ordered liberty.'" Butler, 110 S. Ct. at 1218. Petitioner also argues that 405 falls into this exception. This exception is limited, however, "to those procedures without which the likelihood of an accurate conviction is seriously diminished." Id. The rule at issue here has no bearing on the accuracy of the defendant's criminal conviction. As such, the second exception to non-retroactivity is inapplicable in this case.
In supplemental briefing on this issue, petitioner also argues that retroactive application is appropriate because the rule of law which Garcia invokes is substantive, rather than procedural. Petitioner's argument is premised upon a third exception, which provides that, in contrast to new constitutional rules of criminal procedure, substantive rules of criminal law are applied retroactively. See United States v. McClelland, 941 F.2d 999, 1000 (9th Cir. 1991) (holding that the decision in Aguon II, 851 F.2d 1158 (9th Cir. 1988), finding that inducement is an essential element of extortion, was fully retroactive). Under this substantive law exception, when a defendant is convicted and punished "for an act the law did not make criminal" that defendant is "entitled to challenge the conviction to avoid 'a complete miscarriage of justice.'" McClelland, 941 F.2d at 1001 (9th Cir. 1991) (quoting Davis v. United States, 417 U.S. 333, 345, 41 L. Ed. 2d 109, 94 S. Ct. 2298 (1974)).
Unlike the rule announced and applied in McClelland, the rule announced in 405 is not a substantive rule of law. Substantive rules generally involve judicial interpretations of the scope of federal criminal law statutes. See e.g., Chambers v. United States, 22 F.3d 939, 942-43 (9th Cir. 1994) (full retroactivity to ruling that scienter was required for federal child pornography offense); Ianniello v. United States, 10 F.3d 59, 63 (2d Cir. 1993) (full retroactivity to decision narrowing scope of RICO offenses); United States v. Sood, 969 F.2d 774, 775-76 (9th Cir. 1992) (full retroactivity to ruling that federal bribery offense was not prosecutable in Guam); United States v. Shelton, 848 F.2d 1485, 1489 (10th Cir. 1988) (en banc) (full retroactive application of rule limiting scope of mail fraud prosecutions); Ingber v. Enzor, 841 F.2d 450, 454-55 (2d Cir. 1988) (full retroactivity to decision limiting scope of mail fraud offenses). In contrast, 405 involved interpretation of a constitutional provision -- the double jeopardy clause. Accordingly, 405 did not announce a substantive rule requiring retroactive application.
Because 405 announced a new rule, and no exceptions apply, it should not be applied on habeas to provide Garcia relief from his criminal conviction.
B. Did Jeopardy Attach in the Civil Proceeding Before the Jury Was Empaneled in the Criminal Proceeding?
Even if 405 could be retroactively applied to this case, it would not provide Garcia a basis for relief from his criminal conviction because jeopardy attached first in the criminal action.
In 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. 405, 33 F.3d at 1220. Although the criminal conviction in 405 preceded the civil forfeiture, the Ninth Circuit emphasized that its holding applied equally to situations in which the sequence was reversed. Id. at 1222; see also United States v. Chick, 61 F.3d 682, 686 (9th Cir. 1995).
A court cannot invalidate a criminal conviction on double jeopardy grounds unless jeopardy attached in the civil forfeiture proceeding against the claimant-defendant's property or currency before it attached in the criminal action. See United States v. Kearns, 61 F.3d 1422, 1428 (9th Cir. 1995) (holding that conviction did not violate double jeopardy where jury was empaneled and sworn in criminal trial before defendant filed answer to forfeiture complaint). Thus, Garcia would only be entitled to relief from his criminal conviction if jeopardy first attached in the civil forfeiture action against his Mercedes.
It is well-settled that jeopardy attaches in a criminal case when the court accepts a defendant's guilty plea, a jury is empaneled for trial, or the first witness is sworn in a bench trial. See United States v. Martin Linen Supply Company, 430 U.S. 564, 569, 97 S. Ct. 1349, 1353, 51 L. Ed. 2d 642 (1977). In contrast to the well-settled rule for criminal cases, as of this date, the Ninth Circuit has not made a clear statement as to the time when jeopardy attaches in a civil forfeiture case. Several decisions, however, provide guidance on this question. See United States v. Kearns, 61 F.3d 1422, 1428 (9th Cir. 1995) (holding that conviction did not violate double jeopardy where jury was empaneled and sworn in criminal trial before defendant filed answer to forfeiture complaint); United States v. Barton, 46 F.3d 51, 52 (9th Cir. 1995) (jeopardy attaches no earlier than date on which defendant filed answer to forfeiture complaint); see also United States v. Faber, 57 F.3d 873, 874-75 (9th Cir. 1995) (conviction does not violate double jeopardy where defendant entered guilty plea before entering into settlement agreement in civil forfeiture proceeding); United States v. Wong, 62 F.3d 1212, 1214-15 (9th Cir. 1995) (holding that jeopardy does not attach in the administrative process preliminary to formal forfeiture proceedings even when the petitioner has filed a petition for remission or mitigation); United States v. Sanchez-Cobarruvias, 65 F.3d 781, 783 (9th Cir. 1995) (stating that there must be a degree of finality to the civil proceeding before double jeopardy may be deemed to attach).
