Desimone v. State

• Decision Date: 23 February 2000
• Docket Number: No. 24971.,24971.
• Citation: 996 P.2d 405,116 Nev. 195
• Parties: Corky DESIMONE, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

996 P.2d 405

116 Nev. 195

Corky DESIMONE, Appellant, v. The STATE of Nevada, Respondent.

No. 24971.

Supreme Court of Nevada.

February 23, 2000.

Michael R. Specchio, Public Defender, and John Reese Petty, Deputy Public Defender, Washoe County, for Appellant.

Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Respondent.

Before ROSE, C.J., YOUNG, MAUPIN and SHEARING, JJ.¹

OPINION

PER CURIAM.

In Desimone v. State, 111 Nev. 1221, 904 P.2d 1 (1995) (Desimone I),

this court held that appellant Corky Desimone's criminal conviction of one count of possession of a trafficking quantity of a controlled substance constituted successive punishment in violation of the Double Jeopardy Clause of the United States Constitution. See U.S. Const. amend. V. The United States Supreme Court thereafter vacated our decision and remanded the matter to this court with instructions to reconsider in light of United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996). See Nevada v. Desimone, 518 U.S. 1030, 116 S.Ct. 2576, 135 L.Ed.2d 1091 (1996).

Having reconsidered our prior decision in light of Ursery, as well as the Supreme Court's subsequent holding in Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997), we again conclude that Desimone's criminal conviction violates the Double Jeopardy Clause of the United States Constitution and must be vacated.

FACTS

Desimone was arrested and charged with possession and sale of methamphetamine after he provided three ounces of the substance to undercover police officers in exchange for what he believed to be stolen property. Following his arrest, the Nevada Department of Taxation initiated proceedings to collect $166,000 in unpaid taxes and penalties pursuant to NRS chapter 372A, Nevada's Tax on Controlled Substances Act (CSA). On May 20, 1993, the district court entered a civil judgment in the tax proceeding in favor of the Department and against Desimone in the amount of $166,000. Desimone I, 111 Nev. at 1223-24, 904 P.2d at 2-3.

Thereafter, on September 22, 1993, the district court convicted Desimone in the separate criminal proceeding of one count of possession of a trafficking quantity of a controlled substance. The district court sentenced him to serve a term of fifteen years in the Nevada State Prison and to pay a fine of $100,000. Id. On appeal, a majority of this court concluded that the taxes and penalties assessed under the CSA constituted "punishment for double jeopardy purposes." Desimone I, 111 Nev. at 1228, 904 P.2d at 6. Because the tax against Desimone had been reduced to judgment before the judgment of conviction was entered, this court held that his subsequent criminal conviction constituted impermissible successive punishment under the Double Jeopardy Clause. Desimone I, 111 Nev. at 1230, 904 P.2d at 6-7.

As noted, the United States Supreme Court subsequently vacated this court's decision and remanded the matter for reconsideration in light of United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996). See Nevada v. Desimone, 518 U.S. 1030, 116 S.Ct. 2576, 135 L.Ed.2d 1091 (1996).

DISCUSSION

Relevant Supreme Court decisions.

This court's decision in Desimone I primarily adhered to the analytical approach delineated by the United States Supreme Court in Department of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994). Kurth Ranch addressed whether a Montana tax assessed on marijuana was invalid as successive punishment under the Double Jeopardy Clause where the taxpayers had already been criminally convicted of owning the marijuana that was taxed. The Court held that the Montana tax proceeding "was the functional equivalent of a successive criminal prosecution that placed the [taxpayers] in jeopardy a second time `for the same offense.'" Kurth Ranch, 511 U.S. at 784, 114 S.Ct. 1937.

After this court decided Desimone I, the Supreme Court issued two decisions significantly clarifying the proper analysis for determining whether a civil forfeiture or penalty constitutes punishment for double jeopardy purposes. See United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996)

(addressing civil in rem forfeiture proceedings); Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (addressing administrative proceedings involving imposition of monetary penalties and occupational debarment).

In Hudson, the Court largely disavowed the double jeopardy analysis previously announced in United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989).² Instead, Hudson articulated a two-part test, previously outlined in Ursery, for determining whether a particular punishment is criminal or civil. This court has since adopted and applied the Ursery and Hudson analysis in examining double jeopardy concerns in cases involving civil forfeitures and administrative penalties. See Levingston v. Washoe County, 114 Nev. 306, 956 P.2d 84 (1998)

(applying Ursery analysis in forfeiture context); State v. Lomas, 114 Nev. 313, 955 P.2d 678 (1998) (applying Hudson analysis in civil driver's license revocation proceedings).

