US v. One Parcel of Real Property

• Decision Date: 05 December 1995
• Docket Number: Civ. A. No. 93-0511ML.
• Citation: 908 F. Supp. 1070
• Parties: UNITED STATES of America v. ONE PARCEL OF REAL PROPERTY WITH BUILDINGS, APPURTENANCES, AND IMPROVEMENTS, Known As 154 Manley Road, Located In The Town of Burrillville, Rhode Island.
• Court: U.S. District Court — District of Rhode Island

908 F. Supp. 1070

UNITED STATES of America v. ONE PARCEL OF REAL PROPERTY WITH BUILDINGS, APPURTENANCES, AND IMPROVEMENTS, Known As 154 Manley Road, Located In The Town of Burrillville, Rhode Island.

Civ. A. No. 93-0511ML.

United States District Court, D. Rhode Island.

December 5, 1995.

Sheldon Whitehouse, Michael P. Iannotti, Office of the United States Attorney, Providence, RI, for Plaintiff.

Ernest J. Barone, North Providence, RI, for Defendant.

MEMORANDUM AND ORDER

LISI, District Judge.

This matter calls into question the constitutional boundaries on the government's authority to pursue civil forfeiture of an individual's property after having criminally prosecuted him, when both actions arise out of the same set of facts. The claimant contends that the government's pursuit of a civil forfeiture action, after it had already obtained a criminal conviction, is violative of the Double Jeopardy Clause of the Fifth Amendment. The claimant also contends that, even if the civil forfeiture action is not barred by the Double Jeopardy Clause, the forfeiture of his family residence violates the Excessive Fines Clause of the Eighth Amendment. The following facts and procedural history are garnered either from the court file or from the one-day bench trial heard before this court.

On September 13, 1993, a criminal complaint was filed against George Zapata (Zapata), the owner of property located at 154 Manley Road in Burrillville. On September 17, 1993, the real property was seized by Drug Enforcement Agents pursuant to the execution of a federal seizure warrant issued upon a finding of probable cause that the real property was used to facilitate violations under 21 U.S.C. § 841(a)(1) and was therefore subject to seizure and forfeiture pursuant to 21 U.S.C. § 881(a)(7). On the same day that the property was seized a complaint for civil forfeiture was filed. On October 8¹, 1993, a federal grand jury returned an indictment against Zapata charging him with distribution of cocaine and possession of cocaine with the intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). On November 23, 1993, Zapata pled guilty to both counts of the indictment. On January 27, 1994, Zapata was sentenced to a twenty-four month prison term. Based upon the criminal conviction the government moved for summary judgment on the civil forfeiture action on March 25, 1994. In response, Zapata filed an objection to the government's motion and his own motion for summary judgment. Both of the motions for summary judgment were subsequently denied.

At trial the parties stipulated that, as a result of another district judge's findings at Zapata's sentencing hearing, Zapata made three separate sales of narcotics to Kevin McCutcheon. The parties have not agreed concerning how many of the sales transpired at the subject property; the government contends that all three sales took place at the subject property while Zapata claims that only one sale occurred at his property.

The government did not present any witnesses at trial. Its evidence consisted of the above-mentioned stipulation and four documentary exhibits: (1) an affidavit from a Drug Enforcement Agency Task Force agent dated September 13, 1993, supporting the criminal complaint against Zapata; (2) another affidavit from the same agent dated September 17, 1993, submitted in support of the application to seize the real property; (3) the transcript of the sentencing hearing in the criminal matter; and, (4) the judgment and commitment order in that same case.

Zapata presented one witness at trial, his wife Laura. Mrs. Zapata testified that she married her husband in September of 1989. She testified that she resides at the property with her husband, their two children, and Zapata's son by a previous marriage. Mrs. Zapata stated that her only source of income is a monthly stipend from a government assistance program. She stated that the only other asset that she and her husband own is a 1985 automobile. She averred that they do not have any checking or savings accounts. In addition to Mrs. Zapata's testimony, the claimant presented three appraisals of the property. The appraised values are $101,000, $99,000, and $82,500. Zapata also presented the warranty deed to the property dated March 24, 1983. Zapata is the sole owner of the property. The parties have stipulated that the amount of outstanding liens on the property is approximately $25,000.

