In the Supreme Court of the United States

OCTOBER Term 1995



The Solicitor General, on behalf of the United States of America, petitions for a writ of certiori to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case.


The opinion of the court of appeals (App., infra 1a-23a) is reported at 33 P.3d 1210. An order amending the opinion of the court of appeals (App. infra, 24a-29a) is reported at 56 F.3d 41, together with a dissent from the denial of rehearing en banc.


The judgment of the court of appeals was entered on September 6, 1994. A petition for rehearing was denied, and the opinion amended, on May 30, 1995.

App., infra, 24a-29a. The jurisdiction of this. Court is invoked under 28 U.S.C. 1254 (1).


The Double Jeopardy Clause of the Fifth Amendment to the Constitution provides: '[N]or shall any person be Subject for the same offence to be twice put in jeopardy of life or limb" The provisions of 21 U.S.C. 841, 846 and 881 and 18 U.S.C. 371, 981 and 1956 are reproduced at App., infra, 112a-156a.


1. On June 17, 1991, tile government filed a civil complaint, pursuant to 21 U.S.C. 881 (a) (6) and 18 U.S.C. 981(a) (1) (A), seeking forfeiture of bank account funds, cars, vessels, silver bars, and aircraft claimed by James Wren, Charles Arlt, and Payback Mines. That complaint was filed five days after Wren, Arlt, and others were charged in a superseding indictment with narcotics trafficking and money laundering, in violation of 21 U.S.C. 841, 846 and 18 U.S.C. 371 and 1956. Wren, Arlt, and Payback Mines filed claims to the property in the civil proceeding. By agreement of the parties, litigation of the forfeiture action was deferred during the pendency of the criminal prosecution. App., infra, 50a-52a.

On March 27, 1992, Wren and Arlt were convicted of conspiracy and substantive charges relating to methamphetamine manufacturing and of laundering drug proceeds through front corporations that included Payback Mines. The government then filed a motion for summary judgment in the civil forfeiture action contending that the assets it sought to forfeit were the proceeds of illegal narcotics activity, under 21 U.S.C. 881 (a) (6), and alternatively were "involved in, ); or "traceable to;' properties involved in, money laundering activity, under 18 U.S.C. 981 (a) (1) (A). The court granted the government's motion, finding all of the assets forfeitable under the proceeds theory and, alternatively, except for the silver bars, under the money laundering theory. App., infra, 53a-74a.

2. A panel of the Ninth Circuit reversed, holding that the forfeiture action was barred by Arlt's and Wren's criminal convictions, because forfeiture of the property violated the Double Jeopardy Clause'.s prohibition on imposing cumulative punishment for the same offense in two separate proceedings. App., infra, la-23.[1] The panel first held that a criminal prosecution and a related, parallel civil forfeiture action constitute "separate" proceedings for double jeopardy

In addition, the panel did not explain why it sustained the double jeopardy plea of Payback Mines, a claimant that was not criminally prosecuted. Those fact-bound rulings do not warrant the Court's attention, and for that reason we do not independently present them as grounds for review purposes. Id. at 7a. That conclusion, the panel believed, was required by Jeffers v. United States, 432 U.S. 137 (1977), in which eight members of this Court assumed that two parallel criminal prosecutions can never be the "same proceeding" for double jeopardy purposes, App., infra, lOa-12a. The panel expressly rejected (id. at 7a-8a) the contrary conclusions of the Second and Eleventh Circuits, which have held that parallel civil and criminal cases can qualify as a single "proceeding" under the Double Jeopardy Clause. See United States v. One Single Family Residence, 13 F.3d 1493 (llth Cir. 1994); United States v. Millan, 2 F.3d 17 (2d Cir. 1993), cert. denied, 114 S. Ct. 922 (1994).

The panel next concluded that all actions brought under the federal civil forfeiture statutes impose "punishment" for double jeopardy purposes. The panel acknowledged that in United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984), this Court unanimously held that nothing in the Double Jeopardy Clause precluded the government from obtaining a civil forfeiture of firearms following a criminal prosecution of the owner for unlawfully dealing in the same firearms, because the civil forfeiture was "remedial." App., infra, 13a. The panel concluded, however, that this Court "changed its collective mind" (ibid.) five years later in a second unanimous decision, United States v. Halper, 490 U.S. 436 (1989), by holding that certain civil proceedings can impose "punishment" for double jeopardy purposes. That "change[] [of] * * * mind" (App., infra, 13a) was confirmed, in the panel's view, by Austin v. United States, 113 S. Ct. 2801 (1993), which held that civil forfeiture of property used to further drug trafficking should be considered "punishment" for purposes of determining the threshold applicability of the Eighth Amendment's prohibition of excessive fines.

