Lee Scrivener,

No. 97-35584
D.C. No.  CV-97-00342-OMP

Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, District Judge, Presiding

Argued and Submitted
November 2, 1998--Portland, Oregon

Filed February 5, 1999

Before: David R. Thompson, Edward Leavy, and
Stephen S. Trott, Circuit Judges.

Opinion by Judge Trott


John W. Maroney, Tucson, Arizona, for the defendant-

Stephen F. Peifer, Assistant United States Attorney, Portland,
Oregon, for the plaintiff-appellee.


TROTT, Circuit Judge:

I. Overview

Richard Lee Scrivner ("Scrivner"), a prisoner proceeding
pro se, was convicted on one count of violating 18 U.S.C.
S 922(g), being a convicted felon in possession of a machine
gun, and one count of violating 18 U.S.C. S 5861(d), possess-
ing an unregistered firearm. After unsuccessfully challenging
his conviction on direct appeal, Scrivner filed a petition under
28 U.S.C. S 2255 to vacate, set aside or correct his sentence.
In his petition, Scrivner claims that his Fifth Amendment right
against self-incrimination was violated by the admission at his
trial of his affidavit from a prior civil forfeiture proceeding.
The district court denied his petition and Scrivner appealed.
We have jurisdiction pursuant to 28 U.S.C. S 2253, and,
because we hold that admission of the affidavit from the civil
forfeiture proceeding violated Scrivner's Fifth Amendment
right against self-incrimination, we reverse and remand.

II. Background

On May 5, 1993, Scrivner was arrested for possession of
methamphetamines. While in jail, a search warrant was exe-
cuted at his home. During the search, the police seized stereo
equipment, a purse, jewelry, camera equipment, a television,
a VCR, and miscellaneous notes and financial records. The
police also found and seized an unregistered silencer and an
unregistered semiautomatic firearm which had fully automatic
capabilities (the "machine gun").

While Scrivner was still in jail, Oregon initiated civil for-
feiture proceedings for all of the items seized, including the
machine gun and silencer. A police officer went to the jail
where Scrivner was housed and gave him the Property/
Evidence Receipts. The officer told Scrivner that he had
twenty days to assert ownership in the seized property or it
would be declared forfeited. In order to prevent forfeiture,
Scrivner filed an affidavit asserting his Fifth Amendment
right against self-incrimination and claiming "possessory and/
or legal interest in some or all of the items" seized.

Almost three months later, Scrivner was indicted and tried
in federal court on one count of being a convicted felon in
possession of a machine gun and one count of possession of
an unregistered firearm. At trial, Scrivner's defense was that
he was not living at that home when the search warrant was
executed and did not own the machine gun and silencer. Over
Scrivner's objection, the trial court admitted Scrivner's affida-
vit from the civil forfeiture claiming ownership in some or all
of the seized items.

After the jury found Scrivner guilty, he appealed to this
court claiming that admission of the affidavit into evidence
violated his Fifth Amendment right against self-incrimination.
In an unpublished decision, we rejected Scrivner's claim,
holding that "Scrivner could have invoked his Fifth Amend-
ment privilege with respect to the gun and silencer in the civil
proceeding" and failure to do so waived that right ("Scrivner
I"). United States v. Scrivner, No. 94-30265, 1995 WL
398932, at *4 (9th Cir. July 6, 1995).

At the same time Scrivner I was being heard, another panel
of this court in an unrelated case stated that:

       [f]inally, we reject the argument that by requiring a
       defendant to claim his property we force him to sac-
       rifice his right against self-incrimination in order to
       preserve his right against double jeopardy. At some
       point, a defendant who seeks to prove that a prior
       forfeiture "punished" him would have to claim that
       he owned the forfeited property. The effect of our
       rule is only to require that such a claim be asserted
       in the civil forfeiture proceeding itself and not sim-
       motion to dismiss the criminal indictment.
       Moreover, a defendant does not risk incriminating
       himself by claiming that he owns property that is
       subject to forfeiture. A defendant's claim of owner-
       ship at a pre-trial suppression hearing of property
       that he contends was unlawfully seized may not be
       used to prove the defendant's guilt. For the same
       reason, a defendant's claim of ownership of property
       that was subject to forfeiture may not be used for
       that purpose.

