criminal indictment where the civil penalty has preceded the criminal prosecution.
Defendants cite a number of cases which they argue support the application of double jeopardy protections regardless of the chronological order of the proceedings. See United States v. Park, 947 U.S. 130, 134 (1991) (noting that "several other courts have already concluded that Halper applies when a civil penalty is imposed prior to a criminal conviction", but declining to decide the issue because defendant had elected to delay civil forfeiture proceedings pending the outcome of his criminal prosecution), vacated in part, 951 F.2d 634 (5th Cir. 1992); United States v. Mayers, 897 F.2d 1126, 1127 (11th Cir.) (per curiam) ("the Halper principle that civil penalties can sometimes constitute criminal punishment for double jeopardy purposes would seem to apply whether the civil penalties come before or after the criminal indictment"), cert. denied, 498 U.S. 865, 112 L. Ed. 2d 142, 111 S. Ct. 178 (1990); United States v. Marcus Schloss & Co., 724 F. Supp. 1123, 1126 (S.D.N.Y. 1989) ("If in fact a civil sanction may fairly be characterized 'only as a deterrent or retribution', then its exaction before imposition of criminal punishment should have the same double jeopardy effect as exaction afterwards.") (citation omitted).
In each of these cases, however, the double jeopardy issue was not raised until after the criminal conviction was handed down. None of these cases addressed the availability of double jeopardy protections to a defendant who has not yet been criminally convicted. Indeed, to engage in a double jeopardy inquiry at the pretrial stage would be premature and would require this Court to issue a ruling amounting to little more than an advisory opinion to be consulted in the event that defendants do eventually suffer multiple punishments. Double jeopardy simply does not attach under such circumstances. Cf. Halper, 490 U.S. at 450 ("Nothing in today's ruling precludes the Government from seeking the full civil penalty against a defendant who previously has not been punished for the same conduct, even if the civil sanction imposed is punitive. In such a case, the Double Jeopardy Clause simply is not implicated."); Park, 947 F.2d at 134-35 (refusing to address double jeopardy claim where defendant specifically elected to delay civil forfeiture proceedings pending the outcome of his criminal prosecution).
Notwithstanding the absence of any criminal conviction in this case, defendants contend that their motion is not premature because the Double Jeopardy Clause protects them from being subjected to a trial in this case. By seeking to preempt this criminal prosecution rather than awaiting the outcome at trial, however, defendants' argument appears to be that a substantial civil forfeiture effectively bars any subsequent criminal prosecution. Such an argument, taken to its logical conclusion, would seriously undermine efforts at law enforcement. The Halper Court was particularly mindful of the Government's need to combat fraud and limited its holding so as not to disrupt such activity. See Halper, 490 U.S. at (1903); id. at (1904) (Kennedy, J., concurring). This Court must be no less mindful.
More importantly, defendants' argument is simply not supported by the case law. Indeed, the two cases that defendants cite extensively in their supporting memoranda, Halper and Whalers Cove, are inapposite to the facts of this case. Halper and Whalers Cove both involved defendants who had been convicted for criminal conduct involving small, albeit finite, amounts of money and who later faced civil fines and forfeitures in amounts far in excess of the actual damages caused by their conduct.
Unlike Halper and Whalers Cove, this case comes on the heels of an uncontested civil forfeiture. As a result, this Court is unable at this time to determine whether the value of the forfeited property is disproportionate to the damages caused by defendants' alleged fraud. The Amiel defendants contend that the $ 4 million forfeiture need only be compared to the $ 226,645 sum set forth in the superseding indictment as the total gross sale price of the prints involved in the alleged crimes. The Government, on the other hand, argues that the evidence It trial will show that the assets forfeited from defendants are substantially less than the $ 4 million estimate and less than the value of the criminal offense. Moreover, the Government states that it will show that many of the forfeited properties were instrumentalities of the alleged fraud and therefore are beyond Halper's reach. Given the parties' conflicting stances, this Court cannot determine the proportionality of the sanctions involved until it has had the opportunity to hear all the evidence.
Finally, even assuming arguendo that the size of the alleged transactions only amounted to the $ 226,645 detailed in the superseding indictment, this amount hardly compares to the minuscule sums of $ 585 and $ 250 attributed to the "small-gauge offenders" at issue in Halper and Whalers Cove. Moreover, the defendants in Halper and Whalers Cove were subjected to civil penalties that were "overwhelmingly disproportionate" to their violative conduct, whereas, in the instant case, even defendants' estimate of the value of the forfeited assets as compared to the value of the alleged wrongdoing does not exceed all rational relation. The ratio between the civil penalty and the violative conduct was 222 to 1 in Halper and 272 to 1 in Whalers Cove. (Gov't.'s Response to the Def.'s Pretrial notions at 12 n.5 [hereinafter "Gov't.'s Response"].) A similar comparison in this case reveals a ratio of only 18 to 1. (Gov't.'s Response at 12 n.5.) It is clear, therefore, that the Supreme Court and the Second Circuit never intended civil penalties of the kind assessed herein to trigger the protections of the Double Jeopardy Clause.
Based on the foregoing discussion, defendants' motion to dismiss the superseding indictment in this case on double jeopardy grounds is hereby denied. No stay of the imposition of this order pending an announced appeal will be granted. This case will proceed to trial as scheduled on March 8, 1993, unless stayed by the Court of Appeals.
Thomas C. Platt
Chief Judge, U.S.D.C.
Dated: Uniondale, New York
January 6, 1993