According to the panel, "the only fair reading" of Austin (App., infra, 15a) is that all civil forfeitures must be deemed "punishment," not only under the Eighth Amendment, but also under the Double Jeopardy Clause. Moreover, the panel concluded that Austin reflects a departure from Halper's case-by-case treatment of "punishment" determinations, and instead adopted "a categorical approach" (App., infra, 17a) that looks "to the requirements of the forfeiture statute as a whole" (ibid.), rather than to the facts of the particular forfeiture. Applying that "categorical" analysis, the panel concluded that the statutory provisions governing forfeitures of drug proceeds impose "punishment" in all of their applications. The panel acknowledged (id. at 16a) that its conclusion that the forfeiture of drug proceeds is always punitive conflicts with United States v. Tilley, 18 F.3d 295 (5th Cir.), cert. denied, 115 S. Ct. 573, 574 (1994). Having concluded that the forfeiture action in this case imposed a second "punishment" in a separate proceeding, the panel reversed and remanded with instructions to dismiss the forfeiture action with prejudice.[2]

3. The United States sought rehearing, and suggested rehearing en bane, contending that (1) the civil forfeiture of drug proceeds cannot be "punishment" for an "offense" within the meaning of the Double Jeopardy Clause, (2) if civil forfeiture is punishment for an "offense" for double jeopardy purposes, the "elements" test of Blockburger v. United States, 284 U.S. 299 (1932), requires the conclusion that it is not the "same" offense as the crimes for which the claimants were convicted, and (3) if the civil forfeiture is deemed to impose punishment for the same offense as the crimes for which the claimants were also punished, all punishment occurred in the "same proceeding" for double jeopardy purposes. The court requested responses to the petition, and accepted a brief in opposition to rehearing from the National Association of Criminal Defense Lawyers as amicus curiae.

After considering those submissions, the court denied rehearing and rehearing en bane. The panel, however, amended its opinion to note (App., infra. 25a) that its categorical approach was also "compelled" by Department of Revenue of Montana v. Kurth Ranch, 114 S. Ct. 1937 (1994), a case decided before the panel's decision, but not cited in its original opinion. The panel explained that Kurth Ranch "applied Austin's categorical approach for determining when punishment has been imposed in a Double Jeopardy case arising pursuant to a statute that taxed drug monies." App., infra, 25a.

Seven judges dissented from the denial of rehearing en banc. Writing for the seven dissenters, Judge Rymer stated that, by leaving the decision below unreviewed, the Ninth Circuit "let[] stand a decision that 'could free hundreds of drug dealers across the western United States,' " App.) infra, 26a, since "[t]he flip side of the panel's reasoning is that a drug dealer whose illegally obtained proceeds have previously been seized may not thereafter be prosecuted because he will already have been 'punished.' This cannot be right." Ibid.

Judge Rymer argued that "[p]rocceds are the functional equivalent of contraband," the forfeiture of which "is a remedial sanction that does not constitute punishment for double jeopardy purposes" under 89 firearms. App., infra, 27a. She noted that "the panel's opinion writes 89 Firearms off the books" by citing Halper and Austin "out of context and surmising that 'the Court changed its collective mind' * * * despite the fact that the Court itself didn't say that it bad." Ibid. She also rejected the panel's view that Kurth Ranch should be read to support a "categorical" approach to the forfeiture of proceeds, noting that "Kurth Ranch was a double jeopardy case * * * that was decided after Austin, yet mentioned Austin only in passing and then only as holding that a civil forfeiture may violate the Eighth Amendment's proscription against excessive fines." Id. at 29a n.3 (citing Kurth Ranch, 114 S. Ct. at 1945). Judge Rymer concluded that "[i]f the Supreme Court has changed its mind-if * * * Separating a drug trafficker from the proceeds of his trafficking is punishment which either bars forfeiture after conviction or prosecution after seizure-it is up to that Court to say so." App., infra, 28a.


This case presents three related and important issues under the Double Jeopardy Clause. First, the Ninth Circuit has erroneously held that Halper, Austin, and Kurth Ranch effectively overturned the settled understanding, unanimously reaffirmed by this Court a decade ago in 89 Firearms, that a civil forfeiture action that serves a remedial purpose may follow a criminal prosecution for related conduct without offending the Double Jeopardy Clause. Second, the Ninth Circuit's holding that the civil forfeiture and criminal convictions inflicted punishment for "the same offense" cannot be reconciled with numerous decisions of this Court holding that whether two offenses are the "same" for double jeopardy purposes generally is governed by the "elements" test of Blockburger. Third, the Ninth Circuit erred in holding that parallel civil and criminal cases, if they are deemed to impose punishment for the same offenses, necessarily are "separate proceedings" for double jeopardy purposes. Those rulings, which the Ninth Circuit conceded are at odds with the conclusions of other courts of appeals, seriously threaten the ability of federal and state authorities to prosecute crimes and administer important civil forfeiture programs within their respective jurisdictions. Further review is therefore warranted.

