State v. Cole

¶1(dissenting) — These two cases are resolved by application of recent controlling precedent, that established in Austin v. United States, 509 U.S. 602, 113 *294S. Ct. 2801, 125 L. Ed. 2d 488 (1993), followed by this court in State v. Clark, 124 Wn.2d 90, 875 P.2d 613 (1994) and State v. Gocken, 127 Wn.2d 95, 896 P.2d 1267 (1995). The majority reaches the wrong result by incorrectly applying the analysis required by these cases. Proper application of Austin, Clark, and Gockenleads to the inescapable conclusion that the Petitioners’ forfeitures constitute punishment for the same offense for which they were also criminally prosecuted, thereby subjecting Petitioners Cole and Szymanowski to double jeopardy in violation of the Fifth Amendment of the United States Constitution.

¶2The double jeopardy clause protects against a second prosecution for the same offense and against multiple punishments for the same offense imposed in separate proceedings. United States v. Halper, 490 U.S. 435, 440, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). Accordingly, double jeopardy analysis in these cases involves three inquiries: (a) whether the forfeitures at issue constituted "punishment”; and, if so, (b) whether the forfeiture and criminal proceedings against each Petitioner constituted separate "proceedings” (c) arising from the "same offense.” Halper, 490 U.S. at 440; Pearce, 395 U.S. at 717.

¶3There is no dispute the civil forfeiture and criminal prosecution of each Petitioner constituted separate proceedings. As to punishment, the majority concludes Petitioner Cole was not punished by the forfeiture proceedings because he forfeited only proceeds of criminal activity. Because the majority misunderstands the analysis required of us by Austin, I dissent from the majority’s analysis and conclusion regarding punishment.

¶4With respect to Petitioner Szymanowski, the majority remands for a factual determination as to whether the items forfeited were proceeds of criminal activity. In the event the superior court determines Szymanowski’s forfeiture was not criminal proceeds, it must then decide whether or not Szymanowski was prosecuted for the same *295offense as the civil forfeiture. The majority’s decision fails to give the superior court any guidance on this issue. This is the proper case for this court to address this issue under the "same elements” test of Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), which we adopted in Gocken, 127 Wn.2d at 100-01.

¶5The majority examines the punitive effect of RCW 69.50.505(a)(7) as applied in an individual case. Majority at 280. So long as the forfeited property or assets are proceeds of an illegal drug transaction, the majority would find no punishment for purposes of double jeopardy. This is the wrong approach and is contrary to the analysis set forth in Austin. The AustinCourt, reviewing the legislative and common law history of forfeiture, found "that forfeiture generally and statutory in rem forfeiture in particular historically have been understood, at least in part, as punishment.” Austin, 113 S. Ct. at 2810. The Court also found the federal civil forfeiture statute at issue allowed for forfeiture of property varying so dramatically in value "that any relationship between the Government’s actual costs and the amount of the sanction is merely coincidental.” Austin, 113 S. Ct. at 2812 n.14. Based on these findings, the Court explicitly concluded the federal civil forfeiture statute before it must be examined as a whole. Austin, 113 S. Ct. at 2812 n.14. See also United States v. $405,089.23 U.S. Currency, 33 F.3d 1210, 1220 (1994) (under Austin, any determination whether a forfeiture constitutes punishment must look to the requirements of the forfeiture statute as a whole, not simply whether the particular forfeiture is excessive in relation to any remedial goal).

¶6The Supreme Court in Austinrequires us to determine whether a forfeiture is punitive by looking at the requirements of RCW 69.50.505(a)(7) in its entirety to determine whether it serves solely a remedial purpose. Austin, 113 S. Ct. at 2812. We may not simply look at how the statute has been applied in a particular case. Upon examination of the entire statute, it cannot fairly be said solely to serve *296a remedial purpose. Like the statute at issue in Austin, RCW 69.50.505(a)(7)20 requires a criminal drug violation and contains an innocent owner exemption, both indicating a legislative intent to impose a penalty only upon those who are guilty of drug related oifenses. Like the statute before the AustinCourt, our civil forfeiture statute allows police officers to seize and forfeit property and assets without regard to any correlation between their value and the damages sustained by society or the cost of enforcing the law. Austin, 113 S. Ct. at 2812.

¶7Even assuming the forfeiture of criminal proceeds is remedial, the scope of RCW 69.50.505(a)(7) is not limited to proceeds traceable to criminal activity. Rather, three distinct categories of property and assets are subject to forfeiture under the statute: (a) personal property and assets "furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this chapter or chapter 69.41 or 69.52 RCW”; (b) personal property and assets "acquired in whole or in part with proceeds traceable to an exchange or series of exchanges in violation of this chapter or chapter 69.41 or 69.52 RCW”; and (c) certain assets "used or intended to be used to facilitate any violation of this chapter or chapter 69.41 or 69.52 *297RCW.” RCW 69.50.505(a)(7). Only the second category involves proceeds. Because RCW 69.50.505(a)(7) allows personal property and assets to be seized and forfeited even if the property and assets clearly are not proceeds of a drug related crime, it does not serve solely a remedial purpose. Accordingly, a forfeiture under RCW 69.50.505-(a)(7), the statute at issue here, must be considered punishment under Austin, 113 S. Ct. at 2812 and Halper, 490 U.S. at 448.

