UNITED STATES of America, Plaintiff-Appellee, v. Joel CRETACCI, Defendant-Appellant

Opinion by Judge REINHARDT; concurrence by Judge KLEINFELD.

We have recently held that some civil forfeitures constitute “punishment” for purposes of the Double Jeopardy Clause. See United *309 States v. $405,089.23 U.S. Currency, 33 F.3d 1210 (9th Cir.1994), amended on denial of reh’g, 56 F.3d 41 (1995). This appeal requires us to determine a related question: whether the administrative forfeiture of unclaimed property constitutes “punishment”? We hold that it does not, and thus that a criminal prosecution following an administrative forfeiture of such property does not offend the Double Jeopardy Clause.

I.

On October 4, 1993, a federal magistrate issued a criminal arrest warrant against Joel Cretaeci, which stemmed from his alleged participation in two Arizona ATM robberies that netted more than $200,000. That same day, the magistrate issued a civil seizure warrant for a Toyota MR-2 pursuant to 18 U.S.C. § 981 (a)(1)(A). An affidavit by an agent for the Federal Bureau of Investigation (FBI) accompanying the seizure warrant alleged that the car was subject to forfeiture because Cretaeci had purchased it with funds from the two robberies in violation of the federal money…

concurring:

I concur in the reasoning and the result reached by the majority, except for one detail. I would not reach the issue of whether, under Simmons v. United States, 390 U.S. 377 , 88 S.Ct. 967 , 19 L.Ed.2d 1247 (1968), a claim of ownership in a civil forfeiture proceeding can be used against the claimant in a subsequent criminal proceeding. Abandonment of property, like a gift, relinquishes title. Fidelity-Philadelphia Trust Co. v. Lehigh Valley Coal Co., 294 Pa. 47 , 143 A. 474 (1928). Property valued by the true owner is frequently abandoned because that value is exceeded by some cost associated with retaining the property, as when a fishing vessel sinks off the Aleutians, or a diamond ring falls into a crevasse. That the relinquishment may result from a calculation that the penal risk of a claim exceeds the value of the property does not, to my mind, implicate the Fifth Amendment. The property is abandoned regardless. The majority’s reasoning is persuasive to me without the Simmons reasoning.

62 F.3d 307 95 Cal. Daily Op. Serv. 6175 , 95 Daily Journal D.A.R. 10,563 UNITED STATES of America, Plaintiff-Appellee, v. Joel CRETACCI, Defendant-Appellant. No. 94-10235. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 14, 1995. Decided Aug. 4, 1995. Thomas Hoidal, Asst. Federal Public Defender, Phoenix, AZ, for defendant-appellant. Stanley L. Patchell, Asst. U.S. Atty., Phoenix, AZ, for plaintiff-appellee. Appeal from the United States District Court for the District of Arizona. Before: REINHARDT, D.R. THOMPSON, and KLEINFELD, Circuit Judges. Opinion by Judge REINHARDT; concurrence by Judge KLEINFELD. REINHARDT, Circuit Judge: 1 We have recently held that some civil forfeitures constitute "punishment" for purposes of the Double Jeopardy Clause. See United States v. $405,089.23 U.S. Currency, 33 F.3d 1210 (9th Cir.1994), amended on denial of reh'g, 56 F.3d 41 (1995). This appeal requires us to determine a related question: whether the administrative forfeiture of unclaimed property constitutes "punishment"? We hold that it does not, and thus that a criminal prosecution following an administrative forfeiture of such property does not offend the Double…