
    UNITED STATES of America, Plaintiff, v. Don Takamori NAKAMOTO, Defendant.
    Cr. No. 94-01188 DAE.
    United States District Court, D. Hawai'i.
    Feb. 14, 1995.
    Michael K. Kawahara, Asst. U.S. Atty., U.S. Attys. Office, Beverly Sameshima, Asst. U.S. Atty., Honolulu, HI, for plaintiff.
    Ignacio R. Garcia, Benjamin R.C. Ignacio, Garcia & Garcia, Honolulu, HI, for defendant.
   ORDER DENYING DEFENDANT’S MOTION TO VACATE GUILTY PLEA AND DISMISS INDICTMENT

DAVID ALAN EZRA, District Judge.

The court heard Defendant’s motion on January 30, 1995. Ignacio R. Garcia. Esq., appeared on behalf of Defendant; Beverly Wee Samashima, Esq., appeared on behalf of the United States. After hearing argument and reviewing the motion and the supporting and opposing memoranda, the court DENIES Defendant’s motion.

BACKGROUND

On January 1, 1994, United States Drug Enforcement (“DEA”) Agents arrested Defendant Nakamoto (“Nakamoto” or “Defendant”) for possessing with intent to distribute approximately 440 grams of crystal methamphetamine. Police seized $16,248.00 in U.S. currency and a cellular telephone. The United States indicted Nakamoto on drug charges. Nakamoto pled guilty and cooperated in further investigations. His sentencing was set for December 19,1994. On that date, this court granted Defendant a continuance to allow briefing on the double jeopardy issues raised by United States v. $405,089.23 in U.S. Currency, 33 F.3d 1210 (9th Cir. 1994).

The DEA initiated administrative forfeiture proceedings against the currency and cellular telephone on January 2, 1994 and January 3, 1994. The DEA provided notice of the forfeiture action to Nakamoto on April 4, 1994. Nakamoto admits that he received notice of the forfeiture but did not contest it. The DEA issued a declaration of forfeiture on May 20, 1994.

Defendant Nakamoto now moves this court for an order vacating his guilty plea and dismissing the indictment against him. He argues that imposition of punishment for the drug charge would violate the constitutional prohibition against double jeopardy.

DISCUSSION

The concept of double jeopardy has expanded beyond its original formulation. The Double Jeopardy Clause of the Fifth Amendment states “... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” “The basis of the Fifth Amendment protection against double jeopardy is that a person shall not be harassed by successive trials; that an accused shall not have to marshal the resources and energies necessary for his defense more than once for the same alleged criminal acts.” Abbate v. United States, 359 U.S. 187, 198-99, 79 S.Ct. 666, 672-73, 3 L.Ed.2d 729 (1959). This basic principle also protects against double punishment. “This Court has many times held that the Double Jeopardy Clause protects against ... multiple punishments for the same offense.” United States v. Halper, 490 U.S. 435, 439, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989) (citations omitted).

Recently, the Supreme Court held that a civil forfeiture proceeding could constitute punishment, regardless of the “civil” or “criminal” label placed upon it by Congress. Halper, 490 U.S. at 446-17, 109 S.Ct. at 1901. In Halper, the court held that “[A] civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term.” 490 U.S. at 448, 109 S.Ct. at 1902.

The Supreme Court has specifically included the civil forfeiture provisions of 21 U.S.C. §§ 881(a)(4) and (a)(7) in its definition of “punishment.” Austin v. United States, — U.S. -, -, 113 S.Ct. 2801, 2812, 125 L.Ed.2d 488 (1993). In United States v. $4.05,089.23 in U.S. Currency, 33 F.3d at 1221, the Ninth Circuit held that a civil forfeiture under 21 U.S.C. § 881(a)(6), the narcotics proceeds forfeiture statute, also constitutes punishment.

In $105,089.23, the court reasoned that double jeopardy attaches when two elements are present: (1) a separate proceeding, and (2) a second punishment. 33 F.3d at 1216. Both elements must be present; the double jeopardy clause does not bar cumulative punishments imposed in a single proceeding. Ohio v. Johnson, 467 U.S. 493, 499-500, 104 S.Ct. 2536, 2541, 81 L.Ed.2d 425 (1984). As to the first element, separate proceedings, the government admits that the administrative forfeiture was itself a separate proceeding. However, it asserts that the proceeding did not involve Defendant Nakamoto, who was not a party, and therefore did not implicate double jeopardy. As to the second element, punishment, the government does not contest that the statutory basis for the forfeiture here has a punitive goal and therefore implicates the Double Jeopardy clause. Id. at 1221. Instead, the government argues that the result of an uncontested administrative forfeiture cannot constitute a second punishment.

The procedural provisions of the customs laws govern administrative forfeitures. 19 U.S.C. §§ 1602-1621; 21 U.S.C. § 811(d). Where property falls within the categories specified by 19 U.S.C. § 1607(a), the seizing agency may declare the property forfeited if: (1) it gave proper notice, and (2) no person files a claim to the property within twenty (20) days. 19 U.S.C. § 1608. Upon the filing of a claim and the filing or waiver of a cost bond, the matter is referred to the ap-propi’iate United States Attorney’s Office for initiation of judicial forfeiture. Therefore, under this regime, a declaration of administrative forfeiture may only be entered in uncontested cases.

