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State v. Frodert

October 18, 1996


Appeal from Superior Court of Thurston County. Docket No: 91-2-02460-7. Date filed: 11/17/92. Judge signing: Hon. Paula K. Casey.

Petition for Review Denied April 2, 1997,

Authored by John E. Turner. Concurring: J. Dean Morgan, Elaine M. Houghton

The opinion of the court was delivered by: Turner

TURNER, J. -- Frodert was convicted of leading organized crime and other related drug charges. Then the State obtained a $250,000 civil judgment against Frodert based on his violation of the Criminal Profiteering Act. Frodert appeals the civil judgment, arguing that it violates the double jeopardy clause and the excessive fines clause of the Eighth Amendment. He also contends that the Criminal Profiteering Act is unconstitutional because it violates due process. Finally, he asserts that he was denied his constitutional right to legal counsel. We hold that the civil judgment in this case did not violate the double jeopardy clause or the Eighth Amendment's excessive fines clause because it is remedial in nature and thus does not constitute punishment. We uphold the constitutionality of the Criminal Profiteering Act because it provides sufficient process before seizure, forfeiture or the imposition of a penalty. Finally, we hold that Frodert was not entitled to representation by legal counsel because the civil suit did not involve a risk of incarceration. Thus, we affirm the $250,000 civil judgment imposed by the trial court.


Klaus Frodert was arrested on October 3, 1991, on suspicion of various drug-related offenses. He was ultimately charged with seven counts, including: one count of leading organized crime; four counts of delivery of a controlled substance; and two counts of possession with intent to deliver.

On October 16, 1991, the State brought a civil action under RCW 9A.82.100 against Frodert seeking orders "to prevent, restrain, and remedy the pattern of criminal profiteering . . . ." Specifically, the State sought: (1) a money judgment in the amount of the financial gain Frodert obtained through criminal acts, RCW 9A.82.100(4)(g); (2) a civil penalty of $250,000, RCW 9A.82.100(1)(d); (3) forfeiture of Frodert's interest in real property subject to forfeiture, RCW 9A.82.100(4)(f); and (4) payment of the costs of investigation and prosecution, including attorney fees, incurred by the State, RCW 9A.82.100(4)(e).

In April 1992, Frodert was convicted of leading organized crime in violation of RCW 9A.82.060 as well as a number of the other charged drug offenses. In August 1992, the State moved for summary judgment against Frodert in the civil action. The State sought a $250,000 civil penalty under RCW 9A.82.100(1)(d), investigation costs and attorney fees. At the summary judgment hearing, the State argued that a civil judgment of $250,000 was justified by the large profit realized through Frodert's criminal conduct.

On October 21, 1992, the trial court granted the State's motion for summary judgment and awarded judgment against Frodert under the civil penalty provision of RCW 9A.82.100(1)(d). At a later hearing, the court entered a civil judgment in the amount of $250,000 plus $3,300 for investigative costs and fees. Frodert appealed.


I. Double Jeopardy

The $250,000 civil judgment against Frodert references RCW 9A.82.100(1)(d). *fn1 Nevertheless, the record indicates that the judgment was actually sought and ordered under a different subsection, RCW 9A.82.100(4)(g). *fn2 That subsection authorizes judgment for the State in "an amount equal to the gain a person has acquired or maintained through an offense included in the definition of criminal profiteering." RCW 9A.82.100(4)(g). Exercising our discretion to affirm on any grounds supported by the record, Syrovy v. Alpine Resources, Inc., 80 Wash. App. 50, 906 P.2d 377 (1995), review denied, 129 Wash. 2d 1012, 917 P.2d 130 (1996), we hold that the civil judgment was proper under RCW 9A.82.100(4)(g) and that civil judgments under that provision do not run afoul of the double jeopardy clause. See also State v. Halsen, 111 Wash. 2d 121, 757 P.2d 531 (1988) (upholding restitution award, even though trial court relied on wrong statute in ordering restitution, where award was warranted under proper statute).

The double jeopardy clause of the Fifth Amendment prohibits, among other things, multiple punishments for the same offense imposed in separate proceedings. United States v. Halper, 490 U.S. 435, 440, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989); State v. Gocken, 127 Wash. 2d 95, 100, 896 P.2d 1267 (1995). Whether a defendant's double jeopardy rights have been violated is a question of law and thus is reviewed de novo. United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 566 (9th Cir. 1995).

To determine whether the double jeopardy clause applies to prohibit a civil judgment here, we must first ascertain (a) whether the imposition of a civil judgment constitutes "punishment," and if so, (b) whether the civil action and the criminal prosecution constitute separate proceedings arising from the "same offense." See, e.g., United States v. $405,089.23 in U.S. Currency, 33 F.3d 1210, 1216 (9th Cir. 1994), 56 F.3d 41 (1995), rev'd on other grounds, U.S. (1996); State v. Cole, 128 Wash. 2d 262, 294, 906 P.2d 925 (1995) ( Johnson, J., Dissenting); State v. Higley, 78 Wash. App. 172, 179, 902 P.2d 659, review denied, 128 Wash. 2d 1003, 907 P.2d 296 (1995). If each of these inquiries is answered in the affirmative, the ...

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