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June 30, 1995


The opinion of the court was delivered by: FERN M. SMITH


 The issue before the Court is whether a civil forfeiture to which a defendant explicitly consented in the plea agreement disposing of his criminal case, and which consent was a specifically bargained-for term of the agreement, violates his rights under the Double Jeopardy Clause of the Fifth Amendment. The Court finds that it does not.


 On September 10, 1991, defendant Singleton was indicted by a federal grand jury in the Northern District of California for numerous drug, firearms, and money laundering offenses. On January 28, 1992, a superseding indictment was returned. On February 12, 1992, the United States filed a civil complaint for forfeiture of $ 71,740 in U.S. currency and three luxury automobiles, pursuant to 21 U.S.C. §§ 881(a)(4) and (a)(6) and 18 U.S.C. § 981(a)(1)(A). The civil matter was assigned to the Hon. Vaughn R. Walker. On March 30, 1992, defendant filed an answer to the civil complaint. On July 14, 1992, Judge Walker ordered the civil forfeiture proceeding stayed pending disposition of the underlying criminal case.

 Following extensive pretrial negotiations, and pursuant to a written plea agreement ("the Agreement"), on September 17, 1992, defendant Singleton pled guilty to the following counts of the superseding indictment: (1) Count One--Conspiracy to Distribute Heroin in violation of 21 U.S.C. § 846; (2) Counts Two through Four--Distribution of Heroin in violation of 21 U.S.C. § 841(a)(1); (3) Count Twenty Two--Use of a Firearm in the Commission of Drug Offenses in violation of 18 U.S.C. § 924(c)(1); and (4) Count Twenty Five--Laundering of Monetary Instruments in violation of 18 U.S.C. § 1956(a)(1)(B)(i).

 Defendant waived any right to challenge the underlying facts of all offenses charged. Additionally, he explicitly agreed, as part of the universal disposition, to the forfeiture of the currency and automobiles:

The defendant acknowledges, in proceedings separate from this Plea Agreement, that he shall forfeit all right, title, and interest, pursuant to a Complaint for forfeiture, filed by the United States, in the following property which he admits either constitutes the proceeds of drug trafficking or was used to facilitate drug trafficking.

 The Agreement at 8. In exchange, the government agreed, among other things, to forego forfeiture of the real property known as 6691 Crow Canyon Road, Castro Valley, California.

 On September 23, 1992, five days after the execution of the Agreement and entry of Singleton's guilty plea, the parties filed a settlement stipulation concerning the civil complaint. This stipulation stated that the currency and two of the three automobiles were being forfeited pursuant to 21 U.S.C. §§ 881(a)(4) and (a)(6). The third automobile, the 1986 Maserati, was being forfeited pursuant to 21 U.S.C. § 881(a)(6) and 18 U.S.C. § 981(a)(1)(A). Judge Walker issued the Judgment and Final Order of Forfeiture on September 23, 1992, specifically relying on the settlement stipulation. On March 24, 1993, defendant was sentenced to a total of 181 months incarceration by this Court.

 At no time during the pre-plea proceedings through sentencing did Singleton challenge, on double jeopardy grounds, the explicit forfeiture provisions in the Agreement or the Final Order of Forfeiture. Moreover, defendant filed no appeal to the Ninth Circuit contesting, on double jeopardy grounds, either the criminal convictions or the forfeiture. Finally, at no time during subsequent litigation over a grand jury subpoena, in which the plea agreement was successfully invoked by the defendant, did Singleton or his counsel suggest that either the conviction or the sentence was barred by the Double Jeopardy Clause.

 On March 16, 1995, two years after defendant was sentenced, defendant filed this § 2255 Motion, in which he argues that "jeopardy attached first in the civil forfeiture action . . . The subsequent judgment and sentence in the criminal case thus constituted a second judgment and punishment for the same conduct." § 2255 Motion Dated 3/16/ 95 P 10. On April 28, 1995, defendant also filed, before Judge Walker, a Motion to Set Aside Judgment of Forfeiture, in which he asserts that "[he] was punished first by the judgment of conviction and 121 [sic] month sentence imposed by the court in the criminal case . . . Singleton was punished a second time by this Court's judgment and Final Order of Forfeiture." Id. at P 5.7. Since the Motion to Set Aside Judgment is before Judge Walker, this Court need only deal with defendant's § 2255 motion, in which he claims that he was punished twice, in violation of the Double Jeopardy Clause of the Fifth Amendment. Although certain findings in this Order may, of necessity, raise inferences relevant to the Motion to Set Aside Judgment, this ruling is neither advisory to nor binding upon Judge Walker.


 Defendant relies primarily on the recent Ninth Circuit decision United States v. $ 405,089.23 in U.S. Currency, 33 F.3d 1210 (9th Cir. 1994) ("Arlt") to support his claim that his criminal sentence is unconstitutional under double jeopardy analysis. In that case, the Ninth Circuit held that a civil forfeiture based on the same offense as a criminal indictment could violate the Double Jeopardy Clause. In response to Singleton's arguments the government argues that: (1) defendant waived his right to challenge either his sentence or the forfeiture of his property on double jeopardy grounds; (2) defendant fails to sustain his double jeopardy challenge because the punishments were imposed in the same proceeding; and (3) Arlt should not be applied retroactively. The Court finds that (1) the criminal conviction by plea was the first proceeding in which jeopardy attached and is therefore not subject to a double jeopardy attack; (2) defendant was not subjected to multiple ...

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