of marijuana in her car. After Perez was indicted, the government moved to seize her car, which she forfeited. She then filed for dismissal of the indictment.

The court looked to U.S. Supreme Court decisions in U.S. v. Halper, 490 U.S. 435 (1989) and Austin v. U.S., 113 S. Ct. 2801 (1993), finding that both the forfeiture and the prosecution were meant to punish Perez for the same offense. In a concurring opinion, Judge Carolyn Dineen King noted that the circumstances of the Perez case are common, "and the practical consequences [of double jeopardy applications] to the administration of justice are enormous." She recommended that the Supreme Court revisit the area of forfeiture and its previous decisions.

The Sixth and the Ninth Circuits made a similar rulings in U.S. v. $405,089.23, No. 93-55947, 33 F.3d 1210 (9th Cir. 1994); rehearing denied 56 F.3d 41 (9th Cir. (en banc) 1995) and U.S. v. Ursery, 59 F.3d 568 (6th Cir. 1995). On September 27, the Sixth Circuit clarified its ruling in Ursery, finding that seizure of property purchased with drug proceeds cannot qualify as punishment for double jeopardy purposes (U.S. v. Salinas, No. 95-1450, 65 F.3d 551 (6th Cir. 1995)).