This document scanned in by Forfeiture endangers American Rights. It may contain typographical errors. ============================================================= OCTOBER TERM, 1995 No. UNITED STATES OF AMERICA, PETITIONER V. Guy JEROME URSERY PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT QUESTION PRESENTED Whether the Double Jeopardy Clause of the Fifth Amendment prohibits respondent's criminal prosecution for manufacturing marijuana because the government obtained a consent judgment in a civil action that sought the forfeiture of property of respondent on the ground that it facilitated illegal drug activities, =========================================================== OCTOBER TERM, 1995 No. UNITED STATES OF AMERICA, PETITIONER V. Guy JEROME URSERY PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT The Solicitor General, on behalf of the United States of America, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Sixth Circuit in this case. OPINIONS BELOW The opinion of the court of appeals (App., infra, la-27a) is reported at 69 F.3d 568. The order of the district court rejecting respondent's double jeopardy claim (App., infra, 38a-41a) is not reported. JURISDICTION The judgment of the court of appeals was entered on July 13, 1995. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). ======================================================== 2 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 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 and 881 are reproduced at App., infra, 49a-71a. STATEMENT 1. On July 30, 1992, police officers executing a warrant at respondent's property discovered 142 marijuana plants growing on land just outside the boundaries of the property. Inside respondent's house, the officers discovered marijuana seeds, stems, and stalks, two loaded firearms, and a growlight. App. infra 2a. On September 30, 1992, the government filed a civil complaint, pursuant to 21 U.S.C. 881 (a) (7), seeking forfeiture of respondent's residence. App., infra, 2a-3a. The complaint alleged that, "[f]or several years, the defendant real property was used or intended to be used to facilitate the unlawful processing and distribution of a controlled substance." Id. at 29a. The court scheduled the trial of that action for July 1993. Before trial, however, respondent and his wife entered into a settlement under which they agreed to pay the government $13,250 in lieu of the forfeiture. Id. at 32a-34a. A consent judgment embodying that agreement was entered on May 24, 1993. Id. at 35a-37a. On February 5, 1993, while the civil action was pending, a federal grand jury returned a criminal indictment charging respondent with one count of manufacturing marijuana, in violation of 21 U.S.C. 841 (a) (1). App,, infra, 3a. A jury trial on that ================================================================ 3 charge commenced on June 30, 1993, and concluded with respondent's conviction on July 2, 1993. Ibid. Following his conviction, respondent moved to dismiss the indictment on the ground that his "conviction constitute[d] double jeopardy, as a result of the civil forfeiture proceeding instituted and concluded in favor of the government before his conviction." Id. at 38a. The district court denied that motion, explaining that the consent judgment in the forfeiture action was not an "adjudication" and that, in any event, the forfeiture and the criminal conviction were two components of "a single, coordinated prosecution." Id. at 39a. Respondent was sentenced to 63 months' imprisonment. Id. at 44a. 2. A divided panel of the Sixth Circuit reversed respondent's criminal conviction on the ground that the conviction was "a second punishment that violates the Double Jeopardy Clause." App., infra, 6a. The court first rejected the district court's view that the consent decree in the civil forfeiture proceeding was not an "adjudication" for double jeopardy purposes. By analogy to cases in which a criminal defendant pleads guilty pursuant to a plea agreement, the court concluded that jeopardy attached in the forfeiture proceeding when the court accepted the stipulation of forfeiture and entered a judgment of forfeiture against respondent. Id. at 7a. The court next concluded that "any civil forfeiture under [] 21 U.S.C.  881 (a) (7) constitutes punishment for double jeopardy purposes." App., infra, 1la. The court believed that under United States v. Halper, 490 U.S. 435 (1989), and Austin v. United States, 113 S. Ct. 2801 (1993), such forfeitures are punitive because they do not "serve solely a remedial purpose." App,) infra, 10a. The court also held that =============================================================== 4 under the "elements" test of Blockburger v. United States, 284 U.S. 299 (1932), the civil forfeiture and the criminal conviction were "punishment for the same offense because the forfeiture necessarily requires proof of the criminal offense," and therefore the criminal offense "is in essence subsumed by the forfeiture statute.," App., infra, 