Civil Forfeiture

by Wayne Fricke; March 1996

As many of you know, perhaps the most fluid area of the law at this time is in the area of civil forfeitures.  The United States Supreme Court has recently decided a number of cases including Dept. of Revenue of Montana v. Kurth Ranch, ___ U.S. ___, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), and Austin v. United States, ___ U.S. ___, 113 S.Ct. 2801 (1993), which have indicated that the double jeopardy clause prevents civil forfeitures in particular cases if a criminal prosecution has already taken place.  Additionally, the Ninth Circuit has extended the rationale in these cases to criminal proceeds in the case of United States v. $405,089.23, 33 F.3d 1210 (9th Cir. 1994), as amended on denial of reh’g, 56 F.3d 41 (1995), which held that the double jeopardy clause prevents the government from forfeiting the proceeds after a defendant has been punished in a criminal case.  Additionally, Judge Dwyer of the United States District Court in Seattle has thrown out a criminal prosecution after the government forfeited some property from the defendant in that case.  In United States v. McCaselin, 863 F.Supp. 1299 (W.D. WA 1994), consistent with the Ninth Circuit's ruling, Judge Dwyer indicated that the government, in order to avoid double jeopardy prohibitions, must file the forfeiture and criminal causes in one pleading.  Judge Bryan applied similar rationale in a recent case heard before him.

        The United States government has generally attempted to file the proceedings under the same pleadings so that it would not have to worry about the potential double jeopardy clause violations in present cases. 

        However, in the State of Washington it is not so simple. In Washington, although the double jeopardy clause applies to the civil forfeiture proceedings, see State v. Clark, 124 Wn.2d 90, 875 P.2d 613 (1994), the statutory scheme requires that the forfeiture proceedings be done separately. Thus, trial judges have been reluctant to dismiss criminal cases, at least in Pierce County Superior Court, because they would de facto be ruling that the forfeiture statute is unconstitutional and the courts are unwilling to do so until the Washington appellate courts rule. Thus far there has been a split of decisions in Pierce County and King County as to whether the double jeopardy clause applies and there are currently a couple of cases pending in the Washington Supreme Court addressing this very issue. Much of what happens as it relates to civil forfeiture more than likely will turn on the case of United States v. Dixon, ___ U.S. ___, 113 S.Ct. 2849, 125 L.ED. 556 (1993).  There, the United States Supreme Court applied the “Blockburger test” in criminal double jeopardy analysis.  The Washington Supreme Court adopted Dixon and Blockburger as the appropriate test in the recent case of State v. Gocken, 127 Wn.2d 95, 896 P.2d 1267 (1995).  Again, however, Gocken involved the application of the double jeopardy analysis in the context of criminal changers.  Dixon has yet to be applied in the context of civil forfeiture.

        Importantly, the key to preserving the double jeopardy issue is to file the claim.  The Ninth Circuit, perhaps the most liberal court in this area, has recently held that the failure to file a claim results in the property being considered abandoned, hence a defendant cannot subsequently claim a double jeopardy defense.  See United States v. Cretacci, ___ F.3d ___, No. 94-10235, slip op. 9565, 9567 (9th Cir. Aug. 4, 1995).  Moreover, double jeopardy does not apply, at least in the 9th Circuit, until a final order or Declaration of Forfeiture has been entered.  See United States v. Sanchez, ___ F.3d ___, No. 94-5058 (9th Cir. Sept. 12, 1995).

        Finally, as it relates to civil forfeiture, the Washington Supreme Court has just ruled in Tellevik v. Real Property, 125 Wn. 2d 364, 884 P.2d 1319 (1994), that claimants are entitled to a hearing within 90 days of a contested forfeiture hearing at least as it relates to real property.  The only question remaining now appears to be whether the 90 day hearing applies to personal property.  Tellevik, although involving real property, did not restrict its holding indicating that the rule should apply to all property.

        Finally, a plurality of the Washington Supreme Court has ruled that the Double Jeopardy Clause does not apply to proceeds. See State v. Cole, 128 Wn.2d 262, ___ P.2d ___ (1995).  However, the issue should still be raised since the United States Supreme Court will make the ultimate determination in United States v. $405,089.23, which was accepted for review in January.