US v. Tamez

• Decision Date: 13 March 1995
• Docket Number: No. CR-89-156-AAM.,CR-89-156-AAM.
• Citation: 881 F. Supp. 460
• Parties: UNITED STATES of America, Plaintiff, v. Frank Javier TAMEZ, Defendant.
• Court: U.S. District Court — District of Washington

881 F. Supp. 460

UNITED STATES of America, Plaintiff, v. Frank Javier TAMEZ, Defendant.

No. CR-89-156-AAM.

United States District Court, E.D. Washington.

March 13, 1995.

Howard N. Schwartz, Yakima, WA, for defendant.

Pamela J. DeRusha, Asst. U.S. Atty., Spokane, WA, for plaintiff.

ORDER DENYING § 2255 MOTION

McDONALD, District Judge.

Before the court for resolution is petitioner/defendant Tamez's Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody Pursuant to 28 U.S.C. § 2255 (Ct.Rec. 113). In that motion, Tamez asserts that his criminal case and the civil forfeiture actions against his property were separate proceedings constituting multiple punishments for the same offense. Tamez argues that his criminal conviction constituted a second punishment and therefore must be vacated by this court as a violation of the double jeopardy clause of the Fifth Amendment.

After conducting the initial review of Tamez's motion set forth by law, the court determined that Tamez's motion did not conclusively show that he was not entitled to relief. For that reason, the court ordered the government to answer the § 2255 motion. The government has properly submitted its response to the defendant's motion. For the reasons set forth below, the court is denying Tamez's motion.

BACKGROUND:

Tamez was charged in an indictment on April 19, 1989, with conspiring to deliver controlled substances and maintaining a building for narcotics trafficking, in violation of 21 U.S.C. §§ 846 and 856(a)(2), respectively. On August 21, 1989, Tamez was convicted in a jury trial of count two, maintaining a building for narcotics trafficking. The court sentenced Tamez on October 20, 1989, to a term of thirty-seven (37) months imprisonment, five (5) years of supervised release, and a fine of $50,000. Defendant's term of imprisonment commenced on October 27, 1989.

Upon appeal, the Ninth Circuit remanded Tamez's case for resentencing. On October 23, 1991, defendant was resentenced to a term of thirty (30) months imprisonment, with the other conditions remaining the same.

On November 7, 1988, the government filed a forfeiture complaint pursuant to 21 U.S.C. § 881(a)(7), requesting the seizure and forfeiture of Tamez's real property, located at 505 N. 38th Street, Yakima, Washington. On May 17, 1988, the government filed other various forfeiture complaints against items of Tamez's personal property, specifically including automobiles and cash. Tamez indicates that on or about November 9, 1988, the federal government seized his real and personal property.

All of the civil forfeiture actions filed by the government were consolidated by order of the court on July 19, 1989, under cause number C-88-608-AAM. On October 27, 1989, the date on which his sentence was to commence, Tamez entered into a stipulation for a decree of forfeiture of certain items of seized property in exchange for the return of his real property along with some items of personal property. This stipulation was signed by the defendant prior to his surrender to the custody of the United States Marshal. The court entered a decree of forfeiture on C-88-608-AAM, on October 30, 1989.

Although defendant was released from confinement on December 8, 1991, he remains on supervised release and has yet to pay approximately 30% of his criminal fine.

DISCUSSION:

In United States v. $405,089.23 U.S. Currency, 33 F.3d 1210 (9th Cir.1994), the Ninth Circuit determined that a civil forfeiture and criminal action pertaining to the same offense violate the Double Jeopardy Clause if: 1) the civil forfeiture action and criminal prosecution constitute separate proceedings; 2) the civil forfeiture constitutes "punishment." Id. at 1216. It is clear, and the government effectively concedes, that these two requirements are satisfied in this case. However, the government opposes Tamez's motion on two distinct grounds. First, the government asserts that jeopardy did not attach in the civil proceedings against his property until after his criminal conviction; therefore, the forfeiture was not second, or double, jeopardy. Secondly, the government makes the somewhat more complex argument that Tamez has based his motion for federal habeas relief on a "new rule" which should only be applied prospectively.

The issues raised by defendant's § 2255 motion are a product of the Ninth Circuit's decision in United States v. $405,089.23 U.S. Currency, 33 F.3d 1210 (9th Cir.1994). As this is a relatively recent decision, there is a dearth of caselaw addressing these issues. Furthermore, there appears to be discrepancies between those few applicable cases. However, it is incumbent upon this court to enter this debate in an effort to examine and resolve any perceived inconsistency.

