favor if this Court finds that the issues can be decided as a matter of law. Accordingly, the Court will address the papers as cross-motions for summary judgment.
I. Summary Judgment
Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The moving party has the initial burden of demonstrating that summary judgment is proper. Adickes v. S.H. Kress and Co., 398 U.S. 144, 159, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). The burden then shifts to the nonmoving party to show that summary judgment is not appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). To make such a showing, the nonmoving party must go beyond the pleadings to designate specific facts showing that there is a genuine issue for trial. Id. However, in considering this motion, the evidence of the nonmovant is to be believed and all justifiable inferences are to be drawn in his or her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
Plaintiff contends the administrative forfeiture is void because he did not receive adequate notice. Due process requires that notice be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 314, 94 L. Ed. 865, 70 S. Ct. 652 (1950). Notice need not actually be received to meet this requirement, so long as it was reasonably calculated to notify the interested parties, considering the peculiarities of the particular case.
Here, the United States contends that it met the notice requirement of 19 U.S.C. § 1607 by sending four notices to plaintiff by mail and publishing notice for three weeks in the San Diego Daily Transcript. The published notices explained the procedures for filing a claim with Customs in order to stop the forfeiture, and stated the deadline for filing a claim.
Plaintiff, however, argues that the government did not meet due process requirements because it never sought to ascertain his current address, it did not personally serve him at MCC and he never received notice there, and he could not reasonably be expected to read the Daily Transcript, particularly because he is only marginally conversant in English. Plaintiff also contends notice was improper because the government did not send a notice to the attorney representing him in his criminal case. The court appointed counsel for plaintiff on May 4, 1993, the same date that notices were mailed.
The Court finds that the notice provided in this case was adequate, in that it was reasonably calculated, considering the circumstances, to apprise plaintiff of the forfeiture action. Although plaintiff claims that he never received notice, this in and of itself does not render the notice inadequate. See Cohen v. United States, 297 F.2d 760 (9th Cir. 1962).
The Customs Service reasonably expected that at least one of the four mailed notices would be effective. It is apparently the standard practice for the Customs Service to send notices to MCC with the appropriate booking number of the individual to whom the notice is sent. If the individual is no longer incarcerated at MCC, the notice is routinely returned as undeliverable. See Declaration of Ana Hinojosa. In this case, Customs never received a returned notice, so the agency appropriately assumed that notice had been effective.
The notice which the Customs Service sent to the address listed on plaintiff's driver's license was similarly not returned, although the other two notices were returned as undeliverable. The Customs Service therefore reasonably believed that plaintiff had received notice of the intended forfeiture. The Court also finds that the Customs Service was not required to notify plaintiff's counsel in his criminal case, because plaintiff did not have counsel until the day that the notices were sent, and because the Customs Service reasonably believed that notice to plaintiff was effective. See Sarit v. United States Drug Enforcement Administration, 987 F.2d 10 (1st Cir. 1993).
III. Validity of the Search
The government next contends that the search of the vehicle was reasonable, and the forfeiture thus cannot be void on these grounds. Although plaintiff's complaint alleges an unlawful search and seizure, plaintiff's counsel at the hearing on this motion indicated that he does not intend to pursue this claim.
In any event, the law is clear that under the border search exception, a search may be initiated without a warrant, probable cause, or even articulable suspicion. United States v. Cardona, 769 F.2d 625, 628 (9th Cir. 1985). The border search exception applies equally to persons entering or exiting the country. Id. at 628. Accordingly, the Court finds that the search was valid.
IV. Double Jeopardy
Plaintiff also argues that forfeiture of the currency seized in this case violates the Eighth Amendment prohibition against excessive penalties and the Fifth Amendment's Double Jeopardy Clause. Because a finding of double jeopardy would bar any further proceedings in this action, the Court will first address the double jeopardy issue.
The Double Jeopardy Clause protects against three distinct 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. In re Kurth Ranch, 986 F.2d 1308, 1310 (9th Cir. 1993); United States v. Halper, 490 U.S. 435, 440, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989). This case implicates the third of these protections.
The multiple-punishment prohibition applies only when the State attempts to criminally punish a defendant twice for the same offense. United States v. One Assortment of 89 Firearms, 465 U.S. 354, 104 S. Ct. 1099, 79 L. Ed. 2d 361 (1984). The clause does not bar the state from imposing both a civil and a criminal penalty upon a defendant for the same offense. Helvering v. Mitchell, 303 U.S. 391, 82 L. Ed. 917, 58 S. Ct. 630 (1938). However, where the government seeks to impose in addition to a criminal sanction a civil sanction in a separate proceeding that can only be understood as punitive, the Double Jeopardy Clause is violated. See United States v. Halper, 490 U.S. 435, 448, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989); United States v. $ 405,089.23 U.S. Currency, 33 F.3d 1210, 94 Daily Journal D.A.R. 12590 (9th Cir. 1994).
The Court therefore must determine in this case whether the civil forfeiture action at issue here constituted a separate "proceeding," and whether civil forfeiture under 31 U.S.C. § 5317(c) constitutes "punishment." See United States v. $ 405,089.23 U.S. Currency.
A. Separate Proceedings
There appears to be no dispute in this case that the forfeiture of plaintiff's currency constituted a separate proceeding from his criminal prosecution. Plaintiff pleaded guilty to one count of 18 U.S.C. § 1001 -- False Statement, and was sentenced under that provision. The civil forfeiture action was brought separately from the criminal action. Even if the government were to characterize this action as part of one, coordinated prosecution, this argument would fail. "[A] civil forfeiture action which is brought and tried separately from a criminal prosecution and is based upon the same offense constitutes a separate 'proceeding.'" United States v. $ 405,089.23 U.S. Currency, 94 D.A.R. at 12592-12593. A forfeiture case and a criminal prosecution would constitute the same proceeding "only if they were brought in the same indictment and tried at the same time." United States v. $ 405,089.23 U.S. Currency, 94 D.A.R. at 12592.