Only one circuit court has addressed the question of whether an uncontested administrative forfeiture implicates the Double Jeopardy Clause. In United States v. Torres, 28 F.3d 1463 (7th Cir.) (Easterbrook, J.), cert. denied, — U.S. -, 115 S.Ct. 669, 130 L.Ed.2d 603 (1994), the Seventh Circuit found that double jeopardy was not offended. The court based its reasoning on two grounds. First, it noted that because he did not contest the forfeiture, Torres did not become a party and did not risk a determination of guilt. “There was no trial; the $60,-000 was forfeited without opposition, and jeopardy did not attach. You can’t have double jeopardy without a former jeopardy.” Id. at 1465 (citation omitted). Second, the court stated that Torres’ failure to contest the forfeiture left no reason to believe that he even had an interest in the property seized. Id. If he lacked an interest, there was no punishment. Id. at 1466.

Defendant attempts to distinguish Torres, indicating that it was decided before Department of Revenue v. Kurth Ranch, — U.S. -, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), where the Supreme Court held that a tax imposed upon marijuana in an administrative proceeding violated the double jeopardy clause. — U.S. at-, 114 S.Ct. at 1948 (“The proceeding Montana initiated to collect a tax on the possession of drugs was the functional equivalent of a successive criminal prosecution.”) However, unlike Nakamoto in this case, the Kurths appeared as parties in the proceeding and “contested the assessments. Id., — U.S. at-, at 1942-43. There was never a question of the Kurths waiving their right to contest the sanction. Therefore, the sound reasoning of Torres applies to this case.

There is no question that the extension of double jeopardy protection into the civil arena results in a line-drawing problem. After Halper, it is clear that the label “criminal” as applied to proceedings or punishments will not serve to define the limits of double jeopardy protection. The Supreme Court now mandates a search for the punitive element of a given statutory sanction. — U.S. at -, 113 S.Ct. at 2812. In $4.05,089.23, the Ninth Circuit applied Austin and reasoned that the statute at issue in that case, the same statute at issue in this case, “focuses on the culpability of the property owner by exempting innocent owners or lienholders” and “tie[s] forfeiture directly to the commission of specified offenses.” 33 F.3d at 1221.

Thus, under binding Ninth Circuit authority, there is no doubt that the forfeiture of property in a judicial forfeiture proceeding under 21 U.S.C. § 881(a)(6) constitutes punishment. However, whéther the punishment also falls upon a defendant when property seized from him is forfeited presents another question entirely. A court may only address the innocence of the owner in a forfeiture proceeding where the owner appears and claims the property. Therefore* the finding that the statute has a punitive effect does not solve the line-drawing problem when no person claims the property and the sanction is directly applied against no particular person. Cf United States v. Stanwood, 872 F.Supp. 791 (D.C.Or.1994) (jeopardy attaches when the final judgment of forfeiture is entered, not when the property is seized).

While the statute providing for forfeitures has a punitive purpose, the mere existence of a punitive statute does not constitute punishment for double jeopardy purposes unless that statute is applied to an individual. It is clear that the line must be drawn before extending double jeopardy protection to an uncontested administrative forfeiture. To do otherwise would invalidate the use of administrative forfeiture per se. It would also run counter to the rule that only legitimate possessory interests have standing to challenge forfeitures. United States v. Amiel, 995 F.2d 367, 371 (2nd Cir.1993), (citing United States v. Contents of Accounts Nos. S0S4.504-504- and 144-07143 at Merrill, Lynch, Pierce, Fenner and Smith, Inc., 971 F.2d 974, 985 (3d Cir.1992), cert. denied sub nom, Friko Corp. v. United States, — U.S.-, 113 S.Ct. 1580, 123 L.Ed.2d 148 (1993)). Otherwise, a forfeiture could be used by any defendant to claim that its punitive purpose had been aimed in his direction. Neither the Ninth Circuit in $405,089.23, nor the Supreme Court in Halper, Austin, and Kurth Ranch could have intended such a result. This court will not here extend the concept of double jeopardy so far.

Also relevant is the distinction between the voluntary choice of a guilty plea, to which jeopardy attaches absent waiver, and the voluntary choice to refrain from contesting an administrative forfeiture. The Supreme Court has stated that where a defendant successfully avoids adjudication of guilt, jeopardy will not attach. In United States v. Scott, 437 U.S. 82, 98-100, 98 S.Ct. 2187, 2198, 57 L.Ed.2d 65 (1978), the defendant successfully moved for a dismissal of the indictment due to delay. The Supreme Court held that where the defendant himself chooses to avoid a final determination of guilt or innocence, the Double Jeopardy Clause is not offended by a second prosecution. Id. The Court based its reasoning not on waiver, but on the reasoning that “the Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences -of his voluntary choice.” Id.

