Full opinion text
REPORT AND RECOMMENDATION RE MOTION BY DEFENDANT AILEMEN TO DISMISS ON GROUNDS OF DOUBLE JEOPARDY BRAZIL, United States Magistrate Judge. INTRODUCTION Given the holding by the Court of Appeals for the Ninth Circuit in United States v. $^05,089.23 U.S. Currency (referred to hereafter as Arlt, the surname of the lead defendant), 33 F.3d 1210 (9th Cir.1994), and the findings of fact made in the next section, I need address in depth only two issues to rule on defendant’s motion to dismiss based on the Double Jeopardy Clause of the Fifth Amendment. These two issues are: (1) whether defendant’s failure to file claims in the forfeiture actions of which he had notice forecloses application of the Double Jeopardy doctrine, and, if not, (2) whether some or all of the offenses with which defendant Pius Ailemen is charged in the Superseding Indictment (filed July 11, 1994) are the same offenses for which punishment was imposed on him through the forfeiture proceedings. FINDINGS OF FACT 1. In 1989 a grand jury indicted Pius Ailemen on charges of conspiring to import heroin into the United States, conspiring to possess with intent to distribute heroin, distributing heroin, procuring interstate travel in furtherance of a business enterprise to unlawfully import and distribute heroin, making false statements to the INS, and making false statements in an application for a passport. Superseding Indictment in CR 89-0585 WHO, filed Nov. 30, 1989. 2. On October 5, 1989, federal agents seized $12,012 in currency and one cellular telephone from Pius Ailemen (aka Mu-hammed Musiliu Popoola). The seizure and subsequent forfeiture action were based on the allegation that the currency and phone had been “used or acquired as a result of a drug-related offense.” Exhibits 1 and 2 in Support of Defendant’s Motion to Dismiss, Feb. 7, 1995 (emphasis in original). 3. On October 12, 1989, agents seized an additional $15,000 in currency from Pius Ailemen, again on the ground that this money had been used in or acquired through illegal drug trafficking. Id., Ex. 3. 4. In December of 1989, Pius Ailemen, through counsel, filed formal notices of claims of ownership in the $12,012 and in the $15,000. Id. 5. Though the details of the remainder of the forfeiture process in 1989 and 1990 are not clear (e.g., it is not clear whether Pius Ailemen took all the steps necessary to compel the government to file a complaint for forfeiture in the district court, or whether, if such a complaint was filed, whether he formally answered it or presented evidence to try to defeat the forfeiture action), it appears that the property identified in paragraphs 2 and 3, above, eventually was forfeited to the United States. Uncontested averments in defense counsel’s Memorandum in Support of Pius Ailemen’s Motion to Dismiss, Feb. 7, 1995, at 2. 6. After a trial in 1990, a jury acquitted Pius Ailemen of the drug charges in the superseding indictment, but convicted him of passport fraud. Court file in CR 89-0585 SC, Docket Numbers 96, 108, and 113. See also Ex. 12 in Support of Ailemen’s Motion to Dismiss, filed February 7,1995, and Affidavit of Special Agent Robert J. Silano in Support of Application to Extend Authorization for Wiretap, filed November 10, 1993, at pages 13-14. 7. Despite the 1989-90 prosecution, the government believed that Pius Ailemen’s “heroin trafficking organization [remained] intact” and that after he was released from custody he resumed his activities running a major drug trafficking organization. Affidavit of Special A^ent Robert J. Silano in Support of Application for authorization to intercept wire communications (a wiretap), filed July 29, 1993, at pp. 8-9. It is not clear how aggressive the monitoring and investigation of Ailemen’s activities were until the latter part of 1992. 8. By no later than October of 1992 agents of the DEA, working undercover and with the help of a confidential informant, were actively developing evidence of Ailemen’s alleged drug trafficking operations. Id., at 9 and 10. 9. On July 29, 1993, the government formally applied for authorization to establish a wiretap for use in this investigation. Id. In the Affidavit of Special Agent Robert J. Silano filed in support of the wiretap application the government alleged that it had probable cause to believe that Pius Ailemen and others, including Sidney Gladney and Robert Tinney, “have committed,, are committing, and will continue to commit the following offenses: importing a controlled substance in violation of Title 18, United States Code, Section 545 and Title 21, United States Code, Sections 952 and 960; distributing and possessing with intent to distribute a controlled substance in violation of Title 21, United States Code, Section 841(a)(1); conspiracy to import and conspiracy to distribute controlled substances in violation of Title 21, United States Code, Sections 963 and 846; use of a communication facility to commit or facilitate the commission of the foregoing offenses in violation of Title 21, United States Code, Section 843(b); and violations of Title 18, United States Code, Section 1952, involving travel in interstate or foreign commerce to promote, manage, establish or carry on an unlawful activity, to wit, a narcotics trafficking enterprise.” Id., at 3. The government also claimed in this affidavit that it had probable cause to believe that the conversations to be intercepted would concern the methods and means by which Ailemen and others managed and carried out “their heroin and cocaine operation.” Id., at 4. A confidential informant whom the government perceived as reliable provided information beginning as early as October of 1992 that indicated that Ailemen and others were heavily involved “in cocaine and white heroin trafficking organizations”. Id., at 9. And an undercover agent allegedly had extensive conversations with Ailemen related to plans to import cocaine from Mexico and to exchange Ailemen’s heroin for cocaine from a Columbian source. Id., at 11, 15, 25-27, 29-33, 35, 39, 45. 10. On July 29, 1993, District Judge D. Lowell Jensen signed an order “Authorizing Interception of Wire Communications”. CR-93-320 MISC. Based on a series of affidavits from DEA agents and a submission by counsel for the government, Judge Jensen extended this wiretap authorization four times, so DEA agents were permitted to monitor a very large number of Pius Ailemen’s conversations over a period running well into December of 1993. 11. On August 30, 1993, Special Agent William de Freitas executed and submitted to Judge Jensen an affidavit in support of a request to extend the wiretap authorization. In that affidavit, Agent de Freitas affirmed his belief that the evidence thus far generated by the government established probable cause to believe that Pius Ailemen and others had been and continued to be involved in, among other things, a “conspiracy to import and conspiracy to distribute controlled substances,” “offenses involving the laundering of monetary instruments representing the proceeds of unlawful activity and those involving monetary transactions in criminally derived property, in violation of Title 18, United States Code, Sections 1956 and 1957,” and “travel in interstate or foreign commerce to promote, manage, establish, or carry on an unlawful activity, to wit, a narcotics trafficking enterprise, in violation of Title 18, United States Code, Section 1952.” de Freitas Affidavit of August 30, 1993, at 7-8. This affidavit proceeded to set forth evidence that Pius Ailemen and his agents were trying to orchestrate transactions not only in heroin, but also in large quantities of cocaine, were trying to launder proceeds of drug deals, and that Pius Ailemen was the principal manager/leader of an ongoing drug trafficking enterprise that involved at least six other people. See, e.g., pages 12, 20 and 23. 