The opinion of the court was delivered by: BRAZIL
Given the holding by the Court of Appeals for the Ninth Circuit in United States v. 405,089.23 U.S. Currency (referred to hereafter as Arlt, the surname of the lead defendant), 33 F.3d 1210 (September 6, 1994), and the findings of fact made in the next section, I need address in depth only two issues to rule on defendant's motion to dismiss based on the Double Jeopardy Clause of the Fifth Amendment. These two issues are: (1) whether defendant's failure to file claims in the forfeiture actions of which he had notice forecloses application of the Double Jeopardy doctrine, and, if not, (2) whether some or all of the offenses with which defendant Pius Ailemen is charged in the Superseding Indictment (filed July 11, 1994) are the same offenses for which punishment was imposed on him through the forfeiture proceedings.
1. In 1989 a grand jury indicted Pius Ailemen on charges of conspiring to import heroin into the United States, conspiring to possess with intent to distribute heroin, distributing heroin, procuring interstate travel in furtherance of a business enterprise to unlawfully import and distribute heroin, making false statements to the INS, and making false statements in an application for a passport. Superseding Indictment in CR 89-0585 WHO, filed Nov. 30, 1989.
2. On October 5, 1989, federal agents seized $ 12,012 in currency and one cellular telephone from Pius Ailemen (aka Muhammed Musiliu Popoola). The seizure and subsequent forfeiture action were based on the allegation that the currency and phone had been "used or acquired as a result of a drug-related offense." Exhibits 1 and 2 in Support of Defendant's Motion to Dismiss, Feb. 7, 1995 (emphasis in original).
3. On October 12, 1989, agents seized an additional $ 15,000 in currency from Pius Ailemen, again on the ground that this money had been used in or acquired through illegal drug trafficking. Id., Ex. 3.
4. In December of 1989, Pius Ailemen, through counsel, filed formal notices of claims of ownership in the $ 12,012 and in the $ 15,000. Id.
5. Though the details of the remainder of the forfeiture process in 1989 and 1990 are not clear (e.g., it is not clear whether Pius Ailemen took all the steps necessary to compel the government to file a complaint for forfeiture in the district court, or whether, if such a complaint was filed, whether he formally answered it or presented evidence to try to defeat the forfeiture action), it appears that the property identified in paragraphs 2 and 3, above, eventually was forfeited to the United States. Uncontested averments in defense counsel's Memorandum in Support of Pius Ailemen's Motion to Dismiss, Feb. 7, 1995, at 2.
6. After a trial in 1990, a jury acquitted Pius Ailemen of the drug charges in the superseding indictment, but convicted him of passport fraud. Court file in CR 89-0585 SC, Docket Numbers 96, 108, and 113. See also Ex. 12 in Support of Ailemen's Motion to Dismiss, filed February 7, 1995, and Affidavit of Special Agent Robert J. Silano in Support of Application to Extend Authorization for Wiretap, filed November 10, 1993, at pages 13-14.
7. Despite the 1989-90 prosecution, the government believed that Pius Ailemen's "heroin trafficking organization [remained] intact" and that after he was released from custody he resumed his activities running a major drug trafficking organization. Affidavit of Special Agent Robert J. Silano in Support of Application for authorization to intercept wire communications (a wiretap), filed July 29, 1993, at pp. 8-9. It is not clear how aggressive the monitoring and investigation of Ailemen's activities were until the latter part of 1992.
8. By no later than October of 1992 agents of the DEA, working undercover and with the help of a confidential informant, were actively developing evidence of Ailemen's alleged drug trafficking operations. Id., at 9 and 10.
9. On July 29, 1993, the government formally applied for authorization to establish a wiretap for use in this investigation. Id. In the Affidavit of Special Agent Robert J. Silano filed in support of the wiretap application the government alleged that it had probable cause to believe that Pius Ailemen and others, including Sidney Gladney and Robert Tinney, "have committed, are committing, and will continue to commit the following offenses: importing a controlled substance in violation of Title 18, United States Code, Section 545 and Title 21, United States Code, Sections 952 and 960; distributing and possessing with intent to distribute a controlled substance in violation of Title 21, United States Code, Section 841(a)(1); conspiracy to import and conspiracy to distribute controlled substances in violation of Title 21, United States Code, Sections 963 and 846; use of a communication facility to commit or facilitate the commission of the foregoing offenses in violation of Title 21, United States Code, Section 843(b); and violations of Title 18, United States Code, Section 1952, involving travel in interstate or foreign commerce to promote, manage, establish or carry on an unlawful activity, to wit, a narcotics trafficking enterprise." Id., at 3.
