JOHN H. MOORE, II, Chief Judge.
This cause is before the Court on Defendant's motions to dismiss the indictment on the grounds of double jeopardy (Doc. # 1364) and the expiration of the statute of limitations (Doc. # 1365) filed June 16, 1995. The United States filed responses in opposition thereto on July 17, 1995. Upon due consideration of the motions and the legal premises therein, the Court finds that the motions should be denied.
I. Background Facts
An indictment was returned against the Defendant on February 24, 1989 charging him with one count of conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846, and one count of conspiracy to import cocaine in violation of 21 U.S.C. § 963. The superseding indictment alleges a large-scale conspiracy to distribute and import cocaine by Columbia's Medellin drug cartel from 1974 to 1991. The Defendant is alleged to have participated in several overt acts in furtherance of this conspiracy in February and March of 1978. However, the Defendant became a fugitive from justice shortly after indictment until his arrest in Oregon on February 28, 1995 under the alias "Joel Watnick".
However, prior to the Defendant's indictment in this matter, the United States instituted two separate civil forfeiture actions pursuant to 21 U.S.C. § 881(a)(6)
A. Double Jeopardy
The Defendant argues that the present criminal prosecution constitutes successive punishment barred by the Double Jeopardy Clause of the Fifth Amendment. Double jeopardy protects against: 1) a second prosecution for the same offense after acquittal, 2) a second prosecution for the same offense after conviction, and 3) multiple punishments for the same offense. United States v. Halper, 490 U.S. 435, 439, 109 S.Ct. 1892,
The parties do not dispute that the present criminal prosecution is based upon the same offense underlying the two civil forfeiture actions. In these proceedings, default judgments were entered against the $3,547,670 on August 4, 1989 and against the $2,417,570 on November 16, 1989. The Defendant argues that these forfeitures constitute "punishment" within the meaning of the Double Jeopardy Clause. The issue of whether the civil forfeiture constitutes "punishment" is the subject of considerable debate since the trilogy of Supreme Court decisions in Halper, Austin v. United States, ___ U.S. ___, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), and Dep't of Revenue of Montana v. Kurth Ranch, ___ U.S. ___, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994). A reading of these decisions provide that a civil sanction which does not serve solely a remedial purpose, but also serves either a retributive or deterrent purpose, constitutes "punishment". Halper, 490 U.S. at 448, 109 S.Ct. at 1902. A civil sanction, however, may be remedial if it bears a "rational relation to the goal of compensating the government for its loss." Id.
Otherwise, the civil sanction can no longer be considered solely remedial and can only be explained as serving either a retributive or deterrent purpose and thus, is punishment. Id. "Simply put, a civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual case serves the goal of punishment." Id., at 446-50, 109 S.Ct. at 1901-02. Accordingly, determining whether the sanction imposed is remedial or criminal necessitates the assessment of the character of the sanction. Halper, 490 U.S. at 446, 109 S.Ct. at 1901. "It is the purposes actually served by the sanction in question, not the underlying nature of the proceeding giving rise to the sanction, that must be evaluated." Id., at 446 n. 7, 109 S.Ct. at 1901 n. 7.
In respect to the Eighth Amendment's Excessive Fines Clause, the Austin Court held that civil forfeiture in rem pursuant to 21 U.S.C. §§ 881(a)(4) and (a)(7) constitutes punishment. ___ U.S. at ___ - ___, 113 S.Ct. at 2811-12. The Austin Court, while assessing §§ 881(a)(4) and (a)(7) as a whole rather than focusing on the individual case,
Finally, the Supreme Court held in Kurth Ranch that a state imposed tax on confiscated and subsequently destroyed drugs constituted punishment when it is characterized by a high tax rate and deterrent purpose, conditioned on the commission of a crime, and is levied on goods that the taxpayer neither owns nor possesses when the tax is imposed. ___ U.S. at ___ - ___, 114 S.Ct. at 1947-48. The Supreme Court reasoned that although taxes are normally levies for the purpose of raising revenue, the combination of these characteristics "fairly characterize[s]" the tax as punishment. Id., at ___, 114 S.Ct. at 1948. Accordingly, a civil sanction in the form of a tax may constitute "a second punishment within the contemplation of a constitutional protection [double jeopardy] that has `deep roots in our history and jurisprudence.'" Id. (citation omitted).
