Court finds that forfeiture of Singleton's property may be used as part of his criminal punishment without violating the Double Jeopardy Clause. As long as the value of the property forfeited is within the range of fines imposed by the legislature for the underlying criminal offense, and is agreed to by the defendant as part of a single unified plea-bargaining process, the forfeiture does not constitute a separate punishment for purposes of double jeopardy analysis.
According to the relevant sentencing guidelines, the maximum amount defendant could be fined for Counts One through Four was $ 4 million. The maximum statutory fine for Count 24 was $ 500,000 or twice the value of the property involved in the transaction. See the Agreement at 4; 18 U.S.C. § 1956. Although the exact dollar value of the automobiles forfeited was never stated, it is clear that the value of all property forfeited plus the fine imposed at sentencing falls well below the statutory maximum fine limit. Furthermore, although the forfeiture action may technically have been a separate proceeding before a separate judge, incorporating the stipulated forfeiture into the plea agreement allowed the sentencing court to take the forfeiture into account in deciding whether and in what amount to impose a fine. See United States v. Crook, 9 F.3d 1422, 1426 (9th Cir. 1993), cert. denied, U.S. , 114 S. Ct. 1841, 128 L. Ed. 2d 467 (1994).
The Arlt court found that separately docketed civil and criminal cases are "separate proceedings," even though "parallel." It did not hold, however, that separate proceedings necessarily impose multiple punishments. Further, the facts of this case are substantially different from those in Arlt. The Arlt defendants contested both the civil forfeiture action and their criminal conviction. They were therefore required to "defend on two fronts," which the Ninth Circuit viewed as "manipulative prosecution" strategy. Arlt, 33 F.3d at 1217. Thus, the government's behavior was found to be the type of abusive conduct about which Halper was concerned, and against which the Double Jeopardy Clause protects.
Here, there is no evidence of conscious governmental abuse. The government filed its civil complaint within twelve days of filing the superseding indictment. Any concern that the government's civil action was motivated by its dissatisfaction with the punishment imposed in the criminal matter is therefore unfounded. Nor did the government use the forfeiture to "harass or exhaust" defendant, since he expressly and voluntarily consented to the civil forfeiture as part of his guilty plea in the criminal matter. Further, the government and defendant agreed to stay the civil action pending disposition of the criminal case. Defendant was never forced to defend on "two fronts." See Arlt, 33 F.3d at 1217. In fact, quite the opposite occurred.
The Agreement between defendant and the government was neither a hastily drawn contract nor lightly considered. It was entered into only after extended negotiations in which defendant was represented by highly skilled counsel. As a result of that Agreement, defendant received numerous benefits, including incarceration at the low end of the guidelines, dismissal of forfeiture proceedings against the family residence, dismissal of numerous counts in the indictment, and a release from any obligation to cooperate with law enforcement. (Although this latter point resulted in subsequent litigation, defendant prevailed both in this Court and in the Ninth Circuit by claiming reliance on that same Agreement.)
The Agreement, entered in the criminal proceeding only, includes defendant's acknowledgement that facts admitted to in the Agreement would be "binding on him in all future criminal and civil proceedings." The Agreement at 4-5 (emphasis added). Those facts included the admission that all of the property to be forfeited "either constitutes the proceeds of drug trafficking, was purchased with the proceeds of drug trafficking, or was used to facilitate drug trafficking." Id. at 8. Judge Walker issued the Final Order and Judgment on the forfeiture 6 days after the Agreement was accepted in the criminal proceedings, "based solely upon Singleton's plea in the criminal case." Motion to Set Aside Judgment, C-92-0739-VRW at 3 (Mar. 3, 1995).
Defendant agreed to the forfeiture of certain property as part of the guilty plea that disposed of his criminal matter. He understood that, although he had consented to forfeiture, he would still be criminally sentenced based on his offenses. The forfeiture and other sentencing possibilities, all of which defendant consented to in the same plea agreement, constitute a single punishment for defendant's offenses, which punishment was well within the allowable ranges for the offense of conviction. Witte, supra, at 4526. Defendant has not suffered multiple punishments for purposes of double jeopardy analysis.
Even were the Court to find that defendant has suffered multiple punishments, he has waived any challenge based on double jeopardy grounds. As the Supreme Court stated in United States v. Broce, 488 U.S. 563, 102 L. Ed. 2d 927, 109 S. Ct. 757 (1989):
A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence. Accordingly, when the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary. If the answer is in the affirmative, then the conviction and the plea, as a general rule, foreclose the collateral attack.
Id. at 569.
That inquiry has been fully made and answered in the affirmative here. Additionally, the Supreme Court reached its decision in Broce expressly without considering "the degree to which the decision by an accused to enter into a plea bargain, which incorporates concessions by the Government, . . . heightens the already substantial interest the Government has in the finality of the plea." Id. at 575 (emphasis in the original).
Under the terms of the Agreement herein, both parties bargained for and received substantial benefits. Plea bargains "are consistent with the requirements of voluntariness and intelligence -- because each side may obtain advantages when a guilty plea is exchanged for sentencing concessions, the agreement is no less voluntary than any other bargained-for exchange." Mabry v. Johnson, 467 U.S. 504, 508, 81 L. Ed. 2d 437, 104 S. Ct. 2543 (1984). Here, the forfeiture of specified property was part of the entire package of sentencing concessions bargained for and obtained by defendant. The Agreement stated that "all promises herein made by each party are made dependent on full performance of the promises made by the other party." The Agreement at 9. It also provided that violation of any term of the Agreement by the defendant would leave the United States free to prosecute any and all present or new offenses. Id. As in Ricketts v. Adamson, 483 U.S. 1, 10, 97 L. Ed. 2d 1, 107 S. Ct. 2680 (1987), the clear terms of the Agreement returned the parties to the status quo ante in the event of defendant's breach. As in that case, this Court finds such an agreement to be equivalent to a waiver of any double jeopardy defense.
Further authority for a finding of waiver comes from United States v. Zavala, 839 F.2d 523, 528 (9th Cir. 1988), wherein the Ninth Circuit held that "[a] defendant may not raise the defense of double jeopardy to a charge on which he expressly agrees to be tried." (citing Ricketts v. Adamson, supra). There is no reason for a different conclusion where the defendant has expressly agreed to a punishment which includes a combination of civil and criminal penalties. "The parties could have struck a different bargain, but permitting the [government] to enforce the agreement the parties actually made does not violate the Double Jeopardy Clause." Ricketts, 483 U.S. at 12.
Defendant herein has rigorously and rightfully claimed and utilized all of the benefits conferred upon him by the Agreement. There is no reason in law, equity or public policy to deny that same right to the government.
Because (1) the conviction was the first proceeding in which jeopardy attached; (2) defendant was not subjected to multiple punishments for the same offense; and (3) the plea agreement between the defendant and the government was equivalent to a waiver of defendant's double jeopardy rights, defendant's § 2255 Motion is hereby DENIED and DISMISSED.
DATED: June 30, 1995
FERN M. SMITH
United States District Judge