United States v. Cretacci, 62 F.3d 307, 311 (9th Cir. 1995)
(citation omitted) (emphasis added). Scrivner sent a letter to
the panel hearing his direct appeal informing them of the
Cretacci decision. The Scrivner I panel treated this letter as
a motion for reconsideration and summarily denied it, despite
the apparent contradiction of the Cretacci decision.

Based upon the above quoted language in Cretacci,
Scrivner filed a petition for relief under 28 U.S.C.S 2255 with
the district court ("Scrivner II"). That petition was denied, and
this appeal followed.

III. Discussion

A. Standard of Review

Whether there has been a violation of a defendant's Fifth
Amendment right is reviewed de novo. United States v. Ross,
123 F.3d 1181, 1187 (9th Cir. 1997) (comment on defendant's
silence). The district court's decision to grant or deny a fed-
eral prisoner's petition for habeas corpus is reviewed de novo.
United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997). To
succeed on a S 2255 petition, a petitioner must show that the
conviction was rendered without jurisdiction, that the sen-
tence imposed was not authorized by law, or that there has
been a denial or infringement of constitutional rights. 28
U.S.C. S 2255.

B. Procedural Issues

Before reaching the merits of Scrivner's Fifth Amendment
claim, we must first address a number of procedural issues.

1. Law of the Case Doctrine

The United States argues that Scrivner's petition should
be dismissed under the law of the case doctrine. The law of
the case doctrine provides that " `one panel of an appellate
court will not as a general rule reconsider questions which
another panel has decided on a prior appeal in the same
case.' " Merritt v. Mackey, 932 F.2d 1317, 1320 (9th Cir.
1991) (quoting Kimball v. Callahan, 590 F.2d 768, 771 (9th
Cir. 1979)); see also United States v. Alexander, 106 F.3d
874, 876 (9th Cir. 1997). But a court may have discretion to
depart from the law of the case if:

       1) the first decision was clearly erroneous; 2) an
       intervening change in the law has occurred; 3) the
       evidence on remand is substantially different; 4)
       other changed circumstances exist; or 5) a manifest
       injustice would otherwise result.

Alexander, 106 F.3d at 876. In the absence of one of these cir-
cumstances, failure to apply the law of the case is an abuse
of discretion. Id. (citation omitted); see also Jefferies v. Wood,
114 F.3d 1484, 1489 (9th Cir. 1997) (en banc) (holding that
discretion to not follow the law of the case doctrine is lim-

The United States argues that this panel should reject
Scrivner's petition because the issue of whether the district
court erred in admitting the claim of ownership was decided
on direct appeal and according to the law of the case doctrine,
that decision is dispositive. We disagree. The law of the case
doctrine is inapplicable in this case. Law of the case precludes
relitigation of issues which another panel has decided on a
prior appeal in the same case. A habeas petition is a separate
civil action, not the same case, and therefore, the law of the
case doctrine does not apply.1 Decisions of courts on direct
appeal are not law of the case upon courts reviewing the mat-
ter for habeas.

Our conclusion is supported by the Supreme Court decision
in Sanders v. United States, 373 U.S. 1 (1963). In Sanders,
the Supreme Court addressed the preclusive effects of prior
S 2255 petitions on separate subsequent S 2255 petitions. Id.
at 8-9. The Court held that res judicata does not bar a habeas
action. Id. at 8. The Court reasoned that "notions of finality
of litigation have no place where life or liberty is at stake and
infringement of constitutional rights is alleged. " Id. Because
liberty and constitutional rights are overwhelmingly important
issues for our justice system, res judicata is inherently inappli-
cable to habeas proceedings. Id.; see also McClesky v. Zant,
499 U.S. 467, 479 (1991) (holding that the decision from a
first habeas petition is not binding on subsequent habeas peti-

Likewise, in Walter v. United States, 969 F.2d 814, 816
(9th Cir. 1992), we refused to apply res judicata on procedur-
ally similar facts. In Walter, the defendant brought a S 2255
petition alleging his trial violated his right to a speedy trial.
Id. at 816. This claim had been previously rejected by a dif-
ferent panel of this court on direct appeal. Id. We refused to
apply res judicata from the direct appeal to theS 2255 petition
because "like habeas corpus and coram nobis,S 2255 is a
well-established exception to the principles of res judicata."
Id.; see also United States v. Donn, 661 F.2d 820, 823 (9th
Cir. 1981) ("The doctrine of res judicata is inapplicable to
successive S 2255 motions."); Polizzi v. United States, 550
F.2d 1133, 1135 (9th Cir. 1976) (noting that res judicata does
not prevent a prisoner from relitigating issues raised on direct
appeal in a S 2255 petition).