1. In United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984), this Court held that the Double Jeopardy Clause did not bar a civil in rem action to forfeit firearms "involved in or used or intended to be used in" violations of the Gun Control Act of 1968 following the owner's acquittal of related violations of that Act. 465 U.S. at 362-366. The Court concluded that, "[u]nless the forfeiture sanction was intended as punishment, so that the proceeding is essentially criminal in character, the Double Jeopardy Clause is not applicable." Id. at 362. The Court noted that Congress intended the forfeiture to be a civil remedy, that the forfeiture furthered the "broad remedial aims" of "discouraging unregulated commerce in firearms and * * * removing from circulation firearms that have been used or intended for use outside of regulated channels of commerce, " and that accordingly the forfeiture served goals "plainly more remedial than punitive." Id. at 364. Because the claimant "failed to establish by the "clearest proof'" that the forfeiture was in fact sufficiently punitive, the Court concluded that it was "not an additional penalty for the commission of a criminal act, but rather is a separate civil sanction, remedial in nature * * * [that was] not barred by the Double Jeopardy Clause." Id. at 366. See also Various Items of Personal Property v. United States, 282 U.S. 577, 581 (1931) ("The forfeiture is no part of the punishment for the criminal offense. The provision of the Fifth Amendment to the Constitution in respect of double jeopardy does not apply") (citation omitted).

The Ninth Circuit concluded that 89 Firearms has effectively been written "off the books," App., infra, 27a (Rymer, J., dissenting from the denial of rehearing en banc), by this Court's decisions in United States v. Halper, 490 U.S. 435 (1989), Austin v. United States, 113 S. Ct. 2801 (1993), and Department of Revenue, of Montana v. Kurth Ranch, 114 S. Ct. 1937 (1994). None of those cases purported to overrule 89 Firearms, and none can be read to require the conclusion that the forfeiture of drug proceeds is inherently "punishment" for an "offense" under the Double Jeopardy Clause.

In Halper, the Court stated a rule for "the rare case" in which "a prolific but small-gauge offender [was subjected] to a sanction overwhelmingly disproportionate to the damages he has caused," so that the sanction though properly viewed as remedial in most of its applications could not so be viewed in the specific case. 490 U.S. at 449.1 That ruling lends no support to the Ninth Circuit's conclusion that a civil forfeiture of the proceeds of drug activity-i.e., the seizure of the ill-gotten profits from narcotics trafficking-must always be characterized as punitive. To the contrary, as the Fifth Circuit concluded in United States v. Tilley, 18 F.3d 295, cert. denied, 115 S. Ct. 573P 574 (1994), a case "with which [the opinion below is] squarely in conflict," App, infra, p. 1.[3]

18 F.3d at 300 (quoting Halper, 490 U.S. at 449) Accord SEC v. Bilzerian, 29 F.3d 689, 696 (D.C. Cir. 1994) (disgorgement order following criminal conviction for violation of securities laws not a punishment but remedial only, as it requires defendant to give up only his ill-gotten gains and does not impose an additional penalty, citing Tilley); United State v. Carson,, 52 F.3d 1173-0 1182-1183 (2d Cir. 1995 (disgorgement order in civil RICO case not "punishment" for double jeopardy purposes, because "[d]isgorgement, by design, is compensatory").

Nothing in Austin changes that conclusion. In finding that the civil forfeiture provisions at issue in that case (21 U.S.C. 881(a)(4) and (7) constituted punishment for purposes of the threshold applicability of the Eighth Amendment's Excessive Fines Clause, the Court distinguished two of its precedents concerning the forfeiture of contraband or goods involved in customs violations and noted that the forfeitures in both of those cases were remedial. 113 S. Ct. at 2811-2812 (citing 89 Firearms, 465 U.S. at 364, and One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 237 (1972) (per curiam) (forfeiture of undeclared imported merchandise prevents forbidden merchandise from circulating in the United States, and provides a reasonable form of liquidated damages). The Court also cited the same cases in observing that "[t]he Double Jeopardy Clause has been held not to apply in civil forfeiture proceedings, but only in cases where the forfeiture could properly be characterized as remedial." Austin, 113 S. Ct. at 2805 n.4. This Court's action in citing and distinguishing those cases scarcely supports the Ninth Circuit's view that this Court has "changed its collective mind" (App. infra, 13a) about their continuing vitality.

Nor is the forfeiture of drug proceeds similar to the tax on possession of dangerous drugs, which the Court found was a punishment for double jeopardy purposes in Kurth Ranch, supra. The Court found it highly significant that the state statute that required payment of the tax conditioned liability on commission of a crime, and that the tax was due and collectable "only after the taxpayer had been arrested for the precise conduct that gives rise the tax obligation in the first place." 114 S. Ct. a 1947. As the Court noted, "[plersons who ha[d been arrested for possessing marijuana constitiite[d' the entire class of taxpayers subject to the [state tax." Ibid. In addition, the tax was an in person sanction that was exacted after the drugs had been confiscated and destroyed, and that amounted to more than eight times the market value of the drugs. As the Court put it, "[a] tax on -'possession' of goods that no longer exist and that the taxpayer never lawfully possessed has an unmistakable punitive character" especially when it is "imposed on criminals and no others." Id. at 1948. That type of assessment went far beyond merely stripping a wrongdoer of the profits of his trade, and bears no resemblance to the forfeitures that the Ninth Circuit categorically held to constitute "punishment" for an "offense" in this case.

