U.S. v. Perez

• Decision Date: 21 November 1995
• Docket Number: No. 94-60788,94-60788
• Citation: 70 F.3d 345
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gloria PEREZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 345

70 F.3d 345

64 USLW 2355

UNITED STATES of America, Plaintiff-Appellee, v. Gloria PEREZ, Defendant-Appellant.

No. 94-60788.

United States Court of Appeals Fifth Circuit.

Nov. 21, 1995.

J.R. "Bobby" Flores, McAllen, TX, for Appellant.

Joseph D. Wilson, U.S. Dept. of Justice, Washington, DC, Kathlyn G. Snyder, Paula C. Offenhauser, Asst. U.S. Attys., Gaynell Griffin Jones, U.S. Atty., Houston, TX, for Appellee.

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

Before KING, SMITH and STEWART, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

This matter involves a challenge to a continuing prosecution as a violation of the Double Jeopardy Clause of the Fifth Amendment. The district court denied a motion to dismiss the indictment. Concluding that the prosecution violates the Double Jeopardy Clause, we reverse and remand with instructions to dismiss the indictment.

I.

Defendant Gloria Perez and her four children entered the United States in a private vehicle via the border checkpoint at Falfurrias, Texas. Border Patrol officers discovered ninety-six kilograms of marihuana in the vehicle, arrested Perez, and seized the vehicle.

A grand jury issued an indictment charging Perez with possession of marihuana with intent to distribute, a violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(C). The United States then brought an in rem civil proceeding seeking forfeiture of the vehicle under 21 U.S.C. Sec. 881(a)(4).

Perez and the government filed a "Stipulation of Settlement" in which Perez agreed that the car would be forfeited to the United States. The district court approved the "Stipulation of Settlement" in an "Agreed Order of Forfeiture and Dismissal," in which the court ordered forfeiture of the vehicle and dismissal of the forfeiture action.

Perez moved to dismiss the indictment, claiming that the ongoing criminal prosecution violated the Double Jeopardy Clause's prohibition against multiple punishments. The district court denied the motion.

During the hearing on the motion to dismiss, the court heard evidence with regard to the forfeiture. A special agent of the Drug Enforcement Administration testified that the government's costs for investigating the Perez case amounted to $11,000, not including the costs of the United States Attorney or of the district court. This agent also testified that the street value of the marihuana was about $128,000 and that the proceeds from sales of the drug probably would have left the country. The agent calculated the value of the vehicle at $22,000, whereas Perez testified that she had paid $31,000 for it.

The court's denial of the motion included a proportionality review of the forfeiture, which involved consideration of whether the amount forfeited bore a rational relation to the government's costs. The court found that it did and that the forfeiture removed a "tool of the [drug] trade" from Perez. The court also found that the value of the car was $23,000, that the forfeiture was not overwhelmingly disproportionate to the government's costs, and that the forfeiture therefore bore a rational relation to a remedial purpose: reimbursing the government and society for the costs of Perez's allegedly wrongful conduct.

II.

The government claims that we have no jurisdiction to hear Perez's appeal, noting the federal law's general disapproval of interlocutory appeals, particularly in criminal cases. See Abney v. United States, 431 U.S. 651, 656-57, 97 S.Ct. 2034, 2038-39, 52 L.Ed.2d 651 (1977) (opining that such appeals are generally disfavored). Despite this underlying presumption, however, federal courts have entertained interlocutory appeals from orders denying dismissal of an indictment on double jeopardy grounds. Id. at 651, 97 S.Ct. at 2035-36; United States v. Tilley, 18 F.3d 295 (5th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 574, 130 L.Ed.2d 490 (1994); see generally Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) (holding certain collateral orders appealable). The Abney Court held that federal courts of appeals may hear double jeopardy claims on interlocutory appeal under the collateral order doctrine of Cohen [S]uch orders fall within the small class of cases that Cohen has placed beyond the final judgment rule. In the first place there can be no doubt that such orders constitute a complete, formal, and, in the trial court, final rejection of a criminal defendant's double jeopardy claim....

Moreover, the very nature of a double jeopardy claim is such that it is collateral to, and separable from the principal issue at the accused's impending criminal trial, whether or not the accused is guilty of the offense charged.

