U.S. v. Gonzalez, 94-60342

• Decision Date: 22 February 1996
• Docket Number: No. 94-60342,94-60342
• Citation: 76 F.3d 1339
• Parties: 43 Fed. R. Evid. Serv. 1134 UNITED STATES of America, Plaintiff-Appellee, v. Joel GONZALEZ and Jose Francisco Gomez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1339

76 F.3d 1339

43 Fed. R. Evid. Serv. 1134

UNITED STATES of America, Plaintiff-Appellee, v. Joel GONZALEZ and Jose Francisco Gomez, Defendants-Appellants.

No. 94-60342.

United States Court of Appeals Fifth Circuit.

Feb. 22, 1996.

Emilio Davila, Jr., Marcia G. Shein, Davila & Davila, Laredo, TX, for Gonzalez.

Jose Francisco Gomez, Three Rivers, TX, pro se.

James L. Powers, Paula C. Offenhauser, Asst. U.S. Attys., Houston, TX, for Appellee.

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

Before KING, DeMOSS and STEWART, Circuit Judges.

STEWART, Circuit Judge:

The opinion filed in this case on January 26, 1996, 74 F.3d 620, is withdrawn and the following opinion is substituted:

THE CASE

On July 7, 1993, a grand jury returned a superseding indictment charging Joel Gonzalez ("Gonzalez") and Jose Francisco Gomez ("Gomez"), along with ten co-defendants, with multiple counts of federal drug crimes. The superseding indictment charged Gonzalez in counts one through six with conspiracy to possess with the intent to distribute marijuana, two counts of possession with the intent to distribute more than 1,000 kilograms of marijuana, and three money-laundering counts, in violation of 21 U.S.C. §§ 846 and 841(a)(1) and 18 U.S.C. § 1956(a)(1)(A)(i), respectively. The superseding indictment charged Gomez in those same counts except for counts two and six.

On September 9, 1993, the district court ordered a severance and tried Gonzalez, Gomez, and a third man apart from the other defendants. The trial was held in January 1994. The jury found Gonzalez guilty of counts one, two, three, and six and Gomez of counts one and three.

On May 2, 1994, the district court sentenced Gonzalez to four concurrent 235-month terms of incarceration, three concurrent five-year terms of supervised release, one concurrent three-year term of supervised release, a $200 special assessment, and a $10,000 fine. Prior to the sentencing hearing, Gonzalez filed an objection to the Presentence Investigation Report ("PSR") complaining that the imposition of the criminal sentence violated the double jeopardy and excessive fine clauses of the Constitution.

The court sentenced Gomez on June 16, 1994, to 168 months of imprisonment followed by a supervised release term of five years and charged a $5,000 fine.

After the district court entered judgments, both Gonzalez and Gomez timely appealed.

DISCUSSION

Standard of Review

We review the district court's denial of a motion to dismiss an indictment on double jeopardy grounds de novo and accept the underlying factual findings of the district court unless clearly erroneous. United States v. Botello, 991 F.2d 189, 192 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 886, 127 L.Ed.2d 80 (1994); United States v. Deshaw, 974 F.2d 667, 669 (5th Cir.1992).

Gonzalez

Gonzalez contends that the district court erred in overruling his objection to the presentence investigation report, which asserted a double jeopardy violation due to a prior civil forfeiture proceeding. He says that because the government sought civil forfeiture in a separate indictment, the Double Jeopardy Clause of the Constitution barred subsequent punishment in the criminal prosecution. He thus contends that he is being punished twice for the same conduct. ¹

At the time of Gonzalez's arrest, the government seized approximately $70,000 worth of vehicles and personal property. Civil forfeiture ensued and, by agreement dated October 14, 1992, the government forfeited $34,344 worth of that property, consisting of three vehicles, cash, furs, and a cost bond. The government released the balance--jewelry and a boat. Testimony at sentencing established that towing and storage fees for the vehicles cost the government about $800.

Double Jeopardy

It is well established that the appellant must make a threshold showing of "punishment" before a court undertakes a double jeopardy analysis. United States v. Morgan, 51 F.3d 1105, 1115 (2nd Cir.1995). Here Gonzalez has the burden of designating and creating the record on appeal to provide all relevant evidence to support his argument. Fed.R.App.P. 10(b)(2), 11(a); United States v. Coveney, 995 F.2d 578, 587 (5th Cir.1993). If he fails to provide the necessary record for review, we need not consider the issue on appeal. See Powell v. Estelle, 959 F.2d 22, 26 (5th Cir.), cert. denied, 506 U.S. 1025, 113

S.Ct. 668, 121 L.Ed.2d 592 (1992) (stating that because the appellants failed to provide transcript of hearing upon which an appellate issue was based, the court would not consider it).

Did Jeopardy Attach?

