US v. Falkowski, A92-154 CR (JKS).

CourtUnited States District Courts. 9th Circuit. District of Alaska
Writing for the CourtSINGLETON
Citation900 F. Supp. 1207
PartiesUNITED STATES of America, Plaintiff, v. Philip FALKOWSKI, Defendant.
Docket NumberNo. A92-154 CR (JKS).,A92-154 CR (JKS).
Decision Date25 September 1995

900 F. Supp. 1207

UNITED STATES of America, Plaintiff,
Philip FALKOWSKI, Defendant.

No. A92-154 CR (JKS).

United States District Court, D. Alaska.

September 25, 1995.

900 F. Supp. 1208

Matthew Claman, Anchorage, for petitioner.

Elizabeth S. O'Leary, Assistant United States Attorney, Anchorage, and Robert C. Bundy, United States Attorney, Anchorage, and Stefan D. Cassella, Deputy Director Asset Forfeiture Office, Washington, DC, for United States.


SINGLETON, District Judge.

Philip Falkowski, moves pursuant to 28 U.S.C. § 2255 to vacate his conviction for various drug offenses on the ground that contemporaneous civil forfeitures, stemming from the same criminal conduct, resulted in double jeopardy in violation of the Fifth Amendment to the United States Constitution. Docket Nos. 1047, 1107, and 1129. The motion is opposed. Docket Nos. 1092 and 1130. Magistrate Judge Roberts, to whom this matter was initially referred, recommends that the motion be denied. Docket Nos. 1116 and 1131. After an independent and de novo review of the record, this Court agrees and accepts Judge Roberts' recommendation.


On October 6, 1992, Falkowski and co-defendants were indicted on charges related to the cultivation and distribution of marijuana in the Fairbanks area. Falkowski was charged as part of a continuing conspiracy headed by John Collette, and with conducting a continuing criminal enterprise and related offenses. The indictment contained

900 F. Supp. 1209
criminal forfeiture counts addressing property in which Falkowski was alleged to claim an interest

On October 7, 1992, the day following the return of the indictment, the government filed civil forfeiture proceedings against real property located at 1804 Caribou Way in Fairbanks, Alaska. This property had also been listed in the indictment. The criminal case was brought in Anchorage while the civil case proceeded in Fairbanks. Falkowski was served but did not file a claim regarding the civil forfeiture of the Caribou Way property, while others with interest in the real estate did file claims.

On October 14, 1992, Falkowski was arrested and simultaneously served with notice of the arrest of the property at 1804 Caribou Way.

On November 5, 1992, the United States sought entry of default against Falkowski in the civil forfeiture case. The request made no reference to the pending criminal prosecution.

On November 13, 1992, Falkowski pled guilty to some of the charges in the indictment pursuant to a plea agreement anticipating that the other counts would be dismissed. The charges to which Falkowski pled included conducting a continuing criminal enterprise, money laundering, and investing drug proceeds in a business enterprise. As part of the plea agreement, Falkowski agreed to forfeit any property 1) which he acquired as a result of drug trafficking and 2) to assist the government in locating and seizing any such property. The plea agreement did not specify whether the property at 1804 Caribou Way would be forfeited civilly or criminally. In fact, the plea agreement made no specific reference to the Caribou Way property or the civil forfeiture proceeding.

On December 2, 1992, the government made a second request to enter default against Falkowski in the civil forfeiture action. On December 14, 1992, the clerk entered a default against all defendants or claimants in the forfeiture action who had not filed claims, answers or responses. The defaulted parties included Falkowski.

On February 2, 1993, the United States moved for a decree of forfeiture, relying in part on the declaration and order of default. The 1804 Caribou Way property was ordered forfeited to the United States by an order entered on February 10, 1993.

On July 28, 1993, the district court sentenced Falkowski to identical concurrent seventy two month sentences on each of the counts of conviction. The judgement of conviction makes no reference to forfeiture of the Caribou Way property.

Falkowski filed this motion to vacate on April 5, 1995.


Falkowski contends that the civil forfeiture of some of his property coupled with his significant prison sentence constitutes multiple punishments for the "same offense" which is barred by the double jeopardy clause of the United States Constitution. He contends that the default judgment forfeiting his property preceded his sentence and, therefore, his criminal sentence should be vacated. The Fifth Amendment provides that "No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb ..." U.S. CONST. amend. V. The double jeopardy clause protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). Although the text mentions only harm to life or limb, the Fifth Amendment covers imprisonment and monetary penalties as well. See United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989). A civil forfeiture proceeding is not a criminal prosecution. United States v. One Assortment of 89 Firearms, 465 U.S. 354, 361-62, 104 S.Ct. 1099, 1104, 79 L.Ed.2d 361 (1984). Thus, this Court is only concerned in this case with the punishment prong of the rule.