Because a S 2255 petition is a separate civil action, the
law of the case doctrine is inapplicable. In so holding, we are
not suggesting that the resolution of the issue on direct appeal
is not persuasive or helpful. We only conclude that issues
resolved on direct appeal are not binding law of the case on
subsequent panels who rehear the issue on habeas. For the
same reasons we refuse to apply res judicata to subsequent
habeas proceedings, we refuse to apply law of the case doc-
trine to subsequent habeas proceedings. Consequently, we are
not bound by the Scrivner I panel's resolution of Scrivner's
Fifth Amendment claim.

2. Abuse of the Writ

Although the decision in Scrivner I is not binding, we
have discretion to refuse to rehear issues previously addressed
on direct appeal on the basis that the prisoner is abusing the
writ. Walter v. United States, 969 F.2d 814, 816 (9th Cir.
1992); Polizzi v. United States, 550 F.2d 1133, 1135-36 (9th
Cir. 1976). Generally, the abuse of the writ doctrine "forbids
the reconsideration of claims that were or could have been
raised in a prior habeas petition." Calderon, _______ F.3d _______,
1998 WL 848032 *9. In this case, Scrivner's petition cannot
be considered an abuse of the writ, because it is the first
habeas petition he has filed. See id. 

C. Admission of Affidavit from Civil Forfeiture

1. Cretacci

Before addressing the merits of Scrivner's claim, we
must determine the effect of our decision in Cretacci. In
Cretacci, we stated that

       a defendant does not risk incriminating himself by
       claiming that he owns property that is subject to for-
       feiture. A defendant's claim of ownership at a pre-
       trail suppression hearing of property that he contends
       was unlawfully seized may not be used to prove the
       defendant's guilt. For the same reason, a defendant's
       claim of ownership of property that was subject to
       forfeiture may not be used for that purpose.

62 F.3d at 311. Scrivner cites to this language and argues that
it should control our decision in this case. Conversely, the
United States argues that the discussion of the admissibility of
a claim of ownership in Cretacci is dicta and therefore should
not affect this decision.2 We agree; the language in Cretacci
discussing the admissability of a claim of ownership is dicta
and therefore not binding.

The issue in Cretacci was "whether the administrative for-
feiture of unclaimed property constitutes `punishment.' " 62
F.3d at 309. Cretacci argued that civil forfeiture proceedings
were punishment and therefore subsequent criminal proceed-
ings were barred by double jeopardy. Id. In addressing this
issue, the Cretacci court found that the forfeiture proceedings
were not punishment because Cretacci could have prevented
the forfeiture proceeding by claiming an interest in the prop-
erty. Id. The panel further held that Cretacci's failure to claim
an interest in the property constituted an abandonment and
therefore Cretacci had lost all rights in the property and was
not punished by the forfeiture. Id. at 311.

On appeal, Cretacci argued that he could not have
asserted any rights in the property without forfeiting his Fifth
Amendment right against self-incrimination. Id. It was in
response to this argument that the panel stated that the Fifth
Amendment would protect statements made in a civil forfei-
ture proceeding. Id. However, that statement was dicta. The
Cretacci facts did not present a situation where a statement
made in a forfeiture proceeding was being used against a
defendant in a criminal proceeding. Indeed, the record is
devoid of anything suggesting that Cretacci did not file a
claim of ownership because he was afraid that he would
waive his Fifth Amendment rights. The facts do not even sug-
gest how the car that was forfeited would have been incrimi-
nating. Moreover, Judge Kleinfeld, in a concurring opinion,
wrote that he "would not reach the issue of whether . . . a
claim of ownership in a civil forfeiture proceeding can be
used against the claimant in a subsequent criminal
proceeding." Id. at 311 (Kleinfeld, J., concurring). Because
the discussion about the admissability of the claim of owner-
ship was in response to a hypothetical argument, it is dicta.
Consequently, although they could be considered, the state-
ments made in Cretacci are not binding.