As the dissenters below noted (App., infra, 27a), some statements in Halper, Austin, and Kurth Ranch, if read 'out of context,'" might lend support to the Ninth Circuit's decision in this case. Whether those cases should be read to change established double jeopardy doctrine has created considerable confusion and has led to a conflict in the lower courts. See, e.g., United States v. Morgan, 51 F.3d 1105, 1113 (2d Cir. 1995) (noting proliferation of double jeopardy claims in various contexts following Halper and Second Circuit's conclusion that an in rem civil forfeiture is not "punishment" for double jeopardy purposes, but acknowledging the Ninth Circuit's decision in this case as contrary authority), petition for cert. pending, No. 95-14 (July 3, 1995). The Sixth Circuit has recently agreed with the Ninth Circuit's analysis in a case involving the forfeiture of property that facilitated or was intended to facilitate drug trafficking. See United States v. Ursery, No. 94-112 (July 13, 1995), petition for cert. pending, No. 95-___ (Aug. 28, 1995). On the other hand, as we hav noted, the Fifth Circuit in Tilley, supra, reached conclusion contrary to the Ninth Circuit's holding in this case in an indistinguishable factual context. The D.C. Circuit followed the Fifth Circuit's decision, in the analogous context of civil disgorgement proceedings in Bilzerian, supra. See also Carson, 52 F.3d at 1182-1183. The Ninth Circuit's conclusion that the civil forfeiture of proceeds of drug trafficking is always punitive for double jeopardy purposes is also inconsistent with United States v. Borromeo, 995 F.2d 23, amended on reh'g, 1 F.3d 219 (4th Cir. 1993), where the court ordered an asset-by-asset review to ascertain whether forfeiture of the proceeds would be punitive.[4] The courts of appeals' disarray on an issue of such widespread application warrants this Court's attention.

2. As this Court's cases recognize, the component of the Double Jeopardy Clause on which the Ninth Circuit relied does not prohibit the imposition of punishment (or multiple punishments) simpliciter, but only the imposition of "multiple punishments for the same offense." Halper, 490 U.S. at 440 (emphasis added); Kurth Ranch, 114 S. Ct. at 1945 ("A defendant convicted and punished for an offense may not have a nonremedial civil penalty imposed against him for the same offense in a separate proceeding") (emphasis added). Quite apart from the Ninth Circuit's error in concluding that a civil forfeiture of drug proceeds is inherently punitive, the Court also erred in finding that the forfeiture "offense" was the "same" as the crimes for which the claimants were punished.

Whether two offenses are the "same" for double jeopardy purposes does not turn on whether the same illegal conduct was involved in both, but on a comparison of the elements that the government is required to prove to prevail under each; the offenses are different if each requires proof of a fact that the other does not. See Blockburqer v. United States, 284 U.S. 299 (1932); see also Witte v. United States, 115 S. Ct. 21991 2204 (1995) (noting that Blockburger analysis applies to "multiple punishment" claims); United States v. Dixon, 113 S. Ct. 2849 (1993) (overruling Grady v. Corbin, 495 U.S. 508 (1990). The Ninth Circuit has interpreted the decision below to require the conclusion that forfeitures of instrumentalities or proceeds of drug trafficking are a species of greater offenses with respect to the lesser-included [criminal] offenses," because the forfeiture statutes "incorporate the elements of [the] criminal offenses." United States v. One 1978 Piper Cherokee Aircraft, 37 F.3d 489, 495 (1994).' [5]The Sixth Circuit recently reached the same conclusion. See Ursery, No. 94-1127, slip op. 10-11.

The conclusions reached by the Ninth and Sixth Circuits depart from the consistent course of decisions of this Court applying the Blockburger rule. An offense is "included" within another under the Blockbitrger rule only if every conceivable application of the "greater" offense "necessarily" establishes the existence of the "included" offense. See, e.g., United States v. Woodward, 469 U.S. 105, 108 & n.4 (1985) (per curiam); Brown v. Oltio, 432 U.S. 1611 168 (1977) (offense is lesser-included under Blockbitrger if it is "invariably true" that the lesser offense "requires no proof beyond that which is required for conviction of the greater"); accord Schmuck v. United States, 489 U.S, 705t 716 (1989) (adopting "elements" test for determining whether offense is "lesser included" under Fed. R. Crim. P. 31 (e) ; offense is not lesser-included "unless the elements of the lesser offense are a subset of the elements of the charged offense"); id. at 719 ("the lesser offense must not only be part of the greater in fact, but it must be embraced within the legal definition of the greater as part thereof").