As Hudson instructs, in assessing the double jeopardy implications of a civil sanction, we look first to whether the legislature intended the provision in question to be civil or criminal in nature. Hudson, 522 U.S. at 99, 118 S.Ct. 488 (first question is whether the legislature "`indicated either expressly or impliedly a preference for one label or the other'") (quoting United States v. Ward, 448 U.S. 242, 248, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980)). Second, even in those cases where the legislature has indicated an intention to establish a civil mechanism, this court must inquire further into whether the statutory scheme is so punitive either in purpose or effect, "as to `transfor[m] what was clearly intended as a civil remedy into a criminal penalty.'" Hudson, 522 U.S. at 99, 118 S.Ct. 488 (quoting Rex Trailer Co. v. United States, 350 U.S. 148, 154, 76 S.Ct. 219, 100 L.Ed. 149 (1956)); see also Ursery, 518 U.S. at 288,

116 S.Ct. 2135 (court must first look to whether Congress intended the provision to be civil or criminal and then to whether the proceedings are so punitive in fact as to persuade the court that they may not legitimately be viewed as civil in nature despite Congress' intent) (citing United States v. One Assortment of 89 Firearms, 465 U.S. 354, 366, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984)).

Hudson explains:

In making this latter determination, the factors listed in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), provide useful guideposts, including: (1) "[w]hether the sanction involves an affirmative disability or restraint"; (2) "whether it has historically been regarded as a punishment"; (3) "whether it comes into play only on a finding of scienter"; (4) "whether its operation will promote the traditional aims of punishment-retribution and deterrence"; (5) "whether the behavior to which it applies is already a crime"; (6) "whether an alternative purpose to which it may rationally be connected is assignable for it"; and (7) "whether it appears excessive in relation to the alternative purpose assigned."

Id. at 99-100, 118 S.Ct. 488. Hudson emphasizes that these "Kennedy" factors must be considered "in relation to the statute on its face," and "only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty." Id. (internal quotation marks and citations omitted).

Neither Ursery nor Hudson specifically call into question the holding or double jeopardy analysis applied in Kurth Ranch in the tax context. See, e.g., Commissioner of Revenue v. Mullins, 428 Mass. 406, 702 N.E.2d 1, 4 (1998) ("nothing in the Court's Hudson decision indicates that the mode of examination employed in Kurth Ranch is no longer appropriate in the tax context"). In fact, both opinions appear to acknowledge that the Kurth Ranch analysis encompasses at least to some extent the two-part test of Hudson and Ursery. Id. Nonetheless, Ursery and Hudson both highlight the key, determinative factors that persuaded the Court in Kurth Ranch to conclude that the Montana tax at issue implicated double jeopardy concerns.

For example, in summarizing the Kurth Ranch analysis, the Ursery Court explained:

We first established that the fact that Montana had labeled the civil sanction a "tax" did not end our analysis. We then turned to consider whether the tax was so punitive as to constitute a punishment subject to the Double Jeopardy Clause. Several differences between the marijuana tax imposed by Montana and the typical revenue-raising tax were readily apparent. The Montana tax was unique in that it was conditioned on the commission of a crime and was imposed only after the taxpayer had been arrested: Thus, only a person charged with a criminal offense was subject to the tax. We also noted that the taxpayer did not own or possess the taxed marijuana at the time that the tax was imposed. From these differences, we determined that the tax was motivated by a "penal and prohibitory intent rather than the gathering of revenue." Concluding that the Montana tax proceeding "was the functional equivalent of a successive criminal prosecution," we affirmed the Court of Appeals' judgment barring the tax.

Ursery, 518 U.S. at 282, 116 S.Ct. 2135 (quoting Kurth Ranch, 511 U.S. at 781, 784, 114 S.Ct. 1937) (internal citations omitted). Ursery further explained:

[Kurth Ranch] expressly disclaimed reliance upon Halper, finding that its case-specific approach was impossible to apply outside the context of a fixed civil-penalty provision. Reviewing the Montana marijuana tax, we held that because "tax statutes serve a purpose quite different from

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