U.S. v. Schinnell

• Decision Date: 09 April 1996
• Docket Number: 95-10213,Nos. 94-11155,s. 94-11155
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Shawnee Louise SCHINNELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1064

80 F.3d 1064

UNITED STATES of America, Plaintiff-Appellee, v. Shawnee Louise SCHINNELL, Defendant-Appellant.

Nos. 94-11155, 95-10213.

United States Court of Appeals Fifth Circuit.

April 9, 1996.

Joe C. Lockhart, Paul E. Coggins, U.S. Attorney's Office, Dallas, TX, for plaintiff-appellee.

Timothy William Crooks, Federal Public Defender's Office, Fort Worth, TX, Ira Raymond Kirkendoll, F. Clinton Broden, Office of the Federal Public Defender, Dallas, TX, for defendant-appellant.

Appeals from the United States District Court for the Northern District of Texas.

Before GARWOOD, EMILIO M. GARZA and DENNIS, Circuit Judges.

GARWOOD, Circuit Judge:

Pursuant to a plea agreement, defendant-appellant Shawnee Louise Schinnell (Schinnell) pleaded guilty to one count of wire fraud in violation of 18 U.S.C. § 1343, while preserving her right to appeal the district court's denial of her motion to dismiss on double jeopardy grounds. We affirm the denial of the motion to dismiss. We vacate Schinnell's sentence on other grounds and remanded for resentencing.

Facts and Proceedings Below

Beginning prior to April 1988 and continuing through at least October 1993, Schinnell was employed in the accounting department of Trammell-Crow, a real estate firm located in Dallas, Texas. Between January 1990 and February 1993, Schinnell used her position at Trammell-Crow to draw funds from Trammell-Crow bank accounts through the use of forged signatures, fraudulent endorsements, and wire transfers. Schinnell then used these funds to purchase for herself real and personal property, as well as to pay expenses associated with S & H Racing, a company that she owned and operated. ¹

In November 1993, Schinnell was interviewed by agents of the Federal Bureau of Investigation (FBI), and conceded her involvement in the offenses. Before any indictment was sought, Schinnell and her attorney subsequently entered into negotiations regarding the possibility of a plea agreement with members of the United States Attorney's office. Among the terms of the proposed plea agreement were that Schinnell would plead guilty to one count of bank fraud and agree not to contest any forfeiture proceedings. However, this proposed agreement was never entered into.

Various items of personal property were subsequently seized by the government, and administrative forfeiture proceedings pursuant to 18 U.S.C. § 981(a)(1)(C) were instituted. Schinnell received notice of the forfeiture proceedings, yet she chose not to file a claim in or otherwise contest the forfeiture based upon the advice of her new attorney that her resources were best conserved for her criminal defense. The property was accordingly administratively forfeited.

A superseding indictment was returned in October 1994 charging Schinnell with bank fraud in violation of 18 U.S.C. § 1344 (Count 1), wire fraud in violation of 18 U.S.C. § 1343 (Count 2), and interstate transportation of money taken by fraud in violation of 18 U.S.C. § 1957 (Count 3). Schinnell moved to dismiss the indictment on double jeopardy grounds based upon the prior administrative forfeiture. Following a hearing, the court issued a one-paragraph order denying the motion on December 19, 1994. ² The following day Schinnell entered a conditional plea of guilty to the wire fraud charge reserving her right to appeal the denial of her motion to dismiss. The remaining counts were dismissed upon motion of the government pursuant to a plea agreement.

The district court sentenced Schinnell to a sixty-month term of imprisonment, a three-year term of supervised release, and ordered her to pay restitution totaling $1,707,656.48 in monthly installments of at least four hundred dollars per month beginning thirty days after her release from confinement. Schinnell now brings this appeal.

Discussion

I. Double Jeopardy

A. Procedure

Schinnell advances two procedural arguments regarding the district court's disposition of her plea of double jeopardy which she contends require remand: first, the district court erred in allocating the burden of proof to the defendant on the double jeopardy issue; and second, the district court failed to make essential findings on the record as required by Fed.R.Crim.P. 12(e). We address these claims seriatim.

The parties are in agreement that the defendant bears the initial burden of establishing a prima facie nonfrivolous claim of double jeopardy, after which the burden shifts to the government to demonstrate by a preponderance of the evidence why double jeopardy principles do not bar prosecution. United States v. Deshaw, 974 F.2d 667, 670 (5th Cir.1992); United States v. Levy, 803 F.2d 1390, 1393-94 (5th Cir.1986); United States v. Stricklin, 591 F.2d 1112, 1117-18 (5th Cir.), cert. denied, 444 U.S. 963, 100 S.Ct. 449, 62 L.Ed.2d 375 (1979). However, the parties disagree as to whether the district court properly allocated this burden in the case at bar.

