U.S. v. Amiel, 1403

• Decision Date: 09 June 1993
• Docket Number: No. 1403,D,1403
• Citation: 995 F.2d 367
• Parties: UNITED STATES of America, Appellee, v. Hilda AMIEL, Kathryn Amiel, Joanne Amiel, and Sarina Amiel, Defendants-Appellants. ocket 93-1040.
• Court: U.S. Court of Appeals — Second Circuit

Page 367

995 F.2d 367

UNITED STATES of America, Appellee, v. Hilda AMIEL, Kathryn Amiel, Joanne Amiel, and Sarina Amiel,

Defendants-Appellants.

No. 1403, Docket 93-1040.

United States Court of Appeals, Second Circuit.

Argued March 31, 1993.

Decided June 9, 1993.

Adrian L. DiLuzio, Woodmere, NY, for defendants-appellants.

Dave S. Hattem, Asst. U.S. Atty. for the E.D.N.Y. (Mary Jo White, U.S. Atty., Peter A. Norling and Gary R. Brown, Asst. U.S. Attys., of counsel), for appellee.

Before: OAKES, PIERCE, and PRATT, Circuit Judges.

GEORGE C. PRATT, Circuit Judge:

FACTS AND BACKGROUND

In 1986, the United States began investigating Leon Amiel; his wife, Hilda Amiel; his daughters, Kathryn and Joanne Amiel; and his granddaughter, Sarina Amiel, for possible dealings in counterfeit artworks. Through their family businesses, the Amiels allegedly engaged in a scheme to sell to corrupt art dealers limited-edition prints of artists such as Pablo Picasso, Joan Miro, Marc Chagall, and Salvador Dali. Leon Amiel allegedly ran the counterfeit-art operation until his death in 1988, after which his wife, daughters, and granddaughter took over.

On July 8, 1991, the United States District Court for the Eastern District of New York, Thomas C. Platt, Chief Judge, issued a warrant in rem for the arrest of several properties, some of which were connected with the Amiels. The amended verified complaint in rem alleged that the defendant properties were utilized in or constituted the proceeds of mail fraud, money laundering, transportation of stolen goods, and RICO violations. Among the properties seized were commercial real estate in Manhattan; three residential properties in Rockville Centre, New York; $328,785.80 from a safe-deposit box at Bankers Trust Company; $919,983.86 from Bankers Trust Company accounts; a Shearson Lehman brokerage account; three automobiles; National Westminster Bank accounts; and several prints worth thousands of dollars.

Hilda, Kathryn, Joanne, and Sarina Amiel filed claims to most of the above-listed properties on July 17, 1991, but they failed to answer the in rem complaint. The district court dismissed their claims on October 11, 1991, and entered a default judgment against the defendant properties on October 30, 1991. The Amiels appealed from that judgment.

On February 28, 1992, a grand jury returned an indictment charging Kathryn, Joanne, and Sarina Amiel with conspiracy and mail fraud in connection with the sale of counterfeit prints. A thirty-count superseding indictment was returned on June 19, 1992, charging Hilda, Kathryn, Joanne, and Sarina Amiel with various counts of mail and wire fraud. It alleged that they sold limited-edition reproductions of well-known contemporary artists' works that were not signed, numbered, or authorized by those artists. All four moved to dismiss the superseding indictment on December 4, 1992, claiming that the criminal proceeding should be barred because the value of the properties seized in the civil action was so overwhelmingly disproportionate to the crimes for which they were charged that the forfeiture constituted punishment for purposes of double jeopardy.

On December 21, 1992, the Amiels withdrew their appeal from the civil forfeiture judgment pending Chief Judge Platt's disposition of the double-jeopardy motion. Their stipulation with the government, which was approved by the court, provided that the withdrawal was to be "without prejudice to a reinstatement of the appeal * * * in writing by 30 days after [the district court] rules on defendants' motion to dismiss indictment in U.S.A. v. Amiel * * *. If not thus reinstated, the appeal shall be deemed withdrawn with prejudice."

Chief Judge Platt denied the motion to dismiss, in effect without prejudice, because he granted leave to renew the motion at the "conclusion of the Government's case or of the entire case at trial" on January 6, 1993. 813 F.Supp. 958. All four defendants appealed that order, but Hilda Amiel has since died. A panel of this court stayed the trial pending our disposition of the appeal.

Because we agree with Chief Judge Platt that it would be premature to decide the double-jeopardy issue at this juncture, we affirm.

