United States v. Gary Allen German ( 2006 )


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  •                                                           [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FILED
    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
    ________________________ ELEVENTH CIRCUIT
    DECEMBER 29, 2006
    No. 06-10345                 THOMAS K. KAHN
    Non-Argument Calendar                CLERK
    ________________________
    D. C. Docket No. 05-60159-CR-KAM
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    GARY ALLEN GERMAN,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    _________________________
    (December 29, 2006)
    Before BLACK, MARCUS and WILSON, Circuit Judges.
    PER CURIAM:
    Gary Allen German, with appointed counsel, appeals his conviction and
    sentence for drug trafficking, 21 U.S.C. § 841. He challenges the district court’s
    oral order forfeiting his interest in a Fort Lauderdale property on the grounds that
    the oral order conflicts with the written judgment. He also claims that his counsel
    had a conflict of interest and was thus ineffective. We find that the district court’s
    oral decision is controlling and that German’s interest in the property is therefore
    forfeited. Additionally, we find that German is barred from raising a claim based
    on counsel’s alleged conflict on direct appeal and we thus affirm.
    Background
    German was convicted of selling various amounts of cocaine both inside and
    outside his home in Fort Lauderdale, Florida (“the property”). The government
    initially sought to forfeit German’s interest in the property. However, during the
    proceeding, the Federal Public Defender (“FPD”) representing German also filed a
    motion related to protecting the interests of German’s wife, Kathy German, in the
    property. Kathy German contended that she owned the property and that German
    had no interest in it.
    At the change of plea hearing, German expressly agreed, among other
    things, to forfeit his interest in the property. Thereafter, the district court entered a
    preliminary order of forfeiture. Nevertheless, apparently accepting Kathy
    German’s contentions, the government informed the district court that it would not
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    seek a final order of forfeiture. On this basis, the district court denied Kathy
    German’s motion as moot.
    At the sentencing hearing, however, the district court orally ordered
    German’s interest in the property forfeited. Kathy German, still represented by the
    FPD, immediately filed a motion to stay or amend the judgment. The district court
    did not act on this motion, but the written judgment, entered shortly thereafter, did
    not mention the forfeiture. German, with newly appointed counsel, challenges
    district court order on the grounds that it conflicts with the court’s written
    judgment and the government’s decision not to pursue forfeiture. He further
    alleges that the FPD’s interests were conflicted when he represented both German
    and his wife during the proceeding. German asks for an evidentiary hearing to
    establish prejudice.
    Standard of Review
    German raised no objections regarding the forfeiture before the district
    court, and we thus review his claims for plain error. United States v. Aguillard,
    
    217 F.3d 1319
    , 1320 (11th Cir. 2000). Plain error exists only where (1) there is an
    error; (2) the error is plain or obvious; and (3) the error affects the defendant’s
    substantial rights. United States v. Olano, 
    507 U.S. 725
    , 732-34, 
    113 S. Ct. 1770
    ,
    1777-78, 
    123 L. Ed. 2d 508
    (1993). When these conditions are met, we may then
    3
    exercise our discretion and correct the error if it seriously affects the fairness,
    integrity, or public reputation of judicial proceedings. 
    Id. at 736,
    113 S. Ct. at
    1779. German bears the burden of persuasion as to this claim of plain error.
    United States v. Chubbuck, 
    252 F.3d 1300
    , 1302 (11th Cir. 2001).
    Discussion
    As a general rule, “[w]hen a sentence pronounced orally and unambiguously
    conflicts with the written order of judgment, the oral pronouncement governs.”
    United States v. Bates, 
    213 F.3d 1336
    , 1340 (11th Cir. 2000). However, “[i]f the
    oral sentence is ambiguous, then, in an attempt to discern the intent of the district
    court at the time it imposed sentence, the reviewing court may consider extrinsic
    evidence, including the commitment order.” United States v. Khoury, 
    901 F.2d 975
    , 977 (11th Cir. 1990). Here, German is essentially trying to avoid the affect of
    the district court’s oral pronouncement. However, he does not expressly argue,
    and we do not find that the oral pronouncement was ambiguous. Accordingly, we
    will not consider the written judgment. As a mere conflict between oral and written
    sentences does not give rise to plain error, we find that the oral decision controls
    and we affirm.
    German also challenges the forfeiture-sentence on the grounds that it is
    contrary to the government’s decision not to pursue a final order of forfeiture.
    4
    Even if we were to accept German’s contention that the district court’s reference to
    forfeiture in the oral decision is erroneous, we would not find that plain error
    existed since German’s rights have not been impaired. German never asserted
    before the district court that he had an interest in the property. Additionally, the
    government never sought a final order addressing third party interests, and thus
    Kathy German’s interest in the property remains unaffected by the oral decision.
    Accordingly, we find no reversible error in the decision below.
    German next argues that the FPD’s interests were conflicted when he
    represented both Kathy German and himself during his criminal proceeding. As a
    general rule, a defendant may not raise ineffective assistance of counsel claims for
    the first time on direct appeal, since there has not been an opportunity to develop
    and include in the record evidence bearing on the merits of the allegations. United
    States v. Griffin, 
    699 F.2d 1102
    , 1107-09 (11th Cir. 1983). Such claims have been
    relegated to collateral attacks, and should be brought to the district court through
    28 U.S.C. § 2255 motions. The Supreme Court has held that the correct procedure
    for appellate courts confronting these cases is to affirm the conviction and sentence
    without prejudice to a defendant’s ability to raise the issue of a possible conflict of
    interest on collateral review. Massaro v. United States, 
    538 U.S. 500
    , 504-06, 
    123 S. Ct. 1690
    , 1694, 
    155 L. Ed. 2d 714
    (2003). Accordingly, we affirm the decision
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    below.
    AFFIRMED
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Document Info

Docket Number: 06-10345

Judges: Black, Marcus, Per Curiam, Wilson

Filed Date: 12/29/2006

Precedential Status: Non-Precedential

Modified Date: 11/5/2024