U.S. v. Ursery

• Decision Date: 13 July 1995
• Docket Number: No. 94-1127,94-1127
• Citation: 1995 WL 411189,59 F.3d 568
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Guy Jerome URSERY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 568

59 F.3d 568

64 USLW 2068

UNITED STATES of America, Plaintiff-Appellee, v. Guy Jerome URSERY, Defendant-Appellant.

No. 94-1127.

United States Court of Appeals,

Sixth Circuit.

Argued Jan. 24, 1995.

Decided July 13, 1995.

Robert Haviland, Asst. U.S. Atty., Marlene Juhasz (argued and briefed), Asst. U.S. Atty., Office of the U.S. Atty., Flint, MI, for plaintiff-appellee.

Lawrence J. Emery, Lawrence J. Emery, P.C., Lansing, MI (argued and briefed), for defendant-appellant.

Before: JONES, CONTIE, and MILBURN, Circuit Judges.

JONES, J., delivered the opinion of the court, in which CONTIE, J., joined. MILBURN, J. (pp. 576-580), delivered a separate dissenting opinion.

NATHANIEL R. JONES, Circuit Judge.

Defendant Guy Jerome Ursery is appealing his conviction and sentence for manufacture of marijuana on several grounds. Because we find that the civil forfeiture judgment followed by a criminal conviction in this case constitute double jeopardy, we reverse the decision of the district court. Because we find this issue to be dispositive, we decline to reach the other issues raised by Ursery in this appeal.

I. Background

In May 1992, the ex-fiancee of Defendant Ursery's son, Heather McPherson, ¹ informed the Michigan State Police that Ursery grew marijuana on his property. Based on this information and further investigation by the police, the police obtained a warrant to search the Ursery home. On July 30, 1992, officers executed the warrant and seized 142 marijuana plants growing in six plots from a field to the west of the rural home. While the police initially believed that the field was part of Ursery's property, it was later determined that three of the plots were 25 feet from Ursery's property line and the other three plots were about 150 feet away from the property line. The plants ranged in height from about six inches to two feet. From the Ursery residence, the police obtained an ammunition case with two plastic bags filled with marijuana seeds, two loaded firearms, a box with ten plastic bags containing marijuana seeds, marijuana stems and stalks, and a growlight.

On September 30, 1992, the United States Attorney's office in Detroit instituted a civil forfeiture action against Ursery and his wife. The government brought the action pursuant to 21 U.S.C. Sec. 881(a)(7) ² and sought forfeiture of the Ursery residence. The action was brought before Judge Lawrence Zatkoff of the United States District Court for the Eastern District of Michigan and was placed on the court's civil docket. The government served a seizure warrant for the Ursery residence on Ursery at his residence on October 2, 1992. Judge Zatkoff conducted a scheduling conference on November 9, 1992, and scheduled trial for July 1993. The Urserys and the government entered into a settlement in which the Urserys agreed to pay the government $13,250.00. A consent judgment was entered on May 24, 1993. The Urserys paid the judgment on June 17, 1993.

During this time, on February 5, 1993, a federal grand jury in the Eastern District of Michigan returned a criminal indictment which charged Ursery with one count of manufacture of marijuana in violation of 21 U.S.C. Sec. 841(a)(1). Ursery's pretrial motions for an evidentiary hearing and to suppress evidence, for disclosure of informant, and to strike the mandatory minimum sentence provision were denied following argument on June 16, 1993. The case was originally assigned to Judge Stewart A. Newblatt, but was reassigned to Judge Avern Cohn for trial. Jury trial commenced on June 30, 1993 and the jury returned a guilty verdict on July 2, 1993. Ursery's posttrial motions for a new trial and for dismissal on double jeopardy grounds were denied on September 13, 1993. On January 19, 1994, Judge Cohn sentenced Ursery to 63 months imprisonment and four years of supervised release. On March 21, 1994, Judge Cohn granted Ursery's request for bond pending appeal.

II. Discussion

Ursery argues that his criminal prosecution and punishment after settlement of a civil forfeiture proceeding based on the same conduct violated the Double Jeopardy Clause of the Fifth Amendment. This court reviews de novo the constitutional issue of double jeopardy. Costo v. United States, 904 F.2d 344, 346 (6th Cir.1990).

A. No Waiver

We address first, however, the government's argument that Ursery has waived his claim of double jeopardy. Ursery first raised his claim of double jeopardy in a posttrial Motion for Dismissal. The government argues that Federal Rule of Criminal Procedure 12 requires that motions which object to the institution of the proceedings must be raised prior to trial or they are waived. See Fed.R.Crim.P. 12(b)(1). Rule 12 also explicitly states that "the court for cause shown may grant relief from the waiver." See Fed.R.Crim.P. 12(f).