12. During September of 1993 DEA agents monitored many telephone conversations between Pius Ailemen in California and co-defendant Dele Ailemen in London, England. When Dele Ailemen arrived at Los Angeles International Airport on September 18, 1993 after a flight from England he declared to the U.S. Customs Service that he was bringing $60,000 into the United States. When the funds were counted, they totaled $48,260. These funds were “seized by DEA agents as drug proceeds based upon pertinent conversations intercepted between Pius Ailemen and Dele Ailemen during the wiretap.” Affidavit of Special Agent Amie Stanton in Support of Complaint filed December 20, 1993, at p. 48. 13. On October 1, 1993, Special Agent Robert J. Silano executed and presented to Judge Jensen another affidavit in support of another request to extend the wiretap authorization. In this affidavit Agent Silano again swore that the government had probable cause to believe that Pius Ailemen was involved in systematic, large scale drug trafficking operations that involved use of telephones, interstate and international travel, and money laundering. See, e.g., note 1 on page 15, which states: “On September 4, 1993, from approximately 12:00 noon to 6:00 p.m., undercover agents who posed as narcotics traffickers met with Ellis Quarshie. Quarshie told them about Ailemen’s method of importing heroin, transporting heroin domestically, purchasing cocaine and transporting it to Europe and Canada, and laundering money domestically and internationally.” This affidavit also portrays Pius Ailemen as the leader of the alleged organization. See, e.g., page 11, where Agent Silano affirms that conversations intercepted under earlier issued orders “show the extent to which Ailemen issues directives to member of his organization.” See also page 20, where one of the traffickers alleged states specifically that Pius is his boss. This affidavit further recites considerable evidence that Ailemen was conspiring to traffic not only in heroin but also in cocaine (see, e.g., pages 11, 12, 15-16, 18-20, and 26) and that he was deeply involved in multiple money-laundering maneuvers (see, e.g., pages 21-25, 27-30). 14. Special Agents of the DEA executed additional affidavits to support requests to extend the wiretap authorization on November 8, November 10, and December 9, 1993. In the Extension Application filed on November 9,1993, Assistant United States Attorney Theresa J. Canepa affirmed that she had discussed the DEA investigation and evidence with the lead Special Agents (Silano and De Freitas), reviewed Agent Silano’s Affidavit of November 8, 1993, and concluded, based thereon, that the government had probable cause to believe that Pius Ailemen and others had unlawfully imported a controlled substance, distributed a controlled substance, conspired to import and to distribute controlled substances, used communication facilities to facilitate drug trafficking offense, laundered monetary instruments, and travelled “in interstate or foreign commerce to promote, manage, establish, or carry on ... a narcotics trafficking enterprise.” Canepa Affidavit of November 8, 1993, at 4-5. 15. On December 14, 1993, after they allegedly heard screams from his room at the Stouffer Mayflower Hotel in Washington, D.C., federal agents determined that Pius Ailemen had been stabbed, apparently by persons sent to perpetrate a “drug rip off” from him. Affidavit of Special Agent Amie Stanton, December 20, 1993, filed in support of the criminal complaints filed that day, at page 69. 16. On December 14, 1993, a search was made, pursuant to a warrant, of Pius Ailemen’s room in the Stouffer Mayflower Hotel in Washington, D.C. The government has never suggested that anyone other than Pius Ailemen was registered as an occupant of this room. The search of Ailemen’s room yielded, among other things, $1,000 in U.S. currency, which agents of the government promptly seized. Exhibits 4 and 12 to Pius Ailemen’s Motion to Dismiss, filed February 7, 1995. 17. On December 15,1993, federal agents searched Pius Ailemen’s apartment at 565 Bellevue Avenue in Oakland, California. In that search the agents found $2,500 in U.S. currency in a suit in the master bedroom and another $2,400 in a suit in the “master closet”. Ex. 13 to Pius Ailemen’s Motion to Dismiss, February 7, 1995. The agents immediately seized these funds. Ex. 5 to same Motion. 18. On December 20, 1993, the government filed criminal complaints against Pius Ailemen and others, charging them generally with conspiracy to distribute more than one kilogram of heroin (21 U.S.C. sec. 846) over a period beginning no later than October 30, 1992, and extending through December 21, 1993. Cr. Complaint 3-93-786 SL. These complaints were supported by an eighty-two page affidavit by Special Agent Amie Stanton; this primary affidavit incorporated by reference the six affidavits (which ranged in length from 33 to 88 pages) that had been presented during the preceding half-year to District Judge Jensen in support of the wiretap and its extensions. These affidavits contained information that the government believed implicated Pius Ailemen in ongoing, multi-faceted, inter-state and international narcotics distribution activities—including some alleged direct sales of heroin to undercover agents. 19. Pius Ailemen was arrested on the charges reflected in the December 20, 1993 complaint and has been in custody under a detention order for well over a year. 20. On January 3, 1994, the government filed the first indictment in this ease (CR 94 0003 VRW). That indictment charged Pius Ailemen with (1) conspiring, over a period beginning no later than April of 1992 and continuing through December 18, 1993, to distribute more than one kilogram of heroin, in violation of 21 U.S.C. sec. 841(a)(1); (2) distributing heroin on December 12, 1992, in violation of that same statutory provision; (3) distributing heroin on February 11, 1993, in violation of the same statute; (4) distributing heroin on August 11, 1993, in violation of the same statute; (5) travelling in interstate commerce on December 13, 1993, with the intent to promote and carry on a business enterprise involving narcotics, in violation of 18 U.S.C. sec. 1952(a)(3); (6) using a telephone (with Sidney Gladney) on August 1, August 26, September 16, September 17, and December 1, 1993, to facilitate trafficking in heroin, in violation of 21 U.S.C. sec. 843(b); (7) using a telephone (with Kingsley Amaechi Ofomata) on August 4, September 3, September 25, October 15, November 10 and December 10, 1993, to facilitate trafficking in heroin, in violation of 21 U.S.C. sec. 843(b); (8) using a telephone (with Nathaniel Theukwu) on August 11,12 (twice), and 25,1993, and on October 14, 1993, and on November 18, 19, and 24, 1993, and on December 3 and 10, 1993, to facilitate trafficking in heroin, in violation of 21 U.S.C. sec. 843(b); (9) using a telephone (with Ellis Quarshie) on September 4, October 15, November 20 and November 