The forfeiture "offenses" cannot be deemed the "same" as the claimants' criminal offenses under the traditional understanding of Blockburger. The forfeiture statute contains at least one element that is not part of the criminal offenses, to wit, the existence of property derived from, or used in, criminal activities. Indeed, forfeiture may be had under 21 U.S.C. 881 (a) (6) if the property was "intended" for use, by anyone, in the commission of narcotics crimes, even if no such crime was actually committed. Cf. 89 Firearins, 465 U.S. at 363-364.

Moreover, each of the crimes committed by the claitnants-conspiracy and possession of a controlled substance with intent to distribute it and money laundering -- requires proof of a certain criminal mental state that the government need not prove, with respect to the claimant-owner, in establishing the forfeiture offense. Indeed, the forfeiture statute does not require that the claimant-owner have committed any criminal offense at all. It is sufficient that the property in question was derived from or used in the criminal activities of anyone. See, e.g., Austin, 113 S. Ct. at 2810 n.11 (noting that forfeiture of property may be punitive as to the owner even though the forfeiture may be had for "acts of a person other than the owner") ; Origet v. United States, 125 U.S. 240, 246 (1888) ("The person punished for the [criminal] offense may be an entirely different person from the owner of the merchandise, or any person, interested in it"); United States v. Chandler, 36 F.3d 35.8 (4th Cir. 1994) ("It is not an element of the government's case to prove the involvement of the property's owner in the commission of the offense giving rise to the forfeiture"), cert. denied, 115 S. Ct. 1792 (1995). In those circumstances, the Ninth Circuit's view that the narcotics and money laundering crimes are necessarily "included" within the forfeittire "offenses" constitutes a significant departure from the controlling decisions of this Court. That departure warrants this Court's review.

3. Even if the forfeitures in this case constituted punishment" for the same offenses for which claimants were convicted, the "Double Jeopardy Clause simply is not implicated" if the criminal action was part of the same "proceeding" as the forfeiture action, because in a single proceeding "the multiple punishment issue' would be limited to ensuring that the total punishment did not exceed that authorized by the legislature." Halper, 490 U.S. at 450; see also Missouri v. Hunter, 459 U,S, 359 (1983). The Ninth Circuit concluded that the civil forfeitures and criminal convictions must be deemed to have resulted from "separate" proceedings because two criminal cases that are separately tried are ordinarily considered "separate" for double jeopardy purposes. App., infra, 10a (citing Jeffers v. United States, 432 U,S, 137 (1977)). The Ninth Circuit erred in reaching that conclusion.

This Court recognized in Halper, 490 U.S. at 450, that nothing in that decision would "prevent the Government from seeking and obtaining both the full civil penalty and the full range of statutorily authorized criminal penalties in the same proceeding." Because civil and criminal actions cannot be joined in a single trial -- and never have been joined under our system of justice "separate" proceedings that trigger double jeopardy protections, See, e.g., Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 309 (1984) (two-tier state system, even if "technically" resulting in two trials, "can be regarded as * .* * a single, continuous course of judicial proceedings" that does not implicate the concerns of the Double Jeopardy Clause).

The relevant question must instead be whether the maintenance of parallel civil forfeiture and criminal actions "constitute[s] 'governmental oppression of the sort against which the Double Jeopardy Clause was intended to protect."' Justices of Boston Municipal Court v. Lydon, 466 U.S. at 310 (quoting United States v. Scott, 437 U.S. 82, 91 (1978)). As the Ninth Circuit acknowledged, App., infra, 7a-8a, the Second and Eleventh Circuits have answered that question in the negative. See, e.g., Millan, 2 F.3d at 20; United States v. One Single Family Residence, 13 F,3d 1493, 1499 (llth Cir. 1994). Those circuits have recognized that the simultaneous pursuit of civil and criminal actions does not implicate the concern that the government "is seeking the second punishment because it is dissatisfied with the sanction obtained in the first proceeding." Halper, 490 U.S. at 451 n.10. The Ninth Circuit's disagreement with the conclusions of two other circuits warrants this Court's review.

4. The decision in this case has significant ramifications. In civil cases, the decision has created grave uncertainty about the extent to which the government may seek in rem forfeiture when a potential claimant has previously been prosecuted criminally. The result has been to chill the efficient administration of the important federal asset-forfeiture program.

In criminal cases, as Judge Rymer's dissent predicted in describing the "flip side of the panel's reasoning," App., infra, 26a, the decision below has given rise to a large number of motions to dismiss based on the prior institution of civil forfeiture proceedings by the government. The Ninth Circuit has held that criminal defendants have a right to an interlocutory appeal under Abney v. United States, 431 U.S. 651 (1977), when the district court does not sustain the plea of double jeopardy. See United States v. Chick, No. 94-30395 (July 14, 1995), slip op. 8427, 8431-8435; accord Morgan, 51 F.3d at 1109-1110. Thus, criminal trials cannot proceed in the Ninth Circuit until defendants obtain appellate rulings on their double jeopardy claims. Numerous interlocutory appeals by criminal defendants, and by the government in cases in which the indictment has been dismissed in reliance on the decision below, are currently pending before the Ninth Circuit.[6] Even in cases where the government ultimately prevails on appeal, the decision below will result in substantial delays in the adjudication of defendants' guilt, potentially prejudicing the government's ability to prove its case. In cases where the government does not prevail on appeal, the decision below will result in the unwarranted termination of criminal prosecutions.