431 U.S. at 659, 97 S.Ct. at 2040 (emphasis added).

The government tries to distinguish Abney on the ground that Abney involved a multiple-prosecution double jeopardy analysis, not a multiple-punishment analysis as in this case. That argument is foreclosed by Tilley, in which we took jurisdiction under Abney, without discussion, of an interlocutory appeal from a refusal to dismiss an indictment. See Tilley, 18 F.3d at 297. The motion to dismiss in Tilley made the same double jeopardy argument that Perez makes here (a violation of the clause's prohibition on multiple punishments). Cf. id. Given Abney and Tilley, there is no question that we have jurisdiction over Perez's appeal.

III.

A recent Supreme Court decision resolves any question of ripeness here, even though that case did not have precisely the same posture as the one before us now. In Witte v. United States, --- U.S. ----, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995), the government appealed a district court order granting a defendant's motion to dismiss an indictment based on the multiple punishments prong of the Double Jeopardy Clause. Id. at ----, 115 S.Ct. at 2203-04. On appeal, a panel of this court reversed and remanded, and that judgment was affirmed, with the Court holding the case to be ripe for appellate review even though the defendant had not yet been convicted of the charges in the contested indictment. Id. at ----, 115 S.Ct. at 2205.

The defendant in Witte had pleaded guilty to conspiring and attempting to possess marihuana with intent to distribute. Id. at ----, 115 S.Ct. at 2202-03. During sentencing, the district court took into account evidence of uncharged criminal conduct relating to cocaine and enhanced the defendant's sentence based upon that evidence. Id. at ----, 115 S.Ct. at 2203. A subsequent indictment on the cocaine charges issued and was dismissed on the ground that the conduct forming the basis of the indictment had already been used to "punish" the defendant when his sentence on the marihuana counts had been enhanced, thus creating a double jeopardy violation. Id. at ----, 115 S.Ct. at 2203-04.

In Witte, as in Perez, there was some question as to whether the defendant had been placed in jeopardy prior to the contested indictment. In Perez, the prior proceeding alleged by defendant to have placed her in jeopardy was a civil forfeiture proceeding. In Witte, the prior proceeding was a sentencing in which the conduct forming the basis of the contested indictment had been taken into account.

The analysis in Witte demonstrates that the case before us is ripe:

Petitioner nevertheless argues that, because the conduct giving rise to the cocaine charges was taken into account during sentencing for the marijuana conviction, he effectively was "punished" for that conduct during the first proceeding. As a result, he contends, the Double Jeopardy Clause bars the instant prosecution. This claim is ripe at this stage of the prosecution--although petitioner has not yet been convicted of the cocaine offenses--because, as we have said, "courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial." ... Thus, if petitioner is correct that the present case constitutes a second attempt to punish him criminally for the same cocaine offenses ..., then the prosecution may not proceed.

Id. at ----, 115 S.Ct. at 2204-05 (emphasis added, internal citations omitted). Thus, if Perez is correct that the present case constitutes a second attempt to punish her criminally for the same marihuana offenses, the prosecution may not proceed. ¹

IV.

The Double Jeopardy Clause states: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. CONST. AMEND. V. The courts have interpreted this clause to provide protection from both multiple prosecutions (after either an acquittal or a conviction) and multiple punishments. See, e.g., Witte, --- U.S. at ----, 115 S.Ct. at 2204. In the case before us, the parties agree that only the multiple punishments prong is at issue.

The core issue in Perez is the same as that faced in United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989): "[W]hether 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. ² Announced in Halper, the governing legal standard for resolving this issue is whether the civil sanction serves solely a remedial purpose, or also a retributive or deterrent purpose. Id. at 448, 109 S.Ct. at 1901-02. If the latter is true, the sanction constitutes punishment for purposes of double jeopardy analysis.

This standard is typically effected as a case-by-case proportionality review: If the sanction is overwhelmingly disproportionate to the damages caused by a defendant's alleged wrongful conduct, it constitutes punishment. See id. at 449, 109 S.Ct. at 1902. Such a proportionality review must include an accounting of the government's damages and costs, see id., to determine whether the sanction was disproportionate. The damages and costs borne by society as a result of the defendant's unlawful...