Appeal from the United States District Court for the Western District of Washington. D.C. No. CR-94-00411-WTM. Walter T. McGovern, Senior District Judge, Presiding.
Before: James R. Browning, Eugene A. Wright, and Thomas G. Nelson, Circuit Judges. Opinion by Judge T.g. Nelson.
T.G. NELSON, Circuit Judge:
Ronald Chick interlocutorily appeals the district court's denial of a motion to dismiss his criminal prosecution on the basis of double jeopardy. Chick is charged with one count of conspiring to sell illegally modified satellite descramblers in violation of 18 U.S.C. § 371 and § 2512(1)(b), and seventeen counts of selling descramblers in violation of 18 U.S.C. § 2512(1)(b). Chick contends the criminal charges should be dismissed because he has already been subjected to punishment for the same offenses through a civil forfeiture action under 18 U.S.C. § 2513, which ultimately resulted in the entry of a consent judgment. We have jurisdiction over this interlocutory appeal, and we affirm.
I. FACTS AND PRIOR PROCEEDINGS
Based on an FBI agent's affidavit alleging that Chick illegally modified and sold television "descrambler modules," which allowed users to receive cable and satellite television channels without payment, a magistrate issued warrants to search Chick's house and storage locker. The warrants were executed on April 1, 1993, and a vast array of items were seized, including more than fifty descramblers.
On November 19, 1993, the Government filed a civil complaint seeking forfeiture of equipment seized from Chick's residence. The complaint alleged that the seized equipment was subject to forfeiture under 18 U.S.C. § 2513, because it was used to intercept electronic communications through satellite television descramblers and the unauthorized interception of private satellite video communications, either scrambled or encrypted, for financial gain in violation of 18 U.S.C. § 2511. On August 30, 1994, Chick and the Government entered into a consent judgment to settle the forfeiture action, and on August 31, 1994, the case was dismissed.
On July 26, 1994, a grand jury returned an indictment charging Chick and his sister with engaging in a conspiracy to "assemble, possess, and sell" satellite descrambler modules that allowed the descrambling of certain television programming without payment of subscription fees. Chick was also charged with twelve substantive violations of 18 U.S.C. § 2512, for selling illegal descrambler units. On October 18, 1994, the grand jury returned a superceding indictment which charged Chick with five more counts of selling illegal descrambler units.
Before trial, Chick moved to dismiss the criminal charges against him on the grounds that they violated the Double Jeopardy Clause. Chick argued that the prior civil forfeiture of some of the equipment seized from his home constituted punishment for the same offenses charged in the criminal indictment. The district court denied the motion, concluding that the civil forfeiture action and the impending prosecution were not based upon the same offenses.
Based on United States v. Castiglione, 876 F.2d 73, 75 (9th Cir. 1988), cert. denied, 493 U.S. 954, 107 L. Ed. 2d 351, 110 S. Ct. 365 (1989), together with a finding that Chick had raised a colorable double jeopardy claim, the district court certified the issue for an interlocutory appeal and Chick timely filed his Notice of Appeal with this court.
The Government contends that we lack jurisdiction over this interlocutory appeal because Chick has not been subjected to multiple criminal prosecutions, and because he has yet to be subjected to multiple punishments. In essence, the Government argues that exposure to multiple punishments cannot be interlocutorily appealed because the multiple punishments prong of the Double Jeopardy Clause is not violated until the subsequent punishment is actually imposed. We disagree.
An appeal from a pretrial order denying a motion to dismiss an indictment is typically considered interlocutory, and, therefore, not appealable as a final decision under 28 U.S.C. § 1291. However, where judgment has been entered in a civil forfeiture proceeding, and a defendant moves to dismiss a subsequent criminal prosecution on double jeopardy grounds, we find the pretrial order denying the motion to dismiss appealable under the collateral order exception to the final judgment rule and Abney v. United States, 431 U.S. 651, 52 L. Ed. 2d 651, 97 S. Ct. 2034 (1977).*fn1
In Abney, the Supreme Court specifically held that "courts of appeals may exercise jurisdiction over an appeal from a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds." 431 U.S. at 662 (emphasis added). Unlike this case, where Chick seeks to avoid an impending criminal prosecution, Abney involved a defendant's challenge to a second criminal prosecution. Nevertheless, the basis for permitting an interlocutory ...