DISCUSSION

A. Appellate Jurisdiction.

Since courts of appeals are generally limited to reviewing "final decisions" of the district courts, 28 U.S.C. § 1291, we usually lack the power to review an interlocutory order denying a pretrial motion to dismiss an indictment. See, e.g., United States v. Wallach, 870 F.2d 902 (2d Cir.1989). However, because the double-jeopardy clause protects individuals from second prosecutions, as well as second convictions for the same offense, an immediate appeal lies from a pretrial order denying a motion to dismiss an indictment on double-jeopardy grounds. Abney v. United States, 431 U.S. 651, 656-62, 97 S.Ct. 2034, 2038-41, 52 L.Ed.2d 651 (1977). See also United States v. Ahmed, 980 F.2d 161, 163 (2d Cir.1992) (double-jeopardy claims fall within "collateral order" exception to final-judgment rule). Therefore, this appeal is properly before us.

B. Double Jeopardy.

The double-jeopardy clause provides: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. In addition to providing protection against double prosecutions, the clause also prohibits multiple punishments for the same offense. Grady v. Corbin, 495 U.S. 508, 510, 110 S.Ct. 2084, 2087, 109 L.Ed.2d 548 (1990). The Amiels assert that they have already been "punished" by the civil forfeiture, because the value of the properties seized is overwhelmingly disproportionate to the amount involved in their alleged offenses. They contend that the Supreme Court's decision in United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), and our decision in United States v. 38 Whalers Cove Drive, 954 F.2d 29 (2d Cir.1992) [hereinafter Whalers Cove ], cert. denied sub nom. Levin v. United States, --- U.S. ----, 113 S.Ct. 55, 121 L.Ed.2d 24 (1992), compel a finding that the civil forfeiture constituted "punishment" for double-jeopardy purposes.

In Halper, the Supreme Court held that under certain circumstances a civil penalty may be a punishment for purposes of the double-jeopardy clause. Irwin Halper filed sixty-five false medical-insurance claims, for which he was convicted under the criminal false-claims statute, 18 U.S.C. § 287. The government then brought a civil action against him under the False Claims Act, 31 U.S.C. §§ 3729-3731. Although his false claims resulted in a total overpayment of only $585, the statute authorized the recovery of more than $130,000 in penalties. 490 U.S. at 439, 109 S.Ct. at 1896. The Court held that the double-jeopardy clause protected a defendant who has already been punished in a criminal prosecution from being subjected to an additional civil sanction "to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution." Id., at 448-49, 109 S.Ct. at 1902. However, the Court limited its holding to "the rare case * * * where a fixed-penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages he has caused." Id. at 449, 109 S.Ct. at 1902.

We applied Halper 's rationale to a civil forfeiture in Whalers Cove. 954 F.2d at 37-38. The Whalers Cove defendant twice sold cocaine inside his condominium to an informant for a total of $250. He was convicted in state court of attempted criminal sale of a controlled substance and received a probationary sentence and a small fine. A few weeks later, the government instituted a civil forfeiture proceeding against the condominium in which the defendant had an equity interest of approximately $68,000. Id. at 32. This court noted that "[w]here the seized property is not itself an instrumentality of crime * * * and its total value is overwhelmingly disproportionate to the value of controlled substances involved in the statutory violation, there is a rebuttable presumption that the forfeiture is punitive in nature." Id. at 36 (emphasis in original).

The government would limit Halper and Whalers Cove to civil forfeitures that follow criminal prosecutions; defendants respond that the chronological order of the two proceedings is irrelevant. In his opinion, Chief Judge Platt noted that in all of the cases cited by the parties "the double jeopardy Given the current posture of the two proceedings in question, it is not clear that the defendants have been punished at all. See, e.g., United States v. Koonce, 885 F.2d 720, 722 (10th Cir.1989) (double-jeopardy motion not ripe for review "[u]nless and until defendant receives some punishment * * * that is arguably multiple"), appeal after remand, 945 F.2d 1145 (10th Cir.1991). To perform a double-jeopardy analysis, we would have to determine what were the interests of the defendants in the seized property and whether the value of those interests was "overwhelmingly disproportionate" when compared to the value of the "damages" they have caused. See Halper, 490 U.S. at 449, 109 S.Ct. at 1902. Defendants urge us to compare the total value of the forfeited properties (over $4 million) to the amount of wrongdoing alleged in the indictment (approximately $226,000). In contrast, the government argues that the proper comparison is between the value of the properties for which the defendants filed claims in the forfeiture action (approximately $110,000) and the amount involved in the defendants' criminal conduct (over $5 million). In addition, the government argues that the bulk of the properties seized constitute instrumentalities of the crime and, as such, should not be factored into any double-jeopardy calculations. See Whalers Cove, 954 F.2d at 36 (instrumentalities of crime are not included in proportionality analysis); United States v. Cullen, 979 F.2d 992, 995 (4th Cir.1992) (no...