Question;Case Analysis (based on United States v. Falkowski on p. 348)1. Summarize the facts that led to the defendant?s claim that he was subjected to double jeopardy.2. What was (were) the legal question(s) before the court?3. Based on what you read in this case, what is civil forfeiture?In this criminal case, defendant Falkowski was indicted on charges related to the cultivation and distribution of marijuana. The day following the criminal indictment, the government filed civil forfeiture proceedings against real property obviously used in the commission of the crime. The sequence of the events following is important. On October 14, defendant was arrested. On November 5, the United States sought entry of default in the civil forfeiture case. On November 13, defendant pleaded guilty to some of the criminal charges pursuant to a plea agreement. On December 2, the government made a second request to enter default in the civil forfeiture action. On December 14, the clerk entered default in the civil forfeiture proceeding. On February 2, the United States moved for a decree of forfeiture. On July 28, defendant was sentenced in the criminal case. Defendant appealed the criminal conviction, claiming that the civil forfeiture and criminal sentence constituted double jeopardy and because the sentence was the last to be imposed, the conviction must be set aside.The court stated that there were three reasons why the attack on the criminal case must fail. First, jeopardy attached in the criminal case before the default judgment was entered in the civil proceeding. Second, by entering a plea of guilty, the defendant waived or forfeited the right to collaterally attack his conviction and sentence on grounds of double jeopardy. Third, the civil forfeiture was not based on the same offense for which defendant was criminally prosecuted.OpinionStatement of Relevant FactsOn October 6, 1992, Falkowski and co-defendants were indicted on charges related to the cultivation and distribution of marijuana in the Fairbanks area. Falkowski was charged as part of a continuing conspiracy headed by John Collette, and with conducting a continuing criminal enterprise and related offenses. The indictment contained criminal forfeiture counts addressing property in which Falkowski was alleged to claim an interest.On October 7, 1992, the day following the return of the indictment, the government filed civil forfeiture proceedings against real property located at 1804 Caribou Way in Fairbanks, Alaska. This property had also been listed in the indictment. The criminal case was brought in Anchorage while the civil case proceeded in Fairbanks. Falkowski was served but did not file a claim regarding the civil forfeiture of the Caribou Way property, while others with interest in the real estate did file claims.On October 14, 1992, Falkowski was arrested and simultaneously served with notice of the arrest of the property at 1804 Caribou Way.On November 5, 1992, the United States sought entry of default against Falkowski in the civil forfeiture case. The request made no reference to the pending criminal prosecution.On November 13, 1992, Falkowski pled guilty to some of the charges in the indictment pursuant to a plea agreement anticipating that the other counts would be dismissed. The charges to which Falkowski pled included conducting a continuing criminal enterprise, money laundering, and investing drug proceeds in a business enterprise. As part of the plea agreement, Falkowski agreed to forfeit any property (1) which he acquired as a result of drug trafficking and (2) to assist the government in locating and seizing any such property. The plea agreement did not specify whether the property at 1804 Caribou Way would be forfeited civilly or criminally. In fact, the plea agreement made no specific reference to the Caribou Way property or the civil forfeiture proceeding.On December 2, 1992, the government made a second request to enter default against Falkowski in the civil forfeiture action. On December 14, 1992, the clerk entered a default against all defendants or claimants in the for feiture action who had not filed claims, answers or responses. The defaulted parties included Falkowski.On February 2, 1993, the United States moved for a decree of forfeiture, relying in part on the declaration and order of default. The 1804 Caribou Way property was ordered forfeited to the United States by an order entered on February 10, 1993.On July 28, 1993, the district court sentenced Falkowski to identical concurrent seventy-two-month sentences on each of the counts of conviction. The judgment of conviction makes no reference to forfeiture of the Caribou Way property.DiscussionFalkowski contends that the civil forfeiture of some of his property coupled with his significant prison sentence constitutes multiple punishments for the ?same offense? which is barred by the double jeopardy clause348349of the United States Constitution. He contends that the default judgment forfeiting his property preceded his sentence and, therefore, his criminal sentence should be vacated. The Fifth Amendment provides that ?No person shall... be subject for the same offense to be twice put in jeopardy of life or limb....? The double jeopardy clause protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969). Although the text mentions only harm to life or limb, the Fifth Amendment covers imprisonment and monetary penalties as well. See United States v. Halper, 490 U.S. 435, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989). A civil forfeiture proceeding is not a criminal prosecution. United States v. One Assortment of 89 Firearms, 465 U.S. 354, 361?62, 104 S. Ct. 1099, 79 L. Ed. 2d 361 (1984). Thus, this Court is only concerned in this case with the punishment prong of the rule.There are three reasons why Falkowski?s attack on his criminal sentence must fail: First, jeopardy attached in the criminal case before the default