The government also claimed in this affidavit that it had probable cause to believe that the conversations to be intercepted would concern the methods and means by which Ailemen and others managed and carried out "their heroin and cocaine operation." Id., at 4. A confidential informant whom the government perceived as reliable provided information beginning as early as October of 1992 that indicated that Ailemen and others were heavily involved "in cocaine and white heroin trafficking organizations". Id., at 9. And an undercover agent allegedly had extensive conversations with Ailemen related to plans to import cocaine from Mexico and to exchange Ailemen's heroin for cocaine from a Columbian source. Id., at 11, 15, 25-27, 29-33, 35, 39, 45.
10. On July 29, 1993, District Judge D. Lowell Jensen signed an order "Authorizing Interception of Wire Communications". CR-93-320 MISC. Based on a series of affidavits from DEA agents and a submission by counsel for the government, Judge Jensen extended this wiretap authorization four times, so DEA agents were permitted to monitor a very large number of Pius Ailemen's conversations over a period running well into December of 1993.
11. On August 30, 1993, Special Agent William de Freitas executed and submitted to Judge Jensen an affidavit in support of a request to extend the wiretap authorization. In that affidavit, Agent de Freitas affirmed his belief that the evidence thus far generated by the government established probable cause to believe that Pius Ailemen and others had been and continued to be involved in, among other things, a "conspiracy to import and conspiracy to distribute controlled substances," "offenses involving the laundering of monetary instruments representing the proceeds of unlawful activity and those involving monetary transactions in criminally derived property, in violation of Title 18, United States Code, Sections 1956 and 1957," and "travel in interstate or foreign commerce to promote, manage, establish, or carry on an unlawful activity, to wit, a narcotics trafficking enterprise, in violation of Title 18, United States Code, Section 1952." de Freitas Affidavit of August 30, 1993, at 7-8.
This affidavit proceeded to set forth evidence that Pius Ailemen and his agents were trying to orchestrate transactions not only in heroin, but also in large quantities of cocaine, were trying to launder proceeds of drug deals, and that Pius Ailemen was the principal manager/leader of an ongoing drug trafficking enterprise that involved at least six other people. See, e.g., pages 12, 20 and 23.
13. On October 1, 1993, Special Agent Robert J. Silano executed and presented to Judge Jensen another affidavit in support of another request to extend the wiretap authorization. In this affidavit Agent Silano again swore that the government had probable cause to believe that Pius Ailemen was involved in systematic, large scale drug trafficking operations that involved use of telephones, interstate and international travel, and money laundering. See, e.g., note 1 on page 15, which states: "On September 4, 1993, from approximately 12:00 noon to 6:00 p.m., undercover agents who posed as narcotics traffickers met with Ellis Quarshie. Quarshie told them about Ailemen's method of importing heroin, transporting heroin domestically, purchasing cocaine and transporting it to Europe and Canada, and laundering money domestically and internationally."
This affidavit also portrays Pius Ailemen as the leader of the alleged organization. See, e.g., page 11, where Agent Silano affirms that conversations intercepted under earlier issued orders "show the extent to which Ailemen issues directives to member of his organization." See also page 20, where one of the traffickers alleged states specifically that Pius is his boss. This affidavit further recites considerable evidence that Ailemen was conspiring to traffic not only in heroin but also in cocaine (see, e.g., pages 11, 12, 15-16, 18-20, and 26) and that he was deeply involved in multiple money-laundering maneuvers (see, e.g., pages 21 - 25, 27-30).
14. Special Agents of the DEA executed additional affidavits to support requests to extend the wiretap authorization on November 8, November 10, and December 9, 1993. In the Extension Application filed on November 9, 1993, Assistant United States Attorney Theresa J. Canepa affirmed that she had discussed the DEA investigation and evidence with the lead Special Agents (Silano and De Freitas), reviewed Agent Silano's Affidavit of November 8, 1993, and concluded, based thereon, that the government had probable cause to believe that Pius Ailemen and others had unlawfully imported a controlled substance, distributed a controlled substance, conspired to import and to distribute controlled substances, used communication facilities to facilitate drug trafficking offense, laundered monetary instruments, and travelled "in interstate or foreign commerce to promote, manage, establish, or carry on . . . a narcotics trafficking enterprise." Canepa Affidavit of November 8, 1993, at 4-5.