22, 1993, to facilitate trafficking in heroin, in violation of 21 US.C. sec. 843(b); (10) using a telephone (with Dele Ailemen) on September 7, 8 (twice), 9 (twice), 13, 16, and 17, 1993, to facilitate trafficking in heroin, in violation of 21 U.S.C. see. 843(b); (11) using a telephone (with Robert Tinney) on September 7, October 8, October 11, October 19, December 6 and December 13,1993, to facilitate trafficking in heroin, in violation of 21 U.S.C. sec. 843(b); (12) using a telephone (with Victor Onuaguluchi) on October 2 and November 22 (twice), 1993, to facilitate trafficking in heroin, in violation of 21 U.S.C. sec. 843(b); (13) using a telephone (with Keesha Duncan) on October 10 (twice). October 15, and November 24, 1993, to facilitate trafficking in heroin, in violation of 21 U.S.C. sec. 843(b); and (14) using a telephone (with Joycelyn Diane Lane) on November 29 and November 30 (twice), 1993, and on December 3, 1993, to facilitate trafficking in heroin, in violation of 21 U.S.C. sec. 843(b). As part of the conspiracy count, the government further charged that Pius Ailemen “would and did organize, supervise, manage and arrange for the distribution of heroin by coconspirators” and “would and did oversee, direct and assume responsibility for obtaining quantities of heroin from other eoeonspirators.” January 3, 1994 Indictment, at p. 3. In addition, the government charged that as part of the drug trafficking conspiracy Pius Ailemen and others “would and did possess and transport large sums of cash, derived from the distribution of heroin.” Id. Further, the indictment charged that it was part of the conspiracy for Pius Ailemen and others to “conduct financial transactions in cash in order to conceal their trafficking in narcotics”. Id. 21. On January 26, 1994, the government first published notice of its seizure and intent to forfeit the $1,000 that agents had taken from Pius Ailemen’s hotel room in Washington, D.C. on December 14,1993. Exhibits in Support of Defendant Pius Ailemen’s Motion to Dismiss, filed February 7, 1994, Ex. 3. 22. On March 16, 1994, the government addressed a “Notice of Seizure” of the $1,000 to Pius Ailemen c/o the Pleasanton Federal Detention Center in Dublin, CA. Id. In that Notice, Ailemen was told, among other things, that he was required to file any claim of ownership “within twenty (20) days of the first date of publication of the notice of seizure in the edition of the USA Today newspaper referenced above.” (emphasis in original). Inexplicably, there is no reference in the “Notice of Seizure” to any edition of the “USA Today newspaper”, or any other newspaper. The Notice does identify the “DATE OF FIRST PUBLICATION”, but that date is January 26,1994—some 47 days before the date this Notice was mailed. Thus it remains something of a mystery as to how Ailemen could have been expected to comply with the requirement of filing a claim within 20 days of the first date of publication. The significance of that impossibility is not clear, however, because in larger type and at a different place on the same Notice the government informs the recipient that he has “20 DAYS FROM RECEIPT OF THIS NOTICE TO FILE A CLAIM WITH THIS OFFICE.” On this same “Notice of Seizure” the government identified only one “OWNER” of the seized $1,000: “Ailemen, Pius”. The government also reported on this Notice that this money was “SEIZED FROM: AILEMEN, PIUS.” At the hearing on this motion, defense counsel asserted, without contradiction by the government, that the only person to whom the government sent this Notice of Seizure was defendant Pius Ailemen. That fact is of some import, given the statement by the government a few months later in its DECLARATION OF FORFEITURE that “Notice of the seizure has been sent to all known parties who may have a legal or possessory interest in the property.” It also is significant that in this DECLARATION the government again stated that it had seized this money from Pius Ailemen and again identified only him as its owner. This DECLARATION also is in Ex. 4 of the Exhibits in Support of Defendant Pius Ailemen’s Motion to Dismiss, filed February 7, 1995. 23. While Pius Ailemen decided, on advice of counsel, not to file a claim to this $1,000 in the administrative proceeding, he now asserts that the $1,000 was his. The only “evidence” to which the government has pointed that tends in any way to cast any doubt on this assertion is a statement attributed to one of the persons who allegedly assaulted Ailemen in his hotel room: when first apprehended, that person (Douglas Fullard) allegedly stated that “the fight [with Ailemen] concerned the ‘messing up of my money.’ ” Affidavit in Support of a Superior Court Search Warrant, executed by David N. Hayes, Detective, December 14, 1993, Ex. 12 of the Exhibits in Support of Defendant Pius Ailemen’s Motion to Dismiss, filed Feb. 7, 1995. This “evidence” lends virtually no support to the suggestion that the $1,000 was not Ailemen’s. The government’s own theory of the altercation in Ailemen’s room is that it was a drug “rip-off’, meaning an effort by one set of dealers to forcibly take drugs from another dealer. Affidavit of Special Agent Amie Stanton, December 20, 1993, filed in support of the Complaint in this matter, filed the same day. Moreover, there is little reason to believe that Fullard was referring to this relatively small amount of money in Ailemen’s room when he spoke of the “messing up of my money.” It hardly seems likely that Fullard and his companion would have attempted to murder Mr. Ailemen over $1,000—and then left that money in his room. It is much more likely that if there was any truth at all in the assertion that the assault was about messing with his money, the amount was a lot bigger and had nothing to do with the $1,000 in Ailemen’s room. It also is noteworthy that the government never sent a Notice of Seizure to Mr. Fullard—and never identified Mr. Fullard as having any possible claim to those funds. Given all the circumstances described here, as well as the circumstances in which the money was seized (from a hotel room of which it appears Pius Ailemen was the sole occupant) (see paragraphs 12 and 13, above), I hereby FIND as a FACT that Pius Ailemen was the owner of the $1,000 here is question. 24. The “Notice of Seizure” formally advised Pius Ailemen that the $1,000 “was seized by Special Agents of the Drug Enforcement Administration (DEA) for forfeiture under Title 21, United States Code (U.S.C.), Section 881, because it was used or acquired as a result of a drug-related offense. (See Title 21, Code of Federal Regulations (C.F.R.), Section 1316.91(d) (54 Federal Register 37610-37611) for the definition of the term ‘drug-related offense.’)” (emphasis in original). 25. The “Notice of Seizure” further advised Pius Ailemen that he had twenty days from March 16, 1994, to file a claim to the property or to file a notice that he wished to contest its forfeiture. 26. Pius Ailemen admits that he received this Notice, but states that he decided, on advice of counsel, not to file a claim or to contest the forfeiture—“in order to preserve his Fifth Amendment right against self-inerimination.” Memorandum of Points and Authorities in Support of Defendant Pius Ailemen’s Motion to Suppress, Feb. 7, 1995, at 18-19. 27. On May 6, 1994, the DEA issued its “DECLARATION OF FORFEITURE” for the $1,000—stating that the property had been forfeited administratively to the government after no one had presented a claim. 