U.S. v. Ruth, 95-1311

• Decision Date: 20 October 1995
• Docket Number: No. 95-1311,95-1311
• Citation: 65 F.3d 599
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George H. RUTH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 599

65 F.3d 599

UNITED STATES of America, Plaintiff-Appellee, v.George H. RUTH, Defendant-Appellant.

No. 95-1311.

United States Court of Appeals Seventh Circuit.

Argued June 9, 1995.

Decided Sept. 6, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied Oct. 20, 1995.

Victoria Ursulskis, Sharon Jackson(argued), Office of the United States Attorney, Indianapolis, IN, for plaintiff-appellee.

William H. Dazey, Jr.(argued), Qualkinbush & Dazey, Indianapolis, IN, for defendant-appellant.

Before CUMMINGS, CUDAHY and FLAUM, Circuit Judges.

CUDAHY, Circuit Judge.

George Ruth appeals various aspects of his conviction for possession of phenylacetic acid with intent to manufacture methamphetamine.The district court upheld the conviction against his challenges of double jeopardy, insufficient evidence, invalid search warrants and violations of the Speedy Trial Act.Ruth now appeals these decisions, as well as the district court's applications of the Sentencing Guidelines.We affirm on all claims.

I.FACTS

George Ruth was arrested on March 17, 1994 and charged with possession of phenylacetic acid with intent to manufacture methamphetamine in violation of 21 U.S.C. Sec. 841(d)(1).This arrest was the culmination of an ongoing investigation by the Drug Enforcement Agency(DEA) into Ruth's attempts to purchase phenylacetic acid (PAA).

In October of 1993, Mays Chemical in Indianapolis, Indiana was contacted by a representative of "Countryside Fragrances" concerning the purchase of PAA.This person told a Mays representative that Countryside Fragrances was a car fragrance business, and that Mays' contact person at Countryside would be George Ruth.Because Countryside had never been a customer of Mays', company policy required a credit check to be made and certain forms to be signed for the purchase of "precursor" chemicals (chemicals that can be used for manufacturing narcotics) like PAA.Mays discovered that Countryside could not be verified as an actual business and attempted to recontact Countryside by telephone.However, the telephone was answered simply "hello" and the contact person, George Ruth, was reported to be in the garage.Finding this situation suspicious, Mays informed Countryside that Mays was unable to obtain PAA to fill Countryside's order.

A few months later, in February of 1994, a "Lenzille Byrd"(Byrd) applied for and received a private mailbox at Post Office Express on behalf of Countryside Fragrance.Three days later, someone identifying himself as Lenzille Byrd and purportedly acting on behalf of Countryside Fragrances, called Aldrich, a chemical company in Milwaukee, Wisconsin, to place an order for 110 pounds (50 kilograms) of PAA.Aldrich also did a background check on Countryside and found that no such business existed.Well aware that the largest orders for PAA in Aldrich's fragrance division are usually no more than 25 kilograms, not the 50 kilograms that Countryside had ordered, Aldrich found the situation suspicious and contacted the DEA.

In cooperation with the DEA, Aldrich arranged with Countryside to send the PAA in installments, with the first portion being ten pounds broken down into an eight pound and a two pound shipment.Aldrich then sent the first installment of the Countryside order to the DEA, which examined it to ensure that it was actually PAA, and then sent it on to the Post Office Express mailbox given by Byrd.A man (later identified as Ruth) arrived to pick up the package, informing the counterperson (a DEA agent posing as an employee) that he was picking up the package for Byrd, but that he was not Byrd, he was "George"(Ruth's first name).The DEA followed Ruth/Byrd as he left with the package, but evasive tactics by Ruth caused the surveillance to be suspended.

The DEA then sought and received a search warrant for a blue garage at 2003 Lafayette Road, Indianapolis, Indiana.The garage had been rented to Ruth, and Ruth had arranged for electrical service to start at the garage on the day the PAA was delivered.The search of the garage revealed extensive evidence of a clandestine laboratory for making methamphetamine, and that the creation of a batch of methamphetamine had just been completed.A truck owned by Ruth was also on the premises and it too contained evidence of a drug "cook."

Following the search, a DEA agent arrested Ruth.Ruth had on his person at the time a driver's license and personal checks, both in the name of Lenzille Byrd.The photo on the license, however, was Ruth's face.At the time of his arrest, the government also seized $7,552 from Ruth pursuant to 21 U.S.C. Sec. 881(a)(6)(1981& Supp.1993).This seizure and subsequent forfeiture is discussed in greater detail below.

