United States v. Yeager ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5309
JEFFREY YEAGER,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5310
MARY CASTO,
Defendant-Appellant.
Appeals from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, District Judge.
(CR-94-10107-K)
Submitted: February 28, 1997
Decided: August 12, 1997
Before HALL, MURNAGHAN, and WILKINS, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
James M. Pool, LAW OFFICES OF JAMES M. POOL, Clarksburg,
West Virginia, for Appellants. William D. Wilmoth, United States
Attorney, Paul T. Camilletti, Assistant United States Attorney,
Wheeling, West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellants appeal their convictions, pursuant to guilty pleas, for
conspiring to possess with the intent to distribute and distributing
marijuana and LSD, in violation of 21 U.S.C. § 846 (1994). At their
plea hearing, Appellants moved to dismiss the criminal proceedings.
Their motion was based on double jeopardy grounds because prior to
the criminal proceedings, the Drug Enforcement Administration
seized cash from them pursuant to W. Va. Code §§ 60A-7-701 to -707
(1992). Both the civil forfeiture and the criminal proceedings arose
from the same set of facts. The district court denied Appellants'
motion; the court accepted their pleas. Appellants were each sen-
tenced to sixty months imprisonment with five years of supervised
release. They timely appeal.
On appeal, Appellants claim that their federal convictions follow-
ing forfeiture of their property pursuant to civil forfeiture proceedings
violate the Double Jeopardy Clause, and their sentencing was based
upon an erroneous calculation of the base offense level for LSD.
Because we find no error, we affirm Appellants' convictions and sen-
tences.
Appellants first claim that they were subjected to double jeopardy
by their criminal proceedings because of the prior civil forfeiture pro-
ceedings brought pursuant to state law; the funds were forfeited to the
United States. Appellants admit that they did not appear in the prior
forfeiture proceedings. The Government claims that jeopardy never
attached to the forfeiture proceedings because neither Appellant con-
tested the proceedings. We agree.
2
In United States v. Torres, 28 F.3d 1463, 1464 (7th Cir. 1994), Tor-
res and his drug partner produced $60,000 to pay for drugs. The
Government subsequently commenced separate criminal and adminis-
trative proceedings, one seeking imprisonment and the other seeking
civil forfeiture of the $60,000. Id. Torres pled guilty to the drug
offenses. Id. On appeal to the Seventh Circuit, Torres claimed that by
virtue of the Double Jeopardy Clause, the forfeiture of the $60,000
precluded the sentence of imprisonment. Id. The Seventh Circuit
found that parallel administrative and criminal proceedings do not
necessarily violate the Double Jeopardy Clause. Id. at 1465. The Gov-
ernment gave Torres notice inviting him to make a claim in the forfei-
ture proceedings, but he failed to do so. Id. Thus, he did not become
a party to the forfeiture. Id. The Seventh Circuit held that because
there was no trial and the $60,000 was forfeited without opposition,
jeopardy did not attach. Id. "As a non-party, Torres was not at risk in
the forfeiture proceeding, and ``[w]ithout risk of a determination of
guilt, jeopardy does not attach, and neither an appeal nor further pros-
ecution constitutes double jeopardy.'" Id. (quoting Serfass v. United
States, 420 U.S. 377, 391-92 (1975)). Appellants attempt to distin-
guish Torres by noting that in Torres the civil forfeiture and the crim-
inal proceedings were parallel proceedings, whereas in this case the
criminal proceedings were instituted over two years after the forfei-
ture of the money. This distinction, however, is immaterial to the
issue of whether jeopardy attached to the uncontested forfeiture pro-
ceedings.
The other circuits that have considered the issue have unanimously
found that an administrative forfeiture resulting from a defendant's
failure to claim property cannot implicate double jeopardy. See
United States v. Keeton, 101 F.3d 48, 50 (6th Cir. 1996); United
States v. Morgan, 84 F.3d 765, 767 (5th Cir. 1996); United States v.
Clark, 84 F.3d 378, 381-82 (10th Cir. 1996); United States v. James,
78 F.3d 851, 855 (3d Cir.), cert. denied, ___ U.S. ___, 65 U.S.L.W.
3259 (U.S. Oct. 7, 1996) (No. 95-9224); United States v. Idowu, 74
F.3d 387, 394-95 (2d Cir.), cert. denied, ___ U.S. ___, 64 U.S.L.W.
3806 (U.S. June 3, 1996) (No. 95-8843); United States v. Sykes, 73
F.3d 772, 773 (8th Cir.), cert. denied, ___ U.S. ___, 64 U.S.L.W.