12a. Finally, the court rejected the district court's conclusion that the civil forfeiture and criminal actions were a single proceeding" for purposes of the Double Jeopardy Clause. App., infra, 13a-17a. The court recognized that "[t]here is disagreement among the circuits * * * as to when a civil forfeiture action and criminal prosecution can properly be considered components of a single proceeding so that double jeopardy is not triggered." Id. at 14a (citing cases). It also "acknowledge[d]" but "f[ou]nd it unnecessary to fully adopt" the Ninth Circuit's suggestion in United States v. $405,089.23, 33 F.3d 1210, 1216 (1994), amended on denial of reh'g, 56 F.3d 41 (1995), petition for cert. pending, No. 95, that "parallel civil forfeiture and criminal proceedings will always violate the Double Jeopardy Clause." App., infra, 15a-16a. In the instant case, the court concluded, there was "no indication that the government intended to pursue the civil forfeiture action and the criminal prosecution" of respondent "as a coordinated proceeding." Id. at 16a. Judge Milburn dissented. App., infra, 19a-27a. He argued that this case involved "a sufficiently coordinated proceeding" to dispel double jeopardy concerns. Id. at 20a. Judge Milburn noted that the Eleventh Circuit in United States v. One Single Family Residence, 13 F.3d 1493 (1994), concluded that civil and criminal proceedings were sufficiently coordinated to be the same case for double jeopardy ================================================================ 5 purposes even though an indictment was returned five months after the civil forfeiture action was instituted, and the civil and criminal judgments were entered at different times. App., infra, 21a n.2. The key to that conclusion, Judge Milburn contended, was a recognition that contemporaneous civil and criminal proceedings do not ordinarily raise the specter that the government is seeking to punish the defendant a second time simply because it is dissatisfied with the sanction it obtained at a first trial. Ibid. Following the lead of the Eleventh Circuit, and of the Second Circuit in United States v. Millan, 2 F.3d 17 (1993), cert. denied, 114 S. Ct. 922 (1994), Judge Milburn urged that the potential fox, government abuse should be the central factor in determining whether contemporaneous civil and criminal actions are a "single proceeding" for double jeopardy purposes. He concluded that the civil and criminal actions in this case were indeed a single proceeding, because they "took place in close time proximity to one another," id. at 22a, respondent understood when he settled the forfeiture action "that the government was pursuing its full range of remedies against him;" ibid., the government instituted both the civil forfeiture action and the criminal action "before it knew the outcome of either case," id. at 22a-23a, and the total punishment imposed in the coordinated proceeding did not exceed the punishment authorized by Congress, id. at 25a. Judge Milburn also disagreed with the majority's conclusion that the civil forfeiture and the crime for which respondent was convicted were "the same offense." App., infra, 26a-27a. He noted not only the different statutory elements of each "offense," but ============================================================== 6 also that the forfeiture complaint and the indictment alleged different theories of liability. The indictment charged respondent "with the manufacture of marijuana only during the year 1992" while the civil forfeiture complaint alleged that respondent's "property was involved in the commission or facilitation of both processing and distribution of a controlled substance over the course of several years." Id. at 26a, 27a. "Under those circumstances," he concluded, "the criminal prosecution and the civil forfeiture action would undoubtedly relate to separate offenses under the Double Jeopardy Clause." Id. at 27a. REASONS FOR GRANTING THE PETITION This case presents three related and important issues under the Double Jeopardy Clause. First, the Sixth Circuit erroneously concluded that the civil forfeiture of property used to facilitate criminal activity necessarily constitutes "punishment" under the Double Jeopardy Clause. Second, in concluding that the civil forfeiture and criminal conviction inflicted punishment for the "same offenses" the Sixth Circuit misapplied this Court's decision in Blockburger v. United States, 284 U.S. 299 (1932), and its progeny, which hold that two offenses are not the "same" if each has an element that the other does not have. Third, as Judge Milburn argued in dissent, the Sixth Circuit's conclusion that the civil and criminal actions against respondent and his property must be deemed "separate proceedings" serves no valid interest protected by the Double Jeopardy Clause. As with the Ninth Circuit's ruling in United States v. $405,089.23 (see 33 F.3d 1210 (1994), amended on denial of reh'g, 56 P.3d 41 (1995))f in which we have also filed a ====================================================== 7 petition for a writ of certiorari, the Sixth Circuit's rulings exacerbate a circuit conflict on the extent to which the government may pursue factually related civil forfeiture and criminal actions. Accordingly, this Court's review is warranted. 