2. Fifth Amendment

The Fifth Amendment protects against compelled self-
incrimination in criminal cases. U.S. Const. amend. V; Ohio
Adult Parole Authority v. Woodard, _______ U.S. _______, 118 S. Ct.
1244, 1252 (1998). The Supreme Court has held that the Fifth
Amendment not only protects against forcing persons to tes-
tify against themselves at trial but also protects them when the
answers may incriminate the person in future trials.
Minnesota v. Murphy, 465 U.S. 420, 426 (1984). Although
civil in nature, Fifth Amendment protections apply to forfei-
ture proceedings. United States v. United States Coin and
Currency, 401 U.S. 715, 718 (1971); United States v.
$84,740.00 Currency, 981 F.2d 1110, 1114 (9th Cir. 1992)
(recognizing that Fourth Amendment exclusionary rule and
Fifth Amendment protection against self-incrimination apply
in civil forfeitures); United States v. One 1985 Mercedes, 917
F.2d 415, 419 (9th Cir. 1990) (noting that "courts have devel-
oped limited constitutional criminal law protections for

In order to invoke Fifth Amendment protection, the
claimant must be confronted with the "substantial and real,
and not merely trifling or imaginary, hazards of
incrimination." United States v. Apfelbaum, 445 U.S. 115, 128
(1980). "The Fifth Amendment privilege is not ordinarily
self-executing and must be affirmatively claimed by a person
whenever self-incrimination is threatened." United States v.
Jenkins, 785 F.2d 1387, 1393 (9th Cir. 1986)."An individual
may lose the benefit of the privilege inadvertently, without a
knowing and intelligent waiver." Id. Consequently, a valid
Fifth Amendment claim must prove that the defendant was (1)
compelled to (2) make self-incriminating statements.

3. Compulsion

The Supreme Court uses the voluntariness test to deter-
mine whether a statement was compelled. Schneckloth v.
Bustamonte, 412 U.S. 218, 225 (1973). The voluntariness test
asks whether "the confession [is] the product of an essentially
free and unconstrained choice by its maker." Culombe v. Con-
necticut, 367 U.S. 568, 602 (1961). If the statement is essen-
tially freely given, then it may be used against the defendant.
Id. The Supreme Court looks at the totality of the circum-
stances to determine whether a confession was made" `freely,
voluntarily and without compulsion or inducement of any
sort.' " Haynes v. Washington, 373 U.S. 503, 513 (1963)
(quoting Wilson v. United States, 162 U.S. 613, 623 (1896)).
Where a state " `compels testimony by threatening to inflict
potent sanctions unless the constitutional privilege is surren-
dered that testimony is obtained in violation of the Fifth
Amendment.' " United States v. Anderson, 79 F.3d 1522,
1526 (9th Cir. 1996) (quoting Lefkowitz v. Cunningham, 431
U.S. 801, 805 (1977)). The key test is "whether the accused
was deprived of his `free choice to admit, to deny, or to refuse
to answer.' " Garrity v. New Jersey, 385 U.S. 493, 496 (1967)
(quoting Lisenba v. People of State of California, 314 U.S.
219, 241 (1941)). Coercion is not limited to imprisonment or
fine, but includes the "imposition of any sanction which
makes assertion of the Fifth Amendment privilege`costly.' "
Campbell v. Gerrans, 592 F.2d 1054, 1057-58 (9th Cir. 1979)
("Imposing the harshest of the Rule 37 sanctions on a proper
exercise of the Fifth Amendment rights is not in accord with
Supreme Court decisions.").

Scrivner argues that the civil forfeiture proceeding and
the potential loss of his property compelled him to assert own-
ership in the confiscated goods. Scrivner correctly asserts that
property is an important right and the threat of losing property
constitutes compulsion. The Supreme Court has recognized
that the government may not threaten defendants with the loss
of property in order to obtain a confession. In Boyd v. United
States, 116 U.S. 616, 618 (1886), Boyd was the defendant in
a civil forfeiture action. Pursuant to a statute, Boyd was
ordered to produce incriminating documents or have his prop-
erty forfeited. Id. Boyd claimed that the statute unconstitu-
tionally compelled him to incriminate himself. Id. The
Supreme Court agreed and held that

       any compulsory discovery by extorting the party's
       oath, or compelling the production of his private
       books and papers, to convict him of crime, or to for-
       feit his property, is contrary to the principles of a
       free government. It is abhorrent to the instincts of an
       Englishman; it is abhorrent to the instincts of an
       American. It may suit the purposes of despotic
       power, but it cannot abide the pure atmosphere of
       political liberty and personal freedom.