Our response to the government's argument is twofold. First, we note that although the government raised this issue of waiver below, the district court did not deem Ursery's double jeopardy argument waived, but addressed the merits of the issue. As such, we are entitled to review this as an issue that was passed upon below. ³ Second, we find that Ursery has shown cause for not raising the Double Jeopardy issue prior to trial in indicating that the Supreme Court's decision in Austin v. United States, --- U.S. ----, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), which clarified its position that any civil forfeiture under 21 U.S.C. Sec. 881(a)(7) constitutes punishment, was decided on June 28, 1993, a mere two days before Ursery's criminal trial commenced. Thus, we find that Ursery did not waive his double jeopardy claim, and we turn to the merits of his claim.

B. Protection of the Double Jeopardy Clause

"[T]he Double Jeopardy Clause protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense." United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989). As the Ninth Circuit has recently noted, "at its most fundamental level [the Double Jeopardy Clause] protects an accused against being forced to defend himself against repeated attempts to exact one or more punishments for the same offense." United States v. $405,089.23 U.S. Currency, 33 F.3d 1210, 1215 (9th Cir.1994). To decide whether the government has violated Ursery's constitutional right this court must make three key determinations: (1) whether the civil forfeiture in the instant case constitutes "punishment " for double jeopardy purposes; (2) whether the civil forfeiture and criminal conviction are punishment for the same offense; and (3) whether the civil forfeiture and criminal prosecution are separate proceedings. Because we find the answer to each of these questions to be in the affirmative, we hold that Ursery's criminal conviction is a second punishment that violates the Double Jeopardy Clause.

The district court denied Ursery's motion for dismissal on double jeopardy grounds stating the following:

The forfeiture proceeding was settled by a consent judgment. That is not an adjudication. Furthermore, the forfeiture proceeding and criminal conviction were "part of a single, coordinated prosecution of [a] person[ ] involved in alleged criminal activity." United States v. Millan, (2d Cir.1993).

J.A. at 29-30. For the reasons that follow, we reverse this holding of the district court.

C. Jeopardy Attached

Before addressing the three key questions of the double jeopardy analysis outlined above, we note our first disagreement with the district court: the fact that the civil forfeiture proceeding was settled by a consent judgment does not preclude a double jeopardy analysis here. The consent judgment in the forfeiture proceeding was an adjudication for double jeopardy purposes because jeopardy attached when the judgment of forfeiture was entered against Ursery.

Ursery's consent judgment in his civil forfeiture action is analogous to a guilty plea entered pursuant to a plea agreement in a criminal case. Although in jury trials, jeopardy attaches when the jury is sworn, Crist v. Bretz, 437 U.S. 28, 38, 98 S.Ct. 2156, 2162, 57 L.Ed.2d 24 (1978), and in nonjury trials jeopardy attaches "when the court begins to hear evidence," Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975), jeopardy attaches to a guilty plea pursuant to a plea agreement upon the court's acceptance of the plea agreement. United States v. Smith, 912 F.2d 322, 324 (9th Cir.1990); United States v. Kim, 884 F.2d 189, 191 (5th Cir.1989); Fransaw v. Lynaugh, 810 F.2d 518, 523 & n. 9 (5th Cir.) (collecting cases), cert. denied, 483 U.S. 1008, 107 S.Ct. 3237, 97 L.Ed.2d 742 (1987); United States v. Vaughan, 715 F.2d 1373, 1378 n. 2 (9th Cir.1983). The fact that there has been no trial in which a jury is sworn or the court hears evidence does not preclude jeopardy from attaching to a plea entered pursuant to a plea agreement. Similarly, the fact that there has been no trial in a civil forfeiture proceeding does not preclude the attachment of jeopardy to a forfeiture judgment. Jeopardy attaches in a nontrial forfeiture proceeding when the court accepts the stipulation of forfeiture and enters the judgment of forfeiture. See United States v. Tamez, 881 F.Supp. 460, 466 (E.D.Wash. 1995) (holding that jeopardy attached to stipulated civil forfeiture when court entered the decree of forfeiture).

Nor does the Seventh Circuit's holding in United States v. Torres, 28 F.3d 1463, 1465 (7th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 669, 130 L.Ed.2d 603 (1994), support the argument that jeopardy did not attach to the judgment of forfeiture in the instant case. In Torres the Seventh Circuit held the following:

Torres received notice inviting him to make a claim in the civil forfeiture proceeding. He did not. As a result, he did not become a party to the...