Although in this case plaintiff did not timely contest the forfeiture because he claims he never received notice of the impending proceeding, the forfeiture still constituted a "proceeding" separate from the criminal prosecution. The government's characterization of the forfeiture in this case as "administrative" does not preclude this conclusion. The Court therefore finds that the forfeiture in this case constituted a separate proceeding from the criminal conviction. The Court must now determine whether the forfeiture which occurred constituted "punishment."
B. Forfeiture as Punishment
The government forfeited the currency at issue here under 31 U.S.C. § 5317 (c), which provides in pertinent part:
(c) If a report required under Section 5316 with respect to any monetary instrument is not filed (or if filed, contains a material omission or misstatement of fact), the instrument and any interest in property, including a deposit in a financial institution, traceable to such instrument may be seized and forfeited to the United States Government . . .
The United States contends that under 31 U.S.C. § 5317(c), seizure of the res can never implicate the Double Jeopardy Clause because courts have never questioned the forfeiture of instrumentalities of a crime; such forfeitures are presumed to be remedial.
However, the United States in reaching this conclusion ignored the significant changes in the law of forfeiture as pronounced both by the Supreme Court and by the Ninth Circuit.
Just recently in United States v. $ 405,089.23 U.S. Currency, the Ninth Circuit noted that although only a decade ago the law was clear that civil forfeitures did not constitute punishment for double jeopardy purposes, the law in this area has significantly changed.
In determining whether a forfeiture was punitive for double jeopardy or Eighth Amendment purposes, the Supreme Court previously presumed that where Congress had indicated a preference that the proceeding be considered "civil" rather than "criminal," the Court would defer to that preference absent extraordinary circumstances. United States v. $ 405,089.23 U.S. Currency, 94 D.A.R. at 12593, citing United States v. Ward, 448 U.S. 242, 248, 65 L. Ed. 2d 742, 100 S. Ct. 2636 (1980). However, in United States v. Halper, the Court held that the labels attached by Congress on a particular sanction are not of "paramount importance" in determining whether a sanction constitutes punishment for double jeopardy purposes. 94 D.A.R. at 12593, quoting United States v. Halper, 490 U.S. at 447-48. Rather, the Court in Halper stated that "[a] civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term." Halper, 490 U.S. at 448. Most recently in Austin v. United States, U.S. , 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993), a challenge to a civil forfeiture under the Eighth Amendment's Excessive Penalties Clause, the Court reaffirmed that a sanction denominated as civil which is designed even in part to deter or punish will constitute punishment, regardless of whether it also has a remedial purpose. Thus the Court in Austin determined that the Excessive Fines Clause of the Eighth Amendment applies to civil forfeitures. In United States v. $ 405,089.23 U.S. Currency, the Ninth Circuit applied that reasoning to hold that where a civil forfeiture constitutes "punishment" under the Halper analysis, it also constitutes "punishment" for double jeopardy purposes.
The United States argues that Austin does not apply to this case because Austin involved forfeiture under § 881(a)(4) and (a)(7), whereas this case involves forfeiture under a different statute. The Court presumes that the government would make the same argument with respect to the Ninth Circuit's recent decision in $ 405,089.23 U.S. Currency.4 However, the fact that those cases involved an analysis of a different statute does not end this Court's inquiry. Rather, under Austin, the Court must examine the statute under which the government has brought the forfeiture action to determine whether forfeiture under the statute is intended to be punitive or wholly remedial. See $ 405,089.23, 94 D.A.R. at 12594.
Whether forfeiture under this statute is subject to the limitations of the Double Jeopardy Clause appears to be an issue of first impression in this Circuit. The Second Circuit, however, recently addressed this question in United States v. $ 145,139 U.S. Currency and $ 150 in Travellers Checks, 18 F.3d 73 (2d Cir. 1994). The government relies almost exclusively on that decision. In that case, which similarly involved the seizure of undeclared money under 31 U.S.C. § 5317(c), the Second Circuit found that neither the Double Jeopardy Clause nor the Excessive Fines Clause were implicated in forfeiture under this section, because following the traditional concept of forfeiture, the action is not against the owner of the property, but against the property itself. The undeclared money is itself the culprit. Id. at 75. The court thus reasoned that seizure of the money, which is the res, can never be excessive because it is the instrumentality by which the crime is committed. The court added that because the government spends substantial sums regulating the flow of money and other goods across the nation's borders, forfeiture in such cases "is remedial rather than punitive," and thus does not implicate the Double Jeopardy Clause.
However, the Second Circuit apparently did not consider the implications of Austin. This circuit, following Austin, has rejected an important part of the Second Circuit's analysis. Specifically, the court in $ 145,139 relied on this circuit's decision in United States v. McCaslin, 959 F.2d 786 (9th Cir.), cert. denied, 121 L. Ed. 2d 292, 113 S. Ct. 382 (1992), which had rejected a double jeopardy challenge to a forfeiture under § 881(a)(7). In McCaslin, the court found that Halper did not apply. Specifically, the court in McCaslin stated:
Halper has no application to the very ancient practice by which instrumentalities of a crime may be declared forfeit to the government. The forfeitures of such instrumentalities is "'independent of, and wholly unaffected by any criminal proceeding in personam.'"