Id. at 631-32. Moreover, the Supreme Court held that the
threat of forfeiting goods is a form of compulsion and violates
the Fifth Amendment. Id. at 634-35.

The decision in Boyd was reaffirmed in Garrity v. New Jer-
sey, 385 U.S. 493, 496-97 (1967). In Garrity, New Jersey
police officers were investigated for allegedly "fixing" traffic
tickets. Id. at 494. Before being questioned, each officer was
told that anything he said could be used against him and that
he had the right to refuse to answer any question, but "if he
refused to answer he would be subject to removal from
office." Id. Answers from the questions were subsequently
used to convict a number of police officers. Id. at 495. The
Supreme Court held that

       [t]he choice given petitioners was either to forfeit
       their jobs or to incriminate themselves. The option to
       lose their means of livelihood or to pay the penalty
       of self-incrimination is the antithesis of free choice
       to speak out or to remain silent. That practice, like
       interrogation practices we reviewed in Miranda v.
       State of Arizona, 384 U.S. 436, 464-65, 86 S.Ct.
       1602, 1623, 16 L.Ed.2d 694, is likely to exert such
       pressure upon an individual as to disable him from
       making a free and rational choice.

Id. at 497; see also Lefkowitz v. Cunningham, 431 U.S. 801,
805-06 (1977) (holding that threatening to remove a political
party officer from office for refusing to answer questions
before a grand jury constitutes compulsion and violates the
Fifth Amendment); Spevack v. Klein, 385 U.S. 511, 516
(1967) ("The threat of disbarment and the loss of professional
standing, professional reputation, and of livelihood are power-
ful forms of compulsion to make a lawyer relinquish the
[Fifth Amendment] privilege."); Slochower v. Board of
Higher Educ. of City of New York, 350 U.S. 551, 557-58
(1956) (holding that a statute which provides for the termina-
tion of any city official who claims the right against self-
incrimination violates the Fifth Amendment).

We note that at least one other circuit court has held that
the type of pressure placed on Scrivner to assert ownership
constitutes compulsion. In United States v. U.S. Currency,
626 F.2d 11, 15 (6th Cir. 1980), the Sixth Circuit held that
defendants "should not be compelled to choose between the
exercise of their Fifth Amendment privilege and the substan-
tial sums of money which are the subject of this forfeiture
proceeding." Rather than force defendants to choose between
the two rights, the Sixth Circuit suggested that the govern-
ment stay the proceedings or grant the claimant immunity. Id.
at 16-17; see also United States v. All Funds and Other Prop-
erty Contained in Accounts of the United States Nat'l Bank of
Or., Citizens Branch, Nos. VOMINT342580, 727 F. Supp.
1372, 1373 (D. Or. 1990) ("A claimant should not be forced
to waive his right against self-incrimination in a criminal
prosecution in order to satisfy his burden of proof in a civil
forfeiture case."). Likewise, forcing Scrivner to choose
between his property and his Fifth Amendment right is uncon-

In light of the Supreme Court decisions in Boyd and
Garrity, we agree with the Sixth Circuit and hold that forcing
Scrivner to choose between the loss of his property and his
Fifth Amendment right to remain silent constituted compul-

The government argues that because the machine gun and
the silencer were contraband to which Scrivner could assert
no rights, he was not coerced into claiming the property. This
argument might have merit if the police had only confiscated
the machine gun and the silencer. However, that is not what
happened. In addition to seizing the machine gun and silencer,
the police seized Scrivner's stereo equipment, television,
VCR, jewelry, and camera equipment. The police believed the
items were subject to forfeiture as fruits of Scrivner's alleged
drug dealing. All of the seized items were included on
Property/Evidence Receipts and given to Scrivner while he
was in jail. The police told Scrivner that he had twenty days
to claim ownership or the property would be forfeited. In
order to have standing to argue the property was not the fruit
of drug dealing, Scrivner was required to claim ownership in
the property. Scrivner's affidavit does not specifically claim
an interest in the machine gun and silencer, but claims an
interest in "some or all" of the items seized.