28. On February 7,1994, the DEA sent a “Notice of Seizure” to Pius Ailemen for the $4,900 that the government took on December 15, 1993, from pockets of two different suits (one in the master bedroom, the other in the master closet) in Pius Ailemen’s apartment in Oakland. Ex. 5 of Exhibits in Support of Defendant Pius Ailemen’s Motion to Dismiss, filed Feb. 7, 1995. This Notice reported that the person from whom the government had seized the $4,900 was Pius Ailemen, but did not indicate who the owner of this money was. Id. The notice contained the same assertion that was in the Notice with respect to the $1,000—that the money was seized “because it was used or acquired as a result of a drug-related offense.” (again, emphasis in original). The government sent this notice to Mr. Ailemen in the detention center where it knew he was in custody. 29. In its subsequent DECLARATION OF FORFEITURE the government repeated that the property had been seized from Pius Ailemen and this time identified the owner of the property as “Ailemen, Pius”. This DECLARATION also asserted that the government sent notice of the seizure of this money “to all known parties who may have a legal or possessory interest in the property.” Also in Ex. 5, Id. 30. Just as with the $1,000 discussed above, the government has not contradicted the assertion by defense counsel that the only person to whom the government sent notice of the seizure of this property was Pius Ailemen. Nor has the government pointed to any evidence that would support an inference that this money that was taken from Ailemen’s pants pockets, in his apartment, was not his. He asserts now that this property was his—and except for the fact that he made no claim to it in the administrative process (a decision he made to protect his rights under the Constitution not to incriminate himself), there is no reason to question this claim to ownership. Given the substantial weight of the circumstantial evidence that supports his claim, and the complete lack of evidence that would tend to contradict it, I hereby FIND as a matter of FACT that Pius Ailemen is the owner of this $4,900. 31. The Notice of Seizure of the $4,900 gave Pius Ailemen twenty days from February 16, 1994, to present a claim. He admits that he received this Notice, but again asserts that, on advice of counsel, in order to preserve his Fifth Amendment right not to incriminate himself, he decided not to file a claim to this money. 32. Having received no claim to the property, the government issued its DECLARATION OF FORFEITURE on April 22, 1994. Ex. 5, Id. 33. Given the findings made above, the court need not resolve the more complicated issue of who owned the 1991 Alfa Romeo automobile that government agents seized on December 21, 1993, and apparently later forfeited when no claim was made for it. See Ex. 6, Id. 34. On July 11, 1994, the government filed the Superseding Indictment under which this case is now being prosecuted. Pius Ailemen and others, including Sidney Gladney, are charged in Count One of this Indictment with conspiring, from no later than the summer or fall of 1991 until about the middle of December of 1993, to distribute more than one kilogram of a substance containing a detectable amount of heroin and more than one kilogram of a substance containing a detectable amount of cocaine. Among the 126 Overt Acts allegedly committed in furtherance of the conspiracy in Count One, several involve alleged transactions with cocaine that were not alleged in the original (January 3, 1994) Indictment. Most of these alleged acts occurred in the winter and spring of 1992 and involved the sale, packaging, and movement overseas of at least one kilogram of cocaine. Overt Acts 7 through 15, page 5, of the Superseding Indictment. The Overt Acts alleged in the Superseding Indictment also include an allegation that in the fall of 1992 one of the defendant’s, at Pius Ailemen’s direction, delivered about two kilograms of cocaine to Los Angeles. Id., Overt Act 35 at page 7. This allegation also did not appear in the original Indictment. 35. Count Two of the Superseding Indictment charges Pius Ailemen with engaging in a continuing criminal enterprise between the summer of 1991 and December 18, 1993. This Count sets forth five sets of allegations that allegedly constitute the requisite series of violations in concert with at least five other persons as to whom Pius Ademen acted as an organizer, supervisor or manager. All of these alleged violations involve heroin— some specific sales, some specific uses of a telephone to promote the sales, and a conspiracy to distribute heroin allegedly beginning no later than the summer of 1991. 36. Counts Three through Twenty-four and Twenty-six through Thirty-eight of the Superseding Indictment re-charge Pius Ademen (and, sometimes, others) with offenses that also were charged in the original Indictment (distribution of heroin on specific dates, use of the telephone with specified persons on specific dates to facilitate drug trafficking, and travel in interstate commerce to facilitate a drug trafficking business). 37. Count Twenty-five of the Superseding Indictment adeges that Pius Ademen and Dele Ademen used a telephone to facilitate drug trafficking on September 13, 1993 at 7:24 p.m. That specific charge does not appear in the original Indictment, which alleged that Pius and Dele Ademen unlawfully used a telephone on that date, but only once and at 3:58 p.m. That alleged 3:58 p.m. call is recharged in the Superseding Indictment (as Count Twenty-four), but the call that serves as the basis for Count Twenty-five in the Superseding Indictment is not charged separately in the original Indictment. However, among the Overt Acts charged in the original Indictment as part of the conspiracy count, the government alleged that Pius and Dele Ailemen engaged in three apparently different telephone conversations on September 13, 1993. Moreover, the Affidavit of Special Agent Amie Stanton (December 20, 1993) that was filed in support of the Complaint that initiated this prosecution specifically describes four different telephone conversations between Pius and Dele Ailemen on September 13, 1993, one of which occurred at 7:24 p.m. and apparently related to the alleged drug trafficking. Thus it appears that the government had sufficient information about the 7:24 phone call to charge it in the original indictment. 