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June 20, 1995

JULIO RAMOS-OSEGUERA, et al., Defendants.

The opinion of the court was delivered by: D. LOWELL JENSEN

 At a hearing held June 1, 1995, the Court denied defendants Julio Ramos-Oseguera, Roberto Ramirez, and Samuel Robles-Lopez' motions to dismiss the Superseding Indictment on the grounds of double jeopardy. That same day, defendants filed notices of appeal of the Court's Order. Julio Ramos-Oseguera contended that the Court's denial of his double jeopardy motion was immediately appealable and served to divest the Court of jurisdiction over the case.

 At a hearing held June 2, 1995, the Court addressed the question whether defendants' filing of notices of appeal divested the Court of jurisdiction over the case. The Court held that defendants' claims were frivolous and that the Court retained jurisdiction over the case.

 This Order memorializes the Court's oral rulings.


 Defendants Julio Cesar Ramos-Oseguera, Sotero Ramos-Oseguera, Roberto Ramirez, and Samuel Robles-Lopez are charged in a sixty-six count Superseding Indictment which, inter alia, alleges that each defendant participated in a conspiracy to distribute heroin (21 U.S.C. § 846) and that each defendant violated the substantive offense of distribution of heroin (21 U.S.C. § 841(a)(1)). Defendant Julio Cesar Ramos-Oseguera is individually charged with engaging in a continuing criminal enterprise (21 U.S.C. § 848). Each of the defendants, except Roberto Ramirez, is charged with unlawful possession of a firearm while being an illegal alien (18 U.S.C. § 922(g)(5)) and using a firearm during a drug trafficking crime (18 U.S.C. § 924(c)). The original indictment was filed on June 24, 1993. A superseding indictment was filed on February 9, 1995. *fn1"

 A. Julio Ramos' Motion to Dismiss

 The issue presented by this motion is whether this criminal prosecution against Julio Ramos is barred by double jeopardy, as a result of a forfeiture proceeding in which the United States forfeited a telephone as property of Maria Reyes after notices to both Reyes and Julio Ramos were uncontested. The Court answers in the negative.

 1. Factual Background

 On or about June 17, 1993, federal agents seized a Fujitsu cellular telephone with charger and battery at 3737 Palos Verdes in San Francisco contemporaneously with the arrest of Maria Reyes at that location. The property was seized by DEA agents on the grounds that it was used or acquired as a result of a drug-related offense. Notices of seizure were sent to Julio Ramos and Maria Reyes. Neither Julio Ramos, Maria Reyes, nor any other person filed a claim for the telephone. On October 15, 1993, the United States forfeited the telephone pursuant to 21 U.S.C. 881. The declaration of forfeiture states that the telephone was seized from Maria Reyes and lists Maria Reyes as the telephone's owner. Julio Ramos is not named in the forfeiture declaration. *fn2"

 On May 19, 1995, Julio Ramos submitted a declaration in this criminal proceeding stating that he had an ownership interest in the cellular telephone.

 2. Discussion

 Julio Ramos claims that his criminal prosecution would constitute double jeopardy, as he has already been placed once in jeopardy by the forfeiture of the cellular phone.

 At the June 1, 1995 hearing, the Court denied Ramos' motion for two independent reasons: (1) relying, inter alia, on United States v. Torres, 28 F.3d 1463 (7th Cir.), cert. denied, 130 L. Ed. 2d 603, 115 S. Ct. 669 (1994) as persuasive authority, the Court held that this uncontested forfeiture does not constitute double jeopardy; and (2) relying on United States v. Halper, 490 U.S. 435, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989), the Court found that the forfeiture of this cellular phone was so disproportionate to the harm caused by the alleged conduct underlying the narcotics, firearms, conspiracy, and continuing criminal enterprise charges against Julio Ramos that the forfeiture sanction imposed in this case could not be said to constitute "punishment" within the meaning of the double jeopardy clause.

 a. The Effect of an Uncontested Forfeiture

 In United States v. $ 405,089.23 U.S. Currency, 33 F.3d 1210 (9th Cir. 1994) ("405"), the Ninth Circuit held that civil forfeiture of money connected with conspiracy and money laundering, after the claimants had been convicted and sentenced for those crimes, violated the constitutional prohibition against double jeopardy. In 405, the criminal conviction preceded the civil forfeiture. The Ninth Circuit emphasized, however, that its holding applied equally to situations in which the sequence is reversed. Id. at 1222.

 In 405, the defendant contested the forfeiture. The Ninth Circuit has not addressed the question whether an uncontested civil forfeiture constitutes "jeopardy" for purposes of double jeopardy analysis in cases where the forfeiture proceeding precedes the criminal trial. The Seventh Circuit, as well as several district courts within the Ninth Circuit, have held that it does not. See United States v. Torres, 28 F.3d 1463 (7th Cir. 1994); United States v. Nakamoto, 876 F. Supp. 235 (D. Hawaii 1995); United States v. Kemmish, 869 F. Supp. 803 (S.D. Cal. 1994); United States v. Walsh, 873 F. Supp. 334 (D. Ariz. 1994). Several district courts have held to the contrary. See United States v. Plunk, 1994 U.S. Dist. LEXIS 20397, A94-036 (JWS) (D. Alaska Nov. 17, 1994); United States v. Pius Aileman, CR 94-0003 VRW, report and recommendation by Magistrate Judge (March 24, 1995), adopted by district court in substantial part (May 9-11, 1995).

 This Court finds the reasoning of Torres, Nakamoto, Kemmish, and Walsh persuasive. In Torres, defendants Torres and Olivares produced $ 60,000 to pay for three kilogram of cocaine. "It was a trap. The 'sellers' were federal agents; Torres and Olivares lost the money and their liberty." 28 F.3d at 1464. After seizure, the $ 60,000 was forfeited in a civil proceeding. Torres received notice providing him the opportunity to make a claim in the civil forfeiture proceeding. He did not. Thus, he did not become a party to the forfeiture proceeding. There was no trial. The $ 60,000 was forfeited without opposition. Torres was subsequently tried and convicted on the criminal charges. On appeal, he claimed that, by virtue of the double jeopardy clause, the pretrial forfeiture of the $ 60,000 precluded the sentence of imprisonment.

 The Seventh Circuit disagreed, noting that "You can't have double jeopardy without a former jeopardy." 28 F.3d 1463 at 1465 (citing Serfass v. United States, 420 U.S. 377, 389, 43 L. Ed. 2d 265, 95 S. Ct. 1055 (1975)). The court held that because Torres was a non-party, he 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. (quoting Serfass, 420 U.S. at 391-92); see also Nakamoto, 876 F. Supp. 235 (D. Hawaii 1995) (noting that "where a defendant successfully avoids adjudication for guilt, jeopardy will not attach"). Indeed, the court continued, "because Torres did not make a claim in the forfeiture proceeding, we have no reason to believe that he owned or had any interest in the money." Id.

 The same analysis applies in the instant case. Because Julio Ramos was a non-party to the forfeiture action, he was not "at risk" in the forfeiture proceeding. Consequently, jeopardy never attached. There is also an apparent factual difference between this case and the cited cases. This case appears to be the only one where someone else's property was actually forfeited. As already noted, this phone was forfeited as the property of Title 21 violator Maria Reyes. This ...

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