judgment was entered in the civil proceeding. Second, by entering a plea of guilty, Falkowski waived or, more accurately, forfeited the right to collaterally attack his conviction and sentence on double jeopardy grounds. Third, the civil forfeiture proceeding was not based upon the same offense for which Falkowski was criminally prosecuted.The Relative Timing of Plea and ForfeitureWhere a defendant contends that he was subject to multiple punishments for the same offense, it is necessary to determine the point at which jeopardy attaches because first in time is apparently first in right. See, e.g., United States v. Faber, 57 F.3d 873 (9th Cir. 1995). Jeopardy attaches in a criminal case when the jury is sworn or, as in this situation, when the case settles without trial, jeopardy attaches when a plea is accepted. Faber, 57 F.3d at 874?5. In the instant case, Falkowski entered an unconditional plea on November 13, 1992. While there is some uncertainty regarding the point at which jeopardy ?attaches? in a civil forfeiture proceeding, the consensus seems to be that the earliest jeopardy attaches is when an answer is filed in the civil forfeiture proceeding. See also United States v. Wong, 62 F.3d 1212, slip op. at 9925 (9th Cir. 1995). Falkowski never filed an answer, so jeopardy never attached. Accord United States v. Torres, 28 F.3d 1463 (7th Cir. 1994). Alternatively, the only other significant date would be the entry of default judgment against Falkowski on February 10, 1993. Until final judgment was entered, Falkowski could still seek to reclaim the property. United States v. A Parcel of Land, Buildings, Appurtenances and Improvements, Known as 92 Buena Vista Ave., Rumson, New Jersey, 507 U.S. 111, 113 S. Ct. 1126, 1136, 122 L. Ed. 2d 469 (1993) (until judgment entered, the government does not own property). The civil forfeiture of the Caribou Way property does not impact Falkowski?s criminal sentence.The Civil Forfeiture Was Not Basedupon the Same OffenseThe Fifth Amendment prevents inter alia multiple punishments for the same offense. Falkowski argues that his civil forfeiture and criminal prosecution comprised the same offense and relies upon United States v. $405,089.23 United States Currency, 33 F.3d 1210 (9th Cir. 1994). That decision does not, however, specifically address the issue or discuss the definitive decision determining whether two offenses are the same for double jeopardy purposes. See United States v. Dixon, 125 L. Ed. 2d 556, 113 S. Ct. 2849 (1993). In Dixon, the Supreme Court overruled Grady v. Corbin, 495 U.S. 508, 109 L. Ed. 2d 548,110 S. Ct. 2084 (1990) and disapproved the dictum suggested in Illinois v. Vitale, 447 U.S. 410, 65 L. Ed. 2d 228, 100 S. Ct. 2260 (1980), that prosecuting someone a second time based on evidence used to convict him of a related crime on another occasion would implicate double jeopardy. Dixon, 113 S. Ct. at 2861?2863. The Court held that to determine whether successive prosecutions in volve the same offense, the Supreme Court will look only to the same elements test derived from Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 52 S. Ct. 180 (1932) (holding that ?where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not?). Id. Dixon, by overruling Grady, cast doubt on using Vitale to create lesser included offenses by reference to evidence and conduct rather than basic elements. Id.What then are the elements of a criminal offense and, by extension, of a civil claim? The elements of a claim or charge constitute the minimum which the plaintiff must prove to prevail. Generally, the elements of a criminal charge are sketched in the indictment, and the elements of a civil claim are suggested in the complaint. But, at least in this Court, neither the indictment nor the complaint go to the jury nor control what the government must prove to prevail. In both situations, the elements are sent to the jury in the jury instructions.What then is the minimum the government must prove to obtain a forfeiture? See 21 U.S.C. ? 881(a).349350The government must prove that there is probable cause to believe that there is a substantial connection between the property and some violation of one or more of the laws prohibiting drug trafficking. For example, probable cause that the property was either purchased with the proceeds of drug offenses or was used to commit or facilitate the violation of various drug statutes. In each case, the elements of the claim focus on specific property. In contrast, none of the criminal statutes require the use of any specific property to prove guilt. Thus, the civil claim has an element not shared by the criminal statutes. Consequently, it is not possible to find that the civil forfeiture and the criminal prosecution are identical offenses. See United States v. Chick, 61 F.3d 682, 687 (9th Cir. 1995) (holding that if criminal charges require proof of facts which the civil forfeiture action would not have required to be proven, then the criminal charges cannot be said to be based upon the same offense underlying the forfeiture action).The only alternative allowed by Dixon would be a finding that one was a lesser offense and the other a greater offense. Clearly, the criminal offense could not be the greater because it does not completely include the elements of the civil forfeiture, the involvement of property. Therefore, some cases conclude, without analysis, that the civil forfeiture must be the greater offense and the criminal offenses must be lesser included offenses. See, e.g., United States v. Ursery, 59 F.3d 568, 574 (6th Cir. 1995). This seems wrong. The criminal cases all require the government to prove both an actus reus and mens rea, generally knowledge or intent, the civil forfeitures do not require the government to prove mens rea. True, the innocent owner defense injects additional elements into the case with superficial similarity to mens rea, but it is clear that Congress did not