United States v. Ehi ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-7140
ISAAC EHI,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CR-90-252-MJG, CA-92-2916-MJG)
Submitted: November 25, 1997
Decided: December 19, 1997
Before HAMILTON, LUTTIG, and WILLIAMS, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Isaac Ehi, Appellant Pro Se. Robert Reeves Harding, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Isaac Ehi appeals the district court's orders denying his motion
under 28 U.S.C. § 2255 (1994) (current version at 28 U.S.C.A. § 2255(West 1986 & Supp. 1997)), and denying his motion for reconsidera-
tion. Finding no reversible error, we affirm.
Ehi was convicted, following a jury trial, of conspiracy to import
heroin, in violation of 21 U.S.C. § 963 (1994), and sentenced to serve
136 months imprisonment. His conviction and sentence were upheld
on appeal.1 The denial of Ehi's first § 2255 motion was also affirmed
on appeal.2
Ehi now claims that his criminal prosecution and conviction vio-
lated the Double Jeopardy Clause because they both followed a civil
forfeiture proceeding.3 This claim is without merit. Civil forfeitures
conducted under 21 U.S.C. § 881(a)(6) are intended as civil penalties
and do not constitute punishment for purposes of the Double Jeopardy
Clause.4 Therefore, regardless of the chronology of the civil and crim-
inal proceedings, we find that Ehi's criminal prosecution and convic-
tion did not violate the Double Jeopardy Clause.
Next, Ehi claims that the Government unlawfully agreed to provide
one of its witnesses, John Esemuede, with permanent legal residence
in the United States in exchange for his testimony against Ehi. During
his criminal trial, Ehi had full knowledge of Esemuede's plea agree-
ment and actually cross-examined him on the promises contained in
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1 See United States v. Ehi, No. 91-5791 (4th Cir. June 9, 1992) (unpub-
lished).
2 See United States v. Ehi, No. 93-6762 (4th Cir. Mar. 16, 1994)
(unpublished).
3 See 21 U.S.C. § 881(a)(6) (1994) (forfeiture of proceeds from illegal
drug activity).
4 See United States v. Ursery, ___ U.S. ___, 64 U.S.L.W. 4565, 4572
(U.S. June 24, 1996) (Nos. 95-345, 95-346); United States v. McHan,
101 F.3d 1027, 1039 (4th Cir. 1996), cert. denied, ___ U.S. ___, 65
U.S.L.W. 3826 (U.S. June 16, 1997) (No. 96-8994).
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the agreement. Because Ehi could have raised this claim in his first
§ 2255 motion but did not, we dismiss it as abusive.
Finally, Ehi contends that the district court abused its discretion by
disposing of his § 2255 motion without first conducting an evidenti-
ary hearing. Ehi filed this second § 2255 motion after receiving an
affidavit, purportedly by one of his co-conspirators, which stated that
Esemuede's testimony regarding Ehi's participation in the conspiracy
was not truthful. Ehi, however, did not sufficiently allege that the
Government knowingly presented perjured testimony; therefore, he
has failed to prove a denial of due process.5 Accordingly, we find the
district court did not abuse its discretion by disposing of Ehi's § 2255
motion without an evidentiary hearing.6
For the foregoing reasons, we affirm the district court's orders
denying relief on Ehi's § 2255 motion and denying his motion for
reconsideration. Further, we deny Ehi's request for general relief. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
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5 See United States v. Griley, 814 F.2d 967, 970-71 (4th Cir. 1987)
(denial of due process for Government to knowingly use perjured testi-
mony against accused to obtain his conviction).
6 See Raines v. United States, 423 F.2d 526, 529-30 (4th Cir. 1970)
(plainly apparent movant not entitled to relief; therefore, dismissal with-
out hearing is appropriate).
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