1. Traditionally, the civil forfeiture of property involved in criminal activity and the criminal prosecution of the property's owner for the same underlying conduct did not raise issues under the Double Jeopardy Clause. See, e.g., United States v. One Assortment of 89 Firearms, 465 U.S., 354, 362-366 (1984); Various, Items of Personal Property v. United States, 282 U.S., 577, 581 (1931). As we explain more fully in our petition in United States v, $405,089,23, however, in which we seek review of the Ninth Circuit's conclusion that the forfeiture of proceeds of narcotics activity always must be deemed "punishment" for double jeopardy purposes, the lower courts are deeply divided on the question whether, or to what extent, 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), have changed that rule. The Sixth Circuit held that the civil forfeiture of property used or intended to be used to facilitate drug trafficking always imposes "punishment" for double jeopardy purposes and that, under Halper, such a forfeiture bars a subsequent criminal punish- ment. The Court in Halper, however, cautioned that it was announcing a rule for "the rare case" in which ((a prolific but small-gauge offender [was subjected] to a [civil] sanction overwhelmingly disproportionate to the damages lie has caused," so that the sanction ============================================================== 8 "may not fairly be characterized as remedial, but only as a deterrent or retribution." 490 U.S. at 449. As Halper recognized, the government may exact civil sanctions that achieve "rough remedial justice" without raising double jeopardy concerns. Accordingly, under Halper, it is ordinarily necessary to examine the particular civil sanction imposed on a case-by-case basis to determine whether it constitutes "punishment" for double jeopardy purposes. Id. at 446; see also id. at 452-453 (Kennedy, J., concurring). This Court's decision in Austin v. United States, supra, does not require a categorical approach to forfeiture statutes for purposes of double jeopardy analysis. Austin held that the forfeiture provisions of 21 U.S.C. 881 (a) (7) -- the same statute at issue here -- impose "punishment" for purposes of the threshold applicability of the Eighth Amendment's Excessive Fines Clause. The Court suggested that the forfeiture provisions involved in that case were sufficiently bound up with the culpability of the property's owners as to render those provisions punitive in all applications, 113 S. Ct. 2806-2810, 2812 & n.14, and the Sixth Circuit found that conclusion dispositive of the punishment issue in the double jeopardy context as well. App., infra, l0a-lla. Austin recognized, however, that it "ma[de] little practical difference" in that case whether the Excessive Pines Clause was held to apply to all forfeitures under the statutes at issue in that case, "or only to those that cannot be characterized as purely remedial." 113 S. Ct. at 2812 n.14. That was true because the Eighth Amendment is relevant only when a fine is excessive and "a fine that serve[d] purely remedial purposes [could not] be considered 'excessive' in any event." Ibid. ============================================================== 9 In the double jeopardy context, a departure from Halper's case-by-case approach to the issue whether a particular civil sanction inflicts punishment has enormous practical consequences. In that setting, a categorical conclusion that all civil forfeitures under the statute at issue constitute punishment may completely bar a later criminal prosecution of the owner, even if the particular prior civil forfeiture was fairly characterized as substantially remedial. See Austin, 113 S. Ct. at 2805 n.4 (citing 89 Firearms and recognizing that statutory forfeitures may be wholly remedial). That result would greatly expand Halper's rule for the "rare case," 490 U.S. at 449, and would dramatically alter the common practice of pursuing both forfeiture of offending property as a civil remedy and punishment of its owner as a criminal remedy. Neither Halper nor a proper application of double jeopardy principles would support such a rule.