U.S. v. A Parcel of Land with A Bldg. Located Thereon at 40 Moon Hill Road, Northbridge, Mass.

• Decision Date: 02 August 1989
• Docket Number: No. 89-1191,89-1191
• Parties: UNITED STATES of America, Plaintiff, Appellee, v. A PARCEL OF LAND WITH A BUILDING LOCATED THEREON AT 40 MOON HILL ROAD, NORTHBRIDGE, MASSACHUSETTS, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 41

884 F.2d 41

UNITED STATES of America, Plaintiff, Appellee, v. A PARCEL OF LAND WITH A BUILDING LOCATED THEREON AT 40 MOON HILL ROAD, NORTHBRIDGE, MASSACHUSETTS, Defendant, Appellant.

No. 89-1191.

United States Court of Appeals First Circuit.

Heard Aug. 2, 1989.

Decided Sept. 1, 1989.

Alan R. Finer, for defendant, appellant.

Jeffrey S. Robbins, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., was on brief for the U.S.

Before CAMPBELL, Chief Judge, and BOWNES, Circuit Judge, and GARRITY, ^* Senior District Judge.

LEVIN H. CAMPBELL, Chief Judge.

This is an appeal from a judgment of forfeiture in an action brought in the District Court of Massachusetts by the United States under 21 U.S.C. Sec. 881(a)(7). The United States had moved for summary judgment on the ground that, by reason of a criminal conviction in state court for criminal possession and intent to manufacture or distribute marijuana, the appellants ¹ were collaterally estopped from denying that they possessed marijuana with intent to manufacture or distribute and that the land and buildings subjected to the forfeiture action were used in the cultivation and possession of that marijuana. Summary judgment was granted, and, pursuant to the statute, forfeiture of the entire plot of land upon which the cultivation had taken place was ordered. The facts are set forth in the opinion of the district court published at 721 F.Supp. 1, and we will not repeat them here. We have reviewed each of the arguments brought up on appeal and find them to be without merit. We affirm the judgment of the district court for reasons substantially the same as those stated in the district court's opinion. We add the following response to certain arguments made by the appellants in order to clarify our position on two issues--Double Jeopardy and proportionality--in the context of drug-related civil forfeiture actions brought under 21 U.S.C. Sec. 881(a)(7).

I.

For at least three reasons, the recent case of United States v. Halper, --- U.S. ----, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989) is inapplicable. (In Halper, the Supreme Court held that a civil penalty under the federal civil False Claims Act would constitute punishment if it were so large as to be totally divorced from the Government's actual damages and expenses. Such a punishment would violate the Double Jeopardy clause of the Fifth Amendment if there were an earlier federal criminal conviction for the same offense.)

1. Prior to Halper, the Supreme Court had specifically held that the doctrine of Double Jeopardy does not apply to a civil forfeiture proceeding like the present. In United States v. One Assortment of 89 Firearms, 465 U.S. 354, 362, 104 S.Ct. 1099, 1104-1105, 79 L.Ed.2d 361 (1984), the Supreme Court held that a civil in rem forfeiture proceeding directed at property after disposition of a criminal case based on the same facts was not barred by the doctrine of Double Jeopardy. Only when a particular forfeiture proceeding is "essentially criminal in character" does the Double Jeopardy Clause apply. The forfeiture statute vindicated in that case was very similar in character to 21 U.S.C. Sec. 881, the statute invoked in the forfeiture proceedings that are the subject of the instant appeal.

This Circuit has likewise rejected the argument that the forfeiture provisions of 212 U.S.C. Sec. 881 trigger the panoply of constitutional safeguards present in criminal actions, reaffirming that this statute is "predominantly civil in nature." United States v. $250,000 in United States Currency, 808 F.2d 895, 900 (1st Cir.1987). See also United States v. One 1974 Porsche 911-S Vehicle, 682 F.2d 283, 285 (1st Cir.1982) ("A forfeiture proceeding is a civil, in rem action that is independent of any factually related criminal actions.")

2. The doctrine of Double Jeopardy does not apply to suits brought by separate sovereigns, even if both are criminal suits for the same offense. The appellants were convicted for possession of marijuana with intent to distribute and for the cultivation of marijuana in the Superior Court of the Commonwealth of Massachusetts, a sovereignty separate from the federal government. Therefore, even if the federal government had brought a criminal case against the appellants on the basis of the same acts, such a case would not be barred by Double Jeopardy. Heath v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 437-39, 88 L.Ed.2d 387 (1985); United States v. Lopez Andino, 831 F.2d 1164, 1168 (1st Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 2018, 100 L.Ed.2d 605 (1988).

3. Forfeiture of the entire property is a justifiable means to remedy the injury to the government itself that results from illegal marijuana operations; hence the forfeiture would be unlikely to constitute a "punishment" for purposes of the Double Jeopardy Clause. The Supreme Court has frequently held that one important difference between criminal and civil penalties is that the former are primarily punitive or deterrent in their purpose--calculated to "vindicate public justice,"--while civil penalties are primarily remedial and designed to "protect the government from financial loss." United States ex rel. Marcus v. Hess, 317 U.S. 537, 548-49, 63 S.Ct. 379, 386, 87 L.Ed. 443 (1943). Numerous varieties of civil penalties have been upheld on the basis that their magnitude did not greatly exceed a reasonable estimate of the loss or injury to the government resulting from the infraction that brought about the civil penalty. United States v. Halper, --- U.S. ----, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989) (civil penalties under the federal False Claims Act do not constitute a punishment in violation of the doctrine of Double Jeopardy as long as they are not totally disproportionate to the government's damages and expenses in connection with the fraud); Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917 (1938) (a 50 percent penalty for the underpayment of taxes represents a reimbursement to the government for investigatory and other costs of taxpayer fraud); United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443 (1943) (civil penalties in the amount of $2,000 for each violation plus double the amount of actual damages and the costs of the suit, assessed pursuant to 31 U.S.C. Sec. 3730(b) to those guilty of defrauding the government, were appropriate because they represented an approximation of the actual loss to the government plus the ancillary costs of detection, investigation, bringing suit, and so forth); Rex Trailer Co. v. United States, 350 U.S. 148, 76 S.Ct. 219, 100 L.Ed. 149 (1956) (civil penalties for fraud under the Surplus Property Act of 1944, 58 Stat. 765, were upheld because they were not unreasonable or excessive as a measure of recovery to remedy the government's injury); One Lot Emerald Cut Stones and One Ring v. United States, 409 U.S. 232, 237, 93 S.Ct. 489, 493, 34 L.Ed.2d 438 (1972) (customs forfeiture "provides a reasonable form of liquidated damages for violation of the inspection provisions and serves to reimburse the government for investigation and enforcement expenses").

We thus conclude that even if the original criminal proceeding in the case at bar had been brought by the same sovereign, and even if the other authorities mentioned above did not apply, the civil forfeiture proceeding under 21 U.S.C. Sec. 881(a)(7) would still...