There are three reasons why Falkowski's attack on his criminal sentence must fail: First, as Judge Roberts found, jeopardy attached in the criminal case before the default judgment was entered in the civil proceeding.

900 F. Supp. 1210
Second, by entering a plea of guilty, Falkowski waived or, more accurately, forfeited the right to collaterally attack his conviction and sentence on double jeopardy grounds. Third, the civil forfeiture proceeding was not based upon the same offense for which Falkowski was criminally prosecuted


Where a defendant contends that he was subject to multiple punishments for the same offense, it is necessary to determine the point at which jeopardy attaches because first in time is apparently first in right. See, e.g., United States v. Faber, 57 F.3d 873 (9th Cir.1995); United States v. Barton, 46 F.3d 51, 52 (9th Cir.1995); United States v. Kearns, 61 F.3d 1422, 1428 (9th Cir.1995). Jeopardy attaches in a criminal case when the jury is sworn or, as in this situation, when the case settles without trial, jeopardy attaches when a plea is accepted. Faber, 57 F.3d at 874-75. In the instant case, Falkowski entered an unconditional plea on November 13, 1992. While there is some uncertainty regarding the point at which jeopardy "attaches" in a civil forfeiture proceeding, the consensus seems to be that the earliest jeopardy attaches is when an answer is filed in the civil forfeiture proceeding. Barton, 46 F.3d at 52. See also United States v. Wong, 62 F.3d 1212, 1214 (9th Cir. 1995) (citing Barton, 46 F.3d at 52). Falkowski never filed an answer and, so under this Court's holding in United States v. Collette, 892 F.Supp. 232 (D.Alaska 1995), jeopardy never attached. Accord United States v. Torres, 28 F.3d 1463 (7th Cir.1994) cert. denied ___ U.S. ___, 115 S.Ct. 669, 130 L.Ed.2d 603 (1994); See also United States v. Cretacci, 62 F.3d 307, 310 (9th Cir.1995). Alternatively, the only other significant date would be the entry of default judgment against Falkowski on February 10, 1993. Until final judgment was entered, Falkowski could still seek to reclaim the property. United States v. A Parcel of Land, Buildings, Appurtenances and Improvements, Known as 92 Buena Vista Ave., Rumson, New Jersey, 507 U.S. 111, ___, 113 S.Ct. 1126, 1136, 122 L.Ed.2d 469 (1993) (until judgment entered, the government does not own property). Judge Roberts is, therefore, correct that the civil forfeiture of the Caribou Way property does not impact Falkowski's criminal sentence. See also United States v. Stanwood, 872 F.Supp. 791, 798-801 (D.Or. 1994).


In a number of decisions, the United States Supreme Court has distinguished between the forfeiture of constitutional rights and the waiver of constitutional rights. See, e.g., United States v. Olano, ___ U.S. ___, ___, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993). A forfeiture occurs where the person possessing a right fails to timely assert it before a tribunal having jurisdiction over that right. Forfeiture is automatic and does not require evidence that the person possessing the right intended to give it up or was even aware of its existence. In contrast, a true waiver is the "intentional relinquishment or abandonment of a known right." Olano, ___ U.S. at ___, 113 S.Ct. at 1777 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). As the Supreme Court has noted, some constitutional rights are forfeitable while others require a true waiver to be lost. The Court seems to be moving in the direction of holding that where a defendant is represented by counsel and provided a forum in which to assert her constitutional rights, she "forfeits" them by failing to make a timely assertion. In contrast, where there is a police interrogation, a defendant lacks counsel and a proper contemporaneous forum and will only lose her rights by a true waiver. See, e.g., Andrew v. State, 694 P.2d 168, 172-74 (Alaska Ct.App. 1985) (Singleton, J. concurring).

In United States v. Broce, 488 U.S. 563, 569-74, 109 S.Ct. 757, 762-65, 102 L.Ed.2d 927 (1989), the Supreme Court held that a person pleading guilty to an offense forfeits any double jeopardy claim he might have.1 The Broce Court, however, recognized

900 F. Supp. 1211
a narrow exception to this forfeiture rule where "`... judged on its face, the charge is one which the State may not constitutionally prosecute.'" Broce, 488 U.S. at 575, 109 S.Ct. at...

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