The government would have Scrivner claim an interest in
the television and VCR but not the machine gun and silencer.
Such a rule is judicially unworkable. Any item seized in a
search warrant has the potential to be evidence of a crime. A
car subject to forfeiture may look like a car that was used in
a crime. A television or camera may have been stolen. The
government would require a person whose property is subject
to forfeiture to imagine every possible way the item could be
incriminating and then decide not to claim an interest in any-
thing that could be incriminating. We do not believe the Fifth
Amendment requires such a result. Additionally, the Fifth
Amendment was intended to prevent persons from being
forced to perjure themselves. See Murphy v. Waterfront
Comm'n of New York Harbour, 378 U.S. 52, 55 (1964) (not-
ing that the Fifth Amendment privilege against self-
incrimination reflects our "unwillingness to subject those sus-
pected of crime to the cruel trilemma of self-accusation, per-
jury or contempt"). The government would require Scrivner
to perjure himself by saying all legal items are mine, but any
illegal items are not mine. Rather than requiring Scrivner to
lie, we believe the government should either wait until after
the criminal trial to begin forfeiture proceedings or grant
Scrivner immunity for statements made in obtaining standing
to challenge the forfeiture of his property.

The United States relies on this court's decision in Scrivner
I to argue that Scrivner was not compelled to assert ownership
in the confiscated property. In Scrivner I, we held that Scriv-
ner waived his Fifth Amendment right against self-
incrimination, and that the statement was not compelled
because "Scrivner could have invoked his Fifth Amendment
privilege with respect to the gun and silencer in the civil
proceeding." 1995 WL 398932 at *4-5. For support of that
conclusion, the Scrivner I court cited United States v. Kordel,
397 U.S. 1 (1970). In Kordel, a corporation and two of its
officers were charged with violations of the Federal Food,
Drug and Cosmetic Act. Id. at 6. The Food and Drug Admin-
istration began civil seizure proceedings to seize two of the
company's products. Id. at 3. In conjunction with the seizure
proceedings, the FDA submitted extensive interrogatories. Id.
at 3-4. Before the company and its officers submitted answers
to those interrogatories, they were given notice of potential
criminal procedures. Id. at 3-6. Despite the real risk of crimi-
nal indictment, the officers answered the interrogatories and,
as the Supreme Court held, waived their Fifth Amendment

We believe Kordel is distinguishable. In Kordel, the offi-
cers knew of the pending criminal indictment. Despite that
knowledge, they answered the FDA's interrogatories. Unlike
the defendants in Kordel, Scrivner did not know of any crimi-
nal indictment. Indeed, at the time Scrivner submitted the
claim, he was not charged with any crime.

Additionally, the defendants in Kordel could have
assigned other officers from the company to answer the inter-
rogatories and would have thus been able to protect their Fifth
Amendment right. Conversely, Scrivner could not have pro-
tected his property by refusing to submit a claim. See Or. Rev.
Stat. SS 475A.055(3), 475A.075(2)(a) (1997); Baker v. United
States, 722 F.2d 517, 518-19 (9th Cir. 1983) (refusing to grant
standing on potential claimants in a forfeiture proceeding who
asserted their privilege against self-incrimination). Moreover,
Scrivner could not have asserted his Fifth Amendment right
and asked the court to stay the forfeiture proceedings. See Or.
Rev. Stat. SS 475A.055(3), 475A.075(2)(a) (1997) (requiring
all persons claiming an interest in the property to file a claim
within twenty-one days and noting that "[n]o extension for the
filing of any claim shall be granted"); see also Kordel, 397
U.S. at 12; Baker, 722 F.2d at 518; United States v. Lot 5, Fox
Grove, Alachua County, Fla., 23 F.3d 359, 364 (11th Cir.
1994). Had Scrivner refused to assert ownership, his property
would have been forfeited. Or. Rev. Stat. SS 475A.055(4),
475A.075(2)(a) (1997).

Additionally, Scrivner did not answer interrogatories, but
submitted an affidavit which asserted ownership to a number
of different items that had been seized in order to assert stand-
ing to challenge the forfeiture proceeding. Unlike in Kordel,
Scrivner was not already receiving a trial to determine
whether his items would be forfeited. Scrivner had not been
granted standing and absent the affidavit would have
defaulted his claim. In Kordel, the corporation was the defen-
dant and was receiving a judicial hearing before the forfeiture
of its property. Someone other than the corporate officers in
Kordel could have answered the interrogatories, but they
chose to answer them and by so doing waived their Fifth
Amendment rights. Scrivner did not have the same options.

