U.S. v. James, 95-3135

• Decision Date: 08 December 1995
• Docket Number: No. 95-3135,95-3135
• Citation: U.S. v. James, 78 F.3d 851 (3rd Cir. 1995)
• Parties: UNITED STATES of America, Appellee, v. Keith JAMES, Appellant. . Submitted Under Third Circuit LAR 34.1(a)
• Court: U.S. Court of Appeals — Third Circuit

Page 851

78 F.3d 851

UNITED STATES of America, Appellee, v.Keith JAMES, Appellant.

No. 95-3135.

United States Court of Appeals Third Circuit.

Submitted Under Third Circuit LAR 34.1(a)

Dec. 8, 1995.

Decided March 4, 1996.

Appeal from the United States District Court for the Western District of Pennsylvania, D.C. No. 94-224.

Bonnie R. Schlueter, Office of United States Attorney, Pittsburgh, PA, for Appellee.

Thomas Livingston, Pittsburgh, PA, for Appellant.

Before: STAPLETON, SAROKIN, and ROSENN, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

This appeal primarily presents for consideration questions concerning whether a civil forfeiture of an automobile used in the sale of illegal drugs constitutes punishment under the Double Jeopardy Clause of the Constitution, and whether the Government must prove for purposes of sentence enhancement that cocaine base constitutes crack cocaine.AppellantKeith James pleaded guilty to possession and distribution of cocaine base in violation of 21 U.S.C. §§ 841(a)(1)and841(b)(1)(B)(iii).The United States District Court for the Western District of Pennsylvania sentenced James to 108 months imprisonment pursuant to Sentencing Guidelines Manual§ 2D1.1.This section provides for an enhanced sentence for the sale of "crack" cocaine.Prior to sentencing, the Government seized James's 1986 Buick LeSabre, pursuant to the forfeiture provisions contained in 21 U.S.C. § 881(a)(4).

James appeals his sentence on several grounds, ¹ two of which merit discussion: (1) whether the judgment of sentence for sale of cocaine base subsequent to the administrative forfeiture of James's automobile is a second punishment for the same offense in violation of the Double Jeopardy Clause of the Fifth Amendment; and (2) whether the Government must prove at sentencing that the substance James sold was "crack," a particular form of cocaine base subject to severe enhancement under the Sentencing Guidelines.²

We see no merit to James's double jeopardy argument.Because we believe, however, that the Government did not prove at sentencing that James sold crack cocaine, James's sentence will be vacated and the case remanded to the district court for re-sentencing consistent with this opinion.

I.

On June 29, 1994, July 1, 1994 and July 11, 1994 James sold cocaine base, allegedly aggregating 57.4 grams, to a confidential informant.Undercover agents of a Drug Enforcement Administration Task Force monitored the transactions.The agents arrested James on September 19, 1994, and seized his 1986 Buick, which he used in all three transactions.One month later, the Drug Enforcement Agency(DEA) notified James of the forfeiture proceedings for his automobile, and alerted him as to the procedures to contest the forfeiture.James did not contest the forfeiture, and thus, prior to sentencing, forfeited his interest in the Buick to the United States.

James pleaded guilty to selling 57.4 grams of cocaine base.At sentencing, the court rejected James's arguments referred to above.The court sentenced James to 108 months imprisonment, the minimum sentence available under the Sentencing Guidelines for the possession and distribution of crack cocaine.

II.

We will first review James's claim that the administrative forfeiture of his automobile constitutes punishment for the same offense for which he was sentenced criminally in violation of the Double Jeopardy Clause of the Fifth Amendment.Review of the district court's ruling is plenary.SeeFabulous Assoc. v. Pa. Pub. Util. Comm'n, 896 F.2d 780, 783(3rd Cir.1990)(court must exercise independent appellate review in constitutional matters).

James drove the Buick LeSabre that he co-owned with his mother to the drug transactions.Subsequent to James's arrest, the Government seized the car pursuant to 21 U.S.C. § 881(a)(4), which provides, in pertinent part:

(a) Property subject

The following shall be subject to forfeiture to the United States and no property right shall exist in them:

(4) All conveyances used ... to transport, or ... facilitate the ... sale [of cocaine].

21 U.S.C. § 881(a)(4).

The Government then notified James in writing of the forfeiture proceedings and the legal methods to contest the proceedings.James asserts that he did not contest the forfeiture proceedings because to do so would have been an "exercise in futility."

Prior to his sentencing hearing, James filed a Motion to Bar Imposition of Sentence in the district court.He asserted that the forfeiture of the Buick was punishment, thus a subsequent judgment of sentence would constitute a second punishment for the same offense, in violation of the Double Jeopardy Clause of the Fifth Amendment.

