even if close in time, are still double jeopardy."
Id. at 1465.
In the instant case, Jones was charged with six criminal
counts in 1991 and was convicted in two separate jury trials
in December 1992 and June 1993. However, the Government's
original Complaint for civil forfeiture was not filed until
October 26, 1992, and its Amended Complaint was not filed
until September 20, 1993. These time discrepancies show that
the civil forfeiture constituted a separate proceeding from
the criminal Indictment. The Government does not even dispute
that the two actions here constitute separate proceedings
under the Double Jeopardy Clause. Thus, the Court finds that
the civil forfeiture and criminal indictment actions are
separate proceedings for double jeopardy purposes.
Civil Forfeiture As Punishment
In order to invoke the Double Jeopardy Clause, the civil
forfeitures at issue must be considered "punishment."
Ursery, 59 F.3d at 571. In Halper, the U.S. Supreme Court
considered whether and under what circumstances a civil penalty
may constitute "punishment" for purposes of double jeopardy
analysis. 490 U.S. at 436, 109 S.Ct. at 1895. In that case, the
defendant was criminally prosecuted for 65 counts of making
false medical reimbursement claims totaling approximately $585.
Id. at 437, 109 S.Ct. at 1896. He was convicted and sentenced
to two years imprisonment and a $5,000 fine. Id. Subsequently,
the government brought a civil action under the False Claims
Act, 31 U.S.C. § 3729-31, which potentially subjected Halper
to a civil penalty of $130,000 for the false claims. Id. at
438, 109 S.Ct. at 1896.
The Supreme Court determined that a particular civil penalty
could be "so extreme and so divorced from the Government's
damages and expenses as to constitute punishment" in spite of
its civil label. Id. at 442, 109 S.Ct. at 1898. Reasoning that
"the notion of punishment . . . cuts across the division
between the civil and the criminal law," the Court held that "a
civil sanction that cannot fairly be said solely to serve a
remedial purpose, but rather can only be explained as also
serving either retributive or deterrent purposes, is
punishment." Id. at 447-48, 109 S.Ct. at 1901-02. Thus, the
Court concluded that under the Double Jeopardy Clause, a
defendant already punished in a criminal prosecution could not
be subjected to an additional civil sanction "to the extent
that the second sanction may not fairly be characterized as
remedial, but only as a deterrent or retribution." Id. at
448-49, 109 S.Ct. at 1901-02.
In Austin, the Supreme Court was presented with the question
whether civil forfeitures of property under
21 U.S.C. § 881(a)(4) and 881(a)(7) constitute "punishment" so as to be
subject to the Excessive Fines Clause of the Eighth Amendment.
___ U.S. at ___, 113 S.Ct. at 2812. Relying upon Halper, the
Court found that these civil forfeiture provisions did
constitute "punishment" because the penalties did not serve
solely a remedial purpose. Id. The Court gave three reasons for
its conclusion that civil forfeiture was punitive in nature.
First, the Court reasoned that the inclusion of an "innocent
owner" defense in each statute served to "focus the provisions
on the culpability of the owner in a way that makes them look
more like punishment, not less." Id. at ___ - ___, 113 S.Ct. at
2810-11. The existence of the defenses in the statutes implied
a "congressional intent to punish only those involved in drug
trafficking." Id. at ___, 113 S.Ct. at 2811. Second, the Court
reasoned that "Congress has chosen to tie forfeiture directly
to the commission of the drug offenses." Id. Third, the Court
found that the legislative history of the provisions confirmed
their punitive nature. Congress had passed the statutes in
order to supplement traditional criminal sanctions that "deter
or punish the enormously profitable trade in dangerous drugs."
Thus, under Halper and Austin, any civil forfeiture under
21 U.S.C. § 881(a)(7) constitutes "punishment" for double jeopardy
purposes. Stated more clearly, Halper requires that in order to
be considered punishment under the Double Jeopardy Clause, the
penalty must not be solely remedial in nature. The Court in
Austin applied the Halper analysis and found that forfeitures
§ 881(a)(7) are not solely remedial in nature. Thus,
forfeitures under § 881(a)(7) must constitute punishment under
the Double Jeopardy Clause. The Sixth Circuit has explicitly
reached this result. Ursery, 59 F.3d at 573.*fn9 See also
United States v. McCaslin, 863 F. Supp. 1299, 1302 (W.D.Wash.
1994) (same). The Court agrees and finds that a forfeiture of
the real estate in Count I of the United States' Amended
Complaint would constitute double jeopardy. Thus, the United
States' Motion for Summary Judgment is denied on Count I and
Jones' Motion for Summary Judgment is granted on Count I.
Unfortunately, the Government only seeks a § 881(a)(7)
forfeiture in Count I of its Amended Complaint. The other
counts are brought pursuant to 21 U.S.C. § 881(a)(6), a statute
not explicitly dealt with by the Court in Halper or Austin. The
applicability of these cases to § 881(a)(6) is a hotly
contested area among federal circuit courts. On the one hand,
the Ninth Circuit has mechanically applied the holdings in
Halper and Austin to find that § 881(a)(6) forfeitures also
constitute punishment under the Double Jeopardy Clause. United
States v. $405,089.23 U.S. Currency, 33 F.3d 1210, 1219 (9th
Cir. 1994), am'd on denial of reh'g, 56 F.3d 41 (9th Cir.
1995). On the other hand, many courts have attempted to
distinguish § 881(a)(6) as not constituting punishment at all.
See, e.g., United States v. Tilley, 18 F.3d 295, 300 (5th Cir.
1994), cert. denied, ___ U.S. ___, 115 S.Ct. 573, 130 L.Ed.2d
490 (1994); United States v. $288,930.00 in U.S.
Currency, 838 F. Supp. 367, 370-71 (N.D.Ill. 1993); Dawkins v.
United States, 883 F. Supp. 83, 88-89 (E.D.Va. 1995).
The rationale of those cases which have tried to distinguish
§ 881(a)(6) forfeitures is that the property involved is the
unlawful proceeds of drug sales. Thus, the forfeiture is not
punishment because "the forfeiting party loses nothing to which
the law ever entitled him." Tilley, 18 F.3d at 300. The Fifth
Circuit in Tilley reasoned:
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.
Id. The court concluded, "[W]e believe the forfeiture of
proceeds from illegal drug sales is more closely akin to the
seizure of the proceeds from the robbery of a federal bank than
the seizure of lawfully derived real property." Thus, the
forfeiture of illegal proceeds "merely places that party in the
lawfully protected financial status quo that he enjoyed prior
to launching his illegal scheme," id., and is solely remedial
in nature. Halper, 490 U.S. at 448, 109 S.Ct. at 1901-02.