Opinion
C.C.A. No. 03C01-9601-CC-0026.
September 9, 1996.
Appeal from Sevier Criminal, Honorable Rex Henry Ogle.
For Appellant:
Edward C. Miller, Public Defender.
For Appellee:
Charles W. Burson, Attorney General and Reporter, William David Bridges, Assistant Attorney General, Al Schmutzer, Jr., District Attorney General, Charles E. Atchley, Jr., Asst. District Attorney General.
AFFIRMED
OPINION
The appellant pled guilty to three counts of the sale of cocaine on September 25, 1995, and received a sentence of eight years; however, appellant specifically reserved the right to appeal a certified question of law pursuant to Tennessee Rules of Criminal Procedure, Rule 37(b)(2)(iv). This is his appeal as of right on a certified question of law that is dispositive of the case.
Appellant states his issue as follows: "Whether the appellant's constitutional protection against being subject to double jeopardy would prohibit his prosecution under the criminal statutes in this cause due to the fact that the appellant had previously had his automobile seized and forfeited pursuant to Tenn Code Ann. § 53-11-451?"
We answer that question in the negative, and the judgment of the trial court is affirmed.
FACTS
On May 17, 1995, the Sevier County Grand Jury returned three presentments against the appellant for the sale and delivery of cocaine. On May 18, 1995, appellant was arrested, and his 1983 Honda automobile was seized. Appellant did not file a notice contesting the forfeiture of his automobile, and the automobile was ordered forfeited to the seizing agency by the Commissioner of the Department of Safety on August 21, 1995. On September 25, 1995, appellant argued his Motion to Dismiss based upon the question of double jeopardy, and the trial court overruled that motion, upon the basis that appellant was not a party to the forfeiture proceeding and jeopardy as to appellant could not attach to that proceeding. This holding was based upon United States v. Torress, 28 F.3d 1463 (7th Cir. 1994). Following the ruling of the trial court on the Motion to Dismiss, appellant pled guilty to three counts of the sale of cocaine and received a sentence of eight years; and appellant specifically reserved the right to appeal the issue of double jeopardy.
ANALYSIS AND HOLDING
We feel that it is not necessary to decide if jeopardy attached to the forfeiture hearing on the automobile, because the bench and bar will be best served by a more complete analysis of the forfeiture under T.C.A. § 53-11-451 and T.C.A. § 53-11-201-204.
As far the U.S. Constitution and the federal courts are concerned, the United States Supreme Court has clearly decided the case opposite to the position of the appellant. In United States, Petitioner v. Guy Jerome Ursery, No. 95-345, decided June 24, 1996, the Court discussed the cases of Various Items of Personal Property v. United States, 282 U.S. 577 (1931), One Lot Emerald Cut Stones v. United States, 409 U.S. 232 (1972), and United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984); and the Court said:
Our cases reviewing civil forfeitures under the Double Jeopardy Clause adhere to a remarkably consistent theme. Though the two-part analytical construct employed in 89 Firearms was more refined, perhaps, than that we had used over 50 years earlier in Various Items, the conclusion was the same in each case: in rem civil forfeiture is a remedial civil sanction, distinct from potentially punitive in personam civil penalties such as fines, and does not constitute a punishment under the Double Jeopardy Clause. See Gore v. United States, 357 U.S. 386, 392 (1958) (— In applying a provision like that of double jeopardy, which is rooted in history and is not an evolving concept . . . a long course of adjudication in this Court carries impressive authority —).
In Ursery, supra, the Court further discussed the cases of United States v. Halper, 490 U.S. 435 (1989), Montana Dept. Of Revenue v. Kurth Ranch, 511 U.S. ___, and Austin v. United States, 509 U.S. 602 (1993), as follows:
In sum, nothing in Halper, Kurth Ranch, or Austin, purported to replace our traditional understanding that civil forfeiture does not constitute punishment for the purpose of the Double Jeopardy Clause.
. . .
Halper dealt with in personam civil penalties under the Double Jeopardy Clause; Kurth Ranch with a tax proceeding under the Double Jeopardy Clause; and Austin with civil forfeitures under the Excessive Fines Clause. None of those cases dealt with the subject of this case: in rem civil forfeitures for purposes of the Double Jeopardy Clause.
. . .
Because it provides a useful analytical tool, we conduct our inquiry within the framework of the two-part test used in 89 Fireworks. First, we ask whether Congress intended proceedings under 21 U.S.C. § 881, and 18 U.S.C. § 981, to be criminal or civil. Second, we turn to consider whether the proceedings are so punitive in fact as to persuade us that the forfeiture proceeding [s] may not legitimately be viewed as civil in nature, despite Congress' intent. 89 Firearms, 465 U.S., at 366.
