United States v. Harvey ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-7661
LEON DURWOOD HARVEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CR-85-224-A, CA-95-926-AM)
Submitted: December 17, 1996
Decided: January 22, 1997
Before MURNAGHAN and ERVIN, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Jonathan Shapiro, Michael William Lieberman, Alexandria, Virginia,
for Appellant. Karen Patrice Tandy, Assistant United States Attorney,
Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellant appeals the district court's order denying his motion
filed under 28 U.S.C. § 2255 (1994), amended by Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.
1214. He claims primarily that his criminal prosecution for drug-
related offenses violated the Double Jeopardy Clause because prop-
erty previously was civilly forfeited based upon the same underlying
conduct. Additionally, he claims that his conviction for engaging in
a continuing criminal enterprise (CCE) cannot stand because two
prior convictions for drug conspiracies were used as evidence to sup-
port his CCE conviction. We affirm.
With regard to the forfeiture issue, we first note that our decision
in United States v. 3301 Burgundy Rd., 728 F.2d 655 (4th Cir. 1984),
raises serious doubts as to whether there exists a final order of forfei-
ture of the property at question. In Burgundy Road, we vacated the
district court's order directing the forfeiture to the United States of the
proceeds from the sale of property allegedly used by Appellant and
others as a meeting place to plan ways of smuggling drugs into this
country. Id. at 656. On remand, the district court dismissed the action
because it had lost jurisdiction over the proceeds, which had been
transferred to the Department of Justice in Washington, D.C. In light
of our order vacating the order of forfeiture, we question whether
there has been a final order of forfeiture in this case.
Even if there was a forfeiture, there was no double jeopardy viola-
tion. The Supreme Court recently held that civil in rem forfeitures
under 21 U.S.C. § 881(a)(6) (1994) do not constitute punishment for
double jeopardy purposes. United States v. Ursery, ___ U.S. ___ 64
U.S.L.W. 4565, 4571 (U.S. June 24, 1996) (No. 95-345). The forfei-
ture at issue here was obtained pursuant to § 881(a)(6). Therefore,
Appellant's subsequent conviction and sentence did not violate the
Double Jeopardy Clause.
Appellant also challenges his CCE conviction on double jeopardy
grounds. With respect to this and the remaining issues on appeal, we
have reviewed the record, briefs, and other material before us and find
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no reversible error. Accordingly, we affirm on the reasoning of the
district court. United States v. Harvey, Nos. CR-85-224-A; CA-95-
926-AM (E.D. Va. Sept. 27, 1995).
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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