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Recent Rulings on Forfeiture


September-October 1994

As noted in the last issue of NewsBriefs, there has been a flurry of recent activity in the application of the Fifth Amendment Double Jeopardy Clause in asset forfeiture cases.

Citing double jeopardy, the U.S. Court of Appeals for the 9th Circuit (sitting in San Francisco) overturned a federal civil forfeiture when the property owner had already been convicted on a criminal charge (U.S. v. $405,089.23 in U.S. Currency, CA9, No. 93-55947, Sept. 6, 1994 (94 WL 476736)). Further, double jeopardy still applies in the case although the forfeiture was of proceeds from a drug transaction and not of property used in the facilitation of the crime.

The civil forfeiture is punishment, the court found, and the defendant cannot be punished again after a criminal trial. In effect this ruling means that prosecutors must choose between bringing criminal or civil forfeiture proceedings against a defendant. (See also Drug Enforcement Report, Oct. 11, 1994, p. 1; BNA Criminal Practice Manual, October 12, 1994, p. 495.)

In U.S. v. McCaslin (W.D.WA., No. CR90-165WD, Sept. 2, 1994), the court overturned a criminal conviction after a civil forfeiture had been obtained against the defendant. The court found the criminal conviction constituted a second conviction in violation of the double jeopardy prohibition.

In another forfeiture case, U.S. v. Two Parcels of Property Located at 19 and 25 Castel St., New Haven, Conn. (Gonzalez) (CA 2, Nos. 93-6109 etc., July 18, 1994; 55 CrL 1433, Aug. 17, 1994), the court ruled that parents did not do enough to stop their children from involvement with drugs to qualify as "innocent owners." A property owner can claim to have tried all reasonable measures to stop the unlawful activity and receive protection from forfeiture. Although the parents in this case asked the children to stop using drugs, sent the children away for a period of time, and told the police that drugs were being sold in the area, the court found that they did not do enough to receive the protection. According to the court, the parents should have searched the property for drugs, asked the police to handle the children's drug dealing, or demanded that the children leave the property.