. . .
We hold that these in rem civil forfeitures are neither punishment nor criminal for purposes of the Double Jeopardy Clause.
No substantial difference in the U.S. Constitution and the Tennessee Constitution double jeopardy clauses has been pointed out to us. We are of the opinion that our state constitution provides no greater protection than that afforded by the United States Constitution. See State of Tennessee v. Grapel Simpson, C.C.A. No. 02C01-9508-CC-00239, at Jackson, decided August 2, 1996.
In deciding this case, we feel it is proper for us to use the analysis used in Ursery, supra. First, we will seek to determine whether the Tennessee Legislature intended forfeiture proceedings under T.C.A. § 53-11-201-204 and T.C.A. § 53-11-451 to be criminal or civil. Second, we will consider whether the proceedings are so punitive in fact as to "— persuade us that the forfeiture proceedings may not legitimately be viewed as civil in nature —" despite the intent of the legislature.
In our inquiry concerning the intent of the legislature, we conclude that the Tennessee Legislature designed forfeiture under T.C.A. § 53-11-201-204 and T.C.A. § 53-11-451 as a remedial civil sanction. This conclusion was based upon several findings. T.C.A. § 53-11-403 states: "Any penalty imposed for violation of parts 3 and 4 of this chapter or title 39, chapter 6, part 4 [repealed] is in addition to, and not in lieu of, any civil or administrative penalty or sanction otherwise authorized by law." The forfeiture provisions of the Tennessee Drug Control Act, with slight modifications, are modeled upon the Uniform Controlled Substances Act. In rem actions have traditionally been viewed as civil proceedings, with jurisdiction dependent upon the seizure of a physical object. 89 Firearms, id., at 363. The forfeiture provision in the Tennessee statute reaches objects "used, or intended for use" in violating the Tennessee Drug Control Act, and reaches a broader range of conduct than its criminal analogue. These forfeiture statutes further broad remedial aims, including, among others, preventing the use of forfeited objects in further criminal acts and preventing criminals from enjoying the fruits of criminal behavior. If a claim is filed, the state has the burden of proving "by a preponderance of the evidence that the seized property was of a nature making its possession illegal or was used in a manner making it subject to forfeiture. . . ." This clearly is the standard of proof required in civil cases. Also, the hearing is an administrative type hearing.
In our inquiry concerning whether the proceedings are so punitive in fact as to "— persuade us that the forfeiture proceedings may not legitimately be viewed as civil in nature —" despite the intent of the legislature, we conclude that forfeiture proceedings under T.C.A. § 53-11-201-204 and T.C.A. § 53-11-451 are not so punitive in form and effect as to render them criminal despite the legislative intent to the contrary. In arriving at that conclusion we again look to the holding in Ursery, supra, and there the Court pointed out many nonpunitive goals served by forfeiture of property used, or intended to be used, to violate federal narcotics laws. Examples of such goals set forth by the Court are: (1) encourages property owners to take care in managing their property and ensures that they will not permit that property to be used for illegal purposes, (2) prevents further illicit use of property, (3) removes from circulation property that has been used, or intended for use, illegally, (4) prevents forbidden property from circulation, (5) prevents persons from profiting from their illegal acts, and (6) serves a deterrent purpose distinct from any punitive purpose. We find that these and other nonpunitive goals are served by forfeitures under T.C.A. § 53-11-201-204 and T.C.A. § 53-11-451, and that such forfeitures are not so punitive in form and effect as to render them criminal.
In Ursery, supra, the Court further held "the fact that a forfeiture statute has some connection to a criminal violation is far from the clearest proof necessary to show that a proceeding is criminal." We feel there is ample evidence to support the decision that forfeitures under T.C.A. § 53-11-201-204 and T.C.A. § 53-11-451 are civil, and that they should not be classified as criminal simply because they are a part of the Tennessee Drug Control Act.
We hold that the forfeiture of appellant's 1983 Honda automobile was a civil forfeiture; and that the civil forfeiture is not a bar to criminal prosecution for crimes arising out of the same conduct.
For the reasons stated herein, the trial court is affirmed, and the case is remanded to the trial court for all necessary proceedings not inconsistent with this opinion.
________________________________ William M. Dender, Special Judge
CONCUR:
________________________________ Joseph B. Jones, Presiding Judge
________________________________ David G. Hayes, Judge