U.S. v. Arreola-Ramos, ARREOLA-RAMO

• Decision Date: 20 July 1995
• Docket Number: No. 94-10967,D,ARREOLA-RAMO,94-10967
• Citation: 60 F.3d 188,1995 WL 428059
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Omarefendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 188

60 F.3d 188

UNITED STATES of America, Plaintiff-Appellee, v. Omar ARREOLA-RAMOS, Defendant-Appellant.

No. 94-10967.

United States Court of Appeals, Fifth Circuit.

July 20, 1995.

Lewis Coppedge (Court-appointed), Conant Whittenburg, Whittenburg & Schachter, P.C., Amarillo, TX, for appellant.

Delonia A. Watson, Asst. U.S. Atty., Fort Worth, TX, Paul Coggins, U.S. Atty., Amarillo, TX, for appellant.

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

Before SMITH, WIENER and DeMOSS, Circuit Judges:

WIENER, Circuit Judge:

Defendant-Appellant Omar Arreola-Ramos (Arreola) faces a criminal drug trial. With this interlocutory appeal, he seeks to bar that trial on double jeopardy grounds. Although a non-party to a civil forfeiture proceeding, Arreola here asserts that the forfeited funds (Funds) were his; that he received no notice of the forfeiture; that the forfeiture of the Funds violates his due process rights; and that forfeiture of the Funds in his absence therefore constitutes former jeopardy. As a result, he argues, his pending indictment--arising as it does out of the same alleged criminal activity--violates double jeopardy. We conclude that, as Arreola never made a claim in the civil forfeiture proceeding and thus never became a party, that forfeiture neither placed him in jeopardy nor punished him. Accordingly, we affirm the district court's denial of Arreola's motion to dismiss and remand to the district court for further proceedings.

I. FACTS AND PROCEEDINGS

Arreola's story begins on Polk Street in Amarillo, Texas, where he lives with his mother, Mary Apodaca. On a June evening in 1994, while investigating suspected drug activity, Amarillo law enforcement officials searched the Apodaca/Arreola residence and seized the Funds, approximately $11,408 in cash. This event precipitated two similar but independent judicial proceedings, one civil and the other criminal. First, Arreola and four others were indicted on federal drug charges. ¹ Second, after the indictment but before the trial, the government initiated in rem civil forfeiture proceedings against the Funds, alleging that they were used in or acquired as a result of a drug-related offense. ²

Civil forfeiture procedure requires the government to (1) publish, once a week for at least three successive weeks in a newspaper of general circulation, notice of its intention to forfeit, and (2) send "[w]ritten notice of seizure together with information on the applicable procedures...to each party who appears A claimant then has 20 days from the first publication in which to file a claim and a cost bond of not less than $250. ⁴ The filing of the claim and the bond stops the administrative process and requires the seizing agency to turn over the matter to the United States Attorney for the commencement of a judicial forfeiture proceeding. ⁵ A claimant's failure to follow these procedures results automatically in a declaration of forfeiture by the seizing agency and the vesting of title to the forfeited property in the United States. ⁶ This declaration has the same effect as a final decree and order of forfeiture entered in a judicial proceeding. ⁷

to have an interest in the seized article." ³

In this case, the notice of the forfeiture appeared for three consecutive weeks in USA Today. Additionally, the government sent the "Notice of Seizure" (Notice) via certified mail addressed to Arreola at his civil residence. His mother received the Notice and signed the return receipt. At the time, however, Arreola was incarcerated: Shortly after the seizure of the Funds, he had been arrested on drug charges stemming from the same drug enforcement activity.

The 20 day period for contesting forfeiture expired without Arreola's having entered an appearance or contested the forfeiture. Indeed, no one timely entered an appearance or contested the forfeiture. Thus, on September 2, 1994, title to the Funds vested in the United States government.

Some six weeks later, Arreola filed a motion to dismiss the indictment against him. In his motion, he argued that, in light of the recent forfeiture, a subsequent trial arising out of the same alleged criminal activity would violate double jeopardy.

At this point in the narrative, we pause to parse Arreola's motion. He filed but one, a motion to dismiss for double jeopardy; however, his argument comprises three parts. In the first he contends that former jeopardy attached in the civil forfeiture proceeding. In the second he argues that, as a result of that former jeopardy, his pending criminal trial, if held, would violate double jeopardy. But there is one catch: Arreola was not a party to the civil forfeiture. Thus, in the third part of his argument, in which he complains of a due process violation, Arreola is attempting retroactively to bootstrap himself into the civil forfeiture proceeding and, more importantly, into its jeopardy effects.