The result of this Supreme Court trilogy is a deep split between the Fifth and Ninth Circuit Courts of Appeals on the methodology of addressing the issue whether civil forfeiture of drug proceeds pursuant to § 881(a)(6) is remedial or punitive and thus, punishment for double jeopardy purposes. In United States v. Tilley, 18 F.3d 295, 297 (5th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 574, 130 L.Ed.2d 490 (1994), the government filed a complaint for civil forfeiture in rem pursuant to 21 U.S.C. §§ 881(a)(6) and (a)(7). The defendants entered into a stipulated forfeiture agreement with the United States in which they agreed to forfeit various items including currency, certificates of deposit, and automobiles worth approximately $650,000. Id. Recognizing that a subsequent criminal conviction would constitute punishment, the Fifth Circuit held that the forfeiture did not constitute prior punishment, thus precluding the successive punishment, because the forfeiture of approximately $650,000 in proceeds of illegal drug sales bore a "rational relation to the costs incurred by the government and society resulting from the defendant's criminal conduct." Id. at 297-99.
Hence, the Fifth Circuit in Tilley found that the civil forfeiture of illegal drug proceeds "serves the wholly remedial purposes of reimbursing the government for the costs of detection, investigation, and prosecution of drug traffickers and reimbursing society for the costs of combatting the allure of illegal drugs, caring for the victims of the criminal trade when preventive efforts prove unsuccessful, lost productivity, etc." Id. at 299 (citations omitted). The Tilley court estimated that the illegal drug trade produces yearly revenues of approximately $80 to $100 billion while exacting $60 to $120 billion per year in costs from the government and society. Id. (citations omitted). Accordingly, Tilley reasoned that the forfeiture of approximately $650,000 in illegal drug proceeds was not excessive in comparison to the resulting governmental and societal costs because it "failed to compensate fully for the wrongs done."
The Ninth Circuit, on the other hand, has held that the Supreme Court's decision in Austin compels a finding that civil forfeiture pursuant § 881(a)(6) constitutes punishment. United States v. $405,089.23 U.S. Currency, 33 F.3d 1210, 1221 (9th Cir.1994), amended and reh'g denied, 56 F.3d 41 (1995). In $405,089.23 U.S. Currency, the United States filed a civil forfeiture complaint pursuant to 21 U.S.C. § 881(a)(6), as well as 18 U.S.C. § 981(a)(1)(A) involving money laundering, against several hundred thousand dollars worth of property including currency, silver bars, a helicopter, two boats, an airplane, and eleven automobiles. Id. at 1214. Holding that the Supreme Court's civil forfeiture analysis under the Eighth Amendment's Excessive Fines Clause in Austin is equally applicable to the Fifth Amendment's Double Jeopardy Clause,
In determining that civil forfeiture pursuant to § 881(a) is at least partly punitive, the Ninth Circuit found that Austin mandates an assessment of "the entire scope of the [forfeiture] statute which the government seeks to employ, rather than to the characteristics of the specific property the government seeks to forfeit." Id. at 1220. Accordingly, the Ninth Circuit rejected the Fifth Circuit's approach in Tilley of determining whether the particular forfeiture is rationally related to the remedial goal of compensating the United States, as well as society, for the costs expended in the war on drugs. Id. "[T]he Austin Court," the Ninth Circuit reasoned, "explicitly refused to apply such a case-by-case approach to determining whether a forfeiture constitutes `punishment.'" Id. (citing Austin, ___ U.S. at ___ n. 14, 113 S.Ct. at 2812 n. 14).
Hence, there exists a split in the circuits as to the appropriate method of determining whether civil forfeiture pursuant to § 881(a)(6) constitutes punishment within the realm of the Double Jeopardy Clause. The Fifth Circuit, utilizing Halper's rational relation test, focused on the particular civil sanction and its relationship to the remedial purpose of compensating the government and society for the costs of fighting the war on drugs. Tilley suggests that these costs are so high that the forfeiture of illegal drug proceeds pursuant to § 881(a)(6) will always be remedial. The Ninth Circuit, however, is persuaded that the Supreme Court's decision in Austin compels a statutory analysis as a whole, of the entire forfeiture provisions of § 881(a), rather than an assessment of the civil sanction in any particular case. According to $405,089.23 U.S. Currency, this analysis concludes that civil forfeiture pursuant to any subsection of § 881(a) is at least partly punitive and thus, constitutes punishment for purposes of double jeopardy analysis.
This Court is not persuaded that a civil forfeiture action pursuant to § 881(a)(6) must necessarily constitute punishment because of its alleged punitive nature. Specifically, this Court declines to adopt the Ninth
However, it is not clear to this Court that civil forfeiture of illegal drug proceeds pursuant to § 881(a)(6) must necessarily serve a punitive purpose. Rather, this Court is persuaded by the Fifth Circuit's view that Halper requires an examination of the particular case to determine whether the civil sanction bears a "rational relation to the goal of compensating the government for its loss." Halper, 490 U.S. at 448, 109 S.Ct. at 1902. The Tilley court estimated that the illegal drug trade yields approximately $80 to $100 billion per year but exacts approximately $60 to $120 billion per year in costs from the government and society. The civil forfeiture in this matter was of $5,965,240 in illegal drug proceeds, yet the Defendant is alleged to have conspired to import and distribute cocaine with Columbia's large-scale Medellin cartel.
