United States v. Ursery – Oral Argument – April 17, 1996

Media for United States v. Ursery

Audio Transcription for Opinion Announcement – June 24, 1996 in United States v. Ursery

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William H. Rehnquist:

We’ll hear argument now in Number 95-345, United States v. Guy Jerome Ursery, and Number 95-346, United States v. $405,000 and some change, consolidated for argument.

Mr. Dreeben.

Michael R. Dreeben:

Mr. Chief Justice, and may it please the Court:

From the earliest years of this Nation, Congress has authorized the Government to seek parallel in rem civil forfeiture actions and criminal prosecutions based on the same underlying events.

Until recently, the pursuit of such parallel actions was deemed to raise no question under the Double Jeopardy Clause.

Two recent decisions of this Court, however, United States v. Halper and Austin v. United States, prompted the courts of appeals in these two cases to conclude that the cumulative remedies of in rem civil forfeiture and criminal prosecution violated the multiple punishments doctrine under the Fifth Amendment.

These holdings are incompatible with the long tradition and practice in this country, and are incorrect for four reasons.

First, civil forfeiture is not categorically punitive within the meaning of the Fifth Amendment, and the forfeitures in this case were not punishment.

Second, an in rem forfeiture action is not a jeopardy that can give rise to the protection of the Fifth Amendment when the Government seeks to prosecute the owner of the forfeited property for a criminal violation.

Third, civil forfeiture of property under 21 U.S.C. 881 is not the same offense as the criminal prosecution of the owner of the property for having violated the narcotics laws and, finally, parallel contemporaneous civil forfeiture actions and criminal prosecutions shall be deemed to constitute a single proceeding within the meaning of the Fifth Amendment and therefore not to violate the Double Jeopardy Clause.

Now, the overriding question that is presented in both of these cases and in many others that are being litigated in the lower courts is whether in rem civil forfeiture should be deemed to be punishment.

Both of the courts below adopted a categorical rule that the forfeiture that is accomplished by application of section 881 should be categorically deemed punishment.

Sandra Day O’Connor:

Now, do you think, Mr. Dreeben, that the civil forfeiture could be punitive for purposes of the Excessive Fines Clause and yet not multiple punishment within the meaning of double jeopardy?

Michael R. Dreeben:

Yes, Justice O’Connor, I do.

The question that this Court has considered in determining whether civil forfeitures should be subjected to analysis under the Excessive Fines Clause is really an issue of whether it is sufficiently punitive to trigger the threshold applicability of that clause, and this Court held in the Austin decision that civil forfeiture does have such a punitive component both historically and in its contemporary applications, but civil forfeiture has never been deemed so punitive when considered in light of its simultaneous remedial aims as to constitute either a prosecution or a punishment under the Double Jeopardy Clause, and we submit that that is the correct analysis here.

In Halper itself, the Court applied a case by case analysis to determine whether a particular sanction applied in a particular case constituted an impermissible punishment.

The Court’s conclusion in Austin that categorically civil forfeiture warrants analysis under the Eighth Amendment does not dictate that all civil forfeitures applied in all cases at all times should be deemed punishment with the rather radical consequences that were accomplished by the courts below.

Sandra Day O’Connor:

So you think Halper maybe could be viewed as a multiple prosecution case and not a multiple punishment case.

Michael R. Dreeben:

I think that Halper, analyzed in the terms that the Court analyzed it, was a multiple punishments case, but it is nonetheless true that under Halper, there is some confusion about the exact test that the Court adopted in that case due to different formulations.

But our reading of Halper is that a sanction that is rationally related and can be explained by reference to underlying remedial purposes is not to be deemed punishment for purpose of the Double Jeopardy Clause even if there may be some element of punishment associated with that sanction.

Antonin Scalia:

And even though it’s considered such for purposes of the Excessive Fines Clause?

Michael R. Dreeben:

That is correct, Justice Scalia.

Antonin Scalia:

Why?

I can’t understand why somebody who would write a Constitution would think that a punishment is a punishment for one purpose but not another.

I mean, if it’s punishment enough that you can’t make it excessive, why isn’t it punishment enough that you shouldn’t get it twice?

What policy reason is there?

Michael R. Dreeben:

The answer to that question goes in part back to the roots and origins of the Double Jeopardy Clause itself.

That clause was an embodiment of common law protections that were accorded to finality in a criminal judgment, and they were accorded to the criminal judgment in very specific contexts that this Court has developed over time in a series of rather intricate and complicated rules.

It has never been the case, though, that the pursuit of an in rem action against property and the criminal prosecution of the owner of the property for separate violations would be deemed to constitute an impermissible multiple punishment.

Antonin Scalia:

But you’re saying… I’m sorry.

Antonin Scalia:

I say, I suggest that’s only because it was never applied to multiple punishments, period, of any sort.

I mean, greater includes the lesser, to be sure, but once we are on the track that double punishment, as opposed to double jeopardy, is covered by the Double Jeopardy Clause, I don’t see why all punishment deemed punishment by the Constitution shouldn’t qualify.

Michael R. Dreeben:

Well, I think the answer, Justice Scalia, is that to the extent that there is protection against multiple punishments that has been recognized in this Court’s cases as subsumed by the Fifth Amendment, that protection has been limited and defined in very specific contexts, and has never been a freestanding doctrine that would invalidate any and all simultaneous or contemporaneous pursuit of two actions that had some punitive component to it.

And what the courts below did, I think, is take to the absolute logical limits the principle that was in part reflected in Halper, recognizing a prohibition against multiple punishments, and have taken that principle and extended it so that it overrides very familiar common law practices that were well known to the Framers and that have been reflected throughout the history of this country–

David H. Souter:

But isn’t the different with, or at least a difficulty with the historical argument that you’re making that some of the forfeiture in this case, or in these cases, just do not have common law pedigrees?

It’s one thing, for example, perhaps to forfeit a vehicle on the theory that it stands in the same, or is in the same position of, you know, the boat that was used for smuggling and so on?

It seems to me quite another thing, though, to apply that same rule and to invoke history to apply the same rule when we’re talking about the forfeiture of all equity in a house that was used to dry some marijuana, and so I don’t see how your historical argument, even if I accepted it, could get you all the way through these cases.

Michael R. Dreeben:

–I agree, Justice Souter, that history is not the entire answer to this problem.

To take, for example, the issue of proceeds forfeitures, which are authorized under title 21 and were not part of the common law of forfeiture, we are not claiming here that the historical pedigree of forfeiting the proceeds of crimes is what explains why that forfeiture is not punishment.

It’s our submission that, analyzed as a matter of reason and logic, and in light of the common law principle that unjust enrichment included gaining funds or moneys through illegal means, and that it was not a punishment to take those profits away from the wrongdoer, we–

Ruth Bader Ginsburg:

But Mr. Dreeben, if we stick with the house where marijuana was dried, I thought, based on your answer to Justice O’Connor, that you would say that should be treated the way Austin was treated, as an excessive fine case, but doesn’t belong… wasn’t that the problem in Austin, that what was–

Michael R. Dreeben:

–Right, that’s correct.

I think in Austin all forfeitures of facilitating property, property that can be used to facilitate or to commit a crime, are subject to analysis under the Excessive Fines Clause because the Court concluded that they represent some punishment to the owner of the property at least in part, but the Court did not conclude that all forfeitures that are accomplished of facilitating property, or all forfeitures that are carried out under these statutes, will be punitive such that that is the only explanation for the sanction, which is the test in Halper.

David H. Souter:

–Okay.

How about applying the house example, though, as it were, to Justice Scalia’s question?

I take it we really don’t have a historical pedigree that we can rely on there.

We don’t have an unjust enrichment principle.

We’ve got a kind of forfeiture that goes beyond, I think, what the common law knew.

Why, in a case like that, should it be punishment for excessiveness purposes or potentially punishment for excessiveness purposes but not for double jeopardy purposes?

Michael R. Dreeben:

Well, let me first put in the historical context the forfeiture of facilitating property and apply it to the real estate in this case.

The common law recognized in a wide variety of contexts the potential for forfeiting property that was used in the commission of a crime, and your example of boats that were used for importing goods without declaration I think is a salient example.

There were many, many others.

At least since 1868, however, Congress has provided for by statute the forfeiture of real estate that was involved in the commission of crimes particularly with respect to failure to pay tax on liquor.

David H. Souter:

Well, that may be, but that doesn’t help you out, I think, in a historical argument, which essentially is they understood at the time these clauses were enacted as part of the original Bill of Rights that there could be both these procedures, the criminal prosecution and the forfeiture.

Once you get into sort of later statutory amendments, whether its 1878 or 1978, that argument goes, and it seems to me that’s the point at which Justice Scalia’s question attains a very sharp focus.

Michael R. Dreeben:

Well, I don’t think the argument completely goes, Justice Souter, because the same rationales and justifications for the forfeiture of property that is used to facilitate a crime also are present in the forfeitures of property that were known to the common law, and the fact that the principle is being applied in the new context to respond to new problems that the common law hadn’t faced does not mean that it is something that would be unfamiliar to the Framers, and I think that–

Ruth Bader Ginsburg:

Mr. Dreeben, what was the basis in the Prohibition era when the distillery was taken?

Was that a different kind of… that was, I think, the most common instance of, you have a prosecution against the manufacturer, a criminal prosecution, and you take the property.