Having reviewed the transcript of the hearing held below, we are satisfied that the trial court properly understood the showing required of the defendant. During an exchange between the trial court and counsel regarding the proper allocation of the burden on the double jeopardy issue, the trial court remarked:

"On most motions, the movant even in a criminal case has the burden of going forward with sufficient evidence to show the grounds for the motion. And it does not seem to me that Ms. Schinnell satisfies that burden by just showing that the government has seized some property of hers. At most, all that shows to me is that she may have a civil claim against the government ... but it certainly doesn't show she has been placed in jeopardy in the criminal context unless she shows some relationship between the offense charged and the property seized." (Emphasis added).

We believe that this statement reflects that the district court was simply holding Schinnell to the burden of going forward with sufficient evidence to establish a prima facie claim. ³ Schinnell's double jeopardy claim rests upon a "multiple punishment" theory. The relationship between the previous punishment and the punishment the government currently seeks to impose is the essence of this type of double jeopardy claim. Department of Revenue of Montana v. Kurth Ranch, --- U.S. ----, ---- n. 1, 114 S.Ct. 1937, 1941 n. 1, 128 L.Ed.2d 767 (1994) (Double Jeopardy Clause protects against multiple punishments for same offense ).

Nor do we find merit in Schinnell's argument that reversal is required because the trial court failed to make essential findings of fact as required by Fed.R.Crim.P. 12(e). Rule 12(e) provides, inter alia, "[w]here factual issues are involved in determining a motion, the court shall state its essential findings on the record." However, in United States v. Yeagin, 927 F.2d 798, 800 (5th Cir.1991), we held that where the district court indicated neither the factual findings nor the legal basis for the denial of a motion, we were required to conduct an independent review of the record to determine whether the district court's decision was supported by "any reasonable view of the evidence." ⁴ Having done so, we find, for the reason stated below, that no remand is required. The undisputed facts reflect that Schinnell's motion is not well taken.

B. Merits

By now it is well-established that the Double Jeopardy Clause of the Fifth Amendment affords protection against the imposition of multiple punishments for the same offense. ⁵ United States v. Halper, 490 U.S. 435, 439-41, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1992); Kurth Ranch, --- U.S. at ---- n. 1, 114 S.Ct. at 1941 n. 1 (1994). Indeed, the Supreme Court has observed that the prohibition against multiple punishments is one with "deep roots in our history and jurisprudence." Halper, 490 U.S. at 440, 109 S.Ct. at 1897. Furthermore, the imposition of civil sanctions by the government, where not rationally related to a remedial purpose, may constitute "punishment" for purposes of the double jeopardy analysis. Id. at 448-50, 109 S.Ct. at 1902.

Because it is undisputed that the administrative forfeiture at issue in the present case relates to the same offense for which Schinnell was criminally prosecuted, the only question before us today is whether the forfeiture constituted punishment which would operate to bar the subsequent criminal sanctions sought by the government. On the undisputed facts before us, we conclude that the forfeiture was not punishment, and therefore affirm the district court's denial of Schinnell's motion to dismiss on grounds of double jeopardy.

Our analysis is guided primarily by our recent opinion in United States v. Arreola-Ramos, 60 F.3d 188, 192 (5th Cir.1995), in which we held that "a summary forfeiture, by definition, can never serve as a jeopardy component of a double jeopardy motion." See also, United States v. Clark, 67 F.3d 1154, 1163 (5th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1432, 134 L.Ed.2d 554 (1996) (No. 95-7511). Our holding in Arreola-Ramos was based upon our determination that an administrative summary forfeiture in which defendant had filed no claim could neither constitute "punishment" nor former jeopardy so as to trigger the protections of the Double Jeopardy Clause.

In concluding that a summary forfeiture could not constitute punishment, we observed that summary proceedings are only available for forfeitures of property that is "unclaimed" or "unowned." Therefore, we stated that "albeit a legal fiction, the very issuance of a summary forfeiture establishes that no one owned the Funds," and "[c]onsequently, their forfeiture punished no one." Id. at 192. Several of our sister circuits have reached essentially the same conclusion. United States v. Cretacci, 62 F.3d 307, 311 (9th Cir.1995) (administrative forfeiture is forfeiture of "abandoned" property), petition for cert. filed, (U.S. Feb. 13, 1996) (No. 95-7955); United States v. Baird, 63 F.3d 1213, 1218 (3rd...