US v. McCaslin

• Decision Date: 02 September 1994
• Docket Number: No. CR90-165WD.,CR90-165WD.
• Citation: 863 F. Supp. 1299
• Parties: UNITED STATES of America, Plaintiff, v. Duane B. McCASLIN, Defendant.
• Court: U.S. District Court — Western District of Washington

863 F. Supp. 1299

UNITED STATES of America, Plaintiff, v. Duane B. McCASLIN, Defendant.

No. CR90-165WD.

United States District Court, W.D. Washington, at Seattle.

September 2, 1994.

Bonnie McNaughton, U.S. Atty., Seattle, WA, Scott Ray, Washington, DC, for plaintiff.

Jeffrey Steinborn, Reba Weiss, Seattle, WA, for defendant.

ORDER ON MOTION TO VACATE CONVICTION AND SENTENCE UNDER 28 U.S.C. § 2255

DWYER, District Judge.

I. INTRODUCTION

Defendant Duane B. McCaslin moves to vacate his conviction and sentence under 28 U.S.C. § 2255, which provides:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States ... may move the court which imposed the sentence to vacate, set aside, or correct the sentence.

Although McCaslin has served his prison term, he is still on supervised release, and therefore has standing to bring the motion. Fraley v. United States Bureau of Prisons, 1 F.3d 924 (9th Cir.1993). He contends that he was convicted and sentenced in violation of the Double Jeopardy Clause, which provides: "Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; ...." U.S. Const., Amdt. 5.

The heart of McCaslin's argument is that his right not to be placed twice in jeopardy was violated when he was tried and sentenced after the government had completed a forfeiture of his residential real property pursuant to 21 U.S.C. § 881(a)(7). That section provides for the forfeiture to the United States of any real property "used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of" certain drug laws. McCaslin's pretrial motion for dismissal was denied and he was convicted in 1991 of manufacturing marijuana, possessing marijuana with intent to distribute it, and maintaining a residence for the purpose of manufacturing marijuana. Dkt. # 109. He was sentenced to fifteen months' imprisonment to be followed by three years of supervised release. Dkt. # 104. In the present motion McCaslin relies upon Austin v. United States, ___ U.S. ___, ___, 113 S.Ct. 2801, 2812, 125 L.Ed.2d 488 (1993), where the Supreme Court held that a forfeiture under 21 U.S.C. § 881(a)(7) constitutes a punishment and is therefore subject to the limitations of the Eighth Amendment's Excessive Fines Clause. It follows from Austin, defendant argues, that his second punishment — the criminal sentence — was imposed in violation of the Double Jeopardy Clause.

All materials filed, and the arguments of counsel presented in open court on July 20, 1994, have been fully considered.

II. SCOPE OF DOUBLE JEOPARDY PROTECTION

The Double Jeopardy Clause "represents a fundamental ideal in our constitutional heritage." Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969). It 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. United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989). The Clause is not limited to "life or limb" sanctions; it applies to imprisonment and monetary penalties as well. See, e.g., United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989); Ex Parte Lange, 18 Wall. 163, 21 L.Ed. 872 (1874). Multiple punishments are permissible if imposed in the same proceeding; they are barred if imposed in separate proceedings. Halper, 490 U.S. at 450-51, 109 S.Ct. at 1902-03; Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 679-80, 74 L.Ed.2d 535 (1983).

III. FORFEITURE OF PROPERTY UNDER 21 U.S.C. § 881(a)(7) AS PUNISHMENT

The Supreme Court in United States v. Halper, supra, held that a civil sanction is a punishment for double jeopardy purposes to the extent that it "may not be fairly characterized as remedial, but only as a deterrent or retribution." The label "civil" attached to the penalty makes no difference. 490 U.S. at 448-49, 109 S.Ct. at 1902. Citing Halper, this court in 1990 denied defendant McCaslin's pretrial motion for dismissal of his criminal prosecution on double jeopardy grounds, finding that the earlier forfeiture of his $30,000 net equity in real estate had been "clearly compensatory" and not punitive. Dkt. # 34. The Ninth Circuit affirmed on a different basis, i.e., that a civil forfeiture "is directed against the property and not at an individual" and therefore does not implicate the Double Jeopardy Clause. United States v. McCaslin, 959 F.2d 786, 788 (9th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 382, 121 L.Ed.2d 292 (1992).