Was that under a civil forfeiture, or–

Michael R. Dreeben:

–Yes, that was under a civil forfeiture, and what that led to was this Court’s decision in Various Items v. United States in 1931, in which the Court examined a claim that’s virtually indistinguishable from the claim that’s being made here today that the forfeiture of property following a criminal conviction of the owner of property constituted a violation of the Double Jeopardy Clause, and the Court rejected that contention by reference to the very ancient traditions of in rem forfeiture which had been recognized by this Court in a variety of cases such as the Palmyra and the Brig Malek in the 19th Century, that that supported the treatment of such forfeitures as not sufficiently punitive as to trigger the Double Jeopardy–

Anthony M. Kennedy:

–Suppose, Mr. Dreeben… suppose, Mr. Dreeben, you had a case in which there was a forfeiture against the owner of a property because the property had been used for a drug transaction but the owner was not criminally liable.

The owner, say, was culpable in that it knew what was going on, but was not criminally liable.

Would the excessive fines analysis of Austin apply in that case?

Michael R. Dreeben:

–Yes.

Anthony M. Kennedy:

Could the owner of the property say, this is excessive because, what, you are punishing the other person–

Michael R. Dreeben:

Well–

Anthony M. Kennedy:

–excessively, or you’re punishing me excessively compared to what the use of the property was?

Michael R. Dreeben:

–This Court has not articulated what the proper test or measure of excessiveness is under the Eighth Amendment.

The Government’s position is that the proper approach to analyzing that question is as stated in Justice Scalia’s concurrence in Austin.

Namely, to look at the depth and extensiveness of involvement of the property in the offense.

Anthony M. Kennedy:

But my question is, do we apply that analysis at all to the owner who’s not guilty of a crime but who nevertheless is sufficiently aware of the drug proceeding so that the forfeiture is being permitted–

Michael R. Dreeben:

Yes–

Anthony M. Kennedy:

–assuming that culpability is required.

Michael R. Dreeben:

–I think that that is the necessary consequence of Austin, that there is Eighth Amendment analysis that can be invoked at the behest of the owner of the property, who is the only one who has any real property stake in the forfeiture itself, and that that person–

Anthony M. Kennedy:

Even though that owner did not commit any crime at all.

Michael R. Dreeben:

–That’s correct.

That’s correct.

Well, the purpose of the forfeiture, both historically and as applied today, is in rem.

It is an action against the property, and the theory of it is that the property has been used sufficiently substantially in the commission of the offense such that forfeiture is justified for three historical reasons that are equally applicable here.

The first is that it does encourage property owners to take care in the use of their property.

The second is that the forfeiture can serve to abate a nuisance.

If, for example, there is a house being used extensively for the dealing of crack cocaine, the Government can move in and, through civil forfeiture, bring an action against the property and abate that nuisance, and the third goal is to provide indemnity to injured parties.

In this case, the injured party through these violations of the law is the Government itself.

David H. Souter:

But of course, the Government can do all of those things consistently with a double jeopardy analysis if it does them, as it were, at the right time, so this is not a case in which you say, well, if you apply the punishment analysis here and say the cause applies, these historical objectives of the Government are precluded, because they’re not.

Michael R. Dreeben:

Well, they are in a very practical sense, Justice Souter.

Criminal forfeiture is not an adequate substitute for the civil forfeiture remedies that we use, and I would add–

David H. Souter:

No, but you simply have to bring them in a coordinated proceeding.

Michael R. Dreeben:

–Well, and I would submit that we have done so in these cases.

David H. Souter:

Well, that may be, but I mean, the only… my only point is that there… you don’t have here a case in which, if we… if our position on this point does not prevail, these objectives are in effect precluded, because that… all I’m saying is, they’re not.

Michael R. Dreeben:

Well–

William H. Rehnquist:

But you may have just such a case if, in fact, the Court were to decide that these were not parallel proceedings.

If you’re ruled against on both points, then I think your point would be taken.

Michael R. Dreeben:

–Well, then I think we would have a very, very significant practical problem if we were not permitted to use the alternative remedies, because criminal forfeiture is no substitute for civil forfeiture.

Ruth Bader Ginsburg:

It’s rather new, isn’t it?

We haven’t had criminal forfeitures.

Michael R. Dreeben:

That’s correct.

In this country there was no tradition of criminal forfeiture, criminal in personam forfeiture until 1970.

The major difference in these kinds of actions is that the in rem action brought civilly is against the property.

The Government does not need to know specifically who the owner of it is.

Ruth Bader Ginsburg:

Mr. Dreeben, mechanically, how does it work out in the district courts and the U.S. Attorney’s Office?

I don’t know of any proceeding in the United States, although certainly it’s common abroad, where a civil claim gets tried together with a… with a criminal case, even in the division of labor that we now have.

Who attends to the forfeiture?

Is it the people in the Criminal Division or the Civil Division?

Michael R. Dreeben:

Forfeitures can be handled out of either as an administrative matter, and in some U.S. Attorney’s Offices the Criminal Division does it and coordinates it extensively with the criminal case.

In other U.S. Attorney’s Offices it’s handled out of the Civil Division, still with a general view to coordination with the criminal case.

Anthony M. Kennedy:

Does the DOJ have guidelines for when it will pursue criminal as opposed to civil forfeiture?

Michael R. Dreeben:

We do not.

We have extensively been turning to criminal forfeiture in the wake of the decisions in these cases and decisions following them because the double jeopardy problems that have surfaced as a result of these rulings are truly enormous.

We–

Anthony M. Kennedy:

If you wanted to proceed by criminal forfeiture and there were one criminal defendant but two owners of the property, could the… is there some intervenor procedure where the noncriminal defendant can somehow be involved in the criminal proceeding?

I don’t see how that would work.

Michael R. Dreeben:

–I think it would not work, because when we initiate the civil forfeiture action we bring it against the property.

We give notice both to the world and to anyone who we believe is an owner, and those persons can then come into the case and attempt to establish either that we haven’t shown probable cause, or that they have an innocent owner defense, but civil forfeiture enables us to move in in situations where we really don’t know who the owner is.

For example, if we break up a substantial drug ring and we recover numerous bank accounts, cars, nominee securities accounts, other means of transportation that may be titled in nominee’s names, we’re not entirely sure who all the owners of it are.

We can go in, seize the property, initiate an in rem action, give notice to the world, and allow the owners to come in.

If we were attempting to use criminal forfeiture for the same purpose, we could have a serious problem when we do not have a good faith basis to go to a grand jury and say, we think that this individual is the owner of the property and that we should include a count in the indictment that would authorize forfeiture of it, so there is a very significant drawback that we have.

William H. Rehnquist:

For criminal forfeiture you have to have an indictment?

Michael R. Dreeben:

Yes.

The Federal Rules of Criminal Procedure require that the forfeiture be alleged and set out in the indictment, and this Court discussed in the Libretti case earlier this term some of the requirements that follow from that.

But at the end of the day, in an in personam criminal forfeiture, what we are entitled to get is the interest owned by the defendant.

Michael R. Dreeben:

We cannot go in and bring, through a criminal action, what is the equivalent of an in rem action to quiet title as against the world, because the owner of the property whose interest can be forfeited is only the defendant himself.

So if we do come across, for example, a house that’s being extensively used for drug dealing and for traditional remedial aims, we want to go in and shut it down.

We can’t do that at all through criminal forfeiture in any kind of an expeditious way.

Criminal forfeiture helps us largely at the end of the process, when it can truly be imposed as a punishment for punitive purposes, but the in rem tradition has typically been viewed as serving very substantial remedial, legitimate aims of the civil law and it therefore is not sufficiently punitive to be characterized as punishment under–

Stephen G. Breyer:

On that reason, what are the aims?

The aims in the case of instrumentalities, you forfeit an instrumentality because–

Michael R. Dreeben:

–There are three reasons–

Stephen G. Breyer:

–Yes, well, three, the same three reasons apply for the purposes of criminal punishment.

It sounded as if you were talking about deterrence, incapacitation, and then something that you called restitution, but it’s a little hard to see how it’s restitution when you’re giving a house that somebody owned, say to the Government of the United States.

The United States never owned that house before, so I suppose that in that case it’s just the first two, and those are also aims of criminal punishment.

Michael R. Dreeben:

–Well, I don’t… there are purposes that are served by both civil and criminal law, and I don’t think that any purposes are–

Stephen G. Breyer:

Yes.

Yes, of course, that’s exactly… exactly, so that being so, if this looks just like a punishment, taking the person’s house away, perhaps for good reason, and what, then, is the reason not to treat it like punishment?

Is it… punishment for double jeopardy purposes.

Is it solely historic?

Michael R. Dreeben:

–It is not solely–

Stephen G. Breyer:

Or is there anything other than historic?

Michael R. Dreeben:

–It is not solely historic.

Stephen G. Breyer:

I’m not saying just that.

I want to know if there’s anything other than history.

Michael R. Dreeben:

I think that there is.

Stephen G. Breyer:

What?

Michael R. Dreeben:

I think that there is reason itself.

The primary aim of the criminal law is to… is retribution and deterrence.

Those are its primary aims.

When one speaks about abating a nuisance, that, of course, also can be analogized in some way to incapacitation, but it’s really quite different from incapacitation, particularly when the object of the action is property itself that is being misused in a certain fashion.