Moreover, in Kordel, the Supreme Court held that "the
Government may not use evidence against a defendant in a
criminal case which has been coerced from him under penalty
of either giving the evidence or suffering a forfeiture of his
property." 397 U.S. at 13. That is exactly what happened in
this case. As explained above, Scrivner was faced with the
classic lose-lose choice: assert his Fifth Amendment right and
lose his property or claim the property and waive his Fifth
Amendment right. That is the type of decision between "the
rock and the whirlpool" that the Fifth Amendment was
intended to prevent. See Garrity, 385 U.S. at 496.

The United States argues that a forfeiture proceeding
is similar to a civil proceeding and statements made therein
should not be protected. The United States correctly asserts
that the Fifth Amendment does not apply in civil cases, and
the jury can make a negative inference when someone asserts
the Fifth Amendment right in a civil case. Baxter v. Palmi-
giano, 425 U.S. 308, 318-19 (1976). However, that argument
is inapplicable in this case. Unlike a typical civil proceeding,
the opposing party in a forfeiture proceeding is the govern-
ment. See Colorado v. Connelly, 479 U.S. 157, 170 (1986)
("the sole concern of the Fifth Amendment . . . is governmen-
tal coercion."). Additionally, the affidavit in Scrivner's case
was not a tactical decision at trial, but a requirement to get to
trial. As explained above, Scrivner had to assert his claim on
the property within twenty-one days in order to have standing
to challenge the forfeiture proceeding. At a subsequent forfei-
ture hearing, Scrivner could have others testify that the prop-
erty was his and thus protect his Fifth Amendment right. At
that point, if Scrivner took the stand and claimed the property,
it would be reasonable to argue that he waived his Fifth
Amendment right. But here, Scrivner had to claim the prop-
erty in order to assert standing just to get to a forfeiture hear-
ing. Unlike a party to a typical civil action, Scrivner had no
standing to cross-examine the opposing party's witnesses or
challenge their evidence until he asserted ownership.

Scrivner's case more closely resembles the Supreme
Court's ruling on statements made in Fourth Amendment sup-
pression hearings. In Simmons v. United States, 390 U.S. 377,
389 (1968), the Supreme Court addressed the admissability of
statements made by criminal defendants in exclusionary hear-
ings to suppress evidence obtained in violation of the Fourth
Amendment. The Supreme Court held that such statements
were protected by the Fifth Amendment. Id. at 394. The Court
reasoned that "it [is] intolerable that one constitutional right
should have to be surrendered in order to assert another." Id.
The Court focused on the requirement that the defendant
admit the confiscated items were his in order to challenge the
search and seizure. Id. at 390-91. Ultimately, the Supreme
Court found it unconstitutional to require the defendant to
admit the items were his, in order to gain standing to bring a
Fourth Amendment claim and then use that admission to pros-
ecute the defendant. Id. at 391-93.

Scrivner's statement is protected under the Simmons
analysis. Scrivner was given notice that items that potentially
belonged to him were subject to forfeiture. If Scrivner did not
assert ownership to the items within twenty-one days, his
property would have been considered defaulted to the state
and judicially declared forfeited. Or. Rev. Stat.
SS 475A.055(4), 475A.075(2)(a) (1997). The property could
have been sold, and Scrivner would have been left with no
recourse. See Baker, 722 F.2d at 518. In order to assert his
due process rights and challenge the forfeiture of his property,
he had to submit a claim of ownership. If that claim is admiss-
able, Scrivner would be forced to choose between his Four-
teenth Amendment due process right and his Fifth
Amendment right. As a result, people, like Scrivner, who
have property seized, will in some cases be deterred from
asserting their due process right and requesting a judicial
hearing before the goods are forfeited. Such a result creates
an "undeniable tension" between two fundamental rights and
is therefore a violation of the Fifth Amendment. See Simmons,
390 U.S. at 394.

