United States v. May

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 95-50734
(Summary Calendar)
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UNITED STATES OF AMERICA,
Plaintiff-Appellant
Cross-Appellee,
versus
STEVEN E MAY, Sheriff,
Defendant-Appellee
Cross-Appellant.
Appeal from the United States District Court
For the Western District of Texas
(A-92-CR-187)
July 11, 1996
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Steven E. May pleaded guilty to conspiracy to possess
marijuana with intent to distribute, in violation of 21 U.S.C.
§ 841(a)(1) and 846, and laundering of monetary instruments, in
violation of 18 U.S.C. § 1956(a)(1). May did not appeal his
*
Pursuant to Local Rule 47.5, the Court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in Local Rule 47.5.4.
conviction or sentence. May subsequently filed a 28 U.S.C. § 2255
motion to vacate, set aside, or correct his sentence alleging that
the civil forfeiture of his property, prior to his guilty plea,
constituted “punishment” and therefore May’s subsequent conviction
and sentence violated double jeopardy principles. The district
court granted in part and denied in part May’s § 2255 motion. The
district court found that the forfeiture of May’s property under 21
U.S.C. § 881(a)(7) constituted punishment for May’s illegal drug
activity.2 Accordingly, the district court determined that May’s
subsequent plea and sentence on drug charges violated double
jeopardy principles. The district court denied May’s § 2255 motion
as to his conviction for laundering of monetary instruments,
finding the criminal conduct to be distinct from that upon which
the forfeiture was based. The government appeals the district
court’s decision to grant, in part, May’s § 2255 motion. May
cross-appeals the district court’s decision to deny, in part, his
§ 2255 motion.
After a careful review of the record, we conclude that May’s
plea and sentence, entered subsequent to the forfeiture of his
assets, did not constitute double jeopardy. May failed to appear
and contest the forfeiture of his assets. As we have previously
2
Some of May’s property was forfeited under 21 U.S.C. § 881(a)(6)
(applicable to “drug proceeds”) and some under § 881(a)(7) (applicable to
property used to “facilitate” drug transactions). The district court properly
determined that the property forfeited as drug proceeds under § 881(a)(6) was not
subject to double jeopardy analysis. United States v. Tilley, 18 F.3d 295, 299-
300 (5th Cir.), cert. denied, ___ U.S. ___, 115 S. Ct. 574, 130 L. Ed. 2d 490
(1994).
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held, “The defendant must be a party to the forfeiture proceeding
for jeopardy to attach." United States v. Gonzalez, 76 F.3d 1339,
1343 (5th Cir. 1996); see also United States v. Buchanan, 70 F.3d
818, 830 n.12 (5th Cir. 1995) (holding that jeopardy does not
attach where “defendant is a non-party to a forfeiture proceeding,
and does not assert ownership over the property”), cert. denied,
___ U.S. ___, 116 S. Ct. 1340, 134 L. Ed. 2d 490 (1996); United
States v. Arreola-Ramos, 60 F.3d 188, 193 (5th Cir. 1995) (holding
that "as Arreola did not appear and contest the forfeiture, he was
never in jeopardy"); accord United States v. Denogean, 79 F.3d
1010, 1013 (10th Cir. 1996) (holding that jeopardy did not attach
in a judicial in rem forfeiture because the “Defendant did not
judicially contest the government’s civil forfeiture action”);
United States v. $184,505.01 In U.S. Currency, 72 F.3d 1160, 1168
(3d Cir. 1995) (holding that defendant must be a party in order for
jeopardy to attach in either judicial or administrative forfeiture
proceedings). Because May failed to contest the forfeiture of his
assets, he was never placed in jeopardy. Therefore, May’s
subsequent plea and sentence did not violate double jeopardy
principles. See Arreola-Ramos, 60 F.3d at 193 (“Without former
jeopardy, double jeopardy cannot arise.”). May’s § 2255 motion
should have been denied as to both his marijuana conviction and his
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conviction for laundering monetary instruments.3
For the foregoing reason, the district court’s order granting,
in part, May’s § 2255 motion is REVERSED. The district court’s
order denying, in part, May’s § 2255 motion is AFFIRMED.
3
May makes much of the fact that in his plea agreement, May
acknowledged ownership over the forfeited property, and agreed not to contest the
forfeiture. We find, however, that these facts do not alter our analysis in this
case. May’s plea agreement was not signed and entered by the court until after
the forfeiture had already taken place. Therefore, any rights May might have had
to the forfeited property had already been extinguished. In addition, the fact
that May acknowledged ownership over the property does not obviate the need for
him to appear to challenge the forfeiture in order for jeopardy to attach. See
United States v. James, 78 F.3d 851, 855 (3d Cir. 1996) (noting that the key
factor in assessing whether jeopardy attached was not whether court knew property
belonged to defendant, but whether defendant appeared and contested the
forfeiture).
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