Stephen G. Breyer:

And then that’s why we put people in prison, because they’re misusing themselves, and so they can’t do it again while they’re there, and we want people to take good care of the property, so we deter them… I mean, it sounds awfully similar to me, and also it’s so natural to say, taking the house away from the person and giving it to the Government is a punishment, but I don’t know that that ends your case, and even if that’s so, you have… and I just want to get out from you all the possible differences.

One is–

Michael R. Dreeben:

Well–

Stephen G. Breyer:

–is the purposes.

Stephen G. Breyer:

I got that.

The other is the history.

Is there anything else?

Michael R. Dreeben:

–I think that once you are talking about the purposes and the history, and this Court’s cases, you are essentially covering the issue, but it’s not to be lost sight of that this Court said as recently as the Bennis decision that deterrence is an aim distinct from any punitive purpose, and it has always been true in civil forfeiture law that deterrence has been a recognized purpose and aim.

In the Brig Malek decision in 1844, Justice Story, describing the purposes of civil forfeiture, said that it was to suppress a wrong or offense, and to provide indemnity to the injured parties, and those purposes are equally parallel to this case.

The Government loses substantial funds both in a sense of investigating and detecting and prosecuting funds, prosecuting crime, that it cannot otherwise recover easily from criminal defendants.

Antonin Scalia:

Mr. Dreeben–

–But deterrence is also, you know, the purpose of any punishment.

I mean, that doesn’t distinguish this from other punishments.

Michael R. Dreeben:

I think that–

Antonin Scalia:

Almost any punishment I can think of has a deterrence purpose.

Michael R. Dreeben:

–Punishment will always have a deterrent purpose, but merely having a deterrent purpose is not sufficient to brand a sanction as punitive for purposes of the Double Jeopardy Clause.

Ruth Bader Ginsburg:

Mr. Dreeben, tell me if my fix is this is wrong, but I thought that part of the old idea was not just that you reify the thing, but that you arrest the thing so it’s no longer accessible to anybody, and that’s the Prohibition era.

You stopped the still, the distillery.

The criminal process is going to take a long time, but if stopping the still means that you can’t go forward with the criminal prosecution, that certainly changes things, so… but you didn’t mention that as one of the reasons for the forfeiture is to stop the use of the facilities by the person who will then be prosecuted.

Michael R. Dreeben:

Well, I meant to do that, Justice Ginsburg, in stating that it serves the traditional purpose of abating a nuisance, of preventing the ongoing commission of the crime, which is quite similar to what this Court described as the purpose of the forfeitures in Bennis, and was quite similar to the purposes of the forfeitures that were imposed in the common law era, and then later pursuant to statutes in this country.

David H. Souter:

But of course, that doesn’t help you out in a proceeds case, because the Government is going to put the proceeds right back in circulation.

Michael R. Dreeben:

Well, I… that’s right.

David H. Souter:

You’re not putting anything out of commission there.

I suppose your argument on the proceeds case… I didn’t mean to get into this, but I suppose your argument in the proceeds case is something akin to contraband that you don’t have a right… no one should be deemed constitutionally to have a right to proceeds of criminal activity, and therefore when you take it away that should not be regarded as punishment.

Michael R. Dreeben:

Exactly right, Justice Souter, and although that had not been traditionally accomplished through forfeiture, it had been traditionally recognized as no issue under the Fourth Amendment whatsoever for the Government to seize the proceeds that a robber derives when he goes into a bank and comes out with money.

David H. Souter:

But that’s different from the drug sale proceeds, though, because in the robber case you’re going to give the money back to the bank, as Justice Breyer said.

You really are engaging in a restitution.

Michael R. Dreeben:

One would hope.

David H. Souter:

Yes, we do hope it gets back there,–

But I mean, here, there’s no way, in effect, to restore the proceeds to individuals.

In fact, they were not taken in the… by… in any way that bears analogy to the bank.

Your argument, as I understand, is that you are restoring the proceeds to society, but that is not like restitution, and I just think the analogy is closer to the contraband than it is to restitution.

Michael R. Dreeben:

I think that both analogies work, although the concept that I was trying to describe is that of simply that depriving the wrongdoer of the ill gotten gains that he has derived from criminal activity is not punishment.

It simply restores the status quo ante of that person had he not engaged in the criminal activity at all.

Anthony M. Kennedy:

If it’s not punishment, then does that mean it’s not for an offense?

Michael R. Dreeben:

It could be conceived of as not being for an offense, but I think–

Anthony M. Kennedy:

Or is the better argument that it’s not the same offense?

Michael R. Dreeben:

–I think that strictly speaking, as proceeds, the reason why it’s not punishment is that the owner of money derived from crime has no right to retain them at all.

But it is also our position that, even if one takes this as a straightforward Blockburger case and applies normal double jeopardy rules, that the in rem forfeiture is not the… it’s not an offense at all, and it is not the same offense as the underlying criminal indictment of the owner of the property.

I think that’s so most simply for the following reason.

If in rem forfeiture is conceived of being an offense by a person, it can only be the owner of the property who must be viewed as the nominal defendant.

The question, then, that has to be asked is, what do we have to prove in an in rem action in order to sustain our burden of taking the property with respect to that individual, and the answer is nothing.

We do not have to prove that that person engaged in a crime or did anything wrong.

All we have to do is show that the property was used in the criminal activity.

And so to take the facts of this case, where Mr. Ursery and his wife and his son were all coconspirators in manufacturing marijuana, we could have taken the property in our forfeiture action based on his son’s activities, without proving anything as to him, and there is therefore no necessary requirement that we prove any culpable action or any state of mind as to the owner of the property in the in rem action.

In contrast, that is the whole ball of wax in the criminal case.

We must prove that the defendant in the criminal case engaged in the act with the requisite mental state.

Anthony M. Kennedy:

Mr. Dreeben–

–So on that line of reasoning, it’s not the same offense.

Michael R. Dreeben:

That is correct.

Anthony M. Kennedy:

Even conceding it’s an offense.

Michael R. Dreeben:

That’s right.

Anthony M. Kennedy:

Which you don’t concede.

Michael R. Dreeben:

That’s right.

David H. Souter:

Mr. Dreeben, isn’t the… I think I follow what you’re saying.

The difficulty I have with it is that that doesn’t seem to be the way the Court analyzed the problem in Brown and Ohio, because in Brown and Ohio, if… the Court in effect said, well, you look to the way it was proved in this case, and in this case it was the owner of the property, and in fact all of the elements except for the further additional element that is raised by the forfeiture proceedings were shown.

If we follow a Brown and Ohio kind of double jeopardy analysis, then I think we have to go the other way.

Michael R. Dreeben:

I think Brown v. Ohio, Justice Souter, really addresses a quite distinct problem.

In a Brown v. Ohio situation, the Government is necessarily going to have to prove that the defendant in that case committed some felony which was then aggravated by the death resulting, and as a result the crime is called felony murder.

And this Court’s holdings is that, even though felony murder subsumes all of the different felonies that that defendant may have committed, it doesn’t matter which one the Government proves, it’s as if there are as many separate crimes in the criminal code as there are predicate felonies, each one aggravated if death results.

Whereas in the civil forfeiture case, we never have any burden of proof with respect to the owner of the property, the person who is supposedly punished by this “offense”, and as a result, it seems very strange to say that it is a… the same violation that would be proved by the Government in a criminal case brought specifically in personam against that defendant.

John Paul Stevens:

But Mr. Dreeben, isn’t that only half of the Blockburger test?

The forfeiture does not include an element that’s necessary to be proved in the criminal case, but what does the criminal case include… I mean, but it doesn’t work the other way around, does it?

Michael R. Dreeben:

Well, it does, Justice Stevens, because we aren’t required to prove that any property was used in a violation in order to obtain a conviction.

Michael R. Dreeben:

What we are required to prove is that the defendant did the act.

In the forfeiture case–

David H. Souter:

Where the act involves the use of property.

Michael R. Dreeben:

–No, the act does not necessarily involve the use of–

David H. Souter:

No, it involves the possession of the drugs, or possession of proceeds, whatever the case may be.

Michael R. Dreeben:

–Well, I–

David H. Souter:

The money that is laundered, or whatever the case may be.

You can’t prove an offense without proving some sort of possession.

Michael R. Dreeben:

–No, I think that you can–

John Paul Stevens:

But you’re saying that you don’t have to prove that the act was committed on a particular piece of property.

Michael R. Dreeben:

–We don’t have to prove any particular piece of property, and in fact, ironically enough, in this very case Ursery’s criminal conviction arose out of his manufacture of marijuana on somebody else’s property, and thus, even looking at the question of whether the same offense exists on the very facts of the case, the civil forfeiture in this case and the criminal violation were not the same offense.

David H. Souter:

No, but the basis for your forfeiture of the house was that he was in fact using the house, his own property, in drying the marijuana.

You’re–

Michael R. Dreeben:

That is the basis of the forfeiture.

David H. Souter:

–Neither the forfeiture nor the criminal offense had anything to do with the fact that the marijuana was being grown across the property line.

Michael R. Dreeben:

No, the criminal offense had everything to do with the fact that the marijuana was being grown on somebody else’s property.

David H. Souter:

Why?

Michael R. Dreeben:

That was the basis of the criminal case.