Breaking this third, due process part down further, we perceive that Arreola's argument runs something like this: (1) the government arrested me, put me in jail, and seized my money; (2) knowing I was in jail, the government instituted forfeiture proceedings against my money, but sent notice only to my civil residence; and (3) this constitutes inadequate notice and violates my due process rights, as I was unaware of and unable to contest the forfeiture. Arreola then jumbles all three parts together and, in a transparent bit of legal alchemy, attempts to transmute the "lead" of a civil forfeiture proceeding--in which he was not even a party--into the "gold" of former jeopardy. Essentially, Arreola asked the district court (and now asks us) to overlook his absence from the forfeiture proceeding and to hold--not merely "in spite of" his absence but indeed "because of" his absence--that former jeopardy attached in the forfeiture proceeding. Despite its ingenuity, this is nothing more than a garden variety flawed syllogism.

The district court denied Arreola's motion: As Arreola was not a party to the civil forfeiture, reasoned the court, he was not placed in jeopardy by those proceedings. The district court nevertheless ruled that Arreola's motion

to dismiss was not frivolous, granted Arreola leave to file an interlocutory appeal, and ordered a continuance of his criminal trial setting until we shall have ruled on Arreola's interlocutory appeal.

II. ANALYSIS

A. JURISDICTION

Our authority to hear this appeal lies in Abney v. United States. ⁸ There, the Supreme Court held that appellate courts have jurisdiction to entertain an appeal from a pre-trial order denying dismissal sought on double jeopardy grounds. ⁹ The Court reasoned that, as the Double Jeopardy Clause forbids a second trial, such a denial was within the "collateral order" exception ¹⁰ to the final judgment rule of appellate jurisdiction. ¹¹ The interlocutory appeal that Abney permits is, however, limited to double jeopardy claims and does not include other challenges. ¹²

The scope of the instant interlocutory appeal is thus quite narrow: We have jurisdiction to review only the district court's denial of Arreola's motion to dismiss to the extent it implicates double jeopardy. In an Abney appeal, we cannot review other assertions of error, such as a due process violation in a separate and independent proceeding. Consequently, we cannot consider Arreola's due process claim regarding notice in the civil forfeiture case. Such claims may be brought in district court, either as a civil action collaterally attacking the summary forfeiture judgment ¹³ or in a criminal trial as a Rule 41(e) motion to return seized property. ¹⁴ As neither type of proceeding is before us in this interlocutory appeal of the district court's refusal to dismiss Arreola's criminal prosecution, we simply do not have jurisdiction over those issues. Arreola's claim of denial of due process in the civil forfeiture proceeding is thus beyond the scope of this appeal, and we neither express nor imply an opinion on the merits of such a claim. Accordingly, we review only his double jeopardy claim in the context of his dismissal motion.

B. DOUBLE JEOPARDY

"No person shall...be subject for the same offense to be twice put in jeopardy of life or limb...." ¹⁵ Double jeopardy raises a legal issue of constitutional dimensions; we review de novo the denial of a motion to dismiss on double jeopardy grounds. ¹⁶ The Supreme Court has interpreted the Double Jeopardy Clause to shield citizens from both multiple prosecutions and multiple punishments for the same offense. ¹⁷ Of course, if the pending criminal trial in this case were to result in a conviction, Arreola would be subjected to punishment. And it follows that if the prior civil forfeiture proceeding, which was predicated on the same drug trafficking offenses as charged in the indictment, constituted a "punishment," the Double Jeopardy Clause would bar the pending criminal trial. ¹⁸

1. Was The Forfeiture "Punishment"?

Only when a civil forfeiture constitutes "punishment" can jeopardy attach. ¹⁹ To determine whether a civil forfeiture constitutes punishment for purposes of double jeopardy, we must ascertain whether, "in a particular case, the amount of the proceeds forfeited was so great that it bore no rational relation to the costs incurred by the government and society resulting from the defendant's criminal conduct." ²⁰ Thus, to evaluate whether, "in this particular case" the civil forfeiture was a "punishment" to the person asserting double jeopardy, we must, as a threshold issue, determine whose property the government acquired in the forfeiture of the Funds. For it is axiomatic that there can be no punishment if the property forfeited did not belong to the person claiming jeopardy.

2. Who Was Punished?

In any appeal, our factual consideration is limited to the district court record and any relevant final judgments. When we examine the record presently before us, we...