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 1996-04

Gregory J. Cooke v. United States ( 1996 )


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  •                                         ___________
No. 95-3164
___________
Gregory J. Cooke,                            *
*
Appellant,                   *
*   Appeal from the United States
v.                                   *   District Court for the
*   District of Minnesota.
United States of America,                    *       [UNPUBLISHED]
*
Appellee.                    *
___________
Submitted:    March 26, 1996
Filed:   April 4, 1996
___________
Before McMILLIAN, WOLLMAN, and MURPHY, Circuit Judges.
___________
PER CURIAM.
Gregory J. Cooke appeals from the district court's1 order denying his
28 U.S.C. § 2255 motion to vacate his sentence.              We affirm.
In February 1985, the United States Drug Enforcement Administration
(DEA)       seized   two   automobiles    registered    to   Cheryl   Cooke,   and   two
automobiles registered to Gregory Cooke, as part of an investigation into
Gregory's drug trafficking activities.            The DEA initiated administrative
forfeiture proceedings under 21 U.S.C. § 881; it denied Cheryl's petition
for remission or mitigation of the forfeiture for her two automobiles.                No
further claims or cost bonds were filed, and all four vehicles were
forfeited.
Gregory Cooke was subsequently convicted of numerous drug- and tax-
related offenses; the district court sentenced him to twenty-
1
The Honorable Robert G. Renner, United States District Judge
for the District of Minnesota.
five years imprisonment without parole, a three-year special parole term,
and a $100,000 fine.      This court affirmed his conviction and sentence.
United States v. O'Connell,
    841 F.2d 1408
    , 1414, 1433 (8th Cir.), cert.
denied,
    487 U.S. 1210 
    (1988), and cert. denied,
    488 U.S. 1011 
    (1989).
In December 1994, Cooke filed the instant section 2255 motion,
arguing that his conviction and sentence following the forfeitures violated
the Double Jeopardy and Excessive Fines Clauses, and that his prison
sentence was excessive.     The government responded that jeopardy did not
attach to the uncontested administrative forfeitures, as Cooke did not
assert any cognizable interest in the two vehicles registered to his wife
and he had not contested the forfeiture of the other two vehicles; and that
Cooke's challenge to his prison sentence as excessive was barred because
he raised the claim in his direct criminal appeal.     Cooke replied, inter
alia, that, because the cars were forfeited during his criminal trial, he
could not defend the forfeiture without jeopardizing his Fifth Amendment
right against self-incrimination.    The district court denied relief.
The Double Jeopardy Clause protects against three abuses:      a second
prosecution for the same offense after acquittal, a second prosecution for
the same offense after conviction, and multiple punishments for the same
offense.   North Carolina v. Pearce,
    395 U.S. 711
    , 717 (1969).   Before Cooke
can assert that his conviction violated the Double Jeopardy Clause, he must
demonstrate that he was subjected to punishment in a prior proceeding.   See
Serfass v. United States,
    420 U.S. 377
    , 393 (1975).   Because Cooke did not
contest the administrative forfeitures, he was not a party to and was not
placed in jeopardy by those civil proceedings.   See United States v. Sykes,
    73 F.3d 772
    , 773-74 (8th Cir. 1996); United States v. Pena,
    67 F.3d 153
    ,
155-56 (8th Cir. 1995).     Because Cooke was not a party to the forfeiture
proceedings, there was no adverse adjudication of his culpability or a
determination of his ownership
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interest in the forfeited property.     See United States v. Torres,
    28 F.3d 1463
    , 1465-66 (7th Cir.), cert. denied,
    115 S. Ct. 669 
    (1994).
We also reject Cooke's argument that he risked waiver of his Fifth
Amendment   privilege    against   self-incrimination   had    he   defended   the
forfeiture action.      Cf. United States v. Clementi,
    70 F.3d 997
    , 1000 n.4
(8th Cir. 1995) (claiming ownership of property by joining forfeiture
action is not self-incriminating because statute at issue did not forbid
ownership of firearms).
To assert a violation of the Excessive Fines Clause, the defendant
bears the initial burden of showing gross disproportionality.             United
States v. Alexander,
    32 F.3d 1231
    , 1235 (8th Cir. 1994).       We agree with the
district court that Cooke did not meet that burden.
Finally, Cooke's claim that his twenty-five-year sentence for his
continuing-criminal-enterprise conviction was excessive was raised and
decided against him on direct appeal.
    O'Connell, 841 F.2d at 1425 
    n.9.
It cannot be relitigated in a section 2255 motion.            See Dall v. United
States,
    957 F.2d 571
    , 572 (8th Cir. 1992) (per curiam).
Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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