The civil case had to do with the property’s use–

David H. Souter:

You mean there was a separate offense of growing marijuana on someone else’s property?

Michael R. Dreeben:

–Yes, and that is exactly what the indictment charged.

David H. Souter:

Literally, there is?

I didn’t realize that.

Michael R. Dreeben:

Well, the–

Ruth Bader Ginsburg:

Mr. Dreeben, I thought you were indicting him criminally for only part of the conduct that was involved in the forfeiture.

That’s what I understood.

Michael R. Dreeben:

–I think that’s exactly correct, Justice Ginsburg.

That’s simply on the facts of this very case, but I think that it does illustrate that in the criminal case we do not need to prove anything about his ownership of property, or his use of any particular property, and I think the Blockburger point is even more clear in the proceeds cases, because in those cases we’re required to show that the defendants conspired to or did engage in substantive drug violations, but we’re not required to show how much money they made, what property they used in those violations, or anything else, and the moneys–

David H. Souter:

The money laundering case, however, even on your analysis, that would be different.

Michael R. Dreeben:

–A money laundering case would be different to that extent, yes, but it would still not be the same offense as the forfeiture offense for the reasons that I’ve described.

Stephen G. Breyer:

Manufacturing?

Michael R. Dreeben:

Excuse me?

Stephen G. Breyer:

Manufacturing?

Suppose the crime is manufacturing.

You’d not have to show what he used to manufacture?

Michael R. Dreeben:

No, and you don’t have to show that he used any particular property, or that he owned the property that was involved in the offense.

The more fundamental reason why we think that it is inappropriate to regard the forfeiture as a greater offense which can preclude a subsequent criminal prosecution is that that turns the entire notion of what a greater offense is on its head.

Normally, when the Government brings a criminal charge for a greater offense and fails to prove the additional element that makes it a greater offense, the court can reduce a conviction to the crime of the lesser offense, or the jury could be instructed to return a verdict on the lesser offense.

That plainly cannot happen in any case in which the Government brings a civil in rem forfeiture action, and it underscores the oddity of characterizing civil forfeiture as a greater offense that can have this very dramatic consequence of barring any criminal prosecution of the property’s owner based on the same underlying facts.

And finally, I would like to return again to the fact that we do also argue that the two proceedings that were brought in each of the cases before the Court were sufficiently contemporaneous so that they should not be viewed as successive proceedings that invaded any legitimate expectation of finality that the defendants in these cases have.

When this Court in Halper prescribed a new rule that had not really been recognized in any prior case law that forbid multiple punishments from being pursued in separate proceedings by the Government, it explained that the reason why two proceedings is important is that it was to prevent the Government from seeking the second sanction because it was dissatisfied with the outcome of the first.

That cannot be said of any of the proceedings in these cases.

The Government in the 405 case out of the Ninth Circuit brought the criminal indictment and the civil forfeiture complaint within 5 days of each other.

It brought the civil forfeiture complaint in the Sixth Circuit case within 4 months of the criminal prosecution, and the civil forfeiture action was settled by Mr. Ursery before he went to trial on the criminal offense.

The Government clearly had made evident its intent to seek both of these familiar, traditional, parallel remedies against the defendants from the very outset of these proceedings, and the defendants never could have had any expectation that they would not be subject to the full range of authorized sanctions that were provided in Federal law.

David H. Souter:

What about the argument that the other side made that if that is a sound argument you could make the same argument with respect to two parallel criminal prosecutions?

Michael R. Dreeben:

In a criminal case what would emerge to prevent that is the protection against successive prosecutions.

The Government cannot, once jeopardy has attached in a case, pursue a separate criminal offense based on the same underlying offense against the defendant, because the rule of successive prosecutions would prevent that, and I think that that underscores that what the respondent–

David H. Souter:

That assumes that in the civil case there isn’t a successive prosecution within the meaning of those terms–

Michael R. Dreeben:

–That’s correct.

David H. Souter:

–because it’s not punitive.

Michael R. Dreeben:

That… no, I think it assumes that because the successive prosecutions rule has always been limited to two criminal cases, and what the respondents–

David H. Souter:

That gets us right back to Justice Scalia’s question.

Where is the principle of coherence in saying that, number 1, there is punishment for purposes of one clause but not of another?

Translated into this particular instance, where is the coherence of saying that something, the object of which is punishment, is criminal for one purpose but not for the other?

Michael R. Dreeben:

–Justice Souter, the Court’s conclusion in Austin that civil forfeiture was sufficiently punitive to be judged under the Eighth Amendment specifically and explicitly recognized that civil forfeiture was not and never had been recognized as a criminal proceeding.

If it was, we would have a very serious double jeopardy problem, but it would have been one that the Framers themselves had dictated in statutes that were enacted shortly after the Constitution and shortly after the Bill of Rights, and that had escaped everyone’s notion for 200 years until United States v. Halper came down.

David H. Souter:

But doesn’t that leave us… I mean, Halper has come down, and doesn’t it leave us, on your reasoning, in a position of incoherence, of saying, on the other hand, yes, it is punitive, but not for purposes of defining the prosecution or the action in which it is going to be enforced as a criminal action?

Michael R. Dreeben:

I think that Halper does–

David H. Souter:

That strikes me as just intellectually incoherent.

Michael R. Dreeben:

–Halper does produce a variety of very strange results, and that is why this Court should–

Ruth Bader Ginsburg:

But wasn’t it itself a hybrid?

The Court didn’t say this is a criminal proceeding.

It says, this is in part civil.

It’s only to the extent that it was too much.

Michael R. Dreeben:

–That is correct, and it did that in the context–

David H. Souter:

But we’re talking about the extent to which it is too much.

Michael R. Dreeben:

–I think that the question in Halper was to specifically note it as a rule for the rare case.

What the courts below have done is transform it to a rule for the general case.

If I could reserve the remainder of my time–

William H. Rehnquist:

Very well, Mr. Dreeben.

Mr. Finer, we’ll hear from you.

Jeffry K. Finer:

Mr. Chief Justice, and may it please the Court:

Two decades ago Congress passed really what was the first ever proceeds forfeiture statute, and before this time, forfeitures were handled either against contraband in a remedial fashion because the item was either inherently dangerous or its use was criminal in and of itself, or the forfeitures were against property used to facilitate a crime.

The proceeds statute, the new one, takes the money that’s either used for an illegal transaction and gained from its transaction or money that’s merely intended to be used for the transaction.

Nevertheless, there are similarities, and I wanted to start with those.

Like the predecessor forfeiture statutes, the 1978 proceeds statute was labeled civil, and it invoked a fiction of in rem jurisdiction, and this Court has provided us with clear direction in the last decade what we do with those labels and what we do with those fictions.

We look at underlying–

William H. Rehnquist:

Mr. Finer–

Jeffry K. Finer:

–Yes.

William H. Rehnquist:

–the Government argues here and it argued in its brief that our 1931 decision in Various Items is controlling.

You do not even mention that case in your brief, and I don’t believe your colleague does, either.

Jeffry K. Finer:

That’s correct.

The 1931–

William H. Rehnquist:

Would you tell me why?

Jeffry K. Finer:

–Yes, I can.

The Government argued just moments ago at the podium that the decision in the 1931 case was that the forfeiture was so… was not so punitive as to invoke double jeopardy, and that is not the holding of Various Items.

Various Items got to the actual point that the Court was at when it reached Halper, but Various Items stopped, Justice Sutherland stopped and said, but this penalty, this punishment is in rem, and I point out to the Court, in Various Items, the Court in 1931 had no problem saying this tack… excuse me, this still, the taking of it, had punitive aspects, but it was in rem, and on that label the Court stopped.

The modern Court–

William H. Rehnquist:

A civil forfeiture–

Jeffry K. Finer:

–Civil forfeiture.

William H. Rehnquist:

–just like the Government has brought here.

Jeffry K. Finer:

Oh, I do not disagree that they are remarkably analogous cases.

William H. Rehnquist:

But then, why didn’t you mention it in your brief?

Jeffry K. Finer:

In part because the modern test does not even address the labels, Your Honor.

The test devised by this Court in two unanimous decisions–

William H. Rehnquist:

Well, but Various Items was a unanimous decision, too, and neither Halper nor Austin made any reference to it with a sense of overruling it.

Jeffry K. Finer:

–That’s correct, and in fact did not seem to use it for support, either, and so we see no support for the argument either way.

If any case is undermined in the modern jurisprudence, if any single case can be undermined, I would concede it is Various Items, but that issue has been dealt with clearly in Halper by rejecting the labels jurisprudence.

Ruth Bader Ginsburg:

Mr. Finer, the decision that you’re defending started out on a very candid note.

It said, 10 years ago the law was clear civil forfeiture was not punishment for double jeopardy purposes.

Do you agree with Judge Reinhardt as to that?

Jeffry K. Finer:

I agree that civil forfeiture was not.

I do agree with that.

Other types of penalties had been addressed by this Court and deemed–

Ruth Bader Ginsburg:

But all of these things are called civil forfeitures.

Jeffry K. Finer:

–That’s correct.

Ruth Bader Ginsburg:

Halper was called that.

Austin was called that.

Jeffry K. Finer:

I agree.

Stephen G. Breyer:

Various Items dealt with instrumentalities.

I take it Halper did not deal with instrumentalities, or proceeds.

