United States v. $405,089.23 U.S. Currency, Charles Arlt, James Wren, Payback Mines, Claimants-Appellants

ORDER

The opinion filed September 6, 1994, 33 F.3d 1210 , is amended as follows:

*42 On 33 F.3d at 1220 , please add the following footnote at the end of the text and renumber the footnotes accordingly:

All of the panel members have voted to deny the petition for rehearing.

Judge Poole and Judge Reinhardt have voted to reject the suggestion for rehearing en banc and Judge Tanner has so recommended.

The full court was advised of the suggestion for rehearing en banc. A judge of the court requested a vote as to whether to take the case en banc, and a vote was taken. The request failed to secure the affirmative vote of a majority of the active non-recused members of the court.

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.

dissenting from the order rejecting the suggestion for rehearing en banc:'

By failing to rehear this ease en banc, the court lets stand a decision that “could free hundreds of drug dealers across the western United States.” Why a Major Drug Suspect May Go Free, S.F. Chron., May 9, 1995, at A1. 1

The panel held that the government could not convict a drug dealer of trafficking in drugs and then seek civil forfeiture of the proceeds of the illegal transactions. It reasoned that to do so “punishes” — or prosecutes — the dealer twice for the same offense and thus runs afoul of the Double Jeopardy Clause. The flip side of the panel’s reasoning is that a drug dealer whose illegally obtained proceeds have previously been seized may not thereafter be prosecuted because he will already have been “punished.” This cannot be right.

The Supreme Court has held that the civil forfeiture of contraband is a remedial sanction that does not constitute punishment for double jeopardy purposes. United States v. One Assortment of 89 Firearms, 465 U.S. 354 , 104 S.Ct. 1099 , 79 L.Ed.2d 361 (1984). Proceeds are the functional equivalent of contraband. Yet the panel’s opinion writes 89 Firearms off the…

56 F.3d 41 UNITED STATES of America, Plaintiff-Appellee, v. $405,089.23 U.S. CURRENCY, et al., Defendants. Charles Arlt, James Wren, Payback Mines, Claimants-Appellants. No. 93-55947. United States Court of Appeals, Ninth Circuit. May 30, 1995. 1 Charles Wesley Arlt, Lompoc, CA, and James Eli Wren, Lompoc, CA, pro se, for claimants-appellants. 2 Mark A. Feldman, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee. 3 Jeffry K. Finer, Finer & Pugsley, P.S., Spokane, WA, Jeffrey Steinborn, Seattle, WA, Brenda Grantland, Forfeiture Endangers American Rights, Mill Valley, CA, Shawn R. Perez, Santa Ana, CA, for defendant-appellant. 4 Richard S. Troberman, Seattle, WA, E.E. Edwards, III, Nashville, TN, David Michael, San Francisco, CA, David B. Smith, Alexandria, VA, Attorneys for Amicus Curiae National Association of Criminal Defense Lawyers. 5 Before: POOLE and REINHARDT, Circuit Judges, and TANNER, * District Judge. ORDER 6 The opinion filed September 6, 1994, 33 F.3d 1210 , is amended as follows:On 33 F.3d at 1220 , please add the following footnote at the end of the text and renumber the footnotes accordingly: 7 Our adoption of this categorical approach is also compelled…