The Double Jeopardy Clause provides:

[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.

U.S. Const. amdt. 5.

The Supreme Court has noted that the Clause "protects against three distinct abuses: 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."SeeUnited States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487(1989).James asserts that his subsequent sentencing violates the prohibition against multiple punishments.

This court recently held that prosecution subsequent to an administrative forfeiture does not subject a defendant to double jeopardy, because an administrative forfeiture does not constitute former jeopardy.SeeUnited States v. Baird, 63 F.3d 1213(3rd Cir.1995).In Baird, law enforcement officials searched the defendant's residence on the suspicion that he was manufacturing and selling a drug called "Ecstacy."The officials seized drugs and manufacturing equipment, along with $2,582 cash.The DEA invoked administrative forfeiture of the seized cash under 21 U.S.C. § 881(a)(6).The defendant claimed that the administrative forfeiture of the cash barred subsequent criminal proceedings.

The defendant in Baird noted that recent Supreme Court decisions have expanded the concept of punishment under the Double Jeopardy Clause.SeeMontana Dept. of Rev. v. Kurth Ranch, --- U.S. ----, ----, 114 S.Ct. 1937, 1948, 128 L.Ed.2d 767(1994)(state tax imposed on possession and storage of dangerous drugs constituted second punishment for purposes of Double Jeopardy Clause);Austin v. United States, 509 U.S. 602, ----, 113 S.Ct. 2801, 2806, 125 L.Ed.2d 488(1993)(relying on Halper to determine that civil forfeiture pursuant to 21 U.S.C. § 881(a)(4) and (7) constitutes punishment for the purposes of the Eighth Amendment's Excessive Fines Clause);Halper, 490 U.S. at 449, 109 S.Ct. at 1902(civil sanctions may constitute punishment for double jeopardy purposes to the extent they serve traditional goals of punishment--deterrence and retribution).

In Baird, the defendant asserted that these Supreme Courtcases establish that the administrative forfeiture of money constitutes punishment for double jeopardy purposes.SeeBaird, 63 F.3d at 1216.Although the Supreme Court did hold that, under certain circumstances, civil sanctions may constitute double jeopardy, this court found that the forfeiture proceedings in Baird did not constitute double jeopardy.The court noted the distinction between civil and administrative forfeiture proceedings.It asserted:

[A]dministrative forfeiture is only appropriate in cases where the seized property in question goes unclaimed.Without overstating it, administrative forfeiture is, in reality, a non-proceeding--it is merely the consequence of no one having come forward to claim the property seized or contest its forfeitability.

Id. at 1217.

The court went on to explain that the defendant's administrative forfeiture of unclaimed alleged drug proceeds could not be held to constitute punishment for double jeopardy purposes.If this were the only holding in Baird, the instant case would appear to be distinguishable.In this case, it is undisputed that James and his mother owned the automobile that was forfeited.This tends to support James's argument that the forfeiture was "punishment."SeeBaird, 63 F.3d at 1220(Sarokin, J., dissenting)(in rem forfeiture serves, at least in part, to punish the owner).The court in Baird assumed arguendo, however, that the defendant was the owner of the forfeited money and nonetheless concluded that the significant factor was the failure of anyone to contest the forfeiture proceedings.

The court held that because the defendant in Baird failed to contest the forfeiture, he never became a party to the administrative proceeding.Thus, the defendant could not prevail on the double jeopardy claim.Id. at 1219.The court also noted that "no one may be 'punished' in a manner relevant to the Double Jeopardy Clause without first having been subjected to some form of judicial procedure, either in the form of a criminal prosecution or the 'functional equivalent' thereof."Baird, 63 F.3d at 1219 n. 11(emphasis in original)(citingEx Parte Lange, 85 U.S. (18 Wall.) 163, 176, 21 L.Ed. 872(1874)).In this case, James also failed to become a party to the forfeiture proceeding, and it was merely administrative and not judicial.See alsoUnited States v. Torres, 28 F.3d 1463, 1464-65(7th Cir.1994)(when defendant is not a party to forfeiture proceedings, jeopardy does not attach, and further prosecution will not constitute double jeopardy);United States v. Kemmish, 869 F.Supp. 803, 805(S.D.Cal.1994)("Even where the unclaimed property is titled in the name of some person, personal rights protected by the Double Jeopardy Clause are not affected by the forfeiture of the property through administrative proceedings.").

This court's decision in Baird controls the instant case.James did not contest the forfeiture of his automobile.Thus, no former jeopardy attached, and James may not prevail on his double jeopardy claim.We therefore hold that...