Jeffry K. Finer:

That is correct.

Stephen G. Breyer:

Well, does that matter, because traditionally, I take it the Government traditionally, the civil forfeiture has been against proceeds or instrumentalities, and does that fact mean that we shouldn’t take Halperin as really undermining Various Items?

Jeffry K. Finer:

Well, let me correct that.

Traditionally, civil forfeiture has not been used against proceeds.

The only thing even remotely close to it have been the–

Stephen G. Breyer:

Instrumentalities.

Jeffry K. Finer:

–The instrumentalities.

There have been cases applying a tax, in effect.

Jeffry K. Finer:

In fact, the case decided the same day as Various Items, which is LaFranca, was a fixed tax which the Court quickly said, this may be called a tax, but the label’s not important, it is a penalty.

Stephen G. Breyer:

My thought is, if the Government’s claim is primarily historical, and also based on precedent and history, then we look to the later cases and we’ll have to say, are they consistent or inconsistent, and then I suddenly did notice, and don’t know what to make of it, that the Halperin, et cetera, is not… is not the historical context.

It was a civil remedy against some fraud.

Jeffry K. Finer:

That’s correct, in 18–

Stephen G. Breyer:

Right, and so I wonder what to make of that, in your opinion.

Jeffry K. Finer:

–I think what we make of that is, when we have a statute such as the one used in Halper, which was the False Claim Act, that dates from roughly 1863, a Civil War era action to deter and punish those who might excessively defraud the Government, and in that case the Court did not have a historical precedent to look at.

This was not historical forfeiture.

This was a brand new statute, and in that setting, Justice, the Court applied the analysis that I would urge it to apply today, the one applied unanimously in 1989, and that is, first look, what was the historical setting?

Forfeitures in the historical setting have been to punish.

That’s the first step, but it’s not the last one.

The next step is, well, historically punishing, what’s this one for, and Halper and Austin together show us the next line of inquiry.

Is it tied to the commission of an offense?

Well, it is.

Ruth Bader Ginsburg:

Mr. Finer, I don’t quite grasp that, because the flavor of the two cases seems to be remarkably different.

Halper says this is a rule for the extraordinary case, for the rare case.

Jeffry K. Finer:

Yes.

Ruth Bader Ginsburg:

For the one of a kind.

Jeffry K. Finer:

Yes.

Ruth Bader Ginsburg:

And then Austin seems to be a rule for every case.

Jeffry K. Finer:

And yet they are entirely harmonious, for this reason.

In Halper, the Court was not dealing with a historical punitive statute.

The False Claims Act was historically remedial, and so there is a test for that circumstance.

When it is historically remedial, you go to Halper.

The rare case may be so disproportionate as to be a punishment, but in the modern case of forfeiture, we know that it is not inherently remedial.

It springs from a root that has been punishment for at least the last 200 years.

William H. Rehnquist:

Well, certainly in Bennis we said that there can be a deterrent or a remedial purpose.

Jeffry K. Finer:

Yes, and in Bennis the deterrence… the language is very interesting, because clearly there are different types of deterrence.

There is general and specific, and the Court–

William H. Rehnquist:

Why do you say there’s general and specific deterrence?

We certainly never said that in Bennis.

Jeffry K. Finer:

–You… that… those words are not used, and yet the flavor of deterrence that’s described in Bennis, the remedial form, makes sense only if that decision is made, and for this reason: deterrence is a forward looking concept.

There’s no sense of deterring what’s already occurred.

One deters future conduct, and in that sense deterrence is a remediation, it’s to prevent a future matter, but deterrence in the specific sense, Chief Justice Rehnquist, is to aim at the one who has violated, and it has a backward component.

It has a component–

William H. Rehnquist:

Well, you can’t deter him in the sense you used in the first… putting a person in jail may deter him in the future, but it doesn’t do anything about his past conduct.

Jeffry K. Finer:

–No, and because it does not do anything about its past, the special deterrence case is punitive, and that’s why deterrence comes up in the cases.

William H. Rehnquist:

Well, but that simply isn’t what Bennis said.

Jeffry K. Finer:

That’s true.

William H. Rehnquist:

And I think your extrapolation out of it… is it based on some case that we have decided?

Jeffry K. Finer:

No.

I’m trying to harmonize the language in Bennis about deterrence with this Court’s language in other cases which were unanimously decided, in which the term punishment has been described–

William H. Rehnquist:

What are those cases?

Jeffry K. Finer:

–Well, Austin, for instance.

William H. Rehnquist:

Well, Austin wasn’t unanimously decided.

Jeffry K. Finer:

That… no, I beg your pardon, Chief Justice.

In which the term deterrence has been linked inexorably in instance after instance with the concept of retribution, and those two concepts are the definition of punishment.

Ruth Bader Ginsburg:

Mr. Finer, with respect to Bennis, it seems to me that your argument goes this way.

The car was forfeited.

Then John Bennis was prosecuted.

He should have moved to dismiss on double jeopardy grounds, and he would have been successful under your argument.

Jeffry K. Finer:

I’m not clear he would have been–

Ruth Bader Ginsburg:

Why not?

Jeffry K. Finer:

–and for this reason.

In… this Court in the Bennis decision made a point of adopting the State’s highest court’s determinations.

What was the character of that statute?

Now, the statute that took the car was considered as an abatement, an equitable statute, and when that’s the case, well, that Court has ruled.

This Court has said, at least as to 881(a)(4) and (a)(7), that we’re dealing with punishments and, in fact, forfeitures are dealing with… dealt with–

Ruth Bader Ginsburg:

Then there’s a question of what label you put on it?

Jeffry K. Finer:

–No–

Ruth Bader Ginsburg:

It seems to me taking that car was not so different from taking one Plymouth whatever, or one Ford Victoria.

Jeffry K. Finer:

–I completely agree, and from the subjective standpoint it feels the same, I’m sure.

However, the authorizing statute springs from a congressional purpose, and it springs from a particular history.

Now, in Michigan the purpose was an abatement, and that is remedial, and I have no qualm with that.

Anthony M. Kennedy:

If you had a forfeiture under the Federal statutes of an automobile and the judge gave some erroneous instructions, could the Government appeal if it lost in the case?

Jeffry K. Finer:

I’m not clear.

Instructions in the forfeiture case?

Anthony M. Kennedy:

Yes.

The Government–

Jeffry K. Finer:

Ah.

Anthony M. Kennedy:

–I take it a forfeiture case is tried by a jury–

Jeffry K. Finer:

Yes.

Anthony M. Kennedy:

–a civil forfeiture case?

Jeffry K. Finer:

Yes.

I understand the question.

Would the Government have a right of appeal, or would the jury’s verdict be sacrosanct against even–

Anthony M. Kennedy:

Yes.

Jeffry K. Finer:

–court error?

An interesting hypothetical, and I think the question would be the Government could, because this is not the case where we are arguing that Sixth Amendment essential criminal properties, or essential criminal protections apply.

We’re not suggesting that the Kennedy Ward pervasively penal test applies here, and consequently–

Sandra Day O’Connor:

But that’s the next logical step.

I mean, if you move in the direction of saying that every civil forfeiture, every so called civil forfeiture is, in fact, punitive, the next step is to apply the proof beyond a reasonable doubt and the other requirements for prosecuting criminal actions?

And in fact, in the case I put to you it is really a double jeopardy concept.

Jeffry K. Finer:

–Yes, where you could not be tried again after the jury’s acquittal.

William H. Rehnquist:

Yes.

Nor can the Government appeal from a jury’s acquittal in a criminal case.

Jeffry K. Finer:

I quite understand.

William H. Rehnquist:

So why do you say it could appeal in a civil forfeiture case?

Jeffry K. Finer:

If it were taken as a double jeopardy analysis, and if I understand the Justice’s question at this stage, Justice Kennedy, I would change the answer, and it’s not a hypothetical–

Anthony M. Kennedy:

No, no–

Jeffry K. Finer:

–and I have to agree.

Anthony M. Kennedy:

–it’s a civil forfeiture proceeding.

Jeffry K. Finer:

Right.

Anthony M. Kennedy:

But I think it follows from your argument that the Government could not appeal.

Jeffry K. Finer:

If we agree that the error by the trial court presents a second jeopardy, then I do agree, and the test we have used in preparing–

Anthony M. Kennedy:

Has that ever been held in any case in the–

Jeffry K. Finer:

–In a civil case?

Anthony M. Kennedy:

–Yes.

Jeffry K. Finer:

I’m not aware of any case that so holds.

There have been civil sanctions throughout this Court’s history that are held to be penalties and held to invoke the Double Jeopardy Clause, but I’ve not seen the circumstance you’ve described.

Stephen G. Breyer:

So what, then, is the harm?

I’m finding… what I find difficult is, I understand how one might label this punishment, fine, but I’m not certain that’s conclusive.

What’s the actual harm caused to individuals if the Court were to continue in the case of instrumentalities and proceeds to follow or to permit under the Constitution a basically civil approach?

After all, you don’t object to having this proceeding taking place quite near the time… does it have to be in the same courtroom?

Can it be that afternoon?

I mean, what’s the difference to an individual, as long as it’s basically a single model, whether it’s that afternoon, or 3 weeks later, or the day before?

What’s the basic harm that you’re worried about?