38. The Superseding Indictment includes one other charge against Pius Ailemen that was not separately presented in the original Indictment. In Count Forty-one of the Superseding Indictment the government contends that between about September 7 and about September 18, 1993, Pius and Dele Ailemen, along with others not named, conspired to launder monetary instruments in violation of 18 U.S.C. sec. 1956(a)(2)(A). Some of the eight Overt Acts alleged in the Superseding Indictment to have been committed in furtherance of this conspiracy were pled, some with less specificity, in the original Indictment as having been committed in furtherance of the conspiracy to distribute heroin that was charged as Count One of that earlier pleading. Two of the Overt Acts alleged in Count Forty-One do not appear to have been pled in the original Indictment: Overt Act number 4 alleges that Pius Ailemen took possession of $6,000 through an American Express Money Transfer check on September 10, 1993, and Overt Act 7 alleges that Pius Ailemen took receipt of five separate Western Union wire transfers totaling $5,000 on September 9, 1993. RECOMMENDED CONCLUSIONS OF LAW IMPLICATIONS OF AILEMEN’S FAILURE TO MAKE A CLAIM IN THE ADMINISTRATIVE FORFEITURE PROCESS The Double Jeopardy Clause of the Fifth Amendment offers protection against both multiple prosecutions and multiple punishments (through separate proceedings) for the same offense. United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989). After United States v. $Jp05,089.23 U.S. Currency, 33 F.3d 1210 (9th Cir.1994) (cited hereafter as Arlt), it is clear that in the Ninth Circuit civil forfeiture proceedings of the kind instituted here and criminal prosecutions constitute “separate” proceedings for purposes of Double Jeopardy analysis—and that a civil forfeiture that causes a person to lose his property “as a result of a drug-related offense” imposes “punishment” that can trigger the protections of the Double Jeopardy clause. See Quinones-Ruiz v. United States, 864 F.Supp. 983, 986 (S.D.Cal.1994); United States v. Alejandro Sanchez Cobarruvias, 94-0732 IEG (S.D.Cal. October 13,1994); United States v. Palmar-Cheque, CR 94-0345 GT (S.D.Cal. Jan. 6, 1995); United States v. Aguilar, 886 F.Supp. 740 (E.D.Wash.1994); United States v. Heitzman, 886 F.Supp. 737 (E.D.Wash. 1994); United States v. Plunk, A94-036 CR (JWS) (D.Aaska Nov. 17, 1994). The first of the difficult issues presented by defendant Pius Ailemen’s motion arises because he decided not to file a claim to either the $1,000 that was seized from his hotel room or the $4,900 that was seized from the pockets of his pants in his apartment. The government contends that that failure is fatal to Ailemen’s Double Jeopardy challenge. In support of its position, the government appears to rely primarily on three arguments: (1) by voluntarily deciding not to become a party to the forfeiture action, Ailemen decided not to put himself in jeopardy in that proceeding, and since he was never in jeopardy in that proceeding (jeopardy never attached), it is impossible for the current criminal prosecution to expose him to “double” jeopardy, relying on United States v. Torres, 28 F.3d 1463 (7th Cir.1994); (2) by voluntarily deciding not to make a claim in the forfeiture proceeding, Ailemen waived (a) his right to assert later (here) that he was the owner of the seized property, and (b) his right to complain about the loss of the property, and (c) any right under the Double Jeopardy clause that would arise only because of the forfeiture proceeding; and (3) by deciding not to make a claim to the property in the forfeiture proceeding, Ailemen has made it impossible to determine reliably who actually owned the subject property—so its forfeiture cannot be considered punishment of him. TORRES Counsel for Ailemen contends that Torres is distinguishable in a critical way from the case at bar—pointing out that in that case the Seventh Circuit panel said it had “no reason to believe that [Torres] owned or had any interest in the money. Even in the criminal proceeding, he has not said that he was the funds’ owner____ If Torres lacked an interest in the cash, its forfeiture did not impose any penalty on him____ A non-‘penalty’ imposed in a civil proceeding does not amount to ‘jeopardy of life or limb’ within the meaning of the fifth amendment.” Id., at 1465-66. As the Findings of Fact, above, show, the case at bar is quite different from Torres in this respect. Ailemen does claim in these criminal proceedings that he was the owner of the cash that the government seized and forfeited. More significantly, the court has found, on very persuasive evidence, that Ailemen was in fact the owner of that money. Thus Ailemen, unlike Torres, clearly had an interest in the property—and its forfeiture to the government, “as a result of a drug-related offense,” clearly imposed punishment on him. It follows that to the extent that the holding in Torres turned on the fact that the Court of Appeals “had no reason to believe that [the defendant] owned or had any interest in the money,” that case has no analytical value in the ease at bar. It is not clear, however, that the outcome in Torres turned on this question of fact. In the paragraph preceding the discussion of ownership, the Seventh Circuit panel appears to present a basis for disposing of the double jeopardy claim that does not depend on whether, as a matter of historical fact, defendant had an interest in the seized property. In this earlier paragraph the Torres court adopts a formalistic approach, reasoning that because the defendant did not become a party to the civil proceeding, jeopardy never attached there, and that since there was no former jeopardy, there could be no double jeopardy. Id., at 1465. On closer examination, however, the apparent logical tidiness of this analysis loses its persuasive power. The fact that this reasoning reflects an elevation of form over substance is exposed before the paragraph is completed—in the lines through which the court tries to bolster its argument. Immediately after announcing that “You can’t have double jeopardy without a former jeopardy,” citing Serf ass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975), the Torres panel proceeded to declare that [a]s a non-party, Torres was not at risk in the forfeiture proceeding, and ‘[wjithout risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy.’ Id. at 391-92, 95 S.Ct. at 1064. ‘Torres was no more “in jeopardy” in a forfeiture proceeding in which he was not a party than he would have been in a separate trial of [his co-defendant]____’ (emphasis added). Torres at 1465. By insisting that Torres was not at risk in the forfeiture proceeding, the Seventh Circuit panel focuses our attention on this question: at risk as- to what? At risk of losing property the defendant owned? Or at risk of being adjudged guilty of some wrongdoing? Is the Double Jeopardy clause concerned with only one of these kinds of risks? With due respect, it seems to the undersigned that the passage quoted from Serfass is taken out of broader doctrinal context— because the Supreme Court has made it clear that the risk against which the Double Jeopardy clause offers protection is not confined to the risk of being adjudged guilty twice of the same offense, but extends also to the risk of being punished twice for the same offense. While one of the abuses against which the Clause offers protection is multiple prosecutions for the same offense, the Clause also, independently, offers protection against a different abuse: multiple punishments (through separate proceedings) for the same offense. To insist, as the Torres court appears to insist, that there can be no former jeopardy unless there was a risk that in the first proceeding the defendant could be formally adjudged guilty is to ignore one of the core purposes of the clause, protection against multiple punishments. A court that attends to all of the purposes of the Double Jeopardy clause must consider whether, in the first proceeding, the government in fact imposed some “punishment” on the defendant. Given the holding in Arlt that the forfeiture statutes are vehicles through which the government can impose “punishment” within the meaning of the Double Jeopardy clause, resolution of the issue of whether jeopardy attached in the first proceeding should not turn solely