U.S. v. Sanchez-Escareno, SANCHEZ-ESCAREN

Decision Date19 December 1991
Docket NumberNos. 90-2577,A,SANCHEZ-ESCAREN,90-2613 and 90-2614,s. 90-2577
Citation950 F.2d 193
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Maximilianodolpho Ayala Sanchez and David Garcia Lopez, Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Kathlyn Felton, Atty., Appellate Section, Crim. Div., U.S. Dept. of Justice, Washington, D.C., Paula C. Offenhauser, Asst. U.S. Atty., Henry K. Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellant.

Jose I. Gonzalez-Falla, Asst. Federal Public Defender, Roland Dahlin, II, Federal Public Defender, Thomas S. Berg, Daniel H. Wassamaker, Asst. Federal Public Defenders, Houston, Tex., for defendant-appellee.

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

Before POLITZ and HIGGINBOTHAM, Circuit Judges, and WINGATE, * District Judge.

WINGATE, District Judge:

The government here appeals the district court's dismissal of various criminal charges against the appellees on the ground of double jeopardy. Prior to the return of criminal indictments against the appellees, United States Customs officials had arrested appellees and assessed large civil fines against them for possessing marijuana and attempting to import same into the United States from Mexico. The assessed civil fines addressed the same conduct which was the basis of the subsequent criminal indictments. 1 Appellees acknowledged the civil fines by executing promissory notes. Everyone agrees that, if paid, these civil fines, punitive in amount and character, would constitute "punishment" under the Double Jeopardy Clause pursuant to United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989). Appellees have not paid the civil fines, nor has the government sought to collect on the promissory notes. Nevertheless, convinced that "punishment" was imposed upon appellees when they executed the promissory notes, the district court judge dismissed the criminal charges of possession of marijuana with intent to distribute and importation of marijuana. We are persuaded otherwise and reverse.

I. Facts

Appellees Adolpho Ayala Sanchez, Maximiliano Sanchez-Escareno, and David Garcia Lopez were separately arrested, charged and assessed civil fines. Their cases are intertwined here on appeal because their cases are tied together by similar operative facts. These factual common denominators will be evident, as each appellee's trek to this court is charted.

A. Adolpho Ayala Sanchez

On December 29, 1989, appellee Adolpho Ayala Sanchez was captured by United States Customs officials at the Rome, Texas, Port of Entry attempting to smuggle twenty-nine (29) pounds of marijuana into the United States from Mexico. Pursuant to a border search, the officials stopped appellee's car, searched it and found the marijuana in sealed cans inside the gas tank. Sanchez was immediately arrested, advised of his Miranda rights and subsequently incarcerated at the Port of Entry. There, agents with the United States Customs Service advised appellee that they were seizing his car and that he was personally subject to a civil penalty under 19 U.S.C. § 1497 2 for importation of undeclared articles. Appellee acknowledged the penalty by signing the following documents: An Agreement to Pay Monetary Penalty; Receipt for Merchandise Retained in Customs Custody and/or Notice of Fine, Penalty, and/or Seizure; Notice of Seizure and Information for Claimants, Form AF; Notice of Abandonment and Assent to Forfeiture of Prohibited or Seized Merchandise and Certificate of Destruction; and Notice of Expedited Judicial Forfeiture Procedures. Additionally, appellee was given a copy of a Notice of Penalty or Liquidated Damages Incurred and Demand for Payment.

Later, after appellee had been moved to the Starr County Jail, Customs officer Jimmy E. Green had appellee execute new forms which increased the assessed amount and which reflected a civil assessment under 19 U.S.C. § 1584 3 as opposed to the originally-stated statute of 19 U.S.C. § 1497. Supposedly, the government switched its reliance from § 1497 to § 1584 because of the department's policy change of assessing wholesale quantities of contraband under § 1584(a)(2), titled "Falsity or Lack of Manifest; Penalties." This statute authorizes the Customs Service to assess penalties whenever a person driving a vehicle enters the United States and refuses to produce the manifest, or fails to include merchandise in the vehicle on the manifest. If the unreported item is marijuana, as it was here, the statute imposes a penalty of $500.00 an ounce. So, in this case, the penalty totaled $232,000.00.