Jeffry K. Finer:

It goes to the actual harm that the text of the clause is intended to protect.

When you are twice, in some parallel or serial fashion, put in, some way, a separate proceeding, when you’re twice put in jeopardy of some punishment–

Let me take it as a practical matter.

Stephen G. Breyer:

–Yes, but you are… that’s my point.

You are twice put in jeopardy.

The main trial’s in the morning, the civil forfeiture is in the afternoon.

That’s twice, and you don’t object to that, and so why does it matter if, instead of it being the proceeding that afternoon, the proceeding was held 3 weeks later, or 6 weeks later, or 2 days earlier?

Jeffry K. Finer:

Justice Breyer, I’m not sure I would object if they were separate cases, whether they were–

Stephen G. Breyer:

Oh, so now it all has to be in the single case, and they have to have… in other words, it just has to be in front of the same judge, you’re saying.

Jeffry K. Finer:

–I’m not even sure the test is whether it’s the same judge, but let me provide what I think the test is.

Stephen G. Breyer:

What.

Jeffry K. Finer:

The test seems to be a single verdict test.

If you’re going to put my client through two verdicts… two factfinders or not, if you’re going to force my client to two verdicts, and in the preparation for the two verdicts, in one case you take all his property, which is what was done to my clients, and you do not provide counsel for that–

Stephen G. Breyer:

We don’t even have that rule in respect to sentencing.

Stephen G. Breyer:

The sentencing process takes place after the verdict is in.

Jeffry K. Finer:

–Quite right.

Stephen G. Breyer:

Yes.

Jeffry K. Finer:

From a single verdict.

But in this case, what the Government is doing, and has done to my clients and many like them, is put them to jeopardy in two verdicts.

If it were a single verdict, and Your Honor, it is… Justice Breyer, it is a single verdict when you go to court in a criminal forfeiture proceeding, which frankly feels pretty rough to my clients, but it’s not the same.

Stephen G. Breyer:

Well, it… actually, the sentencing often involves issues of great significance that were not present in the liability phase.

Jeffry K. Finer:

Absolutely, and in fraud cases, for instance, you don’t even get to the fine part of the fraud case.

You don’t even have evidence, necessarily, of the actual losses until after the verdict, and so I agree, there is an analogy, but what’s different here is, there are going to be two verdicts unless you capitulate.

Antonin Scalia:

Mr. Finer, what–

–With the same elements?

With the same elements?

Do you need the same elements in each case?

Jeffry K. Finer:

We think we do, and for this reason.

Antonin Scalia:

Neither one has an element that the other one doesn’t?

Jeffry K. Finer:

Well, yes.

We think it does under the Blockburger test, and we would provide the analysis that’s even more fundamental than Blockburger.

Let me illustrate it with what occurred in this case, although I would say it may be generalized to many cases just like it.

My clients were serving a life sentence for conspiracy to manufacture methamphetamine, and they were… they suffered forfeiture of all their property for the exact same activity, the same offense, the conspiracy to–

Antonin Scalia:

But it wasn’t necessary to prove that offense to get the forfeiture.

You could have proved any offense to get the forfeiture.

Jeffry K. Finer:

–It may have–

Antonin Scalia:

Using Blockburger correctly, Blockburger requires that the charge be a charge which would require the same offense.

Jeffry K. Finer:

–Yes–

Antonin Scalia:

Not simply that factually it happened to be the same one.

Jeffry K. Finer:

–I quite agree.

When, in Blockburger, you are comparing two different offenses, then you compare their elements to see if they are functionally the same, or lesser included.

Antonin Scalia:

Right.

Jeffry K. Finer:

But in Blockburger you have to have two offenses.

We don’t have two offenses.

Antonin Scalia:

That’s right, and just as in the Double Jeopardy Clause you don’t have any mention of punishment.

Jeffry K. Finer:

Well–

Antonin Scalia:

You started to talk about the text of the Double Jeopardy Clause.

That’s why we’ve been led into this difficulty.

You’re bringing in two cases in which you are not put in jeopardy for the same thing, not in the sense of Blockburger, but you’re just saying you can’t be punished twice.

Jeffry K. Finer:

–To the extent that your question, Justice Scalia, is whether there is a risk of conviction, that’s correct.

However, in Ex Parte Lange, and as recently as 2 weeks ago in Rutledge, it is not whether there is a conviction question… the $50 assessment fine in Rutledge was a punishment, and it–

Ruth Bader Ginsburg:

Mr. Finer, can I give you a specific example–

Jeffry K. Finer:

–Please.

Ruth Bader Ginsburg:

–It was one that Justice Scalia suggested in his Kurth Ranch defense… dissent.

A broker commits violations of the law, and he’s first administratively sanctioned with a fine, and his license is suspended, or he’s told he can never be a commodities broker again.

Then there’s a criminal prosecution against him for the identical conduct.

Under your reasoning, I take it that the criminal prosecution can’t get brought, or it can?

Jeffry K. Finer:

It can, Your Honor, because I would add–

Ruth Bader Ginsburg:

Because the first one is not penal?

Jeffry K. Finer:

–It would not be, because it would be seen as remedial.

It would be the Halper rare case model.

You would only ask, was the fine excessive?

The analogy to our case would be some fine or penalty that was traditionally, and as a practical matter, as Congress intended it now–

Antonin Scalia:

Why would it be seen as remedial?

Jeffry K. Finer:

–It’s a–

Antonin Scalia:

Because that gives you the right answer?

Jeffry K. Finer:

–Because it’s a disgorgement of a profit in that setting, which is not what the–

Ruth Bader Ginsburg:

No, it’s a fine.

No.

It’s an administrative sanction.

It’s a fine.

Jeffry K. Finer:

–All right.

Ruth Bader Ginsburg:

I gave you a case of… which is not unusual.

Somebody is–

Jeffry K. Finer:

I misunderstood.

Ruth Bader Ginsburg:

–Is both disbarred and fined, and the fine is meant to be punishing.

Jeffry K. Finer:

I understand.

Ruth Bader Ginsburg:

But it’s in a civil setting.

Then, prosecuted for the securities fraud or whatever.

Jeffry K. Finer:

I would agree, then, the subsequent prosecution for the same offense would be barred.

Ruth Bader Ginsburg:

On the–

Jeffry K. Finer:

It would be a punishment, and a second punishment, or rather the jeopardy of the second punishment, yes, and under the text of the clause, while it does not say punishment in its terms, the life and limb phrase has been long understood to mean a punishment, and the jeopardy part refers to risk.

And so in your hypothetical, Justice Ginsburg, yes, the fine, if it’s punishment followed by a attempt to prosecute–

Ruth Bader Ginsburg:

–Well, the fine doesn’t have… come self identifying.

We have to put a label on it, and it is meant not to return money to a specific pocket–

Jeffry K. Finer:

–So it’s–

Ruth Bader Ginsburg:

–but it’s a fine if you did something bad.

Jeffry K. Finer:

–It would not be a label, it would be an analysis that leads to a conclusion.

The analysis is Austin.

What’s its historical basis?

Is it any different–

Ruth Bader Ginsburg:

Austin is one case.

Jeffry K. Finer:

–Yes.

Ruth Bader Ginsburg:

What I… the example that I brought up, which is not original, is something that I think is pervasive in our system.

Jeffry K. Finer:

I understand–

Ruth Bader Ginsburg:

We have an administrative agency that licenses and sanctions, and then you can have a criminal prosecution for the identical conduct.

Jeffry K. Finer:

–I agree, and I would use the analysis from that one case, Austin, because the analysis is very workable.

You first look historically, was it historically used as a sanction… may I finish?

William H. Rehnquist:

No.

Your time has expired.

Mr. Robbins, we’ll hear from you.

Lawrence S. Robbins:

Thank you, Mr. Chief Justice, and may it please the Court:

In 1991 and 1992, Guy Jerome Ursery maintained six plots of marijuana plants about 250 to 150 feet outside the premises of his property, a 10-acre home in rural Michigan.

He harvested the plants, processed them, and apparently smoked them in his house, and that was his offense, and for that offense of manufacturing marijuana… which, by the way, does not turn on whether it was on another piece of property.

Lawrence S. Robbins:

You can take a look at title 21 and you will find that it does not turn in the slightest on the fact that it was on another piece of property.

For that offense, he was first subjected to a forfeiture of half the equity in his property under 881(a)(7), the very statute this Court construed in Austin, which permits the forfeiture of property used to commit a narcotics felony.

And as the parties were readying themselves for trial in the civil forfeiture, he was then indicted in a single count prosecution, which again charged the manufacture of marijuana, precisely the predicate in the 881(a)(7) forfeiture.

This time he was convicted and sentenced to 63 months in jail.

The Sixth Circuit held that the civil forfeiture under 881(a)(7) was punishment, the prosecution was a second punishment, and it was for the same offense and in a separate proceeding, and accordingly was barred by the Double Jeopardy Clause and, in our view, each and every step of that analysis is not only correct, but squarely controlled by this Court’s cases.

William H. Rehnquist:

Well, you, like Mr. Finer, didn’t mention Various Items in your brief, Mr. Robbins.

Lawrence S. Robbins:

Well, I think with all respect, Mr. Chief Justice, I believe Various Items is self distinguishing.

William H. Rehnquist:

Well, but ordinarily we expect counsel, when there’s a case that is called to their attention that bears on it, and particularly… to deal with it in some way.

