Ninth Circuit Refuses to Revisit Key Forfeiture Double Jeopardy Case

FORFEITURE September 1995

On May 30, the U.S. Court of Appeals for the Ninth Circuit announced it will not reconsider a ruling that held that civil forfeitures following criminal convictions violate the Fifth Amendment's Double Jeopardy prohibition ("CA9 Declines to Reconsider Controversial Forfeiture Case," BNA Criminal Practice Manual, June 21, 1995, p. 316-317; "Drug Agents in Western U.S. Struggle With Forfeiture Cases," Drug Enforcement Report, June 8, 1995, p. 1).

A majority of the Ninth Circuit judges voted against rehearing U.S. v. $405,089.23 in U.S. Currency (CA9, No. 93-55947, May 30, 1995; see 33 F.3d 1210).

Last fall, a three-judge panel following the U.S. Supreme Court's analysis that civil forfeiture is punishment ruled that a defendant cannot be punished again after a criminal trial. In effect, the ruling means that prosecutors must choose between bringing criminal charges or civil forfeiture proceedings against a defendant (see "Recent Rulings on Forfeiture," NewsBriefs, September-October 1994, p. 2).

Stefan Casella, deputy director of the Asset Forfeiture Office at the Department of Justice said that the Ninth Circuit has received about 250 petitions from prisoners seeking to have their sentences vacated because of "405." He said about 100 defendants have made motions to have their indictments dismissed under the ruling.

Seven of the twenty-eight judges who voted on May 30 dissented, arguing that the case deserves rehearing because of its importance. Circuit Judge Pamela Ann Rymer wrote in the dissenting opinion that the case "could free hundreds of drug dealers across the western United States." She warned that the case could mean that defendants whose assets were seized would not face criminal proceedings.

The U.S. Attorney's Office in Los Angeles and the Department of Justice had urged the Ninth Circuit to rehear the case.

Nora Manella, U.S. Attorney in Los Angeles, said her office is using criminal forfeiture as much as possible to avoid double jeopardy problems. "We want to be sure we don't get into a '405' bind," she said. "So we're not going to do any civil forfeitures, or, in some cases, administrative forfeitures where it could hurt us in a criminal case."