on the formality of whether the defendant made himself a party to it, but also on whether, through that proceeding, the government in fact used the forfeiture laws to impose on the defendant a punishment. In the case at bar, I already have found, as a matter of fact, that Pius Ailemen owned both the $1,000 and the $4,900 that the government forfeited from him through the administrative process. By taking his money “because it was used or acquired as a result of a drug-related offense” the government has imposed a punishment on Pius Ailemen through a separate proceeding. As a matter of hard historical fact, the government already has punished him. It has taken his money under statutes that Arlt deems vehicles for punishment. It would ignore reality completely to insist as a matter of theory that he could not have been punished simply because he declined, out of fear for his Constitutional right not to incriminate himself, to formally appear in the forfeiture proceeding. I strongly suspect that the framers of the Double Jeopardy Clause were much more concerned about the realities of punishment than about the forms of proceedings. I therefore recommend that the District Court in the case at bar decline to follow Torres to the extent that it appears to hold that, as a matter of law, a defendant who did not make an appearance in a forfeiture proceeding cannot have a Double Jeopardy claim. THE WAIVER THEORY I turn to the waiver arguments, which are not pressed directly by the government, but are relied on in part by some of the district judges whose opinions the government terms “better reasoned” than those cited above. The three opinions cited by the government are: United States v. Nakamoto, 876 F.Supp. 235 (D.Hawaii 1995); United States v. Walsh, 873 F.Supp. 334 (D.Ariz. 1994); and United States v. Kemmish, 869 F.Supp. 803 (S.D.Cal.1994). In these opinions there is substantial interdependence between the waiver theory and the formalistic analysis of Torres, which each of these district courts endorses. This interdependence is well-illustrated by the following passage from United States v. Kemmish, swpra: The defendant, upon receiving notice of seizure and intent to forfeit, was faced with a choice. He could have filed a claim within the announced time frame and sought to contest the forfeiture. He chose not to file a claim. As a result, the $16,660 can be forfeited as unclaimed based solely upon the government’s belief that it was involved in crime. But there will have been no adjudication of culpability on the part of the defendant in the administrative proceeding and, therefore, no imposition of punishment. Any adjudication of personal culpability of the defendant will have been waived by his voluntary choice not to file a claim. It is well established that ‘[t]he Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice.’ [citing United States v. Scott, 437 U.S. 82, 99, 98 S.Ct. 2187, 2198, 57 L.Ed.2d 65] (1978). (Emphasis added). 869 F.Supp. 803, 805. I will not repeat here the reasons for which I reject as a non-sequitur the assertion that the forfeiture proceedings cannot result in the imposition of punishment when in those proceedings there is no adjudication of the guilt or innocence of the owner of the property. To the extent (which is considerable) that Kemmish, Walsh, and Nakamoto i’ely on the formalistic reasoning of Torres, I find these district court opinions unpersuasive. But I also question their persuasive force on another ground, a ground based more directly on their use of waiver theory. These opinions assume that the waivers in these cases are both (1) voluntary and (2) knowing. I question both assumptions. First, it is not at all clear that Pius Ailemen’s decision not to contest the civil forfeiture was in any meaningful sense “voluntary.” He has advised the court, through counsel, that even though the property in question was his, and even though he would challenge the assertion that it “was used or acquired as a result of a drug-related offense,” he decided not to file a claim and not to contest the forfeiture in order to preserve his Fifth Amendment right not to incriminate himself. In other words, he felt constrained to choose between his right to claim his property and his right not to incriminate himself. A decision made under such constraint is not fairly considered “voluntary.” See, e.g., Lejkowitz v. Cunningham, 431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977); Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973); and Garrity v. State of New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). To be troubled by the dilemma the law created for Pius Ailemen, we need not assume, indeed we may not assume, that he knew that he was guilty of the underlying offenses (or some of them) and that if he offered truthful evidence during the forfeiture proceedings he would have to admit that guilt. Rather, Ailemen (with the assistance of counsel) might simply have understood that there was a substantial risk that the government would try to use any evidence he offered in the forfeiture proceedings against him in the criminal prosecution. Knowing that the consequences of losing in the criminal prosecution were so severe—and so much more severe than the consequences of losing his property—and understanding that he could not know in advance how the government might turn his words or documents against him later, he likely concluded (on advice of counsel) that he simply could not take the risk that his evidentiary offerings in the forfeiture proceeding would increase the likelihood that he would suffer the severe harm of criminal conviction on drug offenses with huge potential penalties. How such a decision can be deemed “voluntary” escapes me. Moreover, I am troubled by the fact that in electing to proceed with the civil forfeiture action before the criminal trial, the government in effect has forced the defendant to give up his property without a hearing. It probably has occurred to some government lawyers that defendants in positions like Mr. Ailemen’s will feel the fears he has felt (of having the evidence he presents in the forfeiture proceeding used against him in the much more threatening criminal prosecution) and will respond to those fears by ‘deciding’ not to contest the forfeitures. The foreseeability of this scenario might tempt some government lawyers to press forward quickly with the forfeiture actions, before the criminal trial, in order to increase the likelihood that the owners of the property will not file claims—and thereby increase the likelihood that the forfeiture action will be successful. But even if no government lawyer has ever succumbed to the temptation to push the civil forfeiture action forward first in order to take advantage of the property owner’s vulnerability in the criminal proceedings, the fact remains that the pendency of the criminal action can give the government a huge advantage in the civil proceeding— effectively forcing the property owner to forsake his claim. Thus, if the government faces no risk at all by proceeding with the civil action first, it acquires, willfully or not, an advantage over the property owner (who may be innocent) that seems fundamentally unfair. That kind of unfairness implicates the Due Process Clause of the Fifth Amendment. Moreover, there is a clear procedural alternative through which the government can fairly pursue both its conviction