among the Overt Acts charged in the original Indictment as part of the conspiracy count, the government alleged that Pius and Dele Ailemen engaged in three apparently different telephone conversations on September 13, 1993. Moreover, the Affidavit of Special Agent Amie Stanton (December 20, 1993) that was filed in support of the Complaint that initiated this prosecution specifically describes four different telephone conversations between Pius and Dele Ailemen on September 13, 1993, one of which occurred at 7:24 p.m. and apparently related to the alleged drug trafficking. Thus it appears that the government had sufficient information about the 7:24 phone call to charge it in the original indictment.
38. The Superseding Indictment includes one other charge against Pius Ailemen that was not separately presented in the original Indictment. In Count Forty-one of the Superseding Indictment the government contends that between about September 7 and about September 18, 1993, Pius and Dele Ailemen, along with others not named, conspired to launder monetary instruments in violation of 18 U.S.C. sec. 1956(a)(2(A). Some of the eight Overt Acts alleged in the Superseding Indictment to have been committed in furtherance of this conspiracy were pled, some with less specificity, in the original Indictment as having been committed in furtherance of the conspiracy to distribute heroin that was charged as Count One of that earlier pleading. Two of the Overt Acts alleged in Count Forty-One do not appear to have been pled in the original Indictment: Overt Act number 4 alleges that Pius Ailemen took possession of $ 6,000 through an American Express Money Transfer check on September 10, 1993, and Overt Act 7 alleges that Pius Ailemen took receipt of five separate Western Union wire transfers totaling $ 5,000 on September 9, 1993.
RECOMMENDED CONCLUSIONS OF LAW
IMPLICATIONS OF AILEMEN'S FAILURE TO MAKE A CLAIM IN THE ADMINISTRATIVE FORFEITURE PROCESS
The Double Jeopardy Clause of the Fifth Amendment offers protection against both multiple prosecutions and multiple punishments (through separate proceedings) for the same offense. United States v. Halper, 490 U.S. 435, 440, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989). After United States v. $ 405,089.23 U.S. Currency, 33 F.3d 1210 (9th Cir. 1994) (cited hereafter as Arlt), it is clear that in the Ninth Circuit civil forfeiture proceedings of the kind instituted here and criminal prosecutions constitute "separate" proceedings for purposes of Double Jeopardy analysis - and that a civil forfeiture that causes a person to lose his property "as a result of a drug-related offense"
imposes "punishment" that can trigger the protections of the Double Jeopardy clause. See Quinones-Ruiz v. United States, 864 F. Supp. 983, 986 (S.D. Cal. 1994); United States v. Alejandro Sanchez Cobarruvias, 94-0732 IEG, 1994 U.S. Dist. LEXIS 20418 (S.D. Cal. October 13, 1994); United States v. Palma-Cheque, CR 94-0345 GT (S.D. Cal. Jan. 6, 1995); United States v. Aguilar, 886 F. Supp. 740 (E.D. WA 1994); United States v. Heitzman, 886 F. Supp. 737 (E.D. WA 1994); United States v. Plunk, 1994 U.S. Dist. LEXIS 20397, A94-036 CR (JWS) (D.Alaska Nov. 17, 1994).
The first of the difficult issues presented by defendant Pius Ailemen's motion arises because he decided not to file a claim to either the $ 1,000 that was seized from his hotel room or the $ 4,900 that was seized from the pockets of his pants in his apartment.
The government contends that that failure is fatal to Ailemen's Double Jeopardy challenge. In support of its position, the government appears to rely primarily on three arguments: (1) by voluntarily deciding not to become a party to the forfeiture action, Ailemen decided not to put himself in jeopardy in that proceeding, and since he was never in jeopardy in that proceeding (jeopardy never attached), it is impossible for the current criminal prosecution to expose him to "double" jeopardy, relying on United States v. Torres, 28 F.3d 1463 (7th Cir. 1994); (2) by voluntarily deciding not to make a claim in the forfeiture proceeding, Ailemen waived (a) his right to assert later (here) that he was the owner of the seized property, and (b) his right to complain about the loss of the property, and (c) any right under the Double Jeopardy clause that would arise only because of the forfeiture proceeding; and (3) by deciding not to make a claim to the property in the forfeiture proceeding, Ailemen has made it impossible to determine reliably who actually owned the subject property - so its forfeiture cannot be considered punishment of him.
Counsel for Ailemen contends that Torres is distinguishable in a critical way from the case at bar - pointing out that in that case the Seventh Circuit panel said it had "no reason to believe that [Torres] owned or had any interest in the money. Even in the criminal proceeding, he has not said that he was the funds' owner. . . . If Torres lacked an interest in the cash, its forfeiture did not impose any penalty on him . . . . A non-'penalty' imposed in a civil proceeding does not amount to 'jeopardy of life or limb' within the meaning of the fifth amendment." Id., at 1465-66.
As the Findings of Fact, above, show, the case at bar is quite different from Torres in this respect. Ailemen does claim in these criminal proceedings that he was the owner of the cash that the government seized and forfeited. More significantly, the court has found, on very persuasive evidence, that Ailemen was in fact the owner of that money. Thus Ailemen, unlike Torres, clearly had an interest in the property - and its forfeiture to the government, "as a result of a drug-related offense," clearly imposed punishment on him. It follows that to the extent that the holding in Torres turned on the fact that the Court of Appeals "had no reason to believe that [the defendant] owned or had any interest in the money," that case has no analytical value in the case at bar.
It is not clear, however, that the outcome in Torres turned on this question of fact. In the paragraph preceding the discussion of ownership, the Seventh Circuit panel appears to present a basis for disposing of the double jeopardy claim that does not depend on whether, as a matter of historical fact, defendant had an interest in the seized property. In this earlier paragraph the Torres court adopts a formalistic approach, reasoning that because the defendant did not become a party to the civil proceeding, jeopardy never attached there, and that since there was no former jeopardy, there could be no double jeopardy. Id., at 1465.
On closer examination, however, the apparent logical tidiness of this analysis loses its persuasive power. The fact that this reasoning reflects an elevation of form over substance is exposed before the paragraph is completed - in the lines through which the court tries to bolster its argument. Immediately after announcing that "You can't have double jeopardy without a former jeopardy," citing Serfass v. United States, 420 U.S. 377, 43 L. Ed. 2d 265, 95 S. Ct. 1055 (1975), the Torres panel proceeded to declare that
as a non-party, Torres was not at risk in the forfeiture proceeding, and 'without risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy. Id. at 391-92, 95 S. Ct. at 1064. Torres was no more 'in jeopardy' in a forfeiture proceeding in which he was not a party than he would have been in a separate trial of [his co-defendant] . . . ." (emphasis added). Torres at 1465.