[1] The punishment issue raised by this case differs to some extent from the analogous question presented by our petition in $405,089.23. Here, the complaint sought forfeiture of respondent's property on the theory that the property was used or intended to be used to facilitate the commission of a criminal offense. In $405,089,23, forfeiture was sought on the theory that the property represented the ill-gotten gains __________________ [1] This Court's double jeopardy decision in Department of Revenue of Montana V. Kurth Ranch, 114 S. Ct. 1937 (1994), that a particular state tax on the possession of dangerous drugs constituted punishment in all of its applications does not suggest otherwise. The analysis in that case was tailored to the specific nature and purposes of a tax statute, see id. at 1946, 1948, not to civil forfeitures or to other civil sanctions that may serve remedial aims, see 89 Firearms, supra. ================================================================ 10 from criminal activity, The Court's resolution of the punishment issue in $405,089-23 therefore will not necessarily resolve the analogous question in cases like this one. At the same time, the extent to which this Court's decisions since Halper changed the double jeopardy principles that have long applied to civil forfeitures of property used to commit criminal offenses has divided the lower courts, compare App., infra, lla, with United States v. Morgan, 51 F.3d 1105, 1113 (2d Cir. 1995) ("we have held that Halper does not apply to forfeiture claims") (citing United States v. $145,139, 18 F.3d 73, cert. denied, 115 S. Ct. 72 (1994) ), petition for cert. pending, No. 95-14 (July 3, 1995), and has generated considerable litigation throughout the country. For that reason, this case merits this Court's plenary consideration. 2. Even if the Sixth Circuit were correct in concluding that a civil forfeiture of property used or intended to be used to facilitate a narcotics offense must always be considered "punishment" for an "offense" for double jeopardy purposes, the court was wrong to treat the forfeiture "offense" as the "same offense" as the narcotics crime for which respondent was punished. Under Blockburger v. United States, 284 U.S. 299 (1932), 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 must prove to prevail under each. See Witte v. United States, 115 S. Ct. 2199, 2204 (1995); United States v. Dixon, 113 S. Ct. 2849, 2856 (1993).[2] _______________ [2] In Dixon, 113 S. Ct. at 2860, the Court overruled the "same-conduct" rule of Grady v. Corbin, 495 U.S. 508 (1990), [footnote continued on following page] ================================================================ 11 The Sixth Circuit concluded that the forfeiture and criminal "offenses" were the "same" in this case on the theory that the narcotics crime is a lesser-included offense of the forfeiture -- "[t]he criminal offense is in essence subsumed by the forfeiture statute." App., infra, 12a. That reasoning disregards the controlling decisions of this Court, which make clear that one "offense" is included within another only if every conceivable application of the "greater" offense necessarily establishes the existence of the "included" offense. See United States v. Woodward, 469 U.S. 105, 108 & n.4 (1985) (per curiam); Brown v. Ohio, 432 U.S. 161, 168 (1977) (offense is lesser-included under Blockburger 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., 705, 716 (1989). The statute that authorizes forfeiture does not "necessarily" require proof that the property's owner engaged in marijuana manufacturing; forfeiture may be appropriate if the property in question facilitated any narcotics violation committed by anyone, even if that person is not the owner. See 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") ; see also Austin, 113 S.Ct. at 2810 n.11. Indeed, forfeiture is authorized by 21 U.S.C. 881 (a) (7) even if the property was under which a subsequent prosecution was generally prohibited if the government, to establish an essential element of that prosecution, would have to prove conduct that constituted an offense for which the defendant had already been prosecuted. =========================================================== 12 merely "intended" for use in a narcotics offense. Conversely, "the substantive criminal provision under which [respondent] was prosecuted[] does not render unlawful an intention to [manufacture marijuana]; only the completed act of [manufacturing marijuana] is made a crime" by 21 U.S.C. 841(a), 89 Firearms, 465 U.S., 'at 363-364, and then only if committed with criminal intent.[3] In those circumstances, the Sixth Circuit erred in concluding that the nar- cotics crime was necessarily included within the forfeiture "offense." 3. Finally, the Sixth Circuit was also wrong to conclude that the parallel civil and criminal actions in this case did not constitute a "single proceeding" for double jeopardy purposes. While recognizing a split in the circuits on whether parallel civil and criminal actions may be deemed a "single proceeding," App., infra, 14a, the Sixth Circuit exacerbated that division of authority. The Sixth Circuit declined to adopt the Ninth Circuit's conclusion that parallel actions may never be considered a single proceeding. It also rejected the Second and Eleventh Circuit's view that such parallel actions generally do not present the potential for abuse that the Double Jeopardy Clause is designed to prevent i.e., that the government "is __________________ [3] Nor does the crime of manufacturing marijuana require proof that any property was used, or