¶8This result is consistent with our analysis and conclusion in Clark. In that case, following the analysis of Austinand Halper, we examined the entirety of RCW 69.50-.505(a)(8) and (4) to determine whether they served solely a remedial purpose. Finding a deterrent purpose on their face, we held forfeiture under RCW 69.50.505(a)(8) and (4) to constitute punishment. Clark, 124 Wn.2d at 97-101. Similarly, because RCW 69.50.505(a)(7) "cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes,” civil forfeiture pursuant to RCW 69.50.505(a)(7) is punishment subject to double jeopardy protections. Austin, 113 S. Ct. at 2812 (quoting Halper, 490 U.S. at 448). The majority errs by answering the wrong question.

¶9The majority remands Szymanowski to determine whether the property seized and forfeited was the proceeds of criminal activity. Under the majority approach, what happens next is unclear. If the superior court determines the forfeiture was criminal proceeds, then presumably the majority would affirm his conviction, and as stated above, I disagree. However, if the superior court determines the forfeiture was not of criminal proceeds, there remains the question of whether the forfeiture proceeding was for the same offense as the criminal proceeding. This is a question of public importance and the case requires this court to address this issue in order to provide guidance for our lower courts. If the trial court finds these were not proceeds, I would find the forfeiture proceeding was for the same offense as the criminal proceeding.

¶10*298To determine whether civil forfeiture constitutes the same offense as that for which Szymanowski was convicted, the Blockburgertest requires us to determine whether each offense requires proof of a fact the other does not. Blockburger, 284 U.S. at 304; Gocken, 127 Wn.2d at 101. Szymanowski was convicted of possession with intent to deliver cocaine, a violation of RCW 69.50.401(a). RCW 69.50.505(a)(7), under which his personal property and assets were forfeited, requires a violation or intended violation of either RCW 69.41, 69.50, or 69.52:

All moneys, negotiable instruments, securities, or other tangible or intangible property of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this chapter or chapter 69.41 or 69.52 RCW, all tangible or intangible personal property, proceeds, or assets acquired in whole or in part with proceeds traceable to an exchange or series of exchanges in violation of this chapter or chapter 69.41 or 69.52 RCW, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this chapter or chapter 69.41 or 69.52 RCW.

¶11(Italics mine.) RCW 69.50.505(a)(7). The existence of an actual or intended criminal offense thus is an element of civil forfeiture, and the elements of the criminal offense are imported into RCW 69.50.505(a)(7).

¶12Szymanowski’s position is similar to that of the defendant in Oakes v. United States, 872 F. Supp. 817 (E.D. Wash. 1994). In Oakes, the government initiated civil forfeiture proceedings against the defendant, then separately filed a criminal indictment for a marijuana growing operation. The court, applying the Blockburgertest, held the federal civil forfeiture statute for drug related offenses to be premised upon a violation of the controlled substances statutes:

Any forfeiture under section 881(a)(7), therefore, requires a preceding violation of the controlled substance statutes. Thus, the Government could not have attempted to take [the defendant’s] home had [he] not manufactured marijuana on *299the premises. To accept the Government’s argument that the sections involve different elements simply because one section of the statute deals with property and the other people, would be to adopt a circular and illusory theory.

The civil forfeiture action and the Petitioner’s criminal prosecution addressed the identical violation of the identical laws; the only difference between the proceedings was the remedy sought by the Government. ... In fact, the Government would have had no remedy in the civil forfeiture action had it not been able to prove "a violation of this subchapter,” i.e., section 841(a)(1). In short, the forfeiture statute subsumes all of section 841(a)(1) and, therefore, renders the criminal conviction and the civil forfeiture the "same offense” as defined by Blockburger.

¶13(Citation omitted.) Oakes, 872 F. Supp. at 824. Accord United States v. McCaslin, 863 F. Supp. 1299, 1303 (W.D. Wash. 1994) ("To obtain forfeiture the government had to prove that the property was used 'to commit, or to facilitate the commission of, a violation of this subchapter punishable by more than one year’s imprisonment. . . .’ 21 U.S.C. § 881(a)(7). The offenses relied upon for the forfeiture were the same ones that appeared in the indictment.”). The courts in Oakesand McCaslineach vacated a criminal prosecution following civil forfeiture on double jeopardy grounds. Although we are not bound to follow these cases, recent federal decisions analyzing the same issue should be persuasive.

¶14Petitioner Szymanowski faces the same situation as the defendants in Oakesand McCaslin. Because civil forfeiture requires the existence of a criminal violation, there is no element in RCW 69.50.401(a) that is not also present in RCW 69.50.505(a)(7). Under the Blockburgertest, Szymanowski was criminally prosecuted for the same offense for which he was punished by civil forfeiture. Jeopardy attached to the completed civil penalty proceedings, thus barring subsequent criminal prosecution. See United States v. Tamez, 881 F. Supp. 460, 465-66 (E.D. Wash. 1995) (jeopardy attaches to a civil forfeiture proceeding when *300the court enters its final judgment of forfeiture); United States v. Stanwood, 872 F. Supp. 791, 798-800 (D. Or. 1994).

¶15I would reverse the convictions of both Cole and Szymanowski on double jeopardy grounds because (1) RCW 69.50.505(a)(7) does not solely serve a remedial purpose as required by Austin, and (2) the civil forfeiture and criminal prosecution were the same offense. Prosecutors can avoid this dilemma by seeking imprisonment, fines, and forfeiture in one proceeding, as apparently is becoming the practice under federal forfeiture statutes. See, e.g., McCaslin, 863 F. Supp. at 1307. The government can easily avoid double jeopardy concerns by seeking forfeiture of the defendant’s property in the criminal case, while maintaining a civil cause in rem to extinguish the claims of persons who are not criminally charged.

¶16Guy, J., and Utter, J. Pro Tern., concur with Johnson, J.

¶17Reconsideration denied February 22, 1996.