Lawrence S. Robbins:

Well, again, Mr. Chief Justice, I’m happy–

William H. Rehnquist:

You felt it was just so far wide of the mark that it didn’t even deserve any mention?

Lawrence S. Robbins:

–Well, if I may, Your Honor, my view is that a reading of the case makes clear why it doesn’t control and, indeed, has made clear to this Court why it didn’t control in the cases that this Court has looked at since that case was decided, and after all, there were a great many cases cited in the Government’s 59-page brief.

We deal with as many as we thought were most germane, but–

William H. Rehnquist:

In what cases subsequent that have distinguished Various Items would you… are you referring to?

Lawrence S. Robbins:

–Well, no, I think quite the contrary.

I don’t think this Court has had occasion to revisit Various Items and tell us whether it’s distinguishable or it’s not, but I’m prepared to do so, because it seems to me that what Various Items tells us is that where a forfeiture, as in Various Items, does not turn in the slightest on the innocence of the owner of the property, then, in that event, it’s a civil forfeiture which cannot… to which one cannot ascribe a punitive dimension.

But of course, my statute, 881(a)(7), has an explicit exception for innocent owners which is, of course, the very distinction that this Court in 92 Buena Vista Avenue said makes this statute different from the historical forfeitures, including the one that was at issue in Various Items, the very fact that persuaded this Court in Austin to say that 881(a)(7) is punishment for purposes of the Eighth Amendment, something which at common law I think would have been as surprising to the Framers as some of the hypotheticals suggested by the Government.

Ruth Bader Ginsburg:

Are you suggesting that Various Items, if only it had had an innocent owner exception, would have come out differently?

Lawrence S. Robbins:

No, I–

Ruth Bader Ginsburg:

Then it would have been double jeopardy?

Lawrence S. Robbins:

–Well, let me say that’s not the only distinction.

I think that’s one important distinction, one that this Court has pointed to in several… in a couple of its recent cases, but I also think this–

Ruth Bader Ginsburg:

So you have to be really old fashioned, and then you escape the double jeopardy problem, but once you put in an innocent owner exception, then you are in this bind where the forfeiture proceeding will mean you can’t bring the criminal action?

Lawrence S. Robbins:

–Well, no, actually Justice Ginsburg, I don’t think that’s the complete answer.

Ruth Bader Ginsburg:

Well, you said that putting in the innocent owner exception types that statute as punishment in a way it wouldn’t if you just take it away from any old person, innocent or not.

Lawrence S. Robbins:

Well, surely that is a point of distinction.

I… by no means, however, is that the only thing that makes this statute punitive.

Indeed, it was not… it was only one of several factors that the Austin court, in a portion of its opinion that wasn’t fact unanimous, concluded turned 881(a)(7), my statute, the statute under which Mr. Ursery’s property was forfeited, into punitive… into a punitive sanction.

But apart from that, I think it’s also the case, Justice Ginsburg, if I may, that Various Items was decided in an era in which the fiction of in rem proceedings was taken, if I may say so, more seriously, and given a sort of… a treatment that sort of abstracted away from the fact that there is a real person whose property is being taken, and I think frankly Various Items might not come out the same way if viewed in the light of certain of this Court’s decisions since then that have said–

Ruth Bader Ginsburg:

Like Bennis?

Lawrence S. Robbins:

–Well, you know, I think, if I may, I don’t think Bennis really turns on the same fact… you know, the same issues that are at stake here.

Lawrence S. Robbins:

To me, Bennis is a question of whether the Due Process Clause requires, as a substantive matter, that an owner of property have an innocent owner defense, and the Court, you know, hearkening back to the long line of cases, said that it’s not required, but when it’s present, surely that’s some indication that you have a punitive sanction.

Ruth Bader Ginsburg:

That seems to me very strange that you would say that a statute that is trying to be modern have an innocent owner exception gets you into the double jeopardy bind, but if it’s like the Bennis statute that didn’t give you that exception, then you’re… then the Government is okay.

Lawrence S. Robbins:

Well, again, let me say, I am by no means suggesting that that is the only feature–

Stephen G. Breyer:

And the other–

Lawrence S. Robbins:

–in the statute that–

Stephen G. Breyer:

–In answer to Justice Ginsburg, what the other being… look, the QED analysis, formal analysis, Various Items deals with instrumentalities, Halper didn’t deal with instrumentalities, instrumentalities have a pedigree historically, the other didn’t, and therefore the other cases deal with excessive punishment, not double jeopardy, so draw the dots, follow the dots, it’s never been overruled, and that’s the end of the instrumentalities.

Proceeds are an easier case for the Government, possibly.

And your response to that is?

Lawrence S. Robbins:

–My–

Stephen G. Breyer:

Because you said one was the innocent owner, and the other is–

Lawrence S. Robbins:

–Well–

Stephen G. Breyer:

–You’re going to make, which is what I want to hear.

Lawrence S. Robbins:

–Well, not… I think the answer is that 881 (a)(7) has a variety of features that render it punitive.

Apart from innocent owner, the fact that it is tied to the commission of an offense, it embodies the word violation and, just as this Court referred to in One 1958 Sedan, where the requirement to prove illegality was what persuaded the Court in that case to imply the Fourth Amendment exclusionary rule to an otherwise civil forfeiture, is also present here.

The fact that the forfeiture under 881(a)(7) has such a… it has sort of random relationship to the underlying harm, a point this Court made several times in Austin, the fact that what you forfeit may bear only the mere… a mere happenstance relationship to the social cost… if you have the Taj Mahal on your property, it is entirely forfeited, or if you have a hobo’s hovel on your property.

Excessive punishment.

Lawrence S. Robbins:

It… well, excessive punishment is one implication, but I think it is also a factor that historically has persuaded this Court in a variety of cases… U.S. Coin and Currency, the opinion for the Court by Mr. Justice Harlan said, you know, again, if there is a tie to a criminal offense, if there is a random relationship between the fine and what your… what the social costs are, this is another barometer of what is punitive.

The bottom line for us is this–

David H. Souter:

The thing that’s bothering me in all this is, fine, call it a punishment.

Lawrence S. Robbins:

–Yes.

Stephen G. Breyer:

It’s a special kind of punishment, and so it somewhat begs the question just to call it a punishment.

If you want to go and… so that’s what I’m looking for, the historical basis, et cetera.

Suppose I believe it’s a special kind of punishment.

Does the jeopardy clause apply or not?

Now, I have the QED, and your distinction is what you’ve been saying.

Lawrence S. Robbins:

Well, my distinction is that it is hard to see how it could be punishment for Eighth Amendment purposes and not punishment for Fifth Amendment purposes.

I don’t see how it could be… or, more to the point, Justice Breyer, I don’t see how it can be punitive for purposes of the Self Incrimination Clause of the Fifth Amendment but not punitive for the Double Jeopardy Clause of the Fifth Amendment.

These were, after all, enacted the same day.

Ruth Bader Ginsburg:

How about something being nonpunitive for purposes of the procedure, like taking One Plymouth, but being criminal for purposes of applying the Fourth Amendment?

Lawrence S. Robbins:

Well, I–

Ruth Bader Ginsburg:

That is not a hypothetical case.

Lawrence S. Robbins:

–No, I understand.

You mean, could you make a distinction between what is sufficiently punitive for one constitutional provision or another?

I think the answer to that–

Ruth Bader Ginsburg:

But that’s a case in the forfeiture context.

Lawrence S. Robbins:

–Yes.

Ruth Bader Ginsburg:

And it was recognized as a civil forfeiture.

Lawrence S. Robbins:

Mm hmm.

Ruth Bader Ginsburg:

The police got the evidence to show that contraband had been carried through an unlawful search and seizure.

They had no warrant, they had no probable cause, they just took the liquor from the car, and then they said, well, now we’re going to prove that this car had been proved to carry contraband, and here’s the liquor that we illegally seized.

When the court said, sorry, the Fourth Amendment applies to that, it by no means said, and you can’t, Government, bring these proceedings as civil forfeitures anymore.

Lawrence S. Robbins:

Well, that’s true, but that’s for the, I think quite different reason that it isn’t so overwhelmingly punitive–

Ruth Bader Ginsburg:

But it was–

Lawrence S. Robbins:

–as to trigger Sixth Amendment–

Ruth Bader Ginsburg:

–It was penal for one purpose–

Lawrence S. Robbins:

–Yes.

Ruth Bader Ginsburg:

–for the Fourth Amendment.

It was not penal for all purposes.

Lawrence S. Robbins:

Well, of course, in One 1958 Sedan the Court was not called upon to decide whether it’s punitive for one purposes and not for another.

The only question presented was a Fourth Amendment claim.

The only question presented in One 1958 Sedan was a self incrimination question, but it strikes me as really quite odd to say that something that we have… that the Court unanimously concluded was punishment under the Excessive Fines Clause will not be punishment in all relevant respects–

Ruth Bader Ginsburg:

But Austin was one case.

Lawrence S. Robbins:

–Yes.

Ruth Bader Ginsburg:

And as against that you have 200-odd years of history, and a whole Prohibition era where this was standard operating procedure.

Lawrence S. Robbins:

Well, Justice Ginsburg, if I might, I really do believe that this is an instance where a volume of logic is actually better than a page of–

Ruth Bader Ginsburg:

And… and a label of excessive fine.