and its forfeiture ends without placing the defendant at this considerable disadvantage. The government, as the Court of Appeals has suggested, can bring a criminal prosecution and a forfeiture action based on the same offense in the same proceeding. Arlt, supra, at 1222. And in such consolidated proceedings, the criminal ease can be tried first—putting the civil forfeiture on hold until the jury decides the issues in the criminal case. By sequencing the proceedings this way, the court eliminates the possibility that the defendant will be required to risk self-incrimination during the criminal trial in his efforts to protect his property rights. After the jury decides the issues in the criminal case, the government can decide whether to proceed, immediately and before the same jury, to the forfeiture action. If there has been a conviction, the outcome of the forfeiture action may be compelled as a matter of law in some cases. But even if there has been an acquittal the government might proceed with the forfeiture action—relying on the less demanding standard of proof that would apply in the civil context. The point is that this procedural option affords the government full opportunity to secure all of its legitimate objectives without unfairly (even if unintentionally) subjecting the defendant to severe disadvantages with respect to the forfeiture proceedings. Another problem with the waiver theory is that it assumes, without clear support at least in this record, that a defendant who decides not to file a claim in the forfeiture proceedings understands what rights he is giving up by making that decision. We can safely assume, absent some unusual circumstance, that defendants who decide not to make claims in the forfeiture proceedings understand that they may be giving up their ownership rights in the seized property. We cannot assume, however, that a defendant like Pius Ailemen also understood that in deciding not to claim his property he was giving up his right to invoke the Double Jeopardy Clause. At the time Ailemen elected not to file a claim for the currency in issue here, between February and April of 1994, the Court of Appeals for the Ninth Circuit had not issued its opinion in Arlt. Before that opinion was published, it was not at all clear that civil forfeiture proceedings of the kind involved in this ease could trigger Double Jeopardy Clause rights. And since I am not prepared to find that Ailemen’s lawyer should have foreseen the holding in Arlt, it seems quite unlikely that, at the time he decided not to file claims to his property, Pius Ailemen understood that by so doing he was forever giving up any right to contend that the criminal prosecution should be barred under the Double Jeopardy Clause. If he could not foresee that by his decision he was giving up his rights under the Double Jeopardy Clause, his decision hardly could have been “knowing.” And in this setting, he cannot “waive” his Double Jeopardy right unknowingly. Because I conclude that Pius Ailemen’s decision not to file a claim in the forfeiture proceeding was neither ‘voluntary’ nor ‘knowing’ as those terms are used in settings like these, I RECOMMEND that the District Court decline to find that Pius Ailemen waived his rights under the Double Jeopardy-Clause. WHO OWNED THE PROPERTY AND WHO WAS PUNISHED BY ITS FORFEITURE? The third argument advanced by the government in support of its contention that an uncontested forfeiture cannot trigger Double Jeopardy rights is that by deciding not to file a claim Ailemen has made it impossible to determine who owned the property—and therefore impossible to determine whether that proceeding resulted in him suffering any punishment. There might be something to this argument in some eases, or with respect to some items of property, but there is nothing to it in the case at bar. For reasons set forth at length above, there is ample evidence to determine, without a forfeiture hearing, that Pius Ailemen is the owner of both the $1,000 that was seized from his hotel room and the $4,900 that was seized from the pockets’ of his pants in his apartment. Since we can determine that the property was his, we also can determine that he was punished by its forfeiture. Finding all of the arguments in favor of the government’s position unpersuasive, I hereby RECOMMEND that the District Court hold that the administrative forfeitures of the $1,000 and the $4,900 imposed punishments on Pius Ailemen within the meaning of the Double Jeopardy Clause and that, on the facts of this case, his failure to file claims in those proceedings does not block his access to rights under that Clause. I further RECOMMEND that the District Court hold that the Double Jeopardy Clause bars the government from prosecuting Pius Ailemen for the “same offenses” that underlay the civil forfeitures of the $1,000 and the $4,900. I turn in the next section to the task of determining what constitutes the “same offenses” in this setting. THE SAME OFFENSES Defense counsel’s arguments to the contrary notwithstanding, it is clear that the “test” for determining whether the offenses involved in two separate proceedings are the “same” for purposes of Double Jeopardy Clause analysis is not whether they reflect or arise out of the same conduct (Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), but whether “each offense contains an element not contained in the other.” United States v. Dixon, — U.S. -, -, 113 S.Ct. 2849, 2856, 125 L.Ed.2d 556 (1993), relying on Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); and Arlt, supra, note 10 at 1220. Before turning to other matters, I point out that the suggestion by the defense that the forfeitures in 1989 were for the same offenses as Pius Ailemen is now charged is unpersuasive. The 1989 forfeitures were based on drug trafficking offenses that allegedly occurred some two years before the earliest dates of the criminal acts charged in the current indictment. But more significant is the fact that the government already proseeuted Ailemen, through a separate trial long since completed, for those offenses. It hardly seems arguable that the completion of one prosecution for alleged drug offenses affords the defendant a free pass to begin thereafter engaging in new illegal drug deals. Defense counsel has not suggested, wisely, that that earlier trial precludes the present prosecution—and if that trial does not trigger the Double Jeopardy Clause in the present case, it is difficult to understand how an antecedent civil forfeiture could. The forfeitures in the first half of 199k of Mr. Ailemen’s cash, however, clearly have serious Double Jeopardy implications for the current prosecution. Those forfeitures were based on the extensive investigations of drug trafficking that apparently began in earnest in 1992 and that have continued into the present, investigations that included considerable undercover work, help from confidential informants, and the four and one-half months of wiretaps that preceded the arrests of Ailemen and his co-defendants at the end of 1993. Given the timing of the seizures of the $1,000 and the $4,900, the circumstances in which those seizures occurred, and the justification offered by the government for the forfeiture of these funds (they were forfeited because the government alleged they had been “used or acquired as a result of a drug-related offense” ), it is clear that the bases for the forfeitures