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Written by Brenda Grantland   
Tuesday, 30 May 1995 00:00






by Brenda Grantland, President, Forfeiture Endangers American Rights (this bulletin may be reprinted with attribution to F.E.A.R.)

Today, May 30, 1995, the U.S. Court of Appeals for the Ninth Circuit denied the government's petition for rehearing in the landmark double jeopardy and forfeiture case of U.S. v. $405,089.23, 33 F.3d 1210 (9th Cir. Sept. 6, 1994).

That case, which we at F.E.A.R. affectionately refer to as "$405K," (pronounced four-oh-five-kay) held that civil forfeiture triggers double jeopardy protection. Under that holding, criminal defendants who were prosecuted criminally and had property forfeited in a separate civil forfeiture case, for the same offense, were entitled to relief from whichever punishment happened second.

This ruling has already resulted in the release of numerous inmates in the Ninth Circuit. The Seventh Circuit and the Fifth Circuit have also recognized that the double jeopardy clause applies to forfeiture, but their opinions included exceptions to the rule which have not been adopted by the Ninth Circuit.

For obvious reasons, the Department of Justice didn't want $405K to

stand. Several months ago, the Justice Department filed a petition

for rehearing or rehearing en banc.[1]

The defendants in $405K, who were representing themselves with the aid of "jailhouse lawyer" Michael Montalvo, asked F.E.A.R. to help them defend the case against rehearing. A team of volunteer F.E.A.R. lawyers, comprised of Jeffrey Steinborn (Seattle, Washington), Jeff Finer (Takoma, Washington), Shawn Perez (Santa Ana, California) and Brenda Grantland (Mill Valley, California) agreed to enter the case as counsel for defendant Charles Arlt. Michael Montalvo stayed on the team.

The F.E.A.R. defense team filed their opposition to the petition for rehearing and waited for the government's reply. No reply was ever filed.

Today, the Ninth Circuit denied rehearing, with all the panel

members voting against rehearing. The full court of the Ninth

Circuit then voted down rehearing en banc.[1]

Several judges[2] filed a dissenting opinion, arguing that:

By failing to rehear this case 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.

The dissenters wrote at length about the San Francisco Chronicle article from May 11 about Judge Vaughn Walker's dismissal of numerous counts of an indictment pending against Pius Aileman, an Oakland criminal defendant who has had quite a bit of negative press. The Chronicle article was so slanted in favor of the government that it could have been scripted by the Justice Department.

Nevertheless, the majority of the Ninth Circuit stuck to its guns.

This is the first actual F.E.A.R. victory in court (as well as the first case F.E.A.R. volunteers have taken on!) A celebration is in order!

This case is Ninth Circuit Court of Appeals No. 93-55947.



[1] If rehearing had been granted, the Ninth Circuit would have given the case back to the same panel to render a new opinion. If "rehearing en banc" had been granted, the case would have been given to the entire panel of judges of the Ninth Circuit (rather than a 3-judge panel) for decision. A majority of the active judges of the Circuit must vote for rehearing en banc before rehearing en banc is granted.

[2] Dissenting opinion filed by Rymer, with whom Hall, Wiggins, Kozinsik, O'Scannlain, Trott and T.G. Nelson joined.


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