The contents of two of the documents signed by appellee merit some attention. 4 The Agreement to Pay Monetary Penalty, the promissory note, contains the following language:

Through execution of this agreement, I promise to pay to the United States Customs Service the amount still due and owing with regard to this penalty within 30 days of the date of this agreement. I recognize that failure to pay this penalty could result in detention of my person upon future entries into the United States or legal action against me by Customs to collect any unpaid amount. I also acknowledge that presentation of this document in any subsequent legal proceeding shall be prima facie evidence of this unpaid personal penalty.

In the Notice of Penalty or Liquidated Damages Incurred and Demand for Payment Document, we find the following statements:

A personal penalty in the above-cited amount has been assessed against you, for violation of 19 USC 1584(a)(2).

Payment of penalty does not compromise or settle any criminal violations; you may still be subject to criminal prosecution and may be judicially summoned for this purpose at a later time by the appropriate federal or state court.

At the base of the document, in smaller print, is the following advice:

If you feel there are extenuating circumstances, you have the right to object to the above action. Your petition should explain why you should not be penalized for the cited violation. Write the petition as a letter or in legal form; submit in (duplicate) (triplicate), addressed to the Commissioner of Customs, and forward to the District Director of Customs at

P.O. Box 3130, Laredo, Texas 78040-3130

Unless the amount herein demanded is paid or a petition for relief is filed with the District Director of Customs within 60 days from the date hereof, further action will be taken in connection with your bond or the matter will be referred to the United States Attorney.

Apparently, this latter provision has its source in 19 U.S.C. § 1618 which provides: 5

Whenever any person interested in any vessel, vehicle, aircraft, merchandise, or baggage seized under the provisions of this chapter, or who has incurred, or is alleged to have incurred, any fine or penalty thereunder, files with the Secretary of the Treasury if under the customs laws, and with the Commandant of the Coast Guard or the Commissioner of Customs, .... a petition for the remission of mitigation of such fine, penalty, or forfeiture, .... or finds the existence of such mitigating circumstances as to justify the remission or mitigation of such fine, penalty, or forfeiture, [the Secretary of the Treasury or the Commissioner of Customs] may remit or mitigate the same upon such terms and conditions as he deems reasonable and just or order discontinuance of any prosecution relating thereto.

On January 23, 1990, the government obtained a four-count indictment against appellee for conspiracy to possess marijuana with intent to distribute it; conspiracy to import marijuana; importation of marijuana; and possession of marijuana with intent to distribute it pursuant to 21 U.S.C. *197s § 846, 841(a)(1), 963, 952(a), and 18 U.S.C. § 2.

B. Maximiliano Sanchez-Escareno

On January 28, 1990, at United States Customs Port of Entry at Hidalgo, Texas, appellee Maximiliano Sanchez-Escareno was arrested after his 1981 Ford pickup truck, fresh out of Mexico, was stopped, searched and unburdened of forty-four and one-half (44.5) pounds of marijuana found in the gas tank of the truck. Thereafter, appellee's experiences are a repeat of those encountered by appellee Adolpho Sanchez. Appellee Sanchez-Escareno was first assessed a civil penalty of $120,657 under 19 U.S.C. § 1497, which later was increased to $356,000 pursuant to 19 U.S.C. § 1584. This appellee signed similar documents as had Adolpho Sanchez, including an Agreement to Pay Monetary Penalty and Notice of Penalty or Liquidated Damages Incurred and Demand for Payment. Subsequently, appellee Sanchez-Escareno was indicted on the same four counts as had been Adolpho Sanchez.

C. David Garcia Lopez

On February 10, 1990, appellee David Garcia Lopez was stopped at the United States Customs Service Port of Entry at Rio Grande City, Texas, where a search of his 1973 Ford pickup truck revealed eight (8) pounds of marijuana. The illegal drug was found secreted in a tool box in the bed of the truck. The officials assessed a fine of $64,000 by having Mr. Lopez sign an Agreement to Pay Monetary Penalty together with accompanying documents. The officials similarly erred by citing 19 U.S.C. § 1497 as the penalty statute; however, the government amended the documents and sought penalties pursuant to 19 U.S.C. § 1584. Following these transactions and similar to the events relative to Mr. Sanchez and Mr. Sanchez-Escareno, the government obtained an indictment against Mr. Lopez for the same four counts.

II. Double Jeopardy--Its Contours

In all three cases the district court judge dismissed the counts of importation of marijuana and possession of marijuana with intent to distribute based upon the principle of double jeopardy, even though none of the appellees had paid the civil penalties and even though the government had taken no steps towards collecting on the promissory notes. Our disagreement with the district court hinges on our...

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