The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 94-5942
GERARD VALMORE BROWN, a/k/a
Blackie, a/k/a Gerald Kennedy,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5956
MELVIN SANDERS, a/k/a Pops,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5957
ANDRE SIMPSON,
Defendant-Appellant.
Appeals from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
N. Carlton Tilley, Jr., District Judge.
(CR-93-281)
Argued: December 8, 1995
Decided: January 31, 1996
Before WIDENER, WILKINSON, and HAMILTON,
Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: W. David Lloyd, LLOYD & LLOYD, Greensboro, North
Carolina, for Appellant Sanders; Charles D. Luckey, BLANCO,
TACKABERY, COMBS & MATAMOROS, P.A., Winston-Salem,
North Carolina, for Appellant Brown; Louis Carr Allen, III, FLOYD,
ALLEN & JACOBS, Greensboro, North Carolina, for Appellant
Simpson. Robert Michael Hamilton, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee. ON BRIEF: Walter C.
Holton, Jr., United States Attorney, Gill P. Beck, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Gerard Valmore Brown, Melvin Sanders, and Andre Simpson raise
numerous objections to their drug and money laundering convictions.
Sanders contends that his criminal trial, which followed an adminis-
trative forfeiture of property, constituted double jeopardy. Defendants
also object to various other rulings by the district court during voir
dire, the trial, and sentencing. We affirm the judgment of the district
court.
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I.
On December 20, 1993, defendants Brown, Sanders, and Simpson
were each charged with conspiring to distribute marijuana and
cocaine. In addition, Brown and Sanders were charged with conspir-
acy to money launder, and Sanders was charged with money launder-
ing. The evidence against the three included: the testimony of
coconspirators, intercepted conversations, and proof of large expendi-
tures typical of drug proceed laundering. On January 22, 1993, before
the trial had commenced, defendant Sanders consented to the admin-
istrative forfeiture of various vehicles, jewelry, and $11,308 in cash
in exchange for the return of a "Rolex-Diamond watch and matching
diamond ring." Nowhere in this agreement did Sanders claim owner-
ship of the forfeited property.
During jury selection, the government used two peremptory chal-
lenges against black jurors. The defendants objected on the grounds
that the peremptory challenges constituted an attempt by the prosecu-
tion to exclude blacks from the jury. The government responded by
pointing out that four black jurors had been seated and that the second
peremptory challenge had been used to assist an engineering student
who would have had to miss a significant number of classes had she
served on the jury. The district court ultimately found no evidence of
systematic racial exclusion, and the trial went forward, lasting two
weeks.
At the trial's conclusion, defendant Sanders sought an instruction
for the money laundering counts that would have directed the jury to
return a guilty verdict only if the unlawful activity resulted from a
conspiracy to distribute both marijuana and cocaine. As the laundered
income had been generated by the sale of cocaine rather than mari-
juana, the court instead instructed the jury that it might find the defen-
dant guilty based upon a conspiracy to distribute cocaine alone. On
March 21, 1994, the defendants were convicted on all charges.
During sentencing, Simpson was represented by both his retained
counsel, Thomas Taylor, and a court appointed counsel, Urs Gsteiger.
While Simpson desired the withdrawal of Mr. Taylor, and then later,
Mr. Gsteiger, the district court denied his motions. Simpson eventu-
ally received a sentence of 210 months, while Sanders and Brown
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received 292 and 262 months, respectively. Sanders and Brown both
received two-point enhancements under the Sentencing Guidelines for
obstruction of justice based upon their false testimony at trial.
II.
A.
First, defendant Sanders contends that by virtue of the pre-trial
administrative forfeiture of drug proceeds, his subsequent trial consti-
tuted double jeopardy. Sanders, however, never claimed an ownership
interest in the forfeited assets. Absent a "claim in the forfeiture pro-
ceeding, we have no reason to believe that [a person] owned or had
any interest" in the property. United States v. Torres, 28 F.3d 1463,
1465 (7th Cir. 1994), cert. denied, 115 S. Ct. 669 (1994). And if a
person lacks any interest in seized property, "its forfeiture d[oes] not
impose any penalty on him." Id. at 1466.
Here, Sanders' consent to forfeiture did not allege any ownership
interest in the forfeited property. Instead, it was actually a waiver of
any ownership interest in the seized property. Indeed, both the gov-
ernment and Sanders benefited from this agreement. The government
was able to avoid litigation, and Sanders was allowed to keep a
"Rolex-Diamond watch and matching diamond ring," which he stood
to lose had he laid claim to the property. As Sanders never actually
claimed ownership and even waived his opportunity to do so in the
future, no penalty was imposed upon him by the property's seizure.
Even had Sanders contested the administrative forfeiture of his
assets, double jeopardy would not have existed because forfeiture of
drug proceeds is not necessarily a "punishment." United States v.