The Supreme Court in Austin, decided in 1993, has invalidated both this court's and the Ninth Circuit's reasons for holding that the forfeiture was not a punishment. The Court pointed out that the forfeiture available to the government under 21 U.S.C. § 881(a)(7) extends to any real property, no matter how valuable, that is used to facilitate a specified drug offense. The statute and its legislative history show a Congressional intent to punish and deter; there is an exception for innocent property owners; and there is no statutory link between the amount forfeited and any compensable injury to the government. Accordingly, the Austin Court held:

In light of the historical understanding of forfeiture as punishment, the clear focus of §§ 881(a)(4) and (a)(7) on the culpability of the owner, and the evidence that Congress understood those provisions as serving to deter and to punish, we cannot conclude that forfeiture under §§ 881(a)(4) and (a)(7) serves solely a remedial purpose. We therefore conclude that forfeiture under these provisions constitutes "payment to a sovereign as punishment for some offense," Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257 at 265, 109 S.Ct. 2909 at 2915 106 L.Ed.2d 219 (1989), and, as such, is subject to the limitations of the Eighth Amendment's Excessive Fines Clause.

___ U.S. at ___, 113 S.Ct. at 2812.

Even if the value of the property forfeited happens to be the same as or less than the government's costs of prosecution, the forfeiture is still categorized as a punishment because the relationship is accidental:

The value of the conveyances and real property forfeitable under §§ 881(a)(4) and (a)(7), on the other hand, can vary so dramatically that any relationship between the Government's actual costs and the amount of the sanction is merely coincidental.

Id. at ___ n. 14, 113 S.Ct. at 2812 n. 14.

The government relies upon cases finding other civil sanctions not to be "punishments" because they were remedial under the Halper test. For example, in United States v. Newby, 11 F.3d 1143, 1145 (3rd Cir.1993), the court held that prison disciplinary sanctions were not "so grossly unrelated to prison authorities' remedial goal so as to constitute a `punishment' within the meaning of the Double Jeopardy Clause." In United States v. Tilley, 18 F.3d 295, 300 (5th Cir.1994), the court distinguished Austin on the basis that "the forfeiture of drug proceeds under § 881(a)(6) will always be ... roughly proportional to the harm inflicted upon government and society by the drug sale." (Emphasis added.) But such cases are inapplicable here. The present case involves not prison discipline or drug proceeds but residential real property forfeited under 21 U.S.C. § 881(a)(7); and Austin holds that such a forfeiture is a punishment of the claimant property-owner regardless of the value of the property taken. See United States v. Ripinsky, 20 F.3d 359, 363 n. 5 (9th Cir.1994).

While the Austin decision arose under the Excessive Fines Clause, it compels the conclusion that a § 881(a)(7) forfeiture is also a punishment under the Double Jeopardy Clause. In Dept. of Revenue v. Kurth Ranch, ___ U.S. ___, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), the Supreme Court held that a state tax imposed upon persons convicted of marijuana-growing amounted to a second punishment barred by the Double Jeopardy Clause. Kurth Ranch makes clear that the Austin analysis of what constitutes a punishment applies as well under the Double Jeopardy Clause: "A defendant convicted and punished for an offense may not have a nonremedial civil penalty imposed against him for the same offense in a separate proceeding." Id. ___ U.S. at ___, 114 S.Ct. at 1945; see also United States v. Torres, 28 F.3d 1463 (7th Cir. (Ill.1994)); State v. 1979 Cadillac Deville, 632 So.2d 1221 (La.App. 1994).

IV. SAME OFFENSE

There is no doubt that McCaslin was subjected to the forfeiture of his residential property, and then to criminal sanctions, as punishments for the same offense. To obtain forfeiture the government had to prove that the property was used "to commit, or to facilitate the commission of, a violation of this subchapter punishable by more than one year's imprisonment...." 21 U.S.C. § 881(a)(7). The offenses relied upon for the forfeiture were the same ones that appeared in the indictment. In its complaint seeking forfeiture the government alleged:

Beginning at least in or about August 1989, and continuing at least until September 26, 1989, in the State of Washington and within the Western District of Washington, the above-described defendant real property was used and has repeatedly been used to commit or facilitate the commission of felony drug offenses, to wit, the illegal manufacture and distribution of marijuana and conspiracy to commit said offenses, in violation of 21 U.S.C. § 841, et seq.,....

United States v. Real Property Identified as 21234 S.E. 21st Street, Kent, Washington, No. C89-1435R (W.D.Wash.) (Dkt. # 1, p. 2; emphasis added).

The later indictment charged McCaslin with the same offenses, omitting conspiracy: manufacturing marijuana (Count 1), possessing it with intent to distribute (Count 2), and maintaining a...