Sixth Circuit Joins Ninth in Civil Forfeiture Double Jeopardy Ruling

FORFEITURE October 1995

On July 13, the U.S. Court of Appeals for the Sixth Circuit ruled that forfeiture of property is considered punishment for the purposes of the Fifth Amendment's prohibition against double jeopardy (U.S. v. Ursery, 57 CrL 1361, No. 94-1127, 59 F.3d 568, (6th Cir. 1995)).

With this ruling, the Sixth Circuit joins the Ninth in its ruling in U.S. v. $405,089.23 in U.S. Currency, 33 F.3d 1210, 55 CrL 1569, (9th Cir. 1994) (for background on "405," see "Ninth Circuit Refuses to Revisit Key Forfeiture Double Jeopardy Case," NewsBriefs, September 1995).

142 marijuana plants were seized from the home of Guy Jerome Ursery. Ursery and his wife paid $13,250.00 on June 17, 1993 in a forfeiture agreement with the government. Ursery had been charged with one count of manufacture of marijuana. On June 30, 1994, his criminal trial started.

The court ruled that it had to decide on three issues related to the double jeopardy issue: whether the civil forfeiture was punishment under the meaning of the Fifth Amendment, whether the forfeiture and criminal proceeding were for the same offense, and whether the forfeiture and criminal prosecution were separate proceedings.

The court ruled that forfeiture is punishment, and that the forfeiture and the criminal prosecution were for the same offense. It found that the forfeiture and the criminal proceedings had different prosecutors and judges, and were initiated four months apart, constituting different proceedings.

While the Sixth Circuit acknowledged the Ninth Circuit's ruling, it found the Ninth Circuit's conditions to determine double jeopardy too stringent:

It is merely our view that in so far as the existence of a "single, coordinated proceeding" could arguably satisfy the requirements of the Double Jeopardy Clause ... the facts in this case fail to reveal such a single, coordinated proceeding.