The opinion of the court was delivered by: JENSEN
On November 29, 1995, the Court heard arguments on Jose Garcia's motion under 28 U.S.C. § 2255 to vacate his conviction and sentence on grounds of a violation of double jeopardy. Having considered the arguments of counsel and the papers submitted, for three separate reasons the Court hereby DENIES petitioner's motion.
A. Factual Background and Procedural History
Jose Luis Garcia, an inmate of the Federal Bureau of Prisons presently incarcerated in Florence, Colorado, filed a motion under 28 U.S.C. § 2255 to vacate his conviction and sentence on the grounds of a violation of double jeopardy.
On or about March 28, 1990, Garcia was arrested and charged with conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846 (CR 90-0168 DLJ). At the time of his arrest, his Mercedes Benz was also seized by federal agents.
On June 1, 1990, a superseding indictment was returned against defendant alleging eight related charges: conducting a continuing criminal enterprise ("CCE") in violation of 21 U.S.C. § 848 (count 1); conspiring to distribute and to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846 (count 2); possessing cocaine for distribution and distributing cocaine in violation of 21 U.S.C. § 841(a)(1) (counts 3,4,5 & 7); using a communication facility to further a cocaine offense in violation of 21 U.S.C. § 843(b) (count 6); and laundering money in violation of 18 U.S.C. § 1956(a)(1)(B)(I) (count 8).
On or about July 18, 1990, the United States filed a forfeiture complaint against Garcia's Mercedes Benz, alleging that the car was purchased with proceeds obtained from drug transactions in violation of 21 U.S.C. §§ 841(a)(1), 846 & 848 (C 90-2010). On August 6, 1990, Garcia filed an answer to the complaint. On October 30, 1990, Garcia entered into a stipulation with the United States for forfeiture of the automobile. Pursuant to the stipulation, the Court entered a Judgment and Final Order of Forfeiture on November 15, 1990.
Trial commenced on the criminal charges on September 10, 1990 and the jury was empaneled on September 14, 1994. On October 10, 1990, the jury returned a verdict of guilty on Counts 1, 2, 3, 4, 5, 6 and 8. The jury announced that it was unable to reach a verdict on Count 7. On March 6, 1991, the court sentenced Garcia to 300 months on the CCE count and to various concurrent prison sentences on the remaining offenses of conviction. Formal judgment was entered on March 11, 1991. On April 27, 1993, the conviction and sentence was affirmed on appeal.
Citing the Ninth Circuit's decision in United States v. $ 405,089.23 U.S. Currency, 33 F.3d 1210 (1994), amended, 56 F.3d 41 (9th Cir. 1995) ("405 "),
petitioner contends that his sentence in the criminal case constitutes double jeopardy because he had previously been punished for the same offenses and conduct by means of the civil forfeiture of his automobile. After a preliminary review of the petition under Rule 4 of the § 2255 rules, the court ordered the government to show cause why the petition should not be granted.
A. Is $ 405,089.23 Applicable on Collateral Review?
The United States argues that 405 cannot be applied retroactively on habeas to bar Garcia's criminal conviction on double jeopardy grounds. Under Teague v. Lane, 489 U.S. 288, 310, 109 S. Ct. 1060, 1075, 103 L. Ed. 2d 334 (1989), when a case establishes a "new constitutional rule," that rule cannot be retroactively applied on collateral review. The Teague decision was premised upon the idea that "it is sounder, in adjudicating habeas petitions, generally to apply the law prevailing at the time a conviction became final than it is to seek to dispose of [habeas] cases on the basis of intervening changes in constitutional interpretation." 109 S. Ct. at 1075.
The Teague Court defined a "new rule" as one which "was not dictated by precedent existing at the time the defendant's conviction became final." Since that time, the Court has expanded the definition of "new rule" to include a decision which reaches a result which is "susceptible to debate among reasonable minds." Butler v. McKellar, 494 U.S. 407, 110 S. Ct. 1212, 1217, 108 L. Ed. 2d 347 (1990). Accordingly, 405 may be applied on collateral review of Garcia's criminal conviction only if this Court determines that, at the time Garcia's ...