Supreme Court Hears Landmark Forfeiture Cases, Rules on Double Jeopardy and Conspiracy, Hears Arguments About Automobile Searches and Traffic Stops |
IN THE COURTSMay 1996 |
The U.S. Supreme Court has heard some key cases for drug policy in the current session, including a case testing the government's forfeiture powers.
On April 17, the Supreme Court heard argument in two cases testing the ability of the government to pursue both criminal proceedings and civil forfeiture against a defendant (59 CrL 3033; U.S. v. $405,089.23 in U.S. Currency, No. 95-346, 33 F. 3d 1210 (9th Cir. 1994), rehearing en banc denied (9th Cir. May 30, 1995); 55 CrL 1569 (known as "405"); U.S. v. Ursery, No. 95-345, 59 F. 3d 568 (6th Cir 1995); see "Supreme Court to Hear Double Jeopardy Forfeiture Cases," NewsBriefs, February 1996).
In U.S. v. $405,089.23 in U.S. Currency, 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. The court stayed the forfeiture action, and the defendants were convicted in March 1992. In December 1992, the government filed for summary judgment in the forfeiture. A district court other than the one in which they were convicted ordered the forfeiture, citing the criminal convictions as establishing probable cause. The defendants appealed the forfeiture, arguing double jeopardy and excessive fines. The Ninth Circuit U.S. Court of Appeals ruled that the forfeiture did constitute double jeopardy because of the time lapse between the conviction and the forfeiture action and the fact that the two proceedings had two different judges.
In the other case, police raided Guy Jerome Ursery's farm and arrested him for manufacture of marijuana. Civil forfeiture was initiated in September 1992 and Ursery entered into a consent agreement with the government in May 1993. In the agreement, Ursery forfeited $13,250 on July 17, 1993. Ursery's criminal trial started in June and he was convicted on July 3, 1993. Post-conviction, he 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.
Deputy Solicitor General Michael R. Dreeben argued that a civil forfeiture constitutes double jeopardy only if it occurs after a criminal proceeding, even if it is considered punishment for the purposes of the Excessive Fines Clause. Justice Antonin Scalia responded that he could not understand how it would be within reason that action considered punishment under the Eighth Amendment would not be punishment under the Fifth Amendment. Dreeben pointed out that Supreme Court precedent would appear to make such a disjunction.
Dreeben pointed to a 1931 Supreme Court ruling in Various Items of Personal Property v. U.S., 282 U.S. 577 (1931), which found that defendants convicted of fraud against the government for taxes on alcoholic beverages would not prohibit civil proceedings against them. Justice Breyer, Justice Scalia, and Dreeben debated possible purposes for civil forfeiture other than punishment.
Jeffry Finer of Spokane, Washington, argued on behalf of Guy Ursery. Before he could begin his argument, Chief Justice William Rehnquist asked him why he had not addressed the government's arguments about the case Various Items in his brief. Finer said that even though the case was not overruled by a later case, it does not apply because current cases are decided on different criteria. The justices asked Finer about the various purposes of punishment as they relate to determining double jeopardy. Justice Breyer asked Finer how courts should determine whether the civil forfeiture and the criminal trial are separate proceedings.
Rehnquist also quizzed Lawrence Robbins of Washington, DC, counsel for the defendants in "405," on the Various Items case. Robbins said the case did not matter to the cases at hand because forfeiture was treated in a different way in 1931 than it is now. He reiterated a point made earlier by Scalia that it is irrational for civil forfeiture to be punishment for Eighth Amendment purposes and not for Fifth Amendment purposes.
On March 27 the U.S. Supreme Court ruled unanimously that punishment for both conspiracy and continuing criminal enterprise convictions resulting from the same course of conduct constitutes a violation of the Fifth Amendment's double jeopardy prohibition (Rutledge v. U.S., No. 94-8769, 58 CrL 2075 (U.S. March 27, 1996)).
Tommy L. Rutledge led a cocaine distribution ring out of Youngstown, Illinois. He was convicted of conspiring to distribute cocaine, conducting a criminal enterprise (CCE), distribution of cocaine, possession of a firearm by a felon, and using or carrying a firearm during the commission of a drug felony.
The district court sentenced Rutledge to a life sentence for the CCE offense and a life sentence for the conspiracy charge, which was to be served concurrently to the CCE offense as it was the lesser of the two charges. Under each of the life sentences, there was no chance for parole. The U.S. Court of Appeals for the Seventh Circuit ruled that there were no double jeopardy problems if the judge ordered the sentences to be served concurrently.
During oral arguments, Barry Levenstam, counsel for Rutledge, argued that the two charges were based on the same conduct, and to be convicted of the two was a stigma to the defendant. James Feldman, Assistant to the Solicitor General, argued that if a defendant is convicted of two offenses "he gets a windfall."
