U.S. v. 9844 South Titan Court, Unit 9, Littleton, Colo., 2001772

Decision Date07 June 1996
Docket NumberNos. 94-1285,94-1290,No. 46015777,No. 2001772,U,2001772,46015777,s. 94-1285
PartiesUNITED STATES of America, Plaintiff-Appellee, v. 9844 SOUTH TITAN COURT, UNIT 9, LITTLETON, COLORADO, with all improvements, appurtenances, fixtures, and attachments thereon, and the rents, profits, and proceeds therefrom; Jewelry Located at 9844 South Titan Court, Unit 9, Littleton, CO, named: All Jewelry, Cash, Cashier's Checks, Money Orders, Traveler's Checks, Stock and Mutual Fund Certificates, Bonds, Financial Instruments, Negotiable Instruments, Cameras, Consumer Electronic Equipment (including but not limited to VCRs, televisions, stereos, CD players, personal computers, lap-top computers) and Cellular Telephones, located at 9844 South Titan Court, Unit 9, Littleton, Colorado; 9844 South Titan Court, Unit 10, Littleton, Colorado, with all improvements, appurtenances, fixtures and attachments thereon, and the rents, profits, and proceeds therefrom; Jewelry Located at 9844 South Titan Court, Unit 10, Littleton, CO, named: All Jewelry, Cash, Cashier's Checks, Money Orders, Traveler's Checks, Stock and Mutual Fund Certificates, Bonds, Financial Instruments, Negotiable Instruments, Cameras, Consumer Electronic Equipment (including but not limited to VCRs, televisions, stereos, CD players, personal computers, lap-top computers) and Cellular Telephones, located at 9844 South Titan Court, Unit 10, Littleton, Colorado; 1277 South Memphis Street, Aurora, Colorado, with all improvements, appurtenances, fixtures, and attachments thereon, and the rents, profits, and proceeds therefrom; Jewelry Located at 1277 South Memphis Street, Aurora, CO, named: All Jewelry, Cash, Cashier's Checks, Money Orders, Traveler's Checks, Stock and Mutual Fund Certificates, Bonds, Financial Instruments, Negotiable Instruments, Cameras, Consumer Electronic Equipment (including but not limited to VCRs, televisions, stereos, CD players, personal computers, lap-top computers) and Cellular Telephones, located at 1277 South Memphis Street, Aurora, Colorado; 4 Winged Foot Way, Aurora, Colorado, with
CourtU.S. Court of Appeals — Tenth Circuit
1996 Rehearing Denied June 7, 1996

Appeal from the United States District Court for the District of Colorado; Sherman G. Finesilver, Judge.

Brenda G. Grantland, Mill Valley, California, appearing for Appellants Philip May and Francis May.

Mark S. Pestal, Assistant United States Attorney (Henry L. Solano, United States Attorney, with him on the briefs), District of Colorado, Denver, Colorado, appearing for Plaintiff-Appellee United States of America.

Before SEYMOUR, Chief Judge, HENRY, Circuit Judge, and COOK *, Senior District Judge.

HENRY, Circuit Judge.

Claimants Philip and Frances May appeal a summary judgment granted to the government in a civil forfeiture proceeding initiated under 21 U.S.C. § 881 and completed after Philip May's conviction and sentencing on related drug charges. Ms. May challenges the district court's conclusion that her "innocent owner" defense did not survive the government's motion for summary judgment. Mr. May contends that forfeiture in a proceeding

                separate from his criminal trial constituted double jeopardy.   There is merit in both arguments.   We reverse in part the judgment of the district court
                
BACKGROUND
I. The Criminal Case

Husband and wife Philip and Frances May owned an interior design business called Door & Trim Systems, Inc., in Littleton, Colorado. On October 29, 1991, equipped with $13,050 in cash and a loaded .45 caliber pistol, Philip May went to a bar with Lisa Tarasiuk, a former employee, to buy a kilo of cocaine. The seller turned out to be an undercover police officer.

After his arrest, Philip May consented to searches of his home and business properties. To obtain his consent, the police told him that he could stop the searches at any time. The police first took him to his home at 1277 South Memphis Street, where he let the police in and retrieved the keys to his business. The police then took him away and continued their search, which produced two guns, roughly 165 grams of cocaine, and $2,800 in cash.

The police then took Mr. May to his business property, Units 9 and 10 of 9844 South Titan Court. These were adjacent units in an industrial condominium; the Mays had removed the wall between the two and used the enlarged space to house tools and machinery. Mr. May again consented in writing to the search. The police again took him away, then searched Units 9 and 10. In Unit 9 they found roughly fifty-five grams of cocaine, a triple beam scale, and a cocaine grinder. They found nothing in Unit 10.

Philip May was indicted on January 28, 1992, and tried for possession of cocaine with intent to distribute, conspiracy to distribute, attempted...

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    ...that a defendant could not be punished by civil forfeiture after being convicted of drug offenses for the same transaction, 75 F.3d 1470, 1491 (10th Cir.1996), but was overruled on the ground that civil forfeiture does not constitute punishment for Double Jeopardy purposes, United States v.......
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    ...or only one, is whether each provision requires proof of a fact which the other does not."); accord United States v. 9844 S. Titan Court , 75 F.3d 1470, 1488 (10th Cir. 1996). In other words, Blockburger ’s so-called "same-elements test ... inquires whether each offense contains an element ......
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