The decision below has also formed the basis for a large number of post-conviction challenges under 28 U.S.C. 2255 from defendants claiming that their criminal prosecutions in the Ninth Circuit impermissibly followed a civil forfeiture of property that represented the proceeds of, or was otherwise involved in, their offenses.[7]

Some of those challenges have been stayed pending the expiration of the time allowed for the filing of a petition for a writ of certiorari in this case (or pending the Court's action on our petition). Otliers continue to be litigated in district courts throughout the, Ninth Circuit. Those cases have led to collateral litigation about issues of retroactivity and,procedural default, which could be obviated by this Court's prompt intervention.

5. In addition to seeking review of the Ninth Circuit's decision in this case, we have also filed a petition for a writ of certiorari seeking review of the Sixth Circuit's decision in Ursery, supra. We believe that the Court should grant certiorari and give plenary consideration to both cases. While both cases present similar double jeopardy issues, those issues arise in somewhat different factual and legal contexts that may illuminate the Court's consideration of the problem. Ursery involves the reversal of a criminal conviction in reliance on a purportedly separate civil forfeiture proceeding. In addition, the civil forfeiture in Ursery did not involve property alleged to be "proceeds" of criminal activities, but property that allegedly was used to facilitate the commission of narcotics


The petition for a writ of certiorari should be granted.

Respectfully submitted.

Solicitor General
Assistant Attorney General
Deputy Solicitor General
Assistant to the Solicitor General


[1] The panel noted that the claimants failed to raise any double jeopardy defense in the district court, but excused their waiver because the government responded to the claim on the merits and because the claimants relied principally on this Court's intervening decision in Austin v. United States, 113 S. Ct. 2801 (1993). App., infra, 5a n.1., The panel did not consider it significant, in concluding that the government effectively waived the claimants' waiver, that the double jeopardy claim was presented in less than two pages of the claimants' pro se brief or that the government did not have an opportunity to speak to the question of waiver at oral argument, in light of the panel's unanimous conclusion that the case was unworthy of argument. Id. at la ii.*.

[2] On December 1. 1994, the same panel of the Ninth Circuit reversed Arlt's conviction on the ground that he was improperly denied his right to self-representation, and remanded for a new trial. See United States v. Arlt, 41 F.3d 516. That decision did not affect Wren's conviction, the only other claimant who was criminally prosecuted. Wren's conviction was affirmed by the same panel in an unpublished order, but (on the government's cross-appeal) The panel vacated his sentence and remanded for resentencing. See United States v. Wren, No. 92-50467 (Dec. 1, 1994). Following the remand of Arlt's case, the government obtained a superseding indictment (against Arlt alone) naming the subject property in a new in personam forfeiture count, which will be tried with the other offenses for which Arlt has been ordered to stand trial. We do not believe the subsequent developments as to either Wren or Arlt affect the suitability of this case for further review. In the event forfeiture is ordered as a result of Arlt's new trial, it is doubtful, in light of the decision below, that such forfeiture could bind any other claimants. Cf. Witte V. United States, 115 S. Ct. 2199, 2204-2205 (1995).

[3] Halper therefore stands for the proposition that, in "ra cases, a person who has previously been convicted of a cri may oppose a civil remedy, otherwise permissible under the Double Jeopardy Clause, if the penalty sought is so vastly disproportionate to the harm caused by the defendant that, as applied to him, it cannot be explained other than as additional punishment for the crime. The possessor of proceeds from illegal drug sales never invested honest labor or other lawfully derived property to obtain the subsequently forfeited proceeds. Consequently, he has no reasonable expectation that the law will protect, condone, or even allow, his continued possession of such proceeds because they have their very genesis in illegal activity. * * * [T]he forfeiture of illegal proceeds, much like the confiscation of stolen money from a bank robber, merely places that party in the lawfully protected financial status quo that he enjoyed prior to launching his illegal scheme. This is not punishment "within the lain meanin of the word."

