Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 79 C 4045 -- Nicholas J. Bua, Judge .
Before Cummings, Chief Circuit Judge, Bauer, Circuit Judge, and Spears,*fn* Senior District Judge.
Petitioner-appellant Larry Fulton appeals from the denial of his petition for a writ of habeas corpus. We affirm.
Fulton was indicted in Illinois for armed robbery, aggravated battery, attempted murder, and murder. Fulton's car, a 1968 black over green Oldsmobile Cutlass, matched the description of the getaway car. Fulton admitted that he drove two men to the area of the crime. He claimed, however, that he was ordered to drive them there by his sister's boyfriend and that he was told that the men were musicians on the way to rehearsal. Fulton was tried as a principal*fn1 and as an aider and abettor. The jury convicted him of all charges.
Prior to trial, the State of Illinois instituted a forfeiture action against Fulton's car. Ill.Rev.Stat. ch. 38, § 36-2. The trial court granted Fulton's motion for a directed verdict, ruling that "there is no information persuasive to connect the automobile with the offense in question, so the plaintiff's case has to fall on that basis."
On appeal to the Illinois Appellate Court, Fulton claimed that the result of the forfeiture action collaterally estopped the State from trying Fulton as an aider and abettor. The Illinois Appellate Court held collateral estoppel inapplicable because "the ultimate issue of whether the defendant participated in the crime was not litigated in the civil forfeiture proceeding." People v. Fulton, 68 Ill.App.3d 915, 25 Ill.Dec. 334, 386 N.E.2d 605, 613 (Ill.App.1979).
On his petition for a writ of habeas corpus, the district court held that Fulton's conviction was not barred by double jeopardy. It stated that it could not find "a single case holding that a prior civil in rem forfeiture proceeding bars a subsequent criminal prosecution."
Fulton's first contention on appeal is that his conviction violated the double jeopardy clause.*fn2 His claim can succeed only if the prior forfeiture proceeding was a criminal trial or punishment. Helvering v. Mitchell, 303 U.S. 391, 399, 58 S. Ct. 630, 633, 82 L. Ed. 917 (1938).
The Illinois forfeiture proceeding, however, is considered by the Illinois courts as a civil in rem action against the seized vehicle. Ill.Rev.Stat. ch. 38, § 36-2;*fn3 People ex rel. Hanrahan v. 1965 Oldsmobile, 52 Ill.2d 37, 284 N.E.2d 646, rev'd on other grounds per curiam sub nom. Robinson v. Hanrahan, 409 U.S. 38, 93 S. Ct. 30, 34 L. Ed. 2d 47 (1972). The action is civil in form: it is governed by the Illinois Civil Practice Act and the State need prove the elements of the forfeiture by only the preponderance of the evidence. These factors are considered by the Supreme Court determinative of whether a forfeiture proceeding is criminal or civil for double jeopardy purposes. One Lot Emerald Cut Stones and One Ring v. United States, 409 U.S. 232, 235-37, 93 S. Ct. 489, 492-93, 34 L. Ed. 2d 438 (1972) (per curiam). Since Fulton was not subjected to a criminal action in the forfeiture suit, his criminal trial did not offend double jeopardy.
The next issue is whether the judgment in the forfeiture proceeding was entitled to any preclusive effect in Fulton's criminal trial. Fulton argues here that the determination that his car was not involved in a crime collaterally estopped the State from introducing evidence about the car in the trial.
The Supreme Court has expressly declined to rule whether a refusal to apply collateral estoppel when double jeopardy is not offended violates due process. Hoag v. New Jersey, 356 U.S. 464, 471, 78 S. Ct. 829, 834, 2 L. Ed. 2d 913 (1958). Apparently, only one circuit has decided that question, holding that failing to give collateral estoppel effect to an order suppressing evidence violates due process. United States ex rel. DiGiangiemo v. Regan, 528 F.2d ...