Here, Defendant does not argue that he did not receive notice. Instead, he made a voluntary choice not to contest the forfeiture. This choice avoided putting his guilt or innocence at issue in a judicial forfeiture proceeding, a separate proceeding involving the defendant as a party and carrying a potential “punishment” at the end. $4-05,089.23, 33 F.3d at 1221.

Because the Defendant chose to fore-go his opportunity to contest the forfeiture, he was not a party to the forfeiture proceeding and cannot claim an interest in the property. Without an interest in the property, he cannot be said to have been subjected to jeopardy or punished in any way by the administrative forfeiture. Therefore, the uncontested administrative forfeiture does not offend the Double Jeopardy Clause, and, accordingly, the court DENIES the Defendant’s motion.

CONCLUSION

For the reasons stated above, the court DENIES the Defendant’s Motion to Vacate Guilty Plea and Dismiss the Indictment.

IT IS SO ORDERED. 
      
      . The United States indicates that Nakamoto's crime and criminal history category would result in a guideline sentencing range of 135 to 168 months.
     
      
      . The United States has filed a petition for rehearing and suggestion for rehearing en banc in this case, and the Ninth Circuit recently directed the Appellant to file a response. See Order dated December 29, 1994, attached as Exhibit B to the Government’s Memorandum.
     
      
      . Several district courts in this circuit have addressed this question, with varying outcomes. The parties discuss these decisions and attach several unpublished dispositions to their memo-randa on this motion.
     
      
      . In United States v. Amiel, 995 F.2d 367 (2nd Cir. 1993), the Second Circuit discussed in dicta the situation where a valid default judgment is entered in a civil forfeiture proceeding and used the same reasoning as the court in Torres:
      
      If an appeal is now barred or if the default judgment is affirmed on appeal, then it would appear that defendants have no legitimate claim to the seized properties, which would vitiate any claim of "punishment" based on the civil foifei-ture.
      
      995 F.2d at 371-72.
     
      
      . At the hearing on this motion, counsel for Defendant added two citations to those cited in his memorandum: United States v. Millan, 2 F.3d 17 (2nd Cir. 1993), and United States v. 18755 North Bay Road, 13 F.3d 1493 (11th Cir. -1994). Neither of these cases aid Defendant here.
      In Millan, the Second Circuit held that a civil forfeiture was part of the same proceeding as the criminal prosecution. 2 F.3d at 20. It did not, however, expressly hold that if the civil forfeiture was not part of the same proceeding, it would have implicated double jeopardy. Id. Even if the court had so held, in Millan the defendant contested the administrative forfeiture and subsequently entered into a settlement with the government, in contrast to Nakamoto’s failure to contest here. See id. at 19.
      In 18755 North Bay Road, the parties also contested the forfeiture. 13 F.3d at 1494-95. As in Millan, the court held that the forfeiture fell “within the contours of a single, coordinated prosecution.” Id. at 1499. On this basis, the court, citing Millan, distinguished the concern for abuse by a government dissatisfied with the punishment exacted in the first proceeding, as expressed by the Supreme Court in Halper. Id. Here, Defendant was not a party to the first proceeding and, without showing an interest in the property, cannot claim to have been punished. Without punishment, there can hardly be said to exist government dissatisfaction with the punishment and subsequent abuse of power in initiating a second proceeding.
     
      
      .A simple example illustrates this point. Assume that the DEA initiates a successful investigation of a drug production and trafficking operation. At several' locations, the DEA seizes a vast array of items, including money and drug paraphernalia. Assume also that the DEA also arrests twenty (20) defendants at one key location, thirty (30) sellers on the street, and the one leader who runs the entire operation. Fifty others who were also involved escape arrest. The DEA initiates administrative forfeiture proceedings against the property seized and complies with the notice provisions mandated by the statute. No one claims any of the property. Against whom does double jeopardy attach? Conceivably, the statute’s punitive purpose applies to all fifty-one (51) of the arrestees, and arguably the other fifty (50) not arrested. Still, the only plausible answer is that double jeopardy can attach only when an individual comes forward, lays claim to the property, and converts the uncontested administrative forfeiture into a contested judicial one.
     
      
      . Applying the protection of double jeopardy only to those individuals who themselves receive specific notice of the administrative forfeiture does not draw a clear enough line, as makes punishment contingent on the agency's notice determination and creates an incentive for the agency to send notice to no one.
     
      
      . This rule is analogous to a rule noted by the United States, namely that a party should not be permitted to manufacture a conviction on a lesser charge in order to escape a conviction on a greater charge. In this case, by not contesting the forfeiture, Defendant would have traded a chance to assert a claim to a cellular telephone and $16,000 for freedom from a potential sentence of eleven years or more. Were the court to hold for Defendant here, under the same reasoning any defendant with no property interest at all could trade that worthless interest for the escape from a prison term simply because he had been notified by the DEA of a forfeiture proceeding. Plaintiff’s claims of noncompliance with the agency’s decision.
     