The Court's finding that the forfeiture of illegal drug proceeds pursuant to § 881(a)(6) is remedial is supported by the case law of other circuits. See United States v. Wild, 47 F.3d 669, 674 n. 11 (4th Cir.1995) (forfeiture of illegal drug proceeds, in contrast to forfeiture of property neither constituting nor derived from proceeds of an illegal activity, is not punishment covered by the Eighth Amendment's Excessive Fines Clause), pet. for cert. filed, (U.S. May 18, 1995) (No. 94-9563); United States v. $21,282.00 in U.S. Currency, 47 F.3d 972, 973 (8th Cir.1995) (forfeiture of proceeds of criminal activity which "simply parts the owner from the fruits of the criminal activity" does not constitute punishment under the Eighth Amendment) (citation omitted); S.E.C. v. Bilzerian, 29 F.3d 689, 696 (D.C.Cir.1994) (disgorgement order is remedial and not punishment within meaning of Fifth Amendment's Double Jeopardy Clause because it did not ask defendant to give up anything in excess of the amount of his illicit gains). As one circuit has noted, "[t]he reach of the Halper decision is short." Bilzerian, 29 F.3d at 696. It is a rule for the rare case where a civil sanction is overwhelmingly disproportionate to the damages caused by the defendant. Halper, 490 U.S. at 448, 109 S.Ct. at 1902. That is truly not the case in this matter.
Nevertheless, the Court also finds that the Defendant's double jeopardy motion must fail for other reasons as well. The Eleventh Circuit has held that the simultaneous pursuit by the government of criminal and civil sanctions is a single, coordinated prosecution not barred by the Fifth Amendment's Double Jeopardy Clause. United States v. One Single Family Residence Located at 18755 North Bay Road, Miami, 13 F.3d 1493, 1499 (11th Cir.1994) (criminal prosecution instigated five months after civil forfeiture proceeding was single, coordinated
Further, the Court finds that jeopardy did not attach from the two prior civil forfeiture proceedings. Jeopardy "attaches" in a civil forfeiture proceeding "at the beginning of the hearing, when evidence is first presented to the trier of fact." United States v. Torres, 28 F.3d 1463, 1465 (7th Cir.1994) (citing Crist v. Bretz, 437 U.S. 28, 31-37, 98 S.Ct. 2156, 2159-61, 57 L.Ed.2d 24 (1978)). Jeopardy does not attach when the defendant does not make a claim and thus, does not become a party to the forfeiture. Id. Further, there is no jeopardy when there is no trial and the property sought to be forfeited is indeed forfeited without opposition. Id. In the case sub judice, there were actually two civil forfeiture proceedings. The Defendant filed a claim against the $2,417,570 but not the $3,547,670. Regardless, default judgments were entered against both sums of money because the Defendant chose to become a fugitive. Accordingly, no jeopardy attached to these proceedings because the Defendant was not at risk and "`without risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitute double jeopardy.'" Id. at 1465 (citing Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1063, 43 L.Ed.2d 265 (1975)).
The principle of double jeopardy "is `deeply ingrained in ... the Anglo-American system of jurisprudence.'" $405,089.23 U.S. Currency, 33 F.3d at 1215. In light of this constitutional prohibition, the Second Circuit Court of Appeals has noted that:
Millan, 2 F.3d at 20. Accordingly, the Court finds that the Defendant should not be able to thwart this statutory prerogative through his flight from justice. To do so, would enable any defendant to use his fugitive status as a means to implicate constitutional prohibitions. Upon indictment, a defendant need only flee and then resurface later, after civil forfeiture, to invoke the protection afforded by the constitution. Under this scenario, the constitution and the American criminal justice system would be the real casualties of the war on drugs. Common
B. Statute of Limitations
The ten count, sixty-seven page superseding indictment in this matter alleges that the Defendant conspired, in violation of 21 U.S.C. § 846 and § 963, to distribute and import cocaine as part of Columbia's large-scale Medellin drug cartel. The Defendant is alleged to have participated in several overt acts in furtherance of this conspiracy in February and March of 1978. However, since the original indictment in this matter was returned on February 24, 1989, the Defendant argues that this prosecution is barred by the applicable five year statute of limitations for conspiracy. United States v. Gornto, 792 F.2d 1028, 1033 (11th Cir.1986) (Title 18 U.S.C. § 3282 provides a five year statute of limitations for conspiracy). Although it is impossible to withdraw from a conspiracy once an overt act is committed, a withdrawal may preclude liability for substantive offenses occurring after the withdrawal. Id. (citations omitted). Accordingly, since the indictment alleges only that the Defendant participated in several overt acts in furtherance of this conspiracy in February and March of 1978, and he withdrew from the conspiracy in 1981, he argues that the present prosecution is barred.
