Carlos Casas v. United States ( 1996 )

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No. 95-3584
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Carlos Casas, *
*
Appellant, *
*
v. *
*
United States of America, *
*
Appellee, *
* Appeal from the United States
--------------------- * District Court for the
* Southern District of Iowa
Efren Casas, *
* [UNPUBLISHED]
Appellant, *
*
v. *
*
United States of America, *
*
Appellee. *
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Submitted: September 27, 1996
Filed: October 15, 1996
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Before McMILLIAN, WOLLMAN and MURPHY, Circuit Judges.
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PER CURIAM.
Carlos Casas and Efren Casas appeal from the final judgment of the
District Court1 for the Southern District of Iowa denying their 28 U.S.C.
§ 2255 motion to vacate their sentences. For the reasons discussed below,
we affirm.
1
The Honorable Charles R. Wolle, Chief Judge, United States
District Court for the Southern District of Iowa.
A jury found Carlos and Efren Casas guilty of conspiring to
distribute cocaine and distributing it, in violation of 21 U.S.C. §§ 841
(a)(1) and 846. The district court sentenced Carlos to 174 months
imprisonment and Efren to 168 months, and defendants appealed. The
district court also determined that two pieces of property were forfeitable
under 21 U.S.C. § 853(a)(2). Neither defendant appealed the forfeiture
decision.
On direct appeal, we affirmed defendants' drug convictions. We
rejected defendants' argument that the district court erred in admitting
under Fed. R. Civ. P. 404(b) evidence of Efren's 1987 arrest, concluding
that the evidence was properly admitted as evidence of the charged
conspiracy to show the brothers had agreed to sell cocaine, which precluded
the need to address admission under Rule 404(b). We also held that in the
absence of a notice of appeal of the forfeiture decision, we lacked
jurisdiction over defendants' claim of error in the forfeiture proceedings.
United States v. Casas, 999 F.2d 1225, 1229-32 (8th Cir. 1993), cert.
denied, 510 U.S. 1078 (1994).
In their subsequent section 2255 motion, Carlos and Efren each argued
that he received ineffective assistance of counsel when counsel failed to
appeal the forfeiture order, and that the forfeiture violated double
jeopardy. Carlos also claimed he was prejudiced by the admission of
Efren's 1987 conviction. In denying relief, the district court concluded
that the record showed defendants raised the 1987 arrest evidence claim on
direct appeal; that there was no right to effective assistance of counsel
in forfeiture proceedings because they are civil in nature, and in any
event defendants were not prejudiced; and that the forfeiture did not
implicate double jeopardy because it was a cumulative punishment imposed
in a single proceeding.
We agree with the district court that defendants may not relitigate
in this section 2255 motion their unsuccessful challenge
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to the admissibility of the 1987 arrest evidence. See Dall v. United
States, 957 F.2d 571, 572 (8th Cir. 1992) (per curiam). We do not consider
Carlos's contention--raised for the first time on appeal--that counsel was
ineffective for not requesting a limiting instruction regarding this 1987
arrest evidence. See Fritz v. United States, 995 F.2d 136, 137 (8th Cir.
1993) (court will not consider issues raised for first time on appeal
absent plain error resulting in miscarriage of justice), cert. denied, 510
U.S. 1075 (1994).
We also agree the Casases' double jeopardy argument lacks merit. The
government charged the forfeiture counts in the criminal indictment under
21 U.S.C. § 853, and they were tried to the district court at the time of
the sentencing hearing. Hence, the forfeiture and criminal prosecution
were part of a single proceeding and there was no double jeopardy
violation. See United States v. Smith, 75 F.3d 382, 384 (8th Cir. 1996)
(double jeopardy concerns do not arise when multiple punishments are
imposed in single proceeding).
As for the Casases' claims their counsel was ineffective for not
appealing the forfeiture orders, we have not yet decided whether a Sixth
Amendment right to counsel attaches to criminal forfeiture proceedings.
Cf. United States v. $100,375.00 in U.S. Currency, 70 F.3d 438, 440 (6th
Cir. 1995) (no Sixth Amendment right to counsel in civil forfeiture
proceedings). We need not decide this issue, however, because in any event
we agree with the district court's alternative conclusion that the Casases
did not show prejudice. See Strickland v. Washington, 466 U.S. 668, 687-
88, 694 (1984).
Accordingly, we affirm the judgment of the district court.
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A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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