are intimately connected with the bases for the current prosecution. It is against this backdrop that we turn to the more specific issues of the “same offense” analysis. The Arlt opinion already has rejected the most sweeping arguments advanced by the government in support of its position that the forfeitures and the criminal prosecution cannot be for the same offenses. The government seems to believe that it is proper for this court to re-consider the wisdom of the fundamental underpinnings of the Court of Appeals’ decision in Arlt. That, of course, this court cannot do. This court is bound by the law that the Court of Appeals for the Ninth Circuit announces. In Arlt, the Court of Appeals squarely and unequivocally held that the Double Jeopardy Clause bars a civil forfeiture action that is based on the same offenses that were prosecuted in a separate criminal proceeding. The Court went on to announce that, by constitutional mandate, “a criminal prosecution and a forfeiture action based on the same offense must now be brought in the same proceeding”—and that if the government elected instead to “pursue the civil forfeiture action” separately, the government would “thus forego the opportunity to prosecute the claimants criminally”. Id., 33 F.3d 1210, 1222. These announcements of law by the Court of Appeals preclude this court from considering much of the argument advanced by the government in its opposition to defendants’ motions, e.g., the arguments based on statutory authorization to prosecute a defendant under two different sections of the criminal codes for the same conduct or for both a predicate act and a broader offense like a conspiracy or a continuing criminal enterprise. See Consolidated Response to Defendant Gladney’s and Defendant Ailemen’s Motion to Dismiss the Indictment (Double Jeopardy), filed March 10, 1995, at 6-9. I also feel constrained to point out that the government’s efforts to defeat a motion based on a constitutional mandate by arguing about what Congress intended to authorize, as a matter of statutory construction, is fundamentally misplaced. The government seems to have forgotten that in eases of conflict, the Constitution always trumps statutes (regardless of the Congressional intent the statutes reflect). Even the clearest Congressional authorizations of multiple or separate prosecutions cannot survive if they offend the Double Jeopardy Clause. I turn now to an examination of the real issues here: whether the punishment imposed on Pius Ailemen in the forfeiture proceedings was for the same offenses with which he is charged in this criminal prosecution. The fact that the forfeitures were effected by default complicates the process of answering this question. If there had been a contested hearing in the forfeiture proceedings, followed by an opinion from the court, we might well be able to identify with more confidence the specific “offenses” on which the government predicated the confiscation of Pius Ailemen’s property. The government has argued that this clouding of the question of which offenses supported the forfeiture is Ailemen’s fault. At oral argument, the government suggested that it is only because Ailemen freely chose not to contest the forfeiture that we are deprived of the knowledge that is necessary to resolve this issue. The government further suggests that Ailemen must suffer the consequences of his own decision—and that those consequences include effective loss of any protections from the Double Jeopardy Clause because Ailemen cannot show precisely which “offenses” supported the forfeitures. The principal difficulty with this argument is that it builds from an erroneous premise: as discussed at some length above, it is a complete figment of jurisprudential imagination to suggest that Pius Ailemen “voluntarily” decided not to contest the forfeitures in issue here. He was effectively coerced into that decision—so it would be quite unfair to visit upon him the loss of his Double Jeopardy rights as a consequence of that decision. How shall we determine what the offenses were for which punishment was imposed through the forfeiture proceedings? And if we cannot be sure what the answer to that question is, must it be the government’s criminal prosecution that suffers? We begin our effort to answer these questions by considering what the Notices of Seizure communicated to Pius Ademen (and the rest of the world) about this matter. The Notice of Seizure was identical in this respect for both the $1,000 and the $4,900. In each instance, the Notice offered only the following information: the property was seized “for forfeiture under Title 21, United States Code (U.S.C.), Section 881, because it was used [in] or acquired as a result of a drug-related offense. (See Title 21, Code of Federal Regulations (C.F.R.), Section 1316.91(d) (54 Federal Register 37610-37611) for the definition of the term ‘drug-related offense.’)” Exhibits 4 and 5 to Exhibits In Support of Defendant Pius Ailemen’s Motion to Dismiss, February 7, 1995. Each of the crimes with which Pius Ademen has been charged in the original and Superseding Indictments in this ease is a “proscribed offense which involves ... [a] substance the possession of which is prohibited by Title 21, U.S.C.” Quoting Title 21, C.F.R. sec. 1316.91(d). For example, the counts sounding in money laundering, aiding and abetting, interstate transportation in add of racketeering, conspiracy, and a continuing criminal enterprise all are predicated on alleged dlegal trafficking in heroin and/or cocaine. There is no non-drug related offense on which any of these charges turn. Nor do any of the documents supporting the prosecution (affidavits) contain evidence sufficient to establish probable cause for prosecutions not related to. drug trafficking. It follows that the Notices of Seizure provide no basis for concluding that the punishment effected by the forfeitures was not based on the same offenses for which Pius Ailemen is now charged. Our search for other bases for identifying the offenses for which Ailemen was punished through the forfeiture proceedings has lead us to the carefully crafted “Order From Chambers” of District Judge John W. Sedwick in United States v. Gerald Frank Plunk, A94-036 CR (JWS) (D. Alaska November 17, 1994), a case, like ours, that involved both an uncontested administrative forfeiture and two indictments. In that Order, Judge Sedwick decided that to determine which offenses underlay the forfeiture proceedings the court should focus on the date of the seizure (rather than the date of the Notice of Seizure or the date of the Declaration of Forfeiture—an issue to which I return below) and should consider all the information and evidence then available to the government in order to identify the offenses as to which the government believed it had probable cause to prosecute the defendant. Judge Sedwick first compared the indictment that was on file at the time of the seizures to the indictment that was filed after the forfeitures were completed. He dismissed each offense that he found in both indictments. But he did not limit his analysis to these formal pleadings. If the superseding indictment in his case contained a charge that was not in the original indictment, he pushed on to examine the affidavits that preceded the first indictment—in order to identify each offense for which the government believed it had probable cause at the time of the s