Title 21 U.S.C. § 846 is by its very terms a conspiracy statute that does not require proof of an overt act. United States v. Shabani, ___ U.S. ___, ___, 115 S.Ct. 382, 384, 130 L.Ed.2d 225 (1994) (language of § 846 does not require that an overt act be committed to further the conspiracy and no such requirement has been inferred from congressional silence in other conspiracy statutes); United States v. Elledge, 723 F.2d 864, 866 (11th Cir.1984). Therefore, an indictment satisfies the requirements of the applicable statute of limitations if the government alleges and proves, at trial or pretrial, that the conspiracy continued into the limitations period. United States v. Butler, 792 F.2d 1528, 1532 (11th Cir.), cert. denied, 479 U.S. 933, 107 S.Ct. 407, 93 L.Ed.2d 359 (1986). The five year statute of limitations for conspiracy begins to run when the defendant effectively withdrawals from the conspiracy. Id. (citations omitted). Thus, this prosecution would be barred by the expiration of the statute of limitations if the Defendant effectively withdrew from the alleged conspiracy before February 24, 1984, five years prior to the filing of the original indictment on February 24, 1989.
Although "a conspirator's participation in a conspiracy is presumed to continue until all activity relating to the conspiracy is ceased," a defendant may demonstrate withdrawal from the conspiracy by establishing: 1) that he has taken affirmative steps to defeat the objectives of the conspiracy, and 2) that he made a reasonable effort to communicate these acts to his co-conspirators or disclosed the scheme to law enforcement authorities. United States v. Young, 39 F.3d 1561, 1571 (11th Cir.1994) (citations omitted). The mere cessation of criminal activity is not sufficient to demonstrate a withdrawal from the conspiracy. Id. (citation omitted). The determination whether a defendant's actions rise to the level of a withdrawal is appropriate for the jury. See Gornto, 792 F.2d at 1033.
The Defendant argues that he withdrew from the Medellin drug cartel conspiracy after a falling out with its other members in 1981 over financial matters. (Decl. of Def., Doc. # 1371, at 2.) The Defendant insists that he informed his co-conspirators that he was no longer interested in any further involvement in their activities and consequently, severed all ties with the Medellin drug cartel. (Decl. of Def., Doc. # 1371, at 2.) However, the Court is not persuaded by this self-serving declaration, which is not a sworn affidavit, that the Defendant has either taken affirmative steps to defeat the objectives of the conspiracy or that he made
Accordingly, the Court cannot find at this time that the Defendant withdrew from the Medellin drug cartel conspiracy before February 24, 1984. Nor is the Court persuaded by Defendant's argument that the indictment alleges multiple conspiracies rather than a single comprehensive conspiracy. The evidence before the Court at this juncture simply does not permit these findings; rather, it would be more appropriate for the jury to determine the scope and duration of the conspiracy as well as whether the Defendant withdrew from the conspiracy in 1981. United States v. Champion, 813 F.2d 1154, 1165 (11th Cir.1987) (whether evidence supports finding a single conspiracy is a question of fact for the jury); Butler, 792 F.2d at 1532 (government may prove at trial or pretrial that the alleged non-overt-act conspiracy continued into the applicable limitations period); see Gornto, 792 F.2d at 1033 (whether a defendant's actions rise to the level of a withdrawal is appropriate for the jury); United States v. Escobar-Gaviria, No. 89-29(S3)-Cr-J-16 (M.D.Fla.1989) (Doc. # 762) (motions to dismiss due to running of statute of limitations deferred until trial). Therefore, the Court finds that the Defendant's motion should be denied.
For the foregoing reasons, it is now
ORDERED AND ADJUDGED:
1. That Defendant's motion to dismiss the indictment on the grounds of double jeopardy (Doc. # 1364) is hereby DENIED.
2. That Defendant's motion to dismiss the indictment based on the expiration of the statute of limitations (Doc. # 1365) is hereby DENIED.
3. That Defendant's Motion for Leave to Reply to the Government's Memorandum in Opposition to the Motion to Dismiss on Double Jeopardy Grounds filed July 27, 1995 (Doc. # 1374) is hereby DENIED.
DONE AND ORDERED.