United States v. Kythnos

331 F. Supp. 311, 1971 A.M.C. 484

Opinion

ORDER DENYING DEFENDANT’S MOTION TO DISMISS

CRARY, District Judge.

This cause having come on regularly for hearing October 26, 1970 before the Court, the Honorable E. Avery Crary, United States District Judge Presiding, on Defendant’s Motion To Dismiss Plaintiff’s Complaint on the ground of double jeopardy in violation of the Fifth Amendment to the United States Constitution, and it appearing from the pleadings and Exhibits A and B to the affidavit filed by defendant in support of Motion that the alleged state court action is a criminal action for violation of California law, to wit: Section 5650 Fish and Game Code of the State of California and that the instant case is an action in rem for civil penalty under 33 U.S.Code § 407 et seq., and in particular Section 412 thereof, and it further appearing from said exhibits to defendant’s affidavit and the pleadings on file herein that the state court action and the instant federal case do not involve the same parties, and the Court having considered all of the papers and pleadings on file herein, argument of counsel, and being fully advised in the premises, and being of the opinion that plaintiff’s action in rem for civil penalty herein is not barred by the prior state court criminal action although based on the same factual circumstances and does not involve a question of double jeopardy under the Fifth Amendment to the Constitution of the United States or otherwise; now, therefore, it is ordered that Defendant’s Motion To Dismiss be, and the same is hereby denied.