intended for use, to facilitate the production of the contraband. See 21 U.S.C. 841 (a) (1). Indeed, the marijuana plants that formed the basis for- respondent's conviction were growing beyond respondent's property line (App., infra, 2a), and it was the additional discovery of items such as marijuana seeds, a growlight, and firearms on the property that supported the forfeiture action. ============================================================= 13 seeking the second punishment because it is dissatisfied with the sanction obtained in the first proceeding." Halper, 490 U.S. at 451 n.10. Instead, as Judge Milburn noted in dissent, App., infra, 22a, the Sixth Circuit adopted "a case-by-ease comparison of the level of coordination" that is unrelated to the purposes of the Double Jeopardy Clause. Nothing suggests that the government commenced the criminal prosecution against respondent out of dissatisfaction with the result obtained in the civil proceeding. Respondent was indicted in February 1993, long before the outcome of the forfeiture pro- ceeding was known. Indeed, the forfeiture action was scheduled for trial in June 1993. The government's simultaneous pursuit of these cumulatively available remedies does not suggest any intent to obtain double punishment in sequential proceedings. Rather, it re- flects the fact that civil and criminal actions cannot be formally joined in our system of procedure. And, although respondent elected to resolve the civil part of the case by settlement, he "knew at the time of the settlement in the civil forfeiture action that a criminal action was pending." App.,,infra, 23a (Milburn, J., dissenting). He was therefore aware "that the government was pursuing its full range of remedies against him." Id. at 22a. Those circumstances do not bespeak the type of government overreaching that calls into action the doctrine against multiple punishments in successive proceedings. See Halper, 490 U.S. at 451 n.10. 4. The decision in this case will have a substantial and adverse impact on the administration of justice in the Sixth Circuit. The United States will justifiably be reluctant to commence, prosecute, or settle ============================================================ 14 civil forfeiture actions expeditiously if by so doing it necessarily precludes the prosecution of serious criminal offenses. Moreover, as the experience of the Ninth Circuit demonstrates, the decision below is likely to engender literally hundreds of motions to dismiss indictments, post-trial motions for relief, and collateral attacks on existing judgments. That consequence will add substantial delay to the adjudication of defendants' guilt and require burdensome posttrial litigation over settled criminal convictions. Both the Sixth Circuit's decision and the Ninth Circuit's decision in $405,089,23, in which we have also filed a petition for a writ of certiorari, are before the Court at the same time. As we explain in our petition in $405,089.23, we believe that the Court should grant certiorari and give plenary consideration to both cases. While the two 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. In particular, as we have noted, $405,089.23 involves property alleged to be the "proceeds" of criminal activity, not property alleged to have been used or intended for use to facilitate the commission of a narcotics offense.[4] In order to ensure that this ___________________ [4] Because this case involves a civil proceeding that the Sixth Circuit believed was followed by a constitutionally separate criminal prosecution, consideration of this case together with $405,089.23 may also allow the Court to settle a question that was expressly left undecided in Kurth Ranch, i.e., what significance the order of the proceedings has in the double jeopardy analysis, see 114 S. Ct. at 1947 n.21, including questions as to the appropriate remedy. In this connection, we note that in remanding for further proceedings, Halper itself suggested that a second sanction would be barred only to the extent that it was punitive, 490 U.S. at 449-450, 452, and that this Court's [footnote continued on next page] ================================================================ 15 Court has a full opportunity to explore the double jeopardy issues that continue to divide the lower courts, we respectfully suggest that the Court grant certiorari in both cases and consolidate them for argument. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. DREW S. DAYS, III Solicitor General JO ANN HARRIS Assistant Attorney General MICHAEL R. DREEBEN Deputy Solicitor General MIGUEL A. ESTRADA Assistant to the Solicitor General DANIEL S. GOODMAN Attorney AUGUST 1995 ______________________ [footnote continued from previous page] cases support the proposition that double jeopardy violations, like other constitutional violations, must be remedied only to the extent of the injury suffered. See, e.g., Jones v. Thomas, 491 U.S. 3769 380-387 (1989); Morris V. Mathews, 475 U.S. 237, 244-247 (1986).