15. On December 14, 1993, after they allegedly heard screams from his room at the Stouffer Mayflower Hotel in Washington, D.C., federal agents determined that Pius Ailemen had been stabbed, apparently by persons sent to perpetrate a "drug rip off" from him. Affidavit of Special Agent Amie Stanton, December 20, 1993, filed in support of the criminal complaints filed that day, at page 69.
16. On December 14, 1993, a search was made, pursuant to a warrant, of Pius Ailemen's room in the Stouffer Mayflower Hotel in Washington, D.C. The government has never suggested that anyone other than Pius Ailemen was registered as an occupant of this room. The search of Ailemen's room yielded, among other things, $ 1,000 in U.S. currency, which agents of the government promptly seized. Exhibits 4 and 12 to Pius Ailemen's Motion to Dismiss, filed February 7, 1995.
17. On December 15, 1993, federal agents searched Pius Ailemen's apartment at 565 Bellevue Avenue in Oakland, California. In that search the agents found $ 2,500 in U.S. currency in a suit in the master bedroom and another $ 2,400 in a suit in the "master closet". Ex. 13 to Pius Ailemen's Motion to Dismiss, February 7, 1995. The agents immediately seized these funds. Ex. 5 to same Motion.
19. Pius Ailemen was arrested on the charges reflected in the December 20, 1993 complaint and has been in custody under a detention order for well over a year.
20. On January 3, 1994, the government filed the first indictment in this case (CR 94 0003 VRW). That indictment charged Pius Ailemen with (1) conspiring, over a period beginning no later than April of 1992 and continuing through December 18, 1993 to distribute more than one kilogram of heroin, in violation of 21 U.S.C. sec. 841(a)(1); (2) distributing heroin on December 12, 1992, in violation of that same statutory provision; (3) distributing heroin on February 11, 1993, in violation of the same statute; (4) distributing heroin on August 11, 1993, in violation of the same statute; (5) travelling in interstate commerce on December 13, 1993, with the intent to promote and carry on a business enterprise involving narcotics, in violation of 18 U.S.C. sec. 1952(a)(3); (6) using a telephone (with Sidney Gladney) on August 1, August 26, September 16, September 17, and December 1, 1993, to facilitate trafficking in heroin, in violation of 21 U.S.C. sec. 843(b); (7) using a telephone (with Kingsley Amaechi Ofomata on August 4, September 3, September 25, October 15, November 10 and December 10, 1993, to facilitate trafficking in heroin, in violation of 21 U.S.C. sec. 843(b); (8) using a telephone (with Nathaniel Theukwu) on August 11, 12 (twice), and 25, 1993, and on October 14, 1993, and on November 18, 19, and 24, 1993, and on December 3 and 10, 1993, to facilitate trafficking in heroin, in violation of 21 U.S.C. sec. 843(b); (9) using a telephone (with Ellis Quarshie) on September 4, October 15, November 20 and November 22, 1993, to facilitate trafficking in heroin, in violation of 21 US.C. sec. 843(b); (10) using a telephone (with Dele Ailemen) on September 7, 8 (twice), 9 (twice), 13, 16, and 17, 1993, to facilitate trafficking in heroin, in violation of 21 U.S.C. sec. 843(b); (11) using a telephone (with Robert Tinney) on September 7, October 8, October 11, October 19, December 6 and December 13, 1993, to facilitate trafficking in heroin, in violation of 21 U.S.C. sec. 843(b); (12) using a telephone (with Victor Onuaguluchi) on October 2 and November 22 (twice), 1993, to facilitate trafficking in heroin, in violation of 21 U.S.C. sec. 843(b); (13) using a telephone (with Keesha Duncan) on October 10 (twice), October 15, and November 24, 1993, to facilitate trafficking in heroin, in violation of 21 U.S.C. sec. 843(b); and (14) using a telephone (with Joycelyn Diane Lane) on November 29 and November 30 (twice), 1993, and on December 3, 1993, to facilitate trafficking in heroin, in violation of 21 U.S.C. sec. 843(b).