Consistent with these Ninth Circuit decisions and by analogy to criminal cases, this Court finds that jeopardy attaches in a civil forfeiture case when the defendant enters into a stipulation for decree of forfeiture, or when a judgment is entered following a dispositive motion, or, in cases that go to trial, when the jury is empaneled or the first witness is sworn in a bench trial. Accord United States v. Stanwood, 872 F. Supp. 791 (D. Or. 1994).
The petitioner argues that jeopardy should attach when the defendant files an Answer in the civil forfeiture proceeding. Petitioner reasons that it is at this point that the claimant risks entry of an adverse judgment against him. The government responds, however, with a more convincing analogy. According to the government, the filing of an answer is analogous to a defendant entering a not guilty plea in a criminal proceeding. "Like a not guilty plea, the filing of an answer in the civil forfeiture context does little more than announce the defendant's disagreement with the government's allegations and his intention to force the government to meet its burden of proof." Govt. Response at 11. Since jeopardy does not attach at this preliminary stage in a criminal proceeding, the government reasons, there is no logical reason for it to attach at a similar pleading stage of a civil forfeiture proceeding.
As noted above, the Court agrees with the government that the appropriate point for the attachment of jeopardy in the civil forfeiture proceeding at issue is when Garcia entered into a stipulation for decree of forfeiture. Taking the logic of the government's comparison one step further, the entry of a Stipulation and Order in a civil forfeiture is analogous to the court accepting the defendant's guilty plea in a criminal case, a process which does trigger double jeopardy protection. Both events signal a significant adjudicative stage in the proceedings, and both require the parties to appear together before the Court to be binding. It therefore seems consistent with the underlying policy of the double jeopardy protection to find that jeopardy attached in this case when the court accepted the Stipulation for forfeiture.
In this case, Garcia entered into the Stipulation for forfeiture on October 30, 1990. The jury was empaneled in his criminal case on September 14, 1990. As such, Garcia's double jeopardy challenge to his criminal conviction is without merit.
C. Did the Civil Forfeiture Constitute "Punishment"?
As a separate and independent reason to deny the petition, the Court finds that the forfeiture of Garcia's used Mercedes car does not serve a punitive purpose such that it would constitute "punishment" for double jeopardy analysis.
When the Supreme Court shifted course in Halper, deciding that civil proceedings could constitute punishment for purposes of double jeopardy, the Court stated that "the labels 'criminal' and 'civil' are not of paramount importance" in determining whether a sanction constitutes punishment for purposes of double jeopardy. The Court held that a civil sanction, in application, "may be so divorced from any remedial goal that it constitutes 'punishment' for the purpose of double jeopardy analysis."
[A] civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving retributive or deterrent purposes, is punishment.
Id. at 448.
As this court has previously noted, the ruling in Halper was a rule of reason, applicable when a sanction is "overwhelmingly disproportionate to the damages . . . caused." See United States v. Ramos-Oseguera, 900 F. Supp. 1258 (N.D. Cal. 1995) (quoting Halper, 490 U.S. at 449). The forfeiture of a used Mercedes automobile cannot be considered a retributive or punitive sentence which is "proportionate," in any conceivable sense of the word, to the offenses involved in the criminal charges against Jose Garcia. Garcia was sentenced by this court on the criminal charges to 300 months in prison. The forfeiture of a used car, although serving a remedial purpose by preventing the future use of an instrumentality of past crimes, is in no sense proportionate to the punitive sanction of twenty-five years in prison. One need only contemplate the fate of a bill introduced in Congress to reduce the present CCE penalty to one requiring the convicted offender forfeit a used car to realize the force of this proposition.
Accordingly, under the reasoning in Halper, the Court finds that the forfeiture of the used Mercedes was wholly disproportionate to the criminal activity in which the defendant engaged and did not constitute the type of punishment necessary to trigger the protection of double jeopardy.
Because 405 announced a new rule, this Court need not apply it on collateral review. However, even if 405 was applied, it would not provide relief from Garcia's criminal conviction because jeopardy attached in the criminal conviction first. Moreover, even if jeopardy would normally attach at an earlier stage in a civil forfeiture proceeding, because the civil forfeiture in this case is a sanction wholly disproportionate to the egregious criminal activity in which the defendant engaged, it is not a punishment which can trigger the protection of double jeopardy.
IT IS SO ORDERED.
Dated: January 18, 1996
D. Lowell Jensen
United States District Judge