consider the claimant?s burden to relate to elements of the offense. The claimant is given an affirmative ?defense.?There is a clear distinction, however, between the elements of the offense and the elements of an affirmative defense. First, the claimant must disprove knowledge and consent and the government does not have to prove it as an element. See United States v. 1980 Red Ferrari, VIN No. 9A0034335, 827 F.2d 477, 478 (9th Cir. 1987). More important, to convict of the underlying crime, the government must prove that the defendant committed the actus reus with the complementary mens rea. The elements of the criminal case focus on the defendant and his actions. In contrast, to avoid forfeiture, the claimant must prove that he did not have knowledge that anyone was using his property in drug trafficking and that he tried, to the extent of his power, to prevent its use for such purposes, this is a significantly greater burden than the burden to prove that he was not an accomplice. Thus, the civil claim and the criminal offense each have an element not shared by the other. The civil claim requires the use of property, the criminal claim requires mens rea. The cases that conflate the civil claim and the criminal offense fail to see the significance of Dixon?s overruling of Grady. The United States Supreme Court clearly repudiated both a same conduct test and a same transaction test. More importantly, the Court made it clear that the same offense test means precisely the same thing whether courts are considering the successive prosecution strand of the double jeopardy clause or the successive punishment strand. See Dixon (?it is embarrassing to assert that the Fifth Amendment single term ?same offense? has two different meanings?).It is, of course, true that the government will typically rely on the same evidence to prove the charges in the indictment and the forfeiture claim. It is also true that the forfeiture will inevitably arise out of the same transaction or series of transactions as the criminal prosecution. But, as Dixon teaches, this is not enough. The confusion in the cases comes from the failure to distinguish between the allegations in the complaint or indictment, much of which may be surplusage, and the elements that must be proven. See, e.g., United States v. McCaslin, 863 F. Supp. 1299, 1303 (W. D. Wash. 1994) and Oaks, 872 F. Supp. at 823?24 (suggesting that, because proof of any violation of drug laws would permit a forfeiture, any forfeiture is the same offense as any violation of the drug laws). That confusion is compounded in forfeiture cases when the court, conducting an analysis of elements to determine whether a criminal prosecution and a civil claim have the same elements, focuses on the affidavit submitted in conjunction with the showing of probable cause necessary to seize the property in the first instance instead of focusing on the elements the government must prove to forfeit the property. It is probably true that the affidavit will set out virtually everything that is known about the defendant?s criminal activities, but it does not determine what must be proven to accomplish a forfeiture. A single use of the property, in conjunction with a single violation, will suffice. See, e.g., 21 U.S.C. ? 881(a)(7).As the Supreme Court made clear in Felix, 503 U.S. at 380?381, prosecution of a defendant for conspiracy does not violate the double jeopardy clause, where some of the overt acts relied upon by the government are based on substantive offenses for which the defendant has been previously convicted and punished. Consequently, prosecution for conspiracy or its twin, continuing criminal enterprise after the defendant has350351previously suffered a civil forfeiture based on similar evidence and arising out of the same transaction, does not violate the double jeopardy clause. See United States v. Saccoccia, 18 F.3d 795, 798 (9th Cir. 1994)(?A substantive crime and a conspiracy to commit that crime are not the same offense for double jeopardy purposes.?) (citing Felix, 503 U.S. at 389). By the same token, the fact that the civil forfeitures and the criminal indictment charge violations of similar statutes is not determinative.An example will illustrate the point. Assume that John Doe flies his Cessna 180 on the first of each month for thirty-six months between Mexico City and Los Angeles to pick up and deliver a shipment of cocaine. Clearly, each trip is a separate crime which could be separately prosecuted and separately punished. In addition, conspiracy counts would probably be sustained. The issue arises in that type of situation as to whether the government could prosecute him criminally for twenty trips and use one or more of the other sixteen as a predicate for forfeiture of the airplane. See Felix, 503 U.S. at 386?387 (suggesting that it could). It is not enough, however, to tie a particular forfeiture to a particular criminal statute. It is also necessary to tie it to a particular violation of that statute on a particular day and at a particular place charged in a particular indictment for the forfeiture and the prosecution to encompass the same offense. It is only then that an elements analysis can be made. See, e.g., One 1978 Piper Cherokee Aircraft, 37 F.3d at 494?95 (prosecution of defendant for drug offenses does not bar subsequent forfeiture tied to criminal act which did not result in specific prosecution). It is clear, for example, that jeopardy does not attach to dismissed counts. See United States v. Vaughan, 715 F.2d 1373 (9th Cir. 1983) (where defendant pleads to some charges in an indictment and others are dismissed, jeopardy only attaches to the counts to which the defendant pleads). In this case, a number of counts were dismissed as part of the plea bargain. Thus, any of the dismissed counts could form the basis for the civil forfeiture without impacting double jeopardy.
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