1. Tamez's Criminal Conviction Did Not Constitute Second Jeopardy

Defendant Tamez specifically argues that the initial "punishment," or jeopardy, in this case occurred on October 27, 1989, when he signed the stipulation of forfeiture. (Ct. Rec. 114 at 7-8). He further maintains that the second "punishment" only manifested once he began serving his court imposed prison sentence, which commenced on October 27, 1989, after the signing of the forfeiture stipulation. Basing his argument on $405,089.23, Tamez claims that the criminal conviction must be set aside as violative of the Fifth Amendment protection against double jeopardy. However, careful examination of the caselaw reveals that Tamez's analysis of the point at which jeopardy attaches in the criminal and civil forfeiture contexts is incorrect.

a. Successive Prosecutions or Multiple Punishments?

The Double Jeopardy Clause of the Fifth Amendment protects against two distinct types of abuses: successive prosecutions for the same offense and multiple punishments for the same offense. United States v. Dixon, ___ U.S. ___, ___ - ___, 113 S.Ct. 2849, 2855-56, 125 L.Ed.2d 556 (1993); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989); United States v. Saccoccia, 18 F.3d 795, 798 (9th Cir.1994); United States v. McCormick, 992 F.2d 437, 439 (2nd Cir.1993); see also United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989).

Whether the type of case presented by Tamez's factual situation, where a person is subject to both a civil forfeiture and criminal prosecution for the same offense, falls under the "successive prosecutions" or "multiple punishments" context, is of the utmost importance. The reason for this is that the point at which jeopardy attaches appears to differ according to the context involved.

For example, where a person claims to have been subjected to "successive prosecutions" for the same offense, jeopardy is considered to attach in the initial criminal jury trial once the jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 29, 98 S.Ct. 2156, 2157, 57 L.Ed.2d 24 (1978); United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 1353, 51 L.Ed.2d 642 (1977); Mannes v. Gillespie, 967 F.2d 1310, 1313 (9th Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 964, 122 L.Ed.2d 121 (1993); United States v. Jarvis, 792 F.2d 767, 769 (9th Cir.1986), cert. denied, 479 U.S. 852, 107 S.Ct. 182, 93 L.Ed.2d 116 (1986). If, on the other hand, the person protesting "successive prosecutions" for the same offense has pleaded guilty in the initial criminal proceeding, jeopardy is ordinarily deemed to attach upon the court's acceptance of the plea agreement. United States v. Smith, 912 F.2d 322, 324 (9th Cir.1990); United States v. Vaughan, 715 F.2d 1373, 1378 n. 2 (9th Cir. 1983); Fransaw v. Lynaugh, 810 F.2d 518, 523 (5th Cir.1987), cert. denied, 483 U.S. 1008, 107 S.Ct. 3237, 97 L.Ed.2d 742 (1987); United States v. Stanwood, 872 F.Supp. 791, 797-798 (D.Or.1994).

However, the analysis apparently differs when a person claims not to have been subject to "successive prosecutions" but to "multiple punishments" for the same offense. The Ninth Circuit has articulated this distinction: "Jeopardy attaches in the double punishment context when the defendant begins serving the sentence." United States v. Von Moos, 660 F.2d 748, 749 (9th Cir.1981) (emphasis added); see also, United States v. Ford, 632 F.2d 1354 (9th Cir.1980), cert. denied, 450 U.S. 934, 101 S.Ct. 1399, 67 L.Ed.2d 369 (1981), overruled on other grounds, 730 F.2d 1255, 1259 (9th Cir.1984); Stanwood, 872 F.Supp. at 798 n. 2.

Consequently, the critical question for this court to determine is whether the Ninth Circuit's decision in United States v. $405,089.23 U.S. Currency, 33 F.3d 1210 (9th Cir.1994), involving a criminal action and civil forfeiture for the same offense, falls within the "successive prosecutions" or "multiple punishments" rubric. Unfortunately, the cases surrounding $405,089.23 do not answer this question unambiguously.

In United States v. Halper, the seminal case from which $405,089.23 derived, the Supreme Court discussed the application of the Double Jeopardy Clause where a defendant had initially been convicted of criminal charges of false claims and mail fraud, and then subsequently subjected to a civil statutory penalty. United States v. Halper, 490 U.S. 435, 437-38, 109 S.Ct. 1892, 1895-96, 104 L.Ed.2d 487 (1989). The Court found that the prong of the Double Jeopardy Clause implicated under these facts was the protection against "multiple punishments for the same offense." Id. at 440, 109 S.Ct. at 1897. The Court, in this decision, provided its answer to the question as to when a civil penalty may constitute "punishment" for the purpose of the Double Jeopardy Clause. Id. at 446, 109 S.Ct. at 1900.

While Halper thus appears to define clearly the imposition of a civil forfeiture and criminal prosecution as potentially implicating the protection against "multiple punishments," the Ninth Circuit apparently arrived at the opposite...