Justice Stevens, in the opinion of the court, wrote that the district court should not have sentenced Rutledge to the two concurrent life sentences. Congress did not intend for defendants to be punished twice for the same conduct. Stevens wrote that the charge of continuing a criminal enterprise necessarily includes conspiracy.
The court cited its ruling in Ball v. U.S., 470 U.S. 856 (1985), in which it ruled that a conviction for an offense is punishment in and of itself. Stevens also cited the Court's ruling in Jeffers v. U.S., 432 U.S. 137 (1977), which found that concurrent sentences for both conspiracy and CCE convictions can be imposed, as long as the total punishment is no greater than the punishment for the greater offense. That ruling also established that conspiracy was a lesser included offense of CCE.
Even though the two sentences were being served concurrently, Stevens noted that Rutledge was assessed a $50 fine for each of the offenses, an indication that the court viewed the two convictions as separate even though they were based on the same conduct. The Court ordered that one of the convictions and the resulting sentence must be reversed.
The decision resolves a split in the circuits on the issue. Most circuits (First, Fourth, Fifth, Sixth, Eighth, Ninth, Tenth, Eleventh, District of Columbia) have decided that only one judgment should be issued when the defendant has been convicted of both charges. The Second and the Third Circuits have allowed two judgments on the two charges but only one sentence.
On March 26, the Supreme Court heard arguments in a case testing the level of review courts of appeals should be expected to undertake in a case involving a police search of property without a search warrant (U.S. v. Ornelas-Ledesma, 16 F. 3d 714 (7th Cir. 1994); 59 CrL 3004).
Saul Ornelas and Ismael Ornelas-Ledesma were driving a car with California license plates through Milwaukee and stopped to check into a motel. When police ran the license plate of the car, the registration showed that it belonged to a person with a record of drug distribution.
Police stopped the car, and Ornelas and Ornelas-Ledesma allowed police to search the vehicle. One of the officers found 4.4 pounds of cocaine behind a loose door panel. The two pleaded guilty, but later argued that the cocaine should not be used as evidence because the search went beyond the scope of the consent they gave.
The U.S. Court of Appeals for the Seventh Circuit ordered the trial judge to decide if the officers, acting on the factors of a "drug courier profile," had probable cause to search behind the loose panel of the car. The judge did find that there was probable cause, and the Seventh Circuit upheld the convictions.
The issue argued before the Supreme Court concerned the level of proof needed to provoke a new examination of the case by the court of appeals. Robert G. LeBell, arguing for the defendants, said that the court of appeals should have reviewed the issues of law in the case itself instead of sending it back to the district court judge.
In an unusual situation, counsel for the government also argued that the court of appeals should have reviewed this case. Assistant to the Solicitor General Cornelia T.L. Pillard argued that it is the duty of courts of appeals to make determinations of law, as was necessary in this case.
Because the government and the defense were in agreement, the Supreme Court appointed an attorney to argue for the position of the Seventh Circuit in sending the case back to the district judge for review. Washington, DC lawyer Peter D. Isakoff argued that only in cases in which the district court made a clear error should a court of appeals review the case.
On April 17, the Supreme Court heard arguments in a case testing the parameters of probable cause for traffic stops and searches (Whren v. U.S., No. 95-5841, 53 F. 3d 371, 59 CrL 3024 (DC Cir. 1995)).
Plainclothes officers in unmarked cars were patrolling an area known for drug dealing when they saw a car stopped at a stop sign for 20 seconds. The car turned without signalling and accelerated at what the officers described as a high rate of speed. When the officers stopped the car, they saw the occupants trying to hide what appeared to be bags of crack cocaine.
The issue in the case is whether the officers had the right to stop the car. Would other officers without the same presuppositions (being vice officers in an area known for drug trafficking) have made the same traffic stop given the same set of circumstances? Were the officers using the traffic violation as an excuse to search a car they suspected contained drugs? Under what conditions is a traffic stop a pretext for making a warrantless search and thus a violation of the Fourth Amendment?
The U.S. Court of Appeals for the District of Columbia ruled that the search was constitutional because a "reasonable officer" in the same circumstances could have made the same stop. The defendants had argued that courts should use a stricter threshold: would a reasonable officer in the same circumstances have made the same stop?
Arguing for defendant Michael Whren, Assistant Public Defender Lisa Burget Wright argued that although probable cause might exist, it does not automatically render a search reasonable. Wright pointed out that under that police department's policy, undercover officers are only allowed to make traffic stops in the most extreme violations. Chief Justice William Rehnquist asked if a violation of a policy constitutes a violation of the Fourth Amendment. Wright replied that the Supreme Court has relied on police departments' policies for determinations of the legality of searches in the past.
Assistant to the Solicitor General James A. Feldman argued for the government that there are conditions other than a police departments' policy for determining if a stop violates the Fourth Amendment. He said he did not believe any traffic stops were pretextual.