Lawrence S. Robbins:

–I’m sorry?

Ruth Bader Ginsburg:

Is there any implication in Austin itself that the Court understood that that excessive fine decision was going to be carried over into the double jeopardy area?

Lawrence S. Robbins:

Well, certainly nothing plain in the text of the opinion.

It would be quite odd if it were, but–

Sandra Day O’Connor:

Well, and in fact, didn’t the Court in Austin leave open the possible application in civil cases of Excessive Fines Clause?

I thought it did.

Lawrence S. Robbins:

–There is some… there may be some–

Sandra Day O’Connor:

Well–

Lawrence S. Robbins:

–daylight in Footnote 14, but if I–

Sandra Day O’Connor:

–Well, there’s a statement leaving that open.

Lawrence S. Robbins:

–Yes, I think… I think you can read the last footnote that way, and obviously the Government hangs its hat on that.

But I think that if the balance of the opinion, precisely because it looks at a series of factors that have always… and here I’d like to recur to the tradition of this Court’s decisions that have always been regarded as appropriate barometers of what is punishment?

Is it tied to a criminal offense?

Does there… is there an innocent ownership?

Is it disproportionate?

Is there a random relationship–

Sandra Day O’Connor:

Well, of course, I think a punitive damages award can be a punishment.

I mean, that’s my view–

Lawrence S. Robbins:

–Yes–

Sandra Day O’Connor:

–and covered by the Excessive Fines Clause, and so forth.

That doesn’t mean double jeopardy applies.

Lawrence S. Robbins:

–Yes, although I guess I think for the rather different reason that it’s not imposed by the Government, and obviously, you know, individual… you know, individual citizens, I suppose, with the possible exception of KEYTAM litigation, cannot impose double jeopardy on one another.

William H. Rehnquist:

Well, certainly punitive damages are imposed by the Government.

Lawrence S. Robbins:

They can be, and I suppose–

William H. Rehnquist:

Can you give me an example of where they are… where somebody other than the Government imposes a judgment for punitive damages?

Lawrence S. Robbins:

–Well, obviously, in the final analysis, it’s imposed by virtue of a judgment enforceable by a court, so I suppose under a sort of Shelley and Kraemer analysis one would call that State action, but I think–

Ruth Bader Ginsburg:

But Mr. Robbins, many States now have for punitive damages, part of the award goes to the State Treasury.

Part goes to the plaintiff, and part goes to the State Treasury.

Lawrence S. Robbins:

–And I suppose that under Halper there may come a day when it is so wildly disproportionate that the court may ultimately want to revisit the question, but mercifully, I don’t have to defend that today.

I have the–

Antonin Scalia:

Or you’re trying not to.

[Laughter]

Lawrence S. Robbins:

–I mean, I have the sufficiently difficult burden of trying to persuade the Court that this is punishment for all the reasons that it unanimously held it was punishment in Austin, and I guess, you know, for want of a better talisman, I recur to the point that every reason the Court advanced for calling it punishment in Austin is present here.

It’s the same statute, it’s the same facts, and let me say, my case happens to illustrate exactly why it’s punishment.

Anthony M. Kennedy:

But the question is whether or not it’s the same offense.

Those–

Lawrence S. Robbins:

Well–

Anthony M. Kennedy:

–Those are the terms that appear in the Double Jeopardy Clause, and if–

Lawrence S. Robbins:

–Well–

Anthony M. Kennedy:

–The Government gave a hypothetical something along the lines, if you have Smith and Jones in Smith’s car, and they’re both dealing in marijuana, you can convict the nonowner for the criminal offense, and it’s completely different elements in order to forfeit, in order to forfeit the automobile.

Lawrence S. Robbins:

–Well, in my view–

Anthony M. Kennedy:

So you have to confront the same offense question.

Lawrence S. Robbins:

–And I think we can… I think we meet, we amply meet the Blockburger standard, and that a lot of the arguments that I’ve heard this morning really have nothing to do with Blockburger at all.

The fact is that 881(a)(7) incorporates precisely the antecedent predicate act, because it requires the proof of a violation.

That is the word used by the statute.

The fact that you can prove a forfeiture by showing that someone else did it strikes me as ultimately begging the question.

The question is, this person has been punished twice, forfeited on the one hand, convicted and sentenced on the other, and now the Blockburger inquiry is, was it for the same offense, so after all you need to look, as the Court did in Whalen, Harris v. Oklahoma, and I would suggest United States v. Dixon as well, at the elements and ask, are they the same?

The fact is, 881(a)(7) couldn’t be plainer that it is embodying all of the elements of the underlying violation.

Let me just say again, the suggestion by the Government this morning, which I suspect they will disavow on rebuttal, is that somehow the manufacturing charge required proof that it was done on a neighbor’s land.

The Court can look at the reproduction of the indictment in the Joint Appendix, as well as the statute 841(a)–

Ruth Bader Ginsburg:

I didn’t understand the Government to say that it required that proof.

I just thought that they were saying that the civil forfeiture was based on things that were happening on their own land–

Lawrence S. Robbins:

–Well, I–

Ruth Bader Ginsburg:

–and the indictment charged a particular transaction a particular day.

Lawrence S. Robbins:

–Well, it actually did not charge a particular transaction.

It charged on or about a particular day–

Right.

Lawrence S. Robbins:

–which was, of course, a day selected from within the 2-year period for which he’d already had suffered a forfeiture, so it’s… I mean, it’s not a different day in any meaningful sense, and let me say that if you read the record of the forfeiture proceeding and the prosecution, you will find that the forfeiture and the prosecution both turned on growing marijuana off the premises, processing and smoking it on the premises… same facts, same theory, same witnesses, same–

John Paul Stevens:

Yes, but it may be that they needed different elements for the two different offenses.

In other words, they did not have to prove what happened in the house to forfeit what happened elsewhere, and vice versa.

Lawrence S. Robbins:

–Well, it sounds at that point, Justice Stevens, that one is almost getting into the Grady and Corbin problem of turning on particular pleces of evidence.

John Paul Stevens:

Well, that’s what Blockburger itself was, too.

Lawrence S. Robbins:

Well, I think we are… we are relying specifically on the elements, and again, to go back to a question that Justice Scalia put, I believe, perhaps to my cocounsel, this really is, in my view, just like Whalen and Harris v. Oklahoma.

Yes, it’s true, you could prove the forfeiture by showing a different underlying crime.

Lawrence S. Robbins:

You could show money laundering, you could show possession with intent to distribute, but in this case, what they charged was forfeiture based on manufacturing, and what they charged in the indictment at Joint Appendix page 28 was manufacturing as an offense, and this is in a sense a compound crime that has a variety of predicates, just as this Court said in Whalen.

John Paul Stevens:

Wasn’t there also a conspiracy charge?

Lawrence S. Robbins:

I’m sorry, Your Honor?

John Paul Stevens:

Wasn’t there also a conspiracy–

Lawrence S. Robbins:

Oh, no, there was no.

John Paul Stevens:

–There was not.

Lawrence S. Robbins:

It was a one count manufacturing indictment, the exact same allegation that constituted the predicate in the forfeiture.

Let me just say a quick word about separate proceedings, because I really don’t–

Ruth Bader Ginsburg:

May I just… I take it from what you said that your answer to my broker case, or lawyer case, you’re disbarred first and you’re fined… it usually happens the other way around, but it could be that the disciplinary committee gets you first, and you’re no longer a member of the State bar, and you’ve had to pay a whopping fine for what you’ve done.

Then you’re prosecuted for the very same conduct.

Under your argument, I take it you could not later be prosecuted.

Lawrence S. Robbins:

–No, quite the opposite.

Under my argument, you absolutely could.

I don’t… to me, the fine is a form of liquidated damages that probably take… I mean, again–

Ruth Bader Ginsburg:

It has no relation to how much your clients were out of pocket.

Lawrence S. Robbins:

–Well, if it’s… you know, if it’s an extreme enough fine, I suppose it would raise a question under Halper as to whether it is so wildly disproportionate that it really is the rare case.

Ruth Bader Ginsburg:

But the defendant says, I don’t care about that disproportionate fine if it gets me off the hook from going to jail–

Lawrence S. Robbins:

Well–

Ruth Bader Ginsburg:

–so I’m going to attack the second prosecution.

The first one I’ll leave alone.

Lawrence S. Robbins:

–Well, again, I don’t want to beg the hypothetical too much, because in all likelihood the disbarment and disgorgement is by a State sovereign and the prosecution is by… if I understand you, by the Federal–

Ruth Bader Ginsburg:

No, no–

Lawrence S. Robbins:

–but if it’s the same–

Ruth Bader Ginsburg:

–I don’t want to bring sovereignty into it.

Lawrence S. Robbins:

–If it’s the same sovereign, my position is that unless the fine is so disproportionate as to violate Halper, it’s a classic, it’s a form of liquidated damages even if it’s not, you know, more… any better than rough justice.

William H. Rehnquist:

Your time has expired, Mr. Robbins.

Lawrence S. Robbins:

Thank you.

William H. Rehnquist:

Mr. Dreeben, you have 10 seconds remaining, which under the–

[Laughter]

Under the maxim of de minimis non curat lex means the case is submitted.

Michael R. Dreeben:

Thank you.