U.S. v. Cullen
| Decision Date | 19 November 1992 |
| Docket Number | No. 92-1150,92-1150 |
| Citation | 979 F.2d 992 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Robert H. CULLEN; Luzon Cullen; Commander Drug; Cullen Clinic Building, including any and all appurtenances thereto and all proceeds from the sale thereof, Defendants-Appellants, and Mercury Drug, Defendant. Fourth Circuit |
| Court | U.S. Court of Appeals — Fourth Circuit |
Anthony Elmer Collins, Wise, Va., for appellants.
Julie Marie Campbell, Asst. U.S. Atty., Abingdon, Va. (E. Montgomery Tucker, U.S. Atty., Abingdon, Va., on brief), for appellee.
Before WIDENER, WILKINSON, and WILKINS, Circuit Judges.
Robert Cullen was convicted of knowingly distributing controlled substances outside the scope of legitimate medical practice. In a separate in rem proceeding, the government sought the forfeiture of a building jointly owned by Dr. Cullen and his wife, Luzon, alleging that the building had been used to facilitate Dr. Cullen's offense. The Cullens' major contention is that the Double Jeopardy Clause of the Fifth Amendment, as interpreted by the Supreme Court in United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), bars the forfeiture of the building. The district court rejected that claim and we now affirm its judgment.
A federal grand jury indicted Robert and Luzon Cullen on twenty counts of distributing controlled substances through fraudulent prescriptions, 21 U.S.C. § 841(a)(1), and one count of conspiring to defraud the Department of Labor's Black Lung Program through a false billing scheme, 18 U.S.C. §§ 371, 287. Shortly after the indictment was issued, the United States filed a complaint for forfeiture in rem of a building in Wise, Virginia jointly owned by the Cullens. 21 U.S.C. § 881(a)(7). The building housed Dr. Cullen's clinic and a pharmacy operated by the Cullens, Commander Drug. The government alleged that the building had been used to facilitate the controlled substance violations charged in the indictment.
In July, 1989, Luzon Cullen pled nolo contendere to one charge of conspiring to defraud the Black Lung Program. Robert Cullen pled nolo contendere to one count of knowingly distributing controlled substances outside the scope of legitimate medical practice. The remaining charges against the Cullens were dismissed.
In August, 1990, the government moved for summary judgment in the forfeiture proceeding. The Cullens answered, alleging that there were genuine issues of material fact as to whether the property had been used to facilitate the illegal distribution of controlled substances and whether they were innocent owners of the subject property. See 21 U.S.C. § 881(a)(7). In addition, the Cullens moved to dismiss the complaint on double jeopardy grounds.
The district court rejected the Cullens' double jeopardy claim. After a two day trial in December, 1991, the district court found that Luzon Cullen had illegally distributed controlled substances in the building to Dr. Cullen's patient, Kathy Wright. In addition, the district court found that Dr. Cullen had been willfully blind to Wright's abuse of controlled substances that Dr. Cullen had prescribed for her and other members of the Wright family. These prescriptions were written at the clinic. The district court thus concluded that there was a substantial connection between the premises and the criminal activity. The district court further concluded that the Cullens had not met their burden of establishing innocent ownership by a preponderance of the evidence and granted the forfeiture sought by the government.
The Cullens now appeal.
The Cullens claim that the forfeiture of the building violates the Fifth Amendment's Double Jeopardy Clause because Dr. Cullen has been punished once already for the same conduct that gave rise to the forfeiture. They claim that the value of the building (as much as $300,000 in their view) greatly exceeds any costs incurred by the government in investigating and prosecuting their case, and that the forfeiture thus constitutes punishment. They ask this court to remand to the district court for a particularized accounting of the government's damages and costs, limiting the government's recovery to that amount. We do not believe, however, that the Double Jeopardy Clause imposes any such limitation upon the government's recovery in this forfeiture proceeding.
Any sanction imposed by the government may have a retributive aspect. This need not mean, however, that the sanction constitutes punishment for purposes of double jeopardy if the law also serves significant remedial aims. This court has held, in rejecting an Eighth Amendment challenge to a forfeiture proceeding under 21 U.S.C. § 881(a)(7), that these forfeitures do serve broad remedial purposes. United States v. Santoro, 866 F.2d 1538, 1543-44 (4th Cir.1989). Forfeiture reduces incentives to engage in the drug trade, removes the instrumentalities of that trade, and helps to finance the government's law enforcement efforts. Id. (citations omitted).
The principle of Santoro applies in this case as well. Forfeiture of the Cullen Clinic and Commander Drug Building plainly served a remedial purpose, by removing the instrument through which the Cullens had plied their unlawful trade. Congress enacted the drug forfeiture laws to deprive offenders like the Cullens of the instruments through which they might commit further crimes. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 686-87, 94 S.Ct. 2080, 2093-94, 40 L.Ed.2d 452 (1974). The removal of an instrument of the offense is not primarily an act of punishment; rather, forfeiture protects the community from the threat of continued drug dealing. Cf. United States v. Salerno, 481 U.S. 739, 747, 107 S.Ct. 2095, 2101, 95 L.Ed.2d 697 (1987) (...
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