Appeal from the United States District Court for the Western District of Pennsylvania D.C.No. 94-224
Before: STAPLETON, SAROKIN, and ROSENN, Circuit Judges
Submitted Under Third Circuit LAR 34.1(a) December 8, 1995
This appeal primarily presents for consideration questions concerning whether a civil forfeiture of an automobile used in the sale of illegal drugs constitutes punishment under the Double Jeopardy Clause of the Constitution, and whether the Government must prove for purposes of sentence enhancement that cocaine base constitutes crack cocaine. Appellant Keith James pleaded guilty to possession and distribution of cocaine base in violation of 28 U.S.C. Section(s) 841(a)(1) and 841(b)(1)(B)(iii). The United States District Court for the Western District of Pennsylvania sentenced James to 108 months imprisonment pursuant to Sentencing Guidelines Manual Section(s) 2D1.1. This section provides for an enhanced sentence for the sale of "crack" cocaine. Prior to sentencing, the Government seized James's 1986 Buick LeSabre, pursuant to the forfeiture provisions contained in 21 U.S.C. Section(s) 881(a)(4).
James appeals his sentence on several grounds, *fn1 two of which merit discussion: (1) whether the judgment of sentence for sale of cocaine base subsequent to the administrative forfeiture of James's automobile is a second punishment for the same offense in violation of the Double Jeopardy Clause of the Fifth Amendment; and (2) whether the Government must prove at sentencing that the substance James sold was "crack," a particular form of cocaine base subject to severe enhancement under the Sentencing Guidelines. *fn2
We see no merit to James's double jeopardy argument. Because we believe, however, that the Government did not prove at sentencing that James sold crack cocaine, James's sentence will be vacated and the case remanded to the district court for re-sentencing consistent with this opinion.
On June 29, 1994, July 1, 1994 and July 11, 1994 James sold cocaine base, allegedly aggregating 57.4 grams, to a confidential informant. Undercover agents of a Drug Enforcement Administration Task Force monitored the transactions. The agents arrested James on September 19, 1994, and seized his 1986 Buick, which he used in all three transactions. One month later, the Drug Enforcement Agency (DEA) notified James of the forfeiture proceedings for his automobile, and alerted him as to the procedures to contest the forfeiture. James did not contest the forfeiture, and thus, prior to sentencing, forfeited his interest in the Buick to the United States.
James pleaded guilty to selling 57.4 grams of cocaine base. At sentencing, the court rejected James's arguments referred to above. The court sentenced James to 108 months imprisonment, the minimum sentence available under the Sentencing Guidelines for the possession and distribution of crack cocaine.
We will first review James's claim that the administrative forfeiture of his automobile constitutes punishment for the same offense for which he was sentenced criminally in violation of the Double Jeopardy Clause of the Fifth Amendment. Review of the district court's ruling is plenary. See Fabulous Assoc. v. Pa. Pub. Util. Comm'n, 896 F.2d 780, 783 (3rd Cir. 1990) (court must exercise independent appellate review in constitutional matters).
James drove the Buick LeSabre that he co-owned with his mother to the drug transactions. Subsequent to James's arrest, the Government seized the car pursuant to 21 U.S.C. Section(s) 881(a)(4), which provides, in pertinent part:
The following shall be subject to forfeiture to the United States and no property right shall exist in them:
(4) All conveyances used . . . to transport, or . . . facilitate the . . . sale [of cocaine]. 21 U.S.C. Section(s) 881(a)(4).
The Government then notified James in writing of the forfeiture proceedings and the legal methods to contest the proceedings. James asserts that he did not contest the forfeiture proceedings because to do so would have been an "exercise in futility." Prior to his sentencing hearing, James filed a Motion to Bar Imposition of Sentence in the district court. He asserted that the forfeiture of the Buick was punishment, thus a subsequent judgment of sentence would constitute a second punishment for the same offense, in violation of the Double Jeopardy Clause of the Fifth Amendment.
The Double Jeopardy Clause provides:
[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb. U.S. Const. amdt. 5.
The Supreme Court has noted that the Clause "protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense." See United States v. Halper, 490 U.S. 435, 440 (1989). James asserts that his subsequent sentencing violates the prohibition against multiple punishments.
This court recently held that prosecution subsequent to an administrative forfeiture does not subject a defendant to double jeopardy, because an administrative forfeiture does not constitute former jeopardy. See United States v. Baird, No. 95-1202 (3rd Cir. August 11, 1995). In Baird, law enforcement officials searched the defendant's residence on the suspicion that he was manufacturing and selling a drug called "Ecstacy." The officials seized drugs and manufacturing equipment, along with $2,582 cash. The DEA invoked administrative forfeiture of the ...