At the sentencing hearing McCutcheon testified that he went to 154 Manley Road on three separate occasions and purchased one ounce of cocaine each time he "visited" Zapata. Zapata testified that he only sold one ounce of cocaine to McCutcheon on one occasion. During his testimony, Zapata did, however, admit that he had three ounces of cocaine stored in his backyard. The sentencing judge found McCutcheon to be the more credible witness and rejected Zapata's conflicting testimony. The sentencing court found that on two prior occasions Zapata sold two ounces of cocaine to McCutcheon. Based upon the findings of the sentencing judge, the application of the dictates of res judicata, and a fair reading of the sentencing hearing transcript, this court concludes that Zapata sold three ounces of cocaine from 154 Manley Road to McCutcheon. See Gonzalez v. Banco Central Corp., 27 F.3d 751 (1st Cir.1994) (outlining the elements of res judicata); Gebhart v. Hunter, 184 F.2d 644, 645 (10 Cir.1950).

Zapata raises two arguments challenging the civil forfeiture proceeding. First, Zapata argues that since he has already been placed in jeopardy as a result of the criminal proceeding the subsequent civil forfeiture proceeding is barred by the Double Jeopardy Clause. Zapata bases his double jeopardy argument on United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989); Austin v. United States, ___ U.S. ___, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993); and Department of Revenue of Montana v. Kurth Ranch, ___ U.S. ___, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994). Zapata also claims that, even if the civil forfeiture proceeding is not barred by the Double Jeopardy Clause, the civil forfeiture of his home, valued at between $82,000 and $101,000, is excessive under the circumstances and consequently violates the Excessive Fines Clause of the Eighth Amendment.

I. Double Jeopardy & Civil Forfeiture Introduction and Review of Applicable Case Law

The Double Jeopardy Clause of the Fifth Amendment "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). The Double Jeopardy Clause protects a defendant against three distinct governmental abuses: 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. Halper, 490 U.S. at 440, 109 S.Ct. at 1897. In the context of multiple punishments, the double jeopardy bar applies if the two offenses for which the defendant is tried or punished violate the "same elements" test. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The same elements test focuses on "whether each offense contains an element not contained in the other; if not, they are the `same offense' and double jeopardy bars additional punishment and successive prosecution." United States v. Dixon, ___ U.S. ___, ___, 113 S.Ct. 2849, 2856, 125 L.Ed.2d 556 (1993). The Clause is not limited to "life or limb" sanctions; the Clause also applies to imprisonment and monetary penalties. See e.g., Halper, 490 U.S. 435, 109 S.Ct. 1892 (1989). The protections of the Clause cannot be invoked until the defendant has been first placed in jeopardy. Crist v. Bretz, 437 U.S. 28, 32-33, 98 S.Ct. 2156, 2159-60, 57 L.Ed.2d 24 (1978). Once the protections of the Clause have been invoked "it is only the second proceeding that is constitutionally endangered, for the Clause's basic design is `to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.'" United States v. Pierce, 60 F.3d 886, 889 (1st Cir.1995), petition for cert. filed, ___ U.S.L.W. ___ (U.S. Oct. 19, 1995) (No. 95-6474) (quoting Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957)). Multiple punishments are permissible if imposed in the same proceeding, however multiple punishments are barred if they are imposed in separate proceedings. See Halper, 490 U.S. at 450-51, 109 S.Ct. at 1902-03; Missouri v. Hunter, 459 U.S. 359, 369, 103 S.Ct. 673, 679-80, 74 L.Ed.2d 535 (1983); United States v. Ramirez-Burgos, 44 F.3d 17 (1st Cir. 1995).

In order to determine whether the government's actions violate the Double Jeopardy Clause, this court must consider two distinct queries: (1) whether civil forfeiture commenced under 21 U.S.C. 881 § (a)(7) constitutes punishment, and, (2) whether the civil forfeiture action and Zapata's criminal prosecution constitute separate proceedings. See Kurth Ranch, ___ U.S. ___, 114 S.Ct. 1937 (1994); Halper, 490 U.S. 435, 109 S.Ct. 1892 (1989). If the answer to both of these questions is yes, the government has impermissibly placed Zapata twice in jeopardy.²

In order to place the claimant's argument in proper perspective, an outline of the United States Supreme Court precedent upon which he relies is necessary. This court's analysis of those cases will be supplemented by the pertinent case law from this circuit. The applicable cases will be presented in chronological order in an effort to synthesize from those holdings the law controlling the instant case.

In Halper, the United States Supreme Court faced the query of whether a civil sanction could constitute punishment for purposes of double jeopardy analysis. Halper, 490 U.S. at 443, 109 S.Ct. at 1898. In Halper, a manager of a company which provided medical services was convicted of submitting false Medicare...