[4] The Ninth Circuit distinguished Borromeo by stating that it predated, and did "not survive," Austin. App., infra 16a n.9. The Ninth Circuit overlooked, however, the fact that the Fourth Circuit granted rehearing in Borromeo following this Court's decision in Austin. 1 F.3d 219 (1993). Far from reading Austin to require a "categorical" conclusion that a forfeitures of drug proceeds are punishments the Fourth Circuit appeared to assume that the only issue as to punishment that possibly can arise in a proceeds case relates, not to the ill-gotten gains themselves, but to property derived from those gains through the (presumably lawful) labor of the claimant. Even in that context, the Fourth Circuit noted, "[i]t is arguable that there is little justification for the position that one who successfully parlays his tainted dollar into a fortune should be permitted to enjoy a windfall." Id. at 221. The court was unwilling, however, to say that such a forfeiture can never be punitive, since the ratio of the value of the proceeds to the harm caused by the claimant's conduct "may, in a given case, be relevant *** under Austin." Ibid. (emphasis added). Accordingly, it remanded to the district court to make "a proportionality determination with regard to each and all items of the property which the government seeks to forfeit." Ibid.

[5] While our petition for rehearing and suggestion for hearing en banc were pending in the instant case, we a sought rehearing in One 1978 Piper Cherokee Aircraft. On June 29, 1995, the Ninth Circuit, acting sua sponte, stayed action on that rehearing petition pending the filing, and final disposition by this Court, of any petition by the United States for a writ of certiorari to review the decision in this case.

[6] More than a hundred appeals addressing the validity of indictments or criminal convictions and premised on the panel's analysis in this case have been filed and/or decided since the date of that decision in the Ninth Circuit alone. See, e.g., McBroom v. United States, No. 95-10088; Oakes V. United States, No. 94-36248; Oratto V. United States, No. 9516223; Quigley V. United States, No. 95-10089; Ringot- v. United States, No. 95-16042; Melvin Robinson V. United States, No. 95-10087; Patricia Robinson v. United States, No. 95-10099; United States v. Aitemen, Nos. 95-10233 & 9510244; United States v. Aldridge, No. 95-10219; United States V. Anmya, No. 95-30064; United States v. Ayanteye, Nos. 9510226 & 95-10279, United States v. Backues, No. 95-16301; United States v. Bailey, No. 95-10023; United States V. Barton, 46 F.3d 51 (9th Cir. 1995); United States V. Blair, No. 9535468; United States v. Boyd, No. 94-30450; United States v. Branum, No. 95-30045; United States v. Bravo, No. 95- 15842; United States V. Brown, No. 94-30271; United States V. Cain, No. 95-35270; United States v. Carpa, No. 95-10258; United States v. Chick, No. 94-30395; United States V. Cole, No. 95-35358; United States v. C&nnell, No. 94-10426; United States V. Cretacci, No. 94-10235; United States v. Day, No. 95-35741; United States V. Domitrovich, No. 95-35680; United States V. D'Uva, No. 95-50167; United States v. Elliott, No. 94-30152; United States V. Escobedo, No. 95-30229, United States V. Esl)inoza, No. 95-55647; United States v. co stis, No. 95-50089; United States V. Faber, No. 94-30228; United States V. Flowers, No. 95-10337; United States v. Fontaine, No. 9550213; United States v. Frasquillo, No. 94-10444; United States V. Gartner, No. 95-50072; United States V. Good, No. 95-30102; United States V. Griffis, No. 95-10292; United States V. Harrison, No. 95-35211; United States V. Hepler, No. 9535495; United States V. Hill, No. 95-35381; United States V. Hollingsworth, No. 95-30228; United States V. Housel,.y, Nos. 95-10126 & 94-10523; United States V. Ingraham, No. 93-30307; United States v. litocencio, No. 95-10021; United States V. Mir, No. 95-10094; United States V. Jain, No. 95-35625; United States v. Jordan, No. 95-35520; United States V. Kearns, No. 94-10373; United States V. Kemtnish, No. 94-50621; United States V. Leonis, No. 94-10522; United States V. Lester, Nos. 95-10301 & 95-16414, United States V. Mack, No. 95-35125; United States V. Man-atite, Nos. 95-70561 & 95-70562; United States V. Mancuso, No. 95-10294; United States V. Martin, No. 9535554; United States V. Mathisen, No. 95-35756; United States V. McCli-nton, No. 95-30148; United States v. McKenna, No. 93-30315; United States v. Mejia-Mesa, No. 95-35429; United States V. Meolit, No. 95-35556; United States V. Motitalvo, No. 94-10110; United States V. Mosley, No. 95-16512; United States V. Muth, No. 95-35783; United States v. Nakainoto, No. 95-10091; United States V. Nussbaitnzer, No. 95-35719; United States V. Ortiz-Sat?chez, No. 94-30276; United Stateq V. Palacios-Amaya, No. '95-30064; United States V. Pearson, No. 95-35636; United States V. Plunk, Nos. 94-30421 & 94-30422; United States v. Potts, No. 94-35924; United States v. Pruitt, Nos. 94-50659, 94-50660; United States v. Putchongkarrat, No. 95-50005; United States v. Ramirez, No. 95-10235; United States V. Ramos-Oseguera, No. 95-10236; United States V. Rentetia, No. 94-56034; United States v. Reynolds, No. 94-50390; United States V. Roberts, No. 9515891; United States V. Ross, No. 95-15912; United @tates v. Saglam, No. 95-50284; United States V. Saitele, No. 95-10306; United States V. Sanders, No. 95-30169; United States v. Sandoval, No. 95-35360; United States V. Schubert, No. 9516836; United States V. Sheridan, No. 95-55841; United States V. Sherrett, C.A. No. 95-30059; United States v. Sliomoiiii, No. 95-10227; United States V. Shorb, Nos. 93-30449 & 9330450; United States v. Singleton, No. 95-16395; United States v. Smith, No. 95-35542; United States V. Stanivood, No. 9535158; United States V. Sterling, No. 95-35152; United States V. Mark Titomas Taggatz, No. 95-50169; United States v. Tamez, No. 95-35354; United States V. Trujillo, No. 95-35306; United States V. Vega, No. 94-10521; United States V. Vominh, C.A. No. 95-30107; United States V. V&miiih (7'an), No. 9530057; United States V. Vominh (Thanh Mai), No. 95-30060; United States V. Walsh, No. 95-10159; United States V. Washington, No. 95-50076; United States V. Wehr, No. 9536553; United States V. Wilhelin, No. 95-35784; United States V. Whittlesey, No. 95-35192; United States v. Wilson, No. 9510083; United States V. Wo?tg, No. 94-30404; United States V. Wright, No. 95-55908; United States V. Young, No. 9330308.

