U.S. Challenges Bar to Seizure of Felons’ Assets

The Justice Department Thursday urged the U.S. 9th Circuit Court of Appeals to reverse a unanimous ruling that bars the government from taking the criminal proceeds of convicted felons on grounds that doing so violates the constitutional guarantee against double jeopardy.

In a petition for rehearing filed with the court in Los Angeles, U.S. Atty. Norma M. Manella said that the Sept. 6, 1994, ruling by Judge Stephen Reinhardt, supported by two colleagues, “will gravely impair the government’s ability to enforce civil forfeiture remedies as intended by Congress.”

The ruling came in the case of James Wren and Charles Arlt, who after being convicted of methamphetamine manufacturing, money laundering and conspiracy, were ordered in a civil proceeding to forfeit bank account funds, automobiles, silver bars, a helicopter and a ship.

The two--both serving sentences at Lompoc federal prison--appealed, saying that the forfeiture was double jeopardy.

In defending against the double jeopardy appeal, the government cited rulings by federal circuit courts in New York and Atlanta which held that a civil forfeiture and the underlying criminal case were part of “a single, coordinated prosecution” and thus not double jeopardy.

But the 9th Circuit panel, which included Judge Cecil Poole and senior district court Judge Jack Tanner, said that reasoning “contradicts controlling Supreme Court precedent as well as common sense.”

“We fail to see how two separate actions, one civil and one criminal, instituted at different times, tried at different times before different fact finders, presided over by different district judges and resolved by separate judgments, constitute the same ‘proceeding,’ ” the court said.

A Justice Department source said that the ruling could lead to an undetermined number of convicted criminals seeking to overturn their convictions and would force the government to limit its use of civil forfeiture in the 9th Circuit, which includes California, Oregon, Washington, Arizona, Montana, Nevada, Idaho, Hawaii and Alaska.

If the full 9th Circuit declines to reconsider the case or, in the end, decides against the government, an appeal to the Supreme Court would be likely because of the split in circuit court holdings on the issue.

The government said that the 9th Circuit panel had misconstrued a 1989 Supreme Court ruling by holding that all actions brought under the civil forfeiture statutes in the Los Angeles case constitute “punishment” and thus may not be imposed on an already convicted defendant.

The Justice Department said that the 1989 ruling held that such civil action sanctions against an already convicted defendant constitute a second punishment only in “rare circumstances.”

“Congress has clearly expressed its intent by repeatedly authorizing the government to pursue both criminal and civil sanctions in parallel actions,” Manella argued in the rehearing petition.