The jury found Ruth guilty on the single count of the indictment, possession of phenylacetic acid with intent to manufacture methamphetamine in violation of 21 U.S.C Sec. 841(d)(1).He was sentenced to 120 months imprisonment and supervised release for 3 years, and a fine of $15,000 was imposed.Ruth now appeals his conviction on the grounds of double jeopardy, failure to suppress evidence, violation of the Speedy Trial Act and insufficient evidence.He also contends that the district court misapplied the Sentencing Guidelines in determining his sentence.

II.DISCUSSION

A.Double Jeopardy

Ruth first argues that his conviction is barred by the Double Jeopardy Clause.The Double Jeopardy Clause of the Fifth Amendment provides "no person shall ... be subject for the same offence to be twice put in jeopardy of life or limb...."U.S. Const. Amend. V. Ruth claims that his prosecution violates this principle on the grounds that the forfeiture of his $7,552 constitutes a former jeopardy, making a criminal conviction for the same crime a second, barred, punishment.He contends that recent decisions by the Supreme Court, finding that civil penalties can constitute "punishment" for the purposes of double jeopardy, establish that a civil forfeiture such as the one to which he was subjected is also "punishment" for double jeopardy purposes.SeeMontana Department of Revenue v. Kurth Ranch, --- U.S. ----, 114 S.Ct. 1937, 128 L.Ed.2d 767(1994);Austin v. United States, --- U.S. ----, 113 S.Ct. 2801, 125 L.Ed.2d 488(1993).

This same argument was recently addressed in this circuit in United States v. Torres, 28 F.3d 1463(7th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 669, 130 L.Ed.2d 603(1994).There we recognized, as the Supreme Court has, that "forfeiture and civil fines can be penalties for a crime,"(citingAustin, --- U.S. ----, 113 S.Ct. 2801, 125 L.Ed.2d 488andUnited States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487(1989)), and that "a financial exaction can count as a separate jeopardy"(citingHalper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487andKurth Ranch, --- U.S. ----, 114 S.Ct. 1937, 128 L.Ed.2d 767).In Torres, as here, the defendant asked us to "put these opinions together and hold that the forfeiture ... is a former jeopardy barring the sentence of imprisonment."Torres, 28 F.3d at 1464.

In Torres, however, this court ultimately concluded that the defendant had not been subjected to double jeopardy because he had not contested his forfeiture.The failure to contest the forfeiture, we determined, meant that the defendant was not a party to the forfeiture and thus had not been subjected to a "former jeopardy."Id.;see alsoUnited States v. Penny, 60 F.3d 1257, 1262(7th Cir.1995)(agreeing with Torres "that an individual could not be placed in former jeopardy if ... he did not make a claim to ownership of the assets").However, Ruth argues that his case is different from Torres in that he demonstrated at least an attempt to contest the forfeiture, thereby making him, he claims, a party to the forfeiture and a legitimate claimant for dismissal of his prosecution under the Double Jeopardy Clause.

The seizure of Ruth's property was, we must concede, a rather inadequately handled matter.When Ruth was arrested, the government seized $7,552 from him pursuant to 21 U.S.C. Sec. 881(a)(6)(1981& Supp.1993).On May 2, 1994, the DEA sent Ruth notice that his property had been seized and was subject to forfeiture.Ruth received this notice on May 9th, and had until May 31st to respond and contest the forfeiture.¹

Ruth asserts that he mailed a letter on May 24th asking for an extension of time in which to contest the forfeiture or "request remission or mitigation of the forfeiture," and has provided us with a copy of that letter.Appellant'sApp. 34-35.The DEA, though, asserts that it has no record of receiving this letter from Ruth.Nevertheless, the DEA sent a letter to Ruth on June 16th which indicated that it had in fact received something from him.Appellant'sApp. 32-33.This letter advised Ruth that his "claim for the property" had been received, but was being returned because it was submitted after the last date to file.It also notified Ruth that "proceedings have been taken to administratively forfeit and dispose of this property."Further, the letter stated that

[a]lthough you did not file a Petition for Remission and/or Mitigation, along with your claim, ... we will allow you 20 days, from receipt of this letter, to file a petition for an administrative ruling by [the DEA] before the property is disposed of according to law.Id.²

This letter was correctly addressed to Ruth and properly indicated May 31st as the last date to file a claim.However, the case number for the forfeiture was incorrect by one number, and as a result the rest of the information in the header box of the letter referenced the wrong seizure.SeeAppellant'sApp. 32.On June 17th, the day after this letter to Ruth was mailed, the DEA declared the property forfeited.

The district court concluded that this confusing letter from the DEA was a notice that the DEA was denying Ruth's request for extension of time because the request was received...