3818, 3821 (U.S. June 10, 1996) (No. 95-1824); United States v.
Cretacci, 62 F.3d 307, 310-11 (9th Cir.), cert. denied, ___ U.S. ___,
64 U.S.L.W. 3837 (U.S. June 17, 1996) (No. 95-7955). We find that
3
the rationale employed in these cases is valid because a contrary hold-
ing would allow a defendant to avoid criminal prosecution by failing
to contest the forfeiture of his property. Appellants' argument that
they were exercising their rights against self-incrimination by not
contesting the civil forfeiture is meritless. A defendant does not risk
incriminating himself by claiming that he owns property that is sub-
ject to forfeiture. Cretacci, 62 F.3d at 311. A defendant's claim of
ownership at a pre-trial suppression hearing of property that he con-
tends was unlawfully seized may not be used to prove his guilt. Id.Likewise, a defendant's claim of ownership of property that was sub-
ject to forfeiture may not be used for that purpose. Id.Further, these holdings are not inconsistent with the recent
Supreme Court decision in United States v. Ursery, ___ U.S. ___, 64
U.S.L.W. 4565, 4572 (U.S. June 24, 1996) (Nos. 95-345, 95-346),
which addressed not the attachment of jeopardy, but rather what was
sufficient to constitute criminal punishment for purposes of the Dou-
ble Jeopardy Clause. Therefore, jeopardy did not attach to the civil
forfeiture of Appellants' property. Because there was no former jeop-
ardy, Appellants were not subjected to double jeopardy by the subse-
quent criminal proceedings. See Serfass, 420 U.S. at 389.
Appellants next claim that the district court's calculation of their
base offense levels for LSD was erroneous. Appellants rely on United
States v. Turner, 59 F.3d 481 (4th Cir. 1995). Turner interpreted
Amendment 488 to the Sentencing Guidelines, effective November 1,
1993, which revised the method of calculating the weight of LSD in
the Sentencing Guidelines. United States Sentencing Commission,
Guidelines Manual, App. C., Amend. 488 (Nov. 1994) (1994 USSG).
The issue on appeal in Turner was how Amendment 488 governs the
determination of a defendant's base offense level in a case involving
liquid LSD. Id. at 483-84. As the Turner court noted, however,
Amendment 488 also applies to LSD on blotter paper. Id. at 484; see
Neal v. United States, ___ U.S. ___, 64 U.S.L.W. 4077, 4078 (U.S.
Jan. 22, 1996) (No. 94-9088); USSG § 2D1.1(c), n. *. The amended
guideline instructs the courts to give each dose of LSD on a carrier
medium a constructive or presumed weight of 0.4 milligrams. Id. For
purposes of determining the applicability of the statutory mandatory
minimum sentence, however, the sentencing court must take into
4
account the actual weight of the blotter paper with its absorbed LSD.
Neal, 64 U.S.L.W. at 4080.
At sentencing, Appellants admitted their involvement with approxi-
mately 300 hits of LSD, but denied the Government's claim that they
were involved with an additional 1300 hits of LSD and fifty-six kilo-
grams of marijuana. However, the court found based on the prepon-
derance of the evidence that an additional 1300 hits of LSD and fifty-
six kilograms of marijuana were attributable to the Appellants. Thus,
the court found the Appellants responsible for 1600 hits of LSD and
fifty-six kilograms of marijuana. The court further found that more
than one gram or more of a mixture containing LSD was involved in
the offense. The district court's findings were based on an unreview-
able determination of the credibility of the Government's witnesses.
See United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).
Because the court found that Appellants' offense involved one
gram or more of a mixture containing a detectable amount of LSD,
the statutory minimum sentence is five years or sixty months. 21
U.S.C. § 841(b)(1)(B)(v) (1994); see Neal , 64 U.S.L.W. at 4080. As
the Appellants were sentenced to sixty months incarceration, the dis-
trict court did not err. Further, pursuant to § 2D1.1(c), n. *, 1,600 hits
of LSD on blotter paper is equivalent to 640 milligrams or .64 grams
of LSD. Because one gram of LSD equals 100 kilograms of mari-
juana, .64 grams of LSD equals sixty-four kilograms of marijuana.
See USSG § 2D1.1(c), Drug Equivalency Table. Thus, with the addi-
tional fifty-six kilograms of marijuana, Appellants were responsible
for 120 kilograms of marijuana. The district court correctly found that
Appellants' base offense levels were 26. USSG § 2D1.1(c).
Accordingly, we affirm Appellants' convictions and sentences. 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
5