U.S. v. Torres

• Decision Date: 11 July 1994
• Docket Number: No. 93-3875,93-3875
• Citation: 28 F.3d 1463
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Renato TORRES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1463

28 F.3d 1463

UNITED STATES of America, Plaintiff-Appellee, v. Renato TORRES, Defendant-Appellant.

No. 93-3875.

United States Court of Appeals, Seventh Circuit.

Argued June 15, 1994.

Decided July 11, 1994.

Barry R. Elden, Asst. U.S. Atty., Ronald D. May (argued), Office of U.S. Atty., Crim. Receiving, Appellate Div., Chicago, IL, for U.S.

Fred M. Morelli, Jr., Aurora, IL (argued), for Renato Torres.

Before ESCHBACH, EASTERBROOK, and RIPPLE, Circuit Judges.

EASTERBROOK, Circuit Judge.

Renato Torres and Carlos Olivares produced $60,000 to pay for three kilograms of cocaine. It was a trap. The "sellers" were federal agents; Torres and Olivares lost the money and their liberty. Torres pleaded guilty to drug offenses and was sentenced to 73 months' imprisonment. His sole argument on appeal is that, by virtue of the double jeopardy clause, the forfeiture of the $60,000 precludes the sentence of imprisonment.

We know from Austin v. United States, --- U.S. ----, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), and United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), that forfeiture and civil fines can be penalties for crime, and from Halper and Montana Department of Revenue v. Kurth Ranch, --- U.S. ----, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), that a financial exaction (in Kurth Ranch, a tax imposed only on persons arrested for drug offenses) can count as a separate jeopardy. Austin involved 21 U.S.C. Sec. 881, the same statute invoked to forfeit the $60,000. Torres asks us to put these opinions together and hold that the forfeiture, which occurred first, is a former jeopardy barring the sentence of imprisonment.

If the prosecutor had sought both forfeiture and imprisonment via the same indictment, Torres's argument would be a non-starter. For the double jeopardy clause does not bar cumulative punishments imposed in a single proceeding--whether these punishments be the ordinary combination of prison plus a fine, or consecutive terms in prison, or prison plus a forfeiture. Ohio v. Johnson, 467 U.S. 493, 500, 104 S.Ct. 2536, 2541, 81 L.Ed.2d 425 (1984); Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983); Albernaz v. United States, 450 U.S. 333, 343-44, 101 S.Ct. 1137, 1144-45, 67 L.Ed.2d 275 (1981); Whalen v. United States, 445 U.S. 684, 693, 100 S.Ct. 1432, 1438, 63 L.Ed.2d 715 (1980); United States v. Masters, 978 F.2d 281, 285 (7th Cir.1992). But the prosecutor did not seek both prison and forfeiture in a single indictment, which would have ensured that there would be a single trial (and hence only one jeopardy). See Fed.R.Crim.P. 7(c)(2), 31(e), 32(b)(2). Instead the United States commenced separate criminal and administrative proceedings, one seeking imprisonment (plus a fine) and the other seeking forfeiture. With the benefit of Austin and Kurth Ranch, both of which were decided after this prosecution began, the prosecutor doubtless can see the hazards of such an approach. The United States would do well to seek imprisonment, fines, and forfeiture in one proceeding. ^d When choosing between civil and criminal forfeitures, the prosecutor will have to recall that after Halper, Austin, and Kurth Ranch the nomenclature "civil" does not carry much weight. We must consider whether, by beginning separate, but parallel, proceedings, the prosecutor has freed Torres from imprisonment.

Writing before Kurth Ranch, two courts of appeals answered in the negative on the ground that parallel civil and criminal proceedings are really a single action, distinct only because "[c]ivil and criminal suits, by virtue of our federal system of procedure, must be filed and docketed separately." United States v. Millan, 2 F.3d 17, 20 (2d Cir.1993); see also United States v. 18755 North Bay Road, 13 F.3d 1493, 1499 (11th Cir.1994). There is force to this in the sense that the civil and criminal actions may be coordinated, holding down expense and travail. But if as Kurth Ranch holds a civil proceeding to collect a monetary penalty for crime counts as an independent "jeopardy," it does not require much imagination to see the problem. Civil and criminal proceedings are not only docketed separately but also tried separately, and under the double jeopardy clause separate trials are anathema.

Suppose the civil forfeiture gets to trial first. The United States will try to show that the money was used in an illegal drug transaction. 21 U.S.C. Sec. 881(a)(6). At the beginning of the hearing, when evidence is first presented to the trier of fact in a proceeding seeking to impose a penalty for crime, jeopardy "attaches." See Crist v. Bretz, 437 U.S. 28, 32-36, 98 S.Ct. 2156, 2159-61, 57 L.Ed.2d 24 (1978). At the end of the proceeding, the trier of fact makes appropriate findings and either forfeits the property or concludes that the claimant didn't do it or has some statutory defense. Come the criminal trial, the accused can plead former jeopardy--former conviction (and punishment) on the one hand, former acquittal on the other. The point of Johnson, Hunter, and Albernaz is that cumulative punishments imposed at the end of a single trial do not violate a constitutional rule limiting the number of times the accused may be put to his defense for the same crime. Separate administrative and criminal proceedings can lead to two trials, each of which produces a punishment for a single offense. Two trials, even if close in time, are still double jeopardy. This would be clear enough if the United States put Torres on trial, convicted him of attempting to buy the cocaine, and sentenced him to 37 months' imprisonment, then the next day held a second trial for the same offense and tacked on another 36 months, for a total of 73. Although 73...