As part of the conspiracy count, the government further charged that Pius Ailemen "would and did organize, supervise, manage and arrange for the distribution of heroin by coconspirators" and "would and did oversee, direct and assume responsibility for obtaining quantities of heroin from other coconspirators." January 3, 1994 Indictment, at p. 3. In addition, the government charged that as part of the drug trafficking conspiracy Pius Ailemen and others "would and did possess and transport large sums of cash, derived from the distribution of heroin." Id. Further, the indictment charged that it was part of the conspiracy for Pius Ailemen and others to "conduct financial transactions in cash in order to conceal their trafficking in narcotics". Id.
22. On March 16, 1994, the government addressed a "Notice of Seizure" of the $ 1,000 to Pius Ailemen c/o the Pleasanton Federal Detention Center in Dublin, CA. Id. In that Notice, Ailemen was told, among other things, that he was required to file any claim of ownership "within twenty (20) days of the first date of publication of the notice of seizure in the edition of the USA Today newspaper referenced above." (emphasis in original). Inexplicably, there is no reference in the "Notice of Seizure" to any edition of the "USA Today newspaper", or any other newspaper. The Notice does identify the "DATE OF FIRST PUBLICATION", but that date is January 26, 1994 - some 47 days before the date this Notice was mailed. Thus it remains something of a mystery as to how Ailemen could have been expected to comply with the requirement of filing a claim within 20 days of the first date of publication. The significance of that impossibility is not clear, however, because in larger type and at a different place on the same Notice the government informs the recipient that he has "20 DAYS FROM RECEIPT OF THIS NOTICE TO FILE A CLAIM WITH THIS OFFICE."
On this same "Notice of Seizure" the government identified only one "OWNER" of the seized $ 1,000: "Ailemen, Pius". The government also reported on this Notice that this money was "SEIZED FROM: AILEMEN, PIUS." At the hearing on this motion, defense counsel asserted, without contradiction by the government, that the only person to whom the government sent this Notice of Seizure was defendant Pius Ailemen. That fact is of some import, given the statement by the government a few months later in its DECLARATION OF FORFEITURE that "Notice of the seizure has been sent to all known parties who may have a legal or possessory interest in the property." It also is significant that in this DECLARATION the government again stated that it had seized this money from Pius Ailemen and again identified only him as its owner. This DECLARATION also is in Ex. 4 of the Exhibits in Support of Defendant Pius Ailemen's Motion to Dismiss, filed February 7, 1995.
23. While Pius Ailemen decided, on advice of counsel, not to file a claim to this $ 1,000 in the administrative proceeding, he now asserts that the $ 1,000 was his. The only "evidence" to which the government has pointed that tends in any way to cast any doubt on this assertion is a statement attributed to one of the persons who allegedly assaulted Ailemen in his hotel room: when first apprehended, that person (Douglas Fullard) allegedly stated that "the fight [with Ailemen] concerned the 'messing up of my money.'" Affidavit in Support of a Superior Court Search Warrant, executed by David N. Hayes, Detective, December 14, 1993, Ex. 12 of the Exhibits in Support of Defendant Pius Ailemen's Motion to Dismiss, filed Feb. 7, 1995. This "evidence" lends virtually no support to the suggestion that the $ 1,000 was not Ailemen's. The government's own theory of the altercation in Ailemen's room is that it was a drug "rip-off", meaning an effort by one set of dealers to forcibly take drugs from another dealer. Affidavit of Special Agent Amie Stanton, December 20, 1993, filed in support of the Complaint in this matter, filed the same day. Moreover, there is little reason to believe that Fullard was referring to this relatively small amount of money in Ailemen's room when he spoke of the "messing up of my money." It hardly seems likely that Fullard and his companion would have attempted to murder Mr. Ailemen over $ 1,000 - and then left that money in his room. It is much more likely that if there was any truth at all in the assertion that the assault was about messing with his money, the amount was a lot bigger and had nothing to do with the $ 1,000 in Ailemen's room. It also is noteworthy that the government never sent a Notice of Seizure to Mr. Fullard - and never identified Mr. Fullard as having any possible claim to those funds.
24. The "Notice of Seizure" formally advised Pius Ailemen that the $ 1,000 "was seized by Special Agents of the Drug Enforcement Administration (DEA) for forfeiture under Title 21, United States Code (U.S.C.), Section 881, used or acquired as a result of a drug-related offense. (See Title 21, Code of Federal Regulations (C.F.R.), Section 1.316.91(d) (54 Federal Register 37610-37611) for the definition of the term 'drug-related offense.')" (emphasis in original).
25. The "Notice of Seizure" further advised Pius Ailemen that he had twenty days from March 16, 1994, to file a claim to the property or to file a notice ...