U.S. v. Cretacci; U.S. vs. Usery

The Ninth Circuit Court of Appeals gave a boost to forfeiture efforts in the western United States by narrowing a previous decision that held forfeitures and criminal prosecutions based on the same arrest or seizure constituted double jeopardy. The court ruled in the United States vs. Cretacci that asset forfeiture does not constitute double jeopardy.

Last August a three-judge appeals panel ruled that prohibitions on double jeopardy do not apply to administrative forfeitures. Administrative forfeitures occur when the government (often law enforcement) gives notice of its intent to seize property and then takes it when no one claims the property. Commonly the forfeiture procedures are applied to funds seized during drug raids. Simply put, if the government pursued asset forfeitures, it was precluded from filing criminal prosecution. The Ninth Circuit Court of Appeals reversed the earlier ruling.

The U.S. Attorneys office breathed a collective sigh of relief upon hearing the news. "This is a very important ruling," said Michael Yamaguchi, the U.S. Attorney in San Francisco. "Previously, agents here were reluctant to do administrative forfeitures because they feared it would trigger double jeopardy when it came time to prosecute. I think this really clarifies what we can do now".

Last September, the court decided the United States vs. $405,809.23 U.S. Currency. The decision barred criminal prosecution of drug defendants and others whose property had already been confiscated in civil forfeiture or criminal prosecution.

In the wake of the $405,809.23 decision, hundreds of criminal suspects and prisoners filed motions seeking to have their indictments dismissed or their convictions overturned on grounds of double jeopardy. Several were successful, most notably Pius Aileman, a Nigerian who allegedly headed one of San Francisco's largest heroin smuggling rings.

In May, a district court gained national attention when it dismissed 43 drug counts against Aileman on grounds that federal agents had already punished him when they seized his car and some cash through forfeiture proceedings. The Cretacci decision should override the district court ruling and allow Aileman to be prosecuted on the original narcotics related charges. Although the Ninth Circuit Court has restored prosecution in the western United States, a related decision by a Sixth Circuit Appeal panel in Cincinnati will roll back federal forfeiture powers in the four states covered by the Sixth Circuit.

In the United State v Usery, the Sixth Circuit Court followed the reasoning in $405,089.23 by ruling in July that a drug prosecution that followed the settlement of a civil forfeiture amounted to double jeopardy.

Justice Department officials called the decisions "particularly troublesome" in the monthly publication "Quick Release" mailed out by the Asset Forfeiture Office.