[7] In the Central District of California alone, the district where this case originated, there have been numerous challenges to final judgments of conviction based on the decision in this case. See, e.g., United States V. Abday, No. CV 955019-JMI; United States V. Aldana, No. CV 95-3512-SVW; United States v. Barnes, No. CV 95-116-WJR; United States V. Bines., No. CV 95-957-LEW; United States V. Broiv?t, No. CV 95-5013-WMB; United States V. Brown, No. CV 95-119-ER; United States v. Butler, No. CV 95-2779-ER; United States V. Cat-denas-Tiiaiza, No. CV 95-2820-WMB; United States V. Coleman, No. CV 95-4273-SVW; United States V. Comisar, No. CV 95-3060-AWT; United States V. Contreras, No. CV 95-1402-JSL; United States V. Everett, No. CV 95-1410-ER; United States v. Gentry, No. CV 95-4002-JSL; United States v. Gutierrez (Jesus Felix), No. CV 94-6050-ER; United States v. Gutierrez (Marco Antonio), No. CV 95-4275-WMB; United States V. Harris, No. CV 95-2593-WJR; United States V. Gomez-Hernandez, No. CV 95-2822-JGD; United States V. Hernandez, No. CV 95-3777-JMI; United States V. Ricardo Hititroit, No. CV 95-3517-DMT; United States V. Gabriel Huitroit, No. CV 95-2559-DMT; United States V. Muntoon, No. CV 95-3999-WJR; United States V. Hutchens, No. CV 95-2558-WJR; United States V. Kelly, No. CV 95-1.409AAII; United States V. Johnson, No. CV 95-5002-WDI(; United States V. Larsen, No. CV 95-2700-CBM; Uniteit States V. Lefebvre, No. SA CV 95-488-GLT; United States v. Liizge,n,felter, No. SA CV 95-500-AHS; United States V. Mei,tdoza, No. CV 95-4280-HLII; United States V. Aliller, No. CV 95-3773-SVW; United States V. Montewegro, No. CV 95501.5-WMB; United States V. Morgaii,, No. CV 95-4629-SVW; United States v. Aforgan (Laivraitee), No. SA CV 94-1027AIIS; United States v. Afarolf, No. SA CV 95418-AIIS; United States V. Nassar, No. CV 96-1367-TJH; United States V. Ono, No. CV 95-3016-AWT; United States v. Parker, No. CV 95-1241-RMT; United States v. Patton, No. CV 95-4277WDK; United States v. Pena-Utias, No. CV 95-3627-JGD; United States V. Pitts, No. CV 95-2740-ER; United States V. Reaves, No. CV 94-4042; United States v. Rodliguez-ortiz, No. 95-5091-HLH; United States V. Andrew David Rubin, No. CV 95-108-RMT; United States v. Matthew Craig Rubin, No. CV 95-107-RMT; United States v. Smith, No. CV 95-3776JGD; United States V. Stephens, No. CV 95-2782-DWW; United States v. Tan, No. CV 95-3774-MRP'; United States V. Tillmait, No. CV 95-3772-JGD; United States V. Unaitka, No. CV 95-2146-AWT; United States V. Wheaton, No. SA CV 95-414-AHS; United States V. Yant, No. CV 95-2001-RSWL offenses. A ruling that the civil forfeiture of "proceeds" is not "punishment" would not necessarily dispose of that question with respect to facilitating property. In order to ensure that the Court will have a full opportunity to explore the issues that are dividing the lower courts, we respectfully suggest that the Court grant certiorari in both cases and consolidate them for argument.