Appeal from the Circuit Court of Kane County. No. 92-CF-1057. Honorable Barry E. Puklin, Judge, Presiding. Appeal from the Circuit Court of Kane County. No. 92-CF-2086. Honorable Melvin E. Dunn, Judge, Presiding.
Rehearing Denied March 29, 1995.
The Honorable Justice Bowman delivered the opinion of the court: McLAREN, P.j., and Geiger, J., concur.
The opinion of the court was delivered by: Bowman
JUSTICE BOWMAN delivered the opinion of the court:
The above-titled cases have been consolidated for decision, each having raised a double jeopardy issue premised on similar facts and circumstances. Both appeals are taken pursuant to Supreme Court Rule 604(f), which permits the appeal to the appellate court of thedenial of a motion to dismiss a criminal proceeding on grounds of former jeopardy. 145 Ill. 2d R. 604(f).
The substantive facts in both cases are undisputed. In case No. 2-94-0111, defendant Roderick Turner was charged by grand jury indictment on January 5, 1993, with unlawful possession of a controlled substance (720 ILCS 570/402(a)(2) (West 1992)), unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(2) (West 1992)), and unlawful possession of a controlled substance without a tax stamp (35 ILCS 520/10 (West 1992)). At the time of Turner's arrest on these charges, the State seized $2,165 in cash. The State then sought forfeiture of this sum under the Illinois Controlled Substances Act (Controlled Substances Act) (720 ILCS 570/505 (West 1992)) and the Drug Asset Forfeiture Procedure Act (Forfeiture Act) (725 ILCS 150/1 et seq. (West 1992)). Turner filed a claim contesting the forfeiture and, on August 20, 1993, a hearing was held. Following the hearing, the court ordered the cash forfeited. No appeal was taken from the forfeiture.
Following the forfeiture, Turner moved to dismiss the criminal case on grounds of double jeopardy. (725 ILCS 5/114-1(2) (West 1992); U.S. Const., amend. V; Ill. Const. 1970, art. I, § 10.) The motion alleged that the asset forfeiture constituted punishment for double jeopardy purposes and any subsequent prosecution for the same offense violated the constitutional protection against double jeopardy. The motion to dismiss was denied, and this timely appeal followed.
In case No. 2-93-1376, defendant George Towns was charged with unlawful possession of a controlled substance (720 ILCS 570/401(c)(2) (West 1992)), unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/402(c) (West 1992)), and unlawful possession of a controlled substance without a tax stamp (35 ILCS 520/10 (West 1992)). The State sought forfeiture of $411 in cash that was seized from Towns at the time of his arrest. Towns did not file a claim to the money, and it was ordered forfeited nonjudicially under section 6 of the Forfeiture Act (725 ILCS 150/6 (West 1992)).
The criminal case proceeded to a bench trial, and Towns was found guilty of possession of a controlled substance and not guilty of the other two charges. Prior to sentencing, Towns, like Turner, filed a motion to dismiss on grounds of double jeopardy. (725 ILCS 5/114-1(2); U.S. Const., amend. V; Ill. Const. 1970, art. I, § 10.) The motion contained the same allegations as those made in Turner's motion. The trial court denied the motion to dismiss, and this timely appeal followed.
On appeal, defendants contend that a reading of the Supreme Court's recent holding in Austin v. United States (1993), 509 U.S. ,125 L. Ed. 2d. 488, 113 S. Ct. 2801, leads inescapably to the conclusion that asset forfeitures under the Illinois Controlled Substances Act (720 ILCS 570/100 et seq. (West 1992)) constitute punishment for double jeopardy purposes. Defendants acknowledge that the Illinois Supreme Court recently confronted this issue in People v. 1988 Mercury Cougar (1992), 154 Ill. 2d 27, 180 Ill. Dec. 323, 607 N.E.2d 217, where it held that a civil forfeiture following a criminal prosecution for the same offense does not violate the double jeopardy clause. Defendants, however, maintain that because Austin and its progeny establish that forfeitures under a nearly identical Federal statute are punishment, Mercury Cougar's holding is no longer valid.
In response, the State argues that (1) Austin is inapplicable to the present cases because its conclusion that asset forfeitures are punishment arose in the context of an eighth amendment claim rather than a fifth amendment double jeopardy claim; and (2) even if Austin is applicable to the present cases, double jeopardy is not violated because the asset forfeitures and criminal charges against defendants were part of a single, coordinated prosecution. Additionally, with respect to defendant Towns, the State asserts that jeopardy never attached in the forfeiture proceeding because Towns failed to make a claim to the money which the State sought to forfeit. As a result, the State asserts, Towns was never in jeopardy in the forfeiture case and his criminal prosecution did not violate double jeopardy.
The double jeopardy clause of the fifth amendment to the United States Constitution reads: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." (U.S. Const., amend. V; see also Ill. Const. 1970, art. 1, § 10 ("No person shall be *** twice put in jeopardy for the same offense").) The double jeopardy clause protects against three distinct abuses: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense when sought in separate proceedings. (See, e.g., United States v. Halper (1989), 490 U.S. 435, 440, 104 L. Ed. 2d 487, 496, 109 S. Ct. 1892, 1897; North Carolina v. Pearce (1969), 395 U.S. 711, 717, 23 L. Ed. 2d 656, 89 S. Ct. 2072, 2076.) The third of these protections -- the subject of this appeal -- is deeply ingrained in the Anglo-American system of jurisprudence. ( Green v. United States (1957), 355 U.S. 184, 187, 2 L. Ed. 2d 199, 78 S. Ct. 221, 223.) "Fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization. Its roots run deep into Greek and Roman times." Bartkus v. Illinois (1959), 359 U.S. 121, 151-52, 3 L. Ed. 2d 684, 706, 79 S. Ct. 676, 696 (Black, J., dissenting).
The fundamental purpose of the double jeopardy clause is to protect an accused from being forced to defend against repeated attempts to exact one or more punishments for the same offense and applies with equal force whether the first prosecution results in a conviction or an acquittal. ( Abbate v. United States (1959), 359 U.S. 187, 198-99, 3 L. Ed. 2d 729, 736, 79 S. Ct. 666, 672-73; United States v. $405,089.23 U.S. Currency (9th Cir. 1994), 33 F.3d 1210, 1215.) The underlying principle of the protection against double jeopardy is that "'a person shall not be harassed by successive trials; that an accused shall not have to marshal the resources and energies necessary for his defense more than once for the same alleged criminal acts.'" Abbate v. United States (1959), 359 U.S. 187, 198-99, 3 L. Ed. 2d 729, 736, 79 S. Ct. 666, 673, quoted in U.S. Currency, 33 F.3d at 1215.
In the present case, to determine whether the State's attempt to prosecute criminally defendants following the forfeitures contravenes the double jeopardy clause, we consider two questions: (1) did the civil forfeiture under the Act amount to a "punishment" for double jeopardy purposes?; and (2) was there a separate prosecution in each case? The criminal prosecutions in the present cases violate the double ...