Ringor v. US

• Decision Date: 26 May 1995
• Docket Number: Civ. No. 95-00245 DAE. Crim. No. 93-00156 DAE 01.
• Citation: 887 F. Supp. 1371
• Parties: Casey RINGOR, Plaintiff-Petitioner v. UNITED STATES of America, Defendant-Respondent.
• Court: U.S. District Court — District of Hawaii

887 F. Supp. 1371

Casey RINGOR, Plaintiff-Petitioner v. UNITED STATES of America, Defendant-Respondent.

Civ. No. 95-00245 DAE. Crim. No. 93-00156 DAE 01.

United States District Court, D. Hawai`i.

May 26, 1995.

Daniel A. Bent by Michael K. Kawahara, Asst. U.S. Atty., for U.S.

Deanna Spencer, Melissa Day, Asst. Fed. Public Defenders, Alexander Silvert, for Casey Ringor.

ORDER DENYING PETITION TO VACATE CONVICTION AND SENTENCE PURSUANT TO 28 U.S.C. § 2255

DAVID ALAN EZRA, District Judge.

The court received Plaintiff's Petition on March 28, 1995. Alexander Silvert, Esq., appeared on the briefs on behalf of Plaintiff; Beverly Wee Samashima, Esq., appeared on the briefs on behalf of Defendant. After reviewing the Petition and the supporting and opposing memoranda, the court DENIES Plaintiff's Petition to Vacate Conviction and Sentence.

BACKGROUND

Law enforcement officials arrested Plaintiff-Petitioner Casey Ringor ("Ringor") on December 27, 1992, at the Honolulu Airport. At that time, the officials searched Ringor's bag and jacket and seized a cashier's check in the amount of $3,900.¹ On January 26, 1993, the government charged Ringor with the knowing and intentional possession of one kilogram of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. On February 2, 1993, Ringor pleaded guilty to this charge, pursuant to a plea agreement. In February 1993, Ringor received a Notice of Administrative Forfeiture, which informed him that the government intended to forfeit the cashier's check. Ringor did not contest this forfeiture, and in April 1993, the money was officially forfeited. Ringor does not now contest that he had notice of the forfeiture.

This court sentenced Ringor on August 11, 1993 to three years of incarceration plus five years of supervised release. This sentence represents a downward departure granted Ringor as a result of his substantial assistance to the government. Since then, Ringor has been imprisoned at FCI Terminal Island; he is scheduled to be released in May 1995, to begin serving five years of supervised release.

Ringor argues that the uncontested administrative forfeiture of his $3,900 cashier's check constitutes punishment under the Double Jeopardy Clause of the Fifth Amendment. The Drug Enforcement Agency completed the forfeiture of the check before Ringor was sentenced. Ringor argues that his sentence of incarceration and conviction constitute multiple punishments for the same offense and must be vacated to avoid violating the Double Jeopardy Clause.

STANDARD OF REVIEW

This court's review of Petitioner's motion is provided for in 28 U.S.C. § 2255:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

Because the scope of collateral attack of a sentence under § 2255 is limited, it does not encompass all claimed errors in conviction and sentencing. United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 2240, 60 L.Ed.2d 805 (1979).

DISCUSSION

I.

In United States v. $405,089.23, 33 F.3d 1210 (9th Cir.1994), a panel of the Ninth Circuit Court of Appeals held that 21 U.S.C. § 881(a)(6), the narcotics proceeds forfeiture statute, serves a punitive and not solely remedial purpose. As a result, the court reasoned, the government violated the Double Jeopardy Clause of the Fifth Amendment by obtaining convictions in a criminal case and then continuing to pursue a civil forfeiture action based upon the same criminal conduct. After $405,089.23, the government must seek forfeiture under 21 U.S.C. § 881(a)(6) in the same proceeding, i.e., the same indictment, as the criminal prosecution, or choose to forego that prosecution. 33 F.3d at 1222.

Because this opinion casts the government's use of civil forfeiture in doubt and inspires Defendant's motion, the court will pause to examine it closely. In $405,089.23, the government brought a criminal prosecution and civil forfeiture proceedings at roughly the same time. In the indictment, the government accused the defendants of conducting a large-scale methamphetamine manufacturing operation and of using a series of front corporations in order to create the appearance that they were engaged in legitimate mining operations. 33 F.3d at 1214. In addition to the $405,089.23, the forfeiture complaint in the judicial forfeiture proceeding listed other bank accounts, cash, silver bars, a helicopter, a shrimp boat, and eleven cars. Id. The government sought forfeiture on two grounds: (1) as proceeds of illegal narcotics transactions under 21 U.S.C. § 881(a)(6), and (2) as property "involved in" money laundering violations under 18 U.S.C. § 981(a)(1)(A). Unlike Ringor here, defendants filed claims to the property, and, pursuant to a stipulation, the district court stayed the proceedings pending the outcome of the parallel criminal case.