Tilley, 18 F.3d 295, 298 (5th Cir. 1994), cert. denied, 115 S. Ct. 574
(1994). Civil sanctions for wrongful conduct are considered a punish-
ment under the Double Jeopardy Clause only "when the sanction ser-
ve[s] a traditional goal of punishment, that is, deterrence or
retribution, instead of the remedial goal of reimbursing the govern-
ment and society for the costs that result from that wrongful conduct."
Id., citing United States v. Halper, 490 U.S. 435, 448-49 (1989); see
also United States v. Cullen, 979 F.2d 992, 994-95 (4th Cir. 1992).
As "the forfeiture of proceeds of illegal drug sales serves the wholly
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remedial purposes of reimbursing the government for the costs of
detection, investigation, and prosecution of drug traffickers and reim-
bursing society for the costs of combatting the allure of illegal drugs,
caring for the victims of the criminal trade . . . lost productivity, etc.,"
it is not "punishment" within the meaning of the Double Jeopardy
Clause. Tilley, 18 F.3d at 299-300.*
B.
Defendants also allege that the government's use of peremptory
challenges against two black jurors amounted to racial discrimination.
To establish such a case, "the defendant must show that [the] facts
and any other relevant circumstances raise an inference that the prose-
cutor used [peremptory challenges] to exclude the veniremen from the
[ ] jury on account of their race." Batson v. Kentucky, 476 U.S. 79,
96 (1986). Batson explained that "a `pattern' of strikes against black
jurors included in the particular venire might give rise to an inference
of discrimination." Id. at 97.
Here, the district court questioned the prosecutor, observed his
demeanor, and ultimately found no such evidence of a pattern of
racial exclusion. We see no reason to overturn this ruling. The gov-
ernment attorney challenged only two of six black venire members
despite having a sufficient number of challenges to exclude others.
Moreover, the government offered a racially-neutral explanation for
its second peremptory challenge, namely that the challenged juror was
an engineering student who would have missed numerous classes had
she served on the jury. Because such circumstances indicate an
absence of racial exclusion, they "weigh[ ] heavily in support of the
district court finding of no discrimination." United States v. Lane, 866
F.2d 103, 106 (4th Cir. 1989). We thus reject defendants' Batson
challenge.
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*We are aware that the Supreme Court has granted certiorari in two
similar cases, United States v. Ursery, 59 F.3d 568 (6th Cir. 1995), and
United States v. $405,089.23 U.S. Currency, 33 F.3d 1210 (9th Cir.
1994). See United States Currency, 64 U.S.L.W. 3161 (U.S., Jan. 12,
1996). In both those cases, however, the defendants fought the forfeiture
actions in court. Here, defendant Sanders never claimed ownership to the
property that was eventually forfeited.
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C.
Defendant Sanders also contests the district court's denial of his
proposed jury charge, which would have instructed the jury to find
Sanders guilty of money laundering only if he had conspired to laun-
der proceeds from the sale of both cocaine and marijuana. The evi-
dence at trial, however, indicated that it was the proceeds from
cocaine sales that defendants sought to launder. Moreover, Sanders'
requested jury charge was simply contrary to law. The statute in ques-
tion, 18 U.S.C. § 1956, merely requires a finding of any one of sev-
eral specified unlawful activities. Sanders' laundering of cocaine
proceeds suffices to fulfill this requirement.
D.
Next, Simpson objects to the district court's refusal to remove his
attorneys during his sentencing. There was, however, no evidence of
any conflict of interest on the part of Simpson's counsel, and Simpson
was in fact represented by not one, but two attorneys, throughout his
sentencing proceedings. While Simpson alleges that his attorneys
failed to "deal with [his] medical problems at sentencing," i.e. by not
obtaining a downward departure under the Sentencing Guidelines for
his poor health, the evidence from Simpson's most recent medical
exam indicated that Simpson was ineligible for such a departure. In
short, the trial court did not err in denying Simpson's motion.
E.
Finally, defendants Brown and Sanders contest the district court's
enhancement of their sentences for obstruction of justice under the
Sentencing Guidelines. Section 3C1.1 of the Sentencing Guidelines
explains: "If the defendant wilfully obstructed or impeded, or
attempted to obstruct or impede, the administration of justice during
the investigation, prosecution, or sentencing of the instant offense,
increase the offense level by 2 levels." Given the overwhelming
weight of evidence against Sanders and Brown, including wiretap
conversations of their illegal activities, we think that the district court
was correct in concluding that their contrary testimony constituted
obstruction of justice pursuant to the Sentencing Guidelines. See
United States v. Dunnigan, 113 S. Ct. 1111 (1993).
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III.
For the foregoing reasons, we affirm the judgment of the district
court.
AFFIRMED
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