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October 1, 1995


The opinion of the court was delivered by: MCAVOY

 Petitioner moves pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence he received in 1992 after pleading guilty to drug conspiracy charges. The basis for this action is petitioner's assertion that the post-conviction administrative forfeiture of his car and $ 8,100.00 in cash subjected him to Double Jeopardy in violation of the Fifth Amendment. Petitioner's motion is denied.

 A. Facts

 On April 10, 1992, U.S. Customs agents followed petitioner to a Chicago parking lot, where he had arranged to complete a drug transaction. Petitioner disputes defendant's contention that he "appeared for the transaction driving a 1988 Alpha Romeo" because, he claims, he parked his car about a block away from the parking lot. U.S. Customs agents arrested petitioner and then seized the $ 8,050.00 concealed in his underwear, the fifty dollars in his jacket pocket, and his Alpha Romeo.

 On July 24, 1992, after the criminal case against petitioner had been removed to the Northern District of New York, petitioner pled guilty to the two drug conspiracy charges that the Government brought against him pursuant to 21 U.S.C. §§ 841(a)(1), 846, 952(a), 960(b)(2)(a) and 963. Sentencing was scheduled for October 7, 1992. On August 31, 1992, the U.S. Attorney's Office in Albany, New York, asked the U.S. Customs office in Chicago to postpone planned administrative forfeiture proceedings until after completion of the criminal case. On September 2 and again on October 2, 1992, petitioner filed motions with the Customs Service to return the seized property and requested administrative consideration of his petitions. Apparently, both petitions were denied. On April 21, 1993, the U.S. Attorney's Office in Albany notified the U.S. Customs office in Chicago that they could proceed with administrative forfeiture of the car and currency.

 This Court sentenced petitioner to fifty-one months' imprisonment on July 16, 1993. On September 29, 1993, the U.S. Customs Office notified petitioner in writing that his first motion for return of the seized property had been denied and that he had thirty days to file a supplemental petition. The U.S. Customs Office wrote petitioner again on November 3, 1993, to inform him that he had failed to file a supplemental petition and that it would therefore commence a forfeiture action the following week. On November 30, 1993, the car and currency were forfeited to the United States. All tolled, the currency and the proceeds from the sale of the car amounted to $ 14,250.00. The U.S. Customs Service deducted $ 3,664.00 for "Customs Property Management Costs," kept twenty per cent of what remained ($ 2,117.20) and directed the rest ($ 8,468.80) to the New York State Police as an asset sharing payment.

 B. Law

 1. Halper

 "The Double Jeopardy 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." U.S. v. Halper, 490 U.S. 435, 440, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989). Petitioner's § 2255 motion implicates the third kind of abuse. Whether a criminal conviction and a civil penalty, such as an administrative forfeiture, constitute two punishments for the same offense turns on the nature of the civil sanction. "Under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution." Id. at 448-49.

 The Supreme Court declined to announce a bright-line test for distinguishing in all cases civil sanctions which merely accomplish the remedial purpose of making the Government whole from those that are "so disproportionate to the damages caused that [they] constitute[] a second punishment." Id. at 449-50. However, the Court did announce a "rule of reason" for courts to apply in "rare" cases where a fixed-penalty provision subjects an offender to a sanction "overwhelmingly disproportionate to the damages he has caused":

Where a defendant previously has sustained a criminal penalty and the civil penalty sought in the subsequent proceeding bears no rational relation to the goal of compensating the Government for its loss, but rather appears to qualify as "punishment" in the plain meaning of the word, then the defendant is entitled to an accounting of the Government's damages and costs to determine if the penalty sought in fact constitutes a second punishment.

 Id. at 449. In those rare cases, trial courts must determine, on the basis of the accounting, whether the civil sanction the Government receives is so large that it effectively imposes a second punishment. Id. at 449.

 The Court clarified the breadth of its holding with a few fixed rules. For instance, "fixed-penalty-plus-double-damages provisions" do not implicate the Double Jeopardy Clause because they merely serve to compensate the Government for its damages and costs. Id. at 449. The Court also noted that its holding would enable the Government to "seek[] and obtain[] both the full civil penalty ...

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