Eight months after a jury convicted the defendants, the government sought summary judgment in the forfeiture action. The district court granted the motion, finding that the convictions for methamphetamine manufacturing and money laundering established probable cause under both the government's narcotics proceeds and money laundering theories.

The Ninth Circuit began its discussion with the "most basic element of the Double Jeopardy Clause ... the protection it affords against successive prosecutions...." Id. at 1215. Having discussed this protection, the court concluded that the two proceedings prevented the defendants from "`being able, once and for all, to conclude their confrontation with society' at the time of the jury's verdict." Id. at 1216 (citing United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) (opinion of Harlan, J.)).

Next the court addressed two conditions precedent to the application of the double jeopardy bar: (1) whether defendants faced two proceedings; and (2) whether the civil proceeding resulted in "punishment." Id. In deciding that the civil forfeiture proceeding stood apart from the criminal prosecution as a separate proceeding, the court criticized two other circuit court decisions, one from the Eleventh Circuit and one from the Second Circuit, both holding that in cases like $405,089.23, parallel civil forfeiture proceedings do not constitute separate "proceedings." Id. (citing United States v. One Single Family Residence, 13 F.3d 1493, 1499 (11th Cir.1994); United States v. Millan, 2 F.3d 17, 20 (2d Cir.1993)). The court refused to hold as these courts did that a forfeiture action and criminal prosecution making up a "single, coordinated prosecution" constitute a single proceeding, reasoning that such a holding would encourage abuses of government power. Specifically, the court described the government strategy of delaying civil forfeiture until after the criminal case so that the more lenient probable cause standard would serve to impose punishment if the jury failed to do so applying reasonable doubt. Id. at 1217.

The Supreme Court's recent decision in Department of Revenue of Montana v. Kurth Ranch, ___ U.S. ___, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994) leaves little doubt that an administrative forfeiture proceeding may constitute a separate proceeding for the purpose of double jeopardy. In Kurth Ranch, the Court held that a tax imposed upon the growing of marijuana constituted "punishment" under the Double Jeopardy Clause. ___ U.S. at ___, 114 S.Ct. at 1943. The Kurths had originally contested the tax in administrative proceedings, although in their particular case the tax would have been imposed in bankruptcy proceedings, had the bankruptcy judge not held that the tax violated double jeopardy. Id. Nowhere in the Court's opinion does it suggest that the potentially administrative nature of the imposition of the tax made a difference in the double jeopardy analysis. Under $405,089.23 and Kurth Ranch, this court concludes that the administrative forfeiture proceedings in this case did constitute "separate proceedings."²

Turning to the issue of punishment, the Ninth Circuit in $405,089.23 applied United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), and Austin v. United States, ___ U.S. ___, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), where the Supreme Court exploded the civil/criminal distinction in favor of an inquiry into whether the statute in question serves "solely a remedial and not punitive purpose." Id. at 1219 (citing Austin, ___ U.S. at ___, 113 S.Ct. at 2812; Halper, 490 U.S. at 448, 109 S.Ct. at 1901-02). In applying Halper and Austin, the court noted a pivotal distinction. In Austin, the Court held that civil forfeiture could constitute "punishment" under the Excessive Fines Clause of the Eight Amendment. ___ U.S. at ___, 113 S.Ct. at 2812. In Halper, the Court held that a civil penalty provision imposing a penalty grossly disproportionate to the damages caused constituted a second punishment in violation of the double jeopardy clause. 490 U.S. at 449-50, 109 S.Ct. at 1902-03. The Ninth Circuit reasoned that Austin's application of the Halper test signals that "punishment" under Halper constitutes punishment under both clauses. Id.

This court must note its disagreement with this crucial step in the Ninth Circuit's analysis. Where Halper expressly conducted a proportionality calculation of the fine before finding it constituted a punishment under the Double Jeopardy Clause, and Austin looked to the scope of the statute in order to determine whether the fine constituted punishment then subject to the proportionality calculation of the Excessive Fines Clause, $405,089.23...