In Gonzalez's case, the civil forfeiture proceeding was settled by a consent judgment. We first must consider whether the consent judgment in the forfeiture proceeding was an adjudication for double jeopardy purposes. The Sixth Circuit has held that jeopardy attaches when a judgment of forfeiture is entered pursuant to a settlement. United States v. Ursery, 59 F.3d 568, 571 (6th Cir.1995). The Sixth Circuit held that Ursery's consent judgment in his civil forfeiture action was "analogous to a guilty plea entered pursuant to a plea agreement in a criminal case." Id. at 571 (citing, inter alia, United States v. Kim, 884 F.2d 189, 191 (5th Cir.1989); Fransaw v. Lynaugh, 810 F.2d 518, 523 & n. 9 (5th Cir.), cert. denied, 483 U.S. 1008, 107 S.Ct. 3237, 97 L.Ed.2d 742 (1987)). "[T]he fact that there has been no trial in a civil forfeiture proceeding does not preclude the attachment of jeopardy to a forfeiture judgment," because "[j]eopardy attaches in a nontrial forfeiture proceeding when the court accepts the stipulation of forfeiture and enters the judgment of forfeiture." Id. at 572. The defendant must be a party to the forfeiture proceeding for jeopardy to attach. Otherwise he was never at risk of having a forfeiture judgment entered against him. United States v. Torres, 28 F.3d 1463, 1465 (7th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 669, 130 L.Ed.2d 603 (1994). There is no such problem here. Gonzalez was indisputably a party to the proceeding. The weight of the authority prompts us to treat Gonzalez's settlement just as we would a guilty plea. Consequently, jeopardy attached upon acceptance of the settlement agreement.

Analysis

"No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb ..." U.S. Const. amend. V. The Constitution contemplates three types of double jeopardy: "a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense." United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989). The Supreme Court in Halper took up the question of "whether and under what circumstances a civil penalty may constitute punishment for the purpose of the Double Jeopardy Clause." Id. at 446, 109 S.Ct. at 1901. The Court resolved that a civil sanction is punishment if it serves the twin aims of retribution and deterrence and not the remedial goal of compensating the government. Id. at 448-49, 109 S.Ct. at 1901-02.

In Halper, the Supreme Court established an analytical methodology for determining whether a civil forfeiture is punishment. 490 U.S. at 449, 109 S.Ct. at 1902. If the purpose of a civil sanction is to make the government whole by reimbursing it for the costs incurred as a result of the unlawful conduct, then the civil forfeiture is remedial, and, by definition, nonpunitive. Id. A civil sanction therefore constitutes punishment only if the amount of the sanction is overwhelmingly disproportionate to the costs borne by the government and society as a result of the wrongful conduct. Id.

Although Halper created a proportionality review, subsequent cases have concluded that whether a civil forfeiture of property is punishment depends upon the nature of the property forfeited. A civil forfeiture brought under § 881(a)(4) (conveyances, such as means of transporting drugs) or § 881(a)(7) (drug-related real estate) always constitutes punishment because the large and unpredictable variances in the value of conveyances and real estate can have no correlation to the costs incurred by the government and society as a result of the illegal drug trafficking for which the property is forfeited. United States v. Tilley, 18 F.3d 295, 299-300 (5th Cir.) (citing Austin v. United States, 509 U.S. 602, ----, 113 S.Ct. 2801, 2803, 125 L.Ed.2d 488 (1993)), cert. denied, --- U.S. ----, 115 S.Ct. 574, 130 L.Ed.2d 490 (1994).

On the other hand, a civil forfeiture of drug proceeds brought under § 881(a)(6) is never punishment. Tilley, 18 F.3d at 300; see United States v. Fields, 72 F.3d 1200, 1209 (5th Cir.1996) (recognizing that we held in Tilley "that the forfeiture of proceeds from illegal drug sales pursuant to 21 U.S.C. § 881(a)(6) does not constitute punishment."). In Tilley, we began our analysis by conducting a Halper case-by-case proportionality comparison of the value of the property forfeited to the governmental and societal damages caused by the unlawful conduct. Tilley, 18 F.3d at 299. However, we concluded that the forfeiture of drug proceeds under § 881(a)(6) will always be proportional to the governmental and societal costs: "[T]he forfeiture of drug proceeds will always be directly proportional to the amount of drugs sold. The more drugs sold, the more proceeds that will be forfeited. As we have held, these proceeds are roughly proportional to the harm inflicted upon government and society by the drug sale." Id. at 300; see also United States v. Perez, 70 F.3d 345, 349 (5th Cir.1995).

For Tilley to apply, it must be established that the forfeiture in this case concerned drug proceeds, as defined in § 881(a)(6). ² Whether the $34,344 in forfeited property was the fruit of illicit gains through drug trafficking is a question we cannot resolve on the basis of the current record. We need to...