D. Actual Prejudice

After reviewing the record, we conclude that the
admission of the claim of ownership was prejudicial. Scrivner
was charged with possession of a machine gun and unregis-
tered silencer. At trial, Scrivner's only defense was that he
was not living at the home where the items were seized and
the machine gun and silencer were not his. It was the prosecu-
tion's duty to prove beyond a reasonable doubt that the Scriv-
ner did own the machine gun and silencer. The only evidence
in the record that proves Scrivner owned the silencer and the
machine gun is that it was in his house, the testimony of a wit-
ness that Scrivner had previously had a gun similar to the
machine gun and Scrivner's claim of ownership. In the prose-
cution's rebuttal argument, the prosecution focused on the
claim of ownership as "another exhibit . . .[that is] pretty
important in terms of this whole proposed defense " that Scriv-
ner did not possess the machine gun and silencer. Indeed, the
prosecution specifically discussed the sworn affidavit as evi-
dence that Scrivner possessed the machine gun and silencer.
Moreover, the fact that there was other evidence that Scrivner
owned the machine gun and silencer does not mean that
admission of the claim of ownership was harmless. See
United States v. Harrison, 34 F.3d 886, 893 (9th Cir. 1994)
(holding that the improper admission of defendant's inculpa-
tory statements was not harmless error despite the existence
of incriminating circumstantial evidence).

The affidavit clearly prejudiced Scrivner's only
defense. In this context, the claim of ownership constituted a
confession of the crime. The Supreme Court has noted the
extraordinary prejudice associated with confessions. Arizona
v. Fulminante, 499 U.S. 279, 296 (1991). In Fulminante, the
Court held that a defendant's own words are " `probably the
most probative and damaging evidence that can be
admitted.' " Id. (quoting Bruton v. United States, 391 U.S.
123, 139-40 (1968) (White, J., dissenting)). When the only
defense is that the items were not his, admission of Scrivner's
claim of ownership is in essence admitting a confession.
Where, as here, that admission violates the Fifth Amendment,
we hold that it constitutes prejudice.

IV. Conclusion

For the reasons stated above, we hold that admission of the
claim of ownership in Scrivner's subsequent criminal trial,
violated his Fifth Amendment right against self-incrimination.
We therefore reverse the district court decision and remand
with instruction to grant Scrivner's S 2255 petition. Scrivner
should be given a new trial.



1 In habeas cases where we have applied law of the case, the procedural
facts have been different from those in this case. In a case where a habeas
petition is filed, appealed to this court, remanded and reappealed after
remand, issues decided by the panel hearing the first habeas appeal would
bind the subsequent appeal after remand under the law of the case doc-
trine. See Hegler v. Borg, 50 F.3d 1472, 1475 (9th Cir. 1995) (declining
to apply law of the case from a previous habeas appeal to a subsequent
appeal after remand in that same habeas petition); McKenzie v. McCor-
mick, 27 F.3d 1415, 1417 n.2 (9th Cir. 1994) (applying the holding of the
decision of the first appeal to be law of the case on the appeal after
remand); Cavanaugh v. Kincheloe, 877 F.2d 1443, 1446-47 (9th Cir.
1989) (applying the holding from the first habeas appeal to the appeal after
remand as binding law of the case). However, issues decided on direct
appeal are not binding as res judicata on a court hearing a habeas petition.
See Sanders v. United States, 373 U.S. 1, 8-9 (1963) (refusing to apply res
judicata to a habeas petition); Calderon v. The United States District Court
for the Central District of California, _______ F.3d _______, 1998 WL 848032 *7
(9th Cir. Dec. 8, 1998) (en banc) ( "The entire point of a habeas petition
that challenges a state conviction is to relitigate issues that were raised in
the state case and resolved against petitioner. Obviously, then, res judicata
in the traditional sense of that doctrine, cannot apply in habeas corpus;
otherwise nearly every habeas petition would be barred by the original
trial.") (citations omitted); Walter v. United States, 969 F.2d 814, 816 (9th
Cir. 1992) (refusing to treat resolution of issues on direct appeal as bind-
ing on a subsequent habeas petition). Likewise, law of the case, which has
the same, although more limited, effect as res judicata does not bind a
court hearing the case on habeas.

2 The United States also argues that Cretacci is not controlling on the
issue of admissability of civil forfeiture admissions because the holding in
Cretacci was superceded by the Supreme Court ruling in United States v.
Usery, 518 U.S. 267, 287-88 (1996) (holding that civil forfeiture proceed-
ings are separate civil actions and therefore do not constitute punishment
for double jeopardy purposes). The Supreme Court holding in Usery did
not address the admissability of incriminating statements, made in a civil
forfeiture proceeding, in a subsequent criminal trial. However, we need
not address the effect of Usery on Cretacci because we hold that the
Cretacci analysis on the admissability of incriminating statements is dicta.